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Wait for outcome
No longer tax haven
Dengue outbreak |
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New threats to security
Call
from the hills
Marriage laws — decriminalising divorce
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Wait for outcome
THE CBI’s naming of industrialist Kumar Mangalam Birla and former Coal Secretary P.C. Parakh has caused shock and disbelief in some quarters, while giving the BJP another reason to go after the Prime Minister, who held the Coal portfolio in 2005 when the controversial allocations were made. It is not common for retired bureaucrats to react, when cornered, the way Parakh has done, pointing a finger at the Prime Minister. One can understand his bitterness since he is considered as honest, has been praised by the CAG as a whistleblower and credited with working towards transparency in the coal sector. But he headed the screening committee which allotted 28 coal blocks to 20 companies and 10 of these figure in CBI FIRs. Kumar Birla is one of the most prominent and respected business personalities of India and is known for following good corporate governance and ethical standards. One hopes the CBI has gathered reliable evidence of his personal involvement in the alleged irregularities in the allotment of coal-mining licences. Any hasty conclusion based on insufficient grounds can backfire on the country's premier investigating agency. The entire business community is outraged since Birla is on the boards of the RBI and the SEBI, which regulate much of the financial sector. Besides Birla, another top industrialist, Navin Jindal, also a Congress MP, is facing investigations in the coal scam. No matter how high a person is placed in society, he is still below the law. One should not jump to conclusions since the CBI has not yet filed any formal charge sheet. The investigation is monitored by the Supreme Court and chances of government interference are minimum since the media is also monitoring it closely. The scam surfaced after the CAG said the government had suffered huge losses due to allocations of coal blocks, which, according to it, should have been auctioned. Whether to allocate or auction resources is a matter of government policy. Whether there have been irregularities or corruption in coal allocations is for the CBI to prove in the court of law. Till then one will have to wait.
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No longer tax haven
Switzerland, long known for its anonymous and secret banking, has taken the first major step towards joining the mainstream by signing the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. The event marks a major achievement for the Paris-based Organisation for Economic Cooperation and Development (OECD), which has, among other things, focused on exchange of financial information between banks of various nations to curb tax evasion. Switzerland is the 58th nation to sign the agreement. It has been under pressure because it traditionally granted anonymity to its banking customers, something that made it one of the biggest offshore tax havens in the world. Swiss banks faced trouble from regulatory authorities in the US and the government came under flak, particularly from the US, Germany and France, because of the opacity of its banking system. By now, it had become inevitable that the banks would have to start conforming to international norms. The signing of the convention, to which India too is a party, is a major step in bringing financial transparency in the country's banking system. Even as modalities are worked out, there is bound to be a delay in the implementation of various provisions of the convention, particularly regarding the automatic exchange of information. The convention needs to be ratified, and it will take time before that can happen, given the nature of the Swiss democratic process. However, there is no doubt that those who had parked their money in Swiss banks primarily because of the anonymity that they offered, will now stand exposed. Allegations and some information about illicit Indian money in Swiss banks, thousands of crores of rupees, have been making the rounds for quite some time. Greater transparency from the Swiss would certainly bring skeletons out of many closets. The Government of India should now aggressively seek information about illicit money parked in Swiss banks and then take steps to prosecute the tax evaders.
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Dengue outbreak ON the surface, dengue might seem like just another fever; it's a serious tropical disease now endemic in more than 100 countries. In fact, it's the world’s most rapidly spreading mosquito-borne viral disease, and over the years, it has spread its tentacles far and wide in India. This year alone the National Vector Borne Disease Control Programme officials have recorded more than 32,000 cases of dengue and 100 deaths in the country. Kerala has reported the highest number of cases, nearly 7,000. Closer home, in both Punjab and Haryana, the number of dengue cases is rising with each passing day. Ironically, though each year thousands are affected by dengue, no effective preventive policy seems to be in place. Even though certain facts about the dengue mosquito — that it bites in the day and breeds in collected water — are well-known, few follow the dos and don'ts to prevent its outbreak. Even though the severity of dengue manifested way back in 1988, each year it leaves behind a trail of mortality and morbidity. Time and again the health departments are caught unaware and wake up only after the damage is done. As Health Minister Ghulam Nabi Azad has admitted in the Lok Sabha, there is no single reason for the increase in cases. Thus there can't be a single strategy to tackle the disease. A multipronged approach that must include concerted awareness drives and proper fumigation measures is a must. Mumbai has done well by initiating a poster campaign and even trained schoolchildren as health ambassadors. It has initiated proceedings against 290 people for neglecting mosquito breeding sites, a step which other cities too can take a cue from. India needs to remember that the disease costs the country 29.3 million dollars a year. Even more alarming than the monetary cost is the fact that dengue strikes children and young adults, a vulnerable group which needs both diagnosis and treatment at the earliest.
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Keep your face always toward the sunshine — and shadows will fall behind you. — Walt Whitman
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New threats to security EVEN as India grapples with diverse external and internal threats to its security, including a militarily assertive China and heightened Pakistan army-ISI activism on the LoC, many new challenges are emerging on the national security horizon. These are diverse in nature and could assume unmanageable proportions if left unaddressed. The likelihood of mass migrations into India, for example from Bangladesh and Nepal, are a serious future threat as these will upset the prevailing social order. The demography of lower Assam has already changed considerably. Mass migrations will also threaten the existing food reserves and endanger food security. The nation will find it extremely difficult to cope with future failures of the monsoon and the consequent famine-like conditions that will prevail. The issue of illegal migration and the security threat posed by it has been repeatedly raised by various states sharing international borders with neighbouring countries during successive Chief Ministers' conferences on internal security and law and order. The proliferation of small arm or light weapons in the southern Asian region has created its own dynamics of generating terror and instability. Small arms enter India from Afghanistan and Pakistan through ISI sponsorship and from the surpluses available in South East Asia, which are purchased at low cost by various insurgent outfits. Unless a concerted international effort is launched in conjunction with friendly foreign countries, the menace from small arms will continue to grow at alarming rates. Increasing demands for electric power to meet the requirements of industry and the growing population will make energy security a primary concern. Energy security will be particularly important in future as fossil fuels will become more and more inadequate for the nation's increasing energy needs. Domestic oil production has been declining while the demand has been rising steadily. Hence, oil will continue to be a strategic resource and the security of India's oil supplies from abroad as well as that of all oil reserves and installations will need to be ensured. The ravages of global warming and changing monsoon patterns as well as the diversion of the waters of rivers feeding the Ganges and the Brahmaputra by upper riparian states are likely to deplete India's water sources and threaten water security even as the increasing population, rapid industrialisation and the enhanced requirements of irrigation raise the demand for water. The Energy Research Institute (TERI) has estimated that the demand for water will almost double from 564 billion cubic metres (bcum) in 1997 to 1,048 bcum in 2047. M S Menon has written: "As the population is expected to reach 1,300 million in the year 2025, the present slow progress in developing and maintaining the water resources of the country will lead to alarming situations if ameliorative actions on policy and institutional reforms are not taken now on a war-footing." The situation will be further exacerbated when the Himalayan nation-states begin drawing more water for their own consumption. The amicable sharing of the Ganges waters by India, Bangladesh and Nepal has already been posing problems. Successive droughts have ravaged some of India's western states between 1999 and 2000 and groundwater levels are known to have fallen to extremely low levels. Pakistan is extremely unhappy with India's dam construction activities on the Chenab and the Jhelum and future plans for the diversion of waters of the Kishanganga river into the Wullar Lake. Pakistan has repeatedly sought the intervention of the World Bank that is the official adjudicator for disputes relating to the Indus Waters Treaty. Clearly, the future possibility of water wars on the Indian sub-continent cannot be ruled out. Information warfare is another emerging threat through which, besides nation-states, non-state actors, individual terrorists and even disgruntled elements within a state can play havoc with a nation's telecom, banking, stock exchanges, power grids, railways and air traffic control infrastructure as well as military communications and networks. The prevention of large-scale damage through a complex cyber-security system requires an inter-departmental approach in concert with industry and private entrepreneurs and can only be undertaken by a duly empowered organisation. While some progress has been made in protecting India's critical infrastructure, a great deal more needs to be done. The threats to India's maritime security are increasing exponentially as the world turns more and more towards the exploitation of ocean resources for food, energy and raw materials. This long-neglected aspect needs to be incorporated in the management of national security so that India's ocean resources in its exclusive economic zone (EEZ) are not poached at will by state and non-state actors. Oil platforms and drilling rigs for oil and gas exploration face a threat from marine terrorists. Increasing piracy at sea and the possible use of India's island territories by terrorist organisations and by smugglers for trade in contraband goods are other serious maritime threats. The security of India's island territories has now acquired added significance. The preservation of the ecological balance is another emerging challenge. The continuing increase in the population will threaten the remaining forest resources as the area of cultivable land comes under pressure. Also, over-exploitation of the oceans may upset the delicate marine balance. The increasing consumption of fossil fuels will add to global warming. A brown haze is already hanging over Southern Asia and it is now being accepted that it is directly related to environmental pollution. In future, the Indian government will have to increasingly plan for the security concerns of the vast Indian diaspora, particularly the migrant Indian population employed on temporary work permits in the Gulf countries. Still newer challenges that are emerging include those from fake currency notes, organised crime and narco-terrorism. India is flanked by two of the most notorious narcotics producing regions in the world - the Golden Crescent (Afghanistan, Iran and Pakistan; annual production approximately 2,500 tonnes) on the west and the Golden Triangle (Laos, Myanmar and Thailand; 1,500 tonnes) on the east. All of these challenges need to be addressed in a coordinated, holistic manner at the national level in conjunction with the
state governments. The writer is a Delhi-based strategic analyst.
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Call from the hills IN the aftermath of China’s aggression in 1962 the destiny of many people changed. So did mine in some indefinable way. A wizened grey-haired tantric predicted that in 10 days I would get a promotion and in the next three weeks I would be living in the hills. It naturally set me thinking that neither was I a saint in the making nor a sinner in the orthodox sense of the word. After a day or two, one expert horoscope analyst surprised me with the forecast that “on your new job you will be stripped of all powers and authority as a police officer which will, at times, make you feel like a deflated balloon”. It all happened as predicted. I got my orders of posting on deputation to the Ministry of External Affairs. No place of posting was mentioned in the order. All jubilation of going abroad ended with a subsequent order directing me to report to the Divisional Organiser at Grand Hotel, Shimla. After welcoming me, the Divisional Organiser gave a pep talk on patriotism, pointing to the urgent need of motivating, informing and inspiring the hill folks of Kangra district for voluntary training in the use of arms and guerrilla tactics. The aim was to prepare them to fight as insurgents in case the border areas were overrun by the enemy as it happened in north eastern sector. So armed with a one-page top secret policy note on the tasks ahead and a gunny bag of stationery, I arrived at Palampur, my new place of posting. I was there all by myself; no office, no staff, no official transport, the enchanting beauty of the place notwithstanding. I was lucky to enlist a local as my helper who combined the functions of a guide, interpreter, cook as well as housekeeper. To call him a peon would be doing injustice to the memory of this person and useful work he did which often reminded me of the worlds of Justice Felix Frank Furter “that no office in the world is more important than being a good citizen”. So Prem Sagar, my helper, was one such person. True to his name he was an ocean of love. To begin with he set himself on preparing for field touring equipment. He bought a tin container (used for storing ghee etc.), got it fitted with a lockable lid and managed to fill it with an oil stove, tawa, one or two utensils plates, condiments pulses, etc. He would open this magic box of sorts and set up a small kitchen at sarais, inns, dharamshalas, schoolrooms etc. This enabled him to serve me simple meals during my stay in villages. For six months of journeying, mostly on foot, including crossing a 16,000 ft high Thomas Pass to reach the last village of Palampur tehsil called Sharra Shanghai, covering dry and extensive forest areas in the interior, brought me in contact with from most ordinary people to ex-rajas and serving and retired civil and army officers. This laid the ground for voluntary participation of hill people in training programmes. So when the training teams came to the area, their response was seen to be believed. They came in hundreds and thousands to receive training in the use of arms and in the course of a few years over two lakh voluntaries, including women, were trained in the area. If you strike right chords in human heart, many rewarding moments of genuine happiness may be there, the memory of which you may cherish all your life. I am tempted to recall the words of Gregory David Roberts from his world classic book “Shantaram” that “India is the heart. It is the heart keeping us together. There is no place with people like us. There is no heart like the Indian
heart”.
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Marriage laws — decriminalising divorce
Thrust of the Bill Amendment of the two Acts is sought essentially on two counts. The first one is in respect of incorporation of "irretrievable breakdown of marriage as a ground of divorce" by adding a new section 13-C to the Hindu Marriage Act of 1955 and section 28-A to the Special Marriage Act of 1954. However, under the Bill if the husband initiates divorce proceedings, the wife is "entitled to oppose the grant of a decree of divorce on the ground that dissolution of marriage will result in grave financial hardship to her." Likewise, granting divorce decree on this new ground could also be withheld "if the court is satisfied that adequate provision for the maintenance of children born out of the marriage has not been made consistently with the financial capacity of the parties to the marriage." The second count for amending the two Acts relates to the ground of divorce by mutual consent. On this ground, the court may grant divorce on fulfilment of certain conditions. One of the mandatory conditions is that the parties to marriage are required to wait for a period of at least six months after filing their 'joint petition'. The avowed objective of six-month waiting is to give them another opportunity to reconcile. If reconciliation failed, both the parties must make a 'joint motion', but only within the stipulated period of 18 months (6+12 months) after the date of filing their original petition. In case, one of them does not turn up, the same is considered as causing "hardship" to the party "desirous of obtaining a decree of divorce." Accordingly, the Bill proposes to remove this hardship by doing away with the requisite of making subsequent 'joint motion'.
Existing grounds for divorce Under both the principal Acts, a petition for dissolution of marriage can be presented to the court either by the husband or the wife directly by alleging that the other spouse has committed one or more of such faults as adultery, cruelty, desertion; or indirectly where there has been no reconciliation by the erring spouse within the stipulated period of two years (later reduced to one year) after the grant of the decree of judicial separation or restitution of conjugal rights, as the case may be. The complexion of grievance in all the cases is essentially 'fault-oriented'. The Amending Act of 1964 brought about a significant shift in the indirect grounds of divorce by changing their fault-orientation into no-fault one. This was surreptitiously done by allowing "either party to marriage," including even the erring spouse, to initiate divorce proceedings of the Hindu Marriage Act. This indeed is the legislative attempt to dissolve marriage on 'no-fault' basis.
Divorce by mutual consent This ground was inserted into the principal Acts by the Marriage Laws (Amendment) Act, 1976. Under this new provision, both the parties could petition "together" for dissolution of their marriage by stating candidly, "that they have been living separately for a period of one year or more; that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved." Lest this provision is abused, undermining the social sanctity of the institution of marriage, the granting of divorce degree is made subject to fulfilling certain conditions, including the one of making a joint motion, not earlier than six months and later than eighteen months from the date of filing of the petition. This latter condition is sought to be omitted by the present Bill. This too is based on ‘no-fault’ basis.
Critique of the Bill Adoption of the principle of 'irretrievable breakdown of marriage' for granting the decree of divorce under the principal Acts will indeed be a 'historic' step. However, such an adoption, is not without a caveat: the breakdown principle needs to be adopted and enacted in the mode and manner in which it has been conceptually conceived, developed, tested and tried in the common law tradition. This ground is essentially premised on the principle that determinants of dissolution of marriage should not be located in findings — the guilty and the innocent. This is so because in marriage relationship neither of the spouses could be termed as 'totally guilty' or 'totally innocent.' The prime purpose of the new principle is to save the marriage as far as possible. Its objective is not to make divorce either easy or difficult. To use the classical language of the British Law Commission on Reform of the Grounds of Divorce, its objective is two-fold. "One, to buttress rather than undermine the stability of marriage; and two, when regrettably a marriage has irretrievably broken down, to enable the empty shell to be destroyed with maximum fairness and minimum bitterness, distress and humiliation." Acting on this new- humane-no-fault principle, the British Parliament abandoned the fault-based grounds and made "irretrievable breakdown of marriage" as "the sole ground for divorce" under their Divorce Law Reforms Act, 1973. In functional terms, the core concern of the court in every case under this new ground is to determine, not just whether the marriage has simply broken down but, whether the marital breakdown is 'irretrievable.' The resonance of the breakdown principle with the unique emphasis on 'irretrievability' is also heard under the Indian law. Sub-section (2) of section 23 of the Hindu Marriage Act, 1955, for instance, in clear and categorical language provides: "Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so as to do consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties." But if the court fails to reconcile the parties, they are free to follow the course as prescribed under the Act, which is no other but invoking one or more of the existing grounds that are characterised, nay arrested fiercely, by the fault-principle. Such an approach instantly negates the very objective of granting divorce on the basis of irretrievability of marriage, inasmuch as if both the parties are guilty of a matrimonial offence, neither of them is entitled to a divorce degree against the other despite the double-fault! In fact, the impact of both the amendments of 1964 and 1976 that introduced the breakdown principle by and large did not fructify. This is so because no-fault grounds are still required to operate within the framework of the two Acts, which continues to be structured on the basis of fault-principle. It has been expressly stated, for instance under section 23(1)(a) of the Act of 1955: in any proceeding under the Act the court shall grant decree only if it is satisfied that "the petitioner ... is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief."
The salvation The way to get out of the present predicament is sought by introducing the breakdown principle. This is how it has been vigorously recommended by the Law Commission of India in their 71rst Report (1978): The Hindu Marriage Act, 1955 - Irretrievable Breakdown of Marriage as a Ground of Divorce. Again, by taking note of the observations made by the apex court in several cases (a three-Judge bench decision in Naveen Kohli vs. Neelu Kohli, 2006) about the acute necessity of having irretrievable breakdown of marriage as an additional ground for divorce, the Law Commission of its own took up the matter again. In its 217th Report (2009), the Commission reiterated for the incorporation of breakdown principle as "another ground for divorce." However, the crucial question to be considered here is: whether introduction of irretrievable breakdown of marriage as "a ground" or "another ground" of divorce is conceptually compatible with the existing grounds of divorce? In other words, whether the two sets of grounds bearing two opposite complexions, one premised on no-fault-principle and the other founded on fault-basis, can fruitfully co-exist? In our view that would be palpably wrong. Irretrievable breakdown of marriage bears a distinctive perspective, which is unique, both functionally and in principle; it subsumes fault grounds and enables us to dissolve the marital union only wherein it has become impossibly irretrievable. Looked from this perspective, even the ground for divorce by mutual consent eventually tends to converge and merge into the breakdown principle. Therefore, mere amending the provisions of sub-section (2) of section 13-B and section 28 of the two principal Acts, as envisaged under the Bill, would be inadvisable. That will rather destroy the intrinsic value of divorce by 'mutual consent.' Since the continuance of the spirit of mutuality till the divorce decree is granted is the essence of divorce by mutual consent, as rightly stated by the Supreme Court in Sureshtha Devi (1992), the proposed amendment under the Bill will instantly convert divorce by mutual consent into unilateral divorce!
Conclusion We may usefully follow more than 40-year-analogous-experience of the British Parliament, who, after a meaningful debate and deliberation, abandoned the fault-based approach to their matrimony law. They reformed their divorce law, by introducing "irretrievable breakdown of marriage" as "the sole ground for divorce." This should prompt us to ponder and look at the fault-based grounds with a new perspective. The existing grounds, like adultery, cruelty, desertion, etc., would tell us the story that they are, more often than not, "the outcome rather than the cause of the deteriorating marriage" - a statement cited with approval by the three-Judge Bench of the Supreme Court in Naveen Kohli (2006). The factum of separation for a stipulated period of three years or more, coupled with the protective provisions of financial support for vulnerable wives and children would, of course, be the crucial factors to be taken care of under the breakdown principle, as proposed under the Bill. Do we still desire to continue to treat the matrimonial law as if it were criminal law with the avowed objective of punishing the guilty and rewarding the innocent! The writer is former founding Director (Academics), Chandigarh Judicial Academy; Professor and Chairman, Department of Laws, Panjab University; and UGC Emeritus Fellow.
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THE Marriage Laws (Amendment) Bill, 2010, which remained in a state of suspended animation for sometime, has been activated again. The Union Cabinet at its meeting on July 17, 2013, approved the Bill with certain significant modifications to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. This initiative has been hailed by the national press as 'historic' inasmuch as the new provisions of the Bill are intended 'to spare persons seeking a divorce unnecessary harassment at the hands of the other partner'. The amended and approved version of the Bill is likely to be placed on the legislative anvil in the coming session of Parliament.