What happens when arbitration deadlines are missed

by Prashant Narang and Renuka Sane.

Section 29A of the Arbitration and Conciliation Act 1996 was introduced to deal with delays in arbitration. It sets a time limit for making an award. If that time runs out, parties have to go to court to extend it. The court can also impose consequences for delay, such as reducing fees, awarding costs, or replacing the arbitrator.

Our new working paper studies how this works in practice. It looks at 202 reported orders of the Delhi High Court between 2015 and 2024.

It finds that the Court almost always grants extensions and almost never imposes sanctions.

What the data shows

Out of 202 cases, the court granted extensions in 198 (98%). Only 4 cases were dismissed, and those were on technical grounds. Sanctions were rarely imposed.

• Fee reduction: 0 out of 202 cases
• Adverse costs: 6 out of 202 cases (about 3%)
• Replacement of arbitrators: 4 out of 202 cases (about 2%)

Repeat extensions are not unusual. There are 30 cases where parties came back for a second or later extension. The court granted 29 of them (96.7%). There are no sanctions in these repeat cases.

These petitions also move quickly.

• Median time to decide: 3 days
• Median number of hearings: 1
• About 63% of cases are decided in a single hearing

So the delay is not in the court process. Courts dispose of these matters quickly. But they usually extend time without imposing any consequence.

Why extensions are common

Part of the answer lies in how Section 29A is structured.

For the Court, giving an extension is easy if both parties agree. The court can dispose of the case quickly.

Imposing a penalty is harder as the Court has to find out who caused the delay. It may have to look at the record in detail. It also has to hear the arbitrator before cutting fees. All this is likely to take more time and effort.

It is not surprising that consensual extensions are more common.

What this means for the law

Over time, this pattern shapes how the law works.

Section 29A was meant to push arbitrations to finish on time. It often works as a way to formally extend time after the deadline has passed.

If parties expect that extensions will be granted without much difficulty, the deadline may lose its force.

This does not mean the provision has no value. But it suggests that deadlines work best when consequences are easy to apply.

Looking ahead

If deadlines are not backed by predictable consequences, do they change behaviour?

The paper does not answer this fully. It focuses on what courts do once parties come for an extension. But the pattern is clear. Extensions are routine and sanctions are exceptional.

That may matter for how arbitration timelines are taken in practice.

You can read the working paper here.

The authors are researchers at TrustBridge Rule of Law Foundation.

LRS TCS and Overseas Travel: A Policy Design Critique

by Anirudh Burman.

Transaction taxes introduce frictions in transactions. Sometimes these frictions are in the larger public interest, for example, the interests of protecting government revenue ex ante because of the difficulty of ex post tax collection. In other cases, transaction taxes operate primarily to constrain transactions and their costs outweigh their benefits. A useful test is whether the tax (a) solves a genuine enforcement or information problem relative to ex post assessment, (b) is broadly designed and relatively neutral across comparable transactions, and (c) has stable, predictable parameters so that individuals can plan and comply without disproportionate costs. In addition, withholding taxes can be levied when there is a clear problem with ex post collection. However, the design of such taxes must still be proportionate to the objective and should not create large, avoidable liquidity and compliance frictions.

This post argues that the Union Government's Tax Collection at Source (TCS) on outward remittances under the Liberalised Remittance Scheme (LRS) and on purchase of an overseas tour programme packages fails these tests. It introduces a large, transaction-specific friction on outward remittances under LRS and on the domestic purchase of overseas tour programme packages. It does so without a clear statement of objective or a stable instrument design.

Introduction: TCS on LRS and overseas travel

TCS on LRS and on overseas tour packages was first introduced in the 2020 Union budget and the Finance Act, 2020. The Finance Act, 2020 inserted section 206C(1G) into the Income Tax Act, 1961 ( See Finance Act 2020 amendment here). The legal architecture in section 206C(1G) has two components. One is tied to an authorised dealer who "receives an amount for remittance from a buyer...", who intends to remit money out of India under the LRS. The other is a receipt-trigger tied to a seller of an overseas tour programme package. The second trigger is not a "remittance", which is conceptually confusing, since the move is primarily aimed at taxing cross-border movement of capital: LRS, a scheme under the Foreign Exchange and Management Act, 2000, allows overseas remittances up to USD 250,000 per annum, and the first component introduces a TCS on this, whereas the second component imposes TCS on overseas tour packages, independent of LRS. The second component introduces frictions for domestic purchases routed through Indian sellers.

Since the 2020 Finance Act, the Union government has tweaked this provision multiple times, adjusting tax rates, thresholds and exemptions. This years Union budget proposes to rationalise these further, but leaves the basic architecture intact.

Brief chronology of events

The table below shows that the instrument has been repeatedly redesigned along: (i) rates/thresholds and (ii) scope/coverage/definitions. This makes compliance and planning difficult for affected transactions.

Title of document (1)	Type of instrument (2)	Date (3)	What Changed (4)	Provision in the regulatory instrument (5)	Change type (6)
Finance Act, 2020	Law	March 2020	(a) introduced TCS on LRS remittances above INR 7 lakh per financial year (general rate 5%) (b) set concessional TCS rate of 0.5% for education remittance financed by an education loan (c) introduced TCS at 5% on sale of an overseas tour programme package (no threshold in the section text) (d) created exemptions where buyer is Government/embassy etc., or where buyer deducts TDS on the amount (as specified in the provisos)	Income-tax Act, 1961: s.206C(1G)	Rate/ threshold; Scope/ definitions; Exemptions
Notification No. 20/2022 (S.O. 1432(E))	Notification	March 2022	(a) created exemption from TCS for an individual who is non-resident and visiting India	Income-tax Act, 1961: s.206C(1G) (Notification No. 20/2022)	Exemptions
Notification No. 99/2022 (S.O. 3878(E))	Notification	August 2022	(a) superseded previous notification and replaced the exemption category: TCS not applicable to a non-resident buyer who does not have a permanent establishment in India	Income-tax Act, 1961: s.206C(1G) (Notification No. 99/2022)	Exemptions
Finance Act, 2023	Law	February 2023	(a) continued TCS at 5% on LRS remittances for education and medical treatment in excess of INR 7 lakh (b) continued concessional TCS at 0.5% on education remittances financed by an education loan in excess of INR 7 lakh (c) proposed increasing TCS rates from 5% to 20% for other LRS purposes and purchase of overseas tour programme packages	Income-tax Act, 1961: s.206C(1G)	Rate/ threshold
Foreign Exchange Management (Current Account Transactions) (Amendment) Rules, 2023 (G.S.R. 369(E))	Regulation	May 2023	(a) removed exemption in FEMA Current Account Transactions Rules, bringing international credit card usage while outside India within Rule 5 (and therefore within LRS accounting), which can expand the practical ambit for TCS.	FEMA CAT Rules, 2000: Rules 5, 7	Scope/ definitions
Press Release (Ministry of Finance): Clarification regarding applicability of TCS to small Debit/Credit Transactions under LRS	Press Release	May 2023	(a) clarified that international debit/credit card payments by an individual up to INR 7 lakh per financial year are excluded from LRS limits and will not attract TCS	MoF Press Release	Scope/ definitions
Press Release (Ministry of Finance): Important changes w.r.t LRS and TCS (deferral and thresholds)	Press Release	June 2023	(a) superseded the 19 May 2023 clarification and postponed implementation of the 16 May 2023 FEMA amendment, keeping overseas international credit card spends outside LRS (and outside TCS) until further order (b) restored INR 7 lakh annual threshold for TCS across all LRS categories irrespective of purpose (c) specified post-threshold LRS TCS rates: 0.5% for education loan, 5% for education/medical, 20% for other purposes (d) specified overseas tour programme package TCS: 5% up to INR 7 lakh and 20% above, INR 7 lakh (e) deferred the increased TCS rates to October 1, 2023.	MoF Press Release: LRS/TCS	Implementation/ deferral; Rate/ threshold
CBDT Circular No. 10 of 2023 (Guidelines to remove difficulty in implementation of changes relating to TCS on LRS and overseas tour packages)	Circular	June 2023	(a) clarified that overseas international credit card spending is not treated as LRS for now, so no TCS on such spends till further order (b) clarified that the INR 7 lakh LRS threshold for TCS applies per remitter (not separately per purpose or per authorised dealer) (c) clarified category boundary for overseas tour programme package, standalone international air ticket or standalone hotel booking is not a "package" (package must include at least two specified components)	CBDT Circular 10/2023	Scope/ definitions
Circular No. 11 of 2023	Circular	July 2023	(a) no change to TCS rates/thresholds/categories/exemptions.	CBDT Circular 11/2023	Scope/ definitions
Foreign Exchange Management (Current Account Transactions) Amendment Rules, 2023 (re-insertion of Rule 7)	Regulation	June 2023	(a) reinstated exemption in FEMA Current Account Transactions Rules, excluding overseas international credit card use from Rule 5 (and therefore from LRS accounting), reversing the 16 May 2023 omission	FEMA CAT Rules, 2000: Rule 7	Scope/ definitions
Finance Act, 2024	Law	February 2024	(a) Inserted a sixth proviso to s.206C(1G) governing TCS collection based on the pre-amendment position (as on 01-04-2023.	Income-tax Act, 1961: s.206C(1G) (sixth proviso)	Implementation/ deferral
Finance Act, 2025	Law	March 2025	TCS thresholds increased.	Income-tax Act, 1961: s.206C(1G) (threshold amendment)	Rate/ threshold
Finance Bill, 2026	Law	February 2026	(a) proposed reducing TCS rate for LRS remittances for education/medical treatment (above INR 10 lakh) from 5% to 2% (b) proposed reducing TCS on sale of overseas tour programme package to 2% and removing the threshold/slab so 2% applies irrespective of amount (c) retained 20% TCS rate for LRS purposes other than education/medical.	Finance Bill, 2026: s.206C(1G)	Rate/ threshold

Regulatory uncertainty

A predictable, stable regime is important for economic freedom. Economic freedom implies the ability to plan properly, and planning requires foreseeability and predictability. The table above discusses frequent regulatory changes to the LRS and overseas travel framework since 2020. The government has revised thresholds, exemptions, rates frequently, set different TCS rates for different categories of spends and revised them, exempted non-residents, included or excluded foreign credit and debit-card spends, clarified what purchasing an overseas tour package means, and so on.

This matters for economic freedom: individuals cannot reliably forecast the cost of lawful foreign transactions, intermediaries cannot standardise compliance processes, and the effective burden depends on the tax rate, on exclusions and exemptions, as well as whether refunds are timely.

TCS on LRS and overseas travel as a hindrance to economic freedom

LRS was introduced in 2004 as part of a broader liberalisation of Indian finance in 2004. Since then, the LRS limit has been increased gradually from USD 25,000 to USD 250,000. This liberalisation reduced frictions in the ability of Indians to transact abroad, purchase foreign goods and services, and contributed to India's global integration.

In 2020, the Finance Act introduced a friction of a 5 percent TCS, which it increased to 20 percent in 2023 for purposes other than education and medical expenses. The budget speeches of the Finance Minister in Parliament ( 2020-21 and 2023-24 ) do not provide any reasons for introducing this friction. TCS is collected at the time of transaction, regardless of eventual tax liability. TCS imposes a significant friction on such activity. By doing this, the TCS changes the set of choices individuals have by making certain specific uses and transactions costlier from the perspective of both compliance and financial liquidity. In addition, if refunds are delayed, the private cost is not 20%, it is the aggregated cost of the time value of money, the opportunity cost of having made other choices had this liquidity constraint not been imposed, as well as the friction and uncertainty of Indian tax compliance.

Finally, the effect of the TCS is distributional regressive. Individuals facing the highest liquidity constraints are hit the hardest (young professionals, small business owners, families with recurring expenses, etc.). While lower frictions for educational and medical purposes alleviate some of this, the remaining frictions impose invisible opportunity costs on many other types of potential activities.

Paying advance TCS on overseas travel

While the TCS on LRS taxes foreign remittances, the TCS on overseas travel taxes even domestic transactions.

It is important not to equate foreign remittances with domestic transactions. The state regulates cross-border outflows under FEMA and other regulations and has articulated some objectives for this (e.g., managing outflows, monitoring, national security), even if one disagrees with the choice of objective or the proportionality of the instrument. By contrast, domestic transactions already sit within a general indirect tax architecture (GST), whose design objective was precisely to subsume transaction taxes into a broad-based system.

The issue here is not whether cross-border remittances can ever be regulated or taxed, but whether a narrow, high-variance transaction friction outside the GST framework, where the tax is collected upfront regardless of eventual tax liability, represents a coherent and proportionate policy design.

CBDT Circular 10/2023, Question 8, states that "overseas tour program package" includes expenses for "travel" or "hotel stay" etc., and then clarifies that purchase of only an international travel ticket or only hotel accommodation "by in itself is not covered."

Though two of three conditions need to be fulfilled for this to be triggered, it effectively brings domestic payments within its ambit. If one buys an international flight ticket from a domestic airline or a domestic travel aggregator as part of an overseas tour, such domestic expenditure in INR will also be included within the threshold of the TCS. As drafted, this requirement seems to collect an advance tax on individuals spending within India's domestic economy for foreign travel, as well as any spends outside India. This is novel, as earlier prohibitions, even in the license-raj era focused on foreign transactions and remittances, not domestic consumption of goods and services for foreign travel. The use of tax-based frictions serves to reduce the average Indian individual's integration with the globalised economy. In addition, the continual changes discussed above also affect the predictability and forecasting of decisions within the domestic economy because domestic spends on foreign travel are also included within the ambit of TCS.

One possible defence of this TCS is that it is intended to reduce certain outflows, analogous to a Tobin-tax style tax on foreign exchange transactions. The analogy is limited. Tobin's proposal was to cushion exchange-rate fluctuations. It was also designed to disincentivise very short-term speculative round-tripping transactions through a small uniform charge on foreign exchange conversions. The TCS regime is significantly broader in coverage (household remittances and even a domestic purchase trigger for overseas tour packages) and has been set at rates (e.g., 20 percent for many categories) that are far from marginal.

The Finance Minister in her budget speech of 2026 has proposed to rationalise many of the tax rates under the TCS regime. The proposal to reduce TCS to 2 percent for certain categories moves the rate closer to the range conceptually associated with a low-rate transaction tax. The current budget proposal is welcome. However, the deeper concern is the instrument design: a transaction-specific levy that is collected upfront irrespective of final liability, without sectoral neutrality and predictability. A better course of action will be to only pursue those cross-border transactions where the Indian state has clearly articulated objectives in a neutral, low-friction, predictable manner. Absent this, the core concerns remain about the design, and the consequent inability for households to plan and execute their economic activities.

Anirudh Burman is a research at XKDR Forum.

Are all regulators equal? The Supreme Court doesn't think so

by Chitrakshi Jain and Bhavin Patel.

Introduction

The judiciary has played a very important role in the development of the regulatory state in India. Thiruvengadam and Joshi (2013) argue that this is dissimilar to the evolution of the regulatory state in the global North, where courts have been marginal actors. In contrast, the Indian Supreme Court, they reveal, has on multiple occasions mediated conflicts that arose during the reform of telecom regulation and in this process imparted institutional credibility to the sectoral regulator. Consequently, the Supreme Court's role in designing the regulatory state should be studied more closely. In this article, we examine the implications of select Supreme Court decisions which shape the characterisation of regulators' functions and their appellatory rights.

It bears repeating that regulators in India accumulate executive, legislative, and quasi-judicial functions. This accumulation of functions combined with ambiguous laws that outline the powers of regulators has led to a scenario where the courts have been asked to clarify the character and nature of functions and the corresponding appellate remedies.

Regulators in India are not similarly situated vis-a-vis the powers that they have been bestowed with. This complicates matters even further. In the case of utilities, regulators are tasked with the crucial function of determining tariffs (amongst others). The allocation of this function to regulators was critical in ensuring that these sectors are depoliticised, for state governments perceivably manipulate rational determination of tariff to advance their political interests. Regulators are instead expected to rely on their expert knowledge and make tariff determination a rational and efficient exercise which protects consumer interest.

In three decisions, PTC v CERC (2010), GRIDCO v Western Electricity Supply Company of Orissa Ltd and Ors. (2023), and AERA v Delhi International Airport Ltd. (2024), the Supreme Court has been asked to rule on the nature of tariff determination in regulators, especially the various Electricity Regulatory Commissions (ERCs). In this article, we examine how these decisions have shaped regulatory practices and study whether the interventions by the Supreme Court have:

1. been consistent in identifying the nature of tariff determination across regulators;
2. led to inconsistency in the substantive appellate rights of regulated entities in sectors governed by different regulators.

We first outline the reasoning from the recent decisions of the Supreme Court on tariff determination. We proceed to identify the challenges they create for the development of regulatory theory in India generally. Lastly, we conclude with the suggestion to legislate based on principles that should apply uniformly across regulators.

Judicial decisions

The PTC, GRIDCO, and AERA decisions have a bearing on the following issues:

1. What is the nature of tariff determination? Is it a quasi-judicial function?
2. Can a regulator prefer an appeal against an adverse appellate order which modified or overruled the regulator's tariff order?

In PTC, the Supreme Court was asked to clarify whether APTEL has the power of judicial review and the authority to decide on the validity of regulations made by the Central Electricity Regulatory Commission (CERC). In the course of its reasoning, the Court observed that tariff determination, while being legislative in character, is made quasi-judicial in the context of the CERC because the Electricity Act, 2003 (Electricity Act) has made tariff orders appealable to APTEL. The judgment was rendered by a constitution bench (5 judge) of the Court and limited the scope of its application to the statutory scheme in the Electricity Act. This has not stopped parties from invoking the reasoning given in PTC in matters where other regulators are involved. For example, counsels for Delhi International Airport Ltd., in AERA placed reliance on PTC to argue that tariff determination is a quasi-judicial function.

In GRIDCO, a division bench of the Supreme Court developed upon the reasoning in PTC (that tariff determination is a quasi-judicial function) and extended it to argue that it would be improper for regulators to prefer appeals against orders of the APTEL to the Supreme Court. While the Court did not sufficiently explain its reasoning, it implies that regulators cannot be parties to appeals against orders which are passed while discharging a quasi-judicial function.

Finally, in AERA, a full bench of the Court clarified the law on impleadment of regulators as parties in appeals. It held that while an authority discharging a quasi-judicial function should not be impleaded as a party to an appeal, such an authority must be impleaded as a respondent in an appeal against its order if it was issued in exercise of its regulatory role or if its participation can further effective adjudication. The Court said that the PTC judgment should be treated as authoritative only to argue that classifying tariff determination as legislative or an adjudicatory function should depend on the statute which distributes the powers to the relevant authority. To hold that AERA is allowed to appeal, the Court after reading the statute argues that tariff determination for aeronautical services is a 'regulatory' function.

Collectively read, these judgments fall short of clearly articulating an objective criteria for demarcating the different functions exercised by regulators. Consequently, these determinations have to be located in the laws that create each individual regulator, and post facto by judicial interpretation. The lack of a well-defined objective criteria for identification of different functions has serious implications for Indian regulatory theory.

Problems for regulatory theory

These cases raise three major problems for Indian regulatory theory:

SRAs are treated differently

While PTC and GRIDCO hold that tariff determination by ERCs is a quasi-judicial function, AERA holds that a similar exercise by the regulator would be a 'regulatory' function. All three cases rely on interpretations of the SRAs' parent statutes to arrive at this conclusion. The judicial discussion hinges on points such as whether the statute provides an appellate mechanism against tariff determination orders. But this does not answer the question of what the core characteristics of quasi-judicial or regulatory functions are. This is ad hoc and intricate statutory interpretation which does not illuminate any underlying principles of Indian regulatory jurisprudence.

While GRIDCO casts doubts on an ERC's ability to file an appeal against an adverse APTEL order on an appeal from its quasi-judicial orders (which, as we have noted above, include tariff determination orders), AERA can file appeals against TDSAT orders arising out of its tariff determination orders. This creates an arbitrary distinction between these two SRAs. The court decisions turn on intricate statutory interpretation, but do not tell us anything about the distinguishing features of the underlying nature of tariff determination at these two SRAs.

No ex ante certainty on nature and appealability of orders

Since no clear rules emerge from these decisions regarding how to distinguish between quasi-judicial and regulatory orders, or whether SRAs can file appeals against adverse appellate tribunal decisions in appeals against their quasi-judicial orders, there is no clarity on these points as regards other SRAs. Whether a particular order passed by an SRA is quasi-judicial or regulatory, or whether it can file an appeal to defend such orders, has to be decided on a case-by-case basis. The answers to these questions can only obtain certainty when the Court pronounces on them.

This means that there is no ex ante conclusive answer to these questions in Indian regulatory jurisprudence. SRAs, regulated entities, and other concerned parties have a tough enough job navigating the maze of Indian regulatory case law as matters stand - they do not need the added uncertainty created by these decisions to make things worse. It is also deeply concerning that fundamental questions about character of functions and right to appeal are being decided decades after these laws were enacted.

The lack of ex ante clarity on these matters also complicates the job of the appellate tribunals, who have to justify choosing between precedents that are not consistent with each other. For example, very recently APTEL had to carefully navigate its way through PTC, GRIDCO and AERA to justify placing reliance on AERA and argue that tariff orders are also legislative and regulatory in character and that regulators should be allowed to defend their orders.

APTEL becomes the final authority on tariff determination

Tariff determination is delegated to ERCs via legislative mandate. The reasons traditionally offered for this include sectoral expertise and independence from the political executive. In addition, we may note that ERCs are much closer to the ground, as it were, and have (or should have) access to much more information about factors for tariff determination. As such it is ERCs, and nobody else, who should determine tariffs.

But if an ERC passes a tariff determination order, and APTEL sets it aside or modifies it, then the ERC cannot file a second appeal before the Supreme Court, even when they are the only contesting parties. This effectively means that APTEL's decision on tariff determination automatically trumps the decision of the expert body specifically identified by Parliament to take such decisions. Additionally, if APTEL makes an erroneous decision, the possibility of it being corrected is diluted unless regulated entities challenge it before the Supreme Court.

This amounts to an egregious violation of the principle of separation of powers across Parliament and the judiciary.

Conclusion

The problems identified above all point to the need for a better theory of institutional design for Indian regulators. One can take the view that this is still a relatively new area of Indian jurisprudence, since regulators are (other than the RBI) a fairly modern addition to the structure of the Indian government. That said, the ERCs were created in 1998, and it has been 28 years since. Similarly, it has now been well over three decades that SEBI was established, and over a quarter of a century since TRAI was set up. Surely enough jurisprudential mileage has been accumulated now to warrant some stock-taking:

1. We need a clear articulation of the different types of functions that regulators may discharge, and a categorisation of these functions into the three broad heads of executive, quasi-legislative, and quasi-judicial. Such a theoretical categorisation is necessary because judicial interpretation has led to varying, ad hoc categorisation across SRAs. Without a strong justification - which cannot be based on statutory hair-splitting - this is arbitrary, since it means that regulated entities in different sectors are treated differently. Calling a function 'quasi-judicial' means something: appellate rights exist, and certain judicial procedures have to be followed in discharging them; calling it 'executive' means limited grounds of judicial review are available through writ proceedings, and fewer procedural safeguards apply.
2. The Tinbergen Rule may help here - for each policy target a regulator is expected to influence (tariffs, enforcing regulation, contractual disputes, etc.), they must use a distinct instrument. This way each policy target stands a better chance of being achieved, and no conflicts arise from attempts to use the same instrument to achieve multiple targets. Law makers will have to think harder about the specific targets they want regulators to achieve, and for each, describe the instrument they must use. This legislative prophylaxis eliminates the risk of contradictory judicial interpretations later.
3. Pertinently, in its 31st report, the Parliamentary Standing Committee on Energy reviewed the Electricity Bill 2002 and acknowledged that assigning all the three functions to the same institution can create challenges and had asked for a reconsideration of the clauses assigning functions to the regulators. It is unclear whether a careful examination of the relevant provisions has since been undertaken; however, the implications of not delineating the functions in the statute itself can be seen in the repeated litigations before the courts.
4. Tariff rationalisation is listed as an objective in the long title of the Act. Regulators have expertise and independence from the executive, hence they are entrusted with such functions in infrastructure industries like electricity. Regulators are also obliged to ensure costs are efficiently allocated and consumer interest is protected at the same time. If we expect regulators to be accountable, they should also have the right to defend their decisions on tariff determination in a second appeal; not allowing this prevents them from discharging their function effectively.
5. Given the need for a uniform theory across regulators, and the need to avoid ex post determination through the judicial machinery, the categorisation of functions we propose should be done through a statutory instrument. The American Administrative Procedure Act is one example of how this can be done. It is possible that new functions emerge with changing circumstances; these can be addressed through amendment, rather than judicial review.

These measures will help achieve the goals of uniformity across regulators, non-arbitrariness in classification of functions, and greater certainty and predictability for regulated entities. The current proliferation of judicially-determined, ad hoc rules is undesirable, and helps with none of these objectives.

References

Judiciaries as Crucial Actors in Regulatory Systems of the Global South: The Indian Judiciary and Telecom Regulation (1991-2012) by Arun K Thiruvengadam and Piyush Joshi [2013] Oxford University Press.

Electricity Tariffs by Javier Reneses, María Pía Rodríguez and Ignacio J.P. Arriaga [2013] Springer.

Chitrakshi Jain and Bhavin Patel are researchers at the TrustBridge Rule of Law Foundation and would like to thank Renuka Sane and Ajay Shah for useful feedback.

Can technology augment order writing capacity at regulators?

by Natasha Aggarwal, Satyavrat Bondre, Amrutha Desikan, Bhavin Patel and Dipyaman Sanyal.

Indian regulators have extensive quasi-judicial powers that they express through adjudicatory orders. It is critical that these powers are exercised in a proportionate, legitimate, and well-reasoned manner, as they not only impact the persons directly involved, but also the wider ecosystem in which they operate. Arbitrary actions, unsubstantiated by clearly articulated reasoning, can raise serious concerns around the legitimacy of regulatory actions and lead to a loss of confidence in the regulator. Such actions may also be set aside by appellate and review fora. Clearly written, well-researched, and reasoned orders help provide clarity, predictability, and knowability of the law, which are key indicators of a rule of law system (Aggarwal, Patel and Singh, 2025). Our study of the state of Indian regulatory order writing shows there is room for improvement in this regard.

We notice a growing interest in the use of Generative Artificial Intelligence (Gen AI) to resolve procedural inefficiencies at quasi-judicial and judicial authorities in India (Supreme Court Committee on AI, 2025; Kerala High Court, 2025), coupled with concerns around the potential dangers of using such technologies without adequate safeguards. Against this background, in a new working paper titled, 'Can technology augment order writing capacity at regulators?' we critically examine the opportunities and challenges of using technology, in particular Large Language Models (LLMs), to assist regulatory order writing in quasi-judicial settings.

The paper proposes augmenting rather than replacing human decision-makers, aiming to improve regulatory order writing practice through responsible use of LLMs. It identifies the core principles of administrative law that must be upheld in these settings - such as application of mind, reasoned orders, non-arbitrariness, rules against bias, and transparency - and analyses how inherent limitations of LLMs, including their probabilistic reasoning, opacity, potential for bias, confabulation, and lack of metacognition, may undermine these principles.

While the available Indian literature on the topic focuses largely on these limitations, and on critiquing proposals based on an over-reliance on technocratic means to improve state capacity, this paper's contribution lies in its integrative work: we draw upon the design principles articulated in frameworks developed in other jurisdictions and relate them to the applicable principles of Indian administrative law. We use this synthesis to develop a Problem-Solution-Evaluation (PSE) framework that is attentive to international practice, the legal principles underpinning quasi-judicial decision-making in India, and problems and limitations inherent to GenAI and LLMs.

The PSE framework proposed in the paper maps specific technical, design, and systemic solutions to each identified risk, and outlines evaluation strategies - end-to-end, component-wise, human-in-the-loop, and automated - to ensure ongoing alignment with legal standards. An overview of the framework is set out in the table below:

Table 1: Applying the Problem-Solution-Evaluation framework. This table illustrates how the PSE framework can be operationalised to align the design, development and use of LLMs for order writing assistance with the requirements of Applicable Law.

Problem	Applicable law	Solution	Evaluation
Non-application of mind	Non-application of mind; Failure to provide reasons; Arbitrariness	Interface Checkpoints; Confidence Score Display; Dual-Prompt Pipelines; Functionality Limitation; Constraint Enforcement; Workflow Design for; Review Role-Based Access	Edit Rate; Turnaround Time (TAT); Prompt Divergence Rate; Coherence Score
Black-box problem	Failure to provide reasons; Transparency	Chain-of-thought prompting; Input Token Influence Identification Symbolic Reasoning Systems Traceability tools; Visualisation; Simplified model explanations	Clarity rating; Audit Trail Incidence Document Traceability Rate
Potential for bias	Rules against bias; Arbitrariness	Data Preprocessing; Bias penalisation; Domain-specific content filters; Automated Bias Flagging Tools; Establishment of Legal Fairness Criteria; Mandatory Periodic Benchmarking	Bias Flag Rate Override Percentage; Fairness Benchmark Scores
Confabulation problem	Non-application of mind; Failure to provide reasons; Arbitrariness	Retrieval Augmented Generation; Post-Generation Verification; Legal Knowledge Graph Integration; Mandatory reviewer verification; Watermarking for traceability; Communicate technical limitations	Secondary LLM ''Judge'' for Fact-Checking; End-to-End Evaluation Tools Hallucination Rate; Retrieval Precision@k/ MRR NLI Coherence Checks; Self-Consistency Rate
Lack of metacognition	Non-application of mind; Arbitrariness	Prompt engineering; LLM as a judge; Iterative improvement from feedback	Closeness Metric; Human evaluation on overconfidence in output
Training corpus	NA	Adaptive Scraping Frameworks; Sector-specific pre-training; Structured Entity; Extraction and Legal Knowledge Graphs; Isolated Model Containers; Source inclusion; Perplexity tracking; Legal Retrieval Benchmarking; Curate sector-specific legal databases	Crawl coverage; OCR Error Reduction; Validation perplexity; Retrieval lift
Data security and privacy	NA	Stringent access control; Synthetic supervision-based PII detectors; NLP filters for information masking; Isolated Model Containers; On-premise infrastructure	Unauthorised access attempts; Mean Time To Remediation (MTTR); Penetration Test Pass Rate; PII Detection Accuracy

By itself the framework may be insufficient. It must be supplemented with systemic measures taken at the regulatory level. We offer stage-wise recommendations on how LLM-based order review tools can be built for and used in regulatory adjudication.

References

Natasha Aggarwal, Bhavin Patel, and Karan Singh, "A Guide to Writing Good Regulatory Orders" [2025] Trustbridge Rule of Law Foundation Working Papers.

Anurag Bhaskar and others, "White Paper on Artificial Intelligence and Judiciary" Centre for Research and Planning, Supreme Court of India, 2025.

High Court of Kerala, "Policy Regarding the Use of Artificial Intelligence (AI) Tools in District Judiciary" Official Memorandum HCKL/7490/2025-DI-3-HC Kerala, 2025.

Natasha Aggarwal, Amrutha Desikan and Bhavin Patel are researchers at the TrustBridge Rule of Law Foundation. Satyavrat Bondre and Dipyaman Sanyal work on AI and technology at dōnō consulting.

Return to sender: The misuse of remand orders by appellate tribunals

by Natasha Aggarwal and Bhavin Patel.

Appellate tribunals were established to ensure speedy and expert adjudication of appeals from regulators' orders. A defining feature of their institutional design is the inclusion of both judicial and technical members. Judicial members possess legal training and skills and can ensure the application of, and compliance with, judicial principles, such as the principles of natural justice. Technical members are expected to bring sector-specific knowledge relevant to the domain of the tribunal's work. As such, tribunals are 'expert' bodies that are well-equipped to provide speedy and efficient resolution and it would be incorrect to assume that they lack the technical expertise necessary to decide a matter on merits.

However, tribunals in India frequently remand matters to regulators. Our analysis of 764 cases disposed of by the Securities Appellate Tribunal (SAT) from 2009 - 23 reveals that 76 cases (10%) resulted in a remand (Aggarwal and others, 2025). Further, our analysis of 919 cases disposed of by the the Appellate Tribunal for Electricity (APTEL) from 2013 - 22 reveals that 200 cases (21.7%) resulted in a remand (Jain, Patel and Sane, 2025). The fact that one in ten instances before the SAT and a staggering one in five instances before the APTEL are remanded is a matter of concern. Remands result in additional time and resources being spent on resolving a matter, since the dispute is first heard by the regulator, then in challenge by the tribunal, and then, once again by the regulator. Therefore, it is important to study the reasons provided by the tribunal when it remands a matter.

In a recent paper, titled "Return to sender: The misuse of remand orders by appellate tribunals", we study orders issued by the SAT and the APTEL in 2024, evaluate the instances in which the SAT and the APTEL remanded matters, and examine whether these remands are consistent with recognised legal principles regarding when a remand may be ordered. The paper was also included in Daksh's "The State of Tribunals Report", which was released on 25 September 2025.

Our paper addresses three questions:

• What costs do remands impose on the parties and the adjudicatory infrastructure of regulators?

  Our examination of two matters, one originating at SEBI and the other originating at the Kerala Electricity Regulatory Commission, shows that remands cause delays that span up to 14 years. This defeats one of the primary reasons for establishing tribunals, that is, to ensure speedy justice.

• What reasons does the law recognise as valid for remands by tribunals?

  Our earlier studies demonstrate frequent remands by SAT and APTEL. Indian law circumscribes the instances in which courts may order remands. These boundaries are set in the Code of Civil Procedure, 1908 (CPC) and in judicial decisions of superior courts. The CPC, parent statutes that establish tribunals, and rules of procedure framed by tribunals for themselves do not, however, clearly identify when tribunals may remand matters. There is limited guidance on this in superior court decisions. We argue that the reasons for which courts can order remands should also limit the discretion of tribunals in remanding matters. We call these reasons "Permissible Reasons" for remand, and classify any other reasons provided by tribunals when remanding matters as "Other Reasons".

• How many matters were remanded by SAT and APTEL in 2024? What reasons were provided? Are the reasons permissible under law?

  We study the orders of SAT and APTEL for 2024, in which there are 13/228 (5.7%) remands ordered by SAT and 28/171 (16.4%) remands ordered by APTEL. We find that the SAT ordered a remand for Permissible Reasons in 21 appeals and for Other Reasons in four appeals. The APTEL remanded the matter for Permissible Reasons in 26 appeals and for Other Reasons in 37 appeals.

We find that remands are often ordered for reasons that are not included in the CPC and applicable common law. Unnecessary remands add time and cost to regulatory proceedings. They undermine investor confidence in regulated sectors, since it is difficult to take business decisions in the face of uncertainty about whether a regulator's orders will have to be reconsidered and modified. This also adversely affects the rule of law requirements of predicability and certainty in regulatory proceedings.

There may be several ways to reduce this problem, including, possibly, by improving order writing practices at the regulators whose orders are challenged in appeal before tribunals. We suggest that it is also useful to consider how this problem can be addressed at tribunals, and therefore recommend that:

• Clear rules determining the scope of the power of ordering a remand should be made applicable to all tribunals. These rules should apply in a consistent manner across tribunals, rather than being framed by each tribunal for itself. This will help ensure consistency and predictability, and limit the discretion of tribunals in this matter.
• These rules should be incorporated in the parent statutes of tribunals.
• In the absence of any reason to deviate from the rules on remand provided in the CPC and applicable common law, the scope of remanding power for tribunals should be the same as that available to courts.

Providing this clarity would help avoid unnecessary and unreasonable orders of remand, and help ensure that the core rule of law principles of consistency, predictability, and clarity are satisfied in the procedural aspects of the functioning of tribunals.

References

Natasha Aggarwal, Amol Kulkarni, Bhavin Patel, Sonam Patel, and Renuka Sane, "Balancing Power and Accountability: An Evaluation of SEBI's Adjudication of Insider Trading" [2025] (13) Trustbridge Rule of Law Foundation Working Papers.

Chitrakshi Jain, Bhavin Patel, and Renuka Sane, "Examining the performance of ERCs at APTEL" [2025] The Leap Blog.

The authors are researchers at the TrustBridge Rule of Law Foundation.

A Score Card for Pre-Legislative Consultation

by Mallika Dandekar and Antaraa Vasudev.

In 2014, the Ministry of Law and Justice published the 'Pre-Legislative Consultation Policy of 2014', the policy aims to create a framework for effective participation in lawmaking. This policy encouraged Ministries and Departments at the State and Central Levels to proactively publish and seek feedback on draft laws and policies.

Pre-legislative consultation, if implemented to its full potential - is a crucial tool in removing the democratic deficit in law formulation and regulatory functioning. Pre-legislative consultation (or public consultation as is commonly referred to), refers to the process of publishing a draft regulation or legislation for public comment for a period of time to gather feedback from practitioners, academics and the lived experiences of citizens impacted by the law. Consultation leads to further deliberation on the instrument, and re-drafting of certain clauses as needed.

While one may make the case for faster lawmaking, consultation if implemented correctly highlights the practical constraints of a law or policy document, which may not otherwise be visible to an administrator, without adequate input from those impacted by the instrument.

While India's history of consultation (particularly among Parliamentary standing committees and regulators) is long standing - the process continues to be viewed largely as a qualitative or unstructured process to be implemented. This poses challenges as it enables a great amount of discretion in consultation methodologies, and subsequently the input that informs the policy.

The subject of Pre-Legislative Consultation has garnered significant traction in Parliament since 2014. Member of Parliament - Supriya Sule proposed the private member bill the 'Pre-Legislative Consultation Bill, 2019', another private member bill was introduced byMember of Parliament - Jagdambika Pal, titled the 'National Consultation Commission Bill, 2019'. The Finance Minister in budget speeches of 2023-24 and 2025-2026 emphasised on the importance of regulatory consultation and impact assessment. More recently RBI, PFRDA and other regulators have made significant strides in codifying the process of consultation. Borrowing from these examples, as well as international best practices - Civis has aimed to devise a robust methodology to assess and evaluate the procedural integrity of India's pre-legislative consultation methodologies across Central, State Governments and regulatory bodies.

What follows is an exploration of the methodology devised to assess consultations, and an open invitation to assist with contributing to and enhancing the methodology. Annually, these parameters are used to assess consultations culminating in a platform to share recognition with those who excel in implementing the process - an initiative known as CIPCA (Civis' Public Consultation Awards).

The 10-Criteria Matrix of the Methodology:

Building upon a robust theoretical and practical foundation, Civis has codified a methodology. This framework combines academic standards and best practices with Civis' practical experience in fostering public engagement. The core of this methodology is a 10-criteria list, organised under four overarching analysis metrics, designed to provide an assessment of any public consultation.

The methodology to assess public consultations relies heavily on India's 2014 Pre-Legislative Consultation Policy, the United Nations Public Consultation Index, OECD's Practitioners Handbook on Public Consultation, and inputs from our jury of practitioners involved in the awards in 2024 and 2025.

A. Quality of Consultation Document

The first set of matrices assess how effectively the government's document presents the proposed policy for public feedback, focusing on its clarity, comprehensiveness, and accessibility.

1. Justification:This criterion looks at whether the consultation document clearly articulates the rationale behind the proposed policy or legal change. Is the problem it seeks to address defined well, with the context in which it is being proposed, including relevant background, existing issues, and the objectives it aims to achieve? A strong justification helps citizens understand the 'why' behind the proposal, enabling more informed and relevant feedback. Assessing the justification required qualitative assessment of the Consultation document. The jury across the first and second edition has retained this criterion as its original conception.

   This criterion is borrowed from the Pre-Legislative Consultation Policy, particular Section 2 that reads "The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc". This section has also helped shape the next 3 criteria, as detailed below.

2. Essential Elements: This criterion looks at whether the proposed changes, new provisions, or key components of the draft are clearly outlined. Citizens should be able to easily identify and understand what exactly is being proposed, and its key features. These include any proposals being made, key rights and penalties, or any other government intervention or policy decision. The qualitative test is to discern whether these proposals are clear, with no room for ambiguity.

3. Impact Assessment: Has the potential impact of the proposed draft, including financial, social, environmental impact, been analysed and stated within the document? The third criterion looks at this issue in great detail. Transparency about potential impacts, both positive and negative, is crucial for citizens to assess the draft's broader implications and offer feedback after considering these effects. In edition one of the awards, the impact assessment was calculated uniformly across the financial, social and economic impacts flowing from the policy and whether it was articulated. This was an extremely subjective process, validated by each level of deliberation.

   However, as we evolved the criteria for the second edition through fresh deliberations with the jury, it led to a demand for increasing the granularity and detail in how this criterion was evaluated. Hence, we sought support from the Trustbridge Foundation, and the team led by Dr. Renuka Sane, who further refined this criterion to include 25 sub-questions that were answered to arrive at the overall score.

4. Comprehension: This criterion asks the question of whether the draft can be easily understood by an average reader, even if they do not possess specialised domain expertise? This criterion qualitatively evaluates the document's readability, clarity of language, and overall user-friendliness. Is the language unambiguous, avoiding jargon where possible or providing clear explanations for technical terms? Complex technical concepts should be simplified or accompanied by clear explanations, and the document should be free of excessive jargon or overly academic prose.

   In addition to Section 2 of the PLCP, it also follows on the heels of Section 5 of the PLCP - "Every draft legislation or rules, placed in public domain through prelegislative process should be accompanied by an explanatory note explaining key legal provisions in a simple language".

B. Scope of Engagement Opportunities

These matrices evaluate the breadth and effectiveness of the consultation's reach and the opportunities they provided for stakeholders to engage.

1. Duration: Here, we looked at whether a consultation is open for a reasonable period, allowing sufficient time for stakeholders to review the document, understand its implications, and prepare their feedback. An inadequate consultation period can severely limit participation and the quality of feedback. This criterion is derived from Section 2 of the PLCP which reads: "...Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned".

   Across the two editions, the manner of scoring this criterion has evolved through deliberations with the jury. In year one, a more granular approach was adopted, similar to the other criteria, where a range of scores from 1-5 were applicable on a sliding scale based on the number of days a consultation was open for. This looked like:

   • Consultations that gave less than 20 days were marked a 1,
   • Those that allowed between 20 to 29 days were given 2 points,
   • Those that met the PLCP criteria of 30 days exactly received 3 points,
   • Those that allowed for 30 to 59 days received 4 points, and lastly,
   • Those that allowed for 60 days of more for comments received a full 5 points.

   However, the jury in the second edition recommended moving to a binary approach, where only two quantitative scores were possible: 1 for any consultation open for a duration under 30 days, and 5 for any consultation open for 30 days or higher. This was a deviation from our first edition, and it reflects the duration provision contained in the PLCP. In order to have a binary scoring, but not conflict with the scale on the rest of the criteria, 1 and 5 were chosen as the binary scoring indicators.

2. Outreach: Here, we consider if the outreach was comprehensive and diverse through various media and channels to ensure the consultation reached a broad range of relevant stakeholders and the general public. Effective outreach goes beyond merely publishing on a government website; it involves active dissemination through different platforms (e.g., print media, social media, community forums, targeted invitations) to maximise visibility and encourage participation. A compilation of all consultation outreach helped score the efforts undertaken by the relevant department.

   The criterion is derived from Section 3 of the PLCP which reads "Where such legislation affect specific group of people, it may be documented and disclosed through print or electronic media or in such other manner, as may be considered necessary to give wider publicity to reach the affected people".

C. Inclusivity

This set of matrices focuses on ensuring that the consultation facilitated diverse participation and equitable access for all citizens, regardless of their background or location.

1. Feedback Collection: The criterion considers whether multiple, accessible avenues were provided for stakeholders to submit their responses and feedback. This includes online portals, email, postal addresses, and potentially public hearings and interviews. Offering a variety of channels ensures that citizens with differing levels of digital literacy or access can participate effectively.

   This criterion builds on the principle outlined in OECD Practitioner's Guide on Stakeholder Consultations, which recommends evaluating consultations on the "transparency of the process and accessibility of the consultation, e.g., was there an equal opportunity to take part, was the process easily understood by stakeholders".

2. Translations: Here we considered if the consultation document translated into regional languages is relevant to the target audience. In a linguistically diverse nation like India, providing materials in national and local languages is paramount to ensuring true inclusivity, allowing citizens to engage with the content in their mother tongue and participate meaningfully. In addition, braille and sign language transcriptions have also greatly aided the accessibility of some drafts.

   Translation and accessibility of policy documents across languages is emphasised in OECD Practitioner's Guide on Stakeholder Consultations. The Guide recommends that consultation bodies "assure clear and plain language drafting, including in translations".

   Through deliberation, jury members concurred that English and Hindi translations for consultations with a national scope, and English and 1 regional language for a consultation with a regional scope would be scored quantitatively.

D. Open Governance

This final set of matrices examine the transparency and responsiveness of the consulting body throughout and after the consultation process.

Both transparency and responsiveness were created as qualitative criteria on the recommendation of the jury members on our inaugural edition of the awards. These criteria aim to highlight the importance of the completion of feedback loops and providing publicly accessible data, which are higher order asks - but extremely important to determine the responsiveness of policy making.

1. Transparency: Did the consulting body provide a report, a summary, or publish the responses received (in part or in entirety) after the close of the consultation period? Transparency in feedback processing is vital for accountability. It demonstrates that public input was received, analysed, and potentially influenced the final policy, fostering trust between citizens and government. It is also aligned with existing PLCP sections like Section 6 "The summary of feedback/comments received from the public/other stakeholders should also be placed on the website of the Department/Ministry concerned". Additionally, elements of this were also derived from a public consultation index created by UNDP (Page 16 of ASSESSING PUBLIC PARTICIPATION IN POLICY-MAKING PROCESS).

2. Responsiveness: The question to be considered here was if the consulting body is responsive to communications made through letters, RTIs, or other means by citizens or civic organizations.

   Responsiveness demonstrates that the government is open to dialogue and willing to address queries and provide information after the consultation process, reinforcing trust and encouraging future participation. Adding to transparency, responsiveness creates an additional avenue to allow government departments to publish and share information regarding the consultation process, i.e. even if they are not shared on their public websites and notices, they are open to sharing this information when specifically requested.

Application of the Methodology - Draft Kerala IT Policy 2023:

To better understand the methodology, we examine the Draft Kerala IT Policy 2023, ("Draft Policy") and through it explore how the methodology to assess Pre-Legislative consultation in India can be improved upon.

The draft policy in question received an overall score of 37 out of a possible 50 on the scale, translating to a 74% effectiveness rating in the last edition of the awards. In order to contextualise the draft as against other draft documents the mean and the standard deviation for the complete data set of 286 consultations has been calculated. This comparison is only illustrative, as the lawmaking procedures and maturity across State Governments, Regulatory Bodies and Central Legislators differ greatly.

This policy, released in September 2023, aims to be a blueprint for the state's IT sector growth and citizen well-being through digital technologies. We will integrate its performance against each criterion to provide a tangible illustration of Civis' methodology in action.

A. Consultation Quality - Draft Kerala IT Policy 2023

1. Justification: The Draft Policy scored outstandingly well (5/5) on this criterion. Sections 1.1 and 2.1 of the policy thoroughly state the need for an IT policy for Kerala. This is further supplemented by details regarding the state's and India's current IT infrastructure and the opportunities for Kerala to contribute to its betterment.

   The policy provides a clear background, detailing Kerala's historical strengths in IT (e.g., establishing Technopark in 1990) and the need for a new policy framework given global and national shifts in the digital landscape. It explicitly states its two-fold objective: leveraging IT, Electronics, and Space sectors for economic growth and adopting digital technologies for equitable, inclusive societal development.

   Mean Score: 2.74
   Standard Deviation: 1.49

2. Essential Elements: On this, the Draft Policy also received an outstanding score (5/5). Chapter II, titled 'Policy Framework,' meticulously lays down all essential elements, including 'Directions for Growth' (differentiating between economic and social development), 'The Enablers,' 'New Policy Framework,' and 'Policy Objectives.' Notably, section 2.2 explains the anticipated outcomes if the policy is implemented, showcasing forward-thinking and depth of thought. Furthermore, the policy addresses cybersecurity concerns through a dedicated section on 'Information Security' (Section 3.4) and discusses the augmentation of IT industry infrastructure via the development of four IT corridors in section 4.3.

   Mean Score: 3.73
   Standard Deviation: 1.12

3. Impact Assessment: The draft policy exceeded the average score here (4/5). The document effectively identifies the need for an IT policy in Kerala, backed by industry trends and growth potential. Stakeholder engagement and impact articulation are strong, as the Draft Policy incentives and investments for each business category separately. However, cost-benefit analysis and alternative strategies were not present explicitly, which was penalised. While implementation details exist, they lack clear timelines. Additionally, environmental impact, long-term evaluation, and rural integration were minimally addressed.

   Mean Score: 2.54
   Standard Deviation: 1.31

4. Comprehension: The policy also received a 4/5 for comprehension. The draft IT Policy is logically structured and emphasises inclusivity, innovation, and social equity. While it provides detailed objectives, strategies, and frameworks, its technical language may challenge non-expert readers slightly, but not significantly. Visual aids or summaries were absent which could have enhanced accessibility, and hence one point was lost. The document maintains clarity throughout, with no apparent contradictions.

   Mean Score: 3.28
   Standard Deviation: 1.03

B. Scope of Engagement Opportunities - Draft Kerala IT Policy 2023

1. Duration: The Draft Policy scored a 5/5 for its duration. The consultation period was from October 27, 2023, to January 31, 2024, for a total of 96 days. This significantly exceeds the recommended 30-day minimum, providing ample time for review and feedback.

   Mean Score: 2.85
   Standard Deviation: 1.23

2. Outreach: The Draft Policy received a 4/5 for its outreach efforts. The Government of Kerala extensively leveraged social media platforms, with posts found by Infopark, Technopark, and Kerala IT on X. Instagram posts were traced on Cyberpark Kozhikode and Infopark pages, and Facebook was utilized by Kerala IT, Technopark Trivandrum, Infopark, and Cyberpark Kozhikode. Several of these government undertakings also created awareness through their LinkedIn pages. The Draft was also available on the Kerala State Information Technology Infrastructure Limited (KSITIL)'s website. Furthermore, the erstwhile Secretary of the Kerala Electronics and Information Technology department utilized digital media to spread information about this policy.

   Mean Score: 1.49
   Standard Deviation: 0.80

C. Inclusivity - Draft Kerala IT Policy 2023

1. Feedback Collection: Here, the Draft Policy needed improvement (2/5). The Draft Policy did not mention any feedback collection mechanism. However, a webpage was created (https://itpolicy.startupmission.in/) to accept feedback in both English and Malayalam. While a digital portal was available, the lack of explicit mention within the policy document itself and potentially limited other traditional avenues for feedback impacted its score.

   Mean Score: 2.40
   Standard Deviation: 0.69

2. Translations: The Draft policy meets average expectations (3/5) in this category. The Draft is available in both English and Malayalam. This demonstrates a decent effort towards linguistic inclusivity, allowing a wider segment of the population in Kerala to access and understand the policy in their state language.

   Mean Score: 1.50
   Standard Deviation: 0.86

D. Open Governance

1. Transparency: The Draft Policy scored very low (1/5) on transparency. No published reports or public comments were found after the consultation period. Despite the general emphasis on e-Governance and proactive data disclosure within the policy, the lack of specific mechanisms for publishing feedback on this particular draft significantly impacts its score significantly.

   Mean Score: 1.59
   Standard Deviation: 1.20

2. Responsiveness: The Draft Policy exceeds expectations (4/5) in responsiveness. The Government of Kerala responded to Civis' RTI request and answered every question about the process individually. They also provided a list of all comments they received and shared that the final version of the document was not out yet, indicating that the consultation process still has the potential to yield changes to the policy. The criterion of responsiveness was only scored for the final 26 nominees, as data gathering for the full data set would be difficult. With that in mind, the scores for the 26 nominees are:

   Mean Score: 3.84
   Standard Deviation: 0.69

Conclusion

Codifying a methodology for assessment is the first step in building the legitimacy of the process of public consultation. Laying out a pathway for greater efficacy in consultations, and an enhancement of procedural trust in lawmaking as a whole.

The methodology outlined above works towards standardising a growing practice of consultation in India. However, there are unique improvements in consultative practices that we can look to from countries like Taiwan - which has institutionalised the platform vTaiwan, an open-source deliberative platform that brings together policy makers and citizens to deliberate national issues. Another example comes from the European Union's Regulatory Fitness and Improvement (REFIT) program which requires stakeholder consultation at all stages of policy formulation i.e., problem definition, solution identification, drafting, and evaluation.

While the domain of consultation is evolving, the authors invite scrutiny and feedback to enhance the parameters and measures of this methodology. With the aim of creating a practical and evolved framework for consultation evaluation and best practices in the country.

We invite suggestions on:

• Strengthening specific parameters of the evaluation framework.
• Defining the guardrails for what may constitute policy paralysis as opposed to constructive deliberation.
• Highlighting other consultative best practices which don't find mention in the methodology.
• Identifying national/international best practices that can be suggested to policy makers in the country.

Mallika Dandekar and Antaraa Vasudev are researchers at Civis.

Examining the performance of ERCs at APTEL

by Chitrakshi Jain, Bhavin Patel, and Renuka Sane.

Introduction

The efficiency of the State Electricity Regulatory Commissions (SERC)s, the Central Electricity Regulatory Commission (CERC) and the Joint Electricity Regulatory Commission (JERC) influence investability and growth of the electricity sector. For example, it costs regulated entities time and resources to petition the relevant ERC for decisions and potentially, to challenge decisions taken by the ERC at the appellate tribunal (APTEL), which exercises supervisory control over the ERCs and reviews their decision-making.

This article studies how ERC decisions perform at APTEL. We collect information about aspects of the ERCs' functioning from the text of orders passed by APTEL. This helps us (a) identify the most-litigious areas across ERCs and (b) examine how the ERCs' decisions perform in appeal. We use sub-national comparative analysis to understand the variation in the functioning of the different ERCs and the litigiousness of issues in different states.

We ask the following questions:

1. Which ERCs contribute the most appeals at APTEL?
2. What are the most litigious issues at APTEL?
3. In how many appeals was the ERC's decision:
   1. Upheld, i.e. appeal was dismissed by APTEL?
   2. Partially upheld, i.e. appeal was partly allowed at APTEL?
   3. Overturned, i.e. appeal was fully allowed at APTEL?
4. How often were the ERCs ordered to reconsider their decisions, i.e. the matter was remanded?

Our results suggest that issues related to tariff determination and restructuring are the most litigated issues at APTEL across ERCs, with the exception of Maharashtra. ERCs are differently situated in their ability to defend their decisions at APTEL and in the quality and clarity of their orders. We argue that such assessments, if regularised, can assist ERCs in improving the quality and form of their decision-making by creating a feedback loop, and can also assist in identifying areas for policy reform at the sub-national level.

Methods: Data

We obtained the orders passed by APTEL between the years 2013-2022 where the ERCs are a party to the challenge before APTEL. We excluded interim orders given that they do not include the outcome of the case. We focused on ten states, including Andhra Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Odisha, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh, and West Bengal. These were selected keeping in mind geographical coverage, size of the state, and installed renewable energy (RE) capacity in the state.

We collected information on 26 indicators from the orders, related to the following categories:

1. Time-related: e.g., date of orders, date of impugned order
2. Party-related: names of appellants, respondents
3. Bench-related: e.g., quorum, members' names
4. Subject-matter related: e.g., prayers, issues
5. Outcome-related: e.g., disposition and remand

We processed the text of the orders through LLMs, which we prompted to collect the information by placing reliance on explicit language in the text. After collecting the information for the relevant indicators, we ran verifications based on rules of legal consistency and logic to ensure that the collected information is accurate and reliable. For indicators related to outcome, we have made subjective inferences when the explicit information regarding its outcome was not articulated in the order. We have relied on individual appeals as the unit of analysis, given that outcomes are typically uniform for all parties in an order. We have integrated human verification at every stage of data collection to ensure reliability. Our final dataset consists of 513 orders and 919 appeals. The data is available here.

Methods: Issue categorisation

In order to study the issues that were being agitated before APTEL, we identified themes from the statement of issues in appeals which explicitly articulated them. There were 318 appeals (out of 919) that did not include a statement of issues. After classifying the issues thematically, we decided upon the final categories presented in Table 1 in consultation with practitioners. We ran keyword searches to sort the statement of issues into identified categories and verified the classification by reading the statements when they yielded unclear results for accuracy and reliability.

Table 1: Categorisation of Issues

Issue Category	Coverage
Tariff determination and restructuring	Challenges to tariff determination and adoption under Sections 62 and 63; inadequate attention to principles in arriving at tariff; revision of tariff and truing up.
Contractual disputes	Liquidated damages, outstanding payments, renegotiation or termination of contracts, excluding change in law and force majeure.
Change in law and force majeure	Subset of contractual disputes, relating to change in law and force majeure clauses in the contracts.
Procedural and jurisdictional	Procedural lapses, violation of principles of natural justice, challenges to ERC's jurisdiction.
Open access consumers	Wheeling and banking charges, and issues relevant to open access consumers.
Transmission and grid-related	Connectivity, ISTS and grid-related issues, including compliance with grid code.
Specific compliance with regulations	Mandatory non-tariff-related requirements for obligated entities, such as RPOs and RECs.
Captive status	Captive status of power plants or group captive power plants.
Others	Issues not falling under previous categories, e.g., distribution licensing.

Methods: Limitations

For the categorisation of issues we have relied on the statement of issues as determined by APTEL, in the instances it was explicitly identified in the order. Understandably, analysing the full text of the order will give deeper insights on the litigated questions. The outcomes, such as appeal allowed or dismissed, also do not provide information about outcomes on specific issues. This would entail reading the full orders and making subjective inferences. While the outcomes at APTEL have been used to assess the performance of ERCs, they do not measure the functioning of ERCs holistically, especially because studying the performance of APTEL is beyond the scope of this research.

Results

1. Distribution of litigation

Between the ERCs under study, Maharashtra followed by Karnataka, contribute to the most litigation at APTEL, as represented in Figure 1. These results indicate that the two states have a relatively larger private industry. However our analysis excludes writ proceedings, which are also used as a way to challenge ERC decisions. The total number of orders passed by ERCs is also not available uniformly across the ERCs to accurately calculate the rate of appeal.

Figure 1: Distribution of litigation at APTEL

2. Most litigious issues

ERCs are empowered to decide a wide range of issues. As a consequence, the issues dealt with by the APTEL in appeals are also varied. An appeal may involve more than one issue, and hence the number of issues involved is more than the number of appeals. As represented in Table 2, tariff determination and restructuring are the most litigated upon issues at APTEL across ERCs with the exception of Maharashtra. In Maharashtra, procedural and jurisdictional issues emerge as the most litigious. While the high incidence of such issues is concerning, issues of the procedural and jurisdictional variety can be resolved easily if ERCs invest in capacity building and follow the procedure under the law faithfully.

Our results corroborate the findings of an earlier study (Prayas 2018) which had found that a third of the issues being litigated before APTEL were concerned with tariff. Pertinently, the ERCs have enacted specific regulations related to tariff determination and made the calculation of tariff an exercise which is assisted by detailed delegated legislation. In this context, it is worrying that tariff continues to be the predominant category with regard to appellate litigation.

Table 2: Issue portfolio at different ERCs (Values in percentages)

State	Total Issues	Tariff related	Procedural & Jurisdictional	Contractual disputes	Specific Compliance	Change in law & force majeure	Open access	Trans-mission & grid	Captive status	Other
Maharashtra	248	26.61	32.66	2.82	3.63	3.63	6.85	4.44	16.53	2.82
Karnataka	171	30.41	26.90	22.81	1.75	2.34	6.43	6.43	0.00	2.92
Tamil Nadu	138	28.99	12.32	7.25	20.29	0.72	5.80	7.25	10.87	6.52
Punjab	96	33.33	11.46	15.62	14.58	8.33	7.29	4.17	1.04	4.17
Rajasthan	76	25.00	11.84	19.74	10.53	13.16	5.26	7.89	1.32	5.26
Madhya Pradesh	75	41.33	17.33	13.33	0.00	1.33	9.33	4.00	9.33	4.00
Andhra Pradesh	65	47.69	26.15	9.23	3.08	1.54	1.54	7.69	0.00	3.08
Uttar Pradesh	59	33.90	16.95	20.34	8.47	5.08	1.69	13.56	0.00	0.00
Odisha	49	34.69	16.33	6.12	16.33	0.00	8.16	10.20	6.12	2.04
West Bengal	29	62.07	13.79	3.45	13.79	3.45	0.00	3.45	0.00	0.00

In addition to the most litigated issues, we could also identify the states which contributed most to the litigation of a particular issue at APTEL. Maharashtra contributes the most to issues related to tariff, and procedure and jurisdiction. This outcome is also a function of Maharashtra being involved in the highest number of appeals in our dataset. The findings are presented in Table 3 below.

Table 3: Distribution of Issues

ERC which contributes most to the litigation of a particular issue at APTEL and the percentage share of their contribution

ERC	Issue	Contribution (%)
Maharashtra	Tariff related	20.1
Maharashtra	Procedural and jurisdictional	37.5
Karnataka	Contractual disputes	33
Tamil Nadu	Specific compliance with regulations	34.5

3. Outcomes

We focus on indicators related to the 'disposition' of the appeal from the information we had collected. We scored the performance of the ERCs relative to each other by making the number of decisions that were upheld, overturned or modified by APTEL as the basis of comparison. The results have been compiled in Table 4.

At an outcome level, if an ERC succeeds in defending its decisions, then it would indicate that the orders are well-reasoned, and the ERC follows the procedure under the law. A high overturn rate would indicate weak decision-making capacity.

Table 4: Dispositions at APTEL across ERCs

ERC	Allowed	Dismissed	Partly Allowed	Other	Remanded	Total
Andhra Pradesh	27	32	7	4	11	70
Karnataka	103	49	14	5	67	171
Maharashtra	92	61	31	62	35	246
Madhya Pradesh	22	17	11	8	13	58
Odisha	17	15	17	2	6	51
Punjab	18	28	22	6	13	74
Rajasthan	32	45	7	3	20	87
Tamil Nadu	22	33	19	9	20	83
Uttar Pradesh	15	26	11	5	10	57
West Bengal	4	8	6	4	5	22
Total	352	314	145	108	200	919

_{The categories "allowed", "dismissed", "partly allowed", and "other" are mutually exclusive. That is, if an appeal is allowed, it cannot be dismissed. However, the appeals that are remanded form a subset of either allowed or partly allowed.}

We find that ERCs are differently situated in their ability to defend their decisions at APTEL and the quality and clarity of their orders. Rajasthan found the most success at APTEL, Maharashtra had the least.

Typically, matters are remanded when APTEL is of the opinion that the relevant ERC did not, amongst other things, follow the procedure or frame the issues or determine question of facts sufficiently well. A high remand rate is worrying since it implies that either the ERCs in question are ill-equipped to resolve disputes in the first instance or that APTEL, unless it has insufficient evidence to make the decision, is abdicating its mandate.

Remands lengthen the resolution of disputes and burden regulated entities with legal and compliance costs. This can stymie the growth of the electricity sector, especially in states like Karnataka, for KERC has been asked to reconsider most number of its decisions when compared to other ERCs.

Recommendations

Both APTEL and ERCs are empowered to implement these recommendations.

1. Regularise assessments through use of emerging technologies

We recommend that such comparative assessment exercises be regularised through the use of emerging technologies. The composition of ERCs is constantly changing, and members would benefit from information about the performance of their decisions at APTEL closer to the date of the decisions. This can be made possible by creating a customised tool that leverages LLMs and the competence of researchers and practitioners familiar with the sector.

2. Publish granular statistics

APTEL can improve upon the collection and publication of litigation statistics and include the subject matter of litigation and the relevant laws that are under litigation, amongst other categories, in this exercise. Similarly, while some ERCs publish the number of orders they hear and decide annually, they can include more relevant details in this publication and also publish these at shorter intervals. Collecting this data at source would make the identification of litigious issues, which are often proxies for policy problems, easier.

3. Identify areas for policy reform

ERCs should study the precise reasons for disputes that correspond with the litigious issue categories in their states and respond by changing and adapting their regulations to minimise them. The persistence of tariff as the most litigious category is concerning, given that detailed regulations on calculation and imposition of tariff have been enacted by the regulators.

Conclusion

In summary, we find that:

• Between the ERCs under study, Maharashtra, followed by Karnataka, together contribute to the most litigation at APTEL.
• Issues related to tariff determination and restructuring are the most litigated issues at APTEL across ERCs. This is worrisome given the detailed subordinate legislation that govern the regulation of retail and other categories of tariff.
• ERCs are differently situated in their ability to defend their decisions at APTEL and the quality and clarity of their orders. We find that Rajasthan found the most success at APTEL, while Maharashtra had the least.
• Remands lengthen the resolution of disputes and burden regulated entities with legal and compliance costs. This can stymie the growth of the electricity sector, especially in states like Karnataka, since KERC has been asked to reconsider the most number of its decisions when compared to other ERCs.

References

Amicus Populi? A public interest review of the Appellate Tribunal for Electricity , by Vaishnava S, Chitnis A and Dixit S, 2018, Prayas Energy Group

The authors are researchers at TrustBridge Rule of Law Foundation. They would like to acknowledge and thank Natasha Aggarwal, Madhav Goel, Abhinav Hansaraman, Amol Kulkarni, Praduta Singh, Aparna Jha, Varun Soni, Gaurav Aswani, Tarang Rathi and Sumedh Gadham for compiling, collecting, and verifying the data used in our analysis. We would also like to thank Upasa Borah for helping with verifying, cleaning, and consolidating the dataset.