In this article, we will delve into a detailed discussion on how laws are made
in India, going beyond the simplified explanations commonly found online. The
legislative process, often seen as a straightforward sequence of steps, is far
more intricate and nuanced than what is typically presented. Understanding this
complexity requires an appreciation of each stage involved, from the proposal of
legislation to its eventual enactment.
While formal rules govern the legislative process, many practices have evolved
over time, becoming integral to how laws are framed, scrutinized, and passed.
These practices, solidified through official notifications, circulars, and
amendments, ensure a structured and consistent approach. Our exploration will
highlight the importance of these unwritten norms and the ways they interact
with the established rules to create a robust framework for law-making in India.
So this is how a law is made in India!
Introduction Of A Bill
In the legislative process in India, the responsibility for initiating proposals
lies with the Ministry or Department relevant to the subject matter of the
legislation (Rule 9.1). This ensures that the Department with the greatest
expertise and interest in the subject leads the drafting and legislative stages.
Before any drafting begins, a thorough consultation and review process is
followed, ensuring that the proposal is aligned with the administrative and
financial interests of the government.
The pre-drafting stage consists of several key sub-steps. First, the concerned
Ministry or Department formulates the legislative proposals by consulting all
relevant authorities and stakeholders from an administrative and financial
perspective (Rule 9.2(a)). This process focuses on whether the proposed
legislation is necessary and what essential elements must be included. However,
it does not involve drafting the technical legal language at this point.
Once the proposals are prepared, the matter is referred to the Ministry of Law
and Justice for consultation on the feasibility of the legislation from legal
and constitutional angles (Rule 9.2(b)). At this juncture, the Ministry of Law
and Justice provides broad advice on the desirability of the law, taking into
account existing legal frameworks and potential constitutional challenges.
Drafting
If the proposed law is considered feasible and desirable, the next step is the
approval of the Cabinet. The concerned Ministry/Department drafts a
self-contained note in collaboration with the Ministry of Law and Justice and
other relevant Departments (Rule 9.2(c)). Along with the note, the Ministry
sends an Office Memorandum to the Ministry of Law and Justice (Legislative
Department), outlining the agreed-upon legislative proposal. The Office
Memorandum must detail the legislative proposals, provide relevant background
information, and include a draft note for the Cabinet (Rule 9.2(d)). At this
point, the Ministry itself does not draft the Bill, leaving that responsibility
to the Ministry of Law and Justice.
The Ministry of Law and Justice (Legislative
Department) is tasked with drafting the Bill based on the materials provided,
usually within thirty days of receiving the proposal, unless clarifications are
required (Rule 9.3). During this period, discussions between the Ministry of Law
and Justice and the concerned Ministry/Department help clarify any remaining
issues. The draft Bill must follow a specific format. If the Bill contains more
than 25 clauses, a table of clauses should be included at the beginning (Rule
9.4(a)). Additionally, if the Bill is amending an existing law, relevant
sections from the original Act must be included for clarity (Rule 9.4(b)).
Once the Ministry of Law and Justice has prepared the draft, the concerned
Ministry scrutinises it and finalises the Note for the Cabinet (Rule 9.5). This
note is critical as it outlines the legislative proposals, emphasising the need,
scope, and objectives of the legislation. The Note for the Cabinet also includes
the views of other concerned Ministries/Departments and a summary of the
proposed legislation’s potential implications. Finally, the draft Bill itself is
attached as Appendix II for the Cabinet’s review and approval.
Once the Cabinet has approved a legislative proposal, the Ministry or Department
responsible must review the decision to ensure that no changes are needed in the
draft Bill submitted earlier (Rule 9.6). If any modifications are deemed
necessary following the Cabinet’s decision, the Ministry of Law and Justice
(Legislative Department) is consulted again to make the requisite changes in the
draft Bill. This process is done in collaboration with the concerned Ministry or
Department to ensure that the modifications align with the Cabinet’s directives.
However, if no changes are required in the Bill after the Cabinet’s approval,
the concerned Ministry proceeds with preparing several essential documents for
the Bill’s introduction in Parliament. First, the Statement of Objects and
Reasons must be drafted, which outlines the purpose and rationale behind the
Bill. This document is signed by the Minister in charge (PRO 8.1; RSR 62; LSR
65).
For more complex Bills, Notes on Clauses are attached to the Statement of
Objects and Reasons to provide detailed explanations for each clause. This helps
clarify the Bill’s intent and scope, particularly for technical or intricate
legislation.
In the case of Bills involving financial implications, a Financial Memorandum is
prepared in consultation with the Ministry of Finance (PRO 7.2, 7.3; RSR 64; LSR
69). This memorandum focuses on clauses that may result in government
expenditure and includes estimates for both recurring and non-recurring costs.
Clauses involving financial outlay are printed in thick type to draw attention
to them. Another key document is the Memorandum regarding Delegated Legislation,
which outlines the scope of the legislative powers being delegated through the
Bill. It also specifies whether the delegated powers are routine or
extraordinary in nature (PRO 8.4; RSR 65; LSR 70).
Once all these documents are prepared, they are shared with the Ministry of Law
and Justice (Legislative Department) for a final review before the Bill is
introduced in Parliament. This collaborative process ensures that the draft
Bill, along with its supporting documentation, is comprehensive, clear, and
fully aligned with the government's objectives.
Recommendations or previous sanctions from the President
After the steps outlined in para 9.6 have been completed, the Ministry or
Department concerned must obtain the necessary recommendations or previous
sanctions from the President before proceeding further with the Bill (Rule
9.7.1). These approvals are required for specific categories of legislation, as
mandated by the Constitution of India.
Firstly, the recommendation of the President is essential for introducing any
Bill that relates to the following (PRO 8.10, PRO 8.21-8.25):
- The formation of new States or the alteration of areas, boundaries, or
names of existing States, as stipulated under Article 3 of the Constitution.
- Matters listed under Article 110(1)(a)-(f), which pertain to money
Bills, as per Article 117(1).
- The imposition or variation of any tax or duty in which the States have
an interest, under Article 274.
Moreover, the previous sanction of the President must be sought for Bills that
include provisions concerning the language to be used for official purposes, as
referred to in Article 348(1). Additionally, if the Bill involves any
expenditure from the Consolidated Fund of India, the President’s recommendation
is required under Article 117(3) (PRO 8.22). Notably, the recommendation for
expenditure-related Bills must be obtained separately for each House of
Parliament.
To obtain these approvals, the Ministry or Department submits a detailed,
self-contained note to the President through the Minister (PRO 8.23). This note
includes a copy of the Cabinet’s decision and the draft Bill, providing a
comprehensive overview of the proposed legislation (Rule 9.7.2).
Once the recommendation or previous sanction of the President has been obtained,
it is communicated through a letter from the Minister to the Secretary General
of the Rajya Sabha or Lok Sabha. This communication follows the format laid out
in Annex 7 (Rule 9.7.3).
Finally, to ensure that no procedural or constitutional objections arise, the
Ministry or Department must prepare a detailed submission for the Minister’s
review. This submission follows the format specified in Annex 8 (Rule 9.7.4). By
adhering to these guidelines, the Ministry or Department ensures that the
legislative process proceeds smoothly and in compliance with constitutional
requirements.
To ensure that the legislative programme for a session is properly organised,
the concerned Ministry or Department must send detailed particulars about the
Bills they plan to introduce to the Ministry of Parliamentary Affairs. This
information, in the format provided in Annex 1, should be submitted at least one
month before the start of the session (Rule 9.8). This step allows the Ministry
of Parliamentary Affairs to draw up a comprehensive legislative agenda.
House In Which Bill Is To Be Introduced
When deciding in which House to introduce a Bill, specific constitutional
provisions must be considered. Bills that fall under Article 109 and those
dealing with money matters, as stipulated in Article 110(1) and Article 117(1),
are required to be introduced in the Lok Sabha. For other types of Bills, the
appropriate House for introduction is determined in consultation with the
Ministry of Parliamentary Affairs (Rule 9.9).
Once the Bill is finalised, the Ministry of Law and Justice (Legislative
Department) sends it to the Government of India Press to obtain a proof copy for
review (Rule 9.10.1). After receiving the proof copy, the Ministry of Law and
Justice is responsible for scrutinising it. They will then authenticate two
proof copies in both English and Hindi and send these to:
- The Secretariat of the House in which the Bill will be introduced,
and
- The Ministry of Parliamentary Affairs (PRO 8.12, Rule 9.10.2).
The Rajya Sabha or Lok Sabha Secretariat will print the Bill at every stage and
simultaneously send copies to the administrative Ministry or Department and the
Legislative Department for scrutiny. The administrative Ministry or Department
must return the scrutinised Bill within one day to allow the Legislative
Department to incorporate any corrections and send the final copy to the
Secretariat (Rule 9.10.3).
Once the Bill is finalised, the Rajya Sabha/Lok Sabha Secretariat circulates the
copies of the Bill to the members, including any errata if necessary (PRO 8.20,
Rule 9.10.4). If additional copies are required by the Ministries or
Departments, a requisition in form S.99 should be sent to the Rajya Sabha or Lok
Sabha Secretariat before the proof copy is transmitted to the press (PRO 8.20,
Rule 9.10.5).
A similar procedure applies for obtaining additional copies of reports from the
Select Committee, Joint Committee, or Standing Committee on Bills. The
requisition for such copies must be made well in advance of the date on which
the report is to be presented (PRO 8.28, Rule 9.10.6).
Procedure For Introducing The Bill In The House
Finally, the concerned Ministry or Department must prepare a notice of the
motion for introduction of the Bill, which is to be signed by the Minister. This
notice, in the format provided in Annex 9, should be sent to the Secretary
General of the Rajya Sabha or Lok Sabha, with a copy to the Ministry of
Parliamentary Affairs. Along with the notice, a printed copy of the Bill, duly
authenticated by the Minister, must be submitted to the Secretariat of the House
where the Bill is to be introduced (Rule 9.11.1).
Under the directions of the Chairman/Speaker, certain timelines and procedural
requirements must be adhered to for introducing official Bills in Parliament:
- A minimum of seven days' notice is required for introducing an
official Bill in the Lok Sabha, while five days' notice is necessary for the Rajya Sabha (SD
19A, PRO 8.14, Rule 9.11.2(a)).
- Additionally, no Bill may be introduced in either House until
its copies have been made available to the members at least two days
prior to the proposed date of introduction (SD 19B, PRO 8.13, Rule
9.11.2(b)).
If an exemption from these directions is required, the responsible Minister must
provide a full explanation and request the Chairman/Speaker to waive the
requirements. For example, in the Rajya Sabha, a memorandum must be submitted
with reasons explaining why the Bill is to be introduced earlier than the
two-day requirement (Chairman Direction 20B). In the Lok Sabha, the Minister
must confirm that the leaders of various parties have been consulted and that
they have no objection to waiving the requirement (Rule 9.11.3). In such cases,
the concerned Ministry/Department must forward a significant number of copies
(300 in English and 100 in Hindi for Rajya Sabha; 500 in English and 300 in
Hindi for Lok Sabha) of a memorandum, duly authenticated by the Minister, to the
respective Secretariat for circulation (Annex 10).
Once a Bill is ready for introduction, it is scheduled for discussion on the
date provided by the Ministry of Parliamentary Affairs and subsequently
published in the Gazette of India by the Rajya Sabha/Lok Sabha Secretariat (Rule
9.11.4). In certain cases, the Minister may request early publication of the
Bill in the Gazette, prior to its formal introduction. If permitted by the
Chairman/Speaker, the Bill will be introduced without seeking leave from the
House. Should the Bill undergo changes before its formal introduction, the
procedures outlined in Rule 9.11.1 will apply (PRO 8.7, RSR 61, LSR 64, Rule
9.11.5).
Departmentally Related Parliamentary Standing Committees examine Bills referred
to them by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha,
excluding Bills such as Appropriation Bills, Finance Bills, Bills replacing
Ordinances, and trivial Bills. These committees may take a significant time to
present their reports, sometimes extending beyond a single session. If there is
urgency, the Minister may request the Presiding Officer not to refer the Bill to
a Standing Committee so it can be considered and passed during the ongoing
session (RSR 270, LSR 331, Rule 9.11.6).
When a Bill is referred to a Standing Committee, the concerned
Ministry/Department reviews the committee's report. If the Ministry wishes to
make amendments based on the committee's recommendations, it must obtain Cabinet
approval. Following approval, the Ministry prepares the notice of motion for
amendments and submits it, along with the notice for consideration and passing
of the Bill, to the Secretary-General of the concerned House, with copies sent
to the Ministry of Parliamentary Affairs and the Ministry of Law and Justice
(Legislative Department) (Rule 9.11.7).
Motions After Introduction And Withdrawal
After the introduction of a Bill in Parliament, the Minister responsible may
take several actions by sending a notice to the Secretary-General of Rajya Sabha
or Lok Sabha. This notice, based on the appropriate form from Annex 11, 12, 13,
or 14, will indicate the Minister's intention to either move that the Bill be
taken into consideration and passed, referred to a Select Committee of the
House, referred to a Joint Committee of both Houses (except in the case of
certain Bills mentioned under Rule 9.7.1(a)(ii)), or circulated for eliciting
public opinion. These motions provide flexibility in the legislative process,
ensuring that all necessary procedures are followed for a Bill’s thorough
examination before passing (Rule 9.12; RSR 69, LSR 74).
In cases where it becomes necessary to withdraw a Bill, the Ministry of Law and
Justice and the Ministry of Parliamentary Affairs will first be consulted, and
Cabinet approval will be sought. However, if time constraints prevent obtaining
prior Cabinet approval, the responsible Minister may take the decision in
consultation with the Prime Minister.
Afterward, a note will be submitted for ex
post facto approval of the Cabinet. The form of notice for withdrawing the Bill
depends on the stage the Bill has reached, such as whether it has already passed
one House and is pending before the other. Appropriate forms from Annex 15 and
16 are used for this purpose, and the Minister must provide a statement (in both
English and Hindi) explaining the reasons for withdrawal. This statement must
reach the Secretariat at least five days before the motion for withdrawal is
made. Additionally, 300 copies in English and 100 copies in Hindi are required
for the Rajya Sabha Secretariat, while the Lok Sabha Secretariat requires 650
copies in English and 350 copies in Hindi for circulation (Rule 9.13; RSR 118,
LSR 110, SD 36, PRO 8.33).
Select/Joint Committee : Composition, Role And Procedure
The process for referring a Bill to a Select or Joint Committee begins with the
Ministry or Department concerned determining the strength of the committee and
the deadline for the submission of its report. The Ministry of Parliamentary
Affairs suggests the names of the members to be appointed to the committee.
These details are incorporated into the motion, which is drafted using the form
provided in Annex 12 or 13. If the Bill is proposed to be referred to a Joint
Committee, a concurrence motion is introduced in the other House using Annex 17
once the first House has passed the motion (Rule 9.14.1).
Once the Select or Joint Committee is constituted, the Chairman of the committee
is appointed by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha.
The Secretariats of the respective Houses manage all matters related to the
meetings of the committees. Although a Minister may not be a member of the
committee, they may address it with the permission of the Chairman (Rule 9.14.2;
RSR 76, LSR 299).
Any Government amendments to Bills referred to the Select or Joint Committee are
drafted by the Ministry of Law and Justice (Legislative Department). These
amendments are submitted by a Minister who is a member of the committee, using
the form in Annex 18 and must be given to the Rajya Sabha or Lok Sabha
Secretariat at least a day before the meeting where the amendments are to be
considered (Rule 9.14.3; PRO 8.26). When a Bill is to be circulated for public
opinion, the necessary actions, including communicating with State Governments,
are handled by the Rajya Sabha or Lok Sabha Secretariat (Rule 9.15; SD 20-23).
After the Select or Joint Committee presents its report, the Minister in charge
may give notice of their intention to move one of the following motions: that
the Bill, as reported by the committee, be taken into consideration and passed;
that it be recommitted to the same committee or another committee; or that it be
recirculated for further public opinion (Rule 9.16; RSR 93, LSR 77). Once the
motion for consideration is carried, the Bill proceeds to clause-by-clause
consideration, during which Members can propose amendments (Rule 9.17).
Amendments
Any amendments proposed by Members are sent by the Secretariat to the Ministry
or Department concerned, which then prepares briefs for the Minister to review.
Government amendments are also moved during this stage, drafted by the Ministry
of Law and Justice (Legislative Department) in consultation with the relevant
administrative Ministry or Department. These amendments, once approved, are
submitted to the Secretary-General, along with copies of the notice sent to the
Ministry of Parliamentary Affairs and the Ministry of Law and Justice (Rule
9.18.1-9.18.2).
For amendments that fall under Articles 117(1) or 274 of the Constitution, the
same requirements regarding the President's recommendation or previous sanction
apply as with the Bills that fall under these articles, except when amendments
under Article 117(1) involve the reduction or abolition of a tax (Rule 9.18.3).
When there is time, proposals to amend a Bill's provisions must be submitted to
the Cabinet for approval. If time is short, the responsible Minister may make a
decision after consulting the Prime Minister, followed by submitting a note for
ex post facto approval by the Cabinet (Rule 9.18.4).
Once a Bill is passed by one House of Parliament, several procedures follow to
ensure its scrutiny, transmission, and eventual enactment. Firstly, the Ministry
of Law and Justice (Legislative Department) undertakes a detailed scrutiny of
the Bill. A copy of the Bill as passed is sent by the Secretariat of the Rajya
Sabha or Lok Sabha to the Ministry for the purpose of correcting any patent
errors and making necessary amendments as a result of changes accepted during
the parliamentary process. Only those changes that have been accepted by the
Chairman or Speaker are incorporated before the Bill is transmitted to the other
House for concurrence. This process ensures consistency and accuracy in the
final legislative text (Rule 9.19; PRO 8.29, SD 34).
Consideration Of The Bill In The Other House
Once the Bill is tabled in the other House, the concerned Minister must give
notice of a motion, as outlined in Annex 20. This motion is submitted to the
Secretary-General of the House, and, when necessary, the Minister also
communicates the President’s recommendation. At this stage, if the Bill was
passed by the first House with amendments, the Ministry or Department
responsible for the Bill assesses whether consequential changes are needed in
the Financial Memorandum or the Memorandum on Delegated Legislation.
If such
changes are required, a formal letter, as per Annex 21, is sent by the Minister
in charge to the Secretary-General of the respective House. These revisions are
prepared in consultation with the Ministry of Finance and the Ministry of Law
and Justice (Legislative Department), ensuring all necessary adjustments are
made (Rule 9.20.1; RSR 122, LSR 115).
It is important that all official communications related to legislative business
reach the Rajya Sabha or Lok Sabha Secretariats by 6:00 p.m. on the day prior to
the scheduled business. This time limit ensures that all required materials and
notices are processed in time for parliamentary discussions or decisions (Rule
9.20.3).
Once the Bill has been passed by both Houses, the process of further scrutiny
and assent begins. The Secretariat sends a copy of the Bill to the Ministry of
Law and Justice (Legislative Department) for a final check to correct any
remaining patent errors. After this, the Bill is reprinted on azurelaid paper by
the Secretariat, with the superscription stating "as passed by the Houses of
Parliament." It is then returned to the Ministry of Law and Justice for another
review to ensure all changes have been properly incorporated (Rule 9.21(a) and
(b); SD 34, RSR 135, LSR 128).
Following this, the Secretariat submits two signed copies of the Bill, along
with ten additional copies, to the Secretary to the President via the Ministry
of Law and Justice (Legislative Department). The signed copies bear the
signature of the Chairman or Speaker. If the President’s assent is required by a
specific date, the concerned Ministry, the Ministry of Law and Justice, and the
Ministry of Parliamentary Affairs are notified well in advance to ensure the
timely granting of assent. The Ministry of Law and Justice also maintains
communication with the President's Secretariat throughout this process (Rule
9.21(c), (d); PRO 8.32).
The moment the President grants assent to the Bill, it becomes an Act. The date
of the President’s assent is crucial as it marks the official enactment of the
legislation. This date is communicated to the Ministry responsible for the Bill
and to the Ministry of Parliamentary Affairs by the Ministry of Law and Justice.
One signed copy of the Act is retained by the Ministry of Law and Justice, while
another is returned to the Secretariat of the respective House. A spare copy is
kept by the President’s Secretariat for their records (Rule 9.21(e)).
Publication In The Official Gazette
Following the enactment of the Bill, the Ministry of Law and Justice
(Legislative Department) ensures the Act is published in the Gazette of India
Extraordinary. Copies of the Act are also sent to State governments for
publication in their Official Gazettes. Moreover, the Ministry ensures that
copies of the Act are printed in a suitable form for sale to the general public,
facilitating widespread access to the newly enacted law (Rule 9.22; SD 34).
Procedure Regarding Private Member’s Bill
When a Private Member of Parliament wishes to introduce a Bill, they must first
provide notice of their intention. Upon receiving this notice, the Rajya Sabha
or Lok Sabha Secretariat forwards a copy of the Bill to the relevant Ministry or
Department for review. This ensures that the proposed legislation undergoes
thorough scrutiny from the start (Rule 9.23.1).
Following this, the concerned Ministry or Department consults with the Ministry
of Law and Justice to confirm whether Parliament has the constitutional
competence to enact the proposed measure. This step ensures that the Bill aligns
with constitutional principles and jurisdictional authority, preventing legal
challenges at a later stage (Rule 9.23.2).
The Government’s policy on the Bill is then settled within the Ministry or
Department handling the matter, with approval from the Cabinet Committee on
Parliamentary Affairs. The provisions governing this process are based on
earlier guidelines, ensuring consistency and procedural correctness (Rule
9.23.3). The President’s recommendation for introducing or considering Private
Members’ Bills, as required by Article 117(1) and/or (3) of the Constitution, is
typically granted unless exceptional circumstances dictate otherwise. Should a
Ministry feel that such a recommendation should be withheld, they must provide a
detailed brief explaining the rationale, and this must be approved by the
Cabinet Committee on Parliamentary Affairs (Rule 9.23.4).
Ordinances
In cases involving the promulgation of Ordinances under Article 123(1) of the
Constitution, the procedure mirrors that for Bills, applied mutatis mutandis.
After the draft terms of an Ordinance have been settled in consultation with the
relevant Ministry or Department, the Ministry of Law and Justice (Legislative
Department) submits the final draft through the Minister of the concerned
Ministry and the Prime Minister, for the President's signature. Along with the
draft, a spare copy, a Cabinet Note, and the decision of the Cabinet are
included in the submission (Rule 9.24.1 and 9.24.2).
Once the Ordinance is signed by the President, the concerned Ministry or
Department must inform the Legislative Department of the exact time and date
when the Ordinance was delivered to the President’s Secretariat. This ensures
transparency and an official record of the promulgation process (Rule 9.24.3).
Following promulgation, the Ministry of Law and Justice ensures that the
Ordinance is published in the Gazette of India Extraordinary. They also inform
the relevant Ministry, the Ministry of Parliamentary Affairs, and all State
governments so that the Ordinance can be published in their respective Official
Gazettes. This is a vital step for ensuring public access and awareness of the
new legislative measure (Rule 9.24.4; Post-promulgation action).
Post-Promulgation Action
Once the Ordinance is promulgated, several post-promulgation actions are
required. The Ministry of Law and Justice must supply seventy-five copies of the
Hindi and English versions of the Ordinance to the Ministry of Parliamentary
Affairs, for laying on the Table of the Houses. Additionally, five copies are
provided to the Rajya Sabha or Lok Sabha Secretariat (Rule 9.25(a)). The
concerned Ministry must also indicate whether the Ordinance will be replaced by
an Act of Parliament, ensuring that copies of the Ordinance are circulated to
Members of Parliament for their review (Rule 9.25(b)).
If it is decided to replace the Ordinance with an Act, the Ministry must ensure
the related Bill is ready for introduction at the earliest possible date,
ideally on the opening day of the session. Moreover, the Ministry, in
consultation with the Ministry of Law and Justice, prepares a statement
explaining the circumstances that led to the need for the Ordinance. This
statement is laid on the Table of the House and circulated to Members alongside
the Bill (Rule 9.25(c) and (d); RSR 66, LSR 71).
In situations where the Ordinance contains provisions from a Bill already
pending before the House, a statement must be prepared, again in consultation
with the Ministry of Law and Justice. This statement explains the urgency that
necessitated legislation through the Ordinance and is presented to the House at
the start of the following session (Rule 9.25(e); RSR 66, LSR 71).
Legislation In Respect Of Union Territories
Under Article 246(4) of the Constitution, Parliament is granted the authority to
legislate on matters concerning Union Territories, which are listed in the First
Schedule of the Constitution (Rule 9.26.1). The process of legislation in these
Union Territories varies depending on their governance structures.
Among the Union Territories, Puducherry has a Legislative Assembly established
under the Government of Union Territories Act, 1963. This Assembly holds
legislative powers on subjects listed in List II (State List) and List III
(Concurrent List), as applicable to Union Territories (Rule 9.26.2(a)). The
Union Territories of Andaman and Nicobar Islands, Chandigarh, Daman and Diu,
Dadra and Nagar Haveli, and Lakshadweep are each supported by an Advisory
Committee, which is overseen by the Ministry of Home Affairs (Rule 9.26.2(b)).
The National Capital Territory (NCT) of Delhi also has a Legislative Assembly
under Article 239AA of the Constitution, combined with the Government of
National Capital Territory of Delhi Act, 1991. This Assembly has similar
legislative powers on matters listed in List II (State List) and List III
(Concurrent List), except for specific entries (Entries 1, 2, and 18 of the
State List, and Entries 64, 65, and 66 of that List as they relate to the said
entries) (Rule 9.26.2(c)).
When Parliamentary legislation is proposed for Union Territories, it is
initiated by the Ministry or Department concerned, which must first consult with
the Ministry of Home Affairs to determine the desirability of the legislation.
This consultation includes discussions on the principles of the proposed
legislation and its more significant provisions. The Ministry of Law and Justice
(Department of Legal Affairs) is also consulted to ensure constitutional and
legal validity (Rule 9.27.1).
Following this, the Ministry or Department proceeds to consult other Ministries
or Departments that may have an interest in the subject matter of the
legislation. The matter is then referred to the Ministry of Law and Justice
(Legislative Department) for drafting a Bill. If the subject matter falls under
entries in List II (State List) or List III (Concurrent List), the Bill is sent
to the Ministry of Home Affairs for obtaining the views of the Advisory
Committee, provided the Union Territory in question has such a committee (Rule
9.27.2).
Once the consultations are complete, the Ministry or Department takes steps to
secure the approval of the Cabinet. The proposed legislation is then introduced
in Parliament, following the established procedure for central legislation (Rule
9.27.3). This ensures that the legislative process for Union Territories is
carefully aligned with the broader parliamentary and constitutional framework,
safeguarding both the interests of the Union Territories and the integrity of
the legislative process.
Legislation By The Legislative Assemblies
Article 246(4) of the Indian Constitution grants Parliament the authority to
legislate on matters concerning Union Territories, as listed in the First
Schedule of the Constitution. Union Territories in India have varying degrees of
legislative powers based on the specific provisions governing them. For
instance, Puducherry, under the Government of Union Territories Act, 1963,
enjoys a Legislative Assembly with the power to legislate on subjects listed in
the State List (List II) and the Concurrent List (List III) to the extent these
matters apply to Union Territories (Rule 9.26.1, ).
On the other hand, Union
Territories such as Andaman and Nicobar Islands, Chandigarh, Daman and Diu,
Dadra and Nagar Haveli, and Lakshadweep are managed with the assistance of
Advisory Committees established by the Ministry of Home Affairs (Rule 9.26.2).
The National Capital Territory (NCT) of Delhi, as per Article 239AA of the
Constitution and the Government of National Capital Territory of Delhi Act,
1991, also has a Legislative Assembly with similar legislative powers, barring
certain key areas like police, land, and public order (Rule 9.26.2(c)).
When it comes to proposing Parliamentary legislation concerning Union
Territories, the concerned Ministry or Department initiates the proposal by
consulting the Ministry of Home Affairs on the necessity and principles
involved, and the Ministry of Law and Justice (Department of Legal Affairs) for
constitutional and legal viewpoints (Rule 9.27.1).
After these consultations,
other relevant Ministries are brought into the discussion depending on the
subject of the proposed legislation. The Ministry of Law and Justice
(Legislative Department) is then tasked with drafting the Bill (Rule 9.27.2).
Additionally, if the matter pertains to entries in the State or Concurrent List,
and it affects Union Territories with Advisory Committees, the Ministry of Home
Affairs seeks the views of these Committees before finalizing the Bill (Rule
9.27.2(c). Once the draft Bill has undergone all necessary consultations, it is
submitted for Cabinet approval before being introduced in Parliament (Rule
9.27.3).
For the Union Territory of Puducherry, Section 3 of the Government of Union
Territories Act, 1963, specifies the constitution of its Legislative Assembly.
According to the Rules of Business of Puducherry, the Administrator must refer
certain Bills to the Central Government for prior approval. These include Bills
that require the President’s consideration under Sections 21 or 25 of the said
Act, matters listed in the Concurrent List, provisions invoking Article 304 of
the Constitution, Bills requiring additional financial assistance from the
Central Government, issues related to universities, and those affecting the
interests of minorities, Scheduled Castes, or Scheduled Tribes (Rule 9.28.1, ).
References for prior approval of such Bills are handled by the Ministry of Home
Affairs, except where Article 304 is involved, in which case the Department of
Commerce, in consultation with the Ministry of Home Affairs, takes charge (Rule
9.28.2, ). All references are also scrutinized by the Ministry of Law and
Justice and other relevant Departments.
Similarly, Section 3 of the Government of National Capital Territory of Delhi
Act, 1991, establishes the legislative framework for Delhi. Under the Business
Rules for the NCT of Delhi, the Lieutenant Governor must refer certain Bills to
the Central Government before they are passed. This is necessary for Bills that
require the President’s consideration under Article 239AA(3)(c) of the
Constitution or Section 24 of the Act, and Bills related to financial
provisions, such as additional financial assistance from the Central Government
or changes to tax rates (Rule 9.29.1).
Additionally, the Lieutenant Governor is
required to refer matters that affect the relationship between the Central
Government and State governments or the judiciary, the appointment of key
officials such as the Chief Secretary or Commissioner of Police, or any issues
likely to affect peace and security in the NCT of Delhi (Rule 9.29.2). Similar
to the procedure in Puducherry, these references are processed in consultation
with relevant Ministries and the Ministry of Law and Justice (Rule 9.29.3).
In the final step, once Bills from the Legislative Assemblies of Puducherry or
Delhi are passed and reserved by the Administrator for the President's
consideration, the Ministry of Home Affairs takes over the process. These Bills
are submitted to the President after consultation with the Ministry of Law and
Justice and other relevant Ministries (Rule 9.30).
In Union Territories like
Puducherry and the National Capital Territory of Delhi, the Lieutenant Governor
is vested with the power to promulgate Ordinances under specific constitutional
provisions. Article 239B of the Constitution governs Puducherry, while for
Delhi, Article 239AA(8), read with Article 239B, applies. However, before any
Ordinance can be issued, prior instructions from the President are mandatory.
The procedural guidelines set forth in Rules 9.28 and 9.29 for Bills will apply
here as well, with necessary modifications to fit the context of Ordinances.
Moreover, under various enactments concerning Union Territories, the Central
Government holds the authority to extend any State legislation to these
territories through notifications. This applies to Chandigarh, Dadra and Nagar
Haveli, Delhi, Daman and Diu, and Puducherry. The Ministry of Home Affairs, in
consultation with the Ministry of Law and Justice and other relevant Ministries,
examines and processes all such proposals. This may also include consultations
with the administration of the respective Union Territory, if deemed necessary.
Article 240 of the Constitution empowers the President to promulgate Regulations
for the peace, progress, and good governance of certain Union Territories,
including Andaman and Nicobar Islands, Dadra and Nagar Haveli, Daman and Diu,
Lakshadweep, and Puducherry. However, this authority in Puducherry can only be
exercised when its Legislative Assembly is either dissolved or suspended. The
Ministry of Home Affairs is responsible for initiating such proposals. After
these proposals receive Cabinet approval, they are finalized by the Legislative
Department and subsequently submitted to the President via the Minister of Home
Affairs.
Specific legal provisions also govern the extension of laws in individual Union
Territories, such as:
- Section 87 of the Punjab Reorganisation Act, 1966, for Chandigarh.
- Section 10 of the Dadra and Nagar Haveli Act, 1961, for Dadra and Nagar Haveli.
- Section 2 of the Union Territories (Laws) Act, 1950, for Delhi.
Legislation In Respect Of States Under The President’s Rule
In the context of the governance of States under certain conditions, Article 356
of the Constitution empowers the President to take over the administration of a
State through a Proclamation. This extraordinary measure allows for the powers
of the State Legislature to be exercised either directly by Parliament or under
its authority, as outlined in Article 357.
When Parliament assumes the legislative powers of a State, the procedure for
legislative proposals is governed by the established protocols. As stated in
Rule 10.2, legislative proposals may be sponsored by either the relevant
Ministry or Department at the Centre or the State Government itself. In both
scenarios, it is essential that the concerned Ministry or Department consults
with the Ministry of Home Affairs, and in the case of the Central Ministry, also
with the respective State Government, at the earliest stage of the process. The
procedure for enacting such legislation mirrors the processes described in
Chapter 9 for Central Legislation, and compliance with the instructions from the
Ministry of Home Affairs is imperative.
In instances where the power to legislate has been delegated by Parliament to
the President, as per Rule 10.3, a specific procedural framework must be adhered
to. Legislative proposals can be initiated either suo moto by the concerned
Ministry at the Centre or by the State Government, (Rule 10.4)
When a proposal is sponsored by the Central Government, the Ministry concerned
must consult relevant parties, including other Ministries, the Ministry of Home
Affairs, and the State Government, at the earliest stage (Rule 10.5.1). The same
legislative procedure is then followed as for central legislation up to the
introduction of the Bill, with the Cabinet's approval being sought only after
the draft Bill is finalized, in accordance with Rule 10.5.2.
Conversely, if the State Government sponsors the proposal, it must submit the
legislative proposal to the Central Ministry, with copies forwarded to the
Ministries of Home Affairs and Law and Justice. This submission must include a
draft Bill, a detailed Cabinet note, a statement of reasons for enactment, a
financial implications note, and relevant extracts of the parent Act if it is an
amending Bill (Rule 10.6.1).
Following this submission, the Ministry or Department must scrutinize the Bill
to assess its necessity and urgency, engaging with the State Government and
relevant central authorities (Rule 10.6.2). After the Bill is finalized, as
outlined in Rule 10.7, Cabinet approval is required for the proposed
legislation.
If any consultation with a designated committee is mandated by the law
delegating power to the President, the concerned Ministry must supply the
Ministry of Home Affairs with the necessary documentation, including copies of
the Bill in Hindi and English and an explanatory memorandum (Rule 10.8). Any
significant changes resulting from committee discussions require Cabinet
approval, with the finalized Bill then sent to the Ministry of Law and Justice
for obtaining the President's assent and subsequent publication (Rules 10.9 and
10.10).
Once enacted, the concerned Ministry or Department is tasked with laying all
Acts before each House of Parliament, in compliance with Rule 10.11. If any
statutory rules or orders that are required to be laid before the State
Legislature are involved, these must instead be laid before Parliament when a
State is under President’s Rule, as stipulated in Rule 10.12. For this process,
the relevant administrative Ministries at the Centre must procure copies of the
rules and orders from the State Government and ensure their proper presentation
before Parliament, adhering to the guidelines laid out in Chapter XI regarding
statutory rules and orders.
Conclusion
In conclusion, the process of law-making in India is a finely tuned mechanism,
where both formal rules and evolved practices work in tandem. While the
legislative procedure appears formulaic on the surface, it is enriched by
procedural intricacies that ensure each law is thoroughly vetted and debated
before its enactment. Understanding these complexities is crucial for gaining a
deeper appreciation of the democratic process in India.
By exploring each phase of the process in detail, from the drafting of proposals
to the final assent, we can see how both transparency and accountability are
maintained in the legislative framework. Laws are not just written and passed
but shaped through deliberation, scrutiny, and collaboration among various
stakeholders. This structured approach ensures that the laws governing the
country reflect not only the intent of the framers but also the evolving needs
and values of society.
Written By: Arghya Sen, 4th year BALLB(Hons.) Student at Amity
University, Kolkata
Email:
[email protected]
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