LAW MAKING BY LEGISLATURE

The basic function of Parliament is to make laws. All legislative proposals have to be brought in the form of Bills
before Parliament. A Bill is a statute in draft and cannot become law unless it has received the approval of both the
Houses of Parliament and the assent of the President of India.

The process of law making begins with the introduction of a Bill in either House of Parliament. A Bill can be
introduced either by a Minister or a member other than a Minister. In the former case, it is called a Government Bill
and in the latter case, it is known as a Private Member's Bill.

A Bill undergoes three readings in each House, i.e., the Lok Sabha and the Rajya Sabha, before it is submitted to the
President for assent.

Stage 1: First reading

The legislative procedure begins with the introduction of the bill in either houses of Parliament.

It can be introduced by either a minister or a private member. The presiding officer of the house is informed first. The
officer puts the question of introduction of bill before the house, if approved (generally by voice vote), the person
introduces the bill.

This is the first reading. He asks for leave before introducing the bill. He reads the title and objective of the bill.

Stage 2: Publication in gazette

After the bill introduction, it is published in the official gazette.

Stage 3: Reference to the Standing Committee

The presiding officer can refer the bill to the concerned standing committee for thorough study and examination of
general principles and clauses of the bill. After consideration, the committee submits a report on the bill to the house.
This report serves as reliable advice by the house.

Stage 4: Second Reading

This is a very crucial stage. A general discussion takes place over the bill in the house. There it can be referred to a
select or joint committee for a clause by clause consideration along with expert opinion. Alternatively, the house can
consider the bill clause by clause as introduced or reported by the select or joint committee. After general discussion,
the house can -

○ straightaway go into detailed clause by clause consideration.

○ refer that bill to a select committee of the House.

○ refer it to the Joint Committee of both Houses.

○ circulate it among the people to elicit public opinion

Stage 5: Third Reading

After the completion of the second reading, the member-in-charge can move that the bill be passed. At this stage any
discussion is confined to arguments regarding passage or no passage of the bill. Then voting happens and fate of the
bill is decided.

Stage 6: Bill is sent in the other House

After being passed by one house, the bill is sent to the other house for consideration. In the second house also, the bill
goes through first reading, second reading and third reading.
There are four actions that might be taken up the other house:

1. It can pass the bill in the form sent by the first house. Then the bill is sent to the President for his assent.

2. It can pass the bill with amendments. Then the bill has to be returned to the first House for reconsideration. If
the first house does not agrees to the recommendations, then there is a deadlock.

3. It may reject it altogether. This means there is a deadlock which can be resolved by a joint sitting.

4. It may not take any action on the bill and keep it pending.

Stage 7: President's assent to the Bill

Every bill is presented to the President for his approval after being passed by both the houses of Parliament for his
assent. The President can take up any of the three alternative action over the bill.

1. He may give his assent to the bill. Thereafter, the bill becomes a law.

2. He may return the bill with suggested changes for reconsideration of the House of its origin. However, if both
houses pass the bill again ( with or without changes), the President has to give his assent. This is known as
Suspensive veto of the President. It is not applicable on Money bills though.

3. He may withhold his assent, neither ratifying it nor rejecting it. this is known as the Pocket veto of the
President. It was used for first time in 1986 by President Zail Singh with respect to the Indian Post Office Bill.
This is not a explicit veto mentioned in the Constitution but is excercised by the virtue of no time frame
mentioned for giving assent to the bill.

LAW MAKING BY EXECUTIVE

Ordinance making powers of the President -Article 123 of the Constitution grants the President certain law making
powers to promulgate Ordinances when either of the two Houses of

Parliament is not in session and hence it is not possible to enact laws in the Parliament.

An Ordinance may relate to any subject that the Parliament has the power to legislate on. Conversely, it has the same
limitations as the Parliament to legislate, given the distribution of powers between the Union, State and Concurrent
Lists.

Separation of powers between the Legislature, Executive and Judiciary In India, the central and state legislatures are
responsible for law making, the central and state governments are responsible for the implementation of laws and the
judiciary (Supreme Court, High Courts and lower courts) interprets these laws. However, there are several overlaps in
the functions and powers of the three institutions

Following limitations exist with regard to the Ordinance making power of the executive:

1. Legislature is not in session: The President can only promulgate an Ordinance when either of the two Houses
of

2. Parliament is not in session.

3. Immediate action is required: The President cannot promulgate an Ordinance unless he is satisfied that there
are circumstances that require taking 'immediate action'.

4. Parliamentary approval during session: Ordinances must be approved by Parliament within six weeks of
reassembling or they shall cease to operate. They will also cease to operate in case resolutions disapproving
the Ordinance are passed by both the Houses
DELAGATED LEGISLATION

Since the Parliament cannot deal with every aspect of the governance system by themselves, they delegate these
functions to the authorities established by law. This delegation is noted in statutes, commonly called delegated
legislations.

E.g. - Regulations and by-laws (law made by a local authority which applies only in its area) under legislations.

Significance:

○ It allows flexibility and adaptability in the law-making process. By delegating certain powers, the legislature
can respond more quickly and efficiently to changing circumstances and emerging issues.

○ Delegated authorities with extra skills, experience, and knowledge (in fields like technology, environment etc.
where the Parliament may not always have an expertise) are more suitable for making law.

Criticism:

○ It can lead to a lack of accountability/transparency in the law-making process as laws made by executive
agencies/administrative bodies are not subiected to the same level of public scrutiny and debate as laws made
by legislature.

○ Additionally, it can also lead to a concentration of power in the executive and administrative branches of
government, which may undermine the principle of separation of powers.

○ However, certain types of delegated legislation, such as ordinances must be approved by the legislature.

LAW MAKING BY JUDICIARY

It can hardly be a matter of serious dispute at the present day that, within certain narrow but not clearly defined limits;
new law is created by the judiciary. Certainly, it has been hard to take declaratory theory of adjudication seriously.

In India, a look at the judicial behavior in the last decades shows that the Supreme Court has gone through many
changes in its approach.

The power of judicial review enables the judiciary to play a crucial role; this is so because the bare text of the
Constitution does not represent in itself the 'living law' of the country. The Constitution of India explicitly confers the
power of judicial review in several articles such as Arts. 13, 32, 131-136, 143, 226 and 246.

Further, under Art. 141, the Supreme Court has the power to declare any law which has the force of an authoritative
precedent for all other courts. Under Art. 142, the Supreme Court is entitled to pass any decree, or make any order, as
it necessary for doing complete justice.

A cumulative effect of all these provisions makes it abundantly clear that the judiciary in India has vast powers under
the Constitutional scheme which they use to justify judicial law-making. Bhagwati, J., in one of his speech remarked
that:

It is recognised on all hands that Judges do not merely discover law, but they also make law... Even when a judge is
concerned with interpretation of a bill of rights or a statute, there is ample scope for him to develop and mould the
law……To meet the needs of the society, the Judges do make law and it is now recognised everywhere that Judges take
part in this law-making function and, therefore, Judges make law.24

In Indian context, an example of judicial law-making can best be evidenced from the complete shift accorded by the
Supreme Court of India in interpreting Article 21 of the Constitution from Gopalan to Maneka. Thesignificant aspect
of this case is that the Court gave a new dimension to the principle of constitutional interpretation that, “There cannot
be a mere textual construction of the words of the Constitution. Those words are pregnant with meanings that unfold
when different situation arise”. The Court started interpreting the Constitution in a liberal manner, so as to anticipate
and take account of changing conditions.

Innovations in the field of Public Interest Litigation provided further thrust to the notion that judges do indeed make
law through directions where there was a pressing social demand. And thus followed a long line of cases recognizing
various rights such as the right to clean environment, drinking water, livelihood, medical care, preservation of culture
and heritage1 self-preservation, protection against sexual molestation and harassment,release and rehabilitation of
bonded labours, emergency medical treatment to persons in need.

Special rights of accused and convicts such as legal aid, speedy trial,prohibition on hand cuffing, human conditions
inside the prisons, availability of the fundamental rights during detention, prohibition on cruel and unusual
punishments, compensation for violation of the right to life, and fair trial was also recognised. Further, the Court went
into the allegations of the killing of innocent people or suspected accused through false encounters, the death of
persons in police custody because of torture,45 and the cases of the blinding of prisoners by the police.

Further, it may be noted that the Court has on several occasions issued directions, directives in respect of those
situations which are not covered by any law or there exist imperfections in law. The decision in Vishaka v. State of
Rajasthan, where the Court gave several directions to prevent sexual harassment of women at the workplace.

Similarly, in Laxmi Kant Pandey v. Union of India, the Court issued directions regarding the procedure and the
necessary precautions to be followed in adoption of Indian children by foreign adoptive parents.

In V.K. Naswa v. Union of India, the Court observed that it is crystal clear that the Court has a very limited role and
in exercise of that, it is not open to have judicial legislation. Neither the Court can legislate, nor it has any competence
to issue directions to the legislature to enact the law in a particular manner. Though in certain cases, the courts in India
have refused to accept that in judicial process the judges do make law. However, there are many instances which
clearly depicts that judges in India have indulged in lawmaking, though such lawmaking is not at par with the
legislature's power to enact law.

PRINCIPLE OF UTILITY

The principle of utility, also known as the principle of greatest happiness or the greatest happiness principle, is a
concept in jurisprudence that asserts that the ultimate goal of law and justice is to maximize the overall happiness or
well-being of society as a whole. This principle is based on the utilitarian philosophy, which argues that the moral
value of an action is determined by its ability to promote the greatest amount of happiness for the greatest number of
people.

In the context of jurisprudence, the principle of utility is often used to guide decisions related to public policy,
legislation, and the interpretation of laws. It suggests that laws and legal decisions should be made in a way that
maximizes the overall happiness and well-being of society.

Bentham argued that the moral value of an action should be judged based on its ability to promote the greatest amount
of happiness or pleasure for the greatest number of people affected by the action.

Bentham believed that human behavior is primarily motivated by the pursuit of pleasure and the avoidance of pain. He
argued that the role of law and government should be to promote the greatest amount of happiness and pleasure for
society as a whole. In his view, laws should be designed to minimize pain and maximize pleasure, and should be based
on empirical evidence and rational analysis.

Bentham's principle of utility has had a significant impact on many areas of philosophy, ethics, and public policy.
It has been used to guide decision-making in fields such as economics, law, and politics, and has influenced the
development of modern theories of social welfare, environmental ethics, and animal rights.

Proponents of the principle argue that it remains a valuable tool for evaluating the ethical and social implications of
human actions and policies.

Seven Dimensions of Pleasure or Pain:-

1. Intensity,

2. Duration,

3. Certainty (probability),

4. Propinquity,

5. Fecundity,

6. Purity, (not leading to further pleasure or pain),

7. Extent (the number of people affected)

There are several criticisms of Jeremy Bentham's principle of utility, which is a key concept in utilitarianism. Some of
the main criticisms include:

Difficulty in measuring happiness: One of the primary criticisms of the principle of utility is that it can be difficult to
measure and compare happiness or pleasure across individuals and groups. It is subjective and varies from person to
person, and there is no universally accepted way to quantify or compare happiness.

Neglect of individual rights and liberties: The principle of utility can also be criticized for neglecting the importance
of individual rights and liberties. If the pursuit of the greatest happiness for the greatest number of people comes at the
expense of individual freedoms or liberties, it may be unjust or unfair.

Focus on short-term effects: The principle of utility tends to focus on short-term effects rather than long-term
consequences.

This can lead to policies that provide immediate benefits but have negative long-term consequences.

Inability to account for non-utilitarian values: The principle of utility also cannot account for non-utilitarian values,
such as rights, justice, and equality. It may be inadequate to address complex ethical issues that require consideration
of multiple values and principles.

Potential for tyranny of the majority: The principle of utility can also lead to a "tyranny of the majority" where the
interests of minority groups or individuals are neglected in the pursuit of the greatest happiness for the greatest number
of people.

The principle of utility can have a significant impact on the process of lawmaking. Lawmakers may use this principle as a guide
when considering new laws or revising existing laws. Specifically, they may ask themselves whether the proposed law will
promote the greatest happiness for the greatest number of people.

In order to apply the principle of utility to lawmaking, lawmakers may consider several factors, such as:

The potential benefits of the law: Lawmakers may assess the potential benefits of a new law, such as whether it will
promote public safety, health, or welfare.

The potential costs of the law: Lawmakers may also consider the potential costs of the law, such as whether it will
create undue burdens for individuals or businesses.
The impact on disadvantaged groups: Lawmakers may consider the impact of the law on disadvantaged groups,
such as low-income individuals or minorities. They may seek to promote greater equity and fairness in the legal
system.

Ultimately, the application of the principle of utility to lawmaking can help to ensure that laws are designed to
promote the greatest overall happiness and well-being for society as a whole. However, it is important to balance this
principle with other important legal values, such as individual rights, fairness, and justice.

MORALS AND LEGISLATIONS

There are many different beliefs, values, laws, and social standards in the world around us; an individual adheres to
such types of norms that describe how one should behave in society in order to live in peace. To prevent ambiguity
and confusion, it is essential to distinguish between each of these. Law and morality are two conflicts that are
frequently brought up together.

Laws are explicit guidelines that outline what we should and shouldn’t do as members of society. To establish a
fundamental and upheld norm of conduct for the benefit of society, these are enforced by the state and the judicial
system. On the other hand, morality refers to a loose framework of principles, values, beliefs, customs, and ways of
life.

Although morality cannot be enforced by law, there is social pressure. Numerous jurists argued the same question of
law and morality in jurisprudence, which led to the emergence of distinct points of view.

Four stages in the development of the law with respect to morality:-

There are four stages that are described by Prof. Roscoe Pound in the development of the law with respect to morality.

1. Morals as a basis of law

2. Morals as test of law
3. Morals as end of law
4. Morality as part of law

Morality the basis of law:

There has never been a solid division created between morality and law throughout history. Due to a lack of
distinction, all laws originated from what members of a community believed to be morally right.

The state eventually adopted what was ethically just and gave it the shape of laws, rules, and regulations. As a result,
law and morality are two notions that are similar in that they both derive from the ideals that are prevalent among
people. For instance, raping or killing someone is morally wrong. This principle has been formalised into law.

Morality test of law:

The entire purpose of having laws is to uphold justice in society and act in a way that is best for everyone’s
well-being. Any law that violates moral principles needs to be repealed, and the morality of law can be assessed by
considering whether it is consistent with moral principles. There shouldn’t be any conflict between law and morality,
according to many jurists, because the principle of fairness falls squarely within the purview of morality.

Morals as end of law

The goal of the law is to uphold justice, which is heavily founded on morality. In most languages used across the
world, words are used to convey the concepts of justice and morality as well. morality is dharma.

Morality part of law:

It is said that morality is somehow an essential component of law or the formation of the law, even though law and
morals can be distinguished from one another. According to some, the law is more than just a set of rules; it also
makes use of certain principles. Although it is acknowledged that this does not allow the rules themselves to be
rejected on the grounds of their morality, the skillful application of these principles to legal norms causes the judicial
process to extract a moral element out of the legal order. Even the positivist admits that morality can and often does
work against the creation of a legal rule.

Natural law school

The idea that human morality derives from nature and manifests itself as laws and regulations in a society is the root
of the phrase“natural law,” as it were. The natural law idea contends that any legislation that is blatantly morally
repugnant is not a law at all. Thus, morality and the law are closely related. Augustine, Aquinas, Leon Fuller, and
other legal philosophers supported the natural law hypothesis.

Analytical school

On the other hand, the analytical school holds that morality and the law are two distinct concepts. They are distinctive
from one another. Law and morality should be studied separately. Legal positivism asserts that the legal system does
not adhere to any moral standards. Having said that, this view does not fully discount the impact of morals on the
creation of laws. The philosophy promotes the separation of laws and morals because it holds that all laws, rules, and
regulations were created by humans. Legal positivists John Austin and H. L. A. Hart are examples of those who
support this theory.

Hart-Fuller debate on law and morality

One of the most fascinating discussions between Lon Fuller and H. L. A. Hart on the intriguing interdependency
between law and morality is the Hart-Fuller debate. This basically emphasised the divergent viewpoints between
positivist and natural law philosophy and was published in the Harvard Law Review in 1958. It’s critical to examine
both these ideologists’ ideas and the justifications for them individually in order to comprehend the arguments made
by each.

H. L. A Hart

Hart, a positivist held the view that morality and law may have a close relationship but are most definitely not
interdependent. Hart does, however, agree that the prevailing morals in society have had a significant impact on the
law. He argued that there should be a distinct difference between what the law ought to be and what it should be.

When the law is vague, Hart introduced the penumbra issue, which deals with determining meaning. In opposition,
Fuller argued that when the law is unclear, judges make decisions based on morality, or more specifically, on what
ought to be.

In response, Hart argued that deciding what ought to be understood in a legal sense rather than a moral sense. In
essence, interpretation of the law cannot originate from a source other than the legal profession.

There are both primary and secondary rules in the law as we have discussed in the theory of Hart’s concept of law.
Citizens are subject to specific regulations under primary rules, and the state has the authority to create and enforce
these regulations under secondary rules. This implies that moral principles are not required to be reflected in the
legislation. He draws a distinct line between morality and legality, but he also thinks that the two must eventually
cross paths.

Lon Fuller
Fuller was a naturalist who held the view that morality and the law are strongly intertwined. He believes that moral
standards are the foundation of all legal rules. Simply put, legislation cannot be considered legal if it fails the morality
test, which is based on the ethical principles that individuals hold.

The morality of aspiration and the morality of obligation are two more categories created by Fuller. The former is
concerned with moral standards that a person upholds in their own best interests. The latter, on the other hand, is more
important to the efficient operation of society since it establishes standards that everyone must adhere to.

Hart-Fuller debate analysis

Both of these legal theorists sought justice, but they did so in different ways. Real- world examples can help us better
understand their views. Consider a scenario in which parking a car somewhere is against the law. Although it is clearly
not morally wrong to leave your car parked there, it is nonetheless against the law. This implies that law can exist
outside of any moral duty to meddle with or to be dependent, as established by Hart.

On the other side, let’s look at the Nazi dictatorship, whose laws Hitler passed without regard for morality or ethics.
We can all agree that the Nazi government was unjust and terrible to humanity, and that’s why there wasn’t justice. In
a nutshell, Fuller believes that injustice results when laws did not match moral principles.

It is clear from a close review of their positions that there is no doubt that the two philosophers’ positions can be
reconciled. There can be some overlap between morality and legality; they don’t have to be two illogical concepts.
However, as morality is a matter of personal opinion, the law will ultimately have to take precedence.