This Article is authored by Advocate Anil Malhotra.
The year 2015 will mark 100 years of Mahatma Gandhi’s return to India from South Africa and the Pravasi Bhartiya Divas celebrations to welcome overseas Indians to their homeland will be held in Ahmedabad on January 9. Prime Minister Narendra Modi, in his address to a mammoth gathering at Madison Square Garden in New York, offered lifetime Indian visas to Persons of Indian Origin (PIOs) by merging the PIO and Overseas Citizens of India schemes. As a result, the Ministry of Home Affairs issued a notification on September 30 to the effect that the PIO card shall be valid for life and the PIO card holder shall be exempt from police reporting and registration with the Foreigners Regional Registration Office. So far so good. But what will happen when an influx of Non-resident Indians (NRIs) takes place? While we euphorically laud these welcome gates, let us introspect on what laws concerning family and society we offer to our NRI brethren. In a fast-changing scenario of growth and development, it remains to be seen if these laws have kept pace with evolving societal needs. Thus, we have to first make a report card to evaluate our laws and their need.
According to statistics of the Ministry of Overseas Indian Affairs, over 21,909,875 NRIs have inhabited, settled and thrived in almost 200 countries across the globe. Their actual numbers may be roughly close to 30 million. Undoubtedly, international Indians are an entity by themselves. Thus there is a dire need for a global law to govern their conflicts. The link and retention of their ties with their extended families in India and abroad has found expression in issues relating to immigration, nationality, marriage, divorce, forced marriages, inter-parental child removal, spousal maintenance, division of matrimonial property, inter-country adoptions, succession and inheritance, tenancy of Indian property and surrogacy arrangements. Foreign courts and overseas law practitioners are at sea attempting to resolve these problems given that Indian laws pertaining to these issues have not been amended or updated. The applicability of foreign laws, the validity of judgments pronounced overseas and the verdicts of Indian courts which need expounding, are issues that require interpretation by experts. Personal laws governing global Indians — irrespective of the fact that NRIs have foreign nationalities and overseas citizenships — are all more than five decades old. They do not meet the test of time. They have outlived their utility and do not answer current day family problems in the international perspective. Clash of jurisdictions further compounds problems and result in broken homes and divided families. Indian laws on the subject of custom, marriage, divorce, spousal maintenance, domestic and inter-country adoptions, child abduction, surrogacy, child rights, matrimonial settlements, besides issues of nationality and citizenship found in existing statutory enactments, do not take a call when there are inputs from foreign laws or when there is reconcilement with an overseas court judgment. Interpretation of foreign courts on family law has further coloured the scenario as they provide new dimensions not visualised by Indian law. NRIs searching for relief measures face multiple jurisdictional clashes and are unable to reconcile their rights with corresponding obligations in Indian laws.
Private international law attempts to provide comprehensive answers to these problems. Conventional statutory laws will not address the daily dilemmas of the Indian diaspora. A panacea is thus sought to be a universal answer for aggrieved spouse, the foreign litigant, an overseas practitioner, or any lay person who simply wants to know where he stands. Case law is quoted for reliance but is no permanent answer. Unique case references are not the remedy. What is needed is a permanent answer.
The only way this can be resolved is by providing legislative solutions. This is the crying need of the hour before we put up welcome NRI signs. There are a wide range of issues that cause disputes between NRIs across borders. For instance, the law of spousal maintenance in India needs to be delved into. Child laws, issues relating to human smuggling, illegal immigration, business immigration, dual nationality and citizenship perspectives also need to be addressed.
Human rights and the criminal justice system need application in Indian laws. Predicaments concerning surrogacy need dire attention. Law and societal practices need to be in tandem. Our laws have to meet the needs and demands of international Indians. It is no longer a case of international law and Indians; it is about international Indians and the law. Besides discarding outdated legislation, legislators seriously need to make new laws for international Indians. For instance, innocent children are made victims of spousal fights across borders and are used to settle personal disputes. Likewise in commercial surrogacy, a regulatory law is required. Human smuggling and illegal immigration need central laws to save precious human lives who are exploited by unscrupulous agents. Spousal maintenance rights and marital laws need to be updated to keep up with international family law obligations. International adoption of children needs to be governed by a new regulatory law.
As of now, energy has been focussed on commercial laws, giving step motherly treatment to laws which govern family and society in India. Nothing has moved in 50 years; this must change. If we are to invite NRIs, we must first give them a stable home, a happy family life and a comfortable society to live in. Indian laws can no longer exist in isolation; they must be reconciled with laws abroad.