GS Paper: GS2-05.Comparison of Indian constitutional scheme with other countries

Context

With the US Supreme Court’s overturning of abortion as a constitutionally guaranteed right, America has taken another step towards democratic backsliding.

Background of the Roe v Wade case

• Bodily autonomy: Roe, the 1973 outcome of an unmarried woman’s crusade for bodily autonomy, had declared overbroad, and consequently unconstitutional, a provision of the Texas Penal Code which permitted only those abortions that were “procured or attempted by medical advice to save the life of the mother”.
• Right to abortion: While locating the right of privacy within the guarantee of personal liberty enshrined in the fourteenth amendment of the American constitution, Roe embodies a supervening constitutional right to abortion emanating from this right of privacy.
• The right to abort was held to be a constitutionally protected right within the right of privacy.
• Recognition of states’ rights: The decision simultaneously recognised the state’s interest in protecting the life of the foetus as also the life of the mother. 
• Roe is not only relevant as a progressive trailblazer for reproductive rights in the United States but is also fundamental to constitutional jurisprudence globally for the interpretative tools it employed.

Overturning of Roe Vs Wade case

• The US Supreme Court on June 24 overturned a half-century-old right to abortion, granted by a 1973 Supreme Court decision in the Roe vs Wade case.
• No nationwide right to abortion: With a 5-4 majority, the court has said that American women have no nationwide right to abortion.
• Rather, state legislatures should decide whether women can have that right in their respective states.
• Concerns about the life of the unbors: In the court’s opinion, the right to privacy stemming from the 14th Amendment is not relevant, for abortion concerns not only the pregnant woman but also the life of the unborn.
• Not mentioned in the 1787 constitution: Moreover, the court said, abortion is neither “enumerated” as a right in the original 1787 constitution nor is it consistent with American history and tradition.
• Taking away the right once granted: In a democracy, can a right once granted be taken away?
• As the world’s oldest surviving democracy, the United States has figured prominently in this debate.
• With the overturning of Roe vs Wade, this debate has now become wider.

Was the right to abortion constitutionally justified?

• Protection of liberty and privacy: The 1973 court decision allowing the right to abortion was based on the 14th Constitutional Amendment (1868).
• Even though abortion was not mentioned in the 1787 US Constitution, abortion’s defence was derived from the 1868 Amendment
• This Amendment, the court said, allowed protection of liberty and privacy, something the state could not impinge upon.
• Not absolute right: The 1973 court also argued that this right was not absolute, limited as it would be by considerations of “protecting potential life”.

Issues with the overturning of Roe Vs. Wade case

• 1] No constitution can anticipate the evolution of rights:  Abortion was not mentioned in the 1787 constitution, nor explicitly in the 1868 amendment.
• That is because women were not autonomous political agents at that time.
• Until they were given the right to vote in 1920, they were not a constitutional category in the US, as was true virtually everywhere in the world.
• Women are autonomous agents today. Norms change; rights evolve.
• 2] Ignores rape and incest:  As the court’s dissent note puts it, this majority decision ignore rape and incest.
• If abortion as a right is dissolved, women can be forced to give such unwanted births.
• The majority decision of the court is silent on this important matter.
• 3] Against the right to participate equally in economic and social life: Having a child is not simply a deeply moral obligation to the unborn.
• It is also a decision that affects “the ability of women to participate equally in (the nation’s) economic and social life”.
• These words are from a later decision, known as Casey (1992), when the US Supreme Court added the concept of “undue burdens” to support the idea of abortion.
• 4] Right over body ignored: Men don’t have to deal physically with pregnancy, whereas the foetus grows inside a woman’s body for nine months.
•  If men have the right over their bodies, which can’t be taken away by the government,then women should also have autonomy over their bodies as well.
•  Maternity must be a voluntary choice.
• There is no going back to the notion of rights as they were viewed in the 18th century — unequal, unneutral, unbalanced.

Conclusion

Typically, as they evolve and deepen, democracies allow the arc of rights to broaden further, not retreat. After this judgment in the US, the stakes have become much higher and the democratic challenges bigger.

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Context

The leaked Roe vs Wade draft opinion has been in the news for its possible impact on abortion rights, but it also paves the way for the erosion of gay rights in America.

Background of abortion rights cases in the U.S.

•  Almost 50 years earlier, the U.S. Supreme Court held in Roe vs Wade(1973) that it was unconstitutional for states to ban or restrict abortions before fetal viability.
• Later, Planned Parenthood of Southeastern Pennsylvania vs Casey (1992) reaffirmed Roe’s central holding on viability.
• In December 2021, the U.S. Supreme Court concluded oral arguments in Dobbs vs Jackson Women’s Health Organization, an ongoing case that looks at a 2018 Mississippi law (The Gestational Age Act) that bans most abortions after 15 weeks.
• Keeping Roe and Casey in mind, lower courts permanently enjoined the Mississippi law, but the case eventually moved up to the Supreme Court, with the following question: are all pre-viability prohibitions on elective abortions unconstitutional?
• This question (and the court’s acceptance to answer it) is at the heart of Roe and Casey because the Roe court had already decided that answer in the affirmative back in 1973; and this was re-affirmed in 1992 by the Casey court.
• The leaked first draft of the court’s majority decision in Dobbs, however, departs from precedent and signals a completely different turn.

Originalist reading of the US Constitution

• A running theme in this first draft of the Dobbs judgment was the court’s emphasis on originalism.
• The very first page of the draft says that “the constitution makes no mention of abortion”.
• On page 9 it reads “the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
• An originalist reading of the Constitution and an application of similar reasoning as the one applied in this draft opinion (minus the emphasis on protecting “life or ‘potential life”) could invalidate all rights for gay and lesbian Americans.

Implications for other rights

• Gay rights do not have any place in American history and tradition; it is quite the opposite with American history.
•  Simply put, a rollback of Roe and Casey could allow state legislatures across the country to re-instate bans or restrictions on gay rights such as limitations on same-sex couple adoptions or sexuality education in schools.
• Moreover, because the Constitution makes no explicit mention of “privacy”, “sexual orientation”, “gay”, “lesbian”, or “gay rights” anywhere, these rights could be challenged further.
• The constitutional recognition of same-sex marriage is, after all, only a recent phenomenon, both globally and nationally.
•  In 1992, the Casey court affirmed what was already decided two decades ago in Roe — namely, that women in America had the “liberty” to an abortion under the Fourteenth Amendment.
• However, the Dobbs draft ruling discards this right to “liberty” just as it does the right to “privacy”.
•  By specifically re-defining “liberty” and calling into question its applicability in the case of abortions, the court paves the way for potentially reviewing other “liberty” rights not explicitly mentioned in the Constitution — such as the right to travel ( Kent vs Dulles, 1958), the right to inter-racial marriage ( Loving vs Virginia, 1967), and the right to engage in same-sex activity in private ( Lawrence vs Texas, 2003), among others.

Conclusion

The bottom line is that if 50 year-old constitutionally guaranteed rights could be revoked today, then more recent and similarly, situated rights could also be revoked under an originalist reading of the Constitution.

In the recently concluded presidential election in the U.S., the delay in announcing the result and issue of denial of the election results by the incumbent has brought into focus the role played by flaws in the Americal democratic system in the conduct of the election. This article compares the powers of the elections bodies in the U.S. and India.

Powers of ECI

• Indian Constitution has given the ECI enormous power to be exercised during the course of elections, and strictly on other election-related matters.
• By virtue of being the custodian of the electoral roll, all matters related to keeping the roll updated, fall under the ECI’s domain.
• Even the higher judiciary does not interfere during the course of the election process.
• Our Constitution’s fathers decided to limit the role of the judiciary in India to the post-election period, when election petitions may be filed.
• This was done to avoid the impeding of the election process and delay election results interminably.

Comparing the powers

• The U.S. Federal Election Commission has a much narrower mandate than its Indian equivalent-Election Commission of India.
• The Federal Election Commission was established comparatively recently — 1975, with the special mandate to regulate campaign finance issues.
• As a watchdog, it is meant to disclose campaign finance information, to enforce the law regarding campaign contributions, and oversee public funding of the presidential election.
• The Federal Election Commission is led by six Commissioners.
• These six posts are supposed to be equally shared by Democrats and Republicans, and too have to be confirmed by the Senate.
• This leads to decision making divided on partisan lines.

What India can learn From the election process in the U.S.

• In the 2016 U.S. election, almost a quarter of the votes counted arose from postal and early balloting.
• In India we have confined postal ballots to only a few categories, of largely government staff (for example those on election duty) as well as the police or armed forces.
• In these difficult times of the novel coronavirus pandemic, we need to widen this base to include all senior citizens and anyone else who may find it convenient to cast their vote early.

Consider the question “Powers of the Election Commission of India are wider when compared with its counterpart in the U.S. In light of this, compare the powers of the two bodies and how these wide powers have enabled smooth power transfers in India.” 

Conclusion

In its functioning, Election Commission of India has broad powers as compared to its counterpart in the U.S. which has helped India see a smooth power transfer from the first election in India in 1951-52 and every single election since.