On the morning of Wednesday 22 November 1995, 18-year-old Rajeswari gets off the train at Arakkonam railway station in the southern Indian state of Tamil Nadu to walk to school[FN1 The court documentation on this case is available on the Indian Kanoon platform.] Although it has been a rainy month, there is no rain today and temperatures are hovering around 25 degrees. Rajeswari lives in the village of Cheeyur Colony, around 100 km away, and is a member of a Scheduled Caste, a socially disadvantaged group at the bottom of the caste system. Her father is a farm labourer. The young woman is trying hard to get an education, is a good pupil and attends grammar school.
Railway station platform in the south Indian city of Arakkonam. Source: Wikimedia Commons
On her way to school, a man called Velayutham, whom she knows from her village, persuades her to accompany him to a nearby tile-roofed building and locks her in. The next day, he takes her to Arakonam railway station from where they travel on to various places. He keeps threatening her so that she does not try to escape. On Friday 24 November 1995, Velayutham takes her to the Ramapuram district of Madras (now Chennai), where he has many friends, most of them bootleggers who distil and sell illegal arrack. On Saturday night, he rapes her for the first time. He then takes her to various suburbs of Madras and rapes her repeatedly for several weeks. On 2 February 1996, more than two months after the abduction, Velayutham and his accomplices drag her to her a nearby temple and, threatening her, tie a 'thali' around her neck signifying that she is now Velayutham's wife, although she has not consented. Fearing for her life, Rajeswari is unable to defend herself. Five days later, Velayutham begins to allow her to be raped by one of his friends and his brother-in-law. Velayutham stands guard outside the room during the rapes or is in the room taking photos. Another month passes in which Rajeswari is unable to escape her tormentors. Velayutham intends to continue prostituting her and threatens to murder her if she does not obey.
More than three months after her abduction, on the morning of 4 March 1996, Rajeswari finally manages to escape. She takes the bus back to her parents' home, where she immediately contacts the local police. In the first days after her return she realises to her horror that she is pregnant. The police do nothing, but Rajeswari and her parents refuse to give up. After numerous attempts at various police stations, around 14 days after Rajeswari's escape a senior police officer finally agrees to pursue the case. Another week passes before the interview.
While the police are investigating the crime, the young woman petitions the Madras High Court for an abortion. She asks for an order to terminate the pregnancy on the grounds that the pregnancy was the result of rape and is a danger to her mental health. Feeling her child's movements causes her great mental anguish.
At the time, women who were minors needed their father's consent for an abortion under Indian law. Women over the age of 18 needed their husband's consent. Rajeswari is over the age of 18 but unmarried, so there is no man to provide the necessary legal consent. Unmarried pregnant women were only allowed to have an abortion if they conceived as a result of rape. To be granted an abortion, the woman had to prove she had been raped. On 24 May 1996, her case was finally heard at Madras High Court. By this time, Rajeswari was 18 weeks pregnant.
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Family planning
Medical termination of pregnancy has been allowed in India since 1971. It was another 30 years before abortion became possible in Switzerland. The Medical Termination of Pregnancy (MTP) Act (1971) [FN2 https://prsindia.org/files/bills_acts/bills_parliament/2020/Medical%20Termination%20of%20Pregnancy%20Act,%201971.pdf] made it possible for married women in India to undergo an abortion up to the 12th week of pregnancy (with the agreement of a doctor) or up to the 20th week[FN3 In Switzerland abortion up to the 12th week of pregnancy was legalised for all women following a referendum in 2002.] (with the agreement of two doctors).[FN4 During her fieldwork, Andrea Abraham repeatedly came across stories of late-term abortions where measures were taken to ensure stillbirth (foeticide). However, some of the babies were born alive and even survived without neonatal intensive care.]
From the 1970s to the 2000s, women in India terminated their pregnancies for many reasons. Some married women had an abortion because they already had too many children, because they had become pregnant too soon after the last birth, for health reasons or because the baby was a girl.[FN5 S.Bandewar, "Abortion Services and Providers’ Perceptions", Economic and Political Weekly, 38/21(2003), 2075–2081. / A. Barua, R. Waghmare & S. Venkiteswaran,"Implementing Reproductive and Child Health Services in Rural Maharashtra, India. A Pragmatic Approach", Reproductive Health Matters, 11 /21(2023), 140–149. / M. Gupte, S. Bandewar & H. Pisal, "Abortion Needs of Women in India. A Case Study of Rural Maharashtra", Reproductive Health Matters, 5 /9, (1997), p.77–86.] Outside of marriage, women had abortions because their pregnancy was the result of a socially unacceptable relationship, premarital sex (even with a partner who would have made a socially acceptable husband) or, like in Rajeswari's case, rape. Some women chose to terminate their pregnancies, while others had no alternative or were forced to have an abortion.
"Abortion Clinic" (2010), a painting by Rani Jha, a feminist artist based in Madhubani, India, is a powerful depiction of the social undesirability of girls at the time. The doctor is represented by a cobra who performs abortions at the request of the parents-in-law for 5,000 Indian rupees (50 Swiss francs).
The painting "Female Infanticide" (2010) illustrates the consequences of male overpopulation resulting from the selective abortion of female foetuses. The artist portrays how gender imbalance leads to intensified competition among men seeking marriage and an increase in sexual violence against women. The men are represented by their red headwear.
The MTP Act set out the circumstances in which a medical termination of pregnancy was permitted,[FN6 Under the act, MTP is legally permitted: when the pregnancy poses a serious risk to the mother or child; when the pregnancy results from rape; when contraception fails in the case of married women (not in the case of unmarried women).] and by whom it could be performed. Married women were allowed to have abortions:
- if the pregnancy posed a serious risk to life or health of the mother or the unborn child;
- if they were raped outside of their marriage;
- or if their contraception failed.
Under the MTP Act, women under the age of 18 and women with a cognitive impairment were only permitted to terminate their pregnancy with the consent of their parents or guardians. In addition, doctors had to report a pregnancy of an unmarried pregnant woman under the age of 18 to the police. Unmarried women were only legally allowed to have an abortion if the pregnancy was the result of rape. This meant that women like Rajeswari could only have an abortion if they could prove they had been raped. The authority to prescribe and perform abortions lay with the medical professionals. It was therefore they who determined which women fulfilled the criteria for an abortion and which did not, and thus had the power to decide how the MTP Act should be applied.[FN7 S. Bandewar, "Abortion Services and Providers’ Perceptions", Economic and Political Weekly 38/21 (2003), pp.2075–2081.]
In addition to the government-registered abortion clinics, there were a wide variety of uncertified providers.[FN8 S. Saha, R. Duggal & M. Mishra, Abortion in Maharashtra. Incidence, Care and Cost, CEHAT 2004.]
https://www.reddit.com/r/indianews/comments/vk9ezi/1970s_advertisement_in_india_highlighting/
The MTP Act was introduced in connection with government efforts since the 1960s to control India's rapidly growing population. In the 1970s to 2000s, contraceptives were available free of charge in the federal state of Maharashtra as a measure to slow population growth. They were not used as widely as the government had hoped, however. Government abortion clinics carried out abortions free of charge, but pressured women who used their services to take permanent contraceptive measures or undergo sterilisation. This pressure did not exist in the private sector or among illegal providers, but abortion was sometimes associated with high costs.[FN9 M. Gupte, S. Bandewar & H. Pisal, "Abortion Needs of Women in India: A Case Study of Rural Maharashtra", Reproductive Health Matters, 5/9 (1997), p. 77–86.]
The popularity of abortion was thus linked to the push for population control in India that peaked during the period known as "The Emergency" (1975–1977) under Prime Minister Indira Gandhi's leadership. This era saw the implementation of nationwide measures including forced sterilisation of both men and women,[FN10 The film Something Like War (1991) by Indian filmmaker Deepa Dhanraj documents the state's intervention in family planning and subsequent forced sterilisations of women and men.] which Indira Gandhi vehemently defended as a social necessity in a speech on 22 January 1976:
"We must now act decisively and bring down the birth rate speedily. We should not hesitate to take steps which might be described as drastic. Some personal rights have to be kept in abeyance, for the human right of the nation, the right to live, the right to progress."
Poster of a medical technology company from the 1970s to raise awareness of abortion as an option with the slogan "Abortion is legal. Abortion is safe. Abortion is a very simple procedure if you contact your doctor early."
India's population control policy also inspired postage stamp designs on the theme of family planning which served as a medium for public awareness campaigns.
In response to these coercive state measures, a vehement feminist counter-discourse emerged in India, focusing on reproductive rights and self-determination. From an Indian feminist perspective, abortion was supported as a measure against unwanted pregnancy that should be accessible to all women and especially to girls and women like Rajeswari who became pregnant out of wedlock as a result of rape. Pritha Somnath (name changed),[FN12 Andrea Abraham and Asha Narayan Iyer interviewed Pritha Somnath in Mumbai at the end of March 2023.] a social worker in the state of Maharashtra, recalls her work with pregnant minors in the 1990s:
"If there was a possibility of an abortion, our first port of call wasn't a shelter [institution for women and children in distress]. We organised it ourselves. Because, from a feminist perspective, we don't want anyone else to persuade us to have a child. For a child to have a child is problematic in itself. We worked directly with the parents and the hospital."
Example of a 1987 anthology of works by Indian feminist writers on women's rights relating to the body and reproduction.
Barriers to abortion for women
pregnant out of wedlock
The restrictions imposed by the MTP Act made it difficult or impossible for women who become pregnant out of wedlock to access abortion clinics. As Pritha Somnath remembers:
"In India, every woman who wanted to have an abortion needed her husband's consent. What if you don't have a husband? If your boyfriend isn't willing to pretend to be your husband, what are you going to do? The women were so helpless. They didn't know what they should do with their bodies. The abortion was illegal because they had no one to sign for them. If you are only one week over the 12 weeks, nobody [no doctor] will take the risk of doing it in a state hospital. But they will do it in a centre, even if it's a week longer."
A study on abortion in the state of Maharashtra[FN13 S. Bandewar, "Abortion Services and Providers’ Perceptions", Economic and Political Weekly, 38/21 (2003), p.2075–2081.] also showed that not all doctors were prepared to perform abortions on women who became pregnant out of wedlock. They feared social sanctions if they helped a woman with a pregnancy that was deemed illegitimate. For example, 113 of the 130 doctors surveyed refused to perform an abortion on such women if they came to the practice unaccompanied by someone who could legally consent to the procedure (guardian) or without a guardian's signature. Coupled with the limited options available to women in rural areas, this made abortion difficult to access and forced some women to resort to illegal abortion clinics.[FN14 B. Ganatra & S. Hirve, "Induced Abortions among Adolescent Women in Rural Maharashtra,India", Reproductive Health Matters,10/19 (2022), p. 76–85. / S. Saha, R. Duggal & M. Mishra, Abortion in Maharashtra. Incidence, Care and Cost. CEHAT, 2004.] Often a woman was already at a very late stage in her pregnancy. Some clinics adjusted the price of abortion according to the number of weeks of pregnancy.[FN15 M. Gupte, S. Bandewar & H. Pisal, "Abortion Needs of Women in India. A Case Study of Rural Maharashtra", Reproductive Health Matters, 5/9 (1997), p. 77–86.] Although such clinics provided relief to many women facing social hardship, the women risked health complications or even death, as the illegal clinics were run with varying degrees of professionalism. In addition, unsuccessful abortions could impact the health of the children who survived.[FN16 N. Dabir, A Study of a Shelter Home for Women in Distress. SNDT Womens University, Bombay, 1994. / L. Visaria, V. Ramachandran, B. Ganatra & S. Kalyanwala, "Abortion in India. Emerging Issues from Qualitative Studies", Economic and Political Weekly 39 (46/47) (1994), p. 5044–5052.]
Back to Rajeswari
When Rajeswari's case is heard in the Madras High Court on 24 May 1996, time is of the essence as she is already 18 weeks pregnant. Even though she has been able to prove she was raped, she only has two weeks left to secure the opinion of two doctors and arrange an abortion. Because the perpetrators confessed and Rajeswari's pregnancy is considered an unreasonable psychological burden, the court rules in the young woman's favour and she is permitted to go to a hospital for an abortion on the same day.
