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Critical analysis of Indian laws on Abortion

There are certain human and fundamental rights which have been granted to every citizen under the Indian Constitution and Article 21 is one the most important rights among all. Right to personal liberty is the most precious, sacrosanct, inalienable and fundamental of all the fundamental rights of citizen.

Article 211 of Indian Constitution enshrined one of the most precious fights in the form of life and personal liberty guaranteed under chapter III of Indian Constitution.

Right to abortion is a species of right to privacy, which is again proclaimed a continuance of the right to life under Article 21. Women living in any country regardless of whether they are established or underdeveloped, are vulnerable to unexpected pregnancy complications. Due to various unforeseen causes, the unwanted pregnancy could occur in that a woman should be entitled to terminate the pregnancy. however, women faces gender inequality with empowerment and lacks autonomy to choose to abort the unborn.

Apart from abortion being a fundamental right enriched under Article 21 of the Constitution, International Human Rights Law also provides abortion as a human right's guaranteed to women without any discrimination. The CEDAW Committee has explained that "Violations of women's sexual and reproductive health and rights, such as criminalisation of abortion, denial or delay of safe abortion and/or post-abortion care, and forced continuation of pregnancy, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.2

In India the law of abortion was first introduced under Section 3123of Indian Penal Code,1860 by which induced abortion was criminalised however after 1971 by passing of Medical termination of pregnancy Act, abortion rights were granted to certain women under certain circumstances which could be done by qualified and registered medical practitioners within a specific time frame.

Indian Laws On Abortion: A Critical Analysis

The Right to life and personal liberty guaranteed under Article 21 of Indian Constitution provides for protection of life and personal liberty of every individual which can not be curtailed except by the provision established by law.

Abortion refers to an end of pregnancy either by taking medication or by surgical procedures. It is a common health intervention which is safe when done by using procedures appropriate during pregnancy duration and by someone who possesses the required skills and expertise for the same. An abortion can be spontaneous which is termed as miscarriage or voluntary which is referred as induced abortion.

In India, Abortion is not illegal as the Indian law permits a women to prefer abortion in certain circumstances and for a certain timeframe on recommendation of medical practitioners under the Medical Termination of Pregnancy Act, 1971 however, the Indian Penal Code,1860 provides induced abortion as a criminal offence.

The right to abortion provided under the Medical Treatment of pregnancy Act is only for the categories of women mentioned under the MTP Rules which can be done by a registered medical practitioner The gestation period upper limit for terminating a pregnancy with 1 doctor's opinion has been extended from 12 weeks to 20 weeks, As the medical termination of pregnancy is accessible by certain categories of women mentioned in Rule 3B of MTP Rules4 and not to all women, hence the rate of unsafe abortion has increased in India and According to united nations population fund report, 67% of abortion in India are unsafe and around 8 women die because of unsafe abortion every day. 5

Unfortunately, the approach towards the enactment of a legal framework for abortion had less to do with women's rights and more to do with issues such as family planning and potential criminal cases against medical professionals and hence, there is a need to change the approach of the abortion law towards women being the primary stakeholders and not just the incidental beneficiaries.

As the law permits abortion for certain categories of women and hence the rest of female population who become pregnant in normal circumstances either married or not with consensual intercourse and not willing to continue with their pregnancy are left with no choice rather to go for unsafe abortion by taking medication and hence, the law shall have a liberal with broader application.

The decision of abortion is on the doctor that whether he thinks if abortion is for the women or not whereas the women shall have the right to choose if she is willing to continue with abortion or pregnancy or not, Hence the existing laws with respect to abortion in India is doctor centric and not adequately addressing the issues of the society and there is a lack of reproductive autonomy which needs to be addressed.

Conclusion And Suggestions
It is evident that there are certain limitations and restrictions that can pose a challenge to women's reproductive rights. In conclusion, it is essential to establish a more comprehensive and inclusive approach to abortion that considers women's autonomy and health and Indian laws on abortion must prioritize women's bodily autonomy, overall health, and well-being.

The government must ensure the availability, accessibility, and affordability of safe and legal abortion services, which will help prevent maternal morbidity and mortality, promote gender equality, and empower women.

Following are some suggestions in order to improve the existing law:

  • Simplify the approval process:
    The current law requires women to get approval from multiple authorities before getting an abortion, which can be time-consuming and stressful. Therefore, it is necessary to simplify the approval process, making it more accessible and efficient.
  • Increase accessibility:
    Women in rural areas face several challenges when trying to access safe and legal abortion services. The government should focus on improving the availability of abortion services, particularly in remote and underserved areas.
  • Raise awareness:
    Many women are unaware of their legal right to an abortion, and this lack of knowledge can lead to unsafe abortions. The government should intensify its efforts to raise awareness about the importance of safe and legal abortion services.
  • Address social stigma:
    Abortion is still stigmatized in India, which can deter women from seeking medical assistance. It is necessary to address the social stigma associated with abortion and promote a positive attitude towards women's reproductive rights.
  1. Right to life and personal liberty: No person shall be deprived of his life and personal liberty except according to procedure established by law.
  2. rights last visited on 18th November,2022 at 6:13 p.m.
  3. Whoever causes a women carrying child a miscarriage shall be punished with imprisonment extending to 3 years or fine or both.
  4. The Medical Termination of Pregnancy Rules,2003
  5. last visited on October 30th at 6:05 P.m.

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