Despite abortion being legal in India, women seeking abortion and doctors providing this service often face criminal charges and harassment due to the misuse and misinterpretation of a criminal law. An analysis of 262 cases registered in connection with abortions conducted across Punjab found a steep increase in the filing of such criminal cases even for voluntary abortion services well within the gestational period prescribed by law.
Though the Supreme Court has affirmed the right to safe and legal abortion for all women, regardless of their marital status, up to 24 weeks of gestation, the study showed how such cases were registered against women seeking abortion and their healthcare providers.
The study done by the Centre for Justice, Law and Society (CJLS) of the Jindal Global Law School was published in the NUJS (National University of Juridical Sciences, Kolkata) Law Review recently. The authors did a district-wise search for cases registered under Section 312 of IPC across 22 districts of Punjab. The study analyzes both disposed and pending cases from January 2013 to August 2024. Of the 262 cases registered, it found that 112 cases were recorded between 2013–2020, and 150 cases from 2021 to August 2024, indicating a steep and troubling increase.
Section 312 of the Indian Penal Code applies to anyone who voluntarily cases a woman to miscarry, except when it is done to save her life. The punishment is imprisonment for up to three years or fine or both. It is also applicable if a miscarriage is caused in a pregnant woman when the foetus is developed. This could attract imprisonment up to seven years and /or fine. Despite the Medical Termination of Pregnancy (MTP) Act offering statutory exceptions, it was invoked in only 9 out of 262 cases—a mere 3.43%—revealing a serious lack of legal awareness and judicial recognition of reproductive rights, pointed out the study.
In 37 cases, the termination of pregnancy was carried out with the full consent of the pregnant person, yet Section 312 IPC was still invoked to prosecute various parties—including the pregnant persons themselves.
Section 313 of the Indian Penal Code (IPC) which criminalizes causing a miscarriage without a woman’s consent was meant to protect a woman’s right to make decisions about her body and pregnancy. In 98 cases, Sections 312 and 313 were applied together—indicating non-consensual abortions. However, even the pregnant women were prosecuted in several of these instances. The study highlighted how the law was often misused by aggrieved spouses in marital disputes to harass pregnant persons and challenge their decisional autonomy.
The paper flagged the ease with which frivolous cases can be filed against abortion seekers and the frequent and erroneous insistence on spousal consent though there is no such legal requirement. The authors argued for decriminalization and a reproductive justice framework to ensure unfettered access to free, safe and legal abortion services and protection for healthcare providers from legal intimidation. The paper outlined the contradictions between the IPC and the MTP Act, the harmful effects of criminalisation on health and gender equality, and the systemic misuse of abortion laws for harassment.
