The Dynamics of pre-legislative processes

"Long years ago we made a tryst with the destiny, and now the time comes when we shall redeem or pledge, not wholly or in full measure, but very substantially… A moment comes which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance" intoned Jawaharlal Nehru, as India awoke to freedom from the stupor of colonialism.

Emergent social justice to the millions, equal law-in-action and access to justice for the haves and the have-nots burying 'five fathoms deep' the old feudal iniquities and sub-human lifestyles, and the dawn of a value revolution of dynamic humanism, realistic secularism and democratic-socialist positivism —these immediate imperatives were to be attained, not by oligarchic fiat or dikhat, but by sensitized legislative mandates, breaking away from the anathematic past and transforming old institutions and processes of State into a new goal-oriented activism of laws.

Towards Destination Swaraj through laws, was thus a summons to law-makers to undertake an Himalayan legislative adventure to translate the Preambular pledge of the Constitution into the realities of the corpus juris of Bharat. The journey was long but the direction was clear, legislated law being the means and social justice the end. The nascent grammar of Indian Law Reform desiderated a liberationist thrust; for, Third World countries needed a militant mood to break the old legal chains, not to bow before it with Bhakti.

The Law Commission and its functional relevance must be viewed in this iconoclastic context, the task being terribly difficult because 'old bottles and new wine' may be an experiment in the self-condemned process of traditional means stultifying radical ends. The Law Commission itself is, in the Indian social laboratory, an orthodox instrument of old-world jural acrobats expected to perform a revolutionary pre-legislative circus, sans a progressive vision, and suffering from a pathological inhibition about the egalitarian transformation hitherto condemned as dangerous.

The members, often erudite souls, burdened by the 'old testament', without a glimpse of the crimson gospel, were credulously appointed the midwives of a New Order struggling to be born. Such a built-in between process and purpose was inevitable where the cadres of change were but liberal missiles with moderate targets. An uninhibited know-how and value-illumined structural design were the need if the hunger for justice of the masses was the justification and power behind radical reform.

The Central Government never displayed such a grave concern for fundamental re-writing of the statute book and was moved by no ideological criteria in choosing members of the Commission who were, at best, luminous liberals in the law allergic to the socialist shake-up of lawyers' law. Moreover, the colonial intellectualism and feudal perspectivism of the establishment inhibited the 'learned' legal profession from dialectical legislative perceptions and explosively scientific advances and their massive impact on the march of the law.

This critical gap between the obsolescent black letter law and the current cry for a modernized, creative legislative transformation of the social order hobbles the Law Commission and made a militant jurist like Prof. Baxi lash out: "India today bristles with a sense of injustice. I think future historians will think of us as heroic in our endeavour to preserve, promote and protect justice. And the country will burn tomorrow and the day after when our callous insistence on such injustice meets with the desperate daring of the victims.   

What with the watershed of Imperial Law having been crossed and a consequential paradigm shift compulsive, the Parliament tried to keep ambivalent faith with the Founding Deed and created, by a dubious Resolution, the Central Law Commission as a British imitation. The Law Commission of India was born on August 1955 even though the demand for it came at the stage of Constitution-making. The generic code of the Law Commission had no disturbing composition despite the recognition that British Indian jurisprudence was out of date and out of tune with people aspirations.

The Central Government did not give any statutory autonomy for the law reform body and treated it as an appendage to the Ministry of Law. One could plainly see that there was no intention to jettison Macaulay or Stephen. Even Nehru conceived of the Commission as designed to make changes in the law in "bits and parts" and not in re-designing the "whole scheme of things". The resolution creating the Commission mentioned the need for "simple, speedy, cheap, effective and substantial justice".

It was a Lawyers' Commission rather than a Law Revolution Commission. It was packed with safe men like retired justices of the highest court or High Courts, lucrative lawyers, learned jurists and some bureaucrats. Political considerations in appointments and in operations were in evidence vis-a-vis the Law Commission. Retired judges are never revolutionary stuff and "We, the People of India" never disturbed their mentations.

Moreover, there was a hiatus between the past tense and the future tense in the law making process, because judges looked backwards for precedents, bureaucrats and lawyers looked across the Atlantic for Anglo-Americans examples, while the historic tryst with Indian destiny clearly required radical cadres of a different mould. Without casting any reflection on the outstanding abilities and learning of some of the Chairmen and members of the Commissions, one might safely venture to say that conventional reforms were all that was expected, and for this limited purpose, the eminent incumbents filled the bill.

The nation pays the price of legislative slow-motion where the legal system continues its oppressive role because of the poor vision of Government responsible for the poor vision of Government responsible for the creation of the Law Commissions. Research Methodology: The completion of this paper on "Indian Law Commission" is wholly and solely based on books and materials. Basically books of Indian and Constitutional history like J. K. Mitthal3 and M. P. Jain4. Crucial analysis of the materials available and with the help of Law Commission site, this project aims to be a big time success.