by NNLRJ INDIA

Fresh directions in custody battles

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

Anil Malhotra in THE TRIBUNE CHANDIGARH

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

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

Courts differ

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

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

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

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

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

Balanced view

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

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

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

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

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

Fresh guideline laid down by the Supreme Court of India

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

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

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

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

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

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

No quick fix solution in custodial conflicts

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

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

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

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

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

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

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

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

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

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

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

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

Why should India be interested in joining the 1980 convention?

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

The present situation plays into the hands of the abducting parent

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

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

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

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

http://www.tribuneindia.com/2011/20110527/edit.htm#6

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by NNLRJ INDIA

Conflicting signals

V. VENKATESAN IN FRONTLINE

The Supreme Court judgment dismissing the curative petitions against its verdict in the Bhopal gas criminal case leaves observers nonplussed.

ON May 11, a Constitution Bench of the Supreme Court unanimously delivered a judgment that, perhaps, should never be considered a precedent. The Bench, comprising Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam, held that a judgment delivered by the Supreme Court could not bind a lower court and that no decision by any court, including the Supreme Court, could be read in a manner as to nullify the express provisions of an Act or the Code of Criminal Procedure (CrPC).

The judgment, according to several experts, is deeply flawed. The Bench delivered the judgment while dismissing curative petitions filed by the Central Bureau of Investigation (CBI) and others for recalling and setting aside the Supreme Court’s judgment in Keshub Mahindra vs State of Madhya Pradesh, delivered on September 13, 1996. In Keshub Mahindra, a two-judge Bench, comprising Justice A. Ahmadi and Justice S. Majmudar, had quashed the charge of culpable homicide under Section 304 (Part II) of the Indian Penal Code, framed by the sessions court, against nine Indian accused in the Bhopal gas disaster criminal case and had directed the trial court to frame charges against them under Section 304-A, IPC.

The three foreign accused – the then chief of the Union Carbide Corporation, Warren Anderson; UCC; and Union Carbide Eastern Inc. – were absconding and did not, like the Indian accused, appeal against the charge of culpable homicide framed by the trial court. The Madhya Pradesh High Court had upheld the charge of culpable homicide against the accused before they went in appeal in the Supreme Court.

Under Section 304 (Part II) of the IPC, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment, which may extend to 10 years, or with fine or with both if the act is done with the knowledge that it is likely to cause death. Section 304-A, on the other hand, seeks to punish those causing the death of any person by doing any rash or negligent act not amounting to culpable homicide with imprisonment for a term that may extend to two years, or with fine, or with both.

More important, in Keshub Mahindra, the Supreme Court invoked its powers under Article 142 of the Constitution. This Article empowers the Supreme Court to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter pending before it, and such decrees or orders shall be enforceable throughout the country. In Keshub Mahindra, the court invoked this Article in order to avoid multiplicity of proceedings and to hold that the material led by the prosecution could only support charges under Section 304-A against the accused. It is fairly well settled that once a superior court holds that only Section 304-A of the IPC is applicable against the accused, Section 304 (Part II) will be inapplicable against the same accused in that case because the charge of negligence automatically excludes the charge of culpable homicide.

Surprisingly, the Supreme Court, in its May 11 judgment, did not deal with the question of how a decree or order made under Article 142 of the Constitution cannot be binding on a trial court. The curative petitions argued that because of the judgment in Keshub Mahindra, the trial court (Chief Judicial Magistrate, Bhopal) was barred from exercising its judicial power under Section 323 of the CrPC. This provision enables a magistrate to alter the charge of negligence by instituting the charge of culpable homicide against the accused and commit the case to the sessions court on the basis of evidence that comes on record during the trial.

But the trial court had observed that in view of the Supreme Court’s judgment in Keshub Mahindra, no court had the power to try the accused for an offence higher than the one under Section 304-A of the IPC. Accordingly, the Chief Judicial Magistrate, in his judgment delivered on June 7 last year, found eight of the Indian accused (one had expired during the trial period) guilty under Section 304-A and sentenced them to two years’ imprisonment.

Appeals have been filed in the sessions court with a prayer for the enhancement of the sentences against the accused on the grounds that the CJM erred in committing the trial of the case to the Sessions Court under Section 323 of the CrPC. These appeals, filed by the CBI and the State of Madhya Pradesh, are pending before the sessions court in Madhya Pradesh. Meanwhile, the CBI and others had filed the curative petitions in the Supreme Court in the hope of securing substantive justice for the victims and survivors of the disaster.

Patently flawed

Ironically, the Supreme Court’s holding in Keshub Mahindra was patently flawed as the CBI even in that case had argued that evidence on hand supported the charge of culpable homicide against the accused. But the May 11 judgment defends the Keshub Mahindra judgment to the hilt.

The Kapadia Bench observed: “In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying ‘on the materials produced by the prosecution for framing charge’. ‘At this stage’ is a kind of a constant refrain in that judgment.”

But those familiar with the Keshub Mahindra case in 1996 would aver that the Ahmadi-Majmudar Bench at that time simply and inexplicably ignored the materials cited by the CBI in support of the charge of culpable homicide. Therefore, its assertions that its “findings were based on materials gathered in investigation and brought before the Court till that stage” were not at all convincing, as they were contrary to facts.

In the curative petitions case, the Supreme Court was expected to examine the claims of the Ahmadi-Majmudar Bench for their veracity and set them aside, as they were contrary to facts. But the Kapadia Bench wrongly concluded that the 1996 judgment was not a fetter against the proper exercise of powers by a court under the CrPC and that the remedy for the curative petitioners lay in approaching the appellate/revisional courts to correct the magistrate who misread it.

The Supreme Court even felt vindicated by the arguments of the CBI and the State of Madhya Pradesh in the pending appeals before the Sessions Court in Madhya Pradesh. Observers are nonplussed that the apex court chose to rely on the arguments of a party in a pending case in a lower court, rather than independently examine the plea of the petitioners on merit.

‘Black day’

The Bhopal Group for Information and Action and other survivor organisations have expressed dismay over the judgment and called May 11 another black day for justice. They recalled that the Supreme Court, without conducting even one hearing, had dismissed the review petition filed by three survivor organisations against the Keshub Mahindra judgment in 1997. By its May 11 judgment, the Supreme Court heaped more injustice on the victims of the disaster, they said.

Legal researcher and commentator Usha Ramanathan, who has been closely following the Bhopal disaster litigation, put it succinctly: “The May 11 judgment shows that the Supreme Court lacked institutional memory with regard to what the Bhopal victims got out of the litigation. The option of curative petitions confers on the Supreme Court an extraordinary jurisdiction to correct its own past judgments. Yet, the court reaches an extraordinary conclusion and tells the lower court that it could violate its own order. It makes no sense. The court simply borrowed the formula suggested by the counsel for the accused. It should have either set aside the Keshub Mahindra judgment, or done nothing.”

The May 11 judgment also supports the view that the Supreme Court today sends discordant signals about the correct legal position. Recently, a two-judge Bench of the court led by Justice Markandey Katju passed strictures against a trial court judge for ignoring the Supreme Court’s ruling. The Kapadia Bench, however, thinks that there is nothing wrong if a lower court proceeds as if it is not bound by the Supreme Court’s ruling delivered earlier.

http://www.hinduonnet.com/fline/stories/20110603281110800.htm

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Collegium system: Amicus report says need to revisit 1993 verdict

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

KRISHNADAS RAJAGOPAL  IN THE INDIAN EXPRESS

Eighteen years after a ‘polarised’ nine-judge Bench delivered a majority verdict which led to the collegium system of appointment of judges, a senior lawyer’s report in the Supreme Court reproduces the misgivings felt by one of them about what happened in 1993. The report by senior advocate A K Ganguli, the Supreme Court’s own amicus curiae, uses the opening remarks of Justice M M Punchhi’s dissenting judgment in what is famously called the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India) to convey that the majority verdict of 1993 was a bunch of “individual opinions” drafted by a majority over the summer vacations without prior consultations among the nine judges.

The verdict gave the Chief Justice of India primacy over the government on the appointment of judges to high courts and Supreme Court, and ultimately led to the setting up of the collegium system, now a controversial point for its alleged lack of transparency.Ganguli was appointed amicus by a Bench of Justices Deepak Verma and B S Chauhan in a petition filed by NGO Suraz India Trust, seeking “review” of the 1993 judgment.

After Attorney General G E Vahanvati, appearing for the government, also seconded Ganguli’s claim, the Bench referred the case to Chief Justice S H Kapadia on April 4, 2011 to choose on a larger Bench to re-visit the majority verdict. The Bench, in its order, said the case involved “very complicated legal issues”.“This nine-judge Bench sat from April 7, 1993 to hear this momentous matter concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all, after July 12, 1993, on re-opening of the court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which engaged our attention, striving for an unanimous decision concerning mainly the institution of the CJI, relatable to this court,” Justice Punchhi narrates the turn of events.

Justice Punchhi, who went on to become the Chief Justice of India in 1998, goes on to say that he was however “overtaken” when he received a draft opinion dated June 14, 1993 authoured by Justice J S Verma, who represented four other judges of the Bench, thus forming a majority.“The hopes for a free and frank discussion vanished,” Justice Punchhi said as he explained how the rest of the Bench wrote separate judgments till September 9, 1993 without any further consultations. “No meaningful meeting thereafter was possible as views by that time seems to have been polarised,” Ganguli quotes Justice Punchhi to point out that it is time to re-visit a judgment delivered in such a divided manner.

A final decision on the issue may be made after the court starts its session after this year’s summer vacation.

http://www.indianexpress.com/news/collegium-system-amicus-report-says-need-to-revisit-1993-verdict/794814/0

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Mending the Food Security Act

New National Advisory Council(NAC)of India: So...

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Jean Drèze IN THE HINDU

The National Advisory Council has proposed a framework for the National Food Security Act. But its potential could be wasted by a flawed approach to the PDS.

Two years have passed since the Central government announced that a draft National Food Security Act (NFSA) would be posted on the Food Ministry’s website “very soon.” After prolonged deliberations, a detailed framework for this Act has recently been proposed by the National Advisory Council (NAC), and a draft is on the anvil. This is a “compromise draft” of sorts, heavily influenced by the government’s own concerns and priorities.

The NAC framework includes important provisions relating, for instance, to child nutrition, reform of the public distribution system (PDS), and redress of grievances. It has the potential to put all food-related schemes on a new footing, in a rights framework. However, this potential is in danger of being wasted by a flawed approach to the PDS.

In this approach, the PDS rests on a three-way division of the population, among “priority,” “general” and “excluded” households. (This article focusses on rural areas.) Priority households, covering at least 46 per cent of the rural population at the all-India level, are to get 35 kg of grain a month at “Antyodaya prices” (Rs. 3 a kg for rice, Rs. 2 for wheat and Re. 1 for millets). General households will get 20 kg at no more than half of the Minimum Support Price. And excluded households, which account for 10 per cent of the rural population, will get nothing.

This framework is problematic. First, it hinges on a lasting division of the population into three groups, without any clarity as to how the groups are to be identified. In the absence of any obvious alternative, the NAC is effectively falling back on the Below Poverty Line census to identify priority groups. This is a major setback — the NAC’s entire work began with a virtually unanimous rejection of BPL-based targeting for the PDS. Exclusion errors in earlier BPL censuses were very large, and the next BPL census is unlikely to fare much better, judging from the pilot survey.

Second, since identification criteria are left to the Central government, with some discretion for State governments, nobody has guaranteed PDS entitlements under the Act, except for a few ultra-marginalised groups (such as the so-called Primitive Tribal Groups) which have a right of “automatic inclusion” in the priority list. Other households have no legal entitlement to be included in the priority list or, for that matter, in the general list. Therefore, they have no guaranteed PDS entitlements at all. This undermines the basic purpose of the Act.

Third, the transition from the current Above Poverty Line-Below Poverty Line framework to the NAC framework is likely to be disruptive. There are at least three major sources of disruption: the creation of an “excluded” category; the transition to a new BPL list; and the switch from household to per capita entitlements. Each of these changes entails a loss of entitlements for significant numbers of households. Meanwhile, the entitlements of other households will be enhanced. Can we expect this transition to happen without major tensions, or even to be completed at all?

Fourth, the NAC framework fails to “de-link” PDS entitlements from official poverty estimates, and to prevent a rapid shrinkage of PDS coverage over time. It is well understood by now that official poverty lines in India are abysmally low, and that undernutrition is not confined to households below the “poverty line.” In the NAC framework, 46 per cent coverage of priority groups in rural areas corresponds to the proportion of the population below the “Tendulkar poverty line,” plus a margin of 10 per cent for targeting errors. This is significantly higher than the current BPL coverage of about 33 per cent. But except for ruling out any reduction of PDS entitlements before the end of the 12th Five Year Plan (which is only a few years from now), nothing in the draft NFSA prevents the government from reducing PDS coverage in tandem with official poverty estimates over the years.

Fifth, the idea of a universal PDS in the poorest 200 districts was dropped from the NAC framework (after being agreed and placed on record). This was an important idea, because any targeting process here is likely to lead to massive delays, fraud, and exclusion errors. In many of these districts, the local administration has little credibility. Large numbers of poor households are outside the BPL list, and are likely to remain excluded from the proposed “priority” list. Further, targeting is pointless in areas where an overwhelming majority of the population is vulnerable to food insecurity. Launching a universal PDS in these districts would have addressed a large part of the food insecurity problem in rural India in one go, at a small extra cost.

Sixth, the NAC abandoned another important idea as it went along: the automatic inclusion of all Scheduled Caste and Scheduled Tribe (SC/ST) households in the priority list — unless they come within the standard exclusion criteria. This will be a major protection against exclusion errors, and a well-justified form of positive discrimination in favour of SC/ST families. But the idea was dropped, on the grounds that it is difficult to reconcile with pre-specified “caps” on the coverage of priority groups at the State level based on poverty estimates. Punjab, for instance, has a low poverty ratio but a high proportion of SC/STs in the population — there is no obvious way to handle this.

In short, the NAC framework not only perpetuates the flaws of BPL targeting but also institutionalises artificial social divisions under the law. It is not difficult to imagine the Act being used as a foothold to extend these divisions to other domains.

The obvious alternative, a universal PDS, is a ‘no-no’ for the Central government. Is there another way to repair, or at least contain, the damage? I believe there is. Before coming to that, let me mention an interesting finding of recent BPL identification studies (by Reetika Khera, Sabina Alkire, and Himanshu, and others). These analyses, mainly based on the 2004-05 data from the National Sample Survey or the 2005-06 data from the National Family Health Survey, suggest that about 25 to 30 per cent of households in rural India meet simple, transparent and verifiable “exclusion criteria,” such as having a government job, owning a motorised vehicle, or living in a multi-storied pucca house.

This suggests a simple but far-reaching modification of the NAC framework: expand the excluded category, but extend “priority” entitlements (35 kg of grain at Antyodaya prices) to all other households. With an exclusion ratio of, say, 30 per cent, the foodgrain requirements will be the same as in the current NAC framework. The financial cost will be a little higher (because all entitled households will pay Antyodaya prices), but the extra cost will be a small fraction of the total food subsidy.

In this “quasi-universal” framework, every rural household will be entitled, by law, to 35 kg of grain a month at Antyodaya prices, unless it comes within the well-defined “exclusion criteria.” Everyone will be clear about their legal entitlements. The burden of proof, so to speak, will fall on the government to exclude a household, and poor households will be well protected from exclusion errors. State governments will be free to move even closer to universalisation, if they wish, by waiving some exclusion criteria and contributing additional resources to the PDS (as many States are already doing). Automatic inclusion of SC/STs (unless they come within the exclusion criteria) will be built in. PDS entitlements will be de-linked from the APL-BPL rigmarole, and from poverty estimates. And while some social division will remain, it will be “at the top,” without undermining solidarity among disadvantaged groups.

Two further modifications of the NAC framework will round up this proposal quite nicely. First, the idea of a universal PDS in the poorest 200 districts could easily be reinstated, by waiving exclusion criteria in these districts for an initial period of, say, 20 years. Second, the Act could be gradually extended to the whole country, over a period of, say, three years, starting with the poorest 200 districts. This will make it easier to meet the additional foodgrain requirements in a phased manner.

This approach is not perfect, but it seems much preferable to the confused, impractical and divisive framework that has emerged from the NAC (or rather, from protracted discussions between the NAC and the government). It will be easy to adapt the current NFSA draft to this approach, while retaining the valuable work that has been done by the NAC on other aspects of the draft. This small modification could make a big difference.

(The author is a Visiting Professor at the University of Allahabad. The views expressed here are his own.)

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Dr. Moily Addresses Round Table in St. Petersburg on ‘Legal Security of Business Transactions, Investments and Financial Instruments-New Challenges of the Global Crisis’

Following is the text of the Speech of Dr. M.Veerappa Moily, Union Minster for Law and Justice, while addressing the Round Table on “Legal security of business transactions, investments and financial instruments-New Challenges of the Global Crisis” in St.Petersburg today :-

‘Globalization’ refers to the process of integration and convergence of economic financial, cultural and political systems and interests across the world by adopting a holistic approach. From an economic or commercial perspective, so as to understand international business, globalization may be defined as the increasing economic integration and interdependence of national economies across the world through a rapid rise in the cross-border movement of goods, services, technology and capital.

Since the global financial crisis disturbed the nations and turtled their financial position, the global financial crisis has become a ‘credit tsunami’.

INCIDENTS OF FINANCIAL CRISIS:

(i) Subprime crisis in the US and Euro zone debt crisis along with the global financial slowdown.
(ii) Collapse of Lehman brothers in September 2008 and thereafter the fall of entire wall-street.
(iii) Commodity-dependent economies are exposed to considerable external shocks stemming from price booms and busts in international commodity markets.
(iv) Many Asian countries have seen their stock markets suffer and currency value going on a downward trend. Asian products and services are also global, and slowdown in wealthy countries means increased chances of a slowdown in Asia and the risk of job losses and associated problems such as social unrest.
(v) A number of developed countries have seen several sectors struggling and asking for bailouts. We know even some countries have not been an exception to the bailout syndrome.

IMPACT OF GLOBAL FINANCIAL CRISIS ON INDIA:

Fortunately, India is the least hit by recession as far as internal financial disturbances are concerned and probably most important reason for this is that India’s 95% of debt is financed internally. Because of global recession, Indian economy which was projected to grow at approximately 9% is now expected to see a little slow down. However, now it has been projected to grow approximately at the rate of 9% by 2012. One of the reasons for this lowering of growth projections has reduced foreign direct investment inflows pursuant to global financial crisis.

India is the 7th largest and 2nd most populous and 4th largest economy in the world. A series of ambitious economic reforms aimed at deregulating the economy and stimulating foreign investment has moved India firmly in to the front runners of the rapidly growing Asia Pacific Region and unleashed the latent strength of a complex and rapidly changing nation. India’s time tested institutions offer foreign investors a transparent environment that guarantees the security of their long term investment. These include a free and vibrant press, an independent judiciary, a sophisticated state of art legal and accounting system and a user friendly intellectual infrastructure.

The Parliament has enacted the foreign Exchange Management Act, 1999 to replace the Foreign exchange Regulation Act, 1973. This Act came into force on the 1st day of June 2000. The object of the Act is to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India.

CREATION OF CIBIL:

India realizing the need of a credit information system in order to enable informed credit decisions and aid fact based risk management on the basis of the recommendations of the Working Group a Credit Information Bureau (India) Ltd., (CIBIL) was set up in January 2000 under the Companies Act, 1956 with equity participation from commercial banks, Financial Institutions (FIs) and Non Banking Finance Companies (NBFCs) registered with the Reserve Bank, making it a functional PPP initiative.

TAX RE-FORMS:

Since the onset of liberalization in India, tax structure of the country is also being rationalized keeping in view the national priorities and practices followed in other countries. A Foreign national working in India is generally taxed only on their Indian income and income received from sources outside India is not taxable unless it is received in India. Further, foreign national have the option of being taxed under the tax treaties that India may have signed with their country of residence and India has so far signed and notified 70 Bilateral Agreements for Avoidance of Double Taxation (DTAA) with 70 different countries. In order to have a comprehensive tax law to regulate the tax regime further “the Direct Tax Code” and the “Goods and service Tax law” have been proposed.

Today we have the system of investment treaties between member States governing multifarious foreign investment transactions taking place to and fro between the nationals of member states. Much before the investment treaty system in 1959, there was another system of investment protection which MNCs had virtually devised themselves for the protection of their investments, i.e. the contract system. Every foreign investment entry was accomplished through a contract, except where entry is made through a merger or acquisition.

Arbitration as a method of settling disputes was the greatest innovation of this system of foreign investment transactions. Arbitration under contract continues to be significant despite being overtaken in volume by arbitration of investment disputes under the treaties. It is interesting to note that MNCs, through private actors, are denied personality under international law.

There is an important pre-emptory norm of international law ‘Pacta Sunt Servanda’,i.e agreements and stipulations of the parties to a contract must be observed. The question has been debated numerous times whether this principle which applies to agreements between foreign states be extended to foreign investment agreements between a foreign state and a multinational corporation. Although many foreign scholars suggest that it should be extended but the suggestion has some theoretical defects. The principle is premised on the mutual surrender of sovereignty by member states entering into a treaty transaction which is missing in case of MNC. However, a cursory look at the long line of international jurisprudence demonstrates that State promises to foreign investors have been strongly presumptively enforceable as a matter of consistent international law and practice.

NEED TO REGUALTE FOREIGN INVESTEMNT:

The capital-importing States assert control over process of foreign investment as a potential strategy to contest norms at the international level by enacting legislation which exerts national control over the entry, establishment and operation of foreign investments. The aim of such legislation is to attract foreign investment into the State while ensuring that the investment is geared to the economic goals of the state and that the potential harmful effects on such goals are eliminated. Every state tries to do it at three levels namely Domestic, Bilateral and Multilateral. But the state sovereignty over natural resources and economic activities is subject to the principles of customary and treaty based international law.

INTERNATIONAL INVESTEMNTS TREATIES VIS-À-VIS INDIA:

At the outset, let me state that India has been a signatory to MIGA for several decades now. The Indian BIT/BIPA was initiated as part of Economic Reforms Programme started in 1991, with a view to increase the integration of Indian economy with the global economy by fostering inward and outward investment flows. The main objective of Indian (Bilateral Investment Treaty) BIT/(Bilateral Investment Promotion and Protection Agreement) BIPA is to promote and protect the interest of investors of either country in the Territory of the other country and such Agreements increase the comfort level and boost the confidence of investors by assuring a minimum standard of treatment on a non-discriminatory basis in all matters while providing for justifiability of disputes with the host country. The Government of India so far has signed BIPA’s with 75 countries till 31st March, 2009. In addition, the Government has also begun to conclude CECA (Comprehensive Economic Cooperation Agreements) that include both trade and investments.

Conflict of laws (or private international law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a “foreign” element such as a contract agreed by parties’ located in different countries such as United Kingdom and the United States. These rules determine the place or jurisdiction where a dispute may be filed and the applicability of law i.e. law of which state would govern the transaction.

THE COMMERCIAL DIVISION OF HIGH COURTS BILL, 2009:

The policies of the Government of India have changed radically from 1991, the year in which or economy was opened up to foreign investment in a big way. Privatization, liberalization and globalization have resulted in a big boost to our economy.

The Commercial Division in each of 21 High Courts shall follow Fast Track procedure for the disposal of cases. The said procedure is prescribed in the Bill itself. Power of execution of decree and orders passed by the Commercial Division are also proposed to be vested in the Commercial Division. Fast Track procedure would definitely curtail the time taken in disposal of such cases.

The commercial Division shall, within thirty days of the conclusion of argument, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise. A single judge sitting in the Commercial Division may hold one or more case management conferences.

There has been increasing trend in the commercial litigation which is taking most of the time of the existing court resulting in delays in justice to the common man whose cases are not taken up for years together. To ease the situation, other Government proposes to set up Commercial Courts within the High Courts.

INTRODUCTION OF THE REGULATION OF FACTOR (ASSIGNMENT OF RECEIVBALES) BILL, 2011:

In order to ensure prompt payments of money by buyers statutory and to regulate assignment of receivables by making provision for registration therefore and rights and obligations of parties to contract for assignment of receivable and for matters connected therewith or incidental thereto the “Regulation of Factor (Assignment of Receivables) Bill, 2011 has been introduced in the Parliament and is under process for consideration.

AMENDMENTS TO THE ARBITRATION AND CONCILIATION ACT, 1996:

The Arbitration and Conciliation Act, 1996 deals with law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards. The Ministry of Law and Justice has initiated steps to bring comprehensive amendments in the Arbitration and Conciliation act, 1996 in order to make arbitration more popular, make India as a hub of international arbitration and overcome problems due to certain judgments of Supreme Court and High Courts.

ROLE OF INTERNATIONAL PRIVATE LAW IN PROVIDNG STABILITY FOR INTERNATIONAL DEALINGS:

Private International law has a dualistic character that ensures the following functions:

(i). balancing international consensus with domestic recognition and implementation,
(ii). Balancing sovereign actions with those of the private sector.

With globalization, commercial transactions are becoming more and more international. Subject such as the appropriate degree of harmonization of domestic laws, choice of law in commercial transactions, the proper scope of international arbitration and litigation, etc will inevitably increase its importance in the immediate future.

ROLE OF INTERNATIONAL INSTITUTIONS GUARANTEE THE SECURITY OF INVESTEMTNS:

The International institutions can guarantee the security of the investments:

– by assuring legal certainty and protecting the legitimate expectations of the foreign investors.
-by ensuring protection against unlawful expropriation.
-by observance of international minimum standards of treatment and ensuring fair and equitable treatment.

LACK OF UNIFORM ACCOUNTING STANDARDS:

The globalization of business is causing companies to become more reliant on markets around the world. As such, if all multinational companies apply the same set of accounting standards while creating their financial statements, the statements will be more transparent and will save costs for both investors and companies themselves. Cost saving and transparency are two goals of the process of harmonization of international accounting standards. The harmonization process has been successful so far, but there is one major flaw there is no global enforcement mechanism, which would provide more legitimacy to the process. Without an international agency, enforcement is left to each individual nation. Not only has this led to skepticism about the uniformity of enforcement, but it has also led to actual enforcement discrepancies.

CONCLUSION AND COMMENTS:

Although in the last four decades, national and international legal polices and rules concerning trade and investments have repeatedly changed, the investment and its varieties have also undergone substantial transformation in its magnitude and content. In the national laws and policies, the trends towards liberalization and increased protection have gathered strength and the controls and restriction have been relaxed in many countries. Non-discriminatory treatment after admission of investment either way of FDI or portfolio is becoming the rule rather than an exception. However so far no international investment related dispute has been raised against India and this glaringly speaks the effectiveness of the investment agreements concluded by India. But Law being a living organ has to grow in order to satisfy the needs of the fast changing society and to keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms, which would adequately deal with the new problems, which arise, in a highly industrialized economy. The rule of law is the foundation for success of democracy. Hence capacity building for evolving challenges of emerging areas in the legal world coupled with capacity building for enforcement, will have to get highest priority.

It is an admitted fact that Global Financial Crisis had an impact on majority of the States. Studies also reveal that in addition to the above discussed the other factors responsible for the severe financial crisis are attributable to lack of:

-transparency
-uniform accounting standards
-stringent securities protection law
-stringent legal provisions controlling the dealings of real-estate-transactions
-proper collateral security system
-uniformity in the BITs

Therefore the question today is not about the global financial crisis but is about making suitable enforcing legal mechanism both at the domestic level as well as at international level and to institutionalize the same to avoid any further credit tsunami. I hope and wish this platform will pave a way for that and each and every one who is present here will contribute for the same. I hope and wish this Regional Conference will highlight the pros and cons of the issue and will stimulate innovative ideas to boost cross border trade. I am confident that this entire initiative will also enable India to emerge as a preferred destination for international investments. The Government of India is now on a trajectory of fastest and inclusive growth and justice with a focus on quality. With these words I conclude and once again thank the organizers and each one of you for giving me this opportunity.

by NNLRJ INDIA

Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report

The Parliamentary Consultative Committee meeting of Ministry of Law and Justice was held under the chairmanship of Shri M Veerappa Moily, Minister for Law and Justice on 16 May 2011 in New Delhi.  The meeting was attended by Members of Parliament (MPs) as Members of the Consultative Committee.  The officials from Ministry of Law and Justice and NIC attended the meeting.

The Chairman and Minister for Law and Justice apprised the Members of the Committee on Action Taken Report of the last meeting held on 6 December 2010:

  • A status on setting up of family courts in the States was informed.
  • Regional Consultations were held on Electoral Reforms in Bhopal, Kolkata, Mumbai, Lucknow, Chandigarh and Bangalore jointly with the Election Commission of India.  During these meetings, 13th Finance Commission Recommendations were also discussed with the Chief Justices of High Courts.
  • Implementation of 13th Finance Commission recommendations and utilization of grants was discussed in a State Level Conference on 5th May, 2011 with Law/Home Secretaries, Finance Secretaries and Registrar Generals of the High Courts.  15 States have formulated State Litigation Policy and sent a copy to Department of Justice which is under examination.

The other major issues discussed at he meeting pertained to the E-Court Project, improving justice delivery – steps to reduce pendency, implementation of reports of Law Commission of India and Rajiv Gandhi Advocate’s Training Scheme.

 E-Court Project – The scheme of computerization of district and subordinate courts in the country and for upgradation of ICT infrastructure of the higher courts was approved at a cost of Rs.441.8 crore in February 2007 revised in September 2010 at a cost of Rs. 935 crore due to increase in number of court complexes and courts, expansion of scope and additional items and increase in rates of products and services.  Phase I of the Project is planned to be implemented in 12000 courts till 31st March, 2012 and remaining 2249 courts till 31st March, 2014.  The following points were raised by the  Members during discussion:

 (i)                 States should be given a freedom to modify the software applications for the courts.

(ii)               Software for the e-court project should take care of regional languages for subordinate courts .

(iii)              At district and taluka level for providing power backups for hardware and other installations an option for solar energy may also be considered.

(iv)             Training modules for judges and their staff and familiarizing advocates may be provided for within the scheme.

(v)               Open source software should be used instead of propriety software as it requires lot of investment in future.  In this regard, a specific direction should be issued to the implementing agency.

(vi)             The procurement of software and hardware should be decentralized without compromising the quality.

(vii)           Close coordination with the State Governments be done.

(viii)         Technical manpower provided for the purpose should be of good quality.

 Improving justice delivery – steps to reducing pendency

The members felt that:

(i)   Petty cases should be disposed off through morning/evening courts/shift courts and Lok Adalats.

(ii)   Reform measures should be taken up with regard to Appointment of Judges and Judicial Standards and Accountability.

(iii)  A balance should be maintained while reducing the pendency that there should be no compromise on quality of judgments.  A study would be useful to study this correlation.  Department of Justice will take up this study.

Implementation of Law Commission Reports

 Members were assured that Pending recommendations of Law Commission will be considered in the Department of Law and action will be taken expeditiously.

 Rajiv Gandhi Advocate’s Training Scheme

 Members were informed that Rs. 50 lakh have been allocated to National Law University for imparting the training.  The first batch training will take place in the month of June-July, 2011.

 Members present at the meeting were  Members of Parliament Shri Manish Tiwari, Shri shadilal batra, Shri M B Rajesh, Shri P Rajeeve and Shri Gopal Vyas.

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by NNLRJ INDIA

The Land Acquisition (Amendment) Bill, 2007

PRS LEGISLATIVE

The Land Acquisition (Amendment) Bill, 2007 was passed by the Lok Sabha on 25th February 2009 (the last day of the session) but the bill lapsed with the dissolution of the 14th Lok Sabha.

The acquisition of land by governments for development and industrialisation has become a contentious political issue in recent years.  Many have criticized the Land Acquisition Act, 1894, as a draconian piece of legislation which has been used to forcibly acquire land without paying adequate compensation. Given the increasing chorus of protests over such issues as displacement and rights over land, the government is planning to introduce an amendment to the 1894 Act.

The Amendment attempts to expand the rights of those whose land is being acquired while restricting the types of projects for which governments can acquire land. It also provides for a separate authority to settle disputes over land acquisition. A companion piece of legislation (the Rehabilitation and Resettlement Bill, 2007) attempts to specify the benefits that displaced people will receive.

 Highlights of the Bill

  • The Land Acquisition (Amendment) Bill, 2007 amends The Land Acquisition Act, 1894.
  • For acquisition resulting in large-scale displacement, a social impact assessment study must be conducted. Tribals, forest dwellers, and those with tenancy rights are also eligible for compensation.
  • Acquisition costs will include payment for loss or damages to land, and costs related to resettlement of displaced residents.
    While determining compensation, the intended use of land and value of such land in the current market is to be considered.
  • The Bill establishes the Land Acquisition Compensation Disputes Settlement Authority at the state and central levels to adjudicate disputes resulting from land acquisition proceedings.

Key Issues and Analysis

  • The Bill bars the jurisdiction of civil courts on all matters related to land acquisition. It is unclear whether there is a mechanism by which a person may challenge the qualification of a project as ‘public purpose.’
  • The Settlement Authority is a judicial body but could be entirely staffed by members without judicial qualifications or experience.
  • When acquired land is resold, the original acquirer is to distribute 80% of the capital gains to the original owners or their heirs. This implies that every acquirer must track the original owners and their heirs in perpetuity. Also, the resale price of land may be difficult to compute when it is part of a larger deal in which a company is taken over.
  • Companies have to offer part of compensation as shares or debentures. Unlike shares, debentures do not provide the land owner with a share of the profits of the project.
  • The Bill makes special provisions for compensation if land is acquired under ‘urgency’. The term ‘urgency’ is not defined.
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by NNLRJ INDIA

Gamble in litigation

M J ANTONY IN THE BUSINESS STANDARD

The SC finds that petitioners do not always come with clean hands

Most sane people prefer to stay away from the painfully slow and overcrowded courts. It is a misfortune to be dragged to a court, especially when one is an ordinary law-abiding citizen. The ancient Chinese swore at a foe, “let you be hauled to a court even if you’re innocent!”

However, there is a deviant species who attempt to gamble with law suits. They use the system to settle political scores or subdue business rivals. The Supreme Court spotted this class two years ago in the case Dalip Singh vs State of Uttar Pradesh and remarked: “In the last 40 years, a new breed of litigants has cropped up. The quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter in falsehood, misrepresentation and suppression of facts. Those who attempt to pollute the stream of justice or touch the pure fountain of justice with tainted hands are not entitled to any relief.”

The Supreme Court decided a few cases of this variety last week and even imprisoned one petitioner who lacked bona fides. One petition was moved by vocal politician Amar Singh. It was his constant whine that his political opponents in power are tapping his phones and his private conversations with friends in high places and celebrities were aired in the media. Therefore, he moved the Supreme Court invoking his fundamental right to privacy. But the court rejected his petition, calling it “an attempt to mislead the court on the basis of frivolous allegations and by suppression of material facts.”

Chastising those who move courts with such dubious motives, the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague, not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy.

The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case, Reliance Infocom acted on a forged request from the police.

In another judgment, Kalyaneshwari vs Union of India, the court deprecated misuse of public interest litigation to wage business battles. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day.

The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.”

The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system.”

This variety of cases is not entirely new. They come with apparently laudable motives, but if the veil is removed they expose the real intentions. In the case, Subhash Kumar vs State of Bihar (1991), the complaint was that effluents released from the Tata Iron and Steel Company’s washeries were not only contaminating the Bokaro river but also ruining agricultural land. Later the court found that the petitioner was an influential businessman who was buying the slurry from the company for several years. His private interest was hurt when the company refused to provide him more slurry. Hence his public interest litigation. Such instances have occurred despite the stringent reaction of the courts at all levels and guidelines set by the apex court in some judgments.

http://www.business-standard.com/india/news/m-j-antony-gamble-in-litigation/435870/

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by NNLRJ INDIA

‘Jurisdiction of Indian courts not barred in child custody cases’

J VENKATESAN IN THE HINDU

The Supreme Court has held that jurisdiction of Indian courts is not barred while dealing with a case of custody of a child removed by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home.

Giving this ruling, a Bench of Justices V.S. Sirpurkar and T.S. Thakur said: “Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication.”

Writing the judgment, Justice Thakur said: “Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so. Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Cr.PC 1908 as amended by the Amendment Act of 1999 and 2002.”

The Bench said: “The duty of a Court exercising its Parens Patraie jurisdiction, as in cases involving custody of minor children, is all the more onerous. Welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter.”

The Bench said: “Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diaspora across the globe. While intellectual content and technical skills of these youngster find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy.”

It further said: “Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens, issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication. The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child, Kush, aged about 11 years, born in America, hence a citizen of that country by birth.”

In this case, the appellant, Ruchi Majoor, mother of the child, returned to India from the U.S. and obtained interim custody of the child from a trial court in Delhi.

On an appeal from the child’s father, Sanjev Majorr, the Delhi High Court set aside the order, holding that Indian courts had no jurisdiction to decide the issue since the father had already obtained an order from a U.S. court for the custody of the child.

The present appeal by the mother is directed against that order.

The Supreme Court disposed of the appeal while entrusting the child’s custody with the mother, but allowing visitation rights to the father.

Kumar V. Jahgirdhar, president of Children’s Rights Initiative for Shared Parenting (CRISP), a Bangalore-based NGO, reacting to the judgment, said: “In cases relating to international child abduction, the left behind parents, mostly fathers, are deprived of the child custody. The only solution for preventing this crime is India should immediately sign the Hague Convention on International Child Abduction.”

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by NNLRJ INDIA

History of deception

A.G. NOORANI in  FRONTLINE

The 1985 Lokpal Bill destroyed the raison d’etre of the institution of an ombudsman, but all successive governments copied it.

PUBLIC anger was understandably aroused over the gross delay by Parliament in the last 40 years to enact a Lokpal Bill and with the toothless one that the government sponsored. It is not widely known that the delay was aggravated by deception and fraud in 1985. It was, however, emulated by almost all governments that came later. One does not grudge any of those who rushed to Jantar Mantar to grab a few minutes’ fame before TV cameras. Tinsel town, predictably, did not go unrepresented. If the cause had stirred them earlier, their disquiet remained their best preserved secret. One cannot expect Anna Hazare to study – or, for that matter, care for – the nitty-gritty of the law. Some of those who could have known ought to have spoken earlier loud and clear.

The Lokpal Bill was one of the three planks in the movement launched by Jayaprakash Narayan 40 years ago to eradicate corruption. The other two were electoral reforms, designed particularly to end the play of money power, and an effective anti-defection law. JP did not jump into the fray all of a sudden, still less did he resort to theatricals. He studied the problems, deliberated on solutions, and consulted a wide range of persons – lawyers, academics, activists, and so on. He consulted, in particular, the Lokayukta of Maharashtra, Justice S.P. Kotval, who was a former Chief Justice of the Bombay High Court.

JP expounded his views in a seminal article entitled “How to check the canker of corruption” in Everyman’s, a weekly he founded, in the issue of September 1, 1973. It was edited by the late Ajit Bhattacharjea. He recalled the recommendation of the Santhanam Committee on Corruption that “[if] a formal allegation is made by any 10 members of Parliament or a legislature in writing addressed to the Prime Minister or Chief Minister, through the Speakers and Chairmen, the Prime Minister or Chief Minister should consider himself obliged, by convention, to refer the allegations for immediate investigations by a committee…”.

He recalled also the Tamil Nadu Public Men Inquiry Act, 1973. Its definitions of “public man” included the Chief Minister, but its definition of “criminal misconduct” was confined to bribery or illicit acquisitions by abuse of power. M.G. Ramachandran was a member of the Joint Select Committee that considered the Bill. But, of course, as we all know the law completely succeeded in banishing the evil of corruption from Tamil Nadu for all time to come. Corruption simply does not exist in Tamil Nadu today.

Jay Prakash Naryan

Jay Prakash Naryan

JP dwelt, next, on a document that had set the ball rolling. “The Administrative Reforms Committee had recommended in October 1966 the institution of the office of a Lokpal at the Centre and of Lokayukta in the States with wide statutory powers. For reasons that are not clear, the Government of India took over 18 months to make up its mind; and it was only on the 9th May 1968 that the Lokpal Bill was first introduced in Parliament. It was passed by the Lok Sabha in August 1969, but it made no further progress owing perhaps to the power struggle that was brewing within the Congress then and that burst out into the open in September 1969.…

“It was only after Indiraji’s great electoral victory in 1971 that the Lokpal Bill was re-introduced in the new Parliament on 11th August 1971. Many spectacular Acts have been passed since the victory, such as the Constitutional Amendments Acts, but the Lokpal Bill, in its own way more important than the others, has been languishing until today. This and the other delays and omissions… suggest a deplorable lack of any sense of urgency on the part of the Government of India in dealing with a cancerous disease not only of the body politic but of the nation as a whole.”

Unlike some today, JP knew that no Lokpal could wield the magic wand. He wrote: “Let me not create the impression that the appointment of a Lokpal and Lokayuktas will in itself cure the disease of corruption so rampant among Ministers and civil servants. This is not the place to go into the question, but if the Lokpal Bill and the Maharashtra Ayukta Act, which is claimed to be patterned after the former, were carefully scrutinised, it would be discovered that the action of these vital officers is severely limited and hemmed in by restrictive provisions. It is in many ways a case of giving by one hand and taking away by the other… a fertile and well-known source of corruption at the State level, which embraces MLAs, local party functionaries and even Ministers, is the matter of transfers, postings and promotions of subordinate and higher government servants of all departments. Not only is this a source of corruption, but it also occupies most of the time of the Ministers.”

Anna Hazare, in contrast, asserts that the Lokpal Bill “will put the brakes on corruption in the country and help reduce the gap between the poor and the rich” ( The Hindu, April 17). It is a man of such colossal self-assurance and naivety who leads the movement. Kotval’s first Annual Report, for the period from October 25, 1972, to October 24, 1973, lists the crippling restrictions on the Lokayukta’s powers.

The interim report of the Administrative Reforms Commission (ARC) on “Problems of Redress of Citizens’ Grievances” initiated the discussion in the country. The ARC was headed by Morarji Desai. Its emphasis was on the redress of citizens’ grievances for maladministration even if there was no breach of the law. This was based on Scandinavia’s Ombudsman, who is essentially a parliamentary institution rather like India’s Comptroller and Auditor General (CAG). Speaking to the All India Congress Committee (AICC) in Jaipur on November 3, 1963, Prime Minister Jawaharlal Nehru said that while the ombudsman system fascinated him, he felt that in a big country like India, the introduction of such a system was beset with difficulties. But then, Nehru was never enamoured of inquiries into charges of corruption, anyway.

THE FACSIMILE OF an order issued by the Government of Kerala on the "setting up of an Interim Machinery to enquire into allegations against Public Men".

THE FACSIMILE OF an order issued by the Government of Kerala on the "setting up of an Interim Machinery to enquire into allegations against Public Men".

Paragraph 25 of the ARC’s report said: “The following would be the main features of the institutions of Lokpal and Lokayukta: (a) They should be demonstrably independent and impartial. (b) Their investigations and proceedings should be conducted in private and should be informal in character. (c) Their appointment should, as far as possible, be non-political. (d) Their status should compare with the highest judicial functionaries in the country. (e) They should deal with matters in the discretionary field involving acts of injustice, corruption or favouritism. (f) Their proceedings should not be subject to judicial interference and they should have the maximum latitude and powers in obtaining information relevant to their duties. (g) They should not look forward to any benefit or pecuniary advantage from the executive government.”

Appended to the report was a Draft Bill which covered (clause 7) both, “injustice in consequence of maladministration” and favouritism and corruption.

The British Parliamentary Commission Act, 1967, covered maladministration alone [5.5(1)]. The first concrete step for the appointment of an ombudsman institution in India came with the introduction of the Lokpal Bill in the Lok Sabha on May 9, 1968, to implement the recommendations of the ARC. The Bill was referred to a joint committee and was later passed by the Lok Sabha (August 20, 1969). But while it was pending in the Rajya Sabha, the Lok Sabha was dissolved, and the Bill consequently lapsed. The Bill was again introduced in the Lok Sabha on August 11, 1971. It lapsed on the dissolution of that Lok Sabha, the fifth, in 1977.

A Bill on Lokpal was introduced in the sixth Lok Sabha on July 28, 1977. The report of the joint committee, incorporating certain amendments in the Bill, was placed before the Lok Sabha on January 20, 1978. However, before the Bill could be adopted by Parliament, the Lok Sabha was dissolved, in July 1979, and the Bill lapsed. None was considered by the seventh Lok Sabha elected in 1980.

The format of the two Bills of 1971 and 1977 was abandoned and deformities were injected into the Bill introduced in the Lok Sabha on August 26, 1985. It was withdrawn on November 15, 1988, on specious grounds after the Joint Parliamentary Committee (JPC) which debated it had been sent on a merry-go-round in 23 States at government expense “from Shimla to Trivandrum and from Panjim to Port Blair”. But it was this deformed Bill that was adopted as a model by all successive governments with little noise from any of the ones who made noises at Jantar Mantar.

To the Bills of 1971 (based on the first Bill of 1968) and of 1977 we must now turn. The 1971 Bill empowered the Lokpal to inquire into both a “grievance” and an “allegation”. These terms are of crucial importance, for they constitute the raison d’etre of the Lokpal.

A grievance was defined as a claim by a person that he had “sustained injustice or undue hardship in consequences of maladministration”. The term “allegation” was defined to cover not only “corruption or lack of integrity” but also abuse of public office to secure gain or to cause harm or hardship to another. It included, no less, action motivated by “improper” motives. In sum, the Lokpal was empowered to investigate a large variety of improper acts even if they did not constitute corruption under the Prevention of Corruption Act, 1947.

The 1977 Bill altogether omitted from its scope grievances about maladministration since a separate machinery was contemplated to entertain such complaints. However, it widened the area of the Lokpal’s jurisdiction in respect of charges of improper behaviour by defining “misconduct” in the widest terms. To the provisions of the 1971 Bill, in respect of abuse of office and conduct actuated by improper motives, it added two more ingredients which bear recalling.

They are: “if he (the public man) directly or indirectly allows his position as such public man to be taken advantage of by any of his relatives or associates and by reason thereof such relative or associate secures any undue gain or favour to himself or to another person or causes harm or undue hardship to another person (Explanation: for the purposes of this clause, associate in relation to a public man includes any person in whom such public man is interested); or if he fails to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs.” The 1971 Bill excluded the Prime Minister; the 1977 Bill included him.

The 1977 Bill was moved by the Janata Party government, in which Shanti Bhushan was the Law Minister. It was sponsored by Home Minister Charan Singh, who had, as Chief Minister of Uttar Pradesh, got promulgated on October 21, 1967, the Uttar Pradesh Public Men Inquiries Ordinance. It covered “any imputation of misconduct” against a serving or past Minister, legislator and members of local bodies and so on. Under it, the government would have no power to prevent an investigation or inquiry from being held if required by any person; it would have no hand in the selection of judges; and the investigating agency would be completely insulated from the influence of the government.

The scheme provided that any person could make a complaint of misconduct to the Governor against a present or past holder of any of the offices specified. He would be required to file an affidavit in support of the complaint and deposit a security of Rs.1,000. The Governor would then request the Chief Justice of the High Court to nominate a judge to conduct a preliminary scrutiny and eventually order a fuller one by a commission of inquiry. The judge could even order the Chief Investigator to prosecute the offender.

No Bill in recent history has been so badly mauled by the JPC as the Lokpal Bill of 1977 was. It was headed by Shyam Nandan Mishra, who was to win undying fame later as Foreign Minister. The Bill had defined “misconduct” to include, besides corruption, failure to act in any case otherwise than in accordance with the norms of integrity and conduct which ought to be followed by the class of public men to which he belongs”. The JPC considered this to be “too wide and is, therefore, likely to be amenable to different interpretations”.

This was disingenuous. Section 45 of the Army Act of 1950 makes it an offence for any officer, Junior Commissioned Officer or Warrant Officer, to behave “in a manner unbecoming his position and the character expected of him”. Section 35 of the Advocates Act, 1961, renders an advocate liable to disciplinary proceedings if he has been guilty of “professional or other misconduct”. Also, the JPC felt that since MPs “do not exercise any executive powers they should not be treated at par with other public men exercising such powers”. Therefore, the concept of “misconduct” for them should be different. The report had notes of strong dissent. The Bill lapsed on the dissolution of the Lok Sabha in July 1979. Indira Gandhi had no use for any such law when she returned to power in January 1980. Rajiv Gandhi had a go at it. The Bill that his Law Minister, A.K. Sen, a man for all seasons, moved in the Lok Sabha on August 26, 1985, departed radically from the models of 1971 and 1977 and set up, in effect, a parallel quasi-judicial body with its remit confined solely to the criminal offence of bribery under the Indian Penal Code or the Prevention of Corruption Act, 1947.

The Bill introduced in the Lok Sabha by V.P. Singh’s government on December 29, 1989, was an exact replica of the Rajiv Gandhi government’s Bill except for two changes. The Prime Minister was explicitly covered, and reference to the IPC and the Prevention of Corruption Act of 1947 was replaced by reference to the Prevention of Corruption Act, 1988.

This destroys the raison d’etre of the institution. It is designed to help people who have been badly treated even if no law is breached. It is meant also to cover abuse of power and misdemeanours or misconduct even if they do not constitute offences under the law. Since courts exist to try offences under the IPC and the Prevention of Corruption Act of 1988, why set up a parallel body?

THE LOKPAL BILL, first introduced in Parliament in 1968, was reintroduced after Indira Gandhi came to power in 1971. The Bill came up during the tenures of a succession of Prime Ministers, but most governments that came after Rajiv Gandhi's retained the clause that made the intended legislation a caricature of the institution of ombudsman. Here (from left), Indira Gandhi, Morarji Desai, Rajiv Gandhi.

THE LOKPAL BILL, first introduced in Parliament in 1968, was reintroduced after Indira Gandhi came to power in 1971. The Bill came up during the tenures of a succession of Prime Ministers, but most governments that came after Rajiv Gandhi's retained the clause that made the intended legislation a caricature of the institution of ombudsman. Here (from left), Indira Gandhi, Morarji Desai, Rajiv Gandhi.

The sinister purpose behind this appeared in clause 24 of the 1985 Bill, which read thus: “Notwithstanding anything contained in any other law for the time being in force, where on an inquiry in respect of a complaint against a public functionary the Lokpal or the competent authority has held that any allegations made in the complaint have not been proved or substantiated, no prosecution shall lie on any complaint, report, information or otherwise and no court shall take cognisance of any offence on the basis of the same or substantially the same allegations as in the complaint.” In other words, a Lokpal probe, skilfully initiated, would bar prosecution in the courts altogether.

No such provision existed either in the 1971 Bill or in the 1977 Bill. However, it was faithfully copied in the V.P. Singh government Bill as clause 23.

The 1971 Bill covered both grievances in respect of maladministration and allegations of misconduct. The 1977 Bill was confined to “misconduct” alone, albeit defined in modest terms to cover abuse of power and improprieties as well as corruption.

The 1985 Bill omitted grievances of maladministration as well as charges of misconduct and restricted the jurisdiction severely to matters which are for the courts to decide – criminal offences as defined in the IPC and the Prevention of Corruption Act.

Having thus restricted the Lokpal’s jurisdiction, the 1985 Bill sought to exclude the criminal courts’ jurisdiction as well. And not only if the Lokpal exonerated the Minister but also if, disagreeing with his findings, the Prime Minister chose to exonerate his colleague. For, clause 24 referred to the results of an inquiry by “the Lokpal or the competent authority”. And who was this “competent authority”? Clause 2(a) said it “means the Prime Minister”. The whole thing was a fraud.

Nonetheless, each of the succeeding governments, headed by V.P. Singh, H.D. Deve Gowda, Inder Kumar Gujral and Atal Bihari Vajpayee, sponsored and supported in Parliament a Lokpal Bill which it very well knew to be a caricature of the institution of the ombudsman as it is known in the world over and as was known in this country before 1985. A monstrous fraud was perpetrated on the country in 1985 and perpetuated thereafter.

Here (from left) V.P. Singh, H.D. Deve Gowda and Atal Bihari Vajpayee.

Here (from left) V.P. Singh, H.D. Deve Gowda and Atal Bihari Vajpayee.

An ombudsman does not preside over a parallel judiciary to try offences under the Prevention of Corruption Act, 1988. The courts of law take care of that. To confer such a jurisdiction on the Lokpal and oust that of the courts is to confer immunity from the law to men in high office. For, unlike the courts, the Lokpal has no power to award punishment at all. It can do no more than report to a designated superior of the delinquent – the Prime Minister vis-a-vis Union Ministers. Worse still is to confine its jurisdiction to trial of offences and exclude from it just those kinds of cases for which the institution of an ombudsman has been devised and set up for decades the world over; namely, acts which do not constitute offences in law and for which the courts can provide no redress. Maladministration and abuse of power are classic instances of such acts.

The Bills of September 10, 1996 (H.D. Deve Gowda regime), of July 23, 1998 (A.B. Vajpayee regime), and of July 9, 2001 (A.B. Vajpayee regime) all studiously copied Rajiv Gandhi’s (or A.K. Sen’s) Bill of 1985 and confined the Lokpal’s remit to corruption as defined in the Prevention of Corruption Act of 1988. In each case an anaemic Lokpal could do no more than report to the Prime Minister, while ousting the court’s jurisdiction effectively by a parallel judiciary of sorts. L.K. Advani, needless to mention, was Deputy Prime Minister in the Vajpayee government.

In glaring contrast, a mere executive order of December 20, 1969, made by the Government of Kerala to set up “an Interim Machinery to enquire into allegations against public men” proved effective. It defined “misconduct” to include any act which is actuated “by improper or corrupt motives”. Judges who sat on commissions of inquiry defined the term “azhimathi” to cover a whole range of improprieties. (The Karnataka Lokayukta Act, 1984, also included in the Lokayukta’s remit the failure “to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs” [S 2 (2) (d)].

Kerala’s Order of 1969 was superseded by the Kerala Public Men (Prevention of Corruption) Act, 1983, the Kerala Public Men’s Corruption (Investigations and Inquiries) Act 1987, and finally by the Kerala Lok Ayukta Act, 1999. It covers both lack of integrity and “injustice”. This Lokayukta has the power to order public servants, including the Chief Minister, to vacate office (Section 11) and to initiate a prosecution (Section 12).

If a Lokpal is to be worthwhile, the selected person must (1) have jurisdiction in respect of both maladministration and misconduct; (2) be appointed by a procedure that excludes executive influence and control. The Chief Justice of India and the Leader of the Opposition in the Lok Sabha must be on the selection panel along with the Prime Minister; (3) be a former judge of the Supreme Court or a former Chief Justice of a High Court; (4) have jurisdiction over a wide range of “public men” – the Prime Minister, MPs, senior civil servants, heads of public corporations and national universities, and so on; (5) have an independent investigating agency of his own and not be dependent on the Central Bureau of Investigation; (6) have the power to launch prosecutions himself and order vacating of office; (7) be easily accessible; (8) have a juridical personality. It would be best to amend the Constitution to give him constitutional status comparable to that of the CAG.

http://www.hinduonnet.com/fline/stories/20110520281003600.htm
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