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World won’t wait for India
Keep foreign policy above politics
by H. K. Dua
When domestic politics becomes intense, there is a risk of vital issues concerning foreign policy getting neglected. A vibrant democracy like India’s will always have some internal stomach-aches which can draw greater attention than the situation in the world outside.A nation like India, poised to emerge as a major economic, political and military power of the 21st century, cannot afford to sit back and shut its eyes to what is happening elsewhere in the world. During the last two years issues and controversies at home dominated the public mindspace. The general mood of cynicism that spread across the nation as well as the bitter acrimony that underscored the public discourse distracted the country and the political leadership from the tasks abroad. After the ongoing Assembly elections in Uttar Pradesh are over, the country will get busy with preparations for the next parliamentary polls due in 2014. Already, much of the public debate about the Assembly elections is viewed in the context of what impact their results will have on the 2014 parliamentary polls. The world, which is always changing, is not, however, going to wait for India’s next Lok Sabha elections to be over. Even in the next two years the situation in major parts of the world will have changed, demanding India’s continued attention, irrespective of what happens during the run-up to the 2014 polls. Major nations of the world are going to see a few important changes. The present leadership in China led by Hu Jintao and Wen Jiabao will have given way to a new leadership by the end of this year. Vladimir Putin will return to the presidency at the Kremlin to make it more powerful and govern Russia for at least six years. In the United States, it will be known by the end of the year whether President Barack Obama gets a second term, or a Republican will capture the White House. It remains to be seen whether President Obama — if he gets re-elected — will give greater attention to Washington’s global policies than he has given during his first term. At the end of his first term, he is in a withdrawal mode. Nearer home, the situation in Pakistan is in a state of flux and no one knows what is the shape of things likely to come in Islamabad, caught as it is in a triangular war between the civilian government, the army and the judiciary. The situation in West Asia will, perhaps, become a major concern for New Delhi, considering that over 60 lakh Indians work there and a chunk of our oil supplies come from the Persian Gulf. So do the trades routes with the western hemisphere. Already, the US has decided to toughen the sanctions regime against Iran —mainly because it is refusing to give up its nuclear bomb programme. Iran has even threatened to block the Straits of Hormuz in retaliation and in case it carries out its threat, it can lead to a flare-up in one of the most dangerous spots in the world. Iranians are unlikely to succumb to the sanctions. Their economy depends on oil exports. They could divert most of their oil exports to China, which like Russia, is opposed to Western sanctions against Iran. No one knows what the Israelis will do in this kind of a situation. They have a running rivalry with Iran in West Asia’s complicated politics where oil, religion, geopolitics and big power interests have brought about dangerous uncertainties. Also, Israel and the US hate to see Iran going ahead with its plans to develop nuclear weapons. The Assembly elections or a run-up to the parliamentary polls in 2014 notwithstanding, India cannot simply watch with indifference the situation in the area so close to it. Also when major powers like the US, Russia and China will be busy with their elections or changes at the leadership level, India can take initiatives unhindered to improve relations in its immediate neighbourhood. The big powers are too busy with their own pursuits at this time. At present, the relations with South Asian neighbours are better than before. Even if the Teesta accord fell only because of Mamta Banerjee choosing to scuttle it, the relations between India and Bangladesh have vastly improved after Sheikh Hasina’s return to power in Dhaka. Of particular significance is the recent improvement of relations with Myanmar. During the last three months three high-level visits to India by leaders of Myanmar — of the President, the Speaker and the Foreign Minister – have taken place. These were not courtesy calls from a neighbouring country, which has decided to go in for a reconciliation process at home, initiating democratic reforms and released Aung Saan Su Kyi. But it also decided to open out to the rest of the world, certainly to India. For India, having opted for the Look East policy, Myanmar can become a bridge with South-East Asia. The relations with Nepal, which is of critical importance, have improved lately with Maoist leader Baburam Bhattarai coming to power in Kathmandu. He will like to keep a balance when dealing with China in the north and India along its southern border, but is likely to keep Indian interests in mind. Of crucial importance will be the relationship with China and Pakistan and the thickening ties between the two countries. The peace dialogue with Pakistan was going on smoothly until Islamabad got caught in political uncertainty following the “Memogate”. It can be resumed once it is clear who is to govern Pakistan. Despite “irritants” — as Wen Jiabao would call these — making scary headlines, the India-China relations have been fairly on course, judging from the way the Special Representatives of the two countries tried to work out a framework for boundary demarcation in a slow process of the resolution of the border dispute. Whatever the gloomy forecasts, a war between India and China is ruled out. Both countries have developed their military strength as also trade relations, although the trade balance with India is heavily tilted in favour of China. There is no solution in sight about military and nuclear ties between China and Pakistan. Indian concern about this has been brought to the notice of the Chinese, but the only remedy for India is to grow its own military strength. At the same time, the policy should be to continue the dialogue with both — and these should go without interruption, until the cows come home. Hysterical noises and headlines do not make a constructive contribution to diplomacy. India needs a vision for the 21st century and time to build its economy and military strength. The country also requires a consensus among major political parties on vital issues concerning foreign policy, security and terrorism. Such a consensus can be evolved despite the polemics that are going to mark the political landscape until the 2014 parliamentary
elections. The writer is a senior journalist and Member of Parliament.
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Caller tunes
by V.K. Kapoor
Human beings have an instinctive motivation to satisfy many needs. Our character is basically a composite of habits, and in one individual one can see a number of personalities. Habits are like a cable. We wear a strand of it everyday, and soon it cannot be broken. The Devil and the Saint co-exist in a human being. Life remains in a state of continuous ferment. With the spread of the style revolution, a mobile phone has become a necessity. Most of the mobile users have a caller tune. I have seen that the caller tunes correspond to the traits of the user. Most of my old retired friends have religious caller tunes. “Lakh Khushian Patshahian...” is the favourite of a friend. He devotes his time to social work, and working for the underprivileged. Age has not dimmed his love for the bottle. He justifies it by saying that all the old rishis took “Som Ras”. He calls “Som Ras” the mother of whisky. Another friend continues to be an idealist. His is the case of a bleeding heart tied to a brilliant mind. Initially, his caller tune was “Sarfaroshi Ki Tamanna Ab Hamare Dil Mein Hai’. Sardar Bhagat Singh continues to be his hero. Then he replaced his caller tune with Munni Bai’s famous rendition, “Jab Takht Giraye Jayen Gay, Jab Taj Uchhale Jayen Gay”. She sang this during Zia-ul-Haq’s time in Pakistan and practically the whole of Pakistan rose against General Zia. This poem was written by Faiz Ahmad Faiz. Life is made of marble and mind. Nothing good can last forever. Every boom goes bust. Every heart gets broken. Changes occur faster than people’s ability to adapt to these. People react artificially. A friend of mine, a reformed romantic, had the caller tune, “Ai Malik Tere Bande Ham, Neki Karen, Badi Se Daren”. He was divorced twice. He always looked to be a dandy in distress. One day I rang him up and his tune was “Touch Me, Touch Me, Kiss Me, Kiss Me”. I asked him the reason for changing his caller tune. He told me that he had found his true “friend” and both of them adopted this caller tune. He was happy. The cause was the deliciously corrupt excitement of adultery, its hidden expectation of rupture. The thrilled whispered calls, the furtive meetings and the decibels of delight. Both virtue and vice flower in activity. She was slightly senior to him in age. A little incompatibility is the spice of life, particularly if he has income and she is palatable. One day he was very upset and narrated his tale of woe. He told me that he rang her up, and there was no response. On the fourth attempt, he heard a gruff male voice. He asked about her friend and he told him that she was getting ready for dinner! Then he developed interest in yoga, which paid him dividends. He happened to meet her at a yoga camp. I told him that one should never get disheartened in the land of Kamasutra and Khajuraho because there is always some opportunity waiting for everybody at some
corner.
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The custody row over two Indian children in Norway raises important questions of law and the MEA cannot afford to surrender Indians' interests
Indian personal law is valid in Norway too
Anil Malhotra
When three year old Abhigyan allegedly started showing behavioural problems in Kindergarten, Norwegian social workers began visiting the Indian family for an hour every week.What they observed was enough to convince them that the parents, Anurup and Sagarika Bhattacharya, were unfit to rear Abhigyan and his sister, six month old Aishwarya. The boy slept with his father, they noted. The mother fed the children with her fingers. Both the children were being 'over-fed' and the mother appeared to be suffering from depression. She also looked 'tired' and 'impatient'. Based on the reports submitted by the social workers, the Child Care Service of Norway, Barnevarne, took away the children in May last year. Abhigyan was picked up from the kindergarten while the girl child was collected from home. Both the children were handed over to two different foster homes; and the parents were told that they could meet the children only once ( twice according to some reports) a year for an hour and only till they attain the age of 18. The Norwegian court also added that only if the couple separated, would the custody of the children be given to their natural father.
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(Clockwise from top) Bhattacharyas on their wedding day; Anurup with both the children;
Sagarika and Anurup with son Abhigyan
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The shocked parents, the father a senior Geo-scientist living in Norway for the past six years, went to the police. Anurup Bhattacharya told a TV channel that his wife's crying and shouting at the police station convinced the Norwegian authorities in their belief that she was not 'fit' to rear the children. “ They had bizarre explanations to justify their action; they told me that our daughter looked at the faces of other people around her and not at her mother. They also claimed that our son remained aloof in the kindergarten and banged his head on the floor,” said Bhattacharya this month, after all attempts to get back the custody of the children failed. The parents went to the court and won the case in their favour. But Barneverne went in appeal and got the higher court to overturn the order of the lower court. Both the maternal and the paternal grandparents of the children flew to Norway and pleaded with Norwegian authorities that they be given the custody of the children. “ This is how we rear our children in India and this is how we reared the children's mother,” pleaded the shocked father of Sagarika. But the officials remained unmoved. Gunnar Toresen, the head of Barnaverne, however denied to The Telegraph of London that their action was based on cultural prejudice or misinterpretation. But he would not comment on the case on the plea that they were expected to maintain 'confidentiality'. Remarkably, it required an audience that the grandparents, finally, had with the President , Pratibha Patil, before the Ministry of External Affairs took up the case with their Norwegian counterparts. Earlier letters sent to the Norwegian Government by the Ministry of External Affairs reportedly on December 28, 2011 and January 5, 2011, had elicited no response. With the visas of Bhattacharyas to stay in Norway expiring in March, they naturally dreaded leaving the country without their children.
The legal positionA sense of euphoria is evident in India as Norway was reported to have agreed to hand over the children to their Kolkata-based uncle, subject to a Norwegian District Court accepting the arrangement. But the euphoria is completely misplaced. The case is important because its resolution will have a bearing on the future and affect decisions involving 30 million NRIs living in 180 countries abroad. A wrong precedent set now will have repercussions on custody cases in other countries as well. While living abroad, Indian citizens are obviously subjected to the local civil and criminal laws. Similarly, foreign citizens living in India are subjected to the existing Indian statutes. But when it comes to 'Personal or Family Law', the established practice has been to uphold the right of people to follow the laws guiding their lives in their country of irigin. Norway, Denmark, Sweden and Finland have stringent State welfare policies for its nationals, which empower them to place children in foster homes to live with strangers. But custody of children of Indian nationals cannot normally be taken away from their natural guardians i.e. their parents, unless and until the action is warranted under Indian law applicable to the parties. In this respect, the lack of Consular assistance and non-availability of legal help to the Bhattacharyas in Norway may have contributed to the abrupt Nordic State action in snatching the children away.
Guardianship ActIn respect of Hindus, i.e. any person who is Hindu, Buddhist, Jain or Sikh by religion, The Hindu Minority and Guardianship Act, 1956 (HMGA) is not just applicable but also has extra territorial application. In other words, the law is applicable to them, no matter where they live. Similar laws related to marriage, divorce and inheritance, for example, would also have similar application. Thus, the Bhattacharyas practically carry with them their personal law in their pockets. Under the HMGA, the natural Guardian of a Hindu minor is his father and after him the mother. The custody of a minor child below the age of 5 years shall ordinarily be with the mother. The welfare of the minor is the paramount consideration while appointing or declaring any person as Guardian by a court of competent jurisdiction in India. The appointment of Guardians in respect of minor children in India is governed by the Guardians and Wards Act, 1890. Since the HMGA does not have independent, statutory provisions for appointment of Guardians of minors, all parties, whether Hindus or non-Hindus, have to invoke the provisions of the GWA for appointment of a Guardian with respect to a minor child in India. There is an explicit provision in the GWA that if the natural father is living, no one else can be declared or appointed to be the Guardian of the minor, unless the Court is of the opinion that the father is “unfit” to be a guardian. This process,would of course be tested on the fundamental principle of what appears to be in the circumstances best for the welfare of the minor. In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor besides other factors. The reported face saving solution of handing over the custody of the children to Dr. Arunabhas Bhattacharya, the 27 year old bachelor brother of Anurup, who is a Dentist in West Bengal, subject to a Norwegian Court accepting the arrangement, seems to be an abject surrender to Norwegian laws, without first considering the applicability of Indian personal laws. Curiously, if reports in the media are an indication, the applicability of the HMGA does not seem to have been raised at any stage, not even by the Government of India.
European ConventionSubjecting Indian citizens to Norwegian family laws is setting an incorrect precedent and contrary to settled Indian law. This fallacious practice will only mar future cases coming up for similar determination and put applicability of Indian laws in jeopardy. Applying Nordic law to Indian nationals domiciled in Norway, who are Hindus by religion, does not meet the interpretation of the personal law applicable to the Indian parents. Applying European yardsticks of culture, habits and social mores to Bhattacharyas, is not the correct application of the 'best interests principle' for determining the welfare of the children. An overzealous Norwegian social set up cannot change the personal law of the parties or usurp the interpretation of principles of upbringing of Indian children. Norwegian personal laws cannot be imposed upon foreign citizens domiciled temporarily in Norway. A Norwegian Court cannot close the rights of Indian parents till their children attain the age of majority. Rights of children cannot be flouted with such impunity. Another disturbing factor seems to be in separating the children and traumatising them by not letting them grow as siblings. The brother and sister have a right to grow up in a family together as they were born. This natural order cannot be changed. The United Nations Convention of the Rights of the Child has also been defied while confiscating the two children. The concern is larger. The Right to Family Life ,guaranteed by the European Convention of Human Rights too appears to have been violated. It will be a sad story with an unhappy ending if India does not intervene. It is time India expressed its sovereignty in the matter of Indian family laws to Indian citizens living and working abroad. The author, an alumnus of School of Oriental and African Studies, London, practices at the Punjab & Haryana High Court and has co-authored the book, “Indians, NRIs & the Law”
A clash of civilisations
The Case in brief n In May 2011 Norwegian Child Protection Service removed the three- year old son and six-month old daughter from their parents custody in Norway after authorities branded their behaviour dysfunctional and negligent. n
The children were placed in separate foster care homes on local Norwegian Court’s directive. Natural Parents granted yearly one hour meetings till the children attain the age of 18 years. n
Upon mediation, a reunion is said to be in the offing with Norwegian authorities offering the custody of the children to their uncle, father’s brother living in Bengal (India) subject to local Court in Norway allowing the arrangement. n
Ultimate outcome still hazy as now the primary care-giver till the children attain the age of 18 will be the uncle, who will go to Norway for resolution of the matter. The Issues Involved n
Both children and parents being Indian nationals, they are governed by Hindu Law i.e. their personal law, notwithstanding their temporary Norwegian domicile. n
Under Hindu Minority Guardianship Act (HMGA) having extra territorial application, natural guardians are the parents and custody of children below the age of five should be with the mother. Unless the natural father is declared “unfit” by the Guardian Judge of a competent court in India, nobody else can be appointed their guardian. n
Irrespective of domicile, nationality and citizenship, Indian personal laws in family matters ought to prevail in Norway. Indian view point not considered. n
The Norwegian view point is that the Child Welfare Act of Norway is applicable to everyone, irrespective of the children’s nationality, citizenship or cultural background. n
Principles of Private International Law or Conflict of Laws need interpretation. Indian child welfare law experts and Consular assistance must be provided to the couple. Different Perspectives n
In matters of foreign Civil and Criminal laws, applicability, enforcement and implementation of the law of foreign domicile is not disputed. However, in relation to personal family law issues, foreign family laws are not applicable to indoor or community practices, which do not offend the right of foreigners. n
Wearing of the Hizab or Burkha may be permissible indoors but may violate foreign security laws, if publicly worn, due to security risks to the general public and hence such reasonable restrictions cannot be said to be violative of personal rights. n
Separating children from parents and from each other may be violative of even the European Convention of Human Rights, which guarantees right to Family life. n
Cultural habits and religious upbringing within the habitat, that are guided by the personal family law of the community, cannot be sufficient ground for taking away the custody of children, unless local Criminal laws are violated and such practices pose a security risk or are a safety hazard to the public at large. Questions being raised n
If the Norwegians had any reservation about the fitness of the mother to take care of children, they could have asked the mother and the children to leave the country; or they could have refused to renew the visa. n
They could have offered counselling to the parents and informed the Indian Embassy. n
But can they be allowed to separate the children from their parents and also separate them from each other ?
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