-by NL Rajah Nangavaram
On 27th August 2014, the Prime Minister with the objective of providing greater impetus to the reforms agenda of his government set up a committee to identify obsolete laws. Earlier the P.C. Jain committee on administrative reforms established in 1998, by then Prime Minister A.B. Vajpayee identified 1382 Acts which qualified for being repealed. However, of these, only 415 had been repealed.
In the meantime, the Law Commission of India, headed by Justice A.P. Shah also charged ahead full steam with identifying obsolete laws. It has undertaken a massive study titled, “The Legal Enactments: Simplification and Streamlining- LESS”. In the first installment of its report, (248th report) released in September 2014, 72 laws were identified as having become obsolete and were recommended for immediate repeal. In the second installment of the report released in Oct. 2014 (249th report), a further 113 laws were recommended for repeal. Through the 250th report released in Oct 2014, 73 laws were identified and through the 251st report another 30 laws have been added to the list of laws to be repealed. In addition to Acts, long-standing ordinances have also been recommended for repeal. For example, 11 permanent ordinances promulgated during World War II have been found to be leading a vegetable existence and the Law Commission has recommended that they may be taken off the ventilator.
Of the Acts recommended for repeal by the Law Commission, 62 enactments were in the State list and therefore could only be repealed by the State legislatures. Yet another committee appointed by the government i.e., the Ramanujam committee recommended repeal of 1741 enactments of which again 83 were in the State list and therefore had to be repealed by State legislatures. Another 144 State Appropriation Acts were also recommended for repeal by the respective state governments.
The Law Secretary of the Union Government wrote to the various State governments by a letter dated 5th April 2015 and requested them to repeal the laws that were within the jurisdiction of the respective State Governments. A list of the laws was also attached. One wonders how much of this exercise has been done by the respective State Governments.
A perusal of the list of laws to be repealed would leave any sane mind aghast and stunned. That these laws have been allowed to exist so long is a sad comment on the way we run our legal system.
We still have statutes like the Bengal Indigo Contracts Act, 1836, which allowed the British to control indigo farming in the erstwhile provinces. Further, the text of certain Acts are not traceable and there is no evidence to indicate that they have been applied in recent times. However, even these laws continued to exist in the list of statutes currently in vogue. The Bengal Land Revenue Sales Act 1841, Revenue Bombay Act 1842, Sales of Land for Revenue Arrears Act, 1845, Police (Agra) Act 1854, are some noteworthy examples of such laws. It is only recently pursuant to the recommendations of the Law Commission and the various committees that these laws came to be repealed.
Some dead-letter laws that continue to exist in the statute books have the potential for causing serious embarrassment. Take for example the Indian Law Reports Act of 1875. This law mandates that no court of law in India shall hear the report of any case other than one cited in a law report published under the authority of the Government. The 96th Law Commission of India Report notes that it is well known that notwithstanding the Act, unofficial law reports continue to be cited before the High Courts and Supreme Courts. The embarrassing situation that courts are put to is, every time courts recognize a citation that is not published in law reports published under the authority of the government, they are committing a violation of the law. Such situations obviously call for urgent remedial action by way of repeal of the offending statute.
One limitation to the exercise of repeal of obsolete laws is that the Parliament cannot cause these laws to perish at the wave of a wand. If a law is to be repealed, the legislature competent to repeal the law must also be identified in accordance with the provisions of Article 372(1) of the Constitution of India. Pre-constitutional laws, even if they had been passed by the Central Legislature can now be repealed by Parliament only if the subject matter of the law falls within list I or III of the Seventh Schedule to the Constitution. In respect of other laws, the participation of not only the Central Government but also the State Governments in this exercise is essential. In the larger interests of instituting a healthy legal regime, one hopes that the respective State Governments will realise the importance of the endeavour and act appropriately.
Eliminating the obsolete is no doubt laudable. However, this elimination by itself will only help the system to reach the halfway mark in the task to establish a healthy legal regime. The other half of the challenge is to activate dormant laws. These fall into three main categories (which are by no means exhaustive). The first is laws passed by the Parliament and State Assemblies which are yet to become functional because they have not been notified. Within this category are also policies, rules and regulations which have not yet been notified even though the acts themselves may have been brought into force.
In the second category are a whole lot of recommendations of the Law Commission that remain dormant. In many cases, the issue is so important that the Law Commission has just not recommended the law but has even gone ahead and drafted the legislation. Sadly, these have not even been taken up for consideration. For instance, the 15th Law Commission headed by Justice B.P. Jeevan Reddy submitted along with its 166th report dated 4th Feb. 1999 a well-drafted legislation titled “The corrupt public servants (forfeiture of property) Bill”. In his accompanying letter to the Government Justice Reddy points out, “In view of the fact that corruption in public life has struck deep roots in our society including its administrative apparatus, which is causing immense loss to the State, to the nation and the public interest, there is a crying necessity for a law providing for forfeiture of properties acquired illegally by holders of “Public Office”. However, this well-drafted legislation has not been taken up for consideration by any Government that has been in power since 1999.
The third category, are private members bill. The purpose in nominating experts in various fields to the Rajya Sabha is that their expertise will be brought to bear on the law-making process and deliberations within the house. This process is defeated when legislations suggested by them do not receive the attention they deserve. Notable among them is the Judicial Statistic Bill sought to be introduced by Fali S. Nariman as a Rajya Sabha member. The Bill proposed the creation of a National Authority for Judicial Statistics. Legal reform in the country is hamstrung by the absence of reliable data and this very important piece of suggested legislation sought to remedy the malaise. One other very significant private member Bill that also was “born to blush unseen” was the “Women Farmers Entitlement Bill 2011” mooted by eminent scientist Dr M.S. Swaminathan when he was a member of the Rajya Sabha, which has also met with the same fate as Nariman’s Bill. The only reception these Bills have received so far is undeserved indifference.
While removing the deadwood is welcome, Narendra Modi would be remembered for posterity if he were to set up a committee to review all dormant Acts and Bills as also recommendations of the Law Commission and take them up for immediate consideration and activation. Sadly no erstwhile prime minister or government has undertaken this exercise.
If he does this, he would well qualify for sharing the boast of Augustus Caesar, “when he shall have it to say, that he found law dear and left it cheap – found it a sealed book left it a living letter”.
The views are personal.
Image Courtsey: The Statesman
ABOUT THE AUTHOR
Senior Advocate NL Rajah Nangavaram
Enrolled in 1986 as advocate and designated as a Senior Advocate of the Madras High Court in 2016. He is the author of Consumer Protection in India (Lexis Nexis).
A trustee of the Palkhivala Foundation and the Founding director of Nani Palkhivala Arbitration Centre. A member of Heritage Committee of MHC and also the Arbitration Committee of MHC. A Member of Committee of Law Commission to suggest changes to Arbitration and Conciliation Act as also Consultee to Law Commission on Commercial Courts Act. Founder Director of Justact.