The article put forth the provisions of Medical Termination of Pregnancy Act and the right of women over her own body.

ABSTRACT OF THE RESEARCH UNDERTAKEN

Abortion has always been considered a taboo in the Indian camaraderie. The pro-life and pro-choice positions, which are highly debated in various countries, have not really manifested themselves in the Indian discourse on abortion as a result of complex reality of our country. Limited and regressive discourse on abortion as a result of considering it as something being against God’s will make the situation even worse for those who never wanted pregnancy in the first place. Hence, there is a dire need to engender a progressive and informed discourse on abortion in India. It is ironical to note here that not much attention by the media is given to the legislations concerning women, which are faulty or have loopholes in it.

This paper, with the help of different legislations, precedents and scholarly articles aims at discussing some of the very relevant issues regarding abortion which have been subjected to extensive debate all over the world. It has been divided into four sub-parts. Should a woman be given an absolute right to make decisions regarding her own body or not? Should law and media interfere in matters which are as personal as termination of pregnancy? Is such interference justified? If yes, then what should be the extent of such intervention? These are exactly the questions which have been addressed in the first part of the paper. The second part critically analyzes the provisions of Medical Termination of Pregnancy Act, 1971 in the light of the fact that the Act allows abortion as a population control measure rather than as a right and subjects the provisions of the Act to the test of fundamental rights guaranteed under Articles 19 (right to freedom) and 21 (right to protection of life and personal liberty) of the Indian Constitution and other basic human rights. This part also talks about the time bar for abortion set by the MTPA and discusses its constitutional validity. The third part then goes on to discuss the amendments to the Medical Termination of Pregnancy Act, 1971 and subjects them to strict scrutiny in the light of recent development of abortion laws all over the world. The authors, after thoroughly analyzing and comparing abortion laws of various countries (with emphasis on the USA), have proposed certain changes to the draft MTP amendment bill which has also been discussed in the third part. Lastly, the fourth part provides a conclusion and summarizes the whole discussion on abortion.

Medical Termination of Pregnancy Act

Margaret Sanger, an early 19^th century birth control activist once furiously said that:

“No woman can call herself free who does not control her own body.”[2]

The result of this was that she was prosecuted under Comstock Act, 1914[3] for her book on Family Limitation. The scenario at that point of time was catastrophic as to the rights of a woman to abort. The world has moved ahead but how far India and the people of India have come with their opinion and standpoint on abortion is the question that is always left in ambiguity and is still questionable. Discussing the status of woman in India, it is necessary to quote the father of the nation and what he said at the time of the India’s struggle for freedom. Mahatma Gandhi was of the view that no national movement for independence could succeed if so long and so great a portion of the population was being held back. Critical about the position of women in India he wrote:

“Today, the sole occupation of a woman amongst us is supposed to be to bear children, to look after her husband and otherwise to drudge for the household. This is a shame. Not only was the woman condemned to domestic slavery, but when she went out as a laborer to earn wages, she was paid less, though she worked harder than men.”[4]

He not only tried involving women in the freedom movement by helping them come out of their comfort zone but also condemned the legal disabilities which hobbled woman.[5] It is really sad that even after multitudinous efforts taken by government and so many educational programs; we still fail as a country and institution in curbing out the gender issues and in awareness with respect to a lady’s right.

NULL HYPOTHESIS

1. Section 3 (b) of MTP Act, 1972 violates right to life and personal liberty guaranteed under Article 21 of the constitution of India;
2. Media plays a very important role in creating awareness in the society and has to be the flag bearer now to change the perception of the society in abolishing the social and moral stigma that surrounds abortion.

ABORTION, MTP ACT, AND THE INDIAN CONSTITUTION

Before 1972, abortion was an offence punishable under the Indian Penal code and was permitted only when it was needed to save the life of the mother. This law because of the restriction imposed and the strictness led to its violation in numerous cases. The huge uproar and the demand for liberalization for a number of years led to the formation of Medical Termination of Pregnancy Act in the year 1972. When an unborn is in mother’s womb, it is necessary to understand here that it is a part of a woman’s body, and if a lady does not have a right over her own body then it is a complete infringement of right to life and personal liberty guaranteed by the state under article 21 of the Indian Constitution.

• It is necessary to note here that our Constitution does not confer any specific rights for an unborn and it can never be preceded over fundamental right of a women to electively abort as she is the one who ultimately has to carry the weight of an undefined and unborn child in her womb. Right to life and personal liberty offered under Article 21 has a very wide scope of interpretation.[6]
• This article in itself has become an inexhaustible source of many rights.[7] This right has been given a paramount position by our courts.[8]
• The statement that no person can be deprived of his/her life or personal liberty has been repeatedly quoted with approval by the Supreme Court[9] but was further interpreted to include the right to livelihood after certain controversy.[10]
• Now further interpretation of Article 21 suggests that commission of rape is a violation of right to life of the victim which includes right to live with human dignity.[11] It is difficult to understand why the interpretation of the article cannot include right to elective abortion that is abortion at any point of time and by choice of the woman.
• Among various rights available to a woman, deciding what should be inside her body and what not is the most fundamental right and the state should not take away this right from her. Right to abortion comes under the ambit of right to privacy which is recognized under right to life.[12]
• Mother’s right to abortion cannot be pressed for the rights of an unborn, which is not even a complete moral person.[13] The scientists have agreed that fetal brain will be sufficiently developed to feel some sort of pain approximately after twenty six weeks,[14] hence putting a twenty week bar on the termination of pregnancy is not even morally incorrect but scientifically also does not make any sense.
• Liberty, in the 5^th and 14^th Amendments to the United States constitution, has a very wide scope of interpretation and takes in all the freedoms.[15] With a slight contrast Article 21 of Indian Constitution qualifies liberty by “personal” and it can be inferred that the scope of liberty in Indian Constitution is narrower than that in the US.
• Still, it is not an issue with respect to Abortion as there is nothing that can be as personal as abortion.
• This can be substantiated by the judgment given in the case of State of Maharashtra v. Madhukar Narayan Mardikar,[16] the Supreme Court held that even a prostitute or a sexually available woman is entitled to right to privacy and no one can evade her privacy as and when one likes. Again explaining the right to privacy in R. Rajagopal v. State of Tamil Nadu,[17]  the court held that it is our fundamental right to be let alone and a citizen has the right to safeguard his own privacy, along with his family’s privacy, procreation, motherhood, child-bearing and education among other matters.
• The words like procreation, motherhood, child-bearing mentioned here very strongly contend that it’s a lady’s right whether she wants to procreate or not, whether she wants to be a mother or not, whether she wants to bear a child or not and even the narrowest interpretation of right to privacy includes right to abort. This absolutely makes it clear that Section 3(2) (b) of Medical Termination of Pregnancy Act, 1972 which imposes a 20-week restriction on abortion violates a woman’s fundamental right to abort.
• Though there has been a draft MTP bill proposed but that draft also focuses more on saving the doctors/medical practitioners from being prosecuted under section 312 to 316 of Indian Penal Code 1860 which relates to the unlawful termination of pregnancy.[18] Section 312 also covers a woman who causes herself to miscarry, which is really unreasonable as no mother would love to abort her own baby unless the social, financial or moral reason. The scope of this section, in researcher’s opinion needs to be narrowed down to include every legal entity except the woman who has the fetus.

ABORTION AND ROLE OF MEDIA: LIBERTY AND FREEDOM OF SPEECH AND EXPRESSION

• Justice Bhagwati in the case of Maneka Gandhi v Union of India[19] concluded that the expression ‘personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man or a woman. Adding to that Mr. Tripathi, in his venture “Spotlight on Constitutional Interpretation” writes that the innumerable aspects of personal liberty are impossible exhaustively to enumerate.[20]
• In the case of State of Maharashtra v. Prabhakar Pandurang[21], the court held that the right to personal liberty included the right to write a book and get it published and if this there is any sort of hindrance in exercising this right without the authority of law, then it violates Article 21 of the Indian Constitution.
• Through these cases, the researcher wants to throw some light on the power and freedom that press and media has in our country. After the removal of Section 66A of the Information Technology Act, which contained punishment for sending an electronic mail or electronic message for the purpose of causing annoyance and inconvenience or to decisive or mislead the addressee or recipient about the origin of such messages, shall be punishable with a punishment which may extend to a term of three years and fine, the social media has become more fearless than ever and can be the best way to put a standpoint.
• The preamble of our constitution inter alia speaks of liberty of thought, expression, belief, faith and worship and in the researcher’s opinion after severing the most barbaric censorship law in India, the Supreme Court has opened a huge gateway for the media to be the flag bearers of new thinking, opinions, standpoints, reasoning, and logic. Now, we as humans with reasonable intellect are duty bound to protect and preserve the rights of each and every citizen of this country.
• Article 19(1) that is the right to freedom of speech and expression imparts the right to know, receive and impart information[22] and since the state has a duty to protect the freedom of expression as it is the liberty guaranteed against the state, [23]it becomes the duty of the state to protect the rights of the press and media (which includes films) and a State cannot suppress a dramatic performance or any demonstration on account of threat of hostile audience or threat of violence.
• It is very easy to explain why there is always a threat of violence when there is a new view point proposed. In India, from ancient Vedic period, abortion is regarded as a social evil and is condemned in every religion followed in India and with respect to women and men, problem of gender issues are still prospering. We have seen in numerous cases how media trials help in identifying and repairing the loopholes present in different acts and statutes.[24]Though identifying non-allowance of abortion as a crime committed by state is not really a correct interpretation but at least we know that it is unfair and unreasonable restriction imposed by the state

ABORTION LAW IN THE UNITED STATES

• In the year 1973, United States witnessed a landmark judgment which changed the abortion laws of United States by introducing concept of fetal viability.[25] In this case the Supreme Court of US held that the abortion laws of Texas which criminalizes abortion except to save the life of the mother is violative of the Fourteenth amendment to the US Constitution and specifically the due process clause.[26]
• The US Supreme Court also held that the word “Person” mentioned in the fourteenth amendment does not include an unborn child which supports the researcher’s contention that an unborn child’s right cannot be given preference over a lady’s right to abort. Only when a fetus can survive outside the mother’s womb, the state’s interest as to the protection of a potential human life, but still cannot prohibit abortion when the life and health of the mother are in question.

Following this case, in Planned Parenthood Southeastern Pennsylvania v. Casey,[27] the Supreme Court created a new standard to test the constitutionality of State abortion restriction which was called the undue burden test instead of trimester test. Undue Burden is defined as having effect of placing substantial obstacles in the path of a woman’s choice.[28] While giving this judgment as well, the court was of the view that the constitutional protection of woman’s decision to terminate her own pregnancy is derived from the Due process clause of Fourteenth Amendment.

Now the role of media here is to create awareness about the developments that have happened in countries like USA and also about the right that is induced in every lady who never wanted pregnancy in the first place, or became pregnant because of some atrocities like rape or family pressure. Newspapers, TVs and different social media platforms are the catalysts of a progressive society and the persistent acknowledgement and awareness programs on the loophole in the MTP Act, 1972 from the media shall indeed lead to changing of opinion of the masses about abortion.

RECOMMENDATIONS

According to the author, just enactment of a new laws, rules and statutes, is not at all a solution to the problems with respect to abortion that have been pre-existing for centuries. The execution part of it has to also be taken into consideration. Also it is necessary to note here that women in need of abortion will obtain one whether safe or unsafe[29] so why not remove the upper gestation limit for the termination of pregnancy. It does sound like an extreme move or maybe one which totally neglects the rights of an unborn but idealistically and constitutionally it cannot be called wrong. If rights of an unborn are taken into consideration, then also the bar of 20 weeks set by the government which is subjected to judicial discretion which ultimately varies in different cases and in the lights of the recent judgment of Supreme Court.[30]The media needs to be more persistent with its approach and has to repeatedly make known to people the present problems with respect to MTP Act and has to continuously keep on interpreting the Supreme Court decisions and make it available to the masses as the reach on social network and media is much more than the judgments of the courts. Also the paid media has to come to an end as the country needs much more than regulated news. Our constitution guarantees the right to freedom of speech and expression and it’s high time everyone starts utilizing it for the betterment of the society. 

CONCLUSION

It cannot get simpler than this, if you are against abortion, then don’t have one but don’t restrict others to avail what is their fundamental right. No woman has an abortion for fun, but no woman is answerable as to why she wants to remove something from her body which may or may not develop into an entity. The question if put in different words is not even about the right to abortion, the emphasis must be not on the right to abortion but on the right to privacy and right to reproductive control where the involvement of the state should be minimal. As Hillary Clinton said that one cannot have maternal health without reproductive health, it is necessary to always keep in mind that reproductive health includes contraception and family planning and access to legal and safe abortion. According to the researcher, abortion is an extremely personal and intimate issue for a lady and anyone opinionating against abortion or trying to set a bar on the time period before which she can abort is actually putting shackles of some rhetoric moral hearsay on her and substantially infringing a lady’s right over her own body which comes under the ambit of right to life and personal liberty. Media has to play the role of a backbone, which always stands for the rights of pregnant women and has to bring the change in the opinion of the masses. As rightly said by Ayelet Waldman:

“Listen to the pregnant woman. Value her. She values the life growing inside her. Listen to the pregnant woman, and you cannot help but defend her right to abortion”

 References

[1] Work of Kshitij Asthana, Student of Symbiosis Law School, Pune (2^nd Year, BBA (H)LLB). LinkedIn- https://www.linkedin.com/in/kshitij-asthana-a70ab2a8/?trk=public-profile-join-page.

[2] Sanger Margaret. Autobiography (New York: Norton, 1938), p. 13; Katz, Esther, et al., eds, The Selected Papers of Margaret Sanger, Vol. 1: The “Woman Rebel” 1900–1928 (Urbana: Illinois University Press, 2003), pp. 4–5

[3] United States Congress, enacted on March 3, 1873.

[4] Kasturba Memorial, at 181 (1962).

[5] Young India, (Oct. 17, 1929)

[6]Mahendra Pal Singh,  V.N. Shukla Constitution of India, Twelfth Edition, Eastern Book Company

[7] Menka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597,620

[8] Kedar Singh v Union of India, (1989) 1 SCC 204: AIR 1989 SC 653

[9] Kharak Singh v. State of U.P., AIR 1963 SC 1295, 1301,1305; Sunil Batra v. Delhi Admn.,(1978 4 SCC 494, Olga Tellis v Bombay Municipal Corporation., (1985) 3 SCC 545: AIR 1986 SC 180, 194

[10] Port of Bombay v. DilipKumar Raghavendranath Nadkari, (1983) 1 SccCC 124, 134, where court held that right to livelihood is inclusive in Article 21; Begula Bapi Raju v. State of A.P., (1984) 1 SCC 66, where the court did not follow the judgement given in the preceding case and held that right to livelihood is not included in Article 21.

[11] Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490; Railway Board v. Chandrima Das (2000) 2 SCC 465: AIR 2000 SC 988

[12] Roe v Wade (1973) 410 US 113 (1973)

[13] Mary Anne Warren, “On the moral and legal status of abortion”, A fetus is not a person. All and only persons have full moral rights. A fetus, therefore, does not have full moral rights. Moreover,….a woman’s right to protect her health, happiness, freedom and even her life, by  termination of unwanted pregnancy, will always override whatever right to life it may be to appropriate to ascribe to a fetus, even a fully developed one.”
Available at www.thatmarcusfamily.org

[14] See Clifford Grobstein, “Science and the unborn: choosing Human futures (Basic Books. 1988) p.13

[15] Munn v. Illinois, 24 L Ed 77:94 US 113 (1877)

[16] State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57: AIR 1991 SC 207, 211. Also see, Govind Mishra, “Privacy: A Fundamental Right Under the Indian Constitution,” (1979-80) 8 & 9 Delhi L Rev 134

[17]R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632: AIR 1995 SC 264

[18] S. 312 defines offence of causing miscarriage as “Whoever voluntarily causes a woman with child to miscarry shall if such miscarriage be not caused in good faith for the purpose of saving the life of a woman to be punished with imprisonment of either description of term which may extend to 3 years, or fine or both and if the woman be quick with the child shall be punished either with imprisonment of either description for a term which may extend to 7 years, and shall be liable to fine.”

[19] Maneka Gandhi v Union of India, (1978) 1 SCC 248: AIR 1978 SC 597,620.

[20] P.K. Tripathi, “Spotlight on constitutional Interpretation” (1972) 166.

[21] State of Maharashtra v. Prabhakar Pandurang, AIR 1966 SC 424: (1966) 1 SCR 702

[22] S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149, 234; Ministry of Information and Broadcasting Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161

[23] S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574

[24] Nirbhaya case 2014 (2) ACR 1615 (SC), 2014 iv AD (S.C.) 193, Shreya Singhal v. Union of India, (2013) 12 SCC 73, Arushi Talwar case (2012) 2 SCC 188

[25] Roe v. Wade, 410 US 113 (1973)

[26] US Supreme Court Reports, Vol 35, The lawyers cooperative Publishing co., New York p. 147 to 199

[27]Planned Parenthood Southeastern Pennsylvania v. Casey, (1992) 120 L. Ed 2d 67

[28] Sai Abhipsa Gochhayat, “Understanding of Right to Abortion Under Indian Constitution”

[29] Unsafe abortion: the preventive pandemic. Grimes DA, Benson J, Singh S, Romero M, Gantra B, Okonofua FE, Shah IH. Lancet 2006 Nov 25; 368  (9550):1908-19

[30] The Supreme Court rejected the plea of a 37 year old woman to abort her 26 weeks old fetus when it showed signs of Down’s syndrome. It is necessary to take into note that when the plea came to the court, the fetus was only 23 weeks old. Contrarily, in 2016, the Supreme Court allowed a rape survivor to terminate her pregnancy beyond the prescribed limit of 20 weeks citing grave physical and mental challenges. Available at supremecourtofindia.nic.in/FileServer/2017-01-17_1484639749.pdf