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Author(s): S. K. Hiranandani
Source: The Modern Law Review, Vol. 27, No. 1 (Jan., 1964), pp. 1-8
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1092253
Accessed: 18-07-2016 17:42 UTC
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Modern Law Review
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THE
27
lanuary
1964
No.
LEGISLATIVE DRAFTING: AN
INDIAN VIEW 1
1. Legislative drafting is a difficult art. It is the art of expressing
in concise and clear language the ideas of other people. It is
VPL. 27
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VOL. 2"7
about it? " In his Decline and Fall of the Roman Empire,
Gibbon has described the attitude of the Locrians to the legal
system. If a member of that community proposed an amendment
in the existing law, he had to stand forth in the Assembly with
a noose round his neck. " If the law was rejected," said Gibbon,
" the innovator was instantly strangled." To quote A. L. Goodhart: " There was, as we must all recognise today, considerable
sense in that procedure."
2. The draftsman of today is supposed to prepare the maximum
of laws within the minimum of time, to express the intention
of some anonymous, mythical person whose identity is not easily
established and to express that intention in language so clear
that not only a reasonable man understands but a malicious man
cannot misunderstand it. " It is essential," writes Montesquieu,
" that only such words should be used by the law-giver as are
bound to produce the same notions in the minds of all men. "
Here is a task for a superman. I do not, for a moment, suggest
that draftsmen are infallible persons who never make mistakes.
Draftsmen often make mistakes for which no one but they can be
blamed. What I want to emphasise is that a draftsman per-
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JAN. 1964
LEGISLATIVE DRAFTING
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voLe
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JAN. 1964!
LEGISLATIVE DRAFTING
words " shall not take effect," " no such alteration shall have
any operation " and " become absolutely null and void " which
all mean the same thing. The Elections Act of Canada provides
that:
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VOL. 27
are mlnlmlsec .
12. If a draft Bill is referred to a Select Committee, the draftsman before attending meetings of the Select Committee should
go through all relevant papers to refresh his mind since a long
interval usually elapses between the preparation of a Bill and
its discussion in a Select Committee. He should not rely upon
his memory. He should study all the opinions given in connection
with the draft Bill and give the draft Bill itself a thorough reading.
His grasp over the draft Bill should be so thorough that he should
be able to explain all the points that may be raised in the Select
Committee. A draftsman should not place himself in the predicament which confronted Browning who, when asked what his
poem " Sordello " meant, replied: " When I wrote ' Sordello,'
God and I knew what it meant; now only God knows."
13. Particular care should be taken in drafting financial
statutes. Any mistake in such statutes may involve the Government in a loss of considerable revenue. The following illustration
indicates how a mistake in a financial statute can be expensive.
Section 8 6 Of the Bengal Court Fees (Amendment) Act, 1922,
substituted article 12 of the principal Act and the substituted
article read as follows:
When the amount or value of Two per centum on such amount
any debt or security specified in or value and three per centum on
the certificate under section 8 of the amount or value of any debt
the Act exceeds one thousand or security to which the certificate
rupees, but does not exceed ten is extended under section 10 of the
thousand
rupees,
Act.
and
When such amount or value Three per centum on such amount
exceeds ten thousand rupees, but or value and four-and-a-half per
does not exceed fifty thousand centum on the amount or value of
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JAN. 1964
LEGISLATIVE DRAF1sING
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1EE
MODERN
LAW
REVIEW
VOL.
27
S . K . HIRANANDANI . *
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