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.
Prior to 1971, abortion was a criminal offence under the Indian Penal Code, 1860. The State could punish both pregnant women and medical practitioners for taking part in an abortion. The only exception was if the medical practitioner could demonstrate that the abortion was required to save the pregnant woman's life.
By the 1960s, the State began reviewing abortion law. In 1964, the Ministry of Health and Family Planning constituted the Shantilal Shah Committee to conduct an extensive review of medical termination in India. When the Committee concluded its study two years later, it recommended legalising abortion. It reasoned that legalisation was necessary to prevent 'wastage of women's health and lives'.
Aiming to bring about the Shah Committe's recommendations, Parliament enacted the Medical Termination of Pregnancy Act, 1971 ('MTP Act'). The Act empowers pregnant women to approach registered medical practitioners for abortions. However, it requires a woman to first show that her pregnancy poses a serious risk to her or her foetus' health. Alternatively, the Act allows a woman to seek an abortion, if the pregnancy was the result non-consensual intercourse.
Contending that the MTP Act restricts a woman's reproductive choice, three women filed a PIL in the Supreme Court challenging the Act's constitutionality in 2019. Arguing that reproductive choice lies at the core of the fundamental rights to dignity and privacy, they asserted that Section 3(2), Explanation 2 to Section 3(2), Section 3(4) and Section 5 of the MTP Act must be struck down. Further, they submitted that these provisions limit the right to safe abortion, an important facet of the right to health under Article 21 of the Constitution.
Finally, they asserted that the State has a positive obligation under Article 21 to guarantee the right to health. Therefore, they requested the establishment of safe abortion clinics to reduce maternal mortality.
Details of their challenge in the table below:
Update: 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’.
1. Does section 3(2)(a) violate Articles 14 and 21 by imposing severe restrictions and failing the tests of reasonability and proportionality?
2. Does section 3(2)(b) impose an excessive restriction by limiting eligible length of pregnancy, for abortion, to 20 weeks?
3. Does explanation 2 to section 3(2) violate Article 14 by discriminating against unmarried women?
4. Does section 3(4)(a) violate Article 21 by giving the guardian complete authority over individual’s right of reproductive choice?
5. Does section 5 violate Article 21 by imposing the excessive and arbitrary condition of immediate necessity to save life?
6. Is the State obligated to provide safe abortion clinics and facilities under Article 21 of the Constitution?