Legal reform in India has been steered by dozens of its best legal minds since 1955, including legendary attorneys general M.C. Setalvad and C.K. Daphtary, justice P.B. Gajendragadkar, justice H.R. Khanna and justice V.R. Krishna Iyer.

Together, they and others have produced 256 reports (an average of just over four per year) with advice on legal provisions that need to be changed, removed or introduced.

But the pace of often long-overdue or technical law reforms has not always been directly proportional to the output of the Law Commission of India.

As opposed to its younger counterpart in the UK, where more than two-thirds of the recommendations of the 50-year-old legal reform advisory body have been turned into law, less than half of the 60-year-old Law Commission of India’s recommendations have been implemented.

Ajit Prakash Shah, chairman of the current and 20th Law Commission, says, “I have been informed that about 45% of the suggestions and recommendations in various reports submitted so far (by all law commissions) have been implemented.”

Shah, a former Delhi high court chief justice, the architect of the Delhi high court’s arbitration centre and the Bombay and Madras high courts’ mediation centres, is particularly known for his pro-gay rights ruling in the 2009 Naz Foundation case. He took over as the commission’s chairman on 21 November 2013 after previous chairman justice D.K. Jain resigned, handing over his remaining term to Shah after less than eight months in the job. The results in the 17 months since then: 13 reports and counting, with around four months to go before his term ends on 31 August.

A record-high of 33 reports in three years was achieved by the 18th commission under justice A.R. Lakshmanan between 2007 and 2009, while the 11th and 15th commissions filed 18 reports each.

Shah notes in an e-mail interview: “It is felt that suggestions made by the Commission in the past remained unimplemented as they were in general form rather than structured norms or as legal provisions. For example, the present Commission gave complete draft bills in arbitration law, electoral reforms, establishment of commercial courts, prevention of corruption. Some of these bills are either introduced or in the process of being introduced in the Parliament.”

Out of the 13 released reports, at least three bills that have made it to Parliament credit or are based on law commission reports people in the commission said: the Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts (based on the 253rd law commission report), the amendments to the prevention of corruption act (based on the 254th report), the Repealing and Amending Bill 2014 (incorporating reports 248, 249, 250 and 251 on obsolete laws) have all been cleared by the cabinet or tabled in Parliament, while the 246th report on arbitration and conciliation is likely to become a bill soon.

“Justice Shah wants policymaking to be grounded in rights, and also in empirical studies—in experience-based accounts of how law is actually operated,” says Aparna Chandra, assistant professor at National Law University (NLU), Delhi, who has been assisting the current commission in a sub-committee.

Implementation

The law commission, as an intellectually independent wing of the law ministry’s department of justice, may not be bound by the ideology of the ministry, but it sits within the ministry. It has no mandate over ministerial agendas.

“The government has (sometimes) taken an excellent idea from the law commission and ruined it. Just due to politics (and) the way the bureaucracy works. For instance, the national tax tribunal which just got struck down by the Supreme Court (in part because it usurped judges’ powers), originated from a report under the chairmanship of justice D.A. Desai who had proposed a national tax court (presided over by judges instead of bureaucrats),” says Alok Prasanna Kumar, senior resident fellow at the Vidhi Centre for Legal Policy, which was instrumental in preparing the commercial courts bill that was tabled in Parliament this session.

At other times, the law commission has failed to make a compelling case for a reform.

Kumar explains that the law commission, which began on a note where “legal luminaries such as M.C. Setalvad and Nani Palkhivala quit their jobs and gave up a year of their professional life to join it, as national service”, went through a phase where the initial high quality of its reports wasn’t maintained.

He says its reports seemed to lack depth in analysis and didn’t feature sufficient breadth of views on a topic and couldn’t form the basis for the kind of legal reform that it was originally intended to assist.

“I think what happened at some point is that the law commission did not have sufficient research backing and the institutional capacity to produce the kind of reports that the government could take seriously,” says Kumar.

Shah notes: “One cannot easily conclude that (the present) rate of implementation (of recommendations) is slow especially keeping in view that the Parliament has to deal with varied views and other nuances before making a law.”

He adds that the goal of the 20th commission is to prepare recommendations in the form of draft bills, instead of mere guidelines. This approach, he believes, “contributes a greater input to the entire legislative exercise undertaken by the government as well (as) by Parliament”.

But legislation is not the only place where its recommendations may be taken seriously.

Vrinda Bhandari, currently a practising high court advocate and a three-month consultant at the law commission in 2014-15, comments: “One thing people forget is that the law commission reports really help in litigation later on. So it might not get taken up by the government today but in some Supreme Court judgement it does get cited and helps formulate a point.”

In the 1980 Bachan Singh vs State of Punjab case appealing a triple-murder death sentence, a five-judge constitutional bench famously laid down the doctrine that the death penalty should only be applied in the “rarest of rare” cases, relying heavily on Law Commission reports.

“A lot of the power that the law commission gets is because its recommendations are just recommendations. If there was a sense of obligation associated with it, I am guessing there would be a lot more interference with the law commission. In some senses, it is a quid pro quo,” says Chandra.

Shah disagrees. He says : “It is high time that the Law Commission of India is given a statutory status.”

Style

“When you have a broad vision (for law reform), then you will want to bring in voices from the field,” says Chandra about Shah’s approach to steering the 20th commission.

The acknowledgments section of the 13 reports that have been released by the commission under Shah each lists the names of at least a dozen academics, practising lawyers, senior counsel, non-governmental organizations (NGOs), think-tanks and former judges.

And those are in addition to the chairman, four full-time members, two government officers, four research staff members and five part-time members of the law commission.

“Since the time I joined the Commission, the pattern of the work adopted is to first hold an in-house meeting of the Commission members on the subject under reference from the government or Courts or taken suo moto on issues and nuances involved in the scope of the study,” Shah explains.

“The Commission then constitutes a multi- or cross-sector group comprising necessary expertise of national level from various fields involving professionals—lawyers, researchers, senior scholars and professors from national law universities—and also if and when required NGOs working on the subject. Sometimes, the Commission prepares a consultation paper highlighting various issues and debates around the subject matter and inviting suggestions, comments and views on such identified issues.

“Views and comments so received are analysed. Such analysis many times has proved very relevant in Commission suggesting and making recommendations,” he adds.

According to Kumar, Shah has added “great rigour” to the process.

“Unless you have a peer review, you are not going to get a good report at the end of the day. Especially in research and recommendation, unless you are able to test the ideas, unless there’s a debate and breaking down at the conceptual level,” he says.

Chandra notes, “(Shah) makes a conscious effort to bring different sort of voices together so that the report does not become one-sided. Most law commission chairmen have been former SC (Supreme Court) judges, so connections wouldn’t have been a problem for them but it depends more on who gets called. For instance, you want to bring in NGOs and take their vision into account, which justice Shah does. If your view of law is very narrow, limited, doctrinal, then you’ll probably think of only lawyers. So it definitely depends on the vision of the chair.”

“There are six different sub-committees, and we have academics, senior counsel, human rights lawyers, people who do more defence type work. So it’s actually a very good mix just to ensure that you’re hearing every side,” says Bhandari, adding, “I think he’s made the law commission, in that sense, a very open place.”

Process

Once the commission receives a reference from the Supreme Court or the legislature, or decides to take up an issue of its own accord, a consultation paper is drafted with a list of questions, says Bhandari. After the commission receives responses to this paper, it forms the sub-committee that will work on a given report.

The sub-committee that is formed consists of members as well as researchers and consultants, and an in-depth study of the subject under reference is carried out by the sub-committee, which is in turn discussed in the full commission. The full-time members are closely involved with such committees, explains Shah.

NLU’s Chandra, who is part of one such sub-committee, elaborates: “By the time we get a report ready for discussion with even justice Shah, there are many rounds of internal consultations that take place. (Another academic), I and a group of students sit together and draft the rules. Then we have a round of discussion with lawyers about their experiences and making sure that their perspective gets incorporated. Then discussion with judges for their experience in the trial courts. After that the discussion goes to justice Shah.”

Kumar narrates his and Vidhi Centre’s experience on the commercial courts bill sub-committee: “It took us a whole year—both the institution and the procedural rules. We would meet once in two or three weeks depending on what needs to be done and would figure out what needs to be done, we would go back, work, come back, discuss again.

“And it was a very rigorous and consultative process. Everything that we wrote we went over again probably 20 times, to see if the idea is coming across clearly, to see if the concepts have been explained properly, to see if our argument has been made out correctly...

“Justice Shah’s biggest (aim) was to make sure that we went very systematically, that we were very thorough, that we covered all the bases; no scope to say that we have missed out on a glaring thing.”

Chandra adds, “You should see the pace at which (Shah) works—sitting on Saturdays, Sundays for long meetings. It also happens that everyone is a busy professional so it becomes difficult to find time during the week.”

The gap

All the legal minds, other than the full-time members working with the law commission, are serving the cause of legal reform in India without payment. In 2014, the chairman and members were on a pay of Rs.90,000 and Rs.80,000 per month, respectively, while the commission’s total 2013-14 budget was Rs.13.61 crore.

“The problem that the law commission faces is it has very little funds. As a result, what happens is, (academics from NLU Delhi) have an advantage because of the fact that we are sitting in Delhi (where the office of the commission is situated),” says Chandra.

“NLU Delhi gives us the support for our travel and logistical support. The law commission doesn’t even have money to reimburse our own travel internally, so it doesn’t have financial power to even involve academics from across the country,” Chandra adds.

She explains that law commission activities, which took a bigger chunk of her time than her teaching responsibilities for more than a year, were possible due to support from vice-chancellor Ranbir Singh, who has himself worked on reports released by previous commissions.

Kumar says, “It wasn’t the easiest for (the sub-committee) to actually sit there for longer periods of time. We could meet there but the facilities weren’t enough to actually research there.”

Shah adds, “The funds allocated to the Commission are rather inadequate and that limits the ability of the Commission to engage the best of resources. For example, we have a completely outdated library presently housed in the ILI (Indian Law Institute) building. Recently, the Commission has procured some legal software, although this is still insufficient to meet the Commission’s requirements. Lack of adequate resources also limits the ability of the Commission to interact with the general public.

“For example, the UK Law Commission conducts at least four to five public interactions/ consultations for every proposal in different parts of the country. Funds are required for activities of such kind,” says Shah.

Shah also notes that the present tenure of the commission, of three years, is “a rather insufficient time to conceive and implement the proposals of the Commission”, compared with the UK where the tenure is for five years.

Update: Since publication, it has been reported that the government is considering making the law commission a statutory body.

This article was first published in Mint yesterday. Mint’s association with Legally India will bring you regular insight and analysis of major developments in law and the legal world.

Photo by Nikhil Kanekal