In January this year, India’s union cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act. The amendment raises the legally permissible limit for an abortion to 24 weeks from the previous limit of 20 weeks. and now also acknowledges the failure of contraception as an acceptable reason for an abortion. Along with that, the law now also acknowledges the failure of contraception as an acceptable reason for abortion and has been extended to any woman or her partner replacing the old provision that was only for married women, placing India in the top league of counties serving women who wish to make individual choices as part of reproductive and gender rights.
At a time when United States‘s Roe V. Wade is under scrutiny, and Poland’s abortion laws have been restricted even further, it’s surprising that despite being a relatively conservative nation, India has one of the most progressive laws around abortion in the world. Though it may be assumed that this is a result of India’s culture and norms, especially since sex-selected abortions have been commonly practiced throughout the subcontinent, it seems to have more to do with India’s constitutional morality and the distinction it makes its majoritarian social morality.
The general consensus in political theory is that laws and people evolve together, hand in hand. The changes made to laws are a result of a change in attitudes, beliefs, and norms. However, this isn’t necessarily the case in India. The Indian constitution and legal framework, instead, was created to be an instrument of social change. India being a nation entrenched in traditions, religion, caste hierarchies, its founding members understood that the way to change the country into a liberal democracy was to create and use progressive laws and liberal principles to shape the nation’s culture and norms.
“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top –dressing on Indian soil, which is essentially undemocratic.” – B.R Ambedkar.
Constitutional morality, according to Ambedkar referred to the adherence to core values of India’s constitution, that extended to create a society based on social, economic, political equality, and justice. This wasn’t just limited to the constitutional provisions literally but was vast enough to ensure the commitment to constitution values over what was considered socially moral.
In the landmark 2018 Navtej Singh Johar case, which pertained to the criminalization of non-heterosexual sexual acts, the supreme court scrapped the law saying that “constitutional morality cannot be martyred at the altar of social morality”. The same law was challenged in Singapore a few months after India’s judgment but was rejected on the grounds of threatening public morality. According to Anand Grover, a senior advocate practicing in the Supreme Court of India, “Singapore courts appear to follow the “literal” interpretation of fundamental rights whereas we in India interpret fundamental rights in an expansive way that there is such as a huge difference in the result, especially on the notions of equality which is still tied only to the classification test”.
Similarly, in the Sabrimala judgment regarding the restriction of women that belonged to a certain age group into the Sabrimala temple in Kerela, the courts observed that “existing structures of social discrimination must be evaluated through the prism of constitutional morality. The endeavor is to produce a society marked by compassion for every individual”.
The Sabarimala verdict was historic because unlike abortion and section 377, the Sabarimala judgment couldn’t have been attributed to anything other than constitutional morality. There is some ambiguity about how abortion and members of the LGBTQ+ community are seen in India’s cultural history, but the Sabarimala judgment was clearly against what has been a belief and a social practice for many years now. The verdict and social morality were are a clear-cut clash, and the violent opposition and widespread protests against the verdict were proof of that. However, despite that, the law and constitutional values were upheld.
Unfortunately, since the gaps between the constitutional and social morality are so wide, and overturning in the former doesn’t necessarily lead to a change in the latter. Even after the Sabarimala judgment was passed in 2018. only a handful of women have been able to enter the temple, either because their entrance is blocked or they’re forced to leave. However, more importantly, the number of women who’ve entered the temple isn’t just low due to the difficulties of entering the temple, but also because most women also believe that it is wrong for them to enter the temple between their menstruating years. Similarly, despite the NALSA judgment which identified trans people as people of the third gender and affirmed that fundamental rights will be equally applicable to them, and section 377, members of the LGBTQ+ community still face discrimination often in the form of violence.
With that being said, constitutional morality does play a pivotal role in shaping India, even if that process is very slow. Abortion was made legal 70 years ago in India, yet up until 2014, 78% of all annual abortions were unsafe, likely due to lack of education, accessibility, and the stigma attached to the act. It is important to note that illegal sex-selective abortions are unlikely to play a role because 81% of most of these abortions happen during the first trimester, before 12 weeks, while the sex of a fetus is usually detected by sonography after the 13th week. With the aid help of educational initiatives and proactive policies such as the Yukti Yojana in Bihar, a public-private partnership where women can access abortion care free of cost from accredited private providers, the percentage of annual unsafe abortions has decreased from a staggering 78% to a 56% in 2017. Maternal mortality rates, due to unsafe abortions have also decreased from 13% or 8%.
Aradhya is a student of Psychology, Biology and Media Studies at Ashoka University.
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