Over the years we have seen that the Indian courts have delivered various

judgements in regards to women’s reproductive rights as it affects the both

physical and mental health of a woman. This right is a part of Article 21 of the
Indian Constitution. It is “Inalienable Survival Rights”. In the case of Devika
Biswas vs. Union of India W.P(C), 81/2012 first time the court has observed
and recognized reproductive rights as the essential rights. As we all know that
the reproductive rights are the important rights of the human and the state is
under the obligation to protect this right. The women shall be free from all
sorts of discrimination and violence about their sexuality and reproduction.
Any kind of violation of reproductive rights harm harms women’s health as it
affects their capacity to become pregnant. Therefore, the protection of these
rights is in the interest of natural justice and equality of women.
India was one of the first nations which framed the rules and policies that
guaranteed access to abortion and contraception. India has the policy named
India’s National Population Policy which accessed all kinds of contraceptives
that includes voluntary female sterilization also. Abortion is also legal in India
when it is done within 20 weeks of gestation and also where it is necessary to
save the life of pregnant women, these abortion rights are guaranteed by the
statute named Medical Termination of Pregnancy Act, 1971.
As per Article 21 of the Indian Constitution, the right to privacy is being
guaranteed by the state to every person, therefore the women’s right to enjoy
her privacy and other rights are also being protected by this article. It’s the
women’s privacy that she can undergo abortions or can have a child. Every
spouse has the same rights and liberties in regards to family planning. The
reproductive rights if are violated and harms the women due to their capacity
to become pregnant and also giving legal protection to them are challenging to
provide gender justice. However, the Indian Constitution has recognized many
of such rights as fundamental rights. Article 14, 15, and 21 includes the right
to equality, non-discrimination and right to life which includes the right to
health, dignity, freedom from torture and ill-treatment, and privacy.
India is a signatory to many international conventions like the Convention on
the elimination of all forms of discrimination against women (CEDAW), the
International Covenant on Civil and Political Rights (ICCPR); the International
Covenant on Economic, Social and Cultural Rights (ICESCR); and the
Convention on the Rights of the Child (CRC), all of which recognize
reproductive rights. Therefore, the India is under obligation to adopt such
conventions to protect all forms of human rights.
The reproductive rights of women have by recognized by the many countries
and the United Nations were amongst the first to consider such rights as
international human rights. There are several treaties and bodies which
recognized this human rights and made certain guidelines for their
implementation.
The International Covenant on Civil and Political Rights (ICCPR) gives the
Human Rights Committee a mandate to publish the comments and guidelines
and directions for the nations to adopts such rights. To date there have been
more than 40 such guidelines were published by the Committee upon
reproductive rights as a human right, some such comments are explained as
under:
1. Protection of the family, the right to marriage and equality of the
spouses, 1990: -
According to this marriage shall be not be entered into without the free
and full consent of the intending spouses. The Covenant does not
establish a specific marriageable age either for men or for women, but
that age should be such as to enable each of the intending spouses to
give his or her free and full personal consent. Secondly right to found a
family implies, in principle, the possibility to procreate and live together.
Whenever the States parties adopt any kind of family planning policies,
they should be compatible with the provisions of the Covenant and
should, in particular, not be discriminatory or compulsory. 1Here we can
see that the committee in the year 1990 has observed that women’s
rights are to be considered by the states when they are implementing any
policies in relation to family planning. Here the aim is to bring more
equality for women in the society so that the state shall not make any
arbitrary policies that may hamper the rights of women.

2. The equality of rights between men and women, 2000: -

Here the committee observed that every state parties shall give the
necessary information on any measures taken by any State to help
women to prevent unwanted pregnancies, and also it shall be the duty of
the state to ensure that not women shall undergo any life-threatening
abortions. The State parties shall make aware of the measures to protect
women from practices that violate their right to life, such as female
infanticide, the burning of widows and dowry killings. 2

3. The right to the highest attainable standard of health, 2000: -

The right to health is not only restricted to live a healthy life, it includes
freedom and life with dignity. The right to health must include the as a
right to the enjoyment of a variety of facilities, goods, services and

1
Article 16 Universal Declaration of Human Rights.
2
CCCPR General Comment No. 28. March 29, 2000
conditions necessary for the realization of the highest attainable level of
health.

As we can see that there are