Form & Reform

Public Order and Disorder

Bibek Debroy is chairman of the Prime Minister’s Economic Advisory Council
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The task of doing away with legislative deadwood

IN ADDITION TO the police, which we have talked about, the State List in the Seventh Schedule mentions ‘public order’. What is public order? As you would expect, there have been judgments on this, several of them. Let me quote from a 1966 judgment of the Supreme Court. ‘Does the expression “public order” take in every kind of disorder or only some? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.’ That’s clear. But let me ask a different question. What is ‘law and order’? It’s an expression we use all the time. What is ‘law’ and what is the difference between ‘law’ and ‘order’? The earliest example I have found of the two words being linked together is from July 4th, 1796, in an oration delivered in Boston to celebrate the anniversary of American Independence. John Lathrop Jr said, “Intrigue and Faction are the instruments which designing and artful men employ to produce the destruction of good government, and the consequent annihilation of order and of law.”

It is presumably difficult to impart precision to ‘order’. ‘Law’ is easier and is a system of rules. Those rules can be through statutes passed by legislatures (Union or state). They can be through common law precedents, though even in common law jurisdictions, law is increasingly codified. They can be through case law, as interpreted by courts. They can be through regulations passed by the executive (administrative law) through derived powers. For ‘order’, we may as well follow Humpty Dumpty and say it means just what we choose it to mean—neither more nor less. Order implies equilibrium and stability in society. In other words, order is about the law being enforced. It is more like rule of law. When we discussed the police, it had more of an ‘order’ angle. Let’s now focus on statutory law.

‘The more corrupt a state, the more numerous the laws.’ This quote is from the Roman historian, Publius Tacitus, from his Annals. But the translation is not quite correct. We indeed have a clause about a corrupt state and another one about plurality of laws. If you must have the Latin to be convinced, this is what Tacitus wrote: ‘Corruptissima re publica plurimae leges.’ There was no obvious causation in Tacitus. One could equally well translate this as, ‘The more numerous the laws, the more corrupt a state.’ However, the correlation is not in doubt. This is worth noting, because quite often, there is a presumption that the solution to every problem under the sun is to pass a piece of legislation. Once a statute has been passed, it does not die a natural death.

There is a legal doctrine known as ‘desuetude’. This means that if a statute (even a legal principle) is not used over a long period of time, it will be presumed to be dead, even if it has not been specifically repealed. Courts will no longer enforce it. This is in contrast to statutes where there is an in- built sunset clause. We have traditionally not had sunset clauses in our statutes. As part of the reform agenda, I think all statutes should have sunset clauses. What about desuetude? The Supreme Court has held two conditions must be satisfied for the doctrine of desuetude to be invoked. First, it has not been used for a long period. This is understandable and obvious. However, second, a contrary practice must have been followed over a long period. Note that the Supreme Court isn’t against invoking desuetude. For instance, in a 1995 case, it said, ‘Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the “dead letter”. We would think it would advance the cause of justice to accept the application of doctrine of desuetude in our country also.’ The problem is that second condition of having to prove contrary practice. It is simpler to build in sunset clauses.

Pending that, an old statute has to be specifically repealed. Here are a few examples of old statutes. The 1949 East Punjab Agricultural Pests, Diseases and Noxious Weeds Act applies to Delhi. According to this, if Delhi is invaded by locusts, the District Magistrate will announce the invasion by beating of drums and every able-bodied person has to cooperate in fighting locusts. There is the Aircraft Act of 1934. Stated simply, given definition of ‘aircraft’, one needs a government licence to fly kites (of the literal kind). The Sarais Act of 1867 enjoins sarai-keepers to give free drinks of waters to passersby and can be made applicable to hotels. About 200 statutes from the 19th century still exist on statute books, often with colonial overtones. It is surprising these weren’t examined and junked in 1950, when the Constitution came into effect. (There was a perfunctory attempt in 1960-61 and a more serious attempt in 2001-02.) It is only now that there has been a more systematic attempt.

In September 2014, the PMO set up the Ramanujam Committee to identify Central Government statutes ready for repeal. The committee gave us a database of 2,781 existing Union-level statutes. Of these, 380 were enacted between 1834 and 1949, before the Constitution came into being. The Ramanujam Committee identified 1,741 old statutes that were ready for repeal. In other words, 63 per cent of Central legislation could be repealed without affecting governance adversely. What’s happened to the 1,741? (a) There was the Repealing and Amending Act of 2015 (Act 17 of 2015). This amended some laws, but also repealed 35 old statutes. (b) There was the Repealing and Amending (Second) Act of 2015 (Act 19 of 2015). This too amended some laws, but also repealed 90 old statutes. (c) There was the Appropriation Acts (Repeal) Act of 2016 (Act 22 of 2016). This repealed 758 Appropriation Acts. (d) There was the Repealing and Amending Act of 2016 (Act 23 of 2016). This amended some laws, but also repealed 295 old statutes. 35 + 90 + 758 + 295 = 1,178. That’s how we get a count of almost 1,200, often cited. (e) There is a Repealing and Amending Bill 2017 pending in Parliament. There is a Second Repealing and Amending Bill 2017 pending in Parliament. When these are passed, you get a tally of 235 more old statutes. 1,178+235=1,413. Out of that aggregate of 1,741, we still have to account for 328. This takes us to the question of jurisdiction, so to speak.

As I just said, 380 statutes identified by the Ramanujam Committee in the database were enacted between 1834 and 1949, before the Constitution came into being. These may be ‘Central’ laws, but after the Constitution, the subject matter may have moved to states under Seventh Schedule. In at least two cases I know of (there may be more) in 1976 and 1995, the Supreme Court has held that in such cases amendment or repeal can only be done by state legislatures. Accordingly, the Ramanujam Committee identified 83 old statutes that could only be repealed by states. In addition to Ramanujam Committee, there were four reports (248 of September 2014, 249 of October 2014, 250 of October 2014 and 251 of November 2014) by the Law Commission on obsolete laws, ‘warranting immediate repeal’. Law Commission identified 62 statutes that needed to be repealed by States, in addition to 83 identified by Ramanujam Committee. 1,741 + 62 = 1,803. I should also add there are an identified (post 1977) 144 State Appropriation Acts that have to be repealed by states. This is in addition to the Ramanujam Committee and Law Commission. To the best of my knowledge, only a few states have done something about eliminating such deadwood. I mean recently. For example, Tamil Nadu did repeal old statutes in 1951 and 1952, but that’s not what I had in mind. Odisha did some repealing in 1976. In Kerala, 697 statutes were repealed through an ordinance in 2005 and 102 through a Repealing Act in 2016. In Rajasthan, 248 old statutes were repealed in 2015. In 2016, the Maharashtra Repealing Act junked 64 old statutes. Gujarat repealed old statutes four times, in 2000, 2004, 2005 and 2006, adding up to 85 statutes. Karnataka repealed 137 in 2002 and 143 in 2017, while Telengana repealed 18 in 2017. Uttar Pradesh has now started a repealing exercise.