Context

There are reports that the cabinet will take a call on reconstituting the Law Commission. 

Background

1. The Law Commission of India is the oldest amongst the national-level parastatal bodies.

2. It is a legacy of the country’s colonial past. In 1833, British rulers unified the three presidencies and planned to enforce the English common law in “British India”. For this, they constituted many law commissions. 

3. After the fourth commission completed its work towards the end of 19th century, they did not continue the exercise.

4. The first commission was 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. The same pattern was then irrationally adopted as the fixed term for the commission for all time to come.

5. Each of the later commissions worked for less than three years, leaving their assigned work half way.

Ad Hoc nature of Law commission

1. It has no fixed composition, no defined eligibility criteria for its chair and members, and no set functions as everything rests on the government’s will. 

2. The terms of reference are specified afresh each time it is reconstituted as if it were an ad hoc body. 

3. Three of the other national commissions for the Scheduled Castes, Scheduled Tribes and Backward Classes, are now regulated by the Constitution and there are laws for each of the national commissions for human rights, minorities, women, children and safai karmcharis.

4. Though the commission’s job requires research-oriented juristic learning, the commission has been a haven for retired judges. 

5. 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. 

6. Independent India initially maintained the tradition by appointing the distinguished jurist M C Setalvad as the chairman of its first Law Commission. 

7. The policy was later changed, and with the exception of K V K Sundaram, the commission has always been headed by judges.

8. Members of the commission are also generally drawn from the judiciary, and the member-secretary is always from the bureaucracy. 

9. Reports of the commission are generally written individually by members including the chairman and placed before the full commission for discussion and adoption. 

10. Few of these reports have been on the Hindu and Christian family laws, but none on the Muslim personal law. Mostly because of backlash against an all Hindu commission.

Way ahead

1. 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.

2. It must be placed under a proper parliamentary charter. 

3. It should be a predominantly jurists’ commission, not a retired judges’ collective.