On 19.09.2016, a Division Bench of the High Court of Bombay delivered a landmark verdict in a suo motu Public Interest Litigation recognizing that imprisoned women, like other women, have the right to make choices with regard to motherhood and right to facilities to undergo safe abortions.
Significantly, the decision also affirmed the right to abortion for women irrespective of their marital status, observing that every woman under Article 21 enjoys the right to life and bodily autonomy, and must, therefore, be at liberty to make the choice on the question of motherhood.
The Tata Institute of Social Sciences in collaboration with Centre for Reproductive Rights organized a roundtable conference on 23rd Sept 2017 to analyze the impact of the decision and the extent of its implementation one year after the verdict was delivered.
The discussion engaged experts from all fields and members of the State and Civil Society stakeholders including retired Justice Roshan Dalvi of the Bombay High Court, representatives of the
State Health Department, the Prison Administration of Maharashtra, the State Human Rights Commission, lawyers, and activists, like Centre for Law and Policy Research, who are working on the issue of access to safe abortions for women in Maharashtra.
Hon’ble Justice Mridula Bhatkar, sitting judge of the High Court of Bombay and co-author of the landmark verdict opened the discussion, introducing the decision and tracing the challenges faced in the context of abortion in India.
She highlighted that the law on medical termination of pregnancy in India has seen a shift in focus from the will of the woman to the opinion of the medical fraternity.
In particular, in the case of women in prison, there was a dominant notion of judicial custody over the body of the individual thus giving rise to the presumption that the permission of the Court would be necessary for an incarcerated woman to terminate her pregnancy, despite the Medical Termination of Pregnancy Act (MTP Act), 1971 laying down no such requirement.
Further, The MTP Act, 1971 remains silent on the question of whether the choice motherhood, which is the consequential result of a pregnancy, should be a determinant factor for termination of the pregnancy.
There was broad consensus that the law in India needs to be amended to adopt a rights-based approach to the issue of abortion, placing women at the forefront with other stakeholders like the medical fraternity and the institution of the family being facilitators.
Further, there was a grave need for sensitization of both the prison authorities in particular and the medical fraternity at large on the issue of abortion to eliminate a mechanical approach to the subject.
The conference closed on an optimistic note, with the hope that the decision of the High Court of Bombay in Suo Motu PIL 1/2016 could be the first step towards realizing the Right to Abortion as a fundamental right for women across the country, particularly as the Supreme Court had recognized a fundamental Right to Privacy under the Constitution.