Saturday, Nov 22, 2014

Our poorly written Lokpal

Posted: January 15, 2014 12:45 am

parl-m

The 2013 bill passed by Parliament is sloppy, complex and unreadable.

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 continued…

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