P&H High Court Seeks Response On PIL To Declare Medical Termination Of Pregnancy Unconstitutional Except When Mother's Or Child's Life Is At Risk

The Punjab and Haryana High Court today sought a response from the Union Government on a Public Interest Litigation (PIL) filed to declare that medical termination of pregnancy, except in circumstances where the life of the pregnant woman or the unborn child is in grave and imminent danger, is unconstitutional for being violative of Article 21 of the Constitution.

The plea also challenged that the provision Section 3(2) of the Medical Termination of Pregnancy Act, 1971 (MTP) read with its Explanation-1.

As per 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."

Chief Justice Sheel Nagu and Justice Sanjiv Berry asked the Union Government to file a reply and adjourned to September 16.

The PIL filed by Deepak Kumar, a resident of Haryana contended that "Explanation-1" of Section 3 (2) of Medical Termination of Pregnancy Act, 1971 as amended by "MTP Act, 2021" is not only violative of the Articles 14 and 21 of the Constitution but the same is also dis-proportionate and has no nexus with the object of the Act.

Counsel appearing for the petitioner Sanchar Anand contended that as per Explanation-1 permits a Registered Medical Practitioner to terminate the pregnancy on the ground of "grave injury to mental health of the pregnant women", but such Registered Medical Practitioner who is qualified in "gynecology and obstetrics" is not at all qualified to evaluate the mental health of a pregnant Women, "as he /she is not a Psychiatrist".

Therefore, such Registered Medical Practitioner, who is not qualified to assess mental health of a pregnant women cannot be allowed to terminate a pregnancy alleged to have "occurred as a result of failure of a device or a method used by a women or her partner to control pregnancy", simply by drawing a presumption that such pregnancy may cause "grave injury" to "mental health" of the pregnant women.

A Registered Medical Practitioner, as provided in Section 2(d) of the Act, who is qualified and trained in "gynecology and obstetrics", cannot be allowed to terminate a pregnancy after assessing mental health of a pregnant women, in as much as, he/she is not a "Psychiatrist", the plea added.

It was submitted that the provision is likely to be misused and the object of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act is frustrated as after illegally carrying out sex determination tests, fetus having a girl child are unscrupulous aborted by taking aid of Section 3 of Medical Termination of Pregnancy Act, 1971, by declaring that such pregnancy has been caused by failure of a device or a method to control pregnancy and that continuance of such pregnancy would cause a grave injury to mental health of the pregnant women.

Opposing the plea Senior Panel Counsel for the Union Government Dheeraj Jain submitted that, It is the effect of the pregnancy that is assessed by the gynecologist, not the mental health condition of the pregnant woman. Therefore, a trained psychiatrist is not required—only a gynecologist.

Furthermore, he contended that it is well established that the "right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution" and the right to abortion is a concomitant right of dignity, autonomy and reproductive choice.

This right is guaranteed under Article 21 of the Constitution. The decision to terminate pregnancy is deeply personal for any person and the choice exercised by a pregnant person is not merely about their reproductive freedom but also about their agency as recognised by this court in X v. State (NCT of Delhi), reliance was placed on Supreme Court's judgement in A (Mother of X) v. State of Maharashtra.

Title: Deepak Kumar v. UOI & Ors.

Advocates Sanchar Anand, Pankaj Nanhera for the petitioner.

Advocate Dheeraj Jain, Sr. Panel Counsel for Union Of India.