2005 Supreme(Raj) 2420
RAJESH BALIA, S.N.JHA
Nand Kishore Sharma – Appellant
Versus
U. O. I. – Respondent
Advocates Appeared:
Mr. D.R. Bhandari, for the Petitioner.
Mr. V.K. Mathur, for U.O.I.
Mr. N.M. Lodha, AAG, for the State.
Judgement Key Points
- The petitioner challenged the vires of the Medical Termination of Pregnancy Act, particularly Section 3(2)(a), Section 3(2)(b), and Explanations I and II to Section 3, claiming they are unethical and violative of Article 21 of the Constitution. (!)
- The Act permits termination of pregnancy by a registered medical practitioner notwithstanding provisions of the Indian Penal Code, if done in accordance with the Act. (!)
- Termination is allowed where pregnancy does not exceed twelve weeks by one registered medical practitioner, or between twelve and twenty weeks by at least two registered medical practitioners forming an opinion in good faith. (!) (!)
- Termination is permissible if continuance of pregnancy involves risk to the life of the pregnant woman or grave injury to her physical or mental health, or substantial risk of serious physical or mental abnormalities in the child if born. (!) (!)
- Explanation I presumes anguish from rape-induced pregnancy as grave injury to the pregnant woman's mental health. (!)
- Explanation II presumes anguish from unwanted pregnancy due to failure of contraception used by married woman or her husband as grave injury to mental health. (!)
- In assessing risk to health, the pregnant woman's actual or reasonably foreseeable environment may be considered. (!)
- Termination of minors under 18 or lunatics requires written guardian consent; otherwise, requires pregnant woman's consent. (!) (!)
- The Act's dominant object is to save the pregnant woman's life, relieve injury to her physical/mental health, or prevent deformities in the child-to-be-born, aligning with Article 21. [17000032080004][17000032080005][17000032080006] (!)
- The Act liberalizes termination on health measures, humanitarian grounds (e.g., rape), and eugenic grounds (risk of deformities). (!)
- Termination is strictly regulated: up to twenty weeks, by registered practitioners, with safeguards like good faith opinion of two for later gestations. [17000032080007]
- Prior to the Act, Indian Penal Code Sections 312 and 315 allowed termination/miscarriage only in good faith to save the woman's life. [17000032080008] (!) (!)
- The Act addresses deficiencies in prior law by providing guidelines for safe, regulated termination rather than permitting unrestricted abortions. [17000032080009][17000032080010] (!)
- The challenged provisions are valid and not violative of Article 21; writ petition dismissed. [17000032080011]
Judgment
S.N. Jha, C.J.-The petitioner, who claims to be a social activist, has filed this writ petition as a Public
Interest Litigation questioning the vires 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 legalise abortions but from a bare reading of t
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