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Rahul
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Underage
& drunken driving
Army’s
image on the decline
After
the demise
Divorce:
Making of a new legislation Redesign the basic
premise of the existing Acts
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Some relief at least
The
Direct Taxes Code is an attempt to reduce the tax burden, broaden the base and simplify the complicated system. In all these set goals it succeeds only moderately. The DTC Bill, unless amended by a standing committee of Parliament, exempts an annual income up to Rs 2 lakh from tax against Rs 1.60 lakh at present. For women and senior citizens the tax exemption limit moves to Rs 2.50 lakh. The original version of the Direct Taxes Code, first unveiled in August last year, was much more ambitious in lowering the tax burden as it had proposed a 10 per cent tax slab up to an income of Rs 10 lakh, 20 per cent up to Rs 25 lakh and 30 per cent for incomes above that. This was widely hailed as a revolutionary, much-needed and long-due piece of tax reform. Besides, the DTC 1 had done away with most exemptions, which have led to needless litigation. The draft code released in June this year brought back a few exemptions, including the one for interest on a housing loan. The DTC, cleared by the Cabinet on Thursday, has dropped two controversial proposals contained in the original draft which had attracted widespread criticism: tax on withdrawals from the provident fund on retirement and charging the minimum alternate tax (MAT) from companies based on their assets. Now the MAT will be charged based on a company’s book profits. The standing committee, which is to consider the DTC Bill after it is introduced in Parliament, should try to further simplify India’s complicated tax structure considering the fact that Rs 70,000 crore revenue was locked in litigation at the end of 2008-09. As the rich and corporate taxpayers frequently resort to litigation guided by able lawyers, the government tends to further burden the honest taxpayers. The salaried class falls in this category. At present only 3 per cent of the population pays income tax. The need is to cast the tax net wider.
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Underage & drunken driving
Even
though the law clearly bars minors from driving, both the underage drivers and their parents couldn’t care less. In the light of the increasing threat posed by underage drivers the Chandigarh Police’s special drive to curb underage driving is a laudable initiative provided it doesn’t remain a mere knee-jerk response. Surprise checks and special campaigns cannot be limited to a “now and then” exercise. In order to combat the growing traffic hazard, what Chandigarh and other cities in India need are concerted efforts to check traffic violations. Drunken driving is yet another menace on the roads, especially in Delhi and its neighbourhood. Closer home in Chandigarh, a PGI study revealed that 58 per cent of accident victims admitted to the ortho-emergency wards with serious injuries were driving under the influence of alcohol. It also found that a large number of victims were not wearing protective equipment like helmets. How youth love to flout rules is also evident from the news report that youth in Chandigarh are ready to pay the penalty but not wear helmets. While there is an urgent need for more stringent laws as well as the proper implementation of the existing ones to ensure the compliance with traffic rules, the licensing authorities too must bear part of the blame. More often than not licences are issued to underage drivers that too without a proper driving test. Of course, ultimately the onus rests with parents who must be held accountable and penalised with deterrent punishment for their ward’s actions. Convenience cannot be an excuse to allow teenage children to drive. Keeping in mind the assertion of a member of the Punjab State Road Safety Council that teenage drivers are likely to be more involved in accidents as well as in traffic violations, parents should duly caution their children and instil civic sense and respect for rules among them. A nation that has an unenviable record on road accident fatalities must make road discipline a habit and a way of life. Saying a firm no to underage and drunken driving would be the first step towards it.
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It is easy — terribly easy — to shake a man’s faith in himself. To take advantage of that to break a man’s spirit is devil’s work. — George Bernard Shaw
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Army’s image on the decline Hardly
a week goes by when the Army does not find a mention in newspaper columns about alleged violations of human rights, corruption and other misdemeanours. A headline in this newspaper last month read: "Lt-Col gets three years in milk scam". The trend can no longer be passed off as a mere aberration. Fortunately, the Army Chief, Gen VK Singh, has admitted to the defects in the internal health of the Army. While no stone is left unturned in improving professional excellence, not enough is done to restore the high standards of ethics, leadership and man-management. Still the Army will be voted the best in the indices of loyalty, integrity and sacrifice among the civilian services and other professional bodies. A newspaper survey of 500 persons in Mumbai, Delhi and Bangalore last Independence Day found that Indians still saw the security forces as the institutions that safeguarded their freedom the most. As the vertebrae of these institutions, the Army remains staunchly apolitical and firmly under civilian control which itself is rapidly declining in matters of probity and governance. For that reason, the Army retains its title as the last bastion of democracy. During the Independence Day speech last month, for the first time, Prime Minister Manmohan Singh surprisingly omitted the traditional words of praise for the security forces. Starting with Tehelka and Coffingate, the inventory of corruption cases now includes scams in rations, clothing, medicines, canteen stores, fuel, oil and lubricants, land, military farms, recruitment and so on. An aggressive media has launched sting operations to trap on camera officers taking bribes. The contagion has spread to defence accounts where false claims have been made good. For the first time, three Lieutenant-Generals and one Major-General were implicated in a shadowy land deal, and now the first serving Lieutenant-General is to be court-martialled. Former Army Chief Gen Deepak Kapoor admitted that such cases dented the image of the Army but maintained that these were aberrations that needed to be corrected. The wheels of justice move fast within the Army compared to outside the military where it takes decades. The first tinkering by the Army in internal reforms took place after Tehelka in 2001. At least 20 officers of Brigadier rank and above were indicted in various corruption-related cases while others were being investigated. During the last three years 10 officers of General rank have been involved in cases “unbecoming of the conduct of officers”. Disciplining the Army within its internal legal system is an ongoing process with the Summary Court Martial (SCM), most widely used for this purpose. Between 1999 and 2004 an average of 995 SCMs were held every year. According to The Hindu newspaper, 1215 soldiers were court-martialled in 2000, 1034 in 2001, 1031 in 2002, 945 in 2003 and 87 in 2004. Last year, around 30 officers were convicted through court-martials. According to CBI sources, three senior officers were charged in a CBI court with purchasing substandard coffins (Coffingate) for carrying bodies of Army personnel killed in the Kargil war. In 2003, the CBI filed an FIR for the first time against Defence Minister George Fernandes and former Chief of Naval Staff Admiral Sushil Kumar in the Barak missile deal, which was one of the 15 defence contracts that figured in the Tehelka tapes which was entrusted by the government in 2001 to the Justice K Venkataswamy Commission for enquiry. Arms purchase has become the means with which to attack the previous government, said the Vice-Chief of Air Staff, Air Marshal Pradeep Borbora. Besides corruption, sullying the image of the Army are two other issues: fake encounters and allegations of human rights violations. After the famous rigged Siachen encounter and the ketch-up Colonel case, the most recent development and one of the triggers for the present unrest in J&K is the Machchal episode where an Infantry battalion on the LoC staged an encounter involving three local persons. Gen V.K. Singh has promised to take exemplary action against the culprits. This must be made public. Over the years, the performance of units has been judged by body and weapons count during its tenure in a counter-insurgency area. This yardstick is followed the world over with local modifications. A unit is awarded the COAS citation for the best battalion based on this criterion as also its record in human rights and winning hearts and minds. This measurement of performance requires greater oversight to prevent its misuse. The health and vitality of the Army must be judged by the transparency and probity of its performance in internal security operations. By all accounts, the Indian Army's human rights record is about the best among the armed forces the world over. The Army's figures relating to alleged human rights cases are revealing. Of the nearly 3000 cases registered since 2000, only 4 per cent were proven true and offenders cashiered, jailed or “disciplined” within months compared to decades taken in civil courts. What are the causes for the declining image of the Army. One of the key reasons is the massive expansion from 300,000 in 1947 to a million plus now. The old days' image of the Army, when soldiers could do no wrong — an officer's cheque dishonoured by the bank was sufficient reason for him to put in his papers — is gone. Soldiers were role models for values in society. The motto of service before self and the pledge that the safety, security and welfare of “your country” came first, always and every time, followed by the well-being of men under command. "Your own" comfort and safety came last always and every time. These high principles are not easy to emulate today when the Services do not draw the best material in the market, resulting in a shortage of 12,000 officers. The Sixth Pay Commission and the AV Singh Committee reports I and II, enhancing the pay and rank structure to ensure a younger Army, have helped, but restoring the standards of the past is near impossible. Today's Army is professionally much richer, and the officer corps more worldly-wise than two decades ago. The platoon, company and battalion commanders are the backbone of the Army as they lead the firefights along the LoC on a daily basis. The Indian Army is a highly committed institution and has not received the right attention from the media, which has excelled in highlighting merely the negatives. The problem in the Army is the erosion in higher leadership and intellectual dishonesty that has crept in even in the promotion system. Promotion of mediocrity through seniority must be stamped out. Scouting for talent and boldness must be the new mantra to produce the generalship the country deserves. Army chiefs have come and gone. Many high-level studies have led to doctrinal improvements like "cold start". It is high time we started correcting the deviations in leadership norms without treating them as aberrations. Let the Army not be in denial mode over the loss in the standards but initiate measures top down to restore its image in the eyes of the people and its own soldiers. The government and society must chip in. Still, the Army will have to do much
more.
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After the demise AFTER the demise of our pet dog “Murphy”, an Alsatian, our daughters felt that this time we should rear a pair. The idea was that each one needs a companion and a family. Therefore, we brought a pair of handsome Great Danes. Docile and playful --- the male was named “Beyond” and the female “Affinity”. Fond of taking morning walks, “Beyond” moved majestically like a king. He had great built, height and coat. He never troubled anyone, including animals, rather was oblivious of their presence. Whenever my daughter came back from office, he would recognise the sound of her car and would rush towards her with such great momentum that she nearly fell down due to the impact. I used to marvel at Newton’s 2nd law of motion which equated force with rate of change of momentum and with “Beyond” possessing a huge mass and great velocity the momentum and consequently the force of the impact was immense. And then, “Beyond” became the father of seven pups. It was a treat to witness “Affinity’s” delivery. She would wipe and clean the pups with her tongue with great precision. Out of the seven pups, only five could survive and our daughters named them Absolute, Felicity, Awesome, Virtue and Precious. As time passed by, the pups grew older and bigger and their parents advanced in age. “Beyond” developed heart trouble at the age of seven. Many restrictions were imposed on his diet and movements. But he was a perfect gentleman with all the good manners and etiquettes. Obediently, he would extend his leg where drip had to be applied or would lie down when his stomach had to be pierced. He was in great pain and his eyes clearly showed this. He too wanted to run, play and bark along with his progeny but we discouraged it as this could precipitate heart failure and being disciplined he understood it and abided by it. Twice his heart stopped functioning and was revived. One morning he wan’t too well. While we were in our offices the news came that he was on his last breath. We all came running back home. He was lying down but on seeing my daughter he leapt on his feet and then silently collapsed in her lap. We lighted candles every day at the place he was buried and remembered him as a “perfect gentleman” – never did he lose his temper and had the best etiquettes and manners which we humans are expected to practice. I was reminded of the famous play “Titli” which Saba Zaidi wrote for Doordarshan in which she differentiated between a human being and an animal. She said humans had etiquettes, animals did not. But “Beyond” proved her wrong. In his death we lost a perfect gentleman having the best etiquettes and manners. I often wonder how many of us profess the manners, courtesies and etiquettes which Saba was searching in us humans. Indeed, we still have a lot to learn from
animals.
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Divorce: Making of a new legislation The Law Commission suo motu took up the issue, examined the extant legislations and a number of judgments of the Supreme Court and high courts and was of the view that “irretrievable break-down of marriage”should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. Wherever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu Marriage Act in 1976 more than covers the situation. “Mutual consent” requires both parties’ consent and if one or the other does not cooperate, the said ground is not available. “Irretrievable breakdown of marriage”, however, is a ground which the court can examine and if it infers, on the facts of the case, that the marriage cannot be repaired/ saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties, but on the court’s inference on the facts pleaded that the marriage has irretrievably broken down. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated to destroy a marraige. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping in view the physical and mental condition of the parties, their character and social status. A too technical and hypersensitive approach would be counter-productive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. They have to deal with particular men and women before them. There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully. Where wedlock has become a deadlock since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in Krishna vs Som Nath case has held that marriage is irretrievably broken and it is in the interest of justice that a decree of divorce be granted, so that both the parties can live in peace. In Vinita Saxena vs Pankaj Pandit case, it has been held that the marriage between Vinita Saxena and her husband Pankaj Pandit was dissolved by an order of the Supreme Court. The marriage between the parties lasted only for five months. Both of them were living separately for over 13 years. Marriage also was not consummated. The wife filed a petition for the dissolution of marriage on grounds of physical and mental cruelty and insanity on the part of the husband. The trial court dismissed the petition. The high court also dismissed the appeal. Allowing the wife’s appeal, a Supreme Court Division Bench, speaking through the writer of this article (as he was the Supreme Court Judge then) held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband and wife can never ever stay as husband and wife and the wife’s stay with the respondent husband would be injurious to her health. Accordingly, a decree of divorce was granted in favour of the wife against the husband. Further, all such matters as foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant, but merely as a matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged. Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take note of that fact and it would be harmful to society and injurious to the interest of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage. Public interest demands not only that the married status should as long as possible be maintained, where a marriage has been wrecked beyond the hope of salvage, but also lies in recognising that fact. The court’s power to grant divorce on the ground of irretrievable breakdown of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties. There is no use of keeping two persons tied by the matrimonial relationship when they cannot live peacefully. A balance needs to be maintained between protecting the sanctity of the institution of marriage and the individual interests of aggrieved spouses. True, in India which is deeply embedded by moral and cultural values, emulation of Western principles in matrimonial matters is not appreciable and should not be adapted with ease. The new Bill should have adequate safeguards. The courts may consider the following factors for granting divorce once it is brought on the statute book: Age of the spouses; duration of stay in matrimonial home; non-consummation of marriage between the parties; long period of stay from each other; both parties crossed the point of no return; workable solution not in sight; waging of legal battle for a longer period; consideration of educational qualification of the spouses; and welfare of children and providing for their care. There is an urgent need to set up family courts in every district for adjudicating all kinds of matrimonial disputes. Sadly, even after 26 years of enactment of The Family Courts Act, 1984, only a miniscule number of such courts have been set up, that too, only in metropolitan cities. There must be marriage and divorce laws not only among Hindus, but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of younger generations who receive higher education and have more cosmopolitan ideas of the new world. Times have changed and the people must move ahead. Harmony at home and peace at work is the most important ingredient of successful Indians in the 21st century. The writer is a former Judge, Supreme Court of India and Chairman,
Law Commission of India
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Redesign the basic premise of the existing Acts THE objective of the Marriage Laws (Amendment) Bill, 2010, is to “mitigate hardship” caused to couples caught in marital conflict situations. However, there are two specific counts that need serious consideration before the Bill is adopted by Parliament. If the principle of irretrievable breakdown of marriage is understood to mean that divorce could be granted in case where there is no possibility of retrieving a marriage, such a principle is not entirely new as it already exists in the present provisions of the Act of 1955. In this respect, we need only to recapitulate the provision of Section 23 (2) of the Act, which commends the court “in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about reconciliation between the parties.” If the court fails to do so, then it could consider the dissolution of marriage under Section 13 of the Act, which spells out specifically the fault grounds, including the principal ones such as adultery, cruelty and desertion. Besides, the breakdown principle, slightly separated from the notion of fault is also implicit under the Act of 1955 after the amendment of 1964, which inserted a new Section 13 (1A). Under this section, a petition for dissolution of marriage is permitted at the instance of “either party to marriage” if “there has been no resumption of cohabitation” or “restitution of conjugal rights” between the parties for two years (reduced to one year after the 1976 amendment) or upwards after passing of a decree for judicial separation or restitution of conjugal rights in a proceedings to which they were parties. Secondly, we need to ask how and in what manner the incorporation of the principle of irretrievable breakdown of marriage as another ground for divorce, as distinct from the existing grounds of divorce based on the fault principle, going to mitigate the hardship of the couples in conflict. In this respect, we may spell out the following functional and differentiating perspective of the breakdown principle. In the application of the principle of irretrievable breakdown of marriage, unlike in the case of fault-theory-based-grounds, the core concern of the court is not to find out which one of the parties to marriage is guilty and which one of them is innocent. This is so because in close marital relationship no one party can be said to be totally guilty or innocent. Either both the partners are guilty or both are innocent; the difference between the two only being of the degree. The purpose of the breakdown principle is neither to make dissolution of marriage easy nor to make it unrealistically difficult. In the language of the British Law Commission on Reform of the Grounds of Divorce, principally, the objective of irretrievable breakdown of marriage 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 humility. In sum, the principle of irretrievable breakdown of marriage bears a distinctive perspective, which is unique functionally and in principle. It is quite different from the perspective of divorce grounds under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, which are essentially based upon the fault principle. It would, therefore, not be prudent to introduce irretrievable breakdown of marriage as a ground of divorce, or another ground for divorce by partly amending the two Acts. What is truly needed is to go in for redesigning the basic premise of the two existing Acts in which all the present grounds of divorce based on the fault principle shall be replaced by one single principle of irretrievable breakdown of marriage as the ground of divorce, instead of a ground or one of the grounds. However, the existing grounds shall not become totally redundant. Thenceforth they shall serve as, in the language borrowed from the Report of the Moral and Social Welfare Board of the Church of Scotland presented to the General Assembly on May 2, 1969, cited with the approval of the Supreme Court of India Bench in Naveen Kohli case (2006), “Matrimonial offences (that) are often the outcome rather than the cause of the deteriorating marriage.” The writer, a former Professor and Chairman, Department of Laws, Panjab University, is currently Director (Academics), Chandigarh Judicial Academy
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THE Marriage Laws (Amendment) Bill, 2010, seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to provide irretrievable breakdown of marriage as a ground for divorce. It comes more than a year after the recommendation of the Law Commission of India (then headed by this writer) in its 217th report in March 2009.