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| Home / College Guide / Women’s emancipation or population control? Why was abortion legalised in India |
| Posted on Saturday, July 02 @ 00:00:05 PDT |
[Adrija Roychowdhury] | New Delhi |
Updated: July 2, 2022 10:36:49 am
The history of abortion rights in India is traced back to the Medical Termination of Pregnancy Act of 1971 (MTPA). It is often regarded as a landmark moment in India’s social legislation, opening the doors, as many would say, to social reform. The passage of the MTPA as early as the 1970s is frequently pitted against the West wherein abortion rights continue to remain a debated issue. The politics surrounding the Act, however, shows that it was less a product of the women’s movement in India and more of a means to control the expanding population of the country. The Act’s wording and the arguments made in its favour remains heavily criticised by Indian feminists.
Colonial discourse on criminalisation of abortion
The legalisation of abortion in the 20th century is in sharp contrast to the attitudes towards the issue in 19th century colonial India. Historian Indira Chowdhury in her article ‘Delivering the ‘murdered child’: Infanticide, abortion and contraception in Colonia India’ (2006) cites the negative attitudes towards abortion among the 19th century European medical fraternity who blamed it on the lack of morality among Indians.
In the words of Allan Webb who was professor of Descriptive and Surgical Anatomy at Calcutta Medical College:
“Perhaps, no country on earth has immolated so many new-born infants as India, nor has any race of mankind more generally practiced the abominable act of murdering children when yet in the womb of the mother. The art of producing abortion and all its long trail of evils, at once subverting both the order of nature and the end of being, is but too openly practiced even now. Whilst the strong arm of a humane government has done much to cleanse the land from the foul strain of child murder, it has not been able to reach this more common and secret practise of abortion.”
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Yet another instance of similar analysis of abortions in India, cited by Chowdhury is that of Norman Chevers, who was secretary to the medical board in Fort William, Calcutta. In a manual written in 1856, Chevers noted the vigilant control of Hindu society over the conduct of its women, particularly with regard to the prohibition of widow remarriage, resulted in too many abortions.
The colonial discourse of the lack of morality among Indians found a response among the nationalists who claimed that while in India there was a glorious past, it had been corrupted by the presence of colonialism.
In their attempt to address the issue the British, in 1860, added Act XIV to the Indian Penal Code with sections 312-318 criminalising abortion. Section 315 criminalised any “act done with intent to prevent a child being born alive or to cause it to die after birth. Section 316 noted that “causing death to a quick unborn child by an act amounting to culpable homicide.”
Population control discourse in the 20th century
By the third decade of the 20th century there emerged a narrative, both among the Indian elite and in the international discourse, of India being an overpopulated country. Historian Matthew Connelly in his article, ‘Population control in India: Prologue to the Emergency period’ (2006) notes, “Westerners preferred to make an example of India when developing their own theories and deriving lessons for policy.”
“In the 1920s, when American and British authors began to warn of a ‘Rising tide of colour’, India was once again the most oft-cited example- even though there was not yet any evidence that its population was growing rapidly,” he adds. By the 1930s, birth control activists in the west such as Margaret Higgins Sanger were focused on opening birth control clinics in India.
Chowdhury in her article notes that in these early years of India’s population control experiments, abortion was rarely prescribed as the existing penal code prohibited it. Moreover, the focus of population control remained exclusively upon family as a reproductive unit. “Abortion was viewed mainly as the termination of an illicit and illegitimate pregnancy that was often the plight of unmarried women and widows and hardly found place within this (family planning) discourse,” she writes.
Similar caution against abortion was maintained by birth control activists from the west as well. Sanger, for instance, spoke of birth control in a radio talk in 1935 as a “means to prevent” and “not to destroy”. She reiterated to her listeners that by birth control she did not mean to interfere with life after it had begun.
Legalising abortion
The question of legalising abortion was first raised at the International Conference of Planned Parenthood in Bombay in 1952. The argument in favour of decriminalising abortion was woven around the fact that there was a need to offer the same in safe and scientific terms. HS Mehta, who argued in favour of abortion said the legislation would allow qualified doctors to offer it scientifically.
There was also the issue of population control that had a role to play. In 1964 the Indian Parliamentary and Scientific Committee under the chairmanship of Lal Bahadur Shastri proposed that abortion be allowed as a remedy for the failure of contraceptives.
In September 1964 the government set up the Shantilal Shah Committee to review the issue of abortions across the country and recommend if at all a law was required. “The Committee toured the country for two or three years and realised that a lot of women with unwanted pregnancies were using unsafe methods and therefore dying. They proposed to the government that there was a requirement to liberalise abortions outside of the Indian Penal Code,” says Dr Suchitra Dalvie, Consultant Gynaecologist and Coordinator, Asia Safe Abortion Partnership.
In 1967, the Shah Committee report was sent to all the states for their comments. While most of the states opted for the bill or remained silent, the only opposition came from the DMK government in Tamil Nadu.
On November 17, 1969, the draft bill of MTPA was introduced in the Rajya Sabha by S Chandrashekhar, who was the then minister of health, and DP Chattopadhyay, who was the deputy minister of health.
Savitri Chattopadhyay in a 1974 article in the Journal of the Indian Law Institute writes, “it is interesting to note that while the initiative for the MTPA came from a family planning organisation, the government and the ruling Congress party have consistently defended the bill as a piece of social legislation to emancipate women.” She observes that both Chandrashekhar and Chattopadhyay persistently denied that it was to be a measure to control population. “The depth of the opposition which these ministers had to overcome is indicated by the fact that even among the doctors interviewed in West Bengal, 25 per cent were opposed to the bill,” writes Chattopadhyay. A few doctors were also of the opinion that the Ford Foundation in America was behind the scheme. Given the social mores of the time, it was perhaps realised that the bill would be better accepted as a tool for liberating women.
Once in the Parliament, most political parties did not take any formal position for or against the bill. The Congress party was in full support of the bill.
Chattopadhyay who introduced the bill in 1971 defended it by observing that four million induced abortions take place every year and that the ‘swadharma’ must be in accordance with the ‘yugadharma’ or spirit of society.
He was supported by other Congress members such as GS Malkote, Bishwanarayan Shastri, and Mukul Banerjee.
One voice of opposition came from Jana Sangh member Man Singh Verma, who argued that the MTPA would disrupt the society “leading to more corruption and more sex crimes” (as quoted by Savitri Chattopadhya). He held that birth control must be through self control and that while women were the worst sufferers in Indian society, the MTPA would not lead to their emancipation.
Some members of the Kerala Congress too opposed the bill, even though the party did not take a formal stand on it. MM Joseph, who was member of the Lok Sabha from Peerumedur, described abortion as virtually “murder”.
The Communist Party-Marxist (CPM) opposed the bill on the grounds that it appeared ‘half-hearted’ in nature and proof of the ruling party’s hypocrisy. Member of the party AP Chatterjee instead called for the complete recognition of women’s rights, her decision to terminate pregnancy without consent from any guardian or meeting with any conditions laid out in the bill.
The opposition from the various fronts, however, could not endanger the passage of the bill given the strength of the Congress in both Houses of the Parliament.
The MTPA stated that “pregnancy may be terminated by a registered medical practitioner, where the length of the pregnancy does not exceed twenty weeks.” The conditions put forward included “the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.”
Further the Act that termination of pregnancy can be obtained if “any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy” or “where any pregnancy is alleged by the pregnant woman to have been caused by rape.”
The amendment made to the MTPA in 2021 raised the upper limit for abortion from 20 to 24 weeks for rape survivors, incest victims and certain other categories of women such as disabled and minors.
The wording of the act has been heavily criticised by feminist organisations and women’s health groups. “The problem is that all the conditions in the Act are not determined by the pregnant person but by the doctor,” says Dalvie.
“So all the power is still in the hands of the doctor and not the woman.” Dalvie also points out to the fact that the amendment has increased the upper limit to 24 weeks for some women who are considered victims. “But if abortion is safe after 24 weeks then it must be available to all. Otherwise it is a way of saying that if one got pregnant consensually, then they will be punished.”
Further reading:
Indira Chowdhury, “Delhivering the ‘murdered child’: Infanticide, abortion, and contraception in colonial India” in Science and the Raj: A study of British India , Oxford University Press, 2006
Savithri Chattopadhyay, Medical Termination Of Pregnancy Act, 1971: A Study of the Legislative Process , Journal of the Indian Law, 1974
Geetanjali Gangoli, Reproduction, Abortion and Women’s health , Social Scientist, 1998
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