Introduction
Abortion has been a hot topic of debate among intellects, activists and legal & medical community in India. However, the abortion related controversies has never played a significant role in the mainstream political debate of India. This is because of the fact that abortion has never been a controversial topic in the moral and religious perception of the Indian masses or in the agenda of mainstream political parties unlike the west.
Also, though there has been high judicial activism in the area of abortion laws, Indian courts have never undertaken judicial review and struck down any major abortion related laws in India on constitutional grounds. The legal framework governing abortions in India has developed through historical judgements and enactments by the parliament and the changing political winds and international trends played little role in the same.
Since the recognition of Right to privacy as a fundamental right in India by the apex court, the judicial and legal trend in the area of abortion is undergoing radical changes and more dynamic steps are expected in the future.
Statutory law
Until the 1970s, abortion was illegal in India and was punishable under law. Under Section 312 of the Indian Penal Code (IPC), a woman could face three years of imprisonment and a fine. This law was a product of Victorian English morality and was in existence for over a century.
The first step towards legalising abortion laws started in India in the mid-1960s when the government set up the Shantilal Shah Committee headed by medical professional, Dr Shantilal Shah. In 1964, the Committee suggested the liberalisation of abortion laws in India which will help in reducing unsafe abortions and decrease maternal mortality in the country. Based on the report of the Shantilal Shah Committee, a medical termination of pregnancy bill was introduced in Lok Sabha and Rajya Sabha and was passed by Parliament in August 1971.
The Medical Termination of Pregnancy (MTP) Act came into force on April 1, 1972, and was applicable to the whole of India and MTP Rules was introduced in 1975.
The MTP Act, which allowed registered medical practitioners to carry out abortion under certain specified circumstances, granted immunity to doctors performing an abortion in accordance with its provisions from the prosecution under Section 312 IPC.
Under the MTP Act, abortion was allowed till 20 weeks of pregnancy.
The MTP Act offers several protections and rights for abortion. These include:
- Allowing the termination of unwanted pregnanciesfor up to 12 weeks, and with a second doctor’s approval, up to 20 weeks.
- Protection of registered allopathic medical practitioners from legal or criminal proceedings for injury caused to a woman during an abortion procedure, given that the abortion was done according to the provisions of the MTP Act.
- Allowing abortions on the grounds of grave risk to physical or mental health of the woman, unplanned pregnancies, pregnancies resulting from rape, or if there is a substantial reason to suspect that the child may be born with deformity or disease.
Judicial history
As the MTP Act legalised abortion for 20 weeks, any abortion after such timeline was made legal subject to a judicial bypass. The courts have granted judicial bypass on a case-to-case basis. However, the judiciary failed to provide clear legal framework to govern the bypass process. The lack of binding and concrete precedents entrusts wide discretionary power to judges. There have also been contradictory judgments, leading to a lack of clarity as to when a woman or girl is legally permitted to obtain an MTP beyond 20 weeks. Courts have not established a clear framework to determine when an MTP is legal beyond 20 weeks, how to eliminate the need for judicial and medical board authorization, and how to address the underlying issue of providers’ unwillingness to authorize legal abortions
Furthermore, the Supreme Court has, at times, issued compensation to petitioners after they have been denied an abortion, recognizing that the government’s negligence and inaction led to the forced continuation of pregnancy and has caused “incalculable harm and irreversible injury giving rise to emotional trauma.” This leads to serious jurisprudential inconsistencies in the precedents and public policy.
This lack of a proper framework has led to numerous controversial judgements in the area.
In one 2017 case, the Supreme Court denied a petitioner’s request to terminate her pregnancy when she was beyond 27 weeks, dismissing the severe mental harm that carrying an unwanted pregnancy to term would have on her. The Court based its decision on the advice of the medical board, which advised against the abortion because the foetus might be “born alive” and survive for a variable amount of time. The claimant’s mental health appears to have been absent from the discussion on whether to allow the MTP, and emphasis was placed on the foetus over the woman.
In a similar case decided by the Supreme Court that same year, the Court granted the petitioner a medical termination of pregnancy when she was 25 weeks pregnant, relying on a medical board’s report to explain that the petitioner was at risk of “severe mental injury” if the pregnancy continued after being diagnosed with a severe foetal abnormality.
In May 2017, the Supreme Court of India denied a medical termination of pregnancy to a 35-year-old woman from Patna, Bihar living with HIV who became pregnant as a result of rape. Z was homeless and discovered that she was 17 weeks pregnant and HIV positive when she was admitted into a government shelter. Although Indian law permits MTP until 20 weeks on several grounds, including rape and risks to the pregnant woman’s health, Z.’s request for an abortion was denied by a government hospital which improperly demanded spousal and parental consent, despite the fact that the law requires neither for adult women. The hospital’s refusal led Z. to file for permission from the High Court of Judicature at Patna, which denied her permission on reasoning that the Supreme Court on appeal stated was “completely erroneous.”
Although the Supreme Court recognized that Z.’s rights had been violated as the result of improper requirements imposed on her, she was ultimately denied an abortion because she was nearly 26 weeks pregnant by the time, she was able to file the appeal. In a decision granting Z. compensation for the emotional suffering, she had been forced to endure, Justice Dipak Misra expressed:
“[T]he victim in a state of anguish may even think of surrendering to death or live with a traumatic experience which can be compared to have a life that has been fragmented at the cellular level. It is because the duty cast on the authorities under the Medical Termination of Pregnancy Act, 1971 . . . is not dutifully performed, and the failure has ultimately given rise to a catastrophe; a prolonged torment.”
The Supreme Court in the landmark case of Suchita Srivastava 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.
Procedural impediments
Apart from the legal Impediments to safe abortion, women also face many procedural and practical difficulties in accessing the same. CEHAT (Centre for Enquiry into Health and Allied Themes) is a Mumbai-based research institute that has been working on health and human rights since 1994. A study conducted by CEHAT in two anti-natal departments of public hospitals where they asked all the women about their experience of domestic violence and offered counselling services, of the 142 women who disclosed abuse in their marriages and consented to the counselling intervention, 31 reported that their current pregnancy was the result of rape by their husbands. All 31 sought abortions. Of these, 24 women were less than 20 weeks’ gestation but only five of them were able to have an abortion. Of the rest, the 19 women who were less than 20 weeks and the seven who beyond 20 weeks were all forced to continue their pregnancies.
The service records of crisis intervention services provided by CEHAT to survivors of sexual violence at three public hospitals from April 2008 to March 2015 shows that of the 728 women who received these services, 43 reported becoming pregnant as a consequence of rape. Of them, 31 were within 20 weeks of gestation and received abortions, while 12 who had sought abortions after 20 weeks of pregnancy were refused.
Similar studies reveals that medical practioners who are legally and ethically obligated to provide safe abortions often arbitrarily creates following impediments to the same:
- Refusal of abortion because it was their first pregnancy
- Misinformation about medical abortion pills
- Abortion offered only if woman agreed to contraception or sterilization
- Insistence on spousal consent
- Insistence on D&C for abortion, requiring an overnight hospital stay
Recent developments
In July 2017, the Supreme Court urged the Government of India to create permanent committees to take cases of girls and women who have been denied post-20-week abortions. In August 2017, the MoHFW issued a circular that directed each state to establish permanent medical boards that would be tasked with responding to requests by the judiciary to prepare medical reports in cases seeking authorization for abortion after 20 weeks. The circular did not mention whether medical boards could receive appeals without judicial involvement. In October 2017, the Supreme Court agreed to hear a plea for putting in place a permanent mechanism for the expedient termination of pregnancies beyond 20 weeks in cases involving rape survivors and foetal abnormalities, and has issued a notice to the central government seeking its response on this matter.
In the recent judgement of the Supreme Court by a nine-judge bench in Justice K. S. Puttaswamy case, 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.
The Puttaswamy judgement provides a wide affirmation of individual liberty and recognizes the right to privacy as safeguarding an individual’s autonomy. The SC unanimously was of the view that right to privacy includes personal autonomy of the mind and body and is not limited by informational privacy. Such a holding may result in constitutional challenges to several existing laws.
Opposition MP Shashi Tharoor in 2019, introduced ‘The Women’s Sexual Reproductive and Menstrual Rights Bill, 2018’ in Lok Sabha. The private bill focus on protection of bodily autonomy and reproductive rights of women, sought to allow women the choice of legal termination of pregnancy below 24 weeks and provision for public schools to provide girls with free sanitary napkins. The Bill also sought to take away the exception given to men in Section 375 (rape) of Indian Penal Code (IPC) in sexual relations with their wives. At present, the IPC says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.
Though the bill was never passed, it served as a stimuli to Medical Termination of Pregnancy (Amendment) Act 2021. Under the new amendment law, the government set up seven categories of women, who would be eligible for termination of pregnancies between 20 and 24 weeks, under Section 3B of Rules:
“(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy (widowhood and divorce);
(d) women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016)
(e) mentally ill women including mental retardation
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and
(g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.”
A medical board constituting a panel of doctors shall decide on termination of pregnancy beyond 24 weeks under the amended act. Thus, the role of judiciary and instance of judicial bypass is further reduced under the new legal framework.
Though the SC has not undertaken judicial review of any of the existing abortion laws on grounds of violation of fundamental right to privacy, many judgements followed the precedent set by the Puttaswamy judgement and emphasized the significance of right to bodily autonomy and abortion.
On April 2020 Kerala HC allowed abortion for a 14-year-old rape survivor who was 24 weeks pregnant. The Division Bench observed that the “right to make reproductive choices is a facet of personal liberty under Article 21. The said choice would extend to deciding whether or not to carry her pregnancy to its full term.”
On February 2022, Calcutta HC allowed a pregnant woman to terminate a 35-week-old foetus. A 36-year-old pregnant woman was permitted to terminate her pregnancy after 35 weeks, as the child would be born with a spine condition. The judge stated, “Considering the entire gamut of facts and circumstances, this court permits the petitioner to medically terminate her pregnancy at an authorised hospital and/or medical facility.”
On February 2022, Uttarakhand HC permitted a 16-year-old rape survivor to terminate a 28-week-old foetus. The single-judge bench held that, “Right to life means something more than survival or animal existence. It would include the right to live with human dignity.”
On December 2022, the Karnataka HC permitted rape survivor to terminate pregnancy over 24 weeks. The Dharwad Bench allowed the girl to get an abortion considering various factors, including the fact that she was being raised by a single mother, and was still studying at the time.
Conclusion
The changes in legal and judicial policy in favour of right to bodily autonomy places many existing laws in the areas of abortion, surrogacy, sex selection, organ donation and marital rape under scrutiny against fundamental right to privacy.
The high judicial activism in the area ensures judicial scrutiny of not just the laws but also the standard practices in the medical field against higher standards of women’s rights. Abortion is gradually developing into an issue of controversial debate in mainstream politics that can significantly affect vote banks.
Legal and medical standards in India will hopefully witness radical changes in future that will develop a comprehensive framework without internal inconsistencies to govern medical terminations of pregnancies.
Authors:
Alby Stephan. K, Legal Executive at Legality Simplified.
Ester Princy. P