The Tribune, Chandigarh, India

Dealing with ‘honour killings’
Haryana cannot shy away from deterrence

IT is deeply regrettable that Haryana under the Congress government of Bhupinder Singh Hooda has shown a perceptible tendency to soft pedal action on the alarming practice of ‘honour killings’ in the state wherein a person is done to death for bringing perceived loss of honour to a family or families. The recent revelation in the columns of this newspaper that after taking a position before the Supreme Court in November last that it concurs with the Centre on amending the existing laws to provide for more stringent punishment for perpetrators of honour killings, a few months later the Haryana government took a new position through an affidavit dissociating itself from the pro-Centre stand it had taken earlier, unmasks the hypocricy of Hooda’s claims of being strongly opposed to such killings.

The State government’s volte face apparently had to do with political expediency and vote bank politics in a state that is heavily rooted in upper caste domination. The Hooda government evidently feared that it would be seen to be on the wrong side of the ‘khap panchayats’ which are dominated by certain castes and are known to hand down such punishment mostly to those who defy societal norms by marrying out of caste. It is indeed difficult to believe that the Centre’s tacit nod was not taken by the State before taking such a retrograde step.

Significantly, out of the five states most affected by ‘honour killings’, Haryana is the only one that has opposed changes in criminal laws, including booking all members of a gathering that orders such killings under murder charge, along with those who actually commit the crime. Mr Hooda had in August last disfavoured framing of any special provision to deal with the cases of ‘honour’ killing, saying that the existing law was sufficient to handle such matters. Whatever may be Haryana’s political fears, it is vital that changes be legislated to increase deterrence for such a heinous crime as ‘honour killing.’ An economically progressive state like Haryana cannot lag behind in such an important social reform.

China protests too much
Doubting India’s intentions won’t do

CHINA refuses to consider the Dalai Lama as the Tibetan spiritual leader, though he has renounced politics. That is why Beijing objected to India allowing the holding of the four-day Buddhist religious congregation in New Delhi, addressed by the Tibetan leader. China wanted India to get the Tibetans’ international religious gathering to be rescheduled, but New Delhi expressed its inability to accede to its unreasonable demand. The result was that China withdrew itself from the negotiations on the border dispute with India. The Chinese stand was that the Tibetan religious leader should not be given permission to address any congregation when Beijing’s representatives were supposed to be in New Delhi to hold discussions with their Indian counterparts.

The Dalai Lama avoided touching any political issue during his speech. He also refused to answer journalists’ questions that could have raised hackles in Beijing. It was not fair on the part of China to presume that the Tibetan religious head, a separatist for Beijing, would spoil the atmosphere when the India-China border talks, now cancelled, were scheduled to be held. It would be in the best interests of both India and China as well as the region if Beijing stopped doubting India’s intentions. Nothing should be done that can affect adversely the fast increasing bilateral trade between the two Asian giants. After all, they together have to lead the coming Asian century.

Unfortunately, China believes that India is associated with the US strategy of containing China so as to prevent its emergence as the future super power. That was one reason why China strongly expressed its opposition to India agreeing to cooperate with Vietnam in oil and gas exploration in the South China Sea. China is also feeling uneasy over Myanmar showing greater interest in improving relations with India. All this has failed to deter India from building bridges of understanding with other countries in East Asia. But China sees in this the emergence of “a bit pushy” India, taking “a bold stance when dealing with China”. It is time China changed its negative perception of India in the interest of peace and stability in the region.

Thought for the Day

Men talk of killing time, while time quietly kills them.— Dion Boucicault

ARTICLE

Politics in Asia-Pacific
US makes impressive moves
by T.V. Rajeswar

THE 6th annual East Asia Summit in Bali (Indonesia), held recently, witnessed the return of the US to the Asia-Pacific scene in a big way. By marking his attendance at Bali, President Obama became the first US President to attend a summit of East Asian leaders, a region that China sees as its rightful sphere of influence.

Since the end of World War-II, the US has always been at the centre-stage of Asian affairs but in recent years China has emerged as a regional power with worrying assertions in many areas, giving rise to serious apprehensions on the part of Asian nations. Vietnam, Indonesia and Malaysia have maritime as well as territorial disputes with China. China’s unreasonable claim over the South China Sea has alarmed not only the Asian nations but also other powers which have a stake in Asia. It is in this context that President Obama’s visit to Bali to attend the East Asia Summit was important. It signifies Washington’s readiness to play its role as a strategic partner with countries like Vietnam, Indonesia and Malaysia.

President Obama and Australian Prime Minister Julia Gillard announced a security arrangement under which 250 marines — their number would be subsequently expanded to 2500 — would be stationed at Damien, at the northern-most part of Australia.

Before heading for Bali, President Obama was in Australia where he entered into a strategic pact with an agreement to station American forces at Australian forward bases like Darwin in the extreme north of the country. The location of forces in Darwin would supplement and add extra muscle to the presence of American forces at Guam, south of China, where about 12,000 US marines are permanently stationed. The Guam base supplements the Okinawa base where the US has a larger force of marines, stationed ever since the end of World War-II.

President Obama said the agreement with Australia reflected the US stepping up its commitment to the Asia-Pacific region and it was not targeted at China. He went on to say that the notion that America feared China was mistaken. However, China showed its reservations and expressed the view that an increase in military alliances with the US would not be in the interest of the countries in the region. China also warned Australia that it risked harming its economic ties with China, which is Australia’s largest trade partner, especially in respect of its minerals.

The US Defence Secretary, Leon Panetta, said that the goal of the new security pact was to signal that the US and Australia would stick together in the face of any threats. Panetta disclosed that in addition to the extended marine presence in Australia, more US aircraft will rotate through Australia as part of an agreement between each nation’s air force. Australian Prime Minister Gillard said the increased air presence would allow the US and Australia to more effectively respond to natural disasters and humanitarian crises in the region. Obama told the Australian Parliament that the US intended to deter threats to peace in the Asia-Pacific region.

He also promised to help the Philippines with a second warship next year. It is noteworthy that Obama unveiled a plan for an expanded US marines’ presence in the Pacific region and advocated a new free trade area that left out China and called on Beijing not to disturb the current world order. China responded by saying that the US was over-reacting. An analyst commented that China felt bewildered by the Obama initiative.

Moving Westwards, towards the crucial West Asian region, American presence in Afghanistan is now almost certain to continue beyond 2014 in one form or another. President Obama had announced long back that the American forces would be completely pulled out of Afghanistan by 2014. However, the US and Afghanistan are now entering into a strategic partnership which might come into effect when the US pulls out most of its forces. Limiting the US-Afghanistan strategic pact which would continue beyond 2014 was outlined by Afghan President Hamid Karzai before a “loya jirga” which consisted of 2200 elders from the various provinces and regions of Afghanistan.

Before the day-long jirga commenced on November 16, President Karzai told the elders that Afghanistan was looking for a long-term US troop presence after the NATO combat forces, including US troops, left the country. He said he wanted Afghan-US relations to be those of two independent countries and assured the neighbours like China and Russia that a long-term deal with the US would not affect Afghanistan’s ties with them. In his address to the jirga, Karzai said, “We want our national sovereignty and we want it today, and henceforth our relationship with America would be one of two independent countries.”

President Karzai said Afghanistan was willing to host US troops on a long-term basis since it would be in Afghanistan’s interest. Afghan forces would be trained and financial help would also be forthcoming.

The US insistence that it is not staking a permanent military presence and instead it is looking for ways to help Afghanistan’s security forces with intelligence sharing, air power and logistics beyond 2014. US officials said that a deal might involve shared facilities.

It is 10 years since the US-led NATO combat forces entered Afghanistan to deal with Al Qaida and Taliban forces. After the elimination of Osama bin Laden and containment of the Taliban, to a considerable degree, in Afghanistan as well as in the adjoining tribal region of Pakistan, the larger military objective of the US has been, by and large, fulfilled.

President Karzai badly needs the US forces based in Afghanistan to beat back the Taliban, the Haqqani network and other insurgent groups operating out of their sanctuaries in Pakistan.

In the US itself, many are asking if it is necessary for America to prolong its costly and ineffectual military involvement there. However, even many in the Republican Party are saying that the US troops must stay on in Afghanistan until the job is done. Before the next round of international conference on Afghanistan in Berlin, Washington hopes to conclude a strategic partnership agreement with Afghanistan.

Taking a holistic view of the US presence in the Asia-Pacific region, it is almost certain that the US and possibly a section of the NATO military forces would continue to remain in Afghanistan in some form with no time limit — whether it is for training purposes or for sharing intelligence. The base in Afghanistan is indispensable for the US. In the Asia-Pacific region, the US has made its return in an effective manner and this is likely to continue without any time limit. All countries in Asia as well as the Asia-Pacific region welcome the US presence, with the sole exception of China, which is understandable.

The writer, a former chief of the Intelligence Bureau, was the Governor of UP and West Bengal.

MIDDLE

Adulteration lessons
by Trilochan Singh Trewn

Bhendi Bazar is located close to the bullion market in the heart of old Mumbai. It is mainly a commercial area. However, a part of this is engaged in unusual transactions not being carried out in other parts of greater Mumbai. These innocent-looking activities were being carried out in an organised manner and very well-to-do and well-dressed-up persons were seen roaming about in that area. In those days rumours about adulterated milk or artificial milk supply in Mumbai were rampant as regular genuine milk supply was from Jogeshwari and beyond, and the AAREY milk supply scheme had not taken root yet. We had seen milk vendors from a local Parsi dairy carrying sealed potable containers with taps which could not be tampered with. These vendors used to go door to door.

In this area, popularly known as Chor Bazar, one could get spare parts for old vintage cars and attractive decorative items of Western origin at reasonable prices for which no receipts were given.

Sometimes, after settling down in Mumbai, one of my new neighbours expressed a desire to buy an electrical decorative light with grape-like bulbs. After entering the Bhendi Bazar area we had to enter a small lane leading to shops with small entrance doors. The interiors were large and spacious. Our guide led us to a section which was displaying tyres of vintage cars, rare Persian carpets and His Masters’, Voice-type hand-operated gramophones in excellent condition. Very soon we came across the item our friend was looking for. It was a large electrical wire garland three-metre wide with about 30 bunches of green plastic brightly illuminated imitation grapes. These were attractive which our friend purchased at a very reasonable price.

As we started to leave, we saw a number of persons listening to a speaker around a well-arranged rows of pulses, mustard oil bottles, black pepper, rice samples, coriandar powder, turmeric, common salt, tea leaves, pure ghee bottles, coffee and milk bottles. Evidently, the speaker was explaining to the listeners the methods of adulterating each of these with friendly items which could blend naturally without causing suspicion.

By purchasing the decorative electrical grape-shaped light bulbs, we had earned confidence of the dealer as a genuine customer. He considered us as inquisitive customers. He readily interrupted his speech and welcomed us to his introduction of adulteration techniques for common household items.

At the outset he stressed that for good adulteration only certain items can be used to match the original items. He showed us the items lying in glass bottles on a separate rack clearly indicating their utilisation. He vividly and convincingly explained to us the use of dried papaya seeds with black pepper, lead chromite powder with turmeric powder, linseed oil for mixing with mustard oil, copper salt for mixing with pickle, formalin for fish as well as calcium carbide and urea to be used for the ripening of fruits and production of artificial milk.

The price of each adultering agent item was written clearly on each glass container. There appeared to be no hesitation or fear of the Indian Food Adulteration Act or any law among those conducting the business! Perhaps during those days food adulteration was limited and had not faced media and public outcry yet!

OPED-LAW

PARLIAMENT HAS NO TIME
New laws and special courts are required to address the unique problems faced by NRIs. Knee-jerk reactions and formation of Commissions and committees are not the answer. But Parliament has failed so far to address the issues
ANIL MALHOTRA

COME January and our overseas Non-resident Indian (NRI) brethren descend on Indian soil to reconnect with their roots. Correspondingly, on 7 January, the Government holds its annual jamboree i.e. the Pravasi Bhartiya Divas (PBD), an annual ritual to appease the NRI sentiment and their patriotic fervour with sops, subsidies and gala entertainment.

A volley of demands to the Government, seeking effective, expeditious and timely resolution of NRI problems in India usually follows. Having become accustomed to practical and faster Dispute Resolution Systems abroad, the NRIs are quick to draw parallels and baffled Indian authorities offer instant out of the box remedies as a face-saving device. The results, not unexpectedly, are a mess.
Every year on January 7 the Indian Govt observes the Pravasi Bharatiya Divas but has shown little interest in addressing problems faced by the NRIs
Every year on January 7 the Indian Govt observes the Pravasi Bharatiya Divas but has shown little interest in addressing problems faced by the NRIs

A distraught husband from Patiala and settled in Australia, moves the court for divorce while his Tamil wife settled in Hong Kong petitions courts there for maintenance and child custody. Separated US Green Card holder husband relocated in Mumbai sues for divorce while his US based wife from Varanasi seeks child support and benefits sitting in USA. Separated NRI couple in UK seeks British Court’s intervention to settle terms for their children to visit India with their mother and to ensure they return to UK. A divorced NRI husband in USA seeks child custody from mother resettled in Hyderabad. Harried British Asian Muslim husband in UK seeks to dissolve Nikahnama contracted in Lucknow. Embittered Swiss father of Punjabi origin seeks quick dissolution of marriage solemnised in New Delhi. Traumatised Indian doctor in UK seeks return of children removed to Gujarat by wife who has launched proceedings under Domestic Violence Act in Satara. These are real life problems which defy legislative solutions.

There is a huge Indian diaspora, numbering nearing 30 million strong and spread in 130 countries abroad. They increasingly come up with unique family law problems, which existing Indian matrimonial legislations find difficult to address. Hence, judicial innovation to carve out individual relief in distinct NRI family disputes is necessitated on a case to case basis. But there are few or no consistent and statutory remedies.

The response from the Government range from creating an NRI Commission, constituting NRI Cells, deputing designated authorities for NRI problems and forming special NRI Committees. However, all such administrative measures soon fade away and resurface with the arrival of the NRIs again in the following year.

NRIs seek resolution of their problems from an Indian legal system not designed and created for resolving their new age issues. Times have changed but statutory Indian laws have not kept pace. Most NRI problems are neither defined nor recognised by Indian laws but our legislators have no time to amend or even address them.

Thus, creating NRI Cells, Commissions, Committees or other bodies will not help. No such authority without statutory powers will have any credibility in the framework of the existing legal system. Parallel set ups without statutory sanction are meaningless. Such administrative bodies will at best be recommendatory officers whose decisions will need judicial sanction. The aggrieved NRI or affected party will still need to invoke powers of a Court of Competent Jurisdiction for actual relief.

The Parliament, therefore, needs to enact new laws or amend existing laws to define the NRI problem and prescribe solutions. One such example can be found under Section 13 of The East Punjab Urban Rent Restriction Act, 1949. Its amendment in 2001, created a special class of NRI landlords who had a special right to recover immediate possession from tenants occupying their premises by a special summary procedure. Likewise, in the family law arena, limping NRI marriages, abandoned spouses, abducted children, overseas adoption and surrogate relationships need statutory solutions. Family laws for NRIs need an exhaustive overhaul. Either, all existing family law legislations be amended or one single comprehensive Indian legislation should be enacted for all family related legal problems of NRIs.

Similar is the situation in the field of property laws. Tenancy, succession, registration, investment & transfer of ownership of property form a bulk of NRI problems. But scattered and outdated legislations serve no purpose. Thus, there is again a dire need for multiple amendments or for enacting a new NRI property law dealing with their problems comprehensively. Special Courts will have to be created and empowered to deal with these lissues. A complete responsive machinery must be evolved under proper rules to be made under the newly enacted or amended NRI laws.

The answer is not in creating toothless bodies. Only enacting appropriate NRI laws, making corresponding procedural rules to implement them and vesting authority in Competent Courts to adjudicate NRI disputes will provide an effective remedy. This must naturally be done on an all India basis because piecemeal State legislations will not do.

An exercise in futility
Punjab State Commission for NRIs is flawed and unlikely to succeed because it can usurp powers of neither the Legislature nor the Judiciary.

IN October this year, the Punjab Legislative Assembly amidst pandemonium passed 11 Bills without any discussion. As a result, Punjab State Commission for NRIs Act, 2011 was enacted with a generous state government providing Rs.50 lakh during the current year for paying the salary of employees of the five-member Commission.

While Non Resident Punjabis generally descend here to reconnect with their roots, there has been a role reversal this year. With Punjab going to the hustings in 2012, Ministers in waiting and poll managers have flown in advance to UK, USA and Canada to lobby for support and seek greenbacks. Indigenous vote banks in rural Punjab are also influenced by the thinking of philanthropic and cash-rich NRIs in the matter of casting the ballot. Hence the scramble to woo them.

This regardless of the fact that only 38 NRI voters have actually registered themselves for casting votes, for which they will have to be physically present in Punjab. For wooing this perceived vote bank, the political competition and compulsion is about which party can devise the best mechanism for resolving the problems of the NRIs in Punjab.

About 5 million Punjabis, it is estimated, are settled abroad and are bound by family, property and business interests back home. Their problems do need solutions. Conventional laws and slow, tardy procedures do leave them disenchanted.

Who is an NRI or a PIO or an OCI for that matter?

Section 2 of the Foreign Exchange Management Act 1999 (FEMA) defines a person resident in India and a person resident outside India but does not define the term NRI. However, a notification defines NRI to mean a person resident outside India who is either a citizen of India or is a person of Indian origin. Under FEMA, a person “resident” in India is one who resides in India for more than 182 days in the preceding financial year and who comes or stays in India for any purpose and a “non-resident” is merely defined as a person who is not a resident in India. Therefore, an NRI can be summed up as an Indian citizen who is ordinarily residing outside India and holds an Indian passport.

PIO: It means a foreign citizen who at any time held an Indian passport; or he/she or either of his /her parents or grandparents or great grandparents was born in and was permanently resident in India; or he/she is a spouse of a citizen of India or of a person of Indian origin. PIO card holders can visit India without visa for 15 years and will be required to register with Foreigners Registration Officer (FRO) in India when the stay exceeds 180 days continuously. PIOs enjoy parity with NRIs in respect of certain facilities but have no political rights and can apply for Indian citizenship after residing in India for a minimum of seven years.

OCI: A foreign national who was eligible to become a citizen of India on January 26, 1950, or was a citizen of India on or at any time after the said date or belonged to a territory that became part of India after August 15, 1947 and, his / her children and grandchildren are eligible for registration as OCIs. They enjoy multiple entry multipurpose lifelong visa for visiting India, are exempted registration with FRO/police authorities for any length of stay in India and are entitled to benefits notified under Section 7 B of the Citizenship Act. An OCI registered for 5 years and residing in India for one year can be granted Indian citizenship but have no political rights.

The Punjab State Commission for NRIs Act, 2011 is stated to be “An Act to provide for the constitution of the Commission for NRIs in the State of Punjab with a view to protecting and safeguarding the interests of the NRIs in the State of Punjab, and to recommend remedial measures to State Government."

It defines a “complaint” by stating that it “means all petitions/communications received in State Commission for NRIs from an NRI or any other person on his behalf, in person, by post, by telegram, by fax or by any other means whatsoever, alleging, disputes or violations or abetment thereof or negligence in the prevention of such dispute or violation, by a public servant or a private person or the material on the basis of which the Punjab State Commission for NRIs takes suo motu cognisance."

The flaws

The law however, does not define what is an “NRI dispute” or a “NRI violation". Consequently, the authority, jurisdiction and powers of the Commission, remain hazy and undefined.

Though the proposed body has extensive investigative powers through the existing official machinery, its capacity to provide practical relief and pass effective orders remains questionable. The NRI Commission cannot usurp the powers of courts and may well turn out to be unworkable.

Amusingly, the focus of the law enacted is more on the members of the Commission and what they will get as benefits. The actual emphasis on what the body in making would actually do and how it would dispense justice in relation to a defined arena of NRI disputes or violations is blissfully missing.

The grievances of NRIs revolve around family law related issues, property disputes, immigration related questions and trysts with criminal law. But then the system of Civil and Criminal Courts mandates that all disputes shall be adjudicated by Courts of competent jurisdiction as per statutory laws made by Parliament and applicable throughout India. Consequently, identifying an “NRI dispute” for being heard and decided by a different authority will clearly fall foul of the system of prevalent adjudication by existing courts. The aggrieved NRI will still need to invoke the powers of a competent Court for actual relief as a NRI Commission cannot enjoy parallel statutory adjudication powers.

In case the NRI Commission is meant to be a recommendatory body, the Law Commission of India and Punjab State Law Commission are already saddled with this exclusive role of suggesting changes in laws. In any case, no major exercise is needed to identify where amendments are required as both the problems and desired solutions are well known. Most of them relate to Central Laws within the ambit of Parliament. Hence, any state level exercise to achieve independent changes will be an exercise in futility.

The writer is a Chandigarh based practicing lawyer and a member of the UT NRI Cell and author of “Indians,NRIs and the Law”