B L Saraf
What was conceived in summer this year is, hopeful, getting delivered in the winter? State Government, we are told, is in final stages of giving shape and form to the first ever State Law Commission. In July this year government ordered creation of a Law Commission with the aim and object, ” to weed out archaic and redundant laws, besides help the State to be in know of the laws which, in future , changing times may render obsolete, and keep it alive to the necessity of new laws demanded by the emerging situations and developing circumstances .”
Much water has flown down the legislative drain in the Sub – Continent ever since Lord Macaulay took over as the first Chairman of Law Commission in India, in 1834, pursuant to its creation by the British, vide Charter Act of 1833. Lord Macaulay’s name has gone in the annals of the Sub- Continental judiciary after he and his team in the Commission codified penal laws and devised Criminal Procedure Code to regulate the criminal trials. Indian Penal Code and Cr Pc are among various laws which owe codification to him.
GOI created first Law Commission in 1955 with MC Setalvad, then Attorney General, as its Chairman. Since then it has been a continuous process and Law Commissions, established time to time, have done a great job in streamlining the judicial process in the country by getting rid of out-dated laws and helping devise new laws and procedures for dispensing speedy and cost effective justice to the people. While new legislations were recommended at the same time laws which had become archaic and redundant were weeded out.
State law Commission, indeed, is a welcome development. Knowledgeable persons in the legal field have, for long, been demanding that J&K should have a Law Commission. They, on account of their vast experience in the field, had felt need to revise so many existing laws, incorporate changes and amendments in many of them so that they are made useful. Many laws made in the past have suffered from bad drafting: their enactment has lacked due diligence and proper research needed for those kinds of legislations. With the result, instead of being helpful to the society these badly drafted laws have become a nuisance and defeated the very purpose. We trust that whenever the Commission assumes charge it will pay attention to this problem also.
Constraints of space may not permit exhaustive detailing, just for the illustration we could refer to the laws made in 1950s pertaining to the agricultural land, debts and urban rent and tenancy, to argue for deletion of some of these laws; or reconcile them with those enacted towards the end of 20th century. The agrarian laws which looked egalitarian in 1950 have almost lost their efficacy-become contraindicative- in 1976 and onwards, when new set of agrarian laws came into being. Same holds true for debt and mortgagee laws. In fact old urban and semi -urban tenancy / rent laws pose a serious hindrance to the genuine economic – commercial activities in the area. These laws have, in effect, expropriated the real owners (land lords) and conferred de facto title on the tenants. Old debt and mortgage laws create problems in the implementation of new banking and other commercial laws. Then, there is need to have welfare and protection laws for the vulnerable sections of the society, like women, children and differently abled persons, in tune with progressive laws available on the statute books of the country and elsewhere.
The Commission should walk an extra mile to devise ways and means which may cut the laws delays and re -instill common man’s faith in justice delivery system of the state.
Job is, therefore, cut out for those who are going to man the Commission. They must remember that In J & K we suffer from a unique ailment called ‘ Political- mania’. For some the virus remains dormant so long it is the demand of public office they occupy. Once free of it, the virus gets activated and they show signs of ‘wisdom ‘and’ activism’ never exhibited when in harness. The Commission must ensure that it doesn’t fall in the political trap or allow itself to be used as a tool by the competing political forces. We trust that while constituting the Commission Government is wholly and solely guided by the merit and suitability of the person, and no extraneous considerations will come into play.
Some may clamour for revision or repeal of laws not in conformity with the special status of the state. The Commission will be best advised to keep in view the fate of the committee which was set up by Sheikh Abdullah, in 1977, to revise some laws which , according to him , impinged on the state’s autonomic character. That committee went nowhere. The Commission may not tread that path.
Central law Commission, as we understand, has neither Constitutional nor Statutory backing. It is an ad -hoc body with limited duration. But it has got inspiration from various provisions of the Constitution. We assume our Commission will be modeled as such. For the clarity of the purpose, State Government should frame specific terms of reference and delineate the job, leaving nothing to the vagueness. Government must give due regard to the recommendations of the Commission and grant some sanctity to its effort. Law Commission should not be a mere ornamental institution and treated as an adjunct. It should be provided with requisite infrastructure, staff and enough funds to be able to discharge the mandate. Or, else it would be just like ‘ other commission.’
(The author is former Principal District & Sessions Judge
B L Saraf