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Religion-Based Reservation In India: A Comprehensive Analysis

ABSTRACT
Religion-based reservations in India are a pivotal yet ambivalent ingredient of the affirmative action policies of the nation. This article seeks to provide an assiduous analysis of the legal framework, historical context, judicial interpretations, and socio-political implications associated with religion-based reservations in India. By dissecting the constitutional provisions, landmark court judgments, and the intricate relationship between religion and caste, this article aims to shed light on the altercations and intricacies that permeate this aspect of Indian affirmative actions. The affirmative action policies of India, designed to promote social equality and address historical injustices, include the reservations in education and employment for the marginalized communities. While caste-based reservations are widely recognized, religion-based reservations are more tendentious and obscure. The Constitution of India, lays the cornerstone for these policies, aspiring to uplift socially and educationally backward classes. The religion-based reservations can aggravate the communal agitation and undermine the principles of secularism exalted in the Constitution of India. The religion-based reservations in India represent a complex convergence of legal, historical, and socio-political factors. This article ventures to provide a nuanced understanding of these reservations, highlighting the ongoing debates and the need for a balanced approach to affirmative action that addresses the divergent realities of the marginalized communities of India.

Keywords: Religion-Based Reservation, Affirmative Action Policies, Constitution of India, Social Equality, Scheduled Castes, Scheduled Tribes, Sachar Committee Report, Ranganath Mishra Commission Report, Caste-Based Reservations, Meritocracy, Constituent Assembly, British Colonial Administration, National Commission for Backward Classes Act, Communal Agitation, Political Mobilization.

INTRODUCTION
The affirmative action policies of India aspire to promote social justice by ensuring reservations in education, employment, and political portrayal for historically marginalized communities. Conventionally, the caste-based reservations have been the prime focus of these policies. However, the inclusiveness of the religion-based reservations has blazed substantial discourse, taking into consideration various legal, historical, and socio-political dimensions. Earlier, the reservation system of India was formulated to enliven Scheduled Castes (SCs) and Scheduled Tribes (STs), communities that have undergone severe social and economic discrimination. This policy, revered under the provisions of the Constitution of India, provides these communities with a fixed percentage of seats in educational institutions, government jobs, and legislative bodies. The vindication behind the caste-based reservations lies in addressing the ingrained social hierarchies and providing equal opportunities to those marginalized communities by the caste system. In contrast, the religion-based reservations have a different emergence. The British Colonial administration first introduced separate electorates for Muslims and other religious communities in the early 20th Century, aspiring to address the distinct socio-economic conditions of these groups. Post-Independence, India witnessed the continuation of special provisions for religious minorities, especially in the realm of education and cultural rights, though not through explicit reservations like those of the SCs and STs.

The contemporary koreroes on the religion-based reservations centres around the Muslim community, which, according to various government reports, lags in socio-economic indicators such as literacy, employment, and income levels. The Sachar Committee Report,2006[1] and the Ranganath Mishra Commission Report, 2007[2] illuminated the need for the affirmative action to uplift Muslims, recommending measures including the reservation in educational institutions and public sector employment. Legally, the issue of religion-based reservations is contentious. The Constitution of India prohibits the discrimination based on religion and guaranteed equality before the law. However, it also allows the state to make special provisions for the advancement of socially and educationally backward classes. While caste-based reservations have been upheld by the Supreme Court of India under these provisions of the constitution, extending similar reservations to religious minorities raises complex constitutional questions.
Socio-politically, the religion-based reservations evoke strong reactions. Proponents assert that they are essential for achieving true social justice, as religious minorities, especially the Muslim communities face systematic discrimination and exclusion. Critics, however, assert that the reservations should be based solely on socio-economic criteria rather than religious identity, apprehending that the religion-based reservations could deepen communal divisions. The debate over the religion-based reservations in India reflects broader concerns about social justice, secularism, and national unity. As India continues to scuffle with issues of inequality and discrimination, the challenge lies in framing policies that balance the need for affirmative action with the principles of equality and secularism. This requires a nuanced understanding of the socio-economic realities of all disadvantaged communities, ensuring that affirmative action serves as a tool for genuine social transformation rather than political practically.

HISTORICAL CONTEXT
The concept of reservations in India has its roots in the pre-independence era, with the British Colonial Administration executing the various measures to address social inequalities among the different communities. One of the vital legislative watersheds in this context was the Government of India Act, 1935[3]. This Act introduced a system of reservations in legislative assemblies for Scheduled Castes (SCs) and the Scheduled Tribes (STs), recognizing the profound social discrepancies and striving to provide these marginalized communities with a veneer of portrayal and voice in governance. As India transitioned to Independence, the framers of the Constitution of India faced the extensive task of crafting a new legal and social framework for a diverse and stratified society. The cogitation within the Constituent Assembly were rigorous and panoramic, focusing on how best to elevate the communities that had been historically oppressed and marginalized. The korero was remarkably centered on caste-based discrimination, which was recognized as a more ubiquitous and ingrained issue compared to religious discrimination.

The decision to focus primarily on caste rather than religion in the context of reservations was influenced by several factors. First, caste-based discrimination had been a deeply rooted societal issue for centuries, significantly affecting the social dynamics, economic opportunities, and political participation. The rigid hierarchical structure of the caste system had resulted in systematic exclusion and exploitation of lower castes, particularly the SCs and the STs. In contrast, while religious minorities faced discrimination, the nature and extent of their marginalization were different and less uniformly pervasive across all aspects of life compared to the caste system. Dr. B.R. Ambedkar, a prominent member of the Constituent Assembly and an ardent advocate for the rights of the oppressed, was instrumental in shaping the discourse on reservations. He emphasized the need for affirmative action to rectify historical injustices and provide equal opportunities to the SCs and STs. The Constituent Assembly Debates unveil that there was broad consensus on the need for such measures, though the specifics were debated rigorously. The resulting provisions in the Constitution of India were designed to ensure that the SCs and STs received adequate representation in legislative bodies, educational institutions, and public sector employment. Article 15 and Article 16 of the Constitution of India explicitly prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth and allow the affirmative action for SCs, STs, and other socially and educationally backward classes. Furthermore, Article 46[4] directs the state to promote the educational and economic interests of the SCs, STs and OBCs.
Over the years, the policy of reservations has evolved and expanded. The [5]Mandal Commission Report, 1980[6], which recommended reservations for the OBCs, was a significant development in this trajectory. This inclusion was based on the recognition that caste-based inequalities extended beyond the SCs and STs and that many other communities also faced systematic disadvantages. The concept of reservations in India, deeply embedded in the historical context of British Colonial Policies and Post-Independence constitutional debates, he has been a critical tool in addressing social inequalities. The primary focus on caste rather than religion was a strategic decision rooted in the understanding that caste-based discrimination was more pervasive and structurally entrenched. This framework aimed to ensure that historically oppressed communities received the support needed to achieve socio-economic parity and genuine inclusion in the democratic process.

LEGAL PROVISIONS
Constitutional Provisions:
The Constitution of India lays out a comprehensive framework for affirmative action to promote social equality and uplift the disadvantaged groups. This framework is primarily enshrined in several key articles:

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth[7] 

Article 15(4) – This provision empowers the state to create special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Article 15(5) – This provision empowers the state to create special provisions, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes in matters of admission to educational institutions, inclusive of the private institutions, whether aided or unaided by the State.

Article 16: Equality of opportunity in matters of public employment[8]

Article 16(1) – This provision guarantees equality of opportunity of all citizens in matters relating to employment or appointment to any office under the state.
Article 16(2) – This provision prohibits the discrimination on grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them.
Article 16(4) – This provision permits the State to make provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the state.
Article 16(4A) – This provision provides reservation in matters of promotion to any class or classes of posts in the services under the state in favour of the SCs and STs.

Article 29: Protection of interest of minorities[9]

Article 29(1) – This provision guarantees the right of any section of the citizens residing in the territory of India or any part thereof having a distinct language, script, or culture of its own to conserve the same.
Article 29(2) – This provision prohibits the denial of admission to educational institutions maintained by the State or receiving aid out of the State funds on grounds of religion, race, caste, language, or any of them.

Article 30: Right of Minorities to establish and administer educational institutions[10]

Article 30(1) – This provision grants all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice.
Article 30(2) – This provision prohibits the State from discriminating against any educational institution managed by a minority in granting aid.

Article 46: promotion of educational and economic interests of Scheduled Castes and Scheduled Tribes, and other weaker sections[11]

This provision mandates the State to promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation.

Article 341: Scheduled Castes

Article 341(1) – This provision empowers the President to specify the castes, races, or tribes which shall be deemed to be Scheduled Castes.
Article 341(2) – This provision empowers the Parliament to include or exclude any caste, race, or tribe from the list of Scheduled Castes.

Article 342: Scheduled Tribes

Article 342(1) – This provision empowers the President to specify the tribes or tribal communities which shall be deemed to be Scheduled Tribes.
Article 342(2) – This provision empowers the Parliament to include or exclude any tribe or tribal communities from the list of Scheduled Tribes.

Statutory Provisions:
The statutory provisions governing the reservations in India play a crucial role in identifying and classifying communities eligible for affirmative action. The statutes collectively from the backbone of the efforts of India to address the historical inequities and promote social justice.

The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956[12]
This Act provides the detailed list of communities recognized as Scheduled Castes and Scheduled Tribes.
The National Commission for Backward Classes Act, 1993[13]
This Act establishes the National Commission for Backward Classes to examine the inclusion of any class of citizens as a backward class and hear complaints of over-inclusion or under-inclusion of any backward class.
The Constitution (Scheduled Castes) Order, 1950[14]
This Act specifies which castes are recognized as Scheduled Castes, initially limited to Hindus but later extended to include Sikhs and Buddhists.

JUDICIAL INTERPRETATIONS
State of Madras Vs. Champakam Dorairajan (1951)[15]
The Supreme Court, in this landmark judgment, struck down a government order that provide caste-based reservations in educational institutions, emphasizing that it is violative of the Article 29(2) of the Constitution of India, which prohibits the denial of admission into the educational institutions maintained by the State or receiving State aid on grounds religion, race, caste, language, or any of them. Although the case primarily dealt with the caste-based reservations, it set a precedent for examining reservations through the lens of constitutional equality principles. This decision indirectly impacted the discourse on the religion-based reservations by illuminating the need for constitutional amendments to explicitly permit affirmative action policies.

M.A. Pai Foundation Vs. State of Karnataka (2002)[16]
This judgment significantly impacted the religion-based reservations by reinforcing the rights of the minority educational institutions under Article 30(1) of the constitution. The Supreme Court held that these institutions, whether based on religion or language, have the right to establish and administer educational institutions of their choice. While this case did not directly address reservations, it rather confirmed that minority institutions could have their own admission policies, which would include reservations for students from their communities. This autonomy ensures that religious minorities can promote education within their communities without excessive state interference.
A. Inamdar Vs. State of Maharashtra (2005)[17]
In this case, the Apex Court of India, clarified the extent to which private unaided minority institutions could implement reservation policies. The court ruled that the state could not impose its reservation policies on unaided private minority institutions, reaffirming their autonomy under Article 30(1) of the Indian Constitution. This decision underscores the principles that while state policies can promote affirmative action, they must respect the rights of minority institutions to manage their own affairs, inclusive of the admissions, thereby indirectly affecting how religion-based reservations can be applied.

Balaji Vs. State of Mysore (1962)[18]
This case is relevant for the caste-based reservation’s interpretation of “socially and educationally backward classes.” The Apex Court of India ruled that the caste could not be the sole criterion for identifying backward classes, suggesting that economic and other social indicators must also be considered. This broader interpretation has implications for religion-based reservations, implying that merely belonging to a particular religion does not automatically confer the backward classes, other socio-economic factors must be evaluated.
Stephen College Vs. University of Delhi (1991)[19]
The Supreme Court, in this case, dealt with the admission policies of the St. Stephen College, a Christian Minority Institution. The court held that the minority institutions have the right to admit a certain percentage of students from their community but must also admit students based on merit from other communities. This decision balanced the right of minority institutions to administer their affairs while ensuring that their policies did not entirely exclude non-minority students, thus, addressing concerns related to religion-based reservations in minority institutions.

Anil Kumar Gupta Vs. State of Uttar Pradesh (1995)[20]
In this case, the reservations for economically and socially backward classes, inclusive of the Muslims, in the context of admissions to technical institutions, were addressed. The Supreme Court of India, upheld the policy of the State of providing the reservations for the backward classes among the religious minorities, provided that the criteria for backwardness were met. This judgment affirmed that the religion-based reservations are constitutionally permissible if they are based on criteria of social and educational backwardness and do not exceed the overall reservation limit set by the court.

The judicial interpretations of religion-based reservations in India reflect a nuanced approach, balancing the rights of the minorities with constitutional principles of equality and non-discrimination. These judgments emphasize that while reservations can be an effective tool for uplifting marginalized religious communities, they must be implemented within the framework of the Constitution of India, ensuring that criteria for backwardness are met and overall societal balance is maintained.

SOCIO-POLITICAL IMPLICATIONS
Proponents of the religion-based reservations argue that such measures can help integrate the marginalized religious communities into the mainstream. By the provision of educational and employment opportunities, reservations can uplift socio-economically disadvantaged groups, leading to better representation in various sectors. This inclusivity can reduce social alienation and foster a sense of belonging among marginalized communities, contributing to communal harmony. Religion-based reservations aim to address historical injustices and socio-economic disadvantages faced by specific religious groups, the state acknowledges an attempt to rectify these persisting inequities, promoting social cohesion and reducing inter-community disparities.

The controversy over religious-based reservations in India, sparked by Andhra Pradesh’s 4% reservation for certain Muslim Communities being struck down and West Bengal’s proposal for a 10% reservation for economically and socially backward Muslims. The Indian Constitution prohibits discrimination based on religion but allows affirmative action for socially and educationally backward classes. While some Muslim Communities benefit from OBC reservations, many are executed. Historical and systematic discrimination against Muslims in Government jobs and education persists, with internal community divisions complicating the push for equitable reservations[21]. In Karnataka, Home Minister Amit Shah emphasized that the Constitution of India does not permit reservations based on religion. This statement was made by the Home Minister in response to the promise of the Congress Party to restore the 4% reservation for Muslims in the state if elected. The Home Minister reiterated that reservations could only be granted based on social and educational backwardness, not religious identity. The controversy arose from differing interpretations of Constitutional provisions related to affirmative action, blazing the debates on how best to address the needs of marginalized communities within the framework of the law[22].
Prime Minister, Narendra Modi and other BJP leaders have criticized the congress for attempting to allocate reservations to Muslims, asserting that it undermines the Constitutional framework which allows reservations based on social and educational backwardness, not religion. Several Muslim Communities are included in the OBC reservations at both central and state levels. The inclusion is based on Article 16(4) of the Constitution, which allows reservations for any backward class of citizens that is not adequately represented in public services. The third Backward Class Commission, led by Justice O. Chinnappa Reddy, identified Muslims as educationally and socially backward, a finding echoed by the 2006 Sachar Committee Report. In Karnataka, the BJP Government abolished a 4% reservation for Muslims within the OBC category, redistributing it to dominating Hindu castes. This move was criticized as it categorized Muslim based on social and economic studies, not religion. The Supreme Court has described the decision of the Government as “Shaky and Flawed.” In Andhra Pradesh, Muslims benefit from OBC quotas without encroaching on the existing OBC reservations, through a separate category known as BC-E. Past attempts by the state to implement 5% quota for Muslims were struck down by the High Court for not following proper procedures and exceeding the 50% reservation ceiling of the Supreme Court of India. The issue remains unresolved as it awaits a Supreme Court hearing. The Dalit Muslim have also sought inclusion under the Scheduled Caste quota. However, the Central Government has opposed this, citing the distinguished origins of Islam and Christianity compared to Hinduism, Sikhism, and Buddhism. The matter is pending the findings of a commission of inquiry. The issue of Muslim reservations highlights the ongoing tension between religious identity and constitutional mandates for social justice in India’s complex socio-political landscape[23].
At a rally in Telangana, PM Modi rejected the Claims of the Congress that the BJP would alter the Constitution and abolish reservations, vowing not to give Dalit, Adivasi, and OBC quotas to Muslim based on religion. He accused Congress of historical appeasement by granting reservations to Muslims in undivided Andhra Pradesh and criticized the party’s alleged disrespect for the Constitution[24]. PM Modi emphasized that reservations cannot be based on religion and vowed to prevent the congress from reallocating SC, ST, and OBC quotas to Muslim. He clarified that while he supports reservations for the poor across all religions, he opposes religion-based reservations. The constitution prohibits such allocations, although some states have implemented quotas for Muslim[25].
Religion-based reservation can become a significant tool for political parties to mobilize support from specific religious communities. Parties often use promises of reservations to garner votes, particularly in regions where certain religious groups constitute a significant portion of the electorate. Such reservations can lead to the rise of community-based politics, where political leaders and parties cater to the specific needs and demands of religious communities. This can result in the formation of vote banks, where communities consistently support parties that advocate for their interests. While this can empower marginalized groups, it also risks entrenching identity politics, where religious identity becomes a primary criterion for political allegiance and policy making. Political mobilization around religion-based reservations can influence broader policy decisions. Governments, responding to the electoral pressures, may enact or promise policies favouring specific religious communities. This dynamic can lead to significant legislative and administrative changes, impacting the overall governance framework. Religion-based reservations are often seen to promote social justice by providing opportunities to historically marginalized communities. However, critics argue that these reservations might dilute the principle of meritocracy, where positions and opportunities are based solely on individual merits. This tension between social justice and meritocracy is a central debate in the discourse on reservations. Critics also assert that the reservations based on the religion can exacerbate communal tensions. If perceived as preferential treatment, such policies might lead to resentment among other communities, potentially causing social unrest.

ANALYSIS AND SUGGESTION
The legal framework governing the religion-based reservations in India is intricate. While the Constitution permits affirmative action for socially and educationally backward classes, reservations based on the religion pose challenges due to constitutional mandates against the religious discrimination. Judicial interpretations have attempted to balance the need for social justice with constitutional principles, but ambiguity remains regarding the extent to which reservations can be extended to religious minorities. The historical evolution of reservations reflects the complex socio-political landscape of India. While caste-based observations have been predominant, the inclusion of religion-based reservations has blazed significant discourse.

There is a need for clarity concerning the interpretation of constitutional provisions related to the affirmative actions. Judicial pronouncements should provide clear guidelines on the permissibility and limitations of religion-based reservations, ensuring alignment with constitutional principles of equality and non-discrimination. Policymakers must rely on empirical data and evidence to identify socially and educationally backward communities, including religious minorities. Comprehensive studies, like the Sachar Committee Report, can provide insights into the socio-economic status of religious minorities and inform targeted interventions. Reservations should be implemented within a balanced framework that considers both social justice imperatives and the principles of meritocracy. While affirmative action is essential for addressing historical injustices, reservations should not compromise merit-based selection processes. Enhancing public awareness about the rationale and implications of affirmative action policies is crucial for fostering societal understanding and support. Political leaders must demonstrate ethical leadership by refraining from exploiting reservations for narrow electoral gains. Instead, they should prioritize the long-term interests of all communities and uphold the principles of constitutionalism and secularism.

CONCLUSION
Religious-based reservations in India represent a complex interplay of legal, historical, and socio-political factors. These reservations have profound implications for the affirmative action policies, social dynamics, and political landscape of the nation. The historical context unveils the evolution of reservations from the colonial policies to post-independence constitutional provisions. While caste-based reservations have been the primary focus, the inclusion of religion-based reservations has blazed significant discourse. This inclusion stems from the recognition of socio-economic disparities among religious minorities, particularly Muslims, and the need for targeted interventions to address them. Legally, religion-based reservations pose challenges due to constitutional mandates against discrimination on religious grounds. While affirmative actions for socially and educationally backward classes is permitted, extending reservations to religious minorities requires nuanced interpretation and adherence to constitutional principles. Judicial interpretations, as evidenced by landmark cases, underscore the delicate balance between promoting the social justice and upholding constitutional mandates. The role of the judiciary in ensuring that the reservations align with the constitution while addressing socio-economic disparities is crucial for maintaining fairness and equity. Socio-politically, religion-based reservations evoke strong reactions. Recent socio-political developments, such as the controversies over the Muslim reservations in states like Andhra Pradesh and Karnataka, illustrate the complexities surrounding religion-based reservation. While there is recognition of the socio-economic backwardness of certain religious communities, the implementation of reservations must navigate constitutional constraints and political realities. The religion-based reservations in India represent a nuanced and contentious aspect of affirmative action policies. Balancing the objectives of social justice, equality, and communal harmony requires a multi-dimension approach that considers legal, historical, and socio-political factors. As India continues its journey towards inclusive development, it must strive to address the diverse needs of marginalized communities while uploading the principles of secularism and constitutionalism. Only through careful deliberations and inclusive policymaking can India achieve genuine social transformation and harmony for all its citizens.

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Written By – Sruti Sikha Maharana

References:

[1]https://www.minorityaffairs.gov.in/WriteReadData/RTF1984/7830578798.pdf

[2]https://www.mha.gov.in/sites/default/files/RanganathMishraVol_I_22102019_0.PDF

[3]https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf

[4]https://www.education.gov.in/directive_principles_of_state_policy_article-46

[5]https://www.ncbc.nic.in/Writereaddata/Mandal%20Commission%20Report%20of%20the%201st%20Part%20English635228715105764974.pdf

[6]https://www.ncbc.nic.in/Writereaddata/Mandal%20Commission%20Report%20of%20the%202nd%20Part%20%20English635228722958460590.pdf

[7]https://indiankanoon.org/doc/609295/#:~:text=Prohibition%20of%20discrimination%20on%20grounds,birth%20or%20any%20of%20them.

[8] https://indiankanoon.org/doc/211089/

[9] https://indiankanoon.org/doc/1888152/

[10] https://indiankanoon.org/doc/1983234/

[11] https://www.education.gov.in/directive_principles_of_state_policy_article-46

[12] https://tribal.nic.in/downloads/CLM/CLM_1/3.pdf

[13] https://indiankanoon.org/doc/637725/

[14]https://socialjustice.gov.in/writereaddata/UploadFile/CONSTITUTION%20(SC)%20ORDER%201950%20dated%2010081950.pdf

[15] https://indiankanoon.org/doc/149321/

[16] https://indiankanoon.org/doc/512761/

[17] https://indiankanoon.org/doc/1390531/

[18] https://indiankanoon.org/doc/599701/

[19] https://indiankanoon.org/doc/1545248/

[20] https://indiankanoon.org/doc/1055016/

[21] https://economictimes.indiatimes.com/reservation-on-basis-of-religion/articleshow/5605613.cms?from=mdr

[22] https://www.hindustantimes.com/india-news/amit-shah-in-karnataka-no-provision-in-constitution-to-provide-reservation-on-basis-of-religion-amit-shah-101679821060412.html

[23] https://www.thehindu.com/news/national/understanding-how-muslims-get-reservations-in-india/article68104933.ece

[24] https://www.ndtv.com/india-news/no-religion-based-reservations-to-muslims-till-i-am-alive-pm-modi-5560272

[25]https://www.firstpost.com/explainers/lok-sabha-polls-religion-based-reservation-pm-narendra-modi-constitution-13768047.html

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Supreme Court Directs the High Court to Re-examine Employee Regularization Dispute: Requested the High Court to Expedite the Prolonged Litigation

Case Title – Solapur Municipal Corporation Vs. Shankarrao Govindrao Patil & Ors. Etc. 2024 INSC 423

Case Number – Civil Appeal No. 9127-9132/2018 with Civil Appeal No. 9133/2018

Dated on – 15th May, 2024

Quorum – Justice Sanjay Kumar

FACTS OF THE CASE
In the case of Solapur Municipal Corporation Vs. Shankarrao Govindrao Patil & Ors. Etc. 2024 INSC 423, the Solapur Municipal Corporation, herein the Appellant, instituted six appeals against a judgment dated 31st of July, 2013, passed by a Division Bench of the High Court of Judicature at Bombay, which allowed the Writ Petition Nos. 197/2012, 2011/2003 and 2432/2003. The decision of the High Court recognized the Respondents, former employees of Majarewadi Gram Panchayat (merged with the Solapur Municipal Corporation), as having been absorbed by the corporation from the 5th of May, 1992 and entitled to regular service benefits. A subsequent order dated 8th of August, 1992 dismissed the review petitions filed by the Corporation. Another writ petition, W.P. No. 2463/2010, followed the same judgment, and the Corporation instituted a Civil Appeal No. 9133/2018 against this decision.

ISSUES
The main issue of the case whirled around whether the Respondents, employees of Majarewadi Gram Panchayat, were regular employees entitled to absorption by Solapur Municipal Corporation from the date of the merger on the 5th of August, 1992?

Whether the services of the Respondents from the dated 5th of May, 1992 to 1st of February,2003 should be treated as a regular service with the Corporation?
Whether the Respondents were entitled to service and retirement benefits based on the claim that their service should be deemed regular from the merger date?

LEGAL PROVISIONS
Section 493(5)(C) of the Bombay Provincial Municipal Corporations Act, 1949 stated that all officers and servants in the employ of the said municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under this Act and shall, until other provision is made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service to which they were entitled or subject on such date

Section 493 of the Bombay Provincial Municipal Corporations Act, 1949 prescribes the Continuation of appointments, taxes, budget estimates, assessments, etc.
Article 136 of the Constitution of India prescribes the Special Leave to appeal by the Supreme Court

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the Respondents were daily wage workers until the 1st of February, 2003 and not regular employees from the 5th of May, 1992.

The Appellant referred to a corporation resolution dated 31st of August, 2002, which made the 300 employees permanent only from the date of government approval i.e., the 25th of March, 2003 and clarified that the arrears for earlier periods were not permissible.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that they were regular employees of Majarewadi Gram Panchayat before the merger, thereby entitling them to regularization from the 5th of May, 1992 under Section 493(5)(C) of the Bombay Provincial Municipal Corporations Act, 1949.

A resolution was produced by the Respondents from the Majarewadi Gram Panchayat dated 20th of March, 1992, indicating the permanent appointments of employees from the 31st of March, 1992 and individual appointment orders as proof of their regular employment status.
It was asserted that their service from the merger date till their regularization in 2003 should be considered continuous and regular, thus entitling them to full-service benefits.

COURT ANALYSIS AND JUDGMENT
The court in the case of Solapur Municipal Corporation Vs. Shankarrao Govindrao Patil & Ors. Etc. 2024 INSC 423, examined the Section 493 of the Bombay Provincial Municipal Corporations Act, 1949, especially the clause 5(C) in Appendix IV, which addresses the continuation of appointments and conditions of service for employees of merged municipalities. The court observed the new documentary evidences furnished by the Respondents, inclusive of the resolutions and appointment orders, which were not previously considered by the High Court. The court observed that the High Court had based its judgment on an affidavit and the sanction of 300 posts but did not have the opportunity to scrutinize the new judgments. The Supreme Court allowed the appeals, set aside the judgment of the High Court dated 31st of July, 2013 and the 8th of August, 2014 and remanded the matter to the High Court for reconsideration of the new documents. The court permitted both the parties to submit further documentary evidence. The High Court was requested to prioritize and expedite the case, taking into consideration the prolonged nature of the litigation. Each party was to bear its own cost and all pending applications were disposed of.

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Judgement Reviewed by – Sruti Sikha Maharana
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Delhi High Court Upholds NRAI’s Amended Criteria for Paris Olympic Selection Trials: Justified Manini Kaushik’s Exclusion Based on the NRAI’s Criteria

Case Title – Manini Kaushik Vs. The National Rifle Association of India & Ors.

Case Number – W.P. (C) 5438/2024 & CM APPL. 22456/2024

Dated on – 15th May, 2024

Quorum – Justice Subramonium Prasad

FACTS OF THE CASE
In the case of Manini Kaushik Vs. The National Rifle Association of India & Ors., the Appellant sought a directive from the court to allow her to participate in the Paris Olympic Selection Trials for the 50-metre Rifle 3 Position Women Category. These trials were scheduled to be held in New Delhi and Bhopal in April and May, 2024, respectively. The Appellant had participated in various domestic and international competitions in the 50-metre Rifle 3 Position Women Category. Notably, she was a part of the team that won a Silver Medal at the Asian Games 2022 in Hangzhou, China.  The NRAI had established the criteria for the selection of the Olympic Shooting Teams in October, 2022. In November, 2023, the NRAI amended the selection criteria and further added conditions for eligibility. The Appellant asserted that had the original 2022 criteria been followed, she would have been eligible for the selection trials as other higher-ranked shooters did not have the requisite QROG points. The NRAI justified the amended criteria due to the changes in the ISSF calendar, which allowed more events and opportunities for athletes to qualify and claimed that the amendments were publicized in November, 2023, giving athletes ample time to prepare. Further, they declined the request of the Appellant for reconsideration of her trial scores and highlighted that she did not participate in the events that could have improved her ranking. During the initial hearing, the court issued a notice and sought instructions from the NRAI about allowing the Appellant to participate in the trials, however, NRAI expressed it inability to accommodate the Appellant, aggrieved of which, the Appellant approached the Delhi High Court.

ISSUES
The main issue of the case whirled around whether the amendment to the selection criteria by the NRAI in November, 2023 justifiable and reasonable, especially after the original criteria was already set in October, 2022?

Whether the Appellant would have been allowed to participate in the Paris Olympic Selection trials despite the changes in the Selection Criteria and whether the change in the rules of the game unfairly disadvantages the Appellant?
Whether the NRAI was transparent in its communication about the amended criteria, and whether it provided adequate notice to all the athletes, inclusive of the Appellant, to allow them to adapt and meet the new requirements?
Whether the decision of the NRAI regarding not sending the Appellant to the 2024 ISSF Final Qualification Championship in Rio De Janeiro reasonable, given that the maximum quota positions for India had already been achieved?
Whether there was any evidence of favouritism or unfair advantage given to other athletes who were selected for the trials despite having lower QROG points than the Appellant?

LEGAL PROVISIONS
Article 226 of the Constitution of India prescribes the Power of the High Court to issue writs

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the amendment of the NRAI for the selection criteria in November, 2023 was unfair and amounted to changing the rules of the game after it had already begun and that this change disadvantaged the Appellant as it altered the eligibility requirement she had initially aimed to meet.

The Appellant emphasized that her national ranking according to the QROG points was 4th, which was higher than some of the selected athletes like Nischal and Shriyanka Sadangi and that this should have made her eligible for the selection trials under the original criteria.
The Appellant asserted that if the original 2022 criteria had been followed, she would have been among the top five eligible shooters for the trials since other higher-ranked shooters lacked the necessary QROG points.
Further, the Appellant contented that her exclusion from the 2024 ISSF Final Qualification Championship in Rio De Janeiro prevented her from potentially winning a quota for herself or improving her QROG ranking which utterly disadvantaged her.
The Appellants asserted that her request for considering Trial 3 as a zero score trial was unfairly declined by the NRAI, affecting her overall ranking and eligibility.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that the amendment of the selection criteria was necessitated by changes in the ISSF calendar, which extended the deadline for qualifying events and increased the number of opportunities for athletes to improve their rankings.

The Respondent asserted that the amended criteria aimed to increase the pool of participants in the selection trials, thereby selecting the best athletes from a larger group and that it was done in good faith to enhance the quality of the team.
The Respondent maintained that the amended criteria were uploaded on their website and circulated amongst all the athletes, inclusive of the Appellant, in November,2023, providing sufficient notice for them to prepare and adapt and that it was done in good faith and not on any capricious ground, thus, it isn’t considered unfair.
It was stated that India had already achieved the maximum number of quota positions allowed for the Paris Olympic, making it unnecessary to send additional athletes, inclusive of the Appellant, to the ISSF Final Qualification Championship in Rio De Janeiro and that the athlete selected for the trial, inclusive of those with a lower QROG ranking than the Appellant, had higher national rankings overall which justified their inclusion over the Appellant.
Moreover, the selection criteria were developed by the experts in the field and were not perverse and that the criteria were designed to select the best athlete for the country’s representation at the Olympics.

COURT ANALYSIS AND JUDGMENT
The court in the case of Manini Kaushik Vs. The National Rifle Association of India & Ors., reviewed the original 2022 criteria and the amended 2023 criteria for the selection of athletes for the Paris Olympic selection Trials and observed that the 2023 amendments were introduced by the NRAI in response to the changes in the ISSF calendar, which extended the deadline for qualifying events and allowed more opportunities for the athlete to qualify. The court observed that the 2023 criteria were established in good faith and aimed to increase participation and competition amongst the athletes and that the amendments were deemed reasonable as they intended to select the best athletes from a larger pool, aligning with the objectives of the NRAI to enhance the quality of the team representing India. The court stressed on the fact that the selection criteria were developed by experts in the field of shooting sports and reiterated that the judicial intervention in such expert-driven decisions is limited unless the criteria are shown to be perverse or unreasonable. The court accepted the argument of the Respondent that the amended criteria were publicly disclosed in November, 2023, providing sufficient notice to all the athletes, inclusive of the Appellant and that the lack of timely adaptation to the new criteria by the Appellant was not attributed to any fault on the part of the NRAI. The court acknowledged that the QROG ranking of the Appellant was higher than some selected athletes, however, the court observed that the overall national ranking, which was also a factor in the amended criteria, justified the selection of those athletes over the Appellant. The court supported the NRAI’s rejection of the request of the Appellant to consider her trial 3 score as zero, as the request was made after the deadline had passed stating it as not unfair disadvantage to the Appellant. The court established that the NRAI was not arbitrary and thus did not warrant judicial interference. Thus, the application of the Appellant along with any pending applications were dismissed.  

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Judgement Reviewed by – Sruti Sikha Maharana

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CRITIQUE OF THE REPRODUCTIVE RIGHTS OF WOMEN VIŚ-A-VIŚ THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY ACT, 2021

Abstract
This article provides a critical analysis of the intersection between the reproductive rights of a woman and two key pieces of the legislation, i.e., the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology Act, 2021. This article, by thorough analysis of the legislative framework of both the acts, seeks to evaluate the impact on the reproductive autonomy of the woman, address the ethical concerns related to surrogacy and assisted reproductive technologies, current societal perspectives, and identify socio-legal challenges in implementing these regulations. These laws aspire to shield the rights and interests of all the parties involved in the practices, inclusive of the intended parents, the surrogate mothers, and the children born through such procedures. However, there is a requirement to address the complex ethical considerations and practical challenges in the implementation of these regulations. By highlighting such challenges, this article aspires to inform the stakeholders about the practical implications of these regulations and pave the way for discussions on the plausible solutions. Through critical analysis, this article focuses on contributing to the discourse on reproductive rights and assist in shaping future legislative efforts in this domain. The Surrogacy (Regulation) Act,2021 and the Assisted Reproductive Technology Act, 2021, represent notable watershed in the legal regulation of the surrogacy and the ART procedures in India.

Keywords – Reproductive Rights, Surrogacy, Assisted Reproductive Technology, Legislation, Women’s Autonomy, Ethical Consideration, Societal Perspective, Socio-Legal Challenges. 

Introduction
The Surrogacy (Regulation) Bill[1], first introduced in the Lok Sabha on 15th of July, 2019, was sent to a select committee and après a through revision of the Bill, the report was proposed before the standing committee on the 5th of February, 2020. Later, during the year 2021, winter season of the Parliament, both the Houses of the Parliament passed the bill which was duly acknowledged and signed by the President and enforced in January, 2022. Surrogacy, in the Surrogacy (Regulation) Act,2021[2] is defined as a practice where a woman births a child for a couple who have been medically certified to be an infertile couple and who intend to become parents, with an intention to hand it over to such parents after the birth of the child. The Surrogacy (Regulation) Act,2021, lays the foundation for the regulation of surrogacy in India and sets up the metrics of competence for the intending parents and surrogate mothers, silhouetting the process for acquiring legal identification of surrogacy agreements as well as mandating the establishment of surrogacy boards to administer the application of the law.

The Assisted Reproductive Technology Act, introduced in the Lok Sabha in September, 2020, was sent to a standing committee for revision. Later, along with the Surrogacy Act, it was passed in both the Houses of the Parliament, during the winter season of the Parliament in December,2021 and enforced in January, 2022. The Assisted Reproductive Technology, in the Assisted Reproductive Technology Act, 2021, is defined as all techniques used to attain a pregnancy by handling the sperm or egg cells outside the human body and transferring the embryo into the reproductive tract of the woman, inclusive of, sperm donation, IVF (In-Vitro-Fertilisation), where the sperm is fertilised in a lab and the child to be born is biologically not related to the surrogate. The Assisted Reproductive Technology Act, 2021, governs the practice of the assisted reproductive technologies in India and sets norms for the functioning of fertility clinics and ART procedures, inclusive of the requirements for informed consent, screening of the gamete donors, and the storage and disposal of gametes and embryos. The ART Act also established a national registry for ART clinics and mandated the formation of a national advisory board to surveil assent with the law.

Legislative Frameworks
The Surrogacy (Regulation) Act,2021 bestows various rights and protective shields on the surrogate mother as well as the child born through the process of surrogacy. According to the Surrogacy (Regulation) Act,2021, a couple should obtain certificates of competence and quiddity to possess a child. The couple is determined as ‘eligible’ if they have been espoused for five years, the wife aged between 25-50 and the husband aged between 26-55 years. The couple must not possess any living child, exception being possessing a child with special needs. The couple can obtain an ‘essential’ certificate if proven infertile of either partner certified by a District Medical Board, and an order of lineage and custodianship of the surrogate child, passed by a Court of the Magistrate. They must also possess an insurance indemnification for 16 months for the surrogate mother, securing any puerperium intricacies. A surrogate mother must be a close relative of the couple, aged between 25-35 years and a married woman with a child of her own. The surrogate mother must also possess a certificate of Medical and Psychological fitness for surrogacy.

Surrogacy is authorized only for the altruistic purposes or for the couples who have proven infertility or diseases and not for the commercial purposes inclusive of sale, prostitution, or any other form of exploitation. In legislative debates, several members of the parliament illuminated the requirement to introduce the proposed regulations in twain with the Section 377 as well as the Transgender Persons(Protection of Rights) Bill, whereas, some members of the parliament accentuated on the fact that one of the committees endorsed allowing access for single women and live-in couples, but the legislation only partly addressed this concern by allowing the ever-married single women and not others inclusive of single men, same-sex couples or unmarried couples.[3] Section 3 of the Surrogacy (Regulation) Act,2021 imposes strict regulations on the surrogacy clinics and practitioners. It prohibits the unregistered clinics from conducting the procedure of surrogacy and bans any form of commercial surrogacy. This section mandates that only qualified personnels can be employed, and surrogacy procedures must be performed only at the registered clinics. This section prohibits Advertising inducing surrogacy or promoting commercial surrogacy. For the abortion during the surrogacy, a written consent from the surrogate and authorization from the appropriate authority is required. This section provides that the storage of embryos or gametes for surrogacy is prohibited, except for the legal purposes like IVF. Section 4 of the Surrogacy (Regulation) Act,2021, prohibits the commercial surrogacy and allows only altruistic surrogacy for the intending couples who cannot conceive a child due to either of the partners being infertile. Section 5 of the Surrogacy (Regulation) Act,2021, prohibits the conduction of the procedure of surrogacy and states that no person shall encourage to conduct any surrogacy procedure on a woman. Section 6 of the Surrogacy (Regulation) Act,2021, states that a no surrogacy procedure is to be conducted without the proper knowledge of the surrogate about the procedure and consequences and a written informed consent of the surrogate mother. Section 11 of the Surrogacy (Regulation) Act,2021, prescribes that the establishment of surrogacy clinics require registration under the Surrogacy (Regulation) Act,2021. The Applications must be submitted to the appropriate authority along with the prescribed fees and the existing clinics conducting surrogacy must apply for the registration within 60 days of the appointment of the authority or cease to operate after six months from the commencement of the act. It states that the registration is contingent upon the clinic meeting prescribed standards for facilities, equipment, manpower, infrastructure, and diagnostic efficiency. Section 38 of the Surrogacy (Regulation) Act,2021 prohibits the commercial surrogacy, exploitation of surrogate mothers and children born through the procedures of surrogacy. Section 39 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for the contravention of the provisions of the Act as imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. Section 40 of the Surrogacy (Regulation) Act,2021 prescribes the punishment for not adhering to the altruistic surrogacy as imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years with fine which may extend to ten lakh rupees.[4]
The Surrogacy (Regulation) Act,2021, has amassed venerable critique for its cliquish demeanour towards the LGBTQ+ Community and single individuals seeking for parenthood through surrogacy. The Surrogacy (Regulation) Act,2021 authorizes only heterosexual married couples recognized under the Indian Law to engage in the procedure of surrogacy, effectively prohibiting the same-sex and non-binary couples, as well as single fathers, from accessing these reproductive procedures. This act overtly stipulates that surrogacy procedures are reserved for the heterosexual married couples, reinforcing traditional norms, and excluding diverse family structures. This exclusion is particularly glaring considering that single parents, who account for the 20%[5] of the surrogacy users, are also denied access under this Act. Such restrictive provisions reinforce societal prejudice and perpetuate discrimination against LGBTQ+ individuals and single parents seeking to build families through surrogacy. The stance of the administration on the surrogacy for LGBTQ+ individuals have been marred by overt homophobia. Former Minister of External Affairs of India, Sushma Swaraj, has been vocal in her hostility to surrogacy for homosexuals, adducing culture norms and “Indian Ethos”[6]. Such statements reflect the entrenched societal biases and illuminates the challenges faced by the LGBTQ+ individuals and single parents.[7]
According to the Assisted Reproductive Technology Act, 2021, every clinic and bank of ART must be registered with the National Registry of Banks and Clinic of India which shall conserve a central database with all the requisite details of such institutions. Section 15 of the Assisted Reproductive Technology Act, 2021 mandates the Registration of Assisted Reproductive Technology or Assisted Reproductive Technology Bank. The validity of registration of such clinics and banks is for 5 years and can be renewed for another 5 years which shall be subjected to cancellation or suspension in case of violations of the provisions of the ART Act. Section 17 of the Assisted Reproductive Technology Act, 2021 prescribes the validity and renewal of the registration. A registered bank of ART can screen, collect as well as store the semen from men and eggs from women both aged between 21 to 55 and 23 to 35 respectively. Section 28 of the Assisted Reproductive Technology Act, 2021 states the procedures as well as the standards of storage and handling of human gametes and embryos. According to the provisions of this act, the female donors need to be married with at least one child of their own. A woman, in her entire lifetime, can only donate up to 7 eggs. Section 22 of the Assisted Reproductive Technology Act, 2021 states the provision of the Written Informed Consent. The written consent of both the couples as well as the donor is required for the commencement of the procedures of the ART and the couple seeking the procedure of ART must provide insurance indemnification for the female donor in case of loss, damage, or death of the donor. The donor does not retain any lineage or custodianship over the child to be born and such child is to be deemed as the biological child of the couple. The clinic and banks conducting the procedure of ART are prohibited from advertising or offering the sex-selective ART. Section 32 of the Assisted Reproductive Technology Act, 2021 prescribes the punishment for the sex-selective assisted reproductive technology. Section 26 of the Assisted Reproductive Technology Act, 2021, prohibits the pre-natal diagnostic to determine the sex of the child as well as prescription of anything that shall ensure the probability of an embryo to be of a particular sex. Involvement of such clinics and banks in such offenses is punishable with imprisonment of a term not less than 5 years which may extend to 10 years and/or a fine not less than Rs. 10 Lakhs which may amount to Rs. 25 Lakhs.[8] Section 18 of the Assisted Reproductive Technology Act, 2021, states that non-compliance with the rules and regulations of the Act shall result in the Suspension or Cancellation of the registration.[9]
Article 21 of the Constitution of India provides the guarantee to the right to life and personal liberty to all individuals inclusive of the right to live with dignity, which the courts interpreted to encompass various aspects of the reproductive rights, such as the right to access healthcare services and reproductive healthcare. Article 19 of the Constitution of India provides freedom to the intended couples to make informed choices about the reproduction and family planning. Article 15(3) of the Constitution of India enables the state to make special provisions concerning the women and children. Article 39(a) of the Constitution of India directs the state to ensure that citizens, men, and women have equal rights to an adequate means of livelihood, ensuring the protection of the reproductive rights of the women and addressing the gender-based discrimination in the reproductive healthcare.[10]

Ethical Considerations
The ethical realm whirling around the surrogacy as well as the ART are intricate as well as pugnacious, comprehensive of various concerns that decussate with the societal values, medical ethics, and human rights principles. While these technologies offer propitious avenues for individuals and couples struggling with infertility to achieve parenthood, they also raise abstruse ethical questions. One of the foremost ethical considerations is the plausible commercialization of the human body intrinsic in surrogacy procedures. Experts contend that the complicity of financial transactions in surrogacy can lead to the abuse of economically disadvantaged women who may feel coerced to become surrogate mothers for the purpose of mere financial gain. This raises the apprehension about the accord and agency of surrogate mothers, as they steer complex socio-economic factors that may impact their decision-making. Furthermore, the commercialization of surrogacy can eternalize the inequalities and stiffen the conception of the body of the women as commodities that can be bought and sold. This challenges the principles of reproductive accord, which accentuated the rights of the individuals to make informed choices about their reproductive lives without intimidation or insistence. Equilibrating the accord of intended parents with the welfare and accord of surrogate mothers is a central ethical predicament in the regulation of surrogacy.  Additionally, the use of ART procedures such as Preimplantation Genetic Diagnosis (PGD) raises ethical distress regarding the selection of coveted attribute or idiosyncrasy in offsprings. While PGD can help identify the genetic anomalies and prevent the dissemination of inbred diseases, its use for non-medical purposes, such as selecting for gender or specific physical attributes, raises ethical questions about the possibilities for eugenic practices and the protraction of the social inequalities.

Moreover, the welfare of the surrogate mothers and children born through the procedure of ART is a preponderant ethical consideration. Surrogate mothers may confront physical and emotional threat kindred with pregnancy and childbirth, as well as plausible adversities in steering through the complex emotional flux of surrogacy procedures. Cinching the protection of the rights of the surrogate mothers, access to panoramic healthcare, and psychological assistance is essential to sustain ethical standards in surrogacy. Similarly, the welfare of children born through the procedures of ART, inclusive of the issues of individuality, consanguinity, and the right to know one’s own genetic heritage, requires careful considerations. Ethical guidelines accentuate the significance of lucidity, honesty, and respect for the best interests of the child in all the aspects of ART, including the donor conception and surrogacy.

Socio-Legal Challenges
The implementation of the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021, faces various socio-legal implications that impede their efficacies. The major challenge is the sparse enforcement mechanism. While legislations exist, enforcement at the ground level can be challenging due to various factors such as lack of resources, capacity, and coordination amongst the regulatory authorities. The issue deteriorates the intended regulatory framework, leaving crevices that may be tyrannized or result in inconsistent application across the country.

Moreover, there is ubiquitous lack of awareness and education about the reproductive rights and responsibilities amongst the general population, healthcare providers, and even legal professionals. This deficit contributes to incomprehension, misapprehension, and non-compliance with the provisions laid out in the Acts. Addressing this gap requires strenuous efforts to propagate scrupulous information, raise awareness about the rights and responsibilities, and promote ethical practices in surrogacy and ART. The dissimilitude in access to healthcare and legal resources present another significant challenge. While the legislation aims to ensure equitable access to reproductive services, socio economic factors, geographic locations, and systematic barriers can hinder access for certain tranche of the population. Marginalized communities, rural populations, and economically destitute individuals may face challenges in accessing quality healthcare services and legal support needed to steer the surrogacy and ART landscape[11].
Furthermore, the evolving nature of the reproductive technologies and shifting social norms necessitate continuous review and adaptation of existing legislation. As new technologies emerge and societal attitudes towards reproduction evolve, gaps in regulation may emerge, requiring timely updates to ensure that the legislation remains relevant and effective. This ongoing process of review and adaptation is essential for safeguarding the reproductive rights of the women, addressing emerging ethical concerns, and maintaining public trust in surrogacy and ART practices. There are instances where the implementation of surrogacy regulations has faced challenges in India, inclusive of the exploitation of surrogate mothers[12] and the commercialization of surrogacy[13], which led to the legislative reforms aimed at the protection of the rights of the surrogate mothers and ensuring ethical practices in surrogacy procedures.
Addressing the socio-legal challenges facing the implementation of surrogacy and ART regulations requires a multi-faceted approach involving improved enforcement mechanisms, enhanced awareness and education efforts, and measures to alleviate disparities in access to healthcare and legal resources. Additionally, ongoing review and adaptation of legislation are crucial to keep pace with elevation in reproductive technologies and evolving societal norms, ultimately safeguarding the reproductive rights, and promoting ethical practices in surrogacy and ART.
It was argued that the ban on the commercial surrogacy showed the centre was inaccessible with the ground realities. Various villages in Gujarat are known for commercial surrogacy. Anand, known for the Amul’s Diary Factory, according to the reports has also attained fame as India’s ‘surrogacy capital’, offering remunerative monetary opportunities for penurious women. A surrogate earns around Rs. 3 to 5 lakhs per pregnancy, reliant on the delegating parents, and the total costs of making a baby is roughly Rs. 10 lakhs. In Mumbai, a surrogate mother is paid around Rs. 12 to 15 lakhs for one surrogacy, of which the surrogate mother earns Rs. 3 to 4.5 lakhs. Such practices have now been abolished with the implementation of these two Acts but still in some parts of the country, such practices are still prevalent for financial gains.[14]

Case Laws

  1. Jan Balaz Vs. Anand Municipality[15]

This case revolves around a German couple who hired a surrogate mother named Marthaben Immanuel Khrishti who gave birth to twins. This couple worked in the US and thus their twins needed an Indian Passport to travel. The two twins did not possess citizenship as its process was litigating in the courts. So, the passport authorities did not grant the passports to the twins and in Germany, there was no law for surrogacy. The Supreme Court of India, did not grant permission to provide them with the passports but granted an exit permit to the children and the German authority allowed them to adopt the children and contest for their rights.

  1. Justice K.S. Puttaswamy Vs. Chandigarh Administration[16]

In this case, the court held that there is a violation of the right to privacy in acquiring and furnishing the certificate of infertility and it is also against the moral and ethical point of view of society to make it compulsory to have a certificate of infertility from the district medical board and this fundamental right is needed to protected.

  1. Shweta Janardhan Barve Vs. State of Kerala[17]

    The court in this case, ordered the DIG of Thiruvananthapuram to investigate a proposed surrogate mother and her family to ensure altruistic surrogacy. The court held that The Surrogacy (Regulation) Act, 2021 allows only altruistic surrogacy, where the surrogate mother does not receive any monetary compensation[18].

Analysis
The analysis of the Surrogacy (Regulation)Act, 2021, and the Assisted Reproductive Technology Act, 2021, reveal the labyrinthine intermesh between the legislative manoeuvre and the complicated domain of the reproductive rights of the women. These acts are responses to a growing industry teem with the ethical quandary, societal implications, and legal crevice. While their intention is to truncate the plausible abuse and ensure ethical standards is assisted reproduction, their implementation and effects on the reproductive accord necessitate a closer analysis. Regulation is indeed vital in alleviating illegal and exploitative practices that have been extensive in the surrogacy industry, where susceptible women often have been subjected to intimidation or inadequate compensation. The prohibition of commercial surrogacy under the Surrogacy (Regulation)Act, 2021 aims to prevent the commercialization of the bodies of women and to prioritize the altruistic surrogacy. Similarly, the Assisted Reproductive Technology Act, 2021 seeks to establish standards for the operation of ART clinics and the handling of genetic material, aspiring to ensure the safety and dignity of all involved parties. However, the regulatory framework must be balanced to safeguard the accord of the women and ensure the equitable access to reproductive healthcare. The rigid eligibility criteria for surrogate mothers, for instance, may fortuitously exclude women from the destitute communities who rely on the surrogacy as a sole mean of financial support. Additionally, the accentuation on the altruistic surrogacy may limit the options available to women who wish to undertake surrogacy as a paid arrangement, thereby constraining their reproductive choices. Ethical considerations loom large in the discourse surrounding surrogacy and assisted reproductive technology. The principles of accord enhance the rights of the individuals to make informed decision about their bodies and reproductive futures. However, concerns arise regarding the potential exploitation of surrogate mothers, especially in contexts where economic dissimilitude are prominent. Their regulations must strike a delicate balance between protecting vulnerable women and respecting them in making reproductive choices.

Conclusion
The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology Act, 2021 demonstrate venerable legislative endeavours expecting at tweaking surrogacy and ART practices in India. These laws were sanctioned to address various misgivings encompassing reproductive technologies, inclusive of the issues related to the exploitation, commercialization, and ethical considerations. The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy in India, permitting as it were altruistic surrogacy procedures for the citizens of India. The altruistic surrogacy concerns a surrogate mother carrying a child for the intended parents without budgetary recompense past restorative costs and insurance indemnification. The act also establishes a National Surrogacy Board to arbitrate the direction of surrogacy strategies and execute moral guidelines. Similarly, the Assisted Reproductive Act, 2021, aims to regulate the practice of ART procedures such as IVF, sperm and egg donation, and foetus transfer. It sets guidelines for the ratification of ART clinics and traces the rights and duties of parties involved in ART procedures, including intended parents, donor, and medical professionals. However, while these legislative measures are intended to shield the reproductive rights and prevent exploitation, they have also provoked debates regarding their impact on access to reproductive services and the accord of individuals seeking fertility treatments. Experts contend that the restrictive nature of the les may limit access to surrogacy and ART services for individuals who are unable to conceive naturally, particularly those from the oppressed communities. Additionally, concerns have been raised regarding the exclusion of the same sex couples and single individuals from accessing surrogacy and ART services under the new regulations, the laws currently only permit heterosexual couples who have been married for at least five years to pursue surrogacy, raising questions about inclusivity and discrimination based on sexual orientation and marital status. Furthermore, the implementation of the Surrogacy (Regulations)Act, 2021, and the Assisted Reproductive Technology, 2021, faces challenges related to enforcement, monitoring, and awareness. There is a need for robust mechanisms to ensure compliance with the regulations, as well as adequate training and education for healthcare professional and the public regarding the rights and responsibilities involved in surrogacy and ART procedures. Further, the policymakers, healthcare professionals, and advocacy groups must collaborate to address these challenges and ensure that legislative measures effectively uphold the reproductive rights while promoting ethical practices and inclusivity. By working towards the inclusive and equitable reproductive policies, India can advance the cause of reproductive justice and ensure that all individuals have the opportunity to exercise their fundamental right to build families on their own terms, while also addressing moral concerns and societal realities.

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Written By – Sruti Sikha Maharana

[1] https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019

[2] https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf

[3] https://indianexpress.com/article/opinion/columns/on-surrogacy-indian-law-goes-a-step-further-but-not-far-enough-9187014/

[4]https://www.indiacode.nic.in/handle/123456789/17046#:~:text=An%20Act%20to%20constitute%20National,connected%20therewith%20or%20incidental%20thereto.

[5] https://feminisminindia.com/2022/02/02/the-surrogacy-regulation-act-2021-another-attempt-to-reproduce-a-heteronormative-patriarchal-society/

[6] https://www.thequint.com/news/india/union-cabinet-surrogacy-regulation-bill-2016-sushma-swaraj-against-our-ethos-commercial-surrogacy

[7] https://theleaflet.in/the-surrogacy-bill-2016-a-step-back-for-inclusivity/

[8] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece

[9]https://www.indiacode.nic.in/handle/123456789/17031?locale=en#:~:text=An%20Act%20for%20the%20regulation,health%20where%20assisted%20reproductive’%20technology

[10] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[11] https://www.aljazeera.com/news/2014/3/27/indian-surrogate-mothers-suffer-exploitation#:~:text=But%20in%20a%20blatant%20violation,lose%20out%20in%20the%20bargain.

[12] https://www.tribuneindia.com/news/archive/comment/surrogates-victims-of-abuse-exploitation-712289

[13] https://timesofindia.indiatimes.com/blogs/voices/commercialization-of-surrogacy-in-india-the-effects-of-globalisation/

[14] https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece

[15] https://lawsuitcasefinder.com/casedetail?id=U2FsdGVkX1ebh78ThKZjolGwdnkp7ypdJtCQ2lRsWw4rgO8Mgs5

[16] https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights

[17] https://www.verdictum.in/pdf_upload/shweta-barve-v-keralawatermark-1556613.pdf

[18] https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-kodakara-hawala-heist-ed-not-super-investigating-agency-their-role-comes-after-police-or-cbi-registers-fir-reserves-judgment-257654?infinitescroll=1

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Workmen’s Rights Challenge: The High Court of Delhi Upholds Denial of Regularization in Association-Employee Feud, determines no illegality or profligacy in the judgment of the Tribunal

Case Title – Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owners’ Society & Anr.

Case Number – W.P. (C) 6193/2008

Dated on – 28th March, 2024

Quorum – Justice Chandra Dhari Singh

FACTS OF THE CASE

In the case of Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owner’s Society & Anr., the Kanchanjunga building was constructed in the year 1972 by M/s. Kailash Nath & Associates. The owners of the flat created the Kanchanjunga Flat Owners’ Association in the year 1978 to manage the security, maintenance, and the cleanliness of the building. Later, through the contractors, the workmen were employed from 1988-1996 by the members of the association. The workmen sought for the regularization of the service which led to an industrial dispute that was later referred to the Industrial Tribunal. The regularization of the workmen was denied by the Tribunal in its judgment. Being aggrieved by the decision of the Tribunal, the workmen appealed in the High Court of Delhi, challenging the decision of the Tribunal.

ISSUES

The main issue of the case whirled around whether the workmen were entitled to the regularization?

Whether there was an existence of an employer-employee relationship between the workmen and the association?

Whether the association qualifies as an industry under Section 2(j) of the Industrial Dispute Act, 1947?

LEGAL PROVISIONS

Article 226 of the Constitution of India prescribes that every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writs, orders, or directions to any person or authority

Section 2(j) of the Industrial Dispute Act, 1947, prescribes the “definition of Industry” as any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.

CONTENTIONS OF THE APPELLANTS

The Appellants, through their counsel, in the said case contented that the services of the workmen were converted into contractual labour just to strip them of the benefits.

The Appellants, through their counsel, in the said case contented that the Respondents’ Association was the actual employer, even if they were engaged through the contractors.

The Appellants, through their counsel, in the said case contented that the lack of documentation such as the leave application, does not repudiate the employer-employee relationship.

The Appellants, through their counsel, in the said case contented that the control of the Association over the workmen signifies an employer-employee relationship.

The Appellants, through their counsel, in the said case contented that since the year 1985, the workmen have been working with the association which can be proved by way of documents.

CONTENTIONS OF THE RESPONDENTS

The Respondents, through their counsel, in the said case contented that there is no such employer-employee relationship established between the workmen and the association.

The Respondents, through their counsel, in the said case contented that the workmen are the employees of the contractors and not of the association.

The Respondents, through their counsel, in the said case contented that the lack of documentary evidences justify the absence of direct employment with the association.

The Respondents, through their counsel, in the said case contented that the workmen were not directly controlled by the association rather the wages were paid by the contractors.

COURT ANALYSIS AND JUDGMENT

The court in the case of Kanchanjunga Building Employees Union Vs. Kanchanjunga Flat Owner’s Society & Anr., analysed the testimonies of the witnesses and the documentary evidence furnished and stated that the Burden of Proof lies on the claimant to establish the relationship between the employer and the employees. The court observed that no conclusive evidence showed any direct employment of the workmen with the association rather the contractors had the control over the workmen and paid waged to them, indicating their employment. The court observed that the activities of the association did not primarily involve the commercial functions to qualify as an industry.  Hence, the court in this case, upheld the decision of the Tribunal, determining no illegality or profligacy in the judgment of the Tribunal. The court, thus, dismissed the petition and upheld the impugned order.

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Judgement Reviewed by – Sruti Sikha Maharana

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