Enact Tort law, fill Law Commission vacancies: Madras High Court to Central govt

The Madras High Court recently ordered the Central government to consider introducing a Bill on torts within six months..The Bench of Justices N Kirubakaran (now retired) and Justice B Pugalendhi, passed the order while expressing its disapproval over the government keeping in cold storage the Law Commission's proposal and Court suggestions to enact a law on tortious liability,.The Court also called on the government to consider whether the Law Commission of India can be given statutory or Constitutional status.."Taking into consideration the excellent works done by the Law Commissions by way of revolutionary recommendations, it is appropriate for the Government to make it a statutory body or a constitutional body, like National Commission for Scheduled Caste and Scheduled Tribes and Backward Classes so that the recommendations made by the Commission are binding upon the Government. To do research work, sufficient funds have to be allocated for functioning of the Law Commission... The whole exercise done by the Law Commission with research and also consulting various stakeholders and making recommendations would become futile, if the recommendations are not acted upon," the Court said. .Further, the Court also directed the government to appoint the Chairman and Members of the next Law Commission of India within three months..A notification for the appointment of these members was issued on January 22, 2020 the Court acknowledged. The Law Commission members should be appointed within three months of receiving a copy of the order, the Court said. .Failing this, the Principal Secretary of the Union Ministry of Law and Justice and the Secretary, Implementation Cell, Department of Legal Affairs, Ministry of Law and Justice are to appear before the Court. .The Bench was dealing with a plea seeking the enactment of a law on “Torts and State Liability.” .The Court was informed that proposals to enact such a law was made by the first Law Commission as early as in 1956. After a Bill on this subject lapsed in Parliament, a similar Bill was re-introduced around 1967 with certain modifications. However, this Bill also got lapsed due to premature dissolution of the Lok Sabha in 1970 during Indra Gandhi’s regime.."Thereafter, no effort has been taken by successive Central Governments to bring such an enactment," the Court noted..The Court further observed that the Supreme Court had called for a law on torts and State liability to be introduced in various cases, including the cases of Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and others and Vadodara Municipal Corporation V. Purshottam v.Murjani and others. .Despite this, it was noted that there was no proposal at present to bring out a comprehensive legislation in the field of "torts and State liabilities for violation of fundamental rights of the citizens at the hands of the States and its officials."."It is not understandable as to how the Government despite first Law Commission's report and subsequent suggestions made by the Supreme Court, could still say that there is no proposal for such legislation. It will go to show that the Government has ignored the recommendations of the Law Commission as well as Supreme Court and kept it in cold storage and the same needs to be deprecated," the Court said..The Court also took critical note that there was no mechanism in place within the government to note down the suggestions given by Constitutional Courts when it comes to enactment of legislation or amendment of legislation or Rules. .The Bench, therefore, opined that a Nodal Officer should be appointed in each government department, who is well-versed with law and who could go through Court judgments to bring suggestions and recommendations by courts to the policy makers' knowledge regularly..The directions finally issued by the Court are as follows:.The government should consider introducing a bill, similar to which has been introduced in 1965 i.e. "Liability in Tort" bill introduced in 1965 and which was re-introduced in 1967, within a period of six months. The Central government should take a decision with regard to the suggestion for making the Law Commission of India either a statutory body or Constitutional body within six months. The Central government should allot more funds for research and more infrastructures to the Law Commission of India at the earliest. The Chairman and Members of the next Law Commission of India should be appointed within three months from the date of receipt of a copy of the order. A "Nodal Officer", well qualified in law, should be appointed in each department, to note down the Courts' recommendations to bring the same to the knowledge of the policy-makers of each department by way of periodical reports within six months from the date of receipt of a copy of the order..Unfortunate that government does not respond to suggestions of Law Commission, Court.In its order, the Bench has also expressed anguish over the slow response of government authorities when it comes to implementing the suggestions proposed by the Law Commission and courts..“What is the use of constitutional Courts in passing judgments, giving recommendations for enacting laws, when they are not actually acted upon by legislature? What is the use of having a Law Commission without its recommendation being acted upon?” the Bench queried..It may be difficult to maintain the separation of powers if the government does not heed to the suggestions made by the Court, it was added. "In the public interest only, Courts are making recommendations and giving suggestions for amendment. If it is not taken note of and acted upon for decades together seriously by legislature or Parliament necessarily, this Court has to necessarily rise up to the occasion and give appropriate directions in policy making and enactment of laws. It is the constitutional responsibility of this Court to safeguard public interest. It may be criticized as "judicial adventurism" or "judicial activism". But it is a necessary duty ... necessarily this Court has to exceed, and over reach the jurisdiction and cross the boundaries to give directions to legislature to enact a law", the Court's order reads..In so far as the Law Commission is concerned, the Bench commented that the low regard given to the Commission's suggestions may be a reason for the delay in appointing its members. ."It is very unfortunate that most of the recommendations are not acted upon. If such is the attitude of the Government, it would make one to think that there is no necessity for any Law Commission. Probably with that idea only, it seems the Central Government has not appointed any Chairman and Members. Even though the Law Commission was notified through notification dated 22.01.2020 and the 21st Law Commission's tenure got over in August 2018, it seems that for two years, there was no Law Commission. Even after constitution of Law Commission in 2020, so far, neither Chairman nor members have been appointed," the Court said. .Advocate R Alagumani appeared for the petitioner in the matter. Assistant Solicitor General Victoria Gowri appeared for the Central government authorities whereas Special Government Pleader M Muthugeethaiyan appeared for the State authorities.