THE

POCSO ACT
&ADOLESCENTS’ ACCESS
TO ABORTION IN INDIA:
Heightened Vulnerabilities, Health Risks, and Impact on their Rights
 ACCESS TO SAFE
ABORTIONS UNDER
INDIAN LAW
Prior to the enactment of the Medical
Termination of Pregnancy Act, 1971
(MTP Act), the Indian Penal Code, 1860
(IPC) criminalized abortion, barring
instances where it was performed to
save the life of the pregnant woman.
The MTP Act was introduced as an
exception to the IPC provisions and
allowed abortions to be performed under
This factsheet explains the legal
certain conditions based on gestational
framework currently governing abortion
period or specific circumstances of the
services and adolescent sexuality in India,
pregnant woman. The MTP Act has
and then demonstrates the chilling effect
undergone amendments (most recently in
of this legal framework on adolescents'
2021) to expand the conditions and
access to safe and legal abortion services.
gestational period within which
abortions can be performed. However,
abortions that are outside the scope of
the limited circumstances under the MTP
Act continue to be criminalized.

The opinion of how many medical practitioners

is required for termination of pregnancy?

The number of medical practitioners that need to provide their opinion on whether the reason for
abortion meets the requirements of the MTP Act depends solely on the gestational period.

0-20 20-24 Beyond 24

Weeks Weeks Weeks
1 Registered Medical 2 Registered Medical Medical Board
Practitioner Practitioners will decide
POCSO ACT

1
 THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES
ACT (POCSO ACT) AND ADOLESCENTS'
ACCESS TO SAFE ABORTIONS
The POCSO Act was enacted in 2012 to “protect
children from offences of sexual assault, sexual
harassment and pornography” and lays down
offences of a sexual nature involving a “child”
under 18 years of age. Sex with a person below
the age of 18 years is statutory rape under the
POCSO Act.
Section 19 of the POCSO Act mandates that any
person who “has apprehension that an offence
under this Act is likely to be committed or has
knowledge that such an offence has been
committed” shall report to the special juvenile
police unit or the local police. Although
intended to ensure effective reporting of child
sexual abuse, this mandatory reporting
provision, when read conjointly with the MTP
Act, creates significant barriers for access to
safe and legal abortions by adolescents.

The key barriers are highlighted below:

1. CONFIDENTIALITY OF
PREGNANT PERSONS

revealing the identity of the adolescent seeking

In 2017, a nine-judge Constitution Bench of the
an abortion. This mandatory reporting
Supreme Court in Justice K.S. Puttaswamy v. Union
requirement must be viewed in light of the
of India recognised that the constitutionally
stigma surrounding abortions, and sexual and
guaranteed right to privacy encompasses the right
reproductive health issues in general.
to reproductive autonomy, including the statutory
right to terminate a pregnancy. Since matters Notably, adolescents from marginalized groups
pertaining to family, marriage, procreation, etc. face additional barriers to accessing sexual and
are integral to the dignity of an individual, the reproductive healthcare services (including safe
right of privacy therefore protects the right to and legal abortions) owing to intersecting caste,
decisional autonomy over such matters.(iii) class, religion and gender identities and
oppressions. Accordingly, revealing the identity
of a person who has sought an abortion is likely to
Section 5A of the MTP Act protects the
disproportionately impact pregnant adolescents
confidentiality of a pregnant woman by
from marginalized groups.
prohibiting medical practitioners from revealing
their name or particulars “except to a person The Supreme Court of India on September 29,
authorised by any law for the time being in 2022 took note of these barriers in the case of X v.
POCSO ACT

force.”(iv) However, Section 19 of the POCSO Act The Principal Secretary, Health & Family Welfare
requires abortion service providers to Department, Govt. of NCT of Delhi. The Court held
mandatorily report to legal authorities, thereby that this requirement of mandatory reporting

2
 under Section 19 of the Act was likely to leave 2. CRIMINALIZATION OF
minors with the options of either approaching a CONSENSUAL SEXUAL
RMP and facing the possibility of criminal
RELATIONSHIPS BETWEEN
proceedings under the POCSO ACT, or seeking
clandestine abortion services from an
ADOLESCENTS
unqualified doctor. In view of the same, the
Supreme Court has clarified that RMPs are not
The reporting mandate under Section 19 of the
required to disclose the identity and personal
POCSO Act combined with the legal age of consent
details of a minor in the information provided
effectively criminalizes consensual sexual
under Section 19(1) of the POCSO Act or during
relationships between adolescents.
any criminal proceedings that follow therefrom.
It is pertinent to note here that the Court has
made these observations and directions According to the National Family Health Survey-
with respect to cases involving the MTP Act 5 (2019–21), 10% and 39% of women (aged 25-
a l o n e a n d t h e m a n d a t o r y re p o r t i n g 49 years) first had sex before the ages of 15 and
provisions of the POCSO Act still remain 18 respectively.(v) A 2016 representative study of
applicable in all other cases of adolescent adolescent behaviour in Bihar found that 14.1%
sexual activity. boys and 12.1% girls (including married and
unmarried girls) (aged 15-19 years) had
premarital sex(vi) with similar findings in a study
To ensure that the benefit of Rule 3B(b) is extended in Uttar Pradesh.(vii)
to all women under 18 years of age who engage in
As per the POCSO Act and IPC, any sexual
consensual sexual activity, it is necessary to
activity involving a person below 18 years of age
harmoniously read both the POCSO Act and the
constitutes statutory rape. This is complicated
MTP Act. For the limited purposes of providing
by the mandatory reporting requirement under
medical termination of pregnancy in terms of the
the POCSO Act since abortion service providers
MTP Act, we clarify that the RMP, only on request of
are required to report sexual activity involving
the minor and the guardian of the minor, need not
an adolescent who approaches them to seek an
disclose the identity and other personal details of
abortion. Failure to report may result in six
the minor in the information provided under
months of imprisonment and/or imposition of
Section 19(1) of the POCSO Act. The RMP who has
a fine.
provided information under Section 19(1) of the
POCSO Act (in reference to a minor seeking A clear conflict thus emerges between the
medical termination of a pregnancy under the POCSO Act and the MTP Act, as any sexual
MTP Act) is also exempt from disclosing the minor’s activity involving a person under 18 years of
identity in any criminal proceedings which may age, irrespective of consent, constitutes an
follow from the RMP’s report under Section 19(1) offence under the POCSO Act, and must
of the POCSO Act. Such an interpretation would therefore, be reported. Pursuant to the
prevent any conflict between the statutory decision in Independent Thought vs. Union of
obligation of the RMP to mandatorily report the India,(viii) the law does not make an exception for
offence under the POCSO Act and the rights of sex within marriage with girls under 18 years of
privacy and reproductive autonomy of the minor age, irrespective of consent, thus rendering
under Article 21 of the Constitution. It could not consenting married adolescents vulnerable to
possibly be the legislature’s intent to deprive barriers to accessing safe and legal abortion
minors of safe abortions. services.

- X v. The Principal Secretary, Health & Family In X v. The Principal Secretary, Health & Family
Welfare Department, Govt. of NCT of Delhi Welfare Department, Govt. of NCT of Delhi, the
Supreme Court also noted how the POCSO Act,
fails to recognize factual consent in a
POCSO ACT

relationship involving minors.

3
 3. FEAR OF PROSECUTION

The mandatory reporting requirement instils a

fear of criminal action among abortion service
providers, adolescents seeking services as well
as adolescents' partners who face the threat of
criminalization. The chilling effect heightens the
vulnerability and risk of criminal prosecution that
adolescents in consensual relationships already
face because of the operation of statutory rape
law.
Adolescent girls wanting to seek abortions,
especially in cases of consensual relationships,
risk their partners being prosecuted and
punished because of which:
• Adolescents are likely to be denied, or face
difficulty in seeking safe and legal abortions;
• Abortion service providers are forced to
choose between fulfilling their legal obligation
under the POCSO Act and fulfilling their ethical
duty of confidentiality as healthcare providers.
To avoid prosecution, they often refrain from
providing abortion services.(ix)

According to guidelines issued by the Ministry of

Health & Family Welfare (the Ministry) in 2014,
medical practitioners must ensure immediate
access to abortions and emergency contraceptives
to survivors of sexual violence, and their primary
responsibilities are provision of treatment and
medical investigations. Such investigations do not
have to be preceded by police complaints or
evidence collection.(x)

This is further clarified in second edition of the

Comprehensive Abortion Care Training &
Service Delivery Guidelines issued by the
Ministry in 2018 where medical practitioners
have no obligation to file complaints or
investigate, but only to inform authorities when
providing abortion services to minors. Such
provision of services should not be affected by
any legal proceedings.(xi) However, the chilling
effect of the mandatory reporting requirement
also acts as a deterrent to complete and
effective implementation of these guidelines.
POCSO ACT

4
 JUDICIAL RECOGNITION OF
EVOLVING CAPACITIES OF MINORS
At the time of drafting the POCSO Act, the POCSO Act provisions would automatically
National Commission for the Protection of Child apply if the relationship “transcends beyond
Rights(xii) proposed that consensual penetrative platonic limits”. Further, the Madras High Court
sexual acts involving persons above 14 years of in Vijaylakshmi & Anr. V. State(xiv) noted that the
age and a person of the same age or within 3 POCSO Act does not intend to regulate cases
years of their age should not be criminalised. involving adolescents in consensual romantic
This proposal sought to grant due recognition relationships nor punish adolescent boys for
to the evolving capacities of minors to consent entering such relationships.
to sexual acts. Despite these orders, there continues to be
The evolving capacities of minors have also jurisprudential inconsistency and a consequent
been taken note of by courts when dealing with failure to protect adolescents in consensual
cases of consensual sexual relationships relationships from the adverse impact of the
involving persons below the age of 18 years. For POCSO Act. This can be illustrated by cases such
instance, in April 2019, the Madras High Court in as Peer Mohammad Ghotu Mohd. Ismail v State of
Sabari v. Inspector of Police(xiii) stated that even if a Maharashtra(xv) where the court refused to grant
girl is below 18 years and capable of giving legal recognition to the consent of a minor.
consent in a relationship due to mental
maturity, the

CRIMINALIZATION OF ADOLESCENT
SEXUALITY CREATING BARRIERS TO
ACCESS TO SRH SERVICES VIOLATES
INDIA'S INTERNATIONAL COMMITMENTS
Over the years, treaty bodies such as the abortion, and (ii) removal of third-party
Committee on Rights of Children (CRC authorisation requirements, and notes the need
Committee) and the Committee on Elimination of to bypass parental authorization requirements
Discrimination against Women have clarified that in case of adolescents “…to avoid anticipated
adolescents should have non-discriminatory violence, reproductive coercion, and family
access to the full range of sexual and reproductive disharmony.”(xx)
healthcare services and information.(xvi) The CRC There is, thus, an inherent tension between
Committee has specifically urged states to mandatory reporting procedures under the
decriminalize abortion to uphold access to safe POCSO Act that are rooted within the criminal
abortion and post-abortion services(xvii) and called law framework and internationally recognised
for confidential medical counselling and advice human rights standards of ensuring “child
without the mandatory consent of a parent or friendly reporting mechanisms” that account for
guardian.(xviii) Further, the Human Rights Council adolescents' evolving capacities and non-
has called upon states to respect, protect and fulfil discriminatory access to sexual and reproductive
women and adolescent girls' human rights to healthcare services, including safe and legal
have control over their sexual and reproductive abortions.
health by implementing laws that respect their
POCSO ACT

bodily autonomy and agency.(xix) The World Health

Organisation's 2022 Abortion Care Guideline
recommends (i) the full decriminalization of

5
 We have referred to pregnant persons as pregnant women (and where relevant, girls). We
(i)

recognize that abortion restrictions can have profoundly devastating impacts, not only on the lives of
women, but also on those of transgender men, and nonbinary individuals who have the capacity to
become pregnant. We will use gender-neutral language to describe groups who may require
abortion services during their lifetimes. At the same time, we acknowledge that globally, abortion
restrictions historically and at present are rooted in discriminatory stereotypes and control of
cisgender women and girls, targeting the intersection of their biological ability to bear children and
their gender identities as women and girls who are predestined to fulfill a role as mothers. Further, in
referring to the legal provisions under the MTP Act and especially operation of the criminal law, we
have used pregnant ‘women’ seeking abortion to reflect the current legal position.
(ii)
Section 3(2) of the MTP Act.
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. For instance, paras 72, 141.
(iii)

Section 5A of the MTP Act, through the MTP (Amendment) Act, 2021.
(iv)

Indian Institute of Population Studies, National Family Health Survey (NFHS– 5), 2019-21: India
(v)

Report, p. 210, http://rchiips.org/nfhs/NFHS-5Reports/NFHS-5_INDIA_REPORT.pdf

(vi)
https://www.popcouncil.org/uploads/pdfs/2017PGY_UDAYA-BiharFactsheet.pdf
(vii)
17 percent of older boys and six percent of unmarried older girls reported a sexual experience, and
10 percent of married older girls reported a sexual experience before marriage.
https://www.popcouncil.org/uploads/pdfs/2017PGY_UDAYA-ExecSummUP.pdf
(viii)
Independent Thought vs. Union of India (2017) 10 SCC 800
(ix)
UNFPA, Laws and Policies Impacting Young People’s Sexual and Reproductive Health and Rights in
the Asia-Pacific Region: 2020 Update, https://asiapacific.unfpa.org/sites/default/files/pub
pdf/case_studies_laws_and_policies_impacting_you ng_peoples_sexual_and_reproductive_health _a
nd_rights_in_the_asia-pacific_region_2020_update.pdf.
Ministry of Health & Family Welfare’s Guidelines & Protocols: Medico-legal Care for
(x)

Survivors/Victims of
Sexual Violence (https://main.mohfw.gov.in/sites/default/files/953522324.pdf)
(x)
https://www.guttmacher.org/report/adding-it-up-investing-in-sexual-reproductive-health-
adolescents-india
(xi)
Ministry of Health & family Welfare’s Comprehensive Abortion Care Training & Service Delivery
Guidelines(https://nhm.gov.in/New_Updates_2018/NHM_Components/RMNCHA/MH/Guidelines/
CAC_Training_and_Service_Delivery_Guideline.pdf)
(xii)
An Analysis of Mandatory Reporting under the POCSO Act and its Implications of the Rights of
Children (2018), Centre for Child and the Law, National Law School of India University, Bangalore <
https://feministlawarchives.pldindia.org/wp-content/uploads/Mandatory-Reporting-Paper-CCL-
NLSIU.pdf>
Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110
(xiii)

Vijaylakshmi & Anr. V. State & Anr. Carl. M.P. No. 109 of 2021
(xiv)

Peer Mohammad Ghotu Mohd. Ismail v. State of Maharashtra & Anr., High Court of Bombay
(xv)

(Nagpur Bench), Criminal Appeal No. 491 OF 2021 (dated 31st January 2022).
(xvi)
Committee on the Rights of the Child, General Comment No. 20 on the implementation of the
rights of the child during adolescence, paras. 59-60, U.N. Doc. CRC/C/GC/20 (Dec.2016) [hereinafter
CRC Committee, General Comment No. 20]; and Committee on the Elimination of Discrimination
Against Women, General Recommendation No. 24 on the Right to Health, para 18 (twentieth session,
1999), as cited in Center for Reproductive Rights, Briefing Paper, https://reproductiverights.org/wp-
content/uploads/2021/05/CRR_Impr oving-international-human-rights-standar ds-on-adolescents-
sexual-and-reproductive-health-and-rights_05132021.pdf.
(xvii)
CRC Committee, General Comment No. 20, para 60.
(xviii)
Id., at para 39.
(xix)
United Nations Human Rights Council Resolution on Child , early and forced marriages in the time
of crisis, including the COVID_19 pandemic, adopted on October 7th 2021 (https://documents-dds-
POCSO ACT

ny.un.org/doc/UNDOC/LTD/G21/274/59/PDF/G2127459.pdf?OpenElement)
Center for Reproductive Rights, WHO’s New Abortion Guideline: Highlights of Its Law and Policy
(xx)

Recommendations, 2022, https://reproductiverights.org/factsheet-who-abortion-guideline/.