Can Executions Be More Humane? A law professor suggests an untested procedure as an alternative to lethal injection.

JACK SHULERMAR 20 2015, 8:00 AM ET

A nitrogen gas cylinder with pressure-relief devices (Wikimedia)

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma—and now, the proponent of a new execution method he claims would be more humane than lethal injection.
Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian. The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection. Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.
Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation. Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way. Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection.
This isn’t Oklahoma’s first time engineering new execution methods. The modern lethal-injection protocol was first proposed by an Oklahoma state medical examiner named Jay Chapman in 1977. But Copeland, who spends most of his time teaching criminal justice policy, procedure, and research methods, has no background in medicine. This is his first foray into execution technologies.

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Hypoxia occurs when a person lacks an adequate supply of oxygen. “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death. It is the lack of oxygen that causes death.”
According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said. “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.” He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established. Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.
The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added. “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”
Since the botched execution of Clayton Lockett last April, Oklahoma’s death row has been in the national spotlight. Lockett died forty-three minutes after the process began—far longer than a typical lethal injection—and appeared to writhe in pain. The Supreme Court is now reviewing the state’s lethal-injection protocol to determine whether or not it is humane. Meanwhile, three scheduled executions in the state have been postponed.
Copeland says that conditions for lethal-injection executions will only get worse. States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place. “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues.
As more drug manufacturers create end-user agreements that prevent states from using their drugs for executions, departments of corrections are searching for other ways to carry out death sentences. The situation is acute. Last week, Akorn became the latest drug company to make rules about how certain drugs are used, South Carolina announced it had run out of drugs, and Texas said it had only one dose of pentobarbital remaining.
Oklahoma is not alone in its quest for new execution methods. The electric chair is Tennessee’s new backup method, while Utah will use the firing squad if lethal injection is not possible. Other states, including Louisiana and Oklahoma, are researching methods involving gas. According to the Death Penalty Information Center, four states have gas chambers as backups to lethal injection: Arizona, California, Missouri, and Wyoming.
From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history. American lethal-gas executions typically used hydrogen cyanide as the mechanism of death. Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.
But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.
Other death-penalty experts are more skeptical. “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center. “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.
“We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them. I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”
If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says. Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”
Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice—it’s the state’s obligation,” he explains. “But I don’t think the death penalty is a deterrent compared to life without parole.” If we must have the death penalty, he argues, it should be humane.

"Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap.”

Christine C. Pappas, one of Copeland’s co-researchers, echoes this point. In an email exchange, she said that if the Supreme Court invalidates lethal injection as an execution method, it would not necessarily mean the end of the death penalty. States could find other ways to kill. “If we are to have the death penalty, which is something that Oklahomans really want, I believe it should be as painless as possible,” she argues. Pappas is opposed to capital punishment and says she’s faced criticism from abolitionists who think she’s in league with death-penalty advocates.
“What’s missing is the question of whether or not we should be executing people at all,” said Ryan Kiesel, the executive director of the Oklahoma ACLU and a former three-term member of the state House of Representatives. He argues that the state legislature is missing the big picture. “Instead, we’re having this bizarre academic exercise with professors playing doctors dressed up as executioners. Behind all of those masks, there’s no legitimate expertise to help legislators consider this method.”
Kiesel says they need to step back and take a look at facts that are, in his words, an indictment of the death penalty itself. He points to the central role that race and class play into death sentences and to Oklahoma’s ten death-row exonerations. Those factors, he argues, should give legislators pause. “It’s a fool’s errand to inject humanity into something that at its very core is a brutal act,” he added. “You can’t make it more humane.”
But Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs. It will only get worse. Some corrections officials at the Louisiana Department of Public Safety and Corrections agree. On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.
Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing—like you’d rather people not use heroin, but if they do, you want them to use clean needles.”

Source: http://www.theatlantic.com/politics/archive/2015/03/can-executions-be-more-humane/388249/

Appliation under Section 156(3) CrPC must be accompanied with Affidavit

The Supreme Court directed that Application under Section 156(3) CrPC to the Magistrate is mandated to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.

Mrs. Priyanka Srivastava and Anr. v. State of U.P. and Ors.
CRIMINAL APPEAL NO.781 OF 2012
Judgment Date : 19/03/2015

CORAM :Dipak Misra .J , Prafulla C. Pant .J

REASON FOR SUCH STRICT STEP:

1. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit is that the person making the application should be conscious and also endeavour to see that no false affidavit is made.

2. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3).

3. There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3).

Restrospective Operation of Sec.143(1A) of Income Tax Act ,1961 upheld.

The Supreme Court today upheld the retrospective operation of Sec.143(1A) of the Income Tax Act,1961 and thereby avoided the conflicting judgments of various high court.

COMMISSIONER OF INCOME TAX, GAUHATI & ORS. v. M/S. SATI OIL UDYOG LTD. & ANR
CIVIL APPEAL NOS.9133-9134 OF 2003

Judgment Dated : 24/03/2015

CORAM : A.K. Sikri .J , R.F. Nariman .J

ISSUE INVOLVED :
Constitutional validity of the retrospective amendment to Section 143(1A) of the Income Tax Act, 1961.

CATCHPHRASE:

1. Both the Single Judge and the Division Bench of the Gauhati High Court have held that the retrospective effect given to the amendment would be arbitrary and unreasonable inasmuch as the provision, being a penal provision, would operate harshly on assessees who have made a loss instead of a profit, the difference between the loss showed in the return filed by the assessee and the loss assessed to income tax having to bear
an additional income tax at the rate of 20%.

2. The same provision in its retrospective operation has been upheld by the Kerala, Madhya Pradesh, Rajasthan, Karnataka and Madras High Courts.

3. Section 143 (1A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. The burden of proving that the assessee has so attempted to evade tax is on the revenue which may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it.

Section 66-A of IT ACT is declared unconstitutional

The Supreme Court today relying upon two Constitution Bench Judgment ( Kameshwar Prasad case (1962) and Ram Manohar Lohia case, (1960)) struck down Section 66-A of Information Technology Act,2000 along with Section 118(d) of the Kerala Police Act. However, they maintained the validity of Section 69A and the Information Technology (Procedure &
Safeguards for Blocking for Access of Information by Public) Rules 2009.

SHREYA SINGHAL v. UNION OF INDIA
WRIT PETITION (CRIMINAL) NO.167 OF 2012

Judgment Dated : 24/03/2015

CORAM : J. Chelameswar .J , R.F. Nariman .J

CATCHPHRASE:

10 important grounds for striking down Section 66-A of the Act.

1. Comparative Analysis of Art.19(1)(a) and US First Amendment.( Refer Para 15, 17)

2.Three concepts which are fundamental in understanding the reach of this most basic of human rights. i) Discussion , ii) Advocacy and
iii) Incitement.

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. ( Also refer Para 44)

3. The Definition of " INFORMATION" under the act does not refer what the content of information can be but it only refers to the medium through which such information is disseminated.

4. Public order is synonymous with public safety and tranquility.
(Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821)

5. A Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and courts or a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. ( Refer para 52)

6.A penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness.( Refer para 56)

7. None of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined – and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act.

8.Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. ( Determination of Offensive and Grossly Offensive through Chilling Effect ad Overbreadth) Refer para 83

9. Possibility of an act being abused is not a ground to test its validity. ( Refer para 91)
( This contention was submitted by the Respondent but The Apex Court on a lighter note stated that it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go
but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government.It must, therefore, be held that Section 66-A must be judged on its own merits without any reference to how well it may be administered. )

10. With regard to procedural unreasonablility under CrPC that has been laid due to Section 66-A of the act , the court held that a statute cannot be dissected and then examined as to under what field of legislation each part would separately fall.

11. Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.Rules constitutionally infirm. ( Refer para 111)

12. There are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court.( Refer para 116)

Highlights of the Undisclosed Foreign Income and Assets (Imposition of Tax) Bill, 2015 Introduced in Lok Sabha Today

The Finance Minister, in his budget speech, while acknowledging the limitations under the existing law, had conveyed the considered decision of the Government to enact a comprehensive new law on black money to specifically deal with black money stashed away abroad. He also promised to introduce the new Bill in the current Session of the Parliament. 

In order to fulfil the commitment made by the Government to the people of India through the Parliament, the Undisclosed Foreign Income and Assets (Imposition of Tax) Bill, 2015 has been introduced in the Parliament on 20.03.2015. The Bill provides for separate taxation of any undisclosed income in relation to foreign income and assets. Such income will henceforth not be taxed under the Income-tax Act but under the stringent provisions of the proposed new legislation. 

The salient features of the Undisclosed Foreign Income and Assets (Imposition of Tax) Bill, 2015 are as under:- 

Scope – The Act will apply to all persons resident in India. Provisions of the Act will apply to both undisclosed foreign income and assets (including financial interest in any entity). 

Rate of tax – Undisclosed foreign income or assets shall be taxed at the flat rate of 30 percent. No exemption or deduction or set off of any carried forward losses which may be admissible under the existing Income-tax Act, 1961, shall be allowed.

Penalties – Violation of the provisions of the proposed new legislation will entail stringent penalties. 

The penalty for non-disclosure of income or an asset located outside India will be equal to three times the amount of tax payable thereon, i.e., 90 percent of the undisclosed income or the value of the undisclosed asset. This is in addition to tax payable at 30%.

Failure to furnish return in respect of foreign income or assets shall attract a penalty of Rs.10 lakh. The same amount of penalty is prescribed for cases where although the assessee has filed a return of income, but he has not disclosed the foreign income and asset or has furnished inaccurate particulars of the same. 

Prosecutions – The Bill proposes enhanced punishment for various types of violations. 

The punishment for willful attempt to evade tax in relation to a foreign income or an asset located outside India will be rigorous imprisonment from three years to ten years. In addition, it will also entail a fine. 

Failure to furnish a return in respect of foreign assets and bank accounts or income will be punishable with rigorous imprisonment for a term of six months to seven years. The same term of punishment is prescribed for cases where although the assessee has filed a return of income, but has not disclosed the foreign asset or has furnished inaccurate particulars of the same. 

The above provisions will also apply to beneficial owners or beneficiaries of such illegal foreign assets. 

Abetment or inducement of another person to make a false return or a false account or statement or declaration under the Act will be punishable with rigorous imprisonment from six months to seven years. This provision will also apply to banks and financial institutions aiding in concealment of foreign income or assets of resident Indians or falsification of documents.

Safeguards – The principles of natural justice and due process of law have been embedded in the Act by laying down the requirement of mandatory issue of notices to the person against whom proceedings are being initiated, grant of opportunity of being heard, necessity of taking the evidence produced by him into account, recording of reasons, passing of orders in writing, limitation of time for various actions of the tax authority, etc. Further, the right of appeal has been protected by providing for appeals to the Income-tax Appellate Tribunal, and to the jurisdictional High Court and the Supreme Court on substantial questions of law. 

To protect persons holding foreign accounts with minor balances which may not have been reported out of oversight or ignorance, it has been provided that failure to report bank accounts with a maximum balance of upto Rs.5 lakh at any time during the year will not entail penalty or prosecution. 

Other safeguards and internal control mechanisms will be prescribed in the Rules. 

One time compliance opportunity – The Bill also provides a one time compliance opportunity for a limited period to persons who have any undisclosed foreign assets which have hitherto not been disclosed for the purposes of Income-tax. Such persons may file a declaration before the specified tax authority within a specified period, followed by payment of tax at the rate of 30 percent and an equal amount by way of penalty. Such persons will not be prosecuted under the stringent provisions of the new Act. It is to be noted that this is not an amnesty scheme as no immunity from penalty is being offered. It is merely an opportunity for persons to come clean and become compliant before the stringent provisions of the new Act come into force. 

Amendment of PMLA – The Bill also proposes to amend Prevention of Money Laundering Act (PMLA), 2002 to include offence of tax evasion under the proposed legislation as a scheduled offence under PMLA. 

Thus, in keeping with the commitment of the government for focussed action on black money front, an unprecedented and multi-pronged attack has been launched to root out the menace of black money. The Government is confident that this new law will act as a strong deterrent and curb the menace of black money stashed abroad by Indians. 

*****

DSM/KA 
(Release ID :117477) 

Reimbursement of LPG Subsidy into Bank Accounts of Consumers

The Minister of State (I/C) for Petroleum & Natural Gas Shri Dharmendra Pradhan informed the Rajya Sabha in a written reply today that as on 11th March, 2015, 11.94 crore LPG consumers have joined the PAHAL scheme out of which 9.81 crore have received permanent advance/ subsidy in their bank accounts. 

No consumer, who has successfully enrolled under PAHAL scheme, is deprived of subsidy. All LPG consumers who have not joined the scheme, will be given a grace period of three months from the date of launch to join the scheme. During grace period such consumers will get LPG, as per their entitlement, at subsidized price. Additionally, a period of three months beyond grace period known as parking period has been given to LPG consumers for joining the scheme. During parking period such consumers will get cylinders as per their entitlement at market price and subsidy will be kept parked with OMCs. This parked subsidy would be released as soon as consumer joins the scheme. However, if a consumer joins the scheme after parking period, the parked subsidy would lapse and consumer will get subsidy from prospective date only. 

RC/Rk 
(Release ID :117315) 

Citizenship to Children Born to a Surrogate Indian Mother

This was stated by the Minister of State for Home Affairs, Shri Kiren Rijiju in a written reply to a question by Shri Sanjay Raut in the Rajya Sabha today. 

The Ministry of Home Affairs has developed guidelines for the foreign nationals intending to visit India for commissioning surrogacy. These guidelines have been notified vide MHA letter no. F No.25022/74/2011-F.I dated 9th July 2012 and have also been circulated to all the Indian missions/posts. 

The following provisions have been made under these guidelines for the foreign nationals coming to India for commissioning surrogacy: 

1. The appropriate VISA category for the foreign nationals coming to India for commissioning surrogacy will be “Medical VISA”. 

2. It will also be necessary in such cases to ensure that the surrogate mother is not cheated. Therefore such a visa may only be granted if the following conditions are fulfilled: 

(i) The foreign man and woman are duly married and the marriage should have sustained at least for two years. 

(ii) A letter from the Embassy of the foreign country in India or the Foreign Ministry of the country should be enclosed with the Visa application stating clearly that (a) the country recognizes surrogacy and (b) the child/children to be born to the commissioning couple through the Indian surrogate mother will be permitted entry into their country as a biological child/children of the couple commissioning surrogacy. 

(iii) The couple will furnish an undertaking that they would take care of the child/children born through surrogacy. 

(iv) The treatment should be done only at one of the registered Assisted Reproduce Technology (ART) clinics recognized by ICMR. (The list of such clinics will be shared with MEA from time to time). 

(v) The couple should produce a duly notarized agreement between the applicant couple and the prospective Indian surrogate mother. 

3. If any of the above conditions are not fulfilled, the visa application shall be rejected. 

4. Before the grant of visa, the foreign couple need to be told that before leaving India for their return journey, ‘exit’ permission from FRRO/FRO would be required. Before granting ‘exit’, the FRRO/FRO will see whether the foreign couple is carrying a certificate from the ART clinic concerned regarding the fact that the child/children have been duly taken custody of by the foreigner and that the liabilities towards the Indian surrogate mother have been fully discharged as per the agreement. A copy of the birth certificate(s) of the surrogate child/children will be retained by the FRRO/FRO along with photocopies of the passport and visa of the foreign parents. 

Source : http://pib.nic.in/newsite/erelease.aspx?relid=117352

The Proposal For Inclusion Of Transgender in OBC

This information was given by the Minister of State for Social Justice and Empowerment, Shri Vijay Sampla in a written reply in the Lok Sabha dated 17-03-2015

The Supreme Court in its judgment dated 15.04.2014 in W.P. No. 400/2012 filed by National Legal Services Authority Vs Union of India and others has, inter-alia, directed Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. The Ministry has filed an application in Supreme Court seeking clarification regarding granting OBC status to such transgender persons who may by birth belong to SCs/STs. 

An Expert Committee was constituted in the Ministry to make an in-depth study of the problems being faced by the Transgender Community and suggest suitable measures to ameliorate their problems. The Committee submitted its report on 27th January 2014. 

The Ministry of Social Justice & Empowerment has sought clarification from the National Commission for Backward Classes (NCBC) for inclusion of transgenders in the OBC category. NCBC while tendering advice to include Transgender Community in the Central List of Other Backward Classes for all the States, also stated that clarification on the aspect of SC/ST status of Transgender may be sought by the Government from the Supreme Court of India. 

Since the Ministry has filed an application in Supreme Court seeking clarification in this regard, no time frame can be indicated. 

Cases Registered Under Prohibition of Child Marriage Act, 2006 Show an Increase During the Period 2011-13

Cases Registered Under Prohibition of Child Marriage Act, 2006 Show an Increase During the Period 2011-13

The number of cases registered under the Prohibition of Child Marriage Act, 2006 has shown an increasing trend during the period 2011-13. As per the National Crime Records Bureau (NCRB) data which is available till the year 2013, the number of such cases registered were 222 in 2013, 169 in 2012 and 113 in 2011. In the year 2013, highest number of cases registered are in Tamil Nadu (56) followed by West Bengal (43). The reasons for child marriage are complex and it is mindset problem which considers girl child as a burden. Social customs, tradition, illiteracy, poverty, low status of women in society, lack of awareness about consequences of child marriage are some of the other reasons that encourage the practice of child marriage. The Resolution titled ‘Strengthening efforts to prevent and eliminate child, early and forced marriage : challenges, achievements, best practices and implementation gaps’ was adopted by consensus at the 24th Session of the United Nations Human Rights Council in September, 2013. India supported the resolution and made a statement. Government of India is concerned about the prevalence of Child Marriages in the country and put in place necessary legislation viz. Prohibition of Child Marriage Act (PCMA) 2006 to tackle the problem. The States/UTs from time to time are being regularly pursued for effective implementation of the Prohibition of Child Marriage Act, 2006. Further, State Governments are requested to take special initiative to delay marriage by coordinated efforts on Akha Teej—the traditional day for such marriages; Advertisements in the press and electronic media educating peoples about the issue of Child Marriage etc also being taken up. Platforms such as the International Women’s Day and the National Girl Child Day are used to create awareness on issues related to women and to bring to the centre stage issues such as child marriage. Through the Sabla programme of this Ministry, adolescent girls in the age group of 11 to 18 years are imparted training with regard to legal rights of women which also includes the Prohibition of Child Marriage Act, 2006. This information was given by the Union Minister of Women and Child Development, Smt. Maneka Sanjay Gandhi in a written reply to an unstarred question in the Lok Sabha today. NB/NK/PB (Release ID :117008)

Major Highlights of the Insurance Laws (Amendment) Bill, 2015 Passed by Parliament

Major Highlights of the Insurance Laws (Amendment) Bill, 2015 Passed by Parliament; Provides for Enhancement of the Foreign Investment Cap in an Indian Insurance Company from 26% to an Explicitly Composite Limit of 49% with the Safeguard of Indian Ownership and Control;  Provides Insurance Regulatory and Development Authority of India (IRDAI) with Flexibility to Discharge its Functions More Effectively and Efficiently Among Others

The Insurance Laws (Amendment) Bill, 2015 was passed by the Lok Sabha on 4th March, 2015 and by the Rajya Sabha yesterday i.e. on 12th March, 2015.The passage of the Bill thus paved the way for major reform related amendments in the Insurance Act, 1938, the General Insurance Business (Nationalization) Act, 1972 and the Insurance Regulatory and Development Authority (IRDA) Act, 1999. The Insurance Laws (Amendment) Act 2015 to be so enacted, will seamlessly replace the Insurance Laws (Amendment) Ordinance, 2014, which came into force on 26th December 2014. The amendment Act will remove archaic and redundant provisions in the legislations and incorporates certain provisions to provide Insurance Regulatory and Development Authority of India (IRDAI) with the flexibility to discharge its functions more effectively and efficiently. It also provides for enhancement of the foreign investment cap in an Indian Insurance Company from 26% to an explicitly composite limit of 49% with the safeguard of Indian ownership and control. 2. Capital Availability: In addition to the provisions for enhanced foreign equity, the amended law will enable capital raising through new and innovative instruments under the regulatory supervision of IRDAI. Greater availability of capital for the capital intensive insurance sector would lead to greater distribution reach to under / un-served areas, more innovative product formulations to meet diverse insurance needs of citizens, efficient service delivery through improved distribution technology and enhanced customer service standards. The Rules to operationalize the new provisions in the Law related to foreign equity investors have already been notified on 19th Feb 2015 under powers accorded by the ordinance. The four public sector general insurance companies, presently required as per the General Insurance Business (Nationalisation) Act, 1972 (GIBNA, 1972) to be 100% government owned, are now allowed to raise capital, keeping in view the need for expansion of the business in the rural and social sectors, meeting the solvency margin for this purpose and achieving enhanced competitiveness subject to the Government equity not being less than 51% at any point of time. 3. Consumer Welfare: Further, the amendments to the laws will enable the interests of consumers to be better served through provisions like those enabling penalties on intermediaries / insurance companies for misconduct and disallowing multilevel marketing of insurance products in order to curtail the practice of mis-selling. The amended Law has several provisions for levying higher penalties ranging from up to Rs.1 Crore to Rs. 25 Crore for various violations including mis-selling and misrepresentation by agents / insurance companies.  With a view to serve the interest of the policy holders better, the period during which a policy can be repudiated on any ground, including mis-statement of facts etc., will be confined to three years from the commencement of the policy and no policy would be called in question on any ground after three years. The amendments provide for an easier process for payment to the nominee of the policy holder, as the insurer would be discharged of its legal liabilities once the payment is made to the nominee. It is now obligatory in the law for insurance companies to underwrite third party motor vehicle insurance as per IRDAI regulations. Rural and Social sector obligations for insurers are retained in the amended laws. 4. Empowerment of IRDAI: The Act will entrust responsibility of appointing insurance agents to insurers and provides for IRDAI to regulate their eligibility, qualifications and other aspects. It enables agents to work more broadly across companies in various business categories; with the safeguard that conflict of interest would not be allowed by IRDAI through suitable regulations. IRDAI is empowered to regulate key aspects of Insurance Company operations in areas like solvency, investments, expenses and commissions and to formulate regulations for payment of commission and control of management expenses. It empowers the Authority to regulate the functions, code of conduct, etc., of surveyors and loss assessors. It also expands the scope of insurance intermediaries to include insurance brokers, re- insurance brokers, insurance consultants, corporate agents, third party administrators, surveyors and loss assessors and such other entities, as may be notified by the Authority from time to time. Further, properties in India can now be insured with a foreign insurer with prior permission of IRDAI; which was earlier to be done with the approval of the Central Government. 5. Health Insurance: The amendment Act defines 'health insurance business' inclusive of travel and personal accident cover and discourages non-serious players by retaining capital requirements for health insurers at the level of Rs. 100 Crore, thereby paving the way for promotion of health insurance as a separate vertical. 6. Promoting Reinsurance Business in India: The amended law enables foreign reinsurers to set up branches in India and defines‘re-insurance’ to mean “the insurance of part of one insurer’s risk by another insurer who accepts the risk for a mutually acceptable premium”, and thereby excludes the possibility of 100% ceding of risk to a re-insurer, which could lead to companies acting as front companies for other insurers. Further, it enables Lloyds and its members to operate in India through setting up of branches for the purpose of reinsurance business or as investors in an Indian Insurance Company within the 49% cap. 7. Strengthening of Industry Councils: The Life Insurance Council and General Insurance Council have now been made self-regulating bodies by empowering them to frame bye-laws for elections, meetings and levy and collect fees etc. from its members. Inclusion of representatives of self-help groups and insurance cooperative societies in insurance councils has also been enabled to broad base the representation on these Councils. 8. Robust Appellate Process: Appeals against the orders of IRDAI are to be preferred to SAT as the amended Law provides for any insurer or insurance intermediary aggrieved by any order made by IRDAI to prefer an appeal to the Securities Appellate Tribunal (SAT). 9. Thus, the amendments incorporate enhancements in the Insurance Laws in keeping with the evolving insurance sector scenario and regulatory practices across the globe. The amendments will enable the Regulator to create an operational framework for greater innovation, competition and transparency, to meet the insurance needs of citizens in a more complete and subscriber friendly manner. The amendments are expected to enable the sector to achieve its full growth potential and contribute towards the overall growth of the economy and job creation.

Law Commission of India Submits its Report on Electoral Reforms to the Ministry of Law & Justice

Law Commission of India Submits its Report on Electoral Reforms to the Ministry of Law & Justice Wide Ranging Reforms Proposed

The law Commission of India today submitted its Report No. 255 on “Electoral Reforms” to the Union Law and Justice Ministry. Informing this to the Media persons here in New Delhi Justice Shri A. P. Shah, Chairman Law Commission of India said the  201 page report has come after due consideration and deliberations with the stake holders including of register national and state political party and extensive and in-depth analysis of various issues by the commission. He said this report is sequel of the request of Ministry of Law and Justice made in January 2013 to the Twentieth Law Commission of India to consider the issue of ‘Electoral Reforms’ in its entirety and suggest comprehensive measures for changes in the law. While working on the subject, the Supreme Court of India, in the matter of ‘Public Interest Foundation & Others V. Union of India & Anr- Writ Petition (Civil) No. 536 of 2011, directed the Law Commission of India to make its suggestions on two specific issues, viz., (i) ‘curbing criminalization of politics and needed law reforms’; and (ii) ‘impact and consequences of candidates filing false affidavits and needed law reforms to check such practice’. In the light of this judgment, the Commission worked specifically on these two areas and, after series of discussions, followed by a National Consultation held on 1st February 2014, submitted its 244th Report titled ‘Electoral Disqualification’  on 24th February 2014 to the Government of India. Justice Shah further said that after the submission of Report No. 244, the commission circulated another questionnaire to all registered national and state political parties seeking their views on ten points, the response received was not very encouraging, though. However, the Commission undertook an extensive study to suggest electoral reforms, held various rounds of discussions with the stakeholders and analysed in-depth the issues involved. After detailed deliberations, the Commission has come up with its recommendations which are put in the form its final Repot, Repot No.255, titled ‘Electoral Reforms’, which been submitted for  for consideration by the Government. Following is the summery of the report on various issues discussed in the report. The amendments to the Constitution, RPA, Election Rules and any other laws have been made in track changes in the Annexure appended to this Report. The detailed report is available on the website of the commission: 1.Election Finance    The Law Commission has proposed wide ranging reforms on the issue of candidate expenditure limits; disclosure obligations of individual candidates and political parties; and penalties imposable on political parties; as well as examining the issue of state funding of elections. a.       Section 77 of the RPA, regulating the election expenses incurred or authorized by candidates or their election agents, currently extends from the date of nomination to the date of declaration of results. This period should be extended by amending section 77(1) to apply from the date of notification of the elections to the date of declaration of results. [Para 2.31(a)1] b.      Section 182(1) of the Companies Act, 2013 should be amended to require the passing of the resolution authorising the contribution from the company’s funds to a political party at the company’s Annual General Meeting (AGM) instead of its Board of Directors. [Para 2.31(a)2] c.       The existing disclosure obligations of individual candidates are limited to maintaining an account of electoral expenses under sections 77 and 78, RPA. This is sought to be amended by inserting a new section 77A to require candidates or their election agents to maintain an account and disclose the particulars (names, addresses and PAN card numbers of donors and amounts contributed) of i.            any individual contribution received by them from any person or company, not being a Government company and ii.            any contribution by the political party from the date of notification of elections, which have to be made by the party by a crossed account payee cheque or draft or bank transfer. [Para 2.31(b)3] d.      Section 78 should be amended in light of the proposed amendment to section 77A above, and the reference to more than one returned candidate should be removed. [Para 2.31(b)4] e.       A new section 78A should be inserted requiring the district election officer to make publicly available, on his website or on file for public inspection on payment of prescribed fee, the expenditure reports submitted by every contesting candidate under section 78. [Para 2.31(b)5] f.       Political parties should be required to maintain and submit annual accounts, duly audited by a qualified and practicing chartered accountant from a panel of such accountants maintained for the purpose by the Comptroller and Auditor General, to the ECI every financial year. These accounts will fully and clearly disclose all the amounts received by the party and the expenditure incurred by it. The ECI will then upload these accounts online or keep them on file for public inspection on payment of fee. [Para 2.31(b)6] g.       Disclosure provisions governing political parties has been substantially recast, with the existing 29C being deleted and replaced by a new section 29D requiring all parties to: i.                        mandatorily disclose all contributions in excess of Rs. 20,000; ii.                        include aggregate contributions from a single donor amounting to Rs. 20,000 within its scope; iii.                        disclose the names, addresses and PAN card numbers (if applicable) of these donors along with the amount of each donation above Rs. 20,000; iv.                        disclose such particulars even for contributions less than Rs. 20,000 if such contributions exceed Rs. 20 crore or 20 % of the party’s total contributions, whichever is less. Consequential amendments will need to be made to the Election Rules and the IT Act. [Para 2.31(b)7] h.      A new section 29E to be inserted in the RPA requiring the ECI to make publicly available, on its website or on file for public inspection on payment of prescribed fee, all the contribution reports submitted by all political parties under section 29D. [Para 2.31(b)8] i.        ECI’s transparency guidelines prescribing, first, a “statement of election expenditure” to be filed with it, by every party contesting an election within 75 days of the Assembly elections and 90 days of the General elections election; and second, expenses incurred by political parties to be usually in the form of cheque or draft, unless banking facilities are not easily available or the payment is made to a party functionary in lieu of salary or reimbursement, should be given a statutory basis vide a newly inserted section 29F. [Para 2.31(b)9] j.        The disqualification of a candidate for a failure to lodge an account of election expenses and contributions reports under section 77 and proposed 77A should be extended from the current three period up to a five year period, so that a defaulting candidate may be ineligible to contest at least the next elections. [Para 2.31(c)10] k.      Express penalties, apart from losing tax benefits, should be imposed on political parties vide section 29G for the non-compliance with the disclosure provisions of proposed section 29D of the RPA. This should include a daily fine of Rs. 25,000 for each day of non-compliance, with the possibility of de-registration if the default continues beyond 90 days. Further, ECI may levy a fine of up to Rs. 50 lakhs if its finds any particulars in the party’s statements as having been falsified. [Para 2.31(c)11] l.        A new section 29H should be inserting penalising parties that contravene the stipulations of section 29B, RPA and section 182 of the Companies Act in terms of accepting contributions from impermissible donors, by levying a penalty of five times the amount so accepted. [Para 2.31(c)12] m.    A new Part IVB, section 29I should be inserted to the RPA dealing with the “Regulation of Electoral Trusts”, and detailing provisions pertaining to their entitlement to accept contributions, disclosure obligations, and penal provisions (apart from losing income tax exemptions) so that the RPA can be amended in line with the changes already made to the IT Act and the ECI guidelines on “Electoral Trust Companies” of 2013. [Para 2.31(c)13] n.      The Commission does not consider a system of complete state funding of elections or matching grants to be feasible, given the current conditions of the country. Instead, it supports the existing system of indirect in-kind subsidies, with section 78B of the RPA being possibly amended in the future to expand these subsidies. [Para 2.31(d)1-4] 2.Regulation of Political Parties and Inner Party Democracy a.       The Commission recommends amending sub-section (5) of section 29A of the RPA requiring that the accompanying memorandum/rules/ regulations with the party’s application under sub-section (1). This accompanying document, by whatever name it is called, should also contain a specific provision stating that the party would shun violence for political gains, and would avoid discrimination or distinction based on race, caste, creed, language or place of residence. [Para 3.17.4, 1] b.      A new Chapter IVC should be inserted dealing with the “Regulation of Political Parties” and incorporating the Commission’s previous recommendations in its 170th Report with certain modifications. Thus, sections 29J to 29Q will deal with internal democracy, party Constitutions, party organisation, internal elections, candidate selection, voting procedures, and the ECI’s power to de-register a party in certain cases of non-compliance. c.       Another section, section 29R should be inserted in the same Part, providing for the de-registration of a political party for failure to contest Parliamentary or State elections for ten consecutive years. [Para 3.17.4, 2] 3.Proportional Representation It is clear that both the electoral systems come with their own merits and demerits – proportional representation theoretically being more representative, while the FPTP system being more stable It is also clear, from the experience of other countries that any changes in India’s electoral system will have to follow a hybrid pattern combining elements of both direct and indirect elections. This, in turn will necessitate an increase in the number of seats in the Lok Sabha, which raises concerns regarding its effective functioning. [Para 4.19.1] As a result, the Law Commission recommends that the findings of the 170th Law Commission Report on the proportional system may be examined by the Government to determine whether its proposals can be made workable in India at present. [Para 4.19.2] 4.Anti Defection Law in India             The Law Commission recommends a suitable amendment to the Tenth Schedule of the Constitution, which shall have the effect of vesting the power to decide on questions of disqualification on the ground of defection with the President or the Governor, as the case may be, (instead of the Speaker or the Chairman), who shall act on the advice of the ECI. This would help preserve the integrity of the Speaker’s office. [Para 5.22] 5.Strengthening the office of the Election Commission of India The ECI should be strengthened by first, giving equal constitutional protection to all members of the Commission in matters of removability; second, making the appointment process of the Election Commissioners and the CEC consultative; and third,creating a permanent, independent Secretariat for the ECI. a.       Article 324(5) of the Constitution should be amended to equate the removal procedures of the two Election Commissioners with that of the Chief Election Commissioner. Thus, equal constitutional protection should be given to all members of the ECI in matters of removability from office. [Para 6.9] b.      The appointment of all the Election Commissioners, including the CEC, should be made by the President in consultation with a three-member collegium or selection committee, consisting of the Prime Minister; the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength); and the Chief Justice of India. Elevation of an Election Commissioner should be on the basis of seniority, unless the three member collegium/committee, for reasons to be recorded in writing, finds such Commissioner unfit. Amendments should be made in the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 to reflect this. [Para 6.12.5] c.       A new sub-clause (2A) should be added to Article 324 of the Constitution to provide for a separate independent and permanent Secretariat for the ECI along the lines of the Lok Sabha/Rajya Sabha Secretariats under Article 98 of the Constitution. This will further improve the independence of the ECI. [Para 6.19 & 6.20] 6.Paid News and Political Advertisements             The issue of paid news and political advertisements should be regulated in the RPA in the following manner: a.       The definitions of “paying for news”, “receiving payment for news” and “political advertisement” should be inserted in section 2 of the RPA. [Para 7.48.4 & 7.48.5] b.      The consequences attached to those indulging in such practices should be delineated by creating i.                  an electoral offence of “paying for news” / “receiving payment for news” in a newly inserted section 127B of the RPA - Not only will the incorporation of this electoral offence make paying for news / receiving payment for news penal, the stringent punishment will ensure that if the candidate themselves are found guilty, then, in all likelihood, they will be disqualified pursuant to section 8(3) of the RPA; [Para 7.49.1] ii.                  a corrupt practice of paying for news under newly inserted sub-clause (iii) in section 123(2)(a) of the RPA. [Para 7.50] c.       In order to curb the practice of disguised political advertisement, disclosure provisions should be made mandatory for all forms of media. The purpose of disclosure is two fold; first, to help the public identify the nature of the content (paid content or editorial content); and second, to keep the track of transactions between the candidates and the media. Thus, a new section 127C should be inserted in the RPA to deal with the non-disclosure of interests in political advertising. The ECI can regulate the specifics of the disclosure required. [Para 7.51.2] 7.Opinion Polls Section 126(1)(b) of the RPA, which prohibits the display of any election matter forty-eight hours before polling begins, is limited to display by means of “cinematograph, television or other similar apparatus”; and does not deal with the independence and robustness of the opinion polls themselves. Thus: a.       The ban on opinion polls in the electronic media does not extend to the print media and section 126(1)(b) should be amended to prevent the publication, publicity, or dissemination of any election matter by print or electronic media. [Para 8.27.1] b.      Section 126(1)(b) should also provide for cognizance being taken only on the basis of a complaint made by order of, or under authority from, the ECI or the Chief Electoral Officer of the State. [Para 8.27.2] c.       The regulation of opinion polls is necessary to ensure that first, the credentials of the organisations conducting the poll is made known to the public; second, the public has a chance to assess the validity of the methods used in conducting the opinion polls; and third, the public is made adequately aware that opinion polls are in the nature of forecasts or predictions, and as such are liable to error. Consequently, new sections 126C and 126D should be inserted in the RPA. [Para 8.28.3] Compulsory Voting The Law Commission does not recommend the introduction of compulsory voting in India and in fact, believes it to be highly undesirable for a variety of reasons described above such as being undemocratic, illegitimate, expensive, unable to improve quality political participation and awareness, and difficult to implement. [Para 9.24] 8. Election Petitions Wide-ranging reforms have been suggested to Part VI of the RPA dealing with “disputes regarding elections” and the proposed amendments have been drafted in the annexure appended to this Report. These include, inter alia: a.         The introduction of one or more “election benches” in each High Court, designated so by the Chief Justice of the particular High Court, exercising jurisdiction over all election disputes under the RPA. A single Judge shall ordinarily exercise such jurisdiction, although the Chief Justice can assign more judges, if they so desire. b.        The procedure for presenting election petitions should be made simpler and less formalistic by:       i.            requiring election petitions to be ordinarily filed in the Principal seat of the relevant High Court, although this can be shifted to another bench or place in the interest of justice;     ii.            removing requirement of impleading those candidates who have lost their security deposit as respondents to an election petition, if the petitioner makes an additional declaration that he himself or any candidate has been duly elected; and   iii.            removing non-compliance with section 117’s stipulation of security for costs as a ground for summarily dismissal under section 86. c.                    The trial of election petitions by the election bench of the High Court should be expedited by providing for       i.                daily trial;     ii.               minimising adjournments, with the possibility of imposing exemplary costs;   iii.               a time limit of 45 days to file a written statement, with a further extension of 15 days, after which such right shall be forfeited; d.      The trial should be concluded within six months from the date of presentation of the petition; otherwise, a report should be sent to the Chief Justice of the High Court explaining the reasons for the delay. e.       The election bench of the High Court should pass its order under section 98 within ninety days from the conclusion of arguments. f.       A new provision, section 98A, should be inserted pertaining to the collection of data (such as thenumber of election petitions filed and pending, the status of each petition, the names of the parties, and designated election bench) by the High Court and uploading it on its website. The ECI has been mandated to prepare an annual report after compiling such data from all the High Courts across the country. g.       Appeals to the Supreme Court should now only be on the basis of a question of law, instead of the earlier provision permitting questions of fact or law as grounds for appeal. This appeal should be filed within 30 days of the High Court’s order, although an extension of a maximum of 30 more days can be granted, with nothing thereafter. The Supreme Court should try and conclude the appeal within three months from the date of appeal. h.      The security for costs has been increased from the existing Rs. 2000 to Rs. 10,000, although section 117 has been amended to empower the election bench of the High Court to grant an extension of time, as considered reasonable, to deposit this new security amount. [Para 10.37] 9.NOTA and the Right to Reject The Law Commission currently rejects the extension of the NOTA principle to introduce a right to reject the candidate and invalidate the election in cases where a majority of the votes have been polled in favour of the NOTA option. This is premised on the fact that, first, the underlying premise of the Supreme Court’s decision in NOTA was the importance of safeguarding the right to secrecy, and this secrecy rationale does not pre-empt the right to reject. Second, good governance, the motivating factor behind the right to reject, can be successfully achieved by bringing about changes in political horizontal accountability, inner party democracy, and decriminalisation. However, the issue might be reconsidered again in the future. [Para 11.15] 10. The Right to Recall             The Law Commission is not in favour of introducing the right to recall in any form because it can lead to an excess of democracy, undermines the independence of the elected candidates, ignores minority interests, increases instability and chaos, increases chances of misuse and abuse, is difficult and expensive to implement in practice, especially given that India follows the first past the post system. [Para 12.20] 11. Totaliser for Counting of Votes The Commission reiterates and endorses the ECI’s suggestion for introducing a totaliser for the counting of votes recorded in electronic voting machines to prevent the harassment of voters in areas where voting trends in each polling station can be determined. Prior to the introduction of EVMs, ballot papers could be mixed under Rule 59A of the Election Rules, although this was not permitted for EVMs. Using a totaliser would increase the secrecy of votes during counting, thus preventing the disclosure of voting patterns and countering fears of intimidation and victimisation. Thus, similar to the existing Rule 59A, the Commission proposes to amend Rule 66A to empower the ECI to decide when, and in which constituency and polling booths, to employ a totaliser, after taking into consideration various factors and the overall context of the elections. [Para 13.7] 12.Restriction on Government Sponsored Advertisements The Commission recommends regulating and restricting government sponsored advertisements six months prior to the date of expiry of the House/Assembly to maintain the purity of elections; prevent the use of public money for partisan interests of, inter alia, highlighting the government’s achievements; and ensure that the ruling party or candidate does not get an undue advantage over another in the spirit of free and fair elections. This can be achieved by inserting a new Chapter VIIB in Part V of the RPA prohibiting State/Central government sponsored advertisements in the print or electronic media or by way of banners and hoarders, six months prior to date of expiry of the term of the Lok Sabha/Vidhan Sabha. However, an exception has been carved out for advertisements highlighting the government’s poverty alleviation programmes or any health related schemes [Para 14.6] 13.Restriction on the Number of Seats from which a Candidate May Contest The  Nomination of Candidates  from only one constituency.hcih e determinede has been used,--High Courts across the country.rome Con Commission recommends an amendment of section 33(7) of the RPA, which permits a candidate to contest any election (parliamentary, assembly, biennial council, or bye-elections) from up to two constituencies. In view of the expenditure of time and effort; election fatigue; and the harassment caused to the voters, section 33(7) should be amended to permit candidates to stand from only one constituency. [Para 15.4] 14.Independent Candidates             The Law Commission recommends that independent candidates be disbarred from contesting elections because the current regime allows a proliferation of independents, who are mostly dummy/non-serious candidates or those who stand (with the same name) only to increase the voters’ confusion. Thus, sections 4 and 5 of the RPA should be amended to provide for only political parties registered with the ECI under section 11(4) to contest Lok Sabha or Vidhan Sabha elections. [Para 16.16&16.17] 15. Preparation and Use of Common Electoral Rolls             The Law Commission endorses the ECI’s suggestions regarding the introduction of common electoral rolls for Parliamentary, Assembly and local body elections. However, given that introducing common electoral rolls will require an amendment in the State laws pertaining to the conduct of local body elections, the Central Government should write to the various States in this regard. We hope that the States will consider amending their laws based on the suggestions of the ECI and the Law Commission. [Para 17.6]