Introduction
Drafting is the process of
transforming legal ideas, rights, duties, and obligations into clear, precise,
and enforceable written documents. It is a key professional skill for lawyers,
necessary for preparing pleadings, contracts, conveyancing documents, petitions,
affidavits, notices, and other legal instruments. A well-drafted document
avoids ambiguity, protects the client’s interests, and minimizes litigation.
The art of drafting is governed by certain general principles as well as
substantive legal rules relevant to the subject-matter of the document.
I. General Principles of Drafting
1. Clarity and Precision
The foremost principle is that
the language used must be unambiguous and easily understandable. Vague
expressions can lead to multiple interpretations and future disputes.
- Avoid long sentences, double negatives, and
abstract terms.
- Use definitive words such as “shall,”
“must,” “may,” with caution.
Example:
Instead of “It is believed the party may be responsible,” use “The
defendant shall be responsible for…”
2. Simplicity of Language
Legal drafting should avoid
archaic expressions like “hereinafter,” “thereof,” and “witnesseth,” unless
legally required. Simple, direct English improves comprehension for courts and
clients.
3. Logical Arrangement
The document should follow a
systematic structure:
- Title
- Parties
- Recitals
- Definitions
- Operative clauses
- Covenants
- Remedies
- Execution
Logical sequencing ensures the
document flows coherently and prevents contradictions.
4. Use of Definitions
Key terms must be clearly defined
at the beginning. Defined terms reduce repetitiveness and remove ambiguity.
E.g., “Premises,” “Consideration,” “Confidential Information.”
5. Consistency
Words and phrases once defined
must be used consistently throughout the document. Inconsistent terminology can
weaken enforcement and create interpretive issues.
6. Avoidance of Redundancy and Repetition
Each clause must serve a purpose.
Repeating the same concept in different ways makes the document bulky and
confusing.
7. Use of Present Tense and Active Voice
Legal documents are typically
drafted in the present tense because they speak from the date of execution.
Active voice makes obligations clearer (“The buyer shall pay…”).
8. Correctness of Facts
Accurate representation of names,
descriptions, property details, dates, and other factual elements is essential.
Errors can invalidate the document or cause litigation.
9. Anticipation of Contingencies
The drafter must foresee future
events and incorporate appropriate clauses, such as:
- Force majeure
- Dispute resolution
- Termination
- Severability
This ensures that the document
remains effective even when circumstances change.
10. Avoidance of Ambiguity
Ambiguity can be:
- Lexical (unclear word meaning), or
- Syntactic (sentence structure ambiguity).
The rule of contra proferentem
applies: ambiguities are interpreted against the drafter.
11. Brevity Without Sacrificing Completeness
Drafting must be concise yet
comprehensive. The document should cover all essential rights and obligations
without unnecessary verbosity.
II. Substantive Rules Relevant to Drafting
Drafting is not merely linguistic
skill; it must comply with the substantive laws governing the
transaction or litigation. Some important substantive rules include:
1. Rules from Contract Law
When drafting agreements, the
essential elements of a valid contract must be ensured:
- Free consent (Ss. 13–22, Indian Contract Act)
- Lawful object and consideration (Ss. 23–25)
- Capacity of parties
- Certainty (S. 29)
- Possibility of performance (S. 56)
Drafting must ensure that clauses
do not violate public policy or statutory prohibitions.
2. Transfer of Property Laws
Documents such as sale deeds,
mortgages, leases, gifts, and exchanges must comply with the Transfer of
Property Act, 1882 and Registration Act, 1908.
Examples:
- A sale of immovable property worth over ₹100
must be registered.
- Mortgage deeds must specify type (simple,
usufructuary, etc.).
- Leases beyond one year require registration.
3. Family and Personal Law Requirements
Drafting family settlements,
wills, adoption deeds, marriage agreements, etc., must align with personal laws
(Hindu Succession Act, Muslim personal law principles, etc.).
4. Civil Procedure Rules
Drafting pleadings (plaints,
written statements, affidavits) must follow the Code of Civil Procedure,
1908:
- Order VI: Pleadings in general
- Order VII: Plaint requirements
- Order VIII: Written statements
Pleadings must state material
facts only, not evidence.
5. Criminal Law Requirements
Drafting complaints, FIR
narratives, or bail applications requires adherence to the CrPC,
specifying necessary facts constituting the offence.
6. Company and Commercial Law
Drafting MOA, AOA, share
agreements, and partnership deeds must comply with:
- Companies Act, 2013
- LLP Act
- Partnership Act, 1932
Substantive compliance ensures
legal validity.
7. Statutory Forms and Mandatory Clauses
Some laws prescribe specific
formats or mandatory clauses. The drafter must ensure adherence to these
statutory requirements to avoid voidness or unenforceability.
III. Case Law Supporting Drafting Principles
- Keshav Mills Co. Ltd. v. CIT (1965) – Courts must interpret documents by giving
effect to the intention expressed in clear language.
- Delhi Development Authority v. Durga Chand
Kaushish (1973) –
Importance of reading the document as a whole to ascertain true intention.
- CIT v. Motors & General Stores (1967) – Substance prevails over form if ambiguity
exists.
Conclusion
Drafting is the backbone of legal
practice. Effective drafting combines linguistic skills with a sound understanding
of substantive law. A well-drafted document is clear, precise, legally
compliant, and structured to anticipate potential issues. Adherence to the
general principles of drafting and relevant substantive rules ensures documents
are enforceable, reduce litigation, and safeguard the client’s interests.
Hence, mastery of drafting is indispensable for every lawyer.
I. CIVIL DRAFTING
(a) PLAINT
MEANING:
A plaint is the pleading filed by
the plaintiff to start a civil suit containing material facts, cause of action,
and relief claimed.
ESSENTIALS (Order VII Rule 1 CPC):
- Name of Court
- Name & Address of Plaintiff/Defendant
- Facts constituting cause of action
- Jurisdictional facts
- Relief claimed
- Valuation for court fee
- Signature & verification
- List of documents
CASE LAW
1. T. Arivandandam v. T.V. Satyapal (1977)
Facts: Suit filed without real cause of action.
Issue: Should courts reject frivolous plaints?
Judgment:
- Courts must scrutinize plaint at the
threshold.
- Reject meritless plaints under O7R11.
- Prevent harassment through bogus litigation.
2. Bachhaj Nahar v. Nilima Mandal (2008)
Facts: Court granted relief not asked for.
Judgment:
- Court cannot grant relief beyond plaint.
- Relief must be specifically pleaded.
(b) WRITTEN STATEMENT
MEANING:
The defendant’s pleading
responding to the plaint through admissions, denials, and defenses.
ESSENTIALS (Order VIII CPC):
- Point-wise reply to plaint
- Specific denials (Rule 3–5)
- Set-off (Rule 6)
- Counterclaim (Rule 6A)
- Must be filed within 30–90 days
- Signed & verified
CASE LAW
Badat & Co. v. East India Trading (1964)
Judgment:
- Vague denial = admission.
Kailash v. Nanhku (2005)
Judgment:
- WS time limit is directory, not mandatory.
(c) INTERLOCUTORY APPLICATION (IA)
MEANING:
An application filed during a
suit for temporary/interim relief pending final decision.
ESSENTIALS:
- Title & case details
- Relief sought (injunction/attachment/receiver)
- Grounds for relief
- Supporting affidavit
- Annexed documents
LAW:
- Order 38 CPC – attachment before judgment
- Order 39 – temporary injunction
- Order 40 – receiver
CASE LAW: Dalpat Kumar v. Prahlad Singh (1992)
Judgment:
3 ingredients for injunction:
- Prima facie case
- Balance of convenience
- Irreparable injury
(d) ORIGINAL PETITION (OP)
MEANING:
A petition filed when a statute
gives original jurisdiction (e.g., divorce, guardianship).
ESSENTIALS:
- Title & parties
- Statutory provisions invoked
- Material facts
- Grounds for relief
- Prayer
(e) AFFIDAVIT
MEANING:
A sworn written statement of
facts made under oath.
ESSENTIALS (Order XIX CPC):
- Statement of facts
- Verification clause
- Declaration of truth
- Signature of deponent
- Attestation by Oath Commissioner
CASE LAW: A.K.K. Nambiar v. Union of India (1969)
Judgment:
- Affidavit must clearly distinguish between:
- facts known
- facts believed
- information received
(f) EXECUTION PETITION
MEANING:
Filed to enforce a decree.
ESSENTIALS (Order XXI CPC):
- Details of decree
- Mode of execution (arrest/attachment/sale)
- Identification of property
- Statement of amount due
- Prayer for execution
(g) MEMORANDUM OF APPEAL
MEANING:
Document filed to appeal against
decree.
ESSENTIALS (Order XLI CPC):
- Court name
- Details of decree appealed
- Grounds of appeal
- Prayer
- Verification
(h) MEMORANDUM OF REVISION
MEANING:
Filed to correct jurisdictional
errors.
ESSENTIALS (Section 115 CPC):
- Error of jurisdiction
- Material irregularity
- No alternative remedy
- Prayer
(i) WRIT PETITIONS (Art. 226 & 32)
MEANING:
Filed for fundamental rights
(Art. 32) or legal/FR rights (Art. 226).
ESSENTIALS:
- Locus standi
- Violation of right
- Grounds for writ (mandamus/HC etc.)
- Relief sought
- Affidavit
CASE LAW
Maneka Gandhi v. Union of India (1978)
Facts: Passport seized without hearing.
Issue: Is fair hearing part of Article 21?
Judgment:
- “Procedure established by law” must be fair,
just, reasonable.
II. CRIMINAL DRAFTING (BNSS 2023)
(a) COMPLAINT (BNSS)
MEANING:
Allegation made to magistrate
that an offence is committed.
ESSENTIALS:
- Name & address of complainant
- Name of accused
- Facts constituting offence
- Date, place, time
- List of witnesses
- Prayer for issue of summons
SECTIONS:
- Sec. 2(h) BNSS – Complaint
- Sec. 210 – Cognizance
- Sec. 214 – Examination
CASE LAW: Pepsi Foods Ltd. (1998)
Judgment:
- Magistrate cannot mechanically issue summons.
(b) CRIMINAL MISC. PETITION
MEANING:
Petition seeking
procedural/interim relief.
ESSENTIALS:
- Title
- BNSS section invoked
- Grounds
- Affidavit
SECTIONS:
- Sec. 528 BNSS – inherent powers
(c) BAIL APPLICATION (BNSS)
MEANING:
Seeking release of accused.
ESSENTIALS:
- FIR details
- Grounds for bail
- No flight risk
- Undertaking
SECTIONS:
- Sec. 480, 481, 482, 483 BNSS
CASE LAW: Arnesh Kumar (2014)
Judgment:
- Arrest should be last resort.
(d) CRIMINAL APPEAL & REVISION
MEANING:
Appeal = challenge judgment
Revision = challenge legality
SECTIONS:
- Sec. 402–414 BNSS (Appeal)
- Sec. 420–426 BNSS (Revision)
III. CONVEYANCING
ESSENTIAL FEATURES OF A DEED
- Title
- Parties
- Recitals
- Testatum
- Consideration
- Operative Clause
- Covenants
- Habendum
- Schedule
- Signature & Attestation
CASE LAW:
DDA v. Durga Chand (1973)
- Document must be read as a whole.
1. SALE DEED
MEANING:
Transfer of ownership for a
price.
ESSENTIALS:
- Description of parties
- Property description
- Consideration amount
- Transfer of title
- Delivery of possession
- Indemnity
- Registration
LAW: Sec. 54 TPA
CASE LAW:
Suraj Lamp (2011) – GPA sale invalid.
2. MORTGAGE DEED
MEANING:
Transfer of interest as security
for loan.
ESSENTIALS:
- Mortgage amount
- Interest rate
- Property description
- Redemption clause
LAW: Sec. 58–77 TPA
3. LEASE DEED
MEANING:
Transfer of right to enjoy
property.
ESSENTIALS:
- Term
- Rent
- Rights & duties
- Conditions
4. GIFT DEED
ESSENTIALS:
- Donor & donee
- Voluntary transfer
- Property details
- Acceptance
5. PROMISSORY NOTE
ESSENTIALS:
- Promise to pay
- Certain sum
- Signed
6. POWER OF ATTORNEY
ESSENTIALS:
- Authority granted
- Scope
- Revocation clause
7. WILL
ESSENTIALS:
- Testator details
- Intent
- Property distribution
- Two witnesses
- Signature
8. AGREEMENTS
ESSENTIALS:
- Offer
- Acceptance
- Consideration
- Terms & conditions
- Signature
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