ChapterXII1

Legislative Drafting
The reader of this Chapter may imncdiately be remindcd of
the
remark of George Bernard Shaw that-he who knovs does and that sarcastic he who
docs not know teaches. The author himsclf was so remindecd
whenever carne
he
across the statemcnt hat a particular provision of law was
He felt whether the critic would rcally have done any inatistically drafted.
better. For example, in
Pul1kuri Kotavva v. Empcror, Sir John
the Judicial Commitee of the Pivy Council.Beaumont,
said:
delivering the opinion of
"Scction 27. which is not artistically wordcd. provides an
ilhe prohibition imposcd by ilhe preceling exception 1o
section, and enablcs certain
statements made by a person in police custody to bc proved."
Actually, the author alvays thought that the section was very well
bySir James Stcphen, and it was judicial drafted
interpretation
only an cxception to the preceding Section 26', but also tothat made Section 27 not
enabled the police to use their 'persuasive powers to Section 25 and
accused in their custody Jeading to the discovery of extract statements from
Stephen, having categorically excluded from the certain field
facts. Sir James
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
confessions topersons other than the police, by using the26,words which deals with
'in the custody
of a police officer'. Police custody is a
Sir John Beaumont himself says so, but requirement only in Sections 26 and 27.
then prOceeds as if such statements
could be made to the police. It is respectfully
must be reconsidered. Its approval by the Supreme submitted that this interpretation
web in Deoman Court has led to the tangled
Upadhayaya case?.
All the same, while reading through the
various cases for purposes of
understanding the various rules of interpretation the
difficulty that a court vas faced with, while trying toauthor
gather
felt that much of the
the intention of the
legislature, could have been avoided if certain basic rules were
draftsman and also, if his attention is drawn to the followed by the
using various expressions and words. The author has difficulties in choosing and
better men have feared to tread. therefore rushed in where
Language is not merely a means of
medium of talk. Words are the tools withcommunication
which
but it is also the chief
person speaks to another, however ambiguous the language operates. When a
makes his meaning clear by the language of words chosen may be, he
modulation of his voice and change in intonation. But gesture as well as by the
and they are read, these other aids are not when words are printed,
must be, as far as possible, precise, and the available, and hence, the words used
such that there is no syntactic arrangement of the words should be
ambiguity.
I. AJR 1947 PC 67: (1947) LR 74 IA 65, 76.
156
2. AJR 1960 SC125: (J961) 1 SCR
14.

[702 )
 Legislaiive Draftine 703

In India there is a spec:al ditioltv because the languaye used is thc English
inguage. Eve if one of the vanous Ind1an languages were used the probBem
wWOuld Continue, because. no lnguagC Is knoWD to all the Indian people, vith
the iesult that shades of meaning are not always clear. Words derive colour from
heir coniext and many wOrds in daly Usc have. as \Wittgenstein puts i, blurrcd
cdges'. The central meaing of aword would perbaps be fairly clear but fringe
meanings are not always obvious. It is. therefore. necessary that the draftsman
should usc, as far as possible. onc word only for a particular mcaning 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 vOrd, and judges, when interprcting a statute, will have to take into
account various considerations. For example. it is very difficult to draw the line
between drunk and soher, between thick and thin, between long and short,
reasonable and unreasonable. few and many, rich and poor, etc.
Another requircment is that the draftsman should avoid words which may
have emotional overtones. The Preamble to the Indian Constitution is highly
sonorous, inspiring. evocative and so fully charged with emotion, that the result
Is, in trying to use it for the interpretation of various Aricles of the Constitution.
Jeamed Judges have not been able to see with the same eye.,The learned advise,
quoting Montesqicu, that 'it is essential that only such words should be used by
the law-giver as are bound to producc the same notion in the minds of all men
but this would be a task for a superman. Even so, if the draftsman remembers
hisobjective he would be able to avoid many pitfalls. Sir Ernest Gowers' advice
JS,

"The whole of our modern drafting technique seems to be based upon

the obviously fallacious assumption that it is possible. to cover every
particular eventuality. Is it not time we gave up trying to do the impossible
and concentrate instead in laying down broad general principles?""
According to Prof Harry W.Jones,
"It must be kept in mind that so called interpretation, on issues which
1were wholly beyond the foresight of the draftsmen of a statute, is, itself,
Jegislative in character. The substantial issue is whether the inevitable
judicial legislation is 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
ihe 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,
retroacive, 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 onc such word which requires judicial ingenuity and perspicuity
157
 704
Interpriation of Sautes |Chap.
in its interpretation. Suppose a resiicion is imposed on a
Prof Aan Gledhill remarked in 1964 in his Re;ubic of fundamental right.
India':
The Dircctiv Principles set out a
legislativc and exccutive poicy. They are number
no:
of objectives to guide
study of the legislation of the Indian cnforceable in a court but a
Legislatures
reveal that Indian Ministers have discharged theirsince Independcnce will
apply the principles whcn sponsoring constitutional duty to
legislation. The
without importance in courts; some Fundamental Rights principles are not
in the public interest; if the object of a may be restricted
restriction is to attain any objective
included in the Directive Principles, no one can be heard to say that it
in the public interest. " is not
But the point is, whilè the courts will not hear
an
restriction is not in the public interest, courts will have argument that aparticular
to determine whether the
restriction is 'reasonable' and if it is not reasonable, what wOuld be
In the author's opinion courts should have played a reasonable.
more activist role and not
merely acted as a brake on legislative impulse. This they could do,
counsel will place before them all the relevant material.» After because,
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
context. The draftsman will have to be careful to avoid such words and must the
choose asynonym 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, aCatholic and a Protestant, and she was told
that the Catholic gentleman was 'Father so andso', she turned to the other and
asked him if he was also a father, to which the Protestant gentleman replied,
No, Iam a married man and have four children."
Therefore, acommand 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
language 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 saidthat 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 concerned with the mechanical aspects of drafing:
(1) 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, aloose sheet wilI be more helpful than turning over pages to find out
the scope of an carlier section. Moreover, the arrangement of the sections can be
changed if necessary.
158
 Legislatie Drafting 705
(2) The draftsman must havc at
least one
Cxplaining the usage of words. ChambeIs' and thegood dicionary, and another
Concise
are idcal for these purposCS. It is also Oxford Dictionaries
necessary to have Rogct's Thesaurus for
choosing the nextapproprate synonyM or even for
in the first place. arriving at the precise word
(3) If a team of draftsmen is
from consultations betwcen them,vorking On a long and complcX measurc,
thcre should be someone to supervise andapari
ordinate their vork for the production of aconsistent and co
integral whole.
Drafting the text of a statute or a
It is not disputed that ago0d legislationConstitution
is not just an art but is a skill.
is that the text of which is plain, simple,
unambigiguous, precisc and here is no repetition of words or
superfluous language. The skill of a draftsman in the context of drafting usage of
statute or the Constitution lies in brevity and a
phraseology wherein superfluous words or repetitive employment of appropriate
words are avoided. It
appears that he 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 courts is not to allow it to control the plain
meaning of a text. This is because the draftsman very often does not use
punctuation marks properly. It is, therefore, essential that some knowledge of
the use of punctuation be necessary.
It need not be denied that punctuation may have its uses in some cases, but
it cannot certainly be regarded as a controlling element andcannot be allowed to
control the plain meaning of a text.5
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
cnd with a dash. It should be noticed carefully whether the final stop should be
inside or outside the quotes. One can telleasily bythe sense.

3. 'Rogets' International Thesaurus', 3rd Edn., Oxford ard lBD Publishing Co. Pvt. Ltd., 66
Janpath, New Delhi I10 001. This is the only true Ro ' s Thesaurus which preserves Peter
Roget's Original Methodology and Schene. lot' /ersions and editions carrying Roget's
name merely purport lo be lhe real thing.
4. ElectionCommission, In re, Special Ref. No. I of 2002, (2002) 8SCC 237.
5. Aswini Kumar Ghose v, Arabinda, 0Se,AIR 1952 SC 369.
159
 706
Interprctation of Statutes {Chap.
7he co111121a iS 1 natier of sCnSe and
experience. The only rule is that if it
makes the meaning clerer put in aCODMa; if not, leave it out. A
to mark off a phasc or a clause vhen it is comma is used
(o do so. l is also uscd io mark a series of thought that it makes the sense clearer
use of the conna is when a Word is placed out ofwords, plhrases, or clauses. Another
of stress. This use is however its natural order for the sake
unlikely t0 OcCUr in legislative drafting.
How far a clause whic: follows upon a
coma governs cvery claUSe that
prccedles the cOMMa is a matter not free from doubt.6
The semicolon is an important and
than a comma, which is used morc for interesting mark to use. It is
a pause; but the semicolon stronger
imply a complete break like the full stop. It only does not
the same time a link between makes a partial break and is at
sentences appearing on the same subject. It often
implies that what follows at least
that comes before it. It is often usedpartially explains and amplifies the sentence
'and' or 'or or but'.
instead of a comma when it is followed by
Colon.-It implies that what
that comes before it. It is generally follows
used
explains and amplifies the sentence
of some word such as 'namely'. before a quotation, or to take the place

STYLE
The persons whoare likely to be affected when a
three different categories: new Jaw is made fall into
(1) The persons who make the Jaw:
(2) Those memnbers 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
known to those who are likely to be affected by legal rules and to make them
those rules. Therefore, the first
condition is sirnplicity.[While precision is essential,
opening chapter of this book, too much adherence as it was indicated in the
unnecessary complexity and, therefore, to obscurity. toInprecision may lead to
Jane Austen's novel
'Northanger Abbey', the heroine
enough to be unintelligible.']ToCatherine
achieve
Moreland says, l cannot speak well
the use of words, directness towards the simplicity there must be economy in
used, and some kind of order. thought,a familiarity of the language
Brevity is, of course, the soul of wit, but economy
to such an extent as to sacrifice clarity. should never be carried
become obscure." The famous French poet (Horace said: I labour to be brief and
Boileau advises:
Polissez le sans cesse, et le repolissez:
Ajoutez quelquefois, et souventeffucez.

6. State of W.B. v. Swapan Kuma R (1982) I SCC

561: 1982 SCC (Cri) 283.
 Legislative Drafting 707

(Poish it witheut ceISTDZ d poish it again: add oCcasionally, aind more

oflen rub out)
In order to be simple one has to be straightforward.
kind musi be
Circumlocution ofevery
avoided. Thercforc, it is necessarv that a draft should be read over
and over again and scrutinized to see if there are any roundabout
expressions.
It is obviously nccessary that familiar words should be used for conveying
the draftsman's idea instcad of he unfamiliar. Hence a draftsman should have
with him not only an ordinary dictionary but a dictionary of synonyms from
which he can choose more familiar words and avoid obscure ones.
As far as order is concerned the draftsman should mnaintain some kind of
logical relationship between one part of the draft and the other. There should
obviously be spme order in the chapters and within each chapter.
PRECISION
Precision and brevity are generally the hallmarks of legislative
draftsmanship.?
To be precise a draftsman n1ust 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 to agreat extent\If one is clear in onc's mind as to what exactly
one wants, one will generally find the necessary words to clothe onc's ideas.
CBut, Dr Samuel Johnson, in one of his Essays, points out: "I 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.
Therc are certain miscellaneous matters relating to style about which there
is genera! agrcement. They are references to dates, numbers, legislation,
spelling, capitals, symbols and abbreviations. As regards dates, the best method
of referring to adate is '2nd January, 1979'. With respect to numbers, it is best
to use figures instead of words, and with regard to figures the commonly
accepted Arabic figures should be used. Unfortunately there is a tendency to use
Hindi figures for numbers and this is bound to cause confusion even if all
Indians become familiar with such numbers. When numbers are so important in
international matters, commonly accepted symbols should be used. In such a
matter misguided chauvinism has no place. As regards reference to legislation

7. Maktool Singhv. State of Punjab, (1999) 3SCC 321:4fCC (Cr) 411.

 cxample.
the connonly accepted pracicc is to use figurcs and no: words: forsub-secion
Scction 19 or `sub- sCCiOn (3) instead of Section ninetecn' or
three'. Also a1cfeiencc to0 sub-parapuaph (ii) of paragraph (a) of sub-scction (2)is
of Section 15 is better efered to as "Secion 15(2)(a)(ii)'". Where referencc
words
made to a prOViS0O of thC same statute. it is not necessary to use the
this Act; but whcre refercnce is made to a provision of some other
legislation, then the reference should include a reference to the short title of that
When we
enactmcnt andan apprOPriate marginalrefercce should also be made.
are dealing wih spelling. it is best to use the spelling in astandard dictionary. In
used
any event, what is neeessary is consistency, and if a particular spelling is
word is used.
for a particular word thc same should be maintaincd whecnever that
With respect to capitals the rule is-when in doubt do not use a capital.
Moreover, as in the casc of spelling, in the use of capitals also, there should be
consistency. Another general rule is that words which are used in a general
sense do not take capitals. In legislation, there should not be any objection to the
a result
use of symbols and abbreviation unless the meaning becomes obscure as
of such usage.
the
There are however, certain special words and phrases with respect to
the words
use of which the draftsman should be very cautious. For example, avoided.
'aforesaid', 'said', 'above-mentioned' and 'aforementioned' are best
to should be made.
and instead a specific reference to the provision referred
following' care should
Similarly, in using the words 'preceding', 'foregoing',avoid them and making a
be taken and the draftsman could not do better than to
the words 'above' and
more specific reference. The same observations apply to 'hereby' is
'below'. So also in the case of 'herein' and 'hereinafter. The word
example, Section 23 is
used by a draftsman more often than is necessary; for
Words like 'namely' or
hereby repealed'". The word 'hereby' is unnecessary.whatsoever', 'wheresoever',
that is to say', should rarely be used. The words the words whatever',
and 'whosoever' are also to be avoided: instead,
a draftsman
'wherever' and 'whoever' should be used. Another phrase to which but it
usage is not incorrect
very often resorts is it shal] be the duty of'. The
merely use the
would be less pedantic and certainly more simple and exact to of using the
word 'shal!'. Whenever discretion is sought to be conferred insteadbetler to use the
phrases it shal] be lawful for' or 'shall not be lawful for, it is of the statute, is
provisions'
simpler word 'may'. A constant reference to 'the saying
instead of
also as a matter of style to be avoided. For example, sufticient to say
'notwithstanding the provisions of any other law' it is
'notwithstanding any other law'.
taken by the draftsman.
In using the following words special care must be every'", "deem", "less
They are-"and'", "or" and "'nor'; "in", "all", "each", "below'", over",
than", "more than", "not exceeding", "exceeding", "above", "may', 'such",
"under", "notwithstanding", "subject to", "otherwise', "shall", mean
"same", "where", "when', "unless", "except", existing" (existing may
existing at the comnencement of thc Act or thereafter), "before", "after",
"forthwith", "as soon as possible", "immediately'", "without delay", "without
"without undue delay". In view
any reasonable delay", "as soon as may be" and
162
 Legislative Drafting 709

of the meconClable decisODs on the jusdem Generis ule and the expressio
niLS rule, is best to state the class irstand then cumcrate the items intended
io be exCCpled.
As regards tensc, the normal ule is to use the present tensc for the operation
of the law and indicate by appropriate words conditions preccdent in the past
lense and applicability of the Act to past and future cvents by using the phrase
before or after the Ac'.
Since the 'masculine' cmbraccs the feminine and 'singular'' includes
"plural" it is in order to use the masculine singular form. If exceptions are
intended they should be indicated.
In every 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 clear in his mind as
to what a particular department of the Governnent, 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
vjolated, 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
laken to see if inter-State sales are involved. The draftsman should also take
care to see that Jegislation does not go contrary to Directive Principles set out in
Part IV of the Constitution.
The drafts1man 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 nust have pragmatic intuition,
i.e., 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
163
 Chuptcr XIIl
Legislativc Drafting
The reader of this Chapter may immediatcly be reminded of the sarcastic
remark of George Bemard Shaw that---he who knows does and that he who
docs not know tcaches. The author himsclf was so reminded whenever he carne
acrOss the statement that aparticular provision of Jaw was inartistically drafted.
He felt whether the critic would rcally have done any better. For example, in
Pul1kuri Kotayya v. Emperor, Sir John Beaumont, delivering the opinion of
the JudicialCommittee of the Privy Council. said:
"Section 27, which is not artistically worded. provides an exception to
the prolhibition imposcd by the preceding section, and enables certain
statements made by a person in police custody to be proved."
Actually. the author always thought that the section was very well drafted
by Sir James Stephen, and it was judicial interpretation that made Section 27 not
only an exception to the 'preceding Section 26', but also to Section 25 and
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 policeofficer'. 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 rules of interpretatiön the author felt that much of the
difficulty that a cout was faced with, while trying to gather the intention of the
legislature, could have been avoided if certain basic rules were followedby the
draftsman and also, if his attention is drawn to the difficulties in choosing and
using various expressions and words. The author has therefore rushed in where
better nen have feared to tread.
Language is not merely a means of communication but it is also the chief
mediumn 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
Tnodulation of his vojce and change in intonation. But when words are printed,
and they are read, these other aids are not available, and hence, the words used
must be, as far as possible, precise, and the arrangement of the words should be
such that there is no syntacticambiguity.
156
1. AIR 1947 PC 67: (1947) LR 74 IA 65, 76.
2. AJR I960 SC 1025: (1961) 1 SCR 14.

|702 )
 703
Legislative Drafting
English
In Ibdia there is a special ificultv becausc the language uscd is the
ianguage. Even if one of the various Indian languages were used the problem
would continue, because, no language is known to all the Indan people, with
the resl that shades of meaning are not always clear. Words derive
colour from
blurred
their context and many words in daily use have, as \Wittgenstein puts i,
but fringe
cdges'. The central meaning of a word would perhaps be fairly clear draftsman
the
meanings are not always obvious. I is, therefore, necessary that
he
should use, as far as pOssible. one word only for aparticular mcaning whichand
has in mind. For doing this he should frequently consult dictionaries
the
anthologies of synonyms. Even so, it will not always be possible to choose into
to take
right word, and judges, when interpreting a statute, will have
to draw the line
account various considerations. For example, it is very difficult
and short,
between drunk and sober, between thick and thin, between long
reasonable and unreasonable, few and many, rich and poor, etc.
words which may
Another requirement is that the draftsman should avoid Constitution is highly
have emotional overtones. The Preamble to the Indian emotion, that the result
Sonorous, inspiring. evocative and so fully charged with
various Articles of the Constitution,
is, in trying to use it for the interpretation of eye.,The learned advise,
leaned Judges have not been able to see with the same
such words should be used by
quoting Montesqieu, that 'it is essentialthat onlynotion in the minds of all men
same
the law-giver as are bound to produce the
Even so, if the draftsman remembers
but this would be a task for a superman.
pitfalls. Sir Emest Gowers' advice
his objective he would be able to avoid many
is,
seems to be based upon
The whole of our modern drafting technique
possible, to cover every
the obviously fallacious assumption that it istrying to do the impossible
particular eventuality. s it not time we gave up
general principles?
and concentrate instead in laying down broad
According to Prof Harry W.Jones,
interpretation, on issues which
It must be kept in mind that so called
draftsmen of a statute, is, itself,
were wholly beyond the foresight of the issue is whether the inevitable
Jegislative in character. The substantial
judicial legislation is to forward the policy of the legislative authority or to
he must act as a lawmaker to fill in
retard its fulfilment. The judge, when delegated
gaps of a statute, exercises not original legislative power but possessed
the upon administrative officers
power, comparable to that conferredlegislative authority. Each has the duty of
of rule-making or subordinate detailed rules
implementing the general policy of an enactment with
unforeseeable particular
the infinite variety of legislation is, in effect,
applying that policy tocircumstance that judicial
situations of fact. The insisting upon the necessity of its
retroactive, is but another reason for
policy.' "
consistency with the general legislative 19 of the
'reasonable" in 'reasonable restrictions" in Article
The word
such word which requires judicial ingenuity and perspicuity
Constitutionis one
157
 in its interpretation. Suppose a restriction is imposed on a fundamental right.
Prot Alan Gledhillremarked in 1964 in his Republic of lndia':
The Dircctive Principles set out a number of objectives to guide
legislative and cxCcutive policy. They are no: enforceable in a court but a
study of the legislation of the Indian Legislatures since Independence will
reveal that Indian Ministers havc 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 intcrest; 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 intcrest."
But the point is, whilo 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 have 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
adopted Democratic Socialism, to be attained by Fabian methods and nothave by
what Herbert Spencer calls the 'New Toryism'.
There are many words which have different
context. The draftsman will have to be careful tomeanings depending upon the
avoid such words and must
choose a synonym with a more precise
did not know the difference between meaning. There is a story of a lady who
Catholicism and
was intrOduced to two clergymen, a Catholic and a Protestantism: When she
that the Catholic gentleman was 'Father so and Protestant, and she was told
so',
asked him if he was also a father, to which the she turmed to the other and
No, Iam a married man and have four Protestant gentleman replied,
children.""
Therefore, a command over the language, a thorough
acquaintance with other relevant material relating to the knowledge of the law,
of the objective to be law, a clear perception
achieved, and the capacity to express in clear and
language how the legislature intends to achieve thè precise
essential in a draftsman. It was Stendhal's object, are absolutely
exarmple of perfect style and that is the Code position that there is only one
would read that Code once every year in Napoleon. It was said that
order to make his style more Stendhal
Before the technical details are precise.
more concerned with the discussed there are some aspects which are
mechanical
(1) The draftsman should
aspects of drafüng:
have a separate page for each
should leave a section and he
occur. Such asufficiently wide margin for
method would also facilitateanyeasy
notes or corrections as they
particular section has to be referred to .for the reference, because, if a
section, a loose sheet purpose of drafing another
the scope of an earlier will be more helpful than turning over pages to find
changed if necessary. section. out
Moreover, the arrangement of the sections can be
158
 another
(2) The draftsnan must have at least one good dictionary, ad Dictionaries
cxplaining the usage of words. Chambers and the Concise OxfordThesaurus for
Roget's
are idcal for thcsc purpOsCS. I is also nccessary to have
precise word
choos1ng the next appropnate synonym or even for arriving at the
in the first placc.
(3) 1f a team of draftsmen is working on a long and complex measurc, apart
from consultations between thcm, there shouldbe someone to supervise and co
ordinate their work for the production of a consistent and integral whole.
skill.
Drafting the text of astatute or aConstitution is not just an art but is a
It is 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 ofa
superfluous language. Lhe skill of a draftsman in the context of drafting
statute or the Constitution lies in brevity and employment of appropriate
phraseology wherein superfluous words or repetitive words are avoided. It
drafting the
appears that the aforesaid principle was kept in mind while 1919 and the
Government of India Act, 1915; the Government of India Act,
has
Government of India Act, 1935. The draftsman of the Constitution of India
that there is no
taken care to maintain brevity and the phraseology used is such
in the
ambiguity while making provisions of the constitutional institutions
provisions of the Constitution.4
PUNCTUATION
Crawford, in his book on 'Statutory Construction', says that when a statute
should
is carefully punctuated, there is no doubt as its meaning, weight has its
undoubtedly be given to punctuation. Punctuation, therefore, certainly plain
uses but the general tendency of courts is not to allow it to control the
use
meaning of a text. This is because the draftsman very often does not
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
allowed to
it cannot certainly be regarded as a controlling element and cannot be
control the plain meaning of a text.5
stop.
The Stop.-The most important punctuation mark is the period or fullneither
It has to be placed at the end of a complete sentence which is
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', 3rd Edn., Oxford a-d IBD Publishing Co. Pvt. Ltd., 66
preserves Peter
Janpath, New Dclhi 110 001. This is the only true Ro i's Thesaurus whichcarrying Roget's
Roget's Original Methodology and Scheme. lot''versions and editions
name merely purport to be the real thing.
4. Election Commission, In re, Special Ref. No. I of 2002, (2002) 8 SCC 237.
5. Aswini Kumar Ghose v. Arabinda Bdse, AIR 1952 SC 369.
159
 The commma is a malter of sense and expeicnce. The only rule is that if it
makes the meanng learer put in a CoMma: if not, lcave it out. A COMDma is used
to mark off a phrase or aclause when it is thought that il makcs the sense clcarer
1o do s0. is also uscd to mark aseries of words. phrases, or clauscs. Another
use of the coma is when a word is placed out of its natural order for the sake
of stress. This usc is hovever unlikcly to occur in legislative drafting.
How far a clausc which follows upon acon1ma governs every clause
that
prccedes thc coMma is amatter not frec from doubt 6
The semicolon is an important and interesting mark to use. It is
than a comma, which is used more for a pause: but the semicolon does stronger
not
imply a complete break like the full stop. It only makes a partial break and is at
the sanme time alink between sentences appearing on the same
implies that what follows at least partially explains and amplifiessubject.
It often
that comes before it. It is often used instead of a comma when it is the sentence
'and' or 'or' or but'. followed by
Color.-It implies that what follows explains and amplifies the sentence
that comes before it. I is generally used before a quotation, or to
of some word such as 'namely'. take the place
STYLE
The persons who are likely to be affected when anew law is made fall into
three different categories:
() The persons who make the law;
(2) Those menmbers 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 legal rules and to
make themn
known to those who are likely to be affected by those rules. Therefore,
condition is simplicity.While precision is essential, as it was indicatedthein first
opening chapter of this book, too much adherence to precision may lead the to
unnecessary complexity and, therefore, to obscurity. In Jane Austen's novel
Northanger Abbey', the heroine Catherine Moreland says, Icannot speak well
enough to be unintelligible.""]To achieve simplicity there must be economy in
the use of words, directness towards the
used, and some kind of order.
thought, familiarity of the language
a

Brevity is, of course, the soul of wit, but economy should never be
to such an extent as to sacrifice clarity. [Horace carried
said: *1 labour to be brief and
become obscure.'" The famous French poet Boileau advises:
Polissez le sans cesse, et le repolissez:
Ajoutez quelquefois, et souventeffacez.

6. State of W.B. v. Swapan Kumt he, (1982) I SCC 561: 1982 SCC (Cri) 283.
 (Polish it without ceasing and poisb i again; add Occasionally, and more
often ub out.)
In order tobe simple one has to be straightforward. Circumlocution of every
kind must be avoided. Thercfore, it is necessary that a draft should be read over
and over again and scrutinized to see if there are any roundabout expressions.
I is obviously necessary that familiar words should be used for conveying
the draftsman's idea instead of the unfamiliar. Hence a draftsman should have
with hin not only an ordinary dictionary but a dictionary of synonyms from
which he can choose more familiar words and avoid obscure ones.
As far as order is concerned the draftsman should maintain some kind of
logical relationsbip between one part of the draft and the other. There should
obviously be spme order ìn the chapters and within cach chapter.
PRECISION
Precision and brevity are generally the hallmarks of legislative
draftsmanship.?
To be precise adraftsman 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 to a great extent\If one is clear in onc's mind as to what exactly
one wants, one will generally find the necessary words to clothe one's ideas.
ÇBut, 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 adate is '2nd January, 1979'. With respect to numbers, it is best
to use figures instead of words, and with regard to figures the commonly
accepted Arabic figures should be used. Unfortunately there is a tendency to use
Hindi figures for numbers and this is bound to cause confusion even if all
Indians become familiar with such numbers. When numbers are so important in
international malters, commonly accepted symbols should be used. In such a
matter misguided chauvinism has no place. As regards reference to legislation

7. Maktool Singh v. State of Punjab, ( 1999) 3 SCC 321:4

13fccCi) 317.
 the connonly Ceplcdl pracuce is to nse figures and not words: for example,
Secion 19° or 'sub-secion (3)' instead of 'Scction ninetecn' 'or sub-secuon
three'. Also a reterence to sub-paragraph (ii) of paragraph (a) of sub-section (2)
of Scction 15 is better referred to as "Section 15(2)(a)(i)'. Where reference is
made lo a prOvision of he same statute, it is not necessary to use the words
"this Act; but where refercnce 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 nccessary is consistency, and if aparticular spelling is used
for a particular vord the same should be maintaincd whenever that word is
used.
With respcct to capitals the rule iswhen 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 general
sense do not take capitals. In legislation, there should not be any objection to the
use of symbols and abbreviation unless the meaning becomes
of such usage. obscure as a result

There are however, certain special words and phrases with respect the to
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 draftsman 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',
and 'whosoever' are also to be avoided; instead, the words 'wheresoever',
'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
phrases "it shall be lawful for or 'shall not be lawful for', it is better tousing the
use the
simpler word 'may'. A constant reference to 'the provisions' of the statute, is
also as a matter of style to bc avoided. For example, instead of
saying
'notwithstanding the provisions of any other law' it is sufficient to say
'notwithstanding any other law'.
In using the following words special care must be taken by the
They are"and", "or" and "nor"; "in", "all", "each", "every", "deem",draftsman.
"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 thereafter), "before", "after",
"forthwith", "as soon as possible", "immediately", "without delay", "without
any reasonable delay'", "as SQon as may be" and "without undue delay". In view
162
of the iteconcilable decisions on the Ejusdem Generis rule and the expressio
unius rule, it is best to state theclass first and thcn enumerate the items intended
io be excepted.
As regards tcnse. 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' cmbraces 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 clear in his mind as
to what a particular department of the Government, which is interested in the
statute, or the Minister at whose behest the drafting is being undertaken, wants.
Constant consultation, therefore, is necessary before the draftsman can make his
draft final. The draftsman should have an understanding of the background
information so that he can fit in the legislation in proper perspective or context.
The main object of the statute should be clearly and fully stated; the means
whereby such objects are to be achieved should also be set out elaborately and
clearly. The draftsman should have a thorough understanding of the legal
implications and difficulties; for example, he should know whether the
particular matter is mentioned in the list with respect to which the legislature is
competent. He should also know whether the particular legislation can be
included in the item set out in the list. After satisfying himself of the
competency, he should make sure that no provision of the Constitution legislative
violated, such as Fundamental Rights and other Articles such as Articles 301 tois
304. He must make sure whether prior sanction of the
is to be obtained; in which House of the Governor or the President
Legislature the Bill should be
introduced and, whether subsequent assent of the President is
he must have acomprehensive knowledge of the necessary. Thus,
procedure. Suppose a sales or purchase tax is to beConstitution and legislative
taken to see if inter-State sales are involved. The imposed, care should be
care to see that Jegislation does not go draftsman should also take
PartIV of the contrary to Directive Principles set out in
Constitution.
The draftsman should then enter the
the existing law, the potential dangers second stage, that is, he should analyse
Constitution, and more than anything else, heof must violating provisions of the
have pragmatic intuition,
i.e., he must be certain that the
statute which he produces will be workable. All
decisions of courts, reports of any committees,
all relevant material must be discussions in journals, in short,
and other countries should be analysed. Any prior attempts or legislation in our
errors committed by others. A examined. We become wise only by avoiding the
legislation is
made to sell." One danger lies in making a made to be passed as razors are
statute retrospective. Whether such
retrospective legislation is permissible and whether it achieves thepurpose
163 of
 making it rctrospective should be clcarly kept in mind by the
statute should violate Public International Law or draftsman. No
nations. I should not conflict with existing law unless go against the comity of
in which case, it should be such conflict is intcnded.
cxpressly
matter 1which the draftsman should stated. Territorial competence is another
much power to the officers of the remember. The law should not give too
Government;
should, as far as possiblc, be avoided. A the same that is, bureaucratic autOcracy
may affcct the interests of Government time, any proposals which
kept within strict limits. Therefore, the departments or public bodies should be
authorities on whom power is intended todraftsman should ascertain the
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
has the coresponding rights and how theseobligations are to be imposed, who
enforced. If a repeal is intended it is better torights and obligations are to be
say so instead of leaving it to
implication. Above all, practicability or workability is a matter which is
often forgotten by the draftsman in his anxiety to produce a statute which very
satisfy his Minister's zeal. would
The third stage relates to design. Here the
whether legislation is in fact necessary or whether,question to be considered is
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
various connected statutes. If the legislation is not ofnewan
statute in relation to
short precis of the basic objectives to be achieved and amending character a
the means by which those
objectives are to be achieved should be made. Then
and developed. It is better to make a marginal note ateach topic must be taken up
this stage to describe each
proposed clause. Care should be taken to see that distinct
matters should not be included in one and the same Act. Theand totally different
not be tenuous. Sir Cecil Carrs gives an connection should
instance of 'he head of an Oxford
College, in far-off days when such appointments were
of celibacy, who astonished the subject to the condition
fellows of his Society, by announcing his
marriage and confronting them with a clause in a local Canal Act
him statutory sanction'. There is also another which gave
story:
"More than a hundred years ago, when divorce in the
was possible only by Act of Parliament, an unhappily modern sense
was promoting a Waterworks Bill for his town; and inmarried Town Clerk
with something technical about filter beds and clause 64, mingled
innocent Jittle phrase 'and the Town Clerk's marriagestopcocks, appeared the
Nobody could explain how these words got there, and, isin hereby
fact,
dissolved'.
noticed them while the Bill was going through nobody ever
Parliament,
fast asleep Jong before they got to that clause. In for everyone was
Assent was given, and the Town Clerk lived happily ever due course the Royal
after."
In the case of amending legislation there are
law may amend by deleting some seçtiÍn orthree types: (a) the amending
sections, or deleting and
substituting new materials; (b) the new law may completely repeal the old one;
8. (1950) 66 LQR 216.
164
 with the carier lav though apparently it
and (c) it might implicdly be connectedadvisable for the draftsman to collect and
is aseparate enncment. It would be amended, preferably in
clarify all judicial interprctations of the portions to be and omissions
chronological order, and make adcquate provision for the errors
the particular
pointed out. The draf1sman should consider which category
legislation he is drafting falls into and should draft suitably.
which is
The fourth stagc may be described as the composition stage
described by Sir James Stephen in the following words:
full
With regard to any work that Ihave done, Ihave always found it
of mistakes and when they have been pointed out to me by some other
person, Iconsidered Iwas under the same sort of obligation to him as one is
to adentist. It is not very pleasant when you hear about it.'"
Sir Alison Russel also states to the same effect thát '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 invie 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 and then read it. That would disclose to him the
deficiencies in his draft. A draftsman should not hesitate to use as precedents
similar laws made in other States or other countries. A study of such laws would
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 and also the case law on that statute so that he can
avoid the mistakes and deficiencies of the statute which he is using as a 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 ascrutiny 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 tÝ correct obvious mistakes. It is true that a court can
correct such mistakes, as for example mistakes in aschedule, but it is well to
remember that the court's power is only to correct obvious slips of
draftsmanship.
165
 The statute should obviously be arranged in
then contain a broad outline of how the parts. The first draft should
various parts should be organiscd and
arranged with sub-divisions, heads and sub-heads. After the first draft is drawn
up, the next stage is to draw up the schcme,
the consisting of: (a) the long title, (6)
preamble, (c) the enacting formula, (d) the short title, (e) the
application, () definiiions, (g) he main provisions, () provisions extent and
administrative machinery, if any, (i) penal provisions, if any, ) relating to
regulation-making power, (k) any temporary provisions, () repcal andrule-and
clauses, and (n) schedules, if any. Such an saving
clarity of presentation and it makes reference easy. arrangement would help in the
to consider the various parts such as Under this head we will have
headings, illustrations, marginal
arrangement of sections. The real danger in all these matters is that thenotes, and
of the heading may be utilised and
construed in such a
language
restrict the actual scope of the language used in the way as to en]arge or
was mentioned in the first chápter this is enacting provision. But as it
not a real danger if the method
suggested by the author is adopted;
clearly kept in mind then it is very easynamely, if the objcct of the legislature is
to interpret the section, because, we will
then cho0se that interpretation which will
achieve the object. It is better to have
general provisions first and then special provisions.
given to important provisions over the Similarly, priority should be
permanent proviSions over temporary ones.not-so-important provisions, and to
Every Act has a long title and it has a
purpose, namely, it indicates the
general object of the Act. In construing any provision
can sometimes be utilised. That of the statute the long title
being so, it is better to make it as elaborate as
possible. Where a long title refers to another Act, the
short title of that other Act. reference should be by the
Next comes the preamble. The preamble, like
Act and may the long title, is part of the
legitimately be used as an aid to
necessary but proper to make it as elaborate asconstruction. Hence it is not only
possible. Herald J. Laski once
said, the preamble is at least an
authoritative guide which, in the hands of a
competent draftsman, could hardly fail to be an instrument of
good mneans, as Coke put it, for
collecting the intent and
clarification, a
which the makers of Act intended to showing the mischief
remember that there are obvious remedy." " At the same time it is
well to
in a concise andcompressed form.dangers in trying to state objectives of the Act
Thereafter comes the enacting
Parliament (-Legislature) inthe .formula which, in India, is "Be it enacted by
year of the Republic of India as follows:
Next comes the short title. The
of reference. Lord Moulton function of the short title is to enable facility
necessity of always referringdescribed
it as a statutory
to the Act by its
nickname to obviate the
of the apostrophe in the short title full and descriptive title.
should be carefully watched-for The use
'Advocates Act' is correct. "Advocate's Act' is incorrect, example
concerned with Advocates and it is not possessed by because the Act is
which would justify the use of apostrophe. Advocates the sense
in

166
 he statute could hen deal with the
date of commencement of the
Cnacment or of any p:ovisiOD of thc
cnacnent. Sometimes some provisions of
a statute are t0 come into forcc at a future late, by a
Gazetle. If that is so, il should be made clear in thc Notification in the Official
clause of the Bill dcaling
With CONNEncement.
The nexI stagc is the teIritorial application of the Act.
there is obviously no difficully because the statute can onlyAs regards the area,
over which the legislature has jurisdiction; but in the operate in the area
persons outside, as in the realm of taxation, statutes
application of the Act to
extrateritorially. The competence to pass such a legislation must, may operate
therefore, be
carefully examined by the draftsman.
In dealing with definitions the word to be
defined must be
inverted commas. A definition may, (a) narrow the common identified (b) by
meaning,
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 Gujaratl0,
the Supreme Court held that:
"it is true that 'includes' is generally used as a word of extension, but
the meaning of a word or phrase is extended when it is said to include
things that would not properly fall within its ordinary connotation. But it
may sometimes mean 'means'."
The expression 'means and includes' should never be used because the
draftsman would then be trying to put together complete and incomplete
meanings.
Some more rules relating to definitions are- -generally, words must be
chosen and given the meaning according to accepted usage. This applies to
technical words also. If words are used in a former statute with a particular
meaning and the same words are used in a latter statute, it is a good rule to
confine such words tosuch meanings only. Otherwise, allthe Law Lexicons are
useless and may be thrown into the dustbin. Different words for the same
meaning should be avoided and equally the use of the same word for different
neanings should also be avoided. The legislature should be reasonably
consistent. Words defined in the General Clauses Act, 1897 should be given the
same meaning and should not be defined in the particular enactment. If a
different meaning is intended it is better still to use a more appropriate word.
The draftsman should be imaginative and use words which will stand the test of
time when old words may take in newmeanings. Also, (a) adefinition should
9. See also Municipal Corpn. of Delhi v. Tek Chand Bhatia, (1980) 1SCC 158.
J0. (1976) 4 SCC 601.
167 1
 never include anv substantive matter. (b) a word that is not uscd in an cnactment
should not be dcfincd. () a definition should not ncl:de fantastic meanings.
and () though il is generally done, it is not necessary to statc that adefinition of
aword is to apply also to its granmatical variations and cognate expressions.
Similarly, the words 'unless the context otherwise requres may also be omitted
though it is safer to usc them. In Meur v. Jacobsl!, it was held that such words
are always implicd.
In legislative drafting parlance the distinct and numbered divisions of an
Act are retercd to as scctions and the sub-divisions of a section which are
numbered in round brackets are referred to as sub-sections, and cach section as
also apart of a section of an Act is considered a separate enactment. The word
'enactment' does not mcan the same thing as Act'. 'Act' means the whole Act,
whereas ascction or part of a scction may be an enactment. But while referring
to aprovision and numbered sub-division of the provision of an Ordinance the
words clause' and sub-clause' are generally used. In viewv 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'.12
The only other natters to which the draftsman should pay attention are the
following:
(1) In many modern statutes, there is provision for the constitution of
administrative tribunals. It isalways 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 rules 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 laxation the charging sections should
be worded very carefully from the point of view of the assessee as wvell as the
Revenue.
(5) One of the main points of confusion which anses in the interpretation of
statutes is whether a particular provision is mandatory or directory. Very often a
provision couched in mandatory language is interpreted by couts as directory
) (J875) LR 7 HL 481.
12. Prabodh Verma v. State f UP4S3'*4 SCC 2S1: 1984 SCC(L&S) 704.
 and cqually the other wvay. The
draftsman should (ake care to see that if the
provision is intended to be mandatory there should not be any doubt or
ambiguity left. It is better to havc a definition that 'shall' signifies that the
provision is mandatory. In this context the
noticed. In State of U.P. v. following serious anomaly may be
held thc phrase 'shall be Manbodhan Lal Srivastaval), the Suprene Court
consulted'
directory. But in Union of lndia v. in Article 320(3) of the
Constitution, to be
samc phrase in he first proviso to Sankalchand4, 'Chandrachud, J.', held the
the sanme case, it was held that Article 124(2) to be mandatory. Further, in
Justice of India' in Article 222(1),thewere
words 'after consultation with the
consult the Chief Justice. mandatory; that is, the President Chief
must
(6) In Some cases
offences are created evern without mens rea and
liability is fastencd upon the master for the
illegal acts of
vicarious
provisions must be absolutely clear so his
that the citizen can take all servant. Such
steps to avoid any penal liability. reasonable

169

13. AlR 1957SC 912: 1958 SCR 533.

14. (1977) 4 SCC 193.