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The Right Of A Woman To Exercise Her Reproductive Choice Is A Dimension Of Personal Liberty Under Article 21, Vis-A-Vis Its Human Right

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.

Reproductive Health:

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"[1]

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[2]. 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 social interest.

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 personally.

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[3] 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 children.[4]

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[5] 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.[6]

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[7], 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 Rights.

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 discrimination
  • 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[8] of UDHR. The same right is recapitulated again in Article 16 of ICCPR[9] and Article 6 of UN Convention on the right of a child[10]. 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[11], Article 2 of ICCPR[12], Article 2 of UNCRC[13] 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 discrimination.

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 general.

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[14], 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[15] and Article 15(1)(b) of ICESCR [16]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[17] And Article 23 of ICCPR[18] guarantee the right of men and women to marry and find a family. Under Article 12 of UDHR[19], Article 12 of ICCPR, and Article 16 of UNCRC and Article 22 CRPD[20] 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.

Conclusion:
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.

End-Notes:

  1. https://thelawdictionary.org/liberty/
  2. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
  3. Govind V. State of Madhya Pradesh AIR 1975SC 1378
  4. 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/
  5. State of West Bengal V. The committee for the protection of Democratic The right, West Bengal & Ors, 2010 3 SCC 571
  6. 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) https://www.ourlegalworld.com/state-of-west-bengal-vs-the-committee-for-protection-of-democratic-rights-west-bengal/
  7. 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/
  8. Everyone has the right to life, liberty and security of person.
  9. Everyone shall have the right to recognition everywhere as a person before the law.
  10. Every child has the right to life. Governments must take necessary steps to ensure that children survive and grow up well.
  11. https://www.un.org/en/about-us/universal-declaration-of-human-rights
  12. The convention applies to everyone whatever their race, religion, abilities, whatever they think or say, and whatever type of family they come from.
  13. 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.
  14. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  15. 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 benefits.
  16. Article 15(1)(b) To enjoy the benefits of scientific progress and its applications;
  17. https://www.un.org/en/about-us/universal-declaration-of-human-rights
  18. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  19. 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.
  20. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-22-respect-for-privacy.html

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