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legal reform



Hi Puneet: Although this is not the immediate topic at hand, this is
very crucial for India. I am posting an article from Times of India.
Even if it's not directly posted to IP, at least ask Nikhil to put it
up on the web. We can get it out when we need it.

regards,

Prem.

Admin note: Prem, since the topics relevance is very much IP's charter,
here's your message for all to read.

Puneet
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Time to Outlaw Antiquated Laws 

By SANGITA P MENON-MALHAN

FORMER chairman of the Law Commission Mr D A Desai, in his
book Law Reforms in India, described the history of legal reform in the
country as the struggle of man against power, of memory over
forgetfulness. Even while using the ominous tone of Milan Kundera,
Mr Desai made a pertinent point about the attitude towards legal
reforms in the country. Initiatives to revise, scrap or update laws which
have outlived their utility have rarely engaged the attention of
Parliament. Successive Lok Sabhas have devoted little time to the
vital subject.

Indian laws are part of its colonial legacy, based as they are on the
English statute. Among the many defects of English statute laws is
that they are long, with too much detail. Often, they are known to
approach the subject matter of the law indirectly. They have too many
provisions and references to other Acts. Above all, they contain
illogical clauses. Recently, Prime Minister Atal Bihari Vajpayee saw for
himself the antiquated state of our laws when on a mission to register
a trust, he was asked to put his thumb impression on the document,
since, according to rules, a signature was not good enough.

Irrelevent Laws 

That framework has continued since in India there is no provision of
desuetude: laws remain on the statute book unless repealed. Take
the Ganges Toll Act, 1867 wherein the government could levy fees on
the stretch of the Ganges between Allahabad and Danapore. This
provision overlapped with the National Waterways Act passed by
Parliament in 1982. The result was dual taxation. Or the Bengal
District Act, 1836, believed to be the oldest act in the country, which
provided that the state could create as many districts as it wanted.

In the absence of concerted moves to reform the legal structure, old
and irrelevant laws have continued to proliferate over the years. There
are over 3,000 laws of the Centre alone. And even more in the states.
At least 10,000 Acts of Parliament are in practice. The citizen is
expected to know the law. A default in observing it would invite
punishment. But how does one observe a law that has lost its
relevance ? 

Without legislative action to prune laws, the system cannot keep
pace with changing needs. A taskforce of the Confederation of Indian
Industry, for instance, has pointed out how the legal system has not
evolved with the expansion in industrial activity. Economic reform and
liberalisation have necessitated far-reaching changes in several laws.

There are instances of one set of laws overlapping with another, or
even contradicting it. Anomalies like these leave room to interpret laws
to suit certain interests. What's more, they often make certain legal
provisions seemridiculous. The answer lies in having fewer laws and
better enforcement. 

It is not as if other countries do not have dysfuntional legislation. Cabs
in London are still governed by the Hackneyed Carriage Act which
requires them to carry bundles of hay to feed horses. But India far
exceeds any parameters of obsolescence. With an estimated 25
million cases pending in courts countrywide, archaic laws can only
clog the process of speedy dispute disposal. In this context, the
initiative in recent years to set up committees to review antiquated
laws and draft new ones is welcome. The Vajpayee government, too,
has made it clear that it will follow up on the efforts of its predecessors
in this regard.

No Easy Solution 

But there are no easy solutions to a task so gigantic. It will require
unifying and harmonising the statute and simplifying procedures while
reducing government intervention. Despite the urgency of reviewing
laws, the exercise has to be conducted judiciously. Efforts made
elsewhere in the past, in England for instance, to undertake a grand
review of laws had to be abandoned midway. The exercise had
grown far too unwieldy.

Not all laws requiring review deserve to be scrapped. Some might
only need to be modified and survive with minor changes. Others
might require more than that to be updated. Only the redundant and
antiquated ones must go. The Law Commission has done plenty of
groundwork on reviewing laws. The United Nations' `Project Large'
undertook an independent exercise on review of laws and made
specific recommendations on provisions. All these could form the basis
for a review.

Various Central ministries have already a list of laws pertaining to their
respective departments that require review. The revamp should
proceed from here with adequate support from the legislature and the
executive.




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