The word ‘difficult’ often crops up in conversations, ranging from “it is difficult to do business in India” to “it is difficult to express oneself in India”.
The Jain Commission, in its ‘Report of the Commission on Review of Administrative Laws’ (September 1998), commented: “There is a perception among many people that despite a fairly extensive state intervention and a regulatory regime in our country, there is no real deterrence and effective enforcement for the benefit of society in general and the average citizen in particular.”
Under the Factories Act, 1948 — which with its statespecific rules reeks of the license raj — business entities have to ‘suffer’ inspections from various different government departments, and notices for even minor lapses are sent directly to directors. No wonder the World Bank’s ‘Ease of Doing Business’ ranking leaves India at 132nd place out of 183 countries.
The Jain Commission admitted that multiplicity and complexity of laws and rules, as well as lack of information about them leads to misuse (read facilitates corruption) and hampers growth. It sought repeal of over 1,300 central laws (including 11 British statutes). The Commission admitted that there isn’t even a rough estimate of similar state laws, which could run into several thousands. Since the Acts and the rules neither recognise current realities, nor do they facilitate compliance, there is a tendency to evolve mechanisms which are not in the interest of employees, employer or even the state. Harassment and circumvention emerge as the key conduct.
The National Law Commission down the years has also been giving its recommendations for repeal or revision of laws. Yet, apart from a one-stroke repeal of 315 Amendment Acts in March 2002, progress is pathetically slow. Owing to our legislative framework, a law or Act never dies unless specifically repealed.
As no one wants to take responsibility for repeal of old laws, the Jain Commission suggested adoption of the US or UK model. The UK, then, had in place a Deregulation and Contracting Out Act, 1994, which permitted the authorised minister to amend the provision of a legislation or repeal it through administrative orders (after inviting objections) so long as this reduced the burden imposed by that legislation. However, an outcry over dilution of the sanctity of the UK Parliament led to the repeal of this Act. Today in the UK, under The Legislative and Regulatory Reform Act, 2006, legislations can be repealed by a Parliament resolution (a full-fledged time-consuming debate is not required).
The Jain Commission also suggested the US model with its sunset clauses. “There is no general or comprehensive requirement at the US federal level that all laws, or even specific categories of laws, must be reviewed, renewed, modified or set to expire. At the state level, however, sunset requirements are more common.
“While giving unprecedented rights to a minister for repeal of an Act may prove dangerous and even unconstitutional, perhaps the sunset clause mechanism could be explored,” says M. L. Bhakta, senior partner of law firm Kanga & Co. (Source: The Times of India dated 29-11-2012)
