Bibek Debroy: Railway statute repeal

There is a legal principle or doctrine known as desuetude. Different people interpret it in different ways. Some take it to mean statutes aren't open-ended. They are enacted for a fixed period and die a natural death thereafter. In common with many common law countries, we don't have desuetude, not quite. In a strict legal sense, desuetude means statutes and legal principles become unenforceable through lapse of time and non-use. Indian court judgements have set two conditions before desuetude can be invoked. First, the statute has not been used for a long period. Second, a contrary practice has been followed for a long period. The second is difficult to establish. I doubt we will ever have a situation where a statute is enacted for a fixed period and dies a natural death thereafter. Instead, a statute can be enacted for a fixed period, with a proviso it will be reviewed after that period, justifying continuation or repeal. Legally, that's likely to be more acceptable. But as of now, old statutes continue, unless specifically identified for repeal. The Union government made such a perfunctory attempt in 1960/1961, a more substantive one in 2001/2002 and has undertaken an extremely substantive exercise since 2015. Kerala attempted a bit of this between 2002 and 2009. Rajasthan started a comprehensive exercise in 2015. Therefore, it probably makes us feel better if other countries have old statutes and take a long time to repeal them.

I was thrilled when I discovered Report No 19, a joint report by the UK and Scotland Law Commissions, leading to a Repeal Bill. You will find it at www.gov.uk/government/uploads/ system/uploads/attachment_data/file/228649/8330.pdf and the year is 2012. "The report recommends the repeal of enactments which have been identified, after detailed research and consultation, as being spent, obsolete, unnecessary or otherwise not now of practical utility. The proposals have been widely canvassed with the government departments and other bodies concerned, including the relevant authorities throughout Wales, Scotland and Northern Ireland. We have also consulted the relevant authorities in Ireland and India about the enactments that related to those countries." Look up the sections on Indian Railways. As everyone knows, initially, railways in India were set up through private companies. On Indian Railways, here is a list of what was repealed in 2012: Assam Railways and Trading Company's Act, 1897; Assam Railways and Trading Company's Act, 1910; Bengal and North Western Railway Company Limited Act, 1914; Bombay Baroda and Central India Railway Act, 1906; Bombay Baroda and Central India Railway Act, 1924; Bombay Baroda and Central India Railway Act, 1938; Bombay Baroda and Central India Railway Act, 1942; Calcutta and South-eastern Railway Act, 1857; East Indian Railway Act, 1849; East Indian Railway Company Act, 1853; East Indian Railway Act, 1855; East Indian Railway Company Act, 1856; East Indian Railway Company's Act, 1864; East Indian Railway Company Purchase Act, 1879; East Indian Railway Company Sinking Fund Act, 1892; East Indian Railway Company's Act, 1895; Eastern Bengal Railway Act, 1857; Eastern Bengal Railway Act, 1866; Eastern Bengal Railway Company Purchase Act, 1884; Great Indian Peninsula Railway Company Act, 1849; Great Indian Peninsula Railway Company Act, 1854; Great Indian Peninsula Railway Purchase Act, 1900; Great Indian Peninsula Railway Annuities Act, 1927; Madras Railway Act, 1853; Madras Railway Company Act, 1854; Madras Railway Act, 1855; Madras Railway Annuities Act, 1908; Madras Railway Annuities Act, 1922; Oude Railway Act, 1858; Scinde Railway Act, 1857; Scinde Railway Company's Amalgamation Act, 1869; Scinde, Punjaub and Delhi Railway Purchase Act, 1886; Great Southern of India Railway Act, 1858; Great Southern of India Railway Amendment Act, 1860; South Indian Railway Act, 1874; and South Indian Railway (Additional Powers) Act, 1888.

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I did not mention statutes from Ceylon. Nor did I mention several other old railway statutes from Britain, which were also repealed. Here is another quote from the Report. "The repeal proposals in this part of the report (and draft Bill) all relate to Indian railways and, more particularly, the legislation which facilitated the construction of various railway lines across the Indian subcontinent, and the subsequent maintenance of those railway undertakings and their gradual absorption into state control. The combination of gradual nationalisation and acquisition of state independence means that the individual railway companies have all now disappeared, and the UK legislation required for their formation and running has long been superseded. As a consequence, the 38 Acts relating to the various railway companies (and now recited in the draft Bill), spanning nearly a century of railway endeavour, are recommended for repeal as obsolete." The Appendix gives a list of organisations that were consulted before this Report and the Repeal Bill were drafted. On Indian Railways, other than purely British organisations, there is a mention of Indian High Commission, Railway Board and Assam Railways and Trading Company. That last mention puzzled me. I thought Assam Railways and Trading Company closed down in 1951. I could be wrong. Or perhaps what is meant is Assam Company, Assam Railways and Trading Company having become part of Assam Company. Assam Company's website doesn't clearly state whether Assam Railways and Trading Company still exists as an independent company.

The writer is a member of the National Institution for Transforming India Aayog.
The views are personal