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A Tribune Special
Pre-nuptial pacts: Unsuited in Indian context |
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Killings in the khap belt
Profile
On Record
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A Tribune Special
The Council’s decision has been welcomed by many, though there are a number of people who have expressed reservations about it. The main objection is that the IITs should concentrate on their core strength, i.e. science and technology. Initially, the IITs wanted to start medical courses without seeking clearance from the Medical Council of India (MCI) on the pattern of the All India Institute of Medical Sciences (AIIMS) and the Post Graduate Institute of Medical Education and Research (PGIMER). The Union Health Ministry did not agree and was of the view that it would not be advisable to start medical colleges outside the MCI’s regulatory control. It also suggested that the IITs should design doctoral courses on the interface of technology and medicine such as bio-medical engineering, bio-technology and e-health in consultation with the AIIMS, the PGIMER etc. The IIT Council agreed to the MCI framework for a course that leads to the practice of medicine (i.e. MBBS). Thus, the IITs can start medical courses after the amendment of the Institutes of Technology Act. As a matter of principle, the objection against the IITs starting medical colleges is not sustainable. Knowledge creation and dissemination is not the sole preserve of a department or an organisation. It is a bane of our higher education system that it encourages compartmentalisation. With increasing use of instrumentation, medical science is becoming technology-driven as also with the growing applications of physical and computer sciences. There is a general impression in medical colleges that physics and mathematics are not so relevant. One could perhaps agree with this viewpoint if the objective is to produce doctors for healthcare of ordinary ailments. But if the vision of India moving into the frontiers of research in medicine and bio-sciences is to be realised, all these subjects must be treated as being very relevant. In recent times, physical scientists and engineers have also realised the relevance of studying biological systems. It is noteworthy that a number of Nobel Laureates in medicine were/are not medical doctors. Thus, there is a perceptible world-wide shift towards inter-disciplinary education and research. Medical education in India remains very much controlled by regulatory bodies, limiting the scope for innovation and change. Intervention by good institutions like the IITs may act as catalyst for bringing about change. Moreover, when medical colleges can be started by private organisations not exactly known for education, why should IITs, or for that matter any such institution, be prevented from doing so? The most important point is whether and when any IIT should take such a bold initiative. Should the IITs not concentrate on their existing activities and strengthen programmes in the emerging areas of science and technology? It is also well known that these institutions are facing several challenges, especially in respect of faculty and getting adequate number of good students for research and development in engineering disciplines. Much investment and quality manpower are needed to strengthen the IITs to stay ahead. A few IITs have started courses in economics and management. It would be desirable to benchmark all such courses with those of the top institutions of India. Recently, there was news on the world ranking of universities. Sadly, all Indian universities, including the IITs, appear to have slipped down. The IITs are known for quality education and this tag should not get compromised. Establishing and managing a first-rate medical college along with a big hospital is a complex task. If an IIT sets up a medical college, the public would tend to compare it with the AIIMS and the PGIMER. The IITs would need to structure their plans accordingly and carve out niche areas where they would like to excel. Another significant point is the level of public interface with a medical college. According to the MCI guidelines, for intake of 50 students per year in the MBBS programme, a 300-bed hospital is needed. Any good medical college gets a few thousand patients every day. The IITs, being government institutions, would not be able to restrict public access to the hospital, given the poor quality of medical facilities where some of the IITs are located. This is bound to have adverse impact on the closed campus life that the IITs have. Besides, emergencies like epidemics and pressure from the local public and the administration would continue to bother the IIT administration at the highest level. In short, the public interface may divert the attention of the institute’s authorities. Another aspect is the level of investment, both capital and recurring. The old IITs having sufficient land and good infrastructure, capital investment in setting up of a good medical college may be about Rs 300 crore. Additional budget allocation would be required on year-to-year basis for running and maintaining the college. Would the Central Government finance them? While it is desirable for the IITs to start medical programmes, it must be done with due diligence and detailed examination and not at the expense of the existing activities. They must carry out a detailed SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis and prepare an action plan to meet the challenges. A few old IITs are still reeling under the pressure of looking after the new ones, started in haste without adequate preparation. Such haste in respect of medical education may end in disaster. The IITs could consider starting with a few high-end courses in bio-sciences and related subjects and set up the relevant departments in addition to the existing Biotechnology discipline. They may also have collaboration with a medical college or research institute as suggested by the Union Health Ministry. Based on their experience, they could move gradually towards establishing a medical college as and when they are fully prepared for it. An enabling provision should, therefore, exist in the Institutes of Technology Act, and the IIT Council has rightly decided to amend the Act. This issue also raises another question of vital significance. Why are regulatory bodies not coming up with reforms in medical education and research which aim at innovation and inter-disciplinary teaching and research? This critical sector needs massive overhauling. The Central Government should set up a broad based committee to look into all these aspects to suggest a comprehensive action plan for revamping the medical education and multi-disciplinary research. Institutions like the IITs, the AIIMS, the PGIMER and a few other research institutes can take the lead and show the way. One hopes that the HRD Ministry’s decision to allow the IITs to set up medical colleges would generate a debate leading to the much-needed reforms in the area of medical education and research for the good of our
people.
The writer, a former Chief Secretary of Haryana, is an alumnus of IIT Kanpur and Kharagpur. He is currently the State Election Commissioner, Haryana
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Pre-nuptial pacts: Unsuited in Indian context
If a pre-nuptial agreement is sought to be executed by the parties to the marriage, principally, the contents of the same should not be opposed to public policy, should not violate the principles of natural justice, should not be fraudulent in letter and spirit and, of course, recognise rights of both the parties. Furthermore, it is anticipated that the parties will be required to demonstrate that the agreements were entered into freely and voluntarily without any coercion, both the parties had acted on competent legal advice and that full disclosure was made of all the relevant, financial standing and other attendant circumstances. Possibly, if these main ingredients stand incorporated in the said pre-nuptial agreement and if the same is tested in a court of law, it can stand judicial scrutiny depending on the facts and circumstances of the case in hand. This prerogative shall depend entirely at the court’s discretion. Given the Indian social milieu, this is a highly debatable issue. Article 142 of the Indian Constitution vests the Supreme Court with vast inherent powers. It provides that the Supreme Court may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it. For instance, the concept of irretrievable breakdown of marriage is not recognised as a ground for divorce under the existing matrimonial laws. However, over the years, the apex court has been recognising irretrievable breakdown as a ground for divorce, by using its inherent powers in appropriate cases. That too, when prolonged messy matrimonial litigation reaches the last court of appeal. If the apex court can recognise irretrievable breakdown as a ground for divorce in India, it may well be the case that the apex court in the time to come can possibly adjudicate upon the validity or enforceability of pre-nuptial agreements or lay down suitable comprehensive guidelines on the subject in a suitable case. There is negligible case law on the subject in the Indian jurisprudence. In India, there are no consequences on the marital regime in India, in the absence of a pre-nuptial agreement so long as a valid marriage has been performed between the parties to the marriage. It is very important that the marriage should be duly registered in terms of the relevant matrimonial legislation as applicable to the parties. This aspect of the matter is of immense concern in international marriages where parties have substantial assets in multiple jurisdictions. In the cross-border perspective, queries are raised about the impact of child custody provisions in a pre-nuptial agreement in the Indian context. The controlling consideration governing the custody of the children is the welfare of the children and not the parents’ rights. Significantly, what is more prevalent in India is the practice of post-marriage settlement, in the event of divorce proceedings, allied matrimonial litigation especially when criminal proceedings have been initiated by either of the parties to the marriage. The Supreme Court in two decisions — B.S Joshi and Others vs. State of Haryana and another (2003) 4 SCC 675 and G.V Rao versus L.H.V Prasad and others (2000) 3 SCC 693 — has eloquently emphasised the need to encourage court settlements in genuine matrimonial disputes. The apex court concluded: “…that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.” There is far greater emphasis in the Indian context to settle post-marriage matrimonial disputes in the event of divorce-related litigation, rather than focusing on pre-nuptial agreements. Traditionally, Indian society views marriage as a sacramental union and not as a contractual relationship. Of course, media reports in recent years indicate that a miniscule percentage of affluent urban couples have at times opted for executing pre-nuptial agreements. Typically, in Indian society, at the first blush, even the thought of exercising a pre-nuptial agreement would seem abhorrent, rather face stiff resistance from family members. A matter agitating the validity of an elaborate memorandum of family settlement in ongoing divorce proceedings reached the portals of the Supreme Court of India. This is the reported case of Ravi Singhal and Others vs Manali Singhal and another (2001) 8 SCC 1. The judges, without expressing any opinion on the merits of the issue, remanded it to the single judge as a court of first instance for a detailed consideration of the matter. The Court of Appeal of Singapore in the landmark case of Kwong Sin Hwa vs Lau Lee Yen, 1993 1 SLR 457 concluded: “… the law does not forbid them to agree as to how they should live and conduct themselves as husband and wife, when and where they would commence to live as husband and wife, when they would consummate their marriage, when they would have a child or children and how many children they would have. Such agreements made between husband and wife are not illegal or immoral or against public policy.” Lord Justice Thorpe of the British Court of Appeal, held in Radmacher (formely Granatino) vs Granatino (2009) WLR (D) 227 observed at para 27 “…due respect for adult autonomy suggests that, subject of course to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxiety and expense of a submission to the width of the judicial discretion…” Even though the judgment is hailed as a victory for pre-nuptial agreements in Britian, the Judges have made it clear that it is for Parliament and not the Judges to change the law, but that the courts should continue to exercise discretion to uphold pre-nuptial agreements in certain circumstances. The ruling has, however, emphasised the long overdue need for the government to introduce new legislation to end the present uncertainty and make pre-nuptial agreements binding. This ruling stands challenged before the Supreme Court of England and Wales. The judgment is still awaited. In sum, in the present day and age, even the new India in the 21st century is not ready to usher in, leave alone to accept diluting the traditional sacramental notion of marriage into a somewhat commercially sounding agreement called pre-nuptial agreements. Rightly
so.
The writer, a Felix Scholar, is a Chandigarh-based lawyer specialising in Private International Law
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Killings in the khap belt
Today, the traditional rural structure is cracking up under the impact of modernisation, leading to increased intimacy between the two sexes in villages. So long as these relations remain under wraps, there is no problem. However, when it takes the form of marriage, this is taken as a violation of social mores which invites barbaric edicts. There has been upsurge in such killings in the khap belt around Delhi of late, capped by the murder of two cousin sisters along with one’s husband hailing from village Wazirpur in Delhi state. The fear of killing makes couples flee. About three dozen couples of Haryana are now under police protection. The problem can be sorted out through dialogue, keeping in view the need for a harmonious blend of tradition and modernity, so essential for the onward march of society. However, this does not seem to be possible. Khap ideologues often refer to Vedic culture in support of their contention. There was the tradition of swayamvar in the Vedic era permitting girls to choose their spouses. Society as depicted in Rig Veda is much more liberal and open than the suffocating social set-up khap custodians wish to perpetuate. The temples of Khajuraho and Konark, too, are a part of Indian culture. The Arya Samaj has been the most powerful reform movement in the khap belt. Swami Dayanand, its founder, characterises choice marriage as uttam (best) in his book Satayarth Prakash. However, choice marriage invites the wrath of khap leaders who mostly owe allegiance to the revered Swami. The court judgment awarding exemplary punishment to the accused for murdering a couple in Haryana for marrying within the same gotra has proved to be a threshold. This has caused panic among khaps which are agitating for an amendment in the Hindu Marriage Act imposing a ban on the same gotra and same village marriages. The khaps over several centuries have portrayed the violation of their marital taboos as sinful which deserve stringent punishment, generating, in turn, a culture of intolerance. The line of demarcation between intolerance and violence is thin. Families with deviant girls become a target of taunts and calumny, making their living in a village unbearable. They carry the stigma of social dishonour which is shed off only through the alchemy of murder which is executed as a divine duty and killers feel proud of it. It is the khap leaders who have let the genii out of the bottle and there is no holding it back now. The present posture of khap leaders that they had no hand in the killings is untenable and totally unacceptable. It is they who have built the collective psyche of intolerance which leads to violence. In some cases, they have a direct hand or provide legitimacy to unlawful acts. Recently, it was the provocative statement of the Banwala Khap Pradhan which prompted some khap mobsters to lynch Ved Paul Mor in Singhwal of Jind district when he went there to recover his wife along with the warrant officer of the Punjab and Haryana High Court and policemen. A khap leader in the Sarv Khap Panchayat held at Kurukshetra on April 13 stated on record that those who violated marital norms would be put to death. It was decided in this conclave to raise donations for the help of the killers in the well-known Manoj-Babli murder episode. Alarmed at the ghastly turn taken by such killings, the Union Government has been contemplating a more stringent law to curb the menace. The initial idea of penalising all the members of a khap for such an act is neither practical nor desirable. The entire community as such cannot be held responsible. Moreover, there is no formal membership of a khap. There is no elective principle in it. Its headship is either hereditary or self-proclaimed. It is more of a crowd collected on a particular occasion than a well structured organisation. Women and weaker sections, on which its axe often falls, have no say in it. Its utility is now largely undermined after the advent of the constitutionally elected panchayats in which women and weaker sections have due representation. Khaps in Haryana and elsewhere did take up important social issues in the past. A panchayat in village Barona of Rohtak district held in 1911 laid emphasis on the spread of education which, over the years, led to the establishment of Jat educational institutions in Rohtak. Another gathering in village Sisana in the Sixties had asked to curb extravagance on marriage and other ceremonies. Since then, marital affairs have been the major area of operation of these caste panchayats. Momentous issues like the virtual collapse of health services and school education in villages, foeticide, the use of intoxicants among youth, escalating crime graph, widespread corruption, crisis in agriculture and a host of such issues wait for the crusaders and the khaps have merrily turned their backs on them. In fact, this age-old institution which played a constructive role in medieval times has now become a cover in the hands of some dominant elements to perpetuate their hegemony in the rural hinterland. The ends of justice would be met if the contemplated law brings into its ambit all those who glorify killings along with the actual perpetrators of the crime and infringement of any of the rights of a citizen guaranteed under the Indian Constitution. The enactment of a stringent law and its effective enforcement are necessary but not sufficient. A collective psychosis has been spawned by the khap elements over the issue of tradition and there is need to build a counter-culture to combat it. There is an urgent need to build a vibrant civil society, fragile in the khap belt at present to usher in an inclusive and humane social
set-up.
The writer, a noted sociologist, is currently Member, Haryana Administrative Reforms Commission, Chandigarh
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Profile Patar’s collection of verses, Lafzan Di Dargarh (Shrine of words), was adjudged immortal in literature. With this work comes to the fore the poet’s concern for poetry. In this era, when human feelings and emotions seem to have reached a dead end, only poetry holds out the hope of their retrieval. Engaged further in dialogue with the self, the poet presents nature as an entity that deals more humanly and with human beings than does civilisation. The collection also includes a poem, Aia Nand Kishore (Nand Kishore has come). Nand Kishore, a migrant from Bihar, comes to Punjab to make both ends meet. He brings his family along with him. He puts his daughter, Madhuri, in a village school. She does well in the school. He spends a lot of money on teaching her English. Further layers of the linguistic problem are revealed and explored in Patar’s poem on the death of the Punjabi language. It begins as follows: My language is on the verge of death Each word, each sentence gasps for breath Recalling the factors, which have landed this language into this pitiful state, the poet becomes fatalistically pessimistic about it future: In such a hopeless situation Only God may save my language! Of my language, How can even God be the savior? Deserted by hungry generations, God Himself gasps for breath. Under His benign protection Lies my language, gasping, dying, By God! On the verge of death lies my language Patar was born in Patarhan village from which he derives his pen-name. His father, Harbhajan Singh, had migrated to Kenya to eke out a living and would return home for a short break once in five years. The family he left behind included his wife, along with Surjit and his four older sisters. Surjit had to take care of his mother and sisters. Young Surjit dreamt of becoming a musician, perhaps, to please his father, who was a deeply religious person, adept in singing Gurbani and providing solace to the family. These emotions, however, lie at the foundation of the poetic universe that Surjit created from a school near his house. Later, he got admitted as a science student in a college in Kapurthala. It did not take him long to get disenchanted with science subjects. The following year, he took up arts. Under the guidance of his teacher, Surjit Singh Sethi, he began taking part in literary activities which imparted creative resonance to his sensibility. Patar began writing at the time when the Naxalite movement was on the rise in Punjab. After an early uprising, it was brutally suppressed by the Punjab government. Rather than finding fault with one side and exonerating the other, Patar articulates the dilemma in terms of a harrowing personal experience. In fact, this inner dialogue serves as the foundation for his poetry. Hints to this effect appear in his early poems, but they were fully developed in subsequent decades: I keep tracking sadness all the time, Each time the track gets close to my mind, I go where the blood-drops take me And they end up in the same dungeon In which prevails the darkness of my mind, Many times I get hold of the culprit’s hand And each time I see it as my own hand. Terrorism in Punjab had greatly worried Patar. Referring to yet another well-known poem written during terrorism days, he said: “The incident of Hindus being pulled out of a bus and killed perturbed me. And I thought with horror that if the much-loved Punjabi poet Shiv Kumar had been among the victims, this would have been his fate too”. Among Patar’s works are Hawa Vich Likhe Harf (Words written in the air), Birkh Arz Kar (Thus speaks the tree), Hanere Vich Sulghdi Varnmala (Words smouldering in the dark) and Lafzan Di Dargah (Shrine of words). He has also translated into Punjabi the three tragedies of Garcia Lorca, the play Nag Mandala of Girish Karnad, and poems of Bertolt Brecht and Pablo
Neruda.
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On Record Banerjee, currently responsible for training (“Learning” in the company parlance) in Mind Tree, sees a challenge in the US’ protectionist stance and is confident that the Indian IT sector will be able to rise to the challenge. The corporate heavyweight, who graduated in Electrical Engineering from IIT Delhi, and did his masters in Computer Science in IIT Kanpur, shared with The Tribune in Bangalore his “personal views” on the IT industry in India and the US stance against outsourcing. Excerpts: Q: Did the Ohio ban on outsourcing of government projects and President Obama’s threat against US companies creating jobs in other countries make the IT community in India nervous? A: No, it has not made us nervous in anyway. We are not certain how far this threat is real. A lot of heat is generated when there is an election. It is the same in our country as well. Q: Will the American companies continue to hire Indian IT companies despite the US government actively discouraging them to do so? A: The American companies are not doing any charity to Indian companies. They are hiring Indian IT companies for developing solutions for them because it is a business-wise decision. If warning the US companies about ending tax breaks, Obama wants to crackdown on tax loopholes allegedly exploited by them, he should do so because it would be the right thing to do. India, too, should take action against any Indian or foreign company that evades tax. Q: Given the fact that the Indian IT companies generate most of their revenue from the US, how will it affect India if your US clientele shrinks? A: Back in the 1980s, one Indian company was sending people to the US for IT projects. They were given shared accommodation and shared car and did work for much lesser cost than what an American IT professional would charge. This was “body shopping” in the true sense of the term. But, after a while, the US government plugged that scope. This actually did a world of good to the Indian IT industry because it prompted us to build our own capability and we fine-tuned our engineering and project management skills. In case another crisis is thrust upon the Indian IT industry, I am sure, we shall emerge stronger from the crisis. Q:
How can the Indian IT industry go about doing that? A: We are already expanding into new geographies beyond our traditional business areas. US or no US, the IT industry of India is going to face tough competition in the years to come. Other Asian countries as well as those from Eastern Europe are moving into this sector very fast. Our profit margin will go down in any case. The Indian companies are looking at the domestic market also. The domestic market did not interest the companies before because the profit margin was less. But companies are now waking up to the potential of the domestic
market.
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AN interesting report has appeared in The Tribune (September 11, 2010) that the Indian Institutes of Technology (IITs) could start degree-level medical courses. This is one out of a number of decisions taken by the IIT Council, an apex body headed by the Union Minister for Human Resource Development. This would have a far-reaching impact on the academic activities of the IITs.
Pre-nuptial
Honour
Honoured
Kalyan Banerjee