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Law Making Procedure in India

1. Introduction

Legislation or law-making is deemed to be the predominant function

of Parliament. The initiative in law making is mostly with the executive
although private members can also initiate proposals.

All legislative proposals are initiated in the Parliament in the form of

Bills. A Bill is the draft of legislative proposal which can be introduced in
either House of Parliament. Bills broadly fall into two categories, namely,
(a) Government Bills and (b) Private members’ Bills. Besides, Bills can also
be categorized as:

(i) Ordinary Bills

(ii) Money Bills dealing with financial matters

(iii) Constitution Amendment Bills.

2. Ordinary Government Bills

Government Bills are drafted by Government draftsman and introduced in

either House of Parliament by the Minister concerned. A minister is required
to give seven days’ notice of a motion for leave to introduce the bill. A bill
when it is introduced in the House I accompanies by a Statement of Object
and Reasons, the memorandum regarding delegation of legislative power
and the financial memorandum wherever necessary under the rules. A Bill
seeking to replace an Ordinance is also accompanied by a statement
explaining the circumstances which had necessitated immediate legislation
by Ordinance. Normally, copies of the Bill are made available to the member
at least two days before the date on which it is proposed to be introduced.

• Procedure
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The Three Readings: A Bill has to pass through different stages in the
Parliament before it becomes an Act. Each Bill undergoes three readings in
each House, i.e. First Reading, Second Reading and Third Reading.

Thereafter, it is sent to the President for his assent which completes

the legislative proves and a Bill becomes an Act.

In the first reading stage, a motion for leave of the House to introduce
a Bill is moved and the Bill is introduced. There is usually no discussion at
this stage. But if the motion for leave to introduce a Bill is opposed, the
Speaker may permit brief statements from the member who opposes the
motion and the Minister or member who moved the motion. Where the
motion 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 and thereafter put the motion to the vote of the House.
The Speaker or the House cannot, however, decide the constitutionality of a
Bill. This can be decided only by courts of law after the Bill receives
President’s assent and becomes an Act.

The introduction of a Finance Bill or an Appropriation Bill cannot,

however, be opposed.

After a Bill has been introduced, it is published in the Gazette of

India.Sometimes, however the speaker may order publication of the Bill in
the Gazette even before introduction.

The Second readingis the consideration stage of the Bill. This consists
of two steps. The first stage involves a general discussion on the Bill as a
whole where only principle underlying the Bill is discussed and not the
details of Bill. At this stage, it is open to the House to refer the Bill either to
a select Committee of the House or to a Joint Committee of the two Houses
with concurrence of the other House, or circulate if for eliciting opinion
thereon, or straight-away take it into consideration. A money Bill is a Bill
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which contains only provisions dealing with all or any of the matters
specified in sub-clauses (a) to (g) of clause (1) of art. 110 of the Constitution.

Bills may also be referred by either House or its Presiding Officer to

the Departmentally Related Joint Standing Committees of the two Houses
in accordance with the subject matter of each Bill.

After the Report of the Select Committee or Joint Committee on a Bill

has been presented to the House, the Minister or member-in-charge of the
Bill may move a motion that the Bill as reported by the Select/Joint
Committee be taken into consideration. The Scope of the debate is confined
to the Bill as reported by the Committee and the Principle of the Bill is not
open to discussion again, because the House, in effect, commits itself to the
principle of the Bill when a motion to refer the Bill to a Committee is
adopted.

The second stage of second reading starts after the motion that the bill
or the Bill as reported by the Select/Joint Committee, be taken into
consideration has been adopted and the Bill is taken up for consideration
clause by clause. Each clause is placed before the House separately for
discussion. At this stage, amendments to a clause can also be moved and
discussed. The clause by clause consideration of the Bill is often long and
laborious as each clause is normally discussed separately and each
amendment is also to be discussed. Adopted or rejected by the House. First
the amendments to a clause are voted and thereafter the clause or the clause
as amended is put to vote. The consideration of the schedule or schedules, if
any, follows the consideration of clauses. The Speaker my put as one
question clauses and/or schedules as amended, as the case may be, together
to the vote of the House. Clause one, Enacting Formula, Preamble and Title
of the Bill are them put top vote together.

Third Reading: When all the clauses and schedules, if any, of the Bill
have been considered and voted upon the House, the Minister or member-
in-charge of the Bill may move that the Bill be passed. At this stage, the
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discussion is confined to arguments either in support of the Bill or for its

rejection without referring the detailsthereto further than is absolutely
necessary. Only verbal, formal and consequential amendments are allowed
to move at this stage. In passing an Ordinary Bill, a simple majority of
members present and voting is required. The Bill is passed after the motion
that the Bill be passed is adopted by the House.

Bill in the Other House: After the Bill has been passed by the
originating House, it is transmitted to the other House for its concurrence
with a message to the effect. Here, again, it goes through the three readings.
If the Bill passed as it has been transmitted by the originating House, it is
sent to the President for his assent. However, if the Bill is passed with
amendments, the Bill is returned to the first House with amendments where
is laid on Table and a motion is moved for consideration of the amendments.
If the House agrees to the amendments proposed by the other House, the Bill
is sent again to the latter to get its concurrence. If the other House insists on
the amendments proposed by it, the Bill is returned to the originating House
with a message to the effect. In that case, the Houses are deemed to have
finally disagreed as to the amendment(s).

Joint Sitting of the Two Houses: When the Houses have finally
disagreed to the amendments to be made in the Bill, a Joint sitting of the two
Houses may be summoned by the President for the purpose of deliberating
and voting on the Bill. This does not, however, apply to Money Bill.

If at a Joint Sitting of the two House, the Bill, with such amendments,
if any, is passed by a majority of the total number of members of the Houses
the present and voting, it is deemed to have been passed by both the Houses.

The Dowry Prohibition Bill, 1961, the Banking Service Commission

(Repeal) Bill, 1978 and the Prevention of Terrorism Bill, 2002 were
considered and passed at joint sittings.
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Assent to Bills: Whena Bill has been passed by both the Houses, it is
presented to the President for his assent, who may either give his assent to
the Bill or may withhold his assent. The President may also return the Bill,
if it is not a Money Bill, to the Houses with message requesting them to
reconsider the Bill or any specified provisions, thereof, and when a Bill is
so returned, the Houses reconsider the Bill accordingly. If the bill is passed
again by the Houses with or without amendment and presented to the
President for his assent, the President cannot withhold assent there from. A
Bill becomes an Act after the President has given his assent to it.

3. Money Bill

The Constitution provided an elaborate definition of a Money Bill in

art. 110. According to this Article, a Bill is deemed to be money bill if it
contains only provisions dealing with all or any of the matters relating to:

a. The imposition, abolition, remission, alteration of any tax;

b. The regulation or borrowing of money by the Government;

c. The payment of moneys into or the withdrawal of moneys from

the Consolidated or Contingency Funds of India;

d. Declaring a new item to be expenditure, charged on the

Consolidated Fund of India;

e. Any matter incidental to any of the above matter.

A Bill shall not be deemed to be a Money Bill, by reason only that it

provided for the impositions of fines or other pecuniary penalties or for the
demand or payment of fees for license or fees for services rendered, or by
reason that it provides for the impositions, abolition, remission, alteration,
or regulation of any tax by any local authority or body, for local purposes.

If any question arises whether a Bill is a Money Bill or not, the

decision of the Speaker of the House of the People is final. The Speaker is
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not under any obligation to consult any one in coming to a decision, that a
Bill is a Money Bill.

• Procedure regarding Money Bill

A Money Bill cannot be introduced in the Rajya Sabha. It can be

introduced only in Lok Sabha on the recommendation of the President. A
Money Bill cannot be referred to a Joint Committee of the Houses nor can it
be considered at the Joint Sitting of the two Houses under the Provisions of
art. 108. The Constitution provides in article 109 that after a Money Bill has
been passed by the Lok Sabha and transmitted to Rajya Sabha, the latter
shall within a period of fourteen days from the date of its receipt of the Bill
return the Bill to Lok Sabha with its recommendations and the Lok Sabha
may thereupon either accept or reject all or any of the recommendations of
the Rajya Sabha. If the Lok Sabha accepts any of the recommendations of
the Rajya Sabha, the Money Bill shall be deemed to have been passed by
both Houses with the amendments recommended by the Rajya Sabhi and
accepted by the RajyaSabha and accepted by the Lok Sabha.

If the Lok Sabha does not accept any of the recommendation of the
Rajya Sabha, the Money bill shall be deemed to have been passed by both
Houses in the form in which it was passed by the Lok Sabha without any of
the amendments recommended by the Rajya Sabha.

If a Money Bill passed by the Lok Sabha and Transmitted to the Rajya
Sabha for its recommendations is not returned to the Lok Sabha within
fourteen days, it shall be deemed to have been passed by both Houses at the
expiration of the sid period of fourteen days in the form in which it was
passed by the Lok Sabha.

When a money bill is presented to the President for his assent, it

cannot be returned to the Houses by the President of reconsideration unlike
an ordinary Bill.

4. A Finance Bill
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It is introduced in Lok Sabha immediately after presentation of the

Budget containing the financial proposals of the Government of Indian and
Appropriation Bill to authorize withdrawal of moneys from the
Consolidated Fund of India introduced in Lok Sabha after the voting of
relevant demands for grants, are typical examples of Money Bills.

A constitution amendment Bill is not treated as a Money Bill even if

all its provisions attract art. 110 (1) of the Constitution for the reason that
such amendments are governed by art. 368 which overrides the provisions
regarding Money Bills.

• Money Bills and Financial Bills- The distinction

whereas a Money Bill deals solely with matters specified in art. 110
(1) of the Constitutions, a Financial Bill does not exclusively deal with such
matters, that is to say, it contains some other provisions also. Financial Bill
can be divided into two categories. In the first category are Bills which inter
alia contain provisos attracting art. 110 of the Constitution. They are
categorized as Financial Bills under Article 117 (1) of the Constitution. Like
Money Bills, they can be introduced only in Lok Sabha on the
recommendation of the President. Such Bill can, however, be referred to a
Joint Committee of the Houses.

In the Second category are Bills inter alia containing provisions which
would on enactment involve expenditure from the Consolidated Fund of
India? Such Bill is categorized as Financial Bills under Article 117 (3) of
the Constitution. Such bills can be introduced in either Houses of
Parliament. However, recommendation of the President is essential for
Consideration of these Bills by either House and unless such
recommendation is received, neither House can pass the bill.

5. Private Member’s Bill

In order to provide an opportunity to the people’s representatives to

express their views on various issues of pubic importance and persuade the
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Government to formulate programs and policies, the rules of procedure

provide for intimation of legislation by private members though Bills
initiated by private members are few and far between, the discussion on such
Bills brings to the notice of the Government and the public some important
issues and helps the Government to bring comprehensive legislation on
them, if necessary.

The last two-and-half hours of a sitting on every alternate Friday are

allotted during a session for transaction of business relating to Private
Members’ Bills, the other Friday being devoted to Private Members’
Resolutions.

So far as the stages of a Private Member’s Bill in the House and the
general procedure are concerned, there is no difference between the
Government Bills and the Private Members’ Bill. There are, however, some
special procedural features concerning Private Members’ Bills. A member
who wants to introduce Bill has to give one month’s notice. The notice is to
be accompanied by a copy of the Bill and an explanatory Statement of
objects and Reasons. Where a Bill, if enacted, is likely to involve
expenditure from public funds, a financial memorandum giving an estimate
of the expenditure involved is appended to the Bill by the member. In case
the Bill contains proposals for delegated legislation, a memorandum
regarding delegated legislation is also appended to the Bill. President’s
recommendations, if necessary, for introduction and/or consideration of the
Bill should also be applied for by the member.

All the bills due for introduction on a particular day allotted for Private
Members’ Bills are included in the List of Private Members’ Business for
that day. Bills seeking to amend the Constitutions, apart from being subject
to the normal rules applicable to Private Members’ bills and Resolutions and
only those Bills which have been recommended by the Committee are put
down in the List of Business for introduction.
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By convention, the motion for introduction of a bill is not opposed.

However, there have been instances when the motion for introduction was
opposed and also negative by the House, the Committee on Private
Members’ Bills and Resolutions classifies the Bills according to their nature,
urgency and importance into two categories, i.e. category ‘A’ and Category
‘B’. Bills classified as category ‘A’ Bills have precedence over Bills
classified as Category ‘B’ for the purpose of consideration in the House. The
Time for their dissuasion is also allocated by the Committee. The relative
precedence of Bills in a particular category is determined by ballot. The Bills
are included in the list of Business for consideration in the order of priority
determined by ballot.

In other respects, the procedure is the same as for Government Bills.

Since 1970, no Private Member’s Bill has been passed. During 1952-1970,
14 Bills in this category became laws.

Recommendation of the President: Recommendation of the President

is required for introduction of Bills in following cases:

(i) Bills relating to formation of new States and alteration of areas,

boundaries or names of existing States [Article 3],

(ii) Money bills and Financial Bills [Article 117 (1)] and Bill
affecting taxation n which the states are interested [Article 274
(1)].

Recommendation of the President in also necessary for the

consideration and passing of a Bill involving expenditure from the
consolidated fund of India [Article 117 (3)].

Where a Bill having been considered and passed by the Rajya Sabha
is transmitted to Lok Sabha, the Minister concerned forwards to the LS Sectt.
Also the necessary recommendation of the President for consideration of the
Bill in Lok Sabha even though a similar recommendation has been sent
earlier to Rajya Sabha when the Bill was pending before that house.
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Every sanction or recommendation by the President is communicated

to the Secretary-General by the Minister concerned in writing. The letter
from the Minister concerned conveying the recommendation is reproduced
verbatim in the Bill after the Statement of Objects and Reasons.

It is also indicated in the proceedings of the House in the form of a

footnote.

The detailed rules of procedure, directions, ruling by the Speaker and

precedents are given in the succeeding paragraphs.

6. Constitution Amendment Bill

• Necessity of Amending Provisions in the Constitutions

Provision for amendment of the Constitution is made with a view to

overcome the difficulties which may encounter in future in the working of
the Constitution. No generation has monopoly of wisdom nor has it a right
to place fetters on future generations to mold the machinery of government
according to their requirements. If no provisions were made for the
amendment of the constitution, the people would have recourse to extra
constitutional method like revolutions to change the Constitution. 1

The farmers of the Indian Constitution were keen to avoid excessive

rigidity. They were anxious to have a document which could grow with a
growing nation, adapt itself to the changing need and circumstances of a
growing people. The nature of the amending process envisaged by the
framers of our Constitution can best be understood by referring the
following observation of the late Prime Minister Pt. Nehru, “While we want
this constitution. There should be certain flexibility. If you make anything
rigid and permanent you stop the nation’s growth, of a living vital, organic
people. In any event, we could not make this Constitution so rigid that it
cannot be adapted to changing conditions. When the word is in a period of
transition what we may do today may not be wholly applicable tomorrow”.

1Keshavanand Bharti v. State of Kerala, A.I.R. 1973 SC 1461.

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But the farmers of Indian Constitution were also aware of the fact that
if the Constitution was so flexible it would be a playing of the whims and
caprices of the ruling party. They were, therefore, anxious to avoid
flexibility of the extreme type. Hence, they adopted a middle course. It is
neither too rigid to admit necessary amendments, nor flexible for
undesirable changes. Willis in his book on the Constitutional Law of the
United States says, “If no provisions for amendments were provided, there
would be constant danger of revolution. If the method of amendment were
too easy, there would be the danger too hastly action all the time. In either
case there would be danger of the overthrow of our political institutions.
Hence the purpose for providing for the amendment of the Constitution is to
make it possible gradually to change to Constitution in an orderly fashion as
the changes in social condition make it necessary to change the fundamental
law to correspond with such social changes.”

• Constitutional Provisions

The procedure for amendment of the Constitution of India has been

laid down in article 368 of the Constitution. The Constitution does not
provide for separate constituent body; the power to amend the constitution
is vested in the Parliament itself and a special procedure is laid down for it.

An amendment for the Constitution may be initiated by introduction

of a Bill in either House of Parliament by the government or by a private
member. A Constitution Amendment Bill initiated by a private member,
apart from being subject to the normal rules applicable to a private member’s
Bill, has also to be examined and recommended for introduction in the Lok
Sabha by the Committee on Private Member’s Bills and Resolutions.

Articles of the Constitution have been classified into three categories

for the purpose of amendment:-

(a) Articles which can be amended by simple majority in the

Houses;
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(b) Articles which require special majority for their amendment;

and

(c) Articles which require a special majority as well as ratification

by the legislatures of not less than one half of the States.

Bills for amendment of the following provisions of the Constitution

are passed by both Houses of Parliament by a simple majority of members
present and voting:-

(a) Admission or establishment of new States, formation of new

states and alteration of areas, boundaries or names of existing
States (articles 2, 3 and 4);

(b) Creation or abolition of Legislative Councils in the States

(Articles 169);

(c) Administration and control of Scheduled Areas and Scheduled

Tribes (para 7 of the Fifth Schedule); and

(d) Administration of Tribal Areas in the States of Assam,

Meghalaya, Tripura and Mizoram (Para 21 of the Sixth
Schedule).

These Bills are not deemed as Constitution Amendment Bill under

Article 368 of the Constitution and, therefore, these are called by the title
“Constitution Amendment Bills”.

Bill providing for the formation of new States and for the alteration of
areas, boundaries or names of existing states can be introduced in either
House of Parliament only on the recommendation of the President after
eliciting the views of the concerned States. The President is not, however,
bound by the views so ascertained.

The Parliament may pass a law to provide for the abolition or creation
of Legislative Council in a State, if the Legislative Assembly of the State
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apsses a resolution to that effect by a majority of not less than two thirds of
the members present and voting;

A Bill seeking to amend any other part of the Constitution has to be

passed by a special majority, i.e., a majority of the total membership of the
House and by majority of not less than two thirds of the Members of that
House present and voting. The expression “total membership” means the
total number of members, comprising the House irrespective of whether
there are vacancies or absentees on any account.

A Bill seeking amend the following provisions of the Constitution has

to be passed by a special majority in each House of Parliament and has also
be to ratified by the Legislatures of not less one half of the States by
resolutions to that effect before the Bill is presented to the President for
assent.

(a) The election of the Presidents (Article 54 & 55);

(b) The extent of the executive power of the Union and the States
(Articles 73 & 162),

(c) The Supreme Court and the High Court’s (Articles 241, Chapter
IV of Part V and Chapter V of Part IV of the Constitution;

(d) Distribution of legislative power between the Union and the

States (Chapter I of Part XI and the Seventh Schedule of the
Constitution);

(e) Representation of States in Parliament;

(f) The procedure for amendment of the Constitution itself

(Articles 368).

In case of any disagreement between the two Houses of Parliament on

a Constitution Amendment Bill, there cannot be joint sitting of the
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Houses on the Bill as Articles 368 requires each house to pass the bill
by the prescribed majority.

• Procedure for Amendment

A bill to amend the Constitution may be introduced in either House of

Parliament. It must be passed by each House by a majority of the total
membership to that house and by a majority of not less than 2/3 of the
members of that House present and voting. When a bill is passed by both
houses it shall be presented to the President for his assent who shall give his
assent to Bill and thereupon the Constitution shall stand amended. 2 But a
Bill which seeks to amend the provisions mentioned in Article 368 requires
in addition to the special majority mentioned above the ratification by the ½
of the States.

Article 368, however, does not constitute the complete Code. The
Process of amending the Constitution is the legislative process governed by
the rules of that process.

Thus, it is clear that most of the provisions of Constitution can be

amended by an ordinary legislative process. Only a few provisions which
deal with the federal principle require a special majority plus ratification by
the States. The procedure to amend the Constitution is, however, not as
difficult as in America or Australia. The difficult procedure of referendum
followed in Australia and Switzerland or constitutional conventions
followed in America, have not been adopted in Indian Constitution. Most of
the provisions of the Indian Constitution can be amended by the special
majority. Though different from the ordinary Legislative process, the special
majority rules do not result in very rigid method of amendment as is clear
from the fact that the Constitution has been amended as many as 58 times
within the period of 40 years. Even the procedure to amend the constitution
with the consent of the States, though more rigid than the special majority

2 The Constitution (24th Amendment) Act, 1971.

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rule, is not so difficult as that of American or Australian procedure to amend

that Constitution.

In Australia, a constitutional amendment can be proposed in either of

the two ways (1) by 2/3 of the votes of both Houses Congress, or (2) by a
convention called on the application of the Legislature of 2/3 of the States.
An amendment proposed in either of the above two ways can be ratified in
either of two ways: (1) by the Legislature of ¾ of the states, or (2) by
convention in ¾ of the States.

From the above, it is clear that amending procedure in Australian and

the American Constitution is much more difficult that in the Indian
Constitution.

Thus, it may be said that the Indian Constitution-makers have sought

to find a via media, between the two extremes extreme flexibility and
extreme rigidity, as this, it is hoped, will duly meet the needs of a growing
society.