India is a democracy having quasi-federal structure of Government. Thus the Constitution of India is Supreme and is the result of the will of the people. Thus there is the procedure of separation of power where in there are 3 heads i.e. legislature, executive and judiciary. It is the Constitution that has given the Parliament the right to make laws and the Judiciary to interpret them.
Laws are made separately at different levels, by the Union Government for the whole country and by the State Governments for their respective states as well as by local municipal councils at district level. The Legislative procedure in India for the Union Government requires that proposed bills pass through the two legislative houses of the Indian parliament, i.e. the Lok Sabha and the Rajya Sabha.
Thus the laws so formed can be Union Laws made in Parliament (Lok Sabha and Rajya Sabha) or State Laws made in respective state assemblies (Vidhan Sabha and Vidhan Parishad). A law relating to financial matter (Money Bill) can only originate in the lower house (Lok Sabha or Vidhan Sabha). All other laws can be initiated in either house.
How a Bill becomes an Act in Parliament
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. It has to pass through various stages before it becomes an Act of Parliament. There are three stages through which a bill has to pass in one House of Parliament:
· First reading – introduction stage: Any member or member-in-charge of the bill seeks the leave of the house to introduce a bill. If the bill is an important one, the minister may make a brief speech, stating its main features.
· Second reading – discussion stage: This stage consists of consideration of the bill and its provisions.
· Third reading – voting stage: This stage 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.
As soon as the bill has been framed, it has to be published in the newspapers and the general public is asked to comment in a democratic manner. The bill may then be amended to incorporate the public opinion in a constructive manner and then may be introduced in the Parliament by ministers. Bills may 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.
When a bill has been passed, it is sent to the President for his approval as 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 president himself to the houses. However Article 255 says that prior recommendation of president or 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 president or governor of a state is mandatory. President may be of view that a particular bill passed under the legislative powers of parliament is violating the constitution; he can send back the bill with his recommendation to pass the bill under the constituent powers of parliament following the Article 368 procedure. 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 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. If he 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, he must give his assent to it
Coming into force
Therefore, the last step in the law making procedure is the publication of the act in the Gazette of India; this is also termed as notification. In other words, the act has been notified to public at large when it is published in the Gazette of India. Thus is the official way of informing the public of the new law, and they cannot plead ignorance of the same.
Commencement of the notification:
1. The date of coming into force, if mentioned in the published act in the Gazette of India, would be the date when it shall become enforceable.
2. If the date of coming into force is not mentioned in the published act in the Gazette of India, then the date it receives assent from the president shall be the date when it shall become enforceable.
3. The date of coming into force can also be postponed by the government to any future date. In such a case, the entire enactments or parts thereof shall come into force on a date appointed by the government through a notification in the Gazette of India.
CASE: In Sanjiv Kumar V. M/s Ramwa chit funds (P) Ltd., the High Court stated,
“7. Section 5 of the General Clauses Act, 1987 states that any Central enactment not expressed to come into operation on any particular date, shall come into operation on the date it receives assent of the President. Therefore, a central enactment comes into force or operation on the date it receives presidential assent. This general rule is, however, subject to a specific provision in the enactment to the contrary. The legislature can postpone commencement of an Act to a future date. It can delegate and empower the appropriate government to decide and fix a date on which the entire enactment or parts thereof shall come into force. The central government can also be permitted to fix different dates on which an enactment shall come into force in different parts of the country.”
Amendment of the constitution
The process of addition, variation or repeal of any part of the constitution by the Parliament under its constituent powers, is called amendment of the constitution. The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds members are present and voted. In addition to this, certain amendments which pertain to the federal and judicial aspects of the constitution must be ratified by a majority of state legislatures. Basic structure of the Indian constitution cannot be altered or destroyed through constitutional amendments under the constituent powers of the Parliament without undergoing judicial review by the Supreme Court.
In the case of Kesavananda Bharti v. State of Kerala, it over ruled Golaknath v. State of Punjab but did not reestablish parliamentary supremacy. It stated that fundamental rights may be amended by the parliament, but not all of them. Those fundamental rights which constitute the basic structure of the Constitution cannot be abridged. Golaknath gave primacy to fundamental rights. Keshvananda recognizes that some other provisions in the Constitution may be equally important; if they form the basic structure they are unamendable. Under Art.368 the parliament cannot rewrite the entire Constitution and bring in a new one.
There is broad separation of powers under the Constitution, and hence one organ of the State should not interfere in the duties of another organ. The judiciary should not therefore seek to perform legislative or executive functions. But the Supreme Court can issue guidelines if no rule or law has been stated or exists. For example:
1. The Supreme Court in Vishaka vs. State of Rajasthan (1997) 6 SCC 241, issued Guidelines to tackle sexual harassment in workplace as no law existed for the same.
2. Supreme Court has put a cap of 50% on the percentage of reservation allowed in the country in any field be it education or employment.
The Supreme Court’s position on constitutional amendments laid out in its judgments is that Parliament can amend the Constitution but cannot destroy its “basic structure”.
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. Thus the three heads, i.e. the legislature, executive and judiciary should work together and not interfere in each other’s work so allotted by the constitution so as to maintain peace and harmony.