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The government should ensure economic survival through direct income transfer schemes and not through nationalisation of business enterprises and bring communism through the backdoor.
Labour laws
The Minimum Wages Act is intended to protect the unskilled workers whose bargaining power to secure a just wage is inadequate. This law attempts to strangulate the natural impulse of the employer to hire workers at the least possible cost. He will naturally try to circumvent the law by bribing the inspector and managing to get the consent of the worker to falsely state that he received the minimum wage. When the victim, namely, the worker and the aggressor cooperate, the inspector cannot do much except to collect his mamool. The honest employer who pays the minimum wage is pushed into a disadvantages position as his cost of hiring Labour increases and his cunning competitor steals a march over him in competitiveness.
Instead of such coercive techniques, if manipulative techniques like the direct cash transfer scheme are implemented, the minimum wages concept will get itself enforced automatically without the need of any inspector and prosecutor. The worker will refuse to work until a decent wage is offered by the employer. The tyranny of the employer becomes a thing of the past. So, Repeal the Minimum Wages Act.
The Factories Act
This act was rightly enacted to look after the safety of the workers. Some objectionable features are there. For instance, if the employer carries out any construction without prior approval of the authorities, even though the construction is made without violating any safety features, the law contemplates imposition of imprisonment or fine up to Rs1 lakh. Unfettered discretion given to the magistrates results in needless anxiety for the owner of the factory and gives scope for judges, lawyers and busy bodies to extract their pound of flesh to exercise the discretion in favour of the so-called offender.
S. 138 Of the Negotiable Instruments Act
This provision, which prescribes imprisonment if the amount covered by the cheque is not paid after demand notice following the bouncing of a cheque, virtually converted a mere breach of contract into a criminal offence. This is contrary to even the international covenant on human rights which provides that breach of contract should not be punished. This section should be scrapped. For more detailed treatment of the subject, please see www. Legal Articles Directory-business law-dishonour of cheques.
Building rules and zoning regulations
Setback rules, the rules which prescribe a minimum gap between the compound wall and the wall of the building are intended to ensure free flow of light in their. The municipal authorities by themselves and even neighbouring residents can prevent a violation of these rules by timely action by seeking prohibitory injunction in a court of law. If the neighbour keeps quiet and allows the construction to proceed, he cannot later complain as he is guilty of acquiescence. Construction made without prior approval was a minor technical offence for which a small fine was prescribed.
The municipal laws were changed in Andhra Pradesh recently. A construction without mere prior approval also attracts imprisonment. Bureaucratic red tape and corruption are universal in India. Often such provisions of law are violated on moral justifications like imminent requirement of the building, possibility of steep escalation in the cost making the project unaffordable due to delay etc. A building should be demolished only if it demonstrably violates safety requirements and not otherwise.The judicial pronouncements are on similar lines. From this angle the building rules should be reframed. So far as the zoning regulations are concerned, it is all right to prohibit industries in residential areas as they there is a possibility of their contributing to sound and air pollution. But why shops should not be permitted in residential areas is not clear. Shops and offices do not cause any kind of pollution. Such irrational restrictions lead to injustice and corruption, ridiculing the noble doctrine of rule of law.
Dowry Prohibition law
This problem of dowry is peculiar to India. It also depends partly on the population ratio. Earlier there was kanyasulkam which extracted a price from the groom to secure a bride. Nowadays it is the other way round. The anti-dowry legislation ignores the role played by the giver of dowry. After all, the giver also calculates the benefits his daughter would get by getting married to the most eligible bachelor. No dowry is given by a rich father to a poor and unemployed graduate though he might be of good character. Though The Dowry Prohibition Act formerly declares that the giver also should be punished, this has rarely happened as the giver is sympathised with as a victim instead of a participant in the crime.
This law is already being misused. A mere allegation of harassment, allegedly for dowry, invites arrests, protracted trial and possible conviction, giving scope for the police, the prosecutor, the judge and the defence counsel opportunities to make money.
The remedy is to recognise that if dowry is given voluntarily, it would not be an offence, though it should be kept as a deposit for the benefit of the bride, unless she voluntarily consents, in writing, before the registrar of documents, that it may be invested in some business venture of the husband. A contract to pay dowry may be treated as void as being opposed to public policy, though not an offence. A mere verbal demand for dowry may be treated as mental cruelty, entitling the claim of maintenance and even divorce. It is only when physical torture, resulting in visible injuries, is alleged and proved, criminal liability must follow. If such changes are made, it becomes more difficult to make false allegations of dowry harassment with ulterior motives, while at the same time the society would enforce its revulsion to this practice.
The law pertaining to prevention of atrocities on scheduled castes and tribes
The objectionable feature of this law is to treat a mere verbal abuse in the name of caste as an offence, attracting the provisions of immediate arrest and subsequent incarceration after protracted trial. The potential to misuse this law far outweighs the benefits if any. Creditors are misusing this law to realise their debts. Superior officers are afraid of taking action against their inefficient and corrupt subordinates fearing prosecution under this law. The punishment is disproportionate to the notional pain inflicted by the offender on the depressed classes.
The remedy is to provide only for monetary compensation of Rs 1000 for the first offence, Rs 2000 per the second and Rs 5000 for subsequent offences of this nature. The offense should be bailable and compoundable.
Prevention of Corruption Act
The bribe giver should not be punished as he is a victim and not the aggressor. Moreover detection of the crime of corruption becomes very difficult when the bribe giver is also punished. The codified law appears to be vague about the liability of the bribe giver. There were conflicting decisions of various high Courts pertaining to this aspect Under the Indian Penal Code. After the special act namely The Prevention of Corruption Act replaced the earlier law, the bribe taker and the person who helps in taking the bribe, namely, the middleman, come under the purview of the law. Whether the bribe giver can be treated as an accomplice is not authoritatively decided. The bribe taker can compel the giver to offer the bribe while the bribe giver cannot compel the bribe taker to take against his will. At the most, the bribe taker might be tempted by the repeated offers made by the giver. Hence, a rebuttable presumption may be added in the Act, that bribe giver was compelled to give the bribe by the taker, unless the contrary is proved.
LAW PERTAINING TO ARREST
The recent amendments to the code of criminal procedure in India have substantially reduced the risk of misuse of the provision pertaining to arrest. Unfortunately, the amendment is not yet enforced . The sooner it is enforced, the better it is.
The above list is not exhaustive and the author proposes to periodically add to the list. I the readers of this article offer their own list, he would be grateful to them.
Conclusion
It should be borne in mind that officials and judges should learn the discipline of enforcing the law as it stands and not as it ought to be. This is required to maintain predictability in the administration and reduce the role of discretion. Care should be taken in making the laws by observing the aforesaid norms.
