What is Legal Drafting?

Drafting is one of the most important subjects from the point of view of legal and real practice. Drafting is an art as well as a science.

Writing is an art and should be developed only by self-practice and it cannot be accomplished by simply reading the books. How to draft is an art. It is only by virtue of a long practical experience that enables one to write articles, contracts, memorandum of understandings, good letters on different occasions, and legal matters.

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This subject of legal drafting is generally divided into four parts, namely:

General principles of civil pleadings
General principles of criminal pleadings
General principles of conveyancing and deeds and documents
Law of advocacy and professional ethics

In this subject, some basic terms such as Drafting, Pleadings, and Conveyancing, must be properly understood. Accordingly, the followings meanings need to be looked into:

The meaning of the word drafting is to draft or to draw up or to outline in the form of rough notes/ memos. According to the Civil Procedure Code, pleading means a plaint or a written statement. Therefore, all pleadings are written statements. It means to address the courts of law, as an advocate on behalf of the client. Pleadings mean formal written statements or replies/answers to the accusations made by the parties in legal action. The word conveyancing is to convey or to give somebody legal rights in real property which includes land and buildings. In short, it means a document conveying the property.

It is rightly said that the law is King of Kings and even the kings are subordinate to Dharma. And legal drafting is considered to be a Queen of that King.

It is necessary to draft legal documents either on litigious or non-litigious matters. These documents create rights and liabilities and are considered to be the means of effecting the transaction. Incorrect or improper drafting of conveyance can damage the interest of the client or may even affect his title to immovable property. It can be ruining the case of a litigating party. Strictly speaking, every legal professional/practitioner has to possess the art and skill of drafting. Here, it is most important to note that, the legal education of a student of law or a lawyer never ends. It is a continuous process. It is always a part of learning throughout not only the persons working in the field of law and law education, legal science, but for a common man also, till he breaths his last. Shakespeare has, therefore, rightly said that a man is a student of life and education never ends.

As has been rightly said by B. N. Rau, a great legal draftsman has said that the core principle of drafting is that one has to be polite in drafting but has to put the facts deadly. He had drafted constitutions of more than fifty countries in the world and significantly, he has also drafted our Constitution of India.

In drafting one has to be very sincere and serious about his/ her knowledge and love for the same. It is said that, the law is common sense but which is uncommonly found. One has to accomplish accurate and perfect knowledge and the practice of legal drafting. One has also to be not only serious but has to know the fundamentals and practices of legal drafting. One should always keep himself abreast of the latest knowledge about the facts and the circumstances concerning the subject. Vocabulary plays a very important role in the work of drafting. One has to correctly know the uses of indefinite, definite articles, omission of articles, tense, rules of grammar, etc.

The subject of legal drafting concerns the drafting of various types of notices, suits, written statements, written arguments, matrimonial petitions, appeals, writs, special leave petitions, civil applications, criminal complaints, applications, deeds, and documents, the law of advocacy and professional ethics.

Senior Adv. Madhav C. Khanwelkar

Legal Advisor, TMV, Deemed to be University, Pune

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