CHANAKYA NATIONAL LAW UNIVERSITY

A PROJECT OF
LAW AND LITERATURE
ON
“THE QUALITY OF JUSTICE BY
JUSTICE AP SHAH”

SUBMITTED TO: SUBMITTED BY:

Dr. Manoj Mishra Shreya Sinha
(Faculty of Marketing Management) Roll No. - 1648
Semester – 2nd
B.BA LL.B
Session – 2016-2021

1|Page
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BB.A. LL.B (Hons.) Project Report entitled
“THE QUALITY OF JUSTICE BY AP SHAH” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried out under the supervision of Dr.
Pratyush Kaushik. I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna

2|Page
 ACKNOWLEDGEMENT

“ IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Law and
Literature teacher Dr. PRATYUSH KAUSHIK whose support and guidance was the driving
force to successfully complete this project. I express my heartfelt gratitude to him. Thanks are
also due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Law and Literature teacher for providing us with such a golden opportunity to showcase our
talents. Also this project was instrumental in making me know more about the quality of
justice written by Hon’ble Justice AP Shah. This project played an important role in making
me understand more about the various aspects of the Indian Judicial System and the opinions
of different judges including Justice AP Shah. It was truly an endeavour which enabled me to
embark on a journey which redefined my intelligentsia, induced my mind to discover the
intricacies involved in the Indian Judicial System and the Quality of Justice in India.

Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Shreya Sinha
- 2nd Semester
- B.BA LL.B

3|Page
 TABLE OF CONTENTS

Acknowledgement…………………………..…………………………………………………3

Table of Contents……………………………………………………………………………...4

Aims and Objectives…………………………………………………………………………..5

Research Methodology……………..…………………………………………………………5

1. Introduction………………………………………………………………………….6-8

2. The Quality of Justice……………………………………………………………...9-11

3. Justice AP Shah…………………………………………………………………...12-17

4. Landmark judgements of AP Shah……………………………………………….18-19

5. Justice AP Shah as the Chairman of Law Commission of India………………....20-23

6. Opinions of various judges on the judicial system of India………………………24-25

7. Conclusion………………………………………………………………………..26-31

Bibliography…………………………………………………………………………………32

4|Page
 AIMS AND OBJECTIVES

The aims and objectives of this project are:

1. To study and analyse “The Quality of Justice by Justice AP Shah.”
2. To comment on the text.

RESEARCH METHODOLOGY

For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.

5|Page
 INTRODUCTION

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of
the inheritance India received from the British after more than 200 years of their Colonial
rule, and the same is obvious from the many similarities the Indian legal system shares with
the English Legal System. The frame work of the current legal system has been laid down by
the Indian Constitution and the judicial system derives its powers from it.
The Constitution of India is the supreme law of the country, the fountain source of law in
India. It came into effect on 26 January 1950 and is the world’s longest written constitution.
It not only laid the framework of Indian judicial system, but has also laid out the powers,
duties, procedures and structure of the various branches of the Government at the Union and
State levels. Moreover, it also has defined the fundamental rights & duties of the people and
the directive principles which are the duties of the State.
In spite of India adopting the features of a federal system of government, the Constitution has
provided for the setting up of a single integrated system of courts to administer both Union
and State laws. The Supreme Court is the apex court of India, followed by the various High
Courts at the state level which cater to one or more number of states. Below the High Court’s
exist the subordinate courts comprising of the District Courts at the district level and other
lower courts.1
An important feature of the Indian Judicial System is that it’s a ‘common law system’. In a
common law system, law is developed by the judges through their decisions, orders, or
judgments. These are also referred to as precedents. Unlike the British legal system which is
entirely based on the common law system, where it had originated from, the Indian system
incorporates the common law system along with the statutory law and the regulatory law.
Another important feature of the Indian Judicial system is that our system has been designed
on the pattern of the adversarial system. This is to be expected since courts based on the
common law system tend to follow the adversarial system of conducting proceedings instead
of the inquisitorial system. In an adversarial system, there are two sides in every case and
each side presents its arguments to a neutral judge who would then give an order or a
judgment based upon the merits of the case.
Indian judicial system has adopted features of other legal systems in such a way that they do
not conflict with each other while benefitting the nation and the people. For example, the

1
http://www.silf.org.in/16/indian-judicial-system.htm

6|Page
Supreme Court and the High Courts have the power of judicial review. This is a concept
prevalent in the American legal system. According to the concept of judicial review, the
legislative and executive actions are subject to the scrutiny of the judiciary and the judiciary
can invalidate such actions if they are ultra vires of the Constitutional provisions. In other
words, the laws made by the legislative and the rules made by the executive need to be in
conformity with the Constitution of India.2
About AP Shah:
Justice (Retd.) Ajit Prakash Shah (born 13 February 1948 at Solapur) 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 is known for his bold judgments.
Justice Shah did his graduation from Solapur and attended Government Law College,
Mumbai for his law degree. After a short span of practice at the Solapur District Court, he
shifted to the Bombay High Court in 1977 and joined the chambers of the then-leading
Advocate Shri S.C. Pratap. He gained experience in civil, constitutional, service and labour
matters.
Justice Shah was appointed Additional Judge of Bombay High Court on 18 December 1992
and became a permanent Judge of Bombay High Court on 8 April 1994. He assumed charge
as the Chief Justice of Madras High Court on 12 November 2005 and was transferred as the
Chief Justice of Delhi High Court on 7 May 2008. Since June 2011, Justice Shah has been the
Chairperson of Broadcasting Content Complaints Council (BCCC), the self-regulatory body
for non-news general entertainment channels (GECs) set up by the Indian Broadcasting
Foundation (IBF).
The Quality of Justice:
This is one of the remarkable works of former Chief Justice of Delhi High Court. In this text
Justice Shah has talked about the deteriorating condition of the Indian Judicial System. He
has compared the scenario of Indian Judicial System to the Judicial System of other countries
like France. There is a big difference in the judicial systems of both the countries. In India
there is a lack of judges and the judges of subsidiary courts are promoted to the post of the
judge of higher courts, the scenario is completely different in France and other foreign
countries. In other countries the people study law to contribute to the judiciary of their own
country. Justice Shah has shown his interest in the idea of recruiting judges through the All
India Judicial Services. Prime Minister Narendra Modi also revisited the idea of recruiting

2
http://www.silf.org.in/16/indian-judicial-system.htm

7|Page
judges through All India Judicial Services in a speech commemorating 50 years of the Delhi
High Court. Justice Shah supported this idea to attract talent.
Justice Shah also discussed that the vacancies in the courts can only be filled if the judiciary
is able to attract talents. It is only because of the failure of Indian Judiciary to attract talent
that there are so many vacancies and the judges need to be promoted even if they are not
eligible enough. This can have far-reaching impact on the quality of justice and on people’s
access to justice as well. For decades, the judiciary has been asked to do something about
judicial recruitments, but always stops short of taking an initiative in the formation of an
AIJS. The prime minister and the chief justice of India have raised red flags about the
problems that plague the courts. There is no time better than now to start doing something
about these problems.3

3
http://indianexpress.com/article/opinion/columns/judges-appointment-indian-judiciary-all-india-judicial-
service-3736041/

8|Page
 THE QUALITY OF JUSTICE

This is one of the remarkable works of former Chief Justice of Delhi High Court. In this text
Justice Shah has talked about the deteriorating condition of the Indian Judicial System. He
has compared the scenario of Indian Judicial System to the Judicial System of other countries
like France. There is a big difference in the judicial systems of both the countries. In India
there is a lack of judges and the judges of subsidiary courts are promoted to the post of the
judge of higher courts, the scenario is completely different in France and other foreign
countries. In other countries the people study law to contribute to the judiciary of their own
country. Justice Shah has shown his interest in the idea of recruiting judges through the All
India Judicial Services. Prime Minister Narendra Modi also revisited the idea of recruiting
judges through All India Judicial Services in a speech commemorating 50 years of the Delhi
High Court. Justice Shah supported this idea to attract talent. Justice Shah also discussed that
the vacancies in the courts can only be filled if the judiciary is able to attract talents. It is only
because of the failure of Indian Judiciary to attract talent that there are so many vacancies and
the judges need to be promoted even if they are not eligible enough. This can have far-
reaching impact on the quality of justice and on people’s access to justice as well. For
decades, the judiciary has been asked to do something about judicial recruitments, but always
stops short of taking an initiative in the formation of an AIJS. The prime minister and the
chief justice of India have raised red flags about the problems that plague the courts. There is
no time better than now to start doing something about these problems.4
In a recent speech commemorating 50 years of the Delhi High Court, Prime Minister
Narendra Modi revisited the possibility of recruiting judges through an All India Judicial
Service (AIJS). This is an idea I have been personally interested in for many years. Public
debate often gets hijacked by discussions on the number of judges, but it rarely considers the
quality of judges themselves. The real question at hand is whether the judiciary is in a
position to recruit the best talent required for fulfilling the role that is demanded of a judge.
Here, the judiciary must introspect on some issues. For instance, why are there always 20 per
cent vacancies in the courts? Vacancies are never filled in time. Why do these positions
remain empty? The answer is simple. Because the judiciary is unable to attract talent. To
compound things further, today the subordinate judiciary depends entirely on state
recruitment. But the brighter law students do not join the state judicial services because they

4
http://indianexpress.com/article/opinion/columns/judges-appointment-indian-judiciary-all-india-judicial-
service-3736041/

9|Page
are not attractive. With no career progression, no one with a respectable Bar practice wants to
become an additional district judge, and deal with the hassles of transfers and postings.
Consequently, the quality of the subordinate judiciary is by and large average, although there
are some bright exceptions. By extension, at least one-third of high court judges elevated
from the subordinate judiciary are also mostly average. As a result, the litigants are left to
suffer. There are many ways to think about attracting good talent. In the French model,
students pick the judiciary as a stream early in their legal studies itself. Just as dentistry is a
specialisation in medicine, judging is a specialisation in law. I attempted something similar as
chief justice of the Delhi High Court, introducing a one-year diploma on “judging” in law
schools, with the eventual idea to have a full-fledged course for judges, but it did not take off.
In truth, the answer to a great many problems in our judiciary lies in an All India Judicial
Service (AIJS). This reform is urgently due. We have talked about it for years, but not done
anything of consequence.
When our Constitution was drafted, the AIJS discussion got sidelined. The end result was
Article 235, under which the entire judicial machinery at the subordinate level was under the
control of the high courts. The Constitution drafting committees also discussed Article 312,
conferring power on the Parliament to create All India Services. At that time, it was doubtful
whether the judicial services could be organised on a national scale under Article 312. After
the Swaran Singh Committee’s recommendations in 1976, Article 312 was modified to
include the judicial services, but it excluded anyone below the rank of district judge.
Therefore, the trial courts are completely eliminated.5
Meanwhile, the First Law Commission of India (LCI) came out with its comprehensive, and
now legendary, 14th Report on Reforms on the Judicial Administration, which recommended
an AIJS in the interests of efficiency of the judiciary. However, the proposal was opposed as
being impractical, and was shelved. In reality, the opposition came out of inertia, not from an
assessment of whether it was feasible or not; and it came mainly from the judiciary. In its
77th Report, dealing with “Delay and arrears in trial courts”, the LCI once again said the
AIJS needed serious consideration. The idea of an AIJS was approved in the chief ministers’
conference in 1982, and most states were in agreement. But a few points were raised in
opposition consistently: First, that lack of knowledge of regional languages would affect
judicial efficiency; second, that avenues for promotion would be curtailed for those who had
already entered through the state services; and third, that this would lead to an erosion of the
5
http://indianexpress.com/article/opinion/columns/judges-appointment-indian-judiciary-all-india-judicial-
service-3736041/

10 | P a g e
control of the high courts over the subordinate judiciary, which would, in turn, affect the
judiciary’s independence. Each of these grounds, which are still echoed by many, was dealt
with by the LCI’s 116th Report on the “Formation of an All India Judicial Service”.
If we were to implement the scheme of the 116th report, direct recruitment of judges from the
entry level onwards would be handled by an independent and impartial agency. The process
of recruitment would be through open competition, and if designed with the right incentives
of pay, promotion and career progression, it could potentially become an attractive
employment avenue for bright and capable young law graduates. The judiciary needs such
youngsters to take over the system.
The idea of an AIJS has not merely been academic, and the Law Commission has not been its
solitary votary. The Supreme Court has itself said that an AIJS should be set up, and has
directed the Union of India to take appropriate steps in this regard. This has happened at least
twice. It is clear that the judicial side of the court machinery is entirely in favour of an AIJS.
It is the administrative side that has been opposing this idea. It is extremely disappointing that
the opposition is coming from within the judiciary itself, with certain high courts opposing
the idea without understanding the issues properly. Without a push from the judiciary, the
AIJS will never come to fruition. In a longer-term perspective, uniformity in selection
processes and standards, as offered by an AIJS, has many advantages. It will improve the
quality of judicial officers in high courts, and one-third of the judges would enter the high
courts through the route of promotion from subordinate courts. By extension, judges of the
Supreme Court are drawn from the high courts. In this process, the persons eventually
selected into the judiciary would be of proven competence. Simultaneously, the quality of
adjudication and the dispensation of justice would undergo transformative changes across the
judicial system, from the lowest to the highest levels.6
A career judicial service will make the judiciary more accountable, more professional, and
arguably, also more equitable. This can have far-reaching impact on the quality of justice,
and on people’s access to justice as well. For decades, the judiciary has been asked to do
something about judicial recruitments, but always stops short of taking an initiative in the
formation of an AIJS. The prime minister and the chief justice of India have raised red flags
about the problems that plague the courts. There is no time better than now to start doing
something about these problems

6
http://indianexpress.com/article/opinion/columns/judges-appointment-indian-judiciary-all-india-judicial-
service-3736041/

11 | P a g e
 JUSTICE AP SHAH

Justice (Retd.) Ajit Prakash Shah (born 13 February 1948 at Solapur) 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 is known for his bold judgments.
Justice Shah did his graduation from Solapur and attended Government Law College,
Mumbai for his law degree. After a short span of practice at the Solapur District Court, he
shifted to the Bombay High Court in 1977 and joined the chambers of the then-leading
Advocate Shri S.C. Pratap. He gained experience in civil, constitutional, service and labour
matters.
Justice Shah was appointed Additional Judge of Bombay High Court on 18 December 1992
and became a permanent Judge of Bombay High Court on 8 April 1994. He assumed charge
as the Chief Justice of Madras High Court on 12 November 2005 and was transferred as the
Chief Justice of Delhi High Court on 7 May 2008.
Since June 2011, Justice Shah has been the Chairperson of Broadcasting Content Complaints
Council (BCCC), the self-regulatory body for non-news general entertainment channels
(GECs) set up by the Indian Broadcasting Foundation (IBF).7
He is a man who would always be credited with setting a community, whose existence this
society always denied, free from the shackles of shame and harassment. At a time when the
Indian Government itself was split over whether it should support the case or go against it, he
stuck to the principles of justice and through his well-articulated judgment, showed that a
society should be “inclusive”, and a country should be non-discriminating against its own
citizens. He has not only been the messiah of the LGBT community, but also of poor people
at large, who, through his rulings found justice. He has been credited with a number of
historical rulings. Although he retired in February with a “hurt feeling” that he was never
elevated to Supreme Court, he has surely left his mark on the pages of history. For a man of
such stature, and as a community who would always be indebted to him, Gay laxy pays its
tribute to Justice A.P. Shah through this article and analyses how his various verdicts and
landmark judgments have had a major impact on society.

7
https://en.wikipedia.org/wiki/Ajit_Prakash_Shah

12 | P a g e
Biography

Justice Ajit Prakash Shah was born on 13 February, 1948 at Solapur and hailed from a family
of lawyers, lending him a deep understanding of legal matters from an early age. Upon
completing his graduation from Solapur, Justice Shah obtained his law degree from
Government Law College, Mumbai. After practicing at the District Court in Solapur for a
short period, Justice Shah shifted to the Bombay High Court in 1977 and joined the chambers
of the then-leading Advocate Shri S.C. Pratap, gaining experience in civil, constitutional,
service and labour matters. He was appointed as an Additional Judge of Bombay High Court
on 18 December, 1992 and became the permanent Judge of Bombay High Court on 8 April,
1994. He assumed charge as the Chief Justice of Madras High Courton 12 November, 2005
and was transferred as the Chief Justice of the Delhi High Court on 7 May, 2008.

Rulings

Though his name would probably become (rather has become) synonymous with the ruling
on Sec 377, Justice Shah’s other verdicts in various cases have had an equal impact on the
society, if not less. Whether it came to protecting the rights of AIDS patients in employment
or initiating prison reforms, his judgments have always been hailed as landmark. Some of the
more important ones that he delivered are:
Freedom of Speech and Expression: In 1997, in Anand Patwardhan vs. Union of India case,
Justice Shah quashed the orders of the Government not to telecast the President’s Award
winning documentaries -“In Memory of Friends” (based on terrorism and violence in Punjab)
and ‘Ram Ke Naam’ (based on Ayodhya issue)- and directed Doordarshan to telecast the said
documentaries.8

Women Related Law

It recognized the right of Muslim women to receive maintenance under Sections 125 and 127
beyond iddat period and the right of second wife to receive maintenance under Hindu
Marriage Act.
Environment and Ecological matters: Issued directions for beautification and maintenance of
Girgaon Chowpaty and Juhu Beach. Interpreted Maharashtra Forest (Acquisition) Act
8
http://www.gaylaxymag.com/exclusive/a-tribute-to-justice-a-p-shah/

13 | P a g e
highlighting the restrictions and dereservation of forest and use of forest land for non-forest
use and issued directions to save Hill Stations like Mahabaleshwar and Panchgani.
Protection of disabled person: Justice Shah adopted a proactive stance towards the rights of
disabled persons. In one judgment, he restrained the Central and Western Railways, Railway
Police and Municipal Corporation from taking any action against the blind vendors/hawkers
and directed them to frame a scheme for earning of their livelihood. In another case, he
protected the rights of students suffering from Dyslexia and issued directions to ensure
implementation of reservation policy for disabled in the State Government and State
Corporations as well as local bodies. He also ordered Railways and Metropolitan Transport
Corporation, Chennai to ensure barrier free environment in their premises and directed the
MTC to make their buses disabled friendly. Besides, he initiated steps to make the Chennai
High Court disabled friendly.9
PIL: While in Bombay Court, in July 2004, a division bench led by Justice A.P. Shah
imposed a penalty of Rs 20 lakhs on Shiv Sena and BJP for a bandh called in by the party, as
such bandhs. The bench held that no political party had any legal right to call for a bandh and
such a bandhs encroached upon the fundamental rights of citizens and political parties could
not hold the public members at ransom. He also issued various directions for reforms of
prisons, particularly in the context of women prisoners and their children, as well as for
proper rehabilitation of nearly 2000 families displaced by Tarapur project. Furthermore,
Justice Shah recognized the rights of AIDS patients in employment.
Decriminalizing Homosexuality: The bench comprising of Justice A.P. Shah and Justice S.
Muralidhar, on 2nd July, 2009, ruled that Sec 377 would no longer apply to consenting adults
engaging in same- sex relations. The judgment was based on strong scientific evidences that
pointed to the fact that homosexuality is not unnatural and NACO’s recommendation that Sec
377 was a major impediment in the fight against HIV/AIDS.10
RTI Act: In another landmark judgment, a bench comprising of Justice Shah, Justice S.
Muralidhar and Justice Vikramjit Sen held that the office of the Chief Justice of India (CJI) is
a “public authority” that comes within the ambit of the Right to Information (RTI) Act and
the senior most judge is obliged to share details of his assets under this act, thus bringing CJI
under the purview of RTI.

9
http://www.gaylaxymag.com/exclusive/a-tribute-to-justice-a-p-shah/
10
http://www.gaylaxymag.com/exclusive/a-tribute-to-justice-a-p-shah/

14 | P a g e
Pro-poor Rulings: Justice Shah has also delivered rulings that have protected the poor from
harassment. Pointing that “poverty is not a crime”, he prevented Delhi Govt. from sending a
large number of beggars to their native state. Again, during the chilling winter, when the
MCD demolished a night shelter for the homeless on Pusa road, he took note of a newspaper
article and rebuked MCD for such an inhuman act.
Other laws: Delivered several important judgments pertaining to Admiralty Act, Trade Mark
and Patent Act, Service and Labour laws.

Reforms
On a personal level too, Justice Shah directed various steps for computerisation and
networking of all courts in Tamil Nadu, including introduction of touch-screen kiosks, digital
boards etc. He took leading role in organizing the programmes relating to sensitization of
Judicial Officers, Judges, Family Court Judges etc regarding Gender Justice and organized
various training programmes for imparting training to Judicial Officers on the subject of
Juvenile Justice with the help of TISS and UNICEF. He gave impetus to mediation
movement in Maharashtra, recognized movement of Lok Adalat and also started Pension Lok
Adalats.11

Analyzing the judgment on 377

The judgment on Sec 377 is based on four basic concepts of right to dignity, privacy, equality
and non-discrimination. It also clearly differentiated between public morality and
constitutional morality. Explaining how Sec 377 violated Article 21 of Indian Constitution,
which guaranteed the right to privacy and dignity, the Justices had said, “In the Indian
Constitution, the right to live with dignity and the right of privacy both are recognized as
dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalizes his or
her core identity solely on account of his or her sexuality and thus violates Article 21 of the
Constitution.”
Furthermore, the meaning of sex in Article 15 was construed to include under its realm sexual
orientation. “Article 15 prohibits discrimination on several enumerated grounds, which
include ‘sex’…We hold that sexual orientation is a ground analogous to sex and that
discrimination on the basis of sexual orientation is not permitted by Article 15. Further,
Article 15(2) incorporates the notion of horizontal application of rights… In our view,

11
http://www.gaylaxymag.com/exclusive/a-tribute-to-justice-a-p-shah/

15 | P a g e
discrimination on the ground of sexual orientation is impermissible even on the horizontal
application of the right enshrined under Article 15,” they declared.
Another key argument used by the Govt. in this case was that of “public morality”. However,
the court ruled that public morality was based on shifting and subjecting notions of right and
wrong and that if there was any type of “morality” that could pass the test of compelling state
interest, it must be “constitutional” morality and not public morality. “To stigmatise or to
criminalise homosexuals only on account of their sexual orientation would be against the
constitutional morality,” the court held.
Elucidating on how Sec 377 was in violation of the equality granted to every citizen by the
Constitution, the Judges added, “A provision of law branding one section of people as
criminal based wholly on the State’s moral disapproval of that class goes counter to the
equality guaranteed under Articles 14 and 15 under any standard of review.”
Finally, the judges cited Pandit Nehru’s speech delivered while moving the ‘Objective
Resolution’ on December 13, 1946, “Words are magic things often enough, but even the
magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s
passion…” and concluded that the underlying theme of the Indian Constitution is that of
‘inclusiveness’.

Retirement of Justice AP Shah

More than a year after the Supreme Court collegium bypassed him for elevation to the apex
court, Chief Justice of Delhi High Court Justice A P Shah chose the day before his retirement
to publicly express his "sense of hurt".
The Chief Justice under whom the Delhi High Court legalised gay sex, ruled that the office of
the Chief Justice of India came under the Right to Information Act and forced the Delhi
government to come up with new parole guidelines, Shah said: "It is for the people to judge
whether I deserved (to be elevated to the Supreme Court) or not. But I cannot pretend that I
am not hurt. A sense of hurt is always there."12
The 62-year-old judge had kept quiet at the time the collegium overlooked him — one of the
senior most High Court chief justices — while recommending names of other junior judges in
October 2008 for the apex court. The move was widely questioned, but after initial
reluctance, the government had accepted the collegium's decision.

12
http://archive.indianexpress.com/news/with--sense-of-hurt--chief-justice-a-p-shah-author-of-landmark-
rulings-retires-from-hc/578909/

16 | P a g e
Set to retire from office on Friday, Shah, however, added "these things happen in life" and
said the disappointment didn't diminish his "enthusiasm for the institution".
During his 21-month tenure as the Chief Justice, Shah came to be known for pro-poor
policies, transparency, and reasonableness in public policies and for taking up the cause of
the disabled.
Speaking about the landmark judgment legalising consensual homosexual sex between
adults, he said: "I did not switch on TV channels till late in the evening because I was not
sure about the reactions from various quarters. When I attended a workshop with some
German members and also some gay rights activists in 1997, I had categorically said to them
that it would be very difficult for an Indian court to legalise homosexual sex. I did not realise
it then that I would be deciding the issue one day."13

13
http://archive.indianexpress.com/news/with--sense-of-hurt--chief-justice-a-p-shah-author-of-landmark-
rulings-retires-from-hc/578909/

17 | P a g e
 LANDMARK JUDGEMENTS OF AP SHAH

Naz Foundation Case

Naz Foundation v. Govt. of NCT of Delhi is a landmark Indian case decided by a two-judge
bench of the Delhi High Court, which held that treating consensual homosexual sex between
adults as a crime is a violation of fundamental rights protected by India's Constitution. The
verdict resulted in the decriminalisation of homosexual acts involving consenting adults, in
the jurisdiction of the Delhi High court. This was later challenged in the Supreme Court of
India. Section 377 of the Indian Penal Code, introduced during British rule of India,
criminalizes "carnal intercourse against the order of nature". This phrase was interpreted to
mean all forms of sexual activity other than heterosexual penile-vaginal intercourse.
The movement to repeal Section 377 was led by the Naz Foundation (India) Trust, a non-
governmental organization, which filed a lawsuit in the Delhi High Court in 2001, seeking
legalisation of homosexual intercourse between consenting adults. This was the second such
petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan. In 2003, the Delhi High
Court refused to consider a petition regarding the legality of the law, saying that the
petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court
of India against the decision of the High Court to dismiss the petition on technical grounds.
The Supreme Court decided that Naz Foundation had the standing to file a public interest
lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the
merits. In 2006, the National AIDS Control Organisation filed an affidavit stating that the
enforcement of Section 377 violates LGBT rights. Subsequently, there was a significant
intervention in the case by a Delhi-based coalition of LGBT, women's and human rights
activists called "Voices Against 377", which supported the demand to "read down" section
377 to exclude adult consensual sex from within its purview.14
The case came up for hearing before a bench comprising Chief Justice Ajit Prakash Shah and
Justice S. Muralidhar, and the judgment was delivered on 2 Jul 2009. The Court located the
rights to dignity and privacy within the right to life and liberty guaranteed by Article 21
(under the fundamental Right to Freedom charter) of the Constitution, and held that
criminalization of consensual gay sex violated these rights. The Court also held that Section
377 offends the guarantee of equality enshrined in Article 14 (under the fundamental Right to
Equality charter) of the Constitution, because it creates an unreasonable classification and

14
https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi

18 | P a g e
targets homosexuals as a class. Public animus and disgust towards a particular social group or
vulnerable minority, it held, is not a valid ground for classification under Article 14. Article
15 of the Constitution forbids discrimination based on certain characteristics, including sex.
The Court held that the word "sex" includes not only biological sex but also sexual
orientation, and therefore discrimination on the ground of sexual orientation is not
permissible under Article 15. The Court also noted that the right to life under Article 21
includes the right to health, and concluded that Section 377 is an impediment to public health
because it hinders HIV-prevention efforts.15
The Court did not strike down Section 377 as a whole. The section was declared
unconstitutional insofar it criminalises consensual sexual acts of adults in private. The
judgement keeps intact the provision insofar as it applies to non-consensual non-vaginal
intercourse and intercourse with minors. The court stated that the judgement would hold until
Parliament chose to amend the law.
According to an eyewitness account, as the Chief Justice read out the conclusion, "an audible
gasp went around the room. By the time the Chief Justice had finished reading the conclusion
of the judgment, people were openly weeping and there were handshakes and hugs all
around." Within hours, news of the judgment was being carried by international news sites.
Lawrence Liang called it India's Roe moment. Activists, commentators and organizations like
UNAIDS lauded the decision, while some religious leaders and politicians voiced displeasure
over the judgment.16 Some special leave petitions were filed in the Supreme Court requesting
an interim stay of the judgment, pending an appeal. However, the Supreme Court rejected
those requests. A batch of appeals were filed with the Supreme Court, challenging the Delhi
High Court judgment. On 27 March 2012, the Supreme Court reserved verdict on these. After
initially opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any
appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian
Penal Code] criminalises consensual sexual acts of adults in private [before it was struck
down by the High Court] was imposed upon Indian society due to the moral views of the
British rulers." On December 11, 2013, the Supreme Court's two member bench (Justices G.
S. Singhvi and S. J. Mukhopadhaya) overturned the decision of the Delhi High Court. It said
that the 2009 order of the High Court is "constitutionally unsustainable as only Parliament
can change a law, not courts"17

15
https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#Judgement
16
https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#Judgement
17
https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#Significance

19 | P a g e
 JUSTICE AP SHAH AS THE CHAIRMAN OF LAW COMMISSION OF
INDIA

As usual, leaving an indelible mark as Chairman of the 20th Law Commission of India,
Justice Shah just finished his term completing the 3-years on this 31st August. Though he
could not make it to the Supreme Court, thanks to the ‘collegiums’, he carries much aura and
commands respect than many of the retired Supreme Court Judges of recent times. He is
known for his unconventional progressive views; the ‘Naz Foundation’ judgment speaks
louder about his approach and outlook as a Judge. His tenure as the Chief Justice of Delhi
High Court is marked by many important judgments, which include the declaration of office
of Chief Justice of India under the ambit of RTI Act.
Agenda of Law Commission Under the Chairmanship of Justice AP Shah
The agenda of the Twentieth Law Commission was to review/repeal of obsolete laws, to deal
with law and poverty, to review the system of judicial administration, to examine and suggest
ways of improvement of the existing laws in the light of Directive Principles of State Policy,
to examine the existing laws with a view for promoting gender equality, to revise and to
remove ambiguities of the Central Acts of general importance, to repeal obsolete laws and to
convey to the Government its views on any subject relating to law and udicial administration
that may be specifically referred to it by the Government through Ministry of Law and
Justice, to consider the requests for providing research to any foreign countries, and to
examine the impact of globalization on unemployment, food and security and recommend
measures to protect the interests of the marginalised.18
Reports
Though there are many reports by the Law Commission during the Chairmanship of A.P
Shah, some of the important ones are highlighted here.
Based on the judgment in Public Interest Foundation & Others V. Union of India, the
Commission worked specifically on ‘curbing criminalization of politics and needed law
reforms’, ‘impact and consequences of candidates filing false affidavits and needed law
reforms to check such practice and submitted its 244th report on Electoral Disqualification in
2014. This was widely discussed in 255th report. The 255th report of law Commission deals
with Electoral Reforms in India and suggested comprehensive measures for changes in the
law.

18
http://www.legallyindia.com/the-bench-and-the-bar/cool-law-commission-20150507-5932

20 | P a g e
The 245th Law Commission report dealt with the arrears and backlog of cases largely on
poor judicial infrastructure. Law Commission suggested in creation of additional courts for
speedy clearance of cases and deduction in costs.
The 246th Report came up with large amendments to the Arbitration & Conciliation Act
1996. The reforms dealt with tacking issues of delay, costs, interim orders by tribunals,
institutional arbitration, automatic stay of enforcement of arbitral awards.
In its Report No.256 titled “Leprosy Affected Persons and the Laws applicable to them”
undertook the task of identifying laws which can either be repealed or which need
amendments in view of the existing climate of economic liberalization. The Commission
recommended repeal of 288 obsolete laws. On a request from the Leprosy Mission Trust of
India, the Commission conducted the study of repealing laws discriminatory towards people
affected by leprosy.19
Report No.257 titled “Reforms in Guardianship and Custody Laws in India” emphasized the
“welfare of the child” as the paramount consideration adjudicating custody and guardianship
matters. The Commission discussed the Shared Parentage concept in India. The parentage
system across the world was studied for the same, the views of the Commission was centred
around strengthening the welfare principle in the Guardians and Wards Act, 1890, providing
equal legal status to both parents with respect to guardianship and custody, providing detailed
guidelines to help decision-makers assess and providing for the option of awarding joint
custody to both parents.
On the advice of the Prime Minister’s Office, the Prevention of Bribery of Foreign Public
Officials and Officials of Public International Organizations was referred to Law
Commission in July this year, to submit its recommendations.
Recognizing the importance and relevance of Early Childhood Development from the
perspective of national and human resource development the Commission formed a Sub-
Committee under the chairmanship of Prof. (Dr.) Mool Chand Sharma, Member, which, after
several rounds of discussions and deliberations, came up with a draft Report on the issue
finalized as Report No.259 titled “Early Childhood Development and Legal Entitlements”.
To address the risks to international investment treaties in the absence of clear legal position,
the Commission decided to take up the Draft Model Bilateral Investment Treaty by
Government of India for study and after several rounds of discussions and deliberations,

19
http://www.legallyindia.com/the-bench-and-the-bar/cool-law-commission-20150507-5932

21 | P a g e
came up with several suggestions on specific clauses in the form of Report No.260 titled,
“Analysis of the 2015 Draft Model Indian Bilateral Investment Treaty”.
Report No. 261 was on the “Need to Regulate Pet Shops and Dog and Aquarium Fish
Breeding.” The report observes that pet shops and breeders violate provisions of animal
welfare laws and recommends that it is necessary to regulate their practices. Reports suggest
that these animals in pet shops are kept in terribly inhumane conditions and there are no
regulations protecting them.
Finally, and the most important one was based on a reference from the Supreme Court in
Santosh Kumar Satishbhushan Bariyar v. Maharashtra [(2009) 6 SCC 498] and Shankar
Kisanrao Khade v. Maharashtra20 and Shankar Kisanrao Khade v. Maharashtra21 to study the
issue of the death penalty in India which came up with the latest Report titled No.262 titled
“The Death Penalty”. The report is a sort of acknowledgement of arbitrariness remained in
the adjudication of death penalty cases. According to the Commission, the cultural context of
the country has changed drastically since 35th Report when rarest of rare case doctrine was
applied in Bachan Singh case .Justice A.P. Shah, while advocating for abolition, cautioned
“Although there is no valid pen logical justification for treating terrorism differently from
other crimes, concern is often raised that abolition of death penalty for terrorism related
offences and waging war, will affect national security.”22
The Law Commission of India had also held a one-day consultation on the death penalty on
11th July, 2015 at the India Habitat Centre in New Delhi. Four key themes were discussed at
the consultation, i.e., Arbitrariness and Discrimination, State of the Criminal Justice System,
The Penological Purpose of the Death Penalty and the Way Forward: Retention, Reform, and
Abolition. The Court in the Bachan Singh Case had relied upon on the 35th Report of the
Law Commission. According to J. Shah, it needs to be re-visited since it was submitted in
1967, and hence did not account for the over-hauling of the death penalty framework in the
Code of Criminal Procedure, 1973. There are inconsistencies in the system and these changes
in India make it an opportune moment to revisit questions of the constitutionality and
desirability of the death penalty since the poor and downtrodden usually go to the gallows.
Justice Shah also spoke at a lecture on ‘Universal Abolition of Death Penalty: A Human

20
[(2009) 6 SCC 498]
21
[(2013) 5 SCC 546]
22
https://docs.google.com/viewerng/viewer?url=http://judicialreforms.org/wp-
content/uploads/pdf/Indian_Express_Justice_Shah_interview.pdf&hl

22 | P a g e
Rights Imperative’, which was organized by Law Commission of India in association with O
P Jindal Global University (OPJGU) and National Law University.
Social Media Presence of LCI
To make its presence more relevant, the Commission joined the Facebook and Twitter. The
Commission has also created a YouTube Channel for reaching out. The Commission also
adopted a new logo.
Views by Justice AP Shah
According to Justice Shah the goal of the 20th commission was to prepare recommendations
in the form of draft bills, instead of mere guidelines which will contributes a greater input to
the entire legislative exercise undertaken by the government as well as by the Parliament.
Elaborating the point, he says that the pattern of the work adopted in the Commission is to
first hold an in-house meeting of the Commission members on the subject under reference
from the government. The Commission then constitutes a cross-sector group comprising
necessary expertise of national level from various fields involving professionals. Sometimes,
the Commission prepares a consultation paper highlighting various issues and inviting
suggestions and comments which are later analysed.
There are certain flaws that Justice Shah points at. He says that the funds allocated to the
Commission are inadequate and there is even lack of resources which limits their general
interaction with the public. Commission has a completely outdated library presently housed
in the Indian Law Institute building. J. Shah states that the present tenure of the commission,
i.e., three years, is insufficient time to conceive and implement the proposals of the
Commission. According to him, it is high time that the Law Commission of India should be
given a statutory status.23

23
http://www.legallyindia.com/the-bench-and-the-bar/cool-law-commission-20150507-5932

23 | P a g e
 OPINIONS OF VARIOUS JUDGES ON THE JUDICIAL SYSTEM OF
INDIA

The impact of a malfunctioning judicial system on critical aspects of the economy is of major
concern. A market-based capitalist system can operate efficiently only if judicial processes
ensure a fair, effective and speedy disposal of disputes and provide a robust basis for
enforcing regulatory compliance and consumer protection. It must be evident to all that the
Indian judicial system does not serve these goals.24 With a pendency of 59,000 cases in the
Supreme Court (SC), over four million in high courts (HC) and a mind-boggling 25 million in
subordinate courts, the judicial system is virtually dysfunctional: In this state, it simply
cannot serve the needs of modern India trying to integrate with the global economy. The
enormous pendency engenders corruption and rent-seeking that, at times, even stains the
highest levels. The Indian judiciary, if not soon reformed, will become a huge drag on our
economic progress. In the above context, the new chief justice J.S. Khehar would do well to
focus on three crucial aspects. One, reduce pendency by rapidly filling vacancies in the high
courts. Two, make all judicial appointments, starting with HC judges, as transparent,
objective and merit-based as possible. Three, improve the relationship with the executive
because it is imperative that various branches work in tandem rather than at loggerheads if
India has to progress. The outgoing chief justice, T.S. Thakur, had made several public
statements, some rather emotional, on existing vacancies in HCs and the SC; he implicitly
held the government of India (GoI) responsible for this unacceptable situation. But these
assertions perhaps do not reconcile with the facts on the ground. First, the number of judges
in position has practically remained the same over the years with 648 judges in position in
November 2016, as compared to the previous highest of 639 in January 2014 and 630 in
January 2010. Second, if the new positions created over the last three years are discounted,
the number of HC vacancies in 2016 is lower at 258 than 443 in the previous year —
vacancies at present are in fact lower than in any year since 2008. Third, as many as 173 new
positions of HC judges have been created between 2014 and 2016 — as compared to a mere
20 between 2009 to 2013. Apparently, the Modi government, cognisant of the huge backlog,
tried to reinforce the judiciary since it took office. Therefore, it can hardly be its objective to
thwart appointments to fill existing vacancies. However, it is indeed a pity that positions
remain unfilled — the reason seems to be that the GoI and the SC have been unable to
reconcile their differences over the modalities of appointing new judges. This is a vexing
24
http://www.livelaw.in/dissenting-opinions-judges-supreme-court-india/

24 | P a g e
issue that has seen the GoI having to back off in the face of trenchant opposition from the SC
to any GoI attempt to dilute the autonomy of the SC collegium in making these appointments.
However, it is unarguable that these appointments should be made in the most transparent
manner and after an extensive search that seeks to identify the most meritorious candidates,
ensuring that those finally selected have been cleared on all counts of integrity, national
security and competence. The fact that the present system is not working adequately is borne
out by the experience of the Madhya Pradesh High Court, which considered 71 “so-called”
eligible advocates for appointment as judges. After scrutiny, only eight were recommended
by the HC collegium. Of these eight, the SC collegium recommended only three; after
required Intelligence Bureau (IB) inputs, only two names were recommended. Finally, only
one was appointed. This massive waste of time and resources should be avoided. 25 In this
context, I see merit in the GoI’s suggestion for appointing a Search Cum Evaluation
Committee (SEC). A SEC would assist HC and SC collegiums in expanding the zone of
consideration, undertaking due diligence and acquiring necessary clearances. The SEC will
only recommend candidates in the ratio of 5:1 for the HC and SC collegiums to then select
and forward to the GoI for required consultations. After due diligence, the rejection rate
should come down dramatically. Being a subordinate body, the SEC will not in any sense
restrict the supreme authority and autonomy of the SC collegium in the selection of judges. It
will only institutionalise the search and selection process, making it objective, transparent and
expeditious. With its composition of former judges, academics and other experts, the SEC
would effectively widen the zone of consideration, which, at present, is highly circumscribed.
For example, the Allahabad, Telangana and Andhra Pradesh HCs have 72,860 and 4,903
practising advocates who have completed 10 years of practice and are eligible as judges —
but without the SEC in place, it is impossible for existing collegiums to consider the entire set
of candidates. The selection process thereby inevitably becomes subjective and opaque. The
SEC can have a three-year tenure, its membership to be decided by the CJI in consultation
with the GoI. It will bring judicial appointments in line with the practice in vogue in the GoI
now, where senior-most appointments in the bureaucracy and regulatory bodies go through
search and selection committees before being recommended to the Appointments Committee
of the Cabinet for final approval. Let us hope that the setting-up of the SEC will merit an
urgent and positive consideration by the new CJI. He must surely realise that the present
impasse is only exacerbating the already acute problems facing India’s judiciary.

25
http://www.livelaw.in/dissenting-opinions-judges-supreme-court-india/

25 | P a g e
 CONCLUSION
Legal reform in India has been steered by dozens of its best legal minds since 1955, including
legendary attorneys general M.C. Setalvad and C.K. Daphtary, justice P.B. Gajendragadkar,
justice H.R. Khanna and justice V.R. Krishna Iyer.
Together, they and others have produced 256 reports (an average of just over four per year)
with advice on legal provisions that need to be changed, removed or introduced.
But the pace of often long-overdue or technical law reforms has not always been directly
proportional to the output of the Law Commission of India.
As opposed to its younger counterpart in the UK, where more than two-thirds of the
recommendations of the 50-year-old legal reform advisory body have been turned into law,
less than half of the 60-year-old Law Commission of India’s recommendations have been
implemented.
Ajit Prakash Shah, chairman of the current and 20th Law Commission, says, “I have been
informed that about 45% of the suggestions and recommendations in various reports
submitted so far (by all law commissions) have been implemented.”
Shah, a former Delhi high court chief justice, the architect of the Delhi high court’s
arbitration centre and the Bombay and Madras high courts’ mediation centres, is particularly
known for his pro-gay rights ruling in the 2009 Naz Foundation case. He took over as the
commission’s chairman on 21 November 2013 after previous chairman justice D.K. Jain
resigned, handing over his remaining term to Shah after less than eight months in the job. The
results in the 17 months since then: 13 reports and counting, with around four months to go
before his term ends on 31 August.
A record-high of 33 reports in three years was achieved by the 18th commission under justice
A.R. Lakshmanan between 2007 and 2009, while the 11th and 15th commissions filed 18
reports each.

Shah notes in an e-mail interview: “It is felt that suggestions made by the Commission in the
past remained unimplemented as they were in general form rather than structured norms or as
legal provisions. For example, the present Commission gave complete draft bills in
arbitration law, electoral reforms, establishment of commercial courts, prevention of
corruption. Some of these bills are either introduced or in the process of being introduced in
the Parliament.”

26 | P a g e
Out of the 13 released reports, at least three bills that have made it to Parliament credit or are
based on law commission reports people in the commission said: the Commercial Division
and Commercial Appellate Division of High Courts and Commercial Courts (based on the
253rd law commission report), the amendments to the prevention of corruption act (based on
the 254th report), the Repealing and Amending Bill 2014 (incorporating reports 248, 249,
250 and 251 on obsolete laws) have all been cleared by the cabinet or tabled in Parliament,
while the 246th report on arbitration and conciliation is likely to become a bill soon.
“Justice Shah wants policymaking to be grounded in rights, and also in empirical studies—in
experience-based accounts of how law is actually operated,” says Aparna Chandra, assistant
professor at National Law University (NLU), Delhi, who has been assisting the current
commission in a sub-committee.
Implementation

The law commission, as an intellectually independent wing of the law ministry’s department
of justice, may not be bound by the ideology of the ministry, but it sits within the ministry. It
has no mandate over ministerial agendas.
“The government has (sometimes) taken an excellent idea from the law commission and
ruined it. Just due to politics (and) the way the bureaucracy works. For instance, the national
tax tribunal which just got struck down by the Supreme Court (in part because it usurped
judges’ powers), originated from a report under the chairmanship of justice D.A. Desai who
had proposed a national tax court (presided over by judges instead of bureaucrats),” says
Alok Prasanna Kumar, senior resident fellow at the Vidhi Centre for Legal Policy, which was
instrumental in preparing the commercial courts bill that was tabled in Parliament this
session.
At other times, the law commission has failed to make a compelling case for a reform.
Kumar explains that the law commission, which began on a note where “legal luminaries
such as M.C. Setalvad and Nani Palkhivala quit their jobs and gave up a year of their
professional life to join it, as national service”, went through a phase where the initial high
quality of its reports wasn’t maintained.
He says its reports seemed to lack depth in analysis and didn’t feature sufficient breadth of
views on a topic and couldn’t form the basis for the kind of legal reform that it was originally
intended to assist.

27 | P a g e
“I think what happened at some point is that the law commission did not have sufficient
research backing and the institutional capacity to produce the kind of reports that the
government could take seriously,” says Kumar.
Shah notes: “One cannot easily conclude that (the present) rate of implementation (of
recommendations) is slow especially keeping in view that the Parliament has to deal with
varied views and other nuances before making a law.”
He adds that the goal of the 20th commission is to prepare recommendations in the form of
draft bills, instead of mere guidelines. This approach, he believes, “contributes a greater input
to the entire legislative exercise undertaken by the government as well (as) by Parliament”.
But legislation is not the only place where its recommendations may be taken seriously.
Vrinda Bhandari, currently a practising high court advocate and a three-month consultant at
the law commission in 2014-15, comments: “One thing people forget is that the law
commission reports really help in litigation later on. So it might not get taken up by the
government today but in some Supreme Court judgement it does get cited and helps
formulate a point.”
In the 1980 Bachan Singh vs State of Punjab case appealing a triple-murder death sentence, a
five-judge constitutional bench famously laid down the doctrine that the death penalty should
only be applied in the “rarest of rare” cases, relying heavily on Law Commission reports.
“A lot of the power that the law commission gets is because its recommendations are just
recommendations. If there was a sense of obligation associated with it, I am guessing there
would be a lot more interference with the law commission. In some senses, it is a quid pro
quo,” says Chandra.
Shah disagrees. He says : “It is high time that the Law Commission of India is given a
statutory status.”

Style

“When you have a broad vision (for law reform), then you will want to bring in voices from
the field,” says Chandra about Shah’s approach to steering the 20th commission.
The acknowledgments section of the 13 reports that have been released by the commission
under Shah each lists the names of at least a dozen academics, practising lawyers, senior
counsel, non-governmental organizations (NGOs), think-tanks and former judges.

28 | P a g e
And those are in addition to the chairman, four full-time members, two government officers,
four research staff members and five part-time members of the law commission.
“Since the time I joined the Commission, the pattern of the work adopted is to first hold an
in-house meeting of the Commission members on the subject under reference from the
government or Courts or taken suo moto on issues and nuances involved in the scope of the
study,” Shah explains.

“The Commission then constitutes a multi- or cross-sector group comprising necessary

expertise of national level from various fields involving professionals—lawyers, researchers,
senior scholars and professors from national law universities—and also if and when required
NGOs working on the subject. Sometimes, the Commission prepares a consultation paper
highlighting various issues and debates around the subject matter and inviting suggestions,
comments and views on such identified issues.
“Views and comments so received are analysed. Such analysis many times has proved very
relevant in Commission suggesting and making recommendations,” he adds.
According to Kumar, Shah has added “great rigour” to the process.
“Unless you have a peer review, you are not going to get a good report at the end of the day.
Especially in research and recommendation, unless you are able to test the ideas, unless
there’s a debate and breaking down at the conceptual level,” he says.
Chandra notes, “(Shah) makes a conscious effort to bring different sort of voices together so
that the report does not become one-sided. Most law commission chairmen have been former
SC (Supreme Court) judges, so connections wouldn’t have been a problem for them but it
depends more on who gets called. For instance, you want to bring in NGOs and take their
vision into account, which justice Shah does. If your view of law is very narrow, limited,
doctrinal, then you’ll probably think of only lawyers. So it definitely depends on the vision of
the chair.”
“There are six different sub-committees, and we have academics, senior counsel, human
rights lawyers, people who do more defence type work. So it’s actually a very good mix just
to ensure that you’re hearing every side,” says Bhandari, adding, “I think he’s made the law
commission, in that sense, a very open place.”

29 | P a g e
Process

Once the commission receives a reference from the Supreme Court or the legislature, or
decides to take up an issue of its own accord, a consultation paper is drafted with a list of
questions, says Bhandari. After the commission receives responses to this paper, it forms the
sub-committee that will work on a given report.
The sub-committee that is formed consists of members as well as researchers and consultants,
and an in-depth study of the subject under reference is carried out by the sub-committee,
which is in turn discussed in the full commission. The full-time members are closely involved
with such committees, explains Shah.
NLU’s Chandra, who is part of one such sub-committee, elaborates: “By the time we get a
report ready for discussion with even justice Shah, there are many rounds of internal
consultations that take place. (Another academic), I and a group of students sit together and
draft the rules. Then we have a round of discussion with lawyers about their experiences and
making sure that their perspective gets incorporated. Then discussion with judges for their
experience in the trial courts. After that the discussion goes to justice Shah.”
Kumar narrates his and Vidhi Centre’s experience on the commercial courts bill sub-
committee: “It took us a whole year—both the institution and the procedural rules. We would
meet once in two or three weeks depending on what needs to be done and would figure out
what needs to be done, we would go back, work, come back, discuss again.
“And it was a very rigorous and consultative process. Everything that we wrote we went over
again probably 20 times, to see if the idea is coming across clearly, to see if the concepts have
been explained properly, to see if our argument has been made out correctly...
“Justice Shah’s biggest (aim) was to make sure that we went very systematically, that we
were very thorough, that we covered all the bases; no scope to say that we have missed out on
a glaring thing.”
Chandra adds, “You should see the pace at which (Shah) works—sitting on Saturdays,
Sundays for long meetings. It also happens that everyone is a busy professional so it becomes
difficult to find time during the week.”

30 | P a g e
The gap

All the legal minds, other than the full-time members working with the law commission, are
serving the cause of legal reform in India without payment. In 2014, the chairman and
members were on a pay of Rs.90,000 and Rs.80,000 per month, respectively, while the
commission’s total 2013-14 budget was Rs.13.61 crore.
“The problem that the law commission faces is it has very little funds. As a result, what
happens is, (academics from NLU Delhi) have an advantage because of the fact that we are
sitting in Delhi (where the office of the commission is situated),” says Chandra.
“NLU Delhi gives us the support for our travel and logistical support. The law commission
doesn’t even have money to reimburse our own travel internally, so it doesn’t have financial
power to even involve academics from across the country,” Chandra adds.
She explains that law commission activities, which took a bigger chunk of her time than her
teaching responsibilities for more than a year, were possible due to support from vice-
chancellor Ranbir Singh, who has himself worked on reports released by previous
commissions.
Kumar says, “It wasn’t the easiest for (the sub-committee) to actually sit there for longer
periods of time. We could meet there but the facilities weren’t enough to actually research
there.”
Shah adds, “The funds allocated to the Commission are rather inadequate and that limits the
ability of the Commission to engage the best of resources. For example, we have a
completely outdated library presently housed in the ILI (Indian Law Institute) building.
Recently, the Commission has procured some legal software, although this is still insufficient
to meet the Commission’s requirements. Lack of adequate resources also limits the ability of
the Commission to interact with the general public.
“For example, the UK Law Commission conducts at least four to five public interactions/
consultations for every proposal in different parts of the country. Funds are required for
activities of such kind,” says Shah.
Shah also notes that the present tenure of the commission, of three years, is “a rather
insufficient time to conceive and implement the proposals of the Commission”, compared
with the UK where the tenure is for five years.

31 | P a g e
 BIBLIOGRAPHY

 Books
The Quality of Justice by AP Shah

 Websites
1. http://www.legallyindia.com/the-bench-and-the-bar/cool-law-commission-20150507-
5932
2. http://indianexpress.com/article/opinion/columns/judges-appointment-indian-
judiciary-all-india-judicial-service-3736041/
3. http://www.gaylaxymag.com/exclusive/a-tribute-to-justice-a-p-shah/#gs.znW5dy8
4. https://docs.google.com/viewerng/viewer?url=http://judicialreforms.org/wp-
content/uploads/pdf/Indian_Express_Justice_Shah_interview.pdf&hl
5. http://indianexpress.com/article/opinion/columns/judicial-system-indian-judiciary-
supreme-courtjudges-appointment-j-s-khehar-thakur-4501330/
6. http://www.livelaw.in/dissenting-opinions-judges-supreme-court-india/
7. http://archive.indianexpress.com/news/with--sense-of-hurt--chief-justice-a-p-shah-
author-of-landmark-rulings-retires-from-hc/578909/
8. http://www.thehindu.com/todays-paper/Delhi-High-Court-strikes-down-Section-377-
of-IPC/article16546323.ece
9. http://www.silf.org.in/16/indian-judicial-system.htm
10. https://en.wikipedia.org/wiki/Ajit_Prakash_Shah
11. https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi

32 | P a g e