CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

LEGISLATIVE DRAFTING PROCESS IN INDIA: AN ANALYSIS

SUBMITTED TO- DR. PRADIP KUMAR DAS

PROFESSOR
SLG
CUSB

SUBMITTED BY- SHIVAM KUMAR PANDEY

B.SC. LLB (TENTH SEMESTER)
CUSB1513115016

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 CONTENT
1. Introduction
2. Research Methodology
3. The Parliament of India
4. History and Evolution
5. Why Democracy and why representative democracy?
6. Structure of the Parliament
7. Functions of the Parliament
8. Stages of the Law-Making Process
9. Preparation of the Bill
10. First Reading
11. Second Reading
12. Third Reading
13. Bill in the other House
14. Joint sitting of both Houses
15. Assent of the President
16. Flaws in the Process and Suggested Reforms
17. Role of the Judiciary
18. Role of the Rajya Sabha
19. Role of the President
20. Lack of Direct Public Involvement and Negative Voting
21. The Legislative Process In The Indian Parliament
22. Problems due to Coalition Governments
23. Conclusion
24. Bibliography

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 ACKNOWLEDGEMENT

Firstly, I would like to express my sincere gratitude to my professor Dr. Pradip Kumar Das
for giving me this assignment and helping me acquire a comprehensive knowledge of
Legislative Drafting Process in our country.

I would like to thanks my classmates. I benefitted a lot from their discussion.

I would like to thank my university and its administration, library and computer centre staff
for providing me with the infrastructure and a conductive environment to complete my
project.

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 Preface

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 “ Dharma” was 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.

The law-making process in the Indian parliament involves various steps, from the
1
 Justice and Laws in Ancient India, available at http://www.theindianhistory.org/justice-and-laws-in-
ancientindia.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)

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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.

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 INTRODUCTION

LAWMAKING PROCEDURE IN INDIA

India is a federal country, laws can be made separately at different levels by the Union
Government (Federal Government) for the entire country and by the State Governments for
their respective states. The legislative procedure in India for the Union Government requires
that the proposed law or passing through two houses of the Indian legislature. The legislatives
procedure for the states requires that the proposed law or bill has to be passed in the lok sabha
State Vidhan Sabha (Lower House) and then through the State Vidhan Parishad (Upper
House) if there exists one in that state.

DIFFERENCE BETWEEN A BILL AND AN ACT

Legislative proposals are brought before either house of the Parliament of India in the form
of a bill. A bill is the draft of a legislative proposal, which, when passed by both houses of
Parliament and assented to by the President, becomes an Act of Parliament. As soon as the
bill has been framed, it has to be published in the news papers and suggestions are invited
from the general people, and after going through the suggestions of the people the bill is
amended and then Bill may be introduced in the Parliament by ministers or private members.
The former are called government bills and the latter, private members' bills. Bills may also
be classified as public bills and private bills. A public bill is one referring to a matter
applying to the public in general, whereas a private bill relates to a particular person or
corporation or institution. The Orphanages and Charitable Homes Bill or the  Muslim Waqfs
Bills are examples of private bills.

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.

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:

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(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

Parliament: 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.

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
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
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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.

SECOND READING:
DISCUSSION STAGE

This stage concerns the consideration of the bill and its provisions and is further divided into
three stages.

First stage

On a date fixed for taking up consideration of the bill, there takes place a general discussion
when only the principles are taken up for discussion. At this stage, three options are open to
the house. The bill may be straightaway be taken into consideration or it may be referred to
any of the Standing Committees or it may be circulated for the purpose of eliciting general
opinion thereon

Second stage, that is, discussion on the report

The next stage consists of a clause-by-clause consideration of the bill as reported by the
committee. When all the clauses have been put to vote and disposed of, the second reading of
the bill is over.

Third stage

Changes or amendments to the bill can be made only in this stage. Amendments become a
part of a bill if they are accepted by a majority of the members present and voting.

THIRD READING
voting stage

The next stage is the third reading. The debate on the third reading of a bill is of a restricted
character. It is confined only to arguments either in support of the bill or for its rejection as a
whole, without referring to its details. After the bill is passed, it is sent to the other house. If
the number of votes in favor and against the bill are same, then the Presiding officer (Speaker
of the Lok Sabha or the Chairman of the Rajya Sabha or anyone who is acting on their
behalf) of the house get a chance to cast his/her vote which is referred to as a Casting Vote
Right.

Bill in the other house

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After a bill, other than a money bill, is transmitted to the Rajya Sabha, it goes through all the
stages in that house as that in the first house. But if the bill passed by one house is amended
by the other house, it goes back to the originating house. If the originating house does not
agree with the amendments, it shall be that the two houses have disagreed.

Joint-session of both houses

In case of a deadlock between the two houses or in a case where more than six months lapse
in the other house, the President may summon a joint session of the two houses which is
presided over by the Speaker of the Lok Sabha and the deadlock is resolved by simple
majority. Until now, only three bills: the  Dowry Prohibition Act (1961), the  Banking
Service Commission Repeal Bill (1978) and the  Prevention of Terrorist Activities Act (2002)
have been passed at joint sessions.

President's approval

When a bill has been passed, it is sent to the President for his/her approval. The President can
assent or withhold his/her assent to a bill or he/she can return a bill, other than a money bill
which is recommended by president himself  to the houses, with his/her recommendations. If
the President gives his/her assent, the bill becomes an Act from the date of his/her assent. If
he/she withholds his assent, the bill is dropped, which is known as pocket veto. The pocket
veto is not written in the constitution and has only been exercised once by President Zail
Singh: in 1986, over the postal act where the government wanted to open postal letters
without warrant. If the president returns it for reconsideration, the Parliament must do so, but
if it is passed again and returned to him/her, he/she must give his/her assent to it. In the case
of a Constitutional Amendment Bill, the President is bound to give his/her assent. In case of 
the State Governments, the consent of the State's Governor has to be obtained.3

3
Gupta, V. P. (26 Aug 2002). "The President’s role" (http:/  / articles.timesofindia.indiatimes.com/ 2002-08-
26/ education/  27323497_1_powers-impeachment-resolution). Times of India. . Retrieved January 4, 2012.

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 CONCLUSION

Legislative drafting is a difficult art. It is the art of expressing in concise and clear language
the ideas of other people. It is difficult enough to express one’s own ideas. It is much more
difficult to express other people’s ideas. The difficulty is all the greater when there is a doubt
about the person whose ideas one is required to express. Whose ideas does a legislative
enactment express ? Controversy, if not confusion, commences with this question. Are they
the ideas of the Minister-in-charge of a particular Bill or the officer of the Ministry who
instructs the draftsman or the collection of heterogeneous people constitut- ing the
legislature ? Purists would at once point to the legislature. In legal theory, a statute always
expresses the intention of the legislature. But like all theories this one is far removed from
facts. This becomes crystal clear if we understand the mechanism of modern law making. A
legislative proposal is first conceived in the Secretariat. Sometimes the idea of the proposal
emanates from the Minister himself. The proposal is examined in the administrative Ministry
but it is very rarely that, as required by the rules, a detailed memorandum of the proposal is
prepared. Generally, the officer in the adminis- trative Ministry concerned with the legislative
proposal rushes to the draftsman and asks him to produce a Bill. The draftsman insists upon
precise instructions. But there is no time for such petty details. Oral discussions follow. The
draftsman produces some kind of Bill, hoping that he has correctly understood the
instructions given to him. His instructors harbour the same hope. The Bill is then rushed
through the legislature for want of time.

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 Bibliography

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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

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