In his book In the Dock: Absurdities of Indian Law, published in 2000, Dr Bibek Debroy said, there are an estimated 25,000 statutes at the state level and 2,500-3,000 at the Central level that are old, dysfunctional and redundant and deserve to be junked. Speaking at a Moneylife Foundation event just after the National Democratic Alliance (NDA) government was sworn in, he said, “We do not readily know the number of statutes in the country. There is no complete state list, and we can only guess how many state-level statutes there are for all states. Then there is the problem of counting. I mean, whether to count the amended statute separately or not.”
The oldest statutes still surviving, according to Dr Debroy, are the Bengal Districts Act and Bengal Indigo Contracts Act of 1836 and Bengal Districts Act, Act 21 of 1836, which still have to be scrapped by the state government; 140 other statutes go back to the 19th century and another 200 pre-date Independence.
These have survived, despite regular efforts to weed out redundant laws in the first decade after India became a republic. After the 1960s, there have been several commissions and individual efforts to identify and repeal redundant statutes through ‘repealing acts’. The first such Act to scrap several British statutes was in 1961; it was followed by sporadic action over the years. In 2001, under the previous NDA government, a few hundred laws were scrapped and the civil procedure code was also overhauled.
The effort has gathered great momentum under prime minister Narendra Modi. Action began almost immediately after he was sworn in. On 5 June 2014, the then cabinet secretary Ajit Seth, in a note to all secretaries and heads of government institutions and public sector banks, had issued a list of instructions outlining the government’s priorities. The second instruction on that list was that each department should “identify and repeal at least 10 rules and processes, and even archaic Acts that are redundant and would not lead to any loss of efficiency.”
The government has systematically got cracking on the easier task of scrapping outdated laws. In his column in the Indian Express, Dr Debroy said, the R Ramanujam committee set up by the prime minister in 2014 had submitted “a mammoth four-volume report,” which identified 1,741 Central Acts for repeal. Since then, the number of laws identified for repeal has increased to 1,877.
In the past two years, several repealing and amendment legislations (in 2014, 2015 and 2016) have led to the scrapping of 1,178 redundant statutes, mainly Appropriations Acts. The latest of these, The Appropriation Acts (Repeal) Act, No 22 and No 23 of 2016 received presidential assent on 6 May 2016. Appropriation Acts are meant for the limited purpose of authorising specific expenditures. India does not have the doctrine of desuetude (whereby certain statutes become unenforceable because of disuse), or what the Americans call a ‘sunset clause’, which allows a statute to die after it has served its purpose. Indian laws remain technically alive until specifically repealed.
Apart from hundreds of Appropriation Acts of the Centre, various states and the railways, a few statutes repealed in the latest round include such relics as the Excise (Spirits) Act, 1863,
The Foreign Recruiting Act, 1874 ,The Indian Law Reports Act, 1875, The Elephants Preservation Act, 1879 and The Lepers Act, 1898. And, yet, this is the easy part; the real work still has to begin.
According to Dr Debroy, fixing and reforming our laws will allow us to “achieve 1.5% more GDP every year.” In a paper titled “Judicial reforms—law and contract enforcement”, he had said, “Most legal reforms since 1991 have been triggered by economic reforms, domestic and external.” There is no such drive or leadership in cleaning up the legal system, despite all the cynicism about it, he was concluded in his paper.
That is no longer the case under Modi sarkar
. And, yet, the work done on repealing obsolete laws has received little public attention, because none of this is really relevant to ordinary Indians. And what is relevant has either not changed or the government has sent out mixed signals. Today, most of us are seriously worried about justice being out of reach of the average Indian because of the slow pace, mind-numbing processes and prohibitive costs. The need of the hour is an effort to overhaul the legal system and to ensure that obsolete rules and scrapped right down to state and municipal levels. So far, only Rajasthan has led the effort by scrapping 274 obsolete laws in May 2016. We need to see the effort gather momentum in all the NDA-ruled states.
But it is even more important to see action at the municipal level. Consider just one example. The Municipal Corporation of Greater Mumbai (MCGM), which is the richest and largest municipality in Asia, continues to enforce a maze of obsolete laws, rules or regulations as a tool of harassment and rent-seeking from business establishments, especially smaller businesses. From white-wash registers (a relic of the British efforts to enforce hygiene), to mandatory cross-ventilation by disallowing office partitions that go up to the ceiling (again, carried forward from the days before air-conditioning), to a licence for shops with a threshold opening to a main street—there are innumerable rules that are cited only for rent-seeking. BMC employees who come on their inspection (collection) rounds, when asked for a list of the rules that a shop or business has to follow, will laugh and tell you that you will not be able to follow them.
How long does it take a government, which has ‘Digital India’ as one of its flagship initiatives, to put every rule online? Once they are online, the whole world will be able to see how ridiculous the rules are. Our effort to seek permission for an outdoor event in Mumbai at a well-known public space that is routinely rented out turned into a nightmare with a series of permissions that were necessary and a bribe demanded for each of them. There is no public outrage, because the dirty work of obtaining permissions is done by event-managers and is included in the ‘cost of doing business’.
While legal reform at the state and municipal level has yet to gather steam, what is more worrying is the government’s stand on two important issues. Chaitanya Kalbag wrote in The Economic Times recently: “Twice in the past two and a half years, the Supreme Court has ruled with a 19th-century mindset on vital 21st-century issues affecting personal freedom using criminal and penal codification that was enacted by India’s British rulers.” He refers to a 2013 judgement which upheld Section 377 of the Indian Penal Code criminalising homosexuality and the May 2015 judgement upholding the constitutional validity of Sections 499 and 500 relating to criminal defamation. As Mr Kalbag points out, both are relics of a code drafted in 1837 by Thomas Macaulay.
But what is even more important is that the government argued forcefully for their retention, when this should have been part of Modi sarkar’s much touted efforts at modernising and overhauling the legal system. So it is one cheer to the government for the good work in scrapping thousands of obsolete statutes. But real reform that will help the people would mean clear and consistent effort to move towards a legal framework that is in line with 21st century needs and mindsets.
is the managing editor of Moneylife. She was awarded the Padma Shri in 2006 for her outstanding contribution to journalism. She can be reached at [email protected]