Author: Aarushi Chawla
Vivekananda Institute of Professional Studies , Delhi
Human rights are those rights that should be available to every individual without any discrimination of any sort and the most important of them all is the ‘right to life’. Then there is the issue of the right to abortion. The right to abortion is a conflicting right between right to life of the prospective child and the right to abort. The abortion laws have a 50-year old long history in India. Simply, abortion refers to a procedure at any point during human pregnancy. It is indeed legal in India but backed by a lot of criticism and complications.
The essay aims at the discussion of the legality of the current abortions laws along with their historical touch. It also analyses various judgments which are an outcome of these stringent laws. Despite these archaic laws, the judiciary has also tried to provide with a liberal approach to woman’s reproductive right.
The debate of abortion laws started from the landmark case of US Supreme Court in Roe v Wade. This case overturned almost all state laws restricting abortion and established that laws against abortion are an infringement of privacy of an individual. Deliberating upon the concept, it familiarises us about the penal provisions enriched in the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1971 that imposes criminal liability upon women as well as the abortionist. The context for the same can be found in Section 312 of the Indian penal Code, 1860 that talks of punishment imposed on the person “causing miscarriage to the woman.” With the object of protecting doctors and liberalizing abortions in India, the Medical Termination of Pregnancy Act, 1971 was passed in the Parliament. Further, several amendments took place in the year 2002 and 2003. Currently, the Medical Termination Amendment Bill, 2020 is pending in the parliament to form a revised Act and if accepted may turn out to be a milestone for the women’s rights.
As discussed above, the abortion law in India has a long history starting from the British era when the Indian Penal Code, 1860 was enacted. The risk to the life of a woman due to unsafe pregnancy and unintended pregnancies continued to be an issue. With this aspect, nearly in 1957, the Mudailar committee reported on the problems related to illegal abortion in India. Further on, in 1964 the Shantilal Shah Committee was constituted to study the problem. After analysis of a vast expanse of statistical data available at that time, the committee issued its report on December 30, 1966. Based on the report, the Medical Termination of Pregnancy Act (MTP), 1971 was passed and the abortion laws in India stood liberalized. Looking at the terminology used in the act that is “medical termination of pregnancy” instead of “abortion” states an obvious reason for its ease to be passed in the parliament as abortion is linked to the social myths in a country like India.
LAWS RELATED TO ABORTION AND THE RIGHTS OF WOMEN
Before briefly discussing the laws related to abortion it is important to note that Article 21 of the Constitution of India guarantees woman, a reproductive right that comes under her liberty (Re Justice K S Puttaswamy v Union of India, (2017) 10 SCC 1). The question of women’s right to terminate or not to terminate pregnancy came into question in Suchitra Srivastava v. Chandigarh Administration (2009) 9 SCC 1, where the Court held that reproductive choice of women is subject to Section 3 of the MTP Act,1971.
The Act (MTP Act, 1971 is referred to as ‘the act’) is an act to liberalize abortion but does not necessarily encompass a fundamental right to induced abortion. Its Preamble states that it is an act to terminate “certain pregnancies” by “registered medical practitioner.
The act starts with the clause “Notwithstanding anything contained in the Indian Penal Code” suggests that the aim of the act is more at the protection of doctors rather than legalizing abortions.
The grounds available for abortion (Section 3 of the act):
● If pregnancy leads to “grave injury” to the physical or mental health of the woman
● Where there exists a substantial risk or abnormalities if the child is born
It is to be noted, under the act that “rape (not including marital rape)” is construed as a grave injury and is a ground to abort.
Further, termination of pregnancy is permissible up to 12 weeks (requiring certification of a registered medical practitioner) and from 12 to 20 weeks (opinion of two registered medical practitioners). Subject to the above the mentioned limits, the woman is required to approach the
High Court or Supreme Court.
Also, the failure of a contraceptive measure used by a “married couple” is a ground to abort.
Section 3(4) of the Act also provides that pregnancy cannot be terminated except by the consent of a pregnant woman. The only exception to this rule is in case of a minor and mentally ill where the guardian consents’ to such a decision.
PROBLEMS WITH THE ACT
With the abortion being legalized a long back in India, still 10 women die every year due to unsafe abortions, making this issue as the third largest cause of maternal deaths in the country.
● The act mentions that in the second trimester the termination of pregnancy requires the opinion of two registered medical practitioners but what about the rural areas where even finding one seems rare.
● Though the act is a step towards gender equality, what about the inalienable right of women to control and protect their body and take decisions independently.
● Such government intervention provokes women to proceed towards illegal abortions which are in every way harmful for the health of the prospective child as well as the mother.
● Moreover, discrimination and lack of protection provided to the unmarried woman with respect to the failure of the use of contraceptive measures.
ARCHAIC ABORTION LAWS AND COURTS
Back in 2008, a couple named Harsh and Niketa Mehta came to doors of Bombay High Court to abort their 26-week old foetus which was diagnosed with a congenital heart defect. But their plea was struck down on expert advice. Soon Niketa suffered from a miscarriage and thereby lost the foetus. (Nikhil Datar v Union of India, (2008) W.P. (L) No 1816)
In Indu Devi v State of Bihar & Ors W.P. 5286/2017, the Patna High Court denied an abortion to a 26-week old foetus to an HIV positive rape victim justifying its decision on the ground that it was the responsibility of the court to keep the child alive.
Such cases have always raised eyebrows and with the advancement in technology when foetal abnormalities could be detected even after 20 weeks, hence the law requires amendment and then there comes the Amendment Bill, 2020.
IS THE MTP AMENDMENT BILL, 2020 IN THE RIGHT DIRECTION?
● To curb the issues as stated in the above case. The bill increases the upper gestational limit and also pregnancy is permissible above 24 weeks for “specific categories” mainly serving as a protection for rape survivors, minors and foetus abnormalities or as in the opinion of Central Government.
● The bill also replaces the word “married couple” with the word “woman” which states that failure of the use of contraceptive measure by an unmarried woman will be a ground to abort.
● Insertion of privacy clause concerning the disclosure of particulars of the woman whose pregnancy has been terminated serves a landmark change.
The bill seeks that in case the pregnancy exceeds 24 weeks, a medical board will be set up in respective states/UTs which actually seems impractical. Even in urban areas where access to basic healthcare is restricted, how can one expect such a provision to be executed? With respect to privacy clause, it is to be noted that it doesn’t apply to minors. The delay in termination is not addressed by the act as the women are still subject to multiple examinations by the medical board and at times denial of services. Despite, all these changes what lacks in the law is the full autonomy of reproductive choice to a woman.
SOCIETY: A REALITY CHECK
The reason why the abortion laws took long to pass in India is society. Firstly, women don’t file sexual assault cases and if they are impregnated it leads to more embarrassment and humiliation by the society. And moreover, delay in considering writ petitions and denial of abortions is a major consideration. The courts fail to take into consideration the harm a full-term pregnancy could cause to a minor’s body.
Secondly, women are inflicted to verbal attacks and insults which causes a deep impact on the psyche of such women.
It is actually a sad reality that the women citizens of the first world countries continue to struggle in getting the basic human rights that are desirable by every individual.
A PROGRESSIVE STEP
In the case of Ms X v Union of India & Ors., W.P.(C) 593/2016, the Apex Court permitted abortion over 20 weeks taking the exception as under Section 5 of the Act i.e. to save the life of a pregnant woman. This case is no doubt a crucial victory but it would have been better if such stringent provisions are amended and such a woman doesn’t have to fight for their rights and their bodies.
A significant judgment was delivered by the Rajasthan High court in June 2020 (State of Rajasthan & Ors. v State & Anr, W.P. 1344/2014). In the present case, a minor was assaulted and she conceived and somehow her pregnancy exceeded twenty weeks. The High Court (single judge) after the opinion of the medical board rejected her plea on the ground that the right to life of the prospective child must be given a higher footing. By the time an appeal was filed and the court overturned the single judge’s decision, the girl had already delivered the baby. But the notings of the court, in this case, could serve as a step forward.
● The Court explicitly held the ‘right to avoid as a fundamental right’.
● State Government was provided with guidelines for timely application of such pleas and the victims of rape who are left impregnated shall have a right to reproductive choice.
The gestational limit of up to 20 weeks has always been disputed and Punjab and Haryana High Court have decided to look into the matter. The Court said if the deformity occurs after 20 weeks then the woman is bound to lose her life. The Act provides for abortion after 20 weeks “only when it’s crucial to saving the life of a pregnant woman.” Looking at the aspect closely, only well off couples can take note of this provision and others end up losing their life or great risk to health of the child as well as the woman.
The abortion law in India is backed by social stigmas and state intervention. The government and State intervention should be limited to providing a safe procedure for prevention of woman from unsafe and illegal abortions. But the law lacks woman’s right or the personal liberty over her womb, her child, her body and her dignity. Understandably, the opinion of the registered medical practitioner is essential but what remains is it should “not only be the thing to be essential.” India’s history with respect to the female foetus may be the intention of the legislature in forming such a stringent rule. But the balance should always be made between social and personal interests of the people to keep one country at peace and satisfied along with granting the right to equality to all folks.
The reproductive laws should rule around maternal care and motherhood instead of childbearing. Thus, to conclude the need of the hour is not the complete laissez-faire or the state intervention, we need a law that permits abortion to a woman who wants it and also prohibiting sex-specific abortions.
● Abortion laws in India: A Review of court cases, https://www.ipasdevelopmentfoundation.org/resourceFiles/48201803143858.pdf
● A critical analysis of abortion laws in India, https://blog.ipleaders.in/critiquing-indias-abortion-laws/
● The outdated abortion law in India needs amendment as it fails to support women, https://health.economictimes.indiatimes.com/health-files/the-outdated-abortion-law-in-india-needs-amendment-as-it-fails-to-support-women/3911
● Explained changes in 1971 abortion law and why India feels it necessary, https://indianexpress.com/article/explained/explained-1971-abortion-law-changes-india-6244999/
● Abortion Law, Policy and Services In India: A critical review, https://www.tandfonline.com/doi/full/10.1016/S0968-8080(04)24017-4
● Seeking a more progressive abortion law, https://www.thehindu.com/opinion/op-ed/seeking-a-more-progressive-abortion-law/article30777394.ece
● MTP Amendment Bill,2014: towards re-imagining abortion care, https://ijme.in/articles/mtp-amendment-bill-2014-towards-re-imagining-abortion-care/?galley=html