Raipur: The Supreme Court’s 2022 decision in X vs Principal Secretary was a milestone judgment in India’s abortion rights jurisprudence, underlining that a woman alone would have autonomy to take decisions about her body, including whether she wanted to undergo an abortion.
However, various high courts and—sometimes—even the Supreme Court continue to deny abortion without a proper consideration of the woman’s circumstances and her decisional autonomy. A list of such cases can be found here.
For instance the Orissa High Court in November 2021 had denied permission for abortion to a sexual survivor who was 26 weeks pregnant by relying on a medical board’s opinion, which said that continuing the pregnancy—a result of rape—would have no adverse effect on the mental or physical health of the woman.
The Delhi High Court in May 2024 and the Kerala High Court in November 2022 denied permission to terminate advance-stage pregnancies on the ground that the reason for seeking termination (socio-economic difficulties) is not covered under the Medical Termination of Pregnancy (MTP) Act 1971.
These decisions are inconsistent with various orders from the Supreme Court and other high courts where the courts have read the MTP Act broadly and allowed termination in such cases after considering the effect continuation of an unwanted pregnancy would have on a pregnant woman.
My analysis of 24 cases over a period of three years (2022 - 2024) draws particular attention to the Chhattisgarh High Court’s adjudication in abortion matters with an attempt to identify and highlight the gaps in implementation of the law and its misguided application, leading to abortion becoming a complicated, time-consuming and intimidating process.
Despite clear provisions under the MTP Act that they do not need to, pregnant women frequently approached the Chhattisgarh High Court—on average the High Court deals with one abortion-related matter every two months—for permission.
Delays In Decisions
When 14-year-old V* and her parents wanted to terminate her unwanted pregnancy of 16 weeks, they were told by the government doctor at the district hospital that they required police permission to proceed since the pregnancy of a minor is a criminal matter.
The doctor intimated the local police about the pregnancy and a first information report (FIR) under the Protection of Children from Sexual Offences Act (POCSO) 2012 was registered.
The police directed V and her parents to approach the District Legal Services Authority (DLSA) for help, asserting that court approval was needed for the abortion.
The DLSA filed an urgent anonymous application before the Chhattisgarh High Court on behalf of V, seeking termination of her pregnancy.
The High Court heard the case, examined V’s medical records, and after a week of proceedings permitted termination and directed the district hospital to carry out the procedure.
Finally, V was able to terminate her pregnancy, but only after a delay of two months from the time she first approached the government doctor to seek an abortion.
None of this should have happened.
The Abortion Law
The Medical Termination of Pregnancy Act 1971 or the MTP Act, is the key legislation that regulates the circumstances under which abortion can be legally carried out in India.
Section 3(2) of the Act says that any pregnant woman (including a minor) can terminate an unwanted pregnancy when the length of the pregnancy has not exceeded 20 weeks.
When the length of pregnancy exceeds 20 weeks but not 24 weeks, certain categories of women mentioned in Rule 3B of the MTP Rules 2021, including minors and survivors of sexual abuse, can terminate their unwanted pregnancy by approaching a public hospital or any duly approved private facility.
Reproductive rights activists have been advocating for a change in this provision to include all pregnant persons in this category (here and here) so that abortion access is not seen as a prerogative of women under “severe” circumstances but available to anyone who wishes to terminate their unwanted pregnancy.
The Supreme Court in 2022 clarified that Rule 3B should be read broadly and the material circumstances that would affect their decision to continue pregnancy should be considered to ensure that other categories of women not included are not denied access to abortion.
The law also requires that a registered doctor [two doctors when the length of pregnancy has exceeded 20 weeks but not 24 weeks] records their opinion that the person’s pregnancy satisfies one of the conditions mentioned in section 3(2) of the MTP Act.
These conditions include diverse circumstances, such as the pregnancy being a result of rape or failure of contraceptive devices and circumstances where continuation of the pregnancy would have an adverse impact on the mental and physical health of the pregnant person.
The law does not require abortion seekers, even when they are minors or sexual violence survivors, to seek permission from the police or the courts for abortion, prioritising as it does their consent and health.
However, when the length of pregnancy exceeds 24 weeks, the MTP Act allows for termination in only limited circumstances which include when substantial foetal abnormalities have been diagnosed—section 3(2B)---or there is an immediate danger to the life of the pregnant person (section 5).
Pregnant women seeking abortion when their pregnancy has exceeded 24 weeks—and when their circumstances are not covered under the Act— often approach constitutional courts to seek permission for termination and to enforce their fundamental right to access abortion services.
Unnecessary High Court Involvement
Between 2022 and 2024, 18 pregnant women approached the High Court for abortion when their pregnancy was within the legal threshold of 24 weeks. In 11 of these cases the length of their pregnancy of the Petitioner was less than 20 weeks and in five of them it was less than 15 weeks.
In a majority of these cases, the abortion seeker was either a minor or a survivor of sexual abuse and therefore should have been able to easily access abortion services by approaching any public hospital.
Instead, abortion seekers were made to run from pillar to post to be able to access this essential and legal medical procedure.
Abortion cases end up coming before the High Court because pregnant women seeking abortion are either being “advised” by the local police to approach the Courts for permission or because they are being denied abortion by doctors or any other authority considering abortion of a minor or sexual violence survivor to be illegal.
Studies have also found that local authorities deny abortion services to pregnant persons, especially sexual violence survivors, minors and unmarried women, due to the associated stigma and an unfounded apprehension of adverse criminal consequences.
These cases highlight a pattern of local stakeholders, such as doctors and the police and other authorities, including district judges, the DLSA, and the Child Welfare Committee (CWC) abdicating their responsibility and ignoring the law.
High Court’s Problematic Approach
The problem with implementation of the MTP Act is not limited to the issue of pregnant persons having to approach the High Court. It extends to the High Court’s application of the law and adjudication in such cases.
While reading abortion cases heard by the High Court during 2022-2024, it is clear that the judges have interpreted the law incorrectly and ordered medical examinations for pregnant women when it was not required.
Even when a petitioner whose pregnancy is within the legally permissible gestational age limit (24 weeks) approached the High Court, instead of clarifying that such cases do not require court intervention, judges admitted and adjudicated on such cases.
The Chhattisgarh High Court also did not call out local authorities for their unlawful conduct, thus normalising the practice of forcing abortion seekers to get permissions from court.
In many judgments , the Chhattisgarh High Court even mentioned pre-2021 amendment provisions of the MTP Act which had lower gestational limits for which abortion could be permitted. In one case in 2023 where the High Court had denied termination, it also passed a careless statement that “abortion is a crime in India”. This is a misleading statement since the MTP Act legalises abortion, and only abortion done without the consent of the pregnant person or in violation of the MTP Act would be unlawful or criminal.
Even though, ultimately, the Chhattisgarh High Court allowed termination of pregnancy in most cases, these decisions are not based on correct application of the law.
As discussed earlier, the law on abortions requires only one or two registered doctors (depending on the length of pregnancy) examine the pregnant woman and form opinions on whether the conditions under the MTP Act are being met.
Only in cases where the length of pregnancy exceeds 24 weeks, the law requires examination by a Medical Board consisting of four specialists.
Although the law does not demand it, the Chhattisgarh High Court in almost all the cases ordered a fresh medical examination of the woman seeking abortion by an expert panel of doctors or a Medical Board.
However, in two cases where the length of pregnancy of the Petitioner had exceeded 24 weeks, the High Court did not direct examination by a Medical Board—as the Act prescribes—but a team of doctors (here and here). The High Court then called for the medical reports to assess and determine whether the pregnant person is fit for abortion.
Other than the fact that such examination and assessment is the prerogative of the medical doctors and should be done in accordance with law and medical protocol, the Chhattisgarh High Court’s approach also causes delay. For instance, in many cases, the pregnant woman had to wait for a week or two or even a month before the high court gave its final decision.
Abortion is a time-sensitive matter, where delay can lead to health risks, and in some cases, even make the abortion impossible.
The practices identified and discussed in this article are not unique to Chhattisgarh and are evident nationwide, as I said.
The fact that the constitutional courts are passing decisions that are inconsistent with the established jurisprudence and even the legislation highlights the issue with allowing judicial authorisation of a healthcare service such as abortion.
The courts have also been failing to hold district and local level stakeholders accountable which is particularly problematic and requires urgent attention since it may perpetuate a wrong understanding of the law.
This reality should be a moment of serious reckoning for the state and the judiciary.
The government needs to realise its failure in proper implementation of the MTP Act and needs to engage with stakeholders at all levels—from the top constitutional courts to the bottom—grassroots healthcare service providers—to ensure the law’s effective enforcement and safeguard the reproductive rights of all individuals.
*Identity withheld
(Dewangi Sharma is a research associate at the Centre for Social Justice and works with young lawyers in Chhattisgarh to increase access to justice.)
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