Basics of Legislation

Notes
Question: Draw the tree of kinds of Legislation. Describe with illustration, the
Judicial and Executive Legislations and also mention in brief the merits and
demerits of the Executive Legislation. (2017)
Or
Can Parliament of India transfer its law making power to any other authority? In
the light of constitutional provisions and decided cases, discuss in detail. (2017)
Answer: According to Salmond, legislation is of two type:
1) Supreme Legislation
2) Sub-ordinate Legislation or Delegated Legislation

Legislation

Supreme Sub-ordinate
Legislation Legislation

Colonial Legislation Judicial Legislation Autonomous Legislation

Executive Legislation
Municipal Legislation

Supreme Legislation
Supreme Legislation is that which proceeds from sovereign power in the State.
It cannot be repealed, annulled or controlled by any other legislative authority.
In England, only the government can make the laws which are subjected to the
parliamentary control.

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 Sub-ordinate Legislation (Delegated legislation)
Delegated Legislation is process by which the legislature can transfer its powers
to the executive authority to make laws in order to implement and administer
the requirements of that primary legislation.
When the Parliament or State Legislature transfers its law making powers to the
executive then it is known as delegated or sub-ordinate legislation.
(The Supreme Legislation cannot be amended/ annulled by any authority other
than the one which created it)
(In Britain, the Supreme Legislation is Parliament, but in India, Supreme
Legislation is the Constitution)
Example
Article 123, 357 and 213 empowers the President and Governors to promulgate
order and ordinances. (These are the examples of Executive Legislation)
• The Executive Legislation by the President and Governor has the same
binding value as that of law by Parliament,
• There is no provision in the Constitution that allows the Parliament to transfer
its Powers but there is also no provision that prevents it.

Justice Mukherjea rightly says, “Delegated Legislation is an expression which

covers a multitude of confusion. It is an excuse for the legislature, a shield for
the administration and a provocation to the constitutional jurists”.
According to Jain and Jain in the book Principles of Administrative Law (2014),
the term delegated legislation is used in two sense:
(I) Exercise by a sub-ordinate agency of the legislative powers delegated to it by
the legislatures.
(II) The subsidiary rules themselves which are made by sub-ordinate authority
in pursuance of the power conferred on it by the legislature.

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Example:
The Essential Commodities Act 1955 enumerates certain commodities as
‘essential commodities’ under the Act and it authorized the central government
to declare any other commodity as ‘essential commodity’.
Re Delhi Laws Act AIR 1951 SC 332
To what extent the Parliament can transfer its powers?
The hon’ble Supreme Court held that Parliament cannot transfer its essential
legislative functions.
Until the Parliament has control over the law making power of executive we can
say that essential functions are not transferred.
What functions the Parliament has to perform constitutionally can be said to be
essential functions.
Panama Refinery Co. v Ryans (1935) 233 US 338 (Hot Oil Case)
In this case the US Supreme Court said that Parliament can transfer its power, is
subject to the condition that the Parliament has specified the policy and
standards on that particular issue.
Bagla v State of Madhya Pradesh AIR 1954 SC 465
The hon’ble Supreme Court observed that essential legislative functions consist
in determination of policy and formally enacting that policy into binding rules
of conduct.
Banarasi Das v State of Madhya Pradesh AIR 1952 SC 909
The hon’ble Supreme Court observed that executive authority can be authorized
to modify either existing or future laws but not any essential features.
Executive can never be authorized to modify the legislation. If such is done that
is called Henry VIII clause.
Supreme Court in various cases has laid down the principle that uncontrolled
and unguided powers cannot be transferred to the executive and discretion used
in this connection must not go:

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1. Beyond the permitted limit of Parent Act
2. Run counter to it
3. Change the form or identity or policy of the Parent Act. (The act or law
through which the powers are transferred to the executive)
Quary Owners Association v State of Bihar AIR 2000 SC 2870
The hon’ble Supreme Court observed that if the policy is laid down in the
legislation delegating powers to the government, it cannot be said to be arbitrary
or excessive.
The accountability of the State government to the state legislature is additional
check against arbitrary exercise of Power.
Delegated legislation is becoming more and more important in modern times.
Types of Subordinate Legislation
Salmond refers to five kinds of subordinate legislation.
1. Colonial Legislation
2. Executive Legislation
3. Judicial Legislation
4. Municipal Legislation
5. Autonomous Legislation
Colonial Legislation
The powers of self-government entrusted to the colonies and other dependencies
of the Crown are subject to the control of the imperial legislature. The
Parliament at Westminister may repeal, alter or supersede any colonial
enactment. However, it has been held that for the purpose of the maxim
Delegatus non potest delegare, a colonial legislature is not a mere delegate of
the imperial Parliament and hence can delegate its legislative powers to other
bodies that in turn are dependent upon it.

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However, it is to be noted that after the passing of the Statute of Westminister of
1931, the dominion legislatures have been given the power to make any law
they please.
Executive Legislation
The main function of the executive is to enforce laws, but in certain cases the
power of making rules is delegated to the various departments of the
government. This is technically called delegated legislation.
The essential function of the executive is to conduct the administrative
departments of the State, but it combines with this certain subordinate
legislative powers, which have been expressly delegated to it by Parliament or
pertain to it by the common law. For Example, Statutes frequently entrust to
some department of the executive government the duty of supplementing the
statutory provisions by the issue of more detailed regulations bearing on the
same matter. So it is part of the prerogative of the Crown at common law to
make laws for the government of territories acquired by conquest or cession,
and not yet possessed of representative local legislatures.
Judicial Legislation
The Judiciary possesses certain delegated legislative powers. The superior
courts have the power of making rules for the regulation of their own procedure.
This is judicial legislation in the true sense of the term, differing in this respect
from the so-called legislative action of the courts in creating new law by way of
precedent.
Municipal Legislation
Municipal authorities are entrusted by the law with limited and subordinate
powers of establishing special law for the districts under their control. The
enactments so authorized are termed by-laws and this form of legislation may
be distinguished as municipal.
The range of subjects dealt with is immense.

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Example – town planning scheme, advertisements, traffic, buildings,
cleanliness, burials etc.
Autonomous Legislation
The State may allow private persons like Universities, Railway Company etc. to
make bye-laws which are recognized and enforced by law Courts. Such
legislation usually called autonomic.
Example-
• The Railway Company may make by-laws for regulation of its undertaking.
Likewise a University may make statutes for the government of its members.
• Bar Council of India
• University Grants Commission
Impermissible Limits of Law
Essential legislative functions of the legislature cannot be transferred to the
executive.
1) Repeal of Law: Power to repeal law cannot be transferred to the legislature
(Henry VIII clause: Article 372 of Constitution of India)
2) Retrospective operations: No law can be made by the executive that is
applicable from the past date, only legislature can do this.
3) Future Acts: Powers to make laws in the future cannot be given.
4) Ouster of Jurisdiction of Courts: To decide the structure of the courts can
only be decided by legislature and not executive.
Permissible Limits
1) Commencement: Date from which law is enforced
2) Supplying details: Details can be filled by the executive for a policy defined
by the legislature.
3) Inclusion:
4) Exclusion:
5) Framing of Rules:

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Question: Difference between Delegated legislation and conditional legislation.
Explain.
Answer: Hamdard Dawakhana v Union of India AIR 1960 SC 554
The distinction between Conditional legislation and Delegated legislation is this
that in the former the delegated power is that of determining when a legislative
declared rule of conduct shall become effective and later involves the delegation
of rule-making power which constitutionally may be exercised by the
administered agent.
In number of cases Hon’ble Supreme Court has differentiated between
conditional legislation and delegated legislation. It includes the following:
1. The time when the provisions should be enforced.
2. The period during which it is to be implemented or suspended
3. The place where it should be applied.

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Question: Write a detailed note on the control mechanism over the Delegated
legislation.
Answer: Control Mechanism
There are three ways to control the delegated legislation:
1. Procedural Control
2. Parliamentary Control
3. Judicial Control
Procedural Control
The procedure can be mentioned in the Parent act which would control the
executive. There are three ways through which delegated powers conferred on
the Executive can be control via procedural control:
(i) Prior consultation of interests (those who are likely to be affected)
Example:
1. Representation of People’s Act, 1950
2. Salaries and Allowances of MP Act, 1954
(ii) Rules made by government are fulfil the purpose of act and in furtherance
with the Act. The Government should prove that rules made are in accordance
with the
(iii) When rules and regulations are formed, they should be published.
Harla v state of Rajasthan AIR 1951 SC 467
The hon’ble Supreme Court held that unless the Act is published, it would not
like to take the act in cognizance. Publicity and accessibility are the
requirements of the Rule of law, hence they must be complied with.
General Clauses Act, 1897 says:
• Publication for the affected interests
• Sufficiency of Publication: Publication should be in a manner as a competent
authority deems fit or as prescribed by the Government.

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• Notice: When will the draft be considered and by which date, suggestion and
objection will be considered. (when this draft is going to be considered)
• Consideration of objection and suggestion must be considered by the
authority.
• Publication of rules and regulations in the official Gazette of India (This is the
conclusive proof of rules & regulations and they became binding)

Parliamentary Control
Parliament can control the law making powers of the executive in three ways:
1) Through Debate and Discussions
2) Through Laying Techniques
3) Through Parliamentary Committees via scrutnization.
Debate and Discussions
• Debate and discussions on the suitability of the draft in Parliament can take
place.
Laying Techniques
• Laying technique for control is specified in the Parent Act.
• There are six laying techniques:
a) Laid with no further delegation
Here, sub-ordinate Legislation having been passed by the administrative
agencies are required to be laid before parliament. Members of Parliament are
not empowered to move its amendments nor is the Government required to
obtain a resolution before it becomes operative.
Example- Agricultural Act, 1947.
b) Laid and made subject to annulment within 40 days
Sometimes the Parent Act provides that the regulations made by the
Government should be laid before the house as soon as they are made and the
Parent Act further provides that if either house within a period of 40 days after

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 the regulations are so placed before it, resolves that the regulations be
annulled. The regulations shall cease to have any effect.
c) Laid and made subject to affirmative resolution
(I) Sub-ordinate legislation shall be of no effect unless it is approved by
resolution of each House of Parliament.
(II) Sub-ordinate legislation may cease to have any effect on the expiration of
any stated period unless sometime before the expiration of that period, it has
been approved by resolution of each House of Parliament.
d) Laid in draft and made a subject to affirmative resolution
A draft of any order or regulation is presented to each house of Parliament and
will not become effective unless approved by resolution of each house of
Parliament.
e) Laid in draft and made subject to annulment within 40 days
A draft of an order or regulation is placed before each house of Parliament and
if house does not annul it within a period of 40 days, it is regarded to have
been approved by the houses of Parliament.
f) Laying before it, becomes operative
Under this category, an order or regulation will be laid before the house of
Parliament before it comes into operation.
Parliamentary Committees
To scrutinize the delegated legislation, there are following committees:
a) Committee on sub-ordinate legislation of the Lok Sabha
➢ Constituted in 1953
➢ 15 members
➢ Consist of all political parties in their proportion in the House.
➢ Chairperson: Member of opposition party is the chairperson of Committee.
➢ No Minister can be the part of the Committee.
b) Committee on sub-ordinate legislation of the Rajya Sabha
➢ Constituted in 1964
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 ➢ 15 members
➢ Consist of all political parties in their proportion in the House.
➢ Chairperson: Chairperson of the Committee is appointed by the chairman of
Raya Sabha.
➢ Ministers cannot be the part of the Committee.
Functions of Parliament Committees
The functions of Parliamentary Committees are (Committee on sub-ordinate
legislation of the Lok Sabha and Committee on sub-ordinate legislation of the
Rajya Sabha):
1) Whether the delegated legislation is in accord with the general objects of the
Constitution or the Act, pursuant to which it is made.
2) Whether matter can be dealt more properly with an Act of Parliament.
3) Whether it contains imposition of any tax.
4) Whether it bars the jurisdiction of the Courts.
5) Whether it gives retrospective effect to any provision (as per the Constitution
or the Parent Act)
6) Whether it involves the expenditure from the consolidated fund of India or
public revenues.
7) Whether it is a case of unusual and unexpected use of powers, not pursuant to
the Constitution or the Parent Act.
8) Whether there is any unjustifiable delay in publication or laying it before the
Parliament.
9) Whether for any reason or purpose it calls for any explanation or elucidation.

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 Judicial Control
Article 32,226 and 227 give very wide powers to the judiciary to control the
executive when it goes beyond its powers or there is a misuse of powers.
Powers in Article 32 and Article 226 are exceptional powers and should be
treated as different from other powers in the other provisions conferred on the
Courts.
The person who complains that his fundamental rights are violated, is at liberty
to the High Court and Supreme Court. No other person may do so. This right is
also with corporate entities unless the language of the provision bars them to do
so.
Example- Right to Life and Personal Liberty
One cannot go to High Court or Supreme Court for the violation of someone
other’s Fundamental Rights.
If someone is imprisoned, he cannot come to count to appeal. A person who is a
close relative of the prisoner can file a case.
Example- Mother, Father, Son, Daughter and Brother.
A total stranger cannot file a case.
One who is a social worker can approach the High Court and Supreme Court for
those who cannot do so for themselves due to their poverty, backwardness and
ignorance of law.
Under the PIL concept, when public interest is involved, one can file a writ on
the behalf of some people. In these ways, the Locus Standi conditions were
relaxed.
The Supreme Court observed that if PIL is not allowed then it would be denial
of justice the downtrodden and the poor. It would be disastrous for the public.
Quo Warranto can be filed by anyone. For other writs you have to prove that
you have been affected.
Certain Fundamental Rights have been conferred on the citizens of India only.

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Example- Article 19
Cases of Article 32 arise not only where the Fundamental Rights have been
infringed but also there where there is a serious threat of violation of
Fundamental Rights. But here a larger public interest should be involved in
second case.
Rama Rao v State of Andhra Pradesh AIR 1961 SC 564
An order under statute violates a person’s Fundamental Rights, to challenge the
constitutionality of that statute merely on the ground that he has applied for an
order in favour under the statute.
One can challenge a provision of the statute that violates the Fundamental
Rights even though another provision of that statute is in his favor and he has
had benefit from that provision. Such a plea from executive will not be
accepted.
Appellate Power should not be exercised by the Supreme Court and the High
Court under Article 32 and Article 226 of the Constitution of India.
D.C. Wadhwa v State of Bihar AIR 1987 SC 579
The hon’ble Supreme Court held that the Supreme Court shall have power to
issue directions or orders or writs including writs in the nature of Habeas
Corpus, Mandamus, Prohibition, Certiorari (sister writs) and Quo Warranto
whichever may be appropriate for the enforcement of any of the rights conferred
by Part III of the Constitution of India.
• Supreme Court cannot issue Prohibition writ to High Court.
• Appeal of Article 226 cannot go to Supreme Court under Article 32.
• Appellate or review powers cannot be exercised by the Supreme Court
under Article 32.
• Writ cannot be issued against a private individual.
• Only Habeas Corpus may be issued against private individual.
• No restrictions can be imposed on the Powers of the High Courts.

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 Sohan Lal v Union of India AIR 1957 SC 529
The hon’ble Supreme Court held that under Article 226 writ can be issued
against any person who has some statutory or public duty to perform and not
against a private individual who has no statutory or legal existence.
Mohammad Ikram v State of Uttar Pradesh AIR 1964 SC 1625
The hon’ble Supreme Court held that the writ of Habeas Corpus can be issued
not only for release from detention of state but also for release from private
detention.
Rohtas Industries Pvt Ltd v Rohtas Industries Staff Union AIR 1976
SC 210
The hon’ble Supreme Court held that the remedy under Article 226 is
extraordinary, wide and expansive so it can affect any person even if private
individual and be available for any other purpose even one for which another
remedy may exist.
Writs against private individual are issued in exceptional and rare
circumstances.

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Question: How far does an alternative remedy bar the jurisdiction of the High
Court?
Answer: Article 226 of the Constitution of India refers to power of High
Court's to issue certain writs within its jurisdiction. Writ remedies are
prerogative remedies. Before exercising this extraordinary jurisdiction under
the Constitution, the high court will consider whether an alternative efficacious
remedy is available to the petitioner. Normally, if any other alternative remedy
is available, the high court may refuse to grant relief by directing the party to
the appropriate forum, to obtain appropriate relief. The bar of an alternative
remedy is a self-imposed rule for entertaining writ petitions, and not one of
jurisdiction. It is a matter of policy, practice, and discretion rather than a rule of
law. Therefore, in exceptional cases, a writ can be issued in spite of the
availability of alternative remedy. There are at least three contingencies where
the Supreme Court has consistently held that the existence of an alternate
remedy does not bar the high court from exercising its extraordinary
jurisdiction. They are:

1) Where the writ petition has been filed for the enforcement of any of the
fundamental rights; or
2) Where there has been a violation of a principle of natural justice; or
3) Where the order or proceedings are wholly without jurisdiction or
the vires of an Act have been challenged

Union of India v Verma AIR 1957 SC 882

The hon’ble Supreme Court held that the remedy under Article 226 being
general discretionary, the High Court may refuse to grant it when there exists an
alternative remedy, equally efficient and adequate.
Rashid v Municipal Board AIR 1954 SC 207
The hon’ble Supreme Court held that the High Court may refuse to grant relief
under Article 226 where there is alternate remedy equally efficient and adequate
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unless there are grounds thereof. (Unless it is proved that alternate remedy is
inefficient)
Conditions when alternate remedy would have much credibility:
1) Fundamental Rights’ violation
2) Constitutional Rights’ violation
3) Principle of Natural Justice is violated
Sohan Lal v Union of India AIR 1957 SC 529
The hon’ble Supreme Court held that whether the alternate remedy is equally
efficient and adequate is question of fact to be decided in each case, the onus
being on the applicant to show that it is not adequate.
(I) Where Petitioner may get an adequate relief by ordinary action of law (IPC,
CrPC or CPC), remedy may be refused.
(II) For the enforcement of contract and compensation, the remedy may be
refused.
(III) Where the Petitioner has already instituted a case, remedy may be refused.
(IV) Where matter is time barred. (In exceptional cases it may be allowed)
Veerappa v Raman 1952 SCR 583
The hon’ble Supreme Court held that if the right and liability is created by a
statute and it prescribes a remedy or procedure for enforcing it (Example-
Motors Vehicles Act, 1988), remedy may be refused.
Venkateshwar v Ram Chandra
The hon’ble Supreme Court held that an alternative remedy is not an absolute
bar to the relief under Article 226.

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Question: Write a detailed note on Law making procedure in India.
Answer: India is a democracy having a Federal structure of government. Laws
are made separately at different levels by the Central Government, State
Government and Local Municipal Councils.
The Legislative procedure in India for the Union Government requires that
proposed bills pass through the two legislative houses of the Parliament of
India, i.e. the Lok Sabha and the Rajya Sabha.
The Legislative procedure for the states with bicameral legislatures requires that
proposed bill be passed in the state’s Lower House or the Vidhan Sabha and it is
not mandatory to be passed in the Upper House or the Vidhan Parishad. For
states with unicameral legislatures, laws and bills need to be passed only in the
state’s Vidhan Sabha. (For them who don’t have a Vidhan Parishad)
Law Making Procedure
Legislation or law-making is deemed to be the predominant function of the
Parliament. All legislative proposals are initiated in the Parliament in the form
of Bills. A Bill is the draft of a legislative proposal which can be introduced in
either House of Parliament. Bills can be categorized into two categories:
1. Government Bills
2. Private Members’ Bills
Government Bills
• Government Bills are drafted by Government draftsman and introduced in
either House of Parliament by the minister concerned.
• A Minister is required to give seven days’ notice of a motion for leave to
introduce the bill.
• A bill when it is introduced in the House is accompanied by a Statement of
Objects and Reasons, the memorandum regarding delegation of legislative
power and the financial memorandum wherever necessary under the rules.

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 • A bill seeking to replace an Ordinance is also accompanied by a statement
explaining the circumstances which had necessitated immediate legislation by
Ordinance.
• Normally, copies of the Bill are made available to members at least two days
before the date on which it is proposed to be introduced.
• A Bill has to pass through different stages in the Parliament before it
becomes an Act. There are three reading stages through which a bill has to
pass in one House of the Parliament. After that, it is sent to the President for
his assent which completes the legislative process and a Bill becomes an Act.
(The procedure is similar for the Legislative Assemblies of the states)

A) First Reading Stage or Introduction Stage

In the first reading stage, a motion for leave of the House to introduce a Bill is
moved and the Bill is introduced. There is usually no discussion at this stage.
But If the motion for leave to introduce a Bill is opposed, the Speaker may
permit brief explanatory statements from the member who opposes the motion
and the Minister or member who moved the motion. Where the 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 and thereafter put the motion to the vote of the House.
However, the introduction of a Finance Bill or an Appropriation Bill cannot be
opposed.

Publication in the official Gazette

After a Bill has been introduced, it is published in the Gazette of India.
However, sometimes the Speaker may order publication of the Bill in the
Gazette even before the introduction. In such cases, leave to introduce the Bill
in the House is not asked for and the Bill is straight away introduced.
(Money/Appropriation Bills and financial bills can be introduced only in Lok
Sabha per Articles 109, 110 and 117. Speaker of Lok Sabha decides whether a

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bill is Money Bill or not. Chairman of Rajya Sabha decides whether a bill is
finance bill or not when the bill is introduced in the Rajya Sabha)

B) Second Reading Stage or Consideration Stage

The Second Reading is the consideration stage of the Bill. This consists of two
steps:

1. The first stage involves general discussion on the Bill as a whole where the
principle underlying the Bill is discussed and not the details of the Bill. At this
stage, it is open to the House to refer the Bill either to a Select Committee of
the House or to a Joint Committee of the two Houses or circulate it for the
purpose of eliciting opinion thereon or to straight away take it into
consideration. However, a Money Bill cannot be referred to a Joint Committee.

(If a Bill is referred to a Select or Joint Committee, the Committee considers

the Bill clause-by-clause just as the House does. Amendments can be moved to
the various clauses by members of the Committee. The Committee can also
take evidence of associations, public bodies or experts who are interested in the
measure.)

After the report of the Select committee or Joint Committee on the Bill has
been presented to the House, the Minister or member-in-charge of the Bill may
move a motion that the Bill as reported by the Select/Joint Committee, be taken
into consideration. The scope of the debate is confined to the Bill as reported
by the Committee and the principle of the Bill is not open to discussion again,
because the House, in effect, commits itself to the principle of the Bill when a
motion to refer the Bill to a Committee is adopted.

2. The second stage of the Second Reading starts after the motion that the Bill
or the Bill as reported by Select/Joint Committee, be taken into consideration
has been adopted and the Bill is taken up for the consideration clause by
clause. Each clause is placed before the House separately for the discussion. At

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 this stage, amendments to a clause can also be moved and discussed. 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
one, the Enacting Formula, Preamble and the Long Title of the Bill have been
adopted by the House, the Second Reading is deemed to be over.

C) Third Reading Stage

The Minister or the member-in-charge may move that the Bill be passed. This
stage is known as the Third Reading of the Bill. At this stage, the discussion is
confined to arguments either in support of the Bill or rejection of the Bill
without referring to the details. 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 required. 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. The Bill is passed
after the motion that the Bill be passed is adopted by the House.
After the Bill has been passed by the originating House, it is transmitted to other
House for its concurrence. Here again, it goes through the three readings. After
the Bill has been passed it is sent to the President for his assent.
President’s approval
When a bill has been passed, it is sent to the President for his approval as per
Article 111 of the Constitution of India. The President can assent or withhold
his assent to a bill or he can return a bill, other than a money bill.

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 Private Members’ Bills
In order to provide an opportunity to the people’s representatives to express
their views on various issues of public importance and persuade the
Government to formulate programmes and policies, the rules of procedures
provide for initiation of legislation by private members.
The last two and half hours of a sitting on every alternate Friday are allotted
during a session for transaction of business relating to Private Members’ Bills,
the other Friday being devoted to private Members’ Resolutions.
There is no difference in general procedure between the Government Bills and
the Private Members’ Bills. However, there are some special features regarding
Private Members’ Bills.
• A member who wants to introduce a Bill has to give one month’s notice.
• The notice is to be accompanied by a copy of the Bill and an explanatory
Statement of Objects and Reasons.
• A financial memorandum, if necessary.
• A memorandum regarding delegated legislation, if necessary.
• President’s recommendation, if necessary.
Since 1970, no Private Member’s Bill has been passed. During 1952-70, only
14 Bills had been passed in this category that became laws.
Private Members’ Bills enables MPs to highlight legislative gaps, draw
attention to matters of national concern, and to represent public opinion in the
House. However, since the government agenda tends to dominate the legislative
business in a parliamentary system of government, private members’ business
does not get much time in Parliament’s legislative agenda.

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Question: Discuss parliamentary procedure of the: a) Ordinary bill b) Money
bill c) Constitution Amendment Bill. (2015)
Answer: All legislative proposals are initiated in the Parliament in the forms of
Bills. A Bill is the draft of a legislative proposal which can be introduced in
either House of Parliament. Bills can be categorized as:
(i) Ordinary Bills
(ii) Money Bills
(iii) Constitution Amendment Bills
Money Bills
The Constitution provided an elaborate definition of a Money Bill in Article
110. According to this Article, A Bill is deemed to be a Money Bill if it contains
only provisions dealing with all or any of the following matters relating to:
(a) the imposition, abolition, remission, alteration of any tax;
(b) the regulation or borrowing of Money by the Government;
(c) the payment of moneys into or the withdrawal of moneys from the
Consolidated or Contingency Funds of India;
(d) declaring a new item to be expenditure, charged on the Consolidated
Fund of India;
(e) Any matter incidental to any of the above matters.

A Bill shall not be deemed to be a Money Bill, by reason only that it provided
for the imposition of fines or other pecuniary penalties or for the demand or
payment of fess for licences or fees for services rendered or by reason that it
provides for the imposition, abolition, remission or alteration or regulation of
any tax by any local authority or body, for local purposes.
If any question arises whether a Bill is a Money Bill or not, the decision of the
Speaker of the House of the People is final. The Speaker is not under any
obligation to consult any one in coming to a decision, that a Bill is a Money
Bill.

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A Money Bill cannot be introduced in the Rajya Sabha. It can be introduced
only in Lok Sabha on the recommendation of the President. Houses under the
provision of Article 108.
After a Money Bill has been passed by the Lok Sabha and transmitted to the
Rajya Sabha, the Rajya Sabha shall within a period of 14 days form the date of
its receipt of the Bill return the Bill to Lok Sabha with its recommendations and
the Lok Sabha may either accept or reject all or any of the recommendations of
the Rajya Sabha.
If the Lok Sabha accepts any of the recommendations of the Rajya Sabha, the
Money Bill shall be deemed to have been passed by both Houses with the
amendments recommended by the Rajya Sabha and accepted by the Lok Sabha.
If the Lok Sabha does not accept any of the recommendations of the Rajya
Sabha, the Money Bill shall be deemed to have been passed by both Houses in
the form in which it was passed by the Lok Sabha without any of the
amendments recommended by the Rajya Sabha.
If a Money Bill passed by the Lok Sabha and transmitted to the Rajya Sabha for
its recommendations is not returned to the Lok Sabha within 14 days, it shall be
deemed to have been passed by both Houses at the expiration of the said period
of 14 days.
When a Money Bill is presented to the President for his assent, it cannot be
returned to the Houses by the President for reconsideration unlike an ordinary
Bill.
• No joint sitting for the Money Bill and Financial Bill.
• Only prior permission of president is required to introduce Money Bill
and Finance Bill.
• Money Bill can be introduced only by a minister.

23
 Constitution Amendment Bills (v. imp)
Question: Write in detail the Parliamentary procedure for passing a
Constitution Amendment Bill. (2017)
Answer: The procedure for amendment of the Constitution of India has been
laid down in Article 368 of the Constitution. The constitution does not provide
for a separate constituent body, the power to amend the constitution is vested in
the Parliament itself and a special procedure is laid down for it.
An amendment of the constitution may be initiated by introduction of a Bill in
either House of Parliament by the Government or by a private member. A
Constitution Amendment bill initiated by a private member has to be examined
and recommended for introduction in the Lok Sabha by the Committee on
Private Members’ Bills.
Articles of the Constitution have been classified into three categories for the
purpose of amendment:
1. Simple Majority
2. Special Majority
3. Special Majority as well as ratification by the legislatures of not less than
one-half of the States.
Simple Majority
Bills for amendment of the following provisions of the Constitution are passed
by both Houses of Parliament by a simple majority of members present and
voting:
(a) Admission or establishment of new States, formation of new States and
alteration of areas, boundaries or names of existing States. (Article 2, 3
and 4)
(b) Creation or abolition of Legislative Councils in the States. (Article 169)
(c) Administration and control of Scheduled Areas and Scheduled Tribes.
(Para 7 of the V schedule)

24
 (d) Administration of Tribal Areas in the States of Assam, Meghalaya,
Tripura and Mizoram. (Para 21 of the VI schedule)
These Bills are not deemed as Constitution Amendment Bills under Article 368
of the Constitution and therefore these are not called by the title “Constitution
Amendment Bills”.
Special Majority
A Bill seeking to amend any other part of the Constitution has to be passed by a
Special majority i.e. a majority of the ‘total membership’ of the House and by a
majority of not less two-thirds of the members of that House present and voting.
The expression ‘total membership’ means the total number of members,
comprising the House irrespective of whether there are vacancies or absentees
on any account.
• All the provisions other than those in Simple majority and Special majority
with fifty percent of State legislatures are under special majority.

Special Majority as well as ratification by the legislatures

of not less than one-half of the States.
A Bill seeking to amend the following provisions of the Constitution has to be
passed by a Special Majority in each House of Parliament and has also to be
ratified by the legislatures of not less one-half of the States by resolution to that
effect before the Bill is presented to the President for assent.
(a) The Election of the President (Article 54 & 55)
(b) The extent of executive power of the Union and the States (Article 73 &
162)
(c) The Supreme Court and the High Courts (Article 124, 241, chapter IV of
part V, Chapter V of part VI of the Constitution)
(d) Distribution of legislative power between the Union and the States (Chapter
I of part XI and the Seventh Schedule of the Constitution)

25
(e) Representation of States in Parliament, and
(f) The procedure for amendment of the Constitution itself. (Article 368)

• In case of any disagreement between the two Houses of Parliament on a

Constitution Amendment Bill, there cannot be joint sitting of the Houses on the
Bill as Article 368 requires each House to pass the bill by the prescribed
majority.
• Constitution Amendment Bills passed by Parliament by prescribed special
majority and where necessary, ratification by the requisite number of State
Legislatures are presented to the President under Article 368 under which the
President is bound to give his assent to such Bills.
• A Constitution Amendment Bill cannot be treated as a Money Bill or a
Financial Bill.

26
 Finance Bill
Financial Bills can be divided into two categories:
1) In the first category, Bills which inter alia contain provisions attracting
Article 117(1) of the Constitution. Like Money Bills, they can be
introduced only in Lok Sabha on the recommendation of the President.
However, such Bills can be referred to a Joint Committee of the Houses.
2) In the second category, Bills which inter alia containing provisions which
would on enactment involve expenditure from the Consolidated Fund of
India. Such Bills are categorized as Financial Bills under Article 117(3) of
the Constitution. Such Bills can be introduced in either House of
Parliament. However, recommendation of the President is essential for
consideration of these Bills.
• A Finance Bill introduced in Lok Sabha immediately after the presentation of
the Budget containing the financial proposals of the moneys from the
Consolidated Fund of India introduced in Lok Sabha.
Difference between Money Bill and Finance Bill
A Money Bill deals solely with matters specified in Article 110(1) of the
Constitution, whereas A Finance Bill does not exclusively deal with such
matters.
Appropriation Bill
An appropriation bill is a bill that authorizes the government to withdraw funds
from the Consolidated Fund of India for use during the financial year. As per
Article 114 of the Constitution, no amount can be withdrawn from the
consolidated fund of India without authorisation from the parliament of India or
legislature of the States. Due to this, the parliament as well as state assemblies
need to pass appropriation bills as a part of budget exercise to be able to
withdraw money from consolidated fund of union or state to spend it on various
public expenditure programmes and to run day to day affairs of government.

27
 Parts of Legislation
Question: Discuss in detail the importance and legal utility of main contents of
Legislation. (2017-18)
Answers: A Legislation or statue is the formal expression in writing of the will
of the legislature. It expresses the collective will of Parliament or the legislative
body of a country.
Wilberforce has stated that the statute law can be defined as the will of the
nation expressed by legislature, expanded by Courts of Justice.
Parts/Contents of Legislation
Legislation consists of the following main parts:
1) Long Title
2) Short Title
3) Preamble
4) Chapters
5) Headings
6) Definitions clause or interpretation clause
7) Marginal notes
8) Section, Sub-sections & clauses
9) (a) Proviso, (b) Exceptions
10) (a) Explanation, (b) Illustration
11) Schedules and forms
Long Title
Manohar Lal v. State of Punjab AIR 1961 SC 418
The hon’ble Supreme Court observed that the Long Title of the Act denotes or
signifies the main or principle purpose of the Act but it cannot control the
express provisions in the operative part of the Act.
{If a provision of the Act is unambiguous and long title is going against it, then
long title cannot restrict the provisions’ operating part}

28
 Federal Trade Commissioner v. Additional Collector Bilaspur 1989
MPLJ 58
The hon’ble Supreme Court observed that the Long title is a useful guide in
resolving an ambiguity in the Act but will not limit the plain meaning of the text
of the Act.
• Long Title of the Act is an internal aid of interpretation.
Example:
An Act to provide for the more effective prevention of the commission of the
Sati and its glorification and matters connected therewith or incidental thereto.
[The Commission of Sati (Prevention) Act, 1987)]
Preamble
1. Preamble is a recital wherein object, intent or purpose of the Act are given.
It contains recital of the fact or the state of the law which it is proposed to
legislate under the statute, the object and policy of the legislation and evil and
inconveniences it seeks to remedy. (In Re Berubari Union AIR 1960 SC 845)
2. It is a key to open the mind of the legislature, but it cannot be used to control
clear and unambiguous language of the Act.
3. Operative part of the legislation may go beyond the preamble and when they
do so they have to be given effect to, the preamble notwithstanding. [Rahman
Kunju v State of Kerala (1969) 2 SCR 60]
4. Present day practice is not to use the preamble and to start the legislation
directly.
5. There are four exceptional cases where the preamble is used:
a. Where the legislation is of constitutional or international importance.
b. Where the legislation is akin to a private or local enactment, being
intended to remedy and exceptional local problem of such complexity that
an explanatory preamble is necessary to an understanding of the Act.
Example: Forest Act.

29
 c. Where the purpose of legislation is to ratify an agreement of the
Government.
d. Where the legislation is of a formal and ceremonial character.
6) Normally the constitutional document is followed by the Preamble. Example-
The Constitution of India
Purpose of preamble and long title-
1. They indicate in general terms the purpose or object of the Act.
(Raghvendra Singh v Pushpendra Singh 1955)
2. They cannot be invoked to determine the virus of the Act.
3. They cannot control, restrict, qualify, alter or detract from or add to the
enactment where the language of the Act is clear and unambiguous.
(Raghvendra Singh v Pushpendra Singh 1955)
4. Enacting provision would override the preamble where it cannot cover
every mischief in the Act. (Commissioner of labour v Associated
Construction Co. Ltd)
5. Subsequent amendment making radical changes in the Act should be given
effect to, even though preamble remains unamended. (Motipur Zamindary
Co. v State of Bihar 1962)
Short Title
1. It is given to the act solely for the purpose of facilitating the reference to the
Act.
2. As a rule every Act of parliament must have a short title ending with a year
which it is passed.
3. It is just like a nickname (short name) of the legislation.
Chapters
1. When the legislation is bulky, it should be divided into chapter or parts for
the sake of clarity.
2. The purpose of each chapter is to cover a single aspect of the legislation.

30
 3. The Hon’ble Supreme Court has also observed its importance of simplicity
and clarity in the legislation. (Murlidhar v State of Maharashtra 1977)
4. It helps to Avoid obscurity in the legislation.
Headings
1. Headings to the chapters, parts or set of sections are preamble to those
chapters, parts or sections.
2. It gives an idea as to what chapter deals with.
3. It cannot control the plain words in the operative provision.
Definition clause or Interpretation clause
Rules in respect of /related to definition-
1. It is settled principle of law that defined term is to be given same meaning
throughout the legislation unless a contrary intention is expressed. (Shayam
Veer Singh v State of UP 1978)
2. Though the drafter has free hand in defining a word or phrase but
interpretation of word or phrase should be appropriate to those and to the
general purpose of enactment. (Kadija Uma v Mannis Appu 1939, Privy
Council)
Definition must not be out of context-
Definition should not be arbitrary and restrictive or unreasonable qualification
are uncertain otherwise Court will not be bound by it.
“Mean” word in the definition is explanation and prima facie restricted.
“Includes” word in the definition is extension.
“Including” word is term of extension. It adds to the subject matter already
comprised in the definition. It normally indicates towards an extensive
definition but it also may be used in restrictive sense by way of illustrating what
has been said before.
“That is to say” are not the words of restriction but the words of illustration.
(Vasudev Deshmukh v State of Maharashtra 1995 Bombay HC)

31
• A legislation contains definition only when they are indispensable.
• The principle purpose of definition is to avoid repetition and ambiguity in the
legislation.
• The definition of an expression should not contrary to the everyday meaning.
Marginal Notes
1. The object of marginal note is to give clear indication of content of a
section/provision.
2. It must be precise and accurate.
3. When marginal note cannot be made short and clear, the provision should be
divided into two or more parts.
4. According to Patanjali Shastri (Commissioner of Income Tex, Bombay HC
1950), “Marginal Note cannot be referred for the purpose of construing the
statute.
5. Whether Marginal note will be helpful in the interpretation of a provision,
will depend upon the facts, circumstances and subject matter of an individual
case. (SP Gupta v Union of India AIR 1982 SC 149)
Sections/ Sub-sections/ clauses
1. Section is a substantive/operative and important part of the legislation.
2. It deals with the complete aspect of subject-matter.
3. A section must have only one interpretation or one scope.
4. The construction of section is to be made of all of the parts together and it is
not permissible to omit any part.
5. A section is as a part of integral whole and they are interdependent.
6. A harmonious construction should be given to its parts.
Proviso
1. A kind of exception but have nature of qualification.
2. Proviso is an exception in the nature of qualification which but for the
proviso would be within the purview of section.

32
 3. A proviso cannot be torn apart from the section.
Purpose of proviso
1. To qualify or exclude certain provisions from the section.
2. To entirely change the very concept of the provision.
3. It may be used merely to act as optional addenda.
4. It may be so embedded in the provisions of the section, so as to become
integral part of it.
Examples:
Article 6, Article 156, Article 162, Article 213 etc.
Explanation & Illustration
1. The purpose of explanation is to explain certain words, phrases or some
aspects or come of the main provisions.
2. To explain the meaning and intention of the main provision.
3. To remove obscurity and vagueness.
4. To prevent from more than one interpretations.
Examples:
• Article 58 of the Constitution,
• Article 134 of the Constitution, and
• Section 111 of Indian Evidence Act
Schedules & Forms
1) A Schedule is a part of the statute and it may be used in construing the
main provisions contained in the body of the Act. However, expressions
in the schedule cannot control the express provisions of the statute.
Example:
There are 12 Schedules in the Constitution of India.
2) Forms normally prescribe the prescribed language and format in which an
application or any return etc., is to be filled or submitted or the format in
which notices, summons or warrants etc., are to be issued.

33
Example:
Second Schedule to the Code of Criminal Procedure, 1973 contains about 56
forms.
Transitory Provision Clause
A provision that starts before an amendment or enactment of the legislation
comes into force and ends after the amendment or enactment of the legislation
has come into force.
Example-
Section 3 of the Transfer of Property Act, 2002.
Removal of Difficulty Clause
When power is transferred on the government to modify the provisions of the
existing legislation for the purpose of removing difficulties, this kind of
provision is known as removal of difficulty clause.
Difference between Removal of difficulty Clause and Henry VIII Clause
• Henry VIII Clause refers to the provision in a primary Act which empowers
the Executive to make secondary legislation which are inconsistent or can
amend, repeal with the primary legislation. Whereas the Removal of Difficulty
clause conferred on the Government to improvise the provision so as to remove
the difficulties.
• Henry VIII Clause can be of two types: First is narrow, which permits the
executive to enact delegated legislation so long such legislation does not
contravene or derogate from the provisions in the parent act. Second is broad,
in which the Executive is permitted to enact delegated legislation which
derogates from the provisions under the parent act. Whereas Removal
of difficulty Clause can also be of two types: First is narrow approach, which
empowers the Executive to remove the difficulty provided that it is in
consonance of the parent act. Second is wide approach, in which in the name of
removal of difficulties the Executive can even modify the parent act.

34
 Duration Clause

Extent Clause

Overriding Effect Clause

Non-obstante Clause
(i) A section sometimes begins with the phrase “notwithstanding anything
contained etc.” such a clause is called Non-obstante clause.
(ii) A Non-Obstante Clause is usually used in a provision to indicate that, that
provision should prevail despite anything to the contrary in the provision
mentioned in such Non Obstante Clause.
(iii) When the non-obstante clause refers to the provision of a statute, the
intention of the legislature must be determined and the clause has to be
construed accordingly. It is often used by way of abundant caution, but mainly
used as a legislative device, in case of conflict, to give the provision containing
non-obstante clause an overriding effect over any other provision.

35
 Statement of Objects and Reasons Clause
The Statement of Objects and Reasons clause explains what reasons induced the
mover to introduce the bill in the House and what objects he sought to achieve.
But those objects and reasons may or may not correspond to the objective which
the majority of members had in view when they passed it into law. The bill may
have undergone radical changes during its passage through the House or
Houses, and there is guarantee that the reasons which led to its introduction and
objects thereby sought to be achieved have remained the same throughout till
the Bill emerges from the Parliament as an Act.
The Statement of Objects and Reasons clause appended to the Bill should be
ruled out as an aid to the construction of a statute.

36
 Role of Public Opinion
Question: Discuss the Role of Public Opinion in Law Making. (2017)
Or
Write a short note on Pre and post legislative scrutiny of legislation. (2015)
Answer: Parliament performs several essential functions including that of
making laws, scrutinising and passing the budget, conducting oversight on the
activities of the government and representing citizens. As a law making body,
Parliament is tasked with examining legislation and passing it after scrutiny and
debate.
1) Pre-legislative stage
2) Legislative Stage
3) Post-legislative Stage
Pre-Legislative Stage
When a Bill is in its draft stage, it may be placed in the public domain for
stakeholder feedback. Over the years, a few draft Bills have been published for
stakeholder information and feedback. In 2014, the central government
introduced a policy on pre-legislative consultation to be followed by every
Ministry before submitting a legislative proposal (including subordinate
legislation) to the Cabinet. The policy mandates that a draft Bill be placed in the
public domain for 30 days. It is to include a justification for its introduction,
financial implications, estimated impact assessment and an explanatory note for
key legal provisions. A summary of comments received is to be made available
on the relevant Ministry’s website. The draft Bill is then sent for Cabinet
approval.
The government’s pre legislative consultation policy has not been implemented
in a uniform manner. For example, the Delhi Special Police Establishment
(Amendment) Bill, 2014 that was not placed in the public domain at the draft
stage.

37
The pre-legislative consultation policy also provides for a 30 day window for
stakeholder comments. However, the Health Ministry provided only 10 days for
submitting comments on the draft amendments to the Medical Termination of
Pregnancy Act, 1971.
If practices around public consultations on draft Bills are implemented in a
uniform manner it would aid in effective implementation of the policy. In the
UK, every draft Bill and its Explanatory Notes are made publicly available for
pre-legislative scrutiny.
Legislative Stage
Once a Bill is introduced in Parliament, it may be referred to a Department
Related Standing Committee (DRSC) for detailed examination. However, it is
not mandatory to refer a Bill to a Committee. In the 15th Lok Sabha, about 70%
of Bills introduced were referred to Standing Committees. The House may also
form a Select Committee to examine a particular Bill. The Commercial Division
of High Courts Bill, 2009 and the Insurance Laws (Amendment) Bill, 2008
were referred to Select Committees of Rajya Sabha.
Currently, draft Bills are not examined by Parliament or its Standing
Committees. Such scrutiny at the draft stage would increase the efficiency of
Parliament, as it is easier to modify a draft Bill before its formal introduction in
Parliament. In the UK, most Bills are examined by Parliamentary Committees,
before their introduction in Parliament.
Post-Legislative Stage
There are two types of Post-Legislative Scrutiny. First, Post-Legislative
Scrutiny can refer to a broad legislative review, the purpose of which is to
evaluate whether and to what extent a piece of legislation has achieved its
intended purpose. Second, it can also refer to a more focused evaluation of how
a piece of legislation is working in practice. This latter variant is more focused

38
and tends to be a purely legal and technical review. In consequence, the act of
Post-Legislative Scrutiny holds two distinct functions:
(1) A monitoring function, as the application of legislation and especially the
adoption of the necessary secondary legislation is apprehended by
parliament at identified moments
(2) An evaluation function, as parliaments seek to ensure the normative aims
of policies are reflected in the results and effects of legislation.
Post-Legislative Scrutiny as a form of legislative evaluation is therefore a
learning process that both contributes to a parliament’s knowledge of the
impacts of legislation but also its know-how in ensuring legislation is well-
matched to its referent actors. By implication, Post-Legislative Scrutiny may
reduce ambiguity and distrust and allows the legislator to learn by doing.
In its 2006 landmark report, the UK Law Commission outlined the main reasons
for having more systematic Post-Legislative Scrutiny as follows:
• to see whether legislation is working out in practice as intended;
• to contribute to better regulation;
• to improve the focus on implementation and delivery of policy aims;
• to identify and disseminate good practice so that lessons may be drawn from
the successes and failures revealed by the scrutiny work.

39
 Role of Law Commission
Question: Write a short note on role of Law Commission in Law making.
(2017)
Answer: Law Commission
➢ Law Commission is an ad-hoc and advisory body.
➢ Law Commission is established by an order of Central Government and is on
the complete discretion of the Government.
➢ State Government can also appoint their own Law Commission.
➢ Law Commission in consultation with Ministry of Law and Justice submits
its report to Prime Minister’s Office.
➢ Government is not bound by its recommendations.
➢ Term of Law Commission is 3 year.
➢ It consists of not more than 12 persons: 1 chairperson, 4 full-time member
(one will be member secretary), Secretary of Department of Legal affairs &
Secretary of Legislative Department are the ex-officio members and there will
be not more than 5 part-time members.
Importance of Law Commission
First Law Commission was established in 1834 by the Charter Act of 1833
under the chairmanship of Lord Macaulay. It recommended codification of
Penal Code and Criminal Procedure Code and various other laws. After that
three more law commissions were established in the British Era. On the
recommendation of these commissions Code of Civil Procedures, Indian
Contracts Act, Indian Evidence Act, Indian Penal Code and Transfer of
Property Act were enacted.
First Law Commission in independent India was established in the year 1955
under the chairmanship of M.C. Setalvad. Since then after every three year the
Law Commission is being constituted by the Government (PMO).
The main functions of Law Commission are as follows:

40
1) To identify the laws which are no longer needed and can be immediately
repealed.
2) To identify the laws which are not in harmony with the existing climate of
social and economic liberalisation.
3) To identifies the laws which otherwise require amendments and changes.
4) To seek opinions/ suggestions/ inputs from various stake holders/ expert
groups of government/ departments/ targeted groups/ implementing authorities
and/or public at large, to bring modifications or amendments.
5) To suggest suitable measures for quick redressal of citizens’ grievances.

41
 Constitutional Mandate
Fundamental Right as a Constitutional Mandate
➢ The Constitution of India is the grand norm and establishes rule of law in our
country.
➢ Every legislation whether parliamentary, executive or judicial must comply
with the constitutional norms and mandate.
➢ Article 13 is an essential requirements for all laws and constitutional
amendments under Article 368.
➢ Constitutional mandate can be visualized through its preamble, Fundamental
Rights, Directive Principles and other provision of the constitution.
➢ Fundamental Right are very important and cannot be amendment so as to
destroy its essential features which forms the part of basic structure.
➢ Fundamental Right as constitutional mandate has been established through a
series of cases and ultimately need the part of basic structure.
➢ The development in this regard can be understood in following manner:
1) For the first time, when first constitutional amendment act which inserted
Article 31 (A) and Article 31 (B) were challenge on the ground of violation of
fundamental right. In the case of Shankari Prasad v Union of India, the
hon’ble Supreme Court made a distinction between constituent power (Article
368) and ordinary legislative power (Article 13) and declared that constitutional
amendment under Article 368 is not within the purview of Article 13 (2), so
therefore in the exercise of constituent powers equivalent to sovereign powers
in Pre-independent era.
2) The Supreme Court upheld the judgement again in the case of Sajjan Singh
v State of Rajasthan 1965 and then Chief Justice Gajendra Gadkar opined that
intention of Constitution makers to exclude the Fundamental Rights from
amending power of Parliament doesn’t appear anywhere.

42
3) Both the judgements were overruled in the case of Golaknath v State of
Punjab 1967 by giving the doctrine of prospective overruling.
4) To remove the difficulty arose out of the judgement in Golaknath case, 24th
Constitutional Amendment 1971 was passed.
5) To decide extent of the amending power of the Parliament, a 13 judge bench
was constituted in Kesavananda Bharati v State of Kerala.
6) A majority of seven judges declared that amending power of Parliament is
very wide but not unlimited because of inherent limitations which was not
accepted by Justice Khanna. (Concurring opinion)
7) A majority of seven judges declared fundamental rights as part of basic
structure including to the supremacy of constitution, republican and democratic
form of government, secular character, federal character, dignities of
individual, mandate to build a welfare state, separation of powers etc.
8) Therefore, fundamental rights cannot be violated in law-making by any
authority under Article 12, may it be legislative, executive or judiciary.

43
 Principles of Legislation
Principle of Utility
Bentham's Theory of Utility Bentham's book 'The Theory of Legislation' is a
masterpiece in the field of law. Bentham's objective is to educate the legislators
and to provide them with a sound philosophy broad-based on the theory of
Utilitarianism. Legislation is a science and an art. It is a science as it contains
certain basic principles to do good to the community and it is an art when it
provides for the various means to achieve the good. The objective of the
legislator mast be to do public good. He may base his reasons on general utility.
Utility is the basis of Bentham's theory. The principles of utility form the basis
of his reasoning, On an analysis of the principles of utility, we find that all our
ideas, judgements and determinations spring from certain motives: pleasure and
pain. It is the duty of the moralists and the legislators to make a great study of
these two concepts pleasure and pain. Utility is an abstract term. It expresses
some propensity or tendency of a thing to prevent some evil or to do some
good. Evil is pain or the cause of pain. Good is pleasure or the cause of
pleasure. Hence, anything which conforms to this utility, brings happiness to
the individual. The legislator must have the objective to augment the total sum
of the happiness of the individuals that form the community. Utility is the first
principle-the first link in the chain. The legislators reasoning for making a
particular law, must be based on this principle. Utility has a commendable logic
behind it. In making law, the legislator must calculate or compare the pleasure
or the pain that it brings about. Here pleasure & pain are used in the ordinary
meaning i.e., what everybody feels when put in a situation it is the experience
of the peasant and the prince, the unlearned and the philosopher. Utility as a
principle has its essence in the virtue and the vice. Virtue is good as it brings
pleasures, vice is bad as it brings evil. Moral good is good as it brings pleasure
to the man, Moral evil is bad as it brings pain to the man. The legislator who

44
believes in the theory of utility, finds, in the process of law-making, a number
of these virtues and evils, that the proposed law may bring about. His objective
must be to bring more virtue, He must also distinguish pretended virtues and
evils from the real virtues and evils. These are the facets of the concept of
utility and based on this exposition Bentham develops his philosophy of
utilitarianism. His works 'the theory of legislation' and 'Introduction to the
principles of Morals and Legislation', form a manual of instructions to a
legislator. A knowledge of these, makes the legislator appreciate the moral and
legal philosophies of Bentham and also to get an insight into the sociology of
law.

45
Question: Write a Short note on Ascetic Principle of Legislation. (2017)
Answer: Ascetic Principles
Ascetic means 'one who practices'. It refers to the monks who practice
penitence & devotions. They desire to reduce pleasures and to suffer pain. This
Ascetic principle is opposed to the principle of utility. It is followed mainly by
philosophers and devotees. The philosophers raise above humanity, and despise
vulgar or sexual pleasures. In return, they get reputation and glory in society.
Bentham says that these are 'foolish people' tormented by vain terrors.
According to them, they feel that they should punish themselves so that they
may not be born again. Their objective is to reduce pleasures to the minimum
and to suffer pain. Each pain brings happiness in the other world. These persons
have a horror of pleasure. Everything that gratifies the senses is criminal,
odious and therefore to be abandoned. They approve everything that diminishes
enjoyment. They blame everything that helps to increase enjoyment.
Asceticism has its origin in the concept that attraction of certain pleasure may
lead a person astray and force him to commit pernicious acts. The evil here was
more than the good. Hence, it was prohibited. But, the basis of all good laws
and sound morals is also to forbid such pleasures as would bring bad effects in
society. No doubt the ascetics have taken their principle to the extreme. They
have made a frontal attack on utility. Bentham opines that the ascetics have
made a mistake. They have attacked pleasure itself, they have condemned it.
They have made it the object of a general prohibition. This principle, has not
influenced the governments. On the contrary, every Govt, has the object to
acquire more strength & prosperity. Hence, asceticism has appealed to some
individuals. Some monastic orders have been patronised by some Government.

46
 Principle of Sympathy & Antipathy or Arbitrary Principle
The principle of Sympathy and Antipathy is also called the arbitrary principle.
According to this, certain actions are approved or disapproved, without giving
any reason for the decision, except the decision itself. An action is good or bad
according to the whims and fancies of an individual. This is not a principle of
reasoning; it is the negation of it. A despot belongs to this group. He speaks
sovereignty; he admits no appeal. He does not think that he should justify his
decision with reference to the good of the society. I feel that it is so. 'It is my
intimate conviction' etc. Bentham quotes a despot telling 'God speaks by my
mouth. Come and receive the Oracle of God'. The despot's opinion triumphs, it
is supreme. What results from this is anarchy. This is the essence of arbitrary
principle. Here, the despot is unmindful of the consequences. He furnishes no
reasons. Hence, this cannot be made the basis of and system of reasoning. As
such, this is to be discarded. Bentham says the principle of Sympathy neither
admits nor rejects the theory of utility, but floats between the good and the evil.
That which is not under me is against me' is its motto.
Causes of Antipathy
Bentham observes that Antipathy has its tremendous influence on morals and
legislation. What factors give birth to Antipathy?
i) Repugnance of sense: something which the senses do not agree, to
accept. Animals are killed as they are brought of as ugly.
ii) 'Wounded Pride: When a person does not accept but shows disregard
there is wounded pride. Contempt grows.
iii) Power Controlled: We find our power is limited and bounded. This is a
secret pain.
iv) Confidence in the future weakened or destroyed. Falsehood makes us
doubt and we do not rely upon such a person.
v) The desire of unanimity: Unanimity is very pleasing to us. There would
be mutual confidence and increase of pleasure.
vi) Envy: When certain advantages are given to some, others envy. With
envy person may become an ascetic. Envy leads to reducing the
pleasures.
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Question: Write a short on Codification and Consolidation. (2015)
Answer: Codification
Salmond defines codification as “the reduction of the whole corpus juris, so far
as practicable to form enacted law.”
Codification is the systematic process and reduction of the whole body of law
into a code in the form of enacted law. Thus, the law which previously was in
the shape of customs, ancient texts, judicial decision and fragmentary statutes is
collected at one place and presented in systematic arrangement which is known
as code.
United States v Grainger 1976

Codification contemplates, implies and produces continuity of existing law in

clarified form rather than its interpretation.

Consolidation
Consolidation is the process of consolidating the whole law- statutory,
customary and precedent on a particular subject and declares it. This is done
systematizing and simplifying the law.
Bennett v Minister for works of New South Wales 262 US 165
According to Connor, “It is a consolidating act which re-enacts in an orderly
form the various statutes embodying the law on subject, the presumption that
when the wards of the statutes are clear their effect cannot be cut down by a
comparison with the language of earlier statutes.”

Difference between Codification and Consolidation

The distinction to be drawn between status which codify and those which
consolidate the law is that in construing the letter there is a presumption that the
law was not intended to be altered so that regard may be had to decisions on the
construction of the earlier enactments which are consolidated (even if the words
are not identical but this presumption must yield to plain words to the contrary

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Question: Write a short note on Legislative intent. (2017)
Answer: It refers to the invention of the legislature, it is very important in the
cases of doubt or confusion. This confusion may occur because of various
reasons,
1) The draftsman may refrain from using certain words/phrases which he
regards as necessarily implied which the users may not realize.
2) Sometimes draftsman may use it as a broad term and leaves it at the
discretion of judges and users to interpret it is the context of their situation.
3) Ambiguous words may have been used
4) There may be unforeseeable development in the field
5) In some circumstances there may be many ways in which the wording may
be inadequate.

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Question: Write a short note on the sources of legislation.
Answer:
1) The text of the bill as proposed initially to the legislative body.
Amendments to the bill which were proposed, accepted or rejected.
2) Legislative records in Journal
3) Discussions in the houses of constitutional assembly debates.
4) Other related and relevant institutes and the institutes which limit the statue
in question.
5) Legislative files of the executive branch
6) Case laws prior to the enactment.

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 Rules of Language
1) Ejumsdem generis: (Of the same kind) A law for definition of class applies
for the same act be it anything living or non-living. Law applies to the entire
class. (Powell v Kempton Park Race Course 1899 AC 143)
2) Moscitor Sociies: Derive colour from those which surrounded them. (1965
AC 402)
3) Est Expressio Unius Est Exclusio Ulterious: Explicit mention of one thing
is exclusion of other.

Rules of Interpretation
1) Mischief Rule: As per hedons case (1584), for true interpretation of statutes
four things should be considered.

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 Background Knowledge

Reversal – When the decision of a lower court is overturned by a higher court,

in appeal.
Overruling – When the decision of the lower court is overturned by a higher
court in a different and later case.
• Supreme Court and High Court are to determine the Question of Law. (It is a
question where law is disputed and needs interpretation of law or constitution)
• Lower Courts are to determine Question of Fact. (It is a question where law
is not disputed and can be determined via witnesses, evidence and
circumstances)
1) Authority of Federal Court decisions on the High Court
Federal Court was an appellate court and was the highest court of Appeal for
Indian Cases from 1937 to 1950 and it was established under the Government of
India Act, 1935.
Section 212 of the Government of India Act, 1935 made the decisions of federal
court binding on the High Courts.
Section 212
The law declared by the Federal Court and Privy Council shall be binding on all
the courts in British India.
Article 225 of the Constitution of India uses the words “law administered in any
existing High Court” which also includes case laws.
Under Article 135 of the Constitution of India, the Supreme Court shall have the
jurisdiction and powers with respect to any matter, to which the provisions of
Article 133 or Article 134 do not apply, of the Federal Court.
Article 135
Until Parliament by law otherwise provides, the Supreme Court shall also have
jurisdiction and powers with respect to any matter to which the provisions of

52
Article 133 or Article 134 do not apply if jurisdiction and powers in relation to
that matter were exercisable by Federal Court immediately before the
commencement of this constitution under any existing law.
2) Authority of Privy Council’s decision on the High Courts
By virtue of Article 225 of the Constitution of India, decisions of the Privy
Council given before 1949, shall be binding on the High Courts unless they
have been overruled by the Supreme Court of India or not in the contradiction
with the provisions of the Constitution of India.
3) Authority of Supreme Court’s decision on the High Courts
By virtue of Article 141 of the Constitution of India, decisions of the Supreme
Court are binding on all the High Courts of India.
4) Authority of Supreme Court’s decision for itself
Under Article 141, the expression ‘All the Courts within the territory of India’
clearly means the courts other than the Supreme Court.
Whether Supreme Court is bound by its own decisions or not, was considered in
the case of Bengal Immunity Co. Ltd v State of Bihar AIR 1955 SC 661 and it
was observed that there is nothing in the Constitution which prevents the
Supreme Court departing from its previous decisions if:
(a) It convinced if its error,
(b) Its beneficial effect on the general interest of public.
Article 141
The law declared by the Supreme Court shall be binding on all Courts within
the territory of India.
5) Binding value of a High Court’s decision for the Courts below
to it
The decision of a High Court is binding on all the sub-ordinate courts and
tribunals within its jurisdiction.

53
However, the decision of one High Court has only persuasive value in a Court is
within the jurisdiction of another High Court.
M. Abdul Sattar Saheb v H. Abdul Hakeem AIR 1976 AP 84
If a decision of High Court is in conflict with any decision of another High
Court within whose jurisdiction that lower court is situated, it has no value and
decision of its High Court is binding.
In case of there being any conflict between the two decisions of coequal
benches of the high court, the decision which is later in time is to be followed
but in the case of Indo-Swiss Time Ltd v Umrao AIR 1981 P&H 230 (F.B.), it
was observed that reason and logic of the precedent case should also be
observed not mere the fact of later in time.
6) Binding value of a High Court’s decision for itself
Binding value of High Court’s decision for itself can be seen through following
cases:
V.R.G. and G.O.M.C. Company v State of Andhra Pradesh AIR 1972
SC 51
The hon’ble Supreme Court held that one bench of the same High Court cannot
take a view contrary to the decisions given earlier by another co-ordinate bench
of the same High Court. It is bound by such decisions.
Oriental Merchantile Agency v Presiding Officer AIR 1973 SC 1143
The hon’ble Supreme Court held that the decision of a division bench is binding
on the single judge of the same High Court, though the decision of division
bench might be wrong.
Raghavamma v Chenchamma AIR 1964 SC 136
The hon’ble Supreme Court decided that the decision of one division bench is
binding on another division bench.
The State of Rajasthan v Tarachand Jain AIR 1973 SC 2131

54
The hon’ble Supreme Court held that order (judgment) of earlier division bench
of High Court is binding in subsequent proceedings of the same case.
Shri Bhagvan v Ramchand AIR 1965 SC 1767
The hon’ble Supreme Court held that if a single judge is hearing a matter, is
inclined to take the view that the earlier decision of High Court whether of a
division bench or of a single judge needs to be reconsidered, he will refer the
matter to a division bench or in an appropriate case, he may transmit the
relevant documents before the Chief Justice and may request for the
Constitution of a larger bench.
7) Authority of a High Court’s decision for another High Court
The decision of a High Court has persuasive value for another High Court. The
decision of a High Court is not binding on another High Court however it may
be considered.

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 IMPORTANT TERMS/ CONCEPTS
1) Declaratory Judgement
It is a decision in the civil matter where rights, responsibilities or liabilities of
the parties are upheld or spelled out without awarding any damages or
compensation.
2) Default Judgement
It is a judgement in the favor of plaintiff where when the defendant has not
responded to the summons of the court and did not turn up to the court.
3) Ex-Parte Judgement
Ex-Parte judgement may either be in favor of plaintiff or defendant when the
opposite party is not responding to the summons.
4) Vacated Judgement
The judgement which is overturned is called vacated judgement. (Vacated
judgement is the result of overturning)

5) Affirmed Judgement
The judgement of a lower court which is approved by or confirmed by the
appellate court.
6) Judgement in Personam
The judgement which is rendered against an individual (including corporation)
called judgement in personam.
7) Judgement in Rem
The judgement which is rendered or pronounced upon the status of some
particular subject matter or rendered in a proceeding instituted against property.
8) Diffused Judgement
The judgement having merged opinions and delivered without judicial
conference.

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Question: Differentiate the use of Plaintiff, Defendant, Appellant, Respondent
and Petitioner?
Answer: Plaintiff
• A plaintiff is the person or group of persons who is accusing another person or
group of some wrongdoing.
• Plaintiffs are claiming that the law was broken, and they are in court to
present their case.
• Plaintiffs are people who initiate proceedings and who claim that there is
some harm they have suffered that the court has jurisdiction to remedy.
• A person who brings an action against defendant.
• The party who complains or sues in a personal action and is so named on the
record.
Defendant
• The person defending or denying the Plaintiff’s claim.
• The party against whom relief or recovery is sought in an action or suit.
• A defendant is a person accused of committing a crime in criminal
prosecution.
• A person against whom some type of civil relief is being sought in a civil
case.
Appellant
• Appellants are those who initiate an appeal based on an issue of law to the
higher court.
• The person who is not satisfied with the judgment in litigation in the lower
court or unsatisfied with the findings before administrative can ask superior
court to review their decision.
• Whether the party was plaintiff or defendant in lower court has no bearing on
their status as an appellant.

57
 Respondent
• Respondents are those persons who respond to the appellant's claims in the
court.
• The respondent is the party against whom the petition is filed, specifically one
on appeal.
• The respondent can be either the plaintiff or the defendant from the court, as
either party can appeal the decision thereby making themselves the petitioner
and their adversary the respondent.
Petitioner
• The petitioner is the party who presents a petition to the court.
• In the case of appeal, the petitioner is commonly the party who lost in the
lower court.
• This can be either the plaintiff or defendant from the court below, as either of
the parties can present the case to a higher court for further proceedings.
• Petitioners may be any of these parties and is a more generic term for one who
files a document with the court for whatever reason

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Question: Discuss the circumstances which increase or decrease the binding
value of a precedent?
Answer: Circumstances which increase the authority of a precedent

1. No. of Judges: The number of judges constituting the bench and their
eminence is a very important factor in increasing the authority of
precedent.
2. Unanimous Decision: A unanimous decision carries more weight.
3. Affirmation: Affirmation, approval or following by other courts,
especially by a higher tribunal, adds to the strength of a precedent.
4. Legislation: If an Act is passed embodying the law in a precedent, the
gains an added authority

Circumstances decreasing the binding value of precedent

1. Abrogated decisions – A decision ceases to be binding if a statute or

statutory rule inconsistent with it is subsequently enacted, or if it is reversed or
overruled by a higher court.
2. Same decision on appeal is reversed by the appellate court. –
24th amendment of Indian Constitution was passed to nullify the decision of the
SC in the case of Golaknath.
3. Affirmation and Reversal on a Different Ground – A decision is affirmed
or reversed on appeal on a different point.
4. Ignorance of Statute – A precedent is not binding if it was rendered in
ignorance of a statute or a rule having the force of statute i.e. delegated
legislation. A court may know of existence of the statute or rule and yet not
appreciate in the matter in hand. Such a mistake also vitiates the decision. Even
a lower court can refuse to follow a precedent on this ground.

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5. Inconsistency with Earlier Decision of Higher Court – A precedent is not
binding if the court that decided it overlooked an inconsistent decision of a high
court. High courts cannot ignore decision of Supreme Court of India.
6. Inconsistency with Earlier Decision of Same Rank – A court is not bound
by its own previous decisions that are in conflict with one another. The court of
appeal and other courts are free to choose between conflicting decisions, even
though this might amount to preferring an earlier decision to a later decision.
7. Precedent sub silentio or not fully argued – When a point is not involved in
a decision is not taken notice of and is not argued by a counsel, the court may
decide in favour of one party, whereas if all the points had been put forth, the
decision in favour of one party. Hence, such a rule is not an authority on the
point which had not been argued and this point is said to pass sub
silentio. Binding force of a precedent does not depend on whether a particular
argument was considered therein or not, provided the point with reference to
which an argument was subsequently advanced was actually decided by the SC.

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Question: Difference between constitutional and extra-constitutional bodies.
Answer: Institutions or bodies may be Constitutional or extra-constitutional or
non-constitutional.
Constitutional Bodies
Constitutional bodies are those which have been mentioned in the Constitution
and derive their authority from the constitution.
Example: Attorney-General of India (Article 76), Comptroller and Auditor
General of India (Article 148), Election Commission of India (Article 324),
Finance Commission (Article 280), National Commission for SC/ ST (Article
338, 338(A)), Special Officer for linguistic minorities (Article 350(B)), UPSC
(Article 315) and State Public Service Commission (Article 323).
Extra-Constitutional Bodies
Extra constitutional bodies or Non-constitutional bodies derive their authority
by a law created by the parliament, an ordinance promulgated by the president
or an executive order. It does not have mention in the constitution. Extra-
Constitutional bodies may be statutory or executive in nature.

1) Statutory Bodies

Bodies created by a law passed by the parliament and derive their authority
through an act. Example: Information Commission, National Human Rights
Commission, Central Vigilance Commission are statutory bodies.

2) Executive Bodies

Executive bodies are created by an executive order. Such bodies have no

constitutional or law backing them. Executive bodies are also known as Non-
statutory bodies. These bodies may be permanent or Ad-hoc in nature.
Example: Planning Commission (NITI Aayog) and UIDAI are permanent
bodies. Whereas Kothari Commission (1964), Khosla Commission (1970) and
Mandal Commission (1980) are example of Ad-hoc bodies.
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 Format for answering the question in Exam
➢ Introduction/Background
➢ Constitutional Provisions if any
➢ International Position
➢ Indian Supreme Court’s Position/ judgement/ opinion
➢ Self-observation if different
➢ Conclusion (agree/ disagree with the view)

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