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

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 TABLE OF CONTENTS

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

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 INTRODUCTION
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 20th 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.

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Evolution of Law Commission in India
The 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
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 Commission

The 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;

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  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;
 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 India

The 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

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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.

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

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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:-
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.

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 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.
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 18th Law commission
there re 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.

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 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.
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
hocarbitration – 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
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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
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

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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
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:

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  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.

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.

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 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
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.

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BIBLIOGRAPHY
1. en.wikipedia.org

2. lawcommissionofindia.nic.in

3. www.lawyersclubindia.com

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