Abortion Laws in India: A Review of Court Cases

This report, published in November 2016 by the Centre for Health Law, Ethics and Technology at Jindal Global Law School, in collaboration with the Ipas Development Foundation India, aims to clarify provisions of the Medical Termination of Pregnancy Act 1971 (MTP Act), to highlight contradictions and gaps in the MTP Act and related laws, including the Pre-Conception Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act) and the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act), and to examine the implications of the language and legal conclusions in abortion judgements. The report outlines the implications the courts’ decisions have on safe abortion services. It presents findings from the Supreme Court, High Court, District Courts and Consumer Forums up to 2016.

The research for the report was conducted using judgements and orders, retrieved from various sources, predominantly Manupatra (a legal database), the National Consumer Disputes Redressal Commission website, and district court websites. Various news articles and stories were also relied upon to get information about the names of parties or case names. The key terms used to search for cases were “abortion”, “section 312”, “section 313”, “medical negligence”, “consumer protection”, “forced miscarriage”, “consent”, “MTP Act”, “sex determination”, “sex-selective abortion” and “PCPNDT”. Some cases were first found by conducting legal research for cases related to abortion on indiankanoon.org and then downloaded from the district court website.

The first chapter reviews cases from the Supreme Court and High Courts on abortion laws in India. These judgments focus on issues of consent pertaining to termination of pregnancy of a married woman, minors, and mentally disabled women, forced abortions, sex determination of fetus, 20-week limit for termination, termination of pregnancy in the case of rape survivors, and abortion rights in the fundamental rights framework.

The second chapter is devoted to cases in district courts, specifically forced abortions, consent, sex determination and medical negligence. One of the key limitations of this report is that many of the district courts’ judgements are not easily accessible; therefore a complete analysis of all the judgements across the country was not possible. The report has thus focused mainly on the cases available on the district court websites of the states of Delhi, Maharashtra, Tamil Nadu and Kerala, in addition to Punjab and Andhra Pradesh. For other states, like Rajasthan and Gujarat, district court cases were not available on the case databases.

Where possible, this compilation provides guidance on implementation of the MTP Act. Women, providers, hospitals, policy makers and activists can use this compilation in three ways:
> to find answers to key MTP Act questions;
> to explore spaces for future or increased advocacy; and
> to design education and training material.