Section 148A(2) of C.P.C. -- Caveat -- Whether Requirement of Stating the Names of Party 

who is likely to Initiate Proceedings is Directory or Mandatory -- Order LIV Civil Procedure Code

Regulating Lodging of Caveats in Subordinate Courts in the State

(By N. Subramaniam, Advocate, High Court of Kerala)

1. The scope and object of S.148A C.P.C. seems to be to safeguard the interest of a person against an order that may be passed on an application filed or expected to be filed by a party in a suit or proceeding instituted or about to be instituted. Another object of S.148A is to  avoid multiplicity of proceedings.

2. Section 148A(2) reads as follows:

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1).

3. There are cases in which it is not possible to know in advance, as to who will be initiating the proceedings. For example, A obtains a decree against B. B wants to defeat the decree holder A by some foul means and with this end in view manages to file a suit or proceedings against A, by colluding with his friends, challenging the decree obtained by A against B, alleging fraudulently that such obliging friend is affected by the decree or for some other reason. B may collude with his other close friends, to cause initiation of proceedings or suit against A, one after another. In such a situation, it is not possible for A to file a caveat petition against a named individual. Yet another example is, any citizen can file a suit against a person who constructs a building violating the Municipal Building Rules, even if he has not suffered any personal injury. (See 1984 KLT 428 -  Saina v. Konderi;  (2003 (1) KLT 245 =  2003 (3) K.L.J. 133 - Mariamma v. Thomas). There are other decisions in this aspect. There are also many other categories of cases like the ones pointed out.

4. In such cases, it is not possible to name a particular individual or individuals who may initiate proceedings or who are likely to initiate proceedings. Therefore it will not be possible to comply with S.148A(2) C.P.C. 

5. The question is, in such a situation, can a party file a caveat under S.148A C.P.C. without naming or specifying a specific person as a respondent.

6. Except one decision on this question decided by Karnataka High Court reported in I.L.R. 1999 Karnt. 2986 = AIR 2000 Karnt.70, State of Karnataka v. NIL, no other decision is seen reported either of the Hon’ble Supreme Court, any other High Court including Kerala High Court.

7. Kerala High Court has framed Rules and incorporated as Order LIV  C.P.C. as amended in Kerala. The rules are framed under S. 122 of C.P.C. and it has been published in Kerala Gazette dated 2.1.2001. As per the Rule 2, the name and address of the applicant or petitioner or the expected applicant or petitioner is to be mentioned in the Caveat. Rule 7 says that if the Caveat is not lodged in accordance with these rules, it shall be rejected.

8. With the above said matter in mind we can examine the question whether S.148A (2) is directory or mandatory.

9. Even in cases where the opposite party who is likely to file a suit or initiate a proceeding cannot be identified, it is submitted that, still a Caveat is maintainable and cannot be rejected as not maintainable and such a Caveat is to be registered by Court. The failure to comply with S.148A(2) (non mentioning of the person who is likely to initiate proceedings) cannot be a ground to reject the Caveat.

10. If the person who is likely to initiate proceedings could not be identified or ascertained with certainty, it is clear, that compliance with S.148A (2) is not possible. The right to file a Caveat is a substantive right of a person and that cannot be taken away under the guise of S.148A(2).

11. The provision of S.148A (2), as rightly observed by Karnataka High Court, is only directory and not mandatory. In the case of non compliance, the Court has always the discretion, if valid grounds are made out for non compliance of S.148A(2) and can direct the Registry to register it. Again as rightly observed by Karnataka High Court, the person who lodges the Caveat, should specify accurately the subject matter of dispute in suit or proceeding likely to be instituted. If that is specified, it is open to the Court in its discretion to dispense with the requirement of S.148A(2) and an application under S.151 C.P.C. may be filed praying for dispensation of requirement in S.148A(2). 

12. So far as Kerala Courts are concerned they are governed by Order LIV of Civil  Procedure Code, which is seen mandatory in nature. Therefore, the said Rules in Order IV will have to be amended by the Rule Making Committee or Authority to meet such contingencies, narrated above. The fact that the Rule making committee has power to do so is beyond doubt.

13. A similar situation arose in the case reported in 1990(1) KLT 596 Pathummakutty v. Kathiyumma (D.B.)  decided on 22.2.1990 (C.R.P. 3506 of 1983 and C.R.P. 171/1982). The question that arose in those C.R.P.s was, whether an application under Order 21 Rule 89 is maintainable when the required deposit was made after 30 days but was within 60 days of sale. Art 127 of Limitation Act was amended by Act 104/1976. Before amendment, 30 days time had been provided to file an application under O. 21 R. 89 to set aside a sale in execution of sale. This was amended to 60 days by Act 104/1976 which came into effect from 1.2.1977. However, the deposit was to be made within 30 days from the date of sale was the provision in O.2 R.92(2) C.P.C. as in force in Kerala then. Here the Rule Making Committee of High Court, taking note of the anomaly in the time for filing the application to set aside sale under Order 21 Rule 89 amended the provision in O. 21 R. 92(2) as per C.P.C. Amendment Kerala in Kerala Government Gazette No. 6 dated 9.8.1988 (See C.P.C. Kerala as it stood prior to 1.7.2002). Thus, it is clear that the Rule Making Committee is entitled to make proper amendments and when it is felt necessary.

14. Similarly in the situation mentioned above already, namely, when it is not possible to identify a particular person, as one who is proposing to initiate proceedings, it is humbly submitted that the Rule Making Committee is not powerless to see that proper and suitable amendments are made to the Rules framed by Kerala High Court as per Order LIV C.P.C.

Therefore, it is felt that it is high time that suitable amendment is made in Order LIV C.P.C. so as to enable a party to file a caveat, without making any person as a respondent. 

Life is a Lighted Candle

(By V.K. Babu Prakash, Principal Sub Judge, Thiruvananthapuram)

The article titled “Slow down India” (2012 (1) KLT 35 journal) written by Sri.E. Krishna Das, Advocate, Palakkad was a nice one. The writer focused his benign attention to the deplorable working condition of the Subordinate Judiciary and its staff. Equally also, he emphasized about the beast of burden of the work being done by the judiciary. But to tell him frankly, the working condition of the lower judiciary has considerably improved after the implementation of the Shetty Commission report to certain extent. That apart, Supreme Court and High Courts are keen on to improve the conditions as well. So, things are not as bad as it looks like. Life is always stressful. Even in olden times, it had its own stress and strain. Budha, Jesus and Mohammed tried to solve the problem of stress and strain of human life. Yet mankind is moving on with the usual stress and strain of every day life. Now we are a scientifically developed species, so that, comforts and conveniences are increased which eventually impose much more stress than that were there. When comforts and conveniences increased it aimed at developing the nation with modern infrastructure and developmental projects. When wealth and money increased it really shrank the inner faculty of the human mind. Richness made him more greedy, selfish and indifferent to the sufferings of fellow being and social issues. It itself is the predicament of the modern human being. We are bigger in our ego but small in the essence. In Laos, the African country, there is a zoo. One who visits the zoo will see a board in front of a cage. It reads like this. “The most dangerous animal is in”. One who is curious to see the animal will enter the cage, but finds nothing. Closely looked at he finds a mirror with a small board above it. The board reads as follows: “Look at the mirror and see the dangerous animal by yourself”. It depicts the modern man and his self. Khalil Gibran said beautifully about life as follows “Life is a procession. The swift foot finds it too slow, yet, he too gets along, the slow foot finds it too swift, yet he too gets along. But whatever happens, life moves on unmindfully endless and else where”. Without stress what exactly is the meaning of the life and its social challenges. Incovenience makes the judicial officer sharper in his sensibility. Austerity makes him to work like a horse and live like a hermit. Impartiality impels him to look at social problems in an impassionate manner. Aloofness strengthens his inner mind. Transparency empowers his power of integrity. 

India is a poor country which cannot afford to have the comforts and conveniences of developed western countries. There are much poorer countries than India whose conditions nobody bothers of much. So, let us work hard and make our nation richer, stronger and stable. It will one day give all comforts and conveniences to our next generations. Every human being is a lighted little candle who brightens the little world around him. Although the candle melts down at last, yet, the light it sheds will dispel the darkness around the same. Thanks for the courteous article, Mr. Krishna Das.

Wombs on Hire “A wake up call” Challenges, Need for a Law 

Rights on Surrogacy

(By K. Kusumam, Advocate, Trivandrum)

Every woman, by virtue of “motherhood” would be proud of herself for being blessed with the unique privilege of having an “womb” in her body. Thus, by nature, “Motherhood” is the most precious aspect of womanhood. Women are respected, adored and even worshipped from time immemorial for their distinguished and august position, which the nature has conferred on them because of their motherhood.

The body, mind and soul of every woman is naturally and biologically designed to perform this auspicious job, which is the ultimate aim of nature in sending every woman to earth. In short, conceiving and carrying the baby in the womb, delivering it , nurturing it and then bringing it up into a complete human being is the ultimate purpose of motherhood. This concept of nature also has its own rules. The foremost among them is that all such mothers are the biological mothers of their children.

But in certain cases, due to infertility, illness, improper development of the uterus, hormonal imbalances, or such other problems, some women may not be fortunate enough to give birth to a child of their own. The couple or individuals on such contingency, started enquiring about the feasibility of procreating an offspring, which relates to them biologically and genetically or even other wise. The thrust and quarry of man on this issue thus found out a remedy which moulded into the concept of “surrogacy”. A well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, whom she will not raise, but hand over to the contracting party.

The term “surrogate” is originated from the Latin Word “Subrogare” which means, “appointed to act in the place”. The “surrogate woman” is the woman who is willing to lend her womb for bearing a baby, belonging to either a couple or an individual. She may be the genetic and biological mother of the baby or she may be a gestational carrier only, earning the implanted embryo in her womb and after delivery hand over it to the intended parents.

Types  of  Surrogacy:

1.  Traditional  Surrogacy:

This process of surrogacy help the couple to have their own biological child, even if they are infertile, ill, or unable to carry a child in the womb of the wife, etc.

Traditional surrogacy is the process where the intended father donates his sperm, which is injected in to the uterus of the surrogate mother by “artificial insemination”. This process can be well explained with videographs on the subject.

Because of this method, the intended father can be the biological father of the child, and the surrogate mother will be the biological mother of the child.

2.  Gestational  Surrogacy :

Here the ovum and sperm from the couple are removed and fertilized in the laboratory. Then this embryo will be transferred and implanted into the uterus of the surrogate lady.

Here, the couple would be getting their own baby, genetically and biologically related to the couple alone. The surrogate is then only a carrier of the pregnancy. She will not have any blood relationship with the child to whom she is giving birth.

3.  IVF:  (In  Vitro  Fertilization):

If the intended parents, that is the father or mother or both, are not able to provide their own sperm or ovum or both, then, one or both can be obtained from donor. Then the ovum is fertilized with the sperm, and the zygote will be transferred or implanted into the uterus of the surrogate. In such cases, the parents are not genetically related to the child.

4.  Commercial  Surrogacy:

Here the lady (the gestational carrier) is paid to carry the child till maturity in her womb and after delivery hand over the baby to the prospective parents, as per definite contract. This is the popular method which has been adopted by financially sound, infertile couple.

This type of surrogacy is also called as “Wombs for rent”. The word is potentially an offensive term. This is also called as “Baby Farms”.

5.  Altruistic  Surrogacy :

This is a kind of surrogacy where the surrogate neither receives any financial reward for her pregnancy nor for handing over the child to the intended parents.

Before going into the legal aspects of surrogacy, let us consider the emotional aspects of all who are involved in this procedure. In cases where the surrogate was biologically related to the baby, even if she had entered into a written contract with the intended parents and had received money for carrying the baby, it would be practically very difficult for her to part with the new born, as she would have developed emotional bondage with the baby when the moment the baby started growing in her womb and throughout the gestational period. In all such cases, this natural relationship of mother-baby bondage is inseparable.

Secondly, the woman starts lactating, and if the milk is not sucked by the baby, it would affect the baby as well as the mother so badly, resulting in severe health hazards.

The new born needs the breast milk, care, concern and body warmth of its mother for its survival, at least for a period of first 2 years. It is also to be noted that by becoming a surrogate, the woman will not be changed to a machine as the so called “baby farms”, without any sentiments and passions.

Apart from all these, when the right of the new born baby is concerned, by withholding the lady, from whose womb it was born , it would further affect the baby, physically as well as emotionally, which would ruin its physical, mental, emotional and intellectual development to a considerable extent. All these aspects would not naturally find a place in the ordinary surrogate agreements. In almost all countries, the law is silent on these issues.

It is further to be noted that, the surrogacy contracts are having a large and lengthy history, which is very interesting too. Internationally, many countries, like Australia and France etc., do not recognise the surrogacy contracts despite the growing market for them. In U.K., no contract or surrogacy agreement is legally binding. In most of the States in United States, surrogacy agreements based on payment of money are neither legal nor enforceable. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, but altruistic surrogacy is allowed. In Germany and Italy also it is illegal. But in India, the surrogacy agreements are recognised since 2002. The concept of surrogacy has boomed from January 2004 when a grandmother delivered her daughter’s twins. Following this, India has become a booming centre of fertility market with its reproductive tourism with an estimated cost of Indian Rs. 25,000 crores (US dollars 5000 million). The term which is clinically called as “Assisted Reproductive Technology”, has been evolved in India since 1978, and there is an estimated 200,000 (approximately) clinics all over India offering artificial insemination.

In 1978, October , the world’s second and India’s first IVF (In Vitro Fertilization) baby, “Kanupriya Alias Durga”, was born in Kolkata, about three months after the world’s first IVF boy, ‘Louise Joy Brown’ born in Great Britain, on July 1978.

The Indian judiciary has recognized the reproductive right of human beings as a basic right. For instance, in B.K. Parthasarathi v.Government of Andhra Pradesh (AIR 2000 A.P. 156), the Hon’ble High Court upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” in consonance with the U.S. Supreme Court in Jack .T. Skinner v. State of Oklahoma, 316 US 535, which characterized the right to reproduce as “one of the basic civil rights of man”. Even in Javed v. State of Haryana (2003 (3) KLT SN 59 (C.No. 80) SC = (2003) 8 SCC 369), the Hon’ble Supreme Court of India, though upheld that the two living children norm to debar a person from contesting a “Panjayati Raj” election, it is also clearly stated that “the right to procreation is a human right”.

In 2008 (4) KLT 306 (SC) = AIR 2009 SC 84 (Baby Manji Yamada v. Union of India) the court recognised the surrogacy in India and also observed that commercial surrogacy is developing as an industry, and also the court made references to the potentially offensive terms such as “wombs for rent”, “outsourced pregnancies”, “baby farms” etc.  In this case an Indian surrogate mother underwent IVF technology for fertilisation using the sperm and egg of Japanese parents, and the embryo was implanted in Allahabad. But later on, the Japanese parents got divorced, and the biological mother disowned the infant upon its birth in India. Then the grandmother of the infant filed a petition before the Hon’ble Supreme Court, challenging the orders passed by the Rajasthan High Court with regard to the protection and custody of the minor Baby Mangi Yamada. She sought for the permission of the court to take the child out of the country after obtaining passport from the Government of India. As per the directions of the Hon’ble Supreme Court, the regional passport office in Jaipur issued an identity certificate to the baby with which the grand mother flew to Japan with the baby. The question regarding the citizenship of the baby is really not clear.

In 2008, an Israeli gay couple (Yonatan and Omer Gher) came to India and had their child (a baby boy) conceived by a surrogate in Mumbai, through a fertility clinic in Bandra. The child was taken back to Israel by the couple in November 2008.

In 2010, another gay couple (Dan Goldberg and Arnold Angel) from Israel came to India and had chosen an Indian surrogate mother in Mumbai, and had undergone the IVF procedure, by which twin baby boys were born in Mumbai. But for obtaining the Israeli citizenship for the twin boys, the Jerusalem court directed a DNA test for proving paternity of the baby boys in their best interest, and upon proving the same, the couple were allowed to take the children to Israel, issuing Israeli passports to them.

In another case, a German couple ( Jan Balaz and Suran Anna Hohald), had to fight before the courts for two years for getting exit permits for their surrogate sons, Nikolas and Leonard, that too after the intervention of the Hon’ble Supreme Court of India. These babies were born in the State of Gujarat in January 2008, and was registered as the children born to foreign couple through an Indian surrogate mother. The authorities declined to issue the birth certificates in favour of the German couple, taking a view that the surrogate is an Indian citizen. So the authorities wanted to treat the children as Indian nationals only. The German authorities also refused to issue Visa to the twin babies on the ground that German law did not recognise surrogacy as a means of parenthood. Ultimately, the children were put in an embarrassing situation, rendering them as human beings without a State, Place and Nationality. At last the issue was settled by allowing an inter country adoption process in India, by which the Government of India granted exit permits to the German surrogate twins to enable them to go back to their home country, Germany.

The various issues and problems of children born on surrogacy are so complicated and it affects the new born babies, who are also individual human beings. Thus, as human beings, these babies who are created with the wisdom of man should not be allowed to suffer for the causes which are absolutely no faults of theirs. We should remember and recognize that when we create another human being, it is our bounden duty to protect all their interest and fundamental rights. Above all, the right to live as dignified human beings, is constitutionally protected. If this country or the whole world, itself do not recognize and rectify this very fundamental and most challenging violation of human rights, it would amount to severe and grave crime to those who are born out of this scientific intellectual exercise.

As of now, homosexuality is no longer an offence in India, even though previously under Section 377 of the Indian Penal Code, it was punishable. So there is now, no bar to gay couples for hiring a surrogate mother to deliver their children in India.

Indian  Law  on   Surrogacy

Formerly, there was no law to govern surrogacy. But, in 2005 certain guidelines have been issued by the Indian Council of Medical Research to curb the malpractices of “Assisted Reproductive Technology”. But it has no legal sanctity and they are not binding. Because of the mindless and unethical abuses, surrogacy trafficking became very common, and the surrogate mothers are subjected to endless exploitation. In UK, USA, and Australia, the cost of surrogacy procedure would be more than US  Dollars 50,000/- whereas in India, it would be always in a lower rate, ranging up to US Dollars 10,000/-

The matter of inter country adoption is being subjected to a revolutionary change. Even though we are having, The Guardian and Wards Act, 1890, The Hindu Adoption and Maintenance Act 1956 etc., they are not adequate enough to meet the requirements of the new event of adoption that has been resulted due to surrogacy. Is it not necessary to make a law on the subject of embryo adoption, especially when the sperms and eggs are fertilized by the various methods and embryos are nurtured in surrogacy, which had already been discussed above? The urge for parentage has been successfully implanted in Indian clinics, and when the technologies overtakes the law and procedure, is it not high time for the Indian legislature to recognise the need of the society to legitimize such adoptions as well as the rights of child and parents involved in the procedure? These questions need emergent consideration and are to be resolved immediately.

The above need of the nation , at least, compelled the legislature to legalize the commercial surrogacy through the “Assisted Reproductive Technology (Regulation) Bill and Rules 2010”, a draft bill prepared by 12 members of the Committee, which included experts from the Indian Council for Medical Research also. It is an Act to provide for the regulation and supervision of Assisted Reproductive Technology and matters connected therewith or incidental thereto. The Act is proposed to be presented before the Indian Parliament. It promotes surrogacy and legalises it on condition that the surrogate mother may receive monitory compensation upon relinquishing all her parental rights. Single parents, foreigners, or Indians can have children using a surrogate mother. Commercial surrogacy is recognised and legalised even for single persons, married or unmarried couples, or for homosexuals, upon entering into a legally enforceable surrogacy agreement with the surrogate mother. For this purpose the necessary documents confirming the nationality and residence of the intended parents and surrogate mother etc., are to be submitted before the proper authorities. 

The  salient features  of  the  above  “Act”  are  as  stated below:

Under the ART Regulation Bill 2010, “Assisted Reproductive Technology”, “Surrogacy”, “Gamete”, and “Surrogacy agreement” have been defined as follows:

“Assisted Reproductive Technology, with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling or manipulating the sperm or the oocyte outside the human body, and transferring the gamete or the embryo into the reproductive tract of the surrogate.

“Surrogacy”, means an arrangement in which a woman agrees to a pregnancy, achieved through Assisted Reproductive Technology, in which neither of the gametes belonging to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate;

“Gamete”, means sperm and oocyte (egg);

“Surrogacy Agreement”,  means a contract between the person(s) availing of Assisted Reproductive Technology and the surrogate mother;

Chapter 2 of the Bill describes the constitution of authorities to regulate Assisted Reproductive Technology. A 21-Member National Advisory Board comprising of various experts is sought to be created with functions to promote Assisted Reproductive Technology related issues. State Boards are recommended in States and State Registration authorities are sought to be created for procedural purposes. Proceedings before the National and State Level Boards are deemed to be Civil Court Proceedings for limited purposes and are sought to be treated as Judicial Proceedings. Chapter 3 of the Bill deals with the procedures for registration and making complaints etc in respect of Assisted Reproductive Technology Clinics. Chapter 4 says about the duties and responsibilities of ART clinics. Chapter 5 deals with Sourcing, Storage, handling and record keeping for Gametes, Embryos and Surrogates. Chapter 6 states about the Regulation on Research on Embryos. Chapter 7 discusses, rights and duties of Patients, Donors, Surrogates and Children in extensor. The rights and liabilities are well defined and the determination of the status of the child is laid down in detail irrespective of the status of parties as a couple, whether they are unmarried couple, single parents, gay parents or otherwise. Chapter 8 deals with the “offences and penalties” for contravening the provisions of the Act and Chapter 9 is the Miscellaneous Section dealing with the maintenance of records, power to search and seize, power to make rules and regulations etc.

The Act is stated to be in addition to and not in derogation with any other law for the time being in force.

The Act, further deals with other aspects of surrogacy, as stated below:-

1. It legalises commercial surrogacy, entitling the surrogate mother to receive money as reward for carrying the child in addition to her health care and treatment expenses during her pregnancy.

2. The couple and all the individuals seeking surrogacy through the Assisted Reproductive Technology, shall enter into a legally enforceable agreement with the surrogate mother.

3. Upon receiving the money and entering into the contract, the surrogate mother shall relinquish all her parental rights of the child, and the birth certificates of the child will be issued in the name of the commissioning parents.

4. The surrogate mother shall be, between the age of 21 to 35 years and she should not have more than five children, including her own.

5. All persons, whether single or married, irrespective of sex, can also have children through a surrogate mother, and the children born in such contracts shall be the legitimate children of the person/persons who are entering into the contract with the surrogate lady.

6. The prospective parents as well as the surrogate mother should have tested for all blood tests, including HIV and such other diseases, before undergoing for any embryo transfer.

7. A foreigner or of foreign couple, not a resident of India, when fix surrogacy in India, shall have at liberty to appoint a local Guardian for the child to take care of it during and after pregnancy.

8. No surrogate mother can undergo for embryo transfer, for more than 3 times, of the intended parents.

9. The surrogate mother shall provide all details relating to herself and the intending parents to the clinics, who are duty bound to keep those records strictly confidential.

10. The child born out of the surrogacy shall be the legitimate child of its biological parents/father etc., as the case may be, and that the birth certificate will be issued in favour of the genetic parent only. Even if the parties got divorce or separated, the child shall be considered as the legitimate child of the couple.

11. The person who is availing the services of a surrogate mother shall be legally bound to accept the custody of the child, irrespective of any abnormality of the child.

12. All details regarding the surrogacy shall be kept confidential except to the Central Data Base of the department of Health Research, or by court’s order.

13. If the surrogate is married, the consent of her spouse is also required.

14. When a foreigner or couple seek sperm or a gamete donation in India, the child born as consequence of such surrogacy, even though born in India, shall not be an Indian citizen.

15. Surrogacy can be recommended for patients who are biologically unable to get a baby belonging to them.

16. The Assisted Reproductive Technology Clinics shall not advertise for surrogacy agreements.

17. The Assisted Reproductive Technology Clinics must ensure that the surrogate woman as well as the donors shall satisfy all conditions for entering into the biological process, that is, to undergo the clinical test regarding their health condition and other communicable diseases etc., if any.

Even though the bill has remarkable features as stated above, it has certain anomalies and defects as stated below:-

1. The bill did not provide for the establishment of any redressal forum or other statutory authority meant for determining and resolving the issues which may arise out of surrogacy and related matters. There are already serious issues of determination of parentage, nationality, issuance of passport, adoption and problems of dispute in handing over the child etc. The National and State Advisory Boards are only authorities who will promote Assisted Reproductive Technology, Surrogacy Arrangements, and related procedures. Of course the proceedings of these Boards have been deemed to be judicial proceedings before the civil courts for limited purposes. But unfortunately the bill lacks a designated court, a judicial officer, or a judge to be appointed for administering the purpose of the Act.

2. The questions regarding how the surrogate mother’s right can be completely waived off, how the rights of the ovum donor, and sperm donor can be restricted, etc., are not dealt with in the Bill.

3. Further, how can the genetic constitution of the surrogate baby be established and recorded with authenticity is another question remains to be answered properly.

4. When there is already a dispute regarding the adoption and guardianship, as non-Hindus cannot adopt others in India, is it possible to allow embryo adoption, or the surrogate baby adoption to non-Hindus, who are coming to India for undergoing surrogate procedure, is also a question not so far considered.

5. There is absolutely no uniform system of application or law, to check malpractices.

6. Further, all Foreign Embassies and High Commissions are guided by their own procedure which are entirely different from that of the Indian law and procedure. So there is always the possibility of clash of interest, regarding the parentage, nationality, passport, visa, and such other issues. There is absolutely no remedy suggested in the Bill, to resolve these issues and further, it lacks the forum for implementation of such law and procedure.

From the above discussion, I would like to point out the following suggestions for the effective implementation of the rights of the affected parties in issues related to surrogacy.

a. There must be a statutory forum, or a court, or a specified authority, with necessary jurisdiction to entertain and determine the issues which may arise, in connection with and followed by the surrogacy agreements/contracts, including those of inter country adoption, parentage, passport issuance, citizenship, etc. Such form /authority will be well equipped with necessary infrastructure for the speedy implementation of the statutory remedies to all concerned.

b. Such a designated court or other authority should have the power to entertain all or any question relating to or arising out of the surrogacy arrangement and should have the power to enforce and implement all its orders, including the imposition of penalties as stated in the Bill and also to determine the issues relating to the offences stated in the Bill, and impose penalties under the Bill.

c. The Bill should also deal with the questions relating to embryo adoption, Inter religious adoption, inter-country adoption, civil rights of children born in surrogacy etc., irrespective of their nationality and parental rights, giving emphasis mainly to the paramount welfare of the children.

d. The proposed Bill/Act should also consider the rights and liabilities of all parents involved in the procedure as well as the surrogate child’s future contingencies like, poor parenting, lack of money and proper shelter etc., including all other vital needs of the child, and it should also provide appropriate provisions for resolving such issues.

Through this article, I take the privilege to seek attention of all those concerned, to wake up and take immediate measures, for the urgent calls of the nation on the subject.

2011 (4) KLT 288 And 2011 (4) KLT 841 -- Land Mark Judgments Indeed

(By P. Rajan, Advocate, Thalassery)

The ruling rendered recently by the Hon’ble High Court of Kerala in 2011 (4) KLT 288 and 2011 (4) KLT 841 directing to impose condition to deposit amount equivalent to the value of Public Property damaged/destroyed under the guise of hartals or strikes while granting bail to the accused, in such crimes is a laudable measure considering rampant occurrences of such crimes. Kerala has the dubious distinction of observing/witnessing any number of bandhs, hartals or strikes, name irrelevant as ordeal being same, resultantly ire of the protesters turn against the Government, properties including State owned vehicles and offices, incidents of arson even take place; wanton destructions of properties often is the yard stick to boast about the success of the strike, based on the magnitude of damages.

The law which specifically speaks of such crimes is the Prevention of Damage to Public Property Act 1984, which is not so elaborate or the punishment of minimum one year imprisonment even can be reduced on putting forth special reasons, on conviction and regarding release on bail of the offenders, only mandate is Public Prosecutor’s say in that regard. High Court of Kerala has given certain innovative rulings of late, as in the case of banning smoking from public places. When that ruling was promulgated protesters from near and far assembled before the High Court, shouted slogans, but time has proved that the judgment has gained acclaim and is apropos.

The ruling on ban of public meetings on road sides, causing obstuction to the public, which was affirmed by the Apex Court also is similar in line, considering public interest basing on the fundamental right of freedom of movement. The remarks allegably made against this judgment invited proceeding under the Contempt of Court Act and the final verdict to be given by the Apex Court will form part of judicial history.

Peaceful protest by any group, reason what may is permissible and not punishable but in the guise of such protest life and liberty of polity become perilous and the resultant consequences is public and private property become easy target of destruction. Strict law to check such vandalism is mandatory. Campus politics claimed many lives even and no concord is permanent among student groups, discord on any reason to routine clashes, massive destruction of properties in the name of student strike becomes rampant. Todays young self styled student leaders may become tomorrow’s rulers, as the history of our nation proves. They aspire it. Globe-trotting leaders of political parties under whose patronage young groups work, must be honest enough to guide their followers; in the right direction inorder to desist from criminal activities, causing loss to the exchequer. It is no secret that State Government is owning maximum number of public service vehicles, swanky also for dignitaries of different category. To make a strike successful, these items often become easy target of the miscreants. Patriotism is the primary quality for any citizen, boasting about national integrity. Impression of being in an alien place and violating any rule or law is no service even to any ideology and our claim of total or maximum literacy is only a hollow claim as education sans enlightenment lead to political misadventure. Success should not be measured by the magnitude of destruction of public property even if the cause of agitation is genuine. People even resort to block long distance trains with impunity like the road blockade, as though they have every right to do that unmindful of the agony of the passengers. Strike resultant destruction of properties just at the drop of a hat is condemnable as such, acts criminal in nature under the aegis of political big wigs is unjustifiable. Worth emulating methods of service instead of disservice must be the motto of the leaders if progress of the society is their agenda. The ruling rendered by our High Court to dissuade destruction of public property deserves consideration of the law makers, to incorporate necessary clauses in the provision relating to grant of bail, envisaged in the P.D.P.P. Act and Cr.P.C. 1973 basing on these case laws.

The message is loud and clear - How so ever high you may be, law is above you.