Two years and four months after the Ministry of Law and Justice notified the constitution of the 22nd Law Commission of India, the advisory body on legal reforms is functioning without a Chairperson.
The Commission, constituted for a term of three years, has not released any report after the tenure of the last Chairperson, Justice B.S. Chauhan, ended in August 2018.
Speaking on the implications of a headless Law Commission, former Supreme Court judge Justice Madan B. Lokur told The Hindu, “It is very unfortunate that the Law Commission has become more or less defunct”.
‘Extremely important” role
He said the Law Commission had an “extremely important” role to play in terms of policy formulation for the justice delivery system. “It also has a role in identifying developments and trends in law and justice. Finally, it has a role to play in identifying bottlenecks in justice delivery and suggesting workable solutions,” he noted.
Noted senior advocate Indira Jaising said, “The Law Commission ought to be an important institution driving legal change reform and updating of legal knowledge. Over the years it has been reduced to an irrelevant institution”.
Rich history
After Mr. M.C. Setalvad, the then Attorney-General of India, was appointed as the first Chairperson of the first Law Commission of India, 18 more jurists, including former Supreme Court judge Justice H.R. Khanna, the lone dissenter in a five-member Bench that heard the habeas corpus case in ADM Jabalpur vs Shivkant Shukla case during the Emergency rule, have donned the role of its head.
More recently, former Chief Justice of the Delhi High Court Justice A.P. Shah, who delivered the landmark 2009 judgment decriminalising homosexuality, produced 19 reports during his three-year term as its Chairperson. On his last report, Justice Shah recommended the abolition of the death penalty for all crimes other than terrorism related offences and waging war.
In total, the Commission has produced 277 reports on varied topics of legal reforms. Its recommendations are not binding upon the government. However, it is estimated that about 45 per cent of its recommendations have been acted upon or made into laws.
Statutory body
The Commission is a non-statutory body, which has been established by the government for a three-year tenure. The Madras High Court in August last directed the government to make the Law Commission a statutory body or a constitutional body, like the National Commission for Scheduled Caste and Scheduled Tribes and Backward Classes This, the High Court reasoned, was necessary to make the recommendations of the Commission are binding upon the government.
“The whole exercise done by the Law Commission with research and also consulting various stakeholders and making recommendations would become futile, if the recommendations are not acted upon,” the High Court had said.
The Centre had, then, informed the High Court that the appointment of the Chairperson and Members of the 22nd Law Commission constituted on February 21, 2020 was “under the consideration of the government”.
“The non-appointment of the Chairman and Members of the Law Commission of India which is like an Advisory Board, for a long time, will affect the progress of the law-making process in the country,” the court had remarked. It then ordered the Centre to appoint the Chairperson and other members for of the Commission within three months. Nothing has come out of the order till now.
Commission for States too
Justice Lokur underscored the need for separate law commissions for States. “The Law Commission primarily, if not only, considers issues of national importance. States have their own issues and, therefore, I believe that each State must also have a law commission which can play a part in policy formulation, development and trends and removing bottlenecks concerning the State,” he said.
“This is extremely urgent and absolutely necessary considering that each State has its own requirements. I am a strong advocate of every State having its own law commission,” he added.
