The right of women to exercise their reproductive choice is implicitly protected
as the fundamental right under the Indian constitution; however, even if the
rights are violated there are numerous judgment that supports women rights and
that Indian courts play a crucial role in preventing and addressing the ongoing
violation of these women rights. For every person life without liberty is
unimaginable. Women always possess particular rights which shouldn't be denied
at any cause . One such right is her right to exercise her reproductive choice.
In this paper, the author tends to throw the spotlight on women's reproductive
rights with respect to their personal liberty under article 21. With that, the
author also sums up reproductive rights as a human right and its relation to
international covenant in the light of providing justice to every woman.
Women's sexual and reproductive health is connected to numerous human rights
including the right to life and the right to be free from torture.
Sexual health is an aspect of the right to Health. Sexual Health refers to
physical, emotional, psychological and social well-being in relation to such
quality that includes control over fertility, protection from sexually
transmitted disease and other aspects that are also part of reproductive health.
It also includes other protection from sexual coercion, stigma, censorship and
violence, and the possibility of a pleasurable and safe sexual experiment.
Also, that often sexual relationship that leads to unwanted pregnancy which is
related to the physical dangers of pregnancy, imparts women's enjoyment of
health which is defined by WHO.
Personal Liberty under Article 21 of the Indian constitution:
Black laws dictionary defines personal liberty as " the right of freedom of a
person to behave as they would like. Though, following the conduct code of the
society in which a person resides is important"
The word personal liberty and article 21 has a wide meaning. The preamble of the
Indian constitution itself guarantees liberty to every citizen.
Personal liberty is one of the most important ingredients of Article 21.
Personal liberty means, the freedom of an individual to do as he pleases
limited, only by the authority of politically organised society to regulate his
action to secure the public health, safety or morals or of other recognised
The right of personal liberty is an important fundamental right as it is for
individual freedom. If the right to life is the basis of society, then the right
to life is the basis of human existence. Personal liberty does not merely denote
freedom from bodily restraint. Herein, Individual liberty is a vital necessity.
This individual liberty is so important that it plays a vital role in society
that is looking to move forward whether economically, spiritually, materially or
Personal liberty has the widest amplitude and adds various rights like The right
to Privacy, The right to locomotion, The right to travel abroad, The right of a
prisoner to a speedy trial and The right to have Reproductive Choice.
It is significant to throw light on, The right to personal Liberty also means
the right to procreative liberty. Justice Mathew, in a landmark judgement of Govind
V. State of Madhya Pradesh held that privacy is constitutionally protected
the right as a part of personal liberty under Article 21. In this judgement, it
was also added that the sanctity of the person of women and her the right not to
be sexually molested against her will and not to have sex with someone she does
not like to have with are the aspects of the right to personal liberty of women.
Women's reproductive choice is the right to liberty under indian constitution:
Under Article 21, of the Indian constitution the right to liberty women's
reproductive Choice falls under the right to personal liberty.
According to this article, it is solely the women's rights to get herself
protected and also she possess the sacrosanct right to have her bodily integrity
protected. When woman is forced to have an unwanted intrusion on her body
without her consent and face the consequences due to that intrusion it results
in a gross violation of women's fundamental right to liberty, enshrined under
Article 21 of the Indian constitution.
The right to personal liberty also includes women's reproductive choice, the
same was held in the case of Suchitra Srivastava and ors V. Chadi
"There is no doubt that a woman's right to make reproductive choices is also a
dimension of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that reproductive choices
can be exercised to procreate as well as to abstain from procreating. The
crucial consideration is that a woman's right to privacy, dignity and bodily
integrity should be respected. This means that there should be no restriction
whatsoever on the exercise of reproductive choices such as a woman's right to
refuse participation in sexual activity or alternatively the insistence on use
of contraceptive methods. Furthermore, women are also free to choose
birth-control methods such as undergoing sterilisation procedures. Taken to
their logical conclusion, reproductive rights include a woman's entitlement to
carry a pregnancy to its full term, to give birth and to subsequently raise
However, According to the medical termination of pregnancy Act, 1971 Section 3 emphasises
on the point that, only the registered medical practitioner can terminate the
pregnancies in with accordance to provisions in-laws
This point was overruled in various other circumstances. Such that, it cannot be
disputed that, any statutory limitations will impose restrictions to the
constitutional power of the court. But when there is an exceptional situation
only then constitutional power of the court can be exercised.
The Apex Court in the case of, State of West Bengal V. The committee for the
protection of Democratic The right, West Bengal & Ors held that, Restriction
on the Parliament by the Constitution and restriction on the Executive by the
Parliament under an enactment, do not amount to restriction on the power of the
Judiciary under Article 32 and 226 of the Constitution.
Women Reproductive Choice is completely her own decision. To have a child or
not; to abort or not is the women's interest. However, Abortion in any case as
such in rape, torture or marriage must be done only with the consent of the
women. Also, the Orissa HC bench comprising of Justice SK Mishra and Justice
Savithri Ratho held that the right to progeny and termination is a fundamental
right under Article 21.
Also, in Meera Santosh Pal V Union of India
, the SC held that women's
reproductive Choice is a dimension of personal liberty under article 21.
Women's reproductive rights are human rights:
Reproductive rights are established as a subset of human rights at the UN,1968
international conference on Human rights. Reproductive rights are enshrined in
the UN and India being a signatory to the UN, such that these reproductive
rights are guaranteed and protected. Reproductive rights are the human rights
that were first formulated in the international conference on human rights held
in Tehran in 1968 and it aims in promoting the Universal Declaration of Human
In the year 1994, the UN conference on population and development was an
important milestone for women's rights to her body. In this conference, about
179 countries pleaded that the countries would focus on people sexual and
reproductive health and rights for the next 20 years.
A special mention on the Spanish government has to be made as the Spanish
government adopted in new global development policy which offers particular
concern to women's the right to her own body and sexuality and to free abortion
from December, 2003 where it stands as the epitome for other countries.
Reproductive rights include:
- The right to legal and safe abortion
- The right to make the reproductive choice without coercion, violence and
- The right to control one's reproductive function
- The right to know about contraception, sexually transmitted diseases and
about sterilization and contraception
Legal Basis Of Human The Rights And Their Relevance To Reproductive Rights:
The right to life:
The right to life of every person is guaranteed under Article 3 of UDHR. The
same right is recapitulated again in Article 16 of ICCPR and Article 6 of UN
Convention on the right of a child. This right is a fundamental right and a
necessary right for the enjoyment of every other right. This reproductive right
falls under the ambit of the right to life, wherein some of the restrictive
abortion law leads to the violation of this fundamental rights and it leads to a
maximum risk of maternal mortality.
The right to non-discrimination and equality:
The right to non-discrimination and equality is important for the enjoyment of
other rights. The right to non-discrimination is important because rather than
creating a physical problem it brings mental illness to the person facing it.
However, the right to non-discrimination and equality is grounded in Article 2
of UNDR, Article 2 of ICCPR, Article 2 of UNCRC and in Article 2(2)
of International covenant in Economic, social and curation the rights, where
this Article 2(2) protect against discrimination on any ground such as sex,race,
caste, colour, and religion. Denying women access to abortion is major gender
Apart from this, Article 3 of the Convention of the rights of persons with
disability deals with the right against non-discrimination and equality in
Non-discrimination in the context of reproductive rights means that the rights
of all person has to be respected for Sexual orientation and identity. However,
according to many international documents, it is the obligation of the state to
Eliminate discrimination against women in every aspect. The most important state
must eliminate discrimination faced by women throughout their life cycle,
particularly during pregnancy, maternity, family planning and postnatal period.
However, this discrimination happens both formally and substantially. The state
can ensure this non-discrimination only when there are no discrimination in-laws
and state policies.
The right to education and information:
According to article 18 of ICCPR, which includes that, The right shall
include freedom to seek receive and import information and idea of all kinds.
Also, Under Article 17 of UDHR gives children the right to access information
and material that promote their mental and physical health.
Article 10(h) of CEDAW emphasises a point on educating children to ensure
health. This right to education with regard to reproductive rights is important
because this education will enable the person to take any decision regarding
their reproductive right. This education will also impart knowledge and take
decisions relating to their marriage, their ability to decide to have kids.
In a nutshell, the right to education and information will guarantee access to
reproductive rights and sex education.
The right to enjoy benefits of scientific progress:
Under Article 27 of UDHR and Article 15(1)(b) of ICESCR which aims in
guarantee the right to every person to share scientific advancement and their
benefits. However, this right has been denied to many women. Science and
technology are grown so high such that it's advancement plays an important role
in social and economic levels in the country.
Every person possesses the right to enjoy scientific benefits. With regard to
this, any person who wanted the scientific benefits has to be availed with it.
These access to scientific benefits will give access to new health care, new
diagnostics and therapy necessary. With this right, every scientific benefit
must be made known to the society as a whole.
The right to privacy and marriage and family life:
Under Article 16, UDHR And Article 23 of ICCPR guarantee the right of
men and women to marry and find a family. Under Article 12 of UDHR, Article
12 of ICCPR, and Article 16 of UNCRC and Article 22 CRPD affirms that no one
shall be subjected to 'arbitrary' or unlawful interference with his privacy,
family, home or correspondence or to unlawful attacks, dishonour or reputation.
The right of woman to choose her life partner is a fundamental right to fulfil
her right to life and dignity and to accomplish her reproductive right. In
addition to this equity between spouses, their privacy in families and privacy
of that particular women is important for the fulfilment of the reproductive
rights of women. Requirements of husband's consent for each and every action of
wife such as undergoing sterilization, abortion are a violation of wife's the
right to privacy. Also, torture made by families to involve in their marital
life is a violation of the right to Privacy.
In addition to this, women right to privacy when deciding to have an abortion
has priority over the men's judgments are expressed in international treaties
and various other constitutions. These are the rights by which individuals and a
group can protect their interests and attain the ethical standard of living.
However, basically, these human rights are always evolving.
In the case of Behram V. State of Bombay
, the SC held that fundamental right is
put into the constitution for the cause of public policy and in pursuance of
objects in the preamble. The fundamental right is for the benefit of an
individual and that fundamental right can never be waived. Hence, Women's
reproductive choice is an integral fundamental right that cannot be infringed.
The personal liberty of any woman is critical as it is most necessary and it
produces an extent of an inter-personal corporation, innovation and allows the
women to flourish.
- Protection of life and personal liberty No person shall be deprived of
his life or personal liberty except according to procedure established by
- Govind V. State of Madhya Pradesh AIR 1975SC 1378
- Sanjiv Sirohi, The right Of a Woman to exercise her reproductive choice
is a dimension of Personal Liberty under Article 21: Karnataka HC, THE DAILY
GUARDIAN (Dec 14,2021;7.09 am IST) https://thedailyguardian.com/right-of-a-woman-to-exercise-her-reproductive-choice-is-a-dimension-of-personal-liberty-under-article-21-karnataka-hc/
- State of West Bengal V. The committee for the protection of Democratic
The right, West Bengal & Ors, 2010 3 SCC 571
- Riya Rupini, , State of West Bengal V. The committee for the protection
of Democratic The right, West Bengal & Ors, OUR LEGAL WORLD, (May 12, 2020)
- Harsha Singh, Meera Santosh Pal V Union of India: Testing limitations of
abortion laws, ACADEMIKE (Sep 27,2021) https://www.lawctopus.com/academike/abortion-laws-in-india-mtp/
- Everyone has the right to life, liberty and security of person.
- Everyone shall have the right to recognition everywhere as a person
before the law.
- Every child has the right to life. Governments must take necessary steps
to ensure that children survive and grow up well.
- The convention applies to everyone whatever their race, religion,
abilities, whatever they think or say, and whatever type of family they come
- States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her
parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property,
disability, birth or other status.
- Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
- Article 15(1)(b) To enjoy the benefits of scientific progress and its
- No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such
interference or attacks.