Right To Education ESSAY

ECSTASY
SAKSHARTA SADVIDYA EDUCATIONAL AND SOCIAL

SOCIETY
AUGUST 2017 ISSUE I VOLUME I

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August 2017 Issue 1 Volume 1
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Published & Released in India
A publication of Saksharta Sadvidya Educational and Social Society
August 2017 Volume I Issue I
Recommended citation: Sadvidya 2017
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CONTENTS
1. The Surrogacy (Regulation) Bill, 2016: A Facile Proposal? (A
Backward Step In A Progressive State) .............................................. 4
2. Right To Information In India: An Overview .....................................13
3. India: The Youngest Hungry And Malnourished Country ............... 23
4. The Unconventional Procreation ...................................................... 35
5. Right To Education in India .............................................................. 44
6. Right To Information Act, 2005- Critical Study ............................... 54
7. Disentangling The Nuances Affixed To Disability ............................ 63
8. Trading Motherhood: Ethical And Legal Perspectives Of Surrogacy

........................................................................................................... 79
9. An Insight Into The Practice Of Surrogacy ....................................... 94
10. Right To Information: What Is It? ...................................................107

THE SURROGACY (REGULATION) BILL, 2016:

A FACILE PROPOSAL? (A BACKWARD STEP IN A PROGRESSIVE
STATE)
SAKSHI JAIN & ABHISHEK RAI

NATIONAL LAW UNIVER SITY ODISHA, CUTTACK
Introduction
1. Infertility has been on the rise in the past few decades affecting 8-12% couples
during their reproductive lives.[1] India too has been a victim of this and as per a
study conducted by the WHO, the incidence of infertility in India is 10% to 15%,[2]
thereby implying that at any given point of time, at least 13 to 19 million couples
are infertile.[3] While most of the cases of infertility are curable, on the other
hand, around 8% of the infertile couples need serious medical intervention by the
use of Assisted Reproductive Technologies [Hereinafter referred to as ART].
2. In India, infertility has a myriad of socio-economic problems with women facing
continuous mental agony and harassment. Much to their relief, surrogacy
appears to be a viable option for them, which is basically,a method of
reproduction, whereby a woman agrees to become pregnant for the purpose of
gestating and giving birth to a child she will not raise but hand over to a
contracting party.[4]
3. Surrogacy can be done by Straight or Host Method and the arrangement for
which can either be altruistic or commercial. While the child born by the straight
method is genetically linked to the surrogate, the one born via host method is
genetically linked to the intended parents and not the surrogate. Moreover, the
commercial arrangement provides for monetary compensation to the surrogate
which is not contemplated by the altruistic arrangement.
4. In 2002, Indian Council for Medical Research (ICMR) formulated guidelines for
surrogacy and regulated it further by issuing National Guidelines for
Accreditation, Supervision and Regulation of ART Clinics in India[5] in the year
2005. Eventually, India emerged as one of the worlds transnational surrogacy
hubs with more than 3000 fertility clinics and growing at a rapid rate of 20% per
annum.[6]
5. While the guidelines issued by ICMR have not been repealed till date,
nonetheless, 228th Law Commission Report highlighted the need for legislation to
regulate ART Clinics and rights of the surrogate. The 228 th Law Commission
Report owed its origin to the loopholes in the legal framework surrounding
surrogacy which thereby resulted in a string of cases but with no law to govern
them. The need for a law regulating surrogacy came to the forefront when a
Japanese couple commissioned a surrogate but got divorced before the child was
conceived, thereby, leaving India and Japan in a quandary with respect to the
status of the child born.[7]Similarly, there were issues relating to nationality of the
twins born through surrogacy in India for German couples, and which after a
long fought legal battle allowed German couples to take the twins home.[8]
6. Thus, in the absence of any legislation to govern these peculiar situations, the
realization of a proper legislation being in place dawned upon the policymakers
and as a consequence of which Surrogacy (Regulation) Bill, 2016 [Hereinafter
referred to as the Draft Bill] was passed. The Draft Bill is the result of elaborate
discussions with 26 states, 18 ministries, and 40 stakeholders, [9] and it aims to
bring about a complete overhaul in the dynamics of surrogacy, thereby affecting
the rights of various stakeholders associated with it.
SURROGACY: A WOMB FOR RENT?
THE NEED FOR LEGI SLA TION

7. The primary aim of proposing the Draft Bill was to guard the rights of the
surrogate mother and ensure a secure future for the child born thereof. The
reckless practice of surrogacy proved detrimental for the surrogate mothers
under the faade of helping them earn a living. In the Baby Manji case,[10] the
intended parents abandoned the child, born out of surrogacy, owing to their
divorce before the birth of the child and the legal complications which did not
allow the father to take the child to Japan. After years of debate over the issue of
Statelessness of the child, the custody was given to the grandmother. In another
case of an Australian couple, the intended parents turned down one of the twins
born by way of surrogacy, leaving the other child Stateless. These cases primarily
triggered the debate on the pros and cons of commercial surrogacy; the latterly
held ground. The women in the rural and the tribal areas came out to be the
worst of the victims when the intended parents denied raising the child owing to
various reasons such as any sort of a deformity in the child, personal glitches, etc.
This led to a two-fold trouble for the surrogate mother, one being her poor health
condition and lack of proper nutrition owing to denial of money agreed upon, and
on the other hand, she has to bear the burden of a child which she cannot afford.
The Draft Bill came to the rescue of the surrogate mothers by conferring upon
them the requisite rights for bearing a child for another couple.
8. The Draft Bill, with all its highlights and challenges, emerges as a silver lining in
the smog of imprudent behavior. The commodification of child birth by such
means raises fingers on several moral fronts as well, let alone health and rights
issues. The intervention through legislation appeared to be need of the hour so as
to carry on the process through a proper and regulated channel to avoid any
abuse. The 228th Law Commission Report also suggested towards a pragmatic
approach by legalizing ethical altruistic surrogacy and prohibiting commercial
ones.[11] The Draft Bill proposes such surrogacy only through a close blood
relative and that the legally wedded, intended parents should not bear a child
beforehand and produce a certificate of infertility. It excludes from its ambit
foreign nationals keeping in mind the past records of abandonment by the
intended parents as well as non-recognition of parenthood by means of surrogacy
in several countries. Even though controversial still not irrational, clause for the
exclusion of singles, widows, homosexuals from the list of intended parents has
been put in the Draft Bill owing to the fact that the country is yet not ready to
accept such ideology. The child might be outcaste for no fault of his, and this shall
frustrate the purpose of the bill. Furthermore, those opposing the bill on account
of complete ban on commercial surrogacy should acknowledge the number of
orphans in the country and advocate adoption. This will serve the twin purpose of
giving family to a homeless child as well as a childless couple will be blessed with
a child.
9. The rights conferred upon the surrogate child shall be no different from those of
any biological child and Boards at National as well as State level shall be
constituted to ensure the same and other adjoining rights of the surrogate mother
as well. The Draft Bill also keeps intact the sacredness of motherhood by
disallowing repeated surrogacies for the sake of availing monetary benefits. In
order to keep the control in the hands of the Government, it shall be mandatory
for all the ART clinics to get themselves registered with the appropriate
authorities. Non-compliance with the rules mentioned thereunder shall attract a
fine of Rs.10 lakh and imprisonment which can extend up to a term of 10 years.
AN INCOMP LETE PROPOSAL

10. In India, the surrogacy industry has flourished manifolds in the past decade,
thereby providing employment to the economically challenged women and most
importantly, child to the infertile couples. However, with the passing of the Draft
Bill, this industry has come to a standstill on account of uncertainties
surrounding the bill.
11. The Draft Bill with its gibberish provisions, fly in the face of basic Fundamental
Rights granted by the Constitution of India. While the Draft Bill proposes to
absolutely ban commercial surrogacy, at the same time, it permits altruistic
surrogacy but with a few riders attached, thereby plummeting surrogacy even
further. Altruistic surrogacy can only be opted for by those couples who have
been married for at least 5 years and do not have a child of their own. In addition
to it, eligibility criterion for a woman to become a surrogate requires her to be
aged between 25-35 years, to have a child of her own and a surrogate only once in
her lifetime. Consequently, the surrogacy industry will practically disappear in
the wake of the limitations being imposed by the Draft Bill.
12. Over the last decade, India has become a procreative tourism hub with over 3000
fertility clinics charging in between $35,000 and $40,000 per surrogacy
service,[12] which in turn is equivalent to ten years income of rural Indian
women.[13] However, things may go downhill for surrogacy industry and
especially for the rural women if the Draft Bill becomes a law in its present form.
13. The Draft Bill seeks to prohibit commercial surrogacy and impose several
unnecessary restrictions on the surrogate as well. [14] Given the number of women
employed in this economically prosperous industry, all of them face an imminent
threat of unemployment in the wake of the Draft Bill. Additionally, depriving
women to become surrogates comes at the cost of violating the basic tenet of the
Constitution of India i.e. Right to Livelihood.[15] Further, every citizen has the
Fundamental Right of Trade and Occupation[16] and the Draft Bill seeks to defy it
as well. The women belonging to the rural strata are actively involved in the
surrogacy industry, owing to the monetary incentives attached therewith, and the
Draft Bill, in its present form, poses a serious threat to their employment.
14. Further, ART bill of 2005, 2008, 2010 and 2013 did not impose any restriction
on the individual opting for surrogacy and it was the ART Bill of 2014, 2016 and
finally the Draft Bill that proposed to limit the option of surrogacy only to
married infertile Indian couples. The Draft Bill prohibits a single person, live-in
partners, homosexuals and foreigners to opt for surrogacy and thus, is highly
discriminatory in nature. Any action by the government has to pass the yardsticks
of constitutionality and in the instant case; the Draft Bill blatantly fails to satisfy
the Fundamental Right to Equality before Law.[17] A constitutionally legislative
classification must be based on intelligible differentia,[18] which in turn must be
in direct relation to its lawful objective.[19]However, the Draft Bill seeks to
discriminate individuals on the basis of their sexual orientation, nationality and
their unconventional lifestyles, which has no relation with the objective of
surrogacy regulation.
15. Furthermore, the Draft Bill disregards the spirit of the Constitution of India[20] by
violating the Fundamental Right of Reproductive Autonomy[21] and Right to
Privacy[22]. Women have the right to make reproductive choices as a part of their
personal liberty[23] and the Governments attempt to curtail this right is reflective
of patriarchal Indian mind-set that a woman, if fertile, should conceive herself
rather than taking recourse to any scientific means.[24] Apart from Municipal
Law, the Draft Bill is in violation of International Conventions as well. The
Universal Declaration of Human Rights and The Convention on the Elimination
of all Forms of Discrimination provides for the right to found a family,[25] and the
right to decide freely and responsibly on the number and spacing of children
respectively,[26] both of which clearly stands in contrast to the provision of the
bill.
16. Lastly, the bill appears to be a shoddy attempt to regulate the surrogacy industry.
For instance, it suffers from the vice of ambiguity as it fails to provide for the
definition of close relative who may act as a surrogate. Similarly, it makes no
mention of the status of surrogate and the child born through commercial
surrogacy once the bill takes the form of legislation. Also, the Draft Bill fails to
provide that the altruistic surrogate must be an Indian resident or citizen, thereby
leaving the scope of human trafficking and other serious human rights abuses.[27]
Not only does the Draft Bill suffer from the vice of being legally unsound but, at
the same time, it is highly divorced from the social reality as well. It must be
noted that it is the regulation and not the prohibition of such an industry which
will ameliorate the status of women employed therein. On the face of it, the Draft
Bill appears to be a regressive law being made with a myopic view of social reality
and patriarchal overtone, thereby pushing the surrogacy industry
underground.[28]
17. Hence, the Draft Bill, in its present form, is a delusional recipe for disaster, since
not only are the provisions ambiguous, leaving ample scope to frustrate the whole
purpose of legislation but at the same time it defies the basic tenets of the
Constitution as well. The shortcomings of this bill need to be ironed out and the
provisions of which must be made not in the backdrop of patriarchal mind-set
but in the light of scientific advancement.
PROPOSED MODEL: REGULATE NOT PROHIBIT
18. A complete ban on commercial surrogacy has raised several eyebrows since it is
better to regulate an activity by effective monitoring than to impose absolute ban
thereon. This ban can prove to be directly proportional to increased vulnerability
of women entering into such contracts of surrogacy on account of underground
surrogacies and the resultant non-enforceability of contracts thereunder. The
framers of the Draft Bill should have mused on bolstering the enforceability of
surrogacy contracts so as to give justice to the surrogate mother. Additionally, it
ought to be assured, by competent authorities, that the terms of contracts be
framed in a bona-fide manner without any discrimination towards or adverse
effect upon any of the parties. It should also have addressed the issue of
exploitation of urban women since their number does not lag behind that of the
rural or the tribal women because what should be banned is exploitation and not
surrogacy itself.
19. The time has come to bring upon an overhaul in the perspective of the masses
instead of pushing them further into the quagmire of social inequalities which is
evident from the list of people banned from opting for surrogacy, as proposed in
the bill. The people themselves, as well as the legislators, need to emerge out of
such situations together, and by not considering homosexuals, widows, singles to
be capable of parenthood by means of surrogacy depicts the unwillingness to
change. An initiative has to be taken to bring about a change in societal
perspective, although legislations cannot change the perceptions in the mind of
the people but not trying is a failure in itself. Most of the surrogate mothers are
unaware of their contractual rights, which is a major reason behind their
suffering and exploitation. The Draft Bill needs to address several lacunae before
it finally becomes a law, and has to focus on improving the infrastructure while
easing the procedure for efficiency.
20. Furthermore, the bill allows altruistic surrogacy through a close blood relative
only, which it fails to define and does not even mention the requisite recourse in
case of the relative is unwilling to be a surrogate mother. As far as maternity leave
is concerned, the bill finds no mention of the same and in various cases, there is
no grant of such leaves[29] as is in cases of adoption, which is undoubtedly not a
reasonable discrimination. A long waiting period of 5 years before surrogacy can
be opted for seems to be unnecessary since infertility of either spouse could be
confirmed within a period of 2-3 years at the most. The technologies used in ART
clinics are capable of producing a customized baby for the intended parents and
there is presently no mention to check any blatant misuse of technology and that
a clause mentioning the repercussions thereof must be included. The present
provisions of the bill only highlight regulations for the parties entering into
surrogacy contracts, and fail to mark the responsibilities of the concerned
authorities while issuing the eligibility certificate to the surrogate mother as well
as the intended parents, and the appropriate recourse available to the parties in
case of rejection of their application thereunder. Any legislation, especially for an
issue so sensitive, should address the core concerns as well as all the adjoining
ones thereof, leaving no room for any ambiguity. Appropriate alternatives should
find a special mention in such cases where the legislators try to control the means
of parenthood.
CONCLUSION
21. The Draft Bill was intended to be a silver lining in the clouds of exploitation for
all women wanting to be surrogate mothers and also, all the intended parents. To
curb the exploitation of surrogate mothers held prime importance in its framing,
owing to which commercial surrogacy was awarded a complete ban. This became
the bone of contention and drew in arguments from the ones backing it as well as
those showing a red card thereof. The way every coin has two sides, similarly, the
bill addressed some of the significant issues whereas, failed to mention the
ancillary yet essential ones. The provisions contained therein seem to be
primitive in nature instead of being at par with the modern ideology, for instance,
the one dealing with the exclusion of singles, widows, homosexuals, etc. from
indulging into parenthood by means of surrogacy. The Constitution of India is the
paramount law of the country and when it disallows, under Article 14,
discrimination of any kind then, calling any other legislation, not in consonance
with the Constitution, just, will be a misnomer. An in toto ban on commercial
surrogacy can turn out to be exploitative in nature on account of underground

contracts with zero enforceability in the eyes of law. This can also give rise to
increased human trafficking in the garb of surrogacy.
22. In a democracy like India, such impositions may have a horn effect in the minds
of the people as these cannot be said to fall within the ambit of reasonable
restrictions upon ones right to livelihood, for the surrogate mother, and right to
reproductive autonomy, for the intended parents. The legislators represent the
citizens of a country as well as are the leaders responsible to transform the future
thereof. The drafting of legislations and rules should be such as to cater to the
present needs of the people while keeping in mind the progressive future of the
nation as a whole. A change in perspective and acceptance of the modern
ideology appears to be the best way forward. The intention behind the framing of
the Draft Bill was undoubtedly in the best interest of the surrogate mother but it
also contains several gaps. It is yet not late for the legislators to bridge these gaps
since the bill stands pending for final approval into becoming a law. Prevention is
always better than cure and therefore it shall be prudent to make certain core
amendments before the bill gets final approval instead of giving it a thought once
any family falls prey to its follies.
[1]Maya N. Mascrarenhas et al., National, Regional, and Global Trends in Infertility Prevalence since
1990: A Systematic Analysis of 277 Health Surveys, 9 PLOS Medicine 1 (2012).
[2] Patrick J. Rowe et al., WHO Manual for the Standardized Investigation, Diagnosis and Management of
the Infertile Male(2000).
[3] Indian Council for Medical Research, National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India (2005).
[4] Baby Manji Yamada v. Union of India (UOI) and Anr. AIR 2009 SC 84 [Hereinafter Baby Manji Case].
[5] Jan Balaz v. Anand Municipality and Ors., AIR 2010 GUJ 21 [Hereinafter Jan Balaz Case].
[6]SharmilaRudrappa, Discounted Life: The Price of Global Surrogacy in India 61 (2015).
[7] Baby Manji Case, Supra note 4.
[8] Jan Balaz Case, Supra note 5.
[9] Dr. Rituparna Bhattacharyya, Draft Surrogacy (Regulation) Bill 2016: Rhetoric or Surrogate-centric, 4
Space and Culture 9 (2016).
[10] Baby Manji Case, Supra note 4.
[11] The Law Commission of India, 228th Report on Need for Legislation to Regulate Assisted
Reproductive Technology Clinics As Well As Rights and Obligations of Parties to a Surrogacy (2009).

[12]SharmilaRudrappa, supra note 7, at 81; Rituparna Bhattacharyya, Discounted Life: The Price of Global
Surrogacy in India, Gender, 23 Place & Culture 1814 (2016).
[13] J. B. Reich & Dawn Swink, Outsourcing Human Reproduction: Embryos & Surrogacy Services in the
Cyber Procreation Era, 14 JHCLP 248 (2011).
[14] 4(iii) (b), The Surrogacy (Regulation) Bill, 2016.
[15] Article 21, The Constitution of India, 1950; See Olga Tellis v. Bombay Municipal Corporation, AIR
1986 SC 180.
[16] Article 19(1)(g), The Constitution of India, 1950; SeeSodhan Singh v. New Delhi Municipal Committee,
AIR 1989 SC 1988.
[17] Article 14, The Constitution of India, 1950.
[18] Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538.
[19] DD Basu, Constitution of India (2001).
[20] Article 21, The Constitution of India, 1950.
[21]Meera Santosh Pal and Ors. v. Union of India and Ors., AIR 2017 SC 461.
[22] B.K. Parthasarathi v. Government of Andhra Pradesh, AIR 2000 AP 156.
[23]Suchita Srivastava and Anr. v. Chandigarh Administration, AIR 2010 SC 235.
[24]Supra note 23.
[25] Article16, Universal Declaration of Human Rights, 1948.
[26] Article 16(1)(e), Convention on the Elimination of all Forms of Discrimination, 1979.
[27] AB and Another v. Minister of Social Development, 2016 (2) SA 27 (GP).
[28]Simran Aggarwal, The New Surrogacy Law in India Fails to Balance Regulation and Rights, (LSE
Human Rights, 23 November 2016) <http://blogs.lse.ac.uk/humanrights/2016/11/23/the-new-
surrogacy-law-in-india-fails-to-balance-regulation-and-rights/> accessed 5 July 2017.
[29]Kalaiselvi v. Chennai Port Trust, 2013 (2) CTC 400.
RIGHT TO INFORMATION IN INDIA: AN OVERVIEW
B. PRAGASH
SASTRA U NIVERSITY, SCH OOL OF LAW
THIRU MALA ISAMU THIRAM
TANJAVORE
INTRODUCTION
Right to information is envisaged in Article 19(1)(a) of Indian Constitution which plays a

crucial role in presenting a transparent, accountable and participative government.
Corruption is one of the major threats to Indian democracy. Elected representatives and
government officials are obliged to perform their respective duties, but the greediness
results in engulfing the resources and labor efforts, thereby, resulting in no gain to the
citizens. To remove the above disability, The Right to Information Act, 2005 was
formulated to give the public a chance to involve in and understand the government
functioning. It is an indirect support lent to the whistle blowers and the enthusiastic and
patriotic citizens. To protect the whistle blowers, Public Information Disclosure bill,
2010 is before the Parliament. Though the Act has a lot of benefits, the failure starts at
its improper implementation and lack of awareness. This essay concentrates on the
concept of Right to Information, its legal backup, the benefits and significance, the
problems that are yet to be solved and the possible changes that can bring it to
perfection and future contingencies.
HISTORY
1. In India, the concept of information dissemination regarding government

functioning started during the monarch rule itself. It was considered as a hobby
by the great rulers to create monuments and make writers write dialects and
poems about their governmental functioning and achievements. The rights of
citizens as consumers and concerned citizens were recognized even during
Chandragupta Maurya Dynasty. The dissemination of information plays an

important role in ChanakyasArthashastra. But the right was considered not as a
complete right but subordinate to the right of being a consumer[1]. Before
independence, the disclosure of information regarding public officials was dealt
by the Official Secrets Act, 1923 which was regulated during the British rule.
2. The Right to Information got its Act shape in Sweden in 1766. The then King
Anders Chydenius enacted Freedom of Writing and Press Act which gave the
press the power to expose the government by making the functioning and
activities of government public. The law establishes freedom of press, inclusive of
the freedom to print and disseminate materials about the government, courts,
and Parliament. Forming the part of the Swedish Constitution, itrecognizes that
press freedom is contingent upon access to information and states to that end
free access should be allowed to all archives, for the purpose of copying such
documents in loco or obtaining certified copies. This head start now resulted in
implementing FOI/RTI Acts all over the world in more than 100 countries. Most
of these countries gave the legislation constitutional protection resulting in it
casting a duty on the government to prevent its violation.
INDIA
1. The modern-day legislation, Right to Information Act, was brought into the
country through the efforts of the Apex court[2] and Law commission[3]. The said
Act comprises of 31 sections dealing with the rights of citizens and duties of the
public authorities and procedures to obtain information. The right to information
was accepted as a fundamental right under Article 19 (1)(a) of Indian
Constitution through the interpretation of the constitution where it was held that
the freedom of speech and expression includes the right to receive and impart
education[4]. A successful democracy posits an unaware citizens diversity of
opinions, views, ideas and ideologies which is essential to enable the citizens to
arrive at informed judgment on all issues touching them. Right to Know is
implicit in the freedom of speech and expression itself[5]. This right though
obtained the proper recognition from the above case; the originating credit must
go to Auto Shankar case [6] as we can see the budding of information through the
development of freedom of press. The responsible media holds a dominant
position in perfect communication, dissemination and circulation which is bold
enough to face the consequences of saying truth. Thus, the need for transparency
and accountability of the government[7] is regulated with the help of freedom of

press which is also inclusive under the freedom of speech and expression[8].
2. The International Conventions and Declarations [9] also play an important role in
emphasizing the need of the Right to Information Act. The general public has all
the rights to know about a public act and any act that is done in a public way
through the public functionaries[10]. A country is not said to be true democracy if
the demography doesnt participate in the policy decisions of the government or
any crucial functioning of the government[11]. It is not said to be participation if
people knows nothing about the policy, so the people must be informed about the
pros and cons of a particular issue under discussion and must be aware of its
nature, implementation and consequences or impact. In the absence of the law
on information, the Supreme court judges created some Pre- tempore
guidelines[12] for regulation of information seeking procedures (valid till the
formation of the Act) and this resulted in 179th law commission report stressing
on the need for the legislation on this particular right.
REPORT AND LEGISLATION
1. The 179th report on the PUBLIC INTEREST DISCLOSURE AND PROTECTION OF

INFORMERS explains about the corruption and the methods to prevent it through
appropriate method. To devise a precise tool, analysis has been made on statutory
provisions of various countries and especially Chapter III and IV deals with the concepts
of whistle blowers and freedom of speech and expression respectively. The report quotes
the popular English and American Cases and explained the ratios of the judgments of
Honble Supreme Court on the freedom of speech and expression and its scope
extending to Right to Know. The Right to Information Act, 2005 and Whistle Blowers
Act, 2011 were the fruits of this report.
HIGHLIGHTS OF THE R IGHT TO I NFORMATIO N

ACT, 2005
The Right to Information Act (RTI) was first formulated as Freedom of
Information Act, 2002 with the aim of making progressive, participatory and
meaningful government. On accepting certain significant changes by National
Advisory Council, and decided to repeal the Freedom of Information (FOI) Act
for RTI act.
Interestingly Sections 4 (1), 5 (1) (2), 12, 13, 15, 16, 24, 27 and 28 came into force
on 15th June, 2005 and other provisions came into force on 120th day of its
enactment on 12th October, 2005.
States even have their own RTI acts and follow them. Thus, in these states, the
central Act comes into play only when there is repugnancy between the acts.
This Act is restricted to access of information to the citizens alone[13] but it is
inclusive of even the overseas citizens. The right to information is a fundamental
right and access to information is the rule[14]
There is no desideratum to prove the locus standi of the information seeker. The
information seeker is neither required to disclose invasion of any of his rights nor
any legal injury much less state reasons as to why he is seeking such information.
The right is only subject to the provisions of the Act[15].
In order to dispose the RTI application, the time limit is 30 days whereas to get
any information regarding the life and liberty of the person, the time limit is
further reduced to 48 days[16]. Thus, we can see the even balance of the freedom
of speech and expression and right to privacy[17]. If the information is not
obtained within the prescribed time limit then the appeal or unsatisfied with the
information, can be made to the senior rank officer of the Public Information
Officer. Even if not satisfied with the first appeal, the appellant can appeal to the
Central Information Commission or State Information Commission within 90
days from the date of the application to first appeal or the day on which the
information is obtained[18].
Still Official Secrets Act, 1923 has influence on the RTI Act as the disclosure that
is personal cannot be disclosed unless it is engulfed by the subsisting or over
riding Public interest. The personal information of officials working for the public
authorities is not within the ambit of S. 2 (f) of RTI Act, 2005 [19]. The personal
information sought cannot be denied if authorities concerned are satisfied that
the larger public interest justifies disclosure of such information[20].
Information is not provided against the individuals or private bodies if it is not
assisted, controlled or supported by state or central government as it will become
invasion of privacy (exception is overweighed Public Interest).
Lower Courts are barred from taking the RTI applications (civil courts are
barred) but the writ jurisdiction under Articles 226 and 32 for High Court and
Supreme Court still prevails[21].
INFORMATION A ND PUB LI C AUTHORITY

1. Ss. 2 (f) and 2 (h) defines information and public authority respectively. The
information can be accessed only regarding the details concerning the public
authority mentioned in the act.
2. The information includes any material in any form i.e., it is an inclusive
definition which is covering the widest possible sources to promote transparent
and accountable India. It encompasses, records, documents, memos, e-mails,
advices, press releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under
any other law for the time being in force.
3. We can see the indirect incorporation of right to information regarding details of
companies, registered societies etc.[22] Where the subscribers or the person
interested in the functioning of the concerned entities approach the registrar and
get the details from them. Similarly the registrar is having the duty to maintain
the documents and details needed. The same approach was implemented with
similar appeal mechanisms and thus it is easy to compare the provisions of RTI
Act with the provisions that deal with registrar, his duties and appeals in the
above mentioned Acts.
4. This Act pertains to the information that is already collected, furnished and
protected i.e., available on the records, but it does not go so far as to require an
authority to first carry out an enquiry and thereby create information [23]. Thus we
can conclude that the information will provide answer to WHAT, WHEN and
HOW but not WHY[24].
5. PUBLIC AUTHORITY includes any authority or body constituted by
a. Constitution
b. Parliament
c. State Legislature
d. Notification issued or order made by the appropriate government
6. It includes anybody owned, controlled or substantially financed and even
includes non-Governmental Organisation substantially financed directly or
indirectly by funds provided by the appropriate government.
HOW TO GET THE INF ORMATION?

1. The method to obtain the information is in s. 2 (j) of RTI Act, 2005, it includes
obtaining information through
i. Inspection of works, documents and records
ii. Taking notes extracts, or certified copies of documents or records
iii. Taking certified samples of material
iv. Information in the form of diskettes, floppies, tapes, video cassettes or in
any other electronic mode or through printouts if the information is
present in the computer.
2. From the above definition we can understand that the information can be
obtained from any source and in any possible means. The inclusion of electronic
media will improve the scope of the Act by allowing the recent technologies to
creep in and also inviting the provisions of Information technology Act, 2000.
CONSTITU TIONAL PROT E CTION

1. Though there is no word of information or right to know in freedom of speech
and expression at the time of writing of this essay, it is interpreted by the Indian
Supreme Court for the welfare of people. This was possible because of the
Keshavanada Bharathi case[25], which allowed the widest interpretation possible
for fundamental rights to exist. Thus in order to study the constitutional
protection we need to select the ratios decided by the Honble Apex Court of the
country.
2. We know that absolute right given with no restriction is absolutely repulsive and
creates chaos in the society [26]. Right to Information is also not an exception to it
we can see restriction in two ways
a. The Act express section 8 of the RTI Act says about the exception to
impart or provide information for the things said under the section
b. The Constitution Article 19 (2) says about the reasonable restrictions in
exercising the freedom of speech and expression which are intrusion with
Operation of any law
Sovereignty and integrity of the state
Public morality and decency
Defamation
Affecting the foreign relations with foreign states

Security of the state
Public order
Contempt of Court
Incitement to any offence
c. Both the rights of privacy and information are important and require
protection and in case of the conflict between the public interest must be
weighed[27].
IMPORTANCE OF INFOR MATIONAL RIGHT
1. To have a successful democracy, the voters must select the proper representatives
and for this action, there must be enough awareness in the public about the
contestants. A democratic republic is a part of the basic structure of Indian
Constitution, for this we need free and fair elections and for having unpolluted
healthy democracy, voters should be well informed[28].
2. For the effective participation of the citizens in the democratic process, they must
be well informed of the decisions taken by the government. Democracy,
therefore, expects openness and openness is the concomitant of a free society.
This necessitates a balance between public controversy, sentiments,
independence of decision maker and public interest[29].
3. The freedom of speech and expression includes right to acquire information and
to disseminate it which is needed for self-expression forming an important means
for conscience and self-fulfillment. It enables the people to express their ideas
about social and moral issues helping to circulate the information[30].
4. Thus it is important for democracy, citizens (as public) and for individuals too. It
also has significant uses like[31]
a. Easy and simple procedure to get access to information
b. Transparent and accountable India
c. Prevention of Corruption and anti-social activities
d. Elimination of mans distress and helplessness by providing
information and creating awareness
e. Shift from bureaucratic government to democratic and republic
f. Speedy disposal of cases
g. Minimizing manipulative and dilatory tactics in the babudom.
PROBLEMS
1. The Act, although sublime, still struggles in the claws of bureaucratic officials and
politicians. Here are some issues even not solved after the act:
a. Improper implementation of the Act
b. Huge illiteracy Rate
c. Lack of Awareness among rural and sub urban public
d. Confusion between State and Central Acts
e. Bow-wow Style of Officials
f. Bureaucratic style of government
2. Though India has a better Act than many countries, Indian is proven to not be a
transparent country. Indian media got 136th position in press freedom index
which shows the transparency and whistle blowing tendency of public and also
media.
3. For Instance, even there is a conflict of information regarding private individuals
and public officials. Any private person or body involved in criminal act must be
considered as a public official but though there is ample evidence to the wrong
doing, through the defense of criminal jurisprudence and court mechanisms, the
wrong doers escape from the view of public[32].
REFORMS
1. The legislation gives an unambiguous stature regarding the information but there
is still confusion because of two tier system which can be merged into one so that
it is easy to get the information or make complaints.
2. There is also a small contradiction in defining public authority, to eliminate this,
the private authorities must also be brought under the category as we have
mentioned it is going to deal only with the information available and no need for
further investigation this will make the definition easier and also the private
bodies to be aware of their duties.
3. With the advent of LPG (Liberalisation, Privatisation and Globalisation) from
2000, the private sector is growing exponentially and the role of the private
giants is increasing day by day and for transparency and proper functioning of
the government, it is necessary to include even the private authorities under the
RTI act and we can see the influence of Private Sector living on public money
through subscription or shares[33]. By utilizing the public money even the
corporates are run by public and public/ shareholders/ subscribers becomes the
owners of the corporate and they are accountable to public. Thus it also becomes
necessary to expose the private sector as the information not only is confined to
subscribers but also to future investors. For Instance, Reliance through its Jio
had not only a major impact on other mobile service providers but also on the tax
policy and anti-corruption move which is a governmental policy.
4. The government role must be made more primary by making them to conduct
obligatory training modules to create awareness among the rural and illiterate
public about the uses of the right to information. It must make people understand
that they have an irrefutable right over the public authorities.
5. The right to information must not only be limited to citizens but also to
foreigners as it will develop the trust of the foreign states and in this global village
it is necessary to be warm welcoming towards the foreign states as it will increase
the economic and political status of country in international Arena. Proper
regulations have to be made because elucidating information to alien states will
be a close call for using our own resources against us by the foreign states.
CONCLUSION
From the above discussion, we are clear about the Right to Information and the
struggles that the Indian Parliament went through to enact an Act. Learning is a never
ending process and great things can be achieved only when the individuals know what is
happening in their country. Every public record and document is accessible and this
availability will strengthen the minds and ideas of the public which in turn lead to
healthy discussions among the public and government. If an explicit truth is denied it
leads to attention which in turn will lead to the proper enactment to deal with the
problems? The ultimate issue is not with the law but with the implementation. The
executives and officials who are lazy and greedy tend to escape this mechanism through
false information and misinformation which will be protected in the name of national
security. Even the vital policies are performed in disguise with no say for a layman in the
policy in which he will be the major victim. It is impossible to consult 130 Crore people
to enact a law, rule, order or regulation but the utilitarian principle must be adopted to
check the necessity and use of the legislation or policy before implementing it.
[1] Dr. S. R. Myneni, Consumer Protection Law, 1stedn, Asia Law House, Hyderabad, 2012
[2] Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of
Bengal, AIR 1995 SC 1236
[3] 179th Law Commission Report

[4]Ibid 2
[5] S. P. Gupta v. Union of India AIR 1982 SC 149
[6] R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu and Others AIR 1995 SC 264
[7] Object Clause of Right to Informaion Act, 2005
[8] Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers, Bombay Pvt Ltd, (1998) 4
SCC 592; Tata Press Ltd v. Mahanagar Telephone Nigam Ltd (1995) 5 SCC 139
[9] Article 19 of Universal Declaration of Human Rights, Article 19 (2) of the International Covenant of
Civil and Political Rights.
[10] State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865
[11] Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2263
[12] Union of India v. Association for Democratic Reforms, AIR 2002 SC 2110
[13] S. 3 of Right to Information Act, 2005
[14]Bhagat Singh v. Chief Information Commissioner, (2008) 64 AIC 284 (Del)
[15]ArunLuthra v. Chattisgarh State Information Commission, AIR 2011 Chh 128
[16] S. 7 (1) of Right to Information Act, 2005
[17] Article 21 of Indian Constitution, 1950
[18] S. 19 (3) of the Right to Information Act, 2005
[19] H. E. Rajashekarapa v. State Public Information Officer, (2009) 73 AIC 453 (Karn.)
[20] V. Madhav v. Tamilnadu Information Commission, AIR 2012 Mad 5
[21] S. 23 of Right to Information Act, 2005
[22] Companies Act, 1956 and 2013, Societies Registration Act, 1860
[23]Shekhar Chandra Verma v. State Information Commission, Bihar, AIR 2012 Pat 60.
[24]Celsa Pinto (Dr.) v. Goa State Information Commission, AIR 2008 Bom 120
[25]KeshavanandaBharati v. State of Kerala, AIR 1973 SC 1461
[26] A. K. Gopalan v. Union of India, AIR 1950 SC 27
[27] State of Andra Pradesh v. Canara Bank, AIR 2005 SC 186
[28]Ibid 11
[29] Dinesh Trivedi, M. P, v. Union of India (1997) 4 SCC 306
[30]Ibid 2
[31] Object of RTI Act, 2005 and 179th law commission Report, 2001
[32]Ratan N. Tata v. Union of India, (2015) 5 SCC 639
[33] Companies Act, 2013
INDIA: THE YOUNGEST HUNGRY AND MALNOURISHED COUNTRY
VARUN AGARWAL
DR. RA M MANOHAR LOH IYA NATIONAL LAW U NIVERSITY
INTRODUCTION
A. In 2004, the infant mortality rate (IMR) in India was close to 65 and under- five
mortality rate (U-5MR) was around 95 per 1,000 born. Nearly 1.6 million of the
2.4 million under-five child deaths, died during the first year alone. Can this be
called a silent tragedy? The late James P Grant of UNICEF called it "Three
Bhopals every day of the year"[1]. The tragedy hasnt changed much, it is 2017 and
India is still home to one quarter of the worlds undernourished population, over
a third of the worlds underweight children, and nearly a third of the worlds
food-insecure people.[2] The Worlds biggest democracy and the second most
populated country has been a victim of hunger and malnutrition. A layman might
not find much of a difference in the meaning of hunger and malnutrition, but
technically these two evils have different ways of affecting human life. According
to the Oxford dictionary hunger is an uneasy sensation, exhausted condition,
caused by want of food. Whereas, malnutrition is caused by a combination of
factors such as lack of adequate food with sufficient nutrients and health care and
unsafe water sanitation. It is often due to the lack of optimal breastfeeding during
the first two years, particularly the lack of exclusive breastfeeding during the
first six months and the consequences are virtually irreversible. Frequent
childhood illnesses such as diarrhea and respiratory infections, chronic diseases
such as helminthes infections, inadequate caring practices, and poor appetite
contribute to malnutrition significantly[3]. Malnutrition, even during pregnancy,
not only causes death of children but also has sever long lasting consequences,
such as mental and physical impairment, chronic illness, and weak immune
system and reproductive health. It tremendously impacts development outcomes,
as more than 90 per cent of the brain actually develops during first two
years.[4]India continues to have serious levels of widespread hunger forcing it to
be ranked a lowly 97 among 118 developing countries for which the Global
Hunger Index (GHI) was calculated in 2016. Countries worse than India include
extremely poor African countries such as Niger, Chad, Ethiopia and Sierra Leone
besides two of India's neighbors: Afghanistan and Pakistan. Other neighbors Sri
Lanka, Bangladesh, Nepal and China are all ranked above India.[5]
B. An empathetic approach is required to address the problem effectively, young
and adults dying because of hunger and insufficient nutrients show a sad picture
of a developing nation with has misconceived priorities. The fact that India
produces sufficient food to feed everyone in the country attracts great concern
and makes the issue more severe. Huge economic disparity, ineffective policy
implementation, lack of awareness, social and cultural restraints, abortive food
distribution are some factors that have chained down the escape from hunger and
malnutrition.
C. A hunger free and well-nourished India is an achievable target which demands a
systematic and a well regulated approach from the Indian government and
society in general. Accordingly, Part 1 of this paper examines the measures that
are given in the Indian Constitution to overcome this problem, the assistance that
United Nations provides to adapt an integrated approach for eradication of
hunger and malnutrition and the steps taken by the Indian Judiciary. Part II
begins with analyzing the various schemes and programs that have been
launched till date, primarily focusing on their effectiveness, followed by
examining the certain amendment that are required in the current plan and the
new measures that can be implemented to effectively abolish hunger and
malnutrition. Finally, Part III closing with an overview of the main points
covered herein; leaves the reader with knowledge about the current stand of
Indian Constitution, judiciary and Government over the issue and the solution to
the short comings that are there in the present strategy.
PART 1
INDIAN CONSTI TUION

A. The longest constitution in the world was handed over to India after
brainstorming for 2 years 11 months and 18 days. The Indian Constitution is the
guardian of the country and the Fundamental Rights are his conscience. One part
of that conscience is Art 21, the protector of life and personal liberty. Article 21
states that No person shall be deprived of his life and personal liberty except
according to the procedure established by law.[6] The portion procedure
established by law would have made the articles interpretation completely
shallow but the landmark judgment of 7 judge Supreme court bench in the case
of Maneka v. Union of India[7] came to the rescue. It laid down that the art. 21 is
not a water tight compartment, the expression of personal liberty in art. 21 are of
the widest amplitude, covering a variety of rights. The right to life as enshrined in
art. 21 means something more than survival or animal existence and would
include right to minimum subsistence allowance during suspension and all those
aspects which goes to make a mans life meaningful, complete and worth living .
Hence by all means right to food and nutrition is a part of right to life and
personal liberty, because a hungry stomach and a malnourished body is incapable
of leading a complete and meaningful life and the deaths because of it are evident
enough to prove the violation of right to life.
B. Directive Principles of State policy are given in part IV of the Constitution (Article
36 51). Among many, one group under which some of these principles may be
classified is: Certain rights of the citizens which shall not be enforceable by the
court like the Fundamental Rights; but which the state shall nevertheless aim at
securing, by regulation of its legislative and administrative policy [8]. Accordingly,
Art.39 of DPSP states that the state shall direct its policy towards securing: (a)
adequate means of livelihood to all citizens; (b) a proper distribution of material
resources of the community for the common good[9] and Art. 47 declare as a
primary duty of the state to raise the level of nutrition and the improvement of
public health.[10] Hence, Art. 21 when read with Art. 39 and 47 clearly conveys
the message that Right to food and nutrition is a Fundamental Right which
Union and state governments must bear in mind while formulating policy and
making law[11].
UNITED NA TIONS
A. The coming decade, 2016-2025, has been declared by United Nations as the
decade of Action on Nutrition, plans will be executed worldwide to eliminate this
problem. Beside malnutrition, elimination of hunger has also been under United
Nations radar since the beginning. United Nations adopted Human Declaration
of Human Rights in 1948, Art. 25(1) of the specific declared that Everyone has
the right to a standard of living adequate for the health and well-being of himself
and of his family, including food[12]
B. International Covenant for Economic, Social and Cultural Rights signed by
United Nations General Assembly in 1996, asserts in Art. 11 that "The States
Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food" [13]and
"recognizing the fundamental right of everyone to be free from hunger" [14],

India is a party to the above mentioned agreement as well to the Convention on
Rights of the Child (1990). India, in Art. 24 affirmed that States Parties
recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation
of health.(paragraph 1)[15] and shall take appropriate measure To combat
disease and malnutrition, including within the framework of primary health
care.through the provision of adequate nutritious foods and clean drinking-
water(paragraph 2c)[16].
C. In 1990, when the United Nations Millennium Development Goals were
formulated, 53.5 percent of all Indian children were malnourished. Since then,
progress has been slow. In India, the proportion of underweight children below
three years has declined marginally between 1998-99 and 2005-06 to 46 percent.
In 2015, malnourishment declined to 40 percent. This is still below the target of
reducing malnourishment to 26 percent[17]. India couldnt attain the desired goals
with the help of the United Nations but neither of the two has given up on the
challenge. Transforming our World: the 2030 Agenda for Sustainable
Development labeled as Sustainable Development Goals has given India and
United Nations new targets to seize. The goal 2 among the 17 goals targeted by
United Nation is to end hunger, achieve food security and improve nutrition and
to promote sustainable agriculture.[18]
INDIAN JUDICIARY
A. "An impartial and independent judiciary was gradually built up in the British
times. The Constitution of India continued and strengthened this tradition by
incorporating into itself what may be called an integrated judicial system
designed to function impartially beyond the range of executive influence and
irremovable except by Parliament under circumstances prescribed by the
Constitution. A judicial system of this nature was essential to preserve and
maintain the ideals of democracy and freedom and of the Rule of Law embodied
in the Constitution,"[19]-MR. M.C. Setavald, Indias first Attorney-General. The
case of Swaraj Abhiyan v. UOI and Ors.[20] is a perfect example to portray Mr.
M.C. Setavalds intentions and Indian Judiciarys responsible approach towards
Right to Food and Nutrition. Sawaraj Abhiyan, NGO, filed a writ petition seeking
to declare drought in three states Bihar, UP and Gujarat and relief to the people
affected along with compensation. Supreme Court analyzed the matter and
concluded that neither the states have properly implemented National Food
Security Act 2013 nor milk nor eggs were given by them under the mid-day meal
scheme. The Court declared that immediate steps should be taken by states for
implementation of National Food Security Act 2013 and that milk and eggs
should be added to the mid-day meal scheme of the concerned states, providing
them to children five times a week or at least three times a week.
B. Maneka Gandhi v. UOI [21]expanded the scope of interpretation of the Art. 21
and Supreme Court in the case of PUCL v. UOI &Ors. Declared that Right to Food
is necessary to uphold Fundamental Right to live with human dignity under
Art. 21. PUCL(Rajasthan) filled a PIL in Supreme Court on discovering that
excessive amount of food grain was rotting in Food corporation of Indias
granaries when there are villages where people have adapted rotation eating due
to lack of food. Supreme Court observed that there was plenty of food to feed
people but the distribution of the same amongst the very poor and destitute was
scarce. The Court expressed its deep concern over the issue and immediately gave
order that all the Public Distribution system shops be re-opened within one week.
Food Corporation of India was made responsible to see that no food grain go to
waste and State were asked to properly implement various schemes that are there
to tackle this problem.
C. In CESC Ltd. vs. Subash Chandra Bose [22], the Supreme Court relied on
international instruments and affirmed that The term health implies more than
an absence of sickness. Medical care and health facilities not only protect against
sickness but also ensure stable manpower for economic development. Facilities of
health and medical care generate devotion and dedication to give the workers
best, physically as well as mentally, in productivity. It enables the worker to enjoy
the fruit of his labor, to keep him physically fit and mentally alert for leading a
successful economic, social and cultural life.
D. The cases mentioned above are evident enough to prove that Indian Judiciary has
vigilantly protected peoples Right to food and nutrition.
PART II
GOVERNMENT SCHEMES
A. The National Food Security Act, 2013(NFSA) converts into legal entitlements for
various food security programmes of the GOI. It includes the Midday Meal
Scheme, Integrated Child Development Services scheme and the Targeted Public
Distribution System, these three has been the frontline fighters against Hunger
and Malnutrition.
MIDDAY MEAL SCHEME

1. The Scheme was launched in 1995 and was implemented in full-fledged form in
2004. By offering midday meal to the government, government aided, local
bodies, Education Guarantee Scheme, and alternate innovative education
centers, Madarsa and Maqtabs supported under Sarva Shiksha Abhiyan, and
National Child Labor Project schools run by the Ministry of Labour[23] the
government has adopted a two pronged approach, besides providing a
wholesome nutritious meal every day it is also educating children by luring them
to attend school. In poverty stricken area it is very difficult to convince people
that primary education is necessary for their children because the benefits are
intangible. Moreover, the parents prefer sending their kids to earn bread. Midday
Meal Scheme works on a principle which not only helps in implementing Right to
Education but also feeds hungry and malnourished children. Assurance of a
single wholesome meal every day has made parents send their kids to school
instead of work. Midday Meal is by the far the largest school meal Programme in
the world.[24]
2. This scheme though, is a story of greater evils. There have been incidents where
students have died because of contaminated meal or the meal served has been of
below standard quality. In 2013, 27 children of a government school in Bihar died
after having a meal which contained organophosphorus compounds, mostly
found in insecticides.[25] The agony of their parents is unimaginable as believed
that midday meals can help their children survive. According to a performance
audit by CAG, In most of the test checked schools, prescribed inspections were
not carried out to ensure Fair Average Quality of food grains and quality of
midday meal served. Most schools sample checked in audit were lacking in
infrastructural facilities like kitchen sheds, proper utensils, availability of
drinking water facility etc. There were numerous instances of food being
prepared in open and unhygienic conditions exposing children to health
hazards.[26] The prescribed nutrition to children was not provided in test checked
schools of at least nine states.[27]
3. A more stringent approach is required to make Midday Meal Scheme a success

story. Officials responsible for regulating food standards and infrastructural
facilities should be penalized heavily if there is any short coming. Government
should also try to make it a two-meal scheme. Some fruits or other snacks should
also be provided to children before beginning the classes because majority of
children come hungry in the morning and it is not justified to expect that a
hungry kid will concentrate on his studies. Moreover, Other States can also learn
from Kerala Midday Meal Scheme, which is one of the most successful and
transparent scheme in India. School noon feeding committee is the reason
behind the success of the meal scheme. The committee has Parents Teacher
Association (PTA) president, the school headmaster, a local self-government
ward member, and PTA members, representative parents from the SC/ST,
minority communities and disabled kids as its members.[28]It convenes a meeting
every month and they look into the quality of products being purchased, the taste
of the food and financial aspects as well.
INTEGRATED CHI LD DEV E LOPMENT SERVICES
1. Launched on 2nd October, 1975, the Integrated Child Development Services
(ICDS) Scheme is worlds one of the largest programmes that supports early
childhood care and development. It is a scheme dedicated to care children in the
age group of 0-6 years, pregnant women and lactating mothers. It works towards
providing pre-school non-formal education and eliminating malnutrition,
morbidity, reduced learning capacity and mortality. Under the scheme children
below 6 years, pregnant women and lactating mothers are rendered with
supplementary nutrition, immunization and regular health checkups. Pre-School
Education to 3-6 years old and Nutrition & Health Education to women between
15- 45 years of age is also offered. ICDS services are delivered by Anganwadi
Workers (AWWs) at Anganwadi Centres (AWCs) at the village level. AWCs are
established based on the number of beneficiaries in the area. The norms
surrounding AWCs dictate that one AWC is meant to cover between 400-800
beneficiaries. However, in difficult-to-reach areas in the country such as the
North East, the norms change to one AWC for 300-800 beneficiaries.[29]
2. Inefficiency to meet the Millennium Development Goal of reducing hunger by
half before 2015[30] or 114th rank out of 132 countries on Global Nutrition Index,
2016,[31]speaks vociferously against the work of ICDS. Poor resource allocation,
Incompetent physical infrastructure and human capital, Poor governance are
some major factors that have hindered ICDS success. The government has to take
notice of state-wise resource allocation, poor states should get more resources
and rich states should be allocated less. Monitoring of AWC is also required,
shortfall between AWCs sanctioned and operational has to be minimized. There
has to be a different set of approach for different regions. In urban areas
malnutrition is not because of lack of food but because of wrong eating habits and
peoples inclination towards junk food whereas in rural areas even availability of
food is a problem. Here, municipality corporations are responsible to address
child and women health care needs and anganwadi workers are meant to provide
nutrition, but there is a lack of coordination between the two, such poor
governance is depriving people of their basic rights. ICDS success demands a
systematic and planned approach with short term as well as long term goals.
TARGETED PUBLIC D IST RI BUTION SYSTEM
1. In June, 1997, the Government of India launched the Targeted Public
Distribution System (TPDS) with focus on the poor. The scheme, when
introduced, was intended to benefit about 6 crore poor families for whom a
quantity of about 72 lakh tonnes of food grains was earmarked annually. [32]
Antyodaya Anna Yojana (AAY) was introduced under TPDS to focus on the
poorest segment of the BPL population. The main objective of AAY was to
provide to that segment of society which survives on less two meals a day, it was
launched in December, 2000 for one crore poorest of the poor families [33].People
were provided with food grain at highly subsidized rate of Rs. 2/- per kg for
wheat and Rs. 3/-per kg for rice, initial scale of 25 kg per family per month was
raised to 35 Kg per family per month with effect from April, 2002. [34] Some
revolutionary changes were bought in the Targeted Food Distribution Scheme
under Nation Food Security Act, 2013. It was declared that up to 75% of the rural
population and 50% of the urban population will be covered under TDPS, with
uniform entitlement of 5kg per person per month. However, since Antyodaya
Anna Yojana (AAY) households constitute poorest of the poor, and are presently
entitled to 35 kg per household per month, entitlement of existing AAY
households will be protected at 35 kg per household per month.[35] The huge
coverage of the scheme is a positive step towards Sustainable Development Goal
of eradicating hunger. Under the amended scheme, government has included a
large portion of those families which are not amongst the poorest of the poor but
still suffer from hunger and malnutrition because their income is insufficient to
fulfill all the necessities of life.
2. Initially TDPS witnessed huge criticism on the issues such as misidentification of
poor households, fake ration cards, poor accessibility and leakage of food grains,
lack of awareness etc. A large number of wrong exclusions were found based on
the size of landholding, type of house and ownership of assets during a field study
of Maharashtra villages.[36] In a study of six villages in Gujarat, 34% of the
respondents were wrongly included, based on a list of consumer durables. [37] A
Planning Commission study conducted in 200405 indicated that of every
Rs.3.65 spent by the Government of India, only Re.1 reaches BPL households.[38]
The Department of Food and Public Distribution, GOI, declared PDS Control
Order, 2001 with intentions of putting in place a well-functioning grievance
redressal system. The order made it possible to place grievances against quantity
and quality of essential commodities in the Fair Price Shop, to take action against
violations of its provisions under Essential Commodities Act, 1995 and to educate
ration card holders about their rights and privileges under the PDS.[39]After
several amendments, the latest TDPS control order, 2015 along with NFSA, has
increased the efficiency of TDPS drastically. But the process of NFSA
implementation has been really slow. The case of Swaraj Abhiyan v. UOI and
Ors[40] revealed that even after 3 years big states like Gujarat, Karnataka and UP
havent properly implemented NFSA, keeping the lives of millions at stake. TDPS
has worked greatly towards eradicating hunger and malnutrition, but to make it a
bigger success the Government of India needs to monitor the implementation of
NFSA more strictly and heavily penalize those states who delay the process.
PART III
CONCLUSION
A. India is the youngest country in the world and a potential superpower, a country
with such caliber has a severe disease called hunger and malnutrition. Millions of
people in India fight every day to survive hunger and malnutrition, some succeed
but some give up the fight. Beside death this disease causes physical and mental
impairment, chronic illness, respiratory infection etc. The cure to this disease lies
within the patient (India) and that is a strong immune system (Indian
Government) supported by healthy organs (Indian Constitution, Global
Assistance and Indian Judiciary). Fundamental Right to live with human dignity
(Art. 21) and duty of the state to raise the level of nutrition and provide adequate
means of livelihood under DPSP are some vital measures that the Indian
Constitution has provided to the Indian Government to give India pink of health.
Proper and honest functioning of Judiciary is must for a nations survival and
Indian Judiciary has done it every single day. Its interpretation of the
constitution on the concerned issue has been impeccable and justice has
prevailed under its vigilance, distribution of overstocked grains, proper
implementation of Midday Meal Scheme and restraining the govt. from making
aadhaar card necessary for welfare schemes are few steps that has been taken by
Judiciary. Millions of people in India possess great health and sufficient food
because whenever there has been a violation of right to food and nutrition,
Judiciary has tried its best to intervene and do the rightful, but judicial
intervention demands an approach to the Court. Measures like Writ Petition,
Public Interest Litigation etc. are at peoples disposal to seek justice and it
becomes the duty of the citizens to have faith in the Indian Legal System and fight
against any injustice that is done. United Nations has always been a great mentor
to India, organizations like WHO and UNICEF has not only done a lot of field in
the country but has also provided the government with viable assistance in
implementing various schemes. History has shown that India is not among the
best in following UNs guidelines; it missed the Millennium Development of
reducing poverty to 26%. India needs to learn from its mistakes take on the
Sustainable Development Goal of eradicating poverty with better planning. The
various schemes and programmes that have been launched by the Government of
India are progressive but possess many loop holes that are hindering its progress.
Corrupt and unethical workplaces, weak monitoring and lack of coordination
between state and center are the major causes that still deprive millions of people
of sufficient food and nutrients.
[1]Arun Gupta and Jon E. Rohde, Infant and Young Child Undernutrition: Where Lie the Solutions?
(2004) 39 Economic and political weekly 5213
[2] United Nations, The Millennium Development Goals Report (2015)
<http://www.in.undp.org/content/india/en/home/library/mdg/the-millennium-development-goals-
report-2015> accessed 24 June 2017

[5]SubodhVarmal, India ranked 97th of 118 in global hunger index Times of India ( New Delhi, 13 Oct.
2016) <http://timesofindia.indiatimes.com/india/India-ranked-97th-of-118-in-global-hunger-
index/articleshow/54822103.cms> accessed 24 June 2017
[6] D DBasu, Introduction to the Constitution of India ( Reprint, 20th edn,
LexisnexisButterworthsWadhwa 2009)
[7] 1978 AIR 597 (SC)
[12] United Nations, Universal Declaration of Human Rights (1948) art 25(1)
<http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf> accessed 25 June 2017
[13]United Nations, International Covenant on Economic, Social and Cultural Rights (1966) art 11
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx accessed 25 June 2017
[14] United Nations, International Covenant on Economic, Social and Cultural Rights (1966) art 11
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx accessed 25 June 2017
[15]United Nations, Convention on the Rights of the Child (1989) art 24(1)
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx> accessed 25 June 2017
[16] United Nations, Convention on the Rights of the Child (1989) art 24(2(c))
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx> accessed 25 June 2017
[17] United Nations, The Millennium Development Goals Report (2015)
[18] United Nations, Sustainable Development Goals (2017)
<http://www.un.org/sustainabledevelopment/hunger/>accessed 26 June 2017
[19] M. C. Setalwad, The Common Law in India [1960] Stevens & Sons Ltd 200
[20] (2016)7 SCC 498 (SC)
[21] 1978 AIR 597 (SC)
[22] 1992 AIR 573 (SC)
[23]National Food Security Act, 2013 Wikipedia The Free Encyclopedia

<https://en.wikipedia.org/wiki/National_Food_Security_Act,_2013> accessed 28 June 2017
[24]Miday Meal Scheme Wikipedia The Free Encyclopedia
<https://en.wikipedia.org/wiki/National_Food_Security_Act,_2013> accessed 28 June 2017

[25]Pallavi Singh, Everything You Wanted To Know About Mid-Day Meals Live Mint ( 19 July 2013)
<http://www.livemint.com/Opinion/bRmJIopPOFNx5onIwCjNcO/Everything-you-wanted-to-know-
about-midday-meals.html> accessed 28 June 2017
[26]Comptroller and Auditor General of India, Audit Report on Mid-Day Meal Schemes(2015)
<http://www.cag.gov.in/sites/default/files/press_release/36of2015.pdf> accessed 30 June 2017
[27]Comptroller and Auditor General of India, Audit Report on Mid-Day Meal Schemes(2015)
<http://www.cag.gov.in/sites/default/files/press_release/36of2015.pdf> accessed 30 June 2017
[28]Vikram Vinodi,Kerala midday meal scheme is one of the most-successful, transparent systems in
country Times of India (Kochi,15 May 2017) <http://timesofindia.indiatimes.com/city/kochi/kerala-
midday-meal-scheme-is-one-of-the-most-successful-transparent-systems-in-
country/articleshow/58676629.cms> accessed 30 June 2017
[29] Jonathan Gangbar and others, Integrated Child Development Services in India A Sub-National
Review (2014) The Institute for Social and Economic Change Working Paper
<http://www.isec.ac.in/WP%20318%20-%20K%20Gayithri_Final.pdf> accessed 30 June 2017
[30]United Nations, The Millennium Development Goals Report (2015)
[31]United Nations, The Millennium Development Goals Report (2015)
[32]Department of Food and Public Distribution, Public Distribution, NFSA and Computerization(2017)
<http://dfpd.nic.in/public-distribution.htm> accessed 2 July 2017
[35] Department of Food and Public Distribution,Salient features of the National Food Security Act, 2013
(2015) <http://dfpd.nic.in/Salient-features-National-Food-Security-Act.htm> accessed 2 July 2017
[36]MadhuraSwaminathan and Neeta Misra, Errors of Targeting (2001) 36 EPW
<http://www.epw.in/author/neeta-misra> accessed 2 July 2017
[37]Indra Hirway, Identification of BPL Households for Poverty Alleviation Programmes (2003) 38 EPW
<http://www.epw.in/journal/2003/45/discussion/identification-bpl-households-poverty-alleviation-
programmes.html> accessed 2 July 2017
[38] Nation Council of Applied Economic Research, Evaluation Study of Targeted Public Distribution
System in Selective States <http://dfpd.nic.in/writereaddata/images/TPDS-140316.pdf> accessed 3 July
2017
[39]Nation Council of Applied Economic Research, Evaluation Study of Targeted Public Distribution
System in Selective States <http://dfpd.nic.in/writereaddata/images/TPDS-140316.pdf> accessed 3 July
2017
[40] (2016) 7 SCC 498 (SC)
THE UNCONVENTIONAL PROCREATION

RATAN PRIYA BHARTI
NATIONA L LAW U NIVE RS ITY ODISHA
Biology is the least of what makes someone a mother.

Oprah Winfrey
1. Parenthood, as we perceive it, is a sum total of the biology of giving birth to a

baby, nurturing it with love, care and affection and feeling the joy of watching it
grow into a human of its kind. However, not everyone is graced with the blessing
of recreating a life, but that does not, in any sense, mean that motherly or fatherly
feelings lack in those who cannot conceive or nurture a baby biologically.
Parenthood, in its real sense, is a feeling and an emotion which connects one
human to another wherein one takes up the role of the nurturer and the other is
prompted to rely upon him for the entirety of his/her life. There are instances of
people extending more care, love and warmth to kids who themselves are
biologically incapable parents or do not have the joy of experiencing parenthood
because of unfavorable circumstances. This condition leads to a state of longing,
bitterness, depression and eventually leaves no way but to pray to the almighty
for some miracle. Surrogacy is an answer to their prayers.
2. Surrogacy, as we know it today, is not a contemporary fashion, although it has

significantly gained momentum in the past few years. The act of surrogacy has by
and large been practiced since time immemorial across a wide and diverse range
of cultural groups and classes. It, however, owes its traces back to the Biblical
times. The Old Testament of the Holy Bible has instances of traditional form of
surrogacy with examples of Jacobs two wives; Rachael and Leah, whose maid
servants underwent surrogacy. Also, the incident recorded in the Bible where
Abraham and Sarahs servant Hagar underwent surrogacy for her masters are
some of the earliest testimonies of the phenomenon of surrogacy.[1] In laymans
terms, Surrogacy is a condition where a woman agrees to carry a child/
pregnancy for some other person or persons, who become the intended parents of
the child. Medically, surrogacy is a method of child inception by the infertile or
involuntary parents, wherein another female agrees to carry an embryo for the
intended parent or parents either by way of traditional surrogacy or gestational
surrogacy. Traditional surrogacy refers to a phenomenon of fertilization of a
female by way of natural or artificial insemination i.e. introduction of semen into
the surrogate womans body through natural sexual means or by way of artificial
introduction of frozen sperms into the womans reproductive pathway. On the
other hand, gestational surrogacy is a boon to medical science where a fertilized
embryo is planted in the surrogate mothers body instead of insemination. This
not only saves the surrogate from any form of natural or artificial insemination
but also genetically connects the unborn child to both the intended father and
mother unlike traditional surrogacy where only the intended father has biological
rights over the baby.
3. Taking a closer look at this issue and analyzing it in the light of contemporary
prevalence, it becomes mandatory to speak of the monetary or commercial facet
of this undertaking. The act of surrogacy can also be disintegrated into two
categories on the grounds of the purpose for which it is undertaken: Altruistic
Surrogacy and Commercial Surrogacy. As the name suggests, Commercial
surrogacy is undertaken for commercial purposes i.e. for earning money. In
India, it has emerged as a profession or means of livelihood, particularly for the
poor women. On the contrary, altruistic surrogacy does not involve any sort of
monetary transaction. The word altruism means selfless regard and devotion for
the benefit of others. Altruistic surrogacy, thus, refers to an arrangement where
the surrogate woman does not receive any sort of monetary compensation in
return of her service of providing a child except the reimbursement for all
pregnancy related costs and medical expenses. This kind of surrogacy is mainly
based on friendly help, returning of favour or otherwise. On the contrast,
commercial surrogacy is purely a form of business contract with no emotions
involved, neither towards the unborn life nor towards the intending parents.
However, this again is a subjective matter. Speaking of the religious, social and
political acceptance of the two forms of surrogacy, it can be comprehensively
stated that neither of two is religiously, socially or politically accepted in its
entirety. However, different nations have different approaches towards this
affair. While some countries and parts of nations completely ban any form of
surrogacy, like Queensland, giving it a religious, moral and social angle, some
other countries like Australia, Canada, European Union [2], New Zealand etc.,
allow altruistic surrogacy whereas commercial surrogacy is a criminal offence.
The very obvious reason for doing so is preventing commodification and
exploitation of human body for financial gains.[3]
4. Despite opposing laws and opinions, countries like India, Russia, Ukraine and
some states of America have legalized commercial surrogacy. These countries
have taken a more liberalized and modernized opinion and categorically refuted
the arguments against commercial surrogacy by stating that there is no evident,
natural and logical distinction between the two divisions. The only reason why
some people and countries detest commercial surrogacy is the existence of
powerful gender norms which believe motherhood to be natural and selfless for
women with strong motherly feelings towards the child. Therefore, any form of
deviance from this norm and traditional belief poses a threat to the gender based
practices in the society.[4] Owing to this modernized outlook, some countries have
legalized commercial surrogacy and accepted it as a respectable means of earring.
India is one such nation which has legalized commercial surrogacy way back in
the year of 2002. The Apex Court, in the case of Baby Manji Yamada v. Union of
India & Anr.[5], had legalized commercial surrogacy in India. India is one of the
main destinations for surrogacy. Availability of potential surrogate mothers for
cheap rates coupled with it being legalized and presence of medical infrastructure
has boosted the growth of this industry drastically, both at national and
international level. In addition to this, India has also emerged as a destination for
fertility tourism, owing to ban or unavailability of sought fertility procedure in
the home country of the intended parents. Despite all these developments in the
field of reproduction, fertility and surrogacy, India still holds a ban on

homosexual and single parent surrogacy needs. Contemplating on the merits of
commercial surrogacy, it can be concluded that commercial surrogacy not only
provides monetary assistance to the woman in need but also to the entire family
that has to live through the pregnancy. Moreover, monetary remuneration also
aids to the mental health of the surrogate mother by enhancing mother- fetus
detachment. Research in this field show that money facilitates detachment
between the surrogate mother and baby, which is a basic need in the entire
process of child birth through surrogacy, provides an overall happy and positive
pregnancy experience for the surrogate mother and strengthens the relationship
of the baby and the intended parents.
5. Construing a clearer insight to the legal aspect of the issue of surrogacy, we need
to have a fair understanding of the legal standing of the act of surrogacy, the
rights of the surrogate mother, the child and the intended parents with the
obligations each one has to fulfill. As far as the legal nature of surrogacy is
concerned, the countries legalizing commercial surrogacy consider it to be a form
of contract between the surrogate mother and the intended parent or parents,
wherein the surrogate mother carries the baby in her womb for nine months and
gives her birth in return of monetary compensation along with reimbursement
for medical and other pregnancy related expenses. Moreover, the obligations that
arise out of such an agreement are contractual in nature wherein the surrogate
mother in under the contractual duty to hand over the child to the intended
parents as soon as he/she is born and the parents are under the duty to pay the
previously decided consideration to the bearing mother. Any sort of violation of
any such contractual obligation gives rise to legal action. Countries against
commercial surrogacy, like England and Australia, or even altruistic surrogacy, as
a matter of fact, are in a constant battle to illegalize and declare any such
surrogacy contract as null and void. With regard to the rights of the surrogate
mother and the intended parents over the child born out of such a surrogacy,
different nations have different assessment and laws. For example, Illinois, a
state in America extends all rights to the intended parents of the child as soon as
he/she is born. The surrogate mother has no right over the child.[6] However,
some countries follow complete adoption procedure in case of a child birth out of
surrogacy. Citizenship of the child borne out of surrogacy in another important
issue which arises now and then as a consequence of varied citizenship and
surrogacy laws. In India, for example, a surrogate child will have the same
citizenship as that of the surrogate mother until he/she is handed over to the
intended parents and a change of citizenship is applied for. The same was ruled
by the Supreme Court of India in the case of Jan Balaz v Union of India [7]. The
Court commented that their major concern is ensuring the rights of the surrogate
children and not of the surrogate mother or the biological parents. As a result, the
children will be extended the citizenship of the place of their birth and then
necessary arrangements will be made to send them to their intended parents,
where they can legally adopt them and apply for new citizenship for the kids. In
USA, however, a child can be a US citizen only when he/she is connected to the
US parent biologically. This leads to a situation where the surrogate child, borne
for intending parents of USA, can acquire American citizenship only if the
surrogacy is of a kind where it results from semen of the American father, egg of
the American mother or both. A surrogate child borne out of donor semen and
egg cannot acquire American citizenship unless adopted by the American
intended parents. Also, the situation of surrogate child birth without any
citizenship arises when the child can neither have the citizenship of the intended
parent without adoption nor have the citizenship of the surrogate mother because
of her not being the legal mother of the child. This condition does arise in many
countries, quite often.
6. Indulging into a deeper understanding of the legal facet and undertakings in this
regard on the global level, it is crucial to know what laws and regulations
different countries have enacted, what initiatives have been taken by them and
what is the take of international law for the same. Britain was the first country to
exercise official control over surrogacy by enacting its Surrogacy Arrangements
Act 1985. 11 out of 50 states of the USA have proper laws recognizing surrogacy
contracts. Both UK and some states of USA consider the surrogate birth mother
to be the legal mother of the surrogate child unless adopted by the intended
parents.[8] Greece is a country which fully legalizes both altruistic and commercial
surrogacy without imposing any restrictions on its practice. On the other hand,
countries like Nigeria and South Africa legalize surrogacy to the extent of
payment for medical expenses, transportation charges etc., which basically
means they allow some sort of altruistic surrogacy and not commercial aspect of
the same. With countries forming laws for or against the fashion of reproduction
with the help of surrogacy, there are nations which do not have any legal
provision governing the same. For example, Ireland has no concrete legislation
monitoring this aspect of society. However, increasing pressure and trends of
travelling abroad for surrogacy had prompted the Minister for Justice, Equality
and Defence to publish guidelines for same, on 21 February 2012. On the
international front, Permanent Bureau of the Hague Conference on Private
International Law studies the private international law issues in this regard,
especially the ones concerning legal parenting rights and issues arising out of
discrepancies in the laws of different nations. Moreover, in the year of 2015, the
Council on General Affairs and Policy of The Hague Conference issued a mandate
appointing an Experts' Group to look into the advancements made in this area
and handle disputes arising out of the same. These initiatives by and far have
given a more defined and protected outlook to the practice of surrogacy.
7. Like every other advancement of technology in the human society, whether

traditional or contemporary, surrogacy is also accompanied by a set of
advantages and disadvantages. Surrogacy not only provides for a man-made
means of reproducing life for otherwise naturally incapable parents but also
provides a means of bread earning for an otherwise unemployed woman. As
mentioned earlier, breeding and reproducing is not just a biological need for the
human species but also an emotional, psychological, sentimental longing and not
everyone is blessed with the fulfillment of this need by nature. As a result,
surrogacy acts as a boon to those who are unable to conceive or nurture a new
life. Along with couples who lack such a blessing, there are couples who are
naturally not meant to reproduce, for example, same sex couples. On one hand
where deciding who to have as a partner is a choice, reproducing by
consummation with him/her is unfortunately not. Surrogacy can thus make such
couples experience the ecstasy of parenthood. In addition to the advantages it
extends to the intended parents, the surrogate who actually undertakes to give
birth to such a child also benefits from such an arrangement, particularly in cases
of commercial surrogacy. Not everyone is blessed with money and other luxuries
of life which is why people resort to various ways of earning their livelihood.
Sometimes, situation or lack of education and other requirements render people,
especially women, jobless and penniless. Surrogacy can thus act as an efficient,
respectable and easy means of earning money because no work which fulfills ones
need along with helping ones in need can be considered amiss.
8. Making a quick reference to the well known saying about every issue having two
aspects just like every coin having two faces, it can be settled that surrogacy has
its own share of disadvantages which sometimes outweigh the positives
calculated collectively, especially in the Indian context. Enforceability of
surrogacy contracts attracts great deal of problems and inconveniences. Also,
surrogate mothers often complain of inadequate monetary help and
reimbursement along with breach of surrogacy contract by default in making
payments. In addition to the monetary aspects, some surrogates also complain of
lack of closeness with the intended parents, with some claiming to be
disrespected by them. Speaking of the Indian society, it can be very well deduced
that surrogacy is equated to an unethical and immoral way of earning money with
large sections of society abhorring it by attaching religious, ethical and moral
sentiments to it, dishonoring women engaged in such actions and perceiving it to
be threat to their so called clean and conservative culture. Apart from the
miseries of the surrogate mothers, the intended parents and the surrogate
children also face similar misfortunes. The intended parents often face situations
where the surrogate mothers become too attached to the unborn baby and refuse
to handle the babies to the rightful parents. This situation worsens in countries
where the surrogate mother is considered to be the legal mother of the surrogate
child until adoption takes place, like Britain and some parts of the United States
of America. Other complications arise out of the legality of the surrogacy
contract, surrogacy laws of the guest and host country, if it is an overseas
surrogacy arrangement, and citizenship rights of the child. The most affected
party in the contract for surrogacy turns out to be the child whose life is the
subject matter of the contract. The child faces a lot of problems all throughout his
life if the surrogacy arrangement turns sour. Studies reveal of cases where the
intended parents have refused to take the child with them once he/she was born.
In such circumstances, the child not only faces problems regarding his future
expenses and undertakings but also fights for the basic requirement of an identity
and citizenship, for that matter. Also, sometimes the surrogate mothers become
so detached with the child in their womb that they risk the lives of the child in
cases of any kind of inconvenience caused to them by the intended parents in
terms of money and other demands. As a result, courts have now become more
concerned about the needs and rights of the child. They aim at addressing and
taking care of the child and his rights, needs and requirements before addressing
the concerns of the surrogate mothers or the intended parents. Having made an
effort to cover all the relevant aspects of the issue of surrogacy, it now calls for an
appropriate summing up of all the facts and details and giving a much deserved
ending to this piece of writing.
9. On a concluding note, it can be rightfully declared that surrogacy, a medically

created miracle for human kind, has long been a boon to those in need and curse
to those placed in an unfavorable situation. Theoretically and philosophically, it
aims at working for a good cause but practically it breeds different results to
different people, based on the situation they are placed in, the surroundings they
walk through and the fortune they hold. Thus, the nations should come up with
more efficient legislations, the international arena should make internationally
acceptable laws and regulations with clearer dimensions to inter-state

interactions in this regard and the society should hold a different and more
liberal viewpoint where needed, so as to provide hope to people and extract
maximum benefit out of the practice of surrogacy which owes its origin back to
the world of Christ and even before.
[1] Sharyn Roach Anleu, Surrogacy: For Love But Not for Money? (1992) 6 Gender and Society 31.
[2] European Charter of Fundamental Rights, art. 3.
[3] Louise Anna Helena Ramskold and Marcus Paul Posner, Commercial surrogacy: how provisions of
monetary remuneration and powers of international law can prevent exploitation of gestational
surrogates (2013) 39 Journal of Medical Ethics.
[4] Eric Blyth, Children's Welfare, Surrogacy and Social Work (1993) 23The British Journal of Social
Work.
[5]Baby Manji Yamada v. Union of India &Anr [2008] 13 SCC 518.
[6] Elizabeth S. Scott, Surrogacy and the Politics of Commodification (2009) 72 Law and Contemporary
Problems.
[7]Jan Balaz v Union of IndiaAIR 2010 Guj 21.
[8]Commercial Surrogacy (n 3) 400.
Right to Education in India

SAYALI SHRIRAM JOSHI & NIK ITA AJAY SHAH
RIZVI COLLEGE OF LAW , MU MBAI UNIVERSITY
PRAVIN GANDHI COLLE GE OF LA W, MUMBA I U NI VERSITY
I. BACKGROUND
Education is a fundamental human right, essential for the empowerment and

development of an individual and society as a whole. Way before the beginning of the
freedom movement in India the need of education had been felt by the Indian social
reformers like Raja Ram Mohan Roy, Swami Vivekananda, Jugul Kisore Sukul etc. Also,
the leaders of the freedom movement of India recognized the role of education. In spite
of the vast diversity in society and social structure in indigenous education, there were a
large number of draw backs in social structure as of result of which huge disparity was
created amongst various strata of the society. The gap between the rich and poor
affected the growth and development of the society in every section including education
due to which the poor had no means and access to quality education as they were
subjected to cruelty and slavery. On the other hand the rich and people belonging to
upper class had access to education and opportunity to impart knowledge. The situation
prevailing for the Dalits and other backward classes was even more miserable. Being
considered as untouchables, they were denied of basic and primary knowledge and
education since they had no access to books or schools leaving them with no opportunity
for education. The shape of inequality in society created a huge gap between the
education level between rich and poor. To make it worse along with class
discrimination, there was discrimination based on sex as well a result of which girls/
females that were considered as a liability was not given the opportunity to attain
education since they had no right to build a career. As their sole responsibility was
considered to do household chores and bear children. During a time when grievances of
women could hardly be heard, Savitribai Phule broke all the traditional stereotypes of
the 19th century to boost a new age of thinking in British colonised India. She worked
very hard to abolish discrimination and unfair treatment of people based on caste and
gender. She is regarded as an important figure of the social reform movement in
Maharashtra. At the time when education to females was given no importance at all,
looking at her thirst for learning, Savitribai's husband, Jyotirao, taught her to read and
write. Jyotirao Phules contribution was just not limited to this. During that period,
when the rights of women were almost non-existent, Savitribai, along with her husband,
started the first women's school at Bhide Wada in Pune with only 8 girls during the
initial period and this initiative by them was full of struggle since education for girls was
considered a sin. She had to face enormous hardships while educating these girls as on
her way to school, Savitribai was routinely harassed by orthodox men, who threw
stones, mud, rotten eggs, tomatoes, cow-dung and dirt at her. Thus, it is evident from
the history of India that attaining education has never been an easy affair. Even post-
independence, the Constitution of India has no specific provision to protect and
promote Right to Education.
II. CONSTITUTIONAL PROVISIONS
a. Initially right to education were not a fundamental right and no provision

regarding education as a right was included in the Indian constitution. Before the
Constitution of India was amended in the year 2002, to make Right to education
a fundamental right, it was the Kerala High Court who had recognized this right
in the light of Article 21[1]. The Fundamental Right to Life, as stated in Article 21
of the Indian Constitution, guaranties to the individual her/his life or personal
liberty which cannot be taken away except by a procedure established by law. The
Supreme Court has widely interpreted this fundamental right and has included in
Article 21 the right to live with dignity and all the necessities of life such as
adequate nutrition, clothing, sanitation, education. [2]
b. Article 21 of the Indian constitution which deals with Protection Of Life And
Personal Liberty - states that - No person shall be deprived of his life or personal
liberty except according to procedure established by law. It was observed in Unni
Krishnans case[3] that Article 21 is the heart of Fundamental Rights and it has
extended the Scope of Article 21 by observing that the life includes the education
as well as, as the right to education flows from the right to life. Also in the case of
Maharshi Mahesh Jogivs State Of M.P[4], the Supreme Court had observed that
The right to education flows directly from right to life. The right to life under
Art.21 and the dignity of an individual cannot be assured unless it is accompanied
by the right to education. The State Government is under an obligation to make
an endeavor to provide educational facilities at all levels to its citizens. Thus
right to education is a fundamental right enriched in the light of Art.21. [5] The
main object of Article 21 is that before a person is deprived of his life or personal
liberty by the State, the procedure established by law must be strictly followed.
Right to Life means the right to lead meaningful, complete and dignified life. It
does not have restricted meaning. It is something more than surviving or animal
existence. In a series of judgments the High Courts and Supreme Court via
judicial activism had repeatedly held education to be a fundamental right even
before the passing of the right to education act 2009. The case of Mohini Jain vs.
State of Karnataka[6] is one such example. In this landmark case, a writ petition
was filed by Miss Mohini Jain who was a resident of Meerut against the
management of Sri Sriddharatha Medical College, Agalokote, and Tumkur in the
State of Karnataka. The facts of the case were that Miss Mohini was offered a seat
in the above mentioned Medical College for the course of MBBS on the payment
of initial deposit of Rs.60, 000/- in the year 1991. However, Mohinis father
informed the college authorities that the fees were too exorbitant and that he
could not afford them. The consequence was this was that Miss Mohini was
denied admission in that medical college. Invoking Art.32 [7] of the Constitution of
India, a writ petition was filed in the Supreme Court of India. While delivering
this landmark judgement, Kuldip Singh J held that It is no doubt correct that
"right to education" as such has not been guaranteed as fundamental right under
Part III of the Constitution but emphasizing on Articles 21 (in Part III of the
Constitution of India), Article 38, 39(a), (f), 41 and 45 (in Part IV of the
Constitution of India) cumulatively it becomes clear that the framers of the
Constitution made it obligatory for the State to provide education for its citizens.
Thus, Art.21 and Right to education were given the widest possible interpretation
for the first time ever through this landmark judgement.
c. Although education was considered to a fundamental right when interpreted in
the light of article 21 there was a need for incorporating education as a separate
fundamental right in the constitution for better implementation of this right and
also to serve the purpose of article 14 which deals with equality so that education
as a right can be obtained by one and all irrespective of caste creed and sex.
Spurred by the Unnikrishnan judgment and a public demand to enforce the right
to education, successive governments from 1993 worked towards bringing a
constitutional amendment to make education a fundamental right. Therefore,
with the 86th Constitutional amendment on 12th December 2002, Article 21A was
inserted in the Constitution in order to introduce Right to Education as a
fundamental right to provide free and compulsory education of all children in the
age group of six to fourteen years as a Fundamental Right in such a manner as
the State may, by law, determine.
d)The Constitutional Amendment of 2002 that included the Article 21A in the Indian
constitution made Education a fundamental right. This amendment, however,
specified the need for a legislation to describe the mode of implementation of the
same which necessitated the drafting of a separate Education Bill. A draft bill which
was prepared in the year 2005 which gave rise to huge controversy as it contained
provisions for reservation for disadvantage and disabled children as well as
minorities. The matter was referred to Supreme Court which settled all the
controversies by stating that the act would not be applicable to minorities and a new
draft was prepared. The said new draft with necessary changes was approved by the
cabinet on 2 July 2009. Rajya Sabha passed the bill on 20 July 2009 and the Lok
Sabha on 4 August 2009. It received Presidential assent and was notified as law on
26 August 2009 as The Children's Right to Free and Compulsory Education Act and
finally came into force with effect on 1st April 2010 to the whole of India except the
state of Jammu and Kashmir. The Act provides for free and compulsory education to
all children in the age group of six to fourteen years without any kind of fee or
charges or expenses which may prevent him or her from pursuing and completing
elementary education. It is now a legally enforceable duty of the Centre and the
states, to provide free and compulsory education.
III. RIGHT TO EDUCATION ACT, 2009:
A. INTRODUCTION:
It is interesting to note the literacy rate in India. According to the 2011 census, the total
literacy rate of India was 74.04% with 82.14% male literacy and 65.46% female literacy.
The State of Kerala recorded the highest rate of literacy of 93.91% in 2011 census.
Whereas, the State of Bihar recorded the lowest rate of literacy with approximately 63%.
Thus, a gradual increase in the literacy rate can be noted through years. Thus it would
not be inappropriate to state that the Government of Indias step to pass the Right to
Education Act, 2009 has yielded some fruitful results.
SALIENT FEA TURES OF TH E RIGHT TO EDUCATI O N

ACT, 2009:
a. The Right to Education Act (herein after referred to as the Act) was passed by
the Parliament of India with the basic motive to provide for free and compulsory
education to children below age of 14years. This Act extends to the whole of India
except the state of Jammu and Kashmir. The Act came into force on 1st April,
2010. The Act makes education a fundamental right for children between the
ages 6 to 14 years in the neighborhood school till the completion of his/her age.
Where the child above the 6years of age has not been admitted to any school or
though admitted could not complete his/her elementary education then under
such circumstances the act entitles such children to attain and complete his/her
elementary education by securing an admission in the appropriate class.
b. Now it is important to note the exact meaning of the terms free education and
compulsory education. The Act states that it is the duty of the State to provide
for (i) free elementary education to every child of the age of six to fourteen years;
and (ii) ensure compulsory admission, attendance and completion of elementary
education by every child of the age of six to fourteen years.
c. Thus, compulsory education means that it the duty of the appropriate
government and the concerned authorities to provide for education facilities to
the children and ensure their attendance at such institutions. It is also further
provided that the appropriate government should make this elementary
education available to the children free of cost i.e. the child should not be
compelled to pay any kind of fee or any other charges. However, where a child is
voluntarily admitted by his or her parents or guardian, as the case may be, in any
school other than a school controlled directly or indirectly by the appropriate
Government or a local authority, such child or his or her parents or guardian, as
the case may be, shall not be entitled to make a claim for reimbursement of
expenditure incurred on elementary education of the child in such other school.[8]
d. The following are the key features of the Right to education Act:
Every child has the right to receive free and compulsory education.
It is the duty of the State to provide for elementary education to children between
the ages 6 to 14 years.
The Act bans all the schools and any persons from collecting any capitation fee
and subjecting the child or his or her parents or guardian to any screening
procedure.
Also, as per the rules of the Act no child can be denied admission in any school
for lack of age proof.
Also, the educational institution should not be hold back in any class or expel
any child from the school till the completion of elementary education.
The Act specifically bans subjecting any child to any form of physical or mental
harassment at schools.
The act casts various duties on the Local Authority such has monitoring the
schools, maintaining the records of children up to the age of fourteen years
residing within its jurisdiction, ensuring that the child belonging to weaker
section and the child belonging to disadvantaged group is not discriminated
against and prevented from pursuing and completing elementary education on
any grounds; and so on.
The act also entrusts the Central Government with the duty to provide for
infrastructure including school building, teaching staff and learning equipment.
Also, it is the duty of the Central Government to ensure timely prescribing of
curriculum and courses of study for elementary education; and to provide
training facility for teachers.
The Act also lays down rules regarding Pupil Teacher Ratios (PTRs).
The Act prohibits teachers in engaging himself or herself in any private tuition or
private teaching activity.
No school shall be established, or recognised, under section 18, unless it fulfils
the norms and standards specified in the Schedule.[9]
It is also interesting note that the Act has also assigned certain duties to the National
Commission for Children.
The National Commission for Protection of Child Rights constituted under section 3,
or, as the case may be, the State Commission for Protection of Child Rights constituted
under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of
2006), shall, in addition to the functions assigned to them under that Act, also perform
the following functions, namely:--
examine and review the safeguards for rights provided by or under this Act and
recommend measures for their effective implementation;
inquire into complaints relating to child's right to free and compulsory education;
and
Take necessary steps as provided under sections 15 and 24 of the said
Commissions for Protection of Child Rights Act. [10]
Apart from the provision of the Right to Education Act and Art21 and Art.21 (A), the
Constitution of India also has various other provisions regarding the right to education.
They are outlined in various Articles as stated below-
Article 29(1) state No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds, on grounds
only of religion, race, caste, language or any of them.However, it is evident from
the concluding words of this article that the educational institutions are not
barred from imposing reasonable restrictions on the children. It was held in State
of Bombay v/s Bombay Education Society[11], that the institution reserves the
right to expel any students on valid grounds like indiscipline. And that such
would not amount to abuse of powers.
Article 30 of the Indian Constitution lays down the following:
-All minorities whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
-The state shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority,
whether based on religion or language.
As per Article 45 of the Directive Principles of State Policy contained in part IV,
The state shall endeavour to provide within a period of ten years from the
commencement of this Constitution, for free and compulsory Education for all
children until they complete the age of fourteen years.
As per Article 46 of the Directive Principles of State Policy contained in part IV of
the Constitution, the federal government is responsible for the economic and
educational development of the Scheduled Castes and Scheduled Tribes.
By the 86th constitutional amendment 2002, one more Fundamental duty has
been added to the Indian Constitution which castes a duty upon a parent or
guardian , to provide opportunities for education to his child, or as the case may
be, ward between the age of six and fourteen years.
Along with the above mentioned constitutional provisions and the Right to
Education Act, there are certain provisions under laws passed in India that uplift
and promote the Right to education indirectly. As for instance, Sec. 125 of
Criminal Procedure Code, 1973 deals with the provisions relating to maintenance
of wife, children and parents.[12] However, there have been conflicting views in
past as to whether the right to receive maintenance would include the cost of
education as well. However, in the landmark judgement of Marry ShewBo.v Ma
Thein Nya [13], it was held that maintenance should be awarded in such a manner
so as to provide simple and basic education to the child.
IV. CONCLUSION
a. Right to education act was implemented with its prime object to promote free
and compulsory education amongst childrens in the 6-14 age groups belonging
to all strata of the society without any discrimination based on caste, sex or class.
Yet there is huge difference in the education ratio especially in rural and urban
areas. There has been a massive increase in education ratio in urban area but that
of rural areas is still miserable. The main reason is lack of amenities and
awareness in rural areas along with lack of motivation. Some government schools
in rural India were overly packed with students, leading to a distorted teacher-
student ratio which was resolved after the implantation of the RTE act.
b. To curb this problem various steps have been taken by governmental as well as
private authorities/institutions. Numerous seminars, workshops are now
conducted in villages and other rural as well as urban Areas to educate the
masses regarding the importance of education. Also, many NGOs have played an
active role in educating the unprivileged sections of the society. Governments
initiative of providing free primary education has also boosted the number of
students attending school in much rural as well as urban area since poverty is one
of the main reasons why childrens are not send to school. However, the
government has to reach more rural areas to bring more students to schools to
make this scheme more effective. Another initiative taken by government to boost
the number of children attending school is introducing the mid-day meal scheme
under which childrens attending schools are provided meal free of cost on all the
days when they attend school. This serves a twofold purpose Firstly, at least for
free food childrens are excited to attend school and study instead of working as
child laborers, secondly they get nutritious food which in turn take care of their
health. Recently government has also started providing uniform, textbooks, shoes
and other amenities to ensure that lack of uniform and money to purchase book
is not a hindrance to education. Also, government in various extremely backward
areas is now also giving money to parent on all the days when they send their
children to school on days. This also has helped to boost education in backward
and undeveloped sections of the society. Since it is a common trend amongst the
masses to follow the act their favorite celebrities, many TV and movie starts have
also taken an active role in promoting education by urging the people to send
their childrens to schools via short ad films and road shows. Also, a positive step
has been taken to promote girls education as well as of those who are aged as a
result of which a school was opened especially people in their 50s and plus. All
these steps are helping to achieve the object of the Right to Education Act which
are essential for the empowerment and development of an individual and the
society as a whole
[1]P.Cherriyakayavs union of India, AIR 1994. Ker.27

[2] Constitution of India, 1950.
[3]1993 AIR 2178, 1993 SCR (1) 594
[4] 3 July, 2013
[5]Ashoka Kumar Thakur vs Union of India - (2008) 6 SCC
[6] 1992 AIR 1858, 1992 SCR (3) 658

[7]The right to move the Supreme Court by appropriate proceedings for the enforcement of the
fundamental rights
[8] Right to education act Sec.8(a)
[9] Right to Education Act, Sec.19(1)
[10] Right to Education act, Sec 31(1)
[11] 1995 I S.C.R.568
[12] Criminal Procedure Code,1973, (Currents Bare Act ed.2013)
[13] 40 Cr. L.J.440
Right to Information Act, 2005- Critical Study

AJOY JOSE
RAJIV GA NDH I SCH OOL OF INTE LLECTUAL PROP ERTY LAW, IIT
KHARAGPUR
The real Swaraj will come not by the acquisition of authority by a few but
by the acquisition of capacity by all resist authority when abused
Mahatma Gandhi
1. We the participants of democratic system have the right to know what, why and how
the decisions are made or changed with regard to its functioning. By virtue of owing the
system the right to information is inherent in citizen. Fundamental right to freedom of
expression and the right to life and various judicial decisions endorsed legal justification
of right to information. Every public act which is done in a public way, by public
functionaries is meant to be known. The responsibility of officials to justify their acts is
the chief safeguard against oppression and corruption[2].
2. Any citizen of India can ask for any information from public authorities or public
servants subject to certain clause with the passing of Right to Information Act, 2005 [3].
This is one of the key steps for the direction of accountability and transparency. But
what is the use if there is no response to RTI application? Then will it defect whole
purpose and rationale of the act?
New age of transparency and peoples access to information has ushered by Right to
Information Act, 2005 in India. However, Government and Judiciary pose a serious
threat to Right to Information Act.
3. This research work is based on the theoretical study of the subject. The theoretical
work will deal with the articles, review, and literature relating to the topic. The study
shall also be conducted through websites, journals, books and newspapers.
4. The Right to Information Act, 2005 is different and one of its kind. It has been
enacted to maintain the transparency between the public who are beneficiaries and the
government working. The Act aims to curb the corruption by making the government
more transparent and accountable.
5. As a citizen we should know how our government functions, and then only we can
give any informed opinion. The basic idea of democracy is citizen being center of
governance. Though Freedom of Press is not expressly mentioned in the constitution, it
is guaranteed through Freedom of Speech and expression under Art 19 of the
Constitution of India. Freedom of Press is considered to be essential element for a
democracy. The objective behind freedom of press is to ensure that citizens are well
informed. Citizens Right to Know plays an important role in democracy.
6. Right to Information plays an important role in attainment of social, economic and
political rights of an individual as well as for the larger group of community. Citizens of
India can access the records of Central and State government with the help of Right to
Information Act, 2005. Citizens may request the information from any public authority,
which is considered to be a body of government or instrumentality of state and they are
required to reply within thirty days. The Act mandates every public authority to
computerize the records, so that it will help in minimum recourse to request for
information formally. Exception under Right to Information includes Parliamentary
Privilege and National security.
Movement for Right to Information in India began in the year of 1990 when the MKSS
[4] was formed. Members were paid less than the guaranteed minimum wage as per the
state employment generation scheme. Through live wire village based public hearing,
MKSS adopted the means of placing disclosed information in the public domain.
Famous slogans like OUR MONEY, OUR ACCOUNTS [5] and WE WILL KNOW, WE
WILL LIVE [6] are raised from this movement. Movements for RTI are coextensive.
Right to Information was demanded as right to receive minimum wages, right to obtain
famine relief or right to work. The Rajasthan experience on demanding RTI was echoed
in other states.
An NGO in Andhra Pradesh LOKSATTA has undertaken mass awareness campaigns
across the state through post card campaign. Tamil Nadu, Goa, Karnataka, Rajasthan,
Delhi, Assam, Madhya Pradesh, Maharashtra, Jammu Kashmir introduced RTI Act.
Among all these Acts Maharashtra Right to Information Act was considered as a Model
Act and Tamil Nadu Act was considered to be the most innovative one. Civil Society
Organizations along with the various sections of the society as raised the growing
demand for the right to the public information, which could no longer be ignored by
state. Every liberal democracy is moving towards Open government. It is regarded as
new democratic culture of an open society. Our country should be no exception to the
same[7].
7. Right to Information Act, 2005 is one of the major step which pays the way to the
reformation and modernization of the Government[8]. It is a special law and social
welfare legislation [9]. Right to Information Act applies to both state and central
governments and all public authorities. A public authority can be any body or authority
or institution of self-government constituted or established by or under the constitution,
by any other law made by Parliament or State Legislature by an order made or
notification issued by the appropriate government and includes any, body owned,
substantially financed or controlled, directly or indirectly funded by the appropriate
government.
8. As per Sec 2(f) of the RTI Act information can be documents, records, advices,
memos, opinions, e-mails, advices, orders, press releases, circulars, log books, contracts,
models, reports, papers, data material, samples held in any electronic form and
information relating to any private body which can be accessed by a public authority. It
is to be noted that Act regards only information which is in written form. Oral
expressions will not come under the ambit Sec 2(f) of the RTI Act.
9. Right to Information Act can be categorized into two parts: Substantive Law and
Procedural Law. The citizen seeking information has to send the application to Assistant
Public Information Officers and they have to transmit it to Public Information Officer
within 5 days. The Public Information officer has to respond to it within thirty days. He
should make sure that he is giving full information as requested. If full information is
not available whatever is available should be transmitted. Information Officer shall also
state the reason for the rejection of Information. If the response is not satisfactory the
applicant can file for the appeal to the Senior Officer. If he is not satisfied yet then he
can move for second appeal before State/Central Information Commission. Thus, we
can say it is a four tiered mechanism starting from Assistant Public Information Officer,
Public Information Officer, senior officer and finally Information Commission. The
Information Commission will prepare an Annual Statement of number of applications
received, reason for disposal and work done so far. The Act also imposes penalty for
erring the officials.
10. Human security, environment, food, shelter, employment opportunity are all
associated with right to information. If there is absence of information in any of these
issues then people cannot live a dignified life. It is sad to say criminalization and
corruption is becoming nerve to the Indian bureaucracy.
Right to information has incorporated in different international human rights
documents in international arena. In the beginning of 1946, United Nations accepted
Right to Information as an important right. General Assembly resolved it as a
fundamental human right and touchstone for all the freedom [10]. International covenant
on civil and political rights, Universal declaration of Human Rights, International
covenant on economic, social and cultural rights are some of the examples. Documents
like American convention on human and people rights, European convention for the
protection of human rights and fundamental freedom incorporates right to information
at a regional level.
11. As a citizen of India it is our right to know every public act which done in a public
way by public functionaries. Art 19(1)(a) deals with freedom of speech and expression
and it includes right to information[11]. It is not absolute in nature. Every official is
having the responsibility to justify and explain their public acts. This is considered to be
the main safeguard against corruption and oppression [12]. It is to be noted that freedom
of speech and expression also includes right to receive and impart information from
electronic media[13]. It is the right of every citizen to know about the public act and
details of transactions undertaken by public functionaries[14]. Right to information was
elevated to the status of human right. It plays an important role in making governance
accountable and transparent. This can be attained only by participatory governance[15].
12. Right to information includes right to inspect documents, records, take certified
copies of documents or records, certified samples of materials, and obtain information
in form of printouts, video cassettes, diskettes, tapes, floppies or in any other electronic
mode or printouts.
13. Right to information is an invaluable tool that makes every citizens life better. It
tries to bring truth in the society. Thats does mean that it creates information. It draws
the curtain to bring the truth in the society. It is hypothetical to think that government
gets flooded with RTI applications. Filling and pursuing RTI takes time and energy. So
the practical scenario is that unless and until if the person really wants the information
he/she will go for it.
14. Private enterprises are not completely out of the ambit of Right to Information Act as
they are dealing with public money. It is having direct bearing on public life. In this
Digital era, Right to information is not enough to obtain all the information that the
citizen might seek to have.
15. Some countries in the world has implemented legislations which is similar to right to
Information Act. Swedens Freedom of Press Act, 1766 is the oldest among all. The
Research, reference and training division of the national documentation Centre on mass
communication under the ministry of information and broadcasting adds value to this
information. Since 1810, Sweden has been enjoying right to know. Later it became part
of countrys constitution itself. Freedom of Information Reform Act 1986, Freedom of
Information Act 1982, are some of the act which was enacted by USA and Australia
respectively. American Constitution does not deal specifically with right to information.
However such right can be derived as a subset of First Amendment Freedoms[16].
16. In Great Britain, Official Secrets Act, 1911 are intended to defend national security by
not making certain categories of official information to public[17]. However Britishs
government also recognizes access to information is an essential part of
accountability[18]. Local Government Act, 1985, Environment and Safety Information
Act, 1988 and Access to health records Act, 1990 are some of the examples. India has
followed British system of administration. In 2002, Freedom of Information bill has
introduced in the Indian Parliament. Right to Information Act finally came into
existence in the year 2005.
17. As identified by the World Bank document on Governance and Development in the
year 1992, Accountability and transparency constitute two of the seven specific aspects
of governance. The citizens, the beneficiaries of development programmes, the civil

society organizations, the stake holders, the consumers of public services, the business
and commercial houses relating to their administration, decisions or operations, all
must get the information as they require from public authorities.
18. All citizens shall have the right to freedom of speech and expression. In the year
1982, the Supreme Court of India held that Access to government information is an
important aspect of the fundamental right to freedom of speech and expression under
Indian Constitution. Right to know is derived from Art 19 of the Constitution of India.
Therefore, we can say that disclosures of information with regard to government
function must be the rule and secrecy should be exception. This exception is justified as
strictest requirement of public interest.
Rights are the interest which are recognized, enforced and protected by law. Unless and
until the citizens are well informed on the issues, which they are called upon to express
their views, the right to participate in the affairs of the country is meaningless.
Misinformation, one-sided information, non-information, disinformation all equally
creates uninformed citizens. This pays the way for making democracy a farce, as the
information is asymmetric either by a partisan central authority or oligarchy
organizations or by private individuals[19]. Horizon of Right to Information has
expanded so much. It is considered to be an offshoot of Art 21 of the Constitution of
India[20].
19. Right to Information Act, 2005 is undoubtedly a progressive step. Only after the
implementation process starts we will get to know the deficiencies of the Act in a better
way. Improvements are always possible in a statute. For the free flow of information, the
act provides for the appointment of Public Information officers. But there was a delay in
appointment even after the lapse of time mandated by the Act. Sometimes people get
confused whom to address and serve request because there is no specific mention of
Public Information Officers and Assistant Public Information Officers.
20. As laid down by the Act, disclosure of information has not been carried out
satisfactorily. There are certain obligations that should be carried out by the Public
Authorities[21]. Information is not provided to the applicant in their regional language. It
is to be noted that it is against the statutory spirit contained in Sec 6(1) of the Act. It
clearly states that Information should be provided in English or Hindi or in the official
language of the area where the application is being made. Critically if we analyses we
can say that it is against the spirit of the act to take fees for disclosing the information.
Right to Information is considered to be fundamental right and it is paradoxical to say
that a person has to pay for availing information. There are grievances that information
can be easily accessed through affluent classes. Same is not applicable in the case of
lower strata of middle class or students.
21. There were instances where applications are rejected without any logical reasons as
required by Sec 7(8) of the Act. Exemption clause [22] has misused in the name of secrecy
which is considered to be essential for national security, integrity. RTI Act is a central
legislation which means it has to be enforced uniformly throughout India. Central
Government and State Government have conferred with the Rule making power
simultaneously and independently. There is dichotomy created in the field of
rulemaking power.
22. As per Sec 20 of RTI Act, 2005 it bestows power upon the CIC[23] and SIC[24] have to
impose penalties[25] on erring officials indulging in unreasonable nondisclosure of
information. It is to be noted that such penalties do not have any deterrent effect on the
power wielding officials. There is also ample of chances that applicant can suffer from
potential harm in future as he may be seeking the information which is not pleasant for
his authorities superior to him. He may be subject to ill treatment later. After seeking
the information through the Act, there is no special safeguard protection. The
Advantage of special safeguard protection is that citizen can seek for the information
without fear.
23. On the basis of primary and secondary data collection, the author has made an
attempt to arrive at inferences. On the operation of the Right to Information Act there
has been a question mark regarding the disposal of complains within the scheduled
time. JUSTICE DELAYED IS JUSTICE DENIED. Within the stipulated time, it depicts
the slow rate of disposal of the complaints. The awareness among the people is
necessary to accelerate the effective implementation of the Act.
24. The pace of the success of Right to Information Act is reduced due to illiteracy,
poverty and socio-economic backwardness. Even though we know that the Right to
Information Act helps to collect information, it fails to take any action against the
corrupt and negligent officials. It is to be noted that under the Right to Information Act
there is no well-structured procedure to fix the allegation against the officials who
indulge in the activities of corruption. The effectiveness of Right to Information Act is in
question. To identify the level of corruption and negligence of the corrupt officials it is
not an easy task. The officials can easily hide the office files and notes. There is unethical
and vicious relationship among the corrupt officials, contacts and dishonest politicians.
It is not an easy task to break it. Frivolous demand of information with no specific
intention and wrong allegations result in killing the energy and time of the public
authorities to a great extent.
[2] Justice K.K Mathew , Supreme Court, State of UP v. Raj Narain AIR 1975 SC 865
[3] On 11th May 2005, Right to Information Bill, 2005 was passed by LokSabha and on 12th May 2005, It
was passed by RajyaSabha. On 15th June 2005 It received the assent of President of India. On 12th
October 2005, all the provisions came into force with effect.
[4]MazdoorKisan Shakti Sangathan, a collective of labourers and farmers was formed in Rajastan.
[5]Hamara paisa, hamarahisaab
[6] Hum janenge, Hum jiyenge
[7] S.P. Gupta v. Union of India, Supreme Court, 1982
[8] Dr. Manmohan Singh, Ex-Prime Minister, on 62nd Independence Day , addressing the Nation from the
ramparts of the Red Fort.
[9] Sec 41 of the Indian Penal Code, 1860
[10] United Nations General Assembly, resolution 59(1), 65th plenary meeting, 14th December 1946.
[11]Bennette Coleman v. Union of India, Supreme Court 1973
[12] State of UP v. Raj Narain, 1975
[13] Secretary, Ministry of I & B, Government of India v. Cricket Association of Bengal, 1995
[14]S.P.Gupta v. Union of India, 1982
[15] Peoples Union for civil liberties v. Union of India, 2004
[16] Thomas Emerson, Legal Foundation of Right to Know, Washington University Law Quarterly, 1976
,Pg: 2
[17]Avinash Sharma, Right to Information: A Constitutional Perspective, 8th Volume, Nyayadeep, Pg: 121
[18] Conway v. Rimmer, (1968) , AC 910.
[19] Ibid 13
[20]Essar Oil Ltd v. HaldarUtkarshaSamiti, AIR 2004 SC 1834

[21] Sec 4 of the RTI Act, 2005
[22] Sec 8 of the RTI Act, 2005
[23] Central Information Commission
[24] State Information Commission
[25] Minimum of Rs.250 and uptoRs. 25000
DISENTANGLING THE NUANCES AFFIXED TO DISABILITY
SUDIPTA ROY CH OUDHW R Y & A NWESHA ROY CHOU DHWRY

DEPARTME NT OF LAW, C ALCU TTA UNIVERSITY
CALCUTTA INSTITU TEOF ENGINE ERING A ND MA NAGE MENT
INTRODUCTION
Disability is a human rights issue! . . . Those of us who happen to have a disability are
fed up being treated by the society and our fellow citizens as if we did not exist or as if
we were aliens from outer space . . . If asked, most people, including politicians and
other decision makers, agree with us. The problem is that they do not realize the
consequences of this principle and they are not ready to take action accordingly.[1]
1. It is seen often that women, men and children with disabilities are amongst the
marginalized group in the society and far too often face discrimination in every aspect of
their lives. More than six hundred million people, or about 10% of the worlds
population, have some type of disability[2]. Around 80% of disabled persons live in
developing countries, where they experience material deprivation and social
exclusion[3].Needless to say, people with disabilities are often denied of their basic
fundamental rights and are subject to severe stigmatization in the society.
2. Education is both a human right in itself and an indispensable means of realizing

other human rights. It plays an indispensable role in empowering women, safeguarding
children from exploitative and hazardous labor and sexual exploitation, promoting
human rights and democracy, protecting the environment, and controlling population
growth. It can be safely concluded that education is one of the best financial investments
a state can make. But the importance of education is not just practical: a well-educated,
enlightened and active mind, able to wander freely and widely, are one of the joys and
rewards of human existence.[4]
People with disabilities are often deprived of their right to education. More than often,
they suffer victimization at educational institutions due to various reasons. However,
where in the past such occurrence was considered consequential and even natural owing
to their mental or physical or sensory detriment, the situation has undergone colossal
changes over the years. Due to widespread legislations and extensive efforts by the
international community, several measures have been adopted to ensure their right to
education.
INTERNATIONAL LEGAL DEVELOPMENT
3. Despite being one of the largest minority groups in the world, encompassing 600
million persons (of which two out of three live in developing countries), and disabled
people have been rather ignored during the first three decades of the United Nations'
existence[5]. The drafters of the International Bill of Human Rights did not include
disabled persons as a distinct group vulnerable to human rights violations [6]. The
equality clauses of any of the three instruments of this Bill, the Universal Declaration of
Human Rights (1948) (hereinafter UDHR), the International Covenant on Civil and
Political Rights (1966) (hereinafter ICCPR), and the International Covenant on
Economic, Social and Cultural Rights (1966) (hereinafter ICESCR), do not mention
disability as a protected category. Disability has only been addressed in connection to
social security and preventive health policy.
However, during the last few decades, the international legal community has witnessed
a significant change in the legislation pertaining to disability, especially in relation to
education. Such shift can be attributed to the changing social viewpoint towards
disabled people and the gradual incorporation of the concept of inclusive education.
4. The first international instrument which guaranteed education for all which includes
disabled persons was the Universal Declaration of Human Rights, 1948. Recognizing the
right to education, Article 26 states that education should be free at least in elementary
and fundamental stages, and further goes on to make technical and professional
education generally available and higher education accessible to all[7]. However the right
to education was not applied generally.
5. The principles enshrined in the UDHR, 1948 were implemented in the International
Covenant for Economic, Social and Cultural Rights, 1966(ICESR). Article 13 of ICESR
reiterates the doctrines set out in the UDHR. It urges state parties to recognize that
primary education and higher education free and accessible to all including disabled
persons [8]. These provisions however are generalized. To address the issue of education
for disabled, specific legislation containing an appropriate scheme was required.
6. The UNESCO Convention against Discrimination in Education, 1960 was the first
international legally binding document which laid down the core elements of the right to
education. The Convention prohibits discrimination in the field of education and
expresses the principle of equality for educational opportunities. Article 1 specifies that
depriving any person or group of persons of access to education of any type or at any
level falls within the meaning of discrimination as defined in this section [9].
Education has been defined as all types and levels of education, and includes access
to education, the standard and quality of education, and the conditions under which it
is given[10]. Although the definition of discrimination does not explicitly mention
discrimination based on disability, the list is non-exhaustive and the Convention
reflects the mandate of the UNESCO to ensure full and equal opportunities for all and
aims at guaranteeing the right to education for all including marginalized and
vulnerable groups including people with disabilities.[11]
7. Moreover, Article 4 binds state parties to formulate, develop and apply a national
policy which by methods appropriate to the circumstances and to national usage, will
tend to promote equality of opportunity and of treatment in the matter of
education[12] The member states are further required to make primary education free
and compulsory and higher education and secondary education accessible to all. This is
in conformity with the Universal Declaration of Human Rights and several other
international legislations in this regard[13]. These provisions pave the way for expansion
of right to education in all national levels, by encouraging States Parties to adopt such
an approach as to make their respective education systems more inclusive.
8. In this context, it is notable to mention the extensive efforts undertaken by UNESCO

to secure the right to education for all without discrimination. Article 25 of the UNESCO
Convention on Technical and Vocational Education (1989) explicitly states that
contracting States shall pay attention to special needs of handicapped and other
disadvantaged groups and take appropriate measures to enable these groups to
benefit from technical and vocational education. A plethora of recommendations such
as Recommendation against Discrimination in Education, 1960, Recommendation for
International Understanding, Cooperation and Peace and Education relating to Human
Rights and Fundamental Freedoms,1974, amongst others have been undertaken by
UNESCO in this sphere in furtherance of securing equality and non-discrimination for
the disabled.
9. Specific dimension of the rights to education are covered by the Convention on

Elimination of All Forms of Discrimination against Women, 1979. This Convention is
particularly significant because women face more discrimination than men in this
regard. The Preamble to the Covenant states that discrimination against women violates
the principles of equality of rights and respect for human dignity[14]. Article 10 of the
Convention which relates to education ,states that States Parties shall take all
appropriate measures to eliminate discrimination against women in order to ensure to
them equal rights with men in the field of education and in particular to ensure, on a
basis of equality of men and women [15]. The rights provided have been made obligatory
upon member states via Article 2 (a) which provides that States Parties undertake " to
embody the principle of equality of men and women in their national constitutions or
other appropriate legislation if not yet incorporated therein and to ensure, through
law and other appropriate means, the practical realization of this principle." Article 2
(b) states that States Parties undertake "to adopt appropriate legislative and other
measures, including sanctions where appropriate, prohibiting all discrimination
against women[16]."
The right to education of a disabled person is also emphasized in Convention on

Protection of All Migrant Workers and Members of their Families, 1990. Article 12 states
that State parties undertake to have respect for parents.to ensure religious and
moral education of their children in conformity of their own convictions. Article 30 of
the Convention provides, each child of a migrant worker shall have the basic right of
access to education. Despite no direct reference to disabled persons, their rights also
guaranteed through this legislation.
The Convention on the Rights of the Child was the first instrument to incorporate the
complete range of international human rights including civil, cultural, economic,
political and social rights as well as aspects of humanitarian law. Article 2 consists of a
non-discrimination clause which applies to all children, whatever their race, religion or
abilities; where the children live, what their parents do, whether they are boys or girls or
whether they have any disabilities, this Convention protects their rights regardless[17]. As
per Article 4, Governments ratifying the Convention has to assess their social services,
legal, healthcare and educational systems to make them child friendly and ensure the
protection of the rights of the child[18]. Article 23 of the Convention explicitly states that
children who have any kind of disability have right to special care and support, as well as
rights in convention. Article 28 and 29 reiterating the principles of the UDHR and
ICESR, ensures the right to education for all children, making primary education free
for all children.
10. The right of persons with disabilities in a new Convention on the Rights of Persons
with Disabilities (CRPD) and its Optional Protocol was adopted by the General
Assembly in December 2006.As of October 15, 2008, 136 countries have signed the
Convention and 41 have ratified it. While governments negotiated the final text,
participants of civil society notably of organizations of persons with disabilities and
their families were key partners throughout the process, and the final text marks a
strong consensus among all stakeholders.[19]
11. The purpose of the Convention as stated in Article 1 is promote, protect and ensure
the full and equal enjoyment of all human rights and fundamental freedoms by all
persons with disabilities, and to promote respect for their inherent dignity[20]. The
Convention on the Rights of Disabled Persons, 2006 is the first legally binding
document to refer to the concept of inclusive education. Article 24 of the CRPD states
that state parties recognize the rights of persons with disabilities and with a view to
realizing without discrimination and on the basis of equal opportunity state parties shall
ensure a system of inclusive education at all levels including primary schools, primary
education, tertiary education, vocational training and lifelong learning, extracurricular
and social activities.[21] Article 24, paragraph 1 reiterates the aims of the education in
line with the UDHR, the ICESR and the Convention on the Rights of Child, that
education must be directed to full development of human potential, sense of dignity and
self-worth, strengthening respect for human rights and human diversity. [22] The right to
education is a matter of access as well as content and should be directed to a wide range
of values including understanding and tolerance[23].
International instruments, such as declarations, resolutions, principles, guidelines and
rules, are though not legally binding, they express generally-accepted principles and
represent a moral and political commitment by States and can also be used as guidelines
in enacting legislation and formulating policies concerning persons with disabilities.
12. General policy instruments, such as the resultant documents of world summits and
conferences, are applicable to persons with disabilities. These instruments include, for
example, the Copenhagen Declaration and Programme of Action adopted at the World
Summit for Social Development (6-12 March 1995), and the Millennium Declaration
and the Millennium Development Goals adopted at the United Nations Millennium
Summit in September 2000[24]. These also include General Assembly designations of the
International Year of the Disabled in 1981, 31 and the International Decade of disabled
Persons from 1982-1991.[25] The United Nations has also passed resolutions such as the
Declaration on the Rights of Mentally Retarded Persons[26], and the Declaration on the
Rights of Disabled Persons[27]. Additionally, the General Assembly adopted a World
Programme of Action Concerning Disabled Persons (WPA) to encourage the
development of national programs directed at achieving equality for people with
disabilities[28]. Most significant among the soft laws are the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities (Standard Rules) [29] The
Special Rapporteur on the rights of persons with disabilities was created to monitor the
situation regarding implementation[30].
13. The Salamanca Statement on Principles, Policy and Practice in Special Needs
Education[31] is one of the most comprehensive policies in this regard. Adopted in the
World Conference for Special Needs Education on June 1994, it begins with a
commitment for education for all[32]. It calls upon State parties to give highest policy
and budgetary priority for encouraging an inclusive system for all children[33]. The
Dakar Framework for Action on Education for All of 2000 stressed that education
systems must be inclusive and respond flexibly to the circumstances and needs of all
learners.[34] The United Nations Educational, Scientific and Cultural Organization
(UNESCO) Guidelines for Inclusion, 2005 emphasize that at the core of inclusive
education is the human right to education.[35] Sustainable Development Goal 4 also
focuses on inclusive education for all[36].
IMPLEMENTATION OF INTERNATIONAL COVENANTS
14. The previous UN Special Rapporteur on Disabilities commissioned a country-level

survey to find out how well states were doing in implementing their responsibilities
under the 1993 Standard Rules on the Equalization of Opportunities for Persons with
Disabilities.[37]
15. 573 questionnaires were distributed to 191 UN member states, including 191 to 191
government bodies and 382 to two DPOs in each country. Some of the information
obtained has been alarming with regard to the prospects for disabled people, especially
in the area of education for children. Nearly 30 countries reported that they had taken
no measures to enable children to receive education in integrated settings; this has now
been reduced to 13. It is important to remember that although a 60 per cent return of
the questionnaire is impressive (providing information about 114 countries on 402
measures), there were 77 countries from which no information could be obtained.
16. More than half the 114 countries that responded said they had adopted one or more
measures to ensure integration in education for disabled people. The highest responses
were with regard to teacher training, with 84 countries responding -positively; the
lowest was with regard to adopting legislation (63 countries). On implementing
programmes to ensure integrated education, 79 countries responded positively.
17. The 1993 UN Standard Rules on Equalization were only advisory. The UN
Convention on Rights of Disabled Persons, 2006 is however binding under international
law unless ratifying country adds a reservation.
18. In implementing the Convention, states parties need to develop structures to involve
disabled people and their organizations. Where these do not exist, states will need to
support capacity building, such as training-the-trainer courses and disability equality
training (DET). DET is based on the principles of self--advocacy and social model
analysis[38].
19. In the last 63 years many fine sentiments have emanated from inter--national
reports, conferences, declarations and treaties. However, the continued ignoring of
disabled children and young peoples right to education is a continuing mark of shame
against the governments and international agencies of our world. At the UN, the
Convention on the Rights of Persons with Disabilities took shape with strong
involvement from DPOs[39]. The involvement of DPOs in a more than tokenistic manner
is not occurring in many countries and this is hindering effective implementation[40].
20. Adequate domestic laws are a perquisite to states to meet their obligation of
providing education generally and inclusive education specifically[41].Several measures
have been taken by member countries throughout the decades to adopt the international
legislations undertaken in these sphere into their national laws, in order to safeguard
and protect the interests of the disabled via their national legislations. The CRPDs
policies of inclusive education, specifically the provisions of Article 24, have been
incorporated into the national legislation by several countries. Countries have developed
plans and strategies to keep in line with its objectives. For instance, the Russian
Federation signed the CRPD on September 24, 2008, and has made a commitment to
ratify [42]. In preparing for ratification, the Government has called on government
agencies to prepare for the countrys ratification with the Ministry of Health and Social
Development (MHSD) being the leading agency [43]. The department for people with
disabilities within MHSD was established with a key objective to promote Russias
preparation for ratification of the CRPD and the federal Programme, Accessible
Environments, has also been drafted, but has not been initiated to-date as it is still
being reviewed for approval by the Government[44].
21. The right to education for the disabled has been recognized under the umbrella of a
general constitutional and other legal provisions present in a country. But more than
often this is not sufficient to guarantee the rights of disabled. Justifiability of right to
education rests on the fact that there are effective remedies in the legal provisions.
France reported that primary school education has been made free and fees for
compulsory school events have been done away with.[45] Some countries have reported
on other institutions where complaints can be filed for discrimination. For example,
Ethiopia, Mauritius, Sweden, Poland, Norway have reported on offices of Ombudsman
which deal with discrimination. In Sweden, for example, people who have been subject
to discrimination can file a complaint to the School Inspectorate and a Special Child and
School Student Representative who investigate the complaint and, on the behalf of the
pupil, turn to court and call for compensation from the principal organizer[46].
22. The plans and strategies reported to be undertaken by member countries to achieve
the objectives reflects the commitment of international community towards this issue.
In Cambodia, The Policy and Master Plan on Education of Children with Disabilities
were approved in 2008 and 2009 respectively, with the main goal to ensure access to
equitable and quality inclusive education; the Education Strategic Plan (ESP) 2009-
2013 also aims to improve quality of education by training teachers and upgrading
teaching methodologies and improving curriculum; ESP and Early Childhood Care and
Development Policy (approved in 2010) in Cambodia prioritize preschool services for
children with disabilities as well.[47] The Government of Oman signed the Convention on
the Rights of Persons with Disabilities (CRPD) in March 2008, and ratified it a year later
in January 2009[48]. After Oman signed the Convention, the Welfare and Care of
Persons with Disability Law was issued in April 2008 (Royal Decree No. 63/2008) [49].
China and India has both signed the Convention Rights of Disabled Person and have
implemented such measures to adopt it into their national legislation. Both countries
have made significant progress on domestic laws on disability and education. [50]
OBSTACLES TO SUCCESS
23. Despite the best efforts by the international community to address the problems
faced by disabled persons, and despite the considerable success achieved over the years,
there still exists a huge gap between the policies and their implementation. Several
member states have adopted the policy of inclusive education in their national school
systems. For instance, Amnesty International has noted that it is the duty of the States
to ensure that children are not deprived of their right to education due to financial
barriers. Children with disabilities should not have to pay for their own supports or
accommodations in order to participate in mainstream classrooms[51]. However, reports
have shown that some States require children with disabilities attending inclusive
schools to pay for their own classroom assistants and sign language interpreters as a
condition of staying in mainstream classes, as well as other fees which children without
disabilities do not incur[52].
24. Amnesty International has noted the existence of policies that allow schools to
unilaterally opt-out of educating students with disabilities in mainstream classrooms on
the grounds that attempts have been made to include them without success[53]. Such
opt-out mechanisms are in principle inconsistent with the no-rejection clause enshrined
in Article 24(2)(a) of the Convention, which specifies that States Parties must ensure
that students with disabilities are not rejected from general education on the basis of
disability[54]. Article 2 of the Convention of Rights of Disabled Persons defines
reasonable accommodation as modification and adjustments not imposing a
disproportionate or undue burden. Paragraph 18 of General Comment No. 4 on Article
24 of Convention of Rights of Disabled Persons, 2006, however, interprets article 24 as
prohibiting any legislative provisions that place limits on the inclusion of persons with
disabilities by alleging a disproportionate and undue burden to evade the obligation
to provide reasonable accommodation. In the absence of further explanation this
language is potentially confusing and unclear in light of the definition of reasonable
accommodation, which provides that accommodation may be denied if it would impose

an undue burden on the duty bearer[55].
The absence of consistent definitions of what constitutes an undue burden in
international law[56], a term found in a large body of doctrine and jurisprudence across
numerous jurisdictions.
25. In Canada, a 2013 investigation revealed the use of restraint and seclusion in
schools, reporting that children with disabilities were being kept in small spaces
including closets and stairwellsfor up to three hours when judged to be disruptive [57].
Nearly half of all students surveyed as part of the investigation reported that physical
injury or obvious signs of pain occurred during restraint, and more than three quarters
reported emotional trauma[58]. Use of seclusion, restraint and aversive intention
undermines efforts enshrined in Article 24 of the Convention on Rights of Disabled
Persons, 2006.
26. Furthermore no appropriate dispute resolution scheme necessary for solving

disputes in accommodation issues exists in several places which serve as a roadblock to
proper implementation of policy.[59]
27. Perhaps the most common obstacle which prevents proper implementation of the
policies is the negative attitude of society leads to discrimination of disabled individuals.
This can occur even when trying to help disabled individuals. For instance, children with
disabilities are often categorized according to their health condition to determine their
eligibility for special education and other types of support services [60]. For example, a
diagnosis of dyslexia, blindness, or deafness can facilitate access to technological and
communication support and specialized teaching[61]. But labeling individuals can have
negative effects such as peer rejection; stigmatization and children can even be
subjected to violence and bullying. In addition to addressing the existing gaps, the
international community should engage in a comprehensive policy which would aim at
sensitization and education of society at large towards disabled individuals. This would
pave the way for further progress in this sphere in the near future.
CONCLUSION
28. With the shift to a social model of disability, significant progress has been made,
through enactment of a plethora of legislation to guarantee the rights of the disabled
persons. The member countries and NGOs have also undertaken commendable efforts
in pursuance of this goal. However, the road is one fraught with difficulties. Although
national legislation of several member states protects the right to education of disabled,
there exists a gap between legislation and implementation. The reasons vary, from
insufficient funding to a lackadaisical attitude amongst the authorities responsible. In
developing countries, these problems usually persist more. Moreover, a disabled female
faces twice as much as discrimination as her counterpart, and the current existing laws,
though noble in their intention, fall considerably short when it comes to
implementation.
29. Throughout the last few decades, legal sanction has played a huge role in alleviating
the conditions of disabled individuals. The commitment of the international community
has been reflected in such measures and policies. However, discrimination stemming
from the negative attitude harbored by the society at large has impeded further growth
in this sphere. Large scale sensitization is therefore required to keep in par with the
noble intention reflected in the legislations. Therefore it remains to be seen, how
societal attitudes evolve to conform to the sanction of law for the disabled.
We should live by the words, there is no greater disability in society than the inability
to see a person as more.[62]
[1]Bengt Lindquist, Special Rapporteur on Disability of the United Nations Commission for Social
Development, Remarks at the 19th Congress of Rehabilitation International, Rio De Janiero (Aug. 25-30,
2000), in U.N. High Commissioner for Human Rights, Human Rights and Disability: The Current Use
and Future Potentialof United Nations Human Rights Instruments in the Context of Disability at 13,
U.N. Doc. HR/PUB/02/1 (2002) (prepared by Gerard Quinn and TheresiaDegener) [hereinafter Human
Rights and Disability]
[2] Gerard Quinn et al., Human Rights and Disability 1 (2002), available at
http://www.nhri.net/pdf/disability.pdf
[3]SeeThe Second Annual Report on the Implementation of USAID Disability Policy 1-2 (2000),
http://pdf.dec.org/pdf_docs/PDABT610.pdf. For a sense of how the varying levels of disability are
reported from country to country, see Statistics Div., U.N. Dept of Econs. & Soc. Affairs, Human
Functioning and Disability, available at http://unstats.un.org/unsd/
demographics/concerns/disability/default.htm (last visited June. 23, 2017)
[4] CESR General Comment No. 13, Right to Education, Article 13, (Contained in Document
E/C.12/1999/10)
[5]TheresiaDegener, International Disability Law - A New Legal Subject on the Rise: The Interregional
Experts' Meeting in Hong Kong, December 13-17, 1999, 18 Berkeley J. Int'l Law. 180 (2000). Available at
:http://scholarship.law.berkeley.edu/bjil/vol18/iss1/5
[6]ibid
[7] Universal Declaration of Human Rights, 1948

[8] International Covenant for Economic, Social and Cultural Rights,1966
[9] UNESCO Covenant on Discrimination in Education, 1960
[10]ibid
[11] Monitoring the Implementation of Convention and Recommendation against Discrimination in
Education, (8th Consultation), The Right to Education for Persons with Disabilities, published by
UNESCO,2015
[12] UNESCO Covenant on Discrimination in Education, 1960
[13]ibid
[14] Convention on Elimination of All Forms of Discrimination against Women, 1979

[15]ibid
[16]ibid
[17] The Convention on the Rights of the Child, Guiding principles: general requirements for all rights,
see more at https://www.unicef.org/crc/files/Guiding_Principles.pdf. Accessed on June 23 2017
[18] The Convention on the Rights of the Child, Guiding Principles: Survival and Development rights: the
basic right to life, survival and development of ones full potential, See more at
https://www.unicef.org/crc/files/Survival_Development.pdf. Accessed on June 23 2017
[19] VOLUNTARY CONTRIBUTIONS BY SPEAKERS ON INCLUSIVE EDUCATION, working
document, Geneva, 19 November 2008
[20] Convention On the Rights of Persons With Disabilities,2006
[21]ibid
[22]ibid
[23] Committee on Rights of Child, General Comment No. 1, Aims of Education


[24]Overview of International Legal Framework for Disability Legislation, See at
http://www.un.org/esa/socdev/enable/disovlf.htm; Accessed on June 22,2017
[25] Implementation of the World Programme of Action Concerning Disabled Persons, G.A. Res 37/53, at
186-87, para. 11, U.N. GAOR, 37th Sess., Supp. No. 53, U.N. Doc. A/RES/37/53 (Dec. 3, 1982).
[26] Declaration on the Rights of Mentally Retarded Persons, G.A. Res. 2856 (XXVI), at 93, U.N.
GAOR, Supp. No. 29, U.N. Doc. A/8429 (Dec. 20, 1971).
[27] Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), at 88, U.N. GAOR,
Supp. No. 34, U.N. Doc. A/10034 (Dec. 9, 1975).
[28] World Programme of Action Concerning Disabled Persons, G.A. Res. 37/52, at 185, U.N.
GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/RES/37/52 (Dec. 3, 1982) [hereinafter World
Programme]
[29] Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res.48/96, at
202, U.N. GAOR, 48th Sess, Supp. No. 49, U.N. Doc. A/RES/48/96 (Dec. 20, 1993)[hereinafter Standard
Rules].
[30]Ms Catalina Devendas Aguilar, Special Rapporteur on the rights of persons with disabilities. See more
at http://www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/CatalinaDevandas.aspx. Accessed
on June 24,2017
[31] The Salamanca Statement and Framework for Action on Special Needs Education, adopted on World
Conference on Special Needs Education: Access and Quality, Salamanca, Spain 7-10 June, 1994,
UNESCO. See more at http://www.unesco.org/education/pdf/SALAMA_E.PDF. Accessed on June
23,2017
[32]ibid
[33]ibid
[34] Available from www.unesco.org/new/en/education/themes/leading-the-international-

agenda/education-for-all/ (see paragraph 33)
[35]UNESCO, Guidelines for Inclusion: Ensuring access to Education for All, 2005 (Paris, 2005), p. 12.
[36] See more at http://www.un.org/sustainabledevelopment/education/. Accessed on June 22,2017
[37] http://www.un.org/esa/socdev/enable/rapporteur.htm. Accessed on June 24,2017
[38] Implementing Inclusive Education, Richard Rieser
[39]ibid
[40]ibid
[41] Munoz Report, Supra Note, 41 at 11


[42] UNICEF, NYHQ/OED/2010, Subject: The UN High Commissioner on Human Rights seeking in puts
on study of international cooperation in support of national efforts for realization of purpose and
objectives of Convention on Rights of Disabled Persons, June 22,2017
[43]ibid
[44]ibid
[45]ibid
[46]ibid
[47] UNICEF, NYHQ/OED/2010, and Subject: The UN High Commissioner on Human Rights seeking in
puts on study of international cooperation in support of national efforts for realization of purpose and
objectives of Convention on Rights of Disabled Persons, June 22,2017
[48]ibid
[49]ibid
[50]Regulations, supra note 3; LPDP, supra note 3; PDA, supra note 3
[51]As OHCHR has stated, primary education for all implies that accessibility measures should also be
free of charge and that secondary and higher levels of education must be equally accessible to all by the
progressive introduction of free education. Office of the United Nations High Commissioner for Human
Rights, Thematic Study on the Rights of Persons with Disabilities to Education: Report of the United
Nations Office of the High Commissioner for Human Rights (13 December 2013) A/HRC/25/29 at paras
11, 37.
[52] See e.g. Human Rights Watch, Complicit in Exclusion: South Africas Failure to Guarantee an
Inclusive Education for Children with Disabilities (2015) online:
<https://www.hrw.org/sites/default/files/report_pdf/southafrica0815_4up.pdf> at 2; Maruah
Singapore, Contribution to the Study on the Right to Education of Persons with Disabilities (2013)
online:
<http://www.ohchr.org/Documents/Issues/Disability/StudyEducation/NGOs/Singapore%20MARUAH.
pdf> at 3.
[53] In Italy, for example, researchers documented the use of special rooms for children who were
identified as unable to benefit from ordinary teaching in mainstream classrooms, where support teachers
provide services in segregated settings. See SimonaDAlessio, Integrazionescolastica and the
Development of Inclusion in Italy: Does Space Matter? (2012) 16:5-6 International Journal of Inclusive
Education 519 at 528; Michael Giangreco et al, Demographic and Personnel Service Delivery Data
(2012) 15:1 Life Span and Disability 97 at 101; Arlene Kanter et al, The Right to Inclusive Education
Under International Law: Following Italy's Lead (2014) 17:1 21 at 28

[54] OHCHR has stated that the no-rejection clause is applicable on individual basis, and is not subjected
to reasonableness tests. Facundo Chavez Penillas, Presentation of the Human Rights and Disability
Advisor, Office of the High Commissioner for Human Rights: Day of General Discussion on the Right to
Education of Persons with Disabilities (15 April 2015) at 2.
[55] UN Committee on Rights of Persons With Disabilities, Observations on Draft General Comment No.4
On Article 24 of UN Convention on the Rights of Persons with Disabilities, published by Amnesty
International, 2016
[56] United Nations Ad Hoc Committee on a Comprehensive and Integral International Convention on the
Protection and Promotion of the Rights and Dignity of Persons with Disabilities, The Concept of
Reasonable Accommodation in Selected National Disability Legislation: Background conference
document prepared by the Department of Economic and Social Affairs (7 December 2005) UN Doc
A/AC.265/2006/CRP.1.
[57] Inclusion BC, Stop Hurting Kids: Restraint and Seclusion in BC Schools: Survey Results and
Recommendations (November 2013) online:
<http://www.inclusionbc.org/sites/default/files/StopHurtingKids-Report.pdf>.
[58]Ibid at 5, 7
[59] See at http://www.ohrc.on.ca/en/main-barriers-education-students-disabilities-fact-sheet. Accessed
on June 24,2017
[60] World Report on Disability, published by World Health Organization, 2011
[61]ibid
[62]Robert M. Hensel ,Mini Biography, ,2009

TRADING MOTHERHOOD: ETHICAL AND LEGAL PERSPECTIVES OF

SURROGACY
SIMI MARIYA TH OMA S & RASH IDA KHATOON

LUCKNOW U NIVERSITY
INTRODUCTION
1. The commercial world reached its peak when following this common phrase-Money
can buy you anything- and started trading in motherhood. Surrogacy i.e., using womb
of one woman to let another cherish motherhood, is the most commonly used Assisted
Reproductive Technology (ART) today. However, owing to the ethical, social, moral,
religious and legal issues attached to it, surrogacy has always been a matter of debate
and discussion. Questions like parentage, the nationality of the child and rights of the
surrogate mother have posed serious concerns before legal luminaries and legislators.
Need for proper regulation of practice is further enhanced owing to the interest-
involvement of not only the surrogate mother and intended parents but also of the
unborn, innocent child whose parentage is being commoditized through it. At the
same time, however, it is hard to ignore the positive phase of surrogacy which has been
instrumental in reversing the natures dictate by enabling even barrens to experience
motherhood.
2. Countries across the globe deal and regulate surrogacy in their own way. Recently,
Indian government has also proposed Surrogacy (Regulation) Bill, 2016 regulating the
practice in India.
This paper makes a modest attempt to highlight certain major ethical and legal concerns
attached to surrogacy. Along with this, it makes a comparative analysis of how
international community deals with it with a special reference to the recent Surrogacy
code in the Indian context.
"The System of nature, of which human being is a part, tends to be self-

balancing, self-adjusting, self-cleansing. Not so with technology" ---by E.F.
Schumacher
Once upon a time, the Planet Green was actually Green, filled with life and happiness.
Nature then thought-why shouldnt I create a human being and endow him/her with
power of thinking and innovation, who could invest his/her endowments for the
beautification of the Natures Garden and enhance its greenery and hence, happiness.
But, worryingly, the way humans used their natural talents made even nature to re-
think on its decision. Humans used their creativity for reverting the natural
phenomena itself..and results we all see in the form of Global Warming and Green
House Effect. However, the effect is not peculiar and limited only to environmental
jurisprudence; it applies equally and in the similar manner to all the other human
activities.
3. Human being, the highest of all creatures on the earth who is blessed with
innumerable gifts of innovation ,newness and creativity for which the history of man is
witness and today we enjoy the fruit of mans innovation. Presently, the innovation and
technology of man has gone up to that level that he is able to produce another man with
the help of cloning, make barrens enjoy motherhood through different Assisted
Reproductive Technologies (ARTs) is one of the latest innovations of man.
4. The word surrogate has its origin from Latin surrogatus, meaning a substitute, that
is,a person appointed to act in the place of another. Thus, a surrogate mother is a
woman who bears the child on behalf of another woman. According to Blacks Law
Dictionary, Surrogacy means the process of carrying and delivering a child for another
person. The New Encyclopedia Britannica defines surrogate motherhood as the
practice in which a woman bears a child for a couple unable to produce children in the
usual way. At another place, surrogacy is defined as a practice whereby one woman
carries a child for another with the intention that the child should be handed over after
birth.[1] This newly developed ART has enabled even a woman without a functional
uterus to be a mother. In this procedure of ART (VIF), a fertilized egg is placed into the
uterus of a surrogate (gestational carrier), with the intention of handing over such child
to the intending parent after the birth.
5. The fertilization of the surrogate may take place in a number of ways, each of which
has implications for the genetic relationship of the resulting child with the surrogate and
the future parents. There are two main types of surrogacy: gestational surrogacy and
traditional surrogacy.[2]
TRADITIONAL SURROGAC Y
6. Traditional surrogacy (also known as partial, genetic, or straight surrogacy) involves
natural or artificial insemination of a surrogate. If the intended father's sperm is used in
the insemination, then the resulting child is genetically related to the intended father
and genetically related to the surrogate. If donor sperm is used, the resulting child is not
genetically related to either intended parent(s) but is genetically related to the
surrogate.
GESTATIONAL SURROGAC Y
7. Gestational surrogacy takes place when anembryo created byin vitro
fertilization(IVF) technology is implanted in a surrogate, sometimes called a gestational
carrier. Gestational surrogacy may take a number of forms, but in each form the
resulting child is genetically unrelated to the surrogate:
The embryo is created using the intended father's sperm and the intended
mother's eggs. The resulting child is genetically related to both intended parents.
The embryo is created using the intended father's sperm and a donor egg where
the donor is not the surrogate. The resulting child is genetically related to the
intended father.
The embryo is created using the intended mother's egg and donor sperm. The
resulting child is genetically related to the intended mother.
A donor embryo is implanted in a surrogate. Such an embryo may be available
when others undergoing IVF have embryos left over, which they donate to others.
The resulting child is genetically unrelated to the intended parent(s).
8. If we go for tracing back the origin of the process of surrogacy, it goes back to many
hundreds or thousands of years. The reference to the practice is found in the Holy Bible,
when Abraham, due to the infertility of Sarrah, took assistance of Hagar, her maid, who
conceived a son for them.[3] Instances are there indicating that the practice was
prevalent in Ancient India too.[4]Several other cultures too had concept of Surrogacy
integrated in their system.[5] However, surrogacy took centuries to take the form in
which it is viewed presently. The first and official surrogacy agreement was enacted in
mid -1970s with the child who was referred as Baby M.[6]
In the current scenario, however, surrogacy has become a business more than a noble
task of enabling childless parent to have their own child. This drastic change in the very
nature and purpose of surrogacy was due to emergence and rapid expansion of the
notion of commercialization. The notion prompted the concept that everything in the
world can be commoditized and profit can be made from it ;but mankind ,crossed all the
limits, when following the notion blindly, they went to the extent of commoditizing the
womb of a lady and started trading in motherhood.[7] Sarcastically, the terms like
medical tourism and fertility industry are being used to characterize this immoral
trade.[8]
9. Speaking specifically in the Indian context, it has become one of the prime
destinations [9] for foreigners wanting to hire surrogate mothers, owing to the low-cost
technology [10], skilled doctors, scant bureaucracy and a plentiful supply of surrogates.
When India legalized commercial surrogacy for the first time in 2002, it opened up the
wombs of hundreds of poor women for money and soon a surrogacy industry
flourished.[11] A U.N. based study in July 2012 estimated the surrogacy business at more
than $400 million a year, with fertility clinics across India.[12] There are NGOs like
Akanksha Infertility Clinic of Gujarat run by Dr. Nayana Patel and others who are
promoting this surrogacy business saying,These woman are doing a job. Its a physical
job; they are paid for that job. These women know there is no gain without pain. The
situation has worsened to such an extent that the Indian women, educated and
uneducated both, are themselves offering their womb on rent, not for the sake of
altruism, rather, surprisingly and worrying, for earning money out of it. They justify the
practice saying-I can't earn this much money in a regular job.If I was doing a regular
job, this is as much money as I could earn in maybe three years. I'm educated and I
know what this involves, but I need this money.It has helped me build a house and pay
for the future of my two sons. I plan to do this again and again in future to earn as much
as I can for my family."[13]
10. Helping a married couple with infertility to have a child is not evil in itself. However,
it involves many legal, moral and ethical issues that cannot be overlooked. These issues
as highlighted in the cases of Baby M[14], Jaycee B v. Superior Court[15], Baby Manji
case[16], Jan Balaz v. Anand Municipality [17]etc poses certain very serious challenges
before society, requiring it to ponder over and resolve it immediately, through
instruments like law and social awareness. A brief summary of those moral, ethical,
social, psychological and legal concerns is given below-:
MORAL/ETHICAL CONCER NS-

a. The very social identity of the child becomes questionable as to who should be
regarded as the true mother of the child, given the strong emotional ties of the
one as well as the mothers long dependency for protection and nourishment and
the original ovum and genetic endowment of the other. Must one say that
biologically one is the mother and emotionally the other is the mother?
b. When the surrogate mother carries foetus for another couple, she literally leases
or lends her womb as if it is merely a commodity, which itself is immoral.
c. It is unnatural as it doesnt involve the bound and intimate love of parents in
giving birth to a child.
d. It also derogates the sanctity of marriage.
e. Payment made to the surrogate mother seems to be the price of the child or pains
and hardships she face during the nine months of her pregnancy, which on the
very face is unethical.
f. One of the most crucial periods of life of the child (while in womb) is spent with a
lady who is simply working for money which will definitely have a far-reaching
effect on later life.[18]
g. Surrogate tries to avoid building a deep love and affection with the child as she
intends to give away the baby soon after delivery.
h. Traditional Surrogacy appears similar to the tabooed practice of prostitution or
adultery.
PSYCHOLOGICAL EFFEC TS
a. Surrogate mother is experiencing motherhood, one of the most precious gifts of
God, at the same time knowing that she is doing simply for the sake of money.
b. The child will be undergoing a traumatic condition from the very birth owing to
complexity of his/her birth process and situation gets worsened in case he/she
doesnt get natural love and affection from his/her either parent, biological or
genetic.
LEGAL ISSUES
Parentage of that child: It has been a matter of legal debate for a long time whether
the surrogate mother should be treated as the parent of the child or the donor or the
intending couple.[19][20] Practices of countries in this regard differ to wider
extent.[21]While in India, South Africa, Greece etc, intending couple is considered as
parent; in UK, Netherlands etc, surrogate mother is considered as the parent of the
child. Later on, the intended parent(s) has (have) to undergo through the process of
adoption. Russia and U.S.A. have a little bit different practice. In Russia, parent ship is
given to the surrogate mother- if she has provided her egg otherwise to the intended
parent(s). U.S.A. follows Best Interest Doctrine as propounded by the New Jersey
Court in the celebrated case of Baby M.[22]
Citizenship issue: This has been another major challenge before the legal
community.[23] Several countries deny visas to children born of surrogacy because they
do not recognize surrogacy as an above-board means of parenthood. The matter came
before Indian Supreme Court in the very famous case of German couple-JAN BALAZ
AND SUSANE LOHLE[24] who wanted their twins born of a Gujarat woman to be given
Indian citizenship so that they could get visas to travel Germany, which doesnt
recognize surrogacy, as a means to parenthood. On SCs intervention, the baby was
given Indian Citizenship with the German parents having to go through an adoption
process.
In the case of divorce: Another major issue concerning surrogacy comes into picture
in case commissioning couples goes for divorce during the pregnancy of the surrogate
mother. Instances have been there where after getting divorced, the couple refuses to
accept the child, especially the commissioning mother who is having neither biological
nor genetic connection with the child. Baby Manji case [25] became leading to this issue,
in which a Japanese doctor couple commissioned a surrogacy in 2008, but was divorced
by the time the baby was born and hence refused to accept the baby.
a. What if intending parents no more wishes to have a child? : Problem
arises when genetic parents wishes the pregnancy to be discontinued and tries to
force the host mother to undergo abortion. Similar problem comes when the
host mother were to become disenchanted with pregnancy and decide an
abortion.
b. How far do they get the right to control the lifestyle of surrogate
mother? : Naturally, the commissioning parents will be interested in the good
health of their baby which might not be the case with the surrogate mother who is
bearing the child merely for money. In this context, question arises that up to
what extent the intended parents can control the lifestyle of the surrogate and
will it not be interference with her Fundamental Right to Life and Personal
liberty as ensured under Article 21 of the Indian Constitution.
c. What if the child borne through surrogacy is suffering from any
physical or mental disability, can the couple abandon them? :
Surprisingly and sadly, even in this 21st century, some narrow-minded persons
exist in the world who doesnt treat human beings as human simply because their
different physical or mental construct. Troubles come up when commissioning
parents and surrogate mother turn out to be of such mentality. Lots of cases have
been reported where abnormal children have become nobodys children-
abandoned by the parents and the host mother.[26]
d. What if surrogate mother gives birth to twins or triplets (multiple
pregnancies): Another concern arises when surrogate mother gives birth to
twins or triplets. A very legitimate question arises as to whether the
commissioning parents can take one of them and refuse to accept other taking
the plea that they contracted for one child only. If they are so allowed, who will be
the parents of remaining children? Can surrogate be compelled to keep them with
her?[27]
e. Who can go for surrogacy? : This is another serious legal concern as to

whether single parents i.e., divorced or unmarried person, gay couple etc should
be allowed to go for parenthood through surrogacy. Practices across globe varies
in this regard .For instance, U.K., Russia, Greece, Netherlands, South Africa etc
does not provide marriage as an essential requirement. Britain requires them to
be partners, either married or not. Russia and Greece allows even single woman
to avail Surrogacy while South Africa and Netherlands , on the other hand, allows
both male and female singles to hire surrogate mother.
f. How many times can one go for surrogacy? : It is an established fact that
when a lady undergoes pregnancy, she passes through numerous physical,
biological, hormonal and emotional changes. Going through frequent
pregnancies (as surrogate mothers are prompted to do for the sake of earning)
may have serious health hazards for them. The question therefore gains
importance. However, there is no settled norm governing this aspect. Generally,
countries in order to promote the surrogacy business do not put any restriction
on these numbers. Netherlands, U.K., South Africa, Russia, Greece do not put any
restriction on the number of times a lady can be a surrogate. [28]
g. What should be the legal criterion to decide the suitability of the

couple as well as surrogate mother to enter into such contract? :
Practice of surrogacy since it very inception was aimed for a very noble cause of
enabling barren woman to have her own child. But, later on, with its
commercialization, countries looking at the element of profit involved in it,
allowed everyone to go for surrogacy, which now a days is leading to as serious
legal dilemma. Surrogacy laws in various countries lay down different eligibility
criteria for it. For instance, for availing surrogacy benefits, U.K. doesnt require
any medical reason, Netherlands allows only in cases of congenital absence of
uterus or a hysterectomy and any other condition which makes it difficult for the
intending mother to have a child, Greece, South Africa and Russia allows only in
case where she is unable to bear a child for medical reasons. Similarly, laws vary
in regard of age requirement for surrogate too. Netherlands permits only

those who are <44 years age, Russia puts 20-35 year limit while U.K., South
Africa and Greece doesnt put any restriction at all. Regulations differ in regard to
the requirement of partners consent for surrogate also. While U.K. and
Netherland doesnt require consent, Greece, Russia and South Africa does require
it. [29]
10. Legal regimes across the globe responded positively to the urgent call of the hour
and made legislations, in one way or the other, suiting their politico-legal conditions, to
regulate commercial surrogacy with special focus on ensuring fundamental human
rights to both the parents and child. India too took the matter seriously and asked Law
Commission of India to work on it.
The Commission submitted its 228thReport on "Need for Legislation to Regulate

Assisted Reproductive Technology Clinics as well as Rights and Obligation of Parties to
a surrogacy."The main observations had been made by the law commission are as:
Surrogacy arrangements will continue to be governed by contracts amongst

parties, but such an arrangement should not be for commercial purposes.
A surrogacy arrangement should provide for the financial support for surrogate
child in the event of death of the commissioning couple or individual before
delivery of the child.
A surrogacy contract should necessarily take care of life insurance cover for
surrogate mother.
Legislation itself should recognize surrogate child to be legitimate child.
The birth certificate of the surrogate child should contain the name(s) of the
commissioning parent(s) only. Right to privacy of donor as well as surrogate
mother should be protected.
Sex selective surrogacy should be prohibited.
Cases of abortion should be governed by Medical Termination of Pregnancy act
1971 only.
Following this and other reports like the one by The Department of Health
Research,[30] the Surrogacy Code, 2016, which has been cleared by Union Cabinet on
24th of August, was introduced in LokSabha on 21st November, 2016.[31]
SALIENT PROVISIONS O F THE NEW CODE -

a. Commercial Surrogacy banned [32]: Under the new code, Commercial
surrogacy has been completely banned and now it is allowed only for altruistic
purpose.[33]
b. Age limit: The code in clear words fixed age limit for both the surrogate mother
and the intended parents.[34]
c. Only Close relatives as surrogate: The code in an attempt to restrict
commercial surrogacy and for promoting altruistic one provided that No person
other than a close relative of the intending couple shall act as a surrogate. [35]
d. Once in lifetime: Keeping in view the health concerns attached to pregnancy,
the new bill restricted the number of times a lady can act as surrogate in her
lifetime.[36]
e. Couples only: The new Surrogacy code permits only couple, who are married
for at least five years to take the benefit of Surrogacy.[37]
f. Indians only: Considering the fact that most of the exploitation due to
surrogacy was caused by foreign couples who found India a cheaper destination
in terms of cost involved, the new Code has put a complete ban on Surrogacy
services for foreigners.[38]
g. Couple with no children only: the 2016 code allows surrogacy only if couple
have not had any surviving children.[39]
h. Establishment of a board to regulate the practice and enforce
compliance of the provisions.[40]
i. Penalty: The bill provides for penalty provisions in order to ensure compliance
of the regulations made therein.[41]
DRAWBACKS OF THE NEW CODE-

Although, government has made efforts to rectify its mistakes through drafting a
new bill on Surrogacy, the bill still suffers from several defects, few of which can
be corrected by revision by legislature while others cannot. Some of the loop-
holes of the present bill are as follows:
a. Physically challenged child: The new code although restricts surrogacy only
to those cases where intended couple doesnt have any surviving child, however,
an exception is created in case of physically and mentally challenged child. This
provision seems to support the idea that persons with disability are different
from normal ones and parents usually desire another the so-called normal child
if given any opportunity to choose. This is humiliating of threat differently-able
child and will certainly have disastrous impact on his psychological faculties
which is against the very fundamental right to life.
b. Clause 7 of the Code allows the intended couple to abandon the child
in few circumstances.[42]
c. There are certain natural and inevitable consequences attached to
Surrogacy which cannot be corrected by any Legal reform. For
instance, in order to avoid abandoning of the child, you may make a
law and compel either intending parents or the surrogate mother to
be parent of him/her, but by no law, they can be compelled to give
them the love and affection which they naturally and undoubtedly
deserves.
Therefore, summing up the affairs, there are no easy answers or solutions to this issue,
especially when we see the benefit of surrogacy to an infertile woman and at the same
time, the very many complications attached to it. Unarguably, the mankind has
advanced too ahead on the path of challenging and reverting the natural phenomena to
restore the original natural state. But, depicting optimistic zeal, as the saying goes-it is
never too late to correct your mistakes, society should start working towards controlling
and regulating this unnatural practice and restore the natural position so far it is
possible. One such step, as recommended by the authors of this paper is PROMOTING
ADOPTION. It is understandable that people who are infertile still carries desire to
have their child. But, is surrogacy the only and best resort before them? Definitely not.
Surrogacy is not needed in a country where there are so many orphans in need of love
and care.[43] It would be more hand if they adopt a baby and shower all their parental
live on the orphan. The authors do not find any logical reason for obtaining a child
where there are so many children around us waiting for adoption.
[1] The Report of the Committee of Enquiry into Human Fertilization and Embryology or the Warnock
Report (1984).
[2] The Black Law Dictionary.
[3] Chapter 16 in the Book of Genesis.
[4]Inthe Mahabharata, about 5000 years ago, Kunti conceived five children without sexual activity.
There is also mention of pregnancies transferred from one womb to another. Lord Krishna's mother
Devaki's pregnancy was transferred to Rohini.
Gandhari made Dhritarashtra the proud father of 100 children, though he had no biological relation with
them
[5] Surrogacy was favored big time by the American Indian society as a way to carry on their family name
and bloodline.
[6] 537 A 2d 1227
[7] Concern regarding same is reflected in the following words of Supreme Court in the Jan Balaz case-"Do
we treat children born out of surrogacy as a commodity? What do the Indian mothers receive for carrying
the baby? Now in society we calculate everything by money," a Bench of Justices G S Singhvi and A K
Ganguly observed.
[8] Supreme Court criticized Law Commissions 228th Report saying, "With all due respect to the Law
Commission, how can they call something with regard to children as an industry.
[9] The National Commission for Women says there are about 3,000 clinics offering surrogacy services in
India.
[10] Data reveals that procedure is more economical in India as surrogacy in countries such as the UK can
cost 13,000 ($18,000) while here it is half the cost.
[11] See Law Commission Report no. 228.
[12] ^India seeks to regulate its Booming Surrogacy Industry from Reuters Health Information 30 Sep
2013. By Nita Bhalla and MansiThapliyal;
[13] Regulators eye Indias Surrogacy sector; By ShilpaKannau; 18 March 2009; India Business Report;
BBC World.
[14] 537 A 2d 1227.

[15]
[16] JT 2008 (11) SC 150.

[17] AIR 2010 Guj 21.
[18]It is said that in the Mahabharata, Arjun's son Abhimanyu had learnt the art of fighting while in the
womb of his mother listening to Arjuna describing it. PrahaladMaharaj became a great devotee of Lord
Vishnu after hearing of his glories while in the womb of his mother.
[19] ('Baby M', 109 NJ 396, 537 A.2d 1227). In 1984, a New Jersey couple William Stern and Elizabeth
Stern contracted to pay Mary Beth Whitehead $10,000 to bear a child using artificial insemination of
William's sperm. The baby was born, but Whitehead decided to keep the child and refused the money. In
1987, New Jersey Superior Court held the surrogate contract valid, tore the baby away from Whitehead
and allowed the Sterns to adopt it. Stripped of parental and visitation rights, Whitehead appealed in NJ
Supreme Court, which in 1988, except allowing the Sterns to keep the baby, reversed much of the
decision.
[20]Jan Balaz v. Anand Municipality and 6 ors, AIR 2010 Guj 21.
[21]Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on March 23,
2007, denied parenthood to genetic parents since the twin babies were born to a surrogate mother at
United States. Interpreting the Civil Code of Japan, the Supreme Court, held a mother who physically
gives birth to a child is the legal mother.
Ukraine Surrogacy Laws are very favorable and fully support the individuals reproductive rights.. Child
born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to
herself.
Germany, as law stands today, does not recognize surrogacy agreements.
[22] Melissa Stern, otherwise known as "Baby M," was born in the U.S. The surrogate and biological
mother, Mary Beth Whitehead, refused to cede custody of Melissa to the couple with whom she made the
surrogacy agreement. The courts of New Jersey found that Whitehead was the child's legal mother and
declared contracts for surrogate motherhood illegal and invalid. However, the court found it in the best
interest of the infant to award custody of Melissa to the child's biological father, William Stern, and his
wife Elizabeth Stern, rather than to Whitehead, the surrogate mother.
[23] See Baby Manji Yamada v. Union of India, JT 2008 (11) SC 150.
[24]Jan Balaz v. Anand Municipality and 6 ors, AIR 2010 Guj 21.
[25] Supra, note 17.
[26] Baby Gammy, born with Down Syndrome to his Thai mother PattaramonChanbua, was abandoned by
the Australian couple that commissioned his birth.
[27]"A British woman who agreed to become a surrogate mother for an American couple is suing hem for
allegedly backing out of the deal because she is carrying twins. http://www.dailymail.co.uk/news/article-
65930/surrogate-sues-couple-turned-twins.html;"
[28] See Surrogacy Arrangements Act, 1985(U.K.); Dutch Society Of Obstetrics and Gynaecology
guidelines (Netherlands); Chapter 19, Childrens Act, 2005(South Africa); Article 1458 of the Greek Civil
Code (Greece); Article 51-52 Family Code, 1995; Federal Law on the Fundamentals of Protection of
Citizens Health in Russian Federation, 2011(Russia).
[29] Supra, note 32.
[30]On September 30,2015, India's Ministry of Health and Family Welfare, through its Department of
Health Research, published draft legislation regulating Assisted Reproductive Technology for public and
stakeholder comments.
[31] http://www.prsindia.org/uploads/media/Surrogacy/Surrogacy%20 (Regulation) %20Bill,
%202016.pdf.
[32] Clause 4 (ii)(b),(c) and (d) of the Bill provides:
(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except
for the following purposes, namely: (b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for commercialization of surrogacy or surrogacy procedures;
(d) when it is not for producing children for sale, prostitution or any other form of exploitation;
[33] Clause 2(b) of the Bill provides: altruistic surrogacy" means the surrogacy in which no charges,
expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses
incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the
surrogate mother or her dependents or her representative;
[34] Clause 4(iii) (b) (I) provides- no woman, other than an ever married woman having a child of her own
and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in
surrogacy by donating her egg or oocyte or otherwise;
Clause 4(iii)(c) (I) provides- the age of the intending couple is between 23 to 50 years in case of female
and between 26 to 55 years in case of male on the day of certification;
[35] Clause 4 (iii) (b) (II) of the Code.

[36] Clause 4 (iii) (b) (III) provides, No woman shall act as a surrogate mother or help in surrogacy in any
way by providing gametes or by carrying the pregnancy more than once in her life time.
[37] Clause 4(iii) (c) (II) of the code.

[38] Clause 4(iii) (c) (II) provides, the intending couple are married for at least five years and are Indian
citizens.
[39] Clause 4 (iii) (c) (III) provides, the intending couple have not had any surviving child biologically or
through adoption or through surrogacy earlier:
Provided that nothing contained in this item shall affect the intending couple who have a child and who is
mentally or physically challenged or suffers from life threatening disorder or fatal illness with no
permanent cure and approved by the appropriate authority with due medical certificate from a District
Medical Board.
[40] Chapter V of the code deals with composition, powers and functions of the National and State
Surrogacy Board.
[41] Chapter VII, Clause 36, 37 and 38 of the 2016 Code.

[42] The intending couple shall not abandon the child, born out of a surrogacy procedure, whether within
India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth
defect, any other medical condition, the defects developing subsequently, sex of the child or conception of
more than one baby and the like:
Provided that any child born out of surrogacy procedure, shall be deemed to be a biological child of the
intending couple and the said child shall be entitled to all the rights and privileges available to a natural
child under any law for the time being in force.
[43]According to a study done by SOS Children's Village in 2011, about 20 million children, which is 4% of
their population in India are orphans.
AN INSIGHT INTO THE PRACTICE OF SURROGACY

RUPAL JAISWAL
SYMB IOSIS LAW SCHOOL , PU NE
1. Surrogacy, one of the Assisted Reproductive Techniques (ARTs), has come into
vogue after 1978 when the first test-tube baby, Louise Brown was born in the UK.
This was not exactly surrogacy; however, it popularized what we now call
gestational surrogacy. Different societies have reacted differently to this practice
with very few nations regarding it as a legal and ethical.[1] The term surrogacy
comes from the Latin word subrogare which literally means substitute and
hence surrogacy is the substitution of a woman for another for the purposes of
bearing the latters child. To put it technically, surrogacy is defined as the process
by which a woman (third person) is injected with the sperms of a man
(prospective father) or with the embryo formed by fertilization of the ova and
sperm of a couple (commissioning parents) to carry it for the period of pregnancy
and the newborn is handed over to commissioning parents. [2] The surrogate
mother (who is the gestational mother) does not have any legal rights over the
child after the delivery.
2. Traditionally, surrogacy involved artificial insemination/ inter-cervical

insemination of the surrogate for the purposes of the conception of the child.
With advancement in medical sciences, it is now common to fertilize the sperm
and ova in a test tube after which the embryo is implanted in the surrogates
womb. Perhaps no other ART has attracted so much controversy as surrogacy.
Altruistic surrogacy, which involves gratuitous services by a surrogate, might
have gone unnoticed, however, commercial surrogacy which involves
monetary payment for the services rendered, has kicked up the row over ethics
and morality.[3] This is mainly because of the various aspects attached to it such
as conventional perceptions of reproduction, confusion over the applicability of
contractual laws to the surrogacy agreements, controversial legal or natural
parental status, citizenship of the child, emotional bonding of the surrogate
mother with the child, commercialization of reproduction, protection of

individual liberties and right to privacy etc. In India, surrogacy has become a
source of survival for many rural women. They depend on the foreign couples
who demand a child from their womb, to earn their livelihood. India has recently
become the surrogacy capital of the world owing to lower costs of surrogacy and
absence of any laws regulating it.
3. Until recently, both altruistic and commercial surrogacies were legal in India,
however, the Supreme Court order in 2015 has rendered international
commercial surrogacy illegal in India.[4] On the other hand, Indian couples can
avail commercial surrogacy in India.
CRITICS OF SURROGACY SHOW THE OTHER SIDE OF THE COIN
4. The strongest opposition to surrogacy stems out of moral and ethical concerns.
From time to time, feminists have pointed out that commercialization of
surrogacy would mean allowing commodification and technically colonization of
womens body. This would degrade the already inferior position of women in the
patriarchal society. Because of the economic disparities between the
commissioning couples and the surrogates, there is ample scope for exploitation
of the latter.[5] Thus, surrogacy is against the notion of justice and is unlawful.
5. In India, the sale of organs of the human body is outlawed by the National Organ
Transplant Act, 1984. It is argued that this prohibition implies a prohibition on
surrogacy as well. This is because commercial surrogacy involves the sale of
gamete or womb, all the more, the sale of a part of the body of a woman in the
form of a child. At the same time, altruistic surrogacy shall be allowed, as it is
more of a donation without any benefit to the surrogate mother. Thus, altruistic
surrogacy is praised by the orthodox society as a selfless service. Some critics of
surrogacy hold that payment of high compensation to the surrogates is itself
exploitative as it may compel the poor women to enter into unconscionable

agreements due to their socioeconomic vulnerability.[6]
6. Surrogacy has been defined by some as a form of slavery that is analogous to
prostitution. They say that a biological mother has the right to raise her own
child. There are inseparable bonds of affection between a mother and child. Even
though a surrogate may promise by contract to detach herself from the child, the
fact remains that ultimately, the surrogate mother is reluctant to give up the
child. Surrogacy agreements force the mothers to sell their babies and hence are a
restriction on their freedom to raise their own children, which can be equated to
slavery.
CURRENT SURROGACY PRACTICES: THE CHALLENGES
7. Most of the Surrogacy agreements in India involve foreigners as the

commissioning parents. This is because of the comparatively lax regulations and
cost advantage over their native countries. However, this type of agreements may
pose problems later in time, when the child is born. The sticky issue in
international commercial surrogacy is the denial of the nationality of the child by
the home state of the intending parents, or even refusal of that State to accept a
foreign Courts judgment on the nationality of the child.[7] Sometimes, the
parentage of the child is controversial because of non-acceptance of a foreign
birth certificate in certain countries.
8. There are no laws governing the citizenship of such a child in India. Moreover,
this child may not be accepted by the host country on the grounds of it having
been born out of an illegal practice (if surrogacy is illegal in that country).
9. Surrogacy agreements fail to provide protection against exploitation to the
surrogated mothers in almost all the cases. Consequently, these surrogates
undergo tribulations in the form of abandonment of a child after birth, refusal to
pay in case the child is born with deformities or is stillborn etc. On the flipside,
the surrogates who may refuse to comply with the instructions of the
commissioning parents when it comes to the safety of the foetus; they may be
uncooperative and even refuse to deliver up the child after birth.
10. In case the prospective parents of the surrogated child divorce or separate before
its birth and refuse to own up the child, the surrogate mother is left in the lurch
with no means to raise the child. Such problems call for legal enforcement of the
surrogacy agreements to prevent detriment to any one of the parties to it.
11. Infertility clinics in India are unregulated and underdeveloped. There are no
safety standards that they must follow and consequently, the surrogates are not
given the care that pregnant women require. Recent cases of death of surrogate
mothers suggest that after the child is born and handed over to the
commissioning parents, the clinics go lax and neglect the after-delivery health
check-up of the mothers.[8]
LEGAL BACKING TO SURROGACY IN INDIA: REALITY OR ILLUSION?
12. Commercial Surrogacy, as opposed to altruistic surrogacy, has attracted much

criticism from the governments of developed and developing countries alike. In
this ever-changing and increasingly liberalising world, perspective on commercial
surrogacy has remained fairly constant. In the UK, commercial surrogacy
agreements are either void or illegal. While Indiana, New Jersey and New York
etc. expressly forbid commercial surrogacy in US, California, Maine, Virginia etc.
allow commercial surrogacy. With the exception of India, Russia and Ukraine, all
the nations have either criminalized surrogacy or consider surrogacy agreements
unenforceable.
13. Currently, surrogacy in India is governed by the Indian Council Medical Research
guidelines. It must be noted that by virtue of being mere guidelines, these are
non-justiciable in the courts of law. Since 2002, commercial surrogacy is
permitted in India. This permissibility is not due to express sanction of any
statute, rather there are no laws which either forbid surrogacy or explicitly allow
it and hence, surrogacy is implicitly assumed to be permissible.
14. In the absence of surrogacy laws, the Indian Contract Act, 1872 comes to the
rescue of surrogacy agreements entered into by free consent of the surrogate
mother and the commissioning parents. These agreements are enforceable in the
same manner as any other contract provided the other essentials of a valid
contract are fulfilled.[9] Further, the courts can entertain surrogacy disputes, as a
matter of the civil suit, by virtue of their authority under the Civil Procedure
Code, 1908 to entertain all civil suits unless expressly or impliedly barred.[10]
15. As no practice in the modern world can sustain itself without legal or moral
sanction, surrogacy in India was going astray without any legal framework to
regulate it. More specifically, surrogacy practices were marred by legal disputes
over the nationality and custody of the new-born child. In the Baby Manji
case[11], the commissioning parents were a Japanese couple who divorced one
month before the baby was born and refused to take custody of the child. After
the surrogate mother also abandoned the child, the grandmother of the child (i.e.
commissioning fathers mother) filed a habeas corpus petition for the childs
custody. This claim was counter-attacked by the Government of India, who
argued that the grandmother was not related to the child. However, the Court
held that a child born through ART shall be presumed to be the child of the
genetic parents and the surrogate mother shall have no rights over the child.
Accordingly, the petitioner is the grandmother of the child and hence, must be
issued the passport to take the child along with her to Japan. This case brought to
the limelight the issues surrounding unregulated surrogacy practices.
16. In the light of this haphazard practice of surrogacy and on being directed by the
Court, the central government came up withAssisted Reproductive Technology
(Regulation) Bill, 2014. This Bill prohibits foreigners from hiring a woman
surrogate in India. At the same time, single parents and homosexual couples are
barred from reproducing a surrogate child in India. Moreover, the non-resident
Indians, Overseas Citizens of India, and Persons of Indian Origin and foreigner
married to an Indian citizen shall be allowed to engage a surrogate mother only
after they produce a medical certificate proving their infertility and a notarized
agreement with the surrogate mother.[12] The Bill seeks to make the
commissioning parents legally bound to accept the baby born out of the
surrogacy arrangement.[13] Further, the Bill specifies the age 20 and 35 years as
the minimum and maximum age limit for a woman to act as a surrogate. [14]The
most prominent achievement of this Bill, if successfully passed, would be to make
India one of the few countries in the world to legalize commercial surrogacy
explicitly.[15]
17. The legislative opinion has, however, gone with the worlds public opinion, which
is to condemn commercial surrogacy which is evident from the approval of the
Surrogacy (Regulation) Bill, 2016 by the Parliament on 23 rd August 2016.[16] The
special features of this Bill are:
a. The Bill prohibits commercial surrogacy in India though it allows altruistic
surrogacy.[17] The effect of the provision is to throttle the thriving business
of surrogacy in India.
b. The Bill expressly debars homosexuals, single parents, live-in partners,
and foreigners from having a child through surrogacy procedures in India.
c. It is mandatory for any surrogacy clinic to be registered under the Act.
National Surrogacy Board[18] and State Surrogacy Boards[19] are to be set
up for regulating the activities of Surrogacy Clinics and to cancel their
registration in case they breach the obligations imposed under the Bill.
d. The Bill criminalizes such acts[20] as:
(i) Advertisements, in any form, soliciting customers for a
surrogate mother or which promote commercialization of surrogacy;
(ii) Abandonment or causing abandonment of a child born through
surrogacy or exploitation of such child or the surrogate in any manner
whatsoever;
(iii) Selling of gametes or embryos or gametes for the purposes of
surrogacy within India or importing it outside India;
For the commission of any of the above-mentioned offences, the
prescribed punishment is ten years imprisonment and fine amounting to
Rs. 10 lakhs. All the offences under the Act are cognizable, non-bailable
and non-compoundable.[21]
e. It prescribes the qualifications of a surrogate mother as well as the

intending parents. The surrogate mother must be within 25-35 years of
age and can conceive only once as a surrogate. Infertility is a pre-requisite
for couples resorting to surrogacy.
18. With these salient features, this Bill aims to ensure fair treatment to the surrogate
mothers (though ignores their right to livelihood!!) and the prevention of
trafficking in children. According to the External Affairs Minister, the Bill
corresponds to Indian ethos and shall curb the celebrity status that surrogacy is
accorded these days in India.[22]
UNVEILING THE FLAWS IN THE SURROGACY (REGULATION) BILL, 2016
19. The introduction of this new Bill is a welcome step as far as the sorry state of
affairs in the surrogacy practices in India is concerned. However, the Bill is
apparently too harsh on the surrogate mothers and is highly characteristic of a
patriarchal society.
20. The decision to ban commercial surrogacy altogether is vastly disproportionate to
the purpose of prevention of exploitation of surrogate mothers. According to a
case study conducted on women surrogates in Kolkata, the incentive for being
surrogates in almost all the cases was monetary. Even if there may be cases of
exploitation of surrogate mothers, it cannot be denied that surrogacy in India has
proved to be a lucrative option for the women to feed their starving families. [23]
Evidently, the surrogacy industry will suffer a setback given that the reproductive
tourism industry has the value of 25,000 Crores, i.e. US Dollars 5,000 million.[24]
21. Secondly, prohibition of surrogacy for homosexual couples, single parents and
foreigners is highly discriminatory. This provision is violative of the right to
equality enshrined under Art. 14 of the Constitution. It will again trigger the
debate around criminalization of homosexuality under Section 377 of the Indian
Penal Code.[25]
22. Keeping aside constitutional perspective, even from the economic perspective,
the decision is irrational as Indian economy will lose a share, even, though a
piecemeal, of its foreign exchange that comes from the foreigners flogging to
India for availing surrogacy services. While surrogacy for Indian couples earns
Rs. 80,000- 1,00,000, foreign couples pay a handsome sum ranging from Rs.
2,00,000 to Rs. 5,00,000.[26] Since international commercial surrogacy in India
are about to be declared invalid by The Surrogacy (Regulation) Bill, 2016, the
growth of surrogacy business will be hampered.
23. Thirdly, such provisions of the Bill which criminalize advertisements of surrogacy
violate freedom of speech and expression.[27] The penal restrictions are
unreasonable as advertisements do not always intend commercialization and the
prohibition of any expression or appeal to surrogacy is indirectly a violation of
the right to information of the people in general and infertile couples in
particular. Advertisements are a way to create awareness amongst the masses
and such prohibition will prevent the surrogacy clinics to even promote altruistic
surrogacy.
24. Fourthly, criminalization of commercial surrogacy has a patriarchal tint to it.
Surrogacy, whether altruistic or commercial, may involve exploitation of women.
Considering the family pressure which compels women relatives of the intending
parents to consent to become surrogates[28], it is beyond comprehension to allow
altruistic surrogacy while prohibiting commercial surrogacy, at the same time.
25. Lastly, the rationale behind the criminalization of commercial surrogacy in India
is opposed to the precepts of compensation. Saying that surrogacy should be
criminalized because women are not paid their due share is as illogical as
prohibiting farmers from selling their crops because the middlemen exploit them.
Why should surrogate mothers bear the brunt of misdeeds of their clients or the
infertility clinics? In any case, the abuse of the workers by the employers can be
no justification for prohibiting the workers from working at all! [29]
A RATIONAL APPROACH TO SURROGACY: SUGGESTIONS FOR REFORMS

26. As a viable alternative to the childless couples to have a child biologically related
to at least one of them, surrogacy ought to be promoted, not prohibited. [30]
Further, in a democratic country like India, the right to privacy and to make
choices about conception and contraception must not be curtailed. As has been
rightly said:
In a culture that respects autonomy, restrictions make one person
subservient to another's conception of the good; they impose someone
else's conception of the good life on me without my consent.[31]
27. The above quote is suitably applicable to the practice of surrogacy around the
world today. Why should a woman let the society decide what is right or wrong
for her?[32] Does not our Constitution guarantee to us the right to life and
personal liberty? Therefore, what I do must not be the concern of anyone else. In
the view of the author, following measures can help to guarantee the right to self-
determination to surrogate mothers and prevent their exploitation:
a. One of the principal reasons for exploitation of Indian surrogates by the
commissioning parents is the uncertainty over the contractual rights and
obligations attached to each one of the parties. It is therefore suggested that
provisions concerning the rights of a surrogate mother, e.g. right to be paid
medical expenses and other miscellaneous expenses related to pregnancy
must be clearly laid down by the legislature. The Draft Surrogacy (Regulation)
Bill, 2016 addresses this aspect; however, it limits the right to altruistic
surrogates only.
b. Secondly, India does not have any separate laws governing the nationality of
children born out of surrogacy agreements. However, the courts in India have
taken the view that such children are legitimate children of the
commissioning parents and hence their nationality will be conferred on the
child as well.[33] Tracing the decision of the Court, the government should
make Rules allowing issuance of passport to the children so that the
foreigners (who are the commissioning parents) may take the child to their
nation.
c. Indian Government should, through diplomatic channels, support the cause

of children born out of surrogacy in India, for obtaining the nationality of the
State to which the commissioning parents belong. Further, bilateral
agreements can be signed by countries allowing the conferral of citizenship on
the surrogated children born in each others territory.
d. The limitation of only one child per surrogate mother seems quite
impracticable. Undoubtedly, the provision has been inserted out of concern
for the health of surrogate mothers; however, this is too narrow a perspective.
Each surrogate should be allowed to reproduce at least two babies during the
prescribed period of surrogacy, i.e. 25-35 years. Moreover, it must be made
mandatory for a surrogacy clinic to conduct a medical examination of the
surrogate women before hiring them for surrogacy.
e. To provide for a healthy separation of the surrogate mother from the newborn
child, there must be provisions for regular counselling sessions for the
women. Her heart and mind must be moulded to believe that she is only a
vessel which contains somebody elses water and that she would receive
payment for her services.
f. In a country like India, where Rule of Law is recognized as the basic structure
of our Constitution, arbitrary differentiations such as debarring single parents
and homosexuals from engaging in surrogacy agreements must not be
tolerated. Such discriminatory provisions in the Bill should be struck down
before it becomes an Act.
g. Apart from legislative reforms, there is a need to create awareness about the
practice of surrogacy, and therefore the penalties imposed on advertisements
on commercial surrogacy ought to be dropped. NGOs and infertility clinics
can play an active role in spreading knowledge about both the means and
consequences of surrogacy.
28. In spite of the inherent limitations as pointed out above, the Surrogacy
(Regulation) Bill cannot be called a failure altogether. It is a positive attempt on
the part of the Legislature to regulate the ills associated with surrogacy in India.
CONCLUSION
29. All the debates around surrogacy invariably involve the question of womens
rights. An analysis of surrogacy with a feminist perspective is, therefore,
inevitable. Through this research paper, it has been determined that surrogacy
has become a booming business in India and to prohibit it would be to ignore the
right to livelihood of so many surrogate mothers in India. The viable alternative,
as has been argued in the research paper, is to regulate surrogacy. Criminalizing
commercial surrogacy would force those dependent upon it to go underground,
thereby providing a fertile ground for further exploitation of poor women and
unprecedented selling of children. Chances of trafficking cannot be ruled out
either.[34]
30. Surrogate mothers in India are often equated to prostitutes while male sperm
donors face no such stigma. Such misconception is due to high rates of illiteracy
prevalent in India. This unnecessary stigmatization of women can be uprooted by
the legislative instruments only. Thus, legalization of commercial surrogacy will
ultimately lead to its acceptance by the Indian masses.
[1]Friends:
The One with Phoebe's Uterus; CTR. FOR SOC, RESEARCH, SURROGATE MOTHERHOOD-
ETHICAL OR COMMERCIAL 15, http://www.womenleadership.in/Csr/SurrogacyReport.pdf.
[2]Baby Manji Yamada v Union of India and Another, Judgments Today 2008 (11) Supreme Court
150, 5-11, pp152-153.
[3] Amy M. Larkey, Redefining Motherhood: Determining Legal Maternity in Gestational Surrogacy
Contracts, 51 DRAKE L. REV. 605, 608 (2003).
[4] Union of India & Anr. v. Jan Balaz&Ors. (2015) SC (India); Nirnala George, India's lucrative
surrogacy
business has been shut down, STARTRIBUNE (Dec. 24, 2015, 6:15 PM),
http://www.startribune.com/india-slucrative- surrogacy-business-has-been-shut-down/363333171/.
[5] Iris Leibowitz-Dori, Note, Womb for Rent: The Future of International Trade in Surrogacy, 6MINN.
J. GLOBAL TRADE 329, 331 (1997).
[6]
Mary Becker, Four Feminist Theoretical Approaches and the Double Bind of Surrogacy, 69 CHI.-
KENT. L. REV. 303, 308 (1994).
[7]HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, PREL. Doc. No 3A, THE
PARENTAGE /
SURROGACY PROJECT: AN UPDATING NOTE (Feb. 2015), https://assets.hcch.net/docs/82d31 3 1-

294f-47fe-
9166-4d9315031737.pdf,
[8]Vandana Shukla, Unregulated Surrogacy: Law Yet to Deliver, THE TRIBUNE, June 24, 2015; Scott
Carney, Inside Indias Rent-a-womb Business, MOTHERJONES, 2010.
[9] Section 10, Indian Contract Act, 1872.
[10]
Section 9, Civil Procedure Code, 1908; E Achuthan Nair v. P Narayanan Nair and Another AIR 1987
SC 2137.
[11] JT 2008 (11) SC 150.
[12] Section 60(13), Assisted Reproductive Technology (Regulation) Bill, 2014.
[13]Id., Section 60(1).
[14]Id., Section 60(5).
[15]Id., Section 60 (3)(a).
[16]Surrogacy bill gets the Cabinet nod, Special Correspondent, THE HINDU, August 24, 2016.
[17] Section 4, The Surrogacy (Regulation) Bill, 2016.
[18]Id., Section 14.
[19]Id., Section 23
[20]Id., Section 35.
[21] Section 40, The Surrogacy (Regulation) Bill, 2016.
[22]Even celebrities with 2 children opted surrogacy: Sushma takes a jibe at SRK, Aamir, Aug 24, 2016,
http://www.deccanchronicle.com/nation/current-affairs/240816/new-bill-allows-only-legally-wedded-
indian-couples-to-opt-for-surrogacy.html.
[23]AditiMalhotra & Joanna Sugden, India's Surrogacy Industry Needs Regulation, Not a Ban, Say
Women's Rights Groups, WALL ST. J., (Nov. 17, 2015, 11:52 AM),
http://blogs.wsj.com/indiarealtime/2015/11/1 7/indias-surrogacy-industry-needs-regulation-not-a-ban-
saywomens- rights-groups/.
[24]ANIL MALHOTRA AND RANJIT MALHOTRA, SURROGACY IN INDIA- A LAW IN THE MAKING,
Universal Law Publishing Company Pvt. Ltd. (2013).

[25] Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors, AIR 2014 SC5 63.
[26]India's Surrogacy Tourism Takes a Hit The Ban on Foreign Clients,Raksha Kumar, December 11,
2015, https://www.foreignaffairs.com/articles/india/2015-12-11/indias-surrogacy-tourism-takes-hit.
[27] Art. 19(1)(a), The Constitution of India, 1950.
[28] Simmons, R. G., S. Klein Marine, and R. L Simmons, Gift of life: The effect of organ trans- plantation
on individual, family, and societal dynamics, (New Brunswick, NJ: Transaction 1987).
[29] Berta E. Hemandez-Truyol and Jane E. Larson, Sexual Labor and Human Rights, 37 COLUM. HUM.
RTs. L. REV. 391 (2006).
[30] Debora L. Spar, For Love and Money: The Political Economy of Commercial Surrogacy Review of
International Political Economy, 287-309 (Taylor & Francis, Ltd., Vol. 12, No. 2, May, 2005).
[31] Smith, Wombs for Rent, Selves for Sale?, 4 J. CONTEMP. HEALTH L. & POL'Y 23-36 (1988).

[32]Goodman, Baby M: The Right to Give Away Your Rights?, WASH. POST, March 24, 1987, at A12, col.
1.
[33] Jan Balaz v. Anand Municipality, AIR 2010 Guj 21.
[34]NirmalaGeorge, Surrogates feel hurt by India's ban on foreign customers, CTV News (Nov. 8, 2015
2:09 AM), http://www.ctvnews.ca/health/surrogates-feel-hurt-by-india-s-ban-on-foreign-customers-
1.2663609.
RIGHT TO INFORMATION: WHAT IS IT?
AKASH MISHRA A ND PRA TIK SONI

NATIONA L LAW INSTITU TEU NIVE RSITY (NLIU), BHOPAL
1. Right to Information is a basic human right of every human being. The renowned
French philosopher Michel Foucault once opined, power is derived from knowledge and
information is the basic component of knowledge. Information makes men wise and it is
competent enough to cope up with the modern world. So, it is the duty of government to
inform citizens about day to day happening whatever within the government. The
transformation from governance to good governance is possible, if there is possibility of
increasing participation of people in governance and free access of information. By
realizing this fact, Indian parliament has passed Right to Information act, 2005 to make
government, accountable, responsible, efficient and transparent.
In India, right to information is the need of hour. Human security, shelter, food,
environment and employment opportunity are all bound up with right to information.
In the absence of information on this issue, people cannot live a dignified life and will
remain ever marginalized group in the society. It is a powerful instrument to protect the
fundamental rights of people. Corruption and criminalization is the nerve of Indian
bureaucracy today. The secrecy they have maintained is a source of corruption and
harassment. Though India is the world largest democracy, it now fails to attain
confidence from common people.
As a taxpayer, each person should have the right to know the functioning of government
machinery. In addition to this, in a democratic country, a citizen can be regarded as an
asset only when said citizen develops the skill to gain access to information of all kinds
and to put such information to effective use. Without intellectual freedom, the success of
democratic governance cannot be imagined. Information is now the sole of every
government. The need for transparency and efficiency in the governance become more
important to achieve the goal of good governance.
BACKGROUND OF RTI IN INDIA
SOME LANDMARKS IN TH E RTI JOURNEY:

1975: Supreme Court of India rules that the people of India have a right to know.
1982: Supreme Court rules that the right to information is a fundamental right.
1985: Intervention application in the Supreme Court by environmental NGOs following
the Bhopal gas tragedy, asking for access to information relating to environmental
hazards.
1989: Election promise by the new coalition government to bring in a transparency law.
1990: Government falls before the transparency law can be introduced.
1990: Formation of the MazdoorKisan Shakti Sangathan (MKSS) in Rajasthan and the
launching of a movement demanding village level information.
1996: Formation of the National Campaign for Peoples Right to Information (NCPRI).
1996: Draft RTI bill prepared and sent to the government by NCPRI and other groups
and movements, with the support of the Press Council of India.
1997: Government refers the draft bill to a committee set up under the Chairmanship of
HD Shourie.
1997: The Shourie Committee submits its report to the government.
1999: A cabinet minister allows access to information in his ministry. Order reversed by
PM.
2000: Case filed in the Supreme Court demanding the institutionalization of the RTI.
2000: Shourie Committee report referred to a Parliamentary Committee.
2001: Parliamentary Committee gives its recommendations
2002: Supreme Court gives ultimatum to the government regarding the right to
information.
2002: Freedom of Information Act passed in both houses of Parliament.
2003: Gets Presidential assent, but is never notified.
2004: National elections announced, and the strengthening of the RTI Act included
in the manifesto of the Congress Party.
May 2004: The Congress Party comes to power as a part of a UPA coalition government,
and the UPA formulates a minimum common program which again stresses the RTI.
June 2004: Government sets up a National Advisory Council (NAC) under Mrs. Sonia
Gandhi.
August 2004: NCPRI sends a draft bill to the NAC, formulated in consultation with
many groups and movements. NAC discusses and forwards a slightly modified version,
with its recommendations to the government.
December 2004: RTI Bill introduced in Parliament and immediately referred to a
Parliamentary Committee.
However, Bill only applicable to the central government.
Jan-April 2005: Bill considered by the Parliamentary Committee and the Group of
Ministers and a revised Bill, covering the central governments and the state introduced
in Parliament.
May 2005: The RTI Bill passed by both houses of Parliament.
June 2005: RTI Bill gets the assent of the President of India
October 2005: The RTI Act comes into force.
RIGHT TO INFORMATION ACT AND ARTICLES OF INDIAN

CONSTITUTION
2. The Right to information is a basic human right derived from Art 19(1) (a) of the
constitution of India. It states that all the citizens have the right to the freedom of
speech and expression and Art 21 deals with right to life of citizens. Constitution of India
1950 stated that the court has recognized the right to access of information from
government department is fundamental to democracy. However, the right to
information does not mean the free flow of information without any restrictions. Like all
other fundamental rights, the right to information has also certain reasonable
restrictions.
3. Once the Apex Court opined that the people of this country have a right to know every
public act, everything that is done in a public way, by their public functionaries. They
are entitled to know the particulars of every public transaction in all its bearing.
The right to know, which is derived from the concept of freedom of speech, though not
absolute, is a factor, which should make one wary, when secrecy is claimed for
transactions, which can, at any rate have no repercussions on public security. To cover
with a veil, the common routine business is not in the interest of the public. Such
secrecy can seldom be legitimately desired. It is generally desired for the purpose of
parties and politics or personal self-interests of bureaucratic routine. The responsibility
of officials to explain and to justify their acts is the chief safeguard against oppression
and corruption.
4. In Bennette Coleman v. Union of India[1], in 1973, our Supreme Court ruled that
the right to freedom of speech and expression guaranteed by Art. 19(1) (a) included the
right to information.
In State of UP v. Raj Narain[2], in 1975, Justice Mathew explicitly stated: It is not in
the interest of the public to cover with a veil of secrecy the common routine business
the responsibility of officials to explain and to justify their acts is the chief safeguard
against oppression and corruption.
5. In Secretary, Ministry of I & B, Government of India v Cricket
Association of Bengal[3], in 1995, the Supreme Court held that the right to impart
and receive information from electronic media was included in the freedom of speech.
6. S.P. Gupta v. Union of India[4], in 1982, the right of the people to know about
every public act, and the details of every public transaction undertaken by public
functionaries was illustrated.
7. In People's Union for Civil Liberties v. Union of India [5], in 2004, the right to
information was further elevated to the status of a human right, necessary for making
governance transparent and accountable. It was also emphasized that governance must
be participatory.
IMPACT
8. RTI Act is one of the most people friendly legislation ever. Thousands have benefited
from it.
But it is true that more than five years after Parliament passed the Act in June 2005, the
road to accessing the information remains arduous. RTI has made both tangible and
intangible impact on the system and its people. People have used the RTI tool to get
their ration cards, passports, pension funds, birth certificates, income tax refunds etc.
There have been cases when people as old as ninety years and as young as nine years
have taken recourse to RTI to get their work done. People below the poverty line,
disabled and blind people also have used it to their advantage. Big scams have been
averted by the use of RTI. e.g., when information revealed by RTI exposed that 87% of
wheat and 94% of rice meant for the poor were siphoned off by the shopkeepers and
food grain officers, steps were taken to streamline the system. In 2007, data obtained
under RTI inspired citizens to question elected representatives to stop a scam worth
over Rs. 6,000 crores in the Crawford Market redevelopment issues in Mumbai. RTI Act
has been incorporated in the National Rural Employment Guarantee Act (NREGA). RTI
has been judiciously used to expedite NREGA.
9. The impact of RTI is palpable. People do feel more empowered. Their bargaining
power vis-a-vis public officials has increased manifold. Right to information has
definitely resulted in greater transparency in governance. All the levels of the
Government The Centre, states and local bodies, including village level Panchayats
have put their records in public domain, through publications as well as internet in the
regional languages. RTI applications have annually increased by 8 to 10 times.
10. The implementation of RTI has been better in states that adopted RTI Act before
2005. This means that with time its implementation and use would definitely pick up.
The impact includes its use by the general public and by the marginalized groups,
change in the mindset and attitude of people as well as the authorities.
MAJOR CONCERNS ON THE SUBJECT MATTER
11. Some of the major concerns in relation to implementation of RTI Act as expressed
from various quarters may be considered as below:
(I) DISC LOSURE OF FI LE NOTING:

One of the most debatable and important concerns raised in respect of RTI Act from the
very beginning is regarding disclosure of file noting. The government and bureaucracy
are concerned over the exposure of file noting to the public that "It will act adversely
against the requirement of free and frank opinion by the public officials in decision
making process In this context it would be appropriate to mention that file noting are
ad hoc written notes added to file by officials and thus can give a critical insight into the
government decision making process. The exclusion of file noting would undermine the
spirit of bureaucratic openness and accountability, which the law embodies.
The purpose of the Act is to open government's decision-making process to public
scrutiny. In this context, it would be appropriate to consider what record is. Section 2(i)
(a) of the Act[6] defines `record' to include any document, manuscript and file. The
Manual of Office Procedure defines 'file' to cover 'notes' and 'appendices to notes'.
Further under Public Records Rules, 1997 'file' means 'a Collection of papers relating to
public records on a specific subject matter consisting of correspondence, notes and
appendices thereto'. Thus, from a legal and technical point of view the term file as
understood in Section 2(i)(a) of the RTI Act includes file noting and it can legally be
disclosed as per the requirement of the law.
In addition, the disclosure of noting will certainly ensure application of mind of the
decision-maker to the issues involved and thereby enhance the quality of decisional
process. It may also be mentioned that compulsion of disclosure of file noting will
reduce to a great extent the administrative culture of putting something as part of record
on dictation or in a mechanical manner. Disclosure of file notings may also be
considered from the point of view of the promoting the overall culture of good
administrative practice. It would be appropriate to mention the decision of the Central
Information Commission that the "file noting" were an integral part of a file. It was
further held by the two-member bench of the Commission that a citizen has the right to
seek the information in file noting unless covered by the usual exceptions under Section
8 of the RTI Act.
(II) COST OF IMP LEME NTA TION:

Another major concern has been the cost of implementing RTI Act. Such concerns
keeping in view the actual facts viz.; the savings to the government through reduction in
the level of corruption and maladministration by implementation of the Act would be
more than the cost on its implementation. Additionally, it may also be mentioned that
the total cost on administration of nation certainly comes from the taxes, which the
citizens pay to the government and the cost on implementation of RTI would be
negligible as compared to the total cost on administration. This may also be said other
way round that the taxpayers have all the right to know that how their government is
making expenditure of their money. Thus, the concern relating to cost on
implementation of RTI Act has been blown out of proportion and ill-founded.
(iii) Misuse of Information:
With the passing of Right to Information Act, 2005 any citizen of India can ask for any
information from public authority, any information about public servant etc. This is a
marvelous step in the direction of transparency. However, what to do of dummy RTI
applications i.e. after filing the application all correspondence is returning undelivered
than what could be the rationale of this Act. Therefore, a good law like Right to
Information (RTI) was being misused to ask irrelevant and intrusive questions seriously
impeding the working of the concerned authorities. There has also been the
apprehension that the information sought under the RTI Act would be misused or used
to blackmail officials or organizations.
In this context it should be remembered that this law can be used to access the truth,
therefore, it may be said that how one can misuse the truth. The situation of
blackmailing the officials or organizations will only emerge when the official is placed in
a privileged position to maintain secrecy of sensitive information. It is the situation of
secrecy coupled with unguided discretion of authority, which creates a situation of
blackmailing in favor of official position and not the other way around. It may further be
said that the scope of misuse or blackmail will be reduced or minimized to a great extent
in a situation of transparency and free access to information. In this way transparency
regime is a sure guarantee against chances of misuse or abuse of public office.
Transparent exercise of public power by public bureaucracy is, therefore, a guarantee
against the misfeasance, non-feasance and late feasance of public power.
(IV)CHOICE OF INFORM A TION COMMISSIONERS:

This is yet another major concern that the majority of Information Commissioners
appointed at both the Centre and the state levels have been retired high-ranking
members of the bureaucracy. One of the major concerns is that it is they who were part
of the secrecy regime in the functioning of public administration system for a long
period of their career, therefore, their mindset may not be in favor of promoting
transparency. Yet another strong reason, which may go against such appointments, is
the requirement of the Act itself.
The Act requires that the Commissioners may be appointed from the category of persons
having "eminence in public life with wide knowledge and experience in law, science and
technology, social science, management, journalism, mass media or administration and
governance". In view of this the appointment of retired bureaucrats in majority may not
be justified rather goes against the express provision of the Act. In addition, this may
also give an impression that all those who are responsible for administrative culture of
secrecy are now trying to ensure transparency. According to a study 58 per cent
Information Commissioners are from administration and governance sector. Out of 60
Information Commissioners 27 were retired IAS officers.
OPERATIONAL ISSUES ON THE SUBJECT MATTER
12. The passing of a law is no doubt one of an extremely important part of securing the
right to information but it is not the ultimate step. It is the effective implementation of
the law, which makes the statute a success and the right to information meaningful.
There are a number of aspects, which are required to be taken into consideration for
effective implementation and operationalization of the right to information legislation.
Building public awareness, promoting an informed civil service, encouraging cultural
change within the civil service, developing an efficient and well-organized information
management system are some of important facets, which require immediate focus to
realize the right to information.
13. With relation to creating public awareness, it is incumbent on the government to
educate and make aware the public of their right of access to information, especially
how they can apply, as part of promoting a culture of openness and responsiveness
within government. The government supported public information campaigns are
extremely important tools to achieve the goals of right to information. Campaigns need
to employ a variety of communication mechanisms including print and electronic media
and all other available modes of communication to reach the widest possible segments
of the public, including those in rural areas and those who are illiterate. Governments
should also produce and distribute literature in a variety of forms including
governmental websites on how citizens can use their rights under the legislation.
Effective national information and communication strategies to make information
available are an essential part of open and transparent government.
14. The media also has an important role to play in raising awareness on the right to
information. To have an informed civil service, provision of training on right to
information for employees is an important requirement. Such training should deal with
why access to information is important, the scope of any law and the procedures by
which people request information and how requests should he responded to, how to
maintain and access records. Such training programs will develop a positive mind set
among the officials and the law will be seen as a positive benefit to officials, rather than
burden.
15. There is a need to develop cultural change among the civil servants and public
officials. Governments with a long history of secrecy will tend to resist releasing
information. Public officials weaned on secrecy tend to regard information as power and
are reluctant to give it up. They therefore, delay the processing of information. In the
administrative set-up public officials tend to regards the files they hold as their own
personal property. Within traditionally secretive bureaucracies, information itself is a
form of power and officials are reluctant to share it with other officials and most rarely
with the public. They lack transparency in regard to the information they hold. This is a
formidable challenge to change the mindset of the bureaucracy.
The training programs to certain extent can be important in tackling the ingrained
mindset that may go back for several generations. For right to information law to be
effective, institutional supports both at national and local levels are required. Processing
of requests for information must be facilitated through effective decentralized structures
and mechanisms. The chaotic nature of the information and public records system, the
lack of proper archives and the lack of any consistent system for managing information
across the government are major institutional problems. Strengthening information and
records management systems is thus need of the hour to make the right to information
more meaningful.
CONCLUDING REMARKS
16. The Right to Information Act 2005 has ushered in a new era of transparency and
people's access to information in India. The implementation of the Act is gathering
momentum with each passing day. Government, civil societies and the media have
generally lent their might to the realization of citizens' right to information through the
revolutionary Act. But the exemptions contained in the Act need a fresh look.
Exemptions need to be kept at a minimum to ensure effectiveness of the Act. Again,
private enterprises cannot be allowed to remain out of the ambit of the Act as they are
handling public money and have been involved in scams that have a direct bearing on
public life. The long tradition of secrecy in our administrative culture influenced by the
colonial hangover and feudal mindset, to break these negative influences, a more
stringent penal provision is needed to ensure personal liability of the official concerned
in the case of colorable refusal of Information.
What is most important at present juncture is to give honest chance to the Act to operate
without negative stumbling blocks and bottlenecks. There is a special duty cast upon the
organizations of the civil society and pro bono publico to be vigilant so that the
objectives of the Act should not be frustrated by the bureaucratic manipulations. The
heart and soul of any beneficial legislative enactment always lie in its implementations.
The success of the Right to Information in India is an open challenge in our
administrative culture, public service ability of adjustment and public services
commitment to the public cause. Let us hope a positive response from our bureaucracy
in the successful operationalization of the Right to Information.
Thus, it can be rightly inferred that Right to Information act is an agent of good
governance. It makes administration more accountable to the people. It makes people
aware of administration and gives them an opportunity to take part in decision making
process. It promoted democratic ideology by promoting openness and transparency in
the administration. It reduces the chances of corruption and abuse of authority by
public servants. Since the act is prepared for people s interest, hence it success also
depends on how they exercise the act. Moreover, there is need active participation from
people, NGOs, civil society groups, coordination among RTI officials, integrity among
government departments and political will from government and elected leaders
[1] 1973 AIR 106, 1973 SCR (2) 757

[2] 1975 AIR 865, 1975 SCR (3) 333
[3]1995 AIR 1236, 1995 SCC (2) 161
[4]AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
[5][2009] INSC 387
[6]Right to Information Act, 2005

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ECSTASY

SAKSHARTA SADVIDYA EDUCATIONAL AND SOCIAL

AUGUST 2017 ISSUE I VOLUME I

August 2017 Issue 1 Volume 1

FOUNDER AND MANAGING DIRECTORS NOTE

ECSTASY is publication of SAKSHARTA SADVIDYA EDUCATIONAL AND SOCIAL

EDITOR IN CHIEFS NOTE

August 2017 Issue 1 Volume 1

SAKSHARTA SADVIDYA PUBLICATION

August 2017 Issue 1 Volume 1

2. Right To Information In India: An Overview .....................................13

3. India: The Youngest Hungry And Malnourished Country ............... 23

4. The Unconventional Procreation ...................................................... 35

5. Right To Education in India .............................................................. 44

6. Right To Information Act, 2005- Critical Study ............................... 54

7. Disentangling The Nuances Affixed To Disability ............................ 63

8. Trading Motherhood: Ethical And Legal Perspectives Of Surrogacy

9. An Insight Into The Practice Of Surrogacy ....................................... 94

10. Right To Information: What Is It? ...................................................107

August 2017 Issue 1 Volume 1

THE SURROGACY (REGULATION) BILL, 2016:

SAKSHI JAIN & ABHISHEK RAI

August 2017 Issue 1 Volume 1

SURROGACY: A WOMB FOR RENT?

THE NEED FOR LEGI SLA TION

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

AN INCOMP LETE PROPOSAL

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

PROPOSED MODEL: REGULATE NOT PROHIBIT

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

surrogacy can turn out to be exploitative in nature on account of underground

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

RIGHT TO INFORMATION IN INDIA: AN OVERVIEW

Right to information is envisaged in Article 19(1)(a) of Indian Constitution which plays a

1. In India, the concept of information dissemination regarding government

August 2017 Issue 1 Volume 1

Chandragupta Maurya Dynasty. The dissemination of information plays an

August 2017 Issue 1 Volume 1

and accountability of the government[7] is regulated with the help of freedom of

REPORT AND LEGISLATION

1. The 179th report on the PUBLIC INTEREST DISCLOSURE AND PROTECTION OF

HIGHLIGHTS OF THE R IGHT TO I NFORMATIO N

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

INFORMATION A ND PUB LI C AUTHORITY

August 2017 Issue 1 Volume 1

HOW TO GET THE INF ORMATION?

CONSTITU TIONAL PROT E CTION

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Affecting the foreign relations with foreign states

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1

INDIA: THE YOUNGEST HUNGRY AND MALNOURISHED COUNTRY

August 2017 Issue 1 Volume 1

INDIAN CONSTI TUION

August 2017 Issue 1 Volume 1

August 2017 Issue 1 Volume 1