Various Issues around legal framework for Indian Diaspora

Figures compiled by the Ministry of Overseas Indian Affairs show that there are over 2,19,09,875 NRIs spread out across over different countries. The actual numbers are expected to be much higher than this. Whatever the exact figure is, it cannot be denied that India has a strong and active NRI and PIO/OCI community.

As of recent times, NRIs and PIOs have started playing an active role in India. Also, many NRIs are returning back to India. The efforts made by successive Central Governments to reach out to the extensive Indian Diaspora has brought into sharp focus the issues faced by them

Nature of Challenges

Considerable amount of efforts has been put into place for making commercial laws favourable for NRIs. In the World Bank’s latest ‘Migration and Development Brief’, India has remained the top country to receive inward remittance with a total of $71 bn just in 2014. The report highlighted India as one of two countries having a diverse destination spread. Further, the report predicts a modest rise of 1.5% in the inward remittances to India during 2014. So, there are a plethora of investment and banking opportunities available for NRIs in India. However, the focus has only been on this area. The different aspects relating to family law have largely been ignored. Till recently, PIOs faced great difficulty in procuring visas to visit India. There are also various issues related to divorce, surrogacy, adoption, custody of children, succession, maintenance, division of property and various jurisdictional issues which are unclear or have not been legislated upon. The system is also plagued by outdated laws.

Reforms to PIO Card Scheme

The Centre recently amended the rules of the PIO Card Scheme so that new recipients of PIO cards will receive cards that will be valid for the duration of their life, provided they are holders of valid passports. This lifetime validity will be applicable retrospectively to holders of PIO cards too if they possess a valid passport.  Earlier, PIOs had cards which granted them a 15 year visa, which could then be extended for a term of 10 years at a time.

The Scheme for issuance of Person of Indian Origin Card (PIO Card) Amendment Scheme, 2014  also amended the rules that required PIOs spending more than 180 days in India to register themselves with the FRRO (Foreigners Regional Registration Office). No such registration is now required irrespective of how long the PIO’s stay is.

Voting Rights of NRIs

Indian law allows NRIs to vote in elections.  Over 12,000 NRIs are registered as voters. However, they have to be physically present in the constituency to exercise their vote. This provision was recently challenged in the SC for being discriminatory and violative of fundamental rights of NRIs. At the hearing, the following submissions were made by the Election Commission (EC):-

• Providing NRIs with the option of e-voting will not be possible due to threats such as viruses, spyware, and malware.
• However, the EC has appointed a committee to explore possibility of allowing NRIs to cast their votes abroad, and also examine other options to make the process of casting their votes much less cumbersome.
• Even though directly voting online or at diplomatic missions was not an option, voting through proxy could definitely be considered for NRIs. The NRI can designate another person from his own constituency to act as his proxy and cast the vote on his behalf. This mode of voting can be efficacious and convenient for all parties concerned. Matters of time constraint and logistics will not be a hurdle
• E-postal ballot is also an option that the EC is considering. Under this system, a blank postal ballot paper is transferred electronically to the NRIs, which can then be filled and returned by them. This system has almost no risk of manipulation, rigging or violation of secrecy. The EC has proposed trying the system on a pilot basis in one or two constituencies during elections to the Legislative Assemblies. If successful, the ballot system could then be expanded to cover Parliamentary elections and eventually to all constituencies.

As can be seen, the laws that provide basic rights such as the right to vote are also still in flux. There is an urgent need to take action on this issue and facilitate voting for NRIs.

Issues of jurisdiction and applicability of laws

The applicability of foreign laws, the validity of judgments given abroad and the verdicts of Indian courts requiring clarification, are issues that warrant the interest of the authorities. There is no clarity on law of which nation under which set of circumstances will govern NRIs . Often, there is a clash between conflicting laws of different jurisdictions. Indian laws on a variety of subjects like custom, marriage, divorce, spousal maintenance, domestic and inter-country adoptions, child abduction, surrogacy, child rights, matrimonial settlements, nationality and citizenship do not stipulate conditions where foreign law may be applicable/considered or how the Indian Courts must reconcile with a judgment of a Court in another country.

Added to this confusing mix is private international law. But again, Indian law is unclear on whether domestic law or private international law is applicable in case of conflict between the two. This creates great difficulties for NRIs engaged in sensitive and traumatic family disputes.

Lengthy judicial proceedings in India which can go on for years also act as a deterrent for persons seeking to redress their grievances.

Surrogacy

India is a popular destinations for NRIs  seeking to have a child through surrogacy, as medical costs here are much lesser than other countries. The lack of a law governing surrogacy makes it easy for persons with dubious intentions to have a child here. At the same time, the lack of a stringent system makes it difficult for persons who genuinely want a child to navigate the system. A plethora of well-publicized cases have shown how much emotional trauma, suffering and confusion this opaque system can cause. Also, the rights of the child, surrogate and the parents go unprotected. In such circumstances, any intermediary can take advantage of the situation and exploit the person concerned, especially the surrogates, who tend to be from a poorer background.

In 2005, the ICMR (Indian Council of Medical Research) framed guidelines for ART (Assisted Reproductive Technologies) Clinics. However, there is no legal mechanism to enforce them or monitor compliance by clinics. The ART Bill was drafted in 2010 but was never passed in Parliament. Now, the Assisted Reproductive Technologies (Regulation) Bill, 2013 is set to be tabled in the Parliament during its winter session. The passing of this Bill is expected to clarify various issues such as rights of the child, rights of surrogate, custody of child in the event of divorce of commissioning parents and nationality of the child.

Adoption

• The Central Adoption Resources Agency (CARA) in India has put guidelines in place which oversee some aspects of inter-country adoptions. However, no law has been passed on the subject, even though India is a popular destination for persons seeking to adopt.
• The Law Commission in its 153^rd Report on ‘Inter-country Adoption’ prepared draft of a Bill on Inter-country Adoption.
• India also ratified the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Inter- country Adoption.
• However, despite this, there is a lack of clarity on adoption procedures.
• Inter-country child adoption procedures must be simplified and a single uniform legislation must be provided for in matter of adoption of Indian children by NRIs.
• Further, the states with high NRI population should lay down some uniform policy guidelines to be observed by State agencies, adoption homes and administrative authorities so that proper help and guidance is available to NRIs in adoption matters.

Divorce and Matrimonial disputes

• Most jurisdictions allow ‘irretrievable breakdown of marriage’ as a ground for divorce. Indian law, however, doesn’t explicitly recognize this as a valid ground for divorce. Multiple conflicting judgments of Courts in India have created confusion over whether divorce can be granted on that ground. Indian Courts, in principle, do not recognise foreign matrimonial judgments dissolving marriage by such breakdown.  This uncertainty creates difficulties for returning NRIs
• Sometimes, foreign courts pass ex-parte decrees granting divorce even in cases of marriages which were solemnized in India and as per Indian law. The spouse who wasn’t present at the proceedings is at an inherent disadvantage in such cases. Even if such cases were brought to Indian Courts, the Courts here do not have free rein to interfere with the judgment of a foreign court.
• In some cases involving marital disputes, the NRI/PIO husband may resort to cancelling of sponsorship of his spouse. In such an event, the spouse has no option but to return to India. Therefore, such cancellation must not be permitted without giving the spouse an opportunity to contest the cancellation.
• There is absence of uniform civil laws in India as different religions adhere to different personal laws. Inter-religious marriages are much more difficult to deal with.
• Further, legal complications get amplified when a marriage takes place a foreign country and its legal system get involved. Such cases involve laws of two different countries and also private international law. Any conflict of laws between differing jurisdictions will have to be addressed and cleared by the Courts. Also, the extent of applicability of laws and choosing laws of which country are applicable is also a major issue lacking clarity
• Indian women marrying NRIs is a very common matter. However, incidence of abuse in such cases is also high. Addressing disputes that arise from such issues is another area of concern. Most women get married and leave to a foreign land, and many are left with no means of getting away from an abusive husband
• Most Indian missions or embassies have help desks to assist persons who are victim of abuse. There is also a scheme for legal and financial assistance to Indian women deserted by their overseas Indian spouses. However, there is no recourse for persons engaged in matrimonial disputes. Greater awareness needs to generated about the rights of a spouse and also regarding the assistance provided by Indian Embassies/Consulates/Missions abroad
• Earlier, the Ministry of Women and Child Development had proposed that women who marry NRIs should be issued a second passport, which will remain with the woman’s parents so that they can help her to return in case her first passport is snatched by an abusive husband. This second passport will also serve as proof of the marriage itself, and a copy of the passport must be deposited with the Indian mission in the country where the woman goes to live, and the parents of the women will have the option of intervening, if and when required.
• The Ministry also established an NRI Cell in 2009, which has solved over 110 cases through positive intervention.
• The 219^th Report of the Law Commission recommended the inclusion of cases of domestic discord within the scope of extradition treaties.

Conclusion

There is an urgent need to repeal outdated laws and replace them with laws that address the challenges thrown up by the 21^st century. The law needs to adapt with the changing times, if it seeks to retain its efficacy. The uncertainty and opacity surrounding family laws in India have caused untold misery to NRIs, PIOs and Indian citizens alike. Therefore, new comprehensive legislations addressing new issues and challenged must be passed and implemented in an efficient manner to redress the grievances of the sizeable Indian diaspora.