Events & Issues
New
Delhi, 1 September 2014
Obsolete Laws
CLEANSING ACT OVERDUE
By Dr S Saraswathi
(Former Director,
ICSSR, New Delhi)
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outdated laws would be repealed in the winter session of Parliament.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2001, about 100 obsolete Acts were repealed leaving many more in the statute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Outdated laws and unwanted clauses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
(Copyright,
India News and Feature Alliance)
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