A modern, free India. Sounds like an oxymoron given the British Raj Laws still in operation in the country and ironically being enforced when it suits the occasion or the prosecution. Prajwala Hegde has more.
For a country which prides itself on a futuristic outlook and growth, the Indian judiciary is bogged down by several archaic laws which have no relevance in modern India. While some are downright absurd -- like the one which punishes a man for adultery but allows the woman to go scot-free -- these laws can be used as tools to intimidate or cause fear in a supposedly free society.
Almost a decade after India became independent, the Law Commission of India in its fifth report on British statutes applicable in India, suggested that “our country could have a new set of legal Code and if a British statute is sought useful, it could be replaced by a corresponding Indian statute, having necessary provisions from the British law”. This was followed by scrapping of more than a thousand archaic laws; but even today, our judicial system is burdened with several British-era laws.
In 2014, the Law Commission recommended revoking 72 obsolete statutes, stating “there is an urgent need to ensure that the legal structures are responsive to challenges of changing times”. The Commission had stated that it would study 261 more statutes, in its interim report to Law minister Ravi Shankar Prasad.
The report added, “Those Appropriation Acts that are older than certain date, say 10 years, may be repealed. This itself would result in the repeal of more than 600 laws.” The report also quoted the example of Australia, wherein Appropriation Acts are repealed automatically as there is a ‘sunset clause’ attached. But how relevant this is to India, where cases drag on for decades, is debatable.
Of the 1,382 Acts recommended for repeal, only 415 were repealed since that year (2014).
Outdated laws hinder progress
Referring to the Law Commission Report (1), senior corporate lawyer and co-founder of Samvad Partners Siddharth Raja said, “Several laws recommended in this report are of no consequence. What remains is a smaller number of irrelevant legislations. We need to consider two important aspects: that these legal provisions were drafted in a less technologically advanced era, and the need for creative interpretations of those laws or provisions which are relevant today.”
While he feels that these laws have a level of continuity, if they are not updated, they can be misused and become a tool in the hands of bureaucrats. “They could be exploited and become a roadblock for the country’s development,” he says, giving the example of bitcoins and cryptocurrency, where “we are unable to fit into any law and there is no legislation”.
Dr T R Subramanya, former legal counsellor to the Kingdom of Bahrain, and dean, School of Legal Studies, CMR University, said, “Utility and applicability are not taken into consideration when laws are enacted. Even law practitioners are not aware of legislations in force. There are too many laws which are not used before any court within India. The government is seriously considering either putting an end to or repealing such legislations. Initially, the move got publicity, although later developments are not known,” he added.
Delhi-based senior advocate (regulatory jurisdiction) Malhotra recalls the days when his father had a licence to own a radio at home. “I remember the Indian Telegraph Act, 1885, was very feared. In fact, there should be a law which mandates that every now and then, archaic laws should be reviewed,” he said. Malhotra quotes an example of a law which requires telecom companies to have a licence and an encryption limit not beyond 34 bytes. “The DoT has placed a maximum limit of 40-bit on encryption that can be used by telecom companies in their system. But a Reserve Bank of India notification states that for net banking, the minimum limit for encryption is 254 bytes. This means that if you’re using net banking, you are violating the law. Even the level of encryption while using WhatsApp would be very high!”
According to a 2016 report by Human Rights Watch, our country has a long list of vague laws including sedition, criminal defamation, hate speech, hurting religious sentiments, contempt of court, the Official Secrets Act, and the Information Technology Act, which restrict free speech and are a blow to dissent. Activists, journalists and activists are more vulnerable, as the authorities often use these laws to silence them.
In 2002, journalist Iftikhar Gilani spent seven months in jail under the Official Secrets Act. Gilani was accused of possessing a supposedly classified document on the deployment of Indian troops in Jammu and Kashmir. The document was published by the Institute of Strategic Studies, a think-tank in Pakistan, and was available online and in libraries in New Delhi.
Several criminal defamation cases filed by the State of Tamil Nadu have been going on for years and require the accused, many of whom are journalists and editors, to appear in court every few weeks. The case is simply adjourned and a date for a new hearing is set at most of the hearings.
In March 2014, Uttar Pradesh authorities slapped sedition charges on more than 60 Kashmiri students who cheered for Pakistan during an India-Pakistan cricket match. That year in August, police in Kerala filed a sedition case against seven youths who refused to stand up for the national anthem in a cinema hall.
Laws that have outlived their purpose:
• The Registration of Foreigners’ Act, 1939
This law requires every foreigner staying in India for more than 180 days to report his/her entry, movement from one place to another and departure, to the authorities. Introduced by the British to regulate the entry and movement of foreigners in India.
• The Indian Post Office Act, 1898
Says only the federal government has the “exclusive privilege of conveying by post, from one place to another”, most letters. The exception: “Letters sent by a private friend in his way, journey or travel, to be delivered by him to the person to whom they are directed, without hire, reward or other profit or advantages for receiving, carrying or delivering them”.
• The Sarais Act, 1867
Deals with regulating public sarais (rest-houses), including duties of the manager and “removal of noxious vegetation” on the site, and also provide free drinking water to passers-by.
• Section 309 of IPC
Criminalized suicide and could land you in jail. The section is now effectively overturned by the Mental Health Care Bill. The government is also in process of deleting this section from the IPC.
• Drinking age
Since alcohol and related matters come under state governments, the drinking age varies from 18 in Goa to 25 in Maharashtra. The legal age for hard liquor like whiskey, vodka etc. is different from beer and wine. Effectively, you can get married before you can legally enjoy a drink in public.
• Section 377 IPC
Makes consensual sex between two people of the same sex illegal. However, after the recent Supreme Court judgment on Privacy, the days of this archaic law may be near its end.
(Prajwala Hegde is a Bengaluru-based freelance writer and a member of 101Reporters.com, a pan-India network of grassroots reporters)