Obsolete Laws: Cleansing the Statute Books
By Indialegallive 28-Jul-2019
The Committee found that 115 years before the Constitution, 2,911 central Acts and thereafter for 66 years, 3,701 central Acts were enacted.
It felt that the issue of governance by central Acts vis-à-vis exercise of executive power needed to be revisited in the light of provisions of the Constitution and today’s socio-economic context which emphasises self-regulation and globalisation. The Committee observed that the executive function is not confined to execution of laws; therefore, it is erroneous to suggest that in order to enable the executive to function in respect of any subject, there must be law already in existence.
Specific legislation may, of course, be necessary to incur an expenditure of public funds or to encroach upon private rights, which cannot, under the Constitution, be done without legislation. But, apart from this, it cannot be held that in order to undertake any function, such as entering into any trade or business, the executive must obtain prior legislative sanction, the Committee added.
In the absence of statutory provisions or statutory rules or where such rules are silent, the government is competent to make administrative rules. Such non-statutory rules shall to that extent be binding on the parties, it suggested.
On July 17, the cabinet approved a bill to scrap 58 laws, which were found to be archaic and obsolete. The list of these laws was not immediately available, but sources in the government reportedly said that most were Acts which were enacted to amend principal or main laws. According to a government functionary, once the principal Act was amended, these amendment laws lost relevance. Their presence in the statute books as independent laws was unnecessary and they were only clogging the system, the official was quoted as saying.
An amending central Act (making amendments to the principal Act), according to the Ramanujam Committee, becomes redundant in pursuance of Section 6A of the General Clauses Act, 1897, when all the provisions of such amending Acts have come into force. The committee identified 777 central Acts for repeal.
It also requested the Department of Legal Affairs (DLA) to examine whether the provisions of all the Constitution (Amendment) Acts (except those which are substantive in nature) could be repealed in the light of Section 6A of the General Clauses Act, 1897, read with Article 367 of the Constitution. It said that if so, it should indicate the Constitution (Amendment) Acts which can be repealed in whole or in part, specifying the sections for partial repeal. It is not known whether the DLA responded to this request so far.
The DLA’s examination of such Acts has become crucial in the wake of reports that the repeal of one such Amendment Act in 2015 helped Sikkim Chief Minister Prem Singh Tamang to avoid disqualification on the ground of conviction in a criminal case. Tamang, the president of the Sikkim Krantikari Morcha, an ally of the BJP government at the centre, took oath as chief minister on May 27, 2019, following the results of elections to the assembly held along with the recent Lok Sabha polls. Tamang was found guilty in a corruption case in 2016 and had served a prison sentence from August 10, 2017, till August 10, 2018, following the Sikkim High Court’s confirmation of the trial court’s verdict finding him guilty.
Section 8(1)(m) of The Representation of the People Act (RPA), 1951, seeks to disqualify a person convicted of an offence punishable under the Prevention of Corruption Act, depending on the sentence. If the sentence is only a fine, the convict is disqualified from contesting elections for six years from the date of conviction. If the sentence is imprisonment, the convict stands disqualified from the date of conviction and until six years after release. This provision was inserted through an amendment in 2003 in the RPA by Act No 9 of 2003. The Repealing and Amending Act, 2015 (Act No 17 of 2015) repealed the whole of Act No 9, including this crucial amendment of the RPA. The 2003 amendment sought to disqualify not only those found guilty under the PCA, but under the Commission of Sati (Prevention) Act, 1987 and the Prevention of Terrorism Act, 2002 as well. The DLA, therefore, has to clarify whether the repeal of the entire 2003 Amendment Act would also wipe out the disqualification clauses inserted through that Act in the RPA. If it didn’t wipe out the disqualification clause in the RPA (Section 8(1)(m)), Tamang could not have been sworn in as he stands disqualified from contesting elections for six years after his release, that is, till August 10, 2024.
As Tamang’s supporters rely on the repeal of the 2003 Amendment Act in 2015 to contest his disqualification under Section 8(1)(m) of the RPA, this ambiguity in the law must be clarified at the earliest by the centre. Sikkim Governor Ganga Prasad, according to reports, obtained legal opinion before swearing-in Tamang. His appointment as CM is now under challenge before the Supreme Court, while he has to get elected to the assembly within six months of being appointed.
In similar circumstances in 2001, the then Tamil Nadu chief minister, J Jayalalithaa’s appointment was quashed by the Supreme Court because she stood disqualified at the time of her appointment by the governor in view of her conviction in a corruption case. The Supreme Court had held that she was not eligible for the benefit under Article 164(4) of the Constitution which enables a non-member of the assembly to become a minister and continue in office for six months. Before that ends, she must get elected to the assembly. Tamang did not contest the recent assembly elections, whereas Jayalalithaa’s nomination was rejected by the returning officer in view of her conviction. Both used Article 164(4) to become chief ministers because they were chosen as leaders of the parties which had won elections. Both were disqualified under different provisions of the RPA. In the absence of the centre’s clarification on Section 8(1)(m), the Supreme Court’s hearing of Tamang’s case and its decision on the effect of repeal of an amending Act will hopefully end the ambiguity surrounding the law.
The term “scavenging” or “cleansing” of the statute books, however, requires a closer examination because governments in power should not adopt this seemingly desirable method to repeal good laws which were enacted to ensure political accountability.
Thus, the repeal of the Hackney Carriage Act, 1879 (legislated for the regulation and control of hackney carriages), Dramatic Performance Act, 1876 (when theatre was used as a medium of protest against British rule) and the Ganges Tolls Act, 1867 (which provided for collecting toll “not exceeding 12 annas” on certain boats and steamers plying on the Ganga to improve navigation of the river between Allahabad and Dinapore) may not be controversial.
One estimate is that between 1950 and 2001, over a hundred Acts were repealed. In September 2014, the Law Commission found that a large number of Appropriation Acts passed earlier continued despite losing their relevance over the years.
The Commission attributed this to the absence of sunset clauses in those Acts when they were enacted. A “sunset” clause enables an Act to repeal itself automatically after the expiry of a certain period since its enactment unless renewed by a fresh Act.
One reason for the continuance of a large number of enactments in the statute book is that no systematic and regular attempt had been made to examine these Acts in-depth for the purpose of repeal. The 20th Law Commission, in the 248th Report, stated that if the subject matter of a pre-Constitutional law falls in the State List, the state government is the competent legislature to repeal that Act.
In 1998, the PC Jain Commission had recommended 114 central Acts relating to state subjects for repeal by state governments. The Legislative Department of the central government intimated that 108 such Acts had yet to be repealed.
The Law Commission, in its 248th, 249th and 250th Reports, had recommended the repeal of 227 Acts. Some of these were also recommended for repeal by the PC Jain Commission. The Ramanujam Committee, therefore, suggested obtaining a legal opinion from the DLA or the Law Officer as to whether Parliament can by a resolution passed by the concerned state legislature, consent of the state government or in any other way repeal them.
The Ramanujam Committee had recommended keeping all provisions which were repetitive in nature and including them in single umbrella legislation by either bringing amendments in the General Clauses Act, 1897 or separate legislation which would be applicable to all existing legislation and those enacted in future. (The object of the General Clauses Act was to shorten the language of future statutory enactments and as far as possible, to provide for uniformity of expression where there was the identity of the subject matter.)
The Ramanujam Committee observed that Tribunal/Appellate Tribunals/Boards were established under various enactments to adjudicate the matter specified under such central Acts.
The Committee identified 27 central Acts under which various Tribunals, etc., were established. The Committee recommended revisiting of the objects and reasons for establishing Tribunals/Appellate Tribunals/Boards and exploring alternatives for constituting additional specialised benches of High Courts for the subjects or the matters adjudicated by them.
The Committee also identified 20 Acts or provisions which had not come into force for several years since their enactment, raising the question of whether it makes sense to repeal them. The Committee suggested a consolidation of two or more central Acts and identified 150 such Acts for re-enactment into a single central Act.
Indeed, there are many proposals for the repeal of obsolete laws. Many colonial laws are also out of tune with the spirit of contemporary times.
Section 377 of the Indian Penal Code, for instance, was one such law which was read down by the Supreme Court but is yet to be repealed or replaced by a better law to protect transgender persons.
Section 124A of the IPC, making sedition an offence, is another law which has been repeatedly misused by governments to protect themselves from criticism for their omissions and commissions. The government, therefore, should keep an open mind, uninfluenced by political prejudices exploited for electoral ends while reviewing laws which have become obsolete and redundant.
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