Legislative drafting notes PDF

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LEGISLATIVEDRAFTINGLegislative Drafting. 'Nomography' is the name given to the subject that deals with the drafting of laws. It is, in other words, Legislative Drafting in a broad sense. The objective of 'Legislative Drafting' is to attain beauty and utility, and, the draftsman's major responsibilit...

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LEGISLATIVE DRAFTING

Legislative Drafting. •

'Nomography' is the name given to the subject that deals with the drafting of laws. It is, in other words, Legislative Drafting in a broad sense. The objective of 'Legislative Drafting' is to attain beauty and utility, and, the draftsman's major responsibility is to attain these two or strike a harmony between them.

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The draftsman is a 'creative artist’.

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He gives form or shape to ideas, converts vague ideas into concrete words, and reduces proposals: social, economic, political legal, reform etc. into writing.

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Legislative drafting mainly deals with the drafting of bills intended to become a part of statute law.

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In a broader sense, it includes the drafting of statutory orders, rules and other instructions issued by the Govt.,

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It also includes the drafting of bye-laws of corporations, municipalities and other forms of subordinate legislation.

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‘A perfect draftsman is not born yet’.- Bhakshi - An introduction to Legislative Drafting.

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But, to aim at perfection should be the aim of all draftsmen.

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The subject legislative drafting, shows the avenue to reach this perfection.

Montesquieu’s rules on Legislative Drafting • Dr. C.K. Allen made an excellent summary of Montesquieu rules on Legislative drafting as contained in his work, "Spirit of laws" (1948). It can be stated thus:- . (i) Concise and simple style; (ii) Terms chosen should be absolute. It should not give rise to differences of opinion; (iii)To deal with real and actual matters; hypothetical situation should be avoided; (iv) Simple reasoning of an average man to be adopted; (v) No confusion should be created in the main issues dealt with, by a number of exceptions, limitations or modifications; (vi) The provisions should not be argumentative - Avoidance of detailed reasons being given, as they would give rise to controversies; and vii)Maturely considered and of practical utility. • C.K.Allen stated that no perfect draft is possible, and it is only an ideal • "To demand perfection of expression and sense is to expect infallibility, not only of human foresight but also of human language, and the fact that it is unattainable is one of the serious draw-backs of Statute Law“ • The draftsman should make efforts-to reduce doubts, ambiguities and mistakes to a workable minimum

ST STEPS EPS IN LE LEG GISL ISLA ATI TIVE VE DR DRAFT AFT AFTIN IN ING G • The work of a draftsman is a creative art giving form to ideas • The whole art of drafting is the result of a synthesis. The five stages are • (1) Understanding, (2) Analysis, (3) Design, (4) Composition, and (5) Scrutiny. • The various steps followed by draftsman are 1. Equipping himself with actual requirement of department or agency for whom he is expected to draft a bill 2. Knowing the problem –Specific objectives are to be familiarised 3. Related law- To avoid legal uncertainty a through and full account shall be taken about the already existing law 4. Work as a team 5. Outline or analysis – Cohesive plan of organisation and arrangement should be developed from the beginning 6. Implementation of Policy -To give legal shape to the policy proposed by the administrator with simplicity and clarity 7. Beneficiaries -Laws intended to a particular group may very well be couched in the terminology most familiar to that group 8. Attention of details : Like a good architect the legislative draftsman must sketch the broad outlines and anticipate the concrete details that determine whether a generally good idea will actually work. 9 Vertical and horizontal approach Normally the draftsman deals with the material "vertically“ After dividing the subject matter into parts, subtitles chapters or sections, he tries to complete each unit from top to bottom Then each segment is to be examined "horizontally At this stage use of words and terms, use of technical matters or references, citations to other statutes and such other details 10. Revision The draft is to be revised as many times as may be necessary to produce a professionally satisfactory result Change in language can be brought about to make the draft readable as possible

Measures to attain clarity • Reed Dickerson has suggested a number of measures to attain clarity in legislative drafting • • • • • • • • • • •

The drafting of statutes aim at clarity, conciseness and comprehensive coverage rather than aesthetic beauty It is essential that a statute is a clear, lucid and simple expression of the intended purport The first principle suggested by Montesquieu is that the style should be both concise and simple Grandiose or theoretical phrases are merely distracting surplusage. Primary object is to make the meaning of his text clear and unambiguous Brevity of expression may be attained with out the sacrifice of clarity If brevity of expression leads to obscurity the matter may be further elaborated to bring out the intention clearer. Referential legislation shall be reduced to the minimum Sometimes one reference may lead to another and thus the result would be most confusing Draftsman must express the scheme in clear and unequivocal language He must ensure that the bill will carry into the law precisely what the sponsors intend

PRECISION AND SIMPLICITY • In legislative drafting it is difficult to remain faithful to the requirements of precision and simplicity at the same time • Good draftsmanship depends on the power of clear, lucid and simple expression of the intended purport • As the laws of the day might affect all the people from "cradle to grave," it should be easily understandable by the ordinary people • After knowing what exactly is to be included in the enactment draftsman must find clear and appropriate language for expressing it • Justice Krishna Iyer -The drafting methodology should adopt directness of language and avoid involved reference and obscurity • The draftsman should always try to express himself in simple English • Should avoid long words and long sentences • Should not use more words than are necessary to make the contents clear • When technical matters are involved technical expressions will have to be used •

But the same meaning should be given to the same word throughout the draft

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Different words should never be used to describe the same thing

PRECISION • Another essential for an ideal draftsmanship is that simplicity shall not be extended to the extreme sacrificing "precision" • The essential terminology which expresses the ideas of the sponsors of the legislation should be brought to light by the draftsman •

For this purpose the language used shall not be too broad or too narrow

• It has to cover the subject-matter to be expressed • As far as possible passive voice shall be used in drafting • Different words shall not be used to denote the same thing in a statute • Precision shall not be extended too far • Each word has be weighed and tested, measured and refined, and fitted into a product which will not cause any harm • At the same time it should reflect the exact idea required to be brought out • Arithmetical perfection may be an impossibility in legislation • Even then it is inevitable that the draftsman must try his utmost to reduce doubts, ambiguities, forseeable difficulties and the like to a workable minimum • His success depends upon the extend to which he achieves this end

• An Indian Legislative draftsman additionally requires the following • (i) An intimate and full knowledge of the Indian Statute book

ADDITIONAL REQUIREMENTS OF AN INDIAN DRAFTSMAN

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(ii) Familiarity with legal principles as expounded by the Courts

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(iii) A full and intimate knowledge of the Constitution, particularly fundamental Rights and provisions relating to distribution of legislative powers between the Centre and the State

• (iv) Knowledge of procedure in Parliament or Legislative Assemblies, administration, Courts at work including societal living conditions. • (v) Draftsman should be aware of the rules of interpretation adopted by the Courts •

If the draft is not expressed in simple language, it is a matter of Judiciary to interpret

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In Vaswani v. State of West Bengal the Supreme Court ruled that "lack of Legislative simplicity has led to interpretative complexity”

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The Constitutional and other legal validity of the laws can be challenged in a court of law

GENERAL PRINCIPLES TO BE FOLLOWED BY A DRAFTSMAN

• To get a clear understanding of the law as it stands • Study any existing legislation regarding the matter carefully to look whether the new legislation is actually required, or desired end can be obtainedby framing rule • Ascertain the judicial decisions or matters under consideration or custom • Should prepare a clear statement of what the law is and in what it is proposed to alter • Familiar with interpretation Act locally applicable and thorough knowledge of General Clauses Act ,1897 • Hasty drafting is to be avoided and if compelled to draft a bill urgently should do the best • While amending an Act of general application special care must be taken • Should use simple English • Language should not be too narrow or broad

• Draftsman should refrain from using passive voice as it produces uncertainty • Should not vary the spelling of each word • Different matters should not be dealt with in the same Act • Shall not insert or annex a clause froeign to what the title of the Act import • While drafting a bill the main principle is to be considered • It should be stated with clarity and brevity at the commencement of Bill • Section which depends on another Section should not come before a Section on which it depends • Suitable provision for implementation should be in the Act • Short title and definitions section is placed at the beginning • Temporary and Transitory provisions should be placed at the end • Matters in detail should be placed in a Schedule • List of statutes intended to be repealed is to be given as separate schedules

Moral principles to be followed by draftsman • Statute should not confer power with responsibility • Act imposing far reaching reforms shall not be brought into force immediately • Obligations impossible of performance should not be imposed • Jusrisdiction of ordinary courts should not be excluded unless there are strong reasons • Immunity from liability given to state agencies shall be kept to minimum • When jurisdiction is given to determine questions of right provisions of appeals should also be provided • Legislation should not be inconsistent with the elementary reasons, justice or common sense

• The Long Title •

The title given at the beginning of an Act

• Is not given as part of the provisions •

Usually it starts with the words, "An Act to provide .....

• Preamble : • This is a preface to the Act

General frame of a statute

• It has been said to be a key to open the minds of the makers of the Act and the mischief which they intended to redress • It may be referred to for assistance in explaining the scope and objects of the Act •

Whenever added in a statute they are given as part of the Act

• It is now limited to constitutional matters of application of international conventions • Enacting Clause : The form adopted after 26th January 1950 is as follows: "Be it enacted by Parliament in the ………year of the Republic of India as follows“ • Short title: The Ist section in an Indian enactment usually given the "short title" of the Act. The year of enactment is added to the short title; e.g "This Act may be called the ………. Act, year • Serves as signboard for the act main object is to facilitate citation of the Act • Should be simple and short • Must not mislead the reader by concealing or overstressing the Act

• Extent and Commencement • The extent clause will also be given in the 1st section of the Act •

It deals with the territorial extent of the operation of the Act

• The usual form is. "It extends to the whole of India“ or it may extend to the whole of India except the State of …………… • Commencement Clause • Usually commencement Clause runs as follows • The Act shall come into force at once • The Act shall come into force on such date as Central government by notification in the official gazette will appoint • Sometimes may be partial • In some cases it may be specifically provided that the Act is to come into force on a later date or on different dates in different States or with respect to different provisions or retrospectively • Application • Some laws may be extra-territorial in application. Usually a special provision is included making it clear e.g.The Indian Penal Code

• Definition Clause • The section dealing with definitions • The definitions are framed to suit a particular Act • The draftsman may also use a glossary of terms or the words defined in the General Clauses Act • Definition should be neat clear and precise • Should not be framed as to make the word defined difficult to understand • Words which are not used in the Act should not be defined • If intended to vary any definition in General Clauses Act must be done expressly • Words or phrases once defined shall retain the same meaning throughout the Act • Usually contains the expression “means” and “includes” Expression ‘means’ is explanatory while ‘includes’ is extensive • Words ‘and ‘ or ‘or’ should not be used differently • If intention is to separate things ‘or’ is used

• The Substantive provisions : • This provision sets out the basic objectives and the "main principle" of the Act • The main objects, purposes, principles, the leading motives etc. will be stated in clear terms • This should be followed by the administrative or "machinery" part which generally includes the authorities administering the law • Provisions regarding the "sanctions" for the enforcement of law shall also be included. • Penal provisions • Penal provisions must be clearly expressed • Court should be given power to inflict suitable punishment • If Infliction of penalty is not to exclude civil liability should be provided expressly

• Miscellaneous provisions • Protections of action taken in good faith by authorities, exemptions from the operation of the Act and power to delegate functions or to make rules will form the major part of this • The proviso • Whenever necessary can be inserted below a section, subsection, clause or sub-clause as the case may require. • The proviso should always be printed separately from the main part of the section • The main functions of the proviso are as follows :• To create an exception in respect of certain matters which would otherwise come within the section • To quality or restrict the operation of the main part of the section • To exclude some possible mis-interpretation of the section. A pro vise should never be used to extend the scope of the section. • Repeals • Temporary or transitional provisions relating to repeal or amendment or other laws will generally come at the end • When whole of the section or subsection is to be repealed usual form is ………………… of the principal Act is hereby repealed • When certain words are deleted and other words are to be substituted the form is In Sec …………. of the Act for the words …………. The words…………………. shall be substituted • Schedule • In some enactments there will be the necessity to add a schedule • Sometimes there may be more than one schedule, eg. Constitution of india, the Indian Companies Act, • Saving Clause • Object is to preserve what is already existing and not to create new rights and obligations • Included to establish beyond doubt that provisions of new statute is in addition to the existing law • Form- “Nothing in this Act shall effect or derogate from……………………..

FLAWS IN DRAFTING • Legislative drafting should be free from flaws. • The common flaws which might arise in drafting may be summarised as follows: 1. Ambiguity : • Ambiguity may arise due to faulty structure of the provisions. • It can be avoided by rearrangement of words • Obscure and legally meaningless words are to be avoided. 2. Redundancy : • Repetitions may occur either in the case of provisions or of words • If the same provision is repeated with a difference it may lead to inconsistency • So also pair of words having the same effect, like, 'each and every', 'authorise and empower', etc., are to be avoided 3. Obscurity: • This may be due to the use of unnecessary words or by not using the appropriate words in the appropriate place. • Sometimes obscurity may result by reason of too few words.

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Sir William Dale summarise the reasons for obscurity thus: a) Long, involved sentence and sections. b) Much detail, title principle. c) Indirect approach to the subject matter. d) Subtraction, as in, 'subject to 'provided that'". e) Poor arrangement. f) Schedules - too many and too long. g) Cross references to other Acts

4. Vagueness • Vagueness of provisions, particularly in penal statutes may make it difficult to fix the guilt on any person due to the vagueness of the provision. 5. Unenforceability • Due to the presence of some lacuna or due to lack of any provision for the sanctions to be applied for violation, a law may not be capable of enforceability.

Various Classes of legislations 1. Temporary and Perpetual • In the case of temporary enactments the duration will be limited but in the other it will not be so limited •

Until repealed the latter will be in force

2. Prospective and Retrospective • Normally a statute will be for the future, i.e., prospective, when it creates new obligations rights, or imposes new disabilities and duties or takes away rights already vested • The legislation is retrospective when such limitations or rights are given effect from a period prior to the enactment. 3. Directory and Mandatory • A directory statute is of a recommendatory nature • Mandatory or imperative statute or provision in a statute is of an obligatory character and the non- fulfilment may result in penalty 4. Remedial statutes They confer new favour or remedy of a beneficial character 5. Enabling and Disabling statutes • Enabling law enlarges the existing common law • A disabling statute restricts the rights existing under common law

6. Declaratory statute It is an Act passed to remove some existing doubts or to correct an interpretation which is erroneous according to the legislature. 7. Penal statute • It imposes a new disability or punishment for violation of its provisions where in offences may be defined 8. Codifying and consolidating Acts • When the entire law on a subject is reduced to a single statute, it is codification • A consolidating statute consolidate in one Act the provisions contained in a number of statutes as interpreted and applied by judicial decisions 9. Repealing and Amending Acts • One statute which terminates another expressly or by necessary implication is a Repealing Act • Amending Act is for the purpose of making an addition or alteration to the original Act. 10. Validating Act • It is an Act to validate a statute which would otherwise be invalid or which may have been declared invalid by a competent Court

Kinds of subordinate legislation The chief kinds of subordinate legislation are as follows: 1. Executive: • The Parliament may delegate certain essential legislative functions to the executive. • Statutes (parent legislations) themselves provide for the more detailed Regulations to be passed by the executive as supplementary provisions 2. Judicial : • Superior Courts make Rules for their own procedure this is different from indirect legislations made by precedent 3. Municipal: • Municipal authorities are entr...