Drafting A Bill
DRAFTING A BILL
INTRODUCTION
A Bill is a draft statute which becomes law after it is passed by both the Houses of Parliament and assented to by the President. All legislative proposals are brought before Parliament in the forms of Bills[1], that is the importance of Bill in our country. A legislation or statue is the formal expression in writing of the will of the legislature, which expresses the collective will of Parliament or the legislative body of the country[2].
TYPES OF BILLS
Bills may be broadly classified into:
o Government Bills, and;
o Private Members’ Bills
This depending upon their initiation in the House by a Minister or by a Private Member.
Content wise, Bills are further classified into:
o Original Bills - which embody new proposals, ideas or policies,
o Amending Bills - which seek to modify, amend or revise existing Acts,
o Consolidating Bills - which seek to consolidate existing law/enactments on a particular subject,
o Expiring Laws (Continuance) Bills - which seek to continue Acts which, otherwise, would expire on a specified date,
o Repealing and Amending Bill - to cleanse the Statute Book,
o Validating Acts - to give validity to certain actions,
o Bills to replace Ordinances,
o Money and Financial Bills, and
o Constitution Amendment Bills.
Procedurally, the Bills are classified as:
o Ordinary Bills
o Money Bills and Financial Bills
o Ordinance Replacing Bills and
o Constitution Amendment Bills
HOW A BILL BECOMES AN ACT
Following are the steps followed for making Bill an Act:
· A Bill undergoes three readings in each House of Parliament.
o The First Reading consists of the Introduction of a Bill. The Bill is introduced after adoption of a motion for leave to introduce a Bill in either of the House.
With the setting up of the Department-related Parliamentary Standing Committees, invariably all Bills, barring Ordinance replacing Bills; Bills of innocuous nature and Money Bills, are referred to the these Committees for examination and report within three months.
o The next stage of a Bill i.e., the Second Reading start only after the Committee summits its report on the Bill to the Houses. The Second Reading consists of two stages:
§ the ‘first stage’ consists of discussion on the principles of the Bill and its provisions generally on any of the following motions:
that the Bill be taken into consideration; that the Bill be referred to a Select Committee of the Rajya Sabha; that the Bill be referred to a Joint Committee of the Houses with the concurrence of the Lok Sabha; that it be circulated for the purpose of eliciting opinion thereon; and
§ The ‘second stage’ signifies the clause-by-clause consideration of the Bill as introduced or as reported by the Select/Joint Committee. Amendments given by members to various clauses are moved at this stage.
o The Third Reading refers to the discussion on the motion that the Bill (or the Bill as amended) be passed or returned (to the Lok Sabha, in the case of a Money Bill) wherein the arguments are based against or in favor of the Bill. After a Bill has been passed by one House, it is sent to the other House where it goes through the same procedure. However the Bill is not again introduced in the other House, it is laid on the Table of the other House which constitutes its first reading there.
· After a Bill has been passed by both Houses, it is presented to the President for his assent. The President can assent or withhold his assent to a Bill or he can return a Bill, other than a Money Bill, for reconsideration. If the Bill is again passed by the Houses, with or without amendment made by the President, he shall not withhold assent there from. But, when a Bill amending the Constitution passed by each House with the requisite majority is presented to the President, he shall give his assent thereto.
· A Bill becomes an Act of Parliament after being passed by both the Houses of Parliament and assented to by the President.
MAIN PARTS OF LEGISLATION
Legislation consists of the following main parts:-
1. Long title
2. Preamble
3. Short title
4. Chapters
5. Headings
6. Definition or interpretation clause
7. Marginal notes
8. Section, sub-sections and clauses
9. Proviso and Exceptions
10. Explanation and Illustrations
11. Schedules and forms
Now we will discuss each point in detail.
THE LONG TITLE
In the case of Manoharlal v. State of Punjab[3], It denotes the principal purpose of the Act, for which it is enacted but it cannot control the express provisions contained in the operative contained in the operative portion or chapters or sections of the Act. The long title represents the subject matter of the Act, for example, The Indian Contract Act, 1872 as the long title suggests, the Act is related to Contract.
The long title helps to resolve ambiguity in the Act but will not limit the plain meaning of the text of the Act[4]. Every Act begins with a long title; its function id to indicate the general purpose of the Act. It is a part of the Act, being considered. Enacted and also amended by the legislature. Thus basically long title presents an opportunity to the drafter to say in plain terms the intention behind the Act.
For example: An act to provide for the more effective prevention of the commission of the sati and its glorification and matters connected therewith or incidental thereto. [The Commission of Sati (Prevention) Act, 1987].
In drafting a long title, vagueness and looseness of expression should be avoided so far, as is compatible with the need to generalize. The expression ‘etc.’ should not be used, nor should loose reference be made without qualification to ‘other matter’ or ‘other purposes’. In his book Legislative Drafting by B.R. ATRE, he stated that- ‘The drafter should finalize the long title only after he completes the draft of the legislation so that he could coin the appropriate long title pinpointing the subject-matter of the Bill as the principal object of the Bill[5].
PREAMBLE
The preamble of the Act is a recital wherein the object, intent and purpose of the Act are given. In other words, preamble contains narration of facts or the state of law which it is proposed to legislate under the Statue, the objects and the policy of the legislation and the evils and inconvenience it seeks to remedy.[6] The preamble is a key to open the mind if the legislature, but it cannot be used to control or qualify the precise and unambiguous language of the Act. Preamble and the long title both must properly express the subject-matter of the legislation. Otherwise, it will lead to confusion and difficulty in pinpointing the subject-matter for which the statue has been enacted.
The Traditional function of a Preamble is to explain the object of an Act or to explain the reasons why its enactment is considered desirable. Present day practice discloses that the Preamble is used in 4 legislative areas, -
a. Where the subject-matter of the legislation is of constitutional or international importance;
b. Where the legislation is of a formal or ceremonial character, intended to mark a noteworthy event such as the death of a statesman, a royal visit or the anniversary of a historic occasion;
c. Where the legislation is or is akin to private or local enactment, being intended to remedy an exceptional local problem of such complexity that an explanatory Preamble is necessary to an understanding of the Act; and
d. Where the purpose of the legislation is to rectify or otherwise approve an agreement entered into or intended to enter into by the Government.
For the following purposes Preamble is used:
1. They indicate in general terms the purpose or the object of the Act.[7]
2. They cannot be invoked to determine the vires of the Act.[8]
3. Enacting words of the statue may be carried beyond the Preamble/Long title if they are strong enough for the purpose.[9]
4. Subsequent amendments making radical changes in the Act should be given effect to even though Preamble remains unamended.[10]
SHORT TITLE
As a rule, every act of Parliament must have a short title, ending with the year in which it was passed. The short title is given to the Act solely for the purpose of facilitating the reference to the Act.
Section 28 of the General Clauses Act, 1897 lays down that an Act or regulation may be cited by reference to the title or short title (if any) conferred thereon.
Example: NDPS Act, 1985 is short for The Narcotics Drugs and Psychotropic Substances Act, 1985.
POCSO Act is short for Protection of Children from Sexual Offences Act
CHAPTERS OR PARTS
An Act is divided into different chapters or parts for the sake of clarity. Every drafter must, therefore, give full consideration in arranging the subject-matter of the Act into different chapters, each chapter clearly providing for one single object or aspect of the legislation.
In Murlidhar v. State of Maharashtra[11], the Supreme Court has observed that it is unfortunate that easy comprehensibility and simplicity for the clarity are discarded sometimes through over sophisticated scholarship in the art of drawing up legislative Bills. It cannot be overstressed that new orientation for drafting methodology adopting directness of language and avoiding involved reference and obscurity is overdue.
A comprehensive example of this division of Chapters & Parts is the Code of Criminal Procedure, 1973. The Code contains 484 sections and lays down the details of the criminal Procedure for the Criminal Court. The Act is divided into 38 chapters and the heading of these chapters clearly indicate the matters that are dealt in the respective chapter. The idea is that the each chapter and its heading give us a clear idea about the chapter and what purposes to deal with. In order to bring further clarity, these chapters are further divided into Parts.
For Example: Chapter VI of Cr.P.C deals with “Processes to compel appearances”, this is further divided into 4 Parts –
A – Summons
B- Warrant of arrest
C –Proclamation and attachment
D – Other rules regarding processes
The drafter should always keep in the mind the aspects of the clarity and simplicity in drafting the legislation because lack of simplicity leads to complexity and ambiguity in legislation and encounter difficulties in interpretation.
HEADINGS
Headings to chapters, parts or set of sections are Preamble to those chapters, parts or sections. The headings are given to reader an idea or information as to what the chapter or set of sections are to deal with. They normally are pointer to the contents of the chapter or part. In the case of doubt heading help to resolve doubts, such occasions are extremely rare.[12]
DEFINITION OR INTERPRETATION CLAUSE
By defining certain important and often occurring words and phrases in the Act the drafter can bring the textual simplicity to the Act. It is for this reason it is a common practice to define the words very often used in the statue book and to place such definitions in a general interpretation statue. Apart from the General Interpretation Statue every Act contains a definition or interpretation clause, whereby a particular word or phrase is defined narrowing, restricting or expanding its ordinary meaning for the purpose of the Act in question. The important point to note here is that the definition clause shall be construed in accordance with the intent of the Legislature which has passed it and in case of ambiguity or lacuna in the definition clause the word defined in the definition clause of the Act is substituting for the defined word wherever it occurs in the Act.
Definitions of words and expressions should only be included in an Interpretation Act, if they –
1. Are genuinely of general application to a reasonably broad range of legislation, and
2. Conform to the criteria applicable to all statutory definitions.
“Unless the contrary intention appears” or “unless the context otherwise requires”- These 2 expression approximate in the meaning and are, in fact, declaratory of the common law for in Mense v. Jacobs,[13] Lord Salborne held that an interpretation clause applied only in the absence of something repugnant in the context or in the sense.
To further clarify drafter should insert an Explanation to avoid the confusion. It is therefore essential for the drafter to understand the background meaning of the words and phrases given to them by the trade and commerce while defining them in the statute related to trade and commerce.
The drafter must take note of following rules in respect of definitions:-
1. It is a settled principal of law that if a term stands defined in the Act, the said terms are to be given the same meaning whenever it is needed in the Act unless the contrary intention is expressed.[14]
2. The drafter must see that the definition adopted in the legislation is out of context.
3. It is also the duty of drafter to see that the definitions inserted in the legislation are not arbitrary and result in unreasonable qualifications or are uncertain.
4. In a Bill, a definition is useful in order to avoid repetition or ambiguity. The definition of an express should not be c contrary to its everyday meaning.
MARGINAL NOTES
The object of marginal note to section is to give clear indication of the contents of a section. It must be precise and accurate. It must describe the contents but should not attempt to summarize and should be brief and to the point. Marginal Note or heading to section or chapter indicates the subject-matter, which has been dealt with in that section or the chapter. It basically denotes the drifts of the section. It normally has no role play in the interpretation of the section. It normally has no role to play in interpretation of the section. Still the drafter should be careful in coining the marginal notes as they instantly provide a clue to the reader about the subject that is the concern of the section. In the words of Patanjali Shastri J. “Marginal notes in an Indian Statue as in an Act of Parliament cannot be referred to for the purpose of construing the statue. Nor can the title of a chapter be legitimately be used to restrict the plain meaning of the enactment.[15]
In S.P. Gupta v. President of India[16]. The SC held that ‘whether the marginal notes would be useful to interpret the provisions and if so to what extent depend upon the circumstances of each case. No settled principles applicable to all cases can be laid down in this fluctuating state of the law as to the degree of importance to be attached to a marginal notes in a statute. If the relevant provisions in the body of the statute firmly point towards a construction, which would, conflict with the marginal notes, the marginal notes has to yield. If there is any ambiguity in the meaning of the provisions in the body of the statutes, the marginal notes may be looked into as an aid to construction”.
SECTIONS, SUB-SECTIONS & CLAUSES
The chapters or parts of an Act are further divided into individuals sections. The section is further divided into sub-sections and clauses. A section is a substantive and an important part of an Act. Sections are drafted keeping in view the continuity of the subject dealt with in an Act. The drafter while drafting a section must take care that it should not be too long and if it is, it is necessary to divide it further in the sub-section. Sections constitute the principal or enacting part of the statute. Every section of a statute is substantive enactment itself. A section must have only 1 interpretation and one scope.[17] “It is an elementary rule”, says Subbarao J. “that construction of a section is to be made of all the parts together and that it is not permissible to omit any part of it.” Sub-section in a section must, therefore, be read as part of an integral whole and as being interdependent, each portion throwing light, if need be, on the rest, and harmonious construction should be placed on them for the purpose of giving effect to the legislative intent and object.
PROVISO
A proviso to a section is an exception to something within the main section and is in the nature of a qualification which but for the proviso would within the purview of the section. A proviso therefore cannot be torn apart from the main provision nor can it be used to nullify or set at naught the real subject of the main section. The drafter must take a note that the proviso is used to remove the special cases from the general section and provide for them separately.
So generally speaking a proviso is used to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause or section. The proviso is used for the following 4 purposes:-
1. To qualify or except certain provisions for the main section.[18]
2. To entirely change the very concept or the intendment of the section by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable.[19]
3. It may be so imbedded in the section itself so as to become an integral part of it and thus acquire the tenor and color of the substantive enactment itself; and[20]
4. It may be used merely to act as optional agenda to the section with the sole objective of explaining the real objective of explaining the real object of the statutory provision.[21]
However, the proper function of the proviso is to except or qualify something enacted in the substantive section; which but for the proviso would be within that section.[22]
EXPLANATIONS & ILLLUSTRATIONS
The purpose of an explanation is to explain certain words, phrases or some aspect or concept of the main provision. The object behind the Explanation is,-
1. To explain the meaning and intention of the main provision;
2. Where there is obscurity or vagueness in the main enactment, to classify the same so as to make it consistent with the dominant object which it seeks to sub serve;
3. To provide an additional support to the dominant object in the main statute in order to make it meaningful and purposeful;
4. Where some gap is left which is relevant for the purpose of the explanation in order to suppress the mischief and advance the object of the Act, the explanation can help or assist the court in interpreting the true purport and object of the enactment; and
5. It cannot take away statutory right with which any person under a statute has been clothed, or set at nought the working of an Act by becoming a hindrance in the Interpretation of the same.
An explanation serves to make plain, intelligible and clear from obscurity something, which may arise from the section. The Supreme Court had observed that “It is well-settled that the Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain to clarify certain ambiguities which may have crept in the statutory provisions”.[23]
For Example -Explanations are used to explain the main provisions like section 53 of Cr. P. C which lays down the procedure for examination of accused by the registered medical practitioners at the request of a police officer.
Adding an explanation is not a simple task, the drafter will have to use all his experience, skill and knowledge of the subject while adding an Explanation to section.
ILLUSTRATIONS also serves the same purpose as that of the Explanation. An illustration to a statutory provision merely illustrates a principal and cannot be exhaustive. It illustrates the true scope and ambit of the section and has to be read subject to the relevant provision itself. So where the main provision imposed a tax in regard to transaction between consideration transactions between other persons.
For Example: Illustrations to section 101 and 115 of the Evidence Act, 1872 are the fitting examples of how the main provision has been appropriately explained.
SCHEDULES & FORMS
SCHEDULE to an Act is a mere question of drafting and is attached to the Act to avoid unnecessary bulkiness. To simplify the presentation of an Act its subject-matter is divided into chapters, sections and schedules. Section set out the matters of principal and latter contain matters of details. This is purely a matter of arrangement and the schedule may be used in construing the main provisions contained in the body of the Act. However, expressions in the Schedule cannot control the express provisions of the statute.[24] The Act and the schedules thereto are part of the Act as enacted by Parliament and had to be taken judicial notice accordingly by the courts.
For Example: The NDPS Act, 1985, Cr. P. C Act, 1973 and even the Constitution of India, 1947.
FORMS attached or inserted in the Act are merely example and are to be followed implicitly depending upon the wording and the circumstances of each Act. The forms normally prescribe the prescribed language and format in which an application or any return etc., is to be filed or submitted.
For Example: II Schedule of the Cr. P. C, 1973 contains about 56 Forms. Section 61 of the code prescribes Form No. 1 in which the summons to an accused person is to be issued.
*Disclaimer: The contents of the blog are not intended to convey any legal advice to the reader neither the blog creates any attorney-client relationship. You may contact an enrolled legal practitioner for assistance with your legal needs.*
[1]See Legislative Functions of Rajya Sabha, available at: http://rajyasabha.nic.in/rsnew/legislation/introduction.asp
[3] AIR 1961 SC 418: (1961) 1 Cr LJ 570: 1961 (2) SCR 343: 1962 (1) SCA 265.
[4] Federal Trade Commissioner v. Additional Collector, Bilaspur, 1989 MPLJ 58: 1989 Jab LJ 245.
[6] In Re Barubari Union, AIR 1960 SC 845 (864): 1960 SCJ 933: 1961 (1) SCA 22: 1960 (3) SCR 250.
[8] Ibid.
[9] Ibid.
[10] Motipur Zamindari Co. Pvt. Ltd. v. State of Bihar, AIR 1962 SC 660: 1962 (2) SCJ 288: ILR 1962 41 Pat 690.
[11] 1977 (1) SCR 1:1976 Cr LJ 1527: (1976) 3 SCC 689: AIR 1976 SC 1929.
[12] Bhinka v. Charan Singh, AIR 1959 SC 960: 1959 Cr LJ 1223: 1960 SCJ 892: 1959 All LJ 557.
[13] (1875) LR 7 HL 401 (493).
[14] Shyam Vir Singh v. State of Uttar Pradesh, 1978 All WC 263.
[15] Comm. Of Income-tax, Bombay v. Ahemedbhai Umarbhai & Co., Bombay
[16] AIR 11982 SC 149: 1982 Rajdhani LR 389: 1981 Supp SCC 87.
[17] R. Venkatswami Naidu v. Narasram Naraindas, AIR 1966 SC 361: 1966 (1) SCA 113: 1966 (1) SCR 110.
[18] S. Sunderan Pillai v. V. R. Pattabhiranaman AIR 1985 SC 582: 1985 (98) Mad LW 49: (1985) 1 SCC 591.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, AIR 1966 SC 459: 1966 (1) SCA 718: 1966 (1) SCR 367: 19667 (1) SCJ 41.
[23] Sunderam Pilllai v. Pattabhiraman, AIR 1985 SC 582: (1985) 1 SCC 591: 1985 (98) Mad LW 49.
[24] Aphali Pharamaceuticals Ltd. v. State of Maharashtra AIR 1989 SC 2227: 1989 4 SCC 378: 1989 (2) SCALE 617: JT 1989 (3) SC 720
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