Cutting through the legal maze

Illustration: Mayanglambam Dinesh
Illustration: Mayanglambam Dinesh

Are Santhal tribals “uncivilised”? While the notion flies in the face of democratic sensibilities, that is exactly how a Central Act still on the statute books refers to the Santhals. Enacted in 1855, the Sonthal Parganas Act calls the Santhals an “uncivilised race of people”, reflecting the colonial worldview of the erstwhile British rulers regarding the tribal communities of India. It was introduced in the backdrop of the legendary 19th-century Santhal rebellion against the British administration and the zamindari system. Our law books are replete with Acts that were essentially meant to serve the interests of the British Raj and have little relevance in 21st-century India.

Acknowledging the existence of “hundreds” of such obsolete laws, the Narendra Modi-led Union government has declared its intention to repeal many of them. Law Minister Ravi Shankar Prasad recently announced that a Bill seeking to enable this would be tabled in the forthcoming winter session of Parliament. Prasad later added that the law ministry has identified 287 laws that will be repealed first.

Soon after assuming office, Prime Minister Modi had clearly said that his government would accord top priority to weeding out archaic laws that serve little purpose and are merely relics of the colonial era. A special committee was also constituted to scrutinise “obsolete” laws that stand in the way of good governance by creating “avoidable confusion”. Headed by R Ramanujam, secretary in the Prime Minister’s Office, this committee will examine all Acts whose repeal had been recommended by an earlier committee on “review of administrative laws” appointed by the Atal Bihari Vajpayee government in 1998.

The earlier committee had recommended the repeal of 1,328 Acts, but only 415 of them were actually repealed in the subsequent years.

That’s not all. The 20th Law Commission headed by Justice (retd) AP Shah, which submitted an interim report titled ‘Obsolete Laws: Warranting Immediate Repeal’ to the law ministry on 12 September has identified 261 statutes that are “archaic” and pointed out that there is an “urgent need” to repeal 72 of them. The commission suggested “further study” of the other statutes before they are formally recommended for repeal.

Legal experts and civil society activists have welcomed the initiative to weed out archaic laws. Some of them, however, wonder if certain laws of the Raj vintage — for instance, the sedition law — that are still used to suppress political dissent would be considered for repeal. They point out that it would take “extraordinary political sensitivity” to repeal them.

“Spring cleaning of laws is a must for an efficient legal system,” says Justice (retd) Rajinder Sachar. “But if the government lacks the will to weed out certain colonial laws aimed at suppressing political dissent, the entire process would be nothing but a sham.”

Agreeing that removing redundant laws would accelerate legal procedures, former MP and legal expert Sebastian Paul suggests the incorporation of a “sunset clause” into laws to help make the process more systematic. “Most of the western countries, including Britain, have included sunset provisions in their statute books,” says Paul. The sunset clause ensures that a law automatically expires after a certain period if the lawmakers do not authorise it again.

“The elected representatives should make sure that the government is not implementing a narrow agenda in the name of weeding out archaic laws,” adds Paul. As an example, he points out that the “much celebrated recent reforms in labour laws would alter the power equation between labour and capital in a big way and the workers would bear the brunt”.

Following are some of the laws identified by the Law Commission for repeal –

Serious intent Union Law Minister Ravi Shankar Prasad
Serious intent Union Law Minister Ravi
Shankar Prasad

Dramatic Performances Act (Act 19 of 1876)
The Law Commission suggested that this Act “has no place in a modern democratic society”. It had been enacted at a time when the anti-colonial struggle was just beginning to use theatre as a political tool. The law was introduced to “empower the government to prohibit native plays which are scandalous, defamatory, seditious or obscene” (‘Statement of the objectives and reasons’ of the original Bill).

Unlike most of the other laws recommended for repeal, this one is not “obsolete” in the sense of not being used in recent times. “In fact, it has been extensively used,” says Srijoni Sen, senior resident fellow with the New Delhibased Vidhi Centre for Legal Policy, and one of the legal experts associated with the preparation of the Law Commission’s interim report. “For instance, the Madras High Court pronounced the verdict last year in a case where the petitioners had argued that under the Tamil Nadu version of the Act, police permission had to be sought before staging a play, with the police authorities examining the script to rule out any objectionable content.”

Sonthal Parganas Act (Act 37 of 1855)
According to the preamble of the Act, “the general Regulations and Acts of Government now in force in the Presidency of Bengal are not adapted to the uncivilised race of people called Sonthals”. The Law Commission clearly says that the “Act employs language to describe the tribal population that has no place in the modern era. The language of the Act runs contrary to the spirit of the Constitution”. This Act was enacted soon after the Santhal rebellion.

Police (Incitement to Disaffection) Act (Act 22 of 1922)
According to the Law Commission, “This colonial Act introduced as a curb to nationalist activities made it an offence to spread disaffection among the police. The Act is loosely worded and prone to misuse. Also, the Act does not describe what amounts to ‘disaffection’. This law acts as a significant curb on the freedom of speech, though it is not an obsolete law given some documented uses. However, the need for this law should be reexamined in light of its potential infringement of Articles 19(1) (a) and (b) of the Constitution.”

As a “classic case of misuse” of this Act, Sen points out that the Andhra Pradesh Police invoked it last year to charge the resident editor of the Hyderabad edition of The Hindu after the newspaper reported on the visit of V Dinesh Reddy, the then DGP, to the abode of a godman called Habib Mustafa Idrus Baba.

Children (Pledging of Labour) Act (Ac t 2 of 1933)
The Law Commission report points out that a particular provision (definition of ‘agreement’ under Section 2) in the Act “would amount to approving child labour if ‘reasonable wages’ are paid to the child. Some other provisions in the Act are also in conflict with the later progressive enactments on child labour”.

Bangalore Marriages Validating Act (Ac t 16 of 1936)
This law was enacted to validate certain marriages solemnised by Walter James McDonald, a missionary and priest “within the territories included in the Civil and Military Station of Bangalore between persons one of whom was a native Christian subject of Mysore, and neither of whom was a Christian subject of His Majesty”. It is clearly obsolete.

Young Persons (Harmful Publications) Act (Ac t 93 of 1956)
This Act defines a “young person” as someone under the age of 21 and prevents the dissemination of certain publications that can “corrupt” young minds. It is deemed as being anachronistic in its notions of morality. Moreover, access to the Internet has completely changed the context in which the issue has to be approached and there are other laws today to deal with it.

Delhi Hotels (Control of Accomodation) Act (Act 24 of 1949)
According to this Act, “the Director of Estates can reserve upto one-fourth of the total accommodation available in certain private hotels in Delhi for use by government officials”. This violates Article 19(1) of the Indian Constitution.

Sheriff of Calcutta (Power of Custody) Act (Act 20 of 1931)
This Act “extended the powers of the Sheriffs of Calcutta to hold persons in lawful custody. If the Sheriff was required to take a route while holding a person that lay outside his jurisdiction, this Act permitted him to do so”. It serves no purpose today.

Bengal Districts Act (Act 21 of 1836)
This is said to be the oldest of the archaic laws and was enacted to facilitate the expansion of the British empire. Now, it has no relevance.

Bengal Bonded Warehouse Association Ac t (Ac t 5 of 1838)
This Act stipulates that “only residents of the Presidency of Fort William in Bengal can be directors of the Bengal Bonded Warehouse Association and that the Association can sell its property only to the East India Company”. While the East India Company has ceased to be, this law is yet to be repealed.

Ganges Tolls Act (Act 1 of 1867)
This Act authorises the levy of tolls for boats plying on the river Ganga. The Law Commission points out that it uses “antiquated language” and makes no sense today.

Fort William Act (Act 13 of 1881)
This Act was enacted for the better governance of Fort William in Bengal. A commissioned officer in the Indian Army can “try and punish persons charged with the violation of the rules framed under the Act”. Violations include “throwing dirt or rubbish, negligent driving, disorderly behaviour in public” etc. The Law Commission commented that the Act violates the principle of the separation of the executive from the judiciary.

Births, Deaths and Marriages Registration Ac t (Ac t 6 of 1886)
This Act was enacted for the “voluntary registration of the births and deaths of certain classes of persons, mainly Christians and Parsis, along with those governed by the Indian Succession Act”. Apart from pointing out several inconsistencies, the Law Commission noted that “registration of only certain classes of people belonging to a specific religion is likely to fall foul of Article 14 of the Constitution”.

Sarais Act (Act 22 of 1867)
This Act gives powers to the district magistrate to regulate “public sarais” (hotels) and has provisions related to “registration, character certificate and written reports from the sarai keeper, among others”.

The Law Commission suggested its repeal as there have been instances of the police and tourism department officials using certain redundant provisions to harass hotel owners. There are also sufficient modern legislations to regulate hotels.

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