Plea in Supreme Court: Abortion law violative of privacy

A bench of Chief Justice of India Ranjan Gogoi and Justice Deepak Gupta issued notice on the plea which said the provisions on abortion in the Act were arbitrary, violative of the privacy rights of women, violates their bodily integrity and autonomy, and is unconstitutional.

The Supreme Court Monday issued notice to the Centre on a plea seeking quashing of relevant provisions of the Medical Termination of Pregnancy Act, 1971, which criminalise abortion except in situations prescribed by the Act.

A bench of Chief Justice of India Ranjan Gogoi and Justice Deepak Gupta issued notice on the plea which said the provisions on abortion in the Act were arbitrary, violative of the privacy rights of women, violates their bodily integrity and autonomy, and is unconstitutional.

The petitioners – Swati Agarwal, a teacher; Garima Sekseriais, a digital marketer; and Prachi Vats, a public relations and corporate communication specialist – have sought quashing of Sections 3 and 5 of the Act.

They contended that "the right to exercise reproductive choice, i.e. the right to choose whether to conceive and carry pregnancy to its full term or to terminate is it at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self determination and right to health recognized by Article 21 of the Constitution as has been held" by the court in the past.

They added that "the impugned provisions and the lack of access to safe abortions affects the fundamental right to health, reproductive choice and right to privacy of women of the country".

Where the pregnancy is not older than 12 weeks, Section 3(2)(a) of the Act mandates formation of opinion by a medical practitioner that its continuance would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health, or there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

The petitioners say this is "violative of right to privacy and right to reproductive choice of a woman which inhere and are recognized by Article 21 of the Constitution".

There was "no need" for such a condition "since the adverse consequences of termination are negligible or nil when compared to the risks involved in carrying the pregnancy to it full term", the plea said.

They argued, "Such a requirement reduces the fundamental right of reproductive choice to an exception."

It also infringes on the right to health, as recognised by Article 21 of the Constitution, which "affords constitutional protection to the choice of a woman to make a choice to abort which entails far lesser / negligible to her health", the petition submitted.

They pointed out that the Medical Termination of Pregnancy (Amendment) Bill, 2014, proposed to do away with the restrictions and proposes that the pregnancy not exceeding 12 weeks can be terminated on the request of the woman.

The plea also challenges Section 3(2)(b) of the Act, which deals with the termination of pregnancy beyond 12 weeks and not exceeding 20 weeks. This, the Act says, can be allowed if two registered medical practitioners are of the opinion that the continuance of pregnancy would involve a risk to the life of the pregnant woman, or of grave injury to her physical or mental health, or there is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities.

This, they said was also violative of Article 14 and 21 of the Constitution.

"Restricting the permissible length of pregnancy to 20 weeks is excessive and harsh and has no nexus with the object of the Act which is affording medical care to pregnant women and preventing maternal mortalities," the petition said.

It added, "With the advent of science and technology diagnosis of fetal abnormalities is possible at subsequent stages and with the advancement of science and technology it has become possible to terminate pregnancy even at later stages."

The petitioners also questioned Section 3(4)(a) of he Act, which mandates consent of a guardian for termination of pregnancy in case of minor and mentally ill persons, and said the provision is arbitrary and destructive of right of bodily integrity and autonomy of such women.

"It is submitted that the guardian cannot be made the ultimate decision maker regarding termination or otherwise of the pregnancy given the irreversible physical, mental socio economic consequences that ensue as result of pregnancy. As a result of such a provision a minor is forced to bear the burden of pregnancy and the burden of raising a child if the guardian refuses the consent to terminate the same. It is submitted that the consequences of pregnancy on a woman are drastic and irreversible and therefore should not be left to the whims and fancies of the guardian," their plea said.

The petitioners referred to the judgement of the Supreme Court in the Aadhaar case, where it said that marriage, procreation and sexual orientation are all integral to the dignity of inpidual.