A Matter Of Choice

What the right-to-privacy judgment means for India’s abortion law

- Zeba Siddiqui

In mid August 2017, a ten-year-old girl gave birth by caesarean section in a Chandigarh government hospital. Her parents reportedly did not tell her she had had a baby removed from her body, saying instead that the procedure was to remove a stone from her stomach.

The girl was allegedly raped by her uncle, repeatedly, over several months, and taken to the hospital after she complained of a stomach ache. There, doctors discovered that she was over 30 weeks pregnant. Her parents filed a public interest litigation in the Supreme Court to seek approval for an abortion (under Indian law, a woman seeking to terminate a pregnancy that is over 20 weeks old must prove that the pregnancy threatens her life). On 28 July, the petition was heard by a bench comprising the then Chief Justice JS Khehar and Justice DY Chandrachud, who dismissed the plea because, according to reports, they took “note of a medical report that abortion was neither good for the girl nor for the foetus.”

About a month later, Khehar and Chandrachud were both part of a nine-judge bench that unanimously decided that Indians have a fundamental right to privacy, under Article 21 of the constitution, which deals with the right to life and liberty. The judgment stated that privacy “allows each human being to be left alone in a core which is inviolable.”