Constitutionality of Abortion Laws
Swati Agarwal v Union of India
The Supreme Court will decide if Sections 3 and 5 of the Medical Termination of Pregnancy Act, 1971 violate Articles 14 and 21 of the Constitution of India, 1950.
Petitioner: Swati Agarwal; Garima Sekseria; Prachi Vats
Lawyers: Sansriti Pathak
Respondent: Union of India
Does Section 3(2)(a) violate Articles 14 and 21 by imposing severe restrictions, and fail the tests of reasonability and proportionality?
Does Section 3(2)(b) impose an excessive restriction by limiting the eligible length of pregnancy, for abortion, to 20 weeks?
Is explanation 2 to Section 3(2) discriminatory towards unmarried women, and in violation of Article 14?
Does Section 3(4)(a) violate Article 21 by giving the guardian complete authority over an individual’s right of reproductive choice?
Does section 5 violate Article 21 by imposing the excessive and arbitrary condition of an immediate necessity to save a life?
Is the State obligated to provide safe abortion clinics and facilities under the right to health enshrined by Article 21 of the Constitution?
Prior to the enactment of the MTP Act, abortion was a criminal offence under Section 312 of the Indian Penal Code, 1860. Both the mother and the medical practitioner could face criminal charges for an abortion that was not life-saving.
In 1964, the Ministry of Health and Family Planning constituted the Shah Committee, which was tasked with a review of medical termination in India. Its recommendation, delivered in 1966, was that abortion should be legalised to ‘prevent the wastage of women’s health and lives.’
On this recommendation, the Government enacted the MTP Act, which allowed women to have abortions, so long as they could show that continuing the pregnancy would pose a risk to either themselves or the foetus, or if the pregnancy was a result of rape.
In 2009 in the case of Suchita Shrivastava v Chandigarh, a three-judge bench of the Supreme Court composed of Justices Sathasivam, Balakrishnan and Chauhan delivered a landmark verdict in which they held that a woman’s right to make reproductive choices was a component of the right to personal liberty under Article 21 of the Constitution.
On April 29th 2019, Ms. Swati Agarwal, Ms. Garima Sekseria, and Ms. Prachi Vats filed a PIL in the Supreme Court challenging the constitutionality of Sections 3 and 5 of the MTP Act. The petitioners argued that these provisions are in violation of Articles 14 and 21 of the Constitution of India. The prayers of this petition sought to widen women’s access to safe abortions and grant them greater reproductive choices. It also asserted that the State has a positive obligation under Article 21 to guarantee the right to health. Therefore, the petitioners requested the establishment of safe abortion clinics to reduce maternal mortality.
The Supreme Court will decide if Sections 3 and 5 of the MTP Act violate Articles 14 and 21 of the Constitution.
On 2 March 2020, Union Minister Dr. Harsh Vardhan introduced the Medical Termination of Pregnancy (Amendment) Bill in Parliament. Among other things, the Bill amends Section 3(2) to replace ‘married woman or her husband’ with ‘woman or her partner’.