Poojan Bulani and Rishav Devrani, both students of Rajiv Gandhi National University of Law, Punjab discusses how the right of abortion of minor rape survivor overweights the right to life of foetus in the light of Medical Termination of Pregnancy Act,1971 and various judgments of the courts.


The pro-life versus pro-choice debate on the reproductive choice of a woman which made news last year was aimed at toppling the precedent set by Roe v. Wade[1], that had legalized abortion in the United States of America. Fortunately, the right to legal abortion is a basic human right protected by international conventions as well as national constitutions. 90 million or 5% of women of reproductive age[2] live in countries where abortion is still illegal. It becomes quintessential to discuss the status quo of the paradigm of the right in the second most populated country in the world. 

In a recent judgment, the Rajasthan High Court pronounced[3] that a minor rape survivor’s abortion rights exceed an unborn child’s fictional right to life. As the developing country has most of its population rural-based, children and women form a part of the population with no freedom of choice. While there exists the right to abort in many countries, approximately 41% of women[4] belong to countries with restrictive abortion laws. A division bench comprising Justice Sandeep Mehta and Dr. Justice Pushpendra Singh Bhati while reiterating a Supreme Court case of 2009[5] said that a woman’s right to reproduction was a fundamental right and that the right was inclusive of her choice not to reproduce. The pretext of such a verdict sheds light upon the Indian Jurisprudence regarding abortion.  


The Indian legislation on abortion took form under the aegis of the Shantilal Shah Committee that recommended legalizing abortion in India in 1966, erstwhile to which abortion was illegal and invited several penal provisions.[6] The criminalisation of abortion in the country could be viewed as an aftermath of the British reign that imposed catholic ideologies and beliefs wherein abortion was a sin. After Independence, the lawmakers endeavoured at uprooting the beliefs by enacting the Medical Termination of Pregnancy Act, 1971. 

However, the Act is a five-decade old law and is regarded as an obsolete piece of legislation that ignores the reproductive choices of women and panders to the security of medical workers rather than its subjects. The Act upholds the right to procreation including the right to abstain from procreation. However, the caveat remains that abortion would be allowed for in exceptional cases like a risk to the life of the woman or fetus.


Recently, the Union Cabinet approved the MTP (Amendment) Bill, 2020 which is the second time that the Act will be amended in its 49 years of existence.[7] The gestational limit is proposed to be extended from 20 to 24 weeks, although only for “special categories of women”. Whilst citing V. Krishnan vs. G. Ranjan[8], the court kept in purview that teenage pregnancies usually encompass complications and unsafe abortion can lead to maternal deaths. The India Journal of Medical Ethics in its 2015 report[9] cited unsafe abortions as one of the leading causes of maternal deaths in India.

Extension of the time-limit, hence, would ensure safety and aid in reducing the mortality rate.However, in a petition regarding the extension of the timeline for termination of pregnancy, the government sought that such extension should not be permitted.


The Indian judgment of the State Of Rajasthan & Ors. v. S. & Anr.[10] was a Special Writ Petition where the Court whilst overruling a single judge bench order from October 2019, emphasized that the right to life of a minor rape victim outweighs the right to life of the unborn child. The Constitution of India, under Article 21, guarantees the right to life as a fundamental right. However, the given case, by exceptional circumstances, invited case-specific analysis by the bench. The unraveling of the conundrum of comparative agony is a milestone set by this judgment. On one hand, it is the right of the minor female to abort, since the pregnancy arose out of rape causing grave injury to her mental health and on the other hand, the fetus’ right to life guaranteed by the Constitution. this becomes a landmark view considering how in umpteen cases the counter of an unborn child’s right to life often results in rape victims having to bear an unwanted pregnancy. Not only is this detrimental to the mental health of the victim but also places ambiguity around the environment in which the child shall be brought up. It is an undisputed fact that in a social setting of Indian community children born out of wedlock are deprecated. 


Five decades of a liberal law in place and yet, a majority of women lack access to secured abortion in India. The amendment will guarantee women safer access, increased availability, better technology, confidentiality, and quality of care. While America had a polarised opinion on abortion where approximately one half hailed a woman’s right to abort and the other considered abortion to be ‘destruction of life’, India’s opinion on abortion is not binary. Although abortion remains legal through statutes in place, there are structural constraints to a woman’s choice and assertive backlash against a woman’s right to abortion that need to be addressed.

Poojan Bulani and Rishav Devrani are fourth year students from Rajiv Gandhi National University of Law, Punjab.

[1]410 U.S. 113 (1973).

[2]Center For Reproductive Rights, https://reproductiverights.org/worldabortionlaws

[3]Infringement Of Right To Life Of A Rape Victim ‘Outweighs’ The Right To Life Of The Child In Womb’: Rajasthan HC Issues Directions For Termination Of Rape Victim, Network 11(11 June, 2020), https://www.livelaw.in/news-updates/rajasthan-hc-issues-directions-for-termination-of-rape-vitim-pregnancies-158155.

[4]Supra note 2.

[5]Suchita Srivastava & Anr v. Chandigarh Administration, (2009)9 SCC 1.

[6]Vinoj Manning, Medha Gandhi, Accessible Abortion, The Week (August 13, 2017) https://www.theweek.in/theweek/cover/accessible-abortion.html.

[7]VS Chandrashekar, Does the MTP Amendment Bill 2020 really advance Women’s Rights?, Business World (March 7, 2020), http://www.businessworld.in/article/Does-the-MTP-Amendment-Bill-2020-really-advance-Women-s-Rights-/07-03-2020-185470/

[8]1994 WritLR 91

[9]Shweta Krishnan, MTP Amendment Bill, 2014: towards re-imagining abortion care, IJME 43 Vol 12, No 1 (2015). 

[10]D.B. Spl. Appl. Writ No. 1344/2019.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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