Right To Abortion As A Fundamental Right: Constitutional Analysis

Abstract

The emerging jurisprudence on reproductive rights of a woman acknowledges the right to bodily integrity of a woman and includes her reproductive choice as a dimension of her right personal liberty. The right of a woman to have access to safe and legal abortion has been recognized under the right to privacy. In India the first step towards the reformation and liberalization of laws relating to abortion started in the year 1964 with the recommendation of the Shanti Lal Shah Committee which led to the passing of the “Medical Termination of Pregnancy Act, 1971”. Along with legislative framework there has been high judicial activism in the area pertaining to right to abortion. In K.S. Puttaswamy v Union of India, the court recognized the constitutional right of the women to make reproductive choice as a part of the personal liberty under Article 21 of the Constitution of India. The role played by the  judiciary over the years have recognized that all women irrespective of marital status have equal rights to access abortion which is a significant step towards the woman’s rights in India. Despite laying a robust jurisprudence on reproductive rights of woman, there is no fundamental shift in power from the medical practitioner to the women seeking abortion. The core constitutional principle highlights the decisional autonomy of women concerning her reproductive choice, yet the legislative framework is still silent on this issue. Even though India’s abortion law and policy are progressive, still effective steps needed to be taken to adopt the rights based approach and to make safe and legal abortion accessible to all. The present paper shall highlight on the abortion law in India and its shortcomings, constitutional recognition to right to abortion in India and the judicial approach towards the right to reproductive choice of a woman.