Abortion Law in India

Sabahat Khan
Family Matters

India’s Abortion law - Aborts the Patriarchy

Introduction: The news of Striking down Roe v. Wade judgement by the US supreme court after 50 years, took everyone by surprise on Friday the June 24, 2022. The federal right of abortion was taken away from women in the United States and the protestors banners read “ Our bodies our choice” asking US supreme court to go back on the decision and hope for the same is not seen yet. On the contrary India has passed the abortion law as a step towards safety and well-being of the women and law truly is FOR the women of the country. The recent amendments passed by in the Medical Termination of Pregnancy Act 1971 (hereafter referred to as the ‘MTP Act) also includes changes favouring women and protecting their fundamental right.

This post is an effort to help any person (layman) understand the following in detail:

History of abortion law in India
Conditions in which pregnancy could be legally terminated as per previous MTP Act, 1971
Recent amendments to Medical Termination of Pregnancy Act 1971
Case laws that led to the amendment of Medical Termination of Pregnancy Act 1971
Conclusion

History of abortion law in India

There was no documentation or evidence of abortion being legal or illegal in India until the British colonial rule, which made it illegal. Abortion was considered a crime under the Indian Penal Code of 1860 and was only permitted to save the life of the pregnant woman. However, this severe abortion regulation was frequently broken, and women turned to unskilled and ill-advised procedures, as well as unqualified medical practitioners, for abortion, resulting in a high mortality rate. Before 1971, abortion was criminalized under Section 312 of the Indian Penal Code, 1860, describing it as intentionally "causing miscarriage".Except in cases where abortion was carried out to save the life of the woman, it was a punishable offense and criminalized women/providers, with whoever voluntarily caused a woman with child to miscarryfacing three years in prison and/or a fine, and the woman availing of the service facing seven years in prison and/or a fine. India pioneered in legalizing induced abortion (Medical Termination of Pregnancy (MTP) Act of 1971) under which a woman can legally avail abortion if the pregnancy carries the risk of grave physical injury, endangers her mental health, when pregnancy results from a contraceptive failure in a married woman or from rape or is likely to result in the birth of a child with physical or mental abnormalities. Abortion was permitted up to 20 weeks of pregnancy duration and no spousal consent is required.

The Medical Termination of Pregnancy (MTP) Act , 1971

MTP Act 1971 became law in India on April 1, 1972. The statute was passed in order to liberalise abortions by allowing them under specific circumstances. As per the MTP Act, 1971 termination of pregnancy is permitted for a broad range of conditions up to 20 weeks of gestation as detailed below:

When continuation of pregnancy is a risk to the life of a pregnant woman or could cause grave injury to her physical or mental health;
When there is substantial risk that the child, if born or dead would be seriously handicapped due to physical or mental abnormalities;
When pregnancy is caused due to rape (presumed to cause grave injury to the mental health of the woman);
When pregnancy is caused due to failure of contraceptives used by a married woman or her husband (presumed to constitute grave injury to mental health of the woman).
When the socio-economic condition of the family is poor and the couple already has 2–3 children

Recent amendments to Medical Termination of Pregnancy Act 1971 (Bill)

The gestation limit is changed from 20 weeks to 24 weeks and this includes rape victims and survivors, Incest victims, minors and differently abled women.
The gestation limit will not apply in cases of foetal abnormalities diagnosed by the medical board.
Identity if a woman whose pregnancy has been terminated shall not be revealed except to a person authorised in any law for time being in force.
Supreme Court passes ad-interim order allowing unmarried woman to terminate pregnancy of 24-week term arising out of a consensual relationship. Thus replacing “married woman” with unmarried and “husband” with partner in the original MTP act 1971
The Medical Termination of Pregnancy (Amendment) Bill, 2021 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds. The amendments include substitution of certain sub-sections, insertion of certain new clauses under some sections in the existing Medical Termination of Pregnancy Act, 1971, with a view to increase upper gestation limit for termination of pregnancy under certain conditions and to strengthen access to comprehensive abortion care, under strict conditions, without compromising service and quality of safe abortion.

Landmark cases that lead to subsequent amendments of MTP Act 1971

The 2009 Suchita Srivastava case

Suchita Srivastava & Anr. v/s Chandigarh Administration was heard by a three-judge Supreme Court panel, in which an orphaned woman with mental retardation got impregnated as a result of rape. Without the woman’s agreement, the Punjab & Haryana High Court concluded that the pregnancy should be aborted under Section 3 of the MTP Act 1971 because she lacked the capacity to care for a kid and had no parent or guardian to look after her. The Supreme Court overturned the Punjab and Haryana High Court’s decision, ruling that the right to reproductive choice is derived from Article 21 of the Constitution’s right to liberty. It was stated that robbing a woman of her right to choose her own body would be an infringement of her right to privacy. It also made a distinction between mental illness and mental retardation, concluding that a woman’s mental retardation did not deprive her of her right to choose her reproductive options. As a result, it was determined that a pregnancy abortion without her agreement could not be authorised.

2010 Khushboo Case

S Khushboo [hereinafter referred as the “Appellant”] who is a well-known actress has approached the Hon’ble Supreme Court to seek quashing of criminal proceedings pending against her. As many as 23 criminal complaints were filed by Kanniammal & Anr. [hereinafter referred as the “Respondents”] against the Appellant, mostly in the State of Tamil Nadu, for the offences contemplated under Section 499, 500 and 505 of the Indian Penal Code, 1860 and Section 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986.Appelant had made some remark regarding the premarital sex in the context of Live in relationship to a leading news magazine. Issue in hand was whether the Appellant’s remarks could reasonably amount to offence of defamation as defined under Section 499 of Indian Penal Code, 1860. The learned senior counsel appearing for the appellant contended that even if the allegation in the various complaints are taken on their face value, the same do not disclose any offence neither according to the different sections of IPC nor the sections of Indecent Representation of Women (Prohibition) Act, 1986. The Supreme Court observed that the Appellant has merely referred to the increasing incidence of premarital sex and called for its acceptance in the survey. At no point of time the Appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Supreme Court informed it would be appropriate to grant the relief sought by the Appellant i.e., to quash all the complaints. This case became the base for also having unmarried women or premarital sex with partner included in the MTP Act amendment.

2017 K S Puttuswamy case

The fundamental right to privacy is the major issue in hand in this case. The high court retired judge filed a petition in the year 2012 against the Union of India challenging the constitutionality of Aadhaar because it is violating the right to Privacy. It was argued from the side of the petitioner before the court that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution and same is to be protected by the constitution of India. A nine-judge bench of the Supreme Court of India passed a landmark judgment on 24th August 2017, upholding the fundamental right to privacy under Article 21 of the constitution of India.

Conclusion:

India is known for its patriarchal society where men are always heard and preferred before women, in every situation. The Abortion law passed favours women only and ensures the fundamental right is kept intact. The fundamental right has a broad perspective as per Article 21 of the Constitution” and right to life also includes decisions that a woman should be able to take when it comes to her life and her body. The SC bench of Dhananjaya Y Chandrachud, Surya Kant and AS Bopanna while hearing the plea of the unmarried women against the Delhi high court order recently declared “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution” thus passing an interim order for unmarried women to also legally terminate their pregnancy. The three landmark decisions stated above have contributed in their own ways to the recent amendments of MTP Act, 1971. This law is totally opposite to current US abortion law that has banned abortion in 22 states in the USA.