Statute
Content
1. Introduction
:
India’s first major civilization flourished around 2500 BC in the Indus river
valley. This civilization, which continued for 1000 years and is known as
Harappan culture, appears to have been the culmination of thousands of years of
settlement. For many thousands of years, India’s social and religious structures
have withstood invasions, famines, religious persecutions, political upheavals
and many other cataclysms. Few other countries have national identities with
such a long and vibrant history. The roots of the present day human institutions
lie deeply buried in the past. This is also true about the country’s law and legal
system. The legal system of a country at any given time cannot be said to be
creation of one man for one day;it represents the cumulative effect of the
endeavour, experience, thoughtful planning and patient labour of a large number
of people throughout generations.
The modern judicial system in India started to take shape with the control
th
of the British in India during the 17
century. The British Empire continued till
1947, and the present judicial system in India owes much to the judicial system
developed during the time of the British.
Therefore, the ambit of legal materials
is very broad which includes shruti, smriti, manu strimiti, Upnishad, Vedas, holy
religious books like Quran, bible, Geeta, various methodological texts so
recognized by various persons.
In order to understand the scope of legal materials administration of
justice in ancient India and in modern India is necessary:
A. Judicial Administration in Ancient India
Law in ancient India meant “Dharma” in the broader sense. The Vedas, regarded
as divine revelation, were the supreme source of authority for all codes which
contained what was then understood as law or dharma. The traditional records
have governed and molded the life and evolution of the Hindu community from
age to age. These are supposed to have their source in the Rigveda. Justice was
administered in ancient India according to the rules of civil and criminal law as
provided in the
Manusmriti.
There was a regular system of local courts from
which an appeal lay to the superior court at the capital, and from there to the
King in his own court.
The King’s Court was composed of himself, a number of
judges, and his domestic chaplain who directed his conscience;but they only
advised and the decision rested with the King. Arbitrators in three gradations
existed below the local courts: first of kinsmen, secondly of men of the same
trade, and thirdly, of townsmen. An appeal lay from the first to the second, from
the second to the third, and from the third to the local court. Thus under this
system there were no less than five appeals. Decision by arbitration, generally of
five
(Panches),
was very common when other means of obtaining justice were
not available. The village headman was the judge and magistrate of the village
community and also collected and transmitted the Government revenue.
B. Legal System in India during the British Period
India has one of the oldest legal systems in the world. Its law and jurisprudence
stretches back centuries, forming a living tradition which has grown and
evolved with the lives of its diverse people.
The history of the present judicial
system may be traced back to the year 1726, when a Charter was issued by King
George I for bringing about important changes in the judicial administration of
the Presidency Towns of Bombay, Calcutta and Madras. The system of appeals
from India to the Privy Council in England was introduced by this Charter in
1726. In order to bring about better management of the affairs of the East India
Company, the East India Company Regulating Act of 1773 was promulgated by
the King.
This Act subjected the East India Company to the control of the British
Government and made a provision for His Majesty by Charters or Letters Patent
to establish the Supreme Court of Judicature at Fort William at Calcutta,
superseding the then prevalent judicial system.
The Supreme Court of Judicature at Fort William was established by a letter
patent issued on March 26, 1774. This Court, as a court of record, had full power
and authority to hear and determine all complaints against any of His Majesty’s
subjects for any crimes and also to entertain, hear and determine any suits or
actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa.
Two more Supreme Courts, conceived along the same lines as that of the
Supreme Court of Calcutta, were established at Madras and Bombay by King
George III through Charters issued on 26th December, 1800 and on 8th
December, 1823 respectively. The role of the Privy Council has been a great
unifying force and the instrument and embodiment of the rule of law in India.
The Judicial Committee of the Privy Council was made a Statutory Permanent
Committee of legal experts to hear appeals from the British Colonies in the year
1833 by an Act passed by the British Parliament. Thus, the Act of 1833
transformed the Privy Council into a great imperial court of unimpeachable
authority. The Indian High Court’s Act 1861 reorganized the then prevalent
judicial system in the country by abolishing the Supreme Courts at Fort William,
Madras, and Bombay, and also the then existing Sadar Adalats in the Presidency
Towns. The High Courts were established having civil, criminal, admiralty, vice
admiralty, testimony, intestate, and matrimonial jurisdiction, as well as original
and appellate jurisdiction. Provincial autonomy was established in India with the
establishment of the Government of India Act, 1935, which introduced
responsibility at the provincial level and sought the Union of British Indian
Provinces with the rulers of Estate in a federation. As a federal system depends
largely upon a just and competent administration of the law between
governments themselves, the 1935 Act provided for the establishment of the
Federal Court, forerunner of the
Supreme Court of India. The Federal Court was the second highest Court in the
judicial hierarchy in India. The Federal Court was the first Constitutional Court
and also the first all India Court of extensive jurisdiction, and it had Original
Jurisdiction in matters where there was dispute between the provinces or
federal States. It was also the Appellate Court for the judgments, decrees, or final
orders of the High Courts. Thus, the Federal Court of India had original, appellate
and advisory jurisdiction. The doctrine of precedent in India also had its roots in
Federal Court as the law declared by the Federal Court and Privy Council has
been given binding affect on all the courts in British India.
2. Classification of Legal Materials:
Legal research materials help us find out what the law is. They include
secondary and primary sources. Secondary sources explain the law. They
include legal dictionaries, legal encyclopedias, legal periodicals, annotations,
and treatises.
Primary sources are the law. They include codes and cases. It is mandatory
for us to follow primary authority from our jurisdiction. Authority that is
merely persuasive includes all secondary authority as well as primary
authority from other jurisdictions (and from courts that are lower than the
one we’re dealing with, in our own jurisdiction).
A. Primary Law Sources
Remembering that the Government is divided into three branches is helpful in
distinguishing the source of primary legal materials.
➢ The Legislative Branch is responsible for creating laws. Laws are
organized by subjects into sets called statutes.
➢
The Judicial Branch interprets the laws
. Courts issue opinions in the
form of case law. Cases are compiled into sets called reporters.
Case
reporters
contain published cases from a particular court or jurisdiction or
on a specific topic. Indexes for the case reporters are called d
igests
.
➢ The Executive Branch enforces the laws passed by the Legislative Branch.
Most of the actual enforcement duties are delegated to administrative
agencies who then issue regulations. Regulations are compiled by subjects
into sets called codes.
B. Secondary Law Sources
Secondary legal sources provide commentary and interpretation of the
law. Attorneys and students often use secondary sources as a starting
point when they are researching an area of law that is unfamiliar to them.
A. Legal encyclopedias offer a concise summary of most topics of law.
Arranged by subject, encyclopedias also contain abstracts of cases that
interpret each area of law. There are two general legal encyclopedias:
B. Legal Dictionaries
and
Thesaur
as are useful for finding definitions of
legal terminology or finding alternative terms to use when researching.
C. Treatises
&
Loose leafs
are texts that cover a specific area of law such
as pollution or the environment. Treatises contain footnote citations to
related primary law, such as statutes and cases. Loose leafs bring
together commentary and the relevant primary law sources such as
statutes and cases. They are usually updated on a weekly or monthly
basis and thus offer very current information.
D.
Legal periodicals
include legal newspapers, bar journals and law
reviews. These publications contain articles and are a good place to
start if you want very current information. To locate articles, use L
egal
Trac
k
, an online index of over 800 periodicals from 1980-present.
Manifestations of Legal Literature
Legal fraternity may need different types of information, such as case laws,
statutory provisions, rules framed under any act, object and reasons of any act,
amendment of any act, notifications issued under any particular statute, debates
in parliament at the time of enactment of any particular act, or academic articles
on a given topic in different situations.
Legal literature manifests itself in many forms such as:
(i) Bare Acts (ii) Commentaries on specific laws (iii) Manuals/local acts
(iv) Reports
a) Law Commission Reports
b) Committee/Commission Reports
c) Annual Reports
d) Parliamentary Committee Reports
Joint Committee
Select Committee
Standing Committee
(v) Gazettes
a) Central Government
b) State Government
(vi) Parliamentary Debates
Constituent Assembly Debates Lok Sabha Debates
Rajya Sabha Debates
(vii) Parliamentary Bills
Lok Sabha Bills
State Legislature Bills
Rajya Sabha Bills
(viii) Law Journals
Academic Journals (containing articles only)
Law Reports (containing only the full text of case laws)
Hybrid, i.e. a combination of both articles and case laws. Some of the
journals also publish statutory materials such as acts, amendments, rules,
etc.
Only legislative materials such as acts, rules, notifications, etc.
(ix) Digests
(x) Legal Dictionaries/Law Lexicons
(xi) Legal encyclopedic works: such as American jurisprudence, corpus juris
secundum, Halsbury law of England, and Halsbury laws of India.
STATUTE
“the essence of law lies in the spirit, not its letter, for the letter is significant
only as being the external manifestation of the intention that underlies it” –
Salmond
MEANING AND CLASSIFICATION OF STATUTES
:
A Statute is a formal written enactment of a legislative authority that governs
a country, state, city, or county. Typically, statutes command or prohibit
something, or declare policy. The word is often used to distinguish law made
by legislative bodies from the judicial decisions of the common law and the
regulations issued by Government agencies. - [Black, Henry Campbell (1990).
Black's Law Dictionary, Sixth Edition]
A statute is a will of legislature conveyed in the form of text. The Constitution
of India does not use the term ‘Statute’ but it uses the term ‘law’. ‘Law’
includes any ordinance, order, bye-law, rule, regulation, notification, custom
or usage having the force of law. [Article 13 (3) (a) of the constitution].
Therefore, a Statute is the will of the legislature and Indian Statute is an Act of
the Central or State Legislature. Statutes include Acts passed by the Imperial
or Provincial Legislature in Pre-Independence days as well as Regulations.
Statutes generally refer to the laws and regulations of every sort, every
provision of law which permits or prohibit anything.
A Statute may generally be classified with reference to its
duration, nature of
operation, object and extent of application. On the basis of duration, statutes
are classified as either
(1) Perpetual or Temporary
. It is a Perpetual Statute when no time is fixed for its
duration and such statute remains in force until its repeal, which may be
express or implied. It is perpetual in the sense that it is not obligated by efflux
of time or by non-user.
A Temporary statute is one where its duration is only
for a specified time and it expires on the expiry of the specified time unless it
is repealed earlier. The duration of temporary Statute may be extended by
fresh Statute or by exercise of power conferred under the original statute. The
expired statute may be revived by re-enacting it in similar terms or by
enacting a statute expressly saying that the expired Act is herewith revived.
(2) Classification with reference to Nature of Operation
(i)
Prospective statutes – A statute which operates upon acts and
transactions which have not occurred when the statutes takes effect,
that is which regulates the future is a Prospective statute.
(ii)
Retrospective statutes – Every statute takes away or impairs vested
rights acquired under the existing laws or creates a new obligation into
a new duty or attaches a new disability in respect of transactions or
considerations already passed are deemed retrospective or retroactive
statute.
(iii)
Directory statutes – A directory statute is generally affirmative in its
terms, recommends a certain act or omissions, but imposes no penalty
on non-observance of its provisions.
(iv)
Mandatory statutes – A Mandatory statute is one which compels
performance of certain acts and directs that a certain thing must be
done in a certain manner or form. A type of Mandatory Statute is the
Imperative
Statute.
Imperative
Statutes
are
often
negative
or
prohibitory in its terms and makes certain acts or omissions absolutely
necessary and subjects a contravention of its provision to a penalty.
When the statute is passed for the purposes of enabling something to
be done and prescribes the formalities which are to attend its
performance, those prescribed formalities which are essential to the
validity of the things which are done are called imperative or absolute,
but those which are not essential and may be disregarded without
invalidating the things to be done are called directory statutes.
Imperative Statutes must be strictly observed. Directory Statute may be
substantially complied with.
C.
Classification with reference to Objective
(i)
Enabling statutes – These statutes are which enlarges the common law
where it is too strict or narrow. It is a statute which makes it lawful to do
something which would not otherwise be lawful.
(ii) Disabling statutes – These statutes restrict or cut down rights existing at
common law.
(iii)
Permissive statute – This type of statute allows certain acts to be done
without commanding that they be performed.
(iv)
Prohibitory statute – This type of statute which forbids the doing of
certain things.
(v)
Codifying Statute – It presents and orderly and authoritative statement
of the leading rules of law on a given subject, whether those rules are to
be found in statute law or common law.
(vi)
Consolidating statute – The purpose of consolidating statute is to
present the whole body of statutory law on a subject in complete form
repeating the former statute.
(vii) Curative or validating Statute
- It is passed to cure defects in the prior
law and too validate legal proceedings, instruments or acts of public
and private administrative powers which in the absence of such statute
would be void for want of conformity with existing legal requirements
but which would have been valid if the statute has so provided at the
time of enacting.
(viii) Repealing Statute – A statute which either expressly or by necessary
implication revokes or terminates another statute is a repealing statute.
(ix)
Amending Statute – It is a Statute which makes and addition to or
operates to change the original law so as to effect an improvement or
more effectively carry out the purpose for which the original law was
passed.
Common Essentials of a Statute:
A. Title of the Act:
In general, the title's purpose is "to limit the subject matter
of the Act to one general subject and to afford reasonably definite
information to the members of the Assembly and the people as to the
subject matter dealt with by the Act. Title may also include as to the
amendments or repealment of a specified provision.
B. Enacting Clause:
C. Definition Clause:
D. Emergency Clause:
E. Penalty Provisions
F. Effective Dates:
G. Constitution of Competent Authority:
H. Referendum Clause:
I. Dispute Resolution:
J. Termination or Expiration dates:
REPORTS
The "law" on a given subject is found not only in statutes and regulations but also
in the judicial decisions of courts. Finding cases which are "on point"--i.e., which
have a similar fact situation and legal issue--can be challenging and, on occasion,
a more time-consuming and circuitous process than locating statutory
provisions. The theory of binding force of precedent is firmly established in
England. A judge is bound to follow the decision of any court recognized as
competent to bind him, and it becomes his duty to administer the law as
declared by such a court. The system of precedent has been a powerful factor in
the development of the common law in England. Because of common law
heritage, the binding force of precedents has also been firmly established in
India, meaning thereby that the judgments delivered by the superior courts are
as much the law of the country as legislative enactments.
The theory of precedent brings in its wake the system of law reporting as its
necessary concomitant. Publication of decisions is a condition necessary for the
theory of precedent to operate;there must be reliable reports of cases. If the
cases are to be binding, then there must be precise records of what they lay
down, and it is only then that the doctrine of
stare decisis
can function
meaningfully.
The Indian Law Reports Act of 1875 authorizes the publication of the reports of
the cases decided by the high courts in the official report and provides that, “No
Court shall be bound to hear cited, or shall receive or treat as an authority
binding on it the report of any case decided by any of the said High Courts on or
after the said day other than a report published under the authority of the
Governor General in Council.”
Though the Law Reports Act gave authenticity to the official reports, it did not
take away the authority of unpublished precedents or give a published decision a
higher authority than that possessed by it as a precedent. A Supreme Court or
high court decision is authoritative by itself, not because it is reported. The
practice of citing unreported decisions thus led to the publication of a large
number of private reports. The unusual delay in publication of official reports
and incompleteness of the official reports made the private reports thrive,
resulting in a number of law reports in India being published by nonofficial
agencies on a commercial basis.
In India, there are more than 300 law reports published in the country. They
cover a very wide range and are published from various points of view. A “union
catalogue” compiled by the Supreme Court Judges’ Library of the current law
journals subscribed by the libraries of various high court and Supreme Court
judges (appended at the end of this paper) gives details of various law reports
published from India. It also gives details of various foreign law reports
submitted by law libraries in India, which gives an idea of the “foreign journals”
being used by the legal fraternity in the country.
EXAMPLES : SUPREME COURT CASES, SUPREME COURTS REPORTS, ALL
INDIA REPORTER, BOMBAY LAW REPORTS, ETC.
Reports IN INDIA IS NOT LIMITED TO CASE LAWS BUT ALSO
FOLLWING CATEGORIES OF REPORTING:
INCLUDES
a) Law Commission Reports
The Law Commission of India was started in 1955 by an executive order. In
order to confront new situations and problems which arise from time to time
and to amend law which calls for amendment, a body like the Law
Commission is absolutely essential. This is because it is a body which is not
committed to any political party and which consists of judges and lawyers,
who are expert in the field and who would bring to bear upon the problems
purely judicial and impartial minds. As the parliament is very busy in
daytoday debates and discussions, its members do not have the necessary
time to consider legal changes required to meet the new situations and
problems in a constructive manner. For that the Law Commission may be
able to serve its purpose effectively. The function of the law commission is to
study the existing laws, suggest amendments to the same if necessary, and
to make recommendations for enacting new laws. The recommendations for
amendment of the existing laws are made by the commission either
suo motu
or
on the request of the government. Presently, the eighteenth Law Commission is
in existence. The Law Commission in India has brought out 207 scholarly
reports to date on various legal aspects. The full text for each report is available
on the commission’s website. Law Commission Reports, while proposing any
new enactment or proposing any amendment in the existing statute, review the
legal position on that particular aspect in India as well as in other countries.
Hence Law Commission reports are treated as useful tools for ascertaining the
legislative intent.
b)
Committee/Commission Reports
: he Commission of Inquiry Act, 1952 is an
Act to provide for the appointment of Commissions of Inquiry and for vesting
such Commissions with certain powers.
Section 3 of this Act provides for appointment for Commission. It lays down that
the appropriate Government may, if it is of opinion that it is necessary so to do,
and shall, if a resolution in this behalf is passed by the House of the People or, as
the case may be, the Legislative Assembly of the State, by notification in the
Official Gazette, appoint a Commission of Inquiry for the purpose of(i) Making an inquiry into any definite matter of public importance, and
(ii) Performing such functions and within such time as may be specified in the
notification.
And the commission so appointed shall make the inquiry and perform the
functions accordingly.
The Commission consists of one or more members appointed by the appropriate
Government and where the Commission consists of more than one member, one
of them may be appointed as the Chairman thereof.
“The appropriate Government shall cause to be laid before the House of the
People or, as the case may be, the Legislative Assembly of the State, the report, if
any, of the Commission on the inquiry made by the Commission under
sub-section (1), together with a memorandum of the action taken thereon, within
a period of 6 months of the submission of the report by the Commission to the
appropriate Government.”
Sec. 3 (4) is conceived as a check upon the Government inaction or deliberate
suppression of the report before the Parliament/Legislative Assembly along with
the Memorandum of action taken by it thereon.
Section 4 deals with the powers of the Commission. It lays down that the
Commission shall have the powers of civil courts while trying a suit under the
Code of Civil Procedure in respect of the following matters, namely(a) Summoning and enforcing the attendance of any person, and examining him
on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court of office;
(e) Issuing commissions for the examination of witnesses or documents; and
(f) Any other matter which may be prescribed.
c) Annual Reports:
d) Parliamentary Committee Reports:
The work done by the Parliament in modern times is not only varied in nature,
but considerable in volume. The time at its disposal is limited. It cannot,
therefore, give close consideration to all the legislative and other matters that
come up before it. A good deal of its business is, therefore, transacted by what
are called the Parliamentary Committees
Ad hoc and Standing Committees
Parliamentary Committees are of two kinds:
Ad hoc
Committees and the
Standing Committees. A
d hoc
Committees are appointed for a specific purpose
and they cease to exist when they finish the task assigned to them and submit a
report. Whereas standing committee is a permanent body.
Select and Joint Committees
When a Bill comes up before a House for general discussion,it is open to that
House to refer it to a Select Committee of the House or a Joint Committee of the
two Houses. A motion has to be moved and adopted to this effect in the House in
which the Bill comes up for consideration. In case the motion adopted is for
reference of the Bill to a Joint Committee, the decision is conveyed to the other
House requesting them to nominate members of the other House to serve on the
Committee. The Select or Joint Committee considers the Bill clause by clause
just as the two Houses do. Amendments can be moved to various clauses by
members of the Committee. The Committee can also take evidence of
associations, public bodies or experts who are interested in the Bill. After the Bill
has thus been considered the Committee submits its report to the House.
Members who do not agree with the majority report may append their minutes
of dissent to the report.
Law Journal As Legal Material
Law review or journal articles are another great secondary source for legal
research, valuable for the depth in which they analyze and critique legal topics,
as well as their extensive references to other sources, including primary
sources.
Law reviews are scholarly publications, usually edited by law students
in conjunction with faculty members. They contain both lengthy articles and
shorter essays by professors and lawyers, as well as comments, notes, or
developments in the law written by students. L
aw review articles often focus on
new or emerging areas of law and they can offer more critical commentary
than a legal encyclopedia.
Some law reviews are dedicated to a particular topic,
such as gender and the law or environmental law, and will include in their
contents the proceedings of a wide range of panels and symposia on timely legal
issues.
Categories of Journals
➢ Academic Journals (containing articles only)
➢ Law Reports (containing only the full text of case laws)
➢
Hybrid, i.e. a combination of both articles and case laws. Some
of the journals also publish statutory materials such as acts, amendments,
rules, etc.
➢
Only legislative materials such as acts, rules, notifications, etc.
Important Academic Law Journals
1 Annual Survey of Indian Law New Delhi: ILI
2 Journal Indian Law Institute
3 Journal of Constitutional & Parliamentary Studies
4 Indian Journal of International Law
5 Indian Bar Review
6 National Law School of Indian Review
7 Journal of Human Rights (NHRC)
Article 38 of VCLT as well as Art. 36 of ICJ recognized law journals and
reviews as a source of laws.
MANUAL
Comprehensive
and step-by-step guide to a particular
topic
for both
beginners and practitioners that also
serves
as a
reference book
. A manual
details what is given and what is r
equired
, explains how to put the
presented
information
into p
ractice
, and
instructs
how to solve p
roblems
as they
occur. This term is commonly used interchangeably with
handbook
.
Manual Generally includes:
●
Annotated Text of Act & Rules framed thereunder
●
Text of Relevant Rules given along with text of relevant section of Act 2013
●
Annotation under each section shows
●
o
Text of relevant rules framed under the relevant section
o
Reference to relevant Forms prescribed
o
Exemptions
o
Gist of relevant circulars and notifications
o
Date of enforcement of provision
o
Corresponding provision
o
Words & Phrases judicially noticed
o
Allied Laws referred to in the provision
Text of Circulars & Notifications issued Text of prescribed Forms
Manual is a
Secondary sources
offer analysis, commentary, or a
restatement of primary law and are used to help locate and explain primary
sources of law. Secondary sources may influence a legal decision but do not
have the controlling or binding authority of primary sources.
1.
AIR Manual: Civil and Criminal, Edn. 6, Vol. 110, 1314Nagpur:AIR
Pvt. Ltd., 2004
2.
Encyclopedia of Important Central Acts & Rules, Vols. 20, Delhi:
Universal Law Publishers, 2004, Reprint 2005
BILL
A
bill
is proposed legislation under consideration by a
legislature
. A bill
does not become law until it is passed by the legislature and, in most cases,
approved by the e
xecutive
. Once a bill has been enacted into law, it is
called an
Act
or a
statute
.
A Bill is the draft of a legislative proposal. It has to pass through various
stages before it becomes an Act of Parliament.
India
is a democracy having quasi-federal structure of Government. Laws are
made
separately
at
different
levels,
by
the
Union
Government
(i.e.
The
Government of India
/
Federal Government
/ Central 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
. The legislative procedure for states with bicameral legislatures requires
that proposed bills be passed, first in the state's Lower House or the
Vidhan
Sabha
and then in the Upper House or the
State Vidhan Parishad
. For states with
unicameral legislatures, laws and bills need to be passed only in the
state's
Vidhan Sabha
, for they don't have a
Vidhan Parishad
. Overall this is
similar to the 'House of Commons' and the 'House of Lords' in UK.
Difference between a Bill and an Act[
edit
]
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
. As soon as the bill has been framed, it has to be published
in the news papers 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
or private members. The former are called government bills and
the latter,
private members' bills
. Bills may also be classified as p
ublic
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. The
Orphanages and Charitable Homes Bill
or
the
Muslim Waqfs Bills
are examples of private bills.
How a Bill becomes an Act in Parliament[
edit
]
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
[
edit
]
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.
Publication in the official Gazette
After a Bill has been introduced, it is published in T
he Gazette of India
. Even
before introduction, a Bill might, with the permission of the Speaker, be
published in the
Gazette
. In such cases, leave to introduce the Bill in the House is
not asked for and the Bill is straightaway introduced.
Reference of Bill to a 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 S
tanding 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
straightaway take it into consideration.
If a Bill is referred to a Select/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/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 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.
Bill in the other House
After the Bill is passed by one House, 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 shall
be that the two houses have disagreed. The other House may keep a money bill
for 14 days and an ordinary Bill for three 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.
Joint session of both Houses
In case of a deadlock between the two houses or in a case where more than six
months lapse in the other house, the P
resident
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. Until now,
only
three
bills:
the
Dowry
Prohibition Act
(1961), the B
anking 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, it is sent to the
President
for his approval. 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,
with his recommendations. 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 council of ministers.
Following position can be arrived by reading article 111 of Indian constitution
with article 74. The president may also effectively withhold his assent as per his
own discretion, which is known as
pocket veto
. The pocket veto is not written in
the constitution and has only been exercised once by President Z
ail 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. In the case of a
Constitutional Amendment Bill
, the President
is bound to give his assent. In case of the State Governments, the consent of the
State's Governor has to be obtained.
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 is later
approved by the Parliament), or a specific date is mentioned in the Act itself
(mostly in 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.
Money Bills
Bills which exclusively contain provisions for imposition and abolition of taxes,
for appropriation of moneys out of the Consolidated Fund, etc., are certified as
Money Bills. Money Bills can be introduced only in Lok Sabha. The Rajya Sabha
cannot make amendments to a Money Bill passed by the Lok Sabha and sent to it.
It can, however, recommend amendments in a Money Bill, but must return all
Money Bills to Lok Sabha within fourteen days from the date of their receipt. The
Lok Sabha can choose to accept or reject any or all of the recommendations of
the Rajya Sabha with regard to a Money Bill. If Lok Sabha accepts any of the
recommendations of Rajya Sabha, the Money Bill is deemed to have been passed
by both Houses with amendments recommended by Rajya Sabha and accepted
by Lok Sabha. If Lok Sabha does not accept any of the recommendations of Rajya
Sabha, the Money Bill is deemed to have been passed by both Houses in the form
in which it was passed by Lok Sabha without any of the amendments
recommended by Rajya Sabha. If a Money Bill passed by Lok Sabha and
transmitted to Rajya Sabha for its recommendations is not returned to Lok Sabha
within the said period of fourteen days, it is deemed to have been passed by both
Houses at the expiration of the said period in the form in which it was passed by
Lok Sabha.
:
India’s first major civilization flourished around 2500 BC in the Indus river
valley. This civilization, which continued for 1000 years and is known as
Harappan culture, appears to have been the culmination of thousands of years of
settlement. For many thousands of years, India’s social and religious structures
have withstood invasions, famines, religious persecutions, political upheavals
and many other cataclysms. Few other countries have national identities with
such a long and vibrant history. The roots of the present day human institutions
lie deeply buried in the past. This is also true about the country’s law and legal
system. The legal system of a country at any given time cannot be said to be
creation of one man for one day;it represents the cumulative effect of the
endeavour, experience, thoughtful planning and patient labour of a large number
of people throughout generations.
The modern judicial system in India started to take shape with the control
th
of the British in India during the 17
century. The British Empire continued till
1947, and the present judicial system in India owes much to the judicial system
developed during the time of the British.
Therefore, the ambit of legal materials
is very broad which includes shruti, smriti, manu strimiti, Upnishad, Vedas, holy
religious books like Quran, bible, Geeta, various methodological texts so
recognized by various persons.
In order to understand the scope of legal materials administration of
justice in ancient India and in modern India is necessary:
A. Judicial Administration in Ancient India
Law in ancient India meant “Dharma” in the broader sense. The Vedas, regarded
as divine revelation, were the supreme source of authority for all codes which
contained what was then understood as law or dharma. The traditional records
have governed and molded the life and evolution of the Hindu community from
age to age. These are supposed to have their source in the Rigveda. Justice was
administered in ancient India according to the rules of civil and criminal law as
provided in the
Manusmriti.
There was a regular system of local courts from
which an appeal lay to the superior court at the capital, and from there to the
King in his own court.
The King’s Court was composed of himself, a number of
judges, and his domestic chaplain who directed his conscience;but they only
advised and the decision rested with the King. Arbitrators in three gradations
existed below the local courts: first of kinsmen, secondly of men of the same
trade, and thirdly, of townsmen. An appeal lay from the first to the second, from
the second to the third, and from the third to the local court. Thus under this
system there were no less than five appeals. Decision by arbitration, generally of
five
(Panches),
was very common when other means of obtaining justice were
not available. The village headman was the judge and magistrate of the village
community and also collected and transmitted the Government revenue.
B. Legal System in India during the British Period
India has one of the oldest legal systems in the world. Its law and jurisprudence
stretches back centuries, forming a living tradition which has grown and
evolved with the lives of its diverse people.
The history of the present judicial
system may be traced back to the year 1726, when a Charter was issued by King
George I for bringing about important changes in the judicial administration of
the Presidency Towns of Bombay, Calcutta and Madras. The system of appeals
from India to the Privy Council in England was introduced by this Charter in
1726. In order to bring about better management of the affairs of the East India
Company, the East India Company Regulating Act of 1773 was promulgated by
the King.
This Act subjected the East India Company to the control of the British
Government and made a provision for His Majesty by Charters or Letters Patent
to establish the Supreme Court of Judicature at Fort William at Calcutta,
superseding the then prevalent judicial system.
The Supreme Court of Judicature at Fort William was established by a letter
patent issued on March 26, 1774. This Court, as a court of record, had full power
and authority to hear and determine all complaints against any of His Majesty’s
subjects for any crimes and also to entertain, hear and determine any suits or
actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa.
Two more Supreme Courts, conceived along the same lines as that of the
Supreme Court of Calcutta, were established at Madras and Bombay by King
George III through Charters issued on 26th December, 1800 and on 8th
December, 1823 respectively. The role of the Privy Council has been a great
unifying force and the instrument and embodiment of the rule of law in India.
The Judicial Committee of the Privy Council was made a Statutory Permanent
Committee of legal experts to hear appeals from the British Colonies in the year
1833 by an Act passed by the British Parliament. Thus, the Act of 1833
transformed the Privy Council into a great imperial court of unimpeachable
authority. The Indian High Court’s Act 1861 reorganized the then prevalent
judicial system in the country by abolishing the Supreme Courts at Fort William,
Madras, and Bombay, and also the then existing Sadar Adalats in the Presidency
Towns. The High Courts were established having civil, criminal, admiralty, vice
admiralty, testimony, intestate, and matrimonial jurisdiction, as well as original
and appellate jurisdiction. Provincial autonomy was established in India with the
establishment of the Government of India Act, 1935, which introduced
responsibility at the provincial level and sought the Union of British Indian
Provinces with the rulers of Estate in a federation. As a federal system depends
largely upon a just and competent administration of the law between
governments themselves, the 1935 Act provided for the establishment of the
Federal Court, forerunner of the
Supreme Court of India. The Federal Court was the second highest Court in the
judicial hierarchy in India. The Federal Court was the first Constitutional Court
and also the first all India Court of extensive jurisdiction, and it had Original
Jurisdiction in matters where there was dispute between the provinces or
federal States. It was also the Appellate Court for the judgments, decrees, or final
orders of the High Courts. Thus, the Federal Court of India had original, appellate
and advisory jurisdiction. The doctrine of precedent in India also had its roots in
Federal Court as the law declared by the Federal Court and Privy Council has
been given binding affect on all the courts in British India.
2. Classification of Legal Materials:
Legal research materials help us find out what the law is. They include
secondary and primary sources. Secondary sources explain the law. They
include legal dictionaries, legal encyclopedias, legal periodicals, annotations,
and treatises.
Primary sources are the law. They include codes and cases. It is mandatory
for us to follow primary authority from our jurisdiction. Authority that is
merely persuasive includes all secondary authority as well as primary
authority from other jurisdictions (and from courts that are lower than the
one we’re dealing with, in our own jurisdiction).
A. Primary Law Sources
Remembering that the Government is divided into three branches is helpful in
distinguishing the source of primary legal materials.
➢ The Legislative Branch is responsible for creating laws. Laws are
organized by subjects into sets called statutes.
➢
The Judicial Branch interprets the laws
. Courts issue opinions in the
form of case law. Cases are compiled into sets called reporters.
Case
reporters
contain published cases from a particular court or jurisdiction or
on a specific topic. Indexes for the case reporters are called d
igests
.
➢ The Executive Branch enforces the laws passed by the Legislative Branch.
Most of the actual enforcement duties are delegated to administrative
agencies who then issue regulations. Regulations are compiled by subjects
into sets called codes.
B. Secondary Law Sources
Secondary legal sources provide commentary and interpretation of the
law. Attorneys and students often use secondary sources as a starting
point when they are researching an area of law that is unfamiliar to them.
A. Legal encyclopedias offer a concise summary of most topics of law.
Arranged by subject, encyclopedias also contain abstracts of cases that
interpret each area of law. There are two general legal encyclopedias:
B. Legal Dictionaries
and
Thesaur
as are useful for finding definitions of
legal terminology or finding alternative terms to use when researching.
C. Treatises
&
Loose leafs
are texts that cover a specific area of law such
as pollution or the environment. Treatises contain footnote citations to
related primary law, such as statutes and cases. Loose leafs bring
together commentary and the relevant primary law sources such as
statutes and cases. They are usually updated on a weekly or monthly
basis and thus offer very current information.
D.
Legal periodicals
include legal newspapers, bar journals and law
reviews. These publications contain articles and are a good place to
start if you want very current information. To locate articles, use L
egal
Trac
k
, an online index of over 800 periodicals from 1980-present.
Manifestations of Legal Literature
Legal fraternity may need different types of information, such as case laws,
statutory provisions, rules framed under any act, object and reasons of any act,
amendment of any act, notifications issued under any particular statute, debates
in parliament at the time of enactment of any particular act, or academic articles
on a given topic in different situations.
Legal literature manifests itself in many forms such as:
(i) Bare Acts (ii) Commentaries on specific laws (iii) Manuals/local acts
(iv) Reports
a) Law Commission Reports
b) Committee/Commission Reports
c) Annual Reports
d) Parliamentary Committee Reports
Joint Committee
Select Committee
Standing Committee
(v) Gazettes
a) Central Government
b) State Government
(vi) Parliamentary Debates
Constituent Assembly Debates Lok Sabha Debates
Rajya Sabha Debates
(vii) Parliamentary Bills
Lok Sabha Bills
State Legislature Bills
Rajya Sabha Bills
(viii) Law Journals
Academic Journals (containing articles only)
Law Reports (containing only the full text of case laws)
Hybrid, i.e. a combination of both articles and case laws. Some of the
journals also publish statutory materials such as acts, amendments, rules,
etc.
Only legislative materials such as acts, rules, notifications, etc.
(ix) Digests
(x) Legal Dictionaries/Law Lexicons
(xi) Legal encyclopedic works: such as American jurisprudence, corpus juris
secundum, Halsbury law of England, and Halsbury laws of India.
STATUTE
“the essence of law lies in the spirit, not its letter, for the letter is significant
only as being the external manifestation of the intention that underlies it” –
Salmond
MEANING AND CLASSIFICATION OF STATUTES
:
A Statute is a formal written enactment of a legislative authority that governs
a country, state, city, or county. Typically, statutes command or prohibit
something, or declare policy. The word is often used to distinguish law made
by legislative bodies from the judicial decisions of the common law and the
regulations issued by Government agencies. - [Black, Henry Campbell (1990).
Black's Law Dictionary, Sixth Edition]
A statute is a will of legislature conveyed in the form of text. The Constitution
of India does not use the term ‘Statute’ but it uses the term ‘law’. ‘Law’
includes any ordinance, order, bye-law, rule, regulation, notification, custom
or usage having the force of law. [Article 13 (3) (a) of the constitution].
Therefore, a Statute is the will of the legislature and Indian Statute is an Act of
the Central or State Legislature. Statutes include Acts passed by the Imperial
or Provincial Legislature in Pre-Independence days as well as Regulations.
Statutes generally refer to the laws and regulations of every sort, every
provision of law which permits or prohibit anything.
A Statute may generally be classified with reference to its
duration, nature of
operation, object and extent of application. On the basis of duration, statutes
are classified as either
(1) Perpetual or Temporary
. It is a Perpetual Statute when no time is fixed for its
duration and such statute remains in force until its repeal, which may be
express or implied. It is perpetual in the sense that it is not obligated by efflux
of time or by non-user.
A Temporary statute is one where its duration is only
for a specified time and it expires on the expiry of the specified time unless it
is repealed earlier. The duration of temporary Statute may be extended by
fresh Statute or by exercise of power conferred under the original statute. The
expired statute may be revived by re-enacting it in similar terms or by
enacting a statute expressly saying that the expired Act is herewith revived.
(2) Classification with reference to Nature of Operation
(i)
Prospective statutes – A statute which operates upon acts and
transactions which have not occurred when the statutes takes effect,
that is which regulates the future is a Prospective statute.
(ii)
Retrospective statutes – Every statute takes away or impairs vested
rights acquired under the existing laws or creates a new obligation into
a new duty or attaches a new disability in respect of transactions or
considerations already passed are deemed retrospective or retroactive
statute.
(iii)
Directory statutes – A directory statute is generally affirmative in its
terms, recommends a certain act or omissions, but imposes no penalty
on non-observance of its provisions.
(iv)
Mandatory statutes – A Mandatory statute is one which compels
performance of certain acts and directs that a certain thing must be
done in a certain manner or form. A type of Mandatory Statute is the
Imperative
Statute.
Imperative
Statutes
are
often
negative
or
prohibitory in its terms and makes certain acts or omissions absolutely
necessary and subjects a contravention of its provision to a penalty.
When the statute is passed for the purposes of enabling something to
be done and prescribes the formalities which are to attend its
performance, those prescribed formalities which are essential to the
validity of the things which are done are called imperative or absolute,
but those which are not essential and may be disregarded without
invalidating the things to be done are called directory statutes.
Imperative Statutes must be strictly observed. Directory Statute may be
substantially complied with.
C.
Classification with reference to Objective
(i)
Enabling statutes – These statutes are which enlarges the common law
where it is too strict or narrow. It is a statute which makes it lawful to do
something which would not otherwise be lawful.
(ii) Disabling statutes – These statutes restrict or cut down rights existing at
common law.
(iii)
Permissive statute – This type of statute allows certain acts to be done
without commanding that they be performed.
(iv)
Prohibitory statute – This type of statute which forbids the doing of
certain things.
(v)
Codifying Statute – It presents and orderly and authoritative statement
of the leading rules of law on a given subject, whether those rules are to
be found in statute law or common law.
(vi)
Consolidating statute – The purpose of consolidating statute is to
present the whole body of statutory law on a subject in complete form
repeating the former statute.
(vii) Curative or validating Statute
- It is passed to cure defects in the prior
law and too validate legal proceedings, instruments or acts of public
and private administrative powers which in the absence of such statute
would be void for want of conformity with existing legal requirements
but which would have been valid if the statute has so provided at the
time of enacting.
(viii) Repealing Statute – A statute which either expressly or by necessary
implication revokes or terminates another statute is a repealing statute.
(ix)
Amending Statute – It is a Statute which makes and addition to or
operates to change the original law so as to effect an improvement or
more effectively carry out the purpose for which the original law was
passed.
Common Essentials of a Statute:
A. Title of the Act:
In general, the title's purpose is "to limit the subject matter
of the Act to one general subject and to afford reasonably definite
information to the members of the Assembly and the people as to the
subject matter dealt with by the Act. Title may also include as to the
amendments or repealment of a specified provision.
B. Enacting Clause:
C. Definition Clause:
D. Emergency Clause:
E. Penalty Provisions
F. Effective Dates:
G. Constitution of Competent Authority:
H. Referendum Clause:
I. Dispute Resolution:
J. Termination or Expiration dates:
REPORTS
The "law" on a given subject is found not only in statutes and regulations but also
in the judicial decisions of courts. Finding cases which are "on point"--i.e., which
have a similar fact situation and legal issue--can be challenging and, on occasion,
a more time-consuming and circuitous process than locating statutory
provisions. The theory of binding force of precedent is firmly established in
England. A judge is bound to follow the decision of any court recognized as
competent to bind him, and it becomes his duty to administer the law as
declared by such a court. The system of precedent has been a powerful factor in
the development of the common law in England. Because of common law
heritage, the binding force of precedents has also been firmly established in
India, meaning thereby that the judgments delivered by the superior courts are
as much the law of the country as legislative enactments.
The theory of precedent brings in its wake the system of law reporting as its
necessary concomitant. Publication of decisions is a condition necessary for the
theory of precedent to operate;there must be reliable reports of cases. If the
cases are to be binding, then there must be precise records of what they lay
down, and it is only then that the doctrine of
stare decisis
can function
meaningfully.
The Indian Law Reports Act of 1875 authorizes the publication of the reports of
the cases decided by the high courts in the official report and provides that, “No
Court shall be bound to hear cited, or shall receive or treat as an authority
binding on it the report of any case decided by any of the said High Courts on or
after the said day other than a report published under the authority of the
Governor General in Council.”
Though the Law Reports Act gave authenticity to the official reports, it did not
take away the authority of unpublished precedents or give a published decision a
higher authority than that possessed by it as a precedent. A Supreme Court or
high court decision is authoritative by itself, not because it is reported. The
practice of citing unreported decisions thus led to the publication of a large
number of private reports. The unusual delay in publication of official reports
and incompleteness of the official reports made the private reports thrive,
resulting in a number of law reports in India being published by nonofficial
agencies on a commercial basis.
In India, there are more than 300 law reports published in the country. They
cover a very wide range and are published from various points of view. A “union
catalogue” compiled by the Supreme Court Judges’ Library of the current law
journals subscribed by the libraries of various high court and Supreme Court
judges (appended at the end of this paper) gives details of various law reports
published from India. It also gives details of various foreign law reports
submitted by law libraries in India, which gives an idea of the “foreign journals”
being used by the legal fraternity in the country.
EXAMPLES : SUPREME COURT CASES, SUPREME COURTS REPORTS, ALL
INDIA REPORTER, BOMBAY LAW REPORTS, ETC.
Reports IN INDIA IS NOT LIMITED TO CASE LAWS BUT ALSO
FOLLWING CATEGORIES OF REPORTING:
INCLUDES
a) Law Commission Reports
The Law Commission of India was started in 1955 by an executive order. In
order to confront new situations and problems which arise from time to time
and to amend law which calls for amendment, a body like the Law
Commission is absolutely essential. This is because it is a body which is not
committed to any political party and which consists of judges and lawyers,
who are expert in the field and who would bring to bear upon the problems
purely judicial and impartial minds. As the parliament is very busy in
daytoday debates and discussions, its members do not have the necessary
time to consider legal changes required to meet the new situations and
problems in a constructive manner. For that the Law Commission may be
able to serve its purpose effectively. The function of the law commission is to
study the existing laws, suggest amendments to the same if necessary, and
to make recommendations for enacting new laws. The recommendations for
amendment of the existing laws are made by the commission either
suo motu
or
on the request of the government. Presently, the eighteenth Law Commission is
in existence. The Law Commission in India has brought out 207 scholarly
reports to date on various legal aspects. The full text for each report is available
on the commission’s website. Law Commission Reports, while proposing any
new enactment or proposing any amendment in the existing statute, review the
legal position on that particular aspect in India as well as in other countries.
Hence Law Commission reports are treated as useful tools for ascertaining the
legislative intent.
b)
Committee/Commission Reports
: he Commission of Inquiry Act, 1952 is an
Act to provide for the appointment of Commissions of Inquiry and for vesting
such Commissions with certain powers.
Section 3 of this Act provides for appointment for Commission. It lays down that
the appropriate Government may, if it is of opinion that it is necessary so to do,
and shall, if a resolution in this behalf is passed by the House of the People or, as
the case may be, the Legislative Assembly of the State, by notification in the
Official Gazette, appoint a Commission of Inquiry for the purpose of(i) Making an inquiry into any definite matter of public importance, and
(ii) Performing such functions and within such time as may be specified in the
notification.
And the commission so appointed shall make the inquiry and perform the
functions accordingly.
The Commission consists of one or more members appointed by the appropriate
Government and where the Commission consists of more than one member, one
of them may be appointed as the Chairman thereof.
“The appropriate Government shall cause to be laid before the House of the
People or, as the case may be, the Legislative Assembly of the State, the report, if
any, of the Commission on the inquiry made by the Commission under
sub-section (1), together with a memorandum of the action taken thereon, within
a period of 6 months of the submission of the report by the Commission to the
appropriate Government.”
Sec. 3 (4) is conceived as a check upon the Government inaction or deliberate
suppression of the report before the Parliament/Legislative Assembly along with
the Memorandum of action taken by it thereon.
Section 4 deals with the powers of the Commission. It lays down that the
Commission shall have the powers of civil courts while trying a suit under the
Code of Civil Procedure in respect of the following matters, namely(a) Summoning and enforcing the attendance of any person, and examining him
on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court of office;
(e) Issuing commissions for the examination of witnesses or documents; and
(f) Any other matter which may be prescribed.
c) Annual Reports:
d) Parliamentary Committee Reports:
The work done by the Parliament in modern times is not only varied in nature,
but considerable in volume. The time at its disposal is limited. It cannot,
therefore, give close consideration to all the legislative and other matters that
come up before it. A good deal of its business is, therefore, transacted by what
are called the Parliamentary Committees
Ad hoc and Standing Committees
Parliamentary Committees are of two kinds:
Ad hoc
Committees and the
Standing Committees. A
d hoc
Committees are appointed for a specific purpose
and they cease to exist when they finish the task assigned to them and submit a
report. Whereas standing committee is a permanent body.
Select and Joint Committees
When a Bill comes up before a House for general discussion,it is open to that
House to refer it to a Select Committee of the House or a Joint Committee of the
two Houses. A motion has to be moved and adopted to this effect in the House in
which the Bill comes up for consideration. In case the motion adopted is for
reference of the Bill to a Joint Committee, the decision is conveyed to the other
House requesting them to nominate members of the other House to serve on the
Committee. The Select or Joint Committee considers the Bill clause by clause
just as the two Houses do. Amendments can be moved to various clauses by
members of the Committee. The Committee can also take evidence of
associations, public bodies or experts who are interested in the Bill. After the Bill
has thus been considered the Committee submits its report to the House.
Members who do not agree with the majority report may append their minutes
of dissent to the report.
Law Journal As Legal Material
Law review or journal articles are another great secondary source for legal
research, valuable for the depth in which they analyze and critique legal topics,
as well as their extensive references to other sources, including primary
sources.
Law reviews are scholarly publications, usually edited by law students
in conjunction with faculty members. They contain both lengthy articles and
shorter essays by professors and lawyers, as well as comments, notes, or
developments in the law written by students. L
aw review articles often focus on
new or emerging areas of law and they can offer more critical commentary
than a legal encyclopedia.
Some law reviews are dedicated to a particular topic,
such as gender and the law or environmental law, and will include in their
contents the proceedings of a wide range of panels and symposia on timely legal
issues.
Categories of Journals
➢ Academic Journals (containing articles only)
➢ Law Reports (containing only the full text of case laws)
➢
Hybrid, i.e. a combination of both articles and case laws. Some
of the journals also publish statutory materials such as acts, amendments,
rules, etc.
➢
Only legislative materials such as acts, rules, notifications, etc.
Important Academic Law Journals
1 Annual Survey of Indian Law New Delhi: ILI
2 Journal Indian Law Institute
3 Journal of Constitutional & Parliamentary Studies
4 Indian Journal of International Law
5 Indian Bar Review
6 National Law School of Indian Review
7 Journal of Human Rights (NHRC)
Article 38 of VCLT as well as Art. 36 of ICJ recognized law journals and
reviews as a source of laws.
MANUAL
Comprehensive
and step-by-step guide to a particular
topic
for both
beginners and practitioners that also
serves
as a
reference book
. A manual
details what is given and what is r
equired
, explains how to put the
presented
information
into p
ractice
, and
instructs
how to solve p
roblems
as they
occur. This term is commonly used interchangeably with
handbook
.
Manual Generally includes:
●
Annotated Text of Act & Rules framed thereunder
●
Text of Relevant Rules given along with text of relevant section of Act 2013
●
Annotation under each section shows
●
o
Text of relevant rules framed under the relevant section
o
Reference to relevant Forms prescribed
o
Exemptions
o
Gist of relevant circulars and notifications
o
Date of enforcement of provision
o
Corresponding provision
o
Words & Phrases judicially noticed
o
Allied Laws referred to in the provision
Text of Circulars & Notifications issued Text of prescribed Forms
Manual is a
Secondary sources
offer analysis, commentary, or a
restatement of primary law and are used to help locate and explain primary
sources of law. Secondary sources may influence a legal decision but do not
have the controlling or binding authority of primary sources.
1.
AIR Manual: Civil and Criminal, Edn. 6, Vol. 110, 1314Nagpur:AIR
Pvt. Ltd., 2004
2.
Encyclopedia of Important Central Acts & Rules, Vols. 20, Delhi:
Universal Law Publishers, 2004, Reprint 2005
BILL
A
bill
is proposed legislation under consideration by a
legislature
. A bill
does not become law until it is passed by the legislature and, in most cases,
approved by the e
xecutive
. Once a bill has been enacted into law, it is
called an
Act
or a
statute
.
A Bill is the draft of a legislative proposal. It has to pass through various
stages before it becomes an Act of Parliament.
India
is a democracy having quasi-federal structure of Government. Laws are
made
separately
at
different
levels,
by
the
Union
Government
(i.e.
The
Government of India
/
Federal Government
/ Central 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
. The legislative procedure for states with bicameral legislatures requires
that proposed bills be passed, first in the state's Lower House or the
Vidhan
Sabha
and then in the Upper House or the
State Vidhan Parishad
. For states with
unicameral legislatures, laws and bills need to be passed only in the
state's
Vidhan Sabha
, for they don't have a
Vidhan Parishad
. Overall this is
similar to the 'House of Commons' and the 'House of Lords' in UK.
Difference between a Bill and an Act[
edit
]
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
. As soon as the bill has been framed, it has to be published
in the news papers 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
or private members. The former are called government bills and
the latter,
private members' bills
. Bills may also be classified as p
ublic
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. The
Orphanages and Charitable Homes Bill
or
the
Muslim Waqfs Bills
are examples of private bills.
How a Bill becomes an Act in Parliament[
edit
]
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
[
edit
]
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.
Publication in the official Gazette
After a Bill has been introduced, it is published in T
he Gazette of India
. Even
before introduction, a Bill might, with the permission of the Speaker, be
published in the
Gazette
. In such cases, leave to introduce the Bill in the House is
not asked for and the Bill is straightaway introduced.
Reference of Bill to a 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 S
tanding 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
straightaway take it into consideration.
If a Bill is referred to a Select/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/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 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.
Bill in the other House
After the Bill is passed by one House, 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 shall
be that the two houses have disagreed. The other House may keep a money bill
for 14 days and an ordinary Bill for three 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.
Joint session of both Houses
In case of a deadlock between the two houses or in a case where more than six
months lapse in the other house, the P
resident
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. Until now,
only
three
bills:
the
Dowry
Prohibition Act
(1961), the B
anking 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, it is sent to the
President
for his approval. 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,
with his recommendations. 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 council of ministers.
Following position can be arrived by reading article 111 of Indian constitution
with article 74. The president may also effectively withhold his assent as per his
own discretion, which is known as
pocket veto
. The pocket veto is not written in
the constitution and has only been exercised once by President Z
ail 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. In the case of a
Constitutional Amendment Bill
, the President
is bound to give his assent. In case of the State Governments, the consent of the
State's Governor has to be obtained.
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 is later
approved by the Parliament), or a specific date is mentioned in the Act itself
(mostly in 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.
Money Bills
Bills which exclusively contain provisions for imposition and abolition of taxes,
for appropriation of moneys out of the Consolidated Fund, etc., are certified as
Money Bills. Money Bills can be introduced only in Lok Sabha. The Rajya Sabha
cannot make amendments to a Money Bill passed by the Lok Sabha and sent to it.
It can, however, recommend amendments in a Money Bill, but must return all
Money Bills to Lok Sabha within fourteen days from the date of their receipt. The
Lok Sabha can choose to accept or reject any or all of the recommendations of
the Rajya Sabha with regard to a Money Bill. If Lok Sabha accepts any of the
recommendations of Rajya Sabha, the Money Bill is deemed to have been passed
by both Houses with amendments recommended by Rajya Sabha and accepted
by Lok Sabha. If Lok Sabha does not accept any of the recommendations of Rajya
Sabha, the Money Bill is deemed to have been passed by both Houses in the form
in which it was passed by Lok Sabha without any of the amendments
recommended by Rajya Sabha. If a Money Bill passed by Lok Sabha and
transmitted to Rajya Sabha for its recommendations is not returned to Lok Sabha
within the said period of fourteen days, it is deemed to have been passed by both
Houses at the expiration of the said period in the form in which it was passed by
Lok Sabha.
