Dead laws impose heavy burden and their costs outweigh their benefits and thus are in a need of simplification, amendments or repeals
Surabhi Gupta | May 11, 2017
The fecundity of the state legislatures has resulted in multiplicity of laws of the land, without eliminating those which have been rendered obsolete by changing times. The laws remaining on the statute books, although no longer enforced, are obsolete and have outlived their usefulness. Certain old statutes can no longer be enforced, since the conditions to which they apply have ceased to exist. Statutes which have been repealed by implication or declared unconstitutional also fall into a similar class. These not only create useless bulk in the statute books and confusion in ascertaining the law but also have a danger of sporadic enforcement. The danger is present because either the changing conditions have rendered these policies unwise, changed customs have stamped as rightful what was once forbidden, or the enforcement has made the act inoperative.
A suo-moto project on ‘Identification of Obsolete Laws’ was undertaken by the 19th Law Commission, followed by a study ‘The Legal Enactments: Simplifications and Streamlining’ by the 20th Law Commission. The study found that 253 laws, despite being recommended for repeal in Commission Reports Nos 18, 81, 96, 148, 159, still exist in the statute books. These laws are inconsistent with the modern and newer laws, with supreme court judgments, and international conventions signed and ratified by India.
Take, for instance, the Sarai Act, 1867, which asks sarai-keepers to give free drinking water to passersby and is applicable to hotels. The Act is now redundant because hotels are already registered under relevant state legislations. There have been cases where police and tourism officials have harassed hotel owners for failure to comply with the provisions of the Sarai Act.
The Births, Deaths and Marriages Registration Act, 1886 provides for the voluntary registration of births, deaths and marriages. The Act remains unused because registration of births and deaths is already provided for under the Registration of Births and Deaths Act, 1969, while marriages are registered under the Hindu Marriages Act, Special Marriages Act etc. Such redundant laws impose heavy burden and their costs outweigh their benefits and thus are in a need of simplification, amendments or repeals.
The judiciary and constitutional doctrines have certain weapons to meet such sporadic enforcement. The judiciary, through the process of ‘interpretation’, may change statutes with changing conditions, by adding new relevant meaning to the old existing forms. The doctrine of desuetude obtained in the Roman law, meaning “the condition or state into which anything falls when one ceases to sue or practice it”, is the principle encompassing situations in which a court refuses to use law even if the law has not been repealed (Monnet Ispat and Energy Ltd. v. Union of India and ors (2012) 11 SCC 1). However, it is now fairly clear that such action alone would not be sufficient in a polity organised with a legislature.
Some countries had special commissions (Missouri Commission, Massachusetts Commission) to investigate obsolete statutes. Due to limitations of time and authority, the treatment of the problem is apt to be fragmented. Some aid in removing obsolete statutes has been received from judicial councils in various countries and occasional relief is obtained through the practice of office of attorney general in recommending repeals. A committee of Pennsylvania Bar Association working in conjunction with legislative reference bureaus with attention centred on the statute law also had beneficial effect in the past. But by far the commonest way of dealing with the problem worldwide is that of codification and revision of the statutes. It is certain that the problem in many countries has been touched narrowly; either there has been no official action with regard to the outdated statutes or only a compilation of outdated laws has been made, which is nothing more than a depository of such laws.
It must also be mentioned that repealing appropriation Acts whose terms have expired will in no negative way impact the actions validly taken under these acts. It will to the contrary, serve the purpose to clear the statute books and reduce the burden. More than 700 laws will be repealed, if only those appropriation acts that are older than 10 years may be repealed. Other countries have mechanisms to systematically remove appropriation Acts that have positively served their purpose. For example, in the UK all appropriation Acts contain a repealing provision, which specifically repeals non-operational appropriation Acts. The Australian legal system follows an automatic repealing route for appropriation acts. Section 89 of Australian Legislation Act, 2001 governs that certain appropriation acts are automatically removed and this includes the ones that make appropriations on the last day of the financial year. Thus, provisions in the nature of sunset clause are read into every appropriation act by the virtue of the 2001 legislation.
India does not have any such mechanism and appropriation Acts continue to sleep on the list of the statute books. Without major amendments or introduction of new laws, a practice like that of the UK (the model from where we adopted our appropriation Act) would serve a useful purpose in the cause.
The difficulties of comprehensive revision and the fear of creating unintentional changes in the law are formidable obstacles. Yet it seems that a slight relief in the field of obsolete statutes can be hoped for by any method discussed other than just codification. A revision of laws would have to be periodic, at short intervals and be maintained as a constant and continuous process. This might need a permanent and highly trained board, which keeps necessary watch over the body of statutes of the land.
When national economies are progressively becoming globally interdependent and interconnected, ignoring to recognise the harmonious nexus between law and economy can prove costly to the nation. As the economy is liberalised and modernised, encompassing phenomenal changes brought in almost every walk of life, the need for laws to keep pace with changing times becomes a fundamental requirement, lest there should appear legal gaps, inconsistencies and contradictions causing serious impediments to the processes of growth and development.
To conclude, we need to remember and reinforce one of the sayings by Savigny, an eminent jurisprudence scholar: “Law grows with the growth and strengthens with the strength of people...”. The question is whether law in our legal system is growing and gaining strength or is still muddled and outmoded in archaic laws remaining on the statute books. There is an urgent need to ensure that laws and the legal system are responsive to the needs and challenges of the times.
Gupta is a research scholar at MDI, Gurgaon
(The article appears in the May 1-15, 2017 issue)
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