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Reviewing legislation is a much more difficult task than drafting legislation. This article provides key points to remember while reviewing the legislation.
No law is good law if it does not cater to the needs and requirements of the society and to cater to the requirements of the society, a law needs to be up-to-date. Therefore, the work of the lawmakers does not end with the enactment of a statute. Lawmakers need to make sure that the legislation is not outdated and reviewed time to time.
For instance, the Indian Penal Code did not provide for offences such as molestation, acid attack, dowry death etc. which were added to the Code after it was properly reviewed in 2013. Moreover, review of legislation is also necessary to ensure that the legislation is in consonance with the Constitution and has not become redundant with the passage of time.
There are several laws in India that are outdated and need to be reviewed immediately. Also, there are laws and prospective legislations which are claimed to be unconstitutional because of their provisions. The task of reviewing legislation has not been taken up voluntarily by the lawmakers till now unless there is directed by the Supreme Court or an incident that urges the review of legislation.
Reviewing legislation is a much more difficult task than drafting legislation. Whenever legislation is being drafted the following questions need to be addressed:
1. Will the legislation fulfil the purpose for which it has been drafted?
Every legislation is drafted for a purpose which is either to implement a policy or to regulate conduct. To ensure that the purpose is fulfilled, several provisions are enacted in the statute and several institutions are created.
For instance, the purpose of Insolvency and Bankruptcy Code, 2016 is to allow insolvent companies to revive and pay off its creditors. To ensure this objective is fulfilled, the code provides for a period of moratorium during which no case can be filed against the company and also appoints a Resolution Professional for the purpose.
2. Whether key terms have been defined?
A word has several meanings and how it is used in legislation can only be known by the drafter of the legislation. Therefore, it is an important point to look that all the key terms used in legislation has been defined in the definition clause of the statute.
3. Can unintended consequences be foreseen?
Legislation may have several impacts, positive and negative and the recent Citizenship Act, 2019 is the perfect example for that. It is the duty of the lawmakers and reviewers to ensure that there is no negative impact of the legislation, and if any negative impact can be foreseen, it is immediately eliminated by a modification in the law.
4. Is the effective date of the statute correct?
A statute does not come into effect on the date of its enactment. The date of enforcement is either provided in the statute itself or announced by the legislature later. It is vital to note the socio-economic and political scenario of the nation when legislation is brought to effect.
Questions such as whether the law should be delayed, whether it will achieve its purpose if it is enforced on another date, etc. should be posed while reviewing a law.
5. Whether the Statute will have a retrospective application?
A statute always has prospective application because the Constitution prohibits retrospective application of laws. It means that it applies to people and circumstances that occur after the statute has come into force and not on circumstances that existed before the enactment.
However, retrospective application is allowed in civil laws and it needs to be considered whether a law should be applied retroactively or prospectively.
6. Does the legislation take appropriate measure to achieve its purpose?
Legislation may be enacted to achieve purposes which are not easy to achieve and can be accomplished only in the long-run, for instance, criminal laws. Therefore, it is essential that effective bodies and institutions are created by the legislation to ensure that the object is achieved slowly in the long run.
For example, the Juvenile Justice Act, 2015 creates several correctional homes, special homes, etc. to provide juvenile delinquents with an environment for rehabilitation.