This Article is written by Qamrush Zehra (Symbiosis Law School, Hyderabad. Symbiosis International Deemed, University)
“LISTEN TO THE PREGNANT WOMAN. VALUE HER. SHE VALUES THE LIFE GROWING INSIDE HER. LISTEN TO THE PREGNANT WOMAN, AND YOU CANNOT HELP BUT DEFEND HER RIGHT TO ABORTION.”
-Ayelet Waldman
INTRODUCTION:
The consequence of this was that she was impeached under the Comstock Act, 1914,[1] for her book on Limiting the Family. The scenario at the time was catastrophic when it came to a woman’s right to have an abortion. The world has moved on, but how far India and the Indian people have gone with their opinion and perspective on abortion is the question that is still left in ambiguity and is still moot. When discussing the status of women in India, it is necessary to mention the father of the nation and what he said during the time of India’s freedom struggle. Mahatma Gandhi thought that no national independence movement could have succeeded if a long and essential population had been retained. Not only did he seek to involve women in the freedom movement by helping them step out of their comfort region, but nevertheless he also condemned the legal handicaps that hindered women. [2] It is unfortunate that even after the many efforts of the government and so many educational programs, we continue to fail as a country and as an institution to stem gender issues and realize women’s rights.
ABORTION, MTP ACT, AND THE INDIAN CONSTITUTION
Before 1972, abortion was a punishable offence under the Indian Penal Code and was only allowed when necessary to save the mother’s life. Due to the restriction and severity imposed, this law has led to its violation in many cases. And the demand for liberalization for several years led to the formation of the Law on Medical Termination of Pregnancy in 1972. As soon as an unborn baby is in the womb, it is necessary to understand here that ‘it is part of a woman’s body., and if a woman does not have the right to her own body, then this is a total violation of the right to life and personal freedom guaranteed through the State beneath article 21 of the Constitution Indian.
- It should be noted here that our Constitution does not confer any specific right on the unborn child and can never be preceded by a woman’s fundamental right to elective abortion since it is she who must ultimately carry the weight of an undefined and the unborn child in her womb. The right to life and personal liberty offered by article 21 has a vast field of interpretation[3].
- This article alone has become an inexhaustible source of many rights.[4]Our courts have given this right a predominant place[5].
- The assertion that no one can be deprived of his life or personal liberty has been repeatedly cited with the approval of the Supreme Court[6]. Still, it has been interpreted as including the right to subsistence after some disputes.
- Another interpretation of article 21 suggests that the commission of rape violates the victim’s right to life which comprises the right to live with human self-respect.[7]The subject is difficult to understand why the clarification of the article cannot have the right to elective abortion, which is abortion at any time and by a woman’s choice.
- Among the different rights a woman has, deciding what should be inside her body and what is not is the most fundamental right, and the State should not take it away from her right away. The right to abortion is part of the right to privacy, recognized as the right to life. [8]
- The mother’s right to abortion cannot be exercised for the rights of an unborn child, which is not even a complete legal person.[9]Scientists have agreed that the fetal brain will be sufficiently developed to feel some pain after about twenty-six weeks, [10] so setting a twenty-week bar on termination of pregnancy is not even morally incorrect, but n also makes no scientific sense.
- In the Fifth and Fourteenth Alterations to the Composition of the United States, Liberty is extensive in scope and includes all freedoms. With a slight contrast, Article 21 of the Indian Constitution qualifies freedom as “personal,” It can be inferred that the scope of freedom in the Indian Constitution is narrower than that of the United States.
- However, this is not a problem concerning abortion because nothing can be as personal as abortion.
- This can be corroborated by the judgment in State of Maharashtra v. Madhukar Narayan Mardikar [16]. The Supreme Court has ruled that even a prostitute or a sexually available woman has a right to no one can take away her privacy andWhen you want to. Explaining once again the right to privacy in R. Rajagopal v. Tamil Nadu State, the court ruled that it is our fundamental right to be left alone and that a citizen has the right to protect his privacy, as well as the privacy of his family, procreation, motherhood, pregnancy, and education, among other issues.
- Words like procreation, motherhood, pregnancy mentioned here strongly support that it is a woman’s right whether or not she wants to procreate, whether she wants to be a mother or not, whether or not she wants to have a child. And also, a more restrictive interpretation of the right to privacy includes the right to abort. This clearly shows that section 3 (2) (b) of the Medical Termination of Pregnancy Act 1972, which executes a 20-week constraint on abortion, violates a woman’s fundamental right to self-abortion. have an abortion.
- Although an MTP bill has been proposed, this bill also focuses more on rescuing physicians/physicians from prosecution under section 312-316 of the Indian Penal Code of 1860, which refers to the illegal termination of pregnancy. Section 312 also covers a woman who miscarries herself, which is unreasonable as no mother would want to abort her baby without a social, financial, or moral reason. Include any legal person except the woman who has the fetus.
ABORTION AND PART OF BROADCASTING: LIBERTY AND FREEDOM OF SPEECH AND EXPRESSION
- In the circumstance of Maneka Gandhi v. Union of India, Judge Bhagwati concluded that the phrase “personal liberty in Article 21 has the broadest scope and covers a variety of rights that constitute the personal liberty of man. In addition to this, Mr. Tripathi, in his company “Spotlight on Constitutional Interpretation,” writes that the myriad aspects of personal freedom are impossible to list exhaustively.
- In-State of Maharashtra v. Prabhakar Pandurang, the court concluded that the right to personal liberty included the right to write a book and have it published and whether this constituted an obstacle to exercising this right without the authorization of the law, therefore violates article 21 of the Indian Constitution.
- Through these cases, the researcher wants to shed light on the power and freedom of the press and the media in our country. After the removal of Article 66A of the Law on Information Technology, which provided for a penalty for sending electronic mail or electronic message with the aim of disturbing and hindering or determining or inducing into error the recipient or recipient as to the origin of these messages, is disciplined with a sentence of up to three years and with the fine, social networks have become more courageous than ever and maybe the best way to express a point of view.
- The preamble to our Constitution talks about, among other things, freedom of thought, expression, belief, faith, and worship and, according to the researcher, after cutting India’s most brutal censorship law, the Supreme Court has opened up a vast avenue for the media to be the standard-bearer of new thoughts, opinions, views, reasoning, and logic. As human beings of reasonable intelligence, we must protect and preserve the rights of every citizen of this country.
- Article 19 (1), the right to freedom of speech and expression, confers the right to know, receive and disseminate information. Since the State must protect freedom of expression because it is the freedom guaranteed against the State, it becomes the duty of the State to protect the rights of the press. The media (including films) and a state cannot suppress a dramatic performance or any demonstration because of the threat of a hostile audience or the threat of violence.
- It is straightforward to explain why there is always a threat of violence when a new point of view is offered. Since the ancient Vedic period, abortion has been regarded as a social evil in India and is condemned in all religions practiced in India. Concerning women and men, the problem of gender issues is still thriving. We have seen in many instances how media processes help identify and repair loopholes in various acts and statutes. Indeed, recognizing the non-granting of abortion as a crime committed by the State is not a correct interpretation. Still, at least we know that it is an unfair and unreasonable restriction imposed by the State.
RECOMMENDATIONS
According to the author, just enacting brand-new laws, rules, and statutes isn’t the least bit an answer to the issues with relevancy abortion that have been pre-existing for hundreds of years. The execution is a part of it’s even to be taken into consideration. Also, it’s necessary to notice that ladies in need of abortion will obtain one whether safe or unsafe, so why not remove the upper gestation limit for the termination of pregnancy. It sounds like an extreme move or even one that neglects an unborn’s rights, but idealistically and constitutionally, it can’t be called wrong. Suppose the ownership of an unborn is taken into consideration. In that case, the govt’s bar of 20 weeks is set, which is subjected to judicial discretion, which ultimately varies in several cases and within the lights of the recent judgment of the Supreme Court.
The media has to be more persistent with its approach and should repeatedly reveal to people these problems with relevance MTP Act and should continuously keep it up rendering the Supreme Court decisions and make it available to the commonalities because the reach on social networks and media is far over the judgments of the courts. Also, the paid media must end because the country needs way more than regulated news. Our Constitution guarantees the true freedom of speech and expression, and it’s time everyone starts utilizing it for the betterment of society.
CONCLUSION
It cannot get simpler than this; if you’re against abortion, then don’t have one but don’t restrict others to avail what’s their fundamental right. No woman has miscarriage for fun, but no woman is answerable on why she wants to get rid of something from her body that can or might not turn into an entity. If put in numerous words isn’t even about the right to abortion, the stress must be not on the appropriate to abortion but on the relevant to privacy and right to reproductive control where the State’s involvement should be minimal. Hillary Clinton said that one cannot have maternal health deprived of reproductive health; it’s essential to always keep in mind that generative health includes contraception and birth prevention and access to legal and safe abortion. In keeping with the researcher, abortion is a very personal and intimate issue for a girl. Anyone opinionizing against abortion or trying to line a bar on the fundamental quantity before which she will abort is putting fetters of some fustian moral hearsay on her and considerably trespassing a lady’s right over her own physique, which comes underneath the realm of the right to life and private liberty. Media has got to play the role of a backbone, which always stands for the rights of pregnant women and should bring change within the opinion of the masses.
Bottom of Form
[1] United States Congress, enacted on March 3, 1873.
[2] Young India, (Oct. 17, 1929).
[3]Mahendra Pal Singh, V.N. Shukla Constitution of India, Twelfth Edition, Eastern Book Company.
[4]Menka Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597,620
[5]Kedar Singh v Union of India, (1989) 1 SCC 204: AIR 1989 SC 653
[6]Kharak Singh v. State of U.P., AIR 1963 SC 1295, 1301,1305; Sunil Batra v. Delhi Admn., (1978 4 SCC 494, Olga Tellis v Bombay Municipal Corporation., (1985) 3 SCC 545: AIR 1986 SC 180, 194
[7] Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490; Railway Board v. Chandrima Das (2000) 2 SCC 465: AIR 2000 SC 988
[8] Roe v Wade (1973) 410 US 113 (1973).
[9] Mary Anne Warren, “On the moral and legal status of abortion”, A fetus is not a person. All and only persons have full moral rights. A fetus, therefore, does not have full moral rights. Moreover, a woman’s right to protect her health, happiness, freedom and even her life, by termination of unwanted pregnancy, will always override whatever right to life it may be to appropriate to ascribe to a fetus, even a fully developed one.”
[10] See Clifford Grobstein, “Science and the unborn: choosing Human futures (Basic Books. 1988) p.13
