[In-Depth] Law Commission of India – Background, Functions and Major Reports

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The Government recently informed the Lok Sabha that no time limit has been drawn for the appointment of chairperson and members of the newly-appointed Law Commission. The term of the 21st Law Commission ended on August 31, 2018, and the constitution of the 22nd law panel was approved which has been effective from February 2020. However, since then, the newly-formed board has been without a chairperson and full-time and part-time members. The Government also clarified that there is no proposal to turn the advisory body into a statutory one.

About

  • The Law Commission of India is an independent body set up by a government to undertake research in law and review existing laws in India for making reforms therein and enacting new legislation.
    • It performs this function on a reference made to it by the Central Government or suo-motu.
  • The Law Commission of India falls under the Executive branch. 
    • It is an advisory body of the Ministry of Law and Justice.
  • It has no mention in any Article of the Constitution of India and therefore, it is a non-constitutional and non-statutory body.
  • Usually, each Law Commission is constituted for a term of three years and thus it is not a permanent body.
    • It is formed on an ad hoc basis, that is, temporarily.

Background

  • The introduction of laws to govern states and citizens began a hundred centuries earlier.
  • It has been around three hundred years now since the law reforms became part of Indian history. 
    • However, the ancient systems lacked institutions for making law reforms.
  • It was during the British era that the idea of making the law process institutionalized gained some momentum.
  • The first Law Commission of pre-Independence India was constituted in 1834.
    • It was set up under the Charter Act of 1833 and under the chairmanship of Lord Macaulay who is also known for his recommendation of the Indian Penal Code, 1860.
  • The next three Law Commissions of pre-Independence India were established in 1853, 1861 and 1879 respectively.
    • The major reports and products of these four Law Commissions were the Indian Penal Code, the Code of Civil Procedure, the Indian Evidence Act, the Indian Contract Act and the Transfer of Property Act.
  • Law reform has been a continuous process in India and thus it continued in the post-Independence era as well. 
  • After Independence in 1947, there were widespread demands for establishing a Central Law Commission to recommend revision and updating of extant laws.
  • The Government of India set up its first Law Commission in 1955 headed by Motilal Chimanlal Setalvad (the first Attorney General of India) and since then subsequent Law Commissions have been constituted from time to time.
  • The 21st Law Commission of India was constituted on 1st September 2015 headed by Balbir Singh Chauhan for three years, the term of which ended on 31st August 2018.
  • The 22nd Law Commission was constituted on 21st February 2020 for a term of three years.

Structure

  • The Law Commission mainly consists of:
    • One Chairman – usually a retired judge of the Supreme Court.
    • One Member Secretary.
    • One Permanent Member – usually a retired judge of either a High Court or the Supreme Court.
    • Two part-time Members, and
    • Two ex-officio Members.
  • Although the composition usually remains the same, the Commission may undergo some changes in its structure depending on the needs and orders of the Government.
  • The majority of the members of the Law Commission are legal experts from various fields.
    • Some may be retired judges of the courts while others can be people with command in legal knowledge.

Role

  • The Law Commission of India plays a crucial role in legal reform and policy formulation for the justice delivery system by performing the difficult job of studying and researching laws.
  • The Commission, led by brilliant legal minds such as M.C Setalvad, Justice H.R Khanna, and Nani Palkhivala, has suggested various modifications that were crucial.
  • Some of the remarkable efforts of the Commission include the fast-track court system, the development of commercial courts, electoral changes, the adoption of anti-defection legislation, and the alteration of various legal provisions of criminal and civil laws.
  • It not only helps the justice system to decimate the delay it faces but also ensures cheaper litigation and early disposal of cases.
  • In a nutshell, the Law Commission thus helps fill the gaps in the Indian legal system and reform the disabilities ailing the system.

Functions

  • It is conferred with the responsibility of undertaking extensive research and studying matters related to the law referred to it either by the Central Government or suo-motu.
  • It also reviews the existing laws in the country for their improvement and suggests required reforms to be carried out by the Government on those matters for their productive results.
    • It may suggest the repealing of obsolete or irrelevant laws.
  • It also studies and researches several matters concerning the nation and problems faced by it and then puts forward the results before the Government for enacting new legislation.
  • It carries out such reforms continuously that may be required to reduce the high cost of litigation incurred by people and state, eliminating the delay in justice delivery and making procedures easier to shorten the time taken.
  • It examines the existing laws in the light of Directive Principles of State Policy (DPSP) and suggests ways of improvement and reform. 
    • It also suggests legislation that might be necessary to attain the objectives of the Preamble of the Constitution of India
  • It revises the Central Acts of general importance to simplify them and remove any anomalies, ambiguities or inequities present in them. 
  • It also takes all such measures as may be necessary to harness law and the legal process in the service of the poor.

Reports

  • As mentioned earlier, the Law Commissions of India have made remarkable contributions to law formulation in the country through their in-depth and dedicated research as well as specialized and well-thought suggested reforms and reports.
  • To date, 277 reports have been submitted by various Law Commissions since its very first inception in 1955.
  • The reports and recommendations made by the Law Commission are non-binding, that is, it is up to the Government’s discretion to accept or reject the recommendations made by the Commission.
  • However, it is estimated that about 45 per cent of its recommendations have been acted upon or made into law till now.
  • Some of the latest Reports submitted include:
    • Report No. 277
      • Title – “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”.
      • Suggested the legal remedies in wrongful prosecution.
    • Report No. 276 
      • Title – “Legal Framework: Gambling and Sports Betting Including in Cricket in India”.
      • Discussed the problem of gambling in India and recommended reforms on this major issue.
    • Report No. 275 
      • Title – “Legal Framework: BCCI vis-à-vis Right to Information Act, 2005”.
      • Discussed whether the Board of Control for Cricket in India (BCCI) should fall under the purview of the Right to Information Act, 2005.
    • Report No. 274 
      • Title – “Review of the Contempt of Courts Act, 1971”.
      • This report dealt with the Contempt of Court Act, 1971.
    • Report No. 273 
      • It dealt with the issue of the “Implementation of the United Nations Convention against Torture”.
  • Some other major burning issues of the country have also been discussed and reforms were suggested. These include the Uniform Civil Code (Report No. 271), Human DNA Profiling, Registration of Marriages (Report No.270) and so on.

Twenty-first (21st) Law Commission

  • It was the most recent to be constituted that served from 2015 to 2018.
  • It was headed by Balbir Singh Chauhan, a former Supreme Court judge.
  • It provided the Government with 15 reports, Report No. 277, titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”, being the latest.
  • It also studied issues related to human DNA profiling, hate speech, a review of contempt of court, forced marriage registration, the BCCI, sports betting, etc. and submitted reports.

Twenty-second (22nd) Law Commission

  • It was constituted on 21st February 2020 for three years.
  • Structure
    • A full-time Chairperson.
    • Four full-time Members (including Member-Secretary).
    • Secretary, Department of Legal Affairs as ex officio Member.
    • Secretary, Legislative Department as ex officio Member; and
    • Not more than five part-time Members.
  • Terms of reference (functions)
    • In addition to the functions mentioned above, the 22nd Law Commission is conferred with the duty to look into the issues of:
      • Law and poverty.
      • Keeping the system of judicial administration under review to ensure that it is responsive to the reasonable demands of the times and secure.
      • The existing laws related to promoting gender equality and suggest amendments wherever required.
      • The impacts of globalization on food security, and unemployment and recommend measures for the protection of the interests of the marginalised.
      • Others.

Issues

  • Status
    • The recommendations of the Commission are not implemented often given its non-statutory or non-constitutional status.
    • Even if some of the recommendations are implemented, they are fewer in number.
  • Appointment
    • The Government has often been accused of practising favouritism while appointing members to the body. 
    • Furthermore, there has been a delay in the appointment of the Chairperson and other members of the Commission as it has been in the case of the 22nd Law Commission. 
      • It hinders the progress of the law-making process in the country.
    • The gap between the constitution of two consecutive Law Commissions is usually too long. For instance, the tenure of the 21st Law Commission ended on 31 August 2018 and the 22nd Law Commission got approval in 2020.
  • Lack of quality research
    • It has been observed in recent times that the Commission’s report is less detailed because of a lack of a research backup team.

Way Forward

A wide range of hurdles has been impending the Law Commissions from exercising their full potential. Therefore, there is a need to empower the Commission through various positive steps. Some of these steps could be: changing its status from an advisory body to a statutory or constitutional one, formulation of laws that would define and govern its responsibilities, powers and functioning, and allocation of adequate funds to ensure quality research by experts having in-depth knowledge on law subjects, especially juristic ones. There is also a need to reduce the gap between the constitution of two consecutive Commissions to ensure continuity. All these steps may help the body to stay relevant in the current critical legal scenario.

Practice Question

Q. How relevant is the Law Commission of India in the present Indian scenario? Discuss.

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