What Law Reform Is, and Who Does It
Chapter Seventy-Four
Syllabus topic 4, "Clinical Legal Education - Legal aid, Legal Literacy, Legal survey and Law reform"
Pages 276 to 279 of 543
In one line
Law reform is the deliberate improvement of the law as an activity in its own right, distinct from legislating on a new subject, and in India six different bodies do it in six different ways.
In the wording a student can write in an exam: law reform means the systematic examination of existing law with a view to its improvement, by repeal, amendment, consolidation, codification or restatement, undertaken as a continuing activity rather than in response to a particular occasion; in India it is carried on by the Law Commission of India and State Law Commissions, by Parliament and the State legislatures through their own committees, by the Government departments that draft and administer the law, by the courts, by statutory regulators making subordinate legislation, and by the professional bodies, academics and civil society organisations that propose and press for change.
What distinguishes reform from ordinary legislating
Ordinary legislating responds to an occasion. A problem arises, a Bill is drafted, and a new subject is regulated.
Law reform looks at law that already exists and asks whether it still works: whether it is obsolete, inconsistent, unnecessarily complex, unjust in its operation, or scattered across instruments that should be brought together.
Its characteristic instruments are repeal of what is dead, amendment of what is defective, consolidation of what is scattered, codification of what is judge made, and restatement of what is unclear.
And its characteristic virtue is that it is continuous. A country that reforms law only when something goes wrong accumulates obsolete law until nobody can find the current position, which is the condition every law reform body exists to prevent.
The six agencies
The Law Commission of India
What it is. A non-statutory body constituted by the Government from time to time, chaired by a retired judge, which examines subjects referred to it by the Government or taken up on its own motion and reports with recommendations, usually with a draft Bill. Chapter 720 treats it in full.
What it can do. Study a subject at length, take evidence, and produce a reasoned recommendation with a draft.
What it cannot do. Enact anything. A report is a proposal, and chapter 730 is about what happens to it.
Its relevance to this syllabus is direct: the Fourteenth Report of 1958 and the 184th Report of 2002 are both about legal education, chapters 70 and 80, and the 266th Report of 2017 is on the Advocates Act.
Parliament and the legislatures
What they can do. Everything, since only they can enact.
How reform reaches them. Through a Bill, and through their own committees: departmentally related standing committees, select and joint committees on particular Bills, and committees on subordinate legislation.
What Law Reform Is, and Who Does It
Their limit. Legislative time is scarce and is allocated by political priority, so a technically excellent reform with no constituency waits.
The Government departments
What they do. Draft, administer and amend the law in their own field, and the Legislative Department drafts for everybody.
Why they matter more than students think. Most amendment happens here, not in a commission's report, and a department that administers an Act knows better than anybody where it fails.
Their limit. A department reforms in its own field, and is unlikely to propose a reform that reduces its own power.
The courts
What they do. Develop the law by interpretation, fill gaps, strike down what is invalid, and occasionally issue directions that operate until the legislature acts. Chapter 750 treats this and its limits.
Their limit. A court can act only when a case comes, only between the parties before it, and only within what a judicial decision can do. It cannot survey, cannot budget and cannot enact.
The regulators
What they do. Make subordinate legislation, which in some fields is where almost all the operative rules are.
The example this book has already worked at length. The Bar Council of India reformed Indian legal education through the Rules of Legal Education 2008, and NALSA reformed legal aid delivery through the regulations of 2010 and 2011. Neither needed an amending Act.
This is chapter 430's observation, and it is worth repeating: in Indian legal education every reform that actually happened came through subordinate legislation, and the statutory amendments the Law Commission proposed did not.
Their limit. They can act only within the parent Act, which is why V. Sudeer struck the Bar Council's training rules down and why Bonnie Foi's reconsideration mattered, chapter 420.
The Bar, the academy and civil society
What they do. Identify problems, propose solutions, litigate, publish and press.
Why they belong on the list. Almost every reform above begins as somebody's proposal, and the empirical work of chapter 700 is done here more often than anywhere else.
Their limit. Influence only. They persuade the bodies that can act.
Which agency for which problem
| The problem | The agency |
|---|---|
| The law is obsolete or scattered | Law Commission, then Parliament |
| The law is sound and its administration fails | The department, or a regulator |
| The rule is unclear on a point that keeps arising | The courts, by interpretation |
| The rule is unconstitutional | The courts |
| The detail needs changing often | The regulator, by subordinate legislation |
| Nobody has noticed the problem yet | The academy, the Bar and civil society |
The practical value of that table is that a good reform proposal names the body that can act, and a proposal addressed to the wrong body is not a proposal.
What Law Reform Is, and Who Does It
A worked example
The finding from chapter 690: accused persons are not being informed on remand of their right to free legal services.
Not the courts, primarily. The law is already settled in Khatri and Suk Das, chapter 630; the failure is in practice, so a further judgment adds nothing.
Not Parliament. No amendment is needed; the duty exists.
The High Court on its administrative side could issue a practice direction and prescribe a form in the remand file, which is the most direct route.
The State Legal Services Authority could place a para-legal volunteer or a duty counsel at the remand court, which regulations under the Act permit.
And NALSA could make it a monitored item, since regulations 10 to 12 of the 2010 Regulations already require the quality of services to be looked at.
Notice that the correct answer is administrative and regulatory, not legislative or judicial. Identifying that is what distinguishes a reform proposal from a complaint, and it is what MU means when it marks a dissertation on its suggestions and recommendations, chapter 1420.
Quick revision
Law reform is the systematic examination of existing law with a view to its improvement, by repeal, amendment, consolidation, codification or restatement, as a continuing activity rather than a response to an occasion.
Six agencies: the Law Commission of India and State Law Commissions, which propose but cannot enact; Parliament and the legislatures, which alone can enact but are limited by time and priority; the Government departments, where most amendment actually happens; the courts, which interpret, fill gaps and strike down but cannot survey, budget or enact; the regulators, whose subordinate legislation is where Indian legal education and legal aid were in fact reformed; and the Bar, the academy and civil society, which identify and press but can only persuade.
Match the agency to the problem, because a proposal addressed to a body that cannot act is not a proposal.
Test yourself
1. Distinguish law reform from ordinary legislating. Ordinary legislating responds to an occasion by regulating a new subject. Law reform examines law that already exists and asks whether it is obsolete, inconsistent, unnecessarily complex or unjust in operation, using repeal, amendment, consolidation, codification and restatement, and it is continuous rather than occasional.
2. Name the six agencies of law reform in India and give one limit of each. The Law Commission of India, which can recommend but not enact; Parliament and the legislatures, which alone can enact but allocate time by political priority; Government departments, which reform only in their own field and rarely propose reducing their own power; the courts, which act only when a case comes and only within what a judgment can do; regulators, which can act only within the parent Act; and the Bar, the academy and civil society, which can only persuade.
What Law Reform Is, and Who Does It
3. Which agency in fact reformed Indian legal education and legal aid delivery, and what does that show? The regulators: the Bar Council of India through the Rules of Legal Education 2008, and NALSA through the regulations of 2010 and 2011. It shows that in this field reform happened through subordinate legislation, while the statutory amendments the Law Commission proposed in its 184th Report were not enacted.
4. Why must a reform proposal name the body that can act? Because agencies differ in what they are able to do, so a proposal addressed to the wrong one cannot be acted on. A failure of practice under a settled rule needs an administrative or regulatory remedy, not a further judgment or an amendment.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.