Pound Wise Penny Foolish
It has always been a criticism on part of the legislature to be able to formulate precise legislations for meeting the loose ends of the law. These loose ends result in creating lacunas in the legislations and result in creating minimal impact on the society. It is understandable that a civil society require laws which are accurate in dealing with the prevailing lawlessness but haste cannot be taken as a necessary evil in formulation of laws. Any law which is enacted as a result of any ‘highlighted’ incidence is often a result of hasty understanding of any incidence and is full of ambiguities. For example, a social evil existed for a long time in the country and a recent event which shook the whole society caused agitation among the public. Now in order to avoid public backlash and to subside the opposition pressure, unsubstantiated legislations are drafted in order to appease the public.
There are three cardinal rules which have to be kept in mind while drafting any legislation.
- Precision of the legislation.
2. Comprehensibility.
3. Product of legislative law making.
An unsubstantiated law reform exercise often misses out an intricate nature of legislative drafting and ends up being piece of legislation with a want for judicial interpretation. A well drafted statute should be complete within itself and should have a minimal judicial interference. Intention of the legislature must be apparent in the language of the statute. They should be the result of robust debate among the law makers and lack scientific as well as logical assessment of the conditions prevailing in the country.
A law contrary to the fair proceeding is itself a poorly drafted legislation. Fair proceedings is part and parcel of Article 21. Similarly if a law provides for speedy justice within a period of time which itself is arbitrary, it is evident that the main purpose of the legislation is to appease the public backlash and is contrary to Right to speedy justice which itself is a corollary of Article 21. Hence, Speedy justice and fair trial are the two important facets of Fundamental Rights and should not be contrary to each other.
We have witnessed two such events where these two principles were in conflict with one another. In the light of right to speedy justice, Nirbhaya was denied of her Article 21. It took years for her to get justice which should have given to her as a matter of right. On the other hand the accused of brutal Hyderabad gang rape victims were not given a fair trial. Whatever may have been the consequences of the proceedings but in a country governed by Rule of Law, fair trial should be the first thing the accused must be subjected to. When a country deviate its path from fair proceedings it is apparent that the principles of Rule of Law are being violated. One must understand that hasty justice is nowhere equivalent to justice at all. Followed by mishappening, there were wide spread protests and demonstrations which demanded State to enact laws to provide quick justice to the rape victims and conviction of the accused. Andhra Pradesh govt. appeased the citizens with Disha Act which provided the investigation of rape to be completed within 21 days. However, the legislature failed to notice the complications of collecting evidence on the part of the police. In the offence of rape, where collection of evidence is vital . Since the time frame is restricted to 21 days, collection of evidence by the police may be prejudiced against the accused as well.
Thus before enactment of any statute relating to any offence, detailed discussions about the complexities of the case must the utmost priority of the legislature. Any statute may lose its purpose if it requires judicial interpretations to rectify it’s formulation if it goes against the spirit of the Constitution. Any statute which violates the recognised rights shall be null and void. Statute must assure fair trial as well as speedy justice, thus maintaining adequate balance between the two rights. Contradiction between these two principles should not exist in an ideal statute. It should be coherent with other substantive and procedural laws such that if any repugnancy arises, it should not act as a failed machinery.
