Above: Civil court lawyers protesting against the Advocates (Amendment) Bill 2017, in Ranchi (file pic)/Photo: UNI
Though the Law Commission’s voluminous reports are not binding on the government, it has suggested onerous and far-reaching reforms to the Indian legal system
~By Vrinda Agarwal
When it comes to legislative reform and progress, several institutions and persons line up to claim credit, some deservedly so, but others not so much. One name that does not always receive due credit is that of the Law Commission of India. Far from the gaze of the media and onlookers that crowd disruptive legislative benches and loud courtroom alleys, a small group of individuals housed in Delhi’s popular Khan Market is quietly going about its task of suggesting reforms to the labyrinthine chaos that constitutes the Indian legal system. Armed with the motto “Reforming the law for maximising justice in society and promoting good governance under the rule of law”, the role of the Law Commission in the context of Indian polity can be described as far-reaching.
The first Law Commission was constituted in 1834 under the UK Charter Act of 1833 for the purpose of codifying the laws of British India. Its chairman was none other than Lord Macaulay, accredited as the draftsman of the Indian Penal Code (1860) and the Criminal Procedure Code (1861). This early work carried out by the first Law Commission, although met with resistance from the British government of the time, was perhaps a precursor of things to come. Macaulay’s tenure was followed by three more Law Commissions.
Soon after Independence, the government established the first Law Commission of independent India in 1955 with MC Setalvad as its chairman. Historians suggest that this decision was an outcome of repeated demands, in and outside Parliament, for the appointment of a Law Commission to recommend revision and updating of the inherited laws to serve the changing needs of India.
It is, therefore, quite remarkable that an institution born out of popular demand, which till date lacks a clear constitutional or statutory basis, has survived the onslaught of time. This institution’s ad hoc status requires that it be reconstituted every three years by an order of the government. Currently, it is the 21st Law Commission that is in session. It was constituted on Sept-ember 14, 2015 and will be effective till August 31, 2018. Its terms of reference, inter alia, include review and repeal of obsolete laws, examination of laws which affect the poor, review of the judicial administration system to ensure that it is in congruence with the times, examination of existing laws in the light of the Directive Principles of State Policy and suggesting ways of improvement and examination of laws to promote gender equality.
Justice Balbir Singh Chauhan, a former judge of the Supreme Court, was appointed as chairman of the 21st Law Commission in March 2016. It also has three full-time members: Justice Ravi R Tripathi, ex-judge of the Gujarat High Court; Dr S Sivakumar, Indian Law Institute professor, and Dr Sanjay Singh, former Secretary in the Legislative Department. Three part-time members are also inducted. Unfortunately, some members’ appointments were marred by allegations of political favouritism and all the appointments attracted criticism due to delay on the part of the government in finalising appointees.
Notwithstanding the delays in its constitution, the Law Commission has submitted 13 reports till now. These include criminalisation of “hate speeches”, outlawing of “torture”, regulation of the legal profession and revamping the bail system. On the issue of hate speech, the Commission while recognising its delicate dynamic with the right to freedom of speech, recommended that such acts should be made a criminal offence. In a similar manner, its report on outlawing of torture delved deep into its history and prevalence, and proposed ratification of the UN Convention against torture and enactment of an anti-torture domestic law. To give effect to this recommendation, the Commission proposed a draft Bill titled “The Prevention of Torture Bill, 2017” providing for strict punishment to the perpetrators of such acts. This need for stringent punishments was also reflected in the Commission’s report pertaining to food adulteration which, among other things, recommended life imprisonment for those convicted of manufacturing and selling adulterated food.
“Make the Law Commission a statutory body”
JUSTICE AJIT PRAKASH SHAH, former chairman of the Law Commission of India, tells VRINDA AGARWAL about the hindrances affecting the functioning and productivity of the Commission and advocates that it be made a statutory body with complete autonomy.
How crucial has the role of the Law Commission been in steering the process of legal reforms in India?
The idea of Law Commissions has existed since colonial times. After Independence, the Commission had many notable persons such as MC Setalvad, VK Krishna Iyer and PB Gajendragadkar. It plays a crucial role—from suggesting new laws to changing outdated colonial laws and updating them to present times. Periodically, the Supreme Court also decides matters under Article 142 because of which changes need to be made. The Commission steps in then. India is also a signatory to many treaties under which we have statutory obligations which the Commission has worked to ensure. Occasionally, the Commission also takes up matters suo motu. For example, the 20th Commission worked on leprosy affected persons and their treatment in society, which it recognised as a human rights issue. The operating principle in the Commission’s work is that our laws need to be dynamic, and cannot remain static. The times have changed. Our laws need to change with them.
The legislative process in India is fraught with delays and roadblocks, often due to political compulsions. Does this lead to lack of serious review and proper consideration of Law Commission reports?
This is particularly acute in present times. It is mostly because Parliament is not functioning smoothly. Many times, things get stuck, there are not enough discussions. Parliamentary Committees are constituted but their functioning is not satisfactory because the members predictably go along party lines. Political compulsions are always there. All these compound the extent and manner in which Commission reports are treated. I feel that reports in earlier times led to more changes. These include the Criminal Procedure Code of 1973 and labour laws of the 1970s, which came about largely due to the work of the Commission. Today, a large number of reports are not even considered. It does not help that the Law and Justice Ministry, which deals with the Commission, is not fully equipped to deal with the work. Significantly, of the 19 reports submitted by the Commission under my chairpersonship, only four have been converted to law. While I am particularly happy about the arbitration amendments and the commercial courts law going through, I also feel that there is not much dialogue between the government and the Commission on the fate of its reports. This is clearly not a satisfactory position.
In recent years, the Law Commission has been besieged with more and more references from the government and courts. What challenges does that create in terms of resources, funding, prioritising of references, etc.?
There is a need to prioritise references. 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. Some of the references that the Commission receives are of very low priority or sometimes misconceived. Lately, there is another tendency, which is disturbing, for the Commission to take up matters that the government is interested in. But it ends up diluting the prestige of the Commission and affects its independence. There are not enough resources, as well. The Commission is overstaffed at the lower levels, and is bottom-heavy. Technical expertise is limited. Funding is rather poor. For several years, the library especially has been neglected. New books have not been bought. New technology for library resources, etc., has not been made available to the Comm-ission. Even when it comes to law clerks, the government is very reluctant to support the Commission. In spite of all these limitations, it has definitely kept at it, with over 250 reports submitted to the government on a range of diverse issues.
What institutional reforms are necessary to ensure that the Law Commission continues to discharge its role in a meaningful way?
Firstly, it must be a statutory Commission. This is essential to ensure the strength and independence of the body. In most countries, particularly western democracies, Law Commissions are statutory bodies. Further, it is important to ensure continuity. Today, every Commission has a three-year term, and every time, there is a gap in the constitution of the Commission. If it becomes statutory, it must be answerable only to Parliament, and not to the Executive. The members of the Commission should be appointed only in consultation with the chairperson. At present, some appointments are made for personal favours. It is a sorry state of affairs. Secondly, the presence of the law secretary and secretary, Legislative Department (who are presently ex-officio members of the Commission), affects its independence. Their inclusion was, unfortunately, accepted by a past chairperson, and was done fairly recently. Now, it has become the norm. I believe they should not be party to the Commission. Thirdly, it needs sufficient funding, proper resources, tie-ups with law institutions and more assistance and support. Autonomy is there, but complete autonomy is necessary in the working of the Commission. Critical aspects of its functioning, such as funding, are controlled by the ministry, and it is a bureaucratic way of functioning. The institution effectively gets treated like some sort of department of the Law and Justice Ministry. All this should change so that the Commission becomes more relevant and effective.
Several reforms were recommended in the Commission’s reports on the Advocates Act of 1961 and bail-related provisions in the Code of Criminal Procedure, 1973. The former also brought into focus several ills plaguing the legal profession and consequently, attracted undue ire from the Bar Council of India. In the latter case, the Commission highlighted how the existing bail system is inadequate and inefficient and took cognisance of the plight of the poor in securing bail. With the objective of reforming the judicial system, the Commission also presented a report titled, “Assessment of Statutory Frameworks of Tribunals in India” which set out a detailed step-by-step procedure for improving the working of the tribunal system in the country.
As the 21st Law Commission nears the end of its tenure in August 2018, Justice Chauhan and his team have a most crucial task—examining the feasibility of a Uniform Civil Code, and holding of simultaneous elections for the Lok Sabha and state legislative assemblies. In an interview to India Legal, Justice Chauhan said that the most challenging aspect of their work is “addressing the interests of all stakeholders and reconciling conflicting rights”. But this opportunity to interact with a diverse group of stakeholders is what makes the work, he said, most enriching.
Justice Chauhan said that once the Commission receives a reference from the government or courts, the first step involves creating a skeleton of the relevant issues, followed by identification of specialists competent to advise on the subject. Thereafter, public notices are issued, inviting suggestions and opinions which must reach the Commission within a specified timeline. All responses are studied, and select stakeholders are sometimes invited for a discussion on the issues and concerns raised by them. The reference material includes previous Law Commissions’ reports, parliamentary debates, case-law precedents, commentaries of jurists, international legal conventions and best practices. Internally, sub-committees are formed to work on different projects that are being simultaneously looked into. At the end of the mammoth exercise of data collection and analysis, a comprehensive and voluminous report is submitted to the Ministry of Law & Justice for review and consideration.
Of the 13 reports submitted by the 21st Law Commission, only a handful have been acted upon and it may well be a few decades before some of the recommendations are looked into and implemented. It’s a known fact that the Law Commission’s recommendations are not binding on the government.
None of this has impacted Justice Chauhan’s optimism about the relevance of the institution, and the valuable literature it has been creating for future reference by courts and legal academia. He said the institution itself does not need any major change or improvement as “it is not the institution but who is manning it that makes all the difference”.
Perhaps his optimism isn’t misplaced at all. But in a pluralised society like ours, various factions can impede the proper functioning of any institution. However, under the right custodians, the Law Commission’s reform process can continue in an unbiased manner.