The legislative draftsman; constitutional values, the General Clauses Act and interpretation as limits on drafting

1. The role of the draftsman

The draftsman turns a policy decided by others into legislative text. He is not the policy-maker, but he is more than a typist: by asking what the policy means in hard cases he often discovers that it is incomplete or inconsistent, and his questions force the department to decide. Thornton’s first two stages (understanding and analysing the proposal) are as much a part of his work as the composition of the text.

2. Skills, traits and abilities

• Legal knowledge — of the Constitution, the statute book in the area, the General Clauses Act, the case law on interpretation, and the procedure of the legislature.
• Command of language — precision, consistency, economy; the ability to see two meanings where the instructing officer sees one.
• Analytical power — breaking a policy into rules, conditions and exceptions, and arranging them logically.
• Imagination — foreseeing how the text will apply to cases no one has mentioned, and how a hostile reader will use it.
• Independence and tact — telling a ministry that its policy is unclear, unworkable or unconstitutional, without taking over the policy.
• Discretion — drafts are confidential until the government releases them.
• Patience and speed — drafting is often done under political deadlines, and amendments must be prepared overnight during a session.

3. Position, duties and responsibilities

In India Central drafting is done by officers of the Legislative Department of the Ministry of Law and Justice; States have their own law departments. The draftsman is a civil servant, but his duties run in several directions.

• To the government (the client) — to give effect faithfully to the approved policy and to advise on its legal risks.
• To the Legislative Department — to keep the statute book consistent in style and terminology, and to check that the Bill fits existing law, with consequential amendments and repeals.
• To the legislature — to prepare a text that members can understand and amend, with an honest Statement of Objects and Reasons and Memorandum regarding Delegated Legislation, and to draft official amendments at the committee and floor stages.
• To the public and the rule of law — to make the law knowable. Under the Pre-Legislative Consultation Policy (2014) drafts and explanatory notes are to be published for comment, which makes the drafter’s work visible to the people it will bind.

These duties can conflict. A department may want wide discretionary powers or a vague offence that will be easy to prosecute; the draftsman’s duty to the rule of law requires him to warn against both, even if the final decision is political.

4. The impact of constitutional values and provisions

• Competence. Every Bill must fall within an entry in the relevant List of the Seventh Schedule (Articles 245–246); State laws on Concurrent subjects that conflict with Central law need the President’s assent to prevail (Article 254(2)).
• Equality. Classifications must rest on an intelligible differentia with a rational nexus to the object, and the law must not be manifestly arbitrary (Article 14). The drafter should be able to state the reason for every class the Bill creates.
• Freedoms. Restrictions on the Article 19(1) freedoms must fit within the grounds in clauses (2) to (6) and be reasonable. Drafting a restriction in words wider than those grounds invites invalidity.
• Vagueness. A penal law must tell people with reasonable certainty what is forbidden. In Kartar Singh v. State of Punjab, 1994 INSC 112, the Court accepted that a vague law offends due process, and in Shreya Singhal v. Union of India, 2015 INSC 257, it struck down section 66A of the Information Technology Act, 2000 because terms such as “grossly offensive” and “menacing” were undefined, vague and overbroad. This is the clearest lesson for drafters in modern Indian law.
• Fair procedure. Any procedure that deprives a person of life or personal liberty must be fair, just and reasonable (Maneka Gandhi v. Union of India, 1978 INSC 16): hearing, reasons and appeal should be built in.
• No retrospective offences (Article 20(1)); money and financial Bills (Articles 109–110, 117) and the President’s recommendation; the language of the authoritative text (Article 348).
• Constitutional values more broadly — the Preamble’s justice, liberty, equality and fraternity, and the Directive Principles, which the drafter may cite in the Statement of Objects and Reasons and which courts use in interpretation.

5. The impact of the General Clauses Act, 1897

The General Clauses Act supplies definitions and rules that apply to every Central Act and regulation unless there is anything repugnant in the subject or context. States have their own General Clauses Acts. Its effect on drafting is that the drafter need not repeat what it already says, and must expressly exclude it where a different rule is wanted. The provisions most used:

• Section 3 — definitions of common terms (“person”, “month”, “financial year”, “good faith” and many others).
• Section 6 — the effect of repeal: unless a different intention appears, repeal does not revive anything not in force, affect anything done, or affect rights, liabilities, penalties and legal proceedings under the repealed law. A drafter who wants a different result must say so.
• Section 8 — references to a repealed enactment are read as references to the re-enacting provision.
• Section 10 — where the last day for an act falls on a day the court or office is closed, it may be done on the next working day.
• Section 13 — the masculine includes the feminine, and the singular the plural, unless the context requires otherwise.
• Section 14 — powers may be exercised from time to time as occasion requires.
• Section 21 — a power to issue notifications, orders, rules or bye-laws includes a power to add to, amend, vary or rescind them in the like manner.
• Section 24 — rules and orders under a repealed Act continue in force under the re-enacting Act so far as consistent with it.

6. The impact of the principles of interpretation

The drafter writes for the interpreter, and so must draft with the canons in mind.

• Presumptions — against retrospective operation, against ouster of the courts’ jurisdiction, in favour of mens rea in offences, strict construction of penal and taxing statutes. Departing from any of them needs clear words.
• Ejusdem generis and noscitur a sociis — a list of specific words followed by general words will be read narrowly. If the general words are meant to be wide, say so (“whether or not of the same kind”).
• “Means” and “includes” — an exhaustive and an extending definition; choose deliberately.
• Provisos, explanations and non obstante clauses — each has a settled judicial reading; use each only for its proper function.
• Consistency — courts presume that the same word has the same meaning throughout an Act, and that a change of word signals a change of meaning.
• Purpose and context — courts read the Act as a whole with its long title and Statement of Objects and Reasons (see the compromise approach in the interpretation note), so a clear statement of purpose helps the text to be read as intended.

How this is examined

Expect “Role, position and qualities of a legislative draftsman”, “Impact of constitutional provisions on legislative drafting” or “Impact of the General Clauses Act on drafting”. For the first, use sections 1–3 and end with the conflict of duties. For the second, use competence, Articles 14, 19, 20 and 21, and the vagueness cases (Kartar Singh, Shreya Singhal). For the third, name five or six sections with their effect on what the drafter writes.