The Tribune, Chandigarh, India

Helping the enemy
TV channels have lessons to learn

The testimony of 26/11 co-accused David Headley in a Chicago district court is not only a blow-by-blow account of the Pakistani perfidy, but is also an object lesson in how we ourselves conceded many self-goals. He has described how the Lashkar handlers sitting in Pakistan watched the 2008 Mumbai carnage live on Indian TV channels and guided the attackers on the phone.

Not only that, they also asked them to change their tactics to challenge the advancing commandos. Hordes of cameramen were zooming in on the buildings under siege. No commando movement was hidden from them. The breathless reporters ostensibly trying to keep the public informed were indirectly helping the enemies of the nation.

Something similar had happened during the 1999 Kandahar plane hijack also. The hijackers were later found to be exulting that the Indian TV channels were focussing non-stop on the misery of the people whose relatives were on board the Indian Airlines Kathmandu-Delhi flight IC814 that was commandeered to Amritsar, Lahore, Dubai and finally Kandahar in Afghanistan.

The more their sorry plight was beamed, the more the government came under pressure to accept the demands of the hijackers. Thus, the freedom of the Press became a handy tool for the terrorists to blackmail the country.

A lot of debate has taken place on these issues over the years and today the TV coverage is not quite as chaotic as it used to be. But a lot still remains to be done. Much needs to be learnt from the American media which enjoys far greater freedom than the Indian counterpart but when it comes to national security and interests, it never loses its sense of proportion and balance.

The mad race for “exclusives” in search of TRP points — as the film “Peepli Live” presented – should not be allowed to degenerate into a free for all that can put innocent lives at risk.

Academic decay
Students’ future is at stake

Time and again irregularities have surfaced in privately run educational institutions in the northern region, exposing chinks in the regulatory mechanism. Punjab has seen a haphazard growth of engineering, management, B.Ed and nursing schools and colleges.

Since the government institutions are unable to meet the demands of a growing population’s hunger for technical education, the private sector has a complementary role to play but under a watchful eye.

There is a huge demand for nurses all over, particularly in the Western countries. Given the craze for foreign migration among Punjabi youth, it is but natural that the nursing course should attract so many applicants.

On the one hand is the large unmet demand for nurses and on the other are greedy managements of private nursing institutions which not only charge hefty fees from candidates — mostly from poor and middle-class families — but also accommodate many more students than permitted by the rules and available infrastructure.

The regulatory body, the Punjab Nurses Registration Council, has not only failed to check irregularities but also tried to shield some shady institutions from the scrutiny of public-spirited citizens seeking information under the RTI Act.

There is laxity in regulating government educational institutions too. Political patronage often drives some of those running educational institutions to break or bend the rules for convenience or personal gain. It is shocking how the Vice-Chancellor of Maharshi Dayanad University, Rohtak, over-ruled the Head of the university’s Law Department and allowed a girl to appear in an LLB examination even though she did not meet the mandatory condition of attending 70 per cent of the class lectures.

In fact, she never attended any class. The Vice-Chancellor’s reported act of favouritism forced the Head of the Law Department to resign. It all boils down to the urgent need for regulating private and public educational institutions and curbing political interference in the law-enforcement process.

Thought for the Day

It is not human nature we should accuse but the despicable conventions that pervert it.— Denis Diderot, a French philosopher

ARTICLE

BRICS has its relevance
But it’s an evolving forum with limitations
by M. Rasgotra and H. H. S. Viswanathan

The coverage of the recent BRICS Summit at Sanya (China) in the Western media in particular raised questions about the relevance or utility of the grouping. For example, Phillip Bowring, a reputed commentator writing in The New York Times, called BRICS “a real gang of five, or just a list of nations with no common agenda other than a shared resentment of the United States” and added “this was a summit meeting the emerging world does not need”.

On the other hand, an article in Pravda noted that with the rise of BRICS, “the season is ending in which two or three Western powers — UN Security Council permanent members — could meet in a room and come out of there ostensibly speaking on behalf of the international community.”

Both judgments are premature and in need of a good deal of tempering: for BRICS is still a very new grouping, trying to find its niche area at the global stage. This was only the third summit (and the first with membership just expanded to five to include South Africa).

Clearly, there is no particular glue holding the five members together; they differ with one another on a number of matters. India, for example, bears no resentment against and, in fact, is engaged in forging a closer relationship with the United States. On the other hand, at least in the matter of political organisation and the system of government, India has little in common with China.

All the five countries — Brazil, Russia, India, China and South Africa — are at different stages of economic development, and the group defies the fixed templates of international groupings. Unlike the European Union, ASEAN or SAARC, BRICS does not fit into any of the defining characteristics of a grouping — shared ideology, common values, regional contiguity or cohesion, converging security interests, or identical economic interests and policies.

It is a new idea in a new international context, and even as all BRICS member-countries aspire for a larger role in the world, they approach the task in varied ways and in differing partnerships or alliances, etc. They have one thing in common though: they are all rising economies.

It is widely recognised that after the global financial crisis of 2008, the international financial system and its management need serious improvements. In the major task of securing changes in the decision-making processes in the International Monetary Fund (IMF) and the World Bank, the concerted approach of these rising economies played a role that has re-aligned the functioning of an outdated system somewhat closer to the present-day reality and current needs. The recent increase in the voting power of developing countries in the IMF and the World Bank is a testimony to BRICS’ relevance.

BRICS is not a political or power bloc, and it does not project itself as such. As of now, it is not even envisaging a formal structure with a secretariat. The fear in the West that within the G-20 the BRICS countries might form a bloc is equally misplaced. India, for example, has maintained that in G-20 the member-countries’ leaders participate in their individual capacities. India also prefers decisions by consensus. It is in nobody’s interest to split G-20 along the lines of the OECD/non-OECD or the old versus the emerging economies.

Dethronement of the US dollar has sometimes been wrongly projected as one of the goals of BRICS. A glance at the foreign exchange reserves of the five countries will show how exaggerated the notion is. China, for example, holds more than 3 trillion dollars in denominated US government bonds and other Instruments. Any precipitous decline in the value of the US dollar would seriously erode the net worth of the assets of the five countries.

Perhaps, no country other than China sees the Chinese Renminbi (Yuan) replacing the dollar as the global currency in the foreseeable future. The Special Drawing Rights (SDRs) have been talked about for some time as an alternative, but that too is something for a distant future. Increasing the quantum of the SDRs in requisite measure and revising the basket of SDR currencies will take time.

At the Sanya summit, the development banks of the five countries signed an agreement to extend credits to each other in their national currencies, and a small step in this direction has already been taken between China and Russia. But it is not certain that the idea will gather momentum.

There are serious differences among the BRICS countries on trade deficits between China and the rest. The Yuan exchange rate is of concern not only to the US, but also to India, Brazil and South Africa whose exports to third markets are becoming uncompetitive due to the under-valued Yuan.

On the question of the expansion of permanent membership of the UN Security Council, in which Brazil, India and South Africa are interested, China is not willing to commit unequivocal support. Reaction and responses differ also in regard to vital political issues of our time such as the Arab uprisings against dictatorial regimes in West Asia.

Differences have emerged among its members even in regard to the composition and functioning of the grouping. Whereas Russia is for deepening cooperation to consolidate the grouping with a formal structure, China prefers its expansion to include countries like Turkey, Mexico, South Korea and Indonesia.

The effects of BRICS’ overlap of membership and interests with blocs like IBSA (India-Brazil-South Africa), RIC (Russia-India-China) and BASIC (Brazil-South Africa-India-China) are not yet clear. Each has a niche area of expertise. Of the three, RIC will probably be absorbed in BRICS sooner or later. IBSA has some inherent cohesion because of its members’ shared values and interests and their similar socio-economic problems about which they can learn from each other’s experience.

BRICS is an evolving process, and any exaggerated notion of it becoming a power bloc will be out of place. It might work towards “a multi-polar (or poly-centric) world”, which a former Brazilian President had described as an important goal of BRICS, but in no sense is it a ganging-up against the US or the West.

It is a five-nation forum for consultation and concerted action on specific economic and social issues of global significance. At the Sanya summit the leaders rightly decided to “advance cooperation in a gradual and pragmatic manner, making it inclusive and non-confrontational.”

Some reports in the Indian media wrongly stated that South Africa’s inclusion in the forum was due to China’s initiative or insistence. The move, in fact, was initiated by India at a Track 2 meeting of BRIC think-tanks at the Observer Research Foundation (ORF) in New Delhi in May 2009. That meeting was organised by the ORF to prepare recommendations for the summit’s consideration, and its recommendation for South Africa’s induction was accepted by the summit. After that China as the summit’s host formally invited South Africa to join BRICS.

Mr Rasgotra is a former Foreign Secretary and currently the President of the Centre for International Relations at the Observer Research Foundation (ORF). Mr Viswanathan served as India’s Ambassador in many African countries and is currently working at the ORF

MIDDLE

A travelling episode
by Ranbir Parmar

Certain things about this world you learn only when you travel. No amount of listening to exhaustive anecdotes or going through the well-documented travelogues will make you wiser about these facts. For instance, nobody cared to tell me, before I actually visited London last year, that sun sets well after 9.30 p.m. in that part of the world.

When my host motioned me towards dinner table, I gaped with disbelief at shining daylight outside the polygonal bay-window. I had to dine without my regular daily drink which I religiously take after sunset.

Similarly, I had to travel right up to New York to learn that Americans drive on the right side of the road, not the left, and they call a lift an elevator. The usual toilet becomes a restroom there and an engaged phone busy. Our desi Metro, which is called a tube in London, transforms into Subway in New York.

But sometimes these learning experiences turn out to be a bit sour if not altogether bitter. This we found out during our first chance to travel outside our country a few years ago when I, accompanied by my wife, embarked upon a trip to Dubai. The place being famous as a shopping heaven, we were burdened with requests from our relatives and friends. Most of them insisted on paying in advance for these articles. Our wallets were overflowing with hard cash when we reached the airport. We did not take the trouble to exchange our Indian rupees into some international currency though there were many outlets available. In this era of liberalised currency laws, who will bother about us taking a few thousand rupees outside the country, we thought.

But we were proved wrong. At the custom clearance checkpost, we were interrogated by a grim looking official about how much currency we were carrying with us. All the contents of our wallets and handbags were emptied on the table. Our holdings amounted to Rs 90,000. The official told us in a cool, businesslike voice that we are entitled to carry Rs 5,000 per person only and the rest of the sum would be confiscated. He was unmoved by all our pleadings that we were unaware of the regulations else we would have exchanged the money on entering the airport. Ignorance of law is not an excuse for breaking the law, he parroted the cliché vacantly.

But he softened a bit when I told him that I was a bank employee on my first trip abroad on a shoestring budget. Staring straight into my eyes, he asked me to pay him eight thousand rupees and he would allow us to exchange the rest of the amount. “And not a rupee less will do,” he added with an air of finality.

When I returned after exchanging my money and handing over the amount of bribe to a person manning the bank counter, cursing that custom man all the time, I found him standing with my wife where I left him.

“Are you thankful to me?” he asked handing over our boarding passes to me.

“I am not sure,” I mumbled.

“You should be,” he whispered, smiling wistfully. as we turned on our way to board the plane.

Later, on board the plane, a co-passenger enlightened me about the custom regulations. He expressed his surprise as to why that custom official let us off. “These officers get 10 per cent of the confiscated amount as reward or recovery-fee, the sum exactly equal to what he took from you as bribe!” the co-passenger added.

Till today, I have not been able to decide as to how I should remember that custom official — as an ordinary cog in our corrupt bureaucratic machinery or a compassionate benefactor. And I wonder how someone like Anna Hazare or Arvind Kejriwal will interpret this episode.

OPED LAW

Fresh directions in custody battles
A recent judgment of the Supreme Court provides some direction in the ever-increasing battles for custody of children. But a legislative framework is also urgently required so that decisions are not just left to judicial subjectivity
Anil Malhotra

The world has shrunk. Inter-continental travel is easier, affordable, faster and comfortable. As a corollary, it has lead to a surge in relationships between individuals of different nationalities and diverse backgrounds. International mobility has dismantled inter-cultural taboos. But when marriages break down, the children become the worst victims. Caught in the cross fire of broken human relationships with ensuing disputes over custody and relocation, children are traumatised and torn between parents. Attempts are often made to remove the children and take them to other countries. The hazards of international child removal are accentuated by the chronic problems of maintaining access or contact internationally and have often defied legal solutions.

However, the Supreme Court of India on 13 May, in a cross-border child custody battle, has laid down principles and created a precedent which is bound to have wide-ranging impact. The matter arose in a US based NRI couple's case. The wife left her husband in the US and returned to India with her son. She moved a Delhi Guardian Court and got custody rights. In a suit filed in the USA by her estranged husband, who claimed that his wife had abducted the child, a US Court issued a red corner notice against the wife and directed her to return to the USA.

Courts differ

While the wife, who had decided to settle down in India, took refuge in a Delhi district court order allowing her custody of her son, the husband filed an appeal before the Delhi High Court, which set aside the lower court's order. It upheld the appeal and ruled that since a US court had already issued an order in the custody case and since the parents and the child were all American citizens, Indian courts had no jurisdiction in the matter and all issues needed to be agitated before courts in the USA. The wife then preferred an appeal to the Supreme Court.

The Apex Court this month set aside the judgment of the Delhi High Court and directed that while the proceedings shall go on before the Delhi Guardian Judge to be disposed off as expeditiously as possible, till then, the interim custody will remain with the mother and the father will enjoy visitation rights only.

The Apex Court culled out three questions for determination. The first question related to the jurisdiction of the 'Guardian Judge' to entertain the petition for adjudicating custody issues. Interpreting the phrase "ordinarily resident", the Court held that the intention of parties would also go to determine this important question. The fact that the child was studying and residing in Delhi for the past three years, the court held, had clearly established that both the mother and the child were 'ordinarily residents of Delhi'. E-mails produced by the wife as evidence also established that the father of the child was a party to this arrangement. Hence, it concluded, the Guadian judge in Delhi had the jurisdiction and competence to decide the custody rights.

The Court also held that the jurisdiction of the Guardian Judge could not be declined on the principle of comity of Courts. Examining earlier precedents, the Court ruled that proceedings in Habeas Corpus matters are summary in nature which may lead to determination of custody issues when the child is within the jurisdiction of the High Court. Distinguishing and contrasting Guardianship proceedings based on evidence, it has been held that if the removed child is not ordinarily resident within its jurisdiction, the Guardian Judge has no jurisdiction to entertain the proceedings even if it is an act of violation of a foreign Court custody order.

Disapproving of the application of the "Comity of Courts" principle in the matter, the Supreme Court held that no foreign court order had been violated by the wife. There was no final decision by any US Court, the minor was voluntarily in India and there was no intention of the wife and the child to return to the USA. The Supreme Court held that the interest of the minor would be better served if the mother continued to have the custody of the child, which was also a more acceptable option.

Balanced view

With all fairness to the husband, the Supreme Court in the third question also modified the order of the Guardian Judge and granted visitation rights to him during the pendency of the petition before the Court in Delhi. Holding that the "father's care and guidance" is necessary at the "formative and impressionable stage" of the child's life, the Court viewed that for the "child's healthy growth and to stay in touch and share moments of joy, learning and happiness with each other", the father be granted visitation rights through telephonic contact, video conferencing and visits during vacations as determined by the Guardian Judge. This was indeed a humane and a benevolent view of the whole situation.

The well settled and balanced verdict is a harmonious blend of legal principles, a positive interpretation of parental rights, a decisive pronouncement of jurisdictional issues and brings out a confluence of earlier precedents by distinguishing them on factual basis. It is a much needed decree of the Apex Court on legal battles over child removal and normally fought on uncertain grounds with no legislation on the subject. There is, therefore, a dire need to enact a statutory law on inter-parental child removal to be uniformly followed in all such matters. An appropriate legislative solution will be in the larger interests of children. The yeoman effort by the Courts to carve out solutions on a case to case basis can only be a time consuming exercise which cannot be stretched indefinitely.

With the increasing number of Indians migrating to other countries and the growing number of Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem. The phenomenon is global. Parallel Court proceedings in two jurisdictions by warring parents reduce the child to be won over as a trophy at the end of a legal war. Steps have to be taken by joining hands globally to resolve these conflicts by interaction of Courts and countries.

Till India does not become a signatory to the Hague Convention on Civil Aspects of International Child Abduction, this cannot be achieved. It is equally important to create a domestic uniform law with clear, authentic and universal child custody principles before India accedes to the Convention. The machinery to implement the convention must first be devised. Divergent views only divide children. Removed children cannot be allowed to live on a no man's land. The temptation to wrongfully remove children must be deterred. The cruel abduction of children must find a legislative solution forthwith.

The writer, a lawyer, has authored several books including "India, NRIs and the Law" and is a member of the U.T. NRI Cell, Chandigarh.

Fresh guideline laid down by the Supreme Court of India

The Supreme Court laid down the following principles in its judgment on the case delivered earlier in May.

The expression “Ordinarily resides” in Guardian & Wards Act to be determined also by ‘intention’ of parties and not merely on residence abroad or overseas nationality.

Custody Orders issued by foreign courts not to be taken as conclusive and binding but should be considered as just one of the factors or consideration that would go into the making of a final decision by an Indian Court. “Objectivity and not abject surrender is the mantra in such cases, ” says the apex court’s order.

Habeas Corpus petitions being summary in nature can determine custody issue of children present in its jurisdiction and also embark upon a detailed enquiry in cases where welfare of a minor is in question. In Habeas Corpus proceedings, the legality of the detention of the alleged detenue in the territorial jurisdiction of the Court will be gone into.

The principle of “Comity of Courts” in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, welfare of the minor being paramount, the Supreme Court now says, Indian Courts are duty bound to examine the matter “taking the foreign Judgment only as an input for final consideration.”

(Judgment delivered by Justice Tirath Singh Thakur for the bench on May 13)

No quick fix solution in custodial conflicts

The number of cases related to inter-parental child custody conflicts has gone up sharply. As more and more marriages fall apart, Non-Resident Indian parents often remove their children to India or to foreign jurisdictions either in violation of a foreign court custody order or in infringement of the other spouse’s parental rights.

l The Hague Convention, a multilateral treaty developed by the Hague Conference on Private International Law provides an expeditious method of returning a child taken from one member nation to another.

l But though the Convention concluded on 25 October 1980 and the treaty became effective from 1 December 1983, India is still not a signatory despite the fact that it has been accepted by 80 nations so far.

l The Convention was drafted to “ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.”

l The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

l But “Inter-parental child abduction” is neither defined nor is it an offence under any statutory law in India. Hence, it is extremely difficult to prove or establish child removal at the hands of a parent who is a natural guardian of the child.

l The most expeditious remedy is to file a Writ of Habeas Corpus in the High Court or the Supreme Court for return of custody by a parent on the strength of a foreign Court order or in violation of parental rights.

l The alternative remedy is to initiate guardianship proceedings under the Guardian and Wards Act, 1890 by leading evidence and placing all cogent material on the record before a Guardian Judge. Process is cumbersome, tedious and time consuming. Also difficult and slow for a foreign parent.

l In 1984, in Surinder Kaur Vs. Harbax Singh Sandhu & in 1987, in Elizabeth Dinshaw Vs.Arvind M. Dinshaw, the Supreme Court exercising its summary jurisdiction returned the removed minor children to the foreign country of their origin on the basis of foreign court custody orders.

l In 1998, in Dhanwanti Joshi Vs. Madhav Unde & in 2000, in Sarita Sharma Vs. Sushil Sharma, the Courts favored keeping the child’s welfare and best interests in mind over all other aspects. Accordingly, Foreign court orders became only one consideration in child custody disputes which were to be decided on the merits of each case without any summary return.

l In 2010, in V. Ravi Chandran Vs. UOI and again in 2010 in Shilpa Aggarwal Vs. Aviral Mittal, the Supreme Court, following Habeas Corpus petitions, directed the summary return of children to USA and UK respectively, leaving all aspects relating to child welfare to be investigated by Courts in the foreign jurisdiction.

l In May 2011, in Ruchi Majoo Vs. Sanjeev Majoo, in an appeal, in a Guardian and Wards petition, the Supreme Court has directed that the proceedings for deciding custody rights shall go on before the Guardian Judge at Delhi and till then the interim custody shall be with the mother. The father has been given visitation rights.

Why should India be interested in joining the 1980 convention?

l India is no longer impervious to international inter-parental child removal

l The present situation plays into the hands of the abducting parent

l The offending parent at times usurps the role of the competent Court

l India’s non-signatory status has a negative influence on a foreign Judge who often declines a parent from taking the child to India fearing non-return.

l The Convention avoids the problems that may arise in Courts of different countries which are equally competent to decide such issues

The best possible solution would be to become a signatory to the Hague Convention and enact a Indian International Child Abduction Law and create a Central Authority for liaison and for seeking adjudication before designated existing Indian Courts to resolve such disputes to decide summary return or to render decisions on merit. In the interest of children, the stalemate must end.