Since many problems arise due to the lack of adequate examination of legal feasibility and impact assessment, it is wise to fill these gaps. | Photo Credit: AP
TThe National Democratic Alliance’s inability to achieve comfortable electoral milestones can be attributed, in some measure, to its inappropriate handling of legal issues. There is scope to review the process of legal consultation with the government on legal issues. In this context, continuous, informed, and empirically valid legal input to the government from well-structured think tanks can be important in clarifying the real intent of certain laws. There is a case for creating a Legal Advisory Council (LAC) to the Prime Minister similar to the Economic Advisory Council (EAC).
New legal issues
Several legal issues of national and social importance have arisen from legislative initiatives and current government policies. The electoral bond scheme, for example, was recently deemed unconstitutional by the Supreme Court, as it violated voters’ right to information. Challenges to the scheme are predictable. If the proportionality test has been carried out, as the Supreme Court did, before the implementation of the scheme to balance the privacy rights of the donors with the information rights of the voters, the challenge to the constitutionality of the scheme and the judgment of the Court. could have been avoided.
An exercise similar to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, will also prompt an intervention by the Supreme Court in KS Puttaswamy v. Union of India (2018) is redundant.
The transporter’s attack on the hit-and-run provision 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 in prison when the person involved in the accident flees without reporting the matter to the police or a judge. It raised concerns among transporters that the law will be applied to them disproportionately, regardless of the actual situation. The nationwide strike was called off only after the government agreed not to notify the provision until it was amended accordingly.
Since many problems arise due to the lack of adequate checks on legal feasibility and impact assessment, it is wise to fill these gaps. As a non-partisan public academic institution, the national law university, in particular, is equipped with the necessary expertise, knowledge, and resources to assist the Central and State governments in formulating laws that are constitutionally applicable and socially acceptable. Indeed, this is one of the main goals that we do. For example, the Delhi National Law University Act, 2008, states “study and training projects related to law, legislation and judicial institutions” as its object.
Regular research referrals in legislative areas proposed by national law universities to the Central and State governments will enable these governments to capitalize on their investment in academic institutions and their expertise. The establishment of a Reform Committee in Criminal Law at the National Law University of Delhi by the Ministry of Home Affairs, and the nomination of one of the authors to the Consumer Affairs Committee on the development of a framework for the right to redress. is a prime example in this regard.
Anticipate challenges
Another idea to anticipate and respond to legal challenges is to create a LAC on the lines of the EAC to assist and assist the Prime Minister’s Office (PMO). The terms of reference of the LAC may include legal analysis of issues referred by the Government of India, analysis of the impact and outcome of the law contemplated under reference by the Prime Minister; and suo motu legal research and analysis on issues of contemporary importance. The LAC may include legal figures, prominent jurists, prominent academics, and researchers specializing in various fields often regulated by governments such as criminal law, trade law, international law, business law, and taxation law.
The body will be different from the Law Commission of India (LCI). While the LCI functions under the Ministry of Law and Justice, the LAC will work closely with the PMO. LCI mainly recommends reforms in existing legislation, which makes its role reactive, while LAC will be used to anticipate impacts, challenges, and gaps in future legislation where the government is considering and/or finalizing legislation or policy. Furthermore, what highlights the low level of involvement between the government and LCI is the fact that despite many legal issues that require deep research and analysis, only four reports were prepared by the 22nd Law Commission between 2020 and 2024 with reference by the Indian government.
The LCI has also been criticized for being ineffective as only 50% of its recommendations have so far been implemented. Despite the widespread, coercive, and diverse legal problems in the judicial system, the LCI has produced an average of only 4.19 reports per year since its inception. The need for a dynamic body that can navigate the complex and diverse legal landscape quickly and easily is evident. Using the academic potential of national law universities and creating LAC, although not the only solution, can help the government to overcome legal challenges.
GS Bajpai, Vice Chancellor, National Law University Delhi. Personal views; Ankit Kaushik, Assistant Professor, National Law University Delhi. Views are personal