So far, both Houses of Parliament have been witnessing disruptions. At the beginning of the session, 23 Bills were listed for passage, and 20 were listed for introduction. Two weeks in, one Bill has been passed by both Houses, and three others by Lok Sabha. These include Bills dealing with the re-haul of consumer protection laws, regulation of surrogacy, and recognition of transgender persons. Six Bills have been introduced. These include three Bills which replace the Ordinances currently in force, and a Bill to regulate dam safety. In this blog, we discuss the key features of some of these Bills.
Enhancing rights of consumers
The Consumer Protection Bill, 2018 replaces the Consumer Protection Act, 1986. It was introduced in view of the significant changes in the consumer market landscape since the 1986 Act. It introduces several new provisions such as enabling consumers to make product liability claims for an injury or harm caused to them, nullifying unfair contracts which impact consumer interests (such as contracts which charge excessive security deposits), and imposing penalties for false and misleading advertisements on manufacturers, as well as on the endorsers of such advertisements.
The Bill also sets up Consumer Dispute Redressal Commissions (or courts) at the district, state, and national level, to hear complaints on matters related to deficiencies in services or defects in goods. While these Commissions are also present under the 1986 Act, the Bill increases their pecuniary jurisdiction: District Commissions will hear complaints with a value of up to one crore rupees; State Commissions between one and ten crore rupees; and National Commission above 10 crore rupees. The Bill also sets up a regulatory body known as the Central Consumer Protection Authority. This Authority can take certain actions to protect the rights of consumers as a class such as passing orders to recall defective goods from the market, and imposing penalties for false and misleading advertisements.
Recognising transgender persons and their rights
Last week, Lok Sabha also passed the Transgender Bill, 2018. This Bill seeks to recognise transgender persons, confers certain rights and entitlements on them related to education, employment, and health, and carves out welfare measures for their benefit. The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender-queers, and includes persons having such socio-cultural identities as kinnar, hijra, aravani, and jogta. The Bill requires every establishment to designate one person as a complaint officer to act on complaints received under the Bill.
The Bill provides that a transgender person will have the right to self-perceived gender identity. Further, it also provides for a screening process to obtain a Certificate of Identity, certifying the person as ‘transgender’. This implies that a transgender person may be allowed to self-identify as transgender individual, but at the same time they must also undergo the screening process to get certified as a transgender. Therefore, it is unclear how these two provisions of self-identification and an external screening process will reconcile with each other.
Regulating surrogacy and overhauling the Medical Council of India
The Surrogacy Bill, 2017 which regulates altruistic surrogacy and prohibits commercial surrogacy was also passed in Lok Sabha. Surrogacy is a process where an intending couple commissions an eligible woman to carry their child. In an altruistic surrogacy, the surrogate mother is not given any monetary benefit or reward, and the arrangement only covers her medical expenses and health insurance. The Bill sets out certain conditions for both the intending couple and the surrogate mother to be eligible for surrogacy. The intending couple must be Indian citizens, be married for at least five years, and at least one of them must be infertile. The surrogate mother must be a close relative of the couple, must be married and must have had a child of her own. Further, a surrogate mother cannot provide her own gametes for surrogacy.
The surrogate mother has been given certain rights with regard to the procedure of surrogacy. These include requiring her written consent to abort the surrogate child, and allowing her to withdraw from the surrogacy at any time before the embryo is implanted in her womb.
Another key Bill which was listed for passage in Lok Sabha this session but could not be taken up is the National Medical Commission Bill, 2017 (NMC Bill). Several amendments to this Bill were introduced in Lok Sabha last week. The NMC Bill seeks to replace the Medical Council of India, with a National Medical Commission. It introduces a common final year undergraduate medical examination called the National Exit Test which will also grant the license to practice medicine. Only medical students graduating from a medical institute which is an institute of national importance will be exempted from qualifying this National Exit Test. The Bill also gives the NMC the power to frame guidelines to decide the fees of up to 50% of seats in private medical colleges and deemed universities. The NMC may also grant limited license to certain mid-level practitioners connected with the medical profession to practice medicine. The qualifying criteria for such mid-level practitioners will be determined through regulations, and they may prescribe specified medicines in primary and preventive healthcare.
Regulating dam safety
The Dam Safety Bill, 2018 was introduced in Lok Sabha and applies to all specified dams across the country. These are dams with: (i) height more than 15 metres, or (ii) height between 10 metres to 15 metres and subject to certain additional design and structural conditions. It seeks to provide for the surveillance, inspection, operation and maintenance of specified dams for prevention of dam failure related disasters. It creates authorities at the national and state level to formulate policies and regulations on dam safety and implement them. It also puts certain obligations on dam owners by requiring them to provide a dam safety unit in each dam, among other things.
When the Bill was being introduced, few opposition members raised objections on the grounds of Parliament’s legislative competence to make a law on dam safety which applies to all states. They gave the example of the previous Dam Safety Bill, 2010, which applied only to the states of Andhra Pradesh and West Bengal who had adopted resolutions requiring Parliament to pass a law on dam safety.
So far the winter session has seen poor productivity with Lok Sabha working for 14% of its scheduled time, and Rajya Sabha for 5%. This is one of the least productive sessions of the 16th Lok Sabha. This is also the last major session before the dissolution of the 16th Lok Sabha. Both Houses will meet tomorrow after the Christmas break. With a packed legislative agenda, it is essential for Parliament to function in order to discuss and deliberate the Bills listed. However, with a limited number of sitting days available in the ongoing session and continued disruptions, it remains to be seen if Parliament will be able to achieve its legislative agenda.
- This post is a modified version of an article published by The Wire on December 26, 2018.
In today's Opinion piece, in the Indian Express, we discuss how enacting hasty new legislation in response to public events may not be the answer. The recent spot fixing controversy in the Indian Premier League has brought the issue of betting in sports back into the limelight. As a result, public debate around betting, and steps that need to be taken to prevent the recurrence of such events, is gaining traction. The government's response to this incident has been somewhat predictable. The minister of state for sports has reportedly stated that his ministry is committed to putting in place new legislation to deal with the menace of fixing in sports. This approach to law making points towards a growing trend of initiating policy and legislative decisions as a reaction to public events. This is not something new. The Mumbai terror attack in 2008 was the catalyst for the enactment of the National Investigation Agency Act, and the brutal rape and murder of a young girl in Delhi led to the overhaul of India's penal code to ensure stricter penalties for crimes against women. Both these bills were passed without effective scrutiny, as they were not referred to a parliamentary standing committee for examination. Events in the country may, on occasion, highlight gaps in our policy and legislative framework. However, they often point out the ineffectiveness of existing laws and the lack of proper implementation. And that is not always a result of not having enough laws in the country. There are more than a 1,000 Central laws and over 15,000 state laws. The problem lies with our law-making process, which is ad hoc in nature. It is geared towards churning out legislation that is not entirely evidence based and does not take the feedback of different stakeholders into account. In its reports, the National Commission to review the working of the Constitution had observed that "our legislative enactments betray clear marks of hasty drafting and absence of Parliament scrutiny from the point of view of both the implementers and the affected persons and groups". Take, for example, the Gram Nyayalaya Act, which establishes village courts to provide people with easy access to justice and reduce the case law burden on the court system. Structured feedback from villagers, whom this act is trying to empower, prior to introducing the bill in Parliament would have given valuable insights about implementation challenges. A comprehensive study to examine the impact that village courts would have in reducing pendency in the judicial system would have provided hard numbers to substantiate what types of cases should be adjudicated by the village courts. A detailed financial analysis of the cost implications for the Central and the state governments for implementing the law would have helped policymakers decide on the scale and effectiveness of implementation. In the absence of these studies, there is no way to measure whether the law has been effective in giving villagers easy access to justice and in reducing the burden on the judicial system. The importance of stakeholder consultation was recently stressed by the parliamentary committee examining the land acquisition bill. In its report on the bill, the committee recommended that, "before bringing in any bill in future, the government should ensure wider, effective and timely consultations with all relevant and stakeholders so that all related issues are addressed adequately." Rajya Sabha MP N.K. Singh, while testifying before the parliamentary standing committee on the National Food Security Bill, had drawn the attention of the committee towards the need for an accurate financial memorandum accompanying the bill, to "avoid serious consequences in the implementation of the bill." The National Advisory Council has also suggested a process of pre-legislative scrutiny of bills and delegated legislation. In its approach paper, the Financial Sector Legislative Reforms Commission had suggested that delegated legislation should also be published in draft form to elicit feedback and that a cost benefit analysis of the delegated legislation should be appended to the draft. New laws can have a significant impact on the lives of people, so it is important that our law-makers enact "effective laws". For this to happen our law-making process needs to evolve. While there will always be public pressure for new laws, the solution lies in ensuring that the law-making process is robust, consultative and deliberative. The solution to addressing policy opportunities does not always lie in making new laws but in ensuring that whatever law is enacted is well thought out and designed to be effective.
