Reforming the Law Commission
The Law Commission of India is a non-constitutional, non-statutory body constituted by the Government of India from time to time. It was originally constituted in 1955 and is re-constituted every three years.
The Law Commission’s origin can be traced to British times. When the British rulers unified the three presidencies of Madras, Bombay and Calcutta under a centralised dispensation and planned to enforce the English common law in the whole of what they called “British India”.
The Charter act of 1833 provided for the establishment of Law commission to translate their plan into action they constituted many law commissions. The work of these bodies transformed India into a common law country. The fourth commission completed its work towards the end of 19th century, the rulers, sensing the beginning of an uprising for home rule, did not continue the exercise.
The first commission after independence was set up in 1955 for a three-year term. From then the law commission has been constituted for a term of three years.
Functions of the Law Commission
- On a reference made by the Central Government or suo-motto undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
- Undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in the cost of litigation etc.
- Identification of laws which are no longer relevant and recommending for the repeal of obsolete and unnecessary enactments.
- Suggesting enactment of new legislation as may be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble of the Constitution.
- Considering the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law & Justice.
- Preparing and submitting to the Central Government time to time reports on all issues, matters, studies and research undertaken by it and recommending in such reports for effective measures to be taken by the Union or any State.
- Performing such other functions as may be assigned to it by the Central Government from time to time.
Issues with the Commission
Composition of the Commission
The law commission has no fixed composition, no defined eligibility criteria for its chair and members, and no set functions. Everything rests on the government’s will. The terms of reference are specified afresh each time it is reconstituted.
Tenure of the Commission
The first commission was set up in 1955 for a three-year term. It assumed charge on September 1 that year and vacated office on August 31, three years later. From then three-year cycle from September to August was irrationally adopted as the fixed term for the commission for all time to come irrespective of when a new commission was constituted and entered the office.
Commission of Judges
The commission’s job requires research-oriented juristic learning. This is not essentially the outcome of judicial experience. But the commission has been a haven for retired judges.
The first law commission after independence was headed by distinguished jurist M C Setalvad and even the chairman of four commissions in british era were were eminent jurists, not judges.
The policy was later changed and the commission has always been headed by judges with the sole exception of the fifth commission which was headed by a non-judge (the first law secretary K V K Sundaram). Even the members of the commission are also generally drawn from the judiciary.
The Supreme Court in the case of Sarala Mudgal had suggested that the issue of reform of Muslim law be entrusted by the government to the Law Commission which should work on it in consultation with National Minorities Commission. But it was said that “What faith will the minorities have in the pronouncements of an all-Hindu Law Commission?”
Hence 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.
Time for Reform
The last Law Commission had gone out of office a year ago, on August 31, 2018. Before constituting the next commission the government must look at formulating suitable legislation which would determine the composition, tenure, functions and work procedure of the Law Commission.
The 22nd Law Commission must be a predominantly jurists’ commission, not a retired judges’ collective with a sprinkling of legal scholarship and jurisprudential expertise.