Krishnadas Rajagopal in The Indian Express
UNDER THE CJI KAPADIA THE SUPREME COURT HAS TAKEN A DIFFERENT LINE IN THREE DIFFERENT CASES
Three separate decisions, all taken in July 2010, by the present guard of judges at the Supreme Court under Chief Justice of India S H Kapadia seem to take a different line from the orders passed by former Chief Justice of India K G Balakrishnan.
Ashok Rai Case
The first case is that of Ashok Rai, a rape convict whose punishment was reduced by the Delhi High Court on February 9, 2009 from life sentence to five-and-a-half years in prison. The High Court reasoned that Rai must have “redeemed” himself because he cracked the civil services exams during his time behind bars. He had already spent five-and-a-half years in prison by that time, and was released immediately.
But the National Commission for Women (NCW) challenged the High Court’s rationale. The women’s panel said Rai had not even completed the minimum imprisonment for a man found guilty of rape.
On April 2, 2009, Justice Balakrishnan’s Bench agreed with the NCW and issued notices to the Delhi Police and Rai.
But on July 5, 2010, the hearing before Justice H S Bedi, to whom the case was transferred for further hearing, began with a shock for the NCW. The Bench asked the NCW to prove its “locus standi” to move court against Rai.
BSP Poll Symbol
The second instance dates back to February 22, 2010, when a Bench led by then CJI Balakrishnan gave the Election Commission three months to inquire into the alleged misuse of the BSP’s poll symbol of the elephant — whether statues of elephants built at public cost was a violation of the election code.
The order was based on a complaint by Advocate Ravi Kant on May 15, 2009 to “freeze the election symbol of ‘elephant’ allotted to BSP”.
On July 9, 2010, a Bench led by present CJI S H Kapadia also gave three months time to EC — but this time its instructions were to check if Kant’s complaint against the Mayawati government was legally sustainable or not.
The latest order comes after a beleaguered EC on July 2, 2010 complained to the Supreme Court that the UP government was playing truant. It said the inquiry ordered by the apex court was truly “handicapped by the defiant and uncooperative stance of Uttar Pradesh”.
But this time, Chief Justice Kapadia’s Bench asked the EC to first check if Ravi Kant’s complaint was “maintainable” before proceeding any further.
On the other hand, the court assured EC that once Kant’s allegations were found “maintainable” under law, no efforts would be spared to bring the UP government to line.
In the third case, NGO Good Governance Foundation challenged the allegiance to the ideal of socialism as a pre-condition for political parties for getting registered with EC. The NGO challenged the validity of both the 42nd Amendment and Section 29A(5) of the Representation of Peoples Act, 1951. The amendment had introduced the word “socialism” in the Preamble of the Constitution, whereas the legal provision required all political parties to swear allegiance to the principles of the socialism.
On January 8, 2008, former CJI Balakrishnan said he would hear the matter only if the NGO restricted its challenge to the 1951 Act and did not delve into the realm of the Constitution. Notices were issued to the government and the EC.
However, on July 12, 2010, the Bench led by CJI Kapadia allowed senior advocate Fali S Nariman, who was appearing for the NGO, to withdraw the case. Nariman chose to opt out after the bench said the issue was too “academic and hypothetical”. “This question is highly academic. Let us not go into it now,” the Chief Justice had said as he closed the two-year-old PIL.
TIMES OF INDIA
NEW DELHI: The Delhi High Court has suggested that Delhi University and Bar Council of India frame rules allowing relaxation of attendance norms for students missing classes due to pregnancy. Reminding the two institutions that ‘‘society today is changing at a rapid pace and we must be in tune with the realities’’, the court on Monday admitted the petitions of two Law Faculty students who were short of attendance because of pregnancy.
The court went a step ahead and said that pregnancies of single women should also be treated sympathetically by educational institutions as far as attendance is concerned. ‘‘The Supreme Court has given liberty to live-in relationships and it has held that pre-marital sex isn’t an offence,’’ Justice Kailash Gambhir observed while admitting the two petitions through lawyer R K Saini.
The students, both married, claimed that DU had ignored their plea that the shortfall in their attendance was because of the advanced stage of their pregnancies. HC ‘‘suggested’’ to the Bar Council of India (BCI) — the body that regulates legal education in the country — that it frame rules for pregnant LLB students allowing them relaxation in attendance.
‘‘If any woman candidate is deprived or detained in any of the semesters just on the ground that she could not attend classes being in advanced stage of pregnancy or due to delivery, such an act would not only be completely in negation of the conscience of the Constitution but also of women’s rights and gender equality this nation has long been striving for,’’ the court noted, dismissing the arguments of the university.
At the same time, the court dismissed a batch of petitions filed by other LLB students seeking a direction to DU to declare their results which were withheld because they had failed to meet the 66% attendance criterion. The judge remarked, ‘‘It is high time law students understand that there is no royal road to education and education teaches only those in attendance.
An expert committee has got ready the Draft Bill for legalising surrogacy. After the Union Cabinet’s consideration, The Assisted Reproductive Technology (Regulation) Bill, 2010, will be tabled in the monsoon session of Parliament. Is the proposed legislation giving legal rights to parents and others to have surrogate babies path-breaking? A close look
By Anil Malhotra in The Tribune
THE Union Cabinet will shortly examine the draft Assisted Reproductive Technology (Regulation) Bill, 2010, and then table it in Parliament.
Floated earlier in 2008, it envisages a national framework for the regulation and supervision of Assisted Reproductive Technology (ART). It legalises commercial surrogacy for single persons, married or unmarried couples. When it becomes law, the surrogate mother will have to enter into a legally enforceable surrogacy agreement.
It states that foreigners or NRIs coming to India to rent a womb will have to submit documentation confirming that their country of residence recognises surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. This, perhaps, is in view of the two-year legal battle of the surrogate sons, Nikolas and Leonard, born to the German couple Jan Balaz and Susan Lohlad. The two kids, born to an Indian surrogate mother in January 2008, were rendered stateless with neither German or Indian citizenship. Subsequently, the Supreme Court got them exit permits in May 2010.
Similarly, after being stranded in Mumbai, a gay Israeli couple was granted Israeli passports only after a DNA paternity established in May 2010 that gay Dan Goldberg was the father of Itai and Liron born to a surrogate mother in Mumbai. This followed a debate in Knesset (Israeli Parliament) and the Jerusalem District Court ruled in appeal that it was in the children’s best interest to hold the DNA test to establish their paternity.
Before Parliament passes the Bill, it must be debated thoroughly. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the Bill a compromise in surpassing complicated Indian adoption procedures?
Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries?
The Draft Bill lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with the existing laws. These pitfalls need to be examined closely before enacting the legislation.
In the UK, no contract or surrogacy agreement is legally binding. In most states in the US, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy, whether commercial or not, is unlawful.
What, then, prompts India to plan a legislation to protect the genetic parents, surrogate mother and the child? India’s surrogacy boom began in January 2004 with a grandmother delivering her daughter’s twins. The success spawned a virtual cottage industry in Gujarat. Today, India boasts of being the first to legalise commercial surrogacy soon to legitimise both intra-and inter-country surrogacy.
The would-be parents from the Indian diaspora in the US, the UK and Canada and foreigners from Malaysia, the UAE, Afghanistan, Indonesia, Uzbekistan, Pakistan besides Nepal are descending on sperm banks and In-vitro Fertilisation (IVF) centres in India looking for South Asian genetic traits of perfect sperm donors.
Moreover, renting wombs has become an easy and cheap option in India. Relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and the lack of any law to regulate these practices is attracting both foreigners and NRIs to sperm banks and surrogate mothers.
Surreptitiously, India has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs 25,000 crore today. Clinically called ART, it has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer artificial insemination, IVF and surrogacy.
In Baby Manji Yamada’s case (2008), the Supreme Court observed that “commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms”. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. Surely, the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy.
In the absence of any law to govern surrogacy, the Indian Council of Medical Research guidelines (2005) for accreditation, supervision and regulation of ART clinics in India are often violated. Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant and surrogate mothers are misused with impunity.
Surrogacy in the UK, the US and Australia costs more than US $ 50,000 whereas advertisements on websites in India give varying costs in the range of US $ 10,000 and offer egg donors and surrogate mothers. It is a free trading market, flourishing and thriving in the business of babies.
The writer is Advocate, the Supreme Court of India and the Punjab and Haryana High Court
A step in the right direction
THE Draft Assisted Reproductive Technology (Regulation) Bill, 2010, is a step in the right direction. It will help regulate the functioning of the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal. The setting up of ART banks will ensure quality check and accountability.
Everything would be in black and white and legal redressal for any failures will be possible. At present, there is no accountability of the IVF centres as they can deny everything as legally they don’t even exist.
However, with things becoming easier and legal, people might become overenthusiastic and have a baby for which they are not emotionally prepared on a long-term basis. Neglect and abuse of these children is an issue of concern and a mechanism should be put in place for monitoring their progress by social agencies.
— Dr Anju Huria, Gynaecologist, Chandigarh
Repugnant to human dignity
It is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child. These words of the Warnock Committee reporting to the British Government in 1984 remain unanswerable even today. The proposed Bill, however, legalises not only surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation” or “on mutually agreed financial terms”.
Whatever the intentions, its inevitable consequence would be the creation of a market specialising in the sale and purchase of babies, or as the Court of Appeal in England put it in 1985, in “a kind of baby-farming operation of a wholly distasteful and lamentable kind”. The only proper way to pursue the Bill would be to abandon it.
— Anupam Gupta, Senior Advocate, Punjab and Haryana High Court
Negative impact on society
For infertile couples wanting to have children, the ART would make things easier as regulations will be there for the entire process. But if it encourages single parenthood, it will not be in the interest of the children born out of such an arrangement and thus will have a negative impact on society.
Family togetherness, in traditional terms of having a father, mother and brother/sister, is important for the upbringing of any child and the same cannot be provided by gay or lesbian couples or individuals. Children born to such couples or individuals may lack confidence. It will definitely affect the children in the long run.
— Dr B.S. Chavan, Head, Psychiatry Department, Govt Medical College Hospital, Sector 32, Chandigarh
Don’t keep doctors out of the loop
Those who would run ART banks will not be professional doctors and hence won’t be able to make the right decision. They will not have clinical knowledge about the quality of semen or oocytes.Doctors alone can run the IVF clinics. Keeping them out of the loop will not be in the interest of either the surrogate mothers or those hiring them.
— Dr Umesh N. Jindal, Jindal IVF and Sant Memorial Nursing Home, Sector 20, Chandigarh
Rent a womb: The proposed legislation
- Renting of womb is legal in India but there is no law at present to regulate surrogacy. If Parliament passes the Assisted Reproductive Technology (ART) Bill, renting a womb by Indian and foreign couples looking for surrogate mothers is expected to become hassle-free.
- The Draft Bill gives gays, singles the legal right to have surrogate babies. It defines a ‘couple’ as two persons living together and having a sexual relationship. After the Delhi High Court verdict on homosexuality, even two gay men can claim to be a couple.
- A woman in the age-group of 21-35 can become a surrogate mother. She will be allowed five live births, including her own children. She will not be allowed to donate oocytes more than six times in her life.
- In case of a single man or woman, the baby will be his/her legitimate child.
- A child born to an unmarried couple using a surrogate mother and with the consent of both parties shall be the legitimate child of both of them.
- During the gestation period, the couple will bear the surrogate’s expenses and give monetary help to her. The couple may enter into an agreement with the surrogate.
- Foreign couples must submit two certificates — one on their country’s surrogacy policy and the other stating that the child born to the surrogate mother will get their country’s citizenship.
- Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation.
- ART banks, accredited by the government, will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor.
- State boards will give accreditation to ART banks — private and government. The board will have a registration authority which, in turn, will maintain a list of all In-vitro Fertilisation (IVF) centres and monitor their functioning.
- The Law Commission of India (2009) described ART industry as a “Rs 25,000-crore pot of gold”. It recommended only altruistic surrogacy arrangements and not commercial ones. But the Draft Bill legalises commercial surrogacy as well.
The State cannot extract stray sentences and come to a finding that a book as a whole ought to be banned or forfeited, the Supreme Court has held.
A Bench of Justices D.K. Jain and H.L. Dattu — while rejecting the Maharashtra government’s stand justifying the notification for forfeiture of Shivaji-Hindu King in Islamic India written by James W. Laine — said: “The intention of the author has to be gathered from the language, contents and import of the offending material.”
Writing the judgment, Justice Jain said: “The effect of the words used in the offending material must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing.”
The Bench pointed out that the intention to cause disorder or incite people to violence was the sine qua non of the offence under Section 153-A of the IPC, and the prosecution had to prove prima facie the existence of mens rea on the part of the accused.
“The intention of the publication has to be judged primarily by the language of the book, the circumstances in which it was written and published; the matter complained of must be read as a whole and one cannot rely on strongly worded and isolated passages for proving the charge, nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.”
The Maharashtra government — by a January 15, 2004 notification, under Section 95(1) of the Criminal Procedure Code — ordered that every copy of Laine’s book be seized as its circulation was likely to result in a breach of peace and tranquillity and maintenance of harmony.
The notification was subsequently withdrawn and another was issued in December 2006 for the same purpose.
On a writ petition by Sangharaj Damodar Rupawate and others, the Bombay High Court quashed this notification. Dismissing the State’s appeal against this judgment, the Supreme Court said: “It is manifest that the notification does not identify the communities between which the book caused or is likely to cause enmity. Therefore, it cannot be found out from the notification as to which communities got outraged by the publication of the book or if it had caused hatred and animosity between particular communities or groups.”
Holding the notification invalid, the Bench declined to interfere with the High Court judgment.