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Power play Joint
responsibility |
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Two drops of life
All about the model
code
Politicians and
diapers
Surrogacy born, law
still in womb Emperor has no
‘parent’ Proposed Bill needs
to address gaps
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Joint responsibility
The
Supreme Court, which had taken suo motu notice of the fracas at the Ramlila Ground in New Delhi in June last year, on Thursday ruled that the government and Baba Ramdev, who was on a fast against corruption, should jointly share the burden, in the ratio of three-to-one, of compensating for the life of the 51-year-old woman who died in the incident, and for the injuries suffered by 48 others. The extraordinary ruling by the Bench comprising Justice B S Chauhan and Justice Swatanter Kumar appears to have laid down the principle that if anything goes wrong at any large meeting or protest, both the organisers and the government would be held responsible. The ruling is also remarkable because it seeks to examine the procedure and conditions for imposing restrictions under Section 144 of the Cr P.C., and reminds the government that such orders cannot be arbitrary and that the police cannot use excessive force. Indeed, after watching video footage, the Bench directed that the section of policemen found throwing bricks and beating people should be prosecuted. Making a distinction between ‘law and order’ and ‘public order’, the Bench has observed that a drunken brawl between two persons can create a ‘law and order’ problem but if they belong to rival communities and one of them tries to incite communal passion, it would threaten ‘public order’. The response of the police in each case, the court stressed, would have to be different. But the court did not find the police action in evicting Baba Ramdev malafide. Although it frowned on the midnight crackdown on protesters who were asleep and hence could not be deemed “to be scheming”, it accepted the government’s obligation to act in anticipation of a breach of peace and public order. While upholding the fundamental right of the citizens to protest, the court dwells at length on the fundamental duties of the citizens, as provided in Article 51 of the Constitution, to promote harmony, to safeguard public property and to abjure violence. Neither the government nor Baba Ramdev can be entirely happy with the ruling, which does seem to fall between two stools in an effort to balance all interests. But the broad features of the ruling appear unexceptionable. Fundamental rights of citizens cannot be taken away or abridged. Restrictions on such rights must be reasonable despite the difficulty in defining what is reasonable with any precision. And, finally, prohibitory orders under Section 144 of the Cr P.C. must satisfy the court that they were necessary to prevent public disorder. |
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Two drops of life
India
last month achieved a momentous landmark. On January 13, it completed a full year without a single polio case being reported, or even the virus being spotted in any of the sewerage samples taken in susceptible areas. Now, the hope is the country would be declared polio-free by 2014; there should be no case reported for three years before that is done. This is the reason to celebrate not just because no child will now be afflicted with the crippling virus. It is also the prize of a concerted effort launched in 1988, when there were two lakh cases reported. In a country afflicted with poverty, an administration often considered ineffective and corruption in every sphere, to have any programme achieve 100 per cent success is amazing, and evidence that it can be replicated in other spheres too (a la Delhi Metro?). The success of the door-to-door immunisation approach, backed by the WHO, UNICEF and Rotary International, now needs to be guarded zealously, for there is always the threat of the virus entering the country through migration from countries still battling the disease. Over the weekend, a polio summit in the capital is to discuss just that with health ministers from Pakistan and Nigeria, the countries where polio is still endemic. Even as India celebrated the success, there was sobering news only last week. The country, along with Nepal, is among only two in South and South-West Asia to be regressing on the UN Millennium Development Goal of halving tuberculosis (TB) deaths and prevalence by 2015. Even Bangladesh and Pakistan are expected to meet the target. The disease infected more than 15 lakh people in 2010 and took three lakh lives. While it is indeed a tough disease to fight, the human and financial costs are too huge to afford the option of failure. DOTS — the supervised-medication programme — is a wonderful strategy to fight the disease, yet there are obviously slip-ups that need to be identified and addressed. There may be lessons in the Polio Eradication
Programme. |
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Eating words has never given me indigestion — Winston Churchill
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All about the model code The
promise of reservation for backward sections of Muslims in UP by Law Minister Salman Khurshid and his censure by the Election Commission (EC) on grounds of violation of the model code of conduct and the subsequent developments have attracted a lot of public attention. The matter was closed by the EC after the minister expressed regrets. But then Mr Beni Prasad Verma, another Union Minister, revived the issue of reservation and the EC has sought his explanation. The tone and tenor of electioneering seem to be frequently attracting the attention of the EC, which is determined to use its disciplinary powers. The commission treated the promise of reservation for Muslims in UP as a violation of the model code of conduct and initiated action accordingly. But the Law Minister has maintained that he has a right to raise an issue which is a matter of public policy. Article 324 of the Constitution vests the superintendence, control and direction of all elections in the EC. It empowers the EC to take all steps necessary to ensure a free and fair poll. An election which is not free and fair is no election at all. In fact, free and fair polls are the sine qua non of democracy. The authority of the EC to take all reasonable steps necessary in this regard is unquestionable. The commission has earned tremendous admiration of the people by performing the gigantic task of conducting elections involving around 800 million voters in a country some of whose regions display disturbing levels of defiance of rule of law and a proclivity for violence. The present confrontation between the Union Ministers and the EC revolves around the issue of violation of the model code. The model code has been evolved by the EC to regulate the conduct of candidates, their agents and political parties based on the experience gained in conducting elections over a long time. Though not backed by any statute, the code has the judicial approval. The EC draws powers from Article 324, which has been described as a “reservoir of powers” by the Supreme Court, which includes the power to issue directions for ensuring free and fair polls. The Supreme Court, in Mohinder Singh Gill vs the Chief Election Commissioner (AIR 1978 SC 851), sums up the constitutional position of the powers of the EC in the following words: “The constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on circumstances … Article 324 is a reservoir of power to act.” The confrontation between the EC and government functionaries is a disturbing trend which can seriously affect the working of constitutional bodies. But is the commission on safe grounds when it terms the minister’s promise a violation of the model code? The code issued by the EC contains seven sections each of which deals with different aspects. Section 7, with the heading “party in power” deals, inter alia, with the do’s and don’ts for ministers during an election. A careful analysis of the EC’s directions would reveal that the statements made by the Union Ministers regarding reservations in favour of the backward sections of Muslims do not, in fact, violate in any of the directions contained in the code. It is well known that reservation for backward sections of Muslims is in conformity with the policy of reservation for backward classes contained in the Constitution. The Constitution does not permit reservation on the basis of religion, but permits it for classes which are educationally and socially backward. Under this scheme, reservation is provided to the Muslims in state services in Kerala, Tamil Nadu, etc. The Union Government also announced 4.5 per cent reservation for minorities out of the quota reserved for the OBCs. Reservation for any class of citizens is a matter of public policy. It is rather difficult to comprehend the EC’s stand that a promise of something which is a matter of public policy during the elections constitutes violation of the code. Election speeches are full of promises which may or may not be fulfilled. Promises are usually made in the party manifestoes which do not attract the model code. Political parties are free to frame policies and make promises to the people. If one party promises reservations, another party has the freedom to inform the people that it is not in the interest of the country. But the point is that both parties should be free to say it. In fact, these promises are the real stuff of an election. Therefore, a promise of reservation, whatever be the percentage, or whoever made it, cannot be construed as a violation of the code. It may be argued that a promise of this kind will bring “undue influence” on a section of the voters which, according to Section 123 of the Representation of People Act, 1951, is a corrupt practice. The model code also contains a direction that no candidate should do a thing which is a corrupt act under the election Law. But it is interesting to note that both the Indian Penal Code (Section 171c) and the Representation of the People Act (Section 123 -2) clearly say that a declaration of a public policy or a promise of public action does not constitute “undue influence”. It is a matter of common experience that election speeches in general are hyperbolic and rhetorical. The voters take the promises made during an election campaign with a large pinch of salt. An interesting observation about the election speeches has been made by the Supreme Court in Kultar Singh Vs Mukhtiar Singh (AIR 1965 SC 141). The Court says, “— it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperbole or exaggerated language or the adoption of metaphors and the extravagance of expression in attacking one another are all part of the game. So when the question about the effect of speeches delivered at election meetings is argued in the cold atmosphere of a judicial chamber some allowance must be made and the impugned speeches must be construed in that light.” These observations clearly illustrate how the judiciary views the election speeches. Nevertheless, it must be said that we must not say or do anything which will have the effect of undermining the prestige of an institution like the Election Commission. The Constitution makers vested great authority in this body for preserving and strengthening democracy. Of course, this authority needs to be exercised in a reasonable manner. The commission can take any step if it advances the cause of free and fair election. It can even issue an order to a particular individual in exercise of its powers. But the Supreme Court has generally taken a liberal view of the speeches made during the elections. No doubt, elections in some measure cloud our vision and limit our perspectives temporarily. But wisdom lies in allowing a certain amount of freedom in airing views, making promises, giving assurances, etc, in an election campaign. The people would certainly be able to decide who deserves their support. No doubt, the strict vigilance of the EC and the enforcement of the code have helped in checking many malpractices during the elections. But a liberal approach with regard to the freedom of speech during an election campaign is in conformity with the wise approach adopted by the apex court in election matters. In a fundamental sense, it would be within the spirit of the model code of
conduct. The writer is a former Secretary-General of the Lok Sabha.
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Politicians and diapers During
an election campaign, the air is full of speeches and the speeches are also full of air. One no longer has to attend public rallies, however, to listen to politicians dwell on what ails the nation. They are on the television all the time, on first name terms with anchors, often calling their “good friends” in other political parties names, stopping short of calling them imbecile. It can be entertaining though. The other day an interviewer asked BJP national president Nitin Gadkari a yorker in cricketing parlance. Isn’t it a shame, she asked, that the Bharatiya Janata Party, supposedly a national party, put up only one Muslim candidate in Uttar Pradesh? Since UP has 404 seats in the Assembly and the Muslim population in the state is estimated to be around 19 per cent, Gadkari was clearly bowled out. But like Virender Sehwag, he put up a brave face. As a political party, he said gravely as a statesman, the BJP did not believe in reservation on the basis of religion. He then went on to eloquently enunciate the party’s stand on quotas for Muslims. The interviewer, to her credit, persisted. But you have not answered my question, she wailed. Why has the BJP fielded only one Muslim candidate? Displaying great patience, befitting a teacher in a classroom, he told her, “You must understand one thing” that the BJP wanted everyone in the country — Hindus, Muslims, Sikhs, Christians, Buddhists, et al — to prosper. Understood ? It took more prodding by her before he finally admitted that it was indeed unfortunate that the BJP “could not find” more than one Muslim candidate in UP. Politicians are yet to catch on to the fact that they provide free entertainment to the nation every time they open their mouth. But while the ‘talking heads’ are often entertaining, more often than not, it is extraordinarily painful to see them move in circles, reducing debates on the TV to the level of college students — incoherent, unsure and yet full of bombast. Sound and fury signifying nothing really. They also come up with few quotable quotes. Contrast this with British and American politicians and the intellectual poverty of our politicians would stand exposed. It is baffling to find few sterling speeches in Hindi either. Even a leader like former President Ronald Reagan, himself the butt of many jokes, is credited to have quipped, “Politics is supposed to be the second, oldest profession. And I have come to realise that it bears a very close resemblance to the first.” Any such statement by Indian politicians would, however, have invited sharp reprimand by editorial writers for trivialising a very serious business! In this season of electoral battles, it is worth recalling a Portuguese saying, which holds that politicians and diapers should be changed frequently and for much the same reason! My favourite is, however, this gem. “Under democracy, one party always devotes its energies to prove that the other party is unfit to rule — both invariably succeed and each one is, of course,
right.”
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Surrogacy born, law still in womb
With no law in India to prohibit the hiring of a surrogate womb, the practice is flourishing, but people involved often end up in complex legal wrangles. A Bill drafted to regulate the phenomenon has been hanging fire, and has shortcomings too
Surrogacy, a new-age phenomenon in assisted parenthood, is gaining ground fast, what with support from the glamour world too. British pop star Elton John and his Canadian filmmaker partner David Furnish became parents of a baby boy born to a surrogate mother in California while our very own film star Aamir Khan and Kiran Rao obtained a child through surrogacy aided by in-vitro fertilisation (IVF). Today, the reproductive tourism industry promoting surrogacy in India is estimated at Rs 25,000 crore, promoted by over 2 lakh IVF clinics with websites offering wombs, sperms and eggs. Surrogacy packages which reportedly cost $1,00,000 in Europe or the US, are easily available in India in the range of $10,000. Surprisingly, surrogate hiring of wombs exists in India even though the Transplantation of Human Organs Act, 1994, bans the sale of “human organs”, loaning of organs and any commercialisation of the trade of human organs. Moreover, surrogates are nowhere as freely available as in India to single parents, gay or unmarried partners, despite the fact that same-sex relationships are not permissible in India. The primordial urge to have a biological child of one’s own flesh, blood and DNA, aided with technology and purchasing power, coupled with the Indian entrepreneurial spirit, has generated this flourishing Indian reproductive tourism industry. AN ANOMALOUS LAW In a more developed country like 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, commercial or not, is unlawful. In Israel, law only accepts the surrogate mother as the real mother and commercial surrogacy is illegal. What then prompts India to enact a proposed law to make surrogacy agreements legally enforceable is the need to protect the genetic parents, surrogate mother and the child. Economic necessity fuels the surrogate trade. Ironically, medical data indicates that in India, there is a need every year of about 1.75 lakh kidneys, 50,000 hearts and 50,000 livers for transplantation, and each year about 1.40 lakh people die waiting for a kidney. Lifesaving organs are not available, but wombs on hire are. Even though commercial surrogacy seems an antithesis of transplantation laws, it is a medically accepted practice, reflected in the 2005 Indian Council of Medical Research (ICMR) Guidelines and the Assisted Reproductive Technology Regulation Bill (ART), 2010, prepared by the Health Ministry. Clearly, surrogacy flourishes legally because it is medically not illegal. No doubt, the Supreme Court in Baby Manji Yamada’s case (2008) 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’.” India therefore, is set to be the only country to legalise commercial surrogacy through the proposed law, even as the phenomenon is practically a reality already. In December 2011, the High Court in London granted parental orders to a British couple under the British Human Fertilisation and Embryology Act, 2008, for their two children born to Indian surrogate mothers after both children were given British passports and allowed to leave India. Sir Nicholas Wall, speaking for the court, held that “it is plainly in the interests of these two children that they should be brought up by Mr and Mrs A. as their parents.” The couple had paid £27,405 for a surrogacy package in India because of lack of surrogate mothers in the UK, as there was a three-year waiting list in the UK. Earlier, even the Indian Supreme Court in September 2008 in the Baby Manji Yamada case had directed the Central government to expeditiously dispose of the request of the grandmother permitting her to transport her surrogate granddaughter born in India through surrogacy. Resultantly, the surrogate baby, whose parents had divorced, was issued an “identity certificate” enabling her journey to Japan. COURTS TO RESCUE After a two-year legal battle in India on behalf of their surrogate sons – Nikolas and Leonard – German couple Jan Balaz and Susan Anna Lohald were allowed to return to Germany after the Supreme Court of India intervened and, in a court hearing on May 26, 2010, the Indian government agreed to provide them with exit permits. The twins were born in Gujarat in January 2008 and registered as children born of a foreign couple through an Indian surrogate mother. Upon being declined birth certificates, Jan Balaz moved the Gujarat High Court, which ruled that since the surrogate mother was an Indian national, the children would also be treated as Indian and would be entitled to passports. However, the Government of India challenged the decision, stating that the toddlers, being surrogate children, could not be granted Indian citizenship, which rendered them stateless. The German authorities had also refused visas to the twins as German law did not recognise surrogacy. Ultimately, Jan Balaz and Susan Lohald went through an inter-country adoption process, upon which the Indian government granted exit permits to the twins to enable their travel to Germany. Clearly, courts worldwide lean to favourably interpret existing laws, aiding surrogacy. Surrogacy is also resorted to by gay couples in India. Israeli gay couple Yonatan and Omer Gher became parents to a child with the help of a Mumbai-based surrogate mother in 2008. However, subsequently, in 2010, Dan Goldberg and Arnon Angel from Israel, another gay couple to whom twin baby boys were born in Mumbai from an Indian surrogate mother, were stranded in India after the refusal of the Jerusalem Family Court to allow a paternity test to initiate the process for Israeli citizenship for the twins. The issue was debated in Israeli Parliament, where the Prime Minister had to intervene for the infants. Ultimately, on appeal, the Jerusalem District Court agreed to hold a DNA test to establish that Dan Goldberg was the father of the boys, Itai and Liron. Once that was established, Goldberg and his twins were granted Israeli passports and returned to Israel in May 2010 — after having remained stranded in Mumbai for over three months. In 2011, a gay Spaniard couple Mauro and Juan became parents of female twins born to them through a surrogate mother in India. More such occurrences are sure to follow in times to come. The author practices law at the Punjab and Haryana High Court and is a Fellow of the International Academy of Matrimonial Lawyers, London.
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Emperor has no ‘parent’ A typical case that demonstrates how in the absence of a specific law on surrogacy the process can get rather difficult to resolve is that of the surrogate child Emperor Kaioyus Van Buren Green, born to a surrogate mother through in-vitro fertilisation (IVF). His mother J. Pearl Linda came from the US with
her husband Eric Dalton’s sperm from a cryo-bank in New York. The ovum was donated by a woman in India, and Emperor was born at a fertility centre in Hyderabad on December 7, 2011, using a surrogate mother. The Hyderabad Regional Passport Officer, however, declined a passport to Emperor, as it was not proved that Linda’s husband was the child’s biological father. Dalton, a Jamacian national, had not come to India as he reportedly suffers from aerophobia (fear of flying by air). There is no Jamacian Embassy in India. Now Linda has three options to enable a travel document for Emperor: Get Eric Dalton to Hyderabad for a DNA test to establish that he is the biological father; approach the US Embassy to get Dalton’s DNA sampling report or blood sample to Hyderabad to ascertain his parentage; or undergo the process of legal adoption/ guardianship. In the absence of a surrogacy law, the 2005 guidelines of the Indian Council of Medical Research are the only enabling provisions, as per which one of the parents should establish the parentage of the surrogate child. Only a DNA test can prove this. Linda is not the biological mother. Hence, only Dalton’s DNA test can do it. Under the Hindu Adoption and Maintenance Act, 1956, only Hindus by religion can adopt in India. Linda is not a Hindu, and can only become a legal guardian of Emperor under the Guardian and Wards Act, 1890. However, without conclusive proof of who is the father, this petition may not be entertained or adjudicated by courts in India. It seems invoking the prerogative writ jurisdiction of a high court may be the only solution possible. |
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Proposed Bill needs to address gaps Given that surrogacy is already being widely practised in India — and is not considered illegal under any existing law — the only deliberation now left is how to regulate surrogacy, prevent exploitation, besides issues of citizenship, nationality and parentage. In this context, the Assisted Reproductive Technology Regulation Bill (ART), 2010, suffers from certain lacunae. The Bill has neither designated, nor authorised or proposes to create any court or judicial forum to resolve issues that will require adjudication in problems arising out of surrogacy. The National and State Advisory Boards proposed by the Bill will not serve the purpose to determine issues of parentage, nationality, issuance of passports, grant of visas and problems of disputed parentage. It is extremely necessary to create a statutory procedure for mandatorily adjudicating these issues before the surrogate child leaves India. Even rampant exploitation of surrogate mothers has to be curbed, checked and punished upon detection. The Bill does not address these issues.
It seems the question whether India should be the surrogate motherhood capital of the world or not is now too late. Social and economic necessities, besides medical professional sponsorships, have ensured that surrogacy is here to stay. Therefore, active legislative intervention to facilitate the correct use of this new technology may be a plausible approach in grappling with commercial surrogacy. The proposed law has to take care that the use of ART and IVF does not graduate to unethical practices of making designer babies by choosing traits or embryo selection now made possible by stem cell research and cloning. Medical personnel must also be guided by a strict law to prevent any malpractices. Above all, trading of any form in human merchandise by other unethical agents in the “business of babies” must be curbed with a heavy hand. A regulatory law supported by a legislative machinery and effective rules to look at all problems associated with surrogacy must be put in place. Besides, embassies and high commissions of various countries in India are also looking for a law which will help them make their own policies for adapting to surrogacy, besides resolving issues of surrogate children born to their countrymen to enable them to achieve dreams of parenthood. Thus, a proactive, well-drafted surrogacy law requires to be urgently put in place without any delay. This it seems is, now the call of the born surrogate child.
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Transferring an egg cell after in-vitro fertilisation to a rented womb is the plain meaning of surrogacy. The sperm or the egg, or both, may be of the parents. The availability of wombs may be commercial or altruistic. As proposed under the Assisted Reproductive Technology Regulation Bill, 2010, “surrogacy” means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes (sperm or oocyte) belong to her or her husband, with the intention to carry it to term and hand over the child to the person or persons for whom she is acting as a surrogate.