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I am not in favour of an outright ban on research on abortion as the issue of abortion has been a subject of controversy for over four decades in India. It has also been a subject of heated debate in the Indian Parliament and many high courts, but this should not be used to narrow down the possibilities in any way.
Abortion is not a ‘crime’ in India. It is neither a crime against the state nor a crime against humanity. Any law that cannot provide a reasonable solution to the problem of unwanted pregnancy is neither just nor moral. Any law that perpetuates discrimination on grounds of gender and sexual orientation is not only unjust, but also immoral.
What is criminal is the killing of an individual being. Yet, there are laws that make murder ‘felonious’, like the Indian Penal Code, the Motor Vehicle Act, the Evidence Act, and the Homicide Act. Even within these laws, there are many legal provisions that differentiate the treatment of individuals and whether they are allowed to be ‘tried’ under the ‘code’.
The penal law is framed by Parliament, but its definitions and concepts are to be interpreted by the courts. The definition of ‘murder’ and ‘causing death by culpable negligence’ are determined by the Supreme Court in various cases. The concept of ‘mens rea’, the voluntary and knowing state of mind that distinguishes between different acts, is what decides whether a particular act is punishable under the law. In the case of abortion, there is no ‘mens rea’.
What we see as ‘murder’ is ‘uterine homicide’. To take another example, when a person fails to provide sexual gratification to his or her partner, we do not call this an ‘act of adultery’ or ‘rape’. It is just that the act was not performed with the necessary ‘mens rea’. The same is true for abortion. In our society, many have also called abortion ‘murder’ because they don’t want to acknowledge the possibility of the state to involve itself in women’s health and their right to sexual autonomy.
For the law to be just, we need to allow the state to have a say in the acts of women and girls in the case of unwanted pregnancy. The best way to make laws acceptable and enforceable is to make provisions 3125841983
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