INTRODUCTION:
Medical termination of Pregnancy Act, 1971 (the “Act”) was enacted to provide for the termination of certain pregnancies by registered medical practitioners and matters related in addition to that or accompanying that. Section 3 of the Act provides for the instances where a medical practitioner can terminate the pregnancy. However, as per clause 2 (b) of the Act pregnancy beyond 20 weeks can only be terminated if it is necessary to save the life of the woman and with the consent of two medical practitioners and not otherwise. This is a clear violation of Fundamental Rights under Article 21 of the Constitution of India which provides for personal liberty, right to health; right to choose etc. to be exercised by an individual. The underlying issue here is whether to treat the whole Section to be unconstitutional or only clause 2 (b) of the Act.
Article 13 is considered to be the key and protective provision to make fundamental rights justifiable. It prescribes the state from enacting any law which takes away entirely or in a fraction the Fundamental Rights of the citizen of India. Article 13(2) of the Constitution of India states that the State ‘shall not make any law’ which is in contradiction to the Fundamental Rights and if so; the law to the extent of the infringement is annulled. So, it can be inferred that the right of the legislature to make any law is restricted to the extent that it cannot enact laws inconsistent with the fundamental rights of the citizens. This doctrine is called as Doctrine of Severability.
The article tries to answer the question about whether Section 3 (2) (b) of the Act violates the fundamental rights of the mother or not and hence questions the Constitutionality of the aforesaid mentioned Section 3 (2) (b) of the Act and whether and how Article 13 (2) can be invoked here.
Doctrine of Severability
The doctrine of Severability accounts for treating a part of the law void and illegal if the said part of the law is against constitutional limitation. Still, the other part if valid will not be upheld by this doctrine. But the emphasis has to be made on the fact that if a law is capable of being used for legal and illegal purpose both, the doctrine does not only bar the impugned statute from being used illegally but also for legitimate purposes.
It has to be pointed here that test of severability cannot be taken before the Constitutionality of an act or provision is determined. While determining the Constitutionality of an act, if the Court finds only a part of a statute to be violative of Fundamental Rights, it has to look into the intention of the legislature, i.e. whether a legislature is capable of enacting the ordinance with the contravening part.
Also, there are specific tests which have to be followed before applying the Doctrine of Severability.
To check whether the part remained which is mixed with the part affirmed invalid that, it could not survive independently;
To check whether the invalid part is subsequently different from the subject matter of the remaining part.
Since the impugned Section does not account for the personal liberty and rights of the mother and her health as provided under Article 21 and the right to exercise reproductive choice is also constitutionally rooted under Article 21 through the score of judicial decisions and precedents, it is important to apply the doctrine. But the question here is whether the entire Section is to be declared unconstitutional and struck down on the ground that it violates Article 21 or only that part which accounts for this provision.
How to determine the Constitutionality of an Act?
If the laws need to be constitutional and justifiable, the needs to be met, which is a ground for judicial review in cases of administrative action. In today’s era, administrative bodies are provided with a wide ambit of powers through which they exercise discretionary powers and sometimes use it arbitrarily. So, to keep a check on how these powers are exercised in administrative action, the doctrine of proportionality is exercised. The doctrine of proportionality was laid down in the case of Modern Dental College and Research Centre v. the State of MP and further discussed in the case of K S Puttaswamy v. Union of India which stated that when the limitation is proportional, only then it can be treated as constitutional.
There have been many cases which have invoked this doctrine to check whether the particular provision, Act or any step taken by the government is in contradiction to Fundamental Rights or not. Recently, while Article 370 was struck down, Supreme Court clearly said that Doctrine of Proportionality has to be met while imposing curbs on movement, telecom and internet services in Jammu & Kashmir and Section 144 of Crpc was immediately reviewed to allow the aggrieved person to challenge those suspensions. Also, as per the order, any decision or Act which curtails the Fundamental Rights without proper justification has to be classified as proportionate.
Is Section 3 (2) of the Medical Termination of Pregnancy Act constitutional?
Section 3 (2) of the Act is entirely in contradiction to the Fundamental Rights provided under Article 21 of the Constitution of India which provides to every citizen to exercise their right to life, personal liberty and privacy. On the contrary, Section 3 (2) does not satisfy the test of Constitutionality as stated above; it does have an inconsistent impact on the right holder by giving the sole right to continue with the pregnancy to be vested with medical practitioners and only if the medical practitioner has granted her permission to abort her child otherwise not.
Women have an absolute right to exercise their reproductive choices as laid down in the case of Suchita Srivastav v. Chandigarh Administration, in which the Court held that, women’s right to make reproductive selections is a facet of “personal liberty” under Article 21 of the Constitution of India. Also, in the Puttaswamy case, it was held that the choice of exercising reproductive freedom is rooted constitutionally under the right to life and personal liberty under Article 21 of the Constitution. So, women have the full right to choose whether to terminate the pregnancy or not contrary to this provision which sets certain restrictions on their right to exercise reproductive choices. The final deliberation is that women’s right to privacy, dignity and bodily integrity should be respected and restriction can be placed on the reproductive choices exercised by the women. So, the particular Section does not provide effective choices to the women if she wants to terminate the pregnancy which exceeds 20 weeks.
Supreme Court, in various cases, has allowed women to undergo medical termination of pregnancy on the ground that right of bodily integrity calls for permission to allow her to terminate her pregnancy. Also, the Centre is in the process of amending the) Act and the final draft of the 2019 Amendment bill is pending with the Ministry of Law and Justice for vetting with the proposal of increasing the limit beyond 20 weeks.
Right to health vis-a-vis MTP Act
In the case of Devika Biswas v. Union of India, it was held that Article 21 includes the right to “access a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free and responsible decisions about their reproductive behaviour.” The Right to health, being a crucial right is undermined by the government by way of this provision.
In Priyanka Shukla v. Union of India, the Delhi HC while dealing with a petition for quashing Section 3(2) (b) of the MTP Act, 1971 held that Section 3(2) has to be read in consonance with Section 5 of the Act which provides for termination of pregnancy in cases where it is necessary to save the life of the pregnant women, the Court held that these provisions have to be construed as a part of cumulative dispensation and not isolated from each other. However, the Court had narrowed its reasoning only based on MTP Act while the right to health which has been considered as an essential facet of right to life seems to have been ignored by the honourable Court.
The Human Rights Committee while dealing with a case of denial of abortion in a situation where the foetus is suffering from severe complications held that such denial violates the woman’s right to freedom from inhuman, cruel treatment as it leads to severe mental distress, something which was preventable.
Even the International Federation of Gynaecology and Obstetrics (FIGO) recognize that the decision to terminate the pregnancy must lie with the parents. The case of Nikhil Datar v. Union of India highlights the issue of mental health of a pregnant woman in case complications arise in the pregnancy wherein the court contradicted itself by negating the need of termination although there was a low possibility of a healthy life of the child while also upholding the woman’s liberty to continue with the pregnancy even after knowing the reality.
Conclusion: A way forward
The Doctrine of Severability under the Constitution of India is an essential principle for the protection of Fundamental Rights of the citizens of India. It is a tool to test the validity and Constitutionality of pre and post-constitutional laws. Deriving principles from various nations around the world, it helps in establishing the Natural Justice principle and to look into every Act that violates or tend to violate the Fundamental Rights of a person. Section 3 (2) (b) of the Medical Termination of Pregnancy Act, 1971which says that pregnancy can only be terminated beyond 20 weeks if it is necessary to save the life of the mother is constitutionally invalid. So, the question before the Court is to determine whether the entire Section is to be held invalid or only the part which takes away the Fundamental Rights of the women. Courts in various cases have held that the present Section does not account for any violation of Fundamental Rights of the women, but we cannot overlook the fact that this Section provides sole power to the government and the medical practitioner to have the right over women’s body and is manifestly arbitrary by not giving women an absolute right to terminate their pregnancy
Section 3 of the MTP Act talks about the conditions when the Medical Practitioner is allowed to terminate the pregnancy of a woman which includes within it the conditions like when the pregnant woman is less than 18 years of age, where the health of the women is in question among other things. So, the entire Section cannot be treated as unconstitutional but the clause 2 (b) of Section 3; hence, the Doctrine of Severability is applicable here, and the Court has to take the personal liberty and privacy of a woman on the high pedestal and treat the Section 3 (2) (b) of the MTP Act as constitutionally invalid and strike it down.
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