Surrogacy – Assisted Reproductive Technology; DNA Profiling –

It’s Course and Consequence in India

(By K.Shibili Naha, Advocate, High Court of Kerala)

Indisputably, we are living in an era of scientific advancement and technological boom.  Everything comes handy these days, we just need to name it and it is there right in front of us, just a click away.  Precisely, technology has taken the world to unfathomable heights bringing us so close and enabling accessibility and ease to almost all those otherwise cumbersome tasks, within our finger tips.  It’s impact on various walks of life makes no exception to the medical field.

The technological advancement has paved way to even realising an ardent desire/dream to have/raise a child, for those less fortunate lot, who are otherwise unable to conceive or chose not to. Treatments are available all over India for infertility and artificial reproductive technology (ART) is also not alien to our society. In a country where progressive legislations are brought in, even the courts of law recognizing LGBTQ rights, live-in relationships and different sexual orientations for that matter, surrogacy is not something unpalatable.

A recent judgment of the Kerala High Court held that insisting mentioning of name of father in case of a single parent/unwed mother getting conceived by assisted reproductive technology (ART) is violative of fundamental rights of privacy, liberty and dignity (xxxx v. State of Kerala & Ors)*.The learned single Judge held that thereis a need to adapt changes so that appropriate modifications/changes/additions/alterations can be made in relevant Statutes to embrace the change, in view of the advance-ment in technology. 

The above judgment is indeed thought provoking.  The very concept of surrogacy, its social, technological, moral and legal facets certainly requires debate and discussion.  Commercial surrogacy has largely been an unregulated industry in India for the past few decades.  The Surrogacy (Regulation) Bill 2019 aims to regulate this industry, precisely the commercial exploitation of the very activity. The same postulates altruistic surrogacy involving no money or such other consideration at all.  This is in fact a boon for the childless couple.  Be that as it may, the intricacies involved and the impact of the same on the social fabric of our society may turn out to be a bane! This needs to be taken care of, rather analyzed proactively, given its vulnerability to open up a Pandora’s Box.

Assisted Reproductive Technology (ART) has grown tremendously around the world.  India is currently the largest hub of commercial surrogacy, given the ‘cost effectiveness’ of the whole procedure compared to many developed countries.  The number of surrogacy births in India has shown a steep rise statistically between 2007 – 2009.  As per the bill, the eligibility criterion has been redefined.Going by Section 2(g) of the 2019 Bill, a “couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively and Section 2(r) defines an “intending couple” as who have been medically certified to be an infertile couple and who intend to become parents through surrogacy.  Further Section 2(zc) defines surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.  Similarly, going by the definition of “surrogate mother” as provided in Section 2(zf) of the bill means a woman bearing a child (who is genetically related to the intending couple through surrogacy from the implantation of embryo in her womb and fulfills the conditions as provided in sub-clause (b) of clause III of Section 4.

Section 4(III)b(I) says that no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be  a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise.  The sum and substance of the regulations sought to be brought in leads to a conclusion that surrogacy could be possible only through a person of a particular age group, genetically related to the intending couple and has a child of her own. This goes a long way in dispelling the possibilities of abuse, exploitation and the havoc that is apprehended.

Notwithstanding the regulations sought to be implemented, surrogacy has lot more ramifications than any other medical procedure or technology known to mankind.  Those surrogate children already born would certainly have to face a lot of social or even legal obstacles in future in as much as there was no such regulations during the period they were conceived.  Many couple, who are married and also in live-in relations, including celebrities have benefitted out of commercial surrogacy in India and abroad as well.  Those affluent foreigners were easily able to find a feasible surrogate mother from India, quite obviously for a pittance.  It is no secret that many of those affluent were even going for a selection of gamete; essentially to have a better offspring with a particular DNA profile, that is to say to have a child with no genetic disorders on one hand and to have an exceptional pedigree. DNA profiling is a forensic process which is sometimes referred to as genetic finger printing, the primary disadvantage of which is that it is not 100% accurate.  The same has privacy issues as well, given the fact that it can be saved in a database indefinitely.  However, in countries like the United States the DNA banking begins at the stage of birth itself.  Almost every new born has their DNA examined immediately after being born.  This is done so as to discover congenital disorders or such other defects.  The pros and cons of DNA finger printing shows that this technology one way intended to encourage a healthy save and peaceful society.  Be that as it may, this very technology also is used in very many destructive ways.  It is therefore important to know what is being done with your DNA in view of the bare fact that the data base of the same is accessible to third parties owing to the security vulnerabilities.It is all about the hidden hazards of a selective parenthood.  The United States Supreme Court in a recent judgment by a majority of 5:4 refused to stay a law enacted by Texas effectively banning abortions as early as 6 weeks into the pregnancy.  Texas Heart Beat Act, which came into force with effect from 1.9.2021 makes it unlawful for the physicians to perform abortions if they either detect cardiac activity in an embryo or fail to perform a test to detect such activity.  The Act is brought in to prevent abortions including those done after detection of an unborn child’s heartbeat. The Act also contemplates a civil action by any person aggrieved by any violation of the said regulation. In India the Medical Termination of Pregnancy (MTP Amendment) Act 2021 restricts an abortion until 24 weeks of pregnancy.  We also have laws that prohibit pre-conception and pre-natal gender screening or testing, making it illegal.  The irony is that sex determination and even DNA profiling is possible in Artificial Reproductive Technology, despite enactments in place to restrict and regulate the same.

The wide usage of DNA Data Banks across the globe has encouraged India to use and regulate DNA profiling technology and create a database of its own.  Pursuant to the 271 th report of the Indian Law Commission, the Union Cabinet had cleared the DNA Technology (Use and Application) Regulation Bill in 2018.  The same however lapsed consequent to the dissolution of the 16^th Lok Sabha and was later presented before the 17^th Lok Sabha in 2019; and the same is under consideration of the standing committee of the Rajya Sabah.  More or less equally, the said bill once it becomes a law is also likely to pose both moral and legal issues akin to the Surrogacy (Regulation) Bill 2019. Questions relating to personal liberty and privacy are likely to trigger.  Both the laws to be may essentially have to undergo the tests of reasonableness and infringement of right to privacy.  The golden triangular rule postulates the necessity to pass the tests under Article 14,19 & 21 of the Constitution of India as laid down by the Hon’ble Supreme Court of India inMinerva Mills Ltd. v. Union of India
(1980 KLT 1030 (SC).Pursuant to the judgment of the Hon’ble Supreme Court in Justice K.S. Puttaswamy (Rtd.) v. Union of India(2017 (4) KLT 1 (SC),the right to privacy is part of
Article 21 of our Constitution.  Both the above proposed enactments have trappings of transgressions into the privacy of the citizens if not amended in terms of the golden triangular rule set by the Apex Court in the Minerva Mill’s case. 

In surrogacy, there is a lot more than what is involved in human organ transplantation.  The latter is governed by the Transplantation of Human Organs and Tissues Act 2014.  The Act and the Rules thereunder facilitates transplantations of organs and tissues.  It is quite common these days that we come across several cases of human organ transplantations.  It is apposite to mention that renal failure is alarmingly high in the State of Kerala and kidney transplantation has become as simple as any other treatment.Unlike a normal organ transplant, surrogacy involves the transfer and deposit of a gamete which is a most precious human secretion responsible for reproduction.  A gamete is a mature haploid male or female germ cell, which is able to unite with another of the opposite sex in sexual reproduction to form a zygote.  This verily, is the sole factor responsible for the preservation, protection and perpetuation of mankind. So also DNA profiling or finger printing comprises of techniques that identifies the DNA from a certain individual or group of individuals. This procedure helps to identify parentage, family relationship and appropriate matches for transplantation of organs.  It has helped criminal investigations to a great extent.  However, the same is not 100% foolproof.

Now the 2019 Bill has to a great extent paved way to make the whole process transparent and regulated with the solemn object of preventing abuse and misuse.  The most significant change sought to be brought in is certainly in respect of the eligibility criteria.  As mentioned above, a stranger can no longer be a surrogate mother.  Further, the age category stipulated also needs to be satisfied, it also postulates that the surrogate mother should have borne a child in order to be eligible to offer herself to be a surrogate mother.  Although, the proposed enactment envisages a total check on the commercial surrogacy and exploitation, some of the provisions are likely to be subject matter of challenge alleging violation of Articles 14 & 21.  DNA Technology (Use and Application) Regulation Bill also would face a new gamut of privacy infringement issues. Let us hope that the sublime principle underlying the age old idiom –“law for man and not man for law” would come to our rescue.

124th Constitutional Amendment & 10% Reservation for ‘EWS’

(By M.K.S.Menon, Advocate, Supreme Court)

Reservations in admission to educational institutions and employment is no doubt an instrument to manipulate the vote bank but at the same time we cannot ignore the fact, that in India substantial chunk of the population is facing oppression on account of their cultural backwardness even today. Every election witnesses the ugly tactics adopted in their manifestos by various political parties to which I don’t believe that there can be an exception.  My endower today is to analyse the outcome of the 124^th Amendment to the Constitution of India whereby Articles 15(6) & 16(6) were added to the existing Articles 15 & 16 in Part III of the Constitution and also the subsequent bill dated 26.07.2021 implementing EWS quota.

The division of power into the 3 pillars of the Constitution i.e.,‘Legislature -Executive- Judiciary’ is the foremost ‘check and balance‘ adopted in our Constitution to achieve the goals enshrined in the preamble of our Constitution. The caste divide was the biggest challenge faced by the founding fathers of our Constitution when they decided to build the backbone of our political system in the name and style as Constitution of India. They wanted to provide for caste reservation for a maximum period of 10 years and the original Article 15 & 16 provided reservation only for the first 10 years of the formation of our republic.However it continued till date, i.e., even after 70 years. Here I wish to highlight the alarming argument raised before the Constitution Bench in the case of ‘Marathas’ culminated in the judgment headed by Justice Ashok Bhushan i.e., Jaishri Laxmanrao Patil v. The Chief Minister (2021 (3) KLT 465 (SC) that Maratha community is walking backward during the last several decades after independence and therefore they also needed reservation. However the Constitution Bench headed by Justice Ashok Bhushan struck down the Maharashtra Legislation by declaring that it is a movement aiming at CASTE RULE.

Way back in 1992, after tremendous zest and deliberation, Hon’ble Supreme Court (9 Judges Bench) rendered the landmark judgment in the case of ‘Indra Sawhney’ 1993 (1) KLT OnLine 1021 (SC)  and the same is considered to be the touch stone of equality in the field of reservations, by aligning 3 Articles namely Article 14,15 and 16. It was held that any reservation beyond 50% of the number of seats to be filled, shall be in violation of Part III of the Constitution, especially Article 14 qua meritorious candidates which shall affect the ‘Basic Structure Doctrine’ enshrined in Kesavanada Bharati’s (1973 KLT OnLine 1110 (SC) case.

After almost 30 years, recently in 2019,Central Government came out with the 124^th Constitutional amendment where by Article 15 & 16 were amended and a Sub-Article (6) was incorporated in both, with an avowed desire to address the demand of economically weaker but socially forward section of the populace. The Constitution of India does not in so many words prescribe 50% limit for reservation but the Hon’ble Supreme Court by it’s ingenious interpretation of the Constitution and by applying the principles of ‘Basic Structure Doctrine,’ held that any reservation exceeding 50% of the available vacancy, violates Article 14 qua the meritorious candidates.

Now in 2021, the latest notification came on 26.07.2021 provided reservation of 27% for OBC and 10% for EWS in educational institutions. If this is implemented, no doubt Indra Sawhney’s judgment shall stand violated because the total reservation will cross the 50% limit [15%(SC)+ 7.5%(ST)+27%(OBC) + 10%(EWS  = 59.5%]. The argument on behalf of the Central Govt. probably would be that these seats were created in addition to the existing reserved seats so as to address the grievance of EWS because Article 15(6) as amended vide 124^th Constitutional amendment provides for it.  I am of the opinion that it is not that simple a proposition to get over the Constitutional challenge within the frame work of  Indra Sawhney judgment.

The 124^th Constitutional Amendment providing for reservation based on economic backwardness is now under the scrutiny of the Hon’ble Supreme Court and it has been referred to a Five Judge Bench. I am of a strong view that Constitutional Amendment can survive the Twin test of ‘Basic Structure Doctrine’  but with a caveat that actual implementation of the 124^th amendment is a herculean task, because no political party would ever dare to disturb the existing caste quotas to accommodate 10% EWS. If EWS quota has to be introduced in addition, by reserving the added 10% seats to EWS, that will definitely go against the judgment in‘Indra Sawhney’s case ’because the added seats will merge with the existing/available seats,which shall automatically increase the caste quotas and by all probabilities it will be struck down by the Hon’ble Supreme Court.

‘Born as a golden child but destined to be abandoned as a dead letter for another century’.

The Jurisdiction -- Dimension of Juristic Thought

Concerning LOK AYUKTA

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)

The present work and its projected sequel of the article titled “Jaleel v. Muhammed Shafi (2021 (3) KLT 167) Needs Re-visitation” appeared in 2021 (4) KLT Journal 51 highlight the expostulations with the legal propositions and views expressed therein stated to be not just critical but also didactic. The main purpose of this article is to examine the nature, and the basic conceptions of law concerning the Kerala Lok Ayukta Act, 1999 (for short, Lok Ayukta Act) in the constitutional context and in the light of the law declared by the Supreme Court. The attempt in this article is to diagnose the sinister syndrome in taking the Minister out of the jurisdiction of the Lok Ayukta on a legally untenable stand that a Minister does not hold a “post” and the complaint is in respect of actions taken by or on behalf of the Government of Kerala. The objective of this article is to find out how much logical sense can be given to the assumptions, concepts and precepts of law expressed in “Jaleel v. Muhammed Shafi -- Needs Re-visitation.”

The article “Jaleel v. Muhammed Shafi - Needs Re-visitation” gives us a distorted and highly tendentious view of the activities of the Minister interrelated with the jurisdiction of the Lok Ayukta. The view of the writer that any direction by the Lok Ayukta that the Minister shall vacate his office is beyond the provisions of the Kerala Lok Ayukta Act is one made without noticing the distinction between communicating the findings and recommendations to the competent authority as required under Section 12(3) of the Lok Ayukta Act and issuing direction in that regard. The Lok Ayukta only communicated its findings and recommendations as enjoined by Section 12(3) of the Lok Ayukta Act to the competent authority. The assumption of the writer of the article that the Lok Ayukta issued direction and thereby it stepped outside its jurisdiction is completely indefensible. Communicating findings and recommendations containing declaration under Section 14(1) of the Act does not amount to giving direction and it is author’s extraversion. A fortiori the opinion voiced by the writer of the article that the Minister does not hold a ‘post’ and the complaint is in respect of actions taken by or on behalf of the Government of Kerala, any direction by the Lok Ayukta that he shall vacate the office is beyond the provisions of the Lok Ayukta Act is not a logical derivation from the set of facts and is ununderstandable. It carries hardly anything more than the personal view of the writer of the article.

In pursuance of the declared policy of the State Government to eliminate corruption in Public Service and to widen the ambit of the Kerala Public Men’s Corruption (Investigations and Inquiries) Act, 1987 by including Public Servants and Government Servants, the members and the person in service of the local authority, statutory and non-statutory bodies and co-operative societies within the purview of the same, it was decided to bring forth a comprehensive new legislation for the effective inquiry and investigation of complaints against the Public Servants and matters connected therewith or ancillary thereto. The Preamble to the Lok Ayukta Act is explicit on its terms that Lok Ayukta and Upa-Lok Ayukta are for making inquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Appointment of Lok Ayukta and Upa-Lok Ayukta is aimed at ensuring clean and transparent administration. The Lok Ayukta and Upa-Lok Ayukta have been vested with power to conduct preliminary verification, investigation and suggest appropriate remedial measures in the administration. “Law is not an omnipotence in the sky, but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bulls eye.”¹ The Kerala Lok Ayukta Act is a fruitful legislation for the effective inquiry and investigation of complaints against public servants and matters connected therewith or ancillary thereto.

The expression ‘Public Servant’ is defined in section 2(o) of the Lok Ayukta Act to mean a person who is or was at any time,--

(i) the Chief Minister;(ii) a Minister;(iv) a Government Servant [(iii), (v) to (vii) omitted].

In Section 2(c) “Chief Minister” is defined to mean the Chief Minister of the State. Section 2(l) defines “Minister” to mean a member of the Council of Ministers of the State excluding the Chief Minister.

The import and connotation of the term ‘Public Servant’ appearing in Section 2(o) of the Act expressly embraces both the Chief Minister and Minister within its gamut. In M.Karunanidhi v. Union of India ², a Constitution Bench of the Supreme Court held:

“57. .........It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is conterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, therefore, a public servant within the meaning of S.21(12) of the Penal Code.”  

The legal issue whether Chief Minister and a Minister are comprehended by the expression ‘public servant’ is concluded by the Constitution Bench decision in M.Karunanidhi’s case and is no longer res integra. The definition of ‘public servant’ embraces both the Chief Minister and a Minister which received statutory confirmation in Section 2(o) of the Lok Ayukta Act. The view expressed in the article “Jaleel v. Muhammed Shafi -- Needs Re-visitation” that a Minister does not hold a ‘post’ and his actions are collectively taken by or on behalf of the Government of Kerala and any direction by the Lok Ayukta that he shall vacate the Office is beyond the provisions of Kerala Lok Ayukta Act is an ‘irrationalist fallacy’.

The jurisdiction of the Lok Ayukta to declare that the Minister should not continue to hold the post on its satisfaction that the complaint involving the allegation against the Minister is substantiated does not depend on the ‘post’ held by the public servant. The jurisdiction of the Lok Ayukta cannot be whittled away by giving a narrow sense to the word ‘post’ held by the public servant. Such an approach is misleading, improper and unsupportable. The factual pre-condition for making the declaration that one should not continue to hold the post held by him is that the person concerned shall be public servant. The view expressed in the article that a Minister does not hold a ‘post’ and his actions are beyond the provisions of the Lok Ayukta Act is grounded in the word ‘post’ on a misconception that it does not en-compass its counterpart ‘office’. The word ‘post’ or ‘office’ means position in service. An office means a public or private employment with certain duties to be performed ^3,4. The Chief Minister and a Minister hold public office and discharge public service. Therefore, under Section 14(1) of the Lok Ayukta Act, the Lok Ayuktaha’s power and authority when the allegation is substantiated and the Lok Ayuktais satisfied that the complaint involving the allegation against the ‘public servant’, be it Chief Minister or a Minister concerned, should not continue to hold the post held by him, to make a declaration to that effect in his report under sub-section (3) of Section 12 of the Act. Inevitably, the view expressed in the article “Jaleel v. Muhammed Shafi - Needs Re-visitation” that since the Minister does not hold a ‘post’, his actions are collectively taken by or on behalf of the Government of Kerala is a view expressed in absolute disregard of the canons of the Constitutionalism.

The fact of the matter is that the appointment of the cousin of the Minister as the General Manager of the Kerala State Minorities Development Finance Corporation was made on deputation. In Umapati Choudhary v. State of Bihar ⁵ the Supreme Court held: “Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. ……….”

The Kerala State Minorities Development Finance Corporation is a Non-Banking Financial Company registered under the Companies Act, 1956. The Kerala State Minorities Development Finance Corporation is a wholly-owned Government Company governed by its Articles of Association. Therefore, the appointment of the 5th respondent as the General Manager of The Kerala State Minorities Development Finance Corporation by the Minister is not an appointment under the Government and is not one made by the Government in exercise of the executive power of the State. Necessarily, the assumption that the action taken by the Minister is an action collectively taken by or on behalf of the Government of Kerala is not a logical derivation from the set of facts and in the Constitutional context. This non sequitur invalidates the view that any direction by the Lok Ayukta that he shall vacate the office is beyond the provisions of the Kerala Lok Ayukta Act.

Signally, the order of appointment of the 5th respondent though issued as G.O.(Rt) No.7481/2018/GAD dated 16.11.2018 is not an executive order validly issued in exercise of the power under Article 162 read with Article 166(1) of the Constitution.

Under our Constitution, the Governor is a constitutional head and the administration of the State is run by the Council of Ministers. The Constitution has authorized the Governor under Article 166(3) to make Rules for the more convenient transaction of business of the Government of the State and for the allocation among its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. The Governor can make Rules on the advice of his Council of Ministers for more convenient transaction of business. Accordingly, the Governor has made the Rules of Business of Government of Kerala in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution. Rule 5 Section 1 of the Rules of Business provides that the Governor shall, on the advice of the Chief Minister, allot the business of the Government among the Ministers by assigning one or more departments to the charge of a Minister. Rule 8 provides that subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule shall be brought before the Council in accordance with the provisions of the Rules contained in Part II. Second Schedule to the above Rules specifically enumerates the cases to be brought before the Council and such of those cases alone need be brought before the Council of Ministers. Individual Minster can attend to the numerous matters that come before the Government and that each and every decision is not required to be taken by the Cabinet. Therefore, the assumption or imported attribute went to showing that the complaint about the appointment of the 5th respondent was based on the action collectively taken by or on behalf of the Government of Kerala goes against the very grain of the Rules of Business of the Government of Kerala. All this underlines the unacceptability of the view that the actions of the Minister are collectively taken on behalf of the Government of Kerala.

It is a mandatory statutory duty conferred upon the Lok Ayukta under Section 12(3) read with Section 14 of the Act that if, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lok Ayukta or the Upa-Lok Ayukta is satisfied that such allegation is substantiated, either wholly or partly, it shall, by report in writing, communicate its findings and recommendations to the competent authority. Section 14 of the Lok Ayukta Act contains the imperative note that where, after investigation into a complaint, the Lok Ayukta or Upa-Lok Ayukta is satisfied that the complaint involving an allegation against the Public Servant is substantiated and the Lok Ayukta is satisfied that the Public Servant concerned should not continue to hold the post held by him, the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, shall make a declaration to that effect in its report and the competent authority shall accept the declaration. The exercise of those statutory powers conferred on the Lok Ayukta under the Act cannot be branded as acting beyond the provisions of the Kerala Lok Ayukta Act or acting outside the province and powers of the LokAyukta.

In “Jaleel v. Muhammed Shafi- Needs Re-visitation” the statement that the Lok Ayukta omitted to notice that there was no “grievance” to the complainant as the appointee had already vacated the office when objections were raised is a sweeping generalization. The “grievance” as defined in Section 2(h) of the Act takes in personal or individual grievance and the person who is making the complaint must show that he sustained injustice or undue hardship in consequence of mal-administration. On the other hand, the word “action” is defined in Section 2(a) of the Act to mean any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly. On comparison of the word “grievance” denoting a real or imagined personal cause of complaint, the word “allegation” is broader public grievance in matters of public interest of general importance. A complaint can be made before the Lok Ayukta on allegations that a public servant has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person or was actuated in the discharge of his functions as such by public servant by personal interest or improper or corrupt motives or is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant falling within the definition of “allegation” contained in Section 2(b) of the Lok Ayukta Act. The complaint against the 5th respondent was in regard to thecategories of abuse of power covered by the definition of “allegation” in section 2(b) of the Lok Ayukta Act. Therefore, if the complaint was made on the basis of personal grievance, whether the offending grievance would survive after the appointee vacated the office is a contentious issue. However, if the complaint is made on the basis of ‘allegation’ based on abuse of position as a Minister in making nepotistic appointment by showing favouritism is substantiated, such illegal or illegitimate or ultra vires action cannot be neutralised by resignation of the 5th respondent and the Lok Ayukta is duty bound to make declaration that the Minister should not continue to hold the post held by him. Therefore, the proceedings before the LokAyukta cannot be treated to have become infructuous,the moment the 5th respondent fraudulently obtained the appointment through the spoils system resigned from the post. In that event, the resignation by the beneficiary does not absolve the Minister from guilt of improper and corrupt motives and lack of integrity shown in his capacity as such Public Servant.Thereby, the Lok Ayukta cannot give the Minister dispensation from communicating the findings and recommendations to the competent authority as enjoined by Section 12(3) of the Lok Ayukta Act.  

In the article it has been stated that the declaration made by the Lok Ayukta purportedly under Section 14 of the Act is confined only to the Minister concerned and it militates against the wording in the Preamble of the Act that is mainly concerned with the action taken by or on behalf of the Government of Kerala. However, the preamble also covers making enquiry into any action including any omission and commission in connection with or arising out of such action taken by certain public servant in the State of Kerala in certain cases and for matters connected there with or ancillary thereto. Therefore, the assumption that the Preamble of the Act is mainly concerned with the action taken by or on behalf of the Government of Kerala is totally unfounded. This stance on the issue is against the express language of the Preamble.

The article also takes offence at the report of the Lok Ayukta saying it confined only to the Minister concerned and not a word is stated against the Chief Minister. The action of the Minister in giving appointment to his cousin in the Kerala State Minorities Development Finance Corporation is the subject-matter of the complaint before the Lok Ayukta. The above appointment order having not been issued in exercise of the executive power of the State and being not an action taken by or on behalf of the Government of Kerala, the complaint does not pertain to the Chief Minister and the Council of Minister sand they are not answerable to the ‘allegation’. The Chief Minister was not a party to the proceedings before the Lok Ayukta. No warrantable circumstance to state a word about the Chief Minister in the Report is shown in the article. The Chief Minister thus did not fall within the jural sphere attending the admitted state of facts of the complaint filed before the Lok Ayukta.

Yet here again it is shown that the interplay of Sections 12 & 14 does not appear to have received the attention it deserved from the Hon’ble Division Bench which has not been substantiated by any acceptable argument with logical reasoning.

 Let me conclude with a sober quote:

Criticism is a study by which men grow important and formidable at very small expense.                                                                                                     -- Samuel Johnson        

FootNotes

1.       J.Papa Rao v. Government of Andhra Pradesh & Ors. (2004 (1) KLT OnLine 1315 (A.P.) = 2004 (2) ALD 855.

2.       M.Karunanidhi v. Union of India - 1979 KLT OnLine 1020 (SC) = AIR 1979 SC 898.

3.       Northern India Ferries Act, 1878.

4.       Dewan Joynal Abedin v. Abdul Wazed Alias Abdul Wazad Miah& Ors. (1987 (2) KLT OnLine 1138 (SC) = 1988 (Supp.) SCC 580), Dt. 15.12.87.

5.     Umapati Choudhary v. State of Bihar & Anr. (1999 (2) KLT OnLine 928 (SC) = (1999) 4 SCC 659)

Need for Rejuvenating the Medical Termination of Pregnancy (Amendment) Act, 2021 in the Light of ABC v. Union of India
(Reported in 2020 (4) KLT 279)

(By Sajeer.H., Kerala State Consumer Disputes Redressal Commission, Tvm.)

      A notable and salutary judgement of the Honourable High Court of Kerala, by name as titled above, is the inspiring aspect to pen this article. By recognising the anonymity and privacy of a rape victim, the court pronounced a verdict on merit in a speedy and efficacious manner. When we go through the judgement it can be seen that it excellently utilised all of its powers for a speedy justice to the victim. Therefore, this judgement is an exception to the legal saying that “hurried justice is buried justice”.

This is an emotional case when it begins a hapless father knocked at the door of justice with prayer for diluting the rigidity of the Medical Termination for Pregnancy Act,1971 and for saving her daughter’s life and taboo imposed on his home by society. While disposing of the matter on merit and without even a whisper about the maxim“Dura Lex Sed Lex”, (Law is Harsh But is Law ), the court has given direction to the Government Pleader to make necessary arrangement to communicate the necessary steps to the police and the doctors on time.

The opening sentence of the case law is that, (…. The court) “confronted with a difficult and disheartening situation on the fate of a minor girl”. The father of a minor girl approached the Sessions Court seeking permission to terminate the pregnancy of his daughter. His daughter Y had eloped with her paramour, a 28-year-old fraudulent married man, five months back. Knowing the missing of ‘Y”, the minor girl, her parents made earnest efforts to trace her but all efforts of them are futile. Later, the police authorities managed to trace the location to Mangalore. Her paramour was arrested and charged under various provisions of the Indian Penal Code and the protection of Children from Sexual Offences Act (POCSO Act). Y was restored to the custody of her parents. by that time. However, the pregnancy of ‘Y’ had already advanced considerably. The Sessions Court did not entertain the petition citing jurisdictional reasons. The court was apparently of the view that the maximum permitted period for termination of pregnancy based on the opinion of two registered Medical Practitioner under the Medical Termination of Pregnancy Act, 1971 was twenty weeks and it had already expired by then.

Aggrieved by the order of the Sessions Court, the father rushed before the honourable High Court, praying for the same relief. Considering the urgency, the honourable High Court took up the matter, heard and expeditiously disposed of the matter within three days. The judgement also protects ultimate privacy and anonymity of “Y” in all respect.

When we go through the verdict in letter and spirit, we could understand that how the judiciary marvellously protected the anonymity of the victim.Considering the spread of the covid pandemic, it directed the District Police Chief (hiding place for the sake of anonymity) to facilitate the travel of the petitioner and his family to the Medical College Hospital and their return.It issued another direction to the Registry that “while issuing the certified copy of the judgement or otherwise, absolute privacy shall be maintained to the identity of the petitioner and that of ‘Y”. So much so, it is directed that copy of the writ petition, affidavit, the documents annexed to it and the medical report shall not be issued to any third person to this writ petition without securing orders from this court or the judge”.

It can be called a salutary case.Because, before disposing off the case on merit, the court’s point of view was the ultimate welfare of the poor victim girl. So, it applied a golden rule on Section 5 of the Medical Termination of Pregnancy Act, 1971. It allowed the petition by permitting ‘Y’ to undergo medical termination of her pregnancy.

Now let’s go to the pros and cons of the Medical Termination of Pregnancy Act,1971 and the present (Amendment) Act, 2021. (The verdict was before the amendment).

Though the amendment Act enhanced the term medical termination of pregnancy to 24 weeks from 12 to 20 weeks, the law makers,knowingly or purposefully missed certain fundamental rights of women such as the right to carry and the right to abort. Body of women and minor girls are not a toy in the hands of miscreants.

Section 3 of the amendment Act, empowers a registered medical practitioner to conduct Medical Termination of Pregnancy subject to the provisions of sub-section (4) of the MTP Act. It says that pregnancy may be terminated by a registered Medical Practitioner at the abode of a Government Institution or an institution recognised by it. For termination, the length of the pregnancy does not exceed twenty weeks, if such medical practitioner or the length of the pregnancy exceeds twenty weeks, but does not exceed twenty-four weeks, not fewer than two medical portioners are of opinion formed, in good faith that, -the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury, physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped

Explanation 1: where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2: where any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband to limit the number of children the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

3. In determining whether the continuance of pregnancy would involve such risk or injury to the health as is mentioned in sub-section (2), the account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(a) No pregnancy of a woman who has not attained the age of 18 years or who have attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(b) save as otherwise provided in clause (a) no pregnancy shall be terminated except with the consent of the pregnant woman.

Section 5 is the proviso of Section 4 and so much of the provision of sub-section (2) of Section 3. It creates to the length of the pregnancy and that the opinion of not less than two registered medical practitioners, shall not apply to their termination of pregnancy by the registered medical practitioner, in the case where he believes, formed in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

When a woman or minor are subjected to gang rape and became pregnant the same may be an aggression over their body, mind and privacy and the same leads to grave injury too. If it is so, it is for her choice, either to terminate the dirt from which fell on her body and or to continue as such. It is to be bear in mind that the law would certainly and necessarily be lean to her will and choice without even looking at the excuse as dura lex zed lex(Law is hard but is law).

It is emotionally to say that the rape victims are in triple shock throughout her life. The poor and innocent girls were either trapped by the gang by their sweetened words or raped by the inhuman wolf. Suppose, when they eloped, they would believe that the man showering love may be the protector of her rest of life. They could only bother and realise the real character of her paramour after some days in due course. But within it, an embryo may form in her womb. Some of the victims may end their life and some others may either return home or stranded somewhere. When she and her family approach a doctor for termination of her trapped pregnancy, the doctor shall look into three mandatory things. Else he will be caught by the Law.

The first thing, regarding her age and the second thing her period or term of pregnancy. Third thing is her health and her psychological conditions.

When she is under the age of 18, the doctor shall first to report the matter to the nearest Station House Officer, with full details. If the period of pregnancy does not exceed twenty-four weeks he may look into the physical and mental condition of the victim girl with anticipation that if the pregnancy will continue as such, how it affects the mother and child. If the doctor refused to conduct the termination on legal restrictions, then the victim girl may force to move from pillar to post for getting an order for terminating her pregnancy. Hence, compelling a girl to birth a baby of the rapist, on the excuse of term and fundamental right of an unborn baby, is an inhuman act and against the mandate of Article 21 of the Constitution of India.

Article 21 gives, inter alia,the right to live in a dignified manner. But on the contrary, the MTP Act as such compel a girl to carry her pregnancy up to the maximum period and forced her to give birth to a baby of a rapist. It is on the apprehension that her premature termination may lead a risk to her life and the foetus. Certainly, it is a double-edged sword.The Act purposefully didn’t cover a comprehensive medical report that even if the girl continues her pregnancy at her premature age, it may not cause risk to her life at the time of delivery and her rest of life. It didn’t cover a report of any sort that if she delivers a bastardised child, who will look after the child and who will close the mouth of the public against their words. What are the psychological implications may cause upon her and her rest of life? How far counselling succeeds? So, the legislature ought to have been given prime importance to the life of the victim and not to the life of the unborn baby.

It is true that our accusatorial system of trial fertilises crimes again and again. Though we had Section 228 A of I.P.C. and Section 19 of the POCSO Act, our media and the public spreads theses type of news swiftly. They will discuss these matters from petty shop to vine parlour. They won’t even think about the victim’s and her families’ mental sufferings. It is highly emotional to realise that often many minor girls not even understand the fact of her physical change after rape. The social stigma that she would face from her School, peer groups and society may lead her to acute mental stress and strain. The lawmakers didn’t think about these aspects and its sociological impact.

Judiciary is a man-powered justice dispensing system and has its own limitations. The exode of litigations and importance of each and every case may pressurise the judges to pronounce judgements in seniority and priority basis. An appreciable and salutary thing is that our honourable High Court allowed the termination of pregnancy of seven minors, who were sexually assaulted, within six months. But on the other side, it is a pitiable situation that around 243 medical termination of pregnancy cases are pending before the various Indian courts, as per the recent statistics, awaiting final orders.The delay may occur on various reasons such as, delay of medical report, psychological report or counselling report etc.
But the practical thing we look into is, we couldn’t stop running pregnancy term after conception. Every moment is preciously important for every victim.

It is pertinent to note that, the MTP lawmakers may not think about the availability of advanced medical facility and the rapid development of robotic technology in India. The parent Act was enacted in the year 1971 and the amendment Act was drafted in the year 2021. Medical Technology and research are well advanced as compared with the year of 1971. Many new types of equipment and methods are using in the Indian medical field for healing illness. The Health Care Index of 2021shows India occupies 42^nd rank among the world. In the last two decades, the advent of technology has also been transforming and the health care delivery information technology has made patient care more efficient and safer. The Internet has changed everything and its effect is evident in healthcare. From sharing knowledge to bringing doctors and patients closer.The Internet is impacting healthcare in a big way. Mobile health is freeing healthcare devices of wires and cords and enabling physicians and patients alike to check on healthcare processes on the go. From robotic surgical tools to radio-surgery techniques, and sophisticated imaging techniques to digital microscopes. The technology has penetrated every aspect of healthcare delivery. The lawmakers ignored these aspects by fixing a shorter term for the termination of pregnancy and giving unreasonable restrictions.

Woman had the right to carry and the right to abort in normal case. When married woman decided to go for pregnancy, it is her fundamental right to go with the safest pregnancy. But a woman or girl is being cheated, trapped or attacked by the miscreants on her body, mind and spirit such victims must have the unquestionable fundamental right of abortion or termination of her pregnancy.

Simply we can say that the Medical Termination of Pregnancy (Amendment) Act, 2021 is a dead lion and is not suit with the present age because of its lapse on Social Impact Study.

Before signing out, let’s put forward certain suggestions.

Firstly, in the case of rape victims, every registered medical practitioner has to be given the power to terminate the pregnancy of the victim, after obtaining the consent of the victim and her guardian. If so, they are directed to take the tissue of the foetus for DNA identification and maintain the same intact for future references and for the prosecution.

Secondly, priority may be given to the rape victims for termination, by considering their age, mental, psychological and social status than that of the life of the foetus. When a registered medical practitioner believes, the termination of pregnancy may cause risk to the life of the woman, then only he can refer the girl to another hospital, having sufficient facility for the safest termination ofher pregnancy.

Thirdly, the State shall bear all the medical expenses of the victim and her post operation care. The State shall strictly monitor the privacy of the victim girl throughout her life in all respect.

Fourthly, the State shall provide free counselling to the victim up to the period of her normalcy and shall provide adequate financial support to her for her education, mental upliftment. It shall provide government job to the victim girl on compassionate ground.

Fifthly, the judiciary shall ensure that no victims are to be unnecessarily harassed or dragged before a court of law. The State shall ensure no victim girls are to be pulled before a police station. The victim’s statement shall be taken at her residence, by a woman police officer, not below the rank of Assistant Commissioner of Police and such police officer and her associates shall be in plain clothes, while attending the victim.

Sixthly, the petitions/appeal on Medical Termination of Pregnancy shall be disposed of within four days from the date of receipt of it. Every Communication to the respondents shall be through E-Mail, Whatsapp, or telephonic messages. The Court shall ensure through the Public Prosecutor that the communications are properly sent to the respondents.

Seventhly strict direction may be given to the media that not to publish news regarding the medical termination matters trialed in a court of law or if not so, strict directions may be given to all that not to disseminate the identity of the victim or her location in any manner.

 Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India & Ors.(2017 (4) KLT 1 (SC) =  (2017) 10 SCC 1) stated that the freedom to choose to bear a child or not falls in the realm of privacy. Recognising a woman’s prerogative to make decisions about her health and body, the bench ruled that “there is no doubt that a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as guaranteed under Article 21. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating”.

It is painfully saying that the current legal provisions further aggravate the trauma of rape victims especially minors. Proper amendment of the Medical Termination of Pregnancy Act, 1971 and the Medical Termination of Pregnancy (Amendment) Act, 2021 is the only way to extinguish the mental agony of the rape victims. A speedy and fiat remedy may be a solace to the victim.

Therefore,ABC v. Union of India(2020 (4) KLT 279) is a salutary judgement in the arena of Medical Termination of Pregnancy and a golden feather to the judiciary.

Possessory Title Regarding Immovable Property in the Legal System

(By P.B. Menon, Advocate, Palakkad)

Possessory title is a very valuable right recognized and adopted by courts. The same is heritable and  alienable is a well settled principle of law. It is no longer res integra.                

Such possessory title gets recognition under two statutes under two different circumstances or situation. One in adverse possession under Arts.64 and 65 read with Section 27 of Limitation Act. The others under S.53A of T.P. Act.

But there are two essential differences between the two. Under the former the person holding possession is a trespasser but when such possession becomes adverse it ripens, so as to confer prescriptive title on him upon the said property so held in adverse possession. But under the latter possession starts with permission but he does not prescribe for title as title still continues with the vendor who entered into a registered sale agreement with possession with him. This is what is generally understood by the legal circle.

Regarding adverse possession see the latest ruling reported in 2019 (3) KLT 865 (SC).

Regarding possession under sale agreement see 2014 (1) KLT 598.

Now let us try to understand as to what is the title prescribed for by a person in adverse possession under the Limitation Act, Arts. 64 and 65 r/w S.27 therein. The decision cited above i.e., 2019 (3) KLT 865 is worth a study in depth as the same deals with scope of adverse possession in detail with reference to earlier case law of the Apex Court and High Courts besides Privy Council, Halsbury law of England and the world famous Perry case reported in 1907 AC 73. But the point I want to high light is as to what actually is the so called title which the adverse possessor has prescribed for. Is it prior owner title, certainly not, if we read S.27 Limitation Act. Regarding the scope of S.27 Limitation Act there is not much discussion in the above noted decision.

Under Art. 64 and Art.65 the possessory title by adverse possession is protected when read with S.27 of Lmitation Act as the prior owners right over the property is extinguished. S.27 does not confer or refer to the title if any of the adverse possessor gained. If we analyze the wordings in S.27 it only reads that on the determination of the period of limitation for instituting a suit for recovery of possession his right to the property is extinguished and not his title to the property. Right to the property could only mean right to recover possession of the property is lost but not title thereto. When one speaks of title or ownership of the property it is nothing but a bundle of rights which the owner/title holder enjoys over his property. One such right is to recover possession if he is out of possession for one reason or other and it is that right that is what is lost under S.27 of Limitation Act.

Really defendant who sets up adverse possession gets statutory protection under Limitation Act. The question of his title is not involved in the suit. Only plaintiff title is involved as he has to establish the same before praying for such relief. Thus a defendant who succeeds in a suit for recovery of possession on the ground of adverse possession it is solely on the basis of a statutory protection and not because he has perfected his title or because the plaintiff has lost title. Only thing is that statutory protection is a good defence, if he is able to establish adverse possession. So at best he only on the theory of adverse possession and limitation prescribe for a statutory possessory title as against the real owner/title holder. Because on that ground when a suit is dismissed we cannot say that the plaintiff has lost his title which he has established as such dismissal of suit is only because of statutory protection the defendant gets on establishing his adverse possession. Dismissal of suit will not and cannot clothe the defendant with title over the property. The effect or result may be a deemed possessory title or a statutory possessory title. It may be noted that S.27 Limitation Act does not refer to or confer any right or title which the adverse possessor gained because of statutory protection. S.27 only holds that the right to recover possession for the property is lost and not what the plaintiff thereby loses his existing title as stated above.

On the whole I am firmly of opinion that in both cases discussed above only possession is protected under the provisions of the statutes and hence there is no difference in the possession in the two cases. Adverse possessor has no better right or title than the other who holds possession under an agreement of sale.

As regards the issue to be framed in such suits for recovery of possession on the strength of title, instead of the issue usually framed as to whether the defendant has perfected his title by adverse possession and limitation it ought to be as to whether the defendant is entitled to statutory protection under Art.65 r/w S.27 of the Limitation Act and a finding has to be recorded on that aspect by the court. The so called age old theory of perfection of title by adverse possession and limitation is not only a correct one but it s wrong too in the light of the language in S.27. Most probably this theory is developed in India by following the decision in Perrycase which holds that the adverse possessor has good title. That is a statement of law in the absence of a statute relating to the effect of adverse possession. But we have a statute and hence one has to follow that.