Orient Journal of Law & Sciences (January 2011)

Volume V Issue 2                                                                                                    23‐25 

PRINCIPLES OF LEGISLATIVE DRAFTING: A STUDY

By
Dr. Mukund Sarda*

1. On the principles of drafting itself, Bentham’s work may be

said to be the starting point from which the modern theory
of legislative drafting is derived.1 Legislative drafting is a
difficult art.2 This relates to the expression of others ideas,
in concise and clear language and the difficulties inherent
in expressing them. A good draft requires the following
essential requisites:-
(i) It must be done by a person having the basic legal
knowledge:
(ii) Proper use of English language or the language in which
the legislation is drafted, as is the case with Indian
drafts being translated in Hindi or other local language
of the State;3
(iii) Ability and competence of the draftsman combined with
imagination and plenty off practice in doing this work.

This follows that a lawyer without practical experience

cannot take up the work of legislative drafting. In order to
enable the lawyers to take up this work, it is very necessary
to train them, as the work f legislative drafting very much
differs from legal writing.4 A mere knowledge of legal writing
is totally inadequate, unless one _ knows the legislative
drafting.

2. Legislative drafting has been described as both an ‘art’ and

‘profession’.5 Sir James Stephen6 narrated his experience in
the following words:
“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 have considered I was

                                                            
* Principal & Dean, New Law College, Bharati Vidyapeeth University, Pune.
1 Ilbert, “Mechanics of law-making” campentri lectures, Columbia University,
Press p. 94. (1914).
2 Hirandani, “legislative drafting: An Indian view” the Modern Law Review Vol.
27 NO. 1 at 1-2 ((1964).
3 The Central Legislation drafting s invariably translated; n Hindi and State
drafts in Telugu as n Andhra Pradesh.
4 Florence Dollo, “Tax legislation and the lawyers training needs - An African
Perspective”. Document series dated 24-10-2006.
5 Viswanathan, T.K. “legislative drafting - shaping the law for the New
Millennium”, Indian Law Institute p. 91 (2007).
6 Ibid p. 90.

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Orient Journal of Law & Sciences (January 2011)
Volume V Issue 2                                                                                                    23‐25 

under the same weight of obligation to him, as one s to a

dentist. It is not very pleasant, when you are about it.”
It is therefore, absolutely necessary that the Legislative
drafting be referred to - several others in order that the
errors be known and corrected or at east to one
independent critic. Knowledgeable criticism can be a long
way in improving the drafts.
3. Legislative drafting requires abundance of knowledge of the
language, its Grammar, the technical requirements of the
from of legislation and perform the task in a non-partisan
manner and keeping totally away from political
controversies. Once the draft is prepared and forwarded
either to the Government or legislative assembly, the
draftsman has no control over the draft, n as much s the
legislators, consultants and members of the public add
much of the inputs by way of additions, modification or
even by substitution of several aspects of the draft.
4. Dr. Elmer Driedger’s philosophy is very valid in legal writing
which enunciates the freedom of draftsman to write the
laws, freedom to use the fullest extent which the language
permits, not being obstructed by artificial rules or forms
and expressed in modern language. Use of ancient, archaic
or obsolete terms or forms to be avoided, as a common man
or an ordinary individual, may not be able to comprehend
what is contained in the draft.
5. Dr. C.K. Allen7 made an excellent summary of Montesquieu
rules on Legislative drafting as contained in his work,
“Spirit of laws” (1948). It can be stated thus:-
(i) Concise and simple style;
(ii) Terms chosen should be absolute. It should not give rise
to differences of opinion;
(iii) To deal with real and actual matters; hypothetical
situation should be avoided;
(iv) Simple reasoning of an average man to be adopted;
(v) No confusion should be created in the main issues dealt
with by a number of exceptions, limitations or
modifications;
(vi) The provisions should not be argumentative - Avoidance
of detailed reasons being given, as they would give rise
to controversies; and
(vii) Maturely considered s of practical utility.
6. C.K. Allen states that no perfect draft is possible, and it is
only an ideal. He expressed this in the following words:

                                                            
7 Dr. C.K. Allen, ‘Law in the making’ 484 (1964).

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Orient Journal of Law & Sciences (January 2011)
Volume V Issue 2                                                                                                    23‐25 

“To demand perfection of expression and sense is to expect

infallibility, not only of human foresight but also of human
language, and the fact that it is unattainable is one of the
serious draw-backs of Statute Law”8
However, the draftsman should make efforts*to reduce
doubts, ambiguities and mistakes to a workable minimum.
7. An Indian Legislative draftsman additionally requires the
following:-9
(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; and
(iv) Knowledge of procedure in Parliament or Legislative
Assemblies, administration, Courts at work including
societal living conditions.
8. Draftsman should be aware of the rules of interpretation
adopted by the Courts. In the Indian content, how the
Judiciary is finally looks at the legislative work becomes
very crucial. If the draft is not expressed in simple language,
it is a matter of Judiciary to interpret and a draftsman
cannot be sure whether the Court comes to his rescue or
not. As the Supreme Court has ruled: “lack of Legislative
simplicity has led to interpretative complexity”10 only in rare
cases, the Courts adopt a favorable construction of the
Statute11. In other cases, Courts could not help and left the
matters to the legislatures to rectify the draft.
9. Despite the fact that the draftsman has taken all the
possible care to attain success in his efforts, he has been
criticized for having produced half the litigation.12 As most
of the legislations affect the ordinary life of citizens from
“cradle to grave”, citizens are much concerned with these
laws and be ready to challenge in Courts, the Constitutional
and other legal validity of the laws.
                                                            
8 Dr. C.K. Allen, ‘Law in the making’ 484 (1964).
9 Bharat Bhushan v. P.C. Saxena AIR 1955 All p. 82. See also “The drafting of
laws” - Indian Law Institute, p. 32 (1980). Upto date case laws, with their
application is most needed.
10 Vaswani v. State of West Bengal AIR 1957 SC p. 2476.
11 Commissioner of Income Tax v. the Elphinstone Spinning & Weaving Mills Co.
Ltd., AIR 1060 SC 1019 at 1020.
12 Glanville Williams “The effect of penal legislation in the law of torts’ the
Modem Law review Vol. 23,233(1960).
Orient Journal of Law & Sciences (January 2011)
Volume V Issue 2                                                                                                    23‐25 

10. It is necessary to have a fair knowledge of the difficulties

faced by the draftsman in the performance of his job. As
observed by Julius Cohen,13 the difficulties may be
summarized s follows:-
(i) Pressure for quick decisions;
(ii) Low level of competence of many legislators;
(iii) Element of bias and pre-judgment factor of
manipulation;
(iv) Unwillingness of many to recognize the relationship
between
(v) Immediate, volatile emotionalism that often pervades the
legislative scene;
(vi) Allocation of work to various departments
11. In conclusion, the following suggestions are made:
(i) To relieve the difficulties of the draftsman by giving him
enough time to perform his job and also giving him
necessary freedom to do it;
(ii) Legislative drafting is a game of skill14 and a separate
discipline. Continuous training be provided to
draftsman;
(iii) Indian Institute of Legislative Drafting be crated on the
analogy of several Institutions established, with
branches spread over all the States, to run course on
Legislative drafting s well to impart training that is
required for draftsman.
(iv) Since law is an inter-disciplinary subject involving
other disciplines, specialized training be given in the
area of legislative drafting touching other disciplines;
(v) The various rules of interpretation and the latest
approach by. the Courts in evolving new
Jurisprudence by precedents, be made known to
draftsman, so that the laws drafted may be in
conformity with the laws declared by the Courts; and
(vi) A separate training programme is conducted for
legislative Assembly members and parliament, (MLA’s
& M.P.’s) in- the area of Legislative drafting, so that
the laws passed may serve the purpose for which they
are enacted and stand the test of judicial scrutiny.

                                                            
13 Julius Cohen, “The Good man and the role of reason in Legislative Law”, 41
Cornell law quarterly review 387 (1956).
14 Thronton , “Legislative Drafting” Butterworths, London 104 (1979).