“It is her body. It’s her right” said Justice Sikri in a Symposium on Reproductive Rights
New Delhi, February 13th: Jindal Global University hosted a one-day symposium together with the Center for Reproductive Rights on ‘Reproductive Rights in Indian Courts: Celebrating Progress, Identifying Challenges and Discussing the Way Forward‘ at the India Habitat Centre, New Delhi on February 11th, 2017.
The symposium deliberated on judicial recognition of women’s reproductive rights as a fundamental right. Courts in India are increasingly being approached to seek remedies for violations of women’s reproductive rights in the context of preventable maternal mortality and denial of access to safe and legal abortion and other violations.
Prof (Dr) C Raj Kumar, Vice Chancellor, JGU, said, “We must make an assessment of what the court has done and celebrate the progress been made. Celebrating is not only an act of value judgment of what has happened, but also creates opportunities for us to assess in very critical ways the challenges in relation to the jurisprudence developed by the court in this area. Increasingly, the social expectations in relation to the role of courts in a number of policy related areas is a question of judgement that the courts have to review. The questions we have to address are to what extent is the law interpreting the constitution, legislation and are rights being upheld contributing to justice.”
While there is much to be celebrate as far as the Supreme Court’s judgements are concerned, there are times when the Court has made mistakes and I hope the Supreme Court corrects its mistake in the Kaushal case on section 377 IPC.
The symposium underscored the fact that over the years there have been several remarkable and path-breaking judicial verdicts upholding women’s reproductive rights as part of the ‘inalienable survival rights’ implicitly protected under the fundamental right to life, but a lot more needs to be done in this area, especially with regard to recognizing women’s rights to decision-making about pregnancy as essential for gender equality and ensuring that such decisions do not perpetuate discriminatory gender stereotypes or population control mindsets.
Speaking on the occasion Hon’ble Justice Arjan Kumar Sikri, Judge, Supreme Court of India, said, “When we talk of reproductive rights in this country, then there is hardly any choice so far as the woman is concerned. I can’t help but wonder how we as humans have failed humanity,”
Justice Sikri further said, “I am perplexed as to how in the 21st century, with all the technological advances, becoming frequent guests in the (outer) space and creating artificial intelligence, we are still not able to bring our women to enjoy the fruits of humanity. That is the harsh reality.”
“When we talk of reproductive rights in India, there again the choice is of the husband in the family or what the elders say…When there should be a child, whether that child should be male or female etc.,” he said.
“A woman’s choice to reproduce, abort or prevent pregnancy, deals with her body. It is she, who, by the virtue of her anatomy, undergoes the process eventually. It is her body. It’s her right,” he said, adding “the choice has to be hers.”
Speaking for women’s reproductive rights, Payal Shah, Senior Legal Advisor for Asia, Centre for Reproductive Rights stressed, “Women have the right to decide whether and when to become pregnant without coercion. In certain ground-breaking decisions, Indian courts have recognized women’s reproductive rights as fundamental and human rights, including the right to reproductive autonomy and survival of pregnancy and childbirth. Courts will continue to play an important role as women still rely on the judicial system to seek justice and uphold their human rights. Our hope is that courts build on these positive decisions and continue defend women’s human rights.”
Reflecting on 10 years of reproductive rights in Indian courts, Dr Colin Gonsalves, Senior Advocate, Supreme Court of India and Founder Director, Human Rights Law Network, stated, “Awareness is dawning, but there is a long way to go before women can actually assert their reproductive rights. Civil society needs to be made responsible to report back to the court about what is happening at the ground level to improve the implementation of laws. Reform of abortion laws are necessary to save lives of women. The framework of traditional law requires women to prove that their lives are in grave danger before being allowed to abort the fetus; India has a long way to catch up.”
Dr Mrinal Satish, Associate Professor of Law & Executive Director, Centre for Constitutional Law, Policy, and Governance, NLU shared his concerns on the gender stereotypes that prevail in our society saying, “The problem is with our approach to women’s rights. The articulation of rape as shame, and the fact that a victim’s testimony is not enough to prove rape are issues which need to be given a rethink.”
Dr Suchitra Dalvie, Coordinator, Asia Safe Abortion Partnership, Mumbai, emphasised on the limitations in women rights saying, “The mortality rate arising from abortions in India can be reduced if women have access to safe procedures. Sixty per cent abortion deaths occur due to low birthing spacing, and 28% because of the doctor’s incompetency.”
Focusing on the importance of education in promoting women’s rights, Prof Dr MP Singh, Chancellor, Central University of Haryana &Chair Professor, Centre for Comparative Law, NLU, Delhi said, “Reproductive Rights should be a part of the curriculum; discussions with the courts will build the relationship of the judicial system and academic institutions.”
Agreeing with him, Prof Dr Asha Bajpai, Professor of Law, Centre for Socio Legal Studies and Human Rights in the Law School, Rights and Constitutional Governance, TISS, Mumbai said, “Social laws will gain acceptability and importance if students are introduced to them at the college level. Many students are unaware of basic laws such as ‘Right to Education’. It is the duty of colleges to make them socially aware.”
Reflecting on the role of Academic Institutions in institutionalizing reproductive rights, Dipika Jain, Associate Professor and Executive Director, CHLET, JGLS said, “Law school and the Bar in India have a very important role to play in institutionalizing reproductive rights, rights of minorities and women’s rights by designing the law school curriculum in a way that Human Rights Law, Law and Poverty, Law and Caste, but most importantly clinical courses are mandatory courses. Further, students who want to take up social litigation and advocacy as a career should be given support both in terms of guidance, exposure and financial support.”
The symposium was a collaborative effort between Jindal Global University’s Centre for Health, Law and Ethics (CHLET) and the Centre for Reproductive Rights.
The panellists included legal luminaries, social and human rights activists and health professionals. Prominent participants who shared inputs and insights were Dipika Jain, Associate Professor, Associate Dean, & Executive Director, CHLET, JGLS, Sonipat; Edward Premdas, Director, Research and Advocacy, Centre for Health and Social Justice; Anubha Rastogi, Independent Legal Consultant: Sonali R, Centre for Reproductive Rights; Devika Biswas, Litigant & Activist; Adv Vikash Pankaj, Retainer Advocate, Human Rights Law Network & State Coordinator for the HRLN in Bihar; Thibault Weig, Senior Research Associate, CHLET, JGLS, Sonipat; Dr. Aparna Chandra, Assistant Professor, NLU; Adv Neha Rathi, Associate, Chambers of Mr Prashant Bhushan; Sarita Barpanda, Director, Reproductive Rights Initiative, HRLN; Adv Jayna Kothari, Partner, Ashira Law &Founder-Director, Center for Law and Policy Research, Bangalore; Adv Malavika Rajkotia, Rajkotia & Associates; Stella Paul, Freelance Journalist, Hyderabad; and Ajay Pandey, Associate Professor and Executive Director, JGLS, JGU, Sonipat.