This article is written by Meenal Sharma, a student of Vivekananda Institute of Professional Studies. In this article, the author discussed the need to repeal old, obsolete and redundant laws.
Table of Contents
Introduction
Indian laws have always been influenced by its customs and practices. India embraces its ancient traditions, however, it would be right to say that old is not always gold. With the changing society, customs and everyday practices also change. As society embraces the new changes, it abandons old and inefficient practices and accustoms itself to efficient practices. As every society keeps on changing, the laws regulating the society must keep changing as well. Creating efficient legislation is of paramount importance for an efficient legal system.
As much as it is important to formulate an efficacious law, it is also important to structure it in a manner that it ceases to exist after it has served its purpose. Currently, India has laws which are in existence since the pre-independence period. Out of them, many laws are antiquated and no longer in use. The need of the hour is to repeal these laws for laws which are relevant to deal with the current issues in the society. In this article, we will discuss why there is a need to repeal old, obsolete and redundant laws.
Why is there a need to repeal laws
Repealing of laws refers to revoking or cancelling a law. The aim is to have minimum legislation and maximum governance. Just as the legislature has the power to make laws, it has the power to repeal laws as well. When laws become outdated and obsolete, they should be repealed so that there is less confusion. When there are too many legislations, they are bound to overlap in some cases. Such laws must be amended or repealed for the sake of simplification.
Obsolete and overlapping laws
There are various laws which still exist that have colonial undertones in it. Such laws should have been repealed in 1950 when the Constitution of India came into existence. For example the Indian Treasure Trove Act, 1878 which provides that any treasure found in India belongs to Her Majesty. The Transfer of Property Act, 1882 still contains provisions dealing with English mortgages.
Another law that needs to be repealed is the East Punjab Agricultural Pests, Diseases and Noxious Weeds Act, 1949. According to this Act, the district magistrate can call any male above the age of 14 to render all possible assistance to carry out preventive and remedial measures in case of a locust attack in Delhi. According to this Act, any person need not be personally notified for their services and that the beat of a drum should be sufficient notice.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 criminalises non-payment of maintenance. This is an absurd law that provides imprisonment for non-payment of maintenance to senior citizens. Such laws should be amended or repealed for provisions that inculcate liability for non-payment of maintenance by either attaching property or any other method to ensure maintenance. The Prisons Act, 1894 contains a provision that provides whipping with a light ratan on the buttocks as a form of punishment for prison offences. Such provisions are objectionable and yet they continue to exist.
Certain laws overlap with each other such as the Chemical Weapons Convention Act, 2000 and Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 which also provides for provisions relating to chemical weapons. It lays down a non-obstante, in case of conflict with another law the 2005 Act shall prevail. However, there are two different punishments provided under both Acts. This is just one example; there are numerous provisions where non-obstante clauses have been used for the application of newer legislation than the former.
Apart from all these, there are various other laws which are obsolete, redundant and overlapping with each other. Such laws should be repealed or amended for efficient laws.
The Ramanujam Committee was constituted on 1 September 2014 consisting of Shri R. Ramanujam, Secretary, Prime Minister’s Office as Chairperson and Shri V.K. Bhasin, Former Secretary, Legislative Department, Ministry of Law and Justice as Member. The Committee identified about 1741 Acts out of 2781 Central laws to be repealed. Since 1950, there have been various Repealing and Amending Acts. 1367 Acts were repealed from 1950 to 2001.
The repealing and amending acts
Since 1950, there have been various Repealing and Amending Acts. 1367 Acts were repealed from 1950 to 2001. There have been two Repealing and Amending Acts in 2015 and 2017 each and one in 2016. The latest Act is the Repealing and Amending Act, 2019. This Act is a periodic measure taken by the legislature to repeal laws which are obsolete or are defective.
The Minister of Law and Justice, Mr Ravi Shankar Prasad introduced Repealing and Amending Bill, 2019 in Lok Sabha on 25 July, 2019. The Bill was passed in the Lok Sabha on 29 July 2019 and in Rajya Sabha on 2 August 2019. On 8 August 2019, the Bill received assent from the President. The Act repeals 68 Acts while making amendments in The Income Tax Act, 1961 and the India Institutes of Management Act, 2017. The Acts which have been repealed are mentioned in the First Schedule of the Act. They include the Beedi Workers Welfare Fund Act, 1976 and the Motor Vehicles (Amendment) Act, 2001.
Decriminalization of certain offences
The judiciary has taken commendable steps in decriminalizing certain offences which became obsolete.
Adultery
Section 497 was held to be unconstitutional in Joseph Shine v. Union of India and was held to be violative of Article 14 and 15 of the Indian Constitution. According to this provision, women are not subject to be prosecuted for adultery. Section 198(2) of the Code of Criminal Procedure which dealt with adultery was also held to be unconstitutional and violative of Article 14. As per the former Chief Justice of India, Dipak Misra, the provision reflected social dominance that was prevalent at the time of the drafting of the provision.
Beggary
Recently certain acts were decriminalised by the judiciary. The Delhi High court decriminalised beggary by striking down 25 provisions of Bombay Prevention of Begging Act, 1959 which were extended to Delhi in Harsh Mander v. Union of India. As per the Act, the government provided a mandate to provide social security and ensure that citizens have basic facilities. The presence of beggars means that the state has not provided basic facilities to its citizens. A person found begging was arrested without a warrant and when such a person was taken to the court, he was detained up to 10 years.
The Jammu and Kashmir High Court also struck down the Jammu & Kashmir Prevention of Beggary Act, 1960 and the Jammu & Kashmir Prevention of Beggary Rules, 1964 and decriminalised beggary. This Act authorised forced medical examination of beggars in police custody and authorised shaving of hair and removal of their clothing for cleansing purposes. The State government opined that by forcing people into ‘Beggar Homes’ and by decriminalising beggary, they could reform their lives. The J&K High Court held the Act as unconstitutional and violative of Article 19(1)(a) and their right to freedom of movement.
Homosexuality
In Navtej Singh Johar v. Union of India, the Supreme court struck down Section 377 of the Indian Penal Code, 1860 that criminalised unnatural sex and held it to be arbitrary. The judgment decriminalises all consensual sex among adults. As per the former Chief Justice of India Dipak Misra, the Lesbian, Gay, Bisexual and Transgender community has rights like every other community and the majoritarian views cannot control the constitutional rights of others. Moreover, he said that prejudice has to be vanquished and equal rights must be ensured by embracing inclusion.
Other laws that need to be repealed
Attempt to commit suicide
Section 309 of the Indian Penal Code, 1860 lays down the punishment of 1 year and/or fine for attempting to commit suicide or doing any act for a commission of the offence. This is a 19th-century law which was enacted by the Britishers when attempting to commit suicide was considered to be a crime against the State.
In P. Rathinam v. Union of India (1994) the Supreme Court held Section 309 to be unconstitutional and void. It was observed that the section amounts to double punishment and women who attempt suicide after abuse cannot be criminally penalised for their suicide attempt. However, in Gian Kaur v. State of Punjab (1996), the Supreme Court again upheld the validity of Section 309, IPC.
The Law Commission in its 210th Report said that an attempt to commit suicide calls for medical and psychiatric care rather than punishment. The Supreme Court in 2011 recommended that the Parliament should consider deleting this section.
The Mental Healthcare Act, 2017 has restricted the application of this section. This section would deprive the victim of medical attention required in the prime time of their illness.
Sedition
Section 124 A of the Indian Penal Code, 1860 defines sedition as an offence that punishes anyone who by words, signs or by representation brings or attempts to bring hatred or contempt or disaffection towards the government shall be punished with life imprisonment or imprisonment of three years to which fine may be added.
The provision was added by the Britishers to repress India’s struggle for independence. This law was designed to curtail the liberty of the citizens. The United Kingdom, where this law originated, has now repealed the law. However, it still exists in India.
At present the Courts have ruled that an expression used to incite violence amounts to sedition. However, the law is also being used against activists and journalists who simply express their criticism. The sedition law often leads to unauthorised censorship and curtails the freedom of speech as the law is very vague. It is used as a tool to stifle the dissent expressed towards the government in certain cases. Therefore there is a need to repeal this law for a law that targets offenders that speak against the nation and not those who simply criticize certain acts of the government.
Conclusion
There are a large number of legislations prevailing in India that are redundant or obsolete. Most of these laws are archaic as they were formulated by the Britishers to deal with situations that arose in the pre-independence era. After almost 73 years of independence, these old laws are still existing in the statute books. Due to a high number of loopholes present in these laws and due to their vagueness, they are being exploited by the higher authorities. Hence, the exercise of repealing of laws is the need of the hour. Moreover, with the changing mindset of the society, the needs of the society also change. One of the major things that India is deprived of is an efficient legal system. To improve its efficiency it is necessary to let go of laws that are archaic and obsolete.
The legislations prevailing in India must be less and they should be relevant which will simplify and speed up the legal process. Also, a minimum number of legislations means a high quality of governance which is much needed by a developing country like India. This exercise of repealing and amending laws by the legislature should be regular where inefficient laws no longer in force are replaced by laws that cater to the updated rules of society. There is a need to adopt a practice of desuetude which is a norm that laws which have not been enforced for a long period expire automatically. Also, the legislature should focus on adding a sunset clause in future laws so that they do not create hindrance or nuisance for future generations. To ensure strict adherence to such practices both legislature and judiciary need to adapt a receptive and dynamic approach.
References
- https://theprint.in/india/the-1949-act-modi-govt-could-use-to-pull-in-boys-above-14-to-fight-off-locusts/432269/
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