Drafting delegated legislation, the steps of drafting, and a drafting exercise

1. The steps of drafting, as the syllabus lists them

1. Pre-draft preparation. Obtain written instructions from the department; ask what problem the law is meant to solve and how success will be measured; study the existing law, the relevant List entries, the case law and comparable laws in other States or countries; identify who will administer and enforce the law; and prepare a scheme or outline of the Bill.
2. Drafting. Write the text to the scheme: definitions, substantive rules, administrative machinery, offences and penalties, rule-making power, transitional and repeal provisions. Write the central provisions first and the definitions last, when it is clear which terms need them.
3. Deliberation with others. Discuss the draft with the instructing officers, the Department of Legal Affairs on legal questions, the Finance Ministry on cost, other affected ministries and States, and, under the Pre-Legislative Consultation Policy (2014), the public.
4. Post-draft refinement. Test the draft against hypothetical cases; check every cross-reference and defined term; read it as a hostile litigant would; simplify sentences; prepare the Statement of Objects and Reasons, the Financial Memorandum and the Memorandum regarding Delegated Legislation; arrange for the Hindi text.

These map onto Thornton’s five stages (see the earlier drafting note): the first step covers understanding, analysing and designing; the second is composition; the third and fourth are scrutiny and testing.

2. Limits on delegated legislation that the drafter must respect

• Essential legislative function. The legislature cannot delegate the determination of policy itself; it must lay down the policy and standards and leave only their working out to the delegate (In re Delhi Laws Act, 1912, 1951 INSC 36).
• Within the parent Act. A rule that goes beyond the power conferred, or is inconsistent with the Act, is ultra vires.
• Within the Constitution. Subordinate legislation is open to challenge on the grounds that apply to an Act and some more. In Indian Express Newspapers v. Union of India, 1984 INSC 231, the Court listed them: lack of legislative competence in the delegate, violation of fundamental rights or of any other constitutional provision, failure to conform to the parent statute, repugnancy to the laws of the land, and manifest arbitrariness or unreasonableness.
• No tax, retrospective effect or new offence unless the parent Act clearly authorises it.
• No sub-delegation unless authorised (delegatus non potest delegare).
• Procedure. Where the Act requires previous publication of draft rules, section 23 of the General Clauses Act governs it; consultation and laying requirements must be followed.

3. Cautions in drafting rules, regulations and notifications

1. Cite the source of power in the opening words: “In exercise of the powers conferred by section 25 of the ... Act, 2026, the State Government hereby makes the following rules”. Wrong or missing citation is a common defect, though a valid power will usually save the rule.
2. Match the power exactly. If the Act authorises rules on “the manner of inspection”, the rules cannot create a new class of licence.
3. Use the Act’s definitions. Under section 20 of the General Clauses Act, terms in rules have the meaning they bear in the Act; do not redefine them.
4. Avoid Henry VIII clauses and removal-of-difficulty powers in rules; they belong, if anywhere, in the Act with a time limit.
5. Give reasons and procedure for any decision affecting rights: notice, hearing, reasoned order, appeal.
6. State commencement, savings and transition, especially when rules replace earlier rules (section 24 of the General Clauses Act continues old rules only so far as consistent).
7. Anticipate scrutiny by the Committees on Subordinate Legislation, which ask whether rules are within the Act, make unusual use of power, impose taxes, bar the courts, or have unjustified retrospective effect.

4. A drafting exercise

Instructions. A State government wants to stop the use of single-use plastic carry bags in markets. Shopkeepers who supply them should be fined, repeat offenders more heavily; municipal officers should be able to inspect and seize; the government should be able to exempt compostable bags and fix details by rules.

A poor first draft.

Its faults: “use” catches every shopper, which the policy did not intend (over-generality); “plastic bags” is undefined (vagueness); the fine is left wholly to rules (excessive delegation of an essential matter, and a penalty not fixed by the legislature); “the officer” is unidentified (hidden actor); “such action as he thinks fit” gives unguided power (Article 14); there is no exemption power, no procedure for seizure and no distinction for repeat offences.

An improved draft.

Why it is better. The prohibition targets only suppliers; the key term is defined with a stated exclusion; the legislature fixes the maximum penalty and distinguishes repeat offences; the officer and the power are identified and limited; the exemption power carries a standard (compostability); the rule-making power is general with illustrative heads, previous publication and laying. A complete Bill would add the long title, short title, extent and commencement, compounding of offences, protection of action taken in good faith, and repeal of any earlier order.

Practice exercises

1. Redraft: “Any person who drives rashly or negligently or in a dangerous manner on a public road and causes or may cause hurt shall be punished.” Identify the ambiguities (“or” chains, “may cause”, no penalty).
2. Draft a definition of “platform worker” that excludes regular employees, and test it against three borderline cases.
3. Draft a rule under a power “to provide for the manner of registration”, and check that it creates no new conditions of eligibility.

How this is examined

As a short note on “drafting of delegated legislation: limits and cautions”, as an essay on the steps of drafting, or as a practical problem asking the student to draft or correct a provision. For a problem, list the faults of the given text first, then give the improved text, then explain each change. Cite Delhi Laws Act and Indian Express for the limits.