~By Niveditha K Prasad
Introduction
The recently introduced Bharatiya Nyaya Sanhita, 2023 (‘BNS’) has been touted for introducing wide-scale changes in the penal statute. Disappointingly, the Bill, under Section 86 and the corresponding Explanation, retains the criminalisation of abortion. As I argue in this piece, the Section ought to be revised as the criminalisation of abortion has no basis in criminal law theory, particularly considering recent jurisprudence around constitutional morality. I specifically deal with legal moralism, a school of criminal law that most commonly is thought to justify penalisation of acts deemed “immoral”.
The Current Statutory Framework and its Implications
The IPC has a range of provisions against harm to ‘unborn children.’ §312 that criminalizes ‘causing miscarriage’ also criminalizes abortions. Its Explanation clearly indicates that persons who can be charged under the section include women who have aborted their foetus. The provision is also sweeping in that it does not recognise any difference between early or late abortions or instances where a woman has consented to it. The same provision, including the Explanation has been incorporated in the BNS without any change.
Little information is available about the number of persons who have been prosecuted for undergoing or facilitating an abortion. The National Crime Records Bureau’s Reports do not record the number of cases under §312. Yet, it is imperative that we focus on the statute despite its seeming redundancy. The provisions of the Medical Termination of Pregnancy Act (MTP Act), 1971 that allow abortions operate within a framework where criminalization is a rule. Consequently, doctors often deny abortion for fear of legal liability. This is despite the Supreme Court recognising that the MTP Act supersedes the IPC’s provisions. Further, the Section is being used by husbands to harass their wives for undergoing an abortion without their permission.
The rationale for the criminalization under the IPC is unclear. The Report on the IPC, which coded the criminalization, does not provide a clear justification. The preliminary concern of the members seems, in fact, to be the abuse of the provision that may stain the ‘honour of families.’ In the absence of a specific rationale for the provision under Indian law, we must look at general justifications provided for criminalizing abortions.
Hart explains the function of abortion law by distinguishing between its direct and indirect functions. The direct function of the law is to prevent persons from availing or performing abortions. As Hart explained by producing statistics about abortion incidence in the UK at the time, and as is found in India now, the law has largely failed in preventing abortion. The indirect function is to signal a general respect of the State and the community for the value and sanctity of life. This strongly imputes the law with a certain moral project requiring us to evaluate the framework that regards criminal law as a system of imposing moral values of various kinds. This closely relates with legal moralist school.
Abortion and the Morality Debate
The primary questions to be asked is what ‘wrong’ is being criminalized? Is it a moral wrong that can now receive legal scrutiny even if it violates an individual’s legal right? The ‘wrong’ in abortion is often expressed through moral values as mentioned above and is the subject of great debate. There are two primary arguments that are made to support the argument that abortion is a ‘wrong’: (a) that a foetus has rights from the time of conception as they have the potential for life and b) that their sentience based on viability of the foetus is sufficient reason to protect them from harms, such as abortion. The sum of the counter arguments is that (a) ordinarily, a thing is not provided the same moral value as its potential and (b) the granting of moral status based on viability is not based on a moral ethical principle but rather by technological advancements which is not a stable ground for basing a principled position against abortion. An extensive exploration of the moral debate on the subject is outside the scope of this article but the above summary establishes that the moral ‘wrong’ in abortion is deeply debated. Consequently, there is no legal presumption about abortion as a wrongdoing based on the idea that the foetus has the same rights as a living person. This is also the position in Indian abortion jurisprudence, as seen in Suchitra Srivastava and High Court on its Own Motion. Parliamentary debates also indicate a consensus that abortions should not be equated with a violation of a right to life.
Having established that the moral wrong in abortion is uncertain, we must consider the various strands of thought within legal moralism and evaluate whether the criminalization of abortion is justified within these paradigms.
Societal Disintegration and the Law: Devlin’s Legal Moralism
Lord Devlin argued that every society is based on a bunch of shared political, moral, and ethical ideas and without protecting these ideas, a society would simply disintegrate. The function of the law was to protect society against disintegration, accordingly, law ought to enforce these morals.
In the context of India, there are three possible objections that can be raised to the above formulation. First, in India, while it is true that a slim majority believe that abortion should be criminalised in all or most cases, a significant chunkcontends the exact opposite. Further, there is a stark difference among states; the majority in the Southern states are not opposed to abortion. These findings indicate there is no social consensus on whether an opposition to abortion is a ‘shared ideal.’ Second, there is an ‘empirical challenge’ to Devlin’s proposition. There is no evidence that the decriminalization or the non-criminalization of “shared ideals” will lead to the disintegration of society; it can hardly be claimed that the decriminalization of abortion in countries like Canada has jeopardized their societies. Third, the argument is further weakened by Devlin’s assertion that even if a society has not weakened by some apparent immoral acts, they still ought to be illegal simply because they breach the sanctity accorded to life.
Moorean Moralism and Liberty
Michael Moore deviates from the Harm Principle to argue that certain acts, like cruelty to animals, are to be criminalized even if they do not harm any person. This is based on the idea that all moral wrongs should be criminalized. However, Moore limits his principle by a ‘liberty constraint.’ He argues that there is a need for individuals to be free of statecoercion and criminalization should similarly not reduce citizen’s freedoms. This is substantiated based on the presumption that morality is degraded by employing coercion on persons. Logically then, this would extend to laws that prevent individuals from accessing abortion facilities and coercing them to carry a foetus to term and other individuals from providing such services. Therefore, within the Moorean legal moralist framework, there is a strong case against criminalizing abortion.
‘Modest’ Legal Moralism
Duff argues for a more ‘modest’ legal realism wherein the wrongfulness of specific conduct does not by itself provide reason for it to be criminalized and that only some kinds of moral wrongdoing are worthy of criminalization. To do so, Duff introduces a qualitative distinction such that only ‘public’ moral wrongs are criminalized. He suggests that there are three ‘gates’ to be passed before a conduct is criminalized within a legal moralist paradigm: first, the conduct must be wrongful, second, the wrongdoing must require a collective response from the public, and third, there must be good reason to make its wrongfulness salient in that collective response. While the first two gates provide a reason to criminalize, they are not sufficient and require the third prong as well. This is to ensure that there is a balancing of the need to punish a wrongdoer with the other costs of punishment and public censure. These other costs may not be able to justify criminalization but instead pave way for other methods of redressal.
This model holds particular relevance for the abortion situation in India. As explained above, that abortion is a ‘wrongful’ act is itself contested. Even if we concede that it is wrongful, the idea that it requires a collective response wherein a ‘perpetrator’ is called upon to publicly be accountable for their wrong is unclear on two grounds. The res publica include individuals who undergo abortion without necessarily attaching any moral turpitude to it. There is also strong evidence of the apparent ‘nullification’ of the law in India. The law provides that persons undergoing an abortion be publicly censured via the criminal justice system. However, this is hardly ever exercised as mentioned above and as evidenced by low prosecution levels. This may be due to a combination of both a general sympathy towards the persons who have genuine motives for availing abortion and the unsettled nature of the belief that abortions are immoral. The second gate is therefore, clearly not passed. Further, the third gate of balancing costs would prevent a legal moralist from arguing for the criminalization of abortion. While the state may have a reason to protect the sanctity of life by penalising an abortion, the state also needs to account for other concerns including the protection of women and gender minorities. As Jain points out, criminalization of any undesirable behaviour builds a general stigma against it and in the same way, abortion is forced ‘under an air of secrecy.’ Abortion services in the public sector is severely underfunded. As mentioned above, doctors are afraid of conducting abortions, fearing that a case does not fall within the conditions mentioned in the MTP Act. As a result, around 67% of Indian women and girls undergo unsafe abortions. Further, marginalized women from adivasi communities bear a disproportionate impact as private sector options are far more expensive. The result is that criminalization suffocates abortion access which in turn severely jeopardises women’s health. It is this author’s case that the disproportionate impact of the health and livelihoods of persons involved is not a cost that justifies continued criminalization out of a respect for the sanctity of life.
Constitutionalism and the criminal law
There is a further dimension to the idea of enforcing morality through the criminal law. Anthony Duff elsewhere argues that the criminal law ought to preoccupy itself only with values that are within a normative place. These normative valuesthat define a polity are often most authoritatively put down in the constitution. This is especially true for mala prohibitaoffences, like abortion, whose ‘wrongfulness’ outside of legal prohibition is unclear as explained above. The question that arises is what are the normative values, as evident from our Constitution, that the criminal law that should engage with and second, does the criminalization of abortion fall within this space?
The constitutional limits to criminal law as an institution for enforcing morality received its clearest enunciation in Justice Chandrachud’s opinion in Navtej Singh Johar v Union of India. A critical component of constitutional morality is that individual rights are not to be subject to ‘popular notions of society’ and that the guaranteeing of certain minimum rights are essential for an individual’s free existence. It was on these parameters that Section 377 was read down and a similar treatment can also lead to decriminalization of abortion. The values enshrined in the constitution would include the right to equality under Articles 14 and 15. It is evident that prohibitions on abortion access violates equality since it is based on gendered notions of the role of women in society. As Jain explains, §312 disproportionately burdens women and other persons who are denied abortion access, constituting indirect discrimination. Further, a general right to life under Article 21 is at stake, especially considering that self-determination regarding family and procreation has been empathetically brought under its ambit. The criminalization of abortion has a ‘chilling effect’ that restricts effective exercise of these rights. It becomes evident therefore, that the criminalization of abortion goes against the normative values ascribed in the Constitution, making it unwarranted.
Conclusion
As I have shown in this paper by considering important views within legal moralism, criminalizing abortion is unjustified and without theoretical foundation. Continued criminalization violates the fundamental rights of women and is not in sync with contemporary theoretical justifications in criminal law. The move should not just be towards relaxing the MTP Act’s stipulations but rather towards decriminalization. The BNS could have been an appropriate moment to scrap the archaic, if not unconstitutional provision but has failed to do so.
The author is a third-year student at National Law School of India University, Bengaluru