Law Making in India


Tue, Jul 16, 2019

PART-I

NAWIN KIRAN PRADHAN
M.A. (Pol. Sc), PG (Journalism & Mass Com.)
LLB, BA

Many of us in Sikkim are not aware of the law making in India. I sometimes hear people saying 2/3 majority and different theories of passing of Bills, legislations so on and so forth. If we are to make ourselves aware of our rights, it is very important for us to know how government functions and particularly, how laws are enacted and they come into force. In this write-up, I shall try in a brief to arrange as to the procedure of how laws are made in India.
India is a democracy having a Federal structure of government. Laws are made separately at different levels, by the Union Government/Federal Government for the whole country falling under the Union list of the Seventh Schedule and by the State Governments for their respective states as well as by local municipal councils at district level falling under the State List of the Seventh Schedule of the Constitution. In the case of the Concurrent List, both the Parliament and the State Legislature are empowered to legislate laws however if there are any issues relating the Concurrent List, Law enacted by the Parliament shall prevail.
The Legislative procedure in India for the Union Government requires that proposed bills pass through the two legislative houses of the Parliament of India, i.e. the Lok Sabha and the Rajya Sabha. The legislative procedure for states with bicameral legislatures requires that proposed bills be passed, at least in the state's Lower House or the Vidhan Sabha and not mandatory to be passed in the Upper House or the Vidhan Parishad. For states with unicameral legislatures, laws and bills need to be passed only in the state's Vidhan Sabha, for they don't have a Vidhan Parishad.
The process of addition, variation or repeal of any part of the constitution by the Parliament under its constituent powers, is called amendment of the constitution. The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds members are present and voted. In addition to this, certain amendments which pertain to the federal and judicial aspects of the constitution must be ratified by a majority of state legislatures. There is no provision for joint sitting of the two houses (Lok Sabha and Rajya Sabha) of the parliament to pass a constitutional amendment bill. Basic structure of the Indian constitution cannot be altered or destroyed through constitutional amendments under the constituent powers of the Parliament without undergoing judicial review by the Supreme Court. After the 24th amendment, parliament in its constituent capacity cannot delegate its function of amending the constitution to another legislature or to itself in its ordinary legislative capacity.
The legislative power of the states and the Centre are defined in the constitution and these powers are divided into three lists. The subjects that are not mentioned in any of the three lists are known as residuary subjects. Subject to the provisions in the constitution elsewhere, the power to legislate on residuary subjects, rests with parliament or state legislative assembly as the case may be per Article 245. Deemed amendments to the constitution which could be passed under legislative powers of Parliament, are no more valid after the addition of Article 368 (1) by 24th amendment.
Union list consists of 100 items (previously 97 items) on which the parliament has exclusive power to legislate.
State list consists of 61 items (previously 66 items) where state legislative assembly can make laws applicable in that state. But in certain circumstances, the parliament can also legislate temporarily on subjects mentioned in the state list, when the Rajya Sabha has passed a resolution with 2/3rd majority that it is expedient to legislate in the national interest per Articles 249 to 252 of the constitution.
Concurrent list consists of 52 (earlier 47) where both parliament and a state legislative assembly can make laws in their domains subject to Articles 254 of the constitution
Peoples Mandate and power of the legislature
The powers of a ruling party/co-alliance of the union is depending on the extent of the mandate it receives from the elections at central and state levels. These are
• commanding simple majority in the Lok Sabha only capable to run the government by passing money bills only. President cannot issue ordinances on advise of the union cabinet alone as there is possibility of Rajya Sabha not according its approval.
• commanding simple majority in the Lok Sabha and Rajya Sabha (together or separately) capable to run the government by its legislative powers only. With simple majority in Rajya Sabha, ruling party/co-alliance can remove the Vice President and elect a new vice president per Article 67(b)
• commanding two - thirds majority in both Lok Sabha and Rajya Sabha separately capable to run the government by its constituent and legislative powers. Ruling government has full powers to impeach the President and Judges of Supreme Court / High Courts when charges of violating the constitution are established by judicial enquiry.
• commanding two - thirds majority in either house of parliament capable to run the government by its legislative powers only. Per Article 61(3) or 124(4 & 5) or 217(1.b), the President and Judges of Supreme Court / High Courts can be forced by either of the house to establish violation of the constitution by a judicial inquiry so that when found guilty, president or a judge relinquishes their posts on moral grounds or other house may concur the opponent's impeachment proceedings on moral grounds.
At state level, simple majority in the legislative assembly (Vidhan Sabha) is enough to exercise all its constitutional powers except for deciding to have or abolish Legislative Council per Articles 169.
How a Bill becomes an act
Legislative proposals are brought before either house of the Parliament of India in the form of a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of Parliament and assented to by the President, becomes an Act of Parliament. As soon as the bill has been framed, it has to be published in the news papers and the general public is asked to comment in a democratic manner. The bill may then be amended to incorporate the public opinion in a constructive manner and then may be introduced in the Parliament by ministers or private members. The former are called government bills and the latter, private members' bills. Bills may also be classified as public bills and private bills. A public bill is one referring to a matter applying to the public in general, whereas a private bill relates to a particular person or corporation or institution. The Orphanages and Charitable Homes Bill or the Muslim Waqfs Bills are examples of private bills. A bill introduced in Lok Sabha pending for its approval, lapses when the Lok Sabha is dissolved.
Process in the House for the passing of a Bill
A Bill is the draft of a legislative proposal. It has to pass through various stages before it becomes an Act of Parliament. There are three stages through which a bill has to pass in one House of Parliament. The procedure is similar for the Legislative Assemblies of States.
First Reading
The legislative process begins with the introduction of a Bill in either House of Parliament, i.e. the Lok Sabha or the Rajya Sabha. A Bill can be introduced either by a Minister or by a private member. In the former case it is known as a Government Bill and in the latter case it is known as a Private Member's Bill. It is necessary for a member-in-charge of the Bill to ask for the leave of the House to introduce the Bill. If leave is granted by the House, the Bill is introduced. This stage is known as the First Reading of the Bill. If the motion for leave to introduce a Bill is opposed, the Speaker may, in his discretion, allow a brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Where a motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation outside the legislative competence of the House, the Speaker may permit a full discussion thereon. Thereafter, the question is put to the vote of the House. However, the motion for leave to introduce a Finance Bill or an Appropriation Bill is forthwith put to the vote of the House. Money/Appropriation Bills and financial bills can be introduced only in Lok Sabha per Articles 109, 110 and 117. Speaker of Lok Sabha decides whether a bill is Money Bill or not. Chairman of Rajya Sabha decides whether a bill is finance bill or not when the bill is introduced in the Rajya Sabha.
Publication in the official Gazette
After a Bill has been introduced, it is published in The Gazette of India. Even before introduction, a Bill might, with the permission of the Speaker, be published in the Gazette. In such cases, leave to introduce the Bill in the House is not asked for and the Bill is straight away introduced.
Reference of Bill to a Standing Committee
After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker of the Lok Sabha or the Chairman of the Rajya Sabha or anyone acting on their behalf) can refer the Bill to the concerned Standing Committee for examination and to prepare a report thereon. If a Bill is referred to a Standing Committee, the Committee shall consider the general principles and clauses of the Bill referred to them and make a report thereon. The Committee can also seek expert opinion or the public opinion of those interested in the measure. After the Bill has thus been considered, the Committee submits its report to the House. The report of the Committee, being of persuasive value, shall be treated as considered advice.
Second Reading
The Second Reading consists of consideration of the Bill which occurs in two stages.
First stage
The first stage consists of general discussion on the Bill as a whole when the principle underlying the Bill is discussed. At this stage it is open to the House to refer the Bill to a Select Committee of the House or a Joint Committee of the two Houses or to circulate it for the purpose of eliciting opinion thereon or to straight away take it into consideration.
If a Bill is referred to a Select/Joint Committee, the Committee considers the Bill clause-by-clause just as the House does. Amendments can be moved to the various clauses by members of the Committee. The Committee can also take evidence of associations, public bodies or experts who are interested in the measure. After the Bill has thus been considered, the Committee submits its report to the House which considers the Bill again as reported by the Committee. If a Bill is circulated for the purpose of eliciting public opinion thereon, such opinions are obtained through the Governments of the States and Union Territories. Opinions so received are laid on the Table of the House and the next motion in regard to the Bill must be for its reference to a Select/Joint Committee. It is not ordinarily permissible at this stage to move the motion for consideration of the Bill.
Second Stage
The second stage of the Second Reading consists of clause-by-clause consideration of the Bill as introduced or as reported by Select/Joint Committee. Discussion takes place on each clause of the Bill and amendments to clauses can be moved at this stage. Amendments to a clause have been moved but not withdrawn are put to the vote of the House before the relevant clause is disposed of by the House. The amendments become part of the Bill if they are accepted by a majority of members present and voting. After the clauses, the Schedules if any, clause 1, the Enacting Formula and the Long Title of the Bill have been adopted by the House, the Second Reading is deemed to be over.
Third and the last Reading
Thereafter, the member-in-charge can move that the Bill be passed. This stage is known as the Third Reading of the Bill. At this stage the debate is confined to arguments either in support or rejection of the Bill without referring to the details thereof further than that are absolutely necessary. Only formal, verbal or consequential amendments are allowed to be moved at this stage. In passing an ordinary Bill, a simple majority of members present and voting is necessary. But in the case of a Bill to amend the Constitution, a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting is required in each House of Parliament. If the number of votes in favour and against the bill are tied, then the Presiding officer of the concerned House can cast his/her vote, referred to as a Casting Vote Right.
(TO BE CONTINUED...)

 


Area: 7096 Sq Km
Capital:Gangtok
Altitude: 5,840 ft
Population: 6.10 Lakhs
Topography: Hilly terrain elevation from 600 ft. to over 28,509 ft above sea level
Climate:
Summer: Max- 21°C ; Min – 13°C
Winter: Max -13°C ; Min – 0.48°C
Rainfall: 325 cm per annum
Language Spoken: Nepali, Bhutia, Lepcha, Tibetan, English, Hindi