Good afternoon everyone.
A warm welcome on behalf of
CommonHealth and CREA.
My name is Rupsa Mallik
and I am the Director Programmes and Innovation at CREA
CREA as most of you know
is a feminist human rights organisation.
We are based in New Delhi
We have completed 20 years this year
and we primarily work at the intersection
of gender, sexuality and rights.
CommonHealth and CREA just for
you’ll to know why this collaboration
for almost 6 years, I would say
if not a little more
We’ve been collaborating jointly on a programme
to advance safe abortion in India,
which has included running an annual institute
called the Abortion, Gender and Rights Institute.
And also supporting strategy
to take forward the work in various states in India.
I think before I handover to Alka to talk a bit about
both the background and context
for this webinar series,
I just wanted to flag
that we are living in unusual times.
I think the COVID 19 pandemic and the restrictions…
I don’t like the word lockdown…
and the impact we have been seeing
on people’s lives.
I think more than ever starkly shows us
the levels of marginalisation, discrimination and stigmas
that hundreds and millions of people face in India.
And more importantly I think
from the point of view of the work that some of us do
on sexual and reproductive health and rights,
I think there is growing evidence today
of the kind of impact
that the epidemic and the response is
having on just every day needs of people
to access sexual and reproductive healthcare.
I think it’s against this backdrop
we are having this conversation.
Once again a very warm welcome
on behalf of CommonHealth and CREA.
We are very thankful that you all could make the time
to join us for this webinar.
I am going to hand it over to Alka.
Dr Alka Barua is the abortion thematic lead at CommonHealth
and she has many decades of experience
as an independent consultant and researcher
in looking at some of these issues.
Alka is going to be sharing…
sort of laying the context and background
for this webinar series.
Over to you Alka.
Thank you Rupsa.
Before we get into the actual presentations
I will talk in very brief about the context
of these three webinars.
This is the first one of the series
and as Rupsa said,
it’s co-hosted by CommonHealth and CREA.
In case there would be some people
who wouldn’t know about CommonHealth…
CommonHealth is a coalition
of about 300 odd members,
30 institutional, 270 individual
and 30 plus institutional members
from more than 20 states. It was launched in 2006.
The vision of CommonHealth is to have a society
that ensures the right to highest attainable standard
of Sexual and Reproductive Health for all,
especially those from marginalised communities.
And to achieve this vision,
a range of activities are undertaken at CommonHealth.
Such as capacity building
and discourse influencing workshops
for different groups of stakeholders,
We are involved in building and
disseminating relevant evidence
and information amongst members.
We support facilitate and mentor advocacy,
right from grassroots up to the national level
and there is an attempt to influence discourse
and provide thought leadership.
Though CommonHealth’s vision talks about
sexual and reproductive health,
its focus has largely been on maternal health
and safe abortion.
In fact many of its founder members are those
who are known for their work in this field
and the coalition has been involved
on the issue of safe abortion since its inception in 2006.
And the activities that it has taken up
is of course evidence building.
We have worked recently with four states
Bihar, Tamil Nadu, Gujarat and Uttar Pradesh.
We have published fact sheets,
reports, blogs, monographs.
We have conducted training
and capacity building workshops,
in partnership with CREA, which Rupsa talked about.
We conduct meetings, workshops,
consultations on range of issues
related to access, gender, sex selection
and safe abortion
and are involved in advocacy
and using women’s rights discourse
and creating a common ground agenda for activists.
Based on its one and a half decade of work,
some of the reflections that the
CommonHealth members came up with
are that though abortion is perceived as legal,
in reality listed conditions under the act
are exceptions to prosecution
under the Indian Penal Code
and a woman in India still cannot decide
for herself to have an abortion.
Also MTP Act, along with other laws and acts,
can be and is increasingly used to
prevent access to safe abortion services.
While amendments like the current one
which was passed in the Lok Sabha
are forward looking to some extent,
evidence shows that legal grounds alone do not
help women access safe and affordable services.
So we wondered whether it is time
to take the discussion beyond amendments
to the MTP Act and change the narrative
to women’s right to safe abortion
and perhaps even decriminalisation of abortion services.
With this in mind we had organised a meeting
on the 9th of December 2019 in Mumbai.
Before I go into the issues which came up,
there was a consensus...
this was a meeting of select group of people
who have worked a lot in this area.
And the consensus at this meeting was
there is a need for compiling evidence
and conducting deeper analysis of the overall ecosystem
and come up with a common framework
and language within the twin track
of legalisation and decriminalisation
which perhaps the lawyers who
are going to take the next sessions
will talk about in greater detail over the three webinars.
The key issues that came up at this particular meeting was
Are amendments to the existing act,
the answer to all the barriers
to safe abortion that are currently there?
And would legalisation or act with amendments
continue to give control to the state
and nurture an atmosphere for exploitative processes?
Is decriminalisation of abortion
the answer to the prevailing barriers?
But if we follow that path, is there a possibility of it
leading to alienation of other groups and movements
such as the disability groups or the PCPNDT Activists?
And the most critical one,
is the country ready for the right
to abortion and decriminalisation
given its social fabric and prevailing political atmosphere?
If not, what are the alternatives to respond
to the ever-increasing barriers?
With this in mind we had scheduled another meeting
with a larger group of allied and partner organisations,
activists and cross movement members
in partnership with CREA...
and for obvious reasons that did not take place
so we came up with these three webinars.
So the objectives of these webinars are
to bring together the partners
and allied cross movement members
to arrive at a broad based and common
understanding of decriminalisation.
What should be the form?
Should it be unconditional?
Should it be reading down of the Act?
Or should it be something between
legalisation and decriminalisation?
And what would be the implications
for access to services as well as safe abortion rights
or whatever form we decide on.
And to discuss advocacy strategies
for that particular form of decriminalisation
within the existing political, social
and legal landscape in the country.
So these were the objectives of this meeting.
Thank you.
Thank you Alka.
I think I’m just going to do a short,
very brief introduction to the first webinar.
The first one we really thought it was important
that when we begin to have this discussion
on decriminalisation of abortion in India,
and as Alka already alluded to in her presentation,
a number of things I think that need
some sort of consensus building
and some sort of coming together
to build a common understanding amongst ourselves.
For us I think many people who worked
on the issue of safe abortion,
I think for decades the imperative
and I think the approach was driven
very much from a public health perspective.
And even though there has been
a very broad base set of actors
who’ve driven that and have as a result
ensured access to safe abortion.
I think there’s been also considerable work,
even though it has not really translated
into a number of amendments,
but there has been considerable work
again by the same actors
to address the issue of legalisation
and particularly within the current legal framework
of the Medical Termination of Pregnancy Act.
But I think what we observed,
both CommonHealth and CREA
and I would think all of you,
that there has in the last years
been a growing body of thinking,
agreement among a diverse set of people,
many of who are on this call and webinar,
on the need to really deeply think through and engage
in a much more nuanced way, ideas of decriminalisation.
And I think what Alka talked about –
what does the twin track approach
to legalisation and decriminalisation look like?
Is it at all going to be a twin track approach
or how do we need to approach
the ideas of decriminalisation?
So this particular webinar, the first one,
really attempts to unpack some of those issues
and we also wanted to look outwards to other movements
who have many more decades of deep engagement,
often successfully, to address the issue of decriminalisation
faced by their constituencies and communities.
So without speaking more...
I am going to invite our first speaker.
Dipika Jain is a professor of Law,
Vice Dean, Research.
And Executive Director
of the Centre for Health Law Ethics and Technology
at the Jindal Global Law School.
And Dipika is going to start us off
by sharing her insights
and providing sort of a context,
a historical context,
of the criminalisation of abortion in India.
And some of the subsequent reforms.
So over to you Dipika.
Thank you Rupsa, Alka and Suchitra
for organising this webinar.
I am glad to be here.
What I am going to do is,
I am going to lay out the legal framework
for abortion in India, both historically,
colonial legislation and the post-colonial legislation
that was subsequently enacted in 1971.
So I’m going to just take you through these two legislations
and then talk about some of the contradictions
when it comes to Supreme Court jurisprudence and abortion.
So abortion is largely,
as Alka was stating in her presentation,
it’s largely a criminal offence under the IPC.
Now what is India Penal Code?
So, Indian Penal Code is enacted in 1860
by the colonial government.
And it’s a comprehensive criminal code
that covers all aspects of substantive criminal law.
Now this regulates not only sexual conduct
perceived as violent,
but anything that was conceded divergent
from the mainstream heteronormative framework.
For example, forms of sexuality
that were not rooted in formal alliances
like same sex relationships, sex work,
adultery or even control of women’s sexuality,
which is abortion etc.
So now the law of abortion in India
is primarily governed by Section 312 to 316
of the Indian Penal Code.
The Section 312 and to some extent 313
criminalises the act of “miscarriage”.
So this provision never uses the word “abortion”.
What is does is it criminalises the act of “miscarriage”
where the woman undertaking the abortion
as well as the doctor facilitating the abortion
are liable to be prosecuted.
And the prosecution ranges from
3-7 years of imprisonment and fine.
So that is criminal law framework.
Now such provisions and criminal law one may argue,
may be required to address situations
where a woman’s pregnancy is terminated
due to intentional bodily harm,
domestic violence, medical negligence.
However, when failing to make a distinction
between the termination of wanted and unwanted pregnancies,
the law makes it extremely challenging
for women to access abortion.
So then, post-colonial India, after 1950’s-60’s
the Government of India start considering reforms on abortion.
The Shantilal Shah Committee report in about 1965
deliberated on this issue and
recommended liberalisation of abortion in India
and the reason cited for this liberalisation framework
was to put an end to unsafe
or illegal abortion taking place in India
which are largely the cause for
the high maternal mortality rates.
However if you look at the document carefully
or even look at some of the legislative debates
around the legislation,
we know that the main rationale was population control.
So it wasn’t really a rights based legislation as such.
Moving forward in 1971,
the Medical Termination of Pregnancy (MTP) Act was enacted
as an exception to the Indian Penal Code.
To exempt medical practitioners from criminal liability.
So what this means is that the criminal provisions remain.
The 312 to 316 remain,
but as an exception to protect the doctor from prosecution
and to allow abortion in certain circumstances,
this legislation was enacted.
So it’s not a rights based legislation,
it does not talk about right to abortion,
it doesn’t talk about right of women
in the entire abortion framework.
Now the conditions that the doctors had to follow
in order to exempt themselves
from criminal liability are the following:
Number one...
if there is a grave risk,
to the woman’s mental and physical health
including trauma of unwanted pregnancy
for rape survivors
or pregnancies of married women
due to failure of contraception methods –
that is when a doctor can perform an abortion.
The second is when the fetus has several abnormalities.
So you can see from these two rationales
that the legislation was not rights based at all.
What it was based on was a patriarchal,
heteronormative and eugenics rationale.
Now arguably, any termination of pregnancy
that does not fall within the rigourous confines
of this very provision,
Section 3 and Section 5 of the MTP,
deem to be a criminal offence.
I’m not going to go into the details of MTP.
Anubha is going to do that, the second speaker.
But what I’m going to do now is just outline reasons
why criminalisation produces chilling effect
on the exercise of reproductive autonomy.
So criminalisation of abortion harms women,
girls, gender diverse people in several ways.
First, it is a major legal barrier to access to safe abortion.
It has been well documented
that banning or restricting abortion
does not eliminate demand,
it only eliminates access to safe abortion.
Resultantly, in fact, unsafe abortion remains
one of the major causes of maternal mortality globally.
Number two, criminalisation allows stigma to run rampant
as the (indistinct)
...continues to be cloaked under
and air of secrecy and criminality.
The taboos surrounding abortion
have a great impact on women’s health,
plays significant role in their decision
on whether to have a safe or unsafe abortion
and whether to disclose the abortion to others.
Combined, all of this produces a chilling effect
on reproductive autonomy.
So there is a need to rethink
criminalisation of abortion in India.
Now what is the legal framework
as far as the criminal law and
the enabling legislation 1971 is concerned?
Now what has happened is very interestingly,
post 2000, the Supreme Court of India...
actually there are a bunch of cases
where Supreme Court of India
has recognised abortion and reproductive rights
within the fundamental rights framework.
So the first case was the 2009 case of Suchitra Shrivastav.
The Supreme Court expressed very clearly that reproductive rights
include the right to procreate or restrain from procreation.
So that was one of the first articulation
of autonomy and bodily autonomy
and choice in reproductive rights
within article 21 of the Constitution of India.
Subsequently, in 2017, in a landmark case of Puttaswamy,
a nine judge bench decision,
the Supreme Court recognised right to privacy
as a fundamental right.
And included within its scope the bodily integrity,
reproductive choice and decisional autonomy of people
who want to exercise reproductive choices.
So while the Supreme Court has created a framework
of reproductive choice and reproductive autonomy,
I would argue that largely this has been limited
to the privacy framework
but has not yet articulated the link between
gender equality and reproductive autonomy.
However in 2018, there are two significant cases
which do that for us.
The Navtej Johar case and the Joseph Shine case.
These are the two cases.
The first one that decriminalised same sex relationship
and the second one that decriminalised adultery.
Now these two case logs,
if you read them together with Puttaswamy,
they unpack the notion of sexual autonomy
and its link to reproductive autonomy.
In these decisions the supreme court articulates
how the right to privacy and the right to equality
and non-discrimination
on the basis of sex and gender come together
to Create an obligation of the state
to eliminate laws that serve as barrier to health care access
to eliminate laws that serve as barrier to health care access
and reflect discriminatory gender stereotyped behavior.
and reflect discriminatory gender stereotyped behavior.
These are in my opinion, transformative case law
These are in my opinion, transformative case law
that create a very strong rights based framework
that create a very strong rights based framework
that create a very strong rights based framework
for reproductive autonomy in India and
for reproductive autonomy in India and
also make a case for decriminalisation.
I’ll stop here and we can discuss more
during questions and discussions.
Thank you
Thank you Dipika.
So I’ll quickly hand it over to Anubha.
But I will introduce her.
Anubha is a Mumbai based lawyer
and she has been part of the campaign advisory group
of the Pratigya Campaign for safe abortion.
And she’s going to be taking it forward from Dipika
and grounding her presentation a bit more specifically
on looking at the current legal framework and the MTP Act.
Over to you Anubha.
Hi Rupsa, thanks.
Thank you Dipika for setting out the basis of this conversation.
So what I will be speaking about today,
is more or less about what has happened in the past
and what’s happening currently to expand
the existing legal framework to seek legal and safe abortions.
And then how does that really impact,
or does it impact the conversation
around decriminalisation of abortion in India?
I’m going to move with the presumption that most of us here
today in this conversation are aware of what the MTP Act is
and what are the reasons that it lays down
in which termination of pregnancy is permitted,
till what time etc.
I’m not going to go into that at this point at all.
What I’m going to definitely touch upon
is some of the litigation that has happened around this.
Especially in terms of, say since, June of 2016,
and there is a Pratigya Report on that also,
where there was this sudden influx of cases
that were being filed in the Supreme Court
where women who were pregnant
and then did not want to continue with the pregnancy
and they were beyond the 20 week cut off,
were approaching the Supreme Court for permission
to terminate the pregnancies.
So there are 21 such cases that went to the Supreme Court,
and there were some yeses, some nos
and I won’t get into that
– that report is available on the Pratigya website.
And then finally the Supreme Court said
you please go to your High Court
and then there were about 173 cases
in the High Courts that were filed and heard
and orders were passed till about April of 2019.
We are currently in Pratigya tracking it
from May 2019 till April 2020
and I can already tell you that we have crossed
more than 200 cases in the span of a year.
So we are analysing those to understand how many yeses,
how many nos and what the courts have been saying.
But the point of laying that down right at the beginning
was also to bring home the fact that
there is now already a lot of conversation that is happening
around access to abortion.
And some of those cases which went to court
also gained a lot of media and public attention.
Like the ten year old girl,
like the HIV positive woman who then passed away.
But a compensation was granted to her
because the High Court had not acted within time.
So there is already a lot of conversation
that’s taking place around
access to abortion and even though the law,
the MTP Act, came in 1971,
for a large portion of time people did not know
that this was legal.
And that brings me to…
what does it mean when we say its legal?
When we keep saying that
abortion in this country is legal,
but abortion is not a right.
And like Dipika has already pointed out that
there is the IPC which makes
causing miscarriage of a woman an offence.
And then from the IPC there are exceptions,
which are carved out in the MTP Act.
And its only in those circumstances,
which the MTP Act is talking about,
is the termination of pregnancy legal.
Otherwise its illegal and falls within
the realm of the criminal law,
that is the Indian Penal Code.
So when we are looking at very specific reasons -
why a termination of pregnancy,
how a termination of pregnancy,
where a termination of pregnancy can be done
and by whom.
If there is a movement in any of those
and you violate any of those conditions laid down,
then it becomes an offence.
So while we say that abortion is legal in this country,
its legal in some conditions.
So unless you fall within the categories
that the Section 3 of the MTP Act provides,
without that it is an offence.
Whether prosecutions have actually taken place
under the IPC,
that I don’t think we still have that number.
It’s not a number that the NCRB Data captures specifically
and my understanding is that
a lot of those cases would be tagged with other offences,
maybe domestic violence, maybe rape.
So it’s not something that is specifically
or on its own getting prosecuted.
I don’t know whether that’s a good thing or bad.
But there is no reliable statistic as of right now
on whether the 312 to 316 are actually being used,
whether violations of the MTP Act
are actually being prosecuted or not.
So at this point in time in this country,
abortion is legalised.
But when we say decriminalised,
what does that mean?
To put it in very very simple terms,
it means removing any criminal sanctions that are there
on accessing abortion
and you are ensuring that your legal system
is not punishing anyone for providing a safe abortion.
So obviously if there is mental negligence
or if it’s a forced abortion,
if it’s without the consent of the pregnant person,
then all of that in any case falls
within the realm of the criminal law.
Even the wording of 312 to 316,
the sections which deal with causing miscarriage
do differentiate between
where the offence has alleged to be done
without the consent of the woman
and with the consent of the woman
and it looks at that in different degrees.
So that distinction is already made.
So one is not saying that
when we are talking about decriminalisation,
and I am already saying this out here because
there is usually a lot of conversation on this
that we get back,
that we don’t know what kind of negligence can be caused
when women will approach anyone
for terminating their pregnancy.
But the fact remains that if it’s done in a manner
which is criminally negligent,
if it is done where it is being forced upon the pregnant person,
then obviously it is an offence.
So nobody is saying no to that.
Where we are insisting that it needs to be relooked,
it needs to be read down
is where we are saying that the woman herself
the pregnant person itself
is also likely to become an offender,
is likely to be prosecuted.
And in the manner in which access to abortion currently is,
where a lot of times,
girls and women are able to access
medical abortion pills on their own
or on prescription or by paying a heavy fee for it.
They are likely to be prosecuted under Section 312
where it clearly says that where a woman is causing
miscarriage upon herself,
then she is also liable.
So it is specifically when we are talking about decriminalisation,
we are saying that you need to ensure that the law is
not making a person who is seeking abortion a criminal.
And is not making a person
who is providing safe abortion a criminal.
And that there is no police investigation or any such thing
that gets involved or that begins.
And you treat abortion like any other health care procedure.
So like any other health care procedure you would ensure
that there are norms and there are regulations.
Not all health care procedures have laws in our country,
which are impacting them.
In fact childbirth there is no law,
but abortion there is a law.
So, like Dipika set out the context,
it speaks volumes of where we have really got this from
and whether its practical to continue something like this.
The insistence on decriminalisation, like I said before,
is to ensure that in no way the pregnant person
and the provider of a safe abortion
is under the threat of any kind of prosecution.
One can even have this conversation when you are talking about
situations like the implementation of the PCPNDT Act,
implementation of POCSO etc.
So it’s not an either or.
Let me put that out right here
and of course I’m sure there will be some questions on that.
But it’s not an either or,
that either you will be criminalised
or you will have the implementation of the PCPNDT Act.
All of that can go hand in hand together.
So it’s not necessary for one to say that
if we are talking about decriminalisation,
doctors and health professionals would do just about anything
and we will end up in a situation right before 1971.
The reason why the MTP Act came into existence
is where there were all these incomplete abortions
that doctors were dealing with.
Women doing stuff themselves etc.
I think it needs to be contextualised in today’s context
when there is so much technology,
there is so much information
and there is some amount of access.
So why should law be an impediment?
to something that otherwise does not need to be monitored,
to be regulated
unless the intention of course is to regulate sexual behavior.
I’ll stop here and we can look at questions.
We do have some questions that have already come on the chat box.
I would request others if you could use
the raise hand function to raise hands
and I will call out.
Vinoj has this question and I know Aparna’s also responding,
but Vinoj maybe you could ask your question
and Dipika can respond
and others are also welcome to indicate
if they want to come in and add to that.
So Vinoj please go ahead.
I was kind of curious to see how frequent
has the clause of the IPC been applied.
The reason I ask this is to get a sense of
how much it is there but also to weigh in the risk,
given the huge amount of abortion self-care happening,
many of our conversations,
advocacy around self-care, decriminalisation,
will it lead to unintended consequences?
So that’s the reason for my question from both perspectives.
Dipika, do you want to take that?
Yeah, hi. I’ll take the first half
and Anubha can take the second part.
Vinoj’s question – this is one of the most common questions.
That how many times has criminal law been used?
When we did our research there was only one case we found
where there was supposed to be a prosecution because,
actually there is protection under Section 8 of the MTP
which says if the doctor administers abortion in good faith
then there is protection.
But there was one case where there was failure
to establish good faith.
But I think the larger point of any provision that has criminalisation,
is the larger fear that it instills in the practitioners.
For example there are two things here,
Number one, the MTP is not based from the woman’s perspective.
It is not on woman’s will or request.
The abortion is at the behest of the doctor.
So what happens is, if there is any doubt,
any kind of doubt that the doctor is facing,
what will happen is because the responsibility is of the doctor,
and there is a criminal provision looming over him,
there is going to be a lot of caution on the behest of the doctor.
If the MTP was from the woman’s perspective,
it would have been different
because then the doctor would have had no liability,
it was her choice to have an abortion.
So that is one aspect.
But secondly, it’s not important how many times,
and I think Arvind will cover this in his presentation.
How many times the provision has been used,
but how it causes chilling effect on the current practices.
That is what the problem with criminal law is.
And this is just one part
and Anubha may cover some aspects of POCSO.
So the combination of MTP,
the Criminal Law and the IPC
and PCPNDT plus POCSO results in huge chilling effect.
And we know that there are so many doctors
who refuse to perform abortion in second trimester
because of these fears.
So there is a complicated web of legal,
criminalisation framework,
which leads to these kinds of complications and chilling effect.
Anubha, do you want to add anything
to the second part of the question?
So of course in the chat box one can see that
Aparna Chandra has shared some of the data
that she is aware of.
I was not aware of the NCRB data here.
So there is of course that.
But of course I would go with what Dipika said,
that it doesn’t really matter how many cases were done.
And secondly, the point that I would like to emphasise
which I did speak about is that
just because it is, we’re thinking about asking,
or the conversation is beginning about
reading down certain portions of the law
which are making the woman liable
for causing miscarriage to herself.
It will not in any way impact the standard that
any health professional is expected to maintain,
is bound to maintain,
while carrying out any medical procedure.
Be it abortion or anything else.
The fact that you can still be criminally liable for negligence
or there could be a civil liability
on you under the Consumer Protection Act that still remains.
But where is the need to then have this
extra sword hanging on
not only the provider but also the woman.
And we are seeing that in POCSO.
We don’t know at this point
how many cases have actually been done where
mandatory reporting has not been done,
by a doctor for example.
But we know the effect of that.
We know that so many
RMPS’s refuse to now provide legal abortion,
legal termination of pregnancy
to a girl who is below 18 years old.
So just the fact that it exists in the law book,
whether it’s being used or not,
has its own impact and has an impact
where the only person
who is really paying the price in a sense
is that pregnant person and no one else.
I know Aparna is making some important points in the chat.
Aparna do you want to just come in briefly
and maybe share some of the things you have been writing
just to supplement
what Dipika and Anubha have been saying?
And then I’ll answer the next question.
Absolutely!
I just wanted to make a couple of points.
One is NCRB actually has been tracking
in the last few years at least,
some of these abortion related provisions.
Unfortunately what it is doing,
and I think that goes to Dipika’s point about
clubbing all of this together
being a way to regulate women’s sexuality,
is that it clubs together
miscarriage with the woman’s consent
and those without her consent.
So we don’t know what the breakup there is.
But just to get a sense of volume,
there are about 2500 cases
that the police investigated in 2018
and about half of them,
they couldn’t find any evidence
so they had to file a closure report.
So the case didn’t proceed beyond the investigation stage.
That’s just to get a sense of volume,
of course as Dipika and Anubha have both mentioned,
its more the chilling effect consequence
rather than the actual prosecution
that’s the problem.
I just wanted to make an additional point,
that there are other laws
that impose a range of civil consequences
on abortion for the woman.
I think the biggest in that is in matrimonial laws,
where there are many cases
which have cited abortion at the woman’s behest
without taking her husband’s approval
as cruelty and therefore as a grounds for divorce.
Now in other context, the Supreme Court has been said that
a woman can decide freely
on whether she wants an abortion or not
and this is not a decision that her spouse has a say in,
but not in the context of divorce.
So what many doctors have told us,
is that they also fear,
that if they provide abortion services to a woman,
they will be dragged into court in a divorce proceeding.
So there is a range of these laws
that apart from criminal consequences
also impose civil consequences,
on the woman and as a result bring her service provider
into the legal framework and into the net of legal process
which people want to avoid.
That creates additional disincentives and additional barriers
for the woman getting access to abortion.
Thanks Aparna.
Vinoj I can see your hand up.
Is it specifically in response to Dipika
and Anubha’s comments in which case
maybe you can come in.
And then I’ll turn to the other people.
Yeah I’ll keep this brief.
I think Aparna’s point is very important in this whole thing
on how do we frame this decriminalisation.
I agree with all of you saying
that we are really looking at this…
from making it ...
insulating women from any challenges
of the legality of them accessing their right.
That’s the focus.
So given that, when we look at decriminalisation,
should we look at the other laws also
which put a restriction to them exercising?
MTP will play a big role but are there other acts,
other practices of law that impact this?
Thank you Vinoj.
I’ll go to you Dr. Manisha
We have been now, both Anubha’s presentation…
we are talking about decriminalisation
and hoping to do a lot of advocacy
We are talking a lot about decriminalisation
with a view to protecting women,
improving access etc.
but if you look at the acceptability by the government,
if you look at the scenario over the years.
There are a whole lot of quacks and unsafe abortion providers
operating in our country
and if this regulatory landscape is diluted,
then actually we are exposing our women to more risks
because like they operated before,
they will do the same thing for monetary benefits.
And this would also include those who do perform
second trimester abortion which are sex selective.
Another category here is the pharmacists who
dispense medical abortion pills over the counter
and though we say that
sometimes that's a harm reduction strategy in a way
where women at least have access,
but I’m just going on a bit to the negative side
though I do support the decriminalisation.
But there are two three issues
which I just wanted to point out.
Thankyou Dr. Manisha.
Does anybody else have any other questions, comments?
Otherwise I’m going to let Dipika and Anubha come back in
if they want to just make some concluding remarks
and we’ll move on to the next set of presentations.
Does anybody else wants to ask anything else?
Adsa, do you want to come in and ask your question?
I was just wondering…
This is a question to both Dipika and Anubha.
If in the process of their engagement on this issue from legal
and also engaging with health providers
and looking at both the sectors,
if there have happened to chance upon
or are they are aware of any reviews
being done on the transaction…
or basically the orientation of doctors,
the providers they are saying of abortion..
on these IPC sections,
which we are saying is sending a chilling effect…
because it decriminalises…
Do any of you want to come in Anubha or Dipika?
I think I would like to take
Dr. Manisha’s comment or question first.
See you know like I said even when I was explaining,
what we are at least talking about at this point,
and I don’t know if it’s going to get expanded or not
and I think that’s the reason why we are all
in this conversation trying to understand
what this really means…
when we are saying decriminalisation
does that mean we need to throw out the MTP Act?
I don’t know that at this point in time.
But what we are definitely saying is that the
woman not should be criminally liable.
So I am unable to see how that would encourage quacks
or how that would encourage...
sex selective or gender based abortions etc.
in any other manner than it was already doing.
Because the emphasis here is
that the person who is pregnant should not be criminalised
when that person is seeking termination of that pregnancy,
for whatever reason and for no reason,
as long as that person wants to do it
and there is enough to show that this is safe…
and it is safe to do at that point in time
that person is asking to do it.
Medically safe.
So I don’t see how that could…
by removing the criminal liability on the woman,
how that encourages any other violations.
Even more than what it was any way doing.
Like even the PCPNDT Act has a clause
in favor of the woman not being the one…
unless you prove the contrary…
that she also had an active part to play.
Otherwise the presumption is that she was under pressure
to undergo any ultrasound
where the sex of the fetus was revealed.
That’s the point I want to make.
As far as the question that Adsa asked.
I’m not aware of what’s the content of the medical curriculum
and I think maybe Dr. Suchitra Dalvie would be a better person
to answer that, or anyone else.
Dipika do you want to come in?
On Dr. Manisha’s question, I agree with Anubha.
I think there are two things I want to say here.
The first thing is that criminalisation of abortion is gendered.
You have to understand that in the context of abortion.
It has a disproportionate impact on women
who must carry the burden of pregnancy and child bearing.
Now in the context of abortion,
the larger question that we must understand...
comprehend to conceptualise…
is how do we want to understand crime?
And how do we confront the state that increasingly wants to
control women’s lives and bodies.
So on the one hand you will have 312 to 316 provision
and on the other hand you will have the MTP
which allows for some autonomy
and then you have the Supreme Court saying
that you have full autonomy.
There are such contradictions
that women’s lives are living in right now
within the Indian legal context.
So if you are going to decriminalise,
it’s not going to increase quacks or quack practices.
In fact you will now be able to access safe abortion.
The doctors will not be intimidated to perform abortion.
You will have the right.
It will be at will that you can demand abortion.
So I think it will only make things better,
it can’t complicate things further.
Decriminalisation will not complicate things further.
The only concern that some feminist groups
may have in this context is
that this provision,
312-316 can be sometimes used by women,
especially in the context of the criminal law reforms in India,
and the rights that women have been fighting for so long
on domestic violence and other aspects,
that when this miscarriage is against the woman’s consent
that when this miscarriage is against the woman’s consent
and caused by say for example domestic violence, mother in law,
and caused by say for example domestic violence, mother in law,
then she should have recourse.
But my question still would be,
should that recourse be within criminal law
or should we seek alternative modes of justice?
And these are larger deliberations we must have.
I don’t have any straightjacket answers right now
but this is the larger framework.
And on the second question about the doctors perspective.
See when… and Dr. Suchitra of course is a practicing doctor
and she can answer this also.
But I think most of them are intimidated
by this multiple web of laws which are all criminal in nature.
So anything that is to do with crime and prisons are intimidating
and the doctors are intimidated.
And there is evidence to suggest that
that’s why they don’t perform legitimate abortions
which is within the legal framework in the second trimester.
Because there is this complication about PCPNDT,
the rigorous surveillance under that.
Then the POCSO complicates many things
for adolescent sexual…
younger adolescent… girls and trans people.
So I think we need to also think through many of these laws
and look at how we can create an enabling environment
and a rights based environment for women to access…
or for that matter, I want to also say that
it’s not just women who are accessing abortion
there is also the larger context of gender diverse people
who are accessing abortion.
So basically pregnant people who access abortion.
There should be a larger rights based framework
and this is already moving towards that.
So I don’t understand why there should be laws
that are archaic, colonial and make no sense.
They were in a certain context in 1860
and they don’t make sense now.
Now the recent amendment, the 2020 bill,
is anyway saying that abortion is for
women who are also not married,
and they’ve actually expanded certain scope.
So there are too many contradictions
and I think it’s important to do away
with criminalisation at least, like Anubha said.
I’ll stop here.
Thanks Dipika.
Suchitra do you want to quickly come in
and respond to the question around medical education
and then I’ll come to you Dr. Rashmi.
And that will be the last question.
Thanks Rupsa. Very interesting discussions.
So couple of points I would like to share.
One is that the Indian Penal Code is very briefly shared
with the medical students during forensic.
Which is the medico-legal subject that we do.
But as a gynecologist I must say,
all we were taught about was the MTP Act
and that too not within a context of rights
but within the context of as a doctor
and as a provider you must do this to stay safe and within the law.
And I think that’s kind of the attitude that stays throughout.
That it’s all about protecting yourself
because nothing in medicine is a really woman centered
or in any way gender sensitive or rights based.
So that’s one bit of it.
The other part I want to just reflect on is,
as a doctor, and as Dipika said,
and Dr. Malhotra was raising the question.
As a doctor if I do anything negligent
or anything that is harmful to another person,
there are laws to protect that person.
So this is again an argument I’ve often had,
some of you may have heard me say it before.
So actually as a doctor,
if I remove your wrong kidney for example
I am liable to certain kind of prosecution
so why would we assume that for a woman
to be denied being a mother because of my actions of
whatever negligence and forced miscarriage
is somehow over and beyond everything else
that it needs a separate law.
I would imagine as a woman,
if you remove part of my brain which I can never get back,
you should be liable to something more than if you remove my fetus
which I can always create again if I really want to.
I know that it is over simplification of the argument
but the fact remains that anything you to do to another person
that causes grievous injury or harm,
there’s already a set of laws.
Why do we need a separate one for abortion,
unless the hidden agenda behind it is to somehow
control reproduction and sexuality,
which women’s bodies are meant to contribute to.
In fact, today being labour day
we are having a discussion on this,
so just one last sentence, to say
that it is kind of a compulsory
and unpaid reproductive labour
that is being thrust upon women
within the framework of patriarchy
and I think from that angle if you look at it
then as Dipika said quite rightly
these kind of laws make no sense in any other context.
Thanks, I’ll stop there.
Thanks Suchitra.
Dr. Rashmi, you had a question.
Maybe you can come in and ask the question
and that will be the last question.
I know people are still putting in some comments in chat.
But maybe we can come back to those at the end,
after we have the next two presentations.
But Dr. Rashmi please go ahead.
Thank you Rupsa.
This is a very interesting conversation.
What I would really like to emphasise
is not just the legality of the abortion,
the MTP act, which as Dr. Suchitra pointed out
most doctor’s know it
simply as a way of protecting themselves.
What is more important is
what will be implemented in the law.
The understanding of that law is very very poor
amongst the actual ground level,
for example the beat constable.
So I am sure Dr. Suchitra will understand,
that when a woman comes in to have an abortion,
she’s in the right.
We’re doing an abortion for an absolutely legal indication.
She’s right, we’re right.
But somebody comes in and creates and ruckus.
Why are you doing this?
You are doing something wrong.
Most providers will simply avoid the procedure
just to avoid this kind of hassle.
Is there any way that we have
for spreading this awareness,
ensuring this awareness, at the ground level?
I don’t know if there is any particular answer,
but Anubha do you want to come in and respond
and ill close this segment after that.
I do want to give enough time to the next set of presenters.
But go ahead Anubha.
The problem with implementation is I think for almost
every law that we have
and the fact that there is misuse of power
and everything that comes with what the police can
and cannot do and should and should not do.
I mean I am sure that a lot of you know would also know
of examples where
because of the mandatory reporting in POCSO
as a gynecologist you do call the police
and I’ve heard of a couple of examples
where the police personnel is actually negotiating a bribe
with the girl and her family to make this case go away
right in the gynecologists office.
So there is of course a lot that needs
to be done in creating awareness.
But let me also say that creating awareness
and ensuring that there is no corruption
or misuse of power are two separate things.
So in fact, one would find that
because there is a lot of awareness
there is more space to misuse
that power and that really is…
I mean that is a completely different conversation.
Which most definitely impacts each and everything that we do.
But definitely it’s not a one solution
that one can say, that ok maybe you should do this
and the police will behave themselves,
or whoever xyz will do their job as they are supposed to.
Even what Renu’s saying in the chatbox
that it is about young people’s sexuality,
the girl’s sexuality.
If I have two minutes
I’d like to share an example of a case
where I recently helped a girl in Pune –
a minor girl, a 17-year-old girl in Pune access abortion.
And I mean what would I do,
I was only on the phone advising her
what you can do.
But the fact that when she and her mother
during this lockdown situation,
when she came to know she was pregnant
and this was consensual sex
and then they went to access abortion
in a well-known private hospital during the lockdown.
While she told the doctor what was,
but the doctor said I’m going to call the police
and she told the police I don’t know who did this.
And the doctor got angry
and said listen you are lying
and I’m not going to do this procedure on you so get lost.
So then they had to go to someone else,
who sent them to someone else,
and finally they landed up with another doctor.
Then they had to go to the police station, lodge an FIR.
So the mother and her young daughter who is pregnant,
sitting in the police station
for about six or seven hours
and they insisted to know who the guy was
so she had to give the name.
Then the guy was arrested,
then she went to back to the gynecologist
saying that ok now that the FIR is done
can you please conduct the procedure.
So the gynecologist said you come tomorrow,
and the next day the gynecologist said
I need it in writing from the police
that I can conduct this procedure.
Then I had a conversation with the gynecologist saying
there is no such need, now it’s well within…
if you think she at 7 weeks she should get an abortion
then you should do it.
It’s a medical opinion.
But there was a lot of back and forth and she refused
so we finally had to bring in an FPI,
and FPI doctors were so helpful
and she was able to undergo that procedure.
Till date the police is troubling her saying that you either come
and get your 164 recorded before the magistrate…
and now of course because the boy’s family has also woken up
and they want the boy out.
To the best of my knowledge he’s still behind bars.
So now the police is coming and asking her to record
that I don’t want to co-operate anymore.
So then I had a fight with the police person on the phone,
saying that right from the beginning
she was saying its consensual,
you didn’t want to write it was consensual.
Now that is it suiting you,
you want to say that she is no co-operating.
And then tomorrow when she goes to the judge
and she will still continue speaking the truth,
you will say that the girl is lying.
Now all of this is happening within the realm of law.
What really needs to change in a situation like this
is the thought process.
Whether it was consensual or not
it was still an offence as per the law is concerned,
then why can’t you record the truth?
Record the truth no, she is saying it is consensual.
It is anyway an offence, the law is such.
But that’s not how it happens…
so there is a lot more that really needs to change.
Yeah Rupsa please go ahead, sorry
So sorry, I’m cutting you short
but I do want to move on to the next segment
and give that enough time as well.
But we will hopefully be able to come back right at the end
and have some of these conversations.
I am noting some of the comments
that are coming up in the chat box
and we can maybe come back to those at the end.
But for now, were going to turn and shift gears a little bit
and really spend the next several minutes
learning from the experiences of other movements.
I think there is a long history of advocating for decriminalisation
in the sex worker rights movement
and of course we have the successful example
of the very broad based efforts taken forward
by a wide ranging sets of people
to decriminalise homosexuality,
which resulted in the reading down of Section 377.
I think these movements, as we take our baby steps,
in thinking this through,
We thought it was really important to hear from them.
Because there are important lessons in the way,
the kind of nuanced understanding of approaches,
how does one go about building both internal
within movement sort of consensus
as well as broad based consensus.
Because these are complex and contentious issues
as is already becoming evident.
How does one delineate between the demand
for legalisation v/s decriminalisation?
How do we address the issue of conflation?
I think here we have a really important insight
that we can learn from the sex worker rights movement
in the way that they constantly had to balance
between sex worker rights and issues of trafficking
where there has been deep deep conflations.
And I suspect for us as we move forward this conversation
we will have to contend with the decade long conflation
between abortion and sex selection.
So I’m going to turn to our first speaker.
Both of whom…
both Tejaswi and Arvind have been waiting patiently.
So Tejaswi is the Executive Director of Saheli Sangh,
which is a sex worker collective
and a community based organisation based in Pune
and Tejaswi is going to present on the perspective
on the sex worker rights movement
and some of work that has happened within the movement
with regards to decriminalisation.
Tejaswi, over to you.
Thank you Rupsa and thank you Dr. Alka,
Dr. Suchitra and the entire CommonHealth team.
I’m very grateful that I am participating
in this very important webinar.
When we talk about decriminalisation of sex workers,
I think sex work itself is very complex
as everybody can see and understand
because sex work per se is not illegal in India,
that everybody knows.
Some people actually don’t know this
and that’s why they believe that,
because sex work is crime in India
punishment is happening to sex workers
and they are getting arrested
and rescue operations are taking place and all.
But these two things are totally different.
There is another confusion people
usually have around sex work,
that they always think entire sex work is trafficking
which is not the reality.
Trafficking needs to be treated
very differently than sex work.
So these two basic things
all the sex worker rights based organisations are fighting for
and that’s why decriminalisation of sex work
is the biggest demand
we are doing for years together.
And having very little progress on that ground.
I’m just talking about little bit in regard
around the decriminalisation
because there are different perceptions towards it
there are different approaches towards it,
even among the sex workers rights based organisation
and sex workers collectives.
Few people think that legalisation should happen,
legalisation of sex work should happen, it will help.
But there are many complexities if legalisation takes place.
Then you are giving your entire control to the state
and the experiences of sex workers dealing with the state…
there is no need to explain it I think.
It says everything actually.
That is not going to be the demand
for the sex workers collective in India.
Another part, people think of partial decriminalisation
because looking at the current law and the entire fixation with
trafficking and sex work which people have in their mind,
it makes things more complicated
and people think…
they think that partial decriminalisation might help.
That means they may somewhere accept little bit of
voluntary entry into sex work
but they will have severe punishment to traffickers.
Now when we speak about partial decriminalisation
there are many things which are practically not giving justice
to the facts of the third party definition
that you mention in the anti-trafficking law in India.
The third party is the person or
the group of persons who are actually...
either taking the person against his wish
and forcing her to do sex worker,
taking all her earnings and all kinds of things.
But there is a different reality,
where this third person,
where this third party person who might be an agent,
might be a brothel keeper,
might be a lover, might be the partner of the sex worker,
who is actually protecting her,
actually supporting her.
So this entire argument regarding the anti-trafficking law
and the decriminalisation is really getting very complex.
And it is very complicated.
And a political will is definitely hampering the entire process
for the demand of complete decriminalisation.
And why the sex workers are asking for decriminalisation
is because there is no space
for accepting voluntary sex work in India.
The other angle why the political will is not there
and why we are struggling so hard for so many years
for demand of decriminalisation of sex work is that
it is highly associated with stigma in our society
because obviously till date sex work has not recognised
as a profession in India and as work and decent work.
Today we are having this labor day
and the demand to accept sex work as work,
sex work as labor is still pending.
And not only from the government
but even from the mainstream society.
So this is the struggle and that’s why
everything is so complex when it comes to sex work.
And there are different lobbies and groups in organisations
who are working for sex workers where
the use of anti-trafficking law is
rampantly done against sex workers,
not just traffickers but mostly against sex workers
because all the sex workers are treated as victims of trafficking
because there is...
which are making the life of sex workers very difficult
and accessing all other services.
I will just pause here for the …
my explanation about...
the need of decriminalisation of sex workers.
When we speak about accessing the services,
especially the reproductive and sexual health services
and safe abortion
but entire stigma which sex workers have in our society.
Secondly the legal complexities where …
and the third thing…
the practical thing
where women who are working as sex workers,
most of them are migrants
so they don’t have many documents
which any government health care provider,
or even a private health care provider will ask for
when she is going for abortion.
Like her government ID’s
which most sex workers don’t have
because they are not the local women.
They migrate and there is an issue of
getting all those kind of documents as a citizen.
It is a very complex process.
Again the stigma and limitations of law that
affects the entire process with those documents.
So that becomes an issue.
Accessing government healthcare services for abortion
is not usually preferred by the women
because most of the women, the treatment they get
from these facilities is very much negative.
Women are getting treatment
with a very big stigma being a sex worker.
On top of that if she’s living with HIV
then things are more difficult.
Stigma gets doubled automatically.
So the treatment as a patient given to her
is very different than the treatment
given to any other woman in our society.
So accessing the health care facilities
for safe abortion is always a big issue.
There are many private practitioners
who are indulging into
abortions of sex workers
with a tremendous high fee.
They charge heavy fees from the women
and they help them with the abortion.
Unsafe abortion also used to be quite common.
You can see the reality that
wherever the sex workers collectives are working
the rate of unsafe abortion is quite low.
But wherever no sex workers collective are working
the unsafe abortion rate is quite high.
Comparatively brothel based sex workers
can access various services
because they are together
and they do have some support to access
to the health care service for safe abortion
as well as for SRHR related things.
So these situations of sex workers matter.
Where they stay,
whether they are associated with a collective
or organisation or not,
whether they are brothel based or non-brothel based.
So it is a whole range of issues associated
with different types of sex workers in India
and I think looking at the complicated situations
and living conditions, and the legal status,
things need to be treated in those perspectives.
You just can’t have one plus one is equal to two,
that kind of answer when we address
the issues of sex workers
around SRHR and safe abortions.
Thank you Tejaswi.
I think it’s quite clear from Tejaswi’s presentation
that when are thinking of decriminalisation of abortion
and we think about all the diverse constituencies
that are impacted by it,
it’s very important to remember
that there are other criminal laws
that are at the same time impinging on other rights
and to be able to think through
our approaches and strategies
I think that sort of a broad based
inclusive analysis is very important.
So thank you very much for that Tejaswi.
I’m going to now invite Arvind.
He’s the Director of Research and Practice at Arc International.
But he has been a founding member
of the Alternative Law Forum in Bangalore,
but most importantly I think he has been associated
with the broad based advocacy
that has taken forward over many years,
CREA too has been a part of that and has been...
and that has included arguing the constitutionality
of the Section 377 before the high court and supreme court.
We could not have a better person to talk us
about the decriminalisation of homosexuality
and the reading down of Section 377.
So over to you Arvind.
Thank you for inviting me for this conversation.
I was very happy to listen to the first part
because I learnt a lot while listening
to my colleagues who spoke just now.
I was thinking, in a sense a lot of the concerns
and the issues which came up both in the chat box
as well as in the responses,
seem to mirror some of the issues we faced
around the 377 struggle itself.
Firstly I will start with the entire issue of how do you frame
the struggle against a legal provision.
Obviously I am quite sure that none of you want to frame it
as a struggle against 312 of the Indian Penal Code.
Because what does 312 mean to anybody else?
377 became something different…
because 377 after a point of time
became symbolise a whole range of other things
and that’s the value of how a legal provision gets infused
with a certain kind of a social meaning.
And how do you infuse a legal provision with a social meaning.
That’s a question or a challenge
in terms of the struggle which you have before you.
And in some ways the answer is already there.
Because what I picked up from the comments
is that it’s really a struggle against a certain kind of patriarchal
morality centered around sex and sexuality.
That’s really the basis of the entire struggle
when you talk about the right to abortion
the way you’ll have described it.
I’ll go back a little bit… back to 377.
If you are familiar with the provision,
it says whoever has carnal intercourse
against the order of nature with any man, woman or animal
shall be punishable with life imprisonment etc etc.
That’s the language of the law.
And again the question is,
how do you frame a struggle against
a legal provision such as this.
One argument you can say is it’s a struggle for the…
struggle for the right to sodomy.
If you’ve said the struggle for the right to sodomy
you are not going to get very far
in terms of again the society we live in
and the kind of political framework we are currently inhabiting.
Again go back a little bit, in terms of the judicial responses.
In the United States, am I audible by the way?
Rupsa?
Yes you are, Arvind.
Hearing you clearly.
I think it’s also part of the challenge all of us face
since we can’t see anybody...
are you making sense or what’s going on. Anyway.
If you go back in terms of this particular provision
in the United States in 1986,
it was challenged in a case called Bower’s v/s Hardwick
and the court upheld its constitutionality.
And the way the issue was framed by the Supreme Court is,
does the right to privacy include
the right to homosexual sodomy.
The court said no.
In 2003, when Lawrence v/s Texas the case came up again
the way the issue was framed is,
does the right to privacy
include the right to forms of intimate association.
The court said yes.
So there’s a way in which the court responds
to the bare act of sex -
the courts and the kinds of societies we live in,
and the way that they respond
to when you think of the act of sex
within the framework of love, intimacy, relationships etc etc.
So they responded more positively.
If you go back to our own case history,
it’s a similar thing.
If you see 2013…
2013 again was where the court saw
homosexuality as nothing more than a series of...
a series of outerfaces and interfaces.
That’s the way the court hearings went on.
Obviously in 2013 we got the judgment that we did.
Whereas in 2018 and 2009 the court is very clear.
They said its really about the right to dignity.
And when we are talking about the right to dignity,
it’s your right to intimate choice over your body.
It’s the right to make choices about your life
in terms of who you choose to be with.
So the court was able to see a wider range of societal structures,
in which sex is implicated
and were able to give a certain kind of dignity
to the choice people make
when they choose to engage in sex, intimate association etc.
So the first question is really how do you frame it?
And here the simple answer I’ll put forward is…
there was a lot of debate
and there are many ways of framing it.
The way of framing it with which
we went with is the right to love.
And why did we go with the right to love.
I’ll just tell you the positives of it.
This has been a debate which has gone around,
and some of my colleagues I’m sure even now they will say,
this guy is still going on about the right to love
and they will have a strong objection to it
and very fair objection as well,
from the perspective they look at it.
But I’ll tell you why I think the right to love makes sense
and what potentially one can learn about it
for the campaign for the right to abortion.
For me the right to love makes sense from two perspectives.
Firstly, in the Indian context,
when you say the right to love,
it’s really about the right to intimate choice.
And the right to choice is something which Indian society
and the Indian state look down upon.
So when you are asserting your right to choose,
that’s the fundamental way I’ve seen the right to love.
And again the reference point we’ve often use here is
Amdedkar’s Annihilation of Caste,
where he makes a point that one the ways
the caste system will get destroyed is when
blood begins to mix with blood.
And he uses the phrase blood begins to mix with blood,
it doesn’t necessarily limit it to inter-caste marriage
when he says blood begins to mix with blood.
So you get a sense of the fact
that your struggle in a society such as India
when you say the right to love
is really for a way of challenging
the societal structures of caste and gender.
And the questions of religion as well.
The hegemonies imposed by religious ideologies
and the idea of a religious community as self-contained.
You challenge all of these structures through the right to love.
So the right to love again, the way I’d put it,
it’s got a certain revolutionary dimension in the Indian context.
In another contexts you can argue it’s a bourgeois right,
it’s a meaningless right, but in India I say it’s deeply meaningful
because people die to assert the right to love.
Especially when you see the range of inter-caste,
inter-religious couples, in this country
who have been killed by their own families
for daring to love across lines of religion and caste.
So the first question I would raise,
can you frame this in a broader sense?
And again framing it in a broader sense
will mean that we will have to go back in a sense
to the legal archive to see if there are any cases
one can pick up on to make this kind of a point.
And the case we went back to in the context of 377,
again it’s a… there a lot of parallels here.
I think, Aparna referred to,
I forget the  numbers but I think 2500 or so cases.
She also made a very very interesting point,
Dipika made this very interesting point ,
that the consent and lack of consent question was quite blurred.
We didn’t know where it was with the woman’s…
where the abortion was performed with the woman’s consent
and then without her consent.
And 377 is the same problem right.
377 is the provision where consent does not matter.
So lot of the prosecutions are for cases
which involve non-consenting sex.
So in fact if they look at the archive
on consenting sex under 377
we were able to come up with,
you won’t believe it, a total number of three cases
in the entire history of the use of the law,
prior to the more recent times
where the range of recent arrests happened.
Then of course you get back to the question,
why then challenge a law which has such minimal impacts.
That’s a big question.
That’s a question I think some of you’ll raised,
and I think it’s a very important question.
Why are we wasting our time and energy
challenging a law where at the end of the day
nobody is using it.
So what’s the song and dance about this law?
And Dipika’s answer there was that
the law itself links up to stigma.
Because if you look at relationship of law to society,
law can actually produce or perform a stigma
against a certain community.
And in 377 we saw that in a very particular way
because if you go to the police station
and say you want to file a case
of harassment or violence as a gay,
or a person belonging to the LGBT community,
very often the police would likely look at you
and say that you’re an offender.
Or you are someone who violates the law.
You were someone who was out there cruising in the parks,
and you’ve got the chutzpah to come and file a complaint now?
Of blackmailing?
That’s the response you often get from the courts…
sorry from the policemen.
So there’s a way in which the court…
the law creates a certain stigma
which inhibits you
from exercising your full fundamental rights.
And to give you one more example
is when one of our colleagues filed a complaint
before the National Human Rights Commission
when he was being treated by a doctor
for ego-dystonic homosexuality,
which is what the ICD 10 calls it.
And he filed a complaint
alleging some form of medical malpractice.
There could be…
in the charge sheet initially he admitted the complaint,
then later on he said that there are allegations
of an offence under 377
and 377 is there on the statutory books
and therefore we can’t deal with it.
So there are a range of ways in which the law became
a block to accessing a full range of your fundamental rights.
So the challenge for 377 was to…
I’d put it this way, had two dimensions.
One is we had to look at the legal dimension
which is at the level of the police.
If you are getting arrested by the police,
it’s a straight violation of your rights.
At on another level it’s also about
a way of challenging a societal morality
around issues of sex and sexuality.
And at the third level it’s a way of challenging
the structure of how caste and gender operate in this country.
So it had these three potential levels
at which the challenged law could work.
So how can we think of a challenge
to the provisions in abortion in a similar way?
And strangely I’m just going back
and looking at some of the older material to see
where some of the sources of inspiration came from.
I’d done a paper much earlier
which looked at one particulate case,
legal case in 1912 called Naushirwan v/s Emperor in Sindh
where the story was basically this.
Naushirwan runs a restaurant in Sindh.
He meets this boy called Ratansi.
They both exchange some kind of looks at a point in time.
Then they both go to Naushirman’s room
on the terrace somewhere
and they are engaging in what all accounts
should be an intimate act of sex
to which, I, you, nobody need know anything about.
Whereas luck would have it,
a police officer, possibly with a grudge
or we don’t know why was peeping through the keyhole,
he saw what was happening
and he marched them off to the police station
and filed a complaint under 377 against them.
The point of the story is to say that,
what is the nature of the relationship
between Naurshirwan and Ratansi?
We don’t know.
We can only speculate on the nature of the relationship
because the legal archive does not tell you
what was going on between both of them.
We know they were engaging in a sexual act,
but that’s about all we know.
One of the speculative thoughts was,
was there also a form of love between both of them,
was there a relationship between
both of them which was there.
Were they inhabiting what we can call,
a little community of love which is born before its time.
A love which didn’t have space to breathe
and they were creating a world ahead of its time.
So that’s the kind of speculativepathway down which I went.
But I was very inspired actually
by an essay by Ranjit Guha, called Chandra’s Death,
if you’ll haven’t read it,
all of you’ll I suggest must must read it
because it’s an essay in the subaltern studies volume
and it’s a 1850 account of a story
of a sister who administers what you would call…
ill just read out a small part of it.
This is the sister speaking.
She administers this material to Chandra
with a view to causing abortion
or with a view to causing miscarriage of the child.
I’ll just read it out to you so you get a sense of what is its take.
I made a paste of the drug again at dawn
and I administered it to Chandra.
That did nothing to destroy the foetus.
Next day when I went again to the same Kali Bagdi
together with my mother and Chandra,
he gave us a herbal medicine
that had to be taken thrice a day
and two tablets of bakhor guli
diluted in lime water.
This medicine is being given…
Then at about a quarter past
the foetus was destroyed and fell to the ground.
My mother picked up the bloody foetus
with some straw and threw it away.
Even after that the pain in Chandra’s belly
continued to increase and she died
when it was still four of five dondoes left of the night.
Chandra’s corpse was then buried near the bend
by my brother Gayaram, his brother in law
and my mother’s brother Horilal.
Then they get on board another defendant
who was the lover of Chandra.
And this is what he has to say,
He says, I have been involved
for the past four or five months,
in an illicit love affair with your daughter Chandra Chashani,
as a result of which she has conceived.
Bring her to your own house and arrange
for her some medicine to be administered to her
or else I shall put her into bhek.
That’s part of the fragment of what the...
What is there in Chandra’s Death
which Ranjith Guha talks about.
And I think it raises all the issues
which we are really talking about.
Why did Chandra choose to have an abortion?
What is the kind of choice that she had?
Here it’s a simple case
where she’s had an illicit love affair
and the man who was her lover
is telling her very clearly,
that I have had a love affair with you,
I take no responsibility as far as the child is concerned.
I will put you in a widow’s home
unless you get rid of the child.
Because of which the sister gets into it.
The sister consults a traditional healer
or doctor who gives the medicine.
The medicine has the effect of getting rid of the foetus
the way the judicial archive describes it,
but it also kills her in the process,
based on which the sister and the mother in law
are tried for murder.
And Ranjith Guha’s question is this,
“What accounts for a loving sister
to be treated as a murderer?
And a former lover...
who so heartlessly betrays the person
who he had loved till now.”
And the answer which Ranjith Guha provides,
which gets back to our question,
is how it’s really a form of sexual morality
and how the burden falls most heavily on women.
And here is this guy, he has a love affair,
he will take no responsibility as far as he is concerned.
He says I’m done, you deal with your life.
So her sister...
so that she can have some form of
a continued life in this village,
goes forward and tries to save Chandra
and in the process ends up killing her.
So I think if we think of that as a frame
that raises a range of the issues
which one is really talking about
and the issue of sexual morality
and how it controls, demeans and subordinates women
and the choices that women can make.
In spite of the fact that there is a constitutional framework.
So I think the question is this
if we can get maybe from the 2000 plus cases
which Aparna talked about
if we can figure out a range of cases
which tell stories of what are the lives being impacted
by these legal provisions
and based on that we build a campaign around...
around decriminalisation of that provision.
While making the point that actually it’s not
just a question of 312 going,
it’s really a question about changing a form of
social morality on sexuality.
And the fact that this social morality on sexuality needs to change
is already gestured to by the changing law of Supreme Court
right from Suchitra Srivastva to the right to privacy
to the Navtej Johar case to the Joseph Shine judgment.
That needs to translate into a
ground level thinking and action.
And here again I guess what we can invoke
is the idea of what we call constitutional morality.
The important thing about the right to abortion question
and the way we are discussing it now,
it’s coming in the light of a…
I think Dipika made the point already …
in the light of a very well established jurisprudence
where the right to choice, the right to autonomy,
and to dignity of women is recognised
unequivocally by the Supreme Court.
There is no ambiguity on that point at all.
So now the point is how does that translate
into action on the ground level?
How do we ensure that women’s choices are respected?
How do we ensure that women aren’t penalised unfairly
and disproportionately for the choices
made by both men and women
in the context of love and intimate relationships etc.
And here maybe one can just end with Dr Ambedkar’s invocation
of the idea of constitutional morality
where he made the point
which again is reiterated in Navtej Singh Johar
as well as Joseph Shine as well as Sabrimala,
where he made the point that the constitutional morality
is not a natural sentiment,
it has to be cultivated
and democracy in India is the top dressing in the soil
which is essentially undemocratic.
So the point being made is really this.
We change the law at the level of the Supreme Court.
How does the change translate into ground level action.
And I think that’s a question all of you have raised.
At the end of the day,
why do we need to get involved in the struggle against 312?
How does it matter to us?
If that change is not going to be able to change
a societal morality and a sexual morality
and challenging a certain kind of patriarchal structure
which underlie everything else.
And so that’s a question for us.
How can the struggle against these provisions
become a form of a campaign to assert
the right to choice and the right to autonomy of women
and a challenge to social morality and sexual morality.
Ill end with that.
Thank you very much Arvind.
I’m going to open up for comments, questions.
I did see some comments already posted
and feel free to direct your questions
to either of the two speakers
or generally if you want to make a comment.
Amit, I did see you’ve written down some comments.
You want to share with the larger group?
I just wrote that due to the criminalisation of sex work,
the larger sex worker community
can’t access the basic health facilities
like they are just visiting the hospitals
and the hospital deny access to health facilities,
even though…
looking at various parts of the country,
sex workers are complaining
that they are just visiting hospitals
and the hospitals denied them due to their identity
because they usually have sex with multiple people,
so they are often denied because of this identity.
So I think we need to focus on this.
Because of your identity you cannot be denied
access to basic health care facilities.
If they are denied the basic health care facilities
what will happen when the sex workers try to
access to abortion and SRHR facilities?
So this is a serious concern for sex workers
and trans communities as well.
Thank you Amit.
Adsa you had a comment?
I was just briefly adding to what Amit has posted.
Just to add to that.
I completely agree that somewhere

it has to be about decriminalisation.
What Anubha and Suchitra had earlier mentioned
when they were talking about medical professionals,
just to share at SAMA as part of our engagement
with gender based violence issues,
and a lot of POCSO enquiries come up.
And what we have tried to see
because we conduct orientations and trainings with
medical professionals using the MOHW guidelines.
What we see, and what Arvind also mentioned,
is there is a large sense of interpretations.
There are so many contradictions.
So at least using those guidelines
what we try and get across that
abortion is also the first aid…
first line of treatment.
Even within POCSO cases, if you want to report,
you can report, but you cannot delay it.
One thing is to of course to transform,
to find that ….
We are saying that ok well intentioned
and good-hearted people within these service providers.
But at the same time having that enabling environment,
a law that recognises that is rooted
in right based framework becomes very critical
is what we have also constantly realised
from our field engagement.
We know for sure that this non-denial,
because there is another IPC and CRPC section
which says you cannot deny.
That’s also because these service providers,
mostly with doctors,
in our interaction we are saying that
you do not want to be on the wrong side of any law.
So it’s a constant negotiation located
in this big cloud of different sections,
some of them leaning progressive
while cutting down the other when it comes to conflate…
Thank you Adsa.
I’m going to have any comments
... questions to Arvind and Tejaswi
and maybe come back to you’ll.
Swagata I think you were making a point
about the whole framing of right to love
and how you thought it was pertinent
when we think about adolescents.
Yes absolutely.
I’ve just been listening to all the speakers
and I think POCSO has really turned everything on its head.
the access of adolescent girls to termination services
particularly impacted because of POCSO.
For doctors, somebody asked about mandatory reporting
and if there is any data.
What we are seeing on the ground, data wise,
when I was part of the Centre for Child and the Law,
we saw mandatory reporting is mostly by parents,
followed by the victim and very rarely by…
maybe less than 1 percent is by other people.
But the on the ground experience we have
in dealing with POCSO cases in Bangalore,
We find that it is the doctors who call the police
and then the doctor insists
that the parents become the complainant.
So the doctor is not necessarily the complainant,
the informant,
but it's the doctor who triggers that entire process.
And while hearing Arvind speak about
the right to love
and how important it is to couch…
the way in which you present a particular issue.
I was seeing the other comments in the chat box.
It’s true, there is just no social acceptance
of the fact that adolescents can have sexual feelings
and can have sexual expression.
So it's a long haul.
How would you really pitch that?
Would it be a right to health frame
or would it be something else?
One other thing I wanted to share
that during the lockdown period,
a colleague of mine, was able to facilitate
the termination of a girl's pregnancy
who was 14 years old, 22 weeks along
and the Karnataka High Court…
everybody just came together.
This was a more remote district in Karnataka.
Within 24 hours all reports were sought,
petition was filed,
the Karnataka High Court heard it
and disposed it within two days.
So something’s also work,
provided everybody comes together.
Thanks Swagata.
Aparna I can see your hand up.
Hi I had a question for Arvind.
Hi Arvind.
I was wondering whether you could share
some strategies you used on evidence gathering
because I think there’s some similarities there as well.
There is so much of stigma.
There’s a history of persecution not prosecution.
Many of those similar things we are seeing here as well.
How did you gather evidence
and some of those very powerful testimonies
that you brought to court.
Because the legal archive as you mentioned
is very blunt or very limited.
For example it doesn't tell you the nature of the relationship.
A POCSO case, as Swagata was mentioning,
the legal archive will say parents filed a complaint,
and possibly the nature of the FIR would be that
the girl in question was raped,
that it was against…
it was without her consent that
the element of the question of love will not factor
into the legal archive at all.
And going outside of the legal archive
evidence gathering becomes very difficult
because people don’t want to speak about it etc.
So what were some of the strategies,
would you have any advice on that?
On evidence gathering that could build the case
both in court but also in the court of public opinion
on the need for a change in our legal set up?
Thanks Aparna….
Arvind, there’s one more linked question
so I just wanted Nandini to also ask that
because its also something she…
I think you can bring in to your response.
If you allow, ill just let Nandini come in
then I’ll come back to you
and then to Tejaswi.
Nandini please go ahead.
I just want to flag that love, again,
can be determined very morally.
It can be tied to institutions like marriage and...
... and judged,
whether you had single partners or multiple partners.
So I am looking at it …
a better way to frame it would be the right to pleasure.
Just to keep away the morality
and other things that may come in.
That was my point.
Thank you Rupsa.
Thanks. Over to you Arvind.
First you, and then Tejaswi.
So you can come in after Arvind.
Thanks for both the questions.
Aparna, thank you for doing part of my work,
which is, I should have mentioned the fact
of the prosecution vs. persecution point,
a very very important point indeed
and I’m glad you put it across.
In terms of how we gathered testimonies,
in a context of a certain level of stigma
and people not willing to speak out,
you are 100 percent right about that entire context.
Here’s where the link between a social movement
and a legal process becomes so central or so key.
Because it’s very difficult if not impossible,
to get people to testify
if they are not part of a process
through which they are empowered
to put forward those testimonies.
To give you an example,
some of the most powerful testimonies we got…
one of was this horrific rape
by a transgender person called Kokila
by the Baiyappanhalli police in Bangalore.
That emerged through an activist process.
The rape happens, she complains to the organisation,
which includes Vividha and Sangama at that point in time.
They get together.
They mobilise protests and rallies around the entire point.
There is a week long rally that happens in Bangalore
and there is an event which…
I remember that the person who spoke there was Gauri Lankesh
and the point that was made was saying that
these are the four police officers
who are responsible for the rape of Kokila.
So I’m mentioning all of this because each of these
had a strong participation of the community.
People see that.
They say hey, if Kokila can speak up, so can we.
There is a way in which courage is a collective process.
It emerges.
One person speaks up, then other people say so can I.
That's how it happens.
So it's a certain way of building a sense of community,
which allows for these narratives to emerge.
Again if you ask in 1991 and 1993,
if you look the archive and see Siddhart Gautam’s work in Delhi
you realise how difficult it was.
The first report which came out,
Western Gate, he testifies to the fact that
it’s impossible to get people to testify in their own names.
By the time it was 2009,
Kokila testified in her own name.
There were a number of testimoniesin people’s own names.
Couple of testimonies used pseudonyms
or didn't want to put forward their names
for obvious reasons in that moment of time.
So I think that link between the social movement process
and a legal process could result in
getting these narratives or stories forward as it were.
There is also a bit work done around inter-caste,
inter-religious marriages I think.
That again emerges from a political process
within the feminist community and the Dalit community.
So there are ways in which you can maybe
tap into those movements
and see how we can get these narratives out.
Because say this is our focus.
These are the stories which we want.
These are the stories which we would take forward
because of a larger struggle of freedom
from a certain kind of societal morality around sexuality.
Nandini’s question again its an important question.
I take it well that the notion of…
that there are many many problems
with the idea of the idea of the right of love.
But I still hold on to this right to love only for one reason.
I mean I know you won’t be fully satisfied,
but ill safely add the phrase subversive love to it.
Maybe that is one way forward.
Because my interest in the idea of love
is the fact that I don't think….
I don't think pleasure does the work we want it to do.
End of the day, pleasure is an in individual thing.
It’s about you. You’re getting the pleasure.
How does it help the rest of the world if you get your pleasure?
My point about the right to love
is it is a way of challenging the structure of caste,
the structure of religion and the structure of patriarchy.
And that is why the right to love is important.
And again, I get your point.
There are many many contexts
where the right to love can very well end up
supporting a status quo-isque position.
But I think we have to recognise that
India is a particularly unique kind of society.
We can’t transpose a western framework
onto the Indian context…
not framework…
A western idea of the limitations of love
on to the Indian framework.
In the Indian context, you have to first recognise
the advantages of the work that the right to love does
in terms of challenging certain social structures
and then look at the limitations.
That being said, again I think...
this is a debate one has.
It’s not a final answer.
Tejaswi did you want to come in
on any of the comments or questions. Please do
Basically about collecting narratives.
I think that is very important
and it is very necessary to put...
firmly on the ground to create evidence
to fight against criminalisation
of sex workers and access of services.
Many of us are doing it.
Recently we have done quite an exhaustive survey
and submitted it to the National Network of Sex Workers.
We have done a survey on access to safe abortion
among sex workers and what are the issues they are facing.
I think across the entire population,
many issues are quite similar.
Basically it starts with stigma,
lack of documents
and the way the sex workers are getting treated
and why they are going for unsafe abortions.
I think all these things are interlinked to each other
and needs to be taken into consideration quite seriously.
Accessing everything actually.
Including the government health care services.
Thank you Tejaswi.
Geeta I can see your hand up.
Please come in.
Hi everyone.
Arvind I couldn't resist.
I thought I wouldn’t say anything but here I am.
So I think what I was going to say is…
you know somewhere, where we used the word 'right'
whether its for pleasure or whether its for love,
what does that invoke in terms of the role of the state?
So one of the ways in which
I think about the right to pleasure,
or rather the right to pleasure...
the right to love is more like a t-shirt right.
You put it on your t-shirt and you go march.
I don't want the state guaranteeing it...
So that’s one.
When we’ve talked about pleasure,
we’ve at least said can we differentiate between
the right to pleasure v/s the right to seek pleasure.
So the word seek becoming more about
an enabling environment, agency, choice…
so that was my second point.
And my third point is sometimes its hard
when we use these words
and we put a versus in two positive ideas.
Whether it’s pleasure and love
and whatever meanings they hold
because already there has been such a struggle,
especially in the feminist movement,
to even build out a language around pleasure.
We have spent so much time in our life
as feminists creating and crafting amazing language,
necessary language on violence against women,
or gender based violence.
We haven’t done that work with pleasure and love.
So I don't want to get into what is better or worse
but I was thinking more as to
why even say pleasure v/s this…
or this is less…
or there is a hierarchy between them,
depends who is talking, so ill leave it at that.
Thanks
Thanks Geeta.
Is there anyone else who wants to come in,
make a comment?
Can I respond to that or…
Yes Arvind, you can respond to that
because it doesn't look like anyone else
has any additional questions/comments.
So how about I let you and then maybe Tejaswi
make some concluding points
and then we can just open up for a wider discussion.
So Arvind please go ahead.
Thanks Geeta.
This again, I see this as a continuing conversation.
I don't see this as a full stop in terms of
anybody having the right answer as it were.
I think my point was only to say that
this is one way of framing it.
My point was to say,
why frame it as the right to love
and the work that the right to love does.
And Geeta’s counter is a very good counter.
Her counter is to say that
when you frame it as the right to pleasure,
you are talking about something which patriarchy…
as far as the way patriarchy operates,
it denies the fact that women have right to pleasure.
So in that context it’s very important
to talk about the right to pleasure.
So ill just maybe put it as a contextual response
saying in some contexts
you have to stress on the right to pleasure.
I completely get that.
Other contexts you may want to choose
to stress on the right to love.
But on the other point which I can’t resist coming in…
on the point of the right being a t-shirt right.
I’ll just make one response.
I'll say that, to me the way I’ve understood rights:
Rights are a product of communities in struggle
and people resisting.
And I think if we have any rights at all,
in the Indian context,
it’s because of struggle.
So I think the importance of these rights,
the language of rights,
is that it embodies behind it
a certain history of mobilising
and a certain history of struggle.
And if you take just one example,
if you take the articulation in the constitution
of the criminalisation of untouchability,
or you take the articulation of the constitution
of every person having the right to access water
regardless of the discrimination against caste or religion,
that is a product of a historic kind of a struggle.
So I’ll just make that one point.
Again to say that this is just one point,
and to take the point well.
That rights have limitations.
We use them when we have to.
And there are other frames which we maybe
more useful in certain other points of view.
But point well acknowledged.
Thank you Arvind.
Tejaswi did you want to make any concluding points?
I think we need to look into the larger picture.
That’s what the time says.
Looking at the situation being very complex,
and I hope Arvind will agree with me
that the fight of sex workers is mostly
not in association with other mainstream feminist movements
to the extent that it is expected.
If you see the history of the LGBTQ movement
and the sex workers movement,
I think the sex workers rights movement
is actually the earlier one.
It has a longer history than the LGBTQ movement,
in India especially I am talking about.
But when it comes to getting decriminalisation status,
I think sex workers are still struggling
and still it is a dream for them.
Unless we have a concrete support
from the feminist organisations
and the entire feminist movement in India, and abroad…
because there are some confusions and debates
around trafficking and sex work amongst feminist organisations.
I think unless we have everybody on the same page,
things are going to be tricky for sex workers.
So that dialogue is also equally important.
And I am really thankful to CREA and CommonHealth
to give this platform to have this kind of discussion very openly.
Thank you.
We’re not going to end,
we have five minutes and two hands.
Its been fascinating and absolutely enriched discussion.
But Dipika over to you and then Amit.
Thanks Rupsa.
I just wanted to respond to what Arvind was saying.
Actually it’s really helpful to understand
how to work together as a multiple stakeholder community.
Because abortion is a complicated issue as we know
and we’ve been speaking amongst us.
And it needs wider conversation,
wider information and wider deliberations.
This is one of the first ways to do that.
But to Arvind’s point in strategy.
I think it worked differently for 377,
because as he said himself,
it was a different issue.
The framing for me has already been done
by the Supreme Court.
The framing is within all the rights between 14, 19, 21.
But how do we reconcile multiple laws that exist
within criminal and civil framework.
How do we look at Dalit and Adivasi women’s access,
which is highly marginalised.
Not just because of the law,
but also because access to barriers to health care system.
How do we think through a case,
which was done in 2016 in Chattisgarh,
the Khajoor case,
where the Adivasi woman was raped
and they refused to file an FIR.
She went to one hospital,
they moved her to a second hospital,
and finally she went to the court.
Now the thing is that MTP does not provide
any provision for you to go to the court.
Why must you go to the court?
You must go to the court because the systems
do not allow you to navigate the legal process.
And criminal provisions there are also responsible
for this kind of larger roadblocks.
And finally when she does go to the court at 21 weeks,
beyond the limit, the court thankfully allows it.
So we are very grateful that the court allowed it.
But there are also instances
where the courts don’t allow it
and the women have to carry…
young girls have to carry their pregnancy to term.
So what I am trying to suggest is that
there are multiple issues
and multi layered complicated issues.
But we are not where the conversations
for other issues have been historically.
For example just trying to
build the evidence is really important,
but how do we frame it.
I think the Supreme Court has already done that work for us.
The recent reforms will do that further for us.
So I think we have to look it
also from a different dimension.
Though these conversations are very helpful.
And I agree with Geeta that framing this v/s framing that,
while some of that can work for litigation strategy,
we should not engage in any kind of litigation
that will compromise rights for other groups.
For example if you look at love and pleasure
there are sexual minority practices
that may get marginalised in the process.
For example BDSM, kink and the law.
So there is also this larger nuance that is really important
and fundamentally should be factored in
when we have these conversations.
And I believe this is one the first conversations
that are bringing people together
and we must have many more
before we even think of what kind of legal change,
but at least there should be an agreement
on what the fundamental problems are.
Thank you Dipika.
Amit, do you want to come in?
I only wanted to add a suggestion
because this discussion today,
considering it is Labor Day.
And along with decriminalisation of sex work
it is also important to try and see sex work also as work.
During this pandemic situaiton
this problem has become more visible.
If sex work was decriminalised,
if it was also recognised as work,
maybe sex workers would not have faced
this problem all over the country.
The government relief and servies would also
have reached the sex workers
if they also had an identity to carry
like other migrant laborers
or construction labors would have
I think it's an important issue to address
especially in such times
that along with decriminalisation of sex
we all think and try and understand
why sex work must be seen as work
and why sex workers have been raising their voice
about it for all these years.
Thank you, Amit.
It's a very very important point that you are making.
Its a very important issue
We are aware of how the sex worker community
has been so terribly affected by this pandemic
and the response.
I can see Kusum also has her hand up
Kusum, would you also like to add something?
Rupsa, I would like to add to what Amit just said.
Like how he pointed out
at the situation in the country during the pandemic
The labor community, whether domestic or migrants
they are all coming forward with their demands.
They know that their work is not being valued
so they are coming out and talking about their problems.
But the sex worker community is not able to do so.
They are finding it difficult to come forward
and talk about the problems they are facing,
to the government or to any organisation.
The most affected are the sex workers
who went out of their homes, to do their work.
No one knows where they live.
No reliefs are reaching them
Some of them have children,
and also parents to look after.
They are not receiving any of those reliefs
which are mere essentials in the pandemic.
And these troubles they are facing are simply because
sex work is not decriminalised
sex work was not seen as a work
like any other work by another community.
So we have to bear the brunt of it,
repeatedly, and in any situaiton.
There are so many problems these days,
especially for medicines and food.
Houses which were run by a sex worker's income
today have no source of income,
since the sex worker can not step out.
So these are some of the problems that are being faced.
and will continue in the months ahead
I think 2020 will just go
in dealing with these immediate issues.
Only after that a sex worker will be able to earn again.
It's a very important issue
I would really request everyone who is on this call,
there have been multiple efforts made by both,
the All India Network of Sex Workers
and the National Network of Sex Workers.
All the representatives of these networks
are part of this webinar.
I would request you’ll to look out
and if there is a way to come out and support
I would really encourage you’ll to think about it.
I think this is the time
for all of us to stand in solidarity with each other.
So, absolutely Kusum, it's a very important matter.
We’ve kind of reached four o'clock
and I am conscious of the fact
that all of you have spent two on hours
on what I think was
a very engaging and interesting discussion
and I think all our speakers,
Dipika, Anubha, Arvind and Tejaswi
have got us off to a really important start
and I hope in the coming webinars
we can build on some of these discussions.
I’m not even going to attempt to sum to up,
because it’s impossible to sum up
these wonderful rich presentations.
I hope all of you found it useful, interesting
and I hope you continue to engage with us
through the next two webinars.
The next webinar,
which is going to be on access to abortion services
in the context of government programmes,
pandemic health crisis and changes in abortion laws,
is next Wednesday, 6th May,
Again at the same time, 2-4 PM.
The zoom details are in that PDF document
that was shared by Alka
but we will send out a reminder a day before
and I do hope all of you will continue
to join these conversations over the next two webinars
and we continue to build on these conversations.
Thank you everyone.
Including Arvind, Tejaswi, Dipika, Anubha
for really setting us off to such a wonderful start.
And thank you everyone for your time
and your engagement
and we look forward to having you all again
next week, on Wednesday.
Thank you and goodbye.
