6 min read.Updated: 12 Nov 2014, 11:48 PM ISTMonalisa
Law Commission's chairman Justice A.P. Shah shares his thoughts on issues including repeal of obsolete laws, disentangling the nexus of politics and media, and reworking judicial procedures
New Delhi: With the Indian legal framework in a state of flux, the Law Commission is busier than ever. The commission is working on a range of issues including repeal of obsolete laws, disentangling the nexus of politics and media, and reworking judicial procedures. The commission’s chairman Justice A.P. Shah, a former chief justice of the Delhi high court, shared his thoughts on some of these issues in an interview. Edited excerpts:
The idea of repeal of obsolete laws has been welcomed in all quarters. How has the process worked?
The Law Commission has undertaken a study called the Legal Enactments Simplification and Streamlining for weeding out obsolete and archaic laws. In the first instalment of this study, we had identified 72 laws. In the second and the third instalments, another 113 and 73 laws have been identified for repeal. Thus, a total of 258 laws have been recommended for repeal so far.
The repeal was recommended for three reasons: if a later law clearly conflicts with an archaic one; if the purpose of the law has already been fulfilled; and if the subject matter of the statute was so archaic that it is not relevant in today’s time. We are also looking at laws which are not in harmony with international conventions which India is a signatory to or has ratified. Then, there are some laws which need to be updated. For instance, we have maritime laws or insolvency laws, which have become completely outdated. There is a need to update those laws.
What is the nature of laws that are being repealed?
Most of the laws recommended for repeal are substantive legislations. Apart from these, there are appropriation laws which also need to be repealed. Whenever government draws money from the consolidated fund of India, Parliament passes what is called an appropriation law. Hundreds of such laws have been passed by Parliament. Once the money is withdrawn, the laws become infructuous, but we have not repealed those laws. So, there are more than 1,000 such laws still on the statute books. We have recommended that an appropriation law itself should contain a provision that after the withdrawal of the money, the statute will cease to exist.
Why do you think it takes so long to realize that there are dead-weight statutes that need to go?
This exercise was carried out in the past by the Law Commission. In the 1998 report of the commission, 36 laws were recommended for repeal. P.C. Jain commission had also recommended certain laws for repeal. The recommendations of Jain commission, however, remained unimplemented.
The other aspect is, who should repeal the law—Parliament or state legislature? Article 372 of the Constitution says that if the subject falls under the state list, then only the state can repeal or amend the law. So though the law was originally passed by the Union of India, only the state can repeal the law if the subject of the law falls in the state list. So, we have advised the central government to write to the state governments to repeal the law wherever the subject of the law is within the domain of state legislature.
Is there a particular focus on reorganization of the judicial system; make it more specific to the nature of disputes?
We are preparing a report for setting up commercial courts in the country. The commission is of the view that the existing procedural laws are not suitable for adjudication of commercial disputes. Therefore, we are suggesting amendments to the Code of Civil Procedure in its application to the commercial courts. The new procedures are on the lines of the commercial courts in London, Singapore and New York.
What will be the jurisdiction of this court?
It is being proposed that all commercial disputes of ₹ 1 crore and above will be tried by the commercial court or the commercial division of the high court.
With respect to commercial disputes, arbitration did not turn out to be the panacea everyone expected. Your thoughts.
The present system of arbitration is plagued by many loopholes and shortcomings. The problem is basically threefold: excessive court interventions, delays and high costs. We have ad hoc arbitrations where arbitral proceedings continue for years together, and then there is a challenge in court almost as a matter of right. The moment the award is challenged, the execution is stayed and the matter remains pending in the court for several years. The object is to bring the arbitration system in India on par with international standards. We have recommended that the government should encourage institutional arbitration as in other countries and to form dedicated benches for arbitration cases.
Is a similar exercise being conducted for the lower judiciary in the country?
One of the important projects that has now been undertaken is the reforms in the criminal justice system—it is virtually on the verge of collapse. The system is plagued by serious problems. We are looking at the criminal justice system as a whole—from policing to prisons, suggest reforms on procedural laws, substantive laws, creating new offences, abolishing some offences, giving guidelines for bail and sentencing, etc.
How do you curtail the time for the present system of trials and simplify the system? The system is heavily loaded against the marginalized classes. Recently, the Supreme Court has made a reference (to the Law Commission) for the purpose of re-engineering the processes in lower courts— they have become outdated. So, the object is to simplify the procedures and processes, make them litigant-friendly. Technology will play a crucial role in shaping the new procedures.
The Law Commission is dealing with a range of issues related to politics, including those that have ramification for the media. What areas are under focus?
The commission is working on electoral reforms—a partial report was submitted on the issue of criminalization of politics and effect of filing false affidavits. We are now in the process of submitting another interim report on certain issues including paid news and opinion polls. The consultation paper was issued on electoral reforms sometime in 2013, but the response from the political parties is rather discouraging. Only one national party responded to the consultation paper. Now, we have again written letters to all the political parties and are awaiting their response.
The Supreme Court has made a reference just before the parliamentary elections requesting the commission to define hate speech. We are looking at existing laws and making an attempt to formulate a new definition of hate speech, which would be distinct from offensive speech— many times gets mixed up. An offensive speech is not necessarily a hate speech.
What is the feedback to the recently concluded consultation on media law?
We received a very encouraging feedback. We have even received responses from the American Bar Association, UK, Hong Kong. We are in the process of analysing the responses, a summary will be placed on the commission’s website. We propose to hold a dialogue with media houses, journalist associations and civil society activists. Hopefully, the report will be ready early next year.
According to me, the central issue is regulating the media—whether there should be any regulation at all, whether it should be statutory or self regulation would suffice, or there should be an amalgam of both. There are other issues such as contempt of court and trial by media, de-criminalization of defamation, issues relating to social media (section 66A, intermediaries’ liability, blocking of websites, etc.)
Related to issues of regulating the Internet is the need for privacy and legislating on privacy. Where are we on that?
It is critical for the country to have a privacy and data protection law. Privacy is not merely an abstract right which is held to be a fundamental right by the Supreme Court. Government should pass legislation on privacy.