RULE OF FLAW

Laws you didn’t know you were breaking can come back to bite you. Modi forms committee to yank them off India’s statute books.

ACCORDING TO THE PM’S OFFICE, THERE ARE 1,382 ARCHAIC LAWS THAT NEED TO BE REPEALED. THE NEW COMMITTEE WILL SUBMIT ITS REPORT IN THREE MONTHS.

Did you know that you can be jailed for flying a kite? By an 80-year-old law, you need the same permit to play the line as fly an aircraft. In Delhi, it’s perfectly legal to call on men to beat drums on the streets if locusts attack the city, says a 65-year-old law. Are you aware of your 127-year-old right to saunter into any hotel to drink water and use washrooms for free? What about the 136-year-old act that mandates jail time if you stumble upon Rs 10 and keep quiet? And you really need to brush your teeth if you aspire to be a motor vehicles inspector in Andhra Pradesh. A 100-year-old law holds that you can be disqualified for not having a set of beautiful teeth.

India’s repertoire of laws that don’t work—the bizarre, the weird, the irrelevant and the absurd—seems infinite. They are not necessarily bad laws, just obsolete as smokebelching steam engines. But, beware, they are all ‘live’ laws that can theoretically be moved in court. With a backlog of over 31 million pending cases, that would take 364 years to get cleared on a strength of 10.5 judges per million people, do we have the right to clog our overburdened system with dated and daft irrelevance? The good news is: the wheels of legal machinery have started creaking forward. On August 11, the Union government introduced a bill in the Lok Sabha to repeal 36 acts. And on August 28, a committee has been set up to review and identify obsolete laws. Will it manage a lasting escape from the dead wood on India’s statute books?

GIVE ME 10 LAWS

“What a vast network of laws regulates our lives, workplaces and businesses,” Prime Minister Narendra Modi had told an assemblage of tradesmen in Delhi before he became the PM, on February 27. “Give me 10 laws each in your department which we can repeal,” he had asked Union secretaries right after being anointed PM. On June 5, Cabinet Secretary Ajit Seth had sent out a note, listing 11 “urgent” directives to top bureaucrats, one of which was to identify absurd archaic laws, rules, injunctions and restraints that could lead to loss of efficiency and be repealed. Union Law Minister Ravi Shankar Prasad introduced the Repealing and Amending Bill, 2014, in Parliament this month. “I will ensure that in the next session of Parliament, up to 300 outdated laws are repealed,” he said on August 15 at a gathering of the Supreme Court Bar Association.

He has a major task in hand. According to the PM’s office, there are 1,382 archaic laws that need to be repealed. The new committee, chaired by R. Ramanujam, PMO secretary, will review obsolete administrative laws first and submit its report in three months. What will they face? First, that there’s no clarity on what the word ‘law’ means: should one consider the central acts, or state-level statutes, the rules, notifications and circulars enacted for administrative purposes or non-codified common law traditions, personal laws that apply only to members of specific communities or the decisions of the Supreme Court that have the force of law? There’s confusion also over what should be repealed: sometimes an entire statute is dysfunctional, sometimes sections of it might be so.

Add to it the fact that there is no complete list of all enacted laws in the country. The number of central statutes is often estimated at about 3,000. No one knows how many state-level laws are in effect. The Jain Commission, set up in 1998, estimated there might be 25,000-30,000 state laws. Of administrative and local laws, they simply could not calculate. “That makes it impossible to exorcise the dead wood from statute books,” says jurist Soli Sorabjee. But a statute never dies, unless specifically repealed. “Hence, laws that are archaic and whose existence does not serve any purpose have to be scrapped,” explains the former attorney general of India.

RELICS OFTHE RAJ

Why does India find it so difficult to write off dysfunctional, old laws? Is it a colonial hangover? After all, for 65 years after they quit India, Britain clung on to relics of its imperial past in statute books: 38 old laws on the Indian Railways, until dumped into the dustbin of history in November 2012.

A lot of absurdities do date back to India’s colonial past. There are at least 192 laws that have been around for over 100 years. They refer continuously to the East India Company, the Crown,

governor general or the Privy Council. The oldest on the statute book are two 178-year-old laws—Bengal Indigo Contracts Act and Bengal Districts Act of 1836—that helped consolidate British rule by enforcing cultivation of cash crop indigo and chalking out new districts in any which way. The Bengal Bonded Warehouse Association Act, 1838, stipulates that the association can sell its property only to the East India Company.

That legacy serves other purposes, too. Take India’s alcohol laws. Mahatma Gandhi’s views had played a role when the framers of the Constitution drafted Article 47: “The state shall endeavour to bring about prohibition… except for medicinal purposes”. But loss in revenue and the rise of the black market made it untenable, although former prime minister Morarji Desai tried unsuccessfully to bring it in twice. In 2012, police battery on Mumbai party-goers was taken in the name of the 63-year-old Bombay Prohibition Act, 1949—to force all above age 25 to possess a licence to drink or pay Rs 50,000 and/or be in jail for five years.

WHEELS TURN

It was in 1958 that the Law Commission under M.C. Setalvad examined the British statutes then in force and their applicability in India, recommending the repeal of Converts’ Marriage Dissolution Act of 1866. “It wasn’t until 1961 that the first repealing act came,” says economist Bibek Debroy, professor at Centre for Policy Research in Delhi. That year the British Statutes (Application to India) Repeal Act was passed, followed by minor repeals in 1964, 1974 and 1979. In 1984, the commission recommended a comprehensive report of obsolete central laws. “But there was no spring-cleaning,” adds Debroy. “The momentum picked up in the 1990s, perhaps triggered by economic reforms.”

LARGE LAWS

It was in 1993 that Debroy was approached by the Chief Economic Adviser of the finance ministry, economist Ashok Desai, for a project on law reforms. Manmohan Singh, as finance minister, wanted to change The Foreign Exchange Regulation Act (FERA) of 1973 and took this opportunity to look at all economic and commercial laws. Funded by UNDP and helped by the National Law School of India University in Bangalore, project Legal Adjustment and Reforms for Globalising the Economy (LARGE) ended in 1998. “In terms of legislation it’s difficult to pin down the impact LARGE had, but it was hugely success- ful in sensitising people,” he says.

Most of all, LARGE created a database, mainly of commercial and economic laws. This proved useful when the four-member committee headed by P.C. Jain was set up in May 1997 under the United Front government. All Union and chief ministers and government departments were directed to list and assess relevance of laws in their sphere. In April 1998, Prime Minister Atal Bihari Vajpayee stepped in and promised a holistic review of laws and procedures under the BJP government. The committee prepared a catalogue of 1,300 laws that needed to be weeded out and recommended incorporating a “sunset provision” in laws so that they cease to exist after a specified period. It was under Arun Jaitley as the Union minister of law, 2000-2002, that 200 obsolete laws were finally repealed.

UNHAPPY BABUS

The 1998 report had come down heavily on the bureaucracy, not only for its failure to reduce the legislative burden but also adding to it. “All too often, the bureaucracy gets in the way of legal change,” says jurist Ram Jethmalani, Union law minister, 1996, 1999-2000. “I had appointed a committee to examine the statute book,” he says. “The experts reported that some 1,200 laws had become redundant and needed to

be repealed.” But when Jethmalani passed on the report to bureaucrats, they came up with a startling suggestion: “Sir, only 12 laws need to be scrapped”. “That’s because every law contains some power for some bureaucrat. They did not want 1,200 powers to be taken away.” He recalls repealing the absurd Indian Boilers Act of 1923 in 2000. “It had become useless over a very long time. Such boilers did not exist anymore but the law was still there.”

POLITICS OF SILENCE

Others talk of lack of political will. Ask jurist Tahir Mahmood, member of the 18th Law Commission, in charge of compiling obsolete laws: “It’s foolish to have laws framed in the 19th century without amending those. But where is the political will?” For the last 10 years, the commission’s terms of reference have always included repeal of obsolete laws, he explains. It has sent all its reports on time, but no action has been taken. “People in the law ministry do not want to take a look at old laws. They are scared of political fallouts,” he says. What’s more, with “red tape and personal bias” working in the system, the government drags its feet endlessly to form a new commission every three years, adds the former dean of law, Delhi University. The work suffers.

Laws don’t suddenly become bizarre or useless. “It is due to a very serious change of circumstances in a country’s culture, economic needs or political dispensation that some laws need to be amended,” says jurist KTS Tulsi. “We are trying to run a judicial system in a supersonic age with bullockcart technology.” From service to summons to bail, everything in the justice system is manual. Fifty per cent of judicial delay is due to non-service of summons, arguments over validity of summons, proper identification and so on, he explains. “Even in the high-profile 2G case, gunny bags full of papers were carted off from the accused to the courts and vice-versa.” That old-fashioned ethos keeps the courts clogged up and the statute books overlong.

GOOD LAWS, BAD LAWS

India has a painful range of laws and a lot that can be junked. It does not, however, mean that India’s legal foundation is not sound. “Take our basic criminal law, the Indian Penal Code. It was drafted by Lord Macaulay in the 1860s and it has stood the test of time,” says Jethmalani. “India has the finest Constitution. It’s a far better document of governance than the US constitution,” adds Tulsi. “What we need is a bit of spring-cleaning,” points out Sorabjee. So here’s our list of laws, strange and sublime, to help the nation get started:

KITE ALERT Don’t stand on your roof on idle afternoons to hold your kite aloft. You can be jailed for playing the line. You need a government permit to make, possess, sell or fly a kite—just as you do for a plane. > Indian Aircraft Act, 1934

TOOTHY TALE Brush your teeth well if you aspire to be a motor vehicles inspector in Andhra Pradesh. You’ll be disqualified otherwise. Pigeon chest, knock knees, flat foot, hammer toes and fractured limbs can also disqualify you. > Indian Motor Vehicles Act, 1914

MACHO DELHI Get ready, Delhi men. You can be called in anytime to beat drums on the streets if locusts invade the city. Ignore and you will be fined Rs 50 or put behind bars for 10 days. > East Punjab Agricultural Pests, Diseases and Noxious Weeds Act, 1949

HOTEL FREEBIE Did you know that for 127 years you’ve had the right to saunter into any hotel, even the outrageously posh ones, to drink water and use toilets for free? > Indian Serais Act, 1887

AIM IT RIGHT If you visit a factory, remember to spit only in spittoons (or pay up Rs 5). Owners have to whitewash walls (colour won’t do), keep drinking water in earthen pots (not purifiers), sand in red buckets to guard against fire (not fire extinguishers) and count electricity in horse power (not kilowatts). > The Factories Act, 1948

COURIER WOES Private courier services are technically illegal. Only the government has the right to courier letters. They can get away with it, though, by calling letters ‘documents’. > Indian Post Office Act, 1898

TOPI TAMASHA You can’t wear a khadi Gandhi topi in an

Indian prison. “We regret the decision of the Government to place it on the statute book,” wrote Gopal Krishna Gokhale in 1911. And we regret to see it 100 years later. > Prevention of Seditious Meetings Act, 1911

TEN STEPS It’s illegal for more than 10 couples to dance together on the same dance floor. > Licensing and Controlling Places of Amusement (other than Cinemas), 1960

BAD DATE How does a 129-year-old law that predates the arrival of radio (1923) and television (1959) govern the two services even today? > Indian Telegraph Act, 1885

HATS OFF A policeman still needs to doff his hat to royalty. But where are they? > The Police Act, 1861

PAISE PUZZLE There’s no anna paise to spend anymore yet you may have to cough up “12 annas per hundred maunds” of baggage if you’re plying the Ganga on a boat. > Ganges Tolls Act, 1867

WHAT’S OBSCENE? If you do any “obscene act” in public and cause “annoyance”, you’ll have to face jail or fine or both. What does “annoyance” mean? The law is silent. You are free to slap it on any one for pretty much anything. > Section 294(a) of the Indian Penal Code, 1860

TRY& DIE Suicide is legal but attempts are not. So if you succeed, you die. And if you fail, you are arrested. > Section 309 of IPC

RICH CACHE If you stumble upon a piece of ‘treasure’, even Rs 10, and don’t report the fact, a 136-year-old law can put you behind bars. > The Indian Treasure Trove Act, 1878

WHERE’S OUDH? The kingdom of Oudh ceased to exist long back, along with its landowning taluqdars. A law on Oudh still exists although it became Agra province by 1908. > The Oudh Taluqdars Relief Act, 1870

TEMPBANK The preamble to the act governing the Reserve Bank of India confers on India’s central bank a “temporary” status, that continues even now. > Reserve Bank of India Act, 1934

COLONIAL HANGOVER Believe it or not, this 176-year-old live law is all about a group that can only sell its property to the East India Company. > The Bengal Bonded Warehouse Association Act, 1838

MALE CRIME Only married men can be punished for having an affair with another man’s wife. If he has sex with an unmarried woman, the law doesn’t consider it ‘adultery’. Women anyway don’t commit adultery, by this law. > Indian Penal Code of 1860, Section 497

SECRET WEAPON RTI activists beware, a law can put you and/or bureaucrats “sharing information” from government offices behind bars for up to 14 years—that too on mere suspicion. > The Official Secrets Act of 1923

UNMARRIED DAD Girls can get married at 18 but boys need to wait till age 21. No marriage, no fatherhood, you thought? Think again. The law allows boys to adopt children at age 18. > Indian Majority Act, 1875