Ban on Surrogacy Bazar

 Parma

nand PandeyFilmmaker Karan Johar has made us all aware of how ecstatic he is at becoming the father of twins born to a surrogate mother. As a single father, he would have been well aware that a Surrogacy Regulation Bill is pending in parliament which, once passed, will make his actions illegal and even fetch him a 10-year jail term. Johar, and other celebrities like Aamir Khan and Shah Rukh Khan who also have children born through surrogacy, are fortunate since the proposed bill, due to be passed shortly, would have branded them as criminals. In fact, the bill is not just draconian, it flies in the face of Articles 14 and 21 of the constitution which guarantees “equality before the law and equal protection of laws to all” and “protection of life and personal liberty of all persons”.

The Surrogacy Regulation Bill proposes a blanket ban on commercial surrogacy. He restricts ethical and altruistic surrogacy to legally wedded infertile Indian couples who have been married for at least five years. The husband must be between 26 and 55 years and the wife, between 23 and 50. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, and gay and lesbian couples are barred from commissioning the services of a surrogate mother. Only a married blood relative, who must have herself borne a child and is not an NRI or a foreigner, can be a surrogate mother, but only once in a lifetime. Indian couples with biological or adopted children are prohibited from having children through surrogacy. Commercial surrogacy will result in a jail term of at least ten years and a fine of up to Rs 10 lakh.

EXPLOITED AND MISUSED

In India, surrogacy has certainly been exploited and misused but the proposed Bill is like throwing out the baby with the bathwater, literally. Surrogacy has thrown up many contentious questions of law and ethics. There are innumerable examples when children have been born through niyog, a type of surrogacy. However, with the development of medical science, surrogacy has assumed the form of a bazaar leading to the exploitation of poor, illiterate women, mostly from rural backgrounds. Women are often persuaded to participate by their spouses or middlemen to earn easy money but they have no rights when it comes to a decision regarding their own bodies.

Ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy.

Surrogacy is of two types: altruistic and commercial. A woman who bears a child for her infertile sister or a mother who gives birth to her infertile daughter’s child is altruistic but when a woman allows her womb-on-rent, it becomes commercial surrogacy. India had become the hub of “surrogacy tourism” for nearly two decades and to curb it, the cabinet approved the Surrogacy Regulation Bill, 2016, yet to be enacted into law by parliament. The bill is still being examined by a parliamentary standing committee and is likely to be finalised soon. Had this bill become an act, Karan Johar and others of his ilk like Tusshar Kapoor, Shah Rukh Khan and Aamir Khan would have been in trouble.

The Supreme Court has also been flooded with a bunch of petitions seeking direction to make representations before the parliamentary committee. They want inclusion of specific provisions and so far, the Court has ruled in favour of only one of the petitions. What could inspire legal challenges is the fact that the proposed law is very stringent and flies into the face of the two articles mentioned in the constitution earlier.

STATE INTERFERENCE

Therefore, restricting conditional surrogacy to married Indian couples and disqualifying others based on marital status, sexual orientation and age do not qualify the test of equality. The right to life includes the right to reproductive autonomy like those of procreation and parenthood. Hence, ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy. Infertility cannot be a prudent condition to undertake surrogacy as an Alternative Reproductive Technology. Barring foreigners to prevent the misuse of surrogacy could prove to be counterproductive because the yardstick governing domestic altruistic surrogacy could lead to corruption and exploitation, pushing surrogacy into unethical hands and leading to an underground abusive trade in surrogacy.

What happens to the family of the surrogate mother if she loses her life in the process of childbirth?

Once altruistic surrogacy is legalised, there is no proof that it will not lead to a commercial market. If it is legalised, then a woman will bear a child as laid out in the contract and the black market will certainly develop. Another question which is often asked is whether altruistic surrogacy is more humane or is it just like trafficking. The distinction between altruistic and commercial surrogacy is, in fact, very thin because in both cases, a woman is reduced to a “container or vessel”. Instead of having an existential and spiritual experience, the woman’s pregnancy is made to serve others.

There are many more issues which have not been addressed in the proposed bill such as what would be the rights of the child if the adoptive parents reject it midway or after birth or if the surrogate mother faces health issues during and after pregnancy. What happens to the family of the surrogate mother if she loses her life in the process of childbirth? Why should those who have married late in life wait for five years till they can opt for surrogacy? What about single women who don’t want to marry but want to be mothers nevertheless. Surrogacy agreements are made under the Indian Contract Act of 1872 and other applicable laws, but in practice, they are often violated. The proposed Bill, once enacted, is certain to open a Pandora’s Box.

Video Recordings to end the Opacity in the Courts

      It is an oft-repeated saying that ‘sunlight is the best disinfectant’. There is no denying that transparency in every sphere of life works like auto-cleaner while the opacity breeds suspicion and corruption. It is, therefore, indeed laudable that the Supreme Court has taken up the cause of transparency in the right earnest by directing the audio-video recording of the court proceedings across the country.  The benefits of video recordings will far outweigh the disadvantages and bring order and solemnity to the proceedings. It has been a long-standing demand of the people throughout the country that the proceedings of the court should be recorded to ensure good conduct of the advocates and the judges.

         It may be mentioned that the Chief Justice of India and the Prime minister have already spoken about the setting up of e-courts in the country as a method of reducing pending litigation and introducing transparency. There are several systems of e-courts that are successfully functioning in other countries. One major benefit of this system, which could be introduced even in our existing system, is the transcription of court proceedings, which can be recorded electronically verbatim and transcribed instantly. The transcripts can be made available to the parties of the proceedings at the end of the day. There are serious advantages of this system for all - the judges, lawyers and parties to the litigation. Since every word of the arguments gets recorded, transparency and clarity are inherent. This brings ease when a case is taken in appeal or an order is up for review. Counsel too benefit by having details of arguments recorded for the next day's preparation in the case. The litigants have complete clarity on their case even if not present in court. A win-win for all. With the availability of technology, this system would be an excellent way to introduce E-Systems. 

        Video recording of the proceedings is a path-breaking and tectonic change in the functioning of the Indian courts. Although Section 327 of the Criminal Procedure Code already provides that ‘the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court to which the public generally may have access’. The second part of the same section says for the in-camera trial of causes related to rapes.  Therefore, this direction of the Supreme court is the major extension of the procedure that is laid down in the Criminal Procedure Code. It is here the technology will come into full play for the enormous benefit of the people.  Till now the general public and others have been depending on the sketchy and many times lop-sided reporting of the proceedings by the media. This has also caused a number of times consternation among the people, advocates and judges.

        One observation of the Supreme Court bench consisting of Justice Adarsh Kumar Goel and Justice U.U. Lalit will go down in the history in golden letters that ‘there is no privacy in the court, what comes to the court is all public’. The Judges, in the course of the hearing, also said that constitutional courts in other countries have already the provision of audio and video recording because it is not a matter of the privacy of the judges. Citing the example of the Supreme Court of United States of America the bench said that their proceedings are also available on the ‘YouTube’.

        The beginning of the end of opacity, in fact, started on 28^th March this year when the Supreme Court directed that at least two districts in every State and Union Territory shall install CCTV cameras at important locations in court complexes. Later in the next date of hearing the Court further observed that ‘the Supreme Court and the High courts are the courts of the records being the constitutional courts, therefore, everything should be recorded as long as it does not impede the proceedings’. The Court said that though our earlier direction was to install CCTV cameras in two districts in every State/Union Territory, with the experience now gained, it is desirable that CCTV cameras are installed in all courts. 

       Pursuant to the direction of the Supreme Court the Union Law Ministry swung into motion and it found to its pleasant surprise that fifteen High Courts of the country have already implemented it and other High Courts are in the process of installing the CCTV cameras. The Additional Solicitor General Ms Pinky Anand, who appeared for the Central government produced an affidavit setting out the progress made in this regard. It reveals that most of the fifteen high courts that replied have followed the Supreme Court’s direction to set up CCTV facilities in at least two districts, and are using a phased approach to do the same in other districts. In addition to these High Courts, as many as nine tribunals, including the NCLAT, TDSAT, CAT and IPAB, also responded with progress on the issue. Nine high courts – those of Bombay, Gauhati, Jammu & Kashmir, Jharkhand, Kerala, Orissa, Madhya Pradesh, Meghalaya and Uttarakhand – are yet to respond.

        In spite of the open court hearings, the reporting of the court proceedings has been a zealously guarded affair. The to and fro between lawyers and judges, the submission made by the advocates and questions asked from the bench and reply there too given by the advocates have hitherto been beyond the eye of the camera or the ear of a recorder. Hence it will be, without doubt, a paradigm shift in the Supreme Court reporting. It may be noted here that only a few years ago, the proceedings of the Parliament and various legislative assemblies of the country were not within the reach of the common man of the country. Only the accredited correspondents were allowed to see the proceedings of the legislatures for report purposes. The general public could enter the halls of the legislatures and Parliament only by visitors’ pass issued on the recommendations of the Members of Parliaments or MLAs. But after the availability of the proceedings of the Parliament and Legislatures on television, it has become wide open to the whole world. The general public can now know as to what is being done by their elected representatives and is free to form its opinion about the performance of the Government and the opposition on the basis of the audio-visual recordings which are available on the television, computer or mobile screens.

        There are, however, many practical difficulties which may come in the way of recordings and the airing of the proceedings of hundreds of courts across the country. In case of Parliament, there are only two Houses which can be easily televised directly. But in the case of the televising the court proceedings, it will not be possible through one or two exclusive channels for showing the court proceedings. For example, as on today, there are fifteen courts in the Supreme Court of India. It will be unimaginable to beam the proceedings of all courts. Similarly, there are 28 High Courts in the country having hundreds of courtrooms making it well-nigh impossible to televise their proceedings. So, a different mechanism has to be found out. One of them is to have an archive of the recordings and appoint a group of editors to look into the cases which are worthy to be televised and take a decision accordingly.

         It hardly needs to be emphasised that audio-video records of the court proceedings will remove all doubts and apprehensions of the people with regard to happenings in the court and it will be immensely useful for the students, teachers and advocates of the court.   Although, a group of lawyers is of the view that recording of proceedings should not be made a spectacle because arguments might get more favoured for the cameras than for anything else, nevertheless for overwhelmingly large number of lawyers it would lead to public education helping in the formation of public opinion.

Murder of Arushi Remains an Enigmatic Mystery

There are some criminal cases, which remain deeply etched in the public memory for a long time to come. These cases evoke enormous interest and shake the conscience of the public. People feel fear, horror, brutality, mechanism, conspiracy and execution associated with such criminal cases. In criminal law, two components are necessary to prove the guilt of an accused person. One is mens rea i.e. intention behind the crime and the other is actus reus i.e. execution of the crime.

 This must be proved in the court of law by the evidence which may be circumstantial or based on the last scene theory or supported by the statements of indubitable eyewitnesses. In all such pieces of evidence, the link must be made complete. However, if there is any doubt in completing the missing link then the benefit of it always goes to the accused because the criminal law follows the principle that even if hundred criminal go scot free but an innocent person should not be punished.

 There are many cases criminal cases which have been perpetuated in the public memory by the media coverage. For example, the Nanavati case of Bombay (it was not a Mumbai then), which shook the entire nation. A decorated Naval Officer Nanavati had murdered a businessman Prem Ahuja, who was in the illicit relationship with his wife Sylvia. Many films have been made and books have been written on this sensational murder case. 

Another horrendous case of rape and murder recent times was that of a young para-medical girl, Nirbhya, in the year 2012. That generated a tsunami of anger throughout the country and the Government was forced to enact laws ensuring the safety and security of women and also quick disposal of such cases to meet the ends of justice to some extent. 

In the same category falls the murder mystery of Arushi, a 14-year-old teenager of NOIDA. Her parents, Rajesh Talwar and Nupur Talwar are Dentists. It attracted the attention of the whole country because of the wide and sustained media coverage.  Apart from Rajesh and Nupur Talwar, their servant Hemraj was also living in the flat. On the fateful day of 15 May, the family had dined together.

 After some time Aarushi went to sleep. On the morning of the 16th May 2008, Bharti Mandal, a maidservant rang the doorbell but when no one responded from inside she went up the staircase leading to the terrace of the flat to fetch the bucket and mop kept there. While coming down she found that no one had opened the door, she put her hand on the outer grill door, but it did not open, then she again pressed the doorbell on which Dr. Nupur Talwar opened the innermost wooden door and started talking to her. She asked Bharti Mandal where had Hemraj gone, to which she expressed her ignorance. Dr. Nupur Talwar then told her that Hemraj must have gone to fetch milk from mother dairy after locking the inner iron mesh door from outside and she told her to wait till Hemraj returned. Thereupon Bharti Mandal asked Dr. Nupur Talwar to give her key so that she may enter the house after unlocking the inner iron mesh door on which Dr. Nupur Talwar told her to go to the ground level and she would throw the key to her from the balcony. While Bharati Mandal was going down Dr. Nupur Talwar picked up a cordless phone and dialled Hemraj's mobile no. The call got connected but got disconnected after a couple of seconds. When Bharti Mandal came down Dr. Nupur Talwar told her that the door was not locked but only latched from outside. Thereafter Bharti Mandal climbed up the staircase and when she put her hand on the outermost iron grill door it opened and thereafter she unlatched the middle iron mesh door and stood there. She heard Dr. Rajesh Talwar and Dr. Nupur Talwar weeping on which she suspected that some thief had broken into the house. When Bharti Mandal inquired from her why she was weeping, Dr. Nupur Talwar asked her to come inside and see what had happened. Then Bharti Mandal came with Dr. Nupur Talwar inside the flat and stood outside Aarushi's room Dr. Nupur Talwar pulled the bed sheet with which her daughter was covered on which she saw that her throat was slit. She became frightened. Dr. Nupur Talwar told her to see what Hemraj had done. It appears until that time no one was aware that Hemraj was also lying dead on the terrace.

Within hours of the discovery of Aarushi's body, the flat was swarming with people, the policemen, the press, family friends, curious strangers descended on the Talwar's home.  The Police were informed, which arrived at the scene of the incident and started an investigation. Arushi was found dead in her bed with signs of sharp-edged weapons on her neck. The needle of suspicion revolved around Hemraj, who after committing the murder of their daughter was missing but when his body also found, then the mystery got further deepen. The Allahabad High Court found the chain of circumstances to be grossly incomplete and broken and said that ‘the circumstances of the case do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the appellants; and the other to their innocence and in view of the principles expounded by the Apex Court, we propose to adopt the view which is favourable to the appellants.’  We hold that the prosecution has failed to prove its case against the accused beyond all reasonable doubts.’ Therefore, they stand acquitted.

 The scathing attack of the trial judge by the High Court is certainly quite a new trend in the judgement and beyond any justification. In its diatribe against the trial judge, the High Court has said that ‘the learned trial Judge has prejudged things in his own fashion, drawn the conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning. Thus, basing the finding of conviction without caring to see that it is a case based on circumstantial evidence things cannot be presumed and stuffed in a manner like the present one by adhering to self-created postulates then roam inside the circle with all fanciful whim. The learned trial Judge took evidence and the circumstances of the case for granted and tried to solve it like a mathematical puzzle when one solves a given question and then takes something for granted in order to solve that puzzle and question. But the point is that the learned trial Judge cannot act like a maths teacher who is solving a mathematical question by analogy after taking the certain figure for granted. The learned trial Judge has aberrated and by dint of fallacious analogy and reasoning has surprisingly assumed fictional animation of the incident as to what actually took place inside and outside the Flat, and like a film Director, he has tried to thrust coherence amongst facts inalienably scattered here and there.’ 

Certainly, such recalcitrant mindset in interpreting facts vis-a-vis circumstances of the case and evaluation of evidence ought to have been shunned. Consideration of merit should be based only on evidence and circumstances apparent on the record, crystallizing the truth in substance and alluding to the certainty of the decision, backed up by reasonable analogy and scrutiny by the trial Judge as that alone would always be the best approach while deciding a criminal trial, said the High Court.

However, the million-dollar question remains that who killed Arushi? Will this enigma be ever solved?

Acquittal of rapists on weird grounds will set bad precedents

     

Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created aflutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28^th March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of ‘promiscuous character’.

The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.

Judgement reads like a fiction, which elaborates that the victim has come to the house of the accused on his invitation. Both the victim and the accused consumed liquor in varying measures. The accused was displaying highly emotional behaviour in a drunken state. Somebody else was also to join them in the drinking session but he did not turn up. The victim’s inherent motherly love started overflowing towards the accused. Then the accused expressed his desire to make love with her. The victim initially says ‘No’ but ultimately goes along. In her mind, she remembered the case of Nirbhaya, a hapless girl who was brutally raped and killed and succumbed to the desire of the victim. She even made a mental move of feigning orgasm so as to end the ordeal and participated in the act. After completing the act, the accused asked her to do it again. In the meantime, the privacy was disturbed with the ringing of the doorbell and the arrival of the two associates of the appellant. The questions which arise are whether or not there was consent; whether the accused mistakenly accepted the moves of the victim as consent; whether the feelings of the victim could be effectively communicated to the accused and whether mistaking all this for consent by the accused is genuine or only a ruse for his defence. At what point of time and for which particular move, the accused did not have the consent of the victim is not known.

To answer the aforesaid questions, it would be necessary to see what the word “consent”, especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredient of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. The sermon of the Court on and says that ‘in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean ‘yes’ in case of yes or ‘no’ in case of no. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus, gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today’s modern world with equality being the buzzword, such may not be the situation’.

         There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the victim and the accused and after coming to know about the alleged incident, she had corresponded with the victim wherein she had informed her that the accused had been under a rehabilitation regimen for his ‘bipolar mental condition’. The victim rubbished such an explanation by stating that the occurrence had to do more with the physical power of the accused than the mental condition. Though the mental condition of the appellant may not be a ground to justify any act which is prohibited under law, the same can be taken into consideration while deciding as to whether the accused had the correct cognitive perception to understand the exact import of any communication by the other person. Under such circumstances, the benefit of the doubt is given to the appellant.’ This is bizarre logic and it has shocked the conscience of the legal community.

The Punjab and Haryana High Court, which acquitted three persons, who were convicted for having raped a woman at Sonipat is equally disturbing. It is a well-established principle of the criminal jurisprudence that the benefit of doubt is given to the accused when his/her crime is not proved beyond all reasonable doubts but here in the case the court has not only acquitted the accused persons but damned the victims by quoting her statements from examination like, ‘it is correct that room was got booked by me at my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me’ and then goes on saying that ‘it is actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world’. It further condemned the allegations of the victim to be an act of blackmailing.

The Court went on to say that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents’.

It is strange when there is growing awareness for the gender sensitisation these judgements have dealt a severe blow to victims by letting off the accused on such grounds as are not found at all in substantive or procedural criminal law.

Constitution Countenances Ban On Cow Slaughter

  For the last nearly a fortnight, the Central Government’s new Prevention of Cruelty to the Animals Rules have led to heated debates and agitations in many states particularly by those, who wish to fish in the troubled waters as they have their own axes to grind. Rules do not say anything about beef eating or not eating but effectively prohibit the sales of cows and buffaloes for slaughter at animal markets. While the Kerala High Court out-rightly dismissed the Petition filed against the implementation of Rules, the Madras High Court has given four weeks’ time to the Central government to clarify the doubts raised by the Petitioners. Thus, apart from political turmoil, legal and constitutional fault lines have also been opened.

         Cow slaughter has always been an emotive issue. The matter was discussed and debated at great length in the Constituent Assembly. Many freedom fighters had promised that the first goal of the Swadeshi government would be to impose a ban on cow slaughter. In 1940, a special committee of the Congress had also opined for the protection of cows. In fact, Mahatma Gandhi had once declared that a prohibition on cow slaughter was more important to him than swaraj itself. The proponents of the cow protection law in the Constituent assembly included Seth Govind Das, Pandit Thakurdas, Shibban Lal Saxena, Ram Sahai and Raghu Vira among others. Just a few days before the India got Independence Babu Rajendra Prasad, who later became the President of India, wrote a letter to Pandit Jawahar Lal Nehru saying that “I have been flooded with postcards, letters, packets and telegrams making demand that cow slaughter should be stopped by legislation. The Hindu sentiment in favour of cow protection is old, widespread and deep-seated. The Hindu feeling on account of recent happenings is very much agitated and this movement… is bound to gain strength more rapidly than we can imagine.”

       In fact, it was the religious argument that rooted the ban on cow slaughter in the reverence attached to the cow in the Hindu culture. The economic argument was based on the multifarious utilities of the cow in an agrarian economy – the medicinal value of urine, usefulness of cow dung, hides and bones etc.  Pandit Thakurdas, a prominent leader from Punjab and a vociferous advocate of the ban on cow slaughter opined that ‘the best way of increasing the production (of food crops) is to improve the health of human beings and breed of cattle, whose milk and manure and labour are most essential for growing food. Thus, the whole agricultural and food problem of this country is nothing but the problem of improvement of cow and her breed.’ On religious plank he emphasised that, ‘our ancient sages and rishis, realising her(cow’s) importance, regarded her as very sacred. Here in this land Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as ‘Makhan Chor.’ In all, they brought forth two strands of argument – religious and economic.

       A Muslim member of the Constituent assembly Zahir-ul-Hasan Lari also supported the ban on cow slaughter and said that ‘If the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words… I submit that this is the proper occasion when the majority should express itself clearly and definitely.’ The ban on cow slaughter was thus put under 48 of the Constitution, one of the Directive Principles, which would guide the State in policy making and not as the part of the enforceable and justiciable fundamental rights. Needless to say, that fundamental rights inhere only in human beings not in the animals.

        Article 48 of the Constitution reads: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.’ There is no doubt that Article 48 was adopted as a compromise formula and the many members of the Constituent Assembly like Shibban Lal Saxena vehemently opposed to such back door tactics and told the Drafting Committee of not being ashamed of providing for the ban on the cow slaughter frankly and boldly.

         Way back in 1958 in ‘Mohd. Hanif Qureshi and others vs State of Bihar’ this issue was agitated before the Supreme Court. Bunch of petitions were filed against the Bihar Act, which prohibited the slaughter of cattle. The petitioners were Kasais (butchers) who contended that the Act infringes their religious rights to slaughter the cow(s) on Bakr-e-Eid and also hits at their profession. The Court ruled that after giving careful and anxious consideration to the pros and cons of the problem and in view the presumption in favour of the validity of the legislation, we feel that we must approach and analyse the problem in an objective and realistic manner. So, we have reached the conclusion (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Article 48,  (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid and (iii) that a total ban on the slaughter of she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

         The judges said that the ban on slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and unserviceable is a matter for legislative determination. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban on the slaughter of those which are useless. The result is that we uphold and declare that the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness infringes the rights of the petitioners under Article 19 (1) (g) and is to that extent void.

       Later, the Supreme Court in State of Gujrat vs Mirzapur Moti Quereshi Kasab Jamat(2005) further elucidated the definition of other cattle by  observing that,  ‘having specifically spoken of cows and calves, the framers of the Constitution  chose not to catalogue the list of other cattle  in Article 48 and felt satisfied by employing a general expression other milch and draught cattle, which in their opinion any reader of the Constitution would understand in the context of words ‘cows and calves’.

 There is hardly any doubt that the thousands of cattle were being smuggled to Bangladesh via Nepal from India for their slaughtering under the garb of trade. These rules framed under the Prevention of Cruelty to Animals, which allows sale of cattle from one farmer or breeder to other will deal with severe blow to the beef traders. And, therefore, naturally they will make hullaballoo against the new rules. Legal aspect is absolutely clear in view of the catena judgments of the Supreme and other High Courts but will the government be able to withstand the political onslaught that it is going face in the Monsoon session of Parliament is to be seen.

Conflict between ‘Morality’ and ‘Choice of Woman’ on abortion

It is estimated that in India more than seventy thousand young women die every year undergoing an unsafe abortion. It is mainly because they cannot avail the facilities of the legal termination of their pregnancy for various reasons. It must be fresh in the memory of the most of the people of India that way back in 2012, a young 31-year-old Indian Dentist Savita Halappnawar died at the Galway Hospital in Ireland due to the complication of a septic miscarriage as she was denied an abortion. The untimely death of the young woman because of the insane and mindless laws of the Ireland, guided by the Catholic belief, led to worldwide agitation. Savita was seventeen weeks pregnant. Despite knowing the fact that she was carrying a ‘still’ child in her womb, the Hospital did not allow the abortion. Even the plaintive scream of the young promising Dentist with excruciating pain could not move the Hospital Doctors to save her life in the name of the Catholic Religion.

In India also the abortion was illegal but on the intense demands of the Human Right Activists across the country, the Medical Termination of Pregnancy Act was passed in 1971, which allowed the abortion of the fetus of  up to 20 weeks on three grounds (a) when there is danger to the life or risk to physical or mental health of the women; (b) on humanitarian grounds- such as when pregnancy arises from a sex crime like or intercourse with a lunatic women etc. and (c) eugenic grounds- where there is a substantial risk that the child, if born, would suffer from deformities and diseases.  

The right of the woman to live with dignity as provided under Article 21 of the Constitution gets little importance in the Act because of danger to her life as determined by the doctors that decide the fate of abortion. The factor, therefore, that comes into play is the life of the woman and not her choice. It is a matter of happiness and satisfaction that the Supreme Court of India has started adopting the balanced view on this issue. Every woman who decides not to continue with her pregnancy has her own history and reasons. The answer to it is not easy. For example; what should the doctor do when the daughter of a friend who cannot abort her fetus because she cannot get the support of her family due to their religious beliefs? She is all alone but she does not want the child. Should the Doctor sit in judgement? What would have been the response of the doctor in such a case if the girl had been his/her own daughter?

The second scenario is a corporate executive who going through a challenging divorce. She was distraught at finding that emergency contraception had failed her. She would have experienced a legal setback had her husband and opposing counsel knew that she was pregnant. While it was impossible to prove the husband’s infidelity, her pregnancy could have been used to tarnish her image and weaken her case. In this case, whether the Doctor should adopt the sympathetic approach towards the woman or go by the cold law?

The third situation visualises the story of an uneducated housemaid. She has already two children and a failed sterilisation. Her husband is uncaring and unsupportive and prone to drinking. She is desperate and abortion is her only option because she cannot afford to have a large family. She has continued to exercise her reproductive freedom by being on contraceptives but even then she got undesired pregnancy. What should the Doctor do in such case?

Such predicaments for the doctors and courts exist not only in India but all over the world. ‘Roe v. Wade’ (1973) became one of the most significant cases in the history of U.S. Supreme Court – which literally divided the nation into "pro-choice" and "pro-life" camps and inspiring grassroots activism. This is a landmark decision of the United States Supreme Court establishing that most laws against abortion violate a constitutional right to privacy, thus overturning all state laws outlawing or restricting abortion that were inconsistent with the decision. Jone Roe, the plaintiff wanted to terminate her pregnancy because she contended that it was a result of rape. Relying on the state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests with the individual's constitutional rights. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

There are many arguments which are advanced against abortion like; (a) the issue of the fetus' life, which raises the question of whether one person's desire for autonomy can extend to ending another's existence; (b) the killing of innocent is a crime and the fetus is also an innocent life; (c) many women suffer significant emotional trauma after having an abortion; (d) there is also some evidence that having an abortion may increase a woman's risk of breast cancer in later life. Some other complications include damage and/or infection to the uterus and the fallopian tubes making a woman infertile. Menstrual disturbances can also occur; and (e) an embryo (or, in later stages of development, a fetus) is a human being, entitled to protection, from the moment of conception and therefore has a right to life that must be respected. According to this argument, abortion is a homicide.

The recent judgment of the Supreme Court in Meera Santosh Pal and Ors vs Union of India and Ors’ on has come to the rescue of a distraught woman, who was in the advanced stage of pregnancy. The case history, in brief, is that Meera Santosh Pal, is 22 years old apprehended danger to her life, having discovered that her fetus was diagnosed withAnencephaly, a defect that leaves foetal skull bones un-formed and is both untreatable and certain to cause the infant’s death during or shortly after birth. This condition is also known to endanger the mother’s life.

The Court said that ‘we have been informed that the fetus is without a skull and would, therefore, not be able to survive. It is also submitted that the woman has undergone a psychiatric evaluation. She is reported to be coherent, has average intelligence and with good comprehension. She understands that her fetus is abnormal and the risk of fetal mortality is high. Moreover, the continuation of pregnancy can gravely endanger the physical and mental health of the woman’.

The Court observed: ‘there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.’

The Court said ‘the crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though the pregnancy is into the 24th week, [but] having regard to the danger to the life and the certain inability of the fetus to survive extrauterine life, we consider it appropriate to permit the petitioner to terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it.’

The right to life, the right to liberty, and the right to security of person are major issues of human rights that are sometimes used as justification for the existence or the absence of laws controlling abortion. Arguments on morality and legality tend to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most often those in favour of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion: "Is the fetus a human being with a fundamental right to life" for pro-life advocates, and, for those who are pro-choice, "Does a woman have the right to choose whether or not to have an abortion? “It is expected that in the days to come the law will tilt towards ‘women’s choice’ rather than religious or moral considerations.

 Adultery law treats women as chattel and lowers their dignity 

                Parmanand Pandey

         

        Section 497 of the IPC deals with adultery and it is considered to be a cruelty by the husband on the wife but not the vice versa. Thus, it is not based on gender equality. However, Supreme Court and other High Courts are now crystallising the adultery cases by pronouncing that to have the extra marital cannot termed to cruelty. Let us first see what section 497 says, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such case the wife shall not be punishable as an abettor."

        Conscientious people have been raising this question as to why a woman is still treated like chattel although she has made giant strides in all fields.  Even if a married woman seduces a man to have sexual intercourse with her betraying in the most her own husband she is not even slightly punished or even fined. Why is it that only the man who has to go to jail for a term of up to five years? This law of adultery is more than 150 years old and therefore no right person in his or her senses would like to retain it in the present form. This section 497 of the Indian Penal Code  wrongly assumes a woman to be incapable of having a sound mind and exempts her from punishment even though she herself may lure a man and prompt him to have sexual relations with her with her own free consent. Does it appear to be strange in the twenty first centuary that a woman can be adulterous but she cannot be prosecuted. On the one hand , it gives a blank cheque to a woman to misuse it but on the other hand, her position is no  better than that of the property of the husband. Why is it that a married woman can indulge in sexual relations with as many men as she likes and yet is not held liable in anyway? Why is it that a woman is treated as personal property of the husband under our law? 

Why is it that a woman who after getting educated from highly reputed educational hubs, getting a top corporate or government job like IAS, IPS etc; is still considered incapable as a person and therefore in spite of being married and sleeping with some person other than her husband is not punishable under IPC? How can this be justified by any sane person? How can a woman who betrays the unflinching faith of her husband and sleeps with some other person be allowed to escape unpunished ?

      In Pinakin Mahipatray Rawal Vs State of Gujarat , the Supreme court said, that Marital relationship means the legally protected marital  interest  of one spouse to another which  include marital  obligation  to  another  like companionship,  living  under  the  same  roof,  sexual  relation and   the exclusive enjoyment of them, to have children, their  up-bringing,  services in the home, support, affection, love,  liking  and  so  on.   Extra-marital relationship as such is not defined in the IPC.   The court said that merely being "intimate" with another woman is not sufficient ground for a man to be held guilty of inflicting cruelty on his wife on the charge of failing to discharge his marital obligations. The ruling came in a case where the wife committed suicide suspecting the husband of intimacy with a woman colleague in office. The trial court and the Gujarat high court held him guilty under Section 498A for causing cruelty to his wife and under Section 306 of IPC for abetting suicide.  "Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life," the bench said.   Following the ratio decidendi of  K.V. Prakash Babu Vs State of Karnataka, the Supreme Court said that 'we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments'.  Similarly the Delhi High Court has also termed the adultery charge very painful for the spouse and has therefore granted divorce on this ground in the case Harjit Kaur Vs Surinder Singh. 

       It must be mentioned here that many countries have decriminalised adultery. IPC is the creation of Britishers,who inserted Section 497 as a penal offence. What is more surprising is that England itself has decriminalised adultery and does not treat it as a criminal offence. It is high time that this law is revisited even in India and amended to meet the present circumstances. 

        In France, the wife is punishable with a minimum term of three months to a maximum of two years but discretion rests with the husband to terminate the sentence and accept her again as his wife. The adulterer is also similarly punished. It must be noted here that in Malaysia, Hong Kong and Singapore and many other countries adultery is not punishable at all. In Pakistan and most Islamic countries, adultery can be punishable with death and very harsh punishment is inflicted. In most of the states of USA it is either not punishable or both the parties indulging in adultery are equally punished and there is no gender discrimination. In Philippines, it is the married woman who is alone held accountable. Will our law makers think of enacting the  law that is more in tune with the times for upholding the dignity of women at par with men? This is the crying need of the hour.