Sunday, August 14, 2022

Out with the old

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In order to speed-up decision-making, the Modi government is weeding out close to 300 laws.

By Anita Katyal

What is the first image that comes to your mind when you think of a lawyer? A person in stately black robes, weighed down by tomes? Followed by a lackey with a bag of gilt-edged legal books? This “weighty” affair could well be a thing of the past if the present government has its way.

Legal books are set to get a tad lighter, as the BJP-led NDA government, in a welcome move, is doing away with archaic and irrelevant laws. This could see as many as 300 laws being removed.

It follows from a directive of Prime Minister Narendra Modi, who, in his first meeting with top bureaucrats, made it clear that laws, which delay decision-making, must be identified and removed. Modi set up a committee on August 27 to identify the obsolete laws within three months. This will certainly make the legal process swifter.

Modi’s directive has already got the government up and running. During the budget session of parliament, Law Minister Ravi Shankar Prasad introduced the Repealing and Amending Bill, 2014 in the Lok Sabha. This will see 36 antiquated acts being repealed. Of these, 32 are amendment acts, which were passed to change existing laws, while the remaining four have already outlived their utility.

The Amendment Acts, which are sought to be repealed include amendments to the Representation of the People Act, Marriage Laws, Election Laws, Divorce Laws and Anand Marriage Act and the Evidence Act. The standalone Acts which will be repealed through the Bill are the Foreign Jurisdiction Act, 1947, and Sugar Undertaking (Taking Over of Management) Act.
“The Bill is one of those periodical measures by which enactments which have ceased to be in force or have become obsolete or the retention whereof as separate Act is unnecessary are repealed or by which the formal defects detected in enactments are corrected,” said the Statement of Objects and Reasons of the Bill.

After Modi’s directive, Cabinet Secretary Ajit Seth sent out an 11-point action plan to all ministries on improving governance. Each department was asked to identify and repeal at least redundant 10 rules and acts. Prasad too has written to all the ministries and the Law Commission to identify antiquated laws, which can be removed from the statue books. Enthused by his initial effort, he has promised to continue this exercise, which has been at a standstill since 2001.

Addressing Supreme Court lawyers on Independence Day, Prasad said he had assured the prime minister that as many as 300 antiquated laws would be repealed in the winter session of parliament. “The Prime Minister directed me that new laws are to be made, but equally, outdated laws need to be scrapped. I am pursuing this very, very strongly,” stressed the law minister.

Welcome move

The legal fraternity, as expected, has welcomed this move. “It is, indeed, a good move. These old laws must go, they are no longer relevant…. these laws are like deadwood,” remarks eminent advocate PP Rao.

Senior Supreme Court lawyer Indu Malhotra says that some of the laws enacted during the British period were still alive. Many were over a hundred years old and had lost their relevance. “You cannot have laws which are so dated…laws need to be in sync with changing times,” she adds.

For instance, she explains, India’s rape laws dated back to 1860 and were amended only after public outcry over the Nirbhaya case. Similarly, Section 377 of the Indian Penal Code, criminalizing gay sex, is at least 150 years old, she says. “This law is absolutely absurd… after all, this is a consensual relationship. You can’t describe it as a crime,” Malhotra says vehemently. These laws need to be removed and replaced with a modern and progressive legislation, she adds.

Surprisingly, there are laws which can be used for the same crime, thus creating confusion and unnecessary complications in the delivery of justice. Take maintenance in divorce laws. Malhotra says a litigant can pursue a case under Section 125 of the Indian Penal Code, the Hindu Marriage Act and the Domestic Violence Act. “There is bound to be confusion when there are parallel laws…this is what happens when you bring new laws without repealing old ones,” she maintains.

Sporadic efforts

Various governments have attempted to weed out obsolete laws over the years but these efforts have, at best, been sporadic and erratic. As many as 285 old laws were first repealed in 1960 on the recommendation of the Law Commission, which had studied all the British statutes which had become irrelevant. But the pace of striking down these laws slackened subsequently.

The Congress-led UPA government also attempted to move ahead with this agenda. It even suggested that laws should have a “sunset clause” or an expiry date so that a legislation no longer valid after 20-50 years, is automatically struck off the statue book. But these efforts did not move beyond the discussion stage.

Congress spokesperson and senior lawyer Abhishek Singhvi admitted that though several attempts were made to identify obsolete laws, the real problem is implementation. “There is one detail most people ignore. Identification and repeal of old laws is easy, but in 80 per cent of the cases, this requires some minor amendment in an existing law so as to adapt it for contemporary use,” he says. Simply deleting a law is an easy and quick process, he says, but modifying it requires time, often difficult in a hectic parliament schedule.

It was the NDA government which took serious note of this issue in 1998. It even set up a special commission under the chairmanship of PC Jain to identify laws which could be removed. While collating these obsolete laws, the commission found that governments had been slow to repeal them as they feared it could revive any pending matter settled by those enactments.

New beginnings

The commission had recommended the removal of 1,382 old laws, of which only a few hundred were repealed. These include those passed during the British rule and others which were enacted to deal with special situations in the post-Partition period. These include the Exchange of Prisoners Act, 1948, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948, and Indian Independence Pakistan Courts (Pending Proceedings) Act, 1952.

But more needs to be done. For example, there is the Oudh Taluqdars Relief Act, 1870, which is still alive even though the province of Oudh and taluqdars do not exist anymore. Prasad recently admitted that some of these laws were both absurd and laughable.
Shockingly, even laws enacted during the World War are alive, despite their absurdity. Prasad said that Modi was surprised to learn the existence of a law in Gujarat which mandates that the police prepare a daily record of any subversive material which had been airdropped. This act was enacted during the World War and is a classic example of a law which needs to be deleted.

Continuing with such laws can also be troublesome, as they can be misused. Take the case of the Sarais Act, 1867, which says that “sarais” (lodges) must provide toilet facilities to the public. Prasad said a five-star hotel in Mumbai was harassed by overzealous litigants, who insisted that the hotel management allow all outsiders to use its toilets, as the hotel technically qualified as a “sarai” under the Sarai Act.

But it is also important to see that this exercise is not rushed through. In its hurry to deliver, the government must not leave any gaping loopholes which could create more problems for litigants.

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