Law Commission headless for nearly six months
The 21st Law Commission was constituted for a period of three years from 1 September, 2015 . The commission will have its tenure only till 31 August 2018. Of these three years, the first six months (and may be even more period) would have been without its full-time Chairperson, and other members, who are yet to be nominated by the Government.
The Law Commission comprises 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, and not more than five part-time Members. There is considerable concern that the Commission’s role could be weakened, by the delayed appointments, as it would be left with less time to complete its tasks.
Speaking to LiveLaw, Activist Lawyer Prashant Bhushan said
“It shows that the Government is not serious about any legal or judicial reforms; otherwise they would not keep this vacant. There are so many important legal and judicial reforms are required in this Country and for that the law commission is the appropriate body to recommend the same to the Government. But unfortunately even in the past we have seen that the law commission reports have very rarely been implemented by the Governments. Successive governments are not serious about the legal and judicial reforms and this government is also doing the same”.
The former Chairman of the Commission Justice AP Shah told LiveLaw that it should be a continuous commission and there is certainly a necessity to give a statutory status to the Law Commission of India
Who could be its Members?
Any sitting or retired Judge of the Supreme Court or the High Courts could be considered for the post of Law Commission’s chairperson or its full-time members. In the case of sitting Judges, he or she will perform the functions of chairperson/Member on a whole-time basis upto the date of his or her retirement from the Supreme Court/High Court or expiry of the term of the Commission whichever be earlier. In the case of retired Judges, they would perform the functions of Chairperson/Member of the Law Commission on a whole-time basis from the date of his or her appointment and upto the expiry of the term of the Commission.
The notification setting up the Commission says the persons, to be nominated as Chairperson or its full-time Members, could also be drawn from categories, other than serving or retired Judges. But there is no clarity on what these categories could be.
All the previous Law Commissions, except the fifth one, were headed by Judges, either serving or retired. The fifth Law Commission was chaired by KVK Sundaram, ICS, between 1968-71.
The notification also offers no clue as to how the part-time Members/Consultants are to be appointed, who could qualify to be one. Generally, senior advocates are considered for appointment as part-time members.
The terms of the 21st Law Commission are of considerable significance, and it is inexplicable how the Government delays appointment to the Law Commission, even while it, in other forums, is eloquent about their importance to governance. They are:
Review/Repeal of obsolete laws
Law and Poverty
Keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands of the times;
Examine the existing laws in the light of Directive Principles of State Policy and to suggest ways of improvement and reform, and suggest legislations necessary to implement DPSP, and to attain the objectives set out in the Preamble of the Constitution.
Examine the existing laws to promote gender equality, and suggest amendments thereto.
Revise the Central Acts of general importance so as to simplify them and to remove anomalies etc.
The remaining details of the terms of reference can be read here.
Although each Law Commission since 1955 had three-year tenure, it is perhaps for the first time that the Commission has been headless (and even body less) for nearly six months since its constitution.
The Law Commissions since 1955, have submitted 262 Reports so far to the Government, on various subjects. The last report, submitted on 31 August 2015, by the previous chairperson, Justice AP Shah, had recommended immediate abolition of death penalty for all purposes, except terrorism-related cases.