N R MADHAVA MENON IN THE HINDU
The Restatement of law seeks to identify and remove the ambiguities surrounding the legal principles, and clarify the law for its better adaptation to the needs of society.
One of the reasons for popular dissatisfaction with the administration of justice is the uncertainty of law which sometimes results in miscarriage of justice. The multiplicity of interpretations, the inadequacies of legislative drafting, ambiguities in policies and the variety of languages in which transactions are made add to the confusion and make repeated litigation inevitable. The use of simple English is now being canvassed in Common Law countries for legislative drafting and legal documentation. In the United States, complex and ambiguous laws have been simplified, codified and re-stated by the American Law Institute for the convenience of the legal community and the litigant public. In India, the problem persisted, alienating people from the law itself and providing litigants and advocates their heyday to often delay and manipulate the process to their advantage. The rule of law and access to justice have been in jeopardy in the circumstances.
On October 11, Chief Justice of India S.H. Kapadia released three Restatement volumes in New Delhi on three different legal subjects prepared by a committee headed by senior Supreme Court judge R.V. Raveendran (since retired) and published by the Indian Law Institute. The volumes are on various themes which have for long been discussed in the public domain without any clarity or certainty on where the law stands for guidance of the people who are supposed to know it in any case. It is doubtful whether the lawyers and judges who are the experts to advise the litigants are themselves clear on the various issues involved.
The Restatement Series, which the Supreme Court started with, included Legislative Privileges, Contempt of Court and Public Interest Litigation. The event marked a quiet revolution in the simplification, clarification, consolidation and dissemination of the law authoritatively. It is all the more significant that the project was initiated without any public funding and through the voluntary contribution of time and expertise by the contributors, consultants, editors and publishers. Even the printers and distributors have agreed to price the publications in the public interest at the bare cost of paper, ink and printing. Soon it may be available free in digital form as well.
What is Restatement and how does it help the public? According to Mr. Justice Raveendran, Restatement is intended to be an authoritative neutral statement of the law on the subject, identifying and removing uncertainties and ambiguities surrounding the legal principles and clarifying the current law for its better adaptation to the needs of society. The subjects are areas of Indian law where there is need for clarity and simplicity benefiting not only the legal community but, more importantly, civil servants and the general public.
The method of producing the Restatement is not the usual one adopted in writing books or drafting documents. The Restatement Committee deliberated on the choice of subject from the point of the public interest, the legal doctrines and principles involved, the issues that deserve clarification, the uncertainties or ambiguities to be removed and the structure of presentation to serve the multiple consumers of the Indian law. Care has been taken to avoid views and opinions on what the law ought to be and to make the propositions purely based on statutes and judicial pronouncements so that the Restatement is an authoritative reproduction of current law which can be acted upon by lawyers and judges whenever differing judgments from different jurisdictions offer diverse interpretations on the same issue. Thus, it can save judicial time and expedite disposal of cases. Lawyers may not have to carry or cite multiple decisions or run the risk of overlooking judgments; nor need judges be afraid of being misguided by overruled propositions or amended statutory provisions.
The Restatement draft involved two revisions — first when it was sent for critical feedback among selected expert consultants and, second, when the revised text was scrutinised by the editorial committees consisting of judges, jurists and academics. The concern all through has been to ensure clarity and accuracy and, to a large extent, the three volumes fulfil these objects. These Restatements are thus an easily accessible, clearly understandable, non-technical statement of the current law otherwise spread into many constitutional provisions, voluminous statutory texts, innumerable judicial pronouncements — sometimes conflicting and confusing. If they are translated into vernacular languages, the general public will have free access to understand the law, which is fundamental for access to justice.
It will be interesting to know that the contributors of the three volumes include busy lawyers such as K.K. Venugopal and Gopal Subramaniam, of course, ably assisted by a number of bright young lawyers practising in different courts. S. Sivakumar, Research Professor of the Indian Law Institute, co-ordinated the preparatory work and oversaw the production of the volumes in a uniform format.
Congratulating the Supreme Court Project Committee and the Indian Law Institute, the Chief Justice of India said this ambitious project would publish Restatements on various important topics in future and Justice Raveendran would continue to be its Chairman even after his retirement. Justice Raveendran, in turn, announced a list of topics which would engage the priority attention of the Committee for preparation of further Restatements in the coming years.
But it is sad that a major project of great public interest in reaching the law to people at the instance of the highest court has gone unnoticed by the government, the media and civil society. Though it is not the function of judges, the interest and investment they have put in the effort will be appreciated by civil society as the project brings more Restatements on laws affecting the daily lives of common people. What the government can do is to support the project with funds, undertake translations of the volumes in all official languages and reach them to people through panchayats and other local bodies so that the rule of law prevails with the removal of ignorance. In fact, if the grass-roots courts proposed under the Gram Nyayalaya Act have to function through an informed conciliatory process, both parties should have an authoritative knowledge of the laws that regulate their transactions, and understand the rights and obligations under them. Even the gram panchayats can function effectively without bureaucratic dependence only when the law and the Constitution become unambiguously familiar to the elected representatives. Looked at from this perspective, the Supreme Court’s Restatement of Indian Law Project is nothing short of a rule of law revolution in the making, possibly heralding the success of democracy and constitutional governance.
The law governing contempt is shrouded in mystery despite there being a statute and innumerable pronouncements by the Supreme Court clarifying its scope. Yet the common people and journalists are uncertain about the principles involved, the scope of the statute and the constitutional limitations on contempt power. Similar is the case with the privileges of elected representatives of the State Assemblies and Parliament. Such a situation in the functioning of two important institutions of governance is prejudicial to democracy and the rule of law. This is what the two Restatements attempt to redeem by clarifying the current law on the subject. Of course, the law can change with changes in society and Restatements may need to be updated whenever new editions are planned. Furthermore, Restatement can never act as a substitute for professional advice if and when legal action is required. Yet they help to avoid problems and to solve problems effectively as and when they arise.
Public Interest Litigation is a legal tool invented by the Indian judiciary for giving a voice to those vast masses who would otherwise have not been able to access justice because of ignorance, incapacity and the way the system works. For that very reason, it is a part of the jurisprudence of the masses which they ought to know for seeking justice. In the absence of any statute on the subject, the law has to be articulated from judicial practice and pronouncements over the last several decades and more. This is what the Restatement on the subject has done for the lasting credit of the Indian justice system. If Restatements are brought out on the Right to Education, Health, Food, Work, Clean Environment and a corruption-free government, the common man can hope to be less prone to exploitation and more empowered to seek remedies under the law.
(Professor N.R. Madhava Menon, a former Vice-Chancellor of the National Law School, Bangalore and Kolkata, is a Member of the Restatement of Indian Law Project Committee of the Supreme Court.)
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