CHAPTER V

THE STRUCTURE OF AN ACT

Structure of Acts leDeraDy
Although there may be slight variations in the positioning of certain
clauses in Bills drafted in the English language in the various countries
employing that language, it can safely be _asse~dthat the structure of
Bills is more or less uniform inJUsuchcountries. 1
-~st! th~·titl~~fthe· aill (~hi~h is ~~-bsequently to become an Act)
-~. . is printed at the top", This is for purposes of reference
.!.HORT TITLE and is short and catches tiij_~}'~iiuic~i It is known a~.
. inc short title. Example, the Transfer of Property Act,
the Wealth-tax Act, the States (Reorganisation) Act. .
Then follows the long title. This gives an 'idea of what the Act
proposes to deal with in a nutshell. It can be short or long depending
. upon matters which should be briefly referred to here in
LONG TITLI! order to explain the main purport of the Act .. For ins-
tance, the long title to the Transfer of Property Act, 1882
(4 of 1882) states simply that it is "An Act to amend the law relating to
transfer of property by act of parties".
The long title to The Tea Act, 1953 (29 of 1953) is in the following
terms. "An Act to provide for the control by the Union of the tea
industry, including the control, in pursuance of the Inter-national Agree-
ment now in force, of the cultivation of tea in, and the export of tea from,
India and for that purpose to establish a Tea Board and levy a duty of
excise on tea produced in India".
In both these cases the long titles are sufficiently explanatory and in
the latter case also gives the background.
The long title is followed by the preamble around which a mass of
case-law has grown. In most cases the preamble is a
PREAMBLE redundancy which can safely be eliminated. For instance,
in many of the earlier Indian statutes the preambles were
mere repetitions of the long titles. The following are illustrations.
The Indian Succession Act, 1925 (39 of 1925).
"An Act to consolidate the law applicable to intestate and testamen-
tary succession" (long title).
"Whereas it is expedient to consolidate the law applicable to inte-'
state and testamentary succession" (preamble).

I. Form of Bills in Ghana and Ceylon, see S. Namasivayam, Legislative Drafting

(1967) pp 1 et. seq. See also Reed Dickerson Legislaive Draftlng , p. 57 (1954);
P.M. Bakshi, All JIIII'odUClilJl/ 10 Legislative Drujiil/g (1972).
 THB STRUCTUB.B 0' AN ACT 41

The Identification of Prisoners Act, 1920 (33 of 1920).

..An Act to authorise the taking of measurements and photographs
01 convicts and others" (long title).
"Whereas it is expedient to authorise the taking of measurements
and photographs of convicts and others" (preamble).
The Reformatory Schools Act, 1~97 (8 of 1897)•
..An Act to amend the law relating to Reformatory Schools and to
make further provisions for dealing with youthful offenders (long title).
"Whereas it is expedient to amend the law relating to Reformatory
Schoolsand to make further provisions for dealing with youthful offenders"
(preamble).
In all the above cases the preambles are a mere surplusage. In
addition, the use of the word "expedient"
PB.BAMBLBS A SURPLUSAGB appears to suggest that the Legislature feels
IN MOST CASHS somewhat hesitant or apologetic about the
passing of the Act.
~t~man should take care to express h!mself in p1~n_and un-
ambiguous termsand should not seek shelter under a preamble for the
construction of his A~t.. Sometimes the preambles may be-used by politi--
cians to give expression to their own political philosophy without their
being anything in the body of the Act relevant thereto. That is to say.
cases may not be found wanting where there is no exact correspondence
between the preamble and the enactment. Sometimes the enactment may
go beyond or fall short of the indications given in the preamble. Again
there may be cases in ~which a section, read with the preamble, may have
a meaning different from that which it would have if there was no pream-
ble. The legislative intent should really be left to be gathered from the
other constituent parts of the enactment.
From all points of view therefore it is best to give up preambles and
depend upon long titles for the necessary ~lucidation where the scope for
mischief or ambiguity may be much less.
Occasionally it is argued that in countries like India which have
writte; C-onstitutions guaranteeing fundamental rights, it is advisable to
Q)C1Iout in some detail the background to the enactment through recitals
in the PLeamble so as to render it less vulnerable to attack. As an example
of this type of preamble, one may cite The Iron and Steel Companies
Amalgamation Act, 1952 (79 of 1952) whose long title and preamble run
as follows :-

"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 manufacture and produc-
tion of iron and steel, and for matters connected therewith or inci-
dental thereto." (long title).
"Whereas for the purpose of securing in the interest of the general
42 THE DRAFTING OP LAWS

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).

Even here one may observe that all the relevant matter could easily
have been worked into the body of the long title and the body of the Act
thus obviating the necessity for a preamble.
The object of the preamble can be served equally well by the long
title in almost allcase». Acts __!J1_ the United 'Kingdom, Australia an~
C~n.~da ~v~_!J.O preambles and in Republican India also preambles hay.e
MW been. given upwith very rare exceptions.
. It has also been suggested that the long title and preamble are really
old fashioned frills and may be entirely dispensed with, They are said to
be a mere formality and of little use provided the Act is drawn in precise
terms and does not have to depend upon the above devices. The criti-
cism is not without substance.
The enacting formula comes after the long title and preamble, if
any. The form adopted in India since the 26th day of January, 1950,
when India became a Republic is as follows "Be it enact-
ENACTING ed by Parliament in the ... year of the Republic of India
PORMULA as follows". The form adopted is an adaptation of the
United Kingdom precedent suited to Indian conditions.
This form has, however, been criticised in some quarters as not suited to
India and it has been suggested that it should be recast to read "It is hereby
enacted by Parliament in the ... year of the Republic of India as follows",
To the author, there seems to be little difference between the two formulae;
if any, the former has a ring of solemnity.
The first section in all Indian enactments usually states (a) the
short title (b) the extent of operation .of the enact-
FIRST SECTION ment and (c) its commencement.
The short title clause generally runs as follows-"This Act may be
called the Transfer of Property Act, I ~l)2". As the Act is and has to be
referred to by that name, the use of the word
SHORT TITLB CLAUSE "may", unless it is construed as meaning "shall",
would appear to be somewhat inappropriate; but
the word "may" is used in all other countries in this context. The justi-
 THI STRUCTUIU! OF AN ACT 43

Acation perhaps is that the Act could also be referred to in some other
manner so long as the reference is clear.
This clause could also be eliminated if the Interpretation or General
Clauses Act of the country concerned included a provision to the effect
that every Act of Parliament shall be called (cited) by the name printed at
the head thereof.
The extent clause deals generally with the territorial extent of opera-
tion of the Act awLmay be couched in different forms-"This Act ex-
tends to the whole of India" or "This· Act •extends to
EXTENT CLAUSE the whole of India except the State of Jammu and
~ashmir" or "Ihis Act extends in the first instance to
the States of... and may, by notification in the Official Gazectte, be ex-
tended to any other State by the State Government concerned".
Normally, an Act of Parliament is intended to apply to the whole
of the count under its Ie islative iurisdiction, "If, therefore, tbe Intcr=
retation or General Clauses Act of the country concerned included a
provision whereby every Act of its Parliament is declared automatically
to extend to the territories under its legislative jurisdiction, the extent
clause could also be eliminated except in the rare cases where a more
limited operation is called for.
The Interpretation or General Clauses Act usuall rovides
!'ct 0 ar iament shall c.omm~l!~l~Dless otherwise siated) on ~
t~e Act is a~~enJe(U..QJnrjhc. authoritl- s~ifictd""(or
COMMBNCEMBNT t..~ur'pose. under the Constitution -.of-the --COuntry
CLAUSE or on the day on which such assent is first published
in tbe olliciai gazette:" hi this context a commence-"
ment clause becomes necessary onlY-where ite Act IS to come into force
on a later date or on different da""tes 10 different States or with respect to
~ifferent provisions or retrospectivel{iiid so OQ. -
An ordinance which is an emergency measure, has to come into
effect ImmedIately on its promulgatIOn and it is therefore customary tor
iliCTnoJan draftsman to say 10 respect of an Ordinancc_that it shall come_
into force at once.
' - Ihere are cases where an Act may have to be given extra-territorial
application, that is to say, a faw may liave to be made applicable ""to -citi="
zens of India even.\v~en outside India, ~i-"-o ships -an<J
APPLICATION aircraft registered in Lndia wherever they may be or to.
sscnox territorial waters. In' all such cases the practice is to
haVe a separate section'5i>eilfng out the application of the
Act. The Penal Code of India ( 1860), for" instance, provi'OCs 'tbants pro-'
Visions apply also to any ~ffe~e ~o!..~rltitled l?x..

(i) any citizen of India in any £.~~~ witl!out and beyond India.
(ii) ~!.1Y person on any ship or_!,ircraftregistercd in India, 'Yher~vsr
It may be .•
 44 TRB DRAFTING OP LAWS

Or take section 2 of the ~ir Force Act, )950 which states that the
following persons (miming th~) sh!!L l>~__ su.l.)k~tto·-this A~t "wherever
they may be".' The Merchant Shipping Act, ) 958 in more eipJicitterms
provides in section 2 as follof.rs•
..W) !:!:n~s.!_ otherwi~ . eXPfcssly . pr~<?!idedl the provisions o(t!!is
Act which apply to ships which are registered in India or which in terms
'or_~!~ Act_~e _~qllj!~d .to be so-;'egistered shall so ap"pi~: wherever the
ships may be ; .
(2) Unless otherwise expressly provided, the provisions of this Act
which apply to ships other than those referred to in sub-section (I) shall
. so apply only ;)illc'any ship ill- within India, including its territorial
.W-UcfL"
.The definition section generally finds a place after the short title,
extent and commencement section or when there is a special application
-- ....--- ~tion, after the application' section. In the Unit.cd
DEFINITION Kingdom the definition section is usually placed at the-
SBCTION end, the reason given being that the contents of the Bill
. have first to be settled before the definitions intended to
serve the p..!!.rposciof. the BUCcould be.- distU~' Perhaps for the sam~
---
reason the short titt~. "--------------
.-._---
_. -
cbluse also appears
- -.
atth~Jm9 ~ JJ.K. el)a~tmentl.
In Indiaand in a few other countries Wee Australia and Canada. the short
~

title and definition clauses appear at the beginning."

. The definition clause is framed to suit a particular Act and not, as'
in the' case of the General Clauses Act, ,for convenience in drafting other
Acts. Special definitions would be needed where the draftsman intend'
to give the words a meaning other than what is given to them in the
General Clauses Act or the words have awider or narrower dictionary
meaning than what is intended in the relevant context. . If words have
received a judi~ial.interpret~tion the draftsman would be well advised to
'keep ifTn mind when framing his definhions, No doubt, he has power to
make words have any sense, regardless of their natural, technical or legal
'iiJeanTngbut it could be an abuse'of this power if he were to give the words
ameaiiiog which by no stretch of imagination it can bear having regard
to their ordinary usage.
A draftsman would be well advised to have a glossary of terAls,
inclu<Hng words defined in. the General ClausesAct, words which have
received judicial interpretation and words which have bCen used in a.
certain sense i!L,91her Acts.'. 'this will enable him to decide Whether the
;onrs he uses will be taken in the sense which he means or whether a
~peciaJ defi~ition!.sn~cssar.Y--.-· ~
2. It may be mentioned here that the practice followed in the Indian Parliament is to
put the long title, preamble and the enacting formula to vote only after all the
clauses of the Bill are put to vote and decided upon.
3. The author, while in office in the Ministry of Law, had prepared an index of statu-
tory definitions for use in the office.
 THB STRUCTURE OF AN ACT 45

The object of the definition section is to make token words r~re­

seat complicl1~ notiOUs'sQ'that such ~ords may be ~'~ed without'rep~at­
ing the compljcat~oo., He coins phrases to be usedin the Act in order to
shorten references to certain matters, but he should take particular care,
when using the phrase, to see if its full meaning is suited to all the circu-
mstances in which it will be used.
JoiY~$tr.te, "Cattle" means cows, 1:>uH~, buffaloes ,and calves" (an
exhaustive defiriitmn);-- -, ~ '-
"'yesser' includes boats, rafts and other floating conveyances" (not
.e~~u~!ive, ~ot~~!!standing the-generality of the last reference).
In the operative or substantive part (if one may give it that name
notwithstanding iliat all parts of an Act are opera-
ARRANGBMENT OF tive or substantive) the main object or purpose of
ACT GENERALLY the Act or its principle or its leading motive will
.be'stated. In clear terll]s This generally consists
of A small group of sections from which the main object or purpose of the
Act can easily be ascertained. The reader should
THB MAIN PART not have to roam about the Act in order to find
put iis mainobject., In taxation Acts, for instance,
the P!QPQsqltior taxation wilLbe round in this pao. .
Then follows what may be called the general or machinery part in
which' will be found provisions which ~are ancillary to, or which are a .
~cessary corollary ~f, theoperative or substantive partto ,
THE make the Act workable, This part generally includes the
GENERAL agents or authorities administering the law, and the instru-
PART ments and means necessary to give elfect to the law, includ-
1!lg sanctions to enforce the 'law:. Sometimes the purpose of
the Act is best served by stating the powers conferred on authorities so that
not infrequently the constitution of the administering authorities is among
the first matters to be dealt with in an Act.
~,Acts often contain a chapter headed, .~'Misc;~Hall~ous" in which..are
included .provlslons relating to matters like protection of actio!l.-io
-- good faith by authorities, c'xemptlons, if any, from
THB the operation of the Act, power to delegate functions
!>tISCELLANBOUS pr t~m-.!llce rules. Special or exceptional provisions,
PART temporary or transitional provisions, pro~i~iQnsrclat.-
ing to repeal or amendment of other laws are generally
placed at the end' so that when the time comes they may be repealed
without producing any gaps in the body of the Act. .,
--Y~!ioftcii a sched-uleha's to be-- appen.aea:!o an Act. The, ter_~
"schedule" is defined in the General Clauses Act. 1897, to mean a
schedul~ to the Act or Regulation in which the word oc~~~;:­
SCHEDULE A schedule is as much apart of the Act in which iLoc~~~
asa'oy other section thereof and, unless it ismadealter-,
able by executive authority the question whether a particular iprovl-
 046 THB DRAFTING or LAWS

sion or set of phrases should appear in the body of an Act or in a

schedule is a question of form and parliamentary practice. It goes with-
out staying that the schedule has also to be drawn with the same care as
i~ bestowed on the rest of the Act. In some cases there may be more
than one schedule; the Indian Constitution itself is an example of a law
with several schedules.
If an Act is a complex one, like the Companies Act, the Income-
tax Act and so on it would be convenient to divide the Act into parts or
Chapters. The Indian practice is not to divide an Act into Parts or
Chapters if it is a short one, say, of twenty sections or so. In such cases,
short headings may be given to groups of sections, dealing with related
matters. The Medicinal and Toilet Preparations (Excise Duty) Act, 1955
which consists of twenty sections bas the following headings sufficiently
explanatory of the provisions included under each head. "Preliminary",
"Levy and collection of duties", "Powers and Duties of Officers and
Landholders" and "Supplementary Provisions".
Division of an Act into parts and chapters will largely depend upon
the. length of the Act and. tl!.e subi~ct ma~tectQbe dealt with therein; Al~
!bough .there is no hard and..iast.tulc.relating. to this matter, common
sense wouldperhaps suggesU!.ivis!.Q.n into Pa!'luYhm':"J.h~w.bject matter.
of one group of sections is so ~ifferent frol)) the ..!ubiefL1Tl~tle!. of another,
group, although forming an integral part of the maJ~.A~t, that it may_be.
convenient Jo deal with them assepa'rate -'units of a composite whole,
(e.g. the Merchant Shipping Act. 1958). Parts could also be sub-divided
into Chapters. Chapters. on the other hand. may come in handy when
the A~t is ~~t t.?o.IkBe,}he subject matter closely linked and requires
only separate headings for £2.1!~~.~classification and reference.
The sections of an Act are generally numbered by Arabic numerals.
A-section should be subdivided into sub-sections where they would other-
wise 'beJeng,thy or comm~ Sub-sections are also
NUMBERING OF numbereiLc.onsequtivel¥--byAral!ic figures within
SECTIONS ETC. brackets. For sub-division of a sub-section or even
a section into clauses, italicized letters in brackets
~:&J.a)_ (b) (r) may 2~.~se.Q1 the ..c1auses being indented. If a clause,
is to have sub-clauses, small Roman numerals in brackets may be: used..
'file sub-clauses being further indented. It would be advisable not to
Iiave niore than one sentence in a section or a sub-section which does not
cont~in any_su~~cHW1s. ~void illustrations. T_he_p.ractice of gi~i!1g
illustrations to Acts has long been given up. The reasons are not far to
~k.··
- To every section a marginal note or caption i~ _generally attached.,
Such' marginal notes are convenient for purposes .ofreference and when
read together give a fair -idea of the contents of an Act. They can atso

4. See Charter VlIl, Rules of Interpretation.

 THE STRUCTURE OF AN ACT 47

serve as tests to determine whether a given subject should be dealt with.

in one or more sections. For instance, if the marginal
MARGINAL ~note becomes long or c~nn~t be made distinctive without
NOTES being long, t~e J~~sumption would be that the subject
matter should be dealt with in more sections than one,
In India, the practice has grown of having a Table of Conlents.or
.. Arrangement of Sections", as it is now called.
TABLE OF CONTENTS for every Act containing twenty sections or more.
OR ARRANGBMENT This reproduces the marginal note to every sec,
OF SECTIONS tion, Such a table would be useful not only for
convenience of reference but also for testing the
logical sequence of the arrangement adopted.
A word may be said here about certain special types of legislation
where an Act merely seeks to amend one or more laws already in force.
The Indian practice is to draft the amendments in such a
AMENDING way as to get them incorporated into the principal Acts.
ACTS and some such form as the following is used for the pur,
pose-"For section 10 of the Act the following section
shall be substituted," or "after section, 10 of the Act the following section
shall be inserted," and so on. ~practicejs moreJ~8ical and cOllvenie_nt
than the one adopted in the. United Kingdom, for e~~mple, where iu.u~n
to the public and the courtsto read the principal Act, and the!l,mendi~
~Act together. Some reform is conternpleted inthe-United Kingdom also
~ftf'r the Renton Committee's Report in_L975~
When numerous amendments ¥e to be made in an Act, it wo~I(Lll"
~v~ahle to consider whether it is not better.
RE-ENACTMENT OF ACT !() repeal Jhe original Act an~ re-enact it with
IN CERTAIN CASFS the' proposed amendments; This will have
-the effect of reducing the bulk 'Of the statute
book: it also makes it easy fOf the person applying or administering the law.
--,._
Where an Act has been amended several,-" .•. - times and the Act has
become clumsy (as is generally the case with Tax Acts which are subjected
.

to annual amendments as a .!Uatter of routine) ~se. m~:i arise for re.writ:-

ing the Act more systematically. But there may be several difficulties
lo contend with. First. no amendment. of substance.
..,...---~.. '" ...-however
.' desirable,
...
~.~J.llad.e ill su.ch a reVJSIOJ:I ; secondlythe re-enacting legislation may
have to speak from different times with respect to its different provisions;
~Iith~~ is no knowing wheHier the Legislature-would not subject tile
redraft to a close scrutiny ~~aking amendments of substance therein, a
contiiigeJl~y with may not be fav'oured by Government.
In India, the practice has grown of promoting periodically Repealing
and Amending Acts which help to removerioluthe statute book legisJa-
tion which is spent or is no longer needed and so
REPEALING AND on, These Acts at the same time enable inadver-
t>MENDlNG xcrs tent or obvious errors which may have crept,
48 THE DRAFTING OF LAWS

into the statute book, to be corrected. In this connection a broad

definition of the types of legislation which could conveniently be included
in such repealing and amending Acts may be attempted. Law Revision
Acts in some other countries proceed on this basis. Expired enactments,
that is, enactments which, having been originally limited endure only for
a specified period by a distinct provision, have not been either perpetuated
or kept in force by continuance, or which have merely had for their object
the continuance of previous temporary enactments for periods now gone
by effluxion of time. Obsolete enactments, as where the state of things
contemplated by the enactment has ceased to exist, or the enactment is of
such a nature as to be no longer capable of being put in force, regard
being had to the alteration of political or social circumstances. Spent
enactments that is, enactments spent or exhausted in operation by the
accomplishment of the purposes for which they were passed, either at the
moment of their first taking effect, or on the happening of some event, or
on the doing of some act authorised or required. Superseded enactments
where a later enactment effects the same purposes as an earlier one, by
repetition of its terms or otherwise. Enactment repealed in general terms:
that is, repealed by the operation of an enactment expressed only in
general terms, as distinguished from an enactment specifying the Acts on
which it is to operate. Enactment virtually repealed, that is where an
earlier enactment is inconsistent with, or is rendered nugatory by a later
one, or by a constitutional provision.'
Validating legislation may have to be undertaken where an existing
law has been misunderstood or wrongly applied or a State Legislature
has passed a law which is beyond its conpetence but
VALIDATING OR within the competence of the Central Legislature. Such
CONFIRMATORY legislation may assume different forms; some may
ACTS' merely validate action taken; others may re-enact
the provisions or without doing so, may merely provide
that the invalid law shall be deemed to have been enacted by the appropriate
legislature. The following examples may be cited in this connection.
The Marriage Validation Act, 1892 (2 of 189!); The Hindu Marriages
(Validation of Proceedings) Act, 1960 (19 of 1960); The Arya Marriage
Validation Act, 1937) (19 of 1979); The Himachal Pradesh Legislative
Assembly (Constitution and Proceedings) Validation Act, 1958 (56 of
1958); The Sales Tax Laws Validation Act, 1956 (7 of 1956); The Bar
Councils (Validation of State Laws) Act, 1956 (6 of 1956).
The Conference of Commissioners on Uniformity of Legislation in
Canada have made certain observations on drafting in general' and with
suitable modifications they may be adopted for guidance in framing Acts.

5. See Craies, Stalwe'Law, pp, 356, 357, (1963).

6. See Rules of Drafting 26 Canadian Bar Review, pp. 1231 et, seq. (1948); see also
Reed Dickerson, Legislative Style and Grammar, pp. 61 et, seq.
 THE STRUCTURB OF AN ACT

Certain general observation. 011 drafting

Ensure that the meanings of provisions are not made to depend
upon titles, marginal notes, headings and such like because, strictly speak-
ing, they should have no special-significance.
JJse enumerations with caution. It is almost impossible to make the
enumeration exhaustive and accidental omission may be construed as im-
plying deliberate omission .
.short sentences are preferable to long or complicated ones.. Where
ordinary language is unambiguous, avoid use of
technical languag~, that
is to say, everyday words may be used wherever possible. Do not use
more worMan are 'necessary to make the meaning clear because every
superfluous word may raise a discussion in court. Nouns may be used in
preference to pronouns even at the cost of repetition. Elegance of style
may have to be sacrificed to give way to-preCiSion in
meaning. Do not u~e
the same word with different meanings..
Structureyour sentences in such a way that the meaning is not made
dependent on internal punctuation. Punctuations are generally a source
of ambiguity.,
In general, use active voice which is more forceful than passive. It
~s better to say that particular person "may do" a particular thing tha9
a
!hat particular thing "1JI~y be done': !?y a particular person: this wiJl
avoid any latent ambiguity. There is, however. no real objecticn.uo t!le
passive voice if the identity of the legal subject is otberwise clear.

-
Confine the use of the word "shall" to the imperative.
.
The present tense is often the clearest and most certain in vesting
powers and obligations. The law is considered to be always speaking:'
Avoid legislating by reference. It is unjustifiable to resort to this
method if the object is to bye-pass detailed consideration of the proposals
in the Legislature. The object of drafting is not to save trouble but to
make the meaning clear. Difficulties of construction are bound to arise
whensome other enactment is incorporated-in bits or some old procedure
'is adopted in relation to a new and different subject matter. .Difficulties
'may also arise where the provisions of one enactment are incorporated in
another by this referential method and the incorporated enactment under-
goes amendment subsequently.'
, Within strict limits, however, such a device may be both justifiable
and expedient as where it is considered fit and proper to utilise an existing
------ -----------~-~~---,-- - - - - - - - ~ - - - - - - - -

6. The Canadian Interpretation Act, 1927, provides in section 10 that "the law
should be considered as always speaking, and, whenever any matter or thing is ex-
pressed in the present tense the same shall be applied to the circumstances a~ they
arise". There is, however, no corresponding provision in the Indian General
Clauses Act, 1897. See Radhi Bewa v. Bhagwan Sahu, A.I.R. 1951 Orissa 378 as to
the meaning of the expression "a statute is to be regarded as always speaking".
7. See Bajya v . SmJ. Gopikabai. A.I.R. 1978 S.C. 783.
so THE DRAFTING OF LAWS

machinery for implementing the Act. Example, utilising the land revenue
recovery procedure for collecting other taxes.
_yse provisos sparingly. ~They are a great source of doubt and am-
biguity. If needed, they should not be used to state a general rule or
statement. If the language of the enacting part is clear and does not con-
'tain the provisions which are said to occur in it, one cannot derive those
provisions by .implication from the proviso." It has been said that the
proviso becomes a convenient tool in the hands o(a draftsman. If he has
~neglected to complete the case, or h'as
said too much, he makes a correc-'
lion by means of a proviso, If he has no clear idea ~f what he wants "to
say he adds one or more provisos; if he has forg()tte.n the existence of
'such simple words as "but", "if" or "except", or has f~.~g0t..t~n the
expedient of adding a new section or sub-section. he adds a proviso.'
'It has also been said that the proviso is a legal incantation which should be
banished from the statute book,"
A proviso upon a proviso would make confusion worse confounded,
~ere there are two provisos, one inconsistent "with the other, difficulties
of construction" are bound to a i - f s e . "
Indiscriminate use of the non-obstante clause may also cause diffi-
culties as to which enacting paragraph is to be given overriding effect. The
'Supreme Court had considerable difficulty in deciding' between the over-
riding priority given to two separate pieces of legisla!ion~ ii~e the Banking
Companies Act and tbe Displaced Persons (Debts Adjustment) Act.!'
If such a clause is used, there should be close approximation 'bet-
~een that clause and the operative part of the section. It. is, however, not
necessary that the non-obstante clause is co-extensive with the operative
part if it has the effect of cutting down the c1eir termsof the enactment, 12 •
. - Avoid the use of "and/or", "the said", "aforesaid", "hereinafter"
and the like as far as 'possible for the sake of readability and for ensuring
tbat laterrearrangc"mentor-amendment does not change the context., .

BIBLIOGRAPHY

S. Namasivayam, Legislative Drafting, (1967).

Reed Dickerson, Legislative drafting (1954).
P. M. Bakshi, An Introduction to Legislative Drafting.
Rules of Drafting, Canadian Bar Review, (1948).
Reed Dickerson, Legislative Style and Grammar.
E.A, Driedger, Legislative Drafting, Canadian Bar Review, 29 (1949).

8. Tire Guardians of the Poor 01 the Wc'st Derby Union v . .Metropotitan Life Assurance
Society, (1897) A,C. 647, 652.
9, E,A. Driedger, Legislative Drafting, 27 Canadian Bar Review p, 291 at 314 (1949).
10. u. at 307.
11. Sri Ram Narain v. The Simla B.7l1killg & Industrial Co. Ltd" ( 1956) S.C.R. 603.
12. Dominion of India I'. Shrimbai A. Irani, (1955) S.C.R. 206.