SIMPLICITY OF LANGUAGE The legislation to be understood by all concerned, must be drafted in simple language. The language which is precise, concise and direct. The four principal qualities which contribute to the simplicity oF language are— is Scanned with Camscanner(a) economy of words, (b) directness, (©) familiarity of language, (a) orderliness, Economy of words—in legislation, needlessly is not merely a tedious imposition upon the time and attention of the reader, it creates a danger because every word used in a statute is construed so as to bear a meaning if possible. If one word will communicate the intended sense exactly, two words or more should never be used. Examples : word used without purpose or Sections 7 and 8 of the Environment (Protection) Act, 1986 (29 of 1986) can be considered as the best examples of this. “7. No person carrying on any industry, operation or processes shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed. 8. No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.” Section 7 use the minimum words signifying the offence created under the Act. The words ‘industry’, ‘operation’ and ‘process’ used in the section unambiguously convey the exact and the only deducible meaning that it means industry carrying out any manufacturing operation oF process. Likewise section 8 specifies that no person shall handle any hazardous substance otherwise than in the manner prescribed and in doing so the minimum words have been used. Inclusion of these simple penal provisions in the Act has made it simple and precise Section 25 of the Act likewise simplify the rule making power of the Central Government. Sub-section (2) thereof enumerates the matters for which the rules can be made. For example section 25 (2) (a) empowers the Central Government to make rules to prescribe the standards in ‘excess of which the environmental pollutants cannot be discharged or emitted under section 7. This simplicity as well as economy has created many hurdles in the implementation of the Act. One obvious reason for this is the federal structure of India making it rather difficult for the drafter to make detail provisions signifying the authorities who shall exercise these powers with sufficient clarity. Result is the recent directions of the Supreme Court of India in closing down the number of industries, in and around Delhi, for blatant violation of the Scanned with CamScannerenvironmental requirements'. As against this background, the environ- mental protection legislation in the countries like Trinidad and Tobago tackle the subject much more effectively. The Trinidad and Tobago Environmental Protection Legislation makes a provision for preparing a national plan for protection of environment to be placed before Parliament of that country. After the acceptance by Parliament it becomes final for a period of years and unless and until amended by Parliament its provisions are binding. The Act was modelled initially on the lines, ‘of Western Australia Model. The economy of words, though a cardinal principle, may not always be successful in a given circumstances. Directness—Writing must be straight and devoid of circumlocution. When a power or duty is conferred or imposed, the identity of the person on whom it is conferred or imposed should be immediately apparent. Expression in passive voice may lead to a lack of directness. Examples : A classic example of this is the Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986). The legislation is direct and avoids any circumlocution. It defines divorced Muslim woman, lays down the conditions as to her entitlement of dower and reasonable and fair provision (ie. funds) and maintenance to be made available to her within a specified period. It also mentions that it is the Magistrate who will take Cognizance of the offence under the Act and also applies the Code of Criminal Procedure, 1973 (2 of 1974) to the provisions of the Act. [See - The Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986) — Annexure I of this Chapter] Familiarity of language—The familiar word must be used or preferred to the unfamiliar word. What is familiar will be more easily communicated and understood. The familiarity here refers to the Tanguage used in the country’s statute book. The drafter shall not deviate from the normal usage unless context requires it. Examples : Section 4A of the Dowry Prohibition Act, 1961 (28 of 1961) as inserted by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986). 4A. Ban on advertisement—If any person— (a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative, Scanned with CamScanner(b) prints or publishes or circulates any advertisement referred to in clause (a), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees: Provided that the court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months. Section bans advertisements for demanding dowry in a plain, familiar and simple language. Section 8A of the Dowry Prohibition Act, 1961 (28 of 1961) as inserted by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986), similarly provides for the prosecution of persons taking or abetting the taking of dowry— 8A. Burden of proof in certain cases—Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him. Sections 11 and 12 of the Act 43 of 1986 respectively insert some entries in the First Schedule of the Code of Criminal Procedure, 1973 (2 of 1974), and section 113B in the Indian Evidence Act, 1872 (1 of 1872). The entries inserted in the First Schedule of the Code of Criminal Procedure, provide in familiar language that the offences relating to dowry deaths shall be ‘cognizable and non-bailable. Similarly section 113B inserted in the Indian Evidence Act, 1872, incorporates, in a clear language, the presumption that the person who had subjected a women to cruelty or harassment for, or in connection with, any demand for dowry the court shall presume that such person has caused the dowry death. Sections 11 and 12 of the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) are reproduced below: 11. In the Code of Criminal Procedure, 1973 (2 of 1974), in the First Schedule, after the entries relating to section 304A, the following entries shall be inserted, namely:— [Section Offence Punishment Cognizable or Bailble or By what Non-cognizable nonrbailable Court triable 1 2 3 4 5 6 “303 Dowry Imprisonment of Cogaizable _Nowbailable Court of, death not less than seven Session” years but which may extend to impsi- sonment for ile Scanned with CamScanner12, In the Indian Evidence Act, 1872 (1 of 1872), after section 113A, the following section shall be inserted, namely:— 1138, Presumption as to dowry denth-—When the question is ther a person has committed the dowry death of a Wot and it shown thal soon before her death such woman had been subjected by stich person to cruelty or harassment for, of in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death, a Explanation.—For the purpose of this section, “dowry deat shall have the same meaning as in section 3048 of the Indian Penal Code (45 of 1860). 7 ‘The real challenge that the drafter had to face was to provide for stringent provision for bride burning and dowry death and at the same time to draft the provision in a familiar language. ‘The ingredients necessary for the commission of an offence of dowry deaths were — (@) when the death of a woman is caused by any burns or bodily injury, or (©) occurs otherwise than under the normal circumstances, ‘The drafter had also to consider that this must happen within seven years of woman's marriage and immediately before the death of a woman she was subjected to cruelty or harassment by her husband or his relatives. The last and most important factor was that this should have connection with demand of dowry. Section 304B inserted in the Code of Criminal Procedure, 1973 (2 of 1974) by section 10 of the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) was, therefore, drafted as follows:— 3048. Dowry death—(1) Where the death of a woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called y death”, and such husband or re caused her death Explanation —For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Aci, 1961 (28 of 1961). “dowry lative shall be deemed to have Scanned with Camscanner2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. This is one of the example how the drafter can use the familiar language while achieving economy of words and still skillfully meet the objects of the legislation. Section 304B came under critical scrutiny of the Supreme Court of India in Pawan Kumar v. State of Haryana.’ The Supreme Court had taken into consideration all the above ingredients on the basis of which the drafter had drafted the section (For details see Annexure II of this Chapter) Orderliness.—An orderly approach is an invaluable aid to intelligibility. If the material is dealt with in a planned manner and in a logical sequence where appropriate, the writing will flow and be more readable and thus more readily comprehensible. It is quite impossible for a draft legislation which lacks orderly structure to be simple or elegant. The drafter shall normally observe the following rules in structuring the draft legislation to make it simple and concis (1) The provisions of an Act must be arranged in a logical order. However, it must always be borne in mind, especially when. drafting amendments to an existing Act. (2) The parts of an Act are normally arranged in the following order:— (a) Long title; (b) Preamble, if necessary; (c) Short title and commencement; (d) Provisions defining the area of application; (e) Definitions; (f) Provisions of the Act beginning with those that state the general principles followed by the exceptions; (g) Implementing powers; (h) Penalty provisions; (@) Consequential amendments, including repeals; (j) Transitional provisions; (k) Schedules; ()) Forms. Scanned with CamScannerThe order suggested here is based on Indian practice. Other arrangements should also be acceptable. It is important to adopt a structure and to apply it regularly so that readers—ministers, parliamentarians, lawyers, members of the public—can go Almost instinctively to the beginning or end of the Act to find the provisions they want. @) In addition to making it easier to systematize the body of legislation, use of an established structure helps a new drafter who has just joined the drafting team. The choice of names for the parts of the structure is a matter of convention. Moreover, the structure does not reveal the most important logical rule, which must determine the order of the parts referred to in paragraph (f). As far as possible avoid referring to a later ppart in order to explain the part that is being read. The apparent simplicity of this rule conceals the difficulty of applying it (4) The stages of a procedure must be presented in their chronological order, the grant of a permit before its cancellation, the making of an application before its review and the creation of an organisation before its powers are conferred on it. (5) The movement should be from the general to the particular, it must also be seen that the movement should be from the law to the procedure, from the rule to the exception, from the permanent to the temporary, from the abstract to the concrete, from the normal to the exceptional. In each case the movement should be flexible and orderly without any vacuum or gap. (6) The Act will first state the rule and then indicate the authority responsible for applying it and the procedure to be observed in applying it followed by the penalty for non-compliance. (7) Repealing is also legislating. It is important to stress the importance of the repeals and transitional provisions. The new ‘Act cannot simply be added to the existing laws because this would force lawyers to conduct painstaking research. (8) One important task for the legislative drafter is to indicate clearly the position of the new Act in the legal system Provisions that are replaced must be expressly and accurately repealed and the threads of the new Act must be woven delicately into the existing legal fabric. (9) Acts must never be allowed to become obsolete. They must Pe repealed, corrected, kept in force or integrated into others Scanned with CamScannerObsolete Acts are dust on the bod! of time, they could well impede it pene ga 1 the course ; 5 application, (10) Transitional provisions deal with situati the new Act comes into force, sometim e , sometimes by keepir rules in effect and sometime by making the new fe opoly retroactively ot immediately. A clear expressions of the desired legal situation is essential, ae ions that exist before (11) The provisions of the Act that are of a permanent nature shoul precede those expected to have a limited life, This rule depends on long-term foresight and will simplify the work of future drafters; these provisions will also soon lose their interest for readers because of their temporary nature. (12) The Act is preceded by a content or arrangement of sections showing the headings and the section titles. The arrangement of sections or content is a tool to give readers an overview of the Act. It is also an excellent drafting tool. This outline of the skeleton of the legislation will show the gaps, contradictions or any shortcomings in the scheme of the legislation. It makes it easier to improve later versions of the draft legislation. The preparation of a content or arrangement of sections is a useful exercise in itself in improving the quality of the Bill as a whole. (13) The content or arrangement of sections is also important from the viewpoint of the reader of the Act. The drafter must not forget that the Bil is designed to be read by several “levels” of reader, namely the minister who will table it, the parliamentarian who will examine it the member ofthe public eer wll read it, the Iawyer who will analyse it and, finally, the judge who will apply it (14) The arrangement of sections is not part of the Act but is included to make it easier to consult. 15) The Act is divided into parts only in those cases where the (5) The Act ied inlets gg TMtegories constituting adequate conceptual units justifies this: sate Boston of an Act consisting of only a few pages into parts ives a legislative ‘ar’ to 2 Bill but is not justified because i Fee not make the statute easier to understand, (46) Only Codes and other major Acts are divided into Chapte Divgion into Chapters is a very old tradition. Division of an aio Chapters is always useful as it splits the Act into Sand thus helps in its understanding. division: Scanned with Camscanner(17) The section is the basic part of an Act. It communicates a simple ot complex idea to the reader in one or more sentences. The sections of an Act are numbered consecutively in Arabic numerals, whether or not the Act is divided into parts, (18) The sections are to be divided into sub-sections and paragraphs, The section is the basic part of the Act. The section must be brief and the drafter should not strive to increase the number of sections. The section in a statute corresponds to one conceptual clement. Usually, a section will consist of a single sentence. However, it would be completely inappropriate, to lay down a rule prohibiting the use of more than one sentence in a given section. (19) References within a section along the lines of ‘The application referred to in sub-section (1)’ should be avoided. They are often unnecessary and make the Act more cumbersome and seem are added solely to make the Act seem more ‘legal’. It is preferable therefore to replace an expression like ‘The application referred to in section 13’ with ‘The required application’. (20) Sub-sections are numbered with Arabic numerals in brackets preceded by the number of the section of which they are part. (21) Paragraphs are indicated by Roman letters placed in brackets. (22) Each part should be separated from the preceding one by a space between the lines. It should be noted that it is important to choose an arrangement and that this be uniform and systematically applied. (23) Sections and sub-sections must be as short as the clarity and quality of the statements will allow them to be. (24) An Act should never be renumbered when it is amended (25) Sections may be arranged under a heading to the extent that they deal with the same subject-matter and if the addition of the heading makes the Act easier to understand. (26) The headings are placed in the centre uppercase letters (27) A section and each of its sub- marginal note in bold letters. (28) The marginal note of a section is short contents. It does not summarize the sectior the key words. of the page in bold sections are preceded by a and descriptive of its n but merely indicates Scanned with Camscanner(29) The marginal note of a section normally should not contain any verbs. In addition to helping the reader, a marginal note imposes greater discipline on the drafter. Its apparent simplicity hides the fact that in many cases it is harder to draft marginal notes than to draft the section or sub-section they precede. Thus, 2 marginal note of a section that needs to be unusually long in order to describe the provision it precedes alerts the drafter that this provision should be divided into several separate provisions. (G0) Schedules contain lists of items that are not included in the ody of the Act because this would make it difficult to read. G1) They are numbered consecutively in Arabic numerals and the heading of the Schedule is followed by an indication in italics of the provision of the Act to which they refer. The use of a Schedule is quite simply a technique that allows the drafter to leave to the end of the Act lists of items whose inclusion in the body of the Act would make it difficult to read ‘A Schedule has the same legal value as each of the sections of the Act. It should not be confused with subsidiary legislation such as regulations, which are made either under a general regulatory power or under an express delegation of rule making power in order to implement the Act and to set out the details Of its application. Nor is it a ‘supplement’ that was added to the Act. (@2) Since an Act is prescriptive only for the future and any retroactive application is an exception, the sections that prescribe a special method of application must be express and sufficiently clear. (33) The rules for calculating the time for enforcement of legislation, before a specified date, following a specified date or from the occurrence of an Act must be expressed with the greatest possible precision and uniformity. Example: A simple but an apt example of the orderly handling of the subject is the Indecent Representation of Women (Prohibition) ‘Act, 1986 {see Annexure III of this Chapter]. The long title to the Act provides the purpose of the legislation which is to prohibit indecent projection of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith. The definition of Scanned with Camscanner“indecent representation of women” was the main theme of the legislation and defining this phrase at the beginning of the legislation was essential. The definition runs as follows:— (c) “Indecent representation of women” means the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have effect of being indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or injure the public morality or morals. Then follows the main provision of section 3 prohibiting Publication of advertisements followed by prohibition, production, sell, distribution or circulation of indecent publication (section 4). This is followed by power to enter and search any provisions for offences and penalties. This step by step approach gives a reader a complete idea about the subject-matter of the statute. This orderliness is, therefore, of utmost importance in dealing with the subject- matter of the legislation. Scanned with CamScanner