Reforming the Tribunals Framework in India: An Interim Report

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Tribunals form an important parallel structure for dispute resolution alongside regular courts. By involving expert members, administrative and logistical support from the executive, and specialised procedures, tribunals promise a speedy and more technical resolution of disputes under certain statutes. Unfortunately, despite its intentions, tribunals have often replicated some of the problems our judiciary suffers from and then some. Apart from issues such as rising pendency and inadequate funds, the constitution of tribunals often toes the line of judicial independence by an overemphasised role of the executive. Despite clear tests for constitutionality laid down in the Supreme Court, the reality of how tribunals operate is far from ideal. With non-uniform systems of appointments, removal, service conditions, etc. coupled with a larger say given to the executive, which is a frequent litigant before these fora, the framework of central tribunals leave much to be desired. While past Law Commission Reports and judicial pronouncements have tried to capture the essence of these issues, the true extent of the problems are often expressed in limited measure. Similarly, recommendations to improve this framework are often somewhat broad, with little emphasis given to specifics.

In this interim report, we examine the tribunals framework and offer a comprehensive statutory analysis of Acts, rules, and regulations, alongside a critical analysis of constitutional jurisprudence regarding tribunals. This captures the true extent of problems across the tribunals space. Furthermore, we construct an alternative to the present framework, by exploring a rationalised scheme of tribunal mergers and by fleshing out the organisational structure and functioning of a National Tribunals Commission to oversee this framework. This interim report hopes to offer the foundation for a more constructive discourse around tribunal reforms.

Download the full Report- Reforming the Tribunals Framework in India: An Interim Report

 

Securing our Future: Analysing the Regulatory Framework for Pensions in India

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In the past few decades, burgeoning populations and increasing life expectancies have led to an unprecedented rise in the elder population across the world. India is no exception to this trend, with the elder population projected to reach 19% of the total population by 2050. A significant part of this group will be unable to work for a living, and also simultaneously incur higher medical and other expenses. Not only does the lack of a financial security net for this group leave it vulnerable to a number of exigencies, it also increases the likelihood of inter-generational continuity of debt and a higher fiscal burden for the government of the day. Given these factors, the presence of a sound, efficient and reliable pension system is indispensable to the economy. Further some parts of the elder population, by virtue of their socio-economic standing, levels of education and financial sophistication are likely to be hit harder by ageing, and may therefore require targeted intervention for adequate protection. 

The Pension Fund Regulatory and Development Authority of India (PFRDA), set up in 2003, is responsible for establishing, developing and regulating pension funds in India. 

This Report has undertaken a study of the PFRDA Act and some of the key regulations under it, and suggested reforms wherever appropriate. Some of the important reforms surveyed are in the areas of redressal of subscriber grievances, regulations with respect to aggregators and points of presence, as well as the NPS Trust Regulations.

 International experience in this field, such as the pension systems in United Kingdom, Australia, Chile, Canada and New Zealand have also been surveyed to highlight best practices in this regard. 

This Report also points to prevailing gaps in the regulation of micro-pensions and the treatment of distressed pension funds. Both of these are critical, and this Report makes the case for detailed discussions on them. 

Lastly, this Report examines the Atal Pension Yojana, a PFRDA scheme targeted solely towards the unorganised sector. Having identified some unique concerns for this sector (which comprises of the majority of the workforce), this Report suggests some measures to tackle the same.

Download the full report Securing our Future: Analysing the Regulatory Framework for Pensions in India

Status of Physical Infrastructure in Lower Judiciary

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The state of physical infrastructure in the lower courts remains an under-studied topic in India, despite such infrastructure being an important component of access to justice. In this bilingual report (English and Hindi), we examine the state of physical infrastructure of lower courts in Delhi and the National Capital Region (NCR). Using parameters developed by the National Court Management Systems (NCMS) Baseline Report on Court Development Planning System (Infrastructure and Budgeting), 2012, we have surveyed twelve (12) court complexes in Delhi and NCR. 

We illustrate how a litigant accesses court spaces and interacts with its physical infrastructure. A special focus has been given to vulnerable groups, such as persons with disabilities, to assess whether the physical infrastructure enables access or otherwise. The report also examines how this infrastructure varies between rural and urban court complexes. Broadly, it offers a comprehensive assessment of the status of physical infrastructure and what a litigant can expect from their nearest court complex. By doing so, it provides a blueprint for the infrastructural development of lower courts that can be used by the judiciary and executive.

Download the full report 'Status of Physical Infrastructure in Lower Judiciary'

Submissions on the draft New Drugs and Clinical Trials Rules, 2018

 

Vidhi responded to a call for public comments on the Draft New Drugs and Clinical Trials Rules, 2018. We have recommended changes to these Rules to better protect the rights and safety of clinical trial volunteers, ensure harmonisation with international standards where needed, ensure the integrity of the drug regulatory process and improve enforcement.

Download the complete submissions on the draft New Drugs and Clinical Trials Rules, 2018

Money and Elections: Necessary Reforms in Electoral Finance

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In light of the modifications in electoral finance laws made in the 2016 and 2017 Budget, this report builds on existing discussions to clarify how such reforms in election law can be evaluated. It examines the evolution of key legal provisions before identifying barriers and systemic issues in the field on the basis of India’s unique experiences. It further enumerates potential solutions on the basis of international practice and draws up proposals to overcome existing regulatory barriers so that such solutions may be effectuated:

1. Electoral finance law must pivot towards transparency, strictly requiring disclosures of candidate assets and liabilities (including the source of assets), registration and reporting requirements for political parties, and the applicability of the Right to Information Act, 2005 to such parties.

2. Rules regarding funding and expenditure need to be tightened by placing an absolute cap on anonymous donations, banning corporate donations (except possibly to an Election Commission-controlled Trust), regulating political advertisements, preventing foreign sources of donations, outlining permissible categories of expenditure, regulating third-party expenditures, and laying a limited base for public funding.

3. The enforcement of the proposals above must be accompanied by the possibility of strict penalties such as the deregistration of defaulting political parties, along with increased provision for the independence of the Election Commission of India.   

Issues related to electoral finance have a long and troubling history in our polity with many previous attempts to tackle the problems involved. However, the matter has come back into focus with the last few Union Budgets creating avenues for funding through new instruments, measures that reduce public scrutiny on certain fronts, and changes that affect past foreign donations. This report was released at the Vidhi Dialogue event featuring Dr S.Y. Quraishi, Prof Rajeev Gowda, and Dr Aditya Sondhi.

Download the full report- Money and Elections: Necessary Reforms in Electoral Finance

Waste Picker Welfare Law in Karnataka

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Vidhi's report on Waste Picker Welfare Law in Karnataka focuses on the importance of Waste Pickers to India's Solid Waste Management and the need for a Waste Picker Welfare Law to ensure their well being.

The report specifically explores three themes- 

One, the vital contributions of waste pickers across India in tackling its solid waste management crisis. Two, the plight of waste pickers in the country due to the non recognition of waste picking as a genuine profession under the law and finally, the need for a law that specifically recognizes it as a genuine profession and grants them their associated rights

Download the full report on Waste Pickers Welfare Law In Karnataka

A study of Karnataka High Court’s Writ Jurisdiction

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A High Court’s writ jurisdiction is considered to be an ‘extraordinary jurisdiction’ whereby the High Court – which is at the apex of the State judicial machinery, becomes directly accessible to ordinary citizens seeking relief against any authority, including any Government. A detailed study of the manner in which this extraordinary jurisdiction is invoked and exercised, is in the interest of both the Judiciary and the State, since writ petitions constitute a bulk of a High Court’s burden, with most being filed against the Government.

Vidhi's Report on the Karnataka High Court’s writ jurisdiction is based on a data driven study of writ petitions filed before the Karnataka High Court across a period of five years before the Bengaluru Bench (2012-2016) and three years before the Dharwad and Kalaburgi Benches (2014-2016). 

The data has been studied to understand the nature of writ petitions filed against the Government, functioning at different levels of governance.  This gives us a nuanced understanding on the issue of ‘Government litigation’ and highlights the supply-side issues which contributes to making the ‘Government’, the biggest litigant. This study has also shed light on some of the inefficiencies in the functioning of the Karnataka High Court, both on the judicial and administrative side.

The raw data which has been collected for the purposes of this study will be uploaded shortly.

Download the full report on Karnataka High Court Writ Jurisdiction

Financing Urban Local Bodies in Karnataka

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Vidhi's report on financing urban local bodies looks at the legal impediments that restrict urban local bodies in Karnataka from being financially independent. 

The report finds that City Corporations of Benglauru, Mysuru, Mangaluru and Davangere rely heavily on State Government grants and are unable to maximize their revenue potential due to shortcomings in the law. 

Due to limited enforcement capabilities, outdated guidance value, high number of litigation and archaic survey records of properties, City Corporations are unable to maximize their property tax collection. 

Download the full report on Financing Urban Local Bodies in Karnataka

Vidhi Bengaluru Briefing Book: 15 Legal Reforms for Karnataka

This briefing book on 15 Legal Reforms for Karnataka is a collation of suggestions made by the Vidhi Centre for Legal Policy, Bengaluru, to transform Karnataka's legal and regulatory environment by identifying 15 areas of law and governance in the State of Karnataka which are in need of reform, and suggesting means in which these reforms can be implemented. The briefing book covers three broad themes - improving laws providing for social welfare, particularly for marginalised sections of society; improving governance and regulatory structures, including judicial and administrative reform; and creating frameworks for properly governing with and improving technological innovation.

Download the full report 15 Legal Reforms for Karnataka

Government Litigation: An Introduction

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There is a wide consensus that India is in need of large-scale governance reform. In order to adequately address such a mammoth challenge, we need to delve deeper into factors that contribute to the inefficiency of public institutions. One such constituent is the high volume of government litigation. While it is well known that litigation clogs bureaucratic machinery, hardly any attempts have been made to understand the issue. In an effort to address this gap, Vidhi has taken an initiative to publish a series of reports on government litigation in India. 

The following report sets the context for the series by introducing government litigation as a challenge. It provides a literature review of current debates and policies to address the challenges, following which it highlights the scope of the series and its intended objectives. 

Download the full report on Government Litigation: An Introduction

The Law isn't Straight: A Queer Person's Guide to Accessing Rights

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Despite progressive judgments of the Supreme Court in NALSA v Union of India (2014) and Puttaswamy v Union of India (2017), the overall legal regime for queer persons in India remains severely lacking. Recognising the slow nature of legal change and the need for alternate strategies in the meantime, this manual is an attempt to help queer persons navigate their daily lives under this flawed regime. The manual deals with identity documents, violence, education, health and personal finances. 

While this manual seeks to be a useful starting tool for LGBTQ+ persons in their attempt to access the legal system, it does not reflect the diverse experiences different persons have while trying to access their rights. We would be grateful for your feedback and hope to update the manual to make it as useful as possible.

Download the full manual titled The Law isn't Straight: A Queer Person's Guide to Accessing Rights

UPDATE: Audio guides on how to change your name and gender on your basic identity documents are available in Hindi, Malayalam, Kannada, Bengali and Marathi

Tilting the Scale: Gender Imbalance in the Lower Judiciary

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Discourse on judicial reforms in India has tended to focus on the issues of judge vacancies and case delays, to the exclusion of other institutional issues which plague Indian courts. One such problem that has received scant attention is the lack of judicial diversity.

To spark conversation on this important issue, this Vidhi Briefing focuses on one parameter of judicial diversity, namely gender. It presents, for the first time, state and district-wise data on the gender composition of the lower judiciary. These findings raise several implications, which will be examined in-depth in future reports.

Through these reports, we hope to bring much-needed attention to issues concerning the lower judiciary which, despite being the first or only point of contact for most litigants, is relatively neglected in academic and policy discourse compared to the higher judiciary. We also hope to encourage conversation on additional data and research needed to understand possible causes for low gender representation and ways to rectify this. A lack of equal representation, particularly when as severe as it appears to be in India, raises serious concerns that merit deep and sustained investigation. 

For a spreadsheet containing the district-wise gender composition of the lower judiciary in India, click here.

Download the full report on Tilting the Scale: Gender Imbalance in the Lower Judiciary

Comments on the draft Uttar Pradesh Self-Financed Independent Schools (Regulation of Fees) Bill, 2017

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Vidhi responded to a call for public comments on the draft Uttar Pradesh Self-Financed Independent Schools (Regulation of Fees) Bill, 2017. Vidhi’s submissions critiqued the Bill based on inconsistency with existing legal frameworks and Supreme Court decisions, as well as pari materia legislations on fee regulation across different States. The submissions recommend several changes to the existing Bill based on the above analysis. Vidhi’s submissions can be accessed here.

Vidhi Briefing Book - Towards the Rule of Law: 25 Legal Reforms For India

 

The Vidhi Centre for Legal Policy released its fourth Briefing Book titled ‘Towards the Rule of Law: 25 Legal Reforms for India,’ on 22nd December 2017 at the Constitution Club of India. Every year, Vidhi comes out with its Briefing Book, which covers structural legal reforms that we believe India needs.

While the last few years have seen several economic reforms, critical legal reforms, particularly of a structural nature, have not kept pace. To fill this gap, Vidhi’s fourth Briefing Book looks at 25 pressing and diverse legal reforms India needs to address its fundamental governance challenges. As with all our work, the Briefing Book too provides clear solutions to the challenges we have identified.  We hope that this will go some way to protecting the rule of law, if not wholly, then very substantially.

As a legal policy think-tank, the rule of law is our lodestar and careful research our compass. We hope to undertake this task of publishing a Briefing Book every year, to ensure that slowly, but surely, the rule of law is a living reality for every Indian

Download the full report: Towards the Rule of Law: 25 Legal Reforms For India

Report on Ranking Lower Judiciary Appointments

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A three-judge Bench of the Supreme Court initiated a suo-moto Public Interest Litigation in May 2017 to assess the feasibility of setting up a Central Selection Mechanism to make selections to the subordinate judiciary across the country. Whilst the debate on constituting such a central authority to coordinate appointment of subordinate judges is ongoing, the process in which such appointments are currently carried out remains unclear. Further, no empirical assessment of lower judiciary recruitment processes and its success in filing vacancies has been undertaken.

In this Vidhi Briefing, we attempted to study how the process of appointment of judges plays out in practice, by collecting state-wise data on the appointment of District Judges, via direct recruitment from the bar and Civil Judges (Junior Division)’. Based on this information, we ranked the performance of states in appointing judges to their subordinate judiciary on two metrics - average time taken to complete a recruitment cycle and percentage of vacancies potentially filled. This Briefing provides useful insight into fault lines of the present system of appointments that must be addressed, regardless of whether the current scheme of subordinate judicial appointments is preserved or a central mechanism is constituted.

Download Full Report on Ranking Lower Judiciary Appointments

Report on Systematizing Fairplay - Key Issues in the Indian Competition Law Regime

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Since the enactment of the Competition Act in 2002, the business milieu has changed considerably globally and in India. More and more businesses are now being run in the virtual world and newer models of business exist now which would have been inconceivable a decade ago. Given the intertwined relationship of competition law and the markets, in order for the law to remain relevant, it is imperative that it develops in line with market realities and revamps from time to time.

Almost 15 years have elapsed since the inception of the Competition Act and it is now an opportune time to take stock of its performance and devise a workable way forward. In this Report, we therefore, identify key structural and procedural issues in the Indian competition law framework and discuss relevant experiences from the European Union and Singapore, to understand how similar concerns are addressed by their regulatory frameworks. Drawing from these practices, we provide key recommendations to deal with these concerns in the Indian context. As India gears up to meet the challenges posed by a buoyant economy, it needs to cure these anomalies in its competition law framework to be able to fully reap the benefits of a thriving market based economy.

Download the full report on Systematizing Fairplay - Key Issues in the Indian Competition Law Regime

Submissions to the Standing Committee on the No Detention Policy

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The Department-Related Parliamentary Standing Committee on Human Resource Development recently invited comments on the Right of Children to Free and Compulsory Education (Second Amendment) Bill, 2017. An amendment is sought to be made to Section 16 of the Right of Children to Free and Compulsory Education Act, 2009, which prohibits schools from holding back or expelling any student till they have completed an elementary level of education i.e. grade 8. Through this amendment, this prohibition on holding back and expelling (popularly known as the No Detention Policy) will be partially done away with.

Currently, students up to grade 8 are evaluated through a system of ‘Continuous and Comprehensive Evaluation’ and cannot be made to repeat a grade. If this section is amended, schools will be required to conduct exams for students in grades 5 and 8. If they fail this exam, they will be given additional instruction and required to give a re-examination within two months of the results being declared. If they fail this re-examination, states must frame rules/guidelines to prescribe whether they will be held back in the same grade. However, they will still be prohibited from expelling students.

Based on a survey of available data on educational indicators (including drop-out rates, retention rates, transition rates and learning outcomes), we found that there is no clear evidence to show that the No Detention Policy has caused a deterioration in education outcomes. Any such deterioration may be attributed to a variety of factors, including high student-teacher ratios and insufficient school infrastructure. We therefore recommend that no amendment should be made to the provision unless rigorous evidence is available on the impact of the No Detention Policy. If such an amendment is to be made, it must be based on the research findings of the National and State Advisory Councils. Further, it must contain sufficient safeguards: a sunset clause, a prohibition on the use of terms such as ‘pass’ and ‘fail’, and must be accompanied by detailed detention regulations.

Download Submissions to The Parliamentary Standing Committee on Human Resource Development

Organ Transplant Law: Assessing compatibility with the right to health

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With instances of commercial dealings in human organs being discovered on a regular basis, it has become clear that there is a need to re-examine the law regulating organ transplants. In this report, we therefore analyse the Transplantation of Human Organs and Tissues Act, 1994, and the degree to which it has met its objectives. Using information obtained from different authorities under the Act, we assess its content and functioning against a set of 'right to health' indicators. 
Based on this, we recommend changes to the law, which include the harmonisation of the definition of 'brain death' across different laws and amending the Act to ensure that victims of human trafficking are not treated as offenders.

Download full report- Organ Transplant Law: Assessing compatibility with the right to health

Regulation Of Credit Rating Agencies In India

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Credit Rating Agencies form an essential part of the financial markets. SEBI has regulated them since 1999. However, in the years following the financial crisis, specific concerns have been raised regarding their regulation globally, as well as in India.

This report highlights the concerns regarding the regulation of credit rating agencies in India, examines the solutions adopted by regulators in other jurisdictions, and makes recommendations to strengthen the regulatory framework in India.

Download the full report-Regulation Of Credit Rating Agencies In India

Strengthening Mediation in India: A Report on Court-Connected Mediations

Regulation of mediation practices and frameworks is a global debate, with different facets of such regulation being the subject of numerous academic and policy reform discourses. In India, mediation was formalised as an alternative dispute resolution mechanism, and brought on the statute book with an amendment to Section 89 of the Civil Procedure Code, 1908. With more than a decade’s passage, a review of court annexed mediation in India is imperative to reinvigorate the framework with necessary reforms.

In an interim report, we had studied four jurisdictions, namely Australia, Singapore, United States of America and the United Kingdom, to ascertain best practices and takeaways which may facilitate the establishment of an efficient framework for court connected mediation in India. 

The final report compiles and presents the data provided to us by the mediation centres at the Delhi, Karnataka and Allahabad High Courts. It also presents the main discussions covered during round table and individual interviews conducted with mediators and administrators at the Delhi Mediation Centre and the Bangalore Mediation Centre. Based on the data gathered, the report analyses the performance of court connected mediation programmes and makes institutional and legislative recommendations to strengthen mediation in India.

This report was prepared in collaboration with the Department of Justice of the Ministry of Law & Justice, Government of India, and has been submitted to the Department. The final report and the data collected from the mediation centres can be downloaded from the links provided below.

Download the full report- Strengthening Mediation in India: A Report on Court-Connected Mediations

Download the data collected from the mediation centres