Citizen Anna and agent Prashant

THE TIMES OF INDIA

In fashionably liberal circles, Prashant Bhushan is an authentic modern hero, the people’s advocate who uses the killer argument to avenge the aam admi on the bloodless battlefield of the Supreme Court. Among his lawyer peers, Bhushan is somewhat disdainfully seen as an “activist who takes up causes, not cases”. Some politicians call him a “self-righteous” busybody with a penchant for the sensational storyline. Some others loathe the 55-year-old, who helped draft the Jan Lokpal Bill, as an anarchist impelled to bring down the system. To the man on the street, Bhushan is all but invisible.

But the results of his relentless war on what he calls “evil and venality” are all around. There appears to be a decided people’s clamour for the anti-corruption Jan Lokpal Bill he wrote with former Supreme Court justice Santosh Hegde. And at the beginning of March, Bhushan effectively humbled India‘s chief political executive—the prime minister—as well as forced the highest court in the land to do his will.

With his trademark cautiousness, Bhushan admits this might be as good as it gets for a knee-jerk activist with “a passion for justice”. He acknowledges “I’ve been unwittingly catapulted into a kind of position of a hero, which I can see from the manner in which people are now wanting to interview me, as well as talk to me in the courts, congratulate me etc.”

It is safe to say Bhushan has made a career out of public interest litigation (PIL) having self-confessedly taken up “about 500 cases over 15-16 years” that deal with ‘good’ causes (environment, corruption, the Bofors case, Narmada dam). He made a career but not a fortune because he doesn’t charge for public interest cases, which he admits “take a long time, go on for a long time… more time than normal cases”. Effectively, therefore, he admits to spending just 25% of his time on paying cases, charging 5% of what other lawyers charge and earning just “enough to take care of my office expenses at any rate”.

Clearly, he is magnificently unworried about money. He lives in simple but great comfort with his former lawyer wife Deepa on one floor of his father’s house in Noida. The oldest of four children of well known lawyer and Prime Minister Morarji Desai’s law minister Shanti Bhushan, Prashant lives the dream described by American novelist Edith Wharton — the only way not to think about money is to have a great deal of it. This is the starting point of the difference in Bhushan’s worldview and that of people he lumps together as “professional lawyers”. Most of them, he says severely, “are amoral, morally vacuous and they’re not bothered whether their client gets justice nor are they bothered whether their client’s cause is just or not.”

Bhushan’s fellow lawyer in the Supreme Court, Harish Salve, acknowledges the grubby and distinct reality of being a “commercial lawyer (not an activist). Sometimes, even we’re not convinced our clients are right”. Contrast that with Bhushan’s lofty refusal to “take up a case unless I feel my client is at least morally right.” America’s leading expert on the Indian legal system and London School of Economics Centennial Professor Marc Galanter says Bhushan is quite remarkable for “being so empowered.” Unlike many great—and effective—activist lawyers, notably the late William Kunstler who fought for civil liberties, black people and native Americans, “Prashant’s circumstances have given him (financial) independence, Kunstler had the imperative of making a living. I find it admirable that Prashant has grasped the opportunity”.

And how. Just months ago, he successfully challenged the Prime Minister and Home Minister’s decision to appoint PJ Thomas as head of the country’s eight-year-old premier integrity watchdog, the Central Vigilance Commission. He was able to prove that the appointment of a man facing corruption charges to an anti-corruption institution was laughably inappropriate.

In mid-December, Bhushan managed to convince the Supreme Court it must monitor the Central Bureau of Investigation‘s (CBI) inquiry into the 2G spectrum allocation scandal, which the lawyer argued had only benefitted the “favourites amongst the favoured”. The Court even agreed with Bhushan that the CBI had dragged its feet on investigating the mega scandal. It was arguably just the fillip needed to start nailing those alleged to be guilty. From then on, it took the CBI just six weeks to arrest former telecom minister A Raja.

Bhushan wasted little time taking aim at his next quarry in the 2G scam. On March 1, he told the Supreme Court that the CBI was behaving suspiciously by failing to investigate the direct involvement of the Tata group in the entire matter. Justices G S Singhvi and A K Ganguly assured him the case was “progressing in the right direction. Prima facie there is no fault in its investigation. We are quite conscious that CBI must probe every aspect of the case.” Bhushan had made his point. But he is not triumphant. Possibly just a tad self-satisfied. He talks about his own “moral authority” and the fact that his “responsible and consistent” campaign against judicial corruption means judges “both respect and fear you (him)”. Despite being mild-mannered and retiring, some might find him as boastful as an Arab dictator: “Even judges today are afraid of throwing in jail someone who they know is perceived to be right by the people.”

Chiefly though, he is unyielding and as a friend describes him, “all heavy seriousness” about his role in India today. The science fiction addict who once wrote a turgid novel of the genre, is clear that he is an “agent of change, a catalyst”. The IIT Madras student who left halfway, went on to Princeton to study philosophy and economics but couldn’t stay the course, is steady as a rock about his destiny. He objects to the adjective “messiah”, saying “it can mean many things. I see myself as a person who tries to see the connections between what is happening and tries to spread the message that I feel should be spread about what is wrong with our economic policies, what is wrong with our judicial system.”

He studied law at Allahabad, doing part of the course before Princeton and taking his final exam on his return. He started early down the public interest road, inspired partly by his father’s views on justice, probity and corruption. Early on, he fought limestone quarrying in the picturesque Doon Valley. Then, there was the Bhopal gas tragedy litigation. He was Delhi president of the People’s Union for Civil Liberties, one of India’s oldest human rights organizations.

Bhushan is unembarrassed to be asked if activism is an indulgence for those who can afford it, chiefly people who don’t need to worry about feeding the family or putting a son through Oxford (Manav, oldest of his three sons, is studying Math there). “Activism certainly needs to be supported—by like-minded people or grants…I don’t need to seek grants because I come from a very well-to-do family”. Salve, who has faced Bhushan across the courtroom many times (“cases go up to two digits”) magnanimously says that “we need the Prashant Bhushans, we need people like him. Every system needs crackpots”. Bhushan himself describes Salve as his chief detractor but Salve insists that Bhushan is generally to be admired because “he takes every cause, good, bad or indifferent and argues it with passion.”

Salve’s words of praise may sit oddly with his deeds. In his own words Salve “drew the Supreme Court’s attention” to Bhushan’s September 2009 interview to a magazine in which he claimed “half of the last 16 Chief Justices were corrupt”. Bhushan now faces contempt of court proceedings. Salve denies animosity. “We’re all on the same side, as citizens, we’re against corruption but I think that he is sometimes out of sync with economic reality.”

This fierce romantic idealism seems to annoy Bhushan’s detractors most. Like America’s self-appointed “radical lawyer” William Kunstler, Bhushan is accused of being a “publicity seeker”. Some are suspicious of his chiming with writer Arundhati Roy to recall India Rising to right rather than jingoistic might. Some say the Jan Lokpal Bill would have been drafted with or without Bhushan. Others say the main opposition BJP would have achieved the same results on the 2G scam had Bhushan not managed courtroom success. His chief critics say he’s not really a serious lawyer at all, just a “cause-pleader”. But Salve will have none of this. “He is a good lawyer. His arguments are crisp and to the point. He doesn’t get into high philosophy and jurisprudence. He picks his cause and he bangs it hard”.

Bhushan, unemotional to the point of bloodlessness, bangs on. From his third floor office opposite the Supreme Court, he looks dreamily at the pigeons on the window sill: “There are some straws in the wind. There is reason for hope. Today you can sense a kind of arousal and excitement even among the urban middle class which one didn’t see earlier. There’s resistance everywhere against every kind of loot and degradation.”

http://timesofindia.indiatimes.com/home/sunday-toi/special-report/Citizen-Anna-and-agent-Prashant/articleshow/7931100.cms

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Handle quota disputes with a clear mechanism

YOGENDRA YADAV IN THE TIMES OF INDIA

Earlier it was the Gujjars, now it is the Jats. Before that it was the Mala-Madiga dispute in Andhra Pradesh. And one often hears about reservation for all Marathas in Maharashtra. The names keep changing, the pattern does not. Neither does our response. The script is familiar. Caste groups like Jats and Marathas, land-owning communities with some numeric strength and political clout, lay claim to backwardness. Those below them in the social order, like the Gujjars in Rajasthan, resent this intrusion and want special protection to safeguard their benefits. Or those communities among the SC or OBC who have not benefited much from reservations want a sub-quota . Agitators take to the streets, often blocking roads and railways. Governments do not want to take a decision and resort to soft-pedaling , delay tactics and collusion, hoping that that the judiciary will step in to relieve them of the burden of decision-making .

The national media responds with impatience , as if it is being dragged into an alien land and a bygone era. Caste groups in question are discussed as if these are unknown tribes from Africa. Editorials deplore political motives behind such protests and call for strict action to ensure smooth traffic. There is a clamour for judicial intervention. Once some committee is formed, everyone forgets it like a bad dream, till the next crisis erupts.

We do not stop to ask the hard questions. Why does this crisis erupt so regularly? Why do these demands always turn into a street battle? Why is every solution so transient? What is the way forward?

These questions force us to face an unpleasant truth: the policies of social justice have reached a dead-end . For a country that has such a vast and influential programme of affirmative action, we are remarkably deficient in imaging mechanisms and designs of social justice schemes. We have a maze of institutions to handle it but simply do not have a system of processing competing claims to affirmative action. This is a country famous for its statistical system but has virtually no evidence for settling these claims. We do not know, for example, if the proportion of graduates and professional degree holders among Jats are more or less than other OBC communities in Haryana and UP.

There is no need to start from scratch in the search for a way forward. As often happens in India, the solution lies in the cupboards of a ministry. The report of an expert committee headed by professor N R Madhav Menon, “Equal Opportunity Commission: What, Why and How?” has been in the public domain for two years. (Accessible at http:// minorityaffairs.gov.in/newsite/reports/ eoc_wwh/eoc_wwh.pdf). The report suggests the formation of an equal opportunity commission (EOC) as a long-term mechanism for dealing with disputes concerning social justice. The proposed EOC would be a path-finding institution that would help evolve and evaluate mechanisms for affirmative action, using an evidence-based approach . It would gather data on the socio-economic and educational status of various social groups and communities. It would also monitor the social profile of higher educational institutions and select sectors of employment. The EOC would be open to any social group that perceives a denial of equal opportunities. It would cover public and private sectors. Unlike the existing commissions , the EOC will focus on advisory, advocacy and auditing rather than individual grievance redressal. An EOC was on the Congress manifesto in 2009. It was mentioned in the president’s address to Parliament. Yet the proposal is still doing the rounds of the corridors of power, caught up in the turf-wars that ministries and commissions play in New Delhi. If we had such an institution by now, the Gujjar dispute, the Jat agitation, the Mala-Madiga dispute and several others could have been resolved. Protests may still occur but there would be a clear mechanism and some solid evidence to resolve disputes.

The forthcoming caste census could help with some of the evidence needed for a clear affirmative action policy. But it can do so, only if the findings of the main census are linked to the caste census and we get demographic , educational and economic data for each caste. The preliminary figures of Census 2011 are out and we still do not know the exact nature of the caste census that is to take place later this year. Perhaps we are waiting for another crisis . To borrow a Hindi proverb, we believe in digging a well after we notice a fire.

The writer is senior fellow at the Centre for the Study of Developing Societies, Delhi

Hindu marriages: HC ruling upsets settled law

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ANIL MALHOTRA IN THE TRIBUNE

THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.

The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties.

However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage.

The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married.

Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.

The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA.

Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court.

The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter.

Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US.

Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties.

The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam.

With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously.

This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.

Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.