Over a month ago, the media reported that Cabinet will soon take a call on reconstituting the Law Commission (IE, July15). There has been no further public information on the progress in the matter. The last commission had gone out of office a year ago, on August 31, 2018.
The Law Commission of India — the oldest amongst the national-level parastatal bodies — remains an odd one even in its 65th year. Unlike its sister organisations, established much later, it has no fixed composition, no defined eligibility criteria for its chair and members, and no set functions — everything rests on the government’s will. The terms of reference are specified afresh each time it is reconstituted as if it were an ad hoc body. It is an enigma to many as to why this oldest commission is still being treated in such a casual way while three of the other national commissions of later years, those for the Scheduled Castes, Scheduled Tribes and Backward Classes, are now regulated by the Constitution and there is a parliamentary charter for each of the national commissions for human rights, minorities, women, children and safai karmcharis.
The Law Commission is a legacy of the country’s colonial past. In 1833, our British rulers unified, under a centralised dispensation, the three presidencies they had been ruling for long, and planned to enforce the English common law in the whole of what they called “British India”. To translate their plan into action they constituted many law commissions. The work of these bodies transformed India into a common law country. After the fourth commission completed its work towards the end of 19th century, the rulers, sensing the beginning of an uprising for home rule, did not continue the exercise.
In the eighth year of Independence, the Government of India decided to revive the British legacy of appointing law commissions to study, research and report on legal matters specified in their terms of reference. The first commission, set up in 1955 for a three-year term, assumed charge on September 1 that year and vacated office on August 31, three years later. From September 1, of a given year, to the same date three years later was then irrationally adopted as the fixed term for the commission for all time to come irrespective of when a new commission was constituted and entered office. Consequently, each of the later commissions worked for less — some for much less — than three years, leaving their assigned work half way.
Though the commission’s job requires research-oriented juristic learning, which cannot essentially be the outcome of judicial experience, the commission has been a haven for retired judges. The chairpersons of the four pre-independence Law Commissions — C H Cameron, John Romilly, Whitley Stokes and Thomas Macaulay — were eminent jurists, not judges, and so were many of their members. Independent India initially maintained the tradition by appointing the distinguished jurist M C Setalvad as the chairman of its first Law Commission. The policy was later changed, and with the sole exception of the fifth commission which was headed by a non-judge (the first law secretary K V K Sundaram), the commission has always been headed by judges.
Members of the commission are also generally drawn from the judiciary, and the member-secretary is always from the bureaucracy. Of course, there have been some immortal names among them. The eighth commission was headed by the legendary judge Hansraj Khanna who had sacrificed his chance of being CJI by dissenting from the infamous majority judgment in the habeas corpus case of the Emergency days (ADM Jabalpur, 1976). The inimitable jurist-judge V R Krishna Iyer served as a member of the commission before being elevated to the apex court bench in 1973.
Reports of the commission are generally written individually by members including the chairman and placed before the full commission for discussion and adoption. Quite a few of these reports have been on the Hindu and Christian family laws, but none on the Muslim personal law. The apex court had once suggested that the issue of reform of Muslim law be entrusted by the government to the Law Commission which should work on it in consultation with National Minorities Commission (Sarla Mudgal, 1995). Commenting on it, the civil servant-turned-politician Mani Shankar Aiyar remarked: “What faith will the minorities have in the pronouncements of an all-Hindu Law Commission?” (Confessions of a Secular Fundamentalist, 2004).
The 18th Law Commission, with former Supreme Court judge A R Lakshmanan as the chairman and I as its only full-time member, was 50 per cent Muslim but the community still did not have “faith” in it. Three of the four reports written by me for the commission were criticised by Muslim clerics for their indirect “adverse effect” on the community’s supposedly sacrosanct law and my learned chairman shied away, for fear of a “backlash”, from endorsing my fourth report, seen as directly touching the Muslim law. In light of this experience, I strongly feel that if the commission has to work without regard for extra-legal and political considerations it must have a governing statute defining its powers and responsibilities, and limitations.
Before constituting the 22nd Law Commission — though the exercise is long overdue — the institution should, in my opinion, be placed under a proper parliamentary charter. The government of the day, which has conferred constitutional status on the National Backward Classes Commission, overhauled the governing law of the National Human Rights Commission and set up a Rashtriya Kamdhenu Ayog for the preservation of bovines, will do well to determine by legislation, the composition, tenure, functions and work procedure of the Law Commission. It should be a predominantly jurists’ commission, not a retired judges’ collective with a sprinkling of legal scholarship and jurisprudential expertise.
This article first appeared in the print edition on August 29, 2019 under the title ‘Reforming the Law Commission’. The author is former chairman of National Minorities Commission and member, Law Commission of India