Abstract: The present paper revisits the parliamentary process of evolution of the Medical Termination of Pregnancy (MTP) Act, 1971 to understand the political imagination of a welfare state on reproductive rights and freedoms. The paper explores the political process of legalisation in the parliamentary democracy of India through analysing the debates in parliament while discussing Medical Termination of Pregnancy Bill. How did medicalisation of women’s health become a tool in the process of legalisation of abortions? What does it entail when a state leads legislative action to ‘protect women’ especially with a subscribed dominant ideology of Malthusianism? The paper argues that the legal journey from miscarriage to medical termination of pregnancy hardly captured the idea of women as equal rights-bearing citizens but considered them as child- bearing beneficiaries.
Keywords: abortion, Medical Termination of Pregnancy Act (MTP), medicalisation, legalisation, malthusianism, parliamentary debates, Ministry of Health and Family Planning (H&FP), Shah Committee Report, death/birth control
Most legal frameworks to protect women’s health suffer from paucity of understanding of structural barriers for women to access to health care facilities. The limitations of the legislative actions to protect women’s health can be visualised through four different perspectives.
Firstly, the total indifference towards causal linkages between poverty, inequality and health; secondly, insensitivity towards gender discrimination and exclusion; thirdly, treating all women as a homogenous group and missing the complex web of intersections of gender with class and caste and, lastly, how framework of biomedical regime influences formulation of laws related to general health. (Pandey 2014).
The present paper revisits the parliamentary process of evolution of the Medical Termination of Pregnancy (MTP) Act, 1971 to understand the political imagination of a welfare state on reproductive rights and freedoms. The paper explores through parliamentary debates at the time how, even in the absence of such a demand raised by early politically active women in India, medicalisation1 of women’s health influenced the political process of legalising abortions through Medical Termination of Pregnancy Bill, 1969-1971. It explains the subliminal issues that remain unexplored when the state leads legislative action to ‘protect women’ especially with a subscribed dominant ideology of Malthusianism. The paper has two sections that respectively deal with the historical experience and the context of legislating abortions in India and the analysis of parliamentary debates of MTP Act 1971.
The Historical Experiences of Legislating Abortion in India
Population growth became a crucial factor in the debates on economic and social development in the second decade of Independent India. Barring the Soviet model, the capitalist models of development and the so called mixed economies were ideologically married to Malthusian politics in their understanding of ‘limited resources’. While internationally, the feminists criticised liberalising abortion laws as it could be a double edged sword in the demographic context rather than uphold the reproductive freedom in a patriarchal society; in India it was hardly an issue. The colonial legacy extended even after independence and the legislative measures to bring the abortion law liberalisation in Britain in 1960s forced parliamentarians in India to think, especially in the context of nation building, of nationalisation and welfarism influenced by the values of modern ideas like ‘small families’ and emancipation of women (to a very limited extent).
Evolution of the Legislative Process
Central Family Planning Board of government of India on 25th August 1964 expressed some concern over the problem of abortion and recommended the appointment of a committee to examine all the aspects related to abortion. On 29th September 1964 Ministry of Health and Family Planning(H&FP) appointed a committee to study the question of legalising abortion headed by Shantilal H. Shah. The committee submitted its report in December 1966. The meeting of the policy making body under Ministry of H&FP called Central Family Planning Council, composed of health ministers of all the states and the comparable officers of Union Territories, representatives of concerned voluntary organisations2, was held on 7th October 1967 under the chairmanship of then Minister of H&FP, S. Chandrasekhar. It accepted the recommendation of the committee with certain amendments. After a consensus emerged between the ministry of law and the ministry of H&FP, a bill entitled, ‘The Medical Termination of Pregnancy Bill, 1969’ was finalised and introduced in the Upper House i.e. Rajya Sabha on 17th November 1969 by the union minister of H&FP. The members of the parliament unanimously agreed to study the matter in detail and recommended the constitution of a Joint Select Committee (JSC) of the parliament. The motion for reference of the Bill to JSC was moved in Rajya Sabha on 3rd December 1969 and was adopted in 8th December 1969. The Lower House i.e. Lok Sabha concurred the motion on 24th December 1969. The JSC of Parliament at the first sitting on 30 January 1970 decided to invite memoranda on the Bill from various organisations, associations and individuals interested in the subject matter of the Bill as well as inviting witnesses to give oral testimonies. The JSC had 19 sittings in 1970 and received 26 oral evidences and 21 memoranda from different individuals and organisations. (Rajya Sabha Secretariat,1970). Rajya Sabha passed Medical Termination of Pregnancy Act, 1971 on 27th May 1971 and Lok Sabha on 7th August 1971. The Act came into force on 1st April 1972. (Parliamentary Debates Lok Sabha and Rajya Sabha Secretariat, 1971)
The Unprepared Ground
The momentum created by the nationalist movement generated hope and optimism in India and that pacified the possibility of an active women’s movement in the early 1950s. Unlike other parts of the world, nationalist movement brought suffrage rights as part of Independent India without much struggles from women. Neera Desai observes: “In short, the immediate impact of political freedom was the generation of hope and confidence among women regarding their future. There was no need, it was felt by many, of an active women’s movement to press their demands” (Desai, 2008:23). Legislative participation of women leaders of nationalist movement in independent India did help to enact several legislations with seemingly progressive characteristics that established formal equality and aimed at removing social disabilities. However, all these plans, policies and programmes envisioned women as ‘beneficiaries’ of economic development but not as ‘active participants’ or ‘equal rights-bearing citizens’. Eventually the nature of economic development created a class of beneficiaries; urban centric, middle/upper class women. This section of women took an active role in building women’s movement in late seventies in India (Omvedt 2008).
Nivedita Menon gives the context of feminist debates on abortion in India.
In India the issue of abortion has entered the lexicon of feminist struggle through a very different trajectory from that followed in the West. Here, as in most poor countries, the pressure of population growth means that this “right” is not in question. Women, whose control over their lives and bodies is circumscribed in every possible way, nevertheless have the right to abortion on demand. The dominant ideology in, and about, countries such as India presents poverty as a function of a rising population. One consequence of this ideology is that family planning has became a central focus of governmental programmes for economic development (Menon, 1993: 105).
Malini Karkal observes the possible impact of liberalisation of abortion law in a patriarchal society like India.
An analysis of the Indian abortion situation shows that introduction of a liberal law where woman have little say in most matters and where there is no strong health education programme can only defeat the purpose of defending woman’s rights. And in a community where national programme encouraging smaller families are in full force, one can only expect a rising number of abortions resulting in hazards to women’s health (Karkal, 1991:230).
The main research questions asked by the academia in the area of legalising abortion in the context of India are different from that of western countries where the focus was mainly on the question of individual/ libertarian reproductive choice. In India the major concerns were: whether liberalisation of the law has made any impact to reduce the maternal mortality by reducing illegal (surely unsafe!) abortions and improve the health of women in India; role of legalisation of abortion in the national population control policies; quality of abortion services from both provider and beneficiary perspectives etc.
The process of bringing in a new law related to abortion when the social and cultural grounds were not prepared either to demand or to accept the law through the active involvement of movements or by the intervention of a welfare state is interesting to revisit. In this analysis, I basically rely on parliamentary debates in India to understand this process with a perspective that the matters related to reproduction in general and fertility control in particular must be understood as ‘historically determined’ and ‘socially organised’.
Parliamentary Debates on MTP Bill: 1961-1971
The committee constituted to study the question of legalisation of abortion tried to assess the extent of the problem and its effect on the individual and the society through a questionnaire3. This action could be considered as an effort to build a broad consensus among different interest groups4 and to create a ‘general will’.5 Through this process6 committee tried to get a better understanding on how to deal the resistance against legalising abortion and to make a judgment on possible quarters of resistances and the rationalities so that the law can be a one without any loopholes. When K. N. Tiwari asked in the Lok Sabha, “who demanded it” the minister could only explain the process in which the committee went through to accommodate various opinions.
Clearly, there was neither any demand nor strong opposition to the MTP Bill in parliament during the discussion. Irrespective of political position, most of the members supported the Bill with certain reservations based on their individual moralist notions influenced and informed by patriarchy. The debates clearly showed a concern for the health of women with a paternalistic view of control over female body. I would like to analyse the parliamentary debates based on three dominant arguments emerged through the discussions of the MTP Bill.
The ‘need’ for Medicalisation
Legality is defined in biomedical terms leading to a complete medicalisation of the legal procedure. This pushes all other indigenous/ locally available medical skills out of the purview of legality and criminalises all such practices based on customary knowledge base. The discussion in parliament clearly demonstrates a skepticism towards Dais and other traditional healers who were involved in providing abortion care. At the introduction of the Bill in Lok Sabha, minister of H&FP D. P Chatopadhyaya rearticulated the recommendations of the JSC as “to ensure the safety of the life of the pregnant women, the definition of the medical practitioners authorised to undertake this sort of delicate and risky operation has to be restricted. Any and every medical practitioner will not be allowed” (Lok Sabha Secretariat (LSS), 1971: 160)7. The discussion clearly defines medical practitioners as registered medical practitioners with experience and training in ‘modern allopathic medicine’. Till date, there are no sound databases on unsafe abortions within the legally prescribed biomedical domain or outside it despite the confidence of the introducers of the Bill.
The minister of H&FP in 1971 tried his level best to establish the humanitarian grounds by explaining situation of victimisation of women due to forcible sex (referred to as sexual acts). In the logic offered, there was no mention of maternal mortality due to unsafe abortions, rather the contraceptive failure was considered as one of the major health hazards for women in the introduction of the Bill in Lok Sabha.
Legalisation becomes synonymous with medicalisation when it came to the question of ‘safe abortion’. Members took similar positions here irrespective of their political affiliations, however, commonly influenced by the biomedical paradigm. On one hand MPs like S. P Bhattacharya, Communist Party of India (Marxist) (Uluberia) even quoted noted progressive biologist J.B.S Haldane to argue that medical science should benefit the poor. On the other hand S. M. Banerjee, Communist Party of India (Kanpur) clearly took a strong position for Bill to safeguard women from ‘medical quackery’.
But what is happening to the young girls in this country? They have to play into the hands of these quacks after they are raped by some people. Either they stake their life in the hands of the quacks or they take some medicine and die or they commit suicide by throwing themselves to the railway track (LSS,1971:170).
The argument from Lakshmikanthamma, Indian National Congress, (Khammam) tried to establishes the linkages between ‘illegal abortions’ (by non- allopathic practitioners) and maternal mortalities and morbidities.
…either legalise abortion or leave the fate of a woman in hands of the quacks because the medical practitioners refuse to undertake this because of fear of illegality. Then the women go to quacks where they are treated. Somebody said even they treat their dogs very carefully but not the lives and body of a woman who goes to these quacks. … Because of these quacks there is so much of mishandling of the whole thing…( LSS, 1971: 185,186).
How legalisation can address the social stigma of women to access and medical practitioners was discussed in a reductionist way.
…The second is that a number of women who become pregnant do not want it. There is a social stigma. They go to a medical practitioner. The legal remedy is not there. The medical practitioner cannot terminate the pregnancy. Therefore, this Bill ties to overcome some of those defects which prevent a medical man from undertaking remedy for the patient that comes to him. (Dr. Melkote,Telungana Praja Samiti, (Hyderabad) LSS, 1971:187).
The limited public health infrastructure of seventies and probably a push from the private providers through the Shah Committee interactions created clause 4 of the Bill8. This had generated serious concerns among the members about the lack of public sector facilities in the rural areas. To facilitate more abortions to conduct in a legitimised place, the Bill liberalised space to conduct abortion through clause 4(b) and S. M. Banerji disputed it.
I submit that it should not be provided for like that .After all it should be an approved place with some beds or a hospital with some beds and so on. Otherwise, it will be a mobile hospital and wherever they move and wherever they see that there is a chance of terminating pregnancy, they will convert that place to a hospital (LSS, 1971: 172).
This debate gives us an idea of support for the Bill and the inclusion and validation of private sector in Indian health legislation as an essential necessity to provide services offered through ostensibly ‘protectionist’ laws. In the process of drafting by the Shah Committee, private medical practitioners actively participated articulating their own interests. There was no machinery to regulate the private sector in India. It did not occur to most parliamentarians that involvement of profit making private sector could possibly hamper the interest of women, place them under social threat and physical risk and might also be exploitative. Thus, the ‘medical termination of pregnancy’ through the Bill in reality protected the interest of the registered medical practitioners rather the ‘women in desperation’. Debates revealed a seemingly protectionist law which viewed women only as objects of intervention. The unquestionable validation of new medical procedures (more technologically dependant) only helped the medical doctors to decriminalise their practices and flourish. This legal journey from miscarriage to medical termination brought a shift in the logic of state intervention and thus made abortion a private matter of consultation only between women and medical doctors without any interference from the government.
Malthusian Demography as a Decisive Factor
The parliamentary debates clearly indicate that there is an undercurrent of demographic reasoning in this legislation. The minister, while presenting the Bill in the Rajya Sabha, mentioned the social reason behind the legislation as ‘small family’. This is despite the fact that Shah Committee Report (1966) specifically warned that attributing demographic value to the legislation can act as counter- productive to the programmes on family planning. “Legislating abortions with a view of obtaining demographic results is unpractical and may even defeat the constructive and the positive practices of family planning than contraception” (Ministry of Health, 1966:.47). However the government pretended to balance the demographic implications of the law with that of safety of women to prevent maternal mortality due to unsafe abortions and portrayed it as secondary measure of birth control.
The legislation of abortion would be both a death control and a birth control measure. Death control in the sense that those who want abortion could obtain a safe one from a qualified surgeon in an approved clinic or hospital under aseptic conditions; birth control since as there appears to be a direct correlation between abortion and a declining birth rate, this measure would serve as another family planning method, particularly in cases where conventional contraceptive methods have failed, and contribute its share to solving the problem of high rate of population growth in India (Chandrasekhar, 1974:81).
Failure of a contraceptive device by a married couple for family planning- created heated debates in the parliament. S. M. Banerji called it irrational: “Pregnancy is pregnancy whether it is due to the failure of something or due to the success of something. Therefore I feel that this explanation is redundant and it should be deleted from this Bill”(LSS, 1971: 171). On the other hand J. M. Gowder, Dravida Munnetta Kazhakam, (Nilgiris) argued it is logically suitable from a family planning perspective. “We have been spending crores of rupees on Family Planning Programmes because of our unwarranted hesitancy in legalising abortion. We have been highly conservative in adopting such a law”(LSS, 1971: 176).
The Malthusian idea of linkages between poverty and the population growth is reflected in many of the speeches in both the houses.
In a country like India, where more than one crore families still cannot manage more than one meal a day and children couldn’t find even a drop of milk from their mother’s breasts. If a woman conceives despite of using all methods of contraception, in such context think about the consequence of the unborn child and the children already in the family and the family that has only one roti and ten people to eat (RudraPratap Singh, Indian National Congress (Brabamki), LSS, 1971:174). 9
Nowadays the people themselves feel the urgency and the necessity of having small family. In our country also the Government has now filled the vacuum by bringing forward this Bill…the prime aim of the Government is to concentrate their energies in economic activities to raise the standard of our people. The people have themselves voluntarily accepted family planning programmes enabling the Government to invigorate our sagging economy. (J. M. Gowder, LSS, 1971:176)
Mohan Rao observes the rationality of the understanding of linkage between poverty and population growth comes from ‘false, commonsensical, crude assumptions’. “Despite what is so frequently asserted as self-evident common sense, and therefore somehow true, there is no clearly understood link between population growth and economic development or indeed population growth and environment” (Rao 2004:3600). Prevalent prejudices and common sense are the dominant features of this debate in parliament and Mohan Rao cautions against it by emphasising, “it allows us to think of the world without the dangerous ideas of re-ordering a deeply unjust social order” (Ibid). MTP Bill debate is an example to see how a legislative process, even when it had an emancipatory potential, got sabotaged by a regressive malthusian ideology.
A Stand for ‘Progressive Credentials’ and ‘Modern Values’
There was an effort from the proponents of the Act to enhance its appeal to the progressive sections of the society by projecting its inherent character as ‘radical’ and identifying it as a ‘moment of departure from conventional values’. Chandrasekhar observes that there is a political, economic and social context to envisage such legislation. “The India today bears witness to changes which are unconventional and even radical. The whole process of economic development, involving rapid ushering in a new way of life affecting not only the economic and political but also social spheres of life”(Chandrasekhar 1974:83).
The tension between the ‘modern values’ and traditional structures of a patriarchal family is quite visible in the discussions in parliament. Chandrasekher’s work is an attempt to console those who are worried about westernisation and degrading traditional values in Indian society. “It would not be wise, even if it were possible to utilise modern science and technology for the economic betterment of our people and yet to preserve unchanged the traditional patterns of family organisation and life” (Chandrasekhar,1974:83).
The introduction of the Bill tried to create a sympathy and consensus among the members, since it was morally sensitive issue. The minister tried to appeal to the progressive credentials of the parliament members presumably to get the Bill passed. “I have no doubts that this enlightened House with its progressive outlook supports the Bill” (Ibid:162). He clearly demarcated the difference between internalisation and institutionalisation while enacting legislation. The categories of ‘conservative’, ‘too liberal’ and ‘radical’ were debated mainly in the context of placing unmarried and widowed women outside the scope of application of the ground of contraceptive failure’. The laws which are out of tune with the social realities are not really accepted and internalised by the people it can turn into a dead law; limited to the institutionalisation only. The minister’s introduction speech specifies it as :
…if we bring about more radical law not consistent with the demands of the people, while it goes on the people, while it goes on the book of statues it does not go home to the people to be practiced and followed (D. P. Chattopadhyaya, LSS, 1971:162).
The minister worried about the acceptance of the law and related it with the demand for law, although the demands are also formulated by the social realities which were not articulated for a regulation on abortion. To get the social acceptance on one hand the Bill was being depicted as progressive and radical on the other hand only as a minor legal change in penal code! .
Historically speaking this Bill means not much; it is only to liberalise some of the restrictions under section 312 of the IPC where it has been provided that termination of pregnancy relief would be available only to pregnant women in case it is necessary save their life… (Ibid: 159)
The language and way of introduction of the Bill clearly indicates the assumption that the society was not as yet ready to accept the idea of women’s liberation, as opposite to the experiences of the United States, European countries and in erstwhile Soviet Union in the articulation of demand for legislation. One of the members (S. P. Bhattacharyya) raised the point that “People in our country are deep in superstition. So, Government must see how they could really helped and their dignity saved. That is the main difficulty that Government must overcome, without harming their life or their prestige or anything”(LSS, 1971: 164). Dr. S. Chandrasekhar differs here:
Personally believes that any woman in India at any time should be able to obtain a legal abortion from a public or a private clinic without giving a reason… This may be a radical position for the present climate in India but it is high time that woman became their own masters. In an enlightened world there should be no need for them to suffer from ageless slavery of unwanted pregnancies. We have come a long way in emancipating our women but their emancipation cannot be complete unless we grant them the right not to have a baby they do not want… It is imperative that our society should consider a woman as full human being and not a mere human incubator (1974:89)
The hypocrisy of parliamentary members was criticised by Savithri Shyam, Indian National Congress (Amla) she highlighted that,
when it comes to progressive ideas in the West everybody will support it as part of advancement but if it is in our own country, we may try to avoid it with wearied reasons… I have studied the Bill. They have not given the statement of Objects and Reasons. When you are not clear in your mind, what will you say before the public? We have to go to the public. We have to make them understand the intention of the Bill. This ambiguity should go. It is not a play; it is a serious matter… The Bill should go in tune with the times. If you want to be radical, too radical ( LSS, 1971:170).
The adoption of progressive values in terms of small families was considered as ‘modern’. In the parliament there was an acceptance of the need for legislation among majority of the members yet there was a contradiction based the question whether the society is socially mature enough or culturally capable to accept the legal step. As Dr. Melkote observation reflects it,
In the present day world the norms of conduct have been tremendously changing. Ideas that existed a few generations back do not exist today. This Bill has brought before us the necessity for a change according to the changes that the social structure is undergoing now… This Bill I think should not be viewed as some sort of family planning measure; it has much more social significance than that. It reflects the attitude of the Government to the society which was changing. Therefore the Bill has to be viewed as how much it has bearing on our society so far as social, moral and other aspects are concerned. What would be the attitude of the Government in such a situation to the individual or society at a given circumstance? I am of the opinion that the Government should help every individual of the society to enable him going about such measures which will be beneficial to society and to the individual. Therefore government can do a lot by introducing such social measures acceptable to the people to achieve the desired goal (LSS, 1971:186,188) .
Very limited discussion happened to connect the process of legalisation with women’s right or choices. “The Bill declares the right of a women over her body and therefore I support this Bill and I hope the House will accept it” (Ibid:189).
The only opposition from Lok Sabha were from M. M. Joseph, Kerala Congress (Peerumade) based on religious belief.
I oppose it not only on my behalf but one behalf of my party- Kerala Congress. Keeping in the view the fact this Bill will destroy the great human values cherished by this country for the last thousands of years and also due to the fact that this Bill will mark the end of moral values, I view it as a grave challenge posed to the concept of greatness of human life (LSS, 1971:196).
Both M. M. Joseph and Muhammed Sheriff articulated the question of ‘when does life begin’ to support his argument and made the point that medical termination of pregnancy is virtually a murder.
I am afraid that the Prime Minister Shrimati Indira Gandhi – the model of the great Indian motherhood- will have to carry the foul smell of blood of lakhs of innocent children… I do not feel it is necessary to repeat the words of Gandhiji, the father of the nation, on the family planning. (Ibid: 198)
Another very important point to be borne in mind is that the liberation of abortions intended by the Bill will throw gratuitous temptation and inducement before the innocent and dear young ones, and thereby the moral fibre so necessary for nation-building will be sadly undermined. It is highly regrettable that the Government has not paid any heed to the powerful and cogent plea made in the Minutes of Dissent by several medical authorities of high ability and experience. I am convinced Sir, that this new measure will do immense harm to our nation and that it cannot, therefore, be supported. (Muhammed Sheriff, Indian Union Muslim League, Independent (Periakulam, LSS 1971:200))
The resistance to the Bill based on religious beliefs and the conservative and traditional moral values based on ‘Indian culture or way of life’ countered in the parliament by using same religious texts, values and logic.
Some people have objected to this Bill on the traditional grounds that it goes against Indian concept of life. I say that those who object to it have not fully understood the Indian culture”. Indian culture has never permitted such things which go against the society and the welfare of the human being. (Dr. Melkote, LSS, 1971: 188).
Both the opposition and the support of the Bill were informed by the logic of paternalism, seeing women as the victims of uncontrolled sexuality of men or as the sufferers of inappropriate abortion services. The conflict of interest based on religion did not get much importance during the discussion, since those voices were very meek and limited. The flourishing middle class aspiration of the time, to move from ‘tradition’ to ‘modern’ reflected clearly through marrying the idea of small families. The economic transformations and beginning of urban centric employment opportunities made convenient alteration to the patriarchal roles of women through the arrangement of small families. However never took the debates to the political imagination of emancipation of women by challenging the familial/ maternal roles rather considered women as beneficiaries of the law. The debate created a coating of modernity over the conventional Indian ideological position as against the west in terms of defining what is’ radical’.
The experiences of the process of legalisation and consequently the implementation of the law explain how MTP Act became a crucial instrument in the regressive Family Planning Programme in late seventies and eighties in India. The women who actually experienced vulnerabilities that were created by the multiple levels of discrimination (based on class- caste- ethnicity – region), did not get any “choices” to be exercised through the MTP Act, rather their bodies became another site of exploitation by the state. The simplistic and crude politics of Malthusian ideology made their lives even worse through this legislation.
The replacement of social solutions (through changes in social structures) with that of technological solutions is the undercurrent of parliamentary debates on MTP Act. The social reality and the historical reasons behind maternal moralities got overtaken by a technological solution of the intervention of trained biomedical practitioners in abortion care services. Was there a ‘felt need’ from any sections of the society other than the ministry of H&FP to repeal the colonial legislative measure of penalising and criminalising the practice of ‘miscarriage’?10 Even the choice of the naming of the Act as ‘Medical Termination of Pregnancy Act’ rather ‘Abortion Act’ specifies how the so called scientific nature technologies can be used as a weapon to avoid the resistances based on the patriarchal, social and religious perceptions.
The discussions on the legislative process of abortion cannot be a disjuncture from the reproductive politics. In other parts of the world, these discussions primarily challenged the notions of power and control in family, sexual and procreative role. But the experience from India is an exception. The question of reproductive autonomy remains un-articulated in the entire debate. The debates missed the understanding of history of abortion practices and state policies practiced in the pre- colonial and colonial India. How the social- economic and cultural conditions of different categories of women and the multiple levels of discriminations impact on the utilisation of the provisions created by the new law was not captured in the debates. The legal, moral and political battles on abortion around the world at the time did not factor in the debates in Indian parliament. The legislation came into force soon after the existence of second term of Indira Gandhi’s government with a single majority in parliament of 350 members and 43.68 vote shares. Even though abortion is a sensitive and diversified opinion generating topic, with different ideological standpoints, the resistance and dissent remained dormant within the debates in parliament. This is a reflection of the lack of a progressive agenda for women.
The legislative process and practices remained an instrument of perpetuation and validation of patriarchy in the context of India and MTP Act and became an example of intersection of exploitative structures, patriarchy and law. The debates clearly indicates that the law which deals with the health of women, is dominated by perceptions that consider them essentially as reproductive machines and is predictably protectionist. The political imagination of legislative process hardly captured the idea of women as equal rights-bearing citizens but considered them as child- bearing beneficiaries.
1 SAMA study refers Kleinman(1980) for articulate “Medicalisation refers to the process through which a given phenomenon becomes available to the medical gaze, is made intelligible within the framework of scientific explanatory model. medicalisation is a significant political, cultural
and economic process, which both reflects and produces power, and it needs to be understood with reference to India’s emergence as a ‘modern’ nation- state”(2007:21).
2 The names of these organisations are not available in the Report of Shah Committee
3 Dated 24th February, 1965 (No, 4-6/55- FPII)
4 The questionnaire had sent to responsible persons in various ministries of government of India, state governments, members of planning commission, members of parliament and state legislative assemblies, members of state and central planning board members. This had also sent to interested legal and medical professionals and political, social and religious organisations.
5 The committee got 507 responses from individuals and organisations consisting a major share of individuals from biomedical background (127 medical officers and interestingly 235 private physicians). Committee got 140 responses from voluntary and welfare associations, including Planned Parenthood and women’s groups. (Chandrasekhar, 1974:84)
6 Committee clearly asked the following questions like:” 1.4 Do you think married persons (a) who are not able successfully to practice birth control, and (b) others who do not practice birth control resort to illegal abortion? What age group of women resorts to illegal abortions and for what reasons? 2.8 Are you in favour of abortion being permitted in case of unmarried woman or widow generally? 2.10 In what cases would you consider making sterilisation compulsory after an induced abortion? 3.1 Do you consider that artificial abortion is a sin against society, religion and culture.
7 All other debates discussed in this paper is from August 2nd, 1971.
8 “No termination of pregnancy shall be made in accordance with this Act at any place other than-
- a hospital established or maintained by Government or
- a place for the time being approved for the purpose of this Act by Government”(LSS, 1971:171)
9 Translated from original speech in Hindi
10 See sections 312 to 316 of Indian Penal Code, 1860
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ARATHI P.M. After obtaining her Ph.D. from the centre of Social Medicine and Community Health, Jawaharlal Nehru University, she joined the Council for Social Development, New Delhi, and is an associate Fellow. Her Ph.D. was titled Gendered Bodies, Medicine and Law: A Study of Selected Caselaws from India. Her M.Phil. dissertation was on the preliminary analysis of the legitimising process of abortion in selected countries of South Asia. She has done her Masters in Law with health care laws as specialisation. Her post doctoral academic work and publications covers the areas of public health laws, the politics of Reproductive Technologies, the Social Determinants of Health and the Regional Modernity of Kerala. She works closely with movements like People’s Health Movement, Medico-Friend circle and AIDWA.