State of denial

on Tuesday, August 5, 2008

Jug Suraiya

The case of the Mumbai couple, the Mehtas, who have been disallowed by the high court from preventing the birth of their unborn foetus whom doctors have prenatally diagnosed as having a serious heart problem gives rise to a thicket of legal and ethical questions. While female infanticide, often performed by quacks in unauthorised and insanitary holein-the-wall ‘clinics’, are horrifyingly commonplace, the statute book does not permit law-abiding couples like the Mehtas to terminate pregnancy if the foetus is more than 20 weeks old — even if the foetus has been diagnosed with a lifethreatening condition from birth onward. There is a blatant anomaly here that needs to be addressed, not just by jurists and ethicists but by the community at large.
The judgment also raises the issue of ‘mercy killing’, or euthanasia, which again is disallowed by the Indian state on the legitimate grounds that the sanction to take the life of individuals who have not of their own volition sought the termination of their existence (to end the agony of an incurable disease, for example) is tantamount to condoning murder. However, the law confuses ‘mercy killing’ — where others decide on the termination of someone’s life (a critically ill person, a foetus) — and suicide, or the termination of one’s own existence. Many who oppose ‘mercy killing’, on grounds of its dangerous potential for misuse, would on moral and philosophical principles support the right of an individual to terminate his own life, should he after sustained and reasoned consideration find that existence unbearable for physical or spiritual reasons. Indeed, many might aver that as the right to life is (supposedly) a basic right, its obverse, the right to terminate one’s life, must also be deemed to be equally inviolable.
Apart from such life-and-death issues, the Mehta case reveals the fundamentally flawed relationship between the Indian state and its citizens. Whether it is the termination of pregnancy or one’s own life, or smoking in public (which some would equate with both suicide and manslaughter), or taking photographs of such putatively ‘sensitive’ facilities like airports, the Indian state largely manifests itself in the life of its citizenry as a naysayer. It’s always ‘No — you can’t do this’; never, or hardly ever, ‘Yes — you can do this’.
The hallmark of the Indian state is denial, the power of veto. Its injunctions are almost always negative, rarely affirmative. It’s always: ‘You can’t smoke’; ‘You can’t shut down your factory or business even if it’s losing money’; ‘You can’t be in contempt of the court or of Parliament’. It’s never: ‘Yes, you can and must have clean drinking water and basic health care’; ‘Yes, you can be enabled to earn your livelihood by dint of your own enterprise’; ‘Yes, you can question courts or Parliament why they so often seem to hold you in contempt’.
If India remains a largely poor and underdeveloped country, which it does, it is mainly because of its negative laws, its laws of denial which instead of emancipating and enabling its citizens have shackled and disenabled them. Why can’t India have more affirmative, freedom-enhancing instead of freedom-depriving laws? (Caste quotas for seats is not affirmative legislation; it is the disguised denial of merit on the pretext of social equity.) Because our political masters see themselves not as providers of governance but as wielders of power. Moreover, and wrongly, they see power as a zero-sum game: the more you deprive others of it, the more you have for yourself.
That’s why one of the few affirmative laws we do have is not just the right but the obligation to vote (since there is no negative vote by which you can discredit all the contestants in an election, your vote is less an exercise in choice than an enforcement of duty). That’s the one right our political leaders are only too willing to grant us. For they know that when we vote them into power, we vote ourselves out of it. We contribute to our own state of denial.


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