Punjab-Haryana High Court
Shihabeldin vs Union Of India And Others on 23 April, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-15490-2013 (O&M)
Date of decision:-23.04.2014
Shihabeldin
...Petitioner
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Anil Malhotra, Advocate,
and Mr. Gaurav Mohunta, Advocate,
for the petitioner.
Mr. Karminder Singh, Advocate,
for respondents No. 1 to 3.
Mr. Brijeshwar Singh Kanwar, Senior Standing Counsel,
for respondents No. 4 and 5.
Mr. O.S. Batalvi, Special Senior Standing Counsel,
with Mr. Rishi Kant, Advocate,
for respondents No. 6 and 7.
****
SANJAY KISHAN KAUL, C.J. (ORAL)
CM-4830-2014 Leave is granted to place on record the affidavit of the Secretary, Ministry of Law & Justice and the application is allowed. CM-4925-2014 Leave is granted to place on record the affidavit of Mr. Vikas Srivastava, Under Secretary (Foreigners), Ministry of Home Affairs in pursuance to our last order dated 02.04.2014 and the application is allowed.
CM-4867-2014 For the reasons set out in the affidavits, exemption is granted from personal appearance for today qua the officers concerned and the affidavit Sharma Amodh 2014.04.24 15:07 I attest to the accuracy and integrity of this document chandigarh CWP-15490-2013 (O&M) 2 sought to be placed on record on behalf of respondents No. 6 and 7 is taken on record and the application stands disposed of. CWP-15490-2013 The affidavit filed by Mr. Vikas Srivastava is not wholly satisfactory to the extent that once the example of the judgement of the Gujarat High Court had been given to buttress the plea of complexities of issue involved, it was his bounden duty to have also referred to the fact of the matter pending before the Hon'ble Supreme Court and that too on a Special Leave Petition filed by the Union of India. Be that as it may, in view of the regret and apology tendered, we would not like to proceed further in this matter.
The affidavit filed by the Secretary, Department of Legal Affairs, Ministry of Law & Justice shows that action has been taken and the final view is that the concerned Administrative Ministry would be the Ministry of Health and Family Welfare which would lead the matter in the Court.
The detailed affidavit of Mr. S.K. Rao, Joint Secretary, Department of Health Research, Ministry of Health & Family Welfare has been filed. It has been explained that various versions of the Bill are put in public domain for opinions; once the opinions are obtained and the inter-ministerial discussions take place resulting in a Cabinet note being prepared, the final version of the Bill being an annexure to the Cabinet note also becomes top secret. This is stated to be on the basis of a hand book on writing Cabinet notes of the Government of India, Cabinet Secretariat. We are not at the moment commenting on the advisibility of such a process whereby even the proposed final version of the Bill becomes top secret because it is not really the issue before us. The relevant fact, however, is that the final draft form of legislation is now before the Cabinet. The Cabinet is yet to deliberate on it. Sharma Amodh 2014.04.24 15:07 I attest to the accuracy and integrity of this document chandigarh CWP-15490-2013 (O&M) 3 The stand taken before us on behalf of the Health Ministry is that in the interregnum period the concerned Ministry would stand by the guidelines issued by the Ministry of Home Affairs under Section 3 of the Foreigners Act, 1946.
We are, thus, confronted with a situation where undoubtedly there is a complex issue at hand of surrogacy qua single parents who are foreign citizens. It cannot be lost site of that there would have to be checks and balances in such a situation. As to what would be the final version of the Act and what are the checks and balances would in turn depend on the final proposal of the Cabinet which would in turn have to be placed before the House and only thereafter would it be known. What had persuaded us to intervene in this matter was the plea of the learned counsel for the petitioner that earlier the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (Annexure P-4) were in force. There appeared to be some conflict between the guidelines issued under the Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the guidelines of the ICMR. However, the conflict for the interim period is resolved by all the respondents being in unison that in the interregnum period the arrangement which would prevail would not permit the single parent foreign citizen surrogacy. The final version would only emerge as stated aforesaid after the Parliament debates on the law.
In view of the aforesaid position, we are not inclined to issue a writ in favour of the petitioner, a foreign citizen, who seeks single parent surrogacy as the law in this behalf itself is sought to be enacted and it is at a final stage. This is not a matter where the stated vacuum can be filled in by the Court in the interregnum period, moreso when there is now a unanimous Sharma Amodh 2014.04.24 15:07 I attest to the accuracy and integrity of this document chandigarh CWP-15490-2013 (O&M) 4 view of the different Ministries of the Government of India as to what should prevail as an interim arrangement.
The petition is accordingly disposed of with a hope that the final view would be available with the constitution of the new House which would have the benefit of debating the matters pertaining to the law post the Cabinet having scrutinized the same.
The draft Bill, 2013 produced in a sealed cover has been returned to the Joint Secretary, Department of Health Research, Ministry of Health & Family Welfare.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE 23.04.2014 Amodh Sharma Amodh 2014.04.24 15:07 I attest to the accuracy and integrity of this document chandigarh