Source: The Hindu 

Introduction 

The National Democratic Alliance's struggles to achieve a decisive electoral milestone may partly stem from its handling of legal issues. To address this, there's a need to reassess how legal consultancy is provided to the government. Establishing a Legal Advisory Council (LAC), similar to the Economic Advisory Council (EAC), could ensure continuous, informed, and empirical legal guidance. Such a body will help clarify legislative intent and enhance the government's decision-making process on legal matters. 

What is the Need of LAC? 

Electoral Bonds Scheme: 

• The Supreme Court declared the electoral bonds scheme unconstitutional for violating voters' right to information. 
• A proportionality test could have balanced privacy rights of donors with voters' right to information, potentially avoiding the court verdict. 

Aadhaar Act, 2016: 

• The Supreme Court's intervention in the Aadhaar case (K.S. Puttaswamy v. Union of India, 2018) could have been avoided with prior legal scrutiny. 
• A detailed examination of the Aadhaar Act's implications will have preempted the legal challenges. 

Transporter Strike: 

• Section 106(2) of the Bharatiya Nyaya Samhita, 2023 (BNS), caused a transporter strike due to concerns about disproportionate penalties. 
• The provision penalising hit-and-run offenders with up to 10 years in prison, was contested until the government agreed to amend it. 

What is the Proposal for Legal Advisory Council (LAC)? 

• The LAC will be a new body created to aid and assist the Prime Minister's Office (PMO), modeled after the existing Economic Advisory Council (EAC). 
• Its primary function will be to anticipate and respond to legal challenges proactively by analyzing potential impacts of contemplated laws and conducting legal research on contemporary issues. 
• The LAC will comprise legal luminaries, eminent jurists, prominent academicians, and researchers specializing in frequently legislated fields such as criminal law, trade law, and business laws. 
• Unlike the Law Commission of India (LCI), the LAC will work directly with the PMO and focus on forthcoming laws rather than reforms to existing legislation. 
• The LAC aims to fill a gap in legal advisory services by providing swift, dynamic responses to complex legal issues, potentially preventing constitutional challenges to new legislation. 

What are the Functions and Composition of LAC? 

Functions and Terms of Reference: 

• The LAC will provide legal analysis of issues referred to it by the Government of India. 
• It will analyze the possible impacts and outcomes of any contemplated law upon reference by the Prime Minister. 
• The LAC will conduct suo motu legal research and analysis on issues of contemporary importance. 
• Its role will be proactive, anticipating the impact, challenges, and lacunae in forthcoming laws under government consideration. 

Composition of LAC: 

• The LAC will comprise legal luminaries and eminent jurists. 
• It will include prominent academicians in the field of law. 
• Researchers with specializations in varied fields frequently legislated upon by governments will be part of the LAC. 
• Specialists in areas such as criminal law, trade law, international law, business laws, and taxation laws will be included in the council. 
• The composition aims to bring together diverse legal expertise to provide comprehensive and informed advice to the government. 

What will be the Role of National Law Universities? 

• National law universities possess the requisite expertise to assist the government in drafting constitutionally sound legislation. 
• These institutions are endowed with the intellectual capital and resources necessary to conduct comprehensive legal viability assessments of proposed legislation. 
• Regular consultation of research from national law universities by the government could significantly enhance the quality of legislative drafting. 
• Precedent for such collaboration exists, as exemplified by the Committee for Reforms in Criminal Laws at National Law University Delhi, which has made substantial contributions to the improvement of criminal legislation. 
• The Department of Consumer Affairs' engagement with law schools in developing the framework for the "right to repair" serves as another pertinent example of successful cooperation. 
• Closer collaboration between the government and these academic institutions could potentially mitigate legal challenges to legislation in the future. 
• Beyond mere problem avoidance, this partnership has the potential to yield more robust and efficacious legislation that better serves the public interest. 
• In essence, the utilization of national law universities as a resource in the legislative process represents a prudent strategy for the government to enhance its law-making capabilities. 

How Can Reassessing and Restructuring the Government's Legal Consultancy Improve Its Electoral Success and Legislative Effectiveness? 

• The central government's difficulty in securing a strong electoral mandate is partially attributed to its mismanagement of legal matters. 
• The current process of providing legal advice to the government requires thorough reassessment. 
• Well-organized think tanks could offer ongoing, evidence-based legal insights to help elucidate legislative intentions. 
• Improved legal handling could potentially strengthen the government's electoral performance. 
• The existing legal consultancy framework appears to be falling short of meeting the government's needs effectively. 
• Empirically validated legal inputs are crucial for informed decision-making in governance. 
• A more structured approach to obtaining legal expertise could enhance the government's legislative processes. 

What are the Key Differences Between the Proposed Legal Advisory Council (LAC) and the Existing Legal Consultancy Institution (LCI) in Terms of Proactivity, Effectiveness, and Function? 

• The LAC will take a proactive approach, anticipating legal impacts and challenges, while the LCI primarily reacts by recommending reforms to existing laws. 
• The LAC's role will involve assisting in the formulation of new laws, whereas the LCI focuses on reforms and amendments to existing legislation. 
• The LCI's effectiveness has been limited, with relatively few reports produced and only about half of its recommendations implemented. 
• The proposed LAC is envisioned as a more dynamic body capable of navigating the legal landscape more swiftly than the LCI. 
• The LAC will aim to leverage academic potential more effectively than the LCI has done. 
• Timely advice is expected to be a key feature of the LAC, addressing a shortcoming of the LCI's current operational model. 
• The LAC's proactive approach could potentially lead to more comprehensive and forward-thinking legal frameworks compared to the LCI's reactive model. 
• The proposed differences suggest that the LAC is designed to address perceived shortcomings in the LCI's structure and function. 

Conclusion 

The proposed Legal Advisory Council (LAC) represents a potentially significant improvement in the government's approach to legal matters. By providing proactive, timely, and empirically grounded legal advice, the LAC could help avoid costly legal missteps and strengthen legislative processes. Its structure, designed to leverage diverse legal expertise and academic insights, addresses key shortcomings of the existing Law Commission of India. If implemented effectively, the LAC could enhance the government's decision-making on legal issues, potentially leading to better governance and improved electoral outcomes. However, its success will depend on careful implementation and a commitment to heeding expert legal advice.