Report No. 114
2.5. Approach of the Present Law Commission.-
As the next Chapter illustrates in detail, the Eleventh Law Commission has already taken into account, rather fully, the constructive advice on law reform processes and tasks offered by Dr. Baxi. But in this chapter we consider it necessary to broadly outline the approach that the Eleventh Law Commission proposes, generally, to adopt. First, this Commission feels it necessary to state that law reform and revision to be fully informed by the constitutional perspectives emanating from the Preamble, Fundamental Rights and Duties, and the Directive Principles of State Policy enshrined in the Constitution of India. Article 39A provides a succinct charter of law reforms for India. Our present Report identifies how this article can provide fresh points of departure, and of arrival, in the process of conceiving law reforms and, hopefully, in the process of the implementation of law reform proposals by the Government.
Second, the Commission believes that legal order is an inestimable resource for national development, the unity and integrity of the Nation, and for the pursuit of the lofty ideals enunciated by the Preamble of the Constitution of India. Cynicism concerning the nature and future of law and the capabilities of the law its processes and institutions in protecting and promoting these values is we think constitutionally forbidden. Every act of purposeful law reform must be regarded as an act of investment in the regime of constitutional democracy.
Third, the perambulatory recital of a "socialist, secular, democratic, republican" India created by the Constitution, necessarily implies that law reform must be a participatory affair. All affected interests must be adequately consulted. Law reform, as Dr. Baxi has reminded us, must not be conceived merely as a sectorial affair involving merely the reform of the lawyer's law.1 Laws affect people and it is people whom we must consult in the law reform process.
And people include more categories than lawyers, judges and administrators, indispensable and valuable though their participation is the consumers of law, its beneficiaries, as well as the victims of the administration of laws and justice must have a voice, a say in the process of the formulations of the law reform proposals. In one word, such proposals must be formulated with the widest possible participation. Law reform must be a truly participatory process.
Fourth, this Commission believes that simultaneously with reform of substantive and procedural laws, its task, constitutionally conceived, requires it to formulate changes in the institutions of the law as well. Normative revolutions without corresponding institutional renovation create merely 'symbolic' reform exercises and earn, through unfulfilled expectations, for the processes and institutions of law reform a just measure of cynicism and contempt in course of time.
This, in turn, rubs off to the symbolism of the law itself creating exorbitant social costs including disrespect for the law which a developing nation like ours simply cannot afford. Fifth, and for the same reason, the Commission would like to urge the Government of India, and Parliament, to evolve time-bound procedures for consideration of the Commission's reform proposals. This would include a prompt publication and dissemination of its reports and a set of time-bound procedure for inter-ministerial consultations.
Sixth, as its further contribution to the elaboration of these procedures, the Commission declares its willingness to associate itself with the process of ministerial and inter-ministerial considerations, communication of the Commission's points of view, beyond the printed word, to the ministries responsible for responding to its proposals is vital to the process of law reform. This procedure should not merely help expedition but also assist a wider dialogue within the Government for the maturation of the law reform processes and proposals. As a related aspect, the Commission itself will, in the process of formulation of the proposals, seek consultation with the Governments of the States and Union territories and law reform commissions, and other related centres of decision-making across the country.
Seventh, law reform, conceived as a process of systemic change, will require some degree of co-ordination in the future. While it is true that the Commission can never, even when its present meagre resources are astronomically increased, become an exclusive body for preparing law reform proposals, there is need to accord some consultative status to the Commission when other law reform committees are set up by various Ministries, especially when these involve structural changes in the legal system. Such a consultative status will ensure that the best advice of the Commission is available to other law reform committees, mostly task-bound and ad hoc in nature.
It will also provide to the Commission sources of learning and experience in diverse areas, which ultimately are related to the structural renovation of the Indian Legal System. We urge the Government to consider this suggestion will the urgency and seriousness it so obviously merits. The Commission must gracefully acknowledge the beginning made in this direction when Reports of Justice Mulla Committee on Jail Reforms has been forwarded to it for comments, analysis and method of implementation.
Finally, (without being exhaustive) since all changes affecting legal system involve outlays of expenditure, it will be necessary for the Commission to always prepare a first draft, as it were, of the magnitude of the investment needed. The Commission, naturally, hopes to receive the fullest co-operation of the Ministry of Finance by way of advice in this connection. By the same token, law reform should be viewed as a dynamic component of planning. There is need for according some consultative status to the Commission both in the Planning and the Finance Commission.
1. See U. Baxi The Crisis of the Indian Legal System, (1982), pp. 255-259.