Finally with publication of 248th interim report dated 12th September 2014, of 20th Law Commission, the pruning of anarchic obsolete laws is on the horizon. The venture “Identification of Obsolete Laws” was taken up suo-motu by the 19th Law Commission , but could not be accomplished due to the expiry of conventional 3 year term adopted ever since 1834 the 1st Law Commissions of Lord Macaulay.
Thence the present, the 20th Law Commission under the chairmanship of Justice (Retd.) Ajit Prakash Shah carried forward the task and recommended the first list of 72 Acts fit to be shredded. The report on site lawcommissionofindia.nic.in is sort of peep into the deep – what they thought and did then. But the crude question is why we carried the load all along after setting forth a database of 1086 Central laws!? With 49 subject categories in Appendix – I, the August Body presented 253 laws in Appendix –II which still exist on the Statute Book despite having been recommended for repeal in the past reports.
With the task mammoth and ongoing process, more reports are to follow and with each step, the ball goes to the respective Legislative Houses, because, by virtue of Article 372(1) of the Constitution the ‘pre-independence laws’ continue to remain in force unless amended or repealed by a competent legislature. The Commission leaves no stone unturned to make its point clear that competency of legislature is to be decided as per Article 246 read with 7th Schedule with its three lists.
Thus irrespective of the fact whosoever made these Laws now these could be repealed only by the Legislature which would be competent to enact that law if it were to be newly enacted. And, quotes Hon’ble Apex Court in Kerala State Electricity Board v. The Indian Aluminum Co. Ltd. reported in AIR 1976 SC 1031 for the purpose;
Now an anecdote for thought:
In India we don’t recognize ‘legal doctrine of desuetude’ that permits lapse of statutes, or legal principles on account of long and continued non-use. English Law also does not recognize this doctrine. A curious situation accrued in Ashford v Thornton an English case reported in (1818) 106 ER 149
In 1817, one Abraham Thornton was charged with rape and murder of Mary Ashford but acquitted by the Jury. The poor thing was a pretty young lady of humble gardener who went to the party with lot of enthusiasm and excitement with managed attires in ‘La Cindrella Style’ and had danced with accused and left the party with him. Therefore, the public hue was heavily against the acquittal, Mary’s brother, William Ashford filed appeal Thornton was rearrested.
In a fully packed Kings Bench Thornton aged 22 yrs took a catchy turn, he claimed a right to trial by Battle in single combat against Appellant William Ashford. All odds against Appellant if he refuses he loses, if he doesn’t, again he loses – and that too with thrashing and pain till his last breath.
Don’t link this to R.R. Martin and his ‘Game of Thrones’ – it wasn’t even released yet, none of us was born then. In fact, Thrompton based his claim on a medieval usage that had never been formally repealed by Parliament
o when Thornton claimed his right to battle and took up the leather gauntlets, offered by the court Reader, apprehending the eminent fall, the appellant’s Counsel Nathaniel Clarke vehemently stressed – accused be not permitted to compound the offence of murder of sister by another murder of brother. The response of the Lord Chief Justice, Lord Ellenborough is worth a taste of obsolete laws
“It is the law of England, Mr. Clarke; we must not call it murder.”
However day was saved with adjournment to file further Affidavits, a couple of more dates and finally one after the other, in seriatim all 4 judges ruled in favour of accused Thornton,
Lord Ellenborough, again observing;
“…. , however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be, and therefore we must pronounce our judgement, that the battle must take place.”
But gave a choice to Ash-ford the appellant to let go Thornton “without a day” i.e. without an obligation to return to the Court. On next date 20th April 1818 Ash-ford gave up, Thornton won steered clear off the side door avoiding the Mob in front.
Next year in June 1819, trials by battles were formally abolished.
The anecdote is not without relevance this 1st list includes Madras Compulsory Labour Act 1858 that permitted the forced labour, and also includes Lepers Act 1898 that allowed police to arrest a pauper leper without warrant.
We expect the legislatures hearing it and doing the needful
sometime soon and we hope they find the best lawyer minds for the same.z