Meet Mumbai advocates fighting against abortion law to bring women justice

Rachita Padwal and Anubha Rastogi both reiterate the agency women must have over their own bodies—a thought that guides their work every day. Pic/Atul Kamble

Time is of the essence in these cases," Anubha Rastogi, an advocate at the Bombay High Court, says at her Fort office. Outside, as the clock strikes two, the bells of the Rajabai Tower toll, underscoring the immediacy she speaks of.

Earlier this week, Rastogi and her associate Rachita Padwal represented a woman who wished to end her 26-week pregnancy. Following a medical board's assessment about the woman's mental and physical fitness to undergo the procedure, the HC passed an order allowing the termination. But the lawyers' work didn't end there; they made additional suggestions about medical boards themselves - typically comprising a gynaecologist, radiologist, paediatrician, among other experts - and the lack of awareness around them.

These boards are a fixture in medical cases where pregnant women seek abortions post the 24-week mark, after past rulings and guidelines from the Ministry of Health and Family Welfare. "But they haven't been set up in many places. Often, doctors in governmental facilities and private practitioners don't know where to send these patients," Padwal rues. The duo hopes that their suggestions will lead to change, making information about these boards accessible, especially at the grassroots.

Clad in a crisp block printed black and white saree, Rastogi excitedly talks about her work as a special prosecutor at SEBI. But ever since her college years - when she attended classes on criminal law - it was human rights and women's issues that moved her. This has shaped how she has viewed her work over the last 20 years. "The responsibility of a welfare state in a public health system is to help us make informed decisions by providing services which are affordable," she explains. Padwal, who has been working with the senior advocate for the past two years, began taking a particular interest in abortion rights when she witnessed progressive rulings - particularly a case where a survivor of domestic violence was given a favourable ruling after being let down by care providers.

Over the years, Rastogi has tracked the number and nature of Medical Termination of Pregnancy (MTP) Act cases - the first of which was filed at the Bombay HC in 2008. "The MTP Act has existed since 1971, but the vast numbers of women approaching the courts in cases of foetal anomalies is a newer phenomenon," Rastogi explains. It was in August 2020 that she realised that 600 cases had been filed across the country.

There are no easy answers to explain these numbers, but what emerges is the widely held notion that court orders are necessary, compelling those with eight-week and 12-week pregnancies to take the legal route, too. "Petitioners come to court because the law isn't permitting them. What they get instead is a medical opinion," Rastogi says, emphasising that this could be avoided in many cases if a board was consulted instead. The senior advocate is of the opinion that the vagueness of the law has its own pros and cons; on the one hand, it allows medical care providers to base their decisions on the condition of the individual. On the other, it can lead to concerning interpretations.

During our hour-long conversation in Rastogi's pocket-sized office, Padwal and the senior advocate bring up the matter of agency over one's own body. "Abortion has been conditionally legalised in India for 52 years, which puts us in a better place than countries where laws are restrictive and shaped by religion. But it is still not a right… For crimes like sexual assault and acid attacks, we had to demand laws to prevent and punish them. But the law on abortion was given to us," Rastogi says.

Padwal puts it another way: The State, which does not typically have a say in other surgeries, involves itself greatly in abortion cases. "Records of even those women who approach a doctor before the 20-week mark are maintained by the government. This is not the case with other surgeries," she says.

Though the duo sees the most recent case they worked on as a step forward in gender justice, they assert there is much to be done. "Courts set precedents with each ruling. There's much to be done in terms of the language used. The judgements, the ones that are favourable, are sometimes identical, when instead they could be taking the conversation of rights over our bodies forward," Rastogi says.

600
No. of cases filed across India by women seeking abortions