LOVELY PROFESSIONAL UNIVERSITY

NAME- JITESH

REG.NO-12005163
SUBJECT- law 215( CA – 1)
SECTION- Le010

ROLL NO – RLe010a05

SUBMITTED TO- ashish singh taank

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 Elaborate upon different forms of legislative instruments Also
discuss the procedure and significance of pre-legislative consultation
process in India and United Kingdom

Types of Legislature 

Supreme Legislation
The Constitution of India is the supreme authority in regards to all matters relating to the
executive, legislature and judiciary. Supreme legislation is that legislation which derives its
power straight from the constitution. It cannot be challenged by any other legislative power.

In the Indian legal system, Acts of Parliament, Ordinances, laws made by President and
Governors in the limits of their authority given by the Constitution are part of the supreme
legislation.  In India, the Parliament possesses the authority of supreme legislation.

Subordinate Legislation
Subordinate legislation is any other legislation which is lower in authority from supreme
legislation and derives its power from any authority other than the sovereign power.  

Whereas, legislation created by authorities like corporations, municipalities, universities

under the authority of supreme legislation is part of subordinate legislation

The judiciary has been given legislative powers as well. Superior courts are allowed to
make rules to regulate their own function and administration. 

The executive’s main purpose is to enforce the law. It is also given legislative power in
some cases to make rules. This type of subordinate legislation is also called executive or
delegated legislation. 

Municipal corporates enjoy limited power that has been given by the legislation to make
rules and bye-laws for areas under their jurisdiction. In certain cases, the State gives
authority to autonomous bodies like universities to make their bye-laws which are enforced
by a court of justice. 

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However, the rule-making power of the executive is very limited in its scope. The rules
made by the executive are placed on both the Houses of the Parliament and are then
considered to be approved by the legislature. These rules then become part of the laws.

When a conflict arises in relation to the validity of rules made the executive, courts have the
authority to give judgement on any of the rules made by the executive so they do not exceed
their authority delegated to them under the parent act.

Legislative Powers
The legislative powers of centre and state are clearly defined in the constitution. These
powers are split into three different lists.

 Union List: The Union list consists of 100 items on which only the Parliament
has exclusive powers legislation because of their concern to the Centre.
 State List: The State list consists of 61 items where the state legislative
assembly has the authority to make laws that would be applicable in that
particular state. However, under certain circumstances, the parliament also has
legislative powers in matters of the state list.
 Concurrent List: The Concurrent List consists of 52 items where both the
parliament and the state legislature have the authority to make their own laws
under their own domains because it concerns both the parties.

IN UNITED KINGDOM

The decision to legislate

For each session of Parliament the government will have a legislative programme, which
is a plan of the bills that it will ask Parliament to consider in that session (the period
between elections is divided up into sessions, and each of those sessions usually lasts
about a year). Other bills may be passed each session that are not part of the legislative
programme. These may for example be emergency bills required to deal with a particular
issue that has arisen, or they may be Private Members’ Bills, introduced by a member
who is not a part of the government.

If a government department has a proposal for a bill that it wants to be included in the
legislative programme for a session, it must submit a bid for the bill to the Parliamentary
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Business and Legislation (PBL) Committee of the Cabinet. PBL Committee will consider
all of the bids for that session and make a recommendation to Cabinet about the
provisional content of the programme.

In considering whether to recommend that a bill should be given a provisional slot, PBL
Committee will consider factors such as the need for the bill (and whether a similar
outcome can be achieved by secondary legislation or without legislation), its relationship
to the political priorities of the government, the progress that has been made in working
up the proposals for the bill and whether the bill has been published in draft for
consultation.

Once the provisional programme has been agreed by Cabinet, PBL Committee will
review it in the lead-up to the beginning of the session. About a month before the start of
the session the Cabinet will finalise the programme. This will be announced in the
Queen’s Speech at the state opening of Parliament, which begins the session. The policy
contained in the bill will also need agreement from the appropriate policy committee of
the Cabinet.

Preparation of the bill

If a bill is given a slot in the legislative programme, the department concerned will create
a bill team to co-ordinate its preparation and passage through Parliament. This will
consist of a bill manager and other officials working on the bill. The other key players in
the department will be the officials with lead responsibility for the policies in the bill and
the department’s legal advisers.

The policy officials will prepare policy instructions for the departmental lawyers. These
instructions will in turn form the basis of instructions to the Office of Parliamentary
Counsel to draft the bill. Instructions to counsel will set out the background and relevant
current law and explain the changes in the law to be brought about by the bill. There will
usually be at least two counsel assigned to the bill, and larger bills may well have more
drafters. They will analyse the instructions and may have questions that need to be
answered before drafting can begin. Once the drafters feel they have a clear idea of the
policy, they will send drafts to the relevant departmental lawyers. The lawyers will
discuss the drafts with the relevant policy officials and send comments back.

The first draft of a clause or set of clauses for a topic is rarely the final word on that topic,
and the process of drafting and commenting on drafts will continue until the drafters and
the department are happy that the right result has been achieved by the draft in the
clearest possible way.

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Some provisions in a bill may require input from departments other than the one
sponsoring the bill. If the provisions of the bill apply to Wales or extend to Scotland or
Northern Ireland, it may also be necessary for the department or the drafter to consult the
devolved administration in the relevant part of the UK. Provisions in a bill which relate to
matters that have been devolved to the National Assembly for Wales, the Scottish
Parliament or the Northern Ireland Assembly will usually need the consent of that body.

Towards introduction

Although a bill may have a slot in the legislative programme, it cannot be introduced
until it has been specifically cleared for introduction by a meeting of PBL Committee.

The committee will consider the final (or near-final) draft of the bill together with a range
of other documents. Some of these, like the Explanatory Notes, will be published
alongside the bill after introduction. Others, like the department’s Parliamentary
Handling Strategy and its assessment of the relationship between the bill and the
European Convention on Human Rights, are for the committee’s consideration only.

If PBL Committee is satisfied that the bill is ready and that other legal and procedural
issues have been resolved, it will approve its introduction subject to any necessary minor
and drafting changes. The committee may also decide whether the bill should start in the
House of Commons or the House of Lords (see further below).

Some bills are published in draft for consultation before introduction. The bill may then
go through a process of pre-legislative scrutiny where it is considered by a Parliamentary
committee or committees. The committee will take evidence and make recommendations
to the government on the bill. These recommendations, together with the consultation
responses from members of the public, may mean that elements of the bill are modified
before introduction. Publication of a bill in draft still needs the agreement of PBL
Committee, although it will normally be cleared by correspondence rather than at a
meeting.

Parliamentary Stages

Most bills can begin either in the House of Commons or in the House of Lords. The
government will make this decision based on the need to make sure each House has a
balanced programme of legislation to consider each session. However, certain bills must
start in the Commons, such as a bill whose main aim is the imposition of taxation (the
annual Finance bill is an example of this). bills of major constitutional importance also
conventionally start in the Commons.
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Most bills will need to go through the following stages in each House before becoming
law (what is said below applies to either House except where indicated).

Why PLP is a must for India

PLP ensures that the concerned parties with relation to a draft bill are allowed to have a
say on the said bill and voice their concerns and opinions on it. In a country such as ours
with such varied and diverse interests, it is crucial that we have policy instruments like
PLP, to ensure that all groups feel their opinions are given the requisite value and
recognition. Simply put, if a piece of draft legislation is specifically related to a certain
sector or community, it is crucial that there be consultation with the relevant stakeholders
so as to ensure that the government gets practical inputs from those who will be affected
by their laws. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, which
criminalises the practice of triple talaq is a perfect example of this, wherein the concerned
groups were not consulted adequately before the bill was passed.

The bill is ridden with numerous fallacies, including the fact that triple talaq was listed as
a cognisable offence. Another alarming factor was that the police were given the mandate
to arrest Muslim men, without any judicial consideration or scrutiny as to whether the
person in question actually needed to be taken into custody. This basically meant that the
provisions were applicable even in circumstances where there was no complaint filed by
the spouse. Moreover, the government did not go through the designated practice of
consulting concerned members of civil society like women’s rights activists, criminal
lawyers or for that matter members of the Muslim community while in the process of
drafting the bill. This lack of communication between the concerned parties and the
government essentially ensured that the bill was set up to fail from the start.

Another example of how the government failed to connect with concerned community
members is the Transgender Persons (Protection of Rights) Bill, 2016, which
significantly diluted the rights of transgender persons as recognised in the landmark case
of NALSA v. Union of India. Basically, the Bill was drafted without adequate consulting
and discussing with members of the transgender community, as a result, the community
out and out rejected the Bill, owing to the fact that they felt it was not in their best
interests. Basically, The Bill groups wrongly groups together intersex persons ad
transgenders seeing them as one and the same, furthermore, it failed to properly address
important matters at the time such as the removal of Section 377 of the IPC. Also, it

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failed to address the trans community’s popular demand for inclusive matrimonial and
inheritance laws. Another sore point was the failure to make crimes gender-neutral so as
to properly exclude members of the transgender community.

In this case, if a pre-legislative consultative process had been followed by which the trans
community had been adequately informed and consulted prior to the drafting of the Bill,
a far more effective legislation could have been framed. Similar parallels can be drawn in
the case of the Criminal Law (Amendment) Ordinance, 2018, which essentially awards
death penalty to those accused of gang-raping a child. This bill was passed to simply
paper over the cracks, in light of the recent public outcry over rape and abuse of minors.
It failed to take into consideration the existing research literature which highlighted the
lack of actual deterrence of crime through the passing of a death sentence. Furthermore, it
did not take into account the risks involved, that is the possibility of the rapist murdering
their victim in fear of detection and punishment.

What is Green Paper and White Paper

In the United Kingdom, there is a practice of publishing a “Green Paper” prior to the
drafting of a law. The Government is usually involved in consultation with stakeholders
and experts for a few months and then publishes a “Green Paper” which covers all the
consultation documents the Government will depend on while drafting the new law.
Following this, the Government may also publish a “White Paper” which enumerates the
central principles based on which the Government intends to draft the law. Adopting
similar procedures in India must be strongly considered by the Government as it can help
in democratizing the overall lawmaking process.

Conclusion
A Pre legislative consultation policy has numerous merits and can help nudge our country
in the right direction. Given how diverse this nation is, it is crucial that we have a means
for citizens to get directly involved in the formulation of policy decisions, especially
those that have a direct stake in the bill and its nature. If we fail to do so we will risk
falling behind the times. Countries like Britain and South Africa and even the state of
Kerala already have already set up effective PLP processes. If anything Kerala’s effective
model is proof of how effective this process can be at home. Furthermore, this policy has
the capacity to make historically marginalised groups feel more included and cared for.
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