Chapter XIU1

Legislative Drafing
the sarcastjc
The reader. of this may immediately be reminded of
Chapter
and that he whno
remark of Gcorge Bernard Shaw that-he who knows does
whenever he cane
docs not know icaches. The author himself was so reminded
across the statement that a particular provision
of Jaw was inartistically drafted.
He felt whcther the critic would really have done any better. For example,
in

of
v. Emperor', Sir John Beaumont. delivering the opinion
Pulukuri Kotayya
the Judicial Committee of the Privy Council. said:
Section 27, which is not artistically worded. provides an exceprion 1o
the prolhibition imposcd by the preceding section, and enables certain
statements made by a person in police custody to be proved."
Actually, the author always thought that the section was very well drafted
by Sir James Stephen, and it was judicial interpretation that made Section 27 not
only an exception to the 'preceding Section 26', but also to Section 25 and
cnabled the police to use their 'persuasive powers' to extract statements from
accused in their custody leading to the discovery of certain facts. Sir James
Stephen. having categorically excluded from the field of relevance all
confessions to the police under Section 25, intended, when he drafted Section
27, that it should be an exception only to Section 26, which deals with
confessions 1o persons other than the police, by using the words 'in the custody
of a police officer. Police custody is a requirement only in Sections 26 and 27.
Sir John Beaumont himself says so, but then proceeds as if such statements
could be made to the police. It is respectfully submitted that this interpretation
must be reconsidered. Its approval by the Supreme Court has led to the tangled
web in Deoman Upadhayaya case2.
All the same, while reading through the various cases for purposes of
understanding the various rules of interpretation the author felt that much of the
difficulty that a court was faced with, while trying to gather the intention of the
legislature, could have been avoided if certain basic rules were followed by the
draftsman and also, if his attention is drawn 1o the difficulties in choosing and
using various expressions and words. The author has therefore rushed in where
better men have feared to tread.
Language is not merely a means of communication but it is also the chief
medium of talk. Words are the tools with which language operates. When a
person speaks to another, however ambiguous the words chosen may be, he
makes his meaning clear by the language of gesture as well as by the
modulation of his voice and change in intonation. But when words are
printed,
and they are read, these other aids are not available, and hence, the words used
must be, as far as possible,
precise, and the arangement of the words should be
such that there is no syntactic ambiguity.

156
. AIR 1947 PC 67: (1947) LR 74 IA 65, 76.
2. AIR 1960 SC 1125: (1961) 1 SCR 14.

I7021
 India there
n is a because the language uscd is the Engl1sh
speci:l ditficnltv
werc used the problein
one of the various Indian languages
guagc. Even il
WOuld continie. because. no language is known to all the
Indian pcople, with
the Tcsult that shades of imeaning are not always clcar. Words
derive colour Irom
1i, "blurred
heir context and many wonds in daily use have. as Wittgenstcin puts
be fairly clear but fnnge
cdges The central meaning of a word would perhaps that the draftsman
meanings are not always obvious. It is. therefore. necessary
which he
should use, as far as possible. one word only for a particular meaning
and
has in mind. For doing this he should frequently consult dictionaries
to choose the
anthologies of synonyms. Even so. it will not always be possible
have to take into
nght word, and judges, when interpreting a statute, will
account vanous considerations. For example. it is very difficult to draw the line
between drunk and soker. between thick and thin, between long and short,
reasonable and unreasonable, few and many, rich and poor, etc.
Another requircment is that the draftsman should avoid words which may
have emotional overtones. The Preamble to the Indian Constitution is highly
sonorous, inspiring. evocative and so fully charged with emotion, that the result
1s, in trying to use it for the interpretation of various Articles of the Constitution,
leamed Judges have not been able lo see with the same eye., The learned advise,
quoting Montesqieu, that 'it is essential that only such words should be used by
the law-giver as are bound to produce the same notion in the minds of all men
but this would be a task for a superman. Even so, if he draftsman remembers
his objective he would be able to avoid many pitfalls. Sir Ermest Gowers' advice
is,
The whole of our modern drafting technique seems to be based upon
the obviously fallacious assumption that it is possible. to cover every
particular eventuality. Is it not time we gave up trying to do the impossible
and concentrate instead in laying down broad general principles?""
According to Prof Harry W.Jonces,
I t must be kept in mind that so called interpretation, on issues which
were wholly beyond the foresight of the draftsmen of a statute, is, itself,
Jegislative in character. The substantial issue is whether the inevitable
judicial legislation is 1o forward the policy of the legislative authority or to
retard its fulfilment. The judge, when he must act as a lawmaker to fill in
the gaps of a statute, cxercises not original legislative power but delegated
ower, comparable to that conferred upon administrative officerS possessed
of rule-naking or subordinate legislative authority. Each has the duty of
implementing the general policy of an enactment with detailed rules
applying that poliey to the infinite variety of unforeseeable particular
ations of fact. The circumstance that judicial legislation is, in effect,
retroactive, is but another reason for insisting upon the necessity of its
consistency with the general legislative policy.""
The word "reasonable" in ""reasonable restrictions" in Article 19 of the
Constitution is one such word which requires judicial ingenuity and perspicuity

157
in its
nterpretalion. Suppose a restriclion is imposed on a fundamental
Prof Alan Gledhill remarked in 1964 in
his *Repul>lic of
right.
ndia':
The Dircctive
Principles set out a nunber of objectives to guide
legislative and executive policy. They are no: enforceable in a court but a
study of the legislation of the Indian
Teveal that Indian Ministers have Legislatures since Independence will
discharged their constitutional duty to
apply the principles when sponsoring legislation. The
without importance in courts; sonme principles are not
Fundamental Rights
the may be restricted
in
public interest; it the object of a restriction is to attain
included in the Directive any objective
in the public interest."
Principles, no one can be heard to say that it is not
But the
point is, while the courts will not hear an
restriction isnot in the argument that a particular
public interest, courts will have to determine whether the
restiction is 'reasonable' and if it is not
In the author's
reasonable, what would be reasonable.
opinion
courts should have
played a more activist role and not
merely acted brake on legislative
as a
counsel will place before them all the impulse.
This they could do, because,
relevant material.» After
adopted Democratic Socialism, to be attained by Fabian methodsall,andwe have
what Herbert Spencer calls the 'New not by
Toryism'.
There are many words which have different
context. The draftsman will have to be
meanings depending upon the
careful to avoid such words and must
choose a synonym with a more
precise meaning. There is a story of a lady who
did not know the difference between
Catholicism and Protestantism: When she
was introduced to two clergymen, a Catholic and a
that the Catholic Protestant, and she was told
gentleman was Father so and so', she turmed to the other and
asked him if he was also a father, to
which the Protestant gentleman replied,
"No, I am a married man and have four children.'
Therefore,
a command over the
language, a thorough knowledge of the law,
acquaintance with other relevant material relating to the law, a clear
of the objective to be achieved, and the perception
capacity to express in clear and
precise
language how the legislature intends to achieve the object, are
essential in a draftsman. It was Stendhal's absolutely
position that there is
example of perfect style and that is the Code Napoleon. It was said that only
one

would read that Code once every year in order to make his
Stendhal
style more precise.
Before the technical details are discussed there are some
more concerned with the mechanical
aspects which are
aspects of drafting:
(1) The draftsman should have a separate page for each section and
he
should leave a sufficiently wide margin tor
any notes or corTections as they
occur. Such a method would also facilitate
easy reference, because, if a
particular section has to be referred to for the purpose of drafting another
section, a loose sheet will be more helpful than
turning over pages to find out
the scope of an earlier section. Moreover, the
arrangement of the sections can be
changed if necessary.

158
 ) Thc draftsnan mut have at
least one good
Cxplaining the usage of words. Chambers" and the Concise dictionary, and another
r e ideal for these
Oxford Dictionaries
purposes. It is also necessary to have Roget's Thesaurus' for
choosing the next appropnate synonym or even for
the first arriving at the precise word
in
place.
(3) If a team of draftsmen is working
from consultations between
on a
long and complex measure, apart
them, there should be someone to supervise and co-
ordinate their work for the production of a consistent and
integral whole.
Drafting the text of a statutc or a Constitution is not just an art but is a skill.
It is not disputed that
good legislation is that the text of which is
a

unambiguous, precisc and there is no repetition of words plain, simple,

or usage of
superfluous language. The skill of a draftsman in the context of drafting
statute or the Constitution lies in
brevity and
employment of appropriateIt
phraseology wherein superfluous words or repetitive words are avoided.
appears that the aforesaid principle was kept in mind while drafting the
Govermment of India Act, 1915; the Government of India
Act, 1919 and the
Govemment of India Act, 1935. The draftsman of the Constitution of India has
1aken care to maintain brevity and the phraseology used is such that there is no
ambiguity while making provisions of the constitutional institutions in the
provisions of the Constitution.4
PUNCTUATION
Crawford, in his book on 'Statutory Construction', says that when a statute
is carefully punctuated, there is no doubt its
as
meaning, weight should
undoubtedly be given to punctuation. Punctuation, therefore, certainly has its
uses but the
general tendency of courts is not to allow it to control the plain
meaning of a text. This is because the draftsman very often does not use
punctuation marks properly. It is, therefore, essential that some knowledge of
the use of punctuation be necessary.
It need not be denied that puncuiation may have its uses in some cases, but
it cannot certainly be regarded as a
controllingg ement and cannot be allowed to
control the plain meaning of a text.
The
It has to
Stop.--The most important punctuation mark is the period
be placed at the end of a complete sentence which
or full stop
is neither
exclamatory nor interrogatory. Of course, in legislative drafting exclamatory or
interogali ve sentences will not occur. An incomplete sentence should however
end with a dash. It should be noticed carefully whether the final stop should be
nside or outside the quotes. One can tell easily by the sense.

3 Rugets International Thesaurus', 3rd Edn, Oxford ard IBD Publishing Co. PvI. Ltd., 66
Janpath, New Delhi 110 001. This is the only true Ro ' s Thesaurus which preserves Peter
Roget's Original Methodology and Scheme. gt ersions and editions carrying Roget's
name merely purpost to be the 1eal thing.
4. Election Commission, In re, Special Ref. No. I of 2002. (2002) 8 SCC 237.
5. Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 Sc 369.

159
 The conma is a matter of
sense and
makes the meaning clcarer cxperienee. The only ulc is that if it
put in a comma; if not. leave it out. A comma is uscd
1o mark off a
plhrase or a clausc when it is thonght that it makes the sense clearer
to do
s0. t is also used to mark a serncs of
words. phrases. or clauscs. Another
use of the comma is when a
word is placed out of its
of stress. This use is hovwever natural order for the sake
unlikely to occur in legislative drafting.
How far a clause whicl: follows
upon a commna governs every clause that
precedcs the comma is a matter not free from doubt.6
The semicolon is
than
an
important and interesting mark
use. It is stronger to
a which is used more for a
comma,
pause; but the semicolon does not
imply a complete break like the full stop. It only makes a
the same time a link between
sentences
partial break and is at
appearing
implies that what follows at least partially on the same
subject. It often
explains and
often used instead of a comma amplifies
that comes before it. It the sentence
"and or 'or or "but.
is when it is followed by
Colon-It implies that what follows
that comes before it. It is explains and amplifies the sentence
of some word such as
gcnerally used before a
quotation, or to take the place
'namely'.
STYLE
The persons who are
three different categories:
likely to be affected when a new law is made fall into
(1) The persons who make the law;
(2) Those members of the State whose
affected by the law; and rights and liberties are likely to be
(3) The judiciary.
The purpose of
known
legislation is to establish legal rules and to make
to those who them
likely to be affected
are
by those rules.
condition is
simplicity.|While Therefore, the first
opening chapter of this book, precision
is essential, as it was
too much adherence to
indicated in the
unnecessary complexity and, therefore, to precision may lead to
Northanger Abbey', the heroine Catherine Morelandobscurity. In Jane Austen's novel1
enough to be unintelligible."JTo achieve says, "I cannot speak well
the use of words,
directness towards the
simplicity there must be economy in
used, and some kind of order. thought, a
familiarity of the language
Brevity is, of course, the soul of wit, but
to such an extent as
to sacrifice
economy should never be carried
become obscure.'"' The famous clarity. (Horace said: "'I labour to be brief and
French poet Boileau advises:
Polissez le sans cesse, et le
repolissez:
Ajoutez quelquefois, et souvent effacez

6. State of W.B. v.
Swapan Kumaa (1982) 1 SCC 561: 1982 SCC
(Cri) 283.
 (Polish i1 without ceasing and
often rub polish l again; add occasionally, and more
out.) )
In order to be
kind
simple onc has to be straightforward.
Circumlocution of
musi be avoided.
Therefore, it is necessary that a draft should be readevery
over
and over
again and scrutinized to see if there are any roundabout
It is obviously expressions.
necessary that familiar words should be used for
the draftsman's idea instead of the conveying
unfamiliar. Hence a draftsman should have
with him not only an
ordinary dictionary but a dictionary of synonyms from
which he can choose more familiar words and avoid obscure ones.
As far as order is concermed the
draftsman should maintain some kind of
logical relationship between one part of the draft and the other. There should
obviously be spme order in the
chapters and within each
chapter.
PRECISION
Precision and brevity are generally the hailmarks of legislative
draftsmanship.?
To be precise a draftsman nust be clear in his mind as to what exactly he
wants to say and he must also have a
capacity to
CNapoleon is supposed to have said, *"Be clear and the exactly
say what he means.
rest will follow." This
certainly is true to a great
extentIf one is clear in ons's mind as to what exactly
one wants, one will generally find the
necessary words to clothe one's ideas.
CBut, Dr Samuel Johnson, in one of his
Essays, points out: "It is asserted by
Horace, that if matter be once got together, words wilI be found without any
difficulty'; a position which, though sufficiently plausible to be asserted in
practical precepts, is by no means strictly and philosophically true. If words
were naturally and necessarily consequential to sentiments, it would
always
follow, that he who has most knowledge must have most eloquence, and that
every man would clearly express what he fully understood." One obvious hint
is to use simple and direct sentences, each
containing one idea, for such
precision. They may not always be elegant, but elegance, as the great Einstein
said, is a matter for the tailor. What is wanted in law is clarity and precision and
if elegance 'happens', well and good. The active voice with finite verbs should
be preferred.
There are certain miscellaneous maters relating to style about which there
is general agreement. They are references to dates, numbers,
legislation,
spelling, capitals, symbols and abbreviations. As regards dates, the best method
of referring to a date is '2nd January, 1979'. With respect to numbers, it is best
to use figures instead of words, and with
regard to figures the commonly
accepted Arabic figures should be used. Unfortunately there is a tendency to use
Hindi figures for numbers and this is bound to cause confusion even if all
Indians become familiar with such numbers. When numbers are so important in
international natters, commonly accepted symbols should be used. In such a
matter misguided chauvinism has no place. As regards reference to legislation

7. Maktool Singh v. State of Punjab, (1999) 3 SCC 321:19SCC (Cri) 417.

the conmmonly 1Cceplcd practice is to use figures and noi words: 1or Cxample.
Scction 19 or 'sub-scction (3) instcad of 'Section nineteen' 'or sub-section
three. Also a reference to sub-paragraph (ii) of paragraph (a) of sub-section (2)
of Section 15 is bettcr refencd to as "Section 15(2)(«)(ii)°". Where reference is
made to a provision of the same statute, it is not necessary to use the words

*this Act: but where reference is made to aprovision of some ouher

lcgislation. then the refercnce should include a reference to the short title of that
enactment and an appropriate marginal reference should also be made. When we
it is
are
dealing with spelling. best
to
use the in a
spelling standard dictionary. In
any event. what is necessary is consistency, and if a particular spelling is used
for a particular word the same should be maintaincd whenever that word is used.
With respect to capithls the rule is-when in doubt do not use a capital.
Moreover, as in the case of speling, in the use of capitals also, there should be
consistency. Another general rule is that words which are used in a general
sense do not take capitals. In legislation, there should not be any objection to the
use of symbols and abbreviation unless the meaning becomes obscure as a result
of such usage.
There are however, certain special words and phrases with respect to the
use of which the draftsman should be very cautious. For example, the words
"aforesaid 'said, "aboOve-mentioned and 'aforementioned' are best avoided,
and instead a specific reference to the provision referred to should be made.
Similarly, in using the words 'preceding', 'foregoing', 'following' care should
be taken and the draftsman could not do better than to avoid them and making a
more specific reference. The same observatiohs apply to the words 'above' and
below'. So also in the case of 'herein' and "hereinafter'. The word 'hereby' is
used by a draftsman more often than is necessary; for example, "Section 23 is
hereby repealed*". The word 'hereby' is unnecessary. Words like 'namely or
that is to say', should rarely be used. The words whatsoever, 'wheresoever',
and 'whosoever are also to be avoided; instead, the words 'whatever,
wherever and 'whoever' should be used. Another phrase to which a draftsman
very often resorts is 'it shall be the duty of. The usage is not incorrect but it
would be less pedantic and certainly more simple and exact to merely use the
word 'shall. Whenever discretion is sought to be conferred instead of using the
phrases it shall be Jawful for' or 'shall not be lawful for', it is better to use the
simpler word 'may'. A constant reference to "he provisions' of the statute, is
also as a matter of style to be avoided. For example, instead of saying
'notwithstanding the provisions of any other law it is sufficient to say
'notwithstanding any other Jaw'.
In using the following words special care must be taken by the draftsman.
They are"and", "or" and "nor": "in", "all", "each", "every", "deem", "less
than", "mnore than", "not exceeding", "exceeding, "above", "below", "over",
"under", "notwithstanding", "subject to'", "otherwise", "shall", "may", "such",
"same", "where", "when". "unless", "except", "existing" (existing may mean
existing at the comnencement of the Act or thereafter), "before", "after",
forthwith", "as soon as possible", "immediately", "without delay", "without
any reasonable delay", "as soon as may be" and "without undue delay". In view
 O the 1Tecone1lable dccisions on the
Ejusdem Generis nle and the expressio
421S le. t is best to statc the class
first and then enumerate the items intended
o be exCepled.

As
regards tcnse. the nornmal mle is to use the present tense for the
of the law and indicatc operation
by appropriate words conditions precedent in the past
ense and
applicability of the Act to past and future cvents by using thephrase
"before or after the Act"".
Since the "masculinc cmbraces the
"feminine and "singular""
*"plural" it is in order to use the masculine singular form.
includes
If exceptions are
intended they should be indicated.
In everydrafting pracess there are five stages: (1) an understanding of what
is wanted, (2)analysis, (3) design, (4) composition, and (5) scrutiny.
As regards the first stage the draftsman should be
very clear in his mind as
to what a particular department of the Government, which is
interested in the
statute, or the Minister at whose behest the drafting is being undertaken, wants.
Constant consultation, therefore, is necessary before the draftsman can make his
draft final. The draftsman should have an
understanding of the background
information so that he can fit in the legislation in proper perspective or context.
The main object of the statute should be clearly and fully stated; the means
whereby such objects are to be achieved should also be set out elaborately and
clearly. The draftsman should have a thorough understanding of the legal
implications and difficulties; for example, he should know whether the
particular matter is mentioned in the list with respect to which the legislature is
competent. He should also know whether the particular legislation can be
included in the item set out in the list. After satisfying himself of the legislative
competency, he should make sure that no provision of the Constitution is
violated, such as Fundamental Rights and other Articles such as Articles 301 to
304. He must make sure whether prior sanction of the Govermor or the President
is to be obtained; in which House of the Legislature the Bill should be
introduced and, whether subsequent assent of the President is necessary. Thus,
he must have a comprehensive knowledge of the Constitution and legislative
procedure. Suppose a sales or purchase tax is to be imposed, care skould be
1aken to see if inter-Statc sales are involved. The draftsman should also take
care to see that legislation does not go contrary to Directive Principles set out in
Part IV of the Constitution.
The draftsman should then enter the second stage, that is, he should analyse
the existing law, the potential dangers of violating provisions of the
Constitution, and more than anything else, he must have pragmatic intuition,
i.e., he mnust be certain that the statute which he produces will be workable. All
decisions of courts, reports of any committees, discussions in journals, in short,
all relevant material must be analysed. Any prior attempts or legislation in our
and other countries should be examined. We become wise only by avoiding the
errors connitted by others. "A legislation is made to be passed as razors are
made to sell." One danger lies in making a statute retrospective. Whether such
retrospective legislation is permissible and whether it achieves the purpose of

163
 making it
rctrospective should be clearly kcpt in mind
statute should violate Publie by the draftsman. No
International Law or go
nations. It should not conflict with against the
existing law unless such conflict is comity
of
in which casc, it should be intendecd,
matter which the draftsman exprcssly
stated. Territorial
should remember. The lawcompetence
is another
much power to the officers of the should not give too
should, as far as possiblc, be avoided.Government; that is, burcaucratic autocracy
At the same
may affect the interests of Govenment time, any proposals which
kept within strict limits. Therefore, departments or
public bodies should be
the draftsman should
authorntics on whom power is ascertain the
intended to be
relationship and the extent of the conferred, their inter se
power. Equally, he should determine
persons are on whom duties, liabilities
and
who the
has the
corTesponding rights and how these
obligations
are to be
imposed, who
enforced. If a rights and obligations are to be
repeal intended it is better to say so instead
is
implication. Above all, practicability
of leaving it to
often forgotten by the or
workability
draftsman in his anxiety to
is a matter which is
very
satisfy his Minister's zeal. produce a statute which would
The third stage relates to
whether design. Here the question to be considered is
legislation is in fact necessary or whether, under the
the same results can be existing law, by
means of administrative
factors must be considered:
instructions
achieved. Two
various connected statutes. If (a)
the position of the new
statute in relation to
the legislation is not of an
short precis of the basic amending character a
objectives to be achieved and the means
objectives are to be achieved should be made. by which those
and developed. It is better Then each topic must be
to make a taken up
proposed clause. Care should be taken marginal note at this stage to describe each
to see
matters should not be that distinct and totally different
included in one and the same Act.
not be tenuous. Sir
Cecil Carrs gives an instance The connection should
of 'the head of an
College, far-off days when such
in Oxford
of celibacy, who appointments
astonished the fellows of
were
subject to the condition
marriage and confronting them with a clause inhisa Society, by announcing his
him statutory sanction'. local Canal Act which
There is also another gave
story:
"More than hundred years ago, when divorce
a
in the modern sense
was
possible only by Act of Parliament, an
was
promoting a Waterworks Bill for his town; unhappily married Town Clerk
with something technical and in clause 64,
about filter beds and mingled
innocent little phrase 'and the
Town Clerk's stopcocks, appeared the
Nobody could explain how these words marriage is hereby dissolved'.
noticed them while the Bill was got there, and, in fact,
going through nobody ever
fast asleep long before Parliament, for everyone was
Assent was given, and thethey got to that clause. In due course
Town Clerk lived the Royal
In the case of
happily ever after."
law may amending legislation there are three types: (a) the
amend by deleting some section or sections, or amending
substituting new materials; (6) the new law may :
deleting and
completely repeal the old one;
8. (1950) 66 LQR 216.
164
 3 n d ) l mighi mpliedly be connected with theeariicr law though apparently it
S a sep:arate cnactment. It would be advisable for the draftsman to collect and
lanfy all judicial interprctations of the portions to be amended. preferably in
chronological order. and make adcquate provision for the errors and omissions
pointed out. The draftsman should consider which category the particular
legislation he is drafting falls into and shouid draft suitably.
be as the composition stage which is
The fournh stage may descrnbed
described by Sir James Stephen in the following words:
With regard to any work that I have done. I have always found it full
of mistakes and when they have been pointed out to me by some other
person. I considered I was under the sanme sort of obligation to him as one is
to a dentist. it is not very pleasant when you hear about it."
Sir Alison Russel also states to the same effect that "every draftsman
knows what a painful experience it is to listen to an amendment being suggested
which spoils the symmetry of his draft'".
The draftsman should, therefore, discipline himself to accept criticism, in
fact he should invite it. He has to discuss the matter with others and consider the
various items of criticism offered in the proper spirit and take full advantage of
such criticism. Each draft produced must be subjected to a careful and searching
scrutiny and one should not be tired if it involves a number of revisions. If there
is no special hury in producing the legislation the draftsman would do well to
put aside his draft for some time and then read it. That would disclose to him the
deficiencies in his draft. A draftsman should not hesitate to use as precedents
similar laws made in other States or other countries. A study of such laws would
iefinitely help him as a source of new ideas apart from the actual wording of the
draft. In using such a precedent the draftsman should also note if any
amendments have been made and also the case law on that statute so that he can
avoid the mistakes and deficiencies of the statute which he is using as a
He will thus produce a better draft.
model
In using referential legislation one technique is the direct amendment of a
principal statute by another statute. The second method involves the adoption or
ncorporalion in a statute of provisions of an existing statute. This is done not by
in
nacling those provisions new statute but by merely referring to them.
the
In the case of such referential legislation there are bound to be legal
complications in construing the legislation, and also, when the incorporated
legislation is subsequently amended or repealed. All these must be taken care of
by the draftsnan. The last stage consists of a very careful scrutiny. Flere t must
be remembered that criticism of a section read and seen countless times
becomes hard. Draling is a field in which 'faniliarity may breed satisfaction'.
Such a scrutiny should be done by more than one person, checking, and re-
checking all references and cross-references in order, not only to clarify all
ambiguities, but also ë corect obvious mistakes. It is true that a court can
correct such mistakes, as for example mistakes in a schedule, but it is well too
remember that the court's power is only to correct obvious slips of
draftsmanship.
165
 The statute should obviously be
arrangcd in parts. The first draft should
then contain a broad outline of how the various
parts should be organised and
arranged with sub-divisions, heads and sub-heads. A fter the first draft is drawn
up. the next stage is to draw up the scheme, consisting of: (a) the long title, (b)
the preamble. (c) the
enacting formula, (d) the short title, (e) the extent and
application, () definiiions, (g) the main provisions, (h) provisions relating to
administrative machinery. if any, () penal provisions, if any, () ule-and
regulation-making power. (k) any temporary provisions, (1) repeal and saving
clauses, and (m) schedules, if any. Such an arrangement would help in the
clanity of presentation and it makes reference easy. Under this head we will have
to consider the various
pats such as headings, illustrations, marginal notes, and
arangement of sections. The real danger in all these nmatters is that the language
of the heading may be utilised and construed in
such a way as to enlarge or
restrict the actual scope of the language used in the
was mentioned in the first
enacting provision. But as it
chapter this is not a real danger if the method
suggested by the author is adopted; namely, if the object of the legislature is
clearly kept in mind then it is very easy to interpret the section, because, we will
then choose that
interpretation which will achieve the object.
It is better to have
general provisions first and then special provisions. Similarly, priority should be
given to important provisions over the not-so-important provisions, and tob
pemanent provisions over temporary ones.
Every Act has a long title and it has a purpose, namely, it indicates the
general object of the Act. In construing any provision of the statute the long title
cansometimes be utilised. That being so, it is better to make it as
elaborate as
possible. Where a long title refers to another Act, the reference should be by the
short title of that other Act.
Next comes the preamble. The
preamble, like the long title, is part of the
Act and may legitimately be used as an aid to
construction. Hence it is not only
necessary but proper to make it as elaborate as possible. Herald J. Laski once
said, "the preamble is at least an authoritative guide which, in the hands of a
competent draftsman, could hardly fail to be an instrument of clarification, a
good means, as Coke put it, for collecting the intent and showing the mischief
which the makers of Act intended to
remedy."" At the same time it is well to
remember that there are obvious dangers in to statetrying objectives of the Act
in a concise and compressed form.
Thereafter comes the enacting formula which, in India, is "Be it enacted
Parliament (-Legislature) in the.. year by
.

of the Republic of India

as follows:-
Next comesthe short title. The function of the short title is to
enable facility
of reference. Lord Moulton described it as a
statutory nickname to obviate the
necessity of always referring to the Act by its full and descriptive title. The use
of theapostrophe in the short title should be carefully watched-for
'Advocates Act' is correct. 'Advocate's Act' is incorrect, because example-
the Act is
concerned with Advocates and it is not possessed
by Advocates in the sense
which would justify the of
use
apostrophe.

166
 The Mante could then deal
with the date of
Cnactmcnt or of any commencement ot the
proVIsion of the enactment. Sometimes some
future date. by a Notification inprovisions
a statute are to
come into forcc at a of
Gazette. 1f that is so. it should be madc the Ofhcial
clear in the clause of the Bill
with commenceiment. dealing
The next stagc is the territorial
there is obviously no application of the Act. As regards the area,
over which the
difficulty because the statute can
only operate in the area
legislaturc has jurisdiction;
but in the
application of the Act to
pcrsons outside, as in the
realm of taxation, statutes
exirateilonally. The competence to may operate
pass such a legislation must, therefore, be
carefully examined by the draftsman.
In dealing vith definitions the word
to be defined must be
inverted A
identified by
commas..definition may, (a) narrow the common
extend its ordinary meaning, (6)
meaning, or (c) limit the meaning of a word which has more
than one meaning.
Remembering these possibilities the draftsman should
carefully define the words by using appropriate terminology. When the word
'means is used it may be taken that the
stipulated is used itis means
completely and nothing is omitted. If the word 'includes'meaning expressed
that
the stipulated meaning is incomplete and that only a part of the intended
meaning is expressed."
In South Gujarat
Roofing Tiles Manufacturers Assn. v. State of Gujarat0,
the Supreme Court held that:
"it is true that 'includes' is
generally used as a word of extension, but
the meaning of a word or phrase is extended when it is said to include
things that would not properly fall within its ordinary connotation. But it
may sometimes mean 'means'."
The expression means and includes' should never be used because the
draftsman would then be trying to put together complete and incomplete
meanings.
Some more rules relating to definitions are-generally, words must be
chosen and given the meaning according to accepted usage. This applies to
technical words also. If words are used in a former statute with a
particular
meaning and the same words are used in a latter statute, it is a good rule to
confine such words to such meanings only. Otherwise, all the Law Lexicons are
useless and may be thrown into the dustbin. Different words for the same
meaning should be avoided and equally the use of the same word for different
neanings should also be avoided. The legislature should be reasonably
consistent. Words defined in the General Clauses Act, 1897 should be given the
same mcaning and should not be defined in the particular enactment. If a
different meaning is intended it is better still to use a more appropriate word.
The draftsman should be imaginative and use words which will stand the test of
time when old words may take in new meanings. Also, (a) a definition skould

9. See also Municipal Corpn. of Delhi v. Tek Chand Bhatia, (1980) 1 SCC 158.
10. (1976) 4 SCC 601.
167
 never inchhde
any substantive
should not be defined. (c) a matter, (b) a word that is not uscd in an enactment
and (d) though it is definition should not inclide
generally done, it is not
fantastic mean1ngs.
a word is to
apply also to its nccessary to statc that a
definition of
Similarly, the words 'unless thegrammatical variations and cognatc
context otherwise expressions.
though it is safer
to use requircs' may also be omitted
them. In AMeux
are always implicd.
v.
Jacobs', it was held that such words
In
legislative drafting parlance
the distinct and
sections and the sub-divisionsnumbered divisions of an
Act are referred to as
numbered in round brackets are of a section which are
also a part of a section
referred to as sub-sections, and
each section as
an Act is of considered a
'enactment' does not mean the separate enactment. The word
whereas a section or
same
thing as 'Act'. 'Act' means the whole Act,
part of a section may be an enactment. But while
to a
provision and numbered referring
words 'clause' and sub-clause'sub-division of the provision of an Ordinance the
with Section 3(54) of the
are
generally used. In view of Section 30 read
General Clauses Act, 1897 as
Section 30 read with Section also the
would not be wrong
corresponding
4(40) and (43) of the U.P. General Clauses
phraseology, though Act, it
it
sound inelegant, to refer to a
provision of an Ordinance as 'section' and to may
numbered in round brackets, as
a
sub-division of such. provision,
'sub-section'.12
The only other natters to which the draftsman should
following: pay attention are the
(1) In many modem statutes, there
is provision for the
administrative tribunals. It is always constitution of
should be a lawyer, necessary that the Chairman of the
Tribunal
tribunal should be suchthough
this is not so in
that rules of natural practice. The procedure of the
(2) There are many statutes
justice are not violated.
of such dealing with statutory corporations. The
corporations must be very carefully and
creatures of statutes, set
powers
clearly out, because, being
them by the statutes.
they can
only exercise those powers which are
given to
(3) Every statute
provides for the making of rules by the Govermment.
must be There
provision for
placing these rules before the legislature and
should also be made that the rules should be provision
be passed by the subject to any resolution that may
be
legislature. This way, legislative control over the rules
effectively established. Further, the would
carefully defined because there should rule-making power should also be
not be any excessive delegation.
(4) In the case of statutes
relating to taxation the
be worded very
carefully from the point of view of thecharging sections should
Revenue. assessee as well as the

(5) One of the main points of confusion which arises in the

statutes is whether a
particular interpretation of
provision is mandatory or directory.
provision couched in mandatory language is interpreted by courts Very often a
as
directory
11. (1875) LR 7 HL 481.
12. Prabodh Verma v. State
of U.P4 ) 4 SCC 251: 1984 SCC
(L&S) 704.
 and
cqually the other
way. Thedraftsman should take care to sce
provision is intended to be that if the
ambiguity icft. It is better to mandatory
have
there should not be
any doubt or
provision is mandatory. In this context definition
a
that 'shall'
the significs that the
noticed. In State of U.P. following
Manbodhan Lal Srivastava, the
v.
serious anomaly may be
held the phrase 'shall be consulted' in Article Supreme Court
directory. But in Union of lndia 320(3) of the Constitution, to be
same
phrase in the first Sankalchand", 'Chandrachud, J.', held the
v.

the same case, it was proviso

to Article
124(2) to be mandatory. Further, in
held that the words 'after
Justice of India' in Article consultation with the Chief
consult the Chief Justicc. 222(1), were mandatory; that is, the President must
(6) In some cases
offences are created
even without mens
liability is fastened upon the master for the rea and vicarious

provisions must be absolutely clear so that theillegal acts of his servant. Such
steps avoid any penal liability.
to citizen can take all reasonable

169

13. AIR 1957 SC 912: 1958 SCR 533.

14. (1977) 4 SCC 193