Drafting of Future Laws


By the time this write – up reach to your hand, you may have read Report of Financial Sector Legislative Reform Commission and draft Indian Financial Code. Now, there is a high focus on this proposed law and deliberations are in plenty.

I call your attention to Chapter 2.3 of the report! This is titled “Approach to Drafting” – a very good read for all student of drafting, which we are.

Indian legal drafting follow a set colonial pattern. We all are familiar with this “authoritative as well as negative style of drafting”. This familiar drafting style uses compound and archaic words. Here, we use “not more than”, “not less than”, “Notwithstanding”, “shall” and other open – ended terms. This is certainly not international practice.

Internationally, we use “plain and simple” drafting technique. This is practice to avoid complex, archaic phrases and legal jargons. A layman may understand the meaning of this drafting language and interpret with logical mind. It brings clarity to any reader. This technique needs balance of simplicity and precision.

The fundamental objective of drafting is to convey. Where, a layman needs a middleman to understand a draft, does it properly convey?

When we are approaching international markets and international relations, the language has to be plain simple. This may sound strange to our country as it may unsettle the colonial drafting but the fact is that the global market needs a global language.

This is good to revisit above said Para of the report. The following list of plain drafting technique is worth noting:

  1. Use of active voice,
  2. Plain English words, (not legal English words),
  3. Simple and short sentences,
  4. Avoid archaic terms,
  5. Avoid double negative,
  6. Avoid complex sentences,
  7. Use single words for words in pairs,
  8. No vague word,
  9. Avoid Latin words,
  10. Avoid foreign words,
  11. Use proper numbering

Now, I will take liberty to quote some example of this plain drafting from Draft Indian Financial Code. Relevant old technique examples are also given.

Draft Indian financial Code Other relevant Example
A body by the name of the Unified Financial Authority is established under this Act to exercise the powers and carry out the functions designated to the Financial Authority under this Act. With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”.
The Financial Authority will be a body corporate having –

(a) perpetual succession;

(b) a common seal;

(c) the power to sue and be sued;

(d) the power to enter into and execute contracts;

(e) the power to acquire, hold and dispose of property, both movable and

immovable; and

(f) the power to employ persons to discharge its duties.

The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.
The Financial Authority will have its head office at Mumbai, and it may establish offices at any other place in or outside India. The head office of the Commission shall be at such place as the Central Government may decide from time to time.

The Commission may establish offices at other places in India.

Except for nominee members, all members of the board of a Financial Agency must be appointed by the Central Government from a list of persons shortlisted by a selection committee. The Chairperson and other Members of the Commission shall be appointed by the Central Government from a panel of names recommended by a Selection

Committee consisting of –

Any member of the board of a Financial Agency may resign by giving a signed notice of resignation to the Central Government. The Chairperson or any other Member may, by notice in writing under his hand

addressed to the Central Government, resign his office:

These are some example of different approaches of drafting. We may also adopt plain drafting techniques in our own area of practice.

***

Even though my write – up ended here. My editors have other inputs for ready reference of readers and I am re – producing them here:

Quotes on legal language:

Most legal writing is atrocious. Fred Rodell, Dean of Yale Law School before most of us were born, had it right when he said, “There are two things wrong with most legal writing. One is its style. The other is its content.” This was in a fascinating article, Goodbye to Law Reviews, one which should be assigned reading for all law students.

Judge Mark P. Painter, Legal Writing 201

The language of law must not be foreign to the ears of those who are to obey it. – Learned Hand

The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty.

Judge Lynn N. Hughes, U.S. District Court, Houston, Texas.

Further Resource:

Plain Language and the Law:

http://www.plainlanguagenetwork.org/Legal/index.html

The Consequences of Bad Legal Writing:

 http://paralegaltoday.com/issue_archive/columns/LglWrtng_ma07.htm

The Legal Writer #29: The Most Common Errors I See:

 http://www.judgepainter.org/legalwriter29

Here are some plain English alternatives to some common stuffy phrases:

(http://mariebuckley.com/tag/legal-writing/)

In all likelihood likely, probably
Let me offer an explanation of the cause. Let me explain why.
statement for professional services bill
Enclosed please find. . . . I have enclosed . . . .
presently soon, now
Pursuant to our conversation . . . . As we discussed . . . .
Per your request . . . . As you asked . . . .
I am of the mind that . . . . EEEEEEK! (There is no cure – just delete it.)
Signage sign
Of particular import to this issue . . . . In particular,
He was aware that . . . . He knew that . . . .
He shall have the ability to . . . . He can . . . .

This small piece was published in 112th edition of the e-Magazine from ICSI Mysore Chapter “Drafting of Future Laws” I am thankful to my friends Ms. K  Sarina Chouta Harish, Mr. Dattatri H M and all editorial team who made great affords for editorial inputs. Here is full piece along with some other editorial inputs:

Please note: this blog post is not a professional advice but general information about the subject covered here. In case, you have specific query, please seek professional advice or contact author.

I appreciate if readers share this post on social media with friends and colleagues. This will be my remuneration from your side. I welcome your comments and feedback.

Advertisements

No professional query in comments (but in mail). Only academic discussion here. Comments moderated. Sometime, reply to your mail ID. To subscribe blog, check homepage.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s