Lawmaking procedure in India

The Union List consists of 97 items on which the Parliament has exclusive power to legislate.

The State List consists of 61 items (previously 66 items) where a state legislative assembly can make laws applicable in that state. But in certain circumstances, the Parliament can also legislate temporarily on subjects mentioned in the State List, when the Rajya Sabha has passed a resolution with two-thirds majority that it is expedient to legislate in the national interest per Articles 249 to 252 of the Constitution.

The Concurrent List consists of 52 (earlier 47) items where both Parliament and a state legislative assembly can make laws in their domains subject to Articles 254 of the Constitution .

The legislative process begins with the introduction of a bill in either house of Parliament, i.e. the Lok Sabha or the Rajya Sabha. A bill can be introduced either by a minister or by a private member. In the former case it is known as a government bill and in the latter case it is known as a private member's bill. It is necessary for a member-in-charge of the bill to ask for the leave of the house to introduce the bill. If leave is granted by the house, the bill is introduced. This stage is known as the first reading of the bill. If the motion for leave to introduce a bill is opposed, the speaker may, in his discretion, allow a brief explanatory statement to be made by the member who opposes the motion and the member-in-charge who moved the motion. Where a motion for leave to introduce a bill is opposed on the ground that the bill initiates legislation outside the legislative competence of the house, the speaker may permit a full discussion thereon. Thereafter, the question is put to the vote of the house. However, the motion for leave to introduce a finance bill or an appropriation bill is forthwith put to the vote of the house.[10] Money/appropriation bills and financial bills can be introduced only in the Lok Sabha per Articles 109, 110 and 117. The Speaker of Lok Sabha decides whether a bill is a money bill or not. The vice-president of India, who is ex-officio Chairman of the Rajya Sabha, decides whether a bill is a money bill or not when the bill is introduced in the Rajya Sabha.[11]

After a bill has been introduced, it is published in The Gazette of India. Even before introduction, a bill might, be published in the Gazette on the permission of the speaker. In such cases, leave to introduce the bill the house is not asked for and the bill is straight away introduced.[10]

After a bill has been introduced, the presiding officer of the concerned house (speaker of the Lok Sabha or the chairman of the Rajya Sabha or anyone acting on their behalf) can refer the bill to the concerned standing committee for examination and to prepare a report thereon. If a bill is referred to a standing committee, the committee shall consider the general principles and clauses of the bill referred to them and make a report thereon. The committee can also seek expert opinion or the public opinion of those interested in the measure. After the bill has thus been considered, the committee submits its report to the house. The report of the committee, being of persuasive value, shall be treated as considered advice.[10]

The second reading consists of consideration of the bill which occurs in two stages.

The first stage consists of general discussion on the bill as a whole when the principle underlying the bill is discussed. At this stage it is open to the house to refer the bill to a select committee of the house or a joint committee of the two houses or to circulate it for the purpose of eliciting opinion thereon or to straight away take it into consideration.[10]

If a bill is referred to a select or joint committee, the committee considers the bill clause-by-clause just as the house does. Amendments can be moved to the various clauses by members of the committee. The committee can also take evidence of associations, public bodies or experts who are interested in the measure. After the bill has thus been considered, the committee submits its report to the house which considers the bill again as reported by the committee. If a bill is circulated for the purpose of eliciting public opinion thereon, such opinions are obtained through the governments of the states and union territories. Opinions so received are laid on the table of the house and the next motion in regard to the bill must be for its reference to a select/joint committee. It is not ordinarily permissible at this stage to move the motion for consideration of the bill.[10]

The second stage of the second reading consists of clause-by-clause consideration of the bill as introduced or as reported by select or joint committee. Discussion takes place on each clause of the bill and amendments to clauses can be moved at this stage. Amendments to a clause have been moved but not withdrawn are put to the vote of the house before the relevant clause is disposed of by the house. The amendments become part of the bill if they are accepted by a majority of members present and voting. After the clauses, the schedules if any, clause 1, the enacting formula and the long title of the bill have been adopted by the house, the second reading is deemed to be over.[10]

Thereafter, the member-in-charge can move that the bill be passed. This stage is known as the third reading of the bill. At this stage the debate is confined to arguments either in support or rejection of the bill without referring to the details thereof further than that are absolutely necessary. Only formal, verbal or consequential amendments are allowed to be moved at this stage. In passing an ordinary bill, a simple majority of members present and voting is necessary. But in the case of a bill to amend the Constitution, a majority of the total membership of the house and a majority of not less than two-thirds of the members present and voting is required in each house of Parliament.[10] If the number of votes in favour and against the bill are tied, then the presiding officer of the concerned house can cast his/her vote, referred to as a casting vote right.[10]

If at any time during a meeting of a house there is no quorum, which is a minimum of one-tenth of the total strength of a house, it is the duty of the chairman or speaker, or person acting as such, either to adjourn the house or to suspend the meeting until the quorum is met.[12] The bills taken up under legislative power of Parliament are treated as passed provided majority of members present at that time approved the bill either by voting or voice voteIt is also right of a member to demand voting instead of voice vote.[13] In case of passing a constitutional amendment bill, two-thirds of the total members present and voted in favour of the bill with more than half of the total membership of a house present and voting in all, is required according to Article 368 of the Constitution.

After the bill is passed by one house of Parliament, it is sent to the other house for concurrence with a message to that effect, and there also it goes through the stages described above, except the introduction stage.[10] If a bill passed by one house is amended by the other house, it is sent back to the originating house for approval. If the originating house does not agree with the amendments, it will be that the two houses have disagreed. The other house may keep a money bill for 14 days and an ordinary bill for six months without passing (or rejecting) it. If it fails to return the bill within the fixed time, the bill is deemed to be passed by both the houses and is sent for the approval of the President.

At the state level, it is not mandatory that a bill shall be passed by the legislative council (if existing) per Articles 196 to 199. There is no provision of conducting joint session of both houses to pass a bill.

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, though is not bound to, 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. To date, 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.[14]

When a bill has been passed by both houses following the described process, it is sent to the President for his approval per Article 111. The President can assent or withhold his assent to a bill or he can return a bill, other than a money bill which is recommended by the President himself to the houses. However Article 255 says that prior recommendation of the President or the Governor of a state wherever stipulated is not compulsory for an act of Parliament or of the legislature of a state but the final consent of the President or Governor is mandatory. If the President is of the view that a particular bill passed under the legislative powers of Parliament violates the Constitution, he can return the bill with his recommendations to pass the bill under the constituent powers of Parliament following the Article 368 procedure. The President shall not withhold constitutional amendment bill duly passed by Parliament per Article 368. If the President gives his assent, the bill is published in The Gazette of India[15] and becomes an act from the date of his assent. If he withholds his assent, the bill is dropped, which is known as absolute veto. The President can exercise absolute veto on aid and advice of the Council of Ministers per Article 111 and Article 74.[16] The President may also effectively withhold his assent as per his own discretion, which is known as pocket veto. The pocket veto has only been exercised once by President Zail Singh in 1986, over the Postal Act which allowed the government to open postal letters without warrant by amending the Indian Post Office Act, 1898. If the President returns it for reconsideration, the Parliament must discuss once again, but if it is passed again and returned to the President, he must give his assent to it. If Parliament is not happy with the President for not assenting a bill passed by it under its legislative powers, the bill can be modified as a constitutional amendment bill and passed under its constituent powers for compelling the president to give assent. In case a constitutional amendment act is violating the basic structure of the Constitution, the constitutional bench of the Supreme Court would quash the act. When Parliament is of the view that the actions of the President are violating the Constitution, impeachment proceedings against the president could be taken up to remove him under Article 61 where at least two-thirds of the total membership of each house of Parliament should vote in favour of the impeachment when charges against the president are found valid in an investigation.

In case of a bill passed by the legislative assembly of a state, the consent of that state's governor has to be obtained.[17] Some times the governor may refer the bill to the president anticipating clash between other central laws or constitution and decision of the president is final per Articles 200 and 201.

All decisions of the Union Cabinet are to be assented by the President for issuing gazette order. In case the Cabinet decisions are not in the purview of the established law, the President shall not give assent to the Cabinet decisions. He may indicate that the Union Cabinet has to pass the necessary legislation by the Parliament to clear the Cabinet decision. A minister is not supposed to take any decision without being considered by the Union Council of Ministers per Article 78(c).

The purpose of framing the Indian Constitution is to serve with honesty, efficiency and impartiality for the betterment of its citizens by the people who are heading or representing the independent institutions created by the Constitution such as judiciary, legislature, executive, etc. When one or more institutions are failing in their duty, the remaining shall normally take the lead in correcting the situation by using checks and balances as per the provisions available in the Constitution.

Generally most acts will come into force, or become legally enforceable in a manner as prescribed in the act itself. Either it would come into effect from the date of assent by the President (mostly in case of ordinances which are later approved by the Parliament), or a specific date is mentioned in the act itself (mostly in the case of finance bills) or on a date as per the wish of the central or the state government as the case may be. In case the commencement of the act is as made as per the wish of the government, a separate Gazette notification is made, which is mostly accompanied by the rules or subordinate legislation in another Gazette notification.