SYNOPSIS

The writ jurisdiction of this Hon’ble Court under Article 32 is

being invoked by means of the present writ petition since it raises
issues of National importance affecting the fundamental right to
safe abortions, right to health , reproductive choice and right to
privacy of women of the country. The issue of safe abortion and
restriction on the reproductive choice of women and other
incidental issues require consideration and urgent resolution by this
Hon’ble Court since it severely, drastically and irreversibly affects
all women of the country and is not a regional issue pertaining to
any particular State.
The present Writ Petition under Article 32 of the Constitution
is filed challenging Section 3(2) ; Explanation 2 to Section 3(2),
Section 3(4) and Section 5 of the Medical Termination of
Pregnancy Act, 1971 (hereinafter referred to as the Act) being
violative of Article 14 & 21 of the Constitution.
Section 3 & 5 of the Act are reproduced below :-
“3. When Pregnancies may be terminated by registered
medical practitioners.- (1) Notwithstanding anything
contained in the Indian Penal Code (45 of 1860), 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
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 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 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 reasonable 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(1). The provisions of section 4, and so much of the
provisions of sub-section (2) of section 3 as relate to the
length of the pregnancy and the opinion of not less than two
registered medical practitioners, shall not apply to the
 termination of a pregnancy by a registered medical
practitioner in a case where he is of opinion, formed in good
faith, that the termination of such pregnancy is immediately
necessary to save the life of the pregnant woman.
(2). Notwithstanding anything contained in the Indian Penal
Code (45 of 1860), the termination of pregnancy by a person
who is not a registered medical practitioner shall be an
offence punishable with rigorous imprisonment for a term
which shall not be less than two years but which may extend
to seven years under that Code, and that Code shall, to this
extent, stand modified.
(3). Whoever terminates any pregnancy in a place other
than that mentioned in section 4, shall be punishable with
rigorous imprisonment for a term which shall not be less than
two years but which may extend to seven years.
(4). Any person being owner of a place which is not
approved under clause (b) of section 4 shall be punishable
with rigorous imprisonment for a term which shall not be less
than two years but which may extend to seven years.
Explanation 1.—For the purposes of this section, the
expression “owner” in relation to a place means any person
who is the administrative head or otherwise responsible for
the working or maintenance of a hospital or place, by
whatever name called, where the pregnancy may be
terminated under this Act.
Explanation 2.—For the purposes of this section, so much of
the provisions of clause (d) of section 2 as relate to the
possession, by registered medical practitioner, of experience
or training in gynaecology and obstetrics shall not apply”.

CURRENT LEGAL FRAMEWORK OF TERMINATION OF

PREGNANCY IN INDIA :
 The current legal framework of termination of pregnancy is
governed by The Medical Termination of Pregnancy Act, 1971,
Medical Termination of Pregnancy Rules, 2003 and Medical
Termination of Pregnancy Regulations 2003.
HISTORY:
The Statement of Objects and Reasons sheds light on the
backdrop in which the Act was enacted. It is stated in the SOR that
it was enacted in view of provisions of Indian Penal Code which
made abortion a crime and 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. This law being too strict was
breached 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. The
doctors were confronted with gravely ill or dying pregnant women
whose uterus had been tampered with a view to causing an
abortion and consequently suffered very severely.
It was further stated that there was thus avoidable wastage of
the mother’s health, strength and sometimes, life. The proposed
measure which seeks to liberalise 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 the
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 and (3) eugenic
grounds – where there is substantial risk that the child, if born
would suffer from deformities and diseases.
FRAMEWORK :
The salient features of the Act are as below :-
(i). A medical practitioner will not be guilty of an offence under
IPC or any other law for the time being in force if any
pregnancy is terminated by him/her in accordance with
provisions of the Act.
(ii). Pregnancy may be terminated by a registered medical
practitioner where the length of the pregnancy does not
exceed twelve weeks if he/ she forms an opinion in good
faith that that-
(a). 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
(b). there is substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to
be seriously handicapped.
(iii). In case of pregnancy exceeding 12 weeks but not
exceeding 20 weeks the said opinion will have to be formed
by two registered medical practitioners.
(iv). Where pregnancy is alleged to be caused as a result of
rape then anguish caused by such pregnancy will be deemed
to be a grave injury to the mental health of the pregnant
woman.
(v). Where pregnancy occurs as a result of failure of any
device or method used by an 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.
(vi). Where termination of pregnancy is immediately
necessary to save the life of the pregnant woman the
restrictions contained in Section 3 and 4 are not applicable.
Right of Reproductive choice is at the core of liberty and
personal autonomy recognized by Article 21 of the
Constitution :
The right to exercise reproductive choice i.e. the right to
choose whether to conceive and carry pregnancy to its full term or
to terminate is it at the core of one’s privacy, dignity, personal
autonomy, bodily integrity, self determination and right to health
recognized by Article 21 of the Constitution as has been held by
this Hon’ble court in Suchitra Srivastav Vs UOI (2009) 9 SCC 1 ,
K.S Puttaswamy (2017) 10 SCC 1 and several other judgments of
this Hon’ble Court.
Right to Health under Article 21
That Right to health recognized by Article 21 also affords
Constitutional protection to the choice exercised by a woman to
choose a course (to terminate or not to terminate) which is less
detrimental to her physical and mental health. The State cannot
compel a woman to continue a pregnancy against her will when
continuance of pregnancy will entail physical, mental and socio-
economic consequences which far outweigh the consequences
that ensue as a result of termination of pregnancy.
STANDARD OF JUDICAL REVIEW :
A Constitutional right can be curtailed only by a law which is
just fair reasonable and proportionate as has been laid down by
this Hon’ble Court in Maneka Gandhi Vs UOI (1978) 1 SCC 248
and further expounded in by a 9 Judge bench of this Hon’ble Court
in K.S. Puttaswamy Vs UOI (2017) 10 SCC 1. A 9 Judge Bench
of this Hon’ble Court held that when State intervenes with the right
of privacy of a person to protect legitimate State interest, the State
must put into place a robust regime that ensures a threefold
requirement. These three requirements apply to all restraints on
privacy. The first being existence of law, second being need in
terms of legitimate State interest which ensures that the law is
reasonable as mandated by Article 14 and third requirement that
the means that are adopted by Legislature which are adopted by
the Legislature are proportional to the objects and needs sought to
be fulfilled by the law.
‘310. While it intervenes to protect legitimate State interests, the
State must nevertheless put into place a robust regime that
ensures the fulfilment of a threefold requirement. These three
requirements apply to all restraints on privacy (not just
 informational privacy). They emanate from the procedural and
content-based mandate of Article 21. The first requirement that
there must be a law in existence to justify an encroachment on
privacy is an express requirement of Article 21. For, no person
can be deprived of his life or personal liberty except in
accordance with the procedure established by law. The
existence of law is an essential requirement. Second, the
requirement of a need, in terms of a legitimate State aim,
ensures that the nature and content of the law which imposes
the restriction falls within the zone of reasonableness mandated
by Article 14, which is a guarantee against arbitrary State action.
The pursuit of a legitimate State aim ensures that the law does
not suffer from manifest arbitrariness. Legitimacy, as a
postulate, involves a value judgment. Judicial review does not
reappreciate or second guess the value judgment of the
legislature but is for deciding whether the aim which is sought to
be pursued suffers from palpable or manifest arbitrariness. The
third requirement ensures that the means which are adopted by
the legislature are proportional to the object and needs sought
to be fulfilled by the law. Proportionality is an essential facet of
the guarantee against arbitrary State action because it ensures
that the nature and quality of the encroachment on the right is
not disproportionate to the purpose of the law. Hence, the
threefold requirement for a valid law arises out of the mutual
interdependence between the fundamental guarantees against
arbitrariness on the one hand and the protection of life and
personal liberty, on the other. The right to privacy, which is an
intrinsic part of the right to life and liberty, and the freedoms
embodied in Part III is subject to the same restraints which apply
to those freedoms’
Doctrine of Proportionality has been explained by a 5 Judge
bench of this Hon’ble Court in Modern Dental College &
Research Centre Vs State of M.P. (2016) 7 SCC 353 and further
elaborated by a 5 judge bench in KS Puttaswamy Vs UOI (2019)
2 SCC 1. It has been held that when a law limits a constitutional
right, such a limitation is constitutional if it is proportional. The law
imposing restrictions will be treated as proportional if it is meant to
achieve a proper purpose, and if the measures taken to achieve
such a purpose are rationally connected to the purpose, and such
measures are necessary.
In KS Puttaswamy II (2019) 1 SCC 1 following was noted:
‘157. In Modern Dental College & Research Centre151, four
sub-components of proportionality which need to be satisfied
were taken note of. These are:
(a). A measure restricting a right must have a legitimate
goal (legitimate goal stage).
(b). It must be a suitable means of furthering this goal
(suitability or rational connection stage).
(c). There must not be any less restrictive but equally
effective alternative (necessity stage).
(d). The measure must not have a disproportionate impact
on the right-holder (balancing stage).
A. IMPUGNED PROVISIONS:
I. Section 3(2)(a) is violative of Articles 14 & 21 of the
Constitution :
1. Section 3(2)(a) of the Act deals with cases where the length
of pregnancy does not exceed 12 weeks i.e. the first trimester. In
a case where the length of the pregnancy does not exceed 12
weeks a pregnancy may be terminated by a medical practitioner if
an opinion is formed by him/ her that the continuance of
pregnancy would involve a risk to the life of the pregnant woman or
of grave injury to her physical or mental health or 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. .
It is submitted that the provision imposes severe restriction on the
exercise of the reproductive choice of the woman by providing for a
precondition of an opinion by the medical practitioner about there
being a risk to the life of the lady or of grave physical or mental
injury or risk of serious fetal abnormalities if the pregnancy is
continued. The restriction puts an undue burden on the exercise of
free reproductive choice and renders it meaningless. This provision
in substance makes right to terminate pregnancy an exception
which is otherwise recognized as an important facet of right to life,
human dignity , autonomy and self determination.
2. It is submitted that conclusive medical evidence has
established that abortion in the first trimester entails lesser risk to a
person than the risks involved when pregnancy is carried to a full
term. Judicial cognizance of this fact has been taken by the US
Supreme Court in Roe Vs Wade 410 US 113. Although in later
judgments of US Supreme Court it has been noted that with the
advancement of science and technology safer abortions are
possible even at later stages even after first trimester ( See
Judgement dated 27.04.2019 delivered by Supreme Court of
Kansas in Hodes & Nauser Vs. Derek Schmidt ) and held that
trimester based lines have been blurred with the advancement in
science.
3. Research from Guttamacher Institute and various others
suggests that a first trimester abortion carries less than 0.5 percent
risk of major complications requiring hospital care.
It is submitted that at this stage of pregnancy there is no
legitimate interest of the State involved for interfering in the right of
reproductive choice of the woman and therefore there should not
be any intervention by the State curtailing the right of the lady to
terminate pregnancy. Only regulatory measures aimed at safe
abortions can be made. The restriction imposed by the impugned
provision does not have nexus with the object of the Act which is
prevention of maternal mortalities and complications associated
with unsafe abortion and is excessive and disproportionate and
fails to meet the test laid down in KS Puttaswamy.
4. It is vital to note here that even the Medical Termination of
Pregnancy (Amendment ) Bill, 2014 proposes to do away with the
requirement of there being opinion by a registered medical
practitioner that the continuance of pregnancy would involve a risk
to the life of the pregnant woman or of grave injury to her physical
or mental health as envisaged in Section 3(2) of the Act.
5. Even the right to health recognized by Article 21 of the
Constitution affords Constitutional protection to the choice of the
woman to choose a course which has lesser physical, mental and
socio economic adverse consequences on her.
In view of the above, it is submitted that Section 3(2) (a) fails
to meet the requirement of reasonableness and proportionality and
is arbitrary therefore liable to be struck down.
6. Increasingly most countries are permitting abortion on the
request of the woman with varied gestational limits. An illustrative
and non-exhaustive list is extracted below :-
S.NO COUNTRY TERM
1. Austria 12 weeks
2. France 14 weeks
3. Belgium 12 weeks
4. Netherlands 24 weeks
5. Norway 12 weeks
6. Sweden 18 weeks
7. Switzerland 12 weeks
8. Denmark 12 weeks
9. Australia ( Queensland , 14-24 weeks
Victoria, Tasmania, Western
Australia, Northern Territory)
10. Canada No gestational limits
11. China 24 weeks
12. Vietnam 22 weeks
13. Russia 12 weeks
II. Section 3(2)(b) which restricts the right to seek an
abortion on the ground of risk to the life of pregnant woman,
grave injury to her physical or mental health or substantial
risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously
handicapped to 20 weeks is violative of Articles 21 of the
Constitution.
1. Section 3(2)(b) permits termination of pregnancy beyond 12
weeks and not exceeding 20 weeks provided two registered
medical practitioners are of the opinion that the continuance of
pregnancy would involve a risk to the life of the pregnant woman or
of grave injury to her physical or mental health or there is
substantial risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously handicapped. It
is submitted that the restricting the permissible length of pregnancy
to 20 weeks is excessive and harsh. With the advent of science
and technology diagnosis of fetal abnormalities is possible at
subsequent stages and with the advancement of science and
technology it has become possible to terminate pregnancy even at
later stages. As has been noted by the Hon’ble Bombay High Court
in XVZ VS UOI 2019 Scc Online Bom 550 that ‘it is not as if all
contingencies express themselves only within the first 20 weeks of
pregnancy. Even in cases where a pregnant mother is regularly
following up her gyaenacologist, double marker test is undertaken
between 10th and 13th week; triple marker test between 18th and
20th week and the crucial anamoly scan in, around the 20th week.
Many serious fetal anomalies may not even be diagnosable until
twenty weeks as many pregnant mothers may not even have
access to suitable diagnostic tools, particularly in rural areas. In
many cases, complications can develop as the pregnancy
advances. In such cases, as long as the medical opinion does not
suggest that medical termination of pregnancy itself is a serious
risk to the physical life of the pregnant mother, the law cannot
plead helplessness particularly where circumstances set out in
clauses (i) and (ii) of Section 3(2)(b) of the MTP Act manifestly
exist.’
2. It is submitted that even the Medical Termination of
Pregnancy (Amendment) Bill 2014 and Medical Termination of
Pregnancy (Amendment) Bill 2017 have proposed to enhance it to
24 weeks. The SOR of the 2017 Amendment Bill notes that during
the intervening period after the Act was enforced, several genuine
cases have come up where the fact of foetuses with serious risk of
abnormalities with grave risk to physical and mental risk to mother
had been noticed after twenty weeks. As a result, many women
were forced to move the Supreme Court for permission to end
pregnancy beyong twenty weeks, leading to lot of mental and
financial hardship to such pregnant women. The Bill intends to
extend the permissible period for abortion from twenty weeks to
twenty four weeks if doctors believe the pregnancy involves a
substantial risk to the mother or the child or if there are substantial
fetal abnormalities. The Bill also intends to amend the provisions of
sub-section (3) of section (6) relating to laying of rules before each
House of Parliament and their notification etc. by the House.
3. However, the Bill has not been passed yet and has been
pending since 2014. A Division Bench of Madras High Court has
vide order dated 24.04.2019 taken suo moto cognizance of the
pending Bill and issued notice to the Central Government to
respond on various issues pertaining to termination of pregnancy
including as to when would the MTP Act be amended as per the
draft Medical Termination of Pregnancy (Amendment) Bill 2014.
4. Keeping in view the fact that our country lacks robust diagnostic
infrastructure especially in rural areas, complications in advance
stages of pregnancy , change in physical/ mental/ socio economic
situation of the pregnant woman the restriction of 20 weeks is
excessive when safe abortions are possible as late as towards 26
weeks.
III. Explanation 2 to Section 3(2) is violative Article 14 of the
Constitution.
1. Explanation 2 to Section 3(2) provides that 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.
2. The above provision amounts to hostile discrimination
against single women without any nexus to the object which is to
terminate an unwanted pregnancy. The deeming provision
provides that an unwanted due to failure of a contraceptive
measure is presumed to cause grave mental injury to the pregnant.
The object is to enable a woman to terminate an unplanned and
unwanted pregnancy since a pregnancy entails several physical ,
mental and socio-economic consequences. Keeping the object in
view there is no rationale for not affording the same protection to
an unmarried woman. On the contrary an unwanted and unplanned
pregnancy will invariably in the case of an unmarried woman will
ensue more grave consequences. The provision treats equals
unequally amounting to hostile discrimination and therefore liable
to be struck down as being violative of Article 14 of the
Constitution.
Studies suggest that unmarried sexually active women face
considerable obstacles to contraceptive use and abortion facilities.
Therefore the affording of protection only to married women is
arbitrary and amounts to hostile discrimination.
3. The provision also adversely affects the sexual autonomy of the
single women.
IV. Section 5 so far as it permits abortion after 20 weeks
only on the ground of immediate necessity to save the life of
the pregnant woman is violative of Articles 14 & 21:
1. Section 5 enables termination of pregnancy beyond 20
weeks where the registered medical practitioner is of the view that
termination of such pregnancy is immediately necessary to save
the life of the pregnant woman. It is submitted that this provision is
arbitrary and severely restricts the right to life and right to choice
envisaged under Article 21 of the Constitution in more than one
ways.
(i). It proscribes pregnancy even in the event fetal abnormalities
are detected post 20 weeks. Although the High Courts and
Supreme Court have time and again permitted abortions post
twenty weeks where fetal abnormalities have been detected
post 20 weeks.
(ii). It proscribes pregnancy even in cases where the pregnancy
is a result of rape.
(iii). There may be change of circumstances where the
continuance of pregnancy may severely jeopardize the
physical or mental health of the woman though not
necessarily be a threat to life of woman. For instance woman
may be diagnosed with certain serious disease like cancer
which may require postponing of treatment such as
chemotherapy, there may be breakdown of marriage during
the continuance of pregnancy and bearing the child would
have serious mental and socio economic consequences ,
there could be a rape victim who discovers pregnancy at a
stage later than the 20 week threshold or diagnosis of fetal
abnormality at a later stage. In short there could be a myriad
of unforeseeable situations which may present themselves
which need to be accommodated and therefore the only
ground of ‘ immediate necessity of saving the life of the
woman’ is too harsh and arbitrary. Even the High Courts and
Supreme Courts have permitted termination of pregnancy in
appropriate cases where the continuation of pregnancy would
result in physical or mental injury to the woman.
 2. 5 fails to meet the test of reasonableness and
proportionality. There is no legitimate State interest in
compelling a woman to continue her pregnancy where the
continuance of pregnancy involves risk to her physical or
mental health or substantial risk of fetal abnormalities.
Keeping in view the legitimate State interest i.e. the health (
both physical and mental ) of the pregnant woman the
measure of complete ban on termination on any ground other
than immediate necessity of saving the life of the woman the
measure is excessive, disproportionate and counter-
productive. Where the termination of pregnancy itself does
not involve risk to the physical life of the woman her right to
choice and right to health have to be respected. It is only
when there is threat to right to life in the sense of right to live
literally ( as understood as anthesis of death ) which enjoys
greater protections and is at higher pedestal in the hierarchy
of the fundamental rights can the right of reproductive choice
and right to privacy be overridden. This balancing of two
aspects of rights emanating from Article 21 of the
Constitution of the same individual has been recognized by a
5 Judge Bench of this Hon’ble Court in Aadhaar case i.e. KS
Puttaswamy II (2019) 1 SCC 1. This court held that assuming
that the Aaadhar Act minimally infringed upon the right of
privacy , the socio economic right i.e. right to food etc will
outweigh the right of privacy
3. Even the test that is being applied by this Hon’ble Court is
whether termination of pregnancy it is not going to be more
hazardous than spontaneous delivery at term. ( Judgment
dated 9th October, 2017 in W.P. (C) 928 of 2017 in Sonali
Kiran Gaikwad Vs UOI)
V. Section 3(4) (a) is violative of Article 21 of the
Constitution so far it makes consent of guardian mandatory in
case of mentally ill persons and minors.
1. In case of minors or mentally ill persons the pregnancy
cannot be terminated unless their guardian has given consent in
writing. As a consequence the guardian enjoys complete autonomy
over such persons. An unwilling minor or mentally ill person will be
compelled to carry the pregnancy to the full term and face all the
consequences and challenges which come along with the fact of
being a mother owing to refusal of consent of the guardian.
Especially in case of minors in the age of 16-18 , they are generally
are capable of making their decisions. However, if the guardian
refuses to give consent in writing then she will be forced to carry
the child which will have immense adverse and irreversible
consequences on her life. It is submitted that in case of minors
there should be an alternative route for making safe abortions
accessible in a situation where the guardian refuses consent or the
minor cannot approach the guardian due to social stigma and
pressure as is in the case of various legislations in other countries
such as USA. Making the guardian the whole sole decision making
authority for making a decision of whether to terminate pregnancy
or not is arbitrary and completely reduces the autonomy of the
minors and mentally ill persons envisaged by Article 21 of the
Constitution which is equally afforded to them by the Constitution.
2. Section 3(4) of the Act also fails to meet the ‘ best interest’
test which is to be applied in case of minors and mentally persons.
It is submitted that as stated above minors and mentally ill persons
belong to the most vulnerable section of women and making the
termination of pregnancy available dependent wholly on the
consent of the guardian destroys their right of reproductive choice.
3. The social stigma attached with pregnancy in unmarried
woman which is mostly prevalent in minors, minors are forced to
avail abortion from illegal abortion clinics which completely
annihilates their right of safe abortion which is also an aspect right
to health under Article 21
B. FAILURE OF STATE TO PROVIDE FOR SAFE
ABORTIONS IS VIOLATIVE OF ARTICLE 21:
1. This Hon’ble Court has held that Article 21 of the Constitution
imposes positive obligations on the State. It is submitted that right
to safe abortions emanates form right to health envisaged in
Article 21 of the Constitution. Recently Supreme Court of Kansas
in Hodes & Nauser Vs. Derek Schmidt vide Judgement dated
27.04.2019 has held that women have a fundamental right to safe
abortions.
2. The report dated 22.11.2017 by India Spend records that 56
% of abortions unsafe, 8.5 % of maternal deaths are due to unsafe
abortion and 10 women die everyday due to this . It records that
there is a 76.3% shortfall of obstetricians and gynaecologists
compared to their requirement at Community Health Centres.
Private medical facilities are expensive, and financially out of the
reach of most women. Stigma against premarital sex, or arising out
of a romanticised notion of motherhood, leads women to “resort to
secrecy”. Public and private health facilities denied women abortion
beyond the prescribed 20-week gestational period, as per the
study. As many as 29% of public hospitals in Bihar and 63% in
Assam provided second trimester abortions, the study showed. But
in Gujarat and Tamil Nadu, CHCs and PHCs did not provide
second trimester abortions which made women look to informal
methods of termination.
3. The report also states that 54-87% of facilities in the six study
states had turned away at least one woman seeking termination of
pregnancy. The reasons cited by facilities included shortage of
staff, lack of supplies or for not having consent from their husbands
or a family member which are not legal grounds for denying
abortions.
4. The Handbook on Medical Methods of Abortion to expand
Access to New technologies for Safe Abortions by Ministry of
Health and Family Welfare, Government of India dated January,
2016 also records that a significant yet prevalent cause of maternal
mortality in the country is unsafe abortion. Accounting for
approximately 8 % of all maternal deaths, it is the third largest
cause of maternal morbidity in the country and thus an area
requiring focussed attention. Each day close to 10 women die on
account of unsafe abortion.
5. The report published by The Lancet Global Health in
December 2017 titled The Incidence of Abortion and Unintended
Pregnancy in India, 2015 records that access to safe, legal
abortion services has lagged, so women now commonly obtain
medication abortion from pharmacists, chemists, and informal
vendors, and the information they receive on how to use the drugs
and on recommended gestational limits is often inaccurate or
absent. It further records that most primary health centres and a
large proportion of community health centres do not provide
abortion services, and the shortage of trained staff and inadequate
supplies are the primary reasons survey respondents gave for not
providing this service. A rate of 70 unintended pregnancies per
1000 women and the finding that nearly half of all pregnancies are
unintended suggest that there is great need for improvements in
contraceptive services for women and for couples in general and in
the context of abortion care.
6. It is submitted that it is evident that current framework and
infrastructure for termination of pregnancy is wholly inadequate and
fails to affords safe abortions to a large section of woman
especially belonging to rural area and from economically weaker
sections of the society thereby infringing their right to health
recognized by Article 14 of the Constitution.
LIST OF DATES

Year 1860 : Indian Penal Code was enacted including Sections

312-316 which criminalized abortion unless it was
for the purpose of saving the life of the woman.
Year 1971 : The Medical Termination of Pregnancy Act, 1971
was enacted to provide for termination of certain
pregnancies by registered medical practitioners
and for matters connected therewith and incidental
thereto . It came into force on 01.04.1972 vide
GSR 285 dated 19.02.1972 (hereinafter referred to
as MTP Act, 1971).
22.01.1973 : The US Supreme Court in a landmark judgment in
Roe Vs Wade 410 US 113 while deciding the
validity of law in Texas which criminalized abortion
except where it was for saving the life of the
mother held that privacy right is broad enough to
encompass woman’s decision whether or not to
terminate pregnancy. It laid down a trimester based
framework for termination of pregnancy. So far as
first trimester is concerned it held that a woman
enjoyed the greatest protection to her reproductive
right.
Year 2002 : Vide Act 64 of 2002 certain amendments were
made to MTP Act which came into force on
18.06.2003. Apart from substituting the word ‘
lunatic’ to ‘mentally ill person’ it made amendment
in Section 4 pertaining to place where pregnancy
may be terminated and also enhanced the
punishment of termination of pregnancy by any
person other than registered medical practitioner.
13.06.2003 : The Medical Termination of Pregnancy Rules,
2003 and the Medical Termination of Pregnancy
Regulations, 2003 were enforced.
28.08.2009 : A 3 Judge bench of this Honorable Court in a
landmark judgment in Suchitra Srivastava Vs UOI
(2009) 9 SCC 1 held that a woman’s right to make
reproductive choice is an aspect of personal liberty.
29.10.2014 : The Medical Termination of Pregnancy
(Amendment) Bill, 2014 was released by the
Ministry of Health & Family Welfare. The vital
changes sought to be brought are as follows:
(i). It sought to substitute ‘ registered medical
practitioner’ by ‘ registered health care provider’
and certain other categories of practitioners are
made eligible to terminate pregnancy.
(ii). For pregnancy of upto 12 weeks it seeks to do
away with the precondition of formation of opinion
by a medical practitioner that the continuance of
pregnancy will pose threat to the life of the woman
or grave physical/ mental injury or there is
substantial risk that if the child were born , it would
suffer from such physical or mental abnormalities
as to be seriously handicapped. It can simply be
done on the request of the woman.
(iii). It seeks to enhance the period of 20 weeks to
24 weeks envisaged in Section 3(2)(b).
(iv). It has omitted the word ‘married’ before
woman in Explanation to Section 3(2). Thereby
enabling single women to seek abortion on the
ground of failure of contraceptive device.
(v). In case of diagnosis of substantial fetal
abnormalities the restriction of time limit is done
away with.

Year 2015 : The report published by The Lancet Global

Health in December 2017 titled The Incidence of
Abortion and Unintended Pregnancy in India, 2015
records that access to safe, legal abortion services
has lagged, so women now commonly obtain
medication abortion from pharmacists, chemists,
 and informal vendors, and the information they
receive on how to use the drugs and on
recommended gestational limits is often inaccurate
or absent. It further records that most primary
health centres and a large proportion of community
health centres do not provide abortion services,
and the shortage of trained staff and inadequate
supplies are the primary reasons survey
respondents gave for not providing this service. A
rate of 70 unintended pregnancies per 1000
women and the finding that nearly half of all
pregnancies are unintended suggest that there is
great need for improvements in contraceptive
services for women and for couples in general and
in the context of abortion care.
January, : The Handbook on Medical Methods of Abortion to
2016 expand Access to New technologies for Safe
Abortions by Ministry of Health and Family Welfare,
Government of India dated January, 2016 records
that a significant yet prevalent cause of maternal
mortality in the country is unsafe abortion
Accounting for approximately 8 % of all maternal
deaths, it is the third largest cause of maternal
morbidity in the country and thus an area requiring
focussed attention. Each day close to 10 women
die on account of unsafe abortion.
04.08.2017 : The Medical Termination of Pregnancy
(Amendment) Bill, 2017 was introduced in Rajya
Sabha . It sought to increase the twenty weeks
limitation contained in Section 3(2) to twenty four
weeks. The SOR of the Bill notes that several
cases have come up wherein foetal abnormalities
have been noted after twenty weeks which forced
 women to approach Supreme Court and High
Courts which leading to mental and financial
hardship to woman.
22.11.2017 : The report dated 22.11.2017 by India Spend
records that 56 % of abortions unsafe, 8.5 % of
maternal deaths are due to unsafe abortion and 10
women die everyday due to this . It records that
there is a 76.3% shortfall of obstetricians and
gynaecologists compared to their requirement at
Community Health Centres. Private medical
facilities are expensive, and financially out of the
reach of most women. Stigma against premarital
sex, or arising out of a romanticised notion of
motherhood, leads women to “resort to secrecy”.
Public and private health facilities denied women
abortion beyond the prescribed 20-week
gestational period, as per the study. As many as
29% of public hospitals in Bihar and 63% in Assam
provided second trimester abortions, the study
showed. But in Gujarat and Tamil Nadu, CHCs and
PHCs did not provide second trimester abortions
which made women look to informal methods of
termination. The report also states that 54-87% of
facilities in the six study states had turned away at
least one woman seeking termination of
pregnancy. The reasons cited by facilities included
shortage of staff, lack of supplies or for not having
consent from their husbands or a family member
which are not legal grounds for denying abortions.
2017-2019 : That this Hon’ble Court and the High Courts have
been flooded with petitions seeking termination of
pregnancy beyond 20 weeks on account of risk of
physical/ mental injury to the woman, substantial
risk of fetal abnormalities and by rape victims. This
Hon’ble Court and several High Courts have
permitted termination on these accounts even
though Section 5 permits termination of pregnancy
beyond 20 weeks only when termination of such
pregnancy is immediately necessary to save the
life of the pregnant woman. Following is an
illustrative list o such cases decided by this Hon’ble
Court.
(i). (2018) 14 SCC 75 A Vs UOI
Term: 25-26th week
Reason for permission for termination: foetus
would not survive and can pose severe mental
injury to the woman.
(ii). (2018) 14 SCC 289 Mamta Verma Vs UOI
Term : 25 weeks
Reason for permission for termination: Medical
board opined that foetus wont survive and can
pose severe mental injury to the woman.
(iii). (2018) 12 SCC 57 Tapasya Umesh Pisal Vs
Union of India
Term : 24 weeks
Reason for permission for termination: medical
board opined that baby if delivered would have to
undergo multiple surgeries which is associated with
a high morbidity and mortality.

(iv). Sonali Kiran Gaikwad VS UOI

(Judgment dated 9th October, 2017 in W.P. (C) 928
of 2017 in Sonali Kiran Gaikwad Vs UOI)
Term : 28 weeks
Reason for permission for termination: Medical
Board opined serious abnormalities of the foetus, a
 substantial risk of serious physical handicap and
high chance of morbidity and mortality in the new
born. Although mother’s life was not in danger this
Court held that continuing pregnancy will cause
mental anguish.
(v). X Vs UOI (2017 ) 3 SCC 458
Term : 25 weeks
Reason for permission for termination: Medical
Boardopined that the condition of foetus was
incompatible with extra uterine life
(vi). Sharmishta Chakraborty Vs UOI (2018)13
SCC 339
Term : Beyond 20 weeks
Reason for permission for termination: Medical
boards opined that there is a risk of injury to mental
health of the woman and child if born alive would
require corrective surgeries associated with high
morbidity and mortality.
(vi). Meera Sathosh Pal Vs UOI (2017) 3 SCC
462
Term : 24 weeks
Reason for permission for termination: Medical
board opined that the continuance of pregnancy
will endanger physical and mental health of the
woman and the foetus wont survive.

02.11.2018 : A Division Bench of Bombay High Court vide

judgment dated 02.11.2018 in XYZ Vs UOI
reported in 2019 Scc Onlne Bom 560 interpreted
the word ‘ life’ in Section 5 of MTP Act, 1971 as
not being mere animal existence but quality of life
as is understood in its richness and fullness
consistent with human dignity. It held that beyond
 twenty weeks pregnancy can be terminated not
only where it is necessary to save the immediate
life of the woman but also where the continuance
of pregnancy will involve grave physical/ mental
injury to the woman or where there is substantial
risk that if the child were born would suffer from
deformities and diseases. However, the court held
that pregnancy beyond twenty weeks sought to be
terminated on the ground of grave physical/ mental
injury or substantial risk of foetal abnormalities
permission from High Court will have to be sought.
10.04.2019 : The High Court of Australia vide judgment dated
10.04.2019 in Kathleen Clubb Appellant And Alyce
Edwards & Anor while upholding a law providing
for safe access zones around abortion clinic held
that women seeking an abortion […] are entitled to
do so safely, privately and with dignity, without
haranguing or molestation.
24.04.2019 : A Division Bench of Madras High Court took suo
moto cognizance of the pendency Medical
Termination of Pregnancy ( Amendment) Bill, 2014
and certain other issues pertaining to abortions and
issued notice to Central Government. It noted that
in our country 81 % of abortions are done at homes
and in an unsafe manner. However, the court is not
considering the issues pertaining to validity of
Section 3 and 5 of the MTP ACT.
28.05.2019 : A Division Bench of Delhi High Court issued notice
in W.P. (Crl) No. 1612 of 2019 challenging Section
3 of the MTP Act.
28.05.2019 : That a news paper report was published in Times
of India a 28 year old woman who had filed a writ
petition before the Hon’ble High Court of Bombay
 seeking permission to terminate her 28 week
pregnancy since the fetus had a major brain
anomaly delivered the baby a day before the
Medical Board gave an opinion that the terminated
should be terminated due to mental agony the
fetus’s condition was causing her.
Approaching High Court and Supreme Court
causes immense financial and other social
hardships. The time taken in adjudication by courts
also is detrimental to the health of the woman. The
above incident is a classic example of the same.
29.05.2019 : Hence this Writ Petition
 IN THE SUPREME COURT OF INDIA
(CIVIL ORIGINAL JURISDICTION)
WRIT PETITION(CIVIL) NO. OF 2019
(Under Article 32 of the Constitution of India)

IN THE MATTER OF :

1. Swati Agarwal
xxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx

2. Garima Sekseria
XXXXXXXXXXXXXXXXXXXXXX
XXXXXxXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX,
XXXXXXXXXXXXXX

3. Prachi Vats
XXXXXXXXXXXXX
XXXXXXXXXXX
XXXXXXXXXX … Petitioners

Versus

Union of India
Through Secretary
Ministry of Health &
Family Welfare
A Wing Nirman Bhawan,
New Delhi-110011. … Respondent

WRIT PETITION FILED UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA CHALLENGING

THE CONSTITUIONAL VALIDITY OF SECTION

3 & 5 OF THE MEDICAL TERMINATION OF

PREGNANCY ACT, 1971

To,

The Hon’ble the Chief Justice of India and his Companion

Judges of the Supreme Court of India.

The humble petition of the petitioner above named.

MOST RESPECTFULLY SHOWETH :

1. That the present writ petition has been preferred by the

Petitioner under Article 32 of the Constitution of India for issuance

of Writ of certiorari for quashing Section 3 & 5 of the Medical

Termination of Pregnancy Act, 1971 and mandamus to implement

the Medical Termination of Pregnancy (Amendment) Bill, 2014.

As the matter pertains to PIL, under Order XXXVIII, Rule 2(2)

of SCR,2013 :-

(i). The petitioners is required

to disclose :

(a). Full Name, complete 1. Swati Agarwal W/o Shri

postal address, e-mail

address, phone number, 2. Garima Sekseria

proof regarding

identification, occupation 3. Prachi Vats

and annual income, PAN

No. and National Unique

identity Card No., if any :

(b). The facts constituting the Petitioners are challenging

cause of action. Sections 3 & 5 of the Medical

Termination of Pregnancy

Act, 1971.

(c) The nature of injury Violation of Article 14 & 21 of

caused or likely to be the Constitution.

caused to the public.

(d). The nature and extent of Civil litigation, no personal

personal interest, if any, of interest.

the petitioner(s).

(e) Details regarding any civil, No

criminal or revenue

litigation, involving the

petitioners or any of the

petitioners, which has or

could have a legal nexus

with the issues involved in

the Public Interest

Litigation and

(f). Whether the concerned No

Government Authority was

moved for reliefs sought in

the petition and if so, with

 what result.

1A. That the Petitioner No. 1 is a married woman and teacher by

profession. Petitioner No. 2 is also a married woman and a digital

marketer by profession. Petitioner No. 3 is a single woman and a

Public Relations and Corporate Communication specialist by

profession.

1B. The Petitioners no have private motive or oblique reason in

filing the present writ petition. However, the Petitioners have filed

the present writ petition for enforcement of Fundamental Rights

conferred by Article 14 and 21 of the Constitution. The present

petition not only concerns the right of the Petitioners but also rights

of women in the country in general.

2. BRIEF FACTS OF THE CASE :

That the facts giving to the filing all this petition.

(i). Indian Penal Code was enacted including Sections 312-316

which criminalized abortion unless it was for the purpose of

saving the life of the woman.

(ii). The Medical Termination of Pregnancy Act, 1971 was

enacted to provide for termination of certain pregnancies by

registered medical practitioners and for matters connected

therewith and incidental thereto. It came into force on

 01.04.1972 vide GSR 285 dated 19.02.1972 (hereinafter

referred to as MTP Act, 1971).

(iii). The US Supreme Court in a landmark judgment in Roe Vs

Wade 410 US 113 while deciding the validity of law in Texas

which criminalized abortion except where it was for saving

the life of the mother held that privacy right is broad enough

to encompass woman’s decision whether or not to terminate

pregnancy. It laid down a trimester based framework for

termination of pregnancy. So far as first trimester is

concerned it held that a woman enjoyed the greatest

protection to her reproductive right

(iv). Vide Act 64 of 2002 certain amendments were made to MTP

Act which came into force on 18.06.2003. Apart from

substituting the word ‘ lunatic’ to ‘mentally ill person’ it made

amendment in Section 4 pertaining to place where pregnancy

may be terminated and also enhanced the punishment of

termination of pregnancy by any person other than registered

medical practitioner.

(v). The Medical Termination of Pregnancy Rules, 2003 and the

Medical Termination of Pregnancy Regulations, 2003 were

enforced.

(vi). A 3 Judge bench of this Honorable Court in a landmark

judgment in Suchita Srivastava Vs Chandigarh

 Administration (2009) 9 SCC 1 held that a woman’s right to

make reproductive choice is an aspect of personal liberty.

(vii). The Medical Termination of Pregnancy (Amendment) Bill,

2014 was released by the Ministry of Health & Family

Welfare. The vital changes sought to be brought are as

follows:

(i). It sought to substitute ‘ registered medical practitioner’

by ‘registered health care provider’ and certain other

categories of practitioners are made eligible to

terminate pregnancy .

(ii). For pregnancy of upto 12 weeks it seeks to do away

with the precondition of formation of opinion by a

medical practitioner that the continuance of pregnancy

will pose threat to the life of the woman or grave

physical/ mental injury or there is substantial risk that if

the child were born , it would suffer from such physical

or mental abnormalities as to be seriously

handicapped. It can simply be done on the request of

the woman.

(iii). It seeks to enhance the period of 20 weeks to 24 weeks

envisaged in Section 3(2)(b).

(iv). It has omitted the word ‘ married’ before woman in

Explanation to Section 3(2). Thereby enabling single

 women to seek abortion on the ground of failure of

contraceptive device.

(v). In case of diagnosis of substantial fetal abnormalities

the restriction of time limit is done away with.

A copy of the draft Medical Termination of Pregnancy

(Amendment) Bill, 2014 is annexed as Annexure P-1 (at

page 30-34) to this Writ Petition.

(a). The report published by The Lancet Global Health in

December 2017 titled The Incidence of Abortion and

Unintended Pregnancy in India, 2015 records that

access to safe, legal abortion services has lagged, so

women now commonly obtain medication abortion from

pharmacists, chemists, and informal vendors, and the

information they receive on how to use the drugs and

on recommended gestational limits is often inaccurate

or absent. It further records that most primary health

centres and a large proportion of community health

centres do not provide abortion services, and the

shortage of trained staff and inadequate supplies are

the primary reasons survey respondents gave for not

providing this service. A rate of 70 unintended

pregnancies per 1000 women and the finding that

nearly half of all pregnancies are unintended suggest

that there is great need for improvements in

 contraceptive services for women and for couples in

general and in the context of abortion care. A copy of

the report titled as The Incidence of abortion and

unintended pregnancy in India, 2015 is annexed as

Annexure P-2(at page 35-44) to this Writ Petition.

(b). The Handbook on Medical Methods of Abortion to

expand Access to New technologies for Safe Abortions

by Ministry of Health and Family Welfare, Government

of India dated January, 2016 records that a significant

yet prevalent cause of maternal mortality in the country

is unsafe abortion Accounting for approximately 8 % of

all maternal deaths, it is the third largest cause of

maternal morbidity in the country and thus an area

requiring focussed attention. Each day close to 10

women die on account of unsafe abortion. True copy of

Relevant extracts of the handbook on Medical Methods

of Abortion to expand Access to New technologies for

Safe Abortions by Ministry of Health and Family

Welfare, Government of India dated January, 2016 is

annexed as Annexure P-3(at page 45 - 51) to this Writ

Petition.

(c). The report dated 22.11.2017 by India Spend records

that 56 % of abortions unsafe, 8.5 % of maternal deaths

are due to unsafe abortion and 10 women die everyday

 due to this . It records that there is a 76.3% shortfall of

obstetricians and gynaecologists compared to their

requirement at Community Health Centres. Private

medical facilities are expensive, and financially out of

the reach of most women. Stigma against premarital

sex, or arising out of a romanticised notion of

motherhood, leads women to “resort to secrecy”. Public

and private health facilities denied women abortion

beyond the prescribed 20-week gestational period, as

per the study. As many as 29% of public hospitals in

Bihar and 63% in Assam provided second trimester

abortions, the study showed. But in Gujarat and Tamil

Nadu, CHCs and PHCs did not provide second

trimester abortions which made women look to informal

methods of termination. The report also states that 54-

87% of facilities in the six study states had turned away

at least one woman seeking termination of pregnancy.

The reasons cited by facilities included shortage of

staff, lack of supplies or for not having consent from

their husbands or a family member which are not legal

grounds for denying abortions. True copy of the report

by India Spend dated 22.11.2017 is annexed as

Annexure P-4(at page 52 - 61) to this Writ Petition.

(viii). The Medical Termination of Pregnancy (Amendment) Bill,

2017 was introduced in Rajya Sabha. It sought to increase

 the twenty weeks limitation contained in Section 3(2) to

twenty four weeks. The SOR of the Bill notes that several

cases have come up wherein foetal abnormalities have been

noted after twenty weeks which forced women to approach

Supreme Court and High Courts which leading to mental and

financial hardship to woman. True copy of the Medical

Termination of Pregnancy (Amendment) Bill, 2017 is

annexed as Annexure P-5(at page 62 - 65) to this Writ

Petition.

(ix). That this Hon’ble Court and the High Courts have been

flooded with petitions seeking termination of pregnancy

beyond 20 weeks on account of risk of physical/ mental injury

to the woman, substantial risk of fetal abnormalities and by

rape victims. This Hon’ble Court and several High Courts

have permitted termination on these accounts even though

Section 5 permits termination of pregnancy beyond 20 weeks

only when termination of such pregnancy is immediately

necessary to save the life of the pregnant woman. Following

is an illustrative list of such cases decided by this Hon’ble

Court.

[a] (2018) 14 SCC 75 A Vs UOI

Term: 25-26th week

Reason for permission for termination: foetus wont survive

and can pose severe mental injury to the woman.

[b] (2018) 14 SCC 289 Mamta Verma Vs UOI

Term : 25 weeks

Reason for permission for termination: Medical board opined

that foetus wont survive and can pose severe mental injury to

the woman.

[c] (2018) 12 SCC 57 Tapasya Umesh Pisal Vs Union of

India

Term : 24 weeks

Reason for permission for termination: medical board opined

that baby if delivered would have to undergo multiple

surgeries which is associated with a high morbidity and

mortality.

[d] Sonali Kiran Gaikwad VS UOI

Term : 28 weeks

Reason for permission for termination: Medical Board opined

serious abnormalities of the foetus, a substantial risk of

serious physical handicap and high chance of morbidity and

mortality in the new born. Although mother’s life was not in

danger this Court held that continuing pregnancy will cause

mental anguish.

[e]. X Vs UOI (2017 ) 3 SCC 458

Term : 25 weeks
 Reason for permission for termination: Medical Board opined

that the condition of foetus was incompatible with extra

uterine life

[f]. Sharmishta Chakraborty Vs UOI (2018)13 SCC 339

Term : Beyond 20 weeks
Reason for permission for termination: Medical boards

opined that there is a risk of injury to mental health of the

woman and child if born alive would require corrective

surgeries associated with high morbidity and mortality.

[g] Meera Sathosh Pal Vs UOI (2017) 3 SCC 462

Term : 24 weeks
Reason for permission for termination: Medical board opined

that the continuance of pregnancy will endanger physical

and mental health of the woman and the foetus wont survive.

(x). A Division Bench of Bombay High Court vide judgment dated

02.11.2018 interpreted the word ‘ life’ in Section 5 of MTP

Act, 1971 as not being mere animal existence but quality of

life as is understood in its richness and fullness consistent

with human dignity. It held that beyond twenty weeks

pregnancy can be terminated not only where it is necessary

to save the immediate life of the woman but also where the

continuance of pregnancy will involve grave physical/ mental

injury to the woman or where there is substantial risk that if

the child were born would suffer from deformities and

diseases. However, the court held that pregnancy beyond

twenty weeks sought to be terminated on the ground of grave

 physical/ mental injury or substantial risk of foetal

abnormalities permission from High Court will have to be

sought. True copy of the judgment delivered by the Hon’ble

High of Bombay dated 02.11.2018 in W.P. 10835 of 2018

and connected writs is annexed as Annexure P-6(at page

66 - 96 ) to this Writ Petition.

(xi). A Division Bench of Madras High Court took suo moto

cognizance of the pendency of the Medical Termination of

Pregnancy ( Amendment) Bill, 2014 and various other issues

pertaining to abortion in our country and issued notice to

Central Government. It noted that in our country 81 % of

abortions are done at homes and in an unsafe manner. True

copy of the order dated 24.04.2019 passed by the Hon’ble

High Court of Madras in Suo Moto WP(MD) No. 9910 of 2019

is annexed as Annexure P-7(at page 97 - 100 ) to this Writ

Petition.

(xii). A Division Bench of Delhi High Court issued notice in W.P.

(Crl) No. 1612 of 2019 challenging Section 3 of the MTP Act.

(xiii). That a news paper report was published in Times of India a

28 year old woman who had filed a writ petition before the

Hon’ble High Court of Bombay seeking permission to

terminate her 28 week pregnancy since the fetus had a major

brain anomaly delivered the baby a day before the Medical

Board gave an opinion that the terminated should be

 terminated due to mental agony the fetus’s condition was

causing her. True copy of the newspaper report dated

28.05.2019 is annexed as Annexure P-8(at page 101 - 104)

to this Writ Petition.

3. That the Petitioner has not filed any other or similar petition in

this Hon’ble Court or before any High Court seeking the same relief

as prayed for in the present writ petition.

4. In the above facts and circumstances of this case the

Petitioner prefers writ petition inter alia on the following grounds :

GROUNDS

A]. Because the issue of safe abortions and restriction on the

reproductive choice of women and other incidental issues as

raised in the present petition require consideration and urgent

resolution by this Hon’ble Court since it severely, drastically

and irreversibly affects all women of the country and is not a

regional issue pertaining to any particular State. The

impugned provisions and the lack of access to safe abortions

affects the fundamental right to health , reproductive choice

and right to privacy of women of the country.

B]. Because Section 3(2)(a) which provides for a mandatory

precondition of formation of opinion by a medical practitioner

that continuance of pregnancy would involve a risk to the life

of the pregnant woman or of grave injury to her physical or

mental health or there is substantial risk that if the child were

 born, it would suffer from such physical or mental

abnormalities as to be seriously handicapped where a

pregnancy not exceeding twelve weeks is sought is violative

of right to privacy and right to reproductive choice of a

woman which inhere and are recognized by Article 21 of the

Constitution as settled by this Hon’ble Court in Suchitra

Srivatava Vs Chandigarh Administration (2009) 9 SCC 1

and KS Puttaswamy Vs UOI (2017) 10 SCC 1 . It has been

held by a 9 judge bench of this Hon’ble Court in KS

Puttaswamy that family, marriage, procreation and sexual

orientation are all integral to the dignity of individual. It further

holds that the freedoms under Article 19 can be fulfilled

where the individual can decide his/ her preferences. Read in

conjunction with Article 21, liberty enables the individual to

have a choice of preferences on various facets. It held that

privacy is a Constitutional value which straddles across the

spectrum of fundamental rights and protects for the individual

a zone of choice and self-determination.

C]. Because in the first trimester i.e. where the length of

pregnancy does not exceed twelve weeks the risks involved

in abortion are minimal when compared to the risks involved

where pregnancy is carried to full term. Judicial cognizance

has been taken of the said fact way back in 1973 by the US

Supreme Court in Roe Vs Wade. Although with the advent

of science and technology abortions at later stages has also

become safer but so far as first trimester is concerned there

is no dispute the risks involved when pregnancy is carried to

full term far outweigh the minimal and negligible risks

involved when pregnancy is terminated in the first trimester.

Keeping this in view the State cannot make any law

restricting the right of the woman seeking abortion. It has

been held by this Hon’ble Court in KS Puttaswamy that the

State may intervene to protect legitimate State interests but it

has to ensure fulfilment three fold requirement. It has held

that firstly there should be a law in existence , second, there

should be need in terms of a legitimate State interest and

third the law should be proportional to the objects and needs

sought to be fulfilled. It is submitted that Section 3(2) (a) fails

both the second and third test. So far as first trimester is

concerned there is no need to make termination of pregnancy

subject to formation of opinion of medical practitioner that

continuance of pregnancy poses risk to life of the woman or

risk of grave physical/ mental injury to the woman or there is

substantial risk that if the child were born, it would suffer from

such physical or mental abnormalities as to be serious

handicapped since the adverse consequences of termination

are negligible or nil when compared to the risks involved in

carrying the pregnancy to it full term. Such a requirement

reduces the fundamental right of reproductive choice to an

exception. Till the first trimester the woman’s reproductive

 choice must enjoy complete protection and only those laws

which are aimed at safer abortions can be made by the

Parliament.

D]. Because it is the duty of the State to safeguard the ability to

take decisions – the autonomy of those decisions and not to

dictate those decisions. At the stage of the first trimester

keeping in view the negligible or nil risks involved to the

health of the woman the right of reproductive choice of the

woman enjoys maximum protection.

E]. Because Section 3(2)(a) also infringes the right to health as

recognized by Article 21 of the Constitution. Right to health

guaranteed by Article 21 affords constitutional protection to

the choice of a woman to make a choice to abort which

entails far lesser / negligible to her health. Recently Supreme

Court of Kansas in Hodes & Nauser Vs. Derek Schmidt

vide Judgement dated 27.04.2019 has held that women have

a fundamental right to safe abortions.

F]. Because Section 3(2)(a) also fails to meet the test of

proportionality. The object of the MTP Ac, 1971 is primarily to

prevent maternal mortalities and provide safer abortions.

Such harsh restriction inflict undue burden on the right and

are grossly disproportionate and arbitrary.

G]. Because the Medical Termination of Pregnancy(

Amendment) Bill, 2014 also proposes to do away the harsh

 restrictions contained in Section 3(2)(a) and proposes that

the pregnancy not exceeding 12 weeks can be terminated on

the request of the woman. Even globally termination of

pregnancy on the request of the woman is permitted in

several countries with varied gestational limits ranging from

12 weeks to 24 weeks.

H]. Because Section 3(2)(b) which permits termination of

pregnancy beyond 12 weeks and not exceeding 20 weeks

provided two registered medical practitioners are of the

opinion that the continuance of pregnancy would involve a

risk to the life of the pregnant woman or of grave injury to her

physical or mental health or there is substantial risk that if the

child were born, it would suffer from such physical or mental

abnormalities as to be seriously handicapped is violative of

Article 14 and 21 of the Constitution. It is submitted that the

restricting the permissible length of pregnancy to 20 weeks is

excessive and harsh and has no nexus with the object of the

Act which is affording medical care to pregnant women and

preventing maternal mortalities . With the advent of science

and technology diagnosis of fetal abnormalities is possible at

subsequent stages and with the advancement of science and

technology it has become possible to terminate pregnancy

even at later stages. As has been noted by the Hon’ble

Bombay High Court in XVZ VS UOI 2019 Scc Online Bom

550 that ‘it is not as if all contingencies express themselves

 only within the first 20 weeks of pregnancy. Even in cases

where a pregnant mother is regularly following up her

gyaenacologist, double marker test is undertaken between

10th and 13th week; triple marker test between 18th and 20th

week and the crucial anamoly scan in, around the 20th week.

Many serious fetal anomalies may not even be diagnosable

until twenty weeks as many pregnant mothers may not even

have access to suitable diagnostic tools, particularly in rural

areas. In many cases, complications can develop as the

pregnancy advances. In such cases, as long as the medical

opinion does not suggest that medical termination of

pregnancy itself is a serious risk to the physical life of the

pregnant mother, the law cannot plead helplessness

particularly where circumstances set out in clauses (i) and (ii)

of Section 3(2)(b) of the MTP Act manifestly exist.’ Therefore,

the limit of 20 weeks has become unconstitutional with the

advancement in science and technology in this field.

I]. Because Explanation 2 to Section 3(2) which provides that

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

pregnant woman is violative of Article 14 as it discriminates

against single women. The above provision treats equals

 unequally and the classification based on marital status is

bad since it has no nexus with the object of terminating an

unwanted pregnancy.

J]. Because an unwanted pregnancy has far grave mental and

socio economic consequences in the case of single women

than married woman and therefore the protection afforded

only to married woman is discriminatory and violative of

Article 14 of the Constitution. This provisions also adversely

affects the sexual autonomy of single women.

K]. Because Section 3(4)(a) which mandates consent of

guardian for termination of pregnancy in case of minor and

mentally ill persons is arbitrary and destructive of right of

bodily integrity and autonomy of such women. It is submitted

that the guardian cannot be made the ultimate decision

maker regarding termination or otherwise of the pregnancy

given the irreversible physical, mental socio economic

consequences that ensue as result of pregnancy. As a result

of such a provision a minor is forced to bear the burden of

pregnancy and the burden of raising a child if the guardian

refuses the consent to terminate the same. It is submitted

that the consequences of pregnancy on a woman are drastic

and irreversible and therefore should not be left to the whims

and fancies of the guardian. It is the duty of the State to

enable the minors and mentally ill persons being most

 vulnerable to exercise their choice. Therefore, an alternative

procedure for making safe abortions accessible in a situation

where the guardian refuses consent or the minor cannot

approach the guardian due to social stigma.

L]. Because Section 3(4) of the Act also fails to meet the ‘ best

interest’ test which is to be applied in case of minors and

mentally persons. It is submitted that as stated above minors

and mentally ill persons belong to the most vulnerable

section of women and making the termination of pregnancy

available dependent wholly on the consent of the guardian

destroys their right of reproductive choice.

M]. Because of the social stigma attached with pregnancy in

unmarried woman which is mostly prevalent in minors,

minors are forced to avail abortion from illegal abortion clinics

which destroys their right of safe abortion which is also an

aspect right to health under Article 21.

N]. Because as has been held by a 5 Judge Bench in M. Nagraj

Vs State of Karnataka (2006) 8 SCC 212 and 9 Judge

Bench of this Hon’ble Court in KS Puttaswamy that Article

21 is not only negative but also has positive obligations on

the State. It requires that the State should enable an

individual to make choices in life especially those pertaining

to his/ her personal life.

O]. Because Section 5 of the MTP Act which permits termination

of pregnancy beyond 20 weeks only in cases where it is

necessary to immediately necessary to save the life of the

pregnant woman is arbitrary, unreasonable and

disproportionate and violative of Article14 and 21 of the

Constitution.

P]. Because Section 5 fails to accommodate those contingencies

where the registered medical practitioner opines that the

continuance of pregnancy involves grave injury to the

physical health( not life threatening) or to the mental health of

the mother. It also fails to accommodate contingences where

medical opinion establishes that there is substantial risk that

if the child were born, it would suffer from such physical and

mental abnormalities as to be seriously handicapped. It also

fails to accommodate where pregnancy is alleged to have

been caused as a result of rape. It is submitted that no right

is absolute and just fair , reasonable and proportionate

restrictions can be imposed but the restriction contained in

Section 5 allowing termination of pregnancy only where it is

immediately necessary to save the life of the woman is

excessive, arbitrary and disproportionate.

Q]. Because this Hon’ble Court and various High Courts have

time and again permitted abortion beyond twenty weeks on

the ground of risk of physical/ mental injury to the woman

and/ or where there is substantial risk that if the child were

born, it would suffer from such physical and mental

abnormalities as to be seriously handicapped. An illustrative

list of few such cases is as below :-

(i). (2018) 14 SCC 75 A Vs UOI

Term: 25-26th week

Reason for permission for termination: foetus wont survive

and can pose severe mental injury to the woman.

(ii). (2018) 14 SCC 289 Mamta Verma Vs UOI

Term : 25 weeks

Reason for permission for termination: Medical board opined

that foetus wont survive and can pose severe mental injury to
the woman.

(iii). (2018) 12 SCC 57 Tapasya Umesh Pisal Vs UOI

Term : 24 weeks

Reason for permission for termination: medical board opined

that baby if delivered would have to undergo multiple
surgeries which is associated with a high morbidity and
mortality.

(iv). Sonali Kiran Gaikwad VS UOI ( Judgment dated 9th

October, 2017 in W.P. (C) 928 of 2017)

Term : 28 weeks

Reason for permission for termination: Medical Board opined

serious abnormalities of the foetus, a substantial risk of
serious physical handicap and high chance of morbidity and
mortality in the new born. Although mother’s life was not in
 danger this Court held that continuing pregnancy will cause
mental anguish.

(v). X Vs UOI (2017 ) 3 SCC 458

Term : 25 weeks

Reason for permission for termination: Medical Boardopined

that the condition of foetus was incompatible with extra
uterine life

(vi). Sharmishta Chakraborty Vs UOI (2018)13 SCC 339

Term : Beyond 20 weeks

Reason for permission for termination: Medical boards

opined that there is a risk of injury to mental health of the
woman and child if born alive would require corrective
surgeries associated with high morbidity and mortality.

(vii). Meera Sathosh Pal Vs UOI (2017) 3 SCC 462

Term : 24 weeks

Reason for permission for termination: Medical board opined

that the continuance of pregnancy will endanger physical
and mental health of the woman and the foetus wont survive.

R]. Because the Section 5 fails to apply the test of

proportionality which has been consistently applied by this

Hon’ble Court i.e. whether termination of pregnancy is going

to be more hazardous to the woman than delivery at term (

See Judgment dated 9th October, 2017 in W.P. (C) 928 of

2017 in Sonali Kiran Gaikwad Vs UOI)

S]. Because as a result of the current legal framework women

are forced to approach Supreme Court and High Court which

 causes immense financial and other social hardships. The

time taken in adjudication by courts also is detrimental to the

health of the woman. Most women from rural and

economically background do not even have the wherewithal

to move the courts for enforcement of their right.

PRAYER

In the above facts and circumstances of this case, it is most

humbly prayed that this Hon’ble Court may be graciously be

pleased to :

(i). Issue a writ of certiorari or any other appropriate writ to

declare Section 3(2) (a)of the Medical Termination of

Pregnancy Act, 1971 to the extent it requires formation of

opinion by medical practitioner that continuance of pregnancy

would involve a risk to the life of the pregnant woman or of

grave injury to her physical or mental health or there is

substantial risk that if the child were born, it would suffer from

such physical or mental health abnormalities as to be

seriously handicapped for termination of pregnancy where

length of pregnancy does not exceed 12 weeks as

unconstitutional and void as it violates Article 14 & 21 of the

Constitution .

(ii). Issue a writ of certiorari or any other appropriate writ to

declare Section 3(2)(b) of the Medical Termination of

Pregnancy Act, 1971 to the extent it restricts the termination

 of pregnancy on the ground of risk to the life of the pregnant

woman or of grave injury to her physical or mental health or

there is substantial risk that if the child were born, it would

suffer from such physical or mental health abnormalities as to

be seriously handicapped for termination of pregnancy only

to those cases where length of pregnancy does not exceed

20 weeks as unconstitutional and void as it violates Article

14 & 21 of the Constitution.

(iii). Issue a writ of certiorari or any other appropriate writ to

declare Explanation 2 to Section 3(2) of the Medical

Termination of Pregnancy Act, 1971 to the extent it only

applies to married women as unconstitutional and void as it

violates Article 14 of the Constitution.

(iv). Issue a writ of certiorari or any other appropriate writ to

declare Section 3(4) of the Medical Termination of

Pregnancy Act, 1971 as unconstitutional and void as it

violates Article 21 of the Constitution.

(v). Issue a writ of certiorari or any other appropriate writ to

declare Section 5 of the Medical Termination of Pregnancy

Act, 1971 to the extent it proscribes termination of pregnancy

beyond 20 weeks only on the ground of immediate necessity

of saving the life of the woman as unconstitutional and void

as it violates Article 14 & 21 of the Constitution.

(vi) Issue mandamus or any other appropriate writ for

implementation of the Medical Termination of Pregnancy (

Amendment) Bill, 2014

(vi). Issue mandamus or any other appropriate writ directing

Central Government to take steps to provide access safe

abortion to all women especially those belonging to socially

and economically backward sections of the society.

(vii). Pass any other or further order as this Hon’ble court may

deem fit and proper in the facts and circumstances of the

present case.

DRAWN AND FILED BY

(Ms. Sansriti Pathak)

Advocate for the Petitioners.
Drawn on 29.05.2019
Filed on 29.05.2019
 IN THE SUPREME COURT OF INDIA

(CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2019
IN THE MATTER OF :
Swati Agarwal & Others .. Petitioners
Versus
Union of India .. Respondent

AFFIDAVIT

I, Swati Agarwal W/o Shri Dinesh Aggarwala, XXXXXXXXX,

XXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXX

XXXXXXXXX presently in XXX XXXXX, do hereby solemnly affirm

and state as follows :

1. That I am the petitioner in the abovementioned writ petition

and am well conversant with the facts and circumstances of the

case, hence competent to swear this affidavit.

2. That I state that I have gone through the contents of the

accompanying Writ Petition which has been drafted under my

instruction. I state that the facts stated in the accompanying

Synopsis and List of Dates (Pages B to AA ) , Writ Petition Paras 1

to 4 (Pages 1 to 27 ) , Grounds A to S and the main prayer and

the accompanying Interlocutory application are true to the best of

my knowledge and rest are submissions based on legal advice

which I believe to be true and correct.

3. That Annexure P-1 to P-8 are true copies of their respective

originals

DEPONENT

VERIFICATION :

Verified at New Delhi on this 29th day of May, 2019, that the

contents of the above affidavit are true to my knowledge and

believe and nothing material has been concealed therefrom.

DEPONENT
 IN THE SUPREME COURT OF INDIA

(CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2019

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

PUBLIC INTEREST LITIGATION

IN THE MATTER OF :
Swati Agarwal & Others .. Petitioners
Versus
Union of India .. Respondent

PAPER BOOK
(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONERS: MS. SANSRITI PATHAK

 INDEX
S.No. Particulars of Document Pages No. of Part to Remarks
which it belongs.
(i) (ii) (iii) (iv) (v)
Court Fee

1. Listing Proforma A- A1 A- A-1

2. Cover Page of Paper Book A-2

3. Index of Record of A-3

Proceedings.

4. Limitation Report prepared by A-4

the Registry.

5. Defect List A-5

6. Note Sheet NSI TO

7. Synopsis and List of Dates B – AA

8. Writ Petition with Affidavit. 01 – 29

9. ANNEXURE P-1 : True copy 30 – 34

of the draft Medical
Termination of Pregnancy
(Amendment) Bill, 2014.

10. ANNEXURE P-2 : True copy 35 – 44

of the report titled as The
Incidence of abortion and
unintended pregnancy in India,
2015.

11. ANNEXURE P-3 : True copy 45 – 51

of Relevant extracts of the
handbook on Medical Methods
of Abortion to expand Access
to New technologies for Safe
Abortions by Ministry of Health
and Family Welfare,
Government of India dated
January, 2016.

12. ANNEXURE P-4 : True copy 52 – 61

of the report by India Spend
dated 22.11.2017.

13. ANNEXURE P-5 : True copy 62 – 65

of the Medical Termination of
Pregnancy (Amendment) Bill,
2017.
14. ANNEXURE P-6 : True copy 66 - 96
of the judgment delivered by
the Hon’ble High of Bombay
dated 02.11.2018 in W.P.
10835 of 2018 and connected
writs.

15. ANNEXURE P-7 : True copy 97 – 100

of the order dated 24.04.2019
passed by the Hon’ble High
Court of Madras in Suo Moto
WP(MD) No. 9910 of 2019.

16. ANNEXURE P-8 : True copy 101 – 104

of the newspaper report dated
28.05.2019.

17. Filing Memo 105

18. V/M 106

 PROFORMA FOR FIRST LISTING

SECTION : PIL

The Case pertains to (Please tick/check the correct box) :

o Central Act : The Medical Termination of Pregnancy Act

1971.
o Section : Section 3 & 5 the Medical Termination of Pregnancy
Act 1971.
o Central Rule : (Title) N.A.

o Rule No(s) : NA.

o State Act : N.A.

.
o Section : N.A.

o State Rule : N.A.

o Rule No(s) :N.A.

o Impugned Interim Order : NA

o Impugned Final Order/Decree : NA

o High Court : NA

o Names of Judges : NA

Tribunal/Authority : (Name) : NA

1. Nature of Matter : Civil √ Criminal

2. (a) Petitioner / Appellant : Swati Agarwal & Others.

(b) E-mail ID : N.A.

(C) Mobile Phone Number : XXXXXXXXXXXX

3. (a) Respondent No. 1 : Union of India

(b) E-mail ID : NA.

(c) Mobile phone number : NA.

4. (a) Main category classification : NA

(b) Sub classification : NA

5. Not to be listed before : NA

6(a). Similar disposed matter with citation

if any and case details : N.A.

(b). Similar Pending matter with

case details : N.A.
(a) Whether accused/NA

convict has surrendered : Yes No

(b) FIR No. NA. Date : NA.

(c) Police Station : NA.

(d) Sentence Awarded : NA.

(e) Sentence Undergone : NA.

8. Land Acquisition Matters :

(a) Date of Section 4 notification : NA

(b) Date of Section 6 notification : NA

(c) Date of Section 17 notification :NA

9. Tax Matters : State the tax effect : NA.

10. Special Category (first petitioner/appellant only) :

Senior citizen > 65 years SC/ST Woman/child

Disabled Legal Aid case In custody

11. Vehicle Number (in case of Motor Accident Claim matters) :

Dated : 29.05.2019

(Ms. Sansriti Pathak)

Registration No.
Advocate for Petitioners