INTRODUCTION: IMPORTANCE OF THE CHANGING INDIAN LAW COMMISSION
The law commission of India is an essential independent body that ensures the fair and just implementation of the laws. The law commission of India is constituted by the Indian government for every three years and it is a non-statutory body. The constitution of India is not intended to define the law commission but instead the formation is seen with the implementation of the laws. Article 39 A (AUTHORITY, 1976) is one such instance by the Indian constitution that ensures the legal system operation in order to promote justice fairly. The law commission can be more precisely referred as the ad hoc body that is established mainly to accomplish the specific purpose. The first law commission of India was formed during the British rule in 1834 with the Charter Act of 1833 (Ehrlich, 2018) headed by Lord Macaulay, but its implementation came into existence after the independence of India in 1955. The law commission also provides counsels to the Ministry of Law and Order to bring reformation in law.
However, framing of laws not only suffice the requirement of the purpose but the proper implementation of the law has to be checked by the concerned authorities in order to ensure that the law is beneficial to the society and to check the requirement of corrections to be done in the law. In addition to that extension of time period of the particular has to be checked. Sometimes need arises when the law has to be repealed which also has to properly checked. All these requires a concerned authority to have a proper monitor. Therefore, it is the responsibility of the Ministry of Law and Justice along with the law commission to ensure the fair justice to the citizens. The formation of law commission is not provided by the Indian constitution whereas the existence of the law commission is specified by the Indian constitution with some indications mentioning about the presence of authority in framing the laws in the Part III the Fundamental Rights and Part IV Directive Principles of the state.
As mentioned in the Article 39 A (AUTHORITY, 1976), it is the duty of the state to ensure justice through the assurance of opportunities and free legal helps with the availability of schemes. The state is also responsible in assuring justice to the citizens without any denial on the ground of any disabilities. On a broader note the prime objective of law commission formation is the directions as mentioned in the Article 39 A. However as Article 372 (Constitution, 1949) mentioned it is also essential that suitable authorities should exist in order to amend, repeal and revise the laws and to check for any requirement that is necessary. It is also essential to stride with the requirement changes with respect to time.
Generally, these law and development of the law commission strives to assure a transformation in the legal systems so that the social, political and economic development can be fostered which have to be hand in hand with the academic projects as well. Since the existence from the mid of the 20th century the projects and ideas of law and development have changed with the changes in the development and priorities. There had been two consensus made in the practices from its formation in the 20th century while in the beginning of the 21st century the projects and ideas framed in the 20th century were critiqued and assessed (D. M. Trubek, 2012). With that context several novel themes emerged with the fragmentation of the field and the disappearance of consensus. In the early days of formation, the law commission concentrated on the purpose of domestic law in order to enable and ensure the economic growth and hence law was empowered in the notion of development by the law commission. By the late of the 20th century, the method paved a way to concentrate on the law in order to support the market and overcome the limitations (D. Trubek, 2006). The 21st century has seen so many forces and ideas in the transformation of the field.
The up surging global force impact is another reason to draw the attention of the responsibilities of the actors and global institutions. However new projections on the development is another factor that initiated the revision of the law commission for a better private-public coordination. Nevertheless, the expectation of development of law has put forth all the changes. Thus the importance of law commission is the factor that enforced the changes of law in the 20th century as the laws were frail and faulty about the roles and the possibilities for which it was framed and hence that led to the calls for research for an evidential approach for the effective changes (More, Raj, & Sindhi, 2021).
HISTORY OF THE INDIAN LAW COMMISSION
Since the independence of India there were totally 21 law commissions. Thus the 21st law commission of India was set up in September 2015 that was headed by Justice Balbir Singh Chauhan as its chairman who was the former Supreme Court judge. The term ended on August 2018. However, the 22nd law commission was constituted on 21st February 2020 by the Indian government. Nevertheless, the progress has been poor in this regard.
The pre-independent law commission of India set up in 1834 recommended the British government several enactments were most of them were passed, enacted and still in force in India. Most prominent ones are the Indian Penal Code that was acquiesced in 1837, enacted in 1860 and is still in force. Another such prominent enactment is the Criminal Procedure Code that was enacted in the year 1898 and was succeeded by the Criminal Procedure Code in the year 1973. Followed by that three more commissions were approved in 1853, 1861 and 1879.
Mr. M.C. Setalvad was the chairman of the first law commission of the post-independent India set up in 1955. The first law commission served for three years and its last report was given in September 1958 where few of the reports were related to the Partnership Act, 1932, Income Tax Act, 1922, Registration Act, 1908 and Sale of Goods Act, 1930. (Patra, 1961)
ESTABLISHMENT AND COMPOSITION OF LAW COMMISSION
The law commission is generally framed when the need arises and the central government passes the tenacity or resolution stating the requirement of a new-fangled law commission. Once the resolution is passed and consented by the President of India, the government is the sole authority that can select the chairman for the new law commission that is to be formed. It has been a customary practice in the history that former Supreme Court judges become the chairman of the law commission.
The composition of law commission generally consists of legal professionals and experts who are appointed by the Central government of India in order to ensure fair justice being provided to the society. The government at times makes note on particular issues to be remarkably worked by the law commission or the law commission itself suo-motu selects an issue to be addressed and works on it to frame laws (S. C. Jain, 2003). The composition of the law commission is given below,
- Six part-time members
- One member secretary
- One permanent member
- One chairman
The 21st law commission is composed of,
- Five permanent members
- Secretary, ex officio member (Legislative Department)
- Secretary, ex officio member (Legal Affairs)
- Four full time members inclusive of one member secretary
- A chairman on a full time basis
The staffs of law commission are divided generally into two parts where in one part the panel of research is present with various positions and in the other part the secretarial staff who look after the administrative work are present. During the three year period of each commission the law commission recommends reformations to be made in the Ministry of Law and Justice.
ROLES AND RESPONSIBILITIES OF THE LAW COMMISSION
The preliminary role of the law commission is to work on the issue referenced by the Central government or it undertakes issues on suo-motu and works on it in order make research on new laws to be framed and also review the already existing Indian laws with which revision and new enactment s are made (Tripathi, 2020). The main roles and responsibilities of the Indian law commission are mentioned below,
- Assessment or repeal of outdated laws – In this regard the law commission identifies the laws that are irrelevant and laws that needs revision also the repeal of outdated laws are also done and considers the enactments that are irrelevant in serving the purpose for which it was framed.
- The law commission analyses the laws that are found to affect and strike the poor. Thus, a coordination with post-audit is done for the socio-economic statutes.
- Suggestion of enacting the new legislations is also done by the law commission in order bring the implementation of the Directive Principles and further reach the set objectives in the constitution preamble.
- Request consideration of providing research guidance to foreign countries are referred by the Central government to it, through the legal affairs department.
- The law commission also conveys its views to the government on any subject of matter relating to judicial administration and law that has been referred to the commission through the Ministry of Law and Justice by the government.
- Analyses the globalization impacts on unemployment, food security and recommends proper measures in protecting the welfare and well-being of the marginalized.
- Analyses the existing laws in order to enhance gender equality and recommends amendments.
- Preparation and submission of reports to the government from regular time intervals on all matters, issues. The law commission also provides effective measures to the state and Union regarding the analysed issue.
- Prior to the finalisation of the recommendations, the law commission discusses with the nodal Department/Ministry that it considers to be essential for the purpose.
- Any other functions other than this will be assigned by the Central government to the law commission.
ROLE OF LAW COMMISSION IN LEGAL REFORMATION
The law commission of India is much significant in guaranteeing public interest. It has intended itself in framing and forming robust public policies. It plays two contradictory roles one is the role of the advisory body and on the other hand it disparages the policies of the government that is not beneficial to the public. The law commission also brings a legal reformation by the identification of defective public policy and recommends measures for correction. However, the suggestions given by the commission has not to compulsorily be accepted by the government as it can accept as well reject the suggestions and recommendations.
On the other hand, the law commission has the freedom taking suo-motu in cases where no individual body can raise opposition the intervention of the commission. On a maximum the Supreme Court has accepted the law commission recommendations (Commission, 2002). Also the Supreme Court has followed the suggestions and recommendations given by the law commission.
The law reformation brought by the Indian law commission is numerous in several ways. Some of the exemplary works of the law commission include commercial court expansion, introduction of fast-track courts, reforms in the electoral systems, legal provision amendments in civil and criminal laws, law of anti-defection. The appointments to the law commission are initiated by the Government of India. There are also certain implementations that have not been made by the government, also there are a number of cases where the lack of research in the required field leads to lesser implementations and thus the efficiency of the Indian law commission is questionable its purpose.
FUNCTIONING OF THE LAW COMMISSION
The research panel of the law commission consists of researchers of various ranks with experience in various fields. Meetings are held to discuss on the needs of reformations and during the meetings several issues and topics are discussed. Then after which topics are selected from the discussion and it is further circulated among the members that aids in the attainment of consensus of the members.
Followed by the discussion and selection the outline of the issue that is selected unanimously is formed. The outline consists of the issues of concern and the process by which can be solved. The outline is further circulated to the related authorities in order to get their point of consideration. Once receiving the recommendations and suggestions from the concerned authorities, the commission analyses and prepares an introductory part that is to be presented in the report. The introductory part and the report are generally written by the chairman or by the secretary or by any member of the commission. After the finalisation of the reports the preparation of final draft of amendment is done and is attached with the report and is eventually forwarded to the central government.
Thus, it is clearly evident that the prominent aim of the law commission is to provide a proper shape to the government with appropriate policies that can serve for the people in attaining justice. And it is also clear that the legal reformation brought about by the law commission is eminent and has corrected the erroneous decision of the government. But the saddening part is the non-implementation of laws that has led to the in effectiveness of the law commission (Chalakkal & Prabhakaran, 2021).
FOCUS AND APPROACH FOR EXCELLENCE
A view that is unduly cynical with regards to legal arrangements to consider such provisions of the law commission as being totally inefficient. No doubt, national bodies that have been entrusted with executing conventions related to amendments of law commission could realize meaningful outcomes by concentrating on required attention on supposed violations, especially when the need involves a state that is largely committed to deliver fair justice to people. However, the fact that government enforcements are weak is quite evident. The remedial powers wielded by the commission would be restricted to those pertaining to conciliation with the Central government (Boggis‐Rolfe, 1967). And hence the commission is put in a place, whose final report has to be binding as such.
Nonetheless, an entirely different set of challenges emerge in nation that need a particular model of legislative transformation. Considering that the question of domestic enforceability with regards to the amendments of the law commission, there is a requirement to acquire the practical significance only in situations where there is disparity amongst standards in enforcement, the need for a particular transformation looks like making national guarantees as not having any power precisely when they are most required. Definitely, an alternative route to enforcement exists, particularly while finding that an instrument of convention has on the basis of general compliance and acceptance, shifted on to the effectiveness of the Indian law commission. However, the idea that no improvements can be made on the effectiveness of law commission of India is no longer acceptable. As these Law Commissions have been in existence since Indian independence there is a need to evaluate and find its performance effectiveness and its contributions to Indian law making and its impact on Indian society. As such there has been no researches conducted in this direction, this research study is an investigation in to the nature and extent of performance effectiveness of Law Commissions in India that would definitely bring a scope of excellence in the context of research. And so is the statement of Clarence Darrow,
IMPLEMENTATION OF THE INDIAN LAW COMMISSION RECOMMENDATIONS
The implementations of the suggestions and recommendations made by the Indian law commission is the major cause of concern as there had been only lesser implementation from its existence till date. The implementation percentage of the recommendations is just 35% which is a qualitative improvement from the earlier period. Although there had been various efforts taken in the improvement of implementation of the recommendations of the law commission the result has been futile with a marginal increase in the percentage. Hence corrective measure have to be taken in order to improve the percentage of implementation thereby the effectiveness of the law commission would be further improved. The comparison of the implementation of the recommendations of the law commission is presented below in figure 1.1,
Figure 1.1 Chart Showing Status Report of Implementation of Law Commission Reports
Thus far from the existence of the law commission till the 21st law commission, there have been a total of 277 reports submitted which are presented below in the table 1.1,
Table 1.1 Total number of Reports Submitted by the Indian Law Commission
|Number of Reports Submitted|
The contribution of the Indian law commission has been so significant that the electoral reform took a varied convergence in several legal activities inclusive of the Evidence Act, Civil Procedure Code and Criminal Procedure Code (Kishore). However, the challenges faced by the law commission has been numerous that it the working of it under the shadow of the executive that led to the lack of transparency in selecting and appointing the members of the panel. Also, the government is slapped off with the favouritism allegations in the appointment of the secretary members and chairman as well. In addition to that the financial inadequacy has slowed down the work and progress of the commission (Getches, Wilkinson, Williams Jr, & Fletcher, 2011).
The readdress of the improvement of the implementation percentage of the recommendations made by the law commission has also to be done in order to enhance the effectiveness of the law commission. The non-statutory status of the law commission is another factor that hinders the effectiveness. Therefore, the government has to consider the reconstitution of the law commission in providing the statutory status after the law enactment from Parliament. Addressing all the aforementioned issues will definitely make the law commission more effective in serving its purpose to people. The overall status of the implementation of the law commission reports are mentioned below in the table 1.2 and the graphical representation is given in figure 1.2.
Table 1.2 Overall Status of Implementation of Law Commission Reports
It is found from this report that only 35% of the total reports submitted by the Law Commission of India till 2015 has been implemented. This is very less and limited and the reasons has to be pursued and examined as research which is attempted in this work.
Figure 1.2 Graphical representation of number of reports submitted
It is clearly evident from the above chart that in the 10th commission has as much as 26 reports which has been prepared and submitted and in 18th commission report we could find that 33 reports have been made which is the highest contribution by the Law Commission of India.
The Law Commission by nature provides recommendations and suggestions on various legal issues. This committee is constituted by the Government and it submits its recommendations to Law Ministry. The Law Commission by nature has a chairman and a functional body of members which can function for a period of 3 years only. The Law Commission takes in to views and opinions of public from various sources and prepares a draft proposal on law related challenges and submits to the Government for consideration and making changes in the law-making process.
As these Law Commissions have been in existence since Indian independence there is a need to evaluate and find its performance effectiveness and its contributions to Indian law making and its impact on Indian society. The challenges and issues faced by the law commission in being effective with the implementation has been numerous. This implementation of a report would no doubt be scantly availed, as it is not the case within other countries, the nation does not adhere to or conform to any compliance on this issue of the law commission. In addition, the need for the implementation of the reports of the law commission to be self-implementing has hardly any scope to be fulfilled by the government that guaranteed the implementation from being amended through the medium of widely accepted by the government (MARKOSE, 1960). But the problem arises when the suggestions and recommendations made by these commissions since independence has been 277 reports which has been 35% effective. What is lagging and what has to be done in future to make this commission more effective in functioning and qualitative in contributions as these research-oriented issues has not been studied or evaluated before, the researcher further will make an attempt to provide solutions and address these problems which are inherent and persistent in Indian Law Commission and it’s functioning.
The Author is Aounkar Anand, Co – Founder & COO at RostrumLegal.