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MAKAM GANESH KUMAR[1]
Abstract
Reproductive rights are critical
towards the realization of a broad range of human rights.
The Indian constitution recognises an individual's right to life, health, and personal liberty
(including sexual, reproductive, and decisional
autonomy) as well as privacy and equality. The Supreme Court has recognized
reproductive rights as both a
component of the right to health and a component of personal liberty under
Article 21[2], defining
them as the right to "access a
range of reproductive health information, goods, facilities, and services that
enable individuals to make informed,
free, and responsible reproductive behaviour decisions". It is under this
context that I must aim to analyse
how abortion rights in India have been the topic of numerous
debates and controversies for several decades.
Introduction
In India, abortion
refers to the purposeful medical
termination of pregnancy, which can be performed in two ways:
medically or surgically. The term abortion is not
defined by any law.
A woman who is pregnant for less than ten weeks is eligible
for a medical abortion. This technique involves
using tablets and drugs to
terminate a pregnancy. It is a non-surgical procedure that must be performed
under the guidance of a doctor.
In-Surgical Abortion
If a woman
desires an abortion
after ten weeks of gestation, a surgical abortion
can be performed.
India is among the many nations whose
abortion laws have been liberalised to permit abortions for a variety of therapeutic, humanitarian, and social
reasons. The Supreme Court has ruled firmly that Article 21 covers a person's reproductive rights. Various abortion
laws in India govern the legality or illegality of abortion, in the Indian Penal Code abortions are addressed in Sections 312 through 316 and the Medical Termination of Pregnancy Act where addresses the provisions of
India's abortion laws. The act allows for the termination of pregnancies within the first 12 weeks with the consent
of a physician. For pregnancy termination between 12 and 20 weeks, the consent of two medical professionals is required.
Article
21 of the Indian
Constitution
Article 21 of the Indian Constitution provides
that no one's right to life or personal liberty
shall be violated
except in accordance with
the procedure established by law. The Supreme Court has firmly declared that
Article 21 protects a person's "reproductive
rights” and has elevated the expression "Right to Life" to a new
level of significance. This right
encompasses the right to sleep, the right to a dignified life, the right to
privacy, the right to movement, and
the right to health, among other things. It is in this scenario that the
question of whether the right to life encompasses the right to abortion arises.
Another significant point of contention in the abortion
debate is the mother's right to terminate
pregnancy vs the unborn child's
right to life. Here, the right of an ‘unborn
child’ is a salient
moot point as only a ‘person’ is guaranteed the Right to Life under
Article 21 of the Indian
Constitution. Since a child
is regarded as a foetus in the mother’s womb until it is born, a major issue
also revolves around if an unborn child is a person.
Medical Termination of Pregnancy Act 1971
Medical Termination of Pregnancy Act 1971
was passed under the Indian Penal Code to provide for the termination of pregnancies under
a registered medical
practitioner[3] (RMP) on certain grounds.
The Act prescribes the mandatory approval
of one medical practitioner for the termination of pregnancy until the first
12 weeks along
with the consent of two medical practitioners for termination of
pregnancy for a period between 12-20 weeks. Under
the MTP Act, Abortion is permitted only up to 20 weeks of pregnancy. This
provision was incorporated with the aim to eliminate gender prediction tests and sex-selective abortions. Under this Act, a pregnancy may be terminated only under certain
circumstances wherein it poses a grave risk to the life or towards the physical
or mental health of the mother, in cases of foetal abnormalities, failure of birth control measures
or for cases wherein pregnancy occurs as a consequence of rape.
Beyond 20 weeks
Under certain circumstances, the High Courts
have the authority under Article 226[4] of the Indian Constitution to authorize termination for pregnancies
beyond 20 weeks. Certain circumstances exist in which fatal defects or threats
to the mother's life become
apparent after 20 weeks of pregnancy. In such instances, the MTP Act requires the mother seeking
an abortion to obtain prior approval from the court.
However, there have also been numerous instances in which Courts have rendered
a negative decision notwithstanding the family's desire for abortion. Further, courts have confirmed that
abortion requires just the agreement of an adult woman. Husbands, partners, male
siblings, fathers, and in-laws do
not have the right to consent to or refuse abortion.
The Medical Termination of Amendment Bill 2020
The Medical Termination of Pregnancy
(Amendment) Bill aims to increase women's access to safe and legal abortion
services for therapeutic, eugenic, humanitarian, and societal reasons
It was introduced in the Lok Sabha
in 2020 with amendments
proposed to include the following provisions:
—
Proposed the requirement of the approval of only one
qualified medical practitioner for terminating
pregnancies up to 20 weeks along with the approval
of two registered medical practitioners for termination of pregnancies
between 20-24 weeks of gestation.
—
Seeks to extend the maximum gestation period from 20
weeks to 24 weeks, especially for special groups of women, which include vulnerable women such as rape
survivors, incest victims, differently abled
women, children etc.
—
Seeks to waive
off the maximum
gestation period in cases of significant prenatal
abnormalities diagnosed by the Medical Board[5].
—
Confidentiality is to be maintained with respect to
the details of the woman seeking termination of pregnancy. Such a person’s name or other relevant information shall not be disclosed to anyone except
as authorised by law.
Landmark Cases & Judgements
The revisions proposed in the MTP Amendment
Bill were made in response to various Court petitions seeking authority
to terminate pregnancies at a gestational period greater than the currently permissible maximum period
owing to several factors like foetal abnormalities, sexual assault
against women etc. In the landmark cases of Suchita Srivastava v. Chandigarh Administration[6] as well as Devika Biswas v. Union of India[7], the
Supreme Court has
unequivocally and emphatically declared that a woman's reproductive autonomy is
a basic right to privacy and that the
decision about whether or not to have a child should be made solely by her,
with no interference from the
government. Further, in the case of XYZ
v. Union of India[8], it was held that the term 'life' in Section 5 of the MTP Act[9] ought to be interpreted broadly following the scheme of Article 21 of the Indian
Constitution, considering both the physical
discomfort and mental trauma associated with an unwanted
or forced pregnancy.
The Supreme Court’s views
on pregnancies exceeding 20 weeks involving foetuses with medical
deformities can be perceived from its judgement in Mrs X vs. Union of India[10]. In
the aforementioned case, the petitioner had approached
the court under Article 32 for medical termination of her pregnancy owing to
the elevated risk of intrauterine
foetal death. The Supreme Court, in this case, ruled in favour of the
petitioner enabling her to terminate
her 22-week-old pregnancy post-due consultation with a medical board
constituted by the court which had
affirmed that continuation of such a pregnancy may jeopardise the physical and
mental conditions of the woman. The Court determined that "a woman's
right to make reproductive choices
is likewise a component of her 'personal liberty under Article
21 of the Constitution," and that her right to bodily integrity entitles her to terminate her pregnancy.
Further, The Punjab and Haryana High court in the case of Dr Mangla
Dogra & Others v. Anil Kumar Malhotra & Others[11] upheld the inalienable right and agency
of a woman to seek an abortion
on her own irrespective of the consent
of her husband. The Court considers the consent form contained in the MTP Act and finds
that the Act "neither expressly nor implicitly allows for the express or implied permission of the spouse.” It is pertinent
to note that several judgements of the Supreme
Court permitted the termination of pregnancies based
on humanitarian grounds.
In the case of Murugan Nayakkar
vs. Union of India & Ors[12], the Supreme
Court allowed the termination of a 13-year-old rape victim's 32-week
pregnancy, ruling that she be allowed to terminate her pregnancy owing
to her age, trauma, and the agony that she is undergoing. A similar application of law can be observed
in Indu Devi vs The State of Bihar & Ors wherein the Patna High Court permitted
the petitioner, a 24-week pregnant
rape survivor, to obtain medical
termination of pregnancy. The court delivered its judgement duly
taking note of the fact that the petitioner had chosen to proceed with the
abortion at the 13-week mark of her
pregnancy which however was
hampered by bureaucratic and legal delays.
In Minor
R Thr Mother H v State of NCT of Delhi & Anr,[16] The
Delhi High Court has issued instructions to be
followed by investigating officials in cases when the pregnancy of a sexual
assault victim exceeds 24 weeks. Justice
Swarana Kanta Sharma remarked that a board's
delay in issuing
orders for medical
examinations of victims
endangers the victim's
life. In a comprehensive order, the court stated that a Urine Pregnancy Test will be required during
the medical evaluation of a victim
of sexual assault.
Justice Sharma ordered
that if the victim is determined
to be pregnant as a result of sexual assault,
and if she is a minor who consents and expresses a wish for MTP, the investigating officer would ensure that she is brought before the medical
board on the same day.
The Principles Envisioned in KS Puttaswamy's Judgment
In India, there is a lot of disagreement between
pro-choice and pro-life
views on abortion
laws. Pro-choice views
include a woman's right to choose whether to have an abortion, as well
as the state's duty to protect every life. In
this case, the Constitution-Bench decision of the Supreme Court in KS Puttaswamy v UOI[17] should be looked at very carefully. A lot of people have been talking about this
decision in the legal world, and it has opened a whole new field of thinking about reproductive rights and
women's autonomy in India, which the Act does not cover.
In this case, the Supreme Court said that
women have a constitutional right to make their own reproductive choices. They also said that the right to
"abstain from procreating" was in line with the right to privacy,
liberty, bodily autonomy, and
dignity. It was J. Chandrachud who explained how access to contraceptive
options and abortion important part
of due process is. He also said that volitional autonomy for ending a pregnancy
is a part of privacy. Privacy is a
place where people can be alone, but they also have a lot of freedom. He said
that an "unreasonable" restriction cannot be put on that freedom, and so it can only be allowed
if it meets the constitutional standard of reasonableness.
Despite this, a major problem
with this constitutional right is the poor state of the health infrastructure
and a low literacy rate.
People in India have abortions outside the hospital
and other healthcare places, according to a report.
These can be both illegal and dangerous, and the high rate of maternal
deaths is proof of that, This is not. People
who are pro-choice cannot say that because of infrastructural problems
and a low literacy rate, the Constitution does not say that they cannot have their rights taken away. That is why, it is said, most women in India are forced to compromise their reproductive health
because there are not enough health infrastructure and people are not told about the law It is nothing
more than a tethered deal with a limited amount
of free will. It's nothing
more than a tethered
deal with a limited amount of free
will.
Conclusion
Reproductive rights are a constantly evolving
subject in India,
and we believe that women should be able to make decisions about their bodies,
especially when it comes to having and carrying a pregnancy all the way to full term. This is especially true for women. To be free and equal, a woman must be in control of her body and what happens to it
and inside of it.
It is only allowed in India if there is a
very good chance that the child will be physically or mentally deformed when it is born, or it affects
the life of the woman. This is called "conditional right." Despite 50 years of the MTP act,
the right of a woman to make reproductive choices remains a taboo and the most
contentious issue in India and
throughout the world. Although the half-decade-old law is the most liberal in
the world half a decade ago. Despite numerous
court decisions stating
that a woman's right to make reproductive choices is a dimension of her 'personal liberty' under Article 21 of
the Constitution, reproductive rights are used selectively and are subject to the court's discretion, which is frequently based solely on the medical
board's opinion. One of the most concerning facts is that these women must also endure a lengthy and
exhausting process in which they are examined by medical boards despite having consulted their own providers. The
entire procedure exacerbates women's trauma
and is a violation of their rights.
There are numerous
examples and cases
where requests for abortion termination have been denied, leaving women with no other option but to resort
to unsafe abortion methods. The woman's decision
to continue the pregnancy to term or not should be given complete and
unconditional priority, and the same should
be her prerogative and sole decision and not of other external
decisions for “Abortion
is part of being a mother and of caring for children
because part of caring for children is knowing when it’s not a good idea to bring them
into the world.”[18]
References
—
Rosenberg, Gerald N., et al. A Qualified Hope. Cambridge University Press, 2019, pp. 319–44.
—
Baxi, Upendra. Abortion and the law in India. Journal
of the Indian law Institute. 1986-87. Alice Jacob, New Delhi.
—
Adarsh Kumar. Medical
Termination of Pregnancy
(Amendment) Act 2020: A Legislation of Feterred Autonomy, Manupatra
—
Sai Abhipsa Gochhayat. Understanding of the Right to Abortion under
the Indian Constitution. Manupatra.
—
India's amended law makes abortion
safer and more accessible. World Health Organization 2021.
[1] Makam Ganesh Kumar – LLB 3yr, OP. Jindal
Global University.
[2]
Article 21 in The Constitution of India 1949 - Protection of life and personal
liberty No person shall be deprived of his life or personal liberty except
according to procedure established by law
[3]
Registered medical practitioner means a registered medical practitioner within
the meaning of the Medical
Practice Act 1994
[4] Article 226 in The Constitution of India 1949 - Power of High Courts to issue certain
writs
1. Notwithstanding
anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs,
including writs in the nature
of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
2. The power
conferred by clause [ 1] to issue directions, orders or writs to any Government,
authority or person may also be exercised
by any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person
is not within those territories
3. Where any
party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating
to, a petition under clause
[ 1], without
a.
furnishing to such party copies
of such petition and all documents in support of the plea for such interim order; and
b. giving such party an opportunity of being heard, makes an application to the High Court for the vacation
of such order and furnishes
a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court
shall dispose of the application within a period
of two weeks from the date on which it is received
or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is
closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the interim
order shall, on the expiry
of that period, or, as the case may be, the expiry
of the aid next day, stand vacated
4. The power
conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause
[ 2] of Article 32
[5] A
body of medical experts responsible for the examination of military personnel,
the maintenance of public health, or the regulation of medical practitioners.
[6]
UNICEF India, https://www.unicef.org/india/what-we-do/maternal-health (last visited Apr. 7, 2021).
[9] Section 5 in The Medical Termination of Pregnancy Act, 1971
- Sections 3 and 4 when not to apply.
-
1. The provisions of section 4, and so much of the provisions of sub-section [2] of section
3 as relate to the length of the pregnancy
and the opinion of not less than two registered medical practitioners,
shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed
in good faith,
that the termination of such pregnancy is immediately necessary
to save the life of the pregnant
woman.
2.
Notwithstanding anything contained in the Indian Penal
Code [45 of 1860], the termination of pregnancy by a person who is not a registered medical practitioner
shall be an offence punishable with rigorous imprisonment for a term which
shall not be less than two years,
but which may extend to seven years under that Code, and that Code shall, to this extent,
stand modified.
3. Whoever
terminates any pregnancy in a place other than that mentioned in section 4,
shall be punishable with rigorous imprisonment for a term which shall not be less than two years,
but which may extend to seven years.
4. Any person
being owner of a place which is not approved under clause [b] of section 4
shall be punishable with rigorous imprisonment for a term which shall not be less than two years,
but which may extend to seven years.
Explanation
1.-For the purposes of this section, the expression "owner" in
relation to a place means any person who is the administrative head or otherwise responsible for the working or
maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.
Explanation 2.-For
the purposes of this section,
so much of the provisions of clause [d] of section
2 as relate to the possession, by registered medical
practitioner, of experience or training in gynaecology and obstetrics shall not apply.]
[14] Section 3(2) (a)
in The Medical Termination of Pregnancy Act, 1971
b) where the length of the pregnancy
exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion,
formed in good faith, that-
I.
the continuance of the pregnancy
would involve a risk to the life of the pregnant woman or of grave injury
to her physical or mental
health; or
II.
there is a substantial risk that if the child were born, it would suffer from such physical
or mental abnormalities as to be seriously handicapped.
Explanation
1.-Where any pregnancy is alleged by the pregnant woman to have been caused by
rape, the anguish caused by such pregnancy shall be presumed
to constitute a grave injury
to the mental health of the pregnant
woman.
Explanation
2.-Where any pregnancy occurs as a result of failure of any device or method
used by any married woman or her husband for
the purpose of limiting the number of children, the anguish caused by such
unwanted pregnancy may be presumed to constitute a grave injury to the mental
health of the pregnant woman.
Article Information
ARTICLE 21 & ABORTION
Authors: MAKAM GANESH KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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