Ending commercial surrogacy will not be possible without regulating ART clinics
It is a truth, universally acknowledged, that surrogacy needs to be regulated by law. There is no argument about whether an issue such as surrogacy fraught with bioethical issues aplenty requires regulation: it does. The Surrogacy (Regulation) Bill, 2019, should have come a long time ago. Regulations in the past in the area of child adoption and transplantation of human organs have, historically, borne fruit, effectively putting an end to rampant commercial transactions, and providing a structure by which any excursions outside of the law may be shut down. Flagrant violations of human rights have been witnessed repeatedly in the ‘baby-making factory’ in India, the underprivileged woman often in the cross hairs, and at the bottom of the pile.
The plethora of unregulated assisted reproductive techniques (ART) clinics that mushroomed, coinciding with India becoming a global health-care destination, ensured that there was a good volume of traffic toward the country, besides growing domestic demand for surrogacy services. In this context, there is expectation that the Surrogacy Bill will regulate commercial surrogacy, while allowing an altruistic form of it to continue, by putting in place strict supervisory and regulatory frameworks. The question here is whether the Bill, recently passed by the Lok Sabha, will serve the wholesome purpose of regulating the vastly complex area of surrogacy, while sensitively balancing the needs of ‘intending parents’ and surrogates.
The Bill mandates payment to the surrogate mother, who can only be a ‘close relative’, to the extent of covering medical expenses and providing insurance during the term of the pregnancy. It has specified that ‘exploiting the surrogate mother’ would attract punishment of imprisonment of up to 10 years and a fine of up to â‚¹10 lakh; advertising for surrogacy and selling/importing human embryos or gametes for surrogacy also attract the same punishment. It has mandated registration of surrogacy clinics, and put in place regulatory boards to ensure compliance with the law. But its critics have panned it for the lack of specifics in definitions (the generalized ‘close relative’ criterion for surrogates); the exclusion of various groups of people from access to surrogacy (only married couples of a certain age group are eligible); and primarily, of trying to put the ‘cart before the horse’ by seeking to regulate surrogacy before setting the ART house in order. The capacity of the state to end commercial surrogacy may itself be compromised if it does not first set up a regulatory framework for ART clinics, which provide the basic technology for surrogacy. Else, the government is merely setting itself up to implement a law that may spectacularly fail. That would be a tragedy, because this is one law that is pregnant with the possibility of truly revolutionizing the surrogacy sector, cleaning it up, and fulfilling the dreams of people who are themselves unable to bear children.
In the face of a massive security build-up in Kashmir at the close of July, a seasoned journalist conjectured, “This is just the right time when militants and their masters in Rawalpindi could do with a terror attack in Kashmir.” Such were the arguments trotted out by experienced media persons in seeking to account for the extraordinary lock down that had descended on Kashmir throwing its citizens into a panic, with a run on banks, petrol pumps and stores across the Valley. I began receiving phone calls from friends and associates as far as Gopalpora, Mattan and Doabgah and Sopore asking what was happening. My former colleagues in government, some in key positions, had no inkling and made dire predictions.
And then we had the statement of the Home Minister, Amit Shah, in the Rajya Sabha on the morning of Monday August 5, 2019. Under Article 370 of the Constitution of India, the State of Jammu and Kashmir had its own Constitution and its own laws, with the President of India empowered to decide which provisions of the Indian Constitution would be applicable within the State, but only with the assent of the State.
In one fell swoop, the President, Ram Nath Kovind, declared that all provisions of the Indian Constitution shall now apply to the State, thus nullifying Article 370 with the use of that same article thereby ending the special autonomous status of Jammu and Kashmir that it had enjoyed since the promulgation of India’s Constitution. The Jammu and Kashmir Reorganisation Bill 2019 further bifurcates the State of Jammu and Kashmir into two Union Territories, both with a Muslim majority namely: the Union Territory (UT) of J&K and the Union Territory of Ladakh. While the UT of J&K will have a legislature, the Union Territory of Ladakh will be without one. Although in the past UTs have been upgraded to States, never has a State been downgraded, thus bringing to a consummation the process initiated with the accession, although hardly in the manner dreamt.
Article 370 has governed the accession and relationship of the princely State of Jammu and Kashmir with India under the Indian Constitution. As originally envisaged, Article 370 formed the basis of Kashmir’s special and autonomous status. Mainstream political leaders such as Farooq Abdullah, Mehbooba Mufti and others have warned that revoking Article 370 will mean a break in the relationship between the State and India.
A devout Muslim, the then unchallenged Kashmiri leader, Sheikh Abdullah (Baba-i-Qaum to his people), ‘faced a clear choice in 1947; he could join a Muslim nation or he could join a secular state, where Kashmiris would be free to live a life of their own choosing. In making his choice, India’s Prime Minister Jawaharlal Nehru was the Sheikh’s reassurance. Of Kashmiri descent, a heritage that Nehru cherished, Nehru had an inclusive vision of what India was to be’. By contrast, the leader of the newly emerging nation of Muslims, Mohammed Ali Jinnah, was a cold and distant figure, a modernist who could excite awe but little affection. At the time of accession, the portion of the State where Jinnah’s Muslim League had its support lay not in the Kashmir Valley but across the Pir Panjal, in Mirpur and the old Poonch principality of the feudal State of Jammu and Kashmir, an area a large part of which Pakistan occupies today and calls ‘Azad Kashmir’.
It is important to remember that the Kashmir freedom movement was a movement to rid Kashmir of despotism, working in tandem with the national movement but not part of it. This was primarily a Kashmiri movement drawing almost universal Kashmiri support in a Muslim majority State where the Kashmiris were the largest single ethnic group. Despite efforts by Maharajah Hari Singh’s Prime Minister Ram Chandra Kak in eliciting the Sheikh’s support for Independence, the latter stood steadfast in his demand for an end to the monarchy.
Visiting Srinagar on June 18- 23, India’s Viceroy Lord Louis Mountbatten urged Hari Singh not to make a declaration of independence. He conveyed Sardar Vallabhbhai Patel’s message that ‘the States Department was prepared to give an assurance that, if Kashmir went to Pakistan, this would not be regarded as unfriendly by Government of India’.
It was only when Jammu and Kashmir forces faced an uprising by the Poonch troops of the British Indian Army’s decommissioned Sixth Punjab Regiment (in the border district of Poonch), and then a military rout by invading frontier tribesmen in the State’s border town of Domel on October 22, 1947 that the Maharaja turned in desperation to India.
Pakistan’s lost cause
According to the 1941 Census, 77.11% of the population of Jammu and Kashmir was Muslim, 20.12% Hindu and 1.64% Sikh. Pakistan has argued that the logic of Partition meant that the State had to be a part of Pakistan. But by recourse to an invasion by Pakistan’s frontier tribesmen and the support of the invasion by Pakistan’s armed forces, Pakistan virtually lost its case, certainly in the eyes of Kashmiris. India’s case rested on the public will. Indeed, Sheikh Abdullah spoke for Kashmir at the United Nations in February 1948 as part of a delegation led by N. Gopalaswami Ayyangar firmly declaring, “We shall prefer death rather than join Pakistan. We shall have nothing to do with such a country.” And it was this freedom within the Indian Union that Abdullah sought through the constitutional guarantee of Article 370, which read with Article 369, provided temporary powers to Parliament to make laws for J&K.
Under sub-section 3 of this Article, the President of India can revoke Article 370 only on advice from the Constituent Assembly of Jammu and Kashmir. The Constituent Assembly was dissolved in 1957, and replaced by a Legislative Assembly, which was dismissed last year after the coalition between the Bharatiya Janata Party (BJP) and the Jammu and Kashmir Peoples Democratic Party collapsed and the Governor Satya Pal Malik rejected a bid for an alternative coalition.
Importantly, the current Presidential order modifies Article 367 of the Constitution, with “Constituent Assembly” to be read as “Legislative Assembly of the State” and the State government construed as the Governor. This has enabled the President to abrogate Article 370 with the consent of the Governor as consent of the State. The people themselves, who the Constitution is designed to serve, therefore, had no part in this process. The constitutional validity of these amendments are for the Supreme Court to ponder. But the question here is that if these are indeed designed to benefit the people, was it necessary to bring them before Parliament under stealth, with the leaders of mainstream parties, the former Chief Ministers the Abdullahs (father and son), Mehbooba Mufti and the BJP’s ally Sajjad Lone all under house arrest?
There is little doubt that these are bold constitutional measures described with contrasting adjective or invective, consummating a process that began with the Constitution of India. But if the view of government was simply to rectify a constitutional error or remedy an anachronism as claimed by assiduous government spokesmen, did it not follow that democratic compulsion required that it be placed before the public most affected — the people of J&K, — before being sneaked into Parliament in tight secrecy? This without the knowledge of even the local government amidst security measures unprecedented in their intensity, surpassing even those that the Jagmohan government was forced to take following the outbreak of insurgency in 1989-90? This endeavour has meant riding roughshod over Kashmiri public opinion already beset with widespread disaffection. What it has succeeded in doing is leading to a feeling of betrayal among a section of our people and foreboding among well wishers of Kashmir.
Without going into the moral and legal arguments for or against the scrapping of the special status to Jammu and Kashmir and the decision to reorganise the State into two Union Territories (UTs), a dispassionate analysis of the possible immediate implications of these constitutional changes is needed. Some assertions in support of the changes may partially be true while others may run contrary to the facts.
The implicit claim that this would lead to greater counterterrorism preparedness is questionable. The strength of any counterinsurgency grid is largely based on human intelligence coming from the ground. Here, it will be unrealistic to expect that merely changing the administrative and political set-up of the State will lead to more intelligence to the security apparatus; in fact, there is a high possibility of the contrary happening in the short-term on account of the decision’s unpopularity in the Kashmir Valley. India needs to be mindful of the fact that historically, any spike in disaffection in Jammu and Kashmir has facilitated a misadventure by Pakistan. For instance, the maximum dilution of Article 370 took place in the 1960s, including changes concerning the nomenclature of the ‘head of the State’. And this was followed by the infamous ‘Operation Gibraltar’ by Pakistani President Ayub Khan in August 1965.
A self-defeating strategy
The present cycle of violence can be traced back to the rigging of the 1987 Assembly elections and, in this connection, Home Minister Amit Shah is right in citing rigging of successive elections as the primary cause of the mistrust of Kashmiris towards India. But in bringing the State directly under the Centre as a Union Territory, the government may have overlooked the hard lessons learned by India’s intelligence in its nearly 30 years of counterinsurgency operations — relying purely on militaristic tools can be self-defeating.
Further, bifurcating the State and creating a Union Territory of Ladakh mirrors what Pakistan did with Gilgit and Baltistan regions by de facto creating a separate province in 2009. New Delhi has often objected to the Chinese infrastructural projects in the region and also opposed Islamabad’s decision to separate it from the rest of Pakistan-occupied Kashmir. Now, after stripping Jammu and Kashmir of its special status, India cannot claim the moral high ground any more by pointing out unlike Pakistan, it kept the integrity of the State intact.
Ladakh as Union Territory
Though the demand for Union Territory status picked up momentum in Ladakh in the 1990s, its spread was limited to the Leh district of Ladakh. The Shia population of Kargil has consistently opposed such a call as it fears Buddhist domination in the new set-up. Hence, the Centre needs to assure leaders from Kargil that their interests would be safeguarded in the new Union Territory. India would not want to create another zone of disaffection in a strategically important border region of the State where it has already faced Pakistani aggression once.
The Centre also needs to take steps to prevent further polarization within the State. The ruling political elite, particularly from the Kashmir Valley, has remained indifferent to regional and ethnic aspirations, which are inherently political. Factoring in the complex societal landscape of the State and its divergent aspirations, saner proposals have been made before for five-tier devolution of powers — from State-level to regional-level to district-level to block-level to village-level. However, in the absence of any institutional mechanism to address regional and ethnic aspirations, polarization has continued to increase among different regions, often taking a communal turn. Monday’s decision might polarize the State even further along regional and religious lines.
Mr. Shah made a valid point when he said that political reservation, as enshrined in the Indian Constitution, has been denied to Scheduled Tribes in Jammu and Kashmir even though all political parties have suitably accommodated them in other ways. In the past, there had been several Bills in the Jammu and Kashmir Assembly for political reservation but they were never passed. Around 11.91% of the State’s population is made of Scheduled Tribes, the bulk of them from Gujjar and Bakarwal tribes. Extending political reservation to them will make the State’s political structure more inclusive.
However, Mr. Shah’s claim of widespread poverty in the State, cited as one of the justifications for Monday’s decision, is not backed by facts. Only 10.35% of the State’s population lives below the poverty line, compared to the national average of 21.92%. It needs to be noted that though restrictions on land sale existed, successive State governments had been, on an ad hoc basis, liberally giving land to non-state investors on 99-year leases.
Removal of impediments
Monday’s decision on paper has removed all impediments on sale of land but, in the short term, could lead to an increase in private investment only in Jammu. A prolonged period of peace is needed in other parts of the State to attract investment. Monday’s move has also removed another impediment — children born to women marrying citizens from outside Jammu and Kashmir can now inherit property.
Further, descendants of Partition refugees who migrated from Sialkot, many of whom belong to Scheduled Castes, will now be able to get employment, buy and own land and vote in the new Union Territory.
What also needs to be considered is that bifurcation of Jammu and Kashmir may trigger demands for further division of the State which, unless they are categorically rejected, could trigger a long period of instability and turbulence. Separation of ethnically and culturally distinct Ladakh from the rest of Jammu and Kashmir is somewhat less challenging, because of its relatively smaller population. And what about the right to return of Kashmiri Pandits? Monday’s decision is unlikely to alter their present status as the security environment in the Valley is currently not conducive for them to go back.
On the whole, the country needs to be better informed of the implications of the changes on the ground. The road to resolution of the Jammu and Kashmir tangle lies in bringing the policymaking closer to facts, learning from the past and avoiding unrealistic expectations.
The great cities of the world use one guiding principle in planning services for residents and visitors: working with finite space. In big cities, new roads are not possible, and no new land is available. But they must prepare to serve more and more people who arrive each year. Successful plans build better mobility.
When cities fail at mobility, the result is congestion, lost productivity, worsening pollution and a terrible quality of life. India’s big cities have all these attributes, and 14 of them were in the list of the 15 most polluted cities worldwide last year. Congestion in the four biggest metros causes annual economic losses of over $22 billion, the NITI Aayog says in its Transforming Mobility report.
Is there a viable solution? There is, and it is the good old bus.
Sadly, buses have an image problem, which came up during a public interaction Prime Minister Narendra Modi had in the U.K. He explained aspiration with the example of someone who wants to progress from a bicycle to a scooter, then to a four-wheeler; equally a lack of ambition, he said, could lead to the loss of even the bicycle, upon which the individual resigns himself to a bus ride. Ironically, Mr. Modi made his comments in London, a city with an iconic bus system that integrates famously with its equally popular ‘tube’ system — as the Metro is known there. The British capital also discourages the use of cars through a congestion charge within a defined area.
Not enough buses in India
So important is the bus to urban transport ecology that the executive in-charge of technology and customer satisfaction at Transport for London, Shashi Verma, said during a visit to India in July that Indian cities need to add several thousand buses more, and not just spend heavily on Metro rail.
There are over 1.7 million buses in India, about 10% of them operated by governments. Individual cities don’t have enough of them to provide a good service, and the gap is filled mostly by unregulated intermediates, such as vans. The buses operated by governments are not properly designed, are uncomfortable and badly maintained. Government corporations do a poor job when it comes to using technology.
Lack of information
One of the key barriers to taking a bus is not getting information about the service; bus corporations deprive themselves too, of revenue, by failing to act on this. Cities such as London and Singapore have systems to tell passengers where the next bus is on a route and predict its arrival at a stop in real time. Such a system is not available for even the biggest metro cities in India, something the Smart City mission could have addressed.
Buses need an image makeover and cities need several thousand more buses, of good design and build quality. They need to use contact-less fare payments using suitable cards, since buying tickets is also a barrier.
Buses also need support to move faster through city traffic, using policy tools such as congestion pricing for cars. This is an old idea, dating back to 1975 in Singapore, where it was done manually first and automated much later. The London congestion charge immediately cut traffic in the demarcated area by 20%, helped speed up buses and improved revenues.
The biggest reform that the U.K. experience teaches is integration. Bringing traffic authorities, road engineers and transport operators under the same umbrella worked wonders in London to eliminate planning and operational problems. Indian cities have unified Metropolitan Transport Authorities to do that. They must be brought to life and given mandatory targets. The goal should be a stipulated higher share of travel by public transport, walking and cycling, and this should be evaluated through periodic surveys of customer satisfaction.