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THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021 AND ITS CONFLICT WITH ARTICLE 14 OF THE INDIAN CONSTITUTION
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THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021
AND ITS CONFLICT WITH ARTICLE 14 OF THE INDIAN CONSTITUTION
AUTHORED BY
- NAKUL SINGH1*,
RAJIV KUMAR SINGH IRS2 & SONICA
SHARMA3
1* B.A. LL.B. (Hons.),West Bengal
National University of Juridical Sciences (NUJS), Kolkata
2 Commissioner Income Tax,
Visakhapatnam, Andhra Pradesh, India.
3 Professor, Department of
Radio-diagnosis, Maharajah’s Institute of Medical Sciences, Nellimarla,
Vizianagaram District, Andhra Pradesh, India.
1*Corresponding Author
Nakul Singh,
B.A. LL.B. (Hons.),
West Bengal National University of
Juridical Sciences (NUJS),
Kolkata
Phone number: +91-8074834824
Ethics approval and consent to
participate: Not applicable
Consent for publication: Informed consent was obtained from all authors participated in the study for publication.
Availability of data and material: The authors confirm that the data supporting the findings of this study are available within the article and are available openly in reference number.
Competing interests: The authors declared “No competing interest”
Funding: Nil
Abstract
This paper is an endeavor to put
forth section 3 ofThe Medical Termination of Pregnancy (Amendment) Act, 2021,
andcast light on the repugnancy between the said sectionand Article14 of The
Constitution of India.The conflict will be highlighted by assailing section3on
the basis of the doctrine of manifest arbitrarinessto judge whether the
legislation is violative of Article 14 or not.
Key words: MPT,
Amendment, Article 14
Introduction
As per theCambridge Dictionary,[i]'abortion'
has been defined as a procedure whereby a pregnancy is intentionally put to an
end. It is also a procedure that has been the subject matter of fierce debates
on ethics and religion. In the domain of ethics, the discourse is between the
proponents of the pro-choice and pro-life sides. The protagonists in the former
favor the existence and development of abortion rights and women being granted
autonomy over their bodies by creating a framework where it is the sole
discretion of the woman in deciding whether to terminate her pregnancy or not.[ii]
On the other hand, the latter, considering the fetus as a living being or
considering abortion as a practice that hinders the growth of life, absolutely
condemns the practice of abortion and looks forward to it being impermissible.[iii]
When the frame of reference is religion, in Hinduism, Christianity, Islam, and
Judaism, the practice of abortion is generally ‘not’ permitted and is
considered a grave sin.[iv]
Abortion, because of centering around
such complex questions and debates, has found its practice as absolutely
illegitimate and impermissible under any circumstance in 26 countries where it
is prohibited altogether[v],
39 countries permit abortion only when doing so is essential to save the
woman’s life[vi], 56
countries permit it on therapeutic or health grounds[vii],
14 countries only allow for it keeping in mind the social and economic
circumstances of the woman[viii]and
only do the remaining 67 countries of the world allow abortion simply on
request.[ix]
As far as the position in India is
concerned, prior to the year 1971, abortion was a criminal offense[x]
and had been provided for in the Indian Penal code, with the only exception
being that such a practice will not be regarded as an offense if it has been
carried out in good faith to save a woman's life.[xi]
If heed is paid to the black letter of section 312[xii],
it is undoubtedly axiomatic to realize that the scope of the said section was
quite limited or restricted.
Due to this undue rigidity, the law
before 1971 was honored much more in the breach than its observance.[xiii]
Due to this rigidity, almost 1/7th of all the pregnant women, in a
particular year used to opt for back door abortion channels or services, which
are highly unsafe, unhygienic, and posed a grave danger to the lives of women.[xiv]
In 1964, a committee under the
chairmanship of Shanti Lal Shah was appointed to address the rigidity of the
prevailing laws dealing with abortion.[xv]
The recommendations put forth by the Shantilal committee wereincorporated in
the medical termination of pregnancy bill and were brought before the
parliament in the year 1970. The recommendations were accepted by both the
houses and the Medical Termination of Pregnancy Act was made operational in the
year 1971.[xvi]
As per section 3 of the act[xvii],
which prescribes specific grounds, the termination of pregnancy can only be
done by the registered medical practitioner if,[xviii]
(I)The life of ‘pregnant woman’ is at risk; or (II)There is a risk of grave
injury to her physical or mental health; or (III)The pregnancy has been caused
due to rape; or (IV) If the child on birth would suffer from severe physical or
mental deformities to be seriously handicapped; or (V)Failure of the
contraceptive or anyother method used by the 'married couple' to limit
childbirth; or (VI)Risk to the health of the pregnant woman by her actual or
reasonably foreseeable environment.
At this juncture, it is pertinent to
note that the law, as stood before the Medical Termination of Pregnancy
(Amendment) Act, 2021, was that, if the woman in question is pregnant but not married,
for her to be eligible for an abortion under the act,[xix]
had to make her case squarely fit in categories (I) or (II) or (III) or (IV) or
(VI).
As far as category (V) is concerned,
a point that should be paid heed to is thatthe failure of a contraceptive used
in ‘premarital’ sex or not gaining access to one due to educational or
socioeconomic factors plays a significant role in paving way for premarital
pregnancies.[xx]However,
category (V), which is the spitting image of such concerns or provides explicitly
for a case where a contraceptive fails, explicitly mentions the terms 'married
woman'. This alludes to the fact that ‘only’ a ‘married woman’ can only utilize
the benefit of category (V) or the ground provided in category (V).
The Medical Termination of Pregnancy
(Amendment) Act, 2021
The changes which the amendment has
brought about are[xxi],
(I)Women can now legitimately seek an abortion till the 24th week as
compared to the 20th week, which was the upper gestation limit
before the amendment. (II)Until the 20th week,the nod of only one
registered medical practitioner would be needed and between the period of 20th
and the 24th week, the nod of two registered medical practitioners
would be needed. (III)If abortion is sought for post the 24th week,
then the permission of a medical board would be needed.
Post the amendment, a welcome change
is that in section 3 of the act[xxii]the
words contained in the section now are 'woman' and 'her partner' as opposed to
'married woman' and her 'husband,' which was the position before the amendment.
Due to this amendment, even an unmarried woman,in the case of a contraceptive
failure, can get her pregnancy aborted within the specified gestational limits
under the act.[xxiii]
The MTP(Amendment) Act, 2021,section3
the conflict with Article14.
Before delving into the nitty-gritty
of the conflict involved, a brief explanation of the conflicting factors is
deemed relevant.
Although section 3 after the
amendment takes a significant stride in the direction of a more progressive
law, the author submits that on reading section 3(2)(a), section 3(2)(b)(I),
and section 3 explanation-1 in conjunction, it is to be seen that a pregnant
woman, married or unmarried, in the case of a contraceptive failure, can only
get access to abortion between a period of 12-20 weeks. If a woman, married or
unmarried, is seeking abortion post the 20thweek, she will have to
satisfy any of the grounds in section 3(2)(b)(I) or section 3(2)(b)(II). In sum
and substance of it, if a contraceptive failure has caused a pregnancy, post
the 20th week, abortion as per the MTP(Amendment) Act, 2021 will not
be permitted.
This axiomatically leads us to
understand that post the amendment,it is unambiguously a straightforward and
simple task to get a fetus aborted within 12-20 weeks as simply quoting a
contraceptive failure will get the procedure done. However, getting a fetus
aborted in 20-24 weeks is indeed an arduous task as not only will the nod of
two medical practitioners be required, the very process itself has been circumscribed
by certain specific grounds in section3(2)(b)(I) and section3(2)(b)(II) any of
which have to be satisfied for an abortion to be done.
Apropos the disparity involved,
scholars from many disciplines have commented and offered rationales or justifications
behind such measures. They are, (I)It has been argued that to curb gender
prediction testing and 'sex-selective abortions,' which are only possible post
the 20th week, restrictions or specific grounds for abortion must be
put in place for abortions requiredpost20 weeks.[xxiv]
(II)Scholars from the pro-life school argue that since post the 20th
week, organs and body parts of the fetus have been formed, it is viewed as a
sacred life form. The fetus is ‘viable’ and can sustain herself independent of
the mother and without medical support and is well placed and equipped to be
brought into the world and that is one reason why the sacred life of hers
should be allowed to prevail unless exceptional circumstances justify an
abortion.[xxv]
(III)Lastly, it has been submitted by medical experts that the ‘invasive
procedures’ involved in abortion make it a highly risky procedure during the
later stages of pregnancy. Therefore, an abortion in the later stages should
only be permitted in exceptional circumstances.[xxvi]
At this juncture, it is pertinent to
cast light on Article 14 of our constitution.[xxvii]Article
14 guarantees every person the right to be treated equally before the law and
extends the equal protection of laws to all persons. Arbitrary state action, be
it from the executive or the legislative wing of the government, is
antithetical to equality[xxviii]as
contemplated in Article 14 and thus violative of Article 14. To check whether
an executive promulgation or notification or a legislation by a legislature
falls foul of Article 14 or not, determining tests have been developed over
time by judicial pronouncements. The test for determining whether an executive
action is arbitrary or not is the 'test of arbitrariness.' If the courts of the
land, by employing this test, find an executive action arbitrary, it will fall
foul of Article 14 and will be declared null and void by the aid of Article 13.[xxix]
The arbitrariness test finds its genesis in the case of E.P. Royappa v. State
of Tamil Nadu, (1974) 4 SCC 3.
On the other hand, the test for
determining whether a particular 'legislation' is arbitrary or not, the test
employed is the test of 'Manifest arbitrariness.' Firstly, let us understand
what is meant by ‘arbitrariness’. The author would propound the explanation by
offering an example. Let us assume that a child‘A’ has to select one chocolate
between chocolate 'X' and 'Y.' If ‘A’ selects chocolate ‘X’ and the reason
behind doing so is her belief that post the consumption of chocolate 'X,' she
will be immunized against COVID-19, such a decision is indeed 'illogical.' It
is based on a 'mistaken and erroneous belief. Nonetheless, the decision cannot
be arbitrary as ‘A’ has not ‘randomly’ picked up chocolate 'X.' Her decision
cannot be termed random. It has been guided by a belief, even if such a belief
is illogical and erroneous. Therefore, although the reasons or rationale or
measures based on which a decision has been made are devoid of rationality, the
decision, however, will not be termed arbitrary or random as it has been
exercised based on such grounds and not just without any consideration or
reason or rationale which unambiguously could be called as a random or
arbitrary pick.
It is to be noted here that the test
of Manifest arbitrariness does not only stop at a superficial inquiry as to if
at all a legislation is being guided or is based on a particular measure or
not. While employing the test of 'manifest arbitrariness,' the court also
scrutinizes the measure or rationale based on which a legislation has been
passed. To elaborate further,the test of Manifest arbitrariness finds its
inception in the case Shayara Bano v. Union of India, (2017) 9 SCC 1. The test in
toto as laid out, in this case, is that, if a piece of legislation lacks a
rational measure or is capricious[xxx],
such a piece of legislation is liable to be declared arbitrary and
consequentially violative of Article 14.
At this stage, it is apposite to
delve into the conflict involved between Article 14 and section3 of the
MTP(Amendment) Act, 2021. Light has already been cast on the reasons or
explanations behind making abortion in the 20-24th week much
complicated and difficult as compared to getting one done within the 20th
week. ‘Apropos’ a superficial inquiry, the ‘disparity’ contained in section3
cannot be termed random or arbitrary as behind such a disparity, relevant
explanations or arguments or measures contained in (I), (II), and (III) have
been offered. Therefore, the next stage of inquiry welcomes us, which deals
with or seeks to scrutinize the very rationality of these measures based on
which the disparity contained in section3 is maintained.
The author submits that the measures
or explanations offered in (I), (II), and (III) are devoid of rationality due
to the following reasons:
Argument (I) favors restricting
abortion beyond the 20th week in order to prevent sex prediction and
sex-selective abortions. According to the argument, it is only post the 20th
week that sex identification is possible. The author submits that such an
argument or measure is without any rationale or utility and is redundant
because owing to the advancements in medical science, sex prediction in the
status quo can be made much before the 20th week. Between the 10th
and 12th week, it can be done by a technique called Chorionic Villus
Sampling[xxxi]
and between the 15th and 20th week, it can be done by
another method called Amniocentesis.[xxxii]
Therefore, significantly curtailing abortion post the 20th week on
such grounds or measures is redundant and irrational.
Argument (II), which limits abortion
post the 20th week on the ground that the fetus has most of her
parts developed by now and can sustain herself independent of her mother, also
makes section3 arbitrary as, the stage of the viability of the fetus, a stand
on which argument (II) has been premised on, is different fordifferent woman.
This essentially means that the stage of viability fluctuates or oscillates
anywhere between the 20th and 28th week, and as a matter
of fact, up till the 20th week, most of the parts of the body of the
fetus have already been formed.[xxxiii]
Which is to imply that in many cases even before the 20th week, the
fetus becomes viable. And to qualify or restrict abortion on such grounds only
between the 20-24th week and not between the 12-20th, a
category in which such a concern is equally applicable, the author submits that
even though there is a determinative principle embodied in the section, its
allocation has only been limited to parts of it and vis. this inconsistency,
absolutely no supporting justification has been offered which consequentially
attracts arbitrariness.
Argument (III), which advocates
restricting or permitting abortion post the 20th week only in
exceptional circumstances, does so on the footing that the invasive techniques
involved in abortion risk the woman's life when done in the later stages of
pregnancy. The author submits that if such is the measure that section3
embodies, it is also devoid of any utility or rationality. Due to the
advancements in medical science,even in the later stages of pregnancy, abortion
has become a much safer procedure in the current day.[xxxiv]
Therefore, the safety argument ultimately falls flat.
Conclusion
To sum up, the author has subjected
section3 of the MTP(Amendment) Act, 2021, to a manifest arbitrariness test, a
test which the section has unequivocally failed to pass. Any law that does not
embody a clear determinative principle 'or' a rational measure will be declared
arbitrary as per the manifest arbitrariness principle[xxxv]and
will thus be violative of Article 14. Lastly, if none of the arguments advanced
in (I), (II), and (III) are the measures which have been the grounds or reasons
for the disparity seen in section3 and the restrictions in the 20-24th
week period have just been merely put in without any justification or rationale
or measure, in such a case, this particular piece of legislation propounding
such disparity, as already explained, due to the absence of any ground on which
such a disparity may have been based isprima facie arbitrary and
axiomatically, violative of Article 14.
References
[xi]. The Indian
Penal code, 1860, section312.
[xvii]. The Medical
Termination of Pregnancy Act, 1971.
[xix]. The Medical
Termination of Pregnancy Act, 1971.
[xxii]. The Medical
Termination of Pregnancy Act, 1971.
[xxvii]. The
Constitution of India, 1950.
[xxviii]. E.P. Royappa v. State of Tamil
Nadu, (1974) 4 SCC 3, ¶88, 89 (per, Chandrachud, Bhagawati and Krishna
Iyer JJ.)
[xxix]. The
Constitution of India, 1950.
Article Information
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021 AND ITS CONFLICT WITH ARTICLE 14 OF THE INDIAN CONSTITUTION
Authors: NAKUL SINGH1*, RAJIV KUMAR SINGH IRS2, SONICA SHARMA3
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/31
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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