Public Law

A Proposal To Reform The University Grants Commission

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The purpose of this vision document is to consider how a new regulator to replace the

University Grants Commission (“UGC”) should be structured. This document is neither a

holistic vision for higher education in India, nor does it attempt to take sides on the myriad

contentious issues that need to be addressed in the higher education sector. Rather, its aim is

more modest — it is a vision for what a pan-India regulator should look like if the higher

education sector in India is to truly flourish.

Click here to download the full report.

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

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. 

Download the Manual on Plain Language Drafting

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. 

Download the full report on Parliamentary Productivity Index: Measuring Disruptions in the Indian Parliament

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.

Download the submissions on the Transgender Bill

Disruptions in the Indian Parliament

With the beginning of the Monsoon Session of Parliament earlier today, the Vidhi Centre for Legal Policy is pleased to release its Report on Disruptions in the Indian Parliament.

In recent years, the proceedings in the Indian Parliament have come to be largely characterised as unproductive, in view of ceaseless disruptions by various members of Parliament. While the expression of dissent within the confines of parliamentary etiquette is a legitimate form of protest, the manner in which it currently manifests itself in Parliament, is far from acceptable. The natural consequence of such behaviour is twofold - first, taxpayers’ money gets wasted over a non-functioning Parliament; second, the legislative paralysis stultifies the overall governance in the country.

This Report hopes to make two key contributions— first, to identify the causes for disruptions by closely analysing the proceedings in both Houses of Parliament for two distinct Sessions, namely the Winter Session of 2013-2014 and the Monsoon Session of 2015; second, to make the argument that the nature of Parliament has changed from being the apex legislative body in India to a forum for grandstanding on matters of public importance. By grounding its conclusions on empirical research and comparative experiences, this Report is an effort to invite wider public engagement on the conceptualising of legitimate dissent in a parliamentary democracy.

The Report is divided into two parts. The first part comprises the observations and analysis of two Sessions of Parliament, and can be accessed here. The second part, which is in the form of an annexure to the Report, summarises the day to day proceedings of the two Sessions of Parliament that have been analysed in the first part, and can be accessed here

Download the full report on Disruptions in the Indian Parliament

Submissions to the High-Level Committee on Minimum Alternate Tax

The High Level Committee headed by Justice (Retd) AP Shah was set up by the Central Government to examine the issue of whether "Minimum Alternate Tax" could be imposed upon Foreign Institutional Investors/Foreign Portfolio Investors (FIIs) for transactions prior to 01st April, 2015. 

In order to assist the HLC on the main legal issues in this matter, Vidhi sent in its submissions to the HLC and presented its views as well. Subsequently, the HLC also sought our views on two topics related to to the issue, specifically concerning the interpretation and effect of the amendment to the Income Tax Act, 1961 in 2015. 

In our submissions, we have taken the view that the MAT cannot be imposed on FIIs as this would be contrary to the legislative history behind the MAT, the provisions of the Double Taxation Avoidance Agreements India is bound by and also established judicial precedent. We have also distinguished those cases which have taken the view that MAT can be imposed on FIIs, and pointed out the flawed basis on which they have been rendered. 

In our supplementary submissions, we have also interpreted the scope of the term "place of business" and examined the effect of the introduction of the amendment to Section 115JB of the Income Tax Act, 1961 by Finance Act, 2015.  In our view, the position of law on these issues only fortify our earlier conclusion that the imposition of MAT on FIIs prior to 1st April, 2015 would not be permissible under Indian law.

First set of submissions

Supplementary submissions