Legal Regulation of Abortion in India: Complexities and Challenges: Justice Gita Mittal Unveils Advocacy Manual

The Advocacy Manual has been prepared by the Law and Marginalisation Clinic, Centre for Justice, Law and Society (CJLS) at Jindal Global Law School under the supervision of Professor Dipika Jain, Disha Chaudhari, and Natasha Aggarwal as part of the clinical course titled "Reproductive Justice and the Law Clinic" in collaboration with the Center for Reproductive Rights (CRR) Asia, CommonHealth, and Rising Flame. The Advocacy Manual presents a holistic understanding of the laws governing abortions and highlights unintended legal conflicts and lacunae in implementation.

In the special address, Justice Gita Mittal (Former Chief Justice, High Court of Jammu and Kashmir; Former Acting Chief Justice, High Court of Delhi; Chairperson, Broadcasting Content Complaints Council) emphasized the need to examine the barriers to abortion access from multidimensional perspectives that account for the experiences of persons with disabilities, adolescents, Dalit, Bahujan and Adivasi persons, and trans persons. She further stated that: "It is not just law that creates barriers to abortion access. There are other barriers - stereotypes against single women, no information about their bodies which lead them to seek unsafe abortion, fear of ostracization by family, insufficient healthcare facilities, failure to ensure confidentiality, fear of prosecution."

Justice Mittal also touched upon the criminalisation of abortion in the Indian Penal Code as well as the fact that "the MTP Act does not center bodily autonomy of pregnant persons." She noted the need to relieve abortion from criminality and adopt a rights-based approach to sexual and reproductive health and rights, including abortion.

In the welcome address, Professor (Dr) C. Raj Kumar (Founding Vice Chancellor, O.P. Jindal Global University) acknowledged the tremendous efforts and strides in the field of reproductive justice by the Law and Marginalisation Clinic, Center for Reproductive Rights (CRR), CommonHealth, and Rising Flame. He stated that "where there are injustices, there is a tendency to feel exasperated, demotivated and a sense of vulnerability. However, the saga of human rights is of hope and not of despair. This manual has been written with that idea and vision." In her welcome address, Dr Faustina Periera emphasized the Advocacy Manual's value in understanding intersectional barriers to access to abortion in India and as a "blueprint for various other countries in this initiative."

Introducing the Advocacy Manual, Professor Dipika Jain (Professor of Law, Vice Dean, Director, Law and Marginalization Clinic, Centre for Justice, Law and Society, Jindal Global Law School) underlined the collaborative nature of the Reproductive Justice and the Law Clinic, which was envisaged as a first-of-its-kind clinical course to transform classrooms into spaces of critical discourse and experiential learning. Hon'ble Justice Gita Mittal also emphasized the need to bring such courses and discourse on sexual and reproductive health and rights to law schools as well as legal and judicial organizations. She also stressed the importance of including courses on sexual and reproductive health in schools and colleges.

The Advocacy Manual engages with (i) the impact of certain legislations on abortion access, such as the MTP Act, the RPWD Act, the POCSO Act, and the PCPNDT Act, (ii) a critique of this legal framework with respect to the failure to protect the autonomy of pregnant persons, and (iii) the exacerbated impact of barriers to abortion access on marginalized persons and groups. The Advocacy Manual uses case studies to demonstrate the barriers faced by trans, Dalit, Bahujan, Adivasi and Muslim persons, persons with disabilities, and adolescents in accessing abortion services. Finally, the Advocacy Manual proposes recommendations to the current legal framework on abortion services, including the decriminalization of abortion under Sections 312 - 318 of the Indian Penal Code and the implementation of a rights-based framework governing access to abortion.

The launch event also featured a panel discussion with Vrinda Grover (Advocate, Supreme Court of India), Dhrubo Jyoti (Editor-Views, Hindustan Times) and Krishanu (Former SAFE Fellow, The YP Foundation) moderated by Nidhi Goyal (Founder and Executive Director, Rising Flame). Vrinda Grover began the panel discussion by noting the "deep-rooted prejudice against abortion of all kinds", despite the state's desire to control population growth and family planning.

This panel discussion touched upon issues of caste, gender and disability and highlighted the importance of an intersectional framework in examining access to abortion services. Dhrubo Jyoti asked that greater attention be paid to the social context within which laws and policies are made as well as "who is drafting the policies or whose views are being taken into consideration." In particular, they emphasized the impact of caste-based discrimination on accessing abortion services as well as the media's role in perpetuating the criminality or scandalous nature of abortions. In addressing the role played by gender in accessing abortion services and in light of the MTP Act's use of the word "women" in permitting access to abortion, Krishanu noted the emphasis on "women's rights" in abortion-related discourse and the move towards saving and preserving the category of "women." Krishanu stressed the important of engaging in conversations about trans persons who have reproductive organs and, therefore, reproductive rights: "The trans population & sex workers population & Dalit population are seen as dirty & contaminated. Attendants refuse to touch patients. The understanding of what is dirty is being excluded from law & way medicine is practised, is difficult for such communities."

Nidhi Goyal, the moderator, brought forth the perspective of disability rights in advocacy for SRHR and abortion rights. She referred to the exceptionalisation of foetal "abnormalities" for the termination of pregnancies after 24 weeks of gestation, which furthers the prejudice that persons with disabilities are unwanted or undesirable. She also pointed to a few case studies, which highlighted barriers faced by persons with disabilities with respect to their SRHR, including the taking away of reproductive, bodily and decisional autonomy.

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