By

Dr. Hardik H. Parikh

Assistant Professor of Law
Gujarat National Law University, Gandhinagar
E-Mail: hparikh@gnlu.ac.in, 9428960878
 Role of Drafting in Law
 Written laws – foundation of democracy.
 Vigilant Citizens & Responsible Law
Makers
 Legal Awareness – to curtail many issues
connected with society.
 Legal Drafting

By Dr. Hardik Parikh, GNLU 2

 Types of Legal Drafting
• This type of drafting is intended to achieve a
particular result, and usually defines and
regulates the legal relationship between two or
Functional more parties.
• Examples: Sale Deeds, Mortgage Deeds, Gifts, and
Wills.
• The layout of a persuasive draft is usually dictated
by the line of arguments intended to emanate
from the document and is designed to convince
Persuasive the reader to accepta certain viewpoint.
• Examples: Plaints, Written Statements,
Memorandumsof Appeal, and Bail Applications.

• Such drafts normally only contain the

information necessary and useful for the
Informative reader.
• Examples: Letters to Client, and Legal
Opinions
By Dr. Hardik Parikh, GNLU 3
Drafting Course in Academics
Drafting • Compulsory Paper
Pleading & (BCI)
Conveyancing • Final Year

Advanced • Innovative
Legal Development at GNLU
Drafting • Last Semester – X
By Dr. Hardik Parikh, GNLU 4
Advanced Legal Drafting – Clinical III
Course Modules
Drafting of Writ Petitions - Public Interest Litigations

Drafting of Corporate and Commercial Agreements

Corporate Pleadings

Drafting of Intellectual Property Instruments

Components of Legislative Drafting

Drafting relating to ADR

Components of Judgment Drafting

By Dr. Hardik Parikh, GNLU 5
 Please keep in mind…
A good drafting comes from heart…. Practice
is the key…

Books / templates of drafting – merely provides

STRUCTURE. Structure is not drafting.

Good clothes don’t make a handsome or

successful man. It only adds to them.

Attractive packaging cannot make a product

perfect.
By Dr. Hardik Parikh, GNLU 6
 Pillars of Democracy

Governme Apex/Supreme
Center States nt Officers Court
of Various
Parliament Legislative Classes
High Courts
Assemblies

Lower/Subordiate
Courts

Public

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 PIL – for significant Public Interest.
 On behalf of those..
 who are unable to get Justice.
 In representative capacity.
 Misuses of PILs due to various reasons..

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 Public Interest Litigations
 The concept of PIL - against the rule of locus
stadi - evolved by our courts in the 1980s to
help the weaker sections of society, who due
to their poverty, ignorance and illiteracy,
were not able to assert their rights.

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 Justice Krishna Iyer in Fertilizer Corpn.
Kamgar Union v. Union of India, (1981) 1
SCC 568 - a significant observation - "law
should not be a closed shop else the
system may crumble under the burden
of its own insensitivity".

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 S.P. Gupta (the first Judges case) and Bandhua Mukti
Morcha cases, Justice Bhagwati evolved the concept of
"public injury"
 Allowing a public spirited citizen to approach the court
for redressal of public injury relating to environment,
human rights, administration of justice, arbitrary
action of the executive, investigation of cases
involving persons occupying high-public offices,
etc.

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 Recent observation of Judiciary about PILs due
to its abuse-
 "publicity interest litigation"
 "private interest litigation"
 "politics interest litigation"
 "paisa income litigation"

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 Various Misuses of PIL
 For Publicity
 For Private Interest
 For Political Rivalry
 For any oblique motives

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 Main Challenge for Court
 To measure the seriousness of the petitioner.
 To see whether he is actually the representation
of the cause of the persons or groups he is
representing
 PIL should not be filed only by clean hands but
also by clean heart, clean mind and clean
objective.

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 No specific Uniform guidelines for
admission of Public Interest
Litigations
 Supreme Court Guidelines.
 Gujarat High Court Notification 2001/2010
 Guidelines for PIL by other High courts

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 Guidelines by the Supreme Court
 No petition involving individual or personal
matter shall be entertained as PIL matter except
as indicated hereinafter:
 Letters / petitions falling under the following
categories alone will ordinarily be entertained as
PIL

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 Bonded Labour Matters
 Neglected Children
 Non-Payment of minimum wages to the workers
 Exploitation of casual workers
 Complaints for violation of Labour Legislations (Except
in individual case)
 Petitions from jails complaining harassment, death,
speedy trial.

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 Petitions against police for refusing to register a case,
harassment by police and death in police custody.
 Petitions against atrocities on women, in particular
harassment of bride, bride-burning, rape, murder,
kidnapping etc.
 Petitions complaining of harassment or torture of
villagers by co-villagers or by police from persons
belonging to SC ST or EBC

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 Petitions pertaining to Environment Pollution,
disturbance to ecological balance, drugs, food
adulteration, maintenance of heritage and culture,
forests, wild life and other matters of public
importance.
 Petitions for riot victims
 Family pension

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Which matter can not be considered
as PIL
 Matters and cases falling under the following
categories will bot be entertained as PIL and
these may be returned to the petitioners..

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 Landlord – Tenant matters
 Service matter and those pertaining to pension and
gratuity
 Complaints against central/state government
departments and local bodies
 Admission to medical and other educational
institutions
 Petitions for early hearing of cases pending in High
Courts and Subordinate Courts
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Awareness about drafting
How much
effort you put
on drafting
related to that
law?
20%
How much
effort you put
on learing
theoritical
aspects of law?
80%

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Legal Drafting – Heart of Legal Profession

Lack of proper knowledge of the subject

Result – Increase of Litigation, Delay in Justice,

Disreputation of Legal Profession

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 Implications of Poor Drafting
 Double and doubtful meaning of the intentions given
shape in the document.
 Inherent ambiguity and difficulties in interpretation of
the documents.
 Difficulties in implementation of the objectives desired in
the documents.
 Increased litigation and loss of time, money and human
resources.
 Misinterpretation of facts leading to wrongful judgment.
 Causing harm to innocent persons.

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 Drafting – Composite Art
 Drafting of legal matters requires greater skills and
efficiencies.
 It requires thorough knowledge of law, procedure,
settled judicial principles, besides proficiency in
English Language.
 Think – Learn Subject by heart – Get proper idea
about facts – Use proper language – Associate it
with logic – Good Draft.

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Qualities to be possessed for good drafting
 Good command of language
 Clarity of facts
 Clarity of law
 Ability to arrange facts in sequence of time or date
 Ability to arrange bare facts (without mixing the facts
and legal submissions)
 Ability to discard or exclude the facts that are not
remotely relevant to the controversy, however, at the
same time taking care of not suppressing material facts
 Ability to frame the prayer clause specifically- what your
client wants and what is absurd to demand.
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 Stages of Legal Drafting
While there are many different approaches to Legal Drafting,
the three-stage process described here may be helpful :

Planning Stage

Writing Stage

Revision Stage
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 1. The Planning Stage
1. Take instructions from the Client: In this regard, it is also
important to check whether the instructions have been give by
the authorised or appropriate person.
2. Analyse those instructions and compartmentalise them in
a factual and legal context: Ascertain if all the material
information, including the details of the parties, the
consideration, the obligations of the parties, and any warranties
and representations are available to you. In case of complex
commercial property matters, it would be ideal to make a site
visit and ascertain the layout of the land personally.

Dr. Hardik Parikh, GNLU 28

3. Ascertain the purpose and objective behind creating the
document: Most drafting produced by a Lawyer is intended to carry
out the Client’s instructions. Thus, it is important as the very first step
to identify the Client’s goals, concerns, and instructions. In case of a
corporate entity, it is also necessary to ascertain the Client’s business
objectives.
4. Research the relevant up-to-date law and find appropriate forms
or precedents: Consider and research the law affecting the deed or
document to be prepared, and determine whether there are any
restrictions imposed by law or even whether there has been a change
in law.
5. Identify options: Preparation may reveal alternative ways of dealing
with the matter. The same may be conveyed to the Client, and the
alternative ways may be opted for keeping in mind that the primary
objective is to achieve what the Client wants in a legal context.
Dr. Hardik Parikh, GNLU 29
 2. The Writing Stage
1. Prepare a skeleton draft: After the general scheme of the draft has
been conceived, the draftsman should note down the matters or points
that he intends to incorporate in the draft. Ascertain if all the material
matters have been stated in this skeleton draft and whether there is
any material information required from the Client. If so, seek
instructions.
2. Create ideas for the draft: Once the skeleton draft has been
prepared, analyse it and consider any more ideas, both of law and of
fact, which can be incorporated in the draft.
3. Ensure that all the content conceived during the Planning stage
has been incorporated in the draft: It is ideal at this stage to refer to
your notes made during the Planning stage. It is necessary to check at
this stage whether the draft forms a coherent and consistent whole and
if the draft is logically organised. Also check, if grammar and language
have been adhered to. Prepare a checklist to make sure that all the
material clauses have been
Dr. Hardik Parikh, included.
GNLU 30
 3. Revision Stage
1. Re-analyse the instructions, factual situation and legal
research;
2. Re-write to ensure coherence;
3. Re-organise the material in a clear and user-friendly
manner;
4. Edit the material; and
5. Concentrate on spelling and grammar.

Dr. Hardik Parikh, GNLU 31

Fundamental Rules of Pleadings
Every pleading must state facts
and not law

It must state all material facts

and material facts only

It must state only the facts on which

the party’s pleading relies and not the
evidence by which they are to be proved

It must state such facts

concisely, but with precision
and certainty
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Please keep in mind- Drafting skill
– Non Intervening Skill
 A lawyer is not supposed to add contents of his
own which is not requirement of petition.
 Client’s submissions (Facts) are required to be
drafted in legal language.
 Therefore Good Drafting helps in speedy justice
as the client is not required to be trained at the
time of trial.
 Most important and ethical aspect in legal
practice today…
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 Writ Petitions
Right to Constitutional Remedies (32)
 Right to Approach the Supreme Court of India in
case of violation of fundamental rights through
appropriate writ petitions
 Habeas Corpus
 Mandamus
 Prohibition
 Certiorari
 Quo Warranto

 Writ Petitions before the High Court for violation of

Fundamental Rights as well as other legal rights – Article 226
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 Mandamus – Command
 Demands some activity on the part of body or person to
whom it is addressed.
 Command the person to whom it is addressed to
perform some public or quasi public legal duty which
he has refused to perform and the performance of
which cannot be enforced by any other adequate
legal remedy.

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 Mandamus shall not be issued unless the petitioner has
a legal right to the performance of legal duty of a public
nature and the party against whom the writ is sought is
bound to perform that duty.
 A kind of discretionary remedy and the court may
refuse to grant this where there is an alternative remedy
for the redress of the injury complained of.

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 In India, Mandamus will lie not only against officers and
other persons who are bound to do a public duty but also
against the Government itself.
 Also available against the inferior courts or other judicial
bodies when they have refused to exercise their
jurisdiction and thus to perform their duty.
 Enforcement of Fundamental Rights – Whenever a
public officer or a Government has done some act which
violates the fundamental right of a person, this writ would
be issued restraining the public officer or the Govt.
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 Apart from enforcement of fundamental rights,
mandamus is available from the High Court for
various other purposes including..
 To enforce the performance of statutory duty where
a public officer has got a power conferred by the
Constitution or a statute – Direction to the officer for
the enforcement of the duties.

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 To compel any person to perform his public duty
where it is imposed by the Constitution or a statute.
 To compel court or judicial tribunal to exercise its
jurisdiction when it is refused.
 To direct a public official or the Government not
to enforce a law which is unconstitutional.

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 Mandamus will not be granted against following persons:
 The President, The Governor – for exercise and
performance of the powers and duties of his office of for any
act done or purporting to be done by him in the exercise of
powers and duties.
 Private individual or body whether incorporated or not
except where the State is in collusion with such private party,
in the matter of contravention of any provisions of the
Constitution, Statute or a Statutory instrument.

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 The writ of mandamus is to protect the interest of the
public from the powers given to them to affect the rights
and liabilities of the people.
 This writ makes sure that the power or the duties are not
misused by the executive or administration and are
duly fulfilled. It safeguards the public from the misuse of
authority by the administrative bodies

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 Writ of Prohibition
 Writ issued by the Supreme court or High Court
to an inferior court forbidding the latter to
continue proceedings therein in excess of its
jurisdiction or to usurp a jurisdiction with which
it is not legally vested.

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 Writ of Certiorari
 Literally, Certiorari means to be certified.
 The writ of certiorari can be issued by the
Supreme Court or any High Court for quashing
the order already passed by an inferior court,
tribunal or quasi judicial authority.

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 Writ of Quo - Warranto
 “By what warrants?" or "what is your authority"?
 Writ issued with a view to restrain a person from
holding a public office to which he is not entitled.
 The writ requires the concerned person to explain to
the Court by what authority he holds the office.
 If a person has usurped a public office, the Court may
direct him not to carry out any activities in the office or
may announce the office to be vacant.
 Thus High Court may issue a writ of quo-warranto if a
person holds an office beyond his retirement age.
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Writ Petition (PIL) has following parts:

 Title of the Petition – “In the High Court of ………”

 District
 Number of Petition – Writ Petition (PIL) No. …./2020
 In the matter of …
 i) Articles of the Constitution of India
 ii) Relevant laws to be stated
 iii) Relevant rules to be stated
 iv) The decision under challenge in the petition

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 Details of the petitioner/s
 Details of the respondent/s

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To, Hon’ble Chief Justiceand other Hon’ble Judges Of The High Court of________
The petitioner(s) most respectfully submit(s):
1. Challenge in the petition
2. Facts to be divided in to small sub-paragraphs- if violation of the fundamental
right given to citizens of India only is alleged- make statement that the petitioner
is a citizen of India.
3. Legal Grounds/Submissions
4. Prima facie case, balanceof convenience and irreparable loss
5. No other alternative remedy
6. Details of the legal proceeding, if already undertaken on the subject- Statement
to be made that no other case filed on the subject matter in any other forum and
how it was disposed of.
7. No delay and laches/ Give reasons for delay-details of the cause of action
8. Statement about territorial jurisdiction only when there is any doubt about the
High Court’s jurisdiction
9. Prayer clause
10. Affidavit- Oath/affirmation-facts based on the personal knowledge, facts based
on information and belief – no material fact or document concealed.
11. Documents-Annexures ( Annexures to the petition should be given consecutive
cardinal numbers prefixed by word ”P” as P-1,
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 Assignment
 Draft a Public Interest Litigation on any
public related issue which you are facing
and you are feeling that there is no other
effective alternative remedy except to
approach the court. Submit the same by
email.

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