Argument of Woman's Safety - Constitutionality of the 20 week limit in MTP Act
This post is in continuation of my earlier post - presenting possible arguments from the Petitioner's side.
In my opinion, the constitutionality of the 20 week limit may be challenged under Article 14 of the Constitution, on the unreasonable classification test. The Supreme Court has laid down the following tests to determine when a classification would be reasonable:
i. It should be based on an intelligible differentia which distinguishes persons or things grouped together in the class from others left out of it.
ii. The differentia adopted as the basis of classification must have a rational nexus with the object sought to be achieved by the statute in question
The two groups or classes created by the said limit are women pregnant up to the 20th week and those who have exceeded the 20th week- where the former may abort, the later cannot. The next question is whether this classification bears a rational nexus with the object sought to be achieved. What could have been object in the minds of the legislators in prescribing a limit of 20 weeks? Nothing in the text of the Act indicates a justification for the same.
The primary objective however appears to be to ensure the safety of the woman. This can be seen from 1) the circumstances that led to passing of the Act and 2) Parliamentary debates. These are relevant factors that can be taken into account to determine the true intention of the legislator when the words of the statute are not clear.
The Indian Penal Code, 1860 banned abortion, except to save the life of the woman. This strict law on abortion was often breached, and women would resort to untrained and unqualified practitioners for abortion, thereby resulting in a high maternal mortality rate. Thus the object of legalizing abortion by passing of the MTP Act was the need to curb large scale unsafe abortions being performed in unhygienic conditions.
One even finds the following statement in the Debates- " abortion is not contemplated beyond the said period as no gynecologist can ensure the safety." (Medical Termination of Pregnancy Bill, 1969 : Parliamentary Debates 1969, p. 2729)
Thus if the rational for the 20 week limit was safety of women then the distinction made certainly had a nexus with the object 38 years ago as medical science was ill-equipped to address termination of pregnancies beyond the 20th week. In the modern context, however, the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks. ( D. Gaur Singh ) Hence, if the object of the time limit under the MTP Act was the safety of the woman, then with the negation of that risk due to new technology, the reason no longer remains valid. And a law which was justified at the time of its enactment may, with the passage of time, become arbitrary because of a change in circumstances (Synthetics and Chemicals Ltd. v. State of UP, AIR 1990 SC 1927) and therefore liable to be challenged as being violative of Article 14. ( Motor General Traders v. State of AP, AIR 1984 SC 121) Besides, the Act in any case leaves the safety of women to the judgment of the medical practitioner so even if the limit is withdrawn the requirement of an authorized medical practitioner’s opinion would still remain and no compromise would be made in respect of the safety of the woman.
Thus this can be one argument which renders the provision unconstitutional. In my next post I will consider another possible argument in support of the provisions unconstitutionality. This argument takes into consideration another possible rational for having an upper limit at 20 weeks - the viability of the foetus.
In my opinion, the constitutionality of the 20 week limit may be challenged under Article 14 of the Constitution, on the unreasonable classification test. The Supreme Court has laid down the following tests to determine when a classification would be reasonable:
i. It should be based on an intelligible differentia which distinguishes persons or things grouped together in the class from others left out of it.
ii. The differentia adopted as the basis of classification must have a rational nexus with the object sought to be achieved by the statute in question
The two groups or classes created by the said limit are women pregnant up to the 20th week and those who have exceeded the 20th week- where the former may abort, the later cannot. The next question is whether this classification bears a rational nexus with the object sought to be achieved. What could have been object in the minds of the legislators in prescribing a limit of 20 weeks? Nothing in the text of the Act indicates a justification for the same.
The primary objective however appears to be to ensure the safety of the woman. This can be seen from 1) the circumstances that led to passing of the Act and 2) Parliamentary debates. These are relevant factors that can be taken into account to determine the true intention of the legislator when the words of the statute are not clear.
The Indian Penal Code, 1860 banned abortion, except to save the life of the woman. This strict law on abortion was often breached, and women would resort to untrained and unqualified practitioners for abortion, thereby resulting in a high maternal mortality rate. Thus the object of legalizing abortion by passing of the MTP Act was the need to curb large scale unsafe abortions being performed in unhygienic conditions.
One even finds the following statement in the Debates- " abortion is not contemplated beyond the said period as no gynecologist can ensure the safety." (Medical Termination of Pregnancy Bill, 1969 : Parliamentary Debates 1969, p. 2729)
Thus if the rational for the 20 week limit was safety of women then the distinction made certainly had a nexus with the object 38 years ago as medical science was ill-equipped to address termination of pregnancies beyond the 20th week. In the modern context, however, the risk to the mother in case of termination of pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks. ( D. Gaur Singh ) Hence, if the object of the time limit under the MTP Act was the safety of the woman, then with the negation of that risk due to new technology, the reason no longer remains valid. And a law which was justified at the time of its enactment may, with the passage of time, become arbitrary because of a change in circumstances (Synthetics and Chemicals Ltd. v. State of UP, AIR 1990 SC 1927) and therefore liable to be challenged as being violative of Article 14. ( Motor General Traders v. State of AP, AIR 1984 SC 121) Besides, the Act in any case leaves the safety of women to the judgment of the medical practitioner so even if the limit is withdrawn the requirement of an authorized medical practitioner’s opinion would still remain and no compromise would be made in respect of the safety of the woman.
Thus this can be one argument which renders the provision unconstitutional. In my next post I will consider another possible argument in support of the provisions unconstitutionality. This argument takes into consideration another possible rational for having an upper limit at 20 weeks - the viability of the foetus.
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