February 8, 2023

Right to bodily integrity and reproductive choice

The right to bodily integrity and the reproductive choice of any woman has been the subject of discussion in quite a few decisions of supreme Court. The discussion has been wide-ranging and several facets of these concepts have been considered from time to time. The right to bodily integrity was initially recognized in the context of privacy in State of Maharashtra v. Madhukar Narayan Mardikar[1] wherein it was observed that no one has any right to violate the person of anyone else, including of an unchaste woman. It was said:

“The High Court observes that since Banubi is an unchaste woman it would be extremely unsafe to allow the fortune and career of a government official to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person. She was honest enough to admit the dark side of her life. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.”

In Suchita Srivastava v. Chandigarh Administration[2] the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It includes the right to abstain from procreating. In paragraph 22 of the Report it was held:

“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. However, in the case of pregnant women there is also a compelling State interest in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”

In issues of criminal law, investigations and recording of statements, the bodily integrity of a witness has been accepted by this Court in Selvi v. State of Karnataka[3] wherein it was held in paragraph 103 of the Report:

“The concerns about the voluntariness of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined.”

Ritesh Sinha v. State of Uttar Pradesh[4] was a case relating to the collection of a voice sample during the course of investigation by the police. Relying of Selvi it was held that:

“In a country governed by the rule of law, police actions which are likely to affect the bodily integrity of a person or likely to affect his personal dignity must have legal sanction.”

Finally, in Devika Biswas v. Union of India[5] it was observed that Over time, there has been recognition of the need to respect and protect the reproductive rights and reproductive health of a person. This is all the more so in the case of a girl child who has little or no say in reproduction after an early marriage.

 Rape or penetrative sexual assault 65. Whether sexual intercourse that a husband has with his wife who is between 15 and 18 years of age is described as rape (not an offence under Exception 2 to Section 375 of the IPC) or aggravated penetrative sexual assault (an offence under Section 5(n) of the POCSO Act and punishable under Section 6 of the POCSO Act) the fact is that it is rape as conventionally understood, though Parliament in its wisdom has chosen to not recognize it as rape for the purposes of the IPC. That it is a heinous crime which also violates the bodily integrity of a girl child, causes trauma and sometimes destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation.


[1] (1991) 1 SCC 57

[2] (2009) 9 SCC 1

[3] (2010) 7 SCC 263

[4] (2013) 2 SCC 357

[5] (2016) 10 SCC 726