NOT ROE VS. WADE
Safoora Zargar's case raises critical questions relating to legal regimes and reasoning that must inform the jurisprudence of human rights and civil liberties. Justice Shakdher of Delhi High Court, who granted bail to Zargar, raised the question of the line of reasoning that would apply to a pregnant woman in custody. Advocate Nithya Ramakrishnan (The Wire, 24 June 2020) appearing for Zargar, prepared a note that turned on the 'personhood of the foetus' reflecting at length on the 1972 US case Roe vs. Wade, a widely discussed and contested case on abortion and reproductive choice. In setting out Zargar's case within the framework of Roe vs. Wade and deliberating at length on the right of the unborn child, Ramakrishnan draws in arguments on international law and standard setting in domestic jurisprudence. However, she provides a line of reasoning that pro-natalist movements in the west have historically used to deny abortion rights and reproductive autonomy to women – pitting 'foetal rights' against the rights of the woman seeking abortion. Without dwelling at length on the pitfalls in this argument, its anti-minority/class and race bias in the US and elsewhere, as well as the inadequacy of the pro-life/pro-choice binary in discussions on reproductive autonomy need to be flagged.
In this note, I attempt to draw out a different line of reasoning that does not lose sight of context, specificity and intersections, in the hope that more will join in the debate and we can evolve, together, a reasonable and just standard for the law that is mindful of reproductive justice and gendered personhood and rights.
Rupturing the seamless narration of foetal rights in the west, Lola Olufemi (2020) points to the repeal in 2018 of the 8th Amendment of the Irish constitution that equated the life of the person carrying the foetus to the life of the unborn foetus -- a move that made abortion legal in that country. Therefore, even in invoking international standards, it is important to play close attention to which international standards we invoke and whose interests they subserve. We are now in 2020 at a moment far ahead of the Roe vs. Wade moment of 1972. The question is one of 'reproductive justice' and 'bodily autonomy,' not one of the 'personhood of the foetus' vs. the right to choice. 'Reproductive justice' –a term coined by black women in 1994 – is recalled by Olufemi, for moving the discussion from rights to justice, thus broadening the debate on dignity and taking note of 'intersectional oppressions' of supremacist, misogynist, neoliberal regimes (Olufemi 2020: 40). At a time when we are grappling with the intersectional meanings of Black Lives Matter especially in a supremacist Hindutva setting, the kinship between and interlocking of supremacist regimes, as also the similarities in their technologies of gendered rule, oppressions and persecution can scarcely escape our attention.
THE CASE OF SAFOORA ZARGAR
This is the case of a Muslim woman from Kashmir – pregnant at the time of her arrest for her resistance against the Citizenship Amendment Act, 2019 (CAA). This, as is widely known, is an Act that disenfranchises Muslims in India in a manner that renders them vulnerable to religious persecution, targeted violence and dispossession from citizenship in unprecedented ways – with both state and non-state actors acting in close concert. The comparison has often been made between the present time and Partition violence. And yet, except for our sense of horror at wanton violence, these two moments are not comparable. Partition was an anomic moment. The year 2020 is not 1947. We have had a constitution in place for seventy years that guarantees what Mignolo and Walsh call a 'pluriversal democracy' (2018) with six preambular keywords that have guided its travels: justice, liberty, equality, fraternity, dignity, and nation (Rathore 2019). We have had fully functional institutions of government, law and justice that have (warts and all) provided us with a voice and vote to contest and question arbitrariness and mis-rule. The CAA belongs to this present moment.
The figure of Safoora Zargar represents the unprecedented resistance by Muslim women to the derailment of the constitution by law. Her entrapment in the Unlawful Activities Prevention Act, 1967 (UAPA) for inciting collective violence that targeted Muslims in North-east Delhi in February 2020 is part of the state response to criminalizing resistance by, with and on behalf of Muslims (we have seen several other arrests and chargesheets as well in the intervening period between Safoora's arrest and her release on bail).
Whether or not bail was argued on merits, it is important to contexualise the 'humanitarian grounds' conceded by the state in the matter of her release. The arrest of a pregnant Zargar in April 2020 and her incarceration for two months cannot be viewed apart from the persecution of minorities through vigilantism on 'love jihad', sexualised hate speech, sexual humiliation, demographic profiling, and other forms of sexual and reproductive harms that we have increasingly been witness to. The focus on her pregnancy, therefore, need not take the route of foetal rights at all, but simply stay with her right to protection against reproductive and pre-natal harms, and reproductive autonomy as a critical aspect of dignity and the right to privacy. As a point of clarification, I use 'prenatal harms' in a very specific manner embedding it in the larger understanding of sexual and reproductive harms. 'Prenatal harms' in this scheme is distinct from and in opposition to anti-abortion/pro-natalist positions that further the 'rights of the unborn,' or posit the 'personhood of the foetus.'
THINKING THROUGH A DIFFERENT APPROACH
I believe that hers is not a case of the 'rights of the unborn' but one of Zargar's fundamental right to privacy, reproductive justice and protection against the wilful exposure to prenatal harms as part of an exposure to reproductive harms.
Indian Penal Code
Sections 312 to 315 Indian Penal Code set out the offence of causing miscarriage: voluntarily causing a pregnant woman to miscarry with sentence varying between stages of pregnancy (312); causing miscarriage without the consent of the woman (313); causing the death of a woman because of miscarriage with sentence varying between cases where woman consented and those where she did not consent (314); preventing the birth of a child or causing its death immediately after birth except where such death of child occurs in an effort to save life of mother (315). With the exception of Section 313, it must be noted that all these sections focus both on reproductive harms suffered by the woman (i.e. when she does not consent) and criminalizes termination of pregnancy by a woman, both. Section 316 IPC places the life of the woman and her 'quick unborn child' on par, holding a person who causes death of either guilty of culpable homicide.
These sections are a double-edged sword and can only be used in carefully qualified ways, certainly not as blanket positions on the 'rights of the unborn.' While making a clear distinction between women's right to reproductive autonomy and the imposition of reproductive harms, this case is one in which incarceration inflicts reproductive harms on a woman under conditions of custody. It is also to be borne in mind that she was arrested in early pregnancy and spent two months in jail. 'Causing' harm therefore cannot be calculated in terms of its immediate and proximate relationship to the 'harm', which also need not be limited to miscarriage, but must extend to any form of reproductive morbidity that may occur through her pregnancy and post-natal/post-partum condition. It is also harm that casts a shadow on her enjoyment of 'reproductive futures,' to borrow from Olufemi. To consider its effects as limited to this disaggregated episode of incarceration that spanned two months of her pregnancy would be a travesty of justice. This is the 'humanitarian ground' that unfolds before the law in Zargar's case.
Right to Privacy & International Law
This is as far as the specific consideration of pregnant women in custody is concerned. Religious personal laws and property laws are deeply patriarchal, reify women and speak of the rights of the unborn (including those not conceived or even contemplated). It is far from productive for our present purposes, therefore, to explore the rights of a pregnant woman through that route, as it is structurally inadequate for building a case of reproductive freedoms and justice. It is no secret that these laws are extremely discriminatory on grounds of gender, and courts have deliberated at length in order to free up spaces for women to exercise autonomy in limited ways in customary spaces of marriage, family and community.
We need instead to place the right to reproductive justice in Zargar's case within the framework of the fundamental right to privacy as set out by the Supreme Court in Puttaswamy and the cases that followed and drew upon it like Navtej Johar (that decriminalized homosexuality), Independent Thought (that criminalized marital rape in the case of minors) and Joseph Shine (that decriminalized adultery). While each of these cases draw on international law, it is important to consider also the enunciation of reproductive harms in the definition of 'crimes against humanity' in the Rome Statute. Section 7(1)(g) lists the following: 'Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.' Of these, forced pregnancy and forced sterilization are reproductive harms that are part of collective and targeted violence, and genocide. In a case of persecution by incarceration, prenatal harms logically fall in step with reproductive harms and must be considered as such – for it marks the Article 21 line -- liberty in its suspension throws life in peril.
The question that needs to be settled through judicial deliberation is therefore, not pregnancy as a standalone fact and its relation to bail, but pregnancy as embedded in the larger field of the gendered tropes of personal autonomy, freedom from surveillance, and the right of minorities to dignity, personhood and citizenship as set out in the Preamble to affirm the non-negotiable right to dignity of all persons, eschewing pro-natalist, homophobic, patriarchal reasoning. In this scheme, it is immaterial that till this time pregnancy has not been a ground for bail. The Puttaswamy court, we believe, changed this forever through its deliberative reasoning, resurrection of dissents and its performance of constitutional insurgency.
The question before us – citizens and courts alike – is, why should pregnancy not be a valid ground for bail? Does the denial of bail to a pregnant woman not amount to disproportionate and discriminatory treatment under the constitution? Should reproductive harms not be a consideration both in the matter of pre-trial custody and in the matter of bail – and more generally in the matter of sentencing?
PANDEMIC VULNERABILITIES, PANDEMIC JURISPRUDENCE
The COVID 19 pandemic is not the first time pandemic vulnerabilities and their intersection with sexual and reproductive justice has been brought before courts. We cannot but help recall Naz Foundation, which asserted the need to radically transform the law in order to ensure the survival, life and dignity of persons irrespective of gender and sexual orientation. The demand for the decriminalization of homosexuality was brought before the court in the context of the HIV/AIDS pandemic, urging the court to recognise the exceptional vulnerability faced by LGBTQI+ persons in India criminalised by Section 377 IPC. Arbitrary and illegal arrest and detention on the one side, access to health care, treatment, life, liberty and fulfilment on the other. When faced with the choice, the Naz court stood on the side of life and liberty with dignity and the grant of full sexual and reproductive justice to all persons.
To this end, the Delhi High Court has before it, its own ruling on intersectional justice in times of a pandemic, that then extend to normal times, setting up in the process, new thresholds for the normal. Safoora Zargar's case, like Naz, is a case of the threat to life and liberty via reproductive harms aggravated by pandemic conditions. It is neither coincidental nor accidental nor inadvertent that Zargar was arrested when the COVID 19 lockdown had just been declared. It was also not an accident that she was arrested when she was pregnant, because the investigating officers who interrogated her for seven hours prior to her arrest were informed of her pregnancy; when they re-arrested her after she secured bail the first time, they knew she was pregnant; when they opposed her bail in the Patiala House court in Delhi as well they knew. The 'humanitarian grounds' conceded in the Delhi High Court were looming large over each of these prior moves by the state. What this then amounts to is disproportionate punishment even before the trial has commenced. This is perhaps one of the things Professor Baxi alludes to when he uses the phrase 'pandemic of impunity' (2013).
Be that as it may, both in terms of pandemic jurisprudence and personal autonomy, we have a line of reasoning inaugurated by Naz, reiterated by Puttaswamy and sealed by Navtej Johar. Dignity, personal autonomy and reproductive justice lie at the core of full personhood and full citizenship. Finally, we have an unfinished task before us. The Puttaswamy court pointed in the direction of dismantling the 'pandemic of impunity' through its resurrection of dissents in cases of state impunity. But we await its reiteration, realisation and consolidation, especially in the cases of the arrests of other peaceful resisters against the CAA and in the case of those arrested under the UAPA – all of whom are being subjected to disproportionate punishment endangering their lives right under the protective umbrella of the Puttaswamy ruling.
(Kalpana Kannabiran is Professor & Director at Council for Social Development, Hyderabad)
Baxi, Upendra, 2013. 'Foreword.' In Vahida Nainar and Saumya Uma, eds. Pursuing Elusive Justice: Mass Crimes in India and Relevance of International Standards. New Delhi: Oxford University Press.
Olufemi, Lola 2020. Feminism, Interrupted: Disrupting Power. London: Pluto Press.
'In Considering Bail for a Pregnant Woman, the Personhood of Her Fetus Has to Be a Factor.' The Wire. https://thewire.in/law/in-considering-bail-for-a-pregnant-woman-the-personhood-of-her-fetus-has-to-be-a-factor. Accessed on 26 June 2020.
Mignolo, Walter D. and Catherine E. Walsh, 2018. On Decoloniality: Concepts, Analytics, Praxis. Durham: Duke University Press.
Nainar, Vahida 2013. 'Crimes against Humanity in India: Towards a Legal Understanding,' in Vahida Nainar and Saumya Uma, eds. Pursuing Elusive Justice: Mass Crimes in India and Relevance of International Standards. New Delhi: Oxford University Press.
Rathore, Aakash Singh, 2019. Ambedkar's Preamble: A Secret History of the Constitution of India. New Delhi: Penguin Books.
Independent Thought v. Union of India MANU/SC/1298/2017.
Joseph Shine v. Union of India AIR 2018 SC 4898.
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 [Puttaswamy].
Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
Naz Foundation v. NCT of Delhi 2009 (160) DLT 277.
Roe v. Wade 410 U.S. 113 (1973).
 Section 7(2)(g) of the Rome Statute of the International Criminal Court defines the crime of 'Persecution' as 'the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.' See Vahida Nainar, 2013, p. 387.