Some of the old laws sitting on the statute book were repealed in 2017. There are many more that have outlived their utility
The nature and impact of legislations promulgated by the national government is an interesting topic for study as it is possible to evaluate the quality of governance and the care and concern of elected representative towards the people of India. In the 16th Lok Sabha (2014-19), 133 bills were passed, with a substantial number of them relating to the financial sector. They include the GST bill, the bankruptcy code, the insurance amendment bill, and the fugitive economic offenders bill.
In the 10-year period from 2004 to 2014, during the 14th and 15th Lok Sabhas, the Manmohan Singh government also got passed 247 and 151 legislations respectively. Some of them are very significant Acts, including the Right to Education, the Right to Information, the Right to Employment (MNREGA Act), the Land Acquisition Act and the Food Security Act. Each of them has potential to transform the lives of the people – whether they have actually done so may be a matter of debate but the intention is apparent and obvious in the contents of these legislations.
But this is in passing. Yes, history may compare and contrast the periods mentioned, though the tenures and ideologies are different. The purpose of this article is to look backwards critically and evaluate the nature of legislations that have been made in the past and are now found irrelevant. The study tells a fascinating story of the fate of legislation as the country moved from colonial days to a free India.
The legal system and administrative structure of the country today owes much to the legacy left behind by the British when they left in 1947. The new Indian government continued with the large corpus of laws in place, including the IPC and the CPC/CrPC, for all purposes. The law commission of India, in its comprehensive paper of 1957, entitled ‘British Statutes Applicable in India’1 had examined in detail the possibility of continuation or conclusion of statutes that were in force before Independence.
The commission, comprising of many worthies such as MC Setalvad (chairman), MC Changla, Nani Palkhivala and T Krishnamachari made a detailed examination of the issue. It observed that the British East India Company, originally created for trade and commerce, had, with time, acquired large areas in India and also set up new settlements, principally in the areas known as the Presidencies (because they were under the administration of a President or Governor). According to British constitutional law, a British subject could not acquire land in a foreign country and thus all such land became dominion land under the control of the Crown and thus under the legislative authority of the parliament. The commission noted that through the Charter of 1726, when the three Presidency towns – Madras, Bombay and Calcutta – were formally ‘created’, British law was specifically made applicable in such towns. Thus, the Crown quite early “assumed the right to control the administration of the possessions of the Company”.2 This charter specifically assumed that common law and statute law applicable in England prior to the Charter would also apply in these Presidency areas. Further, statutes passed after the Charter would, by implication, apply in these Presidency towns. However, since India was not strictly a colony, having a wide variety of laws and regulation across the subcontinent, the courts interpreted the applicability of British laws based on local circumstances as extant in the local areas.
Things changed after the grant of the ‘divani’ by the Mughal emperor in 1765, Shah Alam II, through which the fiscal administration of the country and the right to administer civil cases in Bengal was granted to the Company. In a short time, this was extended to the whole country, through the establishment of civil courts, though, in places outside the Presidency towns, the authority to do so was derived from the Mughal emperor, in whose name the Company was exercising power. The Company authorities wisely decided not to interfere in the personal matters of the people, such as marriage, succession and religion: but in all other matters, all people irrespective of religion or any other circumstances were subject to the general law, which included British statutes, expressly or by intention, made applicable in India. The question of the applicability of British laws not expressly or by intention made applicable still remained and was never fully addressed, though individual judgments were passed in this regard.
This situation did not change even after sovereignty and control were assumed from the Company by the Crown in 1858. The Government of India Act 1919 (which had enabled the participation of Indian citizens in certain limited aspects of governance) was repealed and replaced by the Government of India Act 1935, which formally declared the country to be a federation comprising of British India and the princely states, and expanded the role of Indians in the governance of the country. It also specifically stipulated in Section 292 that British laws intended or enacted for India would continue to apply.
Finally, in 1947, India become a dominion through the the Indian Independence Act which conferred supreme powers to the new Indian government to effect or repeal any law in place since before Independence. It was also made abundantly clear that in future no law of the British parliament would be applicable in India. Article 372 of the constitution expressly stated that “all the law in force in the territory of India before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.”
The commission wryly notes in 1957, that “notwithstanding this plenary power” to alter, repeal or amend laws, “the Indian legislature has not so far substantially used it to replace the British statutes by enacting laws of its own.”3 That anomalies would arise is obvious and the apex court itself has commented4 on the urgent need to examine the old British laws for their possible repeal or amendment.
The law commission report then goes on to analyse the nature of the statutes in force. It makes reference to a publication entitled “Collection of Statutes relating to India” with “possible application to any part of India”5 and the commission assumes that the same is the final list of such laws. It goes on to arrange the list of these laws, chronologically and alphabetically in Table A and Table B of Appendix I of the report. There are well over 400 such statutes in this list. In Appendix II, an analysis of these statutes has been made to examine whether these laws are still relevant in the country or have become altogether obsolete and inapplicable with the passage of time. This is the bulkiest part of the report and covers more than about 50 pages: an attempt has been made to analyse all the laws mentioned in Annexure I and to provide for some recommendation as regards the possible continuance or otherwise of the statutes.
For such statutes, the commission makes the following recommendations:
That most of the statutes annexed with the report have become obsolete and should be repealed.
The statutes fall into two categories:
A: Those statutes which are obviously obsolete because the historical reasons that necessitated their enactment no longer exist. (It is interesting to note that the first on the list is the Magna Carta of AD 1215!)
B: Statutes which confer certain rights on Indian citizens as an erstwhile dependency of the United Kingdom but do not impose any obligations. It is interesting to note that after India became free, the British parliament enacted a law, The India (Consequential Provisions) Act 1949, which while not extending to India in view of the Indian Independence Act 1947, is still binding on British courts and is applicable and “shall have the same operation in relation to India and to persons and things in any way belonging to or connected to India as it would have had if India had not become a Republic.”6 It extends to the UK and its colonies.
In effect what this means is that even if the Indian parliament were to repeal such laws, if any of them confers any benefits on an Indian citizen by virtue of the fact that the British law provides it, such benefit will continue to be granted in a court in the UK or in any of its colonies. “In short, India and Indian citizens would still be entitled to take advantage of the English statute in proceedings before a British court.”7
C: Finally, for the the remaining statutes, the law commission recommended that new legislation will be necessary. They fall into two categories:
(i) Those subjects for which there is no legislation at present; and (ii) those subjects for which there is some Indian enactment present but which does not cover the whole field. (e.g.: extradition, merchant shipping, etc). The suggestions of the commission have been placed in Appendix III).
Very significantly, there is a note of dissent in the report from one of the members of the Commission, Dr NC Sen Gupta. He had certain objections to the manner in which the commission was not making any recommendations with respect to the Acts mentioned in Appendix III. He makes certain specific comments pertaining to the Indian Anglican Church and expresses the view that the British parliament must be fully divested of any authority with regarding the institutions of Indian churches, especially since the Indian constitution does not contemplate interference by the government with regard to any institutions of any religion. He also had certain comments to make regarding the Extradition Acts and the Foreign Tribunal Evidence Act of 1856.
The task of repealing old laws still continues. At the union government level, the law commission prepared four reports in 2014 (248th, 249th, 250th, 251st), identifying old statutes that could be repealed. Subsequently, a committee headed by R Ramanujam was formed to identify central Acts which are not relevant or no longer needed or require repeal/re-enactment. As per the Ramanujam committee, 2,781 central Acts were in existence as on October 15, 2014. Out of these, it recommended the repeal of 1,741 central Acts. Of these, 340 were central Acts on state subjects that had to be repealed by the respective state legislatures. In December 2017, the Lok Sabha passed two bills to repeal 245 old statutes.
It would be interesting to see if the report submitted by the law commission in 1957 has been followed up on and if the recent passage of two repealing bills in 2017 has actually considered and implemented some of the recommendations it had made sixty years ago. The concordance between the 1957 report and later reports would be an interesting exercise for young researchers to attempt.
Dr Mathew, IAS (retd), is a former chief secretary, Rajasthan, and Visiting Professor, Azim Premji University.
(This article appears in the May 15, 2019 edition)