Perspectives on Law

In this post I present the arguments on this question from the State's perspective. The limit  on abortion is purely a question of policy - It is well settled that the SC and HC will not interfere or adjudicate upon Government policy matters. (V.G Ramachandra, General Principles of Writ Jurisdiction, Vol. 1, 6th Ed. p. 550) The principle is firmly embedded in the Constitution, that the policy of law and expediency of passing it, are matters for the legislature to decide, while interpretation of laws and their validity fall within the exclusive adjudicatory functions of the court. ( Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 405 )  This is because in complex social, economic or commercial matters decisions have to be taken keeping in mind several factors, and it is not possible for the courts to consider competing claims and conflicting interests and to conclude in which way the balance tilts. ( Nagaraj v. State of A.P, (1985) 1 SCC 523 ) First, barring a few parts...

Let us now consider the next possible argument that the State may raise in its defence to justify the rational of a 20 week upper limit - Viability of the foetus. Many countries which have an upper limit on abortion, have it because of the element of viability of the foetus. Viability is that stage from which a foetus becomes capable of surviving outside the womb of the mother. Medically this stage is said to be certain between 26-28th week. ( Stephen M. Krason, Abortion- Politics, Morality and the Constitution, 1984 p. 346) Also, The prospects for babies born before the 24 week limit are usually very poor. ( Study published by British Medical Journal ) Thus clearly the argument that the 20 week limit is in support of the viability of the foetus does not hold good. Even assuming that this limit was valid on grounds of viability of foetus, it would have no bearing on abortion of a foetus on eugenic grounds. Most of the countries which recognize viability of foetus as a ground fo...

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 obje...

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 ...