22nd Law Commission

Why in news:

The government has recently announced the constitution of 22nd law commission.

Law Commission of India:

• The law commission of India is an advisory body constituted every three years by the government to recommend legal reforms to meet the changing demands of the society.
• It is neither a constitutional nor a statutory body. Its constitution and terms of references are fixed on an ad-hoc basis.
• The commission consist of a Chairperson and other members. Usually the Chairperson will be a retired Supreme Court judge or a retired chief justice of a High Court.
• The commission makes recommendations on different aspects of law which are entrusted to it by the government for its study and recommendations, as per its terms of reference. The recommendations are not binding on the government.
• The first law commission was established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Macaulay who is credited with the Indian Penal code (1860) and the Criminal procedure code (1861). Post-independence, the commission was first constituted in 1955 with the then Attorney-General of India, Mr. M. C. Setalvad, as its Chairman.
• Since then twenty one more Law Commissions have been appointed with different terms of reference. 
• The 22nd Law Commission (current one) is constituted for a period of three years.It will consist of:
  • 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
  • not more than five part-time Members.

Contribution of the Commission to legal reforms:

• It plays an important role in suggesting new laws, changing or updating outdated colonial laws to meet the needs of the present. The Commission's recommendations on the implementation of United Nations Convention against Torture, deferring on implementing Uniform Civil Code in the current setting of the country, suggestions of scrapping archaic laws are some of the examples.
• The commission brings in the much needed intellectual rigour required for reforming laws that must be based on just principles.
• The extensive research and consultation process ensures that its recommendations are free of political considerations.
• It ensures that legal reforms are in tune with internationally accepted principles and agreements.
• It also take up matters suo moto. For example the 20th commission recommended repeal and amendment of certain laws which discriminated people affected by Leprosy.
• It creates valuable literature for future references by courts, legal academia and national institutions. For example, Central Information Commission made references to the Law Commission Report while ruling that the BCCI (Board of Control for Cricket in India) comes under the ambit of RTI (Right to Information Act).
• In a number of decisions, the Supreme Court has referred to the work done by the commission and followed its recommendations. Eg: In Bachan Singh vs State of Punjab (1980) the Supreme court laid down the principle of ‘rarest of the rare’ for awarding death penalties by relying on Law commission reports.

Some of the issues associated with the Commission:

• Lack of statutory status: This makes the law commission a weak institution and denies autonomy. In most countries it is a statutory body.
• Lack of continuity: Often there is a gap after the expiry of existing panel before the next is constituted. For example, the term of 21st panel expired in September 2018 and the current one has been constituted only in February 2020. Sometimes tenure of the panel is expired before the recommendations are made. Three years seems insufficient for its proper functioning.
• Appointments: It is done by the government which sometimes are made for personal favours. Also the process lack any criteria.
• Autonomy: Ministerial control and the presence of law secretary (part of the executive) affects its independent functioning.
• Lack of resources: Insufficient institutional capacity in terms of funds and functionaries make it difficult for the panel to deal with increasing work load. It is being flooded with references even from high courts. 
• Non implementation: Actual reforms implemented always lag behind the recommendations made. Less than half of the 60-year-old Law Commission’s recommendations have been implemented.

Reforms need to make the Law Commission more meaningful:

• Making it a statutory commission will bring much needed autonomy and continuity in its function. It will loosen the grip of the executive over it. 
• Clear guidelines for the appointment process to avoid nepotism. The chairperson can have a role in the appointment of other members.
• Sufficient funding, proper resources, tie up with law institutions etc will improve the institutional capacity to deal with the increasing workload and to come up with well researched reports. It also makes it possible for the commission to work on issues outside those listed in the terms of reference.
• The government needs to ensure that reports by the commission is taken up for follow up actions. 

Practice Question

Q. The law commission of India plays an important role in reforming the legal system. Do you think it be made into a statutory body?