COMMENTARY

Economic & Political Weekly EPW december 26, 2015 vol l no 52 25

of people in the polity, having respect for diversity. In order to prevent India from sliding into an anti-democratic future, the Congress must reinvent itself to emerge as an effective opposition. For that, we do no longer need a Congress (I) Party, rather the Indian National Congress

which spearheaded India’s struggle for independence.

notes

1 As example, let me mention a conversation with friends in the neighbourhood I live. In the mid-2013 during a debate on the merits of the CPI(M) and the Trinamool Congress, a friend,

who is a corporate executive, criticised Ben-gali political culture for being “impractical,” because it ignores “performers” like BJP. A nother friend, also a corporate executive, seconded: “close your eyes, think about any company–it is operating in Gujarat!.”

2 Your Voice, Our Pledge: Lok Sabha Election Manifesto 2014 (New Delhi: Indian National Congress); available at: http://inc.in/about-congress/mission, accessed on 8 December 2014.

Manalika Borgohain (manalika@gmail.com) is with the Centre for Political Studies, JNU, New Delhi.

Justice versus Emancipation A Feminist Evaluation

Manalika Borgohain

The recent intervention by the Supreme Court to allow an abortion beyond the 20-week limit in extenuating circumstances is an important milestone in the fi ght for women’s rights over their bodies. It is a victory for women’s emancipation from the narrow purview of the law, which in its bid to uphold legal justice, compromises social justice. The judgment also strengthens the case for an overhaul of the Medical Termination of Pregnancy Act, which has been long overdue.

Feminist ideology in the 21st century is showing signs of having reached the limits of the discourse of jus-

tice. So it is heartening to see that it is gradually taking its good fi ght to a realm beyond justice, in pursuit of emancipa-tion from the shackles of legal dogma that cannot always address gro und realities. This was in evidence in the recent intervention by the Supreme Court in the question of allowing abor-tion for a 14-year old rape survivor in the 25th week of her pregnancy, much later than the permissible statutory limit of 20 weeks.

The feminist movement began its struggle for justice with what Anne Phillips has famously coined the “politics of presence.” The term encompasses political and legal rights for women, such as suffrage, political representation, inheri tance rights, equal pay, etc. Having made considerable strides in this area, the movement has gradually moved the struggle to what can be termed now as the “politics of bodies”—issues includ-ing sex work, pornography, abortion rights, etc.

While the fi rst category, “politics of presence,” dealt with identity and capa-bility issues, the second category, “politics of bodies,” has a direct bearing on the “sexed body.” And within this distinction between politics of presence and politics of bodies lies the difference between justice and emancipation. Whereas justice entails carrying out the law of the land in all fairness, without fear or favour, emancipation recognises that codifi cation

of laws on diverse, complex issues per-taining to women has the potential to subvert the feminist cause as much as to advance it. Instead, the philosophy of emancipation espouses taking cognisance of the laws, but looking beyond justice to locate the sexed body in the larger social context and providing institutional sup-port accordingly.

Changing Medical Opinion

So far as the law is concerned in abor-tion rights, India readily adopted abor-tion as a population control measure and enacted the Medical Termination of Pregnancies (MTP) Act in 1971 to regu-late the practice. The ethical twist in the debate only came about in the context of a growing number of cases of sex- selective abortions in the country, foll o-wed by an alarming rate of female foeti-cides. To put a stop to this rampaging practice, the government enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act in 1994. Apart from this act, disputes regarding abor-tions in India are still settled according to the 1971 MTP Act, which is based on the recommendations of studies commis-sioned for the act, also conducted in 1971. Needless to say, medical science has made great technological strides since then, but these are not refl ected in any amendments to the MTP Act.

As things stand now, pregnancies up to 12 weeks can be terminated based on a single opinion of a doctor provided in good faith, and pregnancies between 12 to 20 weeks can be terminated with a go-ahead from two doctors. Abortions of pregnancies with a gestation period beyond 20 weeks are not permitted by the act, as these are considered unsafe. Ironically, many medical studies have established that while early abortion is certainly safer than a late-term a bortion, even then, any kind of abortion

COMMENTARY

december 26, 2015 vol l no 52 EPW Economic & Political Weekly26

is statistically safer than a full term delivery of a pregnancy (British Pregnancy Advisory Service 2010; Furedi 2010). It is thus very important that the courts take cognisance of the changing medical opinion since 1971.

A famous appeal in this matter was made by Harsh and Niketa Mehta back in 2008, when they discovered in their 25th week that their foetus had a serious risk of a cardiac medical condition (Eco-nomic Times 2008). The Bombay High Court turned down their appeal, as the law did not permit an abortion beyond 20 weeks. The potential trauma this pregnancy could cause the couple, and the low quality of life the child could be condemned to suffer, did not fi gure as a consideration in that judgment. The sub-sequent miscarriage that Niketa Mehta suffered settled the matter for the cou-ple, but the case strengthened demands from activists and women’s rights groups for a relook at the archaic act.

Their plea might fi nally be answered, as the Supreme Court in 2014 agreed to review the provisions of the MTP Act based on fresh scientifi c evidence in the fi eld. In the meantime, the case concerning the 14-year old rape survi-vor and her plea to be granted an abor-tion was bro ught to the Supreme Court’s attention.

First, the Himmatnagar Sessions Court and then the Gujarat High Court had denied permission for the abortion, citing the same archaic MTP Act, which disallows abortions beyond the 20-week gestation period. The Gujarat High Court, however, did express sympathy and directed the state government to take care of the girl’s medical expenses and also to pay Rs 1 lakh to the family as compensation (Times of India 2015). This is typical of the attitude in authority circles towards human life, which is much too often weighed for its worth in money. This attitude, however, has no time to spare a thought for the fact that the girl is too young and unfi t, both mentally and physically, to go through with a pregnancy, or any thought for the stigma she may suffer as being the un-married mother with child, or worse, for the trauma of raising a child conceived of rape. All this is to be swept away,

because some law long overdue for a review provides an arbitrary threshold of 20 weeks.

Virtue of ‘Equity’

Finally, humanity and reason were on display when the appeal reached the Supreme Court. It displayed a com-mendable sense of what Aristotle called, in the Nicomachean Ethics (Book V), the virtue of “equity”—justice that goes beyond the written law. In it he cites an example to explain the concept—sup-pose a law prohibits the infl iction of a wound with an iron weapon. Suppose X

punches Y in the face while wearing an iron ring. The question arises, should X

face charges for wounding Y with an iron weapon on account of wearing that ring, in addition to the assault charges? Surely not, we would think. And Aristo-tle would agree with us, as this would be a case for equity, for seeing the case in a wider perspective.

The wider perspective is what the Supreme Court bench comprising Justices A R Dave and Kurian Joseph adopted, saying that it could not quite order a ter-mination of the pregnancy as it would be in direct violation of an established law (Nair 2015). However, it showed great sensibility in passing a “fl exible” order, wherein it left it up to a team con-stituted of doctors and a clinical psy-chologist to decide if termination of the pregnancy was in the girl’s best inter-ests, both physically and emotionally. If this was found to be the case, then doc-tors could go ahead with the abortion. As a direct result of this judgment, doctors were able to successfully operate on the

girl in the 25th week of her pregnancy (Indian Express 2015).

This action by the Supreme Court has considerably strengthened the case for an overhaul of the MTP Act. It also strengthens the feminist call for grant-ing greater autonomy and right to the woman over her body. Whereas justice would require following the law to the hilt, the Supreme Court’s decision sup-ported an emancipatory outlook of ad-hering to the underlying spirit of the law, which was to check the prolifera-tion of unsafe abortions in the country, not to deny legitimately needed ones.

References

British Pregnancy Advisory Service (2010): “Under-standing Abortion Statitstics,” 2 May, http://www.abortionreview.org/images/uploads/ Abortion_Statistics_May2012.pdf, accessed on 6 September 2015, p 18.

Economic Times (2008): “High Court Refuses Permis-sion to Abort 26-Week Old Foetus,” 4 August, http://articles.economictimes.indiatimes. com/2008-08-04/news/27711571_1_niketa-mehta-abortion-control-laws-foetus, accessed on 6 September 2015.

Furedi, Ann (2010): “A Moral Defence of Late Abor-tion,” http://www. abortionreview.org /imag-es/uploads/AR_LateAbortion_Dec2010.pdf, ac-cessed on 6 September 2015, p 2.

Indian Express (2015): “Supreme Court: A 24-week Pregnant Teen Can Abort If Doctors Permit,” 30 July, http://indianexpress.com/article/ india/india-others/sc-quashes-hc-order-allows-mi-nor-rape-victim-to-abort-foetus-after-medical-permissions/, accessed on 6 September.

Menon, Nivedita (2004): “Recovering Subversion: Feminist Politics beyond the Law,” New Delhi: Permanent Black.

Nair, Harish V (2015): “Let the Doctors Decide,” 28 July, http://www. dailymail.co.uk/india-home/indianews/article-3178015/Let-doctors-decide-Supreme-Court-says-14-year-old-rape-vic-tim-late-abortion-24-weeks-medics-rule-life-risk.html, accessed on 6 September.

Times of India (2015): “14 Year Old Rape Victim Moves SC for Abortion,” 28 July, http://timesofi ndia.indiatimes.com/india/14-year-old-rape-victim-moves-SC-for-abortion/article-show/48245079.cms, accessed on 6 September.

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