'What Public Interest?' : Supreme Court Rejects Plea Challenging Law Allowing Abortion Of Unwanted Pregnancies Due To Contraceptive Failures

A bench of Chief Justice DY Chandrachud, JB Pardiwala, and Manoj Misra was hearing a PIL filed by the non-governmental organisation Society for Protection of Unborn Child seeking a declaration that Explanation 1 to Section 3(2) of the Medical Termination of Pregnancy Act, 1971 was unconstitutional inasmuch as it violated Articles 14 and 21 of the Constitution.

As per Section 3(2), pregnancy can be aborted if its continuation causes "grave injury to the mental health of the pregnant woman". According to Explanation 1 to Section 3(2), "where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman". It is this provision which enables termination of unwanted pregnancies.

Right at the outset, the bench expressed its disinclination to entertain this petition, with the Chief Justice asking the counsel to approach a high court.

“And anyway,” Chief Justice Chandrachud continued, “You are challenging the provisions of the MTP Act on the ground that these provisions should not be given to them?”

The counsel attempted, “Only one of them. Registered medical practitioners are trained gynaecologists. He cannot assess the mental condition…”

“What locus do you have? How are you affected?” Chief Justice Chandrachud asked.

The counsel tried again, “This is a public interest litigation…”

The Chief Justice replied : 

“What public interest litigation to challenge the provisions of the MTP Act. The Parliament has made some provisions in the interest of women, and now someone just wants to…You better withdraw this and pursue whatever remedy you think you have.”

After the counsel agreed to withdraw the petition, the bench pronounced, “The petitioner seeks to withdraw the petition to enable the petitioner to move the competent high court. The petition is dismissed as withdrawn.”

Recently, another bench of the Supreme Court, headed by Justice BV Nagarathna, while allowing a 27 weeks pregnant rape survivor to undergo an abortion, restated the link between Article 21 and reproductive autonomy, with reference to the court’s seminal rulings on abortion rights. It reiterated that the right of every woman to make autonomous reproductive choices without interference from the State was central to the idea of human dignity –

“In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity.”

Case Title

Society for Protection of Unborn Child v. Union of India & Anr. | Diary No. 11029 of 2022

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