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.

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.

All That’s in A Name :  A Review of Jigya Yadav v. C.B.S.E.

(By Karthika Sanjay, BBA., LL.B. (Hons.) 2019 - 2024,
Jindal Global Law School, Sonipat, Haryana)

Introduction

On June 3, 2021, the Hon’ble Supreme Court in a three-judge bench decision authored by Hon’ble Justice A.M. Khanwilkar inJigya Yadav v. C.B.S.E.¹settled the law relating to the Examination Byelaws of the Central Board of Secondary Education that restricted the quantitative and qualitative changes and corrections that could be made to certificates issued to students by the Board. The litany of 22 petitions that were considered before the Court in this case is symbolic of the numerous petitions filed by students, their parents and guardians across courts in the country, attempting to amend their credentials and details mentioned in the certificates issued by C.B.S.E. The judgement highlights the importance an individual’s name has to their identity, social and public interactions such as their contact with the law through property rights, and begins with the famous quote from Shakespeare’s Romeo and Juliet “What’s in a name? That which we call a rose by any other name would smell as sweet”². While this quotation might be construed a platitudinous reiteration, it effectively illuminates the highly intrinsic nature of names in our society. What one is called by becomes their identity and forms the foundation for the first of prejudices and understandings assigned to their identity by those perceiving them. When the name of an individual is so innate to their identity, should their autonomy and freedom to decide what they must be called by be overridden upon the specious grounds that a set of Examination Byelaws created by an entity such as the Board to regulate the process of altering a name in order to maintain compliant office records? This is exactly the seminal issue discussed and settled through this case.

THE COURT’S REASONING

The Court considered five major points to arrive at its decision. To start with, it examined whether the C.B.S.E. Examination Byelaws have the force of law since the Board performs an essential public function of the State in spite of being registered as an autonomous society under the Societies Registration Act, 1860. C.B.S.E. is the only body conducting examinations across the country created through a resolution of the Central Government. The Court found that for a body to be an instrumentality of State under Article 12 of the Constitution of India it: a) had to be an extension of collective benefit to public by a public authority, b) be a private body performing a public function regulated in a manner similar to a public authority, and c) should participate in social or economic affairs such as education. Following the application of these principles, it was concluded by the Court that C.B.S.E. was in fact a part of State, and the “law” including byelaws created by it under Article 13(3)(a) of the Constitution carried the force of law.

The second prong of the Court’s consideration was whether the byelaws of the C.B.S.E. imposes reasonable restrictions on the exercise of rights guaranteed under Article 19(1)(a) of the Constitution. The Supreme Court has time and again emphasised the importance and sanctity of an individual’s dignity through an abundant number of judgements.³A.M.Khanwilkar, J.J. speaking for the Court quoted Navtej Singh Johar ⁴to highlight the importance of natural identity;

“5. … Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. …”.

A person has the right to define his/her identity at any point of time and altering his/her name is constituent element of this freedom of expression of identity under Article 19 of the Constitution. The very nature of the Article reveals that this freedom is not unconditional nor an absolute right, and can be restricted reasonably to satisfy public policy interests and obviate confusion. The deciding question here becomes whether the Examination Byelaws constitute just and reasonable restrictions upon this freedom, made and maintained in the interest of the general public. According to the test of reasonableness, the impugned law must be drafted intelligently; crafted in a manner that it is able to justify the ultimate impact of the law on its subjects. The Board’s Examination Byelaws have been created with a very privileged and cisgendered underlying assumption that there would arise no legitimate situation that would warrant the change of a student’s name after the publication of examination results. It places a clear embargo on the right of a student to change their name after the publication of results without a prior court order and does so without taking into account the uncertainty of timeline required to obtain such an order. The Court also found that the overriding state interest expressed through the Board’s Byelaws to retain this stringency is nothing but its interest in efficiency of administration, which can in no situation be used to justify a nonperformance of essential function by an instrumentality of the State. It also noted that a more reasonable way to maintain this efficiency would be to restrict the number of times alterations could be made to the records and not set a total prohibition, making it virtually impossible to alter the records post the publication of results and issuance of certificates. Considering that the students who are filing petitions to alter their credentials stand to lose a lot more in their life and future due to inaccuracies in the certificates and are of a young and becoming age, while the Board is in a position of power with its sole cause of worry being loss of administrative efficiency, the balance of convenience would unequivocally tilt in favour of the students.

Thirdly, the Court considered whether the Board would be obliged to carry out changes or corrections in the documents due to the statutory presumption of genuineness attached to public records and documents, including those issued by it. It was held by the Court in a 2009 judgment that the records maintained by statutory authorities have the presumption of correctness in their favour and that they would prevail over any entry maintained in the school register.⁵With regards to whether the production of updated public documents could effect changes in the certificates issued by the Board, it was contended that there was no other practical and independent mechanism in place to verify the genuineness of these public documents submitted to C.B.S.E.as proof. Reference could also not be made to records maintained by schools due to validity and accountability concerns. Amendments made to certificates issued by the Board without an efficient and effective test of genuineness of submitted public documents would render the legitimacy and sanctity of the certificates issued by the Board questionable. The only workable mechanism around this limitation of C.B.S.E. as a body is to direct the students seeking to make changes in their documents through obtaining an order from the courts, who could allow or dismiss the claims based on necessity and genuineness.

The fourth point of consideration before the Courts was relating to whether the limitation period for corrections from the date of declaration of results to issue of certificate was reasonable and whether a change made within this limitation period would have retrospective implications. The Byelaws provide that the limitation period for corrections and changes to be made to the certificates issued by C.B.S.E. is between the date of declaration of results till the formal issuance of certificates, during which the students have access to the contents mentioned in the document and can request for changes to be made. Evidently, this limitation period prescribed in the Byelaws is heavily reliant on the dates of declaration and issuance of documents and it would become superfluous if the Byelaws in existence at the time of application of changes, post the formal limitation period, are held applicable. The Court also held that the changes made in the certificates issued by the Board are remedial in nature and only have a prospective effect, implying that it does not ipso facto warrant a retrospective effect.

Lastly, the Court examined whether it would be proper for High Courts to issue mandamus with regards to the correction of certificates in violation of the Board’s Byelaws without evaluating the validity of the Byelaws itself, and assessing the right of students to seek such a direction from the Court. While the primary condition for the issuance of mandamus is the existence of a legal right against a body which is either a part of State or constitutes its instrumentality, the Court observed that in majority of the litigation covering the issue at hand the question regarding whether the students approaching the constitutional courts had a legally enforceable right in their favour was unaddressed and overlooked. In the absence of inquiry into the legal right of students to approach the courts and the vires of the Byelaws, the judgements delivered by the constitutional courts should be seen as extraordinary remedies delivered due to extraordinary and deserving facts of the cases in exercise of its wide array of powers under Article 226. These sympathetic applications of fundamental rights need to address the circumstances that drew such a remedy and cannot be used as precedent. The Court by quoting the two-judge bench decision in Md. Sarifuz Zaman ⁶  conveyed its position that permitting changes to details mentioned in certificates must be done with extra caution and care to ensure that this remedy is not abused or applied arbitrarily. According to the Court, no two cases for change of names or dates of birth can be done with the same yardstick or “judicial eye”, especially when such a change may be prohibited by the Byelaws.

Further, the Court laid out an express distinction between “corrections” and “changes” that can be made to the documents. “Correction” here refers to alterations to be made in the issued certificate in consistence to the school records and C.B.S.E. was directed to ensure that a procedure for applying to make these corrections within reasonable regulations and limitation period is put in place. It may or may not grant permission to affect such a correction based on its discretion. However, in case the proposed “change” is on details that are inconsistent with those maintained in the school records, a request may be made through providing public documents like Birth Certificate, Aadhar Card etc. or due to an acquired name at a later point of time, which may not be supported by public documents. In the former, C.B.S.E. may entertain a request for change on the basis of the legal presumption of genuineness attached to public documents subject to reasonable conditions, and may insist on issuance of a Public Notice and publication in the Official Gazette according to the change in the new certificate. Since the latter is unsupported by both public documents and school records, the Court expounds that the Board may insist for prior permission or declaration made through a Court of law to that effect and its publication in the Official Gazette, along with the surrender of the original certificate issued by the Board and payment of prescribed fees.

A PEEK INTO SOCIETAL IMPLICATIONS 

Exclusionary impact on transgender persons

The latter method of changing one’s name through obtaining a prior declaration from the courts of law would have a disproportionate and exclusionary impact on the members of the transgender community. While transgender was legally recognized as the third gender by the Supreme Court in 2014,⁷the derivative rights required to ensure a fulfilling, secure, safe, healthy and equal life for persons self-identifying as transgender are not fully guaranteed and available to them. The transgender community remains one that is heavily policed by the state and society, resulting in systemic exclusion, erasure, violence inflicted upon them and unequal employment opportunities. Any analysis of this judgement without considering the impacts it may have on the transgender and non-binary community would be incomplete as it would have a stricter and more systemically violent impact on the limited opportunities available to them in employment and education. This would serve as an embargo, gatekeeping them from securing employment in the formal sector with sufficient job security and financial stability, and force them to continue working in the traditional and highly dangerous means of livelihood including prostitution and begging.

Potential for assuming an anti-caste position

It is paramount to realise the power that names and identities hold in a caste-based society like India.  Due to the prevalence of a tradition of adding caste names to the names of individuals belonging to different castes and sects, naming and guidelines directing the name-changing process hold enormous power to accelerate social justice and can assume an anti-caste position. Historically, names have been used by savarna persons to maintain their caste-based social capital and demean Dalit persons and community by assigning them undignified names ⁸. Using names with caste suffixes to hoard employment opportunities within one’s community, and exclude Dalit persons and other religious minorities are still prevalently used by savarna persons who still control majority of the means of production and consequently, employment opportunities. While provisions preventing citizens from altering their original names to ones with caste-based suffixes or other names that may be perceived generally as offensive and derogatory names socially would not annihilate the deeply entrenched caste system and other divisive prejudices, it may serve as a positive step towards achieving social justice and equality.

IV. CONCLUSION

Names form such an integral and essential part of any subject’s identity in our society. It enables them and dictates the manner in which they will be interacted with in social and public interactions. While a person may wish to alter their names in exercise of whimsical privilege and their autonomy to do so, it becomes very important to study the politics of names within the society and persons it empowers and excludes. Transferring the power to create guidelines regarding changing of names to the State remains both democratic and arbitrary.  When an instrumentality of State creates guidelines with an underlying intention of exclusion and prohibition to the exercise of the freedom of expression through one’s name, it becomes arbitrary. Imposing such restrictions and hurdles in the process of altering one’s name and in extension, their identity, in the manner exhibited by CBSE in this case for obviating confusion, ensuring clarity in public documents and maintaining administrative efficiency in an increasingly connected world with recorded biometrics and digital records of identity of a person seems like a futile and armed effort to ensure more state control over an individual’s liberties.

Foot Notes

1. 2021 (3) KLT 711 (SC).

2. Romeo and Juliet. Act II. Scene II. William Shakespeare. 1914. The Oxford Shakespeare.
Accessed July 25, 2021. https://www.bartleby.com/70/3822.html.

3. National Legal Services Authority v. Union of India and Ors.(2014 (2) KLT 378 (SC) =
(2014) 5 SCC 438); Navtej Singh Johar and Ors. v. Union of India through Secretary, Ministry of Law and Justice(2018 (4) KLT 1 (SC) = (2018) 10 SCC 1) and K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1.

4. Navtej Singh Johar(supra).

5. CIDCO v. Vasudha Goraknath Mandevlekar (2009 (3) KLT Suppl.398 (SC) = (2009) 7 SCC 283). 

6. Board of Secondary Education of Assam v. Md. Sarifuz Zaman(2003 (3) KLT OnLine 1256 (SC) = (2003) 12 SCC 408.

7.    National Legal Services Authority (NALSA) v. Union of India(2014 (2) KLT 378 (SC) =
AIR 2014 SC 1863).

8.  Sarveswar, Sipoy. “‘Karnan’: How Caste Politics, Social Movements Influence Names.” The News Minute, May 28, 2021. https://www.thenewsminute.com/article/karnan-how-caste-politics-social-movements-influence-names-149672.

Examining the Unconstitutionality of the Kerala Lok Ayukta Act, 1999

(By T.P. Abdul Jabbar, Advocate, Tirur, Malappuram)

It is the sign of a matured democracy to be having zero corruption and optical transparency from the lowest body to the highest body. To fulfill that, we do need necessary checks and balances. The Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) has been passed by the Kerala Legislative assembly in this regard. The Lok Ayukta under the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) has been constituted for investigating into the allegations of corruption and mal-administration against public servants and for the speedy redressal of grievances of the public.

Nonetheless, it is conspicuous that some of the sections of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) is unconstitutional. This is a humble attempt to examine the unconstitutional character of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) for a fruitful debate in the legal fraternity.

To point out the unconstitutional character of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999), there shall be unequivocal sections which override the constitution. Especially, Section 14 of the said act violates the constitutional powers and prerogatives of the governor and the Chief Minister of the state. Article 164(1) of the constitution states that:

The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.

In fact, Articles 164(1B) and 164(4) categorically defines a Minister’s Constitutional disqualification. So, if a minister comes under the purview of Article 164(1B) and 164(4) they shall cease to be a minister even the Governor is having pleasure over him.

Under writ jurisdiction, Supreme Court and High Court can issue respective writs to oust the Chief Minister or any other Ministers. In such Circumstances, the minister shall vacate the office as per the constitution. So, the Constitution clearly says that in which circumstances a person ceases to be a minister even if he holds the pleasure of the Governor. All other Provisions which are inconsistent with the constitution is invalid and unconstitutional so long as the constitution is amended to that extent.

Kerala Lok Ayukta Act, 1999 Section 14 states that:

Public Servant to vacate office if directed by Lok Ayukta etc.-

(1) Where, after investigation into a compliant, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and 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 his report under sub-section (3) of Section 12. Where the competent authority is the Governor, the Government of Kerala or the Chief Minister, he or it shall accept the declaration. In other cases, the competent authority concerned shall send a copy of such report to the Government, which shall accept the declaration.

(2) When the declaration so made is accepted the fact of such acceptance shall immediately be intimated by registered post, by the Governor, the Government or the Chief Minister, if any of them is the competent authority and the Government, in other cases and then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or deemed acceptance of the declaration-

(i) if he is the Chief Minister or a Minister, resign his office of Chief Minister or Minister, as the case may be;

So, in effect the aforementioned section gives tantamount power to a quasi-judicial body for issuing direction to the Governor and the Chief Minister to oust a Minister even if the Governor possesses pleasure over the Minister which is a clear contradiction to the Article 164 of the constitution.

Hitherto, the power given to an authority which holds a right to pronounce unappealable orders is indeed unconstitutional. In this regard, Blackstone has rightly observed that “if all the powers were given to one man, there was an end of personal liberty”. To vindicate someone’s innocence, he shall be given the right to appeal till the apex court. Otherwise, we do need to say that his natural justice is curtailed. No body shall be given supreme powers except the Supreme Court. To conclude, as Lord Acton says, “Power corrupts, and absolute power corrupts absolutely.”