Professor Upendra Baxi recently spoke at OP Jindal University on the Medical Termination of Pregnancy Act. Here is a transcript of his remarks.
Mr Vice Chancellor, OP Jindal University, Dr. Dipika Jain and her Colleagues, distinguished faculty colleagues, dear students, and gentlepersons:
All of us meet under shadow of the US President-elect Donald Trump.
I just this morning read that Carol Sanger, a professor at Columbia Law School, pressed “send” to e-mail her publisher the final version of her book about abortion. As it turned out, the Champagne bottle remained unopened as the results poured in. Now she says: ‘It feels like a death,”. She quotes the observation of one of her students: “‘We think we are just walking down the street, and everything is the way it was, but it’s not.”
In his campaign speeches, Trump has vowed to promote anti- abortion ethos and promised judicial elevations to SCOTUS which would reverse the Roe v Wade decision. He even once said that women who prefer and demand abortion should be sent to the gallows. His pro-life stance certainly does not give much relief from gender based stereotypes, unless he decides to act differently as the President.
And his running mate (now Vice President elect, and Governor of Indiana) even singed a bill into law that required funeral for aborted foetuses.
This monograph could not have been more timely and I suggest that they share a few copies with the President-Elect and members of his would be Cabinet, the Congress and the Senate, and eleven SCOTUS nominees.
India has many problems but reproductive rights is not one of them and maybe there is scope for reverse learning here for the United States of America.
In any case, now (more than ever) is the time for critical solidarity among women of the world.
I congratulate The Centre for Health, Law, Ethics and Technology at Jindal Global Law School for this report on legal judgments and orders relating to medical termination of pregnancy.
The Monograph briefly explores judicial decisions and is particularly important form professional health care providers. It would even be more important if it were translated in some constitutionally recognised languages so that the affected women have a more direct information about the living law.
The search to translate normative law into living law is always unending: conscious activists and bureaucrats mist now step in to accelerate the pace and the rate of social transformation. In this context, the Centre will also do well in bring in another monograph on women’s’, and human rights and social movements role in generating and sustaining women’s health, life, equality, and reproductive rights.
Although it is presented in a digest from, the monograph renders an important social service in stressing that safe abortion is declared as women’s right over her body. Whatever be the original intention the MRTP, the SCI (Supreme Court of India) and most High Courts have performed constitutional wonders by aligning this right to Article 21 rights to human dignity.
The monograph does well to highlight the ruling that the requirement of consent for abortion does not stipulate spousal consent but only consent of close womenfolk. This is no doubt an important advance but further progress entails only the consent of the affected woman: only then would the emancipation of women from the sorrows and sufferings of imposed patriarchy will be fully attained.
I would like to particularly emphasize that ways in which the 20-week limit for termination in India have now been overcome by constitutional interpretation throughout India where courts have allowed for post-20 week terminations where the ‘pregnancy resulted from rape and where the pregnancy was not viable’. This is a welcome recent judicial interpretive trend though some day we should ask why was it became necessary in the first place.
There are troubling discourses such as V. Krishnan v. Rajan Alias Madipu Raja, (December 1993) where ‘the court makes a strong case for banning abortion altogether through a selective exploration of medical, legal, and religious texts’ and even ‘endorses teenage marriage and pregnancy’. Such decisional discourses continue to suggest not just some confused judicial understanding of pro-life approaches but also an imperfect appreciation of gender equality as underscored by the Constitution. More importantly, they stress the importance of constant vigil, which Justice Learned Hand described (in another context) as ‘the price of liberty’.
I regret that I cannot be with you for the rest, as all correspondence with me somehow indicated that this conference will end with lunch! But I had a glimpse of your animated conversation this morning concerning guardianship under the MRTP Act. I agree with the view expressed that what matters is not so much the consent of the guardian in minor rape cases and unwanted teenage pregnancy but of the freedoms and rights of the violated self (being engaged with the Bhopal catastrophe since day one till now I don’t deploy the term ‘victim’ as it is a way of revictimizing the victim). But I wonder whether the concept or the doctrine of parens patriae is of any use in the context of MRTP consent. It is of course a cause of continuing agony that this doctrine was used by the State and the Supreme Court to promote a settlement with the Union Carbide and its affiliates. But it also true that that a multinational corporation was sued in the United States courts by a sovereign state as a third world plaintiff.
Finally, (and for the time being) any transformation of the normative law requires that we transform also the objectives of MRTP Act from those of population control and family planning measure into those that aim at genuine promotion and protection of full reproductive autonomy rights of women. I do not think that a full normative right to a safe abortion and women’s autonomy over their own bodies (as a matter of principle) have been fully recognized. There is need for a judicial invention of a new human right under Article 21 of the Indian Constitution, which Parliament may later recognize as a separate fundamental right (as happened in case of the right to education).
In this context, may I suggest that the Centre and the Jindal Global University may do well to follow the idea of a Young Person’s Law Commission to prepare a report and a draft bill in this regard? We at Delhi University, in the 80s, did precisely that in relation to the Beggary Act. The experiment failed to yield a new policy and law but those involved in preparing the bill and the report learnt much and the socio-ethical conviction that it generated about human rights still stays with students who have become lawyers and even Justices. Perhaps, time has arrived now for this idea when there is so much emphasis on India that has the largest number of young persons in the world.
May I once again congratulate Dipika Jain and her colleagues, and of course Raj Kumar—the indefatigable Vice Chancellor, and the OP Jindal Global University, for this important publication and future activities of the Centre?