Review: Delhi HC Rules That There is No Prohibition on ‘Posthumous Reproduction’ As Long As There is Clear Evidence of Consent From Sperm or Egg Donor.
In this edition of the Court Judgements review, we shall look into the Supreme Court’s judgement on Caste-wise segregation of prisoners; the Delhi High Court’s judgements on the Right to long-term opportunities, the Constitution of National Rare Diseases fund, and Posthumous reproduction in the absence of spouse; and Kerala High Court’s judgement on sexual intent under POCSO act.
Supreme Court: Rules Discriminating Among Prisoners Based on Caste or Its Proxies Violate Article 14
In a landmark verdict in Sukanya Shantha vs. Union of India, the Supreme Court of India held that the philosophy of ‘Separate but equal’ has no place in the Indian Constitution and Rules that differentiate between prisoners based on their caste, either explicitly or indirectly through caste-related indicators, violate Article 14 as they result in unjust classification and undermine the principle of substantive equality.
The three-bench comprising Chief Justice of India Dr. D.Y. Chandrachud, and Justices J.B. Pardiwala and Manoj Misra, was hearing a writ petition filed by Sukanya Shantha, a journalist, seeking directions for repeal of the caste-based discrimination and offending provisions in State prison manuals. The Counsel for the petitioners highlighted the issue of caste-based discrimination in Indian prisons, arguing that several State prison manuals allow unconstitutional practices violating Articles 14, 15, 17, 21, and 23 of the Indian Constitution. Disha Wadekar pointed out that caste discrimination in prisons persists, specifically in (i) the assignment of manual labour, (ii) segregation of barracks, and (iii) discriminatory provisions against prisoners from Denotified tribes and “habitual offenders.” She criticized the Model Prison Manual, 2016, for not addressing caste discrimination beyond kitchens, claiming it is not truly “model” in this regard.
The Counsel for the State submitted that the Ministry of Home Affairs created and distributed the Model Prison Manual, 2016, to all States and UTs, explicitly banning caste and religion-based discrimination. She cited a 26 February 2024 advisory urging states to eliminate discriminatory provisions from their prison manuals. She also noted that managing prisons falls under the States’ jurisdiction according to Entry 4, List II of the Seventh Schedule of the Constitution.
Observing that the Constitution aims to combat historical injustices and establish equality, preventing caste discrimination by both the State and private entities, the Apex court looked at the provisions of Article 14, whereby it was held that classification is permitted if there is reasonable nexus and intelligible differentia, non-arbitrary, and also has to take into account the substantive content of equality which mandates fair treatment of an individual.
Regarding non-discrimination under Article 15, the apex court noted that it has struck down discriminatory laws in several judgments, affirming the dignity and rights of historically excluded social groups. The Court also stressed the responsibility of State Governments to eliminate discrimination and enforce protections against discriminatory stereotypes.
The Court ruled that Article 17, included in the fundamental rights, aims to fulfil the constitutional mandate of equality and acts as a safeguard against discrimination. It abolishes “untouchability” and bans its practice in any form. Regarding Article 21, the Court emphasized that the right to live with dignity applies even to prisoners. Denying them dignity reflects colonial and pre-colonial practices, where oppressive systems were intended to dehumanize and degrade individuals under state control.
The Court looked at the provisions of prison manuals. It highlighted that RK Committee report in 1987, suggested that first, the purpose of classification in prisons must be two-fold: prison security/discipline as well as reformation of the prisoner; second, classification should be based on the individual needs of the prisoner based on a studied assessment of their personality. It is clear that caste was used as a factor of classification in prisons. Further, the petitioner’s counsel also brought notice of the Madras High Court judgement, which accepted the explanation of the State government that “the inmates belonging to different castes are housed in different blocks, in order to avoid any community clash, which is prevailing common in Tirunelveli and Tuticorin Districts”.
In conclusion, the Apex Court held that discipline cannot be secured at the altar of violation of fundamental rights and correctional needs of inmates, and that separate but equal philosophy has no place under the Indian Constitution.
Further, the classification on obsolete understanding of caste, based on pre-constitutional legislations and practices, lacks a rational nexus with the correctional objectives of classification in prisons.
Accordingly, the Apex Court directed all States and Union Territories to revise their Prison Manuals/Rules in accordance with this judgment within a period of three months, and the “caste” column and any references to caste in undertrial and/or convicts’ prisoners’ registers inside the prisons shall be deleted.
Delhi HC: Pending Criminal Cases do not automatically disqualify individuals from pursuing long-term opportunities abroad.
In Mr. Amardeep Singh Bedi vs. Union of India & Anr, the Delhi High Court held that the mere pendency of a criminal case does not automatically disqualify an individual from exercising his right to seek long-term opportunities abroad, and authorities cannot unjustly curtail the Petitioner’s right to apply for a long-term Visa.
The Single-judge bench comprising Justice Sanjeev Narula was hearing a petition about the refusal to issue a Police Clearance Certificate which is a crucial requirement for applying under the Start-up Visa Programme in Canada, where the Petitioner intends to set up a business venture.
The brief facts of the case are as follows: The Petitioner, an Indian citizen holding a valid passport from the Regional Passport Office in Delhi, is facing two FIRs registered in 2013 at P.S. Deshbandhu Gupta Road, Karol Bagh, New Delhi. These FIRs were filed based on complaints by the Employees Provident Fund Organization, alleging that while the Petitioner deducted Provident Fund contributions from employees’ wages, he did not deposit them as required by the Employees Provident Funds Act, 1952. Following these FIRs, a quasi-judicial inquiry led to an order in 2019, directing the Petitioner and the Principal Employer to pay the outstanding amount, which the Petitioner paid.
The Petitioner filed petitions to quash the FIRs, which are still pending. Despite this, his request for a Police Clearance Certificate (PCC), necessary for Canada’s Start-up Visa Programme, was denied by the Regional Passport Office. The Petitioner applied again in April and May 2024 and approached the Trial Court for directions to issue the PCC, but the request was denied due to jurisdictional limits. As a result, the Petitioner has filed this writ petition seeking the Court’s intervention under Article 226. The Petitioner’s counsel cited similar High Court rulings supporting the issuance of PCCs despite pending cases. The Court acknowledged that a PCC, classified as a miscellaneous service under the Passport Rules, 1980, verifies an individual’s criminal history for visa purposes. However, the Regional Passport Office can issue a PCC only after receiving a clear Police Verification Report.
The Court noted that the Petitioner has been granted anticipatory bail with the condition of cooperating with the investigation, and there are no restrictions on his travel. Other than the two FIRs, the Petitioner has no criminal history, and he has fulfilled his obligations under the EPF Act. He holds a valid passport and a Canadian visa but needs a PCC to meet the visa program’s requirements. The Court highlighted that simply having pending criminal cases does not disqualify an individual from seeking long-term opportunities abroad. The Ministry of External Affairs is responsible for providing accurate information but should not unjustly limit the Petitioner’s right to pursue a visa. The Court recognized the Petitioner’s right to work and conduct business abroad under Article 19(1)(g) and stated that the denial of a PCC based solely on pending FIRs without a conviction is an unreasonable restriction.
Accordingly, the petition is disposed of.
Kerala HC: Messaging or Chatting with a Child does not constitute an offence under Section 11(iv) of the POCSO Act unless Sexual Intent is evident
The Kerala High Court, in Praveen Prakash vs. State of Kerala, held that mere sending of messages or having chats with a child would not constitute an offence under Section 11(iv) punishable under Section 12 of the POCSO Act unless the messages or chats would prima facie depict the sexual intent.
The Single judge bench headed by Justice A. Badharudeen was hearing a petition seeking to quash an FIR and Final Report and all further proceedings against the petitioner in S.C.No.280/2022 on the files of the Additional Sessions Court, Kozhikode, arose out of crime No.691/2021 of Nadakavu Police Station, Kozhikode.
The brief facts of the case are as follows: the prosecution accuses the petitioner of committing offences under Section 354D of the Indian Penal Code (IPC) and Section 12 read with Section 11(iv) of the Protection of Children from Sexual Offences Act (POCSO Act). According to the petitioner’s counsel, based on the First Information Report and the victim’s additional statement, the only accusation is that the petitioner sent messages and made calls to the victim, aged 17 years, disturbing her. The counsel pointed out that the nature of these messages is not disclosed in the statements nor found in the prosecution’s records. Therefore, the counsel argues that the offences are not established, and the case should be quashed on these grounds. The counsel further mentioned that the victim has filed an affidavit stating that the matter has been settled, and no further action is needed. The counsel for the complainant also confirmed this settlement.
The Public Prosecutor, however, opposed the quashing of the proceedings, arguing that under the POCSO Act, offences cannot be settled based on the victim’s affidavit or their parents. The court acknowledged that settlement of POCSO offences is not legally permissible, as pointed out by the Public Prosecutor. Consequently, the case cannot be quashed on the grounds of settlement.
However, upon reviewing the First Information Report and the victim’s additional statement, it appears that the allegation is limited to the petitioner sending messages and making calls, causing disturbance to the victim. Section 11 of the POCSO Act pertains to sexual harassment, stating that a person commits sexual harassment when they, with sexual intent, engage in the acts listed in its subsections. The allegation here is under Section 11(iv) read with Section 12 of the POCSO Act, which specifies that a person commits sexual harassment if they, with sexual intent, repeatedly or persistently contact, follow, or watch a child through any means.
The court clarified that simply sending messages or engaging in chats does not automatically constitute an offence under Section 11(iv) of the PoCSO Act unless the content of the messages or chats prima facie indicates sexual intent. To establish the offence, the messages must be part of the prosecution’s records for examination. Without such evidence, it is unjustifiable to hold an accused criminally liable. Since the prosecution has not presented the messages or chats as evidence, it is incorrect to conclude that the offence under Section 11(iv) of the POCSO Act has been established prima facie.
Accordingly, the FIR and other proceedings against the petitioners are quashed.
Delhi HC: No prohibition on ‘Posthumous reproduction’ as long as there is clear evidence of consent from the sperm or egg donor.
In Gurvinder Singh & Anr. vs. GNCTD & Ors., the Delhi High Court held that under the prevailing Indian law, there is no prohibition against posthumous reproduction if the consent of the sperm owner or egg owner can be demonstrated.
The brief facts of the case are as follows: The Petitioners, Gurvinder Singh (Petitioner No. 1) and Harbir Kaur (Petitioner No. 2), have filed a petition under Article 226 of the Constitution of India, seeking the release of their late son Preet Inder Singh’s frozen semen sample, currently stored in the fertility lab of Sir Ganga Ram Hospital (Respondent No. 3). Their son was diagnosed with Non-Hodgkin’s Lymphoma, a type of cancer, on 22 June 2020, and was admitted to the hospital. Before beginning chemotherapy, he was advised to store his semen to mitigate potential infertility risks associated with the treatment. With his consent, the semen sample was cryopreserved on 27 June 2020 under registration no. 2726372. Unfortunately, he passed away at the age of 30 on 1 September 2020.
The Petitioners claim they approached the hospital on 21 December 2020 to request the release of the stored semen to continue their son’s legacy. However, the hospital declined. A Further affidavit by the hospital confirmed that the semen sample was preserved before the chemotherapy began, but due to the Assisted Reproductive Technology (Regulation) Act 2021 (ART Act), no statutory guidelines addressed the release or use of semen samples belonging to an unmarried person. The hospital argued that no current legislation, including the ART Act, permits the release of a deceased unmarried male’s semen to his parents or legal heirs. As a result, the hospital was unable to release the sample, despite it being cryopreserved since June 2020.
After hearing submissions from all parties, the court remarked that the present petition raises significant legal and ethical questions concerning posthumous reproduction. The Court faces a complex dilemma: its decision could enable the deceased’s parents to have a grandchild in the absence of their son. The current legal framework, consisting only of the Assisted Reproductive Technology (ART) Act, 2021, and the Surrogacy Regulation Act,2021, does not address the specific situation presented in this case, revealing a clear legal gap.
The Petitioners seek to use the sample to continue their son’s legacy through posthumous reproduction. This raises concerns about the legality and implications of such actions. While technology now allows for the use of semen samples to create progeny, issues like informed consent and the future welfare of the child must be considered in cases of posthumous or post-mortal reproduction. In such situations, the Court must exercise parens patriae jurisdiction, acting in the best interest of the unborn child. This requires an evaluation of various factors, including the family’s circumstances and the well-being of the potential child.
A sperm sample can be considered the “property” or “estate” of an individual, as it has the potential to be used for procreation, assist in fertility treatments, or be donated for conception purposes. Given this, the question arises whether the parents of the deceased are entitled to the release of the semen sample. Under the Hindu Succession Act, 1956, which applies to the Petitioners, parents are the Class I legal heirs of a deceased person if there is no spouse or children. Therefore, as the legal heirs and with the sperm sample constituting property, the Petitioners meet the conditions required for the release of the sample.
The Court believes that grandparents can effectively raise their grandchildren and integrate them into society. Therefore, under Indian law, there is no prohibition against posthumous reproduction if the sperm or egg owner’s consent can be demonstrated.
Accordingly, the present petition is allowed.
Delhi HC: Establish National Fund for Rare Diseases (NFRD) and mandate monthly progress reviews of the NFRD to ensure 100% fund utilization.
The Delhi High Court, in Master Arnesh Shaw vs. Union of India & Anr, directed the Union Government to establish the National Fund for Rare Diseases (‘NFRD’) for which a sum of Rs. 974 crores, as per the recommendation of the National Rare Diseases’ Committee (NRDC), and pending approval of the MoHFW, shall be allocated for the financial years 2024-25, 2025-26.
The single-judge bench headed by Justice Pratibha Singh was hearing a batch of petitions filed by the Petitioners, primarily children suffering from rare diseases. These cases have been under the Court’s consideration since 2020, with various directions issued to facilitate treatment and access to necessary medications. The Petitioners argue that the cost of medicines and therapies for these rare diseases is prohibitively high and have requested the Court to direct the Respondents—the Union of India, its Ministry of Health and Family Welfare, the All-India Institute of Medical Sciences (AIIMS), and the Government of the National Capital Territory of Delhi (GNCTD)—to provide continuous and free treatment.
The Court issued various directions to facilitate treatment, starting with a notice on 17 August 2020, requiring the Union of India to respond. On 12 January 2021, the Union stated that the previous 2017 policy was suspended, and a new Draft Policy for Rare Diseases, 2020, was being finalized with an expected completion by 31 March 2021, alongside a digital platform for crowdfunding.
The Court emphasized the urgency of finalizing the policy, underscoring the Fundamental Right to Health under Article 21 of the Constitution. It recognized the Union’s concerns about limited resources but encouraged filling the funding gap through donations. The Court directed the MoHFW to finalize the policy by 31 July 2021 and operationalize the digital platform for crowdfunding by 31 March 2021. It also recognized the Union of India’s concern about limited resources and other health priorities, acknowledging that fully funding all expensive treatments might not be possible. The Union suggested filling the funding gap through donations from individuals or corporate donors.
Given the need for a comprehensive solution, the Court, in its order dated 2 March 2021, formed a committee chaired by Dr. Renu Swarup, the then Secretary of the Department of Biotechnology (DBT), to evaluate these issues and provide a time-bound solution. The Committee was tasked with submitting a report addressing issues with rare diseases, and primarily about concrete proposals for crowdfunding the costs of treating children with rare diseases.
The Committee’s report recommended the establishment of a National Consortium for Research and Development on rare disease therapeutics, bringing together stakeholders such as clinicians, scientists, policymakers, and industry partners. Additionally, the Committee suggested exploring crowdfunding and alternative funding mechanisms and incentivizing pharmaceutical companies to produce drugs for rare diseases through production-linked incentives. On 23 March 2021, in light of the Committee’s report, the Court directed the finalization and notification of the National Policy for Rare Diseases. The National Policy for Rare Diseases (NPRD) 2021 was subsequently notified on 30 March 2021. On 15 May 2023, the Court considered the creation and functioning of the National Rare Diseases’ Committee (‘NRDC’) to implement the NPRD, 2021 effectively
Further, considering the issues involved in treating rare diseases, the court directed that NRDC will continue to function for a further period of 5 years. Additionally, the Union of India shall establish the National Fund for Rare Diseases (‘NFRD’) for which a sum of Rs. 974 crores, as per the recommendation of the NRDC, and pending approval of the MoHFW, shall be allocated for the financial years 2024-25, 2025-26. The Union of India shall mandate monthly progress reviews of the NFRD to ensure 100% fund utilization. This shall include a mandatory monthly meeting between the MoHFW, Centres of Excellences (CoEs), and NRDC to monitor the disbursement of funds and identify any delays.
Accordingly, all pending applications in the above petitions are also disposed of.