Role of Drafting and Pleadings in Indian Courts – A guide to effective Legal Drafting in Criminal Law (Part 1)

Introduction

Drafting in criminal law is the skill of carefully writing legal papers like complaints, FIRs, charge sheets, bail applications, and judgments. It is very important for the course of criminal proceedings because it accurately conveys the facts, accusations, and legal arguments. The importance of drafting comes from its ability to make sure that criminal procedures are carried out clearly, accurately, and in strict accordance with the law, which protects the rights of both the accused and the victims. It is very important to be clear and precise when drafting to avoid confusion that could lead to miscarriages of justice, delays in the process, or cases being thrown out. Moreover, Legally enforceable drafts also protect the integrity of the criminal justice system by making sure that charges are framed and decided on solid and well-reasoned grounds.

The Indian Penal Code of 1860 (IPC) and the Code of Criminal Procedure of 1898 (later CrPC, 1973) are the main laws that make up the criminal law framework in India. They were written during the colonial period and are still used to guide the writing of other legal documents. All of these laws work together to make sure that investigations, prosecutions, and trials are fair. So, efficient drafting is the foundation on which the whole criminal justice process, from investigation to trial and appeal, stands. These laws carefully spelled out both serious crimes and procedural protections. These codes, which were carefully written, formed the basis for a consistent criminal justice system throughout India.

With the passing of the Bhartiya Nyaya Sanhita, 2023 (BNS), Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bhartiya Sakshya Adhiniyam, 2023 (BSA), India began a new era of criminal law with the goal of modernizing and decolonizing it. These new laws highlight the ongoing importance of careful wording in defining offenses, outlining penalties, and expediting processes. Thus, drafting forms the foundation of procedural law by outlining the procedures for investigation, trial, and enforcement, as well as substantive criminal law by defining what crimes are and their repercussions. Its development mirrors India's transition from colonial codification to modern legislation suited to its societal and constitutional goals.

Foundational Principles of Criminal Drafting:

One of the most important facets of Indian legal practice is the drafting of criminal laws, where cases involving liberty, life, and fundamental rights can be decided by accuracy, clarity, and adherence to procedural requirements. The strategic synthesis of facts, law, and procedure to produce persuasive legal documents that effectively serve justice is the art and science of criminal drafting, which goes far beyond simple document preparation. The systematic process of developing, organizing, and presenting legal documents that adhere to statutory requirements while successfully conveying legal positions, arguments, and procedural requirements within the criminal justice system is known as legal drafting in criminal law.

Essential Skills Required for Criminal Drafting in following aspects:

1. Legal and procedural knowledge:

• Expertise in substantive criminal law:

  A. Thorough knowledge of the provisions of the Indian Penal Code (IPC) and their interpretations.

  B. Proficiency with specific criminal laws, such as the Information Technology Act, the Narcotic Drugs and Psychotropic Substances Act, and the Prevention of Corruption Act.

  C. Current knowledge of court rulings and changing legal doctrines, comprehension of constitutional clauses impacting criminal cases, and familiarity with evidence law and how it is used in criminal situations.

• Procedural Law Proficiency:

  A. A thorough understanding of the provisions of the Code of Criminal Procedure (CrPC) (now known as the Bhartiya Nagrik Suraksha Sanhita).

  B. Knowledge of trial procedures, including protocols for examination and cross-examination, as well as comprehension of investigation procedures and the documentation requirements associated with them.

  C. Knowledge of bail, anticipatory bail, and custody-related provisions; familiarity with appellate procedures and revision mechanisms.

2. Clarity in Legal Communication:

• Linguistic Precision:

  A. Employing clear language that removes room for misunderstandings.

  B. Preserving the required legal specificity while avoiding redundancy.

  C. Using legal terms appropriately, without using too much jargon.

  D. Make a clear distinction between legal conclusions and factual claims.

  
  

• Structural Clarity:

  A. Reasonable argumentation from premise to conclusion.

  B. Skilfull application of paragraph structure, headings, and sub headings.

  C. Proper order of legal analysis and factual narration.

  D. Making good use of citations and cross-references.

  
  

• Conceptual Clarity:

  A. A clear explanation of the position supported or the relief sought.

  B. A logical relationship between legal conclusions and factual allegations.

  C. Open communication of the evidence and its implications for the law.

3. Logical Structure and Organization:

• Hierarchical Organization:

  A. Identification and prioritization of primary issues, as well as the development of secondary and tertiary issues.

  B. Clearly define the difference between supplementary and essential content.

  
  

• Sequential Logic:

  A. Chronological presentation of events.

  B. The logical development of legal arguments.

  C. A logical inference drawn from the information provided.

  
  

• Coherence and Consistency:

  A. Harmonious incorporation of various legal sources.

  B. A logical connection between the various sections of the document.

4. Proficiency in Legal Language :

• Communication Effectiveness:

  A. Capacity to clearly and concisely explain intricate legal concepts.

  B. The ability to write persuasively while retaining objectivity as a professional.

  C. The ability to speak to a variety of audiences, including clients, judges, and opposing counsel.

  D. Proficiency in both English and vernacular legal languages where applicable.

5. Drafting as Synthesis of Facts and Law :

Legal drafting in criminal matters requires the sophisticated integration of factual circumstances with applicable legal principles to create documents that effectively serve their intended purposes.

• Factual Analysis and Selection:

  
  

  A. Comprehensive fact-gathering from multiple sources including witness statements, documentary evidence, and expert reports.

  B. Critical evaluation of fact reliability and admissibility under evidence law.

  C. Strategic selection of facts that support legal positions while addressing potential weaknesses.

  D. Chronological organization of events with attention to causation and temporal relationships.

  E. Integration of circumstantial evidence with direct evidence to create compelling narratives.

  
  

• Legal Framework Application:

  
  

  A. Identification of applicable statutory provisions and their elements.

  B. Analysis of relevant case law and judicial precedents.

  C. Assessment of constitutional implications and fundamental rights considerations.

  D. Evaluation of procedural requirements and compliance standards.

  
  

• Synthesis Techniques:

  
  

  A. Mapping factual elements to legal requirements with precision

  B. Development of alternative legal theories based on available facts

  C. Strategic emphasis on facts that strengthen legal positions

  D. Effective handling of adverse facts through legal analysis

  E. Creation of logical bridges between factual assertions and legal conclusions

Recent Developments and Contemporary Practice in Criminal Drafting: Navigating the New Legal Landscape

The landscape of criminal law in India has undergone a significant transformation with the implementation of three new criminal laws on July 1, 2024. The Bhartiya Nyaya Sanhita (BNS), Bhartiya Nagarik Suraksha Sanhita (BNSS), and Bhartiya Sakshya Adhiniyam (BSA) have replaced the colonial-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act respectively. This transition marks a crucial shift in criminal law drafting standards and practices, demanding legal professionals to adapt to new procedural requirements and digital reforms.

1. Impact of New Criminal Laws on Drafting Standards:

• Structural Changes in Criminal Law Drafting:

  
  

The new criminal laws have introduced substantial changes in drafting requirements. The BNS, with 358 sections compared to the IPC's 511 sections, represents a more streamlined approach to criminal law drafting. This consolidation requires legal practitioners to understand the new numbering system and cross-references between provisions. The BNS has added 20 new crimes while retaining core provisions on murder, assault, and other traditional offenses. However, it introduces new categories such as organized crime and terrorism under specific sections. These additions require careful drafting to ensure proper characterization of offenses and application of appropriate legal provisions.

• Key Provisions Affecting Drafting Standards:

Section 152 of BNS replaces the controversial Section 124A (sedition) of the IPC, creating new challenges in drafting charges related to acts endangering sovereignty, unity, and integrity of India. Legal practitioners must now frame charges under this reconfigured provision with greater precision. Section 197(d) of BNS introduces additional provisions related to speech that may endanger national security, requiring careful drafting to distinguish between legitimate criticism and punishable offenses. The BNSS introduces procedural changes that directly impact drafting requirements. The new code emphasizes digital processes and electronic documentation, requiring lawyers to adapt their drafting style to accommodate technological integration.

• Enhanced Focus on Digital Evidence:

  
  

The BSA has revolutionized the treatment of electronic evidence, expanding beyond the traditional scope of the Indian Evidence Act. Section 63 of the BSA now includes electronic records in semiconductor memories and extends applicability to "any communication device," broadening the scope significantly. This expansion requires legal practitioners to draft pleadings and evidence submissions with greater attention to digital documentation. The BSA's provisions aim to make electronic evidence production more efficient, but this demands new skills in drafting applications for digital evidence collection and presentation.

2. Adaptation to Digital and Procedural Reforms:

• Technological Integration in Legal Drafting:

  
  

The new criminal laws emphasize the use of technology in legal proceedings. Sections 265, 266, and 308 of the BNSS permit examination of witnesses through audio-video electronic means at designated places notified by state governments. This requires lawyers to draft applications and prepare witnesses for virtual proceedings. The integration of digital processes has made it necessary for legal practitioners to understand the technical requirements for electronic documentation. Drafting under the new laws must account for digital signatures, electronic filing systems, and virtual court proceedings.

• Forensic Evidence and Drafting:

Section 349 of the BNSS broadens the range of forensic samples that can be collected under magisterial orders. This includes fingerprints, voice samples, signatures, and handwriting from any person. Legal practitioners must now draft applications for forensic evidence collection with greater specificity about the type of samples required and their relevance to the case. The expansion of forensic evidence collection requires careful drafting to ensure compliance with procedural safeguards while maximizing the investigative potential of modern forensic techniques.

• Electronic Records and Documentation:

  
  

The BSA's treatment of electronic evidence requires fundamental changes in how legal documents are drafted. Unlike the previous system where electronic evidence was treated as secondary evidence, the new law provides for direct admissibility of electronic records under specific conditions. Legal practitioners must now draft applications for electronic evidence with detailed technical specifications about the storage, recording, and copying of digital information. This includes understanding the requirements for proving the authenticity and integrity of electronic records.

3. Contemporary Practice Challenges:

• Training and Skill Development :

  
  

The implementation of new criminal laws requires legal professionals to undergo comprehensive training in digital evidence handling and electronic documentation. Law firms and legal practitioners must invest in understanding the technical aspects of electronic evidence to draft effective pleadings. The shift from traditional paper-based documentation to digital processes requires lawyers to develop new skills in electronic filing, digital evidence presentation, and virtual court appearances. This technological adaptation is essential for effective legal drafting under the new criminal laws.

• Uniform Implementation Across Jurisdictions:

  
  

The new criminal laws require uniform implementation across all states and union territories. This creates challenges in drafting as legal practitioners must ensure their documents comply with both central legislation and local procedural requirements. The need for uniformity also extends to the interpretation of new provisions, requiring legal practitioners to stay updated with emerging judicial interpretations and precedents under the new laws.

Challenges and Common mistakes in Criminal Law Drafting:

Criminal law drafting in India faces numerous challenges that directly impact the administration of justice. With the recent introduction of new criminal laws and evolving judicial interpretations, legal practitioners must navigate complex requirements while ensuring accuracy and compliance. This article examines the key challenges in criminal law drafting and provides practical solutions for effective legal documentation.

1. Language Barriers and Regional Practices:

• The Multilingual Challenge:

  
  

India's linguistic diversity creates significant obstacles in criminal law drafting. Legal documents must often be translated between Hindi, English, and regional languages, leading to potential misinterpretation of crucial legal concepts. The key issues are:

A. Translation Errors: Technical legal terms may lose their precise meaning when translated. For instance, the concept of "mens rea" has no direct equivalent in many regional languages.

B. Cultural Context: Legal concepts rooted in English common law may not translate effectively to local cultural contexts.

C. Inconsistent Terminology: Different regions may use varying translations for the same legal term, creating confusion in inter-state cases.

2. Regional Practice Variations:

• Local Customs: Some regions incorporate local customs in criminal proceedings, which may conflict with statutory requirements.

• Court Practices: Different High Courts may have varying formats for similar documents, requiring lawyers to adapt their drafting styles.

• Language Preferences: While the Supreme Court operates in English, many lower courts prefer regional languages, necessitating bilingual drafting skills.

3. Drafting for Vulnerable Groups:

• POCSO Act Requirements:

  
  

The Protection of Children from Sexual Offences (POCSO) Act, 2012 demands specialized drafting techniques due to the sensitive nature of cases involving minors.

A. Special Considerations:

~ Child-Friendly Language: Section 35 of POCSO Act requires courts to use simple language that children can understand.

~ Privacy Protection: All documents must ensure the child's identity remains confidential as per Section 23.

~ Mandatory Reporting: Section 19 requires specific language in complaints filed by mandatory reporters.

~ Ensure compliance with Section 24 regarding in-camera proceedings.

• SC/ST Act Provisions:

  
  

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 requires precise drafting to establish the elements of caste-based discrimination.

A. Special Considerations:

~ Caste Certificate: Proper documentation of the victim's caste status.

~ Specific Offense Description: Clear articulation of how the offense falls under Section 3 of the Act.

~ Public Place Element: When applicable, detailed description of public humiliation as per Section 3(1)(r).

Case Law Reference: In Hitesh Verma v. State of Uttarakhand (2020), the Supreme Court emphasized that complaints under SC/ST Act must contain specific allegations and cannot be vague or general.

• Other Vulnerable Groups

  A. Women: Compliance with Section 154 CrPC for recording statements by female officers

  B. Differently Abled: Ensuring accessibility in legal documentation

  C. Elderly: Special consideration for cognitive limitations in statement recording.

Inadequate Training in Criminal Law Drafting:

1. Current Training Gaps:

   
   

Most law schools focus on theoretical aspects rather than practical drafting skills. Limited exposure to real-world criminal case documentation leads to commission of inaccuracies by the freshly graduated Advocates. Furthermore, reasons like Lack of continuing education programs for practicing lawyers, Limited access to specialized training in emerging areas like cyber crimes and Inadequate mentorship programs for junior lawyers become a major set-back for Advocates in the context of Criminal Law Drafting. In this regard, the Bar Council of India has taken initiatives like Mandatory continuing legal education (MCLE) programs, although these programs often lack practical drafting components and there is a need for specialized workshops on new criminal laws.

2. Common Drafting Mistakes and Best Practices :

• Common Ambiguity Issues:

A. Unclear Pronoun References:

~ Incorrect: "The accused and the witness were present when he made the statement."

~ Correct: "The accused and the witness were present when the accused made the statement."

B. Vague Time References:

~ Incorrect: "The incident happened recently."

~ Correct: "The incident occurred on 15th March 2024 at approximately 10:30 PM."

C. Imprecise Legal Terminology:

~ Incorrect: "The accused was involved in the crime."

~ Correct: "The accused committed the offense under Section 302 IPC."

• Redundancy Problems:

A. Repetitive phrases that add no legal value.

B. Unnecessary elaboration of well-established legal principles.

C. Non Mentioning of Mandatory disclosures leading to vagueness. For e.g. not mentioning the proper and relevant provisions of law under which the filing is being done or non-disclosure of material facts before the Hon’ble Court of Law.

Key Supreme Court Guidelines:

1. Arnesh Kumar v. State of Bihar (2014):

• Established guidelines for arrest procedures.

• Requires specific mention of necessity for arrest in complaints.

2. Lalita Kumari v. Government of UP (2014):

• Mandatory FIR registration requirements.

• Impact on complaint drafting standards.

3. Sushil Kumar Sharma v. Union of India (2005):

• Guidelines for dowry death cases.

• Specific requirements for Section 498A complaints.

  
  

The major takeaways from the above mentioned cases and many more such precedents are that all cases emphasize the need for specific, detailed allegations rather than vague statements, strict adherence to procedural requirements in all documentation and incorporation of constitutional safeguards in all criminal law drafting. Moreover, it is required that special consideration is given to victim’s rights and ensuring due process compliance in all criminal documentation. There should be clear establishment of jurisdiction and venue and adherence to statutory time limitations. At last, legal sufficiency in all criminal complaints and applications and adaptation to contemporary legal developments and social changes, must be ensured.