Luca Dettori

This paper explores the controversial issue of the assertion of reproductive rights in India, with a focus on the central role that the Indian Supreme Court has assumed in the assertion, development and safeguarding of these rights. Specifically, the shift in the legal parameter used by the Court will be highlighted: from an initial emphasis on the right to privacy to an argumentative priority centred on the dignity of women. The paper opens with an examination of the historical evolution of Indian legislation on the termination of pregnancy, without neglecting to specify the political, social and cultural context surrounding the succession of laws and pronouncements of the Supreme Court over time. Reviewing some of the Supreme Court's most emblematic judgments on reproductive rights, this paper argues that these judgments have been crucial in challenging restrictive provisions of the MTP Act, often through the use of comparison as a means of validating its arguments. In fact, the Court has gradually, also through cross-fertilisation, placed increasing emphasis on the dignity of women as a fundamental aspect in assessing the constitutionality of abortion laws. In order to guarantee this access to pregnancy termination in India, it is necessary to challenge entrenched socio-cultural conditions, including the societal stigma and discrimination faced by women, inadequate healthcare facilities and regional disparities in this area. The very recent X v. NCT Delhi judgment is only the latest example of this Court activism, which has allowed an unmarried woman to terminate her pregnancy within the twenty-four weeks stipulated in Section 3(2)b of the MTP Act, noting that failure to recognise this right would constitute a violation of the constitutional principle of equality. In doing so, the Supreme Court assumed the role of the demiurge of a more advanced and modern vision of reproductive rights and access to voluntary termination of pregnancy.