The Legal Labyrinth: Navigating the Human Cost of Prosecution under Criminal Law for Abortion Services in the Trial Courts of Punjab
Dipika Jain, Krithika Balu, Vrishti Shami, Feroza Mody & Tavleen Kaur Saluja*
Volume 17 Issue 3 (2024)
Access to safe abortion in India is significantly hindered by a criminalising legal framework. §312 of the Indian Penal Code (‘IPC’), titled “Causing miscarriage”, penalises even voluntary abortions, despite exceptions provided under the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’). The MTP Act permits abortion services under specific conditions, but it only exists as an exception to the overarching criminal law. This article analyses 262 abortion-related cases adjudicated in the trial courts in Punjab between January 2013 and August 2024 to assess the judicial interpretation and application of abortion laws. The authors’ findings reveal widespread judicial misapplication and misinterpretation, with many voluntary abortion services — well within the gestational limits and conditions prescribed by the MTP Act — being subject to prosecution. Alarmingly, pregnant women who willingly sought abortion services within the legal exceptions of the MTP Act were frequently prosecuted. These cases highlight significant human costs, as §312 of the IPC is often misused by aggrieved spouses in marital disputes to harass pregnant persons and challenge their decisional autonomy. In several cases, spousal consent was erroneously treated as a prerequisite for abortion, undermining the rights and agency of pregnant persons. Additionally, §312 has been wrongly applied in cases involving forced abortions, which should instead invoke §313 of the IPC — a provision explicitly designed to address such a situation. Registered Medical Practitioners (‘RMPs’) are also frequently prosecuted under §312, even when their actions fall within the legal framework of the MTP Act. This misuse creates a chilling effect, discouraging RMPs from providing lawful abortion services and further restricting access to safe abortion care. The article advocates for the decriminalisation of abortion services and proposes an anti-carceral, intersectional approach to abortion access. Such an approach should prioritise reproductive justice, uphold pregnant persons’ decisional autonomy, and ensure safe, legal, and stigma-free abortion services in India.