Law Commission is working on Criminal Law Reforms including decriminalization of some Offences and introducing some Offences such as those relating to mass-scale communal violence; Justice AP Shah, Chairman Law Commission of India

Justice (Retd.) Ajit Prakash Shah is the Chairman of the 20th Law Commission of India. He was the Chief Justice of Delhi High Court from May 2008 till his retirement in February 2010.

Justice Shah has delivered several landmark judgments during his tenure ranging on diverse issues such as Application of the Right to Information Act to the Office of the Chief Justice of India; Decriminalization of homosexuality; Freedom of speech and expression; Environment and ecological matters; Protection of disabled persons; Laws relating to women; Contract labour; Child Labour; Employment rights of HIV affected persons etc.

In 2011, Justice Shah was appointed the Chairperson of Broadcasting Content Complaints Council (BCCC).  Under Justice Shah's leadership, BCCC has delivered several landmark ORDERS for regulating the content telecast on various Indian TV channels.

Sir, we thank you for your valuable time and agreeing to give this interview to Live Law.

Live Law : Sir, you are well known for your bold and forward thinking judgments. What is it that drove you to be the messiah for not only the LGBT but also the pro-poor judgments?

Justice A.P Shah : I do not believe that I have tried to be a messiah for any community, but have only tried to ensure the enforcement of positive duties mandated by the Constitution and the rights available to the citizens under it. There are times when certain sections of society may be bereft of fundamental principles of equality, but our Courts have zealously tried to guard such civil and political rights by their rich interpretations and such principles must be upheld at all costs. In this respect, the Indian Judiciary is an important inspiration for all countries.

Live Law : Do you think the NALSA Judgment which recognized the transgender as third gender', a socially and economically backward class, contradict Suresh Kumar Kaushal which upheld the constitutionality of S.377 IPC?

Justice A.P Shah : The NALSA decision delivered by Justice Radhakrishnan and Justice Sikri is a path-breaking judgment and shows great maturity and sensitivity towards the trans-genders. In my view, the NALSA decision is more in consonance with the modern times. It differs from Kaushal’s case in several respects.

First, the logic of miniscule population used by Kaushal’s judgment has not been adopted by NALSA.

Second, NALSA relies heavily from other jurisdictions such as South Africa, United States and International Human Rights Conventions whereas Kaushal has expressly declined placing reliance on the law in other jurisdictions.

Third, NALSA adopts the same interpretation of non-discrimination given to Article 15 of the Constitution by the Naz Foundation judgment of the Delhi High Court and holds that “sex” mentioned in the Article would also include sexual orientation. On the other hand, Kaushal rejects this interpretation of Article 15 without any discussion.

Live Law : Sir, you have also worked towards prison reforms. In one of your interviews you talked about criminal justice reform. According to you what is imperative to improve the criminal justice system in India and key to reducing the backlog of cases?

Justice A.P Shah : On the problems of criminal justice system, a former Chief Justice has remarked that it has become so broken that the process itself has become a punishment. We have a huge backlog of cases, coupled with a problem of having archaic laws. A disproportionately small number of courts saddled with a large population along with the low efficiency of the judicial system further compounds the problem. Even the processes in Court are very archaic and are not at all litigant friendly. The Supreme Court recently made a reference to the Law Commission for re-engineering of these processes and the need for use of technology and simplification of processes.

According to recent NCRB statistics, 66.2 percent of the total number of inmates in jails are undertrials. These startling figures show the slow pace of our criminal justice delivery system.

One of the major flaws in the criminal justice system is that the system condones illegal detentions and many a times allows enforcement and investigative agencies to violate procedural safeguards. Custodial violence is frequently resorted to as a means of investigation, leading to convictions.

Another major reason of the huge pendency is the inability of under trials to furnish bail bonds leading to their continued detention without any necessity. The Commission is presently also looking into a comprehensive review of our criminal laws – right from policing to prison, for instance the decriminalization of some offences; introducing some offences such as those relating to mass-scale communal violence; and rationalizing the classification of offences into bailable and non-bailable, compoundable and non-compoundable. There is a need for overhauling the system both at the investigation stage and in the courts as well as the prisons.

Live Law : While you were with the BCCC you passed several advisories. Would you like to comment on the current content which is being telecast especially in relation to women and if it is detrimental to women empowerment?

Justice A.P Shah : Without doubt, there is some concern regarding tendencies of some shows which focus excessively on ill-treatment of women. This may be portrayed in the form of assault, abuse, commodification of women. These programmes, though sought to be justified in the name of artistic freedom, only end up reinforcing negative stereotypes. Therefore, television shows and films should exercise due care while framing the plotlines and if violence against women is sought to be projected, it should be suggested rather than graphically depicted. Therefore, BCCC issued an Advisory to the channels against depiction of such violence against women and perpetuating stereotypes.

Live Law : Sir, as the chairman of the Law Commission, how do you see its recommendation to have a fixed tenure for the Chief Justice of India affecting the reform of the judicial system?

Justice A.P Shah : In recent times, we have seen very short tenures of the Chief Justices of India, which have on many occasions been less than a year and has even been for as short as a few days. Even the entire tenure of Judges in the Supreme Court these days is generally 3-7 years. In such short spans, there is hardly any time to bring in any reforms or to give a new vision to the courts.

In comparison, in other countries, the tenure of Apex Court Judges is about 10-15 years. The age of retirement in these countries is longer than in India. Examples are UK (70 years of age), Australia (75 years of age) and USA (till the lifetime of the Judge). Chief Justice Rhenquist and Chief Justice Warren of the US Supreme Court and even Chief Justice Douglas of Australian High Court, who had considerably long tenures were able to make a significant impact in the field of legal and judicial reforms.

In my view, Chief Justices of India should get a minimum tenure, which could at least be 2-3 years.

Live Law : Do you think replacing collegium system with a National Judicial Commission for appointment of Judges is a panacea for all the problems in the Judiciary?

Justice A.P Shah : When the Collegium system was brought into force, it was certainly well intentioned, and to some extent, it did check the problem of excessive executive intervention. The Collegium system however relies on ad hoc informal consultations with other Judges which cannot significantly investigate into criterias such as work, standing, integrity etc. and lays heavy emphasis on seniority for making appointments.  In addition, by putting the process of selection out of the bounds of legitimate checks and balances, the system lacks transparency with no oversight and thus, not being in tune with the democratic wavelengths.The proposal of an NJAC is therefore a welcome one. In several countries, appointments are made by an independent commission. By placing the power of appointment in an independent body, the rationale is to remove patronage from the system and ensure that judges are selected on the basis of an objective and transparent criterion. However, the NJAC Bill, 2014 which has been recently introduced, rather hastily suffers from several flaws and may ultimately prove to be a remedy worse than the disease.

Live Law : What are your main objections to the National Judicial Commission as proposed by the NJAC Bill 2014?

Justice A.P Shah : In my view, the NJAC in its present form is quite unsatisfactory. It seems to perpetuate many ills of the collegium system of appointments without solving its major problems and rather represents a missed opportunity for the Government. There is a serious concern about the composition of the NJAC. The fact that it does not have preponderance of Judge, could run afoul of the principles of independence of Judiciary as enunciated in the Judges’ cases. Regarding the provision relating to selection of “two eminent persons” to be nominated by the Committee comprising of the Chief Justice, the Prime Minister and the Leader of the Opposition, no criterion is laid down regarding the selection of these two persons who might be completely alien to the field of law or may not have the requisite experience. Neither is any mechanism provided as to how this selection is to be carried out.

Further, as per the NJAC Bill, “if any two members of the Commission do not agree for any recommendation”, the Commission shall not recommend such a person for appointment. Effectively, this provision even gives a veto power to any two members, including the two “eminent persons”, despite the fact that all other members may agree. It is likely that this veto power would perpetuate the culture of trade-offs and sycophancy which is prevalent in the Collegium system.

Another area of concern is that important issues which arise in the context of appointment of Judges and which were conspicuous by their absence in the Collegium system seem to be missing from the present proposed form of NJAC. These are issues of (i) criterion of selection of Judges, (ii) Diversity and (iii) transparency and accountability in the process of appointment.

Live Law : An Indian Judicial Service on the lines of the IAS and IRS has been in the pipeline for long. What is your opinion regarding this? The High Court and the States government have divergent views on this topic.

Justice A.P Shah : I feel that introduction of Indian Judicial Service is a very good idea and should be worth implementing. Earlier as well, this proposal had been under consideration for having 50% of the District judiciary to be from the Indian Judicial Service. We have seen that there exists uneven and varied amount of talent in different states. As a result, in several States, it becomes difficult to get suitable and meritorious candidates. In my view, the IJS would go a long way in checking this problem. Although some issues like language barriers may arise, but I am sure in due course of time, we may be able to overcome them.

Live Law : Government has decided to repeal S.309 of IPC based on the 210th report of Law Commission of India. What is your opinion?

Justice A.P Shah : In my view, it is an entirely correct decision on the part of the Government.

Live Law : But the 156th  Report of the Law Commission, submitted in August, 1997, after the judgment of the Constitution Bench in Gian Kaur Case , recommended retention of section 309, IPC. In Gian Kaur Supreme Court held that the recommendations of the Law Commission are irrelevant in determining its constitutionality. What do you think?

Justice A.P Shah : In that decision, the Supreme Court only upheld the constitutional validity of Section 309 by going into the relevant Constitutional law and Criminal law principles. It did not go into the desirability of having the same in the Indian Penal Code. It is impossible to find any rational justification for inflicting a punishment upon a person who has made an attempt to escape punishment which he thinks society is inflicting upon him. An attempted suicide is a matter for treatment and not punishment. In fact, India was amongst only a handful of countries in the world, which had persisted with this undesirable law.

Live Law : Does the Law Commission need statutory backing to function more effectively? What is your opinion?

Justice A.P Shah : In most countries, the Law Commissions or their equivalents have statutory backing and their recommendations are given great prominence. Most of the reports are accepted by Governments. In my view, the Law Commission of India has worked exceedingly well and has given over 250 reports in the last five decades. However, in India, nearly 40% of the Reports are not implemented and are only gathering dust in various Government departments. Therefore, there is certainly a necessity to give a statutory status to the Law Commission of India.

Live Law : The recently elected government has moved in a direction to repeal obsolete laws. What steps has the commission made to identify and recommend the repeal of these laws?

Justice A.P Shah : In my view, every Legislature must undertake the process of periodically weeding out laws which have become deadwood over a period of time, especially in today’s day and age when the statute law is growing in bulk and magnitude. The Law Commission has undertaken a project titled the Legal Enactments Simplification (LESS) project. Its objective is to prepare various reports on laws, regulations etc. which need to be repealed or amended. This project identifies and recommends for repeal laws which are inconsistent with newer laws, judgments, international treaties and conventions etc. The project also seeks to weed out laws that impose a heavy regulatory burden and whose costs outweigh their benefits. For this, the Commission has grouped all Central laws into 48 titles. Under this project the Commission has already given 4 reports and identified over 250 laws for being repealed.

Live Law : What is your vision for the coming years of the Law Commission?

Justice A.P Shah : My foremost and sincere wish is to see the Law Commission receiving a statutory status in the future. The Commission needs to regularly engage with Academicians and hire researchers and consultants. The Commission should essentially operate as a think tank. Presently, the Commission is working on several important issues as New Commercial Courts Bill, Electoral Reforms, Criminal Justice Reforms – policing to prison, Media laws, amendments to personal laws, Right to housing amongst several others.