Triple Talaq Must Go

The conduct of the Congress Party- the principal opposition party in the Rajya Sabha, which, by the way, still has the largest number of members, is beyond any body’s comprehension. If it was against the triple talaq bill, then why did it support it in the Lok Sabha? What is the point of stalling the bill in the Rajya Sabha on the most frivolous ground of referring it to the Parliamentary Committee to reconsider it and suggest the changes- when the bill has no ambiguity at all? Does it not show that a historical party has lost its moorings and is moving on the tragic path of hara-kiri?

The most reactionary Lord Curzon had once said ‘commissions there are that shelves and commissions there are that solve’. He was right no doubt. Referring the bill to the Parliamentary Committee certainly is not to solve but to shelve the issue.

Going against the Bill means antediluvian thinking of the Congress Party. It has clearly failed to see that groundswell of opposition to the instant talaq in the Muslim community itself. The opposition parties are not only swimming against the tide of sentiments of the people, but they are committing egregious injustice to the Muslim women. Such occasions rarely come for any party or even an individual to play the momentous role in the history. Unfortunately, the Congress party is missing the bus. The posterity will never forgive and forget the opposition parties, particularly the Congress Party for its blunder of monumental proportions.

 Nevertheless, if the government is really serious, and there appears to be no doubt, then it must call the joint session of Parliament to get this Bill passed. I am sure this step of the government will have the unprecedented support of the public. And any democratic government should be wary of the public opinion and not of the petty politicians.

 Let us keep our fingers crossed.

Man Alone is not the Author of Adultery

Is adultery law in India not offensive to the dignity of the women? Does it not treat women as the chattel of her husband? Is it not discriminatory against men and therefore repugnant to the equality of men and women? These are the questions which have been agitating the men and women both from the time of the adoption of the Constitution of India. Adultery is a voluntary sexual activity by a married woman with another married or unmarried man. Although it is a voluntary sexual activity between man and woman but the provision for the punishment is only for the men and not the woman. This is the reason that there has been a consistent demand for scrapping of Section 497 IPC to make it sync with the times. It says  that ‘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.

A sexual link between a married or unmarried man and an unmarried woman or a divorcee or a widow, therefore, does not come within the ambit of adultery. It also holds the man and not the (adulteress) wife of another man, who has been unfaithful to her husband, solely responsible for the sexual liaison. IPC thus views adultery as an invasion of the right of the husband over his wife.Recently this question again came up before the Supreme Court in ‘Joseph Shine vs Union of India and as a result of it the Court issued the notice to the government to know its opinion so that, a finality could be given to it.

In its previous judgment in ‘Sowmitri Vishnu vs Union of India’, the Supreme Court had ruled that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offense of adultery is considered as an offense against the sanctity of the matrimonial home and it is committed by a man, not a woman. Therefore, those men who defile that sanctity are brought within the net of the law. Who can prosecute who for which offense depends firstly, on the definition of the offense and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute? Section 198 (2) of the Criminal Procedure Code provides the right to prosecute only to the adulterer by the aggrieved husband of the adulteress.

The argument is that the husband should have the right to prosecute the infidel wife in the same way as the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right to prosecute his wife, in as much as by the very definition of the offense, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill is promoted by permitting them to 'makeup' or 'break up' the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offense in a spirit of 'forgive and forget' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing the divorce. They are not enabled to send each other to jail. Perhaps the idea behind it is that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence.

 The Courts have kept their hands off by saying that they are not the arbiter of the wisdom of the law. They are merely the arbiter of the constitutionality of the law. Section 497 and section 198(2) of the CrPC go hand in hand and constitute a legislative packet to deal with the offense committed by an outsider to the matrimonial unit, who invades the peace and privacy of the unit. The 'outsider' breaks into the matrimonial home and occasions the violation of the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, subject to the rider that the erring 'man' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to nor the wife can prosecute the husband and send him to jail. There is thus reverse discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage the punishment of any of the spouses at the instance of each other. A husband is not permitted to prosecute the wife because she is not treated an offender in the eye of law. Thus, the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.

Section 497 IPC read with Section 198 CrPC, thus signifies the unequal status of "husband" and "wife" in the institution of marriage in India. It declares that: (i) man is a seducer and the married woman is merely his hapless and passive victim, (ii) he trespasses upon another man's marital property i.e. his wife by establishing a sexual liaison with the married woman with her consent but without the consent or connivance of her husband, (iii) husband of the adulteress wife is an aggrieved party and he (in some cases a person who had to care the married woman when the adultery was committed), therefore, he is authorised to make a formal complaint, (iv) wife of the man, who had consensual sexual intercourse with another woman, married or unmarried, is not deemed to be an aggrieved party and thereby is precluded from making a formal complaint against either her husband or the adulteress woman, and (v) a married man, with impunity, may seduce and establish sexual liaison with an unmarried woman, a widow, or a divorcee even though such a sexual link is equally potential to wreck the marriage between him and his wife.

Immediately after the commencement of the Constitution, Section 497 IPC was assailed inYusuf Abdul case on the ground that it militates against the spirit of equality as embodied in the Constitution. The Apex Court responded: ‘We are not able to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence It was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: (i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery, (ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and (iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free licence under the law to have extramarital relationship with unmarried women.

Assuming that the right to be heard is concomitant with the principles of natural justice and believing that a trial court allows the married woman to depose her say before it records adverse findings against her, the Apex Court held that the absence of a provision mandating hearing the adulteress wife in Section 497 does not make the section unconstitutional. Such judicial reasoning, in the ultimate analysis, unfortunately, endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife's sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous husband or the "outsider woman" who has poisoned her matrimonial home.

Retweeting not to Extenuate Defamation

Technology has, without doubt, brought immeasurable relief to humanity but at the same time it has also brought along the store of difficulties and embarrassment if that is not used judiciously. Thanks to technology one can get information from one end of the globe to the other in a few seconds, but it can also cause incalculable damage if used maliciously. Vicious propaganda can be made viral by re-tweeting and sharing of the message emanating from an unscrupulous person.

In a recent case of defamation filed by the Union Finance Minister Arun Jaitley against the present Chief Minister of Delhi and others, the Delhi High Court and the Supreme Court of India have refused to differentiate between the Tweet and Retweet. However, the both Constitutional Courts have not spoken a word about the merit of the case, which has been left entirely to the Trial Court to decide. The factual matrix of the case is that Mr Kejriwal had accused that the Union Finance Minister Arun Jaitley of indulging into corruption as the President of the Delhi and District Cricket Association (DDCA), a post that he held from 2010 to 2013. Mr Arun Jaitley in his complaint case alleged that the accused persons defamed him by saying that the ‘CBI raided the office of the Chief Minister at the instance of Mr Jaitley to locate files related to corruption in DDCA. The name of the Finance Minister Arun Jaitley figured in those files as he was in dock and I was about to order a commission of enquiry.’

‘Why Jaitley Ji so scared of DDCA probe? What is his role in the DDCA Scam’, says another Tweet of Kejriwal.  He made many tweets like, ‘Arun Jaitley had shielded the Delhi and District Cricket Association (DDCA) for over 15 years. There’s corruption worth several hundred crores that has taken place under the very nose of the Finance Minister’. The allegations against Mr Jaitley are very serious. He should either resign or be removed to enable independent enquiry.’ ‘if Jaitley was let off without investigation, on the same basis 2G accused should also be let off. Can Jaitley’s denial in press be taken as gospel truth? These are very serious allegations against him. Why is he running away from investigation?’ Jaitley is the Suresh Kalmadi of BJP’ or ‘Bhakton ka naya naara apna Arun Kamaoo nikla, Kalmadi ka tau nikla”. etc.

 These were retweeted by Raghav Bahl, an Aam Aadmi Party leader. The Trial Court issued summons to him under section 499 of the Indian Penal Code for defamation. Mr Bahl approached the Delhi High Court for quashing the summoning by the Trial Court, which was dismissed. He then approached the Supreme Court of India on the ground that he merely retweeted, which cannot be the defamation. The Supreme Court also dismissed the petition by saying that a person, who retweets cannot a be oblivious to the content of the tweets. 

Mr Arun Jaitley in his complaint said that accused persons individually and collectively undertook a false, malicious and defamatory campaign against him and his family members from an unrelated act of a search conducted during an investigation by Central Bureau of Investigation in the Secretariat of the Govt. of NCT of Delhi. The plea that was taken by Mr Raghav Bahl was that all the communications allegedly made by him were in electronic form, solely covered by the Information and Technology Act, 2000 and not by Section 499 of the Indian Penal Code. Moreover, ‘retweet’ did not amount to publication for the purpose of Section 499 IPC and therefore he had been wrongly summoned under Section 34 of the IPC.

 On the other hand, the counsel for Mr. Jaitley argued that ‘retweeting falls within the ambit of Section 499 IPC by virtue of it being a fresh representation and publication of the original defamatory comment by repeating and endorsing it publicly; that striking down of Section 66A of the IT Act does not affect the right of an aggrieved person who has been defamed and can avail the remedy provided under the provisions of Section 499/500 IPC; that the summoning order against the present petitioner is not restricted to ‘retweets’ only as they amounted to the defamatory imputations.

 The High Court ruled that it is well-nigh settled that the inherent powers being extraordinary in character demand great caution which ought to be exercised sparingly to achieve the underlying object of Section 482Cr.P.C. The High Court, therefore, performs a tripartite function whilst invoking inherent powers under Section 482 Cr.P.C., which includes: firstly, giving effect to the orders passed under the Code; secondly, preventing the abuse of the process of the Court and thirdly, securing the ends of justice. The Court cannot embark upon weighing the evidence and arriving at any conclusion to hold, whether or not the allegations made in the complaint shall constitute an offence under Section 499 IPC punishable under Section 500 of IPC. It is a settled legal principle that the complaint has to be read as a whole in order to determine whether the allegations contrived therein are prima facie sufficient to constitute an offence under Section 499 IPC, triable by a Magistrate.

The counsel for Mr Jaitley argued that the fact that Section 66A of the IT Act has been struck down does not affect the right of an aggrieved person who has been defamed and therefore, will continue to have access to the provision of Sections 499/500 IPC. The next argument of Mr Bahl is that the petitioner has only retweeted the contents of the tweet of the other co-accused and mere sharing of a tweet does not amount to Publication. which is an essential ingredient of criminal defamation; that the petitioner cannot be charged under Section 34 of the IPC as he retweeted much after the original tweet of Mr Kejriwal and that too not in furtherance of the original tweet; that unlike linking or adding unrelated content or making changes it does not add any substantive material related to the alleged defamatory material. The counsel reiterated that the retweet is mere sharing of the original tweet which does not amount to publication.

 On the other hand, the counsel for Mr Jaitley said that ‘The Indian Penal Code makes no exception in favour of the second or third publication as compared with the first, and such an exception would obviously be made a means of defeating the principal provision of the law of defamation. In England it is not allowed to a defendant to prove that a statement, similar to the one for which he is indicted, has been previously published by persons who have not been prosecuted; and the repetition of a common rumour, however prevalent is not received as an excuse for its further promulgation.’

 The High Court observed that Twitter is an online global message broadcasting platform wherein people create, discover and distribute content. This content is in the form of an alphanumeric message comprising of maximum 140 characters in length and is known as ‘Tweet’. Anyone with a valid e-mail id can sign-up on this platform and indulge himself/herself into engaging in conversation with others on the platform via the medium of ‘Tweets’. These ‘Tweets’ are visible to anyone who visits the profile of the creator of that ‘Tweet’. Further, a user who wants to see the ‘Tweets’ of a particular person in his ‘Twitter Timeline’, which is a personalised ongoing stream of ‘Tweets’, can follow that particular person. In this way, the ‘Tweets’ of that particular person can be seen without making an effort of opening the profile of the particular person to see his/her ‘Tweets’. Further, the platform offers a feature known as ‘Retweet’, which the platform claims, the user can use for re-posting of a ‘Tweet’ to share that ‘Tweet’ with their followers quickly. A retweet, in essence, brings the contents of the original tweet into the immediate attention of the followers of the user who retweets.

 Therefore, the High Court ruled that retweeting amounts to be sharing. The summoning order of the Trial Court was upheld as there was no infirmity in its order. Whether retweeting would attract the liability under Section 499 IPC is a question which requires being determined in the totality of the circumstances and the same will have to be determined during trial. This emphatic assertion of the Delhi High Court and the Supreme Court has made it abundantly clear that those who make elaborate use of the modern technology must be circumspect to from landing into unnecessary litigation.

‘Zen and the Art of Motorcycle Maintenance’

My friend Sudhir Kumar made me available the reprint of a nearly five-decade-old book ‘Zen and the Art of Motorcycle Maintenance’, written by an American author Robert M. Pirsig. The title of the book may be weird, but otherwise, it is an absorbing book. It fascinated me for more than one reason. Firstly, the author of this book was an alumnus of the ‘Banaras Hindu University’ (BHU) in the early thirties where I also studied four decades later in seventies. Secondly, it has very deftly handled the intricacies of Buddhism, Hinduism and Greek philosophy. Very few people know the origin of word ‘Zen’ which is derived from Sanskrit word ‘Dhyan’(Meditation), which became ‘Chan’ in China and ‘Zen’ in Japan. One of the bestselling books of the seventies and eighties it has been printed more than forty times.

It essentially contains three books which go side by side. The first part contains the account of a motorcycle trip from Minnesota, mid-western State of the USA bordering Canada in the east to California on the Pacific Coast. The second part deals with the philosophical meditation on the concept of the ‘Quality’ and the third part gives the glimpse of a story of a man who is pursued by the ghost of his former self. Within it, we encounter the allegory of the psychological tension, a lesson in Eastern and Western School of thoughts, a conundrum about the meaning of self, a commentary on the prevailing social and physical land escape of America. Last but not the least some helpful tips on the care and maintenance of the motorcycle.

There are many esoteric questions which have been thrown up in this book like; how do we know what is true and what is not true? What makes us who we are? Can, and should, we work to change our self to fit an idea of what we want to be? Like any other great work, this book frustrates as much as it enchants. It encourages us to question our most basic belief. But there are no easy answers.

The author says that number zero (0), originally a Hindu number was introduced to the West by the Arabs during the Middle Ages which was unknown to the Ancient and Greek Romans. The number zero also shows the absurdity of trying to derive zero from any form of mass-energy as that is nothing but reductio ad absurdum.The author has tried to bring the unification of spiritual feeling and technological thoughts. The division between these two is the root cause of discontent of our age, he says. He offers some heterodox solutions, which may not be appealing to the present generation. Technology has overtaken the meditative thoughts. Nonetheless; the book is gripping and worth reading.

Strong Message to Forum-shoppers and Aberrant Judges

An eminent jurist Benjamin Cardozo has said that ‘the judge is not a knight-errant, roaming at will in pursuit of his own ideal of beauty and goodness.’ Another jurist Felix Frankfurter has said that ‘for the highest exercise of judicial duty is to subordinate once personal pulls and private views to the law of which all are guardians-those impersonal convictions make a society a civilized community and not the victims of personal rule.’

These two quotations are apt in the present circumstances when the judicial discipline was thrown overboard by the Lucknow bench of the Allahabad High Court resulting into the huge erosion in the image of the judiciary. Thanks to the timely and bold intervention of the Supreme Court, the rot that was spreading very fast in the name forum shopping and extracting favourable justice was stemmed otherwise, brokers and blackmailers would have brought further disrepute to the Institution. The controversy arose in the Supreme Court of India when a group of lawyers created an unsavoury effort for impeaching the authority of two judges namely; the Chief Justice of India and Justice A.N khanwilkar. The root of the controversy lies in the medical admission scam or simply MCI scam. In September this year, the CBI arrested a retired judge of the Orissa High Court and five others for allowing a private medical college enrol students despite a ban by the Supreme Court on the same.

According to the CBI investigation, Justice IM Quddusi, a judge with the Orissa High Court between 2004 and 2010, and his alleged accomplice Bhawana Pandey helped the Prasad Education Trust that runs Lucknow-based Prasad Institute of Medical Sciences to enrol students in different courses. The Prasad Institute of Medical Sciences of Lucknow was among 46 colleges barred by the government from admitting students. These colleges were found to have sub-standard facilities and non-fulfilment of the required criteria.Justice Quddusi and Bhawana Pandey allegedly assured the Prasad Education Trust that they would ensure that their matter was settled in the Supreme Court. The CBI said that Quddusi and Pandey roped in a middleman identified as Biswanath Agrawala of Bhubaneswar.

Besides, Justice Quddusi, Bhawana Pandey and Biswanath Agrawala, the CBI also arrested BP Yadav, Palash Yadav (both from Prasad Education Trust) and an alleged hawala operator Ramdev Saraswat.

Agrawala claimed to have contacts with influential people. The CBI seized Rs 1 crore during searches from Agrawala soon after he got the money from Saraswat in Delhi's Chandni Chowk area. The CBI later recovered another Rs 90 lakh from the places owned by him.

The Supreme Court came into the picture after the Prasad Institute challenged the government's decision to debar it from admitting students for medical courses. Some other medical colleges too had filed petitions in the Supreme Court.In August this year, a Supreme Court bench headed by CJI Dipak Misra directed the Centre to review its order to debar medical colleges it found having sub-standard facilities. On August 10, the government heard the arguments of the Prasad Institute. But, it refused to lift the restriction till 2018-19. It also asked the Medical Council of India (MCI) to encash its bank guarantee of Rs 2 crore. The FIR registered by the CBI states that BP Yadav of the Prasad Education Trust contacted Justice Quddusi and Pandey through another person identified as Sudhir Giri of Venkateshswara Medical College of Meerut. The CBI FIR says they ‘entered into a criminal conspiracy for getting the matter settled.’

The Prasad Institute challenged the government order in the SC afresh. However, a few days later, on the advice of Justice Quddusi, the petitioner withdrew the plea from the Supreme Court and moved the Allahabad High Court. The Allahabad High Court provided temporary relief to the petitioner staying the debarment order. It also stayed encashment of bank guarantee by the MCI. The medical college regulator, in turn, challenged the Allahabad High Court order in the Supreme Court. Now, the Prasad Institute also filed a writ petition in the Supreme Court. The CBI says that it is at this point of the legal battle, Quddusi and Pandey roped in Agrawala, who was engaged to influence the judges of the Supreme Court. Most of the accused of the case are out on the bail. 

Meanwhile, the Campaign for Judicial Accountability and Reforms filed a petition in the Supreme Court seeking setting up of an independent probe by a SIT headed by a retired chief justice of India. The petitioner, Kamini Jaiswal, contended that such a probe is urgently needed as it involved charges of corruption in the highest judicial bodies - the High Court and the Supreme Court. The petition was first put up on 8^th of November before the bench of Justice J Chelameswar, who posted the matter for hearing on 11^th November but the petitioner's counsel- Dushyant Dave and Prashant Bhushan- again mentioned the matter on 9^th November once again before the bench of Justice Chelameswar, who agreed to hear the matter.Admitting the petition, Justice Chelameswar passed an order to set up a constitution bench of five senior-most judges of the Supreme Court for hearing the petition seeking a probe by a SIT. The bench also issued notices to the Centre and Medical Council of India.

The petitioner contended that CJI Dipak Misra should not be on the constitution bench as he was on the bench that dispensed with the case relating to Prasad Education Trust in the past. Justice Chelameswar, however, left the matter to be decided by the constitution bench itself.

While Justice Chelameswar was about to pass the order, another draft order was delivered to him. The draft order was apparently issued by CJI Dipak Misra, who listed the same matter in another court.

Justice Chelameswar interpreted the draft order differently. Citing Article 145(3), he observed that the matter relating to the SIT probe can be heard by a constitution bench without the CJI passing a specific order. As per existing practice and law, setting up a constitution bench is the administrative function of the CJI.

The matter took another turn when the CJI set up a seven-judge bench to hear the order passed by Justice Chelameswar bench in the matter of SIT probe. Two of the judges, however, recused themselves from the bench. The five-judge bench annulled the order passed by Justice Chelameswar.

Later the matter was heard by the bench of the Chief Justice and it scathingly attacked the conduct of the judges of the Allahabad High Court by saying that, obviously, the Division Bench of Allahabad High Court had abandoned the concept of judicial propriety by quashing the ban order of the Central Government and the Medical Council of India. More so, when at the time of the withdrawal of the Petition, the Supreme Court had very clearly directed that ‘the High Court, while entertaining the Writ Petition shall not pass any interim order pertaining to the academic year 2017-2018’

The Supreme Court said that, ‘it is as the cloudless sky that the judgement of the High Court shows unnecessary and uncalled-for hurry, unjustified haste and unreasonable sense of promptitude being oblivious of the fact that the stand of the Medical Council of India and the Central Government could not be given indecent burial when they were the parties on record. Such a procedure cannot be countenanced in law.’ The Supreme Court debarred the Institution from continuing the Course and said that although students cannot be fully compensated, yet it ordered the Institution to refund their fees besides paying Rs ten lakh to each. The Court also imposed the cost of Rs 25 lakh on the Institute.

The drama that was played by the Commission for Judicial Accountability and Reforms(CJAR) is saddening and cover it with bad light. Firstly, it made the egregious mistake of filing two identical petitions in the Supreme Court.  One in the name of its member Kamini Jaiswal and other in the name of the CJAR itself. Secondly. It pressed the immediate hearing of the case, which should not have Chief Justice Dipak Misra on the bench. It amounted to eroding the authority of the Chief Justice, who is the master of the roster and has got the sole right to constitute the Bench of the Supreme Court. Another bench consisting of Justice R. K. Agrawal, Arun Mishra and A. M. Khanwilkar heard the petition of Kaman Jaiswal and dismissed with scathing comments on the conduct of the concerned advocates. The second petition was also dismissed but this time a hefty cost of Rs 25 lakh was imposed on the CJAR for its misadventure of forum hunting and tarnishing the majesty of the judiciary.

There is no doubt, that those who are in the Judiciary particularly in the higher judiciary, which includes Bar and Bench both must conduct themselves in the manner, which could serve as the role model for others and instil the unshakable faith in the institution of justice.

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.