An intriguing absence of outrage
For all the contrasts that might be drawn between American and Indian politics, one of the sharpest could be the differing role that abortion plays in the two systems. The United States is, of course, famously obsessed with abortion – leading to perennial political brawls when it is time to choose new government officials. In India, on the other hand, politicians appear generally indifferent to the subject. Why is this so?
This Indian apathy or ambivalence towards abortion holds true through the pre- and post-Independence period till the present day. During the colonial period, discussions of abortion appeared occasionally in the writings of Indian social critics, but only in order to draw attention to its perceived relation with a social 'evil'. Tarabai Shinde, the late-19th century Marathi woman who rallied against gender norms, cited abortion as evidence of men's hypocritical sexual moralities. Another Marathi writer, the iconoclast and educationalist Jotirao Phule, viewed abortion as an outcome of unjust gender and caste practices. "These [widower] Arya brahmans unashamedly make advances on the weak defenceless widows in their household and greedily seduce them," he wrote. "When these widows become pregnant they are forced to abort. This is quite a common practice." Vidyasagar, a contemporary of Phule's in Bengal, voiced similar complaints. However, while identifying abortion with some social problem, these writers and other public intellectuals of their time seem to have done little to explore the morality concerning the subject, or whether a foetus should be considered 'alive'.
Modern Indian law is based on the colonial Indian Penal Code (IPC), originally drafted in 1837 and enacted in the early-1860s. After 1947, IPC sections 312-316 remained in effect, which detailed criminal penalties and terms of imprisonment for both persons who perform and women who receive abortions. But in 1971, the Indian Parliament passed the Medical Termination of Pregnancy (MTP) bill, which effectively legalised abortion by creating loopholes in the event of birth control failure or maternal mental distress. Government records suggest that this shift in the abortion legal framework came about in response to legal trends in other countries and, more importantly, from concerns about overpopulation.
In any event, comments by several members of Parliament at the time indicated that there had been little legal enforcement of abortion penalties for decades and that the 1971 change in policy was fairly uncontroversial. One parliamentarian cited the figure of 6.5 million annual abortions in India in the years leading up to the law's amendment. A member of the Rajya Sabha lamented that the bill had "not received the publicity it deserves." Indeed, although committees in both houses had mulled the legislation's provisions since its 1969 introduction, the Rajya Sabha debated the MTP bill for only two days and the Lok Sabha for only one.
In the years since 1971, abortion has remained on the fringe of Indian public awareness – occasionally popping up in policy debates and discussions of public morality, but almost always indirectly. Significant discussion has taken place, for instance, about the use of amniocentesis (used to determine a foetus's gender) in procuring sex-selective abortions in North India. While a 2004 census report on skewed child gender ratios in several North Indian states provoked the most recent round of op-ed debates on the topic, participants again did not concern themselves with discussions of the morality of abortion. It is also noteworthy that Hindutva-leaning politicians, despite voicing concerns about the alleged growth of the Muslim community in India, have taken no dramatic steps to curtail Hindu women's access to abortion facilities. This stands in stark contrast to 19th century America, for instance, where Protestant beliefs about the 'prodigious' reproductive habits of Catholic immigrants contributed to a tightening of abortion laws in order to 'preserve' the Anglo-Saxon population.
The near-absence of rigorous intellectual exploration of abortion by Indian social thinkers and politicians is mirrored in contemporary scholarship. While there are a handful of scholarly articles on the history of abortion and abortion law in India by historians such as Supriya Guha and Ranajit Guha, most writing on the subject is limited to studies of population policy. Feminist historians in particular have done important studies on topics at the intersection of colonial law, gender and social power – particularly sati, widow remarriage, female infanticide, and age of consent. But despite the conviction of hundreds of Indian women in colonial courts under abortion penal provisions, there has been little scholarly interest in the topic as a whole. The Sanskrit scholar Julius Lipner, in an article on classical Hindu views of abortion, argues that "issues relating to the moral status of the unborn and abortion have neither been aired or even properly identified, in general, in Indian minds and literature."
Subject for speculation
Based solely on their respective foundational texts, it is somewhat ironic that modern-day Hindus are less concerned with abortion than are many non-Indian Christians and Muslims. After all, the Christian Bible contains no references to abortion; official Christian interest in the practice dates largely to the 19th century, when the development of modern medicine allowed for the procedure to be conducted in the open and made subject to regulation. For its part, Islamic tradition contains some explicitly permissive commentary on abortion. Several hadith attributed to the Prophet Mohammed state that a foetus is 'ensouled' – and thus gains personhood – only after around 120 days of development. In some Islamic traditions, early-term abortion was subsequently permitted.
On the other hand, Lipner points out that Hindu tradition was relatively clear in its prohibition of abortion. Based on condemnatory references to abortion in both shruti and smriti texts, Lipner writes that between 600 BC and 600 CE, "the definitive Hindu view on the moral status of the unborn in connection with abortion was developed and established." Still, while some classical religious texts may have condemned the practice, it is nearly impossible to reconstruct the actual operation of pre-modern law throughout the Subcontinent – notwithstanding Jotirao Phule's assertion that there had been no abortion during the Vedic age.
However, we do know that in the mid-eighteenth century, when the East India Company displaced the remnants of the Mughal state in Bengal, abortion, along with adultery, was punishable as a moral offence. The Company instituted a new judicial system in Bengal in 1772, three decades before the criminalisation of abortion in England. Two legal principles could have influenced Company attitudes towards abortion in the 18th century. On the one hand, the Company initially desired to dissociate itself from moral regulation; on the other hand, it wanted to claim the sole legitimate right to take life. Hence, seeing abortion as a question of sexual morality would lead to non-regulation, whereas seeing abortion as a matter of life-taking could lead to prohibition.
This distinction, while neat in theoretical terms, allows for only the most general understanding of English and Indian attitudes during the era. Initially, in 1772, the Company decided to do away with the Mughal system of penalties for offences against morality, including those for abortion. This would appear to suggest that, to the English administrative mind of the early 1770s (at least insofar as it thought appropriate for eastern India), abortion was more an issue of morality than of murder. In time, however, the Company reinstated penalties for abortion, adultery and other 'moral crimes' – apparently in response to fears that Indians would see Company rule as immoral and, hence, undesirable.
More importantly, because the Company initially condoned sati, and then backed its way into regulating widow immolation before instituting a legal ban in 1829, the desire to create a state that enjoyed a monopoly over the taking of life was unrealised in the early years of colonial rule. Regardless, it is largely impossible to discern 18th century Indian and English attitudes towards abortion with any precision. "An interesting subject of speculation," the historian Radhika Singha writes, "is whether abortion and infanticide were considered heinous in themselves or investigated in the community for the proof they gave of the more disgraceful offence of prohibited relationships."
Control of reproduction
Indian attitudes towards abortion in the early modern period can be further discerned by considering the broader contexts of reproductive and birth practices and their interactions with the law. Here, the most obvious parallel is infanticide. Colonial officials commented on female infanticide among certain North Indian caste groups as early as the late 18th century, although the most concentrated administrative effort to combat the problem did not come until a century later. (Colonial officials in South India reported that sex-selective infanticide did not occur there.) In any event, the similarity between infanticide and abortion is only general: How far will public morality and state power go to protect forms of life that may not be deemed to possess personhood?
19th century female infanticide can be seen as a precursor to late 20th century sex-selective abortion. In places like present-day Haryana, where around two in five female foetuses are aborted, amniocentesis has simply taken the place of examining a child's reproductive organs at birth. If the classical religious prohibition on abortion identified by Julius Lipner appears at odds with contemporary popular morality, a better place to trace modern notions of foetal life is 19th century North India. It should come as no surprise that the Indian Penal Code sections on infanticide follow immediately after those on abortion, or that some colonial administrators did not bother to distinguish between the practices in judicial reports.
The history of sati regulation also provides some guidance on Indian conceptions of foetal life. At the insistence of socio-religious reformer Rammohan Roy, the English banned sati in 1829. Just two decades earlier, however, the British had issued circulars calling for the prevention of the burning of specifically pregnant widows. Thus, at least formally, regardless of whether the foetus itself was considered a person, its mere existence could determine the life or death of its mother during the second decade of the 19th century. According to this peculiar bureaucratic logic, the foetus depended on its mother for survival no less than the mother depended on the foetus for hers. While it is difficult to determine how often pregnancy actually won a widow respite from the pyre, the recognition of a pregnant woman's special status signified the (potential) human value of the foetus.
More commonly, of course, abortion was simply another tool to control reproduction. For a young woman – widowed at an early age, dependent on in-laws, not permitted by law or social custom to remarry – a pregnancy stemming from either a consensual or non-consensual sexual encounter could have had devastating social consequences. Given the relative lack of freedom of, say, high-caste women in northern and eastern India, particularly later in the 19th century, the morality of terminating foetal life needs to be weighed against the social consequences of the pregnancy for the woman and potential child. By aborting the foetus, a mother could, in a sense, 'undo' the pregnancy – erasing the evidence of the sexual act that had led to it, and escape society's vehement disapproval. While recognising the immense diversity in social practices throughout India, and hence the impossibility of calibrating with exactness the tension between the moral value of a foetus and the social consequences of an unwanted pregnancy, it seems that moral investment in foetal life was limited by the oftentimes harsh social realities of illegitimacy and poverty.
A non-controversy
Even while formal colonialism ended in 1947, the Indian Penal Code remains the foundation of noted Indian law. In 1948, the noted sociologist M N Srinivas spent a year in a small village in modern-day Karnataka. In his memoir, he narrates a confrontation between an abandoned pregnant woman and a village powerbroker, who "advised her against going to an abortionist but she said she had no alternative. She left us soon after." Srinivas writes that the powerbroker "found her story and her life revolting," but there is no indication that anyone in the incident knew or cared that abortion was formally illegal.
Srinivas's research coincided with the holocaust of Partition, in which thousands of women were abducted by men from both in and out of their native religious communities. In 1948, the newly independent Indian and Pakistani states agreed to conduct an 'exchange' of women abducted after March 1947, when the first widespread violence had been reported in the Punjab.
Recent studies by activist-writers Urvashi Butalia, Ritu Menon and Kamla Bhasin show that the Indian state provided – against its own laws – abortions to many of the women 'recovered' from Pakistan. Administering abortions to women brought back to India, sometimes against their will, is probably the first example of state-led family planning in India.
By the early 1970s, abortion was frequently discussed as a procedure to be carried out in government hospitals, in part in order to control population growth. In the 1971 parliamentary debates on the MTP bill, speakers addressed questions involving women's autonomy over their bodies, and, less commonly, the moral implications of a legal regime that sanctioned abortion. Most of the time, however, the legislative debate tied abortion to symbolic props like 'progress' and 'religion', whose importance would supposedly either be affirmed or debased by the bill's passage.
"Many other countries in the world have already passed the Bill legalising abortion," one MP noted in support of the legislation. An opponent declared that it would "destroy the great human values cherished by this country for the last thousands of years and also … will mark the end of all moral values." Several speakers referred to scenes from the Mahabharta to demonstrate the alleged moral damage caused by abortion, but the opponents primarily chose to denounce abortion as running counter to a general, undefined Indian tradition. Regardless, with the Congress party's support, the bill passed easily.
Why is the moral dilemma over abortion not a subject of public debate in India? The 1990s witnessed the swift rise of a socially conservative, religiously grounded political formation, which would seem to have laid the groundwork for a cultural battle on the issue. Indeed, two decades earlier, the handful of opponents to the MTP bill had come from the ranks of the Jan Sangh, the predecessor of the Bharatiya Janata Party. Leaders of the Hindu right often voice concern over the alleged proportional decline of Hindus in India, and the Hindutva movement has demonstrated its power to control women. Considering these factors, it would seem logical if abortion were currently a symbolic issue as important to the Hindu right-wing as temple construction in Ayodhya – as much of a flashpoint issue in India as it is in the US and elsewhere.
But the fact is that the rise of the Hindu right has not led to any surge towards fighting abortion. The reasons behind this non-concern could be two-fold. First, the country's legislation was instituted on a resoundingly solid basis. India liberalised its abortion law only two years before the US did, but the MTP bill overwhelmingly passed a Parliament full of Congressmen, Communists, Socialists and Jan Sangh politicians. No one could claim that a court had acted arbitrarily or against the democratic consensus, as is still being argued in the US by opponents hoping to have the legislation overturned. In India, the democratic process had done its work.
But why were so many politicians willing to support the bill in the first place? The second part of this explanation involves the special significance of population anxiety in Indian politics. Although the 1971 passage of the MTP bill was a few years before the coercive family planning policies of Indira Gandhi's Emergency, it still took place at a time when controlling population growth had become a central concern of the Indian state. Because the prevailing attitude largely associated population growth with economic weakness and social backwardness, the desire for Hindu reproductive strength was diminished by a fear of reproduction itself. Regardless of ideology, those involved in the 1971 debate argued that population growth should be reduced – so how could anyone oppose a measure that would likely lead to exactly such a reduction? In the realm of private morality, a politician might resolutely reject the idea that his wife or daughter would ever exercise their right to abortion. Simultaneously, however, he could hope that other women in similar situations would be able to make exactly that choice.
~ Andrew Nash recently earned a Masters in modern history from Jawaharlal Nehru University, Delhi, and is presently a law student at Washington University, USA.