The Supreme Court has been moved in a PIL for a direction to the Centre to appoint the Chairperson and Members of the Law Commission of India within one month and make it a statutory body. Alternatively, the petitioner- Supreme Court advocate and BJP leader Ashwini Upadhyay, urges that being the custodian of the Constitution and the protector of fundamental rights, the Court may use its constitutional power to make the necessary appointments.
“The Cause of action accrued on 31.8.2018 and continues, when the tenure of twenty-first Law Commission was ended but Centre neither extended the tenure of its Chairperson and Members nor notified Twenty Second Law Commission. Although, on 19.2.2020, Centre approved constitution of Twenty-second Law Commission but it has not appointed the Chairperson and Members till date”, avers the petition. It is urged that the injury to the public is extremely large as the Law Commission of India is headless since 1.9.2018 hence unable to examine public issues. Even the directions of the Constitutional Courts to the Law Commission have become dead letter- “On 11.12.2020, petitioner withdrew WP(C) 1300/2020 seeking action on Vohra Report and WP(C) 1301/2020 seeking 100% confiscation of black money, benami property and disproportionate assets and life imprisonment to looters with liberty to approach the Law Commission but unable to do so as its headless”.
It is pointed out that since the Law Commission is not working since 1.9.2018, the Centre doesn’t have the benefit of recommendations from this specialised body on the different aspects of law, which are entrusted to the Commission for its study and recommendations. The Commission, on a reference made to it by the Centre, Apex Court & High Courts, undertakes research in law and reviews existing laws for making reforms therein and enacting new legislations. It also undertakes studies and research for bringing reforms in justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in cost of litigation etc. The Law Commission of India not only identifies laws which are no longer needed or relevant and can be immediately repealed but also examines the existing laws in the light of Directive Principles of State Policy and suggests the ways of improvement and reform. The Commission also suggests such legislations as might be necessary to implement Directive Principles and to attain the objectives set out in Preamble of the Constitution.
It is stressed that the Law Commission of India considers and conveys to the Centre, Apex Court and High Courts, its views on any subject relating to law and judicial administration that is referred to it and also considers the requests for providing research to foreign countries. It takes all measures as may be necessary to harness law and the legal process in the service of poor and revise Central Acts of general importance so as to simplify them and remove anomalies, ambiguities and the inequities. The Law Commission has been able to make important contribution towards the progressive development and codification of Law of the country and it has so far submitted 277 reports.
“If the petitioner satisfies the Supreme Court that his fundamental right has been violated, it is not only the ‘right’ and ‘power’, but the ‘duty’ and ‘obligation’ of the Court to ensure that the petitioners fundamental right is protected and safeguarded”, presses the petitioner.
He points out that the power of Supreme Court is not confined to issuing prerogative writs only. By using expression “in the nature of”, the jurisdiction has been enlarged. Hence, the Supreme Court cannot refuse an application under Article 32, merely on the grounds: (i) that such application have been made to Supreme Court in the first instance without resort to the High Court under Article 226 (ii) that there is some adequate alternative remedy available to petitioner (iii) that the application involves an inquiry into disputed questions of fact / taking of evidence. (iv) that declaratory relief i.e. declaration as to unconstitutionality of impugned statute together with consequential relief, has been prayed for (v) that the proper writ or direction has not been paid for in the application (vi) that the common writ law has to be modified in order to give proper relief to the applicant. (vii) that the Article in Part Three of the Constitution which is alleged to have been infringed has not been specifically mentioned in petition, if the facts stated therein, entitle the petitioner to invoke particular article.