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Unit 2: Principles Related to Legislative Drafting
2.1 Constitutionality of Law
Every draft must pass the Constitution. Article 1 makes any law inconsistent with the Constitution void. The drafter checks: is the subject within the legislature’s power list (federal Schedule 5, concurrent Schedule 7, and the rest of Part 5’s allocation)? Does it respect fundamental rights, including the restriction provisos of Article 17? Is the procedure followed — finance bills only in the House of Representatives (Article 110), passage and certification under Articles 111 and 113? An unconstitutional draft is not law in the making; it is litigation in the making.
2.2 Supreme and Delegated Legislation
- Supreme legislation proceeds from the sovereign legislature itself: Acts (and the Constitution above them).
- Delegated legislation is made by an authority under powers granted by an Act — regulations, rules, orders, by-laws. The enabling Act must state the limits of delegation; delegates cannot sub-delegate beyond authority; and delegated instruments must lie before the legislature where the rules so provide. The drafter’s discipline: delegate details, never principles.
2.3 Colorable Legislation
A colourable law pretends to do what it may do while doing what it may not. If a province lacks power over a subject, it cannot take it by dressing the statute in permitted clothing. Courts look to substance, not the title. The drafting lesson: honesty of classification — the law’s operative effect must match its claimed head of power.
2.4 Degree of Criminality and Quantum of Penalty
Penalty must be proportionate to offence: the ladder of criminality (fine → imprisonment → both → grader terms) must map onto the harm’s seriousness. Article 16(2) bars capital punishment. Over-penalizing a trivial breach invites constitutional challenge and enforcement paralysis; under-penalizing a grave harm mocks the victim. The drafter calibrates: maximum, minimum, and the sentencing court’s room.
2.5 Procedural Fairness
A law that affects rights must carry fair procedure inside it: notice, hearing, reasons, appeal. Fairness is drafted, not assumed — the clause designating “opportunity of being heard” and the appeal’s forum is the citizen’s guarantee. Article 20(9) makes fair hearing a constitutional right in adjudication; statutes must build it in.
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