JURISPRUDENCE END TERM ASSESSMENT

I.

INTRODUCTION
 
The Medical Termination of Pregnancy (Amendment) Act 20211 (hereinafter MTPA/Act)
increases the upper limit to get an abortion for both married and unmarried women from 20 to 24
weeks if pregnancy involves a risk to a woman’s mental/physical health or a risk of
physical/mental abnormality to the unborn child. The abortion is done after consultation from
one or two doctors depending upon the time that has lapsed when seeking an abortion. The Act
directs the appointment of a medical board by specific States/U. Ts in cases of termination of a
pregnancy after 24 weeks. 
 This essay attempts to elucidate upon women’s right to abortion. It proceeds in three
parts. Firstly, it addresses the right to abortion and its linkage with the privacy judgement and
with the choice debate proposed by feminist scholars. Secondly, it addresses the gaps existing in
the choice debate. Thirdly, it refutes the opinion of natural law ethical theory on abortion by
relying on constitutional morality and radical feminism. 
 
PART I: Abortion: A Matter of Privacy and Choice
 
It is significant to note that MTPA lays down conditions under which a woman can abort her
pregnancy. It does not give a woman a right to abort on her demand. MTPA is in direct
contradiction with the privacy judgement2 where a woman’s right to exercise her reproductive
choice was an aspect guaranteed to her under the right to privacy emanating from Article 21 of
the Constitution of India. Reproductive choice was linked to self-determination, bodily
autonomy, bodily integrity, privacy, sexual autonomy and dignity of the individual.3 MTPA
strips woman off from their agency to make decisions about their body, sexual and bodily
autonomy. As noted by Erdman, decisions regarding child-birth bear serious ramifications for a
1
Medical Termination of Pregnancy (Amendment) Act 2021, No.08, Acts of Parliament, 2021 (India).
2
Justice K.S. Puttaswamy (Retired). v. Union of India and Ors., (2017) 10 SCC 1
3
Id., ¶ 83.

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woman concerning her self-worth, stability, security, how they perceive themselves in society
and how they relate to others.4 MTPA by setting conditions for abortion is a testament of how
motherhood is a hegemonic ideology imposed by patriarchy and men in power who think women
who put their needs before their unborn child’s, need to be controlled. 5 Therefore, women who
dare to defy this ideology are subjected to criminal sanctions.6 Restricting access to abortion is
another way to restrict women’s sexual freedom and continuing with patriarchal notions of
women’s role in society.7
 
PART II: Gaps in the Choice Debate

It becomes imperative to highlight that the choice/rights-based debate has a class dimension. It
assumes that all women have the agency to make the decisions for themselves. It has evolved
mainly from the experiences of white women and continue to ignore experiences of black, trans,
queer, dalit women.8 As Mara notes, “women with money have options and women without
money have babies”.9 At the core, the abortion debate is an issue of inequality- class, caste,
wealth, sexuality and gender. It needs to be seen through the lens of intersection as
criminalisation of abortion impacts women who face multiple disadvantages of their caste, class,
wealth, gender and sexuality. It is necessary to be anti-eugenics, as being merely pro-choice will
not achieve equality- the founding goal of feminism. 
 
PART III: Natural Law Ethical Theory 
 
Natural Law Ethical Theory proposes that for human action to be considered “good/moral” all
three determinants of the theory should be good/moral. These are10:
a. act itself - the act of abortion is considered inherently wrong/immoral 

4
Joanna N. Erdman, The Gender Justice of Abortion Laws, 27 SRHM 12 (2019).
5
April L. Cherry, Shifting our Focus from Retribution to Social Justice: An Alternative Vision for the Treatment of Pregnant Women Who Harm
Their Fetuses, 28 JLH 641, (2015).
6
Id., 42.
7
Virginia Santini, Our right to choose: challenging the state’s control over women’s bodies, 72 SOC. L. 39, 40 (2016).
8
Dipika Jain, Time to rethink criminalisation of abortion? Towards a gender justice approach, 12 NUJS L. Rev 21, (2019).
9
Virginia Santini supra note 7 at 40.
10
Diane N. Irving, Abortion: Correct Application of Natural Law Theory, 67 (1) LINACRE Q 45, (2000).

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b. motive or intention- the intention behind abortion is to kill an unborn child and also to escape
disgrace which is considered morally illicit by natural law theorists
c. circumstances- Aborting a child for reasons like career enhancement, limiting family size,
escaping embarrassment and choice is not grave enough 
According to the theory, abortion is an inherently wrong action so even if the circumstances or
the intentions are good it does not matter. Therefore, abortion should not be permitted in any
scenario as killing a child is an inherently wrong act.
Natural law ethical theorists place too much importance on social morality and this eventually
leads to neglect of justice. As observed by Rawls, justice in its essence is about fairness,11 but
fairness cannot be achieved if actions will be judged through social morality. For fairness to take
precedence constitutional morality must trump social morality. Constitutional morality provides
for an “enabling framework that allows a society the possibility of self-renewal”.12 Further, as
noted by the SC in Navtej Singh Johar13 “constitutional morality cannot be martyred at the altar
of social morality.” “Existing structures of social discrimination must be evaluated through the
prism of constitutional morality. The effect and endeavour are to produce a society marked by
compassion for every individual.”14 In light of the observations made by the SC, it can be rightly
assumed that constitution is the grundnorm of any state and all laws will be tested against the
values embedded in the constitution. Therefore, an issue like abortion cannot be merely decided
based on social morality.
Since, women live in constant patriarchy, oppression, injustice and aggression they should not be
put into a situation where they are forced to bear a child. This will further oppress women and
serve male interests.15 As MacKinnon points put the issue of morality with respect to abortion
can only arise when both sexes will be equal and since they are not, women should be able to
abort irrespective of the moral stance.16
Markowitz’s ‘Impressible Sacrifice Principle’ provides another ground to refute the natural law
ethics theory. She proposed “when one social group in a society is systematically oppressed by
another one, it is impermissible to require the oppressed group to make sacrifices that will

11
Leif Wenar, John Rawls, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (April.12, 2021), https://plato.stanford.edu/entries/rawls/.
12
Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501.
13
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
14
Indian Young Lawyers Association v. The State of Kerala,2018 (8) SCJ 609.
15
Turkiye Biyoetik Dergisi, Feminist Ethical Approach to Termination of Pregnancy, 4 (4) TJOB 158, (2017).
16
CATHERINE MACKINNON, TOWARDS FEMINIST THEORY OF THE STATE (Harvard University Press 1989).

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exacerbate or perpetuate this oppression.”17 If women will be obligated by men in power through
abortion laws that will require women to make sacrifices and become mothers of unwanted
children but will not ask men to make any sacrifice, it will perpetuate the inequality and already
existing discrimination against women.18 

CONCLUSION:

The issue of abortion is not merely a pro-choice or pro-life debate as it has been reduced to. It is
not enough to merely decriminalize abortion as other problems such as sex selective abortion,
unbalanced sex ratio will further perpetuate discrimination against women. It is a much larger
issue that is rooted in the inequality of gender, sex, wealth, caste and sexual orientation. It
becomes pertinent for the state to take an intersectional approach while decriminalizing abortion
which the MTPA does not do yet. Constitution is a transformative and supra document and
decriminalization of abortion should be rooted in constitutional values of substantive equality,
justice and liberty. 

II.

INTRODUCTION

The Indian government has adopted a combination pricing model (hereinafter CPM) to vaccinate
the majority of the country’s population i.e., 594.6 million (appx.)19 which falls within the age
bracket of 18-44 years. The central government is responsible for buying and distributing 75% of
the total vaccines for the concerned age group while the 25% is being procured by private
hospitals which is capped at a certain price to ensure affordability.20 
This essay aims to explain how the CPM adopted by the government for individuals in the age
group 18-44 is the most ‘just’ pricing model for administering vaccines against COVID19 in

17
Sally Markowitz, Abortion and feminism, 16 (1) SOC THEORY PRACT. 1, (1990).
18
Id.
19
Abhishek Jha, Vineet Sachdev, Covid-19: Cost of vaccinating the 18-44 population, HINDUSTAN TIMES (April 23,2021, 12:25 PM IST),
https://www.hindustantimes.com/india-news/cost-of-vaccinating-the-18-44-population-101619125907373.html.
20
Centre to give free vaccines to states from June 21: PM announces new policy, THE TIMES OF INDIA (Jun. 7, 2021, 8:39 PM IST),
https://timesofindia.indiatimes.com/india/free-vaccines-for-all-above-18-pm-modi-announces-new-vaccination-policy/articleshow/
83308354.cms.

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India. In an attempt to do so, it proceeds in two parts. Firstly, it relies on Powers and Faden’s
social justice theory and Rawl’s theory of justice to explain how the current pricing model
ensures the most 'just' distribution of vaccines and thereby fulfils the state’s obligation of
ensuring justice. Secondly, it then relies on the theory of Means-Ends Limits and Mill’s Harm
Principle to illustrate how this pricing model counters all other issues that will arise if vaccines
were to be made completely free of cost or paid. 
 
PART I: Theories of Justice
 
According to Powers and Faden’s social justice theory, a just society that comprises of both
institutions and individuals seeks to ensure a minimum level of well-being for its members
across six dimensions: health, self-determination, security, reasoning, respect and attachment.21
As per the theory, each society should aim at establishing a kind of environment that will allow
its members to reach minimum levels of well-being.22 Members — individually as well as
through
various institutions — are responsible for regulating and minimizing threats that may lead to a
reduction in well-being below the minimum levels for other members.23 
CPM for the covid vaccine will ensure a minimum level of well-being with respect to health and
security dimensions for all the members in the age group irrespective of their income levels.
According to the Indian Human Development Survey 2011-12 (IHDS-II) if an individual’s
annual household income is more than 1.6 lakh rupees then they fall within the richest 20% in
the country.24 This leads to the conclusion that most Indians cannot afford the covid vaccine,
however, a very small percentage can afford it. CPM caters to both as the ones who can afford
the vaccines can get it from private hospitals and the ones who cannot can get it from the
governmental vaccination centers for free of cost. CPM allows for a balance between the ones
who can afford to pay for the vaccine and the ones who cannot. In addition, it leads to the

21
MADISON POWERS & RUTH FADEN, SOCIAL JUSTICE (Oxford University Press 2006).
22
Id.
23
Id.
24
As cited by Samarth Bansal, How many Indians are richer than you?, THE HINDU (May, 3, 2016, 5:14 PM IST),
https://www.thehindu.com/data/how-many-indians-are-richer-than-you/article8551773.ece.

5
fulfilment of the justice obligation on the state as it does not overburden the state’s resources
which eventually prevents the breakdown of state machinery.
Rawl’s theory of justice can also be used to explain how CPM is the most 'just' model to
administer covid vaccines. Rawls states that justice will only ensue if there is an egalitarian
distribution of goods.25 Unequal distribution of resources will only be considered just when it
benefits the least well-off in society.26 CPM does exactly that. On one hand, it imposes no
significant burden on the ones who can afford to pay for the vaccines. On the other, it benefits
the least well-off by providing them vaccines free of cost thereby protecting them from the
deadly consequences in case they contract the virus.
 
 PART II: Theories on the Limits of Law

The theory of means-ends limits of the law states that law has its limits and it must try to do its
best with the tools available at its disposal.27 If the vaccines will be distributed free of cost to the
entire population, then it will create a huge burden on the already crumbled healthcare system. In
addition, it will perpetuate the unequal access to healthcare between rich and poor as rich people
will use their networks and avail vaccines while the poor will have to wait for all the rich
individuals to get vaccinated before they get a chance. This wait for vaccine paired with lack of
awareness, healthcare access, testing incapability and comorbidities associated with poverty will
make them more vulnerable to the virus.28 CPM counters all the challenges posed by the free
vaccine distribution policy. It offsets the burden on the healthcare system and to some extent, it
speeds up the process of getting vaccinated for poor individuals as the ones who can afford will
go to the private hospitals to get vaccinated which will make space for poor individuals. In
addition, CPM provides for employment opportunities as private hospitals will employ an
additional workforce who will be responsible for administering, coordinating, supplying covid
vaccines; and managing the vaccine waste. 
According to Mill’s ‘Harm Principle’ when institutions which make the social fabric of society
engage in actions that harm others then those actions are not permissible, and members of society

25
JOHN RAWLS, A THEORY OF JUSTICE (Harvard University Press 1971).
26
Id.
27
John Stanton-lfe, The Limits of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Jun. 7, 2021, 1:39 AM),
https://plato.stanford.edu/entries/law-limits/#mean
28
Nishat Ahmad, There is a real danger that covid-19 will become entrenched as a disease of poverty, BMJ 373, (2021).

6
should step in to prevent any harm occurring from those actions. 29 Free distribution of vaccines
will cause harm to the lowest strata of society because of the overburdened healthcare system,
long wait for vaccines and increased vulnerability to the virus. On the other hand, if vaccines are
paid completely or states are left to fend for themselves then the poor individuals/states will not
be able to afford it. This will lead to inequality where rich states/individuals will vaccinate their
population/themselves while poor states/individuals will end up suffering. However, CPM
prevents both extreme scenarios from occurring. It causes no additional harm to those who can
afford the vaccines and prevents suffering which will happen to the most vulnerable section if
vaccines are completely free/paid for. 

CONCLUSION

As pointed out by Rawls, justice in its essence is about fairness30 ,and CPM paves the way for
fairness when it comes to the distribution of Covid19 vaccines. By giving a paid option for
vaccination, it reduces the state's burden. Further, it makes space for the ones who cannot afford
the vaccines to get vaccinated at the earliest. It is a strategically sound policy that will allow the
state to fulfil its obligation of justice by ensuring the well-being of most of its citizens
irrespective of their income levels. 

IV.

INTRODUCTION 

The debate between principled limits of law and legal moralism originated when the Wolfendon
Report (1957) released by the British Government recommended legalizing homosexual acts in
private.31 In response, Lord Patrick Devlin relied on public morality and religion to argue against
the recommendations.32 Devlin’s arguments were responded to, by HLA Hart who relied on

29
John Stanton-lfe supra note 27.
30
JOHN RAWLS supra note 25.
31
John Stanton-lfe supra note 27.
32
Id.

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Mill’s theory of utilitarianism as a principled limit of the law and stated that the state should not
impose sanctions on individual actions which are harmless to others.33
This essay aims to chalk out how Mill’s theory of utilitarianism and Devlin’s legal moralism
would unfold in a democratic legal system based on values of pluralism and liberalism with a
strong emphasis on minority rights. To do so, it first elucidates upon the functioning and
limitations that would arise out of Mill’s theory of utilitarianism, as a principled limit to the law
in the above-described legal system. Secondly, it then tries to answer whether Devlin’s legal
moralism would thrive in such a setup.

PART I: Mill’s Theory of Utilitarianism 

Mill’s ‘Harm Principle’ derived from his theory of utilitarianism is one of the most widely
known proposal explaining the principled limits to the law.34 Mill placed a lot of importance on
the rights and liberty of each individual’s action. According to Mill’s Harm Principle, any
interference by the state with an individual’s liberty is only justified if it is preventing harm to
others.35 The state should not restrict an individual’s action merely on the grounds of morality. If
an action is immoral and causing harm then the liberty of an individual will solely be interfered
with on the ground that the action causes harm and morality of the action is irrelevant. It is
important to mention that harm and morality may intersect but morality cannot be the sole basis
on which the state will interfere with an individual’s liberty. 
In a democratic legal system described above, Mill’s theory of utilitarianism will emphasize
fundamental rights and liberties of individuals. The legal system will interfere with an
individual’s liberty only to prevent harm to others. For example: If people from the LGBTQ+
community are being openly discriminated against by heterosexual individuals then the legal
system will interfere only to the extent to prevent tangible harm occurring in employment,
marriage, succession and adoption laws etc. However, if homosexual individuals are subtly being
discriminated such as not being invited to social interactions, then as per Mill’s theory no action
can be taken in such a situation. Some individuals will argue that being excluded from social
interactions causes harm to one’s mental health, therefore, state action will be appropriate.

33
Id.
34
Id.
35
Id.

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However, it is significant to mention here that since the legal system values pluralism along with
minority rights, a situation of conflicting rights arises. As per Mill’s theory, a situation like this
will be resolved by appealing to the overall good.36 The overall good may be honouring both
communities’ rights due to pluralism but working towards a campaign tackling homophobia
without interfering with an individual’s liberty. 
The issue with Mill’s theory is that it does not aim to secure justice. 37 For example: if in the
above-described legal system, gender-conforming individuals own more private property than
transgender individuals then the state cannot interfere with an individual’s liberty and re-
distribute property to secure justice because gender-conforming individuals owning more
property causes no harm to transgender individuals. However, the effects of gender-conforming
individuals owning more property are then manifested in wealth inequality, in positions of power
and status. These are indirect and long-term harms that Mill’s Harm Principle does not take into
consideration. This theory then fails in a legal system that aims to address minority issues by
emphasising minority rights and substantive equality.

PART II: Devlin’s Legal Moralism

Devlin’s Legal Moralism goes one step ahead of Mill’s Utilitarianism. According to Devlin, for a
state to interfere with an individual’s liberty a particular action does not need to cause harm to
others.38 Legal moralism proposes retributive justice which means whatever sanction is being
imposed should depend on the blameworthiness of an individual.39 State action can interfere with
an individual’s liberty merely because society considers it immoral. 40 It is important to highlight
that Devlin refers to public morality and not constitutional morality while declaring an action
appropriate for state interference. 
Legal moralism may not necessarily thrive in the above-described legal system. Since the notions
of public morality vary from one society to other it is quite possible adhering to public morality
as proposed by legal moralism might lead to regressive politics and arbitrary laws. One

36
David O. Brink, Mill’s Ambivalence About Rights, (90) B. U. L. REV. 1669, (2010).
37
Id.
38
John Stanton-lfe supra note 27.
39
Id.
40
Id.

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prominent example of such a scenario can be the Sabarimala verdict41. If public morality would
have been the basis for the verdict, then menstruating women would not have been allowed to
enter the temple even today despite the Constitution of India valuing principles of liberalism,
pluralism and minority rights. They were allowed because in Indian jurisprudence constitutional
morality trumps public morality. If the notions of morality in legal moralism are shifted from
public to constitutional morality, then legal moralism would thrive in the above-described legal
system. All actions would be assessed on the touchstone of constitutional morality which will
allow the state to realise the goals of liberalism, pluralism and protection of minority rights. One
prominent example of such a situation would be the verdict given in Navtej Singh Johar42, the
reliance of the Supreme Court on constitutional morality instead of public morality led to the
affirmation of the values of liberalism, pluralism and preservation of minority rights enshrined in
the Constitution. 

CONCLUSION 

In a democratic legal system, which values principles of liberty and pluralism neither ‘Harm
Principle’ nor public morality should be the sole basis for state action as it will be too elusive and
difficult to justify such actions. Further, the actions might suffer from arbitrariness especially in
the case of legal moralism. A democratic legal system should aim to achieve a balance between
constitutional morality and securing individual liberties.

41
Indian Young Lawyers Association v. The State of Kerala,2018 (8) SCJ 609.
42
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

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