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.
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
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.
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.
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.
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.
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.
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.
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 time taken for 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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.