Saturday, December 13, 2008

Euthanasia, the death-shot

Life and death are no longer in the realm of only god’s activity. Or, at least, so it seems. Medical science, through In virto fertilization (IVF procedures) brings to reality certain aspects of human procreation hitherto not known to be possible. Again, when a person shall die may even be decided by a suave physician; he may deliver a death shot at a chosen time, without being charged with the offence of murder. Euthanasia is its name. But euthanasia is not legal yet in India. It may soon be, if global trends are any indication. Indian Medical Council (Professional Conduct, and Ethics) Regulations with regard to professional conduct, etiquette and ethics notified in 2002 also declares expressly euthanasia to be unethical conduct. However, the Regulation allows withdrawing life-supporting devices to a patient which shall be decided only by a team of doctors and not merely by the treating physician. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.

Assisted suicide in its diverse forms - General
Suicide is an act of criminal self-destruction. While it is not possible to punish a dead person for what he did, if he survived the attempt, he could be proceeded with legally under regimes that make an attempt at suicide an offence. The Indian Penal Code contains detailed provisions about when attempt to suicide is punishable, when abetment to suicide constitutes culpable homicide (a lesser form than murder) and when even the husband or certain classes of relatives could be said to committed acts of cruelty, when a woman after marriage commits suicide. We are however concerned to issues of assisted suicide in the context of medical intervention. Euthanasia is assisted suicide and something more. The mild variations are treated along the following lines:
(i) Passive Assistance, occurs when a health care provider does nothing to prevent a patient's choice not to seek medical intervention during terminally ill state.
(ii) Facilitation of Suicide is a second circumstance in the health care context, which occurs when the health care provider renders peripheral aid to the victim. Facilitation of suicide can be distinguished from other types of assistance, in that the health care provider's aid only amounts to minimal supportive behavior. Encouraging an individual to commit suicide, for example, is illegal.
(iii) Another type of assisted suicide occurs when the health care provider supplies the means for committing suicide. Most cases do not involve malicious acts but involve ailing victims who have determined that their existence is meaningless and intolerable. Some physicians assist patients who request [suicide assistance], either by prescribing sleeping pills with knowledge of their intended use or by discussing the required doses and methods of administration with the patient.
(iv) The last type of assisted suicide occurs when the health care provider actively participates in the act of suicide.

Euthanasia, active and passive
Assisting patients with suicide comes close to performing an act of euthanasia. Active euthanasia generally involves the administration of some agent or procedure which the physician believes is warranted to end the patient's life.
Passive euthanasia consists of permitting a patient to die by withholding life-sustaining treatment. Passive euthanasia may take many forms. McKay v. Bergsted (1990) was a case in Nevada, U.S.A, where the patient, who had been dependent on a respirator for twenty-one years but who could read, watch television and occasionally enjoy wheel chair ambulation, despaired at the prospect of his father’s natural death due to old age (His father was nursing the ailing son all along). The court allowed him to discontinue treatment. The court distinguished the plaintiff's case from that of a suicidal adult by stating, "Unlike a person bent on suicide, the plaintiff sought no affirmative measures to terminate his life; he desired only to eliminate the artificial barriers standing between him and the natural processes of life and death that would otherwise ensue with someone in his physical condition."
In the Netherlands, nearly 10,000 people die by euthanasia every year at the hands of cooperative physicians. The Netherlands has developed criteria that must be met for an act of euthanasia to be considered medically and ethically acceptable. First, the patient's medical situation must be intolerable, with no prospect for improvement. Second, the patient must be rational and must voluntarily and repeatedly request euthanasia of the physician. Third, the patient must be fully informed of the procedures and consequences. Lastly, there must be no other means of relieving the suffering, and two physicians must concur with the request. Although most physicians do not openly embrace the Dutch position, the silent practice of passive and active euthanasia will continue in the health care delivery system. Whatever attitudes society may develop toward assisted suicide or euthanasia, individual physicians will decide for themselves whether to provide suicide assistance or practice euthanasia.

The old justifications
There are again no universally accepted norms to justify it. On the contrary, the opinion that euthanasia is morally permissible is traceable to Socrates, Plato, and the Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to contravene the prohibition of murder in the Ten Commandments. The organized movement for legalization of euthanasia commenced in England in 1935, when C. Killick Millard founded the Voluntary Euthanasia Legalisation Society (later called the
Euthanasia Society). The society's bill was defeated in the House of Lords in 1936, as was a motion on the same subject in the House of Lords in 1950. In the United States the Euthanasia Society of America was founded in 1938. The first countries to legalize euthanasia were the Netherlands in 2001 and Belgium in 2002. In 1997 Oregon became the first state in the United States to decriminalize physician-assisted suicide through the Death with Dignity Act. Opponents of the controversial law had it overturned by court process. State of Washington's ban on assisted suicide(1994), was challenged as violative of the U.S. Constitution Amendment XIV on assisted suicide. The US Supreme Court however held in Washington v Harold Glucksberg (1997) that the Act was prima facie rationally related to a legitimate government interest and did not violate the Due Process Clause of the Fourteenth Amendment. The court reasoned that State legislation sought to preserve human life and also uphold the integrity and ethics of the medical profession. Additionally, Washington's statute sought to protect vulnerable groups, such as the poor, elderly, and disabled from abuse, neglect, and mistakes. Finally, the Court held that Washington's ban on assisted-suicide effectively prevented a broader license to voluntary or involuntary euthanasia.

Limitation to the sanctity of life principle
A competent patient cannot be compelled to undergo life saving treatment. In Airedale NHS Trust v Bland [1993], a case decided in U.K, Tony Bland's awful predicament had been widely reported. He was a young supporter of Liverpool Football Club who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. The hospital applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. That declaration was granted. Under the double effect principle, medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death. This principle entails a distinction between foreseeing an outcome and intending it. The case of Bland involved a further step of the House of Lords holding that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die. These are at present the only inroads on the sanctity of life principle in English law. The Dutch courts, relying on the principle of "noodtoestand" (necessity), relaxed the prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor's respect for life and his duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical opinion. It is important to note that this line of decisions is not based on the European Convention. The Parliament of the Netherlands has enacted a statute, viz the Termination of Life for Request and Assisted Suicide (Review Procedures) Act 2001, which formalises a relaxation of the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical supervision. However, the UN Human Rights Committee in a report dated 27 August 2001 expressed serious concerns about the operation of the system.

The unending, inconclusive debate
The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The opposing views within the disability community on the issue of assisted suicide share a common ground—a recognition of the danger of discrimination to the interests and fair treatment of people with disabilities. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless.
We are prepared to wink at medical interventions such as that which assists birth to take place to a woman in Haryana well past her 70, after menopause (TOI, 8th Dec 2008). A transsexual, Beatie at Los Angeles who underwent a sex change surgery from female to male retained his/her ovaries, lived like a man outwardly and begot a child (TOI, 5th Jul 208). If you say that in birth lies happiness and hence such medical interventions against nature is possible, there are some who suggest that in death dies freedom from suffering. Hear Donne say: Death be not proud, though some have called thee/ Mighty and dreadful, for, thou art not so/…/One short sleepe past, wee wake eternally/ And death shall be no more; death, thou shalt die.

Tuesday, December 02, 2008

Magic remedies and Indian law

A public interest litigation in Punjab & Haryana High Court is reported to have been filed ‘to curb the menace of tantriks promising magical cures within minutes’ through advertisements in newspapers, television channels and even web sites (The Tribune dated 19th Nov ’08). Are there laws that regulate or prohibit such advertisements? Do such types of objectionable advertisements abound elsewhere outside India?

The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.

It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act. A person made an advertisement under the following terms:

New Life, New vigour, New Spirit, New Wave. If you want a cure, see to-day well known world-famous experienced registered Physician. Special diseases such as oldness in youth, all sorts of defects in nerves, or weakness, laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently.

Supreme court held in Zaffar Mohammad alias Z.M. Sarkar v The State of West Bengal (1976) that the advertiser was liable for conviction. No person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for (a) the procurement of miscarriage in women or prevention of conception in women; or (b) the maintenance or improvements of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition in a wide classes of diseases that include cancer, sterility in women, leukoderma and leprosy. A person guilty of the act prohibited shall be punishable after a trial by a Magistrate of First Class (a) in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or with both; (b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.

The most popular advertisements for cosmetic surgery are posted in popular websites through internet. They offer privacy of one’s own reading room from where the access to medical information may be picked up through a personal computer. Internet auction sites abound with revolting, weird advertisement for sale of human organs that range between testicles to nude autopsy photos of murdered children (Business Week E.Biz, Nov. 20, 2000). Shocking medical items that have been sold or at least offered for bidding on eBay include organs available for transplanting, drug-free urine, and a male testicle. In one instance, a seller offered a "fully functional kidney for sale" on eBay. (The Top Ten Bizarre Online Auctions .) Bidding on the kidney went as high as $ 5.7 million before officials at eBay shut down the auction. Another website auctioned off the ova and sperm of fashion models available for in vitro fertilization, boasted the auction as "Darwin's Natural Selection at its very best," started the bidding at $ 15,000 and received a twenty percent service fee for the sale of the reproductive cells (Telegraph Herald, Oct. 24, 1999, discussing the website

Though much less widespread than medical information or medical advice websites, several websites have auctioned different types of surgeries. For example, the largest private hospital group in South Africa, Netcare, has auctioned off surgeries such as breast reductions, skin resurfacing and liposuctions, where the "winner" received a recovery stay at a plush Johannesburg hotel (The auction was conducted on Wellesley College even auctioned off a vasectomy as part of a fundraiser (The Washington Times, Aug. 4, 2000).
The Supreme Court of the United States has held that any governmental attempts to regulate or prohibit information posted on websites that is not defamatory may violate constitutional free speech protections (Reno v. ACLU, 117 S. Ct. 2329 (1997)), and the Communications Decency Act immunizes from liability websites that merely host or sponsor information provided by others. But in India, with The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 in place, it shall be possible to proscribe and take penal action against objectionable advertisements that guarantee magic remedies. But how many know that such an enactment exists?

Surrogacy, the new Indian scene

Times of India, dated 18th November 2008 reports that an Israeli gay couple Yonatan and Omer Gher had a child, which they named as Evyatar meaning ‘more fathers’ in Hebrew, through a surrogate mother at a fertility clinic at Bandra, Mumbai. Thankfully, the child found itself soon after its arrival the felicity of being cradled in the hands of two fathers but Baby Manji Yamada delivered at Anand, Gujarat few months earlier was not as lucky initially. The surrogate mother had abandoned the child at the hospital, the Japanese couple that hired the surrogate mother divorced and the grandmother flew in to India to take the child for her son after a delay of few months when the Supreme Court cleared the decks for its transportation to Japan, however on an Indian passport.

Surrogacy is normally referred in the context of a married couple (i) who have had multiple miscarriages; or (ii) who have failed repeated IVF attempts for unexplained reasons, seeking the help of a willing woman to bear the child. It is never an issue of convenience of woman unwilling to bear the burden of pregnancy and looking for a proxy. It is a painful decision, however willingly undertaken to take the responsibility of proud parenthood. With same sex marriages gaining social and legal approbation in many countries, gay couples seeking for surrogate mother to bear the child has become another distinct possibility. The media reports would have us believe that India is the preferred destination for surrogate mode of procreation; not because the laws afford a favorable climate but there exists no law to regulate this procedure.

The procedure
The essence of surrogacy is that eggs are recovered from the ovaries of the 'commissioning mother' after in vitro fertilisation (IVF) stimulation. They are inseminated and fertilised in a laboratory and then a number of embryos are placed in the uterus of a 'surrogate mother' who has agreed to carry the child until birth and then surrender it to those with whom she had entered into an agreement. Traditionally a surrogate mother is inseminated with the male client’s sperms so that the child would share some genetic relationship with the couple. Now it is possible to use both donated egg and sperm or an embryo from persons outside the bond of marriage for the couple seeking a child.
The childless couple may have to enter into surrogacy agreement where all the terms requiring consent of the surrogate mother to bear the child, the medical procedures of artificial insemination, the right to be reimbursed in the reasonable expenses for carrying the child to full term and willingness to hand over in adoption the child that is born to the contracting couple, presumption relating to the parentage of the child. The inadequacies of law are glaring at every stage.

Dilemma of entering birth particulars
If a child is born to a surrogate mother by artificial insemination using the semen of a person not her husband, the issue of paternity may be a source of social predicament as to whose name shall be entered in the Birth Certificates. The Indian Evidence Act makes a conclusive presumption that a child that is born to a woman and a man during the subsistence of marriage as the child of the man. In a surrogacy arrangement, the mother is not the mother that bears and gives birth to the child and the father is not the man that is married to the woman that gives birth to the child. This statutory presumption will have to undergo a change to register the actual paternity. Adoption is resorted only if the biological (natural) parent and the adoptive parent are different persons. In surrogate parenthood, a biological parent may be the hiring parent and the person actual giving birth to the child may not be the biological parent. If the couples seeking a surrogate mother are foreigners, there is further problem of taking an Indian passport for the child and after taking the child out of the country with the permission of the Court and changing the nationality of the child later at the country of the commissioning parent(s), if Baby Manji Yamada’s case is any legal precedent.

Australian law
In Australia, S. 6 of the Artificial Conception Act 1984 provides that a woman who becomes pregnant by means of (a) artificial insemination; or (b) the procedure of implanting in her womb an ovum (whether or not produced by her) fertilised outside her body, any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. (2) The presumption of law that arises by virtue of subs(1) is irrebuttable.

No guidelines for lawful expenses for bearing the child
There is again no law or guideline to suggest what shall be the lawful expenses that could be paid to a surrogate mother. For the usually uneducated Indian females who are involved in surrogacy business, it is a respectable way to earn a living and support themselves and their family. But a lot of surrogate mothers in India prefer to live incognito during this phase because of non-acceptance by the society in general. Also most surrogate mothers in India are reported to belong from the rural background where the lure of money is stronger than the wealthy metros. In the US, surrogate mothers are typically paid $15,000, and agencies claim another $30,000.According to Christian Science Monitory (issue, April 3, 2006)in India, the entire costs range from US $2,500 to $6,500. The industry is estimated to be valued at $449 million, and the number of cases of surrogacy is believed to have doubled in the recent years based on newspaper classifieds and inquiries at clinics. There are also no official figures on the number of surrogate births in India, but it estimated that about 100 to 150 occur annually in India, with the number of failed surrogacy attempts estimated to be much higher. The hard numbers remain elusive, partly because the practice is defused among small towns like Anand, Gujarat. What constitutes lawful expenses for bearing the child and what amounts to financial allurement or financial recompense for bearing the child are difficult to gauge.

UK law
In UK, under section 30(7) of Human Fertilisation and Embryology Act 1990 (the 1990 Act), no money or other benefit, other than for expenses reasonably incurred, could be given or received in relation to surrogacy, unless such payment had been authorised by the court. The Family Division of the English Court said in a 2002 case that the amount paid towards loss of earnings (when the surrogate mother was on state income support, which fact was not disclosed) to be apart from expenses for carrying the child, would be against law. Costs of surrogacy pursuant to a surrogacy agreement which an English woman had entered into with a Californian, who was to bear the child, was held to be not legitimate and opposed to public policy in another case before by the Queen’s Bench (2000), where the former complained that her ability to bear children had been negated by a medical practitioner treating her negligently and hence the compensation against the medical practitioner for medical malpractice should include ‘commercial surrogacy costs’.

Psychological issues
The child born through the surrogate mother is normally expected to hand over to the couples on whose behalf the child is conceived. A characteristic which distinguishes surrogate parentage from situations in which conventional adoption takes place, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child's existence is the result of an intended chain of events in which adoption is a contemplated step even at the stage of its conception. In an Australian case of Re A and B (2000) before the Supreme Court of New South Wales, an arrangement had been made with the sister of the wife of the donor of the sperm for surrogacy. After the child was born and when an application had been moved by the couple for taking the child in adoption from the birth mother through an application in Court, it was opposed by the NSW Department of Community Services. The department raised a number of arguments: the public policy of discouraging surrogacy arrangements; the potentially adverse emotional impacts of the child's conception and birth; the inability of the child to be consulted at this stage; the possibility of the commissioning parents deciding to observe secrecy about the child's origins; and the disturbance of ordinary family relationships if the birth mother became the child's aunt. The department suggested various alternative regimes of guardianship and parenting orders, which would still leave open the possibility of an adoption order at a later stage. The Supreme Court of New South Wales took notice of the following circumstances: The applicants took part in pre-natal appointments and pre-natal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother's labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for 5 days and were discharged together. The child then went home with the proposed adopting parents and had been in their continuous care since then. The applicants did not plan to extend their family further. The birth mother's conduct had been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. There was also happy communication between the child and her half-sister. Overall relationships were happy and appropriate for two families where the wives are sisters and their daughters were cousins, and the sisters lived independent lives. It accordingly, rejected the objection and while granting the adoption order.

Existing legal framework, fragile
Surrogacy in India for parents living in foreign countries but desiring children through Indian mothers is outsourcing practice at its worst. It is not always gratuitous altruism that is at work for a woman in India to make the choice of surrogate motherhood. There is a greater need to prepare a sound legal framework, by amending existing laws relating to birth registration, evidence, embryo transplantation, adoption and guardianship. The already over-burdened courts will have to devise new ways of educating and sensitizing judges to handle legal and psychological issues of prevention of exploitation of surrogate mothers on account of indigency , deciding on suitability of adoption and guardianship of intending parents. All this is not to say that by providing for suitable laws, all the issues are fully addressed. The failure of the Organ Transplantation Act to check racketeering in trading of organs, especially in kidney donations ought to make us extra circumspect in dealing with the present requirements as merely a legislative exercise waiting to be solved through laws. Doctors, psychologists and social workers will have to be actively involved to provide unction to keep this cogwheel moving to secure informed public opinion and arrest scope for exploitation and unethical practices.

Thursday, October 16, 2008

Human Rights in Madras High Court

1. Human rights, as being fundamental to life and civil liberties, as guaranteed through Constitution and other laws, when put through the prism of Court machinery obtain a refraction of diverse hues of reliefs for different categories of persons. The scenario unfolds poignantly more in the context of denial of rights and liberties than their positive assertions. The courts, they are, who invariably play the vital link between rights and their enforcement. If we have come by a situation in Tamil Nadu where human rights transgressions are not alarmingly high but minimal, if we may say modestly, we need to deduce that it is in no small measure due to the role of our courts, more particularly the Madras High Court.
2. The triad of fundamental freedoms of expression, movement and association found the first affirmation in A.K.Gopalan
[1] and V.G.Row, the names that are etched into constitutional history via the Madras High Court. His challenge to preventive detention law only partially succeeded when the Supreme Court[2] ruled that detention law was part of law established under the constitution and hence the reasonable restriction to freedom of movement under Art 19 was satisfied so long as there was a law to deny the freedom. The unanimous opinion was however that the provisions of section 14 of the impugned Act in so far as it prohibited the disclosure of the grounds contravened the requirements of Art 22(5) and hence invalid. A.K.Gopalan was not to rest with order of detention when he challenged the detention on the ground that the period of detention had not been indicated and consequently was ordered to be released on 19.5.50. Just a few days earlier, the Supreme Court had handed down the judgment upholding the Preventive Detention Law and A.K.Gopalan was arrested when he barely came out of the Court to go to meet with his lawyer. This was again challenged by yet another petition for Habeas Corpus. A Division bench held that the order of arrest was being made only to flout the earlier order of release made by the Court. The decision reported In re A.K.Gopalan[3] was a telling reminder to the establishment that mala fides in action in administering the order of detention would be subject to judicial review, when it held the order of detention to be vitiated. In the first order was Gopalan's plea for his freedom of expression and the second order was his right to freedom of movement which was sought to be curtailed by an order of detention. The third ruling relating to freedom of association came too soon through the Full Bench decision of the Court in V.G.Row v State of Madras[4]. The declaration of People’s Education Society as an unlawful association under the provisions of the Criminal Law Amendment Act was challenged by the General Secretary who was also a Barrister at Law. The court inter alia held that the inadequacy of publication of the notification, the omission to fix a time limit for the government to send the papers to the Advisory Board or for Board to make its report, the denial to the aggrieved person of the right to appear in person or through counsel before the Board were features which rendered the Amendment Act unconstitutional. This view was approved by the Supreme Court in the State of Madras v V.G. Row[5].
3. Temple entry of Harijans was an important landmark in the human rights dossier. Social activists like Vaidyanatha Iyer and E.V.Ramasamy had distinct roles to play in breaking the scourge of untouchability and recognise the right of Harijans to enter into temples. A denomination of temple at the shrine of Sri Krishna in Udipi administered by His Holiness Sri Viswothama Thirtha Swamiar of Sode Mutt, Udipi pleaded that the constitutional guarantees as religious denomination
[6] gave it the power to administer and manage its own affairs, which out-rode the provisions of Madras Temple Entry Authorisation Act 5 of 1947 and hence would not fetter its right to prevent anyone community of persons from entering upon the temple. The Division Bench rejected the plea in its decision reported in 1956 1 MLJ 125 when it said,
“By reading Articles 25 and 26 of the Constitution together a question of temple entry is not involved in Article 25(b), but it is considered only in Article 25(2)(b) which was an exception to Article 25(1) which guarantees the right to any citizen freely to profess, practise and propagate his religion. This freedom of practising religion can be restricted by the Legislature when it infringes the rights of all classes of Hindus to worship freely in a Hindu Religious Institutions of a public character. The power of the State to make a law for throwing open Hindu religious institutions of a public character as contemplated in Article 25(2) (b) of the Constitution is not in any way circumscribed, restricted or whittled down by the provisions of Article 26(b) giving a religious denomination the right to manage its own affairs in matters of religion. The prohibition of untouchables from entering into a denominational temples is not a right of that denomination to manage its own affairs in matters of religion.”
A recent decision of the Division Bench in Thol Thirumavalavan v Commissioner HR & CE
[7] quashed the direction of the Executive Magistrate ordering of closure of a Mariamman temple near Salem town purporting to maintain law and order when the entry of SC/ST was sought to be prevented by the management of the temple and the Court referring to the provision of Tamil Nadu Entry Abolition Act 1947 directed the authorities to open the temple and give protection to worship particularly persons belonging to SC/ST,.
4. The Protection to Scheduled Castes/Scheduled Tribes by enacting S.C. & S.T. (Prevention of Atrocities) Act was tested for its potency by the High Court, not through its prerogative writs, but under an expansive interpretation of Section 482 Cr.P.C. In a string of decisions starting with Mariammal v State of Tamil Nadu and others
[8] that awarded compensation of Rs.1.5 lacs to the victims family for death in custody to C.Vijaya v State of Tamil Nadu and others[9] and In Alagarsamy v State of Tamil Nadu[10], the Court had in each case directed further investigations to be made and fresh charge sheets to be laid apart from registering the cases merely under the provisions of the Indian Penal Code by reminding the Magistrates that after perusal of the police report, if they find that there are sufficient materials available on record for the offence committed under the SC & ST Act, they shall commit the same to Special Courts to have trial for the offences under the IPC and for offences under the SC & ST Act.
5. It is not merely a dignity of a person in life that would call for protection of human rights, but there shall be a dignity also in death. So holding, the Division bench held that there can be no declaration before the Civil Court that anyone community was exclusively entitled to use any particular piece of property for burial and cremation and for permanent injunction restraining the persons belonging to Schedule Castes from using the property for that purpose. The Bench ruled in Souriar and others v N.Shanmugasundaram Pillai and another
[11] that “Section 4(iv) of the Untouchability (Offences) Act read with Sections 13 and 16 thereof leaves no room for doubt that no injunction could be given in such matters.” This decision paved way for a summary rejection of a plaint in a ruling under Article 227 of the Constitution, when the suit was merely at the stage of issuance of summons when the High Court in Rajendran v [12] , where the Court held that institution of suit to prohibit Harijans from taking their dead bodies in a particular way amounted to practicing untouchability banished under Article 17 of the Constitution and threw out the plaint, even before calling upon the defendant to file a written statement.
The claim of a poor person to secure the body of his son who was a labourer in a rubber plantation in Malaysia was upheld by a direction of the Madurai Bench of Madras High Court in S.Sethu Raja v Chief Secretary, Government of Tamil Nadu and others
[13]. The High Court had directed the Indian Embassy at Malaysia to intercede to secure the body from the mortuary and arrange for dispatch to India at the cost of the government. The Court said that the provisions of International conventions which elucidate and effectuate fundamental rights could be relied upon by the Courts in all their facets and could be enforced as such. It went on to observe that the right to life guaranteed under Article 21 of the Constitution includes the right to live with human dignity and the same should also be extended to a person who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such humanity.
6. On an occasion of an en mass detention of thousands of political activists, right to liberty cannot be whittled on issues of procedure and the latter shall be subsumed in the norms of substantive justice. In G.K.Moopanar v State of Tamil Nadu
[14] a Division Bench of the Court said that it would not be necessary to file individual bail applications for thousands of persons belonging to a political party when they were taken into custody alleging unlawful assembly. The Court set them at liberty on a writ petition filed under Article 226 of the Constitution as Public interest litigation. It said that the existence of an alternative remedy by means of bail applications did not take away the jurisdiction of the Court in an extraordinary situation where thousands of persons had been kept in confinement and adverting to Section 57, 167(1) and 167(2) of the Criminal procedure Code, the Bench reminded that it was the duty of a Magistrate while remanding persons to custody or extending remand to be satisfied that there are sufficient materials before him for exercising such a power. The court found that there was no justification for keeping the other accused in custody after having released the leaders of the agitation and it really amounted to hostile discrimination under Article 14 of the Constitution. Holding that courts should not mechanically pass orders of remand without verifying the entries in the diaries and satisfying themselves about the real necessity for such remand or extension of remand, the court while entertaining writ petitions for habeas corpus had laid down the safeguards to be followed in Elumalai v State of Tamil Nadu[15].
7. Can a person accused of an offence under the provisions of Prevention of Terrorism Act be released on bail within one year of detention? This question that fell for consideration in the case of P. Nedumaran v State
[16] was that subsections (6) and (7) of Section 49 are a departure from the normal rule of presumption of innocence in favour of the accused and that bail applications could be entertained even before expiry of one year and in such cases the accused will have to prove that there is a prima facie case for acquittal instead of showing that there is no prima facie against him for conviction.
8. Prisoners’ rights have obtained systematic consideration by the High Court in various dimensions. M.Karunanidhi and others v State of Tamil Nadu
[17] had struck down the proviso to Rule 541(1) that in respect of an accused and under-trial prisoners under T.A.D.A. Act, only legal adviser and close relatives shall be allowed to interview them. It excluded a person claiming to be a friend or other relative who was not a spouse or a sibling or a son or daughter of the detenu from interviewing the person. This provision was sought to be resurrected by fresh amendment to the prison rules during the rule under the stewardship of the very same person as a Chef Minister of the State who was instrumental for the decision and it was again struck down in Nedumaran v State[18].
9. The provisions relating to termination of pregnancy under the Medical Termination of Pregnancy Act obtained a rare show of touching concern for pro life and primacy to patient autonomy, when a girl aged 15 years opted to retain the foetus in spite of the father who was a guardian sought for medical termination of pregnancy in V.Krishnan v V.Rajan
[19] . The Division Bench has discussed the abortion issue from the view point of Christianity, Islam and Hinduism. Incidentally, but more importantly, considered this right as upholding the woman’s autonomy over her body even during her minority. In this case, the fundamental right of a sixteen year old girl to keep the child in her womb until safe delivery was seen in the context of a request of the guardian father (mother having died in the infancy of the girl) to secure medical termination of the pregnancy on the ground that teenage pregnancy will lead to complications. The court found that the girl was fully aware of the consequences of pregnancy and child birth and she was categorical that the pregnancy should not be disturbed. The court on an analysis of the medical termination of Pregnancy Act held:
“The entire scheme of the Act shows that the provisions thereof can be invoked only by the pregnant woman. If she happens to be a minor, the registered medical practitioner, who is approached for terminating the pregnancy, must take care to get the consent of the guardian of the minor in writing. Sub.s.(4) (a) can never be understood as dispensing with the consent of the pregnant woman if she is below 18 years of age. The provision is only intended to help the registered medical practitioner to take into account all the relevant facts and circumstances as set out in S.3 so as to decide whether the continuance of the pregnancy will involve any of the risks mentioned in the Section”.
10. But, see how the pendulum swung back to give the primacy of decision making for the guardian of a ward. A child’s right to be imparted education in a language of its choice could not be taken away by the State, said the High Court, by compelling the person to be educated only in the mother tongue for, that meant interfering with a guardian’s right to decide what was appropriate for his child. The Full Bench of the Court was striking down G.O.Ms.No.324 issued by the Government in Tamil Nadu Tamil and English Schools Association, Madras v State of Tamil Nadu
[20] prescribing that Tamil or mother tongue shall alone be the compulsory medium of instruction and termed the G.O. as irrational and arbitrary and thus violative of Article 14 of the Constitution of India.
11. The decision in Ramachandran v The Inspector of Police
[21] ruled that a juvenile cannot be a ‘Goonda’ to be taken in preventive detention. This proposition was taken to its logical extension in Minor Prabhakaran represented by maternal aunt Nagammal v State of Tamil Nadu[22] when the court said that the non-obtante clause under TADA could not operate to eclipse the applicability of Juvenile Justice Act for a person who was aged 15 and to be visited with notice of detention under the former Act. The court said that provisions of the Juvenile Justice Act over-rode TADA, and it was a functional imperative to make way for such an interpretation, whenever the issue concerned the case of a juvenile , ‘to avoid absurdity and injustice by judicial servitude to interpretative literality’.
12. The court responded to the anguished cry of a woman who had been deprived of her liberty by an illegal arrest and detention and was subsequently dispossessed from the house in which she had been residing. In Meera Nireshwalia v State of Tamil Nadu & others
[23], the court held :
“A writ court’s jurisdiction in these matters is more ex debito justitiae than as a rule of law as courts as sentinels of the peoples’ rights, cannot close their eyes to matters which strictly do not fall within the realm of law, or in cases where law is thrown to winds and those who are expected to obey, observe and follow law, decide to violate it’.
The court directed an inquiry to be instituted into the conduct of the police officers and also directed the estranged husband to provide alternative accommodation to the petitioner. Again, the Court sounded with unique passion a stiff warning against the establishment of law enforcers for the cause of the so called mentally ill persons, when it was dealing with a haebes corpus petition in Nethalie Vanderbyranghe v State of Tamil Nadu
[24], a French tourist in India who had been rounded up by the police along with 100 and odd other persons as ‘mentally ill’, certificates were obtained from doctors on perfunctory or nil medical examination, and after securing reception orders from judicial magistrate who passed such orders mechanically, lodged them all in a mental hospital. After directing the detenu to be set at liberty, the court asked:
“Mentally ill persons are not criminals; they have not committed any offence. Thus, is it necessary for their protection that action should commence with a first information report? The law makers should seriously consider an alternative procedure by which reception orders can be issued without a police complaint”.
13. The ambit of Section 17 of the Protection of Women from Domestic Violence Act, 2005 was examined by the court in Vandana v T. Srikanth
[25]. The Act being relatively new, a narrow interpretation of the provisions would defeat the object of the Act. By a proactive interpretation, the Court held that it is not necessary for a woman to establish her physical act of living in the shared household either at the time of institution of the proceedings or in the past. As long as there is a domestic relationship, there is a deemed right to live in that house and such a household becomes a shared household and a relief of injunction not to disturb her right of entry.
A right to maintenance claimed under section 20 of the Act was maintainable, said the decision in M.Palani v Meenakshi
[26] on the basis of a “domestic relationship” established through consensual sex. It said, referring to the definition 2(f),
“The above referred provision makes it clear that any woman who is or has been in a domestic relationship with the respondent can make a complaint under the provisions of the said Act. Further the "domestic relationship" thus defined as a relationship between two persons, who live or have, at any point of time, lived together. The provision does not say that they should have lived together for a particular period.”
It said that the Family Court’s power to award maintenance existed independently of any report or intervention of Protection Officer.
14. The law against disability discrimination obtained a liberal interpretation through the decision in Muthu v Tamil Nadu State Transport Corporation
[27] where the Court said that the term ‘disability’ used in Section 47 could draw support not only in respect of the definition ‘disablities’ as contained in Section 2(i) of the Act, but will encompass such other disabilities which disable a person from performing the work which he held immediately, prior to acquisition of such disability and thereby entitled him to avail the benefits conferred under the said provision for having acquired such a disability. Responding to a prayer against the government and HR & CE Department to make facilities for persons with loco-motor disabilities to access places of worship, viz., temples in Tamil Nadu by appropriate infrastructure in Meenakshi and another v State of Tamil Nadu and another[28], the Commissioner of the department issued circulars to all the subordinates to provide wheel chairs to physically disabled devotees with an attender and give priority for darshan.
15. The increasing tendency to convert civil disputes in to criminal cases to harass and embarrass debtors in difficulties and particularly of financial institutions’ and banks’ attempts to arm-twist debtors to obtain unfair bargain came for severe flak from the High Court In P.Ashok Kumar v Inspector of Police (Crimes)
[29] . The Court adversely commented on bank's role as modernised version of Shylock by resorting to complaints through police resulting in direction for further investigation through Magistrates and causing their arrest in the course of such investigation. The Court said,
"Even before talking about the approach of the police, judicial propriety demands that this Court should initiate suitable action against those judicial officers, but (who) knowingly collude with the complainant/banks to grant such orders. “
The Court did not leave the matter without directing the Registrar, Vigilance to collect statistics regarding private complaints regarding credit cards, personal loans, housing loans, higher purchase loans, default in payment of installments, complaints under Section 138 NI Act etc., which involved disputes purely of civil nature, where arrests and investigation by police were ordered under Section 156 (iii) Cr.P.C. by judicial magistrates all over Tamil Nadu.
16. The right to claim compensation against the state for custodial violence and for victims in criminal cases is firmly established now. Not limiting it to State’s vicarious liability for actions of its subordinates but also for failure to protect law and order, the new approach marks the paradigm shift, as reflected in the judgment in K. Venkataraman and another v State of Tamil Nadu & others
[30]. The court was dealing with a writ petition for compensation filed by two advocates whose property had been destroyed by a riotous mob. The mob that was protesting against the inaction of the police in failing to arrest the accused in a murder case attacked the house of the petitioners as the first petitioner had appeared in other cases as counsel for the suspects. Holding that compensation could be claimed under Article 226 even for loss of property, the court held that where the damage caused was not on account of any positive action taken by the State while maintaining law and order but on account of culpable inaction on the part of the police in not taking adequate safety measures, the doctrine of exercise of sovereign power was not applicable and the State was liable to pay compensation to the victim. The court observed that the deletion of the article relating to fundamental right to property made no difference as the right to property was constitutional right under Article 300A. The Division Bench in this case was reiterating the law set out by another Judge of the court in R. Gandhi and others v Union of India & another[31] where compensation was directed to be paid for damage to property of Sikh community in the violence that rocked Coimbatore after the assassination of Smt. Indira Gandhi.
Do not assume that in a criminal case only the person found guilty could be directed to give compensation. A bid to quell communal frenzy in a southern district of Tamil Nadu by Police failed when the mob out-numbered the police. In the orgy of violence and mayhem, a police constable on duty was killed. The criminal case against the village leaders who took active part in the mob violence were acquitted in appeal by the Madurai bench of the Madras High Court in Vijayan and others v State of Tamil Nadu
[32], but the court in novel but admirable gesture in its judgment pleaded for payment of compensation of Rs.1,00,000 to be paid to the victim’s family by the village community as a whole through their village leader.
17. The bar members have also played significant role in protecting the human rights causes. A large group of lawyers had sought for cancellation of bail that had been granted in an appeal against conviction for murder of dalits in caste rivalry but the High Court had originally rejected the right of lawyer to approach the Court for cancellation of bail in public interest. The Supreme Court intervened to hold in P.Ratnam v State
[33] that the High Court had suo motu power to cancel bail and cause arrest that had earlier been released on bail and such a power should have been exercised when the lawyers had sought for cancellation of bail. Chandru v State of Tamil Nadu[34] came close on heels to Olga Tellis dispensation of the Supreme Court providing for alternative accommodation for pavement dwellers but the former went a step more in quoting the Slum clearance’ own motto, God revealeth in the smile of the poor and exhorting the Slum Clearance Board to implement the scheme of providing housing to the displaced pavement dwellers.
18. There is nothing to be alarmed about the fact that human rights issues are talked about mostly by political dissenters, extremists’ groups, social non-conformists, weaklings, goondas and the most disadvantaged. Democracy is strong when dissent is not merely tolerated but respected. Equality is better ensured when the less endowed is not slighted but allowed to grow. Quality of life is more meaningful when the worst criminal is recognised as a worthy son of god waiting to be reformed. Human rights protected through court process by the administration of rule of law are the surest gift to universal brotherhood and prosperity.

[1] The irrepressible communist leader met with conviction for denouncing the police as "good for nothing persons and idiots" under the Police (Incitement to Disaffection) Act 1922, (1947)2 MLJ 376. On 23rd April 1948 he was detained by an Order of the District Magistrate, Malabar, purporting to be under 8. 2 (l) (a), Madras Maintenance of Public Order Act, 1947 (Madras Act I ] of 1947) in the Vellore Central Jail. The Order under Section 3 (l) (a) of Madras Act I [1] of 1947 had been passed by the District Magistrate on his alleged satisfaction that the detention of A. K. Gopalan was necessary for the maintenance of law and Order and Publics safety. At that time, he was already serving a sentence for the criminal case referred to above and hence the Madras High Court said in its decision dated 18.11.1948 (1949 Crl LJ 843) that the detention was illegal. He had brought another complaint that while he was under detention, the police was standing close to his lawyer, when he was giving him instructions. The High court said that Gopalan’s privacy was breached and ruled that a police officer could not be in the vicinity (AIR 1950 Mad 259).
[2] AIR1950SC27, 1950CriLJ1383, (1950)IIMLJ42(SC), [1950]1SCR88
[3] 1952 II MLJ 690
[4] AIR 1951 Madras 147
[5] AIR 1952 SC 196
[6] Commissioner, Hindu Religious Endowments vs. Shri Lakshmindra Thirtha Swamiar of Shirur Mutt AIR 1954 SC 282 guaranteed the denominational status to the temple. This decision affirmed the decision of the Madras High Court in Lakshmindra Theertha Swamiar vs. Commissioner, H.R. & C.E AIR 1952 Madras 613
[7] 2008 (3) TNLJ 545
[8] 1998 1 LW Crl.285)
[9] 1999 2 LW Crl.719
[10] 1999 3 CTC 464
[11] 1972 (2) MLJ 62
[13] 2007 (5) MLJ 404
[14] 1990 1 MLJ Criminal.228
[15] 1983 Law Weekly ( Crl) 121
[16] (2003) I MLJ (Crl) 332.
[17] 1995 MLJ Crl. 1
[18] 2001 4 CTC 549
[19] 1994 1 MLJ Cri.731
[20] 2000(2) MLJ 575
[21] 1994 Crl.L.J.3722
[22] WP 4511/2003 Manu TN/0347/2003
[23] 1990 WLR 313
[24] HCP 1041/2008 decided on 19.9.2008
[25] (2007) 6 MLJ 205
[26] AIR 2008 Mad 162
[27] 2006 (5) CTC 413
[28] W.P.7027 of 2006 decided on 7.7.2006
[29] 2008 2 TNLJ 235
[30] (2007) 2 MLJ 804
[31] AIR 1989 Mad 205
[32] (2008) 3 MLJ (CRL) 98
[33] 2000 (2) SCC 391
[34] (1985) 3 SCC 253

Sunday, August 17, 2008

The abortion debate

The recent reported dilemma
Haresh and Niketa Mehta had a reason to grieve. Scientific (medical) tests on Niketa showed that the child in her womb had serious congenital deformities. They did not want to bring to world a child that could have on its birth a congenital heart blockage and mal-positioned arteries. Mehtas’ doctor advised that the pregnancy could be terminated. The JJ Hospital panel which had said that the child could be born with severe incapacity made a volte face a week later to predict that the incapacitation could be a matter of ‘least chance’ (sic). The Bombay High Court said that it would not approve of the abortion. The couple was distraught and a couple of days later, a more composed Ms.Niketa was reported to have braced herself to be ready to fight the illness for the child. The Union Health Minister said that the matter required a serious debate. One more week passed. Nikita had a miscarriage. The child arrived dead and unfortunately now, the whole episode has come a full circle. The first task lies in identifying the underlying issues without getting judgmental.

When termination of pregnancy is permissible
Dr. Chandrasekar, a renowned demographer was also a clever Health Minister. He hoped to tackle the problem of population explosion through the medico-legal route. Unwanted pregnancy could be terminated legally he said, when the extant Penal law made it an offence. He piloted in the parliament the safe passage of the bill into an Act on 10th August 1971that was, the Medical Termination of Pregnancy Act 34 of 1971 ( called the MTP Act). The Act was intended to provide for the termination of certain pregnancies by registered Medical Practitioners (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is of the opinion, formed in good faith that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped(emphasis supplied). Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks (emphasis supplied), the opinion shall be of not less than two registered medical practitioners. The limitation of the period of gestation does not apply in a case where the termination of pregnancy is, in the opinion of a medical practitioner, who may not even have experience or training in gynaecology and obstetrics, immediately necessary to save the life of the pregnant woman. The Act lists two circumstances when there arise presumptions of anguish resulting in grave injury to the mental health to a woman on account of such unwanted pregnancy: (1) Where any pregnancy is alleged by the pregnant woman to have been caused by rape; (2) Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children.

Medical termination of pregnancy – the ethical angle
The MTP Act does not address any ethical issues, but in legal regimes that proscribe abortions, they stem from a moral stand point that medical termination of pregnancy results in causing death of a living- being. The fundamental question is what makes killing a human being wrong and then to consider whether these characteristics, whatever they might be, apply to the earliest stages of human life in the womb. Explanation that has roots in religion expounds the traditional Christian doctrines such as that all humans are made in the image of God or that all humans have an immortal soul. In India the objections to termination of medical pregnancies do not have strong religious overtones. Termination of pregnancy itself has not been a major obsession for the populous India. What we are witnessing today is the urban response to how a whole new generation of people perceives the problem.
Roe v Wade (1973) is the celebrated case that rocked the United States when the Supreme Court of USA decided, by a 7-2 majority, that an implied constitutional right to privacy, whether based on the Fourteenth Amendment's concept of personal liberty or in the Ninth Amendment's reservation of rights to the people, was sufficiently broad to encompass a woman's right to terminate her pregnancy. The court summarized its decision as follows:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
In so doing, it delved into the history of abortion in Anglo-American criminal law and Justice Blackmun concluded that a right to abortion was consistent with that history. As early as the mid-thirteenth century the common law punished abortion after foetal formation as homicide. Foetal formation, the point at which the fetus assumed a recognizably human shape and was believed to be ensouled, was thought to occur some 40 days after conception. By the mid-seventeenth century abortion was prohibited as a "great misprision" or serious misdemeanor. By the early nineteenth-century at the latest the common law appears to have prohibited abortion only after "quickening." Quickening, which occurs between the 12th and the 20th week of pregnancy, is the point at which the mother first perceives fetal movement. The later common law may have chosen this point because it was the point at which unborn life was believed to begin or because it was the point at which it could be legally proved to have begun. It is this period that the Indian law recognizes. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the majority of the Supreme Court, led by Justices Souter, Kennedy and O'Connor, retained and reaffirmed the central holding in Roe but said that the Pennsylvania law that required notification of abortion to the husband to be invalid.

Legitimacy of abortion, elsewhere
The problem is not confined to the United States and extends to other Anglo-American jurisdictions where there is a legal right to an abortion. Canada is a prime example. In 1988, the Supreme Court of Canada affirmed a woman's right to abortion and struck down, as unconstitutional, provisions in the Criminal Code that regulated abortion. British law makes no distinction between abortions performed at any stage up to 24 weeks. Current German laws permit abortion after mandatory counseling and a three day waiting period. This scheme was a political compromise necessitated by the re-unification of Germany. Rather than criminalizing abortion, German law focuses on counseling, employment security, social welfare and financial support to persuade pregnant women to give birth to their children. In this way, German law successfully achieves some degree of protection for the unborn by obtaining voluntary recognition of personal responsibility and respect for the personhood of the unborn.

Medical termination of pregnancy of children in womb with defects
The most critical decisions are the ones when the child in the womb is diagnosed to have some mental or physical deformities when the mother decides to terminate the pregnancy. Not only can we then ask ourselves: Do we want a child? But with genetic information we can ask ourselves: Do we want this particular child? This reframes the nature of the parenting relationship, making our parenting conditional upon the child meeting certain criteria. The issue now swings from health concerns to avoiding disability. Within this understanding of disability, genetic technology then becomes a tool not for promoting community health but a mechanism of social control for avoiding the appearance of difference. Even apart from the point of view of health and avoidance of disability, modern notions of individual liberty of pregnant woman who believe that apart from them, no one else will have a right to decide about what she wishes to do with the foetus. In today's society, some pregnant women deny the biological fact that they are mothers until their baby is born. Late term abortion is justified as a form of self-defense to get rid of involuntary servitude and a form of slavery caused by pregnancy. Look at also the other end of the spectrum of a point of view that regards instances of partial-birth abortion performed on fetuses with chromosomal abnormalities under the guise of reducing suffering as threatening the best interests of the mother and infant. It suggests that an alternative for parents faced with the decision to terminate their pregnancy is perinatal hospice. Perinatal hospice recognizes the value of bringing these infants to term by treating them as beings conceived with a tangible future. This alternative is preferred because of post-termination psychological distress and because biblical teachings emphasize the dignity and worth of each foetus.

The Indian reality in the debate
Abortion in India does not always take the legal route. Native medicines and quacks control this practice to a large extent. Unwanted pregnancy is silently endured till the denouement is registered in the shape of dumping the child in the garbage bins or at the place of birth itself. If this scenario is perceived as a crude generalization, we need to be concerned about even a miniscule population that wants the legal route. We have to gradually pull the rest of the population into the vortex of such frame of thinking by placing confidence in the opinion of medical experts, with courts acting as ultimate arbiters. Does making possible the period of termination of pregnancy from 20 weeks to 24 weeks solve the problem? The traditional Hindu law has always recognized the child in the womb as a legal entity and even assigns to it a right to impeach a sale of ancestral property as invalid on its birth, on sufficient legal grounds. Abandon any religious view, if you like. Do we still have a homogenous answer? The answers depend on where you place the primacy for decision making. Should the mother decide because, she bears the child and the ‘patient autonomy’ is paramount? Should the doctor decide because she knows best about is safe for the pregnant woman? Does the science (that includes curative medicines) and technology (that includes all diagnostic tools) decide what is appropriate, because it gives you evidence of whether the foetus is ‘normal’ and if born, could be cured of deformity? Does religious calling lead you to belief that in His act of creation, the status of child with or without disability and the choice of person to parent such a child, there are certain divine dispensations that a human mind cannot fathom and hence one must accept any child as gift from God? Should the Court have the last word, as it is always the final arbiter of all matters that are contentious? Is there anything like a correct view point? Proving the merit of your point of view constitutes the debate.

Tuesday, July 22, 2008

Civil Disputes and Police interventions

What is the face of Police that is familiar to you? Do you see it as the protector against wrong and a punctilious enforcer of law and order? Or, you have been exposed to only an ugly corrupt countenance of the police force and hence would want none of it for resolving your pressing problems with a brazen transgressor of law? The Hindu mythology assigns to Vishnu the role of a cosmic protector, who constantly participates in worldly affairs, ensuring that all is well. Outside the ring of Agamic pantheon of Hinduism, lies the rural tradition of worshipping grama devadai, which is called kaval deivam. Along with Karuppasamy or Muniswaran or Sudalai or the formless Nadukkal, you will find a stony police man also, with a long moustache but having a kind face. Worship is offered to the statue of police in so many villages. From a protector, police has unfortunately become a symbol of oppression and protector of the bully and the villainy rich. The more fearsome he looks the closer to reality he is.

Look at the scene of crimes in India. Most of them have property disputes as the genesis and to a lesser degree, are matrimonial disputes including infidelity or promiscuity. If the police are involved at the earliest stages of property disputes or matrimonial discord, there is a chance of abatement of factious differences and defusing fulminating volcano of conflicts. Police know their worth and the significant role that they could play. A trident could be a protective weapon, if it is wielded to protect but a veritable killer when it is brandished to offend. If the police receive a complaint of land dispute or matrimonial woes of demand of dowry or other forms of cruelty and act with responsibility, we would have half as fewer crimes, given the natural propensity of our folk to assign a kavalkaran (protector) status to the police. Pathetically, we have systematically degraded every institution that ought to protect us. It is now the proverbial fence eating up the crops.

You will find a petition to the police regarding property dispute will be referred to civil court without the police undertaking the investigation, when the aggressor is a bully who has taken good care of the police for his show of apathy. The complaint would go without being registered. When should the police intervene in property disputes and when should he refer the parties to seek for adjudication before civil courts? What type of complaints should be registered as FIR and when could the police receive the petitions with advice to resort to some other agency? When could the police resort to arrest after receiving the complaint and what circumstances would be just, not to indulge in arrest even though a complaint of commission of cognizable offence is made? Recently all these questions came to be raised before the Madras High Court when an application for anticipatory bail was presented by an accused apprehending arrest in a land dispute involving crores of rupees. The Court pulled up the city crime branch police for making pretenses of receiving complaints under the guise of inquiry but not registering cases. The Court noted that enquiry has a predictable course, when the police would initiate a conciliatory poser that would soon degrade to coercive katta panchayat.

What has brought us to this unseemly pass? Many of the decisions of the Supreme Court and the High Courts on the status of complaints and duty of registration of complaints go unnoticed. Dealing with section 154(1) of Cr.P.C. the Supreme Court said in Mohd Yousuff (2006) that registration of FIR involves only the process of entering the substance of information and in Ramesh Kumari (2006) it pointed out that genuineness or credibility of the information is not a condition precedent for registration of a case. In Lallan Choudhary (2006), the Court again said that when a complaint of cognizable offence is made, the police has not option but to register the case. In Upkar Singh(2004), the Court had earlier clarified that while registration of two complaints from the same party on the same occurrence could be bad as making possible improvements and deviation from truths, registration of complaint and counter complaint from rival parties relating to the same incident is not barred, it they would lead to unraveling the truth. In All India Institute of Medical Sciences Employees Union case (1996) and in Aleque Padamsee (2007) the Court has explained the modalities to be adopted as set out in Section 190 read with Section 200 of the Code of Criminal Procedure when the police officials fail to register FIR.

Alongside these pronouncements, see how the courts are approaching the position of a trespasser and what relief he could get in civil courts. As early as 1961, Justice Veerasamy (as he then was) said in Alagi Alamelu Achi that a trespasser in possession cannot be protected by an order of injunction. In 1991, Justice P.S.Mishra (as he then was) said, in the context of a government initative to remove the hutments that had come up along the seashore that even a trespasser is entitled to protection under Article 226 of the Constitution. In 2004, a 3 member Bench of the Supreme Court said that a trespasser in “settled possession” is entitled to protection until evicted by due process of law. You will notice that different branches of law, the police understanding and public perception of what the law is, are pulling in different directions. Perspicuity, an essential attribute of law, is lacking in the present scenario. The High Court has in a recent case, appointed a committee consisting of high ranking police officials to go into these problems of coping with civil disputes through the instrument of police machinery. The report and the court’s decision on the issues would be most significant. Who is a trespasser? What is settled possession? What are Court’s powers? When can police intervene and what is the scope of investigation? Circulate your own views on this subject and sharpen your ears to listen. It is wise not to be distracted by side stories that have germinated from this case.

Thursday, July 17, 2008

Share your thought for a new legislation

A popular English daily lists out several strange laws legislated in efforts to maintain law and order in diverse legal regimes across the world. They range from legislation that makes illegal for chicken to lay eggs on Sundays to legislation that require the permission of a husband by a wife to wear dentures. The constant refrain has always been that there are a lot more laws than necessary. A country that is regulated by rule of law is not necessarily a country that has enormous laws. The efficacy of enforcement mechanism alone makes the difference. We have laws to prevent crimes; we have laws to punish practitioners of untouchability; there are laws that protect women and children. All of them have not guaranteed a crime free society. They have not effaced the scourge of untouchability. Our women cannot still walk on the roads in hours of darkness without fear. Our children do not lead lives of frolic. Many of them slave under hard labour and are the breadwinners for their families even if they get but just a slice of bread to bite into.

In a country where there is a population of more than a billion, you may think that it is a country that abounds in fertile couples. The truth is that the problems of infertility are confined not to anyone particular race, religion or country. It is prevalent all across the globe. The WHO estimates that 8-10% of the population has problems of infertility. The science of medicine has alleviated the malady by Assisted Reproduction Techniques (ART). In Vitro Fertilization (IVF) is a procedure that helps couples that are unable to conceive a child in a regular manner by fusing the sperm from the male to the egg of the female to fertilize in the laboratory through what is called in vitro (literally, “in glass”) procedure and implant the fertilized egg in the womb of the female. In cultures that recognize the institution of the marriage itself as necessitous to procreation and perpetuation of the clan, infertility could be a ground for break down of marriages. It is commonplace that the slur has a gender bias, so that a woman that does not become pregnant becomes the target of harassment, even apart from the insistent dowry demands that might mar the harmony of the wedlock. Times when the small family norm was not yet a national population policy, it was possible to adopt children from within the immediate family circle, when the couple was infertile and find fulfillment of their wants. Now with small families becoming a reality among the population living in small towns and villages also, the practice of adoption is not resorted from within family members. With the advancement of medical techniques for assisting infertile couples for increasing chances of pregnancy, the advantages are too obvious to be missed. The right to have a child is not merely a nature of personal preference but an issue of social good, for the society benefits by fulfilled families.

Fertility clinics are around in every corner in major cities and the persons that run them have booming lucrative practice. Surprising, there are no laws in India to regulate this practice. In UK the passing of Human Fertilization and Embryology Act in 1990 saw the establishment of the Voluntary Licensing Authority and later the Interim Licensing Authority whose main role was to monitor the developments in Assisted Reproduction. The Act aims to regulate research on embryos, to protect the integrity of reproductive medicine and to protect scientists and clinicians from legal action and sanction. The UK Legislation has stood as a benchmark piece of legislation and used as template for legislation in other jurisdictions. Science and technology move faster than laws and even the British enactment is found to be insufficient in several areas such as cloning and several biomedical research that raise important ethical considerations in the realm of manipulation of genes to create ‘designer babies’. The legalization of same sex marriages import the idea of perpetuation of family only through techniques of surrogate parenthood either from a donor sperm outside the realm of marriage or from a person within the boundary of marriage to a surrogate parent outside the marriage. What should be the money to be paid for the attendant medical care for bearing the child may be a crucial question to be addressed.

In India, the regulation of fertility clinics is sought through stringent legislation which is reported to be in the post -draft stage and the government is also considering notification of strict guidelines and their mode of enforcement to regulate the functioning of fertility clinics till the law is enacted. Instances are reported when couples who have gone to fertility clinics, have realized to their shock that the sperm or egg of one or the other was not from one of the couples themselves and abortions are resorted due to complications arising from DNA mismatch. The new legislation or guidelines, it is reported, would enable even a single woman who wishes to have a child without marriage to be impregnated by IVF techniques. The child that may be born will have an entry of the mother in the Birth and Death Registration Act but the father’s name may not be disclosed, without stigmatizing the child as illegitimate. The legislation may even favour childless widows or widowers to help them secure a child through a donor sperm or through a surrogate mother. It will make possible gays and lesbians to beget children. Along with this legislation, enactments relating to marriages, adoption, registration of births and deaths, abortion, crimes, etc, will have to be drastically amended. All these changes cannot come about through a legislative exercise unaided by a healthy debate from the knowledgeable sections of the society.

Lawyers have played significant roles in the past in fashioning legislation by their legal skills and their knowledge of the needs of the society. Here is a chance for the legal community to address all these issues from legal, social, psychological and ethical perspectives. The round table is being readied now. Do you have views to express?

Tuesday, July 08, 2008

Oh Men! Don't compete with women for motherhood!

The world is not any the less equal only because men and women are made differently, - the ways their biological differences make them think, look and behave. These differences themselves have assigned to them dissimilar roles to play in the society. So long as the physical prowess helped men dictate the primacy of their actions, they could claim superiority. But men are challenged in every field, in studies, in professional skills, in the study of science, in expressions through arts and what have you. However, men have always held their own in the arena of sports; women in the pride of bearing children. They never contested each other in these fields alongside but see now, a man has challenged womanhood even in the act of creation. Not just novelty this, but scary!

Thomas Beatie was born female, underwent surgery and took hormone treatment to become a male; kept her reproductive organs, got artificially inseminated by a donor sperm, became pregnant and has delivered of a baby on 29th July at Los Angeles. The baby is a girl, we are told, but wait till a decision is made if the child will remain as a girl or whether there will be a sex change. In reality, no one undergoes sex change for the fun of it. Cases of infants born with ambiguous genitalia are not common but nor are they rare. Ambiguous genitalia are physical anomalies in which the genitalia are not clearly identifiable as male or female. They are often detected at birth and are a sign of intersex. Of the 3 to 4 million children born annually in the United States, approximately 1 in 2000 are reportedly born with ambiguous external genitalia (thus approximately 1,500 to 2,000 such children yearly). Estimated 100-200 pediatric surgical sex reassignments are performed in the United States annually, mostly during infanthood. Official statistics are not available for India but it is believed, there are at least 10 lakh people in this category.

The case presents strange ethical questions. It just does not stop with what a man/woman wants to do with his/her body. (S)he lets his/her decision impinge on the psychological upbringing of the child, who has no scope for any form of participation in the decisional process. The child will have to grapple with the enigma whether the person who gave birth to her is her mother by the fact that she was delivered through her loins or a father because, he looks and carries his identity in the society only as a male. There is no clear cut medical opinion whether physicians should perform sex re-assignment surgery (SRS) on Infants with ambiguous genitalia. The American Academy of Pediatrics published guidelines supporting the view that such a child could be raised either as a male or a female depending on the nature of surgery to be performed in infanthood. This has also been strongly challenged by many academicians and even the consent obtained from parents for performing surgeries on children are contested on the grounds that practitioners obtain consent on 1) the false aura of urgency; 2) the failure to impart complete and accurate information; 3) the oppressive secrecy in which parents are advised to not discuss the situation with others and to particularly withhold all information from the child; 4)the failure of physicians to reveal the uncertainty of the outcome; and 5)the failure to account for the child's "right to an open future" in the decisional calculation.

Beatie made a conscious choice to live like a man, underwent a surgery and married a woman. He asked the surgeon to retain the ovaries and uterus. The doctor obliged. There are no laws to regulate this practice. Patient autonomy in India is never predominant and medical paternalism, leaving the doctor to decide what is best, gains normative acceptance. Perhaps, what Beatie did in USA will not be replicated among the Indian male or female, at least not in the near future and doctors in India would not have done what an American doctor chose to do or not to do. But follow the winds of change. There have been odd instances of transgender persons occupying positions of political power – Shabnam Mausi became Member of Parliament from Sohagpur in Madhya Pradesh in 2000 and Kamla Jaan was elected Mayor of Katni in Madhya Pradesh in 2000. In fact, in the case of Kamla Jaan, in August 2002 the Madhya Pradesh High Court invalidated her election on the grounds that a eunuch is “essentially male” and therefore cannot contest from a seat reserved for women. The court, in effect, did not recognise a person’s right to choose his or her gender identity. But traditional Hindu law and Muslim law accorded to them status to inherit the property and be a propositus to form a fresh stock of descent. The MP High Court might have committed an egregious error. The case is pending before the Supreme Court. In 2005, the Central government introduced a category ‘E’ in passport application forms where ‘E’ stands for eunuch. But transgender people are not satisfied with this. The better option would have been a ‘T’. They are sensitive to the stigma that words such as eunuch bear and do not want to be addressed thus.

In the past 10 years concern about the transgender community has become widespread owing to the fear of the spread of HIV/AIDS. Since the hijra/kothi community has been found to engage in sex work, numerous NGOs have mapped them as “vulnerable population” for HIV/AIDS intervention projects. In its 172nd report, the Law Commission, chaired by retired Justice Jeevan Reddy, recommended that Section 377 of the IPC be repealed. The recommendation, however, was made in the context of a redefined law on sexual assault to replace the old law on rape. The Department of Social Welfare in Tamil Nadu has passed a G.O. in December 2006 with recommendations to improve the living conditions of aravanis. The G.O. strongly favours counselling as a means to deter families from disowning a transgender child. It also recommends counselling for children with behaviour changes in schools, for which teachers need to be specially trained. The G.O. clarifies that there is no ban in admitting transgender persons in schools and colleges and that no discrimination should be shown against such persons on account of their sexual identity. The G.O., however, is yet to be implemented but the welfare board set up by the State promises an opportunity to put these steps into practice. An important recommendation made by the jury following the December 17 public hearing was that cases against transgender women must be handled by women police alone to avoid sexual harassment in police custody. The jury also recommended that transgender women be protected under the Tamil Nadu Prohibition of Eve-Teasing Act, 1998. It is also suggested that the Board of Film Certification should curb derogatory portrayal of the transgender community in movies and television serials.

All these initiatives, important as they are, shall not take the Indian community to tread the adventurism of their US counter-parts and doctors that spells disaster to off-springs’ psychological upbringing. Gillette blade tempts a man in an ad with ogling bevy of girls to signify what a smooth shave could help achieve. Don’t give in yet! Children will least doubt in whose laps they would want to be cradled. A man is just no competition to a woman for motherhood.