Thursday, November 03, 2016

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Time to Stop Day-Dreaming & Start Working towards Arbitration in India

A three day long conference on strengthening arbitration and its enforcement in India was recently organized by the Niti Aayog in the National Capital. It was more or less another arena where the ongoing tussle between the judiciary and the executive regarding the abysmal ratio of pending cases to the number of judges in the Indian courts came to the fore. Yes, alternative dispute resolution mechanisms like arbitration, mediation and conciliation are important for effective functioning of the legal machinery. But we are day-dreaming of making this work in a country which needs basic systemic reforms throughout the ecosystem.

Being a part of a litigant averse culture, preference for alternative dispute resolution is what we have always preached. It is high time we do enough to practice that ourselves.

Preventing disputes

First things first. We have to prevent commercial disputes from arising so rampantly across the economy. Since the government is one of the major litigants, there’s a need to overhaul the attitude of the bureaucracy that supervises day to day business transactions. In order to assist the bureaucrats who are mostly generalists, consultants with specialization in that particular domain are brought on board to assist them. However, good faith and co-ordination between them that could pre-empt disputes mostly with contractors is missing. Multiple power centers within the hierarchy and lack of accountability in enforcement of contracts make things worse.

 And then there is the Damocles sword of charges under the Prevention of Corruption Act constantly hanging over a bureaucrat’s head that makes him want to minimize risk and postpone taking decisions. Instead of trying to mediate at an early stage, he would probably refer everything to arbitration or litigation  so that the responsibility of an adverse award doesn’t befall him. The lack of flexibility to renegotiate terms of contract based on market conditions is also contributing to disputes especially in PPP projects in the infrastructure sector. 

Understanding the preference of arbitration over litigation

Once a dispute arises, parties in India need to understand why it is preferable to approach for arbitration instead of conventional litigation. 

Arbitration allows parties, which may hail from differential cultural, linguistic and legal backgrounds, to adopt a procedural framework mutually acceptable to both – this places a moral responsibility on them to abide by the final awards rather than subject it to appeal and hence dispose of cases quickly. The quicker resolution also helps regular transacting parties to get on with their business dealings – the high upfront arbitration fees may seem puny in comparison to the economic cost of stalled business due to litigation.

Unlike courts which lack the flexibility to change procedure in litigation, arbitration allows parties to adopt the original or amended form of ready made rules as set by bodies like ICC (International Chamber of Commerce) or UNCTRAL (United Nations Commission on International Trade Law). 

Unlike normal judges who evaluate disputes on the basis of the civil code or principles of natural justice that they have been using historically to give judgements, arbitrators who generally are selected on the basis of their domain knowledge are better suited to evaluate the technical details and decide fairly on the merits of the case.

Unlike court orders on commercial disputes which are in the nature of civil judgements and cannot be enforced in cross border jurisdictions, arbitration awards, in alignment with the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958, are more easily enforceable

Arbitration strives to keep intact the reputation of the disputing parties by ensuring privacy and confidentiality. No publicity can be used to strengthen a case or force a settlement. 

India is also one of the countries that recognizes only 1/3rd of all the 150 signatories of the New York Convention as member states thus giving no guarantee to foreign investors that foreign awards shall be duly enforced here. 

Clarity in laws

Having understood the merits, arbitration clauses have to be very carefully drafted in every contractual agreement specifying details like the composition of the tribunal (number and qualification of arbitrators), procedure of their appointment and language of proceedings. For any contract that has an arbitration clause, there are two sets of laws which serve different purposes and hence should be clearly spelled out.

substantive law (which safeguards rights and obligations arising out of the contract; mostly the local law of the country of party most affected by contract is chosen) 
the law governing arbitration (which, on the basis of seat of arbitration like London/Singapore, decides the validity, efficacy and interpretation of arbitration provisions in the contract and consequently the scope of the arbitrator) 

The expansive definition of “public policy” in India that can be used to turn down awards that are in contravention to fundamental policy of Indian law or notions of morality and justice is giving jitters not only to foreign investors who are planning to set up special purpose vehicles for local investment but also for any business choosing India as the seat of arbitration.

Today, as per Part I of the Arbitration and Conciliation Act 2015, Indian courts are vested with powers to set aside the awards given under domestic arbitrations (basis place of incorporation instead of management control) or international commercial arbitrations with India as chosen seat. This is not the case with foreign seated arbitrations covered under Part II who seek Indian courts’ assistance primarily for enforcement. With recent amendments, such parties have also been allowed to take the court’s help in seeking interim relief or gathering evidence. But it is still not clear on what happens in a dispute between two domestic companies who have chosen a foreign seat of arbitration. 

The debate on what is more important – “party autonomy” (a cardinal principle of arbitration which allows parties to opt for any law or jurisdiction) OR “public policy” is still to be resolved in such cases. Recently Uruguay put aside a foreign award (in favor of a Swiss tobacco company Phillip Morris) to uphold public health. The expansive definition of “public policy” in India that can be used to turn down awards that are in contravention to fundamental policy of Indian law or notions of morality and justice is giving jitters not only to foreign investors who are planning to set up special purpose vehicles for local investment but also for any business choosing India as the seat of arbitration.

 In the model Bilateral Investment Treaty, India has dropped the Most Favored Nation clause to prevent its misuse for treaty shopping. It has also made exhaustion of local remedies a must before initiating arbitration, which might not be acceptable to US and EU especially when the Trans Pacific Partnership agreement is so pro-arbitration. India is also one of the countries that recognizes only 1/3rd of all the 150 signatories of the New York Convention as member states thus giving no guarantee to foreign investors that foreign awards shall be duly enforced here. As long as there is no coherence in this area, we will continue to rank poorly in the ease of doing business. 

To usher in quality arbitrators, the subject matter of arbitration needs to be an important part of the legal curriculum providing choice of sectors in which it is to be practiced. For this, alignment with the industry is a must. Arbitration has to be envisaged as a separate career choice and not a safe retirement option.

Legal infrastructure

The legal infrastructure in the country isn’t conducive enough for portraying itself as a destination for arbitration. Though the intention behind the passage of the Commercial Courts Act 2015 is noble, the execution doesn’t look promising when 40% of the vacancies in High Courts are yet to be filled. To usher in quality arbitrators, the subject matter of arbitration needs to be an important part of the legal curriculum providing choice of sectors in which it is to be practiced. For this, alignment with the industry is a must. Arbitration has to be envisaged as a separate career choice and not a safe retirement option. Participation in international arbitration conferences, having bilateral relationships with international institutions and liberalization of the legal service sector is crucial for such exposure. The recent amendment has done some good in specifying that appointment of arbitrators isn’t a judicial function and hence can be delegated by the courts to other specialized bodies. 

Historically our answer to problems has been either more institutions or more regulations. We may manage to build a state of the art institutional arbitration center in Mumbai (emulating Singapore or London) or put a time limit for the disposal of such cases but these will only end up being just photo-ops unless systemic reforms take place simultaneously. Research proves that 60% of arbitration cases decided on merit are won by investors instead of the State. With all hands on Make in India, it is imperative that the nation builds a strong arbitration ecosystem to prevent loss to the exchequer. Being a part of a litigant averse culture, preference for alternative dispute resolution is what we have always preached. It is high time we do enough to practice that ourselves.

This article was published in the Huffington Post and Live Law 

Continue reading Time to Stop Day-Dreaming & Start Working towards Arbitration in India

Monday, October 31, 2016


Why I stopped romanticizing "unrequited love" ?

I started this weekend with a morning doze of “unrequited love” portrayed in a recently released Hindi flick . Keeping aside my not-so-favorable opinion on the quality of moviemaking, it made me reflect on how my connect with such one-sided love sagas has evolved over three decades of my life.  There was a time when Alfred Tennyson’s words “Tis better to have loved and lost than never to have loved at all” seemed to define my aspiration for “true love” – irrational, consuming and without any expectations. But then life happened. Having been on both sides of such a relationship as the lover and the beloved and understanding its profound impact that probably shaped my life forever, I no longer romanticize the idea of “unrequited love”. 

I am parking my humility for the sake of discussion and acknowledging the fact that I have been desirable. Even statistically, women are more prone to being the beloved who rejects advances of such love than men. Though documented far less, the experience of a person who gets to reject another’s love is far from pleasant. Reminiscing about my past, I have realized that often unwillingly I led on certain people to believe that I was interested in them. I noticed the guy who would sit in the last bench and not socialize with anyone and made a conscious attempt to involve him in class activities. I would get far too involved in a good pal’s life and create an emotional interdependence that could be mistaken as love. Since I was always vocal about my feelings, I had a hard time understanding the unsaid. And when such love was confessed, that initial kick of being adored by someone eventually gave way to a painful guilt.  

Very rarely was my polite refusal backed with an apology understood by people who were my friends to begin with.  Despite the affection that I had for the other person, I found myself withdrawing lest he believed that I was giving it time and would eventually consent to the relationship. One time this withdrawal exacerbated that yearning for that  friendship so much that I ended up proposing the same person later.  The sad part was that even within the love relationship that followed, the love remained unrequited with neither of us being able to reciprocate what the other wanted. Another time with another person I was infatuated but fell out of it soon – the tirade of his attempts to rekindle it that followed made me fear for my life. Though utterly foolish but that feeling of guilt for driving a good friend to that level had held me back from raising an alarm and asking for help. And I counted the days to escape that hostile environment.

Over the years, I have understood that misunderstanding anyone’s friendly behavior for love is no excuse for pressurizing that person to commit. But such experiences so early on in life deeply embedded a fear of the consequences of “being me”. People say that now I am all sorted in the way I pick my friends and in control of the signals I send. The truth is that I miss locking away that spark that made me unabashedly call an acquaintance past midnight to check on his dog’s health. 

Donning the hat of that unrequited lover was also enlightening. I didn’t care about how much was reciprocated and kept on investing my heart and soul into an asymmetrical relationship. Of course, there was the joy of being in love and the anticipation of seeing him everyday. But not a day passed when I didn’t think of what better I could do. If “true love” actually means “loving without expectations”, I had gone a step beyond of being oblivious of what to expect. Romanticizing such lack of reciprocation had cost me my self-esteem and confidence. I had stopped retorting to gibes from my bosses. I had stopped being the life of the work parties. May be Friedrich Nietzsche was right in believing that the suffering of unrequited love was indispensable for human growth. May be such suffering has given to the world masterpieces of art and literature. But when this occurred to an ordinary mortal like me, I don’t remember being able to pen a single thought on paper. 

The wisest thing that I did in my life was to understand the futility of it all. Some artists are against the  quest  for happiness as for them it stops all attempts at self introspection and critical thinking. I beg to differ. It is only that quest for happiness that made me fall in love once again. A love that conquered my cynicism and fear of rejection. A love that made me believe that I was the most beautiful person deserving of everything I wished for in this world. A love that broke my wall and let my thoughts flow in prose. A love that was, in all terms, requited equally.

Some say that unrequited love never dies. It only hides in a secret place wounded. It isn’t entirely untrue. But that’s the beauty of wounds – they make you remember the times you fell but still got up and more importantly, the people who had your back then. The wound will eventually cease to exist. Only if you don’t wish to live with it forever. 

This article was originally published in the Huffington Post & India Today's DailyO
Continue reading Why I stopped romanticizing "unrequited love" ?

Thursday, October 27, 2016


The Imdad Ali case: Why executing a mental patient is severely problematic?

On October 21, 2016, the Supreme Court of Pakistan turned down the plea to delay the hanging of Imdad Ali, a 50 year-old schizophrenic man convicted in 2002 for murdering a cleric.Taking cues from the dictionary meaning of schizophrenia, as well as the Indian Supreme Court's judgment in the case of Amrit Bhushan Gupta vs Union of India 1976, the Pakistani SC concluded that this disease was not a permanent mental disorder and hence didn't offer sufficient grounds to plead insanity. As the debate goes on about the fairness of this judgment, it is worthwhile exploring the slippery slope of insanity defence in criminal jurisprudence.

In criminal law, to establish culpability for a crime, it is vital to prove that the person accused actually committed the act and that he acted out of his/her own free will, intentionally and with whatever reasons he/she may have had.

A person suffering from a mental disorder may not be in a position to rationalise their actions at the time of committing the crime. At the stage of trial, they may not be in a position to defend themselves. Understanding these ethical nuances, criminal laws in most countries allow for an insanity plea, which once proven, can absolve the accused of the crime.

But not every accused who is mentally insane is automatically absolved of all responsibility for the crime committed. There is a difference between legal insanity and medical insanity. Medical insanity could include any kind of mental illness — ranging from permanent disorders like lunacy to temporary psychosis like bipolar syndrome. Legal insanity demands not only mental illness but also loss of reasoning power at the time when the offence was committed. As per the M’Naghten rule, if a mentally ill person had knowledge that what they were doing was wrong or against the law, they should be punished for the crime.

In the case of Amrit Bhushan Gupta vs Union of India, the same test was applied to evaluate the insanity plea under Section 84 of the Indian Penal Code. Even though medical experts certified that the defendant had been suffering from schizophrenia, the evidence submitted in the lower courts proved that he knew the nature of his acts and hence was liable for punishment.

In various other judgements of the Indian Supreme Court, it has been established that in addition to mental illness, aspects like motive for the crime, previous history in relation to the mental condition of the accused, the state of their mind at the time of the offence, and the events immediately after the incident that throw a light on their mental condition (for example, attempting to hide evidence or absconding to avoid arrest) are also to be factored in.

While international laws regarding insanity also follow similar principles, obtaining a fair judgement in this part of the world (both India and Pakistan) may be difficult for a number of reasons:

The need to visit mental health counselors or psychologists is hardly understood. The taboo associated with any mental irregularity leads to such behaviours going under-reported. With no attention paid to abnormal behaviour patterns and lack of availability of medical records substantiating this, it becomes nearly impossible to prove insanity where it may have been the case.

As soon as a crime is committed, ideally a forensic psychiatrist should get involved in the case along with the investigating officer. Studying past medical reports to check on past behaviours or substance abuse, autopsy of the victim’s body, interviews with the accused and family members are crucial in making a proper assessment. Unfortunately, we neither have trained forensic psychiatrists, investigating officers or lower court judges who insist that such reports be produced during the legal process.

Conditions inside prisons are also often responsible for worsening the mental conditions of under-trial prisoners. A study conducted in India in 2011 found that as many as 30% of the prisoners suffered from a mental disorder and 70% from either a mental disorder or substance abuse. The lack of legal education and the high proportion of under-privileged among under-trials further hamper the chances of getting an insanity plea.

As per the Imdad Ali judgment, the Pakistani SC took cognisance of the fact that the defendant was diagnosed with genetic paranoid schizophrenia by government medical professionals in 2012 (a decade after he had committed the murder). However, the burden of proof for establishing insanity at the time of the crime lay with the accused. And since Imdad’s medical history wasn’t recorded before, it couldn’t be proven whether he was suffering from a schizophrenic attack at the time of murder. Eventually, his insanity plea was rejected. In the absence of evidence, a case can be made that the SC wasn’t exactly incorrect in upholding the judgments of the lower courts.

The court was also not wrong in pointing out that medical advances and rehabilitation have made the treatment of schizophrenia possible. But while there is a possibility of a person living an absolutely normal life with a treatable form of schizophrenia, there is also a chance that a person cannot be treated at all. The court was however not exactly fair in dismissing this condition as a mere reaction to stress. Medical research has established that having a first degree relative with schizophrenia, the bio-chemical environment of the womb during pregnancy, social isolation especially during formative years, and substance abuse are just some of the many risk factors that contribute to developing the condition. Hence, each case of schizophrenia has to be judged on its own merit rather than through generalisations.

But it is the plea for delaying his execution pending his medical treatment that warrants the most attention. Pakistan is a signatory to the International Covenant on Civil and Political Rights, which urges states practicing death penalty to not impose it “on a person suffering from any mental or intellectual disabilities or to execute any such person”. In 2013, in Shatrughan Chauhan vs Union of India, the Supreme Court of India upheld this covenant to which India is party and stated that those suffering from mental insanity and schizophrenia cannot be executed.

Since this punishment serves a purpose of retribution, it is not ethical to carry out the sentence until the person is capable enough of understanding why he is being punished.

For a schizophrenic, his world is as real as ours. The travesty of justice is that no real attempt seems to have been made to understand his state of mind. This apathy towards the mentally ill is the real illness and their neglect a crime.

This article was originally published in the Dawn and the Wire.

Continue reading The Imdad Ali case: Why executing a mental patient is severely problematic?

Sunday, October 23, 2016

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The Kigali climate deal - A great start to a difficult marathon

A sunny Saturday in Miami is a god-send to get the perfect tan. The fashionable tan could instead have been a health disaster had there not been the benign Ozone layer in our atmosphere which screens UV rays from reaching us. This layer has been protected through the Montreal Protocol that was signed by countries way back in 1987. Since then, substances called chlorofluorocarbons (that deplete the ozone layer) have been almost phased out and substituted by hydrofluorocarbons (HFCs). No one had anticipated that this substitute could end up creating an even graver problem – of warming planet Earth. No one had thought that such warming could cause droughts and floods in Rwanda, a small central African nation, that far from enjoying, struggled to live through each Saturday.

Amidst all this chaos for survival, people from different communities in Rwanda, come together on the last Saturday of every month, to celebrate a cultural festival called “umagunda”. They work together to find a solution to a common problem at hand. It isn’t surprising that when more than 190 nations with varied standards of living, interests and priorities regarding climate change had to come together to solve the problem of HFCs, they chose Kigali, the capital of Rwanda, as the perfect location for this summit. It isn’t a mere co-incidence that they actually managed to put aside their differences and come up with a solution, in the form of Kigali agreement, on 15th October, 2016 which also happens to be a Saturday. 

Understanding the aspects that make this a landmark deal

A change in mandate: 

For the first time in history, the mandate of an environmental treaty, that too a legally binding one, has been changed. This agreement amends the Montreal protocol (originally targeted at ozone depleting substances) to gradually phase out HFCs which are not ozone depleting but “super greenhouse gases”(some of them can warm the earth 10,000-12,000 times more than equivalent amount of carbon dioxide).

Common but differentiated responsibilities 

Countries, mostly developed, that have contributed higher quantities of HFCs to the atmosphere over larger periods of time have accepted more stringent targets. Developing nations whose economic growth, population and urbanization is still growing, have been given more time to consume HFCs until they are capable of finding and affording cheaper climate friendly alternatives. By accepting “common but differentiated responsibilities”, the world will be able to eliminate almost all of HFCs by 2050 and thus save the planet from warming by an additional 0.5 degree Celsius by 2100. 

While most climatic negotiations accept a division of targets between developed and developing nations, this agreement has taken a step further. Even the developing bloc has been divided into two (the first one has China, Brazil and South Africa and second one has India, Pakistan and some Gulf oil economies). This is on the basis of different ambient temperature conditions demanding different usage of air conditioning, current consumption of HFCs, income levels and projected growth trajectories.

Active involvement of industry: 

Unlike in the past where the industry would act like a pressure group to stall the phase out of climate unfriendly products, this time around, companies like Honeywell and Dupont have invested in research and development before hand to find out alternative refrigerants that would be energy efficient, climate friendly and non hazardous. 

Evaluating India’s hits and misses at Kigali

The most significant achievement was to put itself in a different bloc from China on the basis that it accounts for a mere 2.6% of current global HFC consumption and 1.6% of current global HFC production (as against 23% and 57% respectively for China) and is not expected to peak its usage anytime sooner than 2025. India also has been successful in mandating a technological review of options available periodically so that it isn’t left in a soup in 2028 – the year in which it has to start reducing HFCs.

One of the main issues that remains unaddressed is the cost of technological options available to India currently. In some sectors, like the mobile air conditioning units where substitutes called hydrofluoro-olefins (HFOs) have been tested, the patents are owned by US companies and most of them expire only in 2028. This leaves India no time to adapt to generic cheaper variations. Current costs of transition for India, as projected by a study of Council of Energy, Environment and Water (CEEW) as per 2015 prices, is around 14 billion USD. 

Before finalizing on any alternative technology, the environmental impact of the entire value chain has to be examined. What kind of emissions occur in the manufacture, use and disposal of these substitutes has to be studied. Though companies in India like Godrej & Boyce have started using propane instead of HFC, issues regarding flammability, toxicity, costs of equipment design changes and skilling labor across sectors have not been resolved. 

The way ahead for India

To meet the above two issues, the scientific community, government and industry will have to come together to understand global trends and invest in indigenous research and development. We may explore the option of acquiring cheaper versions of the patented products by offering to phase down HFCs a couple of years earlier. This may not be a bad deal understanding that the sooner we phase out, the lesser number of factories will need to change to the new technology thus saving on costs of transition. The civil society has to be involved in driving lifestyle changes and helping consumers to accept climate friendly alternatives easily. Post signing the agreement, India legally mandated manufacturers to capture and incinerate HFC-23. The regulatory framework would need an overhaul to ensure strict enforcement of such orders. 

Finally, the work on the agreement is far from over. Though it has been agreed that the incremental costs of patents, servicing etc. will be covered by the Multilateral Fund (recently supplemented by contribution of 80 million USD  by philanthropists and donor countries), how the costs will be calculated is yet to be decided. India will have to take a lead in the finalization of this guidance document. As pointed out by Dr. Ajay Mathur of TERI, the phase out of CFCs under Montreal Protocol was done through a flawed process. The incremental costs paid were calculated after deducting gains from energy efficiency. As a result, this acted as a perverse incentive and manufacturers weren’t interested in exploring energy efficient alternatives. India will have to ensure that the incentive structure for finding energy, climate, industry and consumer friendly alternative refrigerants is in place. 

The dynamics of climate change are complex and the success of the Kigali agreement will be a significant yet just one of the steps forward in the larger scheme. Simultaneously India has to proactively participate in arriving at accountability mechanisms for international aviation and shipping emissions. At the domestic front, it needs to invest in renewable energy, achieve power sector reforms and energy efficiency. All this put together can help us realize the ambitious targets that we have accepted in the Paris climate treaty ratified by India earlier this month. On the climate diplomacy stage, India has established its credentials as a flexible, accommodative but strong negotiator. But it needs to keep its promises to be considered as a true “enabler” rather than “obstructionist” in conserving the health of this planet. 

The season for rhetoric is over. The season for action has arrived. 

This article was published in the Quint.

Continue reading The Kigali climate deal - A great start to a difficult marathon

Tuesday, October 18, 2016

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Is parental care only a son's prerogative?

A couple of days ago, the highest court of the land delivered a verdict on a divorce case pending for almost a decade. The court held that the woman meted out cruelty on her husband by forcing him to leave his parents. The bone of contention was mainly on financial grounds. Social media erupted and was divided in its reactions – while some thought it was high time “home-breaking” women got their share of punishment, others questioned the double-standards of a system that is otherwise fine with a woman leaving her parents post marriage but has issues when it applies to a man. 

Judgements are case specific and there could definitely be merit in finding a woman guilty of pressurizing her husband to give up his responsibilities towards his parents. But here is where I have the first problem with the judgement – the court goes on to make a generalization and callously states that “it is the pious obligation” of a “son” to take care of his parents. And instantly it reminded me of my parents who have been taking care of my maternal grand-mother ever since we moved into our new house (constructed on our own plot right behind my grandma’s place) in the year 1995. I do not wish to cast any aspersions on my uncle and his wife who stay in the same house as my grandma’s. My grandma is a great person at heart but her experiences in life (of being the eldest daughter-in-law in a joint family, a wife to a talented husband recovering from alcohol addiction and a mother to a second son who isn’t yet economically stable) have made her quite bitter in the tongue. Whatever she said was reciprocated by my aunt and in the family drama that transcends every other house, the kitchens separated. They are cordial with each other, exchanging delicacies every now and then. But the people who have been there with her every single day (in sickness or in health) are her daughter and son-in-law. 

I am not bragging because they are my parents. Career opportunities or the luxury of long holidays could have taken my parents to places. But I know for a fact that if they were to move out, my grandma wouldn’t survive for long. More than loneliness, sheer neglect would eventually kill her. When my father religiously gives her the morning tea and checks on her medicine replenishments and my mother patiently listens to her complain as she force-feeds her with healthy food, I know I am probably witnessing just an exception. Why else in India would 50% of the elderly above 60+ and 80% above 80+ complain of some sort of mental or physical abuse? (source: Help Age India Survey 2015). I think it’s high time for us to realize that irrespective of the gender, each child (son or daughter) has the obligation to take care of his parents. If the society can internalize this, we probably will not have a “obsession for sons” and hence be able to correct the abysmal child sex ratio in India (918 in 2011 census)

A daughter who weds and goes into another family cannot disown her own parents. Whether an economically independent woman decides to invest in her parents’ life/health insurance premiums, take them out for a vacation or even support them financially for a life-time is entirely her own prerogative. There should be some faith in her judgement as to when, where and what requires her contribution (whether it’s her marital or birth home). After getting wedded, a man or a woman are legally bound to a new set of people – the in-laws. They too deserve the same compassion, respect and love that we owe to our parents. But unrealistic expectations of in-laws replacing parents in our lives are best to be kept at bay. 

The second part of the judgement that caught my attention was commenting on any couple staying away from parents as against the Indian culture. The court states that “in India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family.” This is taking it a bit too far. Individuals who want to be emotionally independent, share very diverse views from their parents, wish to migrate to another city for a living or who want to spend the initial years of marriage in a nuclear set up can afford to do so, if their parents are healthy and can take care of themselves. Care and support (whether financial or emotional) can be given even while staying apart. 

Having said that, we need to be sensitive about a couple of things. Our parents, most probably, haven’t invested in social security since their whole lives revolved around events in ours’- from our birth to graduation to  marriage and then birth of our children – the list is endless. Hence we should invest for them. Also as they grow older, there’s isolation, fear and loss of control and they will need us as much as we needed them. It is then best to be as close to parents as possible. Rather than remember our parents’ home selfishly in times to save on our rent or as a great alternative to crèches for our children, we need to learn to keep them engaged productively post retirement. We need to love and respect them always for what they are and not for what they are worth. We need to plan their future so that we are in a position to communicate this upfront to our partners and set expectations right in the first place.

Before I bid goodbye to you, here's an Irish blessing that I hope every “dadu” witnesses coming true

“May you always be blessed
with walls for the wind,
a roof for the rain,
a warm cup of tea by the fire,
laughter to cheer you,
and all that your

This article was published in the Huffington Post and DailyO

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Saturday, September 24, 2016

Stalking: "They do the crime, we do the time"

In 1976, John Hinckley Jr fell head over heels for Jodie Foster after seeing her play the role of teen prostitute, Iris in the movie “Taxi Driver”. The obsession knew no bounds and after relentlessly stalking her for 17 months, in a desperate bid to impress her, he shot the US President Ronald Reagan. The letter he wrote to her that day read, “As you well know by now I love you very much.” A celebrity of that stature stands horrified today to read about Hinkley Jr’s release from the psychiatric hospital. The fear of the unwanted advance levels us- celebrities and commoners alike. Unfortunately, for the latter, the fear definitely takes a form – a perennial shadow for a lifetime, an acid attack or may be death.

Cracking the code of stalking

Let’s be honest. We live in a delirious world that doesn’t acknowledge the gravity of stalking. In common parlance, any act of repeated unwanted advances to the effect of evoking fear or discomfort in the victim is stalking. It may be an explicit display of aggressive behavior like physically following or spying, vandalizing property, threatening calls or assaults. Or even seemingly innocuous acts like delivering flowers/letters, a barrage of text messages, driving by the victim’s residence, photographing the victim or family members and spreading false rumors primarily about the victim’s character.

Sadly we are way too callous about being on guard. The friend who has been pursuing the girl who isn’t interested in him is a “die hard romantic”. The hot girl who pings a guy on social media after every profile update is a “secret admirer”. The exes who wait outside your office to get you back in their lives are “committed to you for life”. On second thoughts, this is understandable. We are a country that swears by Dilwale Dulhania Le Jayenge –the actor who waves a bra at a woman’s face is the pin up guy who reveals his goodness as he stalks her through Europe and finally rescues her from her pigeon-hunting betrothed with everyone’s consent. What better then can you expect from us?

Institutional and societal failure

Undoing this cultural and gender based conditioning is the first step to take cues seriously and pre-empt any mishaps. The victim needs to have confidence to share such incidents and be taken seriously. Friends, family and teachers need to be a bulwark that doesn’t  seek a “compromise” and brush it under the carpet. They need to help the victim in taking adequate privacy and safety precautions. And most importantly the criminal justice system needs to be sensitized to intervene as early as possible.

Anti-stalking laws were first introduced in California in 1990. The condition is far worse in India. Only in 2013 after the public uproar in the Nirbhaya case, Section 354D of the Indian Penal Code criminalized stalking. As per National Crime Records Bureau, the number of stalking cases in Delhi have doubled in one year - from 541 in 2014 to 1,124 in 2015. Police officials fail to acknowledge the legitimacy of a victim’s fear. Ignoring such precursors to violence, not dedicating resources for investigation, not providing for police protection or restraining orders against the suspect are all chronic failures of the system. Challenges posed due to the anonymity associated with cyber-stalking are a reminder for the need to have stringent privacy laws and training in cyber forensics. Stalking victims tend to relocate to different places (may also change city or state) for safety and this calls for the need for co-ordination among officials – isolated events need to be considered together preferably by the same investigating team to understand the bigger picture.

Knowing the stalker

Assuming the stalkers finally come in contact with the criminal justice system, they are not continuously assessed. All stalkers don’t belong to a homogeneous category. They have varied motivations which needs to be understood to deal with them. Unless they talk to psychologists or specialists, they will continue their behavior even after serving their term – posing an even greater danger. In 1993, Australian stalking expert Paul Mullen, conducted behavioral studies and segregated stalkers into multiple categories: intimacy seeking; socially incompetent; resentful and predator stalkers.

This understanding helps to rehabilitate the perpetrators with the appropriate method. For example: Socially incompetent stalkers can be helped with interpersonal skills and also cultivate empathy for their victims. Predator stalkers are handled individually and not in groups, just like in sex offender programs, so that they do not build a network of mutual support for their behavior. Deep insights into their motives helps the law enforcement authorities predict the modus operandi of the assailant accurately and hence provide suitable protection to the victim.

Understanding the stalking victim

Anyone can be stalked. Statistically however, the figures (80% of the stalking cases worldwide) are primarily skewed towards women. Research proves that certain kind of people have a higher risk of being stalked.
  • People working in the media, fashion, journalism, entertainment business and/or possessing a high profile (in terms of social contact and achievements)
  • People exhibiting the “savior complex” i.e. trying to save or rescue others even at the expense of oneself. Such people get personally involved in another’s lives and have a very unassertive way of helping others. So much so that instead of feeling grateful, the other person feels as if “he is almost entitled to this help” and will not allow withdrawal from his life

Having said that, everyone needs to be equally prepared. 

  • If someone is way too interested in your life too soon, makes comments that you would find amusing from even a long term friend or is very eager to accompany you to every social event, keep them at bay. Trust your intuition and at the first signs of abnormality or danger, be firm and tell the person you aren’t interested. It may just be a misunderstanding, so better to communicate upfront. 
  • Ask your network to be careful of not being manipulated into giving your personal information. 
  • If the danger persists, ask for help from the police. During this period, do not try to reason with the stalker else he will believe that he is making progress. 
  • To have someone prosecuted, sufficient evidence needs to be gathered. Hence maintaining a log book of stalking incidents and testimonials to back it is crucial. 
  • It is important that an accurate threat assessment is done which can prompt you to ask for protection or change your routine/place of residence/work. 
  • And finally, getting psychological help during this period is a must.

Stalking is like slow rape. Probably only Karuna, the 21 year old medical student who was stabbed 27 times by her stalker this week in Delhi, could judge whether her gruesome death was less painful than a life lost bit by bit. We failed her at every step. Only we are guilty of murder.  Only we can make this stop.

This article was published in the Quint and Youth Ki Awaaz
Continue reading Stalking: "They do the crime, we do the time"

Monday, September 05, 2016

"My dear Teacher, I am sorry for having forsaken you !"

September 5 , the birth date of Dr. Sarvapalli Radhakrishnan and celebrated as Teachers' Day in India, was never just another event on our calendars. We practiced for days perfecting each step of Madhuri's "Ek Do Teen" at the age of 4. We saved up for months to buy a grandfather's clock for the staff-room at the age of 14. The moments when you could see that rare smile on the face of the strictest Physics teacher or that impromptu tango performance of the shyest Geography teacher - were those for which each student - Mary, Mehnaaz or Meera - waited for an entire year.

Almost two decades later, my teachers and I have still remained in touch. Thanks to social media. My face lights up every time I see her retweet my articles and I remember to wish her on every September 5th. But this year, something was to happen post which Teachers' Day would never be the same before.

On a habitual trip of scavenging for fresh books on the market last month, I ended up visiting the book store that hasn't failed bibliophiles for generations. Even in the chaos of the busiest market in town, the quaint "D.P. Sur and Sons" is reminiscent of the secret corner at home that you retire to for unabashedly smelling book pages. To my surprise, the shop was filled only with books of medical studies. The current owner, Shri O.P Sur, didn't seem amused at my ignorance - almost as if he had got used to politely turning away book lovers with a heavy heart. He was so endearing (I would have cast him as the grand-dad in my version of Kapoor and Sons) that I couldn't stop myself from having a chat. And when I left the shop, I had this gut wrenching feeling - of being a part of a generation whose teachers and guides, in the words of the old man, "felt forsaken and lonely" and "found gratification and solace in the books around them".

Looking back, I feel that even though I love my teachers, I have seldom done enough to express it.Their legacy is us, their students,who somehow don't manage the time to check on their teacher's retirement plans - for most likely they will be lonely as parents too in the sunset years of their lives. Compare the amount of pride that they take in sharing our success stories on social media - with that of our interest in their achievements. Those difficult adolescent years when I felt my family didn't understand me, I found comfort in speaking to that teacher. That cut throat competitive environment where I was pushed a step closer to cynicism , I took a step back to innocence realizing the humility that teacher brought to the classroom every day. Those days of paranoia in office when I didn't get gratification for my work, I thought about my physical education teacher who did her work with unadulterated joy even when we hated her for making us sweat out in the sun. I am what I am for what my teachers have made me - yet I have somehow made peace with not looking back at them just enough. 

To my Teacher.

I am sorry for having forsaken you. I know that perhaps you have already forgiven me. I know that you will probably do everything to deny my fallacies and instead take pride in what I have achieved so far. But you are human too, just like my parents and have every right to feel that anguish that I have caused you by that neglect. 

Everyday the world celebrates me , including this very day at Tata Literature Live, is a gift from you. For all those years that I didn't realize it - every day is Teachers' Day. As I leave the podium, even if one listener feels the urge to leave this room and call his teacher, I will know that my apology has been accepted.

This story was selected as a winning entry and presented at  Tata Literature Live 2016.
Continue reading "My dear Teacher, I am sorry for having forsaken you !"