Dynamics and Dimensions of Doctrine of Desuetude
by Justice Jitendra N. Bhatt*
Cite as : (2004) 4 SCC (Jour) 21
The jurisprudential meaning of desuetude is that long and continued non-use of law renders it invalid, at least, in the sense that courts will no longer tolerate punishing its violators or transgressors. This doctrine had been in vogue in Roman law and in some of the civil law countries in Europe, but not in the United States or England. In Roman law, it was recognised that, disuse could abrogate a statute. Acts of the old Scots Parliament, may be held, to have fallen into desuetude if they were long disregarded in practice. Similarly, in international law, an old treaty may fall into disuse, if long disregarded. This principle had, however, never been seriously used in UK. Interestingly, it may be mentioned that this principle was recognised in the past in Scotland. It is, however, not recognised there today.
In the United States, though this doctrine is not applied, some of its vestiges remain in the executive instructions, which govern exercise of power. For example, in the American Bar Associations Standards Relating to the Prosecutorial Function, which influence prosecutorial discretion, one is prolonged non-enforcement of the statute with community acquiescence. No doubt, it is not a rule but it cannot be denied that it amounts to desuetude. It may, also, be remembered that a trace of desuetude, in the latter sense, still exists as well. In US v. Elliott1, the defendant (accused) was charged with violating a statute enacted half a century earlier and never used. After critical review of cases, the Court ruled that fairness, which is the heart of due process, demanded that the accused should not be punished.
It will, therefore, be very interesting to note that in the case of Elliott1, although finding the old law valid and convicting the accused, the Court in effect resurrected and accorded recognition to desuetude by introducing the modern doctrine of fairness, reasonableness, usefulness and vagueness. If one examines the developments in English law, it could be seen that though desuetude was not there, a similar doctrine non-observance was in vogue. Sir C.K. Allen explains this, thus:
There was at one time a theory which, under the name of nonobservance came very near to the doctrine of desuetude, that if a statute had been in existence for any considerable period without ever having been put into operation, it might be treated as null.... It may now be considered to be wholly discarded.2
Desuetude: conceptual analysis
The question, therefore, would emerge, how does non-observance differ from desuetude and why is it now discarded? Non-observance, it seems, treats a rule as if it were null by refusing to enforce it after a long period of non-enforcement, while desuetude when applicable would declare a rule actually null. The fine distinction needs to be accepted. However, evidently, the doctrine of non-observance, now discarded and not repealed by statute, did not fall by desuetude. If it applies only to statutes or to rules that were themselves never applied, then it cannot apply to itself. It is, therefore, obvious that it describes quasi-nullity of any rule that will not be enforcing due to long non-enforcement, and then it truly describes its own current statute or would do so but for the present or continuing validity it would need to do so.
I am tempted to state, as a matter of fact, we could call the doctrine of desuetude as implied and indefinite sunset clause. Repeal of statute by desuetude is thus like repeal by sunset clause. This, obviously, highlights a significant difference between the two. A sunset clause may be a part of statutory rule or regulation being repealed and typically is. So we must ask, how it tells the authority after self-repeal that repeal has occurred. No doubt, the doctrine of desuetude is external to the rule being repealed but for the external, reflexive application to repeal the doctrine of desuetude. The normal operation of it, therefore, is reflexive and raises no question of partial or total self-repeal. While sunset clause resembles the sceptics statement of uncertainty, which cancelled themselves the way rhubarb (purgative) washes the digestive system and itself, the doctrine of desuetude resembles the sceptics proof that proofs are impossible even when it succeeds, it displaces the continuing possibility of what it aims to undo.
Desuetude and the res juris prudentia
In the United States this doctrine is not applicable either in the State or in the Federal jurisdiction. However, its principles have been identified and applied in the process. In Walz v. Tax Commission of City of New York3, custom was tax exemption for churches which the Court upheld after so dramatically declaring it open to question in order to tone down its bold status and position of desuetude. The Supreme Court cited the following statement of Justice Holmes in Jackman v. Rosenbaum Co.4:
If a thing has been practiced for 200 years by common consent it will need a strong case for the Fourteenth Amendment to affect it.
It would be, therefore, quite unambiguous and evident that the Holmesean qualification for all practical purposes supports the doctrine of desuetude like Elliott case1 in the guise of fairness or due process. It indicates that desuetude is not a relic of the past.
Under the doctrine of desuetude, the law that has not been enforced for a long time is nullified. Of course, it does not constitute an integral segment of the legal order. The doctrine of desuetude formally recognises this nullification through extended non-enforcement of an otherwise valid provision or a rule. A law or rule, which is never applied, may lose its legality, validity and enforceability through the doctrine of desuetude. Kelsen, in exposition of theories of law, has lucidly expounded this proposition and as such incorporated this as an idea into his celebrated pure theory. Through the doctrine of desuetude in lieu of criminal prosecution, courts have many times found some rules or statutes void under the philosophy and doctrine of desuetude. At times, courts, in case of criminal conduct or criminal charge which has remained in disuse or cessation of use, has resorted to void the action of the State implying the doctrine of desuetude.
Desuetude: Indian juridical context
In India, the doctrine of desuetude does not seem to have been used so far to hold any statute repealed. There is no logical and reasonable objection in principle to apply this doctrine to our statutes as well. This is for the simple reason that for a law or rule in disuse for a long duration and instead a contrary practice being in use, the citizen is still required to act as per the dead letter for a variety of reasons which I may not, right now, for time and space constraint, meticulously, advert to. An innovative approach, dynamic dimension, in this behalf is, therefore, required to be propounded and expounded in furtherance of public good and fair justice. This proposition is recently reinforced by the decision in Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd.5 In this case, the doctrine of desuetude was invoked holding that it is applicable in India, also, while providing lucid proposition and exposition of the principles laid down in Section 6 of the General Clauses Act, 1897.
It must, also, be remembered that the doctrine of desuetude is a practice or rule by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of obsolescence or disuse or cessation of use; there must also be a contrary practice, which must be of some duration of general application. A citizen, therefore, ordinarily, should not be visited with any such evil or civil stringent consequences, on the basis of statutory provision or rule having been in disuse for long duration and instead a contrary practice in use, by invocation of the doctrine of desuetude. To apply the principle of desuetude, it is, always, not necessary to establish that the statute has been in disuse for long and the contrary practice of some duration has been evolved. This proposition is also voiced and accepted by Craies in his book Interpretation of Statute Law.
Abrogation of statute is only by repeal and not by desuetude or obsolescence. In India, the doctrine of desuetude does not appear to have been invoked seriously, so far in many reported cases to hold that any particular regulation, rule or statute has stood repealed because of this process. Nonetheless, there should be no objection, in principle, to apply this doctrine to our statute as well, for the obvious reasons of larger interest, public good, and public policy and for doing real and practical justice in a given fact situation.
Thus, desuetude conceptually and technically, could be said to be a process by which a statute may lose its force without express repeal thereof. For practical purpose, for a statute or legislation, which has become, by passage and practice a dead letter due to disuse or non-use for long duration, acceptance or recognition of the application of the doctrine of desuetude becomes not only expedient, but, also, at times imperative to advance the cause of justice.
Applicability of desuetude to constitutional law some implications
Obviously, it will bring into focus, as to whether such a doctrine could apply to the constitutional rules or provisions. This is, really, a highly debatable and controversial aspect of the doctrine of desuetude.
Experts, who are protagonists of this doctrine, have raised a question that if desuetude could apply to American constitutional rules, then major parts of the American Constitution could be repealed through this doctrine. It is their version that, of course, it would constitute self-amendment, for desuetude is not authorised by the American Constitution itself. It would, therefore, constitute amendment of the American Constitution by an unofficial method of amendment, which is outside the ambit and purview of the American Constitution, unlike as it would be if amended, by judicial review or treaty.
One provision of the Federal American Constitution, in Article V provides that States by petition to the Congress could call a national convention. Although many States have petitioned the Congress to call a convention, they have never been successful in their petitions for an action by the courts under Article V to call for such a convention. Could this provision in Article V, therefore, be said to be invalid for non-use of it? Under the doctrine of desuetude, not-used concept provision in Article V in the Federal Constitution would tantamount to self-amendment, which is foreign to the principle of constitutional amendment.
The concept of self-amendment through desuetude is, therefore, doubtful insofar as the constitutional provision is concerned, even though the history of its neglect may constitute a practical, if not legal, impediment to its use. If the doctrine of desuetude had been repealed by desuetude then the same sort of problem would arise in the case of self-repeal by the sunset clause. The doctrine of desuetude undoes desuetude, ipso facto only by continued recognised acceptance and validity of this doctrine. It may be recalled that the cat could be made to vanish only if a grin remains.
Amendment by frequent violation is a variant of desuetude. It is, classically, triggered by neglect, non-use or non-enforcement, which may be responsible for frequent violation. It, without violation, is possible for rules whose original purpose of application fades away making a violation as obsolete as compliance. However, where desuetude is recognised, a custom or practice contrary to rule of law must usually have arisen. In this sense, violation may become repeal even though the acts of violation do not and ordinarily must not have law-making effect. Here, it must be noted that amendment by violation is legally and officially rejected at the level of the Constitution of US. It has been, lucidly, propounded that the legislature cannot amend the Constitution merely by frequent violations.
It appears that this exposition of jurisprudential aspect cannot be ignored. However, in case of statute, legislation or regulation, other than constitutional, this aspect will stand on a different footing and will assume different shade and colour insofar as recognition of the doctrine of desuetude is concerned. There are other constitutional provisions in the US Constitution to which we might look as clauses that may have lapsed through desuetude. For example, in Section 2 of the Fourteenth Amendment there is a provision that if any State in the United States is improperly restricting the right to vote, then its basis of representation shall be reduced in the proportion which the number of victims bears to the number of eligible voters. Despite this strong and sturdy provision, there have been frequent violations by the States.
The Federal Government has never imposed such a mandatory penalty. Likewise, it is estimated that there are about 50 sections in the Constitution of Canada (British North America Act of 1867) that have no remaining constitutional force although they have formal validity.
In prorogation, let it be remembered that law should be stable but should not stand still. It should not be static. The concept of justice is a continuous changing process so as to shape and mould itself. The ultimate design is to do justice to the cause in a given case. The doctrine of desuetude could not be characterized as a relic of the past. It has its jurisprudential potency and priority in a given special factual profile. Law aims at doing justice and justice is the end of the law. We should not allow a situation where law and justice become distant neighbours. The doctrine of desuetude can be employed, successfully, by courts in their potent, voluminous voyage in the search for justice and truth. The doctrine of desuetude in a given situation, for doing complete justice can be invoked, if the following two aspects coexist:
(1) Any statute or legislation has lost its force without express repeal on account of long cessation of its use or disuse or obsolescence.
(2) There must, also, be a contrary practice, which must be of same duration and general application in place of such a statute or legislation.
A dead letter of legislation in the larger interest of justice cannot be employed against the subject being oblivious to the object. It is, in this context, the Honble Apex Court of India, in Municipal Corpn. for City of Pune5 has rightly observed, that our soil is ready to accept this principle. Indeed, there is need for its implantation because persons residing in free India, who have been assured fundamental rights including what has been stated in Article 21, must be protected from being prosecuted and punished for violation of a law, which has become a dead letter. A new avenue, a new horizon and a new dimension, therefore, requires to be laid and trod on qua the doctrine of desuetude insofar as India is concerned.
Quasi-repeal by desuetude
Many enactments are of temporary nature and, obviously, such enactments expire on their own upon the time of their expiry. Even statutes of this type are not without their problems of construction. Legislative enactments may be suspended, as well as repealed and so far as immediate effect is concerned, there is, hardly, any practical difference. Legislation may be repealed by long non-user or more accurately, by desuetude. This is an unusual type of implied repeal, which has, time and again, baffled the courts. It would, therefore, seem that long and continued non-use of a statute or disregard of its terms by people generally or acquiesced in by them, should operate as a repeal of the statute by direct exercise of legislative powers by the people or as an implied repeal by virtue of practice, precedent or custom.
English law does not, as such, recognise any doctrine that the Act of Parliament can end in desuetude or non-use. As expounded by Lord Mackey, desuetude requires for its operation a very considerable period, not merely of neglect, but of contrary usage of such character as to practically infer such completely established habit of the community as to set up a counter-law to establish a quasi-repeal6.
The doctrine of desuetude was not accepted by a three-Judge Bench of the Supreme Court in State of Maharashtra v. Narayan Shamrao Puranik7. It will be, however, interesting to mention that another three-Judge Bench of the Supreme Court in Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd.5 has expounded this doctrine of desuetude and has implanted it in Indian law without adverting to the earlier decision. However, it appears that the case of Narayan7 (three-Judge Bench in 1983) was not brought to the notice of the Court.
The case of Bharat Forge Co.5 and the doctrine of desuetude decided by a three-Judge Bench in 1996 were considered and referred to by a twoJudge Bench in Cantonment Board, Mhow v. M.P. SRTC8 and following it, it was held that necessary conditions for the doctrines application were to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved. The doctrine was accepted in principle but did not apply in the case, as these conditions were not satisfied. In this case also, the case of Narayan7 was not noticed.
The question, therefore, that sharply emerges and brings into focus is:
Whether this doctrine of desuetude demands neo-jurisprudential dimension and dynamics? Does it not require resurrection?
In my respectful opinion, therefore, in this context, the doctrine of repeal by desuetude is classical but controversial and also in view of the abovereferred two divergent decisions of the three-Judge Bench of the Honble Apex Court, it does require reorientation, re-examination and reconsideration by a larger Bench, as such an early and expeditious proposition and exposition will, evidently, emerge and constitute a dynamic and resultant better guide for the legal and judicial fraternity. With this, let us call it a day, reserving for advanced and further research for depicting and designing this doctrine, and its deeper critical reappraisal, at a later stage.