Sri Lanka Abounds With Breathtaking Beautiful Places

We know so little about our neighbouring countries was realised by me during my six days visit to Sri Lanka in the second week of December 2018. I was the part of the 23-member delegation of the Indian Federation of Working Journalists, which traveled to many places in Sri Lanka. While Indians have known it as Sri Lanka from time immemorial, it was called Ceylon when it was a British Colony and its original name was restored in 1972, after 24 years of her gaining independence in 1948. Sri Lanka is credited to have the first woman Prime Minister Sirimavo Bandaranaike in the entire world, way back in 1960. Most of us started our journey by Air India on 10^th of December in the afternoon from Terminal 3 of the Indira Gandhi international airport of New Delhi reached within three and half hours at Colombo’s Bandaranaike international airport. Colombo is one of the modern cities of the world with the all-natural gorgeousness of ocean, lagoons, gardens, and greeneries. Manmade high-rise buildings, modern airport, potholes free roads, all round cleanliness and abounding of comfortable hotels etc, make this city all the more attractive. Hospitality in Sri Lanka is, to say the least, par excellence.

For any Indian visitor to Sri Lanka, what conjure up are the places associated with Ramayana. So, on reaching Colombo when we were told that this time the delegation would not be taken to the places of Ramayan trail, some of the journalists were disappointed a bit, but later after seeing other places, they felt happy that there visit proved to be more educative than what they had actually thought of. We were received at the airport by the office bearers of ‘Sri Lanka Press Association’ (SLPA). Its energetic and young Foreign Secretary Kurulu K. Kariyakarawana and his Indian wife, Gitika Talukdar, who herself is an accomplished journalist accompanied us from the beginning of our journey to the last day.  This duo took all pains to ensure our comfortable stay and elaborate arrangements for our reception at various places. All Indian journalists felt very happy when they were told that this time they would have the opportunity to see the post-conflict areas of North-East Sri Lanka, particularly from Batticaloa and Trincomalee.  Sri Lanka Press Association was given generous assistance by the Ministry of Tourism of Sri Lanka to take care of visiting Indian journalists

The climate of Sri Lanka remains hot and humid throughout the year mainly because it is situated near the equator and surrounded by the ocean from all side. The total area of Sri Lanka is nearly 67,000 square kilometres and the population is slightly more than two crores. It is a multi-religious and cultural society More than 75 percent population consists of Buddhists and Hindus are the second largest religion. Quite a large number of Muslims and Christian also inhabit the island. During the last two decades, the Muslim population has become assertive because economically they have become more prosperous mainly due to huge remittances from the Gulf countries. In all these years grand mosques have sprung up particularly in the North-Eastern part of Sri Lanka. Three language formula- Singhalese, English and Tamil- is observed Sri mainly in all Government programmes. Tamil has been given more importance possibly to assuage the feelings of the Tamilian population, who were on the warpath for very long period hampering the development of Sri Lanka. Singhalese, by all means, is the dominant language of the country but in the North-eastern part of Sri Lanka, Tamil is widely spoken and understood, where Tamil population is mainly concentrated. Tamilians are settled in considerable numbers in other parts of the country as well. Sinhala is a very sweet language and like any other Indian language, it is replete with Sanskrit words.

It was a delightful experience for all of us to see the love of Sri Lankans for National Song. While there is a controversy raging in India whether at the time of the singing of the National Song one should stand up in its honour or not, in Sri Lanka people pay their obeisance to their national song by standing in attention. Let me narrate an incident. While some of us, including a few Sri Lankans, were chatting, gossiping, watching television and reading newspapers in the lobby of the Sri Lanka Foundation, where we were put up for the first two days as we were waiting for others to board the bus, which was to take us to some other places but in the meantime the National Song of Sri Lanka begun playing. And to wonder to our wonders, everybody including sweepers, who were mopping the floors, receptionist and others stood up in attention and till the end of the playing of the song. Those who were entering the premises of the Sri Lanka Foundation, even they also stood like a statue and waited till the song was finished. In deference to the National Song of Sri Lanka, we also joined them and stood up at the places, where we were. When we inquired about it we were told that it has now become a habit of every Sri Lankan to stand up in the place as where he or she is at the time of the playing of the national song. This good habit is inculcated among Sri Lankans right from their school days or childhood. The pleasant surprise is that Sri Lanka, which is a multi-religious country, does not face any resistance from any quarters on this issue. Muslims and Christians, who oppose the standing at the time of playing the national song, do not make even a murmur of opposition in Sri Lanka. I wish the same spirit of respect for the National Song was found in India. It looks as if the politicians and bigots have largely been responsible for creating a rift in different religions in India. A feeling has been created in our country that standing up at the time of playing of the National Song is against one religion or community.

Another significant contrast which could be noticed between India and Sri Lanka is that in public functions everybody sits as an audience. Only those persons go up to the podium or stage whose names are called out by the moderator. He or she is supposed to immediately come down from the stage and then sit among the audience as before. In India, on the contrary, we find that there is always a pell-mell for grabbing a seat on the stage. Those who do not get the seat on the stage they feel frustrated and show their unconcealed indignation. It may sound strange but it is a fact that even the President of the country and the Ministers, Army Generals and top bureaucrats they all sit in the audience and move to the stage when their names are called out.

To my utter surprise, I found that number of people speaking/understanding Hindi has gone up many times during the last two-three decades. Indian High Commission in Sri Lanka is also doing its own bit for the promotion of Hindi in Sri Lanka. However, to our surprise, we found that many Sri Lankans have picked up Hindi from Gulf countries, where they have been going as the migrant workers. When we enquired it from many young persons, who were eager to converse in Hindi with us, they told us that more than 90 percent migrant workers in Qatar a country in other Gulf countries, speak in Hindi or Urdu and therefore, everybody has to learn Hindi/Urdu, out of compulsion, so as to communicate with other fellow workers.

Last time when I visited Sri Lanka in 1995 as a member of Press Council of India and I had found that there an atmosphere of fear of the indiscriminate bombings and terrorist attacks was lurking all-around even in the shops, offices and other public places in Colombo but now there is no such fear.

The natural beauty of Sri Lanka is seen to be believed. It is simply breath-taking. The vast expanse of the land from south-west Sri Lanka to northeast in Batticaloa, Trincomalee is largely virgin and unexplored. This is mainly due to nearly three decades long drawn civil war. The unfortunate war waged by the ‘Liberation of Tamil Tigers Eelam’ (LTTE) must have caused heavy causality of men and materials in Sri Lanka. Thousands must have been killed by the police, army, administration and the general public. According to an estimate, hundreds of Indian Jawans of the ‘Indian Peace Keeping Force’ (IPKF), sent by the government of India for restoring peace, were killed in Jaffna and Trincomalee.  Those gallant Jawans were killed unsung and unwept. We spoke to an officer at Gunners’ Club in the Central Province of Dambulla on way to Batticaloa, who told us that no Army man wants to die without fighting a battle, that too, when he is working for the restoration of peace. It is true indeed because if an army man dies in the battlefield then his family members and the society and the country remembers him as a martyr but if he dies without fighting then it is the saddest thing for him. He was very happy to have arranged a sumptuous and delicious lunch for us.

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.