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How complexity enters law
December, 21st 2006
Bad drafting of laws cannot be dismissed as a minor aberration. It comes with a huge social cost. It complicates simple issues.

If we are asked to draft, say, a company law provision, you and I, the laypersons that we are, will draft it in a simple and forthright manner. It will be a section, neatly organised and divided into numbered sub-sections. Each sub-section will convey one idea and complete in itself. The language will be simple and the sentences will not be overlong. There will be no provisos, no explanations and no unnecessary prescriptions. The section will lend itself to easy and unambiguous interpretation.

Now, a provision like that may satisfy lesser mortals. But the legal drafting fraternity will find it too simple and `bare'. The provision will offend the stalwarts there, as it is not in what they call "the legal language".

The pundits will reject the "bare" draft and start working on and produce a sufficiently long-winding provision.The global trend is that of making legislation less complex. Consider the provisions from the Financial Services and Markets Act 2000 enacted by the British Parliament which became law on June 14, 2000:

"No person may carry on a regulated activity in the United Kingdom, or purports to do so, unless he is (a) an authorised person; or b) an exempt person. If an authorised person carries on a regulated activity in the United Kingdom, or purports to do so, otherwise than in accordance with the permission (a) given to him by an Authority under Part IV, or (b) resulting from any other provision of this Act , he is to be taken to have contravened a requirement imposed on him by the Authority under his Act... "

"Now, come to a recent enactment of Parliament The Right to Information Act 2005. The enactment is replete with provisos, explanations and parentheses.

"Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any compliant or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of Section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:... "

Such inelegance is not true of this Act alone. Take any recent legislation, be it the Competition Act 2002, the Securitisation Act 2002 or the Prevention of Money-laundering Act 2002, you will find it long-winding and obscure.

The troubles caused by the ill-conceived and badly-drafted amendments to the Companies Act are only too well known. The state of the rules made under these enactments (subordinate legislation) is still worse. That modern legislation elsewhere avoids complexities and adopts simple formats to convey ideas clearly has been totally lost on our law drafters.

Revamp drafting machinery

Bad drafting cannot be dismissed as a minor aberration. It is not a simple pitfall. It is not just bad, it is criminal. It comes with a huge social cost. It complicates simple issues. It leads to unnecessary litigation and docket explosion in the courts. It causes colossal waste of manpower and time. It causes enormous hardship.

The Government must revamp the legal drafting machinery and ask the pundits there to get acquainted with what is going on elsewhere in the world.

Judicial forums should discourage clever and contrived arguments presented before them by smart counsel. Such arguments twist and misinterpret statutory provisions. They impute an intention to the legislature which it would have never meant.

S. Santha Devi
(The author is a Mumbai-based advocate.)

 
 
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