PRINCIPLES OF LEGISLATION AND LEGISLATIVE DRAFTING

6M
1. Objectives of Civil Legislation.(02/21)
A. There are four main principles and functions of the civil and criminal legislation
are to establish standards, to maintain order, to resolve disputes and to protect
liberties and rights.
Establishing standards: The law reflects current standards of acceptable behavior in
the society. The Criminal law is the upholding standards and punishing those who
break the laws. The Civil law is concerned with upholding standards as between
individual citizens and entities.
Maintaining Order: A high degree of order is necessary in a civil society and is
therefore reflected in the law.
Resolving disputes: The law provides formal means for resolving disputes by way of
litigation through the civil court system. Eg. Adjudication, arbitration, mediation &
negotiations, alternate dispute resolution, etc..
Protecting liberties and rights: The constitution of India by way of implementation
of Fundamental rights, protecting the various rights and liberties. The Civil law aims
to protect and uphold these various liberties and rights.

2. Rules framed under an Act. (02/21)

A.A rule is a definite regulation prescribed as a law of conduct. It contains all or
some parts as that of the Act. The Rules may contain definition clauses. The Rules
are made by the authority i.e. parliament or state legislation under the authority of
an Act of Parliament or state legislation. In an Act, Sections, narrate the rights and
liabilities of the persons of the state. Any act regulates the functions are performed
by private persons or public corporations, Govt. Departments and state. To regulate
the conduct of them, the Rules are enacted. Any Act cannot function itself. There
must be authority and powers to implement the provisions of the Act. Then the
rules prescribe the functions and powers to regulate the provisions of the Acts. The
Superior courts are also frame certain rules for the regulations of practice and
procedure in their courts and in subordinate courts. Eg. Supreme Court framed the
Supreme Court Rules of practice. Sec. 3(5) of the General Clauses Act, 1897
defines Rule as “Rule shall means rule made in exercise of a power conferred by
any enactment, and shall include a regulation made as a rule under any
enactment”.

3. Intention of Legislation. (02/21)

A.The purpose behind framing any statute is mainly for the public benefit. The
legislature is presumed to have a certain meaning of the words of any particular
statute. Thus, in this case, the court will look into the legal meaning or true
meaning of all the statutory provisions.
Eg. speeches and floor debate made prior to the vote on the bill, legislative
subcommittee minutes, factual findings, and reports. other relevant statutes that
can be used to understand the definitions in the statute in question. other relevant
statutes which indicate the limits of the statute in question.

4. Impact of Public opinion on Legislation (02/21).

A.The Concept of Pubilc opinion came to limelight in the wake of democracy. The
Governmental policies gradually became the function of opinion rather than of
force, and the means for the expressions of opinion like constitutionality guaranteed
liberties, elections, [political parties, etc.. were at hand, the rile of public opinion in
the Government came to be generally recognized. The theory of public opinion is
thus a derivative from democracy as a form of government. The broad assumption
on which the theory is built are:
a. that the public is interested in Government;
b that the public knows what it wants;
c. that the public has the ability to express what it wants;
d. that the public’s will would be enacted into law.

5. Concept of Welfare State (02/21)

A.The welfare state is a form of government in which the state protects and
promotes the economic and social well-being of its citizens, based upon the
principles of equal opportunity, equitable distribution of wealth, and public
responsibility for citizens unable to avail themselves of the minimal provisions for a
good life.
A welfare state is a state that is committed to providing basic economic security for
its citizens by protecting them from market risks associated with old age,
unemployment, accidents, and sickness.

6. Codification of law (02/21).

A.The collection and systematic arrangement, usually by subject, of the laws of a st

ate or country, or the statutory provisions, rules, and regulations that govern a spe
cific area or subject of law or practice.
The term codification denotes the creation of codes, which are compilations of writt
en statutes, rules, and regulations that inform the public of acceptable and unaccep
table behavior.

7. White papers on Legislation (02/21).

A.A White Paper has been drafted to solicit public comments on what shape a data
protection law must take. The White Paper outlines the issues that a majority of the
members of the Committee feel require incorporation in a law, relevant experiences
from other countries and concerns regarding their incorporation, certain provisional
views based on an evaluation of the issues vis-à-vis the objectives of the exercise,
and specific questions for the public. On the basis of the responses received, the
Committee will conduct public consultations with citizens and stakeholders shortly
to hear all voices that wish and need to be heard on this subject.
8. Ordinances (02/21).
A.Ordinances are laws that are promulgated by the President of India on the
recommendation of the Union Cabinet, which will have the same effect as an Act of
Parliament. They can only be issued when Parliament is not in session. They enable
the Indian government to take immediate legislative action. Ordinances cease to
operate either if Parliament does not approve of them within six weeks of
reassembly, or if disapproving resolutions are passed by both Houses. It is also
compulsory for a session of Parliament to be held within six months

15M
1. Explain Legislation as a source of Law. Discuss its status in modern times
(02/21).
A. The main reason behind the legislation is regarded as an important source of law
i.e., the legal rule enshrined by the legislature was recognized by the State as law
and legislation have the authority and force over the State. That’s the reason, Dias
said that deliberate law-making by an authoritative power, i.e., the State is called
the Legislation provided that authority is duly recognized as the Supreme power by
the Courts.
Legislation can serve a variety of purposes, including directing, approving,
endorsing, granting, authorizing, allowing, proclaiming, confining, and annulling. As
a result, the welfare of citizens must be considered when establishing any
legislation or the rule of law, and it must be implemented in the citizens’ best
interests.
The following are a few types of legislation:
1. Supreme Legislation
The supreme legislation is enacted by the state’s sovereign power. As a result, no
other authority within the state can control or check it in any way. It is regarded
not just as superior, but also as having legal omnipotence. Dicey’s work, “The Law
of the Constitution,” is a famous explication of this notion. Its power is unrestricted
by the law. In India, the legislature is also supreme. Though its power is limited by
the constitution, it is not subject to any other legislative authority inside the state.
No other legislative authority has the power to repeal, invalidate, or control it.
2. Subordinate Legislation
Subordinate legislation is legislation enacted by a body other than the state’s
Supreme Authority. It is enacted within the authority of the Supreme Authority. The
Supreme Expert is responsible for the authenticity, legitimacy, and continuation of
such law. It can be revoked and canceled at any time by the sovereign authority,
hence it must provide a framework for sovereign legislation. The control of
subordinate legislation is subject to parliamentary oversight. There are five distinct
types of subordinate legislation.
The following types are:
i. Colonial Legislation
Countries that are not autonomous and are under the control of another state do
not have a Supreme Court. These countries are classified as colonies, dominions,
protected or trust areas, and so on. Their laws are subject to the Supreme
Legislation of the state over which they have control. As a result, it is secondary
legislation. The United Kingdom has a large number of colonies and dominions. The
laws they pass for self-government are subject to change, repeal, or supersession
by British Parliament legislation.We may not have this type of subordinate
legislation soon, as the colonies are rapidly gaining independence and practically all
British dominions have unfettered legislative power.
ii. Executive Legislation
Executive legislation is created when legislative powers are given to an executive
by an authorized official. Even though the official’s primary responsibility is to carry
out the laws and maintain the organization, he or she is constantly reliant on
subordinate enactment powers. Today’s laws contain assignment statements that
delegate law-making authority from the office to the executive to improve statutory
arrangements.
iii. Judicial Legislation
The judicial system has been given the authority to establish and apply its laws to
protect the country’s judicial system’s transparency. This will also ensure that no
other government organ is involved in the administration of the state’s judicial
system.
iv. Municipal Legislation
Municipalities are given the authority to enact bylaws governing their immediate
surroundings. A neighborhood body’s legislation governs its territory. Municipal
corporations, Municipal Boards, Zila Parishads, and other Indian municipal bodies
are examples. There is a push to give Panchayats more power. Along these lines,
there is a chance that this type of subordinate enactment will be expanded in our
country. The 73rd Amendment later included the proposals in the Constitution. The
Municipal Legislation was made for the purpose such as water tax, land urban cess,
property tax, town planning, public health, and sanitation, etc.
v. Autonomous Legislation
The law created by the last is known as the autonomous law, and the body is
known as a self-ruling body when the Supreme authority grants powers to a group
of individuals to administrate on problems that are important to them as a group. A
railway is a separate entity from the rest of the transportation system. It
establishes bye-laws to govern its operations, among other things. A college is a
self-governing organization as well. Some Indian universities have even been given
autonomy.
3. Delegated Legislation:
Delegated legislation is legislation enacted by a body or person other than the
Sovereign in Parliament, based on the sovereign’s powers provided under the
statute.
The term “delegated legislation” has a basic definition: “When the legislature
entrusts the function of legislation to organs other than the legislature, the law
created by such organs is referred to as delegated legislation.” Where Acts are
enacted by Parliament, a Primary Act may be responsible for the formation of
Subsidiary Legislation and will specify who is authorized to make laws under that
Act. Delegated legislation can only occur in the context of empowering or parent
legislation.
The numerous regulatory complexities required to ensure that the Act’s
arrangements work properly are contained in delegated legislation. Government
departments, local governments, and courts may all be involved.
The most commonly recognized types of Delegated Legislation are Guidelines and
Statutory Rules. They are decisions made by the Executive or a Minister that have a
broad public impact. A Local Government Authority makes By-laws and, on rare
occasions, Ordinances that affect the entire community. If there is a problem in a
delegated law, the Principle and Parent Act frequently depicts the approach to be
used in Court.
Sub- delegation– In the Indian legal system, there is also a case of sub-
delegation. The authority to enact subordinate legislation is drawn from an enabling
act that already exists. It is critical that the delegate to whom such authority is
delegated acts within the bounds of the enabling statute. Its goal is to replace
rather than supplement the law. Its fundamental rationale is that legislators do not
always anticipate the issues that may arise when enacting legislation.

2. Define Law and different form of Legislative instruments.(02/21)

A.Law is a system of rules created and enforced through social or governmental
institutions to regulate behavior, with its precise definition a matter of longstanding
debate. It has been variously described as a science and the art of justice.
Different forms of Legislature: refer the above answer.
3. Discuss the factors that influence framing of a legislation in modern times
(02/21).
A. In India, there are many factors that influence the Legislation. They are:
a. The influence of British rule;
b. The influence of Western culture of law;
c. the ideology of leaders, who fought against the British rule;
d. The Constitution of India and the debates while framing the Constitution;
e. The Supreme Court of India decisions, guidelines, instructions to the Parliament;
f. Our million of years of ancient Hindu culture and Dharmas;
g. The Islamic Preachings and teachings;
h. Sikhs;
i. Jainism;
j. Budhism;
k. Our diversity of religions, culture and living style; and
l. recently little influence of the Corporate culture, etc..

4. Discuss the role of Law in a welfare state with suitable illustrations (02/21).
A.The Indian Constitution contains the Directive Principles of State Policy from
Articles 36 to 51, which lay down the framework for welfare, socialist state. These
Directive Principles are not enforceable by law, rather they are the long-term but
fundamental goals of a welfare state which help in defining the path of development
the country is to follow, and it is the duty of the State to apply them while making
laws.
Article 38 of the Indian Constitution reads: “The state shall strive to promote the
welfare the people by securing and protecting as effectively as it may, a social
order in which justice-social economic and political-shall pervade all institutions of
national life.”
Article 39A states, “The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide
free legal aid, by suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.”
Article 46 states that “The State shall promote, with special care, the education and
economic interests of the weaker sections of the people”.
Hence, we can say that according to the constitution, India is a welfare state.
India is committed to the welfare and development of the people. The Indian
Government launched a lot of schemes for the welfare of the people. In fact, each
union budget sets aside an impressive amount of funds for various social welfare
schemes. Some of the welfare policies are the following:
Atal Pension Yojana, Mahatma Gandhi National Rural Employment Guarantee Act
(MNREGA), Pradhan Mantri Ujjwala Yojana, Midday Meal Scheme, DeenDayal
Upadhyaya Grameen Kausalya Yojana, Pradhan Mantri GraminAwaas Yojana, Rajiv
Gandhi Grameen Vidyutikaran Yojana, Pradhan Mantri Kaushal Vikas Yojna,
Pradhan Mantri Gram Sadak Yojana, Sampoorna Grameen Rozgar Yojana,
Ayushman Bharat Yojana,Deendayal Disabled Rehabilitation Scheme, Kasturba
Gandhi Balika Vidyalaya, Antyodaya Anna Yojana, Pradhan Mantri Matritva Vandana
Yojana, Standup India. Apart form the above, there are several welfare scheme
were independently undertaken by the state governments.

5. Analyse the characteristics of a good Legislation. (02/21).

A.Consider whether legislation is drafted in an unambiguous and sufficiently clear
and precise way. The legislation may interfere with the rights and liberties of an
individual under section 4(3)(k) of the Legislative Standards Act 1992 if the
legislation is not drafted in plain English. Legal guidance It is an essential feature of
the rule of law that legislation be clear and be able to be understood by those who
are bound by it. Legislation to be drafted in plain English Legislation should be
simple, precise and organised in a way to enhance comprehension. The former
Scrutiny of Legislation Committee (the Scrutiny Committee) summarised its
expectations with respect to clear meaning of legislation as follows:
• legislation should be user-friendly and accessible, so ordinary citizens can gain an
understanding of the laws relating to a particular matter without having to refer to
multiple Acts of Parliament;
• legislation should contain provisions that are precisely drafted;
• legislation should contain coherent provisions that address foreseeable matters
legislation should be drafted in a style that is as simple as possible and be
consistent with the nature of the subject matter Parliamentary committees consider
and comment on any legislation they consider is ambiguous and not clear. At its
core, the parliamentary committees consider that for legislation to be drafted
unambiguously and in a clear and precise way, it should be drafted in plain English.
The parliamentary committees have considered that the clear meaning fundamental
legislative principle is raised in a variety of contexts, including, for example:
• when the purpose and intended operation of a provision is not clear ;
• terms that are not clearly defined, or not defined in the legislation in which they
are used or are defined in a way that conflicts with an existing, established
definition of the term;
• legislation that does not clearly express the nature of the power given to the
recipient and does not provide guidance as to how the power should be exercised;
• the imposition of civil and criminal liability;
• the extraterritorial application of legislation;
• extrinsic material that does not reflect the wording of legislation
6. Describe the process of legislation in India (02/21).
A.A bill is the draft of a legislative proposal. 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. The procedure is similar for the legislative
assemblies of states.
First reading
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. 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.
Publication in the official gazette
After a bill has been introduced, it is published in The Gazette of India. Even before
introduction, a bill with the permission of the speaker, be published in the Gazette.
In such cases, leave to introduce the bill the house is not asked for and the bill is
straight away introduced.
Reference of bill to the standing committee
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.
Second reading
The second reading consists of consideration of the bill which occurs in two stages.
First stage
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.
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.
Second stage
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.
Third and the last reading
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. 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.
Passing a bill
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. 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 vote. It is also right of a member to
demand voting instead of voice vote. 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.
Bill in the other house
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. 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.
Joint session of both houses
Main article: Joint session

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.
President's approval
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 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. 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. 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.
Coming into force
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.

7. Explain the different components of a statute in modern times (02/21).

A.Components of statute law may include:

• principal legislation, such as Acts.

• subordinate legislation, such as:
• approvals.
• determinations.
• mandatory and non-mandatory administrative guidelines.
• orders.
• regulations.

8. What is the effect of repeal of a legislation? Discuss (02/21)

A. Repeal means to revoke, abrogate or cancel particularly a statute. Any statute
may repeal any Act in whole or in part, either expressly or impliedly by enacting
matter contrary to and inconsistent with the prior legislation. Thus a statute
frequently states that certain prior statutory provisions are thereby repealed. The
courts will treat matter as repealed by implication only if the earlier and later
statutory provisions are clearly inconsistent. When a repealing provision is itself
repealed, this does not revive any provision previously repealed by it, unless intent
to revive is apparent, but it may allow common law principles again to apply.
Under General Clauses Act, 1897, Section 6 "Repeal" connotes abrogation or
obliteration of one statute by another, from the statute book as completely "as if it
had never been passed." When an Act is repealed "it must be considered (except as
to transactions past and closed) as if it had never existed." Just as the Legislature
has the power to enact laws, similarly it has the power to repeal laws. The efficacy
of the Legislature depends upon the possession of the power to repeal the existing
law, for without this attribute the power to enact would be a nullity, and the body of
the law a series of contradictory enactments. Consequently the legislative power to
repeal prior laws is not inhibited by any constitutional prohibitions, but exists as a
necessary part and increment of the legislative power and function. No statute can
make itself secure against repeal. There is nothing to prevent any Parliament from
enacting that a particular statute shall never in any circumstances be altered or
abrogated. It is within the power of any Parliament to repeal any of the Acts passed
by its predecessors and that it is not within the power of any Parliament to prevent
the repeal of any of its own Acts, or to bind its successors. Repealing and amending
Acts have no legislative effect, but are designed for editorial revision, being
intended only to excise dead matter from the statute book and to reduce its
volume.Mostly, they expurgate amending Acts, because having imparted the
amendments to the main Acts, those Acts have served their purpose and have no
further reasons for their existence. At times, inconsistencies are also removed by
repealing and amending Acts.
The only object of such Acts, which in England are called Statute Law Revision Acts,
is legislative spring-cleaning and they are not intended to make any change in the
law. A statute is either perpetual or temporary. It is perpetual when no time is fixed
for its duration, and such a statute remains in force until its repeal which may be
express or implied. A perpetual statute is not perpetual in the sense that it cannot
be repealed; it is perpetual in the sense that it is not abrogated by efflux of time or
by non-user. A statute is temporary when its duration is only for a specified time,
and such a statute expires on the expiry of the specified time unless it is repealed
earlier. Simply because the purpose of a statute, as mentioned in its preamble, is
temporary, the statute cannot be regarded as temporary when no fixed period is
specified for its duration. The Finance Acts which are annual Acts are not temporary
Acts and they often contain provisions of a general character which are of a
permanent operation. A cessation of transitional legislative power has also no effect
on the continuance of a perpetual Act enacted during the continuance of that
power. The duration of a temporary statute may be extended by a fresh statute or
by exercise of a power conferred under the original statute. When the life of a
temporary Act is merely extended, it cannot be said that a new law has been
enacted; but if the extension is accompanied by any substantial amendment, it
would not be a case of mere extension. It appears that after a temporary statute
expires, it cannot be made effective by merely amending the same. The only apt
manner of reviving the expired statute is by re-enacting a statute in similar terms
or by enacting a statute expressly saying that the expired Act is herewith revived.
9. Different forms of Bills

A. Bills are divided into the following:

B. The Ordinary Bill: As per Articles 107 and 108 of the COI, Ordinary Bill is
concerned with matters other than financial subjects. It can be introduced in either
house of the parliament. It can be introduced by a Minister or a private member.
Recommendation of the president is not required before introduction. Ordinary Bill
can be amended/rejected by Rajya Sabha and it can be detained by the Rajya
Sabha for a period of six months. After being passed by both the houses it is
presented to the President for his approval under Article 111 of COI. There is a
provision for joint sitting in case of Ordinary Bills.

C. The Money Bill: Money Bills are those that deal with financial matters like
taxation, public expenditure etc. These Bills contain provisions that deal with all or
any of the matters specified under Article 110 of the COI. Recommendation of the
President is a must. The Bill can be introduced by a Minister only and it can be
introduced in Lok Sabha only. This Bill cannot be amended or rejected by Rajya
Sabha. It can be detained by Rajya Sabha for a maximum period of 14 days. It is
sent to President only after being passed by Lok Sabha. There is no provision for a
Joint sitting.

D. The Finance Bill: As per Article 117 of the COI, the Finance Bills are those bills
which are concerned with financial matters but are different from Money Bills. They
are divided into Categories A and B. Category A deals with matters specified in sub-
clauses (a) to (f) of clause 1 of Article 110 of the COI and Category B Bills involve
the expenditure from the Consolidated Fund of India.

E. The Constitutional Amendment Bill: Article 368 of the COI contains the provisions
for amendment of the COI. These types of Bills are rarely used. As on July’2020
there have been 104 amendments to the COI since it has been enacted in 1950.

F. The Ordinance Replacing Bills: This type of Bill is introduced to replace an

ordinance with or without modification promulgated by the President under Article
123 of the COI.

Differences between Ordinary Bill and Money Bill:

Difference Ordinary Bill Money Bill

Introduction Either in Lok Sabha or Only in Lok Sabha
Rajya Sabha
Introduced by Minister or a private Only a Minister
member
Presidents Not required Required
Recommendation before
introduction
Rajya Sabha’s role Can be amended/rejected Cannot be
by Rajya Sabha amended/rejected by
Rajya sabha. It has to
return the bill
with/without
recommendation
Can be detained by Rajya Can be detained by Rajya
Sabha for a maximum Sabha for a maximum
period of 6 months period of 14 days only
President’s Assent Sent for his assent only Sent for his assent after
after being approved by Lok Sabhas approval.
both the houses Rajya Sabha approval is
not required
President can approve, Can be approved or
reject or return it for rejected but cannot be
reconsideration returned for
reconsideration by the
President
Joint Sitting of Houses In case of a deadlock No chance of
there is a provision for a disagreement. Hence no
joint sitting of both the provision for a joint
houses sitting.

10. What are the important steps in making a Law in India

A. There are 5 stages through an ordinary bill has to pass through to finally become
an act. They are as follows:

First Reading A Minister or member introduces the bill in either house of the
Parliament. He asks for leave before introducing the bill. He reads
the title and objective of the bill. After the introduction, the bill is
published in the Gazette of India.

Note:
No discussion on the bill takes place at this stage.
If the Bill is published in the Gazette before its introduction, then
the minister/member need not ask for leave of the house before
introduction
Second Stage of general discussion-Four actions can be taken by the house
Reading on the bill:

1. It may take the bill into consideration immediately or on some

other fixed date
 2. It may refer the bill to a select Committee of the house

3. It may refer the bill to a Joint Committee of the two houses

4. It may circulate the bill to elicit public opinion

Note:
Select Committee-Has members of the house where the bill is
introduced

Joint Committee: Has members from both the houses

Committee stage

Select committee examines the bill thoroughly and in details clause

by clause

It can also amend its provisions, but without altering the principles
underlying it

After completing the scrutiny and discussion, the committee reports

the bill back to the house

Consideration stage:

The house, after receiving the bill from the select committee
considers the provisions of the bill clause by clause

Each clause is discussed and voted upon separately

The members also can move amendments and if accepted, they

become part of the bill
Third reading One of the two actions take place:

Acceptance of the bill-if the majority of members present and

voting accept the bill, the bill is regarded as passed by the house

Rejection of the Bill

Note:

No amendments to the bill are allowed

A bill is deemed to have been passed by the Parliament only when

the houses have agreed to it, either with or without amendments
Bill in the The first three stages are repeated here i.e,
Second House
 1. First reading
2. Second reading

3. Third reading

The second house can take one of the four actions:

1. It may pass the bill as sent by the first house (i.e without
amendments)

2. It may pass the bill with amendments and return it to the first
house for reconsideration

3. It may reject the bill altogether

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

Note:

1. The bill is deemed to have been passed, if both the houses

accept the bill and the amendments

2. If the second house takes no action for 6 months, a deadlock

results which is acted upon by a Joint Sitting(summoned by the
[resident) of both the houses

Assent of the May give assent to the bill. The bill thus becomes an Act
President

11. CLASSIFICATION OF STATUTES:

A. Statutes can be classified with reference to its duration, method, object and
extent of application. The different statutes are as follows:

B. Classification of statute with reference to duration:

(i) Temporary statute: A temporary statute is one where its period of operation or
validity has been fixed by the statute itself. It expires on the expiry of the specified
time unless it is repealed earlier.

(ii) A permanent statute is one where period of validity is not fixed in the statute. It
will continue to be in force until is repealed.

C. Classification of statute with reference to nature of operation:

(i) Prospective statute: A statute which regulates the future is prospective statute

(ii) Retrospective statute: Every statute which takes away or impairs vested rights
acquired under the existing laws in respect of transactions already passed is
deemed retrospective legislation

(iii) Directory statute: It merely directs or permits anything to be done without

compelling its performance. It does not impose any penalty for any non-observance
of the provisions.

(iv) Mandatory statute: Mandatory statute is one which compels performance of

certain things or the form or manner in which certain things are to be done.

D. Classification with respect to object:

(i) The Codifying Statute: A codifying statute is one which codifies the law. The
purpose of a codifying statute is to present an orderly and authoritative statement
of the leading rule of law on a given subject.

(ii) The Consolidating Statute: The main purpose of a consolidating statute is to

present the whole body of a statutory law on one subject in a complete form
repealing all the previous statutes on the said subject.

(iii) Declaratory statute: Declaratory statute states the existing law on a particular
subject enacted by a legislature

(iv) The remedial statute: The remedial statute is one whereby a new favour or a
new remedy is conferred.

(v) The Enabling Statute: The enabling statute is one which enlarges the common
law where it is too strict or narrow.

(vi) Disabling Statute: Disabling statute which is also called as Restraining statute
restricts or cuts down a right conferred by the common law

(vii) The Penal Statutes: Penal Statutes are those which inflict a penalty for
violation of some of their provisions

(viii) The Taxing Statute: A Taxing statute is one which imposes taxes on income or
certain other kind of transactions

(ix) The Explanatory Statutes: This type of statute explains the law and rectifies
any omission left earlier in the enactment of the statutes
(x) The repealing statute: A repealing statute is one which repeals an earlier statute

12. PARTS OF STATUTE

Parts of a Statute: a statute contains many parts. The important parts are as
under:

(i) Title/Short Title: Title means an inscription or heading. Every Act contains a title
which often ends with the year. In bracket it contains sl. No. also which indicates
the number of Acts enacted in the said year. Title is also called short title. An act
may be referred to by its title or short title. Some of the Acts like IPC, CPC, CrPc
become famous with their short titles.

(ii) Long Title: Generally Long title precedes the preamble. Though it looks similar
to preamble there is a difference. Long title explains the scope and purpose of the
statute whereas the preamble explains the object of the statute.

(iii) Preamble: Preamble means introduction. The primary object, purpose and
intent of Legislation can be gathered from the Preamble. The Preamble to the
Constitution represents the aims and objectives of the Constitution. It is the key to
open the mind of the makers of the constitution. Preamble is one of the basic
features of the Constitution.

In the Berubari case the Supreme Court held that Preamble is not a part of the
Constitution. Article 368 empowers the Parliament to amend the Constitution only
and not the Preamble. This opinion was reversed in the Kesavananda Bharathi case
and the Supreme Court opined that Preamble is a part of the Constitution. The
Parliament vide its 42nd amendment in 1976 inserted the words Socialist, Secular;
Unity and Integrity in the Constitution.

(iii) Commencement, Extent and Application: Every Statute contains t a section

which explains when the statute would start functioning and to which parts of the
country the statute is applicable.

(iv) Interpretation clause (Definitions section): Every statute contains a section

wherein the definitions of the terms which are frequently used in the statute are
provided.

(v) Marginal Notes: Marginal note clarifies the meaning of a section. Marginal notes
furnish some clue as to the meaning and purpose of the section. This helps to
understand the intention of the legislation. The mischief, if any creeps in the section
can be removed by a marginal note.
(vi) Proviso: The Provisos are appended to the sections of the statutes. The words
provided that, provided further that, provided also that are used in the starting
phrase of the proviso. Generally, provisos are used at the end of the preceding
section. A proviso is used for restraining the enacting clause or put some condition
or exclude something from the operation of the enacting section.

(vii) Illustrations: Illustrations are generally given at the end of the sections in
order to provide for the application of the principle of the sections to actual cases.

(viii) Non-obstante clause: notwithstanding, in spite of, nevertheless, despite the

fact that. A clause beginning with the words Notwithstanding anything contained in
in this Act or Notwithstanding anything contained in this Section is called Non-
Obstante clause. It is generally used to give over riding effect to certain provisions
over other provisions of the same Act or some other Act.

(ix) Explanation: Explanations are given in a statute to give explanation as to what

is to be included or excluded from the ambit of the main enactment or connotation
of some word occurring in it.

13. Green Papers: In European Union: A green paper is an official document

released by the European Union to stimulate debate and launching a process of
consultation at European level on a particular topic. A Green paper usually presents
a range of ideas and is meant to invite interested individuals or organizations to
contribute views and information. It may be followed by a white paper, an official
set of proposals that is used as a vehicle for their development into a Law.

In Canada Green paper is an official government document. These are statements

not of policy already determined, but of proposals put before the whole nation for
discussion. They are produced early in the policy making process while ministerial
proposals are still being formulated.

14. White Paper: A White paper is an authoritative report or guide that informs
readers concisely about a complex issue and presents the issuing body’s philosophy
on the matter. It is meant to help readers understand an issue, solve a problem or
make a decision.

White papers are a way the Government can present policy preferences before it
introduces legislation. Publishing a white paper tests public opinion on controversial
policy issues and helps the Government gauge its public impact.

In Canada, a white paper is a policy document approved by cabinet, tabled in the

house of commons and made available to the general public. The provision of policy
information through the use of white papers and green papers can help to create an
awareness of policy issues among parliamentarians and the public and to encourage
exchange of information and analysis. They can also serve as educational
techniques.

15. Ideals of Drafting: The four important ideals of drafting are Simplicity,
Preciseness, Consistency and Brevity.

16. Fundamental Principles of Legislation:

A. Legislation is the process of making or enacting laws. It is defined as the Laws

and Rules made by the Government.

B. The Fundamental Legislative Principles include requiring that legislation has

sufficient regard to (i) rights and liberties of individuals and (ii) the institution of
parliament

C. Regarding the sights and liberties of individuals Legislation has to ensure that it

(i) makes rights and liberties, or obligations, dependent on administrative cases

and to appropriate persons

(ii) is consistent with principles of natural justice

(iii) allows the delegation of power only in appropriate cases and to appropriate
persons

(iv) does not reverse the onus of proof in criminal proceedings without adequate
justification

(v) confers powers to enter premises and search for or seize documents or other
property only with a warrant issued by a Judge or other Judicial officer

(vi) provides appropriate protection against self-incrimination

(vii) does not affect rights and liberties retrospectively or impose obligations
retrospectively

(viii) does not confer immunity from proceeding or prosecution without adequate
justification

(ix) provides for the compulsory acquisition of property only with fair compensation

(x) has sufficient regard to aboriginal tradition and island custom

(xi) is unambiguous and drafted in sufficiently clear and precise manner

D. Regard to the institution of parliament:

(i) allows the delegation of legislative power only in appropriate cases and to
appropriate persons

(ii) sufficiently subjects the exercise of a delegated legislative power to the scrutiny
of the Legislative Assembly

(iii) authorizes the amendment of an Act only by another Act

E. Whether the subordinate legislation has regard to the institution of parliament

depends on the factors namely

(i) whether it is consistent with the policy objectives of the authorizing law

(ii) contains only matter which is appropriate to subordinate legislation

(iii) amends statutory instruments only

(iv) allows the sub-delegation of power delegated by an Act

(a) only in appropriate cases and to appropriate persons

(b) only if authorized by an Act.

17. Limitation of Legislation as a tool for change in relation to morality:

A. Morality means principles concerning the distinction between right and wrong or
good and bad behaviour

B. Behaviour which is commonly regarded as immoral is often also illegal. However,

legal and moral principles can be distinguished from each other.

C. Differences between morality and law:

Law Morality
Sanctions are invariable imposed for the There is no official sanction for immoral
infringement of a legal obligation behaviour although society often creates
its own from of censorship
Law is deliberately changes by the Morality cannot be deliberately changes.
Parliament and/or courts It evolves with time
Legal principles need to incorporate a Morality is invariably much more flexible
degree of certainty and variable
D. There are various actions where there is a conflict between morals and legality
involved in the said actions. Once classic example of such issues is the concept of
euthanasia which is also called mercy killing. An act or practice of painlessly putting
to death persons suffering from painful or incurable disease or incapacitating
physical disorder or allowing them to die by withholding treatment or withdrawing
artificial life support measures. There are many agitations in western countries to
legalise euthanasia or mercy killing.

E. Voluntary euthanasia is when a person with a terminal incurable or serious

progressive illness asks for their life to be ended by a doctor or carer which can
include a family or friend.

F. From ethical perspective euthanasia raises many important issues including the
right to life, the right to liberty, the avoidance of unnecessary pain, allocation of
appropriate medical resources and the rights and duties of doctors.

G. Section 309 of IPC 1860 prescribes a punishment for an attempt to commit

suicide in the form of simple imprisonment for a term which may extend to one
year or fine or both.

H. In the case of Channa jagadeeshwar Vs State of AP the appellant was prosecuted

under Section 309. The AP High Court held that Section 309 is not ultra vires of
Articles 19 and 21 of the Constitution as right to live under Article 21 impliedly
includes right to not live i.e, right to die.

I. In the case of State of Tamilnadu Vs Sivarasan the Supreme Court held that
Section 309 is constitutionally valid.

J. In the case of P. Ratnam Nagabhushan Patnaik Vs UOI, the Divisional Bench of

the supreme court held that Section 309 is not against the Constitution and no
person has a right to die. The Chief justice of Supreme Court held opined that
“Attempt to commit suicide deserves treatment rather than punishment”

Thus we can conclude that the morality involved in the issue of euthanasia is pitted
against the Legislation. It may be moral but it is not legal.

18. Forms of Legislative Instruments:

A. A Legislative instrument is an instrument in writing

(i) that is of legal character and

(ii) that is or was made in exercise of powers delegated by the Parliament

B. An instrument is taken to be of legislative character if

(i) it determines the law or alters the content of law rather than applying the law in
a particular case

(ii) it has direct or indirect effect of affecting a privilege or interest, imposing an

obligation creating a right or varying or removing an obligation or right

C. Forms of Legislative instruments are as follows:

Bills

Acts

Orders

Rules

Schedule

Ordinance

Regulations

Discussions of the Legislative committees etc.