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Procedure for drafting a new article in the Indian Constitution

November 12, 2021

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This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of the various procedures taken and considerations made by the legislature while drafting an article.

Introduction

The Constitution is a set of basic principles that govern a country’s politics and reflect the exercise of political power. It establishes the framework and functions of the government’s primary organs, as well as the modes of interaction between the state and its citizens. On January 26, 1950, the Indian Constitution, which is often regarded as the world’s longest constitution came into effect.

The goal of the law is to reduce public suffering to the greatest extent possible, to prevent political and social injustices, and to ensure that everyone is treated fairly. At the national level, the parliament makes these laws, while at the state level the state legislature makes them. Schedule 7 of the Indian Constitution divides power between the central government and state governments. The Union list includes subjects that can only be formulated, changed, and governed by the central government; the state list includes subjects that can only be governed and formulated by the state government; and the concurrent list includes subjects on which both the state and the central government may formulate laws.

Procedure for making laws

Pre drafting stages

At first, the necessity for a new law or a change to existing legislation is identified; this is done by the government ministries, the citizen groups and the pressure groups who can promote public awareness and educate the public about the law’s importance.

Initiation of Legislative proposals

The Cabinet or any minister in charge of the relevant ministry initiates legislative initiatives on behalf of the government. Proposals concerning important government policies are being developed in order to carry out the electoral promises. The formation of legislative policy is the first step in the process of preparing a Bill. Since law is a formal and legal manifestation of a legislative policy, the policy sought to be implemented by it must first be defined and settled from administrative, economic, and political perspectives before the Bill can be produced.

Pre legislative consultation policy

To enable efficient pre-legislative examination of a draft law in consultation with stakeholders, the government has issued a Pre-legislative Consultation Policy. It requires publishing and making the draft available in the public domain. The pre-legislative consultation policy is a method for citizens to interact with the government by providing feedback and opinions on proposed policies and legislation. Prior to 2014, this process was not uniformly recognised.

However, in 2014, the Central government introduced the Pre legislative consultation policy. Under this, it has been mandated that every Ministry must place draft bills in the public domain for comments/feedback for 30 days. The document put out for public consultation should also provide reasons for the need for the law, financial considerations and explanation of legal terms in simple language. The policy, on the other hand, was introduced by the central government in 2014. Under the policy, every Ministry is required to place draft bills in the public domain for 30 days for public comment and feedback. The document put out for public consultation should also provide reasons for the need for the law, financial considerations and explanation of legal terms in simple language.

Examination of the proposal

As soon as a legislative proposal is formulated, the relevant ministry determines its political, societal, economical, and sociological implications. When other government departments or state governments are involved, their suggestions are taken into account and wherever possible, experts’ opinions are taken into consideration, after discussion with the ministry of law or the Attorney General, the legal and constitutional aspects of the matter are examined.

Drafting of the memorandum

After the proposal has been properly studied from all angles and individuals affected by it have been consulted, a memorandum is drafted, which is then submitted to the cabinet for approval after being cleared by the ministry of law.

Clearance from the cabinet

The cabinet limits its discussion to the broad policy issues raised by the proposal before making a decision. If the proposal is noteworthy, the cabinet may request one of its standing or ad hoc committees examine it. The cabinet may also ask for the draft of the actual Bill for a more comprehensive inspection.

Drafting stages

Cabinet approval

The legal and constitutional aspects of the problem are investigated in consultation with the Ministry of Law or the attorney general. After the idea has been thoroughly studied from all perspectives, a memorandum is written and submitted to the cabinet for approval after the ministry of law has given its consent. Before making a decision, the cabinet limited its discussion to the proposal’s major policy problems. If the proposal is substantial, the Cabinet may request that one of its standing committees or an ad hoc committee investigate it further.

Preparation of statement of objects and reason

After a Bill has been passed by various experts connected with the matter, it is forwarded to the administrative ministry for the production of a statement of objects and reasons, which briefly outlines the proposed legislation’s objective. The statement should explain Bill’s contents, including its contents and purposes, and assist in comprehending Bill’s necessity and extent.

The house preference

Money and certain financial Bills are not allowed to be introduced in the Rajya Sabha under 117(1) of the Constitution. Bills may originate in any House of Parliament, subject to these limitations. Planning and management of legislative and other official business in both Houses are one of the functions assigned to the Ministry of Parliamentary Affairs under the Government of India’s allocation of Business Rules, and that Ministry selects the House in which a non-Money Bill will be introduced.

The Bill’s printing

Through an office Memorandum signed by draftsmen, the Ministry of Law transmits a proof copy of the Bill to the Secretariat. The Secretariat receives two proofs of the English and Hindi versions of the Bill validated by the Legislative Council from the Ministry of Law. From that point forward, the Bill is under the hands of the House, and it is the Secretariat’s obligation to ensure that fair copies of the Bill are printed and distributed to members, as well as to perform all other necessary actions.

Parliamentary procedure

The Bill is introduced in Parliament when the Cabinet authorises it. The Parliament is the central legislative (or law-making) body in the Indian political system. Before becoming an Act, every Bill passes through three Readings from both Houses.

First reading

The legislation process begins with the introduction of a Bill in either house of Parliament; however, a Bill must first be granted leave to be introduced, it is necessary to ask for leave to introduce the bill. If the house grants leave, the Bill is introduced. This constitutes the first reading of the Bill. If a motion for leave to introduce a Bill is challenged, the chairman or speaker may allow the individual to make a brief explaining statement. After that, it’s up to the house to vote without any discussion.

Second reading

There are 2 stages in the second reading

The ‘first stage’ entails a general discussion of Bill’s concepts and provisions on any of the motions below: that the Bill be considered; that the Bill be referred to a Rajya Sabha Select Committee; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that it be circulated for the purpose of eliciting public opinion; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that the Bill be referred to a joint committee of the houses with the concurrence of the Lok Sabha; that the Bill be circulated for the purpose of eliciting opinion thereon. At this point, the houses have the option of referring the Bill to a select committee of the house or a joint committee of both houses.
“Second stage” refers to Bill’s clause-by-clause examination as introduced or as reported by the Select/Joint Committee. Amendments given by members to various clauses are moved at this stage.

Third reading

The third reading refers to the debate on the motion that the Bill (or the Bill as amended) be passed or returned (to the Lok Sabha in the event of a Money Bill), during which the arguments for and against the Bill are presented. At this stage, the discussion is limited to arguments in favour of or against the measure, with no deeper discussion of its details than is required. At this point, only formal, verbal, or consequential amendments are permitted.

Post parliamentary procedure

The President’s approval

The President has certain functions in respect of passing a Bill. A bill passed by both the Houses of Parliament requires his assent in order to become an Act. He may give his assent to a bill or can withhold assent when a bill, after getting approved in both the Houses, is placed before the President. But, if Parliament, acting on the President’s refusal to assent to a bill, passes it again with or without amendment, for the second time and presents it to the President for his approval, the President shall not withhold his assent there under Article 111. In other words, it becomes obligatory upon him to give his assent.

In certain cases, prior sanction of the President is required for initiating any legislation. For instance, a bill for the formation of a new State or altering the boundaries of the existing State or States is to be placed before Parliament with prior approval of the President. Money bill is another example where obtaining such approval of the President is a constitutional necessity.

Public participation in the legislative process

Role of the citizen

Citizens can also play a key part in the formulation and change of current acts, due to increased transparency in the policymaking process and equitable access for all participants in participating in the process.

For instance Mazdoor Kisan Shakti Sangathan (MKSS), a grassroots organization based in Rajasthan. While working in Rajasthan, MKSS encountered widespread corruption in the PDS system and it surmised that the primary reason for such a large scale corruption in relief works and supply of essential commodities was the implementation of such government programs which was being done in secrecy and there was a misuse of funds and other corrupt practices. Official records were never shared with citizens as a result of which they were unable to question officials and demand accountability. Thus started the movement by MKSS to demand access to official records and information related to local development works, a citizen group was created which received the backing of many social activists and the media which later came to be known as ‘Right to Information’.

Participation with the standing committees

When a Bill has been introduced it is normally submitted to the relevant standing committee, which requests input from different people and experts. This gives civic society and the general public another opportunity to participate in legislation. All standing committee discussions happen behind closed doors, with no access to the public or the media, the general public can approach the relevant committee and request permission to testify in front of it and the government is not obligated to follow the standing committee’s suggestions.

The Bill for the Maintenance and Welfare of Parents and Senior Citizens was introduced in 2007. The 2007 Maintenance and Welfare of Parents and Senior Adults Bill seeks to make it a legal requirement for children and heirs to provide maintenance to senior citizens. Several parties submitted written submissions and gave oral testimony to the standing committees as they discussed the Bill between May and July 2007. The All India Senior Citizens Confederation, the Senior Citizens Service Forum, and Age Care India, among others, were among these organisations. In August 2007, the Standing Committee submitted its report. In December of 2007, the Bill was eventually passed and signed into law.

Procedure for Constitution Amendment in India

In comparison to the world’s top Constitutions, India’s Constitution allows for a unique amendment process. It can be defined as flexible and rigid in parts. The Indian Constitution allows for three types of amendments.

Simple majority amendments:

Certain articles of the Constitution can be altered with a simple majority (i.e., more than 50%) of the total members present and voting. This category can be used to change, for example, the admission of a new state under article 2, Schedule IV, and article 11, among other things.

Amendment by a special majority:

Some provisions of the Constitution can be modified by a special majority (66%) of not less than two-thirds of the members of the House present and voting.

Amendment by special majority and ratification by State Assemblies:

Article 368 stipulates that if the amendment intends to change “certain specific elements of the Constitution,” it must be approved by a special majority (66 percent) in Parliament, followed by ratification by at least half of the state legislatures. The Bill is then delivered to the President for his signature after this process is completed.

Conclusion

Laws are norms that all members of a community must follow. Laws safeguard our general safety and defend our rights as citizens against abuse by others, organisations, and the government itself. We have laws in place to ensure our general safety. These can be found on a local, state, or national level. In so far as the constituent power to make formal amendments is concerned, it is article 368 of the Constitution of India which empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. The amending procedure provisions are a bit sketchy. As a result, they allow a lot of room for the judiciary to intervene. Despite these flaws, the procedure has shown to be simple and straightforward, and it has been successful in fulfilling society’s changing requirements and situations. The procedure is neither too flexible to allow the ruling parties to adjust it according to their whims nor too strict to adapt to new needs.

References

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Procedure for drafting a new article in the Indian Constitution

Introduction

Procedure for making laws