Legislative Drafting - RMP treating Ebola?
THE other day a judge remarked that the babu made tax laws are like the RMPs treating Ebola. It is said that laws are drafted by an inexperienced lawyer or a partly experienced lawyer whose drafting duties are a mere incident to his other duties Certainly the most fertile single source of confused, difficult-to-read, over lapping and conflicting statutes is the lack of uniformity in approach, terminology and style. The ravages of heterogeneous authorship appear to be large . Laws are drafted by people who, however good they may be in their substantive specialities, have only fleeting acquaintance with the expertise required for good drafting.
Justice Brijesh Kumar says, Legislative drafting, in itself, is a subject for serious study, but unfortunately, it appears that in India, required attention commensurate to the importance of the subject has not yet been given to it. By and large, drafting of statute is generally in the hands of those who do not have specialized training and experience in drafting, so to say, in the hands of law-knowing "laymen in drafting”.
A legislative draftsman has to be a very knowledgeable person. He must have a grip over the Constitutional provisions. He must have good knowledge of substantive laws as well, previous legislations and current pronouncements of the Courts of Law. He must also have in mind the likely future need and how to provide some play in the provisions to cover such future exigencies without impairing the present purpose for which the legislation has been sought. The scope of the provisions cannot be too much narrowed down, nor too much expanded. He has to strike a balance on the whole .
Language is the most difficult part of legislation drafting and that unfortunately is now in bad shape. Recently the Larger Bench of the CESTAT was hearing a huge Service Tax case for five days and the whole problem was the meaning of certain words and phrases. Language draws a series of mental pictures in the mind of the person hearing the words spoken. These pictures are sometimes fairly well defined and sometimes blurred in outline, but they are never very precise. Language is a medium, which disdains mathematical rules.
More than a decade ago I had interviewed Rama Devi (a former Governor of two States), the first woman draftsperson to join the Law Ministry's Drafting Section. She went on to become the Secretary of the Department and was an acclaimed draftsperson. She told me that law drafting has to be learnt in a guru shishya culture.
She initiated the establishment of Institute of Legislative Drafting and Research (ILDR), which imparts courses on Legislative Drafting. This little known but vitally important institution functions without much fuss and publicity from an unknown room in the Shastri Bhawan, New Delhi.
Maybe our tax laws would be better if our IRS officers take frequent courses in this institute.