Tag: parliament of india

Should commercial surrogacy be banned in India?

Commercial surrogacy is the process by which an individual or couple pays a fee to a woman in exchange for her carrying and delivering a baby. At birth the child, homo-sexual couples, and single people who wish to be parents are the most common types of people who seek surrogate mothers.

Commercial surrogacy has been legal in India from 2002 onwards but due to unethical practices, a bill has been approved by the Union Cabinet in August 2016. This one lapsed when Parliament adjourned without taking the measure for a vote.

The new proposal came in 2019 that is to ban commercial surrogacy. The Indian minister of health has called the 2019 bill a “need of the hour” citing a rough estimate that between 2000 to 3000 unregulated clinics currently operate in the country. Under the new law anyone who performs or promotes this would be punished with up to 10 year of imprisonment and a fine up to one million rupees. The surrogacy bill’s provision restricting surrogacy to married heterosexual couples within strict age ranges also discriminates against members of L G B T community, older couples and unmarried people who might seek to have a child. The bill goes against the principles of equality provided under Article 14 of the Indian constitution.

Regulation, not ban, is needed. The commercial surrogacy in India needs a regulation and stricter rules that could ensure good care and pay to the woman alone and not agents or others. Good clinical facilities for the surrogate mother and a healthy environment where she could stay safely before and after delivery could lessen exploitation. There is no provision in the law about the custody of the child if the couple later refuse to accept it if the child is mentally challenged or born with a defect. People who hire surrogates have a need to do so due to medical reasons. It is not their choice. Regulation on this practice is very much needed and must be done to close loopholes due to which exploitation of surrogate mothers is taking place.

Indian society is yet to progress so much as to accept surrogate motherhood. The woman who rents her womb even if for the cause of humanity towards an unfortunate couple will never be accepted in society when she goes back to her normal life. People will look down on her and she may probably not be able to find a husband, if she was unmarried at the time of surrogacy. We need to be broad-minded and accept these women and respect their choice of renting their wombs.

Giving women a safe and free environment for surrogacy can help in curbing the evils attached and the industry could do well along with giving good money to such poor women so that they can make their lives better as well as give prosperity to their families.

Thank you for reading. Have a nice day!

SEPARATION OF POWERS

INTRODUCTION

As said by Aristotle, “All constitutions have three elements, concerning which the good lawgiver has to regard what is expedient for each constitution. When they are well-ordered, the constitution is well-ordered, and as they differ from one another, constitutions differ. There is one element which deliberates about public affairs; secondly that concerned with the magistrates- the question being, what they should be, over what they should exercise authority, and what should be the mode of electing to them; and thirdly that which has judicial power.”[1]

Separation of power basically means distribution of the powers and authority as well as responsibilities and duties amongst the three pillars of our nation that is, the executive, the legislature and the judiciary. It deals with the function of each organ of the state and its inference on other organ. India is a quasi-federal country.

MEANING

The French thinker Montesquieu stated, early in eighteenth century, that moving power in the hands of only one organ or group of the government is tyrannical. In order to address this problem, he felt that the solution would be to place power in three separate three arms of government, namely the legislature, the executive and the judiciary. This would make it possible for each body to be autonomous of the other in such a way that there can be no encroachment or overlapping of powers and that there could be harmony that would help the smooth functioning of the government.

These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals.”

Understanding that the function of a government is to safeguard individual rights but recognizing that governments have traditionally been the principal violators of such rights, a number of measures to reduce that likelihood have been developed. One such measure is of the separation of powers.

The premise behind Separation of Powers is that if a single person or community has a considerable amount of control, they can become harmful to the general public. Separation of powers is a way to minimize the momentum of power in the hands of any group, making abuse and arbitrariness more difficult to be brought into practice. It is generally accepted that there is a tripartite structure of government authority and power:

(i) Legislature (ii) executive (iii) judiciary.

As per the theory of the separation of powers these three powers and functions of the government must always be kept separate in a free democracy, exercised by separate Government organs.

DOCTRINE OF SEPARATION OF POWERS

As explained by Wade and Philips, The Doctrine of Separation of Powers indicates 3 features to showcase the Powers of Government:

I. The same person should not form part of more than one of the three organs (i.e. Executive, Legislature and Judiciary) of the Government. For example, ministers should not sit in Parliament.

II. One organ of the Government should not control or interfere with any other organ of the Government in carrying out its functions. For example, judiciary should not be independent of executive.

III. One organ of the Government should not exercise the functions dispensed to any other organ. For example, ministers cannot be the part of law making body.

Separation of powers means delegation of powers for certain specified functions of the government. All the powers of the government have been conceived as falling within one or another of given three modules-

(1) The enactment of creation of laws

(2) The interpretation of the laws made

(3) The enforcement of those laws

Namely, legislative, judicial and executive. Government has been reckoned to be made up of tripartite structure having for their functions and such classification is known as classical division.

IMPORTANCE

As it is a very generally accepted fact that whenever a huge amount of power is given in the hand of any administering authority there are higher probabilities of corruption, maladministration and misuse of power. This doctrine aids in preventing the abuse of power.  This doctrine shields the individual from the arbitrary rule. The government is the violator and also safeguards individual liberty.

Basically, the importance can be summarized in the following points:

  • Terminating the authoritarianism, it safeguards the liberty of an individual.
  • It not only protects the liberty of the individual but also preserves the efficiency of the administration.
  • Focus on the requirement of independence of the judiciary
  • Prevent the legislature from enacting an arbitrary rule.

THE TRIPARTITE STRUCTURE

Model is divided into three branches of state. All have separate powers and responsibilities but are inter dependent on each other. Let’s know about these branches in brief.

Legislature:

It is the law making body of the country.

It is the basis for the functioning of the other two organs, the executive and the judiciary.

It is also sometimes accorded the first place among the three organs because until and unless laws are enacted, there can be no implementation and application of laws.

Executive:

The executive is the organ that implements the laws enacted by the legislature and enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form part of the executive.

Judiciary:

The judiciary is that branch of the government that interprets law, settles disputes and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution.

It comprises of the Supreme Court, the High Courts, District and other subordinate courts.

INDIAN CONSTITUTION AND SEPARATION OF POWERS

The doctrine of separation of powers is not accorded a constitutional status. Apart from the Directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers. In India we have parliamentary form of government where executive is very important part of legislature. We don’t follow this doctrine with rigidity but then the essential functions have been sufficiently differentiated and it is an assumption that one organ of the state will not perform the functions of another organ of the state. Every organ of the state has to perform the essential functions, i.e. the legislature must legislate, the executive must execute and the judiciary must adjudicate.

CONCLUSION

There is no clear difference between executive and legislative forms of government: the legislation that is enacted must always be enforced and executed, and a great deal of executive intervention involves new legislation. Although, judiciary is an independent body.

As such, division can be said to be an artificial division. This is borne out by the fact that there is presently no constitutional system with a comprehensive separation of powers where there is a distribution of the three functions between three independent bodies without overlapping or cross-coordination.

[1]Aristotle- Politics- BOOK 4- Part XIV

Lok Sabha passes the Special Protection Group (Amendment) Bill, 2019

The Lok Sabha passed the Special Protection Group (Amendment) Bill, 2019, after negating all the proposed amendments today.

Initiating the debate on the Special Protection Group (Amendment) Bill, 2019 today in the Lok Sabha, Union Home Minister Shri Amit Shah said that SPG shall provide proximate security to the Prime Minister and his immediate family members residing with him at his official residence. The Bill says that family members of a former Prime Minister who reside with him at his allotted accommodation will get security cover of the SPG only for five years, from the date he/she ceases to hold the office of Prime Minister.

Special Protection Group (Amendment) Bill, 2019
Special Protection Group (Amendment) Bill, 2019

Replying to the debate, the Home Minister noted that there is a perception in the country that the amendment in SPG Act is only for the purpose to remove the SPG security cover for the Gandhi family. Contrary to this, the change of the security cover has been done only on the basis of yearly security threat perception review by the government. Such a security review has been a part of the original act, he added.

Shri Shah emphasized that the security cover of the Gandhi family has not been reduced or taken away, rather it has just been changed from SPG cover to Z Plus security cover by the CRPF, along with ASL and ambulance, across the country. The level of the security cover has been maintained and not even one security personnel has been reduced. He also said that the SPG security cover is being formed by the same security personnel who comprise of the Z plus security cover.

Shri Shah informed that based on the recommendations of the Birbal Nath committee report, SPG came into existence in 1985. From 1985 to 1988, SPG was governed by an Executive Order and only in 1988 the SPG Act came into existence to provide security to the Prime Minister and his/her family.

Shri Shah said that the SPG Act was enacted in 1988 to provide for the constitution and regulation of the SPG as an armed force to provide proximate security to the Prime Minister and his/her immediate family members. Amendments to the Act were effected in 1991, 1994, 1999 and 2003 and today a further amendment is being brought to revert back to the original spirit of the Act.

Shri Shah stated that the previous amendments to the 1988 Act have been carried out each time to provide security cover only to one family. According to the original Act, SPG is a specialised force to provide comprehensive security cover to the Prime Minister of the country and not a particular family. SPG doesn’t only provide physical security, but it takes care about protection of Prime Minister’s office, his/her communication systems, foreign tours and issues pertaining to his/her health and well being.

Dismissing the charge of vindictiveness for removal of SPG cover of Gandhi family, Shri Shah stated that such security cover reviews have happened in the past with respect to ex prime ministers, including Shri P.V. Narasimha Rao, Shri I.K. Gujaral, Shri Chandra Shekhar, Shri H.D. Deve Gowda and Dr. Manmohan Singh, but there was no such opposition ever when SPG cover was withdrawn. The Home Minister said that the Government is committed to secure each citizen of the country.

Shri Shah further stated that the Modi government never takes decision of providing security cover on the basis of vendetta politics but on scientific threat analysis for a particular individual. He also said that security cover has been provided to members of all political parties based on individual case based threat analysis. Security cover must not be treated as a status symbol by individuals. The security cover meant specifically for the Prime Minister, must not be enjoyed by any other individual. Moreover, the three protectees of the Gandhi family who have been specially mentioned here, have been on many trips without informing SPG, the Home Minister pointed out.

Talking about the rationale behind bringing the amendment, Shri Shah informed the House that in the Act, there is no cut off period for providing the SPG protection to former Prime Ministers or members of their immediate families. Thus, the number of individuals to be provided SPG cover can potentially become quite large. In such a scenario, there can be severe constraint on the resources, training and related infrastructure of SPG. This can also impact the effectiveness of SPG in providing adequate cover to the principle protectee, the Prime Minister in office.

Shri Shah said that the main aim of bringing this amendment is to make SPG more efficient. This would ensure that no omission happens in carrying out its core mandate, as the security of the Prime Minister, as Head of the Government, is of paramount importance for Government, governance and national security. The Bill says that when the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of his or her immediate family.

 

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