DR.RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2014-15

BASIC OF LEGISLATION

Final Draft

Role of law commission of India

Submitted To:- Submitted By:-

Mr.Shashank Shekhar Shalini Dwivedi

(Asst.Professor) Roll No:- 121

Dr. RMLNLU B.A.L.L.B(Hons.) 2nd Semester

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ACKNOWLEDGEMENT

I would like to extend my sincere thanks to

My teacher Mr. Shashank Shekhar for giving me this wonderful

Opportunity to work on this project and

For his able guidance and advice,

Dean (Academics), Professor C.M. Jariwala

For his encouragement and enthusiasm

My seniors for their valuable tips and;

My classmates for their constant support.

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RESEARCH METHODOLOGY

METHOD

This research is based on doctrinal method i.e. based on book articles and web sources which are

available for the topic. This is an analytical and explanatory research work.

SOURCES

The secondary sources used in the study of this Case were-

Articles

Journals

Books

Websites

Any other source

TABLE OF CONTENTS

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1. Introduction...............................................................................................................5

2. Evolution of Law Commission in India.........................................................................6

3. Working of the Law Commission.................................................................................6

4. Role of Law Commission in legal reform in India..........................................................7

5. Power and functioning of law commission of India........................................................9

6. Law Commission of India proposes wide-ranging changes to the country’s

arbitration regime....................................................................................................11

7. Composition..............................................................................................................14

8. Importance................................................................................................................14

9. Conclusion.................................................................................................................15

10. Bibliography..............................................................................................................16

INTRODUCTION

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Law Commission of India is an executive body established by an order of the Government of

India. Its major function is to work for legal reform. Its membership primarily comprises legal

experts, who are entrusted a mandate by the Government. The Commission is established for a

fixed tenure and works as an advisory body to the ministry of law and justice.

The first law commission was established during the british regime in 1834 by the charter act of

1833. After that three more commissions were established in pre-independent India. The first law

commission was established in 1955 for a three year term. Since then nineteen more

commissions have been established. The nineteenth law commission was established on 1

September 2009 under the Chairmanship of a justice P. Venkatarama Reddy. Its tenure has been

fixed till 31st August 2012. The 20th law commission was established in 2013 under chairmanship

of Judge of Supreme Court D.K Jain. Its tenure has been fixed till 2015. The term of reference of

the 20th Law Commission include review or repeal obsolete law, examine the existing laws,

revise central acts of general importance etc. In November 2013 the centre appointed former

Chief Justice of Delhi High Court Justice Ajit Prakash Shah as the New chairman of 20 th law

commission of India in place of D.K. Jain who has taken over as president National Consumer

Disputes Redressal Commission, Shah will have three-year tenure and has been saddled with a

wide terms of reference including one to examine existing laws from the gender equality

perspective and suggest necessary amendments.

Evolution of Law Commission in IndiaThe origin of the first Law Commission of India lies in the diverse and often conflicting laws

prevailing in the local regions and those administered by the East India Company, which was

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granted Royal Charters and also conferred powers by the various Indian rulers to administer and

oversee the conduct of the inhabitants in the local areas where the company exercised control.

During this period of administration by the Company, two sets of laws operated in the areas; one

which applied to and in relation to British citizens and the second which applied to the local

inhabitants and aliens. This was considered as a major stumbling block for proper administration

by the British Government during the times which is now known as the British Raj. In order to

improve the law and order situation and also to ensure uniformity of legal administration, various

options were looked for. Until then the British Government had been passing various enactments

to deal with particular situation, such as the prohibition of Sati in 1829 by Lord William

Bentinck under the influence of Raja Ram Mohan Roy. However it was for the first time in 1833

that the idea to establish a Law Commission for a comprehensive examination of the existing

legal system prevailing in the British administered areas and it’s overhaul was instituted.

Working of the Law CommissionThe Law Commission works in close co-ordination and under the general instruction of Ministry

of Law and Justice. It generally acts as the initiation point for law reform in the country.

Internally, the Law Commission works in a research- oriented manner. Employing a number of

research analysts, the commission works upon the assigned agenda and primarily comes up with

research based reports, often conclusive and recommendatory. The permanent members of the

Commission generally are responsible for framing the exact topic and reference to work upon

and often take the services of eminent law experts and jurists who are familiar with the matter

under review. These experts may either work part- time with the Commission or may have been

requested to contribute to specific reports or issues under review.

According to the Commission’s websites, the Commission’s regular staff consists of about a

dozen research personnel of different ranks and varied experiences with small group of

secretarial staff looks after the administration side of the Commission’s operations and the

internal functioning of the Commission can be described as a process with the following stages;

Initiation of projects at the Commission’s meetings;

Discussion of the priorities; identification of topics and assignment of preparatory work

to members;

Adoption of methodologies for collection of data research;

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Outlining of problems and determination of areas for reforms;

Consultations with public, professional bodies and academic institutions;

Evaluation of response and preparation of draft of report;

Discussion and scrutiny of report, leading to its finalization; and

Forwarding of report to the ministry of law and justice.

Once the report is submitted to the ministry of Law and Justice, the task of the commission ends

unless it is required to rework upon identified areas of provide clarifications by the government

on the report submitted. Upon receipt of the report, it is the responsible for follow-up action on

the recommendations made by the Commission in the report. Generally the ministry of law and

justice forwards the report with its remark to other relevant ministries in the Government of India

and seeks from them their opinion on the relevance of the recommendation and finalizes with

them the manner of implementation of these recommendations. When the proposals are cleared

by the various Ministries and approved by the cabinet, the ministry of Law and Justice goes for

drafting of the implementing legislation or follows the draft submitted by the Law Commission

and presents the same for approval before the Parliament.

Role of Law Commission in legal reform in IndiaThe Law Commission of India, though an ad hoc body, has been key to law reform in India. Its

role has been both advisory and critical of the government’s policies. The supreme court of India

and academia have recognized the commission as pioneering and prospective. In a number of

decisions, the Supreme court has referred to the work done by the commission and followed its

recommendations. The facts that the chairman of the commission is generally a retired judge of

the Supreme Court have helped the prominence of the commission.

The Commission reviews judicial administration to ensure that it is responsive so that delays are

eliminated, arrears are cleared and disposal of cases is quick and cost-effective without

sacrificing the cardinal principle that they are just and fair. The Commission seeks to simplify

procedure to curb delays and improve standards of justice. It also strives to promote an

accountable and citizen-friendly government which is transparent and ensures the people's right

to information.

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The recommendations of the commission are not binding on the government. "They are

recommendations. They may be accepted or rejected. Action on the said recommendations

depends on the ministries/departments, which are concerned with the subject matter of the

recommendations." This has resulted in a number of important and critical recommendations not

being implemented. The commission, however, has continued to work upon its assigned tasks.

The power vested in the commission to suo motu take up matters for discussion and submit

recommendations has also worked well to the advantage of India's legal system.[citation needed]

The history of the commission is replete with such recommendations which have been made in

the wake of the hour and where the law has needed change.[citation needed] Further, the

commission has been often returned to review its earlier reports in the wake of changed scenarios

and the aptness of law in such situations. Euthanasia and related issues, in particular, has been

one such area where the commission has been relook the situation at least three times, with the

latest being its 196th report on the topic.

Besides the Law Ministry, the commission has also been requested to work upon specific issues

and submit its views by the Supreme Court on various occasions. The latest in regard has been

the 205th report of the commission which has been prepared in view of the Supreme Court's

request for assistance in determination of "certain legal issues relating to child marriage, and the

different ages at which a person is defined as a child in different laws." The report stirred a

public debate in India for recommending inter alia, a reduction in marriage age of boys to be at

par with girls at 18, instead of the long continuing 21 and 18 respectively.

With all its past and present works being continuously provided on the internet, the commission

has also provided a firm assistance to legal research in the country. The fact that a number of its

reports have been taken receptively by the various ministries and have been worked upon to

change the legal scenario, is itself an indicator sufficient enough of the role of the commission in

furtherance of law reform in India.

Power and functioning of law commission of India

The Law Commission is empowered to have a few part-time Members and/or Consultants

depending upon the need and on the Approval of the Government. The Terms of Reference of

the Eighteenth Law Commission are as follows:-

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A.   Review/Repeal of obsolete laws:

i.    To identify laws which are no longer needed or relevant and can be immediately

repealed.

ii.   To identify laws which are in harmony with the existing climate of economic

liberalization which need no change.

iii. To identify laws which require changes or amendments and to make suggestions for their

amendment.

iv   To consider in a wider perspective the suggestions for revision/amendment given by

Expert Groups in various Ministries/Departments with a view to coordinating and

harmonizing them.

v.   To consider references made to it by Ministries/Departments in respect of legislation

having bearing on the working of more than one Ministry/Department.

vi. To suggest suitable measures for quick redressal of citizens grievances, in the field of law.

B.        Law and Poverty

i.   To examine the Law which affect the poor and carry out post-audit for socio-economic

legislation.

ii.   To take all such measures as may be necessary to harness law and the legal process in the

service of the poor.

C.   To keep under review the system of judicial administration to ensure that it is responsive

to the reasonable demands of the times and in particular to secure:-

i.   Elimination of delays, speedy clearance of arrears and reduction in costs so as to secure

quick and economical disposal of cases without affecting the cardinal principle that

decisions should be just and fair.

ii.   Simplification of procedure to reduce and eliminate technicalities and devices for delay

so that it operates not as an end in itself but as a means of achieving justice.

iii.    Improvements of standards of all concerned with the administration of justice.

D.  To examine the existing laws in the light of Directive Principles of State Policy and to

suggest ways of improvement and reform and also to suggest such legislation as might be

necessary to implement the Directive Principles and to attain the objective set out in the

Preamble to the Constitution.

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E.  To examine the existing laws with a view to promoting gender equality and suggesting

amendments thereto.       

F. To revise the Central Acts of General Importance so as to simplify them and to remove

anomalies, ambiguities and inequities.

G. To recommend to the Government measure for bringing the statute book up-to date by

repealing obsolete laws and enactments or parts thereof which have outlived their utility.

H.  To consider and to convey to the Government its views on any other subject relating to

law and judicial administration that may be referred to it by the Government through Ministry of

Law & Justice (Department of Legal Affairs).

I. To consider the requests for providing research to any foreign countries as may be referred

to it by the Government through Ministry of Law and Justice (Department of Legal Affairs).

Function of Law Commission in India.

The Commission is constantly on the lookout 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. The Law Commission of India has

forwarded 234 Reports so far on different subjects. As considering 18 th Law commission

there are some exclusive faction. Which are given below:

1.      To identify laws which are no longer needed or relevant and can be immediately

repealed?

2.      To identify laws which are in harmony with the existing climate of economic

liberalization which need no change?

3.      To identify laws which require changes or amendments and to make suggestions for

their amendment.

4.      To consider in a wider perspective the suggestions for revision/ amendment   given   

by   Expert   Groups   in   various   Ministries   / Departments with a view to coordinating and

harmonizing them.

5.      To consider references made to it by Ministries / Departments in respect of legislation

having bearing on the working of more than one Ministry / Department.

6.      To suggest suitable measures for quick redressed of citizens grievances, in the field of

law.

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7.      To examine the Law which affect the poor and carry out post- audit for social-economic

legislation?

8.      Elimination of delays, speedy clearance of arrears and reduction in costs so as to secure

quick and economical disposal of cases without affecting the cardinal principle those

decisions should be just and fair.

9.      Simplification of procedure to reduce and eliminate technicalities and devices for delay

so that it operates not. as an end in itself but as a means of achieving justice.

Law Commission of India proposes wide-ranging changes to the country’s arbitration regime

The Law Commission of India has proposed major amendments to the Arbitration &

Conciliation Act, 1996 (the “Arbitration Act”) in order to remedy a number of perceived

weaknesses and to stimulate growth in Indian arbitration as a platform for dispute resolution. Its

full report is published here. Some of the highlights of the proposed amendments are as follows:

Encouraging Institutional Arbitration

Ad hoc arbitration continues to be the default option chosen by parties arbitrating in India –

especially for domestic arbitrations. There are a number of limitations with choosing ad hoc

arbitration – most significantly, its propensity to be subject to a much greater degree of judicial

control and supervision. Against this background, the Law Commission has strongly endorsed

and encouraged the spread of institutional arbitration in India.

Besides calling on the government to set up more institutions, and encouraging the High Courts

and the Supreme Court to refer matters to institutional arbitration, the Law Commission has

proposed legislative recognition to aspects of arbitration typical of institutional arbitration – such

as by recognizing the concept of ‘emergency arbitrators’. The Law Commission has also

proposed the formation of an “Arbitral Commission of India” to be comprised of representatives

from stakeholders involved in arbitration, to encourage the spread of institutional arbitration in

India.

Court interference in Arbitration

Court interference in arbitrations is a significant concern undermining the advantages of

arbitration in India, partly because of the time taken to dispose of arbitration-related applications

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and partly because of the sometimes inconsistent decisions resulting from different levels of the

court. The Law Commission proposals strive to draw a balance between limiting interference

while allowing courts to support the arbitration process. The proposals include:

the creation of dedicated arbitration benches within the Indian courts to streamline and

improve the consistency of decisions in arbitration-related matters. The Law Commission

has also suggested designating the High Court in each State (as opposed to other lower

courts) to consider all applications relating to international arbitrations;

awarding actual costs of litigation (on a ‘lower pays’ basis) to limit frivolous actions rather

than, as is currently the practice, impose nominal costs; and

imposing strict time limits for initiation of and disposal of proceedings relating to setting

aside arbitral awards and challenging enforcement of arbitral awards.

Appointment of Arbitrators

A significant cause for delay in ad hoc arbitrations in India is the appointment of arbitrators –

which function is delegated under the Arbitration Act to the High Court/Supreme Court. In the

case of SBP v Patel Engineering, the Supreme Court has taken the view that the appointment of

arbitrators is a judicial (as opposed administrative) function, and therefore allowed the court to

consider the validity and enforceability of an arbitration agreement – if challenged. This has

resulted in parties regularly challenging arbitration agreements before the courts at the time of

appointing arbitrators with the aim of using delays endemic in the court process to slow

arbitration proceedings.

In an attempt to combat these delays, the Law Commission has proposed restricting the role of

the High Court or the Supreme Court in such proceedings to carrying out a prima facie

determination as to whether an arbitration agreement is null or void – leaving any complicated

question relating to the validity or existence of the arbitration agreement to be determined by the

arbitral tribunal. The Law Commission has also advocated adopting a similar approach in all pre-

arbitration applications.

Streamlining the Arbitration Process

A common problem with arbitrations conducted in India is the practice to hold a number of short

hearings with adjournments allowed routinely – thereby resulting in protracted timescales. The

Law Commission has proposed measures (such as authorizing arbitral tribunals to impose

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exemplary costs) to discourage adjournments during hearings, and to ensure continuous sittings

of the arbitral tribunal. This is accompanied by a proposal to empower arbitral tribunals, as well

as courts, to award costs on a ‘loser pays’ basis to disincentives frivolous claims.

The proposed reforms also attempt to make Indian arbitration more attractive to parties from an

economic perspective. The Law Commission has recommended the establishment of a model

schedule of fees for domestic and ad hoc arbitrations, based on the fee schedule set by the Delhi

High Court International Arbitration Centre.

Neutrality of Arbitrators

An often-encountered practice – particularly in domestic arbitrations involving government

entities – is the appointment of an employee of the government party as arbitrator. This practice

has been criticized for compromising the neutrality of the arbitration process, albeit it has been

upheld to date by the Indian courts.

The Law Commission has proposed that, save in exceptional circumstances, anyone who has

been an employee, consultant or adviser to a party, or has had business with one of the parties,

will not be allowed to sit as arbitrator in that case.

Interim Relief in Arbitration

The issue of interim relief in aid of arbitration has been a hotly-debated topic in recent times,

most recently due to the decision of the Supreme Court in Bharat Aluminum where the court held

that Indian Courts could not order interim relief in support of foreign-seated arbitrations. Since

interim relief ordered by arbitral tribunals is not enforceable in India, this has left parties to

international arbitrations seated outside India in difficulties where they need interim protection

for assets situated in India.

In order to rectify this situation, the Law Commission has proposed a raft of measures such as:

amending section 17 of the Arbitration Act to allow interim orders passed by an arbitral

tribunal to be statutorily enforceable;

recognizing and permitting enforcement of orders passed by emergency arbitrators; and

Expressly recognizing that Indian courts have the power to grant interim relief in support

of foreign-seated arbitrations.

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Composition

The Commission is headed by a full-time Chairperson and consists of four full-time members

and the Law Secretary and the Secretary Legislative Department as ex officio Member. For the

20th Law Commission, two senior officers of the Law ministry have been included with a view

to achieving better implementation of Law Commission reports. Before finalizing its

recommendations, the Commission needs to consult the law ministry as there had been claims

that views of various stakeholders have not been included. Law Commission works in close co-

ordination and under the general instruction of Ministry of Law and Justice. It generally acts as

the initiation point for law reform in the country. Internally, the Law Commission works in a

research-oriented manner.

Importance

Law Commission of India is an advisory body but has been a key instrumentality in the process

of law reform in India. It has sometimes has been critical of the government policies and has

been recognized by the Supreme Court of India and also the academia as pioneering and

prospective. In a number of decisions the Supreme Court has referred to the work done by the

Law Commission and followed its recommendations.

Conclusion

This project has provided me with the opportunity to get acquainted with role of law commission

of India. The Law Commission takes views from judges, lawyer, Government Departments and

the general public. For any program of law reform the commissioners must weigh up concerns

about limited resources with competing claims for attention. A vibrant, seen and heard law

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commission speaks for a sound legal system. A focused intuitional orientation of the commission

is required. For without such orientation it is apprehended that the commission may culminate

into a snail- motioned set up. It is true that success of a Law Commission depend upon bi-partite

action and response on the part of the government and the commission. A democratic

government should actively response to the law proposals and opinions of the commission which

comes through intense interaction, debate and exhaustive research. Law which is reflective of

public opinion can hardly be overlooked. Commission’s sagacity and intellect is pivotal for

immunizing a convincing law. The commission would come into the right tract and forward

marvelous proposals of legal reforms. Following are some points which should be considered

surrounding the Law commission affairs. I have discussed working of law commission and their

functions etc. In the end, I am really obliged to my teacher for providing me this opportunity to

research on such a topic.

BIBLIOGRAPHY1. en.wikipedia.org

2. lawcommissionofindia.nic.in

3. www.lawyersclubindia.com 

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