Common Cause Updates

Common Cause has been sending its submissions to the questionnaire-based consultation started by the five-member Committee for Reforms in Criminal Laws, set up by the Ministry of Home Affairs. The questionnaire has been divided into six tranches and it concluded on October 9, 2020. The Committee has also been tasked with looking into the possibility of newer legislation on varied subjects, right from sedition to marital rape. In addition, it will weigh in on myriad issues, including whether mob lynching should be penalised as a separate offence.

So far, we have submitted our detailed comments on two instalments of the questionnaire related to the reforms process. The responses to the First Consultation on Substantive Criminal Law, submitted on July 17, 2020, dealt with Strict Liability Offences, Offences Against the State, Offences Affecting Human Body, Sexual Offences, and many other issues.

We offered our responses to the Second Consultation on Substantive Criminal Law on August 11, 2020, which focussed on Offences By or Relating to Public Servants, Offences Relating to Public Tranquillity, Offences Affecting the Public Health, Safety, Convenience, Decency and Morals, among other things.

In the second leg of the consultation process Common Cause offered detailed commentary on the question of Hate Speech, and whether it should be criminalised as a separate offence under the IPC. We suggested an amendment to the existing hate speech provisions within the IPC. We recommended that they should include the six factors introduced under the Rabat Plan of Action by the Office of the UN High Commissioner for Human Rights.

Draft Code on Wages (Central) Rules 2020

On August 20, 2020, Common Cause sent a representation to the Deputy Director, Union Ministry of Labour and Employment, on the Draft Code on Wages (Central) Rules 2020, which is aimed at providing the base and procedures to implement the Code on Wages, 2019. Our specific suggestions included:

• There should be eight hours of work in a day and 48 hours in a week, as well as one or more intervals of rest which in total shall not exceed one hour daily.
• The number of work hours in a normal working day, including rest intervals, should not spread over more than 10 and ½ hours.
• Rest day should be treated as leave with wages.
• To clarify whether there will be a national level floor wage or state level variations.
• Clarity on methodology used to determine the floor wage.
• Representation of Trade Unions in the floor wage fixation committees.
• Revisiting the criteria for determining wages as developed in the Raptakos Brett Case and the 15th International Labour Conference, as these norms were evolved decades ago.

UNEP Mineral Resource Governance Resolution

In response to UNEP (United Nations Environment Programme)’s Regional Consultative Meetings on the United Nations Environment Assembly resolution on Mineral Resource Governance, Common Cause submitted its comments and recommendations on September 3, 2020.

Some of our suggestions were:

1. Minerals represent great wealth and a global wealth asset management system is in order to ensure that mineral wealth is not depleted with the present generation.
2. IMF and related standard setters must amend their standard to treat extraction as the sale of great inherited wealth and the State has to be held not only responsible, but also liable for preservation of the mineral resources (not just limited to prohibition of illegal/unsustainable mining). This includes a high security mineral supply chain system, best practices from outsourcing contracts, system auditors, a whistle-blower reward and protection scheme, etc.
3. The State shall also be responsible for conducting proper due diligence to ensure that individuals and bodies dealing with mineral wealth follow the highest standards of integrity.
4. Transparency charters must be established, with complete public access and empowerment to verify all or any data concerning outsourced service providers converting mineral wealth to financial wealth.

Implementation of fair mining and creation of a global legal framework to deal with mineral wealth. In addition, we strongly advocated that UNEP (a) adopt the intergenerational equity principle as the foundation principle for examining mineral resource governance, (b) adopt the “shared inheritance” paradigm for mineral resources and eschew “revenue”, “tax,” “earnings” or “income” when referring to royalty and other mineral sale proceeds, (c) recommend that IMF and related standards setters amend their standard to treat extraction as the sale of great inherited wealth, (d) recommend that states and other trustees / managers of mineral wealth treat it as wealth held in trust for the people and future generations separate from proprietary property, (e) recommend the implementation of the full framework, especially the five principles of fair mining, (f) recommend that UNCLOS (United Nations Convention for the Law of the Sea) be updated to reflect our improved understanding of issues of biodiversity, corruption, transparency, etc from extraction of minerals, (g) similar legal treaties be negotiated for the other global mineral commons.

Draft Health Data Management Policy

Common Cause sent a representation to the Chief Executive Officer, National Health Authority, in response to the draft Health Data Management Policy on September 21, 2020. The draft policy claims to protect citizens’ health data by regulating its collection and storage.

Our specific concerns included:

• Unless there is an overarching data protection law, sectoral laws and specific rules governing the health data management policy in place, citizens cannot objectively reach a decision to disclose their health data. In the absence of these safeguards, there is a void concerning the treatment and security of data. This blindsides potential card holders into divulging information against their interests.
• It is uncertain whether access to healthcare will actually increase with the implantation of this policy. Online health services will clearly not be helpful for rural populations cut off from electricity and the internet.
• The policy can exercise the theory of Contextual Integrity by Dr. Helen Nissenbaum to explain the data flows to potential data principals.
• There should be a timely resolution of concerns raised by data principals. A specific time frame for problem resolution is not mentioned in the policy document. Also, the Draft Policy states that the intimation of any requests by the data principal can only be made through an electronic medium. Given the deep digital divide in our country, the NHA should re-examine this provision.
• News reports have indicated that since the launch of the national data health mission, over 1 lakh health IDs have been generated. In the absence of a Data Protection legislation, the implementation of this scheme is contrary to the directions laid down by the Supreme Court in the case of Justice K.S. Puttuswamy v. Union of India.

Information Asymmetry in the Delivery of Challans

In response to the growing distress of common citizens regarding the new e-challan system and the e-payment gateway launched by Delhi Traffic Police recently, Common Cause sent representations to the Delhi Police Commissioner and the Union Minister, Ministry of Roadways, Transport & Highways on October 29, 2020 and November 3, 2020 respectively. Aimed at making the challan process easy and cashless for vehicle drivers and owners, the new system replaces the earlier practice of manual issuance of challan.

We requested that clarifications be issued on:

• The exact procedure/mode for the issuance and delivery of challans
• The procedure followed for communication of challans issued online.
• In addition, we also suggested that the traffic police must carry out a campaign with the help and participation of the citizens to ensure that drivers across all sections of the society are well aware of the automated systems in place. This will improve compliance of traffic rules and foster respect for the rule of law in the country.

<< Common Cause Journal July Sep 2020