Best Interests of the Child- Part 1/2

Best interests of the child…. Welfare of the child… phrases that are the touchstone of any judgment of any court pertaining to matters of child rights.  Right? Now ponder this…

Two families, neighbours- one Hindu, one Muslim- close friends.

The Muslim family had a young daughter, who had, for all practical purposes, been brought up by the Hindu family.  She dined with them, slept in their house, spent a good part of her day there, and so on. Since the families were good friends, her parents had no objection, until one day, when they called her home, she refused to come, and this behaviour continued for days to come. Further, she refused to acknowledge her biological parents at all, and stayed put with the Hindu family (who refused to hand the child over to the parents.) When the matter was taken to the police, it was further found that the Hindu parents had changed the name, religion and other details of the child in the school records, and attempted to obtain a new birth certificate for her. A habeas corpus has been filed by the Muslim family in the Karnataka High Court. They allege that the girl has been brainwashed by the Hindu family, now claiming custody of their daughter.

The child (now aged around 8 years) wants to stay with the Hindu family and does not wish to go home.  The court passed an interim order, instructing the child to stay with the Hindu family, while the biological parents were granted visitation rights every saturday for half an hour, in the presence of the police.

The case is pending decision in the High Court of Karnataka.

There are just two angles to this…… the child has to live with one of the two families, the question is which one.

On the one hand you return the child to the biological parents, when she prefers staying with the Hindu family and does not want to go live with her biological. On the other, you let  her stay with the Hindu family, who, without the knowledge of her parents, made very significant changes in her identity, changes she is far too young to realise the consequences of.

You decide.(Comments Please.)

I merely sought to present a problem to attempt to generate some ideas on child welfare, its understanding, and the sensitive nature of the problem, and how tackling it on a broad level through ‘best interests of the child’ might just have opened Pandora’s Box.

More on that later…. until then, I’d appreciate comments posting your views on the case.

Dilemmas Of The Tendulkar Report

A little earlier this year, the Rural Development Ministry set up the Saxena Committee to look into the poverty situation in the country ahead of the Tendulkar Committee Report. This committee, headed by Mr. N.C.Saxena reached the conclusion that poverty in the country stood at an astounding 50% as opposed to the 28.3% for the year 2004-05. Poverty in the country thus far was measured as per an income necessary to enable a person to consume 2400-2100 KCal (Rural-Urban). As such, the necessary income level that marked the poverty line was Rs.365 and Rs.539 for the Rural-Urban categories.

The observation of the Saxena Committee that formed the basis of their conclusions was that the current poverty line could suffice calorie intakes on only about 1800 KCal and thus was erroneous. They proposed that the poverty line be set Rs.500-1000 (Rural-Urban). This apparently hit the Planning Commission way too hard than initially expected. Damage control had to be done. So the first move was that the reports conclusions were branded arbitrary; expectedly then, the exercise of setting the poverty line was termed to be ‘beyond the powers of the committee’ and only the conclusions of the committee set up by the Central Government viz. the Tendulkar Committee’s conclusions would be accepted.

Come December and the storm refused to subside. My previous post, however small, set the contours of what line I would like to think along in considering findings of the Tendulkar Committee. My concerns are threefold:

1.  The financial implications of the revised poverty schedule in the country.

2.  Fate of various poverty alleviation programs as a consequence of the revised report.

3.  About how the government would need to address this situation by making appropriate systematic changes.

A revised minimum wage report by the government this month set the benchmark on minimum wages at Rs.100 per day. Keep this in mind while looking at the 40 Crore people below the poverty line that would like to avail of the benefits of our flagship poverty and employment programs like the NREGA and the JN Rural Development program. Each family under the former is promised 100 days of work a year; this simple calculation would alone account for government expenditure of upwards of Rs. 10 Lakh Crore.

So the question is what are we really doing by raising the bar on poverty statistics. Not only are we severely burdening the exchequer by bringing more people under the poverty fold, we get to tell the world we are a lot poorer than previously thought.  40 crore is a lot of people.

Our strength as a developing nation leis in correctly identifying the exact plight of the poor in our country.  The statistics on poverty in the country cannot be fabricated to be commensurate with our financial capabilities. We are a country with a grossly disparaging income divide; lot of poor people. Therefore whether we like it or not, the solution is in correctly identifying the short comings in our economy and addressing them appropriately. As someone rightly remarked, this is not a 100 mtr sprint but a marathon; and we need to keep our eye on the long-term goals. When the Delhi administration sought to make the city beggar free by the Commonwealth games 2010, if what they actually meant was packing off all the poor and sending them some place else, this is exactly what we should be guarding against.

Now the flip side of such a report will be that it dissolves the benchmark of assessing the success of the poverty alleviation programs being conducted by the government thus far. So if the benefits of a program meant for the previous statistics are judged on the basis of the current report, it doesn’t take a rocket scientist to figure why the centre is hesitating to accept the report. I haven’t been able to get a copy of the report; but what the Centre should ideally do is plan the transition of development from the older statistics to the new one in a phased manner and not mix the two.  Assessing the progress of a flagship program like the NREGA is a very delicate task and it would prove counter productive to readily accept the findings of the Tendulkar Report. However, this is only for the sake of carrying the program forward.

At a normative level, the Tendulkar Report is the true indicator of our country’s poverty statistics. While its consequences shouldn’t act retrospectively, I doubt it as prudent to disregard the conclusions towards understanding how to tackle the future of the country’s poor in the newer areas of Hunger and Education, bills regarding which are pending in the legislatures at the moment.

Atmosphere of Uncertainty – What India Wants from Copenhagen

As the Indian delegation walked out of United Nations Climate Change Conference at Copenhagen along with other ‘developing nations’, Tarun Gopalakrishnan tracks India’s position on global warming since the Kyoto Protocol and looks at how India can help salvage the climate change talks.

_________________________________________________________________________________

Copenhagen 2009 might well be the landmark conference in deciding the planet’s future. From an Indian perspective, it’s been interesting, to say the least. The signs were all there that the Indian delegation might look to turn the official Indian position on its head – Prime Minister Manmohan Singh highlighted the willingness of the nation to achieve a 20% reduction in its carbon emissions as envisioned by its 11^th Five-Year Plan. Minister for Environment & Forests, Jairam Ramesh, urged the Indian delegation to be “pragmatic and constructive”, and not “argumentative and polemical”. Contrast this with the Indian stand thus far – India has insisted that the historical responsibility for emissions belongs to industrialized nations, has pointed to the fact that it sustains a fifth of the world’s population and has highlighted its low per-capita emissions to justify its own emissions. Add to this the Indian assertion that its status as a developing economy means that any additional demand on it – such as shifting to green technologies – would harm its development chances; and a picture is painted of a nation which is less than conducive to consensus and more inclined to protecting its interest. Which is why the shift to the current position – that of conditionally accepting part of the burden for emissions – is seen as a sellout.

This negative dichotomy has characterized the negotiation over mitigation for some two decades. Painted as a ‘developed vs. developing’ debate, the deliberations consistently veer toward the question of which group of nations to hold responsible. The Kyoto Protocol answered this question by centering the mitigation burden on developed nations. This manifestation of the Kyoto regime was based upon the concept of ‘historicity’ – currently developed nations were the first to industrialize and therefore entered the emissions arena earlier. Their past emissions record meant that they were obliged to bear the bulk of mitigation. In short, the arrangement was based on that most judicious tenet of maternal wisdom – you made the mess, now get to mopping up. While preaching “common but differentiated” responsibility, the Protocol omitted to require anything of some of the largest emitters in the world, including India and China, in terms of emission reduction. Rather, these nations were merely vehicles for mitigation for the nations who were required to meet targets. Life, in the context of greenhouse emission mitigation therefore, was a bit of a cake-walk for developing economies – India included. No expectations were placed upon them, developed nations were responsible for ensuring that green technologies were made available to them at cheaper rates and there was an in-pouring of ‘green’ investment from developed nations looking to meet their targets. The lines of engagement seemed to be pretty clearly drawn – India, as a developing nation, refused to take on any mitigation burden in the foreseeable future.

In this context, when the Indian Government spoke of burden-sharing right before Copenhagen, the diplomats did a double-take. And, mid-way through the climate change negotiation of the decade, one can forgive oneself for being a bit befuddled as to precisely what the Indian delegation is trying to achieve. At the forefront of a technology-sharing proposal on one day and allegedly part of an en masse walkout the next, it is up for debate whether India wants in or out. Does India want to go ‘green’, or does it want status quo?

It is highly possible it is the former. Consider this – India currently imports 70% of its crude oil requirements, expenditure somewhere upward of four percent of GDP. To top that, it incurs an additional expenditure in the region of two percent of GDP to clean up the effects of fossil fuels on the ecology. Contrast that with the two-and-a-half or so percent of GDP spent on education annually, and one gets an idea of where India might be looking to cut down on expenditure a smidgen. Oil imports have, for long, been an enormous drain on the nation’s finances. In recent years, policy-makers have tried to circumvent this problem by trying to evade the middlemen and invest directly in oil-fields in countries like Sudan, Syria, Iran and Nigeria. These investments, however, have drawn annoyance in diplomatic circles, primarily from the U.S., which holds rather strong views, if somewhat hypocritical, of partnerships with these nations. Besides, while buying stakes in oilfields might be a prudent mid-term strategy, it still doesn’t answer the tougher questions posed by that most demanding of timelines – the long-term. What if India could find a way to bypass the oil industry altogether? As a developing nation, it still has the flexibility to change the energy basis on which its economy functions. Seen this way, India’s efforts to green its economy sound less like an altruistic cleanup drive and more like a calculated economic choice. Put simply, in the long run, going green saves an economy a lot of money. Less money spent on fossil fuels and cleaning up after them means more spent on other crucial sectors and better all-round economic development. The major economic prizes in the next few decades might well go to the winner of the race to end dependence on fossil fuels. It makes full sense for India to get a move on.

The context in which the Indian Premier’s remarks were made now becomes clearer. They were neither an admission of liability, nor an acceptance of emission reduction targets. When Dr. Manmohan Singh says he is in favour of burden-sharing in mitigation efforts, he probably means it in the broadest possible sense – that India is looking to green its economy on its own terms. What India is looking for at Copenhagen is a way to achieve sustainable development for the Indian economy with all the help it can get, at prices it can accept. The technology centre proposal paves the way for India to gain access to green technologies at affordable prices. On the other hand, as a developing nation, India cannot let go of its original position on developed nations’ responsibilities – hence the alleged walk-out over the concern that developed nations might use Copenhagen as a basis for departure from Kyoto. Looking for economically viable solutions to green its economy and holding parties to promises previously undertaken while making none of its own, India is manoeuvring along the finest of diplomatic lines.

The Indian stance though, if properly clarified, will probably benefit the Copenhagen deliberations. Whereas the present negotiations hinge on whether nations should undertake emissions targets or not, the Indian strategy is novel – no targets, yet a commitment to sustainable development. Perhaps it is time the battle against climate change was presented as carrots, rather than sticks. India for one, I suspect, would be more than willing to eat its greens.

The Question of Hyderabad

By 1947, just before the British left India, all but 3 princely states agreed to join the Union of India.These were Junagadh, Kashmir and Hyderabad. A small glimpse into history; Hyderabad was one of the few regions in India that was not directly controlled by the British, but was still under the suzerainty of Great Britain.The Nizams in effect ruled and reigned in Hyderabad and were in fact popular with the masses because of their development activities they undertook ,such as building lakes in this very dry region of India(Shamirpet lake in an example of this artificial lake).

However , when the curtains closed on the British in India, Hyderabad wished to be part of Pakistan.It would have been an island of Pakistan literally in the middle of India.Thankfully due to the valiant efforts of Sardar Vallabhai Patel and Menon, Hyderabad did manage to join the Republic of India in 1948.

But it seems even after 62 years of Independence, the question of Hyderabad has been raised again due to the possible bifurcation of Andhra Pradesh into Andhra and Telengena. This time Hyderabad is in the middle of Telengena but the de facto controllers of the Hyderabad economy are Andhra people.I’m not going to be commenting on whether dividing Andhra will open “the pandora’s box”, but just see how Hyderabad is going to be affected.

Here are a few solutions to the Hyderabad problem:
1.Make it a Union territory like Chandigarh which can be the common capital of Andhra and Telengana
2.Let Hyderabad be the capital of Telengana and make Vishakapatnam the capital of Andhra.
3. A rather bizarre solution , Let Hyderabad be the capital of Telengana and Secunderabad , the capital of Andhra.
4.If Andhra is not divided, then no problems.

Personally i feel the first solution might be the best considering Andhra is heavily dependent on Hyderabad in terms of administration and economy.Other questions that can be raised are: The jurisdiction of the Andhra Pradesh High court, seat allotment in the state and central legislatures, the question of which administration various universities across Andhra Pradesh will come under.

The next few weeks in Hyderabad are going to be full of fireworks and until an amenable solution can be found for Hyderabad, i’m afraid there will be a political deadlock and an all out battle for the City of Pearls. New Delhi must really step in and be the moderator between Andhra and Telengana.

The Recent Dimension To Judicial Accountability

In 2004, on being accused of a probable bias in judging a case relating to the (then) Vice President, Dick Cheney- Justice Antonin Scalia rejected such accusations by beginning a 21 page memorandum saying he did not believe his impartiality could be ‘reasonably questioned’. Justice Scalia had gone duck hunting with the Vice President a few weeks earlier. He further commented, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined,”.

4 recent cases of Judges recusal came up in India that time and again reminded me Justice Scalia’s assertion. The issues here were far less controversial. In all 4, the distinguished Judges had pecuniary interests (in the form of shares) in the companies that were parties before them. In Justice Katju’s case, his wife held shares in the company; Justice Raveendran recused himself because his daughter was a lawyer in a firm that did some non-litigation work for one of the parties.

I suppose amidst the hue and cry for Judicial Accountability, we are all making the same remark. But the issue is not all that simple. Judges recusal is not a matter of a ‘probability’ of bias; it is more about the ‘possibility’ of bias. That even an unreal and perceived bias should not end up casting shadows upon the integrity of the Higher Judiciary in the country.

On the other hand, in an Op-Ed column in The Hindu, Senior Advocate of the Supreme Court, Mr. TR Andhyarujina comments, “judges should be made of sterner stuff and should not recuse themselves merely to preserve an appearance of non-bias when there is no real possibility of bias”. He goes on to advance arguments in favour of non-recusal in such matters stating that it was not uncommon for a judge today to have not mobilised savings through investments and therefore, a waiver of conflict on behalf of the parties should be sufficient to ensure an impartial trial.

So the question is if we are infact in a position to determine where to draw the line- what are the instances that would demand that a Judge recuse himself from case. I am inclined to opine in favour of the former: that the slightest possibility of bias, or the appearance thereof must be sufficient reason for recusal; for it is a well known dictum that far more important than justice being done, is the necessity that justice appear to be done.

Think about it.

My guess is you’ll want to have a look at Prashanth Bhushan’s affidavit filed in the Supreme Court in response to contempt charges.

How Poor Were We

The Tendulkar Committee Report (Read Here) has revamped poverty statistics for the year 2004-05 by being.. more inclusive of factors that go into accounting for the poor in the country. Quite true that its not just an income necessary to consume 2100 Calories that should define the poverty line in the country- the Committee instead bases the Poverty Line on a Normative Living Standard that is reflected by the per capita consumption expenditure of commodities and services.

We were therefore, 10% poorer 4 years back.

Think about it.

(while I delve into understanding the implications it should have on future policy considerations by the government)