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

Environmental Clearances and Monitoring in India: Report Card for the Ministry of Environment, Forest and Climate Change

One of the biggest challenges facing environmental law in India today is a weak implementation framework. Although laws, rules and regulations abound, compliance and enforcement are poor, with grave consequences for the environment and the rule of law. This is exacerbated by a lack of transparency-information about violations is hard to come by, making it more difficult to hold authorities accountable. 

This Report Card for the Ministry of Environment, Forest and Climate Change (MoEFCC) is an attempt to make more information of this kind available. We have analysed over 550 environmental clearances granted by the MoEFCC to assess the performance of its duties under the Environment Impact Assessment Notification against three parameters-speed, quality of appraisal and post-clearance monitoring. Our findings demonstrate that although the speed of granting environmental clearances has significantly reduced, there are still serious deficiencies in the quality of appraisal and a neglect of monitoring duties by the MoEFCC. 

Environmental Clearances and Monitoring in India: Download the Full Report

Regulation of Private Schools in India

The last decade has witnessed growth in both the number of private schools in India and the proportion of children enrolled in them. The proportion of private schools rose from 19.49% in 2007-08 to 22.74% in 2014-15.  Around the same period, the share of enrolment of children between the ages of 6-14 in private schools rose from 19.3% to 30.8%.

The regulation of private schools in India remains an understudied topic, with little literature on the theory and practice of regulation, or on comparisons of different regulatory policies. The Right to Education Act, 2009, lays down norms and standards for private schools, including infrastructure norms, minimum teacher qualifications, pupil-teacher ratios and curricular standards. However, some aspects of private school operations continue to be governed almost exclusively by State laws, such as fee fixation and inspection of schools. Others are now governed by a combination of the RTE Act and State laws, such as recognition, hiring of staff and curriculum.

In this report, Vidhi has examined the existing regulatory framework for private schools in India, with a view to identifying common challenges and areas in need of reform. We have studied regulations for private schools in five States and proposed a normative framework for evaluating them. Based on the conclusions drawn from the evaluation, as well as existing international, constitutional and national legal obligations on private schools, we propose a roadmap for drafting State-level model regulations for private schools.

Regulation of Private Schools in India- Download Full Report

 

Grievance Redressal Mechanisms in Public Healthcare Establishments

In India, the right to health is not a statutory right and the National Health Policy, 2017 does not endorse a rights-based approach. It states that policy reform in healthcare should be through incremental infrastructure development, and suggests the setting up of medical tribunals to address disputes on standards of care, price of services, negligence and unfair practices.  However, setting up yet another tribunal may not be the best solution.

In this report, Vidhi has done an empirical analysis of complaints filed against public healthcare establishments to get a sense of the kinds of complaints made, the forums utilised and the remedies granted. Further, we have also analysed the existing legal and policy framework applicable to public health establishments in relation to grievance redressal. Though multiple avenues like the Consumer Protection Act, the Clinical Establishments Act, NHRC and writs are available for complaining against health right violations, each has its own shortcomings.

A lesser developed and a lesser used avenue is the internal grievance redressal mechanism in public healthcare establishments, and the focus of this report is to revamp this mechanism, to ensure that all kinds of complaints are resolved effectively. This report is a step towards informing the debate on enforcement of the right to health in public health establishment through internal grievance redressal mechanisms.

Grievance Redressal Mechanisms in Public Healthcare Establishments-Download Full Report

Cleaning Delhi's Air: Implementation Action Plan

The Vidhi Centre for Legal Policy has recently published an Implementation Action Plan to tackle Delhi’s air pollution. Using the IIT Kanpur’s Comprehensive Study on Air Pollution and Green House Gases (GHGs) in Delhi as its basis, this Action Plan suggests measures to control pollution from five major sources of air pollution in Delhi—emissions from coal-fired power plants, vehicular emissions, burning of crop residue, emissions from ready-mix concrete batching plants and construction sites. Although the Central Pollution Control Board has already drawn up a Graded Response Action Plan (‘Graded Action Plan'), its main thrust remains the stringent enforcement of existing standards/rules/bans. In this Action Plan, we attempt to go beyond the routine recommendation to strengthen monitoring and compliance and identify a range of actions—legislative, executive, policy, financial—that are needed to give effect to the many solutions that have already been proposed to combat Delhi’s air quality crisis.

Cleaning Delhi's Air: Implementation Action Plan- Download Full Report

Inefficiency and Judicial Delay: New Insights from the Delhi High Court

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In India, pervasive delay in courts is typically blamed on judicial vacancies, and reforms tend to focus on long-term measures to increase the number of judges. A new study by the Vidhi Centre for Legal Policy, however, uses the Delhi High Court as a case study to demonstrate links between inefficiencies in court functioning and delay, and presents clear quantitative evidence on how several kinds of inefficient behaviour exhibited by counsel or the court manifest in case delays. We found a striking 97% of cases filed in the Delhi High Court and at least 60% of hearings in the court are affected by some inefficiency, and cause cases to be delayed.

To contextualise and explain the Delhi High Court’s high disposal rates in recent years, this report also closely examined cases that were disposed relatively quickly, and mapped the nature of cases and case categories that do not require prolonged adjudication. We found that speedy disposal of a case may reveal more about the case’s relative simplicity, rather than the court’s ability to handle its entire workload. To address delay and backlog, the report recommends institutional, policy and legislative reforms that focus on eliminating existing inefficiencies in functioning, measures that must accompany moves to increase judge strength and judicial infrastructure.

Inefficiency and Judicial Delay: New Insights from the Delhi High Court

alt : Inefficiency-and-Judicial-Delay_Vidhi.pdf

Manual on Plain Language Drafting

Indian laws continue to be drafted in an archaic fashion. Combining multiple legislative ideas in one single clause, reliance on redundant tools such as provisos and notwithstanding clauses, use of archaic, vague and foreign words and the employment of gendered language are some such practices. Poor, complex drafting renders a law inaccessible to the common person. The need of the hour, thus, is to simplify legislative drafting.

With the object of making laws simpler and accessible to all, Vidhi has come up with a Manual on Plain Language Drafting. The Manual sets out guidelines for the simple drafting of a law - the first part comprises guidelines dealing with the structure of a law (order of chapters and clauses, structural elements of preliminary clauses, definitions, etc.), while the second part lists out language guidelines (use of foreign words, grammar and sentence construction, etc.). To demonstrate the benefits of simple drafting, these guidelines are then applied to re-draft an existing law – The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007. Vidhi hopes that this Manual will serve as the starting point of the much needed journey towards the simpler drafting of laws in India. 

Manual on Plain Language Drafting

alt : Drafting-Manual_Vidhi

Parliamentary Productivity Index: Measuring Disruptions in the Indian Parliament

In July, 2016, Vidhi released a Report relating to Disruptions in the Indian Parliament. In this report, we studied the debates over the Monsoon and Winter Sessions of the Parliament, to understand the structural and substantive reasons behind the disruptive activity observed in its sessions. We also studied cross-jurisdictional practices relating to Parliamentary practice and procedure, as well as the debates conducted in these countries, wherever accessible. In conclusion, we identified some key reasons why disruptions are so prevalent, and suggested reformatory measures to move towards higher levels of productivity and constructive debate in the Parliament. Additionally, we observed and discussed best practices in other jurisdictions which would also contribute to better and constructive Parliamentary debates.  

As a follow up to the Report, we have now sought to create an index, which measures the quantitative and qualitative aspects of Parliamentary debate. Taking the Question Hour as a representative sample, this index measures the productivity of the Lok Sabha over a period of 100 days. We have also suggested measures to identify the most disruptive members. 

 

alt : Parliamentary-Productivity-Index_Vidhi

Analysis of the Medical Treatment of Terminally ill Patients Bill 2016

In a petition currently before the Supreme Court to determine the legality of advance directives, the government has assured the Court that it will pass a legislation regulating the withdrawal of life saving treatment from terminally ill patients. Following this, and based on the recommendations of the Law Commission of India, the government solicited comments from the public on a draft Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill.

To help inform the debate on this issue, we will be publishing a series of reports on end-of-life medical care and decision making. In the first report in the series, we examine this Bill, assessing its provisions against a set of principles that ought to govern such situations. This includes the right to die with dignity, patient autonomy and the ability to exercise it, the primacy of the patients best interests, communication and consultation between the medical practitioner, the patient, and the patient’s kin as well as minimising judicial intervention in end-of-life decision making.

Based on our analysis, we suggest a way forward for current efforts at drafting an effective and rights-respecting legislation, that also takes into account the ability of doctors to make medically sound decisions in the best interests of the patient.

 

alt : Analysis-of-the-MTTP-Bill_Vidhi

Law in Numbers: Evidence based Approaches to Legal Reform

 

Law-making and reform largely continue to be guided by anecdote, intuition and common sense. While there is much to commend each of these as foundations for lawmaking, without the necessary empirical evidence, laws often fail to achieve their desired results. The history of modern India is littered with failed legal interventions that took no note of, or actively disregarded, data-based research that showed that the measure being attempted would fail.

We believe that numbers can tell a story. Rather than relying on abstract principles or anecdote, a law-maker who wishes to make the maximum intended impact through the law ought to be informed by facts borne out by empirical evidence. Currently however, such evidence is largely conspicuous by its absence. Through our Briefing Book, we seek to plug this gap in public policy. The Book takes 20 topics of contemporary legal relevance and on the basis of empirical evidence either, suggests reforms or approaches towards reform of the law. It covers five broad themes, and show how in each of them numbers can form the plot lines of a powerful reform story:

  • The Judiciary
  • The Financial Sector
  • Crime and Society
  • The Legislature
  • Environment & Human Capabilities

The Book was launched on the 2nd of December, 2016. It can be accessed here.

alt : Vidhi-Briefing-Book_Law-in-Numbers

Submissions to the Ministry of Health and Family Welfare on the Medical Devices Rules, 2016

As part of its larger efforts to overhaul the regulatory framework for drugs and medical devices in the country, comments were invited by the Ministry of Health and Family Welfare on the Medical Devices Rules, 2016. These Rules introduce a process and conditions for the grant of licenses to import, manufacture and sell medical devices. Medical devices have been categorised based on the severity of risk associated with their use. Based on this categorisation, authorities have been set up to ensure that medical devices are compliant with specified quality standards and to audit manufacturing sites. The Rules also specify labelling requirements, impose a duty on license holders to recall defective medical devices and introduce safeguards in the process of clinical investigation and performance evaluation of medical devices.

In these comments, we note that the executive lacks the power to introduce certain provisions in these Rules. These provisions, usually in the form of primary obligations, would require legislative backing. For the effective implementation of these Rules, we recommend that a regulator (similar to the Food Safety and Standards Authority of India) with greater powers of enforcement be introduced. Finally, we provide a clause-by-clause critique of the Rules and recommend changes for the removal of ambiguity with respect to the scope and applicability of these Rules, the harmonisation of provisions with respect to medical management and financial compensation with Schedule Y of the Drugs and Cosmetics Rules, 1945 as well as ensuring a smoother transition from the provisions currently applicable to medical devices to these comprehensive Rules.

alt : Comments-on-the-Medical-Devices-Rules-2016_Vidhi

Submissions to the Standing Committee on the Transgender (Protection of Rights) Bill, 2016

The Transgender Persons (Protection of Rights) Bill, 2016 seeks to introduce anti-discriminatory and welfare measures for transgender persons in India. The Bill comes two years after the landmark NALSA judgment of 2014 which recognized the fundamental rights of transgender persons and gave broad directives to the government to facilitate the realization of these rights. This Bill is a critical opportunity to correct the historical wrongs perpetrated on transgender persons, and to guarantee them a life of dignity and equal opportunity. 

Upon close examination, we find that there are several counts on which this Bill fails to deliver, some of which are listed below: 

● First, the Bill significantly deviates from the NALSA judgment 

● Second, the anti-discrimination provisions in the Bill are weak and limited in scope. For instance, the Bill fails to define the key term “discrimination” 

● Third, the Bill lacks adequate accountability mechanisms. 

● Fourth, the Bill sets up a Screening Committee to certify transgender persons, which runs against the right to self-identification recognised in NALSA. 

In sum, this Bill appears to be an unsatisfactory attempt to achieve its stated purpose: the protection of rights of transgender persons. It is recommended that the Bill be redrafted and brought in line with the directions of NALSA, as well as the recommendations of the Expert Committee Report. This would imply changes in the definition of ‘transgender’, use of rights-based language, a provision on reservations, clear delineation of obligations of different governments and relevant stakeholders, introduction of an effective National Council, a powerful enforcement mechanism, and crafting of comprehensive welfare measures, including measures for creating awareness and sensitizing stakeholders about concerns of transgender persons. Most importantly, the process of redrafting must be in conjunction with extensive consultations with transgender persons including marginalized voices such as transmen and intersex persons.

Submissions on the Transgender Bill

alt : Submissions-on-the-Transgender-Bill-2016

Submissions to the Ministry of Human Resource Development on the New Education Policy

The Ministry of Human Resources Development recently released its inputs for the draft National Policy on Education, 2016 for public deliberation. The proposed policy is in itself significant considering the dramatic changes that the political economy of the Indian state has seen since the previous education policy of 1986.

As the National Policy on Education is almost a generational document, it ought to take note of the changing role of the state in providing public goods, including education. Private sector’s presence and influence in elementary education would only expand. The complexity of the sector requires greater decision-making at local level, involving stakeholders, communities and local governments. The state must continue to have an important role in laying down policy, a framework curriculum, and principles and values to hold institutions and personnel responsible. The delegation of power must be both democratic and efficient. 

In this light, it is recommended that:

  • The state undertakes decentralisation of educational decision-making in a planned and consistent manner with the view to encourage local and community initiatives and cultivate stakeholder participation.
  • The state adopts facilitative principle-based regulations instead of rule-based. It would make the regulatory ecosystem adaptable and responsive to changes, harnesses local initiatives and strike an appropriate balance between autonomy and accountability
  • For this, the state should set out a dedicated plan of action with capacity-building both at the level of institutions as well as personnel implementing the policy vision.

Submissions to the MHRD on the New Education Policy

alt : New-Education-Policy_MHRD-Comments

 

Submissions on amending the Hazardous Chemicals Rules, 1989 and the Chemical Accidents Rules, 1996

The Ministry of Environment, Forest and Climate Change recently invited comments from the public on amending the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 and the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996.

Vidhi submitted a short set of comments focusing on the need to harmonise the Indian regulatory framework with the United Nations Globally Harmonised System of Classification and Labelling of Chemicals. The comments highlight the need for more specific criteria for classifying chemicals, more detailed labelling requirements and safety data sheets, differentiating responsibilities across different users' groups of chemicals, and conducting periodic reviews of the risks presented by hazardous substances. 

Submissions on the Hazardous Chemicals Rules and Chemical Accidents Rules

alt : Comments-on-Hazardous-Chemicals-and-Chemical-Accidents-Rules

Submissions to the Law Commission on regulation of the legal profession in India

The Supreme Court of India, in its judgment in Mahipal Singh Rana v. State of UP, directed the Law Commission of India to review and make recommendations  for enhancing the regulatory framework for the legal profession in India. To this effect, the Law Commission of India issued a notice seeking comments on the regulation of the legal profession, from the public as well as the concerned stakeholders. 

The Judicial Reforms' Initiative of Vidhi has prepared a paper, identifying the broad areas warranting a regulatory overhaul, and proposing suggestions for enacting and implementing these legislative and institutional reforms. 

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