Abstract
Pregnancy, a term of 9 months which is 36 weeks. It’s a period where a woman bears a new life in his womb, where she nurtures a life inside her, a carrier of a new being and a keeper of a little life to bring it in this world. On the contrary when the “keeper herself, finds it difficult under few circumstances to take care or hold the new life further, she opts the way of Abortion”, which means to terminate it. The safe and necessary termination of the pregnancy is welcomed and allowed in many countries across the world. Conditions where the life or health of the woman or the child inside her is likely to suffer some issues or is unfit to continue further pregnancy then the woman has the option or the provision of terminating the pregnancy any further under the observation of the medical practitioners. This paper thus attempts to give a holistic view of the abortion laws and amendments made in India from beginning.
Key words
Abortion, Rights, MTP, unmarried woman, Supreme Court
Introduction
Abortion has always been a controversial topic around the whole world. Especially in a country like India which is governed by ethics and morality, abortion has always been a topic of discussion. From illegal abortion to legalizing abortion in India it has come a long way and has seen a tremendous development across the time. Abortion holds extremely divergent opinions as far its legality is concerned.[1] There’s always question around it as whether it is in the purview of constitution or it fails to be recognized as a fundamental right.
According to the Indian Penal Code 1860, abortion is stated in the terms of causing a miscarriage and is considered as a punitive offence. Under section 312 of the Indian Penal Code,1860,[2] causing miscarriage with an intention which is not good faith is punishable. Even if the woman herself wants to cause a miscarriage or she causes a miscarriage is punished by the law. However, the word abortion is nowhere mentioned in the code, but the word causing miscarriage which is causing the wrongful termination of the pregnancy voluntarily is an offence. Thus, the very sole purpose of the code is to protect the unborn child in the womb unless the abortion is done for the protection of life of any one of them.
Hence, the very concept of abortion has seen many amendments and developments that has led to a better working of the situations in India.
Thus, this paper aims to bring the various developments and law which the Indian judiciary and the legislative has come up with the provisions of abortion. From the Medical termination of pregnancy act to 1971 to the latest judgment has been mentioned in the paper to know the variations that has occurred in India.
Research methodology
The paper is descriptive in nature and all the information and the research put has been taken from the secondary sources and has been analyzed. It has been tried to put the complete abortion laws and provisions being followed in India to comply under one heading to give an insightful read. Secondary source of information is like, articles, journals, blogs, newspapers, various websites were used for the research.
A Committee
It was in the mid-1960s that the government set up the Shantilal Shah Committee and asked the group, headed by Dr Shantilal Shah, to look into the matter of abortions and decide if India needed a law for the same. To set some hard boundaries with respect to clinical end of pregnancy, the public authority of India set up the Shah Panel under Mr. Shantilal Shah to propose specific draft regulations. This was likewise finished when nations across the world were endeavoring to change end regulations and around 15 provinces had previously authorized clinical end of pregnancy. The Shah Panel in its report seen that “anything that might be the moral and moral sentiments that are proposed by society overall on the subject of prompted fetus removal, it is a fact that various mothers are ready to put their lives in danger by going through an unlawful fetus removal as opposed to conveying that specific youngster to term”. The board of trustees presented a thorough report recommending different circumstances supporting legitimate end of pregnancy. It was of the view that this ought to be permitted not just for saving the existence of the pregnant lady, yet additionally to keep away from grave injury to her physical or psychological well-being. There was some discussion encompassing the fundamental privilege of passing this regulation, with respect to whether it was authorized to battle the rising populace development or to guarantee ladies approach safe strategies for end, and giving them improved regenerative freedoms. Certain groups saw the regulation, upon its sanctioning, just like a technique for diminishing populace development however the Shah Council, explicitly rejected that this was all there was to it reason
Beginning of Amendments
The Medical Termination of Pregnancy Act, 1971[3] which came as an amendment to the earlier provision of abortion. When the country was in its 22nd year of the Republic and the whole country was moving towards development it came as a provider to the women in the country. It was mentioned according to the act that the termination of the pregnancy should be done by a registered medical practitioner as according to the code. It also has provisions as mentioned:
-the pregnancy should not have exceeded the period of twelve weeks
-the continuance of the pregnancy would involve a risk to the life of carrying mother or of injury or mental health
-substantial risk to the child if born, would suffer some physical or mental abnormalities.
And all such issues should be done only in good faith by the consultation of the registered medical practitioners in a proper place like a hospital maintained by the government or authorized by the government to perform such act.
The amendment brought a relief to all the women especially the married woman when there are chances of causalities. Even after such reliefs it attracted some disputes and case laws which required it to amend again.
The Medical Termination of Pregnancy Act, 2021[4]
The recent amendment came in 2021 which was made for the benefit of the women of al the classes in the society. Though there were previous amendments made in MTP Act in the year 2003 also, but it was also amended again as there was immense need for the act to be amended to keep up with the pace of the growing society. The MTP Act 2021 has brought changes which has on the first hand most importantly increased the length of the termination period from twelve weeks to twenty weeks. And also, the extension has made upto 24 weeks with consultation of two registered medical practitioners.
One of the major amendments which this amendment made was that the Supreme court ordered the medical practitioners not to disclose the identity of the patient to anyone. This step was taken to keep the privacy of the women protected and could only be revealed on the direction of the authorized authorities. It was a major ruling for the growth of the women. This amendment was much needed in the case where the woman is a rape survivor and also there are cases when the survivors are minors. Protection of their identity was necessary as there are various societal stigmas prevailing in the society.
Even after such great improvements of the MTP Act, it also had some issues which was a matter of contention throughout the country[5]. Various petitions were filed before the highest courts to resolve such petitions. One of such major issue was that the provision of abortion was not present for the single unmarried woman. And this situation was questioned several times in the court of law. Also, it was very undesirable that the law transfers the absolute decision-making power from the pregnant woman to the Recognized Medical Practitioners (RMP) and gives the discretion completely to the Practitioners and this was very unethical and immoral for the society to accept this fact. And to overcome such issues the Apex Court has made a recent judgment which overruled the various cases and contentions being revolved under such circumstances.
Overruling, that brought a change
The various contention which was revolving in the society about the MTP Act barring the unmarried women and few other categories of women from opting the process of sage and legal abortion and due to this illegal abortion occurs in the country which has ultimately led to cases where the abortion turned out to unsafe. The apex court of the nation, Supreme Court, in its recent landmark judgment on 29th Sept 2022 made a series of judgment which has completely changed the appearance and provisions of the abortion laws or acts prevailing in the country.
The most significant factor which the court mentioned in its judgment[6] is that all women, no matter married or unmarried, have the right to choose the process of abortion as under different circumstances. It also moved a step ahead and brought the matter of pregnancies which comes under the scope of marital rape. The Supreme ruled that all cases of rape including the ones which falls under the ambit of marital will be allowed to embrace the option of abortion in the matter of good faith.
In this signification judgment the court observed that it was unconstitutional to distinguish between the marital status of a woman for opting the provision of abortion, in the presence of certain exceptional grounds. The judgment was made by a bench of Justices D Y Chandrachud, A S Bopanna and J B Pardiwala. The judgment was based on a case[7] where the provision was challenged to the arrangement made in July by a 25-year-old unmarried lady who moved the court looking for an early termination after the Delhi High Court declined her request. The lady’s case was that she wished to end her pregnancy as “her accomplice had would not wed her at the last stage.”
The Supreme Court overruled a law which prevailed in the society for last 51 years. The barring of the single unmarried woman was the biggest flaw present in the nation. It was taken to be a sign of shame, guilt and stigma. It was stigmatized in the whole society about the pregnancy of an unmarried woman. But was it right? And didn’t such stigmas were against the basic fundamental rights guaranteed to the woman of India.
Thus, overpassing all such stigmas and shame framed by the society on the woman the court pronounced a judgment where it mentioned that from the categories of women mentioned in the clause 3B of MTP Act,2021 they can not exclude unmarried woman. Keeping them away from this article will mean the infringement of their basic fundamental rights of equality and personal liberty as clearly mentioned in Article 14 and Article 21 of our Indian Constitution. It clearly declined the artificial difference between married and unmarried women. The Supreme Court[8] also mentioned that the reproductive autonomy is closely related to the body autonomy so the right of choosing contraception, the number of children and whether or not should solely be the decision of the woman which should be free from any social factors. The bench also referred to a parliamentary debate statistic which was on unsafe abortions and to a Global Health Study by the British Medical Journal which had concluded that 67% of the abortions were unsafe. It added to it that if access to safe abortion is not provided then the people resorting to unsafe abortions will eventually increase. Taking all the contentions in a very open-minded way and wider sense the court acknowledged that single women too have sex and in the deeply rooted patriarchal country where people have little sexual autonomy. The practicing of virginity test of brides at various places was also looked upon. The court clearly stated that law cannot be made be interpreted based on “narrow patriarchal principles.”
The current judgment not only touched the unmarried women’s rights of abortion but it also touched a very sensitive topic of the country which is enraging day by day. “marital rape.” It came into headlines because of this important point also. The[9] very colonial-era law that still remain in the statute books in India that mentions that sex by a man with his wife who is not a minor is not rape. The court pointed out that as the abortion rights are for the rape survivors, then the married women can also fall under the class of survivors of sexual assault and rape as it quite possible that a woman may become pregnant on account of a non-consensual act by the husband. The bench made it very clear that the outset of their ruling was not at all about the legality of marital rape or going against the exception as mentioned under Indian Penal Code, 1860. It merely mentioned that a woman can become pregnant on account of the non-consensual act of the husband or the assault by the man. Thus, any woman should not be forced to live or raise a child with a partner who inflicts mental and physical harm upon her.
This judgment of Apex Court was largely welcomed by the women. It won a praise from feminists and women’s activists. And also, despite the judges making it a statement that this judgment was only made in respect of the abortion law in India but many are wondering that is it a precursor to the court finally criminalizing marital rape and bringing another big judgment that the country is continuously debating on.
Cases in India
Sarmishtha Chakrabortty v Union Of India[10], here a woman approached the Supreme Court to seek permission to undergo a medical termination. The Supreme Court directed that a medical board be set up and the medical board was of the opinion that it was a case for termination of pregnancy as the women was at the threat of severe mental injury if the pregnancy is continued and if the child were born alive, would need complex cardiac corrective surgery stage by stage after birth and there is high mortality and morbidity at every step of this staged surgeries. Therefore, the Supreme Court granted the prayers sought for in the petition and permitted the woman to undergo a medical termination of pregnancy.
X v Union of India[11], based on a report presented by the clinical board coordinated to be comprised, that however the ongoing pregnancy of the candidate was around 24 weeks yet the existence of the baby outside the belly was jeopardized and subsequently the High Court allowed the lady to go through a clinical end of pregnancy according to the arrangements of the MTP Act.
Sheetal Shankar Salvi v Union of India[12], the High Court, based on the report of the clinical load up, declined to concede consent to a lady to go through clinical end in light of the fact that since it has not been workable for the Clinical Load up to decide the timeframe for which the child is probably going to make due and since there is no risk to the mother’s life and that there was the probability that “the child might be conceived alive and may get by for variable timeframe”.
Conclusion
Abortion being the most stigmatized and debatable topic of the country since years has finally witnessed a bright day in its provision. The judgment has widely covered a range of topics which has always been a topic of discussion in all the sectors of the society. Abortion being the essential part of healthcare and basic right of a woman. The judgment has really made a drastic political shift in the development graph of the country when the issue of abortion is a matter of contention not only in our country but around the whole globe. A sound wellbeing strategy with individual decision ought to similarly be regarded in developing times. Regardless, mindfulness on preventative measures and safe sexual practices should be a supported and proceeded with training. Assuming women with undesirable pregnancies are compelled to convey their pregnancies in view of lawful imperatives, it would influence the ages that will come.
The court’s “purposive translation” expresses that the consistent idea in Rule 3B is “an adjustment of a lady’s material situation”. While the decision perceives the right of unmarried ladies, it passes on the implementation of the option to be settled on a case-to-case premise. It isn’t feasible for either the lawmaking body or the courts to list every one of the potential occasions which would qualify as a difference in material conditions. At the very least each body of evidence should be tried against this norm with due respect to the exceptional realities and conditions that a pregnant lady thinks of herself as in,” the decision states. This implies the choice will be in the possession of the enrolled clinical experts — and if unsatisfied, the lady can move toward the court.
So, procuring this judgment the Court has set a benchmark and made it very clear from its ruling that no individual in our country should be deprived of its basic fundamental right. No one should be forced to perform anything illegally or to perform an act against her will. Thus, this judgment brought women a step above in this system of patriarchy.
Articulated by-
Shreya Kumar
KLE Law College, Bengaluru
[1] SnehaMohanty, Abortion laws in India, Legal service India, https://www.legalserviceindia.com/legal/article-1121-abortion-laws-in-india-.html
[2] 14th edition, P.S.A Pillai, Indian Penal Code, 2021
[3] Medical Termination of Pregnancy Act,1971, Act no. 34, 1971 (India)
[4] Medical Termination of Pregnancy Act, 2021, No. 8 of 2021, (India)
[5] Drishtiias, https://www.drishtiias.com/daily-updates/daily-news-analysis/abortion-law-in-india, (11th Nov,2022)
[6] Business Today, https://www.businesstoday.in/latest/policy/story/supreme-court-says-all-women-are-entitled-to-safe-legal-abortion-348494-2022-09-29, (11th nov, 2022)
[7] X v The Principal Secretary Health and Family Welfare Department Govt. Of NCT of Delhi and ANR, 2021
[8] JounalsOfIndia, https://journalsofindia.com/supreme-court-judgment-on-abortion/, (11th nov,2022)
[9] BBC News, https://www.bbc.com/news/world-asia-india-63086321, (11th nov, 2022)
[10] Sarmishtha Chakrabortty v Union of India, (2018) 13 SCC 339
[11] X v Union of India, (2017) 3 SCC 458
[12] Sheetal Shankar Salvi v U.O.I, (2018) 11 SCC 606