Provision for a Law Commission

The Charter Act of 1833 played a very important role in shaping and moulding the future course of law making in India. It was considered essential to prepare a code for Criminal law, evidence, contracts, limitation and also codes to regulate the civil and criminal procedure in the whole India by the same legislation. Regarding the intention of the framers of the Act of 1833, Kaye said, "A comprehensive consolidation and codification of Indian Laws was contemplated. 

Empowered the Governor-General to establish a Law Commission of India. The main purpose entrusted to the Commission was to provide a common law and, therefore Sec. 53 provided, "Such laws as may be applicable to all classes of inhabitants, due regard being had to the tights, feelings and peculiar usages of the people, shall be enacted and all laws and customs having the force of law within the territories shall be ascertained and consolidated and as occasion may require amended.

The Commission shall fully enquire into the jurisdiction, powers and rules of the existing courts of justice, police establishments and forms of the judicial procedure, due regard being had to the distinction of cases, religions, manners and opinions prevailing amongst different races and in different parts of the said territories. " Due to these provisions of far reaching consequences Rankin remarked, "Sec. 53 of the Charter was the legislative mainspring of law reform in India".

In his speech of 10th July 1983, Lord Macaulay emphasised the necessity and the underlying principle of codification of Indian Law before the House of Commons thus: "As I believe that India stands more in need of a code than any other country in the world, I believe also that there is no country in which that great benefit can more easily be conferred. A code is almost the only blessing-perhaps it is the only blessing-which absolute Government are better fitted to confer on a nation than popular Government.

"We do not mean that all the people of India should live under the same law: far from it we know how desirable that object is but we also know that it is unattainable. Our principle is simply this-Uniformity where you can have it-Diversity where you can have it-but in all cases certainty. "5 The First Law Commission, 1834: According to the provisions of the Sec. 53 of the Charter Act of 1833, the First Law Commission was appointed in India in 1834 with the fullest powers to inquire and report. It was composed of T. B. Macaulay6 (as Chairman) and four-members, namely, C. H. Cameroon, J. M. Macleod, G. W. Anderson and F. Millet.

The last three members represented Madras, Bombay and Calcutta respectively. Contribution of First Law Commission: As the system of administration of criminal justice was most unsatisfactory; the local government directed the Commission to take its first step to tackle this branch of law. The reason for top priority to draft Penal Code was that the existing criminal law was full of uncertainties and confusion throughout the country. In the Presidencies, the English law of crimes was applied while the provinces of Bengal and Madras followed the Mohammedan law of crimes.

The Province of Bombay followed the penal law under the Elphinstone Code of 1827. The members of the Commission prepared a draft Penal Code which they submitted to Lord Auckland, the Governor-General, on 2nd May, 1837. In forwarding the letter the Commission remarked, "The Penal Code cannot be clear and explicit while the substantive civil law and the law of procedure are dark and confused. "7 Lord Macaulay referred to the Penal Code of India as "a sort of work which must wait long for justice as I well knew when I laboured at it". The draft was also called 'Macaulay Code', as it was drafted by Lord Macaulay.

Stokes made the observation, "Besides repressing the crimes peculiar to India such as Thuggee, dedicating girls to a life of temple-harlotry, human sacrifices, burning of widows, gang robbery, sitting dharna etc. " In the words of Fitz James Stephen, Lord Macaulay's great work was far too daring and original to be adopted at once, and it is not surprising that the period of gestation was prolonged. It did not become law till 1860. After its first successful step, the Law Commission started to gain the velocity and it went on with its onerous task of codifying the laws for India.

As a result it is still continuing to suggest the Government and help to come out with a good law. Chapter-2 LAW COMMISSION AFTER THE INDEPENDENCE Post-independent Problems: After independence of India in 1947 and India becoming a Republic in 1950 under the new Constitution, the problem of law revision arose in new form. When India became independent, the old laws prevailing in the country were not abrogated. Art. 3728 was enacted to maintain the legal continuity and to avoid creation of a vacuum in the area of law and justice which would have arisen had the old law been repealed.

But then the problem of making suitable adjustments therein began to be felt acutely. 9 In India, several pieces of legislation have remained unrevised for long. These statutes have fallen out of date. For example, the India Evidence Act has been there for nearly a hundred years without any substantial amendments. It began to be felt that there was a great need to modernize the old law so as to bring it in conformity with the socio-economic needs of the contemporary society and the latest trends in jurisprudential thinking in India and abroad.

A major problem in independent India has therefore been that of adapting the old colonial law to the needs and demands of the new independent era. The social goals of British in India were fundamentally different from the goals cherished by modern India as laid down in the Directive Principles. While the main concern of the British rulers was to maintain law and order in the country, in Independent India efforts are being made to create an egalitarian society, a society based on equality and socio-economic justice.

This has made it inevitable that the laws be examined to see what changes they should undergo so that new social goals and objectives would not only be achieved but accelerated. The Directive Principles of State Policy (hereafter in referred to as DPSP), though not enforceable as such by the courts, are yet constitutional norms which are to be observed and implemented through legislation and administration. Further, the Indian Constitution contains a Chapter on Fundamental Rights.

Consequently, after 1950, cases started coming before the Courts challenging one legal provision or the other as unconstitutional because of its conflict with some Fundamental Rights. 10 It was thus felt necessary to scrutinize the laws to see how far they were in conformity with the Fundamental Rights and the DPSP, and to do away with any dichotomy which might be revealed as a result of this scrutiny. There was also the question of examination of the machinery of justice so as to make justice cheap, avoid delays therein and make it accessible to the poor as well.

The independent India was faced with the need of a through-going revision, amendment, consolidation and reconstruction of the system of law and justice inherited by it from the colonial days. It was felt that these tasks could be achieved effectively by a compact and expert body. Formation of First Law Commission: On Dec. 2, 1947, Dr. Hari Singh Gaur moved a resolution in the Constituent Assembly (Legislative) recommending the establishment of a statutory law revision committee. The resolution was withdrawn on Dr.

Ambedkar, the then Law Minister, giving an assurance that the Government would device some suitable machinery for revising laws. The matter was raised again in the Lok Sabha on June 27, 1952 and Law Minister C. C. Biswas gave an assurance that the Government recognized the task of law revision as being of vital importance. On July 26, 1954, the All-India Congress Committee resolved that "a Law Commission should be appointed as in England to revise the laws promulgated nearly a century back by the Law Commission of Macaulay and to advise on current legislation from time to time.

"11 Finally, on November 19, 1954, the Lok Sabha discussed a non-official resolution to the following effect, "this House resolves that a Law Commission be appointed to recommend revision and modernization of laws, criminal, civil and revenue, substantive, procedural or otherwise and in particular, the Civil and Criminal procedure Codes and the Indian Penal Code, to reduce the quantum of case-law and to resolve the conflicts in the decisions of the High Courts on many points with a view to realize that justice is simple, speedy, cheap, effective and substantial. "12

The Government of India accepted the principle underlying the resolution regarding appointment of a Law Commission. On 5th August, 1955, the Law Minister C. C. Biswas announced in the Lok Sabha the decision of the Government to appoint a Law Commission and also the tasks of the Law Commission as follows: (a) to review the system of judicial administration in all its aspects and suggest ways and means for improving it and making it speedy and less expensive; (b) to examine the Central Acts of general application and importance, and recommend the line on which they should be amended, revised, consolidated or otherwise brought up to date.

The Government of India appointed the First Law Commission of Independent India in September, 1955, with the then Attorney-General of India, Mr. M. C. Setalvad, as its Chairman. The reports submitted by First Law Commission have been attached as Annexure I. 13 Since then sixteen more Law Commissions have been appointed, each with at three-year term and with different terms of reference. The list of the Chairman who presided over the Commissions and their respective years has been attached as Annexure II.

14 How does the Commission function? The Commission's regular staff consists of about a dozen research personnel of different ranks and varied experiences. A small group of secretarial staff looks after the administration side of the Commission's operations. Basically the projects undertaken by the Commission are initiated in the Commission's meetings which take place frequently. Priorities are discussed, topics are identified and preparatory work is assigned to each member of the Commission.

Depending upon the nature and scope of the topic, different methodologies for collection of data and research are adopted keeping the scope of the proposal for reform in mind. Discussion at Commission meetings during this period helps not only in articulating the issues and focusing the research, but also evolving a consensus among members of the Commission. What emerges out of this preparatory work in the Commission is usually a working paper outlining the problem and suggesting matters deserving reform.

The paper is then sent out for circulation in the public and concerned interest groups with a view to eliciting reactions and suggestions. Usually a carefully prepared questionnaire is also sent with the document. The Law Commission has been anxious to ensure that the widest sections of people are consulted in formulating proposals for law reforms. In this process, partnerships are established with professional bodies and academic institutions. Seminars and workshops are organised in different parts of the country to elicit critical opinion on proposed strategies for reform.

Once the data and informed views are assembled, the Commission's staff evaluates them and organises the information for appropriate introduction in the report which is written either by the Member-Secretary or one of the Members or the Chairman of the Commission. It is then subjected to close scrutiny by the full Commission in prolonged meetings. Once the Report and summary are finalised, the Commission may decide to prepare a draft amendment or a new bill which may be appended to its report.

Thereafter, the final report is forwarded to the Government. It is obvious that the success of the Commission's work in law reforms is dependent upon its capacity to assemble the widest possible inputs from the public and concerned interest groups. The Commission is constantly on the look out for strategies to accomplish this goal within the limited resources available to it. In this regard the media plays an important role which the Commission proposes to tap more frequently than before.