Part-2: Agriculture Marketing Reforms - Constitution Ignored - Farmers exploited

Part-2: Agriculture Marketing Reforms

(To read earlier parts, please search on this blog with keyword 'Marketing')

Constitution Ignored - Farmers exploited

By
Vijay SARDANA, 
Advocate, Delhi High Court
Techno-legal Expert on Agribusinesses 
& Consumer Products Industries
& 
Priyanka Sardana, Advocate, Supreme Court of India
& 
Aastha Sardana, Researcher on Legal Matters

The Constitution of India secures the freedom of Trade, Commerce and Intercourse within the Territory of India under Article 301, subject to reasonable restrictions & public interest ranging from Article 302-307. It is worth mentioning that Part XIII (Article 301-307) is in addition to Articles 14 & 19.

The purpose of the APMC Act for farmers has not explained anywhere, why?

Why Indian farmers were allowed to sell or trade their products freely anywhere in the country when the constitution permits this? When every other product and the commodity is allowed to be traded anywhere in the country why restrictions were imposed on the farmers? 

What was the motive behind these restrictions; it is not explained in any APMC Act of any state government. Please read all the APMC Acts of all states it says:

1.  to regulate the marketing of agricultural and certain other products in market areas and markets, 

2.  to confer powers upon Market Committees; 

3. to establish Market Fund for purposes of the Market Committees. 

Nowhere it is mentioned what is the purpose of APMC markets for farmers and consumers. How they will help farmers in their welfare.

Existing Agriculture Marketing Rules are against Indian farmers 

India has accepted free and fair-trade regime as a member of WTO i.e. "One World- One Market", why the same is not accepted as "One Country - One Market" in India?

As a country, we have agreed to free and fair marketing environment at the global stage, but we are not keen to offer the same to the farmers for their own agriculture produce for the benefit of farmers and consumers of India. The same we have decided for all other sectors within the country and to facilitate that we introduced GST taxation system. Why the same benefit is not there for Indian farmers and why this discrimination in the agriculture sector? 

This is one of the single most reason for acute poverty in rural India where farmers live and work hard but never get due share of their hard work. The exploitation of farmers by licensed cartels promoted and supported under the outdated laws of the state governments is the biggest tragedy of India. These laws were created when India was in short supply and there was no infrastructure and no mobile technology. The world has changed but exploitation of farmers continues because laws created for exploitation remain in force. No amount of justification to continue with the existing system has any logic. Let APMCs’ compete with open market buyers and let farmers decide which is the right place for them to sell their produce. Why APMC traders’ cartel wants a monopoly on farmers’ crop?

In India, Imported farm produce enjoy the freedom the produce of Indian farmers, Why?

Imported wheat, rice and pulses can e traded without any restrictions, but Indian farmers’ wheat, rice and pulses have to go through outdated and exploitative APMC mandi system route, Why? 

Why there is no level playing field for farmers of India?

Articles 301 & 304 (a) rings a bell or two regarding a well- known concept in International trade i.e. Regional Trade Agreements or Free trade Agreements (RTA or FTA) & National treatment.

The GATT- WTO regime has put in place a well-organized system of free trade/ trade without barriers amongst member Nations. India is a founder member of this treaty, but when it comes to Indian farmers, we do not provide them with the same free and fair market environment.

The tragedy in India is imported agriculture produce, as per WTO agreements, which can move freely within India without any restrictions, but the farm produce of Indian farmers cannot move freely within India. This is a unique example in the world where state governments in India are creating a problem for their own products and own trade against the imported products.

This is making the Indian economy inefficient by increasing the cost of the transaction and by creating legal hurdles for investments and employment generation. 

Existing APMC law violates fundamental rights:

Article 19 (1) (g), a fundamental right confers on the citizens the right to carry any profession or carry on any lawful occupation trade or business. State APMC Acts violates this fundamental right for both buyer and seller of farm produce. Should we restrict any transaction between farmer and buyer of his crops? The state laws are imposing restrictions on free trade in India between various citizens of India located in various parts of India. The legality of the state laws should be questioned. Who is benefiting from these trade restrictions?

Misinterpretation of constitutional provisions by States created an exploitative environment: 

The list mentioned under Article 246, Schedule VII is not a source of power. The decision by the Constitutional Bench in the case of Ujagar Prints vs Union of India, reported in [1988 (38) ELT 535 (SC)] is a classic milestone. Arguments by Stalwarts and Erudition of the Bench had brought to light certain foundational principles.

The Hon'ble Supreme Court had laid down the following principle: Entries to a legislative list are not sources of legislative power but are merely topics or fields of legislation and must receive a liberal construction, inspired by a broad and generous spirit and not in a narrow pedantic sense. (para 18)

Let us now analyze what are provisions in the legislative lists:

In our view, these legislative lists are defined for better governances and to enhance the welfare of the people of India, not for the exploitation of them. 

> Union List: Entry 42: Inter-State Trade and Commerce: Agriculture and Livestock Produce is a commodity for trade. Farmers are growing crop and livestock for trade. Union government is duty-bound to ensure that transactions between farmers and buyers are unrestricted within India. Union Law should facilitate the same. There is no exception given in this regard in this list.

> State List: Entry 14: Agriculture, including agriculture education and research, protection against pests and prevention against diseases. This is clearly defined that agriculture i.e. pre-harvest activity. It means crop production is the domain of the state.  The state may advise farmers, based on agro-climatic consideration and to conserve natural resource state, which crop should be promoted or discouraged, can be decided by the state. 

The post-harvest output like grains, oilseeds, fodder, cotton, jute, etc. is not agriculture. They are commodities for trade. The drafting team of the constitution understood this because food has to travel for consumption. Food security of citizens cannot be at the mercy of one state when other states are suffering due to shortage or inflation. That is why trading of agriculture outputs was placed in Union list.

> State List - Entry 28: Markets and fairs: It is true that state governments are allowed to frame the law in these domains. Let states create mandies, fairs and markets and manage them as their state assets. If they are useful and beneficial farmers and traders will use them. If they are not, states cannot force them to use them or pay for them. The government can collect user changes from those who use but cannot force mandatory user chargers from those who do not want to use them because of poor location or bad infrastructure or unsuitable to do fair trade.  

According to the constitution, these rules and regulations must not infringe the fundamental rights of the citizens. The Constitution Chapter-13 says actions of the states must not restrict trade and commerce and should not kills the entrepreneurial spirit of the people of India. Any law which acting against this spirit must be reviewed and challenged in the national interest.

> Concurrent List: Entry 7: Contracts, including partnership, agency, contracts of carriage and other special forms of contract, but not including related to agriculture land. Union government can make laws to promote contracts between buyer and seller of agriculture commodities. The contract can be verbal or in writing. The scope of the contract is a mutual decision of the parties involved.

> Concurrent List: Entry 33: Trade and commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products

(b) foodstuffs, including edible oilseeds and oils

(c) cattle fodder, including oilcake and other concentrates

(d) raw cotton, whether ginned or not ginned and cottonseed; and

(e) raw jute.

All output from farms will fall in the above categories. The union government has the power to frame the law in this regard.

While discussing farmers right to trade let us serious study the full chapter of Constitution of Trade and Commerce.

What are the options before the Union Government?

In the interest of the welfare of people and the development of India, the Union government can always frame a law under various provisions. 

State Governments are always free to improve the free market, in place of having restrictions, which may hurt the welfare of the citizens of India. Any restrictive practices to hurt the interest of farmers and consumers by any state must be opposed by all.

The Way Forward:

All state should be ranked base on restrictive agriculture trade laws. The ranking of the state should suffer for creating and supporting cartels, rent-seeking mindset and increase in transaction costs.

-------------------------------

Follow this blog and visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Part-1: Agriculture Marketing Reforms and Constitutional Provisions

Part-1

Agriculture Marketing Reforms and Constitutional Provisions

Indian Constitution & The Doctrine of Pith and Substance

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Introduction:

In "Atmnirbahar Bharat" (Self-reliant India) announcement many people started debating the role of the union government in policy reforms. Most of the articles and debates are based on perceptions and common narrative which was flooded in the market. There is a major confusion due to the use of wrong terminologies to explain the point.

Examples: 

1. The terms "Agriculture" and "food grains" are the same or different?

2. Whether "market" and "trade" are the same thing or different?

Let us first understand what the constitution says:

Whenever there is a debate on agriculture marketing policy reforms in the country, the first question that comes to the mind is who should do it - State Government or Union government. Who's domain is this?

Before I go into the detailed analysis, let me explain the legal position of the Union & State domain under the constitution. 

This post is concerned with a ‘Doctrine of Pith and Substance’. The basic purpose of this doctrine is to determine under which head of power or field i.e. under which list (given in the Seventh Schedule) a given piece of legislation falls.

This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence. 

This doctrine found its place first in the case of Cushing v. Dupey. In this case, the Privy Council evolved the doctrine, that for deciding whether impugned legislation was intra vires, regard must be had to its pith and substance.

Doctrine is the foundation of the Indian Federal structure:

Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or an essential part of something’.

The doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. Thus, if the substance falls within the Union List, then the incidental encroachment by the law on the State List does not make it invalid.

Need for the Doctrine of Pith and Substance in the Indian Context:

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for the adoption of this doctrine is that if every legislation were to be declared invalid because it encroached powers, the powers of the legislature would be drastically circumscribed.

“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution.

The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of enactment are impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude.”

Incidental or Ancillary Encroachment:

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce succinctly explained the situation in which a State Legislature dealing with any matter may incidentally affect any Item in the Union List. The court held that whatever may be ancillary or incidental effects of a Statute enacted by a State Legislature, such a matter must be attributed to the Appropriate List according to its true nature and character.

Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will not affect the competence of the State Legislature to enact the law in question.

Also, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid.

However, the situation relating to Pith and Substance is a bit different concerning the Concurrent List. If a Law covered by an entry in the State List made by the State Legislature contains a provision which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the provisions of any existing law concerning that matter in the Concurrent List, then the repugnant provision in the State List may be void unless it can coexist and operate without repugnancy to the provisions of the existing law.

Important Supreme Court Judgments on the Doctrine of Pith and Substance

There are hundreds of judgments that have applied this doctrine to ascertain the true nature of the legislation. The prominent judgments of the Supreme Court of India that have interpreted and resorted to this doctrine are given below:

1.The State of Bombay and Another vs F.N. Balsara- This is the first important the judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of legislation to determine the List under which it falls.

2. Ms. Atiqa Begam & Anr. v. Abdul Maghni Khan & Ors.– The court held that to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and the character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this the investigation, not the form alone which the statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose, the legislation must be scrutinized in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.– Doctrine of Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature concerning with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.

This doctrine is an established principle of the law in India recognized by various Courts.

In brief, we can say:

Whenever there is a challenge to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and go for detailed analysis and examination.

If it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List.

In the next article, we will discuss what are the constitutional provisions related to the following activities:

• Agriculture
• Agriculture produce
• Market
• Agriculture trade
• Commerce
• Import and Export

Please keep in mind that all these terminologies are not the same and are NOT interchangeable. The wrong interpretation was leading to confusion, concerns and disputes.

In the next article, we will discuss these issues in detail. 

Follow this blog and visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Constitution of India : Doctrine of Pith and Substance

Constitution of India : Doctrine of Pith and Substance  

Introduction

This post is concerned with a ‘Doctrine of Pith and Substance’. The basic purpose of this doctrine is to determine under which head of power or field i.e. under which list (given in the Seventh Schedule) a given piece of legislation falls.

Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or essential part of something’.

Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. Thus, if the substance falls within Union List, then the incidental encroachment by the law on the State List does not make it invalid.

This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence. 

This doctrine found its place first in the case of Cushing v. Dupey. In this case the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.

Need for the Doctrine of Pith and Substance in the Indian Context

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.

“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution.

The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude.”

Incidental or Ancillary Encroachment:

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce, succinctly explained the situation in which a State Legislature dealing with any matter may incidentally affect any Item in the Union List. The court held that whatever may be the ancillary or incidental effects of a Statute enacted by a State Legislature, such a matter must be attributed to the Appropriate List according to its true nature and character.

Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will not affect the Competence of the State Legislature to enact the law in question. Also, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid.

However, the situation relating to Pith and Substance is a bit different with respect to the Concurrent List. If a Law covered by an entry in the State List made by the State Legislature contains a provision which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List, then the repugnant provision in the State List may be void unless it can coexist and operate without repugnancy to the provisions of the existing law.

Important Supreme Court Judgments on the Doctrine of Pith and Substance

There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a legislation. In the present post, I will discuss some of the prominent judgments of the Supreme Court of India that have resorted to this doctrine.

1.The State of Bombay And Another vs F.N. Balsara- This is the first important judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of a legislation for the purpose of determining the List under which it falls.

2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.– The court held that in order to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this investigation, not the form alone which the statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.– Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.

This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. 

Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List.”

Constitution of India: Legislative Process under Constitution of India

Constitution of India: Legislative Process

Procedure regarding Enactment of Legislation

By: 
Vijay SARDANA
Advocate, Delhi High Court

Introduction

The basic function of Parliament is to make laws, amend them or repeal them. The process of law-making or the legislative process, in relation to Parliament, may be defined as the process by which a legislative proposal brought before it, is translated into the law of the land.

All legislative proposals are brought before Parliament in the form of Bills. A Bill is a statute in the draft form and cannot become law unless it has received the approval of both the Houses of Parliament and the assent of the President of India.

The process of lawmaking begins with the introduction of a Bill in either House of Parliament. A Bill can be introduced either by a Minister or a Member other than a Minister. 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.

GOVERNMENT BILLS Notice of Bill

A Minister who desires to introduce a Bill has to give seven days’ notice in writing of his intention to move for leave to introduce the Bill. The Speaker may, however, allow the motion to be moved at a shorter notice.

Circulation of Bill

A Bill is not included in the list of business for introduction until copies thereof have been made available for the use of members at least two days before the day on which the Bill is proposed to be introduced. This requirement of prior circulation, however, does not apply to Appropriation Bills, Finance Bills and such secret Bills as are not included in the list of business. 

The Speaker may, however, permit the introduction of a Bill without prior circulation or after circulation for a period shorter than two days if the Minister concerned gives adequate reasons in a Memorandum for consideration of the Speaker as to why the Bill is proposed to be introduced earlier than two days after circulation of copies or without prior circulation.

Passage of Government Bills

A Bill undergoes three readings in each House, ie., the Lok Sabha and the Rajya Sabha, before it is submitted to the President for assent.

First Reading

The First Reading refers to the motion for leave to introduce a Bill in the House on the adoption of which the Bill is introduced.

In the case of a Bill originated in and passed by Rajya Sabha, the first reading may be said to refer to the laying on the Table of the House of the Bill, as passed by Rajya Sabha.

Procedure regarding opposing the introduction of a Bill 

Motion for leave to introduce a Bill may be opposed by any member on general grounds or on the ground that the Bill initiates legislation outside the legislative competence of the House. Any member desirous of opposing the introduction of a Bill has to give a notice to that effect specifying clearly and precisely the objections to be raised by 1000 hours on the day on which the Bill is included in the list of business for the introduction.

If the motion for leave to introduce a Bill is opposed, the Speaker may allow a brief statement from the member who opposes the motion and the Minister who moved the motion. Thereafter, the motion is put to the vote of the House. However, if the motion is opposed on the ground of legislative competence, the Speaker may permit a full discussion thereon.

It is an accepted practice in Lok Sabha that the Speaker does not give any ruling on the point whether a Bill is constitutionally within the legislative competence of the House or not. The House also does not take a decision on the specific question of vires of a Bill. After debate, the motion for leave to introduce a Bill is put to vote of the House by the Speaker.

Publication of Bills in the Gazette

After a Bill has been introduced, it is published in the Gazette of India.

A Bill may, however, be published in the Gazette of India even before its introduction in the House if on a request made by the Minister-in-charge of the Bill, the Speaker permits such publication. If a Bill has been published in the Gazette before introduction, members cannot, later on, oppose its introduction in the House. 

It is not necessary to move a motion for leave to introduce a Bill which has already been published in the Gazette under the orders of the Speaker. 

The next stage in respect of such a Bill is for introduction as distinct from leave to introduce. 

However, if changes are made in the Bill after it has been published in the Gazette, it becomes a new Bill and the motion for leave to introduce the Bill has to be moved as in the case of any other Bill.

Bills which can be introduced only in Lok Sabha

A Bill may be introduced in either House of Parliament. However, a Money Bill cannot be introduced in Rajya Sabha. It can only be introduced in Lok Sabha with prior recommendation of the President for its introduction in Lok Sabha. 

If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker thereon is final.

Like Money Bills, Bills which, inter alia, contain provisions for any of the matters attracting sub-clauses (a) to (f) of clause (1) of Article 110 can also not be introduced in Rajya Sabha. They can be introduced only in Lok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to such Bills.

Article 110 in The Constitution Of India:

110. Definition of Money Bill

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of money into or the withdrawal of money from any such Fund;

(d) the appropriation of money out of the consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub-clause (a) to (f)

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final

(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under Article 109, and when it is presented to the President for assent under Article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 7]

Reference of Bills to Departmentally Related Standing Committees

One of the important functions of the Departmentally Related Standing Committees is to examine such Bills introduced in either House as are referred to them by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make a report thereon in the given time. Normally, a time period of three months is given to the Committees for the presentation of the report.

As per prevailing practise, normally all Government Bills, except Bills to replace Ordinances, Bills repealing obsolete laws, Appropriation Bills, Finance Bills and Bills of technical or trivial nature, are referred to the concerned Departmentally Related Standing Committees for examination and report.

The reports of the Standing Committees have persuasive value and are treated as considered advice by the Government. In case, the Government accepts any of the recommendations of the Committee, it may bring forward official amendments at the consideration stage of the Bill or may withdraw the Bill reported by the Standing Committee and bring forward a new comprehensive Bill after incorporating such of the recommendations of the Standing Committee as are acceptable to the Government.

Second Reading

The Second Reading of the Bill consists of two stages.

First Stage of Second Reading

The First Stage constitutes discussion on the principles of the Bill and its provisions generally on any of the following motions—that the Bill be taken into consideration; or that the Bill be referred to a Select Committee of the House; or that the Bill be referred to a Joint Committee of the Houses with the concurrence of the other House; or that the Bill be circulated for the purpose of eliciting opinion thereon. A Money Bill, however, cannot be referred to a Joint Committee of the Houses.

At this stage, amendments may also be moved by any member to the motion moved by the Minister as per the provisions of Rule 75 of Rules of Procedure and Conduct of Business in Lok Sabha.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 2]

In the case of a Bill originated in and passed by Rajya Sabha, the motion that the Bill, as passed by Rajya Sabha, be taken into consideration, can only be moved. In this case, any member may, if the Bill has not already been referred to a Joint Committee of both the Houses, move as an amendment that the Bill be referred to a Select Committee of the House.

Bills before a Select/Joint Committee

If a Bill is referred to a Select or a Joint Committee, it considers the Bill clause-by-clause just as the House does. Amendments can be moved to various clauses by the members of the Committee.

A Select Committee or a Joint Committee of both the Houses entrusted with the consideration of a Bill issues a press communique and invites memoranda from the public at large as well as from specialised interest groups to place materials and points of view before the Committee. The Committee may also hear expert evidence and representatives of special interest groups affected by the measure.

Circulation of a Bill for eliciting public opinion

If a Bill is circulated for the purpose of eliciting public opinion thereon, such opinions are obtained through the agency of the State Government.

Where a Bill has been circulated for eliciting opinion and opinions have been received and laid on the Table of the House, the next motion in regard to such a Bill must be for its reference to a Select or a Joint Committee. It is not ordinarily permissible at this stage to move a motion for consideration of the Bill, unless the Speaker allows.

Petitions on Bills before Parliament

The Parliamentary device of petitions on Bills provides a democratic touch to the process of legislation. Petitions from the public on Bills before the Houses are examined by the Committee on Petitions and may be circulated to the members of the House in extenso or in a summary form so that the members may be aware of the public views on a particular legislative proposal.

Second Stage of Second Reading

The Second Stage of the Second Reading consists of clause-by-clause consideration of the Bill, as introduced in Lok Sabha or as reported by a Select or a Joint Committee or as passed by Rajya Sabha, as the case may be. The discussion takes place on each clause of the Bill and amendments can be moved at this stage. Each amendment and each clause is put to the vote of the House. The amendments become part of the Bill if they are accepted by a majority of members present and voting. After the clause(s), the schedules, if any, clause one, the Enacting Formula and the Long Title of the Bill have been adopted with or without amendments by the House, the Second Reading is deemed to be over.

Third Reading

The Third Reading refers to the discussion on the motion that the Bill or the Bill, as amended, be passed. 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 is necessary for the purpose of arguments. Only formal, verbal or consequential amendments are allowed at this stage.

Bills in the other House

After a Bill has been passed by Lok Sabha, it is transmitted to the Rajya Sabha for concurrence with a message to that effect. On receipt of the message, the Bill is first laid on the Table of Rajya Sabha, which is deemed as the First Reading stage of the Bill in that House. Thereafter, the Bill again goes through the same stages, viz., the Second Reading stage comprising either the discussion on the motion that the Bill be taken into consideration or its reference to a Select Committee of that House and the Third Reading stage. Rajya Sabha may either agree to the Bill, as passed by Lok Sabha. or return the Bill with amendments to Lok Sabha for its concurrence.

Rajya Sabha is, however, required to return a Money Bill passed and transmitted by Lok Sabha within a period of 14 days from the date of its receipt. Rajya Sabha may return a Money Bill transmitted to it with or without recommendations. It is open to Lok Sabha to accept or reject all or any of the recommendations of Rajya Sabha.

However, if Rajya Sabha does not return a Money Bill within the prescribed period of 14 days, the Bill is deemed to have been passed by both the Houses of Parliament at the expiry of the said period of 14 days in the form in which it was passed by Lok Sabha.

After the Bill has been agreed to by both the Houses, either without amendment or with such amendments only as are agreed to by the House, it is submitted to the President for his assent.

Constitution Amendment Bills

The Constitution vests in Parliament the power to amend the Constitution. Constitution Amendment Bills can be introduced in either House of Parliament. While motions for the introduction of Constitution Amendment Bills are adopted by simple majority, 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 for the adoption of effective clauses and motions for consideration and passing of these Bills. Constitution Amendment Bills affecting vital issues as enlisted in the proviso to Article 368(2) of the Constitution, after having been passed by the Houses of Parliament, have also to be ratified by not less than one-half of the State Legislatures.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 8]

Withdrawal of Bills

The Minister-in-charge of a Bill, who has introduced the Bill in Lok Sabha, may at any stage of the Bill move for leave to withdraw the Bill on the ground that:

(a)   the legislative proposal contained in the Bill is to be dropped, or

(b)   the Bill is to be replaced subsequently by a new Bill which substantially alters the provisions contained therein; or

(c)    a Bill is to be replaced subsequently by another Bill which includes all or any of its provisions in addition to other provisions.

and if such leave is granted, no further motion is made with reference to the Bill.

If a Bill passed by Rajya Sabha is pending in Lok Sabha, a motion recommending withdrawal of the Bill, on being adopted by the House, is transmitted to Rajya Sabha for concurrence. If Rajya Sabha concurs in the motion, the motion for withdrawal of the Bill is moved in Lok Sabha and proceeded with in the usual manner and when the motion is adopted, a message to that effect is sent to Rajya Sabha. A similar procedure is followed in Rajya Sabha in the case of a Bill passed by Lok Sabha and pending in Rajya Sabha.

Joint Sitting

If a bill passed by one House is rejected by the other House, or the Houses have finally disagreed as to the amendments to be made in the Bill, or more than six months lapse from the date of receipt of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has lapsed by reason of a dissolution of Lok Sabha, call a Joint Sitting of the two Houses to resolve the deadlock.

The President, after consultation with the Chairman, Rajya Sabha and the Speaker, Lok Sabha, has made the Houses of Parliament (Joint Sitting and Communications) Rules in terms of clause (3) of Article 118 of the Constitution to regulate the procedure with regard to Joint Sitting of the Houses.

The Bill is deemed to have been passed by both the Houses in the form it is passed by a majority of the total number of members of both the Houses present and voting at the Joint sitting.

There cannot be a joint sitting of both Houses on a Money Bill or a Constitution Amendment Bill.

The Constitution empowers the President to take steps for resolving a deadlock on a Bill between the two Houses but it is not obligatory upon him to summon the Houses to meet at a Joint Sitting. However, once the President has notified his intention to summon the Houses for a Joint Sitting, even the subsequent dissolution of Lok Sabha does not stand in the way of proceeding with the Bill. There is no time limit as to when the Joint Sitting should take place. It may take place at any time subsequent to the notification.

Assent of the President

The Secretariat of the House which is last in possession of a Bill initiates action for obtaining the assent of the President thereon. In the case of a Money Bill or a Bill passed at a joint sitting of the Houses, the Lok Sabha Secretariat obtains the assent of the President. The Bill becomes an Act after the President’s assent has been given.

The President can give his assent or withhold his assent to a Bill. The President can also return the Bill, if it is not a Money Bill, with his recommendations to the Houses for reconsideration, and if the Houses pass the Bill again with or without amendments, the President can not withhold his assent to a such a Bill. The President is bound to give his assent to a Constitution Amendment Bill presented to him for assent.

[Legislative process in regard to Government Bills is governed by various provisions of the Constitution, the Rules of Procedure and Conduct of Business in Lok Sabha and the Directions by the Speaker, which include, inter alia, provisions contained in Articles 107 to 111, 117, 245 to 255 and 274 of the Constitution, Rules 64 to 159, 218, 219, 331E, 331H and 335 of the Rules of Procedure and Directions 19A to 26 and 31 to 37 of the Directions by the Speaker.]