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Randhawa, Angad --- "Foucault's Futures: A Critical Re-Reading of India's Abortion Laws" [2020] UNSWLawJlStuS 29; (2020) UNSWLJ Student Series No 20-29


FOUCAULT’S FUTURES: A CRITICAL RE-READING OF INDIA’S ABORTION LAWS

ANGAD RANDHAWA

INTRODUCTION

Critically applying Deutscher’s feminist framework ‘Foucault’s Futures’[1], this paper argues that the Medical Termination of Pregnancy Act 1971[2] undermines sexual and decisional autonomy[3] of women/girls in relation to abortion.[4] This framework is supplemented by other perspectives such as intersectionality[5] and Mackinnon’s ‘dominance approach’.[6] Problematically, the unwritten practise of forcing pregnant women to seek judicial authorisation for abortion is institutionally entrenched in India.[7] This authorisation is in addition to the MTP Act mandating the approval of medical professionals for an abortion on restrictive grounds.[8] My paper argues that this dual model of authorisation fails to affirm human dignity. Indian Judges and medical professionals are the paternalistic gate-keepers of women/girls bodies. India’s legislative framework for abortion fails to recognise abortion as a right and ‘gives’ minimal agency to women/girls in the context of reproductive rights.

This paper is divided into four parts. Part I expounds Deutscher’s ‘Foucault’s Futures’ and provides an overview of abortion laws in India as a ‘persistent, inverted exceptionality’.[9] Part II considers barriers to abortion in the context of ‘responsibilisation’.[10] Part III extends Dipika Jain’s argument that inconsistent judicial interpretation of the MTP Act devalues women/girls as ‘illegible state subjects’.[11] Part IV applies the notion of ‘ontological tact’ to make normative suggestions for reform regarding abortion laws.[12]

This paper notes that the MTP Amendments 2020 were approved by India’s Cabinet Union on 29 January 2020.[13] These amendments are not yet law. This article argues that these amendments are a progressive step towards recognising the reproductive rights of women/girls. However, the amendments – on their own – are not enough to effectuate substantive equality.[14] Two points support this proposition. First, the amendments still assume that the MTP Act operates in a social vacuum. India’s abortion laws further marginalise Dalit and Adivasi communities in rural areas due to ‘triple discrimination’ based on gender, caste, and socioeconomic status.[15] Second, implementation of the MTP Act by medical professionals reflects an essentialist understanding of women/girls as incapable of reaching a rational decision regarding abortion without external interference.[16]

I OVERVIEW

Part I traces the epistemological roots of Deutscher’s methodology and maps India’s legislative framework for abortion. This section argues that India’s regulation of abortion exists in a state of ‘inverted exceptionality’.[17]

A Epistemological Roots

Deutscher’s method turns on the notion of ‘procreative hinge’.[18] Procreation is the ‘hinge’ between sexuality and biopolitics.[19] Anti-abortion rhetoric demonstrates how women/girls are socially-constructed to be ‘moral agents’ of the State.[20] Deutscher’s key insight is that society reroutes language surrounding reproductive choice to represent women/girls as responsible decision makers for ‘human life’ (foetuses).[21]

Why must medical professionals make the final decision regarding an abortion? Women/girls are not viewed as the “right-holder” in relation to abortion.[22] Failure to acknowledge women/girls as “experts in their own lives” undermines freedom of choice.[23] Asserting paternal medical control over women’s bodies demonstrates how maternity is rendered the established societal norm. Regulation of abortion rests on the troubling assumption that women are sources of ‘maternal harm’ to potential life.[24]

The following two theories[25] are the epistemological roots of Deutscher’s feminist framework.

1 Reproductive Futurism

Lee Edelman defines ‘reproductive futurism’ as a cultural imperative whereby effective political participation is co-extensive with the ability to have children.[26] This view is linked to heteronormativity.[27] Relations that cannot be defined in reference to a future ‘imaginary child’ are viewed by the State as incalculable, anti-social, and a threat to reproductive order.[28] Edelman critiques this claim on the basis that ‘queering of relations’ is denied social legitimacy.[29]

Deutscher notes that queer theory intersects with abortion politics in terms of a shared resistance to calculability.[30] In the context of India’s abortion laws, room must be made for ‘antisocial feminine irresponsibility’.[31] Political agency should not derive from the mere biological fact of procreation. The medicalization of women’s/girls bodies[32] depends on holding women ‘hostage’ to reproductive futurism. Women/girls seeking access to abortion are considered by Indian Judges/medical professionals to be ‘unethical reproductive subjects’ deviating from the ‘correct’ normative regime of responsible decision-making.[33] This view is wrong. A structural presupposition that an ‘ideal mother’[34] would not seek an abortion undercuts women/girls’ decisional autonomy.

2 Thanatopolitics of reproduction

Deutscher creates a dialogue between Derrida’s work on the death penalty/sexual difference and Foucault’s reliance on linear histories to enrich the concept of biopower.[35] The result is the feminist theory of reproductive thanatopolitics.[36] This theory argues that women/girls are situated as ‘pseudo-sovereigns’ over ‘foetal-life’.[37] Control over foetal-life provokes State anxiety. The State morally frames abortion as a mismanagement of maternal responsibility.

Women/girls are always at risk of sovereign suspension of reproductive rights.[38] Violence is inflicted on women/girls seeking an abortion through the ‘chronic-revocability’ of reproductive rights.[39] Women/girls that desire an abortion are reduced to a state of ‘bare life’.[40] Courts and abortion clinics become gendered spaces in which women/girls are forced to present their circumstances in the worst light possible to gain access to a ‘privilege’ (abortion).[41] This process is non-therapeutic and demeaning.

B Inverted exceptionality

Academics have misinterpreted the MTP act as ‘legalising abortion’ in India.[42] The MTP Act is not ‘progressive’ legislation. Section 3(1) brings an abortion that fails to comply with restrictive grounds stipulated in the MTP Act within the purview of the Indian Penal Code 1860.[43] Section 312 of the IPC criminalises abortion unless the procedure is done in good faith to save the woman’s life.[44] The rationale of necessity underpinning s312 is problematic on three fronts.

First, access to safe abortion is reduced as criminal laws stigmatise abortion.[45] In cases such as Kamla-Devi and Jumabhai hospitals refused to perform an abortion due to “ongoing criminal investigations”.[46] Second, good faith is not defined and solely turns on the court’s discretion.[47] Third, the language of necessity overrides individual autonomy. Abortions are not provided at the woman/girl’s will.

Agamben’s ‘voluntary state of exception’ thesis is that the suspension of law characterises juridical order. Deutscher’s re-reading of Agamben results in the conclusion that there is never a ‘legal abortion that is not an exception to its own illegality’.[48] The fact that the MTP Act creates exceptions to s312 of the IPC reconfirms the ‘harshest rule’.[49] This rule is the aim of criminal laws to punish and coerce women as a potential source of harm/violence to the foetus.[50] The MTP Act reinscribes the unavailability of a truly ‘legal’ abortion.[51]

The following arguments underpin the proposition that India’s abortion laws exist in a state of ‘inverted exceptionality’.[52]

1 Family planning and population control

The objective of the MTP Act is family planning and population control.[53] Women/girls ‘right’ to abortion was not considered a legitimate legislative purpose. In 1966 the Shantilal Shah Committee Report rejected the use of abortion as a method of controlling population.[54] Two recommendations were made. First, the correct rationale for legalising abortion should be recognising reproductive-autonomy as an inalienable right. It follows that the State must promote equitable access to safe abortion facilities. Second, legalisation must be supported by State funding. Smart and Mackinnon critique legalisation – without State funding – as a ‘Hobson’s choice’ whereby ‘expensive medical abortions’ or ‘cheap and backstreet ones’ are the only options.[55] The passing of the MTP Act blatantly ignored these recommendations.

Menon notes that the MTP Act was passed in 1971 ‘quite independently of the women’s movement’.[56] The Lok Sabha Debates of 1971 deployed cultural relativist arguments regarding passage of the MTP Act.[57] Savitri Shyam MP argued that India’s cultural context situated ‘failure of contraception’ (ground-for-abortion) as justifiable only in narrow connection with population control.[58] On this view, reproductive autonomy is not an inalienable right. J.M. Gowder MP supported the Bill as ‘we have been spending crores of rupees on family planning because of our unwarranted hesitancy in legalising abortion’.[59] Two MPs – M.M. Joseph and M. Sheriff – opposed the Bill as ‘abortion is murder’.[60] This realises West’s theory that abortion laws directly discriminate against women/girls on the basis that ‘foetal-life’ is of ‘moral consequence’.[61]

2 Doctor-centric and no regard for gender-justice

The structure of the MTP Act is doctor-centric and far removed from effectuating gender justice. Section 3[62] details three circumstances where an abortion is allowed:

1. life is at risk;

2. grave injury to a woman’s physical or mental health (Explanation 1 includes the instance of rape); or

3. serious foetal abnormalities.

Section 3(2)(a)(b) stipulate that an abortion must turn on the unilateral discretion of ‘registered medical-practitioners’.[63] No room exists for individual autonomy. The restrictive gestational limit of twenty weeks is given further consideration in Part II. Three preliminary points must be considered.

i. Explanation 2 carves out unmarried women

Explanation 2 carves out unmarried women from having recourse to the failure of contraception ground.[64] Activists have sought to replace the statutory language of ‘married women’ with ‘all women’.[65] Hirve argues that failure to amend this provision stigmatises pre-marital sex and makes abortions for unmarried women unsafe.[66] Explanation 2 reflects a patriarchal understanding of women’s sexual desires as problematic and deviant.[67]

ii. Signalling effect and disability-rights

An explicit carve out provision relating to foetal abnormalities signals to Indian society that disability rights are of little societal value. The implication is that all pregnant-women must have an abortion in such circumstances. This paper does not dispute that women/girls should have the freedom to abort a foetus with abnormalities. Anita Ghai notes the erroneous assumption underlying such express statutory language is that only children without disabilities are worth having.[68]

iii. No recognition of social factors surrounding abortion

Registered medical practitioners are not necessarily well-equipped in dealing with the social factors surrounding abortion. Section 3 suggests that violence women/girls suffer in the context of abortion can be discretely divided into ‘physical’ or ‘mental’. This is not the case. Ganatra and Hirve’s empirical study on induced abortions among adolescent women in rural Maharashtra is illustrative of this point.[69] Risk of familial violence, fear of social isolation, and recurring sexual abuse by a partner or trusted family-member can influence the decision to have an abortion.[70] Even the cost of transport from a rural-area to a registered abortion-clinic can prove to be too high.[71]

II BARRIERS

This part argues that barriers to accessing abortion in India reflect the gross-inadequacy of the MTP Act in upholding reproductive rights. These barriers are critically read through Deutscher’s concept of responsibilisation.[72] Women seeking an abortion are socially constructed as irresponsible decision makers by the State.[73]

A Sex selective abortion and MTP

Medical practitioners inappropriately link the Pre-Conception & Pre-Natal Diagnostic Techniques Act 1994 and the MTP Act.[74] The consequence is that doctors refuse to provide abortions fearing prosecution by authorities that incorrectly assume a sex-selective abortion is being performed.[75] Application of the PCPNDT Act by implementing-authorities ignores gender-discrimination as the root cause of sex selective abortion.[76] Dr. Forster and Dr. Sagade aptly note that violence against women/girls starts before conception through prospective parents preselecting chromosomes to ensure a boy-child.[77]

The PCPNDT Act and MTP Act have distinct purposes. The PCPNDT Act only deals with sex-determination.[78] This Act does not speak of regulation of abortion at large. Implementing authorities of the PCPNDT conflate these discrete purposes – sex-determination and regulation of abortion at large – to acquire unfettered discretion in ‘harassing doctors’.[79] Ironically, implementation of the PCPNDT Act by-passes the aim of ‘saving the girl-child’ and encourages authorities to allege all abortions are ‘female foeticides’ without valid justification.[80] The default-rule is that doctors treat second trimester abortions with suspicion.[81] PCPNDT authorities accuse abortion providers of ‘always lying...and performing sex-selective abortions’.[82]

The modes of institutional harassment used by PCPNDT authorities are varied. PCPNDT authorities wrongfully use their authority to inspect MTP forms.[83] This breaches patient confidentiality.[84] Wrong size font, incorrect background colour, and writing ‘nil’ instead of ‘zero’ on medical forms are errors used by PNCPDT-authorities to unduly harass doctors.[85] Cases have established that such errors are not relevant-considerations. These errors fall short of the requisite standard of ‘criminal intention’. Institutional harassment and consequential refusal of second-trimester abortions creates a self-reinforcing cycle of discrimination.

B Conflict: MTP Act and POSCO Act

Conflict exists between confidentiality protections in the MTP Act and mandatory reporting requirements under the Protection of Children from Sexual Offences Act 2012.[86] This conflict creates an ‘unintended barrier’ for adolescent girls seeking an abortion.[87] Section 4 of the MTP Regulations affords confidentiality protections to women/girls seeking an abortion. In direct conflict with s4 is the POSCO Act’s deeming provision which assumes all sexual interactions under the age of 18 – even consensual sexual-interactions – are rape.[88] In Kala the court found that doctors have an ‘immediate obligation’ to report abortions for adolescents (under 18) irrespective of the confidentiality protections.[89]

Jain and Tronic note that this conflict deters adolescents from seeking an abortion in instances of consensual sex or sexual-assault inflicted by a family member.[90] This reporting requirement must be made optional.[91] The State constructs adolescent sexual experience as homogenous. All adolescent sexual interactions are problematically considered a product of supposedly ‘irresponsible conduct’ (by girls) which demands immediate intervention.[92]

C Judicial authorisation and systemic delay

Judicial authorisation of abortion is a form of ‘hard’ and ‘moral’ paternalism.[93] This realises Deutscher’s concern regarding the systematic exclusion of women/girls from economic and political power structures.[94] The barriers identified in Part A and B in addition to the strict gestational limit of 20-weeks for abortions has entrenched the practise of judicial-authorisation.[95]

Judicial authorisation of abortion creates further procedural delays for women/girls in accessing safe and timely abortions.[96] In Sarmistha-Chakraborty the petitioner was forced to wait weeks (May 25 – July 3 2017) for the court to authorise an abortion.[97] It is logically incongruous for doctors to demand women/girls seek judicial authorisation for an abortion when courts ultimately refer the matter back to medical boards for decision. This point is illustrated by cases such as Bhavikaben, Ayesha, and R v State of Haryana.[98] These cases involved court-appointed medical boards delivering differing opinions which delayed the matter beyond 24 weeks of pregnancy. At this point the court found termination of pregnancy no longer possible.

Adjudication in MTP cases is not time-sensitive.[99] Empirical research by the Pratigya Campaign for Gender Equality and Safe Abortion (PCGESA) found delay to be systemic. Between June 2016 to April 2019 the Madras High Court and Haryana Court took over 23 and 17 days respectively in deciding MTP cases.[100] The Supreme Court of India took on average 12 days.[101]

This systemic delay in MTP cases is compounded by:

1 Repeated medical scrutiny

Repeated medical scrutiny by court appointed medical boards is invasive and gender based violence.[102] In 2016 a rape survivor (14 years old) was forced to undergo three rounds of examination by a court appointed medical board.[103] This repeated examination was in addition to an initial post rape examination.[104] Ironically, the court justified such rigorous examination as providing “meaningful consideration of the mental health risks associated with continued pregnancy”.[105] Repeated examination compounds trauma faced by rape victims seeking an abortion. The court found that three rounds of examination formed ‘no conclusive opinion’ and referred the matter to yet another medical board in Delhi.[106]

2 Reconstituting medical boards without valid justification

No valid criteria exist for when courts may reconstitute medical boards in MTP cases. The MTP Act does not allow for a judicial power to create medical boards. Courts abuse their self-created discretion to form medical boards in abortion cases.[107] R’s case is illustrative of this point.[108] This case involved the reconstitution of a medical board because the petitioner seeking an abortion ‘contemplated suicide’.[109]

This response was inappropriate. No recognition was given of police corruption that forced the petitioner to sign statements that she was not raped.[110] Reconstitution of the medical board further delayed the matter. The court refused to authorise the abortion as the petitioner was ’24 weeks pregnant and past the gestational limit’.[111] No acknowledgment was given to the fact that the court process itself caused the petitioner to cross the gestational limit.[112]

D Intersectional pulse

Deutscher’s method has an ‘intersectional pulse’.[113] Intersections of discrimination exist (gender/caste/socio-economic status).[114] This part applies an intersectional lens to the direct/indirect discrimination faced by Adivasi women in accessing abortion. Specific consideration is given to the case of Amita Kujur v State of Chhattisgarh.[115]

The case of Amita emphasises the ‘power over’/ ‘power to’ distinction.[116] Amita (Adivasi girl) faced multiple-tiers of discrimination in attempting to terminate a pregnancy (result of violent-rape) at twelve-weeks. ‘Power over’ refers to the ability of doctors, Indian judges, and police-officers to override the decisional-autonomy of women/girls through coercion.[117] In the first-instance, Amita was unable to access an abortion at Jashpur District Hospital (JDH) due to a lack of trained doctors in rural-areas.[118] In the second-instance, CIMS Hospital Bilaspur refused to provide an abortion unless a First Information Report copy, medico-legal documents, and a reference letter from JDH were provided.[119] Request for such extensive documentation directly contravenes medical-protocols for victims of sexual violence.[120] The implication is drawn that gender and caste – not valid laws – drove such vexatious requests.[121]

Amita had little ‘power to’ resist these unjustified requests for extensive-documentation given the callous attitude of the local Thana (police-station).[122] Evidence submitted by Amita demonstrated that police-officers refused to respond to her request for the FIR copy/medico-legal documents for over 15 days.[123] The eventual response given was that ‘girls of your caste always pretend something wrong has happened to them’ and no further action was taken.[124] Police officers strategically created a monetary cost for obtaining these documents to prevent Amita from gaining access.[125] This response is a microcosmic illustration of how dominance and control over the behaviour of women/girls becomes an institutional norm. Amita’s petition to obtain judicial authorisation of abortion was allowed. However, this case demonstrates the intersection between gender/caste/socio-economic status in effectuating layered discrimination.

III JUDICIAL DISCOURSE

Inconsistent judicial interpretation[126] of the MTP Act results in the ‘precarious structuring’ of women/girls.[127] This structuring refers to a ‘procedural and perceptual’ divide pervading judicial reasoning.[128] Some women/girls are confirmed as ‘moral subjects’ of the State and others denigrated.[129] No clear criteria structure judicial authorisation of abortion.

A Concealed discretion reinforces gender stereotypes

Selective judicial application of the Chandrakant ‘best interests’ test reinforces the notion that women/girls are not the ‘right holder’ regarding abortion.[130] No clear definition exists of the relevant factors to be considered in formulating the ‘best interests’ of the woman/girl seeking an abortion. My argument is that the ‘best interests’ test conceals unfettered judicial discretion. The court abuses this discretion through reinforcing gender stereotypes in judicial reasoning.[131] Such stereotypes include judicial understanding of maternity as the norm. Indian Judges chastise women attempting to reclaim their autonomy by prioritising the foetus as an ‘individual in its own right’ over reproductive choice.[132] Arbitrary value judgments made by the court of the day cannot be the standard applied for ‘approving’ an abortion. Decisional autonomy of women/girls must be prioritised through eliminating judicial authorisation of abortion entirely.

Concealed judicial discretion is demonstrated through an examination of Ashaben w/o Dineshbhai v State of Gujarat & Others.[133] J.B. Pardiwala J found that ‘foetal life’ overrides any question of decisional autonomy regarding the woman/girl seeking an abortion.[134] This view point was supported by selective use of anachronistic case-law, religious texts (Atharva Veda I & Rig Veda II), and extreme anti-abortion literature.[135] His honour referred to a West German Constitutional Court decision cited as ‘39 B Verf GE (1975)’ to make two propositions.[136] First, that on the ‘fourteenth day of conception’ the human embryo became an ‘autonomous human being’ attracting the protection of Article 21 (right to life). Second, that the State acquired a duty to do whatever necessary to prevent the “destruction of unborn life”. These propositions formed the court’s primary basis for refusing an abortion post-20 weeks.

This reasoning is highly problematic for the following reasons.

1 Temporal definition of foetal-life is incoherent

Attributing ‘life’ to a foetus through the arbitrary passage of time (‘14 days’) lacks conceptual coherence.[137] Deutscher defines ‘life’ in the context of abortion as the vulnerability of a political subject to normative violence.[138] Drawing from Judith Butler, Deutscher notes that the foetus does not sufficiently constitute a political subject to face the threat of de-subjectification.[139] This view is correct and consistent with the principle in Kishore Sharma.[140] In Kishore the court found that weighing up the ‘rights’ of an unborn child against a woman/girl’s decisional autonomy is artificial and irrelevant.[141] The proper application of Article 21 is that a woman/girl’s right to bodily integrity and reproductive autonomy trump any concerns regarding the foetus.[142]

2 Assumption that pregnancy is a straight-forward decision

Underpinning the court’s reasoning in Ashaben was the erroneous assumption that pregnancy and raising a child are relatively straight forward decisions. Pardiwala J remarked a rape victim seeking an abortion must ‘bravely go ahead with the pregnancy...she should deliver the child’.[143] His honour further said “children (attributing full legal-personhood to a foetus) conceived through sexual assault deserve to have their voices heard”.[144] These remarks are highly problematic on three fronts.

First, an understanding that all women/girls have a State-conferred duty to fulfil their ‘future obligation to become mothers’ is essentialist. This view denies a universal right to self-determination. Second, pregnancy can be an invasive experience and gives rise to enduring responsibility.[145] Acceptance of such responsibility must turn on individual autonomy not State anxiety regarding misuse of reproductive-freedom.[146] Third, the relevant yardstick of the best interests’ test becomes whether the effectiveness of a woman to be a mother is impeded.[147] Decisional autonomy of the woman/girl is rendered a mere afterthought.

3 Partial decriminalisation of abortion is not an ‘appropriate fix’

A shift must be made from partial decriminalisation of abortion to a restriction-free model supported by State funding. This point is made salient by the approach of Pardiwala J in reading the MTP Act and sections 312-315 of the IPC together.[148] The court found that section 3 of the MTP Act should be understood against the context that ‘the charge of abortion...leaves a stain on the honour of families’.[149] Further, the court held that an ‘unborn child’ is a ‘gift’ that mitigates the suffering of a rape victim.[150] This reasoning is problematic on two fronts.

First, partial decriminalisation of abortion relies on the problematic assumption that the State is delegating its control over ‘life’ to women/girls.[151] Women must be seen to decide – delegation denies a latitude of choice.[152] Individual autonomy is not considered a relevant factor in determining if an abortion is ‘legal’. Second, a radical feminist reading of the court’s reasoning finds that stereotyping women as self sacrificing (ethic of care) is a product of male domination.[153]

B Judicial disregard for decisional-autonomy

Judicial imposition of spousal consent for abortions prioritises mens desires over the bodily autonomy of women/girls.[154] Such imposition is ad-hoc and unprincipled.[155] This point is illustrated by the case of Seema Malhotra at first instance.[156] The court found that section 3(4)(b) of the MTP Act was subject to an implied limitation that required ‘specific consent from the child’s father’.[157] No legitimate justification underpinned this finding. Extra-legal considerations informed the court’s approach. For example, remarks such as ‘failing to obtain the father’s consent amounts to cruelty’ and no ‘immediate need to do the abortion’ demonstrate an inappropriate reading of the MTP Act.[158] Two preliminary points demonstrate this inappropriateness. First, the aforementioned implied limitation is contrary to the natural statutory language of s3(4)(b).[159] Section 3(4)(b) only requires consent of the woman/girl seeking an abortion. Spousal consent is entirely irrelevant. Second, spousal consent for an abortion realises Mackinnon’s radical feminist concern that male perspective becomes the benchmark for measuring the lived-experience of women/girls.[160]

More substantive remarks are detailed below.

1 Conflating Hindu personal laws with the MTP Act

Drawing the implication of spousal consent for abortion relies on conflating Hindu personal laws with provisions of the MTP Act.[161] Bhandari J in Samar Ghosh held that the meaning of ‘cruelty’ under Hindu personal laws[162] includes unilateral termination of pregnancy without spousal consent. This is a ground for divorce (fault based).[163] The court in Seema incorrectly situated the operation of the MTP Act in the context of Hindu personal laws.[164] Application of the MTP Act by Indian Judges is informed by gender bias regarding women as subservient to men. Deutscher emphasises that situating autonomy in collectivist cultures results in familial notions of ‘maternal responsibility’ (not individual choice) structuring decision-making.[165] My analysis demonstrates that the ‘legibility’ of women/girls as State subjects incorrectly turns on male permission rather than a default-conception of autonomy.

2 Women are not machines designed for the sole pleasure of men

The court in Dr. Mangla Dogra & Others v Anil Kumar & Others rejected the requirement for express/implied spousal consent regarding abortion.[166] Jitendra Chauhan J held that ‘a woman is not a machine in which raw material is put and a finished product comes out’.[167] Dipika Jain praises this case as a progressive step for affirming reproductive rights.[168] However, a close reading reveals that the court still reinforces underlying patriarchal notions of maternity as the norm. Chauhan J found the husband’s act of attempting to obtain a restraining injunction ‘shameful’ because it demonstrated a failure in his ‘duty to convince his wife to continue with the pregnancy’.[169] Bodily autonomy is rendered a secondary consideration in cases such as Dogra. The primary consideration becomes whether male dominion can be asserted over a woman’s decisional autonomy. Although the court’s will not strictly enforce the requirement of spousal consent – this requirement was effectively endorsed by Chauhan J as a valid societal expectation.

Despite firm rejection of spousal consent, petitions are still regularly brought by men seeking a restraining injunction against their partner to prevent access to abortion.[170] Degrading language is used by petitioners in these cases to describe married women seeking an abortion. Such women are allegedly ‘murderers of the child (foetus)’ and ‘shirking’ from ‘spousal obligations necessary for effective co-habitation’.[171] This language reinforces West’s concern of ‘insisting loudly upon the normative significance of our (women’s) hedonic lives’.[172] Societal obsession with controlling reproductive autonomy renders women’s lives ‘counter-autonomous’ and ‘profoundly relational’.[173] Men’s pleasure (petitions seeking unconditional compliance with ‘filial duties’) is the source of women’s pain (violating reproductive autonomy through impeding access to abortion).[174] Rajalakshmi notes that medical professionals in rural areas of India (parts of Maharashtra and Tamil-Nadu) impose a de-facto requirement for spousal consent regarding abortions.[175] A gap exists between the legal operation of the MTP Act and implementation of India’s abortion laws. This gap realises Deutscher’s concern that spousal consent for abortions robs women of their bodily and decisional autonomy.[176]

IV NORMATIVE REFORM

This part makes three suggestions for normative reform. First, implementing a ‘restriction free model’ of abortion supported by State funding.[177] Second, minimising asymmetric access to abortion between rural/urban India and reducing the price of mifepristone/misoprostol.[178] Third, gender-sensitisation of judges/medical professionals.[179] The effectiveness of the MTP Amendments 2020 in improving access to abortion will be evaluated. Institutional inertia regarding execution of abortion legislative reform (see MTP Amendments 2014) can be addressed through implementing mandatory pre-legislative processes.[180] A full investigation of such stakeholder consultation processes is beyond this paper’s scope.

A Ontological tact and restriction-free model

Deutscher’s notion of ‘ontological tact’ suggests that abortion reform should include ‘flexible protocols’.[181] These protocols prevent the formation of moral narratives regarding abortion as innately harmful to women. My recommendation is that India replicates the Canadian approach in adopting a restriction free model of abortion.[182] Reproductive autonomy must lie solely in the hands of women and girls. In 1988, the Supreme Court of Canada found criminalisation of abortion to be unconstitutional as it breached an individual’s right to “life, liberty and security”.[183] The court in Morgentaler reasoned that the conscience of the individual is paramount to that of State-interest in regulating abortion.[184] Doctrinal footing for a similar approach may be found in India’s reproductive rights jurisprudence. Chandrachud J in Puttaswamy described abortion consent provisions under the MTP Act as derivative of ‘personal liberty under Article 21’.[185] His honour grounded abortion as subsumed within sexual privacy. Women and girls have an ‘inviolable right to determine how freedom (to have an abortion) shall be exercised’.[186] The court in Navtej held that sexual autonomy is integral to the ‘idea of a free individual’.[187]

The MTP Amendments 2020 are to be commended for aiming to extend the gestation limit for abortion to 24 weeks. However, the Amendments still situate abortion in a broader criminal laws framework. Indian medical professionals still retain their gate keeping responsibility over women and girls’ reproductive autonomy (contra: restriction free model). These Amendments are problematic on two fronts. First, the objectives of criminal laws – coercion and punitive sanction – are entirely incongruous with the notion that reproductive autonomy is a fundamental right. Second, a functionalist re-reading of Vishaka finds that Verma CJI acknowledges that a structural commitment to gender justice underpins the text of Article 15 and Article 51A.[188] Failing to recognise that the final decision regarding abortion should lie with women/girls – not doctors – is a practise derogatory to the dignity of women [Article 51A(e)].

State funding must supplement a restriction free model of abortion. Private medical practises in India are largely unregulated and abortion services are often excluded from State funding.[189] This exclusion cannot be justified. Mackinnon and Menon note that the right to “choose” regarding abortion must be grounded in economic and cultural constraints that limit the latitude of choice.[190] Without the necessary institutional support to realise the rights of women and girls – self-determination becomes an abstract ideal. What pragmatic motivating factor does the Indian State have to provide funding to support abortions? Equitable access to abortion services aligns with State interest in:

1. fostering community support for government health policies;

2. providing a safe environment for medical termination of pregnancy; and

3. reducing abortion-related deaths.

B Asymmetric access

The Amendments operate on the false assumption that access to abortion is symmetrical between rural and urban India. This is not the case. A lack of culturally appropriate abortion services exists in rural India.[191] This deficiency contravenes General Recommendation 24(13) made by the CEDAW Committee (India ratified CEDAW on 9 July 1993 – made reservation to Article 29). Recommendation 24(13) notes that cost of health services, distance between health facilities and absence of convenient/affordable public transport are significant barriers to access abortion.

1 Two doctors requirement

The Amendments require two doctors to approve an abortion between 20-24 weeks. This requirement is discriminatory. Abortion facilities in rural India are often severely understaffed and do not have two doctors available.[192] Women/girls in rural India may wish to hide their pregnancy from their family or husband for fear of violence, cultural, religious or other personal reasons.[193] The two doctors’ requirement is an additional barrier to access abortion for women/girls in rural India. Alternative abortions facilities often involve travelling long distances outside the relevant geographical area and is likely unaffordable for rural women (especially those on lower incomes).[194] Hirve notes that “mid-level health-providers” should be allowed to provide abortion services to improve access in rural areas.[195]

2 Access to mifepristone/misoprostol

Medical abortion pills can cost – on average – between 400 rupees (pharmacists) to 1500 rupees (practitioners) for women/girls in rural India.[196] This cost is too high and deters women/girls in rural India from seeking medical abortion pills.[197] A cross-sectional study of 1008 Indian chemists by PCGESA revealed that only 1.2% of chemists in Maharashtra and 37.7% in Uttar Pradesh stocked medical abortion pills.[198] The Drug Controller General of India “cracking down” on sex-selective abortions and the misconception that mifepristone/misoprostol “increase the number of abortions” caused this lack of supply.[199] Reluctance to supply mifepristone/misoprostol has a disproportionate impact on women/girls in rural India. More effective messaging by the Indian government is required to address this reluctance. The Amendments only allow medical abortions within the first 7 weeks of pregnancy. This limitation contradicts the WHO’s recommendation of a limit-range between 9-12 weeks.[200] Medical abortion pills must be subsidised by the Indian government to improve access in rural areas.

C Gender sensitisation

Alternatively, (assuming restriction free model proposal is rejected) gender-sensitisation of Indian Judges and medical professionals is critical. Gender-sensitisation encourages meta-cognition and by extension assists in reducing the influence of conscious/unconscious biases that reinforce gender-stereotypes in reasoning (see Part II and Part III).[201] This point is particularly pertinent as the Amendments intend to legitimise third-party authorisation of abortion. Two factors – detailed below – stress the importance of ensuring Indian judges are gender-sensitised.

1 Consent of the accused

The court in X v State of NCT of Delhi & Others – involving a rape survivor seeking an abortion – required consent of the accused to be provided.[202] In effect, the ‘best interests’ test involved weighing up the ‘survivor’s wish to terminate the pregnancy’ against the ‘accused person’s desire to become a parent’. Finding that the perpetrator of a violent crime has a “stake” in a woman’s reproductive autonomy is an extreme form of gender-based violence. Drawing from Foucault’s ‘hierarchy of space’, courts can be gendered spaces which aim to keep women/girls in a ‘constant state of subjugation’ by restricting agency.[203]

2 Cherry picking categories of women that can access abortion

Indian Judges cherry pick “categories” of women that can have recourse to abortion beyond 20 weeks. This exercise is entirely artificial and must be rejected. The court in Halore Bi incrementally extended the scope of section 3 to allow for an abortion (post-20-weeks) in circumstances of ‘forced prostitution’.[204] What about the broader position of sex workers in relation to accessing abortion? Material feminist discourses view sex work as a ‘viable employment opportunity’ and a free choice ‘even if made out of economic necessity’.[205] A necessary concomitant of this view is ensuring sex workers have equal access to abortion under the MTP Act. Similarly, the Amendments only propose to allow “vulnerable women” with access to abortion post 20 weeks. This cherry picking denies substantive equality.

V CONCLUSION

This paper critically re-read India’s abortion laws through Deutscher’s feminist perspective of ‘Foucault’s Futures’. The MTP Act and proposed Amendments fail to affirm the reproductive-autonomy of women/girls. The dual authorisation of abortion reinforces judicial understanding of maternity as the norm. Instances where the foetus is attributed with legal- personhood to override decisional autonomy of women/girls are highly problematic. The paternalistic gate-keeping function over women/girls bodies afforded to doctors and Indian Judges by abortion laws violates sexual autonomy.


[1] Penelope Deutscher, Foucault’s Futures: A Critique of Reproductive Reason (Columbia University Press, 2017) 7-15.

[2] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971).

[3] KS Puttaswamy v Union of India (2017) 10 SCC 1 at 45-49 (Chandrachud J); Navtej Singh Johar v Union of India (2018) SCC 1 at 160 (Dipak Misra CJI and A.M. Khanwilkar J); Joseph Shine v Union of India (2018) Writ Petition (Criminal) No. 194 SCI at 67 (Dipak Misra CJI and A.M. Khanwilkar J).

[4] Dipika Jain, ‘Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach’ (2019) 12 NUJS Law Review 1, 5.

[5] Kimberle Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43(6) Stanford Law Review 1241, 1250-3.

[6] Catharine Mackinnon, ‘Difference and Dominance: On Sex Discrimination’ in Katharine Bartlett and Rosanne Kennedy (eds), Feminist Legal Theory: Readings in Law and Gender (Routledge, 2018) 81, 83.

[7] Tulsi Patel, ‘Experiencing abortion rights in India through issues of autonomy and legality: A few controversies’ (2018) 13(6) Global Public Health 702, 703; Centre for Health Law, Ethics and Global Technology Jindal Law School, Abortion Laws in India: A review of Court Cases (Report, November 2016) 33-37; Centre for Reproductive Rights, Ensuring Reproductive Rights: Reform to Address Women’s and Girls’ need for abortion after 20 weeks in India (Report, 2018) 23-30.

[8] Siddhivinayak Hirve, ‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12 Reproductive Health Matters 114, 117; Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) ss 3-5.

[9] Penelope Deutscher, Foucault’s Futures: A Critique of Reproductive Reason (Columbia University Press, 2017) 112; Karen Weingarten, ‘Philosophy’s Futures: The Reproductive Body’s Turn’ (2018) 34(1) Hypatia: A Journal of Feminist Philosophy 161, 162.

[10] Sarah Hansen, ‘Review of Penelope Deutscher, Foucault’s Futures: A Critique of Reproductive Reason’ (2020) 11 Continental Philosophy Review 10.1007:1-20, 13.

[11] Jain (n 4) 4.

[12] Deutscher (n 1) 86.

[13] Smriti Irani, ‘It’s gender justice: Amendment to MTP Act will align the reproductive rights of women with 21st century medicine’, Times of India (Online Blog, January 31 2020) <https://timesofindia.indiatimes.com/blogs/toi-edit-page/its-gender-justice-amendment-to-mtp-act-will-align-the-reproductive-rights-of-women-with-21st-century-medicine/>.

[14] Catharine Mackinnon, ‘Substantive Equality: A perspective’ (2011) 96 Minnesota Law Review 1, 3-4; Catharine Mackinnon, ‘Substantive equality revisited: A reply to Sandra Fredman’ (2016) 14(3) International journal of constitutional law 739, 741; V.S. Chandrashekar, ‘Does the MTP Amendment Bill 2020 really advance Women’s Rights?’, Business World (Web Page, April 13 2020) <http://www.businessworld.in/article/Does-the-MTP-Amendment-Bill-2020-really-advance-Women-s-Rights-/07-03-2020-185470/> Vrinda Grover, ‘The Amendments in the MTP Act Bill are flawed’, Hindustan Times (Web Page, February 28 2020) < https://www.hindustantimes.com/analysis/the-amendments-in-the-mtp-act-bill-are-flawed-analysis/story-H0DZJUAWWopQZKPzbLXyJL.html >.

[15] Jain (n 4) 8; Ravi Duggal and Vimala Ramachandran, ‘The Abortion Assessment Project – India: Key Findings and Recommendations’ (2004) 12 Reproductive Health Matters 24, 122 - 129.

[16] Yamini Mishra, ‘Unsafe abortions and Women’s Health’ (2001) 36(40) Economic and Political Weekly 3814, 3815.

[17] Deutscher (n 1) 97; Penelope Deutscher, ‘The inversion of exceptionality: Foucault, Agamben, and reproductive rights’ (2008) 107(1) South Atlantic Quarterly 55, 58-65.

[18] Penelope Deutscher, ‘Foucault’s History of Sexuality, Volume 1: Re-reading its Reproduction’ (2012) 29(1) Theory, Culture and Society 119, 121.

[19] Ibid 125.

[20] Deutscher (n 1) 91.

[21] Sarah Hansen, ‘Review of Penelope Deutscher, Foucault’s Futures: A critique of reproductive reason’ (2020) 53 Continental Philosophy Review 113, 117.

[22] Melissa Stillman, Jennifer Frost, Susheela Singh, Ann Moore, and Shveta Kalyanwala, ‘Abortion in India: A literature review’ (Research Paper, Guttmacher Institute, December 2014) 37-39.

[23] Marge Berer, ‘Abortion Law and Policy Around the World: In Search for Decriminalization’ (2017) 19(1) Health and Human Rights Journal 13, 17; Christine Forster and Vedna Jivan, ‘Abortion Law in New South Wales: Shifting from Criminalization to the Recognition of Reproductive Rights of Women and Girls’ 24 Journal of Law and Medicine 850, 856.

[24] Deutscher (n 1) 77; Juniper Alcorn, Defending Abortion without Rights: A review of Penelope Deutscher, Foucault’s Futures: A critique of reproductive reason (Public Seminar, August 14 2017) 1, 2.

[25] Deutscher (n 1) 36.

[26] Lee Edelman, No Future: Queer Theory and Death Drive (Duke University Press, 2004) 53-60.

[27] Dipika Jain and Kimberly Rhoten, ‘The Heteronormative State and the Right to Health in India’ (2013) 4 NUJS Law Review 627, 631.

[28] Edelman (n 26) 65; Nina Power, ‘Non-Reproductive Futurism’ (2009) 8(2) Borderlands 1, 5; Carolyn Dever, ‘No Future: Queer Theory and the Death Drive’ (2005) 47(4) Victorian Studies 601, 602; Mark Fisher, ‘Reproductive Futurism and Politics of the Death Drive’ Frieze (Online Blog, September 2 2007) <https://frieze.com/article/reproductive-futurism-and-politics-death-drive>.

[29] Edelman (n 26) 62.

[30] Deutscher (n 1) 52.

[31] Ibid at 53.

[32] Marie Fox, ‘Reviewed Work: Regulating Reproduction: Law, Technology, and Autonomy by Emily Jackson’ (2003) 66(3) The Modern Law Review 478, 480; Emily Jackson, Regulating Reproduction: Law, Technology and Autonomy (Hart Publishing, 2001) 11-110.

[33] Deutscher (n 1) 35; Centre for Health Law, Ethics and Global Technology Jindal Law School (n 7) 7-10 and 37; Voluntary Health Association of Punjab v Union of India & Ors (2006) Writ Petition (Civil) No. 349 of 2006 SCI 1 at [21] (Dipak Misra J); Chandrakant Jayantilal Suthar v State of Gujarat (2015) Special Leave Crm. 6013/2015 SCI.

[34] Deutscher (n 1) 58.

[35] Weingarten (n 9) 163; Deutscher (n 1) 47; Penelope Deutscher, How to read Derrida (Grant Publications, 2014) 20-25.

[36] Penelope Deutscher, ‘The precarious, the Immune, and the Thanatopolitical: Butler, Esposito, and Agamben on Reproductive Biopolitics’ in Alastair Hunt and Stephanie Youngblood (eds), Against Life (Northwestern University Press, 2016) 119-141.

[37] Deutscher (n 1) 35.

[38] Ibid 37.

[39] Ibid 38.

[40] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998) 12.

[41] Neha Madhiwalla, ‘The Niketa Mehta case: does the right to abortion threaten disability rights?’ (2008) 5(4) Indian Journal of Medical Ethics 1, 2; Padma Bhate-Deosthali and Sangeeta Rege, ‘Denial of Safe Abortion to Survivors of Rape in India’ (2019) 21(2) Health and Human Rights Law Journal 189, 192; Payal Shah, ‘It’s time to end judicial authorization for abortion in India’ Center for Reproductive Rights (Web Page, 18 April 2019) < https://www.reproductiverights.org/story/time-to-end-judicial-authorization-for-abortion-in-india>.

[42] Paul Mandira, Kristina Gemzell Danielsson, Birgitta Essen and Marie Klingberg Alvin, ‘The importance of considering the evidence in the MTP 2014 Amendment debate in India – unsubstantiated arguments should not impede improved access to safe abortion’ (2015) 8 Global Health Action 103,104; Hirve (n 8) 115; Chitra Subramaniam, ‘India’s new abortion law is progressive and has a human face’ Observer Research Foundation (Web Page, March 7 2020) < https://www.orfonline.org/expert-speak/india-new-abortion-law-progressive-human-face-62023/>; Rinchen Wangchuk, ‘Once Progressive, Our 46 year old abortion law needs to move with the times’ The Better India (Web Page, December 5 2017) < https://www.thebetterindia.com/123369/46-year-old-abortion-law-needs-times/>.

[43] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) section 3(1).

[44] Indian Penal Code 1860 section 312.

[45] Jain (n 4) 7.

[46] Kamla Devi v State of Haryana & Others (2015) Writ Petition (Civil) 2007/2015 High Court of Punjab and Haryana; Aastanaben Sattarbhai Jumabhai v State of Gujarat (2016) RSCRA1084/2016 High Court of Gujarat.

[47] Murari Mohan Koley v The State and Anr. (2004) CALLT 609 HC at [18] – [24] (Pradip Kumar Biswas J); R and Anr. v State of Haryana & Ors (2016) Writ Petition (Civil) 6733/2016 High Court of Punjab and Haryana at [5]- [27] (Paramjeet Singh Dhaliwal J).

[48] Claire McKinney, ‘Foucault’s futures: A critique of reproductive reason’ (2017) 17 Contemporary Political Theory 212, 213.

[49] Penelope Deutscher, ‘The inversion of exceptionality: Foucault, Agamben, and reproductive rights’ (2008) 107(1) South Atlantic Quarterly 55, 59-60.

[50] Deutscher (n 1) 42.

[51] Ibid 44.

[52] Ibid 52.

[53] Nivedita Menon, ‘The impossibility of justice: Female Feticide and Feminist Discourse on Abortion’ (1995) 29 Contributions to India Sociology 369, 371; Geetanjali Gangoli, ‘Reproduction, Abortion and Women’s Health’ (1998) 26(12) Social Scientist 83, 87.

[54] Menon (n 53) 373.

[55] Catharine Mackinnon, Feminism unmodified (Harvard University Press, 1987) 230; Carol Smart, Feminism and the power of law (Routledge, 1989) 156.

[56] Menon (n 53) 372.

[57] Lok Sabha Debates 1971, Volume 7 (2 August 1971) 3.

[58] Ibid 4.

[59] Lok Sabha Debates (n 57) 5.

[60] Ibid 8.

[61] Robin West, ‘Taking Freedom Seriously’ (1990) 103 Harvard Law Review 43, 102; Robin West, Narrative, Authority and Law (University of Michigan Press, 1993) 427.

[62] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) section 3.

[63] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) section 3(2)(a)(b).

[64] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) Explanation 2.

[65] Manisha Gupte, Sunita Bandewar and Hemlata Pistal, ‘Abortion needs of women in India: A case study of rural Maharashtra 5(9) Reproductive Health Matters 77, 79; Radhika Vaz, ‘Mummyjiland: How the law discriminates between married and unmarried women’ The Times of India (Online Blog, 20 December 2016) < https://timesofindia.indiatimes.com/blogs/read-it-and-weep/mummyjiland-how-the-law-discriminates-between-married-and-unmarried-women/>; Pyali Chatterjee, ‘Right to abortion is a basic human right: A special reference to India’ (Conference Paper, Second International Women’s Right Assembly, March 2017) 6.

[66] Hirve (n 8) 119.

[67] Deutscher (n 1) 15.

[68] Anita Ghai and Rachana Johri, ‘Prenatal diagnosis: Where Do We Draw the Line’ (2008) 15(2) Indian Journal of Gender Studies 18, 21; Anita Ghai, ‘Disabled Women: An Excluded Agenda of Indian Feminism’ (2002) 17(3) Feminism and Disability 49, 60.

[69] Bela Ganatra and Siddhi Hirve, ‘Induced Abortions Among Adolescent Women in Rural Maharashtra’ 10(19) Reproductive Health Matters 76, 79.

[70] Ibid 81.

[71] Ibid 83.

[72] Deutscher (n 1) 13.

[73] Ibid 14-15.

[74] Pritam Ptodar, Alka Barua, Suchitra Dalvie and Anand Pawar, ‘If a woman has even one daughter, I refuse to perform the abortion’ (2015) 23(45) Reproductive Health Matters 10.106: 114-125, 115.

[75] Pratigya Campaign for Gender Equality and Safe Abortion, Assessing the Judiciary’s Role in Safe Access to Abortion (Research Paper, June 2016 – April 2019) 6.

[76] Kamlesh Madan and Martin Breuning, ‘Impact of prenatal technologies on the sex ration in India: an overview’ (2014) 16(6) Journal of Genetics in Medicine 425, 430; Jain (n 7) 27-30; Vijay Sharma v Union of India & Ors (2005) Writ Petition (Civil) 2777/2005; AIR (2008) Bomb 29 at [19] (Ranjana Desai J).

[77] Christine Forster and Jaya Sagade, Women’s Human Rights in India (Routledge, 2020) Ch. 3.

[78] Pre-Conception & Pre-Natal Diagnostic Techniques Act 1994 (Act. No. 57 of 1994) sections 4-6.

[79] Pritam (n 74) 120-5.

[80] Ibid 124.

[81] Suchitra Dalvie, ‘Second Trimester Abortions in India’ (2008) 16(31) Reproductive Health Matters 37, 40; Bianca Baldo, ‘Restricting access to Abortion Services: A conversation with Dr. Suchitra Dalvie on the effects of sex-selection in India’ Genderit.org (Online Blog, 5 October 2015) <https://www.genderit.org/articles/restricting-access-abortion-services-conversation-dr-suchitra-dalvie-effects-sex-selection>.

[82] Pritam (n 74) 123.

[83] Dr. Arvind Pal Singh v State of Punjab & Another (2012) Crm No. M-335959 M/2008 at [39] (Ritu Bahri J).

[84] Pritam (n 74) 119.

[85] Dr. Mrs. Uma Shankarrao Rachewad v Appropriate Authority (2012) Writ Petition (Criminal) 407/2011 at [4] (A.V. Nirgude J); Dr. Saraswati v State of Maharashtra (2013) Cri. Appln. No. 3350/13 & Ors at [16] – [25] (T.V. Nalawade J); Dr. Shrihari Limbaji Lahane v The State of Maharashtra (2013) Cr. Appln. No. 5016 of 2013 at [9] – [14] (Abhay M. Thipsay J); Abhilasha Garg & Anr. v The Appropriate Authority (2010) Writ Petition (Civil) No.182 of 2010 at [15] (S. Muralidhar J), Contra: Dr. Varsha Gautam W/O Dr. Rajesh v State of U.P. (2006) Allahabad High Court at [5] (Amar Saran J).

[86] Brian Tronic and Dipika Jain, ‘Conflicting abortion laws in India: Unintended barriers to safe abortion for adolescent girls’ (2019) 4(4) Indian Journal of Medical Ethics 10.20529: 310-317, 312-13.

[87] Ibid 310.

[88] Protection of Children from Sexual Offences Act 2012 (Act. No. 32 of 2012) sections 7 and 19(1).

[89] Dr. Kala v Roshan Tulsiram (2014) Writ Petition (Civil) 14058/2014 High Court of Punjab and Haryana.

[90] Tronic and Jain (n 86) 312.

[91] Department-Related Parliamentary Standing Committee on Human Resource Development, ‘Report on the Protection of Children from Sexual Offences Bill’ (Rajya Sabha Report, December 2011) at 21.

[92] Deutscher (n 1) 39.

[93] Gerald Dworkin, ‘Moral Paternalism’ (2005) 24(3) Law and Philosophy 305, 310.

[94] Deutscher (n 1) 110.

[95] Jain (n 7) 34.

[96] Pratigya (n 75) 23; Center for Reproductive Rights, ‘Ensuring Reproductive Rights: Reform to Address Women’s and Girls’ need for abortion after 20 weeks in India’ (Research Paper, 2018) 12-30.

[97] Sarmishtha Chakrabortty v Union of India Secretary (2017) Writ Petition (Civil) No.341/2017 SCI at 1 (Abhay Manohar Sapre and Sanjay Kishan Kaul JJ).

[98] Bhavikaben v State of Gujarat & Others (2016) SCR.A/1155/2016 Gujarat High Court at [19] (Sonia Gokani J); Shaikh Ayesha Khatoon v Union of India (2018) Writ Petition (Civil) 36727/2017 Bombay High Court at [9]- [16] (R.M. Borde & R.G. Ketkar JJ); R and Anr v State of Haryana Writ Petition (Civil) 6733/2016 at [37] (Paramjeet Singh Dhaliwal J).

[99] Pratigya (n 75) 24.

[100] Ibid 25-27.

[101] Ibid 27.

[102] Chanchala Kumari v Union of India & Anr. (2017) Writ Petition (Civil) No.871 of 2017 SCI at 1-2 (Dipak Misra and Amitava Roy JJ); Savita Sachin Patil v Union of India (2017) Writ Petition (Civil) No.121 of 2017 SCI at 1-3 (S.A. Bobde and L. Nageswara Rao JJ).

[103] R and Anr v State of Haryana Writ Petition (Civil) 6733/2016 at [39] (Paramjeet Singh Dhaliwal J) (‘R v Haryana).

[104] R v Haryana at [42] (Paramjeet Singh Dhaliwal J).

[105] Ibid [44] (Paramjeet Singh Dhaliwal J).

[106] R v Haryana at [60] (Paramjeet Singh Dhaliwal J).

[107] See, e.g., Ms. X v Union of India (2016) Writ Petition (Civil) 593/2016 SCI at 1 (S.A. Bobde and L. Nageswara Rao JJ); Meera Santosh Pal v Union of India (2017) Writ Petition (Civil) 17/2017 SCI at 29 (S.A. Bobde and L. Nageswara Rao JJ).

[108] Center for Reproductive Rights (n 96) 16-17.

[109] Ibid 17.

[110] Ibid 20.

[111] Ibid 18-19.

[112] Jain (n 7) 23.

[113] Deutscher (n 1) 110.

[114] Crenshaw (n 5) 1245; Anna Carastathis, ‘The concept of intersectionality in Feminist Theory’ (2014) 9(5) Philosophy Compass 304, 310.

[115] Amita Kujur v State of Chhattisgarh & Ors (2016) WP(C) 976/2016 High Court of Chhattisgarh 1 (Goutam Bhaduri J) (‘Amita’).

[116] Christine Forster and Jaya Sagade, Women’s Human Rights in India (Routledge, 2020) Ch. 3.

[117] Ibid Ch. 3.

[118] Amita at 5 (Goutam Bhaduri J).

[119] Amita at 6 (Goutam Bhaduri J).

[120] Sama Resource Group for Women and Health, From the Margins to the Centre: A study on the health inequities among tribal communities in selected districts of Chhattisgarh, Jharkhand and Odisha (Research Report, October 23 2019) 18.

[121] Sobin George, ‘Reconciliations of Caste and Medical Power in Rural Public Health Services’ 54(40) Economic and Political Weekly 1, 3; Parisa Patel, Mahua Das and Utpal Das, ‘The perceptions, health-seeking behaviors and access of Scheduled Caste women to maternal health services in Bihar, India’ (2018) 26(54) Reproductive Health Matters 54, 114-125.

[122] Amita at 3 (Goutam Bhaduri J).

[123] Amita at 4 (Goutam Bhaduri J).

[124] Sama Resource Group (n 120) 19.

[125] Ibid 20.

[126] Centre for Health Law, Ethics and Global Technology Jindal Law School, Abortion Laws in India: A review of Court Cases (Report, November 2016) 24.

[127] Deutscher (n 1) 12.

[128] Ibid 13-4.

[129] Ibid 15.

[130] Chandrakant Jayantilal Suthar v State of Gujarat (2015) Special Leave Crim. 6013/2015 [1]- [18] (Abhilasha Kumar J); V. Krishnan v Rajan Alias Madipu Rajan & Another (1993) Madras High Court at 20 (Srinivasan J) (‘Krishnan’); Suchita Srivastava & Another v Chandigarh Administration (2009) SLP(C) 5845/2009 at [1]- [32] (K.G. Balakrishnan CJI); Samar Ghosh v Jaya Ghosh (2011) Appeal (C) 151/2004 at [1]- [79] (B.N. Agrawal, P.P Naolekar and Dalveer Bhandari JJ).

[131] Bhim Singh Bisht. v State Government of NCT of Delhi (2016) Writ Petition (Civil) 2046/2016 High Court of Delhi at [1] – [11] (Badar Durrez Ahmed J).

[132] Krishnan, 17 (Srinivasan J); Vikram Raghavan, ‘Medical Termination of Pregnancy – Keynote Lecture by Upendra Baxi’, Law and Other Things (Online Blog, November 15 2016) <https://lawandotherthings.com/2016/11/medical-terminal-of-pregnancy-keynote/>.

[133] Ashaben w/o Dineshbhai v State of Gujarat & Others (2015) Special Criminal Application (Quashing) No.1919/2015 Gujarat High Court at [1]- [39] (J.B. Pardiwala J) (‘Ashaben’).

[134] Ashaben at [22] (J.B. Pardiwala J).

[135] Ibid [3] (J.B. Pardiwala J).

[136] Ibid [23] (J.B. Pardiwala J).

[137] Joanna Erdman, ‘Theorizing Time in Abortion Law and Human Rights’ (2017) 19(1) Health and Human Rights Law Journal 29, 35.

[138] Deutscher (n 1) 37.

[139] Judith Butler, ‘Precarious Life, Vulnerability, and the Ethics of Cohabitation’ (2012) 26(2) Journal of Speculative Philosophy 134, 140; Judith Butler, Precarious Life: The Power of Mourning and Violence (Verso, 2nd ed. 2006) 47.

[140] Kishore Sharma & Others v Union of India & Another AIR (2006) Raj 166; (2006) WLC Raj UC 411 at [5]- [13] (S.N. Jha J).

[141] Ibid [12] (S.N. Jha J).

[142] Janak Ramsang Hanzariya v State of Gujarat (2010) Crim. App. 702/2010 High Court of Gujarat.

[143] Ashaben at [7] (J.B. Pardiwala J).

[144] Ashaben at [37] (J.B. Pardiwala J).

[145] Joanna N. Erdman, ‘The gender injustice of abortion laws’ (2019) 27(1) Sexual and Reproductive Health Matters 4, 7.

[146] Deutscher (n 1) 110.

[147] April Cherry, ‘Shifting our Focus from Retribution to Social Justice: An Alternate Vision for the Treatment of Pregnant Women that harm their Fetuses’ (2015) 28(1) Journal of Law and Health 6, 8.

[148] Ashaben at [10]- [15] (J.B. Pardiwala J).

[149] Ibid [6] (J.B. Pardiwala J).

[150] Ibid [37]- [38] (J.B. Pardiwala J).

[151] Deutscher (n 1) 76.

[152] Ibid 77.

[153] Christine Forster and Jaya Sagade, Women’s Human Rights in India (Routledge, 2020) Ch. 3.

[154] Centre for Health Law, Ethics and Global Technology Jindal Law School, Abortion Laws in India: A review of Court Cases (Report, November 2016) 10-12.

[155] Ibid 11.

[156] Civil Revision No. 6377 of 2 v Ms. Seema Malhotra (2011) C.R. No. 6337/2011 at [8] (Jitendra Chauhan J) (‘Seema Malhotra’).

[157] Ibid [10] (Jitendra Chauhan J).

[158] Seema Malhotra at [12] (Jitendra Chauhan J).

[159] Medical Termination of Pregnancy Act 1971 (Act No. 34 of 10 August 1971) section 3(4)(b).

[160] Catharine Mackinnon, ‘Difference and Dominance: On Sex Discrimination’ in Katharine Bartlett and Rosanne Kennedy (eds), Feminist Legal Theory: Readings in Law and Gender (Routledge, 2018) 81, 84-5.

[161] Seema Malhotra at [16]- [17] (Jitendra Chauhan J).

[162] Hindu Marriage Act 1955 (Act. No. 25 of 1955) Sections 10 and 13(1).

[163] Samar Ghosh v Jaya Ghosh (2011) Appeal (C) 151/2004 at [13] (Bhandari J).

[164] Seema Malhotra at [14]- [15] (Jitendra Chauhan J).

[165] Deutscher (n 1) 112-4.

[166] Dr. Mangla Dogra & Others v Anil Kumar & Others (2011) Writ Petition (Civil) No.6337 and 6017/2011 Punjab and Haryana High Court at [1]- [31] (Jitendra Chauhan J) (‘Dogra’).

[167] Ibid [22] (Jitendra Chauhan J).

[168] Jain (n 4) 7.

[169] Dogra at [22] (Jitendra Chauhan J).

[170] Anil Kumar Malhotra v Ajay Pasricha (2018) RP(C) No.2939/2017 in C.A. No.4704/2013 SCI at 1 (Khanwilkar and Chandrachud JJ) (‘Anil’); The State of M.P. v Sheikh Sadik (2018) Criminal Appeal No.1994/1997 High Court of Madhya Pradesh at [4]- [7] (Hemant Gupta J); Vishal Goyal v State of Rajasthan (2018) S.B. Criminal Misc. Petition No.2232/2018 (Pushpendra Singh Bhati J).

[171] Anil (n 170) at 1 ((Khanwilkar and Chandrachud JJ).

[172] Robin West, ‘The Difference in Women’s Hedonic Lives: A phenomenological critique of Feminist Legal Theory’ (1987) 3 Wisconsin Women’s Law Journal 145, 147.

[173] Ibid 148.

[174] Ibid 149.

[175] Rajalakshmi Ram-Prakash, ‘Reducing Reproductive Rights: Spousal Consent for Abortion and Sterilization’ (2014) 4(3) Indian Journal of Medical Ethics 102, 103.

[176] Deutscher (n 1) 79.

[177] Christine Forster and Vedna Jivan, ‘Abortion Law in New South Wales: Shifting from Criminalization to the Recognition of the Reproductive Rights of Women and Girls’ (2017) 24 Journal of Law and Medicine 850, 851.

[178] Manisha Gupte, Sunita Bandewar, and Hemiata Pisal, ‘Abortion Needs of Women in India: A Case Study of Rural Maharashtra’ (1997) 5(9) Reproductive Health Matters 77, 80; Varkey P., Balakrishna PP., Prasad JH., Abraham S., & Joseph A., ‘The reality of unsafe abortion in a rural community in South India’ (2000) 8(16) Reproductive Health Matters 83, 87-90.

[179] Sunita Bandewar, ‘Abortion Services and Providers Perceptions: Gender Dimensions’ (2000) 38(21) Economic and Political Weekly 2075, 2078.

[180] Dipika Jain, ‘Law-Making by and for the People: A Case for Pre-Legislative Processes in India’ (2019) 10 Statute Law Review hmz005: 1-12.

[181] Deutscher (n 1) 76.

[182] Rachael Johnstone and Emmett Macfarlane, ‘Public Policy, Rights, and Abortion Access in Canada’ (2015) 51 International Journal of Canadian Studies 97.

[183] R v Morgentaler [1988] 1 SCR 30.

[184] R v Morgentaler [1988] 1 SCR 30 at 37 (Dickson CJ and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ).

[185] Justice K.S. Puttaswamy (Retd.) v Union of India and Ors. (2017) Writ Petition (Civil) No. 494 of 2012 at [128] (Chandrachud J).

[186] Ibid [130] (Chandrachud J).

[187] Navtej Singh Johar & Ors. v Union of India Thr. Secretary Ministry of Law and Justice Writ Petition No. 76 of 2014 (‘Navtej’), 62 (Dipak Misra CJI and A.M. Khanwilkar J).


[188] Vishaka v State of Rajasthan (1997) 6 SCC 241 at [1]- [5] (Verma CJI, Mrs. Sujata V. Manohar and B.N. Kirpal JJ); Rosalind Dixon, ‘Functionalism and Australian Constitutional Values’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 11.

[189] Debasis Barik and Amit Thorat, ‘Issues of Unequal Access to Public Health in India’ (2015) 3 Frontiers in Public Health 245, 247.

[190] Menon (n 53) 89.

[191] Shuchita Mundle, Batya Elul, Abhijeet Anand, Shveta Kalyanwala and Suresh Ughade, ‘Increasing access to safe abortion services in rural India: experiences with medical abortion in a primary health center’ (2007) 26(1) Contraception 66, 67.

[192] Bela Ganatra and Siddhi Hirve, ‘Induced Abortions Among Adolescent Women in Rural Maharashtra’ 10(19) Reproductive Health Matters 76, 80; Siddhivinayak Hirve, ‘Abortion Law, Policy and Services in India: A Critical Review’ (2004) 12 Reproductive Health Matters 114, 118.

[193] Kirti Iyengar and Sharad D. Iyengar, ‘Improving access to safe abortion in a rural primary care setting in India: experience of a service delivery intervention’ (2016) 13 Reproductive Health 54, 57.

[194] Ganatra (n 192) 77.

[195] Hirve (n 192) 115.

[196] Tania Boler, Cicely Marston, Nick Corby and Elizabeth Gardiner, Medical Abortion in India: A model for the rest of the World (Research Paper - Marie Stopes International, 2009) 30-32.

[197] Ibid 33.

[198] Pratigya Campaign for Gender Equality and Safe Abortion, Availability of Medical Abortion Drugs across Four Indian States (Research Paper, 2018) 2-10.

[199] Pratigya (n 198) 7.

[200] World Health Organization, ‘Clinical practice handbook for safe abortion’ (Handbook, 2014) 29.

[201] Sally Kenney, ‘Thinking about Gender and Judging’ (2008) 15(2) International Journal of the Legal Profession 87, 90-95.

[202] X v State of NCT of Delhi & Others (2013) Writ Petition (CRL) 449/2013 High Court of Delhi at [5] (S.P. Garg J).

[203] Sreyashi Ghosh, ‘Beyond Spaces: Debunking Public/Private Divide in understanding violence against Women in India’ (2017) 1(5) International Journal of Gender Studies 76, 80.

[204] Halo Bi v State of Madhya Pradesh & Ors (2013) WP(C) 7032/2012 High Court of Madhya Pradesh (Indore Bench).

[205] Christine Forster and Jaya Sagade, ‘Recognising the Human Rights of Female Sex Workers in India: Moving from Prohibition to Decriminalization and a Pro-Work Model’ (2018) 25(1) Indian Journal of Gender Studies 26, 32.


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