The Supreme Court of India has allowed minor females to abort their pregnancies from consensual sex without disclosing their identity to the police.
A Supreme Court bench headed by Justice DY Chandrachud ruled that a doctor performing the abortion of a minor female is exempt from disclosing the identity of the minor to the police and in any criminal proceedings in the matter.
The SC said, "For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP (Registered Medical Practitioner), only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act (information to local police).
"The RMP, who has provided information under Section 19(1) of the POCSO Act (in reference to a minor seeking medical termination of a pregnancy under the MTP Act) is also exempt from disclosing the minor's identity in any criminal proceedings which may follow from the RMP's report under Section 19(1) of the POCSO Act."
Section 19(1) of the POCSO Act states that anyone having an apprehension that a sexual assault has been committed on a child has to report it to the police. Since Section 375 of the Indian Penal Code (IPC) considers sex with a female under the age of 18 —a minor— as rape, a doctor aborting a minor's pregnancy has until now been required to inform such a matter to the police.
In a landmark verdict on Thursday, the Supreme Court also included unmarried women for abortion between 20-24 weeks of pregnancy under the Medical Termination of Pregnancy Act, saying limiting the provision to cover only married women will render it discriminatory and violative of Article 14 of the Constitution of India, which deals with the fundamental right to equality.
The SC has also held that the meaning of the words "sexual assault" or "rape" under the rules of the MTP Act includes a husband's act of sexual assault or rape committed on his wife.
A bench of Justices D Y Chandrachud, A S Bopanna and J B Pardiwala said to ensure that the benefit of Rule 3B(b) is extended to all women aged below 18 who engage in consensual sexual activity, it is necessary to harmoniously read both the Protection of Children from Sexual Offences (POCSO) Act and the MTP Act.
The bench said that an interpretation of the MTP Act, as explained above, would prevent any conflict between the statutory obligation of the RMP to mandatorily report the offence under the POCSO Act and the rights of privacy and reproductive autonomy of the minor under Article 21 of the Constitution.
The top court said that it could not possibly be the legislature's intent to deprive minors of safe abortions.
"Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to 24 weeks. They have been included in the list of special categories of women because adolescents who engage in consensual sexual activity may be unaware that sexual intercourse often results in pregnancy or be unable to identify the signs of a pregnancy," said the Supreme Court.
The bench added that the POCSO Act is gender neutral and criminalises sexual activity by those below the age of 18.
"Under the POCSO Act, factual consent in a relationship between minors is immaterial. The proscription contained in the POCSO Act does not - in actuality - prevent adolescents from engaging in consensual sexual activity. We cannot disregard the truth that such activity continues to take place and sometimes leads to consequences such as pregnancy," said the Supreme Court.
The apex court noted that the legislature was no doubt alive to this fact when it included adolescents within the ambit of Rule 3B of the MTP Rules.
It said that the absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions as well as how contraceptive devices and methods may be deployed to prevent pregnancies.
"The taboos surrounding pre-marital sex prevent young adults from attempting to access contraceptives. The same taboos mean that young girls who have discovered the fact that they are pregnant are hesitant to reveal this to their parents or guardians, who play a crucial role in accessing medical assistance and intervention," the top court said.
The top court noted that the benefit of safe abortion under the MTP Act and the corresponding rules is granted to women with disabilities, foetal abnormalities, or a victim of disaster or emergency but the provisions do not enumerate all the potential changes that a woman's material circumstances may undergo.
It added it is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances.
"Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in," it said and added that the benefit granted by the provisions must be understood as extending to all women who undergo a change of material circumstances.
It said that women may undergo a sea change in their lives for reasons other than separation from their partner as included under the provisions.
"If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them.
"This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women", the bench said.
(With PTI inputs)