17 Nov 2014 10:37 AM GMT
It is time to end the dilemma- What is to be done with archaic laws in India?“Law is for Society” - This saying is attributed to Hammurabi of Babylon, acclaimed to be the world’s first real law-maker or law giver. “So, the law will change as and when society changes” but “changes in society cannot be determined by the law”.In the past century and a half, the socio-economic...
It is time to end the dilemma- What is to be done with archaic laws in India?
“Law is for Society” - This saying is attributed to Hammurabi of Babylon, acclaimed to be the world’s first real law-maker or law giver. “So, the law will change as and when society changes” but “changes in society cannot be determined by the law”.
In the past century and a half, the socio-economic framework of India has undergone radical changes, but the legal structure has failed to keep pace with the change and the demand of the day. India, being a country with more than one billion population and counting, the problems faced by the multitude are myriad and changing. Ever since India became independent and even before independence, many statutes have been enacted for protecting the people from the problems they face which are varied and innumerable.
Does anyone know how many statutes exist in India? Do we still need all these statutes in the present day? These are two pertinent questions which are difficult to answer. There are many statutes which still exist in our country but have not been ‘used’ for a long time. These are enactments created for the society of the day in consonance with the needs of the people at that time, but today due to a lot of technological as well as social changes, the way of life as well as thinking of people has undergone a sea change thus rendering many of these statutes redundant.
The good old laws
Around 170 statutes have been passed before 1900 when India was under the British rule. During this period many laws inter alia, the Indian Penal Code (IPC) 1860, The Indian Evidence Act 1872, The Indian Contract Act 1872 and The Land Acquisition Act 1894 have been formulated. Many other laws which were framed in the British rule are 100 years old and we are still using them. They are of little use to the present day scenario. Acts such as the Indian Telegraph Act, 1885, Indian Trust Act, 1882, and Negotiable Instruments Act, 1881, have been amended and needs to be amended further in such a way that they can be relevant in the present context. It is quite evident that these archaic laws are not serving the purpose of their enactment.
Too many laws on one subject
Over the years there have many legislations on a single subject which is also one of the reasons for the ongoing complexity and which in turn is leading to chaos. For instance, the Beedi Workers Welfare Cess Act, 1976, Beedi Workers Welfare Fund Act, 1976, Beedi and Cigar Workers (Conditions of Employment) Act, 1966 - These Acts were passed within a period of 20 years and the subject of enactment is the same. It would be less complex and convenient to have a single legislation which would cater to all the needs of the Beedi workers (in this case). Too many laws can only make things worse and complicated instead of making it simple to use them. There has been a lot of confusion for having an old and a new law on the same subject which needs to be repealed. In such a scenario, proclamation should be made through media about the same, to avoid confusion and chaos.
Time frame for laws?
There is also the opinion advanced by experts that while enacting a statute itself, it should come with a time frame or limit; which means that if a particular statute is not used or put to use for a certain period of time, then that statute would become redundant and put on a list of statutes to be repealed for consideration of the Government. The Government should be vigilant and check if a statute or Act when not put to use, or a situation for such use of the Act has not arisen for a specified number of years, then it can either be revoked or updated as per current needs and requirements.
Do we need to repeal ancient laws?
This is something that has to be seriously pondered upon. As there are many laws which are redundant but are still in force because they have not been formally repealed it is time these unnecessary laws are done away with or amended to suit the needs of the day. The ancient laws were framed based on the social, economic and political conditions prevalent then and it would be foolish to have those laws govern us today.
For instance, The Christian divorce laws which were outdated were updated after the recommendations by the community council. There is however, still room for updating The Christian Marriage Act 1872, although, it will be a daunting challenge when it comes to the questions of how to recognize, choose and prioritize and restructure such laws.
Should the statutes for repealing be taken up chronologically?
Should we first take up economic laws or communal laws or every regulation in a chronological order or, on the basis of long standing evidence of non-use? Some basic questions still loom large. The reality of regulations enacted in the context of socialization of riches and finances, mostly in the seventies, is due for reconsideration in today’s age of globalization and liberalization. The better approach lies in interlinking of various laws than to ignore and publish ad hoc supplementation of new laws.
A few statutes still exist even though they are not implemented as they are outdated. Under the Indian Serais Act, 1887, it is a punishable offence for "inn-keepers" not to offer free drinking water to passers-by. Recently, a Delhi five-star hotel was taken to court by the municipal corporation on the grounds that the hotel was not doing so. The real reason might have been something totally different. It would be a thoughtless idea to make such an Act find a place in the legal system.
The Indian Telegraph Act was passed by the Legislature in 1885 and it came into force on 1st October, 1885. The word 'Telegraph' by the definition would include a phone and FAX also. A video and Television both fall within the definition of "telegraph". A telegraph wireless receiving position is a "telegraph" as characterized in the Act. Most of the provisions in the Act are similar to that of the Telecom Regulatory Act 1994. Revoking this Act would not do any harm to the Indian society as it is far from implementation considering the modern era. Some amendments to the Telecom Regulatory Act 1994 to include certain relevant provisions from the Telegraph Act 1885 should serve the purpose.
Why do laws become obsolete?
There are some causes for laws becoming obsolete. It could be due to natural reasons— inter alia, time, change of position, over-exploitation of loopholes.
The Police Act, 1861, still needs a policeman to take off his cap or helmet before a member of royalty; Section 108 of the Customs Act, Section 40 of FERA and Part 171A of the Sea Culture Act are identical. Proposing a wide alternative to both initiate happy enforcement people and lawbreakers looking for a loophole to slip through.
As per the Industrial Arguments Act 1947, an employer can’t effect any change in working situation, salaries, compensatory allowances, work hours, rest gaps, new disciplinary directions, even raise or reduce the number of employees, except casual, without consent from the befitting authority. The confusing industrial law regime encompasses over 50 notable legislations and an identical number of state laws, which include the Workmen’s Reimbursement Act 1923, Trade Unions Act 1926, Minimum Wages Act 1936, Factories Act 1948 and Industrial Disputes Act 1947. Sections of this last Act make it tough for employers to recast sick units through modernization and technological advancement as it constrains their right to make any change in service situation while conciliation proceedings are on, therefore boosting trade unions to stall introduction of new technology.
Strides towards revoking obsolete laws:
The special commission appointed by NDA government in 1998 and headed by PC Jain, identified at least 1,382 laws for repeal, but only 415 have been repealed to date; 17 are in various stages of repeal and nine are still being examined. Till date, the Parliament has enacted more than 3,500 laws and almost 25,000 state legislations. The Law Commission of India during its search for repealing of the old laws and replacing them with new ones has found that only 40% of the Laws in India are regularly used. The members of law commission are planning to include those laws which are not properly used into a single codified system. The law commission is keen to discard the obsolete laws and replace them with new laws. The Law Commission is handicapped as their role is limited to advising the Union Government in framing new laws.
The government of India had not lent an ear to the suggestions made by the law commission for the enacting of laws which would be apt to the present day situation. The law commission prepared 170 reports for the future generations including suggesting scrapping of the obsolete laws but the Government had not bothered to look into them.
Procedure for repealing Statutes
The necessity of repealing an entire statute lies when an entire subject matter dealt by a given statute is entirely taken by a subsequent statute. Repealing and amending of Acts have no legislative effect but are intended to excise dead matter from the statute book to reduce its volume. There can be either repeal of a given provision which is inconsistent with the statute or repealing the statute itself. As per Lord Westburry, in the 148th Report by Law Commission of India, there are four objectives which can be achieved by statute law revision and repealing of defunct statutes, which are, to have renovation, order and symmetry, easy access to legislation and bringing harmony amongst different subject matter.
As per 150th Report of Law Commission of India, there are four categories of statutes. Statutes which do not need any change, acts which require to be repealed, acts which require to be amalgamated and re enacted as a single enactment and the acts which have to make changed or amended; that are still under consideration. The mode of repealing statutes can be either express or by implication. Express repeal of a statute is made by stating that the earlier statute or a particular provision is repealed. This is usually mentioned as a schedule attached to the repealing statute.
The right of repeal is inherent power of the legislature just as they have the right to make the law. It is the power of the Parliament to repeal the law. When a statute is repealed, then order, rules, notification or circular is issued in this regard to notify the expiry of the statute or some of its provisions. Under Article 252 of the Constitution of India, if any Central Act is repealed or amended by an Act of Parliamen,t then such similar act in the State may be amended or repealed by legislature of the State. Thus the repeal of the old statutes will reduce the number of redundant or defunct laws which are not suitable for the present scenario.
With the present Government making the right noises in its endeavour in repealing obsolete laws, and the intent seeming genuine, one can only hope that it results in clearing the system of statutes which are obsolete due to efflux of time or their non-relevance or over use. The panacea for the problem of confusion caused due to a plethora of legislations would be to have periodical updates to the laws by way of amendments and not enacting more legislation where there are already statutes in place. Keeping the laws current and relevant should be the mantra.
Ms. Rama R. Iyer, Legal Solutions with research and input by Legal Solutions interns, Mr. Naresh Pujari, DSNLU, Vishakhapatnam and Mr. Anupam Pillai, NLU, Odisha