Most laws that need change relate to the Centre, so any state-level exercise could prove futile, and only pave the way for parallel and prolonged hearings
Come September, many Indian brethren who have been living overseas will descend on Indian soil to reconnect with their roots. This year, there is a role reversal: With Punjab going to the hustings in 2012, those eyeing ministerial berths and their poll managers have flown in advance to UK, USA and Canada to lobby for support.
Indigenous vote banks in rural belts in Punjab are immensely influenced by the political slant of philanthropic and rich Non-resident Indians (NRIs). This is regardless of the fact that only a miniscule number of NRI voters have actually registered themselves for casting votes.
An estimated 30 million NRIs who have migrated from Indian shores reside in 180 countries. About five million of these NRIs are from Punjab, and have deep-rooted ties of family, property and business interests back home. Their problems need solutions. Conventional laws and tardy procedures leave them disenchanted.
NRIs seek means for efficacious dispute resolution. The moot question is: Can such mechanisms be created without conflict or collision with the prevalent Indian adjudication system?
Announcements in the media about the proposal of the Government of Punjab to set up a five-member State Commission for NRIs have been welcomed.
But who is an NRI? This is the first question to answer, while also seeking to define a Person of Indian Origin (PIO) and an Overseas Citizen of India (OCI).
The NRI
Section 2 of the Foreign Exchange Management Act 1999 (FEMA) defines a person resident in India and a person resident outside India. But it offers no definition for the Non-resident Indian (NRI).
However, a notification defines NRI as a person resident outside India, who is either a citizen of India or a person of Indian origin.
Under FEMA, a person \'resident\' in India is one who resides in India for more than 182 days in the preceding financial year and who comes or stays in India for any purpose. A \'Non-resident\' is merely defined as a person who is not a resident in India.
The PIO
A foreign citizen who at any time held an Indian passport; or whose parents, grandparents or great-grandparents were born in and are permanently resident in India; or someone who is the spouse of a citizen of India or of a person of Indian origin.
PIO card holders can visit India without visa for 15 years. They will be required to register with the Foreigners\' Registration Officer (FRO) in India when the stay exceeds 180 days, continuously.
PIOs enjoy parity with NRIs in respect of certain facilities but have no political rights.
The OCI
A foreign national eligible to become a citizen of India on January 26, 1950, or one who was a citizen of India on or at any time after the said date, or belonged to a territory that became part of India after August 15, 1947 and, his/her children and grandchildren are eligible for registration as OCIs.
OCIs enjoy multiple entry and multipurpose life-long visa for visiting India. They are exempted from registration with FRO/police authorities for any length of stay in India, and are entitled to benefits notified under Section 7B of the Citizenship Act. .
The proposed law to be labeled, \'The Punjab State Commission for NRIs Act, 2011\' is stated to be \'An Act to provide for the constitution of the Commission for NRIs in the State of Punjab with a view to protecting and safeguarding the interests of the NRIs in the State of Punjab, and to recommend remedial measures to the state government.\'
The bill makes provision for redressal of grievances of NRIs, but it leaves the very definition of NRI out of its ambit. Consequently, there is haziness about the authority and jurisdiction of the Punjab State Commission for NRIs.
The whole exercise of setting up such a commission could be futile, if the realm over which it could exercise its powers is not clear.
A perusal of the proposed enactment suggests that the concern is more about who would be members of the proposed Commission. The emphasis on the roles and responsibilities of the body that will be set up, and how it would dispense justice in relation to NRI disputes is missing.
Whether an NRI, PIO or OCI, the grouses revolve around issues related to family law, property disputes, immigration, and brushes with criminal law. The existing hierarchical system of civil and criminal courts, in accordance with existing jurisprudence, mandates that all disputes be adjudicated by courts of competent jurisdiction. .
That is why even identifying an \'NRI dispute\' that will be heard in a different realm could fall foul of the prevalent system of adjudication by existing courts.
A civil, matrimonial or criminal dispute in India cannot carry separate tags; they are bound by one system. Therefore, vesting an NRI Commission with such supposed powers may not be agreeable. Parallel hearings which cannot achieve finality will only compound problems.
In its alternative function as a recommendatory body, the NRI Commission, the Law Commission of India and Punjab State Law Commission are all saddled with the role of suggesting changes in laws.
In any case, no major exercise is needed to identify where amendments are required. Both the problems and desired solutions are well known. Most of the laws that need change relate to the Centre, and fall within the ambit of Parliament.
Thus, any state-level exercise to achieve independent change could prove futile. The NRIs most keen to have disputes resolved will be more interested in practical solutions that work on the ground; not the whole process of change itself.
The solution lies in making exhaustive amendments in existing laws, in the arena of family law. These would aid abandoned spouses, abducted children, those stuck in unhealthy marriages, and those looking to adopt children. Either all existing family law legislations made by Parliament should be amended, or a single comprehensive Indian law should be enacted for all family law-related problems of NRIs.
Similarly, in the realm of property issues related to tenancy, succession, registration, investment of funds, transfer and ownership of assets, a fresh look is needed at the laws.
Legislative change alone will not suffice. There is need for specially created or empowered courts, which deal with the legal issues of NRIs. Piecemeal state-level endeavors aimed at the creation of separate bodies may only lead to conflict with existing institutions.
Anil Malhotra, author of India, NRIs and the Law, is an advocate in the Punjab and Haryana High Court.
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ANIL MALHOTRA, (COURTESY DAILYPOST, SEPTEMBER 29, 2011),
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