Breaking the Chains: The Need for Decriminalization of Section 312 of the

IPC for Women's Health and Reproductive Rights

CRIMINAL LAW RESEARCH PAPER

Submitted By: Submitted To:

Aabhash Kumar Dr. Julian Seal Pasari
Semester: 4 Assistant Professor
Roll No: 1270 Criminal Law
Section: B

National University of Study and Research in Law, Ranchi.

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Acknowledgement

I would like to thank my instructor, Dr. Julian Seal Pasari, for giving me the wonderful
opportunity to work on this fantastic Criminal Law project and for guiding me through it. I
learned a lot. I'm grateful to her.

Second, I want to thank my parents and friends for helping me finish this project on time.

Name- Aabhash Kumar

Roll No.- 1270

Semester- IV

Section- B

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TABLE OF CONTENTS

RESEARCH PROBLEM ................................................................................................................ 4

RESEARCH QUESTIONS ............................................................................................................. 4

RESEARCH METHODOLOGY ...................................................................................................... 5

UNDERSTANDING THE CONCEPT? ............................................................................................. 5

ABORTION LAWS IN INDIA: UNDERSTANDING THE CURRENT LEGAL FRAMEWORK .............. 6

PROVISIONS IN THE IPC ............................................................................................................ 7

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 ...................................................... 8

A WOMAN'S RIGHT TO CHOOSE: IDENTIFYING THE BARRIERS .............................................. 9

THE NEED OF DECRIMINALIZATION: REPRODUCTIVE JUSTICE DEMANDS ............................ 11

CONCLUDING REMARKS ......................................................................................................... 12

BIBLIOGRAPHY ........................................................................................................................ 14

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RESEARCH PROBLEM
One of the most liberalizing facets in the administration of gender justice and equality
remains to be providing access to hygienic and safe abortion procedures for women. The
right to abortion is a women’s individual right and personal liberty. To force a woman tohave
a child and continue an unwanted pregnancy infringes her right to privacy and bodily
integrity. Abortion or miscarriage refers to the induced termination of pregnancy before the
fetus is born. In India, the laws recognize abortion only up to 24 weeks of the pregnancy and
only for a stipulated number of reasons, making it difficult for women to have access to a safe
and hygienic abortion. In a country like India, where abortion is still a taboo and a very meagre
population of women have access to safe abortion procedures, it becomes very important to
revisit the provisions relating to abortion. In criminal law, the term “abortion” is generally
used to describe an intentional termination of an unborn fetus. It generally does not cover the
concepts of miscarriage or spontaneous abortions. Except in certain circumstances, Section
3121 of the Indian Penal Code makes it a crime to cause a woman to miscarry. Women's
reproductive rights have been criticised for being limited and unfairly treated by this section.
To guarantee that women have the freedom to make choices about their own bodies, Section
312 has been criticised and called for to be decriminalised. This research project's goal is to
analyse how decriminalising Section 312 of the IPC will affect Indian women's reproductive
rights. There should be decriminalization of Section 312 of the Indian Penal Code which deals
with voluntary miscarriage as this is an archaic provision. It should be amended to suit the
contemporary needs and provide for safe and hygienic abortions for women.

RESEARCH QUESTIONS
➢ What is the provision under section 312 and understanding the current status?

➢ In light of women’s mental and reproductive health, should Section 312 of the Indian
Penal Code be decriminalized?

1
The Indian Penal Code, 1860, Sec. 312, No.45, Acts of Parliament, (1860).

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RESEARCH METHODOLOGY

This research paper has been written using an analytical and descriptive approach. The
researcher has used various secondary sources of information such as books, journals etc. to
write this thesis. The research paper has also been written, analysing and comparing various
legislations and statutes.

UNDERSTANDING THE CONCEPT?

Throughout history, there are multiple accounts of women practicing birth control procedures
abortions. These practices are not just concerned with medicine, but also have resulted in
numerous ethical, legal and political debates. Women, throughout history have resorted to
abortion but more often than not, their access to abortion procedures has been countered due
to the social and legal restrictions that prevail in society with their roots usually tied to
morality and religion. The norms and rules relating to abortion have been molded and
remolded to suit the needs and changes prevalent in society. The changes in legislations
relating to abortion have invariably been tied to the fulfilment of societal needs that generally
do not recognize a woman’s right to determine their sexuality, fertility and reproduction.
Thus, for a plethora of reasons, abortion has emerged and remained as a controversial subject
in most societies as it is inextricably tied to morals and ethics prevalent in the society at that
time. Abortion laws are generally legislations that are to do with provisions of abortion. In
most societies, abortion is either banned or limited and restricted. The issue of abortion is as
much a policy issue as much as it is a moral issue. This is the reason why there is the
emergence of various pro-choice v pro-life issues. The mere fact that an issue is generally not
construed as moral does not mean that it shouldn’t be legal. The Indian Penal Code (IPC)1,
when it was enacted in the year 1860, kept in mind the religious, moral, social and ethical
sentiments of the society. Thus, the criminal code has defined and punished various offenses
relating to injury to the unborn fetus and voluntary miscarriage. These provisions were
enacted based on the basic notion and premise that human life is sacred and that legal
protections should extend to even the unborn child in the womb of the mother. Section 312
and 313 of the Indian Penal Code criminalize not just, miscarriage without consent, but also
miscarriage with consent. The first legislation with regard to abortions in India was in the
Indian Penal Code. In 1860 with the establishment of the Indian Penal Code, the archaic laws
relating to abortions were also enacted in the form of Section 312-316. These provisions of
the Indian Penal Code criminalize voluntary miscarriage. This leaves women in a helpless

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and in a vulnerable position where the law forbids them to access safe abortion procedures
which forces them to resort to unsafe,unsanitary and unhygienic procedures either at home or
in unequipped medical centers with incompetent staff that puts not just the mother’s, but also
the child’s life at risk. The Madras High Court recently expressed concerns over women
approaching courts for judicial authorization to terminate pregnancy.2 The court further noted
that even in case of rape survivors, a lot of them have been compelled to approach the courts
for judicial assent to terminate the pregnancy. The court reiterated and emphasized that as per
the Medical Termination of Pregnancy Act, 1971, as long as the gestational period is less than
20 weeks, the assent of a medical practitioner should suffice. The Medical Termination of
Pregnancy Act, 1971 was introduced to suit the needs of modern society and ensure that every
woman has the inherent right to make autonomous decisions about her own body. It also
aimed at regulating and limiting the misuse of other unsafe methods of abortion and soften
the archaic law under Section 312 of the Indian Penal Code and move to a more pro-choice
outlook.

ABORTION LAWS IN INDIA: UNDERSTANDING THE CURRENT LEGAL FRAMEWORK

According to the provisions of the Indian Penal Code, abortion is a criminal offense for not
just the woman, but any other person including the doctor who performs the procedure, except
in cases where the procedure is done in good faith in order to save the mother’s life. Section
312 of the Indian Penal Code criminalizes abortion and makes anyone who is the cause for
the abortion liable for this offense. Broadly speaking, Sections 312 to 318 deal with offenses
relating to miscarriage, injury caused to an unborn child, exposure of infants to risks and for
concealment of birth. Abortion except for the purpose of saving the mother’s life3, causing
death of the woman in attempt to abort3, preventing a live birth or causing death of child after
birth5, causing death of quick unborn child4 and exposure and abandonment of a child under
twelve years of age5 is a criminal offense under the Indian Penal Code. These offenses are
quite serious in nature as the prescribed punishment for them range from sevento 10 years
and sometimes even life imprisonment. The framers of the penal code took a serious view
upon these offenses as all these offenses except for Section 312 are cognizable and non-
bailable. These offenses and provisions while being formulated with gender-neutral terms and

2
X v state 14506 of 2018
3
The Indian Penal Code, 1860, Sec. 315 No.45, Acts of Parliament, (1860).
4
The Indian Penal Code, 1860, Sec. 316, No.45, Acts of Parliament, (1860).
5
The Indian Penal Code, 1860, Sec. 317, No.45, Acts of Parliament, (1860).

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hence, deal with both men and women in the same manner. Prima facie, these provisions seem
protective of women as a greater punishment is rewarded to the offender in cases where there
is no consent of the woman. These provisions in criminal law do not draw a distinction
between intentional bodily harm and medical negligence causing quite a bit of ambiguity.
However, as these provisions do not make any distinction between the terminationof a wanted
and unwanted pregnancy, it makes it demanding and challenging for women to access safe
and hygienic abortion procedures.

In India, abortion is legal in certain circumstances as per the Medical Termination of

Pregnancy Act, 1971. The Medical Termination of Pregnancy (MTP) Act, 1971 was enacted
to legislatively govern abortions to help doctors terminate pregnancies under certain
circumstances.

PROVISIONS IN THE IPC

“Section 312. Causing miscarriage- Whoever voluntarily causes a woman with child to
miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the
life of the woman, be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both; and, if the woman be quick with child, shall
be punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Explanation: A woman who causes herself to miscarry, is within the meaning of this
section.”

This along with Section 316-319 talk about voluntary miscarriage. These provisions or
sections of the IPC deal with offenses relating to miscarriage and aggravated offenses
relating to the same, where the miscarriage is caused with or without the consent of the
woman resulting in the death of the fetus. These provisions are only applicable in cases
where the miscarriage has happened voluntarily and not due to any accident. The term
“voluntarily” hasbeen defined in Section 39 of the Indian Penal Code. With this being said,
intention or the mens rea to cause the miscarriage is an essential ingredient to this offense.
This includes administering to a pregnant woman any medication that may result in the
abortion of the unborn child. A person is criminally liable for attempt to cause miscarriage
under Section 312r/w Section 511 IPC. In Queen Empress v. Aruna Begum, the woman’s
term of pregnancy was almost complete and there was an attempt to abort, which resulted

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 in the birth of the child. The conviction under Section 312 IPC was set aside and the woman
was charged underSection 511 IPC for the attempt to cause miscarriage.

Woman with child and woman with quick child

As per the provisions of the IPC, specifically Section 312, the act of causing miscarriage is
said to be an offense in two cases- when a woman is ‘with a child’ and when a woman
is‘with a quick child.’ Based on judicial interpretations in this regard, a woman ‘with a quick
child’ is said to be a pregnant woman whose gestation period has just begun. The latter is
saidto be a woman who is in her later stages of gestation and can generally feel the movement
of her child. Generally, the term ‘with a quick child’ refers to more advanced stages of
pregnancy. Quickening is the perception by the mother that the movement of the fetus has
taken place or the embryo has taken fetal form.6 The offense of causing miscarriage to a
woman ‘with a quick child’ is considered to be a graver offense and generally invites a period
of imprisonment that extends to a term of up to 3 years along with a fine, whereas, causing
a miscarriage to a woman ‘with child’ invites a punishment of simple imprisonment for a
period of up to 7 years and a fine, or both. In 1886, sometime right after the enactment of
the penal code, a woman in the case of Queen Empress v. Ademma,7 was charged under
Section 312 of the IPC for voluntarily causing her own miscarriage when she was around
onemonth pregnant. She was only around one month pregnant which means there was no
rudimentary ‘child’ or ‘foetus.’ The High Court held that it was the duty of the mother to
protect the foetus right from the moment of conception of the child.

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The Medical Termination of Pregnancy (MTP) Act, 1971 was enacted to provide woman
with access to safe abortion procedures in certain cases. While the MTP Act is seen as
progressive legislation, it does not really give a woman the power to decide whether or
notshe wants to continue her pregnancy. This Act allows medical practitoners to perform an
abortion in certified medical centres only up to 20 weeks gestation and that too, only under
certain circumstances.

i.) Risk to the life of woman

ii.) Risk of grave injury to her physical and mental health.

6
Re Malayara Seethu, AIR 1955 Kant 27.
7
Queen Empress v. Ademma (1886) I.L.R. 9 Mad 369.

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 iii.) Serious foetal abnormalities.
In India, only few categories of women have access to safe abortion procedures. The MTP
Act lays down certain criterions for legal abortions, but due to the strict penalties imposed by
the Act, medical practitioners are often in fear to terminate a pregnancy. The second
explanation clause of Section 3 of the MTP Act, 1971 by mentioning ‘married woman’
explicitly deny unmarried woman the access to a safe abortion procedure. Furthermore, as
abortions are only allowed on the limited grounds and requires the permission of either one
ortwo medical practitioners based on the level of advancement of pregnancy, women are often
forced to resort to unsafe abortion procedures. These limited and restrictive grounds for
abortion, the existence of various other barriers besides the law itself and the criminalisation
of the same result in the failure to address this as an issue relating to public health and a
woman’s reproductive health.

A WOMAN'S RIGHT TO CHOOSE: IDENTIFYING THE BARRIERS

For a lot of women across the country, access to abortion remains one of the biggest
challenges. The MTP Act, 1971 and its subsequent amendments have been touted as
progressive and the certain judgements have moved away from the strict interpretation of
Section 312 of the IPC. However, the access to safe and hygienic abortion procedures remain
to be a major hurdle. Along with the restrictions imposed by the MTP Act, 1971, there exists
many internal and external factors that pose a hurdle to abortion access in the country. For
instance, Section 3 of the MTP Act, 19718 states that in order to terminate a pregnancy up to
20-week gestation, the woman must get the permission of a medical practitioner for a
pregnancy of twelve weeks and the permission of two medical practitioners for a pregnancy
ranging between twelve and twenty weeks. Such permission of the medical practitioners must
be given in good faith and in consonance with the conditions laid down in the Act. Section 5
of the MTP Act states that in cases where the medical practitioner in good faith believes that
there is an emergent and immediate necessary to perform an abortion to save the life of the
woman, it is legally permissible. Judging by the verdicts pronounced in the Supreme Court
and High Court on the termination of pregnancy after the 20-week gestation period, it can be
noted that it is quite inconsistent. The courts seem to be basing their decisions off varied
parameters such as the viability of the fetus which is in a way, digressing from the original
provision that discusses the physical and mental health of the mother. In case of victims of

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Medical Termination of Pregnancy Act, 1971, Section 3

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rape, the court has relied primarily on the opinion of the medical board whose advice has
again been on an inconsistent set of criterions and parameters. In Murugan Nayakkar v.
Union of India9a 13-year old girl who was avictim of rape was allowed to get an abortion
based on the mental trauma she suffered upon the sole opinion and advice of the medical
board. High Courts across India have granted permission to get an abortion post the 20-week
mark in multiple cases such as Sheikh Ayesha Khatoon v. Union of India,10 and Bhavikaben
v. State of Gujarat.11 In the case of R v. State of Harayana,12 the hon’ble High Court of
Harayana observed that referring the case of a pregnant woman requiring an abortion to
multiple medical boards only created delay and results in the woman not being able to get an
abortion as it is past the 24-week mark. The court has clarified that the medical practitioners
acting in good faith will not be prosecuted unnecessarily. The courts have taken a stance and
have observed that multiple layers of authorization infringe upon a woman’s reproductive
health. It is to be noted that no where in Section 2 or 3 of the MTP Act, 1971 does it talk about
judicial intervention or intervention from the medical board and all of this is completely
outside the scope of the Act. This kind of third-party barriers to a woman’s right to seek
abortion is detrimental to the physical and mental of the mother and the life of the child in the
womb. The United Nations Human Rights Committee (UNHRC) has said that a woman’s
pregnancy is solely between her and her doctor and the courts have no reason to intervene in
the same and that such an intervention would amount to a violation of the woman’s right to
privacy.13 This must be followed in Indiaas well to avoid unwanted stress and difficulties for
a pregnant woman. Apart from the draconian provision- Section 312 IPC and the limitations
of the MTP Act, 1971, women in India have to undergo a lot of struggles in the form of third-
party authorizations to undergo an abortion. This kind of double layer of authorization, one
from the court and from the medical board is quite unnecessary and makes it more
cumbersome the person wanting the abortion. A nod from the court and such third-party
requirements undermine a woman’s right to her own body and her autonomy. There seems to
exist an unwritten rule that coerces pregnant woman to get a judicial assent to undergo an
abortion. This causes unnecessary anxiety and trauma for the woman. This fear is further
fueled by the laws on sex-selective abortion in our country.

9
Murugan Nayyakar v. Union of India, (2017) SCC Online SC 1902
10
Sheikh Ayesha Khatoon v. Union of India, (2018) 3 Mh. LJ
11
Bhavikaben v. State of Gujarat, (2016) SCC Online Guj 9142.
12
R v. State of Harayana, (2006) SCC Online P&H 18369.
13
LMR V. Argentina, Human Rights Committee (2011).

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THE NEED OF DECRIMINALIZATION: REPRODUCTIVE JUSTICE DEMANDS
Across the globe, criminal law has been used to restrict sexual intercourse that is perceived to
be violent and intercourse between consenting adults. Surveys show that when there are strict
norms and laws that restrict and criminalize consensual intercourse between adults, it proves
to be an impediment to a woman’s access to sexual heath care services. Criminalization of
such offenses often result in imposing disproportionate penalties on women and those aiding
her. Reproductive rights should also include the right to access safe abortion.
The criminalization of abortion harms women in need of terminating their pregnancy in many
ways. Primarily, the criminalization of the abortion remains a hindrance to access safe
abortion procedures. Just because it is a criminal offense does not mean there is no demand
for abortions anymore; all it means is that there are no safe abortion options available to the
women. A direct consequence of this is that women will start accessing underground or illegal
methods of termination of the pregnancy that are unsafe and less than optimal. These
procedures are performed with a low standard of care and not by competent medical
practitioners which increases the probability of both the woman and the child being put at
risk. These unsafe methods of terminating pregnancy result in higher maternal mortality rates.
Research and statistics suggest that around two-third of the abortions in India are unsafe. The
effect that criminalization of the offense results in women resorting to unsafe and illegal
means of termination of the pregnancy. In India, there are many taboos that surround
abortions and hence, women are put in further mental distress and in a dilemma as to whether
or not to opt for a safe abortion procedure. A plethora of reasons produces a disturbing effect
on the exercise of reproductive autonomy. This is true for even other act that are supposedly
immoral and hence, and a criminal offense. For instance, the criminalization of sex work or
prostitution and the stigma surrounding it prevents women involved in that sphere of work to
access the legal system and report the violence inflicted on them. Anti-abortion laws in the
country cause more issues to the already marginalized section of society. The high prices of
abortions in the private sector make it hard for people belonging to the lower sections of
society to access reproductive health care services. The case of Amita Kajur v. State of
Chattisgarh,14 stands testimony to this fact and demonstrates the many socio-legal issues that
surround abortion in India.

The court in K.S. Puttuswamy v. Union of India15 held that “the exercise of reproductive

14
Amita Kajur v. State of Chattisgarh (2009) 9 SCC 1
15
K.S. Puttuswamy v. Union of India. (2016) 10 SCC 726.

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choices is rooted within a constitutionally protected right to life and personal liberty within
Article 21 of the Constitution.” The right of a woman to abort her child has its roots in her
right to privacy, dignity and bodily integrity. A woman’s right to make decisions relative to
her reproductive anatomy is inextricably tied to her right to privacy and self-determination.
In the Puttuswamy judgement, the hon’ble Supreme Court discussed two landmark cases
which helped in the advancement of reproductive justice in the country, namely, Suchita
Srivatsavav. Chandigarh Administration16 and Devika Biswas v. Union of India.17 The
Supreme Court underlined the importance of sexual anatomy and the role it plays in the idea
of a free individual in the case of Navtej Singh Johar v. Union of India18In Joseph Shine v.
Union of India,19 the learned judges recognized the right to sexual autonomy as a
constitutional right. There are several good reasons to abolish this antiquated section of the
criminal code. It is clear that one of the major factors contributing to the high rates of maternal
mortality in our nation is the difficulty in getting a safe abortion. Both the mother and the
child are at risk when using these unsafe abortion techniques. The decriminalisation of this
provision is the only way to stop and reduce the majority of abortions in India, which are
performed using risky methods. The right of a woman to choose her own reproductive options
is a part of her right under Article 21 and must be respected, according to numerous rulings

CONCLUDING REMARKS
Abortion should no longer be considered a criminal offense as there are mostly detrimental
effects of it not just on the pregnant mother, but also on the fetus. It should be considered as
anon-criminal healthcare service and procedure which is accessible to all and the decision of
the same should be left to the patient, i.e., the pregnant mother and her doctor. The current
legal framework in India, especially Section 312 of the IPC that criminalizes voluntary
miscarriage jeopardizes not just the physical health, but also the mental health of any woman
wanting to undergo an abortion, leaving them in a state of fear and distress. The barriers to
access abortion leads to both unsafe abortions and a higher maternal mortality rate. The
criminalization of abortion has a chilling effect on the sexual and reproductive autonomy and
rights that a woman has. A woman has the right to bodily autonomy and integrity which
includes the right reproductive autonomy that is violated due to the criminalization of
abortion. When women are forced to bear a child, the right to equality and non-discrimination

16
Suchita Srivatsavav. Chandigarh Administration2018) ( 10 SCC 1
17
Devika Biswas v. Union of India. (2019) 3 SCC 39
18
Navtej Singh Johar v. Union of India is (2018) 10 SCC 1
19
Joseph Shine v. Union of India is (2019) 3 SCC 39.

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guaranteed to them infringed as they don’t have the right to exercise their own decisions. The
decriminalization of Section 312 and the required amendments to the MTP Act will mean that
not just women and girls, but also gender diverse people have access to safe abortions and
can exercise their rights freely. Thus, in view of the alarming statistics that plague
reproductive medicine, it is important for the legislation in India to fall in line with a more
individualistic approach towards abortions.20 It is the need of the hour to accept abortions in
the country, especially at a time when the courts have themselves recognized the right to
reproductive choices as a right that comes under the ambit of Article 21 which guarantees the
right to life and personal liberty.21

20
World Health Organization. Medical management of abortion, WHO, (2019).
21
Suchita Srivatsava & Anr. v. Chandigarh Administration, (2009) 11 SCC 409.

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BIBLIOGRAPHY

➢ The Indian Penal Code, 1860.

➢ The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994.

➢ Kelkar, R. V. “IMPACT OF THE MEDICAL TERMINATION OF PREGNANCY

ACT, 1971: A CASE STUDY.” Journal of the Indian Law Institute, vol. 16, no. 4,
1974,. JSTOR, www.jstor.org/stable/43950394.

➢ Internet Sources

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