The legal profession confers on provisions of law the reverence demanded by religious texts. Lawyers can often be found in courts elucidating legal phrases like a scientist explaining a classic theorem. Even blunders made by draftsmen and typographical gaffes retained in statutes for decades do not dilute their sacred fervour. The Supreme Court says that such forensic foul-ups could be the “trial judge’s nightmare”.
The latest instance in which the judges had to scratch their heads and ask themselves “what the Dickens?” is that of a judgment last week dealing with commercial arbitration. The Afcons Infrastructure Ltd vs Cherian Varkey case raised the question whether the court can order the parties before it to go for arbitration even when there is no such clause in the agreement. The answer was no.
However, the Supreme Court had to tread carefully through a crucial provision in the Civil Procedure Code (CPC) to arrive at the answer. The reason was that the long provision drafted with clumsy clauses and sub-clauses had to be ironed out before it could be made functional. Arbitration as an alternative disputes resolution mechanism has attained great relevance, but this provision had been in the statute since 1976 without anyone noticing the vexation it caused to judges in the civil courts.
Section 89 of the CPC provides for five modes of alternative disputes resolution — arbitration, conciliation, judicial settlement, including settlement through Lok Adalat or mediation. But the first anomaly, according to the judges, is the mixing up of the definitions of “mediation” and “judicial settlement”. It makes no sense to call a compromise effected by a court as “mediation”. Nor does it make any sense to describe a reference made by a court to a suitable institution or person “judicial settlement”. Mediation is a synonym for conciliation, in legal parlance.
“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.” The rules will be clear only if the words are in their right places.
It is not clear whether the court was indulging in euphemism or tickling the lawmaker’s ribs when it attributed the serious error in law to a humble typist. But one can be sure that the draftsmen and the lawmakers would miss the point. Their past conduct regarding the same code ensures that.
Five years ago, the Supreme Court pointed out another error in CPC, in its judgment in the Salem Bar Association case. The bad typist, or the printer’s devil, mixed up the phrases, defendant’s witnesses and plaintiff’s witnesses in the 1976 amendment. The confusion confounding the subordinate judges since then cannot be easily imagined.
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The court cut the Gordian knot thus: “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.” The trust was misplaced and the hope was belied.
The civil courts normally do not hear about Supreme Court judgments for many years as they have no funds to buy law journals or shelves to keep them, let alone a library. So, many judges might still be struggling to make sense of the wrong phrases left in the statute, despite the alarm bells from the Supreme Court.
It is not just this code that suffers from bad draftsmanship. There are several instances when the court proposes and Parliament disposes. In last year’s Commissioner of Excise vs SKF India case, the 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.”
About the much acclaimed Arbitration and Conciliation Act, the court stated in its judgment in the Bhatia International vs Bulk Trading case, 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 criticised for its inaccuracies. These are only specimens; there are rows of them.