In 2016, Shahana, a four-month pregnant, sick, undertrial prisoner from the Byculla Jail, Mumbai, petitioned for an abortion before a civil and sessions court judge visiting the premises. She was desperate because of her failing health and having a five-month-old infant with epilepsy to take care of. The judge forwarded Shahana’s request to the Bombay High Court, which then took suo motu cognisance and pronounced a landmark judgment on the abortion rights of incarcerated women.
Earlier, in 2013, Hallo Bi, a woman forced into prostitution and accused of killing her pimp, was brought into custody in a pregnant condition. On the day of her hearing, she declared in open court that the pregnancy was a result of rape and she wanted to terminate it. The Madhya Pradesh High Court gave her the permission to terminate the pregnancy.
While one is in awe of the courage of these women who overcame systemic bias and adversity, the question is why were they forced to go to court when there is a law guiding abortions within a defined framework?
Fifty-four years after the passage of the Medical Termination of Pregnancy Act, 1971, this critical health need remains controversial and restricted. The United Nations Population Fund’s State of the World Population Report 2022: Seeing the Unseen — the case for action in the neglected crisis of unintended pregnancy revealed that 67% abortions in India are unsafe, with nearly 8 reported deaths every day.
Unlike some countries where abortions are criminalised and heavily restricted, India has a progressive law that permits them under broad circumstances. Most privileged women can access them in private hospitals. They may face stigma but fare better than most marginalised and underprivileged women who have to suffer the much greater ignominy of accessing abortion at overburdened government hospitals or resorting to unsafe surgeries and over-the-counter pills and risk their lives.
Economically, socially and culturally marginalised women already navigate these barriers but hundreds of incarcerated and institutionalised women like Shahana and Hallo Bi face an added layer of marginalisation — State custody. The restriction on their movement leaves them at the mercy of officials who may be guided by prejudice and misinformation against abortion. Also ever-present are stigma and confidentiality concerns from both prison staff and the families of these women, adversely affecting their decision-making process, often against their own best interest and that of the unborn.
Given the silence around the abortion rights of women prisoners, even within the discourse on prison reforms or women’s rights, it is unsurprising that the popular understanding of incarcerated women and the morality around them is shaped
by fiction alone. The impending birth of a child gives us the justification for letting a ‘fallen’ woman live; but this too is rare.
The Model Prison Manual, 2016 lists a range of services — additional food, supplements, regular check-ups, and a safe delivery — for pregnant incarcerated women. But it is silent on women who may not want to carry their pregnancies for a variety of reasons. Neither prison manuals nor the MTPA explicitly covers the abortion rights of women prisoners.
The Jharkhand Prison Manual, adopted by the state assembly in May this year, institutionalises reproductive rights in prison rules. It is the first prison department in the country to make abortion access rights-based, completely eliminating the need to go to courts for permission to terminate an unwanted pregnancy if it is within the larger abortion law framework. By explicitly addressing a taboo subject like abortion, Jharkhand has set a precedent for other states. The message is clear: reproductive rights are human rights, and they cannot be suspended at the prison gate.
As countless people continue to strive to keep abortions safe, legal, affordable, and free of stigma, it is crucial to be reminded of the contributions of women like Shahana and Hallo Bi.
Apurva Vivek is a lawyer and the founder of Hashiya Socio-Legal Centre for Women, a Jharkhand-based organisation working on the intersection of gender, law, and policy