Desuetude

In 1818, one Abraham Thornton, acquitted on a charge of murdering Mary Ashford, on being rearrested claimed a Trial by Combat. The prosecution stated that a law ought to become invalid if it was not used for centuries. The Court, however, had to “administer the law as they found it, and not as they wished it to be”. Nothing was brought forth to oust Thornton’s right to a judicially sanctioned duel. And since the duel was not accepted, Thornton was set free. Does all law indeed remain until it is repealed? A post on LiveMint, “Cutting Down India’s Forest of Laws”, does say “unlike some countries where Courts disregard statutes which have not been enforced long enough, our Courts do not follow such a principle”. But that opinion is not correct. And I am tempted to say a few more than usual might be misinformed.

Desuetude is an ancient and unconventional legal doctrine that empowers Courts to suspend the operation of a statute after a long period of intentional governmental non-enforcement and notorious public disregard for it. Desuetude plays the same role for the law that spring cleaning does for attics: it enables items to be disregarded that perhaps once were thought valuable but have not been used recently.

Hon’ble Justice A.N. Sen in State of Maharashtra v. Narayan Shamrao, (1982) 3 SCC 519 (“Shamrao”) had though stated that “the rule concerning Desuetude has always met with general disfavour”, Hon’ble Justice B.L. Hansaria in Municipal Corporation v. Bharat Forge Col. Ltd., (1995) 3 SCC 434 (“Bharat Forge”) found “no objection in principle to apply the doctrine to our statutes as well”. It was suggested a “new path be laid and trodden”. Hon’ble Justice R.M. Lodha in Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1 (“Monnet”) acknowledged that new path and indeed considered the Doctrine of Desuetude applicable when the concerned legislation had not been in operation for a considerable period and a contrary practice had been followed over a period of time. Shamrao and Bharat Forge were both 3-Judge Benches. The Division Bench in Monnet could have done little to resolve the contradiction. In a suitable case, the SC would surely have to refer the question of applicability of the Doctrine to a Larger Bench.

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