Introduction 

 Postmodernism is a movement that began mid-late 20th century and was characterised by skepticism, suspicion of reason and acute sensitivity towards the role of ideologies in politics and economic power. Postmodernism provided an excellent structure for feminists to present their arguments. While explaining postmodernism’s impact on gender, Judith Butler defines it as a subversion of modernist projections of “women as a gender”.[1] Postmodernism helps deconstruct the relationship between gender and sex as a juridical category where the sexed body is perceived as gendered, preceding the emergence of the order of discourse.[2] This paper will present Judith Butler’s theory on gender performativity and analyse its application to abortion laws in India.

I. Butler’s Theory on Performativity

Butler employs her concept of performativity to bring forth the limitations of identity politics that presumed a universal and unified subject of feminism.[3] Performativity allows us to “reconceive the gendered body as a legacy of sedimented acts rather than predetermined or foreclosed structure, essence, or fact, whether natural, cultural, or linguistic”.[4]

 Butler’s problem is with accepting the category of women as a universal presupposition, existing in the cultural experience and society. She believes that gender is performed and constitutes a series of acts. It has a well-defined script that was devised and regulated by society. [5]  There exists immense pressure to maintain this set of gendered roles, and all deviations are strictly punished.[6]

Butler draws our attention towards how the legal system produces and then conceals the notion of a “subject before the law” to invoke the discursive formation as a naturalised foundational premise that subsequently legitimates that law’s regulatory hegemony.[7] She proposes the inclusion of cultural diversity to proliferate within discourses to expose the binarism of sex and the unnaturalness of fundamentals of ontology.[8] Therefore, according to Butler, subjects of feminism should be women who are culturally and politically positioned and constituted as “women”.[9]

Butler implies the importance of deconstructing these socialised norms that manifest through regulatory structures of the judicial system for they create a regulatory fiction of pre-existing identity as natural gender identity.[10] To break free of this script, one has to use the postmodern critique of gender identity. Through such an approach, one understands that a woman is not born but becomes a woman and hence, a woman is a social construct.[11]  Therefore, community discourses involving the category of “women” should be open to intervention.[12]  For in postmodern thought, the community determines the facts they will accept as beliefs. If one can successfully alter the network of beliefs of the community regarding “women” and hence alter the language and conventions, women stand a chance at gaining their agency and improving women’s political and socio-economical position in society.[13]

Conceptual Basis of Butler’s Postmodernist Deconstruction of Gender

Butler’s theory of performativity is based on Foucault’s inquiry into the connection between subject, knowledge and power and Austin’s idea on constative.

Foucault introduces three modes of objectification through which a person is produced by systems of power as subjects. This subjects’ objectification happens through “those (who) categorise, distribute, and manipulate; those through which we have come to understand ourselves scientifically; and those that we have used to form ourselves into meaning – giving selves”.[14]  According to him, the system acts as a disciplinary power in society to maintain and produce docile, passive, subjugated and productive individuals.[15] Hence when regressive judgments are delivered, the system creates a hegemonic structure that constructs bodies that the system represents.[16]

Further, she relies on J.L. Austin’s concept of performatives which includes “speech acts” and “speech does”.[17]  Austin argues that constatives are propositions that are stated positively or negatively.[18] These statements can be true or false. The speaker of such constatives deliver such a speech expressing their own beliefs and with an intention that the audience can also form a similar belief. [19] Butler proposes that there “need not be a ‘doer behind the deed’,” but the “doer” is variably constructed in and through the deed.  Butler argues that one should deconstruct the constative terms that supported their understanding of gender to reveal its performative character.[20]  These are usually constative elements of the sexed body that feed into the idea that gender is natural. These elements are drawn from various sources, including religious, medical, psychological, and biological conceptions of truth.[21] To undermine the success of the constative, Butler proposes one should show that the constative itself is merely a performative.[22]

II. Abortion Laws in India

 Due to the prevailing Covid-19 pandemic, close to 18.5 lakh women across India have had no access to abortion facilities, despite abortion being an essential service.[23] Coupled with the current lockdown situation that increases the cases of domestic violence and marital rape (which is not criminalised in India), women are forced to continue with unwanted pregnancies.[24] Many of them are worried that they will surpass the statutory limit of 12 weeks of legally terminating a pregnancy (now increased to 24 weeks in some instances)[25] due to the continuing crisis and will be denied an abortion. Limits imposed on abortion continue to harm the vulnerable sections of uneducated women, in abusive households, and women from low-income backgrounds where they have no access to ultrasound facilities and often face barriers before they can access abortion services. Hence, it is pertinent to revisit abortion laws in India to assess their relevance from a postmodern framework.

Legal provisions

The Medical Termination of Pregnancy Act, 1971 ( “the Act”) was introduced as an exception to Sections 312 and 313 of the Penal Code, 1860[26], which penalised “intentionally causing miscarriage”, irrespective of the women’s consent.[27] The Act imposed a limit of twelve weeks within which a woman had to decide to terminate her pregnancy to prevent sex-selective abortions that led to female foeticides, which were common in Haryana and Rajasthan.[28]  However, technology has advanced since then, and identifying the sex of a child before twelve weeks is also possible, making the limit imposed redundantly.[29]  An additional extension up to twenty weeks was allowed, but only after consultation with two registered medical practitioners and only in case the pregnancy involved a risk to the life of the pregnant woman or child born would have congenital abnormalities.[30]

 III. Critical Analysis of the Application of Abortion Laws in India

Abortion law in India is riddled with various attempts to control women’s right over her reproductive functions. The problem is twofold, (i) the legal text of the Act itself enforces a gender script that deprives women of meaningful reproductive choice; and (ii) the interpretations adopted in abortion cases have oscillated between strictly applying the law or breaking the moulds of these norms and amplifying women’s reproductive choice.

i. The Medical Termination of Pregnancy Act, 1971

As Butler points out, a law produces specific subjects and decides whose body will be monitored, regulated, and controlled.[31]  In this case, the Act primarily deals with four main subjects – women (married/unmarried), women with fetus abnormalities, rape victims and women of unsound mind or minors.

Each of these subjects has a varying degree of agency over their bodily integrity and reproductive choice. A married woman is allowed abortion even in cases of contraceptive failures. In contrast, an unmarried woman is allowed abortion only if it poses a severe risk to her well being or there exists a fetal abnormality.  Butler would argue that such segregation would result in diminishing the subject’s social intelligibility and ongoing repetition of such culturally acceptable norms under duress; punitive social or legal consequences would result in specific gendered performances.[32] Here, it induces the idea that only a married woman in consultation with her husband can decide on her abortion. Whereas, an unmarried woman will not receive the same privilege for she chose to engage in sexual intercourse outside of marriage and should face social sanctions. Hence, Butler would propose that to ensure a society where women’s right to bodily integrity and reproductive choice is valued, the Act should remove the word “married” and “husband” from the legal text.

To change the way society perceives them, one ought to change the way laws are drafted for they provide the premise in the form of “constatives”. Austin proposes that these constatives lead the audience to develop the same beliefs as the speaker; here, the speaker is the Government; the audience is the citizens of India.[33]  Butler’s solution is to deconstruct the premise itself by publically advocating for reproductive rights that would provide all women with the reproductive choice to abortion at any time during their pregnancy. Advocating for their reproductive rights is an opportunity to reconfigure the hegemonic gender identities.[34]

ii. Case Laws on Abortion and Reproductive Rights in India

In India, Judges have had contrasting views on women’s reproductive rights. A few cases like Samar Ghosh v. Jaya Ghosh[35], the courts have undermined a woman’s right to terminate the pregnancy by making abortion an act amounting to mental cruelty and hence a ground for divorce. Butler would argue that this amounts to dilution of a women’s right to bodily integrity as this promotes cultural hegemonies that imply a wife to be subordinate to her husband. [36]

Foucault proposes that the subjects should recognise the possibility of opposing the power that subjects them and create an alternative discourse that would amplify the subversive repetitions of who is a “woman”.  A few judgments like Suchita Srivastava v. Chandigarh Admn.[37] and Laxmi Mandal v. Deen Dayal Harinagar Hospital[38], the courts affirmed women’s right to choose in the context of continuing her pregnancy. They read this as a fundamental right to privacy and bodily integrity as enshrined in the Constitution under Article 21.[39] Such an unusual interpretation of reproductive rights under Article 21 is what Foucault refers to as an alternative discourse. Butler would argue that such subversive repetitions can occur through the process of claiming rights.  Hence, the process of rights claiming can be viewed as performative contradictions that would open up the space for increased subversive performativity in general society.

Thus, Butler’s performativity theory allows one to understand the social implications of abortion laws and provides for sustainable solutions to circumvent the hegemonic gender identities through strategies of rights claiming and publically challenging how a woman and her reproductive experiences are perceived in the society.

Conclusion

Butler provides an excellent structure for analysing gender identity through a postmodernist lens. The Indian legal system is plagued by archaic laws that propagate the community beliefs that result in the ostracisation of women from public places by making them docile and submissive subjects. Butler proposes we should deconstruct these performances and language scripts to expose these primitive beliefs. The deconstruction of gender will be the first step in regaining women’s agency in society. However, Butler is often criticised by new materialists for the theory of performativity delves in abstract and ignores the practical impact these laws create on the physical body.  New material feminism tries to combine the discursive and the material body and its social construction to gain agency of the matter. [40] Butler’s theory can be coupled with new materialists’ understanding of body to improve abortion laws in India.


* Fourth year law student, Jindal Global Law School. Author can be reached at 17jgls-pnaidu@jgu.edu.in

[1] Dennis Patterson, Postmodernism/ Feminism/Law, 77 Cornell LR 255, 271-275 (1992).

[2] Id., 260-262.

[3] Patterson, supra Note 2, 260-262.

[4] Judith Butler, Bodies that Matter: On the Discursive Limits of Sex, New York: Routledge (2011).

[5] Ibid.

[6] Santa Barbara & Peter Digeser, Performativity Trouble: Postmodern Feminism and Essential Subjects, 47 Sage Publications, Incat 655 (1994).

[7] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 1990.

[8] Digeser, supra Note 6 at 657.

[9] Ibid.

[10] Butler, supra Note 7 at 75.

[11] Simone de Beauvoir, The Second Sex, New York: Vintage Books (1989).

[12] Patterson, supra Note 1 at 272.

[13] Santa Barbara & Peter Digeser, Performativity Trouble: Postmodern Feminism and Essential Subjects, 47 Sage Publications, Inc. at 655 (1994).

[14] Michel Foucault, The Subject and Power, Critical Inquiry 8 (4) 777-795 (1982).

[15] Ibid.

[16] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 62 (1990).

[17] John A. Dinneen, What Austin does with Words, 32  Philosophy and Phenomenological Research, 514-523, 1972.

[18] Ibid.

[19] Jacobsen H. Klaus, The Philosophical Quarterly 21, No. 85 (October 1971), pp. 357-360 (1971).

[20] Butler, supra Note 16, 78.

[21] Klaus, supra Note 19, 358.

[22] Butler, supra Note 16, 78.

[23] Chetana Belagere, 18.5 lakh in india didn’t get access to abortion facilities in lockdown, Indian Express, June 2020.  <https://www.newindianexpress.com/states/karnataka/2020/jun/02/185-lakh-in-india-didnt-get-access-to-abortion-facilities-in-lockdown-2150999.html> (last visited June 2020).

[24] Roli Srivastava, India has Listed Abortion as an Essential Service, but Problems of Access Persist under Lockdown, Scroll.in, 2020.

[25] Vrinda Grover, The Amendments in the MTP Act Bill are Flawed| Analysis, Hindustan Times, 28-2-2020.

[26]Penal Code, 1860 http://www.scconline.com/DocumentLink/wNz74jV9, No. 45, Imperial Legislative Council, 1860.

[27] The Medical Termination of Pregnancy Act, 1971 (No. 34) Acts of Parliament of India, 1971.

[28] Siddhivinayak S. Hirve, Abortion Law, Policy, and Services in India: A Critical Review, Reproductive Health Matters, 12 Taylor & Francis, 114-121 (2004).

[29] Ibid.

[30]The Medical Termination of Pregnancy Act, 1971, No. 34, Acts of the Parliament of India, 1971 (India).

[31] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).

[32] Kathryn McNeilly, Framing Wrongs and Performing Rights in North Ireland: Towards a Butlerian Approach to Life in Abortion Strategisiing, 14 Journal of International Women’s Studies (2013).

[33] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 62 (1990).

[34] Supra Note 32.

[35] (2007) 4 SCC 511

[36] Supra Note 32.

[37] (2009) 9 SCC 1

[38] 2010 SCC OnLine Del 2234

[39] Constitution of India, Article 21

[40]Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, Feminist Studies, Vol. 14, No. 3 pp. 575-599 (1988).

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