the PRS Blog

The Medical Council of India (MCI) has seen a few major controversies over the past decade. In the latest incident, MCI President, Dr. Ketan Desai was arrested by the CBI on charges of accepting a bribe for granting recognition to Gyan Sagar Medical College in Punjab.

Following this incident, the central government promulgated an ordinance dissolving the MCI and replacing it with a centrally nominated seven member board. The ordinance requires MCI to be re-constituted within one year of its dissolution in accordance with the provisions of the original Act.

Background

The Medical Council of India was first established in 1934 under the Indian Medical Council Act, 1933. This Act was repealed and replaced with a new Act in 1956. Under the 1956 Act, the objectives of MCI include:

• Maintenance of standards in medical education through curriculum guidelines, inspections and permissions to start colleges, courses or increasing number of seats
• Recognition of medical qualifications
• Registration of doctors and maintenance of the All India Medical Register
• Regulation of the medical profession by prescribing a code of conduct and taking action against erring doctors

Over the years, several committees, the most recent being the National Knowledge Commission (NKC) and the Yashpal Committee, have commented on the need for reforms in medical regulation in the country.

The Ministry of Health and Family Welfare (MoH&FW) has recently released a draft of the National Council for Human Resources in Health (NCHRH) Bill for public feedback. (See http://mohfw.nic.in/nchrc-health.htm)

Key issues in Medical Regulation

Oversight

Currently, separate regulatory bodies oversee the different healthcare disciplines. These include the Medical Council of India, the Indian Nursing Council, the Dental Council of India, the Rehabilitation Council of India and the Pharmacy Council of India. Each Council regulates both education and professional practice within its domain.

The draft NCHRH Bill proposes to create an overarching body to subsume these councils into a single structure. This new body, christened the National Council for Human Resources in Health (NCHRH) is expected to encourage cross connectivity across these different health-care disciplines.

Role of Councils

Both the NKC and the Yashpal Committee make a case for separating regulation of medical education from that of profession. It is recommended that the current councils be divested of their education responsibilities and that these work solely towards regulation of professionals – prescribing a code of ethics, ensuring compliance, and facilitating continued medical education.

In addition, it has been recommended that a national exit level examination be conducted. This exit examination should then serve the purpose of ‘occupational licensing’, unlike the prevalent registration system that automatically grants practice rights to graduating professionals. In effect, it is envisaged that the system be reconfigured on the lines of the Institute of Chartered Accountants, wherein the council restricts itself to regulating the profession, but has an indirect say in education through its requirements on the exit examination. A common national examination is also expected to ensure uniformity in quality across the country.

Both committees also recommend enlisting independent accrediting agencies for periodically evaluating medical colleges on pre-defined criteria and making this information available to the public (including students). This is expected to bring more transparency into the system.

Supervision of education – HRD vs. H&FW

The Ministry of Human Resources and Development (MHRD) is proposing a National Council for Higher Education and Research (NCHER) to regulate all university education. However, MoH&FW is of the opinion that Medical Education is a specialized field and needs focused attention, and hence should be regulated separately. However, it is worth noting that both the NKC and the Yashpal Committee recommend transferring education overseeing responsibilities to the NCHER.

Internationally, different models exist across countries. In the US, the Higher Education Act, 1965 had transferred all education responsibilities to the Department of Education. In the UK, both medical education and profession continue to be regulated by the General Medical Council (the MCI counterpart), which is different from the regulator for Higher Education.

Composition of Councils

In 2007-08, MCI, when fully constituted, was a 129 member body. The Ministry in its draft NCHRH Bill makes a case for reducing this size. The argument advanced is that such a large size makes the council unwieldy in character and hence constrains reform.

In 2007-08, 71% of the members in the committee were elected. These represented universities and doctors registered across the country. However, the Standing Committee on H&FW report (2006) points out that delays in conducting elections usually leads to several vacancies in this category, thereby reducing the actual percentage of elected members. MCI’s 2007-08 annual report mentions that at the time of publishing the report, 29 seats (32% of elected category) were vacant due to ‘various reasons like expiry of term, non-election of a member, non-existence of medical faculty of certain Universities’.

In November 2001, the Delhi High Court set aside the election of Dr. Ketan Desai as President of the MCI, stating that he had been elected under a ‘flawed constitution’. The central government had failed to ensure timely conduct of elections to the MCI. As a result, a number of seats were lying vacant. The Court ordered that the MCI be reconstituted at the earliest and appointed an administrator to oversee the functioning of the MCI until this was done.

Several countries like the UK are amending their laws to make council membership more broad-based by including ‘lay-members’/ non-doctors. The General Medical Council in the UK was recently reconstituted and it now comprises of 24 members – 12 ‘lay’ and 12 medical members. (See http://www.gmc-uk.org/about/council.asp)

Way ahead

According to latest news reports, the MoH&FW is currently revising the draft Bill. Let’s wait and see how the actual legislation shapes up.

Watch this space for further updates!

The draft Direct Taxes Code Bill seeks to consolidate and amend the law relating to all direct taxes and will replace the Income Tax Act, 1961.  The draft Bill, along with a discussion paper, was released for public comments in August 2009.[1] Following inputs received, the government proposed revisions to the draft Bill in June 2010.

The table below summarises these revisions.  The government has not released the changes proposed in the form of a revised draft bill however, but as a new discussion paper.  The note is based on this discussion paper.[2]

The Code had proposed a number changes in the current direct tax regime, such as a minimum alternate tax (MAT) on companies’ assets (currently imposed on book profits), and the taxation of certain types of personal savings at the time they are withdrawn by an investor.  Under the new amendments, some of these changes, such as MAT, have been reversed.  Personal savings in specified instruments (such as a public provident fund) will now continue to remain tax-free at all times.  The tax deduction on home loan interest payments, which was done away with by the Code, has now been restored.

However, the discussion paper has not specified whether certain other changes proposed by the Code (such as a broadening of personal income tax slabs), will continue to apply.

Issue	Income Tax Act, 1961	Draft Direct Taxes Code (August 09)	Revisions Proposed (June 2010)
Minimum Alternate Tax (MAT)	MAT currently imposed at 18% of profits declared by companies to shareholders.	To be imposed on assets rather than profits of companies.  Tax rate proposed at 2% (0.25% for banks)	MAT to be imposed on book profit as is the case currently.  Rate not specified.
Personal Saving / retirement benefits	Certain personal savings, such as public provident funds, are not taxed at all.	Such savings to be taxed at the time of withdrawal by the investor.	Such savings to remain tax-exempt at all stages, as is the case currently.
Income from House Property	Taxable rent is higher of actual rent or ‘reasonable’ rent set by municipality(less specified deductions). Rent is nil for one self-occupied property.	Taxable rent is higher of actual rent or 6% of cost /value set by municipality (less specified deductions). Rent is nil for one self-occupied property.	Taxable rent is no longer presumed to be 6% in case of non-let out property. Tax deductions allowed on interest on loans taken to fund such property.
Interest on Home loans	Interest on home loans is tax deductible	Tax deductions on home loan interest not allowed.	Tax deductions for interest on loans allowed, as is currently the case.
Capital Gains	Long term and short term gains taxed at different rates.	Distinction between long and short term capital gains removed and taxed at the applicable rate; Securities Transaction Tax done away with.	Equity shares/mutual funds held for more than a year to be taxed at an applicable rate, after deduction of specified percentage of capital gains. No deductions allowed for investment assets held for less than a year. Securities Transaction tax to be ‘calibrated’ based on new regime. Income on securities trading of FIIs to be classified as capital gains and not business income.
Non-profit Organisations	Applies to organizations set up for ‘charitable purposes’. Taxed (at 15% of surplus) only if expenditure is less than 85% of income.	To apply to organizations carrying on ‘permitted welfare activities’. To be taxed at 15% of  income which remains unspent at the end of the year.  This surplus is to be calculated on the basis of cash accounting principles.	Definition of ‘charitable purpose’ to be retained, as is the case currently. Exemption limit to be given and surplus in excess of this will be taxed.  Up to 15% of surplus / 10% of gross receipts can be carried forward; to be used within 3 years.
Units in Special Economic Zones	Tax breaks allowed for developers of Special Economic Zones and units in such zones.	Tax breaks to be done away with; developers currently availing of such benefits allowed to enjoy benefits for the term promised (‘grandfathering’).	Grandfathering of exemptions allowed for units in SEZs as well as developers.
Non-resident Companies	Companies are residents if they are Indian companies or are controlled and managed wholly out of India.	Companies are resident if their place of control and management is situated wholly or partly in India, at any time in the year.  The Bill does not define ‘partly’	Companies are resident if ‘place of effective management’ is in India i.e. place where board make their decisions/ where officers or executives perform their functions.
Double Taxation Avoidance Agreements	In case of conflict between provisions of the Act, and those in a tax agreement with another country, provisions which are more beneficial to the taxpayer shall apply	The provision which comes into force at a later date shall prevail.  Thus provisions of the Code would override those of existing tax agreements.	Provisions which more beneficial shall apply, as is the case currently.  However, tax agreements will not prevail if anti-avoidance rule is used, or in case of certain provisions which apply to foreign companies.
General Anti-Avoidance Rule	No provision	Commissioner of Income Tax can declare any arrangement by a taxpayer as ‘impermissible’, if in his judgement, its main purpose was to have obtained a tax benefit.	CBDT to issue guidelines as to when GAAR can be invoked; GAAR to be invoked only in cases of tax avoidance beyond a specified limit; disputes can be taken to Dispute Resolution Panel.
Wealth Tax	Charged at 1% of net wealth above Rs 15 lakh	To be charged at 0.25% on net wealth above Rs 50 crore; scope of taxable wealth widened to cover financial assets.	Wealth tax to be levied ‘broadly on same lines’ as Wealth Tax Act, 1957. Specified unproductive assets to be subject to wealth tax; nonprofit organizations to be exempt.  Tax rate and exemption limit not specified.
Source: Income Tax Act, 1961, Draft Direct Taxes Code Bill (August 2009), New Discussion Paper (June 2010), PRS

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[1] See PRS Legislative Brief on Draft Direct Taxes Code (version of August 2009) at  http://prsindia.org/index.php?name=Sections&id=6

[2] Available at http://finmin.nic.in/Dtcode/index.html

The simple answer is yes.

Under the Copyright Act, 1957, the government, and the government alone, can print its laws and issue copies of them.  If, for instance, a person, takes a copy of an Act, and puts it up on their website for others to download, it’s technically a violation of copyright.

The only way any person can do so, without infringing copyright, is to ‘value-add’ to the text of the Act, by say, adding their own commentary or notes. But simply reproducing the entire text of the Act, without comment, is an infringement of the copyright.

Section 52 (1)(q) of the copyright Act, which covers ‘fair use’ of a copyrighted work says the following:

52 (1) The following acts shall not constitute an infringement of copyright, namely:

(q) the reproduction or publication of-

(i) any matter which has been published in any Official Gazette except an Act of a Legislature;

(ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;

(iii) the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government;

(iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

So the text of an Act is copyrighted, but the rules produced under it, and published in the Gazette are not.

This is odd, to put it politely. Why should the text of a law, one of the basic building blocks of  a modern state, not be freely available to anyone, without cost?

(Even if you can make an argument that laws should be covered by copyright, shouldnt that copyright rest with Parliament, which ‘creates’ laws, rather than the government?)

The Parliament Standing Committee on Human Resource Development is currently studying the Copyright (Amendment) Bill, 2010, which has already achieved a certain amount of fame, for the changes it makes to the rights of lyricists and music composers.  But perhaps the Committee should also consider recommending an amendment to 52(1) of the Copyright Act, allowing not just laws, but all works funded by the government, and by extension the taxpayer, to be freely available to all.

Indian Express published an article by PRS on the proposed Rules to disallow participation by political parties in urban local bodies (such as municipalities).

Click here for the article

The Civil Damage for Nuclear Liability Bill, 2010 has been criticised on many grounds (Also click here), including (a) capping liability for the operator, (b) fixing a low cap on the amount of liability of the operator, and (c) making the operator solely liable.  We summarise the main principles of civil nuclear liability mentioned in IAEA’s Handbook on Nuclear Law:

Strict Liability of the Operator: The operator is held liable regardless of fault.  Those claiming compensation do not need to prove negligence or any other type of fault on the part of the operator.  The operator is liable merely by virtue of the fact that damage has been caused.

Legal channeling of liability on the operator: “The operator of a nuclear installation is exclusively liable for nuclear damage. No other person may be held liable, and the operator cannot be held liable under other legal provisions (e.g. tort law)…This concept is a feature of nuclear liability law unmatched in other fields of law.”  The reason for this has been quoted in the Handbook as:

“…Firstly, it is desirable to avoid difficult and lengthy questions of complicated legal cross-actions to establish in individual cases who is legally liable. Secondly, such channelling obviates the necessity for all those who might be associated with construction or operation of a nuclear installation other than the operator himself to take out insurance also, and thus allows a concentration of the insurance capacity available.”

Limiting the amount of liability: “Limitation of liability in amount is clearly an advantage for the operator.  Legislators feel that unlimited liability, or very high liability amounts, would discourage people from engaging in nuclear related activities. Operators should not be exposed to financial burdens that could entail immediate bankruptcy….Whatever figure is established by the legislator will seem to be arbitrary, but, in the event of a nuclear catastrophe, the State will inevitably step in and pay additional compensation. Civil law is not designed to cope with catastrophes; these require special measures.”

Limitation of liability in time: “In all legal systems there is a time limit for the submission of claims. In many States the normal time limit in general tort law is 30 years. Claims for compensation for nuclear damage must be submitted within 30 years in the event of personal injury and within 10 years in the event of other damage. The 30 year period in the event of personal injury is due to the fact that radiation damage may be latent for a long time; other damage should be evident within the 10 year period.”

Insurance coverage: “The nuclear liability conventions require that the operator maintain insurance or provide other financial security covering its liability for nuclear damage in such amount, of such type and in such terms as the Installation State specifies….This ensures that the liability amount of the operator is always covered by an equal amount of money. The congruence principle is to the advantage both of the victims of a nuclear incident and of the operator. The victims have the assurance that their claims are financially covered, and the operator has funds available for compensation and does not need to convert assets into cash.

Our Constitution provides protection against laws imposing criminal liability for actions committed prior to the enactment of the law. Article 20 (1) under the Part III (Fundamental Rights), reads:

20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Thus, the maximum penalty that can be imposed on an offender cannot exceed those specified by the laws at the time. In the context of the Bhopal Gas tragedy in 1984, the Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such incidents. The CBI, acting on behalf of the victims, filed charges against the accused under section 304 of the IPC (See Note 1). Section 304 deals with punishment for culpable homicide and requires intention of causing death.

By a judgment dated September 13, 1996, the Supreme Court held that there was no material to show that “any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being.” The Supreme Court thus directed that the charges be re-framed under section 304A of the IPC (See Note 2). Section 304A deals with causing death by negligence and prescribes a maximum punishment of two years along with a fine.

Consequently, the criminal liability of the accused lay outlined by section 304A of the IPC and they were tried accordingly. Civil liability, on the other hand, was adjudged by the Courts and allocated to the victims by way of monetary compensation.

Soon after the Bhopal Gas tragedy, the Government proposed and passed a series of laws regulating the environment, prescribing safeguards and specifying penalties. These laws, among other things, filled the legislative lacunae that existed at the time of the incident.

Given the current provisions (See Note 3), a Bhopal like incident will be tried in the National Green Tribunal (once operationalized) and most likely, under the provisions of the the Environment (Protection) Act, 1986. The criminal liability provisions of the Act (See Note 4) prescribe a maximum penalty of five years along with a fine of one lakh rupees. Further, if an offence is committed by a company, every person directly in charge and responsible will be deemed guilty, unless he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offence.

The civil liability will continue to be adjudged by the Courts and in proportion to the extent of damage unless specified separately by an Act of Parliament.

Notes

1) IPC, Section 304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

2) IPC, Section 304A. Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

3) Major laws passed since 1984:

1986 – The Environment (Protection) Act authorized the central government to take measures to protect and improve environmental quality, set standards and inspect industrial units. It also laid down penalties for contravention of its provisions.

1991 – The Public Liability Insurance Act provided for public liability – insurance for the purpose of providing immediate relief to the persons affected by an accident while handling hazardous substances.

1997 – The National Environment Appellate Authority Act established to an appellate authority to hear appeals with respect to restriction of areas in which any industries, operations or processes are disallowed, subject to safeguards under the Environment (Protection) Act, 1986.

2009 – The National Green Tribunal Act, yet to be notified, provides for the establishment of a tribunal for expeditious disposal of cases relating to environmental protection and for giving relief and compensation for damages to persons and property. This Act also repeals the National Environment Appellate Authority Act, 1997.

4) Criminal liability provisions of the Environment Protection Act, 1986

Section 15. Penalty for contravention of the provisions of the Act

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

Section 16. Offences by Companies

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

The Civil Liability for Nuclear Damage Bill, 2010 was introduced in the Lok Sabha on may 7, 2010.  The following is PRS’s summary of the Bill (The Bill summary and the Bill along with related media articles can also be accessed on the PRS Website):

The main features of the Bill are:

a. It defines nuclear incidents and nuclear damage, nuclear fuel, material and nuclear installations, and also operators of nuclear installations.

b. It lays down who will be liable for nuclear damage, and the financial limit of the liability for a nuclear incident.

c. It creates authorities who will assess claims and distribute compensation in cases of nuclear damage. It also specifies who can claim compensation for nuclear damage, and how compensation can be claimed and distributed.

d. It specifies penalties for not complying with the provisions of the Bill, or any directions issued under it.

Nuclear damage means (a) loss of life or injury to a person, or loss of, or damage to property caused by a nuclear incident (b) economic loss arising out of such damage to person or property, (c) costs of measures to repair the damage caused to the environment, and (d) costs of preventive measures.

The Atomic Energy Regulatory Board has to notify a nuclear incident within 15 days from the date of a nuclear incident occurring.

The operator of a nuclear installation will be liable for nuclear damage caused by a nuclear incident in that installation or if he is in charge of nuclear material. If more than one operator is liable for nuclear damage, all operators shall be jointly, and also individually liable to pay compensation for the damage. The Bill also provides certain exceptions to an operator’s liability.

The operator has a right of recourse against the supplier and other individuals responsible for the damage under certain conditions.

The Bill states that the total liability for a nuclear incident shall not exceed 300 million Special Drawing Rights (Approximately Rs 2100 crore at current exchange rates).

Within this amount, the liability of the operator shall be Rs 500 crore. If the liability exceeds Rs 500 crore, the central government shall be liable for the amount exceeding Rs 500 crore (up to SDR 300 million). If damage is caused in a nuclear installation owned by the central government, the government will be solely liable.

The Bill allows the central government to create two authorities by notification:

a. Claims Commissioner: The Claims Commissioner will have certain powers of a civil court. Once a nuclear incident is notified, the Commissioner will invite applications for claiming compensation.

b. Nuclear Damage Claims Commission: If the central government thinks that with regard to a nuclear incident (a) the amount of compensation may exceed Rs 500 crore, or (b) it is necessary that claims will be heard by the Commission and not the Claims Commissioner, or (c) that it is in public interest, it can establish a Nuclear Damage Claims Commission. The Commission shall have the same powers as that of a Claims Commissioner.

An application for claiming compensation can be made by (a) person sustaining the injury, (b) owner of the damaged property, (c) legal representative of a deceased person, or (d) an authorised agent. An application can be made within three years from the date of the person having knowledge of nuclear damage. This right to make an application is however exhausted after a period of ten years from the date of the notification of the nuclear incident.

One of the main tasks of the Parliament is to frame laws through debate and discussion on the floor of the House.  However, there have been repeated instances where Bills introduced by the government have been passed without substantive discussion (For news reports, click here and here).  Even where Bills are debated extensively, occasions where the government introduces changes in the Bill directly as a response to Parliamentary debate are hard to find.

One recent exception is the list of amendments introduced to the National Green Tribunal Bill, 2010 by the Minister for Environment and Forests directly in response to issues raised on the floor of the House.

The Bill

The National Green Tribunal Bill, 2009 aims to set up specialised environmental courts in the country.  It will hear initial complaints as well as appeals from decisions of authorities under various environmental laws.  The Tribunal shall consist of both judicial and expert members.  Expert members have to possess technical qualifications and expertise, and also practical experience.

The Tribunal shall hear only ‘substantial question relating to the environment’.  Substantial questions are those which (a) affect the community at large, and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.

PRS in its analysis of the original (unamended) Bill, had raised the following issues (for detailed analysis, click here) :

• The criteria to determine what a ‘substantial question related to the
  environment’ are open to interpretation.
• The Bill may reduce access to justice in environmental matters by taking away the jurisdiction of civil courts.  All cases under laws mentioned in the Bill will now be handled by the Tribunal which will initially have benches at only five locations.
• The Bill does not give the Tribunal jurisdiction over some laws related
  to the environment.
• The qualifications of judicial members of the Tribunal are similar to that of the existing National Environment Appellate Authority (NEAA).  The government has been unable to find qualified members for the NEAA for the past three years.  The Green Tribunal Bill gives an explicit option to the government to appoint members with administrative experience as expert members.
• The Bill does not specify the minimum number of members the Tribunal and also does not mention of the composition of the Selection Committee for selecting members.

The Debate

In the debate on the Bill in the Lok Sabha on April 21, 2010 a number of MPs raised substantive issues with respect to the Bill.  Some of the issues raised were (From the news article quoted above):

1. The Bill fell short on parameters of “scope, efficiency, and access to justice”.

2. Setting up five benches while barring the jurisdiction of courts will “create huge distance for the poor community members and tribals to seek justice”.

3. Offenses under the Wildlife Protection Act and the Wildlife Protection Act will not be heard by the Tribunal.

4. “Section 15 puts an embargo against [persons] other than retired Judge of Supreme Court or Chief Justices of High Court. The other clause puts 15 years of administrative experience, which would open the path for packing the Tribunal with bureaucrats of the kind who did not enforce the environment related laws in their time in service.”

The Minister acknowledged the contribution of the members by stating that: “The members have made important suggestions. Even though their exact demands may not be part of the official amendments moved by the government… but I am open to their suggestions…I will remove all objectionable clauses or sections in the proposed law and keep the window of discussion open.”

The Minister’s response

In response to these issues, the Minister Mr. Jairam Ramesh introduced 10 amendments to the Bill on April 30, 2010.  Though not all the issues raised were addressed, a number of changes were made.  In addition, the Minister also assured the House that issues regarding access would be addressed by the government by following a “circuit” approach for the benches of the Tribunal i.e. the benches would travel around the area within their jurisdiction to hear complaints. (To read the response, click here, page 15250)

Some of the main amendments are:

1.  Now any aggrieved person can can approach the Tribunal.  Earlier limited access was provided.

2. The whole Act will be operational by notification at the same time.  Different provisions will not be enforced separately at different points of time.

3. There is a procedure for direct appeal to the Supreme Court from the judgement of the Tribunal.

4. The number of expert and judicial members is clearly specified.

In addition, the Minister also assured that the Selection Committee for picking the members of the Tribunal will be transparent and will ensure that members are not “a parking place for retired civil servants”.

The shortage of skilled man-power is a cause for concern in most sectors in India.  Experts acknowledge that the present higher education system in India is not equipped to address this problem without some changes in the basic structure.  Official records show that the gross enrollment ratio in higher education is only 11 per cent while the National Knowledge Commission says only seven per cent of the population between the age group of 18-24 enters higher education.  Even those who have access are not ensured of quality.  Despite having over 300 universities, not a single Indian university is listed in the top 100 universities of the world.

Present Regulatory framework

The present system of higher education is governed by the University Grants Commission (UGC), which is the apex body responsible for coordination, determination and maintenance of standards, and release of grants.   Various professional councils are responsible for recognition of courses, promotion of professional institutions and providing grants to undergraduate programmes.  Some of the prominent councils include All India Council for Technical Education (AICTE), Medical Council of India (MCI) and the Bar Council of India (BCI).  The Central Advisory Board of Education coordinates between the centre and the states.

Universities in India can be established by an Act of Parliament or state legislatures such as Delhi University, Calcutta University and Himachal Pradesh University.  Both government-aided and unaided colleges are affiliated with a university.  The central government can also declare an institution to be a deemed university based on recommendation of the University Grants Commission.  There are about 130 deemed universities and includes universities such as Indian Institute of Foreign Trade and Birla Institute of Technology.  Such universities are allowed to set their own syllabus, admission criteria and fees.  Some prominent institutions are also classified as institutions of national importance.

Reforms in Higher Education

There have been calls to revamp the regulatory structure, make efforts to attract talented faculty, and increase spending on education from about 4% of the Gross Domestic Product (GDP) to about 6%. Presently, the allocation for higher education is at a measly 0.7% of GDP.

From time to time government appointed various expert bodies to suggest reforms in the education sector.  The two most recent recommendations were made by the National Knowledge Commission (NKC) formed in 2005 under the chairmanship of Mr Sam Pitroda and the Committee to Advise on Renovation and Rejuvenation of Higher Education, formed in 2008 under the chairmanship of Shri Yashpal.

Key Recommendations of NKC	Key Recommendations of Yashpal Committee
Presently, India has about 350 universities.  Around 1,500 universities should be opened nationwide so that India is able to attain a gross enrolment ratio of at least 15% by 2015. Existing universities should be reformed through revision of curricula at least once in three years, supplementing annual examination with internal assessment, transition to a course credit system, attract talented faculty by improving working conditions and incentives. A Central Board of Undergraduate Education should be established, along with State Boards of Undergraduate Education, which would set curricula and conduct examinations for undergraduate colleges that choose to be affiliated with them. An Independent Regulatory Authority for Higher Education (IRAHE) should be formed.  IRAHE should be independent of all stakeholders and be established by an Act of Parliament. The UGC would focus on disbursement of grants and maintaining public institutions of higher learning.  The regulatory function of the AICTE, MCI, and BCI would be performed by IRAHE. The IRAHE shall have the power to set and monitor standards, accord degree-granting power to institutions of higher education, license accreditation agencies, and settle disputes.  Same norms shall apply to all institutions irrespective of whether they are public or private, domestic or international. Quality of education can be enhanced by stringent information disclosure norms, evaluation of courses by teachers and students, rethinking the issue of salary differentials within and between universities to retain talented faculty, formulating policies for entry of foreign institutions in India and the promotion of Indian institutions abroad.	The academic functions of all the professional bodies (such as UGC, AICTE, MCI, and BCI) should be subsumed under an apex body for higher education called the National Commission for Higher Education and Research (NCHER), formed through Constitutional amendment. The professional bodies should be divested of their academic functions.  They should only be looking after the fitness of the people who wish to practice in their respective fields by conducting regular qualifying examination. Establish a National Education Tribunal with powers to adjudicate on disputes among stake-holders within institutions and between institutions so as to reduce litigation in courts involving universities and higher education institutions. Curricular reform should be the top-most priority of the NCHER.  It should be based on the principles of mobility within a full range of curricular areas. Vocational education sector should be brought within the purview of universities. NCHER should promote research in the university system through the creation of a National Research Foundation. Practice of according status of deemed university be stopped till the NCHER takes a considered view on it. NCHER should identify the best 1500 colleges across India and upgrade them as universities. A national testing scheme for admission to the universities on the pattern of the GRE to be evolved which would be open to all the aspirants of University education, to be held more than once a year. Quantum of central financial support to state-funded universities should be enhanced substantially on an incentive pattern.
Sources: The Report to the Nation, 2006-09, NKC; Yashpal Committee Report, 2009; PRS

The Draft NCHER Bill, 2010

In response to the reports, the government drafted a Bill on higher education and put it in the public domain.  The draft National Commission for Higher Education and Research Bill, 2010 seeks to establish the National Commission for Higher Education and Research whose members shall be appointed by the President on the recommendation of the selection committee (include Prime Minister, Leader of the Opposition in Lok Sabha, Speaker).

The Commission shall take measures to promote autonomy of higher education and for facilitating access, inclusion and opportunities to all.  It may specify norms for grant of authorisation to a university, develop a national curriculum framework, specify requirement of academic quality for awarding a degree, specify minimum eligibility conditions for appointment of Vice Chancellors, maintain a national registry, and encourage universities to become self regulatory.  Vice Chancellors shall be appointed on the recommendation of a collegium of eminent personalities.  The national registry shall be maintained with the names of persons eligible for appointment as Vice Chancellor or head of institution of national importance.  Any person can appeal a decision of the Commission to the National Educational Tribunal. (For opinions by some experts on the Bill, click here and here.)

Other Bills that are in the pipeline include The Foreign Educational Institutions (Regulation of Entry and Operation) Bill, 2010; the Central Educational Institutions (Reservation in Admission) (Amendment) Bill, 2010; and the Innovation Universities Bill, 2010.

The Seeds Bill was introduced in 2004, and is listed for discussion in Rajya Sabha this week. We had flagged some issues in our Legislative Brief. The Standing Committee had also made some recommendations (summary available here). These included the following: Farmers selling seeds had to meet the same quality requirements (on physical and genetic purity, minimum level of germination etc.) as seed companies. Second, seed inspectors had the power to enter and search without a warrant, unlike the requirements in the Criminal Procedure Code for the police. Third, the compensation mechanism for farmers was through consumer courts; some other Acts provide separate bodies to settle similar issues.

The government has circulated a list of official amendments. These address most of the issues (tabulated here).

One significant issue has not been addressed. The financial memorandum estimates that Rs 36 lakh would be required for the implementation of the Act during 2004-05 from the Consolidated Fund of India. The amount required by state governments to establish testing laboratories and appointing seed analysts and seed inspectors has not been estimated, which implies that the successful implementation of the bill will depend on adequate provision in state budgets.

The empowered group of ministers (EGoM) met recently to review the draft food security bill. Two issues have been reported to have gained prominence in their discussions – the exact number of poor families that are likely to be beneficiaries under the Food Security Act and reforming of the targeted public distribution system.

On the issue of estimating poverty, it is reported that the Planning Commission has been asked to submit a report in three weeks on the number of  (BPL) families that are likely to be legally entitled to food under the said Act.

The Minister of Agriculture is reported to have said “It is up to them [Planning Commission] whether they base it [BPL list] on the Tendulkar Committee report or the earlier N.C. Saxena panel or the Wadhwa committee.”

The estimation of poor persons in India involves two broad steps:

(i) fixing a threshold or poverty line that establishes poverty, and

(ii) counting the number of people below this line.

Estimating these numbers is a contentious issue – ridden by debates around norms and parameters for defining poverty, methodology to estimate poverty, etc.

The Planning Commission estimates the percentage and number of BPL persons separately in rural and urban areas from a large sample survey conducted by the National Sample Survey Organization (NSSO) which operates under the Ministry of Statistics and Programme Implementation.

In addition various government social sector schemes are targeted specifically at the poor and require the government to identify BPL beneficiaries.  For this purpose the Ministry of Rural Development designs a BPL census and that is conducted by the States/UTs.  The BPL census website gives data on BPL households for 2002 based on the poverty estimates for 1999-2000, by state, district and block.

The targeted public distribution system was recently subjected to scrutiny by a Supreme Court appointed vigilance committee headed by Justice D P Wadhwa. Amongst many issues, the committee reported that “the PDS is inefficient and corrupt.  There is diversion and black-marketing of PDS food grain in large scale.  Subsidized PDS food grain does not reach the poor who desperately need the same.  These poor people never get the PDS food grain in proper quantity and quality.”

The two issues highlighted here are important to ensure that the proposed legislation on food security is not a leaky bucket in the making.   As the draft food security bill is not in the public domain it is difficult to comment on how the government is thinking on length and breadth of issues that govern giving access to food security.

There have been articles in the media on the future passage of the Women’s Reservation Bill stating that the Bill will have to be ratified by state legislatures before it is signed into law by the President.  Our analysis indicates that ratification by state legislatures is not required.  We state the reasons below:

This Bill amends the Constitution.  It (a) amends Article 239AA,  Article 331, and Article 333, and  (b) inserts Article 330A, Article 332A, and Article 334A.  In doing so the Bill:

• Seeks to reserve one-third of all seats for women in the Lok Sabha and the state legislative assemblies;
• One third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women of those groups in the Lok Sabha and the legislative assemblies;
• Reserved seats may be allotted by rotation to different constituencies.

Article 368 regulates the procedure for amending the Constitution.  It states that the ratification of the state legislatures to a constitutional amendment is required in the following cases:

a. If there is a change in the provisions regarding elections to the post of the President of India.

b. If there is a change in the extent of the executive power of the centre or the state governments.

c. If there is any change in the provisions regarding the Union judiciary or the High Courts.

d. If the distribution of legislative powers between the centre and the states is affected.

e. If any of the Lists in the Seventh Schedule is affected.

f. If the representation of the states in the Rajya Sabha is changed.

g. Lastly, if Article 368 itself is amended.

None of these provisions are attracted in the case of the Women’s Reservation Bill.  The Parliament recently extended the reservation of seats for SCs, STs and Anglo-Indians in Lok Sabha and Legislative Assemblies by another ten years.  Article 334 was amended to state that such reservation “will cease to have effect on the expiration of a period of seventy years from the commencement of the Constitution.”  The 109th Amendment Bill was passed by both Houses of Parliament and did not require the ratification of the states before being signed into law by the President.  It follows that if Bills amending provisions for reserving seats for SCs and STs don’t need ratification by state legislatures, a bill reserving seats for women does not need ratification either.

Thus Article 368 very clearly lays down situations in which state legislatures have to ratify a piece of legislation before it can receive the assent of the President.

Speaker Meira Kumar has urged political parties to arrive at a consensus on the women’s reservation bill.  The 2008 Bill has the following main features. 

1. It reserves one-third of all seats in Lok Sabha and Legislative Assemblies within each state for women. 

2. There is quota-within-quota for SCs, STs and Anglo-Indians. 

3. The reserved seats will be rotated after each general elections – thus after a cycle of three elections, all constituencies would have been reserved once.  This reservation will be operational for 15 years.

 This Bill has had a chequered history.  A similar Bill was introduced in 1996, 1998 and 1999 – all of which lapsed after the dissolution of the respective Lok Sabhas.  A Joint Parliamentary Committee chaired by Geeta Mukherjee examined the 1996 Bill and made seven recommendations.  Five of these have been included in the latest 2008 Bill.  These are (i) reservation for a period of 15 years; (ii) including sub-reservation for Anglo Indians; (iii) including reservation in cases where the state has less than three seats in Lok Sabha (or less than three seats for SCs/STs); (iv) including reservation for the Delhi assembly; and (v) changing “not less than one-third” to “as nearly as may be, one-third”.

 Two of the recommendations are not incorporated in the 2008 Bill.  The first is for reserving seats in Rajya Sabha and Legislative Councils.  The second is for sub-reservation for OBC women after the Constitution extends reservation to OBCs.

The 2008 Bill was referred to the Standing Committee on Law and Justice.  This Committee failed to reach a consensus in its final report.  The Committee has recommendedthat the Bill “be passed in Parliament and put in action without further delay.  Two members of the Committee, Virender Bhatia and Shailendra Kumar (both belonging to the Samajwadi Party) dissented stating that they were not against providing reservation to women but disagreed with the way this Bill was drafted.  They had three recommendations:  (i) every political party must distribute 20% of its tickets to women; (ii) even in the current form, reservation should not exceed 20% of seats; and (iii) there should be a quota for women belonging to OBCs and minorities.

The Standing committee considered two other methods of increasing representation.  One suggestion (part of election commission recommendations) was to requite political parties to nominate women for a minimum percentage of seats.  The committee felt that parties could bypass the spirit of the law by nominating women to losing seats.  The second recommendation was to create dual member constituencies, with women filling one of the two seats from those constituencies.  The Committee believed that this move could “result in women being reduced to a subservient status, which will defeat the very purpose of the Bill”.

It is interesting to note that the Committee did not reject the two recommendations of the Geeta Mukherjee Committee that are not reflected in the Bill.  The Committee concluded that the issue of reservations to Rajya Sabha and Legislative Councils needs to be examined thoroughly as the upper Houses play an equally important role under the Constitution.  Incidentally, it is not possible to reserve seats in Rajya Sabha given the current system of elections to that house (see Appendix below).

On the issue of  reservations to OBC women, the Committee said that “all other issues may be considered at an appropriate time by Government without any further delay at the present time in the passage of the Bill”.

Though the Bill does not have a consensus – it has been opposed by SP, RJD and JD(U) – most parties have publicly expressed their support for it.  The government will likely not find it difficult to muster two-third support in each House of Parliament were the Bill be taken up for consideration and passing.  It would be interesting to see whether the Bill is brought before Parliament in the upcoming Budget Session.

Appendix: Impossibility of Reservation in Rajya Sabha

Article 80of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through single transferable vote.  This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on.  This system cannot accommodate the principle of reserving a certain number of seats for a particular group.  Currently, Rajya Sabha does not have reservation for SCs and STs.

Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system.