"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Wednesday, December 21, 2016

Failures in Law Making: The Case of Arbitration Law in India

A recently published paper of this blawgger deals with failures in law making with focus on arbitration law in India. The abstract is provided below:

The Statement of Objects and Reasons to the Arbitration & Conciliation (Amendment) Bill, 2015 placed substantial blame on the judiciary for the delay in disposal of arbitration matters and the increasing court interference in arbitration, both of which, according to the said Statement, had, the effect of undermining the object of the Arbitration & Conciliation Act, 1996. It is true that although the decisions in some cases could have been delivered taking into consideration the framework of arbitration, this paper argues that a substantial amount of blame falls on the law makers as well on two major aspects: If the judiciary has wrongly interpreted a particular provision, it is for the legislature to be proactive and immediately take action to correct the erroneous interpretation. However, it took about fifteen years for the government and the legislature to bring about the statutory reforms in the 1996 Act. This constitutes the first failure of the government and the legislature vis-à-vis the 1996 Act. Secondly, the courts cannot be entirely faulted since it was difficult to trace the legislative intent in enacting a particular provision of the 1996 Act. Therefore, an authoritative source such as parliamentary debates or reports of the Government on the 1996 Act would have aided the courts in finding out the legislative intent. This paper argues that failure by the lawmakers on both these counts contributed immensely to the failure of Arbitration & Conciliation Act, 1996 in achieving its objects.

The conclusive portion of the paper notes that whenever courts misconstrue a statute or render judgements contrary to, or which undermine, legislative intent, the government and the legislature should be more dynamic and correct such errors. Failure to do so will make law uncertain and justice costlier, and at times, elusive; It, secondly, argues, that authoritative sources from which legislative intent can be gathered should be made available especially in statutes that address a new area or which is drafted in a manner different from the previous law on the subject; Lastly, the paper reminds readers that legislative ambiguities impose immense costs on the parties and great burden on the judicial system and that therefore, the government and the legislature should act proactively to address these ambiguities.

The paper can be accessed from here.

[The paper was written for a conference in Kolkata which was held on 09.12.2016. ]

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