Indian Journal of Law and Legal Research Volume IV Issue VI | ISSN: 2582-8878

ABORTION IN INDIA: FROM CRIMINALIZATION TO

LIBERALIZATION

Jaspreet Singh, BA LLB, The Law School, University of Jammu

ABSTRACT

Prevalence of the practice of ‘abortion’ over centuries, its criminalization in

the colonial era, the opinion and changing attitude of the Indian legislature
towards abortion and the process of its liberalization are the significant and
remarkable phases in the evolution of the concept of abortion in India. The
Indian debate about abortion revolves around two perspectives – it being a
crime and another perspective of it being a matter of choice and freedom of
reproductive control of women. A major aspect to explore in this context is
the marked transformation of the approach towards abortion in India.
Readings from reports, surveys, committees and judicial decisions indicate
towards the complex nature and show unanticipated outcomes in the course
of abortion in India. At times, committees have been tasked to look into the
matter of abortion law and their effective implementation. Various
legislative measures have also been taken and laws on abortion have been
made by different governments over years since independence and amended
frequently with the passage of time. Furthermore, the Indian judiciary has
also played an active and exceptionally superlative part in promoting the idea
of ‘healthy abortion’ by providing it the umbrella of protection under Article
21 which is enshrined in Part-III of the Indian Constitution and declared it as
a matter of privacy, and has, therefore, expanded the scope of the option of
terminating the pregnancy.

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Introduction

The term ‘abortion’ can be interpreted as the act of ‘voluntarily terminating pregnancy’,
however, this common understanding about abortion is not always true because all abortions
are not voluntary. Abortion as a concept of medical, social and legal field is a broad term. Its
definition can be made to incline in favor of the person defining it as defining abortion is a two-
pronged way – where one way walks through the conservative path with closed door to
criminalize it and another way seeks to widen its scope and opens to the door of liberal world
and goes to the extent of declaring it a right. The conservative approach to abortion lies in the
idea that abortion is the killing of a person with a potential whereas those who see abortion in
the light of liberal sphere understand it as a right of a person with a potential over her body.
Thus, two approaches to understand abortion develop, namely, the pro-life and the pro-choice
approach. Pro-life advocate Ronald Dworkin defines abortion as ‘deliberately killing a
developing human embryo’ whereas pro-choice advocate Bernard Nathanson defines it as
‘separation of fetus from the mother…[or] the expulsion of the human fetus prematurely,
particularly at any time before it is viable or capable of sustaining life’.1India also has not
remained untouched by the pro-life pro-choice debate. In India, the concept of abortion or
reproductive rights cannot be seen in the absence of the context of factors like historical
approach, family size, fertility level, demand for abortion and contraception and gender related
pressures. Status of women has played a significant role while assigning the reproductive
choices to the women. India has witnessed and brought an entire shift from the notion of ‘crime’
of abortion to the constructive narrative of ‘right’ of abortion in the 21st century and in the
process, has evidently demonstrated the evolving nature of its law and the adaptability of its
citizens in terms of compliance with new laws amid changing social norms, crimes, needs and
rights.

Criminalization of ‘Abortion’ under Colonial Laws

Prior to 1971, a woman did not possess any right to undergo voluntary abortion, otherwise it
would constitute an offence under Section 312-316 of the Indian Penal Code, 1860. These
sections applied not only to the people who facilitated abortion but also to the woman
undergoing such abortion. These colonial provisions, however, could not put an end to this

1
The Ethics of Abortion, Women’s Rights, Human Life, And the Question of Justice, Author Christopher
Kaczor

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practice having been followed in India for centuries. The society at that time was not favorable
to a woman’s right to make reproductive choices. But with the problem of increasing
population Rule of Law is concerned primarily with the task of balancing between an individual
and a society.2

Indian Penal Code of 1860 does not define the word ‘abortion’, neither the word ‘abortion’ has
been used in the Code. However, IPC deals with ‘miscarriage’ under Section 312 to 316 of the
code. Section 312 limits the option of abortion only when the life of the pregnant woman is in
danger. The second provision of the Section criminalizes the act of woman wanting early
delivery of the child. Section 313 makes any person including a medical practitioner guilty who
aborts the woman’s pregnancy without her consent. Section 314 provides for the case where
death of woman occurs in causing miscarriage by the act of the accused done intentionally.
Section 315 deals with the cases where a person prevents the child from being born during the
gestation period. This section makes the mother herself, the medical practitioner and others
who facilitate abortion guilty for the same. These sections provisions for punishments as well
which include imprisonment for life, rigorous imprisonment/ simple imprisonment which may
extend to 10 years and fine and in some cases both imprisonment and fine. Sections 312-316
completely failed to distinguish between wanted and unwanted pregnancies.

Today, such stern laws against voluntary abortion were although brought in an environment
when female feticide or selective abortion of female fetuses was prevalent, however, as the
nation moved forward and with the coming of legislations like Pre-Conception and Pre-Natal
Diagnostic Techniques Act, 1994, these laws needed to be relaxed and liberalized keeping in
view the problem of continuous population growth and recognizing new human rights in the
form of right to abortion and other reproductive choices.

Towards the Liberalization of ‘Abortion’ in India

Justice Aharon Barak, former Chief Justice of Israel had once emphasized on the individual
aspect and its impact on the society under the Rule of Law when he remarked, ‘Social life,
however, is not a goal in itself but a means to allow the individual to live in dignity and develop
himself. The human being and human rights underlie this substantive perception of the rule of
law, with a proper balance among the different rights and between human rights and the proper

2
Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) and Ors. (2019) 1 SCC 1

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needs of society.’ This need for balancing between the society and women’s right to medical
termination of pregnancy under the existing retarding and narrow provisions of IPC, 1860 was
felt to liberalize Indian abortion laws was felt post-independence by the central government
and its various organizations and great concerns were expressed especially after 1960s.

Shanti Lal Shah committee

On 25th August, 1964 the Central Family Planning Board held their 16th meeting in which
concerns relating to illegal abortions whose numbers were on a continuous increase since 1960s
significantly were expressed. The main reason for the growing concern was that such illegal
abortions were performed by unprofessional, ill-equipped and partially or untrained persons,
in the absence of hygienic conditions, required ordinarily. As a result of such practices, the
health and life of females were severely affected. The union government of India then set up a
committee to look into the issues relating to abortion. The committee was also assigned with
the task to gather whether India was in need of laws in the sphere of abortion. Shri Shanti Lal
Shah, who was the then Minister for Public Health, Law and Judiciary, Government of
Maharashtra, and also a medical professional was the chairman of the committee which had to
deal with the ‘question relating to the requirement of legalization of abortion in medical, social,
legal and moral aspects.3

Observation of the committee

Firstly, induced abortions not only involve the individual but also the society. The
consequences of abortion can be understood by analyzing the trends of abortions in different
countries. Among many trends listed in the report, a few are - the prevalence of abortions
among the married and unmarried, cost of abortions and motivation for the same. Secondly,
after analyzing the trends of abortions in different countries whose data was officially available,
it was inferred that in the countries where the abortion is legalized, the immediate effect of the
legalization is increase in the number of legal abortions. The prime examples of such countries
are Hungary, Czechoslovakia, Poland, Romania, German Democratic Republic, France, United
Kingdom, Japan. Thirdly, the mortality rate pertaining to illegal abortions seemed to have
reduced in number after the legalization of abortion and the result was seen in the countries
like Hungary, Czechoslovakia, Yugoslavia, Poland, Sweden. The reason why high mortality

3
Report of The Committee To Study The Question of Legalisation Of Abortion, Ministry Of Health And
Family Planning, 1964

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rate prevails in India is that most of the abortions are done by the people who are unqualified.
Fourthly, as the number of induced abortions increased, the frequency of pre mature births
increased substantially. A child is called pre mature if it weighs less than 2500 grams at the
time of birth. The 1964 birth data shows that, in Hungary, ‘the ratio of premature births among
women who had no induced abortion was 10 percent, the same figure was 14 percent among
those with one induced abortion, 16 percent after two induced abortions and 21 percent after
three or more induced abortions.’4 Fifthly, in some countries the birth rate reduced after the
legalization of abortion, for instance, in Japan the birth rate got halved from 34.3 in 1947 to
17.2 in 1957. But some countries did not seem to have followed the same trend as in Soviet
Union the birth rate did not decrease with the legalization of the abortion. Sixthly, it was
observed that a woman who induced abortion once would resort to it several times. Seventhly,
the motives for undergoing abortions varied with varying culture and different political, social
and economic factors. In 1959, Mainchi News Papers carried out a survey in which it was found
out that out of the women who had undergone induced abortion, 58.4 percent women
mentioned contraceptive failure as the main reason for the abortion. Other reasons included the
difficulty to take care of the child, already having small children and would be difficult to bring
up another child etc.

Recommendation of the Committee

The committee submitted its report on 30 December 1966, however, in 1964 it had given a
recommendation that the abortion laws should be liberalized in order to implement them more
effectively and reduce unsafe and unadvised abortions. This liberalization of the abortion laws
would also help in reducing maternal mortality rates which was one of the major repercussions
of illegal abortions. Chapter 4 of the report contains the following recommendations:

Firstly, section 312 of IPC provides for the termination of pregnancy for saving the pregnant
woman’s life. It was recommended that section 312 should be liberalized to allow pregnancy
termination when furtherance of the pregnancy would result in a serious risk to life or grave
mental or physical injury to the health or if there is a possibility that the child born would be
abnormal and remain handicapped for the rest of its life and also if the pregnancy is an

4
Report of The Committee To Study The Question of Legalisation Of Abortion, Ministry Of Health And
Family Planning, 1964

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undesired result of rape or a result of intercourse with an unmarried girl who is under the age
of 14 or with a mentally defective woman.

Secondly, the abortions must be performed only by a qualified person who has been granted
the authority. The place for abortion has also been recommended by the committee which
should be approved by the State Government or by the Government of India. The abortion must
be approved by the practitioner by way of writing and shall also have the consent of the woman,
in writing, or of the parents or guardian of a girl who is under 18 years of age, for such
termination of pregnancy, before the beginning of the treatment.

Thirdly, the idea of small family primarily by method of contraceptives should be promoted
robustly along with the promotion of family life education and extension of accessible services
for family planning.

Legislative Measures to Liberalize ‘Abortion’

When a woman gets a pregnancy terminated voluntarily from a service provider, it is called
induced abortion.5 In India, induced form of abortion has been legalized and protected under
certain circumstances mentioned in the laws framed by the legislature. The Medical
Termination of Pregnancy Act of 1971 and its timely amendments are important in that respect.

Medical Termination of Pregnancy Act, 1971

Abortion in India was illegal till 1971 although the Shanti Lal Shah Committee had submitted
its recommendation in favor of the legalization of the abortion in India in 1964. Before 1971,
out of 5 million abortions being carried out every year, 3 million abortions were illegal.6 The
first step towards making abortion legal in India was the legislation of Medical Termination of
Pregnancy Act of 1971. In 1970, the MTP bill was introduced in the parliament of India. The
bill was passed in August 1971 after which it was made to operate from 1 April, 1972. The
government had framed rules for implementing the Act. The MTP Act draws most of its model
from the Abortion Act of 1967 of the United Kingdom.

5
Abortion incidence between 1990 and 2014: global, regional, and subregional levels and trends. 16 July
2016. The Lancet. Vol. 388, No. 10041. pp. 258–267
6
N. R. Madhava Menon, “Population Policy, Law Enforcement and the Liberalisation of Abortion: A Socio
Legal Inquiry into the Implementation of the Abortion Law in India”, 16 JILI 626 at 632- 33 (1974)

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The objective of the Act

The Preamble of the Act simply provides for the ‘termination of certain pregnancies by
registered medical practitioners and for matters connected’ with it or are incidental to it. Firstly,
it is a health measure as illegal abortion usually results in danger to life, it also affects the
mental and physical health of women. Secondly, the humanitarian grounds have also been kept
in mind in the formulation of the Act as pregnancy sometimes can be conceived as a result of
sex crimes which prominently include rape and sex with a mentally unsound woman. Thirdly,
sometimes it is assured by medical diagnosis that the unborn child when born will be deformed
or diseased. Abortion can be availed on such eugenic grounds as well. The MTP Act
acknowledges and safeguards the reproductive autonomy of pregnant woman.

Conditions for termination of pregnancy under the Act

Under the Act, the pregnancy can be terminated when gestational period is of less than 12
weeks (Section 3(2)(b)). In a case, where the duration of pregnancy exceeds 12 months but has
yet not exceeded 20 weeks, abortion can be done after an authentic assessment by two doctors.
If it is diagnosed by the doctors that there is a probability of the child being born physiologically
abnormal or mentally disabled, the continuance of pregnancy will result in risk to bodily or
mental injury to the women or if the pregnancy is the result of rape or if the woman is mentally
unwell, pregnancy can be terminated.

Medical Termination of Pregnancy Amendment Act, 2002

MTP Act was amended in 1971. In the amendment act, the key focus was on the district level
committee that was given the responsibility to decide whether abortion services can be
provided by private bodies and establishments. The penalties for violating the provisions were
made more stringent and harsher especially the provisions providing for the time and place for
carrying out the procedure of abortion. Another major amendment was the replacement of the
term ‘lunatic’ with ‘mentally ill person’.

Medical Termination of Pregnancy Rules of 2003

Section 6 of the MTP Act, 1971 confers powers on the Union government to make rules for
carrying out the provisions of the Act by notifying in the Official Gazette. In 2003, the central
government exercised the power conferred under Section 6 and made the regulations for the

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Act. These rules include rules relating to certification of the abortion after 3 hours of it being
done by the medical practitioner (section 3), custody of forms (section 4) and maintenance of
admission registers (section 5).

Medical Termination of Pregnancy (Amendment) Act, 2021

The major amendments done to the MTP Act, 1971 by the subsequent MTP Amendment Act
of 2021 significantly expand the liberal nature of the statute on two major accounts. Firstly, it
increases the upper limit of legal abortions in terms of stipulated number of weeks under the
Act. Section 3(2) of the Act increases the previously existing upper limit from 12 weeks to 20
weeks for resorting to abort the pregnancy. Also, the time limit for legal abortion in case of
exceeding 20 weeks which required the assessment by two registered medical practitioners has
now been amended to 24 weeks. The second account of amendment displays the social
liberalization objective of the Act. The expression ‘any married woman or her husband’ is
replaced by ‘any woman or her partner’. Hence, the amendment act seeks to normalize
pregnancies arising as a result of non-marital relations. An unmarried and single pregnant
woman is made to stand on the same pedestal as married woman, thus, enlarging and
broadening the original scope of the Act.

National Health Mission 2012-2017

The National Health Care Mission focuses on improving the access to the services for safe
abortion. Such services include post abortion contraceptive counselling and the expansion of
the amenities that provide MTP services. There is also an arrangement for providing MTP
services in every block especially that has a 24x7 facility. Manual Vacuum Aspiration and
medical abortion are the methods that are employed for the abortion procedures. Manual
Vacuum Aspiration is an in-clinic procedure and is considered safe in which instruments such
as silent suction device are used for terminating pregnancy. The primary Care List of Assured
Services provides for a number of services by a primary care team which consists of the staff
of PHC (Primary Health Care), sub centres and CHWs (Community Health Workers) which
includes the provision for safe abortion services.7

7
Framework for Implementation of National Health Mission 2012-2017

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Role of the Indian Judiciary in Liberalizing ‘Abortion’

It was conclusively determined by a nine Judges bench in Justice K.S. Puttaswamy and Anr.
vs. Union of India (UOI) and Ors.,8 that Privacy is a natural right and therefore, Right to
Privacy is a fundamental right under Article 21 of the constitution. It was also specifically laid
down by the Court that one of the aspects of the right to privacy concerns with any form of
invasion of the rights of a person relatable to his physical body. This view of the Apex Court
has widened the horizon of women’s rights in the sphere of abortion laws and has given a
directional prospect and its possible interpretations. The Court has clearly stated, “The sanctity
of privacy lies in its functional relationship with dignity”. By the addition of the element of
individualistic dignity while forming the basis of privacy, the court has taken the country a step
further in medico legal filed as well. In the absence of the choice making ability, personality’s
inviolable nature would be in the peril of getting eclipsed. Privacy includes the aspects of
sanctity of family life, procreation, sexual orientation etc. and their preservation. Linking the
concept of privacy to the physical body of the individuals, the court stated that when state seeks
to intrude into the body of subjects, the concerns relating to privacy arise. Limits are forced on
the powers of the legislative majority if by exercising such powers, certain biological
experiments are conducted by keeping the dignity and personality of the individual at stake.
Therefore, the ambit of privacy covers the choice of a woman whether or not to abort her
pregnancy.

Clear focus on the consent of the woman undergoing abortion has become a priority of Indian
Judiciary as giving significance to the consent of an individual would secure individual’s
dignity as well. In Suchita Srivastava vs. Chandigarh Administration9, the priority of ‘consent’
is visibly extended and has been inferred from the reading and language of the Medical
Termination of Pregnancy Act, 1971 and its later amendments. A woman’s reproductive choice
should be paid due respect even if other significant factors such as less understanding of the
sexual act due to mental retardation and lack of knowledge about her capacity to continue the
pregnancy to its complete period and maternal responsibilities. Suchita Srivastava’s case has
gone miles forward to address the intricate issue of abortion in cases where women suffer from
mental disorders. The Court vehemently took the position in support of mandating consent in
cases of pregnant women with the condition of mental retardation for undergoing abortion and

8
(2019) 1 SCC 1
9
(2009) 14 SCR 989, (2009) 9 SCC 1

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laid emphasis on Section 3 of the MTP Act, 1971, which contemplates that even if a woman is
mentally retarded, no termination of pregnancy can be carried out if there is an absence of
consent. Reproductive choice does not confine itself to ‘procreation’ only but also operate to
provide free choice to refrain from procreating. There is no restriction on a woman’s right to
refuse to participate in a sexual activity. Nor can she be forcibly insisted to resort to
contraceptive methods. The procedures for sterilisation can only be resorted by a woman if she
deems it right as she is free to choose the birth control methods. Nevertheless, the reasonable
restrictions contained in the MTP Act, 1971 as to when and how the termination of pregnancy
has to be carried out and when the option of aborting the pregnancy is not available to the
women have to be complied with as any law has the tendency to be abused. A liberal stance
was adopted by the court and reliance was put upon the ‘best standard test’ for upholding the
reproductive rights of women.

In September 2022, the Supreme Court addressed the problem of social stigma in a civil
appeal10 that unmarried women face in pre-marital relations which prevents them from
exercising their right to make reproductive choices. They even face lack of access to
contraceptives and healthcare providers. They also lack support from their families due to the
fear of losing respect and standard in the society and they secretly resort to abortion through
illegal means by unqualified or uncertified medical practitioners. Keeping in view the plight of
unmarried women and disastrous consequences faced by them, the Court turned to interpret
section 3(2) 0f the MTP Act and Rule 3B of the MTP Rules. By applying the rule of Purposive
Interpretation, the court declared that the abortion can be availed by unmarried women, single
women and women without a partner, thereby, expanding the availability of the option of
abortion to women other than those who are married. This ruling conferred equal rights of
abortion on married and unmarried women.

Conclusion

Despite the fact that the practice of abortion had been prevalent in the country for centuries yet
post independent India was quite conservative an environment against the liberal ideas of
abortion and population control. Indian Criminal law somewhere reflects the touch of
conservative approach towards the women wanting to abort the pregnancy. But later laws like
MTP Act and its amendments reflect the changing attitude of the nation towards the much-

10
Civil Appeal No. 5802 of 2022

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needed positive approach for abortion. A 2016 report by the Guttmacher Institute published in
The Lancet, Unintended Pregnancy and Abortion in India (UPAI), summarises the 2015 state-
level findings relating to the incidences of abortions. This study was based on the study of six
Indian states – Assam, Bihar, Gujarat, Madhya Pradesh, Uttar Pradesh and Tamil Nadu. In five
of these states, more than three quarter facilities for induced proportions were majorly provided
by the private sector. Only in Assam, 55 percent of the facilities are provided by the public
sector. The government through various schemes has been endeavouring to make abortion
services accessible to those seeking to resort to it by introducing policies, campaigns and
issuing timely guidelines for making the process of abortion smooth and by expanding the
scope of existing laws which limit the arena of legal grounds for abortion. The judiciary has
been acting as an additional assurance to secure abortion rights to women and make abortion a
healthy and normally accepted medical choice by expanding the horizon of laws by interpreting
them to the widest extent possible and hence, has kept a supervision to pave the way for the
positive and liberal evolution of the practice of abortion in India.

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