1 Redundant Laws
(a) Natural reasons- the passage of time, change of situation, over-exploitation of loopholes.
- The Police Act, 1861, still requires a policeman to take off his cap or helmet before a member of royalty. A ridiculous provision that nobody has thought of removing so far.
The Indian Contract Act and the Specific Relief Act, 1963 have overlapping areas, leaving enough room for confusion. A person sacked from a job may decide to sue his employer under the Indian Contract Act, while the employer may take refuge under the Specific Relief Act.
Section 108 of the Customs Act and Section 171A of the Sea Customs Act are identical, offering a wide choice to both trigger-happy enforcement people and offenders looking for a loophole to slip through.
The Smugglers and Foreign Exchange Manipulators Act, 1976, a variant of COFEPOSA, whose sole objective is to forfeit illegally acquired properties of smugglers or forex manipulators and applies only to those convicted under the Sea Customs Act, 1878 and Customs Act, 1962.
(i) The Indian Telegraph Act, 1885 and the Indian Wireless Telegraph Act, 1933. Apart form being archaic to varying degrees, they also broadly overlap in jurisdiction and content. The word ‘telegraph’ embraces telephone and radio and gives the Center exclusive rights to license private parties to establish the telegraph for their own or private use. Most of these provisions have become outdated after the Telecom Policy of 1994 and Telecom Regulatory Authority of India Ordinance, 1996.
2 Redundant Laws
There are some laws, which are so detrimental to economic liberalization that without a wide-ranging and comprehensive change program, the entire reform process may collapse.
|One of these is the Agricultural and Ceiling Act, which permits non-resident Indians to invest in agriculture but does not permit absentee cultivation of holdings. By discouraging adoption of modern technology and scientific farming, the Act pressures the government to spend massive amounts to develop rural infrastructure.|
|Similarly, the Urban Land Ceiling Act keeps land prices artificially high, skews the property market and discourages investment flows.|
|Although domestic movement of agricultural goods is more or less free, the Essential Commodities Act, 1955, the Cotton Movement Control Order and Paddy Control Order, Milk and Milk Products Order and Agricultural Produce Regulated Market Act continue to exist, distorting the rural economy.|
|Take the Companies Act, 1956, one of the most voluminous pieces of legislation comprising over 650 sections and 15 Schedules. Despite amendment, there are several sections prescribing needless control and regulation in areas covering incorporation of companies, share capital, procedures, public issues, registration and remuneration which jar in today’s liberalized environment.|
|For instance, any company wishing to appoint more than 12 directors or give a loan to a director has to get approval from the Government. Section 259 of the Companies Act, 1956 provides;|
” Increase in number of directors to require Government sanction –
In the case of a public company or a private company, which is a subsidiary of a public company, any increase in the number of its directors, except-
(a) in the case of company which was in existence on the 21st day of July, 1951, and increase which was within the permissible maximum under its articles as in force on that date, and
(b) in the case of a company which came or may come into existence after that date, an increase which is within the permissible maximum under its articles as first registered, shall not have any effect unless approved by the Central Government and shall become void if, and in so far as, it is disapproved by that government:
[Provided that where such permissible maximum is twelve or less than twelve, no approval of the Central Government shall be required if the increase in the number of its directors does not make the total number of its directors more than twelve.] .”
Further Section 295 of the Companies Act, 1956 provides:
” Loans to directors, etc.-
Save as otherwise provided in sub-section (2) no company [hereinafter in this section referred to as “the lending company” [without obtaining the previous approval of the Central Government in that behalf shall, directly or indirectly,] make any loan to, or give any guarantee or provide any security in connection with a loan made by any other person to, or to any other person by,
Under the same Act, the making of bidis is not an industry, but the publication and printing department of Osmania University is. There is a law governing corporate donations to political parties, while most donations now come from non-corporate sources. The list could go on.
Under the Industrial Disputes Act of 1947, an employer can’t effect any change in working conditions, wages, compensatory allowances, work hours, rest intervals, new disciplinary rules, even raise or reduce the number of workers (except casual) without permission from the appropriate authority.
Section 9A of the Industrial Disputes Act of 1947, provides;
” Notice of change –
No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,-
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:Provided that no notice shall be required for effecting any such change-
(a) where the change is effected in pursuance of any [settlement or award]; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defense Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that my be notified in this behalf by the appropriate Government in the Official Gazette, apply. “
The complex Industrial law regime, with over 50 major legislations and an equal number of state laws, include the Workmen’s Compensation Act of 1923, Trade Unions Act of 1926, Minimum Wages Act of 1936, Factories Act of 1948 and Industrial Disputes Act of 1947.
Sections of this Industrial Disputes Act of 1947 make it difficult for employers to recast sick units through modernization and technology up-gradation and it restricts their right to make any change in service conditions while conciliation proceedings are on, thus encouraging trade unions to stall introduction of new technology.
3 Redundant Laws
There are even laws, which go against constitutional provisions.
For instance, one can prove that the economic reforms are actually against the Indian Constitution. Article 39 of the Directive Principles opposes polices that raise disparities in income and wealth. Therefore reforms, or for that matter, any policy statement, can be stayed on the ground that it’s widening the guilty between the rich and the poor.
Article 39 of the Constitution of India provides;
” Certain principles of policy to be followed by the State –
The State shall in particular, direct its policy towards securing-
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; “
The Companies Act seemingly violates section 139 A of the Constitution, which says only the Supreme Court has the power of transfer cases.
Article 139 A of the Constitution of India provides:
” Transfer of certain cases –
(1) Where case involving the same or sub-stantially the same question of law are pending before the Supreme Court and one or more High Court or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the case itself:
Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such question to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.]
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice transfer any case, appeal or other proceedings pending before any High Court to any other High Court.] “
Section 446 of the Companies Act, 1956 gives overriding powers to a winding up court (over any high court or the Supreme Court). It states that when a court orders the winding up of a company or appointment of a liquidator, all cases pending against the company in any court would be automatically transferred to the winding up court without the requirement of Supreme Court approval.
Section 446 of the Companies Act, 1956 provides;
” Suits stayed on winding up order –
When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Court and subject to such terms as the Court may impose.
(2) The Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company(including claims by or against any of its branches in India);
(c ) any application made under section 391 by or in respect of the company;
(d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the company;
whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960).
(3) Any suit or proceeding by or against the company which is pending in any Court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court.
(4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court.] “
4 Redundant Laws
Some laws also infringe on the fundamental rights of citizens.
Under section 14 of the Hindu Marriage Act, a couple cannot get a divorce within one year of the marriage, even if one of the parties is found to be insane or a warranted criminal. Even in case of divorce by mutual consent, Section 13B allows a lock-in period of one year before the grant of a divorce.
Section 14 of the Hindu Marriage Act provides:
” No petition for divorce to be presented within one year of marriage –
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce [unless at the date of the presentation of the petition one year has elapsed]
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interest of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].
Section 377 of the Indian Penal Code says whoever voluntarily has carnal intercourse “against the order of nature” can be imprisoned for life and fined. Which means homosexuals and lesbians are outlawed. And oral sex is illegal. All this, by laying down a behaviour code, violates the privacy of citizens.
Section 377 of the Indian Penal Code provides:
” Unnatural offences –
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life] or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Under Section 437 of the Indian Penal Code, a guilty woman can be released on a bail merely because she is a woman.
Section 437 of the Indian Penal Code provides:-
When bail may be taken in case of non-bailable offence.-
When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or demand without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life
such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions on a non-bailable and cognizable offence.
Provided that the Court may direct that a person referred to in clause(I) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
5 Redundant Laws
By refusing to change with the times, these laws also bar the ordinary citizen’s access to justice or even right to normal behavior.
Only rape is jailable offence, not sexual molestation.
The Lunacy Act takes a harmless epileptic to be the same as a certified lunatic.
Poor, homeless person are often harassed as the Vagrancy Act allows anyone who’s “loitering with intent” to be booked. (How do you prove that you had no “intent” as you loitered?)
Thanks to a piece of ridiculous legislation called the Prevention of Seditious Meeting Act, 1911, an independent India can still disallow a prisoner from wearing a khadi Gandhi Cap.
The Police (Incitement to Disaffection) Act, 1920, has been used just twice. Once against Lokmanya Tilak. The second time was in 1981-against the author of a pamphlet that commended the police for forming an association to demand better rights. (Striking textile mill workers had rioted and the cops had stayed way.)
6 Redundant Laws
There’s a lot of repetitive legislation in India, thanks to the Concurrent List which allows laws to exist at the Central as well as the State level separately.
The Indian Stamp Act or the General Court Fees Act, of which every state has individual versions. Each state also has its own civil procedure code apart from the Central Code.
The provisions of the Indian Electricity Act, 1910, Electricity (Supply Act), 1948, and the Indian Electricity Rules, 1956, prevent Central intervention at the state level, while also discouraging foreign/ private investment.
7 Redundant Laws
Even after law sees the light of day, it may remain on paper due to lack of clarity in applicability.
The Hire-Purchase Act of 1972, never metamorphosed into an Act. For a Bill to become an Act, it must be passed by both Houses of Parliament, but this was passed by only one House. Due to lack of interest in the Bill, it just lapsed. This has resulted in a piquant situation, buyers of vehicles on hire-purchase/bank loans can’t be prosecuted by the financier not the vehicle repossessed even if they default on repayment, because there’s no law for it. In such cases, the only recourse open to the financier is to send thugs to the defaulter. However, a wily defaulter can run rings round the lender by lodging dacoity cases against the lender, and claiming that he had a large amount of money lying in the car when it was seized.
8 Redundant Laws
The scrapping of the concurrent list will cut down on a number of areas where State legislation, often a carbon copy of the Central Act, exist only to confuse matters. It will also clearly demarcate areas for State governance and lay down uniform rules in the rest for all states to follow without question. For instance, the State of Rajasthan has always opposed provisions of the Narcotics, Drugs and Psychotropic Substances Act, as many of its communities ritually smoke marijuana at wedding ceremonies.
No one have a foreign coin collection work over #500. Even a visiting foreigner can’t mail a cheque abroad because the law doesn’t allow “sending currency instruments out of the country”. Or, an exporter can’t sell a consignment at a discount after it has reached the buyer. He must bring it back and declare it to the RBI afresh, an impossibility in the case of consignments of perishables or goods with low shelf life. Naturally, if you are an Agro exporter, you take big loss and shut up, or you break the law.
The Rent Control Act, which not only discourages private investment in real estate by disallowing market fixation of rent, it forbids landlords from evicting or taking any step against defaulting tenants. But the modified Delhi Rent Act, 1995, based on the model Central Act has been termed pro-landlord and evoked strong protests.
Out of the three Procedure Codes in India, the Indian Evidence Act was passed in 1850 and the Criminal Procedure Code (CrPC) and the Civil Procedure Code (CPC) were passed early this century. Honorifics like outdated, lengthy, complex come easily to mind. The main problem, however, is that they are completely silent on the maximum number of days by which a case must be settled. This ensures that cases drag on interminably. While a alleged offenders waste away behind bars. With few courts and that too bursting at the seams with pending litigation, a person arrested under the CrPC may actually spend his full term in jail waiting for trial even before he’s proved guilty.
In 1992, the Supreme Court had a backlog of 1.5 lakhs cases. And the lower courts have a backlog of around 20 million. Needless to say, such a system of justice distribution is loaded highly against the poor and the weak.
The poor conviction rates also substantiate the role of procedures in serving more as instruments of harassment than proving the effectiveness of law. Delhi Police has a conviction rate of 11 per cent. Prosecution for FERA violation, which account for most of the economic crimes lead to only 2 per cent convictions. And Mumbai Commissioner admit to only 118 convicted so far under COFEPOSA, a draconian piece of legislation passed 23 years ago.
What’s worse is that unlike other countries, India doesn’t have the practice of pare-trial consultations and conferences which can help fast settlement and weed out many cases before they reach court. The entire procedure is done in court, thereby stretching litigation time.