By Aratrika Choudhuri, WBNUJS, Kolkata.
On 16th July, the Union Cabinet chaired by Prime Minister Narendra Modi, gave its ex-post facto approval for Repealing and Amending (Third) Bill, 2015, which was introduced in Lok Sabha on 13th May, 2015, by Law Minister D V Sadananda Gowda, for repealing 187 Acts. This article presents a short historical account of this legislative reform initiative, which demonstrates the dire necessity for such legislative action, and examines key merits and limitations of the bill while providing recommendations for bridging the gaps imbricate in it.
A project titled “Legal Enactments: Simplifications and Streamlining” (LESS) was undertaken by the Law Commission of India, which continued the initiative taken by the 19th Law Commission to identify obsolete laws, according to the reference received from the then Minister for Law and Justice, Mr. Ravi Shankar Prasad. As part of this Study, the Commission submitted four interim reports (Report Nos.248, 249, 250 and 251) on Obsolete Laws on 12 September, 13 October, 29 October and 14 November 2014, which identified laws in need of complete repeal, amendment or simplification, for the consideration of the Government.
The removal of obsolete laws was an important component of the Bharatiya Janata Party-led government’s election campaign in 2014. The resolution of the contemporary Central Government to bring reform in the legal system of the country, to make it more accessible to the common man and to instill the principles of rule of law in everyday functioning of the government therefore, inter-alia, began with the review of enactments which are obsolete, redundant, incoherent and unnecessary. In fulfillment of this objective, the Central Government undertook the project of reviewing, analyzing and identifying antiquated laws. The primary initiative in this direction was taken to constitute a two-member Committee which, based on the aforementioned Law Commission Reports (recommending repeal of 289 Acts) and P. C. Jain Commission, examined various Acts which are now obsolete in part or in toto.
Based on the committee’s recommendations, the Appropriation Acts (Repeal) Bill, 2015 (to repeal 758 Appropriation Acts) and the Repealing and Amending (Second) Bill, 2015 (to repeal 90 Acts) are the most recent Repealing and Amending bills, which have been passed by the Parliament, while the Repealing and Amending (Third) Bill, 2015 (to repeal 35 Acts) is currently pending for consideration in Parliament. As part of the ongoing initiative of the Central Government, the present proposal is to repeal 187 obsolete and redundant laws lying unnecessarily on the Statute-Book. Accordingly, an appropriate saving clause has been incorporated in the Bill. On being enacted, it would reduce obsolete laws and bring in clarity to those for whose benefit the laws are enacted. The Repealing and Amending (Fourth) Bill, 2015 will soon be introduced in Lok Sabha for annulling 295 Acts which have been declared as redundant by respective central ministries.
The laws sought to be repealed are outdated not merely because of their antiquity, but due to their disjunction from the modern legal-political-social context. They impose an unwarranted burden on the law-implementation and law-enforcement system as a whole. For instance, it is widespread knowledge that a large number of Appropriation Acts (authorising expenditures for the duration of one financial year), which continue to be entrenched in statute books, have, in reality lost meaning and utility. This is because the very chassis of Appropriation laws presumes a limited duration for their operationalization. Pragmatically therefore, such laws, which subsist after the fixed period, ought to be automatically repealed. If such a mechanism were institutionalized, this process would lead to the annulment of nearly 600 laws.
The burgeoning number of such superannuated laws points to the subsistence of unnecessary confusion surrounding their utility, colossal paperwork involved in their retention, the obstacles they posit to efficacious governance and to streamlined judicial administration. A holistic process of abrogation of démodé laws and legislative provisions, which have ceased to be relevant, requires not only meticulous identification of such laws to propagate modernization and reform, but also a keen attunement to ever-evolving trends in legislative and judicial acts, Supreme Court and High Court judgments, and to the requirements of international conventions signed and ratified by India.
The costs of retaining such laws far outweigh their benefits and are, therefore, in immediate need of simplification, amendments or repeal. This process of a ‘periodical spring-cleaning’ of the voluminous corpus of Statute law is especially critical in the present era when the ius commune is growing exponentially every day. Where ignorantia juris non excusat is a primary assumption in the administration of law, it is desirable that citizens should not have to bear the added burden of taking note of such archaic laws, especially in the light of scarce resources available to the general public to comprehend the complexity of legal jurisprudence.
The obsolete laws sought to be repealed usually contain outdated subject matter and are therefore no longer necessary (for instance, the Oudh Sub-Settlement Act, Act 26 of 1866, which is redundant as Oudh has ceased to exist as an administrative unit) or they have fulfilled their purpose (for instance , the King of Oudh’s Estate Act, Act 19 of 1887, which served the purpose of satisfying claims made against the property of the King of Oudh) or there is newer law or regulation governing the same subject matter (for instance, the Punjab Laws Act, Act 4 of 1872, which is now superseded by the factual verification that a law in force in Delhi or Punjab no longer owes its applicability to this Act). The question of competent body which may repeal these laws is determined with reference to Article 372(1) of the Constitution which says that pre-independence laws continue to remain in force unless amended or repealed by a competent legislature, i.e., the legislature which would be competent to enact that law if it were to be newly enacted.
The Third Bill has a significant detraction insofar as it proposes to repeal “existing” laws, which have, in fact, already been repealed and are no longer a part of statute-books. Among the repealed laws that the government has proposed to repeal again are: The Export-Import Bank of India (Amendment) Act, 1998; The Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 2000; Small Industries Development Bank of India (Amendment) Act, 2000; Major Port Trusts (Amendment) Act, 2000; The State Bank of India (Amendment) Act, 2007; Merchant Shipping (Amendment) Act, 2007 and Banking Laws (Amendment) Act, 2012. All these were earlier repealed through the Repealing and Amending (Second) Bill, 2014 introduced in the Lok Sabha on December 3, 2014 by Gowda himself.
Such faux pas in framing the amendment bills may be easily avoided, by inserting ‘sunset clauses’ in the specific acts which are intended to cease operation after a fixed duration, unless further legislative action is taken to extend the acts. Australia affords an illuminating exemplification of these sunset clauses which ensure well-ordered removal of obsolete laws, by imbricating a utility-weighing framework and fixed duration of operation in the acts themselves. This, in turn, obviates the need for preparing and passing Repealing Bills in the first place, and avoids the considerable costs involved in such legislative exercises. It is, indeed, startling to note such fundamental errors in the very conception of the bill, given the comprehensive review of this bill by at least three committees, including the Law Commission of India.
Thus, while this legislative reform project of undertaking repeal, amendment and simplification of obsolete laws is certainly laudatory, care must be taken to ensure that such reform itself is well-planned and executed, for these Repealing and Amending Bills herald a welcome phase of modernization of legal reform.