Legislative Drafting, Practice and Procedure

Introduction

“I am the parliamentary draftsman;
I compose the country’s laws.
Of half the litigation in the nation,
I am undoubtedly the cause”.

Supreme Court has ruled: “lack of Legislative simplicity has led to interpretative complexity”[Vaswani v. State of West Bengal AIR 1957 SC p. 2476]

A statute as enacted cannot be explained by the individual opinions of the legislators, nor even by a resolution of the entire legislature. Legislative drafting is done by the legislative departments of Governments and it is legislation that controls and regulates the conduct of citizens.

It is said that drafting legislation is an art, not a science. A well-drafted bill results, not from slavishly following numerous arbitrary rules, but rather from thorough knowledge of the subject, careful attention to detail, and adherence to such common-sense principles as simplicity, clarity and good organization. The principle of Rule of Law presupposes that those who are affected by a law should be in a position to ascertain its meaning and effect.


A drafter should keep in mind:

The object of the proposed legislation;
What is provided in existing law with respect to the subject matter;
Whether the proposed legislation will be in conflict with the provisions of the State
or Indian Constitution; and
How existing state law might be affected by the proposed legislation

An Indian Legislative draftsman additionally requires the following:

(i) An intimate and full knowledge of the Indian Statute book;
(ii) Familiarity with legal principles as expounded.by the Courts;
(iii) A full and intimate knowledge of the Constitution, particularly fundamental Rights and provisions relating to distribution of legislative powers between the Centre and the State; and
(iv) Knowledge of procedure in Parliament or Legislative Assemblies, administration, Courts at work including societal living conditions.


Checklist for Bill Drafting

Structure

Title
Includes all code sections amended, added and repealed within the bill
Ascending order for code sections
References all clauses within the bill
Enacting clause (double check wording)
Current version of code sections
Code section placement
Numbering of subsections, paragraphs, etc.
Material to be deleted — Strike-through
New material – Underscore
Catchlines — Informative but short
Definitions — Alphabetical order
Special constitutional and statutory provisions
Penalty provisions
Severability clause
Emergency clause
Effective date

Other date as specified
Sunset Clause
Is the title short, yet clearly expressive of the subject matter of the bill?
Is the enacting clause expressed correctly?
Are words used consistently with their definitions throughout
the bill? Are words defined but never used in the bill?
Is the bill written in a clear style and divided properly into
sections and subsections?
Are the substantive parts of the bill logically arranged?
Does the bill accomplish its intended purposes?
If the bill affects existing laws, are its provisions properly
integrated with those laws so that no conflict will arise in
interpretation or administration?
Are all statutory references in the bill accurate?
Are all conflicting statutes specifically repealed or revised?
Does the bill need a different effective date than July 1? If yes, does the bill contain the necessary words for that effective date?


General Grammar

Generally, sentences must be simple to understand.

Positive sentences must be treated as the rule, and negative sentences as the exception,
since the former are simpler to read.

An Act should speak in the active voice. Moreover, this is essential when a duty is imposed or a power is conferred. Use of the passive voice should not automatically be rejected. It is perfectly justified in the case of general prohibitions or where the context clearly designates the persons responsible for applying the rule.

Keeping the subject and predicate close together allows for instant identification of the person who has to discharge an obligation, and the obligation to be discharged.

An Act speaks in the present tense. The future and the past are used only to express the temporal relationship between two events.

An Act does not express desires, wishes or justifies. It orders, authorises, prohibits, governs or imposes penalties.

Different words must not be used to express the same idea. The same word must not be used to express different ideas. In legislative drafting, monotony is a positive quality.

Plain language approach in drafting laws should be adopted


Forms of Legislative Instrument

Bills
Acts
Orders
Rules
Schedule
Ordinance


Different Parts of a Statute

Long Title and Preamble
Enacting Formula

Section arrangements
Short Title, Extent and Application

Commencement Clause

Coherent Arrangement of Chapters

Short and precise headings
Definitions and Principle Provisions

Clauses
(a) Drafting an accessible clause

(b) Paragraphs

(c) Cross-References

(d) Provisos

Common Clauses in a Bill

(a) Setting up authorities

(b) Offences

(c) Offences by companies

(d) Power to make rules/rules to be laid before Parliament

(e) Power to remove difficulties

(f) Repeals and Savings

(g) Protection of action taken in good faith

(h) Effect of other laws/overriding clause

(i) Civil Court to have no jurisdiction/jurisdiction of other Courts barred

Administrative Machinery, if any, contemplated by Statute

Penal Provisions, Rule and Regulation Making Power
Temporary Provisions
Punctuation and Marginal Notes
Provisions, Illustrations and Presumptions
Use of non-obstante clauses
Retrospective Effect
Exceptions
Fictions
Explanations


Alternative form

Following is a suggested order of arrangement of a bill or of a chapter of the
General Laws:

a. Short title.
b. Preamble; findings; purpose.
c. Definitions.
d. Scope, exceptions, and exclusions, if any.
e. Creation of an agency or office.
f. Administration and procedural provisions.
g. Substance (state positive requirements in order of time, importance, or other logical
sequence).
h. Prohibitions and penalties.
i. Repeals.
j. Saving and transitional provisions to existing relationships, if any.
k. Effective dates.


Definitions and The General Clauses Act, 1897

Art. 366 of the Constitution of India  contains some ‘definitions’

 definitions contain ‘legal fictions’

definitions use the word ‘means’

words which are not defined in the opening part of a statute are defined in the body of the statute or in separate Parts or Chapters of the statute.

Non-obstante clause’ and words ‘without prejudice’:

A clause beginning with the words ‘notwithstanding anything contained in this Act’ or ‘notwithstanding anything contained in a chapter or section’ is sometimes appended at the beginning of a section, with a view to give the enacting part of that section an overriding effect over the provisions of the Act mentioned in the said clause. Courts have held that sometimes, where the non-obstante clause is very wide, it becomes necessary to restrict its scope to certain limited provisions of the Act with which it is in conflict having regard to the contents of the enacting part of the section which follows the clause.

The words ‘without prejudice’ have a different meaning. A provision enacted ‘without prejudice’ to another provision has the effect of not affecting the operation of the other provision. For example, a provision permitting Rules to be made under delegated legislation generally contains two clauses, the first clause refers to the general rule- making power of the Government for purpose of implementing the Act while a latter clause would say that ‘without prejudice’ to the generality of the first clause, such rulemaking power shall be deemed to include the power to make rules on specific matters enumerated in the second clause.

shall’ and ‘may’:

or’ and ‘and’:


Retrospective Legislation:

Legislatures have the legislative power to legislate retrospectively or to make the entire statute or some provisions to operate prospectively. However, penal statutes cannot create offences retrospectively in view of the prohibition contained in Art 20(1) of the Constitution of India.


Official Languages Wing of the Legislative Department of the Ministry of Law. Its functions are:-

(i) to prepare and publish a standard legal terminology for use, as far as possible, in all official languages;
(ii) to prepare authoritative texts in Hindi of all Central Acts and Ordinances and Regulations promulgated by the President;
(fIi) to prepare authoritative texts in Hindi of all rules, regulations and orders made by the Central Government under any Central Act or any Ordinance or Regulation promulgated by the President ;
(iv) to arrange for the translation of Central Acts, Ordinances and Regulations promulgated by the President in the respective official languages of the States and for the translation of all Acts passed and Ordinances promulgated in any State into Hindi, if the texts of such Acts or Ordinances are in a language other than Hindi; and
(v) to perform such other duties as may be assigned to it by the Government of India from time to time


Vocabulary

Aforesaid
Amongst
Hereby
Herein
Notwithstanding
Thereafter
Therein
Thereof
Thereto
Thereunder
Therewith
Wherein


Vague Words
As soon as possible/practicable
Best efforts / Best possible
Endeavour
Fair
Immediately
Material
Proper
Reasonable
Satisfactory
Usual
As it may deem fit


Foreign words and their substitutes

inter se- between or among themselves
inter vivos- between living persons
mutatis mutandis -apply with necessary modifications
inter alia- among other things
ab initio- from the beginning
bona fide- in good faith

mala fide in bad faith


Use “must” in place of “shall” in case of mandatory obligations.―Shall is properly used to indicate that something is mandatory and normally implies that to accomplish something someone must act. As to a public official, ―shall‖ is used to impose a duty, direction or command unless the context indicates that the legislature wished discretion to be exercised. Use ―shall‖ to prescribe a rule of conduct, but not to declare a legal result.

Use “may” whenever discretion of the use of powers is intended.

Use “will” for the operation of law or  use “may” to confer a power, privilege, or right