IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 37463 of 2008(S) -------------------------- PETITIONER: -------------- KRUPA PROLIFERS,(EDUCATIONAL AND CHARITABLE TRUST.REG.NO.256/IV/05, KRUPA BHAVAN, PERUNNA PO., CHANGANACHERRY, KOTTAYAM DT., KERALA-686102, REP.BY ITS MANAGING TRUSTEE, ABRAHAM PUTHENKALAM, S/O. A.MATHEW, 56 YEARS OF AGE, PUTHENKALAM HOUSE, PERUNNA PO., CHANGANACHERRY,KOTTAYAM-686102. BY ADV. SRI.MANUEL KACHIRAMATTAM SRI.K.C.THOMAS (PALA) SRI.MERRY GEORGE RESPONDENTS: ---------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE, STATE SECRETARIAT, THIRUVANANTHAPURAM. 2. CONTROLLER OF DRUGS, DEPARTMENT OF DRUGS CONTROLLER, THIRUVANANTHAPURAM. 3. UNION OF INDIA, REP. BY ITS SECRETARY MINISTRY OF FAMILY AND HEALTH, CENTRAL SECRETARIAT, NEW DELHI. 4. MANAGING DIRECTOR, CIPLA LTD., MUMBAI CENTRAL, MUMBAI-400008. R1 & R2 BY SENIOR GOVT. PLEADER, SRI.BENJAMIN PAUL R3 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL R4 BY ADV.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J & A.K.Basheer, J. -------------------------------------- W.P.(C) No.37463/2008-S -------------------------------------- Dated 24th September, 2009. JUDGMENT S.R.Bannurmath, C.J. This Writ Petition, as a public interest litigation, is filed, seeking the following reliefs: (a) Immediate action against advertisement in T.V.Channels, newspapers, magazines etc., of 'i-pill', manufactured by the 4th respondent, which is alleged to be causing termination of pregnancy (abortion). (b) To declare the use of emergency contraceptive pills without prescription,as illegal.. (c) To ban the sale and distribution of i-pill. WPC 37463/2008 -2- 2. The petitioner, a registered educational and charitable Trust, claims that its main aim and object is to protect, preserve and uphold the dignity of every human being, right from fallopian tube till natural death occurs, irrespective of consideration, such as creed, colour, language,, religion, gender, politics etc., and also prevent abortion at any stage by all means. 3. According to the petitioner, with the help of media, such as television, newspapers, weeklies, magazines etc., the Pharmaceutical Company, the 4th respondent herein, is promoting abortion among women, by advertising that the use of the tablet named “i-pill” within 72 hours of fertilization will prevent pregnancy and also giving assurance that it will be available from any Medical Store without the prescription of a medical practitioner. It is vehemently argued that the law in this regard, especially, the Medical Termination of Pregnancy Act, 1971 (hereinafter called as “M.T.P. Act”) allows/permits only registered medical practitioners to terminate the pregnancy of a woman, that too, in unavoidable circumstances, that too, in accordance with the WPC 37463/2008 -3- provisions of the Act. It is submitted that the availability of these types of tablets, without any restriction, would adversely affect the younger generation of the nation and in the long run, it would destroy the morality and the society will fall into anarchy. 4. The learned counsel for the petitioner has, in this regard, apart from the provisions of the M.T.P Act, also relied upon the advertisements and the decision of the Apex Court in the case of Dr.Jacob George v. State of Kerala [(1994)3 SCC 430]. The learned counsel has also relied upon certain medical texts, to contend that within 12 hours of a successful sexual intercourse by male and female, there must be a pregnancy and at the time of fertilization itself or union of the sperm and the egg, there is a beginning of human life and as such, in view of the claim of the 4th respondent that no pregnancy can take place within 72 hours of sexual intercourse, is a misleading statement and in effect it amounts to abortion, as the life is terminated prematurely. 5. On the other hand, the 4th respondent, who entered appearance, has filed a detailed counter, along with the permission WPC 37463/2008 -4- issued to the Company by the Drugs Controller General, Directorate General of Health Services and the recommendations submitted by the Consortium on National Consensus for Emergency Contraception, contending that the tablet i-pill does not cause any abortion and it is only a contraceptive pill, to prevent the pregnancy itself. 6. We have heard both the counsels at length and perused the documents produced. At the outset, it has to be noted that the conflict between the moralists and the medical science is going on, as to when life begins in the womb, when is an embryo said to have been formed and the conflict regarding the moral aspect of abortion. In our view, we are not required to go into the morality aspect, but only consider the medical consequences of the i-pill drug, that is to say, whether it is a contraceptive tablet or it is a medicine for causing abortion. 7. Though the M.T.P Act is enacted to prevent illegal abortions and even though termination of pregnancy or abortion is made a crime under the Indian Penal Code, the word “pregnancy” WPC 37463/2008 -5- is not defined nor there is any definition of abortion, that is to say, when exactly pregnancy takes place and at what stage of beginning of life abortion takes place or said to have been induced. 8. As such, we have to depend upon the medical science. It is to be noted that undisputedly, according to the medical science, the beginning of pregnancy is at the stage when there is implantation of a fertilized egg into the lining of woman's uterus and this implantation takes 5 to 7 days after fertilization and is completed several days later. There is also no dispute that after sexual intercourse, millions of spermatozoa or sperms are released in the reproductive canal of the woman and if there is a mature ovum whose life span is 12 to 36 hours, the sperms try to unite with the said ovum. It is only one sperm out of millions may succeed and in that case, both ovum and sperm unite and become one and then start dividing and is called as Zygote. Thereafter, when this Zygote gets attached to the lining of the ovary, it starts taking shape as embryo. Till the Zygote attaches itself to the ovary and starts taking shape, it is called as pre-embryonic stage. It is WPC 37463/2008 -6- also to be noted that there is considerable confusion even among experienced health care people about abortion and the contraceptive measures. There is no dispute that abortion is caused when pregnancy is terminated. On the other hand, contraceptive measures are to prevent the pregnancy itself. There are a number of contraceptive measures, like use of condom, I.U.T method or contraceptive pills, both for male and female. By use of these contraceptive measures, the sperms released by male in the re- production system of female are prevented from uniting with the ovum released by female. As already noted, unless there is fertilization and the united cell (pre-embryo) completes implantation into the lining of the uterus, it cannot be said, as per the medical science, pregnancy has taken place. Hence we find there is vast difference between contraceptive measures on one hand and abortion on the other. By contraceptive measures, fertilization itself is prevented whereas, by causing abortion the pre-embryo or embryo attached to the lining of the uterus is medically or mechanically tried to be dislodged and removed from WPC 37463/2008 -7- the female body. 9. On perusal of the literature about the i-pill, the certificate in this regard issued by the medical authority, it is clear that it is only intended to avoid pregnancy after unprotected intercourse and is not effective, if the female taking the same is already pregnant. 10. As per the report of the Consortium on National Consensus for Emergency Contraception in collaboration with World Health Organization, Ministry of Health and Family Welfare and Indian Council of Medical Research, most of the women in India, following an accidental undesired sexual exposure and not wanting to conceive, do not even know that unwanted pregnancy can still be avoided; they just wait with anxiety, for the period to come and by the time they come to know that they are pregnant, it is too late. However, to avoid unwanted pregnancy, they resort to abortion, either with the help of Quacks or old women, who are known to be experts in causing abortion, or in some cases, abortion induced by medicines. It is also known that WPC 37463/2008 -8- in this unscientific use of abortion, many women lost their lives and that is why the Medical Termination of Pregnancy Act, 1971 was enacted to prevent illegal prevention of pregnancy. It is also not much in dispute that for want of sufficient knowledge or awareness on the part of Indians, the population is increasing at enormous and alarming rate and because of the vast growth of population, the State Governments are not able to provide the basic requirements to all these people. 11. As such, in our view and as reported by the Consortium on National Consensus for Emergency Contraception, it is necessary to provide information to all the people as to the availability of contraceptive measures. In fact, the Government itself has come forward with Family Planning Schemes, by freely providing contraceptives, like Nirodh and also contraceptive pills at cheaper rate. 12. Keeping in view these objects and as we find that the tablet i-pill manufactured by the 4th respondent is only a contraceptive pill and does not cause abortion, the apprehension of WPC 37463/2008 -9- the petitioner is misconceived. Though the individual morality concept based on religious faith may prohibit even the contraceptive measures, the courts cannot go into it. In the light of what we have observed above, since i-pill is only a contraceptive pill meant for preventing fertilization and not meant for causing abortion, we find no merit in the writ petitioner's case. For the reasons stated above, the Writ Petition is dismissed, as devoid of any merits. S.R.Bannurmath, Chief Justice. A.K.Basheer, Judge. nm/