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Wages of subservience Surfeit of degrees |
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No profit in making Syria wasteland
Bliss of being without a mobile phone
Jurisdiction conflicts and anti-suit order
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Wages of subservience THE appointment of retiring Chief Secretary of Haryana PK Chaudhery as Adviser, Development and Governance Reforms, has left people counting the number of superannuated top bureaucrats being offered posts that are often referred to as ‘plum’. Haryana and Punjab have been particularly profligate in this regard, though the practice is prevalent at the Centre too. In many cases, the very commissions to which the appointments are made are of questionable relevance, contributing little to governance or society. At another level, governments are also routinely giving extensions to state civil service officers. The procedure for that is completely arbitrary, with no laid down criteria. Because most of the appointments in commissions are at the whim of the political government, it is in the interest of the officers hoping to get the posts to keep the benefactors happy. That compromises their ability to function without political bias. The fact that an appointment comes as a reward for loyalty keeps the person pliant even in the post-retirement positions, in some of which they have to sit in judgement over the same government’s decisions. The extension of service given to retiring officers at the relatively lower levels amounts to bypassing the constitutional scheme of things, as an extension is a virtual appointment, minus the selection procedure. The Punjab Government has been avoiding making fresh appointments. The Punjab and Haryana High Court has on various occasions intervened in the appointment of public service and information commission heads, asking for transparent selection procedures to be laid down. This has to hold good for all appointments. Another option of a two-year cooling-off period for retiring officers before their appointment anywhere has not found favour even with the Supreme Court. But this needs more deliberation, and should not be ruled out for good. It might also be a good idea to conduct an audit of the various positions and commissions, weighing the contribution they make against the cost incurred on them. If the Lokpal and CBI Director have to be appointed through a given process, why should there be any appointment free of due assessment.
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Surfeit of degrees It’s widely and perhaps rightly believed that education is the panacea for many ills. However, in India the true meaning of education has been misunderstood and erroneously linked with mindless acquiring of degrees. No wonder instead of solving the problem of unemployment, at times education aggravates it. The plethora of colleges in Himachal
Pradesh, for instance, has resulted in the growing number of unemployed. However, the problem is not confined to the hill state. Many surveys have pointed out the unemployability of an overwhelming number of educated Indian youth. Even though India’s higher education system has expanded at a galloping speed post-Independence, its quality has not kept pace with quantity. Though time and again right noises have been made about the need for vocational training, the degree-driven system continues to define our education. Besides, many lacunae plague professional colleges. But for a few premier institutions, the standards of imparting education remain below par. Though India produces one million engineering graduates each year, according to certain surveys only 20 per cent of them are qualified to work in their chosen field. With one of the largest higher education systems in the world, India has to dovetail its education according to the needs and demands of the changing times. As the country has taken steps to reform various sectors, not much thought and planning has gone into overhauling the higher education system. Unless the education system is linked to job opportunities and entrepreneurial skills, disconnect between degrees and employment will only widen. Youth have to be equipped with skills that enable then to enter the work force in sync with their aptitude and potential.
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Thought for the Day
Maybe this year we ought to walk through the rooms of our lives not looking for flaws, but potential.
— Ellen Goodman
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The address of H. H. the Maharaja of Kashmir
His Highness the Maharaja of Kashmir, who presided over the Kshatriya Conference held at Agra on the 28th December 1913, delivered his address to the Assembly exhorting them to educate themselves, unite, and co-operate with Kshatriyas all over country for mutual advantages. His Highness addressed a fairly large body and deplored the apathy of many of the Kshatriya chiefs in the work of the Conference. They are men gifted with good position which they should use for amelioration of the less fortunate members of this community. In these days of peace they can apply their talents to any art or profession for which they have special aptitude. His Highness then pointed out that the Kshatriya conference had no politics, but concerned itself with social and educational problems. The distribution of honours and titles
It is the fashion for executive officers, even for heads of Governments, to complain that they receive no assistance from non-official Indians, and that Indians take no lively interest in the honorary work assigned to them on Municipalities and District Boards. On the other hand it is also complained that non-official Indians of education and capacity are not encouraged to interest themselves in such honorary work. Honest and disinterested but independent efforts do not generally receive that encouragement and support which subservient and interested efforts do; and it is seldom that real honorary service bereft of motives underlying it. We are pleased to note that in provinces other than our own municipal commissioners, district board members, Justices of the Peace (Bombay), and members of Legislative Councils who are reputed to be independent and whose upcompromising attitude has not unoften been a source of embarrassment to officials have been selected for the bestowal of
honours.
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No profit in making Syria wasteland Nearly four years into the Syrian civil war, the crisis has fallen through the cracks of the international game of diplomacy with no hope of an early end to the death, devastation and misery of a people — millions of whom are refugees in neighbouring countries while millions more are displaced at home. The United Nations and its main mechanism for making war and peace, the Security Council, is ineffectual while the one recognised mediator, the veteran diplomat Lakhdar Brahimi, is pinning a forlorn hope on a Geneva conference this month. The truth is that President Bashar Assad presides over his deeply divided and ruined country by grace of the Russian veto in the Security Council. In fact, Moscow scored a strategic triumph in getting the Damascus regime to give up its chemical weapons under international supervision. The ostensible purpose of the second Geneva conference is to get the Assad regime and the disparate opposition forces to talk about a transition arrangement for handing over power. What no one can explain is why President Assad, who has an advantage in ruling over the ruins of his country and the freedom to use modern arms and air power to try to decimate the opposition, should choose to step down. The nature of the opposition is, of course, a major problem because extreme Islamic groups, some of them linked to Al-Qaida, are the most effective fighters and are being armed and supported by such countries as Qatar and Saudi Arabia. Western support for the moderate components of the opposition has been hesitant and fitful because of fears that its aid might land in the hands of the jihadists. President Barack Obama has been chastened by the American experiences in fighting the Iraq and Afghan wars and has been vehemently opposed to getting involved in a new war in Syria. Turkey, an enthusiastic backer of military intervention in Syria, was the man supporter and cheer leader of a US intervention and has been canvassing for a muscular US response, to little effect. Even the threat of military action was trumped by the Russian proposal to destroy its stockpiles of illegal chemical weapons. President Assad is using this process to his advantage by going after opposition forces, the most effective of whom are extremist groups. With the Russian veto in the UN Security Council an ever-present threat, a key international organisation is paralysed, agreeing thus far only on the destruction of Syrian chemical weapons. The US, still recovering from the consequences of its two interventions in Iraq and Afghanistan, is loath to intervene militarily in another regional war and is giving largely symbolic support to the non-extreme factions of the Syrian opposition. In fact, the Sunni Arab states such as Qatar and Saudi Arabia have been somewhat indiscriminate in arming opposition forces, with unwelcome consequences for the future. There are few new ideas on the horizon, with the pro- and anti-Assad regional actors well known and recognised. The Sunni states such as Qatar and Saudi Arabia are arming the opposition forces while Western support, hesitant at best, is behind the Free Syrian Army and the other moderate groups, most of them grouped in Turkey. The Turkish Government has pulled back a little from its full-throated support for the Syrian opposition, having been rebuffed by the Obama administration in accepting any of its schemes in enforcing a no-fly zone over a possible area in Syria for refugees and then not conducting missile strikes to punish Syria for the use of chemical weapons. The Obama administration and a majority in America are loath to involve themselves militarily in another war in the Greater Middle East after Iraq and Afghanistan. Although the pendulum has swung somewhat in favour of President Assad, given his use of overwhelming and, by all accounts, brutal force, there can be no strictly military solution to the crisis and hence outside powers, including the Arab League, are hoping against hope that something might emerge from the Geneva meeting, if it does take place. Given the composition of Syria’s population, with the ruling Alawites being a minority to the Sunni majority, in addition to other groups, a possible solution would involve a rearrangement of the power equation. President Assad probably believes that the tide is turning in his favour on the ground and in view of the increasing prominence of the pro-jihadist groups, some of them linked to Al-Qaida which is making the US and other Western powers skittish. But if the Assad regime carries on with its muscular policy of defeating his opponents at any cost and the world continues to stand by, Balkanisation of the country would be a distinct prospect. That would introduce new complications to the Middle East (a more precise formulation than West Asia) which would make the present turmoil worse for regional and outside powers. At present, there is a broad division of backers for either side. The Sunni states such as Saudi Arabia and Qatar, in addition to Turkey, are in the Anti-Assad camp as are of course the Western powers. Ranged on the other side are Iran and the Lebanese Shia group as well as the new majority Shia-ruled Iraq, apart from Russia seeking to buttress its strategic regional interests. The outside regional actors have not been discriminating in arming opposition groups, some of them of the extremist variety. The question of inviting Iran to the new Geneva talks has gained salience because it would undoubtedly make it more inclusive of supporters of Assad. But the West, even as it is negotiating with Tehran over its nuclear programme, is still not reconciled to dealing with it on Syria across the table. But options for both the regional and outside actors are narrowing by the day. Admittedly, Mr Assad is fighting for his very political survival, but the world must consider what profit there would be in converting Syria into a greater wasteland than it already is for one reason: The minority Alawites must rule.
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Bliss of being without a mobile phone TODAY when the large chunk of persons, cutting across all socio-economic groups, take pride in owning a mobile, I continue to enjoy the bliss of being mobile-less. And I have my reasons to shun this most revolutionary device of the century. It dates back to 2007, I was at the Colombo Airport when the LTTE attacked it. My flight to Chennai was scheduled at 3.30 in the morning. Slouching in the comfort of sofa, sudden shouts and cries of passengers woke me up. No doubt, everybody was shaken. However, I saw no sense in disturbing my loved ones in the middle of the night and causing them worry when there was little they could do. All the flights were cancelled. Realising that my departure would be possible only the next day, I saw good sense in catching up on my sleep. The next morning, Air Lanka arranged the flight and on landing at Chennai, I made a call to my wife from the STD booth. As expected, she had no idea of the previous night’s incident in Colombo. Had one been in possession of a mobile, I would have called my wife who would then have called my daughters in other cities. My phone would have remained busy throughout the night and I would have spent sleepless night like other passengers did. My family would have also suffered an avoidable nightmare. Not to forget I would have been poorer by at least Rs 2,000 plus roaming as well as other charges. The dark side of a cell phone continues to strike me every now and then, but what came as a proverbial last straw and completely ruled out any possibility of a rethink on my part is a shocking incident that I read about in the newspaper. A Tamilian working in Dubai wanted to be fair both to his mother and wife and bought them separate mobile phones. Each one would give her story to him late in the night on the mobile, which would be overheard by the other. One day, his wife got so enraged with what her mother-in-law had said to her son that she bludgeoned the former to death while she was asleep. Murders may not be there in all the homes but murders of relationships are definitely happening. My conclusion may seem idiotic to millions of cell-crazy Indians but it is worth a thought.
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Jurisdiction conflicts and anti-suit order AN interesting offshoot emerges in diplomat Devyani Khobragade’s case. On September 20, the Delhi High Court had issued an exparte anti-suit injunction restraining her former maid Sangeeta Richard and her husband Phillip Richard from “initiating any action or proceeding or filing any suit or claims” against Devyani in any court, tribunal or forum in any country outside India arising out of or in connection with the employment of the maid. This class of litigation in the realm of conflicts of laws under private international law, by legal parlance, is labelled as an anti-suit injunction and gives rise to an order issued by a competent court in India that prevents an offending party from commencing or continuing a proceeding in another jurisdiction or foreign forum. The foreign court cannot be and is not restrained in such process as Indian courts cannot injunct a foreign court. However, if the opposing party contravenes such an order, a contempt of court may be issued by the domestic Indian court against the offending party located in the foreign jurisdiction. Not very often invoked, anti-suit injunctions are preferred in personal actions of matrimonial causes besides commercial matters and may be used to prevent forum shopping or checking oppressive and vexatious litigation in overseas jurisdictions to avoid conflicting judgments. Most often, its actual success is difficult. Regardless, it is a developing jurisprudence in a country with a 30 million diaspora in 180 countries over the globe contributing immensely to cross-border litigation.
Diplomat’s case Undoubtedly, the matter related to employment issues between the parties was an exparte interim injunction. However, upon the matter being heard again on December 13, it is reported that the Delhi High Court was informed that the notice sent by the court had not been served on Sangeeta in the US. Her husband who was served did not put in appearance and was proceeded exparte. Accordingly, the Delhi High Court again ordered that the court’s summons be served upon Sangeeta afresh by an approved courier and through ordinary process. Momentarily, the matter rests there as of now till February 5, 2014. Meanwhile, Devyani had already been arrested in the US on December 12, creating a diplomatic furore with cross allegations of human rights violations and domestic abuse charges. Earlier, when the Delhi High Court was seized of the matter in September in the application for interim injunction, it was observed that Devyani posted as Deputy Consul General, Consulate General of India, New York, had employed Sangeeta as a domestic help to take her to the US as India-based domestic assistant (IBDA), which is a facility provided by the Government of India to diplomats serving abroad. A contract dated November 23, 2013, was executed at New Delhi between them, whereby Sangeeta was to work only for Devyani in the US and was to return to India promptly upon leaving this employment. Sangeeta proceeded to the US with Devyani on an air ticket given by the Government of India. Reportedly, Sangeeta is stated to have left Devyani’s household in the US on June 21, 2013, and had not returned.
Pending matter Whilst granting the anti-suit injunction in Devyani’s case, the Delhi High Court placed reliance on a previous order of March 14, 2012, passed by it in another pending anti-suit injunction titled Union of India and Others Vs Shanti Gurung and Others, whose facts were said to be somewhat akin to Devyani’s case. In the previous pending matter, another employee i.e. Shanti, was employed as a service staff member under the IBDA and was given a visa by the US Embassy to accompany a career Indian diplomat working on a official full-time assignment in the US from 2006 to 2009. Reportedly, Shanti is said to have disappeared from the apartment of the diplomat in 2009 in the US and whereafter an official notification of which was made to the US authorities leading to official revocation of her passport by the Government of India. The Delhi High Court order of March 14, 2012, in an anti-suit injunction, by the Diplomat and the Union of India, also records that Shanti filed a complaint in the United States District Court, Southern District, New York, alleging maltreatment, forced labour, trafficking, failure to pay wages, etc. by the Indian diplomat; and to which the Government of India responded in the US, objecting to the jurisdiction of US Courts to try the said matter as also raising pleas of invalid service. Regardless, the US court allowed the motion for default judgment on February 22, 2012, in favour of Shanti and against the diplomat awarding $1,458,335 in her favour. A period of 14 days from the service of this judgment was granted to file objections before the US court.
Contentious claims It was averred before the Delhi High Court in the anti-suit injunction to restrain Shanti from pursuing further proceedings in the US court, that the diplomat and the employee both being Indian citizens in employment of the Union of India, they would be governed by domestic laws of India. Furnishing proof of payments to Shanti in India at a bank in New Delhi, the Delhi High Court observed that it cannot be prima facie conceived that she was trafficked or kidnapped from India. It was also urged that the courts in the US had no jurisdiction to pass orders against an Indian diplomat posted officially for an assignment in the US on account of sovereign immunity for which reliance was placed on the Hague Service Convention and the Vienna Convention on Consular Relations. It was agitated before the Delhi High Court that if the US default judgment awarding damages was finally decreed, it would “seriously interfere with judicial sovereignty of India besides the same being in violation of the Vienna Convention, the Hague Convention and the Foreign Service Immunity Act, 1976”.
Court observations The Delhi High Court in its anti-suit injunction order of March 14, 2012, without expressing any views on the truthfulness of the allegations levelled by Shanti leading to the passing of US default judgment, observed that it was incomprehensible as to why no complaint was made by Shanti till July 2010, specially when she had visited India with the diplomat on vacation in January 2007. The court found force with the contentions that any order passed by the US courts would tantamount to interfering in the right of Government of India to determine the terms and conditions of the employment of its diplomatic officers posted abroad, including terms by and under which assistants are provided to such diplomats. Furthermore, for any alleged ill-treatment by any employee, the US courts would have no jurisdiction and the remedy would lie with the Indian courts as per the standard agreement between the diplomatic agents and their domestic servants. Applying the tripartite test of prima facie case, balance of convenience and irreparable loss and injury, on March 14, 2012, the Delhi High Court granted an exparte anti-suit injunction against Shanti and others from pursuing their complaint or relying upon the default US judgment to get a final judgment or proceed to enforce the same. Reportedly, the anti-suit injunction in the Delhi High Court, where all parties are represented by counsel, is continuing and the matter is pending for February 5, 2014, as also the decree of the US court is stated to still not have been executed. Issues relating to applicability of Indian law in cases such as cited above and the authority of Indian courts to adjudicate such disputes executed in India between employees and diplomats as also norms of judicial comity requires serious deliberation to avoid conflict of jurisdictions. Personal disputes originating on Indian soil must be determined in India. Anti-suit injunctions are perhaps the only answer if there is an impending risk of conflicting judgments and if the proceedings in the court of foreign jurisdiction would perpetuate injustice or usurp the jurisdiction of a domestic court. A blind eye cannot overlook vexatious or oppressive litigation. Thereafter, violation of an anti-suit injunction passed against an offending party should be seriously pursued in contempt jurisdiction. Surely, Indian law must come to rescue. The yeoman verdicts of Indian courts are a big crutch. However, the need for a preventive remedy is stronger than a powerful cure at the end. What can be prevented must be stopped. What should not be suffered should not be endured. Anti-suit injunctions in such matters in fit cases must deter oppressive foreign court orders without technicalities. The majesty of Indian law must prevail.
The injunction The suit is in the realm of conflicts of laws under private international law and gives rise to an order issued by a competent court in India that prevents an offending party from commencing or continuing a proceeding in another jurisdiction. Indian courts cannot injunct a foreign court. But if the opposing party contravenes such an order, a contempt of court may be issued by the domestic Indian court against the offending party located in the foreign jurisdiction. Not invoked often, the injunction is preferred in personal actions of matrimonial causes, commercial matters and may be used to prevent forum shopping or checking oppressive and vexatious litigation in overseas jurisdictions to avoid conflicting judgments.
— The writer is a Chandigarh-based lawyer.
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Everybody was running in panic for safe shelter and following them was my instinctive reaction. Chaos reigned for almost one hour but then the threat subsided and order was restored. Now, everyone was impatient to share their horrible ordeal with kith and kin and the main hall, which was shrouded in pin-drop silence a few minutes back, was abuzz with cacophony of mobile ring tones Emotional outbursts on mobiles were the order of the hour.