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The blame
game In grip of
graft |
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Strands
of truth
US &
Pakistan in Afghanistan
All over
a teacup!
Pain of cross-border abduction by parent
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In grip of graft
J&K Minister for Agriculture Ghulam Hassan Mir has said it is a positive signal that separatist leaders are talking of development issues of the state. But another strong indicator that militancy is now not the only focus of the state is talk of the high level of corruption — with the Opposition getting aggressive in its allegations, and the government taking legislative steps to put in place a machinery to tackle the menace. On ground, however, little has changed yet. During the nearly quarter century of militancy in the state, it remained a struggle for survival — both literally and figuratively — for the general population as well as those in the government. That served as a convenient distraction for those with sticky fingers. The result is virtually institutionalised corruption — in electricity, Public Distribution System, et al. The nadir was reached when Transparency International in 2005 rated J&K as the second most corrupt state in India. With the justice delivery system nearly all taken up with militancy, people at the grassroots level learnt to deal with their issues on their own, which essentially meant paying bribes. The need today is to restore their faith in the system, so they may not resort to extra-legal means to get their due. To that end, the state government has taken several steps, such as appointing a chairman of the State Accountability Commission (equivalent of Lokayukta in other states) after three years, passing the J&K Vigilance Commission Act (2011), the RTI Act (2009), and the Public Service Guarantee Act (20011). All this, however, looks impressive only on paper. The accountability panel has 19 posts at various levels vacant. It does not have an independent investigation wing. The State Vigilance Organisation has been rather slow in prosecution of cases, thereby failing to strike fear in corrupt minds. With a couple of members of the state Cabinet facing corruption charges, Chief Minister Omar Abdullah will find it hard to convince people he means business in fighting graft — which not only needs to be done but also seen to be done.
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Strands of truth
Veteran
Congress leader N D Tiwari made a name for himself in politics, but of late he seems to be making headlines for all the wrong reasons. In the latest instance, it is his dogged resistance to giving a DNA sample which is required to settle a paternity claim filed in 2008 by Rohit Shekhar who claims to be Mr Tiwari’s biological son. In cases where paternity is contested, DNA testing has emerged as the preferred option because it is legally recognised as the most scientifically accurate way of establishing whether a biological relationship exists or not. In a DNA paternity test, 16 different locations from a sample of a father and child are compared to see if there is a probability of a biological match. DNA results are considered so accurate that after this test there is seldom a ground left to challenge a paternity claim. This could well be the cause of the reluctance to give a sample from which such a test could be conducted. A former chief minister of Uttar Pradesh and then of Uttarakhand, Mr Tiwari also held key ministerial portfolios at the Centre. He resigned as Governor of Andhra Pradesh in 2009, following allegations of sexual misconduct levelled against him. Mr Tiwari has tried various ploys to avoid giving the DNA sample, even as the Delhi High Court has made it increasingly clear that he needs to do so. The fact that even the Supreme Court has not given him relief when he appealed against the High Court order is another indication that Mr Tiwari will have to give his DNA samples sooner than later. It is also clear that once the results of the sample come and are delivered to the court, the judges would have enough evidence to settle the paternity case.
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I think about my work every minute of the day. — Jeff Koons
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US & Pakistan in Afghanistan
Referring
to the relationship of the United States with Pakistan and India in his two seminal works, Dennis Kux called them Disenchanted Allies (2001) and Estranged Democracies (1994) respectively. An analysis of the recent relationship between the US and Pakistan would make one wonder whether the situation with regard to the estranged allies has, in fact, worsened. How did this happen from being a major non-NATO ally, designated only in 2004? Will it get better or deteriorate further? The present estrangement is primarily due to the contradicting strategic interests of the two countries, their asymmetric power structure and influence, and the growing public sentiments within the respective countries. Given the recent history and the significance of Afghanistan for both countries, the strategic interests of the US and Pakistan are bound to differ. Though both countries in principle would agree to have a stable Afghanistan, the definition of stability and who guarantees the same in Kabul is a primary point of difference. While the US would rhetorically insist on a democratic and stable Afghanistan, it would put emphasis more on “stability” rather than democracy. The US would prefer a non-Taliban regime, preferably led by a democratic coalition. However, the US is not averse to a Taliban coalition as long as it is “moderate”. Hence, the US is working towards a coalition of factions of the Taliban (mainly Mullah Omar’s), the Karzai group and the erstwhile members of the Northern Alliance. On the other hand, Pakistan would be totally opposed to a government led by Karzai with strong inputs from the Northern Alliance. While the military and the ISI in Pakistan are not averse to the Taliban led by Mullah Omar, they would rather prefer the Haqqani network to be the main coalition partner in any future regime in Kabul. While the Haqqanis are totally under the control of the ISI and depend on Pakistan for material and political support, Mullah Omar is considered relatively independent. When it came to crucial issues, from the legitimacy of the Durand Line to giving up Osama bin Laden, Mullah Omar did not yield to Pakistan’s requests after 9/11. There are no signs to prove that in a future set-up in Kabul, Mullah Omar is likely to toe Islamabad’s line. Precisely for the above reason, the Haqqanis assume a vital position in Pakistan’s future interests in Afghanistan. For the US it may be enemy number one in Afghanistan, but for Pakistan it is a strategic asset. Besides the future stability of Afghanistan, both the US and Pakistan differ dramatically in how they see the radical groups in the Af-Pak region, starting from Al-Qaeda. The US sees the radical groups in the Af-Pak region as essentially against its own strategic interests besides affecting international peace and stability. One of the primary factors behind the US announcing a bounty on Hafiz Saeed, leader of the Lashkar-e-Toiba (LeT), is based on the realisation that the radical groups within Pakistan are not a threat only to the region but also to global peace. On the other hand, Pakistan sees radical violence as a result of the American invasion of Afghanistan and expect it to decline once the Americans leave the region. Besides, for the ISI, many of these radical groups, especially the LeT, are a part of their larger regional strategy. Hence, Pakistan is unlikely to act against them. More than the strategic differences, what has made the US and Pakistan estranged and today hostile to each other is the difference in power equation and the use of force to get what they want. There is a huge asymmetry in terms of power relations between the two countries. While the US has brute power — monetary and military — Pakistan has certain trump cards mainly due to its strategic location. The US has been using brute force — from drone attacks to the killing of Osama bin Laden with little respect to Pakistan’s sovereignty. The drone attacks have been highly successful for the US in terms of neutralising the key leaders of Al-Qaeda and the Taliban, but these constitute a clear violation of sovereignty, especially when the state in Pakistan protests — from the President to the Chief of Army Staff. But that is what Pakistan could do — to protest. It is not that Pakistan does not have the technological sophistication or fire power to retaliate to the drones; they very well have. But what Pakistan does not have is the political will and military power to take on the US. If the killing of Osama, which involved the American Special Forces violating the Pakistani air space, was bad, Pakistan’s inability to strongly respond to the American attack on its troops in Salala last year was worse. All that Pakistan could demand is an apology for the US killing its troops, which has not come from Washington DC until today. Clearly, there is a huge power asymmetry in favour of the US, and Washington DC is making the maximum use of it. On the other hand, Pakistan has certain trump cards; for example, the supply line to NATO troops from Karachi port to Afghanistan. Unfortunately, Islamabad has decided to use that trump card in vain. Yes, it does hurt the US, but the international troops in Afghanistan are managing it. Today Pakistan neither has power to challenge nor any trump card to exploit the US and make the relationship even. What makes the asymmetry even worse is the growing public sentiments against each other. Today, the anti-American sentiments are at the highest within Pakistan. Though at times fuelled by the state of Pakistan for its own narrow interests, today there is a widespread anti-American feeling all over Pakistan, cutting across social and political shades. Besides the public pressure, Pakistan’s National Assembly (Parliament) also dug its own grave when a resolution was passed in the Assembly against the NATO supply line and for a call to renew the Pak-US relations. Though a committee has been formed, which has made recommendations, the hard reality is that the anti-American sentiments expressed by the public and routed through parliament are not going to affect the US decision-making process. On the other hand, there is equally an anti-Pakistan sentiment, now growing in the US, besides some of the other European countries. One has been witnessing a serious dialogue within the US Congress; the debate to support an independent Balochistan to ban the Haqqani network as a terrorist organisation is a part of the legislative pressure, reflecting the public sentiments in the US. Unlike the Pakistani legislature, any Congressional decision would hurt Pakistan. Such legislation in the US Congress would have sufficient force to affect Pakistani decision-making. Though there are public sentiments against the other, such a feeling would help the US administration while it would limit the Pakistani establishment — the political and military sides of it. More importantly, there is widespread support for the American stand at the global level vis-a-vis Pakistan, while Islamabad’s political protests and expression of public sentiments have no takers. So, what is likely to happen? Since there is a huge difference in terms of strategic interests and the ability to pursue them so far as political and military power is concerned, the US and Pakistan are likely to be at loggerheads. Will the American exit in 2014 help Pakistan rebuild its relationship? Perhaps not. Pakistan may lose its strategic significance. Perhaps, the nuclear assets of Pakistan may become its liability as the US is increasingly worried about their safety and security. What would be interesting is how Pakistan would like to position itself vis-a-vis the US after 2014, when it has no trump cards. Would it lean more towards China and consolidate a stronger relationship? Perhaps. But what would Pakistan offer to China in
return? The writer is Director, Institute of Peace and Conflict Studies, New Delhi, and Visiting Professor, Pakistan Studies
Programme, Jamia Millia Islamia.
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All over a teacup! Every
time I visit my maternal grandmother’s house in Shimla, I am witness to a brawl over a cup of tea. My mom and her sibling who are fond of tea snatch the revered cup from each other. This continues till they gulp several cups. Back home, I find that though my dad and mom complement each other in most habits, when it comes to tea they are poles apart. My dad loves lassi and milk while mom looks for opportunities to make tea. Little wonder, therefore, that my mom gently snubs dad when he forgets to offer a cup of tea to visiting family friends. The idea perhaps is not to outdo dad in the matter of hospitality but to help herself with another cup of this lovely drink on the pretext of guests. I enjoy this storm in a teacup and storm over a cup of tea as a matter of routine. But this storm now seems to have taken a different form thanks to the announcement by Planning Commission Deputy Chairman Montek Singh Ahluwalia that the government was considering making tea the country’s national drink. A formal announcement is likely next year on April 17 to coincide with the birth anniversary of the first indigenous tea planter, Maniram Dewar. The tea industry may be going gaga as getting a formal tag may help it build tea into a bigger brand. It may get more prominence in the government’s promotional activities and functions, strengthening the beverage’s association with our motherland in global markets and helping in exports. But our sweet home is witness to a daily debate over it with my dad making a pitch in favour of lassi or milk, arguing that tea is addictive and does not deserve this honour — isn’t it a storm in a teacup, so to say? He says that milk and lassi have been the country’s drinks down the ages while the tea culture is more of a British legacy. As my mom loves her cup of tea, my dad dutifully blames tea for every ailment in the family. The other day my mom had a severe headache and when my dad returned from work, there was a long lecture that it was the result of excessive intake of tea that had caused gastritis. My mom tried to score a point after the move to declare tea as a national drink came to light. However, she had to give in tamely when reminded by dad that there is no need to declare a national drink as nobody has declared ‘chapatti’, ‘daal’ or ‘rice’ as the national food, but they remain so. She made one last attempt to remind that our country was the largest producer and consumer of black tea in the world only to be told that our great country had also surpassed even the US in 1998 to emerge as the world’s largest milk producer. The demand for milk is likely to grow to 200 million tonnes by 2021-22. With no end in sight to the debate over the national drink status to tea or milk or lassi, our home presents a perfect picture of a storm in a
teacup!
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Pain of cross-border abduction by parent The concept is not clearly defined in any Indian legislation. As a matter of convention, it has come to mean the removal of a child from the care of the person with whom the child normally lives. Removal of a child from one country to another without the approval of the other parent or permission from a court, inadvertently or not, amounts to inter-parental child removal. Today, removal of children across borders is happening both ways. Earlier, cases of foreign children brought to India against parental consent were common. Now, the reverse is also true. The question arising here is how would Indian courts deal with situations where Indian children have been removed to foreign jurisdictions in violation of local court orders or parental wishes? Which law would apply and how would it extend to a foreign country? Clearly, there is no international legal instrument that can be invoked, and the only remedy with the aggrieved parent would be to invoke the national law of the foreign country where the child is wrongfully retained. But that is easier said than done. Visa formalities, travel expenses, litigation costs and, above all, foreign court procedures would be insurmountable. The problem defies solutions and workable remedies under the present provisions. The Hague Convention The Hague Convention on Civil Aspects of International Child Abduction, 1980, a multi-lateral treaty developed by the Hague Conference on Private International Law, provides an expeditious method to return a child from one member nation to another. The Convention has 80 nation member signatories but, unfortunately, India is not part of it. The Convention seeks to protect children internationally from the harmful effects of their wrongful removal or retention and ensures their prompt return to the country of their habitual residence. Inter-parental child removal is also not defined in any Indian legislation, nor is it an offence under any statutory law in India. Hence, the only expeditious and effective remedy sought is invoking the writ of habeas corpus in a high court directly to secure protection of the life and liberty of a child detained by one parent, either against the child’s wish or the other parent’s rights. Different high courts in India have different precedents on the maintainability of such a petition due to lack of any codified law on the subject. It may sometimes be extremely difficult to establish that children are in illegal detention of a parent. The Supreme Court considers a foreign court custody order as only one feature for consideration in such matters. Alternatively, upon the aggrieved parent being relegated to seek guardianship orders of their own children under the Guardian and Wards Act, 1890, a time-consuming and cumbersome procedure follows, which often frustrates the entire exercise as a desperate parent may not even achieve visitation rights, leave alone custody of the child. Surprisingly, the Hindu Minority and Guardianship Act, 1956, also does not have any independent provisions for obtaining a guardianship order. The result is that children are reduced to being a trophy to be won by a parent with superior rights. Welfare of the children, which should be the paramount consideration, is nowhere to be seen. A voice muffled The plight of NRI children in inter-parental child custody litigation in India is becoming a hotly debated issue. Furious litigation ensues when one parent obtains restraining orders from a foreign court, in answer to a habeas corpus petition filed by the other parent in India. Whoever has custody of the child is the better placed. Why is it a battle of superior parental rights? Where is the voice of the child; who seeks his opinion after talking to him? Can his welfare be decided without speaking to him? In the absence of any international treaty, convention or reciprocal arrangements, Indian court orders cannot be enforced in foreign jurisdictions. Existing remedies limited The Family Courts Act, 1984, was enacted to provide for the establishment of family courts by state governments in consultation with the high court to promote conciliation in and secure speedy settlement of disputes relating to marriage and family affairs. However, 28 years have gone by and neither Chandigarh nor Punjab or Haryana have any family court. Hence, all matters pertaining to guardianship, custody and access to minors are adjudicated by conventional proceedings under marriage laws before the designated civil judges exercising powers under of Guardian Judge under the Guardians and Wards Act, 1890. As a basic principle, the Guardian Judge exercises jurisdiction only if the minor ordinarily resides within the territory of the court. Often, temporary residence within India, after removal of a child from a foreign country, does not fulfil the requirement of the phrase “ordinarily resides” for the Guardian Judge to exercise jurisdiction. And if the judge finds he has no jurisdiction to entertain the proceedings, he cannot pass any order for the return of the child to the country from where he was removed, even when such removal is found to be in violation of an order issued by a court in a foreign country. In such a situation, the aggrieved foreign parent has to move the high court concerned for return of the child to the foreign country, as this would be the only other legal remedy open for relief. An unsuccessful “abducting parent” can move his residence within India to jump the territorial jurisdiction of the court, requiring the aggrieved parent to move yet another court. Abuse of this process can make it dodgy and lengthy. Thus, multiple proceedings, different remedies, slow procedural hearings and delay does not serve the interest of either the child or the affected parent. A possible solution With the increasing number of migratory Indians and people with Overseas Citizens of India status, inter-parental child removal needs to be resolved on an international platform. It is no longer a local problem, but global phenomenon. 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 through 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. Before India accedes to the Convention, it is equally important to create a domestic uniform law with clear, authentic and universal child custody principles. The machinery to implement the convention must first be devised. Divergent views only harm children. Removed children cannot be allowed to live on a no-man’s island. The temptation to wrongfully remove children must be deterred, and the cruel form of abduction must find a clear and simple legislative solution forthwith. Lawmakers must act in the interest and welfare of children.
Distressing scenarios The following are some real-life instances to illustrate the various situations that can result from broken NRI marriages, with children the unfortunate victims. Uncontested cases from foreign court jurisdictions find no solution due to lack of availability of appropriate remedies in the Indian legal system:
n An ailing NRI father suffering from an inoperable brain tumour dies in the UK, unable to meet his daughters brought to India in defiance of British court orders. The Hague Convention, a multilateral treaty developed by the Hague Conference on Private International Law, provides an expeditious method to return a child taken from one member nation to another. The Convention came into force on December 1, 1983. It currently has 80 nation members worldwide, not India. It is time to join the treaty because: n India is no longer impervious to international inter-parental child removal. The writer is a lawyer and member of the UT NRI Cell, Chandigarh.
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