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A step towards food security
Thalassaemic travails
Insuring domestic workers |
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Lokpal and defence procurements
Satyagraha at home
DIVORCE BY MUTUAL CONSENT
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A step towards food security
THE National Advisory Council has cleared the draft of the Food Security Bill for follow-up action by the government. It offers 90 per cent of all rural households and 50 per cent of urban households a legal right to subsidised food. It is a major step towards banishing hunger but falls short of expectations of experts like development economist Jean Dreze, who quit the NAC, saying government constraints leave no scope for effectively addressing the problem of hunger and under-nutrition. Providing food security to all is a national and global challenge but the government seems less than enthusiastic. Its intention became clear when it appointed a committee under C. Rangarajan to vet the NAC proposals, released earlier. Rangarajan suggested that 46 per cent of the rural population and 28 per cent of the urban population be covered under the Act, citing insufficient food availability as a reason. Procuring larger quantities of food grains, the committee argued, would “lead to lower availability of food grains for the open market, pushing up prices”. Some have questioned the proposal to provide subsidised food to APL (above poverty line) families. Rangarajan wants an inflation-linked price of food for the poor and an MSP (minimum support price)-linked price for APL families to cut the government’s financial burden. Besides, he favours a direct transfer of the food subsidy to the poor through smart cards usable in any store. If food is to be distributed through food stamps or smart cards, then there is no problem of higher procurements or food shortages in the open market pushing up prices. Challenges are numerous but not insurmountable if there is political will. These include financial constraints, raising food productivity and ensuring fool-proof distribution. Large quantities of food go waste due to unscientific storage and poor handling and transportation. The NAC proposals may not be “more of the same” or a case of missed opportunity to radically transfer India’s social policy — as Jean Dreze believes — they mark a step forward and the government has to make sincere efforts to fight hunger and malnutrition, which limit India’s overall growth.
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Thalassaemic travails
MANY Indians are carriers of thalassaemia, an inherited blood disorder which leads to anaemia. If both parents are carriers of thalassaemia, then there is a possibility of some of their children being born as thalassaemic major. Sukhsohit Singh is one such person, and the Department of Personnel and Training has recently declared that he is unfit to join the Civil Services, in spite of his clearing all the requisite examinations. It is obvious that the rule of banning thalassaemic major patients from the Civil Services is based on the notion that they are not productive enough, given their affliction. In any thalassaemic major patient, there is an excessive destruction of red blood cells, which leads to symptoms like fatigue, growth failure, shortness of breath, etc. Obviously, the medical board at Safdarjung Hospital in Delhi took the decision without taking adequate cognisance of the advances made in the treatment of such cases. It is apparent that the candidate is a person of uncommon grit and focus, who has excelled in his studies, in spite of what could have been a debilitating disease. Thalassaemia occurs in many parts of India, especially in the western region, and the only effective way of eliminating the disease is to screen potential marriage partners. As long as two thalassaemic minors do not have children, the disease can’t spread. The Mediterranean region, especially Cyprus, where it was widely prevalent, has managed to curb the incidence of thalassaemia by making genetic screening of couples compulsory prior to the registration of their marriage. Cultural compulsions dictate enforcement of such a step legislatively, but the government must make every effort to raise public awareness about genetic disorders, and preventive steps must be taken against them. It is unusual that someone who is a thalassaemic major has done so well. For being accomplished in spite of such a disorder, Sukhsohit Singh should be cheered, not censored. |
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Insuring domestic workers
THE Union Cabinet, in its wisdom, has approved extension of the Rashtriya Swasthya Bima Yojana (RSBY) to all the registered domestic workers in the country. As per their estimate, approximately 47.50 lakh domestic workers will benefit from this smart card based cashless health insurance cover, upto Rs 30,000 a year, in any of the empanelled hospitals, anywhere in the country. The scheme is populist, as it appears, and has been announced in haste. To begin with, by the admission of its own Minister of State for Labour and Employment, Harish Rawat, no authentic data is available on the number of domestic workers in India. The white-collared middle class in India is estimated to be around 3 crores, and a middle class family without a maid is a rare phenomenon. By these estimates, their number is far greater than the estimated 4.5 million. Secondly, how many maids go through the process of registration is anybody’s guess. Even in Delhi, where a public awareness campaign was launched to register domestic servants, in the wake of a rising crime rate, results were not encouraging. Most middle- class families do not feel obliged to part with information on their servants. The problem comes with live-in maids, the households keeping them continue to be a private space without any legislative intrusion, and rightly so. Then, what is the definition of a domestic servant, what about drivers, gardeners, ironing people, waterman, and the errand boy? What about the boys working at dhaba! Unlike the schemes meant for the rural populace, where panchayats can be involved in dissemination of the information, how does the National Social Security Board (NSSB), which looks at unorganised workers for targeted welfare schemes, plan to inform the beneficiaries, without a mechanism to register and enumerate them! If the government is serious about implementing schemes such as these, for a sector that needs it the most, it should first put a system in place to collect the required data, register the domestic servants, gather a report on their requirements and then announce a scheme, which might then be of some use to them.
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Contentment is not the fulfilment of what you want, but the realisation of how much you already have. — Anonymous
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Lokpal and defence procurements
IN recent weeks, the Lokpal Bill has dominated public discourse. There seems to be a naïve belief that a strong Lokpal will root out all corruption. However, a law to establish a Lokpal is unlikely to be more effective than the existing laws to prohibit dowry or untouchability. To make a significant dent on the all-pervasive malaise of corruption, reforms will be needed at different levels of governance and in different sectors, particularly those prone to corruption. One sector needing special attention is defence. John Githongo, Kenya’s former Permanent Secretary for governance, has called defence “the last refuge of grand corruption”. Fortunately, over the past few years, the defence sector in India has remained untainted by any major scandal. But the world over defence is rated as the most corruption-prone of all international businesses. According to Transparency International’s (T.I’s) Bribery Payers’ Index, defence has the dubious distinction of ranking among the top three most corrupt sectors, along with oil, construction and engineering. A US Department of Commerce report asserts that the defence sector alone accounts for 50 per cent of all graft allegations. Experts estimate that bribes amount to nearly 15 percent of expenditure on arms acquisition. Hence, ministries of defence can never afford to be complacent. It is hardly surprising, therefore, that in his recent address to the top brass of the Army and Air Force, Defence Minister A.K. Antony had cautioned them about “the danger of falling prey to corrupt practices perpetrated by vested interests in the garb of aggressive marketing” and urged them to “stand guard with resolve against any such overtures”. Corruption in defence hurts the nation’s vitals. It makes defence more costly and diverts scarce resources from development. Corrupt practices dramatically impact operational effectiveness and in turn the credibility of the defence forces. Corruption scandals erode public trust, create insecurity and demoralise the armed forces. National security is treated as sacrosanct. Why is then defence so corruption prone? Transparency International offers some answers. First, defence contracts are large, technically complex and extremely difficult to comprehend fully. Understanding technical specifications of highly sophisticated equipment like a modern-day multi-role aircraft can be a daunting task. Technical specifications are more specific in defence than in other sectors and hence vulnerable to manipulation. Second, defence contracts involve huge sums of money with all their attendant risks. All transactions are carried out under a cloak of secrecy, on the ground of national security. However, secrecy works more in favour of companies and officials rather than public interest. Third, the task of developing technology-intensive weapon systems requires huge investment in research and development over a number of years. The arms export market is highly restrictive in nature. The supply side of the market is controlled by government and multilateral export regimes. On the demand side is generally the government or a government agency. The nature of the market is such that the equilibrium of demand and supply is hardly ever achieved. Most sellers are desperate to recover their huge investments and profiteer, whenever an opportunity arises. This desperation leads to unscrupulous practices. Fourth, the use of agents and middlemen in defence business is widespread; they flourish despite all types of bans. Agents act as the conduits for bribes. Information about agents is, therefore, treated as commercially sensitive. Fifth, because of the very nature of defence business, there are only a handful of suppliers. This situation leads to lack of competition. An analysis of the available data shows that more than 50 per cent purchases in defence are from a single source, making price discovery a complex task. Finally, offsets, which are additional investments made by suppliers over and above their sales, are a large and unregulated area, which pose a special challenge in terms of transparency. Economists see offsets as highly problematic and inefficient. The World Trade Orgranisation has banned offsets in other sectors, but the practice of offsets in defence transactions is common. In India too, offsets are now a mandatory requirement in large contracts. Assessing a fair value of offsets from the preferred supplier is never easy. Can an effective Lokpal make defence corruption-free? The answer is obviously no. But such an institution can help the process of investigation and prosecution of the corrupt. This has to be done in a manner that it does not hamper decision-making for defence procurements, which is already painfully slow. What can then be done to deal with corruption in defence? One major area needing reform is the formulation of technical specifications or ‘Qualitative Requirements’. Either on account of inadequate technical knowledge and data or due to deliberate design, these are often worked out in such a manner that only a couple of vendors or sometimes just a single vendor can meet them. This practice virtually eliminates competition and renders price — negotiations an infructuous exercise. Unless qualitative requirements are designed broadly, by specialists, with a view to consciously encouraging competition, defence transactions will remain vulnerable to corrupt practices. According to an International Monetary Fund paper on the subject, “The natural policy prescription to attack corruption in military spending/procurement should be to introduce competition and reduce patronage at the level of officials receiving bribes”. This calls for greater transparency regarding defence requirements. Sharing of information regarding future defence requirements, however sanitized, is essential for providing prospective vendors leads for the future. Defence budgets are often approved by parliaments without detailed scrutiny. Disclosure of costs and expenditures associated with defence purchases and stricter parliamentary oversight can help promote greater transparency. In the process of reforming procurement procedures, defence suppliers should be fully engaged through a consultative process. While agents and middlemen are banned in India, if in actual practice they continue to operate, it is better to disclose their identities, payments and terms of their contracts. Offsets should be subjected to rigorous standards and supervision. They should also be fully disclosed to enhance transparency and facilitate monitoring. No one should be under an illusion that the Lokpal law alone can effectively fight corruption. Equally vital will be the role of systemic reforms which prevent opportunities and incentives for
corruption.
The writer is Director-General, Institute for Defence Studies and Analyses, New Delhi.
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Satyagraha at home
While April was ushering in, atmospheric temperature was beginning to rise. Hot winds started lashing my home, roasting its cooler environs, to my utter discomfiture. There descended an uneasy calm, with seismic tremors jolting me even at the “noon” of night. I could easily radar westerly disturbances, emanating from Maharashtra and Haridwar, invading my habitat. Taking a cue from Anna Hazare and Baba Ramdev, all my family members had started adopting tough postures to either take them to Niagara Falls during the summer vacation or fall from grace. My wife, who otherwise is a well-known ambassador for consistency, had suddenly taken a U-turn, leaving me a loner, a complete alien in the family. Emboldened by unflinching support from my son, Pitamber and daughter, Archna, she declared an open war. Even our Pomeranian-pet, Micky, took no time to defect. No friend of mine would be entertained, came the fatwa. Other sanctions would follow, declared all in chorus. The stage was now getting set for a final show-down, which appeared almost inevitable. My wife passed a unilateral decree to cough up sufficient funds for the overseas sojourn, or wait to be ostracized, being insensitive to familial expectations. I was mandated to make my bank statements public suo moto; otherwise the RTI Act would be invoked. How could one person subjugate the majority in a democracy, roared Shailja. One day, my daughter asked me to bring three parcels of dinner while returning home. What about me, I asked sheepishly. My wife ruled, I was free to graze anywhere. Soon I came to know that even the maid had been laid off, to make me kneel. Echoing Chauser’s sentiments in “Prologue to the Canterbury”, I too started cursing April, dubbing it as the “cruellest month” of the year. One of my cronies advised me to keep novice Satyagrahis engaged in parleys till the tempers cooled down. As an efficient babu, I used all my expertise to trap them in red tapism, create a wedge among them and defer the inevitable, as long as I could. However, there appeared no respite in sight. One late evening, to my dismay, a candle light march was organised at home. It infuriated me; I slapped Pitamber. While he offered his other cheek like a true Gandhian, Archna accused me of domestic violence, and behaving uncivil. Next morning, I found them all packing off to my mother-in-law’s place, to launch Satyagraha-II from there. Fearing loss of face among all my relatives residing in the vicinity, I despatched emissaries to Delhi railway station, to broker peace, before the episode spilled into public domain. At last, there was a truce! Acting as Good Samaritan, my mother and mother-in-law agreed to donate and share for the trip, itinerary for which is now being drawn for July. Although the atmosphere at home is now beginning to normalise, I still continue to live in perpetual fear of another backlash, nay Satyagraha, on some other issue, some other time. Save me, oh,
God! |
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DIVORCE BY MUTUAL CONSENT “Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added)
This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011. Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court. The High Court through its “well considered order” dismissed the appeal of the husband against the decision of the trial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court. Why it is tough One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself. The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue. A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction! Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties. After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.
Withdrawal of consent For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree. The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree. The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count. In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.
Special power However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties. Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”. Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act. Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!
The writer is the Director (Academics), Chandigarh Judicial Academy.
What it is all about *
Section 13-B of the Hindu *
Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent *
A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court *
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage *
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife *
After filing the joint petition they must wait further for at least six months *
It is imperative that mutual consent should continue till the decree of divorce is granted by the court *
If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count.
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