Appointment of Judiciary - The corridors of the judiciary are rife with widespread charges of nepotism and factors other than merit guiding the decisions in appointment of judges. The process is completely opaque without any possibility of holding decision makers accountable. The said procedure is inconsistent with best practices worldwide. It is necessary that not only the establishment of the National Judicial Appointment Commission but also its composition and functions are laid down by a Constitutional amendment. At present, there is no procedure or criteria laid down in the Constitution for shortlisting of candidates or for resolving disagreements in the commission. A more detailed constitutional amendment is necessary for such reforms so that the candidates for judicial office are selected in an optimally transparent manner which will further be in consonant with the independence of the judiciary.
Tribunals - The Tribunals are established to provide a more efficient and specialized means of dispute resolution. They operate outside the regular court structure, replacing existing judicial structure in some cases and for providing a specialized forum for dispute settlement in others. There is a lack of functional autonomy as compared to the courts. Tribunals are dependent on the appropriate ministries for the allocation of funds. Tribunal members, unlike judges at all levels, have short tenures subject to the renewal by the government at its pleasure. There is the problem of efficiency in the disposal rate of cases which is due to the lack of appointments. New provisions must be introduced giving Tribunals full functional autonomy. The Central Government is the single largest litigant in the country. Serious measures are therefore needed both in the short and long term to handle the problem. One solution to the problem is to fix the demand side of litigation.
Government Litigation - Government litigation suffers from an agency problem. National Litigation Policy should be made binding and enforceable against the officers of the government, in a manner akin to the procedure adopted by the Central Board of Direct Taxes, to ensure that appeals are restricted only to High- value tax disputes. The Central Govt. Should in conjunction with an information technology service provider set up a database in the Central Agency to monitor litigation.
Definition of Employee - The labour reforms are long overdue in India. The varied definitions of the workman and related terms across labour laws, make employee definition a problem. A related term 'employee' also suffers from similar problems. The Minimum Wages Act uses the term 'employee' while the Payment of Wages Act uses the term 'employed person' and the Mines Act uses 'employed'. Even where the same term is used, as in the Payment of Bonus Act and the Payment of Gratuity Act, the language used to define them is different. There is a need to revisit the definition of two terms - 'employee' and 'workman' - across all central labour laws, draft a single definition for each that addresses the problems of over and under-inclusion, and adopt it uniformly in all labour laws, thus fulfilling the goal of standardisation.
Renewable Energy Sector - India is ranked among the top countries in the world in terms of renewable energy capacity, especially wind and solar. Unfortunately, this capacity is not utilised effectively. There are a few overarching reasons for this. First, in spite of several policies addressing the challenges of energy access and sustainability, existing legal provisions can be found only in the Energy Conservation Act, 2001 and a few provisions of the Electricity Act, 2003. These Acts mention renewable energy only peripherally when dealing with subjects like institutional arrangements and tariff-setting. Further, these impose no mandatory obligations. Thus, the lack of a strong compliance mechanism in law for an otherwise effective programme has been one of the biggest barriers to its implementation. Second, the lack of harmonisation among state policies has made investments in various states contingent on attractive policies rather than energy potential. For achieving the objectives mentioned above, the following legislative steps are suggested. Enact a law solely addressing the management of renewable energy and its use in power generation. This law should override discretionary and enabling provisions in other laws. In such a law, include provisions on registration of renewable energy producers, requirement of purchase of renewable energy solely from such producers, subsidies and financial incentives such as feed-in-tariffs and tax benefits. It is also important for such a law to set targets, as already set in existing policies, and lay down penalties for non-fulfilment, as well as incentives for compliance.
Internet sector - The beauty of the internet lies in the structure of the network. A truly democratic network, the internet has been one of the greatest achievements of our age, and its success is due to a key principle that it was born with equality. This principle of equality is at the core of the net neutrality debate. Simply put, net neutrality is the principle that internet service providers (ISPs) and governments should follow treating all data on the internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment and modes of communication. Due to a worldwide movement to protect a neutral internet, the European Union, Norway, Netherlands and many other countries have already enacted laws to ensure net neutrality in their respective jurisdictions. Due to the lack of any ISP transparency regulation in India, the government and consumers are kept in the dark about traffic management practices in use by ISPs. Therefore, the issue should be addressed to make the system more transparent and substantive net neutrality rules must be introduced. In December 2006, the Telecom Regulatory Authority of India (TRAI) released a consultation paper titled 'Review of Internet Services' which discussed the issue of net neutrality. So far, no further public initiative has been taken by TRAI to examine the issue in detail and enact regulations to protect a neutral internet. The time is ripe for TRAI to take the next step, invite views from all stakeholders, and move towards enacting a regulation to address this issue.
Repeal outdated laws - In a recent report by the Political and Economic Risk Consultancy, a Hong Kong based consultancy firm, India topped the list of the most 'over- regulated countries in the world'. The complexity of our regulations and the onerous burdens they impose contribute significantly to this ranking. Deregulation is clearly the need of the hour. The first step in this regard is identifying laws for repeal and creating systemic safeguards that allow such repeal to take place smoothly. In the past, several bodies including the seminal PC Jain Commission on Review of Administrative Laws have undertaken the task of identifying laws for repeal. While those studies were largely limited to clearing the statute books, a more meaningful project in this area should identify those laws that are not only outdated, but also pose some kind of impediment to economic growth and human development. As an example, under the R&D Cess Act, 1986, a Research and Development cess at the rate of 5% is levied on importers of foreign technology. This imposes a considerable burden on technology companies and has an unclear and outdated scope of application. It is out of sync with modern economic demands and ought to be repealed. Outdated laws such as these that only have potential for misuse are ripe for repeal. A two-fold strategy is required to address this issue. First, a substantive exercise must be carried out for identifying those statutes and regulations that no longer serve a useful purpose but are used for harassment or obstructionism. These must be repealed. Secondly, a strategy must be employed going forward to ensure this problem does not arise in the future. This requires the systematic use of drafting techniques like sunset and review clauses, and simplification of the procedure for repeal. A sunset clause results in automatic repeal after a specified period unless the law is expressly extended. A review clause mandates formal periodic review of the law, but does not result in automatic repeal. Simplification of procedures for repeal may involve allowing repeal by parliamentary resolution, as is done in the United Kingdom.
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