Subject: Polity

The govt in the Supreme Court has said that same-sex couples and live-in partners are not included in surrogacy and assisted reproduction laws to avoid ‘misuse’ and provide children a ‘complete family’.

Government’s stance

• Same-sex couples and live-in partners are excluded from surrogacy and assisted reproduction laws to avoid ‘misuse.’
• The welfare of the child should be prioritized over any notions of equality among prospective parents or couples.
• No special provisions or additional rights have been granted to same-sex couples and live-in partners despite the decriminalization of their relationships.

Why in news?

• The government’s perspective is not in tune with several Supreme Court judgments that long live-in relationships “presume” marriage.
• Live-in partners are not bound by law, and the safety of the child born through surrogacy cannot be guaranteed.

Judiciary in support

• Same-sex couples are fighting for their right to marry and raise a family as equal parents.
• CJI heading the Constitution Bench, has remarked that same-sex couples could offer as stable and loving a home, if not better, to children as heterosexual married parents.

Distinct features of the Surrogacy (Regulation) Act, 2021

• Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

1. A close relative of the intending couple;
2. A married woman having a child of her own;
3. 25 to 35 years old;
4. A surrogate only once in her lifetime; and
5. Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

Basis of the Petition: Right to Reproductive Autonomy

• The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
• Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Other issues with Surrogacy Law

• Medical issue necessity: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
• Widow/Divorced: Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• One child obligation: Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
• Genetic relation obligation: The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.

 

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Central Idea

• The Chief Justice of India has questioned why a 23-year-old Constitution Bench judgment was not shown to the Manipur High Court, which directed the state government to consider the inclusion of Meetei/Meitei community in the Scheduled Tribe list.
• The Chief Justice observed that a High Court does not have the power to direct changes in the Scheduled Tribes List, as it is a Presidential power to designate a Scheduled Caste or Scheduled Tribe.

What is the Scheduled Tribes List?

• Article 342(1) of the Constitution states that it is entirely the President’s power to designate a Scheduled Caste or Scheduled Tribe.
• It is not open to State governments, courts, tribunals, or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.
• A notification issued under clause (1) of Article 342 can be amended only by law to be made by Parliament.

Notable Judgements:

(1) The State of Maharashtra vs. Milind verdict

• The five-judge Constitution Bench in State of Maharashtra versus Milind, in November 2000, held that a notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.
• Any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes only by Parliament by law and by no other authority.

(2) FCI vs. Jagdish Balaram Bahira

• The settled law in the Milind verdict was referred to by a July 2017 judgment authored by Justice Chandrachud for a three-judge Bench of the Supreme Court in CMD, FCI versus Jagdish Balaram Bahira to note that the Presidential Order under Article 342 regarding Scheduled Tribes was always “final”.

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Back2Basics: Scheduled Tribes

• The term ‘Scheduled Tribes’ first appeared in the Constitution of India.
• Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
• Article 342 prescribes procedures to be followed in the matter of specification of scheduled tribes.

• Among the tribal groups, several have adapted to modern life but there are tribal groups who are more vulnerable.
• The Dhebar Commission (1973) created a separate category “Primitive Tribal Groups (PTGs)” which was renamed in 2006 as “Particularly Vulnerable Tribal Groups (PVTGs)”.

How are STs notified?

• The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned.
• These orders can be modified subsequently only through an Act of Parliament.

Status of STs in India

• The Census 2011 has revealed that there are said to be 705 ethnic groups notified as Scheduled Tribes (STs).
• Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas.
• The STs constitute 8.6% of the population and 11.3% of the rural population.

 

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Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.

Background Information

• Death by hanging is a mode of execution in India.
• In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
• A petition was filed challenging the constitutionality of death by hanging as a mode of execution.

Death Sentences imposed so far

• 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
• In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
• Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
• Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
• From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
• In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.

Death Penalty by Hanging: Present Status

• Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
• In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.

• In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
• The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.

Various initiatives to alter death by hanging

• Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
• Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
• Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
• Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.

Concerns raised by Judiciary

• The Chief Justice had observed that better data was needed to relook at death by hanging.
• The court wanted to know the-

1. Impact of the sentence of death by hanging
2. Pain caused
3. Period of actual death, and
4. Availability of resources for hanging a person

Judiciary at loggerheads

• The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
• The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

Debate over Death Penalty

Arguments in favor of death penalty	Arguments against death penalty
– Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.	– Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
– Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.	– Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
– Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.	– Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
– Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.	– Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
– Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.	– Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
– Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.	– Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
– Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.	– Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.

 

Other issues with such executions

(a) Socio-Economic Factors

• The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
• The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
• These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

(b) Delayed Execution

• The law provides for a long process before the execution of the convicts actually takes place.
• The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
• Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

Way forward: Law Commission recommendations on death penalty

The Law Commission of India in its 262^nd Report (August 2015) recommended that:

• Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
• Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
• It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

 

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