Indian Law Institute Journal of The Indian Law Institute

IMPACT OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 : A CASE STUDY
Author(s): R. V. Kelkar
Source: Journal of the Indian Law Institute, Vol. 16, No. 4, SYMPOSIUM ON POPULATION
CONTROL AND THE LAW (October-December 1974), pp. 593-625
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950394
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IMPACT OF THE MEDICAL TERMINATION OF
PREGNANCY ACT, 1971 : A CASE STUDY
R.V. Kelkar
Introduction
THE MEDICAL Termination of Pregnancy Act, 1971 (hereinafter referred

to as the MTPÁ) came into force on April 1, 1972.1 It makes far-
reaching changes in the earlier law relating to induced abortions. The
main aim of the present study is to explore the question whether or not
changes in practice are likely to follow the change in the law. For this
purpose, an attempt has been made to assess the opinions and attitudes of
policemen, prosecutors, and judges who have been enforcing penal sanc-
tions against illegal abortions in the past, and the initial impact of the new
law upon those opinions and attitudes. An attempt has also been made to
gather initial reactions of members of the medical profession about the
MTPA, its probable effect on professional ethics in relation to induced
abortions, and the difficulties that medical practitioners may experience in
working under the MTPA.
This is a case study of the city of Sangli in the State of Maharasht-
ra, where the field work was done. Occasionally, however, comparisons
are made with the situation in the Union Territory of Delhi and other parts
of Maharashtra. A study of this nature cannot come up with concrete
conclusions.2 Nor are the findings necessarily applicable to other parts of
India. By showing how the old law worked, and how the new law is likely
to work, in one city, however, it is hoped that it will throw some light on
the process of social change through law and, perhaps, stimulate further
studies in this area.
The case study is based primarily on interviews and it must be
recognized that the observations made by the respondents may not be of
universal validity. The persons interviewed represented the different groups
mentioned above, but they do not, of course, pretend to speak for their
professions.3 The author is conscious of the danger involved in drawing
1. The Gazette of India , March 11, 1972, Pt. II, sec. 3 (/), p. 708.
2. However, the author does submit in an annexure suggestions for some
modifications in the MTP Rules.
3. The persons interviewed include :
Deputy Director, Health Services, Government of India - 1; Deputy
Director, Health Services, Maharashtra - 1 ; civil surgeons, Sangli
district - 2 ; assistant district health officer (family planning, maternity
and child welfare) - 1; Principal, Medical College, Miraj-Sangli- 1 ^
gynaecologists - 5; surgeons - 2; registered medical practitioners noti
qualified for the purposes of the MTPA - 6; police officers,^^ public
prosecutor - 1 ; judges (sessions court) - 2; magistrate - 1.
594 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 4
generalized conclusions from inadequate generalized and unrepre

data and makes no attempt to do so. On the other hand, the int
were conducted in depth and can, perhaps, provide a clearer unde
of the variations and shades of attitudes and opinions than w
possible from any more comprehensive polling of an entire profe
conclusion, this paper reviews some of the weaknesses of the MTP
rule framed under it, and suggests ways of rectifying them. Em
placed on weakness which may hamper practical implementation
MTPA and reflects the information gathered from official record
interviews with medical practitioners, judges, prosecutors, police
and concerned government officials.5
Choice of survey area
There are several reasons behind the choice of Sangli city in
Maharashtra as the location for a field study. Maharashtra is generally
considered to be among the more active states in so far as the family
planning programme is concerned. In that state, Sangli, although relatively
small in area, is regarded as a progressive district from the standpoint of
development and planning, including family planning. If an awareness of
the implication of the new law on abortion is to be found anywhere it would
be here. Nor was the city's size a drawback, but rather an additional
argument in its favour since it is not too big for easy analysis. Finally,
the city is well known to th? author and personal connections made entrée
easier.6
Background information
(a) Sangli district

Sangli district is located on the southern border of Maharashtra.
Its area and population, according to the 1971 ceusus, is given in Table 1.
Table 1
Sangli district
Urban Rural Total
Population 286,898 1,252,922 1,539,820

Sex Ratio* 893 962 949
Area 279.5 8,283.5 8,563
sq. k.m. sq. k.m. sq. k.m.
* Females per 1000 males.
4 The official
Sangli, Sangli ci
Sangli district.
5. Supra note 3
6. The author
assistance given
Sangli. It is not
personal introd
remained closed
1974) ÍMPAČT ÔF TtìE MTPA : A ČAŠE ŠTUĎY 5$5
Within this district there were some 332 registered medical p

tioners according to the information available from the "Medical Dir
1972, "7 compiled by the Kolhapur Medical Representatives Associa
and the Miraj-Sangli Medical Representatives Association. Table
a more detailed breakdown.
Table 2
Registered medical practitioners in Sangli district
Description of registered medical practitioners Urban Rural Total
Registered medical practitioners having

medical qualifications as defined in
A clause (h) of section 2 of the Indian
Medical Council Act, 1956 164 15 179
Registered medical practitioners not
B having such qualifications as mentioned
in (A) above. 67 86 1 53
Total A &B 231 101 332
According to section 2 (< d ) of

who fall into category (A) of Tab
(and then only if they meet add
centration of these doctors in urban areas is a remarkable feature of
Table 2.
( b ) Sangli city
Sangli is the largest city in Sangli district and serves as the district
headquarters. It is an educational centre with a number of schools and
colleges including one medical college about six miles away. It has long
been a market centre for agricultural produce and a commercial centre as
well. Recently, it has begun to attract small industries. Many new ones
have been started, and soon it should be humming with industrial activity.
According to the 1971 census, the population of Sangli was 115,138.
However, the municipal records indicate that there has been an increase
since, and that the population stood at 123,000 in October 1972. These
records show 3428 births and 1066 deaths in the city in 1971 and 300, 369
and 345 births, respectively, during the months of July, August and
September of 1972.
From the list of members of the Sangli branch of the Indian Medical
Association, and also from the "Medical Directory, 1972", 7 it appears that
there were 102 registered medical practitioners in Sangli city, 72 of them
7. Jointly compiled by the Medical Representatives Associations of Kolhapur

and Miraj-Sangli.
Š96 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 4
having qualifications defined by clause (A) of section 2 of the Indian Medical

Council Act, 1956. The remaining 30, who are not so qualified, would not
be recognised as registered medical practitioners for the purposes of the
MTPA. Many of the consulting physicians, surgeons, and gynaecologists in
Sangli already enjoy a busy and lucrative practice. Most of the people
utilize the services of the Sangli District (Government) Civil Hospital which
is located in Sangli. In addition, there are a few other surgical homes and
hospitals and a number of maternity hospitals.
Enforcement of the anti-abortion law prior to the MTPA
(a) Incidence of legal proceedings
All abortion offences are covered by sections 312 to 316 of the Indian
Penal Code, 1860, and are triable only in a sessions court.8 In Sangli
district there is only one sessions court, located in Sangli city, and all such
offences committed within the district would necessarily have been tried in
this court.
The records of the Sangli sessions court show that only two abortion
cases were tried and decided by this court during the almost seven-year
period from January 1, 1965 to June 20, 1972. In addition, one complainant
filed a revision petition against the order of a judicial magistrate who
discharged the accused during committal proceedings for an alleged abortion
offence.9 In all the three cases the persons charged were held not guilty.10
The following table indicates the incidence in Sangli of the court cases
arising not only from abortion offences but other, related offences as well.
The figures relate to the "causing of miscarriage; injuries to unborn children;
exposure of infants and the concealments of births", and are taken from
"Annual Statement No. 11, Criminal (Statement of Nature of Offences
Reported and Number of Persons Tried, Convicted and Acquitted of each
Case of Offence)", officially prepared by the district and sessions court at
Sangli. There was no breakdown available to show separately offences under
sections 312 to 316. However, when these figures are considered along with
the sessions trials noted above, it is clear that very few cases of this type are
reported or brought to trial. In even fewer instances, the accused is
convicted and punished.
8. The Code of Criminal Procedure, 1898, s. 28 and the second schedule, eighth
column. The position has been slightly changed since April 1, 1974 when the new Code
of Criminal Procedure, 1973 came into force. Now abortion offences covered by
section 312 of the Indian Penal Code are triable by magistrates, first class; the offences
under other sections continue to be tried by the sessions court. See column 6 of the first
schedule appended to the Code of Criminal Procedure, 1973.
9. Since abortion offences are triable only by a sessions court, a preliminary
inquiry has to be held by a magistrate to determine whether there is a prima facie case
on which the accused can be held. If no prima facie case is made out, the accused would
be discharged. See ss. 206, 207, 209, Criminal Procedure Code, 1898. The new Code
of Criminal Procedure, 1973 does not, however, make any provisions for such committal
proceedings.
10. Copies of the judgments in these cases were obtained for study.
1974] ÍMPAČT ÒF THÈ MTPA : A CASE STUDY 597
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$98 JOURNAL ÔF THÈ INĎIAN LAW INSTITUTE [Vol. 16 8 4
(b) Difficulties in prosecuting
One of the factors that has contributed to the rarity of lega

proceedings in respect of abortion offences, and to the even smaller numb
of successful prosecutions, is the difficulty posed by the need for adequa
evidence to prove the pregnancy and the abortion.11 The medical examin
tion of a patient soon after an abortion operation can reveal the fact of t
pregnancy and its termination. However, no one, much less an accused,
,can be compelled to submit to a medical examination.12 Anyone who forc
her to do so exposes himself to the risk of tort-claims and prosecution
and she can also resist, exercising the right of private defence within th
limits provided by law.13
Although a medical examination is possible with the consent of the
accused,14 it is, of course, unlikely that any accused woman aware of h
rights will consent to undergo such an examination. Surprisingly, th
accused women in the two sessions cases referred to earlier, namely, State
Putalabai , and State v. Kamal ,15 seem to have submitted to medical examina-
tions without any apparent protest. They may not have been aware of
their rights, or may have been confident of their innocence (as the court late
held) in which case the examination would tell against the prosecution.
Apart from the difficulty in establishing the facts of pregnancy and
abortion, further evidentiary hurdles face the prosecution in proving th
the abortion was not natural or accidental, but induced, and that it was th
accused who caused it. Court records16 as well as interviews with judges1
indicate that the prosecution is usually unable to successfully surmount these
problems.
(c) Incidence of illegal abortions before the MTPA
The annual number of illegal abortions before April 1, 1972, 18 is

estimated to have been very large. No attempt could be made to assess the
11. Interviews of June 18, and October 5, 10 of 1972 at Sangli.

12. Before the coming into force of the Code of Criminal Procedure, 1973, there
was no law whereby an accused could be compelled to submit to a medical examination ;
see Bhonderv. Emperor , A.I.R. 1931 Cal. 601 at 602. The examination of the accused
by a medical practitioner at the request of the police officer (or at the request of the
arrested person) would now be possible. See ss. 53 and 54 of the Code of Criminal
Procedure, 1973.
13. Deoman v. State , A.I.R. 1959 Bom. 284.
14. Hanuman Sarma v. Emperor , A.I.R. 1932 Cal. 723.
15. PutalabaVs case, sessions case No. 4 of 1965, decided by the Additional
Sessions Judge, Sangli, on March 24, 1965; and KamaVs case, sessions case No. 69 of
1969, decided by the Sessions Judge, Sangli, on February 6, 1970.
16. ibid.
17. Interviews of June 18, 21, and October 10 of 1972 at Sangli.
18. The MTPA came into force on this date.
i 974] í MP ACT OF THE MTPA : A CASE STUDY 599
incidence of such abortions in Sangli district as a whole.19 Estimates fo

city, however, ranged between a conservative 120-14420 and 2000. Mo
the registered medical practitioners interviewed were of the opinion
between 1000 and 1500 illegal abortions take place in Sangli city e
year.21
(i d ) Illegal abortions : non-cognizable and victimless crimes
In the rare instances in which legal proceedings in respect of illegal

abortions were begun, it was the opinion of at least one judge that the
alleged abortions were generally connected with the halting of pregnancies
growing out of real or supposedly illicit sexual relations.22 In such cases the
anti-abortion law was used as a weapon by persons enraged by the illicit
conduct.23 There were very few instances coming to the notice of a court
where an unwanted pregnancy was terminated for a married woman with
the consent of the woman and her husband. In such a case, the illegal
abortion would be, in a sense, a victimless crime, and would naturally receive
far less attention by the law enforcement authorities. The low level of
interest of the law enforcement officials in most abortion offences is accent-
uated by the fact that all such offences are non-cognizable.24 In the case of
a non-cognizable offence a police officer cannot arrest the accused without a
warrant, and cannot investigate the alleged offence without the order of a
19. While talking to the medical practitioners practising in Madhavanagar,

Haripur, and Nandre (places near Sangli city, with populations of 10,000, 3000, and
8000, respectively), it was learnt that the induced abortions annually at these places were
roughly 200, 8, and 75, respectively. (Interview of October 7, 1972 at Madhavanagar;
and interview of October 10, 1972 at Sangli.)
20. Interview of October 5, 1972 at SanglL
21. Interviews of October 6, 7, 9, 10, 11 of 1972 at Sangli. It is interesting to
compare these estimates with the observations made in the Report of the Committee
to Study the Question of Legalization of Abortion (popularly called the Shah Committee
Report). At page 18, the committee observed :
Some guesses can be made on the magnitude of the problem. If it is
assumed that for every 73 live births 25 abortions take place of which 15
are induced, the number of abortions annually in a 1000 population may
be approximately 13 - 5 natural and 8 induced (corresponding to the
estimated birth rate of 39). Ina population of 500 million, the number
of abortions per year will be 6.5 million - 2.6 million natural and 3.9
million induced.
22. Interviews of June 8, 21 of 1972 at Sangli; it is also illustrated by cases

referred to in supra note 15.
23. Interviews of June 18, 21 of 1972 at Sangli.
24 All these offences are covered by ss. 312-316 of the Indian Penal Code and
must be considered non-cognizable in light of section 4 (1) (/) and ( n ) and of column 3
of the second schedule of the Code of Criminal Procedure, 1898. Under the new Code
of Criminal Procedure, 1973, abortion offences under s. 312 continue to be non-
cognizable, while offences under ss. 313-316 have been made cognizable (see first
schedule of the 1973 Code).
600 JOURNAL ÒF THE INDIAN LAW INSTITUTE [Vol. i 6 : 4
competent magistrate.25 Prosecuting an abortion offence, therefore, would

involve a lot of work for the police.
(i e ) Police and law enforcement
Sangli city with its population of over 115,000 has only one police
station. This might be thought to impair the effectiveness of the police
force; however, the Sangli police are not considered in any way inferior to,
or less efficient than, their counterparts in other similar cities of
Maharashtra.26
It would be unrealistic to expect that the large number of illegal
abortions in Sangli has gone unnoticed by the police. The police are, in
fact, well aware that abortion offences have been taking place, although
their estimate of the frequency is lower than that given by others.27 They
receive information about these crimes in many ways, often including
anonymous letters, and it seems clear that they have a pretty good idea
about the identities and activities of at least some of the professional
abortionists.28
This being the case, it is reasonable to ask why there have not been
any abortion cases from Sangli city brought before the sessions court for
trial.29 According to the officer in charge of the Sangli city police
station, the police usually avoid taking action out of consideration for the
clientele of abortionists who are generally pregnant unmarried girls or
widows caught in a difficult situation. Any prosecution would mean more
trouble for such unfortunate women.30
The fact that the abortion offences are non-cognizable offences has
made it legally permissible for the police to adopt this humanitarian
approach, and has undoubtedly influenced their attitude. In the case of
a cognizable offence, there is a positive duty placed on police officers to
detect offenders and bring them to justice. Any violation or wilful neglect
of such duty may expose the officers to certain penalties.31 This duty,
however, does not exist in the case of non-cognizable offences such as
abortion. Considering how difficult it is to collect adequate evidence, it is
not surprising that the police do not go out of the way to make work for
themselves when they are not under a duty to do so.
25. Ss. 4 (1) («), and 155 of the Code of Criminal Procedure, 1898. The Code
of Criminal Procedure, 1973 does not make any change in this position.
26. This is the impression received from discussions with officials and private
persons in Sangli city.
27. According to the estimate made by a police officer, the number of such
abortions may be 10-12 per month. (Interview of October 5, 1972 at Sangli).
28. Interview of October 5, 1972 at Sangli.
29. All the three sessions cases in the last seven years were from places other
than Sangli city. (See the cases referred to earlier, supra note 15).
31. Ss. 23 and 29 of the Police Act, 1861.
1974] IMPACT OF THE MTPA : A CASE STUDY 601
There is one more aspect which invites attentio

abortion operation is not handled by an abortionist with
in safe and hygienic conditions (which, allegedly, is quit
the health of the pregnant woman may be impaire
endangered. When that happens, and when the patient
ment or public hospital for treatment of the complicat
seem to be a greater likelihood that the criminal proce
action against the abortionist. Significantly, however,
far, been any such cases brought before the Sangli sessio
one judge was familiar with two cases which were tried elsew
The police have not received any formal complain
abortions within the last two to three years.33 The reas
known and it is somewhat surprising since there is depe
indicate that there have been illegal abortions caused by
during that time.?4 There is also evidence which sugge
gynaecologists have caused abortions which were not stri
was no indication as to whether or not cases involv
abortion attempts, or cases involving post-abortion com
been admitted to the government hospital recently. If
were taken by the authorities against persons responsib
that some afflicted women suffered silently instead of
it is likely that those who did go to the hospital were
secretly by competent private surgeons or gynaecologi
true that almost all gynaecologists, and some of the su
interviewed admitted causing abortions even when they
permissible by law. They said they had no fear of polic
added that as a precaution they would only accept cases
to them or of those who approached them through know
Considering the almost complete absence of legal pr
general disinclination of the police to take initiative in
prosecution of abortion offences, the apparent high in
abortions, and the lack of concern for the law among t
operations, it can be reasonably concluded that the anti-a
of the Indian Penal Code, as they existed before the com
the MTPA, were crippled, ineffective, and a dead letter.
Implementation of the MTPA: diverse reactions
The MTPA was passed on August 10, 1971. Under po

upon it by section 6 of the Act, the central government fra

33. Interview of October 5, 1972 at Saneli.
34. Interviews of June 2, 11, and October 5. 6. 7. 9 10 11 nf l<m nt Censii
35. Interviews of June 14, and October 6, 9, 10, 11 of 1972 at Saneli
36. Interviews of October 9, 10 of 1972 at Sangli.
6ÙÏ JOURNAL ÒF THÈ IŃDI AŃ LAW INSTITUTE [Vol. 16 : 4
February 19, 1972. Both the MTPA and the rules were made effective
on the same day, viz, April 1, 1972. Section 7 of the MTPA allows th
state governments to adopt regulations. Those drawn up by the Govern
ment of Maharashtra are an almost verbatim copy of chapter III of the
rules. Chapter III applies exclusively to union territories, but its copy is
made applicable within the State of Maharashtra in the form of regulation
A "state board" under rule 3 (5) has also been constituted to "approv
hospitals and certify doctors.
{a) Views about the objects of the MTPA

Popular impressions and expectations about the MTPA are bound to
affect its interpretation and implementation. According to official pron
uncements, the MTPA has been conceived (/) asa health measure- wh
there is a danger to the life or risk to physical or mental health of the
woman; (//) on humanitarian grounds - such as when pregnancy arises fro
a sex crime like rape ör intercourse with a lunatic woman, etc.; an
(iii) eugenic grounds-where there is substantial risk that the child, if bor
would suffer form deformities and diseases.37 Not everyone accepted thi
statement at face value, however.
In Sangli, there appeared to be substantial agreement upon the need
to liberalize the old law, but some expressed doubts as to whether t
avowed objectives of the MTPA were the real reasons for its passage. Civi
surgeons and other government officials categorically denied any intentio
to use the MTPA as a population control measure or for the purpose of
preventing births in normal cases.38 Nevertheless, many non-officials,
including gynaecologists, surgeons and other registered medical practi-
tioners, the principal of the medical college, and a judge, were all convince
that, whatever the declared objectives, the MTPA would be used by the
government agencies as a technique for controlling population or as anoth
weapon in the arsenal of the family planning programme.39 Some of the
37. See the Statement of Objects and Reasons of the Medical Termination of
Pregnancy Bill, 1969, Gazette of India , Extra., November 17, 1969, Pt. II, sec. 2, p. 88
38. Interview of July 7, 1972 at Bombay; and interviews of June 3, 11, and
October 5, 6 of 1972 at Sangli.
39. Interviews of June 9, and October 6, 9, 10, 11 of 1972 at Sangli. In th
connection it is interesting to note an advertisement that appeared in the Times of In
(Delhi Edition) of August 16, 1972. It ran as follows :
" Special Tubectomy Camp.
Irwin Hospital, New Delhi. (21st August to 30th September 1972)
[Irwin Hospital is a government hospital]
Special facilities :
1. Every acceptor will get Rs. 25 in cash....
4. Special arrangement for sterilization along with medical termination of

pregnancy.
Directorate of Health Services, Delhi Administration, Delhi."
Î9?4] IMPACT OF THE MTPA : A CASE STUDY 603
did agree that the MTPA might not be used openly as a popu
measure right away, but in course of time it would be s
of the medical practitioners had no objection to the MTPA b
such purposes.
It is too early to express any firm opinion about the co
the conflicting views. However, it may be significant that
induced abortions performed in Sangli civil hospital betwee
the end of September, 1972, and in most of the 6700 induc
throughout India during the same period, the reason given f
operation was the failure of contraceptive devices.40 Gr
Forms G and H of the Medical Termination of Pregnancy
(hereinafter referred to as MTP Rules) apparently allow
practitioner to terminate a pregnancy on the basis of a
alleging the failure of a contraceptive device without anyth
way of proof.41 The central government has laid down cert
for implementing the MTPA in the states and union territor
these guidelines are intended to provide administrative proc
sometimes give the impression that the MTPA is an adjunct o
ment sponsored family planning programme.42
These are no more than "straws in the wind", but at least the
there is some foundation for the non-official view-point tha
intended to be used as a family planning measure.
( b ) Preparation for implementation
For administering the MTPA in Maharashtra, it was nec
of all to constitute a "state board" under rule 3 (5). Even th
board was constituted, however, it did not mean that hospitals began
immediately to offer abortion operations. The Sangli civil hospital, for
instance, did not start to do so until July, 1972. First, there were technical
arrangements to be made before the operations could be performed, and
after these were completed the hospital had still to wait until it received
final instructions from the higher authorities.43
Nor were there alternatives. As late as October 5, 1972, Sangli civil
hospital (established and maintained by the state government) remained the
only place in the whole Sangli district where non-emergency abortions
could be legally performed under the MTPA.44 One private medical
practitioner's maternity hospital had applied for the necessary approval and
registration under section 4 of the MTPA, read with rule 6. That approval
has since been received.45
40. Interview of October 5, 1972 at Sangli; and interview of December 7, 1972

at New Delhi.
41. The MTP Rules, second schedule, Form G and Form H.
42. Guide lines, pp. 4, 5; and proforma attached to guide lines (particularly
when indications (/) and ( g ) are provided in addition to ( b ) and (c) in the proforma).
43. Interviews of June 3, and October 5 of 1972 at Sangli.
604 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 16 : 4
The situation was uncertain as far as emergency abortions

concerned. According to section 5 of the MTPA, a registered m
practitioner as defined in section 2(d) (though not having the exp
and training prescribed by the rules) can alone terminate a pregnanc
such termination is immediately necessary to save the life of a pr
woman. In such a case, some of the requirements of the MTPA, in
the requirement limiting the location of the operation to approved
would not apply. Most medical practitioners, and even officials, ag
that no adequate medical facilities have yet been provided in place
than Sangli (and particularly in villages) for the termination of preg
in cases of emergencies as contemplated by section 5 of the MT
One person pointed out that an ordinary registered medical practi
without specialized experience and equipment would not be abl
much to save the life of the woman in such an emergency and th
proper thing to do would be to remove her to the nearest hospita
was equipped with the necessary facilities. It was estimated, by a r
sible goy£rnment official, that in Sangli district the patient wou
have to be transported more than 40 miles in order to reach s
hospital, and that with the means of transport available to the pe
journey should take about two hours.46 Another high ranking gove
official impliedly accepted the position that medical facilities which mee
stringent standards of section 5 of the MTPA cannot be made avai
the near future. He added that the government was making an ef
supply far off areas with adequate medical facilities, but that this
could only be carried out in planned phases.47
(c) Financial assistance

A senior state government official complained that the Mahara
was not receiving any financial aid from the central government
implementation of the MTPA in Maharashtra.48 An official o
central government said that the centre was not in a position
financial aid to the states for the purpose. She argued that the
should rationalize their own resources and that if they did so they
be able to make adequate arrangements to meet the current deman
abortions under the MTPA.49
(d) Availability and training of personnel
In the opinion of one Sangli civil surgeon, there were half a d
46. Interview of June 3, 1972 at Sangli; however, in the interview of J

1972 at Sangli, a doctor expressed the view that considering the transport f
available in Sangli district, patients from far off places might take about three
reach the proper hospital.
47. Interview of July 7, 1972 at Bombay.
48. Ibid .
49. Interview of December 7, 1972 at New Delhi,
doctors with pcst-graduate qualifications in gynaecology a

available in Sangli. He thought that there should be no diffic
an adequate number of qualified doctors to meet the exist
One qualified gynaecologist expressed the view that only doc
graduate qualifications in gynaecology should be allowed
pregnancies under the MTPA and that the Act should opera
many doctors with such qualifications are available.50 As t
Sangli grows, more such doctors will be needed. Training f
clearly needed.
The "guide lines" provide that training courses may be
the state level or the district level or in teaching institution
of these courses should depend on the qualifications and ex
trainees. For qualified and experienced gynaecologists a two
tion course of the newer techniques of terminating pregnancies
For others, however, a detailed course of three months is
ed to include not only observations but the actual perform
trainees, with supervision and guidance, of twenty termina
training courses are expected to be organized by the Directo
Services in the various states.
In July, 1972, the Department of Health Sevices of
scheduled a week long training programme for civil surge
senior medical officers in August-September, 1972.52 The p
considered successful,53 and would be followed by training
different durations both for doctors in the government service
medical practitioners.54
No training courses, however, were reported to have b
at the district level, either in Sangli district or elsewhere in th
(e) Termination of pregnancy under the MTPA
According to the civil surgeon at Sangli. Sangli dist

reasonably well in providing facilities for induced abortions un
He claimed that its performance could be rated as high as a
state except, perhaps, Bombay city.55
As previously noted, doctors in Sangli civil hospital bega
abortion operations under the MTPA from July, 1972. During t
months thereafter, up to the end of September, they hand
in July, 6 in August, and 11 in September. Two of the patients

51. Guide lines 5.
54. Interviews of July 7, and October 5 of 1972 at Bombay and Sangl
respectively.
606 JO URNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 :4
and the rest Hindus. All were married and all gave the same reas
seeking the operation- the failure of the contraceptive dev
According to the civil surgeon, all the cases were treated successf
there were no complications.56
All over India, by the end of September, 1972, 6700 induced
tions had taken place under the MTPA. Of these, 2099 were in
rashtra, 1766 in Tamil Nadu and 845 in the Union Territory of D
great majority of those who sought the operation were married w
in most cases their reason for doing so was said to be the failure
contraceptive device used. Almost all of the patients came fro
areas, although about one third were illiterate. In 43 per cent of t
the total monthly income of the patient's family was below Rs. IC
2 per cent of the women treated had received university educ
The number of pregnancies terminated under the MTPA increased
the initial months after the Act took effect, as indicated by the f
table.
TABLE 458
Increase in legal abortions
April-May June-July August-September

1972 1972 1972
India 1100 1299* 4311
Maharashtra 670 1429
Sangli district 7 17
* The figure represents the num

territories from which inform
number.
( / ) Induced abortions : probable future increase or decrease
It was generally agreed that the number of induced abortions per-

formed would continue to increase in the future.59 But the liberalization of
the law which resulted from passage of the MTPA was only one of several

57. Interview of December 7, 1972 at New Delhi.
58. Table 4 is based on information collected from news items appearing in
(/) The Hindustan Times , June 8, 1972, (//) The Maharashtra Times ( Marathi), August 3,
1972, and from interview of December 7, 1972 at New Delhi.
reasons given for the prediction. Some government officials an

practitioners said that they thought the number of illegal abortio
eventually be cut in half as a direct result of the existence of the
One medical practitioner of Sangli, who admitted that he used to
illegal abortions in the past, said in October, 1972 that the p
months had seen some decrease in the number of induced abort
formed in his hospital. He added, however, that this may reflec
variations and should not be given undue significance.61
Both the public prosecutor and a judge of the Sangli session
expressed the belief that illegal abortion cases would practically d
from law courts now that the MTPA was in effect.62 The judge
however, that the possibility of a new type of litigation could no
out considering the provisions of the MTPA.63
Some medical practitioners expressed the concern that one
results of the MTPA would be to further dissipate a doctor
criminal sanctions against illegal abortions. They felt that registered
practitioners, who are not qualified to terminate pregnancies u
MTPA, in the ordinary course, would be more ready to fabricat
record to make it appear to be an emergency so that they could
the abortion and hide behind the exception allowed when the ope
"immediately necessary to save the life of the pregnant woman
thought doctors generally may be more willing to ignore the restrict
conditions included in the MTPA and provide abortions on "demand"
without any inhibitions.64 One of these practitioners said that the problem
was not with the doctors, but with others. He admitted that semi-trained,
but not qualified "doctors" were practising medicine in villages. But, he
said, these persons usually do not undertake risky operations or other cases
because they fear the adverse effects which a failure would have on their
practice. More dangerous, in his view, was the fact that there were
nurses and lower hôpital staff claiming "hospital experience" who are
going out into the villages to start up their own independent medical
practice. Such persons would even get a hold of chloroform to use while
performing abortion operations and other surgery.65 A government official
corroborated this. He said that some of the lower staff employees in the
government hospitals have stolen instruments used in the operation threatre
in abortion cases, and that they used such instruments in their "private
practice."66 A medical practitioner said that the same thing happened in
60. Interviews of October 5, 6, of 1972 at Sangli.

62. Interviews of June 15, 18, 21 of 1972 at Sangli.
63. Interview of June 18, 1972 at Sangli.
64. Interview of October 14, 1972 at Nasik Road; and interview of December
7, 1972 at New Delhi.
66. Interview of December 7, 1972 at New Delhi,
608 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 16 : 4
private hospitals, also.67

The MTPA itself does not contain criminal provisions. In
what it does is make exceptions to the old law as stated in the Ind
Code. But any doctor or patient taking part in an abortion wh
not fulfil the conditions laid down in the MTPA could still, pers
be prosecuted under the Penal Code. And, in some ways, it migh
reasonable to expect an increase in the use of criminal sanctions
abortions are performed illegally.
The use of criminal sanctions and the MTPA
Under the old law, there may have been some justification for non-
enforcement in hard cases.68 Many pregnant women, caught between the
strict, unsympathetic law of abortion and cruel social pressures, were forced
to go to abortionists for the secret termination of their pregnancies. All
too often the incompetent abortionists, and unsafe and unhygienic condi-
tions placed the lives of the patients in severe jeopardy. One of the aims
of the MTPA is to protect women from such risks by allowing abortions
to be performed by qualified doctors in hospitals with adequate medical
facilities under a variety of circumstances. On the other hand, however,
the MTPA makes it clear that the termination of a pregnancy for any
reason whatsoever by a person who is not a registered medical practitioner
is a crime, and by doing so, it narrows down somewhat the scope of the old
law which allowed any person to perform the operation in an emergency to
save the life of the mother.
One might expect, therefore, that abortionists violating the MTPA
would be dealt with more severely than in the past. For one thing the
problem of proof is easier : no longer would the unqualified abortionist
be able to claim, in defence, that the patient's life was in danger. Futher-
more, with a legal recourse available, public sentiment should favour the
conviction and punishment of the criminal. However, there does not
appear to be any new approach or policy in this regard laid down for
enforcement authoritiesto follow. The "guide lines" provided by the central
government for the administration of the MTPA are silent as to the actions
or steps to be taken if there are contraventions of its provisions.69
Senior police officers in Sangli said that they had not received any
instructions regarding the implementation of the MTPA.70 The officer in
charge of the police station was not even aware of the MTPA on October
10, 1972, even though it had been passed more than a year earlier and had
been in force for six months. However, no complaint regarding illegal
abortions had been made to the police during this period and there was no
occasion for him to consider the effect of the MTPA.71

69. Guide lines.
70. Interviews of October 5, 1972 at Saneli.
71. Interview pf October 5, 1972 at Sangli.
Section 7 of the MTPA does provide penalties for the

regulations issued by a state government. But there is no
laid down for the contravention of the rules made by the
ment under section 6. In Maharashtra, in spite of their aut
neither the state board nor the state health department ap
plans to take any particular action against a contravention
5 (2) which places a total prohibition on the termination of
a medical practitioner who has not obtained a certificate
board.72
That the official lack of interest in the prosecution o
tionists may reflect more than merely bureatcratic inert
indicated by some remarks of the then Health Minister, C
when he visited Sangli and addressed the medical prac
minister said at that time that he would give all possib
medical practitioner who was caught and prosecuted for cau
abortion.73 This was prior to the passage of the MTPA
regard for the law could be encouraged once by a high gove
it could be encouraged again.
At all events, from present indications, it appears d
serious efforts will be made to use criminal sanctions again
tions even when performed by unqualified persons.
Dissemination of information regarding the MTPA

Some time after the MTP Bill, 1969, was first introdu
ment, the Sangli Medical Association arranged a discussion
in which the public prosecutor and other lawyers participated.7
Apart from this early effort, there have been no atte
person or organisation to disseminate information about th
law. Medical practitioners, even gynaecologists, are not ac
the salient features of the MTPA. What they do know
mostly gained from newspaper reports since practically no
an opportunity to look at the text of the statute.75 As a r
a general impression among doctors that the MTPA had
law of abortion to such an extent that all abortions were n
by law. This, of course, is far from the case, as has been
Another misconception widely held was that the "registered
tioners" to which the MTPA refers would include any med
whose name was in the state register and who was allowed
medicine. The fact that the MTPA limits its applicability
medical practitioners listed in the state register who have one
72. Interview of July 7, 1972 at Bombay; and interview of Oc

Sangli.
73. This observation is based on information .received about the speech.
74. Interview of June 1.5, 1.972 at Sangli.
75. Interviews of October 6? 9 of 1972 at Sangli.
tions defined by clause (A) of section 2 of the Indian Medical Counc

and who have certain special training in obstetrics or gynaecology wa
generally realised. Had more general practitioners known of the lim
applicability of the MTPA, it is likely that there would have been crit
and perhaps even agitation against it.
As one government official pointed out, however, an effort to famil
rize medical students with the provisions of the MTPA was being ma
the Indian Medical Council which had issued instructions to all medical
colleges to include the subject in the forensic cource at the undergraduate
level and in the gynaecology and obstetrics courses.76 The Principal of the
Miraj-Sangli Medical College confirmed that he had received these instruc-
tions,
Government hospitals
(a) Conscientious objectors
In the United Kingdom, the Abortion Act, 1967, includes a special

provision applicable to doctors who have conscientious scruples against
abortions. Subject to certain exceptions, such doctors are exempted from
the duty to participate in the treatment authorised by the MTPA.77 Although
the MTPA is in many respects similar to the Abortion Act of 1967, it does
not include such a provision. Nor is one to be found in any other law.
Some day this may raise some interesting legal questions, but, initially at
least, it is unlikely to create any administrative problems in government
hospitals. The civil surgeon in Sangli did not think that any of his staff
would have conscientious objections to performing abortions. But if any
of his doctors or nurses did feel that way, he said, it would not create
much of a problem. He added that the government would not compel
doctors or nurses to work against their conscience.78
(b) Problem caused by rule 5
Government hospitals, however, may face another kind of adminis-

trative problem as a result of rule 5. Clause (1) of this rule provides that
every registered medical practitioner who intends to terminate pregnancies
in accordance with the provisions of the MTPA must make an application
to the board for the registration of his name and for the issuance to him of
a certificate. Clause (2) prohibits the termination of any pregnancy by a
medical practitioner unless he has been issued such a certificate. If a
medical practitioner in the service of a government hospital does not want
to perform the operation and does not apply for the certificate, which he
cannot be compelled to do, he is then prohibited from terminating preg-
nancies by reason of rule 5 (2). This difficulty, although not known to

77. S. 4 of the Abortion Act, 1967 (U.K.).
1974] ÌMPÀCf ÒF THÈ MŤPA : À CÀSË STÜDY 6Í1
exist in Sangli civil hospital (or in any government hospitals in Mah

shtra), has arisen in Delhi. Some doctors in government hospita
Delhi, although otherwise qualified to do so, were not interested in ob
ing the certificates because they were not inclined to take on the addi
responsibilities of abortion operations unless they received addit
monetary incentives. So long as such doctors did not have the certifi
no administrative action could be taken against them for the avoidan
hospital duties when they refused assignments involving terminatio
pregnancies. Some felt that there was a lacuna in the MTPA and the r
and argued that the problem could be solved if qualified doctors in go
ment hospitals were issued the certificates under rule 5 automatically.79
(c) Abortions caused under supervision
There are some rumours that in Sangli civil hospital some abortio
are being performed by junior, non-qualified persons under the super
of the civil surgeon or of honorary gynaecologists and surgeons.80 W
this would be a technical infraction of the law, it could be justified i
supervision is close and careful and if it is being done mainly fo
purpose of training junior doctors.
( d ) Methods of termination
The "guide lines" state that the vacuum aspiration method of ter
nating pregnancies has distinct advantages over the age-old D an
operation and should be preferred whenever the pregnancy has not
reached 12 weeks of gestation.81 Otherwise, the method is left entire
the discretion of the doctor in charge of each case.
Sangli civil hospital has been equipped with a vacuum aspirator,
there are some rumours that it is not always used. One medical prac
tioner reported that he had sent two of his patients to the civil hos
for termination of their pregnancies. In each case the pregnan
was within 12 weeks of gestation ; but, he said, the hospital authori
instead of using the aspirator or even a normal D and C, resorte
hysterotomies for the termination of the pregnancies. This distressed him
said, because the hysterotomy is a more troublesome and risky opera
and requires longer hospitalization.82
( e ) Conditions in government hospitals
Secrecy : Since goverment hospitals and their administration are par

the public service, and even more, perhaps, because of a past reputa
many do not believe that perfect secrecy can be maintained in govern

80. Interview of October 6, 1972 at bangu.
81. Guide lines, p. 4.
82. Interview of October 11, 1972 at Sangli,
hospitals in abortion cases in spite of the rules and regulations.83

or not this is true, it can be expected that many women, if they c
to do so, will prefer private clinics and hospitals for the termin
their pregnancies.84
General conditions : Some doctors also complained about an in
ence towards patients prevailing in government hospitals and
general laxity in their administration. For these reasons, too, th
people would continue to prefer private hospitals to government hospi
However, some other doctors felt that the vast number of patie
poor and needy and would take advantage of the medical facilitie
avialablö cheaply at government hospitals.86
The MTPA and rules : the views, attitudes and opinions of

medical practitioners
(a) Registration and certification
In 1972, there were more than half a dozen registered m

practitioners in Sangli who not only met the requirements of th
Medical Council Act, but also had the special qualifications, experie
training in gynaecology and obstetrics required by clause ( d ) of
of the MTPA* and rule 4. Although none had as yet been certified
qualified to perform abortions by reason of a proviso attached t
(2) which said that no registration was required for doctors with
graduate degree or diploma in gynaecology and obstetrics during
sixs months the rules were in effect.87 Doctors generally reje
suggestion that there might be anything immoral or unethical in
registration under rule 5 (1) for the purpose of being certified to t
pregnancies.88 Two of the doctors had already applied and one w
to receive his certificate.89 Some of the other doctors, however, had
different views and were in no hurry. One of them said that she was thinking
of applying for registration since the six-month grace period was almost
over.90 Another, a surgeon, thought that he would first see what the other
surgeons and gynaecologists did before deciding whether or not to apply.91
There was one who had put off applying for registration because she did
83. Interviews of June 3, 8 of 1972 at Sangli; interview of October 14, 1972 at

Nasik Road ; and interview of December 7, 1972 at New Delhi.
84. Interviews of June 3, 8, 14 of 1972 at Sangli, and of October 14, 1972 at
Nasik Road.
85. Interviews of June 3, 14 of 1972 at Sangli ; interview of October 14, 1972 at
Nasik Road.
87. The rules became operative on April 1, 1972 and the first six months were
over by the end of September 1972.
88. Interviews of June 3, 8, 9, 14 of 1972 at Sangli.
90. Interview of October 9, 1972 at Sangli,
not have adequate information about what formalities we

also thought that she might as well postpone registration
obtained the suction-type abortion equipment.92 Still ano
the view that he and other doctors like him were disi
registered because they disliked all the clerical work of filling
certifying opinions and completing other formalities that w
before and after the termination of a pregnancy.93 Finally
doctor who stated categorically that she would never
pregnancy and that, therefore, the question of registration
The reason she gave was a rather unusual one. A reputed a
told her that whatever she might do to others, she would also
herself. She believed in the astrologer's prediction comple
not, therefore, even think of performing an abortion for any
medical practice.94
From the attitudes of these doctors in Sangli it seems f
that, with some exceptions, the more qualified practit
particularly keen to seek registration under rule 5 (1). Most
private practices and probably consider registration unimpo
their experience has shown that even when abortions
prohibited, they could be performed without any fear of pros
(b) Abortions and professional ethics
Most medical colleges seem to place little educational e

professional ethics, except in so far as they do, presumab
students aware of the Hippocratic oath. Certainly, as the
Miraj-Sangli Medical College admitted, there was nothin
taught about professional ethics in relation to abortion
doctor pointed out that they were supposed to learn abou
ethics from a booklet prepared and distributed by the Me
India.96 According to that booklet, she said, a non-emerg
would be unethical if caused after the 28th week of pregn
MTPA allows such a termination only if the length of the
not exceed 20 weeks, there was no serious conflict between
MTPA. Most of the other doctors also said that they had
reconciling the MTPA with their professional ethics.97 The
medical college went even farther. He agreed that the ter
pregnancy resulting from rape, or the termination of a pre
grave physical injury to the pregnant woman, or even the t
pregnancy when there was a probability that the child

97. Interviews of June 3, 8, and October 7, 9 of 1972 at Sangli.
6i4 JOURNAL OF THE INĎIAN LAW INSTITUTE [Vol. 16 : 4
handicapped, would not have been considered unethical in the past, ev

though such terminations were not permitted by law. To the extent t
the MTPA legalizes such abortions, he felt, it bridges the gap between l
and ethics.98
One practitioner argued that professional ethics would generally
responsive to the needs of society. He pointed out that the very
expression "caesarean operation" should remind us that extreme metho
were once accepted and resorted to when a state needed to increase quic
its manpower for the purposes of war."
In general, the doctors took the view that although a patient mig
seek an abortion that was permissible under the MTPA, any private med
practitioner had the freedom both ethically and legally to accept or not
accept the case. Only if the abortion was necessary to save the life of t
pregnant woman would the doctor be under a moral duty to perform t
operation.100 Presumably, there is nothing to prevent a patient who i
refused a legal abortion by one doctor from going to another who
is willing to perform it. Presumably, also, government hospitals (as dist
from the individual doctors who serve in them) may have a positive duty
see that when a legal abortion is requested it is performed by so
qualified member of their staff.
At least one doctor believed that the termination of the pregnanc
resulting from the failure of a birth-control device need not be conside
unethical, because it would only be undertaken when the doctor conside
that the continuation of the pregnancy would result in a grave injury to the
mental health of the woman.101
(c) Qualification-experience-training requirements for doctors
Only a registered medical practitioner, as defined in sction 2 ( d ) of th

MTPA, who has the experience or training prescribed by rule 4
terminate pregnancies under section 3 of the MTPA. According to
senior government official, these experience-training requirements w
formulated in consultation with senior gynaecologists and other exper
She believed that they were, therefore, reasonably adequate.102
Registered medical practitioners with post-graduate degrees o
diplomas in gynaecology and obstetrics (or in surgery) who were interv
wed, however, were almost unanimous in expressing the view that the
prescribed experience- training requirements were not fully adequate.

100. Interviews oi June ó, o oí īv/z at gangli.
1.03. Interviews ot June y, 14. ana uctooer d, o, y, íu oí iy/zat Sangli; only one
doctor thought that the experience and training requirements were reasonable. (Interview
of October 7, 1972 at Sangli).
1974] IMPACT OF THE M TP A : A CASE STUDY 615
They agreed that abortion operations were often risky a

undertaken only by highly qualified doctors with adequate ex
One doctor expressed his apprehension that the success of the
be marred if doctors who are not thoroughly experienced an
competent are allowed to perform abortions.105 Rule 4 (1) {
a minimum of five years experience in the practice of gyna
obstetrics in the case of a medical practitioner who was reg
state medical register immediately before the commencement
It was generally felt that this experience requirement was no
ensure the reasonable competence of doctors to perform abo
relation to rule 4 (1) {a) it was noted that even a medical prac
post-graduate qualifications and six months experience in th
gynaecology and obstetrics might yet be without the efficien
petence needed for the operation.107 On the whole they agr
addition to the prescribed academic qualifications, docto
required to have the experience of performing some abortio
supervision and guidance of senior qualified gynaecologists o
before they were permitted to operate on their own.108
Even in respect of an emergency case contemplated by sect
MTPA {i.e., where the termination is, according to medical op
diately necessary to save the life of the pregnant woman), al
doctors expressed the view that a registered medical practitio
proper experience, training or equipment, should not be allowed t
the operation.109 The chances were that he would not be able
successfully and might not save the patient's life. At the ver
risky and dangerous and not at all in the interest of the pregnan
At least, one doctor admitted that behind this opinion was th
unskilled registered medical practitioners were allowed to han
cases in emergency situations, they would not stop at that, a
object of the qualification requirements of the MTPA would be fr
On the other hand, a senior government official express
that where there is no better alternative, a registered medica
even though he does not have the prescribed experience or tr
be allowed to try to save the life of a pregnant woman in an e
This argument is based on the assumption that such a regist
practitioner would only be allowed to act in emergency whe
104. Interviews of June 14, and October 5, 6, 10 of 1972 at Sangli.

105. Interview of October 6, 1972 at bangli.
106. Interviews of October 9, 10 ot J 972 at bangli.
109. Interviews of June 3, 11, 14, and October 5, 6, 9, 10 ot 1972 at
11.0. Interviews of Octoter 9, 10 of 1972 at bangli.
111. Interview of October 9, 1972 at bangli.
112. Interview of December 7, 1972 at New Delhi; also interview
and October 5 of 1972 at Sangli.
èíè JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 4
other better alternative. But, in fact, no such precondition is laid down

section 5 (1) of the MTPA. Also, and perhaps even more pertinent fro
practical point of view, it can be asked why, if the basis of the argumen
to take a chance of saving the patient's life, this chance is given only t
registered medical practitioner as defined in section 2 ( d ) of the MTPA
can be argued that other registered medical practitioners, and possibly e
non-registered practitioners or laymen should also be allowed that chan
under certain circumstances. It cannot be predicted that such an emergen
will not occur in an area where a registered medical practitioner as defin
in section 2 ( d ), read with the explanation to section 5, will not be available
(< d ) Conditions for legal abortions and doctor's discretion

The conditions which determine whether or not an abortion is a leg
abortion have been laid down in sections 3, 4 and 5 of the MTPA. Cons
dering the nature, vagueness, and flexibility of these conditions the doct
felt that a medical practitioner is given wide discretion to decide whether or
not to perform an abortion in any particular case. Furthermore, so lon
this discretion is exercised in "good faith", the doctor is protected
section 8 from any suit or other legal proceeding. Just how and in wh
manner this very wide discretion will be exercised in practice, according
most doctors, will depend upon the practitioner's attitude toward
abortions generally and upon his relationship with the individual patient.113
Most of the qualified doctors, as already noted,114 were performin
abortions even before the MTPA became operative and continued to do
thereafter. In general, they had not yet crystallized their opinions an
attitudes about the wide discretion given by the MTPA when interviewed
June and October of 1972. But some of them did have initial reactions.
Some stated that they considered a woman's right and freedom to have
an unwanted pregnancy terminated by a doctor to be of the utmost impor-
tance.115 However, they also said that they considered it their duty to advise
patients about the dangerous consequences of abortion, particularly of fre-
quent abortions.116 Most of them also said that when a pregnant woman, with
three or more children already, asked a doctor for an abortion, she should
be advised to have a tubectomy with the abortion to avoid the necessity for
more abortions.117 It was thought by several doctors that no woman should
have more than one, or at the most, two abortions, during her life-time. But
they did admit that there could sometimes be a practical difficulty in discover-
ing whether or not a particular patient had an earlier abortion.118 One senior
gynaecologist, however, argued that it was difficult to lay down any rigid
113. Interviews of October 6, 9, 10, 11 of 1972 at Sangli.

114. See the text statement relating to supra note 36.
116. Interviews of June 14, and October 6, 1,9, 11 of 1972 at Sangli.
117. Interviews ot October 5, /, y, U oi iy/z at bangli.
118. Interviews of October 7, 9 of 1972 , at Sangli.
1974] IMPACT OF THÈ MTPA : A ČASĚ STUDY 617
rules about insisting on a tubectomy with abortion, or about the numb
frequency of the abortions a woman should undergo.119 It is interes
that some doctors took a stricter attitude toward abortions in respec
unmarried women.120
The termination of a pregnancy under the MTPA may be performed
only with the consent of the pregnant woman, unless she is a minor or a
lunatic, in which case the written consent of her guardian is required.121
Some of the doctors were particularly emphatic in saying that in case of an
adult married wcman, the consent of her husband should not be necessary.122
There were others, however, who thought that while there was no legal
requirement to obtain such consent from the husband, it was wise to do so
in the general interests of family stability.123 One doctor (a senior govern-
ment official) noted that although the MTPA did not require the consent
of the husband or anyone else, if the pregnant woman was an adult, in
practice, a consent would be secured from any relative or other person who
accompanied the patient since this was normally done in the case of any
operation.124
A careful reading of both the clauses (a) and (6) of sub-section (4) of
section 3 of the MTPA would give the impression that the pregnancy of a
minor girl (that is a woman below 18 years of age) can be legally terminated
without her consent if her guardian's consent in writing is secured for such
termination.
This is something very inhuman and derogatory to the basic concept
of human dignity. That apart, even under the Indian Penal Code, a surgeon
is not exempted from criminal responsibility if he causes any surgical
operation on a minor above 12 years of age without the express or implied
consent of such minor but only with the consent of such minor's guardian.
There is apparently no justification to depart from this ordinary law and to
make the consent of the minor girl unnecessary in case of abortion operation.
In practice, however, this may not create any significant problem. Usually
a minor pregnant girl would come to a doctor with her parent or guardian,
and her consent could thereby be implied from her conduct. However, some
doctors felt that a minor girl just cannot have sufficient maturity to under-
stand her own interests, and that the power to give consent should remain
exclusively with her guardian.125 However, many doctors took the view that
whatever might be the legal position, the consent of the minor pregnant girl
as well as her guardian should be secured before the termination of her
pregnancy.126
119. Interviews of October 6, 1972 at Sangli.

121. S. 3 (4) of the MTPA.
122. Interviews of October 5, 9, 11 of 1972 at Sangli.
123. Interviews of June 8, 9, and October 6, 7 of 1972 at Sangli.
124. Interview of December 7, 1972 at New Delhi; also interview of October 6,
1972 at Sangli.
126. Interviews of June 9, and October 6, 7, 9, 10 of 1972 at Sangli.
6íè JOURNAL ÔF THE INĎÍAN LAW ÍNSŤÍTUŤĚ [Vol. 16 : 4
Section 8 of the MTPA gives doctors protection against any suit o

other legal proceeding in respect of any damage caused by anything don
intended to be done in good faith under the Act. Few doctors felt tha
there were any special risks involved in abortion operations that wou
make protection necessary.127 Some tried to defend the provision on
ground that it was included for the interests of the patients to prevent suc
matters from being brought to the law courts and discussed in public
while others thought that the provision might be needed for the protec
of senior doctors who supervised young doctors being trained in abor
techniques.129 Although a few expressed themselves in favour of a lim
form of additional protection,130 many doctors felt that, if such protec
was not necessary in the case of other kinds of operations, even risky
complicated ones, it was not reasonable to give a special protection to
doctor in respect of an abortion operation.131
Consequences of the MTPA : some views
(tf) Social justice

Before the MTPA came into effect, government hospitals were n
able to provide facilities for the termination of unwanted pregnancies s
non-emergency abortions were prohibited by law. For the poor, theref
who have to depend upon these hospitals for all sorts of treatment, there w
no medical abortion facilities available. Compelled by social, economic
other pressures, and often unaware of risks involved where abortions a
performed by unskilled persons in unhygienic conditions, they were for
by poverty to turn to untrained quacks. On the other hand, the relativ
well-to-do, despite the "strict" anti-abortion law, could usually arrange
have an abortion performed by a competent private medical practitio
upon payment of a heavy fee. Under these circumstances, many felt th
the MTPA, by making adequate hospital facilities available for indu
abortions, should prove to be a means to provide social justice to the poo
women in the society.132
( b ) Reduction in cost of abortions
Before abortions were legalized by the MTPA, some competen

medical practitioners performed them secretly in their private hospita
The charges in Sangli for such an operation, it was said, ranged betwe
Rs. 70 and 100.133 Sometimes they might be as high as Rs. 300.134 As
1 27. Interviews of October 9, 1972 at Sangli.

131. Interviews of June 3, 9, 11, 14, ana uctoter :>, o, /, juoi iy/z ai aangii.
132. Interviews of June 9, 18, and October 5, 7, 11 of 1972 at bangli.
133. Interview of October 9/ 1972 at aangU.
134. Interview of October 6, 1972 at bangu.
result of the legalization of abortion and the availabilit

facilities at government hospitals, some doctors felt that t
induced abortions at private hospitals would to some e
whether or not such abortions were strictly legal under the
(c) Adverse effect on moral values regarding sex relations
One senior gynaecologist expressed the view that the indisc

of the MTPA, as well as of the birth control devices, would
ing the established norms of sex relations in society.136 Many
way or another, agreed with this point of view.137 But
According to some, the changes taking place in society's a
not be attributed to statutes like the MTPA.138 It was arg
modern trend toward looser moral values would not be
intensified simply because laws like the MTPA were defeated
(i d ) Adverse efftcts on health
A note of caution was struck by a gynaecologist who s

MTPA, if used as a population control measure, might
deterioration in the health of women.140 However, others
not believe that there would be any noticeable evil conseque
MTPA, provided its implementation was moderate and that
not performed on a large scale by incompetent doctors.141
(e) Indian conditions and the validity of Sato's advice
Sato, the then Prime Minister of Japan, once advised

rely heavily on abortion as a population control measu
that a liberalization of the abortion law could have serious
for society in many respects. Considering India's very hig
her vast population, the vastness of her area and her meag
some doctors thought that India would not have to fear t
contemplated by Sato for, at least, the next two decades.14
ever, felt that we should learn from Japan's experience, sho
and should not use the MTPA as a population control measu
135. Interviews of June 14, and October 10, 11 of 1972 at Sangl

137. Interviews of June 3, 14, 15, 18, 21, and October 5, 7, 9 of
143. Interviews of June 3, 8, of 1972 at Sangli.
620 JO URN AL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 4
(/) MTPA as a welcome change

With all these apprehensions and reservations, most of the person
interviewed considered the MTPA a welcome change. It was conside
to be in keeping with changing times and values.144
ANNEXURE
Suggestions for some modifications in the MTP Rules*
The MTP Rules were made by the central government in the exe
of powers conferred by section 6 of the MTPA. Like the Act, they
been in force since April 1, 1972.
In the light of reactions and information revealed in the course
the field study in Sangli, the following modifications in the MTPA
the rules are suggested with the aim of improving their efficacy an
making them more meaningful.
1. Section 6 of the MTPA empowers the central government to
make rules to carry cut the provisions of the Act, but nowhere in the
MTPA is any penalty or punishment provided for the contravention or
non-compliance with these rules. This is a glaring omission, emphasized
by section 7 (3) which does provide a penalty for the contravention of any
regulation made by a state government.
The absence of such a penalty provision in the MTPA will make it
difficult to enforce the technical features of the rules because, as things
now stand, there are only two ways the rules may deal with violations : by
ignoring them, or by providing for prosecution under the Indian Penal
Code provisions relating to illegal abortions. The latter option is too
harsh a penalty for any but the grossest violations and, as past experience
demonstrates, would be used so rarely that it would not have much deter-
rent effect.
The rules do struggle with this problem, but the result is unsatis-
factory. With regard to rule 4, of course, there is no problem. The
definition of "registered medical practitioner" in section 2(d) of the MTPA
requires, inter alia, that the practitioner must have "such experience or
training in gynaecology and obstetrics as may be prescribed by rules...."
Rule 4 prescribes the experience or training required. If a medical
practitioner who does not possess such qualifications dees terminate a
144. Interviews of March 30, 1972 at New Delhi, and of June 9, 18, 21, and
October 6, 7, 10, 11 of 1972 at Sangli.
* The author intends to publish later a critical analysis of the MTrA jtself and
suggestions for its improvement,
1974] IMPACT OF THE M TP A : A CASE STUDY 621
pregnancy, he would not be entitled to claim the exemption f

tion that is provided under section 3 of the MTPA. He would
self to the risk of prosecution for having committed an offence
sections 312-316 of the Indian Penal Code.
In the case of a contravention of rule 5, however, the position will be

totally different. Rule 5 (1) requires every medical practitioner intending
to terminate a pregnancy to apply to the board for registration and for the
issuance of a certificate to the effect that he prossesses the prescribed quali-
fications. Rule 5(2) prohibites the termination of pregnancy by a registered
medical practitioner (even though he may possess all the prescribed
qualifications) unless he has been issued the certificate referred to in Rule 5
(1). This prohibition is unenforceable. Simply because a doctor has not
complied with rule 5 (1) or rule 5 (2) he does not thereby cease to be a
"registered medical practitioner" as defined by section 2 (d) of the MTPA.
He is still a registered medical practitioner who possesses all the qualifica-
tions required by section 2 (d) read with rule 4. Therefore, any abortion
that he performs is declared by section 3 of the MTPA to be no offence
and no prosecution under the Indian Penal Code provisions is possible.
It might be argued that a registered medical practitioner (as defined in
section 2 (d)) who terminates a pregnancy without being certified under
rale 5 would not be terminating the pregnancy "in accordance with the
provisions of this Act" as required by section 3 (1) and would not, therefore,
be entitled to claim the protection of section 3. This argument does not
seem tenable, however, for several reasons. In the first place, such an
interpretation would mean reading into the end of section 3 (1) the words,
"or in accordance with the Rules." This would lead to serious consequences
because it would mean that even a minor infraction of any rule should result
in conviction under section 312-316 of the Indian Penal Code. Furthermore,
it would seem to apply to matters covered by the rules (such as the keeping
of information confidential) which have no direct bearing on the abortion
operation itself. It is, therefore, unlikely that the courts would readily
accept this argument.
It is also possible to attempt to get out of the impasse by seeking help
from rule 9 (2). According to that provision, when a certificate issued
under rule 5 (1) is cancelled or suspended, the registered medical practitioner
to whom the certificate was issued shall be presumed to be without the
experience or training required by section 2 (d). It provides further that
the practitioner shall in consequence not be entitled to terminate a pregnancy
in accordance with section 3. From this, it could be argued that the intention
of the makers of the rules is quite clear : no medical practitioner should be
allowed to terminate any pregnancy under section 3 unless he possesses a
valid certificate under rule 5. This is fair enough considering the machinery
created by the rules for the implementation of the MTPA. However,
rule 9 (2) cannot be stretched too far. It could be equally well argued that
since the presumption provision wąs lęft gut of rule 5, it was īļot intendecļ
622 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol 16 : 4
to apply to cases where the certificate has not been issued at

more, the rules cannot do what the MTPA does not authorize. The
presumption set up by rule 9 (2) cannot be absolute if the doctor does, in
fact, have the qualifications. Therefore, the presumption, though one of
law, is not irrebuttable. The registered medical practitioner can still prove
that he possesses the needed qualifications and is, therefore, protected by the
MTPA.
One possible way to make both rule 5 and rule 9 enforceable would b
to integrate the registration and certification requirements of rule 5 with th
definition of "registered medical practitioner" in section 2 ( d ) of the MTPA
The same result might be accomplished, in an easier fashion, by includin
registration and certification among the experience and training requirement
of rule 4. In either case, a registered medical practitioner, who was no
certified would not meet the definition of section 2 ( d ) of the MTPA.
could not, therefore, claim the protection of section 3, and would lay himsel
open to prosecution under the Indian Penal Code.
How effective this solution would be in preventing abortions by other-
wise qualified, but uncertified doctors is questionable. Past experien
indicates a reluctance to prosecute even abortionists who are tota
unqualified. It would seem unlikely that there would be much pub
enthusiasm for prosecuting qualified doctors for what is no more than
technicality, even if an important one. If a fine were provided for no
compliance with the rules, as is done in the case of regulations, the resu
would probably be more satisfactory. An amendment of the MTPA to th
effect, therefore, is recommended.
2. Rules 12-19 deal with what are in reality the subject matter of
regulations to be made by the state governments under section 7 of th
MTPA. These rules were originally framed by the centre as mode
regulations which could be adopted by the states. The Government
Maharashtra, for instance, has adopted them as regulations with
substantial change.
Within union territories, the "State Governmenť', for the purpos
of regulation-making under section 7, can only mean the central governmen
Instead of framing separate regulations for each union territory, therefo
it would seem reasonable for the central government to include in the
rules certain provisions (in the nature of regulations, although not cal
as such) which would be specially and exclusively applicable in case
union territories and institutions.
However, such an arrangement would create difficulties. Here again
the rules, in the absence of any direct or indirect sanctions against violation
might prove nugatory. It could be particularly serious if the rules pertaining
to secrecy and non-disclosure of information were violated with impunity.
In spite of the apparent absurdity of doing so, the central govern
ment, like other state governments, should make separate regulati
under section 7, and thereby benefit from the penal sanctions of section 7 (3
In order to make such action unnecessary, it is recommneded that the
MTPA be amended and suitable provisions be made for the puni

of contraventions of, and non-compliance with, the rules.
3. Rule 13 requires certain opinions of the registered m
practitioners to be certified by them before an abortion operat
place. There are two forms - Foriņ G and Form H - which are pro
the purpose. They are applicable to different circumstances. Un
bly, however, Forms G and H do not reflect the provisions of t
or the rules.
From G specifies, in paragraphs (i) to (v), the grounds for ter
a pregnancy. The medical practitioner is required to check the a
paragraph. But, as Form G now reads, paragraph (i) does not con
the language of section 3 (2) (/) of the MTPA. According to that
the termination of a pregnancy is not justified to prevent just any in
the physical or mental health of the pregnant woman. The inju
hended must be grave. The word "grave", however, does not
this paragraph of Form G.
In paragraph (iv) of this form, there is a ground listed which no
does not appear in the statute, but has even been consistently d
political sponsors of the legislation. Failure of a contraceptive d
for the purpose of limiting the number of children is not a pe
reason for the termination of a pregnancy under section 3 of t
The failure of a contraceptive device may cause anguish, and such
according to explanation II of section 3 (2), may be presumed to c
a grave injury to the mental health of the pregnant woman. Un
medical practitioner forms an opinion that this would be the case
failure of a contraceptive device is not a justifiable ground for the op
It may be noted that the presumption mentioned in explanat
discretionary one ("may presume") and is not a presumption of la
presume") as is the case with regard to an allegation of rape men
explanation I.
It has often been authoritatively reiterated that the MTPA
intended to be a family planning or population control measure. T
of the legislation, however, have openly suspected the governmen
tions and have charged that the legislation would in fact be used as a
population control measure despite disavowals to the contrary. The defective
formulation of paragraph (iv) in Form G and From H may provide evidence
for the critics to point to in arguing that it betrays the real intentions of the
government.
Paragraph (v) appears to have been framed in terms of section 3 (3) of
the MTPA. Section 3 (3), however, does not provide a ground for the termi-
nation of pregnancy. It only gives directions as to the circumstances to be
taken into account while determining the existence of the grounds mention-
ed in section 3 (2) (z). This paragraph is also deficient in that it does not
emphasize the fact that it is only the risk of an injury which is grays that
will justify an abortion.
624 JOURNAL OF THE INDIA N LAW INSTITUTE [Vol. 16:4
One of the main grounds for an abortion which is men

section 3 (2) (i) of the MTPA has not been included in For
recommended that something like the following be added to th
(vi) in view of a risk to the life of the pregnant woman.
4. In Form H, the certificate of opinion referred to is aut

by section 3 (2) (b) of the MTPA and not section 3 (2) (a) as
in the Form. Otherwise, comments made about Form G ar
applicable to this Form.
5. Rule 13 (3) apparently requires the filling of a certified
by the attending doctor to certify that an emergency abortio
performed because it is immediately necessary to save the wo
However, section 5 of the MTPA which authorizes such an oper
that the provisions of section 4 dealing with the location where
nation of a pregnancy may take place, do not apply in respect of
cases under section 5. Therefore, it is not clear to which h
approved place the certified opinion is to be sent as required b
(3) of rule 13.
For the same reason, it is not clear how other details requ
rule 13 (4) can be given if the pregnancy has been termin
section 5 at a place other than a government or an approved ho
6. The provisions of rule 18 are supposed to be applicable i
of termination of any pregnancy. However, considering t
refers to various forms and considering other details, it is diff
how it applies to emergency termination of pregnancies under
the MTPA.
7. Neither rule 13 nor rule 18 defines the person or authority to
whom, and the manner in which, a certified opinion in respect of an
emergency termination of pregnancy under section 5 is to be filed. The
ambiguity should be removed by a more careful drafting of these pro-
visions.
8. Suggestions as to alterations of a relative minor nature

There are a number of other defects and omissions in the rules which
would not cause any significant impediment to the working of the MTPA
and the rules. However, if any alterations are to be made in the rules for
any reason, some attention should also be given to the correction of these
minor errors.
(a) The expression u out of the five members, not less than one shall
be a senior gynaecologist; not less than one shall be a senior anaesthetist
and not less than one shall be a senior surgeon" used in provisions of sub-
rules (5) and (6) of rule 3 is awkward. Instead, it would be preferable to
use another expression such as "out of the five; at least one shall be a
senior gynaecologist, one a senior anaesthetist and one a senior surgeon."
Jt is true that the mode of expression currently used in the provisions is
not uncommon; however, it need not for that reason alone be

continued.
(b) Explanation I of rule 3 (6) lays down a criterion for de
who would be considered a senior gynaecologist, anaesthetist
for the purpose of being nominated as members of the unio
board. No similar explanation is provided for sub-rule (5) of
though provisions for nominating senior gynaecologists, anae
surgeons as members of state boards is similar to the one in sub-r
rule 3.
(c) In Forms G and H, the words "Of the grounds specified in items
...applicable to the case" should be put in parentheses.
(< d ) Similarly, in Form L, the words "Of the grounds specified in
items (i) to (vii) below... to the case" should be put in parentheses and
the letter "(i')" before these words should be deleted.
( e ) While the word "secret" is found at the top of Forms H, I and K,
it does not appear on Form G, J and L, although the contents of these
forms are also to be treated as secret and confidential according to rules 11,
14 and 18, respectively.
(/) In Form H, instead of the words "signature of the registered
medical practitioner," the words signatures of the registered medical practi-
tioners" should be substituted as the certificate is to be signed by two
registered medical practitioners.
(g) In Form K, the words "See sub-rule (2) of rule 13" should be
substituted by the words "See sub-rule (2) of rule IS". Also the words
"Link this Form with Form I" should be substituted by the words "Link
this Form with Form L."

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IMPACT OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 : A CASE STUDY

THE MEDICAL Termination of Pregnancy Act, 1971 (hereinafter referred

generalized conclusions from inadequate generalized and unrepre

(a) Sangli district

Population 286,898 1,252,922 1,539,820

Within this district there were some 332 registered medical p

Registered medical practitioners in Sangli district

Description of registered medical practitioners Urban Rural Total

Registered medical practitioners having

Total A &B 231 101 332

According to section 2 (< d ) of

7. Jointly compiled by the Medical Representatives Associations of Kolhapur

having qualifications defined by clause (A) of section 2 of the Indian Medical

1 i" H"«Oj ^ JL .M«»-I^CJ i" Oj

<š ^ § '5 S 3 -S « a*- a

(b) Difficulties in prosecuting

One of the factors that has contributed to the rarity of lega

(c) Incidence of illegal abortions before the MTPA

The annual number of illegal abortions before April 1, 1972, 18 is

11. Interviews of June 18, and October 5, 10 of 1972 at Sangli.

incidence of such abortions in Sangli district as a whole.19 Estimates fo

(i d ) Illegal abortions : non-cognizable and victimless crimes

In the rare instances in which legal proceedings in respect of illegal

19. While talking to the medical practitioners practising in Madhavanagar,

22. Interviews of June 8, 21 of 1972 at Sangli; it is also illustrated by cases

competent magistrate.25 Prosecuting an abortion offence, therefore, would

(i e ) Police and law enforcement

There is one more aspect which invites attentio

Implementation of the MTPA: diverse reactions

The MTPA was passed on August 10, 1971. Under po

32. Interview of October 10, 1972 at Sangli.

{a) Views about the objects of the MTPA

4. Special arrangement for sterilization along with medical termination of

Directorate of Health Services, Delhi Administration, Delhi."

40. Interview of October 5, 1972 at Sangli; and interview of December 7, 1972

The situation was uncertain as far as emergency abortions

(c) Financial assistance

(d) Availability and training of personnel

In the opinion of one Sangli civil surgeon, there were half a d

46. Interview of June 3, 1972 at Sangli; however, in the interview of J

doctors with pcst-graduate qualifications in gynaecology a

(e) Termination of pregnancy under the MTPA

According to the civil surgeon at Sangli. Sangli dist

50. Interview of October 6, 1972 at Sangli.

Increase in legal abortions

April-May June-July August-September

India 1100 1299* 4311

Maharashtra 670 1429

* The figure represents the num

( / ) Induced abortions : probable future increase or decrease

It was generally agreed that the number of induced abortions per-

56. Interview of October 5, 1972 at Sangli.

reasons given for the prediction. Some government officials an

60. Interviews of October 5, 6, of 1972 at Sangli.

private hospitals, also.67

67. Interview of October 7, 1972 at Sangli.

Section 7 of the MTPA does provide penalties for the

Dissemination of information regarding the MTPA

72. Interview of July 7, 1972 at Bombay; and interview of Oc

tions defined by clause (A) of section 2 of the Indian Medical Counc

(a) Conscientious objectors

In the United Kingdom, the Abortion Act, 1967, includes a special

(b) Problem caused by rule 5