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TRIMESTER I LEGAL METHODS

THE LEGISLATIVE PROCESS IN THE INDIAN PARLIAMENT

TRIMESTER I – LEGAL METHODS THE LEGISLATIVE PROCESS IN THE INDIAN PARLIAMENT Submitted By: Aditya Vardhan

Submitted By: Aditya Vardhan Sharma ID No.: 1952 Submitted To: Prof. Sidharth Chauhan Date of Submission: 25/09/2012

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament TABLE OF CONTENTS Introduction……………………………………………………………………………………3 Research Methodolog y……………………………………………………………………… The Parliament

TABLE OF CONTENTS

Introduction……………………………………………………………………………………3

Research Methodology……………………………………………………………………… The Parliament of India .............................................................................................................. 6 History and Evolution.........................................................................................................6

...

5

Why Democracy and why representative democracy? Structure of the Parliament ..................................................................................................8

......................................................

7

Functions of the Parliament

9

10

Preparation of the Bill

10

First Reading

11

Second Reading.................................................................................................................11

Third Reading

....................................................................................................................

13

Bill in the other House ......................................................................................................13

Joint sitting of both Houses...............................................................................................14 Assent of the President......................................................................................................15

Flaws in the Process and Suggested Reforms

16

Role of the Judiciary

16

Role of the President.........................................................................................................17

Lack of Direct Public Involvement and Negative Voting

18

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament Problems due to Coalition Governments .......................................................................... 19 Conclusion 21

Problems due to Coalition Governments

..........................................................................

19

Conclusion

21

Bibliography

22

The Legislative Process In The Indian Parliament Problems due to Coalition Governments .......................................................................... 19 Conclusion 21

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The Legislative Process In The Indian Parliament INTRODUCTION Law has been a part of Indian society

INTRODUCTION

Law has been a part of Indian society from the ancient times. The Artha Shastra and the Manu Smriti were noteworthy treatises on the law. Law in ancient India was often closely knit with religion. Since codified laws did not exist, ideal norms of physical and social behaviour were often made a part of religious norms and the concept of “Dharmawas used to enforce them. 1 Although some historians have also presented a conflicting view, that law in ancient India was divided into religious and secular and in the case of a clash between the two; the former was to be given precedence. 2 These Smritis have played a vital role in the framing of some of the contemporary Indian laws as well.

Most of the current Indian laws are largely on the lines of the English common law, because of the long period of the British rule in India. There are glimpses of influence from Irish, French, American, and Canadian laws as well. The legal system made by our founding fathers was more of an amalgamation of laws from other countries with the social and moral norms prevalent in the Indian society in those times. The law-makers also kept in mind the diversity of the Indian society, both religious and regional, and also showed a great deal of foresight, not only in making the laws but also by making provisions for future review and correction. The laws made were exhaustive to a great extent and most of them have stood the test of time, although review and amendment has been necessary in many cases along with the need for creation of new laws from time to time, which has been done in accordance with the procedures provided in the Constitution.

The law-making powers in India have been delegated to the Indian Parliament and the state legislatures. The distribution of powers is as per the provisions under the Seventh Schedule of the Constitution which contains three lists which enumerate the subjects on which the respective houses can legislate. 3

  • 1 Justice and Laws in Ancient India, available at http://www.theindianhistory.org/justice-and-laws-in-ancient- india.html (Last visited September 10, 2012)

  • 2 Legal System in Ancient India, available at http://www.indianetzone.com/50/legal_system_ancient_india.htm (Last visited September 10,2012)

  • 3 S.G. Deogaonkar, Parliamentary System in India, 95 (1997)

The Legislative Process In The Indian Parliament INTRODUCTION Law has been a part of Indian society

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament The law-making process in the Indian parliament involves various

The law-making process in the Indian parliament involves various steps, from the introduction to the final approval of the President. The process is a long one and has often been criticised on many grounds, justified or otherwise.

The following paper aims at studying this process in detail, as given in the constitution, along with the role of the Parliament, the Judiciary and the Executive. An attempt has been made to review the process and also compare it with the law making processes in other democratic countries and suggest reforms which could make it better and how the involvement of the public could be increased, so as to serve the main purpose of a democratic system of governance, that is, the welfare of the people.

The Legislative Process In The Indian Parliament The law-making process in the Indian parliament involves various

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament RESEARCH METHODOLOGY AIMS AND OBJECTIVES: This paper aims to

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

This paper aims to analyze the law-making process in the Indian Parliament.

SCOPE AND LIMITATIONS:

The researcher has restricted the analysis to the stages of the law-making and the defects in the process. Few comparisons with foreign methods of legislation have also been made.

RESEARCH QUESTIONS:

  • 1. What is the structure of the Indian Parliament?

  • 2. What are the stages of the legislative process in India?

  • 3. What are the flaws in the process?

  • 4. How the process can be made more efficient, transparent and democratic?

SOURCES OF DATA:

The researcher has relied on both primary data as well as secondary data for their research. Major articles and scholars, and news paper reports are given much importance.

METHOD OF WRITING:

This paper has both descriptive and analytical components to it.

MODE OF CITATION:

A uniform mode of citation has been used throughout the paper.

The Legislative Process In The Indian Parliament RESEARCH METHODOLOGY AIMS AND OBJECTIVES: This paper aims to

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The Legislative Process In The Indian Parliament THE PARLIAMENT OF INDIA HISTORY AND EVOLUTION: The concept

THE PARLIAMENT OF INDIA

HISTORY AND EVOLUTION:

The concept of representative bodies is not new to India. They have existed in our country since ancient times. Assemblies like the Samiti and the Sabha, the former an assembly of people’s representatives and the latter, a selected body of learned men and elders flourished

in many parts of India and functioned as a Legislature for handling matters of public interest

through consultation. 4 Democracy at the grassroots was in the form of Panchayats and Gram Sabhas, where the entire populace of the village would assemble and make decisions by simple majority based on public opinion. These instituions have continued to exist even now in one or the other form.

Although representative institutions and democratic traditions had deep roots in our country’s past, the modern parliamentary system in India owes its growth to India’s British connection. As Jawaharlal Nehru put it, “the Central Legislature of pre-independence days served as a training ground for parliamentary democracy in India and familiarised Indian Legislators with many elements of modern parliamentary procedure.5 Until 1853, the only legislative body in India was the Executive. The Charter Act of 1853 for the first time provided for a separate Legislature. It comprised of the Governor-General, four members of his Executive Council, the Chief Justice and another Supreme Court judge and others. 6

The Revolt of 1857 had brought to notice the strong need for legislative reforms in India, which culminated in the Indian Councils Act of 1861. A major advancement was the addition

of a fifth member to the Viceroy’s Executive Council, who was to be a person of the legal

profession, a jurist rather than a lawyer. 7 It also allowed the Governor-General to introduce the portfolio system, so that documents pertinent to a particular department could be sent to

  • 4 C.K Jain, The Union and State Legislatures in India, 3(1993)

  • 5 Id., at 6

  • 6 The Charter Act of 1853, available at http://www.indianetzone.com/24/the_charter_act_1853.htm (Last visited September 11,2012)

  • 7 The Indian Councils Act of 1861, available at http://www.indianetzone.com/24/the_indian_councils_act_1861.htm (Last visited September 11, 2012)

The Legislative Process In The Indian Parliament THE PARLIAMENT OF INDIA HISTORY AND EVOLUTION: The concept

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The Legislative Process In The Indian Parliament the respective Council member. Prior to this, documents relating

the respective Council member. Prior to this, documents relating to all official matters had to be brought before the whole council. And thus, it was through this act that the foundations of Cabinet government in India were laid. The Act of 1861 was followed by the Indian Councils Acts of 1892 and 1909. The 1892 Act provided for filling up of some seats in the Council through election. 8 The principle of election and representation was a result of the 1909 Act.

The current structure of the Indian parliament is more or less based on the structure of the Legislature that was first provided for in the Government of India Act of 1919. The Act, which gave effect to the Montague-Chelmsford reforms, established a bicameral legislature for the first time. The legislature consisted of the Governor-General and the two houses the Council of State and the Legislative Assembly. 9 This Act was followed by the Government of India Act of 1935, but the Constitution of the Central Government was not altered significantly and it remained what it was under the Act of 1919.

The Government of India Act, 1947 declared the Constituent Assembly to be a fully sovereign body and with the end of the British rule, took charge of the affairs of the country. Apart from being the body responsible for the framing of the Constitution, it functioned as a legislature as well. 10 When the Constitution came into force on January 26, 1950, a parliamentary system of government with a modern institutional framework was established. The Constituent Assembly continued to function as a provisional parliament until the elections in 1952 and a parliament based on the provisions provided in the Constitution had been established. 11

WHY DEMOCRACY AND WHY REPRESENTATIVE DEMOCRACY?

The decision to adopt a democratic system of government was made keeping in mind the fact that ours is a culturally and religiously diverse country. Also, the massive population of the country meant that direct democracy was a distant and unrealisable dream. So the best way to ensure participation and representation for everyone was this. Also, since the caste system

  • 8 Jain, Supra note 4, at 4

  • 9 Jain, Supra note 4, at 5

    • 10 Ronjoy Sen, The Constituent Assembly: Here’s where it all began, THE TIMES OF INDIA (January 23, 2010), available at http://articles.timesofindia.indiatimes.com/2010-01-23/india/28144602_1_constituent-assembly- partition-provincial-elections (Last visited on September 10, 2012)

    • 11 Rabindra Kumar Behuria, Indian Constituent Assembly: An Evaluation (2011), available at http://orissa.gov.in/e-magazine/Orissareview/2011/Jan/engpdf/43-45.pdf (Last visited on September 11,2012)

The Legislative Process In The Indian Parliament the respective Council member. Prior to this, documents relating

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The Legislative Process In The Indian Parliament was prevalent in India since ancient times, it was

was prevalent in India since ancient times, it was necessary to ensure participation for all so as to remove the disparity and social exclusion. A complete adult franchise was necessary to achieve the goal of social and economic equality. 12 Even after adopting a democratic form of government, a choice had to be made between a direct democracy and a representative democracy. Another possible reason that can be given along with the aim of ensuring equal status to all is that India learnt from the experiences of USA and France. While the United States chose a representative democracy, France went for a direct form of the same and had to suffer years of revolutionary turbulence as a result. 13

This chapter describes the structure of the Indian Parliament in detail.

STRUCTURE OF THE PARLIAMENT:

The Constitution of India provides for a Parliament consisting of the President (the Executive) and the two houses, viz. the Lok Sabha (the House of the People) and the Rajya Sabha (the Council of States). 14 The new Constitution had continued to recognize the two houses as the Council of States and the House of the People, and it was G.V. Mavalankar, the then Speaker of the House who gave the name Lok Sabha to the House of the People on May 14, 1954 and Dr. Sarvepalli Radhakrishnan, the then Chairman of the Council of States who gave the Council the name Rajya Sabha on August 23, 1954. 15

The Lok Sabha:

The Lok Sabha can have a maximum of five hundred and fifty two members, out of which upto twenty are to be representatives of the Union territories 16 and are to be elected in the manner which the Parliament by law may provide. 17 A maximum of five hundred and thirty

  • 12 Indian Institute of Advanced Study, Shimla, Law and Democracy in India, available at http://www.iias.org/Law-Democracy.html (Last visited on September 11,2012)

  • 13 Mr. Schwartz, The French Revolution: Causes, Outcomes, Conflicting Interpretations, available at https://www.mtholyoke.edu/courses/rschwart/hist151s03/french_rev_causes_consequences.htm (Last visited on September 11,2012)

  • 14 Art. 79, THE CONSTITUTION OF INDIA, 1950

  • 15 B.L Shankar, Valerian Rodrigues, The Indian Parliament: A Democracy at Work, 292, 2 nd edition (2011)

  • 16 Lok Sabha, available at http://loksabha.nic.in/ (Last visited September 12,2012)

  • 17 Art. 81(1)(b), THE CONSTITUTION OF INDIA, 1950

The Legislative Process In The Indian Parliament was prevalent in India since ancient times, it was

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The Legislative Process In The Indian Parliament members are to be chosen by direct election from

members are to be chosen by direct election from territorial constituencies in the States, 18 and not more than two members from the Anglo-Indian community to be nominated by the President, if in his opinion, the community is not adequately represented in the House. 19 The current strength of the Lok Sabha is five hundred and forty three, with five hundred and forty one elected and two nominated members. 20 The presiding officer of the Lok Sabha is elected from amongst the members by the members of the House. The Lok Sabha enjoys a certain degree of pre-eminence over the Rajya Sabha on certain issues, such as financial matters. Also, it is the Lok Sabha, to which the Council of Ministers is responsible. And thus, a motion of adjournment or no-confidence can only be passed in the Lok Sabha. On the other hand, Rajya Sabha has certain privileges of its own, such as, it is not subject to dissolution. In almost all other respects, the Constitution treats both houses as equal. 21

The Rajya Sabha:

The Rajya Sabha may have a maximum of two hundred and fifty members, of which not more than two hundred and thirty eight members shall be representatives of states and Union territories 22 and not more than twelve members to be nominated by the President. 23 These members shall consist of persons having special knowledge or practical experience in the fields of Literature, art, science and social service. 24 The current strength of the Rajya Sabha is two hundred and forty four, of which two hundred and thirty two are elected, and twelve members are nominated. 25

The two houses stand for two distinct modes of legitimacy: The Lok Sabha, being directly elected by universal adult franchise through regular elections represents the people in the

  • 18 Art. 81(1)(a), THE CONSTITUTION OF INDIA,1950

  • 19 Lok Sabha, available at http://loksabha.nic.in/ (Last visited on September 12,2012)

  • 20 FIFTENTH LOK SABHA MEMBERS HOME PAGE, available at http://164.100.47.5/Newmembers/memberlist.aspx#content (Last visited on September 12,2012)

  • 21 Jain, Supra note 4, at 12

  • 22 Art. 80(1)(b), THE CONSTITUTION OF INDIA, 1950

  • 23 Art. 80(1)(a), THE CONSTITUTION OF INDIA, 1950

  • 24 Art. 80(3), THE CONSTITUTION OF INDIA, 1950

  • 25 ALPHABETICAL LIST OF RAJYA SABHA MEMBERS (as on September 12,2012), available at http://164.100.47.5/Newmembers/memberlist.aspx#content (Last visited September 12,2012)

The Legislative Process In The Indian Parliament members are to be chosen by direct election from

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The Legislative Process In The Indian Parliament Union of India, while the Rajya Sabha represents the

Union of India, while the Rajya Sabha represents the wishes and aspirations of the states comprising the Indian Union. 26

FUNCTIONS OF THE PARLIAMENT:

Similar to other parliamentary democracies, the Parliament of India has the fundamental functions of legislation, overseeing of administration, passing budgets, ventilating public grievances, deciding upon matters such as development plans and international relations and making policies on various issues.

26 Shankar, Rodrigues, Supra note 14, at 293

The Legislative Process In The Indian Parliament Union of India, while the Rajya Sabha represents the

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The Legislative Process In The Indian Parliament STAGES OF THE LAW-MAKING PROCESS All proposals for legislation

STAGES OF THE LAW-MAKING PROCESS

All proposals for legislation are initiated in the form of bills, which when passed by the two houses and assented by the President become Acts. 27 On the basis of content, the bills may be classified as:

(1) Original bills: Bills for new proposals, ideas or policies; (2) Amending bill: Bills for modification, amendment or revision of existing acts; (3) Consolidating bill: Bills which seek to consolidate existing laws on a subject; (4) Expiring Laws (Continuance) Bills: Bills to continue expiring acts; (5) Bills to replace Ordinances; and (6) Constitutional Amendment Bills. 28 Money and financial bills are treated separately from other bills because of their special features. They can be introduced only after the prior consent of the President and can be introduced only in the Lok Sabha. 29 This chapter deals with the various stages of the Legislative process in India. A bill has to pass through the following stages before it becomes an act of the Parliament:

PREPARATION OF THE BILL:

All legislative proposals to be brought in the Parliament are to be brought in the form of bills. It may be presented by a government member or a private member. A bill originates as a legislative proposal. Government bills based on party policies or administrative needs are initiated either by a Ministry or a Minister after working out all the implications of the proposal. Opinion on legal matters or constitutional matters can be sought from the Law Ministry or the Attorney-General and if required, the respective state Ministries may also be

  • 27 Jain, Supra note 4, at 50

  • 28 Id.

  • 29 Jain, Supra note 4, at 50

The Legislative Process In The Indian Parliament STAGES OF THE LAW-MAKING PROCESS All proposals for legislation

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The Legislative Process In The Indian Parliament consulted to get a broader perspective. After this process

consulted to get a broader perspective. 30 After this process of scrutinising the proposal, the memorandum is sent to the Cabinet for approval. This proposal is then converted to a bill by skilled draftsmen. It is then re-scrutinised by the concerned Cabinet or the Ministry and may be re-drafted. 31

FIRST READING:

The first reading refers to motion for leave to introduce a bill, on the adoption of which the bill is introduced, or introduction of a bill already published in the Gazette. 32 A Bill may be introduced by a government member, that is, a minister or a private member. If the bill is introduced by a government member, it is called a Government bill and if introduced by a private member, it is called a Private member’s bill. 33 The Minister or member who is to introduce the Bill has to give a seven days written notice to the House about its introduction in the House. If the house grants the permission, the bill is introduced in the house. This constitutes the first reading of the Bill. If the introduction is opposed by a member, the Speaker may ask the introducer as well as the concerned member opposing the introduction of the bill to make statements. 34 If the introduction has been opposed on the ground that the legislation is outside the purview of the House’s legislative authority, the Speaker may ask for a full discussion. 35 Publication of the Bill in Gazette is done after its introduction in the House. However, with the permission of the Speaker, it may be published before its introduction and in that case, leave to introduce is not required. The Speaker of the House may also decide to refer the Bill to a Standing Committee. 36

  • 30 Deogaonkar, Supra note 3, at 99

  • 31 Deogaonkar, Supra note 3, at 99

  • 32 Jain, Supra note 4, at 50

  • 33 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 34 Deogaonkar, Supra note 3, at 100

  • 35 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 36 Id.

The Legislative Process In The Indian Parliament consulted to get a broader perspective. After this process

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The Legislative Process In The Indian Parliament SECOND READING: The second reading is the most important

SECOND READING:

The second reading is the most important part of the law-making process. The second reading consists of consideration of the bill in two stages. First, a general discussion of the Bill takes place in the House, where the principles underlying the Bill are discussed. 37 After this, the House may choose to refer the Bill either to a Select Committee of the House or to a Joint Committee of both the houses or an ad-hoc committee appointed specifically with regard to the Bill or may circulate the bill for eliciting opinion or may take the Bill into consideration straightaway. 38

If the Bill is referred to a Select or Joint Committee, the Committee closely scrutinises the Bill, clause-by-clause and recommends any amendments which it deems necessary. If required, the Committee may also take the opinion of associations, public bodies representing the affected interests or of individuals who have special knowledge or experience in the concerned matter. 39

This stage is the most important one in the law-making process for a variety of reasons. Usually, any discussion on a matter is likely to be affected by party limitations and ideologies. This is the stage which offers an opportunity for a dispassionate and objective consideration without any such restrictions. Also, since the opinions of those who are likely to be affected by the Bill are consulted, chances of a bad law being passed are greatly reduced. Public opinion may be obtained as well via State governments. 40 After this, the Committee submits its reports to the House. This is the first stage of the Second Reading.

The second stage of the Second Reading is the clause-by-clause consideration of the Bill in the House as reported or as introduced by the Select or Joint Committee. Every clause and schedule is discussed in detail in the house. Amendments are also recommended at this stage and if they are approved by a majority of present and voting members, they are accepted. After the discussions are over, and the bill has been approved by a majority of the members

  • 37 Jain, Supra note 4, at 50

  • 38 Jain, Supra note 4, at 50

  • 39 Jain, Supra note 4, at 50

  • 40 Deogaonkar, Supra note 3, at 100

The Legislative Process In The Indian Parliament SECOND READING: The second reading is the most important

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The Legislative Process In The Indian Parliament present and voting, the second reading is considered to

present and voting, the second reading is considered to be over. Only in the case of Constitution Amendment Bills, a two-third majority is required. 41

THIRD READING:

When all the clauses and schedules have been considered and voted upon in the Second reading is over, the member-in-charge for the Bill can ask for the Bill to be passed (or with Amendments). 42 This stage is the Third Reading. At this stage, there are no detailed discussions. Members may speak only in support of the Bill or oppose it. The details of the Bill are not discussed until it is absolutely necessary. If the bill is passed by a simple majority of the members present, it is deemed to be passed. 43 With the signature of the Secretary- General of the House, the Bill goes to the other House. 44

BILL IN THE OTHER HOUSE:

After the Bill has been passed in one House, it is then sent to the other House, where it goes through similar stages, except the introduction. 45 Since a Money Bill 46 can only be introduced in the Lok Sabha, it is first passed in the Lok Sabha, and then sent to the Rajya Sabha. The Rajya Sabha may suggest amendments and return it within fourteen days from the date of receipt. It is upto the Lok Sabha to accept or reject any or all of the amendments or recommendations made by the Rajya Sabha. Whether the Lok Sabha passes the Bill after making the amendments recommended by the Rajya Sabha, or without them, or the Rajya Sabha is not able to return the Bill within the period of fourteen days, or it passes the Bill as

  • 41 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 42 Id.

  • 43 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 44 Deogaonkar, Supra note 3, at 101

  • 45 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 46 Bills which exclusively contain provisions for imposition and abolition of taxes, for appropriation of moneys out of the Consolidated Fund, etc., are certified as Money Bills.

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The Legislative Process In The Indian Parliament it is, it is deemed to be passed by

it is, it is deemed to be passed by both the Houses. 47 In a way, the Rajya Sabha has no say with regard to Money Bills.

JOINT SITTING OF BOTH HOUSES:

A joint sitting of both the Houses may be called by the President if an ordinary Bill which has been passed by either of the two houses is pending in the other House and more than six months have lapsed, from the day of the receipt and still the deadlock has not been resolved. In a joint sitting, a decision is taken by a simple majority of the members of the two Houses present and voting and if passed, the bill is deemed to have been passed by both houses. A joint session cannot be called to consider the Constitution Amendment Bills. 48

ASSENT OF THE PRESIDENT:

After the Bill has been passed by both the Houses, it is sent to the President for his approval. The Secretariat of the House which passed it last obtains his assent, but in the case of a Money Bill or a Bill which has been passed in a joint sitting of both the Houses, it is the Lok Sabha Secretariat which obtains the assent of the President. 49

The President may approve the bill or return it with or without his recommendations for reconsideration. However, if the Houses pass the Bill, with or without amendments, then the President is bound by the Constitution to give his assent. The same applies to Constitution Amendment Bill. 50 Also, the President cannot disapprove a Money Bill, since it is introduced after his prior permission only.

  • 47 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 48 Id.

  • 49 Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

  • 50 Deogaonkar, Supra note 3, at 101

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The Legislative Process In The Indian Parliament FLAWS IN THE PROCESS AND SUGGESTED REFORMS The law-making

FLAWS IN THE PROCESS AND SUGGESTED REFORMS

The law-making process in India is quite well structured. The process is a fairly long one and any law, before being passed undergoes a lot of scrutiny which leaves very little scope for errors. Yet, time and again, fingers have been pointed at various flaws in the process, such as, lack of direct involvement of the public in law-making, lack of provisions for public initiatives, the role of the Rajya Sabha and the pseudo powers given of the President, which at times appear to be crippled. Another question that has been raised time and again is regarding the role of the Judiciary in law-making, that is, should the Judiciary play an active role in the process? The inefficiency of elected representatives has been a matter of concern as well. This chapter deals with some of these flaws, and an attempt has been made to suggest certain reforms which may help in making the process more efficient.

ROLE OF JUDICIARY:

To make the legislative process more efficient, it has been proposed time and again that the Judiciary should play a more direct role. Changes such as pre-legislative scrutiny by the Judiciary and giving the judiciary the power to make amendments to laws have been recommended. Although this appears to be a great initiative prima facie, it poses newer and greater problems. Firstly, since India is a democracy, the power to make laws and amend them has been conferred on the Parliament, since it is the body which represents citizens. So, giving the Judiciary the power to amend laws would in a way be against the spirit of democracy. Also, cases might arise in which the judges who played a part in making or amending a particular law may have to decide upon cases involving the same laws, which will pose a serious dilemma. The researcher observes that although the Judiciary should have a greater role to play, it should only be restricted to pre-legislative review rather than post legislative review and even then, the role should be restricted to making recommendations only. Since the legality and constitutionality of a Bill are reviewed by the Attorney-General

or the Law Ministry or both at the preparation stage only, the Judiciary’s role becomes even

more minimal. Thus, there is not much scope for a change here.

The Legislative Process In The Indian Parliament FLAWS IN THE PROCESS AND SUGGESTED REFORMS The law-making

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament THE ROLE OF THE RAJYA SABHA: The founding fathers

THE ROLE OF THE RAJYA SABHA:

The founding fathers had seen the Rajya Sabha as a revising and reflective chamber. It was supposed to be an impartial chamber, unlike the Lok Sabha, which is often swayed by the considerations of electoral outcome. In the words of Gopalaswami Ayyangar, “The most that we expect from the second chamber is to hold dignified debates on important issues and to delay legislation which might be the outcome of the passions of the moment”. 51 The upper house was supposed to be the intellectual face of the Parliament. It has been observed on many occasions recently that the Rajya Sabha has been merely been duplicating the work of the Lok Sabha without providing any significant inputs. Also, the nomination of some members has been questioned on the grounds that they will not be able to make any noteworthy contribution to the House, such as in the case of Sachin Tendulkar recently. And thus, the overall efficiency and ability of the House comes under the scanner. Another argument that has been raised is that the Rajya Sabha should have more powers with regard to Money Bills, where the Lok Sabha has complete authority.

ROLE OF THE PRESIDENT:

As mentioned above, the President can either send the bill back once or delay his assent but

cannot apply a total veto. This has at times been compared with the “pocket – veto” available

to the president in the United States, where the President may leave the Bill unsigned in the

specified period, which is the last ten days before the end of a session, and in such a situation, the Bill lapses. 52 But this is a flawed comparison, since in India; the Bill does not lapse and may be with the President for as long as he may please. If the President returns it once, with or without amendments, and the Bill is passed again, with or without adhering to the

President’s recommendations, he has to sign it. This poses a problem that the Parliament may

have its way in making laws, since the President can send it back only once. And in case he decides to suspend it, there is a possibility that there may be serious delays in the legislative

process. The researcher feels that there is a need to make amendments to the veto powers available to the President and provisions should be made to solve these problems.

  • 51 Shankar, Rodrigues, Supra note 14 at 296

  • 52 Veto Power of the President, available at http://www.answers.com/topic/veto-power-of-the-president (Last visited on September 14,2012)

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The Legislative Process In The Indian Parliament LACK OF DIRECT PUBLIC INVOLVEMENT AND NEGATIVE VOTING: One

LACK OF DIRECT PUBLIC INVOLVEMENT AND NEGATIVE VOTING:

One of the major flaws in India’s democratic process is that the citizenry does not have a

direct involvement in the law-making process. The people do not get to choose what laws

they would want to be formed, the only choice on offer is of who will make the laws for them, which many a times ends up being a choice of choosing the less worse of the available lot. Both the Law Commission and the Election Commission have proposed that a neutral/negative voting option should be introduced. This means, giving the voters a choice

of rejecting all the candidates by selecting a “none of the above option” instead of a candidate’s name, along with the provision of nullifying such an election if a certain percentage of voters choose this option. This would go a long way in helping in negating the widespread use of money and power prevalent in elections. 53

Although India is a representative democracy, the need of provisions for direct participation by the citizens has often been felt. For example, in the United States, a voter or an organisation may draft a proposed law and circulate a petition asking that the Bill be submitted to popular vote. Then, a certain number of signatures are required, which is usually from three to fifteen percent of the votes cast in the last election. If the petition meets all the legal requirements, it is put before the public to be approved or rejected. If such a Bill is passed, the Governor cannot veto it. 54

In a referendum, laws or other measures are referred to the voters simply for approval or rejection and the citizenry does not originate the issue on which it votes. 55 But again, there are arguments both in support and opposition to the proposal. Those in support contend that this instrument can be of great help in solving problems where opinions are divided and the outcome will have a significant impact on a considerable part of the public. 56 But the use of this instrument would also translate into undermining the role of elected representatives. So,

  • 53 Negative/Neutral Voting (2012), available at http://indiaprospect.org/Blog/?p=146 (Last visited on September

15,2012)

  • 54 Initiative and Referendum, available at http://history.howstuffworks.com/american-history/initiative-and- referendum.htm (Last visited on September 15,2012)

  • 55 Id.

  • 56 Advantages and Disadvantages of the Referendum Instrument, available at http://history.howstuffworks.com/american-history/initiative-and-referendum.htm (Last visited on September

15,2012)

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The Legislative Process In The Indian Parliament the need is to find some sort of a

the need is to find some sort of a middle path where both direct and representative democracy can be accommodated.

Another method which could be adopted to make the process more transparent and democratic is pre-legislative scrutiny by the public. Since the number of bills being considered by the Parliament at any point of time is very high, information regarding laws becomes available to the public post-facto. Lack of public scrutiny and transparency in the legislative process has often been criticised because of the fact that the laws being made have a tremendous impact on the lives of people. 57 For example, in the case of the Civil Nuclear Liability Bill, Siddharth Varadarajan had said, “a complex legislation with the potential to affect the lives of tens of millions of people was being pushed through with stealth, subterfuge and the barest minimum of consultation.58 While making decisions which have a widespread effect, due consultation from the public should be made. The need for this becomes even greater in a country like India where the cultural and social diversities are huge and play a major role in shaping the lives of people.

PROBLEMS DUE TO COALITION GOVERNMENTS:

A Coalition government is one in which several parties cooperate. Coalition governments often cause many delays in the law-making process and many a times also hamper the democratic spirit. This is because in such a rule, a minority party is quite often able to impose itself on the majority and the majority party also has to agree because of the political compromise it has made. Thus the decisions made are often not in the best interest of the society. It is almost like a political blackmail. 59 Secondly, coalition governments reduce the transparency in governments. Since the decisions that are to be made are based on political compromises made after elections, pre-election manifestos and ideologies become irrelevant. It is safe to say that coalition governments are in a way a compromise with democracy as

  • 57 Mandakini Devasher, Transparency in Legislative Process (December 27,2010), AI INDIA’S BLOG, available at http://www.accountabilityindia.in/accountabilityblog/1908-transparency-legislative-processes (last visited on September 15,2012)

  • 58 Siddharth Varadarajan, This is no way to Write a Law, THE HINDU (August 24,2010), available at http://www.thehindu.com/opinion/lead/article592116.ece?homepage=true&css=print (Last visited September

15,2012)

  • 59 Dr. A.K Pandey, Coalition Politics in India: Prospects and Problems, 1(12), International Research Journal, 59, 61 (2010), available at http://www.ssmrae.com/admin/images/7dc4b27aaee9e21c05dd9316b7bebdac.pdf (Last visited on Spetember 16,2012)

The Legislative Process In The Indian Parliament the need is to find some sort of a

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The Legislative Process In The Indian Parliament well as with the welfare of the people. In

well as with the welfare of the people. In a single party rule, the party may issue a whip, but this cannot be done in a multi-party government, where at some or the other stage, the majority party has to succumb to the demands of the opposition. This has been a major issue for a very long time and needs to be addressed.

The Legislative Process In The Indian Parliament well as with the welfare of the people. In

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The Legislative Process In The Indian Parliament CONCLUSION The law-making process in India is a long

CONCLUSION

The law-making process in India is a long one, but it is also quite exhaustive. Barring a few limitations, it is more or less complete. Although it is slow and time-consuming at times, which does not allow for a speedy formation of laws, it also filters out bad laws and prevents them from being passed.

The most important stage of the process is quite obviously the Select Committees stage. Since we do not have provisions for direct public involvement, this step becomes even more pivotal. There are some problems too which need to be addressed. One of the major problems is that the opposition at times seems to have forgotten its role and rather than making constructive suggestions, it seems to oppose all Government proposals just for the sake of it, except for a very few instances. There have even been instances where the opposition has opposed proposals which were first brought forth during its own time in power. There is a great need for the opposition to understand its role in assisting the government and work with it towards the welfare of the people.

It can be concluded that the current legislative process needs some amendments at various levels to make it more transparent and more accountable. If the flaws in the current system are amended, we could have a much more law-making system in place which would go a long way both in ensuring the welfare of the people as well as in the overall development of the country.

The Legislative Process In The Indian Parliament CONCLUSION The law-making process in India is a long

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament BIBLIOGRAPHY B OOKS: S.G Deogaonkar, Parliamentary System in India

BIBLIOGRAPHY

BOOKS:

S.G Deogaonkar, Parliamentary System in India, (CONCEPT PUBLISHING COMPANY: NEW DELHI, 1997)

C.K Jain, The Parliament of India, (ALLIED PUBLISHERS LIMITED: NEW DELHI, 1993)

B.L Shankar, Valerian Rodrigues, The Indian Parliament, 2 nd Edn. (OXFORD UNIVERSITY

PRESS: NEW DELHI, 2011)

ARTICLES:

Justice and Laws in Ancient India, available at http://www.theindianhistory.org/justice-and- laws-in-ancient-india.html (Last visited September 10, 2012)

Legal System in Ancient India, available at http://www.indianetzone.com/50/legal_system_ancient_india.htm (Last visited September 10,

2012)

The Charter Act of 1853, available at http://www.indianetzone.com/24/the_charter_act_1853.htm (Last visited September 11,

2012)

The Indian Councils Act of 1861, available at http://www.indianetzone.com/24/the_indian_councils_act_1861.htm (Last visited September 11, 2012)

Ronjoy Sen, The Constituent Assembly: Here’s where it all began, THE TIMES OF INDIA (January 23, 2010), available at http://articles.timesofindia.indiatimes.com/2010-01- 23/india/28144602_1_constituent-assembly-partition-provincial-elections (Last visited on September 10, 2012)

Rabindra Kumar Behuria, Indian Constituent Assembly: An Evaluation (2011), available at http://orissa.gov.in/e-magazine/Orissareview/2011/Jan/engpdf/43-45.pdf (Last visited on September 11, 2012)

The Legislative Process In The Indian Parliament BIBLIOGRAPHY B OOKS: S.G Deogaonkar, Parliamentary System in India

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The Legislative Process In The Indian Parliament Indian Institute of Advanced Study, Shimla, Law and Democracy

Indian Institute of Advanced Study, Shimla, Law and Democracy in India, available at http://www.iias.org/Law-Democracy.html (Last visited September 11, 2012)

Lok Sabha, available at http://loksabha.nic.in/ (Last visited September 12, 2012)

FIFTENTH LOK SABHA MEMBERS HOME PAGE, available at http://164.100.47.5/Newmembers/memberlist.aspx#content (Last visited on September 12,

2012)

ALPHABETICAL LIST OF RAJYA SABHA MEMBERS (as on September 12, 2012), available at http://164.100.47.5/Newmembers/memberlist.aspx#content (Last visited September 12, 2012)

Veto Power of the President, available at http://www.answers.com/topic/veto-power-of-the- president (Last visited on September 14, 2012)

Negative/Neutral Voting (2012), available at http://indiaprospect.org/Blog/?p=146 (Last visited on September 15, 2012)

Initiative and Referendum, available at http://history.howstuffworks.com/american- history/initiative-and-referendum.htm (Last visited on September 15, 2012)

Advantages and Disadvantages of the Referendum Instrument, available at http://history.howstuffworks.com/american-history/initiative-and-referendum.htm (Last visited on September 15, 2012)

Mandakini Devasher, Transparency in Legislative Process (December 27, 2010), AI INDIA’S BLOG, available at http://www.accountabilityindia.in/accountabilityblog/1908- transparency-legislative-processes (last visited on September 15, 2012)

Siddharth Varadarajan, This is no way to Write a Law, THE HINDU (August 24, 2010), available at

http://www.thehindu.com/opinion/lead/article592116.ece?homepage=true&css=print (Last visited September 15, 2012)

Dr. A.K Pandey, Coalition Politics in India: Prospects and Problems, 1(12), International Research Journal, 59, 61 (2010), available at http://www.ssmrae.com/admin/images/7dc4b27aaee9e21c05dd9316b7bebdac.pdf (Last visited on September 16, 2012)

REPORTS:

Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf (Last visited on September 12, 2012)

The Legislative Process In The Indian Parliament Indian Institute of Advanced Study, Shimla, Law and Democracy

National law school of India university, Bangalore

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The Legislative Process In The Indian Parliament

The Legislative Process In The Indian Parliament W EB S OURCES: www.theindianhistory.org www.indianetzone.com articles.timesofindia.indiatimes.com www.orissa.gov.in www.iias.org

WEB SOURCES:

www.theindianhistory.org

www.indianetzone.com

articles.timesofindia.indiatimes.com

www.orissa.gov.in

www.iias.org

www.loksabha.nic.in

www.rajyasabha.nic.in

www.answers.com

www.indiaprospect.org

www.history.howstuffworks.com

www.accountabilityindia.in

www.thehindu.com

www.ssmrae.com

The Legislative Process In The Indian Parliament W EB S OURCES: www.theindianhistory.org www.indianetzone.com articles.timesofindia.indiatimes.com www.orissa.gov.in www.iias.org

National law school of India university, Bangalore

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