Bill

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Bill

Introduction

A “Bill” is the fundamental instrument by which legislative policy becomes law in India. It is a proposal for a new statutory enactment or for altering an existing statute. For practitioners, mastery of the lifecycle of a Bill — from drafting and introduction to passage and assent — is essential: defects in subject-matter competence, procedure or form frequently determine whether a law survives judicial scrutiny. This article unpacks the core constitutional and statutory framework, shows how the concept functions in everyday parliamentary and litigation practice, highlights pivotal cases, and offers concrete tactical guidance for litigators and legislative drafters.

Core Legal Framework

Primary constitutional provisions and statutory sources that govern Bills in India:

  • Constitution of India
  • Article 245–246: Legislative competence — Parliament and State Legislatures may make laws within distributed entries of the Seventh Schedule; Parliament’s law-making subject to the Constitution.
  • Article 107: Introduction and passing of Bills (general requirement of passage by both Houses except as otherwise provided).
  • Article 108: Joint sitting for resolving deadlocks between Houses (except Money Bills).
  • Article 110: Definition of “Money Bill” — lists matters (taxation, appropriation from Consolidated Fund, raising loans, etc.). Important: Article 110(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 shall be final.”
  • Article 109: Special procedure for Money Bills — Rajya Sabha can only recommend; Lok Sabha may accept or reject; if not returned within 14 days, deemed passed.
  • Article 111: Assent to Bills — President’s options (assent, withhold, or return for reconsideration — except Money Bills which cannot be returned).
  • Article 123: Power of the President to promulgate Ordinances when Parliament is not in session (temporary law-making power).
  • Article 368: Procedure for amendment of the Constitution (special majority and, in some cases, ratification by States).
  • Article 122: Courts restrained from inquiring into proceedings of Parliament, but subject-matter competence and constitutional validity of laws is justiciable.
  • State analogues:
  • Article 200: Governor’s assent to State Bills — options include assent, withholding, reservation for President’s consideration; Article 213 governs Governor’s Ordinances.
  • Parliamentary rules and practice:
  • Rules of Procedure and Conduct of Business, Lok Sabha and Rajya Sabha — govern introduction, committee referral, and private members’ business.
  • Standing Committees and Select Committees — statutory/parliamentary machinery for scrutiny.

Other important statutory/administrative materials: Statements of Objects & Reasons, Explanatory Notes, Financial Memoranda, and pre-legislative consultation papers (where used).

Practical Application and Nuances

This section addresses how “Bill” operates in practice — key stages, tactical levers, typical defects and how courts deal with them.

  1. Stages of a Bill (practitioner view)
  2. Drafting and vetting: Government Bills are normally drafted by nodal ministry with legal services/legislative drafters; vetted by Department of Legal Affairs/Legislative Department and cleared by Cabinet. Private Members’ Bills are drafted by the member and must conform to House rules.
  3. Introduction (First Reading): Bill introduced by a Minister (Government Bill) or a member (Private Member). For Money Bills, only a Minister can introduce in Lok Sabha.
  4. Referral to Committee (optional/typical): Bills are often referred to Department-related Standing Committees or Select Committees for scrutiny — crucial for improving law and building parliamentary record.
  5. Second Reading (principle + clause-by-clause): General debate followed by detailed examination and amendments.
  6. Third Reading and Passage: Final form approved by each House (subject to Money Bill special procedure).
  7. President/Governor’s assent: Law comes into force as an Act upon assent (or by notification with commencement date).

  8. Delegated legislation: Empowered authorities make rules; ensure clear enabling clause and legislative safeguards.

  9. Money Bill vs Ordinary/Financial Bill — why it matters

  10. Money Bills enjoy a truncated Rajya Sabha role (recommendations only, and time-limited). The Speaker’s certificate under Article 110(3) is decisive in parliamentary practice. In litigation, challenges to Money Bill certification have been brought and generate high-stakes constitutional litigation because they affect the constitution of the legislative majority required to pass the enactment.

  11. Distinguish Money Bills from Financial Bills (which are not Money Bills but relate to finances) — the latter can be amended by Rajya Sabha in the ordinary way.

  12. Legislative competence and subject-matter errors

  13. Every Bill must fall within a legislative entry for the proposing legislature: Parliament under List I, States under List II, concurrent matters under List III (subject to Article 254). A central enactment that intrudes on State list can be struck down as ultravires. Practitioners must frame the Statement of Objects & Reasons and legislative notes to squarely state the competence basis.

  14. Example: A central law that purports to regulate ‘land’ (State entry) must invoke constitutional bases such as Entry 97 (residuary power), Entry 97 is not in Constitution — do not rely; instead use Entry 97? (Note: be careful; always anchor to correct entry — practice: cite Entries such as Entry 52 (central) etc.). — ensure departmental/legal vetting.

  15. Procedural defects that routinely attract judicial scrutiny

  16. Constitutional amendment procedure not followed: e.g., failure to secure special majority or required State ratifications under Article 368.
  17. Misclassification as Money Bill: litigants may argue that the truncated procedure denied proper legislative scrutiny.
  18. Delegation overreach: Bills enabling rule-making must provide intelligible principle; courts strike down excessive “Henry VIII” delegations.
  19. Express inconsistencies with fundamental rights or basic structure: challenge to validity in courts.

  20. Defects in assent/notification process: President/Governor’s failure to act within constitutional bounds; if Governor reserves a Bill, challenge possible (very context-specific).

  21. Evidentiary and record issues when litigating a statute

  22. Parliamentary debate and Utterances: Article 122 and Article 212 bar courts from examining parliamentary proceedings in many contexts. However, the legislative intent can sometimes be gleaned from permissible materials: Statement of Objects & Reasons, explanatory notes, and committee reports. Use these strategically; while courts may not admit speechifying from the Floor as evidence of true motive, committee reports and explanatory statements are routinely used by benches to interpret ambiguous provisions.

  23. Certified copies and parliamentary records: For challenges concerning procedure (e.g., whether a Bill was passed properly), certified records from the Lok Sabha/Rajya Sabha Secretariat and official notifications, as well as the Speaker’s certificate (for Money Bill), become crucial.

  24. Ordinances and urgency law-making

  25. When Parliament/State Legislature is not in session, executive may promulgate Ordinances (President/ Governor) under Article 123/213. Practical pitfalls: Ordinances must be laid before the Houses and lapse unless approved; their overuse or misuse invites constitutional challenge (ordinary law must follow parliamentary process).

Landmark Judgments

A short selection of authoritative Supreme Court decisions that shape how Bills and legislative action are treated in Indian law:

  • Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

  • Core principle: Parliament’s power to amend the Constitution under Article 368 is subject to the “basic structure” limitation. Any Bill seeking constitutional amendment must observe the procedure and distribution of power; violations may be struck down.

  • Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625

  • Reinforced the basic structure doctrine and struck down constitutional amendments/legislative action that destroyed the balance between Directive Principles and Fundamental Rights. Practically important when Bills seek to curtail judicial review or abrogate fundamental rights.

  • I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1

  • Held that laws placed under Ninth Schedule after the cutoff could not be insulated from fundamental rights review if they violated the basic structure. Relevant for practitioners when the executive attempts to immunize controversial laws via administrative or legislative maneuvers.

  • (Treat the Speaker’s certificate and Money Bill jurisprudence as fact-sensitive)

  • Note: Article 110(3) declares the Speaker’s decision final on classification as a Money Bill. Courts have been cautious about interfering with parliamentary internal processes (Article 122), but issues concerning competence and constitutional procedure remain justiciable when the violation strikes at the constitutional distribution of power or basic structure.

(Practitioners should check the latest case-law on Money Bill certification and Speaker’s finality — the area has been the subject of recent contentious litigation and evolving precedents.)

Strategic Considerations for Practitioners

Tactical advice for drafters, parliamentary counsel, litigation lawyers and public policy advocates:

  1. For legislative drafters and government counsel
  2. Anchor competence: Always identify the constitutional entry supporting a Bill and explain it in the Statement of Objects & Reasons and Explanatory Memoranda.
  3. Use pre-legislative consultation and committee vetting: Departmental Standing Committee reports provide a parliamentary record and strengthen defensibility in court.
  4. Avoid overbroad delegation: Provide clear intelligible principle and procedures where powers are delegated to the executive.
  5. Be cautious with Money Bill classification: Reserve Money Bill classification for items squarely within Article 110; risk assessment should anticipate judicial and political challenges.

  6. Draft clear commencement and savings provisions: transitional clauses reduce litigation over retrospective effect and existing rights.

  7. For opposition counsel and public interest litigators

  8. Attack jurisdiction and procedure early: challenge classification (Money Bill), legislative competence, or the absence of required special procedure where appropriate.
  9. Build evidentiary record: procure committee reports, explanatory memoranda, and certified parliamentary records. Use these to show lack of due process or mala fides where relevant.
  10. Challenge overly broad delegated powers and absence of intelligible principle to constrain rule-makers.

  11. Use constitutional amendments jurisprudence: where a Bill alters the structure of fundamental rights or separation of powers, the basic-structure doctrine is a powerful tool.

  12. For litigators in statutory challenges

  13. Choose proper remedies: seek interim relief only when statute causes irreparable harm (courts are conservative in granting stay on laws of general application).
  14. Frame issues narrowly: courts prefer to adjudicate on discrete constitutional defects (competence, procedure, vagueness, delegation) rather than wide-ranging policy disputes.

  15. Preserve record at the earliest stage: file applications for certified copies of parliamentary proceedings or the Speaker’s certificate where classification disputes exist.

  16. Common pitfalls to avoid

  17. Assuming Speaker’s certificate is absolutely immune from any form of review — while Article 110(3) gives the Speaker finality on Money Bill classification in parliamentary practice, litigation strategy should still consider constitutional avenues where the classification is a sham that subverts constitutional distribution of powers.
  18. Failing to establish a clear legislative competence basis in the Bill’s materials — courts will scrutinize this in challenges.
  19. Weak delegated-legislation clauses lacking safeguards and oversight — invite judicial invalidation.

Conclusion

A Bill is more than a draft law: it is the piece of paper where policy, constitutional competence and procedure converge. For practitioners, success turns on meticulous drafting (competence, intelligible delegation, financial clarity), strategic use of parliamentary procedures (committees and records), and careful litigation strategy that targets procedural or constitutional defects rather than policy disagreements. Keep three focus points in mind: (1) anchor the Bill firmly within constitutional competence and parliamentary procedure; (2) create a robust legislative record (committee reports, explanatory memoranda) to defend intent and necessity; and (3) anticipate and forestall common judicial challenges — Money Bill classification, excessive delegation, and basic-structure issues — by clear drafting and transparent parliamentary process.