Is our archaic legal system plaguing the country?

Unfortunately after one big effort in 2001, when several redundant laws were struck off the books, no government has shown interest for cleaning up the legal system in India

There are many flaws in the Indian laws that urgently need examination and reform said Dr Bibek Debroy speaking at a lecture organised by Moneylife Foundation in Mumbai. While many countries have absurd laws that remain in the statute book, they are rarely used to harass people, like they are in India. He also said that after one big effort in 2001, when several redundant laws were struck off the books, no government has been interested in any significant effort at cleaning up the legal system.

Dr Debroy’s lecture was a series of interesting anecdotes that he later connected up to show how the Indian legal reform process works – or doesn’t. Lets skim through these anecdotes briefly. Dr Debroy’s lecture was a series of interesting anecdotes that he later connected up to show how the Indian legal reform process works – or doesn’t. Lets skim through these anecdotes briefly.

1) Project LARGE :

In 1993, Dr Debroy, who had recently resigned from his job as a professor, was asked by the government to head the Legal Adjustments and Reforms for Globalising the Economy (LARGE) project, which involved an elaborate study and examination of the issues related to legal reforms. The history of how the project came about was interesting – it started with a letter by an eminent person to increase his daily foreign exchange allowance available for overseas travel under the Foreign Exchange Regulation Act (FERA). As the letter and its file moved up the hierarchy at the finance ministry, someone wrote that the allowance be increased for all Indians, when it moved even higher, there was a note to say that the FERA act itself needs to be scrapped and finally, when the file reached the finance minister (then Dr Manmohan Singh), he suggested that a study be commissioned to examine all the laws that needed to be brought in line with a liberalised economy.

The project lasted for four years and resulted in a publication of ten books and thirty papers. Nothing happened for the next ten years, but Dr Debroy says, with a new government in place, a lot of interest has resurfaced in the field of legal reforms.

2. Longest Standing Dispute in India?

When Dr Debroy started pondering over this question, none of his lawyer friends seemed to have an answer. Eventually, he found a case, State vs Basak at the Calcutta High Court. The last hearing for this case was held in 1950. He later discovered from the Guinness Book of World Records that India has a dubious distinction of having the longest running legal dispute. It pertained to a village called Ambegaon near Pune in Maharashtra and, as per the record, had begun in the year 1205 and was concluded in 1966 -- a span of 761 years! When Dr Debroy wrote an article about this, he received a pile of photocopied documents from one Narsimha Reddy. These were court records pertaining to the case, which showed that although the dispute may have been over 760 years old, a case was filed only in January 1964 and the judgement was passed in December 1966. What prompted Mr Reddy to undertake this tedious job? It turned out that Mr Reddy wanted to prove that he, in fact, held the record for the longest running dispute in India, which was a few decades old. However, the Guinness book had stopped recognising this as a category especially if it pertained to cases from India. So Mr Reddy had to be satisfied with a mention in the Limca Book of World Records!

3.Vintage Government Posts

In the 1980s, the Tamil Nadu Government set up an Administrative Reforms Commission to identify and abolish surplus posts in the Government. This exercise led to the discovery of two unknown categories --LBK and LBA – because people under this category were now pensioners. On investigation it was discovered that the story went back to 1936 when Lord Linlithgow was the chairman of the Agricultural Reforms Commission. One of the Commission's recommendations was to improve the quality of Indian cattle by breeding them with foreign bulls. The recommendation was ignored, until Lord Linlithgow went on to become the Viceroy of India. Suddenly, some official decided it would be a good idea to carry favour by implementing this recommendation from the Agricultural Reforms Commission. As a result of this, the posts of LBK and LBA were created and they stood for Linlithgow's Bull Keeper and Linlithgow's Bull Assistant. These posts were abolished in 1983.

4. Dead Man's Association!

The travails of Lal Bihari, a school teacher from Uttar Pradesh (UP) to prove that he was alive was another interesting anecdote. The problem started when Lal Bihari’s uncle bribed a tehsildar to declare Lal Bihari dead in order to slash his claim to their ancestral land. Lal Bihari discovered that he had to fight a valiant battle in order to be declared alive – it included writing to the Prime Minister, trying to get himself arrested by throwing stones at the police station, standing for elections – but nothing worked. But in the process, Lal Bihari discovered that there were 25,000 such ‘dead men’ wandering around in UP alone! He vowed to take them all along and formed a 'Mritak Sangh' or the 'Dead Man's Association'.

The efforts of Mr Bihari, though absolutely ignored in India, were recognised by Harvard University, which decided to bestow upon him the Ignoble Peace Price. But Lal Bihari couldn't go to receive the award personally because he had no passport, and couldn’t get a visa. After long years of effort, Lal Bihari was finally declared alive but nobody knows the fate of the other 24,999 ‘dead’ persons in UP.

5. Surjeet Singh Barnala in Jail?

At the height of the Khalistan militancy, Surjeet Singh Barnala, the then chief minister of Punjab, wanted a break and decided to ditch his security and vanish for a while. When he was wandering on the streets of Allahabad in UP, he was arrested under Sec 109 of the Criminal Procedure Code (CrPC). This allows people to be picked up on “suspicion”. People are usually released when the produce valid identification or someone vouches for them. But Barnala was incognito, so he ended up in jail and was harassed. Eventually, he dropped his disguise and was finally released. He even wrote a book called 'Escape to something' on his experiences of those days ten days.

Knitting these five anecdotes, Dr Debroy went on to throw light on why the legal systems tends to be dysfunctional and nothing seems to change.

Dr Debroy said, although India is a common law country, much of our law has been codified. We have around 2,000-2,500 central statutes and there are thousands of statutes enacted by every state – but nobody has any idea about their number, because only two states have attempted a compilation. Consequently, an oft quoted estimate of state statutes is 25,000 – but this, Dr Debroy points out, was his simple guesstimate based on the number of laws in one state multiplied by the number of states.

The earliest laws in India can be traced back to 1836. About 150 laws go back to the nineteenth century and about 200 laws pre-date independence. An examination and repeal of the redundant and old laws was attempted in 1961, which did not produce any satisfactory result. After that, this was taken up in 2001 and then forgotten again.

In addition, there is the vast body of administrative laws, including government orders, decrees, rules, regulations and circulars, which have their own idiosyncrasies. The Factories Act of 1948, for instance, still mandates a red bucket filled with sand, which hasn’t made way for fire extinguishers. It also requires walls to be ‘white washed’ and a better paint would be a violation. These old laws are used as a tool for harassment.

Dr Debroy gave the example of the Sarais Act, 1867. It requires Sarai keepers (roadside drinking shops) to offer free drinking water to the passers by and exists even today. A few years ago, the Act was cited to prosecute a five star hotel, which refused free water.

Another problem in our laws is ambiguity in the definition and interpretation across statutes. For example, the definition of 'wages', 'pension' and even 'child' is different in different statutes. This whole system of legislations needs to be unified and harmonised.

On Pending Disputes:

According to Dr Debroy, two-third of all pending disputes (around 40 million cases are concentrated in lower courts). After amendments to the Civil Procedure Court (CPC) in 2001-2002, the civil side suffers less than the criminal side, he said.

Winding up the session on an optimistic note, Dr Debroy hoped that the new government will shift its focus on the agenda of legal reform.