Tag: Supreme Court cases

CASE NUMBER

Criminal Appeal No. 169 of 1957

EQUIVALENT CITATION

1962 AIR 955; 1962 SCR Supl. (2) 769

BENCH

Bhuvaneshwar Prasad Sinha, C.J., A.K. Sarkar, J.R. Madholkar, N. Rajagopala Ayyangar and S.K. Das, J

DECIDED ON

20^th January 1962

RELEVANT ACTS

The Indian Penal Code, 1860; The Indian Constitution of India, 1950

BRIEF FACTS

On 26 May 1953, the appellant, Kedarnath Singh, a member of the Forward Communist Party, delivered a speech in the village Barauni. He used the word ‘dogs’ for the CID officers commenting that they were loitering around and used the term Goondas for the members of the Indian Congress Party. He stated in his speech that the Congress Party was treating its people just like the Britishers. It was further stated by him that the money is being given by the Zamindars and capitalists to the members of the Congress Party and they’re being benefitted while the Kisans and Mazdoors are still suffering in society. He said that the Forward Communist Party believes in the revolution, which will arrive, engulf the capitalists, zamindars, and Congress leaders of India who have made it their business to plunder the nation, and on their ashes, a government of the country’s poor and oppressed citizens will be erected. He also targeted Vinobha Bhave’s land redistribution initiatives.

After the substantial oral evidence, the Trial Magistrate convicted Kedarnath Singh under Section 124A (sedition) and Section 505 (public mischief), of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a year. The convict approached the High Court of Patna and the issue was heard by late Mr. Justice Naqui Imam upheld the lower court’s decision and dismissed the appeal stating that the speech given by the appellant was certainly seditious. The Convict further moved to the Supreme Court of India through the special leave to appeal. The constitutional validity of the ss. 124A and 505 of IPC were questioned before the Division Bench on 5 May 1959, stating that those sections were inconsistent with Article 19 (1) (a) of the Constitution.

After reviewing the case’s judicial history, the Apex court was confronted by two conflicting rulings from the Federal Court in Niharendu Dutt Majumdar v. The King and The Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao. When referring to both decisions, the Supreme Court expressed its belief that if the Federal Court’s decision and interpretation were upheld, the challenged passages would fall under the purview of legal limitations on the freedom of expression’s fundamental rights. However, if the Privy Council’s ruling and interpretations are upheld, the challenged parts could be declared unconstitutional under Article 19(1)(a) read in conjunction with Article 19 (2) of the Constitution.  By doing this, the disputed parts’ scope was constrained and their constitutional validity was confirmed in each of them. As a result, the appeal was denied, and the High Court was given the appeal of another connected matter.

ISSUES

1. Whether ss. 124A and 505 of the Indian Penal Code are ultra vires of Article 19(1)(a) read with Article 19(2) of the Indian Constitution.
2. Whether the intention of the accused is to create disorder, disaffection, or incitement to violence in order to be guilty of the offence of sedition law.

DECISION

The Supreme Court stated that Article 19 (1) (a) is a fundamental right guaranteeing the freedom of free speech and expression with reasonable restrictions under the purview of clause (2) which consists – (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. The constitutionality of the ss. 124A and 505 of the Indian Penal Code are consistent with the requirements of clause 2 of Article 19 to punish the wrongdoer and protect the state and public order.

Section 124A states as follows, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The hon’ble court further stated “the Government is established by law and it is the symbol of the state. Any seditious acts or spreading hatred or producing disaffection against the Government would be within the penal statute as the feeling of disloyalty to the Government established by the law or enmity to it imports the idea of tendency to public disorder by the use of the actual violence or incitement to violence.”

The Court stated that it has to invalidate any law that unreasonably restricts the freedom of speech and expression that is at issue in this case because it is the custodian and guarantor of the citizens’ fundamental rights. However, the freedom must be protected from once more being used as a justification for denigrating and criticizing the legalized government in ways that incite violence or have the potential to cause a riot. A citizen is free to criticize or comment on the government or its policies as he sees fit, as long as he does not incite others to act violently against the legally established government or with the intent of causing a commotion. Therefore, it is the Court’s responsibility to draw a distinct line separating the scope of a citizen’s fundamental right guaranteed by Article 19(1)(a) of the Constitution from the legislature’s authority to impose reasonable restrictions on that right in the interest of, among other things, the security of the State and public order.

The court stated that clause (2) of Article 19 saves the Section from the vice of unconstitutionality. It is obvious that each of the elements that make up the s. 505 offense has anything to do with or has a direct impact on public order or state security. As a result, these clauses would not go beyond what could be considered legitimate limitations on the right to freedom of speech and expression. Therefore, the Supreme Court stated that the Criminal Appeal 169 of 1957 has to be dismissed and the Criminal Appeals 124-126 of 1958 would be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by them.

CONCLUSION

In a democratic nation like India, where the freedom of speech and expression is given a lot of importance, Section 124A of the Indian Penal Code seems like a hindrance or an obstacle that does not completely let the citizens of the nation exercise their fundamental right. Through the case of  Kedarnath Singh v. State of Bihar, the supreme court has established a clear-cut reason why sedition shouldn’t be seen as an obstacle. In the aforementioned case, where Kedarnath Singh was commenting on the ruling government in a very bad way which would have paved the way to create chaos in the society, the court stated that citizens have a right to pass comments and their views upon the government and its working but it shall not disturb the public order or incitement of violence in the society.

Thus, the outcome of the judgment made it clear that Sedition i.e., 124A is intra vires and it is a reasonable restriction imposed by law. Given the recent circumstances, there are a lot of cases lodged under Section 124A, sedition. The importance given to the maintenance of law and order in the country should also be given to the protection of the freedom of speech and expression of the citizens. There are high chances that the persons in power can use these sections to infringe the fundamental rights of the individuals.

This article is written by K. Mihira Chakravarthy, 2^nd year B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).

INTRODUCTION

Surrogacy has provided infertile couples with their children thanks to the advancements in reproductive technology. On the one hand, this is beneficial; on the other hand, it may have the potential to induce all three parties involved: the surrogate, the surrogate baby, and the infertile couple. Surrogacy arises when a couple who is unable to have a child enlists the assistance of another woman, who subsequently carries and gives birth to the couple’s child. The biological relationship between the surrogate mother and the surrogate baby is fairly straightforward. However, the relationship between the surrogate mother and the infertile couple is much more complicated.

The advent of childbirth in the form of test-tube babies, as well as surrogate motherhood enabled by improved technologies, have opened up hitherto unimagined sexual possibilities. Because any reproductive technique that replaces the marital act is a breach of the sanctity of pregnancy, when natural procreation is separated from sexual relations, spouses might easily become sex objects. It becomes difficult to see each other’s dignity, especially in the unborn kid. Science and technology, on the other hand, have made significant contributions to society. However, it is not ethically correct and is highly contentious.

INDIAN PERSPECTIVE

According to ancient Indian philosophy, the biological purpose of life is to propagate one own trait (genes) and all living creatures are here on a transition phase to pass their traits (genes) to the next generation.¹ In India, infertility is widely seen as a societal taboo. Infertile couples are thought to feel and explain the sorrow and trauma of infertility the best. Infertility does not claim a person’s life, but it has a terrible impact on a person’s life because he or she is unable to fulfil the biological function of parenthood due to no fault of their own. It is also well known that Indian society as a whole has a fairly stable family structure, a strong desire for children, and a specific desire for males to carry on the Vansh lineage.

There are two types of surrogacy: gestational and conventional. Traditional surrogacy entails the surrogate being inseminated, either naturally or artificially, with the male partner of the childless couple’s sperm, with the resultant kid being genetically connected to the surrogate mother. This has several ethical, societal, and legal ramifications. In the instance of gestational surrogacy, an embryo is created in a test tube from the intended couple’s eggs and transported to the surrogate’s womb via Artificial Reproduction Techniques (ART). As a result, the resulting infant bears no genetic resemblance to the surrogate mother.

Health Risk: The surrogacy process is fraught with difficulties. The primary issue is the surrogate mother’s health risks. In India, up to five embryos may be implanted into surrogates to increase the likelihood of pregnancy. Using so many embryos raises health risks for newborns and mothers, possibly even endangering the latter’s life. An older surrogate mother is more likely to experience perinatal mortality, perinatal death, intrauterine fetal death, and neonatal death. The mother is more at risk for pregnancy-related hypertension, stroke, and placental abruption. All medications have side effects, whether they are hormones or medications the surrogate is told to take. There is also the risk of maternal hyperstimulation syndrome.

Commoditization of Surrogate Child: Various international agreements and pieces of judicial precedent indeed support the idea that human dignity forbids the commoditization of the body, regardless of the wishes of the person whose commoditization is in question. Simply expressed, the practice of surrogacy carries the risk of transgressing norms of human decency. The human body and its components “must not, as such, give rise to the financial benefit,” according to the Convention on Human Rights and Biomedicine. Germany and Switzerland also use the argument that commercial surrogacy reduces the gestational carrier and the child she bears to mere contract objects to support their objection to the practice. In actuality, CEDAW views motherhood as “a social function” as opposed to a business purpose.

Horsburgh (1993) contends that after signing contracts promising to give birth to children for clients, surrogates are subjected to physical exploitation. Even worse, surrogates may only receive a small portion of the initial payment if the pregnancy is indeed aborted. Contracts may also hold mothers liable for risks such as illnesses brought on by pregnancy, disease, and postpartum problems².

India leads the world in surrogacy because of the affordable care and easy access to women who want to carry foreigners’ children. According to some estimates, the Indian surrogacy market is already worth $445 million. Surrogacy costs roughly $12,000 in India against $70,000 in the US. Additionally, there are legal restrictions on the surrogate mother charging the childless couple in the US and the UK; however, there are no such restrictions in India.

Surrogacy involves basic questions about the essence of personality, human dignity qualities, individual liberty and the boundaries of choice, and the contrast between what can be sold, what must be given away, and what should not be given in any way. Opponents of surrogacy argue that the practice is equivalent to prostitution, and by that similarity, it should be disallowed on moral grounds. Surrogacy’s prospects in India range from the opportunity to exploitation, from rural women being rescued out of poverty to a futuristic nightmare of developing-country baby farms.

LEGAL DEVELOPMENTS

2002– Since 2002, commercial surrogacy has almost been permitted in India.

2005– The Indian Council for Medical Research (ICMR) issued the initial guidelines for accreditation, supervision, and regulation of ART clinics in 2005, marking the start of an effort to regularize this.

2008– The Indian Supreme Court emphasized the need for legislation to control surrogacy in 2008.

2009– The Law Commission of India then presented a report in 2009 on the need for legislation to regulate surrogacy and address related issues³.

2010– A legal contract between the commissioning parent, potential surrogate, and ART clinic was suggested by ICMR in 2010 when the guidelines were revised.

2015– The draft of the ART bill, which is still pending, was opened to suggestions by the ministry of health and family welfare. The Indian government outlawed commercial surrogacy in 2015 and barred entry for foreigners, NRIs, and POIs.

2019– In 2019, the union cabinet approved the surrogacy regulation bill. Only Indian married heterosexual infertile couples are eligible to use surrogacy services under this bill.

2021– The Lok Sabha has approved this bill, and it will become law very soon.

Highlights of The Surrogacy (Regulation) Bill, 2019:

• Other than the medical costs and insurance coverage throughout the pregnancy, the bill does not include any financial payment to the surrogate mother.
• Surrogacy is permitted when it is for intending couples who suffer from proven infertility, altruistic or altruistic reasons and not for commercial purposes. It is not for producing children for sale, prostitution or other forms of exploitation, or any condition or disease specified through regulations.
• Requirements for intending couple: Certificate of Essentiality shall be issued by District Medical Board or District Magistrate upon the fulfilment of certain requirements. The requirements are proven infertility of one or both members of the intending couple, insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
• Eligibility for surrogate mother: The competent authority shall issue a certificate of eligibility, after considering the requirements i.e., a close relative of the intending couple; a married woman having a child of her own; 25 to 35 years old; a surrogate only once in her lifetime; and possessing a certificate of medical and psychological fitness for surrogacy.
• The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include; granting, suspending or cancelling the registration of clinics; enforcing standards for surrogacy clinics; investigating and taking action against breach of the provisions of the bill.
• The Central and State governments shall constitute the National Surrogacy Board and State Surrogacy Boards, respectively.

CASE LAWS

Baby Manji Yamada vs. Union of India- The destiny of Baby Manji Yamada, who was born to an Indian surrogate mother on behalf of a Japanese couple who had already separated before the baby was even a month old, was unknown. Ikufumi Yamada, the child’s biological father, sought to bring the child to Japan, but neither the Japanese government nor the legal system allowed for such a situation. The girl was eventually permitted to leave the country with her grandmother after the Supreme Court of India had to step in. The Baby Manji Yamada ruling had the most effect in that it prompted the Indian government to pass legislation governing surrogacy. Following the Manji case, the Supreme Court of India declared surrogacy legal in India in 2008. This decision strengthened foreign confidence in choosing India as the location for their surrogacy.⁴

The bill is meant to prevent surrogate mother exploitation and to protect the rights of a surrogate kid so that no one can coerce her into carrying a pregnancy out of avarice. But is that actually how things are? Do these steps go far enough to stop child and female trafficking and exploitation of the female body? Since infertile couples have no other options, there is a potential that a close female cousin may be coerced by family members to assist an infertile couple against her will. Isn’t that lady being taken advantage of? She can decide to become a surrogate against her will merely to avoid pressure from her relatives. The intended parents’ ages, which should be 40 for the lady and 45 for the father, are another concern.

Currently, they are 50 and 55 years old, respectively. Just think about how old these parents will be when their kids turn 20. The child shouldn’t have a parent who is much older than them. They might pass away when their surrogate child is still very young and may not be emotionally or financially stable. Parenting at an advanced age is particularly risky for the child and should be discouraged. There is a significant need to fix all the issues before the law is put into effect because this draft bill has received so many criticisms and flaws. Government should think things over thoroughly before making any judgments.

CITATION

1.  Gupta PD, Lino A. Bikaner: Capricorn Publishing House; 2010. ‘Mothering a cause: practical knowledge of reproduction and motherhood.’

2.  Surrogate Motherhood-Ethical or Commercial, Centre for Social Research (CSR) 2.

3.  Law Commission of India. Report 228, 2009.

4.  AIR 2009 SC.

This article is written by Sanskar Garg of School of Law, Devi Ahilya University, Indore.