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The Puttaswamy Effect: Exploring the Right to Abortion in India

The purpose of this paper is a) to discuss the relevance of the landmark Supreme Court judgement of Justice K.S. Puttaswamy (Retd.) and Ors. vs. Union of India & Ors. for women’s access to abortion in India and b) to examine the changes brought in by the recent amendment to the law on abortion in India, in terms of their compliance with the right to privacy.

The paper discusses the relevance of a constitutionally guaranteed right to privacy, for accessing abortion in India. What emerges from this exercise is that Puttaswamy has offered much needed clarity and nuance to some of the earlier jurisprudence on women’s right to bodily autonomy and privacy. However, abortion in India continues to be a State regulated affair, and due to the limitations of privacy recognized even in Puttaswamy e.g. ‘compelling state interest’ this position is unlikely to change. Therefore, the right to abortion in India is available in a very limited sense.

Since the intent of this paper is to use a privacy-based framework to justify women’s reproductive rights, some limitations of a privacy-based approach have also been discussed. Specifically, the paper looks at feminist arguments regarding privacy’s role in maintaining hetero-patriarchal structures that constrain women’s choices; and the lack of privacy’s ability to cast a positive obligation upon the State to ensure access to abortion-related services.

In 2021, the Parliament of India passed the Medical Termination of Pregnancy (Amendment) Act. This amendment was brought in with the objective of increasing access to safe abortion in India, which would go on to protect the dignity, autonomy, bodily integrity, and confidentiality of women. The paper examines the issues that women in India face while trying to access abortion. Some of these issues are lack of approved health care professionals and facilities; concerns with the rigid timelines under the law, requiring women to approach courts; the practice of insisting on consent from husband/family for an abortion; and a lack of information on safe abortion.

The paper then argues that certain gaps in law and policy remain unaddressed, even after the recent amendment. For instance, the amendment has introduced changes such as setting up of permanent medical boards, changing the requirement from two doctors’ consent to one doctor for pregnancies up to 12 weeks, expanding the law to cover unmarried women, and introducing penal provisions in case privacy and confidentiality of women is violated. –However, the practical requirement is for more State-run approved facilities to be made available to women seeking an abortion.

Until such challenges are resolved, the paper finds that the law on abortion in India is vulnerable to a constitutional challenge, on the grounds of violation of the right to privacy guaranteed to Indian women under Puttaswamy. The paper thus concludes by suggesting some changes to the new law on abortion. These include allowing abortion on request for early-stage pregnancies and ensuring the availability of approved medical practitioners and facilities through changes in policy. Such changes, if made, could bring the law in consonance with the right of privacy as guaranteed in Puttaswamy.

Go to The Puttaswamy Effect: Exploring the Right to Abortion in India

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