Earlier there used to be huge number of induced abortions and due to unsafe
abortion, the maternal mortality rate was increasing quickly, so in order to
control these unsafe abortions the government in 1960 constituted a committee,
Shantilal Shah Committee
for the legalisation of abortion in India.
In 1971 due to increase rate of unsafe abortion resulting in high number of
maternal mortalities the Medical Termination of Pregnancy act (MTP)
 came to
force. MTP act legalised abortion in India. Before this act, abortion was a
criminal offence due to which many unsafe and illegal abortions took place.
Section 312 of the Indian Penal Code (IPC) , 1960 talks about causing
. According to this section if a person voluntary causes a woman
with child to miscarry without acting in good faith in order to save the life of
woman then that person will be liable to pay fine or be imprisoned which may
extend to 3 years or both, and if the pregnant woman has reached to advance
stage of pregnancy, that is, movement of foetus has started or the embryo has
taken place and in these circumstances if a person causes miscarriage then
he/she will be punished with imprisonment which may extend to 7 years and also
be liable for fine.
Section 313 of the IPC deals with "miscarriage without consent". If a person
commits an offence mentioned in section 312 above without the consent of
pregnant women, then that person will be punished with life imprisonment or be
imprisoned which may extend to 10 years and will also be liable for fine. The
offence under this section is non-bailable offence as there is deliberate motive
to kill the child.
Therefore, in order to legalise abortion in India the Medical Termination of
act came into force and this act is exception to section 312
and 313 of the Indian Penal Code, 1960 and this act lays down the rules for
MTP act from 1971 to 2021
This act provides rules and regulations for termination of pregnancy which
should only be carried by registered medical practitioners (medical practitioner
who acquires any recognized medical qualification as defined in section 2 (h) of
the Indian Medical Council Act, 1956). This act came in 1971 and the latest
amendment was made in 2021. The different sections of this act lay down rules
for termination of pregnancy.
Conditions under which pregnancy can be terminated by registered medical
Section 3 (2) of this act tells under which conditions pregnancy can be
- When the length of pregnancy is within 20 weeks, it can be terminated by
1 registered medical practitioner.
- When the length of pregnancy exceeds 20 weeks but is less than 24 weeks
then it can be terminated by at least 2 registered medical practitioners.
In both the above case, pregnancy is terminated by medical practitioner if
that pregnancy causes physical and mental damage to women which can be due to
failure of any contraceptive method or devices for preventing pregnancy. If the
woman is a rape victim and is pregnant then pregnancy can be terminated as this
can cause grave mental and physical injury to her. So, pregnancy can be
terminated if it is injurious to women physically or mentally.
Section 3 (2) (4) states that no pregnancy shall be terminated without the
consent of pregnant woman and in case of minor or lunatic termination can only
take place after takin consent of their guardian in written.
Medical board consisting of a Gynaecologist, a Paediatrician, a Radiologist or
Sonologist; and some other members should be present in every state and union
territory. termination is necessitated by the diagnosis of any of the
substantial foetal abnormalities diagnosed by a Medical Board. The length of
pregnancy is not considered or taken into account if the foetus has
abnormalities diagnosed only by medical board.
Place where termination of pregnancy can take place:Section 4 of this act tells us that pregnancy can only be terminated in:
- A government hospital.
- Any other place approved by government for carrying out termination.
Exception to Section 3 (length of pregnancy) and Section 4 (place of
termination of pregnancy):
Section 5 (1) states that only registered medical practitioner can terminate
pregnancy during any time period of pregnancy irrespective of the condition
mentioned in section 3 and at any place irrespective of condition mentioned in
section 4 if the termination of pregnancy is necessary for saving the life of
Section 5 (2) states that if termination of pregnancy is carried out by
non-registered medical practitioner the it is a punishable offence under the
Indian Penal Code, 1960.
This section also mandates that the privacy of woman should be protected. The
name of the women should not be revealed whose pregnancy has been terminated
except to the person authorised by law and if name is revealed to any other
person, then it is a punishable offence and the practitioner shall be imprisoned
which may extend to 1 year or be liable for fine or both.
Power to make rules regarding this act:Section 6 of this act gives power to make rules:
- To the Central Government by notification in the official gazette and
every rule made should be presented before each house of parliament and by
the consensus rule is made.
- The rules made above provide for matters like- training or experience of
registered medical practitioner which he should possess to carry out
termination of pregnancy.
- Rules can be made for the purpose of defining powers and functions of
Regulations made by State Governments:According to section 7 of this act State government may by regulation:
- Can take any opinion about the act by registered medical practitioner.
- Any information furnished about the act shall be given to Chief Medical
Officer of the state.
Protection of medical practitioner:
Section 8 speaks about the protection of registered medical practitioner that no
legal proceedings shall lie against any registered medical practitioner who
acted in good faith and any damage is caused which was inevitable then no suit
will lie against the medical practitioner.
These are rules and regulations laid down by Medical Termination of Pregnancy
act for termination of pregnancy.
Judicial intervention in cases of Abortion:
There have been various cases in relation to abortion because MTP act puts
forward various conditions for abortion which sometimes are hard to be
fulfilled. There are several cases in High Courts and Supreme Courts where the
medical board rejects permission for abortion after the gestational period (24
weeks) mostly in cases of sexual assault and foetal abnormalities.
One of the landmark cases related to abortion is about Right to Privacy of a
women which was laid down by the 9 nine Judges bench of the apex court of India
in Justice KS Puttaswamy (Retd.) v. Union of India, 2017. In this case
Supreme Court came out with a decision that Right to Privacy is a Fundamental
right guaranteed by Article 21 of Indian Constitution and everyone shall have
access to it and therefore a pregnant woman has the right to choose whether or
not to continue with her pregnancy as it her right to privacy as well as right
to life and liberty under article 21 of Indian Constitution.
There are several petitions for abortion after the gestational period when it is
not accepted by medical. Some petitions are rejected by Courts while some are
allowed to do abortion. The Calcutta High Court granted permission to abort the
child at who was 34 weeks pregnant because foetus was diagnosed with incurable
spinal condition. This judgement is the highest period after which a woman is
granted permission to abort her child by courts in India.
Criticism against MTP act:
This act is criticised because of the conditions that it puts to carry out
abortion. There are several criticisms about this act such as:
- This act puts a time limit for the abortion to take place which is not
adequate and it also infringes the fundamental rights of pregnant woman
like- Right to life, liberty and Privacy as she is not allowed to choose
whether to do abortion or not. She is controlled by the conditions put
forward by MTP act which takes away her rights.
- This act puts forward a very harsh condition to carry out abortion after
24 weeks of pregnancy which should only be carried out if approved by
medical board irrespective of any circumstances. A medical board consist of
gynaecologist but according to a report of Ministry of Health and Family
Welfare on Rural Health Statistics, 2019-20 shows that there is 70%
shortage of gynaecologist in rural areas and according to this act unless
and until medical board approves for abortion, it cannot take place so many
unsafe and illegal abortion takes place due to shortage of specialist and
due to delay in approving abortion by medical board.
- This act gives a narrow definition of physical health and it also
ignores the socioeconomic impact on the birth of child which puts women
under serious physical, mental as well as social stress.
- This act is also criticised because it contradicts Supreme Court's
recognition of autonomy of a woman in respect to her body and privacy.
It is very much necessary that proper and adequate rules and regulations are
made to carry out abortions because abortion is a complicated task and is a work
of delicacy and if it is conducted in an unsafe and illegal manner then the risk
increases manyfold and there are strong chances of increasing maternal
mortality, so rules are required to carry out such works but that rules should
not be very much harsh that people are forced to choose unsafe methods.
The above MTP act can be relaxed more so that safe abortions can took place
easily. The time period mentioned for abortion to take place without
intervention of medical board should be more relaxed to 2 or 3 weeks more and
after that increased time period medical board should come in play.
It is also
very much important to increase the number of specialists which are designated
to carry out abortion by giving them proper training under guidance of
well-established trainers and recruitment of such specialist should be more so
that there is no shortage of doctors especially in rural areas as these areas
are more prone for illegal and unsafe abortions.
In some cases, like in sexual assault, rapes and foetal abnormalities, the laws
should be relaxed more as it puts a tremendous amount of pressure on the mind of
a women and she needs time to recover from these situations, so in cases like
this abortion should be based on discretion of women.
Therefore, women should have the facilities that are easily accessible and the
laws should be that are easily implemented as mentioned above because everyone
has right to liberty and have right over their body and in cases like abortion,
laws should be made such that are women centric and beneficial for her health,
mentally as well as physically.
- Medical Termination of Pregnancy Act, 1971.
- Indian Penal Code, 1960.
- Medical Termination of Pregnancy (Amendment) Act, 2021.
- Justice KS Puttaswamy (Retd.) v. Union of India, 2017, Writ Petition
(Civil) no. 494 of 2012, (2017) 10 SCC1.
- Constitution of India, 1950.
- Rural Health Statistics, 2019-20, Ministry of Health and Family Welfare.