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THE CASE FOR A LEGAL ADVISORY COUNCIL

Relevance: GS 2 – Structure, organization and functioning of the Executive and the Judiciary—Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.

Why in the news?

• The National Democratic Alliance’s inability to reach a comfortable electoral milestone could partly be due to its mishandling of legal issues.
• There is a need to review the process of legal consultancy provided to the government.
  • Continuous, informed, and empirically valid legal inputs from well-structured think tanks could help clarify the real intent of certain legislation.
• There is a case for establishing a Legal Advisory Council (LAC) to the Prime Minister, similar to the Economic Advisory Council (EAC).

Recent Legal Issues

• Electoral Bonds Scheme: Recently held unconstitutional by the Supreme Court for violating voters’ right to information. The challenge to the scheme was foreseeable.
  • Possible Solution: Conducting a proportionality test before enforcement could have balanced donors’ right to privacy with voters’ right to information, thus potentially avoiding the court verdict.
• Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016:
  • Similar preemptive measures could have made the Supreme Court’s intervention in K.S. Puttaswamy v. Union of India (2018) redundant.
• Transporter Strike and Bharatiya Nyaya Sanhita (2023):
  • Section 106(2) imposes a penalty of up to 10 years imprisonment for fleeing an accident without reporting it.
    • Concerns arose that the law would disproportionately affect transporters.
  • Strikes were called off after the government agreed not to notify the provision until it was amended.

Leveraging Academic Expertise

• Need for Adequate Examination: Many issues have arisen due to insufficient examination of legal viability and impact assessments. It is crucial to fill this gap to avoid similar problems in the future.
• Role of National Law Universities: National law universities are well-equipped to assist governments in formulating constitutionally viable and socially acceptable laws.
  • Their primary objectives include studying and training in law, legislation, and judicial institutions, as stated in acts like the National Law University Delhi Act, 2008.
  • Regular research references from national law universities to governments can fully utilize the investments in academic institutions and their expertise.
• Example of the recent initiatives:
  • Committee for Reforms in Criminal Laws at National Law University Delhi by the Ministry of Home Affairs.
  • Department of Consumer Affairs Committee on the development of a framework on the right to repair, involving academic experts.

Proposal for Legal Advisory Council (LAC)

• Creation of a LAC on the lines of the Economic Advisory Council (EAC) to assist the Prime Minister’s Office (PMO).
• Responsibilities:
  • LAC would provide legal analysis of issues referred by the Government of India.
  • Analyze possible impacts and outcomes of contemplated laws upon reference by the Prime Minister.
  • Conduct suo motu legal research and analysis on contemporary issues.
• Composition of the LAC:
  • Include legal luminaries, eminent jurists, prominent academicians, and researchers.
  • Specializations in fields frequently legislated upon, such as criminal law, trade law, international law, business laws, and taxation laws.
• Difference from the Law Commission of India (LCI):
  • LCI functions under the Ministry of Law and Justice and recommends reforms in existing laws, making its role reactive.
  • LAC would work in conjunction with the PMO, anticipating impacts, challenges, and gaps in forthcoming laws and policies.
  • LCI has a low level of engagement with the government, evidenced by only four reports prepared by the 22nd Law Commission between 2020 and 2024.
  • LCI was criticized for ineffectiveness, with only 50% of recommendations implemented and an average of 4.19 reports per year since inception.

Way Forward for Establishing a Legal Advisory Council (LAC)

• Proposal Development:
  • Draft a comprehensive proposal outlining the objectives, structure, and functions of the LAC.
  • Include a clear definition of the LAC’s role in relation to existing bodies like the Law Commission of India.
• Stakeholder Consultation:
  • Engage with legal experts, academicians, and practitioners to gather input and build consensus on the need for the LAC.
  • Conduct workshops and seminars to discuss the potential framework and responsibilities of the council.
• Legislative Framework:
  • Formulate the necessary legal framework for the establishment of the LAC, ensuring compliance with existing laws and regulations.
  • Propose amendments to relevant laws if necessary to facilitate the council’s functioning.
• Composition and Recruitment:
  • Identify and recruit members with diverse expertise in various fields of law, including constitutional law, criminal law, international law, and business law.
  • Ensure representation from national law universities and other academic institutions to leverage their research capabilities.
• Operational Guidelines:
  • Develop operational guidelines that define the council’s processes for conducting research, analyzing legal issues, and providing recommendations.
  • Establish protocols for collaboration with government ministries and departments.
• Funding and Resources:
  • Secure adequate funding and resources to support the council’s operations, including research initiatives and administrative expenses.
  • Explore partnerships with academic institutions and think tanks for additional support.
• Public Awareness and Transparency:
  • Promote awareness of the LAC’s role and functions among the public and stakeholders to build trust and legitimacy.
  • Implement mechanisms for transparency in the council’s operations, including regular reports and updates on its activities.
• Monitoring and Evaluation:
  • Establish a framework for monitoring and evaluating the effectiveness of the LAC in providing legal advice and influencing policy.
  • Gather feedback from government officials and other stakeholders to continuously improve the council’s contributions.
• Pilot Initiatives:
  • Launch pilot initiatives to test the LAC’s processes and effectiveness in addressing specific legal challenges faced by the government.
  • Use the outcomes of these initiatives to refine the council’s approach and expand its scope.
• Integration with Government Processes:
  • Ensure that the LAC is integrated into the government’s legislative process, providing timely inputs during the formulation of laws and policies.
  • Foster a collaborative relationship between the LAC and the Prime Minister’s Office for ongoing legal advisory support.

Alternative articles:

https://universalinstitutions.com/22nd-law-commission-extended/

Source: https://www.thehindu.com/opinion/op-ed/the-case-for-a-legal-advisory-council/article68465192.ece

Mains question

Discuss the need for a Legal Advisory Council (LAC) to the Prime Minister and its potential benefits. How it would differ from the existing Law Commission of India. (250 words)