• Kakoli Nath

STATUS QUO OF ABORTION RIGHTS IN INDIA

INTRODUCTION:



As in the words of Swami Vivekananda “It is impossible to think about the welfare of the world unless the condition of women is improved. It is impossible for a bird to fly on only one wing.”

Reproductive rights are fundamental to the acknowledgment of every single human right. They include a range of common, political, monetary, and social rights, from the rights to well being and life, to the rights to uniformity and non-segregation, security, data, and to be liberated from torment or abuse. In any case, the acknowledgement of sexual and reproductive rights of women in the nation despite everything stays irrelevant. The term abortion isn't obscure to an individual, as it more likely than not been heard by him/her multiple times.



LAWS OVERSEEING ABORTION IN INDIA:



Ø The Indian Penal Code, 1860-

The Indian Penal Code, 1860, taking into consideration the social, emotional and medical implications of abortion, declares induced abortion as illegal all throughout India. Section 312 of the Indian Penal Code, 1860 spells out abortion as causing miscarriage. It applies to a woman who carries out miscarriage on purpose. However, the word abortion is nowhere used in this section. Abortion would give miscarriage an essence of intention.

Miscarriage technically would mean spontaneous abortion, whereas, voluntarily causing miscarriage, which is criminalized under Section 312, will stand for criminal abortion. A clear division among the two is lacking. However, the same section declares Therapeutic abortion as legal. In case there is danger pertaining to the life of the mother, the pregnancy can be discontinued. The unborn child in the womb must not be destroyed unless the destruction is for the sole purpose to preserve the life of the mother.



Ø Termination of Medical Pregnancy Act 1971

 This act governs induced abortion in the country. Section 3 of the act states that a woman can abort her child before 12 weeks and but not after 20 weeks with the permission of one medical practitioner and two medical practitioners respectively if one of the grounds is satisfied. These grounds include risk to life or grave mental and physical injury to the mother if the pregnancy continues, risk of physical/mental deformities or disabilities to the child if allowed to be born, pregnancy due to rape, risk to the health of woman because of the environment around her and failure of device/method used to limit the number of children by the married couple.

If the pregnancy exceeds the prescribed period of 20 weeks then the woman has to approach the court and the court will decide it on the basis of the medical board constituted by it. The medical board will ascertain whether the continuation of the pregnancy will cause a threat to the life of a pregnant woman as stated in Section 5. Section 3(4) clarifies that for termination of pregnancy, consent of the woman is essential. If the woman is lunatic or a minor, then the consent of guardians is required in writing.



Ø Medical Termination of Pregnancy Amendment Bill 2020-

This bill has been passed by Loksabha in March 17, 2020 and has tried to strengthen the abortion rights of women. The bill has increased the upper gestation limit of termination of pregnancy from 20 to 24 weeks. The Bill has amended the word partner from the husband which is a remarkable step.



Ø The Constitution of India-

Though ambiguous and unclear, the Constitution of India also talks about the idea of abortion. As stated before, the Right to abortion might come under the Article 21, if subjected to interpretations. Article 21 dictates the Right to life and personal liberty. It can also be understood that a woman, who has been given such a right, might enjoy her personal liberty and alter her body in any way she can. She might do anything to her body, to suit.



The issue of abortion in the Indian Society has consistently stayed a questionable issue. There has been a great deal of resistance from the different areas of the general public considering the law which authorized premature birth as a law against ethical quality. Various religious leaders censored this law and expressed that the demonstration of foetus removal is comparable to homicide i.e. murdering of an individual who has not seen the world yet. Then again, this law is supported by a few different segments of the general public asserting that it is the privilege of a lady whether she needs to bring forth a kid or not, and in the event that somebody is driving her to bring forth the youngster, at that point the individual is disregarding her entitlement to life and individual freedom.



REPRODUCTIVE HEALTH AS A FUNDAMENTAL RIGHT



The Supreme Court of India and several state high courts have made important strides in recognizing the denial of reproductive rights as violations of women’s and girls’ fundamental and human rights. The Right to Abortion without a doubt falls under the area of Article 21 of the Indian Constitution as does the Right to live with deference and choose free choices aside from on the off chance that they interfere with the current strategy for law. Article 21 of the Indian Constitution ensures that every person inside the national district of the Indian nation is guaranteed with the Right to life and Personal opportunity beside as demonstrated by framework developed by law.



Protection of these rights as human rights is essential to enable sexual direction value and the value of women. The Constitution of India sees a significant parcel of these identical rights as focal rights that the law making body has a promise to keep up, including the benefit to value and non-division (Articles 14 and 15) and the benefit to life (Article 21) which is understood through rule to fuse the rights to prosperity, pride, opportunity from torment and misuse, and security. The Constitution of India similarly bears a secured pledge to ensure legitimate answers for encroachment of essential rights and human rights. Article 39(a) requires the organization to raise proportionate access to value and free authentic guide as an approach to ensure that "open entryways for value are not denied to any inhabitant by reason of money related or various impediments."



RIGHT TO REPRODUCTIVE HEALTH:  THE  JUDICIAL PERSPECTIVE



Indian courts have given a few outstanding choices perceiving ladies' regenerative rights as a major aspect of the "basic endurance rights" certainly secured under the key right to life. In certain pivotal decisions, the courts have in any event, just because perceived regenerative rights as basic for women correspondence and have called for regard for ladies' privileges to independence and dynamic concerning pregnancy.



The Puttaswamy judgment specifically recognised the constitutional right of women to make reproductive choices, as a part of personal liberty under Article 21 of the Indian Constitution. The bench also reiterated the position adopted by a three-judge bench in Suchita Srivastava v Chandigarh Administration which held that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity, the Supreme Court recognized women’s reproductive autonomy as a fundamental right, stating that “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.”



In 2011, the High Court of Punjab and Haryana reiterated women’s rights to reproductive autonomy by dismissing a suit filed by a husband against a doctor who had performed an abortion without the husband’s consent saying that “it is a personal right of a woman to give birth to a child, Nobody can interfere in the personal decision of the wife to carry on or abort her pregnancy” Further, in the 2013 case of  Hallo Bi v. State of Madhya Pradesh and Others, the High Court of Madhya Pradesh affirmed the importance of providing victims of rape access to abortion without requiring judicial authorization, stating “we cannot force a victim of violent rape/forced sex to give birth to a child of a rapist.



In 2017, the Supreme Court clarified that abortion at 24 weeks is legal in the case of anencephaly, which is a fatal impairment that also endangers the pregnant woman’s life, stating that her rights to bodily integrity and reproductive autonomy permit her to “preserve her own life against the avoidable danger to it.”



Although state high courts have had mixed rulings, two recent cases in Gujarat and Chhattisgarh have also progressively interpreted the MTP Act to allow abortions past 20 weeks in cases of sexual violence. In the 2016 case of High Court on its Own Motion v. State of Maharashtra, the Bombay High Court ruled to improve women prisoners’ access to abortion and strongly affirmed women’s rights to abortion as an aspect of the fundamental right to live with dignity under Article 21. The judgment recognizes that unwanted pregnancies disproportionately burden women and states that forcing a woman to continue a pregnancy “represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”


CONCLUSION



Over the years, women have made great strides in many areas with notable progress in reducing gender gaps. Yet realities of women and girls getting trafficked, maternal health, deaths related to abortion every year has hit hard against all the development that has taken place, even negating it sometimes. The scope of Reproductive Rights in India needs to be broadened by bringing into its ambit access to maternal care to safe abortions, access to contraceptives, recognition of adolescent sexuality and by removal of stigma and discrimination against women and girls. A woman’s reproductive and sexual health shapes her reproductive choices. Though MTP Act is forward looking, empathetic and looks at a very sensitive issue with a human face, it still needs to be reformed so that it can be more inclusive and sensitive towards the plight of women in the society including rape victims, teenage girls within their ambit who are forced to conceive by their families at the tender age of 15-16 or sometimes even below that in cases of child marriage.


The cases above delineate the critical and advancing job the legal executive can play in India to address the lawful and pragmatic hindrances which work to deny women and girls their regenerative rights. The vigorous acknowledgment of regenerative rights as basic rights rising up out of Indian courts has made an order for the legislature to move away from populace control draws near, stand up to prejudicial generalizations that limit ladies' power, and rather focus ladies' privileges to pride, independence, and real respectability in conceptive well- being related laws and approaches.


-SUBMITTED BY-

Sonal Sengar 

HNLU, Raipur 

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