 Concept in India

The surrogacy laws in India have been under much legislative change since the last
decade or so in an effort to regulate a process that has drastically increased in popularity
for Indian national and international intended parents. As of December 2018, the
government has passed a law that completely changed the whole scope of commercial
and gestational surrogacy in India.

Today, there are a some important restrictions on surrogacy in India to be aware of:

 Commercial surrogacy is illegal.
 Altruistic surrogacy is available only for needy infertile Indian couples.
 Intended parents have to be married for five years or more and have a doctors’
certificate of their infertility.
 Women can be surrogates only once and need to be a close relative to the intended
parents, be married and already have a biological child.
 Homosexuals, single parents and live-in couples are to be prohibited from completing
any surrogacy in India.

 Rights Under Surrogacy

 Parental Rights: In most contracts of surrogacy, the woman who carries the baby
relinquishes all parental rights to the infant after it is born. It means that the man who
has provided the sperm for fertilization retains the sole custody of child and his wife
can adopt. He is also listed as the child's father in the court orders obtained prior to
the delivery of the child.

 Medical Expenses: The surrogate mother has the right to have all her medical and
other expenses covered as long as they relate to her pregnancy or surrogacy.
  Counseling: The surrogate mother has the full right to choose professional counseling
from the early stages of discussing surrogacy to throughout the pregnancy period and
beyond.

 Recruiting Desperate Mothers

India has always received severe criticism when discussed on the topic of exploitation of
women in surrogacy. These are women who face extreme poverty who are desperate
enough to carry someone else’s child in their in exchange of some cash. This desperation
becomes the source of exploitation. Initially, the conditions were very poor and they
faced many problems to such an extent that they felt helpless. Earlier, the surrogate
mothers were not even given a copy of the contract, and they were not in any position to
ask any questions. Medical professionals were free and could do anything with their
bodies. Abortions were being banned even if they wanted it. But selective abortions were
done to choose the sex of the child. Whenever the labor started, the woman was taken
directly to the delivery room to have a cesarean. When during the process of pregnancy if
there was a miscarriage, the woman was not paid at all. They did not even have
psychological or life insurance. Some of them were in the situation where they were not
physically fit to be surrogate mothers, not strong enough; their hemoglobin was too low
for an instance. The doctors would pump medicine so they would make it look it is
normal.

 Abandonment of Children

Another very disturbing side of this whole concept of surrogacy is the abandoning of the
newly born child. There have been many instances where the natural parents left
abandoned the child and left. There are many reasons for this like the sex of the child,
birth of twins, child born with some disease and others. In one such case of New Delhi, an
Indian-born Australian couple travelled to New Delhi to see their twin kids, who had been
carried by a surrogate mother. They left for Sydney after a few weeks but with just one of
the twins, a girl. What happened to the other one, the boy? His birth had been registered
but the couple who commissioned him opted to leave him behind in India. These type of
actions need some serious concern and severe punishments, so as to protects the innocent
souls.

1. Sharwan Chhajer owned a Chevrolet Cruze car. It was insured with Reliance General
Insurance under a policy valid from October 8, 2010 to October 7, 2011. On
December 29, 2010, Chhajer entrusted the vehicle to Regent Automobiles for
servicing, and it was to be returned on January 3, 2011.

2. On January 1, 2011, the workshop informed Chhajer that his car had been stolen for
which a police complaint had been lodged on December 31. The insurance company
was also informed of the theft on the same date. Chhajer was out of station, but on his
return he lodged an FIR.
3. Chhajer also lodged a claim with the insurance company, but it was repudiated on the
ground that there was a breach of the policy terms and conditions since the vehicle
had been left unattended and its ignition key left in a drawer at the workshop.
4. Chhajer filed a complaint before the district forum seeking a direction to the insurance
company to settle his claim. The service centre was also joined as a party since the
insurance company blamed it for the loss. After considering the arguments, the forum
directed the insurance company to settle the claim. This order was challenged before
the Haryana State Commission, which dismissed the appeal. The insurance company
has now approached the national commission.
 The State Commission passes an order dated 15.01.2016 regarding the dismissal of the
appeal filed by the Reliance Insurance Company Ltd.

The respondent had entrusted the car to Regent Automobiles Private Ltd. for the
purpose of servicing the same. He had not anticipated that the vehicle would be stolen
from the said workshop. Therefore, it cannot be said that the insured had failed to take
reasonable steps to safeguard the insured.

The contention of the learned counsel for the petitioner is that the employees of the
workshop were negligent in handling the vehicle since the key was left in the drawer
of a counter at the workshop and it was accessible to outsiders from that counter. Even
the employees of the workshop cannot be said to be negligent in handling the vehicle
since they had not anticipated or apprehended that someone will come to the
workshop, open the drawer of the counter, remove the key and then take away the
vehicle. Therefore, the condition No. 4 of the insurance policy as reproduced was not
clearly attracted.

Clause No.2 of the ‘General Exception’ stated by the Reliance General Insurance
Company Ltd. in the insurance policy makes the Regent Automobiles Private Ltd.
liable for the loss to the defendant wherein the counsel found no grounds for such
liability.

Chapter – 1

Existing reservation policies were highly unpopular among the so-called middle classes, but
of late dominant groups like Jats, Patels and Marathas had also begun demanding reservation
for themselves. The upper caste groups launched violent protests long back demanding
reservation quotas on the basis of individuals’ economic status. This is also a matter of
concern that the term ‘social backwardness’ is not correctly understood by many people in
India. Usually, socially backward communities are linked to a traditional occupation, which
is considered to be inferior or “lowly” and is sometimes even vilified. We never find a
Brahmin doing manual scavenging or cleaning toilets in households. If a caste or community
is not established to be socially backward, the question of reservation cannot arise.

Not an Alternative

Reservation based on economic status can never be an alternative to caste-based reservation,

because the poverty prevailing among the Scheduled Castes has its genesis in the social-
religious deprivations of the caste system. Nor can the ‘creamy layer’ among SC/ ST/ OBC
communities be excluded from reservation policies, because they are entitled to protection
against discrimination based on their group identity.

As far as economically weak SCs and STs are concerned, they need both financial support as
well as reservation to ensure fair access to education and employment. The solution to every
problem is to strike it at its roots – but poverty is an effect, having its roots in the caste
system. The economic status of individuals is subject to change and most importantly, in
caste-ridden India, infested with corruption, it will be a cakewalk for the upper castes to
purchase a fake ‘Income Certificate’ from the authorities. The economic criterion simply
allows upper caste groups to monopolise state power, which is something that the reservation
scheme was meant to counter.1

Disproportionate Ratio

SCs form around 16.2% of India’s population, while STs form 8.2% of it. Although there’s
no accurate data available on the population of OBCs, a survey by the National Sample
Survey Organisation in 2006 had put the OBC population in the country at 40.94%.

So, going by the available statistical data, the SC/ ST/ OBC communities constitute more
than 65% of India’s population. Given the Supreme-Court mandated ceiling on reservation at
50%, this means that students belonging to communities which make up 65% of the country’s
population are competing for just 49.5% of seats at the IITs, for example. And those

1
Vivashwan Singh, The Problem with Reservation for Economically Backward Upper Castes, The Citizen, (Apr.
5, 2020, 5:34 PM), https://www.thecitizen.in/index.php/en/NewsDetail/index/4/16030/The-Problem-with-
Reservation-for-Economically-Backward-Upper-Castes.
accounting for 35% of the population are competing in 50.5% seats. Even in the current
scenario, the upper castes have the privilege of not facing stiff competition.

Obscure Criteria

The government’s proposal is to provide 10% EWS reservation for jobs and education if the
family (assuming nuclear family) earns less than Rs 8 lakh a year (or those who own
farmland less than five acres or a house less than 1,000 sq feet). Are these disjunctive? The
Bill doesn’t deal with this. Arun Jaitley’s budget speech said tax returns of above Rs 5 lakh
were filed by only 7.6 m people. Seventy per cent of farmers own less than one hectare. A
conservative estimate of 190 million earn less than Rs 5 lakh.

The criteria for claiming such benefits are also nebulous. For education, states will decide.
For Centre and state public employment the respective governments will. One can only recall
the Mandal stir over central job quotas. These new quotas will be in addition to minority
reservations.The creamy layer, also fundamental to equality, excludes those who have done
well, usually Rs 8-12 lakh as determined by states locally. Now, everyone above Rs 8 lakh
will be creamy layer.2

Legal Drawback

After the SC refused to recognise exclusive economic criterion, many high courts reiterated
this view. Haryana’s 10% reservation for EBCs was stayed in 2016. In 2015, Rajasthan HC
struck down 14% reservation for EBCs. In Gujarat, 10% EBC reservation to meet the Patel
demand for those earning less than Rs 6 lakh was struck down. In 2017, Kerala notified 10%
EBCs in Devaswom boards. In 1975, the SC had struck down general reservation for rural
areas in UP saying, “Poverty in rural areas cannot be a ground for reservation.” In 1980, it
ruled that JK cannot use rectification of regional imbalances as a ground for reservation.

2
Rajeev Dhavan, View: Reservation for economically weaker can’t stand up in court, The Economic Times,
(Apr. 5, 2020, 6:34 PM), https://economictimes.indiatimes.com/news/politics-and-nation/view-reservation-
for-economically-weaker-cant-stand-up-in-court/articleshow/67447383.cms?from=mdr.
During modern era in 1932 the depressed class led by Dr. B.R Ambedkar demanded for
separate electorate like that of Muslim and other minorities. The Prime Minster of Britain
Ramsay Macdonald also conceded the award to the depressed classes. But to save the life of
M.K Gandhi who had begun a fast unto death at the yeravadh prison of Poona, against the
communal award to depressed classes Dr. B.R Ambedkar and other depressed class leaders
agreed to modify the award. As a result Poona pact was signed. Under this agreement instead
of separate electorates reservation of 78 seats was provided. Before independence the
reservation systems favoring certain castes and other communities existed before
independence in several areas of British India.

Demands for various forms of positive discrimination had been made for example in 1882
and 1891. Chatrapati Shahu the king of princely state of Kolhapur introduced reservation in
favour of non Brahmin and backward classes much of which came into force in 1902. He
provided free education to everyone and opened several Hostels to make it easier for them to
receive it. He also tried to ensure that people thus educated were suitably employed and he
appealed both for a class free India and the abolition of untouchability. His 1902 measures
created 50 % of reservation for backward communities. The British government introduced
elements of reservation in the Government of Indian Council Act of 1909 and there were
many other measures put in place prior to independence.

A significant one emerged from the Round table Conference of June 1932. According to the
Communal award separate representation was to be provided for Muslims, Sikhs, Indian
Christians, Anglo Indians and Europeans. The depressed classes were assigned a number of
seats to be filled by election from constituencies in which only they could vote although they
could also vote in other seats. The proposal was controversial M.K Gandhi fasted in protest
against it but many among the depressed classes including their leader Dr. B.R Ambedkar
favored it. After negotiations Gandhi reached an agreement with Dr. B.R Ambedkar to have a
single Hindu electorate with Dalits having seats reserved within it. Electorates for other
religions such as Islam and Sikhism remained separate.

This becomes known as the Poona Pact. After the independence of India in 1947 there were
some major changes in favor of the scheduled Castes, scheduled Tribes and Other Backward
Classes. A common form of caste discrimination in India has been the practice of
untochability. SCs were the primary targets of the practice which was outlawed by the new
Constitution of India. In 1954 the Ministry of education suggested that 20 percent of places
should be reserved for the SC and STs in educational institutions with a provision to relax
minimum qualifying markes for admission by 5 percent wherever required. In 1982 it was
specified that 15 percent and 7.5 percent of vacancies in public sector and government aided
educational institutes should be reserved for the SC and ST candidates respectively. A
significant change began in 1978 when the Mandal Commission was established to assess the
situation of the socially and educationally backward classes.

The commission did not have exact population figures for the OBCs and so used data from
the 1931 census thus estimating the group’s population at 52 percent. In 1980 the
commission’s report recommended that a reserved quota for OBCs of 27 percent should
apply in respect of services and public sector bodies operated by the Union Government. It
called for a similar change to admission to institutes of higher education except where states
already had more generous requirements. It was not until the 1990 that the recommendations
were implemented in Union Government jobs.