Nand Kishore Sharma and Ors. vs. Union of India and Anr.

AIR 2006 Raj 166, 2006 WLC Raj UC 411
Download Judgment: English
Country: India
Region:
Year: 2006
Court: High Court of Rajasthan
Tags: Right to Liberty and Security of Person, Right to Life, Sexual and reproductive health

The petitioner, a social activist, filed a writ petition to challenge the constitutionality of the Medical Termination of Pregnancy Act, 1971. Specifically, the petitioner alleged that Section 3(2) (a) and (b), and Explanations 1 and 2 which allow termination of pregnancy in exceptional cases after receiving the opinion of the registered medical practitioner, violated the Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution of India.

The Court dismissed the writ petition holding that the Medical Termination of Pregnancy Act, 1971, did not violate Article 21 of the Constitution of India.
The Court noted that the petitioner’s argument assumed that the Act was enacted to legalize abortions, but the Act only allowed termination of pregnancy in specific circumstances, in the interest of the health of the woman or the fetus. The Court observed that the primary objective of the law, as laid down in the Statement of Objects and Reasons of the Act, was to protect the pregnant woman from death or injury of her physical or mental health, or to prevent deformities if the child were born.
The Court emphasized that the Act limited the circumstances under which the pregnancy can be terminated, therefore abortions were not unregulated, and that there were other statutes that allowed for the termination of pregnancy, including SS. 312 and 315 of the Indian Penal Code. Section 312 allows for termination to save the life of the pregnant woman, while section 315 protects acts done to prevent a child from being born alive if done to save the life of the pregnant woman. The Act was enacted to make the legal framework surrounding termination of pregnancy more effective and stringent rather than to permit blatant and unregulated termination of pregnancy.

Para 5: “…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.”
Para. 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.”
Para. 11: “Section 312 of the IPC made causing miscarriage an offence except in good faith for the purpose of saving the life of the woman...Section 3 of the Act provides the guidelines or limitation within which the pregnancy could be terminated.”

Constitution of India, Article 21: “No person shall be deprived of his life or personal liberty except according to a procedure established by law” Medical Termination of Pregnancy Act, 1971, Section 3: “When pregnancies may be terminated by registered medical practitioners: (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 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. Explanation 2. –Where any pregnancy occurs as 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.” Indian Penal Code, 1860, 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 imprison¬ment of either description for a term which may extend to seven years, and shall also be liable to fine.” Indian Penal Code, 1860, 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 that 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.”
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