Chapter Xin . Legislative Drafting The reader. of this Chapter may immediately be reminded of the sarcastic remark of George Bernard Shaw that—he who knows does and that he who does not know teaches. The author himself was so reminded whenever he came {cross the statement that a panicular provision of law was inartistically drafted. He felt whether the critic would really have done any better. For example. in Pulukuri Kotayya v. Emperor’, Sir John Beaumont, delivering the opinion of the Judicial Committee of the Privy Council, said: . Section 27. which is not artistically worded. provides an exception 10 the prohibition imposed 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 enabled 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 to 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 case?. All the same, while reading through the various cases for purposes of understanding the various mules 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 als, if his attention is drawn to 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 bis 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, a: far as possible, precise, and the arrangement of the words should be such that there is no syntactic ambiguity. 1. AIR 1947 PC 67: (1947) LR 741A 65, 76. AA 2, AIR 1960 SC 1125: (1961) 1 SCR 14 2. { 702) . eee: Legislative Drafting 703 In India there is a special difficulty because the language used is the English language. Even if one of the various Indian languages were used the problem would continue, because. no language is known to all the Indian people, with the result that shades of meaning are not always clear. Words derive colour from their context and many words in daily use have, as Wittgenstein puts it, “blurred edges’. The central meaning of a word would perhaps be fairly clear but fringe meanings are not always obvious. Itis, therefore, necessary that the draftsman should use, as far as possible, one word only for a particular meaning which he has in mind. For doing this he should frequently consult dictionaries and anthologies of synonyms. Even so, it will not always be possible to choose the right word, and judges, when interpreting a siatute, will have to take into account various considerations. For example, it is very difficult to draw the line. between drunk and sober. between thick and thin, between long and short, reasonable and unreasonable, few and many, rich and poor, etc. Another requirement is_that the draftsman should avoid words which may have emotional overtones. The Preambie to the Indian Constitution is highly sonorous, inspiring. evocative and so fully charged with emotion, that the result is, in trying'to use it for the interpretation of various Articles of the Constitution, learned Judges have not been able to 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 the draftsman remembers his objective he would be able to avoid many pitfalls. Sir Emest Gowers’ advice is, “The whole of our modem 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-Jones, “Tt 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, legislative in character. The substantial issue is whether the inevitable judicial legislation is to 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, exercises not original legislative power but delegated power, comparable to that conferred upon administrative officers possessed of rule-making or subordinate legislative authority. Each has the duty of implementing the general policy of an enactment with detailed rules applying that policy to the infinite variety of unforeseeable particular situations 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 ingenujty and perspicuity 245704 Interpretation of Statutes [Chap. in its interpretation. Suppose a restriction is imposed on a fundamental right. Prof Alan Gledhill remarked in 1964 in his “Republic of India’: “The: Directive Principles set out a number of objectives to guide legislative and executive policy. They are not enforceable in a court but a study of the legislation of the Indian Legislatures since Independence will reveal that Indian Ministers have discharged their constitutional duty to apply the principles when sponsoring legislation. The principles are not without importance in courts; some Fundamental Rights may be restricted in the public interest; if the object of a restriction is to attain any objective included in the Directive Principles, no one can be heard to say that it is not in the public interest.” But the point is, while the courts will not hear an argument that a particular restriction is not in the public interest, courts will have to determine whether the restriction is ‘reasonable’ and if it is not reasonable, what would-be-reasonable. In the author's opinion courts should bave played a more activist role and not merely acted as a brake on legislative impulse. This they could do, because, counsel will place before them all the relevant material. After all, we have adopted Democratic Socialism, to be attained by Fabian methods and not by what Herbert Spencer calls the ‘New Toryism’. There are many words which have different meanings depending upon the context. The draftsman will have to be 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 Protestant, and she was told that the Catholic gentleman was ‘Father so and so", she turned to the other and asked him if he was also a father, to which the Protestant gentieman replied, “No, Tam 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 perception of the objective to be achieved, and the capacity to express in clear and precise Janguage how the legislature intends'to achieve the object, are absolutely essential in a draftsman. It was Stendhal’s position that there is only one example of perfect style and that is the Code Napoleon. It was said that Stendhal would read that Code once every year in order to make his style more precise. Before the technical details are discussed there are some aspects which are more concemed with the mechanical aspects of drafting: (GQ) The draftsman should have a separate page for each section and *he should leave a sufficiently wide margin for any notes or corrections as they occur. Such a method would also facilitate casy 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.xu Legislative Drafting 705 (2) The draftsman must have at least one good dictionary, and explaining the usage of words. Chambers’ and the Concise Oxford Dishon ne, are ideal for these purposes. It is also necessary to have Roget's Thesaurus? for choosing the next appropriate synonym or even for arriving at the precise word in the first place. 4 (3) Ifa team of drafismen is working on a long and complex measure, apart from consultations between them, there should be someone to supervise and co- ordinate their work for the production of a consistent and integral whole. __ Drafting the text ofa statute or a Constitution is not just an art but is a skill. Tris not disputed that a good legislation is that the text of which is plain, simple, unambiguous, precise and there is no repetition of words or usage of superfluous language. The skill of a draftsman in the context of drafting a statute or the Constitution lies in brevity and employment of appropriate phraseology wherein superfluous words or repetitive words are avoided. It appears that the aforesaid principle was Kept in mind while drafting the Government of India Act, 1915; the Government of India Act, 1919 and the Government of India Act, 1935. The draftsman of the Constitution of India has taken 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 as its meaning, weight should undoubtedly be given to punctuation. Punctuation, therefore, certainly has its uses but the general tendency of cours 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 punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text. The Stop.—The most important punctuation mark is the period or full stop. It has to be placed at the end of a complete sentence which is neither exclamatory nor interrogatory. Of course, in legislative drafting exclamatory or interrogative sentences will not occur. An incomplete sentence should however end with a dash. It should be noticed carefully whether the final stop should be inside or outside the quotes. One can tell easily by the sense. 3, ‘Rogets’ International Thesaurus’, 31d Edn., Oxford and IBD Publishing Co. Pvt, Ltd., 66 Janpath, New Delhi 110 001. This is the only crve Roget’s Thesaurus which preserves Peter Roget's Original Methodology and Sclieme. All other versions and editions carrying Roget's ‘aime merely purport to be the real thing. 4, Election Commission, In re, Special Ref. No. 1 of 2002, (2002) 8 SCC 237. 5. Aswini Kumar Ghose v. Arabinda,2dse, AIR 1952 SC 369. i247706 . Interpretation of Statutes (Chap. The comma is @ matter of sense and experience. The only Tule is that if it makes the meaning clearer put in a comma: if not, Jeave it out. A comma is used to mark off a phrase or a clause when it is thought that it makes the sense clearer to do So. It is also used to mark a series of words, phrases, or clauses. Another use of the comma is when a word is placed out of its natura) order for the sake of stress. This use is however unlikely to occur in legislative drafting. How far a clause which follows upon a comma governs every clause that precedes the comma is a matter not free from doubt.$ The semicolon is an important and interesting mark’ to use. It is stronger than a comma, which is used more for a pause; but the semicolon does not imply a complete break like the full stop. It only makes a partial break and is at the same time a link between sentences appearing on the same subject. It often implies that what follows at east partially explains and amplifies the sentence that comes before it. It is often used instead of a comma when it is followed by ‘and’ or ‘or’ or ‘but’. Colon.—It implies that what follows explains and amplifies-the_sentence— that comes before it. It is generally used before a quotation, or to take the place of some word such as ‘namely’. STYLE The persons who are likely to be affected when a new law is made fall into three different categories: (1) The persons who make the law; (2) Those members of the State whose rights and liberties are likely to be affected by the law; and (3) The judiciary. The purpose of legislation is to establish Jegal rules and to make them known to those who are likely to be affected by those rules. Therefore, the first condition is simplicity. While precision is essential, as it was indicated in the opening chapter of this book, too much adherence to precision may lead to unnecessary complexity and, therefore, to obscurity. In Jane Austen’s novel ‘Northanger Abbey’, the heroine Catherine Moreland says, ‘I cannot speak well enough to be unintelligible.” To achieve simplicity there must be economy in the use of words, directness towards the thought, a familiarity of the language used, and some kind of order. Brevity is, of course, the soul of wit, but economy should never be carried to such an extent as to sacrifice clarity. Horace said: *‘I labour to be brief and become obscure.’’ The famous French poet Boileau advises: Polissez le sans cesse, et le repolissez: Ajoutez quelquefois, et souvent effacez. 6. State of W.B. v. Swapan Kumar Guha, (1982) } SCC 56}: 1982 SCC (Cri) 283. 1248xm Legislative Drafiirig 07 (Polish it without ceasing and polish it again; add occasionally, and often rub out.) ly. and more, In order to be simple one has to be straightforw kind must be avoided. Therefore, itis necessary and over again and scrutinized to see if there are It is obviously necessary that familiar word: the drafisman’s idea instead of the unfamiliar, with him not only an ordinary dictionary but which he can choose more familiar words and a As far as order is concemed the draftsman should maintain some kind of Jogical relationship between one part of the draft and the other, There choutd obviously be seme order in the chapters and within each chapter ‘ard. Circumlocution of every that a draft should be read over any roundabout expressions. Is should be used for conveying Hence a draftsman should have a dictionary of synonyms from void obscure ones. Precision and brevity are generally the hallmarks of legislative draftsmanship.? To be precise a draftsman must be clear in his mind as to what exactly he Wants to say and he must also have a capacity to say exactly what he means, Napoleon is supposed to have said, “Be clear and the rest will follow.” This certainly is true 10 a great extent. If one is clear in one’s mind as to what exactly one wants, one will generally find the necessary words to clothe one’s ideas, But, Dr Samuel Johnson, in one of his Essays, points out: “It is asserted by Horace, that ‘if matter be once got together, words will 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 matters 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 Janvary, 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 intemational matters, cornmonly accepted symbols should be used. In such a matter misguided chauvinism has no place. As regards reference to legislation a ae meee cere ae 7. Maktoal Singh v. State of Punjab, (1999) 3 SCC 32): 1999 SCC (Cri) 417. 1249 :708 Interpretation of Statutes (Chap. the commonly accepted practice is to use figures and not words: for example, ‘Section 19° or. ‘sub-section (3)' instead of “Section nineteen’ ‘or sub-section three’. Also a reference to sub-paragraph (ii) of paragraph (@) of sub-section (2) Of Section 15 is better referred 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 a provision of some other legislation, then the reference should include a reference to the short title of that enactment and an appropriate marginal reference should also be made. When we are dealing with spelling, it is best to use the spelling in a 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 maintained whenever that word is used. With respect to capitls the rule is—when in doubt do not use a capital. Moreover, as in the case of spelling, in the use of capitals also, there should be consistency. Another general rule is that words which are used in a generaH——~ 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’, ‘above-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 drafisman could not do better than to avoid them and making a more specific reference. The same observations 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 lawful for’ or ‘shall not be lawful for’, it is better to use the simpler word ‘may’. A constant reference to ‘the 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 Jaw’ it is sufficient to. say ‘notwithstanding any other law’. 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”, “more 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-commencement of the Act or thereafier), “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 . 1250XIN) Legislative Drafting 709 of the irreconcilable decisions on the Ejuscdem Generi unius rule, i is best {0 state the class first and then enw: to be excepted. is mule and the expressio imerate the items intended As regards tense. the normal rule is to use the present tense for the operation Of the law and indicate by appropriate words conditions precedent in the past tense and applicability. of the Act to past and future events by using the phrase “before or after the Act”. Since the “‘masculine"” embraces the “feminine’? and “‘singular’” includes “plural” it is in order to use the masculine singular form. If exceptions are intended they should be indicated. ___ Inevery drafting process 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-clearin 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 Governor 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 should be taken to see if inter-State 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, he must 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 committed 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 251 ‘ acest710 Interpretation of States [Chap. carly kept in mind by the draftsman. No statute should violate Public International Law or go against the comity of nations. It should not confhet with existing aw unless such conflict is intended, in which case, it should be expressly stated. ‘Territorial competence is another matter which the draftsman should remember. The law should not give too much power to the officers of the Government; that is, bureaucratic autocracy should, as far as possible, be avoided, At the same time, any proposals which may affect the interests of Government departments or public bodies should be kept within strict limits. ‘Therefore, the draftsman should ascertain the authorities on whom power is intended to be conferred, their inter se relationship and the extent of the power. Equally, he should determine who the persons are on whom duties, liabilities and obligations arc to be imposed, who has the corresponding rights and how these rights and obligations are to be enforced. If a repeal is intended it is better to say so instead of Jeaving it to implication. Above all, practicability or workability is a matter which is very often forgotten by the draftsman in his anxiety to produce a statute which would satisfy his Minister's zeal. The third stage relates to design. Here the question to be considered is whether legislation is in fact necessary or whether, under the existing law, by means of administrative instructions the same results can be achieved. Two factors must be considered: (a) the position of the new statute in relation to various connected statutes. If the legislation is not of an amending character a short precis of the basic objectives to be achieved and the means by which those objectives are to be achieved should be made. Then cach topic must be taken up and developed. It is better to make a marginal note at this stage to describe each proposed clause. Care should be taken to see that distinct and totally different matters should not be included in one and the, same Act. The connection should not be tenuous. Sir Cecil Carr? gives an instance of ‘the head of an Oxford College, in far-off days when such appointments were subject to the condition of celibacy, who astonished the fellows of his Society, by announcing his marriage and confronting them with a clause in a local Canal Act which gave him statutory sanction’. There is also another story: ‘More than a hundred years ago, when divorce in the modern sense was possible only by Act of Parliament, an unhappily married Town Clerk was promoting a Waterworks Bill for his town; and in clause 64, mingled with something technical about filter beds and stopcocks, appeared the innocent little phrase ‘and the Town Clerk's marriage is hereby dissolved’. Nobody could explain how these words got there, and, in fact, nobody ever noticed them while the Bill was going through Parliament, for everyone was fast asleep long before they got to that clause. In due course the Royal Assent was given, and the Town Clerk lived happily ever after.” making it retrospective should be ¢! In the case of amending legislation there are three types: (a) the amending law may amend by deleting some section or sections, or deleting and substituting new materials; (b) the new law may completely repeal the old one; 8. (1950) 66 LQR 216. 1252 ,xi Legislative Drafting m1 and (c) it might impliedly be connected with th. is a separate enactment. It would be advisabl clarify all judicial interpretations of the portions to be amended, preferabl: chronological order, and make adequate provision for the errors and omiceronn pointed out. The drafisman should consider which category the particular legislation he is drafting falls into and should draft suitably. 5 The fourth stage may be described as the compositi nl “ osition sta; ‘hich is described by Sir James Stephen in the following words Seca 1 earlier law though apparently it le for the draftsman to collect and “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 1 was under the same sort of obligation to him as one is toa dentist. it is not very pleasant when you hear about it.”” Sir Alison Russel also states to the same effectthat~“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 hurry in producing the legislation the draftsman would do well to put aside his draft for some time arid 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 definitely 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 arid 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 model. He will thus produce a better draft. In using referential legislation one technique is the direct amendment of a principal statute by another statute. The second method involves the adoption or incorporation in a statute of provisions of an‘existing statute. This is done not by re-enacting those provisions in the new statute but by merely referring to them. 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 draftsman. The last stage consists of a very careful scrutiny. Here it must be remembered that criticism of a section read and seen countless times becomes hard. Drafting is a field in which ‘familiarity 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 t0 correct obvious mistakes. It is true that a court can correct such mistakes, as for example mistakes in a schedule, but it is well to remember that the court's power is only to correct obvious slips of draftsmanship. 125872 Interpretation of Statutes [Chap. The statute should obviously be arranged 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. After the first draft is drawn up, the next stage is to draw up the scheme, consisting of: (a) the long title, (6) the preamble, (c) the enacting formula, (d) the short title, (e) the extent and application, (f) definitions, (g) the main provisions, (J:) provisions relating to administrative machinery, if any, (i) penal provisions, if any, (j) mle-and- regulation-making power, (k) any temporary provisions, (/) repeal and saving clauses, and (m) schedules, if any. Such an arrangement would help in the clarity of presentation and it makes reference easy. Under this head we will have, to consider the various parts such as headings, illustrations, marginal notes, and arrangement of sections. The real danger in al] these matters is that the language of the heading may be utilised and- construed in such a way as to enlargé or restrict the actual scope of the language used in the enacting provision. But as it was mentioned in the first 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 to permanent 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 can sometimes 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 ofa competent draftsman, ‘could hardly fail to be an instrament 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 trying to state objectives of the Act ina concise and compressed form. Thereafter comes the enacting formula which, in India, is “'Be it enacted by Parliament (—Legislature) in the ... year of the Republic of Ipdia as follows: Next comes the 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 the apostrophe in the short title should be carefully watched—for example “Advocates Act’ is correct. ‘Advocate’s Act’ is incorrect, because the Act is concemed with Advocates and it is not possessed by Advocates in the sense which would justify the use of apostrophe. i254xun Legislative Drafting 3 The statute could then deal with the date of commencement of th enactment oF of any provision of the enactment. Sometimes some provisions of a statute are to come into force at a future date, by a Notification in the Official Gazette. If that is so. it should be made clear in the clause of the Bill dealin with commencement. q The next stage is the territorial application’ of the Act. As regards the area, there is obviously no difficulty because the statute can only operate in the area over which the legislature has jurisdiction; but in the application of the Act to Persons outside, as in the realm of taxation, statutes may operate extraterritorially. The competence to pass such a legislation must, therefore, be carefully examined by the draftsman. __ In dealing with definitions the word to be defined must be identified by inverted commas. A definition may, (a) narrow the comimon—meaning, (b)— extend its ordinary 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 meaning is expressed completely and nothing is omitted. If the word ‘includes’ is used it means 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 Gujarat", 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 drafisman 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 meanings should also be avoided. The legislature should be reasonably consistent. Words defined in the General Clauses Act, 1897 should be given the same meaning and should not be defined in the particular enactment. Tf 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 should oo ss Satie ca Se 9. See also Municipal Corpn. of Dethi v. Tek Chand Bhatia, (1980) 1 SCC 158, 10. (1976) 4 SCC 601. 4 25574 Inerpretation of Statutes {Chap. never include any substantive matter, (b) a word that is not used in an enactment should not be defined, (c) a definition should not include fantastic meanings, and (d) though it is generally done, it is not necessary to state that a definition of a word is to apply also to its grammiatical variations and cognate expressions. Similarly, the words ‘unless the context otherwise requires’ may aiso be omitted though it is safer to use them. In Meux v. Jacobs'!, it was held that such words are always implied. In legislative drafting parlance the distinct and numbered divisions of an Act are referred to as sections and the sub-divisions of a section which are numbered in round brackets are referred to as sub-sections, and each section as also a part of a section of an Act is considered a separate enactment. The word ‘enactment’ does not mean the same thing as ‘Act’. *Act’ means the whole Act, whereas a section or part of a section may be an enactment. But while referring to a provision and numbered sub-division of the provision of an Ordinance the words ‘clause’ and sub-clause’ are generally used. In view of Section 30 read with Section 3(54) of the General Clauses Act, 1897 as also the corresponding Section 30 read with Section 4(40) and (43) of the U.P. General Clauses Act, it would not be wrong phraseology, though it may sound inelegant, to refer to a provision of an Ordinance as ‘section’ and to a sub-division of such a provision, numbered in round brackets, as ‘sub-section’.!? The only other matters to which the draftsman should pay attention are the following: (1) In many modem statutes, there is provision for the constitution of administrative tribunals. It is always necessary that the Chairman of the Tribunal should be a lawyer, though this is not so in practice. The procedure of the tribunal should be such that rules of natural justice are not violated. (2) There are many statutes dealing with statutory corporations. The powers of such corporations must be very carefully and clearly set out, because, being creatures of statutes, they can only exercise those powers which are given to them by the statutes. : (3) Every statute provides for the making of rales by the Government. There must be provision for placing these rules before the legislature and provision Should also be made that the rules should be subject to any resolution that may be passed by the legislature. This way, legislative control over the rules would be effectively established. Further, the rule-making power should also be carefully defined because there should not be any excessive delegation, (4) In the case of statutes relating to taxation the charging sections should be worded very carefully from the point of view of the assessee as well as the Revenue. a (5) One of the main points of confusion which arises in the interpretation of statutes is whether a particular provision is mandatory or directory. Very oftén a provision couched in mandatory language is interpreted by courts as directory 11, (1875) LR7 HL 481. 5 12. Prabodh Verma v. State of U.P., (1984) 4 SCC 251: 1984 SCC (L&S) 104. N (256AT 2502 Legislative Drafting "nS and equally the other way. The draftsman should take care to see that if the Provision is intended to be mandatory there should d jot be any doubt or ambiguity left. It is better to have a definition that ‘shall’ Signifies that the same phrase in the first proviso to Article 124(2) to be mandatory. Further, in the same case, it was held that the words ‘after consultation with the Chief Justice of India’ in Article 222(1), were mandatory; that is, the President must consult the Chief Justice. . : 6) In some cases offences are created even without mens rea and vicarious ( liability is fastened upon the master for the illegal acts of his servant. Such_