Report No. 14
31. Essentials-Adequate time; trained draftsmen.-
We are of the view that in the matter of preparing legislation two things are essential. Firstly, the proposed legislation should be well considered. For this purpose, sufficient time should be given to the draftsmen and the administrative officials to deliberate upon all its implications so that they may take into account all the possible circumstances and situations which ought to be provided for by the legislation. Secondly, our draftsmen should be well trained and should also be persons equipped with "wide knowledge and a great mastery of language". They should be capable of having a "precise conception of the objects desired and to express those objects in unambiguous phrases".
32. Preparation of Bills (Hasty drafting) (Inadequate instructions).-
The Government of India have recently issued a memorandum on the "Preparation and Passing of Bills". It contains detailed rules to be observed and instructions to be followed by the administrative Ministries with a view to ensuring that the draftsmen get adequate instructions, time and material for preparing the Bills. The first stage in the preparation of a Bill is the formulation of the legislative policy. This is a matter that has to be settled by the administrative Ministry in the light of administrative, financial, political and other considerations.
There has been a general complaint, very strongly voiced, at the recent Conference of All-India Draftsmen that the administrative Ministries seldom apply their minds in determining the legislative policy, and instead of giving precise instructions to the draftsmen, send sketchy notes, not clearly indicating the policy, and expect the draftsmen to draft the Bill within a short time for presentation to Parliament.
33. Legislative programme to be planned (Proper instructions to the draftsman).-
We are of the view that what is really needed is an adequate advance planning of the legislative programme. In emergencies, of course, legislation may have to be framed at short notice, but normally one should imagine that the expected programme of legislation would be settled at least a year ahead. We are informed that, in England, official draftsmen refuse to draft Bills if they are not mentioned in their scheduled list; and that the Government not infrequently has to request the members of the Bar to get their Bills drafted on payment of fabulous fee.1
If the programme of legislation is settled well in advance not only would greater opportunity be afforded for the proper consideration of the proposed legislation by the administrative Ministry, but it will also ensure all possible material facilities, instructions and advice being given to the draftsmen. A great deal depends upon the care and skill with which the draftsman is given instructions. He has to be given the whole of the legislative proposals in full detail and has to be acquainted with the complete background of the proposed legislation. Apart from the definite legislative policy, the draftsman should have ample time to discuss matters with the officials of the administrative Ministry concerned who should be readily available for consultation.
1. Proceeding of the All India Legal Draftsmen's Conference, February 1958.
34. Procedure in preparing legislation.-
We understand that the procedure at the Centre, when it is decided to undertake legislation, is as follows:
Matters involving legislation have to be first brought before the Cabinet for decision. If the Minister in charge of an administrative Ministry decides after consulting the Ministry of Law that legislation on any particular topic should be sponsored in Parliament, he causes a self-contained summary setting out the facts and the legislative measures proposed to be prepared. This summary is vetted in the Ministry of Law before submission to the Cabinet for approval. The summary is expected to be drafted in a manner so as to fully bring out the need for legislation and the implications of the proposed legislation.
If the Cabinet approves the proposed legislation, the Ministry which initiated the legislative proposal, prepares an office memorandum indicating sufficiently the grounds on which it has been decided to legislate. This memorandum is sent to the Ministry of Law for taking steps for drafting the Bill for introduction in Parliament. It appears that notwithstanding these rules, in a large number of cases such memoranda are not furnished to the draftsmen, possibly owing to the lack of trained officials in the administrative Ministries. The result is that the drafting of Bills is made very difficult. We believe that the procedure followed in the preparation of Bills in the States is similar. What we wish to emphasize is that to achieve better results, it is imperative that full and adequate instructions should be given to the draftsmen in time so as to enable them to do justice to their task.
35. Parliamentary amendments.-
When a Bill is before the Legislature, it frequently happens that the Government accepts amendments proposed by the members. Members of Parliament may not always realise the full legal implications of the amendments proposed by them. It is, therefore, necessary that such amendments, before they are finally accepted, should be thoroughly examined by the draftsmen who should not be hustled to produce drafts of such amendments at a moment's notice. Sufficient time should be given to the draftsmen to scrutinise them.
36. Circulation of Bills for eliciting opinion.-
We are also of the view that the drafts of all important Bills, unless they are urgent, should be circulated to the High Courts, Bar Associations and the interested members of the public for eliciting opinions.
37. Drafting in Pairs.-
We may also draw attention to a small but important step in the procedure of preparing a draft Bill. We understand that in England, draftsmen usually work in pairs. Working together they get an opportunity to discuss the draft each of them has prepared and to exchange ideas and to point out the errors or omissions, if any, in the drafts. We think this is a very useful practice which may be advantageously adopted in our country. It is bound to reduce errors and defects in drafting.
38. Training of draftsmen (School for drafting not feasible).-
The need for the training of our draftsmen cannot be over-estimated. Our draftsmen are daily being called upon to shoulder an ever-increasing burden. They are expected to have both imagination and clarity of thought and, as far as possible, some knowledge of the subject-matter with which they deal. They cannot, of course, be expected to be experts in every field of knowledge; but, whenever they are required to draft legislation concerning a technical subject, the concerned administrative officials are expected to instruct them suitably.
Nevertheless, it is necessary that the draftsmen should have the art and the requisite experience of stating the formal law in precise and unambiguous language, so as to bring out clearly the true intention of the legislature. Drafting is an art which is cultivated and acquired only after considerable experience of actual drafting. Initial training at the hands of experienced draftsmen is essential to the newcomer. We understand that this matter was discussed at the recently held All-India Conference of Draftsmen.
The conference considered two proposals in this regard namely, (1) starting of a training school for draftsmen and (2) the revival of the "attache system". It was suggested that if a school were started, junior draftsmen from States could be trained for a period of one or two years in the school under the guidance of some trained draftsmen. Such a scheme would, however, be very expensive, and we are not quite sure, if a suitable number of trainees could be spared by the States every year who could be usefully absorbed in the State service after training.
39. Another method: the attache system (Modifications).-
We think that the second alternative, viz., the "attache system" under which junior draftsmen from the States would be deputed to the Ministry of Law for training would be a less expensive measure. Normally, such training is given for six months. We are, however, of the view that such a short period is totally inadequate for imparting the requisite training to the States' draftsmen. The period of training should be longer, at least twelve months, and, during this period, the States' draftsmen should be asked to try their hand at drafting and to produce drafts of Bills under the guidance and instructions of senior draftsmen of the Union Government. We believe that a period of one year's intensive training in the Law Ministry, would greatly help in meeting the increasing needs of the States for trained draftsmen.
40. Training abroad.-
But the Law Ministry has itself to be adequately equipped with competent draftsmen who can do justice to the drafting of Union legislation, both substantive and delegated, and help to train draftsmen from the States. We suggest that arrangements be made by the Union Government to send their rising young draftsmen for training under the Parliamentary draftsmen in England.
It is true that the perfect statute has never been written and never will be. The utmost that a draftsman can do is, perhaps, to try to reduce doubts and ambiguities to a minimum. The success of the draftsman can be measured only the extent to which he achieves this end. We believe the measures which we have suggested will, to some extent, help him towards this goal.
41. Summary of recommendations.-
ur recommendations with regard to the periodical revision of law and the drafting of legislation can be summarised as follows:-
(1) There should be a permanent body or Commission at the Centre charged with the duty of periodically revising Central enactments in the light of developments in law and practice and for consolidating and remodeling them in the light of changed conditions and fresh legislation.
(2) If this work is to be properly done, this body should consist of fulltime members.
(3) Similar bodies should be established in the States for a similar purpose.
(4) Whenever Government proposes to undertake fresh legislation on a matter which is not emergent, it should refer the proposals for examination by the expert body whose establishment has been recommended.
(5) The legislative programme of the Government should be adequately planned in advance so that the draftsman is given sufficient time for preparing proper Bills.
(6) Generally, before important Bills are introduced, they should, unless they are of an emergent character, be circulated to the public, the courts and the Bar Associations for inviting criticisms and opinions.
(7) Full and adequate instructions should be given to the draftsmen before they are asked to draft Bills.
(8) As far as possible, the English practice of draftsmen working in pairs should be adopted in India.
(9) When amendments are moved and accepted in Parliament, the draftsmen should be given sufficient time for scrutinising and reshaping them.
(10) Delegated or subordinate legislation which is likely to prove difficult should also be referred to the permanent body of experts for prior scrutiny before being brought into force.
(11) Committees similar to the Committee of the Lok Sabha on subordinate legislation should be established in all States.
(12) Provisions similar to those contained in the English Statutory Instruments Act of 1946 should be incorporated in the General Clauses Act.
(13) Steps should be taken to ensure that the draftsmen at the Centre and in the States receive adequate training.
(14) Draftsmen in the States should be trained in the Law Ministry for a period of one year.
(15) Suitable draftsmen may be deputed by the Union Government to undergo training in England.