Law Commission of India also Submits its Report i.e. Report No.258,259 and 260,

Law Commission of India also Submits its Third Report i.e. Report No. 260 This Report is on 2015 Draft Model Indian Bilateral Investment Treaty 

Analyses and Suggests Changes to the Draft Model Treaty 


The Law Commission of India has, on 27th August 2015, i.e. today also submitted its Report No. 260 on the “Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty” to the Union Minister of Law and Justice. The report is presented with a view to assist the Government of India in achieving a balanced negotiating text that takes into consideration the protection of Indian investors investing abroad, as well as safeguarding the regulatory powers of the State. 

India’s bilateral investment treaty (BIT) programme is part of a larger trade and investment agenda of the Indian government to boost investor confidence and increase investment flows into and out of the country. India signed its first BIT with the United Kingdom in 1994, and has signed 83 BITs till date, of which 74 are in force. India has also entered into eleven Free Trade Agreements which have a dedicated chapter on investment, that are substantially similar to the standalone BITs. 

India had a Model BIT (referred to as the ‘2003 Model’ in the report), which formed the basis for conducting subsequent BIT negotiations between India and other countries for many years. For about two decades, BITs in India did not attract much attention. India also had limited involvement with Investment Treaty Arbitration (ITA), which refers to the dispute resolution mechanism available under BITs. The period after 2010, however, saw a surge in India’s involvement with ITA. Towards the end of 2011, India received its first adverse award in relation to a BIT in the White Industries Australia Limited V. Republic of India case. India has also received numerous ITA notices from various investors and under various BITs. As on date, there are fourteen known pending proceedings of claims brought against India. 

During this period, the Government undertook a review of the text of its earlier 2003 Model BIT, and in March 2015, made public a new Draft Model Indian Bilateral Investment Treaty (the ‘2015 Model’). The objective of the 2015 Model, as stated on the Government’s website, was “to provide appropriate protection to foreign investors in India and Indian investors in the foreign country, in the light of the relevant international precedents and practices, while maintaining a balance between the investor’s rights and the Government obligations.” The Government added that the 2015 Model would form the basis for negotiations with other countries. 

The Law Commission undertook a study of the 2015 Model, and found that the text has some concerns that could be addressed before it is finalised. Accordingly, the Law Commission has made certain suggestions on specific clauses of the 2015 Model. The suggestions in the report are presented with a view to assist the Government to achieve a balanced negotiating text, and are not to be regarded as recommendations. 

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Law Commission of India Submit Report No.259 

The Report is on early Childhood Development and Legal Entitlements 

The Law Commission of India, on 27th August 2015, i.e. today submitted its another Report No.259 titled “Early Childhood Development and Legal Entitlements” to the Union Minister of Law and Justice. 

The development of young children is increasingly being recognized as a development and human rights issue of critical national importance. Early Childhood Development (ECD), spanning from birth to the age of six years is the period that sees the most rapid growth and development of the entire life span. It is during this period that the foundations of cognitive, physical and socio-emotional development, language and personality are laid. It is also the phase of maximum vulnerability as deprivation can seriously impact a child’s health and learning potential. 

As per the 2011 Census, India has 158.7 million children in the age group of 0-6 years, comprising about 16% of the total Indian population. In the period 2008-2013, 43% of India’s children under 5 were underweight and 48% had stunted growth. According to a World Bank Report published in 2013, the mortality rate of children under 5 years of age is 53 per 1000 live births and according to a 2013 UNICEF Report, more than 60 million children under 5 are stunted. Sadly, India has ranked at 112th position in 2012 in the Child Development Index. However, the State’s response to the problem has been slow so far. It was only as a response to rising voices demanding greater attention from the State on the issue of ‘Early Childhood Development (ECD)’ that the Government came out with the ‘Nation Early Childhood Care and Education (ECCE) Policy, 2013’. The Policy as articulated is no doubt quite comprehensive, but concerns remain about its true and faithful implementation. Even more significant than the concern of implementation is the fact that being a ‘policy’ it only incorporates a promise and does not create a justiciable right relating to ECD or a set of norms that are legally binding on the State. Similarly, Article 45 of the Constitution that reads “the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”, being a Directive Principle of State Policy does not create any binding commitment on part of the State. 

Recognizing the importance and relevance of ECD from the perspective of national and human resource development, the Commission has suo-moto undertaken the present study, ‘Early Childhood Development and Legal Entitlements’. The Commission feels that during a time when the world is debating the Post 2015 Sustainable Development Goals, which include the guarantee of early childhood development, the time is ripe to position the rights of young children within the development agenda and create appropriate legal entitlements with respect to ECD. 

In nut shell, the Commission is of the opinion that the constitutional framework of fundamental rights and directive principles should reflect the special status and needs of children in the under-6 age group. It believes that statutory backing should be given to the existing schemes and policies in order to create legal entitlements in favour of children. This should be coupled with an integrated and holistic approach to protecting the interests of the young child, keeping in mind the need for health, nutrition, care and education as the primary inputs for early childhood development. The following recommendations are intended to achieve these ends. 

i. It is suggested that, as per the recommendation of the NCRWC, a new Article 24A be inserted to Part III of the Constitution to ensure that the child’s right to basic care and assistance becomes an enforceable right. The Article should read as follows: “24A. Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation” 

ii. In order to extend the right to education to children in the under-6 age group as well, Article 21A of the Constitution should be amended to read as follows: “The State shall provide free and compulsory education to all children in such a manner as the State may by law determine.” 

iii. Similarly, it is recommended that the fundamental duty of the parent or guardian to provide education should not be applicable only to children between the ages of six and fourteen. Article 51 A(k) of the Constitution should be amended so that the duty is placed on every citizen “who is a parent or guardian to provide opportunities for education to his/her child or, as the case may be, ward under his/her care.” 

iv. Section 11 of the Right to Education Act should be made mandatory and should read as follows: “with a view to prepare children above the age of three years for elementary education and to provide early childhood care and education for all children until they complete the age of six years, the appropriate Government shall make necessary arrangement for providing free pre-school education for such children.” 

v. It is suggested that the Maternity Benefit Act be amended in accordance with the forward looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. Provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector. 

vi. It is suggested that government formulates policy or guidelines laying down minimum specifications of paid maternity leave to women employed in private sector. 

vii. In order to ensure proper emphasis on the promotion of early childhood development, especially keeping in view that the current approach towards ECD which is fragmented into different schemes and raises issues of lack universality in standards, monitoring and coordination (as pointed out in Chapter IV), it is suggested that a statutory authority or Council for Early Childhood Development (“the Council”) be created. The Council may be composed of officials from the Ministry of Women & Child Development, Ministry of Human Resource Development, Ministry of Finance, Ministry of Labour and Ministry of Commerce & Industry and representatives from civil society active in the field of early childhood development, and other such members as may be specified. The powers and responsibilities of the Council should be specified by law. Similar Councils to be established at State Level as well. The Philippines’ ECCD (Early Childhood Care and Development) Council may be looked at as an example and adapted to the Indian context. 

viii. The Council must be made responsible for laying down minimum universal standards for quality of services, facilities and infrastructure to be put in place across all schemes and provisions relating to early childhood. 

ix. With regard to Section 6 of NFSA, there is need for evolving guidelines or some methods for identification of children suffering from malnutrition and for referring such children to appropriate healthcare providers. It is suggested that some provision be brought so that the nutrition recommendations in Schedule II of the NFSA could be regularly revised in keeping with the latest scientific studies based on calorific value, age, sex and food items. The Council may be empowered to periodically commission such studies from the appropriate research institutes or organisations. 

x. Provision should be made for the training of teachers to provide pre-school education, and there should be a budgetary allocation to fund training programs for the same to ensure quality standards and a proper implementation of the best methods of promoting play and learning. Teachers imparting pre-school instruction should be considered at par with primary school teachers, and this should reflect in the terms and conditions of their employment. This institutional aspect is essential for ensuring that pre-school education be given sufficient importance. 

xi. It is suggested that every child under six should have an unconditional right to crèche and day care provided, regulated and operated by the State, as found for example in the Act on Children’s Day Care of 1973, Finland. The provision of crèches should be made the responsibility of the State, not of the employer, especially in the unorganised sector. 

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Law Commission of India Submits its Report No. 258 

This Report is on Laws Regarding Bribery of Foreign Officials 

Proposes Amendments to the Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015

The Law Commission of India has, on 27th August 2015, i.e. today submitted its Report No. 258 on “Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations—A Study and Proposed Amendments” to the Union Minister of Law and Justice. The report also proposes amendments to 2015 Bill on the issue. 

India is one of 176 countries that is a signatory to the United Nations Convention Against Corruption, 2003 (UNCAC), under which all signatories must enact a law that penalises bribery of foreign public officials as well as officials of public international organisations. However, there is no domestic law at present that addresses this type of bribery. The Prevention of Corruption Act, 1988, penalises the acceptance of bribes by domestic public officials, while the Prevention of Money Laundering Act, 2002, criminalises the illegal flow of money through the attachment and confiscation of property. 

There is a proposal to introduce the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2015 in Parliament. This Bill is a revised version of an earlier Bill introduced in Parliament in 2011, but which lapsed with the dissolution of the 15th Lok Sabha. The Law Commission of India was requested by the Ministry of Law and Justice to give its views and recommendations on the text of the 2015 Bill. 

The 2015 Bill has three key parts, dealing with, firstly, the offences; secondly, the processes for investigation and prosecution of the offences; and thirdly, the inter-relation of the Bill with other laws and miscellaneous matters. In line with other countries, the 2015 Bill criminalises the offence of active bribery, that is, the offence of giving bribes to foreign officials. However, unlike most other jurisdictions, the Indian draft law also criminalises the offence of passive bribery, which deals with the acceptance of bribes by foreign officials. Very few countries have criminalised the offence of passive bribery, including Malaysia and Switzerland. 

The Law Commission undertook an analytical cross-sectional study of bribery laws in other countries that are signatory to the UNCAC, as well as India’s obligations under the UNCAC. The Law Commission has suggested certain amendments to the 2015 Bill, in keeping with India’s obligations under the UNCAC as well as existing domestic laws on bribery and money laundering. A comprehensive redrafted version of the 2015 Bill, based on the recommendations of the Law Commission, is included as an annexure to the Report. 

Key recommendations include: 

1. Scope and Jurisdiction: The Bill must be applicable only to instances of bribery that occur wholly or partly within India or on an Indian aircraft or ship; or where the bribery takes place abroad, to persons who are citizens or permanent residents of India or bodies that are incorporated in India. 

2. Offences under the law: The offences of abetment of, and attempt to, commit passove and active bribery must be separate, as the ingredients for these offences differ, and ought to carry different penalties. 

3. Defences and exceptions available under the law: The Law Commission recommends that the law must provide a specific provision that details the defences and exceptions available against the offences under the law. This includes an exception for payments made in the course of routine duties or functions of foreign officials, such as for issuing permits or licenses, processing official documents, and similar services. Such defences and exceptions are routinely provided in all other jurisdictions, and it is appropriate that India follows this norm. These defences and exceptions must be available to all persons, including natural persons and companies. 

4. Liability of commercial organisations: Commercial organisations that are guilty of bribery must be liable to pay a fine. Further, if the offence takes place with the consent or connivance of a senior officer of the commercial organisation, that officer must be punishable with imprisonment. A commercial organisation would also be liable where a person associated with such commercial organisation has committed the offence. However, in such circumstances, the commercial organisation may not be liable if it is able to show that it had adequate procedures in place to prevent such conduct. This scheme of liability of commercial organisations is comparable to the scheme recommended by the Law Commission in its 254th Report relating to the Prevention of Corruption (Amendment) Bill, 2013.