The maze of interpretation: abortion laws and legal indeterminacy in Indian courts

Jain, Dipika and Balu, Krithika (2024) The maze of interpretation: abortion laws and legal indeterminacy in Indian courts. Indian Law Review. pp. 1-23. ISSN 2473-0580

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This article outlines the structural barriers to abortions in India, exacerbated by the COVID-19 pandemic and ensuing lockdowns. It discusses the limits to access inherent within India’s abortion law, strict state-imposed pandemic management measures, the unequal public healthcare system, and resultant systemic coercion of pregnant persons to approach courts to seek abortions. It reviews abortion-related cases to argue that the judiciary’s neglect of its responsibilities during the pandemic has been mirrored in its lack of willingness to realize the reproductive rights of pregnant persons requiring abortions during and after the pandemic. Cases are examined using the legal indeterminacy framework to understand how abortion laws overlook pregnant persons’ autonomy. These laws have relied on stereotypes, betraying the underlying paternalistic and protectionist rationale of the judiciary. The judiciary has assumed the role of ultimate arbiter in determining what constitutes a “good” or “bad” abortion and who is deemed deserving of abortion access

Item Type: Article
Keywords: Pandemic | Critical jurisprudence | Gender and court | Abortion services | Legal indeterminacy
Subjects: Social Sciences and humanities > Social Sciences > Social Sciences (General)
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Subhajit Bhattacharjee
Date Deposited: 12 Apr 2024 10:10
Last Modified: 12 Apr 2024 10:10
Official URL:
Additional Information: We thank Saptarshi Mandal and Shiv Swaminathan for their review of the draft. The paper benefitted immensely from their comments. We also thank Natasha Aggarwal for their excellent research and editorial assistance in the final stages of the paper. We want to acknowledge Abhaya Tatavarti, Anmol Ratan and Rudra for their research assistance in the initial stages of the draft. We are grateful to the editorial team of Indian Law Review for their editorial support, especially Professor Garg, Balu Nair, Karan Gulati and Vandita Khanna and the anonymous peer reviewers for their constructive comments on our drafts that substantially improved our paper. Finally, we express our gratitude to Dr C Rajkumar for their institutional support. In this article, we consistently use the term “pregnant person”. However, when referring to legal provisions that specifically mention “woman,” we retain that terminology. Additionally, while Indian law considers everyone below 18 years of age as a “minor” or a “child”, it is important to distinguish between a “minor” or a “child” and an “adolescent”, which is the phase of life between childhood and adulthood, from ages 10 to 19.


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