The Jan Vishwas (Amendment of Provisions) Bill, 2022
Highlights of the Bill
§ The Jan Vishwas
(Amendment of Provisions) Bill, 2022 amends 42 laws, across multiple sectors,
including agriculture, environment, and media and
publication. Acts being amended include the Indian Post Office Act, 1898,
the Environment (Protection) Act, 1986, the Public Liability Insurance Act,
1991, and the Information Technology Act, 2000.
§ The Bill converts
several fines to penalties, meaning that court prosecution is not necessary to
administer punishments. It also removes imprisonment as a punishment for
many offences. All offences under the Post Office Act, 1898 are being
removed.
§ Fines and
penalties for certain offences in specified Acts are being increased.
These fines and penalties will be increased by 10% of the minimum amount
every three years.
§ The Bill amends some
Acts to provide for the appointment of Adjudicating Officers to decide
penalties. It also specifies the appellate mechanism.
Key Issues and Analysis
§ The Bill omits all
offences under the Indian Post Office Act, 1898. This raises two questions.
First, since several offences under this Act can only be committed by
post office officials, it is not clear how deleting those offences is relevant
to the stated objective of improving ease of living and doing business.
Second, the omitted offences include the unlawful opening of postal
articles. Removing punishments for this offence may lead to unjustified
invasions of privacy.
§ The Adjudicating
Officers appointed to award penalties for environmental offences are senior
officials of the Executive branch. They may lack the required technical
and judicial competence to decide on such penalties.
§ The Bill creates
an Environmental Protection Fund for education, awareness, and research for
environment protection. The reasons for creating this fund are unclear
given the overlap between its purpose and that of existing funds of the Central
and State Pollution Control Boards.
§ The Bill
decriminalises offences under the High Denomination Bank Notes (Demonetisation)
Act, 1978. This Act was used to remove high-value banknotes as legal
tender on January 16, 1978. This deadline also applied to regulatory
compliances under that Act. Therefore, amending punishments under this
Act after 45 years may not be relevant.
PART A: HIGHLIGHTS OF THE BILL
Context
The Ease of Doing
Business rankings, published by the World Bank, cover various aspects of
business activity, including contract enforcement and tax compliance.[1] India ranked 132 out of 185
countries in 2013, and improved to 63 in 2020, after which the rankings were
discontinued.1,[2],[3] Over the
years, various expert committees including the Standing Committee on Commerce
(2015) and the Company Law Committee (2019, 2021) have recommended reforms to
reduce deterrents to business activity.[4] The Company Law Committee
identified criminal liability for technical or procedural contraventions to be
a deterrent to business activity.[5],[6]
Subsequently, the Companies Act, 2013 was amended in 2019 and 2020 to
re-categorise offences as civil contraventions that can be awarded by a
government officer.[7],[8]
The Jan Vishwas (Amendment
of Provisions) Bill, 2022, was introduced in LokSabha on December 22, 2022.
It amends 42 Acts to decriminalise certain offences, reduce the
compliance burden on individuals and businesses and ensure ease of doing
business. The Bill was referred to a Joint Parliamentary Committee
(Chair: Mr. P.P. Chaudhary), which submitted its report on March 17, 2023.[9]
The Committee
recommended amendments to the severity of certain punishments. For
example, under the Merchant Shipping Act, 1958, failing to inform a notified
authority of the ship’s involvement in an accident is punishable by up to one
year’s imprisonment, a fine of up to Rs 10,000, or both. The Bill amends
this to a penalty of five lakh rupees. The Committee recommended omitting
the amendment due to the environmental implications of such
contraventions.9 For some laws decriminalised by the Bill, such as those
in the Boilers Act, 1923, the Committee also recommended amendments to provide
for Adjudicating Officers and appellate authorities of at least one rank above
the Adjudicating Officer.9
Key Features
§ The Bill amends 42
Acts which include: the Indian Post Office Act, 1898, the Environment
(Protection) Act, 1986, the Public Liability Insurance Act, 1991, and the
Information Technology Act, 2000.
§ Decriminalising
certain offences: Under the Bill, several offences with an
imprisonment term in certain Acts have been decriminalised by imposing only a
monetary penalty. For example, under the Information Technology Act,
2000, disclosing personal information in breach of a lawful contract is
punishable with imprisonment of up to three years, or a fine of up to five lakh
rupees, or both. The Bill replaces this with a penalty of up to Rs 25
lakh. In certain Acts, offences have been decriminalised by imposing a
penalty instead of a fine. For instance, under the Patents Act, 1970, a
person selling a falsely represented article as patented in India is subject to
a fine of up to one lakh rupees. The Bill replaces the fine with a
penalty, which may be up to ten lakh rupees.
§ Removal of
offences: The Bill
removes certain offences. These include all offences under the Indian
Post Office Act, 1898.
§ Revision of fines
and penalties: The Bill increases the fines and penalties
for various offences in the specified Acts. The fines and penalties will
be increased by 10% of the minimum amount every three years.
§ Adjudicating
Officers: The central government may appoint one or more
Adjudicating Officers for determining penalties. These Officers may
summon individuals for evidence and conduct inquiries into violations of the
respective Acts. These Acts include the Agricultural Produce (Grading and
Marking) Act, 1937 and the Public Liability Insurance Act, 1991. The Bill
also specifies the appellate mechanisms for the orders passed by these
Officers. For instance, in the Environment (Protection) Act, 1986,
appeals against the Adjudicating Officer’s orders may be filed with the
National Green Tribunal within 60 days.
PART B: KEY ISSUES AND
ANALYSIS
Omission of offences under the
Indian Post Office Act, 1898
The Bill removes
all offences and penalties under the Indian Post Office Act, 1898. This
raises two issues.
Omission of
offences under the Act may not be relevant to legislative intent
Offences being
removed include those committed by officers employed in post offices, such as
theft or dishonest misappropriation of postal articles and fraud in connection
with postal marks. It is unclear why such offences are being removed,
since they may not be relevant to the objective of the Bill. The stated
objective of the Bill is to decriminalise certain offences to promote ease of
living and doing business.
Omission of
offences under the Act may lead to privacy issues
The Act punishes
officers of post offices for the illegal opening of postal articles with
imprisonment of up to two years, a fine, or both. Persons other than
postal officials are also penalised for opening a mail bag. The Bill
removes all these provisions. This may raise questions regarding privacy.
Highly personal information, such as health insurance information and
credit card statements, may be received by post. Deleting these offences would
remove the safeguards against invasions of privacy. This may go against
the Right to Privacy recognised by the Supreme Court in 2017. These
violations are not covered by other laws, such as the Indian Penal Code, 1860,
which punish only where they are accompanied by theft or misappropriation.[10]
Competence of
Adjudicating Officers added under environmental laws
The Bill amends
the adjudication process under the Air (Prevention and Control of Pollution)
Act, 1981 (Air Act) and the Environment (Protection) Act, 1986 (EP Act).
Currently, contraventions of both laws are prosecuted in court only upon
a complaint by specified authorities, or by any person who has given these
authorities 60 days’ notice of their intention to file a complaint.[11] Under the Air Act, these authorities
are the Central Pollution Control Board (CPCB) and the respective State
Pollution Control Boards (SPCBs). Under the EP Act, these authorities are
the notified officers of the central government. The Bill provides for
Adjudicating Officers to decide penalties under both Acts, and also to file
complaints in court under the EP Act. Appeals against their orders lie
with the National Green Tribunal. Under both Acts, the officer would be
of the rank of Joint Secretary to the central government or above, or a
Secretary to the state government. This new process of adjudication
raises a few issues.
Independence of
Adjudicating Officers
Governments or
their agencies may violate the Air Act and the EP Act. For example, in
2022, the National Green Tribunal penalised Singareni Collieries Company
Limited, a coal mining company jointly owned by the central government and the
Government of Telangana, for excess mining.[12] The question is whether government
officers would be sufficiently independent as adjudicating authorities in such
cases.
Judicial and
technical competence of Adjudicating Officers
Under the Bill,
penalties for failing to comply with the EP Act, or the rules and directions
made under it range from Rs 5,000 to Rs 15 lakh (300 times the lower limit).
The Bill also adds the criteria for the Adjudicating Officer to decide
penalties under the EP Act. These include: (i) the population and area
affected, (ii) the duration and frequency of violation, (iii) the vulnerability
of those affected, and (iv) undue gain from the contravention. Given the
wide band of penalties and the extent of discretion involved in balancing
various criteria, adjudicating cases under both the EP Act and Air Act is
effectively a judicial role. Therefore, the question is whether the
Adjudicating Officer, who would be a Joint Secretary to the central government
or a Secretary to the state government, would be competent to decide these
penalties.
Further, there is
significant technical input involved in legal proceedings for offences under
the Air Act. These Adjudicating Officers may lack the technical
competence necessary to decide all penalties under the Air Act and the EP Act.
For example, under the Air Act, a complaint may be filed in a court by
the CPCB or an SPCB, or by any person who has first given notice to the
relevant pollution control board. Officers of pollution control boards
are empowered to collect samples of air emissions under the Act. These
samples are then analysed by expert analysts, whose reports may be produced as
evidence in legal proceedings.
Under the Bill,
the manner of conducting inquiries and deciding penalties by an Adjudicating
Officer under the Air Act is to be prescribed by rules. The role of
pollution control boards in assessing environmental damage in proceedings
before the Adjudicating Officer is not specified in the Bill.
Relationship
between Adjudicating Officers and the judiciary
Under the Bill,
the Adjudicating Officer will be responsible for receiving and hearing
complaints against contraventions under the EP Act. Their decisions can
be appealed to the National Green Tribunal, whose decisions are appealed to the
Supreme Court. The Bill also empowers the Adjudicating Officer to file
complaints in court for offences under the EP Act. The question is
whether there is a need for a parallel process in which the Adjudicating
Officer can also file a complaint in court. This may be conflating the
role of an adjudicatory body with that of the prosecution.
Functional overlap
between proposed and existing Funds
The Bill adds an
Environmental Protection Fund under the EP Act. The Fund will be used for
education, awareness, and research for environmental protection, as well as the
expenses of implementing these Acts. Other funds exist which fulfil a
similar purpose, hence the question is whether this new Fund is necessary.
Both the CPCB and
SPCBs have their own Funds.[13],[14] The CPCB and SPCBs both bear responsibility
for implementing provisions of the Air Act and the EP Act.[15],[16],[17],[18] They also
conduct research, programme implementation, and media programmes for the
control of air and water pollution.[19]
Since these Funds already provide for education, awareness, and research for
environmental protection, the need for a new Fund for the same purposes is
unclear. As per a 2017 report of the Comptroller and Auditor General,
the CPCB and SPCBs have sufficient funds, but lack the personnel and
infrastructure to utilise them fully.[20]
Similar issues may persist with the new Fund.
Rationale for
amending the High Denomination Bank Notes (Demonetisation) Act, 1978
The High
Denomination Bank Notes (Demonetisation) Act, 1978 sought to curb illegal
transactions which relied upon high-denomination banknotes, by declaring them to
cease to be legal tender on January 16, 1978.[21]
These included banknotes with denominations of Rs 1,000, Rs 5,000, and Rs
10,000. The Act requires banks to prepare declarations regarding the
volume of high-value banknotes held by them, and submit them to the Reserve
Bank of India.[22]
Any person could also exchange such banknotes before January 19, 1978, by
submitting them along with a declaration providing certain details.[23]
Offences include failing to present this declaration before the deadline, or
knowingly submitting a false declaration. The Act provides for
imprisonment for bank officials making false returns, or persons making false
declarations while submitting the banknotes. The Bill seeks to remove
imprisonment as a punishment for these offences. These banknotes ceased
to be legal tender and the deadline for exchanging them ended 45 years ago.
It is therefore unclear why these penalties are relevant today, and need
to be decreased. The Joint Parliamentary Committee on the Bill (2023)
recommended repealing the Act itself.9
