W.P.C. TMP- 9/2020
By Adv. Sri Rajit
1. Union of India, represented by Secretary, Ministry of Women and Child Development.
2. State of Kerala, represented by the Secretary, Ministry of Child Welfare.
3. Station House Officer/Inspector of Police.
4. Director of Medical Education.
5. Superintendent, Medical College Hospital.
By Sri. Jaishanker V. Nair, CGC for R1 Sri. Manu Vijayakumaran, Government Pleader for R2, R3, R4 & R5.
A.K. JAYASANKARAN NAMBIAR, J. & SHAJI P. CHALY, J.
FACTS OF THE CASE
A petition was filed by a father of a minor girl (hereafter referred to as Y) who had gone missing nearly five months ago, to trace her. ‘Y’ had eloped with her paramour, a 28-year-old married man, and the efforts of her parents to trace her did not meet any success till almost five months later, when the police authorities finally managed to trace her location to Mangalore. The paramour was arrested and charged under various provisions of Indian Penal Code (IPC) and Protection of Children from Sexual Offences Act (POCSO), and ‘Y’ was restored to the custody of her parents. By the time the custody had been restored to her parents, the pregnancy of ‘Y’ had already advanced beyond the 20 weeks i.e. 24 weeks.
The petitioner approached the Sessions Court seeking permission to terminate the pregnancy, but the said court did not entertain the petition citing jurisdictional reasons. The father of the survivor then moved to the High Court after Sessions Court declined to allow the plea for abortion given that the pregnancy had exceeded the permissible 20-week period (i.e. 24 weeks) for abortion under Section 3 of the Medical Termination of Pregnancy (MTP) Act, 1971. Since the pregnancy had advanced beyond the time period of 20 weeks i.e. the statutory fixed period permissible for legal abortion, the girl’s father moved to the Hon’ble High Court seeking an urgent intervention.
The issue raised in the present case was whether the termination of pregnancy which has already attained 24 weeks i.e. crossed the statutory permissible or prescribed limit of 20 weeks for abortion as mentioned under Section 3 of the Medical Termination of Pregnancy (MTP) Act, 1971, can be allowed?
LEGAL FRAMEWORK REGULATING ABORTION IN INDIA
To understand the case of ABC v. Union Of India and Ors. it is pertinent to have a general idea about abortion and various legal provisions regulating it.
According to the definition provided by various dictionaries Abortion means “The definition of abortion is when a pregnancy ends abruptly, either voluntarily or involuntarily, and the foetus is expelled from the womb before it can live on its own”. The termination of pregnancy was illegal in India and was punishable under Sections 312-318 of the India Penal Code. The only abortion that was allowed was therapeutic abortion. The women did not have a right to abort their child. This lead to illegal abortions in the country and mortality rate of women rose drastically and to curb this Medical Termination of Pregnancy Act 1971 was enacted on the recommendation of Shanti Law Committee.
Ø Termination of Medical Pregnancy Act 1971– This act governs induced abortion in the country. Section 3 of the act states that a woman can abort her child before 12 weeks and before 20 weeks with the permission of one medical practitioner and two medical practitioners respectively if one of the grounds is satisfied. These grounds include risk to life or grave mental and physical injury to the mother if the pregnancy continues, risk of physical/mental deformities or disabilities to the child if allowed to be born, pregnancy due to rape, risk to the health of woman because of the environment around her and failure of device/method used to limit the number of children by the married couple.
If the pregnancy exceeds the prescribed period of 20 weeks then the woman has to approach the court and the court will decide it on the basis of the medical board constituted by it. The medical board will ascertain whether the continuation of the pregnancy will cause a threat to the life of pregnant woman as stated in Section 5.
Section 3(4) clarifies that for termination of pregnancy, consent of the woman is essential. If the woman is lunatic or a minor, then the consent of guardians is required in writing.
Ø Medical Termination of Pregnancy Amendment Bill 2020- This bill has been passed by Lok Sabha in March 17, 2020 and has tried to strengthen the abortion rights of women. The bill has increased the upper gestation limit of termination of pregnancy from 20 to 24 weeks. The Bill has amended the word partner from the husband which is a remarkable step.
Ø Indian Penal Code 1980- This act criminalizes abortion if it is not made in consonance to Section 3 and Section 5 of the MTP Act 1771. According to Sections 312 to 316 of the Indian Penal Code provided that any person performing an illegal abortion was subject to imprisonment for three years and/or payment of a fine.
Ø Reproductive Choices as a facet of Article 21 of the Constitution: The scope of Article 21 includes the right to make reproductive choice. To force a woman to continue her pregnancy is a violation of her right to a dignified life as well as the right to health. The Supreme Court has always taken a progressive step to protect the reproductive right of women. The landmark judgment of Suchita Srivastava & Anr. v. Chandigarh Administration held the right to make reproductive choice in India as part of right to life. It was observed that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to raise children. The crucial consideration was held to be a woman’s right to privacy, dignity and bodily integrity. The Puttaswamy judgment stated that the freedom to make a choice to bear a child or not falls in the realm of privacy. Recognising a woman’s prerogative to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating”. While scrapping off adultery and homosexuality the court has made it very clear that women have the right to sexual autonomy and it is a constitutional right under Article 21 which cannot be taken away.
The Petitioner first approached to the Sessions Court seeking permission to terminate her pregnancy, which had already advanced to 24 weeks. But the petition filed by the Petitioner was not entertained by the Sessions Court citing jurisdictional reasons.
The court also opined that since the maximum permissible period for termination of a pregnancy, based on the opinion of two registered medical practitioners, under the Medical Termination of Pregnancy Act, 1971, viz. twenty weeks, had already expired, therefore the said petition cannot be entertained.
The Kerala High Court adopted a three-legged approach to arrive at the following judgement, the first being the constitution of a medical board to examine Y’s condition, the second approach was based on the assessment of provisions of the Medical Termination of Pregnancy Act (MTP), 1971. Lastly, the court relied on the landmark judgements by the Apex Court.
Ø Firstly, the High Court directed the fifth respondent i.e. Superintendent, Medical College Hospital to constitute a medical board was to examine ‘Y’ with the inclusion of a Psychiatrist therein to ascertain the wishes of ‘Y’ as regards the continuation of her pregnancy, as also her overall mental state and maturity level. The medical board so constituted examined the minor daughter of the petitioner and submitted a report before this court on 4/4/2020 after examining the following aspects:
The report said that continuation of pregnancy at 14 years would definitely involve risk to the life of the pregnant woman as there was an increased risk of all obstetric complications including gestational hypertension, anaemia, risk of operative delivery and obstetric haemorrhage. It will also affect the mental health adversely. There was no history of significant mood, psychotic, anxiety, symptoms. Mental status examination showed that the patient was co-operative and attentive. Higher mental functions were within normal limits. Hence continuing the pregnancy would involve risk of mental health issues in the patient. The patient also does not appear to have the maturity.
As per the Obstetric Ultra Sound Scan report on 19.03.2020, there were no gross anomalies identified. But if the pregnancy continued there was a substantial risk for the physical and mental abnormalities to the baby.
iii. Whether having regard to the advanced stage of pregnancy, there is any danger (other than the usual danger which arises even in spontaneous delivery or at the end of the full-term) if the pregnant mother is permitted to terminate her pregnancy;
As the termination was in the second trimester, it had got more risks than full term delivery. There is more chance for prolonged induction, premature rupture of membrane, infection, haemorrhage, retained placenta, genital tract injuries which may endanger the life of the minor.
The plan was to start induction with medical methods and depending on the progress, switch over to mechanical methods. She should get contractions adequately and expel the foetus spontaneously. If everything fails, then the plan was to resort to hysterotomy. There was a possibility that the child is born alive.
Ø Secondly, the significant questions which arose was whether it would be legal to direct termination of pregnancy which has attained 24 weeks duration. On a deeper analysis of the provisions of the Medical Termination of Pregnancy Act, 1971 mentioned above it was found that Section 5(1) is a stark exception to Section 3 of the MTP Act, 1971. Therefore the provisions make it clear that irrespective of the maximum period to terminate pregnancy, specified under Section 3 of the act, under exceptional circumstances termination of pregnancy, can be allowed as specified in Section 5 of the act.
The Supreme Court allowed the termination of a 32-week old pregnancy of a 13-year-old rape victim held that “Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all the report of the Medical Board constituted by this Court, we think it appropriate that termination of pregnancy should be allowed.”
The Supreme Court allowed the termination of 25/26 week old pregnancy of women as the foetus was suffering from an incurable medical condition. The medical board suggested that it would be in the best interest of the mental health of the women to abort the child.
To resolve the conflict between Y’ to take all such steps as are necessary to preserve her own life against any danger to it, and the compelling State interest in protecting the life of the prospective child the court relied on the Bombay HC judgment which observed that “If a child is born alive, despite attempts at the medical termination of pregnancy, the parents, as well as the doctors, owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything, which is reasonably possible and feasible in the circumstances, must be offered to such child so that it develops into a healthy child.”
To sum up, the present writ petition was allowed by the Kerala High Court after taking into consideration the Medical Board’s Report which said that there was a substantial risk to the life of ‘Y’ as well as her mental health which could be severely affected if the pregnancy was allowed to be continued, which would be against her wishes as ‘Y’ wanted to terminate the pregnancy at the earliest. Also as far as her baby was concerned, the medical opinion was that there was a substantial risk of physical and mental abnormalities as it was a case of teenage pregnancy. The court then analysed the provisions of the Medical Termination of Pregnancy Act, 1971 (MTP) which stated the exception in Section 5(1) which provided that under exceptional circumstances termination of pregnancy irrespective of the maximum period can be allowed, this provision was in sharp contrast to Section 3 of the act which said that termination beyond a certain period i.e. 20 weeks cannot be allowed. Lastly, the court relied on various rulings by the Apex Court, to strengthen its decision of allowing the petition, where again consent and both physical and mental health of the concerned woman was prioritized.
The High Court in its last part of the ruling also ensured that if the baby is born alive despite the attempts of medical termination of the pregnancy, the doctors would ensure everything which is reasonably possible and feasible in every circumstance and is in accordance with the law to make sure that he/she develops into a healthy child. The court also directed the doctors to take the tissue of the foetus for DNA identification and to maintain intact for future purposes.
The author would like to state that the judgment passed by the Kerala High Court has once again reaffirmed the position that women in India have constitutional right to make reproductive choice as it falls within the ambit of Right to Life guaranteed under Article 21. The High Court in this case constituted a medical board and asked to examine not only the physical condition of the petitioner but also her mental state which is commendable. The consent of the minor that whether she would like to terminate her pregnancy or not was taken into consideration which further broadens the scope of this right. The court even looked into the fact that if in case the child is born alive, despite the attempts of medical termination of the pregnancy, the doctors shall ensure that everything, which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose, is offered to such child so that he/she develops into a healthy child. Thus striking a balance between the right of petitioner take all such steps as are necessary to preserve her own life against any danger to it, and the compelling State interest in protecting the life of the prospective child.
However, it is a sad state of affair that the minor rape victim in the present case has to ultimately knock the door of courts because of the stringent provisions of Medical Termination of Pregnancy Act. Less protection is given in cases of juvenile rape where they are allowed to abort their child if the anguish caused by the unwanted pregnancy constitute as a grave injury to the mental health of pregnant women or there is a danger to their life as provided in Section 5 of the Act.
The legislator should give more freedom to women to make informed reproductive choices as the courts have time and again affirmed the same. The current legal provisions further aggravate the trauma of rape victims and minors. Therefore it is required that the legislature should frame such abortion laws that provides speedy remedy, ensures justice and protection to all the rape victims and the minors. Finally, we would like to conclude by saying that this judgement, to a large extent has helped in rejuvenating the right to reproductive health in India.
 Section 3, Medical Termination of Pregnancy (MTP) Act, 1971.
 Sections 312- 318, Indian Penal Code, 1980.
 Shantilal Shah Committee Report, Ministry of Health, Government of Health, 1966.
 Section 3, Medical Termination of Pregnancy (MTP) Act, 1971.
 Section 5, Medical Termination of Pregnancy (MTP) Act, 1971.
 Section 3, Medical Termination of Pregnancy (MTP) Act, 1971.
 2009 9 SCC 1.
 Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. , 2017 10 SCC 1.
 2017 SCC Online SC 1902.
 (2018 ) 14 SCC 75.
 2016 (5) KHC 673 = 2016 (4) KLT 745.
 2019 (3) Bom. CR 400.
Author Details: Agrima Pandey and Sonal Sengar (Hidyataullah National Law University Raipur)
The views of the author are personal only. (if any)