Courting trouble: Archaic laws passed during colonial times continue to clog our statutes books

By Puja Changoiwala

They are the reason why you can be picked up from a pub, and arrested for drinking without a permit. They are the reason why you can be booked for hugging a person of the opposite sex, or for donning a Bob Marley t-shirt, or even for flying a kite. And they are also the reason why homosexuality still remains a crime in our country, and why Jawaharlal Nehru University’s (JNU) Kanhaiya Kumar was arrested recently. "They" are the ancient, obsolete laws, passed mostly under the British Empire, but which continue to clog our books of statute. They may have lost their relevance over the intervening decades, but not their prevalence.

Addressing the issue of archaic laws still restricting our freedoms, Chief Justice of Allahabad High Court DY Chandrachud, while delivering the welcome speech at a function to mark the 150th anniversary of the High Court earlier this week, called on judges to use their powers wisely,considering that many laws were laid down ages ago to deal with challenges of that time.

Courting trouble: Archaic laws passed during colonial times continue to clog our statutes books

Archaic laws are a remnant of our Colonial past. Image from IBN

“Law tends to follow precedents,” said Chandrachud, “But it must be kept in mind that administration of justice also involves interpretation of laws that may have been laid down ages ago, in accordance with contemporary needs and challenges.”

In light of Justice Chandrachud's speech and the recent misuse of obsolete laws, here’s a look at some of the most troubling rules, a burdensome colonial legacy:

Satire is sedition.

Act: Indian Penal Code, 1860 – Section 124A for sedition

Punishment for contravention: Imprisonment for three years extendable to life and/or fine.

What the law says: This law, which was coined to protect the British royalty from protesting Indians, says that any word, either spoken or written, or sign, or visible representation which incites violence, hatred or contempt, or excites disaffection towards the Government in India is punishable under the law.

Case in point: Amidst national outcry, Aseem Trivedi, a political cartoonist was arrested for posting caricatures of the Indian Parliament, national emblem and the Constitution on a web portal. His website was banned by the cyber cell for blasphemous content soon after. “The cartoons depicted Parliament as a commode and showed the national emblem with wolves instead of lions. His work was obviously aimed at creating hatred amongst the society,” said a senior official. This is also the law under which JNU’s Kanhaiya Kumar was recently arrested.

Not more than three pints of beer a day.

Act: Bombay Prohibition Act, 1949

Punishment for contravention: Imprisonment extendable to six months and/or a fine of Rs 5,000.

What the law says: A person is allowed to drink or possess not more than two units of alcohol a day. For hard liquor such as vodka and gin, the two unit limit is 214.28 ml (three and a half pegs), for beer it is 1.14 litres — a little more than two pints, and for wine, the limit is 0.448 litres. You can mix and match your poisons, but the limit shouldn’t exceed two units.

Case in point: Priti Chandriani, 53, who would make liquor chocolates at home for sale, was arrested in Mumbai for possessing alcohol beyond permissible limits. The excise department raided her Worli apartment following a tip-off that large amounts of alcohol were stocked in her home, which they insisted was for her “personal consumption.”

No Bob Marley, please.

Act: Young Persons (Harmful Publications) Act, 1956

Punishment for contravention: Imprisonment up to six months and/or fine.

What the law says: The law aims at preventing the dissemination of “harmful publications” to young persons. Any person who sells, distributes, advertises, lets to hire or publicly exhibits such details is punishable under the law.

Case in point: In order to rid Kochi of marijuana and other drugs, the cops not only raided several joints, but also booked and arrested sellers of Bob Marley merchandise, including t-shirts, bracelets, bumper stickers and key chains. The cops justified their act saying that since these products sported marijuana leaf pictures and that of the reggae artist, they carried “anti-social messages and symbols,” which were pushing the youth towards recreational drugs.

No hugging the opposite sex.

Act: Bombay Police Act, 1951.

Punishment for contravention: Rs 1,200 fine.

What the law says: This law is against ‘indecent behaviour’ in public. It prohibits people from exposing their person in public, speaking in an indecent manner, or behaving indecently. However, the term “indecent” is not defined under the Act and is open for individual interpretation to cops. Its execution often toes into moral policing.

Case in point: A 25-year-old man was detained and harassed for indecent behaviour after he hugged his female friend goodbye at Carter Road, Mumbai. Similarly, the Mumbai police raided a private hotel last year, made 13 couples leave their rooms after knocking on their doors, carted them away to the local police station, fined them and even made them call their parents.

Free restaurant entry? Woman is a 'prostitute'.

Act: Immoral Traffic (Prevention) Act, 1956.

Punishment for contravention: Detention in a corrective institution for two to sevenyears.

What the law says: If a female offender is found guilty of prostitution, her character,state of health and mental condition need to be assessed, and if need be, she should be rescued and sent to a correction home for her rehabilitation. The court has the authority to study these circumstances and decide upon the period of her reform training.

Case in point: Two sisters at a birthday party in a Mumbai restaurant were arrested under PITA and then sent to a reform centre for sex workers for 21 days. After showing a large number of documents proving they were legitimate, tax-paying citizens, mothers and wives, they were released. The cops said that a prostitution ring was at work in the restaurant since women had free entry while men had to pay a stag entry of Rs 3,000.

No drinking without permit, not even at a pub.

Act: Bombay Prohibition Act, 1949.

Punishment for contravention: Imprisonment extendable to six months and/or a fine of Rs 10,000.

What the law says: Every person, whether drinking at home, bar, pub or a club, has to avail of a permit for alcohol consumption, even if he is over 25 years of age and permitted to buy and consume alcohol. Daily permit is available at Rs 5 for Indian-made foreign liquor and Rs 2 per day for country liquor. These are available at local wine shops, but for yearly permits, applications have to be made to the area excise officer. A one-year permit costs Rs 100, and a lifetime permit Rs 1,000.

Case in point: The Mumbai police busted a sundown party at Juhu’s OakwoodPremier hotel in 2012. Revellers were detained and their blood and urine samples were sent for forensic analysis. Not only were drug consumers booked and arrested under the narcotics Act, patrons were also charged for consuming alcohol without permits — a move widely criticised by lawyers.

Other obsolete laws

Lepers are 'criminals'

The Lepers Act, 1898 calls for the immediate arrest of a pauper leper (a leper who begs for alms) by any police officer without a warrant. The leper has to be held in an asylum unless he denies the “allegation of leprosy.” The Act also bars lepers from indulging in certain trades, using public carriageways, and drawing water from public wells.

Kite-flying is a crime

According to The Aircraft Act, 1934, flying kites or balloons is likened with flying aircrafts and is made out to be an offense. Unless you have a licence from a government authority, there is likelihood of arrest. And if your kite or balloon injures another person, you are liable to pay compensation for the same. It may even call for imprisonment extendable to three years.

Letters can land you in jail

According to The Indian Post Office Act, 1898, the government has the “exclusive privilege” to convey letters with the exemption from liability for loss, mis-delivery delay or damage. One of the few vague exceptions is “letters sent by a private friend in his way, journey or travel, to be delivered by him to the person to whom they are directed, without hire, reward or other profit or advantages for receiving, carrying or delivering them.”

Not fighting a locust invasion is punishable

The East Punjab Agricultural Pests, Diseases and Noxious Weeds Act, 1949 states that in face of danger of an invasion by locusts, the government has the right to call upon any person aged above 14 years to fight the attack. The person has to respond to the beat of the drum in the city’s centre, failing which he will have to pay a fine of Rs 50 or be subject to simple imprisonment extendable to 10 days. The same punishment is also applicable if a person plucks a plant.

Lawyers opine that the menace around such archaic laws is two-fold – although obsolete, they’re still live, and secondly, they are grossly under-defined, leaving room for misinterpretation and victimisation of innocents. Satish Maneshinde, a leading criminal lawyer said that most of such laws, when coined, were meant only to support the British royalty and crown. At the time, India was fighting for independence, even fighting against these laws. But though the English rulers have left, our judiciary is still governed by their largely oppressive, monopolistic statutes.

“In contemporary India, most of these laws stand redundant. The JNU row is basically over a sedition law that was made to protect the crown. Even Section 377 of the Penal Code (for homosexuality and unnatural sex) is an age-old law. We need to look at the circumstances under which the law was framed. Then, the Church considered homosexuality as an offence against mankind, humanity and nature. But now, even the Vatican has accepted same sex marriages,” said Maneshinde.

Majid Memon, another leading lawyer said that considering the huge plethora of India laws, it would be appropriate to say that we have too many laws and too little justice. He added that the best set of laws is the one that keeps pace with changing times, with the changing conduct, needs and values of a society. Laws are meant to serve the society, he opines, and they need to be flexible to adapt to an evolving society’s mood.

“It is therefore necessary that law makers and executors look again at the utility of existing laws and if those laws that have become obsolete, they need to be struck down," said Memon. "At the same time, fewer laws would deliver better justice because there would be fewer complications. Presently, the Parliament of India is seriously examining the necessity of deleting irrelevant laws from our books of statute. There may be hundreds of such laws which were enacted during colonial era and haven’t been quashed."

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Updated Date: Mar 20, 2016 12:32:56 IST

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