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| M J Antony: What was that again? | | Even judges can't understand what they're saying |
| M J Antony / New Delhi Jul 15, 2009, 00:20 IST |
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If you can't figure out what various laws mean, you're not alone - even judges can’t understand what they're saying.
It is gratifying to find that eminent judges of the Supreme Court are often as confused as ordinary persons when reading some sections of economic laws. These provisions are there, perhaps, to improve the economics of lawyers. The Finance Acts of each year try to plug loopholes pointed out in judgments, making the provisions longer and clumsier.
So we have the judges lamenting last week in Commissioner of Central Excise vs SKF India Ltd: “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 the 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. “There is much scope to reorganise all the different sub-sections of section 11A and to present the scheme of that section in a more coherent and readable form.”
This is not a rare instance. Legal circles think, for instance, that the Arbitration and Conciliation Act is a wise stroke of the law-makers. But the Supreme Court thinks otherwise. It said in Bhatia International vs Bulk Trading SA (2002) that the Act was not well-drafted, leading to contrary judgments by various high courts on its applicability to foreign and Indian awards. The Supreme Court cut the Gordian Knot in that instance to give finality to the law.
While dealing with the Recovery of Debts Due to Banks and Financial Institutions Act, the court said: “At the outset, we find that Rule 12 is not happily worded.” The court had to ‘paraphrase’ the provisions in simpler language to make the rules workable (Union of India vs Delhi High Court Bar Association:2002).
In the Land Acquisition Act, a Constitution bench gave up such efforts and left it to the law-makers to supply omissions in provisions relating to notifications to acquire land after the first one was struck down by a court. “The legislative omissions cannot be supplied by judicial interpretative process,” it said in Padma Sundara Rao vs State of Tamil Nadu (2002).
The court was more blunt in Amco Batteries vs Collector of Central Excise (2003): “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, thereunder, 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, wilful concealment or suppression of facts so as to attract penal consequences.”
In JP Bansal vs State of Rajasthan (2003), referring to the Rajasthan Taxes and Tribunals Ordinance, the court observed: “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.”
The Supreme Court made some sardonic remarks in a civil dispute involving the Kerala royalty, Palace Administration Board v Rama Varma (1980). It said that the rele vant provision has been drafted in 'jaw-breaking fashion' and its cumbersomeness could have been simplified 'had a different type of legislative drafting skill' been brought to bear upon the subject. Justice Krishna Iyer, who is himself known for riding the polysyllabic pony in his judgments, sung an old British Jingle:
I'm the parliamentary draftsman
I compose the country's laws
And of half the litigation
I'm undoubtedly the cause.
He added: “Why only half the litigation, half the frustration too!”
If we think that our draftsmen are ill-equipped to use 'a different type of legislative drafting skill' and Macaulay’s countrymen are better at it, we are wrong. In the category of the most complex provisions, the entry in the Guinness Book of Records is from an English statute. Judges in the English Court of Appeals, dealing with a legal provision, said in a judgment that it was “so obscure that the draftsmen must have been of unsound mind.”
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