<b>M J Antony:</b> Muddled draftsmanship

Certain words that are defined vaguely become a nightmare for judges

Cynics would say that half of the litigation is the result of bad legal draftsmanship. The lawyers make a rich harvest out of it. The judges have called it their nightmare. In two high-profile cases in the Supreme Court last week, judges seemed to grope in the dark for a black cat that did not exist, while dealing with certain terms in the Representation of People Act (RPA), the Prevention of Corruption Act and the Delhi Special Police Establishment Act ('CBI Act').

While asking for a review of the Supreme Court judgment barring criminals from standing for elections, the government counsel tried hard to distinguish between the words "elector" and "voter". None was wiser after half an hour of laboured explanation. The RPA does not define a voter, to start with. Then how can a distinction be made? The judges remarked at the end that the law was "clumsily drafted". Such a poor rating for a long-standing law that is crucial to the democracy.
 

In another court, the "coalgate" case was being argued with judges stumbling on words such as "sanction" and "approval" for prosecuting government functionaries for malfeasance. The Prevention of Corruption Act talks about "sanction", while the CBI Act refers to "approval" of the authorities. The lawyers also quibbled on the difference between "enquiry" and "investigation" in the Criminal Procedure Code. Those who watched these scenes could only wonder, "what the Dickens?"

Fuzzy illogic legislation hit the courts at all levels and in several situations. Two years ago, for instance, the Supreme Court pointed out a big hole in the Civil Procedure Code that affected alternative disputes resolution mechanism (Afcons Infrastructure Ltd vs Cherian Varkey). Section 89 provides for five modes of alternative disputes resolution - arbitration, conciliation, judicial settlement, including settlement through Lok Adalat or mediation. One of the several anomalies, according to the judges, is the mixing up of the definitions of "mediation" and "judicial settlement".

"When words are universally understood in a particular sense, and assigned a particular meaning in common parlance, the definitions of those words in Section 89 with interchanged meanings has led to confusion, complications and difficulties in implementation," the judgment remarked. "The mix-up of definitions of the terms 'judicial settlement' and 'mediation' is apparently due to a clerical or typographical error in drafting, resulting in two words being interchanged."

Some years ago, in its judgment in the Salem Bar Association case, the court pointed out another gaffe that placed the defendant's witness in place of the plaintiff's witness. Is it a printer's devil or a case of bad typist? Courts of first instance might still be confounded by the jumble. They would not have read the solution suggested by the Supreme Court: "To avoid confusion, we direct that till the legislature corrects the mistake, the word plaintiff's witnesses would be read as defendant's witnesses in Order VII Rule 4. We, however, hope that the mistake would be expeditiously corrected by the legislature."

There are hazy patches in economic laws, which delight no one except corporate lawyers. In the its judgment, Commissioner of Excise vs SKF India, the Supreme Court observed: "If the object of the law is to state clearly and unambiguously the obligations of the person whom the law addresses and to spell out plainly and without any confusion the consequences of failure to discharge the obligations cast by the law, then four sections of the Central Excise Act fall miles short of the desired objective. Even, as originally cast, the provisions were far from very happily framed and worded. Subjected to amendments from time to time, those provisions have now become so complicated that in order to discern their meaning, it becomes necessary to read them back and forth several times." The judges were talking of Sections 11A, 11AA and 11AB of the Act.

The Arbitration and Conciliation Act also makes the judges wring their fingers for meaning. It gave poor marks for the law in the case, Bhatia International vs Bulk Trading case. It remarked that the Act was not well-drafted, leading to contrary judgments by various high courts on its applicability to foreign and Indian awards. The Recovery of Debts Due to Banks and Financial Institutions Act is another statute bristling with ambiguities.

In one case, Amco Batteries vs Collector of Excise, the court said: "It is apparent that in taxation matters, amendments, clarifications, exemption notifications or their withdrawal play an important role in increasing litigation. Repeatedly, it is stated that law and procedure is required to be streamlined and simplified. Yet clarifications, amendments and notifications are issued creating confusion and leaving judges and lawyers to search for their meaning. In such a state of affairs, in some cases, it is difficult to draw the inference of fraud, willful concealment or suppression of facts so as to attract penal consequences."

These are only specimens; there are rows of them. In JP Bansal vs State of Rajasthan, referring to the Rajasthan Taxes Ordinance, the court lamented: "The tragedy is that although in the matter of correspondence or conversation the person who has used the language can be approached for clarification, the legislature cannot be approached after enacting a law… it is necessary that the statute is expressed in clear and unambiguous language. In spite of courts saying so, the draftsmen have paid little attention to it."