Monsoon Session Of Parliament: Highlights
The Monsoon Session of the Parliament from July 18 to August 10 witnessed a lot of action, with several bills getting passed. The highlights of key legislative actions during the Monsoon session are given below:
Specific performance of contract to be the norm : Amendment to Specific Relief Act
The Parliament passed the Specific Relief (Amendment) Bill 2018, proposing to bring significant amendments to Specific Relief Act 1963. On July 23, the Rajya Sabha passed Amendment Bill, which was passed by the Lok Sabha on March 15, 2018.
One of the major features of the amendment is that it takes away the discretionary power of courts in ordering specific performance of contract, by stating that specific performance of contract should be compulsorily enforced by the Court. As per Section 10 of the Act (as it stood before amendment) specific performance of contract ‘may’ be enforced by the Court in its discretion. As a result of wide discretionary powers, the courts often award damages for breach of contract as a general rule and grant specific performance as an exception. As per the present scheme of the Act, to obtain a decree of specific performance, the plaintiff has to appeal to the discretionary powers of the Court on the basis of grounds in Section 20. Section 20( as it stood before amendment) states that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. This Section 20 has been totally done away with by the amendment, by substituting it with another provision.
The amendment wholly substitutes Section 10 by stating that specific performance of a contract shall be enforced by the court. Similar discretionary power of Courts as per Section 11 in granting specific performance in relation to trusts is also taken away by the amendment, by making it compulsory even for trusts.
The effect of the amendment will be that the plaintiff can seek specific performance of contract as a matter of course, without having to prove special circumstances. The amendment also introduces the concept of "substituted performance", enabling a party to get the contract performed by a third party at the cost of defaulting party. Read here to know more about other key provisions of the amendment.
Interim compensation to complainant : Amendment to Negotiable Instruments Act
Negotiable Instruments(Amendment) Bill was passed by the Parliament in this session. The amendment introduces Section 143A in the principal Act for interim compensation up to 20% of the cheque amount to the complainant during the trial proceedings.The amendment also introduces Section 148 in the Act, empowering the appellate court to direct deposit of a minimum of 20% of the cheque amount in appeal by the drawer against conviction, within a period of sixty days. This amount can be released to the complainant and has to be returned to the accused if the appeal is allowed.
The amendment was notified by the Ministry of Law and Justice on August 2. The amendment bill passed by the Paliament may be read here.
Death for child rape : Criminal Law Amendment
The Criminal Law(Amendment) Bill passed by the Parliament makes the rape of a girl below the age of twelve years an offence punishable with death. To this end, the Bill amends provisions of Indian Penal Code(IPC), Code of Criminal Procedure, Evidence Act and Protection of Children from Sexual Offences Act (POCSO).
It replaces the Ordinance promulgated by the Central Government in April 2018, in wake of the public outcry over Kathua incident of rape and murder of a minor girl.
Punishment of rape of a woman is enhanced to minimum of ten years imprisonment from seven years imprisonment. Rape of woman aged below 16 years and 12 years are treated as separate offences. Rape of woman aged below 16 years attracts a minimum punishment of 20 years imprisonment. Rape of woman aged below 12 years is punishable with death penalty.
The amendments brought to CrPC mandate completion of investigation within a period of two months. The amendment also bars grant of anticipatory bail to persons accused of raping minors. Read here for more detailed analysis of the amendment.
Apex Court Verdict Diluted : SC/ST Act Amendment.
The Scheduled Castes and Scheduled Tribes(Prvention of Atrocities) Amendment Bill passed by the Parliament on August 9 seeks to dilute the controversial verdict of the Supreme Court in Dr. Subhash Kashinath Mahajan .
By way of the Amendment, a new section 18A has been inserted in the Act of 1989, which does away with the court-imposed requirements of undertaking preliminary inquiry and of procuring approval prior to making an arrest. It also restores the unconditional ban on the grant of anticipatory bail in the event of arrest for an offence under the Act.
The Amendment expressly overrides any “judgment or order or direction of any court” in as much as it contains a non-obstante clause to that effect.
In contrast to the directions issued by Supreme Court, the Amendment Bill asserts that in cases under the Atrocities Act, no procedure other than that specified under the Act and the Cr. P. C. shall apply. To read the Bill, read here.
Prior Sanction For Investigation : Prevention of Corruption Act Amendment
The Prevention of Corruption(Amendment) Bill - passed by the Rajya Sabha on July 19 and Lok Sabha on July 24-brings drastic changes to the principal Act. The Bill has been pending since 2013.
The amendment includes specific provision to treat giving of bribe as an offence. Companies and commercial entities are also covered under the offence of giving bribe. The offence of criminal misconduct is re-defined to cover only fraudulent misappropriation of property and illicit enrichment(amassing wealth disproportionate to one's known sources of income). The amendment also makes it necessary to obtain prior sanction before launching investigation against a public servant. Union Minister Arun Jaitley said that the amendment will ensure that honest officers will not be harassed, and that it corrected a fundamental flaw in the Act which was enacted in the pre-liberalisation regime and had not anticipated the kind of risk which could be faced by honest decision makers.
For detailed analysis of the amendment and its comparison with the principal Act, read here.
The Bill may be read here
A Critical Comment on the Bill Here
Fugitive Economic Offenders Act 2018
The Bill was introduced in the budget session during March, in the wake of Nirav Modi-Mekul Choksi scam. A person is declared as a fugitive economic offender if :- (i) an arrest warrant has been issued against him for any specified offences where the value involved is more than Rs 100 crore, and (ii) he has left the country and refuses to return to face prosecution.
The declaration will be made by the Special Court designated under the Prevention of Money Laundering Act 2002. Application for declaration as fugitive economic offender can be filed in the Special Court by the authorized officer. The Act allows authorities to attach the assets of the fugitive in India, during the pendency of application. Upon declaration as fugitive economic offender, the properties and assets of the fugitive can be confiscated and vested in Central Government.
The Bill was passed by Lok Sabha on July 19, and Rajya Sabha on July 25. The Government has notified the Act on July 31. The text of the Act may be read here.
National Sports University Act 2018
The Act establishes a National Sports University, which will be headquartered in Manipur. The University will undertake research on physical education, strengthen sports training programmes, and collaborate internationally in the field of physical education. The Bill was cleared by the Lok Sabha on August 3, and by the Rajya Sabha on August 9. The text of the Act may be read here.
The Homeopathy Central Council(Amendment) Act 2018
The Act says that homeopathy medical colleges set up or opened new courses before the amendment have to take recognition from the central government within a year. If they fail to do so, the medical qualifications granted to students will lose recognition under law. The Bill was passed by the Lok Sabha on July 31 and by Rajya Sabha on August 9.
Bills Passed by the Lok Sabha
Students Can Be Detained In Class : RTE Amendment
The Right to Education(Amendment) Bill passed by the Parliament removes the absolute bar against detention of students up to Class VIII. The amendment gives discretion to state governments to decide whether or not to allow holding back of students until completion of elementary education.
The amendment bill substitutes present Section 16 wholly with a new provision. The new provision states that there should be regular examination in class five and class eight at the end of every academic year. It further states that additional opportunity for a student failing in such regular examination has to be provided within two months from the date of declaration of result. Furthermore, state governments are given the power to allow schools to hold back a student in class five or class eight, if he fails in the re-examination. It is also clarified that the governments are at liberty to decide to not to hold back a student in any class till the completion of elementary education. Thus, the amendment gives discretion to state governments to decide whether or not to allow holding back of students until completion of elementary education.
However, the amendment has not disturbed the original prohibition against expulsion of a student till completion of elementary education. It is explicitly stated in the substituted provision that no child shall be expelled from school till the completion of elementary education. The Lok Sabha passed the Bill on July 18. To read the Bill, click here.
Home buyers as Financial Creditors : IBC Amendment.
The Insolvency and Bankruptcy Code(Second Amendment) Bill 2018 was passed by the Lok Sabha on July 31. One of the significant features of the Bill is that it recognizes home buyers, who have invested money in real estate projects for allotment of residential flats, as financial creditors.
The amendment also proposes to introduce special process for micro, small and medium enterprises, by introducing Section 240A. The newly proposed section empowers Central Government to issue notification specifying special process for such enterprises.
The Bill further states that corporate rescue plan should get the approval of Competition Commission of India, if the plan contains a proposal for combination( as per sub-section(4) inserted in Section 31).
The minimum percentage of votes in the committee of creditors for approval of resolution is lowered from 75% to 66% as per amendment proposed to Section 12.
The newly proposed Section 238A makes Limitation Act 1963 applicable to proceedings before the Adjudicating Authority, NCLAT, DRT and DRAT. For more about the Bill, read here.
Pecuniary Jurisdiction Reduced : Commercial Courts Amendment.
The Commercial Courts, Commercial Divisions and Commercial Appellate Divisions of High Courts(Amendment) Bill 2018 passed by the Lok Sabha on August 1 seeks to lower the pecuniary jurisdiction of Commercial Courts from Rs 1 Crore to Rs 3 lakhs.
The Bill also proposes inclusion of a special chapter, Chapter IIIA, to lay down procedure for pre-institution mediation and settlement of commercial disputes. All disputes, which do not contemplate urgent interim relief, have to compulsarily undergo this mediation process. Suit cannot be instituted without exhaustion of mediation process. It is made clear in the Bill that the changes will apply only to cases filed on or after the commencement of the amendment Act. For more about the Bill, read here
Anti- Trafficking Bill
The Lok Sabha on July 26 passed "The Trafficking of Persons(Prevention, Protection and Rehabilitation) Bill 2018”. The Bill is intended to prevent trafficking of persons, especially women and children and to provide care, protection and rehabilitation to the victims of trafficking, to prosecute offenders and to create a legal, economic and social environment for the victims.
The Bill provides for the setting up of National Anti-Trafficking Bureau(NATB) to deal with crimes having inter-state ramifications. To read more about the Bill, click here.
Proxy Voting For Emigrants : Representation of Peoples Act Amendment
On August 9, the Lok Sabha passed the Representation of People(Amendment Bill), which seeks to amend the provisions of Representation of People Act 1950 and Representation of People Act 1951.
The Amendment Bill seeks to enable Non-Resident Indians to cast votes through their proxies in the constituency. For more about the Bill, read here.
National Council for Teacher Education (Amendment) Bill
The National Council for Teacher Education(Amendment) Bill was passed by the Lok Sabha on July 23. It seeks to give retrospective recognition to central and state teacher training institutions which were conducting courses without NCTE approval. This is done as a one time measure to save students from hardship. The Lok Sabha passed the Bill on July 23. The Bill text may be read here
GST Amendment Bills
The Lok Sabha passed four amendment Bills related to GST on August 9. They are Central Goods and Services Tax(Amendment) Bill 2018, The Integrated Goods and Services Tax(Amendment) Bill 2018, The Union Territory Goods and Services Tax (Amendment) Bill 2018, and The Goods and Services Tax (Compensation to States)(Amendment) Bill 2018.
The amendments seek to simplify the procedure for filing returns, and raise the turnover threshold for composition scheme to Rs 1.5 crores. Union Minister Piyush Goel said that the amendments will help MSME sector and small scale traders.
Arbitration Act Amendment
On August 10, Lok Sabha passed the Arbitration and Conciliation (Amendment) Bill, 2018, which seeks to set up an independent body called Arbitration Council of India(ACI) for promotion of arbitration. The Bill also enables High Courts and Supreme Court to designate arbitration institutions, which could be approached by parties for appointment of arbitrators. The Bill text may be read here.
The Motor Vehicles Amendment Bill, which was passed by Lok Sabha in April 2017, could not get green signal from the Rajya Sahba this session, as concerns were raised by opposition members. The triple talaq bill-Muslim Women (Protection of Rights on Mariage) Bill- was also not cleared by the Rajya Sabha.
The Session, which also witnessed discussion on a no-confidence motion, is the most productive and action-packed of all the sessions in the recent past.