Drafters of law must constantly ask themselves what adds value and what does not. There is a need for a balance between possible scenarios that may emerge during its implementation and its readability.
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IN principle, who would disagree with the argument that laws should be written simply? Perhaps no one.
Yet, proponents of ‘simple laws’ in contemporary India are yet to present a framework of what exact changes in terminology and phraseology they seek to propose.
For instance, should the provision on theft in the Indian Penal Code, 1860 merely say ‘No person shall steal from another’, as if echoing scripture, instead of its current definition which mentions dishonest intent and taking moveable property away from another person’s possession, among other things?
Or should the provision on defamation simply say, ‘No person shall harm the reputation of another’ instead of the four explanations and ten exceptions that Section 500, IPC (definition of defamation) currently contains?
At the International Lawyers’ Conference organised by the Bar Council of India last Saturday, Prime Minister Narendra Modi claimed that the Union government is trying to draft laws in a manner simple to understand and make translations of laws available in multiple Indian languages.
Technical but not verbose
The Leaflet recently carried a story about a case where the Allahabad High Court granted bail to two Christians accused of violating Uttar Pradesh’s anti-conversion law.
One of the questions involved in that case was who can file a complaint about an unlawful conversion under the Uttar Pradesh Prohibition of Conversion of Religion Act, 2021.
Consider the wording of Section 4 of the Act:
“Any aggrieved person, his or her parents, brother, sister, or any other person who is related to him or her by blood, marriage or adoption may lodge a first information report of such conversion which contravenes the provisions of Section 3.”
For context, Section 3 defines what constitutes an unlawful conversion under the Act.
The question before the high court was can the words “any aggrieved person” at the outset of the provision be read in isolation to mean that any person who considers themselves aggrieved, but may not be personally aggrieved, file a complaint under the Act?
The high court rejected this interpretation. The complainant has to be a person “personally aggrieved by (their) fraudulent conversion” or a person related to them through blood, marriage or adoption, the high court said.
The high court added that any interpretation to the contrary would render the remainder of the provision “wholly redundant” and the provision itself “completely meaningless”.
There is another problem with the wording on which the high court did not comment. Why include “parents, brother and sister” when such relations are covered by the phrase persons related to the aggrieved by “blood, marriage or adoption”? Their addition serves no purpose in the provision except to increase its length.
So it is not that proponents of brevity and simplicity in law do not have a point.
But there is a strong argument to be made for technicality and formality in laws, since these aspects bring precision and allow for the inclusion of nuances. Technically worded laws take into consideration possible scenarios that might emerge during their execution.
Yet, it is often seen that in pursuance of formality, the readability of a legal document suffers.
In cases where a question of interpretation reaches the higher judiciary, judges are compelled to decipher the purpose of a legislation to determine the most appropriate interpretation.
At the same conference last Saturday, Supreme Court Justice Sanjiv Khanna asked, “Should law be a puzzle that needs to be solved? Laws are meant to resolve disputes, not become disputed themselves. Law should not be a mystery to the common man. Law is not written as an edict meant for the legal experts.”
Indeed, laws should not be a mystery that needs to be solved on a case-to-case basis and laws are meant for the general public, and not only for lawyers and judges.
It should not be a contest between the State and the citizenry on who can win on technicality, since in that contest, the rule maker and their intent holds considerably higher weight.
Therefore, drafters of laws must constantly ask themselves what adds value and what does not. Laws should have nuances but not be verbose. They should be simply written, but not so much as to leave crucial aspects undefined or unexplained.
Duty to summarise
The Union government has a pre-legislative consultative policy through which drafts of Bills are presented to the public for scrutiny before they are introduced in a legislature.
As part of this policy, any law proposed by any legislative body, as soon as its first draft is ready, must be summarised into a document. This can be done by a dedicated department from the Ministry of Law and Justice or through the constitution of similar departments by state governments and Union territories.
In case of states and Union territories, such departments should be tasked with translating these summaries into local languages.
Another document can be publicised after a Bill is passed and acquires the assent of the governor or the President, as the case may be.
Since the law is not merely what is contained in statute books, and rulings by high courts and the Supreme Court have the effect of law, these ‘official summaries’ and their translations could include relevant case laws too.
A person wanting to know if something is legal or not should be able to rely solely on that document to get the required information.
