Patent is one of the pillars of IPR and it gives its owners exclusionary rights over the invention.

The word patent is derived from the Latin word ‘Patere’ which means ‘to open’ or ‘lying open’.

Patent is defined as a constitutional privilege granted by the government to inventors, and to other persons deriving their rights from the inventor.

It is a domination right approved by the Government to exclude others from exploiting or using a particular invention. This exclusive monopoly granted by way of patent is a cartel right, which offers exclusivity to the patentee to exploit the invention for 20 years after which it falls to the public domain.

A Patent granted under the provisions of the Patents Act, 1970[1] enables the patentee exclusive right to make, use, exercise, sell or distribute the patented article or substance, and to use or exercise the patented process. The act seeks to provide for legal protection of inventions. It even helps in identifying emerging technologies and further emerging areas.

The objective of the patent law is to provide a right to owner of the patent for a certain period of time for disclosing its invention, to use it and to practice that invention and make it work; therefore encouraging scientific research, new technology, stimulate new inventions of commercial utility and pass invention into public domain after the expiry of the fixed period of the monopoly.

If the grant of the patent is for a product, then the inventor has a right to prevent others from making, using, offering for sale, selling or importing the patented product in India.

If the patent is for a process, then the inventor has the right to prevent others from using the process, using the product directly obtained by the process, offering for sale, selling or importing the product in India directly obtained by the process.

WHO CAN APPLY FOR PATENTS?

1. True and first inventor of the invention;
2. Assignee of the true and first inventor of the invention;
3. Legal representative of the deceased person who was entitled to immediately make such application before his death.

An application can be made by any of the above persons either alone or jointly with any other person(s).

CONDITIONS OF PATENTABILITY

An invention must meet several standards if it needs to be eligible for patent protection. These includes:-

• Most expressively, that the invention must consist of a patentable subject matter,
• The invention must be industrially useful,
• It must be novel (new),
• It must unveil a sufficient “inventive step”, and
• The complete revelation of the invention in the patent application must meet assured standards.

The three main patent eligibility criteria are described as below:

1. Novelty

Novelty is a basic requirement in any examination and is an undisputed condition of patentability. An invention is new if it is not anticipated by the prior art.

1. Inventive Step (Non-Obviousness)

In relation to the requirement of inventive step, one needs to seek answer to the question as to “whether the invention would have been obvious to a person having ordinary skill in the art or not” in order to determine in the examination as to substance.

1. Industrial application

In order to be patented, an invention must have an industrial application.

Section 2(1)(ac) of The Patents Act, 1970, states about “capable of industrial application” if any invention can be made or used in any kind of industry, then it is known to be a subject matter with industrial capability.

In today’s scenario, the aggressive and targeted patenting is the need of the hour; in order to encourage more innovations and research and development and to attain monopoly right over their intellectual work. The traditional patent search technologies were so complex, and patent databases have had become so large, that comprehensive patent searches could take days to execute and the need was felt to optimize both the search process and the ability to deliver actionable observation by getting advanced analysis tools; and hence in India, there was adoption of a specified procedure set to file Patent.

The very first recommendable step in patent registration procedure is to perform a detailed search to determine the chances of getting a patent on the basis of eligibility criteria set.

The next step is to prepare an application for registration.

There are two different types of patent registration application: Provisional and Complete.

Provisional Application– It is often the first or transitory application filed in respect of an invention which is still in the experiment stage but have a clear thought behind the innovation, and usually contains only a brief description of the invention.

As the word ‘provisional’ suggests, it is not a final legal documentation with respect to patency and is suggested to file only if the inventor has incomplete information or just an idea and have an intention to get some time period to develop the product or gain complete information of the invention.

And once this application is filled and accepted, then the applicant can put the tag of “patent pending” on the product desired to be patented and due to this, he enjoys all the patent rights on that invention.

It must be noted that within twelve months from the date filing of the provisional specification, original or complete specification must be filed and it implies that the inventor needs to conclude the innovation and to assess its marketability potential within such period.

Original or Complete Application– It consists of full description and disclosure of the invention; stating its title, field of invention, the background of the invention, the description of the related art, drawbacks of the prior art, the summary of the invention, the brief description of the figures, the detailed description of the preferred embodiments, claims and abstract.

In case where the product or process invented is already completed, there is no necessity of temporary application. The inventor can directly file by way of original or complete application with all the requirements at once.

Next, Filing and Prosecuting Patent Applications-

The procedure for the grant of a patent starts with filing of the patent application and paying off the prescribed fee at the patent office or online, and then after the publication of the application, filing of request for examination, in the prescribed form.

The applications are examined significantly and a first examination report stating the objections, if any, is communicated to the applicant. Application may be amended in order to meet these objections.

If there is failure of complying with the objections, the application will be left there and then.

After complying off the requirements, the application is published in the Official Journal. Patent will be granted if the application is found to be in order. Then, the application and other related documents will be open for public inspection. Thereafter, at any time between granting and before expiration of period of one year from the date of publication, there is availability of provision regarding opposition on substantive grounds. And after the expiration of the said period and in case of non- objection, final patent is issued.

COMPLETE LICENSING

Compulsory License is an important part of the Patent system. The 1970 Act by way of several amendments explored the phenomenon of compulsory licensing and the grant of compulsory license that are contained in the section 84 to 92 of the Act.

The compulsory license can be granted in India at any time after the expiration of three years from the date of the sealing of a patent, any person interested can make an application to the Controller for grant of compulsory license on patent on any of the below mentioned grounds as per section 84(1)of the Act[2]:

1. If reasonable requirements of the public have not been satisfied;
2. If the patent invention is not available to the public at an affordable price; and

iii. If the patent invention is not worked in the territory of India.

Types of patent licenses

There are two types of patent licenses as mentioned below:

Exclusive license: A patent owner transfers all aspects of ownership to the licensee only retaining the title to the patent. The patent owner surrenders all rights under the patent (including the right to sue for infringement and the right to license) to the licensee.

The licensee obtains the right to sub-license the patent and sue for patent infringement. However, the exclusivity can be limited by a field of use as per the contractual obligations (written or oral), like, the patent owner promised the licensee that for the specified filed of use, nobody else will be licensed.

Non-exclusive license: By granting a non-exclusive license, the patent owner principally promises not to sue the licensee for patent infringement. It is assumed that acquiring this type of license, the licensee acquires the freedom to operate in the space protected by the licensed patent, but this may depend on whether the licensee’s products infringe other patents or not.

[1] http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf

[2] https://indiankanoon.org/doc/799603/

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Bhimrao Ramji Ambedkar 

He was an Indian jurist, economist, politician and social reformer, who inspired the Dalit Buddhist movement and campaigned against social discrimination towards the untouchables (Dalits). He was British India’s Minister of Labour in Viceroy’s Executive Council, Chairman of the Constituent Drafting committee, independent India’s first Minister of Law and Justice, and considered the chief architect of the Constitution of India. 

Mahatma Gandhi 

Before being the ideal figure of advocating non violence movement, he spent almost 25 years as a lawyer. Over his career as lawyer, he became a barrister in England, an advocate in India and finally an attorney in South Africa, all with developing a motive for social justice which ultimately became his legacy. 

His famous saying, “The duty of a lawyer is always to place before the judges, and to help them to arrive at the truth, never to prove the guilty as innocent”, clearly defines how he was developed as a person due to the profession, who gave up the practice of law and devoted himself to public service. He played a key role in gaining India’s independence from colonisation of Britain. 

Nelson Mandela

The only Native African Student who went on to study law at the University of Witwatersrand in 1943, though due to his commitment towards politics and neglecting his studies, he failed his final year exam three times before finally leaving the university without a degree. Later, he qualified as a lawyer in 1952 by obtaining an Attorney’s Diploma and founded South Africa’s first black law firm, Mandela & Tambo with his friend, Oliver Tambo with a motive of providing affordable and easily accessible means for black Africans to access justice. 

His practice of law and incisive mind served him well as a statesman, allowing him to build upon the political and legal ideas he formed as a leader of the African National Congress in crafting a post-apartheid nation. 

Barack Obama

Majoring in Political Science, he moved to Chicago and accepted a job as a community leader but had to face subsequent clashes with the bureaucracy of city hall. As a thought, he recalled that “I just can’t get things done here without a law degree”. The drive to make a difference pushed him to enroll at Harvard Law School, where he graduated magna cum laude, thereafter beginning his career as a civil rights attorney. He also served as professor at the University of Chicago Law School, where he was highly regarded by his students.  

Command of both grassroots activism and the best use of existing power structures arguably proceeds what it takes to be a successful politician. 

Vladimir Putin 

Vladimir Putin is more renowned for his hard-line leadership style, uncompromising foreign policy, and well-crafted tough guy image than for his legal knowledge. However, Russia’s head of state studied law at Russia’s oldest law school, St Petersburg State University (formerly Leningrad State University). While Putin has never practiced as a lawyer, he has applied his legal knowledge in his role as both a politician and a KGB operative. 

Fidel Castro

Much of Castro’s political ideology was formed during his early adulthood while studying law at the University of Havana. He took to student activism shortly after his admission in 1945 and made headlines in several newspapers for a speech condemning the corruption of the then-president of Cuba, Ramón Grau. His prominence in anti-government movements grew throughout his university career and persisted until his certification as a Doctor of Law in 1950. 

Upon graduating, Castro co-founded a legal partnership primarily concerned with providing aid to poor Cubans. The venture was not profitable, however, and Castro subsequently joined the Cuban People’s Party and began a foray into politics. In 1953 he began a guerrilla war against the Batista regime, and by 1959 had become the effective head of state in Cuba. 

Hillary Clinton 

The  67th Secretary of State and a forerunner in the race of being the first woman President of the United States of America in the 2016 presidential campaign is a former Yale graduate. 

She went on to earn her law degree from Yale University. In 1977, Clinton co-founded Arkansas Advocates for Children and Families. She was appointed the first female chair of the Legal Services Corporation in 1978 and became the first female partner at Little Rock’s Rose Law Firm the following year, the third oldest law firm in the USA. In 2000, she became the first female senator from New York. She majorly worked on the process of child advocacy, particularly relating to education provision for children with disabilities. 

Tony Blair 

Tony Blair was British Prime Minister from 1997 to 2007. He became a barrister, joining the Labour Party shortly after graduating from Oxford. From there, his political career went from strength to strength. He became leader of the Labour Party in 1994, and won a landslide victory to become Prime Minister in 1997, giving Labour their largest ever parliamentary majority. He achieved success in areas such as the Northern Irish peace process, because of which he was awarded an honorary doctorate in Law by Queen’s University and the creation of a National Minimum Wage. 

Ertharin Cousin 

The twelfth Executive Director of the United Nations World Food Programme is a former law graduate from the University of Georgia School of Law. Cousin has often been called “a Chicagoan who helps feed the world” for her community work in the lower-income neighborhood of Chicago. 

Xi Jinping 

President of the People’s Republic of China Xi Jinping has claimed many titles in his political career: Chairman of the Central Military Commission, General Secretary of the Chinese Communist Party, and, more simply, the “Paramount Leader”. The Chinese head of state is Doctorate, having obtained a Doctorate of Law (LLD) from Tsinghua University in 2002. His leadership skills and his work in the development of China has been hailed as- America’s greatest challenge and opportunity of the 21st century. 

Dean Gooderham Acheson

He was an American statesman and lawyer. As Secretary of State he set the Foreign policy of the Harry S. Truman administration from 1949 to 1953. He was Truman’s main foreign policy advisor from 1945-1947, especially regarding the Cold War. He became the principal creator of U.S. foreign policy in the Cold War period following World War II- policies regarding the Truman Doctrine, the Marshall Plan, the NATO alliance, containment, the global ideological and strategic challenge to the Soviet Union. He further helped to create the Western alliance in opposition to the Soviet Union and other communist nations. 

Mary Robinson 

The first woman President of Ireland and former UN High Commissioner for Human Rights; Chair of The Elders; a passionate advocate for gender equality, women’s participation in peace-building, human dignity and climate justice. 

Robert Zoellick 

He is an American public official and lawyer who was the eleventh President of the World Bank. He played a key role in the U.S.-WTO dispute against the European Union over genetically modified foods. In 1992, he received the Knight Commander’s Cross of the Order of Merit of the Federal Republic of Germany for his eminent achievements in the course of German reunification. In 2002, he was awarded an honorary Doctor of Humane Letters from Saint Joseph’s College in Rensselaer, Indiana. The Mexican and Chilean governments awarded him their highest honors for non-citizens, the Aztec Eagle and the Order of Merit, for recognition of his work on free trade, development, and the environment. 

Navanethem Pillay

She was UN High Commissioner for Human Rights appointed in 2008. Ms. Pillay, a South African national, was the first woman to start a law practice in her home province of Natal in 1967. As a member of the Women’s National Coalition, she contributed to the inclusion of the equality clause in the country’s Constitution that prohibits discrimination on grounds of race, gender, religion and sexual orientation. She even co-founded Equality Now, an international women’s rights organization, and has been involved with other organizations working on issues relating to children, detainees, victims of torture and of domestic violence, and a range of economic, social and cultural rights. 

Abraham Lincoln 

The 16th President of the United States, who even preserved the Union during the American Civil War and brought about the emancipation of enslaved people in the United States. Lincoln served on the Illinois State Legislature for several terms. During that time he studied law and began to work as a lawyer. He put the legal aspect into the political aspect during its tenure. 

Barbara Jordan 

The American lawyer, educator, and politician who served as U.S. congressional representative from Texas. She was the first African American congresswoman to come from the South. Jordan’s success in Texas politics came from her knowledge of and adherence to the rules of the political process, mainly focusing on environment, antidiscrimination clauses in state business contracts, and urban legislation, the political challenge in a state dominated by rural interests. 

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Unorganised Sector has been, in entirety, defined in “Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector, September 2007”^[1] by the National Commission for Enterprises in the Unorganised Sector (NCEUS) as, “the unorganised sector consists of all unincorporated private enterprises owned by individuals or households engaged in the sale and production of goods and services operated on a proprietary or partnership basis and with less than ten total workers”.

Generally, the terms “unorganised sector” and “informal sector” are used interchangeably.

There has been the absence of reliable statistics on the size, distribution or contribution to the economy, the unorganized sector has always remained a poorly understood and grossly neglected area. According to the report of the Economic Survey released in 2019, the unorganized sector accounts for 93% of the total workforce of the country.^[2]

The ‘Report of the Committee on Unorganised Sector Statistics’ of the National Statistical Commission (NSC), 2012 states that the informal sector constitutes 93% of the overall workforce and contributes 50% towards the Gross National Product (GNP)^[3].

It is a well-known fact that the unorganized sector has a big hand in running the country’s economy, yet there has not been concrete provision to protect it from time immemorial and yet, such a large workforce lacks clear legal protections.

In pursuance of the necessity, the legislation came up with the Social Security Code with an objective of consolidating all social security laws (which are already implemented) with a view to providing social security to all employees and workers, either in organised or unorganised sectors, gig workers and platform workers.

The research aims to analyse the provisions and rules of maternity benefits as guaranteed under the Social Security Code, 2020 in India.

Need Due to the Disruption

The necessity to protect the maternity rights of female workers was recognised by the legislation a long time back. The laws related to maternity benefits have been introduced with the aim to regulate the employment of women at certain periods (before and after childbirth).

It was first introduced in 1961; the Maternity Benefit Act, 1961. The objective of the Act was: “to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.”

Stand of Protection of Maternity Benefits recognised in International Customary Law and Convention

Article 23 of the Universal Declaration of Human Rights, 1948^[4] states that

1. “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.”

The said customary law indirectly infers the necessity of providing such benefits and thereto protecting them further.

On the Global front, the standardised regulations regarding maternity benefits have been established under the Maternity Protection Convention, 2000 (No. 183) after the replacement of its first Maternity Protection Convention in 1919 (No. 3) and Maternity Protection at the Workplace, 1952 (No. 103) and also the adoption of Maternity Protection Recommendation, 2000 (No. 191). Also, during the 92nd International Labour Conference in 2004, International Labour Organisation member states adopted resolutions relevant to extending maternity protection access and promoting work-life balance in its entirety. India is a founding member of ILO.

Stand under the Constitution of India

Article 42 of the Constitution of India contains the directive that the State shall make provision for securing just and humane conditions of work and maternity benefits.

Furthermore, on comparative lines, in order to regulate the employment of women in certain establishments for specific periods before and after childbirth and to accommodate for maternity benefits and certain other benefits, the Indian Parliament enacted the Maternity Benefit Act, 1961. The Maternity Benefit Act, 1961 was enacted keeping in view not only all those legislations related to maternity that existed from the pre-Constitution days, but also ILO’s mandate regarding maternity protection (ILO Maternity Protection Convention, 1952- No. 103).

Is Objective getting Fulfilled?

The Code on Social Security, 2020 has been passed by both Houses and has already received Presidential assent on September 28, 2020, but it is yet to be implemented.

As we have known, the main objective of the introduction of the Social Security Code, 2020 was to consolidate laws to all employees, but the major question which arises is whether the maternity interests of the female workers are getting protected or not.

Hence, for the same let’s analyse the provisions of the Code related to Maternity Benefits.

Chapter VI of the Code 2020 recognises the aspect of Maternity Benefits.

The Code has been proposed with an intention to subsume a few of the Central Labour Law Acts under the garb of ‘simplifying and rationalising’ the said provisions.

The very well intention behind the consolidation of laws into the self-contained and exhaustive Code on Social Security is extending the ambit and expansion of welfare to the workers fraternity.

But when examining the provisions set under the Code related to maternity benefits set out under Chapter VI of the Code, the intention cannot be wholly covered.

Maternity Benefits- Not mere a Legal Responsibility but a Social Responsibility

Providing maternity benefits to every woman worker is the paramount social responsibility of the government and the employer. But it is quite evident in India that the generous maternity benefits grant benefits to just 1% of the women workers as a whole. Ensuring maternity benefits is a universal cry. This is essential to ensure the upliftment and empowerment of women and gender equality. The 98th International Labour Conference held in June 2009 even acknowledged that the strengthening of maternity protection is the key to gender equality at workplace, whilst keeping in mind the application of ILO Convention on Maternity Protection (No. 183) which promotes and gives utmost priority to equality of all women in the workforce and the health and safety of the mother and child.

The Missing Aspects: Analysis of Chapter VI of the Code and in furtherance Recommendations

The government seems to have overlooked the recommendation of the Sixth Central Pay Commission^[5] and has left out a majority of the workforce that works in the unorganized sector; including labourers from the agriculture sector, seasonal workers, domestic workers or construction workers.

With over 90% of working women class in the informal sector, only few of them are even within the purview of the Act. While the Unorganised Workers’ Social Security Act, passed in 2008, includes maternity benefits as one of the entitlements for the unorganised, no wage-linked scheme for such purpose has yet been notified by the Government. The Janani Suraksha Yojana has been notified under this Act, but the same is a mere incentive for institutional delivery and nothing more.

The only entitlement currently available for all women is specified under the National Food Security Act, which promises a benefit of drawing Rs. 6,000 to all pregnant and lactating women. In the Code, there is no such mentioning of the sufferings of the informal sector women faces due to an implicit high workload, resulting in an increase of cases of illness and chances of miscarriage.

The Code even fails to universalise the ambit of payment of maternity benefit. Until and unless maternity benefits are universalized by way of the appropriate provision in the Code, a majority of women who work in the informal sector would be excluded from its purview. Hence, it is recommended that requisite amendments should be made to give universal coverage of maternity benefits to all women workers including those working in the unorganised/informal sector.

Payment of maternity benefits to every woman worker should be ensured. The existing Maternity Benefit Act is quite a generous one. This may be amended to incorporate all the women workers including the agricultural workers. But subsuming the Act in the Code, the Code does not spell out anything clearly. The Code should incorporate infrastructure, institutional mechanism and budgetary allocation to ensure the fulfilment of social commitment.

The Code also seems to miss out the opportunity to introduce paternity leave and possibly a chance to spread the message that the responsibility of running a family should be of both the parents.

Clause 22 of the European Union (Directive of European Parliament, 2019) specifies the need for maternity, paternity and parental benefits in case of a social security system opted by the establishments.^[6]

Countries such as the United Kingdom, Singapore, Sweden and Australia have realised the need of the hour and thereby introduced various other categories of leaves relating to childbirth, like parental leave, family leave etc. in order to provide the leave benefits to both parents, and thereby helping them to have a balance between their careers and personal life and also ensuring that the child’s proper care and attention from both the parents in his/her initial years of development. Although the steps taken by the government are commendable, the government has missed out this opportunity to catch up with such requirements. Hence, under Clause 60 of the Code, it is recommended that paternity leave as per the guidelines should also be included in the provision.

Appropriate provisions should be incorporated in the Code to ensure six months paid leave to every woman worker for childbirth. For the women of the unorganised sector where there are multiple employers; the government, central or state, as the case may be, should make payments equal to such wage rate in the respective industry through the unorganised sector welfare board. And in States, where there are no boards, the payment should be made through the Ministry of Labour.

In most of countries, the cost related to providing such benefits is entirely borne by the government and/or shared by both government and employer as per the social security schemes provided. But it is not the case in India, where the wages during the maternity leaves are borne by the employer only (with a mere exception under the ESI Act). There is also a requirement of having a crèche facility, etc., which would, in turn, require employers to establish adequate infrastructure thus prompting more inquiries and more expenses. Hence, there is need of an explicit provision citing the regulations regarding the bearer of such expenses, shared by both government and employer. Or explicitly mention the allowance of shared crèche with other establishments, where maintaining a separate crèche would not be practicable or economically feasible for the employer.

The Code under Clause 59 (3) does prohibit “work of arduous nature” done by any woman during the prescribed period before the date of expected delivery. But the same has not been defined, as to what is considered under the ambit of “work of arduous nature”.

Hence, there is a need for a specific and unambiguous definition of “work of arduous nature” in order to establish “arduousness” so that employers can be held accountable for risk work as women workers especially in the informal sector are often engaged in hazardous and risky forms of work and also in order to ensure its proper and uniform interpretation in the Code.

Conclusion

Definitely, adoption of such benefits is a boon to society.

But any Law enforceable has become meaningful only through its effective enforcement and particularly, in case of labour laws, periodic inspection and/or inspection on receipt of complaint is the life line of enforcement. The effective application of the relevant provision through the system of labour inspection has been surpassed in this Code. Hence, the entire approach is to make the law efficiently enforceable in order to protect the workers’ interests.

References: 

^[1] https://msme.gov.in/sites/default/files/Condition_of_workers_sep_2007.pdf

^[2] https://pib.gov.in/newsite/PrintRelease.aspx?relid=191213

^[3]http://14.139.60.153/bitstream/123456789/2848/1/Report%20of%20the%20Committee%20on%20Unorganised%20Sector%20Satatistics.pdf

^[4] https://www.un.org/en/about-us/universal-declaration-of-human-rights

^[5] https://doe.gov.in/sites/default/files/6cpchighlights%281%29%281%29.pdf

^[6] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1152&rid=3

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It is settled under the case Afcons Infrastructure Ltd v. M/s Cherian Varkey Construction, 2010

(7) SCALE 293 that ‘mediation’ and ‘conciliation’ are used synonymously wherein a neutral third party is appointed to facilitate the amicable resolution of the dispute.

Though the Arbitration and Conciliation Act, 1996 does not provide for the qualifications of a Conciliator; it requires the Conciliator to be independent, impartial, fair, objective and give consideration to the rights and obligations of the parties. Hence, a lawyer can also be appointed as a Conciliator, provided he/she undertakes to be guided by the said principles.

One of the major questions unturned is whether a lawyer who has acted as a mediator or conciliator can legally represent one of the parties in the later stages of the same matter?

Though it has been recognised under Section 80 of the Arbitration and Conciliation Act, 1996 that where a lawyer is appointed as the Conciliator, he/she is restrained from representing any of the parties to the dispute (in Court) in any arbitral or judicial proceeding in respect of the dispute that was the subject of the said conciliation proceeding. 

Hence, it has been restricted under Section 80; however, if both the parties to the dispute agree, then the lawyer appointed as the Conciliator may represent any one of the parties concerning the same matter. The waiver is a mandatory requirement in such a situation as there is a conflict of interest as regards the lawyer who has been a conciliator and represents one of the parties in the Court of law thereafter. In any case, a lawyer is bound under Section 2 Rule 4 of the Bar Council of India Rules to disclose to his/her client the connection with the parties or any interest in the matter which is likely to affect the client’s decision to engage the lawyer.

It is settled that a mediator/ conciliator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a dispute resolution. A conflict of interest can arise from involvement by a mediator/ conciliator with the subject matter of the dispute or from any relationship between a mediator/ conciliator and any dispute resolution participant, whether past or present, personal or professional, that reasonably raises a question of impartiality by the mediator/ conciliator.

In Western jurisdictions like the United States, it is a mandatory rule that unless there is a waiver by the parties, that could amount to a conflict of interest in the dispute resolution proceedings. But there is no such explicit guidance which states the Indian scenario related to the situation of waiver of amounting to conflict of interest.

With respect to the international perspective, IBA Guidelines on Conflicts of Interest in International Arbitration adopted by resolution of the IBA Council on 23rd October 2014 states about the position as to the validity and effect of waivers under General Standard 3(a), though the validity and effect of any waiver must be assessed in view of the specific text of the advance declaration or waiver, the particular circumstances at hand and the applicable law.

With respect to India, the situation of waiver has been defined by the Supreme Court in the case Manak Lal v. Dr. Prem Chand 1957 AIR 425. It was observed in this case that “the waiver can be inferred from the failure of the party to take the objection only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. And since the fact of appearance of mediator/ conciliator as legal representative of one of the parties to others and also that it must be deemed to have been conscious of his legal rights, his failure to take the objection before the tribunal creates an effective bar of waiver against him.”

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Biography-

On August 27, 1957, Justice Nuthalapati Venkata Ramana was born into an agrarian family in the village of Ponnavaram, Andhra Pradesh.
On February 10, 1983, he enrolled as an Advocate. He specializes in constitutional, criminal, service, and interstate river law.
He has also served as Panel Counsel for various government organizations.
On June 27, 2000, he was appointed as a permanent judge of the Andhra Pradesh High Court, and he also served as Acting Chief Justice and Additional Advocate General of Andhra Pradesh.
Justice Ramana was elevated as Chief Justice of the Delhi High Court on September 2, 2013, and was later elevated as Judge of the Supreme Court of India.

Women-centric judgments and observations

1. A campaign for ‘Empowering Women through Legal Awareness’ was launched by the Supreme Court judge and Executive Chairman of the National Legal Services Authority (NALSA) Justice NV Ramana, on the occasion of the 74th Independence Day.
2. In January 2020, a bench comprising Justices NV Ramana and Surya Kant observed that a woman homemaker’s work was worth financial compensation and needed to be recognized. The court increased the compensation amount to Rs 33.20 lakh in view of the deceased woman’s contribution to housework.

Landmark Judgments-

1. Md. Anwar v. State of NCT of Delhi, 2020: The three-judge bench of NV Ramana, SA Nazeer, and Surya Kant held that in order to successfully claim mental unsoundness as a defense under Section 84 of the IPC, the accused must show by a preponderance of probabilities that he or she suffered from a serious mental disease or infirmity that affected the individual’s ability to distinguish right from wrong.
2. Anuradha Bhasin v. Union of India, 2020: A three-judge bench consisting of NV Ramana, R Subhash Reddy, and BR Gavai ordered the Jammu and Kashmir administration to review all orders restricting telecom and internet services in the state within a week and put them in the public domain.
3. Roger Mathew v. South India Bank Ltd., 2019: The validity of Section 184 of the Finance Act, 2017, was upheld by a five-judge bench led by Justice Ramana. The court decided that the Section does not suffer from an excess of legislative delegation. The Tribunal, Appellate Tribunal, and Other Authorities (Qualifications, Experience, and Other Conditions of Service of Members) Rules, 2017, enacted under Section 184 of the Finance Act, 2017, was struck down.
4. Central Public Information Officer v. Subhash Chandra Agarwal, 2019: The Constitution Bench of Ranjan Gogoi, CJ, NV Ramana, Dr. DY Chandrachud, Deepak Gupta, and Sanjiv Khanna, JJ, has ruled that the Chief Justice of India’s office is subject to the Right to Information Act.
5. Jindal Stainless Ltd v. State of Haryana, 2017: By a 7:2 majority, a nine-judge court upheld the validity of state-imposed entry taxes on goods imported from other states, implying that states are well within their rights to design their fiscal legislation.
6. Adi Saiva Sivachariyargal Nala Sangam v. Government of TN, 2016: The appointment of Archakas in temples would have to be made in accordance with the Agamas, according to their due identification and compliance with the Constitutional mandates and principles, as held by a bench of Justices Ranjan Gogoi and NV Ramana. Exclusion or inclusion of the Archakas would not violate Article 14 if it was not based on caste, birth, or other constitutionally unacceptable criteria.

The post Read to Know: All about 48th CJI Justice N.V. Ramana appeared first on Legal Desire Media and Insights.

Mr. Dayal has enriched experience in the Banking and Finance sector, owing to his qualification in examinations from Monetary Authority of Singapore, Singapore College of Insurance, claiming expertise in Regulatory framework, including the laws and regulations, and associated codes, notices, practice notes and guidelines governing the capital markets and life insurance intermediaries in Singapore. He is also qualified in IRDA and AMFI Laws.

Additionally, he is accredited from the DIFC Courts Academy, Dubai, UAE – gaining rich insights and a better understanding of the procedures involved in implementing the DIFC courts’ laws and procedures in practicing cases.

He has served as Senior Member Infrastructure Committee in the PHD Chamber of Commerce and industry, Head of Task Force Corporate Training – ASSOCHAM, and an Executive Member of the committee on civil dispute resolution – Confederation of Indian Industry.

Mr. Dayal further strives to spread this knowledge by serving as a Visiting Lecturer and Guest Speaker in the renowned Institute of Management and Technology, IMT, Dubai and Lincoln University of Business and Management, Dubai, and SP Jain School of Management, Dubai in sharing his treasure of knowledge in International business laws.

As we all know that Twenty-First Century is bitterly known as the Internet Century.  Literally, huge part of the world relies on the internet for various reasons and even it has been declared by the three-judge bench comprising Justice N V Ramana, Justice R Subhash Reddy and Justice B.R. Gavai in case Anuradha Bhasin v. Union of India and Ors where the petitioner challenged the internet shutdown in the Union Territory of Jammu and Kashmir, that “freedom to access the Internet” is a fundamental right and is protected under Article 19(1) (a) – freedom of speech and expression of the Constitution of India. We talked with Mr.Deepak to understand about this subject matter in detail. Here’s the candid conversation: 

According to you, what is that appropriate line one should draw while exercising his right of freedom of speech and expression on internet?

I think one has to be very careful. Young adults should implied like putting themselves in front of their elders- parents, college professors, teachers, future bosses, colleagues, siblings, grandparents, honourable judges; imagine like you are in front of them. All that you would speak in front of them, the language which you would use, the expressions you would use, think like they are in front of you and in such circumstances how you would be behaving in front of them, in that way you would be online.

The reason I am giving you this example because what is happening is people think they are anonymous behind the virtue of being online and can easily do acts of cyber bullying, or set up a fake account and no one will know and they can write and get away with everything. 

The point is anything which we do on such strong technologies where IP addresses can easily be traced; gone are those days where you can get away with such acts. The crime branch of police department, the IT cell today are very strong, they will get to you. You sent the Whatsapp, your number can be traced, and you write something from the fake account, IP addresses can be traced very easily. So, my point is do not write anything, you yourself feel is inappropriate. Just because when you are free at 2 o’ clock in the night from your mobile or laptop writing something or commenting something with the belief that no one is watching you, but in reality everyone is watching you and they exactly know who you are, where you are, and what you are doing. The key is self-restraint is most important because you don’t want to get into trouble with law. And you all are student of law; we all know “Ignorance of law is no excuse”. There cannot be any excuse of ‘Oh! I didn’t know this, as I have not read the privacy policy of Facebook’ or ‘I have not read the Article 19(1)(a) in detail’. Hence, one should be very careful of what you are writing, think like if you are in front of audience and/or known ones, at that point how carefully you will be speaking. So on the internet also, whether it is to your friend or Facebook group, be careful. You cannot as young adults can excuse by saying ‘this was a joke’ or ‘I was just talking to my friend’.

Hence, we have to be careful of our actions, look at yourself and you yourself will come up with the answer. When in doubt, keep your mouth shut, God has given us two ears and one mouth for a basic reason that listen more, absorb more; speak less but wisely and take responsibility of whatever we write on the internet.

Your views on the level of the fundamental right of freedom of speech and expression the legal and media fraternity enjoy in the developing world.

The freedom of speech and expression also has to be dealt responsibilities. Like, yes we have right to criticise, but one has to know the difference of opinion, criticism and what lead to defamation, and when are we crossing the line, ‘the Laxman Rekha’. The Honourable Supreme Court has used the word ‘Laxman Rekha’.

Even in developed countries, Singapore, I would say, you cannot speak up against the government. One has to be careful; you can have a very constructive criticism but arbitrarily throwing everywhere allegations stating, “ABC is corrupt” or “XYZ is a criminal” without having a proof and evidence for such claim is wrong.

In fact in a developed country, you can be sued much more and by living in India also you can be sued by them. Hence, you should be careful upon freedom of expression.

Every right comes up with its responsibilities. So, you cannot make a derogatory remark, sexist remark, racial remark or religious remark which hurts the sentiments of someone else. There has been such instances and that’s what courts are doing in India and even oversees that if somebody has made such remarks and in consequence you have violated someone’s sentiments and it can cause them mental trauma, you are liable for it- both civil as well as criminal penalties.

According to you, whether the new perspective of media trial and social media trial is a boom or bane to our system?

Obviously we are seeing the Sushant Sigh suicide/ murder case; we all understand that media trials are absolutely, without any doubt a complete mess.

Media can try and this scenario is not just in India, it has happened and does happen in all other countries like US, UK, Australia as well. This is the Age of Media and every country has 24X7 media coverage, minute by minute there have been updates reporting.

I don’t think there is any disagreement to the fact that Media Trials are absolutely not good for any incident and any country. But media does play an important role because many a times, due to various activities many crimes have been brushed under the carpet.

If you look back in our history also, there have been so many cases which were brought up only because of media, because there was such a mass movement even the honourable courts had to look up and take notice. Not every case goes automatically to CBI for inquiry, CBI comes into play when there is misconduct happening at some stage or it is of such a sensitive matter. So, media does play an important role in highlighting issues, irrespective of political parties or vested interest.

But the moment there is a media trial, obviously it is a complete circus because witnesses are being brought up on the media and are being questioned but that has no validity, even if someone comes up and claim that he has done the crime it does not hold good in law of courts.

But it is very difficult to stop the media and that is where restraining orders are taken these days by individuals as well as various parties in order to stop people from talking to the media. And I think these media trial does hamper real justice, which can only be given in law of courts. As the media scenario is there is a two week hype of a particular case, and suddenly some other case will come up and they will just completely fail to follow up on what is happening on that previous case, because courts will decide and in India, court trials take very long process from the Sessions Courts to District Courts to High Court to Supreme Court, whether it is the Aarushi case or any other case if we look back, they goes for at least 15-20 years and media focusing on them for approximately couple of weeks only.

Also, obviously the conclusion drawn by media draws no relevance; the media can put somebody guilty completely but it has no meaning.

In countries like US, there is a further problem as there is a jury system, made up of individuals who are not even legal experts to take up the decision of the case and they have to keep away from all the social media and news influence is now getting increasingly difficult in those countries as well.

Do you think the increase in media coverage has evolved the entire objective of the media of providing information to the public?

I think media debates are two-edged swords. One needs to understand the difference between news and discussions. Earlier on, news could be coming in 1 hour of news at 7 in the morning and 1 hour at 8 in the evening. Now, we have news channels which are 24X7 and there are over maybe 30 news channels simultaneously. But discussions and opinions people can keep giving over and over again, and by repeating or shouting, something which may be true or might not be true will not change the fact. I think there is an overreach of media, by overreach I mean that media cannot be the advocates and judges and cannot be taking over what honourable courts have to do. You can have a media debate but what is it solving really and concluding someone guilty or not guilty has zero value in the real world, which is in the hands of the court to decide. Like the investigative agency has not even fully started its work and you are declaring someone as culprit of the crime; when the process of investigation takes very long time and that too can be challenged on basis of its admissibility.

Definitely, I think the overreach of news media is harmful to all the sensitive cases.

The boom of the OTT platforms has evolved the entire entertainment sector, but don’t you think that this increase has also lead to increase in easy exposure of dangerous and obscene content to general public. Like, take an example of the series 13 Reasons Why, the series does contain the content related to suicidal acts. Doesn’t this object the moral sentiments of the public? Whether there is a need of Censorship laws related to this platform citing the moral obligations of Media, Entertainment and Advertising industry?

Yes, definitely. This all has been coming under the purview of IT laws. Especially, with the introduction of Netflix, Amazon Prime and many others and its shows and even the releasing of movies on these platforms, there has been the need. The certifications which were required for the movies to be released are not applicable on these platforms. We have smoking scenes, swear words, objectionable content which were not allowed by the Censor Board when released through the official channel of the theatres in India.

Now, it has been released through international platforms outside the purview of the Board. We, ourselves are also in a little flucks to the fact that we have internet connection and mobile and we can go to websites which are streaming all kinds of stuff just a type away.

The government has power to control them and even various developed countries has powerful tools also, but then technology hacks are also available where they are able to bypass the system. It is very challenging in today’s day and age, because these platforms are global, yes they have Indian content but they are being released simultaneously all over the world; we have to look after which countries’ rule to apply, the jurisdiction for same: does Indian laws are applicable.

If the platforms themselves are not based in India, they are based oversees; thus, there is a fundamental question that does India have a direct jurisdiction, can it play a role there or not? Even if we pass laws, will that administration of justice be implemented?

In this case, there are more questions and fewer answers; these questions are those which we are still struggling to get answers and these answers we will only be getting through courts after judgements are declared and only after that things will become clearer as these sectors are evolving right now. In fact it is in current process, especially with COVID 19, every focus is on the internet and technology.

Can our laws keep up with the technological changes and how do we enforce them are the questions we are constantly battling to find the answers.

Even after the SC declared Right to internet as a protected one under the constitution there are many parts of India which still cannot access the internet properly. Such non-availability has deprived them of their right to education (online). What are your views on this and please suggest few measures.

As a lawyer, I will be very clear that laws are made up by the legislation who we elect and we should mainly focus on implementation of the same.

I would also encourage you, young lawyers and law students that do not get in too much debates regarding your views or subject, we can discuss law but we can get into things which we does not have direct control over, because right of education is a fundamental right but if you look into the implementation side what is the literacy rate in India, except for Kerala which has probably the highest literacy rate of somewhere like 80-90%, but if we look at rural India – look around us what is the literacy rate- we are one of the least educated country, when we look at the population of India and part of it who is literate, that number is very low. And that is the difference what we call a developing country and developed country. Education is the fundamental, biggest reason which our Honourable Prime Minister has realised; the focus is on the new education policy and these issues.

Education, explicitly I would say right to access Internet is now becoming the fundamental right because the reach is so much more.

I think my views do not matter and I would say one should not have so many views on these subjects; we need to focus on implementation, understanding and following the rules which are already there. We have one of the best laws in the world, out problems and challenges are in its implementation and execution stage; without blaming bureaucracy and State Government but those are our challenges. So, laws have been really good; our Constitution is absolute and even so many forums have declared Indian Constitution as one of the best in the world. We should be proud of the Constitution which we have, we are no less than the Constitution of America or UK or Australia.

Implementation is where we lack and I am confident that with the support of Young India, the youth of India, we all will get better execution and you ask questions for these also.

Sir, your tips and piece of advice for law students and young lawyers on the New and Emerging Field of Media, Entertainment and Advertising Laws Industry.

According to me, the young generation should definitely focus on as this is the future- The Media, Entertainment, Cyberlaw. Because what is happening is that these laws are very new. Look at the lawyer of 30-40 years of experience, in our time we never knew what mobile was. The internet was discovered in my generation. But all of the young ones have grown up with these technologies, you understand it very well. So what is happening in the young generation already understand technology; law is something you need to understand now. So you all have an edge over very seasoned lawyers because the majority of them do not understand technology. You all understand technology so you all can come up to a lawyer with 30 years of experience in just two years of experience because of this edge. These laws are also very new, like the IT Act itself is very new and the scope and future is this only. Rather than going into mainstream older subjects, like Property law, yes they are important but it is very important to focus on something at the right time and at the right place. So, these sectors, Media, Entertainment, Advertising, and Cyber Laws are better to focus upon. And I am confident enough that you all will have great opportunities, not just in India but overseas as well.

Technological Companies like Amazon, etc. want international lawyers. We know the common law of India, even their laws are not very difficult to comprehend. We are the talent pools, what Engineers and Doctors; you know what India used to export to the rest of the world, now it’s the day and age for Lawyers. Now you all are stressed upon with the fact that you are not getting internships and jobs but that is very short-lived. Just increase your knowledge levels and you will have great opportunities in the next few years, I am very confident upon that.

Interviewed by Mannat Sardana, Research Assistant (Student Division) at Dept of Media, Entertainment and Advertising Laws, Legal Desire

The post In Conversation with with Deepak Dayal, Managing Partner, Dayal Legal Associates on ‘Freedom of Speech & Expression and the Internet’ appeared first on Legal Desire Media and Insights.

Parliament being the apex democratic law-making institution deals with numerous issues concerning the nation- political, economic, social, national security, foreign policy, science, and technology, etc. Parliament deliberates on matters which are complex, extensive, and varied in nature. And it is hard to give close consideration and comprehension to all the legislative and other matters which are put up before them as there is a need for technical expertise to understand such matters in a better and prolonged way. Therefore, Committees have been constituted primarily to share responsibility.

In a republic like ours, the great importance of the Committee system is presumed. One of the essential conditions of such a parliamentary system is administrative accountability to the legislature.

Parliamentary Committee means a Committee that is appointed or elected by the House or nominated by the Speaker and functions under the direction of the Speakers. It periodically presents reports to the House or to the Speaker; and the Lok Sabha Secretariat is present to render assistance. Parliamentary Committees help members by providing a forum where they can engage with domain experts and government officials during the course of their study. 

Parliamentary Committees are essential components of any legislature providing various supports within the discharge of responsibilities of the legislature. The support includes supervision, control and vigilance and, most significantly, sharing the heavy workload of the legislature. The Committee system ensures smooth functioning of the legislature by building consensus on critical issues and examining issues in greater detail, which the legislature could not do for want of time and being considerable in volume.

Peter Richards underlining the need for the existence of Committees said, “Now it is clear that the tradition of nominating Committees developed to deal with specific issues, which can exercise intense scrutiny of matters of detail and items of administration in a Parliamentary setup.”

The foremost purpose of parliamentary committees is to perform functions that the Houses themselves are not well-equipped to perform, i.e., finding out the facts of a case, examining witnesses, scrutinising evidence, and drawing up reasoned conclusions. Due to their composition and method of procedure, which is informally structured in comparison to the Houses, committees are well suited to the gathering of evidence from expert groups or individuals.

For example, the Committee on Health and Family Welfare studied the Surrogacy (Regulation) Bill, 2016 which prohibits commercial surrogacy, but allows altruistic surrogacy.  As Members of Parliament come from varying backgrounds, they may not have had the expertise to understand the main points around surrogacy such as fertility issues, abortion, and regulation of surrogacy clinics, among others.  The Committee called upon a variety of stakeholders including the National Commission for Women, doctors, and government officials to better their understanding of the issues, before finalising their report.

It can be said that the Parliament Committees are a form of an aid to the Parliament in making Parliamentary control strong and more effective through the use of questions and open debates, and by the assistance of those, the governmental action can be brought under the scrutiny of Parliament.

REASONS FOR NEED OF COMMITTEE SYSTEM

The two important reasons of devising of the Committee System were that, to assist the Parliament in carrying out discussion of public affairs and to scrutinise the administration. The following are some of the reasons for the need of the Committee system, 

1. More detailed and comprehensive discussion takes place as compared to the House;
2. Issues are treated in non-partisan manner. 
3. Committees provide a forum for building consensus across political parties as it consists of members from opposition party and other 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, making it non-sectarian and allowing them to freely question and providing beneficial and thoughtful suggestions in order to discuss issues and arrive at a consensus;
4. Each subjects are dealt in an accurate and elaborate manner;
5. Expert opinion and thorough knowledge of the subject matter is undertaken.

Also, G.V.Mavalankar, a former speaker of the Lok Sabha outlined the reasons for creation of the Committee system. He suggested that the Committee system was created:

1. to associate with and train a large number of legislators, in order to make them aware of the governmental affairs; 
2. to exercise control over the executive;
3. to influence the policies of the Government; and 
4. to act as an interface between the Government and the general public.

Underlining the requirement of the Committees in democratic legislatures all over the world, S.S.More stated: “No legislature can function effectively without the aid of some Committees. Discussion of details is impossible at a large meeting except debating the broad principles. All legislatures therefore elect smaller groups to discuss matters in detail and these bring the result of their discussion back to the larger body for decision.”

Functions of Committees

The majority of the Parliamentary work ·involves passing numerous bills on various subject matters. The number of bills Parliament handles in its day to day functioning makes it difficult for proper consideration and the Committees help the Houses in smooth carrying of the work by investigating and controlling the issues of subject matters.

Committees generally carry out a number of functions covering a wide range of issues, which can be grouped under two broad categories – deliberative, and executive. There is another category, categorised as investigative, which include scrutinising of the executive actions. 

The first two are consultative or facilitative in nature, while the third function authorises the Committee to act as the watchdog for transparency and accountability. Also, it links the legislatures with the general public, by reporting on the failures of the government and forces it to take remedial measures.

Kinds of Parliamentary Committees (their Role and Functions)

Both Houses of Parliament have an identical committee structure, with some exceptions. The appointment, terms of office, functions and procedure of conducting business of Houses also are quite similar and are managed as per rules made by the two Houses under Article 118(1) of the Constitution of India.

By their nature, Parliamentary Committees are broadly classified into two kinds:-

Standing Committees– These are permanent, continuous, and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha and Council of States. 

Most standing committees have twenty-one members from the Lok Sabha and ten members from the Rajya Sabha, and are headed by a Chairperson.

This kind is further bifurcated into Financial Committees, Departmentally Related Standing Committees and Other Committees.

Financial Committees– Committees on Estimates, Public Accounts and Public Undertakings constitute a distinct group as they keep a constant observance over Government expenditure and performance. 

While members of the Rajya Sabha are related to Committees on Public Accounts and Public Undertakings, the members of the Committee on Estimates are drawn entirely from the Lok Sabha.

The Estimates Committee is constituted under Rule 310 of Rules of Procedure and Conduct of Business in Lok Sabha and reports on ‘what economies, improvements in organisation, efficiency or administrative reform consistent with policy underlying the estimates’ is also affected. It also examines whether the money is well laid out within limits of the policy implied within the estimates and suggests the structure in which estimates shall be presented to Parliament. 

The Public Accounts Committee is constituted under the provisions of Rules 308 and 309. Its function is to inspect the accounts showing the appropriation of the sums granted by the House to fulfil the expenditure of the Government of India and it also scrutinises appropriation and finance accounts of the State. It guarantees that public money is spent in harmony with Parliament’s decision and brings the cases of waste, absurdity, loss or insufficient expenditure to notice.

The Committee on Public Undertakings examines the reports and accounts of Public Undertakings laid out in the Fourth Schedule of the Rules of Procedure and Conduct of Business in Lok Sabha and also the reports of the Comptroller and Auditor-General, if any. It also examines the efficiently working of the public undertakings as per the business principles and prudent trade practices.

Departmentally Related Standing Committees– There are twenty-four Departmentally Related Standing Committees (DRSCs), each of which oversees a group of Ministries. It was first set up in 1993, to assist the Parliament to keep up with the growing complexity of governance.  These are permanent Committees that are reconstituted every year. These Committees primarily inquire three aspects: (i) Bills, (ii) Budgets, and (iii) Subject specific issues for examination.  

In order for a Bill being properly scrutinised before passing, the law making procedure of our country includes a provision for Bills to be referred to a DRSC for detailed examination. 

Any Bill introduced in Lok Sabha or Council of States can be referred to a DRSC by either the Speaker of the Lok Sabha or Chairman of the Rajya Sabha.

Over the years, these Committees have immensely contributed to strengthen the laws passed by Parliament. For instance, the Consumer Protection Act, 2019, reconstructing the 1986 law, was recently passed during the Budget Session of 2019, by suggesting several amendments like increasing penalties for misleading advertisements, etc. 

Besides Bills, the DRSCs also examine the budget.  The detailed estimates of expenditure of all ministries, called Demand for Grants are sent for expert examination to the DRCSs.  They study the market demands to examine the trends in allocations, spending by the ministries, utilisation levels, and the policy priorities of each ministry. 

These Committees also examine policy issues in their respective Ministries, and make suggestions to the Government in order to have an efficient policy. The government then reports back by either accepting or rejecting these recommendations. Based on this, the Committees then plan off an Action Taken Report, which shows the status of the government’s action on each recommendation made. 

The procedure regarding the functioning of DRSC’s, serviced by Lok Sabha has been enumerated in Rule 331C to 331Q of the Rules of Procedure and Conduct of Business in Lok Sabha. And similarly, the procedure regarding the functioning of DRSC’s, serviced by Rajya Sabha has been enumerated in Rule 268 to 277 of the Rules of Procedure and Conduct of Business in Council of States (Rajya Sabha).

Other Standing Committees include Financial Committees which facilitate Parliament’s scrutiny over government expenditure.

In terms of their specific functions, Other Standing Committees are divided into:

• Committees to Inquire:

Committee on Petitions inspects petitions on bills and on matters of general public interest; and

• Committees to Scrutinise:

Committee on Government Assurances monitors all the promises, schemes, etc., given by Ministers in the House and keep a check on them till they are implemented efficiently;

Committee on Subordinate Legislation keep a check on the actions of delegated authorities related to the power to make regulations, rules, sub-rules, bye-laws, etc., conferred by the Constitution or Statutes; and in case of failure, reports it to the House. It also examines the statutory notifications and orders lay on the table of the House by Ministries, to see they have been in accordance to the said provisions of Constitution, Act, Rule or Regulation.

Committee on Papers Laid on the Table scrutinises all papers laid on the table of the House by Ministers, other than statutory notifications and orders, to see whether they have been in compliance with the provisions of the Constitution, Act, Rule or Regulation under which the paper has been laid.

• Committees referring to the day-to-day business of the House:

Committee on Private Members’ Bills and Resolutions of the Lok Sabha allocates specified time to private members introduced Bills, recommends allocation of time for discussion on such resolutions and examines Constitution amendment bills before their introduction in the Lok Sabha. There is no such committee under Rajya Sabha; it is the Business Advisory Committee of that House which recommends allocation of time for such discussion on private members’ bills and resolutions;

Rules Committee examines matters of conduct and practice of business in the House and proposes amendments for the same; and

Committee on Absence of Members from the Sittings of the House of the Lok Sabha examines all applications from members for leave or absence from sittings of the House. In case of Rajya Sabha, there is no such Committee and such applications for leave or absence are considered by the House itself.

• Committee on the Welfare of Scheduled Castes and Scheduled Tribes, on which members from both Houses serve, considers all matters relating to the welfare of Scheduled Castes and Scheduled Tribes which come within the purview of the Union Government and keeps a watch whether constitutional safeguards in respect of these classes are properly implemented or not. And in case of non-implementation, action plan is prepared against the issue.
• Ad-Hoc Committees– These committees are formed and appointed for a particular purpose only, such as addressing administrative issues, examining a Bill or an issue in the proposed Bill and they cease to exist by the completion of the task assigned to them and they submit a report on the study to the House. 

The foremost Ad hoc Committees are the Select and Joint Committees on Bills. 

Some of the Ad hoc Committees we have are Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex, Joint Committee on Security in Parliament Complex, Committee on Members of Parliament Local Area Development Scheme, Joint Committee on Fertilizer Pricing, Joint Committee to enquire into Irregularities in Securities and Banking Transactions, Joint Committee on Stock Market Scam, Committee on Portraits/Statues of National Leaders installation and Parliamentarians in Parliament House Complex.

CONCLUSION

While Parliamentary Committees in India have substantially impacted Parliament’s efficacy in discharging its roles, there is still scope for strengthening the Committee system as non-binding. The foundational rules stated do not require that each Bill to be examined by a Committee and this result in some important Bills being passed without the advantage of an expert committee scrutinising its technical details in a non-partisan manner.

The scope of operation of Committees is quite limited in comparison to those in other countries where the Committees have even taken over to some extent the executive functions.

Author: Mannat Sardana, Legal Intern (June 2020)

Currently in the 3rd Year of BBA LLB (Hons.) program of Vivekananda Institute of Professional Studies, GGSIPU, New Delhi. And along with BBA LLB, I am also pursuing CS program from ICSI (cleared foundation level).

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