BY HON’BLE SHRI JAGDISH SINGH KHEHAR CHIEF JUSTICE OF INDIA
AT ALL INDIA SEMINAR OF THE INTERNATIONAL LAW ASSOCIATION ON 8 JULY, 2017 AT India Habitat Centre, Lodhi Road, New Delhi
It is a happiness for me, to address this valued gathering, for brainstorming, on two key issues of international law - “Permitting audience for foreign lawyers, in Domestic Courts” and the “Hague Rules, and Indian legal scenario – in Child Custody Matters”, at this All India Seminar.
In this ever decrease world of unimagined science and technology, human beings have been compelled to realise, that they share a general future, depending on how they resolve their present problems. International law - given the different histories and cultures of nations, can be a uniting or a dividing force. It is in this context that the two topics selected by the International Law Association can be discussed.
The primary issue:
The Indian legal profession has grown over a short period of less than 70 years… to maybe become the world’s largest, and most significant, in the matter of governance. India has close to 1.2 million lawyers, whose professional conduct is regulated by the Bar Council of India and the State Bar Councils. With the advent of globalization, the legal profession in India, has undergone a major shift during the previous two decades. Economic liberalization has given an opportunity of constant communication with foreign law firms, and an international clientele. As a result, there has been a transfer of knowledge, systems, and practices to Indian law firms, such that, they are able to assume a much larger role in cross-border transactions.
Many countries such as USA, Japan, Australia, even some EU States, have been approaching the Government of India, to seek liberalization of India’s legal services sector. These representations desire market access commitments, under the framework of the General Agreement on Trade in Services (GATS). Till now India, which is a member of the World Trade Organization (WTO) has not given any such commitment. However, foreign governments through representative bodies persist in lobbying for opening Indian legal services to foreign competition. Uniformly staff has been the opposition by the Bar Council of India.
The Advocates Act, 1961, which governs the legal profession in India, does not authorize foreign lawyers to practise law in India. It, however, acknowledges that if some country permits Indian lawyers to practise in its jurisdiction, then lawyers from that country can be granted reciprocal privileges in India.
The issue pointedly cropped up in 1995 when the Lawyers’ group, a legal rights group, moved the Bombay High Court, challenging the right of foreign law firms to practise in India… three foreign firms had received permission from the Reserve Bank of India, to set up a liaison office, for activities in India. The High Court, in Lawyers Collective v. Bar Council of India, disallowed the proposal. The same issue came up before the Madras High Court, in the A.K. Balaji vs Government of India in 2012, but the Madras High Court felt, that there was no bar to prevent foreigners access, either under the Advocates Act, 1961, or the Bar Council of India Rules. The High Court was of the view, that foreign lawyers or law firms could visit India for provisional periods, on a “fly in and fly out” basis, to advise their clients on foreign law. The High Court concluded, that foreign lawyers would not be allowable to practise Indian law, either in relation to litigation or advisory matters, unless they were qualified and were enrolled as advocates in India. The Bar Council of India, assailed this order before the Supreme Court. The Supreme Court directed the Reserve Bank of India not to permit law firms from abroad, to open liaison offices in the country. The bench ordered:
“It is clarified that Reserve Bank of India shall not grant any permission to foreign law firms to open liaison offices in India under Section 29 of the Foreign Exchange Regulation Act, 1973. It is also clarified that the appearance ‘to practice the profession of law’ under Section 29 of the Advocates Act, 1961 covers the persons practising litigious matters as well as non-litigious matters other than contemplated in para 63 (ii) of the impugned order and, therefore, to practice in non-litigious matters in India, the foreign law firms, by whatever name called or described, shall be bound to follow the supplies contained in the Advocates Act, 1961.”
However, the Supreme Court in 2015 decided to grant leave in two appeals against the Madras High Court judgment, and on the same issue arising out of a judgment of the Bombay High Court. In these matters, the Bar Council of India has raised the following contentions:
“In the absence of any rule of reciprocity or the reluctance of foreign lawyers to enroll themselves under the Advocates Act, it is not only infringement of the Act but also their practice is illegal since they would not come under the purview of the corrective power of the regulatory body in India,”…”If they are not enrolled under the Advocates Act, the professional conduct of these foreign lawyers and foreign law firms will go unchecked as there will be no disciplinary authority to exercise control over them”.
Now, it appears that the Bar Council of India and the Society of Indian Law Firms have agreed “in principle” with the government’s proposal to gradually open up the legal sector to foreign players, but insist, that this should be on a reciprocal basis.
The second issue:
The prospect of a nation is its children. Their physical, mental and moral defense cannot be compromised. Those children are worst hit, who see a conflict between their own parents. This malady is on the rise, as we witness an increase in marital discords and a rise in divorce cases. Parental clash in the family is bound to be deleterious for the concerned child. When the disputation turns into a child custody battle, the concerned child is at serious risk. When the child custody fight transcends national boundaries, the welfare of the child suffers, as it gets difficult to decide. The battle line gets entangled in sovereign laws of the individual concerned nations. Even though the only question which arises is - which parent in which country will ensure the best interest of the child. But this question is not simple. It is a cultural question involving ways of life - to which the child is accustomed. It is also an independence question - of the two concerned nations. And a legal question - depending on the concerned system of law, followed by the judicature, before which it arises.
In India, the idea that a parent can abduct his or her own child seems culturally intolerable. Additional, to bring the criminal law of kidnapping or abduction into family fights, is to accelerate a hostile situation, which would directly impact the welfare of the concerned child. A violent marriage, an abusive marriage, a marriage causing a sense of deep hurt… entail differing degrees of distrust and suspicion, these impact even the sense and receptivity of the child. Courts are put in a not easy situation, while deciding custody issues, between different levels of distrust and finding a safe haven, for a child with the singular option… to develop hatred towards one of the parents within the boundaries of the custodial parents’ place of residence.
The Hague gathering, which at present has 95 signatories, aims to protect children from the damaging effects of international abduction by a parent, by encouraging the prompt return of the abducted child, to the country of regular residence. And to organize or secure, the effective rights of access to the child. Custody and visitation matters, it is felt, should generally be decided by the proper court, in the country of the child’s regular residence.
The Gathering on the Rights of the Child of 1989, also reflects the need to come together for the protection of the child, and for every aspect related to children’s benefit. Though this Gathering has not delved into the information pertaining to child custody, as have been dealt by the Hague Gathering of 1980, it weaves an overall matrix with regard to child rights, proposing cooperation at the global level. The Gathering recognises the right of the child, to live with his or her parents, and the need for judicial determination – in the case of separation of parents. The issues’ sensitivity requires States to be obligated, to maintain personal and direct relations with both parents, and thereby, protect and honor the rights of children. The Gathering on the rights of the child, calls upon States to promote the conclusion of bilateral and multi-lateral agreements and to take measures for combating illicit transfer of children – to locations beyond a child’s habitual residence. The Gathering also requires the States to make arrangements, for the return of children to the country of the child’s habitual residence.
After India became a party to the Gathering on the Rights of the Child, concerted efforts have been made in India, to deal with different aspects of child welfare. Positive outcome can be witnessed in legislations like the Juvenile Justice Act (2015), the Protection of Children from Sexual Offences Act (2012), the Prohibition of Child Marriage Act (2006), the Commissions for Protection of Child Rights Act (2005)… and so on. But in terms of existing laws in the area of child custody, the legislative activity has been limited to the domestic sphere like the Hindu Marriage Act, 1955; the Hindu Minority and Guardianship Act,1956 and the Guardians and Wards Act, 1890.
India has not ratified the Hague Gathering for multiple reasons - including the prime one, that it is harmful to Indian women, as there are far more cases of Indian women escaping bad marriages abroad, and returning to the safety of their homes in India; than non-Indian women who are married to Indian men, leaving India with their children. In 2009, the Law Commission of India, headed by former Supreme Court Judge, had submitted a report recommending, that the government ratify the Hague Gathering. In February 2016, the Punjab and Haryana High Court while dealing with a child custody issue, asked the Law Commission of India, to resubmit its recommendations to the Government, with its proposal to sign the Hague Gathering. Based on these recommendations, the Women and Child Development Ministry in June 2016 issued a draft of the Civil Aspects of International Child Abduction Bill, 2016 (and a notice on the bill, No. CW-I-31/59/2016-CW-I of June 22, 2016) which reflected the requirements of the Hague Gathering, and would pave the way for India’s accession to it.
The Law Commission of India has also recently future some modifications in the above-mentioned Bill, and re-named as – “The Protection of Children (Intercountry Removal and Retention) Bill, 2016”. This Bill seeks to address the violation of custody, or access rights by providing for a full-fledged framework. This Bill also provides for constitution of a Central Authority, which will have a major role in discovering the whereabouts of the removed/retained child, and in securing the return of the child, and also, in provisioning for legal aid. It also proposes to empower the High Court to determine the issue of return of the child, despite the lapse of enough time. At the same time, on certain grounds – like objection by the child, or exposure of a child to grave risk etc. the return of the child can be denied.
As of now the void is being taken care of by the Indian judiciary. The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and dominant consideration is the welfare of the child, and not the rights of the parents under a statute.’ In 1998 in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the Supreme Court held, that since India was not a signatory to the Hague Gathering, it could decide the question of child custody on the merits of the case keeping in view the principle of best attention of the child. This judgment was a departure from the previous approach of the Supreme Court, wherein the small child was returned to the country of habitual residence, or from where he was removed, leaving the matter to the Court of the parent country. The Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262 held, that ‘no statute on the subject can disregard, eschew or obliterate the vital factor of the welfare of the minor’. Recently in Surya Vadanan v. State of Tamil Nadu AIR 2015 SC 2243 the Supreme Court again pronounced the principles that desired to be kept in mind while dealing with inter-country removal and return. These involved the recognition of the principle of ‘comity of courts and nations’ along with the principle of ‘best interest and welfare of the child’. Though governmental efforts have gained momentum in the recent past to fully realize the obligations laid under Article 11 of the UN Gathering on the Rights of the Child, the courts in India are consistently trying to protector the best interests of the child.
It has been claimed that if India becomes a signatory State to the Hague Gathering, it will lead to a less difficult and a more capable process… in addressing the issue of wrongful removal or retention of children.
With these opening explanation, I inaugurate the seminar. I am sure, the deliberations at the seminar will lead to positive suggestions, on these issues.