Above: AISA activists raising slogans during their march to Parliament for the release of then JNUSU President Kanhaiya Kumar in New Delhi (file pic)/Photo:UNI
The Supreme Court has shot down in quick succession archaic British-enacted laws relating to gay relationships and adultery. Similar obsolete laws still exist in our statute books and close to 3,000 of them can be safely discarded or modified
By Neeraj Mishra
The police, under the existing Prisons Act, 1894, which remains in force in large parts of the country, are allowed to enforce “whipping…with a light rattan not less than half an inch in diameter on the buttocks” as a form of punishment for prison offences! Or take the Dramatic Performances Act, 1876, which sought to stem the growing tide of nationalism in politics and the arts. It was basically meant to curb freedom of expression by prohibiting stage and public performances which were “scandalous, defamatory or likely to excite disaffection”. The Act became a precursor to several such Acts in independent India which had the same intention—to curb freedom of expression. The original law still exists and can be enforced in 2018!
These are only a couple of examples from nearly 3,000 laws in central statute books and several hundred others enacted by states which have become obsolete in the present context and lost their relevance but continue to exist. They have been irrelevant for the past 70 years, but not much seems to have been done to address this issue except in Law Commission reports.
Since 1960, the Law Commission has been pointing out the futility of these laws to the law ministry, but with little response from the concerned government. One example: If a Hindu spouse converted to Christianity, the marriage could be dissolved legally. This law was enacted at a time when India was ruled by the British and Christian missionaries exerted great influence over the ruling class. An Act called the Converts’ Marriage Dissolution Act, 1866, was simply meant to ensure a converted person’s rights: conjugal as well as rights of the progeny. Interestingly, the Act precluded non-Hindu converts from Islam and Judaism. The converts to Christianity could file for restitution of conjugal rights or dissolution of marriage. Strangely, the law still exists in the statute books today.
That no cases have been brought under this Act in nearly half a century does not take away from the fact that it still exists. There is no certainty that such cases will not arise in newer tribal areas where people are embracing Christianity. Certain sections of the Act have since been superseded—like age of marriage—but other sections have not and courts will have to consider a case brought under the Act. The Law Commission’s list of obsolete laws or laws that need revision can be divided into three different groups:
- Complete repeal of certain Acts: A process which is simpler where Parliament or state legislative assemblies have to take a call.
- Reading down of existing sections of several Acts: The Acts themselves are required, like the IPC, but several sections may have lost relevance and can either be revoked or made redundant through judicial precedence, a more complex process.
- A host of provisions in several existing Acts which need to be modified and decriminalised.
The BJP government can legitimately claim to be concerned about it. Prime Minister Narendra Modi had promised wholesale junking “at the rate of one Act per day” during his election campaigns. He made a commitment to the electorate that for every new law passed, the government would repeal 10 redundant ones, and that in his first 100 days in office, he would undertake to repeal 100 old burdensome laws. His government tabled The Repealing and Amending Bill (2014) in the Lok Sabha, then again in 2015, 2016 and 2017 recommended revision of nearly 218 obsolete laws. In explaining the exercise, Law Minister Ravi Shankar Prasad committed that the exercise of weeding out antiquated laws would be a continuous process—one that would help de-clog India’s legal system.
Since 2014, the Law Commission has also released three reports with a list of suggestions on Acts which can be repealed immediately. The Law Commission has also identified 261 statutes for assessment and suitability for repeal. It will make its recommendations based on three criteria:
- First, the subject matter of the law in question is outdated, and a law is no longer needed to govern that subject.
- Second, the purpose of the law in question has been fulfilled and it is no longer needed.
- Third, there is a newer law or regulation governing the same subject matter.
The Modi government also formed the R Ramanujam Committee in 2014, which reported the existence of 2,781 laws in central statute books. Similar work has been done by the Centre for Civil Society in its research work titled “100 Laws Repeal Project”. It has listed exactly 100 Acts which can be repealed immediately along with the reasons for their redundancy. The Law Commission has acknowledged their work and included it in its recommendations.
Perhaps the most crucial and troublesome are some provisions of the IPC which need careful debate, but definitely lean towards reading down or repeal. Besides what the Supreme Court has already pronounced in the matter of gay rights and what constitutes adultery under Section 497, IPC, there are some other sections that have come under scrutiny, like Section 124A which deals with sedition. It reads: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in [India], shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. The expression ‘disaffection’ includes disloyalty and all feelings of enmity. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
Several legal commentators have argued against this law finding place in a free democracy, especially after the arrest and charging of several JNU students under it. “It was meant to control a subjugated population. The exceptions to the Section also explain that the intention now is not to suppress dissent but control communal and anti-national hatred,” says Jaiveer Singh, an advocate of the Delhi High Court.
There has been a fair amount of discussion over other provisions of the IPC like Section 498 under which the husband’s family can be arrested without bail in dowry cases. The Supreme Court has expressed its misgivings over such arrests. It also re-read the provisions relating to immediate arrest under the SC/ST Atrocities Act proclaiming that arrests could be made only after investigation. The Government had to bring in an ordinance to tackle issues arising out of the Supreme Court’s verdict.
There are more than 30 Acts today including the SC/ST Atrocities Act with penal provisions, including both jail and fine. In the changed world, imprisonment is being replaced by fines in most countries. But we continue to exist under archaic laws, whether by design or neglect.