3.

Wheather Indian Laws are Sufficient enough to protect the reproductive autonomy of
women

In the context of the present case, the petition is filed under Article 32 of Indian Constitution,
which guarantees the protection of fundamental rights, enshrined in Part III of the constitution
saying that the position retained by the Indian law in relation to reproductive rights of a woman
and related grounds for termination of pregnancy is against the woman’s right to reproductive
autonomy. Autonomy means the right of a woman to make decisions concerning her fertility and
sexuality free of coercion and violence.

The right to life is a very broad concept and is the most fundamental of all. In India, right to life
has been recognized under Article 21 of the Constitution which says that “No person shall be
deprived of his life and personal liberty except according to procedure established by law”.
Person here includes both man and woman. Among various rights which are available to a
woman, the right to abortion is also believed to be one of the most essential and fundamental
right. Right to abortion has been recognized under right to privacy which is a part of right to
personal liberty and which emanates from right to life.

Right to personal liberty is the most precious, sacrosanct, inalienable and fundamental of all the
fundamental rights of citizen 1Article 21 of Indian Constitution enshrined one of the most
precious fights in the form of life and personal liberty guaranteed under chapter three of Indian
Constitution. Supreme Court in India, the guardian of fundamental rights, has given wide
interpretation to term life.

"By the term life as used here something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an aim or leg, or the
putting out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world. The deprivation not only of life but of whatever God has
given to everyone with life or its growth and enjoyment is prohibited by the provision in question
if its efficacy be not frittered allray by judicial decision".

Right to abortion is a species of right to privacy, which is again proclaimed a continuance of the
right to life under Article 21. Supreme Court ruled the right to privacy included abortions in the
landmark case of Roe v. Wade2

Since right to life includes right to enjoy life with all the limbs and faculties, it implies therefore
that right to procreation and right to have control over reproductive organs are included in the
broader concept of right to life. In Kharak Singh vs. State of U.P. and others, the Supreme Court
has certainly interpreted article 21 and recognized that a person has complete rights of control
1
Sunil Deshta and Kiran Deshta, Fundamental Human Right - The Right to Life and Personal Liberty, Deep & Deep,
New Delhi, 2003, p. 1
2
10 U.S. 113 (1973)
over his body organs and his ‘person’. Thus Right to procreation and to have control over one's
reproductive organs gives birth to another right i.e. the right to abortion

On 24 August, 2017, a nine-judge bench of the Supreme Court of India (hereafter SC or Court)
unanimously affirmed privacy as a fundamental right under the Constitution (Justice K S
Puttaswamy v Union of India 2012a). The bench recognised privacy as an inalienable right,
grounded in values such as dignity which underlie all our fundamental rights, and it categorically
located privacy in the individual. While judges phrased their conceptions of privacy differently,
the bench commonly held privacy to cover personal autonomy relating to the body, mind, and to
making choices, as well as informational privacy.

A key aspect of this personal autonomy are reproductive rights, which entail rights to make
sexual and reproductive decisions, as recognised by the 1994 United Nations International
Conference on Population and Development (UNPIN 1994). These rights have been elaborated
to include access to contraception, the right to a legal and safe abortion, the right to make
decisions concerning reproduction free of discrimination, coercion and violence, the right to not
be subject to harmful practices such as the coerced bearing of children (including with their
spouse); and equal entitlement of LGBTQ persons to the same sexual and reproductive health
services as all other groups (UNFPA, OHCHR, and DIHR 2014).

3.1 Abortion and Reproductive Autonomy

It is humbly pleaded that the issue raised by petitioner regarding the claim of Reproductive
autonomy is already dealt by this Hon’ble Court in Suchita Srivastava v Chandigarh
Administration (20093), which held that reproductive rights include a woman’s entitlement to
carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these
rights form part of a woman’s right to privacy, dignity, and bodily integrity. So the present
Indian laws are sufficient to protect the reproductive autonomy. The Claim of petitioner for the
full autonomy is not maintainable as every fundamental right has reasonable restrictions and the
reproductive autonomy cannot be granted as absolute right.

In present case the question raised on the Section 312 -316 of Indian Penal Code and MTP Act
1971. The impugned Acts does not violate right to privacy of any individual. As Under article 21
there is scope of imposition of reasonable restriction in purview of procedure established by law.
The impugned acts fulfill the reasonableness test criteria under Article 21 of Indian Constitution.

Reasonableness test
In Justice K.S. Puttaswamy v. Union of India4Justice DY Chandrachud’s opinion, co-signed by
Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, stated the test
used for all restrictions on Article 21, under which privacy is being read.

3
AIR 2010 SC 235
4
AIR 2015 SC 3081
 1. “The first requirement that there must be a law in existence to justify an encroachment
on privacy is an express requirement of Article 21. For, no person can be deprived of his
life or personal liberty except in accordance with the procedure established by law. The
existence of law is an essential requirement.”

2. “Second, the requirement of a need, in terms of a legitimate state aim, ensures that the
nature and content of the law which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee against arbitrary state
action. The pursuit of a legitimate state aim ensures that the law does not suffer
from manifest arbitrariness.”

3. “The third requirement ensures that the means which are adopted by the legislature
are proportional to the object and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the guarantee against arbitrary state action because
it ensures that the nature and quality of the encroachment on the right is not
disproportionate to the purpose of the law.”

3.2 ANALYSIS OF SECTION 312 OF INDIAN PENAL CODE

 Section 312 of the Indian Penal Code, defines the offence of 'causing miscarriage' as
follows "whoever voluntarily causes a woman with child to miscarry shall, if such
miscarriage be not caused in good faith for the purpose of saving the life of the woman,
be punished with imprisonment of either description for a term which may extend to 3
years, or with fine, or with both; and, if the woman be quick with child, shall be punished
with imprisonment of either description for a term which may extend to 7 years, and shall
also be liable to fine. Explanation: a woman, who causes herself to miscarry, is within the
meaning of this section.
 The framers of the Code have not used the word 'abortion', in sec.312, which relates to an
unlawful termination of pregnancy. This section speaks of 'miscarriage' only, which as
not been defined in the Code. However, miscarriage, in its popular sense, is synonymous
with abortion and consist in the expulsion of the embryo-foetus at any time before it
reaches full growth.

Miscarriage technically refers to spontaneous abortion, whereas voluntarily causing miscarriage,

which is an offence under the Code, stands for criminal abortion. Legally miscarriage means the
premature expulsion of the product of conception, an ovum, or foetus from the uterus at any time
before the full term is reached. A distinction is made under Section 312 of Code between causing
miscarriage when a women is 'with child' and when she is 'quick with child'. As per judicial
interpretation women is considered to be in the former stage as soon as gestation begins and in
the later stage when the motion is felt by the mother. In other words quickening is the perception
by the mother that movement of the foetus has started.
It obviously refers to an advanced stage of pregnancy. Sec 312 of the Code permits termination
of pregnancy of therapeutic (medical) grounds in order to protect the life of the mother. The
unborn child in the womb must not be destroyed unless the destruction of the child is for the
purpose of preserving the yet more precious life of the mother. The provision by implication
recognizes that the foetus has the right to life. When the termination of pregnancy is caused
without the consent of the women, punishment may extend to imprisonment for life or
imprisonment of either description for a term, which may extend to 10 years or fine.
If the death of the woman is caused by an act done with intent to cause miscarriage with her
consent punishment may extend to 10 years of imprisonment and fine, and if it is done without
her consent, imprisonment for life or ten years and fine. An act done with the intent to prevent a
child from being born alive or to cause it to die after death is punishable upto 10 years of
imprisonment or fine or both. And the causing of death of a quick unborn child by an act
amounting to culpable homicide is punishable upto 10 years of imprisonment and fine.

Reasonability test of Section 312 of Indian Penal Code

 The petitioner has challenged the section 312 of Indian Penal Code under the ground of
infringement of reproductive autonomy of women which basically covered under the
scope of Article 21 of Indian Constitution
 In the Section 312 of IPC which pursuits the legitimate state aim and it ensures that law
does not suffer from manifest arbitrariness of Section 312 of Indian Penal Code as it
protects the women from forcible miscarriage. As this section provides punishment for
illegal abortion of women and also grants consent of women being the ground of
punishment. As if the death of the woman is caused by an act done with intent to cause
miscarriage with her consent punishment may extend to 10 years of imprisonment and
fine, and if it is done without her consent, imprisonment for life or ten years and fine
 Section 312 further elaborated in its explanation clause “a woman, who causes herself to
miscarry, is within the meaning of this section...” In this explanation the state provided
that the miscarriage cannot be done by the women itself unless miscarriage is done with
intent to preserve the life of mother. The provision by implication recognizes that the
foetus has the right to life and thus provides punishment as causing of death of a quick
unborn child by an act amounting to culpable homicide is punishable upto 10 years of
imprisonment and fine.
 Hence the means which are adopted by the legislature are proportional to the object and
needs sought to be fulfilled by the law. As legislature recognizes the need for law for
protection of forcible miscarriage as there was increasement in deaths of women and
unborn children because of forcible miscarriage.
 Hence there is no infringement of fundamental right of petitioner under Section 312 of
Indian Penal Code.
3.3 ANALYSIS OF MTP ACT 1971

In India, Shantilal Shah Committee (1964) recommended liberalization of abortion law in 1966
to reduce maternal morbidity and mortality associated with illegal abortion. On these bases, in
1969 Medical termination of pregnancy bill was introduced in Rajya Sabha and Lok Sabha and
passed by Indian Parliament in Aug. 1971. Medical Termination of Pregnancy Act, 1971 (MTP
Act) was implemented from Apr.1972. Implemented rules and regulations were again revised in
1975 to eliminate time consuming procedures for the approval of the place and to make services
more readily available. The MTP Act, 1971 preamble states" an Act to provide for the
termination of certain pregnancies by registered medical practitioners and for matters connected
therewith or incidental thereto".

The preamble is very clear in stating that termination of pregnancy would be permitted in certain
cases. The cases in which the termination is permitted are elaborated in the Act itself. Moreover,
only a registered medical practitioner who is defined in Sec.2 (d) of the Act as "a medical
practitioner who possess any recognize medical qualification as defined in Cl. (h) of sec.2 of the
Indian Medical Register and who has such experience or training in gynecology and Obstetrics
as may be prescribed by rules made under this Act" is permitted to conduct the termination of
pregnancy. Also other matters connected there with the incidental thereto are incorporated, for
example, the question of consent of termination of pregnancy, and the place where the pregnancy
could be terminated, the power to make rules and regulations in this

The key features of the Medical Termination of Pregnancy Act, 1971 were as follows:

 It indicated when pregnancy could be terminated i.e. upto twenty weeks of pregnancy.
 It specified the indications when termination of pregnancy could be done.
 It indicated that only a qualified registered medical practitioner as defined under the Act
could conduct termination of pregnancy and relied upon the Indian Penal Code for
punishment if conducted by any other.
 It also indicated that termination of pregnancy could be done only in a place established,
maintained or approved by the Government.

Thus it did help to legalize and regulate the termination of pregnancy and really did
much for upliftment of women. Gradually, with an increasing number of centers and
with new problems cropping up, the Act was amended and passed on December 18,
2002.Essential features of the amendment are as follows: -
In the amended Act, the word "mentally ill person" covers a wider variety of mental
diseases and disorders than the word
lunatic" of the Principal Act.
In the amended Act, recognition of a place for the purpose of carrying out MTP is now
at district level rather than the state capital and hence procedural delays should be less.
 In the Principal Act, there was dependence on IPC to enforce discipline. In the amended
Act, the punishment is incorporated in the Act itself.

Reasonability test of MTP Act 1971

 The petitioner has challenged the MTP Act 1971 under the ground of infringement of
reproductive autonomy of women which basically covered under the scope of Article 21
of Indian Constitution
 In the MTP which pursuits the legitimate state aim and it ensures that law does not suffer
from manifest arbitrariness of MTP Act as it legalize termination of pregnancy in India.
It is estimated that 40-60 million abortions take place throughout the world and half of
them performed by unauthorized person mostly in developing countries with grave
consequences (WHO, 1990). Health education and community awareness are the basic
aspects of its prevention.

Illegal abortions are performed much more frequently in India with their disastrous
results Mortality and morbidity rates following illegal abortion are very high and make
the life of many women miserable. All attempts must be made to reduce the incidence of
illegal abortion by proper legislation, propaganda and increasing availability of
contraceptive and abortion services.

Medical Termination of Pregnancy (MTP) is a maternal health care measure, which

helps to avoid the maternal mortality and morbidity resulting from illegal abortions.
Under the provision of the Act, pregnancies upto 20 weeks can be terminated under the
certified opinion of one or two registered medical practitioners depending upon the
period of gestation. Pregnancy termination can be performed on humanitarian, eugenic,
medical and social grounds.
Hence the basic aim of legislature was that to legalize termination of pregnancy in India
and to curb out the problems which aroused from the illegal abortion.
 Hence the means which are adopted by the legislature are proportional to the object and
needs sought to be fulfilled by the law. As legislature recognizes the need for law for
protection of women from illegal abortion
 Hence there is no infringement of fundamental right of petitioner under MTP Act 1971.