By
Prof. S. VENKATARAMAN, B.A., M.L.
(College
of Law, Waltair)
The
Indian Law Commission is now at work. The significance of its constitution and
the important work it will be doing may not be apparent to laymen in particular.
It is not with the structure of the laws alone that the Commission is concerned
but also with the spirit and ideology behind them and the legal philosophy they
reflect. A change over is being made steadily from a capitalistic to a
socialistic pattern of society. Even in England whose laws have been freely
borrowed and imported into this country, the socialistic way of life is in
operation over large fields of activity and the laws are being moulded to suit
such a way of life and society. Law Commissions are not new to this country. No
less than four different Law Commissions had functioned during the British
regime and many of the important laws now on the statute book are the result of
the activities of those Commissions.
Hominum
causa omne jus constitutum: Law is made for man.1
At the same time law has come to be recognised as a
scheme of social control, established by the people, to ensure a durable social
order by social happiness and social perfection through the limitation of
personal liberty for the protection of social needs. Individual freedom has to
be balanced with social duty and the problem is always one of getting the right
balance. It has been the endeavour of law constantly to satisfy human demands
at that maximum which is socially possible. Laws are, therefore,
fashioned to suit the genius of the people and the circumstances
of the time. Legislative projects cannot outstrip public opinion or overstep
the country’s requirements. Since such requirements are not static but are
necessarily changing from time to time, due both to factors inside the country
as well as to the impact of ideas from outside and the phenomenal growth of
business, there cannot be any fixed philosophy underlying the laws of a
country. Legal philosophies are thus perishable articles. Sir George Rankin
mentions how the great German philosopher Hegel spoke to Sapphira the words
which the Apostle Peter addressed to Ananias– “Behold, the feet of them that
shall carry thee out are at the door”
2 –to show that even philosophies are liable to
change. Revision of laws and their reformation thus become imperative. Sir
James Fitzjames Stephen once said: “Such re-enactment will in my judgment be as
necessary as repairs to a railway. I do not think that any Act of importance
ought to last more than ten or twelve years.”
Another
factor necessitating periodical revision of laws is the continuous making of
laws and amendment of existing laws from time to time. Unless the laws are
pruned and consolidated they will not be easily knowable. Even at a time when
the annual production of statutes was about thirty, Mr. Justice Holloway was
constrained to write: “I regard the rapidity with which legislation is now
proceeding as a very great evil. If it continues I do not think that either the
Judges or practitioners, still less the public, will know from day to day the
law which governs them. Statutes unless very carefully constructed do not
afford certainty but doubt, and litigation is not repressed but aggravated by
every fresh enactment.” 3
In other countries law reform and control of
over-legislation is sought to be achieved by various devices. The United States
of America has a democratic Constitution. Its social structure is however
capitalistic. The Supreme Court is the watch-dog of the Constitution. It has
power not merely to test the constitutionality of statutes but also to
invalidate laws which in its opinion are unreasonable. The Supreme Court has
interpreted the Constitution in such a way as to permit of considerable social
control and thereby it has struck a balance from time to time between
individual rights and social requirements. The Judiciary Act of 1925 has
invested the federal courts with much discretion, and through the writ of
certiorari they can scrutinise State and Federal control over trusts, cartels
and combines, over labour and economic questions etc. To lighten at the same
time the burden thus thrown on the judiciary, the Congress has authorised the
establishment of an annual Judicial Commission to be convened at the instance
of the Chief Justice of the Supreme Court, the body being of a composite
character with members from the judiciary, the Attorney-General, and majority
and minority representatives from the Judicial Committees of both houses of the
Congress, where the working of the laws can be reviewed. In Great Britain
parliamentary democracy prevails and there is no judicial review of laws. A
society which was originally capitalistic has now adopted in a large measure the socialistic way of
life. Whenever Parliament has felt that the existing laws have become outmoded
or have to be revised to fit in with the changed conditions of life, it has not
hesitated to appoint a Law Reform Commission to advise it on such measures of
reform as ought to be introduced. Judicial review of the constitutionality of
legislation or of its validity as being reasonable is practically not to be
found in the continental countries. Switzerland is in some measure an
exception. There the Federal Tribunal can adjudicate on the validity of the
cantonal laws. A review of a federal law, where it is felt to be repugnant to
the Constitution, will be possible only through the referendum. In Sweden a
body composed of Judges of the judicial and administrative courts known as
Legard advises the Riksdag or Parliament on matters referred to it by the
Riksdag and such advice is always accepted. In France a body called the
Constitutional Committee keeps watch over the laws to see whether they are
keeping within the bounds of the Constitution. In our country, the
President may, under Article 143 of the Constitution, consult the Supreme
Court, if at any time it appears to him
that a question of law or fact has arisen, or is likely to arise, which is of
such a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court. The scope of the provision is however very
limited. There is no obligation to refer. It is also doubtful if there is any
obligation on the Supreme Court
to answer the reference. Again, any answer given will be concerned only with
the legal aspects of the matter.
Law
Commissions are not new to India. There were four Law Commissions in the past,
in 1833, 1853, 1861 and 1872 respectively. The appointment of each of these was
inspired by different considerations. The Charter Act of 1833 was the
legislative mainspring of law reform in this country. According to Sir George
Rankin it was conceived, in effect, as a project to apply to the heterogeneous
laws of India the principles of Bentham who found all laws to be utterly
defective when tried by the standard of utility. As early as 1772 Alexander
Dow, a military officer in the service of the East India Company, had, in his
‘Enquiry into the State of Bengal’, asserted that to leave the natives to their
own laws would be to consign them to anarchy and confusion, and suggested that
the laws of England should be made to prevail in India, inasmuch as among other
things the measure was calculated to preserve that influence which conquerors
must possess to retain their power. Others had stated that there were vast gaps
and interstices in the substantive law, subjects on which no rules existed. Sir
Henry Maine records: “Nobody who has inquired into the matter
can doubt that before the British Government began to legislate, India was,
regard being had to its moral and material needs, a country singularly empty of
law.”4 It was no doubt true
that before 1833 the law was of a heterogeneous character and in a confused
state. The law had been provided by Acts of Parliament in some matters, by
English Common Law in some other matters, by personal laws in regard to certain
specified subjects, by Charter Acts and letters patent, as well as by
regulations which differed from province to province and which had to be
registered in the Supreme Courts for their validity. All this cannot however
mean that there was, as it were, a legal vacuum in which the British had to
operate. The truth is that the influence of Bentham, the assumption that there
was no law worth the name in India, and the political consideration that the
introduction of English law will enable the English to retain their power and
hold on India, contributed to the appointment of the First Law Commission.
Under the Charter Act, the East India Company had been allowed to govern India
for another 20 years and a Legislative Council to enact laws for the whole of
British India had been created. Lord Macaulay was the chairman of the
Commission.
By
1837 the Commission had drafted a Penal Code and prepared voluminous drafts
upon other titles of the laws. The Commission had however withered after
Macaulay’s departure and no legislation was actually put through. It had also
been realised that two of the recommendations of the Commission could not be
implemented. The Commission had recommended the importation of English law as
the lex fori of the country and the codification of Hindu and Muslim
laws. The Charter Act of 1853 established a Second Law Commission with English
Judges, to sit in England, and draft codes of laws on different topics which it
was expected would be adopted without question by the Legislative Council
functioning in India. The Commission was directed to submit its report within
three years. The ideology behind the Commission’s work is revealed by certain
principles it laid down, namely, (i) a body of substantive civil law was wanted
for British India as a whole, (ii) English law should be its basis, (iii) Hindu
and Muslim personal laws should not be codified by or under a British
legislature, and (iv) save for any exceptions made by the code, it should be
the law applicable to every one. The Second Law Commission was not for the
wholesale importation of English law into India but only to use it as a basis.
The first report of the Commission furnished a draft Criminal Procedure Code
and its second report dealt with the wants of India in respect of substantive
civil law. On 14th December 1861, the Third Law Commission was issued for
preparing a body of substantive civil law for India on the principles laid down
by the Report of 1855. The Commission’s labours resulted in the passing of the
Indian Succession Act in 1865. The Commission presented also the drafts of the
Contract Act on 28-7-1866, the Negotiable Instruments Act on 24-7-1867, the
Evidence Act on 3-8-1868, and the Transfer of Property Act on 28-5-1870. The
Commission resigned in 1870 complaining that its drafts were not being enacted
by the Indian legislature. In 1872, the Fourth Law Commission was constituted,
which revised the drafts already prepared, and there was a spate of
legislation.
The
foregoing survey makes it clear how most of the important Acts now on the
statute book, both in the domain of substantive law as well as of adjectival
law, have come down from the last century reflecting the spirit of British
policy towards a subject nation, and resting on principles of English law
evolved to suit the requirements of a capitalistic
society for the most part. The permeation of English law in India is referred
to by Lord Wright in the following terms: “The enormous
sub-continent of India has adopted, except for family and other racial or
religious law, the Common Law which there regulates the great mass of
dealings between man and man.” Even enactments like the present Civil Procedure
Code and the Limitation Act are nearly 50 years old and have
their roots in laws that operated much earlier. The pattern of society in India
is undergoing reorientation since the country became independent. The
Constitution has decided that India shall be a social welfare State. Article 48
enacts that the State shall strive to promote the welfare of the people by
securing and protecting, as effectively as it may, a social order in which
justice, social, economic and political, shall inform all the institutions of
national life. Article 44 lays down that the State shall endeavour to secure
for the citizens a uniform civil code throughout the territories of India.
Under Article 50 the State shall take steps to separate the judiciary from the
executive in the public services of the State. Equality before the law and
equal protection of the laws is postulated by Article 14 and discrimination on
grounds of religion, race, caste, sex, etc., is abolished by Article 15.
Various rights like right to speech, right to worship, right to assemble, etc.,
are guaranteed by Article 19. And in regard to pre-existing laws it is made
clear by Article 13 that such laws, to the extent to which they are
inconsistent with the provisions of Part III of the Constitution, shall be
void. All these provisions are not empty words. Their implementation involves
a scrutiny of the laws of the country from the point of view of their
conformity to the Constitution and their measuring up to the
standards prescribed by it. Such a task can be handled only by a Law Commission
composed of experts in law and jurists. Apart from this aspect of the matter,
the need for the overhauling of the laws has made itself felt from other
directions as well. There is a feeling widely prevalent that justice has become
costly and is not speedy. Justice in Britain is almost entirely free since the
days of the Magna Carta. In India from 1870 the Court Fees Act has been in
force, and since 1920 the Provincial Legislatures have been invested with power
to amend that Act. The statute is primarily fiscal in nature and has come to be
regarded as a source of income, a sort of goose that lays golden eggs. Intended
to serve as a deterrent against the growth of litigiousness, the Court Fees Act
has operated to make justice difficult and unavailable to the poor in many
cases. The Limitation Act with its varying period of limitation causes a sense
of bewilderment and has bee often baffling due to lack of precision and
simplicity.
The
duty of the Law Commission is not one of merely suggesting amendments to
particular sections of any enactment in the light of judicial decisions,
bringing out anomalies or pointing out practical difficulties in construction.
That will be only tinkering with the subject of law reform. The real task will
be to consider how drastically every branch of law should be
altered to suit the needs of the country and the underlying ideals of the Constitution.
The terms of reference are only two in number, but they have been expanded to
subsume four sub-headings under the first and six sub-headings under the second
of these terms. The Commission will in the first instance function in two
sections. The first section will examine matters like control of litigation and
making justice speedy and cheap, organisation of courts, recruitment to the
judiciary, level of the Bar and legal education. The second section will deal
with simplification of laws, conformity of laws to the provisions of the
Constitution, removal of anomalies and ambiguities, problems created by the
existence of the concurrent field of legislation between the Union and the
States, consolidation of enactments and reduction of existing laws,
implementation of the directive principles of State policy set out in Part IV
of the Constitution, and allied matters. The Commission has thus ample scope
and freedom in considering the subject of law reform. It is to be hoped that
the Commission will rise to the occasion.
1 Digest.
1, 5, 2.
2 Rankin,
Background to Indian Law, p. 125.
3 Ibid.
p. 74.
4 Grant
Duff, Sir Henry Maine p. 51.