The need to cull out archaic and irrelevant laws is, perhaps, most pronounced in an evolving society like ours. Judicial responses and reflection must mirror societal change, and yet the Indian legislative framework continues to be ridden with archaic laws, the oldest one dating back to 1836, 178 years behind time.
Earlier in August, parliament tabled a bill to repeal 36 archaic laws, prioritising the need to rid the judiciary of obsolete laws. Following this, in early September the Law Commission released a report recommending the repeal of 72 obsolete laws, sustaining the view that laws must keep pace with changes in the society and economy.
The report was a first installment in an ongoing study conducted by the Commission titled “The Legal Enactments: Simplifications and Streamlining”. The Commission has identified as many as 261 statutes that will undergo a review in the coming months to decide if they fit the bill for repeal or not. The Commission maintained that the study looks to provide a “holistic approach” and seeks to fulfill a long term objective of “modernization and reform of laws and legal structures.”
Apart from sifting out obsolete and redundant laws, the report highlighted the discrepancies in the current judicial system when it came to documentation and amendments. Despite having been recommended for appeal by earlier committees, the Commission found that 253 obsolete laws still continued to exist.
34 such laws, despite being repealed, continued to feature on the government website and dated Appropriation Acts (acts intended to operate on a limited period of time) were still mentioned in statue-books.
What adds to this is the fact that India does not have a procedure to remove Appropriation Acts which have served their purpose. The Commission made a recommendation to repeal Appropriation Acts that are older than 10 years, stating that, “this itself would result in the repeal of more than 700 laws”.
These acts recommended for repeal have been identified based on three factors:
1) the subject matter is outdated
2) the law has served its purpose and no longer relevant and
3) there is a newer law on the same matter.
A majority of the archaic laws like the Oudh State Act, Act 18 of 1876 or the Bengal Districts Act, Act 21 of 1836 were passed by the British to suit their convenience and have long served their purpose. But there are a few laws - primarily those related to political dissent and media gagging which would perhaps continue to be prevalent today, had it not been for Articles 14 and 19 of the Constitution (Freedom of speech and expression) that bring limited respite from such draconian laws.
Interestingly, the Law Commission report has brought into our consciousness some laws, the existence of which was either unknown to most or long forgotten. Some of these were:
Dramatic Performances Act, Act 19 of 1876
This colonial act allowed theState Government to prohibit performances which were scandalous and defamatory in nature or likely to reap feelings of disaffection. In the pre-independence era, this act was used to curb nationalist sentiments propagated through dramatic performances. The states of Delhi, West Bengal and Tamil Nadu have repealed the act on the grounds that it violates Articles 14 and 19 of the Constitution. The Commission states that the provisions are considerably similar to the central legislation, which should be considered for repeal on these grounds.
Prevention of Seditious Meetings Act, Act 10 of 1911
As per this law, the District Magistrate or Commissioner of Police could prohibit a public meeting which according to them was seditious in nature. The law however was vague and prone to subjective interpretations. The act was asked to be repealed on the grounds that the Indian Penal Code has provisions related to sedition and the existence of this law would further violate articles 19(1)(a) and (b) of the Indian Constitution.
Police (Incitement to Disaffection) Act, Act 22 of 1922
This colonial act made it an offence to spread “disaffection” among the police. Like many other gag acts, this too was ambiguous and aimed to keep nationalist activities at bay. Further, the Act did not state what qualifies as ‘disaffection’ and was prone to misuse through the official’s subjectivity. The law, though not completely obsolete, is an infringement on article 19(1) (a) and (b) of the Constitution.
While the Constitution of India grants freedom of speech and expression, media control has always been a debatable issue in the country. Pre-independence media too encountered upon immense regulation and control.
Young Persons (Harmful Publications) Act, Act 93 of 1956
This act prevented the dissemination of publications considered harmful to young people. As per the act, ‘Young person’ is defined as a “person under the age of 21 years which is inconsonant with several other legislations defining the age of majority”. The Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted inter alia to protect children from harmful publications. This Act has also been recommended for repeal by the PC Jain Commission.
Waste Lands (Claims) Act, Act 23 of 1863
During the enactment of the act, land not used for agriculture was titled as “wasteland” and the colonial state asserted control over these lands. Today, a majority of the waste-lands are administered under the Indian Forests Act, 1927 and the Scheduled Tribes and Other traditional Forest Dwellers (Recognition of Forests Rights Act), 2006.
The repeal for this act has been stated considering wastelands are considered the common property of the village and the act, according to the Commission, “would perpetuate colonial mindset surrounding management of waste-lands”.
Elephants’ Preservation Act, Act 6 of 1879
The Act makes it an offence to kill, injure or capture wild elephants except in cases of self-defence, or in accordance with a licence granted under the Act. The Act has now been subsumed into the Wildlife Protection Act; 1972. The rules under the Wildlife Protection Act are much more stringent rendering the previous law null and obsolete.
Wild Birds and Animals Protection Act, Act 8 of 1912
In congruence with the Elephant’s Preservation Act, this act too made it an offence to capture, kill or carry on trade of any bird or animal included in the Schedule annexed to the Act. The Act has now been subsumed into the Wildlife Protection Act, 1972.
All these three laws have now been subsumed into the newer Wildlife Protection Act.
The implications of the Law Commission report could be far reaching on society today. “This report helps clear the statute books, which means there's less scope of conflict between older and newer laws leading to protracted litigation. We saw several examples of this happening while we were researching these laws. Some pre-constitutional laws also now go against the scheme of the constitution and hence should not be part of our legal system,” said Srijoni Sen an advocate with Vidhi Centre for Legal Policy which is a part of the committee undertaking this extensive study.
The Commission now has a mammoth task ahead of itself. “The Commission had originally earmarked 250 plus laws to study. This is just the first installment; so in the next 1-2 months all of the potential laws will be studied and recommendations made,” said Srijoni.
On 29 September, the Union Law minister Ravi Shankar Prasad announced that a fresh bill would be tabled in the winter session of the Parliament, seeking the repeal of 287 acts that the government has identified as obsolete, acting upon the Law Commission’s report. The minister also said that he was expecting another report from the Commission around the middle of October, identifying 50 more obsolete laws.
As George Bernard Shaw said, “Those who cannot change their minds cannot change anything.” Perhaps such a step is only reflective of changing minds.