A Digest of Cases 2011

(By R. Muralidharan, Deputy Registrar (Planning & Legal), 

Co-operative Department, Puducherry, 605 009)   

When compared to yester years, 2011 is rather a lean year for co-operative law in Kerala. Very few cases were reported in Kerala Law Times. But one cannot lose sight of implications of such decisions. These decisions are grouped chapter-wise, to facilitate easy reading and appreciate its importance.

The question before the Division Bench in Wayanad District Wholesale Consumers Co-operative Stores Ltd., v. Thomas (2011 (1) KLT SN 68 (C. No.91) is whether a milk society would fall within the classification of consumer society. The milk societies squarely fall under producer societies wherein Kerala Co-operative Milk Marketing Federation is specifically covered. If the bye laws of the appellant society are read with reference to classification of societies, the respondent societies are not consumer societies nor do they have a consumer wing. Respondent societies are essentially engaged in marketing of the products of their members, who are dairy farmers or farmers of agricultural produce which are marketing by them in bulk. These activities cannot be understood as dealing in consumer articles, which is a necessary condition for eligibility for membership in appellant society. In order to qualify for membership both in the appellant society and for representation in the board of the appellant society, the society concerned must be dealing in consumer articles, whether as a main business or as a subsidiary business by retaining a consumer wing, which is nothing but a sales outlet for the consumers to purchase articles. 

Disputes

Petitioner co-operative society offered loan to the first respondent. It defaulted in repayment and hence suit was filed. The respondent agreed to settle the claim by referring the matter for arbitration. Hence Arbitration Reference (A.R.) was filed before High Court and respondent agreed to repay the loan in instalments and A.R. was disposed. However no payments were made by the respondent and suit was proceeded with.  In the suit, petitioner moved an I.A. to refer the matter for arbitration. Dismissing the Writ Petition, the Court in Oiko Credit Ecumenical Development Co-operative Society v. Nirmalgram Vanitha Central Society (2011 (2) KLT 942) held that the Court cannot compel the parties to go in for arbitration or such other modes of settlement of disputes on an unwilling party. The opening sentence of S.89 CPC abundantly makes clear that there should exist elements of a settlement which may be acceptable to parties and it is feels so, then it may be referred as envisaged by the provision.

Election

(i) The returning officer cannot refuse to receive the nomination paper on the ground that it was submitted beyond the stipulated time. It can be rejected only during scrutiny of nomination papers. The words employed under R.35(3)(c)(iii) are ‘not delivered or received’ and did not authorize the returning officer to refuse to receive a nomination paper. That apart, the returning officer is empowered only to ‘reject’ and not to ‘refuse’ to receive the nomination papers. The question of rejection of nomination papers would arise only after its acceptance. After acceptance of nomination paper, it would be well within the power of the returning officer, on the appointed date to accept or reject nomination papers taking note of his certification with respect to the date and hour at which nomination paper was received, vide Nalinam v. Joint Registrar (2011 (2) KLT 991). It was also held that if rejection of nomination is patently bad, wrong, arbitrary and perverse, the High Court can interfere under Art. 226, without relegating the party to the alternative remedy under S. 69.

(ii) The earlier election was set aside and the Court ordered re-poll. Before re-poll, the Act was amended. Any election notified after amendment of statute should be consistent with the amended provisions of the Act, as held in Gopalakrishnan v. State of Kerala (2011 (3) KLT SN 51 (C.No.48).

Inquiry & Investigation

The question for consideration in Prakash v. State of Kerala (2011 (2) KLT 953) is whether in view of S.68A is it within the power of the Special Judge to direct the V&ACB to conduct an enquiry/investigation and the V&ACB to enquire/investigate into matters relating to co-operative societies. S. 68A provided for appointment of an officer not below the rank of the Deputy Inspector General of Police as Vigilance Officer to conduct enquiry/ investigation into cases of misappropriation, corruption and other major irregularities in the society as may be referred to him by the Registrar and submit a report to the Registrar.   The investigation under Chapter XII of the Criminal Procedure Code, 1973, is to culminate in a final report to the submitted before the appropriate Court as provided under S.173(2) of the said Code. If such report discloses commission of an offence, the appropriate Court is to proceed against the offender as provided in the Code. The report of the enquiry/investigation as per S.68A is not for the purpose of putting the offender on trial. It could be for the purpose of a departmental enquiry or other action as provided by the Act.

Exemption  to  Societies

Government is vested with wide discretional power in the matter of grant of exemption. S.12 deals with contingencies where the Registrar, if satisfied, proposes to alter the area of operation of a society for the purpose of improving the services rendered by it. S.101 operates in a totally different contingency or situation. It deals with power of the Government to grant exemption in public interest. The impugned order of the Government issued under S.101 was to obviate the legal impediment, if any, that may ensure under S. 7(1)(c) if a new society is allowed to be established in the area where the appellant is now operating. The Division Bench in Nachimuthu v. State of Kerala (2011 (1) KLT 651) held that the Government is vested with discretional power in the matter of grant of exemption and is vested with powers to relax occasional rigour of provisions of the Act and to advance its object in public interest. Both the sections (Ss.12 and 101) operate in totally different contingency and situation.

Applicability  of  Consumer  Protection  Act

On the allegation that there was deficiency of service on the part of the co-operative society, the second respondent filed a complaint before the Consumer Disputes Redressal Forum. Overruling the contention of the society that the proceedings would be barred in view of S. 69 of the Act, the first respondent held that the proceedings would be maintainable. On appeal in Enathu Service Co-operative Bank Ltd., v. Consumer Disputes Redressal Forum (2011 (1) KLT 573), the Court held that the remedies provided under Consumer Protection Act are not in derogation of those provided under other laws and that the said Act supplements and not supplants the jurisdiction of the civil courts or other statutory authorities. Going by cl.(e) of S. 2 of the Consumer Protection Act, ‘consumer dispute’ means a dispute where the persons against whom a complaint has been made, denies or disputes the allegations contained in the complaint; and the definition of ‘person’ in col. (m) of S. 2 includes in sub-cl. (iii) a co-operative society. This, by itself is abundant to hold that a co-operative society is a person that could be subjected to an action before a Consumer Disputes Redressal  Forum by raising a consumer dispute against such person. To creep up this decision, the Court relied on a judgment of the Apex Court in State of Karnataka v. Viswabharathi House Building Society (2003 (1) KLT SN 100 (C.No.133) SC = (2003) 2 SCC 412).

Employees of Societies

(i)  In Philomina Dominic v. Kerala State Co-operative Housing Federation (2011 (1) KLT SN 27 (C. No.34) it was held that under R. 198, when the appointing authority is the board, the order of suspension cannot be passed by the Managing Director. An order of suspension is primarily an administrative order, but it cannot be passed without proper application of mind.

(ii) The amendment made to clause 21, vide G.O. dated 4.1.2008, to the Co-operative Societies Pension Scheme, 1994 adding the word “or” before the words “on attaining age of 50 years” is curative in nature for rectifying an omission, even though the word “substituted” finds a place. It is not a case where earlier provision was repealed and new provision was added by substitution. Hence amendment is only clarificatory and curative one and provision will relate back to time when prior provision was introduced, vide Velayudhan v. State Co-operative Employees Pension Board (2011 (1) KLT 399).

(iii) Whether an employee of a member society should continuously be employed in such society until appointment in apex/central society for purpose of claiming reservation in quota reserved thereunder was the question decided by the Division Bench in Shibi v. State of Kerala (2011 (1) KLT 873). Affirming the decision reported in 2010 (3) KLT 662, it was held that since the post in the apex/central society is reserved for employees of member societies, necessarily the status of the applicant as an employee of the member society is the requirement not only to apply for the post for such employment but such employment should continue until that person gets appointment in the apex/central society. Those who leave the service of the member societies during selection process, will cease to be employees of member society and consequently the same make them ineligible for application in the quota. Continuous employment during the whole selection process is the requirement to qualify the appointment under the quota reserved for employees of member societies in the apex/central society.

(iv) Since the power has been granted to the Government to frame rules and regulations regarding service conditions by S.83 of the Act, the Government has the necessary powers to frame rules permitting transfer of employees. Transfer is not a mode of appointment but only a mode of regulating the posting of employees. When inter -bank transfers are permitted, it cannot be said that such transfers amount to appointment that is not permissible, vide Mohandas v. State of Kerala (2011 (2) KLT SN 40 (C. No. 54)).

(v) The power of relaxation under R. 185(8) has to be used to ensure justice and equity without nullifying the operation and effectiveness of the rules in the guise of relaxing their rigour. The power of relaxation vested in the society as well as the Registrar is not allowed to be misused. Power of relaxation must be exercised only in exceptional cases and such exercise must be with utmost care, circumspection and caution. The paramount concern must be the welfare of the society and not the individual employee who might benefit from the order of relaxation is the pronouncement of the Division Bench in Karthikeyan v. Registrar of Co-operative Societies (2011 (2) KLT SN 57 (C. No.75)).

(vi) The short question that arises for consideration in Purushothaman v. Kerala State Co-operative Employees Pension Board (2011 (3) KLT 250) is whether the employees of a co-operative society who joined in the Contributory Provident Fund established by the employer society long before the Kerala Co-operative Employees Self Financing Pension Scheme, 1994 was introduced, are entitled to have their service prior to the date on which they joined the Fund reckoned for the purpose of computing the length of qualifying service for the purpose of determining the pension payable to them. It was held that in accordance with the stipulations contained in clause (1)(a) of paragraph 19 of the pension scheme, the length of service which the petitioners had commencing from the date of joining the Fund also can be treated as qualifying for pension. The third proviso to the said clause applies only to those employees who were probationers at the time when the scheme was implemented, viz., on 14.3.1995. The findings of the learned single Judge were challenged. The Division Bench, in Purushothaman v. Kerala State Co-operative Employees Pension Board (2011 (4) KLT 455) dismissed the Writ Appeal.

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.