Faulty Drafting of Laws

"Ambiguity in legislative enactments is a fruitful source of litigation in India. The object of the Legislature, before as well as after promulgating a law, is to give it as much publicity as possible, regard being had to a due comprehension of it; and what can be more conducive to the desired result than that not only the arrangements of its different parts but the language employed in expressing them should be as far removed from technicality as is consistent with intelligibility. Hence an endless round of construction on the clause of the more important Acts as a reference to annotated editions of any of the Codes will amply verify. These ambiguous expressions have given rise to much discussion, and conflicting rulings on the subject have long exercised the legal mind.  The truth is the nomenclature used in forensic literature was the invention of a barbarous age, by an admixture of ignorance, error, and lawyer craft. It then got interwoven in the language and has been rendered the subject-matter of instruction to the best educated classes and the object of admiration to all classes of the community; the veneration increasing in a direct ratio to the vagueness of the conception, owing to the labour necessary to the attainment of it; and the greater the trouble-bestowed upon any subject the greater is the value attached to the result of the labour. Until therefore, the nomenclature and language of the law be improved the great end of civilized Government cannot be consummated, however devoutly it may be wished.", These are harsh words indeed but I think that they contain a good deal of truth which may not be a palatable one to any draftsman of a statute law. Several years before this editorial criticism of legislative drafting, a great writer, thinker and publicist, James Bryce (later Viscount Bryce) in his Inaugural Lecture delivered at Oxford on February 25, 1871 on entering the duty of the Regius Professorship of Civil Law (reproduced in Chapter XVII of his Studies in History and Jurisprudence Vol. II) observed:  "In the matter of legal expression the superiority of the Romans is scarcely less marked. The power of stating a proposition of law in comprehensive and exact terms, wide enough to cover all cases contemplated, and yet precise enough to exclude cases more or less similar to which the rule is not intended to apply, is valuable to the text writer and quite indispensable to the framer of statutes. Unfortunately it is one of which our statute book bears few traces. Now the legal language of the Romans is a model of terseness, perspicuity and precision, and from a study of it, even allowing for the difference between the structure of the two languages, the English draftsman may derive many valuable suggestions,"  Speaking of vagueness and ambiguity, Sir Ernest Gowers in his little book ''Plain Words" observes in one place that the apparently simple eight words "arising out of and in the course of" employment used in the English Workmen's Compensation Act, 1906 (and reproduced in the Indian Workmen's Compensation Act, 1923) at the instance of the Minister in charge have caused more litigation than any other eight words on the English statute book. In this connection we. may also refer to the apparently simple words ' 'in the course of the import of the goods into and export of the goods out of the territory of India" occurring in article 286 (l) of the Constitution of India which have given rise to conflicting interpretations as to the exact meaning of these words in a number of Supreme Court cases beginning from the first Travancore case.  Much earlier than the opinions expressed above, Blackstone, in section 1 of the Introduction to his Commentaries stated  ''To say the truth, almost all the perplexed questions, almost all the niceties, intricacies and delays (which have sometimes disgraced the English as well as other Courts of justice) owe their origin not to the common law itself but to innovations that have been made in it by Acts of Parliament, 'overladen' as Sir Edward Coke expresses it, 'with provisos and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law'."  (Quoted by George Coode in his book On Legislative Expression or the Language of the Written Law'.—Coode's book was first printed as an Introduction to the Appendix annexed to the Report of the Poor Law Com. missioners on Local Taxation presented to Parliament in 1843.) At the beginning of that book, Coode said : ''The most determined will in the law giver, the most benevolent and sagacious policy, and the most happy choice and adaptation of means, may all, in the process of drawing up the law, be easily sacrificed to the in competency of a draftsman,"  These are very harsh words and in spite of all these severe criticisms, the language of our statutes has not been free from flaws and defects. The main reason is that to express a thing in proper and appropriate language is always a difficult job.  Even to write a good letter requires great skill and art. Letters of Lord Chesterfield and Cowper occupy a high place in English literature. The letters of the Paston family shed clear light on fifteenth century England. As Virginia Woolf pointed out, they were the prose counterpart of Chaucer. Dr. Johnson in a letter to a friend said: "Some when they write to their friends are all affection, some are wise and sententious, some strain their-powers for efforts of gaiety; some write news; some write secrets; but to make a letter with-out affection, without wisdom, without gaiety without news and without a secret, is doubtless the great epistolic art." If this be so with respect to simple letter writing, how more so it is with respect to statute writing. Consider. the problems which law writing raises In the first place, every law passed by the Legislature confers some rights, advantages or conveniences on some or imposes some obligations, duties and liabilities on others. There-fore those who want to get the benefit of a statute will always try to give a wide interpretation to the language of the law go that even those for whom perhaps the rights, advantages or conveniences were not intended might benefit by them. Thus they will try to interpret the law so as to amplify its scope, ambit and content. On the other hand, when a statute imposes any obligation, duty or liability, many will try to so interpret the language of the law as to narrow down its scope, ambit and content in order that they may not be affected by such obligations, duties or liabilities. And language is a very difficult subject; and language is a thing which can be made to mean different matters at different times and according to different circumstances. As Justice Holmes of the United States of America observed in the case of Toune v. Eisner (1917) 245 U S 418 at page 425 -"A. word is not a crystal, transparent and unchanged, it is the skein of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." We should not forget that no law or no Constitution is a printed finality, Man by his subtlety and ingenuity has at different periods of time and in different circumstances given different meanings to the same word or the same language. Then the meaning of words may also vary according to the major inarticulate premises of those whose job it is to interpret the language of the law ', and this may lead to Humpty Dumpty rule of interpretation. Words are a dangerous tool; they must be carefully used by the draftsman. And this requires long training and experience, Macaulay said regarding words —"Words may easily be misunderstood by an honest man They may easily be misconstrued by a knave, What was spoken metaphorically may be apprehended literally. What was spoken ludicrously may be apprehended seriously, A participle, a tense, a mood, an emphasis, may make the whole difference between guilt and innocence." (History of England, Vol. I. Chapter 5.)  In the second place, no law can be made without affecting, by contradiction or amendment, other parts of the statute book or the case law. The new law must be formulated with reference to these, else inconsistencies and litigations may follow. In the third place, the law requires careful definition to embody the intention of the Legislature with the least amount of ambiguity, for the law Courts interpret mainly by following the letter of the law and not by reference to the intention of the Legislature. For how should one discover that intention? By parliamentary debate? (It is vague and one sided); by number voting? (many may not have heard the debate and some may not have under-stood it) Therefore the Courts are wise in looking only to the letter of the law. But this is an era of statutory revolution—an era bursting with the gravest social, economic, political and moral problems. If therefore the law is badly written, the very intention of the Legislature may be defeated. Therefore the statute should be drafted in simple, precise and clear terms so as to reduce ambiguity to the (minimum. In the next place, if a statute ends the legislative process, it begins the administrative. The administrators must have clear instructions. If not, they may either exceed their powers or be timid and confused or public recrimination and litigation may result. (See Herman Finer, The Theory and Practice of Modern Government (1954) p. 471)  Lastly, with the change in the nature and functions of the modern State, the form and content of law have also undergone a radical change; in form, modern law is almost entirely statutory law; in content, it is to use Roscoe Bound's terminology, "socialized" law. A great fart of it is not concerned with questions of right and wrong at all but with matters of expediency, power and procedure designed to bring about all round welfare and improver lent of the community. In other words, the law of the present day, is not so much the lawyers' law as it is administrative law and social and economic legislation in-tended principally to bring about welfare and through welfare, wellbeing of the citizens individually and collectively from material, moral arid spiritual standpoints. Today law is not simply a rule or precept attaching a definite detailed legal consequence to a definite detailed state of facts. Such was primitive and ancient law; such at present are our Criminal law, law of inheritance and succession, revenue and taxation law and to some extent law of property and commercial law. But from the wide range and complex nature of the subject matters dealt with by modern statutes, it is impossible to provide for every detailed state of facts. The law today is in most cases, to remain satisfied with enunciating certain general principles, norms and standards acceptable to society for the guidance of those who are charged with its administration, or with laying down some rules of expediency, policy, powers and procedure. And even here it is not always possible to be very precise and definite. "Reasonableness"', "fairness", "adequacy", "sufficiency", "effectiveness" are themselves vague enough. But these are today regarded as legal standards, and the modern statute book in every advanced country abounds with these. No rule or precept may be laid down defining what is reasonable, fair, adequate, sufficient or effective and as Prof. Roscoe Pound observes, "it would not be reasonable to formulate one". What is fair, adequate or sufficient for a starving man may not be so for a man living in affluence or luxury. According to Roscoe Pound these standards are devices as typical of the recent "socialisation" of law as definite rules and precepts are of the strict law of an emergent political society. Whereas ancient systems of law sought to meet new situations by new rules and precepts, today we are seeking to meet them by applying standards so that the entire community may be brought within the gamut of the law. "The standard is essentially an individualising device; a mediator between rule and absence of rule; a means where by the search may be free of dictation; a means whereby the facts of particular cases may be given weight and yet not be allowed to lord it over later situations" — (Julius Stone, The Province and Function of Law, 591.)  Thus from what has been stated above, it will appear that the writing of statute law in a modern welfare or service State is quite often fraught with many difficulties and there, fore as far as possible it should be entrusted to specialists so that it may be simple, un-ambiguous and free from inconsistencies with other laws including the Constitution. And who is a specialist so far as law writing is concerned? A specialist for this purpose is one who has the quality as a lawyer, who has command over the language in which the law is to be written and who possesses a high degree of general education and experience and whose native talents are also above the average and who is aware of tike "half framed purposes of the time"—the phrase used by Judge Learned Hand of America. To find a draftsman with these qualities is indeed very difficult. Even when a draftsman with all these qualities is available, even then the law writing is a very difficult task for the reasons I have already mentioned. Therefore, guide-lines have been laid down by many eminent authorities. Thus Montesquieu in his Spirit of the Law (L'esprit des lois), XXIX, Chap. 16 lays down the following rules:  The style should be both concise and simple; grandiose or rhetorical phrases are merely distracting surplusage. The terms chosen should, as far as possible, be absolute and not relative, so as to leave the minimum of opportunity for individual differences of opinion. Laws should confine themselves to the real and the actual, avoiding the metaphorical or hypothetical. They should not be subtle, 'for they are made for people of mediocre understanding; they are not an exercise in logic, but in the simple reasoning of the average man'. They should not confuse the main issue by any exceptions, limitations, or modifications, save such as are absolutely necessary. They should not be argumentative; it is dangerous to give detailed reasons for laws, for this merely opens the door to controversy. Above all, they should be maturely considered and of practical utility, and they should not shock elementary reason and justice and la nature des choses; for weak, unnecessary, and unjust laws bring the whole system of legislation into disrepute and undermine the authority of the State. (See C. K. Allen "Law in the Making'' Seventh Edition, page 483.)  Then Bentham observed that a draftsman should try always to avoid "Unsteadiness in respect of Expression," and "Unsteadiness in respect of Import". (Works Vol. III pp. 247 etc. under Nomography). Bentham also said "The language of error is always obscure and indefinite and abundance of words serves to cover a paucity and falsity of ideas. The oftener terms are changed the easier it is to delude the reader. The language of truth is uniform and simple. The same ideas are always expressed by the same terms." [Theory of Legislation, (Hildreth's Edition 1904) p. 87.] These are no doubt golden rules of drafting and many other writers have laid down many other rules but still a perfect law has not yet been written and perhaps will never be written, however competent the legislative draftsman may be, because so long as human frailty and failure are there no human institution including law can ever be perfect. Man has not yet been able to acquire perfection in the use of language and words as he has not been able to acquire perfection in any other branch of learning or discipline.  From what has been stated it is clear that it requires years of training and apprenticeship to acquire some sort of competence in the drafting of statute law. John Austin who is regarded as the father of Analytical Jurisprudence observes in his Lectures on Jurisprudence, (Fifth Edition by Robert Campbell, Vol. II, pp. 1099 et seq) —  "To conceive distinctly the general purpose of a statute, to conceive distinctly the subordinate provisions through which its general purpose must be accomplished and to express that general purpose and those subordinate provisions in perfectly adequate and not ambigous language, is a business of extreme delicacy and of extreme difficulty, though it is frequently tossed by legislators to inferior and incompetent workmen. I will venture to affirm that what is commonly called the technical part of legislation is incomparably more difficult than what may be styled the ethical. In other words it is far easier to conceive justly what would be useful law than to construct the same law that it may accomplish the design of the law-giver.  "Accordingly, statutes made with great deliberation and by learned and judicious lawyers have been expressed so obscurely or have been constructed so unaptly, that decisions interpreting the sense of their provisions or supplying and correcting their provisions exrations legis have been of necessity heaped upon them by the Courts of Justice. Such, for example, is the case with the Statute of Frauds; which was made by three of the wisest lawyers in the reign of Charles the Second: Sir M. Hale (if I remember aright) being one of them."  Recently, Sir Ernest Gowers: observed in his small book 'Plain Words', "The point is that the law, whatever it is about, must be certain. If anyone thinks that he can draft more simply and no less certainly, I advise him to try his hand and then ask an expert whether he can find any loopholes. I have seen eminent members of the Bar humbled by that test. Drafting, is a science not an art; it lies in the province of mathematics rather than of literature and its practice needs long apprenticeship. It is prudently left to a specialised legal branch of the Service."  When Austin wrote about drafting which he called the technical part of legislation, the drafting of statutes had not yet been entrusted to a specialised legal branch. It was only in 1869 that the office of the Parliamentary Counsel to the Treasury was created in the United Kingdom. In the same year through the efforts of Sir Henry Maine who was then the Law Member to the Government of India, the Legislative Department of the Government of India was created and legislative drafting was entrusted to that Department. The present Ministry of Law is the direct descendant of that Legislative Department. As in India and United Kingdom, Bill drafting is in the hands of the specialists in USA, Canada and Australia. In Prance consultation of the Conseild' Etat was made permissive instead of compulsory in 1878 and this is continued by the decree of July 31, 1945. In Weimar Germany, no special draftsmen but the leading departmental civil servants were responsible for Bill drafting. Indeed, this is why legal studies formed so large a part of the German civil servants' training this dispersion of drafting responsibility was criticised as leading to ambiguous clauses and unnecessary addition to the law. In Great Britain, before the creation of the office of the Parliamentary Counsel to the Treasury, Bills used to be drafted by barristers appointed ad.hoc for the purpose and this led to different models and patterns of drafting of English statutes.  I nay recount here a particular incident from my own experience. In the year 1950 when I was in the West Bengal Legislative Department a decision was taken by the West Bengal Cabinet that a new Bent Control Bill should be drafted so that it might, when enacted, replace the existing law on the subject. The West Bengal Revenue Minister at that: time was a young but able person and he used to hold very high opinion about himself. He decided that the new Bill should be drafted not by the official draftsmen but by a very eminent practicing advocate of the Calcutta High Court. Naturally, the draftsmen of the Government including the Secretary of the Legislative Department and myself could not say anything but we were eager to sea how a draft prepared by an eminent advocate of the Calcutta High Court would turn out to be in actual operation. Accordingly, the West Bengal Rent Control Bill, 1950 was drafted by that eminent advocate and it was introduced into and passed by the West Bengal Legislative Assembly. To the delight of the official draftsmen, that Act was severely criticised in one or two cases shortly after its enactment by the Calcutta High Court. So far as I remember, Sir Arthur Trevor Harries, the Chief Justice was one of the Judges who strongly criticised some of the provisions of the new Act and we were indeed very happy because Bill drafting which was our legitimate function was taken away in that particular case by the West Bengal Minister for Revenue.  After that, so far as I know no Bill was given to any outsider for drafting. This simply supports the view expressed by Sir Ernest Gowers and also long before him by John Austin. I am not purposely mentioning the name of the Minister or the name of the advocate, or the name of the Secretary of the West Bengal Legislative Department as none of them is living now. 13. I have already referred to in brief the qualities of a draftsman. He must be a man of strong commonsense. Here theoretical knowledge is not enough for him as it is not enough for any person dealing with the practical affairs of life. A man may have very good and excellent theoretica1 knowledge of a subject but may not have the faculty of judgment to enable him to apply his theoretical knowledge to practical situations. This faculty has been called by philosopher Kant "the specific quality of the so called mother wit." In his Critique of Pure Reason, Kant says in Book II—Analytic of Principles:  "............the faculty of judgment may be termed the faculty............ of distinguishing whether this or that does or does not stand under a given rule ............This faculty is therefore the specific quality of the so-called mother wit, the want of which no scholastic discipline can compensate... .....  ''A physician therefore, a judge or a states-man, may have in his head many admirable pathological, juridical, or political rules, in a degree that may enable him to be a profound teacher in his particular science, and yet in the application of these rules he may very possibly blunder either because he is wanting in natural judgment (though not understanding) and whilst he can comprehend the general in abstract, cannot distinguish whether a particular case in conoreto ought to rank under the former; or his faculty of judgment has not been sufficiently exercised by examples and real practice"  A draftsman therefore must possess the faculty of judgment, imagination and reflection which he may turn to good account so that the law prepared by him applies exactly to those cases only to which it is intended by the Legislature to apply and to nothing more or nothing less. He must have the capacity to envisage as to how the law he is drafting will work in practice. As he drafts a clause of a Bill he will try to draw a mental picture to see how it will operate in relation to millions of citizens and perhaps others too and whether the modus operands laid down in the proposed statute will work effectively in practice. This is indeed a very difficult job.  Then, a draftsman must understand clearly what the administrative Ministry want3 to achieve by the proposed legislation, and whether it will be in consonance with the provisions of the Constitution and the existing laws in the statute book. In other words, before he starts writing a Bill on a particular subject, there must be a complete transfer, once of ideas from the officials of the administrative Ministry or Department to him. Only then he can write his Bill properly. The relationship here may be compared to the relationship between a client and a practicing lawyer. A practicing layer in order to be successful in a case before the court must identify himself with his client's cause so that he should practically forget while conducting his case that he is a different person from his client. Then, there may be some sort of interlocking between various statutes in the statute book on the one hand and the proposed legislation on the other. Unless therefore the proposed legislation fits in with these various existing statutes immense legal and practical difficulties may arise on the enactment of the proposed legislation.  In the next place, the draftsman in modern conditions is to work under heavy pressure. When a nation is on the march and moves forward at rapid strides, the Institutions, agencies and instruments of society must also move forward at rapid strides. Law as one of the' most important social instruments must be able to move as swiftly as the nation moves. And this puts a tremendous pressure upon the draftsman. Those who have not been in this field will not realise the situation of the draftsman under such pressure. The result sometimes is hasty drafting of laws. Faults, blemishes and flaws are bound to occur in these circumstances. Then the administrative departments and Parliament also cannot avoid the blame altogether. A draft even when well. prepared by the draftsman should be carefully scrutinised by the Ministry concerned to see whether it serves their purpose and meets their requirements. But even when approved by the administrative Ministry concerned, the Bill after its introduction in Parliament may be changed in a Select or Joint Committee "of Parliament or by Parliament itself in such a manner that many loopholes and defects which were not in the original draft, may creep in the Bill as reported by a Select or Joint Committee or as passed by Parliament. This reminds me of what the doyen of English draftsmen, Lord Thring, once said that a Bill was made to pass as a razor was made to cut.  In 1973 a Committee was appointed by the British Government under the Chairmanship of Sir David Renton to review parliamentary drafting with a view to achieve greater simplicity and clarity. The report of the Committee entitled "The Preparation of Legislation" (HMSO-Price £ 2.45) was published in May, 1975. It is the first on the subject for a century. It has made a number of recommendations for the improvement of legislative drafting. The Committee does not blame the draftsmen for defect in drafting so much as it does Parliament itself. Large volume of legislation, paucity of time, hasty drafting, absence of careful scrutiny in Parliament are some of the defects which are responsible for defective drafting.  Here it may be pointed out that legislative drafting being a very difficult and complex subject and being in the nature of a science cannot be drafted in a Committee or a Commission. Those who entertain the idea that legislative drafting can be done by a Committee or by a Commission have no experience in the field. In no country the job of drafting can be done by more than two persons. The senior draftsman should himself prepare the first draft and then he should give it to his junior to criticise it as strongly as he can. As one eminent draftsman pointed out that a draftsman must have somebody at his left hand to point out his defects, mistakes and drawbacks. After the drafting is over, it may be scrutinised in a Committee just as it is Dona in a Joint or Select Committee of Parliament. But the actual work of drafting must be done by a single person who will be assisted only by another man having knowledge and experience of drafting statutes.  Another point may be mentioned in this connection. Even when the pressure is heavy, a careful draftsman should make every at-tempt to revise a draft bill as many times as possible within the limited time available to him. "The careful draftsman will not leave bill until he has revised it, and revised it again and again." (Kennedy quoted by Dickerson in his "Legislative Drafting" p. 40) Even a careful Judge rewrites his opinion several times before he delivers it from the Bench. "Brandies often rewrote an opinion a dozen times. Once, Justice Frankfurter tells us, there were fifty-three revisions”. (Cooper in 37 American Bar Association Journal 209.)  One reason for the presence of obsolescent vocabulary in statutes to which the Supreme Court has referred seems to be the fear that a new vocabulary in place of the obsolescent one which has stood the test of time may unsettle accepted journal relations among the various interests and groups in the community and may also lead to the loss of revenue. The draftsman and the administrative. Ministry may not like to take such risk unless a departure from the existing System is clearly wanted. Then, it must be pointed nut that many draftsmen are not bold enough to use new vocabulary in place of old ones. For the reasons stated, a draftsman sometimes acquires the habit of following precedents, sometimes even blindly. By a tradition and timid draftsman precedents are quite after used as a Procreates' bed to which all proposed novelties must be adjusted. This is not a very commendable quality but in view of the heavy responsibility that lies on the draftsman, he sometimes does not like to take any avoidable risk. I may in this con. Nation refer to the language of the Constitution of India. Where the provisions of the Constitution are analogous to the provisions the Government of India Act, 1935 which was drafted by the great draftsman, Sir Maurice Gwyer who later came here as the first Chief Justice of the Federal Court of India, the language of the Government of India Act has been bodily grafted into our Constitution without any change whatsoever.  I have tried to show that statutes in every country have been criticised for bad drafting but as I have shown, the criticism is not always deserving. A proposal may be enthusiastically brought forward and sup ported for bringing about reform in the law or even of society in some material respects, but when it comes to the putting of that proposal in proper legislative form and language, then it becomes a big baffling problem. As "Woodrow Wilson, a former President of the United States of America said in his Constitutional Government in the United States at page 39:  "Action is very sobering to opinion. It is one thing to advocate reforms; it is quite another to formulate them. Many an ardent and burdensome reformer would be silenced and put to better thinking if he were obliged to express his reform in the exact words of a workable statute; and many a statute which amateurs may think eminently workable turns out impossible of execution."  Â

Author Name: Â S. P. Sen Varma