The article is written by Naman Sherstra from the Department of Law, University of Calcutta. The role of the Law Commission of India in shaping the legal provisions in India has been discussed in the article.
Law is dynamic which changes according to the change in time and society. The Law Commission of India is a legal think tank of the Government of India which provides recommendations for the changes that need to be brought in the legal provisions. Since independence, the law reforms have been steered by the great legal minds like M.C Setalvad, Justice H.R Khanna, Justice Gajendradhakar, and so on. The credit of reforms in the Indian legal system and the judicial system goes to the judges and the presiding officers of the Law Commission of India. However, as the body has no independent status, the recommendations are subject to the approval of the Government of India. Sometimes, the Commission has been very critical against the policies of the executive. The critical approach provides a check on the arbitrary actions of the government. After 73 years of Independence, the question arises how effective the Law Commission has been in reforming the Indian Legal System? We shall analyse all aspects in a broader way to get the answer to this question.
Composition, power and function
The Law Commission of India is an executive body constituted only after the order of the Government of India for a particular term. It has neither any statutory or constitutional status. The Law Commission of Independent India was constituted first in the year 1955 for a term of 3 years. Since 1955, twenty-one Law Commissions of India have been constituted till today. The Law Commission of India works as an advisory body of the Government of India.
The Law Commission of India is headed by the retired judge of the Supreme Court or the Chief Justice of the High Court. It has four full-time members, including a member-secretary and Chairman. The legal and legislative secretaries of the Ministry of Law and Justice are the ex-officio members of the Commission.
The Law Commission either on the order of the Government of India or suo moto researches any law for any kind of reforms and enactment of legislation. It also undertakes any kind of research recommending the reform in the functioning of the judicial system.
Role of Law Commission in reforming the law
The Law Commission of India plays a very significant role in reforming the law. Led by genius legal minds such as M.C Setalvad, Justice H.R Khanna, and Nani Palkhivala the Law Commission has recommended numerous changes. The fast track court system, expansion of commercial courts, electoral reforms, the introduction of anti-defection law, and the amendment to several legal provisions of criminal and civil laws are some of the landmark works of the Commission. Mostly a retired judge of the apex court or retired Chief justice of High Court is considered for the position of chairmanship in the Law Commission. The appointments are made by the Government of India where most of the time the allegations of “favouritism” have been slammed on the government. Issues like non-implementation of recommendations of the commission, non-statutory status and lack of research back-up team in the recent time which lands the commission’s report in less depth, lesser percent implementation of the made recommendations, are hurdles which hamper the efficiency of the Law Commission of India.
Lacunas cited by the Law Commission in the judicial system
The Law Commission of India, with changing dimensions of law, has cited several lacunas in the judicial system and recommended for its reforms. There are some of the major lacunas cited by the Law Commission of India since its post-independence works.
Delay in justice delivery system
The implementation of new legislation and the increase in awareness led to the increase in the cases in the courts which are the factors for the “delay in justice”, however, delay in justice may lead towards a miscarriage of justice and increase the cost of litigation. There is a legal maxim called “Justice delayed is justice denied”. However, the speedy trial never means hasty dispensation of justice without considering the legal provisions and the merits of the case. The 14th report of Law Commission of India 1958, 27th report of Law Commission of India 1964, 58th Law Commission of India report 1974, and 121st Law Commission of India report 1987 have drawn the attention of the government towards the delay in dispensation of justice and made several recommendations to combat with it –
- Increasing the power of magisterial courts to settle important matters in the district and sessions courts.
- Disposing the criminal and civil cases within a specific time frame.
- Increase in the strength of judicial officers.
- Industrial disputes shall be resolved through collective negotiation and Alternate Dispute Resolution mechanisms.
- Increase in retirement age of the judges from 62-65.
- Constituting a single body “National Judicial Service Commission” for the appointment of subordinate court judges.
Inadequacy of law officers and administrative staffs
The inadequacy of law officers including the administrative staff is one of the important flaws that hampers the speedy and fair trial. The Law Commission of India in its 27th report 1964 “and” 213th report 2008, has cited the inadequacy in the number of judicial officers which is concerned with the number of arrear cases pending in several courts of India. Several recommendations were made to tackle this problem-
- Increase in the strength of the judicial officers and their pay scale.
- The appointment of administrative staff in the courts to keep pace with the work efficiently.
Need for reform in the criminal justice system
The Law Commission of India in its 141st report 1991 cited that the delay in justice is caused by the administration of the criminal justice system where the cases are dismissed only on the ground of non-appearance of the complainant. Similarly, in the 142nd report 1991, the commission sought to infuse life into Section 330, Code of Criminal Procedure, and Probation of Offenders Act. The commission aimed to provide a speedy, cost-effective, and fair trial to the people to hold their faith in the justice system. The commission based on their research made certain recommendations to the government seeking amendment in the procedural criminal laws. The major recommendations made were as-
- Amendment in Section 256 of the Criminal Procedure Code where the case can be restored wherein the accused has been acquitted, for the reasonable cause of non-appearance of the complainant. For the application of such purpose, a new Section 482A needs to be introduced.
- Re-examination and redefinition of the cases under various laws in such order such that the crimes that take a long time and cost shall be dealt speedily at different levels.
- Plea bargaining should be introduced to dispose of the huge arrears of criminal cases. Pre-trial negotiations are needed to be included in the criminal justice system where the charge of the accused shall be reduced on admitting the commission of a crime. This process is referred to as “charge bargaining”. Research data states 94 to 95% of the convictions in the United States are the result of plea bargaining.
High arrears of cases in the Indian courts
The pendency of cases in the courts is one of the major problems of the courts. Data served by National Judicial Data Grid shows that 33 million cases are pending in Indian courts. Several Law Commission reports have tried to draw the attention of the Government of India towards this problem. The Law Commission of India its 77th report in the year 1978, 124th report in the year 1988, 221th report in the year 2009, and 229th report in the year 2009 has suggested the measures to combat with the arrears of cases in the “subordinate courts, High Courts and the Supreme Court”.
Major recommendations made to the Ministry of Law and Justice
The Law Commission of India has made several important recommendations to the Ministry of Law and Justice to bring the reforms in the Indian judicial system. Some of the important recommendations made to the ministry are as follows-
Introduction of the Fast track Courts
The increasing arrears of the cases and delay in Justice led the Law Commission to recommend the setting up of Fast track Courts (hereinafter FCTs) in the years 2003 and 2009. The 213th report in the year 2008 recommended setting up of magisterial courts with special high tech facilities. Check bounce cases under Section 138 of the Negotiable Instruments Act and such commercial cases accounted for a major part of the arrears at that period. The commission in its reports mentioned the central government to provide directions to the state governments for setting up of fast track courts in the country. The 11th finance commission of India recommended to set up 1734 fast track courts for expeditious disposal of cases. These FTCs were supposed to exist until the year 2005. Later due to lack of finance, only 581 FTCs were functional across India till March 2019. There were certain states in India like M.P and Karnataka where no FTC was functional at that time.
Establishment of an additional bench of Supreme Court
The 11th Law Commission in its 125th report in the year 1988 recommended to set up a regional bench of the Supreme Court of India. The reasons cited for setting up such kinds of courts were the long-distance covered by the litigant hailing from the northeastern and southern states of India. Setting up the regional appeal benches in the east, west, and southern parts of India shall serve as a cost and time-efficient method for the litigants as most of the appeal matters after High Courts reach the Supreme Court. However, the government didn’t accept the recommendation at that time.
Recently, in September 2019 the Vice President of India “Shri Venkaiah Naidu” had made recommendations to the Law Commission of India to bifurcate the apex court into two parts- one constitutional bench that the Delhi one shall be treated and another appeal benches to be set up in four regions across the country.
Need to increase the Judicial officers.
The Law Commission in its several reports provided the suggestion for an increase in the number of the judges to deal with the pendency of cases. The 27th report in the year 1964, 120th report in the year 1987, 125th report in 1988, 229th and 230th Law Commission report in 2009 made several recommendations for the increase of judges in district courts and the High Court. The 121st report in 1987 made recommendations to constitute the “National Judicial Service Commission”, an individual body for the appointments of judges in the country. The government of India passed the NJAC bill in the year 2014 for the appointment of judges. However, the Supreme Court of India in the year 2015 declared it unconstitutional on the basis of risk of being caught in the “web of indebtedness” towards the government.
Trigger up the ADR mechanism
The Law Commission of India in its 213th report 2008, recommended for triggering up the alternate dispute resolution mechanism for faster disposal of civil cases. Arbitration, mediation, conciliation, are the ADR mechanism through which the disposal of cases can be done outside the courtroom. The commission further provided for setting up Lok Adalats and opening of administrative courts in the village and block levels to settle the cases in speedier methods. The 221st report in 2009 also recommended encouraging the parties to shift towards the ADR mechanism for the faster disposal of civil matters
Electoral reforms and disqualification mechanism
The Law Commission of India in its 244th report in the year 2014 proposed the disqualification of the candidates based on criminal background and repercussions on filing a false affidavit. The commission also recommended the grounds on which the disqualifications can be made along with the introduction of the laws where the criminalization of the politics can be curbed. The commission also recommended reforms for the framing of charges.
The Law Commission of India in its 255th report introduced recommendations of electoral reforms. The reforms include the proposal for introduction of Election Finance, Anti defection laws, proportional representation, strengthening the Election Commission of India, the introduction of NOTA.
The 20th Law Commission of India in its 262nd report recommended abolishing the death penalty provision from the criminal justice system. The commission suggested that the provision of the death penalty should be only made applicable for terror-related cases like waging war. It was observed that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. However, the two government members who were part of the commission that time supports the retention of the “death penalty”. In the last report, the commission reported having debated over the abolishment of the death penalty provision in the upcoming future.
Amendments in different legal provisions
The Commission with the passage of time sought for the amendment of various laws. The overview of such kind of recommendations are given below-
Code of Criminal Procedure
The Law Commission of India sought amendment in the Code of Criminal Procedure, 1974.
- In the 141st report 1991, the Law Commission of India recommended for the amendment of Section 256, of the Criminal Procedure Code where a dismissed case can be restored on the reasonable non-appearance of the complainant wherein the accused was acquitted.
- A similar provision of Section 482 was sought to be amended concerning the acquittal of the accused on the ground of absence of complainant should be evaluated so that the interest of the prosecution is not defeated.
- 154th report in 1996, the Law Commission recommended for the amendment in Section 437 of the Criminal Procedure Code. In a similar report, the commission suggested the insertion of Section 436A for the release of undertrial prisoners in the jail. Amendment in Section 162, Section 163, Section 164 of the code was also recommended as the hostility of witnesses being the reason for the delay in adjudication of cases.
- The Commission in its 229th report in the year 2009 sought for the amendment in Sections 378, 397 and 401 of Code of Criminal Procedure, 1973 as against the increasing arrears of cases.
- In the 233rd report in the year 2009, the Law Commission of India sought the amendment in Section 249 and Section 256 of the Criminal Procedure Code on the line of the Civil Procedure Code where the case of the plaintiff can be restored on the grounds of reasonable absentia in appearance. In a similar “report”, Section 309 was sought for amendment where it was found that adjournments hamper the time and cost of the courts and the cost must be made obligatory to the party seeking adjournments and such cost should be awarded to the opposite party under the said section.
Indian Evidence Act
- Amendment in Section 65A and 65B of the act including the electronic records.
- Taking DNA as the material of evidence is totally upon the discretion of the court.
- Section 23 and Section 13 of the act was analyzed and several recommendations about it were made.
- Insertion of Section 53A for the protection of women at the workplace.
Recommendations turned into law by the Government of India
The pace of the legal reform in the judicial system depends on the work output of the Law Commission of India. The implementation of the recommendation of the Law Commission of India is also one of the important factors for the reforms to be brought in the legal system. In the United Kingdom, an article report states that approximately 70 percent of the laws recommended by the Law Commission of UK are implemented by the Parliament since 1965 when the Commission came into existence. However, in India merely half of the recommendations are implemented by the Government of India. A data stated by Ajit Prakash Shah, Chairman of the 20th Law Commission shows that approximately 45 percent of the recommendations made by the commission so far now have been either implemented or made into laws. Although the Law Commission is an ideologically independent body, it sits in the domain of the Ministry of Law and Justice. Sometimes it has given excellent ideas to the government but the government has destroyed it due to the politics and the working system of the bureaucracy. The National tax tribunal, an independent body, was brought by the government through the parliament which reduced the burden of tax cases from the High Courts and vested the power to the tribunal to adjudicate such matters. However, the apex court declared it unconstitutional because it encroached the exclusive domain of the Superior Courts of record in India.
The recommendation of the Law Commission has no binding value. It lies over the discretion of the Ministry of Law and Justice that whether it will implement the recommendations or reject it. Several times, the Law Commission has recommended important issues for implementation but the government has not taken it seriously. For instance, in 1988 the 11th Law Commission had recommended the splitting of the apex court in two parts, one the constitution bench and another appellate part constituted in four regions of India. The government didn’t care about it and recently with an increase of pressure on the apex court due to high arrears of cases the Vice President in the year 2019 recommended for the same what the Law Commission had suggested in the year 1988. There are several good suggestions which are today the part of our judicial system. The Fast track courts, Commercial Courts, Electoral reforms, different tribunals, are the brainchild of the Law Commission.
Law Commission: a check on the government policies
The Law Commission being ideologically independent and working under some of the fierce and outspoken ex-judges has been critical to the policies and the action of the executive towards the Indian Judiciary. The 21st Law Commission headed under the Chairmanship of Justice B.S Chauhan presented a consultation paper on one of the most controversial issues of the contemporary era “sedition law” and the arbitrary action of the government towards arresting the university students. The consultation paper recommended the government to rethink the sedition laws under Section 124A of the Indian Penal Code. The paper stated that sedition laws were formulated in the IPC by the British government in Colonial India. The United Kingdom had abolished the sedition laws 10 years back but in India, it has become a tool to stifle the voices of the students, activists, and journalists. The consultation paper was co-incidentally published a day after when the supreme court slammed the government on arresting 5 activists stating that “dissent is the safety value of democracy”. The paper added that the time has come when the government needs to reconsider the draconian law and either abolish it or bring changes in it. In a democracy singing from the same songbook is not the benchmark of patriotism. Everyone has his way to show affection towards the nation.
The Law Commission’s paper showed that the commission has been critical against the government’s policy if it exercises arbitrarily.
Strengthening the Law Commission – Need of the hour
The work of the Law Commission of India is considered as a national service. The eminent legal luminaries like Nani Palkhivala and M.C Setalvad had sacrificed their job and worked for a year in the commission. The Law Commission is facing several hurdles in its proper functioning which needs to be redressed soon.
The Law Commission of India is a national level parastatal body working sincerely for the legal development. However, it has neither any definite composition, definite appointment eligibility for the chairperson, secretary, and other members nor any fixed functions. Everything depends on the discretion of the government. The terms of reference are constituted every time as if it is an ad-hoc body. Being such an important body working to reform the legal provisions and judicial system, it is a matter of shame that such a body is treated casually whereas the national commission for Scheduled caste, Schedule tribe, and backward class are regulated by the Constitution of India. There is a permanent charter for the rest of National Commissions for women, children, minorities, and “safai karamcharis”. The judges from the apex courts and high courts are generally recruited as the chairman of the Law Commission, by the government of India. The Commission which has been headed by great jurists like Nani Palkhivala and H.R Khanna is today treated as an unimportant body by the Government. The Government needs to provide it a statutory status setting the regulation for appointment and function of its penal members.
Inadequacy of Finance
The part-time members of the Law Commission work as a service to the Law Commission for the legal reforms without any kind of official payment. The full-time officer bearers get very low remuneration as approx 1 lakh rupees per month. The total financial budget of the Law Commission of India for the 2013-14 session was 13.61 crore (2014 data). It is quite tough to manage for a research institution to manage with such a low fund. The research work requires a huge fund for the remuneration of members, travel expenses, and other things. The Government should consider this problem and increase the budget of the Commission for its smooth functioning.
Implementation of the recommendations
The implementation of the recommendations provided by the Law Commission is still a major issue. The percentage implementation of the recommendations still stands 45 percent where the research has qualitatively improved in comparison to the ancient time where neither the internet nor the research skilled manpower was available. Today various institutions like Vidhi Centre for Legal Policy and educational institutions provide direct and indirect research backing to the Commission. Despite so much effort, the percentage implementation of laws is not increasing as the percentage implementation of the Law Commission report in the United Kingdom is high up to 70 percent compared to India. The Government needs to take this issue seriously and address it so that the Commission’s good suggestions can be implemented in the judicial system.
The Law Commission of India is a legal think tank institution having its independent ideology working under the Ministry of Law and Justice. This was working as a statutory body during the British regime established under the Charter Act of 1833, in the year 1834. However, the Law Commission of Independent India came into existence in 1955 with the non-statutory status. The Commission has been working continuously for 65 years towards the reformation of the Indian Judicial System. The Commission has contributed many significant works which include electoral reforms and amendment in numerous legal provisions including the Criminal Procedure Code, Civil procedure Code, and Indian Evidence Act. It has been facing much trouble working under the executive shadow which hampers transparency in appointment of panel members and it’s working as well. The government has always been facing allegations of favouritism in the appointment of the Chairman and the Secretary members. Despite it, the inadequacy of financial funds has one of the major issues which hampers the progress and work of the commission. The commission should have the active commission of Jurists having jurisprudential expertise as its full-time office bearers instead of retired judges. The issue of percentage implementation of the recommendations made by the commission also needs to be redressed. The Government needs to reconstitute the Law commission and provide it a statutory status after enacting the law from the Parliament. Along with such numerous issues, the Law Commission has been working effectively for its aim of reforming the legal provisions. As soon as all the aforementioned issues shall be resolved the Law Commission of India shall work smoothly giving flying colours results.
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