Author: Nujhat Attar, Sinhgad Law College,Pune.

Abstract

 India has never had a standalone abortion right written into its Constitution. What it has instead is a patchwork: a 1971 statute that treats termination as a fenced-off exception to criminal liability, a 2021 amendment that widened the fence, and a Supreme Court that has spent the last three years arguing with itself about how far that fence should stretch. This piece traces that patchwork — its origins, its key terms, what the evidence shows on the ground, and the judgments that shaped it — before landing on a simple point: India talks about reproductive autonomy as a right, but the law still runs it like a favour that has to be requested and approved.

To the Point

Here’s the part that surprises most people: no Indian law says “a woman has the right to an abortion.” What exists is the reverse. Causing a miscarriage is a criminal offence under the Bharatiya Nyaya Sanhita (formerly the IPC), and the Medical Termination of Pregnancy Act, 1971 (the MTP Act) simply carves an exemption out of that offence. If a doctor certifies that a pregnancy fits certain boxes which is gestational age, medical grounds, sometimes a second opinion  the termination isn’t a crime. If it doesn’t fit, the criminal provision is still sitting there. Right has never really been about a woman’s decision it runs on a doctor’s sign-off.

The 2021 amendment loosened several of those boxes without removing the frame itself. It pushed the general limit from 20 to 24 weeks for certain categories of women, allowed a single doctor to approve terminations up to 20 weeks instead of two, scrapped any time limit where a Medical Board certifies a serious foetal abnormality, and — notably — stopped excluding unmarried women from the “contraceptive failure” ground. Useful changes, all of them. But past the 24-week mark, or in any contested case, a woman is still dealing with committees and, increasingly, courts.

Use of Legal Jargon

Article 21 is where all of this legal reasoning is anchored, the guarantee that no person is deprived of their life or liberty except through a fair, just, and reasonable legal procedure. The Supreme Court read privacy into that guarantee in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), a nine-judge decision that gave later reproductive-rights arguments somewhere to stand. Suchita Srivastava v. Chandigarh Administration (2009) had already made a related point years earlier: choosing whether to continue or end a pregnancy is itself an exercise of personal liberty, not a medical formality.

A few terms come up constantly here and are worth defining plainly. Gestational age is how far along a pregnancy is, counted from the last menstrual period — the number every gestational limit is built around. A Medical Board is a state-appointed panel, created under Rule 3B of the MTP Rules, tasked with certifying late terminations where there’s a substantial foetal abnormality. Article 142 is a separate, broader power — it lets the Supreme Court pass whatever order “complete justice” requires, and it’s what courts reach for when a case doesn’t fit neatly inside the MTP Act’s timelines. And when courts call gestational ceilings “reasonable restrictions,” they’re borrowing a proportionality test that actually comes from Article 19 case law, not anything specific to reproductive rights.

The Proof

Numbers and case data back up what the statute suggests on its face. A 2024 review by the Centre for Health, Equity, Law and Policy went through over a thousand High Court and Supreme Court rulings on medical termination between 2019 and 2024, and found something that courts donot apply the same ruling consistently. Two women with broadly similar facts can get opposite outcomes depending on which bench hears them.

There’s a simpler piece of evidence too, and it’s almost too obvious to state: none of these women wanted to be in court. Most petitioners seeking late terminations aren’t trying to bend the rules — they missed the window because a pregnancy wasn’t detected early, or a contraceptive failed, or their circumstances changed after the 20-week mark had already passed. If a right worked the way rights are supposed to work, these women wouldn’t need to file writ petitions to exercise it. Sterilisation cases point the same direction — courts have had to step in repeatedly to enforce basic consent standards at state-run family planning camps, which tells you the legal prohibition on coercion and the reality on the ground aren’t the same thing.

Case Laws

1. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 — The Court treated a woman’s choice about whether to continue a pregnancy as part of her personal liberty under Article 21, not a decision the state gets to make for her.
2. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 — This nine-judge bench folded privacy into Article 21 as a fundamental right, giving later reproductive-autonomy arguments a constitutional foothold they hadn’t had before.
3. X v. Principal Secretary, Health and Family Welfare Department, GNCT of Delhi, (2022) SCC OnLine SC 1321 — The Court struck down the practice of reading Rule 3B as if it only applied to married women, calling the distinction irrational, and confirmed that unmarried women have the same access to termination up to 24 weeks.
4. X v. Union of India, Writ Petition No. 1050/2023 — Faced with a viable, healthy 26-week foetus and no threat to the mother’s life, a three-judge bench refused to order termination, holding that Article 142’s extraordinary powers weren’t meant for cases like this one.
5. Devika Biswas v. Union of India, (2016) 10 SCC 726 — This case exposed unsafe, high-volume sterilisation camps and pushed the Court to mandate real informed-consent and safety standards for family planning procedures going forward.

Conclusion

 A 1971 law built entirely around criminal exemption. A 2021 amendment that widened access without changing the underlying logic. A 2022 judgment that treated marital status as irrelevant and leaned hard into autonomy. And then, barely a year later, a 2023 ruling that pulled back toward gestational limits and foetal viability as the deciding factors. That inconsistency isn’t a technical glitch — it reflects a law that has never fully decided whether termination is something a woman is entitled to or something she has to justify. Until gestational limits are treated as a starting point rather than a wall, and until a woman’s own account of her circumstances carries the weight it briefly did in 2022, “reproductive autonomy” in India will keep meaning autonomy with an asterisk.

FAQs

Q1. Is abortion legal in India?

Yes, within limits. Under the MTP Act as amended in 2021, a single doctor can approve termination up to 20 weeks, two doctors can approve it up to 24 weeks for specified categories of women, and there’s no time limit at all where a Medical Board certifies a serious foetal abnormality.

Q2. Can unmarried women access abortion on the same terms as married women?

Yes — this was settled by the Supreme Court in the 2022 Delhi case, which rejected marital status as a valid basis for denying access to termination up to 24 weeks.

Q3. What happens if a woman needs an abortion after 24 weeks?

Options narrow considerably. Beyond substantial foetal abnormality certified by a Medical Board, the only route is a specific Supreme Court order under Article 142 — and as the 2023 ruling showed, courts are reluctant to grant this once a foetus is viable and the mother’s life isn’t at risk.

Q4. Does the Constitution guarantee reproductive autonomy as a fundamental right?

Not directly. Courts have read it into Article 21 through the rights to personal liberty and privacy, but it functions as an interest that gets weighed against other factors rather than an absolute entitlement.

Reference 

• Medical Termination of Pregnancy Act, 1971 (Act No. 34 of 1971).

• Medical Termination of Pregnancy (Amendment) Act, 2021 (Act No. 8 of 2021).

• Medical Termination of Pregnancy Rules, 2003, as amended in 2021 (Rule 3B).

• Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

• Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

• X v. Principal Secretary, Health and Family Welfare Department, GNCT of Delhi, (2022) SCC OnLine SC 1321.

• X v. Union of India, Writ Petition (Civil) No. 1050/2023.

• Devika Biswas v. Union of India, (2016) 10 SCC 726.