HUMAN RIGHTS LAW ABOVE CHILDREN IN NORWAY

As March 8 draws nearer, the clock ticks and the residence permits of Indian children Abhigyan and Aishwarya in foster care in Norway will lapse. Before they are renewed against the consent of the Bhattacharayas in Norway, Indian Government must act as all ongoing diplomatic parleys will be subject to the hearing before a Norwegian Court on March 23 which may still decide to keep the Indian children in Norway and a fait accompli will follow sealing the rights of the Indian parents. That must not be allowed to happen. There is a law above Norway for children and that must be invoked forthwith. We are missing the point of the legal avenue by venturing into diplomatic solutions.

Article 8 of the European Convention on Human Rights (hereafter, ECHR), which is the cornerstone of the right to family life, is as important in the European Union as right to life and personal liberty guaranteed as a fundamental right under Article 21 of the Constitution of India. Article 8 of the ECHR can be applied to the benefit of the expatriate Indian parents in Norway, “whose family life has been severely disrupted,” rather tormented on account of forced separation at the hands of Norway from their minor children. What has been unfairly done must be nullified by a superior legal process in an arena of human rights jurisprudence. Norway cannot be an end to itself.

The humanitarian and respected ECHR is an international treaty that has a charter of fundamental rights for the benefit of persons residing within the European region. Aggrieved persons whose treaty rights have also been violated in terms of Article 8 of the ECHR can seek redressal of their rights against the member states by invoking the jurisdiction of the European Court of Human Rights, in Strasbourg, France. The Strasbourg system is so termed because of the geographical location of the Court and the institutions have adjudicated upon 40,000 individual cases and approximately 20 cases of member states inter-se between themselves.

Formal intervention for redressal under the provisions of the ECHR is called for in the Norway children case for suitable and fair redressal. Norway, is very much party to the ECHR. Hence, Sagarika and Anurup Bhattacharya, the aggrieved parents are very much entitled to institute proceedings before the ECHR not only for seeking to be reunited immediately with their two minor children but also for seeking costs and damages. This will be on the basis of Article 8 of the ECHR which provides as follows:

“Article 8 – Right to respect for private and family life 

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Clearly, there has been unnecessary and unwarranted interference by the Norwegian Child Protection Services, which has shown scant disregard for the private and family life of the Bhattacharyas. Hence, the infringement and disruption of their private and family life, vests them with justifiable cause of action to invoke the jurisdiction of the ECHR. In the cases before the ECHR, presence of legal counsel is not mandatory, which in effect, would facilitate the Bhattacharyas to directly invoke the jurisdiction of the ECHR without incurring enormous prohibitive legal costs.    

Any complaint to the ECHR must qualify basic admissibility criteria, the complainant must be personally aggrieved from any such alleged violation. Prima facie, the Bhattacharyas certainly are the affected victims themselves. A duly completed form has to be returned to the Court with complete factual description, averments alleging convention rights, judicial domestic remedies exhausted and relief sought from the ECHR. Applicants must demonstrate that they have made efforts to avail a remedy for the alleged breach from the erring State, which of course has been unsuccessfully done so far by the Bhattacharyas. Adjudication through written arguments is generally the norm before the ECHR. Additionally, “Notes for the guidance of persons wishing to apply to the European Court of Human Rights” may be found at http://www.echr.coe.int/NoticesForApplicants/Noticeeng.htm.

Instead of mediating with the Norwegians and increasing the 10 month gap of the separation of the Bhattacharyas family in Norway, it is time that India took up the matter in the ECHR or assisted the family in doing so. The human rights of Indians which are sacrosanct in the Indian jurisdiction must be respected abroad equally. If India as a emerging global economic centre lends its intellectual property to European nations, reciprocity requires India to protect their honour and fundamental freedoms. What cannot be cured must not be endured. If the Norwegian judicial system decides to keep the Indian children in foster care in Norway till they attain age of majority, Article 8 of the ECHR will be violated. Norway cannot violate a law by which it is bound. The internal adjudication in Norway by their local principles and domestic standards cannot override an international law which applies to nations. Norway cannot rule its own roost.

It seems shocking that India whose writ jurisdiction is a harbinger of human rights has permitted the Bhattacharayas in Norway to be compulsorily subjected to an internal closed door conventional Norwegian justice system obsessed with their ideologies of child care. Though, the argument of personal law application to Bhattacharayas in Norway has its own force independently, their right to private and family life cannot be flouted by Norway under Article 8 of the ECHR. A public outcry, a media flare and human interest outrage floods all print and electronic news daily highlighting the injustice. The immunity of the Indian Government in being a subservient spectator does not serve the cause of 30 million non-resident Indians in 180 countries abroad.