By Khushi Agarwal
There are three branches of Government Legislature, Executive and Judiciary. The Law Commission comes under the second category, that is, Executive.
There has been no mention of the Law Commission under any Article of the Constitution of India. Therefore, it is a Non-Constitutional and Non-Statutory Body. It is established from time to time as per the need of the Government and works as an Advisory Body to the Ministry of Law and Justice.
It’s not a permanent body. It is formed on an ad hoc basis, that is, on a temporary basis. The tenure of one Law Commission is usually three years.
The Law Commission mainly contains:
- One Chairman, who is mainly the retired judge of the Supreme Court
- One Member Secratory
- One Permanent Member, who is also usually the retired judge of either Supreme Court or High Court
- Two Part-time members, and
- Two Ex-officio members.
Usually, the composition remains like this. However, it can be changed as per the needs and orders of the Government. All the people in the Law Commission are legal experts from various fields who can be either retired judges of the courts or any other person with command in legal knowledge.
The last Law Commission was 21st Law Commission headed by Balbir Singh Chauhan whose tenure ended on 31 August 2018.
Pre-Independence Period
Now it has been a long time since the laws started governing the country and its citizens. It has been around three hundred years now when the law reforms became part of Indian history. However, in those ancient times, there was not any institution for making these law reforms.
But it was during the British era that people thought of making the law process institutionalized. First Law Commission of Pre-Independence India came in the third decade of the nineteenth century, that is, 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.
Thereafter, from time to time, the Government has established various law commissions for getting recommendations on various subjects related to law and to clarify, consolidate and codify branches of law wherever the Government felt the necessity.
The first four Law Commissions of Pre-Independence India were established in 1834, 1853, 1861 and 1879 respectively. 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.
Post-Independence Period
India gained Independence in 1947. The first Law Commission after the Independence set up in India was in 1955. The first chairman of the first Post-Independence Law Commission was Motilal Chimanlal Setalvad who was also the first Attorney General of India.
Since then 21 Law Commissions have seen set up in India till date and 22nd Law Commission has got the approval of the Government for its establishment.
Roles and Functions
Although the Law Commission is not a Statutory Body, it has many important roles and functions assigned to it. Some of them are as follows:
- It is required to undertake extensive research and study deeply the various matters related to the law given to it either by Central Government or suo-motu.
- Review the existing laws in the country for their improvement and suggest Government reforms on those matters for their productive results.
- Study and research various matters related to the country and problems faced by it and put forward the results before the Government for enacting new legislation.
- To continuously make reform for reducing the high cost of litigation incurred by people and state, eliminating long time taken delivering justice and to make procedures easier to shorten the time taken.
Therefore, to summarise, the main functions of the Law Commission are to Research, make Legal Reforms, Review existing Laws and Recommend Government.
The functioning of the Law Commission has the following stages:
- Initiation of projects at the commission’s meetings;
- Discussion of priorities; identification of topics and assignment of preparatory work to Members;
- Adoption of methodologies for collection of data and research;
- Outlining of problems and determination of areas for reform;
- Consultations with the public, professional bodies and academic institutions;
- Evaluation of responses and preparation of the draft of report;
- Discussion and scrutiny of report, leading to its finalization; and
- Forwarding of the report to the Ministry of Law and Justice.
Once the Reports are submitted to the Government, the functioning of the Law Commissiiion mainly comes to an end. Although it can be asked to rework or review the reports submitted by it for more clarification.
Reports
From time to time, these Law Commissions have made a very important contribution to the formation of laws in the country through their specialized reforms and reports. From the very first Law Commission till date, 277 reports have been submitted by various Law Commissions.
The reports and recommendations made by the Law Commission are non-binding, that is, it is upto the Government to accept or reject the recommendations made by the Commission in its report.
Some of the latest Reports submitted so far are:
- Report No. 277 – This report titled “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies”, suggested the legal remedies in wrongful prosecution.
- Report No. 276 – Report titled “Legal Framework: Gambling and Sports Betting Including in Cricket in India”, talked about the problem India is facing with respect to gambling and recommended reforms on this major issue.
- Report No. 275 – Whether the Board of Control for Cricket in India should come under the purview of the Right to Information Act, 2005 was the subject of this report which was titled “Legal Framework: BCCI vis-à-vis Right to Information Act, 2005”.
- Report No. 274 – This report dealt with the Contempt of Court Act, 1971 and was given the name “Review of the Contempt of Courts Act, 1971”.
- Report No. 273 – It dealt with the issue of “Implementation of the United Nations Convention against Torture”.
Other major reports talked about the various issues the country is going through and need reforms on such as Uniform Civil Code, Human DNA Profiling, Registration of Marriages and so on.
22nd Law Commission
The latest 22nd Law Commission got the Union Cabinet which was headed by Prime Minister, Shri Narendra Singh Modi’s approval for its constitution on 19 February 2020 for the next three years.
According to the Gazette released by The Government, this Commission will have:
- 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.
The work assigned to this latest Law Commission includes:
- Identifying and repealing laws that are not relevant or are not required now
- Paying attention towards the poor people and make laws for providing good services to those poor people
- To research and suggest reforms that can be made to achieve the objectives mentioned in the Preamble of the Constitution and also to examine and improve the existing laws in light of Directive Principles of State Policy for their effective implementation
- Whatever issues have been specifically given to it by the Ministry of Law and Justice, to research and suggest the Government upon those matters.
Conclusion
As the Law Commission is a specialized body containing experts from various law fields, it is of great importance to the Government a well as to the country.
Due to its presence, Government can get specialized reports and recommendations on different aspects related to the law which can help the Government in ruling the country and making laws for the country.
Although the Law Commission is functioning well, some changes are required to be made for its more fruitful working.
First of all, a Law should be made which will define and govern the responsibilities, powers and functioning of the Law Commission and according to which the Law Commission will work. This will result in the Independence of the Law Commission from the Government and hence, will get a Statutory status.
Besides this, the Law Commission should be granted more funds for its proper functioning as the Law commission is very crucial for both the Government and its citizens. People appointed should have in-depth knowledge on law subjects and should be experts in, especially juristic subjects.
Also, continuity should be brought in its functioning. For example, the tenure of the 21st Law Commission ended on 31 August 2018 and the 22nd Law Commission got approval in 2020. There is such a big-time gap between these two. This gap should be removed.
Law Commissions should be paid more attention as they are of great importance, especially in today’s time. Society is evolving at a high pace and therefore, the requirements of laws are also changing.
Some laws are required to be brought while some are needed to be repealed. Therefore, their presence is relevant and critical nowadays.
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