Intro: It is time for India to provide better governance by weeding out laws that have outlived their utilities. ?
History remembers legends for their courage to take decisions despite the odds to change the course of destinies of their people. Prime Minister Narendra Modi is certainly utilising the opportunity that history has provided him.
The spotlight, and deservingly so, has been on ‘Swachh Bharat Abhiyan’ he launched on Gandhi Jayanti. The intelligentsia in general and media in particular, however, seem not to have given enough attention to another cleaning campaign that is Narendra Modi’s pet project. This move is intended to make every Indian’s life easier and improve justice delivery system in the country. Call them small steps if you want but they will have a long teHistory remembers legends for their courage to take decisions despite the odds to change the course of destinies of their people. Prime Minister Narendra Modi is certainly utilising the opportunity that history has provided him.rm impact on how our institutions will grow for this one is initiated to clean the Indian Statute Book of obsolete laws. And the initiatives are in line with the Prime Minister’s mission to rid India of “maze of laws” and to provide better governance to Indian citizens by weeding out laws that have outlived their utilities.
A closer look at some of these laws generates bewilderment as why nobody ever thought of doing away with them. For where some are outdated, some are clearly ridiculous.
Going by recent reports, there are around 3000 laws on the Statute Book that have become obsolete but still in operation (technically) as these have never been repealed.
The Law commission in as many as five of its previous reports, starting from 1956 till 1984, recommended repeal of such obsolete laws but nothing was done. A commission headed by PC Jain, appointed during Shri Atal Bihari Vajpayeeji’s time also recommended such repeal but was never acted upon in full.
Recently, when the present Law Commission was tasked to undertake the exercise of recommending laws for repeal, it was found that 253 laws which were recommended to be repealed by previous law commissions are still in statue book. Further, texts of various laws enacted were not found to be available even with the law Ministry, but these are still applicable. Another area of concern was overlapping of laws enacted during the British Rule with new laws that have been enacted subsequently. Strange still was the finding that there are about 700 laws related to appropriation, which is used by the Government. To withdraw money from the Consolidated Fund of India that becomes infructuous after every such approval, are still valid, due to absence of any automatic repeal provisions in such Appropriation laws, unlike in UK and Australia, and still are part of the statute book.
The problem is we have too many laws, that have lost their relevance and if not repealed would be two centuries old in the coming twenty years or so but are still on the statute book, simply because we do not have a comprehensive policy of taking stock. Though such laws may not have been used for a long time, as the law commission found in many such cases, the possibility of these being misused is always there. Certain laws, read in today’s context seem to be not only outdated but funny. Take for example the Treasure Troves Act,1878 that made it mandatory for any one finding anything worth Rs.10 “hidden below the soil” to hand it over to the Government failing which “share of such treasure … shall vest in Her Majesty”. It’s an altogether different matter that India became independent in 1947 and a Republic in 1950. And Rs 10, for God’s sake!
Another such law is The Sarais Act, 1867 – Under this Act; a “sarai” has to offer passers-by free drinks of water. This law has been misused to harass hotel owners and in one instance a Delhi five-star hotel was harassed under the clause, though not prosecuted, for not doing so. It is important to note that we have a Companies Act that makes CSR compliance mandatory. These activities can be obligated under CSR activities.
The Indian Post Office Act, 1898 is another one in this category that provides that only the federal government has the “exclusive privilege of conveying by post, from one place to another”, most letters. The law says only the government is responsible for sending most letters. In order to circumvent this law the courier Company operating in India do not send letters but documents. This Act is out of tune with the modern time when courier service has become the preferred mode of sending documents etc. even Court notices can also be sent through them.
Another law in this list is the Indian Law Reporter Acts, 1875 which provides that in Courts of law only citations published in the Indian Law Reporter Series can be used and considered valid. However, in today’s time there are various private publications which are relied by the Courts including the Supreme Court and readily available. Also you never know when a “public spirited citizen” would beseech a High Court or the Supreme Court to make it mandatory for lawyers to rely only on Indian Law Reports!
Some examples of overlapping laws still in existence is the Companies (Donation to National Funds) Act, 1951 that empowers any company to make donations to various national Memorial Funds or any other fund established for a charitable purpose and approved by the central government by reason of its national importance. However, in view of the Companies Act 2013, such contributions are to be mandatorily made as part of the Corporate Social Responsibility (CSR) activities and make the 1951 Act redundant.
Similarly, the Elephant Preservation Act of 1879 that makes it an offence to kill Elephants is subsumed by the Wildlife Act, 1972; it has lost its relevance but is yet to be repealed.
The Shore Nuisances (Bombay and Kolaba) Act, 1853 is one of the earliest laws relating to water pollution and was meant to regulate dumping of industrial waste into the Sea empowering the Collector to take steps to remove such debris etc. to give unhindered passage to ships. This law has lost its relevance in view of the under various rules framed under the Environment (Protection) Act, 1986 and the Water (Prevention and Control of Pollution) Act, 1974 and has not been used for a long time.
Another bizarre law that has managed to still finds place in our statute book is the Disputed Elections (Prime Minister & Speaker) Act 1977 enacted after Indira Gandhi’s election was nullified by the Allahabad High Court decision through a Constitution amendment by inserting Article 329 A. Essentially, what it says is that an MP who subsequently goes on to become the Prime Minister or Speaker of the LS-a challenge to his/her elections can only be brought before the Supreme Court and not before any High Court. Strange though it may seem, this was done just to safeguard a single individual, who later imposed emergency and heralded a dark era of repression in India. The reader would be baffled to note that even though this constitutional provision was done away with by way of a subsequent amendment, after the Janata Party came to power, the legislation was never done away with. A glaring omission, which the report of the Commission seeks to set right.
However, there are certain laws which would require the consent of various States in view of provisions made in Article 372A of the Constitution which makes it obligatory that any pre-independence law having implication on State can be repealed only with their consent and approval. This seems to be an area of concern as the approval of concerned State legislature would be required for the purposes of their repeal. Nonetheless the Government has already introduced the Repealing and Amending Bill, 2014 and shown its resolve to repeal obsolete law.
The Law Commission has since submitted 4 reports (248th to 251st) listing out laws that need to be repealed numbering close to 300. It is anticipated that in the Winter Session of Parliament another Bill will be introduced to repeal these laws. Going by the past track record, during the previous NDA regime the PC Jain Committee had suggested repeal of as many as 1300 obsolete laws out of which only 415 were repealed. It is hoped that this time around the Modi Government will go one step if not two in ridding the Statute book of all such laws.
Sandeep Mahapatra ?(The writer is a senior advocate with Supreme Court)
?
?
Comments