Treasure the past then move on: Time to scrap obsolete laws

What is law? This is the first question that is asked to students on their entry into law school. Once we manage to move past that, the next question is: “What is the purpose for which any law is enforced?” The answer to this question may differ from aspects such as need or requirement to prevent some mischief or to cater to a potential conflict area. Laws are given effect to in an attempt to address any or all grievances that a citizen may have. As the largest democracy in the world with an ever-increasing population, India has an affinity to enacting legislation for potentially any and every issue that a citizen may be faced with. While this reflects well in terms of the ease with which we are able to give effect to law coupled with the fact that a concerted effort is being undertaken to address the grievances of the masses, yet this may be rendered nugatory in certain circumstances. These circumstances would include cases where the law has been rendered obsolete or the purpose for which the legislation was enacted has been achieved or simply that the said law has become repetitive. It is in cases like these where this legislation ought to be repealed. This is where one is in dire straits. As a nation, we are known to enact laws as quick as a wink but we wait 150 years to repeal laws, which have been rendered obsolete. To this point, the efforts of the present government to repeal obsolete laws cannot be ignored. The Narendra Modi government can be attributed with repealing over 250 laws, which had become obsolete or redundant. While the government’s effort cannot be undermined, the target has not yet been achieved; there continue to be laws in effect today, which ought not to be in operation.  Take for example the East Punjab Agricultural Pests, Diseases and Noxious Weeds Act, 1949. This Act has been enacted for the purpose of providing for the prevention of the introduction, spread or reappearance of pests, plant diseases and noxious weeds injurious to crops, plants or trees and extends to the State of Haryana. While this Act may have been enacted out of genuine concern with respect to pests and noxious weeds coupled with their ability to injure plants, animals and citizens alike, some provisions of this Act are in stark contravention to the procedure established by law and have not yet been amended or repealed. Section 4 of the said Act leaves room for conflict. 

Section 4 of the Act reads as follows:  Duties of occupier on the issue of a notification under section 3. -

(1) On the issue of a notification under section 3, every occupier within the notified area shall be bound to carry out the preventive or remedial measures mentioned in such notification.

[(2) Notwithstanding anything contained in this Act, in the event of any area being invaded, or in danger of an invasion, by locusts, the Collector of the district or other officer authorised by him in this behalf may call upon any male person not below the age of 14 years resident in the district to render all possible assistance in carrying out preventive or remedial measures and in the destruction of locusts];

Provided as follows:-

(i) No person who is by virtue of old age or any physical disability incapable of rendering assistance or who lives at a distance of more than five miles from the place where his presence is required, shall be called upon to render any such assistance;

(ii) it shall not be necessary to notify every person individually for his services, and a proclamation by beat of drum or other customary mode in the village or locality shall be deemed sufficient notice to all affected persons residing in that village or locality.

(3) Any person who fails to render the assistance required of him under sub- section (2) shall, on conviction [-] be punishable with fine which may extend to fifty rupees or in default to simple imprisonment for a period not exceeding ten days, and the offence shall be tried summarily as provided in section 260 of the Code of Criminal Procedure, 1898 (V of 1908).

The first contention herein is that an individual cannot be compelled to render assistance, even in the interest of the public.  One cannot enforce a legal obligation in a case, which would ideally have involved community expectation. Citizens of India are not bound by any law whereby duty to act can be enforceable and therefore, any compulsion of such nature stands in contravention to the rights given to the citizens. Secondly, the third clause to this section wherein a punishment of ten days or fine is imposed on an individual for failure to act in conformity with the provision of Section 4(2) is untenable in law. This is simply because the provision in itself is vague and open to interpretation. The interpretation of “fails to render the assistance required of him”is vague and relative in nature. What may appear as constructive assistance to one may not appear to be so to another. Merely because of the degree of relativity involved, shall a person be subjected to fine and or imprisonment? The discretion to interpret the above-mentioned element rests entirely with the authorities and cannot be given effect to in a clandestine or arbitrary manner. No matter how small the quantum of sentence involved is with respect to this provision, it is open to mischief and ought to have been amended or repealed.  The fundamental purpose of the enactment of any law is to reduce the difficulty being faced by the citizens and not add to it. When any law is capable of wrecking havoc or promoting mischief, it ought to be done away with. Such a law has no scope in a system of law that is being improved and amended on practically a daily basis. 

Another example of such an obsolete law would be the provisions of the Aircrafts Act, 1934. For the purpose of this Act, an ‘aircraft’ includes within its ambit a kite. Interestingly, the Act penalizes flying that is likely to cause danger and imposes penalty along with imprisonment for the same. How is this put into effect in a country like India where not only do we, as a nation, come together to fly kites on Independence Day but also organize over 200 kite flying festivals in Gujarat alone.  While it is agreeable that things may get out of control and there is a need to even regularize something like kite flying to avoid public injury, yet the solution to this is not by incorporating such a provision in respect of kites within the Aircrafts Act, 1934. Similar examples of legislations that were enacted with a specific purpose and with the passage of time/attainment of purpose have been rendered obsolete include the Dramatic Performances Act, 1876, the Young Persons (Harmful Publications) Act, 1956 amongst others. 

Emanating from the 248th Law Commission Report to the 251stReport, the Government has systemically outdated laws, which have served their purpose or are no longer applicable. Yet, we have a long way to go. A consistent and diligent effort has to be made to ensure that certain laws are prevented from creating mischief in society. Throughout our childhood, we are taught that it is quality that matters over quantity. It is time we imbibe this lesson and move in a direction where sound and necessary legislation is enacted. Existing laws need to be verified in order to ensure their purpose and applicability meet the needs of the society and outdated laws should be done away with. The Narendra Modi led government needs to take its Swach Bharat Abhiyaan one step further and clean up laws that are no longer needed. This is to ensure that citizens are not required to pay heed to legislation which effectively have no direct bearing to their lives. It is time we stop being a country that is over-legislated and be one that is properly governed.

 

Harpreet Kalsi 
on 06 March 2019
Published in Others
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