India must get rid of redundant colonial statutes
We must recognise that it is not enough to just repeal colonial laws. The very process of lawmaking must shed its colonial legacy
In his historic August 15 speech from the Red Fort on the 75th anniversary of India’s freedom, Prime Minister (PM) Narendra Modi called on the nation to remove any trace of a colonial mindset as part of his panch pran (five pledges). Yet we still have on our books British-era laws that contain regressive and unadulteratedly colonial statements such as this: “Whereas the general regulations and acts of government now in force in the Presidency of Bengal are not adapted to the uncivilised race of people called Sonthals… it is therefore expedient to remove from the operation of such laws [the districts] which are inhabited principally by that tribe.” This is not text from a pre-1947 district gazetteer of the Bengal Presidency, but the preamble of a statute that is technically still in force in India today.
After ruthlessly crushing the Santhal liberation struggle in 1855, the British enacted the Sonthal Parganas Act to exclude certain districts in modern-day Jharkhand, West Bengal, Bihar, and Odisha from the operation of laws administered by the East India Company. Instead, these districts were placed under the direct control of officers specially appointed by the lieutenant-governor of Bengal.
Gradually, even in the later stages of the colonial era, this Act lost all relevance. After Independence and the coming into force of the Constitution, the Sonthal Parganas Act is in direct conflict with the fundamental right to equality. According to the Supreme Court, such pre-constitutional laws are automatically inoperative, but they cannot be wiped off the statute book without Parliament enacting appropriate legislation to consign them to the dustbin of colonial history. The Santhal liberation struggle was led principally by the Murmu brothers - Sidhu and Kanhu. Such laws, inoperative though they may be, are blots on our statute book and must be erased.
A statute book is the compendium of all laws in force in a country. Some laws may be inoperative, some may have been struck down by the courts. But a law continues to remain on the record unless the legislature specifically repeals it. During this Azadi ka Amrit Mahotsav, when the PM has given the call to shed all traces of servitude and slavery, cleaning our statute book of colonial vestiges should be a priority.
As of today, over 250 central acts enacted in pre-Independence India continue to remain on the record. Some of these laws are used regularly and enforced, while others are just outdated or absurd. In broad terms, it is possible to group these laws into four categories – colonial relics, irrelevant, shell laws and obsolete provisions in still-relevant laws.
Colonial relics are laws enacted under the East India Company or the Raj that have become anachronistic today. Apart from the Sonthal Parganas Act, 1855, another bizarre example by today’s standards is the Indian Treasure Trove Act, 1878, which states that upon finding any item worth rupees 10 or more, a person must inform the nearest collector. The rationale for this was that under British law, the “treasure trove” was the property of the Crown. In 1996, recognising that this concept was outdated, the British abolished it and replaced it with the modern Treasure Act, 1996. Ironically, the Indian version continues to remain on our statute book.
Irrelevant laws are those enacted by the British in response to administrative situations which arose during a temporary period. Despite having served their purpose and time, many such laws continue to remain on the record. For instance, the Murshidabad Estate Administration Act, 1933 was enacted to appoint a manager on behalf of the Secretary of State to administer the estate of the Nawab Bahadur Amir ul-Omrah of Murshidabad. Obviously, this law is irrelevant today but continues to remain in statute books.
Shell laws are those where most substantive provisions have been done away with, but the statute itself has not been repealed. For instance, the Legal Practitioners Act, 1879 was enacted to lay out the basic requirements to qualify for the bar and practice as a lawyer. However, most substantive provisions of this act have subsequently been omitted. Despite it being an empty shell, this Act still remains.
Lastly, there are some colonial laws that hold relevance and are regularly used even today - the Indian Penal Code, 1860, the Indian Contract Act, 1872, the Indian Evidence Act, 1872, the Code of Civil Procedure, 1908, among others. These laws form integral parts of our legal system, but at the same time, contain some obsolete provisions. For example, several provisions in the Code of Civil Procedure require decrees or summons to be proclaimed by beating a drum. Even as such provisions continue to lose relevance, the Code of Civil Procedure itself remains essential to the functioning of India’s legal system. Efforts are underway by the government to modernise and update these laws.
In the recent past, multiple exercises were carried out to identify and repeal irrelevant pre-Independence laws. In 2014, the PM’s office constituted a committee to undertake an extensive study of central acts. It identified 332 pre-Independence laws and recommended the instant repeal of 73 of them. Similarly, the 20th Law Commission, in a series of four reports, identified 290 pre-Independence laws and recommended 134 for instant repeal. Since then, Parliament has enacted multiple acts to repeal obsolete laws. The six Repealing and Amending Acts of 2015, 2016, 2017, and 2019 have repealed a total of 76 pre-Independence laws.
Approximately a quarter of all central laws in force today were enacted by the British. This must change. All colonial relics, irrelevant laws, and shell laws can be repealed in one go. This is a relatively simple exercise undertaken by other countries that got independence from British rule. For example, through the landmark Statute Law Revision Act, 2007, the Republic of Ireland repealed all laws enacted prior to its independence in 1922.
Finally, we must recognise that it is not enough to just repeal colonial laws. The very process of lawmaking must shed its colonial legacy. Laws in colonial India were written in complex legalese, a language alien to the average Indian subject. The British are long gone, and we are citizens of the Republic of India now. But new laws continue to be written in dense legal language; as a result, it is difficult for citizens to claim their rights and perform their duties. Archaic expressions such as “notwithstanding”, “hereinunder” and “mutatis mutandis” have no place in 21st century India, especially during our amrit kaal and in the run-up to the 100th anniversary of our freedom.
Parameswaran Iyer is CEO, Niti Aayog. Aditya Bhattacharya provided research assistance.
The views expressed are personal
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