Friday, April 20, 2018

Errantry: The Law Commission of India

The Law Commission of India has been in the news recently for making recommendations on how to categorise the BCCI for purposes of filing information requests under the Right to Information Act, as well as for expressing support for simultaneous state and central elections. During colonial rule - both before and after 1857 - the Law Commission played a pivotal role in formulating India's system of laws. Most of our current civil and criminal legal system can be traced to the work done by the Law Commissioners of British India in the 19th Century. The inception of a Law Commission for independent India was a project dear to both Prime Minister Nehru and India's first Attorney General M.C. Setalvad. Before the current tradition of the Commission being chaired by retired judges began, it was Mr. Setalvad who assumed responsibilities at the helm between 1955-58. 

From 1955 till 2018, the Commission has published 275 Reports. Out of these, some have been truly significant contributions to Indian Law. Perhaps the two standout ones are the Fourteenth Report - providing a comprehensive account of the Indian legal system - and the Forty-First Report which led to the Criminal Procedure Code, 1973. But my illusions about the importance of the Commission in the law-making process received a slight blow when, by pure chance, I stumbled upon a recent link that gives details on what happened to the first 262 Reports that the Commission has produced since 1955. From these, data is still missing for 52 reports, giving us information on 211 Reports. The statistics are not flattering. Out of 211 Reports, 92 have been implemented. But 101 out of 211 are still pending consideration. Yes, not rejected - which includes only 16 Reports. Shockingly, from the list of 101 Reports, three date back to 1957. 

For convenience, let's term the period between 1955 and 1985 - covered by the first ten Commissions - as an era of big party rule. And that since 1985 as the era of coalition politics. Till 1985, 113 Reports had been published with data for 79 Reports. Out of these 79 Reports, 54 had been accepted, 7 rejected, and 17 are still pending. That's a massive acceptance percentage of over 65%. The list contains 149 Reports between 1985 and 2015, with data on 132 Reports. Out of these, 38 have been accepted / partly accepted, and 10 rejected. That's almost 29% reports being accepted. A staggering 84 Reports are still pending consideration. All of the eighteen Reports prepared by the Commission under the chairmanship of Justice (Retd.) A.P. Shah are pending. Only one Report out of the nine prepared by the Commission before that, under Justice (Retd.) PV Reddi, was implemented.

Fascinatingly, it seems that the fate of the Law Commission Reports seems to have suffered a serious blow with the onset a more fractious political system in India. The data does not tell us when the reports were accepted or rejected, which would make it more possible to verify the effect of changing regimes on the nature of Law Commission recommendations. 

What is the significance of this, apart from being a fun pastime for perennially boring individuals such as myself? For starters, there is a statutory interpretation issue for lawyers. Classical canons of interpretation from English Law, which Indian courts often rely upon, suggest that Law Commission proposals that are rejected are evidence to support the statutory text which was kept on the books. But there is nothing on what happens when a Report is kept pending for over half a century. But the broader claim is that, perhaps, this data should make us re-examine the role and purpose of the Law Commission - at both the federal and the state level. Ideally, looking to the vision of Nehru, and how similar Commissions operate elsewhere, the Reports are serious efforts to keep improving the law by ensuring it remains useful for contemporary society. Clearly that is not happening: as the most recent Budget Session reminded us, our legislators have much better things to do than legislate. Perhaps the Commission could have a bigger involvement with law reform rather than merely forwarding the final report to the relevant Ministry? Some food for thought. 


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