The Jan Vishwas Bill transcends the decriminalisation mandate, as stated in its object and reasons. It should not be used as an opportunity to slide substantive changes in Acts with broad ramifications, as such changes require a wider public consultation.
What is the Jan Vishwas Bill?
THE Union Ministry of Commerce and Industry introduced the Jan Vishwas (Amendment of Provisions) Bill, 2022 in the Parliament on December 22 last year. The Bill was referred to a Joint Parliamentary Committee (JPC) that submitted its report on March 20, during the current budget session of the Parliament.
The statement of object and reasons of the Jan Vishwas Bill provide broadly threefold reasoning for the introduction of the bill: promoting ease-of-doing-business and ease-of-living reforms for the public and businesses; removing the fear of imprisonment for minor offences vide decriminalisation and rationalisation, thus boosting business ecosystem and individual confidence; and reducing the judicial burden by encouraging administrative adjudication. The Union Finance Minister, in her budget speech, also highlighted that the bill was in furtherance of trust-based governance, and heralded it as the most important legislation to be brought in by the government in the budgetary session.
The first line of the statement of objects and reasons of the Jan Vishwas Bill says that “[t]he cornerstone of democratic governance lies in the government trusting its own people and institutions.” Hence, it is imperative to analyse whether the aam jan or the ordinary citizen and their vishwas (confidence) have been factored into the provisions of the Jan Vishwas Bill by ensuring their participation.
Was the pre-legislative consultation policy followed in relation to the Bill?
The Pre-Legislative Consultation Policy (PCLP) was introduced in February 2014 by the Union government’s Committee of Secretaries. It was envisioned as an instrument for transparent and better-informed governance by providing a framework for public consultation. Every department/ministry has to publish legislative instruments for public consultation and explanations for such measures. The PCLP thus introduced the concept of jan vishwas through jan bhagidari or people’s participation in the Indian law-making process.
The law ministry’s legislative department does not maintain information on compliance with the Pre-legislative Consultation Policy. Thus, there is no information on the legislations on which prior public consultation was done.
Paragraph 8 of the PCLP prescribes that bills should be sent to the Union Ministry of Law and Justice for vetting and that the ministry should, while examining the draft legislation or Rules, ensure that the concerned department/ministry has complied with pre-legislative consultation. However, in response to a recent question in Lok Sabha, the law ministry divulged that its legislative department does not maintain information on compliance with the PCLP. Thus, there is no information on which legislation the process of prior public consultation was done.
The Department of Promotion of Industry and Internal Trade (DPIIT) under the Union Ministry of Commerce and Industry had invited suggestions from businesses and citizens to facilitate the ease-of-doing-business and ease-of-living frameworks. Suggestions were invited till October 31, 2022 on broad areas, one of the components in which was the decriminalisation of minor offences. However, no record of such submissions received by DPIIT was found on its website. This is opposed to the mandate of para 6 of the PCLP. Thus, there is no authority to establish whether the provisions for proposed decriminalisation were supported by businesses and citizens or not.
Additionally, it is also unclear if individual departments/ministries invited suggestions on their respective bills before giving their approval for their inclusion in Jan Vishwas. Some ministries did invite suggestions on the proposed decriminalisation of offences in legislation before the Jan Vishwas Bill was introduced. The Union Ministry of Environment, Forest and Climate Change (MoEFCC) held a public consultation in July 2022 for the decriminalisation of offences under five environmental legislation: the Environment (Protection) Act 1986, the Air (Prevention and Control of Pollution) Act 1981, the Water (Prevention and Control of Pollution) Act, 1974, the Public Liability Insurance Act, 1991 and the Indian Forest Act, 1927. The Jan Vishwas Bill proposes changes to similar provisions in four out of these five legislation (except the Water Act). However, the monetary penalty is drastically reduced in the 1986, 1981 and 1991 Acts vis-à-vis the proposed July amendments.
It is unclear what prompted the MoEF&CC to decrease the penalty because of a lack of information on feedback received in July. Information for any other ministry which carried out this exercise in 2022 could not be found in the public domain.
Thus, there is uncertainty with respect to metrics for inclusion of respective legislation and their particular provisions by concerned departments/ministries.
Also read: Need of the Hour: Why Pre-Legislative Consultation will make laws better and more inclusive
What are the concerns pertaining to specific decriminalisation provisions?
The Jan Vishwas Bill includes 42 legislation, and thus is unprecedented in terms of the number of legislation it amends. Similar legislation in the recent past includes the Companies (Amendment) Act, 2020, which decriminalised and made changes to the Companies Act 2013, and the Limited Liability Partnership (Amendment) Act, 2021, which decriminalised specific provisions under the Limited Liability Partnership, Act 2008.
The Jan Vishwas Bill uniformly removes offence clauses and substitutes them with monetary penalties across legislation. This exercise, without proper public consultation, might have a disproportionate effect under specific legislation.
However, the purview of the Jan Vishwas Bill goes much beyond decriminalisation as it also amends other provisions of Acts such as changes in monetary penalties and changes in grievance redressal mechanisms, among other things. It is important to note that such amendments are proposed across several central Acts that fall under the jurisdiction of several Union ministries.
The Jan Vishwas Bill seeks to change the Information Technology Act, 2000 (IT Act), wherein “appropriate authority” under Section 2(1)(e) is to be amended to “the state government if the matter concerns a state subject, or, otherwise, the Central government”. As pointed out by the National Association of Software and Service Companies (NASSCOM), a non-governmental trade association and advocacy group, in its public submission to the JPC, this does not relate to the outlined decriminalisation purposes of the Bill, and such changes would also require wider public consultation. This proposed amendment alters the authority of the state and Union governments to take actions under the IT Act by redefining “appropriate authority“. The amendment in itself is ambiguous with respect to the power of the respective government, especially with respect to take-down orders under the IT Act.
The Jan Vishwas Bill uniformly removes offence clauses and substitutes them with monetary penalties across legislations. This exercise, without proper public consultation, might have a disproportionate effect under specific legislations. For instance, the Bill seeks to amend four environmental legislations. The Vidhi Centre for Legal Policy, an independent think-tank and research centre, has pointed out in its comments and suggestions sent to the JPC on the proposed amendments to environmental laws in the Bill that the current penalty framework is not deterrent enough. Environmental legislations have broader implications wherein many violators are corporates and the government. The imprisonment mechanism under these legislations was an essential feature of laws. During the parliamentary discussion on the Environment Protection Act, 1986 (EPA), it was pointed out that the imprisonment clause will give the EPA the necessary teeth for its enforcement. Thus, blanket removal of such provisions is a misplaced understanding of the ease-of-living reform for the public.
Public consultation on provisions of the Bill that go beyond the scope of decriminalisation and assess the implication of decriminalisation of essential legislation like the EPA is much needed.
Also read: Implications of decriminalising minor economic offences: Interview with Professor G.S. Bajpai
What are the issues with the proposed appointment of adjudicating officers?
The Jan Vishwas Bill recommends the appointment of adjudicating officers for legislation such as the Agricultural Produce (Grading and Marking) Act, 1937, the Patents Act, 1970, the Air (Prevention and Control of Pollution) Act, the EPA, the Public Liability Insurance Act, and the Trade Marks Act, 1999, among others.
Adjudicating officers have been appointed across several legislations as primary dispute resolution authorities. The pendency rate and long judicial process are believed to deter business activities. The appointment of adjudicating officers is an attempt to resolve this bottleneck. It is contended that ‘minor contraventions’ can be resolved without going to court. However, the provision of a judicial function by an executive authority might be misplaced for legislation that directly affects public interest. Its usage as a uniform policy necessitates public consultation in certain instances.
Courts are presumed to hold the public’s trust as an institution where their demands would be heard impartially. The substitution of executive authority in laws that involve violation of individual and community rights, such as the EPA, the Agriculture Produce Act or the Public Liability Insurance Act, can be counterproductive and erode the trust of the public. Appointing an executive authority instead of pre-existing judicial bodies and tribunals might indicate a loss of trust in our judicial bodies. Thus, the appointment of adjudicating officers across legislations in the Bill needs to be re-examined by the government.
Appointing a judicial body as the appellant forum will be better for holding public confidence in the adjudication process.
Adjudicating officers mentioned are higher executive officers at the joint/deputy secretary (or district magistrate at state) level who are already overburdened with diverse responsibilities. Thus, there is a fear that they may not be able to pay attention to these matters, leading to ignorance of severe violations under the Acts. The NASSCOM also pointed out that the imposition of civil penalties by government officials might lead to a conflict of interest.
The appointment of executive officials for handling judicial functions requires detailed study and assessment under the respective legislations. It is suggested that appointing a judicial body as the appellant forum will be better for ensuring public confidence in the adjudication process.
How can the Bill ensure true jan vishwas?
The JPC scrutinising the Jan Vishwas Bill also didn’t invite any public comments on the Bill. In its nine sittings, the committee has only heard the representatives of the ministries and departments.
Also read: Supreme Court rejects plea to direct authorities to publish draft laws in public domain
The metric given by the DPIIT for decriminalisation mentions that focus on public impact must be paramount. Hence, the adoption of the PCLP for sector-specific legislation will inspire confidence in the public and ensure transparency.
The Jan Vishwas Bill transcends the decriminalisation mandate, as stated in its object and reasons. It should not be used as an opportunity to slide substantive changes in Acts with broad ramifications, as such changes require a wider public consultation. Strengthening and implementing the public consultation policy in the law-making process is a move towards democratic accountability. This will be a substantive step towards strengthening people’s participation and thus vishwas in the State’s actions through jan bhagidari or civic participation.