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Explaining the recent ban on e-cigarettes

On Wednesday, the government promulgated an Ordinance to ban electronic cigarettes in India.  In this context, we look at what are electronic cigarettes, what are the current regulations in place, and what the Ordinance seeks to do.

What are electronic cigarettes?

The Ordinance defines electronic cigarettes (e-cigarettes) as battery-operated devices that heat a substance, which may or may not contain nicotine, to create vapour for inhalation.  These e-cigarettes can also contain different flavours such as menthol, mango, watermelon, and cucumber.  Usually, e-cigarettes are shaped like conventional tobacco products (such as cigarettes, cigars, or hookahs), but they also take the form of everyday items such as pens and USB memory sticks.

Unlike traditional cigarettes, e-cigarettes do not contain tobacco and therefore are not regulated under the Cigarettes and Other Tobacco Products Act, 2003.  This Act regulates the sale, production, and distribution of cigarettes and other tobacco products in India, and prohibits advertisement of cigarettes. 

What are the international regulations for e-cigarettes?

India is a signatory to the WHO Framework Convention on Tobacco Control (WHO FCTC) which was developed in response to the globalisation of the tobacco epidemic.  In 2014, the WHO FCTC invited all its signatories to consider prohibiting or regulating e-cigarettes in their countries.  This was suggested due to emerging evidence on the negative health impact of these products which could result in lung cancer, cardiovascular diseases, and other illnesses associated with smoking.

Since then, several countries such as Brazil, Mexico, Singapore, and Thailand have banned the production, manufacture, and sale of e-cigarettes.  Recently, the states of New York and Michigan in USA banned the sale of flavoured e-cigarettes.  Whereas, in UK, the manufacture and sale of e-cigarettes has been allowed based on certain conditions.  Further, the advertisement and promotion, and the levels of nicotine in e-cigarettes is also regulated.

Prior to the Ordinance, were e-cigarettes regulated in India?

In August 2018, the Ministry of Health and Family Welfare had released an advisory to all states requiring them to not approve any new e-cigarettes and restrict the sale and advertisements of e-cigarettes.  Based on this advisory, 15 states including Delhi, Maharashtra, and Uttar Pradesh have since banned e-cigarettes.  However, this advisory was challenged in the Delhi High Court in March 2019, which subsequently imposed a stay on the ban.

What does the Ordinance do?

The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India.  Any person who contravenes this provision will be punishable with imprisonment of up to one year, or a fine of one lakh rupees, or both.  For any subsequent offence, the person will be punishable with an imprisonment of up to three years, along with a fine of up to five lakh rupees.

Additionally, storage of e-cigarettes will be punishable with an imprisonment of up to six months, or a fine of Rs 50,000 or both.  Once the Ordinance comes into force (i.e., on September 18, 2019), the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorised officer.  Such an authorised officer may be a police officer (at least at the level of a sub-inspector), or any other officer as notified by the central or state government. 

Note that, the Ordinance does not contain any provisions regarding possession or use of e-cigarettes.  The Ordinance will be in force for the next six months, and must be approved by Parliament within six weeks of the commencement of the next session of Parliament.  If it is not passed within this time frame, it will cease to be in force. 

The Importance of Parliamentary Committees

Last week, the Departmentally Related Standing Committees were reconstituted for the first year of the 17th Lok Sabha.  In this context, we discuss the functioning and role of Standing Committees.

The visible part of Parliament’s work takes place on the floor of the House.  Parliament meets for three sessions a year i.e., the Budget, Monsoon, and Winter Sessions.  This part of Parliament’s work is televised and closely watched.  However, Parliament has another forum through which a considerable amount of its work gets done.  These are known as Parliamentary Committees.  These Committees are smaller units of MPs from both Houses, across political parties and they function throughout the year.  These smaller groups of MPs study and deliberate on a range of subject matters, Bills, and budgets of all the ministries.

During the recently concluded first Session of the 17th Lok Sabha, Parliament sat for 37 days.  In the last 10 years, Parliament met for 67 days per year, on average.  This is a short of amount of time for MPs to be able to get into the depth of matters being discussed in the House.  Since Committees meet throughout the year, they help make up for this lack of time available on the floor of the House. 

Parliament deliberates on matters that are complex, and therefore needs technical expertise to understand such matters better.  Committees help with this by providing a forum where Members can engage with domain experts and government officials during the course of their study.  For example, the Committee on Health and Family Welfare studied the Surrogacy (Regulation) Bill, 2016 which prohibits commercial surrogacy, but allows altruistic surrogacy.  As MPs come from varying backgrounds, they may not have had the expertise to understand the details around surrogacy such as fertility issues, abortion, and regulation of surrogacy clinics, among others.  The Committee called upon a range of stakeholders including the National Commission for Women, doctors, and government officials to better their understanding of the issues, before finalising their report. 

Committees also provide a forum for building consensus across political parties.  The proceedings of the House during sessions are televised, and MPs are likely to stick to their party positions on most matters.  Committees have closed door meetings, which allows them to freely question and discuss issues and arrive at a consensus. 

After a Committee completes its study, it publishes its report which is laid in Parliament.  These recommendations are not binding, however, they hold a lot of weight.  For example, the Standing Committee on Health made several recommendations to the National Medical Commission Bill in 2017.  Many of these were incorporated in the recently passed 2019 Bill, including removing the provision for allowing a bridge course for AYUSH practitioners. 

There are 24 such Departmentally Related Standing Committees (DRSCs), each of which oversees a set of Ministries.  DRSCs were set up first in 1993, to ensure Parliament could keep with the growing complexity of governance.  These are permanent Committees that are reconstituted every year.  They consist of 21 Members from Lok Sabha, and 10 Members from Rajya Sabha, and are headed by a Chairperson.  The DRSCs primarily look at three things: (i) Bills, (ii) budgets, and (iii) subject specific issues for examination.  Other types of Standing Committees include Financial Committees which facilitate Parliament’s scrutiny over government expenditure.  Besides these, Parliament can also form ad hoc Committees for a specific purpose such as addressing administrative issues, examining a Bill, or examining an issue. 

To ensure that a Bill is scrutinised properly before it is passed, our law making procedure has a provision for Bills to be referred to a DRSC for detailed examination.  Any Bill introduced in Lok Sabha or Rajya Sabha can be referred to a DRSC by either the Speaker of the Lok Sabha or Chairman of the Rajya Sabha.  Over the years, the Committees have immensely contributed to strengthen the laws passed by Parliament.  For example, the Consumer Protection Act, 2019, overhauling the 1986 law, was recently passed during the Budget Session.  An earlier version of the Bill had been examined by the Committee on Food and Consumer Affairs, which suggested several amendments such as increasing penalties for misleading advertisements, making certain definitions clearer.   The government accepted most of these recommendations and incorporated them in the 2019 Act.

Besides Bills, the DRSCs also examine the budget.  The detailed estimates of expenditure of all ministries, called Demand for Grants are sent for examination to the DRCSs.  They study the demands to examine the trends in allocations, spending by the ministries, utilisation levels, and the policy priorities of each ministry.  However, only a limited proportion of the budget is usually discussed on the floor of the House.  In the recently dissolved16th Lok Sabha, 17% of the budget was discussed in the House. 

Committees also examine policy issues in their respective Ministries, and make suggestions to the government. The government has to report back on whether these recommendations have been accepted or not.  Based on this, the Committees then table an Action Taken Report, which shows status of the government’s action on each recommendation. 

While Committees have substantially impacted Parliament’s efficacy in discharging its roles, there is still scope for strengthening the Committee system.  In the 16th Lok Sabha, DRSCs examined 41 Bills, 331 Demands for Grants, 197 issues, and published 503 Action Taken Reports. 

However, the rules do not require that all Bills be examined by a Committee.  This leads to some Bills being passed without the advantage of a Committee scrutinising its technical details.  Recently, there has been a declining trend in the percentage of Bills being referred to a Committee.  In the 15th LS, 71% of the Bills introduced were referred to Committees for examination, as compared to 27% in the 16th Lok Sabha.

With the DRSCs now constituted for the first year of the 17th Lok Sabha, they will soon begin their meetings to select the subjects they are going to examine.  Some Committees already have Bills to examine that were referred to them during the 16th Lok Sabha.  Some of these Bills are: (i) the Cinematograph (Amendment) Bill, 2019, (ii) the Allied and Healthcare Professions Bill, 2018, and (iii) the Registration of Marriage of Non- Resident Indian Bill, 2019So far in the 17th Lok Sabha no Bill has been referred to a Committee yet.

 

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Ban on cryptocurrencies: Understanding the proposed legislation

In July, a Committee set up by the Ministry of Finance to study issues related to virtual currencies, submitted its report.  The Committee recommended that all private cryptocurrencies should be banned in India.  Correspondingly, the Committee proposed a draft Bill banning cryptocurrency in the country.  In this blog, we explain cryptocurrencies and how they are used, recommendations of the Committee with respect to cryptocurrencies and the regulatory framework for cryptocurrencies in India and other countries.

What are virtual currencies and what is their use?

Virtual currency is a digitally tradable form of value, which can be used as a medium of exchange, or a stored value which can be utilised later.  It does not have the status of a legal tender.  A legal tender is guaranteed by the central government and all parties are legally bound to accept it as a mode of payment.

Cryptocurrency is a specific type of virtual currency, which is decentralised and protected by cryptographic encryption techniques.  Bitcoin, Ethereum, Ripple are a few notable examples of cryptocurrencies.  Decentralisation implies that there is no central authority where records of transactions are maintained.  Instead, anyone can create a transaction.  This transaction data is recorded and shared across multiple distributor networks, through independent computers as shown in Figure 1.  This technology is known as Distributed Ledger Technology.

Figure 1: Distributed Ledger Technology

  The Committee noted that there are two principal ways in which cryptocurrencies are raising money.  First, through Initial Coin Offerings, where digital tokens are issued in exchange for other currencies.  Second, through using it as a means of exchange or a payment system.  As of February 2019, there were more than 2,000 cryptocurrencies across the world, with a market capitalisation of approximately USD 120 billion.

Why has the Committee recommended banning of cryptocurrencies?

The Committee noted various regulatory concerns around virtual currencies, and cryptocurrencies in particular.  These include:

Fluctuation in prices: Cryptocurrencies are subjected to market fluctuations and the lack of a centralised authority makes it difficult to regulate them.  For instance, in December 2017, the value of Bitcoin cryptocurrency was around USD 20,000 per coin, which reduced to USD 3,800 per coin by November 2018.  The Ministry of Finance, in a press statement, noted that the price of virtual currencies is a matter of mere speculation resulting in spurt and volatility in their prices.

Risk to consumers: The Committee also noted that there are several vulnerabilities in the design of cryptocurrencies which leave consumers open to risk of fraud.  These include phishing cyber-attacks and ponzi schemes.  For instance, a Rs 2,000 crore ponzi scheme was unveiled in April 2018.  Further, cryptocurrency transactions are irreversible, which means once a transaction is done, there is no way to remedy it.

Impact on power consumption: The Committee also observed that cryptocurrencies can have unfavourable consequences on India’s energy demand.  Validating transactions in a distributed network involves high electricity consumption and requires high computation power.  The Committee noted a study which estimated that 19 households in USA can be powered for one day by the electricity consumed in a single transaction of bitcoin cryptocurrency.

Potential use for criminal activity: The Financial Action Task Force, an intergovernmental organisation to combat money laundering, in its report (2014) observed that virtual currencies provide greater anonymity than traditional payment methods.  This makes them more vulnerable to money-laundering and illicit funding for terror financing.  The Committee noted that the decentralised nature and the anonymity which cryptocurrencies provide makes it difficult for law enforcement authorities to track down people involved in illicit activities.  

Is there any country which has permitted use of cryptocurrencies?

Different countries have adopted different regulatory frameworks with respect to cryptocurrencies.  Some countries have permitted the use of cryptocurrencies as a payment system while there is a complete ban on cryptocurrencies in some others.  Note that no country has allowed use of any virtual currency as legal tender.

Table 1: Regulatory framework for cryptocurrencies in different countries

Country

Regulatory Framework

Canada

Permitted as a payment system and as a form of investment, income from it is taxed

Switzerland

Permitted as a payment system (including consumer to government transactions) and as a form of investment

Japan

Permitted and regulated as a payment system

China

Use of cryptocurrency is banned for all purposes

What are the present regulations in India with respect to cryptocurrencies?

In the last few years, the Reserve Bank of India (RBI) has notified the potential financial, operational, legal and security risks related to cryptocurrencies on multiple occasions (December 2013, February 2017 and December 2017).  In December 2017, the Ministry of Finance issued a statement which clarified that virtual currencies are not legal tender and do not have any regulatory permission or protection in India.  Further, the investors and participants dealing with them are doing so entirely at their risk and should best avoid participating.  In the 2018-19 budget speech, the Finance Minister announced that the government does not consider cryptocurrencies as legal tender and will take all measures to eliminate their use in financing illegitimate activities or as a part of payment system.  In April 2018, RBI notified that entities regulated by it should not deal in virtual currencies or provide services for facilitating any person or entity in dealing with or settling virtual currencies.

How does the draft Bill proposed by the Committee change these regulations?

Currently, only the entities regulated by the central bank are prohibited from dealing in, or providing services for dealing in virtual currencies.  The draft Bill prohibits any form of mining (creating cryptocurrency), issuing, buying, holding, selling or dealing in cryptocurrency in the country.  Further, it provides that cryptocurrency should not be used as legal tender or currency in India.  The Bill allows for the use of technology or processes underlying cryptocurrency for the purpose of experiment, research or teaching. 

The Bill also provides for offences and punishments for the contravention of its provisions.  For instance, it states that mining, holding, selling, issuing or using cryptocurrency is punishable with a fine, or imprisonment up to 10 years, or both.  For individuals who might be in possession of cryptocurrencies, the Bill provides for a transition period of 90 days from the commencement of the Act, during which a person may dispose of any cryptocurrency in their possession, as per the notified rules.

Are there any areas where the Committee recommended use of cryptocurrencies?

According to the Committee, while cryptocurrencies or virtual currencies do not offer any advantages, the underlying technology behind them (Distributed Ledger Technology, DLT) has many potential applications, both in finance and non-finance sectors.  Some of these are listed in Table 2.  The Committee observed that DLT makes it easier to identify duplicate transactions, and therefore can be utilised for fraud-detection, processing KYC requirements, and claim management for insurance.  Further, it can be helpful for removing errors and frauds in land markets, if used for maintaining land records.  The Committee was also of the view that the idea of an official digital currency in India can be explored further, and that the government may setup a group to examine and develop an appropriate model of digital currency in India.

Table 2: Applications of Distributed Ledger Technology

Sector

Possible uses of DLT

Payments

Faster and cheaper cross-border payments

Reduced transaction cost for micro-payments

Identification

Storing personal records such as birth, marriage or death certificates

Removing duplicates in identification platforms such as KYC

Insurance

Fraud detection and risk prevention

Claims prevention and management

Ownership registries

Removing errors and frauds in land markets

Administrative ease of maintaining land records

Trade Financing

Reduced operational complexity and transaction costs

Explaining the draft Bill on violence against healthcare professionals and clinical establishments

Yesterday, the Ministry of Health and Family Welfare released a draft Bill to address incidences of violence against healthcare professionals and damage to the property of clinical establishments.  Public comments on the draft Bill are invited till the end of September.  In this context, we discuss key provisions of the draft Bill below.

What does the draft Bill seek to do?

The draft Bill prohibits any acts of violence committed against healthcare service personnel including doctors, nurses, para medical workers, medical students, and ambulance drivers, among others.  It also prohibits any damage caused to hospitals, clinics, and ambulances. 

Under the draft Bill, violence means any act which may cause: (i) harm, injury or danger to the life of a healthcare service personnel, while discharging their duty, (ii) obstruction or hindrance to healthcare service personnel, while discharging their duty, and (ii) loss or damage to any property or documents in a clinical establishment. 

What are the penalties for committing such acts of violence?

Currently, the Indian Penal Code, 1860 provides for penalties for any harm caused to an individual or any damage caused to property.  Further, the Code prescribes penalties for causing grievous hurt i.e., permanent damage to another individual.  The draft Bill additionally specifies penalties for similar offences caused to healthcare professionals and clinical establishments. 

Under the draft Bill, any person who commits violence, or abets such violence may be punished with imprisonment between six months to five years, along with a fine of up to five lakh rupees.  However, if any person causes grievous hurt to a healthcare service professional, he will be imprisoned for a period between three years to ten years, along with a fine between two lakh rupees and Rs 10 lakh.  Note that, currently under the Indian Penal Code, 1860, an individual who commits grievous hurt is punishable with imprisonment of up to seven years, along with a fine.

In addition to the punishment for offences committed under the draft Bill, the convicted person will also be liable to pay compensation to the affected parties.  This includes: (i) payment of twice the amount of the market value of the damaged property, (ii) one lakh rupees for causing hurt to healthcare service personnel, and (iii) five lakh rupees for causing grievous hurt to healthcare service personnel.  In case of non-payment of compensation, the amount may be recovered under the Revenue Recovery Act, 1890.  The Act provides for recovering certain public arrears by attaching the property of an individual. 

How will these cases of violence be investigated?

All offences under the draft Bill will be cognizable (i.e., a police officer can arrest without a warrant) and non-bailable.  An aggrieved healthcare service professional can write a request to the person-in-charge of the clinical establishment to inform the police of an offence committed under the draft Bill.  Further, any case registered under this Bill will be investigated by a police officer not below the rank of Deputy Superintendent of Police.

This Bill is currently in the draft stage and has been released for comments by stakeholders and experts in the field.  The draft will be revised to incorporate such suggestions.  Note that, comments can be emailed to the Ministry of Health and Family Welfare at us-ms-mohfwnic.in by the end of September.

Examining pendency of cases in the Judiciary

Yesterday, Parliament passed a Bill to increase the number of judges in the Supreme Court from 30 to 33 (excluding the Chief Justice of India).  The Bill was introduced in view of increasing pendency of cases in the Supreme Court.  In 2012, the Supreme Court approved the Scheme of National Court Management System to provide a framework for case management.  The scheme estimated that with an increase in literacy, per capita income, and population, the number of new cases filed each year may go up to 15 crore over the next three decades, which will require at least 75,000 judges.  In this blog, we analyse the pendency of cases at all three levels of courts, i.e. the Supreme Court, the Highs Courts, and the subordinate courts, and discuss the capacity of these courts to dispose of cases.

Pendency in courts has increased over the years; 87% of all pending cases are in subordinate courts

Sources:  Court News, 2006, Supreme Court of India; National Data Judicial Grid accessed on August 7, 2019; PRS.

Overall, the pendency of cases has increased significantly at every level of the judicial hierarchy in the last decade.  Between 2006 and now, there has been an overall increase of 22% (64 lakh cases) in the pendency of cases across all courts.  As of August 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts.  Of these, subordinate courts account for over 87.3% pendency of cases, followed by 12.5% pendency before the 24 High Courts.  The remaining 0.2% of cases are pending with the Supreme Court.  The primary reason for growing pendency of cases is that the number of new cases filed every year has outpaced the number of disposed of cases.  This has resulted in a growing backlog of cases.

In High Courts and subordinate courts, over 32 lakh cases pending for over 10 years

 

 

 

 

 

 

 

Sources:  National Data Judicial Grid accessed on August 7, 2019; Court News, 2006-17, Supreme Court of India; PRS.

In the High Courts, over 8.3 lakh cases have been pending for over 10 years.  This constitutes 19% of all pending High Court cases.  Similarly, in the subordinate courts, over 24 lakh cases (8%) have been pending for over 10 years.  Overall, Allahabad High Court had the highest pendency, with over seven lakh cases pending as of 2017.

Despite high pendency, some High Courts have managed to reduce their backlog.  Between 2006 and 2017, pendency of cases reduced the most in Madras High Court at a rate of 26%, followed by Bombay High Court at 24%.  Conversely, during the same period, the pendency of cases doubled in the Andhra Pradesh High Court, and increased by 2.5 times in Karnataka High Court.

As a result of pendency, number of under-trials in prison is more than double that of convicts

Sources:  Prison Statistics in India, 2015, National Crime Record Bureau; PRS.

Over the years, as a result of growing pendency of cases for long periods, the number of undertrials (accused awaiting trial) in prisons has increased.  Prisons are running at an over-capacity of 114%.  As of 2015, there were over four lakh prisoners in jails.  Of these, two-thirds were undertrials (2.8 lakh) and the remaining one-third were convicts. 

The highest proportion of undertrials (where the number of inmates was at least over 1,000) were in J&K (85%), followed by Bihar (82%).  A total of 3,599 undertrials were detained in jails for more than five years.  Uttar Pradesh had the highest number of such undertrials (1,364) followed by West Bengal (294). 

One interesting factor to note is that more criminal cases are filed in subordinate courts than in High Courts and Supreme Court.  Of the cases pending in the subordinate courts (which constitute 87% of all pending cases), 70% of cases were related to criminal matters.  This increase in the pendency of cases for long periods over the years may have directly resulted in an increase in the number of undertrials in prisons.  In a statement last year, the Chief Justice of India commented that the accused in criminal cases are getting heard after serving out their sentence.

Vacancies in High Courts and Subordinate Courts affect the disposal of cases

Sources:  Court News, 2006-17, Supreme Court of India; PRS.

Vacancy of judges across courts in India has affected the functioning of the judiciary, particularly in relation to the disposal of cases.  Between 2006 and 2017, the number of vacancies in the High Courts has increased from 16% to 37%, and in the subordinate courts from 19% to 25%.  As of 2017, High Courts have 403 vacancies against a sanctioned strength of 1,079 judges, and subordinate courts have 5,676 vacancies against a sanctioned strength of 22,704 judges.  As of 2017, among the major High Courts (with sanctioned strength over 10 judges), the highest proportion of vacancies was in Karnataka High Court at 60% (37 vacancies), followed by Calcutta High Court at 54% (39 vacancies).  Similarly, in major subordinate courts (with sanctioned strength over 100 judges), the highest proportion of vacancies was in Bihar High Court at 46% (835 vacancies), followed by Uttar Pradesh High Court at 42% (1,348 vacancies).

Explainer: The Code on Occupation Safety, Health and Working Condition

Presently, there are around 40 central laws regulating different aspects of labour such as, industrial dispute resolution, bonus payments, and working conditions.  The Ministry of Labour and Employment has proposed to consolidate these laws into four codes—wages, social security, industrial safety and welfare, and industrial relations.

The Occupational Safety, Health and Working Conditions Code, 2019 was introduced in Lok Sabha on July 23, 2019.[1]  The Code consolidates 13 labour laws relating to safety, health and working conditions.  These include the Factories Act, 1948, the Mines Act, 1952, and the Contract Labour (Regulation and Abolition) Act, 1970.  In this context, we explain key provisions of the Code.

Who will be covered under the Code?

The Code applies to organisations employing at least 10 workers, and to all mines and docks.  Provisions of this Code will cover both employees and workers.  Employees include individuals in managerial and administrative positions.  However, the Code does not apply to apprentices, or to offices of the central or state governments.

Does the Code create special provisions for different types of organisations and workers?

Apart from prescribing health and safety provisions that apply to all organisations, the Code also outlines special requirements for different types of organisations (such as factories and mines) and workers (such as beedi and cigar workers).  These special provisions include exceptions or additional requirements.  For example, under the Code, factories are required to get a license in addition to registering under the general provisions of the Code. Similarly, the Code requires certain contractors to get licenses before hiring any contract labour.  Further, audio-visual workers can only be hired after signing an agreement with employers, which must be registered with a government authority.

What are the duties of employers and employees?

The Code lays down several duties of employers.  These include, providing a workplace that is free from hazards that may cause injury or diseases, and providing free annual health examinations to employees.  For certain organisations such as, factories and mines, the employer may have additional responsibilities. These include the obligation to notify authorities in case of an accident at the workplace that leads to death or serious bodily injury of an employee.

Under the Code, employees must take care of their own health and safety, comply with the specified standards, and report unsafe situations to the inspector-cum-facilitator.  Employees also have the right to obtain information related to safety and health standards from the employer.  They may do this by directly approaching the employer, or through a Safety Committee representative.   

Will work hours be uniform for all workers and employees?

Work hours for different types of organisations and employees will be notified by the government.  This is different from the current labour laws, many of which specify work hours within the law itself.  For example, the Factories Act, 1948 provides for a maximum 10 hours of work per day and 60 hours of work per week.[2] 

The Code also changes work hour requirements for women.  The current laws such as, the Mines Act, 1952, and the Plantations Labour Act, 1951, prohibit women from working after 7 pm and before 6 am.[3],[4]  However, the Code permits female workers to work past 7 pm and before 6 am with their consent and the approval of the government.  

What working conditions and welfare facilities does the Code provide for?

The employer is required to provide a hygienic work environment with: (i) ventilation, (ii) comfortable temperature, (iii) sufficient space, (iv) clean drinking water, and (v) latrine and urinal accommodations.  In addition, the government may specify certain other facilities such as, canteens, first aid boxes, and crèches that an employer must provide for.  This is a shift from the current legislation which provides for welfare facilities like canteens and crèches, in the law itself.  For instance, the Factories Act, 1948 requires the provision of canteens, ambulances, and first aid kits for organisations depending on the number of workers employed in the organisation.2

What is the leave policy for workers?

The Code states that no employee can be made to work for more than six days a week.  However, exceptions could be provided for motor transport workers.   Annually, workers must receive one day off for every 20 days they have worked.   While calculating annual leave, maternity leave and periods of lay off will be counted as days spent on duty.

What are the authorities set up under the Code?

The Code requires central and state governments to set up Occupational Safety and Health Advisory Boards at the national and state level, respectively.  These Boards will advise the central and state governments on the standards, rules, and regulations to be framed under the Code.  

The composition of the National Advisory Board includes five representatives for employers, five representatives of employees, and five reputed persons from the fields related to occupational health and safety, amongst other members.  The composition of State Advisory Boards will be decided by state governments.

How is the Code being enforced?

An inspector-cum-facilitator may be appointed by the government to inspect workplaces, inquire and investigate accidents, and provide safety information to workers.  In the case of factories, mines, and docks, the inspector may close or restrict employment in parts of the organisation if there is a health and safety risk.

The Code also prescribes penalties for violating provisions of the Code.  An offence that leads to the death of an employee could result in imprisonment of up to two years, or a fine up to five lakh rupees, or both.  Further, at least 50% of such fine may be given as compensation to the heirs of the victim.  For any other violation where the penalty is not specified, the employer will be penalised with a fine between two and three lakh rupees.  On the other hand, if an employee violates provisions of the Code, he could be fined up to Rs 10,000.

Does the Code provide gender specific provisions?

The Code includes certain provisions specific to female and transgender workers.  With respect to women, the government can prohibit employment of women in certain organisations if working there may be dangerous to their health and safety.  Further, the Code allows female workers to work night shifts with their consent and subject to approval of the government.  The Code also acknowledges transgender persons as a third gender by requiring separate urinal and latrine accommodations, rest rooms, washing spaces, and locker rooms for male, female, and transgender workers.  

[1] Occupational Safety, Health and Working Conditions Code, 2019, Ministry of Labour and Employment, https://www.prsindia.org/sites/default/files/bill_files/Occupational%20Safety%2C%20Health%20and%20Working%20Conditions%20Code%2C%202019.pdf.

[2] Factories Act, 1948, Ministry of Labour and Employment, https://labour.gov.in/sites/default/files/TheFactoriesAct1948.pdf

[3] Mines Act, 1952, http://www.dgms.gov.in/writereaddata/UploadFile/Mines%20Act,%201952.pdf.

[4] Plantations Labour Act, 1951, https://labour.gov.in/sites/default/files/The-Plantation-Labour-Act-1951.pdf.

[5] Beedi and Cigar Workers (Conditions of Employment) Act, 1966, http://labour.bih.nic.in/acts/beedi-and-cigar-workers-act-1966.pdf.

Understanding the National Medical Commission Bill, 2019

Today, the National Medical Commission Bill, 2019 was passed by Lok Sabha.  It seeks to regulate medical education and practice in India.  In 2017, a similar Bill had been introduced in Lok Sabha.  It was examined by the Standing Committee on Health and Family Welfare, which recommended several changes to the Bill.  However, the 2017 Bill lapsed with the dissolution of the 16th Lok Sabha.  In this post, we analyse the 2019 Bill.

How is medical education and practice regulated currently?

The Medical Council of India (MCI) is responsible for regulating medical education and practice.  Over the years, there have been several issues with the functioning of the MCI with respect to its regulatory role, composition, allegations of corruption, and lack of accountability.  For example, MCI is an elected body where its members are elected by medical practitioners themselves, i.e., the regulator is elected by the regulated.  Experts have recommended nomination based constitution of the MCI instead of election, and separating the regulation of medical education and medical practice.  They suggested that legislative changes should be brought in to overhaul the functioning of the MCI.

To meet this objective, the Bill repeals the Indian Medical Council Act, 1956 and dissolves the current MCI.

The 2019 Bill sets up the National Medical Commission (NMC) as an umbrella regulatory body with certain other bodies under it.  The NMC will subsume the MCI and will regulate medical education and practice in India.  Under the Bill, states will establish their respective State Medical Councils within three years.  These Councils will have a role similar to the NMC, at the state level.

Functions of the NMC include: (i) laying down policies for regulating medical institutions and medical professionals, (ii) assessing the requirements of human resources and infrastructure in healthcare, (iii) ensuring compliance by the State Medical Councils with the regulations made under the Bill, and (iv) framing guidelines for determination of fee for up to 50% of the seats in the private medical institutions.

Who will be a part of the NMC?

The Bill replaces the MCI with the NMC, whose members will be nominated.  The NMC will consist of 25 members, including: (i) Director Generals of the Directorate General of Health Services and the Indian Council of Medical Research, (ii) Director of any of the AIIMS, (iii) five members (part-time) to be elected by the registered medical practitioners, and (iv) six members appointed on rotational basis from amongst the nominees of the states in the Medical Advisory Council.

Of these 25 members, at least 15 (60%) are medical practitioners.  The MCI has been noted to be non-diverse and consists mostly of doctors who look out for their own self-interest over public interest.   In order to reduce the monopoly of doctors, it has been recommended by experts that the MCI should include diverse stakeholders such as public health experts, social scientists, and health economists.  For example, in the United Kingdom, the General Medical Council which is responsible for regulating medical education and practice consists of 12 medical practitioners and 12 lay members (such as community health members, administrators from local government).

What are the regulatory bodies being set up under the NMC?

The Bill sets up four autonomous boards under the supervision of the NMC.  Each board will consist of a President and four members (of which two members will be part-time), appointed by the central government (on the recommendation of a search committee).  These bodies are:

  • The Under-Graduate Medical Education Board (UGMEB) and the Post-Graduate Medical Education Board (PGMEB): These two bodies will be responsible for formulating standards, curriculum, guidelines for medical education, and granting recognition to medical qualifications at the under-graduate and post-graduate levels respectively.
  • The Medical Assessment and Rating Board: The Board will have the power to levy monetary penalties on institutions which fail to maintain the minimum standards as laid down by the UGMEB and the PGMEB.  It will also grant permissions for establishing new medical colleges, starting postgraduate courses, and increasing the number of seats in a medical college.
  • The Ethics and Medical Registration Board: This Board will maintain a National Register of all the licensed medical practitioners in the country, and also regulate professional and medical conduct.  Only those included in the Register will be allowed to practice as doctors.  The Board will also maintain a register of all licensed community health providers in the country.

How is the Bill changing the eligibility guidelines for doctors to practice medicine?

There will be a uniform National Eligibility-cum-Entrance Test for admission to under-graduate and post-graduate super-speciality medical education in all medical institutions regulated under the Bill.  Further, the Bill introduces a common final year undergraduate examination called the National Exit Test for students graduating from medical institutions to obtain the license for practice.  This test will also serve as the basis for admission into post-graduate courses at medical institutions under this Bill.  Foreign medical practitioners may be permitted temporary registration to practice in India.

However, the Bill does not specify the validity period of this license to practice.  In other countries such as the United Kingdom and Australia, a license to practice needs to be periodically renewed.  For example, in the UK the license has to be renewed every five years, and in Australia it has to renewed annually. 

How will the issues of medical misconduct be addressed?

The State Medical Council will receive complaints relating to professional or ethical misconduct against a registered medical practitioner.  If the medical practitioner is aggrieved of a decision of the State Medical Council, he may appeal to the Ethics and Medical Registration Board.  If the medical practitioner is aggrieved of the decision of the Board, he can approach the NMC to appeal against the decision.  It is unclear why the NMC is an appellate authority with regard to matters related to professional or ethical misconduct of medical practitioners. 

It may be argued that disputes related to ethics and misconduct in medical practice may require judicial expertise.  For example, in the UK, the regulator for medical education and practice – the General Medical Council (GMC) receives complaints with regard to ethical misconduct and is required to do an initial documentary investigation in the matter and then forwards the complaint to a Tribunal.  This Tribunal is a judicial body independent of the GMC.  The adjudication decision and final disciplinary action is decided by the Tribunal.

How does the Bill regulate community health providers?

As of January 2018, the doctor to population ratio in India was 1:1655 compared to the World Health Organisation standard of 1:1000.  To fill in the gaps of availability of medical professionals, the Bill provides for the NMC to grant limited license to certain mid-level practitioners called community health providers, connected with the modern medical profession to practice medicine.  These mid-level medical practitioners may prescribe specified medicines in primary and preventive healthcare.  However, in any other cases, these practitioners may only prescribe medicine under the supervision of a registered medical practitioner.

This is similar to other countries where medical professionals other than doctors are allowed to prescribe allopathic medicine.  For example, Nurse Practitioners in the USA provide a full range of primary, acute, and specialty health care services, including ordering and performing diagnostic tests, and prescribing medications.  For this purpose, Nurse Practitioners must complete a master's or doctoral degree program, advanced clinical training, and obtain a national certification.

Explainer: The Right to Information (Amendment) Bill, 2019

The Right to Information (Amendment) Bill, 2019 that amends the Right to Information Act, 2005 was introduced in Lok Sabha today.

What does the RTI Act do?  

Under the RTI Act, 2005, Public Authorities are required to make disclosures on various aspects of their structure and functioning.  This includes: (i) disclosure on their organisation, functions, and structure, (ii) powers and duties of its officers and employees, and (iii) financial information.  The intent of such suo moto disclosures is that the public should need minimum recourse through the Act to obtain such information.  If such information is not made available, citizens have the right to request for it from the Authorities.  This may include information in the form of documents, files, or electronic records under the control of the Public Authority.  The intent behind the enactment of the Act is to promote transparency and accountability in the working of Public Authorities.  

Who is included in the ambit of ‘Public Authorities’?

‘Public Authorities’ include bodies of self-government established under the Constitution, or under any law or government notification.  For instance, these include Ministries, public sector undertakings, and regulators.  It also includes any entities owned, controlled or substantially financed and non-government organizations substantially financed directly or indirectly by funds provided by the government. 

How is the right to information enforced under the Act?

The Act has established a three tier structure for enforcing the right to information guaranteed under the Act.

Public Authorities designate some of their officers as Public Information Officers.  The first request for information goes to Central/State Assistant Public Information Officer and Central/State Public Information Officer, designated by the Public Authorities. These Officers are required to provide information to an RTI applicant within 30 days of the request.  Appeals from their decisions go to an Appellate Authority.  Appeals against the order of the Appellate Authority go to the State Information Commission or the Central Information Commission.  These Information Commissions consists of a Chief Information Commissioner, and up to 10 Information Commissioners.  

What does the Right to Information (Amendment) Bill, 2019 propose?

The Bill changes the terms and conditions of service of the CIC and Information Commissioners at the centre and in states.  Table 1 below compares the provisions of the Act and the Bill. 

Table 1:  Comparison of the provisions of the Right to Information Act, 2005 and the Right to Information (Amendment) Bill, 2019

Provision

RTI Act, 2005

RTI (Amendment) Bill, 2019

Term

The Chief Information Commissioner (CIC) and Information Commissioners (ICs) (at the central and state level) will hold office for a term of five years. 

The Bill removes this provision and states that the central government will notify the term of office for the CIC and the ICs.

Quantum of Salary

The salary of the CIC and ICs (at the central level) will be equivalent to the salary paid to the Chief Election Commissioner and Election Commissioners, respectively. 

Similarly, the salary of the CIC and ICs (at the state level) will be equivalent to the salary paid to the Election Commissioners and the Chief Secretary to the state government, respectively. 

 The Bill removes these provisions and states that the salaries, allowances, and other terms and conditions of service of the central and state CIC and ICs will be determined by the central government.

 

Deductions in Salary

The Act states that at the time of the appointment of the CIC and ICs (at the central and state level), if they are receiving pension or any other retirement benefits for previous government service, their salaries will be reduced by an amount equal to the pension. 

Previous government service includes service under: (i) the central government, (ii) state government, (iii) corporation established under a central or state law, and (iv) company owned or controlled by the central or state government.

The Bill removes these provisions.

 

Sources:  Right to Information Act, 2005; Right to Information (Amendment) Bill, 2019; PRS.

Understanding the AERA (Amendment) Bill, 2019

Earlier this week, Rajya Sabha passed the Airports Economic Regulatory Authority of India (Amendment) Bill, 2019, and the Bill is now pending in Lok Sabha.  The Bill amends the Airports Economic Regulatory Authority of India Act, 2008.  The Act established the Airports Economic Regulatory Authority of India (AERA).  AERA regulates tariffs and other charges for aeronautical services provided at civilian airports with annual traffic above 15 lakh passengers.  It also monitors the performance standard of services across these airports.  In this post, we explain the amendments that the Bill seeks to bring in and some of the issues around the functioning of the regulator.

Why was AERA created, and what is its role?

Few years back, private players started operating civilian airports.  Typically, airports run the risk of becoming a monopoly because cities usually have one civilian airport which controls all aeronautical services in that area.  To ensure that private airport operators do not misuse their monopoly, the need for an independent tariff regulator in the airport sector was felt.  Consequently, the Airports Economic Regulatory Authority of India Act, 2008 (AERA Act) was passed which set up AERA. 

AERA regulates tariffs and other charges (development fee and passenger service fee) for aeronautical services (air traffic management, landing and parking of aircraft, ground handling services) at major airports.  Major airports include civilian airports with annual traffic above 15 lakh passengers.  In 2018-19, there were 32 such airports (see Table 1).  As of June 2019, 27 of these are being regulated by AERA (AERA also regulates tariffs at the Kannur airport which was used by 89,127 passengers in 2018-19).  For the remaining airports, tariffs are determined by the Airports Authority of India (AAI), which is a body under the Ministry of Civil Aviation that also operates airports. 

What changes are being proposed in the Bill?

The Bill seeks to do two things:

Definition of major airports:  Currently, the AERA Act defines a major airport as one with annual passenger traffic over 15 lakh, or any other airports as notified by the central government.  The Bill increases the threshold of annual passenger traffic for major airports to over 35 lakh. 

Tariff determination by AERA:  Under the Act, AERA is responsible for determining the: (i) tariff for aeronautical services every five years, (ii) development fees, and (iii) passengers service fee.  It can also amend the tariffs in the interim period.  The Bill adds that AERA will not determine: (i) tariff, (ii) tariff structures, or (iii) development fees, in certain cases.  These cases include those where such tariff amounts were a part of the bid document on the basis of which the airport operations were awarded.  AERA will be consulted (by the concessioning authority, the Ministry of Civil Aviation) before incorporating such tariffs in the bid document, and such tariffs must be notified.

Why is the Act getting amended?

The Statement of Objects and Reasons of the Bill states that the exponential growth of the sector has put tremendous pressure on AERA, while its resources are limited.  Therefore, if too many airports come under the purview of AERA, it will not be able to perform its functions efficiently.  If the challenge for AERA is availability of limited resources, the question is whether this problem may be resolved by reducing its jurisdiction (as the Bill is doing), or by improving its capacity. 

Will the proposed amendments strengthen the role of the regulator?

When AERA was created in 2008, there were 11 airports with annual passenger traffic over 15 lakh.  With increase in passenger traffic across airports, currently 32 airports are above this threshold.  The Bill increases the threshold of annual passenger traffic for major airports to over 35 lakh.  With this increase in threshold, 16 airports will be regulated by AERA.  It may be argued that instead of strengthening the role of the regulator, its purview is being reduced. 

Before AERA was set up, the Airports Authority of India (AAI) fixed the aeronautical charges for the airports under its control and prescribed performance standards for all airports and monitored them.  Various committees had noted that AAI performed the role of airport operator as well as the regulator, which resulted in conflict of interest.  Further, there was a natural monopoly in airports and air traffic control.  In order to regulate the growing competition in the airline industry, and to provide a level playing field among different categories of airports, AERA was set up.  During the deliberations of the Standing Committee examining the AERA Bill, 2007, the Ministry of Civil Aviation had noted that AERA should regulate tariff and monitor performance standards only at major airports.  Depending upon future developments in the sector, other functions could be subsequently assigned to the regulator.

How would the Bill affect the regulatory regime?

Currently, there are 32 major airports (annual traffic above 15 lakh), and AERA regulates tariffs at 27 of these.  As per the Bill, AERA will regulate 16 major airports (annual traffic above 35 lakh).  The remaining 16 airports will be regulated by AAI.  Till 2030-31, air traffic in the country is expected to grow at an average annual rate of 10-11%.  This implies that in a few years, the traffic at the other 16 airports will increase to over 35 lakh and they will again fall under the purview of AERA.  This may lead to constant changes in the regulatory regime at these airports.  The table below provides the current list of major airports:

Table 1: List of major airports in India (as on March 2019) 

Airports with annual traffic above 35 lakh Airports with annual traffic between 15 and 35 lakh

Ahmedabad

Goa

Mumbai

Amritsar

Madurai*

Srinagar

Bengaluru

Guwahati

Patna

Bagdogra

Mangalore

Trichy*

Bhubaneswar

Hyderabad

Pune

Calicut

Nagpur

Varanasi

Chennai

Jaipur

Thiruvananthapuram

Chandigarh

Port Blair*

Vishakhapatnam

Cochin

Kolkata

 

Coimbatore

Raipur*

 

Delhi

Lucknow

 

Indore

Ranchi*

 

* - AERA does not regulate tariffs at these airports currently. 

Sources: AAI Traffic News; AERA website; PRS.