RAJASTHAN HIGH COURT

                  Nand Kishore Sharma

                  Vs.

                  Union of India

                   Civil Writ Petn. No. 2903 of 1998
                  (S.N. Jha, C.J. and Rajesh Balia, J.)

                  22.10.2005

                  JUDGEMENT

S. N. Jha, C. J.

1. The petitioner who claims to be a social activist has filed this writ petition as a
Public Interest Litigation questioning the virus of the Medical Termination of
Pregnancy Act, 1971 (in short, the Act) particularly Section 3(2)(a) and (b) and
Explanations I and II to Section 3 of the Act as being unethical and violative of Article
21 of the Constitution of India.

2. In response to the notice, the respondents have filed affidavits in reply.

3. We heard learned counsel for the parties at length.

4. The issues relating to medical termination of pregnancy in common parlance known
as 'abortion' are indeed of public importance. Counsel for the parties attempted to go
into the length and breadth of the issue. In our opinion, however, the point for
consideration lies in a narrow compass. This Court is not supposed to enter upon a
debate as to when foetus comes to life or the larger question touching upon the ethics
of abortion. We are merely concerned with the validity of the relevant provisions of
the Act. At the outset, it may be mentioned that the petition was sought to be argued
as if the Act has been enacted to legalize abortions but from a bare reading of the
relevant provision it would appear that Act aims at termination of pregnancy in the
interest of the woman or the to-be-born child. Section 3 may be quoted in extenso as
under:

       "3. When pregnancies may be terminated by registered medical practitioners:-
       (1) Notwithstanding anything contained in the Indian Penal Code, a registered
       medical practitioner shall not be guilty of any offence under that Code or under
       any other law for the time being in force, if any pregnancy is terminated by him
       in accordance with the provisions of this Act.
       (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated
       by a registered medical practitioner,-
       (a) Where the length of the pregnancy does not exceed twelve weeks, if such
       medical practitioner is, or
       (b) where the length of the pregnancy exceeds twelve weeks but does not
       exceed twenty weeks, if not less than two registered medical practitioners are,
       of opinion, formed in good faith, that-
       (i) The continuance of the pregnancy would involve a risk to the life of the
       pregnant woman or of grave injury to her physical or mental health; or
       (ii) There is a substantial risk that if the child were born, it would suffer from
       such physical or mental abnormalities as to be seriously handicapped.
       Explanation I- 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.
       Explanation II- 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 pregnant woman.
       (3) In determining whether the continuance of a pregnancy would involve such
       risk of injury to the health as is mentioned in sub-section (2), account may be
       taken of the pregnant woman's actual or reasonably foreseeable environment.
       (4)(a) No pregnancy of a woman, who has not attained the age of eighteen
       years, or, who, having attained the age of eighteen years, is a lunatic, shall be
       terminated except with the consent in writing of her guardian.
       (b) Save as otherwise provided in Clause (a), no pregnancy shall be terminated
       except with the consent of the pregnant woman.

5. On a plain reading, it is manifest that Section 3 permits termination of pregnancy by
registered medical practitioner(s) on being satisfied, in good faith, that the continuance
of pregnancy would involve a risk to the life of the pregnant woman or cause grave
injury to her physical and mental health; or that if the child were born, it would suffer
from such physical or mental abnormalities as would render it seriously handicapped.
As per the Explanation, where pregnancy is caused by rape, the anguish of pregnancy
is regarded as 'grave injury to the mental health' of the pregnant woman. If the
pregnancy occurs as a result of failure of any device or method used by the woman or
her husband for the purpose of limiting the number of children, the anguish caused by
such unwanted pregnancy is also treated as constituting 'grave injury to the mental
health' of the pregnant woman.

6. It would appear that dominant object to achieve which the law has been enacted is
to save the life of the pregnant woman or to relieve her of any injury toward physical
and mental health or prevent the possible deformities in the child - to be born. We find
support from the Statement of Objects and Reasons of the Act, the relevant portion of
which reads as under:

       "There is thus avoidable wastage of the mother's health, strength and,
       sometimes, life. The proposed measure which seeks to liberalize certain
       existing provisions relating to termination of pregnancy has been conceived (1)
       as a health measure - When there is danger to the life or risk to physical or
       mental health of the woman; (2) on humanitarian grounds - Such as when
       pregnancy arises from a sex crime like rape or intercourse with a lunatic
       woman, etc.; (3) eugenic grounds - Where there is substantial risk that the child,
       if born, would suffer from deformities and diseases.

7. 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. While it may be debatable as to when the foetus comes to life so as to attract
Article 21 of the Constitution of India, there cannot be two opinion that where
continuance of pregnancy is likely to involve risk to the life of the pregnant woman or
cause grave injury to her physical and mental health, it would be in her interest to
terminate the pregnancy.

8. The perusal of Section 3 also makes it clear that the Act does not give a carte
blanche to any person, even a medical practitioner, to cause termination of pregnancy.
The Act provides in express terms that the pregnancy can be terminated up to twenty
weeks and only by registered medical practitioner. If the length of pregnancy exceeds
twelve weeks up to twenty weeks, it can be terminated only if a Board of at least two
registered medical practitioners is of the opinion, in good faith, that the continuance of
pregnancy involves risk to the life of the pregnant woman or cause grave injury to her
physical and mental health.

9. An important aspect of the case is that the termination of pregnancy is not
something which is provided for the first time by the Medical Termination of
Pregnancy Act. Section 312 of the Indian Penal Code too protects termination of
pregnancy described as miscarriage; if it is done "in good faith for the purpose of
saving the life of the woman". Similarly Section 315 of the Indian Penal Code protects
any act done with intent to prevent child from being born alive or causing it to die
after its birth "if such act has been done in good faith for the purpose of saving the life
of the mother". To bring home the point, it would be useful to quote Sections 312 and
315 as under:-

       "Section 312. Causing miscarriage,- Whoever voluntarily causes a woman with
       child to miscarry, shall, if such miscarriage be not caused in good faith for the
       purpose of saving the life of the woman, be punished with imprisonment of
       either description for a term which may extend to three years, or with fine, or
       with both; and, if the woman be quick with child, shall be punished with
       imprisonment of either description for a term which may extend to seven years,
       and shall also be liable to fine.

Section 315. Act done with intent to prevent child being born alive or to cause it to die
after birth.- Whoever before the birth of any child does any act with the intention of
thereby preventing the child from being born alive or causing it to die after its birth,
and does by such act prevent that child from being born alive, or causes it to die after
its birth, shall, if such act be not caused in good faith for the purpose of saving the life
of the mother, be punished with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both.

10. It would not be out of place to mention that the deficiency in the Indian Penal
Code as regards termination of pregnancy or abortion was noticed in the Statement of
Objects and Reasons in the following words:

       "The provisions regarding the termination of pregnancy in the Indian Penal
       Code which were enacted about a century ago were drawn up in keeping with
       the then British Law on the subject. Abortion was made a crime for which the
       mother as well as the abortionist could be punished except where it had to be
       induced in order to save the life of the mother. It has been stated that this very
       strict law has been observed in the breach in a very large number of cases all
       over the country. Furthermore, most of these mothers are married women, and
       are under no particular necessity to conceal their pregnancy.

11. Read in the context of Sections 312 and 315, IPC, it would appear that the object
of the Act was to make the provisions relating to termination of pregnancy stringent
and effective rather than to permit blatant termination of pregnancy. Section 312 of the
Indian Penal Code made causing miscarriage an offence except in good faith for the
purpose of saving the life of the woman without laying down the manner in which
pregnancy could be medically terminated. Section 3 of the Act provides the guidelines
or limitation within which the pregnancy could be terminated.

12. In the above premises, we are satisfied that the Act or the provisions particularly
complained of, cannot be said to be invalid, and no case thus is made out for
interference by the Court.

13. In the result, the writ petition is dismissed.
Petition dismissed.