THE
MODERN L A W REVIEW
Volume 27
January 1964
No. 1
LEGISLATIVE DRAFTING : AN
INDIAN VIEW’
1. Legislative drafting is a difficult art. It is the art of expressing
in concise and clear language the ideas of other people. It is
difficult enough to express one’s own ideas. It is much more
difficult to express other people’s ideas. The difficulty is all
the greater when there is a doubt about the person whose
ideas one is required to express. Whose ideas does a legislative
enactment express ? Controversy, if not confusion, commences
with this question. Are they the ideas of the Minister-in-charge
of a particular Bill or the officer of the Ministry who instructs
the draftsman or the collection of heterogeneous people constituting the legislature ? Purists would at once point to the legislature.
In legal theory, a statute always expresses the intention of the
legislature. But like all theories this one is far removed from
facts. This becomes crystal clear if we understand the mechanism
of modern law making. How is a Bill prepared? A legislative
proposal is first conceived in the Secretariat. Sometimes the
idea of the proposal emanates from the Minister himself. The
proposal is examined in the administrative Ministry but it is
very rarely that, as required by the rules, a detailed memorandum
of the proposal is prepared. Generally, the officer in the administrative Ministry concerned with the legislative proposal rushes to
the draftsman and asks him to produce a Bill. The draftsman
insists upon precise instructions. But there is no time for such
petty details. Oral discussions follow. The draftsman produces
some kind of Bill, hoping that he has correctly understood the
instructions given to him. His instructors harbour the same hope.
The Bill is then rushed through the legislature for want of time.
1
This article was originally published in the Indian Supreme Court Law
Journal in October 1962. Although it IS not the policy of this Review to
reprint articles, an exception was made in this case to bring this article to a
wider audience outside India. See also Sir N o d Hutton, ” Mechanics of Law
Reform ” (1961) 24 M.L.R. 18.
1
VPL. 27
1
2
THE MODERN LAW REVIEW
VOL.
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Sometimes it emerges from the legislature in practically the same
form in which it was introduced. The rule that a law expresses
the intention of the legislature applied in the good old leisurely
days when laws were few and the legislators had the time to
scrutinise the laws carefully before passing them. In these days,
laws are not made. They are being manufactured. How can a
machine have any volition ? If the administrator has any problem,
the obvious solution which occurs to him is, <‘ Why not have a law
about i t ? ” In his Decline and Fall of the Roman Empire,
Gibbon has described the attitude of the Locrians to the legal
system. If a member of that community proposed an amendment
in the existing law, he had to stand forth in the Assembly with
a noose round his neck. “ If the law was rejected,” said Gibbon,
“ the innovator was instantly strangled.”
To quote A. L. Goodhart: “ There was, as we must all recognise today, considerable
sense in that procedure.”
2. The draftsman of today is supposed to prepare the maximum
of laws within the minimum of time, to express the intention
of some anonymous, mythical person whose identity is not easily
established and to express that intention in language so clear
that not only a reasonable man understands but a malicious man
cannot misunderstand it. ‘‘ It is essential,” writes Montesquieu,
“ that only such words should be used by the law-giver as are
bound to produce the same notions in the minds of all men.”
Here is a task for a superman. I do not, for a moment, suggest
that draftsmen are infallible persons who never make mistakes.
Draftsmen often make mistakes for which no one but they can be
blamed. What I want to emphasise is that a draftsman performs a difficult task in difficult circumstances and his work should,
therefore, be viewed with sympathy. Courts have often been
severely critical of draftsmen. Says one judge, “ This statute is
so confused that it could not have been more confused, if confusion had expressly been aimed at.” Lord Macmillan said about
one section of the Trade Marks Act that it was, ‘‘ couched in
language of fuliginous obscurity.” Lord Justice Scrutton in a
judgment on the Rent Restrictions Acts regretted that he could
not order the costs of a case before him to be paid by the draftsmen of the Acts and the members of the legislature who passed
them. Yet, occasionally, one comes across a judge who understands the difficulties of a draftsman. There can be no better
defence of a draftsman than the following classic passage from
a judgment of Denning L.J. (as he then was) :
“ The English language is not an instrument of mathematical
precision. Our literature would be much the poorer if it
were. This is where the draftsmen of Acts of Parliament
It would certainly
have often been unfairly criticised.
...
2
Seaford Court Estates, Ltd. v. Asher [1949] 2 All E.R. 156 at p. 164.
JAN. 1964
LEGISLATIVE DRAFTING
3
save the judges trouble if Acts of Parliament were drafted
with divine prescience and perfect clarity. In the absence
of it, when a defect appears a judge cannot simply fold his
hands and blame the draftsman. He must set to work
on the constructive task of finding the intention of Parliament, and he must do this not only from the language of
the statute, but also from a consideration of the social conditions which gave rise t o it, and of the mischief which it was
passed to remedy, and then he must supplement the written
word so as to give ‘ force and life ’ to the intention of the
A judge should ask himself the question:
legislature.
If the makers of the Act had themselves come across this
ruck in the texture of it, how would they have straightened
it o u t ? He must then do as they would have done. A
judge must not alter the material of which it is woven, but he
can and should iron out the creases.”
...
3. A draftsman must have a clear idea of what he is required
to draft. If his ideas are confused, his language cannot be clear.
I n order to clarify his ideas and sometimes of the policy-makers
a drdtsman should discuss the legislative proposal with officers of
th
bistrative Ministry and clear up any points which are
c
A record should always be kept of such discussions.
1 is useful when a draftsman is blamed for something
ie blame lies elsewhere. A draft Bill should never be
nless the draftsman is satisfied that he has complete
he subject-matter of the proposed legislation. This
nes mean wading through old records and delving
ten books but a draftsman should be used to all this
g. It is said of Baron Parke that once when he was
a fainting fit in court, all the known restoratives
led in vain. At last, the story goes, someone who
kiA
a well sent for a musty volume of statutes from the library
and held it under his nose. This well-loved odour revived him
immediately
4. Having mastered the subject, a draftsman should search
for a precedent. Sometimes a draftsman’s familiarity with the
statute law at once suggests a precedent. Quite often, however,
it takes considerable time to find a precedent. The subject
noted index of Indian and English statutes is helpful in finding
a precedent. It may not always be possible to hit upon a parallel
precedent. One has often to rest content with an analogous law.
For example, for procedural provisions, one finds a wealth of
precedents in the Codes of Civil and Criminal Procedure. For
a taxing measure one can always usefully borrow certain provisions of the Income Tax Act. I f a draftsman is lucky to find
a precedent, his task is considerably facilitated. But a precedent
.
3
Certain views of Denning L.J. expressed in this judgment were condemned
by Lord Simonds in Magor and St. Mellons R.D.C. v. Newport C o ~ p .[1952]
A.C. 189 at p. 191.
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THE MODERN LAW REVIEW
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should always be used with discrimination. There is often too
great a temptation to borrow verbatim from a precedent. This
temptation should be resisted because wholesale borrowing without
appreciating the points of difference between the precedent and
the proposed law may prove dangerous and lead t o disastrous
results. Several Indian statutes based upon the corresponding
English laws have given difficulties in interpretation in the light
of different conditions prevailing in India.
5 . Before actually drafting a Bill it is always advisable t o
prepare a rough ‘‘ scheme ” of the Bill. If the Bill is t o be
divided into Chapters, the heading of each Chapter and the subjectmatter of each of the clauses which is t o go into each Chapter
should be noted. At this stage it is not necessary to draft the
clauses. What is necessary is t o note down the subject-matter
of each clause. The proposed marginal heading of a clause will
generally give sufficient indication of the subject-matter of a
clause. Care should be taken that the clauses are in a logical
sequence, and follow the usual pattern of a Bill. The work of a
draftsman is akin t o that of an architect. What I have described
as a rough scheme should form the plan which should be followed
in raising the final structure.
6. A draftsman should use simple language. An American
girl said of the ‘‘ Ten Commandments ” that they confuse your
mind because they tell you what not t o do but do not tell
you what you ought t o do. I wonder what that gracious girl
would have thought of the bewildering mass of modern laws.
It is puerile t o contend that laws should be so drafted that
everyone can understand them. How can a law relating t o
patents be drafted so that everyone understands it! There is
the story of a judge who was hearing a patent case. An authority
was cited to him. The judge inquired, “ is that a book of recognised authority in this branch of the law?” Counsel replied in
the affirmative. ‘(Well,” the judge said, ‘‘ I doubted whether
the passage you read from it could be part of the Law of Patents
because it sounds like common sense.” But laws even on technical subjects like patents could be so drafted that they are intelligible t o those who have some knowledge of the subject. Each
clause of a Bill should contain one idea only. If an idea is
complicated, it should be expressed in a series of sub-clauses.
A sub-clause should not normally contain more than one sentence.
Each clause of the Bill should be drafted on a separate sheet
so that there is ample space for making corrections.
7. A draftsman should bear in mind the maxim laid down
by that great parliamentary counsel Lord Thring that, “ the
same thing should invariably be said in the same words.’’ I n
this connection, reference may be made t o section 12 (2) and
section 16 of the Indian Companies Act, 1918, which use the
JAN. 19641
LEGISLATIVE DRAFTING
5
words ‘(shall not take effect,” “ no such alteration shall have
any operation ” and ‘‘ become absolutely null and void ” which
all mean the same thing. The Elections Act of Canada provides
that :
“ Every person who violates, contravenes or fails to observe
any of the provisions of this section, is guilty of an indictable
offence against this Act, punishable as in this Act provided.”
It is difficult to see any distinction between ‘‘ violates,”
“ contravenes ” or ‘‘ fails to observe.”
8. A draftsman should provide for all contingencies which
are likely to arise. He should have what is called “ divine
prescience.” Failure on the part of a draftsman to foresee
certain contingencies has sometimes led the courts to adopt
strange interpretations. For example, it has been held that
‘‘ cream in bottles ” can be described as “ tinned,” that under
the “ Bastardy Acts ” the expression ‘‘ single woman ” includes
‘‘ a married woman,’y4 that a “ cart or carriage” includes a
“ bicycle. ”J
9. Generally, several drafts are prepared.
All these drafts
should be preserved. They indicate the working of the mind of
the draftsman and are useful when any question arises why a
particular provision has been put in a particular form in the
final draft. No paper, including any paper containing rough
notes, connected with the drafting of a Bill should be destroyed.
Such papers which may appear to be useless at the time of drafting
sometimes prove to be very valuable later on, when a draft Bill
is subjected to close scrutiny in the legislature or elsewhere.
10. When a draft Bill is ready, it should not be given a second
reading immediately. There should be an interval of a few
days between the preparation of the first draft and its revision.
If a draft Bill is revised immediately, the mind of the draftsman
is likely to move in the same groove with the result that he may
not notice any mistake. But if the draft Bill is revised after an
interval of a few days, the draftsman will be able to bring a
fresh mind to bear upon the draft and will thus be in a better
position to detect any mistakes. The necessity of revising a
draft Bill cannot be sufficiently emphasised. As has been said,
‘‘ What appeared to the tired eye in the watches of the night
to be without blemish, may be full of errors and inconsistencies
under the cold light of morning.” Time permitting, a draft Bill
should be given as many readings as possible and it will be found
that with each reading new mistakes are discovered.
11. Wherever possible, a draft Bill prepared by one draftsman
should be examined by another. This is a very healthy practice
which is followed in England; every draft Bill is scrutinised by
4
3
R. v. Pilkington (1853)2 E. & B. 546; Jones v. Davies [1901] 1 E.B. 118.
T a y l o ~v. Goodwin (1879)4 Q.B.D.228.
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"HE MODERN LAW REVIEW
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at least two draftsmen with the result that chances of mistakes
are minimised.
12. If a draft Bill is referred to a Select Committee, the draftsman before attending meetings of the Select Committee should
go through all relevant papers to refresh his mind since a long
interval usually elapses between the preparation of a Bill and
its discussion in a Select Committee. He should not rely upon
his memory. He should study all the opinions given in connection
with the draft Bill and give the draft Bill itself a thorough reading.
His grasp over the draft Bill should be so thorough that he should
be able to explain all the points that may be raised in the Select
Committee. A draftsman should not place himself in the predicament which confronted Browning who, when asked what his
poem " Sordello " meant, replied: '' When I wrote ' Sordello,'
God and I knew what it meant; now only God knows."
13. Particular care should be taken in drafting financial
statutes. Any mistake in such statutes may involve the Government in a loss of considerable revenue. The following illustration
indicates how a mistake in a financial statute can be expensive.
Section 8 6 of the Bengal Court Fees (Amendment) Act, 1922,
substituted article 12 of the principal Act and the substituted
article read as follows:
When the amount or value of
any debt or security specified in
the certificate under section 8 of
the Act exceeds one thousand
rupees, but does not exceed ten
thousand rupees,
and
Two per centum on such amount
or value and three per centum on
the amount or value of any debt
or security to which the certificate
is extended under section 10 of the
Act.
When such amount or value
exceeds ten thousand rupees, but
does not exceed fifty thousand
rupees, for the portion of such
m o u n t or value which is i n excess
of ten thousand rupees.
Three per centum on such amount
or value and four-and-a-half per
centum on the amount or value of
any debt or security to which the
certificate is extended under section
10 of the Act.
The effect here of the second entry is to exclude from liability
the first ten thousand rupees when the amount exceeds ten
thousand rupees.
14. A draftsman must have ample time to prepare a Bill.
He is often hustled. The dangers of hasty drafting are too patent
to need emphasis. There is the classic instance of a law adopted
by one of the States after a serious railway accident at a
junction. It provided that when two trains approach an intersection, each must wait until the other had passed. An American
statute reads: " No one shall carry any dangerous weapon upon
6
Repealed by the Bengal Repealing and Amending Act, 1946 (Bengal Act
XVI of 1946).
JAN. 1964,
LEGISLATIVE DRAFTING
7
the public highway except for the purpose of killing a noxious
animal or a policeman in the execution of his duty.”
Section 26 (3) of the Lands Compensation Act, 1961 (U.K.), is
in the following terms :
“ Subject to subsection (4) of this section, subsections (3)
and (4) of section 25 of this Act shall apply where the
provisions of section 23 of this Act have effect as applied
by subsection (1) of this section as they apply where those
provisions have effect as applied by subsection (1) or subsection (2) of the said section 25.”
Section 12 (6) of the Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920, reads as follows :
“ Where this Act has become applicable to any dwellinghouse, it shall continue to apply thereto, whether or not the
dwelling-house continues to be one to which this Act applies.”
There can be no doubt that all these instances are the result of
hasty drafting. Without being offensive a draftsman should always
insist upon sufficient time being given to him. The importance
of time to a draftsman is well illustrated by the following story:
A friend of a draftsman walked into his office late one
evening and inquired, “ Done any useful work today? ” The
draftsman replied: ‘(Well, to be frank, I inserted a comma before
a particular word this morning, I took it off in the afternoon
and just as you were entering my room I was thinking of putting
it back. That is all the work I have done today.” Macaulay
took ten years to draft the Indian Penal Code. He was a master
of language and had a prodigious memory. He could recite
Paradise Lost backwards. None of the draftsmen of today can
claim his virtues. They certainly need more time.
15. A draftsman is sometimes disturbed during holidays to
draft some urgent piece of legislation. This is, no doubt, extremely
annoying. But a draftsman should take this with good grace
as part of the game. He should be prepared to work at all times
and a t all hours. His devotion to law should be like that of
Chief Baron Palles who is said to have taken Feamze on Contingent
Remainders with him for reading on his honeymoon.
16. Legislative drafting is a thankless task. A draftsman rarely
gets credit for a good draft. He is often blamed for a bad one.
The reason perhaps is that a good draft never comes up before
a court. A draftsman should be thick-skinned. He should always
be u n r d e d . He should never get excited. If his mind is
disturbed he will never be able to do his work properly. When
he is criticised by people who do not know the difficulties of his
job, he can only laugh in his sleeve and derive comfort from
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the thought: c c If only these people were to do my job, what a
mess they would make ! ')
17. Finally, if you have a choice to become a draftsman or
take up any other job, take up the other job.
S . K. HIRANANDANI."
* Barrister-at-Law;
Joint Secretary and Draftsman, Ministry of Law and
Secretary, Law Commission, India.