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Book Review
The art of drafting law
LEGISLATIVE DRAFTNG — Principles and Techniques: B. R. Atre; Universal Law Publishing Co., C-FF-IA, Ansal's Dilkush Industrial Estate, G.T. Karnal Road, Delhi-110033. Rs. 290.
WE ARE slaves of the law that we may be free and everyone is deemed to know the law. Both these prepositions are fictions; nevertheless, held binding for practical reasons. Obviously, legislative literature, which governs our activities in almost all spheres, has a considerable control over our lives and puts every citizen on the alert to obey the law. Ignorance of law is no excuse. The democratic State must, therefore, make the meaning of legislation easily legible especially because legal literacy is limited in our people. The paramount social value of juristic lucidity and legislative clarity springs from the need to avoid the litigative potential and interpretive ambiguity of ill-drafted bills. A popular English jingle once published in London Times enlivens my criticism:
I am the parliamentary 0
draftsman;
I compose the country's laws.
Of half the litigation in the nation,
I am undoubtedly the cause.
I am reviewing here a learned work on legislative drafting where, in a little lovely foreword, Justice Lahoti begins with a neat quote. The learned judge writes: G. C. Thornton began his preface to the first edition of his work of Legislative Drafting by quoting Gulliver — `This society has peculiar cant and jargon of their own that no other mortal can understand and wherein all their laws are written, which they take care to multiply'. Preface to the third edition commences by quoting the wisdom of a car bumper sticker observed in Queensland `Do it today. Tomorrow it may be illegal'. The two quotations taken together speak volumes about the fast changing pace and complexity of laws, the need for settling principles of legislative drafting and the uncertainty which is likely to prevail in the absence of clarity and precision in legislative drafting.''
I wholly agree. Some laws are long, involved, anfractuous, and so incomprehensibly hedged in with exceptions, explanations, provisos and sub-clauses that by the time the reader reaches the end, his mind will be in mid-air, the beginning having taken leave of his fatigued attention. Simplicity amidst complexity in the text of the law is an art, a value, a democratic desideratum, since law cannot be abracadabra.
Courts usually complain that legislations are obscure, ill-drafted and create conundrums. While the impression is partly justified because of the riddles and mystiques of legalese and the use of enigmatic jargon, they create an iron curtain between the layman and legislation. Unfortunately, the Westminster style of drafting laws is what we have adopted and even today these winding vintage methods vitiate our bills. However, judges too are to blame because they do not bother to adopt a `Brandeis' approach of seeking the social milieu, the mischief sought to be remedied and the object proposed to be advanced. Lexical dexterity is not imaginative interpretation when the need is socially sensitive penetration of the purpose of the law. An etiological perception, missing in judicialese, is the imperative need. Here, Lord Denning, that jural marvel of a judge has set the record straight. The author, B.R. Atre, has wisely excerpted this passage in his preface.
Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise; and that, even if it were, it is not possible to provide for them in terms free from all ambiguity.
English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of the Acts of Parliament have often been unfairly criticised by the judge (stress added), believing himself to be fettered by the suppose rule that he must look to the language and nothing else and laments that the draftsman have not provided for this or that, or have been guilty of some or other ambiguity.
It would therefore certainly save the judges trouble if Acts of Parliament were drafted with divine precision and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsmen. A judge must not alter the material of which it is woven but he can and should iron out the differences.
The long legislative experience of the author has been an invaluable aid for him in enunciating the principles and techniques of legislative printing. His chapter-wise handling of a complicated subject certainly does credit to his rich familiarity with it. There is a practical dimension to the author's instruction when he deals with basic techniques of legislative drafting. The drafter — a gender-neutral word — the author rightly emphasises, must follow a dedication to simplicity and clear thinking.
Illustratively I may mention but one of his prescriptions, among many: "A statute is drafted in accordance with the rules of grammar that normally apply to every document. It should be seen that the terminology used must also be as simple as possible, depending on the complexity of the subject in question. Expressions borrowed from foreign languages must be kept to a minimum. The drafter's responsibility is very great in terms of terminology, especially in technical and scientific fields. The statute must use correct language. The drafter must suggest to the legislature the best way to make it understandable to the public".
The other "commandments" the book contains are educative. The governing rule is that the audience of the bill must understand the sense; and the style must observe "consistency, coherence and clarity". Then, again, a few among many prescriptions may be noted!
The law should avoid any designation of gender. A statute speaks to both women and men and expressions that appear to refer only to men should be avoided. Clearly, some provisions will apply to only men or only women. Thus, a statute governing the working conditions of working women will necessarily make a distinction on the basis of the gender of the persons concerned.
It must be remembered that the meaning of a provision is not dependent solely on its punctuation. Punctuation is an element of the sentence. However, if the meaning of a provision can be changed simply by changing the punctuation the provision must be rewritten.
It is preferable for an Act to speak in the active voice. Moreover this is essential when a duty is imposed or a power is conferred. Use of the passive voice should not automatically be rejected. It is perfectly justified in case of general prohibitions or where the context clearly designates the persons responsible for applying the rule.
An Act speaks in the present tense. The future and the past are used only to express the temporal relationship between two events.
An Act does not express desires, wishes or justifies. It orders, authorises, prohibits, governs or imposes penalties.
Different words must not be used to express the same idea. The same word must not be used to express different ideas. In legislative drafting, monotony is a positive quality.
The chapter on techniques is replete with numerous recipes. Highly instructive and easily acceptable directives make the chapter on basic techniques a bible for the beginner in the job.
To dwell on more details may make the review a mini-textbook and so I desist. Says the author: "The drafter shall normally observe the following rules in structuring the draft legislation to make it simple and concise''.
Other useful and pragmatic hints galore are prescribed. Good; but "a custom more honoured, in the breach than the observance in our statutes."
Every time a drafter has a bill to be drawn up he must remember the golden rules of Atre but the challenge is not easy unless radical changes in the methodology are adopted. Moreover, when the highest court reveals a flaw, the law must, without delay, be altered so that the goal of the legislature is not defeated by judicial misreading.
After all, the law is what the judges say it is. There must be an institutional courier between the court and the Legislature to convey the message, from the Bench to the Chair, to avoid miscarriage of statutory intent.
The anatomy of a legislation is worth a close study before a draftsman can play the creative craftsman. This aspect has claimed a whole chapter with an apt annexure of the General Clauses Act, 1897.
An edifying addition is the study of the preparation of the legislative scheme with a grasp of the subject-matter, varying as it does in our complex society, necessitating a versatile wealth of special information. Foreign legislations are a fascinating fasciculus supplied by the author to illumine the technology of legislative preparation and schematic arrangement.
A significant part of the book is devoted to drafting of Constitutions, a difficult, delicate and spinal process to master, which is necessary to make a competent draftsman.
Elaborate attention is paid to this branch since all corpus juris must submit to the values of the Constitution. Inevitably judicial review figures in the discussion.
Federalism, unitary State, their fundamental features and the key rules to be considered while drafting constitutional instruments — all these have been briefly but adequately dealt with by the author.
On the whole the book is a good one, especially useful in a rare field of legal literature, where a good addition has a special attraction.
I commend Atre's contribution to judges, lawyers, legal draftsman and law teachers for equipping themselves better in an area where more such books are needed dealing with other dimensions of the jurisprudence of legislative draftsmanship.
V. R. KRISHNA IYER
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