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This article is written by Diksha Paliwal. The article begins with a brief introduction of the
term ‘abortion’, followed by a detailed study of various provisions relating to abortion and
the separate Act, i.e., the Medical Termination of Pregnancy (MTP) Act, 1971, along with
important case laws and recent developments.
Table of Contents
1. Introduction
2. Meaning of abortion and miscarriage
3. Abortion in India: legal or not
4. Abortion laws in India
4.1. Indian Penal Code, 1860
4.2. Constitutional provisions
4.3. Preconception and Prenatal Diagnostic Technique Act, 1994
4.4. Medical Termination of Pregnancy (MTP) Act, 1971
4.4.1. History of the enactment
4.4.2. Objective and applicability
4.4.3. Definitions
4.4.4. Termination of pregnancy
4.4.5. Authorized place where abortion can be done
4.4.6. Non-applicability of Sections 3 & 4
4.4.7. Power to make rules
4.4.8. Protection provided under the MTP Act
4.4.9. Constitutionality of Sections 3(2), Explanation 2 of Section 3(2), Section 3(4) & Section 5
5. Important amendments and rules in the MTP Act, 1971
5.1. The Medical Termination Of Pregnancy (Amendment) Act, 2002
5.2. Medical Termination of Pregnancy Rules, 2003
5.3. Medical Termination of Pregnancy (Amendment) Act, 2021
6. New abortion law in India
6.1. Historical background of the Act of 2021
6.2. Highlights of the amendment
6.3. Drawbacks of the new abortion law in India
7. Case laws involving abortion
7.1. Nand Kishore Sharma and Ors. v. Union of India (2005)
7.1.1. Facts of the case
7.1.2. Issue before the Court
7.1.3. Judgment of the Court
7.2. Suchita Srivastava and anr. v. Chandigarh Administration (2009)
7.2.1. Facts of the case
7.2.2. Issue before the Court
7.2.3. Judgment of the Court
7.3. Devika Biswas v. Union of India (2016)
7.3.1. Facts of the case
7.3.2. Issue before the Court
7.3.3. Judgment of the Court
7.4. Meera Santosh Pal v. Union of India (2017)
7.4.1. Facts of the case
7.4.2. Issue before the Court
7.4.3. Judgment of the Court
7.5. Mrs X and Ors. v. Union of India (2017)
7.5.1. Facts of the case
7.5.2. Issue before the court
7.5.3. Judgment of the Court
7.6. Minor R Thr Mother H v. State Of Nct Of Delhi & Anr. (2023)
7.6.1. Facts of the case
7.6.2. Issue before the Court
7.6.3. Judgment of the Court
7.7. Abc v. State Of Maharashtra (2023)
7.7.1. Facts of the case
7.7.2. Issues before the Court
7.7.3. Judgment of the Court
8. Conclusion
9. FAQs
9.1. What are some difficulties that arise in the effective implementation of various policies
pertaining to the availability, accessibility, and safety of induced abortion services?
9.2. Which department of the government ensures access to safe abortion in India?
9.3. What are the provisions that talk about forced abortions?
9.4. What is the legal age for women for abortion in India?
9.5. Whether father’s consent is important for abortion?
9.6. In a few recent verdicts, how has the Apex Court expanded the scope of abortion rights
in India?
9.7. What are certain unintended barriers to safe abortion for adolescent girls in India due to
the prevalent conflicting laws on the same subject matter?
9.8. Does the woman’s decision to undergo an abortion amount to cruelty toward her
husband?
10. References
Introduction
The term ‘abortion’, also called ‘induced abortion’, refers to the medical procedure to end a
pregnancy. The practice of abortion and the laws pursuant to it have always been a topic of
debate based on various customs, traditions, moral beliefs, etc. While some people
consider the termination of pregnancy an intrinsic right in a woman’s life, others view it as
the killing of the fetus, saying that as soon as the fetus develops in the body of a woman, it
is capable of feeling pain.
The article focuses on the various abortion laws in India, including a brief history that led to
the enactment of a separate abortion law in India, i.e., the Medical Termination of
Pregnancy (MTP) Act, 1971. The article further includes various landmark cases pertaining
to abortion and the judicial interpretation of the abortion laws in India.
The term ‘miscarriage’ means the expulsion of the contents of the womb (embryo or fetus)
before the period of gestation is complete. Put simply, it means giving birth to a baby
before it is fully developed or viable, thus, resulting in its death. It is the spontaneous loss
of pregnancy. In the medical sense, the term means the expulsion of a fetus from the
uterus within six weeks after conception.
Medically, there exist three different terms, namely abortion, miscarriage, and premature
labour, that denote the expulsion of a fetus based on the different stages of gestation at
which the expulsion or termination of pregnancy is carried out. The term abortion is used
when the termination of pregnancy is carried out before the placenta is formed, i.e., within
the first three months of pregnancy, whereas miscarriage denotes the expulsion of the
fetus within the first fourth-seventh month of gestation before it is viable or developed. The
third term, i.e., ‘premature labour’ means delivery of a premature baby possibly capable of
sustaining life.
Both of the above terms are often regarded as synonymous with each other. Taylor, in his
Principle and Practice of Medical Jurisprudence (13th edition), states that the terms
‘miscarriage’ and ‘abortion’ is legally synonymous since the fetus is regarded as human life
from the moment of fertilization. In the case of Jacob George v. State of Kerala (1994), the
Apex Court, while dealing with these two terms, i.e., abortion and miscarriage, held that
‘miscarriage’ connotes ‘spontaneous abortion’ whereas ‘abortion’ is said to be ‘miscarriage
produced by unlawful means’. The Court further opined that the destruction of the life of a
fetus is abortion or miscarriage.
As far as India is concerned, it enacted a law just a few months before the pronouncement
of the judgment in Roe’s case. The Parliament enacted the Medical Termination of
Pregnancy (MTP) Act in 1971, which came into force on April 1, 1972. Thus, abortion in
India is legal, although it is allowed under certain specific conditions only as prescribed
under the MTP Act.
The question that arises is that despite there being a law that allows women to terminate a
pregnancy, are these provisions fulfilling the purpose of its enactment? Are the women out
there able to use these provisions and get an abortion? The answer to these questions lies
in various real-life instances of women who, due to some or other legal procedures, could
not get an abortion done. The Centre for Enquiry into Health and Allied Themes (CEHAT), a
Mumbai-based research institute, conducted research into this and interviewed women
from different regions to find out the prevalent scenarios relating to abortion. One such
woman shared her experience. She was stuck in an abusive marriage and found out that
she was 8 weeks pregnant with an unwanted pregnancy, so she wanted to go for an
abortion. However, the hospital staff insisted that she must get consent from her husband
and a no-objection certificate from the police. Surprisingly, the law concerning abortion
nowhere requires such permission, and sadly, this is not the story of just one woman but of
most of them.
Such scenarios point out the petty conditions of these women and how, even after the
enactment of laws for the termination of pregnancy, the state and the inefficient system
stand in the way of the rights of a woman. Despite there being a legal framework and a set
of rules and regulations, the present scenarios and the studies conducted by various
national and international institutes show that abortion is still a frantic and challenging
experience.
The Supreme Court in the case of Suchita Srivastava & Anr v. Chandigarh Administration
(2009) held that a woman has the right to make reproductive choices and that it comes
under the ambit of Article 21 of the Indian Constitution. The Court further opined that this
right to make reproductive choices includes both procreation and abstaining from
procreation. However, while considering the situation of a lady when she is pregnant, the
Court opined that such conditions are to be viewed in terms of the MTP Act, 1971, and that
the conditions mentioned in the Act are to be treated as reasonable restrictions.
The Apex Court in the case of Justice K. Puttaswamy v. Union of India and others (2017),
opined that a woman has the right to make choices relating to her reproductive health and
related matters. Emphasizing this, the Court stated that this is a constitutional right since it
relates to the right to privacy, dignity, and bodily integrity, which is covered under Article
21 of the Indian Constitution. However, despite the prevalent laws relating to abortion and
the judicial precedents, the present scenarios reflect the inefficiency of the authorities in
the proper implementation of these laws and precedents. Effectively implementing these
provisions and a right-based approach to the abortion laws is crucial so that they become
easy to access, thereby saving the lives of several women.
The termination of pregnancy was illegal in India before the 1970s, it was only after the
enactment of the MTP Act, 1971, that the medical termination of pregnancy was allowed,
although under certain specific conditions expressly mentioned in the Act. Apart from this,
the earliest legislation that contains provisions for abortion is the Indian Penal Code, 1860.
With the advancement of time and the development of judicial precedents, abortion is now
also considered a constitutional right guaranteed under Article 21 of the Constitution. Also,
various judicial decisions show that the right to deny forceful abortion has also been dealt
with under Article 14 of the Indian Constitution.
Let’s have an overview of the laws prevalent in India that deal with abortion.
Section 312 of the IPC states that whoever voluntarily causes miscarriage (spontaneous
abortion) shall be held guilty of the offence of causing miscarriage. The Section comes with
the exception that a person causing a miscarriage will not be held guilty if the act is done
to save the life of a woman who is pregnant. The above-said provision deals with two kinds
of miscarriage, namely, when miscarriage is caused by a woman bearing a child and when
a woman is quick with a child. The second situation is when the movement of the fetus can
be felt (mostly after 15-16 weeks of conception). In the case of the first kind of
miscarriage, the accused will be punished for a term which may extend up to three years
with a fine, and in the second situation, the imprisonment will be for a period which may
extend up to seven years with a fine. The provision also includes the woman herself, who is
responsible if she is the one who caused the miscarriage.
Section 313 of the IPC deals with the causing of miscarriage without the consent of the
woman. Under this Section, it is immaterial whether the pregnant woman was quick with a
child or not, the punishment will be for a period of 10 years, which may extend to
imprisonment for life with a fine.
Section 314 talks about the situation wherein the act of miscarriage causes the death of a
woman. It makes the person guilty of an offence who does any act with the intention of
causing miscarriage, which in turn results in the death of the woman. The person guilty of
the above-said offence is liable for punishment, which may extend up to 10 years along
with a fine. The provision further provides that if the act is done without the consent of the
woman, then the person behind the act shall be punished with imprisonment for either up
to 10 years or imprisonment for life. It also states that the knowledge of the offender that
his or her actions may cause the death of the pregnant woman is not an essential
ingredient to prove him guilty under this provision.
Section 315 of the IPC deals with the act done by a person to prevent the birth of a child
(preventing the child from being born alive/stillbirth) or the act done which leads to the
death of the child immediately after being born. Such an act is punishable with
imprisonment, which can extend up to 10 years with or without fault. The provision makes
an exception for the act done in good faith to save the life of the pregnant woman.
The next provision, i.e., Section 316, deals with the act amounting to culpable homicide. A
person who does any act under such circumstances to cause the death of the quick child
and thereby causes the death of the child will be held liable under this offence. The
provision provides for imprisonment, which may extend up to 10 years with a fine.
Constitutional provisions
Although no provision under the Indian Constitution expressly talks about abortion or
miscarriage, the country’s courts have time and again held that the right to abortion is
safeguarded under the Constitution of India. Article 21 of the Constitution states that no
person shall be deprived of his right to life and personal liberty, as interpreted by the Apex
Court and the High Courts in a plethora of judgments, including a woman’s right to
reproductive choices, i.e., to procreate and to abstain herself from procreating. As
discussed in the earlier paragraphs, two of these judgments that held that Article 21
includes a woman’s right to abortion are Suchita Srivastava & Anr v. Chandigarh
Administration (2009) and Justice K. Puttaswamy v. Union of India and others. (2017).
In pursuance to Article 14 of the Constitution, the Apex Court has held that forcible
sterilization or abortion of a mentally retarded person is a violation of the right to equality
(Suchita Srivastava case).
A medical termination bill was placed before the Lok Sabha and Rajya Sabha based on the
recommendations of the Shantilal committee. The bill was passed in Parliament in August
1971 and received presidential assent on 10 August 1971.
De nitions
Section 2 of the MTP Act, 1971 provides for definitions of terms, namely, ‘guardian’,
‘mentally ill person’, ‘minor’, and ‘registered medical practitioner’.
Termination of pregnancy
Section 3 of the Act talks about the specific conditions under which a woman can undergo
abortion by a registered medical practitioner.
Clause (1) of the Section starts with a non-obstante clause in relation to the Indian Penal
Code, thus having an overriding effect on the provisions pertaining to abortion or marriage
in the Code. It states that a registered medical practitioner will not be held guilty under the
IPC or any other law prevalent at that time if any pregnancy is terminated by him as per
the provisions of the MTP Act, 1971.
Clause (2) specifies the conditions under which the medical termination of pregnancy is
allowed by a registered medical practitioner. However, these provisions are subject to sub-
section 4 of Section 3. The termination of a pregnancy that does not exceed more than
twelve weeks is provided under Section 3(2)(a) of the Act, whereas the termination of a
pregnancy up to 20 weeks is dealt with under Clause (2)(b). It is important to note that for
termination of pregnancy up to 12 weeks, an opinion by one registered medical practitioner
that the same was done in good faith is necessary. In cases of termination up to 20 weeks,
the opinion of at least two registered medical practitioners is required.
The act done in good faith involves when there is a risk to the life of a pregnant woman, as
provided under Section 3(2)(b)(i). The second instance of good faith is enunciated under
Section 3(2)(b)(ii) of the MTP Act. It states that there is a substantial risk of any physical
or mental abnormality to the child if he is born (if such a pregnancy is not terminated). The
explanation I provided under this clause says that if a child is born out of rape, then such a
situation will be considered a grave injury to the mental health of the pregnant woman. The
II explanation provided under the Clause is that if there arises a situation in which a
married woman becomes pregnant due to failure of the contraceptive method, then the
anguish caused by such unwanted pregnancy will amount to grave injury to the mental
health of the woman.
Section 3(3) of the Act provides that to determine whether the continuation of the
pregnancy would involve a risk of injury to the woman or not, an account of her actual or
reasonably foreseeable future should be considered.
Section 5(1) provides for the condition that when the termination is immediately necessary,
then under such circumstances, provisions of Sections 4 and 3(2) will not apply. Section
5(2) prescribes the punishment for conducting a termination of pregnancy by anyone other
than a registered medical practitioner. It prescribes rigorous imprisonment, which shall not
be less than 2 years but can extend up to 7 years. A punishment for a period which shall
not be less than years of rigorous imprisonment but which may extend up to 7 years is
provided under Section 5(3) for terminating a pregnancy in a place other than the place
prescribed under Section 4. The owner of a place wherein such termination of pregnancy is
carried out, which violates the provision under Section 4, shall be punished with rigorous
imprisonment for a term which shall not be less than 2 years but which may extend to 7
years as per Section 5(4).
The validity of Explanation 2 of Section 3(2) of the Act is challenged on the premise that it
violates the provision of equality enshrined under Article 14 of the Constitution. The
aforesaid explanation clarifies its applicability only to married women and thus amounts to
hostile discrimination against single women out there. It fails to take into account the
object of terminating an unwanted pregnancy. In fact, the consequences of an unwanted
pregnancy in the case of unmarried women are even more grave than those of married
women.
The validity of Section 3(4) of the Act is challenged on the premise that it is violative of
Article 21 as it mandates the consent of a guardian in the cases of termination of
pregnancy of mentally ill persons and minors.
Section 5 of the Act provides for permission to terminate the pregnancy beyond the period
of 20 weeks, but only on the ground of an immediate risk to the life of the woman. Thus,
its validity was challenged, stating that it is violative of Articles 14 and 21 of the
Constitution. It was contended by the petitioners that the provision is arbitrary and
restricts a woman’s right to reproductive choices. It also states that it fails to consider
various health-related aspects that may be developed at later stages and that it also fails
to meet the tests of reasonableness and proportionality.
The Amendment of 2002 also inserted a new provision, i.e., Section 4, which lays down the
places wherein termination of pregnancy for the purposes of this Act may be carried out.
It also inserted sub-sections 5(2)-(4) and two explanations, which laid down punishments
for non-compliance with certain provisions of the Act and the meaning of the term ‘owner’
(explanation 1), along with an exception (explanation 2), respectively.
Rule 3B mentions the categories of women that are permitted to terminate their
pregnancies exceeding 24 weeks. The following categories of women are permitted;
minors;
mentally retarded women; a child who may have the risk of physical or mental
abnormalities if the pregnancy is allowed;
It further provided for a mandatory inquiry and investigation in the places where such
operations were carried out. This inquiry/ investigation was to be conducted by the Chief
Medical Officer (Rule 4). Apart from these provisions pertaining to approval of a place (Rule
5), cancellation or suspension of the approval certificate of the place (Rule 7), and the
provision of review by the owner of the suspension or cancellation order by the government
(Rule 8).
It further provides for the establishment and composition of a medical board under
Section 3(2C) of the Act. The board is to be constituted by the State or Central
Government, as the case may be. The board shall exercise the functions and powers
bestowed upon by the MTP Act or the rules formed under the Act.
Section 3(2B) was inserted, which states that the provision of the limit on termination of
pregnancy will not apply if the fetus is suffering from some substantial fetal
abnormalities, as advised by the medical board.
The composition of the medical board as per Section 3(2D) will be such that it consists
of a gynaecologist, paediatrician, radiologist, or sonologist; and such other members as
the government may by notification prescribe.
A new provision, i.e., Section 5A, was inserted, which makes it mandatory that the
registered medical practitioner not disclose the information of the woman who is
undergoing the abortion. The exception is also provided under the Section, which states
that the information can be provided to a person authorized under any law for the time
being in force, if necessary.
The medical boards were primarily established to check whether the pre-conditions
established under the Act were satisfied or not. However, several recent incidents show that
these boards are often seen interfering in issues of the viability of the fetus, the possibility
of corrective surgery, judging on social stigmas and taboos, moral policing, etc. Thus, in
certain cases, these boards have proven to be a hindrance to women wanting to terminate
their pregnancies.
The Act further provides the right to abortion only to certain women falling into the
categories mentioned under the Act. Thus, discriminating against other women who do not
fall under this category. It fails to have a right-based approach but rather has a restrictive
approach. The right to abortion is an intrinsic right of a woman, and thus, this Act infringes
the same and fails to provide complete autonomy to the women who choose to terminate
their pregnancy.
Mandatory ‘urine pregnancy test’ of the victim of sexual assault or rape at the time of
medical examination.
In case of a major victim, if found pregnant due to sexual assault or rape, expresses her
will to abort the pregnancy, she has to be produced before the medical board on the
same day by the investigating officer.
The Court further directed the government to ensure that the provisions of the MTP Act
are implemented effectively and that medical boards must be constituted in all
government hospitals to ensure the proper functioning of MTP centres.
In the case of a minor victim who is pregnant, must be produced before the medical
board, upon the consent given by her legal guardian for the same and for the abortion
as well.
Conclusion
Abortion in India was made legal after the enactment of the MTP Act, 1971. Before this, it
was a punishable offence under Sections 312-316 of the IPC. The 1971 Act allowed
termination of pregnancy under certain specific conditions specified under the Act.
Recognizing a woman’s right to reproductive choices is an essential part of a free country,
and thus, providing laws and regulations in favour of the same is very important. A
woman’s right to safe abortion is desirable, and it is of utmost importance that the state
must not interfere in the same, except in exceptional cases. The progressive approach
taken by India in issues relating to abortion is commendable since we have much more
liberal laws than most countries, yet we have miles to go. It is seen that in several
incidents, easy access to abortion has just been a privilege that women in urban areas
enjoy. Women in rural areas still do not have access to better facilities for the termination
of unwanted pregnancies. Even the new amendment fails to consider certain important
aspects of the laws that must be inserted or amended, as discussed in the article. Making
safe abortion easily accessible to every woman, irrespective of any factor like her marital
status, background, etc., is of paramount necessity.
FAQs
References
https://prsindia.org/billtrack/the-medical-termination-of-pregnancy-amendment-bill-
2020
https://www.jstor.org/stable/41885953
https://www.jstor.org/stable/43951024?seq=1&cid=pdf-
reference#references_tab_contents
https://www.jstor.org/stable/10.2307/26522175
https://reproductiverights.org/wp-content/uploads/2022/09/India-FACTSHEET-MTP-
Amendment-Act-9-22.pdf
https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-
abortion-safer-and-more-accessible
https://www.orfonline.org/expert-speak/amended-abortion-rights-in-india/
https://www.indiatoday.in/india/story/cabinet-approves-raising-upper-limit-abortions-
24-weeks-1641238-2020-01-29
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