Under the Indian Independence Act, 1947, India became a dominion with a sovereign legislative power to affect or repeal all the existing laws including the Government of India Act 1935 and the British statutes which were taught to have been extended to India. As per Section 6 of the Act, supreme legislative power was conferred on the legislature, thereby no British statute was to extend to the independent India of its own force. So there are majority of statutes which have become altogether obsolete and inapplicable to India in the present day. There are statutes which are obviously obsolete because of the historical reasons which necessitated their enactment no longer exist and there are statutes which confer certain privileges on Indian citizens and India as an erstwhile dependency of the British but do not impose any obligations.
Various Law commissions have recommended the repeal of certain old enactments which are useless at the present day, superseded by subsequent legislation, overtaken by the developments that have taken place since their passing or in obvious conflict with the constitution. The repeal of an obsolete Act should not be treated as mere technical exercise, rather it should be treated as revision to adopt a strong legal system. The Act of repeal should be as of adding more acts to the obsolete Act, to suit to the existing legal system.
Law Commission in its 148th report recommended certain objective to be kept in mind for repeal or retention of the statutes, they are (a) keeping the statute book in repair (b) introduction of order symmetry in the statute book, (c) providing easy access to legislation and (d) maintaining or restoring harmony in the statute book.
Lady Justica is the Roman Goddess of Justice originally known as Themis theGreek Goddess. In Greek Themis means ‘order’. Lady Goddess Justica is adorned with three things that are illustrative of the law: a sword, a scale and the blindfold. Our laws and legal systems are derived from her life stories and the three things on her symbolize the integral parts of any legal system. According to Roman and Greek mythology the sword depicts the coercive powers of a Court; the scales an objective standard by which competing claims are weighed; and the blindfold is illustrative of justice being delivered with impartiality, objectivity, without fear or favor and regardless of caste, creed, color, money, wealth or power.
Law shapes the economic, business and social fabric of the country. They are meantto govern society and behavior of its people while transacting with each other. It corrects and remedies wrongs, illegalities and crime being committed, through establishing laws and regulations, which are enforced through social and administrative institutions.
In a democratic set-up, the “Rule of law”, the three symbols of Lady Justice could be interpreted to symbolize the three important wings of a democratic legal system: The Legislature, The Executive and The Judiciary. The scale a depiction of the judiciary that weighs the scales to balance the interests of disputing parties. Makes law through binding precedents and judgments. The sword being representative of the legislative branch of the legal system, where law is made by promulgating legislations and statutes. And the blindfold is illustrative of the executive that enforces the law through regulations, as written by the legislature and interpreted by the judiciary and administrative compliances. And the Constitution being the supreme umbrella law that influences the formation of laws and the rights emanating, from therein. To have a robust legal system all the three wings need to maintain appropriate balances at all levels of society.
Law is the tool in the hands of the government to regulate the country and the Executive bureaucracies are commonly the source of rules and regulations. In a fast moving democratic society like India, regulations need to keep pace with the current business and societal milieu. Legislations need to be amended, updated and new regulations and legislations put in place to keep abreast with the changing scenario, so as to be appropriate and contextual. To bring about effective and efficient legal reforms, the amendments should clearly depend upon the requirements of the society. As the law balances the rights of various stakeholders of society, for example between lesser lessee, gender biases, competing companies etc. Ancient and archaic laws and legislations need to be relooked at as they have lost their meaning and relevancy in adynamic environment. Some of the old legislations have not been sufficiently invoked to develop new precedents thus become redundant, in the current business and social scenario. If left unaddressed this can cause serious economic and social hazards, tipping the scales in the wrong direction.
The impetus to develop new laws, to bring about legal reforms and amendments to legislations comes clearly from the political will. As India emerges from a virtual political and legal crisis, the political situation seems to be taking a new turn. The newly appointed Government’s manifesto is strong and intended to correct the wrongs done by the previous governments and to bring back some of India’s lost sheen. One of the key elements of BJP’s manifesto is judicial and legal reforms. While the former is being addressed by appointing well-respected and meritorious candidates at key legal positions, the latter needs urgent attention. In respect to legal reforms, the government should ensure that all regulations are fair and effective, so as to strike the right balance between protecting people’s rights, safety and freeing them from unnecessary bureaucracy.
It is considered, that excessive bureaucratic regulations stifles the growth of businesses, innovation, restricts investment and economic growth. It takes away the personal freedom and fairness, so as to hamper business development and anyform of innovation to thrive.
BJP’s initiatives’ are timely as it has recently directed its nodal ministries to review legislations relevant to their ministry and sift out 10 such legislations that either needs to be repealed or amended or reformed in any way. The aim being to harmonize and streamline laws at both Union and State levels, so that there is a level of discipline as to how the government regulates and creates a more predicable environment for business and society as a whole.
This is a strong message and an encouraging move in the right direction, by the Government. However, to put their manifesto in practice, so as to be apt and effective, an analysis needs to be made of the current situation, as to where and how legislations stand as per the current scenario. Accordingly adopt relevant and pertinent international best practices from advanced legal systems.
The aim should be to deregulate legislations and compliance procedures. As these are not only burdensome on the legal system but also adversely impact the economy and business growth. Over-regulation creates unnecessary red-tapism, paperwork, formalities and compliance procedures. Complying with them is burdensome as it costs businesses time and money. In turn it encourages corruption and hampers the overall growth and development of the Country. Courtesy India Code there is 2,500-3,000 Union statutes. The oldest are Bengal Districts Act and Bengal Indigo Contracts Act of 1836, and there are around 140 that go back to the 19th century and another 200 that predate Independence.
The aim should be to deregulate legislations and compliance procedures. As these are not only burdensome on the legal system but also adversely impact the economy and business growth. Over-regulation creates unnecessary red-tapism, paperwork, formalities and compliance procedures. Complying with them is burdensome as it costs businesses time and money. In turn it encourages corruption and hampers the overall growth and development of the Country. Courtesy India Code there is 2,500-3,000 Union statutes. The oldest are Bengal Districts Act and Bengal Indigo Contracts Act of 1836, and there are around 140 that go back to the 19th century and another 200 that predate Independence.
To put its diktat in practice, the deregulation committee needs to look at international best practices being followed by other advanced legal systems. By adopting pertinent laws, it would be possible to reduce the dampening effect of the executive and cut through the redtapism. For example “The U.K.’s Better Regulation Executive” has mandated legislative reforms, to ensure that laws andregulations in the UK are fair and effective. The actions being taken are:
Guidelines are published for all government policymakers to help them design better regulations or find other options instead of regulation. Some of the initiatives being taken by the UK government are “focus on enforcement” and “Red tape challenge”, which is to involve businesses, to get their views on how to improve the way regulations are enforced. The “red-tape challenge” entails asking businesses and the public as to which regulations they think could be removed or improved.
Prime Minister David Cameron announced that “this is the first government in modern history to reduce overall domestic regulation for business while in office. 800 regulations have already been abolished or simplified – with tens of thousands of pages of red tape still to face the chop.”
“Supporting business is a crucial part of our long term economic plan, creating jobs and security for all. The UK government’s moderation policy has found that:
“This Government has an absolute commitment to clearing away the barriers that act as a brake on growth for British SMEs. That is why, for example, we are not just reviewing whether there is still a case for each regulation, but now we are going to tackle how regulations are actually enforced as well. That commitment to lighten the load lies at the heart of our strategy for achieving economic transformation and recovery
“The Government knows that ill thought out regulations cost businesses time andmoney – which is why it devised the Red Tape Challenge. But sometimes the regulations are fine; it is inconsistent, inappropriate or overlapping enforcement that is the problem.
“Focus on Enforcement gives all businesses, but especially smaller and medium sized firms that often feel the disproportionate weight of inspection and compliance, the chance to make a real difference to the way regulators visit, inspect and advise business and enforce the law.”
Government will then pick up the best ideas for change, and look swiftly at how it can improve the experience of regulatory enforcement in those business areas.
The Better Regulation Executive has suggested the systematic incorporation of sunset and review clauses into new laws, so as to ensure that laws that get obsolete do not continue to lie in Statute books. A sunset clause results in the automatic repeal of a law after a specified period of time unless the law is expressly extended by Parliament. A review clause mandates formal periodic review, but does not result in automatic repeal. It generally determines whether the policy objects of the law are still relevant, and whether the law still best serves those objectives.
Recently Canada announced its Economic Action Plan 2014 to reduce regulatory hurdles for businesses through the Red Tape Reduction Action Plan. This plan confirms the Government’s commitment to eliminate unnecessary red tape from Canada’s regulatory system, while maintaining high standards for safety and protection.
The 2012–2013 Scorecard Report: Implementing the Red Tape Reduction Action Plan confirms that the Canadian Government has made tangible progress through the following initiatives:
To meet its objectives the Canadian government is completing the Administrative Burden Baseline Initiative to count the number of federal regulatory requirements on business. Canada has become the first country to introduce legislation for such a rule. The reforms are meant to bring a new discipline as to how the Government regulates, thus creating a more predictable environment for businesses and encourage entrepreneurship.
The regulatory measures aim to make the system more transparent, accountable, and predictable and maintains Annual Scorecard Reports to ensure continuity and predictability.
Now India is uniquely juxtaposition, as it has a thriving and fast growing business environment on one hand and on the other hand a legacy of deep-seated gender biases, joint family set-ups & family run businesses and diverse cultural differences. Drawing from the aforesaid best practices from UK & Canada, the BJP government to bring about deregulation needs to establish a process at various levels of society. First launch a deregulation committee with the starting point being to establish a database of legislations, second develop impact assessment processes, and third establish annual monitoring mechanisms. The committee should comprise of social and biasness representatives, that need to relook at the legislations that have been lying dormant and the sections, clauses that are to be amended and reformed. New legislations needs be promulgated wherever required, so as to be in line with the present times. Equal representation needs to be instituted at the societal and business level: representatives of people with social experiences is necessary to look at societal laws such as The Hindu Marriage Act, Law of succession etc. It is a must to have strong business representation from different industries to provide inputs on business laws such as Company Law, Contract law, FDI policies etc. and their most current requirements from a compliance perspective.
Directions to each ministry to identify the old laws in its departments for repeal. As recommended by various Law Commissions in their reports, the central acts which need to be repealed should be taken as prerogative over the state Acts because of the regulatory burden at the local level. The importance of the repeal or review needs to be recognized as statutorily at the central and state level. Systematic review clauses should be incorporated, so that after a particular time the automatic review will be necessitated.
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