Tuesday, August 02, 2016

A tricky debate on abortion

A tricky debate on abortion: Recently, in a case before the Supreme Court, a woman . There is an outcry for change in law for easy availability of the option to abort without court intervention. Does it discard patient autonomy

A tricky debate on abortion


Sunday, July 03, 2016

Hello, do you hear me?

This is no Adele's music! A promise is being redeemed. Watch this space for resumption of posts!
Certain things are changed. The contents of this blog are not going to be non-judgmental. It is time for critical appraisals and taking positions on several vital legal issues. The title of the blog page is therefore changed.
Get set.

Friday, September 11, 2009

To Blog; or not to blog!

The captioned question is in some way in the same league as Hamlet's existential dilemma of 'To be, or not to be; that is the question';…To suffer in the mind, 'the slings and arrows of outrageous fortune', answers the 'to be' query; or 'take arms against a sea of troubles by opposing them, to die; to sleep' would resolve the 'not to be' choice.

A sitting judge does not speak otherwise through his judgments. He shall not take positions in the public domain on any issue that is likely to come before him in court that may ultimately compromise on his impartiality.

Do not judges make public speeches or attend seminars, express their views and enter into debates? Do they not write articles in print media on legal issues? Public speeches pale into thin air. If they are captured in human ears, they shall be but stored in forgetful memory. If they get into print, they shall be trashed by passage of time. If they are recorded in magnetic tapes or digitized, they shall likewise be consumed to oblivion in due course. In any event, they shall not cause ripples beyond the immediate vicinity of persons who happen to hear the judges speak or read and forget what they read.

Posting a material in the web carries a certain aura of invincibility, a powerful permanence and an inevitable global presence. So long as this blog was read only in a few homes by the compulsive surfers who may have chanced to land on this web page, all seemed well. Suddenly things have changed for the better or the worse.

There is a person who asks me whether any mother would feel comfortable about bringing a case seeking for custody, if anyone knew my alleged 'gender bias'? There is another person who wants a legal advice. There is another person who wants to post his comment that contains a personal innuendo against a celebrity. I may keep the debate open ended and not take positions; not get judgmental, but even if one person doubts my impartiality, I would have done the institution of judiciary incalculable harm. I have sworn to upholding the constitutional values and I shall not be seen to swerve an inch from my oath of office.

Not on one occasion have I used first person singular in all my posts. I meant to be impersonal about the contents expressed, but I realize, some may even suspect that there is a deceit in the tenor. Sentences could be constructed in passive voice, but still I may have unwittingly employed my personal predilections. Time has come to wind up. What I had written as a last piece bidding good bye to my weekly edits in the law journal that I was editing when I was still a lawyer, seems relevant here, with some minor modifications.

Gilda Radner, an Emmy Award winner and an American Comedienne, who died at 42 with ovarian cancer said, "I wanted a perfect ending. Now I've learned, the hard way, that some poems don't rhyme, and some stories don't have a clear beginning, middle, and end. Life is about not knowing, having to change, taking the moment and making the best of it, without knowing what's going to happen next." I do not know where I have arrived; where I have led you or if I have led you anywhere at all. My tryst with my blogs is over. Some readers have asked me, if there is any other judge in the whole world who blogs. There is also incidentally a reminder that somewhere, the propriety is breached. I began all this when I was an editor of a law journal, continued with it, as a shy bride would walk to the marriage pandal. Now I hang up my boots. I went through with it, with good intentions to constantly kindle your interest to stay put with what is happening in the legal world.

Am I glad, it is all over?


Am I sad that it is over now?


What is good in a goodbye, if it is not a first-rate experience? As Carol Sobieski and Thomas Meehan say in Annie, a Hollywood Musical, 'How lucky I am to have something that makes saying goodbye so hard!'

'A goodbye isn't painful unless you're never going to say hello again'. I will move over to other tasks and come back again someday to say, Hello!

Wednesday, August 26, 2009

Abortion for the mentally retarded – the outer limit of patient autonomy

On 17.7.2009, a Division Bench of the Punjab & Haryana High Court, comprising of Justice Surya Kant and Augustine George Masih decided a case ordering the termination of the pregnancy of a rape victim, who was mentally retarded person and an orphan at that, staying in a Government Care Home. The judgment is like it has never come in any part of the world. A poignant tale of a girl discarded on road, picked up to be brought up in government run homes. Her mental retardation and inability to protect herself adequately, heightened her vulnerability to be repeatedly raped allegedly by male guards employed at the Home, aided as they were, by an Ayah for money to be ravished in the bathrooms.

The law distinguishes between mentally ill people from a mentally retarded person. The guardian procedures are consequently different: in the former, it would be the Mental Health Act and in the latter, it is the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The National Trust Act establishes a Central Committee at Delhi and Local Committees in every district. The Committees shall have the power to appoint guardians for a mentally retarded person.

The Medical Termination of Pregnancy Act empowers a medical practitioner to terminate pregnancy of a woman whose length of pregnancy is not more than 12 weeks. If the pregnancy is more than 12 weeks and less than 20 weeks, the decision shall be at least by two medical practitioners. In both situations, the MTP could be undertaken, only (i) if the continuance of pregnancy would involve to the life of the pregnant woman or of grave injury to her physical or mental health. Where the pregnancy occurs by rape or a failure of any device or method used by a married woman or her husband for the purpose of limiting the number of children, it may be presumed that there is a grave injury to the mental health, or (ii) there is substantial risk that the child, if allowed to be born, may suffer from physical or mental abnormalities as to be seriously handicapped. No MTP carried out without the consent of the woman and if she is less than 18 years of age or a mentally ill person, without the consent of the guardian. In this case, since the woman was a mentally retarded person (and not mentally ill) and there was no local committee constituted under the National Trust Act, the Chandigarh Administration that was running the Institution where the woman was residing applied to the Court for the termination of pregnancy.

The Court assumed jurisdiction as a patria perens for deciding the question of desirability of MTP. It passed an interim order on 9.6.2009, containing inter alia, direction for constitution of an expert body of doctors for examining the pregnant woman (the Court used only the term 'victim' for the pregnant woman) and report on 13 points that included, the issue of consent of the mentally retarded person, any risk or complications relating to pregnancy and child birth and the most prudent course to be followed in the best interest of the victim. The report was a heart-wrenching record of what the mental condition of the victim, her desire to retain the fetus and deliver the child, the changes occurring to her over a period of time of constant crying, denial of entertainment such as TV viewing, which she was previously accustomed to and her inability to comprehend issues of parenting. Read what the doctor/ psychologist had to say about her:

She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succor and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the "bhaiya") (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reflected by her anguish at a preferred suit (salwar and kameez) being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof.

The judgment records the victim's point of view, as proffered by the counsel appointed to assist court in the following words: The learned amicus took us through a fine literary odyssey to impress upon us that in her lost world, the victim has now got a ray of hope of having someone as her own and it would be exhibiting gruesome cruelty to deprive her of what she now cherishes to come out of her and make her life meaningful. Besides asserting the right of self-determination for persons with intellectual disabilities, the learned amicus-curiae also relied upon two Division Bench decisions of Madras and Kerala High Courts in the cases of [i] V. Krishanan vs.G. Rajan @ Madipu Rajan and others, (a case where a minor girl alleged to be 16 had been married without the consent of her parents and when the parents of the girl wanted to terminate the pregnancy, the girl and her 'husband' wanted the continuation of the pregnancy and the Court denied permission to abort and upheld the desire of the girl to carry her pregnancy to full term and deliver the child) and (ii) Mrs. Usha Abraham v. Abraham Jacob (a case where a husband sought for divorce on the ground that the wife was mentally ill, but the court refused reasoning that the woman was only slightly mentally retarded and hence she could perform her marital ob ligations).

The Division Bench posed to themselves the question 'Should we not permit the petitioner - Administration to medically terminate the victim's pregnancy solely on the ground that the victim wants to keep the child as she likes children or should we adopt a holistic approach after taking into consideration several other factors which have a direct bearing on the future of the victim as well as of the foetus in her womb ?' The court examined the physical conditions of the mother ( she had abnormalities of gait and spinal deformity), the mental capacity of the mother ( she had a mental growth of 7 - 8 year old child, with little communication skills of social behaviour) , the report of the social worker who opined that the victim believed a child to a toy that one can play with, the social conditions and surrounding environment, where the girl had been abandoned by her own parents and brought up in shelter homes her 100% financial dependence with no employable skills than carrying out simple orders like clearing a table, dusting under supervision, pealing vegetables and above all, nil family support.

The Bench concluded, 'we find that except her physical ability, the victim is neither intellectually nor on social, personal, financial or family fronts, is able to bear and raise a child. We are satisfied with the reports of the Experts that the victim is incapable of understanding the concept of motherhood or of pregnancy or pre and post delivery implications. The victim, notwithstanding her innocent emotional expressions, is not mentally in a position to bear and raise the child. Asking her to continue with the pregnancy and thereafter raise the child would be a travesty of justice and a permanent addition to her miseries. The "toy" with which she wants to play, would want her to invest hugely which she is incapable of…

We also cannot over-look the fact that if allowed to be born, the child's own life, grooming and future prospects may itself be highly disappointing. There would be no choice but to keep the child in Ashreya (the government home) where the victim is living, in the company of other mentally ill inmates. There shall, thus, be a consistent risk to the innocent life. His mother's own mental age being 7-8 years, the learning process of the child would be highly inadequate. The grooming and education of the child would again be at the mercy of the Government run/aided institutions whose dismal performance or the severely negligent behavioural attitude towards the inmates has already prompted us to issue various reformatory directions and to monitor their implementation in future. If born, the child would not only be deprived of the care and protection of a father, but, on account of the mental handicap of the victim, the mother also…"

Was there a doubt that with such persuasive reasoning, the conclusion could not have been to retain the fetus, but a direction to medically terminate the pregnancy? Like we said at the beginning, there has been no reported case of such complex situation, a woman made pregnant by rape, by an act, she did not understand as a sexual compulsion except that in the process, her best clothes were torn, a woman that is mentally retarded with a mental maturity of a 7 year old girl, a woman that does not have her own family, having been discarded on road and picked up to be brought in a government run welfare home that paradoxically subverted her welfare. Now, the interesting twist is that the Supreme Court reversed this decision and the victim continues to have the child growing in her womb. It is a significant victory for pro-life campaigners. The case for pro-life has powerful arguments, which we will discuss, after the Supreme Court gives its reasoned decision. Even by a reversal of the decision of this case by the Supreme Court, the strength of the logic expounded in the judgment of P & H High Court is not a wee-bit dimmed. It shows a beautiful course of judicial opinions: there is always the other side of the coin and a better wisdom of a higher court!

Now the woman will hopefully (& prayerfully from our part) deliver the child and get her own 'toy' that she bears in rueful pain and expectant ecstasy.

Sunday, August 09, 2009

Litigations after death

Bury the body or cremate it, whatever way you may want, it may be yet a matter of personal preference, but normally, the religion that the person was born to, dictates the choice. The integrity of the body is always desired, as it goes up in flames or allowed to putrefy. Any internal organs that are harvested after death and before delivery to relatives may leave no trace in the external appearance of the human frame. For the same reason, when the eyeballs are removed from the dead person, it is considered ethical that the sockets are stuffed and the eyelids are made to look normal. Even a mutilated body by accident or bomb blast are pieced together and stitched up before it is buried or cremated. When Michael Jackson’s brain was redelivered to the relatives after clinical examination for the criminal case that has been registered and for finding the cause of death, the brain was surgically re-fixed within the skull. Now that the body is fully integrated, the burial, it is expected, may take place soon.

Statutory laws and cases associated with dead bodies and removal of organs, after death, are rather weird. The Anatomy Act, 1949 sets out procedure in India for authority for removal of organs from dead bodies or dead bodies themselves for therapeutic, research or criminal investigations. In the case of a dead body lying in a hospital or prison and not claimed by any of the near relatives of the deceased person within forty-eight hours from the time of the death of the concerned person, the authority for the removal of any human organ from the dead body which so remains unclaimed may be given by the person in charge, for the time being, of the management or control of the hospital or prison, or by an employee of such hospital or prison authorised in this behalf by the person in charge of the management or control thereof. No authority shall be given if the person empowered to give such authority has reason to believe that any near relative of the deceased person is likely to claim the dead body even though such near relative has not come forward to claim the body. Can a person insist that the Hospital shall take his body after his death? In K. Uma Mahesh v The State of Tamil Nadu, rep. by its Secretary to Government, Health and Family Welfare Dept. Fort St. George, Ms. 9 and 2 others (1998), there was a challenge to the provisions of the Anatomy Act itself on the ground that there was no provision for acceptance of the body, except those that were unclaimed. Without testing the validity of the Act itself, the Madras Court said that the desire of the petitioner was commendable and directed the Director, Institute of Anatomy to accept the body if the same was intimated and the body had been brought without losing much time after death.

Does a person have a right to protect any part of the body of his or her spouse before death? In Smt. Sumakiran Mallena v The Secretary, Medical and Health and others (2008), the wife of the donor filed a writ petition challenging the decision of her husband to donate a portion of the liver to his father who was reportedly suffering from decomposed cirrhosis of liver, - a HCV related incurable liver function. The court rejected the petition as not maintainable, holding that no legal right existed for the wife to prevent her husband’s decision. The court pointed out that the case had been filed on two wrong presumptions that (i) her husband’s affection towards his parents should be subservient to the marital relationship between him and the petitioner, and (ii) that he cannot donate his organs with her consent. On both counts, the court found against the petitioner.

In Madhu Vijayan and another v S.G.Ravishankar (2006) the dispute was for custody of the ashes between the wife and son of the deceased O.V.Vijayan ( a renowned author and story teller) on the one hand and the nephew of the deceased on the other who had performed the obsequies. The Court said there was no property in the ashes but resolved the controversy between parties by allowing the legal heirs to offer prayers with the ashes kept in the custody of the nephew and that the ashes could be jointly immersed at Hardwar by both the litigating parties, a ceremony that was completed nearly a year after the death.

The foreign jurisdiction in U.K. and U.S.A.have had their share of interesting cases as well. In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor. Re Organ Retention Group Litigation(2004) is authority for the proposition that if autopsy is conducted with consent, the removal of organs for the purpose of lab tests and report is implicit and no action will lie for damages for removal of organs. The U.S courts have always recognized the rights of next of kin of a deceased person a right to possession of the dead body for decent burial or cremation but not a right to the body as if it were property. To provide California non-profit eye banks with an adequate supply of corneal tissue, Cal. Gov't Code § 27491.47(a) authorized the coroner to remove and release or authorize the removal and release of corneal eye tissue from a body within the coroner's custody without any effort to notify and obtain the consent of next of kin if the coroner has no knowledge of objection to the removal. The law also provided that the coroner or any person acting upon his or her request shall not incur civil liability for such removal in an action brought by any person who did not object prior to the removal nor be subject to criminal prosecution, Cal. Gov't Code § 27491.47(b). In Robert Newman, as father and next of kin of Richard A. Newman and Others v L. Sathyavaglswaran, M.D., in his official capacity as Chief Medical Examiner-Coroner Of The County Of Los Angeles(2002) , the parents, whose deceased children's corneas were removed by the Los Angeles County Coroner's office without notice or consent brought a suit challenging the removal. The court of appeals concluded that the longstanding recognition in the law of California, paralleled by national common law, that next of kin have the exclusive right to possess the bodies of their deceased family members created a property interest, the deprivation of which must be accorded due process of law under U.S. Const. amend. XIV. The court ruled that parents have property interests in the corneas of their deceased children protected by the Due Process Clause of U.S.

Litigations just do not last merely a life time. In death as in life, will litigations thrive!

Sunday, July 12, 2009

Homosexuality - Relevance of religious or cultural views

High Court judgment de-criminalises homosexuality

Law is what is legislated; law is also what the courts declare. In the constitutional scheme, the Union and the States have distinct spheres of legislative competence, while some subjects of legislative power of the Union and the States may also overlap. The validity of legislation may be tested on the question of power to legislate on a particular subject or whether it conflicts with any right guaranteed under the constitution. In recent history, no judgment of a Court has generated as much interest ( and therefore controversy as well) as the judgment of the Delhi High Court striking down a portion of the Section 377 IPC that criminalizes consensual sexual practices between adults of the same sex as violating the fundamental tenets of equality, privacy and right to life.

The forensic course in the judgment

The judgment traces the penal provision to owe its origin to Judeo-Christian moral and ethical standards (IPC was drafted by Lord Macaulay and introduced in 1861), and while the English law was reformed by Sexual Offences Act, 1967, de-criminalising homosexuality, the law has stayed in statue book in India. The government of India spoke through two voices: the Ministry of Home Affairs sought to justify the retention of section 377, where as the Ministry of Health Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts. Ideas of personal liberty, right to privacy, social morality and decency are dynamic concepts that change with times and the legal regimes that respect individual liberty have changed their laws either through pro-active legislation or through judgments striking down such discriminatory laws. Lesbian, Gay, Bi-sexual and Tran-sexual (LGBT) propensities are but emotions of a minority and protection of minority rights is the new paradigm to understanding concepts of equality and non-discrimination.

Why the existing law is said to be wrong

The judgment expatiates that even if the penal provisions are not enforced (the CJI is reported to have remarked that he had not come by any instance of a case filed against consenting adults for practices of homosexuality in his long judicial career) they reduce gay men and women as “unapprehended felons”. The judgment records the contention that a law that proscribes homosexuality to be wrong in legal principle because they exceed the proper ambit and function of the criminal law in a modern society; wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change. In this respect they are like other laws of colonial times that disadvantage people on the ground of their race or sex; wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality; and wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS.

How it conflicts with constitutional morality

In any way, the judgment states, the legislative object of protecting women and children has no bearing in regard to consensual sexual acts between adults in private. Section 377 IPC is facially neutral and it apparently targets not identities, but in its operation it does end up unfairly targeting a particular community. Sexual orientation is analogous to sex and discrimination on the basis of sexual orientation is not permitted by the fundamental rights protected under Articles 14 (equality), 15 (discrimination on the ground of sex), 19 (fundamental freedom guaranteeing right to privacy) and 21 ( right to personal life and liberty). The judgment examines the diverse legal regimes across the globe and takes the whiff of opinions that is blowing around to be suffused in Indian Constitutional notions of equality, privacy, personal dignity and morality.

Objections that the judgment does not address

The objections have been on the basis that (i) the judgment is against Indian sense of morality, tradition and cultural values. In other words, west is west; east is east; (ii) It is against our religion: Hinduism, Islam, Christianity, Jainism and Buddhism proscribe such sexual practices as sins; (iii) Homosexuality is a disease. It can be cured. Legitimizing it is allowing an illness to permeate into our society and fester the healthy environment; (iv) Parental objections will see a new genre of runaway gay couples coming to police stations and courts seeking for protection of their lives and liberty. Surprisingly, the judgment that runs into 105 pages written with remarkable lucidity, verve and logical persuasiveness does not examine religious objections or what are perceived as against Indian culture. One may suspect that the omission is deliberate. The court had delivered the judgment on the strength of legal reasoning that is distanced from religion and dogma. The special leave petitions to Supreme Court, as reported through the press, have challenged the judgment only on the grounds that the judgment does not deal with.

Religious texts on homosexuality

Hindu religious texts focus on love and transcendental at that. Gopika’s love for Radha or of the cowherd boys at Vrindavan to Krishna, as depicted in Bhagvatam cannot simply be treated as vulgar. The focus here is entirely on love and there is no claim or suggestion about the degree of same-sex intimacy involved other than what is described. Many of the world’s great religions have pondered as to whether or not there is sex life in the spiritual world, but in Hinduism there is no debate. Swami Prabhupada, the founder of Hare Krishna movement would expound: ‘The pastimes of Krsna with the gopis clearly demonstrate that pure, unadulterated sex enjoyment exists in the transcendental realm.’ At lesser levels of human existence, sexual preferences between members of the same sex were immortalized in 10th century Khajraho’s friezes. This is not to suggest that they were widely prevalent. They perhaps reflect the view of a powerful, creative minority; and the expression of views of minority was respected. In Jainism, liberation from material existence is achieved through extreme bodily mortifications. Monks forswear all sexual contact; the laity may marry, but must remain faithful to their spouses. Jainism is so unsympathetic to sexual contacts that it is doubtful, if it approved of homosexuality (see Sutrakritangu 1.9.10, 10.13). Buddhism founded a generation later was less rigorous and struck a middle ground, in which liberation is achieved by casting away desires. Monks and nuns were to observe chastity and the religious texts do not seem to favour homosexuality, but as it evolved in their practices in China, Japan and some East Asian countries, homosexuality was tolerated. Both Islam and Christianity through their Books, Koran(7:80-82; 27:165-175; 27:55-58; 29:28-29; 4:15-16) and Bible (there are innumerable references and hence to state a few: Levitcus 18:22, 20:13; Deuteronomy 23:17) treat homosexuality as deadly sins.

Manusmriti refers to a homosexual as kliba. The references in the text are: causing an injury to a priest, smelling wine or things that are not be smelled, crookedness, and sexual union with a man are traditionally said to cause loss of caste (11.68); If a man has shed his semen in women born of the same womb as himself, with the wife of his friend or his son, with virgins or women of the lowest casted, he should carry out the vow for violating the guru’s marriage-bed (11.171); If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘Painful Heating’ vow (11.174). Kautalya’s Arthasastra states: Intercourse with a woman other than through the vagina is punishable (4.13.40); male homosexuality is punishable (4.13.40).

The debate will continue

It is irrefutable that religious texts are important sources of law and social practices. To that extent, law will follow religious prescriptions, but it is also true that zeal for reformation has taken the breadth of law to traverse beyond the confines of religion. The Hindu laws of succession, adoption, maintenance, guardianship, etc., have undergone several changes that will have no moorings with the customary Mitakshara or Dayabhaga laws. Again, except that Manusmriti has a historical value, no one is prepared to accept whatever Manu’s text states, as for instance, varnashrama dharma. Kautalya’s Arthasastra holds no more interest than how state craft was practiced in ancient India and it is doubtful if it has any contemporary relevance. Muslim personal laws have generally followed Koranic prescriptions and Hadith but criminal laws are same for all communities and punishments prescribed in Koran offer no guidance to the punishments prescribed under the Indian Penal laws for persons practicing Islam. Indeed, some of the Islamic countries have taken conscious decisions, even on the subject of homosexuality by not terming them as offences. The examples in Turkey, Jordan, Egypt and Mali are cases in point. Notwithstanding the strong biblical views on homosexuality, a host of countries that practice Christianity have changed their laws. The other opinions are, if homosexuality is a disease (many modern medical experts would disagree), why punish a sick person, if you do not punish persons having AIDS or cancer? Some may still ask ,if parental objections arise to same sex marriages, why apply a different yardstick, when law protects runaway couples seeking court’s help through police support to uphold freedom of choice and individual liberty? A judgment always does not change the course of history or annihilate deeply embedded prejudices. It only shows another way; another line of thinking. And, in Delhi High Court judgment, it finds its legitimacy from the Indian Constitution and not from religious texts.