The Marriage Laws (Amendment) Bill, 2013, currently pending in the Lok Sabha, is a legislative proposal that will amend two laws which govern marriage and divorce: The Hindu Marriage Act, 1955, and The Special Marriage Act, 1954. Among other things, it will add a provision to allow both husband and wife to file for divorce on the ground of irretrievable breakdown of marriage.
To apply for divorce on this ground, they have to satisfy the court that they have lived apart continuously for at least three years. The provision also specifies that while calculating the period of three years, a period of three months in which the husband and wife temporarily lived together should not be counted. The idea being that husband and wife might be required to live together temporarily for reasons like death in the family or illness of a child and that such temporary living together should not be held against them while calculating the period of three years.
This is the provision with respect to the temporary period of three months:
“In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart.”
On reading this long sentence, the intent of the proposed law does not come across. It raises questions—can there be only one period of three months or less? Does this period have to be continuous, because the word continuous is not used? Or could it be multiple periods of temporarily living together adding up to three months or less, because the provision specifies “not exceeding three months in all”?
Also, this provision raises the question of whether the legal intent is being communicated effectively to the public which might want to give feedback and more importantly, would be required to follow this law. And this provision is just one small portion of one law pending in Parliament, which on an average passes 60 laws in a year.
Democracy is based on active engagement between citizens and government. This engagement could be around the delivery of public services or it could be about legal and policy issues of national interest. The law-making process is one area where active citizen engagement can lead to large-scale impact. This has been demonstrated through citizen campaigns on issues related to convicted legislators, political party transparency, women’s safety, corruption, etc.
Government and parliamentary mechanisms around legislative engagement so far have been limited to putting drafts of laws in the public domain to invite comments and feedback. While this is a welcome step, the legal language, coupled with complex structuring of the law, limits feedback.
The government is not oblivious to the problem. Earlier this year, the then Union minister for law and justice Ashwani Kumar stressed upon the need to draft laws in simple language that could be understood by the public. He stated that unambiguous legal provisions would go a long way in safeguarding the constitutional and legal rights of the common man.
The cabinet secretariat, in its handbook on writing cabinet notes, sums up principles which are equally applicable to legislative drafting. It states that the language used in cabinet notes should be clear, concise and incapable of misconstruction. It goes on to suggest the use of short sentences and states that lengthy sentences, abruptness, redundancy, superlatives and repetition, whether of words, observations or ideas, often lead to confusion.
Internationally, two different approaches have been taken to ensure clarity in legislation and government communication. The Australian and Swedish approach is to establish institutional mechanisms within the government to encourage use of plain language in legislation. The US has enacted a comprehensive law called the Plain Writing Act, 2010. This law requires that federal agencies use “clear government communication that the public can understand and use”.
In the Indian context, use of plain, simple and unambiguous language while drafting laws would exponentially increase public interest and involvement in the legislative process. The process itself would become more efficient as objections to laws could be tackled early on. More public engagement would lead to laws that are well debated and therefore robust. This would then have a cascading effect, leading to improved implementation and faster disposal of cases in courts.
Bringing clarity to laws in an institutional manner is an opportunity for both the government and citizens’ groups. The government could leverage it to communicate its legislative agenda to people easily without the need for additional outreach efforts. Citizens’ groups could rally public support around their issues. But no matter who taps into this opportunity, it would benefit the country.