Report No. 14
32. Law Reform and Legislation
1. The role of a permanent Law Commission: views of Lord Macaulay.-
The need for a constant scrutiny of the law by a body permanently constituted for the purpose was envisaged as far back as 1837 by Lord Macaulay in his letter to Lord Auckland presenting the first part of the Indian Code. Referring to the questions which might be raised in regard to the construction of the Code he stated:
"Such questions will certainly arise, and, unless proper precautions be taken, the decisions on such questions will accumulate till they form a body of law of far greater bulk than that which has been adopted by the Legislature * * * * it is most desirable that measures should be taken to prevent the written law from being overlaid by an immense weight of comments and decisions. * * * * All the questions thus reported to the Government might with advantage be referred for examination to the Law Commission, if that Commission should be a permanent body.
In some cases it will be found that the law is already sufficiently clear, and that any misconstructions which may have taken place is to be attributed to weakness, carelessness, wrongheaded ness, or corruption on the part of an individual, and is not likely to occur again. In such cases it will be unnecessary to make any change in the Code. Sometimes it will be found that a case has arisen respecting which the Code is silent. In such a case it will be proper to supply the omission. Sometimes it may be found that the Code is inconsistent with itself. If so, inconsistency ought to be removed. Sometimes it will be found that the words of the law are not sufficiently precise.
In such a case it will be proper to substitute others. Sometimes it will be found that the language of the law, though it is precise as the subject admits, is not so clear that a person of ordinary intelligence can see its whole meaning. In these cases it will generally be expedient to add illustrations such as may distinctly show in what sense the Legislature intends the law to be understood, and may render it impossible that the same question, or any similar question, should ever again occasion difference of opinion. In this manner every successive edition of the Code will solve all the important questions as to the construction of the Code which have arisen since the appearance of the edition immediately preceding.1
1. Cited by Acharya Codification (Tagore Law Lectures), pp. 142-143.
2. Need for periodical revision of laws.-
Speaking of the need for constant revision and re-enactment of the various laws, Sir James Stephen stated in 1872 that such a course was " as necessary as repairs are necessary to a railway. I do not think that any Act of importance ought t9 last more than ten or twelve years. At the end of that time, it should be carefully examined from end to end, and whilst as much as possible of its general frame work and arrangement are retained, it should be improved and corrected at every point at which experience has shown that it required improvement and correction If you want your laws to be really good and simple, you must go on re-enacting them as often as such a number of cases are decided upon them as would make it worth the while of a law book seller to bring out a new edition of theme"1.
1. Gazette of India, Supplement, 4 May, 1872, p. 514
3. Position in England.-
Nor is the need for such constant scrutiny and revision confined to countries with a codified system of laws. The need has also been felt in England and other countries where a great part of the law is unwritten. It was in 1836 that Lord Langdale, Master of the Rolls, emphasised the importance of constant revision of the laws. He said:
"It will be admitted that it is the first duty of Government to provide for the due administration of justice * * * *. But justice * * * * depends on the law, and it becomes necessary for the Government to take care that the law, on which justice in its practical application depends, is in as good a state as the advancement of knowledge, the state of society and other circumstances will permit. The constant fluctuation of all human affairs * * * makes it absolutely necessary * * * that such corresponding changes as wisdom and experience may sanction should from time to time be made in the law1".
1. Cited in the Law Quarterly Review, Vol. LXIX, 1951, "' 60-61.
After deploring the fact that the Chancellor, upon whom the duty devolved, found it utterly impossible to perform it and the absence of a Minister able to bestow time on the subject, he went on to say:-
"Every Government has struggled with the difficulty, and at times even attempted to dissemble it; but the present arrangement of the offices does not afford to the executive Government and to the legislature such regular and constant information respecting the state of the law, the proceedings and situation of the courts, and all other matters relating to the administration of civil and criminal justice, nor such assistance in the preparation of new laws, as may afford the best guide to safe and useful improvement, and the most secure check to rash and ignorant proposals to change1".
4. Periodical revision necessary in India.-
In our country, the third Law Commission presided over by Lord Romilly again emphasised the need for a vigilant scrutiny of the law from time to time for the purpose of resolving the difficulties that have been noticed in its working and with a view to the clarification of all matters of doubt. The Report stated:
"For the prevention of this great evil the enacted law ought, at intervals of only a few years, to be revised and so amended as to make it contain as completely as possible, in the form of definitions, of rules, or of illustrations, everything which may from time to time be deemed fit to be made a part of it, leaving nothing to rest as law on the authority of previous judicial decisions. Each successive edition after such a revision should be enacted as law, and would contain, sanctioned by the Legislature, all judge-made law of the preceding interval deemed worthy of being retained. On these occasions, too, the opportunity should be taken to amend the body of law under revision in every practicable way, and especially to provide such new rules of law as might be required by the rise of new interests and new circumstances in the progress of society".1
1. Report dated 23rd June, 1863, Gazette of India, Extra., July 1864, p. 56.
5. Need for special body for law revision.-
The question of the appropriate machinery which could be entrusted with this important duty of revision of the law from time to time was considered by Acharya in his Tagore Law Lectures for the year 1912. He stated:
"A Permanent Law Commission or a Ministry of Justice is essentially necessary for further codification in this country for various reasons: (a) If codification is to be done well, it must be done by experts whose time is valuable. The case is not as though the Indian Legislative Department had nothing to occupy itself with except codification. 'Even if it were to leave this work undone it would still remain the hardest worked of all the Indian departments. It could not do more without strengthening its staff or seeking extrinsic aid".1
The Permanent Law Commission will render this extrinsic aid. (b) Such a Commission or Ministry of Justice will supply the improved machinery to work new materials into the codes during the interval between periodical revisions. (c) Such a Commission is necessary for receiving complaints against the law, because cases of hardship continually occur that never enter courts of Justice, and defects in the law are often suggested to lawyers in private practice, by cases neither in court nor in hand, which they forget in the hurry of business, but which might be made available for law reform if there is a Commission to which they might be notified".2
1. Ilbert's Legislative Methods and Forms, pp. 151-152.
2. Tagore Law Lectures Lecture IX-Feasibility of Further Codification in British India, pp. 314-315.
6. Earlier attempts.-
Efforts have been repeatedly made during the British days, to set up in India, a body designed to bring about the needed revision of the law.
Statutes Law Revision Committee.- As early as 1921, a Statute Law Revision Committee consisting of the then President of the Council of State as Chairman and six members of the Legislature was established. Its task was limited to preparing for the consideration of the Government "measures of consolidation and clarification as might be necessary to secure the highest attainable standard of formal perfection in the Statute Law of India." It was also intended that the Committee should be a permanent and independent body which would also assist the Government in effecting necessary reforms from a purely legal point of view. The Committee continued to work till about 1932. It succeeded in consolidating the law relating to merchant shipping, criminal tribes, succession, forests and torts; but, gradually, the Committee ceased to function effectively. The Government did not avail of the services of this Committee when they took up more important measures for codification and consolidation.
7. Proposals for creation of such a body.-
In 1925, Dr. Gour moved a Resolution recommending to the Governor-General-in-Council to take steps for the appointment of a Law Commission. The proposal, however, failed to find support. In 1947, a Resolution was moved by him in the Constituent Assembly to the same effect, but it was withdrawn on the assurance given by the then Law Minister.
8. Recommendations of the Rankin Committee.-
The Rankin Committee referred to the need for the constant revision of laws in the following words:-
"For our purposes it is beyond question that the most useful recommendation to be made is that the codes we have should be revised carefully and at frequent intervals. Here there is much to be gained and daily difficulties can be removed. The best code must necessarily produce a crop of new litigation. The existing codes cover a very large area and in amending them it is possible to know within limits what one is doing".1
1. Civil Justice Committee Report, p. 536, para. 5.
9. Law revision abroad.-
Measures have been taken in other countries to constitute bodies for the purpose of revising the laws from time to time.
In New York State.- A Law Revision Commission, a full-time salaries body, was set up in New York as far back as 1934. It appears to have done extremely useful work in examining the laws already enacted and has, from time to time, made reports recommending a large number of legislative changes. Indeed, the legislative machinery of the State has not found the time to carry out all the suggestions made by the Commission which is still functioning.
In the United Kingdom.- A Law Revision Committee was set up in the United Kingdom in the year 1934. Its function was "to consider how far, having regard to the statute law and to judicial decisions, such legal maxims and doctrines as the Lord Chancellor may from time to time refer to the Committee require revision in modern conditions". In practice, however, the Committee, like its post-war successor, chose subjects for its consideration with the approval of the Lord Chancellor and enunciated certain recommendations most of which were accepted and enacted into statutes.
A similar Committee called the Law Reform Committee was appointed in 1952 "to consider, having regard especially to judicial decisions, what changes are desirable in such legal doctrines as the Lord Chancellor may from time to time refer to the Committee". Its labours have resulted in the enactment of some legislation. It may be mentioned that the activities of those committees were not confined to suggesting changes in the existing laws. It was open to them to suggest legislation in fields not covered. Suggestions of this character made by them have also been put on the Statute Book.
10. Function of such a body-establishment desirable.-
It is unnecessary to emphasise the imperative need for the establishment of a permanent body of the nature indicated in India not only for the purpose of revising laws in the manner discussed above, but for the purpose of consolidating, co-ordinating and re-modelling them in the light of modem legal concepts.
