The inability of the National Democratic Alliance to reach a comfortable electoral milestone could be attributable, in some measure, to its unfitting handling of legal issues. There is scope to review the process of legal consultancy to the government on legal matters. In this context, continuous, informed, and empirically valid legal inputs to the government from well-structured think tanks could be vital in clarifying the real intent of certain legislation. There is a case to be made for the establishment of a Legal Advisory Council (LAC) to the Prime Minister akin to the Economic Advisory Council (EAC).
Recent legal issues
Several legal issues of national and social importance have emerged from the present government’s legislative and policy initiatives. The electoral bonds scheme, for instance, was recently held to be unconstitutional by the Supreme Court, for violating the right to information of voters. The challenge to the scheme was foreseeable. If the test of proportionality had been conducted, as the Supreme Court had done, before the enforcement of the scheme to balance the right to privacy of donors with the right to information of voters, the challenge to the constitutionality of the scheme and the Court verdict could have been avoided.
A similar exercise in relation to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, would also have made the intervention by the Supreme Court in K.S. Puttaswamy v. Union of India (2018) redundant.
The transporter strike about the hit-and-run provisions under section 106(2) of the Bharatiya Nyaya Sanhita, 2023, is also a case in point. The provision stipulates a penalty of up to 10 years imprisonment where a person involved in an accident flees without reporting the same to a police officer or magistrate. It raised concerns among transporters that the law would apply against them disproportionately, regardless of the actual circumstances. The nationwide strikes were called off only after the government agreed not to notify the provision until it was suitably amended.
As many such issues have arisen due to a lack of adequate examination in terms of legal viability and impact assessments, it becomes prudent to fill the gap. As non-partisan public academic institutions, national law universities are, in particular, equipped with the requisite expertise, knowledge, and resources to assist the Central and State governments in formulating constitutionally viable and socially acceptable laws. Indeed, this was one of the primary objectives with which they were established. For instance, the National Law University Delhi Act, 2008, states the undertaking of “study and training projects relating to law, legislation and judicial institutions” as an object.
Regular research references in legislative areas proposed by national law universities to Central and State governments would enable these governments to fully utilise their investments in academic institutions and their expertise. The setting up of the Committee for Reforms in Criminal Laws at the National Law University Delhi by the Ministry of Home Affairs, and the nomination of one of the authors to the Department of Consumer Affairs Committee on the development of a framework on the right to repair is a prime example in this regard.
Anticipating challenges
Another idea to anticipate and respond to legal challenges entails the creation of a LAC on the lines of the EAC to aid and assist the Prime Minister’s Office (PMO). The terms of reference of the LAC could include the legal analysis of issues referred to it by the Government of India, the analysis of the possible impacts and outcomes of any contemplated law upon reference by the Prime Minister; and suo motu legal research and analysis on issues of contemporary importance. The LAC could comprise legal luminaries, eminent jurists, prominent academicians, and researchers with specialisations in varied fields which are frequently legislated upon by governments such as criminal law, trade law, international law, business laws, and taxation laws.
Such a body would differ from the Law Commission of India (LCI). While the LCI functions under the Ministry of Law and Justice, the LAC would work in conjunction with the PMO. The LCI primarily recommends reforms in existing laws, which makes its role reactive, while the LAC would function to anticipate the impact, challenges, and lacunae in forthcoming laws on which the government is deliberating and/or finalising legislation or policies. Furthermore, what highlights the low level of engagement between the government and the LCI is the fact that despite an abundance of legal issues requiring in-depth research and analysis, only four reports were prepared by the 22nd Law Commission between 2020 and 2024 upon reference by the Government of India.
The LCI has also been criticised for being ineffective since only 50% of their recommendations to date have been implemented. Despite the legal problems in the justice system being pervasive, pressing, and varied, the LCI has on average produced only 4.19 reports per year from the date of its inception. The need for a dynamic body that can navigate the complex and diverse legal landscape with relative swiftness and ease is obvious. Leveraging the academic potential of national law universities and the creation of a LAC, though not the only solutions, can help the government navigate legal challenges.
G.S. Bajpai, Vice Chancellor, National Law University Delhi. Views are personal; Ankit Kaushik, Assistant Professor, National Law University Delhi. Views are personal
