Legislation

Cabinet approves Bill to amend law on rape

According to a recent press release, the Cabinet has approved a proposal to introduce a Bill in Parliament to amend the Indian Penal Code, 1860 (IPC).  While the draft Bill is currently not available, its highlights are specified in the press release.  As per the press release, the Bill aims to make rape laws gender neutral.  The key features specified are:

  • Substituting the word “rape” with “sexual assault”;
  • Increasing the age of consent 16 to 18 years;
  • Excluding sexual intercourse between a married couple from the definition of rape, where the wife's consent has not been obtained and the wife is at least 16 years of age.

Present Law According to section 375 of the IPC, an allegation of rape has to satisfy the following criteria:

  • sexual intercourse between a man with a woman in the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication.
  • If the woman is below the age of 16 years, sexual intercourse is deemed to amount to rape.  Even if the woman has consented, it would be considered rape under the law.
  • There is however, an exception to this definition of rape.  Un-consented sexual intercourse between a man and his wife would not amount to rape if the wife is 16 years or older.

This definition of rape does not include use of other body parts or foreign objects by the offender upon the victim’s body.  Such offences are classified as “use of criminal force to outrage the modesty of a woman” (see here) and are punishable with two years imprisonment or fine or both.  Rape, on the other hand, is punishable with imprisonment for seven years to a life term. Proposals to amend the law on rape Through an order in 1999, the Supreme Court had directed the Law Commission to review the law on rape (Sakshi vs. Union of India).  The Law Commission had in its 172nd Report, dated March 25, 2000 made recommendations to amend the law to widen the definition of rape.  In its report, the Commission had recommended that rape be substituted by sexual assault as an offence.  Such assault included the use of any object for penetration.  It further recognised that there was an increase in the incidence of sexual assaults against boys.  The Report recommended the widening of the definition of rape to include circumstances where both men and women could be perpetrators and victims of sexual assault.[1]   Amendments to the law on the basis of these recommendations are still awaited. The High Court of Delhi has recognised the need to amend the laws on rape.  It observed that the law did not adequately safeguard victims against sexual assaults which were included by the Law Commission within the scope of rape.  It was observed that the definition should be widened to include instances of sexual assault which may not satisfy the penile-vaginal penetration required under the existing law. The 2010 draft Criminal Laws Amendment Bill, released by the Ministry of Home Affairs, attempted to redefine rape.  The draft provisions substitute the offence of rape with “sexual assault”.  Sexual assault is defined as penetration of the vagina, the anus or urethra or mouth of any woman, by a man, with (i) any part of his body; or (ii) any object manipulated by such man under the following circumstances: (a) against the will of the woman; (b) without her consent; (c) under duress; (d) consent obtained by fraud; (e) consent obtained by reason of unsoundness of mind or intoxication; and (f) when the woman is below the age of 18. Variation between proposals The existing legal provisions, the Law Commission Report, the 2010 Bill and the recent press release are similar in that they provide an exception to marital rape.  Under the law, un-consented sexual intercourse is not an offence if the wife is above a certain age.  (Under the existing law the wife has to be over 16 years’ of age and as per press release she has to be more than 18 years old.)  This is at variance with the proposal of the National Commission of Women (NCW).   An amendment to the IPC recommended by the NCW deleted the exemption granted to un-consented sex between a man and his wife if she was more than 16 years old.  It therefore criminalised marital rape. As per the press release, this exemption has been retained in the proposed Bill.  Furthermore, as per the release, while the age of consent for sexual intercourse will be increased to 18 years, for the purpose of marital sex, the age of consent would be 16 years.


[1] Review of Rape Laws, Law Commission of India, 172nd Report, paragraph 3.1.2,  "375.  Sexual Assault:  Sexual assault means - (a) penetrating  the  vagina (which term shall include the labia majora), the  anus  or  urethra  of  any person with - i)      any part of the body of another person or ii)   an object manipulated by another person except  where  such penetration is carried out for proper hygienic or medical purposes; (b) manipulating any  part  of  the  body  of  another person  so  as  to cause penetration of the vagina (which term shall include the labia  majora),  the anus or the urethra of the offender by any part of  the other person's body; (c) introducing any part of the penis of a person into the mouth of another person; (d)    engaging in cunnilingus or fellatio; or (e) continuing  sexual  assault  as defined in clauses (a) to (d) above in circumstances falling  under  any  of  the  six following descriptions: ... Exception:  Sexual intercourse by a man with his own wife, the wife not being under sixteen  years  of  age,  is  not sexual assault."

Right to Education: the story so far

In India, children between the age group of 6 and 14 years have the fundamental right to free and compulsory education.  This right is implemented through the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).  The Act is applicable to all categories of schools (government and private). According to recent media reports (see here and here), many schools (including government schools) are flouting norms laid down in the RTE Act.  Unaided schools have criticised state government over norms related to religious and linguistic status of minority schools (see here and here).  The government has also faced flak over unclear norms on neighbourhood schools and reimbursement of money to private schools (see here, here and here). Most Acts ‘delegate’ the power to make rules and regulations for operationalising the law to the executive (Ministry).   We provide an overview of the Rules notified by the state governments. The central government notified the RTE Rules 2010 on April 9, 2010, which are applicable to all schools under the central government, and in the five Union Territories without legislatures.  Most of the states have notified similar Rules with a few variations. The Rules define the limits of a neighbourhood and make it mandatory for the local authority to maintain list of children within its jurisdiction.  They also prescribe the composition of the School Management Committee to be formed in government schools.  Private schools shall reserve 25% of the seats for disadvantaged children.  These schools shall be reimbursed for either their tuition charge or the per-student expenditure in government schools, whichever is lower.  All private schools have to be recognised before they can start operation.  Recognition is contingent upon meeting the minimum standard laid down in the Act    Existing private schools have to meet the norms within three years of commencement of the Act.  If they are not compliant after three years, they shall cease to function.  Government schools under the central government have to meet only two conditions: the minimum qualification for teachers and the student-teacher ratio. For all state government schools and un-adided schools, the power to make rules is delegated to the state government.  The central government circulated Model Rules for the RTE Act to the states.  All state governments, except Goa, have notified the state RTE Rules.  Delhi and Puducherry have also notified them.  Most of the states have notified similar Rules with a few variations.  We list some of the variations. Andhra Pradesh: The break-up of the 25% quota among the various disadvantaged groups have been included in the Rules.  Scheduled Castes: 10%; Scheduled Tribes: 4%; Orphans, disabled and HIV affected: 5% and children with parents whose annual income is lower than Rs 60,000: 6%. Rajasthan: Private schools either have to be affiliated with a university or recognised by any officer authorised by the state government.     Karnataka: In addition to the minimum norms under RTE Act, private schools have to comply with the Karnataka Education Act, 1983. Gujarat: If an existing recognised school is unable to meet the infrastructure norms it may be given the option of demonstrating that it achieved certain learning outcomes, both in terms of absolute levels and as improvement from previous years. Uttar Pradesh: The government shall pay per child reimbursement to the school after it gives a list of children with their Unique Identity Number and other details. Kerala:  The local authority has to maintain a record of all the children (0-14 years) within its jurisdiction.  It shall also maintain the Unique Identity Number of every child, as and when issued by the competent authority, to monitor his enrolment, attendance and learning achievements. Haryana:  Defines textbooks, uniform and writing material.  It states that Hindi is to be the preferred medium of instruction in all schools. For using other language, permission of Director, Elementary Education Dept is required (to be given within 45 days or deemed to be granted). West Bengal: The Rules give detailed definition of the appropriate age for each class.  They require schools to be set up in a relatively noise-free and pollution-free area with adequate supply of drinking water and electricity.  Existing schools (which are already recognised or affiliated with a Board) may get the local municipal authorities to provide infrastructural support including relaxation of building rules to comply with the requirements of the Act. Additional sources

  1. PRS Brief on Right of Children to Free and Compulsory Education Bill, 2008.
  2. PRS Bill Summary on Right of Children to Free and Compulsory Education (Amendment) Bill, 2010.
  3. Accountability Initiative’s Policy Brief on 25% Reservation under the RTE.

Alternate proposal to the National Food Security Bill

According to news reports, the Prime Minister recently chaired a meeting with ministers to discuss an alternative plan (“Plan B”) for the National Food Security Bill, 2011 (hereinafter “Bill”).  The Bill is currently pending with the Standing Committee of Food, Consumer Affairs and Public Distribution.  It seeks to deliver food and nutritional security by providing specific entitlements to certain groups.  The alternative proposal aims to give greater flexibility to states and may bind the centre to a higher food subsidy burden than estimates provided in the Bill.  It suggests changes to the classification of beneficiaries and the percentage of the national population to be covered by the Bill, among others. Classification of beneficiaries The Bill classifies the population into three groups: priority, general and excluded.  Individuals in the priority and general groups would receive 7 kg and 3 kg of foodgrain per person per month respectively at subsidized prices. Plan B suggests doing away with the priority-general distinction.  It classifies the population on the basis of 2 categories: included and excluded.  Those entitled to benefits under the included category will receive a uniform entitlement of 5 kg per person per month. Coverage of population Experts have suggested that the Bill will extend entitlements to roughly 64% of the total population.  Under the Bill, the central government is responsible for determining the percentage of people in each state who will be entitled to benefits under priority and general groups. Plan B suggests extending benefits to 67% of the total population (33% excluded), up from 64% in the Bill.  The Ministry has outlined two options to figure out the number of people in each state that should be included within this 67%.  The first option envisages a uniform exclusion of 33% in each state irrespective of their poverty level.  The second option envisages exclusion of 33% of the national population, which would imply a different proportion excluded in each state depending on their level of prosperity. The Ministry has worked out a criterion to determine the proportion of the population to be included in each state.  The criterion is pegged to a monthly per capita expenditure of Rs 1,215 in rural areas and Rs 1,502 in urban areas based on the 2009-10 NSSO survey. Thus, persons spending less than Rs 40 in rural areas and Rs 50 in urban areas per day will be entitled to foodgrains under the alternative being considered now. Financial estimates Newspaper reports have indicated that the revised proposal will add Rs 7,000 to Rs 10,000 crore per year to the current food subsidy estimate of Rs 1.1 lakh crore.  According to some experts, the total cost of the Bill could range anywhere between Rs 2 lakh crore to Rs 3.5 lakh crore (see here and here).

Law prohibiting sexual offences against children sparks controversy over age of consent

The Protection of Children against Sexual Offences Act, 2012 was passed by both Houses of Parliament on May 22.  The legislation defines various types of sexual offences against children and provides penalties for such acts. According to a report commissioned by the Ministry of Women and Child Development in 2007, about 53% of the children interviewed reported some form of sexual abuse.  The law has been viewed as a welcome step by most activists since it is gender neutral (both male and female children are covered), it clearly defines the offences and includes some child friendly procedures for reporting, recording of evidence, investigation and trial of offences.  However, the issue of age of consent has generated some controversy.  Age of consent refers to the age at which a person is considered to be capable of legally giving informed consent to sexual acts with another person. Before this law was passed, the age of consent was considered to be 16 years (except if the woman was married to the accused, in which case it may be lower).  Section 375 of the Indian Penal Code, 1860 states that any sexual intercourse with a woman who is below the age of 16 years is considered to be “rape”.  The consent of the person is irrelevant. This post provides a snapshot of the key provisions of the Act, the debate surrounding the controversial provision and a comparison of the related law in other countries. Key provisions of the Act

  • The Act defines a child as any person below the age of 18 years and provides protection to all children from offences such as sexual assault, penetrative sexual assault and sexual harassment.  It also penalises a person for using a child for pornographic purposes.
  • The Act states that a person commits “sexual assault” if he touches the vagina, penis, anus or breast of a child with sexual intent without penetration.
  • The Act treats an offence as “aggravated” if it is committed by a person in a position of authority or trust such as a member of the security forces, a police officer or a public servant.
  • It specifies penalties for the offences and provides a mechanism for reporting and trial of such offences.

Debate over the age of consent After introduction, the Bill was referred to the Standing Committee on Human Resource Development.  The Committee submitted its report on December 21, 2011 (see here and here for PRS Bill Summary and  Standing Committee Summary, respectively).  Taking into account the recommendations of the Standing Committee, the Parliament decided to amend certain provisions of the Bill before passing it. The Bill stated that if a person is accused of “sexual assault” or “penetrative sexual assault” of a child between 16 and 18 years of age, it would be considered whether the consent of the child was taken by the accused.   This provision was deleted from the Bill that was passed. The Bill (as passed) states that any person below the age of 18 years shall be considered a child.  It prohibits a person from engaging in any type of sexual activity with a child.  However, the implication of this law is not clear in cases where both parties are below 18 years (see here and here for debate on the Bill in Rajya Sabha and Lok Sabha). The increase in the age of consent to 18 years sparked a debate among experts and activists. Proponents of increasing the age of consent argued that if a victim is between 16 and 18 years of age, the focus of a sexual assault case would be on proving whether he or she consented to the act or not.  The entire trial process including cross-examination of the victim would focus on the conduct of the victim rather than that of the accused (see here and here). Opponents of increasing the age of consent pointed out that since this Act criminalises any sexual activity with persons under the age of 18 years (even if consensual), the police may misuse it to harass young couples or parents may use this law to control older children’s sexual behaviour (see here and here).  International comparison In most countries, the age of consent varies between 13 and 18 years.  The table below lists the age of consent and the corresponding law in some selected countries. 

Countries

Age of consent

Law

US Varies from state to state between 16 and 18 years.  In some states, the difference in age between the two parties is taken into account.  This can vary between 2-4 years. Different state laws
UK 16 years Sexual Offences Act, 2003
Germany 14 years (16 years if the accused is a person responsible for the child’s upbringing, education or care). German Criminal Code
France 15 years French Criminal Code
Sweden 15 years (18 years if the child is the accused person’s offspring or he is responsible for upbringing of the child). Swedish Penal Code
Malaysia 16 years for both males and females. Malaysian Penal Code; Child Act 2001
China No information about consent.  Sex with a girl below 14 years is considered rape.  Sodomy of a child (male or female) below 14 years is an offence. Criminal Law of China, 1997
Canada 16 years Criminal Code of Canada
Brazil 14 years Brazilian Penal Code 2009
Australia Varies between 16 and 17 years among different states and territorial jurisdictions.  In two states, a person may engage in sexual activity with a minor if he is two years older than the child.  In such cases the child has to be at least 10 years old. Australian Criminal laws
India 18 years. Protection of Children Against Sexual Offences Act, 2012

Lapses in the process of drug approval in India

The Parliamentary Standing Committee on Health and Family Welfare tabled a Report in Parliament on May 8, 2012, on the functioning of the Central Drugs Standard Control Organization (CDSCO).  CDSCO is the agency mandated with the regulation of drugs and cosmetics in India.  The Report covers various aspects of drug regulation including organizational structure and strength of CDSCO, approval of new drugs, and banning of drugs, among others. Following the Report, the Minister of Health and Family Welfare has constituted a Committee to look into the procedure for drug regulation.  The Committee is expected to make its submissions within a period of two months. This post focuses on irregularities in the approval of new drugs by CDSCO.  It discusses the regulations relating to drug approval and the Standing Committee's observations on the working of CDSCO. Approval of new drugs Drugs are regulated by the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules, 1945 [Rules].  The CDSCO, under the Ministry of Health and Family Welfare, is the authority that approves new drugs for manufacture and import.  State Drug Authorities are the licensing authorities for marketing drugs. New Drugs are defined as:

  • drugs that have not been used in the country before,
  • drugs that have been approved by a Licensing Authority but are now being marketed for different purposes, and
  • fixed dose combinations of two or more drugs that have been individually approved before but are proposed to be combined in a fixed ratio that has not been approved.

The Rules require an applicant for a new drug to conduct clinical trials in India to determine the drug’s safety and efficacy.  These trials are necessary for both domestically manufactured and imported drugs.  However, the authority can exempt a drug from the requirement of local and clinical trials in the public interest based on data available in other countries. Observations and recommendations of the Committee The Committee found that a total of 31 new drugs were approved between January 2008 and October 2010 without conducting clinical trials on Indian patients.  The Report mentioned that drug manufacturers, CDSCO officials and medical experts colluded to approve drugs in violation of laws.  Following are some of the Report’s findings:

  • Under the Rules, the Drugs Controller General (India) (DCGI), the head of CDSCO, can clear sites of clinical trials after ensuring that major ethnic groups are enrolled in these trials to have a truly representative sample.  This rule was violated by the DCGI when sites for clinical trials were approved without ensuring diversity.  The Committee recommended that the DCGI approve sites for trials only if they cover patients from major ethnic backgrounds.
  •  The Report found that certain actions by experts were in violation of the Code of Ethics of the Medical Council of India.  A review of expert opinions revealed that several medical expert recommendations had been given as personal opinions rather than on the basis of scientific data.  Additionally, many expert opinions were written by what the Report calls ‘the invisible hands’ of drug manufacturers.  The Committee recommended that CDSCO formulate a clear set of written guidelines on the selection process of experts with emphasis on expertise in the area of drugs.
  •  The Rules ban the import and marketing of any drug whose use is prohibited in the country of origin.  CDSCO violated this rule by approving certain Fixed Dose Combination drugs for clinical trials without considering the drugs’ regulatory status in their respective country of origin.  Drugs such as Deanxit and Buclizine, which have been prohibited for sale and use in their countries of origin, Denmark and Belgium, respectively, were approved for clinical trials.  The Committee recommended an inquiry into the unlawful approval of these drugs.
  • The Rules require animal studies to be conducted for approval of a drug for use by women of reproductive age.  CDSCO violated this rule in approving Letrozole for treating female infertility.  Globally the drug has only been used as an anti-cancer drug for use among post-menopausal women.  The drug has not been permitted for use among women of reproductive age because of side effects.  The Committee recommended that responsibility be fixed for unlawfully approving Letrozole.
  •  Rules require Post-marketing Safety Update Reports (PSURs) on drugs to be submitted to CDSCO.  PSURs are used to collect information on adverse effects of drugs on Indian patients as a result of ethnic differences.  When asked by the Committee to furnish PSURs on 42 randomly selected new drugs, the Ministry was able to submit PSURs for only 8 drugs.  The Report contended that this action reflected a poor follow-up of side effects on Indian patients.  The Committee recommended that manufacturers of new drugs be warned about suspension of marketing approval unless they comply with mandatory rules on PSURs.

 

Changes recommended by the Standing Committee on Land Acquisition and Rehabilitation and Resettlement Bill, 2011

(Co-authored by Sana Gangwani and Pallavi Bedi) The Standing Committee Report on the Land Acquisition and R&R Bill, 2011 was tabled in the Lok Sabha on May 17, 2012. The major changes to the Bill recommended by the Committee include:

  • Land may not be acquired for use by private companies and PPPs.
  • The role of the local governments should be expanded and made more participatory in the acquisition and R&R process. The role of Gram Sabhas should not be limited to consultation, but their consent should be obtained at different stages.
  • The Clause giving wide discretion to the government in notifying any project as infrastructure project should be deleted.
  • Threshold for R&R provisions should be fixed by the states and not the central government since sale and purchase of land is a state subject in the Constitution (Item 18, State List).
  • There should be a restriction on the acquisition of agricultural land.  The limit on the acquisition of such land should be fixed by the state governments.

For a detailed comparison of the Bill with the recommendations of the Standing Committee see here.

General Anti Avoidance Rule (GAAR)

The issue of the General Anti Avoidance Rule (GAAR) has dominated the news recently and there are fears that GAAR will discourage foreign investment in India.  However, tax avoidance can hinder public finance objectives and it is in this context GAAR was introduced in this year’s Budget.  Last week, the Finance Minister pushed back the implementation of GAAR by a year. What is GAAR? GAAR was first introduced in the Direct Taxes Code Bill 2010.  The original proposal gave the Commissioner of Income Tax the authority to declare any arrangement or transaction by a taxpayer as ‘impermissible’ if he believed the main purpose of the arrangement was to obtain a tax benefit.  The 2012-13 Finance Bill (Bill), that was passed by Parliament yesterday, defines ‘impermissible avoidance arrangements’ as an arrangement that satisfies one of four tests.  Under these tests, an agreement would be an ‘impermissible avoidance arrangement’ if it  (i) creates rights and obligations not normally created between parties dealing at arm’s length, (ii) results in misuse or abuse of provisions of tax laws, (iii) is carried out in a way not normally employed for bona fide purpose or (iv) lacks commercial substance.

As per the Bill, arrangements which lack commercial substance could involve round trip financing, an accommodating party and elements that have the effect of offsetting or cancelling each other.  A transaction that disguises the value, location, source, ownership or control of funds would also be deemed to lack commercial substance. The Bill as introduced also presumed that obtaining a tax benefit was the main purpose of an arrangement unless the taxpayer could prove otherwise. Why? GAAR was introduced to address tax avoidance and ensure that those in different tax brackets are taxed the correct amount.  In many instances of tax avoidance, arrangements may take place with the sole intention of gaining a tax advantage while complying with the law.  This is when the doctrine of ‘substance over form’ may apply.  ‘Substance over form’ is where real intention of parties and the purpose of an arrangement is taken into account rather than just the nomenclature of the arrangement.  Many countries, like Canada and South Africa, have codified the doctrine of ‘substance over form’ through a GAAR – type ruling. Issues with GAARcommon criticism of GAAR is that it provides discretion and authority to the tax administration which can be misused.  The Standing Committee responded to GAAR in their report on the Direct Taxes Code Bill in March, 2012. They suggested that the provisions should ensure that taxpayers entering genuinely valid arrangements are not harassed.  They recommended that the onus should be on tax authorities, not the taxpayer, to prove tax avoidance.  In addition, the committee suggested an independent body to act as the approving panel to ensure impartiality.  They also recommended that the assessing officer be designated in the code to reduce harassment and unwarranted litigation. GAAR Amendments On May 8, 2012 the Finance Minister amended the GAAR provisions following the Standing Committee’s recommendations.  The main change was to delay the implementation of GAAR by a year to “provide more time to both taxpayers and the tax administration to address all related issues”.  GAAR will now apply on income earned in 2013-14 and thereafter.  In addition, the Finance Minister removed the burden upon the taxpayer to prove that the main purpose of an alleged impermissible arrangement was not to obtain tax benefit.  These amendments were approved with the passing of the Bill. In his speech, the Finance Minister stated that a Committee had also been formed under the Chairmanship of the Director General of Income Tax.  The Committee will suggest rules, guidelines and safeguards for implementation of GAAR.  The Committee is expected to submit its recommendations by May 31, 2012 after holding discussions with various stakeholders in the debate.

Cabinet clears four Bills piloted by the Ministry of HRD

According to news reports (see here and here), the Cabinet approved four Bills for discussion in Parliament.  The Bills cleared for consideration and passing are: the Copyright (Amendment) Bill, 2010; the National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010 and the Protection of Women against Sexual Harassment at Work Place Bill, 2010.  It cleared the Universities for Research and Innovation Bill, 2012 for introduction in Parliament. In this post, we discuss the key provisions of the Bills and the recommendations made by the Standing Committee on Human Resource Development (HRD). The Copyright (Amendment) Bill, 2010 The Bill was introduced on April 19, 2010 in the Rajya Sabha and referred to the Standing Committee on HRD, which tabled its report on November 23, 2010.  The government had attempted to pass it in the Winter session twice.  However, the Opposition raised the issue of conflict of interest.  The Rules of the Ethics Committee state that a MP has to declare his personal or pecuniary interest in a matter, which is under discussion in the Rajya Sabha.  The MPs contended that the HRD Minister, Kapil Sibal, could not pilot the Bill without declaring his interest.  They argued that his son was the lawyer for a music company which is party to a legal dispute with TV broadcasters to which the amendment would apply (see here for debate on the issue in Parliament). The Copyright Act, 1957 defines the rights of authors of creative works such as books, plays, music, and films.  Two key amendments proposed in the Bill are: -          Copyright in a film currently rests with the producer for 60 years.  The Bill vests copyright in a director as well. -          The Bill makes special provisions for those whose work is used in films or sound recordings (e.g. lyricists or composers).  Rights to royalties from such works, when used in media other than films or sound recordings, shall rest with the creator of the work. (See here for PRS analysis of the Bill) Key recommendations of the Standing Committee: (a) Drop the provision that makes the principal director the author of a film along with the producer; and (b) Keep the provisions for compulsory licensing in line with the terms of international agreements. (See here for PRS Standing Committee Report summary) The National Accreditation Regulatory Authority for Higher Educational Institutions Bill, 2010 The Bill was introduced on May 3, 2010 in the Lok Sabha and referred to the Standing Committee on HRD, which tabled its report on August 12, 2011.  This Bill is part of the government’s attempt to reform the higher education sector.   The key objective is to provide an effective means of quality assurance in higher education. Presently, accreditation is voluntary.  Higher educational institutions are accredited by two autonomous bodies set up by the University Grants Commission and the All India Council of Technical Education.  The Bill makes it mandatory for each institution and every programme to get accredited by an accreditation agency.  The agencies have to be registered with the National Accreditation Regulatory Authority.  Only non-profit, government controlled bodies are eligible to register as accreditation agencies. (See here for PRS analysis of the Bill) The Standing Committee made some recommendations: (a) assessment for accreditation should start after two batches of students have passed out of the institution; (b) there should be specific provisions for medical education; and (c) registration to accreditation agencies should initially be granted for five years (could be extended to 10 years).   (See here for PRS Standing Committee Report summary) The Protection of Women against Sexual Harassment at Work Place Bill, 2010 The Bill was introduced on December 7, 2010 in the Lok Sabha and referred to the Standing Committee on HRD, which tabled

its report on December 8, 2011. The Indian Penal Code covers criminal acts that outrage or insult the 'modesty' of women.  It does not cover situations which could create a hostile or difficult environment for women at the work place.  The Supreme Court in 1997 (Vishaka judgment) laid down guidelines to protect women from sexual harassment.  This Bill defines sexual harassment and provides a mechanism for redressing complaints.  The protection against sexual harassment is applicable to all women at the workplace.  However, the Bill does not cover domestic workers working at home. (See here for PRS analysis of the Bill) The Standing Committee recommendations addressed issues of gender neutrality, inclusion of domestic workers and the modified definition of sexual harassment. (See here for PRS Standing Committee Report summary) The Universities for Research and Innovation Bill, 2012 The Bill was cleared by the Cabinet and is likely to be introduced in Parliament this session.  It seeks to provide for the establishment and incorporation of Universities for Research and Innovation.  These universities shall be hubs of education, research and innovation. Although an official copy of the Bill is not yet available, newspaper reports suggest that this is an omnibus law under which innovation universities (focused on specific research areas such as environment, astrophysics and urban planning) shall be established.  In India, a university can only be set up through an Act of Parliament or state legislature.  The Planning Commission’s Working Group on Higher Education report stated that these universities could be funded by the private sector as well.  The government aims to create 14 innovation universities, which would be world class.

 

B.Tech students from new IITs may not get their degrees on time

The first batch of B.Tech students will pass out in the next couple of months from six new IITs but they will not get their degrees unless Parliament passes an Amendment Bill.  M.Tech students who completed their course in IIT Hyderabad last year have not yet been awarded their degrees. The Institute of Technology (Amendment) Bill, 2010 is listed for consideration and passing in the Rajya Sabha on April 30, 2012 along with the National Institutes of Technology (Amendment) Bill, 2010.  Both Bills were passed in the Lok Sabha in 2011Both Bills confer the status of institutions of national importance to a number of new institutions, which implies that they have the power to award degrees (other technical institutions have to be affiliated with a university to be able to award degrees).  These institutions cannot award degrees until Rajya Sabha also passes the Bill, the President gives assent and the central government brings it into effect through a notification. Power to grant degrees The Ministry of HRD established six new Indian Institutes Technology (IITs) in 2008 and two in 2009.  It also established five new Indian Institutes of Science Education and Research (IISERs).  However, they are still awaiting for the power to be recognised as degree granting institutions.  Entry 64 of the Union List states that only Parliament can declare an institution to be an institution of national importance (see here and here).  Also, the University Grants Commission Act, 1956 states that the right to confer degrees can be exercised only by a university, deemed university or any institution specially empowered by an Act of Parliament to do so. According to news reports, students of the new IISERs who passed out in 2011 have not received their degrees because of the legislative delay.  Similar problems were reported by students in IIT-Benaras Hindu University.  The students of the new IITs, which were set up in 2008 would be passing out this year.  It is likely that they would face similar problems.  In fact, IIT-Hyderabad is already in the news for not being able to award degree to its Masters students. Highlights of the Bills The Institute of Technology (Amendment) Bill, 2010 amends the Institutes of Technology Act, 1961, which declares certain Institutes of Technology to be institutions of national importance by adding eight new Indian Institutes of Technology (IITs) in Bhubaneshwar, Gandhinagar, Hyderabad, Indore, Jodhpur, Mandi, Patna, Ropar.  It also seeks to integrate the Institute of Technology, Banaras Hindu University (BHU) within the ambit of the Act.  All these institutions shall be declared as institutions of national importance (see here for a Bill Summary). The Bill was referred to the Standing Committee on HRD, which raised a few issues with regard to lack of clarity about the zone in which IIT-BHU shall be operating, the need to preserve the autonomy of the IITs and the need to fulfil qualitative parameters before the new IITs could transform into institutes of national importance (see here for the Standing Committee Report and a Summary). The National Institutes of Technology (Amendment) Bill, 2010 amends the National Institutes of Technology Act, 2007 to add a schedule of five Indian Institutes of Science Education and Research (IISER) (established in Kolkata, Pune, Mohali, Bhopal and Thiruvananthapuram).  These institutions shall be declared to be institutions of national importance.  Currently, there are 20 institutions listed as institutions of national importance under the 2007 Act (see here for a Bill Summary). The Standing Committee Report on the Bill made a few recommendations: (a) the composition of the Board of Governors should be made more expert specific in with the mandate of IISERs; (b) IISER Council should have less number of Secretaries, and (c) details of the inter-disciplinary knowledge regime should strive toward flexibility and freedom in research (see here for the Standing Committee Report and a Summary).

The Piracy Bill, 2012

The Piracy Bill was introduced in Lok Sabha on April 24, 2012.  According to the Statement of Objects and Reasons, there has been a significant increase in attacks by pirates, particularly in the Gulf of Aden and off the coast of Somalia.  This has affected security of maritime traffic and personnel plying between Asia, Europe and Africa.  Moreover, enhanced naval presence in the Gulf of Aden is now causing pirates to shift operations close to India’s Exclusive Economic Zone.   As a result, a number of Somali pirates are presently in the custody of Indian police authorities. However, since piracy as a crime is not included in the Indian Penal Code (IPC), this has led to problems in prosecution. The Piracy Bill intends to fill this gap and provide clarity in the law. The Bill, if passed by Parliament, would extend to the entire Exclusive Economic Zone of India (EEZ).  Under international law, EEZ is a seazone over which a country has special rights for exploration and use of marine resources.  It stretches outward from the coast, up to 200 nautical miles into the sea. The Bill defines 'piracy' as any illegal act of violence or detention for private ends by the crew or passengers of a private ship or aircraft on high seas or at a place outside the jurisdiction of any State.  This definition is akin to the definition of piracy laid down under the 'United Nations Convention on the Law of the Sea'. The Bill seeks to punish piracy with imprisonment for life.  In cases where piracy leads to death, it may be punished with death.  It also provides that if arms, ammunition are recovered from the possession of the accused, or if there is evidence of threat of violence, the burden of proof for proving innocence would shift to the accused. The Bill empowers the government to set up designated courts for speedy trial of offences and authorizes the court to prosecute the accused regardless of his/ her nationality.  It also provides for extradition. You can access the Bill text here.