The Privacy–Equality Synthesis: Framing Reproductive Rights in India

Abstract

1. Introduction

How should reproductive rights be framed constitutionally? The question assumes particular significance in today’s legal and political climate of fraught global contestation around these rights. Whether they are to be protected at all, the extent of their protection and the role of courts in protecting them are being heatedly deliberated.¹ The question is of heightened value in constitutional contexts that do not expressly protect reproductive rights, requiring that they be housed within existing constitutional rights. The right that is most commonly used for this purpose is the constitutional right to privacy (or liberty, autonomy or self-determination, variously phrased and used interchangeably).² A less common alternative—but one growing in popularity—is the right to equality (or non-discrimination, also used interchangeably).³

It is typical for a case to be made for reproductive rights to be located within privacy or equality, depending on the conceptions of the two rights at play.⁴ Some make a more nuanced claim, arguing for both rights to be invoked and treated ‘additively’ in framing reproductive rights.⁵ Reproductive rights, then, involve issues of both privacy and equality. Here, I present India as offering a third formulation, one that emphasises the ‘synthesis’ between rights beyond their mere addition. The synthesis creates a space for dynamic rights interaction, in turn promising outcomes that the rights struggle to arrive at in isolation or addition. I therefore frame constitutional reproductive rights as engaging privacy in synthesis with equality.

I begin by tracing arguments for reproductive rights through the frames of privacy and equality as understood within the Indian Constitution. My aim is to show that the contribution of each right in framing reproductive rights is distinctive. Simply put, reproductive rights when seen as engaging the right to privacy look quite different from when seen as components of equality. By implication, choosing between privacy and equality as frames for these rights—an either–or approach—is deficient. At the minimum, an additive approach bringing together both privacy and equality is necessary (section 2).

However, an additive approach siloes rights, combining them but keeping intact the boundaries between them. Rights addition falls short of capturing the intertwined reality of how rights violations are actually experienced in practice. At this stage, Indian constitutional law offers a novel provocation. It proposes that rights be read not just additively, but in synthesis with one another. To appreciate what is to be gained from this shift, it is important to understand what a synthesis of rights means in the first place. For this, I locate the synthesis within current constitutional doctrine in India. I find that the synthesis rejects the ‘anaemic and siloed approach to human rights that invariably fails to capture and remedy the complex, intersectional violations’ characterising the ‘lived experience of subordination’ for many.⁶ Instead, it dissolves boundaries between rights to foster dynamic interaction between them. However, the synthesis lies dormant within Indian constitutional law (section 3). My task then is to unearth the synthesis and breathe life into the bare bones offered by existing doctrine.

I conduct this task in the context of reproductive rights in India. Drawing on examples of abortion and maternal mortality—issues that have dominated judicial decision making on these rights—I show that the synthesis between privacy and equality plays a ‘magnifying role’ at the stage of assessing the rights violation (section 4), a ‘catalysing role’ at the stage of crafting the state’s positive duties (section 5) and a ‘backstopping role’ at the stage of conducting the limitations analysis (section 6). Overall, the synthesis significantly alters the constitutional imagination of reproductive rights in India.

My arguments disrupt several entrenched patterns within constitutional adjudication, both in India and globally. At the outset, whenever Indian courts are faced with a right that does not find express mention within the Constitution, they read it into article 21, or the right to life and personal liberty.⁷ Courts do not pause to consider whether other fundamental rights are more suitable homes for the new right, or whether a combination of rights is necessary to understand the new right in its fullest. Article 21 is thus the sole repository for all unenumerated constitutional rights in India. This expansive (and almost mindless) interpretation of article 21 has been critiqued for diluting the provision’s protection to mere rhetoric.⁸ Reproductive rights are no exception to this trend, being unanimously (and consistently) housed within article 21.⁹ The simple act, then, of meditating on what the constitutional framing for these rights should be resists this 70-year-old practice within Indian constitutional law. At the same time, bringing equality law to reproductive rights in India transcends existing constitutional framings on these rights: ‘[Indian] courts have primarily addressed [reproductive] rights as a matter of life and personal liberty but have yet to robustly address [it] as an issue of equality and non-discrimination’.¹⁰

Reading rights in synthesis also disturbs the tendency to either pick between privacy and equality or simply introduce both rights as frames, trends that dominate the comparative constitutional imagination of reproductive rights. Going beyond both the rights-in-isolation and rights-in-addition approaches, the synthesis calls for dynamic rights interaction. It thus develops constitutional accounts of reproductive rights specifically, while also pointing to a method of rights analysis more generally.

My arguments also introduce India as a player on the international stage for reproductive rights, a space dominated by a ‘few influential jurisdictions’ from the Global North (like the United States and Germany).¹¹ In developing the synthesis—India’s contribution to constitutional reproductive rights—I dispute the ‘unwritten but firmly entrenched hierarchy’ within the politics of constitutional knowledge building,¹² premised on the assumption that the Global North is the ‘wellspring of universal learning’, while the Global South embodies ‘parochial wisdom … antiquarian traditions … exotic ways and means’,¹³ or, at best, a ‘weak reproduction’ of Global North principles.¹⁴ My claims present India as offering a previously unseen form of constitutional innovation in the reproductive rights space, holding valuable insights for other regional and international contexts and opening the constitutional dialogue on these rights to non-mainstream players.

2. Privacy and Equality: The Role Distinction

A. Privacy

The right to privacy has a strong intuitive appeal in framing reproductive rights constitutionally. Decision making on reproduction is central to an individual’s identity,¹⁵ going to the ‘heart of personhood’ and ‘deeply affect[ing]’ one’s sense of self.¹⁶ Being the ‘author of our own actions, especially when they pertain to something as personal as reproduction, is profoundly valuable to us’.¹⁷ Pregnancy is also an immense physical undertaking, involving ‘all the body systems, displacing body parts, depleting the body of its necessary elements and changing its chemical balance’.¹⁸ Being refused reproductive rights, then, adversely affects the life and health of those capable of pregnancy. With the body being a ‘constitutive part’ of who the individual is,¹⁹ it also causes a ‘radical diminution’ of their personhood.²⁰

The Indian Constitution closely follows this script in guaranteeing constitutional reproductive rights. Article 21’s right to privacy protects for the individual a ‘zone of choice and self-determination’ and recognises ‘the ability of each individual to make choices and to take decisions governing matters intimate and personal’.²¹ This includes the right to make ‘intimate decisions … [about] one’s sexual or procreative nature’,²² extending to the right to make decisions about ‘whether to bear a child or abort [one’s] pregnancy’.²³ Article 21 also emphasises the ‘sacrosanct right’ to bodily integrity²⁴ and guarantees ‘sovereignty’ over one’s body.²⁵ And it preserves an individual’s health, both physical and mental, which is impaired when a pregnant woman dies during childbirth,²⁶ is denied quality and timely obstetric care²⁷ and is refused an abortion or compelled to undergo one.²⁸

However, the right to privacy has been subject to decades of feminist critique. Privacy, it is argued, typically protects private spaces—like families or homes—from state intervention. These spaces may be sources of oppression for marginalised groups, with privacy serving as an ‘injury got up as a gift’ for members of these groups.²⁹ This feminist concern is especially pronounced in the reproductive context. The private sphere (like the family or marriage), shielded from state intervention, is where women experience pervasive forms of coercion—to become or not become mothers;³⁰ exploitation—the unilateral responsibility of childcare;³¹ and devaluation—of their caring labour.³² The right to privacy also traditionally envisages only a negative duty of non-intervention on the state.³³ Consider the example of abortion. Privacy, at its strongest, would commonly stop at arguing that the state place no legal restrictions on abortion. However, this ignores that barriers to accessing abortion exist outside the law (or other forms of state intervention). This could include stigma around abortion, lack of awareness of its legality or its unaffordability for members of certain groups. Guaranteeing privacy in this context thus requires a ‘positive vision’ of the state,³⁴ coupling reproductive choice with ‘enabling rights’ to ensure that it is not ‘illusory’ but ‘meaningful and complete’.³⁵ Without state actions of this nature, the sole beneficiaries of the privacy right are privileged groups of women, who do not need state assistance, financial or otherwise.

Yet, in an encouraging sign, India’s article 21 offers a conception of privacy that moves far past these accounts. The Indian Supreme Court has rejected privacy as a ‘spatial’ construct due to its role as a ‘veneer for patriarchal domination and abuse of women’.³⁶ Instead, it understands privacy as decisional autonomy ‘to exercise intimate personal choices and control over the vital aspects of their body and life’.³⁷ This shift is significant because it preserves that which is valuable about privacy, especially for women: ‘The rhetorical power of a private sphere of decisional autonomy where women are free to make decisions about their destiny, taking into account their needs and priorities, cannot be underestimated in affirming women’s personhood and citizenship.’³⁸

At the same time, article 21’s right to privacy does not restrict the state’s duties to non-intervention alone. Rather, it requires the state to ‘remove obstacles for an autonomous shaping of individual identities’.³⁹ The Indian Supreme Court has, in fact, acknowledged that it is ‘meaningless to speak of’ negative duties ‘in the absence of’ positive duties, mandating that the state ‘undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion)’.⁴⁰

B. Equality

Recognising the common deficiencies of privacy—applicable less in India than comparatively—the right to equality is typically offered as an alternative constitutional frame for reproductive rights.⁴¹ Denying forms of healthcare that only women need—for instance, abortion or obstetric care—constitutes sex and intersectional discrimination.⁴² Laws restricting women’s reproductive decision making ‘reflect constitutionally suspect assumptions about women … traditional sex-role stereotypes about care-giving or decision-making around motherhood’.⁴³ Moreover, the impact of these laws is to impair women’s abilities to be ‘equally autonomous … in relation to a man’⁴⁴ and refuse them the ‘dignity of equal community membership’,⁴⁵ perpetuating women’s structural subordination:⁴⁶ when ‘women are forced into maternity, they are reproductively exploited’.⁴⁷ Crucially, these laws disproportionately affect the most vulnerable: women who are members of other marginalised groups.⁴⁸ At its core, the equality argument for reproductive rights thus recognises that restrictions on these rights are a product of women’s inequality; their impact is to entrench such inequality by perpetuating disadvantage; and the form and extent of such disadvantage varies depending on the other groups to which women belong.

Yet equality, like privacy, has its limitations, particularly in its requirement of a comparator.⁴⁹ In claiming that women ought to be treated equally, the question of ‘equal to whom’ becomes pressing. Pregnancy being a unique physical condition, finding an appropriate comparator is difficult. Women’s discrimination claims on the ground of pregnancy thus tend to get rejected, with pregnant women being seen as different, disqualifying their claim to equality.⁵⁰ Alternatively, an artificial comparator—like a sick person—is constructed, and women are extended similar treatment.⁵¹ Pregnancy is not a sickness! And offering pregnant persons the same benefits as sick people is futile, as their needs are drastically different.

However, it is important to recall that the comparator is not a mandatory requirement of an equality analysis. Rather, it depends on the conception of equality at play. Formal equality, which treats likes alike, is premised on proving likeness before granting an equality claim.⁵² It thus lends itself easily to a comparator-based test.⁵³ Substantive equality, in contrast, aims to ‘eradicate historical disadvantage’⁵⁴ by eliminating ‘individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society’.⁵⁵ As a result, substantive equality dismisses likeness as the basis of the equality claim, in turn doing away with the search for a comparator.⁵⁶ India’s constitutional conception of equality is substantive. Article 15’s non-discrimination guarantee aims to redress disadvantage experienced by groups of ‘citizens who [have] suffered historical disadvantage, whether it be of a political, social, or economic nature’,⁵⁷ by eliminating ‘age-long disabilities and sufferings’,⁵⁸ abolishing ’social inequity, the social stigma and the social disabilities in our society’⁵⁹ and achieving ’real equality’ amongst groups.⁶⁰ Under this substantive conception, the comparator critique of the equality right dissipates.

An equality framing for reproductive rights has been slow on the uptake in India. Yet, courts have gradually begun to recognise that reproduction is intimately embedded in group dynamics. In X v NCT, the Supreme Court affirmed that reproduction is not just ‘biological’—as ‘physical bodies reproduce’—but also ‘political’, with the decision to reproduce being influenced by broader social structures: ‘A woman’s role and status in family, and society generally, is often tied to childbearing and ensuring the continuation of successive generations.’⁶¹ Courts have also begun to notice that violations of reproductive rights entrench the disadvantage of some groups over others. For instance, in Devika Biswas, the Supreme Court condemned state policies that compel women from marginalised groups to undergo sterilisation as they ‘mirror’ prevalent ‘systemic discrimination’ due to their impact on the ‘reproductive freedoms of the most vulnerable groups of society’ whose socio-economic contexts already inhibit their capacity to make choices, rendering them the ‘easiest targets of coercion’.⁶²

Let us now pause to tease out the distinctions between articles 21 and 15 as framing devices for reproductive rights. Article 21 guarantees rights because ‘the personality of the individual is found to be inviolable’.⁶³ As Constituent Assembly Debates on the provision make clear, the ‘sacredness of the personality of the individual’⁶⁴ requires that ‘the individual … occupy the centre of the stage and the development of the individual personality will be the main aim of our social good’. That is why ‘every individual Indian has an “inalienable right to Life, Liberty and pursuit of Happiness”’.⁶⁵ Article 21, in its rights protection, thus foregrounds individual identity, attaching constitutional significance to—and protecting—who the individual is as a person, including their preferences, capabilities, constraints and aspirations. This framing holds true for reproductive rights as well. As we saw above, article 21 protects these rights because they are central to an individual’s identity and intimately impact the individual’s body. Their denial disregards the individual’s subjectivity, and in turn diminishes their life and health, both physical and mental.

In contrast, article 15 generally guarantees rights to redress ‘subordination of a disadvantaged group of individuals’.⁶⁶ Article 15’s rights protection thus foregrounds group identity, drawing attention to who the individual is by virtue of being a member of social groups. While article 15 retains an individual as the unit of its protection,⁶⁷ it recognises that the individual has been discriminated against because of her group membership (for example, as a woman, or as a Dalit woman). It is the ‘individual’s group membership that is the terrain upon which social disabilities operate’,⁶⁸ and the elimination of these disabilities is the provision’s constitutional mandate. Translated into the language of reproductive rights, article 15 protects these rights because they have been withheld from members of certain historically disadvantaged groups on the ground of their group identity, with their denial perpetuating group-based disadvantage.

It should be noted that article 21 does not necessarily ignore group identity. It locates the individual within her social context:

The individual is not a hermit. The lives of individuals are as much a social phenomenon⁶⁹ … [the] constitutional understanding of … [life and] liberty [places] an individual in the context of a social order.⁷⁰

Such social order could include the groups of which an individual is part. Yet, group identity is decentred in that it does not drive rights analysis under article 21. Even when an individual is fully located within her social context, article 21 neither grants rights taking group identity into account nor is it concerned with redressing group-based disadvantage. Group identity instead remains subsumed within an individual’s relevant contextual background, simply a factor to be considered when assessing a violation of the individual’s life and personal liberty. Article 15, in contrast, recentres group identity, placing it at the forefront of its constitutional assessment on rights, including reproductive rights. It explicitly locates individuals as members of groups and draws attention to forms of group-based disadvantage, redressing which is the provision’s constitutional function. In this varying emphasis—the foregrounding of individual identity and decentring of group identity on the one hand and the recentring of group identity on the other—lies the provisions’ distinctive roles as framing tools for reproductive rights. What one provision does, the other does not do. One without the other is thus incomplete, deficient and lacking.

C. Rights’ Addition

Recognising the unique contributions of each right, some authors argue that we ‘cannot choose between privacy and equality justifications’ for reproductive rights.⁷¹ They advocate including equality as an ‘additive’ to privacy:⁷² ‘the mechanics of integrating [equality] claims into the existing [privacy] framework … shows how both lines of analysis are necessary and appropriate to a complete understanding of [reproductive rights]’.⁷³ This is certainly progress when compared to the either–or approach, which picks between privacy and equality, in the process losing out on what the other brings. However, rights’ addition stops here, with both rights being invoked. The rights remain discrete, independent categories. Each right is hermetically sealed from the other. And the whole of the rights violation is a sum of its individual parts.

However, this is far from how rights violations are actually experienced in practice: ‘real people do not experience the needs or deprivations in their lives according to [neat] categories of rights’.⁷⁴ Instead, the lived experience of rights violations is often ‘inextricably intertwined’,⁷⁵ and

quantitatively and qualitatively different from the mere addition of the ‘single’ violations … the closely intertwined violations of human rights impact the person concerned in ways that are quantitatively and qualitatively different than the sum of each violation taken separately.⁷⁶

Through a process of cross-fertilization the sum of the various component norms [thus] forms a holistic entity … which [is] greater than the mere sum of its constituent parts.⁷⁷

This mandates ‘a certain overlapping and intertextuality’ amongst rights, calling for a method of rights analysis that ‘dissolves the boundaries between the distinct categories’.⁷⁸ So rethinking rights adjudication presents ‘great promise for the human rights movement’, drawing us closer to the ‘lived experience of rights’.⁷⁹ In its absence, ‘the most egregious systemic violations of human rights’ which lie at the ‘interstices between categories of rights’ go ‘unchallenged’.⁸⁰ Yet, ‘the majority of existing human rights architectures, both at national and international levels, still [tend] to compartmentalise human rights violations into discrete categories’.⁸¹

Here, Indian constitutional law presents a significant advance. It proposes the ‘synthesis’, a method of rights analysis that goes beyond rights addition to foster dynamic rights interaction. Below, I locate the origins of the synthesis within Indian constitutional law and theorise it in the context of reproductive rights.

3. Rights’ Synthesis: The Method

I start with the earliest instantiation of a constitutional claim involving multiple fundamental rights. In 1950, in AK Gopalan,⁸² the Indian Supreme Court declared that constitutional rights are mutually exclusive and operate in silos, holding against their complementarily in any fashion. In arriving at this conclusion, the Court’s starting point was the observation that each right performs a specific role within the constitutional scheme: ‘articles in Part III deal with different and separate rights … The contents and subject matters of articles 19 and 21 are not the same and they proceed to deal with the rights covered by their respective words from totally different angles’,⁸³ speaking of ‘different aspects’ of civil liberty.⁸⁴

This observation, by itself, is not cause for concern. In fact, my argument so far—that articles 21 and 15, being two different rights, perform two distinct roles in framing reproductive rights—speaks to this view. However, from this understanding of role distinction, the Court moved to denying that a given subject matter could involve two (or more) rights simultaneously. Instead, the Court required that only one right be identified as engaged and its limitations framework alone be applied. The Court also rejected the complementarity of rights, holding that articles 19 and 21 (in the context of the case) ‘do not operate in a coterminous field’:⁸⁵ ‘It cannot … be said that the provisions of article 19 … and article 21 are complementary to each.’⁸⁶ Transposed into the scheme of my argument, AK Gopalan would hold that reproductive rights violations involve either article 21 or article 15. Having identified the relevant right at play, the appropriate limitations analysis would follow. Both rights cannot be involved together, and they most certainty do not interact in any manner.

This view was soundly rejected by the Indian Supreme Court in RC Cooper.⁸⁷ In reversing Gopalan, the Court in Cooper emphasised that it is not the object of state action but its impact on rights that is relevant in determining the rights involved.⁸⁸ That is, if state action impacts two or more fundamental rights, they would all be involved and the limitations test under each would have to be satisfied.⁸⁹

In Maneka Gandhi,⁹⁰ the Supreme Court agreed with Cooper, while also going beyond it. In endorsing Cooper’s holding that several rights could be simultaneously involved in a given constitutional challenge, the Gandhi Court honed in on the ‘interplay’ of rights.⁹¹ Justice Beg declared that the Constitution must be read as an ‘integral whole with possible overlapping of the subject matter’. Within such overlapping, he identified, the rights do not represent ‘entirely separate streams which do not mingle’. Rather, being part of the ‘integrated scheme’ of the Constitution, their ‘waters must mix’: ‘Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.’⁹² Echoing Justice Beg, and in language central to my argument, Justice Iyer reiterated: ‘cardinal rights in an organic constitution … have a synthesis’.⁹³

Thus, from Gandhi came the exhortation to move past looking at constitutional rights as discrete categories simplistically added to one another. Instead, the call was to dissolve boundaries between the rights and create a space for the rights to interact through mixing and mingling. The result is a ‘dynamic’ form of rights interaction where:⁹⁴

The norms and contents of different rights inform, reinforce, nurture and grow together in response to human rights claims emerging from [the] human experience⁹⁵ … reground[ing] human rights in the integrity, complexity and multidimensional struggles that characterize the lives of rights-holders.⁹⁶

This dynamism, in turn, allows the synthesis to speak intimately to the reality of rights violation, experienced not through neat rights categories, but through their messy interplay.

Despite this appeal from the Court in Gandhi, reading rights in synthesis faded to the background, with the additive approach gaining prominence in subsequent rights adjudication. Consider both NALSA⁹⁷ and Navtej Johar,⁹⁸ landmark decisions from the Indian Supreme Court on transgender and same-sex rights. In assessing whether state non-recognition of transgender persons as the third gender and the criminalisation of same-sex sexual relations violated constitutional rights, the Court examined a constellation of relevant rights: equality and non-discrimination (articles 14 and 15); freedom of speech and expression (article 19(1)(a); and privacy, dignity, autonomy and health (article 21). Each right was studied independently and sequentially to identify violations on account of state action and inaction. In this, the Court followed the approach set out in Cooper and Gandhi, finding a place within the Constitution for a subject matter spanning several rights. However, the Court did not read the rights in synthesis. Nor did it examine the mingling of the rights it invoked, or its implications for the constitutional protection offered to the petitioners. Instead, the boundaries between the rights were retained and their interaction stymied. The Court thus missed the clarion call issued by Gandhi.

Below, I take seriously—and to its full conclusion—the Court’s suggestion in Gandhi of a rights synthesis. For this, I apply the privacy–equality synthesis to reproductive rights. Rights analysis is typically structured across three stages. The first stage assesses the nature of rights violation caused by state action or inaction. The second stage constructs the state’s negative and positive duties to redress the said violation. And the third stage conducts the limitations analysis, requiring the state to justify its rights violative action or inaction. I examine the operation of the privacy–equality synthesis at all three stages. Across each stage, I consider two issues central to reproductive rights: abortion and maternal mortality. For each stage, I choose an example that best illustrates its claims. And at each stage, I show how the synthesis between articles 21 and 15—in its role as a magnifier, a catalyst and a backstop—dissolves boundaries between the rights, impels their interaction and insists that it be dynamic. I conclude that the outcome of the privacy–equality synthesis could not have been achieved by the rights in isolation or addition. The whole after rights synthesis is thus qualitatively and quantitatively different from the sum of its individual parts.

4. Rights Violation: The Magnifying Role

Neelam was continuously abused by her husband and parents-in-law. She pleaded with her husband to use a condom during sex. Yet, he always refused. She could not use oral contraception because it reacted badly with her epilepsy medication. Unable to continue in the marriage, Neelam decided to apply for a divorce. She hoped to study further and become financially independent. Unfortunately, she realised that she was pregnant. Fearing that a child would confine her to her marital home, she opted for an abortion at 23 weeks. The Bombay High Court denied her request, reasoning that it did not fall within the scope of permitted abortions under Indian abortion law:

the petitioner is seeking termination of pregnancy based on … her matrimonial discord with her husband, her intention to initiate divorce proceedings and to pursue her career and improve her education qualification … [the] same [is] not at all recognized to form basis for accepting the prayer of the petitioner to terminate the pregnancy … [the] petitioner is seeking permission to terminate pregnancy merely for … the fact … that she is carrying pregnancy out of her marital life and she is major and educated … the prayer put forth by the petitioner does not warrant any indulgence at the hands of this Court.⁹⁹

Neelam’s article 21 right was violated by the law’s denial of her abortion decision. Being compelled to continue an unwanted pregnancy damaged Neelam’s sense of self: she was reduced to an ‘inferior kind of human being’, a non-active citizen, ‘a nobody’, a person whose self-definition did not count.¹⁰⁰ Denied sovereignty over her body, she was forced to undergo the grave physical implications of pregnancy, consequences which ‘cannot be understated’:¹⁰¹ a 50% increase in blood volume, 35% increase in stroke volume of the heart, 50–60% increase in renal function, 20% decrease in lung volume, 15% decrease in respiratory rate and the generation of a whole new organ (the placenta), to name but a few.¹⁰² This risked her physical¹⁰³ and mental health.¹⁰⁴

Neelam’s article 15 right was independently violated by the law’s refusal. Neelam’s pregnancy was a product of the disadvantage associated with her group identity. Like many other women, she did not have the power to ensure that her spouse used contraception during sex.¹⁰⁵ In severely restricting access to abortion after 20 weeks of gestation, Indian abortion law is also based on enduring stereotypes about women as mothers, another manifestation of their group-based disadvantage.¹⁰⁶ Moreover, the law’s rejection of Neelam’s request entrenched this disadvantage. She was forced to remain in an abusive home. Women in violent relationships are more likely to have an abortion as well as to experience violence after (and possibly because of) the abortion.¹⁰⁷ Neelam was also required to abandon her desire to study and become employed, trivialised as ‘self-indulgence’¹⁰⁸ by the Court through its remark that an abortion could not be granted ‘merely’ because she wanted to ‘pursue her career’. While many parents may voluntarily make a choice to deprioritise their career, the decision was imposed on Neelam, playing into enduring gendered constructions of women’s roles.¹⁰⁹

Having considered articles 21 and 15 separately, an additive approach to constitutional rights would stop here. The rights themselves, while cumulatively included, would remain sealed from one another. The whole of the rights violation would thus be the sum of its individual parts.

In contrast, the synthesis dissolves boundaries between the rights, enabling rights interaction. Article 15 acts on article 21, underscoring that it is not just any denial of reproductive decision making that occurs when Neelam is refused an abortion. Rather, it is part of a historic pattern of discrimination against members of a certain group—women—who have consistently been disadvantaged within the reproductive sphere. Some groups of women—seen as ‘reproductive saviours’ of the state, ethnic group, religion and/or normative family¹¹⁰—are forced to be mothers,¹¹¹ compelled to bear male children,¹¹² required to unilaterally care for them,¹¹³ excluded from the public sphere due to their childcare responsibilities¹¹⁴ or asked to work the ‘double day’¹¹⁵ while their labour within the home is devalued.¹¹⁶ Other groups of women, whose reproductive capacities are less valued because of their race, class or disability, are seen as ‘reproductive sinners’ or ‘threats’¹¹⁷ and discouraged from becoming mothers.¹¹⁸ They are offered incentives for sterilisation,¹¹⁹ or sometimes sterilised against their will,¹²⁰ and denied state support for childcare¹²¹ in the absence of which parenting becomes effectively impossible.

Women being refused abortions is, then, yet another instantiation of this pattern. Seen against this context of extreme group-based inequality, it is clear that there is something especially wrongful about these instances of denial of decisional autonomy. They are not just any violations of privacy, but forms of invasion that raise fundamental questions of equality: they occur because of entrenched group-based disadvantage and have the effect of perpetuating that disadvantage. This awareness heightens the harm from the denial of privacy. Within the synthesis, article 15 magnifies article 21’s privacy claim.

The interaction is not unidirectional: article 21 simultaneously acts upon article 15 to unveil the whole extent of discrimination at play when Neelam is refused an abortion. The law did not discriminate against Neelam in an arbitrary area of her life; rather, it discriminated against her within the reproductive sphere, a zone of life that is typically central to one’s ‘personal identity’, capable of ‘radically alter[ing] one’s conception of oneself’:¹²²

In becoming parents, we do not merely gain loved ones; we expand our selves … our preferences change. The way you live your life will change. What and who you care about will change. The typical attachments you form to your child alter the very way you are in the world, indeed alter who you are.¹²³

In cherishing one’s ability to make decisions on ‘matters intimate to human life’ lying at the ‘core of human personality’,¹²⁴ article 21 recognises how momentous reproductive decisions are, and in turn enhances our appreciation of how damaging discrimination within the reproductive sphere can be. In other words, article 21 magnifies article 15’s discrimination claim.

The interaction between articles 21 and 15 is dynamic. It reproduces the ‘integrity and complexity’¹²⁵ of how Neelam’s rights were violated: her group identity (as a woman) shaped how her reproductive decisions were treated, and the denial of these significant decisions heightened the disadvantage she already experienced on account of being a woman. The magnified rights violation was qualitatively distinct from reading rights in isolation or addition. The synthesis not only brought together both dimensions of the rights violation, but also did more than mathematically combining them. Within the synthesis, the rights violation constituted a particular class of discrimination and a particular kind of invasion of privacy. The magnified rights violation was also quantitatively more weighty; each violation was enhanced by the other to assume greater proportions.

5. Positive Duties: The Catalysing Role

India has the highest maternal mortality rate in the world,¹²⁶ with 88–98% of India’s maternal deaths being preventable.¹²⁷ Article 21’s right to life places a positive duty on the state to ‘ensure that every woman survives pregnancy and child birth’.¹²⁸ It requires the state to provide timely and quality obstetric care,¹²⁹ guarantee a ‘minimum standard of treatment and care’,¹³⁰ construct healthcare facilities ‘conducive [to the] maintenance of health’,¹³¹ sustain the facilities in an ‘appropriate manner’,¹³² and refer high-risk pregnancies to specialist care.¹³³

Unlike article 21, whose mandate for positive state intervention is well established, positive duties under article 15 remain nascent. While a substantive equality reading of article 15 ideally demands both negative and positive duties,¹³⁴ courts have so far been reticent in requiring positive duties of the state under article 15.¹³⁵ There is a recent shift in this trend, with some cases holding: ‘Equality not only implies preventing discrimination … but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights.’¹³⁶Courts have also recognised their duty under article 15 to not just strike down discriminatory practices but also to ‘structure adequate reliefs and remedies that facilitate social re-distribution by providing for positive entitlements that aim to negate the scope of future harm’.¹³⁷ However, this trend remains a subversive undercurrent, requiring much more judicial construction and elaboration. Therefore, for now, positive state duties to prevent maternal mortality continue to find their source within article 21.

Under article 21, the scope of these duties is limited. Consider Laxmi Mandal,¹³⁸ a Delhi High Court case from 2009, unprecedented worldwide for its recognition that preventable maternal mortality violates human rights.¹³⁹ Shanti Devi, the petitioner, died giving birth to her sixth child. The maternal death audit revealed that the ‘direct cause’ for Shanti’s death was a haemorrhage. However, the audit identified that there were ‘many indirect and contributing factors to her death, which broadly include, her dismal socio-economic status which denied access to needed resources and services, and her poor health condition which is a culmination of anemia, tuberculosis and repeated, unsafe pregnancies’. Shanti belonged to the State of Bihar, where women’s social status is low, evident in the ‘unfavourable ratio of women to men, low female literacy, higher incidence of death due to childbirth, higher percentage of anaemic married women, etc’. Shanti migrated with her husband to Haryana. As they did not possess a ration card in Haryana, they could not access subsidised food, education and healthcare, causing ‘poor living conditions, low access to food, information, resources, services which reduced her capacity to cope up with her physiological processes’. Shanti had ‘severe anaemia’, which placed an ‘additional burden’ on her while pregnant. She was malnourished, and sat ‘sick and thin and depressed all the time’, especially during her sixth pregnancy.¹⁴⁰

In the seventh month of her fifth pregnancy, Shanti fell down a staircase and fractured multiple ribs, causing a miscarriage. However, she did not go to a doctor for two weeks because she could not afford it. She also hesitated to go to a hospital, fearing that she would not receive appropriate care. Her fears were well founded. At the first hospital, despite discovering the miscarriage, Shanti was not offered treatment but was instead referred to another facility. The second hospital did not have a bed in the intensive care unit for the removal of the foetus and thus referred her to a third institution. At the third hospital, she was asked to either produce a ‘below poverty line’ card—which she did not possess—or pay Rs 50,000, which she could not afford. She was then taken back to the second hospital, from where she was referred to a fourth hospital, where the foetus was finally removed from her body. Despite recognising that a sixth pregnancy would risk Shanti’s life, the fourth hospital did not refer her or her husband to counselling for contraceptive use.¹¹⁹⁹ Shanti became pregnant a sixth time and died during childbirth. The maternal death audit noted the non-use of contraception as the ‘most critical’ factor in her death.¹⁴¹

The Delhi High Court declared that the state violated Shanti’s ‘inalienable survival rights’ under article 21.¹⁴² Shanti’s ‘maternal mortality was clearly avoidable’: she died because she could not ‘effectively access’ the healthcare system and did not receive ‘minimum health care’.¹⁴³ To prevent other women like Shanti from dying, the Court required the state to improve the referral system, ensure portability of schemes across states to accommodate inter-state migration, provide ‘safe and prompt’ transport to healthcare facilities, institute a common point for claiming benefits across schemes, collect information on the working of these schemes and put in place a monitoring system for their implementation.¹⁴⁴

While a critical first step, this account of the state’s positive duties was, at best, partial. It paid little attention to the role of group identity, and the attendant group-based disadvantage, in causing the death of women during childbirth. Shanti’s ill health before approaching the healthcare system, the delay in her accessing the system and her experiences within the system (including the poor quality of healthcare she received) were all products of her group-based disadvantage. Shanti’s status as a poor, Scheduled Caste woman made her especially vulnerable to ill health. Gender norms resulted in early marriage, low literacy, multiple pregnancies and anaemia. Belonging to a socio-economically disadvantaged class meant that she relied on the state for basic health, nutrition and education, which the state failed to provide, as evident from her illiteracy, struggle to obtain a ration card and ill health. Her well-being was not treated as a priority within the public healthcare system. She was made to shuttle from institution to institution, as she feared would happen, asked for documents she did not possess and money she could not afford. She was also given no information about contraception, information she relied on the state for. Shanti thus died ‘because she was a pregnant woman of lower caste and economic status who depended on government programs for prenatal and postnatal care’.¹⁴⁵

Shanti’s is not a novel experience: ‘the social power that individual women possess is influenced by their economic position, gender norms, and social class and this in turn affects their access to and use of health’.¹⁴⁶ It is no surprise that women from poorer households have ‘significantly higher maternal mortality’¹⁴⁷ and receive ‘virtually no maternal care’.¹⁴⁸ Young women,¹⁴⁹ women living in rural areas¹⁵⁰ and Muslim women¹⁵¹ are similarly disadvantaged. Studies also document a ‘disproportionately high number’ of maternal deaths (50–80%) among socially backward castes.¹⁵² Women from these groups are mistreated in healthcare facilities, ridiculed as ‘backward’, with ‘unfettered fertility’,¹⁵³ and subjected to pressure to sterilise.¹⁵⁴ Tribal women, who are perceived as ‘recalcitrant and savage-like’, are abused by healthcare staff for screaming too loudly during childbirth or asking too many questions.¹⁵⁵ Even when in labour, they are forced to wait for long periods, given beds away from high-caste women or asked to give birth on the floor.¹⁵⁶

Acknowledging the role of group identity is thus key to understanding the incidence of—and the causes behind—maternal mortality: ‘Because oppression is based on one’s membership in a social group, understanding how social power and oppression work requires an adequate understanding of the significance of group membership.’¹⁵⁷ Article 21, however, decentres group identity, which is merely a contextual factor in its constitutional analysis. It therefore fails to ‘address the primary causal factors behind preventable maternal deaths in India’.¹⁵⁸ Even in Sandesh Bansal, where petitions explicitly pointed out that ‘cultural and social reasons … come in [the] way of women for effective and adequate access to health care’, the article 21 duties focused only on remedying healthcare system deficiencies, requiring improvements to infrastructure and the appointment of skilled personnel.¹⁵⁹

Article 15, in contrast, recentres group identity in its constitutional assessment of maternal mortality. It recognises that the high rate of maternal mortality, much of which is preventable, is a manifestation of the assumption that the ‘lives of mothers are expendable and women do not matter’.¹⁶⁰ The provision sees maternal mortality as a ‘tragic symptom of a larger social injustice of discrimination against women’.¹⁶¹ The educational status of women influences how they utilise obstetric care,¹⁶² with literate women being more vocal about challenging gender norms and articulating their needs.¹⁶³ Yet, only 55% of women in India are literate, compared to 78% of men.¹⁶⁴ Violence against women also affects their health status, with women experiencing violence being less likely to have institutional deliveries¹⁶⁵ and obtain antenatal care because of lack of mobility, partners’ controlling behaviour and fear of future violence.¹⁶⁶ About 60% of pregnant women in India are malnourished and anaemic¹⁶⁷ due to gender norms which deprioritise their nutrition within the family.¹⁶⁸ Yet, detection and treatment of anaemia is not a priority within antenatal care in India.¹⁶⁹ Moreover, women’s lack of access to contraception leads to rapid repeat pregnancies amongst women, hampering their health:¹⁷⁰ ‘women become old bearing children. They can’t keep their strength. Their spirit drains away.’¹⁷¹

Article 15 also targets intersectional forms of discrimination due to ‘interlocking of different relationships of power at play’,¹⁷² acknowledging that:

Women, particularly from low economic status, socially backward and marginalized castes like SC/ST, uneducated, Muslim, rural, childbearing at a young age, and with two or more children, who had hardly any exposure to mass media or maternal health messages, [are] more disadvantaged in terms of maternal health service use or more prone to maternal deaths in India.¹⁷³

In recentring of group identity, article 15 is thus better able to channel state action towards redressing forms of group-based disadvantage to prevent maternal mortality. However, as indicated above, the provision by itself is unable to require the state to take such action, with positive duties remaining nascent under it. Here, article 21 steps in to provide a constitutional wedge for the imposition of positive duties. Read in synthesis, the boundaries between the provisions dissolve, opening them up to one another. The provisions interact, this time in a catalytic form, to activate each other’s latent potential. Article 21 catalyses article 15’s jurisprudentially nascent ability to impose positive duties on the state, offering its robust constitutional scaffolding as a crutch for its immediate activation and development. Article 15, in turn, catalyses article 21’s nascent inclination to account for group membership within an individual’s broader ‘social order’, precipitating the process and redirecting its attention towards redressing group-based disadvantage.

The catalysed positive duties ‘reflect the specificities of gender’¹⁷⁴ to remedy manifestations of women’s group-based disadvantage—poor literacy and nutrition; domestic violence; rapid, repeat pregnancies—resulting in poor health outcomes. They also take into account the intersection of gender and other group identities, requiring the state to cater to especially vulnerable groups of women.¹⁷⁵ This could, for instance, include duties on the state to provide subsidised (or free) public healthcare, remove (or dilute) documentary requirements to access such care and ensure respectful care by medical professionals. The catalytic process is dynamic, maintaining a direct connection to Shanti’s lived experience of rights violation. It reflects the varied, interacting strands of rights infringement; her right to life, it recognises, was violated because of her group membership. And it requires the State to prevent maternal mortality by going beyond improving healthcare facilities to redressing forms of group-based disadvantage.The catalysed duties are therefore distinct from those that would accrue had the provisions been read in isolation or addition. Under either option, the duties would remain restricted to those under article 21 alone as article 15 is independently unable to demand positive duties of the state. Simply adding the two provisions together would thus have a limited effect in shaping the content of these duties. In contrast, dynamic rights interaction within the synthesis generates positive state duties that are ‘engendered’¹⁷⁶ and infused with intersectional content.

6. Limitations Analysis: The Backstopping Role

Article 15’s standard of review for testing discriminatory state action is unclear. Traditionally, the reasonableness test applied, offering a minimal, light-touch review which most forms of state action easily satisfied.¹⁷⁷ A later case invoked the heightened proportionality standard. However, the case did not eventually apply it, falling back on reasonableness to reach a decision.¹⁷⁸ In 2009, the Indian Supreme Court finally applied proportionality under article 15.¹⁷⁹ Despite this, subsequent Supreme Court decisions on the provision make no mention of this standard.¹⁸⁰ A Supreme Court case from 2022 partially applied proportionality by referencing only its necessity prong.¹⁸¹ This compounded the confusion on the relevant standard,¹⁸² which was only made worse by a 2023 dissent suggesting that violations of article 15 cannot be justified at all.¹⁸³ Article 15 thus presents no clear standard of review. The responses offered by courts range from the absence of justifications once article 15 is violated—making the provision an absolute right—to not only accepting justifications but also requiring the state to satisfy only a light-touch reasonableness standard. Considering this doctrinal ambiguity, it is difficult to conclude that reasonableness—a standard that has held the fray in equality adjudication in India from the late 1940s—has been conclusively displaced under article 15. In essence, the draw of reasonableness remains strong.

In contrast, it is by now uncontroversial that the four-stage proportionality test¹⁸⁴ is the doctrinal standard of review under article 21.¹⁸⁵ Within the synthesis, article 21’s insistence on proportionality serves as a backstop, a form of safeguard or reinforcement preventing article 15 from collapsing back into reasonableness at the level of doctrine. Unlike reasonableness, proportionality requires that a rights-restricting measure pursue a legitimate aim, ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’.¹⁸⁶ The measure must be a suitable means for achieving the aim, implying a rational connection between the measure and the aim. The measure must be necessary, in that there is a no less rights-intrusive measure which realises the aim in a ‘real and substantial manner’.¹⁸⁷ And, it must strike a proportionate balance between the ‘importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right’.¹⁸⁸ The burden of proving compliance with these standards rests on the state,¹⁸⁹ in line with the ‘culture of justification’¹⁹⁰ holding the state to account in justifying violations of fundamental rights.¹⁹¹ The extent of burden borne by the state is inversely proportional to the scope of latitude accorded to the state by courts, such that when the burden is high, the latitude is low, and vice versa.¹⁹²

The two most common justifications deployed to limit the abortion right are protecting women’s health and preserving the interests of the foetus. To illustrate the operation of the privacy–equality synthesis, I choose the latter, as it is arguably more controversial, presenting a harder case to contend with. While Indian law does not treat the foetus as an entity with the right to life,¹⁹³ it recognises the state’s compelling interest in protecting the ‘prospective child’ or the ‘potentiality of human life’, which justifies placing ‘reasonable restrictions’ on the reproductive rights of the woman.¹⁹⁴ These restrictions include allowing abortion only on the satisfaction of certain conditions and within specified time limits.¹⁹⁵ As the gestation period progresses, the conditions become more stringent and permissible abortions become more rare. To satisfy the proportionality test, the state has to prove that its interest in protecting the foetus as a form of potential life is a legitimate aim, with restrictive abortion laws being suitable, necessary and proportionate means to achieve this aim.

Typically, proportionality under article 21 affords the state a high degree of latitude in determining legislative aims, recognising the state’s institutional expertise and democratic legitimacy to decide complex policy prescriptions, especially aims of legislation.¹⁹⁶ This often serves to dilute the bite of article 21’s proportionality test at the level of operation, lowering the burden on the state. However, within the synthesis, article 15 places an outer boundary on the scope of the state’s latitude. This does not mean the state is offered no leeway. But the state is allowed deference in determining legislative aims only if the aims themselves do not corrode the basis of the non-discrimination guarantee. As an example, consider Anuj Garg,¹⁹⁷ which assesses the constitutionality of a law prohibiting the employment of women in industries serving alcohol. The Supreme Court declared the very aim of this law—the paternalistic protectionism of women—illegitimate because its impact was to perpetuate the ‘oppression of women’,¹⁹⁸ a state of affairs fundamentally inconsonant with article 15’s mandate to eradicate historical disadvantage of marginalised groups.¹⁹⁹ Put simply, the disparity between the aim of the legislation and the aim of article 15 allowed the Supreme Court to cut back on the deference typically granted to the state. Article 15 thus worked as a backstop on state latitude within the operation of article 21’s proportionality, raising the burden on the state to justify its rights violative action.

Arguably, the protection of foetal interests falls prey to a similar constitutional defect. Its most likely effect is to impose the costs of foetal protection on women:

These costs are tangible. They can’t be measured solely in terms of money, although that is certainly at stake. Women also incur costs to their freedom, physical and mental security, identity, and privacy when they are denied jobs because they are fertile, when they are subjected to court ordered medical operations against their will, and when they are given additional civil and criminal penalties for using drugs or alcohol during pregnancy that are never imposed on women who are not pregnant or on men.²⁰⁰

Essentially, ‘Separate fetal status of any sort … risks further entrenchment of women’s inequality’,²⁰¹ activating article 15’s backstopping function. While article 21 alone might have waved through the state’s aim of protecting foetal interests, article 15 raises concerns around the aim’s very legitimacy, which now becomes the state’s responsibility to dispute and disprove. Note, it is not my claim that preserving foetal interests is necessarily an illegitimate aim. Rather, more modestly, I only seek to show that article 15 could, at the very least, provoke enquiries about an aim that is otherwise treated as uncontroversial, heightening the state’s burden to justify its choice.

A similar backstopping role is played by article 15 within the suitability and necessity assessment. Restricting abortion is neither suitable nor necessary to achieve the aim of protecting foetal interests. Restrictive abortion laws rarely succeed in reducing abortions; they simply push abortion seekers outside the healthcare system and towards unsafe abortion.²⁰² There also exist alternative measure to reduce the abortion rate. Non-use of contraception, absence of state and familial support for childcare and violence against women drive abortions in India.²⁰³ Against this context, ensuring access to temporary contraception, providing support for childcare and eliminating violence against women work just as well—or, in fact, better—to reduce the overall rate of abortion, in turn protecting foetuses (though, of course, that is not their primary goal):

there is a wealth of evidence that suggests that a concern for protecting fetal life can be more effectively pursued through policies that attack the incidence of unwanted pregnancy (for example, through improving the quality of sex education and contraceptive provision, and making motherhood a more realistic possibility for women struggling to balance childcare alongside other commitments).²⁰⁴

Despite restrictive abortion laws being neither suitable nor necessary to protect foetal interests, the state resorting to them suggests that the underlying rationale is not just the ‘protection of the constitutional right to life, but something less articulated and more difficult to grasp … conceptions on gender relations and the place of women in society’.²⁰⁵ This is especially obvious when the state looks to promote the welfare of the unborn only when it can ‘use women’s bodies and lives to realise the potential of unborn life—and not when the community as a whole would have to bear the costs of its moral preferences’.²⁰⁶

Stereotypes entrenching ‘socially ascribed roles of gender’—like the ones above—are unconstitutional under article 15.²⁰⁷ They are ‘specious’, ‘illusory’ and ‘without foundation’, denying women the opportunity to overcome their ‘histories of discrimination’.²⁰⁸ An alternate state response might be to claim that women should bear the responsibility of protecting foetuses not due to their gendered roles as mothers, but due to their bodies: ‘the fact that women alone may gestate life [appears to] provide a sufficient and unimpeachable reason for regulating their conduct’.²⁰⁹ While this might pass muster under a formal conception of equality—which treats women’s bodies as rendering them different and outside the scope of equality—a substantive equality reading prohibits the use of women’s biology to perpetuate their disadvantage.²¹⁰ Under this conception of article 15, that women’s bodies dictate that they bear this unique responsibility towards foetuses is no longer a constitutionally acceptable state response for limiting their rights. The burden, then, rests on the state to prove that legally restricting abortion is suitable and necessary to protect foetuses without relying on stereotypes about women’s roles or particularities about their bodies. Once again, article 15’s backstopping role is at play, preventing the state from relying on a common category of responses typically used to limit the abortion right. This role is especially important because, in practice, the necessity prong of article 21’s proportionality test is rarely applied with any rigour,²¹¹ converting the standard into a ‘veiled’ Wednesbury reasonableness test.²¹² Article 15 backstops this dilution from occurring.

At the fourth stage of proportionality, the state has to prove that the burden to women from restricting abortion access is proportionate to the benefits the state seeks to achieve. In conducting this assessment, it is common for law makers to disregard harms to women. Consider cases of abortion sought on the ground that there exists a ‘substantial risk’ that the foetus, if born, would be afflicted by a ‘serious physical or mental abnormality’.²¹³ Indian courts’ only criterion of assessment in these cases is whether the foetus is capable of surviving outside the womb. If the foetus has ‘grim chances of survival and [a] limited life span’,²¹⁴ abortions are typically allowed. If, in contrast, the prospective child has some future, abortions are usually denied,²¹⁵ even though it would be ‘traumatic for [the mother]’.²¹⁶ This trauma is simply ignored. As one High Court admitted in 2018: ‘Doctors, while expressing their opinion [on termination], do not consider the trauma and the agony, which the [woman] undergoes.’²¹⁷ Yet, this Court too refused abortion to the petitioner.

Beyond outright disregard, some courts minimise costs to women: ‘unwanted pregnancy is seen by courts … as a “mere” nine-month episode, with no lasting impact’.²¹⁸ Yet others acknowledge the costs borne:

I am conscious of the fact that to carry a child in her womb by a woman as a result of conception through an act of rape is not only extremely traumatic for her but humiliating, frightening and psychologically devastating and as a human being, more particularly in the Indian society she becomes an object of scorn and ostracization.²¹⁹

Even so, they require the pregnant woman—who was kidnapped and gang raped—to ‘bravely’ continue with the pregnancy, reminding her that post-abortion, her grief might only ‘double’ as she had ‘just ended the life of [her] child’.²²⁰ Women who refuse to bear the costs are publicly shamed, with their refusal termed ‘reproductive materialism’.²²¹

Disregarding and diminishing the costs to women within proportionality’s ‘balancing’ exercise is typically motivated by the gendered stereotype that motherhood is women’s natural and normal condition, rendering state actors

oblivious to the life-consuming consequences of forcing women to perform its work—just as a latent assumption that motherhood is women’s ‘deserved’ condition causes indifference to the burdens the legislation will inflict. [Lawmakers] may not decide that it is reasonable to save unborn life by compelling pregnancy ‘but for’ the archaic or stereotypic assumptions about women [they] hold.²²²

If stereotypes typically shape the balancing of benefits against costs, the burden rests on the state to demonstrate that costs to women from restricting abortion are proportionate to benefits to foetuses without falling back on gender roles to mask the costs or minimise them. The state’s latitude under article 21’s proportionality is once again curbed by its interaction with article 15. Thus, while the latter itself does not bring a heightened standard of review, its overall effect is to make stricter the operation of article 21’s proportionality, reinforcing it where it tends to be diluted and backstopping it from regressing to reasonableness.

At the limitations stage, the synthesis therefore dissolves the boundaries between article 21 and article 15 to activate their roles as mutual backstops. Article 21’s doctrinally robust proportionality test backstops article 15’s slide to reasonableness, affixing proportionality as the standard of review for reproductive rights violations. In return, article 15’s bar on justifications eroding the core of the non-discrimination guarantee—aims perpetuating women’s oppression; stereotypes entrenching gender roles; and particularities about women’s bodies—backstops the dilution of article 21’s proportionality, strengthening the limitations analysis in operation. This rights interaction is dynamic. It keenly grounds the limitations assessment in women’s ‘multi-dimensional struggles’ as rights holders.²²³ It pulls attention to the fact that women are so easily cast as mothers, that their bodies are used to justify this role, that the state conveniently denies them reproductive decision making on ground of this role, that the resulting trauma they experience is ignored or minimised because of this role and that constitutional law legitmises these denials by requiring the state to satisfy a weaker form review, either at the level of doctrine or at the level of operation. Reading articles 21 and 15 in synthesis helps to raise the applicable doctrinal standard of review and to ensure that the standard is not diluted in operation by the state falling back on unconstitutional assumptions about women and their bodies. This outcome cannot be arrived at by the two provisions in isolation or addition. In both scenarios—either the choice between article 21’s dilute proportionality or article 15’s reasonableness; or combining article 21’s dilute proportionality and article 15’s reasonableness—the standard of review would be weaker, the protection less robust and the impact on pregnant women more devastating.

7. Conclusion

It is, by now, obvious that choosing between privacy and equality as frames for reproductive rights is reductive. Each right embodies a distinct role, introducing dimensions that the other fails to bring. An either–or approach does not appreciate this and can be safely rejected. An additive approach captures the role distinction. However, in siloing rights, it falls short of speaking to the full reality of rights violations. The synthesis, in contrast, breaks down boundaries between neat and discrete rights categories, bringing the rights holder back to the heart of the rights analysis. It foregrounds the individual contributions of articles 21 and 15 while simultaneously honing in on their site of interaction, providing a space for them to dynamically act upon one another. The resulting intermingling magnifies the harm from the violation of each right, catalyses the state’s positive duties and backstops the state from resorting to common justifications for denying rights protection. The synthesis thus significantly alters the constitutional imagination of reproductive rights in India.

At the same time, the relevance of the synthesis extends far beyond India. The privacy–equality tussle is part of the constitutional framing on reproductive rights globally. Recent scholarship on these rights in the United States,²²⁴ Latin America,²²⁵ South Africa,²²⁶ Canada,²²⁷ Spain,²²⁸ Australia²²⁹ and international human rights law²³⁰ examines the contributions of privacy and equality in shaping reproductive rights. While the US Supreme Court recently rejected equality arguments for abortion rights,²³¹ the Spanish Constitutional Court considered only privacy arguments²³² and the apex courts of Colombia,²³³ South Korea²³⁴ and Mexico,²³⁵ along with international human rights bodies like the Inter-American Court of Human Rights,²³⁶ harnessed equality and privacy claims to protect reproductive rights to varying degrees. However, unanimously missing from across this scholarship and these decisions is an interaction between privacy and equality. At best, the rights were simply combined. In bypassing the reductive privacy–equality binary and the limited privacy–equality addition, the synthesis heralds a new, exciting, internationally relevant paradigm on reproductive rights.

The importance of the synthesis also transcends the immediate context of these rights, presenting a general method of rights analysis of utility when the human rights claim involves more than one right. The synthesis applies to constitutional adjudication on other unenumerated rights in India, which are most often just swiftly read into article 21.²³⁷ Pausing this trend, the synthesis asks courts to meditate on which constitutional right(s) would be the most appropriate—which, no doubt, could include article 21—and if multiple rights are identified, provides a mechanism for their dynamic interaction. As a method, the synthesis also travels beyond India’s geographical boundaries. Any constitutional context engaged in rights analyses involving more than one right—including identifying and creatively utilising existing rights to support a claim for an unenumerated right, whatever the right may be—can draw inspiration from India’s synthesis. The synthesis also speaks to international human rights law where rights’ interrelatedness, interdependence and indivisibility are already part of the established norm.²³⁸ In embodying a fourth category—rights’ interaction—the synthesis advances existing ‘mutually supporting relationships’ between rights.²³⁹ In discovering, theorising and applying the synthesis, I therefore bring into being an insightful paradigm for constitutional reproductive rights globally and rights analyses generally.

Footnotes