VIDHI CENTRE FOR LEGAL POLICY

Transcription

1 VIDHI CENTRE FOR LEGAL POLICY BETTER LAWS. BETTER GOVERNANCE. w w w. v i d h i l e g a l p o l i c y. i n L E G I S L A T I V E A D V I S O R Y P O L I C Y R E S E A R C H G O O D G O V E R N A N C E

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3 1 CONCEPT NOTE CONTEXT A universally recognised key to good governance is the need to have clear, coherent and implementable laws. Today, the conceptualisation and drafting of such laws requires a considerable degree of specialist knowledge. Specifically it requires persons with a sound grasp of policy issues combined with a close understanding of drafting and operation of laws. The Vidhi Centre for Legal Policy (Vidhi) is an independent and non-partisan legal policy advisory group set up to assist and advise the Government of India and state governments on law, regulation and policy. Comprising legal academics and practitioners, Vidhi s mission is to achieve good governance in India by impacting legislative and regulatory design. To this end, it offers its advisory expertise to governments, independent regulators and other agencies and instrumentalities of state. Vidhi is thus a completely independent institution acting as an exclusive resource for government, translating its policies into accurate, effective and implementable legal enactments. VIDHI AND THE FIVE-FOLD CHALLENGE Vidhi looks to make five key interventions in providing legal and policy advice and assistance to government: Ensuring Constitutionality: Provisions and laws are often drafted such that they are in conflict with the Constitution of India, or with relevant Supreme Court precedent. This makes litigation inevitable and provisions are liable to be struck down, after protracted judicial proceedings. For instance inadequate attention to the constitutionally required doctrine of separation of powers greatly delayed the coming into being of the National Company Law Tribunal and the Competition Commission of India, in turn impeding the creation of stable economic regulatory regimes. This difficulty can be easily remedied by ensuring constitutionality at the time of drafting, not at the time of implementation, as is the case today. Ensuring Coherence: Many laws are drafted without reference to or knowledge of other existing statutory enactments that cover a similar field. This leads to complications ranging from confusion and contradiction to the dilution of standards in specific instances. Again, the workload on the judiciary increases as courts are called upon to clarify and harmonise these differences. For example, the proposed amendments to the Prevention of Corruption (Amendment) Act not only provide a new definition of corruption that displaces existing jurisprudence entirely, but also has a different definition of corruption from the Prevention of Bribery of Foreign Public Officials and Public International Officials Bill, even though both Bills are supposed to tackle the same kinds of offences. Ensuring Compliance: Another challenge facing lawmaking and reform in India is compliance with international law. India is a signatory to several international instruments and is under an obligation to incorporate them into domestic law, or at the very least to not defeat their object and purpose. However Indian laws are often drafted in complete disregard of international law. This problem is only exacerbated when the statement of objects and reasons of an enactment states that the instrument is intended to comply with international law, while in substance it does not. The Prevention of Torture Bill, 2010 is a case in point. It is thus necessary to ensure that the body of international law which India is obliged to comply with is carefully researched and understood while framing domestic legislation. Ensuring Clarity: The endemic problem afflicting lawmaking in India is that of badly drafted legislation provisions that are circular, contradictory, vague and unclear. These provisions fail to communicate the meaning of the law effectively, lead to deficient implementation and run the risk of adverse judicial interpretations. Unclear and confusing laws have contributed, for example, to India being ranked 131 out of 189 countries on the Ease of Doing Business by the World Bank. There is a need to ensure that Indian laws are clear and specific in both form and substance. Ensuring Contemporaneity: Finally, an increasingly globalised world gives us the opportunity to learn from the experiences of other similarly positioned countries. Foreign law and comparative domain expertise is being increasingly recognised as an important source of information, and courts have been referring to these with increasing regularity. The laws in other jurisdictions provide valuable lessons for both the development of a branch of law and the impact and efficacy of certain formulations. Indian law-making often does not benefit from progressive developments in other jurisdictions, and it is desirable that contemporary comparative developments are systematically factored into this process.

4 2 SERVICES At Vidhi, we aim to respond to this five-fold challenge by being engaged by Ministries of the Government of India and State governments, Standing Committees of Parliament and State Legislatures, independent regulators, governmental commissions and other public agencies, to ensure that better laws are drafted and workable systems implemented. Specifically, we propose an agenda structured around the following services: 1. Research and Legal Analysis Our key focus is on the detailed and rigorous legal analysis of Bills, Rules and other enactments to ensure that the end product satisfies the fivefold objectives of legislative design outlined above. We collate this analysis in a comprehensive report suggesting concrete reform proposals. The report generally includes: A detailed clause by clause analysis with the specific aim of ensuring crisp and clear legislative drafting so as to reduce ambiguity and deliver policy goals; Recommendations for appropriate legal reform to enable enactments to pass tests of constitutionality if challenged, as well as to ensure that they comply with the other standards mentioned above; Recommendations for appropriate policy reform if the legislative policy is to be sound in principle and efficacious in practice. 2. Assistance in Drafting of New Laws and Rules On several occasions, the lack of legal input at the stage of conceptualisation of law is often the reason for its poor drafting. We focus on intervening in this process by assisting policy-makers in ministries and departments of government with the legal inputs necessary to ensure that the first draft of the law that is produced is itself legally sound. This includes: Drafting provisions that are constitutionally compatible; Accounting for best practices worldwide and relevant aspects of international law; Securing coherence with existing legislation and avoiding legislative overlaps. 3. Monitoring and Review of Existing Laws and Systems As important as the need for passing effective new legislation is the need to monitor the functioning of existing laws and systems. Currently, review mechanisms for laws and institutions are ad hoc and unsystematic. Monitoring is also hampered by inadequate data collection. International best practices suggest that such monitoring and review ought to take place every three years. As part of our endeavour we hope to be engaged by government in order to undertake comprehensive review of existing legislation and regulations. Such review will include: Data collection (qualitative and quantitative) and analysis to assess the operation of laws and systems; Doctrinal legal analysis on the interpretation of provisions by courts and related trends; Proposals for reform on the basis of the research above. ACTIVITIES 1. Independent Legal Research There are several areas of law that are widely acknowledged as requiring reform. However both the political economy for reform as well as the research necessary to buttress it are absent. We will take up 6 independent research projects annually in order to fill this gap. By formulating a report based on hard legal and empirical data and organising workshops and conferences involving relevant stakeholders around it, we hope to underline the importance of such proposed reform as well as demonstrate a possible approach to be adopted. The identified subjects are chosen on the basis of three parameters: Significance to India s ambition of being an equitably growing nation; Subjects where quality legal and empirical research is lacking; Subjects that match the competence of our Fellowship. 2. SCOIblog Judgments of the Supreme Court of India constantly make headlines due to their widespread impact. However there remains the need for a dedicated space for reportage and analysis of such judgments, ongoing cases, upcoming petitions and the general functioning of the Court. To this end, we have launched a website - SCOIblog.in, to create a repository of information about the Supreme Court. Specifically, the website is directed at an engaged non-legal audience, particularly the media, providing easy access to independent reporting and informed debate on the Supreme Court. 3. Broadening Systemic Participation in Law-making We are equally focused on building interest and systematic avenues of participation in law-making amongst citizens in India. To this end, we hope to: Work with members of the media to help develop accurate understanding of complex legislation; Work with student groups in law schools and engage them in our research and analysis; Develop relationships with independent experts in non-legal subject areas to improve the content of our analysis, while providing cross-disciplinary inputs into the law-making process; Work with international experts in certain fields on specific reports to build on the quality of advice being rendered; Make regular contributions to academic journals and scholarship; Write regular columns in newspapers, on our website and other online fora to build momentum and awareness on topical issues being considered by the Parliament.

5 WHO WE ARE The core group of Vidhi experts comprises a set of Indian lawyers and legal academics from the foremost academic and professional institutions in the world. In addition, Vidhi draws from a pool of non-resident experts in diverse non-legal fields ranging from finance and economics to education and health policy, who provide necessary domain expertise. EXPERTS Alok Prasanna Kumar, B.A. LL.B.(Hons.) (NALSAR, Hyderabad), BCL (Oxon). Alok has practised as a Junior Advocate in the chambers of Solicitor General of India, Mr Mohan Parasaran. Alok has assisted Mr Parasaran in cases relating to International Taxation, Constitutional Law, Administrative Law, among other areas of law. At Vidhi, he is a Senior Resident Fellow focusing on constitutional law and taxation law. Arghya Sengupta, B.A. LL.B. (Hons.) (NLSIU, Bangalore), Rhodes Scholar, BCL, M.Phil. (Oxon). Arghya taught for two years as a Lecturer in Administrative Law at Pembroke College, Oxford. At Vidhi, he is the Research Director and Senior Resident Fellow focusing on administrative law, media law and allied topics in comparative public law. Debanshu Mukherjee, B.A. LL.B. (Hons.) (HNLU, Raipur), BCL (Oxon). Debanshu is a corporate lawyer with four years of experience in advising Indian and foreign corporate houses on transactional and regulatory matters during his tenure with AZB & Partners, a full-service law firm. At Vidhi, he is a Senior Resident Fellow specialising in corporate law and financial regulation. Dhvani Mehta, B.S.L. LL.B. (GLC Mumbai), Rhodes Scholar, BCL, M.Phil. (Oxon). Dhvani is in the final year of her D.Phil. In Law at Oxford University working on contemporary issues in environmental law. At Vidhi she is a Senior Resident Fellow focusing on environmental and energy law. Faiza Rahman, B.A. LL.B. (Hons.) (NALSAR, Hyderabad). Faiza worked for two years in the Luthra & Luthra Law Offices, Mumbai in the Capital Markets team. At Vidhi, she is a Research Fellow focusing on public law and judicial reforms. Ritwika Sharma, B.A. LL.B (Hons.) (Amity Law School Delhi), LL.M. (NALSAR, Hyderabad). Ritwika completed her Master s thesis on issues of constitutional law and legal theory. At Vidhi she is a Junior Research Fellow focusing on public law and judicial reform. Shreya Garg, B.B.A. LL.B. (Hons.) (NLU, Jodhpur). Shreya worked for two years in the Luthra & Luthra Law Offices, New Delhi, in the Mergers and Acquisitions team and the Real Estate team. At Vidhi, she is a Research Fellow focusing on corporate law and financial regulation. Shubhangi Bhadada, B.A. LL.B. (Hons.) (NLSIU, Bangalore), BCL, (Oxon). Shubhangi worked for two years in the Luthra & Luthra Law Offices, New Delhi in the Mergers and Acquisitions team. She was an intern in the Trial Chambers of ICTY from January to May At Vidhi, she is a Research Fellow focusing on international law and corporate law. Srijoni Sen, B.A. LL.B. (Hons.) (NLSIU, Bangalore), LL.M. (Columbia). Srijoni worked with McKinsey & Company as a Business Analyst for two years, and subsequently worked on electoral reform issues at the non-profit Association for Democratic Reforms. At Vidhi, she is a Senior Resident Fellow focussing on election laws and social welfare policy. Yashaswini Mittal, B.A. LL.B (Hons.) (JGLS, Delhi). Yashaswini has previously interned with UNHCR, New Delhi and the UNMICT, Arusha, Tanzania. At Vidhi she is a Junior Research Fellow focusing on a wide range of issues relating to public laws. NON-RESIDENT EXPERTS Abhishek Bhattacharya, Associate, Centre for Civil Society Adarsh Varghese, Senior Associate, AZB & Partners Aditi Dani, Advocate, Supreme Court of India Amanda Gilbertson, Post-Doctoral Fellow, University of Melbourne Amba Salelkar, Fellow, Inclusive Planet Centre for Disability Law and Policy Amol Verma, Resident, Internal Medicine, Canada Aniruddha Jairam, Ph.D. Candidate in Comparative Politics, U. Penn. Anirudh Krishnan, Advocate, Madras High Court Anisha Gopi, Advocate, Karnataka High Court Anisha Sharma, D.Phil Candidate, (Econ.), Oxford Aarthi Rajan, Advocate, Supreme Court of India BN Suchindran, Advocate, Madras High Court Gautam Bhatia, LLM Candidate, Yale Law School John Feddersen, CEO, Aurora Energy Research Krishnaprasad KV, M.Phil Candidate (Law), Oxford Leah Verghese, SIPA Candidate, Columbia University Lekha Sridhar, Advocate, Supreme Court of India Nandan Kamath, Proprietor, The Law Offices of Nandan Kamath, Bangalore Nikhil Kanekal, Journalist, The Deccan Herald Poornima Hatti, Partner, Samvad Partners Rishikesh Ram Bhandary, PhD. Candidate, The Fletcher School of Law and Diplomacy Rohan Paul, Co-founder, Assistive Technologies Group Ryan Goss, Assistant Professor, ANU, Canberra Saurabh Bhattacharjee, Associate Professor, NUJS Sidharth Chauhan, Assistant Professor, NALSAR Sowmya Kumar, LLM Candidate, Queen Elizabeth College Subramanian Natarajan, Candidate for the Masters in Law and Finance, University of Oxford Udayarkar Rangarajan, Advocate, Madras High Court Varun Hallikeri, Infrastructure Consultant, Washington DC Zoheb Hossain, Advocate, Supreme Court of India 3

6 4 BOARD OF DIRECTORS Dr. A.S. Ganguly, Member of Parliament, Rajya Sabha Prof. Govindraj Hegde, Associate Professor, National Law School of India University Ms. Ireena Vittal, Strategic Business Advisor Mr. Uday Shankar, CEO, Star India Dhvani Mehta, An iron fist in a velvet glove, Economic and Political Weekly, 2 August, 2014 Vidhi Centre for Legal Policy, Ten legal reforms that must be on the Modi government's agenda, Scroll.in, 28 July, 2014 Arghya Sengupta, Reform judicial appointments, The Times of India, 1 July, 2014 Srijoni Sen, Arghya Sengupta, Cutting through legal clutter, The Hindu, 20 June, 2014 MENTOR GROUP PATRONS IN THE MEDIA Vidhi s young employees, or Fellows as they are called, are all lawyers and are inspired by the possibility of using their legal skills to make a difference in how this democracy operates. Mint, 1 November, 2013 So successful has been their intervention, that the four now face an avalanche of s from other students keen to intern with the PLBS and sign up for future projects. Gautam Saha, Partner, AZB & Partners Neha Jain, Associate Professor of Law, University of Minnesota Law School R.V. Anuradha, Partner, Clarus Law Associates Rajdeep Sardesai, Journalist Reetika Khera, Assistant Professor, IIT Delhi Ritin Rai, Advocate, Supreme Court of India Sachin Malhan, Executive Partner, Changemakers Program, Ashoka Shamnad Basheer, Founder, IDIA and SpicyIP Somasekhar Sundaresan, Partner, JSA, Advocates and Solicitors Vikram Raghavan, Contributing Editor, Law and Other Things The Mahindra Group Pirojsha Godrej Foundation Rohini Nilekani Mohandas Pai Vikram Sarabhai Foundation Arvind Datar 1. Vidhi in the Media 2. By Vidhi Experts Open Magazine, 18 September, 2010 Arghya Sengupta, Indo-US Nuclear Deal: Still a work in progress, The Financial Express, 27 January, 2015 Dr. Ranjit Roy Chaudhury, Arghya Sengupta, A steel frame for clinical trials, The Hindu, 8 October, 2014 Alok Prasanna Kumar, Tilting at the windmills (again), Economic and Political Weekly, 23 August, 2014 REPORTS Operationalising India s Nuclear Agreements: Issues and Solutions on Nuclear Liability Halting Tribunalisation: Impact of the Supreme Court s Judgment in Madras Bar Association v. Union of India on Extant Tribunals Towards the Rule of Law: 25 Legal Reforms for India - A briefing book for the new government State of the Nation s Tribunals: Part 1 - The Telecom Disputes Settlement and Appellate Tribunal State of the Nation s Tribunals: Part 2 - The Intellectual Property Appellate Board Crowdfunding in India - A Response to the SEBI Consultation Paper (submitted to SEBI) A Briefing Document on The Civil Liability for Nuclear Damage Bill, 2010 (submitted to the Parliamentary Standing Committee, invited as Expert Witnesses for Oral Hearing) ENGAGEMENTS Assisted the Bankruptcy Law Reform Committee set up by the Ministry of Finance in drafting a report on reforming the corporate insolvency regime in India Appointed by the Reserve Bank of India to prepare concept papers on several areas in financial regulation and banking law Assisted the Law Commission of India with research and drafting of the 253rd Report on the Bill for the introduction of a Commercial Division and Commercial Appellate Division in High Courts Prepared a note for the Food Safety and Standards Authority of India highlighting conceptual issues in the Food Safety and Standards Act, 2006 Assisted the Law Commission of India with research and drafting of the 248th-251st Reports on Obsolete Laws Warranting Immediate Repeal Advised the Department of Expenditure, Ministry of Finance, Government of India in researching and drafting the Public Procurement Bill, 2012 Ongoing legal inputs on the Right to Education Act for the Central Square Foundation Research on petitions and arguments for Mr. Arvind Datar, Senior Advocate, Supreme Court of India Vidhi Centre for Legal Policy is a not-for-profit company registered under Section 25 of the Companies Act, For more information and contact details, please visit our website:

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8 Vidhi Centre for Legal Policy LEGISLATIVE ADVISORY POLICY RESEARCH GOOD GOVERNANCE