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Indian Express dated 15.01.2014
Source: http://indianexpress.com/article/opinion/columns/our-poorly-written-lokpal/#sthash.qGCJPVRx.dpuf
The quality of parliamentary debate in India has always been lamented. When it comes to matters of lawmaking, the art of asking the right questions about substance is rare enough; the art of having a real debate about style and form is practically extinct. This is true of primary laws passed by Parliament or by state legislatures, and also of subordinate legislation issued by regulators. The outcome is that Indian laws are often poorly drafted, requiring frequent amendments and tedious judicial clarification.
A case in point is the 2013 version of the Lokpal and Lokayuktas Bill, as passed by both houses of Parliament. Considerable time was spent debating substantive issues, but the bill’s drafting style was ignored. Some innocuous (but classic) examples of poor drafting that the bill exhibits are gathered here.
Matters of grammar, punctuation, political correctness (gender neutral, anyone?), and plain sloppiness aside, the bill is complex and unreadable for many reasons. There is the problem of ambiguity, where a provision invites more than one possible meaning. For example, one subsection empowers the lokpal to authorise agencies to search and seize documents, that, “in its opinion” are useful for an investigation, if it “has reason to believe” that such documents are secreted in any place. Later, in another situation, the lokpal must record reasons for its belief in writing. While tests in jurisprudence may conclude that belief and opinion are to be treated the same, and that both have to be reduced to writing, this text of law prompts many questions: (a) Since “belief” and “opinion” are used in the same sentence, are they intended to mean different things? (b) Does the lokpal not have to record reasons for its belief in writing unless specifically asked? (c) Do opinions not have to be recorded in writing at all? And so on. Clarity and precision, two essential principles of the rule of law, cannot be co-opted by allusion.
Phrases common in law but increasingly regarded as archaic, and open to ambiguity and misuse, are omnipresent, such as “without prejudice to…” and “provided that…”. A perennial legal favourite, “notwithstanding xyz” (implying that “xyz” will be ignored and overridden), appears over a dozen times. (The American Law Division of the Congressional Research Service that serves the legislative needs of the US Congress describes “notwithstanding” aptly as “the statutory equivalent of a parent telling a child… ‘I really mean it’”, and therefore, regards it as superfluous.) Courts still have to decipher “xyz”, and examine why it is not applicable in context. Further, a blanket “notwithstanding” provision does not always mean that everything else in the universe can be ignored — the real test is to discover which laws continue to apply.
The bill, like so many others, also fails to strike a satisfactory balance between the over-vague and the over-precise. On one hand, it seeks to establish the principles on which the lokpal will function, and keeps the text appropriately vague — the lokpal website will display the complaints status “from time to time”. But it also micromanages the institution, providing the method to calculate the salary reduction of a lokpal member if the person receives a pension.
Consequently, the true legal effect of a provision can be understood only after wading through a maze of double negatives, convoluted and verbose phrasing, and numerous cross-references. All this when straightforward sentences would have sufficed. Imagine the number of court-hours that are devoted to such exercises. Amidst the quibbling that follows, the original object of the law — in this case, a speedy disposal of corruption cases against public servants — gets conveniently forgotten. Whom, then, do we blame for judicial delays? The courts applying the law, or the legislators making the law?
Poorly written laws are not specific to India, and indeed, the world over, transformative changes are taking place to overcome precisely this problem. For example, the UK, whose legal legacy we frequently bemoan, has set up the “good law initiative” to make legislation less difficult for people to understand and easier to access in the digital age.
But straightening out the language is hardly the main problem. Beleaguered by process issues, human resource constraints and the lack of guidance and instruction, it is no surprise that laws in India are drafted the way they are.
The Indian lawmaking system allows practically any person to draft the first version of a legislative text (the Jan Lokpal Bill, for instance). Before it reaches Parliament, though, any draft law must go through due process of vetting and testing for soundness and consistency. This last exercise is usually carried out by the law ministry. But India has no manual or document that offers guidance on drafting a law, or on testing for soundness and consistency. The ministry is understaffed and ill-equipped to carry out these essential tasks. And professional drafters in this country are ill-trained and few and far between. For subordinate legislation, such as regulations issued by regulators, there is no equivalent oversight by the law ministry. And you would be hard pressed to find the last instance of regulations being debated in Parliament, despite being tabled before both houses. The quality of subordinate regulations, therefore, stands to be doubly worse than that of primary laws.
A poorly drafted legal text will not only have immediate impact in the form of ambiguity and uncertainty, but will also require years of philological unravelling to understand the original legislative intent. Members of the legislature (Parliament and states), executive (law ministry) and the judiciary (the Bar and the higher courts) can all contribute to improving this sorry state of affairs. But nobody seems to want to make a beginning. For how, then, as Dickens famously put it, would law make business for itself?
Sumathi Chandrashekaran is a legal consultant at the National Institute of Public Finance and Policy, Delhi
Our poorly written Lokpal
The 2013 bill passed by Parliament is sloppy, complex and unreadable.Source: http://indianexpress.com/article/opinion/columns/our-poorly-written-lokpal/#sthash.qGCJPVRx.dpuf
The quality of parliamentary debate in India has always been lamented. When it comes to matters of lawmaking, the art of asking the right questions about substance is rare enough; the art of having a real debate about style and form is practically extinct. This is true of primary laws passed by Parliament or by state legislatures, and also of subordinate legislation issued by regulators. The outcome is that Indian laws are often poorly drafted, requiring frequent amendments and tedious judicial clarification.
A case in point is the 2013 version of the Lokpal and Lokayuktas Bill, as passed by both houses of Parliament. Considerable time was spent debating substantive issues, but the bill’s drafting style was ignored. Some innocuous (but classic) examples of poor drafting that the bill exhibits are gathered here.
Matters of grammar, punctuation, political correctness (gender neutral, anyone?), and plain sloppiness aside, the bill is complex and unreadable for many reasons. There is the problem of ambiguity, where a provision invites more than one possible meaning. For example, one subsection empowers the lokpal to authorise agencies to search and seize documents, that, “in its opinion” are useful for an investigation, if it “has reason to believe” that such documents are secreted in any place. Later, in another situation, the lokpal must record reasons for its belief in writing. While tests in jurisprudence may conclude that belief and opinion are to be treated the same, and that both have to be reduced to writing, this text of law prompts many questions: (a) Since “belief” and “opinion” are used in the same sentence, are they intended to mean different things? (b) Does the lokpal not have to record reasons for its belief in writing unless specifically asked? (c) Do opinions not have to be recorded in writing at all? And so on. Clarity and precision, two essential principles of the rule of law, cannot be co-opted by allusion.
Phrases common in law but increasingly regarded as archaic, and open to ambiguity and misuse, are omnipresent, such as “without prejudice to…” and “provided that…”. A perennial legal favourite, “notwithstanding xyz” (implying that “xyz” will be ignored and overridden), appears over a dozen times. (The American Law Division of the Congressional Research Service that serves the legislative needs of the US Congress describes “notwithstanding” aptly as “the statutory equivalent of a parent telling a child… ‘I really mean it’”, and therefore, regards it as superfluous.) Courts still have to decipher “xyz”, and examine why it is not applicable in context. Further, a blanket “notwithstanding” provision does not always mean that everything else in the universe can be ignored — the real test is to discover which laws continue to apply.
The bill, like so many others, also fails to strike a satisfactory balance between the over-vague and the over-precise. On one hand, it seeks to establish the principles on which the lokpal will function, and keeps the text appropriately vague — the lokpal website will display the complaints status “from time to time”. But it also micromanages the institution, providing the method to calculate the salary reduction of a lokpal member if the person receives a pension.
Consequently, the true legal effect of a provision can be understood only after wading through a maze of double negatives, convoluted and verbose phrasing, and numerous cross-references. All this when straightforward sentences would have sufficed. Imagine the number of court-hours that are devoted to such exercises. Amidst the quibbling that follows, the original object of the law — in this case, a speedy disposal of corruption cases against public servants — gets conveniently forgotten. Whom, then, do we blame for judicial delays? The courts applying the law, or the legislators making the law?
Poorly written laws are not specific to India, and indeed, the world over, transformative changes are taking place to overcome precisely this problem. For example, the UK, whose legal legacy we frequently bemoan, has set up the “good law initiative” to make legislation less difficult for people to understand and easier to access in the digital age.
But straightening out the language is hardly the main problem. Beleaguered by process issues, human resource constraints and the lack of guidance and instruction, it is no surprise that laws in India are drafted the way they are.
The Indian lawmaking system allows practically any person to draft the first version of a legislative text (the Jan Lokpal Bill, for instance). Before it reaches Parliament, though, any draft law must go through due process of vetting and testing for soundness and consistency. This last exercise is usually carried out by the law ministry. But India has no manual or document that offers guidance on drafting a law, or on testing for soundness and consistency. The ministry is understaffed and ill-equipped to carry out these essential tasks. And professional drafters in this country are ill-trained and few and far between. For subordinate legislation, such as regulations issued by regulators, there is no equivalent oversight by the law ministry. And you would be hard pressed to find the last instance of regulations being debated in Parliament, despite being tabled before both houses. The quality of subordinate regulations, therefore, stands to be doubly worse than that of primary laws.
A poorly drafted legal text will not only have immediate impact in the form of ambiguity and uncertainty, but will also require years of philological unravelling to understand the original legislative intent. Members of the legislature (Parliament and states), executive (law ministry) and the judiciary (the Bar and the higher courts) can all contribute to improving this sorry state of affairs. But nobody seems to want to make a beginning. For how, then, as Dickens famously put it, would law make business for itself?
Sumathi Chandrashekaran is a legal consultant at the National Institute of Public Finance and Policy, Delhi
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