The Vidhi Centre for Legal Policy, which launched a new state office in Maharashtra on Tuesday, 29 June, held a discussion over the 'need for legal reforms to build systems for a post-pandemic Maharashtra.'
Vijay Kelkar, former chairman of the Thirteenth Finance Commission, underlined the urgency of a revised legal policy.
According to a statement, the legal reforms spelt out in 'Fifteen Suggested Legal Reforms for Maharashtra' – Vidhi’s briefing booklet – emphasise on "a coherent public health emergency legislation which adequately empower the third tier at the forefront of managing COVID-19," as well as note "a need for judicial reforms that were unequivocally made stark during the pandemic as courts struggled to keep pace with a world that went online overnight."
So, what legal reforms does Maharashtra need?
1. Public Health Emergencies
COVID-19 has exposed the shortcomings of the legal framework in dealing with public health emergencies. The central and state governments acted ad-hoc under the Epidemic Diseases Act,1897 and the Disaster Management Act, 2005.
Due to this, people had to face issues regarding the rates of treatment provided by private healthcare systems, treatment of non-COVID patients and ambiguity in the rights given at every level of administration.
Therefore, it has been suggested that the state government should draft a public health law that takes evidence-based decisions and establishes a system of accountability, fixes protocols in case of PHEs and develops clear and effective grievance redressal mechanisms.
2. Mental Health
Amid the pandemic, the number of people suffering from mental distress has increased significantly. ASHA workers are also not fully trained for this work.
In such a situation, by increasing the pay category, additional ASHA workers should be hired and trained under the National Rural Health Mission (NRHM) scheme as lay counsellors.
The health department of the Maharashtra Institute of Mental Health (MIMH) in Pune and the National Institute of Mental Health and Neurosciences (NIMHANS), Bangalore can organise training programs on psychotherapy for these volunteers.
3. Water Pollution
Owing to industrialisation, Maharashtra's rivers are highly polluted and most of the villages and small towns are situated near these water bodies. Despite this, it has been found that the Maharashtra Pollution Control Board (MPCB) falls short in taking action against the industrial units spreading pollution.
Therefore, there is a need to impose harsh penalties on the polluters under the Maharashtra Water Resources Regulatory Authority Act, 2005 and to take steps to improve the water quality, in association with MPCB.
4. Street Vendors
Mumbai is home to around 2,50,000 street vendors. During the pandemic, many of them were deprived of their rights inscribed under the Protection of Livelihood and Regulation of Street Vending Act, 2014 as the Maharashtra government implemented only six recommendations of this provision.
The Street Vendors (Protection of Livelihood and Regulation of Street Vending) (Maharashtra) Rules, 2016 are very inconsistent with the act.
A thorough review of the Rules is required to identify the extent to which the provisions of the Rules are inconsistent with those of the Act. This review should be conducted in a participatory manner, including all representatives affected by any amendments, account for the challenges faced by street vendors during the various phases of the lockdowns, and account for specific measures to deal with similar public health emergency situations.
5. Education for Transgender Children
Under Rule 2(e) of the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 (RTE Rules), the State reserves the right to define categories of children afforded affirmative action. Of defined categories, “out-of-school children” (OOSC) children – who were never enrolled in schools, not completed elementary education, or having been absent from schools for more than a month – is most likely to capture 98 percent of transgender children.
In such a situation, it is against the law to not admit transgender children in school due to the absence of an identity card, age entry or address. In case of absent parents, it should be the responsibility of the government to accommodate them into the education system.
Keeping in mind the mandate of the Transgender Act, the Maharashtra Government should evaluate existing legislative provisions related to transgender persons and education from the perspective of the Transgender Act, with a view to protecting rights under this Act.
6. Digital Education for Children With Disabilities
Due to the pandemic, students have had to depend on virtual education. This has adversely impacted children who are deprived of or unable to use digital devices – creating a 'digital divide.'
That is why a dedicated state policy should be made to make sure children with disabilities can access digital education. It should be brought under legal purview under RTE and Right of Persons with Disability Act, 2016. Along with this, the state should direct the provision of affordable digital devices for children with disabilities.
7. Gender Court
According to NCRB data, atrocities on women have been increasing in Maharashtra over the last three years. Despite this, 94 percent of cases are still pending in district courts – the first point of contact between the judiciary and the public.
The district judiciary is not gender diverse and sensitive to issues of sexual misconduct, and other instances of violence on women.
Therefore, the creation of a blueprint of a model gender court is the practical next step. Like some courts in Delhi, there should be a separate confession room in the court for the victim, so that she does not have to face the criminal. Additionally, the victim should have the ability to give audio/video testimony.
8. Virtual Court Functioning
The high court, district courts and other tribunals in Maharashtra operated virtually during COVID. The use of virtual courts allowed for the filing of documents electronically and hearing arguments over video-conferencing facilities. But due to the discrepancies in e-filing and court procedures, there were a lot of bottlenecks. Connectivity was also a hindrance.
Therefore, employing methods of filing and hearing employed by the high court and looking at other nations, such as Singapore, for connectivity problems in virtual legal matters and implementing solutions, should be done to better the legal landscape in post-pandemic Maharashtra.
9. Young Offenders
There are several examples of young offenders, of petty crimes, turning to more serious crimes once they have been incarcerated in a prison meant for adult offenders. Borstal Schools seek to prevent this and focuses on the reformation of offenders.
Under Rule 2A of the Maharashtra Borstal School Rules, 1965, there is a ban on sending girls and non-Marathi speakers to these correctional schools, and often IGs don't utilise their powers to do so, which allows juveniles entry into these rehabilitation centres.
So, the State should review the Act, the Maharashtra Borstal Schools Rules, 1965 (the Rules) as well as the Manual to update them, and states should actively spread awareness among judges and IGs and analyse the rate of juveniles being sent to these centres.
10. Litigation Against Municipal Corporations
Despite being the richest corporation in the country, the Municipal Corporation of Greater Mumbai (MCGM) is facing around 70,000 cases in different courts and tribunals. Because of this, the manpower and the strained finances (owing to economic distress of the pandemic, etc) of MCGM are adversely affected.
It is therefore important to introduce a case management system that only caters to the requirements of the municipal corporations. The case management system should have classifications like case categories, jurisdiction allotments, complete case details, allocation of work and cost effectiveness.
11. Public Libraries
In order to increase literacy in Maharashtra, there should be an emphasis on state funding for public libraries, as well as an introduction of digital public libraries at the state level.
Also, for starting a library under the Maharashtra Public Libraries Act, it is necessary to have a State Library Council (SLC) consisting of fewer members that represent and specialise in allied fields.
12. Leases on Collector's Land
Leases that are on Collector’s land are legislated under The Maharashtra Land Revenue Code, 1966 (MLRC). Around 3,000 housing societies in Mumbai and 22,000 in the rest of Maharashtra stand on Collector's land, which is leasehold land, says Vidhi.
There have been several Government Resolutions issued by the state over time, all of which have been challenged, and parts of which have been set aside. As a result of this, there has been a loss of revenue. Due to the pending of renewal of leases, neither regularisation nor eviction steps can be taken when there is a violation of lease.
If a uniform lease renewal policy is adopted, it would provide the state continuous annual revenue, as well as premiums on unearned income which would add additional revenue.
13. Property Tax Administration
There is a need to strengthen the Property Tax Administration to facilitate increased revenue for the Urban Local Bodies (ULBs), which presently function with a restraint of resources.
Under a revised policy, taxpayers should be given benefits and there should be strict penalties for those who do not pay taxes.
14. Digital Innovation
No innovative technology should be left behind for being caught in legal processes in Maharashtra, which are at the center of the start-up landscape in the state.
Therefore, a legal system conducive to innovation and design should be in place. This can include operating a regulatory sandbox.
15. Gaming Platforms
In 2020, India surpassed the United States to become the world's largest fantasy sports market by user base. Despite this, many online gaming and fantasy sports are outside the purview of the law under the Maharashtra Prevention of Gambling Act, 1887.
In such a situation, there is a need to regulate the revenue received from them and bring such gaming platforms under the purview of the law. By doing this, Maharashtra can accrue the benefit of collecting a greater portion of the GST and generate additional revenue for the State.