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.
- Section 106(2) imposes a penalty of up to 10 years imprisonment for fleeing an accident without reporting it.
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)