The Madras High Court has directed the Union government to consider making the Law Commission of India a constitutional or statutory body.
“What is the use of constitutional courts delivering judgments and making recommendations for enacting laws when they are not actually acted upon by the legislature? What is the use of having a Law Commission of India without its recommendations being acted upon,” it asked. It also directed the Union government to appoint nodal officers in every department to keep track of judicial recommendations, besides taking a call on making the law commission a constitutional or statutory body.
Justices N. Kirubakaran (since retired) and B. Pugalendhi also took a serious note of the posts of chairperson and members of the 22nd Law Commission not having been filled so far and ordered that these posts be filled within three months. In case of failure, the Union Law Secretary must appear before the court, they warned. The judges also directed the Union government to consider enacting a law for fixing tortious liability on the state for the loss caused to citizens due to the negligence of government officials.
The court passed the judgment while disposing of a writ petition which complained that the Union government was yet to bring in legislation in the field of torts and state liability, though such a recommendation was made by the first Law Commission in 1956. Though a Bill was introduced in 1965 and re-introduced in 1967, it got lapsed in 1970. Thereafter, nothing was done to enact such a law despite the Supreme Court having underscored the need for it in its verdicts delivered in 2011 and 2014.
Concurring with the submissions made by litigant K. Pushpavanam, the Bench, led by Justice Kirubakaran, said it was essential to have a law on tortious liability of the state. It lamented that such a law had not been passed even after half-a-century since the first Law Commission made its recommendation and said many other recommendations of the Law Commission had also been put into cold storage. “If such is the attitude of the government, it will make one to think that there is no necessity for any Law Commission,” it wrote.
The judges disapproved of the practice of successive Law Commissions having served without any statutory backing and directed the Union government to allot more funds and adequate infrastructure to the Commission for conducting research activities. They pointed out that most of the laws enacted during the colonial rule, but remaining in vogue today, were the ones that were enacted on the basis of the Law Commission’s recommendations. Even post-Independence, the Law Commission had made an immense contribution.
Yet, ironically, only 40% of its recommendations got implemented and no decision was taken on the rest, the Bench rued. Stating that recommendations made by courts to enact laws or amend the existing laws also fell on deaf ears, the Bench said, “If that is the position, this court is of the opinion that the restraint shown by the courts in exceeding their jurisdiction to encroach upon the field of legislature should be given up... It may be criticised as judicial adventurism or judicial activism but it is a necessary duty in public interest.”
