Bharatiya Nyaya Sanhita, still stuck in colonial era, fails women on abortion

At a recent event, Union Home Minister Amit Shah suggested that the approach contained in the three new criminal code bills was to “promote justice, rather than punishment”. He said that the three new laws have been drafted with a “completely new approach” and this would deliver criminal justice. This statement, however, is directly contradicted by the text of the three proposed bills in many areas, one of those being the continued criminalisation of abortion in India.

Clauses 86 to 90 of the Bharatiya Nyaya Sanhita (BNS) Bill deal with offences relating to causing miscarriage. These have been reproduced word-for-word from Sections 312 to 316 of the existing Indian Penal Code. These sections penalise anyone carrying out an abortion, even with the consent of the woman, unless such an abortion is necessary to save the life of the woman. The penalties are harsher if the woman is in a more advanced stage of pregnancy. The IPC is also very clear that a woman can be punished for causing miscarriage even if she has consented to one.

The word-for-word reproduction of the provisions of the IPC relating to abortion in the BNS Bill is baffling and at odds with societal needs in the context of criminal justice. Even as the Supreme Court of India has recognised that the right to privacy includes the right to bodily autonomy
(in the Justice Puttaswamy case decided in 2017), there is no acknowledgement either in the IPC or in the BNS of the idea of a pregnant woman having autonomy over her body.

Further, the IPC and the BNS continue to use archaic language, more suited to Victorian England, in the context of pregnancy instead of using more medically appropriate language. Even as modern medicine has understood better the different stages of development of the foetus, the IPC and the BNS continue to use the outdated term “quick with child” to describe a woman in an advanced stage of pregnancy.

There is also no acknowledgement in the BNS of the existence of the Medical Termination of Pregnancy Act, 1971, which liberalised, to an extent, the legal regime governing abortions in India. Medical termination of pregnancy, carried out by qualified and trained doctors, in accordance with the very specific mandate of the MTP Act is not considered a crime. The MTP Act also indicates where such a medical termination of pregnancy should be carried out and for what reasons.

Even though it was amended as recently as 2021, it does not provide a full and satisfactory legal regime for pregnant women who are seeking a safe abortion. One example of the problems with India’s law on abortion was seen recently in an appeal filed by a rape victim in the Supreme Court seeking an abortion after she was refused permission for an abortion by the Gujarat High Court. She had initially approached the Gujarat High Court as doctors had refused to carry out the abortion, but surprisingly, the Hight Court insisted that she carry the child to full term and delayed the matter for nearly two weeks. The Supreme Court criticised the conduct of the Gujarat HC in the matter and allowed the woman to get an abortion immediately. However, one has to ask the question, why is the Supreme Court’s or even a High Court’s intervention necessary for such a procedure?

This case was not a one-off. Every year, several women approach High Courts seeking abortion after being denied one by doctors or having crossed the time thresholds in the MTP Act for getting an abortion. In most cases, the courts do permit the abortion after being satisfied that they are medically safe for the woman. If most of these abortions were safe and not prohibited by law, the obvious question would arise, why are these women forced to approach the court for this purpose?

The answer lies in the fact that getting an abortion is still a criminal offence in India, even if it is being carried out as per the woman’s wishes and in a medically safe environment. Doctors hesitate to perform medical terminations of pregnancy in cases where the law is not very clear since a slight error in understanding the law would make them liable to criminal prosecution. Even if they are eventually acquitted, no one wants to face the rigours of criminal prosecution for just having done their job as a doctor.

The BNS Bill presented a great opportunity to decriminalise consensual abortions in India, acknowledging women’s right over their bodies and giving certainty to doctors on how to lawfully terminate pregnancies.

(The writer is co-founder, Vidhi Centre for Legal Policy)

(This is the sixth article in a DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)