Constitutionality of the 20 week limit in MTP Act

The Indian law of Abortion is governed by the Medical Termination of Pregnancy Act 1971 (MTP Act or the Act). The Act allows abortion on the grounds mentioned in Section 3 of the Act. This section permits abortion only until the 20th week of pregnancy. Beyond the said limit abortion is permissible only when termination of pregnancy is immediately necessary to save the life of the pregnant woman.(Section 5 MTP Act)

Section 3 reads as follows:

"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,-


(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is,
or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners 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 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 as to be seriously handicapped.


Explanation 1.-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 2.-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 presumed to constitute a grave injury to the mental health of the pregnant
woman.


(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's 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 C1.(a), no pregnancy shall be terminated except with the consent of the pregnant woman."

My focus is on Section 3(2)(ii) and Section 5. According to this provision, termination of pregnancy on foetal abnormality is permitted only until the 20th week. Thereafter, even if the foetus is detected with a foetal abnormality termination of pregancy will not be legal unless it is neccessary to save the woman's life.

A case which came up on this issue in 2008 was the Niketa Mehta Case before Bombay High Court. The petitioner challenged the constitutionality of this provision which allows abortion only until the 20th week. This case however never looked into the question of constitutionality as the Court found the necessary ground permitting abortion to be absent at the first place i.e. there was no substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

If however this question was discussed then what would the arguments of the Petitioner and State be?

In my next post - I will first present the possible arguments that the Petitioner can make, i.e. that the said section is unconstitutional.

Comments

Post a Comment

Popular posts from this blog

Competition Law - Presumption in Section 3(3) contd..

I have in my earlier posts,( here , here and here ) proposed argumets which may be made in favour of the the presumption being irrebuttable. I will now present the arguments  from the other side. Argument 1- Presumption Rebuttable . One of the principles of Interpretation of Statutes is that another statute may be referred to while interpreting a statute when the two are similar i.e. when they are statutes in pari materia  ( Harshad S. Mehta v. State of Maharashtra , (2001) 8 SCC 257) It has been held by the Supreme Court in State of Madras v. A Vaidyanath Aiyer , AIR 1958 SC 61, that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the con
Read more

NOMINEE v/s LEGAL HEIRS

The Hon'ble Bombay High Court in its very recent decision, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others , held that position of a nominee under section 109A of the Companies Act is not merely that of a trustee for the estate of the deceased, and it further held that, "  on the death of the share holder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons ." This means that, the nominee will be made the beneficial  owner thereof and all the rights incidental to ownership of shares would follow i.e. the right to transfer, pledge or hold the shares. The court based its decision on the express provisions of the section which provide as follows: ­S. 109A. Nomination of shares – (1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of, the company shall vest in the event of his death. (2)
Read more

Retrospective Operation of PWDV Act

Amongst the many conflicting decisions arising out the application of Protection of Women Against Domestic Violence Act, one of them, is in respect of the operation of the Act. The Andhra Pradesh High Court held that the PWDV Act does not apply retrospectively and that an action under the Act can lie only if the acts of domestic violence are committed on or after 26 Oct 2006, i.e. the date on which the Act came into force. Similarly, a Delhi Metropolitan Court  and a JMFC in Goa also took the view that this Act will not be applicable if the acts complained of have been committed prior to the passing of the Act. On the other hand the Bombay High Court and Madras High Court have taken a different view. They held that, the court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the act of violence alleged to have been committed
Read more