Module III: Legislative Drafts Structure & the Preamble

Legislative Drafting

(Submission of the assignment for/to the Himachal Pradesh National Law University)

Course Co-ordination: Dr. Girjesh Shukla

Submitted by: Sanchay (enrolment no. 1120192038)

Himachal Pradesh National Law University, Shimla

16 Mile, Shimla-Mandi National Highway, Ghandal

District Shimla, Himachal Pradesh- 171014

Ph. 0177-2779802, 0177- 2779803, Fax- 0177-2779802

Website- http://hpnlu.ac.in

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 Acknowledgment-

“If we desire the respect for law, we must first make the law respectable.” - Louis D. Brandeis

This project is the fruit and flower blooming out of the guidance and instructions provided to me
by our academic supervisor, Dr. Girjesh Shukla, to whom I humbly and sincerely devote part of
my efforts for the project as well as gratitude. The efforts from the respected mentor included
instructions for formatting the project, circulation of resources and lastly, spoof reading for the
project.

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 Declaration

It is, hereby, declared that the assignment titled “Legislative Drafting” is being submitted to H.P
National Law University, Shimla under the kind guidance of Dr. Girjesh Shukla, Associate
Professor at H.P National Law University. This assignment is for the purpose to fulfill the partial
requirements of grading for the subject “Legislative Drafting”. It is also declared that the work,
here, produced is the sole work of the author and all the sources referred by the author are duly
given the credits.

This assignment is the fresh piece of work and has not been published or given for publication
elsewhere. This assignment discusses on the settled position of stages of legislative drafting in
India and in no way wishes to point or challenge the government or any other authorities in their
field of work. It was solely for the purpose of analyzing the process. This assignment is author’s
responsibility and if anyone, in case, raises the issue of the originality of the assignment, then the
author will be solely responsible to clarify the same.

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Table of Contents-

I. Introduction

II. Understanding Legislative Drafting in brief

III. Research problem: Examining place value and face value of a preamble in a legislature.

IV. Research questions:

A. What is preamble in a legislative structure in general?

B. What is the significance of the preamble?

V. Objectives: Understanding the patterns and writings in.

VI. Significance of the Study

VII.Research Methodology

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RESEARCH PROBLEM

-Examining place value and face value of a preamble in a legislature.

RESEARCH QUESTIONS

1. What is preamble in a legislative structure? Examining by various statutes.

2. What is the significance of preamble?

OBJECTIVES

• To understand the preamble and its relevance in the statutes.

• To examine the preamble through judgments of the judicial corpus.
• To understand the preamble in a specific act.

SIGNIFICANCE OF THE STUDY

RESEARCH METHODOLOGY

The research methodology used in the following research is completely doctrinal and the data
used is secondary in nature.

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 Introduction

Legislative Drafting is a relatively new subject despite having older roots. From many jurists, it
is referred as an art. It actually is art, to put the right words at right places so that the reader
makes the sense of it, the statute wants to. As a profession, a legislator or a lawmaker is
concerned with the art so that whenever this art is interpreted, no injustice is done. Bentham is
considered to be the father of modern legislative drafting. According to him, legislation is a
science. Legislative drafting is an expression of ideas, with concise and clear meaning. What
does a legislature actually conveys? The answer lies in the question and it is- Legislature, or as I
might call it, the rule of the law. Without this rule of law and with misinterpretation of these
rules, the stand point of just seems far.

A preamble is a part of the corpus of a statute. As stated above, the intent of having a
preamble is to show the intent of having a statute. With this, a law escapes the loopholes, if any,
to convey the laws to the readers. The avoidance of errors in a statute is must, and this is solved
through outputting the basic intent of the law itself. Of course a statute is amendable, but with
amendments the provisions and policies of the law also vary. With presence of the preamble, this
variation is adjusted. In the above paragraph, we mentioned the rule of the law. By legislature,
the governing bodies express their rules and with the addition of preamble, at least in India, the
intent to carry the rule is transferred to the acknowledgment of the reader.

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 Preamble in Legislative Structure

The disciple of legislative drafting is an artistic one. Legislative drafting like any other
method of legal drafting, is a mode of communication in an institutionalized manner.1 Bentham’s
work may be considered as the starting points of works on Legislative Drafting which has
seemingly popularized in the modern times. Legislative Drafting is a difficult art.2 This disciple
requires concise and understandable interpretations and expressions of other’s ideas. A
legislature can be brought in from different sources, but a ‘statute’ is considered, in modern days,
the primary source of legislation. Salmond states, “By interpretation or construction is meant,
the process by which the courts seek to ascertain the meaning of the legislature through the
medium of authoritative forms in which it is expressed”.3 Rules and Aids, both are put into work
in interpretation of statutes. This was confirmed by the Supreme Court in the case of K.P.
Varghese v. Income Tax Officer, Ernakulam.4 From the meanings from Black’s Law Dictionary5,
a statute is a formal codified enactment of legislative corpus that administers a state or a province
or a territory. The statute, by far the most, has been the most important source of law in common
law nations from at least two centuries. The statute also, reflects the law in it by two methods,
namely- Internal aids and external aids. An aid, from the literal English meaning defines
assistance. In a statute, an aid is device for construction and interpretation of the law itself.
Internal aids are those materials of a statute which derive the definition from the internal
structure of the text.

1 Legisla6ve Dra7ing (h:ps://www.linkedin.com/pulse/legisla6ve-dra7ing-onyekachi-duru-esq) visited on

04-06-2020 at 15:05.

2 Ilbert, "Mechanics of law-making" campentri lectures, Columbia University, Press p. 94. (1914).

3 Aids to interpreta6on of statutes (h:p://law6mesjournal.in/aids-to-interpreta6on-of-statutes/) visited on

04-06-2020 at 15:45.

4 AIR 1981 SC 1922.

5 Black’s Law Dic6onary for ‘statute’.

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 The Preamble falls under the ambit of Internal Aid along with the Preliminaries of the
long title, short title, marginal notes, illustrations, proviso, definitions, interpretation clauses,
schedules, and punctuations.6 While using the internal aids to interpret the statute involves
scrutinizing the law that so the gets extracted from the composition of the law. Internal aids can
be defined as a material which is published in a bill but not as provisions of the bill.

The general structure of an internal aid follows the arrangement order commencing from- Title,
short title, long title, limitations to the title, preamble, marginal notes, limitations of marginal
notes, headings, and limitations of headings, saving clauses, schedules and punctuations.
According to Montesquieu7, when a legislator condescends to give a reason for his law, it should
by worthy of its majesty.

The preamble is followed down after the long title around which a mass of case-law has
grown.8 Rajgopal states that the preamble is a redundancy which can be safely terminated in
most of the cases.9 The earlier preambles are stated to be ‘a mere repetition of the long titles’
based on the preamble of Indian Succession Act (Act 39 of 1925), Reformatory Schools Act (Act
8 of 1897), etc. For elaboration10-

• Indian Successions Act (1925) long title-

"An Act to consolidate the law applicable to intestate and testamentary

succession.”

6 Id note 3.

7 Charles de Montesquieu, Book xxix of the Manner of Composing Laws, para16.

8 Rajgopal on Dra7ing of Laws, Page 40.

9 Id.

10 Id.

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 Preamble-
"Whereas it is expedient to consolidate the law applicable to inte-state and
testamentary succession"

• Reformatory Schools Act (1897) long title-

“An Act to amend the law relating to Reformatory Schools and to make further

provisions for dealing with youthful offenders”

Preamble-
"Whereas it is expedient to amend the law relating to Reformatory Schools and to
make further provisions for dealing with youthful offenders"

In the above examples, the preamble is more likely representing an excessive and non-
essential matter. Dr. Rajgopal11 and Dr.T.K. Vishwanathan12, in their publications state that they
feel as if the legislature is expressing hesitance and apology while passing the bill.

Also by observing the structures of Preamble, the earlier preambles (Preambles drafted
before the independence 1947) are more of a ‘lazy draft’ as majority of them has the similar
codifications styles. For example-
• Indian Contracts Act13 (1872)-
“WHEREAS it is expedient to define and amend certain parts of law relating to
contracts;”

• Indian Penal Code14 (1860)-

11 Supra page 41.

12 Legisla6ve Dra7ing: Shaping the Law for the new millennium, Page 164.

13 ACT 1X OF 1872.
14 ACT 45 OF 1860.

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 “WHEREAS it is expedient to provide a general Penal Code for 2 [India]; It is
enacted as follows;”
2 The words “British India” have successively been subs. by the A.O. 1948, the
A.O. 1950 and Act 3 of 1951, s. 3 and the Sch., to read as above.

The above examples, along with many other acts of before the independence, the preambles
seem to be commencing a certain and common phrase – “Whereas it is expedient…” The loose
meaning of the phrase seems to be gathering up all the inclusions of the act which loosely and
separately exist, in one statute. After the above mentioned phrase- the preamble seems to be
describing the general intent of the statute with no enactments of the law howsoever. By calling
the preambles a ‘lazy draft’ it is meant to imply that these statues followed a similar draft pattern
for the preamble with just an addition of intent. Dr. Rajgopal15 and Dr. T.K. Vishwanthan16
(While agreeing to Symonds) suggest that it would be better if the preamble is given up as the
intent it serves to provide might as well be included in the long title.

On the other hand, this (The lazy draft) is not true for a few other preambles of before the
independence and many more preambles after the independence. For example, a preamble which
is less vulnerable to attack by detailing the background to the enactment by recitals.17 For
example-
Iron and Steel Companies Amalgamation Act18 (Act 79 of 1952)-

"An Act to make special provision in the interests of the general public and the Union, for
the amalgamation of certain companies closely connected with each other in the

15 Ibid note 10.

16 Ibid note 11.

17 Supra note 10 page 41.

18 Iron and Steel Companies Amalgama6on act, 1952 (Act 79 of 1952).

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 manufacture and production of iron and steel, and for matters connected there with or
incidental thereto." (Long Title).19

"Whereas for the purpose of securing in the interest of the general public and the Union,
the efficient and economical expansion and working of the iron and steel industry in
India, it is essential that the Steel Corporation of Bengal, Limited and the Indian Iron and
Steel Company, Limited, which are engaged in the manufacture and production of iron
and steel, should be amalgamated;
And whereas to give effect to the scheme of the Central Government for the
expansion of the iron and steel industry and to make available further resources for such
expansion, it is necessary that the said companies should be amalgamated with as little
delay as possible;

And whereas the amalgamation of the said companies is also in pursuance of successive
recommendations made by the Tariff Board and the Tariff Commission". (Preamble)20

The above preamble succeeds in providing a clearer and detailed intent of the statute, still
with no enactment of the statute. Preambles are very efficient when the statute is subject to
changes and modifications as it keeps holding the intent to decrease the chances of the ambiguity
from the changing provisions of the statute. But whenever the statute is not subject to changes, it
is believed, followed that presence of the preamble is not needed. For example- The Surrogacy
(Regulation) Act, 202021 which has no preamble in it. The preamble has already been given up in
countries of United Kingdom, Canada and Australia, all being commonwealth nations. This view

19 Id.

20 Id.

21 Surrogacy (Regula6on) Act, 2020.

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is also endorsed by Symonds as he suggests that preambles should be more occasional, only
when the ambiguity errors are to be handled in amending statues.22

The preamble is followed by the Enacting Formula, if any, else by Short title. Preamble,
from perspective of many jurists is a case of argument of whether it should be given up or
remains documented in a statute. In certain cases, it aids in balancing the non-ambiguous nature
of a statute and in other cases, it is just an expansion of words which may be included in other
internal aids of the statute, to declare the intent of the statute. In both ways, no provision is
enacted through the Preamble.

Study upon the Significance of Preamble

Despite the arguments of authors and jurists over the necessity of preamble, this section tries to
provide more light over the judicial precedents relating to the preamble of statutes. This section
aims to understand the observations made in a few cases regarding the mechanism of preamble.

In Maharishi Mahesh Yogi Vedic Vidyapeeth v. State of M.P.23 it was held that there is no resort
for the court to the preamble when the language of the statute has succeeded in conveying its
clarity and non-ambiguity. It is therefore evident that the court here has rejected the idea of using
the preamble as the source of legislation when the statute is competent to be source of
legislation. Similarly in Burrakar Coal Company ltd. v. Union of India24 it was observed that the
preamble cannot distort with the clarity of the intention of the law.25 In Re Kerela Education Bill

22 Arthur Symonds, The mechanics of lawmaking, 26(1835) as cited in The Indian Law Ins6tute, LEGISLATIVE
DRAFTING: SHAPING THE LAW FOR THE NEW MILLENIUM (ILI, New Delhi, 2007) at page 162.

23 AIR (2013) 15 SCC 677.

24 AIR 1961 SC 954.

25 Internal Aids to Construc6on (h:ps://blog.ipleaders.in/internal-aids-to-construc6on/) visited on 04-06-2020 at

23:54.

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195726 it was observed held that derivation of policy and purpose of the law can be derived from
its preamble. In Rashtriya Mill Mazdoor Sangh v. N.T.C. (South Maharashtra)27 the Supreme
Court observed that if the language of the statute is clear, the preamble cannot curtail or limit the
scope of discharge.
The judicial systems seem to have assented to the idea of not enacting the preamble
unless the error in the language of statute has been detected. The reason, as from the observations
of the court match with those of the authors.28 However, the courts still hold the idea of using the
preamble as the source of legislation in cases of any kind of ambiguity within the statute.

A study upon the preamble to the Environment (Protection) Act, 198629

“WHEREAS the decisions were taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, in which India participated, to take appropriate
steps for the protection and improvement of human environment;
AND WHEREAS it is considered necessary further to implement the decisions aforesaid
in so far as they relate to the protection and improvement of environment and the prevention of
hazards to human beings, other living creatures, plants and property.”30

The above preamble belongs to the statute of the Environment (Protection) Act of 1986. The
preamble succeeds in stating the intentions and grounds of statutes very well. It commences from
the grounds this act came into existence by a mere reference of the only United Nations
Conference on the Human Environment which was held in Stockholm, Sweden from June 5-16

26 Re Kerela Educa6on Act, 1958.

27 (1993) 1 SC 217.

28 Supra note 8, 10.

29 Environment (Protec6on) Act, 1986. (Act 29 of 1986).

30 Id.

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of 1972. From this very conference, the United Nations Environment Programme came into
being.31 The meeting concluded with 26 principles regarding the environment and its
development, which is also known as the Stockholm Declaration. The preamble then carries on
with India’s involvement in the meeting. The involvement concentrates more upon Prime
Minster Indira Gandhi’s speech in which they associate the ecological management and poverty
alleviation. 32

The latter part of the preamble concentrates upon the intention of the interpretation of the
statute. The latter part of the preamble states the emergence of protection and improvement of
the environment. It is followed up by the declaring the intent to prevent the hazards on human
beings, animals, plants and property. The intent is proved further in the chapter III of the
statute.33 The intent is also provided partially in the Chapter II of the statute but it focuses more
upon the powers to regulate and enforce this law.34

31 Najam, Adil (2005), "Developing Countries and Global Environmental Governance: From Contesta6on to Par6cipa6on to Engagement".

32 Indira Gandhi, the environmentalist, by Vidya Venkat (h:ps://www.thehindu.com/books/books-reviews/indira-

gandhi-the-environmentalist/ar6cle18514883.ece) visited on 05-06-2020 at 00:29.

33 Supra note 28.

34 Ibid.

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 Conclusion

At the commencement of this study, it was mentioned that legislative drafting is an art and
preamble was the intent of the art. By the above studies, it is expected the reader and my
respected coordinator, Dr. Girjesh Shukla lead me through more enlightenment than now as he
has been doing. The conclusive statement for the study; however is that the preamble is a
compromised subject and a topic for argument if it is still in relevance. Along with the long title,
the preamble is criticized by many to be even existent in a statute but on the other hand, it is used
in declaring the nature of the statute. According to me, I’m all for the law. As long as the
preamble is used in the statutes, it enhances my knowledge in the journey to understand the law
as a whole. By using these many statutes, I hope that the study has been made clear to understand
the research problem. Thank you!

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 Bibliography

Books-
• Legislative Drafting: Shaping the law for the new millennium, by T.K.
Vishwanathan;
• Drafting of laws, by Rajgopal;
• Mechanics of Law, by Ilbert;
• The Mechanics of Law Making, by Arthur Symonds;
• Principles of Legislative Drafting, by M. Sharda;
• Book xxix of the manner of composing law, by Charles de Montesquieu.

Statutes-

• Indian Penal Code (1860)

• Indian Contracts Act (1872)
• Indian Succession Act (1925)
• Reformatory Schools Act (1897)
• Iron and Steel Companies Amalgamation Act (1952)
• Re Kerela Education act (1958)
• Environment (Protection) Act (1986)
• Surrogacy (Regulation) Act, 2020.

Websites-

• www.linkedIn.com
• www.lawtimesjournal.in
• blog.ipleaders.in
• www.thehindu.in
• www.wikipedia.org
Dictionaries & Misc.- Merriam-Webster, Black’s Law Dictionary

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