The Constitution empowers Parliament to repeal obsolete laws but a law is repealed when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned. Prof. Ishrat Husain examines whether these reasons really exist.
“Law grows with the growth and strengthens with the strength of people.”– Puchta
Today’s politics is tomorrow’s history. Therefore, it is not viable to disconnect the present from the past. Though our freedom fighters struggled and got India free from the exploitative rule in1947,the period before and after 1947 cannot be mechanically separated. It is near to impossible to have complete disassociation from the British legacy.
The British stayed in the country long enough to control and shape the legal system that is followed today. While some of the laws have assisted the lawmakers of the country to justifiably draft the law of the land, some of the archaic laws which are only aimed at exploitation need doing away with. If things are useless and not working properly, they must be discarded.But if they are useful, we should not abandon them just for legacy.
There are so many age-old laws relating to civil and criminal administration of justice like Indian Penal Code, 1860; the Indian Contract Act, 1872; the Indian Trusts Act, 1882; the Indian Evidence Act, 1872; Indian Easement Act, 1882; the Transfer of Property Act, 1882 and many others. They shouldnot be repealed only for reasons that they were enacted by the British. Suitability to our present need should be the only criterion to retain or repeal them.
In many countries like the USA, it is much harder to repeal a law than to pass it in the first place. But in India the Legislature has the power to make laws. However, a law is reversed when Parliament thinks there is no need for the law to exist. Many Acts do not have relevance in the present time and they become hindrance to normal course of action. There can be laws which are not in tune with international treaties and conventions signed by India.
The Prime Minister, in August 2014, approved the constitution of a committee to carry out a review to identify obsolete laws and to examine all Acts recommended to be repealed by the Committee on Review of Administrative Laws. Importantly, these laws are to be tested on the lines of their relevanceand effectivenessin present time. They have become just old is not the justification to repeal them.
Laws can be broadlydivided in two categories as laws relating to governance of State and other general laws. The entire process of lawmaking and the way in which laws are administered has huge bearing on governance because such huge numbers of laws are unnecessarilyon statute books, somehow it will be invoked through litigation and governance will be hampered.
This will also have a bearing on economy and business side. It is about the focus on business laws. There are many laws which can be consolidated and re-enacted as one law. This will help administration of business more efficiently. Laws relating to historic educational institutions may be put in the second category like Delhi University Act, 1922; The Madras University Act, 1923; Banaras Hindu University Act, 1916; The Aligarh Muslim University Act, 1920, etc. that have no direct connection with governance of the State.
What is the Government actually intended to repeal these Acts? If uniformity in the composition of statutory bodies and the appointment of VCs, etc. are intended, same can be done just by amending the Statutes. Let the Executive Council and other statutory bodies of historic universities initiate statutory amendments. Alternatively, the Government should publicly announce that the Acts of these historical universities would be repealed and re-enacted with same provisions just to change year of the Acts.
Justice K.K. Mathew, in the 96th Law Commission Report, proposed six different classes of enactments considered to have been ceased to be in force, laying down that where the state of things contemplated by the enactment has ceased to exist, or the enactment is of such a nature as to be no longer capable of being put in force, regard being had to the alteration of political or social circumstances. The 248th Interim Law Commission Report on Obsolete Laws recommended to repeal 72 statutes like Sheriffs’ Fees Act, 1852, Sonthal Parganas Act, 1855, Howrah Offences Act, 1857, Calcutta Pilots Act, 1859, Sarais Act, 1867, Oudh Estates Act, 1869, Dehra Dun Act, 1871, Fort William Act, 1881, etc. These laws appear to be obsolete but living laws should not be amalgamated with these laws as they are just old in terms of years.
The doctrine of desuetude may be applied for above said Acts but not to the Acts governing the present educational institutions. Indian laws have always been influenced by its customs and practices. India embraces its ancient traditions; however, it would not be right to say that old is always gold in the present regime.
With respect to the change of legal regime between the British Raj and the Republic of India, there exists a line of continuity. Therefore, such old laws are still efficiently working. Article 372 of the Constitution embodies the legal continuity between the British sovereign and Independent India. Article 372(1) states: – (1) notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein. This Article in the Constitution evidences a legal continuity between the British sovereign and the Republic of India.
The Supreme Court in M Siddiq (D) ThrLrs v. Mahant Suresh Das &Ors (Ayodhya case) held that the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands, and submitted to the rule of law. Under our rule of law, this court can adjudicate upon private property claims that were expressly or impliedly recognised by the British sovereign. The 7-judge Bench of the Supreme Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, expressly rejected the contention that grants given by a former sovereign are merely voidable until expressly revoked by the new sovereign.
The Constitution empowers Parliament to repeal obsolete laws but a law is repealed when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned. Do these reasons really exist?
A law can be reviewed without repealing original Act through amendments if need arises. Banaras Hindu University was established during British regime by an Act of 1916. Central government is intended to repeal this Act. Now the question is whether the government would demolish the buildings of the BHU built during the British Raj. It is better to have a permanent commission in place to review the existing body of law and identify those that require repeal.
[Prof. Ishrat Husainteaches in Department of Law, Aligarh Muslim University, Aligarh. Email: [email protected]]