Legislative drafting: from policy to Bill, and subordinate legislation
Drafting, Pleading and Conveyance · Unit I · Topic 2 of 19 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. From policy to provision
Legislation begins as a policy decision of the executive: a department wants to regulate, prohibit, license, tax or fund something. In the Union, drafting is done by the Legislative Department of the Ministry of Law and Justice; in Karnataka, by the Department of Parliamentary Affairs and Legislation. The drafter’s work runs in steps.
- Understand the policy. What mischief is to be cured, who is to be bound, who is to administer the law, what sanctions are wanted.
- Check competence. Is the subject in the Union, State or Concurrent List of the Seventh Schedule? Does the proposal touch a fundamental right, so that the restriction must be reasonable and tied to a ground the Constitution allows?
- Check existing law. What must be amended, repealed or saved.
- Design the scheme before drafting words: definitions, the authority, the duty or prohibition, the procedure, appeals, offences, rule-making, repeal.
- Draft, then test against hypothetical cases.
2. The architecture of an Act
Indian statutes follow a settled order, and an examiner expects to see it.
- Long title (“An Act to provide for …”) and, where useful, a preamble stating the purpose.
- Enacting formula: “Be it enacted by the Karnataka State Legislature in the Seventy-seventh Year of the Republic of India as follows:”.
- Section 1: short title, extent and commencement (often “on such date as the State Government may, by notification, appoint”).
- Definitions, opening “In this Act, unless the context otherwise requires,” in alphabetical order.
- Substantive provisions: the authority, the duties, prohibitions and rights.
- Procedure and appeals.
- Offences and penalties, with provisions on offences by companies and cognizance where needed.
- Miscellaneous: protection of action taken in good faith, power to make rules, power to remove difficulties, repeal and savings.
- Schedules for lists and forms.
3. The General Clauses Act as the drafter’s toolkit
The General Clauses Act, 1897 (and for Karnataka Acts the Karnataka General Clauses Act, 1899) lets the drafter write shorter laws, because certain rules apply unless excluded.
- Section 13: the masculine includes the feminine and the singular includes the plural.
- Section 6: a repeal does not revive what was not in force, or affect rights, liabilities, penalties and pending proceedings under the repealed law, unless a different intention appears. A repeal clause need not repeat this.
- Section 21: a power to issue notifications, orders, rules or bye-laws includes a power to add to, amend, vary or rescind them.
- Section 23: where rules are to be made after previous publication, the draft must be published, objections invited and considered.
- Section 24: rules made under a repealed Act continue, so far as consistent, under the re-enacting Act.
4. Subordinate legislation and its limits
The legislature cannot legislate every detail, so it delegates to the executive the power to make rules, regulations, schemes and notifications. In In re Delhi Laws Act, 1912, 1951 INSC 36, AIR 1951 SC 332, the Supreme Court held that delegation is permitted but the legislature cannot part with its essential legislative function: it must lay down the policy and leave only its working out to the delegate. For the drafter this yields three rules.
- Policy in the Act. The parent Act must state the purpose and the standards. “The Government may make rules for any matter it thinks fit” is open to attack as excessive delegation.
- Rules within the Act. A rule that goes beyond the rule-making section, or conflicts with the Act, is ultra vires. A rule cannot create an offence unless the Act authorises it, and the penalty is normally fixed in the Act.
- Control by the legislature. The parent Act usually requires every rule to be laid before the House, which may modify or annul it.
A rule-making section has a fixed shape: a general power (“to carry out the purposes of this Act”), then “in particular, and without prejudice to the generality of the foregoing power”, a list of matters, then a laying clause.
5. Model: a short Bill and rules under it
- Short title, extent and commencement. (1) This Act may be called the Karnataka Public Tanks (Protection from Encroachment) Act, 2026. (2) It extends to the whole of the State of Karnataka. (3) It shall come into force on such date as the State Government may, by notification, appoint.
- Definitions. In this Act, unless the context otherwise requires,— (a) “Authority” means the Tank Protection Authority constituted under section 3; (b) “encroachment” means any occupation of, or construction on, a public tank or its bed, bund or feeder channel without the written permission of the Authority; (c) “public tank” means a tank, lake or pond vested in the State Government or a local authority, and includes its bed, bund, foreshore and feeder channels.
- Authority. The State Government shall, by notification, constitute for each district a Tank Protection Authority consisting of the Deputy Commissioner as Chairperson and such other members as may be prescribed.
- Prohibition. No person shall make or continue an encroachment.
- Removal. (1) Where the Authority is satisfied that an encroachment exists, it shall serve on the encroacher a notice requiring removal within thirty days and stating the grounds. (2) The Authority shall not pass an order of removal without giving the encroacher a reasonable opportunity of being heard. (3) An order under sub-section (2) shall be in writing and shall state the reasons.
- Appeal. A person aggrieved by an order under section 5 may, within thirty days of the order, appeal to the Divisional Commissioner, whose decision shall be final.
- Penalty. Whoever contravenes section 4 shall be punished with fine which may extend to one lakh rupees, and with a further fine which may extend to one thousand rupees for every day during which the contravention continues after conviction.
- Power to make rules. (1) The State Government may, by notification and after previous publication, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of sub-section (1), such rules may provide for (a) the other members of the Authority under section 3; (b) the form and manner of service of notice under section 5. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature.
Rules under section 8: “1. These rules may be called the Karnataka Public Tanks (Protection from Encroachment) Rules, 2026. 2. The Authority shall include the Executive Engineer of the Minor Irrigation Department and the Chief Executive Officer of the Zilla Panchayat as members. 3. A notice under section 5 shall be in Form A, served by registered post and by affixing a copy on the encroachment.”
Note what the model does: definitions come before use; the duty in section 4 is a short prohibition; the hearing in section 5(2) and the reasons in 5(3) meet natural justice and Article 14; the penalty is in the Act, not the rules; and each rule traces to a head of section 8(2).
How this is examined
Five of the fifteen drafting exercises in the record (3 marks each) must be legislative. A good set covers: a short principal Bill like the one above, an amending Bill (“In section 4 of the principal Act, for the words … the words … shall be substituted”), a repeal and savings clause, a set of rules under a rule-making section, and a commencement notification. At the viva expect: the parts of an Act, the difference between “means” and “includes”, why a penalty is fixed in the Act, what excessive delegation is, and In re Delhi Laws Act.