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MTP Act- The Flag Bearer of Unconstitutionality

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Pritish Kishore, Maryada Sharma,Prabhanshu - B.A LL.B (Hons.) Chanakya National Law University, Patna

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It is well settled that when a law is challenged, the first duty of the court is to examine the purpose and the policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from an examination of it's title, preamble and provisions.

In order to understand the basis on which the MTP Act is premised, it is necessary to identify the two main driving forces behind the Act, those being:

1) Those who were proponents of family planning and population control and saw the legalization of abortion as a potential way of lowering the birth rate.

2) Those who were concerned with abortions being conducted by non-qualified, untrained and ill-equipped medical practitioners under unhygienic conditions and therefore were concerned with the health factor.

Hence female foeticide at that point of time was, not considered an issue at all, which justifies the fact that not a single section in the entire act deals specifically and expressly with the problem. The objective of the act, as given at the onset of the act itself, is essentially confined to dealing with the termination of certain pregnancies by registered practitioners and matters connected therewith and incidental thereto and does not extend beyond this. Section 3 of this act, which talks about when pregnancies may be terminated by registered medical practitioner, may be summed up as follows- pregnancies can be terminated by registered medical practitioners where the pregnancy is not more than twelve weeks or where the pregnancy is more than twelve weeks but less than twenty weeks, at least two medical practitioners are of the opinion formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health. Pregnancy of any woman who has not attained the age of eighteen or who is eighteen but is mentally ill , shall be carried out after obtaining the consent of her guardian in writing. However, all these clauses may be misutilized by doctors or the parent’s as it is important to note that the section mentions that the registered medical practitioner must act in good faith. In a country like India, where citizens abide or do not abide by laws as per their wishes, where authorities expected to maintain law and order may be bribed, most doctors do not realize that their patient’s well-being is their top priority and that whatever they do is to be done for the maximum benefit of his patients, often do not act in good faith.

Secondly it is to be kept in mind, that rape is an evil, women have suffered not only in the hands of outsiders and unknown people, but also in the hands of family members and near relatives. However very few cases dealing with the second category have been reported so far, because it tarnishes the family name. Such circumstances are usually hushed up and the girl is taken to shady hospital, using unhygienic condition to abort the foetus. Looking at the clause from another angle, a particular family may frame up such an incident in order to get a female foetus aborted . And the doctor understanding the gravity of the situation would do this work as secretively as possible in order to guard the privacy of his patient and thus the whole incident would be away from the eyes of police and law.

In other case where a couple has taken certain precaution to avoid future pregnancies and already have children, but still have conceived, they are allowed to have an abortion done. However , a close study of the clause will show that where a couple already have a girl child and the woman has conceived another female foetus, they may use this clause to get foetus aborted as it is exclusively their decision whether to increase their family or not . There are about 20000 registered ultrasound clinics in the country and several hundred unregistered ones, especially in rural areas which can guarantee about the sex of their foetus and help them out.

In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare , the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that ‘life’ exists in the foetus while in the womb of the mother in this context article 21 of the constitution of India is applicable to unborn person as well. thus it can be considered as the greatest argument for validating the MTP act as unconstitutional.

As life begins at or near conception and the obligation of the state to protect such life begins from the moment of conception under article 21, the state cannot permit the deprivation or destruction of such ‘life’ without the authority of law and without following just, fair and reasonable procedure under such law. Foetus is a separate and distinct legal entity existing in the womb of the pregnant mother and its destruction without following the provisions of article 21 under a law like MTPA, 1971 would tend to make such law unconstitutional, invalid, illegal and null and void. The medical termination of pregnancy act, 1971 provides the substantive aspect for the deprivation of ‘life’ which exists in foetus, but it fails to provide procedural aspect required under article 21 for such deprivation of life.

Foetus Is A Person And Right To Life Under Art. 21 Is Extended To An Unborn Child….
The right to life which is the most fundamental of all is also the most difficult to define. Certainly it cannot be confined to a guarantee against the taking away of life; it must have a wider application. By the term something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

In case William L. Webster et al V. reproductive health services at el, the supreme court upheld a Missouri statute which declared that “the life of each human being begins at conception” , and that ‘unborn children have protectable interest in life, health and well-being’.

There should be no doubt that a foetus or a child in mother’s womb is not a natural person. But there should be equally no doubt that it is a ‘juristic’ or ‘juridical’ person. In all jurisprudential jurisdictions, a child en ventre sa mere is recognized as a legal person capable of inheriting or otherwise acquiring and holding property and also other legal rights. And there should be no doubt that only a person, whether natural or juristic, is capable of acquiring those rights.

In America, the law of torts abounds in decision where a child has been allowed to maintain action for injury sustained before its birth at any time during the entire period of gestation and it is now firmly established that any injury caused to the foetus is to be regarded as personal injury to the child. In India under the Hindu law, a son is entitled to have reopened the partition of the ancestral property taking place while he was in the mother’s womb without keeping any share reserved for him. In the law of wills, both in India and in England, a child in the mother’s womb is considered to be in existence and section 99(1) of the Indian succession act 1925, clearly provides that “all words expressive of relationship apply to a child in the womb who is afterwards born alive”. The madras high court in a decision as early as in 1886 in Queen Empress V Ademmia pointed out that lexically as well as logically; an unborn child is a person having life.

Life before birth in a mother’s womb is a physiological phenomenon. The American Supreme Court in Jane roe v Henry wade, has no doubt denied a foetus to have natural personality; but the court did not, as it could not, deny the existence of life in it. Even though the court ruled that the state’s interest in the foetus becomes compelling only when it becomes viable, it was not ruled that life in a foetus begins only from the stage of its viability.

Whether an unborn person has right to born?

It has been accepted that life in a foetus does not commence from the stage of viability only, but that it comes into existence even when it is in rudimentary or embryonic stage and from time to time of, or at any rate, within seven to fourteen days of fertilization. It has now been accepted by the medical and physiological scientists that the foetus starts to have spontaneous growth and development from the very beginning which are the surest and universally accepted criteria of life.

If the life is supposed to exist from the moment of conception, the right to birth must also commence from that stage only. Article 21 of the Indian constitution may be interpreted to mean that the word ‘person’ applies to all human beings including the unborn offspring at every state of gestation. The state cannot discriminate against persons who are fetuses by offering them less or no protection than other persons. Therefore, the state is under obligation under article 21 not only to protect the life of the unborn child from arbitrary and unjust destruction but also not to deny it equal protection under article 14 of the Indian constitution.

The madras high court considered some important views on the subject quoting an article ‘legal protection for the unborn child’ in the following words:

The fact that the unborn child is physically dependent on its mother prior to birth need not lead to the assumption that it has no relevant separate existence nor to the assumption that it has no legal or moral significance.
Amongst others, the rights of a child en ventre sa mere in the family property and inheritance are very well recognized. A child in the womb of the mother is for most purposes regarded in English law as being already born, but in Hindu law a child in his mother’s womb is equal in many respects to a child actually in existence.

Can The Mtp Act, 1971 Be Challenged On The Ground Of Violation Of Article 14?
The Objects and Reasons of the Medical Termination of Pregnancy Act, 1997 (for short, "MTP Act") read with Section 3(2)(i) thereof permit termination of pregnancy of a woman by a registered medical practitioner if the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health. Explanation II to Section 3 states that where any pregnancy occurs as a result of failure of any devise or method used by any married woman or her husband for the purpose of limiting the number of children, anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. However, under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a woman having children of the same sex is not allowed to use the prenatal diagnostic techniques to have children of the opposite sex. The legislature has not taken into consideration the fact that having a child of the same sex as that of the existing child/children also causes grave mental injury to a woman. Whereas MTP Act allows abortion in case a child is conceived on account of any failure of device used by the couple for the purpose of limiting the number of children on the ground that anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman, while enacting the said Act the legislature has not considered what anguish would be caused to a prospective mother who conceives a female child or a male child for the second or third time. The legislature has not appreciated that such anguish must also be termed as grave injury to the mental health of the prospective mother. Thus, there is discrimination between foetus (child) situated in similar position. The said Act, therefore, violates Article 14 of the Constitution of India. The MTP Act and the said Act are Central Acts. If by one statute certain rights are conferred upon a prospective person, the same cannot be denied to a prospective person by another statute originating from the same source. It should be kept in mind that the destruction of the female foetus does not uphold the equality principle enshrined in the constitution of India as held by the supreme court of India in Air India V. Nargesh mirza(1981) For this proposition, reliance is placed on the judgment of the Supreme Court in State of Tamil Nadu and Ors. V. Ananthi Ammal and Ors .
It is well settled that when a law is challenged as offending against the guarantee enshrined in Article 14, the first duty of the court is to examine the purpose and the policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain. The purpose or object of the Act is to be ascertained from an examination of it's title, preamble and provisions.

In Centre for Enquiry Into Health & Allied Themes (Cehat) and Ors. V. Union of India and Ors. , a grievance was made by a Non Governmental organization that the provisions of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 are not properly implemented. After considering this grievance, the Supreme Court has noted that it has already issued directions to secure compliance of the provisions of the said Act. The Supreme Court has issued further directions to the Central Government, State Government and Union Territories to ensure compliance of its earlier directions. If the said action could be done in the above mentioned act, then why can’t it be done in MTP Act.

In Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India (UOI) through the Ministry of Law and Justice and Ministry of Health and Family Welfare , the court says that foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman's right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that the health and strength of women is not to be abused. It ignores Article 51A (e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. Sex selection is therefore against the spirit of the Constitution. It insults and humiliates womanhood. This is perhaps the greatest argument in favour of total ban on sex selection. The court thus keeps the things in a dilemma as at one stage it is saying that there should be a total ban on sex selection whereas on the other hand it is keeping the doors open for the people through MTP Act. If things should be made right, then court has to look at the other aspect too. Court says that MTP Act can’t be challenged as, The object of the Act being to save the life of the pregnant woman or relieve her of any injury to her physical and mental health, and no other thing, it would appear the Act is rather in consonance with Article 21 of the Constitution of India than in conflict with it. This act does not heed any importance to the foetus which is in the womb, saying that it can’t be said as a person. Whereas in an English case R V. Tait, the court of appeal quashed the conviction of a burglar on the ground that ‘threat to kill a foetus’ is not an offence directed against the another person. In another case R V. Sullivan, midwives who attended the delivery of a foetus that failed to survive birth were charged with the offence of criminal negligence of causing death to another person (foetus). The unborn child need not reach the stage of viability to maintain an action for recovery of damages under the law of torts . Thus the unborn child to whom live birth never comes is held to be a person who can be the subject of an action for damages for his death. The law of succession also for many purposes treated a child in the womb equal to a person in existence. The fact that the unborn child is physically dependant on its mother prior to birth need not lead to the assumption that it has no separate existence nor to the assumption that it has no moral or legal significance. Therefore, the state is under obligation under Article 21 not only to protect the life of the unborn child from arbitrary and unjust destruction but also not to deny it equal protection under article 14 of the Indian constitution.

Whether Sec 3(2) Of The Mtp Act 1971 Infringes The Basis Of Right To Privacy?
A law to be valid must confirm with the constitutional norms. The unconstitutionality of a statute arises from various constitutional violations . e.g.
i. Violation of the scheme of distribution of powers between the centre and the states.
ii. Infringement of fundamental rights.
iii. Violations of other constitutional restrictions/ limitations.

The fundamental rights being entrenched by the constitution can’t be violated by the legislature. It follows that a court which is empowered to apply and enforce the supreme law would be bound to strike down the ordinary law which violates any fundamental rights and to that no legal consequences may ensure from such void law. But it would be only in that condition when it violates any of the fundamental right. Also it does not come into any of the criteria as mentioned above. Since the function to determine whether a law made by the legislature is inconsistent is a judicial function , hence this contention has been raised in the paper.

Well, the first contention which this article would like to raise is that it has not arrived in with the plea of striking down the whole act, but one of the sections of the act on the ground of infringement of Right to privacy. A direct case on privacy came before the Andhra Pradesh High court in T. Sareetha v. T. Venkata Subbaiah. The court held the right to privacy as a fundamental right. Justice Choudhary extended the protection of privacy to inhuman and degrading treatment of forcible sexual cohabition. The freedom to choose partner for sexual act was included into enjoyment of life. The freedom to choose partner for sexual act was included into enjoyment of life. The court extended this concept of sexual autonomy of Hindu wife and struck down section 9 of the Hindu Marriage Act, which provided for restitution of conjugal rights. The court observed that by this matrimonial remedy ‘during a moment’s duration the entire life style would be altered and even destroyed’ without her consent. This situation was treated as a violation of individual dignity and right to privacy. The privacy right was again treated as a part of Article 21 of the constitution.
Under the Indian Constitution, the presumption gives rise to rules of divide or shifting onus in view of the provisions in the Cls. (2) – (6) of the Art. 19, that a restriction on any of the fundamental rights guaranteed by Cls. (1) shall be valid only if two conditions are satisfied:-
a. The restriction has been imposed on any of the permissible grounds, e.g., public order or other interests of the general public.
b. That such restriction is reasonable.


For any statute to be constitutionally valid both the above conditions are to be fulfilled. If any of the condition is not fulfilled then that statute passed by the legislature will become void and ineffective.

Different names have been given to the Right to privacy at different times, viz., privileged communications, withholding of documents, domestic affairs, matrimonial rights, etc.

The supreme court of India in some decisions has developed various rights, interest in all cases similar to privacy, i.e., right of free enjoyment, right to sleep, right to human dignity, right to have access to justice, etc. under the concept of personal liberty in article 21 of the constitution. But it does not cover at, one place, all the interests in the privacy which need protection.

Right of privacy would preclude embarrassing question to be put to female candidates as modesty and self respect may preclude the disclosure of personal problems.

It is therefore established beyond doubt that there is a legal right of privacy. Privacy is of so great and important value that its protection under the law of torts is a mistake. Article 21 has received its widest amplitude in recent years. In view of the expansive interpretation of this Article it includes many aspects of privacy in relation to marriage, sex and family under the garb of human dignity and enjoyment of life. Every individual has a right to privacy as part of his or her overall right to live with dignity without being interfered by any exercise of any fundamental freedom. Any unjustifiable interference with his right to privacy has to necessary lead to legal consequences; if not, there will be no meaning for individual right at all. As one of the basic human rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others. Right to privacy is not enumerated as a fundamental right in our Constitution but has been culled out of the provisions of Article 21 of the constitution and other provisions of the constitution relating to the fundamental rights read with the directive principles of state policy.

A more elaborate appraisal of this right took place in a later decision of the Supreme Court in Govind v. State of M.P., where the supreme court traced the origin of the right and also pointed out how the said right was dealt with by the United States Supreme
Court in a number of cases including Griswold v. Connecticut , Jane Roe v. Henry Wade , Munn v. Illinois and Wolf v. Colorado .
It hampers morality and reputation of the women.

Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child bearing. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education amongst other matters.

In fact, the affirmation of fundamental human rights by the universal declaration of human rights (herein after referred as UDHR adopted by the General Assembly of the United Nations in December 1948, has motivated most independent states to guarantee fundamental human rights. The UDHR guaranteed the right to privacy. Article 12 of UDHR reads:

No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The whole section 3(2) of the MTP act raises a question which can be derogatory for any woman’s honour and reputation. Section 3(2) of the MTP Act says that:

Abortion can be followed under two conditions:
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.

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 woman.

Now, dealing with the first provision of section 3 (2) which deals, with when can abortions be performed, the council wants to cite a very landmark case of Phoolan Devi v. Shekar Kapur, in which the right of privacy was dealt with as under:
As a matter of fact, Edward Shils maintains that privacy is a zero relationship between two persons or two groups or between a group and a person. It is a ‘Zero-relationship’ in the sense that it is constituted by the absence of interaction or the communication or perception within contexts in which such interaction, communication or perception is practicable, such as a family , a working group and ultimately a whole society. Privacy may be the privacy of a single individual, it may be the privacy of two individuals, or it may be the privacy of three or numerous individuals. But it is always the privacy of those persons, single or plural, vis-à-vis other persons. It is implicit in the right to privacy as to what extent her thoughts, sentiments, emotions, shall be communicated to others. In India, explicit display, graphic detail of being paraded nude, rape and gang-rape does not only hurt the feelings, mutilate the soul, denigrate the person but reduces the victim to a situation of emotional abandonment which is the very essence of personal freedom and dignity.

Rape is not only a crime against the person of woman (victim); it is a crime against the whole society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Now enquiring about it by doctors under the power given through law, it is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21.

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Now, the second condition in which Abortion can be performed is that 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 woman. A direct case on privacy came before the Andhra Pradesh High court in T. Sareetha v. T. Venkata Subbaiah. The court held the right to privacy as a fundamental right. Justice Choudhary extended the protection of privacy to inhuman and degrading treatment of forcible sexual cohabition. The freedom to choose partner for sexual act was included into enjoyment of life. The freedom to choose partner for sexual act was included into enjoyment of life. The court extended this concept of sexual autonomy of Hindu wife and struck down section 9 of the Hindu Marriage Act, which provided for restitution of conjugal rights. The court observed that by this matrimonial remedy ‘during a moment’s duration the entire life style would be altered and even destroyed’ without her consent. This situation was treated as a violation of individual dignity and right to privacy. The privacy right was again treated as a part of Article 21 of the constitution.

In Eisenstadt v. Baird the United State’s Supreme Court expanded the right of privacy. It is true that in Griswold the right to privacy in question is inhered in the marital relationship. Yet a marital couple is not an independent equity with mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, It is the right of the individual, married or single to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Hence, it is crystal clear that section 3(2) of the MTP Act, hampers the morality and reputation of the women ultimately infringing the Right to privacy.

Authors contact info - articles
The  author can be reached at: pritish.kishor@legalserviceindia.com
Pritish Kishore, Maryada Sharma,Prabhanshu - B.A LL.B (Hons.) Chanakya National Law University, Patna - Ph no: 9470841971

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Date of Publication: 04/29/09

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