Mains Articles

Reforming the Law Commission [Mains Article]

With the country left without a Law Commission since September 2018, the Law Ministry has initiated the process of setting up the body which gives advice to the government on complex legal issues.
By IT's Mains Articles Team
August 30, 2019

Content

  • Why it was in news?
  • Background
  • How Does the Law Commission Function?
  • Why do we need to reform the Law Commission?
  • What needs to be done
  • Way Ahead

 Reforming the Law Commission 

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Why it was in news?

  • The Ministry of Law has initiated the process of setting up the ‘22nd Law commission’ to advises the government on complex legal issues.
  • The last Law Commission (21st), whose tenure ended on 31st August 2018, submitted reports, under Justice Balbir Singh Chauhan, on key issues such as simultaneous polls to the Lok Sabha and the Assemblies and uniform civil code.

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Background

Early Beginnings

  • In the ancient period, when religious and customary law prevailed, reform process had been ad hoc and not institutionalised through duly constituted law.
  • However, since the third decade of the 19th century, Law Commissions were constituted by the Government from time to time and were empowered to recommend legislative reforms.
  • In 1833, British rulers unified the three presidencies (Madras, Bombay, and Calcutta) and planned to enforce the English common law in the whole of British India.
  • As a result, the first Law Commission was constituted in 1834 under the UK Charter Act of 1833 to codify the laws of British India.
  • Its chairman was Lord Macaulay, who is accredited as the draftsman of the Indian Penal Code (1860) and the Criminal Procedure Code (1861).
  • The Indian Code of Civil Procedure, the Indian Contract Act, the Indian Evidence Act, the Transfer of Property Act. etc. are products of the labour of the first four Law Commissions.
  • Britishers constituted many law commissions (three after Lord Macaulay). However, after the fourth commission completed its work towards the end of 19th century, they did not due to the beginning of an uprising for home rule.

Post-Independence Developments

  • In the eighth year of Independence, the Government of India decided to revive the Law commission again to study, research and report on legal matters.
  • The first commission was set up in 1955, chaired by jurist M C Setalvad, for a three-year term (from September 1, 1955 to August 31, 1958). Since then, it was irrationally decided to form law commission from September 1, of a given year, to the same date three years later.
  • The policy later changed and the commission was always being headed by judges (except in the 5th Law Commission).

How does the Law Commission function?

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  • The Commission’s regular staff consists of about a dozen research personnel of different ranks and varied experiences.
  • The projects undertaken by the Commission are initiated in the Commission’s meetings which take place frequently.
  • The outcome of the meeting, working paper, is then sent out for circulation in the public and concerned interest groups for suggestions. In this process, partnerships are established with professional bodies and academic institutions.
  • Once the data and informed views are assembled, the Commission’s staff organises the information in the report which is written either by the Member-Secretary or one of the Members or the Chairman of the Commission.
  • It is then subjected to close scrutiny by the full Commission in prolonged meetings.
  • Once the Report and summary are finalized, the Commission may decide to prepare a draft amendment or a new bill which may be appended to its report. Thereafter, the final report is forwarded to the Government.

Why do we need to reform the Law Commission?

  • Law commission lacks a constitutional or statutory basis as its ad hoc status requires it to be reconstituted every three years as per the will of government.
  • Except fifth commission, all the other law commissions were headed by retired judges. The commission job requires research-oriented juristic learning, which cannot be acquired merely through judicial experience. Members of the commission are also generally drawn from the judiciary, and the member-secretary is always from the bureaucracy.
  • There is a tendency for the Commission to take up matters that the government is interested in which dilutes the prestige of the Commission and affects its independence.
  • The Commission is overstaffed at the lower levels.
  • Technical expertise and funding of the commission are poor.
  • In 1970s, reports of law commissions led to more changes. Today, a large number of reports of Law commissions are not even considered.
  • The Commission hardly gets any freedom because it is flooded with references. Even High Courts are directing the Commission. Some State Law Commissions exist, but almost none are doing any work. Hence, there is a need to prioritise
  • New technology for library resources, etc., has not been made available to the Commission. Even when it comes to law clerks, the government is very reluctant to support the Commission.

What needs to be done

Give Statutory Status

  • The law commission must be a statutory Commission to ensure the strength and independence of the body. If it becomes statutory, it must be answerable only to Parliament, and not to the Executive. In most countries, particularly western democracies, Law Commissions are statutory bodies.
  • If government can provide constitutional status to National Backwards Commission and overhauled the governing law of National Human Rights Commission, then it should think of statutory status for Law Commission as well.

Continuity in Law commission

  • Today, every Commission has a three-year term. Hence, it is important to ensure continuity without having any gap.

Impartial appointment

  • At present, some members of law commissions are appointed for personal favours. Hence, the members of the Commission should be appointed only in consultation with the chairperson.

Exclusion of law secretary

  • The inclusion of the law secretary and secretary of Legislative Department (who are presently ex-officio members of the Commission), affects independence of commission. Hence, they should not be party to the Commission.

Proper funding

  • It needs sufficient funding, proper resources, tie-ups with law institutions and more assistance and support.

Way Ahead

  • The law commission is the oldest amongst the national-level parastatal bodies and have completed 65 years of its existence.
  • The institution itself does not need any major changes as it is guided by the bright minds of the country. However, the structural reforms are must and should not be delayed.
  • If the commission has to work without regard for extra-legal and political considerations it must have a governing statute defining its powers and responsibilities, and limitations.

 

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