The Tribune, Chandigarh, India

Money for development
Not from dreams but balanced books

It was only in September-end that Punjab Deputy Chief Minister Sukhbir Singh Badal announced a Rs 3,500-crore dream for the development of Ludhiana. A month and a half down the road the city’s Municipal Commissioner says the civic body is so desperately short of funds that it has to sell some of its real estate to meet its expenses. This is the reality. As any small farmer would understand, selling land to meet daily expenses means the end of road for him.

The state government too has been selling land to meet expenses. One, this is not a sustainable way of running a state. Secondly, once the government runs out of its land bank, there will be none left for even setting up public utilities. With land prices rising way beyond the government’s ability to buy, rent would then be the only option.

Many of the promises made by the government during the last tenure could not be met, and those made for this term are awaiting implementation. No government can spend money without earning it. It should explain to the people the real position, make realistic promises, and impose taxes as required. Making false promises is not the way to convince voters to pay. During the first term, the government could blame the previous government, this time that luxury is not available. For Ludhiana, the government has not explained where the Rs 3,500 crore is coming from. Perhaps it is banking on Central funds finally coming its way, having imposed the mandatory property tax and bringing in the new rent Act. That is a constructive way of doing things. Rather than go into further debt or sell the family silver, the government should now wait for the finances to become healthy.

In taking these difficult decisions for the state, the government needs the support of the people as well as the Opposition, which has not been forthcoming. It is forced into populist measures when the Opposition keeps mounting pressure against increased taxes. Shutting eyes will not avert the debt trap; every stakeholder has to realise that.

State apathy
Spurt in deaths by drug abuse

The locality of widows of Maqboolpura, Amritsar, represents a microcosm of the growing menace of drug abuse in Punjab. Like the rest of the state, it fails to come out of its cursed status — of being known as a street of widows. For, its men lost their lives to the abuse of alcohol and drugs, which goes on unchecked despite several well-meaning efforts of a few NGOs.

The failure of these efforts is attributed to the state administration that is often accused of being hand in glove with the suppliers of alcohol and narcotics. According to a survey conducted by the Ministry of Social Welfare and the UN International Drugs Control Programme, at 3.4 per cent, consumption of opiads in the region (Punjab, Haryana and the UT of Chandigarh) was found to be three times higher than the national average. Opiads include opium, smack and heroine. While alcohol consumption was as high as 49.8 per cent, at the national level it was 26 per cent.

It is common knowledge that drugs are supplied to and used by the culprits who are caught trafficking in drugs and are put behind bars, proving a nexus between the agencies working for and against drug abuse. If there is a will, there are ways to check this menace. All the SHO-level police officers should be made accountable for keeping a tab on traffickers and addicts in their area, and the state should create a special cell to deal with drug-related crimes.

For the victims of drug abuse, special residential rehabilitation centres for de-addiction should be created. The state has none so far. Particularly in Taran Taran, Gudaspur and Amritsar districts where the abuse is rampant, such centres should be created on a priority basis. The administration knows well the relationship between drug abuse and the rise in crime rates and HIV cases. By checking the drug and alcohol abuse, many other ills will come under control.

Thought for the Day

We are learning, too, that the love of beauty is one of Nature's greatest healers. —Ellsworth Huntington

ARTICLE

N-dimensions of Pak politics What India should do now
by G. Parthasarathy

PAKISTAN remains the focus of international attention today, not because of any expectations of its contribution to peace, economic growth or regional cooperation, but owing to fears of its pernicious role in international terrorism and nuclear proliferation.

Its propensity for international terrorism lay exposed when Osama bin Laden was found to be living comfortably with his three wives and several children and grandchildren in the heart of Abbotabad cantonment. Its readiness to even resort to nuclear terrorism was earlier exposed when nuclear scientists like Sultan Bashiruddin Mehmood and Chaudhri Abdul Majeed, known to have close links with Osama bin Laden, were detained after the 9/11 terrorist strikes and charged with helping Al-Qaeda to acquire nuclear and biological weapons. Shortly thereafter, the redoubtable Dr A.Q. Khan’s role in transferring nuclear weapons designs and knowhow to Iran, Iraq, Libya and Saudi Arabia became public, though the Americans deliberately avoided implicating Khan’s bosses in the Pakistan Army.

While concerns about Pakistan’s nuclear weapons falling into the hands of terrorists remain, the focus of international attention is now on the fact that with an arsenal of already over 100 nuclear weapons, Pakistan today has the fastest growing nuclear weapons programme in the world. It is heading towards developing the third largest nuclear arsenal in the world. It is not however, any Pakistani General who has displayed the ability to explain why and how all this is happening. This responsibility has been left to Pakistan’s most savvy and hardnosed lady journalist-turned-diplomat Maleeha Lodi, well known for her close links with the Pakistan military establishment.

Drawing attention to why Pakistan is rejecting international calls for concluding a “Fissile Material Cut-Off Treaty” (FMCT), Lodi avers that Pakistan has been seriously concerned about India’s conventional and strategic military build-up. Predictably, she refers to the India-US nuclear deal and the subsequent waiver of the Nuclear Supplier Group’s sanctions on India as contributing to Pakistan’s accelerated development of nuclear weapons and missile capabilities.

In the course of her rationalisation of Pakistan’s feverish quest for new nuclear weapons, Maleeha Lodi explains that after having recently acquired plutonium capabilities to manufacture nuclear weapons, Pakistan can now miniaturise its warheads, which was more difficult earlier, with enriched uranium warheads. It is no secret that over the past one and a half decades China has obligingly provided Pakistan with unsafeguarded plutonium reactors and reprocessing facilities. She also makes it clear that Pakistan is committed to developing a “full spectrum deterrence”, including the use of tactical nuclear weapons. India’s nuclear doctrine makes it clear that while it will never be the first to use nuclear weapons, it will respond with such weapons only if there is a nuclear attack on “Indian territory, or on Indian forces anywhere”.

Pakistan now quite obviously seeks to reserve the right to carry out terrorist attacks on India and threatens that if India responds with a conventional strike to another 26/11-style terrorist attack, Indian forces would face the use of Pakistani tactical nuclear weapons. Pakistani military officials evidently believe that India would not resort to the use of nuclear weapons if its forces are attacked with tactical nuclear weapons. George Perkovich, an American non-proliferation analyst, recently noted: “Thus far the people of South Asia have been spared the potential consequences of deterrence instability because Indian leaders have not retaliated violently to terrorist attacks on iconic targets. India’s “neo-Gandhian” forbearance was counter to the prescriptions of deterrence and cannot be expected to persist as new leaders emerge in Delhi.”

While Pakistan has not formally enunciated a nuclear doctrine, the long-time head of the Strategic Planning Division of its Nuclear Command Authority, Lt-General Khalid Kidwai, told a team of physicists from Italy’s Landau Network in 2002 that Pakistan’s nuclear weapons were “aimed solely at India”. Kidwai added that Pakistan would use nuclear weapons if India conquers a large part of Pakistan’s territory, or destroys a large part of Pakistan’s land and air forces. Kidwai also held out the possibility of use of nuclear weapons if India tries to “economically strangle” Pakistan, or pushes it to political destabilisation. This elucidation, by the man who has been the de facto custodian of Pakistan’s nuclear arsenal for over a decade and a POW in India in 1971-1973, was a precise formulation of Pakistan’s nuclear thresholds. It now appears that Pakistan’s military wants to also keep open the option of mounting further Mumbai-style terrorist attacks by threatening to lower its nuclear threshold by use of tactical nuclear weapons. Since India has no intention of wasting resources through a prolonged conflict with Pakistan or by seizing its populated centres, Pakistan should be left in no doubt that even a “neo-Gandhian” Indian leadership would not sit idly in the event of a repeat of a 26/11 style terrorist attack.

It is interesting that despite a large portion of Pakistan’s Army now being deployed on its borders with Afghanistan, confident that India will not take advantage of this development, the army should be adding new facets to its nuclear doctrine to keep open its options for using terrorism as an instrument of state policy, in relations with India. While the Zardari government is sincere in seeking to improve ties with India, Pakistan today faces a situation where its Army Chief General Kayani publicly warns the judiciary and the elected government not to mess around in dealing with its serving or retired officers accused of corruption and manipulating elections. The sad reality, however, is that it is India that has yielded ground on terrorism continuously after the 26/11 attack, starting with the surrender at Sharm-el-Sheikh.

India resumed the composite dialogue process with Pakistan in 2004 only consequent on a categorical assurance from General Musharraf that any territory under Pakistan’s control would not be used for terrorism against India. India has now, in all but name, resumed the dialogue process despite receiving no assurance either on an end to terrorism, or on bringing the masterminds of 26/11 to justice. The least we should have done is to insist on the centrality of action by Pakistan on terrorism in the dialogue process. Feting Interior Minister Rahman Malik is hardly going to make any difference in the minds of the Pakistan military, which not too long ago barred Mr Malik from entering its headquarters in Rawalpindi. The swagger and bluster of Pakistan’s military is, however, going to depend largely on how the situation across the disputed Durand Line with Afghanistan plays out. It is on this situation that India should remain focussed.

MIDDLE

‘I love my India’
by Shriniwas Joshi

When the wheels of my aeroplane touched the land beneath in Delhi, a joyous I whispered, “Janani janmabhoomish-cha swargadapi gariyasi” (Mother and the land of birth is akin to heaven). The pilot announced, “The airport terminal allotted to me is occupied. There is another airplane hitched to the jet bridge; it is being towed away. So, bear with me for a few more minutes.”

My pride was hurt. We had spent crores of rupees for renovating Terminal 3 of Delhi airport and raised it to equal the standard of any international airport, but when it came to managing things, we were still half a century behind. It had never happened in my to-and-fro travels in the US or Europe. It happened in India, still I love my India.

When I came out of the airport, I got a rickety taxi in which the buckle, where the belt is fastened, was not working and the driver asked me to hold the corner of the belt in my hand just to dodge the police. He was not worried about my life, but he was anxious about the policeman, not because there was a law but because he had to grease the palm of the officer, if he happened to notice it.

I did as directed and whispered, “Still I love my India.” The driver of the taxi, by his continuous utterance, tried to prove that he could run the country better than what Dr Manmohan Singh was doing. I felt like telling him that he should run his taxi well and get the belt-buckle right before chanting mantras of how to run the country effectively.

The colour of the leaves of the trees was not green but brownish due to dirt sitting on these. The roadside drains were full of used polythene bags. The roads were semi-potholed; the street-lights were dim. There was rationing of water and most of the times, the tap would simply hiss like a snake. My gas supply was stopped because years back I had acquired two regulators. I was supposed to surrender one in Shimla when I was in America.

I knew that a man was measured by not where he stood in moments of comfort and convenience, but where he stood at the times of hardship and faced it. So I said, “I love my India.”

I had come from a place where Mississippi flew in full waters, my Beas in Himachal looked like a nullah; my jungles are thin with patches of baldness. The jungles in Grafton adjacent to St. Louis are thick and sun-rays find it difficult to pierce these and other forests there.

We went to polls on November 4 in Himachal and I found posters plastered on rain-shelters and walls of the houses. The daily honking of loudspeakers was jarring to the ears. They, in the US, had gone for polls on November 6 and the towns that I had visited were as clean and noiseless as ever, although the passion for elections there was as deep as here in my state.

Despite all this, I feel like rehashing William Cowper and proclaim: “India, with all thy faults, I love thee still/My country! I would not yet exchange thy sullied lands/ And fields without a flow’r, for verdurous America/With all her resources; nor for bounteous groves/Of golden fruitage, and her myrtle bow’rs.”

OPED Law

Tied up in legal knots
For a Hindu marrying a foreign non-Hindu and seeking permanent settlement abroad, it’s rigmarole of legal tangles. Foreign missions deem such marriages registered under the Special Marriage Act invalid. The modalities of conversion are not any easier.
Anil Malhotra

Foreign embassies and diplomatic missions in India decline to process permanent settlement visa applications of local grooms who wish to migrate to foreign jurisdictions after having married a foreign non-Hindu national under the Hindu Marriage Act (HMA), 1955, and getting the marriage registered under the Special Marriage Act (SMA), 1954, in India.

The reason for such a refusal by a foreign mission is clear. Only two Hindus by religion can marry under the HMA in accordance with the customary rites and ceremonies of either party thereto. Hence, a Hindu by religion cannot solemnise a ceremonial marriage with a non-Hindu in India who does not profess the Hindu faith or religion.

Consequently, in the opinion of a foreign mission, registration of such a marriage under the SMA is invalid. This stumbling block is irreparable since the registration of such a marriage is deemed to be a marriage solemnised under the SMA, conferring the status of husband and wife, and is not recognised by a foreign High Commission for considering a visa application of a Hindu Indian spouse for permanent immigration.

The marriage already solemnised under the HMA is registered under the SMA as a marriage celebrated in other form and cannot be re-registered additionally as a marriage solemnised under the SMA as a “special marriage” since the same marriage cannot be registered twice. The paradox poses a legal dilemma for the parties.

Registration under SMA

The Hindu Marriage Act is an Act to amend and codify the law relating to marriage among Hindus by religion and in which only the ceremonial marriage is compulsory as registration under the HMA. In contrast, the Special Marriage Act provides for a special form of marriage in certain cases and the registration of such and certain other marriages celebrated in other forms. Hence, the civil registration of marriage is an essential requirement under the SMA. Thus, any two persons, irrespective of nationality or religion, can perform and register their marriage as a marriage solemnised under the SMA. However, the SMA also additionally provides only registration of marriages that have been celebrated in other forms. Therefore, marriages solemnised under the HMA can be registered under the SMA since the HMA itself does not provide for any compulsory registration. This, as a community practice, is the course normally adopted by Hindus who marry non-Hindus as they register ceremonial Hindu marriages under the SMA after the traditional Hindu marriage is solemnised by performing customary rites and ceremonies of either party thereto.

Conversion to Hindu religion

Traditionally and conventionally, unless and until a marriage is solemnised in India in accordance with customary rites and ceremonies of either party thereto, it does not gain family or community acceptance. However, overseas travel or permanent migration to a foreign country entails compulsory registration, and ceremony alone does not serve the required purpose.

Marrying under the SMA by registration alone without ceremony also does not generally find acceptance in traditional Hindu culture. Therefore, for a non-Hindu spouse to convert to Hinduism before solemnising the Hindu marriage is the only way to validate the Hindu marriage and confer legal sanctity of its registration under the SMA. However, the dilemma is compounded if the non-Hindu spouse has not converted to Hindu religion before solemnising a ceremonial marriage under the HMA and the folly is realised when the foreign High Commission declines to accept the marriage certificate issued under the SMA, which accompanies the visa application for permanent immigration abroad. Retracing of steps for conversion of religion is difficult and fresh registration of the marriage for the second time is impossible. Cancellation of the earlier registration is equally cumbersome and unworkable, and may entail a lengthy process, often with negative results.

Modalities of conversion

The Constitution of India grants freedom of conscience and the right to profess, practice and propogate any religion of choice as a cherished ideal of secularism. The change from one religion to another is a consequence of an individual's faith or belief and there is no precise definition of “religion” as such. Conversion, like marriage, is a solemn act.

The right to conversion connotes an individual's right to embrace a faith or a religion in preference to the one professed by him earlier and may occur at the time of marriage. Conversion affects rights of succession, marital status and may have other social consequences. Most non-Hindu persons voluntarily embrace Hindu religion before marrying a Hindu. However, law, as declared by the Supreme Court, does not prescribe any particular formality or rituals for conversion, though in some religions, religious texts do require ceremonies to be performed for conversion.

The law on the point as declared by the Supreme Court reads as follows:

In Punjabrao Vs. Dr DP Meshram, All India Reporter 1965 SC 1179, a Constitution Bench of the Supreme Court, while interpreting the expression “profess”, held that if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion, he will be taken as professing the other religion. In the face of such an open declaration, the Supreme Court held that it would be ideal to enquire further as to whether the conversion to another religion was efficacious.

In Perumal Nadar Vs. Ponnuswami, All India Reporter 1971 SC 2352, the Supreme Court held that a person may be a Hindu by birth or by conversion and a mere theoretical allegiance or a bare declaration by a person does not convert him into a Hindu. But, a bona fide intention to be converted to the Hindu faith accompanied by his unequivocal intention may be sufficient evidence of conversion. However, no formal ceremony of purification or expiation is necessary to effectuate conversion.

In Kailash Sonkar Vs. Maya Devi, All India Reporter, 1984 Supreme Court 600, while dealing with a case of reconversion, had held that the main test should be a genuine intention to reconvert by a clear and a genuine intention to go back to the old fold and adopt the customs and practices of his erstwhile caste.

In M Chandra Vs. M Thagamuthu, (2010) 9 Supreme Court Cases 712, the apex court held that it is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second, acceptance into the community to which the person has converted. It is obvious that the need of conversion cannot be altogether done away with.

A reading of these cases clearly demonstrates that since no formal ceremony of conversion is prescribed under codified law, there seems to be a vacuum in statutory law for effectuating voluntary religious conversions.

A non-Hindu may have willingly converted to the Hindu faith before solemnising a marriage as per customary Hindu rites and traditional ceremonies, but no codified or statutory law will give him a conversion certificate.

Thus, the need for enacting a process of law to afford an opportunity to produce documentary evidence of a declaration to substantiate the plea of conversion is a necessity, more so in the realm of Non-Resident Indian (NRI) marriages. This will end the stalemate of uncertainty of proof of conversion required in Hindu marriages for non-Hindu spouses who have registered the marriage under the SMA, and have converted to the Hindu faith before solemnising a marriage under the HMA. Like registration of marriages, even the question of recording and registration of voluntary conversions for marital purposes done before marriage could also be considered by parliamentarians.

The legal dilemma
Only two Hindus by religion can marry each other under the Hindu Marriage Act (HMA). Hence, a Hindu cannot solemnise a ceremonial marriage with a non-Hindu who does not profess the Hindu faith. In the opinion of a foreign mission, the registration of such a marriage under the Special Marriage Act (SMA) is invalid. The registration of such a marriage is deemed to be a marriage solemnised under the SMA as the marriage already solemnised under the HMA is registered under the SMA. It cannot be re-registered additionally as a marriage solemnised under the SMA since the same marriage cannot be registered twice.
What the Law Commission says
In its report (No. 235) on “Conversion/reconversion to another religion — Mode of proof”, the Law Commission of India has made serious salutary recommendations that proper guidelines on the subject of religious conversions will help in avoiding conflicts.
The commission suggests that within a month of the date of conversion, the converted person can send a declaration to the officer in charge of the registration of marriages in the area concerned, who, after public notice and entertaining objections, can issue a declaration recording the conversion of religion.
The commission is inclined to think that a separate enactment or amendments to respective personal laws is not required and the process can be implemented administratively to give effect to its recommendations.
Clearly, the aim, objective and goal of the commission is to obviate the necessity of enactment of any new law on the subject which, in its view, can be resolved by the exercise of executive power by the Central Government by issuance of communications to the state governments and union territories, which in turn can be simply implemented by registration offices administratively.
The fact remains, whether by statute law or executive instructions, the problem needs resolution, and urgently. NRI marriages of non-Hindus cannot be a matter of speculation and confusion. It can scant afford to remain in limbo. The procedure of proving conversion before marrying voluntarily must be simplified. At present, the legal process is way too cumbersome and complex. The process of law must provide an answer for a consistent clear path to be followed, which should be transparent, uniform and visibly easy to all those who need it.

The writer is a Chandigarh-based lawyer