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Constitutionality of abortion laws in India

The right to control her body, fertility and motherhood choices should be that of a woman alone and nobody else can dictate it to her .[1]

Abortion has always been a controversial issue since ancient times. In the past, abortion was considered as a taboo in India. In modern times, the famous propagator of non-violence, Mahatma Gandhi quoted, It seems to me clear as daylight that abortion would be a crime . But with changing times, the ideology of people has become more liberal and subsequently many laws have developed, legalising abortion in India.

Abortion under the Indian Penal Code, 1860:

Sections 312 to 316 of the IPC 1860 have made induced abortions a criminal offence, except in cases to save the life of the mother. It has used the expression causing miscarriage to refer to abortion. Thus, according to these sections any person voluntarily causing miscarriage will be penalized by imprisonment for three years and/or payment of fine. The punishment may even extend to a period of seven years coupled with payment of fine in cases where the woman was quick with the child (foetus's motion is felt by mother).[2]

Abortion under the MTP Act, 1971:

By passing the Medical Termination of Pregnancy Act, 1971, the Indian Parliament legalised abortion in India. As per Section 3(2) of the Act, abortion is permitted upto 12 weeks of pregnancy. Between 12 and 20 weeks, pregnancy can be terminated if not less two registered medical practitioners are of the opinion that the termination is in good faith of the mother and child. However, post 20 weeks, termination of pregnancy is not permitted.

The right of the woman vis-à-vis the right of the unborn child:

Article 1 and 3 of the Universal Declaration of Human Rights[3] states that all humans are born free and are equals in rights and dignity. All have the right to life, liberty and security.

Article 21 of the Indian Constitution states that:

No person shall be deprived of his right to life and personal liberty except according to procedure established by law. The Supreme Court has given wide amplitude to the expression Right to Life . This right covers right to sleep, right to live with dignity, right to privacy, right to move freely, right to health, etc. However, the predicament that arises is whether Right to life includes the right to abortion. Another dilemma in the arena of abortion laws is the right of the mother to abort vis-à-vis the right of the unborn child to live.

Woman's Right to Abortion:

The Supreme Court in the landmark case of Suchita Srivastava[4] held that Article 21 of the Indian Constitution which guarantees right to life and personal liberty has a broader dimension which extends to liberty of a woman to make reproductive choices. These rights are the components of the woman s right to privacy, personal liberty, dignity and bodily integrity as enshrined by Article 21.

In the recent judgement of the Supreme Court by a nine-judge bench in Justice K. S. Puttaswamy case[5], which unanimously affirmed right to privacy as a fundamental right under the Constitution, reiterated Suchita Srivastava s case and held that the woman s right to abortion falls within the purview of right to privacy and hence all her reproductive rights should be ensured by the state. Thus, it has been established by the courts that the woman s right to abortion is a fundamental right.

Right of the unborn child

Article 21 of the Indian Constitution guarantees Right to life only to a person. Now the main question which arises is whether the unborn child is considered as a person or not. Now, the child s status in the mother s womb is of foetus until birth.

Section 2(bc) of the PCPNDT Act[6] has defined the term foetus as a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding anytime in which its development has been suspended) and ending at the birth . The definition does not include the word person . In the most famous US case - Roe v. Wade[7], the Supreme Court has observed that the foetus is not alive till after the period of quickening .

Dworkin says that the foetus has no interest before the third trimester.[8] Scientists have said that the brain sufficiently develops to feel pain approximately after the twenty sixth week, thus the foetus does not feel pain before that. Hence, whether abortion is against the interest of the foetus or not depends on whether the foetus itself has any interests. A thing that is not alive cannot have interests. It is only after the third trimester that the foetus may have interests as it may live on its own.[9]

In De Martell v. Merton and Sutton HA,[10] the English Court held that if an injury is done to an unborn child, no legal duty is broken as it is not the subject of legal duty since it does not exist. In law and logic, no harm can be caused to someone before its existence. Thus, we conclude that priority must be given to the right of the woman, over the rights of her unborn child, on grounds of existence and interests.

Constitutionality of the MTP Act:

The constitutionality of the MTP Act has been challenged regularly on various grounds. In a pending case before the supreme court - Swati Agarwal & Ors. v. Union of India[11], The Petitioners filed a PIL challenging the validity of Section 3(2), 3(4) and 5 of the MTP Act as violative of Article 14 and 21 of the Indian Constitution. Section 3(2), 3(4)(a) and section 5 was challenged as violative of Article 21.

The petitioners argue that section 3(2) curtails the personal liberty and privacy of the mother and also fails the test of reasonability and proportionality as it is impossible to detect the harm that may be caused to mental and physical health of the woman or the abnormalities to the foetus within 20 weeks of pregnancy, especially considering the lack of robust health infrastructure in many areas of the country.

Section 3(4)(a) was challenged as it gives the guardian complete control over the woman s reproductive choice. Section 5 is considered arbitrary and disproportional under Article 21 on the grounds that termination of pregnancy can t be denied on the grounds that it has completed the gestation period of 20 weeks. The explanation to Section 3(2)(b) is discriminatory for unmarried or single women as it focuses only on married woman, thus treating equals unequally. The petitioners also contend that with the advent of science and technology, foetal abnormalities can be diagnosed at later stages and hence pregnancy can be terminated safely then too.

The draft of the MTP (Amendment) Bill 2020 which increases the upper limit for legal abortions to 24 weeks in special cases, has been approved by the Union Cabinet. In the upcoming budget session of the Parliament, the bill is likely to be tabled. This draft bill has been approved by the Union Cabinet. The amendment also proposes that in cases of substantial foetal abnormalities diagnosed by medical board, the upper gestation limit will not apply.

Inspite of being a moral issue, abortion is more of a constitutional issue. The constitution has enshrined women with absolute right to choose whatever she wants to do with her body. No person can dictate to her what she should do in matters pertaining to reproduction. Interfering with her reproductive choices is merely breach and invasion of her privacy and personal liberty. Even though the MTP Act has given freedom to women in abortion-related matters, her freedom is still restricted and limited to the shortcomings of the Act as seen above.

Abortion laws are not completely liberal in India. Development is needed to suit the current requirements inorder to protect the rights of the women in the county. The unconstitutional provisions infringing the rights guaranteed by the constitution to women in the country have to be done away with. The MTP (Amendment) Bill 2020 is a step towards the right direction.

  1. High Court on its own motion v. The state of Maharashtra, Suo Motu PIL No. 1 of 2016; judgement dated 20th September 2016.
  2. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860
  3. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948.
  4. Suchita Srivastava & Another v. Chandigarh Administration (2009) 11 S.C.C. 409
  5. Justice K. S. Puttaswamy (Retd) & Anrs. v. Union of India and Ors., (2017) 10 S.C.C. 1
  6. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibiton of Sex Selection) Act, 1994
  7. Roe v. Wade , 410 U.S. 113 (1973)
  8. Ronald Dworkin, Freedom s Law: The moral reading of the American constitution, 90 (Oxford University Press ed., 1999)
  9. Sai Abhipsa Gochhayat, Understanding of Right to Abortion under Indian Constitution,
  10. De Martell v. Merton and Sutton Health Authority (1992) 2 FCR 832
  11. Swati Agarwal & Ors. (1-7-2019) W.P. (C) 825/2019 Supreme Court

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