Dr Manju Antil (Counselling Psychologist and Psychotherapist)

 

India's Legislative Process

The Bharatiya Nyay Sanhita Bills to (replace CRPC), the Bhartiya Nagrik Suraksha Sanhita Bills to (replace IPC), and the Bhartiya Sakshya Bill to (replace Evidence Act) in August 2023 are the three Criminal Major Acts that Parliament has just introduced.

Additionally, the President has ratified Women Reservation Bills 2023 (106 Constitutional Amendment Bill).

Therefore, it is crucial to understand how Parliament enacts new legislation and amends current legislation, whether through the Constitution or any statute.

In practice, the government formulates legislative proposals, which are then subject to discussion and debate in parliament before receiving official approval.   All functions are executed via a sequence of processes.

 

Parliament is the starting point for all legislative ideas, which are presented in the form of Bills (as stated in Article 107).   A bill is a preliminary version of a legislative proposal.   The initiation of the process can be undertaken by either the government or any private member in either House of Parliament.   Bills can be broadly classified into two categories: government bills and private members' bills.   The Bills can be further categorized based on their substance into:

 

·         Common invoices

·         Money Bills pertain to their provisions concerning financial affairs, while Constitution Amendment Bills relate to changes in the constitution.

·         Common currency notes

 

Ordinary bills

encompass all bills that do not fall within the categories of constitutional amendment bills and money bills.

 

Procedures for enacting ordinary bills in the legislative branch

 

Drafting of Bills: Once a legislative proposal is conceived, the relevant ministry promptly assesses its political, administrative, financial, and other ramifications.   If other ministries or the State Government are also involved, their counsel is sought.   The legal and constitutional aspects are sent to the Ministry of Law and the Attorney General of India for consultation.   Once the plan has undergone comprehensive scrutiny from all perspectives, it is presented to the cabinet for approval. Upon receiving the cabinet's endorsement, the government's legal expert, along with department specialists and officials, transforms it into a formal law.   The Bill undergoes a thorough examination by the administrative machinery in collaboration with relevant authorities, and is subsequently finalized.

 

The bill is prepared to be presented to the house after this is completed.The relevant Minister may present it in either of the two houses. A minister must provide seven days' notice in order to request permission to present the bill.

 

The Three Readings

Before becoming an Act, a measure must pass through several stages in the Parliament. Every bill is read three times in each house: the first, second, and third readings.

·         First Reading: Typically, a bill's introduction, or First Reading, is merely a formality; no discussion takes place at this point. However, the Chairman may allow a thorough discussion in which the Attorney General may also take part if the introduction of a Bill is opposed on the grounds that the proposed law is outside the legislature's legislative authority. The House then gets to vote on the question. A minister may introduce as many bills as he like, as there is no cap on the total number of bills that may be introduced on any given day.

·         Second Reading: A bill undergoes the most thorough and important stage of its existence during this phase, when it is meticulously and minutely examined. There are two steps in the second reading.

·         The First Stage: In this stage, the bill is generally discussed, with an emphasis on its guiding principles rather than its specific provisions. At this point, the House has the option to send the Bill to the Joint Committee of the Two Houses or a select House committee, circulate it to get feedback, or just take it under review.

·         Committee Reference: A bill may be referred to a joint or select committee. The House members from which the bill originated are chosen to serve on the select committee. Members of a Joint Committee will be chosen by the presiding officer of the House in which the Bill was introduced. In this scenario, the ratio of members from the Lok Sabha to the Rajya Sabha will be 2:1. These are ad hoc committees that have been appointed to review specific measures that have been referred to them.

·         Bills can now be referred by either House or its presiding Officer to the new departmentally relevant Joint Standing committee of the two Houses, based on the subject matter of each Bill.

The Committee examines the Bills in a detailed manner, scrutinizing each clause, like the process followed by the House.   Members of the Committee could relocate amendments to different clauses.   The committee can gather testimony from specialists, associations, or public agencies who have a vested interest in the proposals.   Once the committee has reviewed and approved each clause, schedule, and other relevant documents, the Lok Sabha Secretariat compiles a report to be presented to the House.

Eliciting Opinions: If a motion to circulate the Bill in order to obtain opinions on it is approved, the Secretariat of the House will send letters to all State Governments and Union Territories, requesting them to publish the Bills in their official publications to invite opinions from local bodies, associations, individuals, or institutions that are relevant to the Bills.   The timeframe for gathering opinions is typically indicated in the motion for circulation of the Bills. However, if no specific date is mentioned, the State government is required to provide their opinion within 3 months following the passage of the motions.   Once the opinions have been collected, they are presented to the House and followed by a motion to submit the Bill to a select or joint committee.

Once the report of the Select or Joint Committee on a Bill has been delivered to the house, the Minister has the option to propose a move to consider the Bills as reported.

The second stage involves the consideration of the bill or the bill as reported by the Select/Joint committee, once the motion for its adoption has been approved. The bill is then examined and discussed clause by clause.   Each clause is individually presented to the House for separate deliberation.   As soon as a clause is presented to the House, modifications can be proposed, provided they meet the requirements for being considered.   The process of considering each clause individually is generally lengthy and arduous, as each house often discusses them independently and also deliberates on whether to adopt or reject each modification proposed by the House.

During the third reading, once all the provisions and schedules, if any, of the bill have been examined and voted on by the House, the Minister has the authority to propose that the law be approved.   Currently, the conversation is limited to presenting arguments either in favor of the Bill or against it, without delving into the specifics.   Given that the fundamental concepts of the Bills have already been approved and their specificities have been thoroughly scrutinized, the third reading rarely serves as an opportunity for further deliberation.

To pass the usual measure, a simple majority of the members who are present and voting is necessary.   In a parliamentary system when the government has a majority backing in the Lok Sabha, a government measure is almost certain to be easily passed.

After a measure has been approved by the originating house, it is sent to the other house for their agreement, along with a statement conveying this.   Once again, it progresses through all three levels.   The House that receives the Bills has the option to pursue either of the following courses of action.

·         It has the potential to completely reject it, resulting in an impasse between the two houses.

·         The Bills may be approved either in their current form or with modifications.   Once the Originating House approves it, the bill is delivered to the President for his approval.   If, however, the Bill is passed with alterations, it is then returned to the 1st House.   If the House concurs with the amendments provided by the other House, the Bill is said to have been passed, incorporating the amendments from both Houses.   If the House of origin does not comply with the alterations provided by the other House, the Bill is returned to the latter for its agreement.   A deadlock will occur if the House persists in its insistence on its changes.   If more than 6 months pass from the day the Bill is received, a deadlock is considered to have occurred.

Joint sitting of the Two Houses occurs when there is a standstill caused by disagreement between the two houses on a bill. This extraordinary scenario is handled by both chambers convening together.   The constitution grants the President the authority to convene a Joint Sitting of both houses in order to discuss and vote on a Bill, unless the Bill has already expired owing to the dissolution of the Lok Sabha.   A Joint sitting is chaired by the Speaker, who is supported by the Secretary General, in accordance with Article 118(4) of the Indian Constitution.   During the Joint Sitting, only amendments that are deemed essential as a result of the delay in passing the Bill can be submitted.   The decisions made during these sessions are determined by the majority of the combined membership of both Houses who are present and casting votes.   Therefore, the Lok Sabha, by virtue of its greater number, may possess a significant advantage.

Assent to Bills: Once a Bill has been approved by both the House, either individually or through a Joint sitting, it is submitted to the President for his or her formal approval.   If the President refuses to give his approval, the Bill will be terminated.   However, as the President is a constitutional figure who is obligated to follow the guidance of the Council of Ministers, it is unlikely that they would refuse to give their approval against the advice of their ministers. Nevertheless, the President has the authority to request additional information, clarification, or even reconsideration of the advice. In order to do so, they can return the Bill to the government, as stated in Article 74(2) and 78(b) of the Constitution. Once the President grants his assent, the Bill immediately transforms into an act.

Money Bills ( Art 110 Of Constitution)

As per the article, a bill is classified as a Money Bill if it exclusively includes provisions pertaining to any or all topics related to:

·         The imposition, repeal, remission, or change of any tax.

·         Governmental fiscal activities including the acquisition or utilization of funds.

·         The act of depositing or withdrawing funds from the consolidated Funds of India.

·         Designating a novel set of items as expenses, to be debited from the Consolidated Fund and

·         Any matter that is related to any of the matters stated in sub clause (a) to (f) of Article 110(1).

If there is any doubt regarding whether a Bill qualifies as a Money Bill, the Speaker's decision will be conclusive.

If the Lok Sabha has the option to either accept or reject any or all of the recommendations made by the Rajya Sabha, the money Bill will be considered as having been approved by both houses with revisions suggested by the Rajya Sabha and approved by the Lok Sabha.   If the Lok Sabha rejects any of the recommendations made by the Rajya Sabha, the Bill will be considered as accepted by both houses in the same form as it was passed by the Lok Sabha initially, before any amendments suggested by the Rajya Sabha.   In addition, if a money bill is approved and sent to the Rajya Sabha for its approval but is not returned to the Lok Sabha within 14 days, it will be considered as enacted by both houses after the 14-day period.   There is no possibility of disagreement between the two chambers over Money Bills, unlike Ordinary Bills, where the Rajya Sabha has equal power to the Lok Sabha.   Therefore, a Joint Sitting is not applicable for Money Bills.   The approval of a Money bill by the Rajya Sabha is essentially a procedural and customary matter.

Financial Bills encompass any legislation that pertains to the generation or allocation of funds.   To facilitate ease of understanding, let us classify Financial Bills into two distinct categories-

 

Category A refers to laws that include provisions related to any of the areas stated in Article 110 for money bills, but do not exclusively focus on those matters. An example of such a bill would be one that has a taxing clause, but also covers other topics.

 

Category B refers to bills that include provisions for spending from the Consolidated Fund.

 

Constitution Amendment Bills (Article 368 of the Constitution)

The initiation of a constitutional amendment can occur through the presentation of a Bill with the specific intention in either House of Parliament.   This type of legislation can be introduced either by the government or by an individual member of parliament.   Typically, Constitution (Amendment) measures are introduced in the Lok Sabha.

Articles of the Constitution have been categorised into 3 groups for purpose of amendment-

Articles amenable by simple majority.

Article which demands a special majority for the amendment. And

Articles which require a special majority as well as ratification by the legislatures of not less than one half of the States.

Amendment by Simple Majority : A Bill aiming to alter the following provisions of the Constitution requires just simple majority and such bills is not recognised to be a Constitution ( Amendment) Bill under Art 368 of the Constitution:

·         Admission or establishment of new states , formation of new states and adjustment of territories , boundaries or names of existing ones( Art 2,3,4 ).

·         Creation or removal of Legislative Councils in a State ( Art 169).

·         Administration and control of Scheduled areas and Scheduled Tribes ( para 7 of 5th Schedule) and

 

·         Administration of Tribal Areas( in the State of Assam, Meghalaya and Mizoram ( para 21 of 6th Schedule).

 

A legislative proposal offering   The introduction of new States and the modification of boundaries or names of existing States can only be initiated in either house of parliament at the President's recommendation.   Prior to issuing his recommendation, the President is required to submit the bill to the relevant state for input within the specified timeframe determined by him.   Nevertheless, he is not constrained by the established perspectives.

 

According to Article 169, if the Legislative Assembly of a state passes a resolution with a majority of at least two-thirds of the members present and voting, the Parliament has the authority to enact a law to either abolish or establish a Legislative Council in that state.   The Parliament has the authority to either approve or disapprove of the resolution, or it may choose to take no action on it.

An amendment to any provision of the Constitution requires approval by a Special Majority, which means it must be passed by a majority of the total members of the House and by at least two-thirds of the members present and voting.

In order to amend the Constitution, a bill must be approved by a special majority in both houses of Parliament and also ratified by the legislatures of at least half of the states. These legislatures must pass a resolution supporting the amendment before the bill can be presented to the President for approval. Article 368, paragraph 2

·         The election of the President is governed by Articles 54 and 55 of the constitution.

·         The scope of the executive authority of both the Union and the States is defined in Article 73 and Article 162.

·         The Supreme Court and the High Courts are established under Article 341, Chapter IV of Part V, and Chapter V of Part VI of the Constitution.

·         The allocation of legislative authority between the Union and the States.

·         Parliamentary representation of the States

·         The process for modifying the Constitution itself is outlined in Article 368.

 

The Constitution does not impose any certain timeframe for the States to indicate their ratification of the Constitution (amendment Bill) that is referred to them for this purpose.

Private Member's Bill: A member who wishes to propose a Bill must provide a notice of one month, unless the Speaker or Chairman, depending on the situation, permits introduction with a shorter notice period.   The notification must be accompanied with a duplicate of the Bill and a comprehensive Statement of Objects and Reasons.   If a Bill is expected to result in spending from Public money, a member attaches a memorandum to the Bill that provides an estimate of the associated expenditure.   The List of Private Members business for a specific day includes all the Bills that are scheduled to be introduced on that day, specifically those allocated to Private Members Bills.

 

In the Lok Sabha, bills that aim to modify the Constitution must undergo the usual rules that apply to Private member's Bills. Additionally, they must be reviewed by a Committee of the House called the Committee on Private Member's Bills and Resolutions. Only the bills that are recommended by the Committee are included in the List of Business for introduction.

 

In the Lok Sabha, once a Bill has been introduced and before it is discussed in the House, the Committee on Private Members Bills and resolutions categorises the Bills into two groups based on their nature, urgency, and importance.   Category A and Category B.   The relative precedence of Bills in a specific category is determined by Ballot in Lok Sabha.   The Bills are incorporated into the List of Business according to their priority as chosen by the Ballot.   Furthermore, the process by which a bill progresses is identical to that of a Government Bill in all other regards.

 

Over the past 33 years, there has been a complete absence of any Private member's Bill being enacted into law.   These are the Bills in this category that were enacted into law during the 18-year period of the two chambers of Parliament between 1952 and 1970.

 

·         The Code of Criminal Procedure Amendment Bills of 1953, which were enacted in 1956.

·         The Hindu Marriage Amendment Bill of 1963, which was enacted in 1964.

·         The Criminal Appellate Jurisdiction Bill of 1968, which expanded the authority of the Supreme Court, was successfully passed in 1970.

·         The Hindu Marriage Amendment Bill of 1956, which was enacted in 1956.

·         The IPC Amendment Bill of 1963 was enacted in 1969.

Each law must be authorised by the parliament as it is the sole entity that embodies the collective desires and intentions of the populace.   To fulfil its duty to the public, the government must enact legislation that addresses their social and economic requirements and aims to satisfy their desires and ambitions.