Legislative Procedure

G.P. UNNIKRISHAN
JOINT SECRETARY & DIRECTOR
K-LAMPS (PS)
 LAW

Body of principles recognised and

applied by the State in the administration
of justice. 'Legislation' is derived from
the Latin word 'Legis latio' meaning
bringing or proposing a Law.
 What is LEGISLATION ?

The exercise of the power and function of making laws that have the force
of authority by virtue of their promulgation by an official organ of a State .

Two categories of Legislation

(i) Supreme Legislation – proceeds from a Supreme authority / Soverign power ie.
Parliament or State legislature (can't be repealed or annulled or controlled by any other
Legislative authority).

(ii) Subordinate Legislation – proceeds from any authority other than the soverign
power and depends for its continued existence and validity on some Supreme authority.
●
The Constitution of India lays out provisions for the enactment of law by
Parliament in the Union level. For State Legislature, Legislative
Assembly makes laws in a State .
●
Laws enacted by Parliament / State Legislature can be challenged before
courts.
 PRINCIPLES IN LEGISLATION

➢
The Legislation should be efficient since it is the most
appropriate way of communication between the elected and
the elector.

➢
It should be in consonance with the principle of natural justice.
 LEGISLATIVE POWER

DISTRIBUTION

●
There exists a distribution of Legislative Power between the
Parliament and the States. The nature of distribution varies
according to the local and political background.
●
There exists two ways of distribution of Legislative Power between
Centre and State.

Regarding the territory over which the Centre and the States
have their jurisdiction.

The subjects assigned to each jurisdiction.

 1. TERRITORIAL EXTENT

STATE :-

●
A State Legislature can make laws for the whole or any part of the
State to which it belongs.

●
A State Legislature makes laws relating to persons or objects situated
within the territory of that State.
●
It is not possible for the State Legislature to make its territorial
jurisdiction wider under any circumstance except when the
boundaries of the State are extended by an Act of Parliament.
 CENTRE (PARLIAMENT)

➔
Holds the power to legislate for the whole or any part of the
territory of India
➔
Includes States, Union Territories or any other area included in
the territory of India.

➔
Extra Territorial Legislation (Art. 245(2))
Laws made by Parliament will govern not only persons and
properties within the territory of India but also non-resident Indians and
their properties situated anywhere in the world.
 2. Subjects of Legislation - Distribution of

➢
Three fold distribution of Legislative power between Centre &
State & Concurrent.
➢

➢
Possible subjects of Legislation are enumerated under three
Legislative lists in the VIIth Schedule of the Constitution.
 LIST I – UNION LIST


99 subjects – Union shall have exclusive power of
Legislation.

Eg: Defence, Foreign Affairs, Banking, Insurance, Currency

& coinage, Central duties and taxes.
 LIST II – STATE LIST


61 items / entries – State shall have exclusive power for
Legislation.

Eg: Local Self Government, Police, Agriculture, State Taxes

& Duties etc
 LIST III – CONCURRENT LIST


52 Items – Gives power to the Union and the State Legislatures.

Eg: Criminal Law & Procedure, Civil Law & Procedure,

Economic and Social Planning, Education.
 IN CASE OF OVERLAPPING -
➔
Predominance given to Union Legislature, as under
Government of India Act, 1935.
➔

➔
Power to the State Legislature to legislate w.r.t matters
enumerated in the State List is subject to the power of
the Parliament to legislate in respect of matters
enumerated in the Union and Concurrent lists – the
entries have to be interpreted accordingly.
➔
In the case of Union List, if there is repugnancy between
Union & State, related to law in the State, the Union law
prevails.
➔

➔
If there is a State law, reserved for the assent of the
President and has received such an assent, the State law
may prevail but it would still be competent for the
Parliament to override the State Law by a subsequent
legislation. (Article 254 (2))
 RESIDUARY POWER

Residuary power is the power to legislate w.r.t any

matter not specified in the Lists.

Parliament has exclusive power to make any law w.r.t any matter not
enumerated in the Concurrent or State List. Art. 248

➢ Constitution is the Supreme Law of the land.

➢ The Constitution vests the Residuary power in the Union or Parliament.

➢ Vestingof residual power under Constitution follows the precedent of Canada

(In USA & Australia, the residuary power vests with the States).
➢

➢
The final determination as to whether a particular matter falls under
the residuary power or not is that of the Courts.
➢

➢
Scope of the application of Residuary Power is very limited
because
➢

1. Exclusive enumeration of all possible subjects of legislation.

2. Courts interpret the ambit of the enumerated powers liberally.

 Expansion of Legislation Power of Parliament

 There are certain exceptional circumstances under

which the normal distribution of Legislative
power is either suspended or the power of the
Parliament is extended over State Subjects.
 1. National Interest – Art 249

 Parliament shall have the power to make laws w.r.t any matter
enumerated (included) in the State List for a temporary period, if the
council of State declares by a resolution supported by not less than 2/3 rd
of the members present and voting that it is necessary and expedient in
national interest.
 The resolution so passed shall remain in force for a period not
exceeding one year.
 Proviso to Art 249 (2) – If the resolution approving the continuance is
passed the same manner, it shall be in force for a further period of one
year.
 2. Proclamation of Emergency

 Art 250
 While a proclamation of Emergency is in
operation, Parliament shall have the power to make laws for the whole
or any part of the territory of India wrt any of the matters enumerated in
the State List.
 3. Power to Legislate by Consent
(and adoption of the same by other States)
 Art 252

➢
If the Houses of two or more States pass the resolution to the effect that it
is desirable for the Parliament to make laws wrt any matter enumerated
in the State List, relating to those States, the Parliament shall pass an
Act for regulating that matter accordingly.
➢
The Act so passed applies not only to such States but to other States
provided the House of that State adopts the same by means of a
resolution passed by that House.
 4. Giving effect to International Agreements

 Art 253

 To carry out international obligations the Art. 253 empowers the

Parliament to enact. It may be for implementing


Any treaty, agreement or convention with other

countries;

Any decision made at any international conference,

association or other body.
 5. Failure of Constitutional machinery in States

Article 356(1)(b)

 Upon the Report of the Governor of a State



 If the President is satisfied that there exists a failure of Constitutional

machinery of a State and makes a proclamation to that effect, the
President may declare that the powers of the Legislature of the State
shall be exercisable by or under the authority of Parliament.
 BILLS

* Bill is a Statute in draft.

* Legislative proposals have to brought in the form of a

Bill before the Assembly.

* No Bill can become Law untill it receives the approval of

the House and assent of the Governor/President.
STATUTORY PROVISIONS OF LEGISLATION

1. Article 107-111 & Article 196-201 of the Constitution of India

---- Legislation by Parliament & State resp.
2. Rules 69-106 of the RPCB of KLA
3. Para 219-230 of KSOM ---putting up files regarding Legislation
by the concerned officers of administrative departments
4. Rules of Business of the Government of Kerala --- Procedure
for Legislation through the concerned Administrative
Department, Chief Minister & Ministers, advices given by
Law Department regarding Legislation
 DRAFTING OF BILLS

* Proposals to initiate Legislation regarding a

subject comes from the Administrative
* Administrative Department consults the Law
Department
* Explains the need for the proposed Legislation
* Legal points are discussed
Law Department examines ---
* Need for Legislation
* The competence of the state Legislature for the
Legislation
* Various constitutional requirements to be complied with
viz;
* The need for obtaining Governor's recommendation if it
is money bill
* Whether the proposed measure is inconsistent with any of
the provisions of the constitution particularly the
fundamental rights
●
Law Department returns the file to the Administrative
Department with the advice on aforesaid matters as per
Rule 45 of the Rules of Government Business

●
Administrative Department will prepare a note for
circulation to Chief Minister, Minister concerned &
Law Minister
1. Administrative Department prepares
2. If Chief Minister agrees to the proposal;
the Administrative Department prepares
1. A Memorandum of instructions clearly stating the
circumstances that necessitate the proposed
Legislation - Statement of objects & reasons
2. Financial Memorandum
●
Items 1 & 2 are sent to Law Department to prepare
the Draft Bill.
●
Draft Bill approved by the concerned Minister
●
Sent to Chief Minister for order for placing before the
Cabinet
●

●
Sent to Cabinet along with a note prepared by the
Administrative Department
●

●
Obtains necessary recommendations of
President/Governor if needed
●

●
Draft Bill finalisation by Law Department after
considering suggestions of Cabinet
●
Draft bill sent to Administrative Department for final
approval

●
Draft Bill along with the Statement of Objects & Reasons,
notes on Clauses (if any), Memorandum regarding
Delegated Legislation, Financial Memorandum
forwarded to Legislative Assembly by Law Department
BILLS
BILLS
 BILLS - CLASSIFICATION

 BASED ON PRESENTATION
i. Government Bill – A bill presented in the House by a Minister.

ii. Private Member Bill – A Bill presented in the House by a

Member other than Minister
 2. BASED ON CONTENT

i. Original Bill - Bills embodying new proposals

or policies.

ii. Amending Bills – Bills seeking amendment

of existing Act.
iii. Consolidating Bills – Bills aimed at
consolidating existing laws on a particular
subject
iv. Expiring Laws (Continuance) Bills – Bills providing for the
continuance of an expiring Act.

v. Ordinance Replacing Bills – Bills seeking to replace ordinance.

vi. Constitution Amendment Bill – Bills seeking to amend the

Constitution.

vii. Money Bill – Bills which contain provisions for imposition,

remission, abolition, alteration, regulation or appropriation of
moneys out of the consolidated fund.
STRUCTURE OF A BILL
 1. TITLE

Every bill has a title succinctly describing the

nature of the proposed measure.

➔
Generally referred to as long title
➔
Prefixed to Bill
➔
Retained in the Act
➔
Is sufficiently wide to cover all the provisions of
the bill
 2. PREAMBLE

➔
Follows the title
➔
The beginning of the Statute
➔
Explains certain facts
➔
Has became obsolete
➔
Is subject to amendment
 3. ENACTING FORMULA

➔
Is a short statement preceding the
clauses.
 4. SHORT TITLE

➔
Every bill has a short title
➔
It is a label or index heading to the enactment
➔
It is the first clause of the Bill
➔
An enactment is cited by the short title
➔
If in an enactment it is necessary to cite another Act, its short
title is cited
➔
Two or more Bills seeking to amend the same Parent Act /
Principal Act and the Bills are presented and passed in the
same year, the amending bills are numbered consecutively
 5. EXTENT CLAUSE

➔
Indicates the areas to which the law becomes applicable.

➔
Law passed by Parliament is applicable throughout the
country.

➔
The exceptions if any are expressly stated in the Statute
itself
 With regard to the extent, the Acts may be divided as
Acts which apply to

i. Whole of India
ii. Whole of India except Jammu & Kashmir
iii. Only to Union Territories
iv. States which have passed a resolution pertaining to
matters specified in List II
 6.COMMENCEMENT CLAUSE

➢
Important provision of the Bill.

➢
General Practice – Short title, extent clause and commencement clause
are placed in a single section.

➢
General Rule – In the absence of any express provision, an Act comes
into operation on the day on which it receives the assent of President /
Governor.

➢
Act intended to take effect at once need not have commencement clause.
➢
To give retrospective effect to an enactment, the form is
“This Act shall be deemed to have come into force on
_________”

➢
To postpone the operation of an Act and to bring it into some
other convenient date in the future, the Government is
given power to appoint some future date, by notification
in the Gazette

➢
In cases where all the provisions of an Act may not be
intended to be brought into force at the same time or in all
the areas to which it intends, the wordings differ
 7. DEFINITION CLAUSE

➔
Placed immediately after the short title, citation
clause.
➔
Arranged in alphabetic order.
➔
Explain the terms, removing ambiguity.
➔
Judicially interpreted.
➔
Are included in the Section 3 of General Clauses Act,
1897 and applies mutatis mutandis to Acts and
Regulations.
 8. DURATION CLAUSE


Included as a sub clause to the first clause.


Is applicable in the case of laws that are of limited duration
and are enacted for a short stipulated period after which
they cease to be effective.
 9. DECLARATORY CLAUSE

●
Included in certain Bills after the first clause.

●
Declares or states the need or requirement which the
statute was framed to fulfil.
 10. RULE MAKING CLAUSE

➔
Contains the provisions delegating the power to make rules
and regulations to the Executive for administering
various laws.
➔
Rules should be laid before the Legislature for a specified
period.
➔
Is subject to modification by Legislature.
11. REPEAL & SAVINGS CLAUSE

REPEAL

* Invariably placed at the end of a Bill.

* Provision for both repeal and saving are

embodied in the same clause.

* With the repeal, all the rules made thereunder

are ipso facto repealed.
 SAVINGS

➢
Preserves things which were in esse at the time of its
enactment and therefore can't affect the transaction made
on the date of effect of repealing statute

➢
Protects or saves a person as regards the rights he may have
acquired under the then existing law
 12. SCHEDULE

➢
Includes matters in detail such as illustrations, forms,
agreements, plans.

➢
Part of the statute.

➢
If there exists more than one schedule, the expression is
Schedule I, Schedule II.
13. STATEMENT OF OBJECTS & REASONS

Appended to every Bill.

➔
Briefly explains the purpose of the proposed legislation.
➔
Helps to understand the necessity and scope of the Bill.
➔
Framed in non-technical languages.
➔
Necessities which made the Government to introduce the
Bill is given.
➔
Shouldn't contain arguments.
 14. MEMORANDUM REGARDING DELEGATED
LEGISLATION


Gives the scope of proposals for subordinate legislation.


All Bills involving proposals for subordinate legislation are
required to be accompanied by the memorandum.


The enabling Act delegates the executive to frame Rules.
 15. FINANCIAL MEMORANDUM

➢
Gives an estimate of the amount of recurring and
nonrecurring expenditure required to be expended out of
the consolidated fund if the Act is put in to force.

➢
If no money is required when the Bill becomes an Act, that
fact is reported in the financial memorandum.
 ENACTMENT OF LAW

Bills has to pass through different stages before it

becomes an Act.
 1. PUBLICATION IN THE GAZETTE

RULE 69(1)

➢
Bill is published after the order of Speaker is obtained,
even when no motion for leave to introduce the Bill is
made
➢
Bill together with the statement of Objects & Reasons,
Financial Memorandum, Delegated Legislation is
published in the Official Gazette as Extra Ordinary
Gazette
➢
Bills in English, Malayalam-Rule 69(2),(3),(4),(5)
 2. FIRST READING

➔
Introduction of Bill by the Member in charge when
Speaker calls up the member in charge.

➔
Speaker announces that the Bill is introduced.

➔
First Reading over.
 3. MOTIONS AFTER INTRODUCTION

 For Bills other than Appropriation Bill, the member in

charge makes one of the following motions
➔
That the Bill be referred to appropriate Subject
Committee
➔
That the Bill be referred to Select Committee
➔
That it be circulated for eliciting Public opinion

Appropriation Bills are not referred to Subject Committee/Select
Committee but is straight away considered by the House when
the member in charge of the Appropriation Bill makes the
motion that the Bill be taken in to consideration


Most of the Bills are referred to the Subject Committee


Bills referred to the Select Committee will be examined in detail,
suggestions, remarks etc are obtained by holding sittings of the
Committee at various places and inviting the public to submit
the same
 4. SECOND READING

➔
2 Stages
➔
Starts when the member in charge of the Bill moves that
the Bill be referred to Subject Committee/Select
Committee
➔
General discussion is done on the principle underlying the
Bill
➔
The Bill is referred to Subject/Select Committee
➔
The Committee submits its Report to the House
➔
The Bill as reported by the Committee is considered by the House

➔
General Discussions

First stage of second reading over

➔
The second stage consists in clause by clause examination of the
Bill as reported by the Committee

➔
Discussion on each clause

➔
Amendments are moved according to Rule 84-86 of RPCB, KLA
➔

➔
Amendments not withdrawn are put to vote

➔
Official amendments, amendments by members accepted by the
member in charge and amendments accepted by the majority
of the House are to become part of the Bill by declaration of
Speaker
5. CONDITIONS GOVERNING ACCEPTABILITY
OF AMENDMENTS

Rule 82 (i) – (vi) of RPCB, KLA

➢
Should be within the scope of the Bill
➢
Should be relevant to the subject matter of the clause to which
it relates
➢
Shouldn't be inconsistent with the previous decisions of the
Assembly on the same subject
➢
Shouldn't make the clause Unintelligible, Ungrammatical
frivolous, meaningless
 6. LIST OF AMENDMENTS

➢
Prepared by the Secretariat
➢
Supplied to the Department concerned, Law Department and
members

Clause 2 will be disposed first, followed by other clauses in the order 3, 4,5…..
Schedules follow the clauses
First Clause, Preamble, title are considered last

Second Reading over

 7. THIRD READING

➢
Member-in-charge moves that the Bill be passed.

➢
Debates restricted to either in support or rejection
of the Bill.
 7. AUTHENTICATION OF BILLS

Before presenting the Bill to the Governor, the Bill

passed by the House is signed by the Speaker
 8. PATENT ERRORS

Rule 93

➔
Speaker holds the power to make changes in the
Bill that are consequential on the amendments
accepted by the Assembly
 WITHDRAWAL OF BILLS – RULE 94

➔
The member-in-charge of a Bill may at any stage can put the motion
for leave to withdraw the Bill on the ground that

The Legislative proposal is to be dropped

A new Bill that substantially alters the
provisions is to replace the one being considered
The new Bill includes provisions in addition
to those in the previous one
➔
If the Bill to be withdrawn has been under
consideration of the Subject / Select Committee,
the notice of motion for withdrawal stand
referred to the Committee

➔
The Committee expresses its opinion in the Report
to the Assembly

➔
The motion is included in the List of Business

➔
If the motion for leave to withdraw a Bill is
opposed, the Speaker may permit the member
who moves and the member who opposes the
motion to make brief statements and after which
the motion is put to vote without further debate
 PRIVATE MEMBER BILL

➢
Drafted by a private member and forwarded to the
Legislature
➢
The motion for leave to introduce the Bill is considered by
the House
➢
If the motion is passed, the Bill goes through the same
stages as that for Government Bill
➢
The Committee on PMBR consider the Bill and
recommend the time schedule for discussion of the
motion
➢
In KLA, Private Member Bill is considered on
Fridays only

➢
Payment of Salaries and Allowances (Amendment)
Bill, 1958 introduced by Sri. Umesh Rao is the
only Private Member Bill passed by KLA
 LAYING OF ACTS

Bill assented to by the President or

Governor (now called Act) is laid in the very first
session of the Assembly. The laying is done by the
Secretary, KLA
 ORDINANCE

➢
Constitutional power exercised by President and or
Governor

➢
Article 123 – Ordinance promulgation power of President

➢
Article 213 – Promulgation of Ordinance by Governor

➢
Promulgated only when the House is not in session

➢
Shall be laid before the Parliament/legislative Assembly

➢

➢
The President / Governor is satisfied that circumstances
exist which render it necessary for taking immediate
action
➢

➢
Ordinance is promulgated by the President / Governor on
the advice of the Cabinet or the Council of Ministers
➢

➢
Ordinance is drafted, finalised and approved by the
Council of Ministers
➢

➢
Same procedure as that of the Bill

➢

➢
Draft Bill on approval of the Cabinet is sent to Legislature
for further n/a
➢
Ordinance is straight away published in the Gazette after
getting the signature of the Governor
➢
Ordinance has equal force and power as that of an Act
➢
Ordinance must be laid before the Assembly
➢
Ceases its operation at the expiration of six weeks / 42
days from the reassembly of the Legislature
➢
May be withdrawn at any time by the Governor
 BILLS RETURNED BY THE GOVERNOR / PRESIDENT

A. PRACTICE IN PARLIAMENT

➔
Art 111
➔
A Bill, when passed by the Parliament is presented
to the President for obtaining assent;
➔
the President may
1.Give Assent to the Bill;
2. Withhold the assent;
3. Return the Bill with the message for
reconsideration.

➔
No mention related to the time for which the President
can keep the Bill pending; (the phrase used is “as soon
as possible”)
➔

➔
President may send back a Bill for reconsideration of the
Parliament. After reconsideration, if the Bill with or
without amendment is again presented to the President
for assent, he can't with hold the assent
➔

➔
Money Bill can't be referred for reconsideration; for, it is
introduced in the Loksabha with his recommendation
 B. PRACTICE IN STATE LEGISLATURE

➔
Art 200
➔
Bill passed by Legislature – sent to the Governor for assent
➔
The Governor may
➔

i. Give assent to the Bill;

ii.Withhold the assent;
iii.Reserve the Bill for the consideration
of the President;
iv.Return the Bill for reconsideration
( if not money Bill).
➔

➔
Art 201
➔
In the case of Bills reserved for the President,

➔
The President may
I) Give assent to the Bill;

II) Withhold the assent;

i.

III) Direct
the Governor to return the
Bill for reconsideration( if not money Bill).
 RECONSIDERATION OF BILLS RETURNED U/A
200 & 201 OF THE CONSTITUTION PROCEDURE
FOLLOWED IN KLA

➢
Rules 99 – 106 of RPCB, KLA
➢
Speaker reads the message of the Governor in the
Assembly, if in session
➢
Published in Bulletin for the information of members if the
Assembly is not in Session
➢
Member in charge moves the motion for the
reconsideration (Notice for which has to be given before
2 clear days)
➢

➢
Debating only on the matters referred to in the message of
the Governor
➢
To the subject matter of the amendments recommended
by the Governor
➢
Members move amendments for which they have given
notice
➢
No amendment other than that based on the amendments
in message is allowed to be moved unless it is
consequential upon, incidental or alternative to that
recommended by the Governor
➢

➢
No amendment shall be moved which doesn't come
within the scope of the message, when no specific
amendment is recommended by the Governor
➢

➢
The amendments recommended by the Governor and
those amendments made on the message of the
Governor are put to vote
➢
 After the disposal of amendments, the member in
charge may move that the Bill originally passed be
passed again or passed again as amended.
 If the motion for reconsideration as per the message
of the Governor is not carried, the member in
charge may move that the Bill as originally passed
be passed again without amendment.
Thank You...........