Rebecca Cook, The Abortion Provision of the 1837 Draft of the Indian Penal Code (1982)

The abortion provision of the Indian Penal Code differed from other Commonwealth abortion laws by requiring proof of pregnancy to convict. In other Commonwealth legal codes, the only requirement was intent. The Indian Penal Code was primarily written by Thomas Babington Macaulay in 1837 and imposed fines and prison sentences for abortionists. When the Code was revised in 1860, harsher sentences were added for aborting a "quick" fetus.

The institution of child marriage, the recognition of eight different forms of marriage and a variety of other cultural motifs minimized the likelihood of illegitimacy and abortion in India during the 1800s. In India's agrarian society, male children were economic assets. Epidemic diseases were common, the infant mortality rate was high, and pregnancies were welcomed. Female infanticide was an accepted practice. Islamic law forbade abortion after the fourth month, which was believed to be the time of ensoulment of a fetus. Hindu law did not clearly prohibit abortion, but the doctrine of ahmisa , or non-violence, worked against recognition of abortion. Sanctions against it varied among castes. The Codes of the Three Presidencies were inconsistent. Two of the three, the Madras and Bombay Codes, had no abortion provisions, while the Bengal Code applied Muslim criminal law to all subjects.

Under English common law, abortion was a misdemeanor only after quickening. The first abortion statute, enacted in 1803, made procuring an abortion after quickening a capital felony. Before quickening, procuring an abortion was a lesser felony that could be defended by proving the woman was not pregnant. The Lansdowne Act of 1828 was very similar but extended criminality to abortions by instruments. The 1837 Offenses Against the Person Act removed the pregnancy requirement and quickening distinction from the law. Scottish law held abortion to be an indictable offense only if the woman was pregnant. The 1810 French Penal Code outlawed abortion on pregnant women, as did Livingston's proposed Louisiana Code, which also contained an exception to save the woman's life. Both of those codes influenced Macaulay's draft of the Indian Penal Code.

In England of the early 1800s, over 200 capital offenses were on the books. Courts avoided capital convictions by acquitting defendants, convicting them of lesser crimes or asking the sovereign for mercy. A reform movement blossomed, advocating that laws be clarified and codified and that lesser punishments be ordained for minor crimes. Debate also emerged over the propriety of using the criminal law to control morality and the proper role of the police in the control of personal behavior. Macaulay generally supported criminal law reform and opposed the criminalization of moral offenses.

Macaulay grew up in an anti-slavery, Evangelical household. As an adult he followed in his parent's footsteps by opposing slavery, but rejected their religious fundamentalism. He had a protective attitude towards women, stemming from being forced to raise his younger sisters. A moderate Whig historian, he served in Parliament from 1830-1834, when he went to India. He favored small, efficient government, and supported codification of the laws as a way of limiting government authority. His Indian Penal Code was a reformist code: its goals were to suppress crime while inflicting the least possible amount of suffering and ascertaining the truth at the least cost. The Code was pragmatic, brief, clear and simple. His concern about the well being of women, fear that people might extort women and their families with false accusations of abortion and opposition to legislating morality, led him to draft one of the most humane abortion laws of the time.

 

 

Revised July 23, 2003 (MD)