Foreign Affairs and International Relations

LSPR Monthly Newsletter (Volume 5)

Indian jurisprudence on abortion rights: Progressive or Merely Inconsistent?

Rakshit Agarwal and Niveditha K Prasad

The Indian judiciary, despite the criminalization of abortion under the IPC has been proactive and progressive in granting women the right to abortion. As recent as last month , the Supreme Court passed a landmark judgment wherein it granted all women, irrespective of marital status, the right to abortion under the Medical Termination of Pregnancy Act 1971. The recent judgment of the Kerala High Court in Ramsiyamol RS v State of Kerala, however, denied a woman an abortion, highlighting that social stigma and financial difficulties are not factors that ought to be given consideration in determining whether an abortion ought to be carried out. This piece will first establish the current law in India with respect to abortions before analyzing the order of the Court. It will then argue that the Kerala High Court was flawed in reaching its judgement.

The Medical Termination of Pregnancy Act 1971 along with the corresponding 2021 amendment are the chief governing statutes in India governing abortion. It allows for abortions to be carried out within 24 weeks if (i) there is a risk the life of the mother or her mental or physical health; or (ii) the foetus suffers from serious foetal anomalies. Beyond the statutory period of 24 weeks, abortions are permitted if it is necessary to save the life of a pregnant woman.

The Kerala HC case dealt with a young unmarried woman who filed for the abortion of her 28-week old foetus citing financial difficulties and social stigma. She was earlier in a live-in relationship but relations with her partner deteriorated after the discovery of the pregnancy. The Medical Board, while detecting increased risk of neonatal morbidities and adverse neuro developmental outcomes in the foetus, still recommended that medical termination not be carried out due to the statutory prohibition.

Notably, the Board did not comment on the mental and physical health of the mother and the risk to her health in case of an abortion. The Court agreed with this opinion, rejecting the argument that economic backwardness or social stigma were strong enough grounds to allow abortion beyond the prescribed upper limit of 24-weeks. 

The judgement is in stark contrast to other judgements issued by various High Courts. The Kerala High Court itself recently, in X v Union of India allowed the termination of a 28-week foetus of a 14-year old, citing grave injury to the mental health of the girl. The judgment was also more humane in that, in case the abortion was not performed, it ordered the State to take care of the child if the mother was not willing to assume responsibility. The Court, unfortunately, did not discuss this judgement in its reasoning.  Further, in several cases, Courts have allowed rape victims to abort their foetus even if they were above the ceiling limit. This clearly implies that, contrary to the judge in Ramsiyamol, abortion beyond the statutory prescription is being allowed. In all these cases, the courts have been cognizant of the undue mental injury caused by the pregnancy. 

The Courts in India have generally been proactive in granting women the access to abortion beyond the statutory period, citing mental trauma as the relevant factor in their decision. In the High Court on its own Motion v State of Maharashtra, the Bombay High Court noted that there are financial and social aspects attached to a pregnancy. Thus, there is no reason that a woman ought to be the lone sufferer in this regard.

The Court also called upon medical practitioners to take into account a woman’s “actual or reasonable foreseeable environment” in ascertaining whether it constituted a threat to her mental health.

Keeping in mind this decision, it is pertinent to note that the woman’s environment was not the most conducive for the welfare of the child. The Courts have often considered the interests of the child and the quality of its life in determining whether an abortion should be granted. We argue that financial barriers hinder the holistic development of the child and in such a situation, the mother should be allowed an abortion. In the present case, however, the Medical Board and the Court took a very myopic view by emphasising on the fact that there were no maternal complications, medically. It simply ignored the changes in the woman’s economic and social circumstances in the backdrop of the estrangement from her partner who was also harassing her for dowry and the effect that these factors may have on her mental health.

The Kerala High Court judgement then highlights a wild inconsistency in the manner in which High Courts adjudicate on requests for termination of pregnancies. Further, it also nudges us to ask a more fundamental question: is it reasonable to expect a pregnant woman, already suffering from various emotional, physical, mental and financial challenges, to knock on the doors of the Court with an abortion request? And yet, we repeatedly see instances such as this. It is pertinent to note here that this situation has arisen primarily because of the criminalization of abortion under the IPC and the fact that the MTP is a doctor-centric legislation that immunizes medical practitioners and women undergoing abortion under specific circumstances. 

The authors are undergraduate students at NLSIU, Bengaluru and editors at LSPR.

Making sense of the Debate In India on the Russo-Ukraine War

Devansh Kaushik

This article attempts to make sense of two opposing viewpoints on the Russo-Ukraine Conflict from an Indian Standpoint, as was reflected in an exchange of views published in the Indian Express, one written by Anastasia Piliavsky and the response written by Subrata Mukherjee. Quite aptly, this exchange personalises an exchange of views between a Ukrainian citizen committed to her country’s cause with an Indian citizen reluctant to support it. As we will see, their exchange summarises most of the common views floated in this regard, and thus their writing makes an ideal anchor for an impartial reader to go about formulating her own view.

Piliavsky makes 9 points, namely that Russia, is not the erstwhile USSR in terms of ideology or economy and not the same country which was such a close ally to India in the 1970s and 80s.; Ukraine is not an American proxy; NATO is not engaged in aggression against Russia; Ukraine is not a Nazi State; Russian-Ukrainians are not needing saving; Russia is attempting to rebuild its historical empire; the Russian military capability was overestimated; Russia has not been a consistent ally to India in recent years and finally that it is not in India’s interests to condone such aggression in the long term.

Mukherjee responds by claiming that NATO is responsible for the present crisis by its past aggression, offensive posture and eastwards expansion; the international legal order has failed Russia; a multipolar world is more stable than a unipolar world; the west was involved in the 2004 pro-democracy movement in Ukraine; Ukraine is a corrupt country with lingering fascist instincts; Ukraine did not implement the 2015 Minsk agreement; Ukraine is responsible for a genocide in Donztsk which the West ignored, the present sanctions are largely a US project; Russia’s loss is likely to be minimal from such sanctions and many countries in the global south have rightly abstained from supporting the western stance in the UN.

Mukherjee also accuses Palevsky of presenting a biased picture and argues that Russia’s position is a response to US-NATO aggression. However, his arguments suffer from a lack of regard of international law and miss several crucial facts on the ground. This article attempts to set the record straight and present a more balanced view.

Even if taken as true at face value, Mukherjee’s claims, do not address most of Palevsky’s 9 arguments. Let’s now deal with the disagreement that actually emerge and set the record straight.

The NATO involvement in Yugoslavia was no doubt controversial and of questionable legality. It lacked UN Security Council approval, as was also correctly pointed out by Mukherjee. However, the fact of the genocide in Yugoslavia was, unlike the one claimed in Ukraine, internationally acknowledged via UNSC Resolution 1199 and NATO’s involvement can be arguably defended as bringing to end to a blood internal conflict. Unlike Ukraine, NATO did not use it as a pretext for territorial expansion. Keeping ‘suspicions’ aside, the way facts stand, a largely democratic and multilateral alliance like NATO has far less of a history and political incentive to engage in naked aggression and territorial annexation, compared to autocratic governments like Russia.

It is also disingenuous to impute that a territorial aggression or invasion may be a justified response to NATO expansion. The two acts are not comparable. Joining an alliance is a perfectly legal act of a sovereign country, also permitted by Chapter VIII the UN Charter of which Russia too is a signatory. Territorial aggression and annexation has been forever renounced as an illegal instrument of state policy as per the charter (Preamble), which forms the bedrock of the current international legal order. Therefore, no country can regard a mere act of joining an alliance by another country as an act justifying a military response. It is the decision of the legitimate government of that country to act as it deems fit for its own security and it is not up to another country to question its motivations or forbid it.

Ukraine has no obligation to stay ‘neutral’ if it feels that it is no longer in its interests to do so. For context, what if China were to one day ‘refuse to tolerate’ India’s growing involvement with the Quad. Would this argument stand? Even from a political standpoint, it is equally likely that it was the Russian aggression in 2008, 2014 and now in 2022, which forced its neighbouring European states to consider joining the alliance, more than any wooing by the west. It is also pertinent to point out that the Russian conception of Ukrainian ‘neutrality’ is also more along the lines of a compliant and puppet regime.

Mukherjee also paints the removal of the Pro-Russian president Viktor Yanukovych in 2013 as an illegal overthrow of government. It is pertinent to point out that his removal from power came about as a result of widespread popular protests, which resulted in him fleeing to Russia, subsequent to which he was removed from power by the Ukrainian Parliament. This is in contrast with the forced regime change which was attempted at gunpoint by Russia at the start of the conflict. President Zelensky was elected with a 73% majority and his election had also recognised by the Russian Government itself. In any case, a domestic regime change is no justified grounds to invade and occupy another country.

The purported Russian apprehension of a possible NATO Naval Base in Crimea is also exaggerated. While Ukraine is certainly entitled to host a foreign base if it so chooses, the strategic reality is that the entry of foreign warships to the black sea is severely restricted by the Montreux convention that regulates the Turkish straits (specifically the number, type and tonnage of ships permitted), and which includes Russia as a party. In any case, it would have been a stretch to jump to that fear in 2014 when Ukraine was still years away from any EU or NATO membership.

With regards to the Russian invasion being a response to an aggressive NATO, it should be noted that NATO defence spending  has in fact being dropping since the 1980s, particularly after the end of the cold war. This only saw an uptick after the Russian-Georgian war of 2008, and after the 2015 Russian annexation of Crimea, This is hardly the posture of an aggressive alliance. It is also an overstatement to link NATO’s intervention in Afghanistan and middle east, which were in response to different threats, as being legitimate security considerations for Russia.

Mukherjee also accuses Pilvasky of concealing that Ukraine is one of the most poor and corrupt nations of the world and has fascist elements. If being a model country of model citizens, is a precondition to a peaceful and independent existence, most countries in the world would not meet the bar, including Russia and India.

It is also unfair to blame Kyiv alone for the failure of the Minsk agreement, which was fragile to begin with due to a lack of interest in its enforcement by the major world powers. The Russian-backed separatists have also been held responsible for failing to adhere to the ceasefire. The purported claim of an ongoing genocide against Russians in eastern Ukraine is also far from recognised to be true and has in fact been roundly denied as false by international observer institutions.

Even if one were to assume that Russia is indeed a concerned and bona-fide actor, the country made no attempts to first resort to the established international legal order for recourse or a legitimate response (Chapter VI of the UN Charter) . No attempt at a UN Sanction was sought, nor any recourse to the International Court of Justice under the Genocide Convention was sought, before the military build-up and invasion of Ukraine. In fact, it was Ukraine which subsequently approached the ICJ, which then rejected Russia’s claim of genocide in Donetsk and called for Russia to cease its military action. The manner in which the Russian army has conducted its operations and has been received by the so called ‘oppressed’ people of eastern Ukraine also speaks for itself, in the form of mass graves, torture (confirmed by UN Investigators) and more recently the dubious referendums

With regards to the efficacy of sanctions, while Russian wheat and gas may continue to find buyers in Asia for now, the sanctions are bound to affect its long-term economic prospects, as the country is cut off from the global markets and is starved of technology and finance. No modern economy can be truly self-substantiable in the global age. Contrary to what Mukherjee claims, Finland and Sweden joining NATO significantly expands the NATO-Russia border, stretches Russian resources, and augments NATO military capability, permanently changing the strategic balance and power calculus in the region.

The western sanctions regime can also not be dismissed as a US project being forced upon the European countries. The US economy itself has suffered as a result of rising oil prices. The EU has been particularly proactive in formulating and imposing multiple packages of sanctions. It is in the interests of the European community itself to deter future Russian aggression and limits its war fighting capability. Mukherjee is however right to point out that several countries of the global south have not taken strong anti-Russian stances so far. However, it would be ill-advised to assume that this would continue, or that it is justified on principle. India’s stance itself has been growing louder and firmer, as more Russian infractions emerging.

How the world reacts to this act of aggression will also have grave long-term ramifications for the international legal order, particular with respect to other zones of potential conflict such as China and Taiwan. In such light, it is well advisable for countries to remember how their interests are tied to continued respect for the present international legal order.

That being said, the Indian response till now has been measured, cautious and based on real politic and strategic autonomy. It is a very real fact that India cannot afford to ignore its dependence on Russia for oil and defence equipment in the short and the medium term, particularly in a post-Covid fragile economy, rising inflation, and after the recent border stand-off and troop mobilisation against China. Piliavsky’s final argument should still give us a moment of pause and consider the line between practicalities and principle.

Do we, one of the original signatories to the UN charter, really want to be held complicit in history to its flagrant violation, an act of naked aggression, invasion and illegal annexation? Showing neutrality against a wrong doer often produces same results as tacit support. History has shown that such neutrality only delays the inevitable, emboldens rather than appeases an aggressor. One need not look beyond the Munich agreement before the second world war for an example. What if the next such aggression is against our own Arunachal or Ladakh? Would we have the same understanding with mere spectators then? Perhaps this country does need to consider if we do believe in certain lines that should never be crossed, and that certain principles are worth defending, no matter the cost.

The author is an undergraduate student at NLSIU, Bengaluru and a founding editor of LSPR.

Sam Bankman-Fried of FTX and Criminal Liability 

Ritvij Ratn Tiwari

2022 has been a bad year for the crypto market. Crypto firms are facing a cruel bear market. In May 2022, crypto giants like Three Arrows Capital, Voyager Digital and Celsius entered bankruptcy protection. FTX, a cryptocurrency exchange, often seen as the industry’s saviour is going through the same fate.

For the sake of background, it all started on November 2 when CoinDesk reported that Alameda Research, a sister company of FTX, held more FTT tokens than that were traded in the market. This triggered a sell-out of FTT holdings by behemoths like Binance. By November 8, there was a conspicuous liquidity crunch. Resultantly, FTX repeatedly failed to honour customer withdrawals. Sam Bankman-Fried (SBF), the vocal founder and the CEO, faced a lot of backlash from customers around the globe.

In the past, owners and managers of crypto firms like Three Arrows Capital have faced both criminal and civil charges in multiple jurisdictions. This raises the question of the criminal liability of SBF.

Before even looking at it, it is important to acknowledge the question of jurisdiction.  FTX is an offshore business with headquarters in the Bahamas. It can reasonably be argued that the actions of SBF are beyond the reach of U.S. law enforcement. However, a jurisdictional nexus can be established by employing the pointers laid down in United States v. Hoskins. For starters, SBF was an American citizen.

Moreover, it can be shown that he employed “instrumentality of interstate commerce in furtherance of the corrupt payment” by establishing a link between U.S. banks, stateside meetings, or other interactions and FTX.

Now, coming to the kernel of criminal prosecution, the relevant provision in this context is Section 1343 of Chapter 63 of Part 1 of Title 18 of the U.S Codes. Section 1343 defines fraud by wire, radio or television. It lays down a maximum imprisonment of thirty years. Although courts have interpreted the section in multiple contexts, the two prongs that are constant are (1) voluntary and intentional participation in a scheme to defraud another out of money (2) use of interstate wire communications in furtherance of scheme. Interstate wire communications could involve the transmission of words, images, or sound and could happen over a landline, a mobile phone, a computer, or a public internet service. A cryptocurrency exchange is covered well within the purview of interstate wire communication and the question now reduces to the intent of SBF.

It is to be noted that the crypto space is famous for putting in use Twitter as the primary platform of dissemination. When Three Arrows Capital, a crypto-hedge fund was about to collapse, its founders used Twitter and Discord to put forth the fact that they were in a condition to honour the Master Loan Agreement with Similarly, SBF has been vocal on Twitter about the collapse of FTX.  His tweets hinted that FTX had enough liquidity to cover all client withdrawals which gave a false sense of relief to customers.

The reason for the collapse has been well reported: the investment of client assets by FTX in Alameda. SBF denied any such move by FTX and repeatedly claimed that FTX had parked client assets safely. Recent tweets hint that SBF was in fact closely involved in Alameda. However, he denied any link with Alameda in May. This adds to the fact that there was an active concealment by SBF and it was an intentional scheme. For better understanding of the whole situation, parallels can be drawn with the recent Karvy scam in India.

A close perusal of the terms and conditions shows that FTX falsely promised that digital assets were to be always under the control of the customer. This promise was not kept and FTX played with clients’ assets.

A common suggestion flowing across the internet is the defence of incompetence and ignorance. However, it will be difficult to show the same given the vehement statements made by SBF.

However, as has also been noted by Securities and Exchange Commission chair Gary Gensler, in cases like these building of evidence and facts takes time. This is furthered by the fact that the justice system is not thorough with the understanding of cryptocurrency or governance tokens. An illustration of this is clearly apparent in the Patterson Lawsuit in the context of the collapse of TerraForm Labs where the majority of the discussion still revolves around the semantics of the crypto-industry.

The author is an undergraduate student at NLSIU, Bengaluru and Editor, LSPR.