Introduction and Meaning
Recently, the Hon’ble Supreme Court of India, in one of its judicial pronouncements, namely, In Re: Construction of Multi Storeyed Buildings in Forest Land Maharashtra, 2025 SCC OnLine SC 1134, interestingly held that just because an environmental law has not been enforced or put to use for a long period of time, does not mean that the same should be considered as automatically repealed or revoked or abolished.
I find this to be a fascinating proposition because in many countries, there is a legal doctrine, namely, the doctrine of desuetude, according to which “if a statute or treaty is left unenforced long enough, the courts will no longer regard it as having any legal effect even though it has not been repealed.” (Black’s Law Dictionary)
Though in India, the doctrine of desuetude is not pressed into service in a routine manner, and satisfaction of twin conditions, namely, non-operation of statute for a long period, and following of contrary practices over a period of time, is vital for its applicability, yet a question arises as to whether it is prudent to have such laws that are not being enforced at all.
Desuetude and Inefficiency
In my humble view, from the point of view of efficiency and productivity, it is definitely a travesty to have laws that are not being implemented. Enacting or making a law is both a time-consuming and a financially burdensome process. Lawmakers have to deliberate, views of stakeholders are invited, legislative wheels are moved, and only thereafter a law comes into being. Now, if so much pains are taken to create a law, why keep it unimplemented? There is no straightforward answer to this issue of non-implementation or non-enforcement of a law. But somebody must take the responsibility for this executive lethargy. It is the job of the government to implement laws, and if it is unable to implement laws, it should either resign or explicitly repeal the law that is not being enforced. There cannot be any other way round.
The doctrine of desuetude must be regarded as an exception, and I agree with Indian courts that the judiciary should not have a trigger-happy approach to routinely declare a law as being suffering from the vice of desuetude. In fact, every time the doctrine of desuetude is pressed into service, it is a tight slap on the face of the executive, and it exposes their incompetence.
Imagine a government is elected on the promise that it will make a law not to cut trees. The government moves the legislative wheels and gets the concerned law enacted. However, due to its devilish intent, the government does not implement the said ‘law’ and keeps it as a dead letter. This is not a new phenomenon. In fact, desuetude has been used time and again and in novel ways, as a scrupulous tool to bulldoze the will of the people. Either governments do not implement a law, or they make the implementation hyper-technical and cumbersome.
How to Combat Desuetude
It is high time that countries like India enact a D.O.G.E. (Department of Government Efficiency created by Trump Government in US) like Desuetude Commission and look into the aspects relating to implementation and enforcement of laws. This is actually not a big task and with the help of current advancements in technology, within months, if not weeks, the laws that are being disused could be identified. The first task should be proper identification. Once identification of disused laws is made, the next step should be to see the manner in which these laws could be implemented, and if at all they are required to be implemented. The laws that are not needed anymore should be recommended to be repealed by the Desuetude Commission and the laws that ought to be implemented ought to be implemented with immediate effect.
There is so much government inefficiency all around us. Steps like these would ensure that neither the judiciary is overburdened to look into the issue relating to desuetude nor precious public exchequer is squandered away by creating confusion and lengthy paperwork arising out of any disused laws.
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