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.
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