Persisting Need To Bring Reforms And Amendments In Special And Local Laws
Author: LawSphereX
Category: General Law
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PERSISTING NEED TO BRING REFORMS AND
AMENDMENTS IN SPECIAL AND LOCAL LAWS Sanskruti Rajpure, Institute of Law, Nirma University Introduction The legal issues that the general laws fail to address are addressed by the special and local laws. The special laws tend to focus on a specific kind of criminal activity. Such laws are in most cases product of legislation by the state. They are customised to fit the local customs, culture and needs. Special laws are based on a particular subject matter, in order to heed the needs of specific situation, groups or sector. Scope of the subject matters is wide giving a way to enact such acts on wide areas i. e. Labour laws, Security related laws, intellectual property laws, healthcare etc. Most often the special laws are central in nature and passed by a higher authority. Enactment of the special laws lead to formation of special courts and tribunals.
These judicial and quasi-judicial organs have power to interpret the special provisions and award appropriate remedy in case of distress. Any amendment is subject to legislative process as it is an outcome of legislation. In case of conflict and contradiction between general and specific laws the later will prevail. “Generalia specialibus non derogant”. Local laws are geographic in nature, they attend to particular region and its population. They are a tool to regulate and govern the diverse population and demographic. Their applicability is limited to the locality out of which they do not have any jurisdiction. The subject matters mainly are about land, education, urban development, police and local taxations. These laws a product of State legislations, each state has its own land revenue laws, specific police laws and separate education laws.
The local or decentralized form of government (municipal corporations or panchayat) also takes part in laws making. When making such laws the Municipal bodies focus on ease of governance, while panchayats are more concerned about preservation of customs and practises. They tend to be flexible, and simple to modify. The origin of special and local laws in India reflects the country’s cultural and political diversity. In the pre-colonial era, India followed customary laws rooted in religious doctrines and local traditions. During British rule (1757–1947), English common law was introduced selectively, with special laws like Hindu and Muslim personal laws and regional acts such as the Bengal Tenancy Act1.
Post-independence, the 1950 Constitution maintained legal pluralism, granting special provisions for regions like Jammu & Kashmir (Article 370)2 and states in the North-East (Article 371)3. Personal and tribal laws were preserved, while new laws like AFSPA (1958) and SEZ (2005) addressed security and economic needs. Recent debates over the Uniform Civil Code (UCC) and the 2019 abrogation of Article 370 reflect ongoing tensions between national uniformity and regional autonomy. Special and local laws have huge impact on day to day lives of citizens, they regulate the trivial as well as important aspects of an individual’s life. The impact of special and local laws can be assessed through the crime statics. More than one-third (39. 9%) of the reported cognizable crimes were under the provisions of the Special and local laws4.
In totality out of 61 lakh cognizable offenses, approximately 24. 3 lakh were registered under special and local laws. They also ignite the debates on the power of state vis a vis power of centre to legislate criminal laws. The legislative functions are reduced as well, because the Special and local laws enable the legislation to articulate laws that are policy oriented and not function oriented. SLL that need to be amended The Armed Forces (Special Powers) Act (AFSPA)5 has been a source of controversy due to the sweeping powers it grants to military personnel in designated "disturbed areas. " These powers include the ability to shoot to kill on mere suspicion, conduct warrantless searches, and make arrests at will. Critics argue that AFSPA has enabled widespread human rights abuses and provided legal immunity to soldiers who commit such abuses.
To address these concerns, Section 4 should be amended to narrowly define the circumstances under which lethal force can be used and to mandate judicial oversight of actions taken under this section. Additionally, Section 6's blanket immunity provision should be repealed or limited to allow for the prosecution of soldiers who commit human rights violations. The Public Safety Act (PSA)6 of Jammu & Kashmir has been criticized for its overbroad detention powers, which allow individuals to be held for up to two years without trial. The PSA
1 Bengal Tenancy Act, 1885, Acts of Parliament, 1885.
2 INDIA CONST. art. 370
3 INDIA CONST. art. 371
4 https://ruralindiaonline.org/en/library/resource/crime-in-india-2022-volume-ii/
5 The Armed Forces (Special Powers) Act, 1958, Acts of Parliament, 1958
6 The Public Safety Act, 1978, Acts of Parliament, 1978
has reportedly been misused to target political dissidents and ordinary civilians, and its lack of transparency and due process safeguards has led to widespread abuses. To address these issues, Section 8 should be amended to reduce the maximum detention period and to require that evidence justifying detention be presented to a court within a specified timeframe. Additionally, Section 13 should be revised to require that detainees be immediately informed of the grounds for their detention and to establish a more transparent process for reviewing the necessity of continued detention.
The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act7 was enacted to expedite the recovery of non-performing loans, but it has been criticized for its bias in favor of lenders and its lack of protections for small borrowers, farmers, and micro, small, and medium enterprises (MSMEs). Section 13's provision allowing banks to seize assets without court intervention should be amended to require mandatory arbitration before seizure, giving borrowers an opportunity to negotiate a settlement. Additionally, Section 14 should be revised to require stricter judicial scrutiny of banks' requests to take possession of secured assets, particularly in the case of small borrowers and agricultural loans.
The laws governing India's Fifth Schedule Areas, which are home to many tribal communities8, have been criticized for restricting economic development and being misinterpreted in ways that lead to land alienation and social unrest. Paragraph 3 of the Fifth Schedule allows governors to restrict the transfer of tribal land to non-tribals, but this provision should be clarified to balance the need to protect tribal land rights with the need to promote sustainable development. Additionally, the Panchayats (Extension to Scheduled Areas) Act,
1996 (PESA)9, which was enacted to empower tribal self-governance, should be strengthened
to ensure that Gram Sabhas have meaningful decision-making authority over land acquisition and resource management in their areas. The Land Acquisition Act10, despite being amended in 2013 to provide for fair compensation and transparency, continues to face criticism for its treatment of displaced communities. 7 The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Acts of Parliament, 2002
8 INDIA CONST. sch. 5
9 Panchayats (Extension to Scheduled Areas) Act, 1996, Acts of Parliament, 1996
10 The Land Acquisition Act, 2013, Acts of Parliament, 2013
Section 10A's sweeping exemptions from social impact assessment and consent requirements should be narrowed to prevent their misuse. Additionally, Section 24 should be clarified to ensure that compensation is provided in a timely manner and that unutilized land is returned to its original owners promptly. The Maharashtra Control of Organised Crime Act (MCOCA)11 has been criticized for its overbroad definition of organized crime and its use beyond its original purpose, with reports of it being used to target political opponents, activists, and journalists. Section 21's provision for up to 180 days of pre-trial detention should be amended to align with the standard 60-90 day period and to require judicial approval at each stage of detention.
Additionally, Section 18's allowance for confessions to police to be used as evidence should be repealed or limited to prevent the coercion of false confessions. The North East Special Infrastructure Development Scheme (NESIDS)12 was enacted to promote economic development in India's northeastern states, but its implementation has been plagued by corruption, delays, and inefficiency. To address these issues, NESIDS should be amended to require third-party audits and independent reviews of fund allocation and project implementation. Additionally, the involvement of local stakeholders and communities in decision-making should be mandated to ensure that projects benefit those they are intended to help.
Conclusion Special and local laws in India are tailored to address specific sectors or situations and may lead to the formation of specialized courts or tribunals to interpret and enforce them. Local laws, on the other hand, are geographically bound and cater to the specific needs of regions or communities. They often regulate aspects like land use, education, urban development, and taxation, reflecting the unique demographics, culture, and customs of each area. Historically, India’s legal system has been pluralistic, blending customary laws, colonial-era legislation, and modern legal frameworks. During the British colonial period, English common law was selectively applied, while special laws such as Hindu and Muslim personal laws continued to operate. After independence, the Indian Constitution retained this legal pluralism
11 The Maharashtra Control of Organised Crime Act, 1999
12 https://pib.gov.in/PressReleasePage.aspx?PRID=1795090
by granting special provisions to regions like Jammu & Kashmir (Article 370) and the North- Eastern states (Article 371). This framework allowed for the preservation of tribal, personal, and local laws while also addressing national security and economic concerns through acts like AFSPA and the SEZ Act. The impact of special and local laws is profound, influencing both trivial and significant aspects of citizens’ lives. These laws account for a substantial portion of legal cases, with around 40% of reported cognizable crimes falling under their jurisdiction. However, some laws have been controversial, prompting calls for amendments. The Armed Forces (Special Powers) Act (AFSPA), for instance, has been criticized for enabling human rights abuses, while the Public Safety Act (PSA) in Jammu & Kashmir has been accused of facilitating arbitrary detentions.
Economic laws, like the SARFAESI Act, have been criticized for favouring lenders over small borrowers and farmers, while tribal laws are seen as restrictive to development. Amending these laws to introduce greater accountability, transparency, and judicial oversight is crucial. Ensuring that special and local laws serve their intended purposes without infringing on human rights or economic fairness is essential to maintaining a balance between national interests and regional autonomy in India’s diverse legal landscape.