Law Commission of India | UPSC Notes

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Law commission:

Law Commission of India is an executive body (not statutory ) 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 recommendations of the commission are not binding on the government.
  • 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 of independent India was established in 1955 for a three year term.

Important Functions to be carried out by the commission:

  • Undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
  • Undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc.
  • Identify laws which are no longer relevant and recommend for the repeal of obsolete and unnecessary enactments.
    • Since 2014, Modi, about 50 acts have been repealed every year via Repealing Acts
    • Many more have been circulated to the state govt which falls under their jurisdiction
  • Suggest enactment of new legislations as may be necessary to implement the Directive Principles and to attain the objectives set out in the Preamble of the Constitution.
  • Prepare and submit to the Central Government, from time to time, reports on all issues, matters, studies and research undertaken by it and recommend in such reports for effective measures to be taken by the Union or any State
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20th Law Comission

  • Headed by Justice A.P. Shah, the commission submitted its 255th report, on the issue of electoral reforms, to the Union Law Ministry.

 20th Law commission’s recommendations on Electoral Reforms

  • not in favour of introducing compulsory voting, terming it undemocratic, undesirable and not helping to improve political awareness and participation.
  • not favoured right to recall as well to reject a winning candidate if the vote polled by him were less than those opting for none of the above (NOTA) or state funding of the elections in view of the current economic conditions of the country.
  • The commission has recommended increasing the period of disqualification from current three years to five years for a candidate who fails to file election expenses and contributions received, with the intent to debar defaulters from contesting the next elections at least.
  • The Commission has recommended that both “paying for the news” by the candidates and “receiving payment for news” by the media organisation should be made an electoral offence by inserting it in the newly inserted section 127B of the electoral act.
  • recommended vesting with the president or the governor the power to disqualify a Member of Parliament or state legislature on the grounds of defection, instead of the speaker or chairman as presently, on the advice of the poll panel.
  • stressed on regulating and restricting government sponsored advertisements six months prior to the date of expiry of the House “to maintain the purity of elections.
  • Electoral expense limit applicability period should be extended to apply from the date of notification of the polls instead of nomination to the date of declaration of results.
  • Companies Act should be amended to require passing of the resolution authorising the contribution from the company’s funds to a political party at the company’s AGM instead of its Board of Directors.
  • Much larger fines on political parties for non compliance
  • Noting that the ban on broadcast of election matter 48 hours prior to an election was restricted to the electronic media now, the commission recommended such prohibition for the print media also.
  • recommended measures to strengthen the Election Commission and for a collegium or selection committee, which includes the Leader of Opposition, to appoint commissioners.
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Recommendation on rearing children after divorce

  • Currently only 1 of the 2 patents get the right to rear their children
  • Law commission has recommended taking care jointly
  • If necessary, rights could be granted to one with visiting rights to the other
  • Other recommendations are like granting visiting rights to the grandparents, increasing age of taking care to 25 based on health, education needs

Recommendation on (not) making Hindi compulsory in higher judiciary

Recommendations on BIT

  • Bilateral Investment Treaty
  • Current Provisions
    • Had provision like MFN, equal treatent to the foreign investors as the home companies
  • Problem
    • With Vodafone winning case, and consequent govt attrocities
    • India one of the most sued regimes
  • ModelBIT , 2016
    • BIT replaces BIPPA
    • India will not provide MFN status to any country now
    • Tax out of BIT
      • Pro- no more Vodafone, Nokia like issue were they invoked the BIPPA
        • BIT will replace BIPPA
        • Bilateral investment promotion and protection agreement
        • India has signed BIPPA with72 nations
      • Con – Indian companies abroad can’t invoke it & companies staying out
    • Gov’t can’t nationalise a firm except for public purpose, but with payment of compensation
      • Though, firms can challenge the public purpose
    • Judiciary
      • Foreign investors will have to litigate in Indian courts for 5 years before using i nternational arbitration
      • Opposite to ISDS ( Investor State Dispute Settlement Mechanism ) Being brought about by developed countries in WTO – Would pave way for International Arbitration rather than domestic courts
    • Combodia 1dt vountry eith ehich new biT signed
  • Impact
    • Lesser protection to Indian FDI abroad
    • Possible impact on FDI inflow
    • Won’t impact current FDI – since old BIT would continue to cover for 15-20 years due to inbuilt clause
    • Nor does it impact the Disputes
  • Other Recommendation of Law commission
    • Denial of Benefits clause – A foreign investors would be denied benefits if it acts illegally (say corruption cases)
    • Exceptions– Govt acting for public benefits in fields like public health, environment can override BIT
    • Expansion of BIT to any investor, covering even those who do not set up an enterprise in India
    • An arbital tribunal can review a issue even after it has been settled in a local court (This was removed as per 1 of the govt’s attrocities)
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