Unborn Foetus and challenges under Article 21 of the Constitution of India

Author- Kabir Jaiswal, [National University of Study and Research in Law, Ranchi]


The Constitution of India is often known as the law of the land i.e., it is the most superior laws and every other laws of the country, have to be consistent with it. It took two years 11 months and 18 days for a 389 member committee to draft our constitution. Holding the name for being the lengthiest constitution of the world, it can be also said that India has the best constitution in the world. The sole reason behind this is that we have the biggest democracy and to satisfy the needs and requirements of the entire community is a big deal. Our Constitution has been drafted by keeping into consideration the best interest of all the communities. Moreover, it incorporates the duties of a citizen and state, the separation of power and most importantly the fundamental rights. Fundamental rights are indispensable for the people in a country. Life is unimaginable and there are certain rights which we need in order to survive, keeping this in mind our constitution provides a very exclusive space to fundamental rights. There are various types of Fundamental Rights namely, Right to Equality, Right to Freedom, Right against Exploitation, Right to life and personal Liberty, etc. This article will be particularly dealing with Right to life and personal liberty in the context of prostitutes, hawkers, slum dwellers and an unborn child.

The Indian Constitution was enacted in 1950, the drafters tried to draft it with keeping the future into account. They were wise enough and were pretty successful in doing so, but, the situation is not exactly the same as they envisaged. Situations have changed and despite the fact that we have progressed in 21st century, the life, liberty and dignity of the prostitutes, workers and slum dwellers is still at an unfavorable state. Also, there has been n number of controversies that whether the life of foetus can be covered under the ambit of Article 21 or not. The article tends to shed some light on the conditions of the group and to check the Article 21 is consistent with them or not. The article tries to show these with the help of various case laws and statutes. Also, this article solely aims at depicting the situations and not indulging in the intricacies of due process and procedure established by law. Also, the article tries to see on what grounds right to life is guaranteed and whether the same provision can be applied on an unborn. In addition to this, the article tries to portray the prevalent condition by drawing a comparative analysis with foreign laws. In the end the article tries to provide with a conclusion about what else needs to be done.

Right To Life Of An Unborn (Foetus) :

One of the most controversial issues in medical and constitutional law is that whether an unborn has a right to life or not. It needs to be also seen that whether a women can impose her right over the foetus and allow not carrying on with pregnancy just because it has no life.

“Take not away from any living thing the life that is sweet unto all even if it be to save thine”.[1]

It clearly speaks that no one is allowed to take life from a living thing that is capable of being alive, which in turn infers that a foetus has a right to life. Also, if someone takes away life of a foetus he must be punished.[2] There have been several cases where the court has noted the right to life of an unborn and decided in the favour of an unborn.

In the case of X v.Govt. of NCT of Delhi and Anr.[3], the victim went to terminate her pregnancy, the court holding the right of the foetus rejected her contention to terminate the pregnancy.

In a case, where the victim of rape went to the high court for the termination of her pregnancy, alleging and invoking her reproductive rights. The court denied her the termination of pregnancy as it recognized that the foetus has life and it will be unjust to deprive it from life.[4] Similarly in cases like that of  Harjit Kaur[5], Sabra[6], Ashaben[7], Chandrakant Jayantilal[8], v. Krishnan[9], Shewata[10], Subbi[11] where the women went for the termination of pregnancy, it was rejected on the ground that the foetus has right to life and terminating it will deprive it from right to life.

The court have followed a similar rationale in all the abovementioned judgments that a women can only terminate her pregnancy when there is grave threat or eminent danger to her body. She cannot terminate her pregnancy on her own whims and fancies. To provide a right to foetus there is also an act which has been legislated i.e. known as Medical Termination of pregnancy Act, 1971. It is to be duly noted that according to the act, no women can terminate her pregnancy once it has crossed the period of 20 weeks. The sole reason behind this is that the foetus adapts the ability to survive outside after 20 weeks, thus terminating it will be a direct deprivation of its life. Not only statutes but the sacred books have talked lengths and lengths about the right to life of foetus.

Hinduism Killing of foetus has been referred as a heinous sin and those who are depriving a foetus the right to life are considered as the sinners or “Brunaha” and the act of killing foetus is described as “Brunahatih”; references and manuscripts shows that the foetus killing was known from the time of vedic age. The Manu in his Dharma Sastra said that a killer of a cleric or slayer of an embryo casts his guilt on the willing eater of his requirements.(Chapter VIII Verse 317) Kautilya’s Arthasastra provides for the highest punishment for causing abortion by physical assault.

Islam–  According to Islam “The Holy Qur’an lays down a fundamental principle that effecting change in the scheme of God (Khalq-Allah) is a fiendish act. (Al-Qur-an, 4: 119.) Changing ‘God’s scheme and creation signifies misuse of a thing, its utilisation for a purpose other than the one for which it was intended, or to use it in a manner that its real purpose is defeated. “While Islam permits preventing pregnancy for valid reasons, it does not allow doing violence to the pregnancy once it occurs”.[12] According to him, “Muslim jurists agree unanimously that after the foetus is completely formed and has been given a soul, aborting it is haram”.

Christianity- The Catholic Church has always denounced and disparate the killing of the foetus. It has consistently defended the right of the unborn to live. The belief is that human life comes from God at the time of conception and that man is only the custodian of his life rather than the owner and the killing of the foetus represents an act that denies the sanctity of life.

In the landmark case of Olga Tellis v. Bombay Municipal Corporation[13] the Supreme Court made a remarkable assertion on the impact of Article 21 on urbanization. The dwellers were required to be moved out by the municipality. The only barrier that came in between was that the dwellers were in thousands of number, who have migrated from their villages in search of jobs,


[1] V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police, 1 Mad LW (Cri) 16 (1994).

[2]  Volume 11, Halsbury&39;s Laws of England,' Fourth Edition, paragraph 1176 at page 628 (2006).

[3] 1 RCR (Civil) 510 (2014).

[4] Indu Devi v. State of Bihar, SCC OnLine Pat 786 (2017).

[5] 65 Harjit Kaur v. State of Punjab, AIR 1999 SC 2571.

[6] Sabra v. State of Haryana and Ors., 1 RCR(Criminal)575 (2018).

[7] Ashaben v. State of Gujarat, 4 Crimes 1 (Guj.) (2015)

[8] Chandrakant Jayantilal Suthar v. State of Gujarat, 4 RCR (Cr.) 876 (2016).

[9] V. Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police, 1 LW (Crl) 16 (1994).

[10] Shewata v. State of Haryana and Ors., 183 PLR 257 (2016).

[11] Subbi v. State of Haryana and Ors., 188PLR438 (2017).

[12]  Page 201 of “Halal and Haram”

[13] AIR 1986 SC 180

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