going-by-indias-archaic-laws-we-could-be-living-in-1940's
The Law Commission has been chipping away at the problem of
obsolete laws, recommending their immediate repeal. The first such
report was in September 2014 (Report No. 248) and that received some
media attention.
However, there have been three more reports since then –
second (Report No. 249, October 2014), third (Report No. 250, October
2014) and fourth (Report No. 251, November 2014). Unfortunately, those
didn’t receive the media attention they deserve. Let me focus on the
second, specifically on permanent ordinances recommended for repeal.
Unless you know, the expression ‘permanent ordinance’ is
liable to raise your eyebrows. How can an ordinance be permanent? Isn’t
it supposed to be for six months and no more? There is a legal
technicality involved.
Law and No Order
These war-time ordinances were enacted under the Government
of India Act, 1935, and were normally supposed to be for six months and
no more. But the six-month clause was temporarily suspended under the
India and Burma Emergency Provisions Act of 1940 and these ordinances
were changed to law under the Presidential Adaptation of Laws Order of
1950.
Sure, there was a legal challenge. However, the Supreme
Court held that since these ordinances were passed between 1940 and
1946, when the Emergency Provisions were in effect, the six-month clause
wasn’t applicable and these ordinances were like statutes. They would
remain until they were specifically repealed. There still are 11 such
war-time ordinances:
1) War Injuries Ordinance, 1941: This allows the central
government to announce relief schemes for wartime injuries. This
ordinance continued despite the War Injuries (Compensation Insurance)
Act of 1943 having rendered it superfluous.
2) Collective Fines Ordinance, 1942: This allows for
collective fines to be imposed on inhabitants of an area. Since there
are no safeguards against its misuse, it probably violates Articles 14,
20 and 21 of the Constitution. The Law Commission could find no instance
of this ordinance ever having been used.
3) Armed Forces (Special Powers) Ordinance, 1942: To
suppress the Quit India Movement, this conferred special powers on some
officers of the armed forces and were rendered dysfunctional by the
Armed Forces Special Powers Act of 1958.
4) Public Health (Emergency Provisions) Ordinance, 1944: In recent
times, no one has ever used this ordinance and there is duplication with
the Epidemic Diseases Act of 1897.
5) Criminal Law Amendment Ordinance, 1944: Of the 11, this
is one of the two that the Law Commission doesn’t think can be repealed
outright. It is used, together with the Prevention of Corruption Act,
1988, and will have to be amended before the ordinance can be repealed.
6) Secunderabad Marriage Validating Ordinance, 1945: This is
so hilarious that one should quote from the Law Commission Report. “It
was promulgated to validate a single marriage conducted by a certain
Reverend in Secunderabad in 1944. The Reverend mistakenly married a
Christian, but not an Indian Christian under the Indian Christian
Marriage Act, 1972.”
7) War Gratuities (Income Tax Exemption) Ordinance, 1945:
The only purpose of this ordinance was to exempt war-time gratuities
from payment of income tax.
8) Bank Notes (Declaration of Holdings) Ordinance, 1946: Under this,
by January 11, 1946, all banks and the government treasury would have to
inform the RBI about bank notes held by them. Despite the deadline,
this ordinance continued.
9) Criminal Law Amendment Ordinance, 1946: This has been
subsumed under the Prevention of Corruption Act. (There was a 1947
version of this statute too.)
10) Termination of War (Definition) Ordinance, 1946: This
ordinance determined the date on which World War II ended and,
therefore, the date on which war-time measures also ended.
11) Military Nursing Service Ordinance, 1943: This set up
the Indian Military Nursing Service, now part of the Armed Forces
Medical Services. The Army Act of 1950 was made applicable to medical
services through a gazette notification. But oddly, requisite amendments
were not made to the Army Act. This is the second ordinance that can
only be repealed after a related statute is amended.
Bizarre Ordinances
The legal loophole notwithstanding, it is bizarre that these
war-time ordinances continued permanently, despite Article 123 of the
Constitution and despite Supreme Court having held (the famous DC Wadhwa
case, 1987) that an ordinance should not continue beyond the stipulated
Constitutional timeline.
What’s stranger still is that till 2014, no one found it
necessary to scrutinise these ordinances and recommend their repeal.
It’s as bizarre as India’s budget papers still showing a pre-Partition
debt of Rs 300 crore due from Pakistan. (The agreed interest rate was 3%
and the sum was to be paid in 50 equal installments, beginning 1952.
The repayment didn’t happen and since 1948-49, the receipts budget
continues to show this sum, without adding the interest.)
To be fair, the RBI’s assets and liabilities were to be
divided. Because of this, since 1948 and right up to now, the State Bank
of Pakistan shows Rs (Pakistani) 560 crore due from India to Pakistan.
(This is the current figure, allowing for inflation, exchange rate
changes and asset appreciation. The original amount was Rs 49 crore.) As
with war-time ordinances, there must be legal technicalities.
Nonetheless, it is strange.
DISCLAIMER : Views expressed above are the author's own.
