Surrogacy becoming neo cannibalism

Ethics of Organ donation,
blood/plasma/bone marrow donation and surrogacy.

Difference between India and USA:

Death is always shocking. Irrespective of age. But death of a young person, in United States is news, not just nationally, but internationally. In countries, where generations of people did not migrate to squat and settle at new lands, problem of over population prevents every death from becoming a news especially when an element of consent can be attached. India and Russia appears to be surrogacy capitals of the world. Organ donation, blood/plasma/bone marrow donation, surrogacy, Sperm/egg donation and what not. The rotation of activities of life are not around living but achieving, becoming or accumulating. Surviving as long as possible can only be next goal and what better use of money can be to buy life even if at the cost of someone else’s life.

Surrogacy, poverty and poor medical conditions in India:

In Indian traditions, motherhood is hailed as reincarnation. A successful delivery of child is treated as rebirth for mother. But that story is for financially comfortable. Poor will sell anything to taste better life and rich will buy anything without hindered by scruples. The recent death of a 30-year-old Indian surrogate mother with two children ought to have given a pause to ponder over the ethics of the international surrogacy market. but so far nothing visible on horizon.

Organ donation:

Organ donation is similar story but legally there is a ban on commercial sale of organs. In a recent case Delhi High Court chose to ignore possible past commercial relations between donor and recipient. It observed:

“Merely because in a given case, a near relative may not be willing to donate his or her organ/tissue to the recipient, it is not ground to either raise suspicion of a commercial transaction, or to reject the case altogether. It is not the mandate of the authorization committee to compel or drive the near relative of the recipient to donate their organ/tissue to the recipient ….. the term “payment” under the Transplantation of Human Organ and Tissues Act would not cover a monetary transaction between a donor and recipient in the past when such a transplant was not required….. (Source:–affection-of-distant-kin-good-enough-for-donation-of-organs–HC/949872/

Only UK has a potential customers of commercial surrogacy worth six billion as reflected from following article:

A combination of the high costs of such surrogacy in the UK, the extremely limited number of willing surrogates, and the legal restrictions on commercial surrogacy in the UK has helped to create a global market in international surrogacy worth, on one recent estimate, about six billion dollars annually. Unlike international adoption, which is subject to strict regulation both in the United Kingdom and abroad, international surrogacy is entirely unregulated at an international level. Certain countries such as India and the Ukraine promote themselves as destinations for gestational surrogacy by providing good quality low cost medical care and by giving legal protection to commissioning parents. (Source:

How poor surrogate mothers are treated in these clinics, is reflected from the following article:

Even though the growth of surrogacy in India is a familiar story, too little is known about how the system actually operates. ………. Even if these people have put their signatures on a piece of paper, has there really been informed consent? One of the consent documents says that the hospital involved has “made sure to the extent humanly possible that he / she / they understand these details and implications”. This does not inspire a lot of confidence. (Source:

The pregnant lady is kept alive till the child can be taken out by cesarean procedure and then mother is thrown to Government Hospital to take care. (Source: Commercial or non-commercial, an agreement treating the life of child superior or preferable to mother, must be prohibited and special care for the mother must be ensured. It would also be wise if a women is not permitted to surrogate more than once. But presently there is no legislation and legislators have no time to think about this problem.

Colour no bar for consumption:

Position about are donor-ships related to bio-organs is no different. Thus rich would be consuming the poor with impunity and color of skin would not be a matter of consideration, for a change. Situation is, actually, ‘grotesquely exploitative’. Is it not a new kind of cannibalism? If not, what is it? Just because it has no name, it does not become ethical.

Ban on Solar Fims by Supreme Court of India

The supreme court of india. Taken about 170 m ...

Short analysis of Supreme Court’s unreasonable decision
to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, a Supreme Court of India’s judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”


Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.”


The VIP class problems:

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

Constitutionalism and judicial fiats:

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

Natural justice not followed:

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Consideration of irrelevant facts:

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Hypocrisy of Supreme Court in entertaining direct petition:

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21 of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Photo credit: Wikipedia

Confused interpretation of definition of piracy on high sea by USA Courts.

Piracy on high sea:

Piracy on high sea flag
Flag of pirate Edward England Polski:…

Definition of piracy:

In United States of America, Piracy is defined in 18 USC 1651 as “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”again 18 USC 1659 provides punishment for the following act of piracy (plundering a vessel):

“Whoever, upon the high seas or other waters within the admiralty and maritime jurisdiction of the United States, by surprise or open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined under this title or imprisoned not more than ten years, or both.”

From the above definition, the expression ‘sets upon any vessel’ makes it clear that completion of Robbery is not a condition for committing the offense. Surprisingly Supreme Court of USA, in United States v. Palmer and United States v. Smith, interpreted that under USA laws Piracy is an act of robbery at sea. Attempt to robbery was not considered to be an act of piracy. This definition is contrary to the definition of United Nation Convention on Laws on High Seas.

Definition of Piracy United Nation Convention on Laws on High Seas:

It defines the Piracy as under:

Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

I could not find the original judgments but I am curious as to what shall be line of reasoning in the above referred Supreme Court Judgments, especially after the fact that definition of US Code refers to ‘laws of nations’ (portion underlined in first para above). It is unbelievable that this view persisted for two hundred years. Now the news is

200-year-old U.S. Supreme Court definition of piracy has been in dispute in two attacks on Virginia-based Navy ships in April 2010 in waters off East Africa. The defendants were prosecuted in Norfolk, the first in a series of government prosecutions aimed at slowing the spread of piracy off Africa. The court’s ruling gives prosecutors wider latitude to go after people who attack U.S. vessels, U.S. Attorney Neil MacBride said.

“For decades, the international community has considered violent attacks on the high seas as an act of piracy, and today’s ruling will strengthen our ability to hold those who attack U.S. vessels by force accountable, regardless of whether they are successful or not,” said MacBride, whose office handled both cases.

More cases about piracy in USA:

In one case, a lower court judge dismissed charges against five Somalis in an attack on the USS Ashland, ruling since the men had not taken control or robbed the ship their actions did not rise to the definition of piracy. The ruling sends that case back to U.S. District Court for trial, the government said.

In the other case, prosecutors convicted five Somali men who attacked the USS Nicholas. It was the first piracy conviction in a U.S. courtroom since 1819. The ruling by the three-judge panel of the 4th U.S. Circuit Court of Appeals upheld those convictions and the life sentences the men received.


Comment: No doubt that people do not easily trust courts. United nations came in existence over 50 years ago. How something so obvious missed the courts since the United Nation Convention? It appears that USA is not signatory to the above UN convention as it may affect its own military vessels on High Sea?
Would above view be upheld by superior courts? We have to wait.

Photo credit: Wikipedia

Scope of Writ Appeal

Scope of Intra Court Appeals:

Gavel with a watch.

Letter patent appeal:

High Courts in India have same powers to issue the prerogative writs which English Law provides. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court, popularly called as Letters Patent Appeal. Scope of this intra court appeal has been circumscribed by Supreme Court of India in following words:

“While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.”

[Source: Wander Ltd. v. Anton India Pvt. Ltd. (1990 (Suppl) SCC 727)]
The scope of intra-court appeal was considered by Supreme Court of India (in Baddula Lakshmaiah v. Sri Anianeya Swami Temple (1996) 3 SCC 52), and it was indicated that a Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a court of Error.
It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.


Comment: It appears that jurisdiction of court in writ appeal is more akin to review than an appeal. Review is tethered to discovery of new facts or an apparent error of record but appeal is entirely a rehearing of the case. Therefore a writ appeal is not a rehearing but merely an exercise to correct an apparent error not to substitute opinion of division bench with the opinion of single judge.

Legality of child marriage in india

Child Marriage is illegal in India:

Is this a Child Marriage in 2009?

Background of Child Marriage:

Child Marriage or marriage of minors, like most of the other countries, was a traditional practice in India; where elders would commit to marry their minor children.

Various laws have been enacted from time to time to curb this practice, but it is not completely routed out. However, among Hindus, the child marriage itself has never been declared void by law. In respect to other religions, the problem had not been addressed at all. However there are two High Courts of the country whose Full Benches have held that now, in the wake of changes in law, Child Marriage is illegal and ineffectual till the child reaches age of consent, and a two-year time period elapses thereafter during which he/she can seek annulment of marriage. The ill-effect of such marriages are well-known. Besides the health and life of child, it has social fallout as well. Some of the ill effects have been summarised by UNICEF here. According to Unicef, world’s 40% child marriages take place in India.

Laws applicable on child marriages, in India:

At present there are two laws governing the Child Marriage: 1. Hindu Marriage Act, 1956 2. Prevention of Child Marriage Act, 2000 There are two penal provisions which also come into play, in case of child marriage. These are: 1. Abduction (Section 363 of IPC) 2. Rape (Section 376 of IPC)

Effect of Child Marriage Act, 2000:

A Girl of 13 years of age eloped and got married with a major boy. Her mother wrote to Chief Justice of Delhi High Court which treated her letter as writ petition. The division bench of Delhi High Court found the existing law as unclear on the subject therefore it formulated following questions for consideration by a larger Bench:

1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
(2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
(3) If yes, can she be kept in the protective custody of the State?
(4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
(5) Whether there may be other presumptions also which may arise?

The above matter remained pending in Delhi High Court since 2008 and a similar situation arose before Madras High Court. A young girl aged about 17 years went to temple and did not return home. Her Natural Guardian filed a Habeas Corpus petition in High Court demanding her custody. Apparently she had eloped with a major boy and claimed that they had married in accordance with Hindu customs and rituals.

The division bench of the Madras High Court found that there were conflict of opinion in different benches as also High Courts. It also referred to the order of Delhi High Court formulating above questions and the fact that matter was pending. Accordingly Madras High Court also referred this matter to its Full Bench for answering the following questions:-

(1) Whether a marriage contracted by a person with a female of less than 18 years could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
(2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
(3) If yes, can she be kept in the protective custody of the State?
(4) Whether in view of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, a minor girl, who claims to have solemnized her marriage with another person would not be a juvenile in conflict with law and whether in violation of the procedure mandated by the Juvenile Justice (Care and Protection of Children) Act, 2000, the Court dealing with a Writ of Habeas Corpus, has the power to entrust the custody of the minor girl to a person, who contracted the marriage with the minor girl and thereby committed an office punishable under Section 18 of the Hindu Marriage Act and Section 9 of the Prohibition of Child Marriage Act, 2006 ? and
(5) Whether the principles of Sections 17 and 19(a) of the Guardians and Wards Act, 1890, could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the Hindu Marriage Act?

Reasoning of the Madras High Court on child marriage:

Since the Hindu Marriage Act as well as the Child Marriage Restraint Act do not declare a marriage of a minor either as void or voidable, such a child marriage was treated all along as valid. There were number of judicial pronouncements to this effect. In this legal scenario, The Hindu Minority and Guardianship Act also provided that the husband of a minor wife is her natural guardian. With effect from 10.01.2007, ” The Prohibition of Child Marriage Act, 2006 ” was brought into force thereby repealing The Child Marriage Restraint Act, 1929. It is manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited.
Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and also to enhance the health of the child and the status of women, whereas , the Hindu Marriage Act is a general law regulating the Hindu marriages. Therefore, the Prohibition of Child Marriage Act, being a special law, will have overriding effect over the Hindu Marriage Act to the extent of any inconsistency between these two enactments.
….the marriage shall remain voidable (vide Section 3) and the said marriage shall be subsisting until it is avoided by filing a petition for a decree of nullity by the child within the time prescribed in Section 3 (3) of the Prohibition of Child Marriage Act. If, within two years from the date of attaining eighteen years in the case of a female and twenty-one years in the case of a male, a petition is not filed before the District Court under Section 3 (1) of the Prohibition of Child Marriage Act for annulling the marriage, the marriage shall become a full-fledged valid marriage.
Similarly, after attaining eighteen years of age in the case of female, or twenty-one years of age in the case of a male, if she or he elects to accept the marriage, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period as provided in Section 12 (3) occurs, the marriage shall remain as a voidable marriage. If the marriage is annulled per Section 3 (1) of the Prohibition of Child Marriage Act, the same shall take effect from the date of marriage and, in such an event, in the eye of law there shall be no marriage at all between the parties at any point of time. As per Section 11 of the Hindu Marriage Act, any marriage solemnized in violation of Clause (i) (iv) and (v) of section 5 of the Hindu Marriage Act is void and the same may be declared by a decree of nullity, whereas under Section 12 of the Hindu Marriage Act, a voidable marriage may be annulled by a decree of nullity. The different expressions used in these two provisions cannot go unnoticed.
So far as Section 11 of the Hindu Marriage Act is concerned, the marriage is not annulled and is only declared as void by a decree of nullity. Thus, what is done by the court is only a declaration and not annulment of marriage. But, under Section 12 of the Hindu Marriage Act, since the marriage is not void ab initio, the same requires to be annulled by a decree of nullity. Here, it is not declaration but a positive act of annulment of the marriage by a decree of nullity. Similarly, under Section 3 of the Prohibition of Child Marriage Act also, the court annuls the marriage by a decree of nullity. Thus, Section 12 (1) of the Hindu Marriage Act and Section 3(1) of the Prohibition of Child Marriage Act are in pari materia. Therefore, unless there is a positive decree passed by the competent court annulling the child marriage, the marriage shall be subsisting.
There can be no doubt that parties to a void marriage do not acquire the status of husband and wife at all since the marriage is ipso jure void. It is because of this reason, in section 11 of the Act, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’ and instead has used the expressions either party thereto against the other party. Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions ‘husband’ and wife’. The omission to use these two expressions in section 12 perhaps, would only reflect the intention of the legislature not to give the full status of the husband and wife to the parties to a voidable marriage, like the spouses of a valid marriage. If we look into the provisions of the Prohibition of the Child Marriage Act, it is obvious that here also, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’. In particular, in section 3 of the Act, the expression ‘contracting party’ has been used. The term ‘contracting party’ is defined in section 2 (c) of the Act which states that a contracting party, in relation to a marriage means either of the parties whose marriage is or about to be thereby solemnized. Thus, to some extent, Section 3 of the Prohibition of Child Marriage Act is in pari materia with Sections 11 and 12 of the Hindu Marriage Act insofar as the expressions referable to the parties to the marriage are concerned. This would again go to strengthen our conclusion that the male who contracts a child marriage of a female child cannot attain the full status of a husband like a husband of a full-fledged valid marriage. To repeat, by the said marriage , though he burdens himself with legal liabilities arising there from, he acquires only limited rights.
Though such a voidable marriage subsists and though some rights and liabilities emanate out of the same, until it is either accepted expressly or impliedly by the child after attaining the eligible age or annulled by a court of law, such voidable marriage, cannot be either stated to be or equated to a valid marriage stricto sensu.
The male who contracts a marriage with a female child falling within the ambit of Section 12 is not a husband of the minor in the legal sense and, therefore, as per The Hindu Minority and Guardianship Act, he will not acquire the status of the natural guardian of such child at all. It is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place. In this totally changed scenario since we are called upon to interpret the law, we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child. A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act. Thus, by committing an offence punishable under Section 9 of the Act, the adult male cannot acquire the legal status of the natural guardian of the female child.
We hold that Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act. Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child. After the advent of the Prohibition of Child Marriage Act since the male contracting party to a child marriage does not attain the full status of the husband until the child attains the eligible age, like a husband of a full-fledged valid marriage and consequentially since he is not the guardian of the female child of such child marriage, he is not entitled for the custody of the minor.
If the child, who has capacity to determine, expresses her wish not to go with her parents, it may not be appropriate for the court to compel her to go to the custody of her parents . The court may keep her in appropriate custody like, custody in a welfare home for children in need of care and protection set up under the Juvenile Justice [Care and Protection] Act. Here, it should not be misunderstood that the child could be sent either to a special home or an observation home which are meant for juveniles in conflict with law if the welfare of the minor child will be well protected if she is kept in the protective custody of the State, the court can resort to such course the minor, who enters into a marriage is not an offender under any of the provisions of the Prohibition of Child Marriage Act, 2006. Neither the minor girl is an offender under section 18 of the Hindu Marriage Act. The said provision states that every person who procures a marriage of himself or herself …… is punishable. Here, the minor girl does not procure the marriage and instead her marriage is procured by the others. Thus, such a minor girl is not a juvenile in conflict with law. Sections 17 & 19 of the Guardians and Wards Act can also be taken for guidance while deciding the question of custody of a minor girl whose marriage has been celebrated.

Conclusion about child marriage:

After the aforesaid reasoning the court reached to the following conclusive answers to the questions it had framed for answer:

i. The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court under section 3 of the Prohibition of Child Marriage Act. The said marriage is not a valid marriage stricto sensu as per the classification but it is invalid. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights.

ii. The adult male contracting party to a child marriage with a female child shall not be the natural guardian of the female child in view of the implied repealing of section 6(c) of the Hindu Minority and Guardianship Act, 1956.

iii. The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he may apply to the court to set her at liberty if she is illegally detained by anybody.

iv. In a habeas corpus proceeding, while granting custody of a minor girl, the court shall consider the paramount welfare including the safety of the minor girl not withstanding the legal right of the person who seeks custody and grant of custody in a habeas corpus proceeding shall not prejudice the legal rights of the parties to approach the civil court for appropriate relief.

v. Whether a minor girl has reached the age of discretion is a question of fact which the court has to decide based on the facts and circumstances of each case.

vi. The minor girl cannot be allowed to walk away from the legal guardianship of her parents. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition. vii. If the minor girl expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court may order her to be kept in a children home set up for children in need of care and protection under the provisions of the Juvenile Justice [Care and Protection] Act and at any cost she shall not be kept in a special home or observation home meant for juveniles in conflict with law established under the Juvenile Justice [Care and Protection] Act, 2000

viii. A minor girl whose marriage has been contracted in violation of section 3 of the Prohibition of Child Marriage Act is not an offender either under Section 9 of the Act or under Section 18 of the Hindu Marriage Act and so she is not a juvenile in conflict with law.

ix. While considering the custody of a minor girl in a habeas corpus proceeding, the court may take into consideration the principles embodied in Sections 17 and 19(a) of the Guardians and Wards Act, 1890 for guidance.  

Delhi High Court’s view on child marriage:

Now the Delhi High Court has also decided the matter and has agreed with the reasoning and conclusions of Madras High Court. However the Delhi High Court has also held that consummation of marrige with minor wife, who is aged below 15 years, amounts to rape u/s 376 of Penal Code and therefore the husband shall be punishable thereunder. Thus in these two States, Child Marriage, irrespective of religion, is clearly Illegal. It appears that the reasoning is sound and it is difficult to come up with a way to seek another interpretation. Let’s continue to progress.

Relevant links to full judgements:

Madras High Court.
Delhi High Court.

Image credit to: Nagarick who may not agree with the views above.

Suspension of Habeas Corpus in India.

None shall be condemned without Due Process of Law.

(ADM Jabalpur v. S.S. Shukla’s case: Analysis and Review)

Due process is the right to be treated fairly by law:

Right of Personal Liberty to a common man who is neither Nobel, Aristocrat, Royal or Rich was conferred very late in the west. Following is the earliest known concept to England:

“That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law. ( See: Liberty of Subject (1354) CHAPTER 3 28 Edw 3. The STATUTE of The Twenty-eighth Year of King Edward III.)

Original text of 28 Edw. 3; borrowed from:

Bill of Rights:

On December 16, 1689, after death of King James-II, the Parliament of England passed a law called ‘Bill of Rights’ which not only dealt with civil liberties of people but also proclaimed supremacy of Parliament in various matters. These matters are:

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. 3. That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious. 4. That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law. 8. That election of members of parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament. 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.

Evolution of Habeas Corpus clause:

Please take note of clause 5 which covers Habeas Corpus. In 1772 an Englishman Mr. Stewart bought a black slave in Jamaica and brought him to England. The name of slave was James Somerset. Once in England, the James refused to go back with Stewart. The slave was taken by force to the ship lying in river Thames and was placed in iron chains. The slave then applied for a writ of habeas corpus complaining illegal restraint on personal liberty. (See 20 State Trials 1-82 & Somerset v. Stewart (1772) Lofft 1-19 and wiki link here) Chief Justice of King’s Bench, Lord Mansfield who heard the writ observed that in the absence of any positive law (by Parliament), slavery can not be recognised in England. He ordered the slave to be free with following observation:

“Every man who comes into England is entitled to the protection of English Law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.”

Habeas Corpus in Constitution of United State:

The aforesaid principle was incorporated in following words in the Constitution of United States in 1791 as Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Supreme Court of United States has held that Fifth Amendment not only protects the procedural due process but also Substantial due process(SDP) which means that a duly enacted law can be struck down if it violates certain Constitutionally recognised principles. (Which is euphemism for stating that law which curtailed the liberties too far beyond the limits found reasonable by Supreme Court) On 12th June 2008 the Supreme Court of United States, speaking about the right of aliens to invoke Habeas Corpus held:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. There-fore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

However 4 years after the above judgement, Supreme Court has refused to hear appeals from seven of the 169 men being held in the military prison at a U.S. naval base in Cuba. The District Court quashed their detention holding that government’s intelligence report was unreliable. But Court of Appeal set aside this decision relying upon the secret intelligence report holding that there was presumption about its authenticity as it was an official act which is presumed to be regularly performed. The Supreme Court of USA has refused to intervene in the matter without assigning any reason. It appears that Supreme Court of USA is passing through its darkest hour which perhaps started with Bush v. Gore, 531 U.S. 98 (2000) wherein the court first stopped the recount of ballots and then ruled in favour of Bush on the ground of insufficient time to complete the counting of ballot. The relevant question in respect of persons incarcerated is: How long these people termed as alien combatants would remain in custody? Forever? Do they get opportunity of producing the witness to disprove the secret intelligence reports? Even though the law does not and can not insist on negative proof.

Right to life, Habeas Corpus and Due Process Clause in India:

In India relevant provision is article 21 of Constitution which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

It was way back, in 1955 the Supreme Court of India held that even an alien/foreigner is also entitled to protection of above provision (see Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta (AIR 1955 SC 367):

Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty except according to procedure established by law”, and article 22 prescribes the minimum that the procedure established by law must provide. There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period without the authority of a magistrate. The only exceptions are (1) enemy aliens and (2) “any person who is arrested or detained under any law providing for preventive detention”.

Emergency and suspension of habeas corpus in India:

In 1975 the Government of the day, under the leadership of Mrs. Indira Gandhi had already declared State of Emergency and suspended fundamental rights. The Supreme Court of India in its ignoble judgement titled ADM Jabalpur v.S.S. Shukla, interpreted that not only the fundamental rights were suspended, by implication right of High Courts under article 226 to issue prerogative writs also stood suspended:

Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.

And mocked at the prospect of possible abuse of powers by torture in custody:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or the people were otherwise murdered. Such instances are intend to produce a kind of terror and horror and are exhortative in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country. Quite often arguments are heard that extreme examples the given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

They could may also have relied upon the Peso’s Justice and ordered execution of the detainee to make the point but they were compassionate. Instead it was observed:

Article 21 is not a common law right. There was no pre-existing common Law remedy to habeas corpus. Further, no common law right which corresponds to a fundamental right can exist as a distinct right. apart from the fundamental right. (at p. 234)

Erroneous interpretation by Supreme Court of India:

The above para is factually incorrect. The constitution had saved all preexisting laws in force at the time of commencement of Constitution. And as a British dominion the laws of India were same as any British Colony. Due process which was the law enacted in 1354 and writ of Habeas Corpus was in force prior to Constitution, under Bill of Right, was saved by Letter Patent of each High Court. and in fact Habeas Corpus was a statutory remedy in Criminal Procedure Code of 1898 (replaced with Cr.P.C. of 1973 without this provision) which could be exercised by District Court. Further how misunderstood the subject was or how intellectually incapable the judges were, is visible from following passage which ignores even the Fifth Amendment to American Constitution, extracted here in above:

In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.

It appears these judges had never heard the maxim let justice be done though the heavens fall (Fiat justitia ruat caelum). This judgement also held that an order of detention without trial under the Act could not be subjected to Judicial Review like any other order to test its validity, with following twisted reasoning:

An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order. Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty. The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right. The expression “for any other purpose” in Article 226 means for any purpose other than the enforcement of fundamental rights. A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal. An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.

Thus an order of incarceration without trial could not be challenged like an ordinary executive order on the grounds of Wednesbury unreasonableness. Which means that even if order of arrest is for John but the Patrick has been arrested, he has no judicial remedy. They may as well have ordered that all court rooms in the country be locked up, till further orders, to save unnecessary expenses. Justice Khanna delivered dissenting judgement (and subsequently resigned from the Supreme Court) with following eloquence:

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

ADM Jabalpur case, no longer good law?

It is unfortunate that majority decision in ADM Jabalpur case has not been expressly overruled. But recent sheepish comments from the Supreme Court by way of obiter dicta indicate that they are ready to treat this shameful judgment ‘no longer good law’. See following two excerpts:

“In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency. (Ramdeo Chauhan vs Bani Kant Das) The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. (I.R.Coelho vs State Of Tamil Nadu)”

We are not aware what those subsequent decisions were which overruled the ADM Jabalpur case; as believed to be existing, in above Coelho decision rendered by a Nine Judge Bench. But the ld. Chief Justice who delivered that above Coelho order himself had passed one such order not about the life or liberty but sealing of property of people, which smacked of arbitrariness if not martial law. But that is another matter. Several later judgements relied on above ADM Jabalpur case. (See K. Anandan Nambiar v. Chief Secretary, Govt. of Madras) Another constitution bench expressly left it’s validity open.( See Attorney General For India vs Amratlal Prajivandas)

Ignorance is such a bliss. Humanity is on the threshold to evolve right principles to restore human liberties and to ensure that it is not trampled upon only on suspicion, secret reports, nationality or religion or attire alone. Those who are its custodians should not shriek their responsibility on petty short term goals. This article has been compiled for the benefit of students of law in India especially those who find this subject of Habeas Corpus and due process, confusing. Further more events taking place all over globe makes it to be right subject to remind us of; for we may not trample upon the liberties which are not ours. For more history on civil (properties and assets) liberties read Magna Carta.