- Related readings :- Parliament of India,
- How a bill becomes an act in Parliament – click here ( scroll the page )
- Difference between a bill and an act – – click here ( scroll the page )
- List of Central Government Ordinances since 2003 ( scroll the page )
The laws of India are made by the union government for the whole country and by the state governments for their respective states as well as by local municipal councils and districts. 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 states with bicameral legislatures requires that proposed bills be passed, at least in the state’s Lower House or the Vidhan Sabha and 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 they don’t have a Vidhan Parishad.
Constituent power of Parliament
The process of addition, variation or repeal of any part of the Constitution by the Parliament under its constituent powers, is called amendment of the Constitution. The procedure is laid out in Article 368. An amendment bill must be passed by each House of the Parliament by a majority of the total membership of that House when at least two-thirds of the members are present and voting. In addition to this, certain amendments which pertain to the federal and judicial aspects of the Constitution must be ratified by a majority of state legislatures. There is no provision for a joint sitting of the two houses (Lok Sabha and Rajya Sabha) of the Parliament to pass a constitutional amendment bill. The basic structure of the Indian Constitution cannot be altered or destroyed through constitutional amendments under the constituent powers of the Parliament without undergoing judicial review by the Supreme Court. After the 24th Amendment, Parliament in its constituent capacity can not delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
Proclamation of emergency per Article 352 (6) shall be ratified by the Parliament similar to its constituent power. When president’s rule is invoked in a state using Article 356 (c) and its proclamation contains such incidental and consequential provisions suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the state for giving effect to the objects of the proclamation, the proclamation needs to be approved by the Parliament under its constituent power (i.e. not by simple majority) after the 24th Amendment.
The legislative power of the states and the centre are defined in the Constitution and these powers are divided into three lists. The subjects that are not mentioned in any of the three lists are known as residuary subjects. Subject to the provisions in the Constitution elsewhere, the power to legislate on residuary subjects, rests with Parliament or state legislative assembly as the case may be per Article 245. Deemed amendments to the Constitution which could be passed under legislative powers of Parliament are no more valid after the addition of Article 368 (1) by 24th Amendment.
The Union List consists of 100 items (previously 97 items) on which the Parliament has exclusive power to legislate.
The State List consists of 61 items (previously 66 items) where a state legislative assembly can make laws applicable in that state. But in certain circumstances, the Parliament can also legislate temporarily on subjects mentioned in the State List, when the Rajya Sabha has passed a resolution with two-thirds majority that it is expedient to legislate in the national interest per Articles 249 to 252 of the Constitution.
The Concurrent List consists of 52 (earlier 47) items where both Parliament and a state legislative assembly can make laws in their domains subject to Articles 254 of the Constitution.
Nature of peoples’ mandate
The powers of a ruling party or co-alliance of the union is depending on the extent of the mandate it receives from the elections at central and state levels. These are:
- commanding simple majority in the Lok Sabha only capable to run the government by passing money bills only. President can not issue ordinances on the advice of the union cabinet alone as there is the possibility of Rajya Sabha not according to its approval.
- commanding simple majority in the Lok Sabha and Rajya Sabha (together or separately) capable to run the government by its legislative powers only. With a simple majority in Rajya Sabha, the ruling party or co-alliance can remove the vice president and elect a new vice president per Article 67(b)
- commanding two-thirds majority in both Lok Sabha and Rajya Sabha separately capable to run the government by its constituent and legislative powers. The ruling government has full powers to impeach the president and judges of Supreme Court / high courts when charges of violating the Constitution are established by a judicial inquiry.
- commanding two-thirds majority in either house of Parliament capable to run the government by its legislative powers only. As per the procedure given by Article 61(3) or 124(4 & 5) or 217(1.b), the President and judges of Supreme Court or high courts can be removed after charges of misbehaviour or incapacity are established by means of judicial inquiry.
At the state level, a simple majority in the legislative assembly (Vidhan Sabha) is enough to exercise all its constitutional powers except for deciding to have or abolish the legislative council per Article 169. Per Article 252, approval of state legislative council, if existing, is also required to permit the Parliament in making laws which are exclusively reserved to state legislative assembly.