How India Can Repeal Laws

India has been working to repeal several archaic and irrelevant laws, some of which date back a hundred years. The process of repealing a law can be done in two ways: by introducing a Bill to repeal the law or by promulgating an ordinance that must be replaced with a Bill within six months. According to Article 245 of the Indian Constitution, the Parliament has the power to not only make laws but also to repeal them. In recent years, there has been a push to remove outdated laws, address human rights concerns, and adapt to changing times and technologies. This includes the removal of colonial-era laws, the recognition of the right to privacy and data protection, and the adjustment of laws to align with international human rights standards.

The legislative process for repealing laws

India's legislative body has the power to repeal laws under Article 245 of the Indian Constitution. The government can repeal laws in two ways: by bringing a Bill to repeal the law or by promulgating an ordinance that will have to be replaced with a Bill within six months.

In 2021, Prime Minister Narendra Modi announced the repeal of three contentious farm laws, with the legislative process for the repeal to be completed in the Winter Session of Parliament. The Law Commission has also recommended the repeal of 77 archaic laws, some of which date back a hundred years. These include the Indian Law Reports Act of 1875, which states that no court can hear the report of any case unless specified under the State Government's authority, and the Madras Compulsory Labour Act of 1858, which initially had restrictions on labourers regarding any breach in the Presidency of Fort St.

The Delhi-based Centre for Civil Society has identified 100 such laws to be repealed, including the Foreign Recruiting Act, Act 4 of 1874, which gave the government the power to prevent the recruitment of Indians by a foreign state, and the Shore Nuisances (Bombay and Kolaba) Act, 1852, which regulates the removal of nuisances and encroachments below the high water mark.

Other outdated laws that India could consider repealing include a 145-year-old law regulating public sarais (rest houses), which includes provisions for the "removal of noxious vegetation" and providing free drinking water to passersby, and a law that effectively makes it illegal to fly kites and balloons without government clearance.

The power to repeal laws

In recent years, there has been a push to remove archaic and irrelevant laws from India's statute books. In 2021, Prime Minister Narendra Modi pledged to eliminate "useless laws," with the Law Commission recommending the repeal of 77 outdated laws, some dating back to World War II. Examples of such laws include the Indian Law Reports Act of 1875, which states that no court can hear a case report unless specified under the State Government's authority, and the Madras Compulsory Labour Act of 1858, which imposed restrictions on labourers.

The Foreign Recruiting Act, 1874, is another example of an archaic law that the Law Commission has recommended for repeal. This law granted the government the authority to prevent the recruitment of Indians by foreign states, potentially violating the constitutional guarantee of freedom of occupation under Article 19. Additionally, the Young Persons (Harmful Publications) Act, 1956, aimed to prevent the dissemination of certain publications deemed harmful to young persons, defined as those under 21 years of age, which differs from the majority age in other legislations.

In 2020, the Ministry of Home Affairs established a national committee to review India's criminal laws, and its recommendations formed the basis for several bills. However, the committee was criticised for its lack of civil society and gender representation, and its final report was never published. As a result, Amnesty International India has called for the immediate repeal of three new criminal laws, arguing that they would have debilitating consequences on freedom of expression, association, peaceful assembly, and fair trial rights.

The right to be forgotten

In India, the 'Right to be Forgotten' is considered a part of the right to privacy, which is a fundamental right granted to Indian citizens under Article 21 of the Constitution. This right allows individuals to have control over the use of their personal data by organisations and to withdraw consent for data use. It is often associated with the idea that everyone deserves a second chance and should not be judged by their past actions.

While there are no specific clauses in Indian laws governing the 'Right to be Forgotten', it has been recognised by the courts and is considered a work in progress. The Supreme Court of India has acknowledged that the 'Right to be Forgotten' is a facet of the 'Right to Privacy'. In a 2022 case, the court asked its registry to work out a mechanism to remove the digital footprints of a couple involved in a bitter marital dispute. The wife had moved a plea seeking the removal of her personal details from the internet.

The 'Right to be Forgotten' also intersects with the 'Right to Information' available under the Right to Information Act, 2005, which allows Indian citizens to access information under the control of public authorities. Balancing these two rights will be a challenge that the courts or the Personal Data Protection Act (once passed) will need to address.

Additionally, the Centre's 'Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021' provides a process to register a complaint regarding the exposure of personal information and its removal from the internet if the data was gathered without the individual's consent. The Digital Personal Data Protection Bill, 2022, also includes the concept of the 'Right to be Forgotten', giving individuals the right to correct and erase their personal data.

In conclusion, while the 'Right to be Forgotten' is not explicitly mentioned in Indian laws, it is recognised as a fundamental right under the right to privacy. The Indian courts and government are working towards implementing and balancing this right with other fundamental rights and freedoms.

The process of amending outdated laws

Identification of Outdated Laws: The first step is to identify which laws are outdated and in need of amendment or repeal. This task is often undertaken by legal experts, government committees, and civil society organisations. For example, in 2021, the Law Commission of India recommended the repeal of 77 archaic laws, some dating back a century.

Review and Analysis: Once potentially outdated laws are identified, a thorough review and analysis of their relevance and effectiveness in the present context is conducted. This involves examining the impact of the laws, how they are implemented, and whether they align with current societal values and human rights standards. In some cases, public consultations may be held to gather input from various stakeholders, including affected communities and legal experts.

Recommendations for Amendment or Repeal: Based on the review, recommendations are made to amend or repeal outdated laws. These recommendations may come from government committees, legal experts, or civil society organisations. For example, in 2024, Amnesty International called for the immediate repeal of three new criminal laws in India, arguing that they would have debilitating consequences on freedom of expression, association, and peaceful assembly.

Legislative Action: Ultimately, it is the responsibility of the Indian Parliament to amend or repeal laws. According to Article 245 of the Indian Constitution, the legislative body that has the power to make laws also has the power to repeal them. The government can introduce a Bill to amend or repeal a law, or it can promulgate an ordinance that will need to be replaced with a Bill within a specified timeframe.

Judicial Interpretation and Enforcement: The Indian judiciary also plays a crucial role in interpreting and enforcing laws. In some cases, the Supreme Court of India may strike down or suspend laws that it deems unconstitutional. For example, in 2022, the Supreme Court suspended sedition laws, only for them to be brought back through new provisions in other bills.

Ongoing Monitoring and Review: Law reform is an ongoing process. Even after a law is amended or repealed, it is essential to monitor the implementation of new laws and identify any further areas of improvement. This ensures that India's legal framework remains responsive to the needs and values of its diverse society.

The impact of repealing laws on human rights

India has been criticised for its "serious human rights concerns". Civil society groups face harassment, and government critics face intimidation and lawsuits. Freedom of speech has come under attack from the state and interest groups. Religious minorities, such as Muslims and Christians, have accused authorities of not doing enough to protect their rights.

The Indian Constitution provides for "the right to freedom of speech and expression" (Article 19(1) a). However, this right is subject to restrictions under subclause (2), which allows for freedom to be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence".

In 2021, the Law Commission recommended the repeal of 77 archaic laws, some of which date back to the Second World War and even the 1800s. These include the Indian Law Reports Act of 1875, which states that no court can hear the report of any case unless specified under the State Government's authority, and the Madras Compulsory Labour Act of 1858, which initially had restrictions on labourers regarding any breach in the Presidency of Fort St. Other laws recommended for repeal include the Foreign Recruiting Act, Act 4 of 1874, which gave the government the power to prevent the recruitment of Indians by a foreign state, and the Young Persons (Harmful Publications) Act, 1956, which was enacted to prevent the dissemination of certain publications deemed harmful to those under 21.

The impact of repealing these laws on human rights is significant. For example, the Prevention of Terrorism Act (POTA), which allowed for detention for up to six months before police were required to bring charges, was repealed in 2004. This removed a tool used to limit press freedom. Similarly, the repeal of the Criminal Tribes Act of 1871, which created a list of so-called "criminal tribes", was replaced by the Habitual Offenders Act (HOA) in 1952, which effectively created a new list. However, the tribes continue to face the consequences of the 'Prevention of Anti-Social Activity Act' (PASA), which adds to their everyday struggle as most live below the poverty line. The National Human Rights Commission and the United Nations' Committee on the Elimination of Racial Discrimination (CERD) have called for the repeal of PASA, as the former "criminalised" tribes continue to suffer oppression and social ostracisation.

In 2020, the Ministry of Home Affairs constituted a national committee to conduct a review of the criminal laws in India, which was criticised for its lack of civil society and gender representation. Its final report was never made public. In 2023, the Indian Ministry of Home Affairs introduced the BNS, BNSS and BSA bills to replace the 1860 Indian Penal Code, 1973 Code of Criminal Procedure, and 1872 Indian Evidence Act, respectively. These new laws have been criticised by Amnesty International for their potential to be used as a "pretext to violate the rights of all those who dare speak truth to power".

In March 2023, India engaged with the UN Human Rights Council UPR and accepted recommendations to repeal or amend laws to eliminate caste discrimination, guarantee the right to freedom of expression, and protect the rights of religious minorities. This included recommendations to bring the Foreign Contribution (Regulation) Act (FCRA), the Unlawful Activities (Prevention) Act (UAPA), and the laws on sedition and criminal defamation in line with international human rights standards.

The Indian government has also been urged to repeal the Armed Forces Special Powers Act (AFSPA), which authorises security forces to use deadly force to maintain law and order and grants them immunity from civilian prosecution for acts committed in regions under the AFSPA. Human rights organisations argue that the law violates the country's constitution.

The impact of repealing these laws on human rights would be significant, addressing issues of freedom of expression, arbitrary arrest and detention, and extrajudicial killings. It would also help to protect the rights of religious and caste minorities and hold security forces accountable for their actions.

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