Jul 1, 2022

What does the Roe v Wade judgment have to do with Indian law?

The US Supreme Court overruled the historic 1973 Roe v. Wade judgment, which made abortion a constitutionally protected right for American women. This landmark judgment had an effect on constitutional laws in many other countries, including India.

What was the Roe v Wade judgment all about?

In this US case, a Texas law which prohibited abortion, except when medically required to save the mother’s life, was challenged as violating the constitutional guarantee of liberty under the Fourteenth Amendment and the right to privacy, devoid of excessive government regulation, established in Griswold v Connecticut in 1965. The court upheld the challengeand affirmed that women’s right to abortion is a part of personal privacy.

Is Roe v Wade applied in India?

While Roe v. Wade is not a precedent that Indian courts have to follow, judges have considered the principles laid down in this case while passing judgements.

Gobind v State of Madhya Pradesh was the first case in India where a judge mentioned Roe v. Wade, while discussing whether the right to privacy can be inferred from Articles 19(1)(a), (d) and 21 of the Constitution and whether these rights are absolute.

Since then, a series of cases elaborated on the constitutionality of the right to privacy. In the case of  Justice (Retd) K.S. Puttaswamy v Union of India in 2017, the judges referred to this case to establish the Right to Privacy as a facet of Right to Life under Article 21.

Can fundamental rights be abrogated or cancelled in India?

While Parliament of India can take away fundamental rights by enacting a law, it must not violate the basic features of the Constitution. This means that the core features of the Constitution, including the basic tenets enshrined in Part III cannot be altered.

What are Indian laws on abortion?

In India, the Medical Termination of Pregnancy Act 1971 (recently amended in 2021) regulates abortions in India. It permits abortion, with the approval of a doctor, until 20 weeks of pregnancy. However, in case of pregnancy owing to rape or incest, abortions may be allowed till 24 weeks of pregnancy, with the approval of two doctorrs. There is no timeframe in case of foetal disability, but it must be allowed by a medical board set up under the Act.

To learn more about abortion laws in India, you can read our explainer here.

Does everyone have equal reproductive rights in India?

The Constitution protects the reproductive rights of women in India under Article 21. In Suchita Srivastava & Anr v Chandigarh Administration, the court upheld the right to bodily autonomy. Here, the court respected the choice of a rape victim suffering from mental retardation not to abort her baby.

Courts have not yet addressed the ‘right to reproduction’ of the transgender community.