Sunday, July 25, 2010

Constitutional Analysis Of National Identification Authority of India Bill 2010

Aadhar project of India and the UIDAI are both operating without any law empowering them to act. This is strange as the Indian government has deemed it fit to confer extreme powers in the hands of an authority that does not exists in the eyes of law. Further, due the controversial nature of the work assigned to UIDAI, civil liberties violations are bound to arise in future. The Aadhar project must have been first supported by a law and thereafter only it should have been launched. Due to industrial lobbying and private profits consideration, the government of India has sacrificed the precious and sacrosanct human rights for considerations better known to it. This is the first and most comprehensive analysis of the National Identification Authority of India Bill 2010 by Praveen Dalal, Managing Partner of Perry4Law.

The National Identification Authority of India Bill 2010 (Bill) has been recently proposed by the Unique Identification Authority of India (UIDAI). The Bill, if made a law, would be called National Identification Authority of India Act, 2010 (Act). Here are some of the salient features of the Bill:

(1) The Bill is still not a valid piece of legislation till it is approved by both the Houses of the Parliament, receives President’s assent and then finally notified in Official Gazette by the Government of India.

(2) The Bill is not a comprehensive one and neither has it intended to cover all the aspects of Aadhar project of India. The Bill’s main objective is to provide legitimacy to the Unique Identification Authority of India (UIDAI) renamed as the National Identification Authority of India (NIDAI) and for matters connected therewith or incidental thereto.

(3) The Bill has picked up many provisions of the Information Technology Act 2000 (IT Act 2000) for various issues. One of them also pertains to the extra territorial application of the Bill.

(4) The Bill is a good piece of work as far as administrative aspects of Aadhar project is concerned. However, it has almost nothing to offer regarding protecting civil liberties of Indians. Privacy issues, data protection issues, etc are missing from the Bill.

(5) By making the IT Act 2000 a base for many of its provisions, the Bill has incorporated the weaknesses and lacunas of the same. It seems the members drafting the Bill did not take pain to do some good research and formulate new and better provisions.

(6) The Bill’s greatest strength is its Public Private Partnership (PPP) Model through which it is seeking the expertise and assistance of various individuals, institutions, etc. The Bill is also great to the extent it catering the requirements of Research and Development regarding some of the most crucial aspects of contemporary times.

(7) The Bill has its own list of Offences and Penalties. The list though not adequate but if supported by different and supplementary legislations would strengthen the Bill. These provisions have been inspired by the IT Act 2000 with all its limitations and demerits.

(8) Provision regarding delegation of authority of the NIDAI is also incorporated to bring flexibility among the functioning of the authority. The only fact that has to be kept in mind is that this delegation must not be abused for private gains of private players.

(9) The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force. Thus, other law would supplement the provisions of this Bill and make it more effective.

In short, this is a great enabling legislation for the UIDAI/NIDAI and its administrative functions. It has taken care of most of the aspects that would allow the authority to perform its functions effectively, transparently and with accountability. Proper care has been taken to use PPP Model as well as to use the expertise of others.

On the negative side, the Act does not cater the civil liberties requirement that is also the toughest challenge before it and the first and foremost challenge for its authority. This may be due to the fact that the Act never intends to cater the civil liberties requirements and has left it for the Indian government through a separate legislation.

The NIDAI would face the challenge of “Unconstitutionality” on two counts. Firstly, the authority must be constituted by a proper law. This requirement would be fulfilled if the Bill is made an enforceable law. The second is that it must not violate the Civil Liberties of Indians. This is a tricky issues and the same has also been avoided by the present Bill. The Indian government has promised to enact laws regarding privacy and data protection very soon.

If the Bill and those laws are combined, they may take care of the constitutionality attacks and the NIDAI may proceed further for its tasks. But for the time being, both Aadhar Project and UIDAI/NIDAI are “Unconstitutional” Project and Authority.

International Commercial Arbitration In India And Commercial Transactions

Information and communication technology (ICT) has given a new meaning to international commercial transactions and business. E-commerce has now become an indispensable part of our day to day commercial activities. This has also given rise to both traditional as well as contemporary international commercial disputes all over the world. So much so that the Law Minister Veerappa Moily has said that a commercial court would be set up in each high court and all cases with an investment exceeding a certain sum will be tried in the commercial court.

At the same time alternative dispute resolution (ADR) mechanism in India is also under the process of rejuvenation. Though online dispute resolution (ODR) and e-courts in India are still a distant dream yet the procedure of bringing suitable amendments in the existing arbitration law of India is in pipeline.

Thus scope of International Commercial Dispute Resolution (ICDR) Services in India is increasing day by day. ICDR can be availed of for disputes arising out of contracts on sales of goods, distributorship, agency and intermediary contracts, construction, engineering and infrastructure contracts, intellectual property contracts, domain name dispute resolutions, joint venture agreements, maritime contracts, employment contracts, etc. The list is just illustrative as the business transactions are too many to categorised here.

The traditional litigation methods of dispute resolution are not very helpful for such high staked commercial disputes. This has necessitated the requirement for ADR mechanisms like Arbitration, Mediation, Conciliation, etc.

India has tremendous capabilities for both ADR and ODR. However, India is lacking on the front of a good law in this regard. The Arbitration and Conciliation Act, 1996 has proved more to be a burden than a relief. There is an emergent need of reformulating Indian laws in this regard.

Public Services (Protection and Regulation) Bill, 2010 Of India

Very few laws are as important as is Public Services (Protection and Regulation) Bill, 2010 of India. It has, however, not received the attention that it required. Even there is no mention whether it would be passed in the current winter session (July-August 2010) of the Parliament of India or not.

The “Model Public Services Law” was one of the items included in the President’s Address to Parliament on the 4th June, 2009. The law is to cover functionaries providing important social services like education, health, rural development, etc., and commit them to their duties and for that purpose, Legislative Department has attempted a tentative Bill titled the Public Services (Protection and Regulation) Bill, 2010.

The legislation seems to be a good one and like right to information act can go a long way in reforming and streamlining public services in India. Removal of corruption and bringing transparency in public dealings must be the main objective of the ultimate bill.

Interested persons or institutions may send their suggestions or recommendations to the ministry of law, India.

National Litigation Policy Of India

Law Minister Veerappa Moily has recently released the National Litigation Policy of India (NLPI). It has many good legal and judicial reforms ideas. From avoiding unnecessary litigation by governmental departments to use of alternative dispute resolution (ADR) mechanism, the NLPI is full of great ideas.

However, the NLPI is also deficient when it comes to use of information and communication technology (ICT) for legal and judicial purposes. The NLPI lacks ICT impetus as it failed to address the issues like e-courts and online dispute resolution (ODR) mechanism as means of speedy and effective dispute resolutions.

Further, in the absence of political will, India also cannot be a global arbitration hub. The absence of political will would also jeopardise the NLPI and the same may remains as mere words.

Moily is working really hard in the direction of legal and judicial reforms and all he need is accomplishment of the tasks assigned in NLPI. Further, he must also have a pro active approach towards use of ICT for legal and judicial purposes.

Moily must insist upon time bound achievements regarding crucial projects like e-courts and ODR. There is also an emergent need of techno legal trainings of police officers, lawyers, judges, court staffs, etc.

Let us hope that Moily would pay attention to all these crucial aspects so that legal and judicial reforms can be a reality in India.