A bench of Justices Chandrachud, Bopanna and Pardiwala have done not just the higher judiciary but India proud with a judgment firmly rooted in the 21st century ethos of freedom. They have accurately interpreted Article 21 of the Constitution of the Republic of India to mean that marital status (or lack thereof) cannot be a factor in determining the right of a woman to choose whether or not to terminate a pregnancy. Going even further, the Supreme Court held that even a husband could be guilty of rape, were the act of sexual intercourse with his wife to be against her will. A marriage licence should not be used as a license to rape, contrary to some views expressed earlier by a section of jurists. In the absence of giving a female victim of marital rape the right to an abortion, such a stance would have the effect of “compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her”, the 3-judge bench declared. The freedoms assured by the Constitution cannot be restricted to those who are married, and thereby get taken away from those who are unmarried. The Supreme Court through its verdict equalised that right irrespective of marital status. As the bench noted, “The right to decisional autonomy also means that women may choose the course of their lives”. They may choose to marry or remain single, and if the latter, have the right to consensual relationships. As a consequence of an earlier SC judgment, such a relationship between consenting adults may be of same sex or follow the more common pattern of man-woman relationship. In such a context, the view of some jurists that those of a particular faith have the right to marry underage women needs examination by the apex court, as it goes entirely counter to the right of a woman belonging to any faith to have the same rights as any other woman. It is in such a context that relatively modern countries, including Turkey and Egypt, have a Uniform Civil Code, something yet to be introduced in India. Astonishingly, commentators across both sides of the Atlantic object to a UCC in India, even while that is the law in their own countries. They evidently believe that the people of India come from a species different from their own, and therefore that such discrimination is permissible, when it is not.
By its judgement, which aligns with the needs and values of the 21st century, the Supreme Court has expanded the scope of the Medical Termination of Pregnancy Act to include unmarried women on the list of those having the right under the MTP Act to resort to termination of pregnancy between 20 and 24 weeks. They have held that the denial of such a right to unmarried women is violative of the rights guaranteed under Article 14 of the Constitution. By such a decision, the Supreme Court of India has shown that it is forward looking, as is needed in a country where the majority of citizens are young. Such a stance is in contrast to the US Supreme Court, which through a majority of six ultra-orthodox justices appears set on a course of rolling back rights and reforms by almost a century. The Roberts Court will in years to come be bracketed with the Taney Court, which sent Dred Scott back to slavery, a situation that Chief Justice Taney regarded as perfectly compatible with his religious principles. It must be said that the same belief in a restriction of freedoms to a limited number of people rather than to all was behind the massacre of the Inca and the Aztec, not to mention the American Indian tribes or the horrible murders carried out in Africa and South America by invaders from Europe. Pope Francis has acted correctly in asking for forgiveness in the name of the Catholic Church. The Pontiff has shown a willingness to change with the times that seems to be absent in several justices of the US Supreme Court. The Roberts court has courted infamy by overturning Roe vs Wade, a move that could have immense consequences on the very unity of the US. Fortunately for the six ultra-conservative zealots on the US Supreme Court, President Joe Biden refuses to initiate the obvious step of expanding the Court from nine to 15 judges. Given the expansion in the workload and in the complexity of modern life, such an expansion would be necessary even were the Court not to be in the grip of judges who apparently are unaware of the harm they are doing to their country. What a contrast the US Supreme Court under John Roberts is to the Supreme Court of India, which through some path breaking judgments is seeking to move the country forward rather than in the reverse direction.
MADHAV DAS NALAPAT