Clhapier 6

COMMON PHRASES AND THEIR

SIGNIFICANCE IN LEGISLATIVE
DRAFTING

Tihe legislative drafting, as Ihave stated earlier, is an art. Having accepted

this, there is bound to be different styles of drafting and the styles vary
from a countrv to country. However, there is a tendency on the part of the
legislative drafter to use superfluous words or certain common phrases
very often, which does not help in simnplifying the Legislation but makes it
rather cumbersome. Many a time the drafter uses superfluous words or
phrases or even tautologic expressions either as a style or due to ignorance
of the Statute Book or as a matter of abundant cautíon. Lord Macnaughtan
in his famous judgement has observed' that it is not so very uncommon in
Acts of Parliament to find special exemptions which are already covered by
a general exemption. Such specific exemptions are often introduced ex
majori cautela to remove the fears of those whose interests are engaged or
sympathies arosed in favour of somne particular institution, and who are
apprehensive that it may not be held to fall vithin the general eXemption.
Lord Reid had made similar observations' that it is not
the Legislature inserting superfluous provisions under theuncommon ofto find
may be abundant caution. The reference to the influence what
to the Legislative Drafter who is Legislature here is obviously
responsible for insertion of superiluous
phrases in the Legislation which are subsequently voted by the
The superfluous provisions Legislature.
these are common phrases. carnnot lay the foundation for an argument
Insertion of any superfluous provision
that
gives rise to difficuJty of always
that every portion of the construction
Statute has
as Courts starts with a
presumption
necessary to effectuate that purpose. lt soe purpOse and its presence
is only when other was
1. Commissioner for Special provisions of an
ER 28. Purposes of Incone- tax v. Jol1n Frederick, (1891-94) All
2. LR. Conmissioner v. Do-tvdall and Company, (1952) 1 All ER 531.
222

183
in the pteent Chale, we e on; to oder otin comou pha.
olten ud bv the Datter mthe Bllk Vule the ro obetion lo re
these conmon ph.assOn toonr he poper nd cedual neaning lo
the iede, il is nessa to tke popercae so th.at these coon phr.ses
are not used lor he sake ol stve C I) supetluous naDDer
1. As he deems il: lhinks ecssay: cosider necessy
The phrase as he deems h is xery otlen uscd bv tie D.after to deuotethat
the conened person or nheni has a disretiony pover in deicing,
partiula case, or ng is or his deision in the maler. Where astatute
provides for the gronds on vhiha peson is enitled to a certain reief
and confers power On a ibunal to pass orders 's it deems fit, the
everise of the rover 0 ant the relief is not dependent upon the
discreion of the Tnbunal. The Tribunal will have to give its decision on the
basis of the provisions of the law by which it is governed. The words 'as
it decms fit' hink neessary' or 'consider necessary' have been, time and
2gain, used lo confer a discrelion on the concerned authority. But the
legislative Drafter has alwavs to lake into consideration the fact that such
onferring of discretionary power is not in totalily or unfettered. Such a
Ower is alwavs subject lo the provisions of the Act. Even where there is
10 muh indication in the At of the ground upon which discretion is to be
xercised, it does not mean that its exercise is dependant upon mere fancy
Df the Court or Tribunal or Authority concerned. It i, therefor, necessary
hat in using this phrase, the Drafter should be very careful and should use
t where the reference to context permits its use.
?. Any other sufficient reason
The phrase 'any other sufficient reason' is rather superfluous. The Privy
ouncil had held that the words 'any other sufficient reason' occurring in
Rule I of Order 47, Civil Procedure Code, 1908, must be taken as meaning
reason suffiient on the grounds analogous lo those specified immediately
n the previous clause.' The Drafler, therefore, should be careful in using
his phrase. It is avays better lo specily all the grounds or reasons on the
asis of which à deæsiOn is propOsed to be given by the concened
uthority.
. Further and other relief
Bere also no specific purpose is served by using the phrase because there
no specific relief that can be thought of by the term further and other
elief.The other relief which the Drafter has in view, must be spelt out in
e clause itself and should not be Jeft to the discretion of the Courts to
iterpret. No specific advantage is gained by using this phrase.
. Non-obstante dause; notwithstanding anything in any other law;
otwithstanding anything ontained in this A.
). Chhuju kam v. Neht, AlR 1922 PC 112.
184
 ivill ve
he wants lo pOde that the povisiOns ot the peOnt \
ctfed notwithstandin: he Provisos of ny other lw The .othe
Ued y Onobs.nle duse h P.buLu
situaion hat is
AC shall have n ellet notwilhsndn ny otlier
Provision ot
by De
t'itect to a riular provision in the toCe ot oher povsOD: b
diagonicall\ pposite to the provision which he Drale Vns to give
eflect lo.
Many a time the Dater begins the clause with 'notvithstandiny, nythiny,
contained in this Act or in any law for the time being in fore'", with a view
givethe enating part of the section an overriding effect over he otheI
toprovisions of the Act or law mentioned in the non-obstante clause. I| is
equivalent to Saying that in spile of the provision 0r At nmentioned in the
non-obstante clause, the enactment following il vill have its full opertion
or that the provisions embraced in the non-obstante dause will not be n
impediment for the operation of the Act in question.
The use of non-obstante clause, though saves the Irouble of the Dratter in
specifving the effect of the provision he is presently drafting, Creates many
obstacles in interpretation. The expression 'notwithstanding anything in any
other law' occurring in a section of an Act cannot be construed to take
away the effect of any provision of the Act in vhich that section appears.!
In other words ´any other law will refer to any lav other lhan the Act in
which the non-obstante clause appears. For example,a provision beginning
with the words, 'notwithstanding anything in this Constilution' added in
the Constitution by a Constitution amendment Act cannot be construed as
taking away the provision outside the limitations on the amending power
and it has to be harmoniously constructed consistent vith the fundamental
principles and basic features of the Constitution.? It is, therefore, not
always advisable to use this clause. If the Drafter wants to use it then he
has to be careful that the particular provision to which he wants to give
overriding effect does not override such provisions of other lav whiclh the
Court will not accept.
5. Or any other public purpose
The phrase 'or any other public purpose will be insignificant if the public
purpose described in the preceding clause describes acomplete genus. In a
policy of insurance, the insurers were given an option to terninate the
policy if they so desired. By reason of such change or from any other cause
whatsuever'; the words by reason of such change in the context reterred to
any and every act done to the insured property whereby the risk of fire
was increased. The Privy Council in hese circmstances retused to construe
the words 'or from any other cause whatsoever' by the rule of ejusden

J. P. Virudhachalan v. Management of Lotus Mills, 1998 () SCC 650: AIR 1998

SC 554.
2. Dominion of India v. Shrinbai A. Irani, AlR 1954 SC 596.

185
 (OMON JRALND ||||R GN||CAN IN

n s This phrase h.0 pphion wvhee tb ue ol ceenl e e : la

lo be applicd. The phrae theetore musbe Iscd with cre d caution. |
is not n mviol.ble ue of lav: bul it s only
pemiSlble infeence in he
obend hhel of the rnnent do ot requie esricted neanin, lo
le altac hed to the word: of genel mport, the oul will
this phrase n is plain nd ordinary eniny,, he Dfter, always intepit
1ake precauios in using the phrase "ny olher public hereore, h: to
purpose."
6. Having rega rd to
Nomally, the lDraller has a habil of using, the phrase "having regard to"
vhile giving sOme discretioary power to an Executive
Courl instead of specifying he cOnditions which re toAuthority or the:
be taken into
consideralion by the Executive Authority before
On or the decision lo be given by Ihe Court of using he power conferred
Law. The words "having
regard to" when occurring in aStatute should be
the context and the subject maller.' The Drafterconsructed in relation to
nust always remember
that ordinarily these words are understood as "a guide and not a
These words only oblige the authority on whom the power is fetter"."
conferred
consider as relevant data material to wlhich it nust have recourse before t)
giving its decision. Therefore when some Statutory power is to be
having regard to' certain specified provisions, it only means that exercised
those
matters must be takern into consideration. But the Stalutory Authority is not
strictly bound by such provision when in any of such provisions is worded
in a negative form, and an exercise of the power docs not become
or in excess of jurisdiction if hose provisions are not strictly
invalid
followed." In
construing the words "having regard to" in relation to sectlion 3C of the
Essential Commnittees Act, 1955 which provides for fixing of price on sugar
having regard to certain matters, it is held by the Supreme Court that the
words "having regard to" are not strictly mandatory but in essence directly
and if the enumerated matters have been generally considered, the Court
will not strictly scrutinize the extent to which these inatters and other
matters have been taken into account. Further, the words "having
to", certain enumerated matters do not mean having regard to only toregard
those
natters and, therefore, consideration of other relevant matters is not
excluded. When a Court is enjoined lo have regard to certain prov isions in
the trial of the proccedings arnd no regard is paid to them, the trial will not
be "in accordance with the law" and such an error will be liable to
Correction in appeal or revision."
J. Sun fire Office v. lurt, (1884) 14 AC 98 (104) (P'C).
2. Sitamram Sugar Conpany Linited v. Umon of India, AIR 1990 SC 1277.
3. Perry v. Wright, (1908) 1KB 441; Slhri Sita Ran Sugar Conpoy Limited v. lnion
of India, AIR 1990 SC 277.
4. Suraswati Industrial Syndicate Limited v. Unon of lndia, AlR (1975) 6 SC 460.
5. Sitaram Sugnr Company Limited v. Union of ldia, AlR 1990 SC 1272; Malaprubha
Cooperalive Sugar l'actory Limited v. lnion of India, AlR 1994 SC 13L.
6. V.K. Verma v. Kadhey Shuyam, 1961 SC T317.

186
 1TGOSAIVE DRAFING CRINUTLESANID CUNOUTS

convenient to
It is, hecoe, veIY Cssenial or he Datler Ihat hough it is
construction of a
1se phrase "having r'gard to" for achieving brevity in
Statute and ddhere to .a pecuiar stvle of drafting, it is sOmeimes dangerous
nol to specifv he circumsances or conditions which
are to be taken into
consideraion by an authoritv or the Court before exercising any power Or
giVing any decision.
7. Means and includes
Adefinition in the form of 'mean and include' will be Considered as
exhaustive. In other words, the definition will embrace only what is
comprised within the ordinary meaning of the means' part, together with
what is mentioned in tBhe 'incudes' part of the definition. As an example,
reference may be made to he definition of Tobacco in item 4 of the First
Schedule to the Central Excise and Salt Act, 1954. It reads: Tobacco means
any form of tobacco vhether cured or uncured, whether manufactured or
not, and incudes the leaf, stalks and stem of the tobacco plant'.
Considering this definition, the Supreme Court! held that the definition is
exhaustive and tobacco seeds, which are not mentioned in the incusive
part, do not fall within the definition.
It is well accepted principle that the Legislature has power to define a word
even artificially.? This means that the definition of a word in the definition
section may either be restrictive of its ordinary meaning or it may be
extensive of the same. This is a gray area for the Drafter and he has to take
into consideration as to what meaning a particular phrase is supposed to
carry. While defining that phrase, the Drafter must give correct and weli
thought over meaning to it, which is in consonance with the object of the
Statute. When a word is defined to mean' such and such, the definition is
prima facie restrictive and extensive. Whereas, where the word defined is
declared to 'include' such and such, the definition prima facie extends
further. When by an anmending Act, the word 'includes' was substituted for
the word 'means' in a definition section, it was held that the intention was
lo make it, more extensive. Many times, the Drafter uses the phrase
'means' and ' include' todefine certain words. Here again, the definition is
given exhaustive meaning. On the other hand, if a word is defined on the
other hand to apply to and include', the deinition is understood as
exlensive. In section 201(1) of the Licensing Act, 1964, "bar" is defined
to include a place which is exclusively or mainly used for the sale
and consumpion of intoxicating liquor. Relerring to this definition, the

1. Mahalaxmi Ol Mills v. State of Andhra Pradesh, AIR 1989 SC 335 (339-40): 1989
(0) SCC 164.
2. Kishanlal v. State of Rajastlhan, AlR 1990 SC 2269; Feroz N. Dhotivala v. PI.
Wadhwnni, (2003) 1 SCC 433.
3 Kasilingam v. PS.G. College of Techmology, AIR 1995 SC 1395.
4. Gallaleslhywar Dev v. Jangavwa Kom Shantayya Math, (1995) sCC 393.

. 187
 COMON TRASHS AND WLIR SGN|CANE IN
I|GSAIVE DRAE UNG
House of Lords hela hat the us of th wod nude shoved that he
deinilion dii not excude what wOud odinanl nd n comnon Ptlne
spoken of osa bar, and,heretore, counlers used tor serv liquor were
held to be br vithin seion 75(5) of the Act!Similarly, the nclusive
definition of District ludge in Aticle 236(A) of the Constitution bas been
very widely cOnsrued to include hierarchv of Spccialized Civil Courts,
namely, Labour Courts and Industrial Courts which are not expressly
included in the definilion.2 Bul many timC% phrase 'means and incudes'
possess difficulty in interpretalion. The word include' may in eNCeptional
cases be construed as cquivalent to mean' and 'inlude'. Enlry 22 added by
Gujarat Government to Part | of the Schedule to the Minimum Wages At,
1943 is an illustration of such use. The Entry refers to emplovment in
Pottery Industries' and is followed by an Explanation, which reads: 'for the
purpose of this Entry, Potteries industry includes the manufacurer of the
following articles of potlery, namely
(a) crockery;
(b) sanitary appliances;
(c) reflectors;
(d) jars;
(e) electrical accessories;
(f) household wares;
(g) textile accessories;
(h) dyes
() glazed tiles.
Construing the Explanation, the Supreme Court held that the items included
in it were plainly comprised in the Explanation which showed that the word
'incudes' was not used to extend the normal meaning of this expression.
For the same reason, it would be clear that the Explanation was not adding
to indicate by way of abandon caution that he ilems included in it were
comprised in potteries industry. The conclusion was reached that the word
'includes' was used in Explanation in the sense of means and the definition
provided by the Explanation was exhausted.s
The Drafter, therefore, should be careful in using the phrase 'means and
includes'. Wherever there is an intention to cover all the items in a
particular definition, it is always desirable to exhaust the list by including
all the different varieties or kinds into the definition itself.
8. Subject to a contrary context
The normal practice which is commonly used while drafting the Bills is to
provide for 'unless there is anything repugnant' while defining any of the
1 Carter v. Brand Beer, (1975) 2 All ER I58 (164).
2. State of Maharasl1tra v. Labour Law Practitioners Association, AIR 1998 SC 1233.
3. South Gujarat Roofing Tiles Manufuctures Association v. State of Gujarat, AIR 1977
SC 90.

188
2221 LGSLATIVE DRALING RINOLES AND THCHNIUES)

tems used in the Bils. When aword bas been defined in the interpretaion
clause, rima face, that definilion governs whenever that word is used in
the body of the Stalute. If the Drafler has lo deine a particular term in an
nacment (whether by cnlarging, or by restricting the ordinary meaning of
a word or expression), then that lem must, in the absence of clear
indication to the conrary, be given the neaning, intended. A definite word
when used in the body of the Stalute may have to be given a meaning
different from that contained in the interpretation clause. In order to cover
such an eventuality, a qualificalion is added to the definition clause that the
1words defined therein will have the meaning as per the definition unless
there is anything repugnantin the subject or conlext, or unless the context
otherwise requires'. Even in the absence of an express qualification to that
effect, such a'qualification is always implied and the Courts of Law will
always interpret the words with reference to their ordinary meaning
keeping in view the purpose and intention of the Legislation in which they
are used and defined. The Drafter, therefore, has to be careful in defining
the words in the Legislation. By simply annexing a phrase 'unless there is
anything repugnant in the subject or context', the responsibility of the
Drafter does not come to an end. He will have toexert himself in giving a
correct terminology in defining the words in their proper perspective if any
purposeful meaning is to be given to the Legislation. Moreover, it is always
to be prayed that any slip on the part of the Drafter in defining the words
and phrases in the Act will bring Parliament or Legislature into disrepute.
lt is awell accepled norm and practice of the Judiciary that Legislature or
Parliament is always has aproper intention and never commits a mistake.
So the Court will always interpret the phraseology of the Act in reference
to context for which the Act has been enacted. The Drafter, shouid,
therefore, while drafting a definition clause should take all the precaution
that he is not using any superfluous words to give an incorrect meaning to
the words used in the definition in the Act.
9. Against the provisions of this Act
While using this term or phrase, the Drafter has to be very careful. He
cannot make a general statement that a particular provision of other Act
will not be having any effect with respect to the provisions of the Act in
question. Where the intention is to accept or override the provisions of the
Act or any other law then specific provision with reference to that aspect
is necessarily to be included in the Act itself.
10. As nearly as may be
In using this phrase one has to be very careful as to what exactly is to be
provided in the Act. If it is not possible to conclusively provide in the Act
what is mean by as nearly as may be then the intended purpose can never
be implemented or achieved. The expression 'as nearly as may be half in
Article 316 of the Constitution, for example, indicates only an
approximation. I can be read as equivalent to 'not more than half.! In
1. Raghunatlh Rao v. State of Orissa, AllR 1955 Ori l13.

189
 (OMN1ON TIRASES AND TER
|OLAIVE DRAUNGSIGNIFICANCE IN 2226

other WOds this phrase s veIy varue

and always fails to dhieve its
PurpoSe. As 1ar as p0Sble, tlhe Draíler should avoid it and should not use
it in Legislation
I1. As far as possible
This phrase als0 CIeales more
a persOn carying on rade hasnischief than solving il. For example, when
to lake precautions, as far as
conneion willh a prescribed maller, the expression 'as lar aspossible,
in
would mean as far as possible possible
consistently with carrying on the trade in a
proper manner. Here also the Drafter
phrase. It is always betler to has lo be very careful in using this
or subject to which, one has enumerale the conditions or
lo conclude his action. circumstances on,
12. As soon as possible
The phrase ´as soon as possible' refers to the
possible to prescribe an åctual time frame this time frame. Whenever it is
To do a thing ´as soon as phrase should not be used.
possible'
with an undertaking to do it in the means to do it within a reasonable time,
great advantage is shortest practicable time. Therefore, no
only be used in the achieved
by using this phrase and the phrase
should
given time frame forcircumstances where it is not possible to ascertain
doing or not doing a particular act. It is the
advisable to use the phrase 'within reasonable always
13. As
time'.
the Court shall see fit
This phrase also leads Drafter to
nowhere. As has been stated earlier, the
Court always has to take into consideration
has to decide the matter with the provisions of the Act and
reference
not have the discretionary powers to
to those provisions. The Court
does
decide the
phrase, therefore, is construed as, having regard to matter as they like it. The
respect which the power is to be exercised by the
of the circumstances in
Courts.
14. In pursuance of any enactment
The use of this phrase
now-a-days is very common. Where there is a
provision of law limiting the time or regulating
actions for things done in pursuance of an the procedure for bringing
entitled to the benefit of protection of such enactmernt, the dependent is
provision, if he
in the existence of aset of facts,
which would have justifiedhonestly believes
him under the
enactment to do things complained of. By using this phrase the only
advantage that the Dra•ter gets is that all actions
Government, the subject, or the Courts, are
by whether taken by the
Statute. But this is always a general condition. Sowithin the four corners of a
provide any advantage to the Drafter except the using this phrase does not
legal style. satisfaction of providing a
15. Except where otherwise expressly
enacted
This phrase is used to give an effect to an
express provision found
anywhere in the Act or in any other lavw. It is an attempt
of the Act in question will be that the provisions
subjected
laws. The situation here is very peculiar,to any specific provision in other
because it is always possible to

190
 IGSLAIVE DRAFDNG CRINCPLSAND |CUNIQUES)

identit' a partiular provisio), which is to have an effect over the preser

Tegislation. Beller course vould be to eily the provisions in pariCular in
SPeifi terms.
16. Record its reasons in writing
that the
This phrase assNes great importance espccially where intention is
Court should give aspeaking decision. Normally, this phrase comes handy
where it is provided that the Court shall not give a punishment less tharn
an amount of fine or term of imprisonment. In such asituation, there may
be cirCumstances wherein tlhe Court finds that a particular person, accused
of acrime, cannot be punished with the minimum imprisonment provided
in the Açt. In such a situation, it is always provided by way of a Proviso
that the Court may grant less than the minimum imprisonment provided in
the section for reasons to be recorded in writing. The phrase is very useful
and should be used by the Drafter in circumstances explained above.
17. Ejusdem Generis
The Drafter often commits an error by using the phrase 'ejusdem generis". It
is essential for application of the ejusdem generis' rule that enumerated
things before the general words must constitute calegory or a genus or a
family which admits of number of species or members.' It is requisite that
there must be a distinct genus which must comprise more than one species
and it is clearly laid down by deciding cases that the specific words must
form a distinct genus or category. The Drafter, therefore, must have a clear
idea in his mind as to the specific group of genus which he wants to
include in the definition. If the specified things preceeding general words
belong to different categories, the rule of ejusdem generis will not apply.
Mention of asingle species does not constitute a genus. For example, in the
of the
phrase "a salary or income", as it finds place in section 60(2) construed
Presidency Insolvency Act, 1909, word 'inconne' has not been
one
ejusdem generis for the preceding word, 'salary' which signifies only
species and does not constitute a genus. Similarly, the expression
'discharge dismissal' in item 1 of Schedule IV of Maharashtra
or
Practice)
(Recognition of Trade Unions and Prevention of Unfair Labour the word
to limit
Act has not been construed by the rule of ejusdem ceneris
that the wider word
discharge' as a matter of penalty on the reasoning'dismissal' and neither
'discharge' does not follow the more limited word Drafter,
very genus. The
of them is a genus or species of the same phrases by
therefore, will have to use caution in defining the words or
using the rule of ejusdem genesis.

State of Bombay v. Aligston, AlR 1955 SC 810.

Madras, IT 1999 (1) SC 16.
2. P. Veerswamy v. The Official Assignee, High Court, 546: (1999) 6
3. Lokmat Newspapers, Private Limited v. Shankar Prasad, T 1994 4 SC
SCC 275.

191