The other day I received an email forward detailing approximately 1074 Enactments in force in India. It took almost an hour just to read the title of the Act and understand the subject to which it relates. The number is mind boggling when we realize that each Enactment has sections, sub sections, explanations, provisions and amendments.
Given the background, it is not surprising if one wakes up a fine morning and finds himself receiving a notice for violation of law, a law that he has never heard of!!! It is highly impossible for human mind to keep a track of all the enactments that apply to him in personal/ professional life. Even an expert may fail at times to comply with the laws of the land in such complex scenario.
On a lighter vein, an erstwhile judge, Justice Nani Palkhiwala mentioned that the law is made difficult for the layman to enable the survival of legal professionals. But today, the number of Enactments has increased to such a number, that it is impossible even for a legal professional to survive without the threat of non-compliance.
The constitutional ideology of India believes in passing an Enactment for each and every trivial issue, thus increasing Enactments in high numbers. These Enactments when combined with amendments, press notes, circulars, notifications and the specific terminology used in these contexts, make it highly impossible for human minds to comprehend.
The complicated Indian law further complicates the process of legal drafting thus making it impossible for a common man to either understand the law or draft a legal document. The skill of draftsmen lies in making his draft very clear with simple language restricting the use of complicated legal terms. More often than not, a new draft is just a variation of a previously prepared draft with minimal changes in the particulars section.
The Indian Constitution and law were drafted way back when India became independent. Though the constitution was “inspired” by the British law, it was well applicable to the erstwhile independent India. However, the scenario in the country changed over the past 60 years wherein India witnessed a transformation from agriculture based country to an industry based country and now to a technological base for the world.
In this scenario, most of the rules, regulations, laws and Enactments enforced on 26th January 1950 have become obsolete in every sense. There was an Enactment drafted in 1956 with a cross reference to a different Act. However, the Act in question is not available in black and white even with the law houses. In this case, the Enactment could not be put into practical use without actually referring to the Act.
In view of the same, there is an urgent need to make Indian Law more practical and sensible to cope with the current state of affairs. However, the law makers of the country turn a blind eye towards implementing new laws in the place of obsolete ones because it works best to support their political motives. As a result, an “Amendment Act” was passed whenever a law was found unsuitable for a particular situation.
Adding to the woes, implementing of the Acts passed by the Parliamentarians is an achievement in itself. The members on the Committees formed to draft the Bill are drawn from different classes who, in most cases lack the practical knowledge about the industrial trends and hence, in most cases; such drafts seem to be a write-up rather than a practical law. The drafts are passed by the Parliament and Bills once passed are thrust upon the users who end up cracking their brains to understand the brains behind the law.
When such a law comes into force, there is a general unrest in the industry and the lead Associations of the particular industry make a representation to the Law-makers who come up with Amendment, Rules or Clarifications adding up to the bulk of already existing law books in India.
On the other side, when such Act is passed, non-compliant parties pool in their resources to find a loophole in the law and ward off punishment as the law makers have to find how to deal with such a situation. Law Breakers are intelligent than Law Makers – True in every sense.
This is the very reason why most of the MNCs would insist on adopting their law subject to the jurisdiction of a court in their country in case of disputes before inking a deal with Indian companies particularly in the IT and ITES sectors, where India is a stalwart. This is a proof of non-belief that global majors shared about the Indian legal system when they have complete faith in manpower and the intellectual resources of India.
Instead, it would be more prudent for the law makers to repeal the existing law, and pass a totally new Enactment corresponding to practical requirements to the industry. Before passing a Bill, a draft can be circulated to the persons of high standing in the society like Associations who can foresee the difficulties at the proposal stage itself. The suggestions received from such wider circulation, can be incorporated in the draft and then passed by the Parliament. Such an approach will, to a large extent reduce the requirement of passing the Amendments, or issuing Departmental Clarifications or the like.
Also, it would be prudent to conduct a critical review of the existing laws in India and take steps towards reducing the Acts by repealing the obsolete ones, consolidating the similar ones, draft a single Act in place of numerous Amendments and so on.
A shorter list of Acts applicable to an individual or an entity will be easier to implement and restrict non-compliances and escapades from law. This would pave way for clearing all the pending cases in various Indian courts and a belief in the Indian legal system could be reinforced lest Indian legal system becomes a laughing stock in the days when India is shining in the global market.
