The ad hoc culling and editing of laws to respond to perceived problems of outdated legislation is likely to create more problems than it solves
The Bharatiya Janata Party manifesto identifies ‘reform [of] the legal system’ to make it more ‘accessible to the common man’ as a key policy objective for the new government. In this regard, the Prime Minister, at his first meeting with his Secretaries, called on them to identify 10 redundant or burdensome laws for repeal from each Ministry. While this is noteworthy as a statement of intent, it arguably misdiagnoses the problem and adopts an ad hoc approach, which is a recipe for legal chaos.
To be sure, too much of the academic and policy debate on the reform of statutory codes has focussed on two problems: first, desuetude (old and outdated laws) and second, over regulation (too many laws). However, a law’s vintage is not the primary basis for judging its utility. No student of the Indian legal system will fail to appreciate the care and attention with which the fundamental codes of the 19th Century were drafted in comparison with the shoddy work of the last two decades. Further, we cannot identify whether there is over regulation unless we can show that identical contexts are over determined by two or more legal rules. Moreover, it is not the volume of regulation but its contradictory effects that should be the focus. In this essay we propose that the primary and urgent problem for statutory reform is ‘unruly and inaccessible regulation’ and a coherent institutional response to this problem will effectively set the stage to tackle the problems of desuetude and over regulation as well. We set out a three-step programme of reform, motivated in part by the historical experience of compilation and consolidation of laws initiated in the U.S. in the late 1800s.
The first step is to create a central repository of all existing Central laws, and the rules and regulations of the various regulatory bodies and executive agencies. The India Code, published through annual volumes titled the ‘Acts of India’ and available online at indiacode.nic.in, provides access to Central laws in the chronological order of their enactment. The General Statutory Rules and Statutory Orders, which are published through the Gazette of India and available online at www.egazette.nic.in, provide access to subordinate legislation. However, the maintenance, availability and accessibility of these resources are seriously compromised, and there is no assurance that the online versions are authoritative statements of the law that may be relied upon in legal proceedings. The preliminary step should be to clean up this database, confirm its legal authority and ensure that all legislation, amendments and subordinate legislation are available together in one place and searchable by subject matter. Only if this activity is carried out expediently and with diligence and care will the next step become feasible, which, as we explain, is critical for the problems of desuetude and over regulation to make themselves visible.
Compilation by subject-matter
The next step is to create a subject-based compilation of all existing laws and regulations, akin to the United States Code (USCo) and the Code of Federal Regulations (CFR). These official subject-matter based compilation of federal laws and regulations are organised into 50 titles (or chapters) where all laws on a single subject are compiled in a separate title. Each title is a compilation of all the applicable statutes on that subject matter; further, individual laws, and sometimes, even individual sections in laws, are broken up and then re-arranged to make the subject-wise compilation more meaningful. Hence, if one is interested in labour law issues for example, all one needs to do is find the labour title (which happens to be Title 29 in the USCo and CFR) in order to find all the relevant legislation and rules. It is only if such an intuitive, subject-matter arrangement of all applicable laws and regulations is made that problems of desuetude or over regulation may be assessed in a structured and coherent fashion.
The first step is to create a central repository of all existing Central laws
The legal authority of such a subject-matter code must also be clear. There is not much point in undertaking this herculean task of rearranging existing laws by subject matter if the resultant rearrangement cannot be relied upon by the users of the law. So if the text in the subject-matter compilation is not legally authoritative and can be rebutted by showing that the wording in the underlying statute is different, this will defeat the purpose of compilation and only result in more litigation.
The last step is to convert the various subject-wise compilations into ‘law’ by re-enactment. Thereafter, each subject-wise compilation or title will constitute the single, comprehensive law on that subject matter and the underlying statutes are effectively repealed. In the USCo, some of the 50 titles called “positive law” titles (such as the famous Title 11 on bankruptcy) are ‘law’ in this sense. They (unlike the other titles, which are only compilations) are enacted by legislature, which repeal the existing laws on a certain subject and restate those existing laws in the form of a consolidated subject-matter title of the USCo.
The benefits of this type of consolidation are undeniable. For one, it replaces the 20 or more laws that are likely to be applicable on a given subject with one comprehensive code. This process intrinsically overcomes desuetude and overregulation. Significantly, unlike an ad hoc repeal exercise, this type of consolidation will resolve inconsistent laws, clarify ambiguities in the law on a particular subject, and restate the law subject using a consistent drafting style and consistent word choices while leaving no ‘gaps’ in the law.
Need of the hour
The reform of statutory codes in India is an idea whose time has arrived. The popular perception of the Indian legal system is now couched in the language of ridicule and humour rather than respect and inspiration. However, the ad hoc culling and editing of laws to respond to perceived problems of desuetude and over regulation is likely to create more problems than it solves. A national project to reform the statutory codes through the steps outlined above is our best hope to put the legal system reform on well-grounded and sustainable foundations. A cursory review of the USCo and the CFR confirms that this calls for intellectual labour of herculean proportions that is way beyond the human resources available in the Law Ministry or the Law Commission. The creation of a new institutional ecosystem drawing on technological and intellectual resources beyond the government is recommended and would be a concrete sign that this government is serious in its intent on effective and meaningful legal system reform.
(Sudhir Krishnaswamy is professor of law, Azim Premji University and visiting Dr Ambedkar Chair professor of Indian Constitutional Law, Columbia University and Sindhu K. Sivakumar is Graduate Fellow, Azim Premji University.)