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Correcting distortions in governance |
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Hindu marriages: HC ruling upsets settled law by Anil Malhotra THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.
Terror & international law
On Record
Profile
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Correcting distortions in governance Rules of governance have become so overtly violative that the system has been rendered non-functional. Earlier, an easy explanation used to be the prevalence of corruption, high transaction costs and lack of transparency. Interestingly, even corruption has ceased to perform one of its foremost functions, i.e. facilitation and efficiency. This has been exemplified in the preparation for the Commonwealth Games, wherein even large-scale corruption could not induce efficiency. A clear message emerges that the system has ceased to be functional. Consequently, the Army was reportedly assigned the task of killing mosquitoes to facilitate a Dengue-free hosting of the Commonwealth Games. The first initiative is to be taken to restore the identity of the citizens. Even after 63 years of Independence, citizens have to prove their identity. This mistrust has been institutionalised to the extent that even to prove their name, they have to seek affirmation from a gazetted officer of the government. For declarations relating to their profession, income, caste, residence proof, etc., affidavits are to be given on legal papers sworn before a Magistrate or public notary. Even to procure ration cards, electricity, sewerage and water connection, birth and death certificates, applications for admission to the educational institutions, affidavits attested by the gazetted officer or third party or public notary, or Magistrate have to be produced. The govern-mentality continues to treat citizens as colonial subjects. However, most of these affidavits are local inventions and are not required by law. However, the ‘govern-mentality’ of mistrust has resisted any attempt to repose trust in its own citizens by accepting self-declarations as reliable and authentic. The Punjab Government by its order discontinued the practice of submission of affidavits unless required by law. Further, the services are rendered to the citizens not as a matter of right but as a dole. To reverse this, a legislation has been proposed by the Governance Commission to make it mandatory for administration to serve the people. The purpose is not merely to provide corruption -free and harassment-free services but to send the signal that it is citizens who shall govern and not the administration. In other words, the main focus is on accountability rather than efficiency. The government accepted the Commission’s recommendation to legislate an act to ensure delivery of services as a right to the citizen. It includes around 48 services from the Departments of Revenue, Local Self-Government, Electricity, Police, Food and Civil Supplies, Health, Transport, etc. This will transform the terms of interaction between the citizens and the administration. Further, the administrative division of population on the basis of caste and religion has multiplied social cleavages and led to the denial of full citizenship. The decision to conduct caste-based census is a sign of diversity insensitivity that shall only produce fractured identity as a citizen. Recently, another initiative to protect the girl child, pregnant women was tracked to prohibit them from seeking sex selection tests to abort a female foetus. As this is violative of the citizen’s privacy, it has the potential to provide license to those who treat women as commodities. The Commission has suggested that the government should enforce law on private and public sector medical practitioners and at the same time attempt to enhance the value of the girl child by ensuring tracking of the girl child through her life cycle from birth to death and interweave incentive-oriented schemes to check both female foeticide and cultural neglect. The pervasiveness of cultural neglect of the girl child has been proved beyond doubt by the provisional census data 2011. The provisional census data have shown how sex ratio at birth has shown some improvement, but child sex ratio (0-6 years) has shown a major decline. Along with loss of identity, lack of respect and dignity is reflected in everyday interactions of the people with the government. The spatial disconnect experienced by the citizens in the police stations in particular and the District Collectorates in general, is more pronounced. The visit to these spaces gives a feeling of alien space and a sense of loss of dignity and identity. And, interactions with the police and consequent loss of dignity has been described succinctly in the Fifth Report of the National Police Commission (November 1980). The Commission expressed anguish that the 1902 Fraser Commission’s observation that ‘people’ now may not dread the police, but they certainly dread getting involved with it in any capacity, continues to be valid. This political interference which has become an accepted part of the political culture (not only in Punjab but in many other states) has produced glaring distortions in the practice of governance leading to dilution of hierarchy, dysfunctional internal accountability mechanisms and patronage-centric governance. To illustrate, the average tenure in 2009 of a Station House Officer is around six months, which was about seven months in 2004. In the case of a Deputy Superintendent of Police, the same is ten months and one year for the District Superintendent of Police. Therefore, it is suggested that the tenure of the police personnel may be fixed in consonance with the Police Act and a performance audit report may be considered as the basis for transfers and postings. The language of power is different from the language of justice. The institutions of justice delivery understand with clarity the language of power and material rather than listening to the feeble voices of the dispossessed. A third set of prerequisites relates to productivity, i.e. to engage people with the system in a productive manner and provide conducive conditions to nurture people’s capacity to be productive and their ability to exercise some degree of control over their lives. To illustrate, in the section on Social Security and Welfare Programmes, it has been brought out how the social security programmes like Pensions and Shagun are given as doles to a large section of the ineligible population. This has become a practice with successive governments. Consequently, it leads to wastage to the tune of about Rs 220 crore and Rs 40 crore in the case of old-age pension and Shagun schemes respectively. The need is to identify the deserving beneficiaries as also to ensure that its reach is periodically evaluated. Instead of productive engagement of the citizen, a culture of sharing of the spoils is reinforced. Subsidies directed at the poor are given as doles and subsidies directed to protect the profits are described as ‘rescue’ packages. A fourth set of prerequisites relates to the allocation of roles to various institutions. Since administration is compartmentalised in the departments and each department has its own priorities, if a particular department’s priorities take precedence over the other, that is likely to lead to dissonance within the system. There is no dearth of examples to demonstrate this point. In 2004-05, the Department of Finance of Punjab, in its overactive commitment to impose fiscal management, came out with a scheme to contract untrained ‘teachers’ from the same village to cut government expenditure. As a result, the quality of teaching further deteriorated and, later, all the contractual ‘teachers’ launched protest and demanded that they should be trained as teachers and that their services be regularised. This scheme was spearheaded by fiscal management framework rather than access to equity concern in quality education. As a result, the inability to maintain delicate functional balance between the institutions produced a major crisis in governance. The tendency to empower institutions with ad hoc license has a clear message, i.e. to kill poison with poison and letting the patient die. This has made governance less a matter of politics, more of an administrative policy and the discretionary political
interference.
The writer is Chairperson, Punjab
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Hindu marriages: HC ruling upsets settled law THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law. The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties. However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage. The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married. Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile. The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA. Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court. The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter. Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US. Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties. The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam. With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously. This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.
Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.
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Terror & international law
Paul Wilkinson rightly says that fighting terrorism is like being a goalkeeper. You can make a hundred brilliant saves but the only shot that people remember is the one that gets past you. It is true that they will remember such a shot because it is not every day that one encounters a deathlike experience. Terrorism is a plague that is destroying the fabric of human rights painstakingly built. However, till date terrorism has not been identified as a specific crime under international law. It has been observed that people are living under a mistaken belief that there exists an international law in the world which provides an answer to their predicament. The truth is that there is no common binding international law in existence. The existing international law suffers from a major drawback: it is not enforceable and there is no penalty for its violation. It, therefore, cannot be called a law at all. The question that arises is whether this is due to a lack of consensus or the lack of a legislative authority. The United Nations has been successful in enacting various international instruments to deal with the different aspects of the problem of terrorism. However, these are simply unplanned measures which lack real legal sanctity. In the absence of an umbrella legislation on terrorism, we have 13 international treaties. All these agreements are simply ad hoc responses to violent manifestations or perceived threats of terrorist activity with respect to aircraft and ships, airports and fixed maritime platforms, diplomats, hostages, explosives and other dangerous instrumentalities, and the financing of terrorism. It is evident that the international law on terrorism is in patchwork. There are numerous difficulties faced in such a sketchy scenario. The time required to draft a treaty in a multilateral form is lengthy. It, therefore, becomes questionable as to whether the international community could make timely treaties in response to the newly emerging security threat. The Nuclear Terrorism Convention required more than six years before being finalised. Secondly, the problem of requiring too much time does not apply only to the negotiation of a treaty; it also holds true with the domestic legislative process. By definition, anti-terrorism treaties require national penal legislation to give real effect to them. Such legislation sometimes involves an extremely complicated drafting process. The reason for Japan’s delayed ratification of the relevant conventions was first and foremost the time required to prepare for the implementation through domestic legislation. Thirdly, there are problems with regard to the content of the anti-terrorism treaties themselves. The main purpose of these treaties is to criminalise terrorist acts with grave penalties and to ensure that offenders are punished. How do you punish those terrorists who take part in suicide bombings? Further, these conventions establish certain obligations upon signatories to cooperate. However, these obligations are challenging to fulfil due to unfriendly states; states with differing legal systems such as common law versus civil law systems; or states’ varying interpretations of the “political offence exception” or the definition of hijacking. Additionally, the enforcement mechanisms are absent or very weak. In the 1976 Entebbe episode, Uganda offered aid to the hijackers despite that nation’s ratification of the conventions. Yet, Uganda never received punishment or censure. In contrast to multilateral treaties whose drafting tends to require a great deal of time and the accession to which is not obligatory, Security Council resolutions adopted under Chapter VII of the UN Charter legally bind all UN members immediately and automatically without exception and are equivalent to the treaties instantly ratified by all UN members. The Security Council has adopted numerous resolutions to counter the effects of terrorism. Resolution 1373, probably the most important of all was adopted in the immediate aftermath of the terrorist attacks of 9/11 in a situation when only four states had ratified the International Convention for the Suppression of the Financing of Terrorism. It was “a shortcut, an emergency measure” to impose upon states the rules of the convention. Other setbacks faced on account of these resolutions come from the states themselves. Due to the inherent differences in domestic laws across the globe, some states have legal hurdles that must be crossed before they can successfully implement the international dogma. The largest problem facing the Security Council is the lack of direct international influence in the implementation of its resolutions. The issue with trying to impose direct international law, however, is that it would infringe on the sovereignty of nations, leaving the Security Council with a double-edged sword; it cannot always trust nations to implement resolutions (although they do more often than not), but it cannot impede the sovereignty of a nation. Moreover, these Security Council resolutions do not give a detailed definition of terrorism. They just give examples of terrorism, which include the 9/11 attacks, the acts of specific groups like the Al-Qaeda. These resolutions only seem to deal with the problems concerning the more influential members of the Security Council. Since 1996, the United Nations has been considering the proposal of a comprehensive treaty on international terrorism. This has not been fruitful as the negotiations are deadlocked on account of the definition of terrorism. The controversy is based on what distinguishes a “terrorist organisation” from a “liberation movement”? And do you exclude activities of national armed forces, even if they are perceived to commit acts of terrorism? If not, how much of this constitutes “state terrorism”? Finally, despite the Review Conference held on the Rome Statute in 2010, acts of terror were not considered vital enough to be included under its authority. Why has the international community of states found it so difficult to deal with terrorism? The reason, surely, is that the international community cannot legislate unless there is consensus. And there has been and is no consensus on the most heinous of all crimes —
terrorism.
The writer is Assistant Professor, University Institute of Legal Studies, Panjab University, Chandigarh
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On Record
A chance meeting with Farida in Hazrat Nizamuddin, Delhi, changed the course of Shabnam Hashmi's life. Though pursuing her Masters in Russian Language and Literature in Moscow in 1981, she decided to plunge into social work. Thereafter, she has never looked back. Sister of slain theatre personality Safdar Hashmi, Shabnam is a human rights activist. She heads News Delhi’s human rights group Act Now For Harmony and Democracy (ANHAD). Born in Aligarh, she has been attacked twice by the Hindu right groups only to emerge stronger. In an interview with The Tribune in Dehra Dun, she spoke on issues concerning the Muslims and women. Excerpts: Q: How did you get initiated into social activism? A: Fifteen-year-old Farida changed my perspective of life in 1981 when I came from Moscow on a holiday. She was married at 13 and divorced at 15 and had never seen a school. I began working at the basti for 15 hours a day. Later, ANHAD was set up. It is supporting 25 children who were victims of the Gujarat riots. Q: You recently released What it means to be a Muslim in India Today, a collection of testimonies of victims of the anti-terror hunt, their long wait for justice. How did it come about? A: The testimonies were documented of the Muslims who were illegally detained based on flimsy investigation and the fear of illegal detention that has taken deep roots in the minds of average Muslims. The second part of the report consists of testimonies of 150 Muslims who faced discrimination while seeking employment. The report followed the people's tribunal in Hyderabad. Cases of lifting of Muslim boys on flimsy charges have stopped. The true face of Abhinav Bharat has been exposed. Q: Though the Centre is yet to implement the Sachar Committee Report, did it help focus attention on the educational and economic status of India's Muslims? A: There are plans for the betterment of Muslims like the Prime Minister's 15-point programme that calls for allocating funds in the Muslim-dominated areas that are backward. How much that is being done remains to be seen because there are reports that the funds are not reaching these areas. The entire scheme has been distorted. The Muslims can benefit immensely from the scholarship scheme, but we need to inform society about its existence. Q: ANHAD has been providing succour to the Gujarat riot victims. Where do things stand now? Is the time ripe for reconciliation? A: Once we began documenting the testimonies of rape victims, we realised how much society had shifted towards negativity and hatred. There was always a struggle between the forces of hatred and democratic values but at that point in time my faith in democracy did receive a beating. I kept asking myself: will we survive all this and continue to remain a secular and democratic country? The victims of riots in Gujarat have still not got justice. Q: Shouldn't the Muslim society get out of the siege mentality syndrome and educate those who have been left far behind and not focus solely on identity? A: I never viewed leadership as a separate issue because I believe that a truly secular leader coming from any community would be good enough. After the Gujarat riots of 2002, the Muslims have withdrawn, I think. Muslims ought to have a platform to articulate their voices and issues. Communalism and anti-Muslim hatred have become so deep-rooted that there is a desperate need for socially-rooted but progressive-minded Muslims to speak out on Muslim affairs and to provide proper leadership and direction. Q: Are the Hindu and Muslim organisations fair to women? A: Both have the same agenda. They are completely silent on the issues that concern women and their upliftment. They would prefer to discuss only on religious identity and efforts to curb the freedom of women. They would like them to remain in the background.n
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Profile
THE film world has not taken kindly to the appointment of the renowned Bharatnatyam dancer, Leela Samson, to head the Central Board of Film Certification. In fact, Bollywood and filmmakers from other movie industries stand divided on Leela’s choice. Some contend that she has no direct experience in the film industry and her choice was a downslide compared to the earlier incumbents like Sharmila Tagore and Anupam Kher, both with decades of experience in the film industry. Director Mahesh Bhatt has, however, been quoted as saying that Leela’s appointment is a welcome change as an outsider’s objectivity will now be appreciated. She competed against such Bollywood biggies as Shabana Azmi, Gulzar and Ramesh Sippy. According to Union Information and Broadcasting Minister Ambika Soni, Leela was chosen after 25 to 30 persons from different walks of life were approached for the prestigious post. Several from the film world turned down the offer, citing a conflict of interest. This is not the first time that someone outside Bollywood has been appointed as the CBFC Chairperson. The previous incumbents included IAS officers, officers from the Film Division and even a Brigadier. A dance prodigy is, certainly, more qualified to head the CBFC than a bureaucrat or a military man. Leela Samson is not an ordinary artist. She is among India’s most dynamic and technically brilliant dancers, an outstanding representative of the Kalakshetra, the famous institute for the classical arts founded by the late Rukmini Devi Arundale in Chennai. Leela joined the Kalakshetra as a young child and her formative years were spent in imbibing the nuances of Bharatnatyam and related arts at the feet of celebrated Gurus. Leela’s performances are popular all over India and many countries of Europe, Africa and America. Her personal style is unostentatious, serene and characterised by an impeccable technique that blends geometrical precision with vibrancy and an unfettered ease. Her rhythmic acumen is apparent in dance compositions, containing varied and challenging percussion patters. She choreographed a number of group and solo compositions in Bharatnatyam. One of her major choreographic production, Spanda (meaning a vibration of pulse) was performed to high critical and audience acclaim and hailed as a seminal work. She has trained many accomplished students who are now teachers in their own right. She has authored several articles as well as the book Rhythm in Joy. Leela received the impulses for her growth as a dancer from the Kalakshetra. Though she adheres to the mould of the Kalakshetra technique, it has grown out of its binding, believing she does that adherence to any school is a point of reference only. She is, however, deeply influenced by Rukmini Devi, the founder of that institute and its philosophy. She joined the Kalakshetra in 1961. Like other children, her education at the Besant Theosophical High School was with her training in Bharat-natyam. After finishing school and a couple of years in college in Mumbai, she returned to the Kalakshetra to do post-graduation in dance, now coming under Rukmini Devi’s gaze. She was absorbed in the dance-drama department and travelled with the company on tours in India and abroad. She left the institute in 1975, visited China with Rukmini Devi and her troupe. In December that year, she was part of the Golden Jubilee celebrations of the Kalakshetra. Rukumini Devi’s passing away in February, 1996, led to the creation of the Kalakshetra Foundation of which she was a member. In 1975, Leela joined the Sriram Bharatiya Kala Kendra, Delhi, and started there the Department of Bharatnatyam. When she left it in 1990, there were over 60 students learning the southern Indian form. For the next 15 years, she taught privately in the tradition of guru-shishya parampara and has trained several dancers who have graced the Delhi stage. As a writer, Leela is able to interpret sensitively the intricacy and feel her form. Her book, Rhythm in Joy deals with the major classical dance forms of India. She has also written a book on the dance forms for children. Leela’s biography of Rukmini Devi is a must read book. When she interacted with her, Leela feels she was a powerful individual, a complete
person.
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GOVERNANCE : For whom and for what? This question normally gets lost in the processes, procedures and application of technology. To illustrate, the application of unique ID numbers, no doubt, shall provide efficiency, but only to the existing process of undignified and exploitative exchange between the citizens and the government. These rules of exchange in many spheres do not protect the rights and the entitlements of the people on the margins besides treating a fairly large section of the citizenry in an undignified manner.
