Reforming competition law for the digital age

Source: Hindustan Times dated 18.02.2020

-- Ananth Padmanabhan (Dean, Academic Affairs, Sai University and Visiting Fellow,

Centre for Policy Research)

It’s important to address the issue of data dominance that an acquisition in the tech industry could throw up.

At a recent event, the chairperson of the Competition Commission of India (CCI) cautioned against the creation of large digital platforms and the agglomeration of data in the hands of a few entities. However, the extent to which this is a policy concern merits careful evaluation, keeping in mind the fact that political considerations have long dictated the government’s response to e-commerce players and other digital platforms. Any attempt to reform competition law for the digital age must instead focus on the actual cause for harm and then tailor remedies that address this cause.

Amazon’s brick-and-mortar competitors, politically relevant and well-organised through associations such as the Confederation of All India Traders, have for long complained about deep discounting practices. The technology behemoth has also been accused of using its vast data insights to directly compete with sellers while distributing their products on its platform. This erosion of platform neutrality had earlier influenced key choices in India’s Foreign Direct Investment policy, including a clear preference for marketplace models over inventory-based models. Subsequently, in February 2019, the Department for Promotion of Industry and Internal Trade published a draft national e-commerce policy advocating drastic measures such as restrictions on cross-border data flows and mandating big tech companies to open their data for the benefit of Indian startups.

These responses have invited criticism on the basis that they are more about knee-jerk politics than well-informed policy. The recent call for reform of antitrust law and competition policy must be appreciated with these developments and criticisms in the background.

The Indian Competition Act 2002 has broadly operated along the lines of antitrust law in the United States, which is to say that its foundations have been rooted in arguments of economic efficiency. These arguments that trace their origins to Robert Bork’s The Antitrust Paradox (1978) did not factor in the evolution of data as an economic asset. For Bork, anti-competitive behaviour meant practices that resulted in price distortion.

Data-driven innovation, on the other hand, is centred on identifying efficiency gaps in traditional business models and fixing them using an assortment of data mining and predictive analytics. In the course of advancing efficiency, digital platforms also gain from network effects. In simple terms, more the number of consumers and sellers transacting over a platform, the more essential and indispensable the platform becomes to both sides. Apparently, consumers benefit from this phenomenon as platforms vie to get them on board. However, existing sellers would stand to be in an unequal bargaining position with the digital platform. Moreover, startups would find it difficult to compete with dominant technology platforms because the latter already control vast amounts of data. Competition law has been struggling for a while to capture this.

Before the present competition law came to be, the practice was to clamp down on businesses that expanded in size and scale. This was motivated by the philosophy that big is evil. The Competition Law Review Committee, chaired by Injeti Srinivas, submitted a report to the ministry of corporate affairs in July 2019, which echoes this philosophy. In order to tackle big ticket digital platform acquisitions, the report advocates scrutiny of mergers above a certain deal value over the existing practice of scrutinising mergers based on asset value. This is on account of many digital platforms falling short on assets and being valued instead for their network and data wealth.

It is true that many of the bigger digital platforms have wiped out competition by simply acquiring smaller platforms. Yet, experience suggests that many of these acquisitions eventually fail, leading to heavy losses for the acquirer. For example, Flipkart recently shut down the online retail platform Jabong that it had earlier acquired for $70 million.

Decisions on firm acquisitions should be left to the acquirer and any ex ante competition scrutiny based on deal value must be avoided. Instead, real reform should address the truly worrisome cause — the data dominance that any acquisition in the tech industry could potentially result in. Even this idea of data dominance is too broad, with room for further refinement and granularity in competition oversight through merger control. Big data analytics is usually thought of as deriving value from four Vs; veracity, velocity, volume and variety of data. Of these, the enhancement of data variety on account of an acquisition is probably most harmful, as it permits technology platforms to extend their dominance to other sectors.

CCI must, therefore, benchmark the variety of data in the hands of the acquirer, compare that with the variety of data in the possession of the acquired, and then evaluate whether post-acquisition, the variety of data in the control of the merged entity or acquirer firm would be such that it can result in long-term undesirable consequences on data-driven innovation, including excessive centralisation of power. This is just one instance of fitting the remedy to the cause, and similar mindfulness to the actual harm must dictate any future reform of competition law to suit the digital age.

How to treat a child witness

Source: Indian Express dated 17.02.2020

-- Sadaf Modak

In the Bidar school sedition case, spotlight has fallen on reports that police questioned children . What are the international conventions for questioning children? What do Indian laws say on this, and on child witnesses?

In the two weeks since police slapped sedition charges on a school in Bidar, Karnataka, where a play critical of the Citizenship Amendment Act (CAA) had been staged, much of the spotlight has been on reports that the police questioned the children.

The Karnataka State Commission for Protection of Child Rights has pulled up the district police for violations, including repeated questioning of the children. Additionally, a public interest petition has been filed in the Karnataka High Court seeking a departmental inquiry against the policemen who allegedly questioned the children of Shaheen School, aged between 9 and 12, without the consent of their parents or guardians, and also video-recorded them without consent. The PIL referred to a statement by the Shaheen Alumni Association to say that the children were questioned by policemen carrying guns, which created an “intimidating and fearful environment”.

The PIL has asked for guidelines to be issued to police regarding interrogation of minors in criminal proceedings in accordance with the Juvenile Justice Act and United Nations resolutions. How do the law in India and resolutions of the UN address the issue of questioning children? What are the safeguards for children being made witnesses?

What are the international conventions on children in these situations?

India has been a signatory to the Convention on the Rights of the Child since 1992, which was adopted by the General Assembly of the United Nations in 1989.  “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration,” the Convention states.

In 2009, the ‘United Nations: Justice in Matters involving Child Victims and Witnesses in Crime: Model Law’ provided a more specific set of guidelines in the context of child witnesses.  These guidelines recommend that authorities treat children in a caring and sensitive manner, with interview techniques that “minimise distress or trauma to children”.

They recommend specifically that an investigator specially trained in dealing with children be appointed to guide the interview of the child, using a child-sensitive approach. “The investigator shall, to the extent possible, avoid repetition of the interview during the justice process in order to prevent secondary victimisation of the child.” Secondary victimisation is defined as victimisation that occurs not as a direct result of a criminal act, but through the response of institutions and individuals to the victim.

Child rights activists say that children repeatedly questioned by authorities while in police uniform, without the presence of their parents, can lead to such trauma.

How do Indian laws address the issue of child witnesses?

Under Section 118 of the Indian Evidence Act, 1872, there is no minimum age for a witness. Children as young as three years old have deposed before trial courts in cases of sexual abuse. Usually during a trial, the court, before recording the testimony of a child witness, determines his or her competency on the basis of their ability to give rational answers. A child is usually asked questions like their name, the school they study in, and the names of their parents to determine their competency.  If the child is very young and does not understand the significance of taking an oath to speak the truth — which is administered to each witness before testimony — the judge or the staff explain to the child that he or she should speak the truth, thinking of whichever God they believe in.

Trials involving children as witnesses have primarily been in cases of child sexual abuse. Other criminal cases where children are examined as witnesses have included those where a parent is the victim of violence at home, in the sole presence of the child.

Have courts dealt with how child witnesses are to be treated?

The Delhi High Court has come up with guidelines for recording of evidence of vulnerable witnesses in criminal matters. A vulnerable witness is defined as anyone who has not completed 18 years of age.

Focusing primarily on child witnesses giving testimonies that are recorded in court, the Delhi High Court guidelines underline the importance of the criminal justice system needing to respond proactively, sensitively, and in an age-appropriate manner when dealing with children. “The lengthy process of navigating the formal and adversarial criminal justice system can affect the vulnerable witnesses’ psychological development,” the guidelines say. They allow for a facilitator for a vulnerable witness to be appointed by a court for effective communication between various stakeholders including the police.

In 2016, the Delhi High Court said that while children can be pliable, their testimony can be considered after careful scrutiny.

What are the laws pertaining to the  questioning of children?

JJ Act: The primary legislation in the country pertaining to children is The Juvenile Justice (Care and Protection of Children) Act, 2015. The Act does not provide guidelines specifically relating to questioning or interviewing of children as witnesses. The Act’s very preamble, however, says that a “child-friendly approach in the adjudication and disposal of matters in the best interest of children” must be adhered to. This means adhering to general guidelines pertaining to the juvenile justice system — for instance, for the police to not be in their uniform while dealing with children. It also requires that interviews of children be done by specialised units of police who are trained to sensitively deal with them.

The Act prescribes that a Special Juvenile Police Unit is to be constituted by the state government in each district and city, headed by a police officer not below the rank of Deputy Superintendent of Police, and including two social workers, at least one of whom must be a woman, and both of whom should be experienced in the field of child welfare. Their work includes coordinating with the police towards sensitive treatment of children. The Act also provides for a Child Welfare Committee in every district to take cognisance of any violations by the authorities in their handling of children.

POCSO Act: Apart from the Juvenile Justice Act, The Protection of Children from Sexual Offences (POCSO) Act, 2012 has specific guidelines regarding interviewing children as witnesses. While it pertains to child sexual abuse victims, child rights activists say the guidelines are a framework for all children who are being interviewed by the police as witnesses. The Act states that interviews should be conducted in a safe, neutral, child-friendly environment, including allowing for them to be done at homes. It says a child should not be made to recount the incident in question multiple times. The Act also allows for a support person, who could be trained in counselling, to be present with the child to reduce stress and trauma.

In 2018, the Bombay High Court had pulled up the police for repeatedly summoning a three-year-old to the police station for recording his statement in a case of alleged sexual abuse of his classmate; a school trustee was an accused in the case.

Tracing the journey, and flaws, of the surrogacy bill

Source: Hindustan Times dated 17.02.2020

-- Prabha Kotiswaran (Professor of Law and Social Justice at King’s College London) and Sneha Banerjee  (Postdoctoral Research Fellow at the Centre for Women’s Development Studies)

The government has tried to regulate surrogacy for over a decade. Starting with the permissive 2005 guidelines of the Indian Council for Medical Research, the government has proposed increasingly restrictive bills in 2008, 2010, 2013 and 2014 and has, through notifications of the ministry of home affairs, sought to exclude prospective parents on the basis of marital status, sexual orientation and citizenship. These efforts culminated in the Surrogacy (Regulation) Bill, 2016.

Said to reflect the “ethos of the Indian people”, the bill, unlike in the past, dealt exclusively with surrogacy rather than with Assisted Reproductive Technology (ART) broadly. It banned commercial surrogacy, only permitting altruistic surrogacy, that too performed by a close relative of the couple, where the latter bears the medical expenses and insurance costs.

The prospective parents had to be Indian citizens (Overseas Citizens of India, or OCIs, were excluded), and married for at least five years with a medical indication of infertility. The bill’s provisions would be implemented by an elaborate institutional machinery, backed up by stringent punishment.

When introduced in the Lok Sabha in 2016, it was referred to a Parliamentary Standing Committee (PSC), which, in its August 2017 report, practically reversed every key feature of the 2016 bill and recommended to empanel surrogates rather than recruit a close relative and allow for compensated surrogacy, along with a broader insurance cover. Live-in couples, divorced women, widows, non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and OCIs could avail of surrogacy and the period of proven infertility was to be reduced to one year. Importantly, it called for a comprehensive, legally binding agreement between the prospective parents, the surrogate and the clinic, which would be registered with the State.

Despite these recommendations, a largely unmodified version of the 2016 bill, namely, the Surrogacy (Regulation) Bill, 2019 (SRB), was passed by the Lok Sabha in August 2019. When presented to the Rajya Sabha, it was referred to a select committee, which submitted its report on February 5, 2020.

The select committee recommended involving a “willing woman” to perform surrogacy rather than a close relative, removed the need to demonstrate five years of proven infertility, increased insurance cover for the surrogate to three years, expanding it to include medical expenses, and allowed widowed and divorced women and PIOs and OCIs to pursue surrogacy. Significantly, it emphasised that the ART bill be passed before the SRB, given the medically-mediated nature of surrogacy.

Where the select committee differs from the PSC is its preference for altruistic surrogacy.

A selfless surrogate was performing a “social and noble act of highest level”, setting an example of a “model woman” in society on par with “normal mothers”. Correspondingly, the select committee recommended that surrogates be allowed insurance coverage, medical expenses and “prescribed expenses” to cover the costs of food and maternity wear to ensure their well-being and upkeep. There is no further elaboration on what these expenses could include (unlike in the PSC report).

Herein lies an interesting paradox. Like the proponents of the SRB, the select committee believes that the epitome of Indian motherhood is to produce children for the market, with “divine warmth and affection”, irrespective of the detriment to the well-being of oneself and family. Or it might be that while the committee has valourised free reproductive labour in a tribute to altruism, in reality, the inclusion of the term “prescribed expenses” leaves the door half open for some form of compensation, especially since the arrangement is not restricted to “close relatives”.

While the SRB seemed to frustrate the very possibility of surrogacy through stringent eligibility criteria for both the prospective parents and the surrogate, with restricted payments (medical expenses and insurance coverage) and carried out only for the domestic market, the select committee expands the eligibility criteria and allows OCIs and PIOs to pursue surrogacy, thereby opening up the domestic market.

But, it expects that surrogates in the hopes of being “role models” for society, will carry a child through term for strangers without any compensation even when wealthy OCIs and PIOs commission surrogacy. Who would such “willing women” be and how will the government prevent their exploitation and forced labour given that begar and unpaid labour violate Art. 23 of the Constitution?

The recommendations of the select committee on the sheer unworkability of the SRB as passed by the Lok Sabha are very welcome. The government now has the reports of two parliamentary committees wherein the collective wisdom of more than 50 members of Parliament has demanded a fundamental overhaul of the SRB.

Yet, critical aspects of surrogacy regulation remain untouched — that of valuing surrogates’ reproductive labour and non-discriminatory access to surrogacy, irrespective of marital status (as in the case of adoption).

Although stringent punishments for offences are built into the SRB, in the absence of robust implementation mechanisms, they are likely to result in fewer convictions, thereby producing shadow markets for commercial surrogacy. If passed, glaring omissions may well tie-up the SRB in constitutional litigation for years, rendering uncertain (once again) the legal landscape for those who harbour the hope of making families through surrogacy.

Bail amount, legal aid: How 1,000 Maharashtra inmates got help in 2019

Source: Hindustan Times dated 17.02.2020

-- Faisal Tandel

Around 1,000 inmates, who were locked up in 10 jails across the state owing to lack of access to legal aid or financial constraints to pay surety, have been released on bail between January and December 2019, thanks to a joint initiative between the prisons department and the Azim Premji Philanthropic Initiatives (APPI). The project — the result of a three-year memorandum of understanding (MoU) between the prisons department and APPI on June 28, 2018 — was undertaken in order to tackle overcrowding in jails across the state.

In October 2019, HT had reported that although the 60 prisons across the state had a capacity of 24,032 inmates, the current population was 50% higher, at 36,195.

The 1,000 inmates were released from jails in Nagpur, Kalyan, Latur, Amravati, Akola, Arthur Road, Thane, Byculla, Yerwada in Pune and Taloja.

To keep a tab on the initiative, a project implementation and monitoring committee — under the chairmanship of Sunil Ramanand, additional director of general, prisons — was formed in September 2019.

“Our aim is to decongest the jails in Maharashtra. The initiative is reaping good results. The NGO members periodically visit the jails and take a review of the inmates and accordingly help them get legal access. It is a continuous process. In a year or two, we hope to see a positive change,” said Ramanand.

The prisons department and APPI have roped in implementation partners such as Prayas, a field action project of the Tata Institute of Social Science (TISS); Fair Trial Fellowship project by the National Law University (NLU), Delhi; and VARHAD, an NGO based in Amravati.

Prayas, which played a significant role in the signing of the MoU between APPI and the home department, works in six prisons at Arthur Road, Byculla, Thane, Kalyan, Taloja and Latur. NLU Delhi is working in Yerawada Central Jail in Pune and Nagpur Central Jail, while VARHAD is working in Amravati and Akola prisons. John Jacob, co-ordinator of APPI, refused to comment on the project citing company policy.

Professor Vijay Raghavan, of the Centre for Criminology and Justice at TISS, who is the project director of Prayas, said, “A legal consultant and social worker have been appointed for each jail. The legal consultants are enrolled under District Legal Services Authority (DLSA). They identify the undertrials in need of legal aid and also those who’ve been granted bail but continue to languish in prisons owing to lack of surety or cash amount. The legal consultants then write legal aid applications on their behalf and expedite the appointment of legal aid lawyers by coordinating with DLSA,” said Raghavan. “They also follow up with the appointed lawyers to ensure they attend court dates and also submit bail applications, or modification of bail applications,” he said.

Between December 2018 and December 2019, Prayas members reached out to around 3,858 inmates across the six jails, wrote 1,893 applications to DLSA, and helped 701 undertrials get bail and 51 get bail on personal bond. It has helped in 15 acquittals and 383 convictions. Raghavan said they also regularly organise workshops and training sessions for the legal aid lawyers to motivate and update them.

Ravindra Vaidya, founder-president of VARHAD, said he’s been working with the Amravati Central Jail for the past six months. “We are going to start work in Akola jail soon. We have six people in our team who visit the jail and identify problems of inmates. In most of the cases, we found the inmates are suffering in jail owing to incompetent lawyers or for financial reasons. Once we meet an inmate, we first study the case and then visit his house and get details about him, for instance, if he is financially weak or needs an advocate. Also, if there is an advocate, then we get a follow-up and bridge the communication gap between the family and the advocate,” he said. “In the past six months, we have reached out to 150 prisoners and helped 50 inmates get bail,” he added. Dr Anup Surendranath, assistant professor of law, executive director, Project 39A of NLU, Delhi, said that from January to December 2019, their team had reached out to around 2,406 inmates in Pune and Nagpur jails, and helped 1,322 inmates get legal aid. Around 228 inmates were released on bail; 63 inmates got acquittal; 92 inmates were convicted; six inmates got their sentences reduced; and 123 cases were withdrawn by the complainants.

Yogesh Desai, deputy inspector of general (DIG), Pune, said the initiative is basically aimed at improving communication between the inmate’s family and the advocate. “We have also noticed cases wherein inmates don’t even have their Aadhaar cards or the family is not aware about them being in prison. In such cases the legal aid team reaches out to the family and continuously follows up to help the prisoners get bail. This has helped reduce the stress on inmates.”

Explained: Fine-tuning the Surrogacy Bill

Source: Indian Express dated 11.02.2020

-- Abantika Ghosh

A Select Committee has given its report on the Surrogacy Regulation Bill, recommending that surrogacy should not be restricted to close relatives. A look at the provisions and journey of the Bill since 2016.

In a recent report, a Select Committee of Parliament has recommended that the contentious clause limiting surrogacy only to “close relatives” be removed from the Surrogacy (Regulation) Bill, 2019, to make the benefits of modern technology more easily available to infertile couples. A look at the genesis of the Bill, its provisions and why the current report could signal some progressive amendments in the Bill:

What are the provisions of the Surrogacy (Regulation) Bill?

The Surrogacy Bill proposes to allow altruistic ethical surrogacy to intending infertile Indian married couples in the age groups 23-50 years (women) and 26-55 years (men). The couple should have been legally married for at least five years and should be Indian citizens. They cannot have a surviving child, either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure. The Bill has already been scrutinised once earlier by the Standing Committee on Health and Family Welfare. It requires surrogacy clinics to be registered, and national and state surrogacy boards to be formed, and makes commercial surrogacy, and abandoning or disowning a surrogate child punishable by imprisonment up to 10 years and a fine up to Rs 10 lakh.

It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance for repeatedly becoming surrogate mothers to supplement family income.

What changes has the Select Committee suggested?

The Select Committee chaired by BJP Rajya Sabha MP Bhupender Yadav recommended that the “close relatives” clause should be removed, and any “willing” woman should be allowed to become a surrogate mother provided all other requirements are met and the appropriate authority has cleared the surrogacy. It has strongly backed the ban on commercial surrogacy.

It has also recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent, and the need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive. It has recommended that persons of Indian origin should be allowed to avail surrogacy services.

The committee has not, however, recommended expanding the definition of commissioning parent to include singles, either men or women. This means people like Tusshar Kapoor, Karan Johar and Ekta Kapoor, all from the entertainment industry, would still not qualify for using the surrogacy route for children. All of them have already used that route.

The Select Committee also recommended that the ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy (Regulation) Bill, 2019, so that all the highly technical and medical aspects could be properly addressed in the Surrogacy (Regulation) Bill, 2019.

What is the ART Bill?

The Assisted Reproductive Technology (Regulation) Bill has been in the making since 2008. It aims to regulate the field through registration of all IVF clinics and sperm banks, segregation of ART clinics and gamete banks etc. It also requires national and state boards to be established for the purpose of regulation of the fertility market.

The Select Committee report says: “Surrogacy is a part and parcel of Assisted Reproductive Technology (ART) and hence the Surrogacy Bill should come into force only after the enactment of ART Bill. Bringing Surrogacy Bill before the ART will be irrelevant and also create duplication of Boards. Suggestions have been received to incorporate Surrogacy Bill within the ART Bill as proposed earlier in the draft ART Bill.” The Standing Committee on Health and Family Welfare, too has “strongly recommended” to the government that the two Bills should be brought together and not in isolation.

How big is India’s surrogacy market?

Ballpark estimations by the Indian Council of Medical Research (ICMR) put it around 2,000-odd babies per year through commercial surrogacy — when a woman is paid an agreed sum for renting her womb. CII figures say surrogacy is a $2.3-billion industry fed by a lack of regulations and poverty.

What happened the last time the Bill was scrutinised by a parliamentary panel?

The Bill was earlier scrutinised by the Parliamentary Standing Committee on Health and Family Welfare. That committee had recommended that compensation should be the norm and the word “altruistic” should be replaced with “compensated”. Couples — including those in live-in relationships — should be allowed to choose surrogates from both within and outside the family. Altruistic surrogacy, it observed, is tantamount to exploitation.

The “close relative” condition is open to misuse in a patriarchal setup, the committee had observed. “Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member. A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy.” Those recommendations were not accepted by the government.

So, the Select Committee has made a recommendation that the government has rejected earlier?

As in the case of the Standing Committee, the government is free to accept or reject the recommendations of the Select Committee. Many who have criticised the original Bill as archaic, however, are hopeful that the Bill may finally see some progressive amendments.

Bhupender Yadav, who chaired the Select Committee that made these recommendations, has been part of several other crucial Parliamentary Committees, including the Joint Committee on Insolvency and Bankruptcy Code, 2015, Select Committee of Rajya Sabha on the Constitution (One Hundred and Twenty Third Amendment) Bill, 2017, Select Committee of Rajya Sabha on the Enemy Property (Amendment and Validation) Bill, 2016, Select Committee on the GST Bill etc.

Amendments to abortion law are welcome: For the amendments in abortion law to be effective, medical facilities need to be expanded and women have to be made aware of their rights.

Source: Indian Express dated 10.02.2020

-- Shailaja Chandra (Former Secretary, Department of AYUSH, Government of India, and Former Chief Secretary, Government of Delhi)

The proposed Bill seeking to amend the Medical Termination of Pregnancy Act (MTP, 1971) after nearly half a century is to be welcomed. Once enacted, the upper limit for terminating special kinds of pregnancies will go up from 20 weeks to 24 weeks — this is a recognition that certain physical and mental conditions can only be identified after the fifth and sixth month of pregnancy. This approach is in line with what seven other countries — Canada, China, the Netherlands, North Korea, Singapore, the United States, and Vietnam — follow. It is based on the yardstick of “foetal viability” — the capability of the foetus to live outside the mother’s womb. The 1971 law had forced vulnerable and traumatised women in an advanced stage of pregnancy to give birth to a compromised child or seek legal redress, an avoidable process that was fraught with delays and uncertainty.

The much bigger reason to commend the proposed amendment is its recognition that even unmarried women are entitled to seek legal abortion — as a right. But this brings to the fore several ground-level issues. First, the annual number of abortions in the country is massive — over 15 million, constituting 33 per cent of the total annual pregnancies in the country. Both in urban and rural areas, there is overwhelming reliance on medical termination (as opposed to surgical methods) by ingesting pills from a kit over one to three days.

In 2015, Lancet Global Health published a study, jointly conducted by researchers at the International Institute for Population Sciences (IIPS), Mumbai, the Population Council, New Delhi and the New York-based Guttmacher Institute, which showed that a whopping 81 per cent of women relied on medical termination.

The 24-week modification will help a niche group of women who discover foetal abnormalities after 20 weeks or belong to defined vulnerable groups. Such women have access to doctors. But there are concerns about those who have no access to doctors — millions of rural women who have never had access to a safe and transparent route to abortion. Victims of incest and rape have to resort to unsafe abortions to maintain secrecy and even married women become desperate to end an unwanted pregnancy for economic reasons.

Given the social and cultural milieu in the country, it is natural for women to rely on informal providers to access abortion pills. If these pills don’t work, the woman goes to or is taken to an unqualified practitioner who usually administers an oxytocin injection, performs a D&C (dilation and curettage) and advises consulting a doctor if bleeding persists. The doctor uses a suction apparatus to evacuate the uterus. But in rural areas, where are the doctors? The procedure costs anything between Rs 2,000 in peri-urban areas to around Rs 10,000 in cities. The distress of a woman from a rural area, who requires an abortion, can only be imagined.

Failure of contraception is a valid reason to seek termination of a pregnancy. But more than the failure of contraception, the major reason for unwanted pregnancies is inadequate information about the routes of dependable contraception and care. Most families in rural areas believe that sterilisation is the only solution to avoid pregnancy because in India, people do not have adequate knowledge and lack access to reversible methods like IUDs and injectables. Rural Indian women are far behind their counterparts in Bangladesh, Sri Lanka and Indonesia when it comes to awareness of these methods. State family planning departments place too much reliance on the village level workers, ASHAs, who provide condoms and pills to village homes. But there is documentary evidence that these condoms and pills are used only intermittently. After pregnancy, an unsafe abortion is often the way out — the third most important cause of maternal mortality. Availability of improved contraceptives and easy access to friendly and competent staff is a big gap which needs to be filled.

In urban areas, medical termination kits are available over the counter on prescription. In unorganised markets, it can be bought without a prescription much like several other Schedule H drugs. Are such over-the-counter sales permissible? Are prescriptions needed to purchase such drugs? There are conflicting responses to such questions from consumers — even those in Delhi. For consumers to understand their rights, an advisory in simple language must be displayed outside chemists’ shops.

Once the law permits abortion on demand, the service must be provided free in government-run facilities. Currently, there is a shortage of trained staff and inadequate supplies of both medical kits and suction apparatus in most PHCs. This must improve for the law to be effective. A directory of practitioners authorised to give prescriptions and undertake abortions at specified locations must also be freely available.

Next is the question of differentiating between two abortion-related laws. Entitlements under the existing MTP Act 1971 are much less known than the provisions of the sex selection law (PCPNDT). The two are often confused unnecessarily, exposing women to suspicion, questioning and patronisation. Once the law is amended, it will have to be explained in regional languages, and in a simple manner, to obviate the present state of ignorance, and hubris.

The Constitution guarantees equal protection under law. Universal access to sexual and reproductive health is embedded in the charters of the International Conference on Population and Development,1994 and the SDGs. India is a signatory to both. Unless every woman in the reproductive age group has the ability to access what the proposed law intends it will remain only a good intention. Governments have enabled patients from remote villages to benefit from cataract operations and use institutional facilities for deliveries. Medical and surgical abortions must be handled in a similar way for women to be truly empowered.

Explained - Changes in 1971 abortion law, and why India feels it necessary

Source: Indian Express dated 01.02.2020

-- Abantika Ghosh

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in.

Earlier this week, the Union Cabinet cleared a long-pending change to the Medical Termination of Pregnancy Act, 1971 that raises the legally permissible limit for an abortion to 24 weeks from the current 20 weeks. Following the efforts of the Health Ministry, the change also accepts failure of contraception as a valid reason for abortion not just in married but also in unmarried women.

A look at what the Medical Termination of Pregnancy (Amendment) Bill, 2020 says, and why it was brought in:

What changes does the Medical Termination of Pregnancy (Amendment) Bill, 2020 bring in?

It increases the maximum permissible gestation age for abortion to 24 weeks, with the proviso that for pregnancies that are between 20-24 weeks opinions will be required from two doctors rather than one. This has been specially done keeping in mind “vulnerable women including survivors of rape, victims of incest and other vulnerable women (like differently-abled women, Minors) etc”.

The upper gestation limit will not apply in cases of substantial foetal abnormalities diagnosed by a Medical Board. The composition, functions and other details of the Medical Board are to be prescribed subsequently in Rules under the Act. This clause has been put to keep such cases out of courts; the government deemed a Medical Board should examine the various aspects of the case and take a call.

According to a government statement: “The Medical Termination of Pregnancy (Amendment) Bill, 2020 is for expanding access of women to safe and legal abortion services on therapeutic, eugenic, humanitarianor social grounds… It is a step towards safety and well-being of the women and many women will be benefited by this. Recently several petitions were received by the Courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. The proposed increase in gestational age will ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy.”

The original draft of the Bill had included the contraceptive failure clause only for married women, which, the Health Ministry has now felt, would have left unmarried women, on whom social pressures to abort are more acute, at the mercy of quacks. That is why in 2016, it sent a recommendation that failure of contraception should be accepted as a legal reason to abort not just in married but also unmarried women. It was accepted.

How overdue are the amendments?

A national discourse on amendments needed to the MTP Act, 1971 in view of advancement of medical technologies dates back to 2008 when Haresh and Niketa Mehta petitioned the Bombay High Court to allow them to abort their 26-week-old foetus who had been diagnosed with a heart defect. It made the point that pre-natal diagnosis of defects had come a long way – and some defects could be revealed after 20 weeks has passed. The Mehtas’ plea was turned down on expert advice. But the court’s observation that only the legislature could address the demand for change in the legal limit meant that India had started the process of re-evaluating provisions of the Medical Termination of Pregnancy Act, 1971. Niketa Mehta, incidentally, had a miscarriage soon after the verdict.

Since then, many cases have gone up to the Supreme Court asking for permission to abort beyond the legally permissible limit, often involving victims of sexual crimes.

Why is the change in law significant?

Despite a sustained government push over years, contraceptive use in India is not very popular. According to a 2018 study by the Guttmacher Institute, 50% of pregnancies in six of the larger Indian states — Assam, Bihar, Gujarat, Madhya Pradesh, Tamil Nadu and Uttar Pradesh — are unintended. Data from the National Family Health Survey 4 show that just 47.8% of couples in the country use modern contraceptive methods; only 53% use any method at all. It found that 55% pregnancies in Assam, 48% in Bihar, 53% in Gujarat, 50% in Madhya Pradesh, 43% in Tamil Nadu and 49% in Uttar Pradesh are unintended. The number of pregnancies ranged from 1,430,000 in Assam to 10,026,000 in Uttar Pradesh. Estimation of unintended pregnancies is important because many of them result in abortions and the availability of cheap and safe abortion services is one of the indicators of a robust health system.

According to a 2016 study published in The Lancet by the Guttmacher Institute and the World Health Organization, an estimated 56 million abortions took place globally each year between 2010 and 2014. In 2015, a study in The Lancet Global Health, also by Guttmacher Institute and IIPS, estimated that 15.6 million abortions were performed in India in 2015. This translates to an abortion rate of 47 per 1,000 women aged 15-49, which is similar to the abortion rate in neighboring countries.