Dr Justice AR Lakshmanan Lecture on ‘Property Related Issue of NRLs / PIOs..!’
SUGGESTED
SOLUTIONS AND REMEDIES..!
What then is the
remedy as a panacea for all such ills and legal problems?
A reading in
totality of the matters in the overseas family law jurisdiction gives an
indication that in such affairs, it is the judicial precedents which provide
the much available guidance and judicial legislation on the subject.
With the large
number of non - resident Indians now permanently living in overseas
jurisdictions,
it has now become important that some composite legislation is enacted to deal
with the problems of non- resident Indians to avoid them from importing
judgments from foreign Courts to India for implementati on of their rights.
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Dr Justice AR Lakshmanan |
The answer therefore lies in giving them law applicable to
them as Indians rather than letting them invade the Indian system with
judgments of foreign jurisdictions which do
not find applicability in the Indian system. Hence, it is the Indian
legislature which now seriously needs to review this issue and come out with a
composite legislation for non-resident Indians in family law matters.
Till this is done, foreign Court judgments in domestic matters
will keep cropping up and Courts in India will continue with their salutary
efforts in interpreting them in harmony with the Indian laws and doing
substantial justice to parties in the most fair and equitable way.
However, in this
process, the Indian judiciary has made one thing very clear i.e. the Indian
Courts would not simply mechanically enforce judgments and decrees of foreign Courts in family matters.
The Indian
Courts have now started looking into the merits of the matters and deciding
them on the considerations of Indian law in the best interest of the parties
rather than simply implementing the orders without examining them.
Fortunately, we
can hail the Indian judiciary for these laudable efforts and till such time
when the Indian Legislature comes to rescue with appropriate legislation, we
seek solace with our unimpeachable and unstinted faith in the Indian Judiciary
which is rendering a yeoman service.
In the matters of Succession, Transfer of Property, Making
/execution / implementation of Wills, repatriation of NRI funds, the respective
State Governments must simplify and streamline procedures.
Ideally
speaking, in matters having property problems, fast track Courts must be set up
to deal with such cases expeditiously in
accordance with a time bound schedule.
The Punjab
Government has made amendments in The East
Punjab Rent Restrictions Act and The Punjab Security of Land Tenures Act for
the summary
trial of disputes regarding agricultural, commercial and residential property.
However, no special Fast Track Courts exist in
most States with
high NRI population to settle these matters on priority.
A fresh proposal
should be mooted to set up such Courts as soon as possible. The administrative and police authorities in Indian States
with high NRI population should
give some
uniform guidelines to observe to assist such parents in distress and who often
land in such States in India with no clue on whom to approach for assistance.
In my view, the
above changes can be made either by providing a new composite legislation for
NRIs or suitable changes can be made in existing legislations for streamlining
the laws and procedures. It is suggested that a Core
Committee of specialists in the field of Private International
Law should be constituted at the earliest to prepare a comprehensive draft to
suggest the said changes in legislation in the best
possible way.
The Law Commission of India has already prepared an interim
report to suggest
reform and change in law on the above perspectives affecting the lives of NRIs in India
everyday.
It is the
endeavour of the Law Commission to suggest to the Government of India to do
whatever
possible to improve the life of the NRIs in India. It is important to see what India
can do for the NRI and not what the NRI can do for India.
Src: Our Building and
Construction, March 2013
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