JOURNAL OF THE INDIAN LAW INSTITUTE

VOLUME 34 JANUARY-MARCH 1992 NUMBER 1

THE DISCIPLINE OF LEGISLATIVE DRAFTING

P.M. Bakshi*

I Introduction
LEGISLATIVE DRAFTING is a well-cultivated art in most civilised
countries in the modern era. But there is not much theoretical writing
about it. As a result, persons outside the profession of draftsmen are
not aware of the joys and sorrows of this discipline, the thrills and dis-
comfitures, the preliminaries and the fruition of the process.

II The goals
What are the goals of a good legislative draft? In any intellectual activity,
one can employ one's talent to the best degree, if one knows the goal.
Workshops and conferences and training courses do help in devising the
means, in improving the means for attaining such goals, and sometimes in
enabling one to think of self-improvement. Those who embark on draf-
ting are not beginners in law. Mostly, they are persons with experience in
legal matters and would be able to devise some methods of self-improvement.
Of course, success in drafting requires a continuous process of self-scrutiny
and self-criticism, a desire to see imperfections in one's own product, a
keenness at perceiving one's own deficiencies and a readiness t© learn
throughout the career.

HI Legislative drafting : the concept

Legislative drafting can be defined as the drafting of legislation and of
any writing which arises out of legislation. Legislation, of course, is the
enacted law of the country, the statute law made by the legislature. But.
in modern times, it is not enough for a draftsman to be familiar with legis-
lation. He has also to draft a number of instruments, a number of orders,
a number of documents, a number of notifications, which arise from the

* Director, Indian Law Institute, New Delhi. Member, Law Commission of India,
New Delhi.

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legislation, which flow from the legislation, which emanate from the legis-
lation. While legislation is the parent, from that parent is born a very
large number of off-spring, which we generally call "subordinate legislation1'.
Legislative drafting, therefore, is not merely drafting of legislation proper,
but also of the subordinate legislation. This means, that the quantity of
the written material which can come to the draftsman in the course of
his professional career has no limits. Any kind of subject can form the
topic of legislation and subordinate legislation.
IV Knowledge required
Is it enough for the draftsman to know only the technique of drafting?
It is not so. Normally, people think that a draftsman is a specialist; of
course, he is. But that does not mean that his eyes are blind, or his ears
are deaf, or his mind is closed, to everything which is outside drafting,
because no mental discipline, no intellectual activity stands in isolation
and, certainly not, legislative drafting. The draftsman is drafting some-
thing which is going to be tested in the world. It is going to affect human
activity, the work of the administrators, the task of the judiciary and the
business of the law-enforcing people. Besides this, it is also going to affect
the people in general So, legislative drafting stands in very close contact
with reality.
About fifty years ago, a young boy in the United States wanted to
take up law as a profession and wrote a very polite letter to an eminent judge
saying that he wanted to take law, as his career* and requested the judge
to let him know how he should prepare, what he should read and how he
should equip his mind. He thought, that perhaps the judge will give him
a long list of books on law, legislation and political science and some case-
books. But the reply was simple. It was, "My dear friend, lam glad
that you are going to take up law as a profession. If you want to
equip yourself properly, forget everything about the law in the beginning.
Try to see as many beautiful paintings as you can. Try to hear great spiri-
tual music if possible. Try to read the classics if you have got a taste.
Read some beautiful novels, some good poetry and other great works of
literature. Make your mind full of the richness and variety of real life.
The law will then come naturally to you".
In legislative drafting also, we cannot close our mind to something
which is going outside the small cell in which we are working, because the
law which is going to be drafted, will have an impact on real life. The
draftsman is not performing mental gymnastics. Nor is it an intellectual
entertainment. It is something which is going to have a very great practical
effect on the lives of men and women.
V Qualities of a good draftsman
What, then, are the qualities of a good draftsman? It would appear
that three major qualities ate needed. First, a good familiarity with the

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1992] DISCIPLINE OF LEGISLATIVE DRAFTING 3

law in general is required. Secondly, mastery of the language in which

one is going to draft is needed. The desirability of mastery of language
applies to every kind of drafting, whatever be the language. Finally,
one should have a close familiarity with the Constitution and the statute
book of the country.

VI Knowledge of law
The importance of these three types of mental equipment needed for
the draftsman requires elaboration. He needs, first and foremost, familia-
rity with the law in general. The reason why an emphasis has been laid
on familiarity with the law in general is, that it is fundamental. Very
often, particularly in countries where there is a lot of work in the govern-
ment, people outside the drafting branch try to create a mental bifurcation
by saying that a certain person is knowledgeable only about drafting
and that another person is knowledgeable only about law. They assume
that a person who is good at drafting, will have no legal scholarship or
legal knowledge. That is not correct; it should not be so. One cannot
draft satisfactorily, unless one knows the law in general. What one is
going to produce, is a part of the law, if it is enacted. Law is not a block of
apartments where each tenant lives separately from each other. Rather,
the law is like a continuous stream. One may divide the law into several
compartments, for convenience. But, really speaking, the law is a conti-
nuous stream. If you touch the stream at one point, it is bound to affect
many other points in the stream. It is a running stream. It is not like
stagnant water. It is not like a small pool where you can plunge into the
pool and come back and take rest and then you can plunge into another
pool and come back. The moment you touch any part of the law, some
other part of the law is also going to be directly or indirectly affected,
although one may not always be able to visualise that. That is why, the
foremost emphasis is to be placed on knowledge of the law in general. Of
course, all draftsmen are persons with legal qualifications. But the law
goes on changing. In a busy official life, sometimes one does not have
the time to keep oneself abreast of the legal developments. But that is
what is necessary. In official life, if six hours are allotted for office work
each day, then at least half-an-hour should be kept apart for refreshing
the study of law. The law which one had studied in schools or colleges
about ten years ago, might have completely changed today. In most
countries, judicial decisions pour forth a great deal of law every day. Thus,
familiarity with the law in general is a very important part of the drafts
person's equipment.

VII Mastery of language

Next comes language, ft is not enough for the draftsperson just to
know the language like any other intellectual. He is using the language

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as the sole medium of his work. Take the example of a government

officer who is in the legislative side and a government officer who is in the
administrative side in some other ministry and who is not concerned with
the drafting of legislation. The draftsman will soon perceive that his
counterpart in the non-legislative sphere is doing a lot of work where words
matter less. That counterpart might be writing a long note, where preci-
sion is not required. He might be holding a number of meetings, where
no writing is required. He might be discussing with the minister; or
he may be holding a conference with the secretary or may be meeting the
public. In much of this work, even if it is cast in words, the words used
by the officer are merely a kind of expression of his own thoughts. However,
for the draftsperson, it is the 'word' which he or she uses, that makes the
law. It is the only work which the draftsman puts out. Of course, the
draftsman might be holding meetings occasionally. But, what comes out
as a concrete product, is the 'word'. Hence, mastery of language is required,
and such mastery is the only road to excellence in this work. A good
draftsman is sensitive to words. He is more sensitive than the average
intellectual. His mind is language-oriented. The first thing, which he
notices in any draft, is language. The first quality which he would like to
attain, if he is preparing a good draft is, "let it be in good language".
Language here does not mean only the grammatical part, though that
is also important. It means all the elements of good language and bad
language. It covers the structure of sentences, the arrangement of, and
juxtaposition of words, the choice of diction and above all, a certain amount
of strength as well as elegance. The draft must have the majesty of law,
the authority of a command, the neutrality of good prose and yet must
strive for limpid grace.

VIII The road to excellence

It is only when one is sensitive to language and to the words used, that
one is on the road to excellence. Take a concrete example. Suppose one
is drafting a legislation where one wants to impose an obligation on a citizen
or on a public officer, that certain things shall be done quickly. The word
'quickly'is a non-legal word. The dominant idea is, that action is to be
taken without delay. There are a number of choices. 'Without delay'
is the broad idea. But it can be reflected through a number of words in
the English language. We have got the word 'immediately'. Then, we
have got the word 'forthwith'. We have also got the formula "as soon as
possible'. And we have the formula 'within a reasonable time'. With so
many options, it would be the draftsman's responsibility to respond to
these options and to choose that which is appropriate to the particular
subject under discussion.
IX Choosing words
How can one make a proper choice of words and how can one know

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 1992] DISCIPLINE OF LEGISLATIVE DRAFTING 5

what will be the repercussions? Some practical aids are fortunately avai-
lable. For making a choice of words, we have got, what is called, a
"thesaurus". This "thesaurus" is a word with a history. The Romans
used to put the government money in the thesaurus. That was their
treasury. The Thesaurus is a very helpful tool, because it gives, against
each word, its analogous words, words which are similar to it, but which
still have a different shade of meaning. The mind gets some help. It is a
kind of reservoir from which the draftsman can make a selection. This
is not the only source, of course, because there are legal dictionaries also.
There are now-a-days available even multilingual legal dictionaries, which
give you the words in English, French, German and Latin. Even if one is
drafting in English, the corresponding Latin or German or French compa-
rative words given in the dictionaries will strike a chord in the draftsman's
mind. It will enable him to choose a more appropriate word in his own
language. The regular legal dictionaries are also helpful. Supposing you
want to understand what are the implications of choosing the word
'reasonable', and what are the implications of choosing the words 'just'
and 'proper'. Or, supposing the draftsman wants to understand the impli-
cations of 'moral turpitude'. These are words which one may not find
in the ordinary non-legal dictionary. But these are legal words explained
in great detail in legal dictionaries.

X Knowledge of Constitution and statutes

Finally, the draftsman must have close knowledge about the Consti-
tution and the statute book of his country. The Constitution, of course,
sets the norms for legislation. If a law drafted by the draftsman is in con-
flict with the Constitution, then the blame will come upon him. No one
will think about the ministry which instructed him to draft a law. For
countries which have a complex set of fundamental rights, like India, this
is even more important. In fact, almost every country has now got a
charter of fundamental rights and if any country does not have a charter
at present, one can take it, that within the next 10 years, every country will
have a charter of fundamental rights.

XI Knowledge of statute book

Apait from the Constitution, the draftsperson must have a thorough
mastery of the statute book of the country. Even when a law is already
repealed, it may be of use to the draftsman as a model. All the enacted
laws in the country, if they are not at the finger tips of the draftsman, must
at least be mentally accessible to him. They must be very near the drafts-
man's mental eye. When the draftsman drafts a law, he is adding something
to the statute book. It is his primary duty to examine whether the matter
is already covered by some specific law. If it is not so covered, then he
should know how it will relate to the existing law, The first is a negative

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aspect, i.e.) if it is already covered, he does not have to make the law. The
second is a positive aspect. Sometimes, it may happen that the activity
in question is already covered, but in different words or on a different
scale. It may be that the draftsman would like to make a more severe
penal provision, a better worded law or a law which now directly meets
the current demand. But he has in any case to see, how far there is going
to be overlapping between the existing and the new law, and what will be
its consequences. The draftsman must know the implications of what the
legislature is going to enact; and that is where the relationship between
the existing statute book and the new law is of prime importance.

XII The process of drafting

Something needs to be said about the actual process of drafting. This
can be best explained by taking the case of a poet or an author. How does
a poem or other literary work come into existence? There is a very complex
and interesting mental activity going on. The poet has an idea or feels
an emotion. There is a certain imagination in his mind which starts the
mental activity. Thereafter, whether it is a personal emotion or patriotism
or love of nature, his mind revolves around that emotion. The first thing
which takes birth in the mind in poetry is the idea or the emotion, and
that is the cell, the germ or the nucleus.
This is the first stage. The poet then tries to spin around the emotion,
to elaborate the emotion and to relate it to his other experience. He tries
to bring out a fragment of his mind and puts it like a jewel in the ring.
This is a stage of elaboration. You can say that the mind now starts wor-
king, and what was merely a seed, now starts growing into a tree. It spreads
out its branches and thus multiplies. That is the second stage.
It is then, that the poet may put his pen to the paper and try to express
in writing what he has felt. We can call it the real cream of the creative
process.
But no poet is satisfied with his own poem in the first version. Once
he has put it in so many words, he will try to improve it, to refine it, to
make it look better. That is what may be called the technical stage.

XIII The four stages of drafting

The draftsman too has, at first, a germ, a cell or a nucleus. Instructions
are given by a ministry which wants him to draft a certain law. That is
the factual stage or the stage of information. Thereafter arrives the second
stage, which is the intellectual stage. At the intellectual stage, the drafts-
man has to use all his knowledge of the existing laws. He must analyse
the situation for which the law is intended, the cases which should be
excluded, the cases which need elaboration, and so on. In this second
stage, he will try to spread out in detail the central idea given to him at
the first stage by someone else.

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 1992] DISCIPLINE OF LEGISLATIVE DRAFTING 1

When this is done, the creative work or the third stage begins, where the
draftsman reduces the proposals to words. This is the most fascinating
part of the draftsman's job, although it is also the most difficult. The
fascination which the draftsman gets when he reduces something abstract
to concrete material on the paper, carries its own reward. The work is
difficult, because it will require him to bring all his knowledge of the three
things which have been already mentioned. It will require him to bring
to bear his knowledge of the law; his knowledge of the language and his
knowledge of the legislation. This stage of creation is the most fascinating.
The draftsman is basically an architect in words. He is basically the creator
of a linguistic specimen which reflects the proposed law and that linguistic
specimen, reflecting the law, must harmonise with the Constitution and the
existing law. Here is a reservoir from which the draftsman has to draw
his material. English is a rich language. It is a storehouse of words,
verbs, adverbs and adjectives. Similarly, legislative usage has also got a
very profuse variety of formulas. There are so many avenues. All this
comes in handy at the third stage, which is the creative stage, and that
is why one finds it the most interesting stage.

XIV Revising the draft

Of course, the draft so prepared is not the final draft. Having employed
his creative faculty to the maximum, the draftsman has created something
which at least looks like a legislative draft. He will then start striking out
a word here and there and re-arranging the words. It can be called the
technical stage. It is a kind of revision. It is a necessary part of the draf-
ting process. In fact, it is to this stage that the draftsman should devote
his maximum time. For various reasons, this does not happen, but that
should be the goal. The draftsman should always try to "sleep over" his
earlier draft. This means, that if he has completed a rough draft of an
important part of the Bill today, then he should leave it aside for tomorrow,
and may re-write it tomorrow. In 90 per cent of the cases, he is found
to get some new ideas, at the second sitting. He will see that some words
which he had selected in the beginning, can be improved upon. Or he may
see some ambiguity in a particular phrase.

XV Avoiding ambiguity

A good draftsman considers it his duty to avoid ambiguity, as far as

possible. The weighing part is important in drafting and this weighing
part can be employed, only if the draftsman can re-write bis draft. The
draftsman is not mentally engaged only when he is putting his pen to the
paper; his mind is occupied throughout the 24 hours of the day, even while
he is away from his desk. Only then will the finest of language come to
the mind and the implications of a clause become clear to him. We are

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not geniuses; we cannot see the entire picture of reality or its totality at
one go. But we can weigh things at our leisure. The draftsman often
consults his colleagues, not worrying about protocol. Sometimes lay persons
can also make good suggestions. Those who are in the legal profession or
always engaged in law making, may forget the layman's angle. The layman
can often infuse a breath of fresh air. Harold Laski used to say that the
vision of the expert tends to become limited and may need the corrective
of lay person's approach.

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