Art. 372 provided for the transitional continuance of 'old' laws expecting from the precedent-prone judiciary a juridical radicalism and new international thrust in the light of the constitutional gospel. Alas: hopes proved dupes and law turned enemy to justice save in forensic flash-in-the-pan rhetoric and remedial gimmicks which hardly jolted the socio-economic fabric. The court stood for the status quo and the Commission for moderate does of reform opium. This back-drop serves as an apology for the entropy of the Indian legal order anchored in old values while lisping avant-garde diction.
Indeed the law reforms suggested by the many incarnations of the Law Commission suffer from a genetic disability viz. the refusal to revolutionalize the law to fulfill our historic tryst with socialist destiny because the operational milieu and the tools and technology used belong to the British Indian genre. Crucifixion is certain for Jesus in the Imperial Justice System. Resurrection needs a new dynamic, a deeper awareness of destination and an impatient militancy and heterodoxy which is anathema for the 'robes', the bureaucrats and the jurist elite drawn from the dominant class.
The New Left is yet tongue less; the broad masses, who are the vast consumers, are noisily lost; the progressive pretenders are skin deep in change-showmanship, not soul deep in fundamental mutations in the rule of law. The Law Commission, like the Judiciary, is thus the victim of static skills. Gerontic arts are a pathetic substitute for radicalized artistry. Small wonder, the Commission, like the court and the Executive-Legislative complex, is a distant neighbour of socialist switch-over.
That is why the amendment to the Penal Code, the Procedure Codes, the Limitation Act, et al, stop with crossing the t's and dotting the i's, and keeping within conservative bounds. Where is the law that 'wipes every tear from every eye'? Where is poverty jurisprudence codified? Where is a Common Civil Code or Civil Rights law, which activates fundamental rights and Directive Principles? Where is legislative delivery of processual justice to the people? Why is the cruel Prison Acts, a hundred years old, not replaced by a correctional code, humanely modern?
How come that the Lunacy Act, a lunatic among our laws, seeks to reincarnate as a medieval statute? In our legal system, why does the little man not matter and even our election law is polluted by mammon and communal permissiveness? Why are the deleterious adversary system and the 'appeal disease' on which the bar thrives not washed in legislative acid? And why no codified administrative law is in the offing? Poverty is still a crime, a discriminative disability before 'equal justice' trumpets. Distributive justice is just a joke absent legislative backing!
Gender-justice is still not a code, but a clamour. An obsolete law of evidence, a lexical law of interpretations with weightage for vested interests and property laws, offering oasis for privileged classes and a graveyard for the lowliest and the lost – these and other basic vices of hostile legal heritage survive after death. The truth is that the Indian Law Commission has no vision or mission and is a weak camp follower of common, wealth models. Its real role is of catalyzing the social revolution through law, not playing the part of a moderate, liberal, reform agency.
Its processes, personnel and perspectives are West-bound, poorly imitative and blissfully innocent of the challenges of dynamic change. This criticism goes to the root of the raison d'etre15 of the Central Law (Reform) Commission. The Chairman and members of the successive Commissions have been distinguished. May be, many of the recommendations do credit in a limited way. But where creative mutations and value-loaded originality are the felt necessity, conservative care is a bane and tepid changes a teasing illusion. Too long has the truth of this lie been hidden through the mask of Court and Commission.
Now let's have a look at another problem of the law reform vis-i?? -vis the Law Commission. Its research mode and techniques limited and almost simian in copying what is Anglo-American. Socialist countries are pariahs of the Indian reformer's law. The Commission Secretary is the mastermind, ordinarily a seasoned, senior Law secretariat member; the Chairman, ordinarily a scholarly superannuated Supreme Court Judge and the rest are kindly personages with many virtues and some who need rest after 'life's fitful fever'. When Justice Krishna Iyer was the member of the Law Commission, the outstanding jurist Dr.
Gajendragadkar, was the Chairman. Oftentimes, the Secretary is the Commission and the Chairman its luminous fai?? ade. Sometimes, the others in the team have learning and experience which are essential components of good law-making. But the whole orientation and methodology need a second look, even a shake-up. Some secretaries like Srinivasamurthi and Bakshi have shown great aptitude for research and remarkably wife reading plus forward looking perspective but repressed by a gerontic system, and suffer from a professionally blinkered outlook.
Some Chairman like Gajendragadkar and Mathew have large scholarship and wider legal perspectives. Others have been excellent and experienced but pedestrians. A few like Dr Tripathi are authoritative academics. But what is the operational orientation of the Commission and what the criterion for selection? What we need in not Westminster mintage art in Secretaries and Victorian vintage wisdom in members, if our aim is a secular, socialist republic of swadeshi gauge but a creative genius with a fertile blend of Indian legal heritage, people's commitment and realistic, socialistic sensitivity.
Mere crimson cosmetics are not socialist; copycat transfer of English-speaking legislation is not modernist. There is really no original research in the Law Commission or in the Law Institute or in the high halls of justice. The blame is not on the Commission but on the country. The Commonwealth countries have Law Reform Commissions, so we too have one. From Setalvad to Mathew a great amount of good work, creditable and even worthwhile reform proposals have emanated; but our nation's legislative revolution is beyond their ken sane where English speaking communities have done something forward-looking. Then our Commission bravely adopts.
The researchers of the Law Commission are good material but with poor socialist nationalist background and rise by inevitable seniority in the usual Secretariat spiral. So we should strongly plead for a change here to make the Law Commission an Indian institution willing to tackle Indian legislative pathology with a penchant for dynamic Indian opportunity. The people factor has lost poignant relevance and Law Commissions have become official conventions with none taking note of them more than marginally, which is a pity. This syndrome is due to many causes and a functional audit will unravel the diagnosis and prognosis.
CONCLUSION The Law Reforms Commission of India has 'miles to go' and 'promises to keep'. Modern technology, mafia clout and cultural distortions add to the problems of law reform. The failure of Law Commissions, notwithstanding some great Chairman and talented secretaries and a few powerful reports is not their fault. The crippled law reform bodies are victims of functional limitations, obsolete parameters and methodologies where modern technological research and wide democratic consultations are heresies. And the composition of this coterie is traditionally negative and safely gerontic.
Not the stuff or the process for dynamic, daring, futuropathic legislative legislation revolution! The Commission's D. N. A. is conditioned to be conformist and it has not even statutory autonomy. The indifference of the bureaucracy and the political echelons to the Law Commission and its products is depressing. The denial of operational independence derived form statutory status makes this strategic body a ceremonial device. The parliamentary unconcern for its reports as the finished product of high-minded jurists and social scientists deprives the office of job satisfaction.
The performance sheet of the commission is a weak stream that can never rise higher than the jejune source of authority. The work force under it has no flair for field work, no research training, no social action antecedents, no hope of a career except to wait for promotion in the Law Ministry. The projects undertaken are either the choice of the Government of low priority items in the scale of socio economic transformation. The judges, if consulted, don't respond. The political parties are not consulted in any meaningful manner. The affected people are ignored except rarely.
Social action groups and experts, legislators and academics and common people who suffer legal and illegal injustices are not invited to make proposals. No discussion papers, learned and pointed, are put out. These democratic failings are fatal. The Law Commission of India is far important than its counterparts in the West. We have creative genius here but imprisoned in a system and emasculated so much that Prof Baxi demands its contribution to the Exchequer by its abolition. 16 He writes, "What should be done? Ideally, the LCI should become both a statutory and continuing agency.
Ideally, its composition (both full time and part time) must have the best juristic talent and should have representation from social sciences. Ideally, it should have a multi-disciplinary approach, both at the level of the secretariat as well that of the Commission. Ideally, again, it must engage in a comprehensive, sociologically oriented, systematic programme of reform not just of the layers' law, but of legal institutions and processes. It ought to be a monitoring agency, a planning body, for the future of the Indian Legal System at a national level.
It ought to have national status and prestige as an integrating agency for law reform in India, just as the Planning Commission. 17 Also there is a vital need for a high-powered Law Commission with statutory authority, original jurisdiction, research assistance, functional dynamism and multi-disciplinary composition. The reports of the Commission must be accompanied by draft bills drawn up with the Law Ministry's participation and involvement of other concerned Ministries. Even the parliamentary parties must be consulted actively and substantially and their views authentically incorporated in the reports.
The Soviet Legislative Commissioners do consult experts and others and their reports are almost the finalized form of the legislation. We in India must be able to streamline and rationalize the legislative process and make it less time-consuming. This can be achieved by comprehensive processing intelligently made and democratically drawn up by the pre-legislative institution called the Law (Reform) Commission. The great need is to come down to the common people, rouse their creative response and make them the vicarious law makers of India.
The legislators of today are too busy to be informed, too illiterate to be experts, but their enlightened cooperation is a condition precedent to success. We need not imitate the limitations of the West. We have great talent, immense scholarship, latent creativity, but still we lad behind in low-making suited to the Indian genius and needs of the masses. Hence it could be concluded by citing Australian Law Commission's issue: "The West can teach the East how to get a living, but the East must eventually be asked to show the West how to live.