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A Tribune Special
NRIs’ problems: A composite Indian law needed |
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Murder for ‘honour’
Profile
On Record
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A Tribune Special Community participation will help achieve better results, says Sankar Sen
The police say, if they are given more resources, especially personnel, they will be able to protect community against crime better. This, according to many criminologists, is a myth. David Bayley has argued in his book, Police For The Future, that differences in crime rates cannot be attributed to variations in the number of police. In the US, between 1970 and 1990, the number of full-time police officers rose by 70 per cent but the serious crimes rose by 78.8 per cent and violent crimes by 147 per cent. In the UK, police per capita rose by 12 per cent and crime rate by 67 per cent. In Canada, it is 16 per cent and 34 per cent respectively. There are studies to show that even when the number of police has been reduced in some areas due to budgetary crisis or as a result of strikes, crime rates have remained unaffected. During the police agitation in 1978 in Orissa’s Rourkela (where this writer was then the Range DIG), policemen were not on the roads for nearly a week and the authorities had to organise night patrolling through citizens’ groups and Home Guards. However, there was no increase of crime during this period. Indeed, there was a decline. It is increasingly felt that in the battle against crime, the police require active support and cooperation of the public. Empirical researches demonstrate that arrests and better detection by the police, common indicators of efficient police performance, do not have any significant impact on reduction of crime. It may sound strange, but it is a fact that crime rate is not affected by the success of the police in solving crime. Consequently, police leaders and administrators have to think of using police resources far more proactively for meeting the challenges of crime. The police have to think of ways and means of preventing it. According to Ostrom Elaner, crime prevention is an activity in which the public must also be actively engaged. They must become co-producers of public safety. For taking the challenge of crime prevention seriously and purposively, the police will have to break with past practices and adopt new strategies. Consultation, adaptation, mobilisation and problem solving are some of the important elements of the new strategy. The police will have to evolve mechanisms for discussing crime prevention strategies with the members of the community by deepening contacts and holding regular meetings. This is happening in many of the democratic countries of the West. The police should adapt itself to the changing situations. Instead of relying on general policies and strategies formulated at Police Headquarters, the local commanders should devise strategies to suit local needs. For effective crime prevention, responsibility for formulating action plans has to be given to the frontline personnel. The formal and informal structures of authority in policing are not congruent. Sector policing in London, which has been started since 1991, tries to achieve the same goal. Police divisions are divided into two or three sectors. Each sector is under an inspector who, with his subordinate officers, plans appropriate strategies for the sector in consultation with members of the local community. We should also decentralise functions and give more power, authority and budgetary independence to the local commanders. Organisational development studies in the early 80s by people like Tom Peter tried to dispel old notions. Peter pointed out that men on the frontline possess as many creative ideas on how to improve processes and find solutions to problems as top-level managers. The police should also increasingly mobilise the resources of the community to prevent crime. In many American cities, civilians are actively involved in intercepting and spotting criminal behaviour. The drivers of radio-equipped taxies, delivery vans and telephone repair vehicles are sometimes trained to spot criminal activity and notify to the police. Volunteers wearing distinctive caps and arms-bands move in areas where criminal activity is likely to take place. In India, similar endeavours have been made occasionally, with some success, by energetic Police Chiefs. But no sustained effort has been made to mobilise the resources of the community for crime prevention. Today, when most governments are facing financial crunch and there is enormous pressure on government budgets, substantial augmentation of police staff and resources will be expensive and difficult. Mobilisation of the community can be one of the practical means of augmenting the crime-focussed resources of the police. Similarly, in states affected by Naxalite violence, community mobilisation is more important than sheer augmentation of the police staff. We should also adopt a problem-solving approach which will enable the police along with the community to identify and address the real causes that lead to crime. This calls for a departure from the reactive incident-driven stance of the police. In the US, Herman Goldstein developed the concept of problem-oriented policing which has encouraged the police to think somewhat differently about its role. Problem resolution, according to Goldstein, constitutes the true work of policing. Whenever there is a sharp rise in crime and disorder, the police opt for strong and, if necessary, extra-legal methods because of public demand for stringent action against the criminals. This is dishonest law enforcement, which exploits the public’s fear of crime. Ultimately, this does not help because it cannot tackle the true causes of crime and disorder. Crime is a product of complex biological and social and economic conditions. Its prevention requires meaningful intervention after proper study and analysis. Public support is also essential. Law enforcement officers know that because the crime suspects are not identified readily, most crimes remain unsolved. Japan is an exception among the developed countries where the police solve about 58 per cent of the crimes. It is 21 per cent in the US, 35 per cent in the UK and 45 per cent in Canada. The police initiative’s success to reduce crime is often determined by a factor outside police control — the time taken by victims and witnesses to notify the police. Japan has succeeded in keeping crime rates low. Japanese police make tireless efforts to encourage co-operative crime prevention. During their visits to the citizens’ homes, the police officers there distribute crime prevention material, discuss crime in the area, make security inspections and raise the level of consciousness about the dangers of
victimisation. The police in the US reassure the public that their fears of crime are exaggerated and the crime situation is not so bad as they imagine. True, mobilisation of community support in India is not an easy task in view of the alienation of the police from the community. However, against the backdrop of growing crime and disorder, the people will come forward to help the police only when the police are able to convince them that they genuinely want to help them.
The writer, a former Director General, National Human Rights Commission, is currently Senior Fellow, Institute of Social Sciences, New Delhi
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NRIs’ problems: A composite Indian law needed
WITH increasing cases of litigation involving Indian jurisdiction, questions have arisen over the enforcement and execution of foreign judgements and overseas arbitration awards when they are sought to be implemented in India. There is a need to examine the current position in law so that possible solutions can be evolved in Indian jurisdiction. The focus is on disputes of a civil nature, especially with reference to enforcement of foreign matrimonial judgements in Indian jurisdiction Primarily, we are looking at the limited personal legal baggage of the NRIs. Matrimonial laws differ from country to country. Men and women migrate to different countries to settle or work and likewise foreign nationals come to India. It is quite normal where Indian nationals have been marrying foreign nationals either in India or abroad and even both spouses are foreign nationals but of Indian origin and are getting married in India. Often, a foreign national of Indian origin, resident and domiciled overseas, marries a spouse from India. Breakdown of a marriage in such a situation leads to complicated cross-border legal problems in the Indian jurisdiction as we do not have a consolidated, codified private international law, specifically addressing such situations. These problems arise due to cross-border migration and the parties generally have their domicile in one country and either of the parties attempt to obtain matrimonial relief in a jurisdiction of their choice and convenience, financial implications being a major predominant criteria in divorce litigation all of which leads to a conflict of law. The result: the parties to the litigation end up with simultaneous court orders from different jurisdictions. The Supreme Court of India, in Y. Narasimha Rao and Others V. Y. Venkata Lakshmi and another (JT 1991 (3) SC 33), observed that: “The rules of private international law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it…” The basic provisions regarding enforcement of judgements and orders of foreign courts in India contained in the Indian Code of Civil Procedure, 1908, is an enactment to consolidate and amend the laws relating to the procedure of the courts of civil judicature in India. The substantive provisions of law are contained in the parts of the code which are dealt with in the sections whereas the procedural provisions are set down in the corresponding orders and rules contained in the code. It is in this context that Section 44 A of the CPC lays down the provisions for execution of decrees passed by courts in reciprocating territories. A reading of this provision indicates that for a decree of a foreign court as a reciprocating territory to be executed in India, the foreign country must be so notified by the Government of India in the official gazette. Most countries including the UK have been so notified by the Government of India. Sections 38 and 39 are dealt with in Part II of the code relating to execution Section 13 of the Code with regard to validity of foreign judgements is very important, which states that a foreign judgement is not conclusive in the following situations: where it has not been pronounced by a court of competent jurisdiction; where it has not been given on the merits of the case; where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; where the proceedings in which the judgement was obtained are opposed to natural justice; where it has been obtained by fraud; and where it sustains a claim founded on a breach of any law in force in India.” The most commonly adopted ground used as a defence under Section 13 CPC is that the judgement and decree of the foreign court is not based on the merits of the case and hence cannot be executed in India. Indian Law reports contain a number of judgements on matters relating to marriage, divorce, maintenance, succession, settlement of matrimonial property, child custody, parental abduction of children from foreign jurisdictions in matrimonial disputes and cases relating to adoption. These foreign court orders once having been passed are sought to be enforced or executed in India through the medium of the courts. A very common issue pertains to recognition and indirect implementation of divorce decrees of foreign courts produced in India by spouses residing in foreign jurisdictions. In 1991, the Supreme Court of India laid down fresh guidelines for the recognition of foreign matrimonial judgements by Indian courts. The Supreme Court has made it clear that Indian courts would not recognise a foreign judgement if it had been obtained by fraud, which need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts. By this ruling, it declared a divorce decree passed by a US court unenforceable in India. Interpreting Section 13 CPC, the court laid down broad principles to be followed by Indian courts with special emphasis on matrimonial judgements. Likewise, in Neeraja Saraph vs. Jayant V. Saraph (JT 1994 (6) SC 488), the apex court came down heavily on the erring non-resident husband residing in a foreign jurisdiction who had abandoned his Indian wife without providing for any maintenance to her. The rulings in 1997, 1999 and 2003 clearly indicate that irrespective of any direction or order of a foreign court, the present law requires the court to act in the best interest and welfare of the minor child in child custody matters. More recently, the Supreme Court has followed a reverse trend approach in child removal matters by ordering return of the removed/ abducted child to the country of habitual residence. As of now, there have been conflicting judgements by the Supreme Court on the position of law. As a large number of NRIs now live abroad permanently, we need a composite legislation to deal with their problems so that foreign courts’ rulings are not imported to India for implementation of their rights.
The writer, a Felix Scholar, is a Chandigarh-based lawyer specialising in
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Murder for ‘honour’
Honour, reputation, status, dignity, prestige, ranking, all make stuff for motive to do away with the lives of the violators of the above kind, when they are perceived to be transgressors of these attributes, particularly by people who still live in medieval times. When perpetrators of crimes like honour killing defend and justify their act, they cannot be brought to justice in the normal laid down (due) process of law but a more stringent one. What else we should do with criminals who flaunt victory signs and tell the media for the record, “Yes, we did it and we feel we are justified in doing it?” Surprisingly, Suresh Kumar and Om Parkash admitted before media persons, including beaming TV cameras that what they perceived was not a crime but an act to defend their “honour and prestige”. The killers in Delhi admitted their guilt with no regret, no compunction, no mellowed disposition of character and conviction, but with an audacious, fairly overt and expressive body language, in justifying their criminal act, in an unabashed and shameful manner, as if to claim a trophy or a citation, for upholding the so-called honour. During the trial, these criminals will defend themselves pleading not guilty, employing various alibis, arguments and subterfuges of having been suddenly provoked, abetted, and thus having become victims of a temporary loss of sense, acting with no mens-rea but as a reflex action propelled by dyed-in-the-wool societal dire straits, blah blah blah! In the case of honour killings as a sequel to the diktats of khap panchayats in Haryana, where the entire village community spares no witness to prosecute the perpetrators of such crime, their silent support allows no other direct, oral, forensic or circumstantial evidence to be gathered. Where is the remedy? How can the legal process be reformed to bring such culprits to justice? How to cumulatively rely on (unavailable!) direct evidence, circumstantial evidence, oral testimony and forensic evidence to help prosecute such criminals? The time has come to reform the judicial process by incorporating some resilient but effective tools to bring such criminals to book. The increasing trend of electronic and print media covering such incidents promptly should come handy in leading evidence. This does amount to extra-judicial confession (Section 21 of the Evidence Act). Such TV footage and print media reports should help courts examine so far as proof, presumption, assumption, inference are concerned, particularly in the absence of any direct evidence. An extra-judicial confession, bearing on various attendant circumstances, would help courts infer the occurrence of the fact in dispute, if it is made by someone not before a magistrate or in a court, which can be proved by the witnesses who had heard the speaker’s words, constituting the confession. In Sahoo vs. State of UP (1966), when a father-in-law killed his daughter-in-law, he said to himself, “I have finished her and with her the daily quarrels,”. This statement was held to be a valid confession because it is not necessary for the relevance of a confession that it should communicate to some other person. Thus, the statements by accused persons like Suresh Saini and Om Prakash which are transparent confessions in their most naked, audacious and shameful form, can be proved in the court of law by citing media persons as witnesses. This writer is convinced that there is an imperative need for enacting a law for witness protection. Clearly, media persons’ testimony is admissible as extra-judicial confession under Section 21 of the Evidence Act. If these are insulated against any onslaught and also not likely to be won over, they will generally not turn hostile and will dispose in the court of law as independent witnesses. Not that in all cases such media persons should be cited as witnesses but certainly for cases like honour killing, when no other circumstance is obtaining, there is no harm in resorting to this alternative. As media persons recorded the first-hand account of the conduct of the culprits, they are responsible professionals and would not be counted as interested witnesses against defence or prosecution. Their testimony with their recordings, etc. can be treated as scientific evidence and this should be deemed adequate enough for purposes of bringing the guilty to book, in a manner as if an independent third party has heard the accused admitting his guilt. Some North-Eastern states have done this in some cases to prove insurgency and separatist inclination of certain very active and articulate advocates of ‘separatism’ intending carving out ethnic and political chunks out of India by waging war against it. In the case of Suresh Kumar Saini and Om Parkash, even much after the crime was committed, they were on a ‘high’. It was as if they were drugged with an acquired sense of superior sensibilities in seeking to maintain and restoring their so-called honour and to appear as heroes in the perception of their relatives, caste community and social
group.
The writer is the Inspector-General of Police, Haryana, Chandigarh
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Profile This correspondent was witness to this historic event which made national and international headlines. The second was when Subba Rao acted as an interpreter of Congress President K. Kamaraj. As is known Kamaraj could speak only Tamil and sometimes Subba Rao translated his public speeches in Hindi. Way back in 1970, with the money Subba Rao got as Director of Gandhi Darshan Train, he founded the Mahatma Gandhi Sewa Ashram at Jaura town in the Chambal Valley of Morena district of Madhya Pradesh. The Ashram was the venue of the surrender of dacoits. The success was followed by the surrender of outlaws at Bateshwar in Uttar Pradesh and Talabshahi in Rajasthan. Later, Subba Rao and his associates worked for the rehabilitation of the surrendered desperados’ families and also the families of their victims. He organised a cycle rally, covering 47 villages of Chambal Valley to identify people’s problems at grassroots level and their solutions were found at the administrative level. Presently, the Ashram organises Khadi and Gramodhyog camps, youth leadership camps, employment generation camps and programmes related to employment of rural people. The Ashram is the centre of Gandhian constructive work which includes running of charkhas in more than 300 families providing employment to more than 500 people. For the last six decades, Subba Rao, along with a group of youth, has been organising camps in every corner of India, especially in insurgency-hit regions like North East, Jammu and Kashmir and the Naxalite affected states. He met leaders of the banned organisations which have adopted violence as a form of struggle, in jails and persuaded them to follow the Gandhian path of struggle. Born in Karnataka on February 7, 1929, Subba Rao is affectionately called Bhaiji, meaning elder brother. His father Nanjundaiah was an advocate of repute, known for refusing unjust cases. Along with his three brothers, Subba Rao started singing devotional songs at the tender age of ten in the Ramakrishna Vedanta College, Malleshwaram. He donned Khadi dress. His first experience with India’s freedom movement was on the morning of August 9, 1942 when he along with other school students, boycotted classes. The young Subba Rao was caught writing “Quit India” on the street wall and roads by the police but released because he was only 13. Since then, he became active in the freedom struggle. He actively participated in the Students’ Congress activities and Rashtra Seva Dal programmes. Under the banner of a local organization, Gandhi Sahitya Sangh, he led youths to organise adult education programmes in labour colonies. Subba Rao came in contact with his mentor, Dr N.S. Hardiker, in 1948 during a camp in Chitradurga, Karnataka. After completing law graduation, he joined the headquarters of the Congress Seva Dal at the invitation of Dr Hardiker in 1951. Though the invitation was for one year, Subba Rao never went back. His major achievement was to persuade the Chambal valley dacoits to surrender in the presence of Jaya Prakash
Narayan.
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On Record Excerpts: Q: You are a Sikh. How did you come to Bangalore? A: Our family originally belonged to Keer near Lahore. My father was working in an ordnance factory there. After Partition, the family came to Delhi and then to Dehradun. My father got a job in Bangalore where I was born in 1955. Q: What about your Punjab connection? A: My maternal uncles are in Amritsar and Mohali. While in the IAF, I was posted in Chandigarh, a place of special significance to me. I met my wife there. Q: Why did you leave the IAF and join HAL? A: I joined IAF after passing out from NDA. Later, I did a test pilot’s course in Bangalore and then I went to HAL on deputation. When HAL offered me a job, I accepted it. I liked the thrill that the job entailed and the pure fun of participating in the development of something new attracted me. Besides developing indigenous aircraft and manufacturing aircraft under license from foreign companies, we at HAL are also involved in the indigenisation of various aircraft components which are also checked out during test flying. Q: Is it a thrilling job? A: Yes. Test flying teaches one something or the other everyday. You discover something new about the machine and something new about yourself also. The pilot’s skill levels are also tested. Test flying is like going up to a cliff’s edge, and coming back safely. It’s not prudent for one to proceed beyond the cliff’s edge. Otherwise, you will step into danger. As for test pilots, you push the machine to the maximum, but should not go further. Q: I have seen you flying the advanced jet trainer, Hawk. Which other planes do you fly? A: We carry out test flying in Nasik and Kanpur also, besides Bangalore. In Nasik, we have Sukhoi 30, Mig 21 and Mig 27. In Kanpur, we have Dornier, HPT 32 and Avro. I fly all these planes. Q: There have been many accidents involving Mig 21s. The media started calling it the “Flying Coffin”. Is Mig 21 accident prone? A: There is no problem with Mig 21. I have flown Migs many times for 1400 hours out of my total flying hours of 6000. As we fly Migs more than any other plane, the number of accidents recorded against the plane is higher than other aircraft. Mig sorties are also of a shorter duration as compared to other fighter aircraft. As a result, the plane has to do more sorties than other aircraft. Q: You have flown 50 kinds of aircraft. Which one do you like most? A: Every aircraft has its own charm. It is hard to single out anyone in particular. I, however, find the Jaguars the best for low level operations. For doing aerobatics there is no match for a Mirage 2000. Q: Have you flown the Tejas, the indigenous light combat aircraft (LCA)? A: Flight tests of Tejas are being carried out by the National Flight Testing Centre (NFTC). However, production of Tejas for delivery to the IAF is going to start and we shall be flying the aircraft. Q: What is a test pilot’s secret of success? A: You got to have passion for the job. Otherwise, you cannot succeed as test pilot. I shall like to fly till the day I die or my health allows me. Q: Does the stunt flying during air shows has any use for real air battles? A: At an air show the manouevring capability of the aircraft is shown. However, not all what you see has a direct relevance to its’ role in the war. Some of these stunts are carried out only for display
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