India needs a National Repeal Law Day

Thursday, 30 November 2017
Parth J. Shah

India's Constitution, in its 68 years of existence, has been heralded as a "living document". The constituent assembly was emphatic in ensuring that future generations do not suffer from the absolutism of the old men from the 1950s. With more than 100 amendments, India has the longest Constitution in the world. While fostering these changes is one part of being a "living document", discarding the waste is the other critical part. The plethora of static, obsolete and often colonial laws make it seem, even after 70 years of independence, that the exiled colonial master is still in power.

The Prime Minister, as part of the campaign on "minimum government, maximum governance", put in motion the herculean task of repealing obsolete laws: 1,200 laws have already been axed and another 1,824 await their turn at the executioner's block. Is it enough? No! But it's certainly a start.

Now, the next step is to ensure that the focus of the campaign moves from the Centre to the state, as it is often the states that suffer the brunt of these colonial provincial laws. Some of these old Acts are minor irritants whereas others are downright ridiculous. More importantly, some of these laws are not just flawed, but legal disasters waiting to happen. For example, during the days of the Raj, the colonial government, abiding by its Victorian values, had taken up the responsibility to curb "immoral" trades such as soliciting and prostitution. Subsequently, the British government implemented several Acts in the Presidencies to criminalize the trade of the flesh. However, the government soon realized that the trade was not just a result of ignorance and poverty, but was also an institutionalized practice in certain communities. Thus, Acts were passed to protect the Devadasis and the Naik girls, resulting in the 1929 Naik Girls Protection Act. The Act grants the district magistrate special powers to regulate the movement of the Naik girls, detain them in settlements for unspecified periods, and investigate any member of the community if the district magistrate is 'of the opinion' that there is danger.

While the intention was certainly benevolent, the law was redundant, even in 1929. As Ganesh Shankar Vidyarthi, president of the UP Congress committee, pointed out—while the government had certainly been successful in "saving half of the girls of the Naik", the law had set the stage for increased trafficking of girls from the non-Naik communities as "demand" had hardly stemmed. That was not the only flaw though; in 1939, three Naik girls from Nainital filed an appeal in the Allahabad high court stating that they had been wrongfully branded as prostitutes, arguing that the district magistrate had ignored the Criminal Procedure Code, and instead had followed his own procedures. The case was dismissed since the senior advocate for the government argued that the Act ensured that the case was beyond the jurisdiction of the court. Today, the Naik Girls Protection Act, with all its flaws, remains within the legal framework of Uttar Pradesh even though a Central Act, the Immoral Traffic Prevention Act, 1986 (with a previous version enforced in 1958), provides for the regulation of soliciting and prostitution.

The Naik Girls Protection Act is not the only one of its kind: the Eunuchs Act of 1919 criminalizes the third gender in Telangana, the Karnataka Livestock Improvement Act, 1961 allows licensing officers to order the castration of "non-licensed" bulls, and the Wild Birds and Animals Act, 1912 imposes a hefty fine of Rs50 on the unlawful capture or sale of wildlife in Uttar Pradesh. This legacy of obsolete, archaic and, at times, unconstitutional laws must end.

It is a custom for the regional communities of our land to engage in fervent cleaning of their homes during culturally important occasions like the New Year, Eid, Diwali, Lohri or Onam. Building on this tradition, let us now pledge to clean the law books once a year as well, wherein the legislatures do the house cleaning! Since our "living" Constitution came into force on 26 November, it makes good sense to declare it the National Repeal Law Day. The observation of the day should encompass a convening of the lawmakers at the Centre, state legislatures and municipalities to update, amend and annul obsolete laws and regulations.

Additionally, the courts could adopt the practice of desuetude, a norm that laws that have not been used or enforced for a long period would lapse automatically. For future laws, we should add a "sunset clause" to ensure they do not one day turn into a nuisance for later generations. Better still would be to subject each law to a judicial or regulatory impact assessment (similar to the notion of an environmental impact assessment) wherein an extensive cost-benefit analysis is carried out for each law prior to its enactment. Such assessments would ensure that these laws are made in a manner that takes into account issues pertaining to their enforcement, and that the onus is not merely on enactment. This attention to the structure and drafting of laws, the very cornerstone of a democratic country as diverse as ours, would, as a consequence, also result in legislation that can be easily comprehended by a common man of limited legal wherewithal (an important component in the effective enforcement of laws)—thus transcending the superficial "paper tiger" image. It is only with strict adherence to such practices and annual hygiene checks that India can promote "ease of doing business" for its economy and "ease of living" for its society.

Parth J. Shah is the founder president of the Centre for Civil Society.