The old order changeth not

The Indian Express | 29 Dec 2017

Many redundant laws have been repealed. But much of the deadwood waits to be removed, especially in states.

Let’s being with a quote from the President’s speech at the inaugural session of National Law Day conference on November 25, 2017. “Access also relates to simplifying laws and repealing outdated laws — an area where the Law Commission has done our country enormous service. I understand the government has identified around 1,800 laws that require to be removed from the statute books. In the past three years, Parliament has repealed about 1,200 obsolete and unnecessary laws. This will decongest the statute books and promote ease of governance.” In India Code, in the list of existing statutes, two of the oldest are both from 1836 — the Bengal Indigo Contracts Act and Bengal Districts Act. Why should these remain on statute books? If 1,200 have been repealed, what about the remaining 600? How many statutes are there, statutes meaning those enacted by the Union government? While state-level statutes are also important, those aren’t part of India Code listing. In 2014, there were three complementary initiatives. First, in September 2014, the PMO set up the Ramanujam Committee to identify central government statutes ready for repeal. Statutes have to be specifically repealed, because in common with common law traditions, India doesn’t have a system of desuetude. Unless specifically identified and repealed, statutes are open-ended and remain on the books. The Ramanujam Committee gave us a database of 2,781 existing Union-level statutes. Of these, 380 were enacted between 1834 and 1949, before the Constitution came into being.

The Ramanujam Committee identified 1,741 old statutes that were ready for repeal. In other words, 63 per cent of central legislation could be repealed without affecting governance adversely. If the number is 1,741, why did the President say around 1,800 and what has happened to the 1,741? Let’s take the second question first. There was the Repealing and Amending Act of 2015 (Act 17 of 2015). This amended some laws but also repealed 35 old statutes. There was the Repealing and Amending (Second) Act of 2015 (Act 19 of 2015). This too amended some laws but also repealed 90 old statutes. There was the Appropriation Acts (Repeal) Act of 2016 (Act 22 of 2016). This repealed 758 Appropriation Acts. There was the Repealing and Amending Act of 2016 (Act 23 of 2016). This amended some laws but also repealed 295 old statutes. Add these and we get the 1,200 count, or almost 1,200. There is a Repealing and Amending Bill 2017 pending in Parliament. There is a Second Repealing and Amending Bill 2017 pending in Parliament. When these are passed, you get a tally of 235 more old statutes. Together, they (1,178+235) add to 1,413. Out of that aggregate of 1,741, we still have to account for 328. This takes us to the question of jurisdiction, so to speak. In passing, in 2001 also, the Union government repealed several acts.

The 380 statutes identified by the Ramanujam Committee in the database were enacted between 1834 and 1949, before the Constitution came into being. These may be “Central” laws, but after the Constitution, the subject matter may have moved to states under the Seventh Schedule. In at least two cases, I know of (there may be more) in 1976 and 1995, the Supreme Court has held, in such cases, amendment or repeal can only be done by state legislatures. Accordingly, the Ramanujam Committee identified 83 old statutes that could only be repealed by states. Earlier, I mentioned three complementary initiatives in 2014. The second was four reports (248 of September 2014, 249 of October 2014, 250 of October 2014 and 251 of November 2014) by the Law Commission on obsolete laws, “warranting immediate repeal”. The third was a 100 Laws Repeal Project by the Centre for Civil Society (CCS), in collaboration with NIPFP and Vidhi Legal Centre. Factoring all this in, the Law Commission identified 62 statutes that needed to be repealed by the states, in addition to 83 identified by the Ramanujam Committee. 1,741+62=1,803. I think that’s the reason the President mentioned 1,800 laws. On eliminating such deadwood at the Centre, there has thus been quite a bit of actual action and focus shifts to states. I should also add there are an identified (post 1977) 144 state appropriation Acts that have to be repealed by the states. This is in addition to the Ramanujam Committee and Law Commission.

The CCS has now brought out Repeal Law Compendiums for five states — Chhattisgarh (25 statutes), Telangana (26 statutes), Uttar Pradesh (37 statutes), Maharashtra (21 statutes) and Karnataka (24 statutes). I presume compendiums for other states will follow. To the best of my knowledge, only a few states have done something about eliminating such deadwood. I mean recently. For example, Tamil Nadu did repeal old statutes in 1951 and 1952, but that’s not what I had in mind. Odisha did some repealing in 1976. In Kerala, 697 statutes were repealed through an ordinance in 2005 and 102 through a Repealing Act in 2016. In Rajasthan, 248 old statutes were repealed in 2015. (In Rajasthan, there is an even more important reform of rationalising and harmonising the laws that remain, but that’s a different story.) In 2016, the Maharashtra Repealing Act junked 64 old statutes. Gujarat repealed old statutes four times, in 2000, 2004, 2005 and 2006, adding up to 85 statutes. Karnataka repealed 137 in 2002 and 143 in 2017, while Telangana repealed 18 in 2017. In recent years, that’s a total of seven states. It’s a bit odd that you don’t readily get a tally of which state has done what in eliminating deadwood. Why aren’t more states interested? Probably inertia.

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