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Drafting legislation is an extremely onerous task and requires proficiency. It is usually difficult to express with exact precision anything that may be easily conceivable by the mind. This is the skill of a legislation drafter who is expected to pen down every word with the exactness to create a nexus between the legislation and the intention behind it.
Like goldsmiths, drafters have to give the most accurate shape to the statutes by the appropriate arrangement of words and punctuations. Even a great policy can turn out to be a bad law because of ambiguity or incorrect placement of words. Therefore, presence of mind is the key to successful legislation.
Drafting legislation is a highly-skilled task and there is no one specific way to draft perfect legislation. The following points must be considered while drafting legislation:
1. Draft in a Simple Language:
Legislation drafting is like poetry; both the authors and the lawmakers play with the words and try to influence and change the society by their carefully chosen words. Nevertheless, unlike poetry, legislation drafting does not require the use of metaphors and imagery, rather, consistency and simplicity are the keys to effective legislation.
While drafting legislation, one must keep in mind that the statute is prepared for the people to adhere to its provisions and it will be possible only if the legislation is drafted in easy and simple language without the use of any flowery language and unnecessary exaggerations.
2. Draft with a Purpose
It must be remembered that every legislation has a purpose behind it and it reflects the intention of the lawmaker. The use of the words in legislation must show the intention of drafting the specific provision. For instance, the purposeful use of the words ‘may’ and ‘shall’ at appropriate places.
There are different ways to interpret different legislation. For instance, penal laws are interpreted strictly; it means that in these statutes the intention of the lawmakers does not matter but the mere words in the statute are used as the final word. Thus, the drafter should know the interpretation technique of their legislation and draft accordingly.
3. Research Vigorously
A law is made to regulate or curb a menace or implement an ameliorating policy. It is essential to find out the background of the situation that has resulted in the need of that law, what the law is trying to regulate and what provisions would be essential for such regulation.
Comparative research must be conducted with laws of other developed countries where similar legislations have been implemented successfully. Always research for International conventions on the point of law and use the provisions of the conventions to suit your legislative purpose.
4. Keep the Grundnorm in Mind
The Constitution of India is the grundnorm of all laws in the country, and it must be conformed to under all circumstances. The Constitution is not just a checklist of what should be there and what should not be there in legislation.
If interpreted properly, it provides the key provisions and the aim of every legislation that can be fulfilled. For instance, the Right to Education Act was enacted in light of Article 45 of the Constitution, the Directive Principle to uphold the interest of the children.
5. Develop a Unique Drafting Style
Every person has a specific way of drafting a document even when it comes to legislation. For instance, Robert Moses was one of the best statute drafter in the US in the 20th century who drafted several legislations affecting the city planning of New York City and compelled, by his legislations, the authority to unify several parks and complete hundreds of projects which were not completed since decades.
It is necessary to read legislation drafted by others and understand the style followed in those legislations and use the ones which will be beneficial for the country according to its socio-economic and political situation.