INTRODUCTION TO BODILY AUTONOMY
The right to make choices about your own body, life, and future without force or violence is termed bodily autonomy. Essentially, it is the capacity for decision-making. It entails that one is free to use their bodies otherwise they choose to fit in without being concerned about what other people would think of them for doing so. My body belongs to me and is free in this sense. It has to do with both power and agency. Both choice and dignity. The fundamental principle of gender equality is bodily autonomy, which is also a basic human right.
The issue of the violation of bodily autonomy by the state is a complex and controversial one, with many different aspects to consider. Bodily autonomy is the right of individuals to make decisions about their bodies, free from interference or coercion by the state or other individuals. When the state violates an individual’s bodily autonomy, it can have serious consequences for their health, well-being, and sense of agency.
AS A FUNDAMENTAL HUMAN RIGHT
Bodily autonomy refers to the principle that every person has the right to control their own body and make decisions about their health and medical treatment without interference from others, including the government therefore it is termed a fundamental right.
The right to bodily autonomy is based on the principle of individual autonomy, which holds that each person has the right to make their own choices and decisions about their life, including their health and medical treatment. This principle is enshrined in many international human rights documents, including the Universal Declaration of Human Rights, which states that “Everyone has the right to life, liberty and security of person”
Bodily autonomy is also recognized as a fundamental aspect of reproductive rights, including the right to access safe and legal abortion services. Hence it is considered as a fundamental human right.
VIOLATION BY STATE
The state has been known to violate the right of bodily autonomy through various means, such as forced medical treatment, due to patriarchal laws or societal norms, or other forms of medical coercion. In such cases, individuals’ autonomy is not respected, and their bodily integrity is compromised. It is therefore crucial to recognize and defend the right to bodily autonomy as a cornerstone of human rights and to hold states accountable for any violations of this fundamental principle. But there are many cases in which bodily autonomy was at stake due to the patriarchal nature of the state. For instance, in the case of Bhanwari Devi, her employers sexually attacked her while she was working at the farm, according to the complaint. When her bodily autonomy was violated, she went to the police to report the accused, but they were hesitant to do so because she is from a lower caste and the accused men are from an upper caste. Here, we can see how her right to bodily autonomy and her choice of work have been infringed. After the case’s judicial proceedings, the guilty were cleared, and Bhanwari Devi was never given justice. However, it is because of her that India now has the “Vishaka Guidelines” for the protection of women in the workplace. Not only is women’s choice of profession but also their sexual orientation frowned upon in society. Society is not ready to accept “masturbation by women.” In the movie “Veere di Wedding,” Swara Bhaskar is seen masturbating in one of the scenes for which she was trolled by the media and has been targeted with several hate tweets. She was even referred to as a “prostitute.” Through this movie, Swara tried to break the stereotype. If a male actor enacts masturbation on screen, then it is okay and acceptable, but suddenly Indian culture is in danger when a female does it. Even in the 21st century, which is known as the “modern age,” still in this modern era, one does not have rights over one’s own body and what to do with it. For instance, the victim of rape must establish that they were the target of assault to seek Justice. Contrarily, rape lawsuits are only brought by women, not trans persons, although trans individuals are the ones who in reality are more likely than women to be the victims of sexual assaults. When they go to Police officers to complain they are often denied the opportunity to do so or are met with hostility since society does not regard them equally because they are trans. No legislation was ever passed by the state to safeguard them from sexual assault. Even the state is not ready to deal with such cases. The state and society do not believe that their right to bodily autonomy has been violated, perhaps bodily autonomy for women is still a distant reality. According to the most recent government report on crimes in India for 2021, on average, 86 rapes take place daily. However, many cases are not reported due to fear of society and the state. Even the state is not prepared to acknowledge that rape can occur after marriage, which we refer to as “marital rape.” Marital rape is permitted in India. When a couple marries, they get ownership of the other partner’s body and have complete control over it. Even a husband is capable of forcing his wife into having sex without her consent. Almost one in three women have experienced marital rape. All forms of domestic abuse, including compelled sexual activity, are accepted by society and made legal by the state due to societal norms. India’s constitution has features from numerous other nations. The parliamentary system of governance from the UK has also appropriated fundamental rights from the US. Marital rape is a crime in this nation but is not in India. In India following laws deal with rape; “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape,” declares Section 375 of the IPC, which deals with rape. The IPC’s Section 376, which outlines the penalties for rape, stipulates that the perpetrator must serve time in prison and pay a fee “unless the woman raped is his wife.” According to Section 122 of the Indian Evidence Act, marital rape evidence is not admissible in court unless there is also a charge of violence or physical or mental abuse. A victim of marital rape is only entitled to civil remedies under the Domestic Violence Act of 2005. One of the main subjects while discussing physical autonomy is “abortion.
The definition of “abortion” is “termination of pregnancy.” To end a pregnancy requires medical intervention. The “Medical Termination of Pregnancy Act” was passed into law by the Indian Parliament in 1971, and it was revised in 2021. According to the Indian Supreme Court, under the MTP Act 2021, all women, whether married or not, have the right to safe and legal abortions up to 24 weeks of gestation, as opposed to 20 weeks under the MTP Act 1971. Even though the MTP Act places numerous restrictions on abortion, it nevertheless violates women’s right to their bodies. If they do not meet the state’s abortion requirements, women are not given the option to select whether or not to end their pregnancy under this law, which means males on a panel determine what a woman should do with her body. Even though the action has been modified to provide women more power and assistance legally, it still has a patriarchal nature. And this is how the state either directly or indirectly infringes on the bodily autonomy of women.
The state has always violated physical autonomy, whether it is through abortion or marital rape. The MTP Act limits one’s freedom of choice and violates Article 21’s guarantees of the right to life and personal liberty. The woman ought to have control over her own body and reproductive choices. But due to state laws, there has been a tremendous violation.
The state can provide legal protections for bodily autonomy through laws and regulations that protect individuals’ rights to make decisions about their bodies. For example, laws that guarantee individuals the right to refuse medical treatment or testing. The state can promote education and awareness about it, both in schools and in the wider community. This can help individuals understand their rights and empower them to make informed decisions about their bodies. The state can ensure that individuals have access to comprehensive healthcare services that respect their bodily autonomy. Even the state can hold individuals and institutions accountable for violating bodily autonomy. By providing legal protections, promoting education and awareness, ensuring healthcare access, and enforcing accountability. The state can help individuals to exercise their rights and make informed decisions about their bodies.
Author(s) Name: Sakshi Chakrawati Waghmare (ILS Law College, Pune)