LEGISLATIVE DRAFTING

PLAIN, BILINGUAL AND MULTILINGUAL DRAFTING

 INDIAN CONSTITUTION
BILINGUAL AND MULTILINGUAL DRAFTING
POWER TO DRAFT LEGISLATIONS AND STATUTES

• The power of legislative drafting depends

upon the subject on which law is being
drafted.

• In the Constitution of India, the power of

legislative drafting lies in Schedule VII which
provides 3 lists containing different subjects
on which the union and the state government
can make laws.

• The power of legislative drafting is also divided

between the union and the state governments
on the basis of subjects.

• For instance – the power to make laws on

currency and defense lies with union
government. Likewise, the power to make
laws on subjects like state taxes lies with
states.
Indian Constitution Recognises 22 Languages

• The 8th Schedule of the Indian Constitution identifies only 22 languages.

• These are Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani,

Malayalam, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Sindhi, Tamil,
Telugu, Urdu, Bodo, Santhali, Maithili and Dogri.
MULTILINGUAL LEGISLATIVE DRAFTING
WHY INDIA NEEDS IT?
NEED FOR MULTILINGUAL LEGISLATIONS IN INDIA

• India's linguistic and regional

diversity poses challenges in
drafting laws that are accessible to
all.

• For bilingual legislations, drafting

in both languages should be done
simultaneously to avoid translation
errors. For example, in India
legislations are drafted both in
Hindi and English.
 NEED FOR MULTILINGUAL LEGISLATIONS IN INDIA

Accessibility
Inclusivity

Lesser conflicts Far Reaching Audience

Communication is power Recognition to minorities

PROCESS OF LEGISLATIVE DRAFTING
BRIEF PROCESS OF LEGISLATIVE DRAFTING

END

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FORMULATION CONSULTATION DRAFTING INTRODUCTION ASSENT

Formulation of Consultations on Legislative The proposal is If the Bill is
the legislative the proposal with department introduced in assented by the
proposal and experts and drafts the the two houses President, it gets
policy by the stakeholders. proposed law of Parliament published in the
concerned and cabinet and debates official gazette of
ministry. note. take place. India.

START
ELEMENTS OF LEGISLATIVE DRAFTING
ELEMENTS OF A LEGISLATION - ILLUSTRATION
ELEMENT 1 – PREAMBLE OF THE LEGISLATION

• The Preamble of a legislation contains

its aims and objectives and is
therefore, part of the legislation.

• The preamble is mentioned on the

very first page of the legislation.

• Illustration – The Preamble of the

Bonded Labor Abolition Act reads “An
Act to provide for the abolition of
bonded labour system to prevent the
economic and physical exploitation of
the weaker sections of the people”.
ELEMENT 2 - STATEMENT OF PURPOSE

• The statement of purpose to be clear and

cogent.

• It should explain the substance of the legislation

and should clearly define its objective.

• Especially in case of social welfare legislations,

the statement of purpose should clearly state
the evil set out to be eradicated or the social
welfare goal and the target group.

Illustration – The statement of purpose of the Child

Marriage Prohibition Act is eradication of child marriage.
ELEMENT 3 - DEFINITIONS

• Definitions must be clear and precise.

• Must avoid using vague language and

expressions.
Clarit
y and p
recis • Must not give a meaning to a word which it
ion
ordinarily does not possess.

• Should be explanatory and purposeful.

ELEMENT 4 - CLAUSES

• Each clause should deal with one legislative

idea.

• Long and detailed clauses must be sub-divided.

• Cross-referencing must be used only when

necessary.

• Provisos must be avoided wherever possible. In

place of provisos, new clauses may be inserted.
 7Cs of LEGISLATIVE DRAFTING

Concise

• Clear and unambiguous language

leaves room for no misinterpretation. Certain Clear

• Consistency in the use of terminology

and language within the legislation is
essential. 7Cs of
Legislative
• Unnecessary repetition or duplication Drafting
Consisten Comprehe
of provisions to be eliminated. nsible
t

• Enabling readability by arranging

provisions in a manner that helps the
reader grasp the scheme of the
legislation. Complianc
Complete
e friendly
GUIDELINES FOR LEGISLATIVE DRAFTING
LANGUAGE GUIDELINES

• Archaic words - words that are no longer in everyday usage. For example.
“hereinafter”, “wherein”, “thereto”.

• Archaic English should not be used in any form.

• Vague words - certain words can be unclear and can be the source of frequent
litigation precisely because of their vagueness. For example. “endeavour”, “proper”,
“satisfactory”, “harm”.

• Use of vague words should be avoided.

• Foreign Words - foreign words, including Latin words, should be avoided. For example.
inter vivos (between living persons), mutatis mutandis (apply with necessary
modifications).
  
LANGUAGE GUIDELINES

• Use “must” in place of “shall” in case of mandatory obligations.

Use “may” whenever discretion of the use of powers is intended.
Use “will” for operation of law.

• While the Indian laws tend to use “shall” liberally, in different contexts, the word can
be understood to mean either “may”, “must” or “will”. To avoid confusion, the use of
the words “shall”, “may” or “will” must be used judiciously.

• Simple words - it is best to avoid unnecessary words and phrases, where fewer words
(sometimes no words at all) will convey the same meaning. For example. increase,
reduce or alter such limits (change such limits), in the manner contemplated in
(according to).
  
  
LANGUAGE GUIDELINES

• Preference should be given to simpler sentences with simpler words. For example: the
efficient discharge of its functions (efficiently perform its functions), by creating
awareness among the consumers and the industry (by making the consumers and the
industry aware of)

• Positive sentences must be treated as the rule, and negative sentences as the
exception, since the former are simpler to read.

• For example: No court shall take cognizance of any offence punishable under this Act
save on a complaint made by or under the authority of the appropriate Government (A
court may take cognizance of any offence punishable under this Act only on
complaints made or authorised by the appropriate Government).
 
  
LANGUAGE GUIDELINES

• Preference should be given to active voice instead of passive voice, since it

immediately brings the attention of the reader to the person who is responsible for
discharging the obligation.

• For example: An appeal filed before the High Court shall be heard by a Bench of not
less than two Judges of the High Court (A Bench of two or more Judges of the High
Court will hear an appeal filed before the High Court).
• The subject and predicate should be placed close together as it allows for instant
identification of the person who has to discharge an obligation, and the obligation to
be discharged.

• For example: The Executive Director may, if he is of the opinion that immediate action
is necessary on any matter, exercise any power conferred on any authority of the
Regional Centre by or under this Act (The Executive Director may exercise any power
conferred on any authority of the Regional Centre under this Act, if the Executive
Director believes that immediate action is necessary on any matter).
GENDER NEUTRALITY

• The General Clauses Act, 1897 states “words importing the masculine gender
shall be taken to include females”.

• However, gender-neutral drafting is now seen as the essence of the hour when it
comes to reforming legislative drafting.

• Usage of male pronouns should be avoided. Instead, the relevant noun can be
repeated.

• Words that end with “man” should be avoided. Such words can be replaced with
words ending with "person". For eg. chairman (chairperson).
USE OF ILLUSTRATIONS AND EXAMPLES

• Illustrations can provide context and help clarify the intended meaning. By
presenting specific instances or scenarios visually, it becomes easier for readers
to understand how the clause applies or excludes certain situations.

• For example – The Indian Penal Code, 1860 uses a plethora of illustrations in
order to explain the provisions in a comprehensive and easy to understand
manner.
POSSIBLE CHALLENGES SOLUTION

 Precedency of interpretation in languages.

 The need for representation from
 Disquiet in various communities. various stakeholders.

 The task of choosing languages for  Determining the precedency of

promulgating laws. lingual interpretation in the event of
ambiguity.
 The question of judicial interpretation.
 Codifying set of rules in case of
 The conundrum of different possible legal ambiguity in laws and interpretation.
outcomes.
 Ignorantia Juris Non Excusat
(Ignorance of law is not an excuse)

ADDRESSING IGNORANCE OF LAW:

• Introduction of principle-based regulation

• Expanding accessibility to all groups of society

• Removal of linguistic barriers

WAY FORWARD

• Assessment of impact of law on society and state

• Repealing of archaic and conflicting legislations