‘I Exist, Therefore I Think’: Rethinking Bodily Autonomy Beyond Statutory Clock

In a deeply consequential challenge before the Supreme Court, a case arose from a plea by the mother of a minor rape survivor seeking the court’s discretion to terminate a pregnancy that had advanced to 27 weeks. The Medical Termination of Pregnancy Act, 2021, Section 3 (2) operates with a clinical finality, posing a statutory bar at termination of pregnancy post the gestational period after 24 weeks, even in cases involving vulnerable categories.

Faced with statutory literalism over bodily autonomy, Justice B.V Nagarathna and Justice Ujjal Bhuyan foregrounded the minor’s autonomy. The bench shifted the focus from the gestational limits to constitutional guarantees and lasting social consequences, and allowed termination of pregnancy of the minor survivor.

In a week, a curative petition was filed at the All India Institute of Medical Sciences' instance, seeking to revisit the precedent and effectively pleading with the court to retreat into statutory conservatism. The plea was dismissed by a bench led by Chief Justice of India Surya Kant and Justice Joymalya Bagchi. In a candid observation, the apex court asked the Union to amend the law, especially for rape survivors.

It is unassailable to say that in several instances, the courts have affirmed the simple proposition that bodily autonomy cannot be subordinate to the rigid timelines of the statute. Although judicial clarity on the issue is concretised, it sits alongside stubborn legislative silence, and the burden quietly falls to those least equipped to bear it.

The medical practitioners remain bound by statutory prohibitions and penal consequences, which dull clinical judgment once the statutory limitation is triggered. Consequently, the right that has been emphatically recognised in constitutional jurisprudence remains procedurally elusive.

For a survivor, the right to bodily autonomy ceases to be an exercise of choice and is reduced to a question of access to litigation. It is particularly striking when the relief sought is inherently time-sensitive, as each passing day narrows the window for safe medical intervention.

Adding to the plight, a petition for the termination of pregnancy after the statutory limitation requires approaching a constitutional court. For survivors from the marginalised sections of society or rural areas, the distance is not merely physical but systemic, involving costs, delay and a legal labyrinth that is difficult to navigate.

The process is particularly fraught since it involves a human cost. To seek relief, the rape survivor has to relive the trauma in an adversarial setting. Followed by a contingency upon judicial discretion or intensifying the sense of vulnerability. For instance, in a petition before the Gujarat High Court in 2023, a plea by a minor rape survivor seeking termination at 29 weeks. Justice Samir J Dave invoked the historical normalisation of early marriage and childbirth, referring to the Manusmriti text:

Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmruti once for this.

In the same case, Justice Dave inquired whether there was a ‘chance of compromise’ between the rape survivor and the accused, for it may “save three lives”. These observations, even if made in a passing remark, ostensibly put the precarious terrain on which the rape survivor is left to assert their rights. Even if constitutionally ordained and judicially interpreted, the interpretive subjectivity risks diluting the law's clarity.

Rape is not a crime of lust or desire; it is a crime of assertion of power, over the body and over an individual’s autonomy. From a materialist perspective, such violence is embedded within broader hierarchies of inequality, where control over the body mirrors control over agency itself. When law, through rigid timelines or procedural barriers, compels a survivor to carry forward the consequences of that violence. The survivor is left with a Hobson’s choice: either seek termination through unauthorised channels, significantly contributing to maternal mortality, or endure the physical, psychological, and social burden of carrying a pregnancy born of violence to term.

French philosopher René Descartes located certainty in the act of thinking, proposing that existence is secured through doubt and reason: Dubito, ergo cogito, ergo sum, translating to ‘I doubt, therefore I think, therefore I am.’ Centuries later, French thinker and philosopher Jean Paul Sartre rejected the formulation and argued that existence precedes essence, that we are thrust into the world as living, embodied, and sentient beings, and only thereafter acquire the capacity to think, choose, and create meaning.

It is Sartre’s insight that can potentially guide constitutional reasoning in law, particularly in cases involving the termination of pregnancy arising from rape, where the law is confronted not with abstraction but with a living person bearing trauma within her own body. Consciousness here is not detached but rooted in sentient existence, in the capacity to feel, suffer, and endure. Thought does not precede this condition; it is that one exists, therefore it thinks. One exists first as a sentient, breathing, rights-bearing being, and it is from this embodied existence that autonomy, choice, and the capacity to make meaning shall be recognised and protected.

The writer is an Advocate in Delhi High Court. The views are personal.