The court rejected a constitutional challenge to statutory grounds for medical termination of pregnancy, including foetal abnormalities and contraceptive failure. It upheld Section 3(2), recognised women's privacy and bodily integrity under Article 21 subject to statutory conditions, and dismissed the petition without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WP(C).No.10130 OF 2013(S)
PETITIONERS:
1 CRY FOR LIFE SOCIETY, REGISTRATION NO.R-197/12, HAVING ITS OFFICE AT ELUVATHINGAL HOUSE, KANIMANGALAM, KAIMANGALAM P.O., THRISSUR-680027 REPRESENTED BY ITS PRESIDENT, SRI.E.C.GEORGE, SON OF LATE SRI.CHERIAN.
3 DR.JAMES JOSEPH, SON OF LATE SRI.C.C.JOSEPH, CHETTIMATTAM, 119, WEST HILL, KURIYACHIRA, THRISSUR-680006.
BY ADVS.SRI.ANIL S.RAJ SMT.ANILA PETER SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE
RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY THE CABINET SECRETARY, NEW DELHI-110001.
2 MINISTRY OF HEALTH AND FAMILY WELFARE, REPRESENTED BY ITS SECRETARY, NIRMAN BHAWAN, C-WING, NEW DELHI-110 001.
W.P.(C).No.10130/2013 2
ADDITIONAL 4TH RESPONDENT IS IMPLEADED VIDE ORDER DATED 31.03.2106 IN I.A. 4060/2016.
R1 & R2 BY ASSISTANT SOLICITOR GENERAL SRI. P. VIJAYAKUMAR BY SRI.JAISHANKAR V.NAIR, CGC R3 BY ADV. SMT.S.KARTHIKA R4 BY ADV. SMT.K.MOYA KURIAKO
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2020, THE COURT ON 09-06-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.10130/2013 3
“C.R”
JUDGMENT
Dated this the 9th day of June, 2020
S.Manikumar, CJ.
Instant public interest writ petition is filed for the following reliefs:
i) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction, declaring that Section 3(2)(ii) and Explanations I and II thereof, of the Medical Termination of Pregnancy Act, 1971 is unconstitutional for violating Article 21 of the Constitution of India.
ii) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction, declaring that “grave injury” in Section 3(2)(1) of the Medical Termination of Pregnancy Act, 1971 does not mean or include any anguish occasioned due to unwanted pregnancy caused by failure of any device or method used by any man or woman for the purpose of limiting number of children.
iii) Writ, order or direction in the nature of Mandamus or such other appropriate Writ, order or direction declaring that medical termination of pregnancy other than in the circumstances wherein the life of the pregnant women is in grave and imminent danger is unconstitutional for violating Article 21 of the Constitution of India.
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of Pregnancy. 2nd petitioner apart from being a member of the 1st petitioner society, is also engaged in the promotion of pro-life activities and has worked extensively in the field, by providing and directing a documentary film on the value of life and agony of the unborn child in a abortion. 3rd petitioner is a member of the 1st petitioner society and a medical professional working against female foeticide. The petitioners are challenging the constitutionality of Section 3(2)(ii) and the explanation thereof of Medical Termination of Pregnancy Act, 1971.
According to the petitioners, when a spermatozoon enters the ovum, fertilization takes place, which marks the beginning of a biological life of an individual. Formation of a child has to be considered from this stage whereafter it obtains all rights of a human being and is entitled to protection afforded to every citizen of India, including right to life and property. The only exception is when it becomes a risk or threat to the life of the mother. Thus, according to the petitioners, permitting abortion for the reason that the yet to be born is handicapped or that the pregnancy caused as a result of failure of device or method used by any married women or her husband for the purpose of limiting the number of children can be presumed to constitute grave injury to the mental health of the women and hence, she can be permitted to undergo abortion, which violates the right to life. Hence, they seek to declare
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that the said section is bad in law and violates right to life guaranteed under Article 21 of the Constitution of India.
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cannot be a standard age for that. Survival of foetus depends on the state of medical science, available medical facilities in a particular location, and the competence or willingness of the mother/care giver; that the MTP Act permits killing the child inside mother's womb where there is substantial risk if the child is born. It put forth the principle that death is better than suffering. As per the prevailing laws of India, Euthanasia - mercy killing of human being is not sanctioned under any circumstances.
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individual in an emergency situation in which both cannot survive and the survival of one depends on the denial to the other of the means of survival. It is further stated that abortions do not get the privilege of self defense since the unborn is not an aggressor. Secondly, aggression involves an act of will or an act of negligence. It can never arise from an act that is caused by existential forces beyond the control of an individual. There cannot be aggression if the human action does not involve a purposeful behavior or action. Creation of the fertilized egg and its attachment to the uterine wall are not due to the act of unborn child. That is only a result of existential biological forces independent and beyond the control of the child which is brought to play by the combined acts of‘ the father and mother. Since, the unborn child cannot rationally be held responsible for its own creation, it cannot rationally be held to have committed aggression by coming into (being brought into) existence. Aggression implies responsibility. No human being is responsible for its own creation. Since the unborn child is not an aggressor, the mother cannot invoke the privilege of self defense against its continued existence in the place where its development as a human being is logically and biologically appropriate for it. Even in cases where the father is guilty of rape, his guilt cannot rationally be imputed to the child.
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privilege of self preservation, since in the usual case, the mother’s life is not endangered by pregnancy. The privilege of self preservation can be exercised only when the lives of two or more equally innocent persons are in jeopardy and not all of them can be saved. But in normal case, pregnancy is not such a situation. In such extra ordinary cases, the mother would have a privilege to defend her own life through abortion or to choose to give up her life to save the child (if that is possible medically). In such situations, neither the State nor even the father of the child would have any right or privilege to interfere with mother's decision. Hence, abortion does not come within the recognized exception to the right to life. Abortion itself is a form of aggression against the child. It can be said that rather than by law, abortion is supported for an overwhelming practical considerations even though there are differing views internationally in this aspect.
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protected, and it was not permissible at this late stage to attempt to allow a liberal abortion agenda under the Convention for the Rights of the Child. Explicit protection is extended to the unborn child in the International Covenant on Civil and Political Rights 1966, and in the convention on the Prevention and Punishment of the Crime of Genocide 1948. The text (of the Universal Declaration of Human Rights 1948) clearly states that everyone has the right to life, and that what is meant by everyone is ‘every member of the human family‘ - that is all human beings.
W.P.(C).No.10130/2013 10
eugenic, humanitarian or social grounds. It also aims to regulate and ensure access to safe abortion care for women and also defines ‘when’, ‘where’ and ‘by whom’ abortion can be performed; that the overall aim of this Act is to provide safe abortion services within a legal framework and enhance access and availability of these services, in order to prevent women from approaching unsafe, backstreet abortion providers and protect them from the attendant risks, including that to life; that the objectives of the Act and define situations & circumstances in which safe abortion can be legally performed; empowers medical practitioners & institutions delivering these services. Furthermore, the MTP Act recognises certain conditions for abortions, incorporated in Section 3(2) and permitted, if continuation of pregnancy:
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abortion framed by other countries including countries like the United Kingdom where there is considerable regard for human rights and rights of women as such and further that the petitioners have adopted a biased one-sided view and have not taken into account the issues surrounding women's rights with regard to their own health and to life. On the above grounds, the 2nd respondent sought for dismissal of the writ petition with costs.
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7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation 2002. Clause 7.6 of the said Regulation prohibits sex determination test with intention to terminate the life of a female foetus. Any such act is considered as a professional misconduct, for which the said registered medical practitioner will be liable to criminal proceedings and penal actions.
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sound scan, Chorion Villus Sampling (CVS) amniocentesis etc., it is possible to diagnose serious physical and mental abnormalities at very early stage of pregnancy. In the prevailing conditions in India, as there is no mechanism by which the safety and welfare of persons with serious physical and mental abnormalities are ensured, such children are very often abandoned at birth and live a life of uncertainties and exploitation. The third condition is, when the pregnancy is a result of rape: rape by itself exposes the woman concerned to great physical and mental trauma. In most cases, woman’s mental health is disturbed by the act of rape and pregnancy that results from it can cause serious mental distress to her. The 4th condition is when pregnancy occurs due to failure of contraception: an unwanted pregnancy can cause mental stress to the mother and in turn, affect her physical and mental well being.
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“ 3. When pregnancies may be terminated by registered medical practitioners .-(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, -
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two
W.P.(C).No.10130/2013 15
registered medical practitioner are,of opinion, formed in good faith, that -
(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
Explanation I.- Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II.- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant womens actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.”
1971 (34 of 1971), Central Government have made the Medical Termination of Pregnancy Rules, 2003. Rule 4 of the MTP Rules reads thus:
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“4. Experience and training under clause (d) of Section 2:-
For the purpose of clause (d) of section (2), a registered medical practitioner shall have one or more of the following experience or training in gynaecology and obstetrics, namely;
(a) In the case of a medical practitioner, who was registered in a State Medical Register immediately before the commencement of the Act, experience in the practice of gynaecology and obstetrics for a period of not less than three years;
(b) In the case of a medical practitioner, who is registered in a State Medical Register:-
(i) if he has completed six months of house surgency in gynaecology and obstetrics; or
(ii) unless the following facilities are provided therein, if he had experience at any hospital for a period of not less than one year in the practice of obstetrics and gynaecology ; or
(c) if he has assisted a registered medical practitioner in the performance of twenty-five cases of medical termination of pregnancy of which at least five have been performed independently, in a hospital established or maintained or a training institute approved for this purpose by the government.
(i) This training would enable the Registered Medical Practitioner (RMP) to do only 1stTrimester terminations(up to 12 weeks of gestation).
(ii) For terminations up to twenty weeks the experience or training as prescribed under sub rules (a), (b) and(d) shall apply .
(d) In case of a medical practitioner who has been registered in a State Medical Register and who holds a post-graduate degree or diploma in gynaecology and obstetrics, the experience or training gained during the course of such degree or diploma.”
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under Article 21 of the Constitution of India by the Hon'ble Apex Court as well as the High Courts. The privacy guaranteed under Article 21 of the Constitution entitles a woman to decide as to whether she should continue with an unwanted pregnancy. The exceptions carved out for termination of pregnancy would show that it is on account of adverse consequences to the life of a women, such a course of action is permitted and, therefore, the parliament in its wisdom, has introduced such provisions under MTP Act, 1971, and amended from time-to-time with good intention. So much so, the wisdom of the parliament on account of such intentions and object sought to be achieved by introducing such a provision cannot be said to be a thoughtless and insignificant one. True the constitutional courts can entrench upon the legislation, but such power should be exercised with utmost circumspection, since the framers of law have brought out the legislation with a real purpose to be achieved after taking into consideration various factual and other circumstances. But, at the same time, if any illegal circumstances like forcible termination etc., comes to the notice of the authorities, they are at liberty to proceed in accordance with law. That apart, the provisions of Section 3 of the MTP Act, 1971 make it clear that it only permits a voluntary action at the Will of a pregnant woman and in the case of pregnancy of a woman who has not attained the age of 18 or who has attained majority is a mentally ill person with the consent in writing of her guardian. Hence, it is clear that it is taking
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into account the choice of the woman or the guardian in any adverse circumstances that can occur on delivery and on being fully satisfied in accordance with the Rules, 2003 by a qualified medical practitioner, the medical termination of pregnancy is possible to be done. Considering all these aspects, we could safely come to a conclusion that the provisions so made for the medical termination of pregnancy is proportionate to the object sought to be achieved.
Administration reported in (2009) 9 SCC 1, the Hon'ble Apex Court had considered the question of a pregnant woman's consent for termination of her pregnancy with mild mental retardation and held that her consent is also necessary for reasons that Section 3(4)(a) excludes consent of mentally ill woman, but not mentally retarded woman. The Court further held that consent is necessary even when pregnancy is to be terminated in the circumstances mentioned in Section 3(2)(i) and 3(2)(ii) of the MPT Act, 1971, and that the only exception to the said rule is contained under Section 3(4)(a) which prescribes for guardian's consent (instead of woman's consent) where the woman is a minor or mentally ill. In the above said decision, the Hon'ble Apex Court has also considered the right of a woman to make reproductive choices and held that reproductive choices is a dimension of personal liberty
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as understood under Article 21 of the Constitution of India. Paragraph 22 of the judgment is relevant to this context, which reads thus:
“There is no doubt that a woman's right to make reproductive choices is also a dimension of `personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilization procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a “compelling state interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”
20. In Suchita Srivastava (cited supra), the Hon'ble Apex Court has
further held that the provisions make it clear that ordinarily, a pregnancy can be terminated only when a medical practitioner is satisfied that continuance of pregnancy would involve a risk to the life of the pregnant woman or of grave
W.P.(C).No.10130/2013 21
injury to her physical or mental health, or when there is substantial risk that if the child was born, it would suffer from such physical or mental abnormalities, has to be seriously handicapped. The other provision of Section 3 was also taken note of by the Hon'ble Apex Court and held that it is under specified circumstances, in order to protect the interest of the pregnant woman and to avoid substantial risk on the birth of the child that it would suffer from physical or mental abnormalities, and to be seriously handicapped, the medical termination of pregnancy can be undertaken by the medical practitioner. Taking into account the factual and legal circumstances involved in the case, it was finally held that the language of Medical Termination of Pregnancy Act, 1971 clearly respects the personal autonomy of mentally retarded persons who are above the age of majority.
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also undertaking a survey of the judgments rendered under MTP Act, 1971 and the concept of right to privacy, at paragraphs 60 & 61, the Hon'ble Apex Court held as follows:
“60. Before parting with the case, we must note that India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993 and is under an international obligation to ensure that the right of a woman in her reproductive choices is protected. Article 11 of the said Convention provides that all State parties shall ensure the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Article 12 of the Convention stipulates that State parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, accesses to health care services, including those related to family planning.
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should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman is not hindered. The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be overemphasised.”
22. In Tapasya Umesh Pisal v. Union of India reported in (2018)
12 SCC 57, the Hon'ble Apex Court has considered the question of granting permission for termination of pregnancy of 24 weeks for saving life of a woman and held that when there is a grave danger to the pregnant woman's own physical and mental health and the foetus diagnosed that it would have to undergo surgeries associated with high morbidity and mortality after delivery, medical termination of pregnancy can be permitted to be done, taking into account the fact that if the foetus is allowed to born, would have a limited life span with serious handicaps which cannot be avoided, and since it appeared that the baby will not certainly grow into an adult.
23. In Sarmishtha Chakrabortty and Another v. Union of India,
Secretary and Others reported in (2018) 13 SCC 339, the Hon'ble Apex Court held that right of a woman to have reproductive choice is inseparable part of her personal liberty under Article 21 of the Constitution and she has sacrosanct right to have her bodily integrity. Paragraphs 11 and 12 are
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relevant to the context, which read thus:
“In the instant case, as the report of the Medical Board, which we have produced, in entirety, clearly reveals that the mother shall suffer mental injury if the pregnancy is continued and there will be multiple problems if the child is born alive. That apart, the Medical Board has categorically arrived at a conclusion that in a special case of this nature, the pregnancy should be allowed to be terminated after 20 weeks.
In the case of Suchita Srivastava & Anr. vs. Chandigarh Administration [(2009) 9 SCC 1], the Court has expressed the view that the right of a woman to have reproductive choice is an insegregable part of her personal liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right to have her bodily integrity. The case at hand, as we find, unless the pregnancy is allowed to be terminated, the life of the mother as well as that of the baby to be born will be in great danger. Such a situation cannot be countenanced in Court.”
the Hon'ble Apex Court had occasion to consider grant of permission to medical termination of pregnancy, which has attained 25/26 weeks, and having found that the foetus was causing grave danger to mother's life and foetus is suffering from incurable medical conditions making it incompatible with life outside womb, granted permission with appropriate directions. Paragraph 6, which is relevant to this context, reads thus:
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“6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 to 26 weeks. The condition of the foetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the foetus would not be able to survive outside the uterus without a skull. Importantly, it is reported that the continuation of pregnancy can pose over mental injury to the petitioner and no additional risk to the petitioner's life is involved if she is allowed to undergo termination of her pregnancy.”
(2018) 4 SCC 289, the Hon'ble Apex Court had occasion to consider the question of illegal termination of pregnancy, during the 25th week of a pregnant woman, apprehending danger to her life, after discovering that her foetus was diagnosed with a defect that leaves foetal skull bones unformed and both not treatable, certain to cause infant's death during or shortly after birth, and the condition also known to endanger mother's life, permitted to conduct medical termination of pregnancy after due medical check up. Paragraphs 6 and 7 are relevant to this context, which read thus:
“6. Upon evaluation of the petitioner, the aforesaid Medical Board has concluded that her current pregnancy is of 25 weeks and 1 day. The condition of the fetus is not compatible with life. The medical evidence clearly suggests that there is no point in allowing the pregnancy to run its full course since the fetus would not be able to survive outside the uterus without a skull.
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which are all facets conferred on her under Article 21 of the Constitution of India to decide as to whether continuance of pregnancy would be in the best interest of her life. So also, whereever there is an abuse of process of law, any person aggrieved can avail legal remedy. Hence, medical termination of pregnancy is possible only under the circumstances contained in Section 3 of the MTP Act, 1971. Therefore, it cannot be said that everyone, who is not interested to continue with the pregnancy, is entitled as of right, to seek medical termination of pregnancy on any grounds other than the one mentioned under Section 3 of the Act. Furthermore, it is clear and evident from the provisions of Prohibition of Sex Selection Act, 1994, that any medical termination of pregnancy, which is sought on the basis of sex, selection and determination, is punishable as per the provisions of the said Act. Therefore, sufficient and more safety measures and precautions are undertaken by the parliament, in order to ensure that unnecessary termination of pregnancies are not insisted upon or carried out by a pregnant woman or a medical practitioner respectively.
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powers under Article 226 of the Constitution of India. Ultimately, the issue with respect to safety of the woman and condition of the foetus are all to be decided by the medical practitioners, in accordance with the provisions of the Medical Termination of Pregnancy, 1971 and the provisions of other laws, by which the medical practitioners are carrying out their duty and obligations conferred under the Act, 1971.
In view of the above, petitioners are not entitled to get any reliefs as sought for in the instant writ petition. Writ petition fails and accordingly, it is dismissed. No costs.
Sd/- S.MANIKUMAR CHIEF JUSTICE
Sd/- SHAJI P. CHALY JUDGE
krj
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APPENDIX
PETITIONER'S/S EXHIBITS:
RESPONDENTS' EXHIBITS:-NIL
//TRUE COPY//
P.A. TO CJ
2 issues framed by the court
Do Section 3(2)(ii) and Explanations I and II of the Medical Termination of Pregnancy Act, 1971 violate Article 21?
Must lawful termination of pregnancy be confined to circumstances involving grave and imminent danger to the pregnant woman's life?
Colour shows how this judgement treated each authority
Suchita Srivastava and Another v. Chandigarh AdministrationRelied on¶107
(2009) 9 SCC 1 · Who else cites this
Z v. State of Bihar and OthersRelied on¶116
(2018) 11 SCC 572 · Who else cites this
Tapasya Umesh Pisal v. Union of IndiaRelied on¶123
(2018) 12 SCC 57 · Who else cites this
Sarmishtha Chakrabortty and Another v. Union of India, Secretary and OthersRelied on¶125
(2018) 13 SCC 339 · Who else cites this
A v. Union of India and OthersRelied on¶131
(2018) 14 SCC 75 · Who else cites this
Mamta Verma v. Union of India and OthersRelied on¶135
(2018) 4 SCC 289 · Who else cites this
6 provisions across 4 enactments
CRY FOR LIFE SOCIETY
JIJO GEORGE
UNION OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
THE PRESIDENT, KERALA FEDERATION OF OBSTETRICIANS AND GYNECOLOGISTS
ASSOCIATION OF GYNAECOLOGISTS AND OBSTETRICIANS
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
