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India Corporate Law

The 22nd law commission report on trade secrets: call for a balancing act.

The 22 nd Law Commission of India issued a report titled “Trade Secrets and Economic Espionage” (“LCR”), on March 5, 2024, to recommend a new legal framework to adjudicate claims related to disclosure of trade secrets, and the key provisions that it should encompass. Through this article, we intend to briefly summarise the legal framework applicable to trade secrets in India, highlight significant perspectives considered by the Law Commission and the recommendations thereof.

Extant legal framework for Trade Secrets in India

Trade secrets are valuable confidential business information. Each form of protectable IP relates to a particular type of subject matter. For instance, patents are only concerned with novel inventions and not discovery of scientific principles/ abstract theories, whereas copyright only protects expressions and not ideas. In comparison, trade secrets lack permanence and stability – the protection fades away the moment a trade secret becomes publicly available, or becomes known to any third party by virtue of honest and/or bonafide disclosure. As a corollary, there is no requirement for the trade secrets to be disclosed, and, if protected carefully, it can retain value perpetually.

In India, the extant system of trade secret protection relies on the principles of equity, common law actions of breach of confidence and inter partes contractual obligations. For contractual matters particularly involving employer-employee disputes, provisions of the Indian Contract Act, 1872 (hereinafter, the Contracts Act), and the Specific Relief Act, 1963, are key. Criminal liability in cases of theft of trade secrets, criminal breach of trust or cheating, may arise under the provisions of the Indian Penal Code, 1960 (and Bharatiya Nyaya Sanhita, 2023, after it comes into force on July 1, 2024). Where theft or removal of electronic records is involved, in relation to computer-related offences, the Information Technology Act, 2000, may also come into play.

Often, cause of action is based on Section 27 of the Contracts Act, which prohibits enforcement of restrictive clauses as it amounts to trade restraint. [i] Typically, when employees sign non-disclosure agreements, it includes non-compete clauses, which prevent them from joining a competitor (to avoid/ stop information from being divulged). Such negative covenants have been held to be permissible during the course of employment but not post termination. [ii] The underlying logic for not entertaining such restraints is that an employee cannot be restrained from utilising the business acumen acquired during the course of previous employment. [iii] This is applicable to licensing and any other business agreements as well.

Where no contracts exist, equitable and common law principles of breach of confidence govern such disputes. In Tarun Wadhwa v. Saregama India Ltd. [iv] , the Bombay High Court held that for such actions, a plaintiff should identify the information, demonstrate that it was handed in circumstances of confidence & it was to be treated as confidential, and that it was used or threatened to be used without consent. Such information shall not be vague [v] and be sufficiently developed. [vi] Where information contains elements that are in public domain, one must prove that the information was a result of application of skill or mind to produce something not already known. [vii]

The aforementioned causes of action are applicable to any trade secret related dispute. Considering its wide gamut and the rise in digital fraud and misappropriation, the Department-related Parliamentary Standing Committee on Commerce has recommended enacting a separate statute or framework for protection of trade secrets. [viii]

Perspectives on a statutory framework for protection of Trade Secrets

The Commission has consulted several experts and stakeholders to assess the inadequacy of the present framework. Accordingly, it has framed/ recommended contours for the potential law on trade secrets.

Hon’ble Ms. Justice Pratibha M. Singh of the High Court of Delhi commented on the critical role played by data and trade secrets, with the onset of artificial intelligence, technology and start-up ecosystem. Businesses invest heavily in research and data protection. Such sensitive information, if leaked, can cause serious economic impact on businesses. Given the grave consequences of such misappropriation, Justice Singh recommended the need for a law on trade secrets. [ix] Justice Singh noted that a law on this subject would serve three purposes:

• it would give clarity to companies and enable them to better protect their confidential information;
• increase industry confidence and enable technology transfer to India; and
• facilitate negotiation of free trade agreements, where the absence of a clear law on trade secret is often a point of concern.

However, from an academic perspective, Prof. (Dr.) N. S. Gopalakrishnan, former HRD chair on IPR at CUSAT, who has also assisted the Indian government in policy-making, noted that a separate legislation may favour the holder of information and not have a balanced approach that the courts presently adopt. To counter this fear, he suggested following the principle of unfair competition instead of property approach. Further, he recommended protecting common knowledge, employee mobility, reverse engineering and independent innovation. [x] On a similar note, Dr. Arul George Scaria highlighted that there is scant empirical data that demonstrates the inadequacy of the prevalent legal regime and hence, if adopting a legislation, all interests must be carefully balanced. [xi]

Within the industry, Associated Chambers of Commerce & Industry of India (ASSOCHAM) opined that a separate codified law on trade secrets is required. Absence of the same thwarts domestic and international business growth and makes it difficult to assert rights. Presence of a codified law will instil confidence in the industry and further ease of doing business. [xii] ASSOCHAM also observed that start-ups, especially, do not have the capital to engage in litigation and IP is their only trading element, hence codification of such law becomes all the more critical. [xiii] In reference to the discussion on establishing a trade secret board, a Confederation of Indian Industry (CII) delegation noted that registration mechanism may not be possible, given the high risk of trade secrets getting leaked. [xiv]

Upon consultations with the Government, it was noted that lack of adequate trade secret protection plays out in the international forum where India’s trading partners try to push for inclusion of provisions on trade secrets. [xv] Dr. G.R. Raghavendra suggested that a definitive law would help in boosting the confidence of international investors and facilitate information exchange, thereby batting for a sui generis legislation on trade secrets. [xvi]

Key Recommendations on Trade Secrets legislation [xvii]

The LCR has recommended a sui generis legislation that consolidates the existing principles and judicial precedents and accommodates the needs of the Indian industry, while taking into consideration the perspectives of all stakeholders. The contours of the proposed legislation are discussed within this section.

Firstly , the Commission has noted that trade secrets conceptually cannot be property-like, which is the case with other forms of IP since there are no definite monopoly rights attached to it. Particularly, unlike patents, there is no disclosure of information in the public domain in the case of trade secrets. Secondly , since trade secrets are expansive in nature, they should be defined as per the approach in Article 39 of the TRIPS Agreement [xviii] wherein secrecy, commercial value and reasonable steps are the qualifying criteria for protection of trade secrets. Thirdly , when defining misappropriation, an over-protective framework should be avoided, ensuring only bad faith acts attract liability. Fourthly, negative covenants on post-employment restraints shall not be permitted as it violates the spirit of Section 27 of the Contracts Act, that prohibits agreements in restraint of trade. Additionally, information that is already in the public domain cannot be protected by way of confidentiality or secrecy provisions in non-disclosure agreements.

The Commission has contemplated exceptions that should be carved out in such legislation. To start with, it recommended incorporating provisions to protect whistleblowers, as illegal activities under the garb of it being a trade secret cannot be exempted by law – any non-disclosure agreements to that end would be void under Section 23 of the Contracts Act. [xix] The Commission recommended incorporating exceptions for compulsory licensing and public interest, observing that the proposed act shall include provisions on compulsory licensing and/ or government use where public interest is involved. It has cited the COVID-19 pandemic, where efforts for voluntary licensing of trade secrets around vaccines were refused and, hence, the extant framework proved to be inadequate. 

On remedies, it has proposed that reliefs for misappropriation of trade secrets should include injunctive relief in the form of orders granting interim injunctions, ex-parte injunctions and permanent injunctions, as well as other ancillary reliefs ordinarily available under other IP statutes such as damages, rendition of accounts or profits, delivery up, etc., as also remedy in case of groundless threats of legal proceedings. However, as per the Commission, criminal action may only be taken under the applicable criminal law provisions under various existing statutes.

For procedural issues, among other things, the Commission observed that as trade secrets are commercial assets, the procedure under the Commercial Courts Act, 2015, shall be applicable to suits on misappropriation of trade secrets. In relation to the limitation period, Article 113 of the Limitation Act, 1963 [xx] , shall be applicable wherein limitation starts from three years from when right to sue accrues. The LCR is silent on whether, like with other forms of IP, a violation by virtue of misappropriation of trade secrets would give rise to a continuing cause of action. It has also proposed in-built confidentiality provisions for proceedings pertaining to misappropriation of trade secrets, such that disclosures to the Court can be given without any apprehension. The LCR has specifically recommended not including a trade secret board/ registry as such registry will be counter-intuitive since the task of protecting sensitive information is onerous and has practical difficulties, coupled with the apprehension that information holders may have in sharing protected information. 

Overall, the LCR contemplates the broad framework of the proposed legislation, including provisions on exceptions, limitations, remedies, etc., and a draft bill titled ‘ The Protection of Trade Secrets Bill, 2024 ’ has also been annexed to the LCR. [xxi] This Bill attempts to codify acquisition, use and disclosure of trade secrets and legal proceedings thereof. Whether the codification of the law on trade secrets is required to balance the interests of the industry, innovators and the public is still up for debate. However, given the exalted status of trade secrets and confidential information in Industry 4.0, the Commission’s attempt to draft a definitive legislation on trade secret holder’s rights, lawful acquisition/ use, compulsory licensing, relief, confidentiality, etc., may prove to be formative.

The complete text of the LCR may be accessed at https://lawcommissionofindia.nic.in/report_twentysecond/ .

[i] 27. Agreement in restraint of trade, void. — Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.  Exception 1.—Saving of agreement not to carry on business of which good-will is sold.—One who sells the good-will of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the good-will  from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business.

[ii] LCR, 102.

[iii] Ambiance India (Private) Limited v. Naveen Jain (2005) 81 DRJ 538.

[iv] (2021) 88 PTC 423.

[v] LCR, 108.

[vi] Anil Gupta v. Kunal Dasgupta ILR (2002) 1 Del 250.

[vii] Anindya Mukherjee v. Fowler (1985) 1 All ER 724.

[viii] 17.4, Report No. 161, Government of India, National Intellectual Property Rights Policy, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, May 2016.

[ix] LCR, 141.

[x] LCR, 148-149.

[xi] LCR, 151.

[xii] LCR, 156.

[xiii] LCR, 158.

[xiv] LCR, 163.

[xv] LCR, 169.

[xvi] LCR, 170.

[xvii] LCR, 176-196.

[xviii] 39(2): 2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

[xix] 23. What considerations and objects are lawful, and what not.—The consideration or object of an  agreement is lawful, unless— it is forbidden by law; or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

[xx] 113- Description of Suit: Any suit for which no period of limitation is provided elsewhere in this Schedule. Period of Limitation: Three years. Time from which period begins to run: When the right to sue accrues.

[xxi] LCR, 198-204.

Te Aka Matua o te Ture

Law commission, better law for aotearoa new zealand through independent review, know what you’re looking for search for a project or publication., law commission recommends changes to evidence law, kei te tūrama arotahi, in the spotlight, law commission publishes second issues paper in review of adult decision-making capacity law.

Te Aka Matua o te Ture | Law Commission has published the second Issues Paper in our review of the law relating to adult decision-making capacity.  It focuses on the Protection of Personal and Property Rights Act 1988. However, a number of the issues we discuss are of much wider significance.

We have also published four Key Topic documents. These are short, plain-language summaries of a few of the most important topics in the second Issues Paper and are available in many accessible formats and in te reo Māori.  

The Issues Paper and Key Topic documents are available on our project website: https://huarahi-whakatau.lawcom.govt.nz .

Submissions can be made online or by one of the alternative submission options noted on the project website. Submissions are due by 5pm Friday 21 June 2024.    

Related project

Ngā mahi o te wā, current work, he arotake i te ture mō ngā huarahi whakatau a ngā pakeke, review of adult decision-making capacity law.

Te Aka Matua o te Ture | Law Commission is reviewing how the law should respond when an adult’s decision-making is affected.

A review of the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics

Te Aka Matua o te Ture | Law Commission is examining the protections in the Human Rights Act 1993 for people who are transgender, people who are non-binary and people with innate variations of sex characteristics.

Hapori whānui me te tangata mōrea nui: He arotake o te mauhere ārai hē me ngā ōta nō muri whakawhiu

Public safety and serious offenders: a review of preventive detention and post-sentence orders.

We are reviewing the laws protecting the public from offenders who pose significant risks through preventive detention, extended supervision orders and public protection orders.

Tō mātou kawenga i te whakawhanake o te ture

Our role in the development of the law.

Our law reform reviews are referred to us by the Minister responsible for the Law Commission, who is currently the Minister of Justice.

Throughout a law reform review, we conduct extensive research into the area of law in Aotearoa New Zealand and internationally.

During a law reform review, we talk to a wide range of people to gain the fullest understanding of the issues and ideas for change. We do this through direct consultation and by inviting the public to tell us their views by making a submission.

Recommendations

Our research and engagement inform the recommendations we make to improve the law. At the end of a law reform review, we present our recommendations to the Minister in a final report. The Minister presents the report to Parliament.

Government response

The Government decides whether to implement our recommendations to reform the law and usually issues a formal response, which we publish on our website.

Implementation

The government department responsible for the area of law leads the work to implement the recommendations the Government has accepted. This may include new or amended legislation or changes in operational policy or procedure.

We also advise our responsible Minister on areas of law for possible future review and reform. To do this, we monitor developments in the law and invite suggestions on areas for reform from the public.

Improving the law since 1987

We have undertaken over 150 law reform projects on a broad range of topics, all aimed at improving the law of Aotearoa New Zealand.

Our work has impact

Most of our reports are implemented either in whole or substantial part. Our publications are cited in parliament, the courts, the news and legal writing, sometimes decades after they are published.

We are independent

Our independence allows us to approach each law reform project with an open mind and to conduct thorough, fair reviews.

Te ao Māori in our work

We take te ao Māori and Māori perspectives into account in our work.

Making the law easier to access and to understand

We play a key role in improving the structure of and access to the legislation of Aotearoa New Zealand.

Our leadership has mana

Respected judges, legal practitioners and academics bring their experience and expertise to law reform as our Commissioners.

Ā mātou kawerongo

Published: 19 April 2024

Law Commission starts second round of consultation on review of adult decision-making capacity law

Related project: Review of adult decision-making capacity law

Published: 22 March 2024

Related project: The third review of the Evidence Act 2006

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Law Commission of India - Indian Polity Notes

The Law Commission of India is an executive body whose chief function is legal reforms in the country. It is an important part of the UPSC polity and governance segments. In this article, you can read all about the Law Commission of India, its functions, history, and other details for the IAS exam .

Law Commission of India

The Law Commission is an executive body which is established by the government for a fixed tenure. It acts as an advisory body to the Law Ministry.

• The Law Commission is neither a statutory nor a constitutional body.
• It is primarily composed of legal experts.
• The first Law Commission in India was formed in 1955 with its chairman being the then Attorney-General of India, M. C. Setalvad.
• The Law Ministry has initiated the process of forming a new Law Commission.
• The Commission submits reports to the government on various matters of a legal nature. The reports are not binding on the government, which can either reject or accept them.

Law Commission of India makes an important Mains GS 2 Topic. To get all the topic-wise GS 2 questions of UPSC Mains , check the linked article.

Law Commission Members

The Commission comprises of legal and judicial experts. There is a Chairperson and other members in the Commission. The Law Secretary and the Secretary (Legislative) under the Law Ministry are ex-officio members.

Law Commission History

Law Commissions in India have a pre-independence origin. The first Law Commission was formed in 1834 as a result of the Charter Act, 1833 under the chairmanship of TB Macaulay.

• The first commission’s recommendations resulted in the codification of the penal code and the Criminal Procedure Code.
• Three other law commissions were constituted before independence by the British government. All four pre-independent law commissions have contributed to the statute books immensely.
• After independence, the first Law Commission was constituted in 1955 in a continuance of the tradition of bringing law reforms in the country through the medium of law commissions.
• It submitted 14 reports to the government.

Law Commission Functions

The main function of the Law Commission is to conduct legal research and review existing laws to bring in reforms. Some of the other functions of the Law Commission are mentioned below.

• Identifying laws that are no longer relevant and can be repealed immediately.
• Identifying laws that are not in tune with the current climate of economic liberalization and require changes.
• Identifying laws that require changes and to make recommendations as to the changes.
• Considering suggestions given to it by other ministries/departments regarding revision or amendment of laws.
• Suggesting measures for the speedy redressal of grievances of citizens, in the legal domain.
• Studying laws that affect the poor and also conducts post-analysis of socio-economic laws.
• Recommend the enactment of new laws that may be needed to implement the DPSPs and to achieve the objectives of the Constitution as formulated in the Preamble.
• For eliminating delays, reducing costs, and ensuring a quick clearance of arrears, without affecting the principle of justice and fairness.
• For simplifying procedures and eliminating technicalities.
• For improving the standards of administration of justice.
• Consider requests for providing research to foreign countries as referred to it by the government through the Law Ministry.
• Studying the existing laws concerning gender equality and giving recommendations thereof.
• Studying the effects of globalization on unemployment, food security, and suggest measures for protecting the interests of the marginalized and the vulnerable.
• Prepare and submit reports on all issues and subjects regarding the research undertaken by the Commission for effective steps to be taken by either the central or the state governments.
• Perform any other function which may be assigned to it by the Union Government.

21st Law Commission of India

The 21st Law Commission of India was the latest one to be formed. Its tenure was from 2015 to 2018. The Chairman was former Supreme Court judge Balbir Singh Chauhan. It submitted 15 reports to the government. The last report was Report no. 277 titled, “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.”

Some of the other reports the commission submitted were on various subjects such as human DNA profiling, hate speech, review of contempt of courts, compulsory registration of marriages, BCCI, sports betting, etc.

Also, read |  Law Commission Report on Electoral Reforms

Law Commission of India – Indian Polity:- Download PDF Here

UPSC Questions related to the Law Commission of India

Is law commission a statutory body.

The Law Commission is not a statutory body. It is an executive body.

Who wrote the Indian Penal Code?

The IPC was drafted in 1860 based on the recommendations of the First Law Commission. The draft was prepared by the Commission under the chairmanship of Lord Macaulay.

Who is the chairman of the 21st Law Commission?

The chairman of the 21st Law Commission was Justice Balbir Singh Chauhan.

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• May 8, 2024

Little Hoover Commission Releases Flawed CEQA Report

The long-awaited report proposes sweeping exemptions and process changes—even though its own reasoning points in the opposite direction..

More than a year ago, California’s Little Hoover Commission convened the first in a series of public hearings designed to interrogate the California Environmental Quality Act (CEQA) as well as Californians’ often tense relationship with that landmark legislation. In recent years, some pro-housing advocates have pointed to CEQA as the bogeyman driving the state’s affordable housing crisis; defenders of the law say CEQA stymies relatively few developments that would close the housing gap but does serve as a crucial public participation tool for long-burdened environmental justice communities. (You can read a good overview of the Commission and the CEQA reform debate here .) Following the conclusion of the Commission’s hearings, it aimed to release a study reporting on the current state of CEQA and providing recommendations on possible amendments to the statute.

Today, it finally did . But the report, which bills itself as presenting “targeted reforms,” does anything but. And it is the product of a process that started fair but turned flawed, which is concerning given that it may be leaned on as a guidepost for state law- and policymakers.

The Commission’s long—and ultimately flawed—process

The report has been a long time coming. What was originally supposed to be a series of three hearings over two months expanded into five hearings over four months. Experts from all sides of the CEQA spectrum prepared testimony and flew to Sacramento to debate CEQA’s relationship with environmental justice, California’s housing crisis, and the state’s desperate need for infrastructure. There were hours of public comment at each hearing, often running well over the meetings’ allotted time.

But once the hearings were over, the Commission went silent for months. And when the draft report was finally prepared, the Little Hoover Commission quietly finalized it during a routine business meeting on March 28—even though the public had not been given any opportunity to review the report and all public comment for the meeting was taken before the adoption item was heard.

The remarks from the commissioners prior to their adoption of the report were sometimes defensive in tenor and did not acknowledge the fact that most members of the public had no way of accessing the report. Calls for a 60-day public review period went unanswered by the commissioners, as did more general calls to make the draft report publicly available. It was an unceremonious end to a process that had begun with a great deal of thoughtfulness.

The report’s Jekyll-and-Hyde approach to CEQA reform

  For both CEQA reformers and CEQA defenders, the Commission’s process was a staging ground for a broader battle waged in California courts, the Legislature, and in public discourse. While the Commission has no regulatory or legislative authority, its recommendations carry weight with lawmakers, who have already proposed over 200 bills to amend CEQA in the last couple of years and passed 72. There are numerous policy reports and studies looking at CEQA’s impact on California, but they are rarely written by impartial observers. A clear-eyed report from a respected and impartial body, informed and revised through public process and stakeholder engagement, is sorely needed.

  The start of the process seemed even-handed and intensive. But despite this care and diligence (and nearly a year of waiting), the ultimate product is a disjointed document that begins with measured analysis and concludes in a series of extreme recommendations that depart from the report’s own supporting text and evidence.

The report also implicitly recognizes that, while the Legislature has created numerous CEQA exemptions (for everything from certain types of infill or affordable housing to clean energy projects), there isn’t much empirical evidence supporting the claim that further chipping away at CEQA will address California’s housing shortage. It cites to studies finding that fewer than ten percent of housing projects required an environmental impact report and that only two percent of projects requiring environmental review resulted in litigation. Finally, the report takes care to recognize the interconnected policy interests that have used the CEQA debate as a proxy, many of which implicate issues related to exclusionary zoning, gentrification and displacement, and access to transit. Given this evidence and a wave of recent legislation modifying the law, the body of the report proclaims: “We believe the state should wait to measure the success of recent reforms before embarking on major additional changes.”

But the recommendation section that follows veers sharply from this reasoned tone, proposing a raft of significant reforms, including some that go well beyond what the Legislature has considered to date. These recommendations are wholly divorced from—and in some cases directly contradict—the body text of the report. Here are a few examples:

• An overly broad infill housing exemption. The report proposes doing something no state legislator has tackled to date: creating a broad, across-the-board exemption for infill housing. It’s hard to overstate how radical this recommendation is, particularly in light of the fact that the report itself calls on the state to proceed with caution in the face of recent CEQA streamlining reforms. Rather than following its own advice to let the dust on those changes settle and assess their success in delivering much-needed additional housing, the Commission proposes that the Legislature go one giant step further, exempting all infill housing “without additional qualifications or conditions.” The problem? While the Commission asserts that the commonly-used definition of infill housing—“that which is developed on sites that are at least three quarters surrounded by existing urban uses”—should prevent sprawl development from taking advantage of the exemption, urban uses are defined broadly enough in state statute that in practice, plenty of sprawl development would qualify for streamlining. And such an unqualified exemption would do nothing to ensure that new housing is the affordable kind we need, or that it will be sited in ways that do not expose environmental justice communities to even greater harms.
• Limitations on so-called “data dumps.” The notion of “data dumps” is one that does not feature too often in CEQA debates, likely because it’s not a genuine problem. The terms “data dumps” and “late hits” conjure images of a duplicitous would-be petitioner showing up at the eleventh hour with thousands of pages of documents, probably aiming to obstruct an affordable housing or solar project in bad faith. But the report offers no evidence that this problem actually exists. In fact, the body text of the report does not mention this issue a single time, let alone explain why it is significant enough to merit a legislative effort.
• Modifications to standing requirements. The Commission recommends that CEQA be amended to explicitly state that “the intent of CEQA is environmental protection and that the law should not be used for suits that do not align with this intent.” But, once again, this recommendation seems to be a solution in search of a problem. Far from presenting evidence that the volume of CEQA litigation is unmanageable, the body text of the report acknowledges that “[m]ost CEQA projects do not result in litigation.” Nor does the report—either in the body text or in recommendations—explain why existing limitations on standing, and the fact that CEQA suits cannot succeed without claiming legitimate violations of the statute, are not enough to weed out bad challenges. In practice, the amendment proposed by the Commission’s report would simply open the door to discovery that attempts to prove petitioners’ “purposes” in filing suit are not legitimate. The result will either be a chilling of meritorious CEQA claims, something state policymakers should not want to endorse, or an extension of the CEQA litigation timeframe to allow for discovery on standing issues, which will only add to the burden on courts and litigants.

These are just a few of the most egregious examples of the recommendations’ misalignment with the body text of the report—and, for that matter, with much testimony and evidence the Commission considered during its hearing process, the majority of which did not make it into the report. CEQA remains a highly controversial battleground, and the devolution of this well-considered process into extreme and unsubstantiated recommendations is truly disappointing. One thing is clear: State policymakers should take the Commission’s recommendations with a serious grain of salt.

The author thanks former Emmett Frankel Fellow Gabriel Greif, who contributed significantly to the research and analysis herein during his fellowship.

CEQA , CEQA reform , housing , Little Hoover Commission

Reader Comments

One reply to “little hoover commission releases flawed ceqa report”.

This commentary misses a very important point about the CEQA litigation–an opponent need not file a lawsuit to hinder or block project. They only need to THREATEN a lawsuit to get action. This has been a very common tactic by labor unions across a broad swath of projects. (And others use this as well.) Just the cost of litigation, which includes the cost of financing a substantial delay, is significant enough to cause proponents to significantly modify or increase expenditures for a project. Clearly defining standing might address this problem.

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• विधि और न्याय मंत्रालय, भारत सरकार
• Ministry of Law and Justice, Government of India

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Trawl for unsafe criminal convictions being done by interns

Exclusive: DNA expert whose work led to Andrew Malkinson case breakthrough says job should be given to forensic scientists

Interns have been given the job of weeding out potential wrongful convictions for rape and murder in a major case review prompted by Andrew Malkinson’s exoneration, the Guardian can reveal.

The miscarriage of justice body the Criminal Cases Review Commission (CCRC) said last month that it would be re-examining cases it had refused to refer to the court of appeal to check for new DNA testing opportunities.

An internal CCRC board paper seen by the Guardian shows that its newly announced forensic trawling exercise has so far been carried out by interns, who have begun the process of whittling down historic cases that could be sent for further DNA testing.

The exercise has been trumpeted as having the potential to uncover further wrongful convictions that have been missed by the body. Emily Bolton, Malkinson’s solicitor at the law charity Appeal, said: “Given the seriousness of this review, it is concerning that so far the work has been done mainly by interns.”

The paper also suggests that there are about 8,000 other serious potential miscarriages of justice not being considered because the CCRC, which covers England, Wales and Northern Ireland, has limited the scope of the exercise to rape and murder convictions.

Marked “official sensitive” and partly redacted, the board paper was written by the casework operations director on 8 March and sent to Malkinson’s legal team following a freedom of information request.

Malkinson spent 17 years in prison for a 2003 rape with no DNA linking him to the crime. He was exonerated last year after fresh forensic testing of a sample of the victim’s clothing linked to male DNA on the police database.

The CCRC knew five years after Malkinson was convicted that a forensic review had found a searchable male DNA profile on the victim’s vest top but declined to order further DNA testing and refused his case in 2012. A breakthrough came only after his legal team arranged further forensic work themselves.

The CCRC’s announcement of a trawl of cases came before the publication of a major review of its handling of Malkinson’s case. The review, led by Chris Henley KC, was handed to the CCRC earlier this year. It is expected to be critical of the body and to recommend a similar exercise to the one announced.

The document also reveals that there are no plans to consult forensic scientists until the final phase of the exercise, after its own case workers have made a decision on whether forensic work might make a difference to the case.

A DNA expert whose early research ultimately prompted a breakthrough in Malkinson’s case questioned why there appeared to be no plans for forensic scientists to be consulted in the early stages.

The development raises serious concerns about the possibility of cases being missed in the initial trawl. The brief says “a small sample” was reviewed by “members of the casework operations team” to develop guidance before the exercise was handed to interns.

The CCRC said its interns were salaried members of the team who had completed the Bar course before joining and typically stayed for more than a year before then moving on to pupillages. It said it would recruit investigators for the later stages of the review process.

Prof Christophe Champod, the forensic scientist whose pro bono work with a team at the University of Lausanne established that further DNA testing on key exhibits had the potential to exonerate Malkinson, said: “In the aftermath of Andy[Malkinson]’s case I can see that it may worry people to think that the CCRC itself will decide whether it is worth it to do extensive forensic work or not. What really matters is what is the expertise that is brought in reviewing these cases.

“I think this is something for a forensic scientist to do, even if it is a triage. I really think you need DNA expertise, not only awareness.”

The CCRC’s trawl will look at all cases where someone was convicted of rape or murder before 2016 and had their case refused by the body. The year 2016 was chosen because after that the use of more sensitive DNA-17 testing was widespread.

In the first phase, interns are checking more than 5,000 rape and murder convictions refused for referral back to the appeal court and leaving out those they deem irrelevant. They are looking for cases where the identity of the attacker is in question and will exclude those where, for example, arguments about consent or self-defence were the reason for application.

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So far, the interns have whittled down 912 potentially eligible cases to 270 and are now analysing the rest.

The second phase will be conducted in-house by investigators to identify cases where further DNA testing might be an option “based on the material available in our system”. Only these cases will move to phase three where work with forensic scientists could result in more DNA testing.

Malkinson’s solicitor, Bolton, said: “For this exercise to effectively root out miscarriages of justice the CCRC must get input from independent forensic scientists throughout the process. It cannot be left to non-scientists alone to identify possible forensic opportunities in these cases.

“The scope of the review also needs to be significantly expanded. This internal document recognises that there are thousands of serious cases which will not be explored even though DNA breakthroughs might be possible. That cannot be right.

“The other limitation is that this review is focused purely on identifying DNA opportunities the CCRC might previously have missed on cases. However, we know from Andrew Malkinson’s case that the CCRC missed other lines of inquiry as well, including failing to review the police files.”

The brief acknowledges that there are thousands of serious previously rejected cases where the identity of the offender may be an issue but that will not be considered for new DNA testing because the current review is only focused on rape and murder cases.

The paper notes that extending the scope of the review to include other sexual offences, violence against the person, burglary and robbery would add about 8,000 more cases and says “concerns about the scope” of any trawl are reasonable.

It adds: “If we are committed to finding miscarriages of justice, we must consider a trawl of our closed cases. The scale of such an exercise is, however, daunting.”

When asked about this, the CCRC said that “the most serious of cases, those involving murder and rape, are being looked at currently” but that it had not ruled out assessing other cases.

A spokesperson for the CCRC said: “Phase two is a preliminary assessment, and is about identifying cases where forensic evidence might make a difference. Detailed consideration would take place at phase three and would involve consultation with forensic scientists. At each stage, borderline cases will be included rather than excluded.”

• Criminal Cases Review Commission
• Rape and sexual assault
• UK criminal justice

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The Painful Reality of Being an Incarcerated Mother

Many of us will celebrate Mother’s Day over the weekend by remembering or being present with women who raised us, or with our families. But for the more than 190,000 women incarcerated in the United States this weekend , there will be no celebration.

Close to 60 percent of these women serving prison sentences were the primary caregiver of their minor children before sentencing. All too often, a prison sentence tears them from their family connections and contact with their children, while severing their children from a vital source of emotional and financial support. State women’s prisons are often located in rural areas, with limited modes of transportation, and families struggle to visit.

As a result, families have very few in-person visits, and must rely on postal mail, or pay inflated prices for telephone calls and video contacts. Compounding the lack of connection, women in many state prisons cannot even hold in their hands and cherish a card or drawing sent by their children. Many prisons have done away with real mail , and now use vendors to intercept, scan, and destroy all postal mail, delivering poor quality printouts of the original letter to the incarcerated recipients weeks later for a fee.

In addition to women sentenced to prison, more than 2.4 million women spend at least one day in jail each year, and 80 percent of them are mothers of children under the age of 18. And more than 60 percent of women in our nation’s jails are presumed innocent and awaiting trial, jailed due to poverty and an inability to purchase their freedom by posting bail.

Children with mothers incarcerated in local jails often fare no better than those whose mothers are in state prisons: Some jails have completely banned in-person visitation to require all visits be done by paid video, not because of COVID, but to boost their bottom line. A 2015 study found that 74 percent of jails had banned in-person visits after putting video visits into place. Even when women are able to have in-person visits with their children, jail visits are often done through a plexiglass barrier. Women cannot hold, hug, touch, or kiss their children.

Although many more men are incarcerated than women in the U.S., women’s rate of incarceration has grown twice that of men in the past 40 years . Since 2009, while the overall number of people in prisons and jails has decreased, women have fared worse than men in 35 states . Women and families of color are disproportionately affected by this increase. Black and Native American / Alaska Native women are incarcerated at double their share of the population of women in the United States.

Women in Prison

The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the...

Source: American Civil Liberties Union

Women often become entangled with the criminal legal system due to trying to cope with poverty, limited access to child care, underemployment or unemployment, unstable housing, and physical and mental health challenges. They get thrown into a legal system that criminalizes survival behaviors such as selling drugs or sex work, and policies that charge and arrest persons for being present when crimes are committed by others, “aiding and abetting” others, or fighting back against domestic violence. A study in California found that 93 percent of women incarcerated in state prison for a homicide of a partner were abused by the person they killed, and in two-thirds of those cases, the homicide occurred while attempting to protect themselves or their children.

Incarcerated women have high rates of histories of physical and sexual abuse, trauma, and mental health and substance use disorders. While incarcerated, women are more likely than incarcerated men to face sexual abuse or harassment by correctional staff, and they experience serious psychological distress due to incarceration and the conditions in prisons. Treatment in prisons or jails for mental health conditions, substance use disorders, and trauma is often nonexistent. Health care for physical medical conditions or pregnancy often is limited at best: Last year, through our lawsuit , we learned the Arizona Department of Corrections was inducing the labor of pregnant incarcerated people against their will. This came after we documented inadequate prenatal and postpartum care of women in Arizona prisons in 2019, including a woman with serious mental illness who gave birth alone, in the toilet of her cell, at a maximum custody unit.

So what can we do to honor incarcerated women and families? First, we can financially support the incredible work of community-based bail funds that help free mothers and bring them home to their children and families. Second, we can support criminal legal reform policies to stop mass incarceration.

The National Bail Out is a Black-led and Black-centered collective of organizers and advocates who are working to abolish pretrial detention and mass incarceration. They have coordinated with a variety of other groups, including Southerners on New Ground (SONG) , to create the tactical mass bail out of #FreeBlackMamas to acknowledge the reality that incarceration of women disproportionately affects Black women. They work with partner organizations to post bail for incarcerated women year-round, but especially before Mother’s Day. This year, instead of (or in addition to) sending flowers to your favorite mothers, you can donate to National Bail Out or the 18 Black-led organizations they are working with across the country to help #FreeBlackMamas.

We also need to address the root causes of the incarceration of women in this country, which is often due to poverty. While drug or property offenses account for about half of the charges for which women are incarcerated, policies must also focus on reducing so-called “violent” offenses that women commit often in response to violence and abuse.

When we incarcerate women, we are causing irreparable damage to them, their families, and all of our communities.

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• Prisoners' Rights

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Draft Report on Simultaneous Elections

• The Law Commission of India (Chair: Justice B.S. Chauhan) released its draft report on Simultaneous Elections on August 30, 2018.  The report examined legal and constitutional questions related to the conduct of simultaneous elections.  Key draft recommendations include:  
• Conduct of simultaneous elections: The Commission noted that simultaneous elections cannot be held within the existing framework of the Constitution.  Simultaneous elections may be conducted to Lok Sabha and state Legislative Assemblies through appropriate amendments to the Constitution, the Representation of the People Act 1951, and the Rules of Procedure of Lok Sabha and state Assemblies.  The Commission also suggested that at least 50% of the states should ratify the constitutional amendments.  
• The Commission noted that holding simultaneous elections will: (i) save public money, (ii) reduce burden on the administrative setup and security forces, (iii) ensure timely implementation of government policies, and (iv) ensure that the administrative machinery is engaged in development activities rather than electioneering.  
• Framework for synchronisation of elections: The Commission recommended three alternatives to synchronise elections in India.  
• Option 1: The Commission recommended advancing or postponing election timings in certain states, such that elections to all state assemblies and Lok Sabha may be held together in 2019.  It noted that election of five states (Andhra Pradesh, Arunachal Pradesh, Odisha, Sikkim, and Telangana) are due in 2019 along with Lok Sabha elections.  It recommended the following changes to the election timings of other state assemblies:  
• Assembly elections due before Lok Sabha elections: For four states (Chhattisgarh, Madhya Pradesh, Mizoram, and Rajasthan) elections are due in end of 2018 and early January, 2019.  The term of these assemblies may be extended to synchronise it with Lok Sabha elections, by amending the Constitution.    
• Assembly elections due immediately after Lok Sabha elections: If there is political consensus, elections to four assemblies (Haryana, Jharkhand, Maharashtra, and Delhi) can be held with Lok Sabha elections, if the states voluntarily dissolve their assemblies earlier, or by operation of law.   
• Assembly elections in remaining states: For the remaining 16 states and Puducherry, elections may be conducted towards the end of 2021.  The term of these assemblies will be 30 months or till June 2024, whichever is earlier.  This will require a constitutional amendment since the terms of different assemblies will either need to be curtailed or extended.   
• Thereafter, elections to Lok Sabha and state assemblies may be held together from 2024.  
• Option 2: If assembly elections are held in 2019 and 2021, as described above, then elections will only need to be conducted twice in five years.   
• Option 3: If simultaneous elections cannot be conducted, then the Commission recommended that all elections falling due in a calendar year should be conducted together.  The timing of such election should be conducive to all state legislatures involved and the Lok Sabha (if dissolved earlier).  This option will also require amendments to the Constitution and the Representation of the People Act, 1951.   
• No-confidence motion: The Commission noted that a no-confidence motion, if passed, may curtail the term of Lok Sabha/ state assembly.  It recommended replacing the ‘no-confidence motion’ with a ‘constructive vote of no-confidence’, through appropriate amendments.  In a constructive vote of no confidence, the government may only be removed if there is confidence in an alternate government.  It further suggested the option of limiting the number of such motions during the term of the House/ Assembly.   
• Hung House/ Assembly: If no party secures a majority to form the government, it may result in a hung House/ Assembly.  In order to prevent this, the Commission recommended that the President/ Governor should give an opportunity to the largest party along with their pre or post-poll alliance to form the government.  If the government can still not be formed, an all-party meeting may be called to resolve the stalemate.  If this fails, mid-term elections may be held.  The Commission recommended that appropriate amendments be made to provide that any new Lok Sabha/Assembly formed after mid-term elections, will be constituted only for the remainder of the previous term, and not the entire five years.  
• Amendment to anti-defection laws: The Commission recommended that appropriate amendments be made to anti-defection laws to ensure that all disqualification issues (arising from defection) are decided by the presiding officer within six months. 

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.