It is reported that on 8 October, the Punjab Legislative Assembly amidst pandemonium passed 11 Bills without any discussion. Resultantly, the Punjab State Commission for NRIs Act, 2011 stands enacted with a stated whopping Rs.50 lac per annum salary expense of employees of the 5 member NRI Commission.
Come September and our migrated Indian brethren living overseas descend on Indian soil to reconnect with their roots. This year, there is a role reversal. With Punjab going to the hustings in 2012, Ministers in waiting and poll managers have flown in advance to UK, USA and Canada to lobby for support and seek green backs. Indigenous vote banks in rural belts in Punjab are immensely influenced by the provocative thinking of philanthropic cash rich prosperous NRIs in the matter of casting the ballot back home. This is regardless of the fact that only a 38 miniscule number of NRI voters have actually registered themselves for casting votes now allowed only by physical presence in Punjab. For wooing vote banks, the hard sell is who can devise the best mechanism for resolving the NRI problems in Punjab. This advertisement plank fuels innovative and ingenious ideas to strike emotional chords and open the threads of transatlantic NRI purse strings.
Estimated 30 million NRIs who have migrated from Indian shores reside in 180 countries abroad. About 5 million originate from Punjab and are bound with family, property and business interests back home. Their problems need solutions. Conventional laws and tardy procedures leaves them disenchanted. In this backdrop, NRIs seek alternative mediums 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 decision of the Government of Punjab for setting up of a five member State Commission for NRIs with a view to protect and safeguard the interest of NRIs in the State of Punjab and to recommend remedial measures to the State Government was the subject of a recent discussion aired by a news channel. Six participants representing different cross sections debated the subject. Though the deliberations remained inconclusive but it was an introspection which established further delving. Hence, the need for a public thought is essential before a law is put on the anvil.
Who is an NRI? This is the first question to answer while seeing who is a PIO or an OCI.
A description of these terminologies answering frequently arising questions in this array of nomenclatures may be useful to summarise as follows:
· NRI : Section 2 of the Foreign Exchange Management Act 1999 (FEMA) defines a person resident in India and a person resident outside India but does not define the term NRI. However, a notification defines NRI to mean a person resident outside India who is either a citizen of India or is 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 and a “non-resident” is merely defined as a person who is not a resident in India. Therefore, an NRI can be summed up as an Indian citizen who is ordinarily residing outside India and holds an Indian passport.
· PIO: It means a foreign citizen who at any time held an Indian passport; or he/she or either of his /her parents or grandparents or great grandparents was born in and was permanently resident in India; or he/she is a spouse of a citizen of India or of a person of Indian origin. PIO card holders can visit India without visa for 15 years and will be required to register with 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 and can apply for Indian citizenship after residing in India for a minimum of seven years.
OCI: A foreign national who was eligible to become a citizen of India on January 26, 1950, or 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. They enjoy multiple entry multipurpose lifelong visa for visiting India, are exempted registration with FRO/police authorities for any length of stay in India and are entitled to benefits notified under Section 7 B of the Citizenship Act. An OCI registered for 5 years and residing in India for one year can be granted Indian citizenship but have no political rights.
The enacted law labelled as “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 State Government.” It defines a “Complaint” by stating that it “means all petitions/communications received in State Commission for NRIs from an NRI or any other person on his behalf, in person, by post, by telegram, by fax or by any other means whatsoever, alleging, disputes or violations or abetment thereof or negligence in the prevention of such dispute or violation, by a public servant or a private person or the material on the basis of which the Punjab State Commission for NRIs takes suo motu cognizance.” The law however, does not define what is an “NRI dispute” or a “NRI violation”. Consequently, the authority, jurisdiction and powers of the Commission, are hazy, undefined and in a limbo. Though the proposed body has extensive investigative powers through the existing official machinery but its actual implementation for practical relief by passing effective orders will be questionable, doubtful and difficult. The uncertain jurisdiction treads on no foundation. Without defining the realm in which the powers will work, the exercise is in futility. Further, the mechanism for implementation of the decision of the NRI Commission which cannot usurp powers of judicial Courts may be unworkable and theoretical only.
A perusal of the enactment reveals that its focus is more on what concerns those who will be members of the Commission and what they will get as benefits. The actual emphasis on what the body in making would actually do and how it would dispense justice in relation to a defined arena of NRI disputes or violations is blissfully missing. The contents of the proposed law seriously need a deliberated work up especially since the Bill was not discussed before the Assembly enacted it.
Whether it is a NRI, PIO or an OCI, their grouses revolve around family law related issues, property disputes, immigration related questions and trysts with criminal law. But then, a hierarchical system of Civil and Criminal Courts in accordance with existing jurisprudence mandates that all disputes shall be adjudicated by Courts of competent jurisdiction as per statutory laws made by Parliament and applicable throughout India. Consequently, identifying an “NRI dispute” for being heard and decided by a different realm will clearly fall foul of the system of prevalent adjudication by existing courts. A civil, matrimonial or criminal dispute in India cannot carry separate tags and are bound to 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. The aggrieved NRI will still need to invoke the powers of a competent Court for actual relief as a NRI Commission cannot enjoy parallel statutory adjudication powers.
In the alternative function of the NRI Commission of being a recommendatory body, the existing Law Commission of India and Punjab State Law Commission, are adequately saddled with this exclusive role of suggesting changes in laws on all fronts. In any case, no major exercise is needed to identify where amendments are required as both the problems and desired solutions are well known to all. Most of them relate to Central Laws within the ambit of Parliament. Hence, any State level exercise to achieve independent changes will be an exercise in futility. Moreover, gullible NRIs would be more keen on a practical and empirical solution and not its process of change. Thus, the Punjab NRI Commission will be a wasteful exercise.
Legislative solutions lie in making exhaustive amendments in existing laws. In the family law arena, abandoned spouses, abducted children, limping marriages, inter- country adoptions, surrogate relationships and marital property disputes need statutory resolution. Current family laws need exhaustive overhaul. Hence, 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. Constituting a Punjab NRI Commission, does not serve this purpose at all.
Similarly, in the realm of property issues related to tenancy, succession, registration, investment of funds, transfer and ownership of assets, need a fresh look at a national level. Likewise, human smuggling and illegal trafficking not defined under Indian Law require urgent legislation. Even problems in criminal laws need Central Law changes. The voice of the Punjab NRI Commission does not tread on this path.
The need is dire for enacting new laws to deal with the new generation NRI problems more comprehensively. But, at the same time, legislative changes will fail if they are not backed up with specially created or empowered Courts to deal with these legal issues of NRIs. Therefore, enacting appropriate NRI laws, making corresponding procedural statutory rules and vesting authority in competent Courts to adjudicate NRI disputes is the wholesome answer on an all India basis. Piecemeal State endeavors by creating bodies in conflict will not be in tandem. The purpose though laudable will lead nowhere. Re-thinking requires its retrospection.
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