When we talk about Mandamus, we refer to a writ issued as an order or a command to perform. According to Articles 32 and 226 of the Indian Constitution, the Supreme Court and the High Court respectively have the power to issue writs against the Government. Among the different kinds of writs, the writ of Mandamus is issued by a Court to its inferior Court to compel to perform a mandate. Mandamus lies to enforce a public duty in the performance of which the petitioner has a sufficient legal interest, but he must show that he has demanded performance which has been refused.[1]

The Medical Termination of Pregnancy Act was enacted in 1971 to make abortions legal in India and hence regulate it through this legislation. This Act cam out as a result of the Shah Committee held in 1964. Since then, the Medical Termination of Pregnancy Act has been undergoing several amendments regarding the time period permitted for abortion and making safe abortion procedures accessible to women. The process of abortion in India is regulated through this Act quite effectively. If abortion is sought within 12 weeks of gestation, the opinion of only one Registered Medical Practitioner is required. However, if the abortion is sought during a period ranging from 12 to 24 weeks, the opinions of two Registered Medical Practitioners are required. It was only the 2020 Amendment Bill which took the maximum limit to 24 weeks. Prior to this it was only 20 weeks.

However, in a recent case Sangeeta Thapa v. Government of NCT of Delhi and Ors., a writ of Mandamus was prayed for before the Delhi High Court where the gestation period of the woman seeking abortion had exceeded 28 weeks. The reason cited by the 28-year-old woman was as follows:

                   “The petitioner has sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion, then as per the medical opinion, the child is not likely to survive beyond one year, and that too with continued medical assistance.”

It was argued that the woman will also undergo sever mental trauma if she was forced to give birth to this child knowing very well that she won’t be a mother for more than a year. Owing to this, the Bench made a thorough reading of various provisions of Section 3(2) of the Medical Termination of Pregnancy Act, 1971 and concluded in exceptional situations like this, abortion can be allowed even when it exceeds 24 weeks.