It is disheartening that the courts have failed women in strengthening access to comprehensive abortion care. The country needs a gender-responsive justice system
The judiciary plays a key role in interpreting laws. On a sensitive issue like abortion, where policy and legal ambiguities exist, clarity provided by the court can ensure a woman's right to bodily integrity and autonomy. This is especially so when laws, like the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act) contradict provisions for safe abortions in the Medical Termination of Pregnancy (MTP) Act. Yet, a review of all judgements interpreting the MTP Act and other laws related to abortion till 2016 show that directives passed by three important Indian courts have perpetuated stereotypes of women seeking abortion.
A recent analysis of 138 judgements passed by the Supreme Court, State High Courts and Consumer Courts reveal that they have failed to strengthen access to comprehensive abortion care. Carried out by the Centre for Health, Law, Ethics and Technology (CHLET) at the Jindal Global Law School and supported by Ipas Development Foundation, India, the review points out how the lack of clarity on key provisions in the MTP Act, like the right to consent, required for termination of pregnancy, and the failure to outline a uniform interpretation of the Act has led to confusion among practitioners and implementing agencies. Instead of improving access to abortion services, many of these judgements have pushed women towards unsafe abortions, despite it being a legal right.
So why are these judgements important? Ten women die every day in India as a result of unsafe abortion. Almost half of the estimated 30,200 abortions that take place every day are unsafe. Unsafe abortion is the third leading cause of maternal deaths in India, contributing to eight per cent of all maternal deaths, annually.
One of the ways the courts can help in making it safer for women to access abortion services is by reiterating the legal right of the woman in solely deciding whether or not she wants to end her pregnancy. According to Section 3(4)(b) of the MTP Act, consent is required only from the woman undergoing a medical termination of pregnancy and husbands, boyfriends, brothers, parents and in-laws have no right to consent to termination or to refuse to consent to an abortion. But contradictory judgements by courts on this issue and their limited understanding of the context in which women seek abortion, have confused matters.
Thus, groundbreaking judgements have been followed by others, which reflect patriarchal norms, denying a woman the right over her body. For example, the pronouncement of the High Court of Punjab and Haryana in Mangla Dogra vs Anil Malhotra case, upholding the right of the wife to give birth to a child and the husband having no right to compel his wife to give birth to a child for him, was seen a path breaking judgement.
But in the same year, the Supreme Court verdict, on consent requirements in Samar Ghosh vs Jaya Ghosh case opened the door for spousal consent. The Court held that if “the wife undergoes abortion without medical reason or without the consent or knowledge of her husband, such an act may lead to mental cruelty”. Here, the Court granted divorce on grounds of cruelty. Although it did not make spousal consent mandatory, it implied that a husband had a “right” to be involved in a woman's decisions regarding her body. This is probably why providers routinely seek spousal consent for the procedure.
What was disappointing about the Court's ruling that a unilateral decision to terminate a pregnancy amounted to cruelty, is that it furthers stereotypes about the role of women in marriage and their right to decision making about their bodies. The Court's partial understanding of why women seek abortions could deter women, particularly those in abusive relationships, from seeking abortion services. The review, which was discussed at the recently concluded Asia Pacific Conference on Reproductive and Sexual Health and Rights in Vietnam, states that this could lead to an increase in unsafe abortions as service providers may fear legal repercussions if they support a termination that can be construed as mental cruelty.
Recent judgements reviewed by CHLET also show how this directive has been used by men to make false accusations against women of terminating non-existent pregnancies to substantiate fake cruelty charges to bolster their divorce cases. The Courts have also not been able to make clear that the PCPNDT and MTP Acts are two independent laws. Every woman seeking to terminate her pregnancy is not necessarily seeking a sex selective abortion criminalised by the PCPNDT Act. But confusion among providers, women and health officials on the legality of abortions has stigmatised women from seeking safe and legal abortion services.
Besides, adding to the confusion, language used in judgements have exacerbated abortion stigma. Preconceived beliefs about pre-marital consensual sex have led some Courts to pronounce that “girls are morally and socially bound not to indulge in sexual intercourse before marriage, and if they do so, it would be to their peril”. Remarks that pre-marital sex was not only immoral but also against the tenets of every religion made by a Delhi sessions court judge presiding over a fast-track court set up to deal with cases of sexual offences against women, underlines why gender sensitisation among the judiciary needs greater investment.
(The writer is a senior journalist)