This book talks about the history of the Public Interest Litigation and how it evolved to the current form. No other country has anything similar to the PIL and clueless western commentators who praise the PIL are often referenced by Indian judges as an endorsement and take great pride in that.

Public Interest Litigation — A Dangerous Farce

Courts today are involved in everything from whether car windows should be tinted or how wide the roads should be, by using the PIL as an excuse to play God and take over the domain of the legislature and the executive. PILs have contrary to public perceptions been extremely anti-poor. The courts have used PILs as a way to demolish slums at a rate that even Indira Gandhi during the emergency wasn’t able to. Tribals were displaced. Industries were shut and even the government wasn’t able to do anything about it. They had to obey the court.

The courts don’t even need a petitioner anymore. They just take Suo Motu cognizance of random things and start ordering the government. There is no role for the petitioner in public interest litigation. The court appoints an amicus (who tends to be a prominent lawyer chosen by the court, usually people like Harish salve etc). And once appointed it becomes more like a private discussion between the amicus and the court. There are no standards of evidence. Courts literally operate on hearsay and treat those as facts.

Most of the time the petitioners get stiffed, parties who are affected by the judgement are not given a chance to be heard or made a party to the proceedings. This is the definition of injustice and runs contrary to all accepted principles of law and jurisprudence.

About the Author

Prof. (Dr.) Bhuwania did his B.A., LL.B. (Hons) at the National Law School of India University, Bengaluru and an LL.M. from the School of Oriental and African Studies, London, before completing his Ph.D. at Columbia University, New York. He has previously held teaching positions at South Asian University and Ambedkar University Delhi. 

He has also held various visiting positions, including at the Centre for Modern Indian Studies (CeMIS) in the University of Göttingen, Centre for the Study of Law and Governance (CSLG) in Jawaharlal Nehru University as well as at the Centre for the Study of Developing Societies (CSDS) in New Delhi. 

The post PUBLIC INTEREST LITIGATION: COURTING THE PEOPLE — Book Review appeared first on WISER WORLD.

When we talk about India, we do have a provision for abortions, sections 312-316 of the Indian Penal Code (IPC) and the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971 covers the abortion laws in India. The IPC sections 312-316 criminalise abortion; “the person undertaking the abortion as well as the doctor (or registered medical practitioner) facilitating the abortion are liable to be prosecuted.”

The government of India, though in 1971, enacted the MTP Act as an exception to the IPC. The act was enacted to exempt medical experts from the criminal obligation on the condition that they terminate the pregnancy as per sections 3 and 5 of the act. The prelude to the act expresses that it is, “An act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.” Therefore this whole system of legal abortion is doctor centric and prescribes abortion in specific circumstances.

The Proposed Amendment 2020

The MTP act was enacted in 1971 and hence the law needed changes, activists in India for the last decade have been pushing for legislative changes to the law.

The central cabinet’s sanction of the Medical Termination of Pregnancy (Amendment) Bill 2020 was reported on January 29. According to Prachin Kumar, “The amendment was long due and has made some anticipated changes demanded by women’s groups and courts, including the Supreme Court.”

Vrinda Grover in her column for the Hindustan Times wrote in March, that it’s a welcome amendment. She further states that the bill among other things, “proposes to place an unmarried woman and her partner at par with a married woman and her husband, in securing abortion due to contraceptive failure.” This is an idea that carries forward the rationale of the domestic violence act. The law on domestic violence makes no distinction between the rights and protections available to a married woman or a woman who is in a live-in relationship.

The Press Information Bureau on 29th January 2020 published the amendment, it stated that “The salient features of this act is enhancing the upper gestation limit from 20 weeks to 24 weeks for special categories of women which will be defined in the amendment to the MTP rules and would include vulnerable women, including survivors of rape, victims of incest and other vulnerable women like differently-abled women and minors.”

The MTP (amendment) bill still requires or rather proposes that a doctor sign off on termination of pregnancies up to 20 weeks old, and two doctors do the same for pregnancies between 20-24 weeks old.

The bill also intends to expand access to “safe and legal abortion services on therapeutic, eugenic, humanitarian or social grounds”, in case of foetal “abnormalities”. The proposed amendment makes it mandatory for the government to set up a medical board in all the states  and union territories. The responsibility of the board will be for the diagnosis of substantial foetal “abnormalities” that need termination after 24 weeks.

These are some of the proposed changes in the law. Now although there are certain good points in the amendment, a lot of activists think that this amendment missed to address some of the important issues.

Criticism of the Amendment

Shampa Sengupta in an online session organised by the Centre for Health Law, Ethics and Technology at Jindal (CHLET), Global Law School, Sonipat, strongly objected to the language used by the PIB in its announcement of 29th January 2020 regarding the amendment. “It’s not from the department that looks into the disability affairs.. But that does not mean you can use a word as ‘differently-abled’, it is not legally accepted in our country”, said Sengupta about the announcement.

Dr. Aqsa Shaikh in the same series of sessions organised by the CHLET said that it’s very unfortunate that it took almost 50 years for the government to realize that the MTP Act needed some changes. According to her, these changes are still insufficient, stakeholders have not been consulted, and a very patriarchal approach has been adopted. Shaikh further stated that “Under the MTP, the pregnant person does not have a choice, the person must seek permission. If the permission is granted then the doctor will conduct the procedure, else, the doctor will not. So that approach has to change.”

Tejasvi Savekari of Saheli Sangh in the session pointed out that during this Covid-19 pandemic, and because of the resultant lockdown, a lot of abortion cases have been seen. In most of these cases, safe abortions could not be done because of a lack of access to safe abortions.

She raised a very valid question, “who will take responsibility for this? Instead of simplifying the system, the law is making it more complicated. Firstly one has to take permission from two registered doctors and then from the medical board. So much time will be lost in all this, so will a woman be able to get a safe abortion done? Does she not have a right over her own body? Is she not capable enough to make her own decisions?” She asserted the fact that there are absolutely no answers to these questions. She said that it’s unfortunate that the law had no consultation and it saw no protest at all.

Sex Workers and Their Plight

The life of a sex worker is not easy. There are various stereotypes associated with the profession and the sex workers have to deal with stereotypes when it comes to their abortion rights as well. Kiran Deshmukh of National Network of Sex Workers CHLET session revealed that sex workers are always treated unfairly and are discriminated most of the time.

Deshmukh said that when a sex worker is pregnant and when she goes to a civil hospital, the staff of the hospital does not treat her well because they know that she is a sex worker. The strong stereotype that a sex worker can’t have a child is visible in the actions of the hospital staff. According to Deshmukh, matters get worse when a pregnant person is also HIV positive. Then that person is discriminated against more than anyone else. She stated that “we consider this form of discrimination as violence and this violence will not end till we do not collectivize. Collectivizing is very important if we want to fight against this violence. The womb is mine, it is my right to decide to continue or to terminate the pregnancy. But the doctors do not listen to us, especially in civil hospitals.” She further added, “when we collectively say the same thing, they have to listen to us, and provide us services because the power of a finger is different from the power of a fist.”

The government has not taken into account the problems of the sex workers as is clear from Deshmuk’s statement and above discussed amendments.

No Consideration for Differently Abled

The proposed amendments have not given due consideration to the needs of the differently-abled persons. Rupasa Malik of CREA is of the view that proposed amendments to the MTP Bill 2020 are limited and that it, in no way, reflects the ‘transformative changes’ which are vital to the MTP Act which is extremely dated. Malik said, “there exists this idea that all women and girls with disabilities are asexual and, therefore, what is the need for even thinking about them in this context of abortion access?”

Shivangi Agrawal of Determined Art Movement, in another session organised by the CHLET on the topic ‘A Disability Rights Perspective on Abortion: A Nuanced Understanding’, said “When I first read the MTP Amendment, it said to me that disabled people are irrational for having lives, for existing in the world. I feel like the government has continuously ignored disabled activities and they do not value the decision-making capacity that disabled people have.” She further added, “I feel like this bill encompasses the idea that providing for disabled people is too much.”

Dipika Jain in her column in TheWire mentioned about the ‘abnormalities’. She wrote “disability rights advocates have argued that foetuses with potential disabilities should not be singled out for abortions. This reinforces the notion that persons with disabilities have less value than persons without disabilities, and that all fetuses with ‘abnormalities’ should be terminated. It should be the sole discretion of the pregnant person, in consultation with their doctor, to carry a pregnancy to full term or to abort, even if the foetus has a potential disability, cognitive impairment and/or other medical conditions.

Conclusion

Abortion is a matter of rights of a woman. Even the Supreme Court of India has recognized that in the landmark case of 2009, Suchita Srivastava v. Chandigarh Administration. The court said, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”

In 2017 in the case of Justice K.S. Puttaswamy v. Union of India, the SC identified privacy as a fundamental right under the Indian Constitution. The right to privacy within its scope includes the rights to bodily integrity, reproductive choice and decisional autonomy. Justice D.Y. Chandrachud cited the landmark 2009 case Suchita Srivastava v. Chandigarh Administration, in the Puttaswamy case.

It’s unfortunate that even after such decisions, the proposed amendments continue to maintain the original paternalistic doctor-centric framework of the MTP Act. The decision to terminate is still in the hands of the doctor and not the pregnant person. This needs to change.

The post Is the MTP (Amendment) Bill Really Progressive? appeared first on WISER WORLD.