Bill Drafting

LEGISLATIVE DRAFTING & BILL FRAMEWORK
An Indian Legislative draftsman requires the following

(i) An intimate and full knowledge of the Indian Statute book
(ii) Familiarity with legal principles as expounded by the Courts
(iii) A full and intimate knowledge of the Constitution, particularly fundamental
Rights and provisions relating to distribution of legislative powers between the
Centre and the State
(iv) Knowledge of procedure in Parliament or Legislative Assemblies,
administration, Courts at work including societal living conditions.
(v) Draftsman should be aware of the rules of interpretation adopted by the Courts
•If the draft is not expressed in simple language, it is a matter of Judiciary to

interpret
•In Vaswani v. State of West Bengal the Supreme Court ruled that "lack of
Legislative simplicity has led to interpretative complexity”
•The Constitutional and other legal validity of the laws can be challenged in a court
of law
GENERAL PRINCIPLES TO BE FOLLOWED BY A DRAFTSMAN

• To get a clear understanding of the law as it stands
• Study any existing legislation regarding the matter carefully to look whether the
new legislation is actually required, or desired end can be obtained by framing rule
• Ascertain the judicial decisions or matters under consideration or custom
• Should prepare a clear statement of what the law is and in what it is proposed to
alter
• Familiar with interpretation Act locally applicable and thorough knowledge of
General Clauses Act ,1897
• Hasty drafting is to be avoided and if compelled to draft a bill urgently should do
the best
• While amending an Act of general application special care must be taken
• Should use simple English
• Language should not be too narrow or broad
• Draftsman should refrain from using passive voice as it produces uncertainty
• Should not vary the spelling of each word
• Different matters should not be dealt with in the same Act
• Shall not insert or annex a clause foreign to what the title of the Act import
• While drafting a bill the main principle is to be considered
• It should be stated with clarity and brevity at the commencement of Bill
• Section which depends on another Section should not come before a Section on
which it depends
• Suitable provision for implementation should be in the Act
• Short title and definitions section is placed at the beginning
• Temporary and Transitory provisions should be placed at the end
• Matters in detail should be placed in a Schedule
• List of statutes intended to be repealed is to be given as separate schedules
Moral principles to be followed by draftsman

• Statute should not confer power with responsibility
• Act imposing far reaching reforms shall not be brought into force immediately
• Obligations impossible of performance should not be imposed
• Jurisdiction of ordinary courts should not be excluded unless there are strong
reasons
• Immunity from liability given to state agencies shall be kept to minimum
• When jurisdiction is given to determine questions of right provisions of appeals
should also be provided
• Legislation should not be inconsistent with the elementary reasons, justice or
common sense
General frame of a statute
1. The Long Title

• The title given at the beginning of an Act
• Is not given as part of the provisions
• Usually it starts with the words, "An Act to provide .....
2. Preamble :
• This is a preface to the Act
• It has been said to be a key to open the minds of the makers of the Act and the
mischief which they intended to redress
• It may be referred to for assistance in explaining the scope and objects of the Act
• Whenever added in a statute they are given as part of the Act
• It is now limited to constitutional matters of application of international conventions
3. Enacting Clause :
• The form adopted after 26th January 1950 is as follows: "Be it enacted by
Parliament in the ………year of the Republic of India as follows“
4. Short title:
The 1st section in an Indian enactment usually given the "short title" of the Act. The
year of enactment is added to the short title; e.g "This Act may be called the ……….
Act, year
• Serves as signboard for the act main object is to facilitate citation of the Act
• Should be simple and short
• Must not mislead the reader by concealing or over-stressing the Act
5. Extent and Commencement Clause :

It describes the jurisdictional extent of this Act and date of applicability of this Act.
e.q., Extent, Commencement.—It extends to the whole of India 1 [except the State
of Jammu and Kashmir]; and it shall come into force on the first day of September,
1872.
6. Definition or Interpretation Clause :

Statutes contain definitions of certain words and expressions used in an Act.
Definition gives the interpretation of certain words or expressions, they may include
or exclude something, may be of restrictive extensive, ordinary or special kind.
When a word or expression has been defined prima facie, such definition governs
that word in the body of an Act everywhere, unless specially excluded. The object of
definitions is to avoid of frequent repetitions in describing the subject matter, to
which the word or expression so defined is intended to apply. A definition is not to
be read in isolation, it must be read in context of its use. Where definition itself is
ambiguous, it has to be interpreted in the light of other provisions of the Act.
7. Miscellaneous provisions :
• Protections of action taken in good faith by authorities, exemptions from the
operation of the Act and power to delegate functions or to make rules will form the
major part of this
8. The proviso :
• Whenever necessary can be inserted below a section, subsection, clause or sub-
clause as the case may require.
• The proviso should always be printed separately from the main part of the section
The main functions of the proviso are as follows :-
• To create an exception in respect of certain matters which would otherwise come
within the section
• To quality or restrict the operation of the main part of the section
• To exclude some possible mis-interpretation of the section. A proviso should never
be used to extend the scope of the section.
9. Delegation Clause :
The parliament, through a section in the Act, delegates its legislative powers
to the government to frame rules or regulations, to provide clear cut procedures and
details to supplement the Act. The gambit of rules, regulations, by-laws, sub-rules
are referred to as subordinate legislation.
The parliament cannot delegate its essential legislative powers to the

executive, it must provide the basic guidelines for the executive to follow for it to
frame rules. Similarly, the executive cannot frame rules which go beyond the
mandate of the Act.
10. Repeals :
• Temporary or transitional provisions relating to repeal or amendment or other laws
will generally come at the end
• When whole of the section or subsection is to be repealed usual form is
………………… of the principal Act is hereby repealed
• When certain words are deleted and other words are to be substituted the form is
In Sec …………. of the Act for the words
…………. The words…………………. shall be substituted
11. Schedule :
• In some enactments there will be the necessity to add a schedule
• Sometimes there may be more than one schedule, eg. Constitution of India, the
Indian Companies Act,
12. Saving Clause :

• Object is to preserve what is already existing and not to create new rights and
obligations
• Included to establish beyond doubt that provisions of new statute is in addition to
the existing law
• Form- “Nothing in this Act shall effect or derogate from……………………..
13. Declaratory statute :

It is an Act passed to remove some existing doubts or to correct an interpretation
which is erroneous according to the legislature.
14. Penal statute :

• It imposes a new disability or punishment for violation of its provisions where in
offences may be defined
15. Codifying and consolidating Acts :
• When the entire law on a subject is reduced to a single statute, it is codification
• A consolidating statute consolidate in one Act the provisions contained in a
number of statutes as interpreted and applied by judicial decisions
16. Repealing and Amending Acts :

• One statute which terminates another expressly or by necessary implication is a
Repealing Act
• Amending Act is for the purpose of making an addition or alteration to the original
Act.
17. Validating Act :

• It is an Act to validate a statute which would otherwise be invalid or which may
have been declared invalid by a competent Court

Bill Drafting

Uploaded by

Copyright:

Available Formats

Bill Drafting

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bill Drafting

Uploaded by

Copyright:

Available Formats

LEGISLATIVE DRAFTING & BILL FRAMEWORK

An Indian Legislative draftsman requires the following

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

GENERAL PRINCIPLES TO BE FOLLOWED BY A DRAFTSMAN

Moral principles to be followed by draftsman

General frame of a statute

1. The Long Title

5. Extent and Commencement Clause :

6. Definition or Interpretation Clause :

The parliament cannot delegate its essential legislative powers to the

12. Saving Clause :

13. Declaratory statute :

14. Penal statute :

16. Repealing and Amending Acts :

17. Validating Act :

You might also like