Hon’ble Dr. Justice AR Lakshmanan, Chairman, Law Commission of India, a distinguished legal luminary of the country, enlightens Witness Bureau about catena of issues.
Arbitration and Mediation is one suitable options for the fast disposal of disputes. Arbitration can be used as an effective tool for the disposal of disputes as it provides speedy justice and is cheaper as compared to judicial proceedings and it does not hamper the relationship between the parties. Fast track courts, which are still in existence have to be made more effective and the number of such courts should be increased in order to curb the settlement of petty cases. An experiment aimed at clearing the massive backlog in court cases has just begun in the country with the setting up of nearly 450 ‘fast track’ courts in various states. At least one thousand more fast track courts will become functional by the end of June this year. They await the completion of construction of court rooms, selection of judges and provision of necessary infrastructure. A total of 1,734 such courts are being set up at the instance of the Government of India under a wholly centrally-funded scheme. The remaining (around 300 such courts) are expected to come into existence in the course of the current year.
The foreign investors have been investing in India for quite a long time. It has been seen that the foreign investors are facing lot of problems in investing in India due to many governmental barriers and tax regulations. The new scheme of the government provides for the automatic route for foreign investors in India. Now, the foreign investors can invest in India without the interference or permission from the government. Indian companies with foreign investment approval through FIPB route do not require any further clearance from RBI for receiving inward remittance and for issued shares to the foreign investors. The companies are required to notify the concerned Regional Office of the RBI about the receipt of inward remittances within 30 days of such receipt and within 30 days of issue of shares to the foreign investors or NRIs. Cap FDI for different sectors are classified by the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry in 2006.
The recent case of Satyam brought a lot of hue and cry among the investors and the employees regarding the manipulation of funds. Good corporate governance can be brought by introducing a process by giving the auditors more power for the auditing and a secure employment. They should not be forced to work as per the whims and fancies of the management. He should be an independent person and his removal should be based on his discretion or the process by which the removal of the president is made. This could greatly help to make good corporate governance in India full proof. Regular investigation process should be carried on by the investigators.
India is a signatory of the UN Charter of Child Rights. In India, there is no outright ban on child labour and the practice is generally permitted in most industries except those deemed hazardous. Although a law in October 2006 banned child labour in hotels, restaurants, and as domestic servants, there continues to be high demand for children as hired help in the home. Current estimates as to the number of child labourers in the country range from the government’s conservative estimate of 12 million children under 14 years of age to the much higher estimates of children’s rights activists, which hover around 60 million. Little is being done to address the problem since the economy is booming and the nuclear family is spreading, thereby increasing demand for child labourers. Under the auspices of the Unicef financed Udisha, initiative of the Government of India is specifying the outline of a means of change and improvement in child care.
Fast track courts are meant to expeditiously clear the colossal scale of pendency in the district and subordinate courts under a time-bound programme. The fast track courts are expected to ubstantially reduce the number of undertrials in jails. There must be fast track courts for the speedy disposal of divorce and custody cases as it affects the career of the children and also negatively affects the relationship when the proceedings gets extended over a long period of time. If fast track disposal of cases are not provided for custody cases, any police officer may arrest any person in his personal grudge and unnecessarily drag him to the courts and keep the person under-trial for a long time which may psychologically hamper his career or life.
NRIs settled abroad or on work permit
Fast track courts, which are still in existence have to be made more effective and the number of such courts should be increased in order to curb the settlement of petty cases.
NRIs settled abroad or on work permit who are involved in matrimonial crisis often faces complex situation of divorce, annulment and child custody followed by consequent legal proceedings.
The foreign investors have been investing in India for quite a long time. It has been seen that the foreign investors are facing lot of problems in investing in India due to lot of governmental barriers and tax regulations. The new scheme of the government provides for the automatic route for foreign investors in India. Now, the foreign investors can invest in India without the interference or permission of the government.
Everyone blames the judiciary for its delayed activity and backlog of cases. But, for this who is responsible? The Judiciary is not the only one to be blamed for its deficiency. The Bar and Bench both are equally responsible for this.
involved in matrimonial crisis often face complex situation of divorce, annulment and child custody followed by consequent legal proceedings. They have option of filing divorce case in India. But, the biggest problem they face is direct interaction with his/her prospective Divorce Attorney to understand the complex issues of trans-border divorce cases and NRI Divorce Laws, etc. Time is essence and attending Court hearing is expensive as well as time consuming. In such situations, attending the court proceedings regularly becomes quiet difficult and expensive. Hence, fast track courts may prove useful.
India is known as a safe haven for international child abductors of Indian origin and has an abysmal record in International Child Abduction cases. Whereas, India returns foreign citizen children kidnapped by the father within 6 months, foreign citizen children kidnapped by even a foreign citizen mother are not returned to their home abroad for 10 plus years. Is that a good practice? What are the steps to be taken in this regard?
India is not a Signatory to the Hague Convention on Civil Aspects of International Child Abduction, 1980. This Convention has been signed by 80 countries and children removed from the Convention countries are returned by each other’s respective Central authorities under the Convention principles. Till India does not sign the Convention, aggrieved parents file individual petitions in Indian Courts under separate laws to seek recovery of children. This process is time consuming, frustrating and annoying. Invariably, parents left behind are not even able to secure visitation rights leave apart custody of children. The Court process is slow and often unsuccessful. Resultantly, the aggrieved child suffers. Now, it is seen that children are being removed from India by one parent and taken to foreign jurisdictions. It has also been observed that even those children who are wrongfully in India by one parent do not get to go back easily as there is no reciprocity between courts to honour and respect orders of courts of respective countries. The Law Commission has already recommended that India should sign the Hague Convention. Till then the stalemate continues.
I have actually experienced the vastness of the subject as a whole due to my long innings at the Bench and at the Bar. One thing that I have noticed is that everyone blames the judiciary for its delayed activity and backlog of cases. But, for this who is responsible? The Judiciary is not the only one to be blamed for its deficiency. The Bar and Bench both are equally responsible for this. The judges and the advocates are equally responsible as the judge can decide only from the information and documents provided by the advocates. The advocates in order to extend the case and to unnecessary pool court fees from his clients gets adjournment order and takes another date of hearing. He does this very often.
As in Medical degree, after completing the 5 year course the students are sent to small places for training for a certain period of time. In law, there is no training after passing the course and they go directly to their practice. The advocates are very inefficient and lack innovation in their respective fields of practice. Initial compulsory training should be provided to the lawyers before going to the actual courts and practice as advocates. This would boost their self-confidence and help the judiciary in passing the speedy, efficient and effective judgments.
I took charge in May, 2007 as the Chairman of the 18th Law Commission of India. So far I have submitted 31 Reports (From Report No.202 to 232). Five more Reports are being placed before the full Commission for consideration in a meeting to be held on August 19, 2009.
We have received several representations on the correctness of the judgement in L.Chandra Kumar v Union of India. The need for reconsideration of the Chandra Kumar’s judgement by a larger Bench of the Supreme Court has also been debated in various forums. Following the judgement, the aggrieved party – the government employee or the government – will have to approach the High Court. We are of the view that this has made the purpose of constituting SATs to provide speedy relief to the aggrieved redundant.
Secondly, though lakhs of cases are pending before various forums, we don’t have adequate number of judicial officer’s to dispose off them. The Magistrates are asked to hear them under various provisions of the IPC and the Cr.P.C. As courts have little time to tackle cases of commercial nature, speedy justice is possible only if separate tribunals are constituted for the purpose. Moreover, if this is not done, the 2002 amendment to the NI Act that made it a serious offence and enhanced the penalty and period of imprisonment will get defeated.
Thirdly, though road accidents in the country are on a higher trajectory, the existing enactments regulating rash and negligent driving have not helped to curb this menace. We have suo motu taken up this matter for examination in view of its importance.
And finally, consequent to a Parliamentary Committee’s suggestion for making Hindi the language for drafting of all legislation and writing judgements in the Supreme Court and High Courts, we obtained views from jurists and experts. They were of the unanimous opinion that time was not ripe for replacing English with Hindi.
Sadly the Government’s response towards our reports is not quick enough. To combat the menace of acid attacks we have suggested various measures including setting up of a panel for women for acid victims and suggesting payment of compensation to victims of acid attacks, their rehabilitation, and a law to put in place Criminal Injuries Compensation Boards at the Centre, States and district levels.
Our reports are recommendatory in nature but they are well-researched and debated. The Government should have the political will to implement them in national interest. I appeal to the Government and Parliament to implement the reports submitted by me and my predecessors so that they will serve the intended purpose.
There is need for political will to implement the recommendations so that they strengthen the system and serve the intended purpose.
The court should consider the welfare of the child first. In order to do this, when the dispute arises, the court should take the child into its custody and provide him humanitarian treatment and support him by sending to school and ensuring that his career is not at stake. The court should dispose off such matters as fast as it can. Since the proceedings can be carried out only in India and this has a huge impact on the child’s education as well.
If a child is living in one jurisdiction with one of his parent and his other parent is living in another jurisdiction, then when the other parent manages to take the child with him, his mentality may change and his career may be affected leaving him psychologically suffered. The matter of custody has to be decided by the court efficiently keeping in mind the interest of the child. The child should not be forced either to stay with father or mother as the welfare of the child should be given priority in such cases.
It has been clearly mentioned by the Supreme Court in the matter Bhavesh Jayanti Lakhani vs. State of Maharashtra and Ors that warrant issued by a foreign court could not be executed in India without a formal request from the Government concerned for extradition of the accused. Hence, it depends from case to case, keeping in mind the interest of the child’s welfare and the parties, whether the concerned government will execute the order of extradition of the foreign court or not depends upon the weightage and welfare of the case.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
