Dr S Saraswathi
Prime Minister Narendra Modi set up a committee on 27th August to identify “obsolete laws”, which he believes, would hamper governance by creating “avoidable confusion”. The Government is presently preparing a Bill to repeal 36 archaic laws – an exercise not undertaken since 2001.
This is a follow up of Law Minister Ravi Shankar Prasad’s assurance given earlier this month that up to 300 outdated laws would be repealed in the winter session of Parliament. The task is projected as part of “good governance” promised by the BJP. Between 1950 and 2001, about 100 obsolete Acts were repealed leaving many more in the statute books. Additionally, there are archaic provisions in some Acts which have to be identified and deleted. After 2001, the weeding process was completely stopped. Result is huge garbage heaps mixed with laws that are currently in use!
Outdated laws and unwanted clauses in wanted laws exist in State laws also. The Concurrent List in the Constitution helps their growth. Every State is having its own system of civil procedure besides the Central code. This has also resulted in duplication.
Separating the two – relevant and irrelevant laws – is not an easy job. It is similar to separating bio-degradable and non-degradable waste with the difference that it is an intellectual exercise. A crude comparison indeed, but nonetheless undisputable! Even Law Commissions of England and Scotland in the words of their chairpersons confronted the problem of statute books “littered with obsolete provisions” and “getting rid of statutory dead wood”. The segregation is best done at the source.
All laws are not permanently required. Many are required for a certain period only which are sometimes not specified in the law. A provision that prescribes the specific period beyond which a law or regulation or a rule shall cease to have effect is known as “sunset provision” in public policy. When such a provision exists, specific extension of the law/regulation in the prescribed procedure is required for its continued operation.
The Roman law of the Mandate, which authorized the Senate to collect special taxes and mobilize troops during a prescribed period beyond which the power lapsed, is said to be the origin for the idea of including “sunset provision” in modern law. In common language, it is mention of expiry date for a law after which it cannot be applied unless renewed.
Most laws are not made with such “sunset provisions” with the result they clash with ideas of changing times and needs. Laws certified as “most ludicrous” were identified by Statute Law Revision Team in England in 2007. It repealed over 800 whole Acts and parts of about 50 Acts, concerned with a variety of subjects.
Since the 70s, ‘Sunset provision’ has become a subject for extensive discussions in many countries. Despite its significance, several laws have been passed without it. The reason could be the inability to foresee how long the law would be required. For example, in the UK, sunset clauses were provided initially for some parts in the Prevention of Terrorism Act 2005. However, the Act was passed without the provision as detentions under it were considered unlawful as these violated European human rights laws.
In Canada and Australia, sunset provisions have been inserted in the Terrorist Acts. Recall the sudden use of 150-year-old Sedition Law in India in 2012 – a law that has remained dormant for over a century- in a case pertaining to a cartoon on corruption. Its use against social-political activists and critics of establishment created huge controversies in recent years.
Resurrection of such outmoded laws for political purposes in the context of freedoms guaranteed in the Constitution and growth of media necessitate re-look at our laws. We cannot jump to the conclusion of removing all irritant laws altogether. These are fit instances for re-examination for amendments consistent with political and social changes and concept of human rights. A Resolution passed by the Union government in 1954 recommended revision and modernization of laws particularly procedural codes so as to make justice “simple, speedy, effective, and substantive”.
The 5th Report of the Indian Law Commission stated in 1957 that there are no longer any legal ties between the UK and India, and therefore the entire legal code of India should be purely Indian. The 20th Law Commission set up in 2012 had a specific item among its terms of reference a review/repeal of obsolete laws. It was spelt out as identifying laws which are no longer needed or relevant and can be immediately repealed, laws which are not in harmony with the existing climate of economic liberalization and need change, and laws which otherwise require changes or amendments.
The Commission also recommended that suggestions given by expert groups in various ministries/departments and references made to it in respect of matters having a bearing on the working of more than one ministry/department should be taken into account.
Cleaning operation of statute books is long overdue in India. It is a necessary part of legislative job in order to make the operative laws clearer and more accessible. Periodical review of old laws is unavoidable in this age of rapid technological changes that impact life in all aspects. New laws, however timely and in keeping with contemporary social-economic requirements, will not produce results unless we get rid of the outdated laws on that subject. There is absolute need for systematic review of old legislations.
The task cannot be undertaken exclusively by legislators or bureaucrats or legal experts. It is an academic exercise to be undertaken as a cooperative effort among them to keep omnipresent politics away. A good deal of research may be needed though not in all cases. A start may be made with those that are totally out of tune with the present.
The Indian Telegraph Act and the Wireless Telegraph Act are of no use after the adoption of Telecom Policy in 1994. Land Ceiling Acts, Essential Commodities Act, and Companies Act prescribing many controls contradict liberalization policy. There are archaic provisions in the Hindu Marriage Act that infringe on fundamental rights. The IPC and the Indian Police Act, 1861 have to be revamped as essential preliminaries of judicial and police reforms.
The Industrial Disputes Act and the Contract Labour Act are often cited as glaring examples for immediate reexamination. Multiplicity of labour laws is not in the interest of growth of labour-intensive industries. But, the economy needs such industries to absorb huge unemployed manpower available in the country. Laws in the area of labour and industry have to be screened carefully. No wholesale deletion of laws is advisable.
While bringing our industrial laws in consonance with the demands of liberal economy, we have to protect the interests of the vast low income groups and indigent population which depend on public support to make an honest living. Hence, haste and over-enthusiasm in weeding operation may be counter-productive. The existing gap between legal and actual situation in many areas should not be widened in this operation. The task needs not a fast track approach, but a steady, continuous, and cautious pace. More important is to eliminate politics and to remain steadfastly non-partisan. INFA
Follow our WhatsApp channel