Comparative study of legislative process in USA, UK AND India

“There is no higher authority than Parliament, and no legal restraint on the capacity of Parliament to do whatever it wishes.” AV Dicey (1885)

INTRODUCTION

Legislation or law-making is deemed to be the predominant function of Parliament. The initiative in law-making is mostly with the executive although private members can also initiate proposals. 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 the Parliament. Bills broadly falls into categories like;

ON THE BASIS OF PRESENTATION:

Government Bills(Presented by a Minister)
Private Members Bills(Presented by a private member)

ON THE BASIS OF CONTENT:

Ordinary Bills
Money Bills and Finance Bills
Constitution ( Amendment ) Bills
Consolidating Bills
Amending Bills
Bill to replace ordinance
Expiring Laws (Continuance) Bills

Government Bills are drafted by Government draftsmen and introduced in either House of Parliament by the Minister concerned. Normally, copies of the Bill are made available to the members before the date on which it is proposed to be introduced. No Bill can become law until it has received approval of the Houses of Parliament and assent of the President or Crown.

Thus the legislative process is the sequence of steps required for laws to move through the system, from ideas or proposals to formally adopted legislation. The Bills proceed through committees, subcommittees, hearing, debates and amendments. The underlying rational for this process in an emphasis on the protection of the minority and allowing ample opportunity for all sides to be heard and make their views known. However only a small percentage of the Bills make it all the way through the process for final approval. The legislative process differs in each country. Given below here is a discussion upon the legislative processes in USA, UK and INDIA.

LEGISLATIVE PROCESS IN INDIA

India is a Democratic country with Republic in character and Federal in structure, and embodies salient features of Parliamentary system of Government. Laws are made separately ie; By the Union Government/Federal Government for the whole country and by the State Governments for their respective states. The Union Government consist of the President and two legislative houses- Lok Sabha and Rajya Sabha. Similarly, states maybe having bicameral legislatures or unicameral legislature. The Constitution of India which is the supreme law of the state empowers the Parliament to make law. The whole legislative process requires the participation of legislative Counsel, the Executives, Ministers, the Legislatures, the Head of the State and sometimes the people also. Broadly the legislative process may be divided into three stages:

Preparatory process
Drafting process; and
Parliamentary process.

PREPARATORY PROCESS:

Every year our Parliament is producing many legislations. For a time- bound implementation of legislative program there developed some strategies or process like:

CONCEPTUAL PROCESS – From analysis of the current Legislations in India, it can be seen that a sizable portion of legislations derive its source from recommendations of either the Law Commission or any Committee constituted for that purpose including Government Departmental Committees and Standing Statutory Authorities- generally professional groups. Besides these sources there are always some legislations passed by the legislature purely to cooe with the contemporary social problem sand popular demands. Then, there is a tendency on the part of the legislatures to pass a law or amend the existing law on a social problem whenever there is an uproar in the minds of the people to remove that social evil. Thus it may be said that the legislation in India, sometimes become a political tour in the hands of the legislature to supress any social unrest.

CONSULTATIVE PROCESS-The object of consultative process at the initial stage of the legislation is primarily aimed at obtaining the assessment of practitioners who will ultimately implement the provisions of the proposed legislation the various representative organizations play an active part in the consultative process of legislation.

GREEN AND WHITE PAPERS-Generally Government statement in writing setting out a plan or policy to a particular matter is known as White or Green paper. Sometimes a bill is preceded by a Green or White paper setting out the Government’s plans in advance. In India we use the term White paper only.

CABINET CONTROL-In India the ultimate power of control over functions of the Government were vested in the Cabinet or Council of Ministers. The Cabinet is collectively responsible to Lok Sabha and this responsibility is join and indivisible. The essence of this collective responsibility is that a Minister is free to express his dissent when a policy is in the stage of discussion, but after a decision is taken every Minister is expected to stand by it without any reservation. Thus, before presenting a Bill in the Parliament the Cabinet generally discuss and settle the policy involved in the proposed legislation except very urgent matter.

DRAFTING PROCESS:

There are various steps of drafting process that a draftsman has to overcome before presentation of the Bill in the Parliament like:

LEGISLATIVE COUNSELLING-In recent days, drafting of legislation is regarded as a professional work and the legislative draftsmen are known as Legislative Counsel. In India there are Legislative Counsels in the Legislative Wing of the Government of India under the Indian Legal Service. The drafting process starts with the arrival of some sort of instructions from the department responsible for the Bill. There may be a combination of written material generated inside or outside the department and oral discussions. Once the draft Bill is sent, various proposals for improvement and the criticisms on the draft will arrive. The proposals for improvement generally come from the agency or the department who is to either enforce the law or affected by the proposed law. The draftsman should always be open in his mind to consider any proposals or suggestions for improvement or reconsider the criticism made against any provision of the draft Bill. The Bill that has been introduced in the Parliament sometimes proposed to be circulated for the eliciting opinion thereon. After opinions on the Bill have been received they are examined by the Legislative Counsel to eliminate redundant matter and to ensure that the language used is decorous and temperate. After editing and consolidation, these opinions are printed as ‘Papers to the Bill’ and are laid on the table by the member in charge of the Bill. The draftsman acts as an advisor to the member or Minister in charge of the Bill and plays a vital role in dissolving the conflicts or disputes raised against the Bill.

PARLIAMENTARY PROCESS:

One of the most important function of Parliament is to LEGISLATE. Legislative Process includes various steps like:

PRESENTATION OF A BILL – All legislative proposals have to be brought in the form of Bill and to be presented before the Parliament. The presentation of a Bill involves three stages. Each Bill undergoes three readings:

THE FIRST READING means motion for leave to introduce a Bill on the adoption of which the Bill is introduced; or introduction of a Bill which had already been published in the Official Gazette.

THE SECOND READING consists of two stages. The first stage constitutes discussion of the principles of the Bill and its provisions generally on any motion such as that it be taken into consideration; that it be referred to a Select Committee of Lok Sabha or to Joint Committee of the Houses; or that it be circulated for the purposes of eliciting opinion. The second stage signifies clause-by-clause consideration of the Bill as introduced or as reported by a Select or Joint Committee as the case may be.

THE THIRD READING refers to the discussion on the motion that the Bill or the Bill as amended, be passed.

BILL IN THE OTHER HOUSE:

After the Bill has been passed by the originating House, it is transmitted to the other House for its concurrence with a message to that effect. Here, again it goes through the three readings. If the Bill is passed as it has been transmitted by the originating House, it is send to the President for his assent. If the Bill is passed with amendments, it is returned to the first House where it is laid on the Table and a motion is moved for consideration of the amendments. If the House agrees to the amendments proposed by the other House, the Bill is deemed to have been passed as amended, by both the Houses. If, the originating House does not agree to the amendments proposed, the bill is send again to the latter to get its concurrence. If the other House insists on the amendments proposed by it, the Bill is returned to the originating House with a message to that effect. In that case, the Houses are deemed to have finally disagreed as to the amendments.

JOINT SITTING OF THE TWO HOUSES:

When the Houses have finally disagreed to the amendments, a joint sitting of the two Houses may be summoned by the President for the purpose of deliberating and voting on the Bill. This does not however apply to a Money Bill. If at a joint sitting the Bill, with such amendments is passed by a majority of the total number of members of the Houses then present and voting, it is deemed to have been passed by both the Houses. Eg : The Dowry Prohibition Bill,1961.

ASSENT TO BILLS:

After a Bill has been passed by both the Houses of Parliament observing all the constitutional provisions, it is presented to the President for his assent (Art.111).President may give his assent in the form “I assent to this Bill.” But President may withhold his assent or return the Bill if it is not a Money Bill with a message for consideration the desirability of introducing any amendments as he may recommend in his message but when the Bill so returned by the President has been reconsidered by the House and is again passed by the Houses with or without amendment and presented to the President for assent, the President does not withhold assent therefrom.

PRIVATE MEMBER’S BILL:

Members of Parliament other than Ministers are called Private Members and the Bills presented by them are known as Private Member’s Bill. Since Independence, only 14 Private Member’s Bills were passed in India. Private member’s Bill may be introduced in the Parliament following the special procedural features. The period of notice of a motion for leave to introduce a private member’s Bill is one month unless the Speaker allows the motion to be made at shorter notice. The notice is accompanied by a copy of the Bill together with the Statement of Objects and Reasons. Due to complexities in the procedure, generally the private Bills are either withdrawn or get lapsed. Not more than four Bills can be introduced by a member during a session. After the Bills have been introduced and before these are taken up for consideration in the House, the Committee on Private Member’s Bills and Resolutions classifies the Bills according to their nature, urgency and importance. The Bills are included in the List of Business for consideration in the order of priority determined by ballot.

LEGISLATIVE PROCESS IN UK

UK is having a Parliamentary form of Government consisting of the Queen, House of Lords and House of Commons. The Parliament of Britain is a Sovereign body- uncontrolled and with unlimited powers as it is not having a written constitution. The legislative process in UK is more or less same as in India. Parliament make laws and the legislative proposals are in the form of Bills. There are mainly three types of Bill: Public Bill, Private Bill and Hybrid Bill. A Public Bill is one which will affect the general public and can be categorized as Government Bill and Private Member’s Bill. A Government Bill starts in the House of Commons and is introduced by a Minister whereas a Private Member’s Bill is introduced by any member of the Parliament. A Private Bill is a proposal of law that would apply to a particular individual or group of individuals or corporate entity. The individual persons or organisations, such as local authorities introduce this type of Bill in the Parliament through a petition desiring the Bill. A Hybrid Bill is a mixture of Public and Private Bills. Usually they are Government Bills that specifically affect particular individual or group. The pressure to enact a law comes from various sources like political manifesto, governmental department, Royal Commission, pressure groups such as Non-Governmental Organisations or Lobbies, Response to public opinion, Law commission, etc….. Some Bills are modelled or inspired from International treaties also.

PRE-PARLIAMENTARY STAGE: (Green Paper, Consultation, White Paper, Parliamentary Draftsman)

A Green Paper in simple terms is the lowest form of the policy formulated by the cabinet. It contains proposals for future Government policy to be raised for debate and discussion and out of which the final best policy will be opted. Then it will go to the next stage called Consultation where it will be refined after taking into account all the feedback and recommendation and made into a stronger version, which is known as White Paper. It is this White Paper that will be brought before the Parliament. The White Paper will contain in-depth proposals for Legislation. Its introduction in the House is made by the Secretary of state whose department sponsoring the policy and in a statement the latter would explain the contents of White Paper and the impact it will have on future Legislations. After this the Parliamentary Draftsman, who is from the office of the Parliamentary Counsel, will draft the White Paper into a Bill. When the Bill receives approval from the cabinet, it marks the end of Pre-Parliamentary stage and moves to next stage.

PARLIAMENTARY STAGE:

Government Public Bills start in the House of Commons and are introduced by the Cabinet Minister in charge of the Bill. The Bill has to go through various stages before becoming a law.

FIRST READING – Before the Bill goes through this stage a 24 hours notice has to be given to the Parliament. The Minister proposing the Bill has to make a Statement of Compatibility. The first reading consists of reading SHORT TITLE AND LONG TITLE. The Bill is then printed and distributed to Members for reading and this stage ends here.

SECOND READING – This stage starts with the Minister explaining the purpose, principle and effects of the Bill. The debate will take place and members can indicate the points on which the Bill needs amendments. The House will then go into voting and after receiving 50% of the votes, it moves into the next stage.

COMMITTEE STAGE – This is the stage where the Bill will be examined and refined close by close. The amendments will be considered at this stage. Provisions may be added or removed provided that they stick close to the intended subject matter of the proposed Bill.

REPORT STAGE – This stage takes place in Chamber and only amendments are discussed. After the approval the Bill with all its amendments, if any, will move into the third reading.

THIRD READING – This is the final of the Bill in the original House. The House of Commons will look at the Bill entirely with the all new amendments. No new amendments can be added to the Bill. A final vote will be taken, and if passes the Bill will move to the House of Lords for their agreement.

HOUSE OF LORDS – Here also the Bill shall go through all the stages mentioned above. After full consideration, if they agree the Bill will be sent to the original House as passed. If any amendments proposed the Bill will be sent with that affect. Once the Bill is agreed by both the Houses, it will be sent to the Queen to receive Royal Assent.

ROYAL ASSENT – This is the final stage of the process where the Queen has to formally approve the Bill and it finally becomes an Act of the Parliament.

LEGISLATIVE PROCESS IN USA

USA is technically a Constitutional Federal Republic. It is having a multilateral government. The US constitution divides the federal Government into three branches:

LEGISLATIVE- Congress; consisting of two Houses, Senate and the House of Representatives.

EXECUTIVE- President as the head.

JUDICIARY- Supreme courts and other Federal courts.

According to Article 1 of the US constitution, it grants all the Legislative power upon the Congress. The proposals for legislation may come from Congress members, lobbies, state legislature, state constituents, legislative counsel, executive agencies such as President or cabinet officers and so on. The proposals for legislation are called as Bill. A Bill can originate in either of the House. All Bills for raising revenue should originate in the House of Representatives.

INTODUCTION AND REFERRAL TO COMMITTEE – Bills can be introduced by any member in the House and they may have an unlimited number of co-sponsors. The proposed Bill is assigned its legislative number and then it is referred to the committee which has jurisdiction over the particular area of law. Then it is printed in its introduced form.

CONSIDERATION – This process is initiated by a public hearing, where the committee members hear various views on the proposed legislation. A transcript of the testimonies is taken during the hearings, and it is made available for inspection in the committee office. After the hearing, the Bill is considered in detailed in a session which is known as the “mark-up” session. At this stage, the members of the committee and propose amendments and vote for or against them.

Finally the committee determines by vote what further action should be taken on the proposed legislative measures. It can be tabled, which means that no further action will occur. In case of extensive amendments the committee usually reports a new Bill (Clean Bill), which incorporates all the approved changes. The Committee Report is the document that explains the purpose and the scope of the Bill, and the reasons for its approval.

HOUSE FLOOR CONSIDERATION – Legislative measures usually proceed to this stage after they have been reported by a committee. Sometimes it is possible that they can be brought to the floor directly. The procedure in the full House is regulated by ‘rules’. Rules are simple resolutions that determine the debate time and whether amendments will be offered. After the debate, the House votes for or against the Bill, or decides to ‘recommit’ it to committee for consideration.

SENATE STAGE – After the Bill has been approved by the House, it must be submitted to the Senate for consideration. If the senate makes changes to the draft, it must be returned to the House for further consideration and amendments. This procedure can be extremely lengthy. For this reason, usually the two bodies appoint a Conference Committee with both House and Senate members. The Conference Committee is responsible for negotiating and resolving the differences. Finally, when both bodies reach an agreement, the final version of the Bill returns to the House and the Senate for vote on final passage.

PRESIDENTIAL ACTION – The Bill that has been voted by both the House and the Senate is presented to the President for approval. If the President signs the Bill, it becomes law. The President has the right to reject the Bill. In this case, the President must return the Bill with objections to Congress within ten days from the day of presenting. And if the Congress with or without amendments pass it with two third majority those present in both the bodies, even without President’s assent the Bill automatically become law. If the President fails to return the Bill within ten days, it becomes law as if it had been signed.

The congress has the right to prevent a bill’s return by adjournment. In this case the Bill cannot become law, even if the President has not send objections to the Congress. This procedure is known as ‘Pocket Veto’. The extend of Pocket veto authority is disputable and it has not yet been determined by US courts.

CONCLUSION

In this comparative study we have gone through the different Legislative processes provided in the respective country. We can see that, even though UK, USA and India are democratic countries their way of functioning and making laws are different. Here India and USA are having written constitution while UK does not have one. India and UK are having Parliamentary form of Government while USA follow a Presidential system. India and USA are having a Federal structure but India is more unitary in nature comparing to USA. The Crown presides as the head of UK Parliament while USA and India are having President as the head of the state. In UK Legislature is having the uncontrolled power to Legislate. But in India and USA the power to Legislate is controlled by the constitution which is the supreme law of land. But comparing the constitution of both countries, India is having a more flexible one comparing to USA. Though the Constitution of India is the youngest it still holds more constitutional amendments (120) than that of USA’s (27), which is one of the oldest constitutions. To sum up, the legislative process differ from nation to nation, and each one is having a unique process which enables the government to work efficiently.

The legislative process begins as an idea or concept that can arise from various sources and ends as an enactment of law. It is a continuous process which is well organised and it is very complex by this process the interest of the society meets with the interest of the state. Society needs stable legal system, reflecting the changing demands and interests of the society. Fulfilling this task the law-making process must be based on democracy and science in order to reflect and determine the development of the society. To some extend the indicator of the effectiveness of the law-making process is the law enforcement. The law-making establishes the model of the behaviour- the legal norm but the changing society often fills it with new content. The greater part of the law-making process is a political process and in principle cannot be regulated by law. The legal scholars may formulate the main principles of this process. These principles are constitutional principles of the modern state and are binding upon the state and ensures the rights of the society, its groups and individual. The modern constitutions recognize and determine the state as the social, rule-of-law state, democratic based on the principle of separation of power. In fact this principles determine the place of the legislative bodies in the process and the character of the process.

REFERENCES

Subash. C. Kashyap: Parliamentary Procedure ( 3^rd edition )
M. N. Kaul & S. L. Shakder: Practice and Procedure of Parliament (5^th edition )
N. K. Chakraborti: Principles of Legislation and Legislative drafting ( 2^nd edition )
M. V. Pylee: Select Constitutions of the World ( 2^nd edition )
Terence Ingman: The Legal Process ( 9^th edition )
Erskine May: Parliamentary Practices ( 21^st edition )