Earlier today, a Bill to raise maternity benefits was introduced and passed in Rajya Sabha.  The Bill amends the Maternity Benefit Act, 1961.  The Act regulates the employment of women during the period of child birth, and provides maternity benefits.  The Act applies to factory, mines, plantations, shops and other establishments.

Duration of maternity leave: The Act states that every woman will be entitled to maternity benefit of 12 weeks.  The Bill increases this to 26 weeks.  Further, under the Act, this maternity benefit should not be availed before six weeks from the date of expected delivery.  The Bill changes this to eight weeks. In case of a woman who has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.

Maternity leave for adoptive and commissioning mothers: Further, the Bill introduces a provision to grant 12 weeks of maternity leave to: (i) a woman who legally adopts a child below three months of age; and (ii) a commissioning mother.  A commissioning mother is defined as a biological mother who uses her egg to create an embryo implanted in another woman.  The 12-week period of maternity benefit will be calculated from the date the child is handed over to the adoptive or commissioning mother.

Informing women employees of the right to maternity leave: The Bill introduces a provision which requires every establishment to intimate a woman at the time of her appointment of the maternity benefits available to her.  Such communication must be in writing and electronically.

Option to work from home: The Bill introduces a provision that states that an employer may permit a woman to work from home.  This would apply if the nature of work assigned to the woman permits her to work from home.  This option can be availed of, after the period of maternity leave, for a duration that is mutually decided by the employer and the woman.

Crèche facilities: The Bill introduces a provision which requires every establishment with 50 or more employees to provide crèche facilities within a prescribed distance.  The woman will be allowed four visits to the crèche in a day.  This will include her interval for rest. Various countries provide maternity leave.  However, the duration of leave varies across different countries.[i]  We present a comparison of maternity leave available in different countries, as on 2014, below.

Sources: International Labour Organisation Report (2014); PRS.   [i]. “Maternity and Paternity at work: Legislation across countries”, International Labour Organisation Report (2014), http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_242615.pdf.      

Yesterday, the government circulated certain official amendments to the Constitution (122^nd Amendment) Bill, 2014 on GST.  The Bill is currently pending in Rajya Sabha.  The Bill was introduced and passed in Lok Sabha in May 2015.  It was then referred to a Select Committee of Rajya Sabha which submitted its report in July 2015.  With the Bill listed for passage this week, we explain key provisions in the Bill, and the amendments proposed. What is the GST? Currently, indirect taxes are imposed on goods and services.  These include excise duty, sales tax, service tax, octroi, customs duty etc.  Some of these taxes are levied by the centre and some by the states.  For taxes imposed by states, the tax rates may vary across different states.  Also, goods and services are taxed differently. The Goods and Services Tax (GST) is a value added tax levied across goods and services at the point of consumption.  The idea of a GST regime is to subsume most indirect taxes under a single taxation regime.  This is expected to help broaden the tax base, increase tax compliance, and reduce economic distortions caused by inter-state variations in taxes. What does the 2014 Bill on GST do? The 2014 Bill amends the Constitution to give concurrent powers to Parliament and state legislatures to levy a Goods and Services tax (GST).  This implies that the centre will levy a central GST (CGST), while states will be permitted to levy a state GST (SGST).  For goods and services that pass through several states, or imports, the centre will levy another tax, the Integrated GST (IGST). Alcohol for human consumption has been kept out of the purview of GST.  Further, GST will be levied on 5 types of petroleum products at a later date, to be decided by the GST Council.  The Council is a body comprising of Finance Ministers of the centre and all states (including Delhi and Puducherry).  This body will make recommendations in relation to the implementation of GST, including the rates, principles of levy, etc.  The Council is also to decide the modalities for resolution of disputes that arise out of its recommendations. States may be given compensation for any revenue losses they may face from the introduction of the GST regime.  Such compensation may be provided for a period of up to five years. Further, the centre may levy an additional tax, up to 1%, in the course of interstate trade.  The revenues from the levy of this tax will be given to the state from where the good originates.  Expert bodies like the Select Committee and the Arvind Subramanian Committee have observed that this provision could lead to cascading of taxes (as tax on tax will be levied).[i]  It also distorts the creation of a national market, as a product made in one state and sold in another would be more expensive than one made and sold within the same state. What are the key changes proposed by the 2016 amendments? The amendments propose three key changes to the 2014 Bill.  They relate to (i) additional tax up to 1%; (ii) compensation to states; and (iii) dispute resolution by the GST Council.

• Additional tax up to 1% on interstate trade: The amendments delete the provision.

• Compensation to states: The amendments state that Parliament shall, by law, provide for compensation to states for any loss of revenues, for a period which may extend to five years. This would be based on the recommendations of the GST Council.  This implies that (i) Parliament must provide compensation; and (ii) compensation cannot be provided for more than five years, but allows Parliament to decide a shorter time period.  The 2014 Bill used the term ‘may’ instead of ‘shall’.   The Select Committee had recommended that compensation should be provided for a period of five years.  This recommendation has not been addressed by the 2016 amendments.

• Dispute resolution: The GST Council shall establish a mechanism to adjudicate any dispute arising out of its recommendations. Disputes can be between: (a) the centre vs. one or more states; (b) the centre and states vs. one or more states; (c) state vs. state.  This implies that there will be a standing mechanism to resolve disputes.

These amendments will be taken up for discussion with the Bill in Rajya Sabha this week.  The Bill requires a special majority for its passage as it is a Constitution Amendment Bill (that is at least 50% majority of the total membership in the House, and 2/3rds majority of all members present and voting).  If the Bill is passed with amendments, it will have to be sent back to Lok Sabha for consideration and passage.  After its passage in Parliament, at least 50% state legislatures will have to pass resolutions to ratify the Bill. Once the constitutional framework is in place, the centre will have to pass simple laws to levy CGST and IGST.  Similarly, all states will have to pass a simple law on SGST.  These laws will specify the rates of the GST to be levied, the goods and services that will be included, the threshold of the turnover of businesses to be included, etc.  Note that the Arvind Subramanian Committee, set up by the Finance Ministry, recommended the rates of GST that may be levied.  The table below details the bands of rates proposed.

Several other measures related to the back end infrastructure for registration and reporting of GST, administrative officials related to GST, etc. will also have to be put in place, before GST can be rolled out. [For further details on the full list of amendments, please see here.  For other details on the GST Bill, please see here.]

A Bill to amend the Lokpal and Lokayuktas Act, 2013 was introduced and passed in Lok Sabha yesterday.  The Bill makes amendments in relation to the declaration of assets of public servants, and will apply retrospectively. Declaration of assets under the Lokpal Act, 2013 The Lokpal Act, 2013 provides for a mechanism to inquire into corruption related allegations against public servants.  The Act defines public servants to include the Prime Minister, Union Ministers, Members of Parliament, central government and Public Sector Undertakings employees, and trustees and officials of NGOs that receive foreign contribution above Rs 10 lakhs a year, and those getting a certain amount of government funding. [A June 2016 notification set this amount at Rs. 1 crore.] The Lokpal Act mandates public servants to declare their assets and liabilities, and that of their spouses and dependent children.  Such declarations must be filed by July 31^st every year.  They must also be published on the website of the Ministry by August 31^st. 2014 amendments proposed to the Lokpal Act In December 2014, a Bill to amend the 2013 Act was introduced in Lok Sabha.  Among other things, the Bill sought to modify the provision related to declaration of assets by public servants.  The Bill required that the public servant’s declaration contain information of all his assets, including: (i) movable and immovable property owned, inherited, acquired, or held on lease in his or another’s name; and (ii) debts and liabilities incurred directly or indirectly by him.  The Bill also said that declaration requirements for public servants under the Representation of the People Act, 1951 (for MPs), All India Services Act, 1951 (for senior civil servants), etc. would also apply. The Standing Committee that examined this Bill, in 2015, had recommended that the public servants should declare the assets and liabilities to their Competent Authority.  For example, for an MP, the competent authority would be the Speaker of Lok Sabha or Chairman of Rajya Sabha.  Such declarations should then be forwarded to the Lokpal to keep in a fiduciary capacity.  Both these authorities would be competent to review the returns filed by the public servants.  In light of such double scrutiny, the Committee recommended that public disclosure of such assets and liabilities would not be necessary. Further, the Committee also noted that family members of public servants are not obliged to disclose assets acquired through their own income. These disclosures may be in violation of Article 21 (right to privacy) or 14 (right to equality) of the Constitution.  However, the public servant must declare assets and liabilities of his dependents, and those acquired by him in the name of another.  This Bill is currently pending in Lok Sabha. The 2016 Bill and its position on declaration of assets The Amendment Bill, that was introduced and passed by Lok Sabha yesterday, replaces the provision under the Lokpal Act, 2013 related to the declaration of assets and liabilities by public servants.  While the new provision also mandates public servants to declare their assets and liabilities, it does not specify the manner of such declaration.  The Bill states that the form and manner of such declarations to be made by public servants will be prescribed by the central government.  Therefore, if passed by Parliament, the effect of the amendments will be the following:

1. Trustees and officers of certain NGOs will continue to be regarded as public servants for the purposes of the Prevention of Corruption Act, 1988 and the Lokpal Act, 2013. There is no differentiation in the treatment of government servants and trustees of NGOs.
2. The requirement for declaring assets and liabilities will continue to be applicable.
3. However, the Act will no longer require assets and liabilities of spouses and dependent children of public servants to be declared. It also removes the mandatory disclosure on the Ministry’s website.
4. That said, the details of the disclosure to be made will be notified by the central government.
5. It is not clear whether the earlier notification will automatically lapse, or whether it needs to be rescinded in light of the new amendments.

These implications will apply only if the Bill is passed by Rajya Sabha and gets the President’s assent before July 31, 2016.

The Insolvency and Bankruptcy Code, 2015 was introduced in Lok Sabha yesterday, as a Money Bill [Clarification: This is as per news reports.*  The text of the Bill does not indicate that it is a Money Bill].  In this context, we briefly outline the various types of Bills in Parliament, and highlight the key differences between Money Bills and Financial Bills. What are the different types of Bills? There are four types of Bills, namely (i) Constitution Amendment Bills; (ii) Money Bills; (iii) Financial Bills; and (iv) Ordinary Bills. What are the features of each of these Bills?

• Constitution Amendment Bills[i]: These are Bills which seek to amend the Constitution.

• Money Bills[ii]: A Bill is said to be a Money Bill if it only contains provisions related to taxation, borrowing of money by the government, expenditure from or receipt to the Consolidated Fund of India. Bills that only contain provisions that are incidental to these matters would also be regarded as Money Bills.[iii]

• Financial Bills[iv]: A Bill that contains some provisions related to taxation and expenditure, and additionally contains provisions related to any other matter is called a Financial Bill. Therefore, if a Bill merely involves expenditure by the government, and addresses other issues, it will be a financial bill.

• Ordinary Bills[v]: All other Bills are called ordinary bills.

How are these bills passed?

• Constitution Amendment Bills¹: A Constitution Amendment Bill must be passed by both Houses of Parliament. It would require a simple majority of the total membership of that House, and a two thirds majority of all members present and voting.  Further, if the Bill relates to matters like the election of the President and Governor, executive and legislative powers of the centre and states, the judiciary, etc., it must be ratified by at least half of the state legislatures.

• Money Bills[vi]: A Money Bill may only be introduced in Lok Sabha, on the recommendation of the President. It must be passed in Lok Sabha by a simple majority of all members present and voting.  Following this, it may be sent to the Rajya Sabha for its recommendations, which Lok Sabha may reject if it chooses to.  If such recommendations are not given within 14 days, it will deemed to be passed by Parliament.

• Financial Bills⁴: A Financial Bill may only be introduced in Lok Sabha, on the recommendation of the President. The Bill must be passed by both Houses of Parliament, after the President has recommended that it be taken up for consideration in each House.

• Ordinary Bills⁵: An Ordinary Bill may be introduced in either House of Parliament. It must be passed by both Houses by a simple majority of all members present and voting.

How is a Money Bill different from a financial bill? While all Money Bills are Financial Bills, all Financial Bills are not Money Bills.  For example, the Finance Bill which only contains provisions related to tax proposals would be a Money Bill.  However, a Bill that contains some provisions related to taxation or expenditure, but also covers other matters would be considered as a Financial Bill.  The Compensatory Afforestation Fund Bill, 2015, which establishes funds under the Public Account of India and states, was introduced as a Financial Bill.[vii] Secondly, as highlighted above, the procedure for the passage of the two bills varies significantly.  The Rajya Sabha has no power to reject or amend a Money Bill.  However, a Financial Bill must be passed by both Houses of Parliament. Who decides if a Bill is a Money Bill? The Speaker certifies a Bill as a Money Bill, and the Speaker’s decision is final.[viii]  Also, the Constitution states that parliamentary proceedings as well as officers responsible for the conduct of business (such as the Speaker) may not be questioned by any Court.[ix]

  [i]. Article 368, Constitution of India. [ii]. Article 110, Constitution of India. [iii]. Article 110 (1), Constitution of India. [iv]. Article 117, Constitution of India. [v]. Article 107, Constitution of India. [vi]. Article 109, Constitution of India. [vii]. The Compensatory Afforestation Fund Bill, 2015, introduced in Lok Sabha on May 8, 2015, http://www.prsindia.org/billtrack/the-compensatory-afforestations-fund-bill-2015-3782/. [viii]. Article 110 (3), Constitution of India. [ix]. Article 122, Constitution of India. [*Note: See Economic Times, Financial Express, The Hindu Business Line, NDTV ,etc.]

Earlier today, the Supreme Court struck down the two Acts that created an independent body for the appointment of judges to the higher judiciary. One of the Acts amended the Constitution to replace the method of appointment of judges by a collegium system with that of an independent commission, called the National Judicial Appointments Commission (NJAC).  The composition of the NJAC would include: (i) the Chief Justice of India (Chairperson) (ii) two other senior most judges of the Supreme Court, (iii) the Union Law Minister, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.  The other Act laid down the processes in relation to such appointments. Both Acts were passed by Parliament in August 2014, and received Presidential assent in December 2014.  Following this, a batch of petitions that had been filed in Supreme Court challenging the two Bills on grounds of unconstitutionality, was referred to a five judge bench.  It was contended that the presence of executive members in the NJAC violated the independence of the judiciary. In its judgement today, the Court held that the executive involvement in appointment of judges impinges upon the independence of the judiciary.  This violates the principle of separation of powers between the executive and judiciary, which is a basic feature of the Constitution.  In this context, we examine the proposals around the appointment of judges to the higher judiciary. Appointment of judges before the introduction of the NJAC The method of appointment of the Chief Justice of India, SC and HC judges was laid down in the Constitution.[i]  The Constitution stated that the President shall make these appointments after consulting with the Chief Justice of India and other SC and HC judges as he considers necessary.  Between the years 1982-1999, the issue of method of appointment of judges was examined and reinterpreted by the Supreme Court.  Since then, a collegium, consisting of the Chief Justice of India and 4 other senior most SC judges, made recommendations for persons to be appointed as SC and HC judges, to the President.[ii] Recommendations of various bodies for setting up an independent appointments commission Over the decades, several high level Commissions have examined this method of appointment of judges to the higher judiciary.  They have suggested that an independent body be set up to make recommendations for such appointments.  However, they differed in the representation of the judiciary, legislature and executive in making such appointments.  These are summarised below. Table 1: Comparison of various recommendations on the composition of a proposed appointments body

Sources: 121^st Report of the Law Commission, 1987; Report of the National Commission to Review the Working of the Constitution (NCRWC), 2002; A Consultation Paper on Superior Judiciary, NCRWC, 2001;  A National Judicial Commission-Report for discussion in the National Advisory Council, 2005; Fourth Report of the 2^nd Administrative Reforms Commission (ARC), ‘Ethics in Governance’, 2007; PRS. It may be noted that the Law Commission, in its 2008 and 2009 reports, suggested that Government should seek a reconsideration of the judgments in the Three Judges cases.  In the alternative, Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial appointments. Appointments process in different countries                   Internationally, there are varied methods for making appointments of judges to the higher judiciary.  The method of appointment of judges to the highest court, in some jurisdictions, is outlined in Table 2. Table 2: Appointment of judges to the highest court in different jurisdictions

Sources: Constitutional Reform Act, 2005; Canada Supreme Court Act, 1985; Constitution of the United States of America; Basic Law for the Federal Republic of Germany; Constitution of France; PRS. In delivering its judgment that strikes down the setting up of an NJAC, the Court has stated that it would schedule hearings from November 3, 2015 regarding ways in which the collegium system can be strengthened.

[i] Article 124, Constitution of India (Prior to 2015 Amendments)

[ii] S.P. Gupta vs. Union of India, AIR 1982, SC 149; S.C. Advocates on Record Association vs. Union of India, AIR 1994 SC 268; In re: Special Reference, AIR 1999 SC 1.

[iii].  Schedule 8, Constitutional Reform Act, 2005.

[iv].  Section 4(2), Supreme Court Act (RSC, 1985).

[v].  Statement by the Prime Minister of Canada on the retirement of Justice Morris Fish, http://www.pm.gc.ca/eng/news/2013/04/23/statement-prime-minister-canada-retirement-justice-morris-fish.

[vi].  Article II, Section 2, The Constitution of the United States of America.

[vii].  Article 94 (1), Basic Law for the Federal Republic of Germany.

[viii] Article 65, Constitution of France, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/constiution_anglais_oct2009.pdf.

Compulsory voting at elections to local bodies in Gujarat Last week, the Gujarat Local Authorities Laws (Amendment) Act, 2009 received the Governor’s assent.  The Act introduces an ‘obligation to vote’ at the municipal corporation, municipality and Panchayat levels in the state of Gujarat.  To this end, the Act amends three laws related to administration at the local bodies- the Bombay Provincial Municipal Corporation Act, 1949; the Gujarat Municipalities Act, 1963 and; the Gujarat Panchayats Act, 1993. Following the amendments, it shall now be the duty of a qualified voter to cast his vote at elections to each of these bodies.  This includes the right to exercise the NOTA option.  The Act empowers an election officer to serve a voter notice on the grounds that he appears to have failed to vote at the election.  The voter is then required to provide sufficient reasons within a period of one month, failing which he is declared as a “defaulter voter” by an order. The defaulter voter has the option of challenging this order before a designated appellate officer, whose decision will be final. At this stage, it is unclear what the consequences for being a default voter may be, as the penalties for the same are to be prescribed in the Rules.  Typically, any disadvantage or penalty to be suffered by an individual for violating a provision of law is prescribed in the parent act itself, and not left to delegated legislation.  The Act carves out exemptions for certain individuals from voting if (i) he is rendered physically incapable due to illness etc.; (ii) he is not present in the state of Gujarat on the date of election; or (iii) for any other reasons to be laid down in the Rules. The previous Governor had withheld her assent on the Bill for several reasons.  The Governor had stated that compulsory voting violated Article 21 of the Constitution and the principles of individual liberty that permits an individual not to vote.  She had also pointed out that the Bill was silent on the government’s duty to create an enabling environment for the voter to cast his vote.  This included updating of electoral rolls, timely distribution of voter ID cards to all individuals and ensuring easy access to polling stations. Right to vote in India Many democratic governments consider participating in national elections a right of citizenship.  In India, the right to vote is provided by the Constitution and the Representation of People’s Act, 1951, subject to certain disqualifications.  Article 326 of the Constitution guarantees the right to vote to every citizen above the age of 18.  Further, Section 62 of the Representation of Peoples Act (RoPA), 1951 states that every person who is in the electoral roll of that constituency will be entitled to vote.  Thus, the Constitution and the RoPA make it clear that every individual above the age of 18, whose name is in the electoral rolls, and does not attract any of the disqualifications under the Act, may cast his vote.  This is a non discriminatory, voluntary system of voting. In1951, during the discussion on the People’s Representation Bill in Parliament, the idea of including compulsory voting was mooted by a Member.  However, it was rejected by Dr. B.R. Ambedkar on account of practical difficulties.  Over the decades, of the various committees that have discussed electoral reforms, the Dinesh Goswami Committee (1990) briefly examined the issue of compulsory voting.  One of the members of the committee had suggested that the only effective remedy for low voter turn outs was introducing the system of compulsory voting.  This idea was rejected on the grounds that there were practical difficulties involved in its implementation. In July 2004, the Compulsory Voting Bill, 2004 was introduced as a Private Member Bill by Mr. Bachi Singh Rawat, a Member of Parliament in the Lok Sabha.  The Bill proposed to make it compulsory for every eligible voter to vote and provided for exemption only in certain cases, like that of illness etc.  Arguments mooted against the Bill included that of remoteness of polling booths, difficulties faced by certain classes of people like daily wage labourers, nomadic groups, disabled, pregnant women etc. in casting their vote.  The Bill did not receive the support of the House and was not passed. Another Private Member Bill related to Compulsory Voting was introduced by Mr. JP Agarwal, Member of Parliament, in 2009.  Besides making voting mandatory, this Bill also cast the duty upon the state to ensure large number of polling booths at convenient places, and special arrangements for senior citizens, persons with physical disability and pregnant women.  The then Law Minister, Mr. Moily argued that if compulsory voting was introduced, Parliament would reflect, more accurately, the will of the electorate.  However, he also stated that active participation in a democratic set up must be voluntary, and not coerced. Compulsory voting in other countries A number of countries around the world make it mandatory for citizens to vote.  For example, Australia mandates compulsory voting at the national level.  The penalty for violation includes an explanation for not voting and a fine.  It may be noted that the voter turnout in Australia has usually been above 90%, since 1924.  Several countries in South America including Brazil, Argentina and Bolivia also have a provision for compulsory voting.  Certain other countries like The Netherlands in 1970 and Austria more recently, repealed such legal requirements after they had been in force for decades.  Other democracies like the UK, USA, Germany, Italy and France have a system of voluntary voting.  Typically, over the last few elections, Italy has had a voter turnout of over 80%, while the USA has a voter turnout of about 50%. What compulsory voting would mean Those in favour of compulsory voting assert that a high turnout is important for a proper democratic mandate and the functioning of democracy.  They also argue that people who know they will have to vote will take politics more seriously and start to take a more active role.  Further, citizens who live in a democratic state have a duty to vote, which is an essential part of that democracy. However, some others have argued that compulsory voting may be in violation of the fundamental rights of liberty and expression that are guaranteed to citizens in a democratic state.  In this context, it has been stated that every individual should be able to choose whether or not he or she wants to vote.  It is unclear whether the constitutional right to vote may be interpreted to include the right to not vote.  If challenged, it will up to the superior courts to examine whether compulsory voting violates the Constitution. [A version of this post appeared in the Sakal Times on November 16, 2014]

On 12th November, 2014, the Chief Minister of the newly formed government in Maharashtra won a confidence vote in the Maharashtra State Assembly. This trust vote was done by a voice vote, the outcome of which was contested by opposition parties. In this context, M.R. Madhavan discusses the need for recorded voting in our legislatures and ideas for how this change can be brought about.