Вы находитесь на странице: 1из 15

Statutory Laws

LEGAL METHODS

1
INDEX

Acknowledgement ……………………………………………………………………….……3

Statutory Law: Introduction……………………………………………………………………4

Legislation……………………………………………………………………………………..5

Stages of the Law-Making Process……………………………………………………………7

Reforms………………………………………………………………………………………11

Bibliography………………………………………………………………………………….15

2
ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave
me much pleasure. I would also like to expand my gratitude to all those who have
directly and indirectly guided me in writing this assignment.

3
STATUTORY LAW
Statutory law is law that’s written by a legislative body. It’s law that a government
deliberately creates through elected legislators and an official legislative process. It’s up to
the judiciary to interpret and enforce statutory law, but the judiciary can’t create statutory
law. Laws created by statute are often codified. That means they’re all put together in one
place and given numbers for reference. Statutory Law is the term used to define written
laws, usually enacted by a legislative body. Statutory laws vary from regulatory or
administrative laws that are passed by executive agencies, and common law, or the law
created by prior court decisions.

Unlike common law, which is subject to interpretation in its application by the court,
statutory laws are generally strictly construed by courts. Strict construction means that courts
are generally not able to read between the liens of a statute in order to liberalize its
application. Rather, they will be bound by its express terms.
As legislative enactments, statutory laws follow the usual process of legislation. A bill is
proposed in the legislature and voted upon. If approved, it passes to the executive branch
(either a governor at the state level or the president at the federal level). If the executive signs
the bill it passes into law as a statute. If the executive fails or refuses to sign the bill, it can be
vetoed and sent back to the legislature. In most instances, if the legislature again passes the
bill by a set margin it becomes a statute.

Statutes are also recorded, or codified, in writing and published. Statutory law usually
becomes effective on a set date written into the bill. Statutes can be overturned by a later
legislative enactment or if found unconstitutional by a court of competent jurisdiction.1

What’s not statutory law?


Statutory law is law that’s purposefully created by a legislature and made into
law. Representatives contemplate what they think the law should be. They spend time
drafting, editing and passing the law. To understand statutory law, it’s helpful to understand
what it’s not:

 Common law
Common law is law that a judiciary creates over time. It’s not passed by a legislative
body. Instead, case by case, the judiciary determines what they think are sound
principles of law.
When they apply these principles, one at a time, in real cases, common law develops.
This isn’t statutory law. Statutory law is created in one act by a legislative body. It
isn’t piecemeal like common law. Rather, statutory law either exists, or it doesn’t.
 Administrative law
Administrative law is the body of law that’s created by executive agencies.
Legislators authorize the agencies to exist. They allow the agencies to make their own

1
Statutory Law, available at https://www.hg.org/statutory-law.html

4
rules in their area of governance.
For example, if a state has a department of natural resources or a department of fish
and game, they might authorize the department to create their own laws and rules
about hunting and fishing. These rules have the force of law, and they can even be
misdemeanour or felony offenses. However, they’re not statutory law. Statutory law
comes from a legislative body rather than from executive administrators or
bureaucrats.

LEGISLATION
Legislation, also known as statutory law, is a relatively new concept in judiciary and these
laws are made by legislature. A legislature is a type of deliberative assembly with the power
to pass, amend, and repeal laws. It originated while setting up of democratic government. The
reason for its development in a certain kind of government is because its application is
possible in the presence of a governing body and as we are very much familiar with the fact
that governing body is a primary feature of democratic state. Legislations are also known as
statutory laws and they can be set down by the national, state legislature or local
municipalities.2

Legislation: India Legal System


Legislation, also known as statutory law, is the basic structure of present legal system of
India. Statutory laws are based on the statutes enacted and imposed by the legislature. A
statute is a formal act of the Legislature in written form. It declares the will of the
Legislature. It may be declaratory of the law, or a command which must be obeyed, or a
prohibition forbidding a course of conduct or a particular act. Legislation, at its best, is not a
combat between ideological opponents but instead a sincere search for the best governing
rules for our society. A conscious legislature might easily understand that it cannot foresee all
future developments affected by its statute and might therefore wish to grant a trusted judicial
agent the discretion to adapt its commands to the circumstances of adjudication. If so,
pragmatism fits neatly within the delegation context.3
A statute is the crystallization of an objective which may be political, social, economic or
even personal but there will be a motive that lurks behind it. A group of persons may be
interested in a particular measure which may call for the exercise of the legislative power of

2
Legislation, available at https://www.britannica.com/topic/legislation-politics
3
Legislation: India Legal System, available at http://www.legalservicesindia.com/article/587/Legislation-&-
Common-Law-:-Indian-Legal-System.html

5
the state. Legislation then becomes the means to attain an end. These groups could be:
• Political parties
• Pressure groups
• Departmental officials
• Commissions of Inquiry
• Parliamentary committees
• Public and private organizations
Although some groups have a greater or more direct influence on the legislature than others,
they are all united in the same conviction that a situation exists which calls for legislation.

Legislation in India
Legislation in India seeks its history from British rule period. Since the time when India
Became a colony of Britain, legislation, as a source of law, started growing at a slow rate at
beginning but now in the present scenario, we see that legislature is the most important
source of law.
Few pre-independent legislation which are still valid and followed in India are:
· Indian Penal Code, 1860
· Indian Evidence Act, 1872
· Indian Contract Act, 1872
· Civil Procedure Code, 1908
· Government of India Act, 1919
· Government of India Act, 1935

Development of legislation in India


At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal
mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The
Indian Bar had a role in the Independence movement that can hardly be overstated – that the
tallest leaders of the movement across the political spectrum were lawyers is ample proof.
The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K.
Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its
relation to society that prompted the founding fathers to devote the energy required to form a

6
Constitution of unprecedented magnitude in both scope and length. The Constitution of India
is the guiding light in all matters executive, legislative and judicial in the country.

Some of the post-independence statutory laws in India are:


· Criminal Procedure Code, 1973
· Motor-vehicle Act, 1988
· Information Technology Act, 2000
· Right to Information Act, 2005

STAGES OF STATUTORY LAW MAKING

All proposals for legislation are initiated in the form of bills, which when passed by the two
houses and assented by the President become Acts. On the basis of content, the bills may be
classified as:

(1) Original bills: Bills for new proposals, ideas or policies;

(2) Amending bill: Bills for modification, amendment or revision of existing acts;

(3) Consolidating bill: Bills which seek to consolidate existing laws on a subject;

(4) Expiring Laws (Continuance) Bills: Bills to continue expiring acts;

(5) Bills to replace Ordinances; and

(6) Constitutional Amendment Bills.

Money and financial bills are treated separately from other bills because of their special
features. They can be introduced only after the prior consent of the President and can be
introduced only in the Lok Sabha. This chapter deals with the various stages of the
Legislative process in India.

A bill must pass through the following stages before it becomes an act of the Parliament:

Preparation of The Bill:

All legislative proposals to be brought in the Parliament are to be brought in the form of bills.
It may be presented by a government member or a private member. A bill originates as a

7
legislative proposal. Government bills based on party policies or administrative needs are
initiated either by a Ministry or a Minister after working out all the implications of the
proposal. Opinion on legal matters or constitutional matters can be sought from the Law
Ministry or the Attorney-General and if required, the respective state Ministries may also be
consulted to get a broader perspective. After this process of scrutinising the proposal, the
memorandum is sent to the Cabinet for approval. This proposal is then converted to a bill by
skilled draftsmen. It is then re-scrutinised by the concerned Cabinet or the Ministry and may
be re-drafted.

First Reading:

The first reading refers to motion for leave to introduce a bill, on the adoption of which the
bill is introduced, or introduction of a bill already published in the Gazette. A Bill may be
introduced by a government member, that is, a minister or a private member. If the bill is
introduced by a government member, it is called a Government bill and if introduced by a
private member, it is called a Private member’s bill.4 The Minister or member who is to
introduce the Bill has to give a seven days written notice to the House about its introduction
in the House. If the house grants the permission, the bill is introduced in the house. This
constitutes the first reading of the Bill. If the introduction is opposed by a member, the
Speaker may ask the introducer as well as the concerned member opposing the introduction
of the bill to make statements. If the introduction has been opposed on the ground that the
legislation is outside the purview of the House’s legislative authority, the Speaker may ask
for a full discussion.5 Publication of the Bill in Gazette is done after its introduction in the
House. However, with the permission of the Speaker, it may be published before its
introduction and in that case, leave to introduce is not required. The Speaker of the House
may also decide to refer the Bill to a Standing Committee.

Second Reading:

4
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf
5
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf

8
The second reading is the most important part of the law-making process. The second reading
consists of consideration of the bill in two stages. First, a general discussion of the Bill takes
place in the House, where the principles underlying the Bill are discussed. After this, the
House may choose to refer the Bill either to a Select Committee of the House or to a Joint
Committee of both the houses or an ad-hoc committee appointed specifically with regard to
the Bill or may circulate the bill for eliciting opinion or may take the Bill into consideration
straightaway.

If the Bill is referred to a Select or Joint Committee, the Committee closely scrutinises the
Bill, clause-by-clause and recommends any amendments which it deems necessary. If
required, the Committee may also take the opinion of associations, public bodies representing
the affected interests or of individuals who have special knowledge or experience in the
concerned matter.

This stage is the most important one in the law-making process for a variety of reasons.
Usually, any discussion on a matter is likely to be affected by party limitations and
ideologies. This is the stage which offers an opportunity for a dispassionate and objective
consideration without any such restrictions. Also, since the opinions of those who are likely
to be affected by the Bill are consulted, chances of a bad law being passed are greatly
reduced. Public opinion may be obtained as well via State governments. After this, the
Committee submits its reports to the House. This is the first stage of the Second Reading.

The second stage of the Second Reading is the clause-by-clause consideration of the Bill in
the House as reported or as introduced by the Select or Joint Committee. Every clause and
schedule is discussed in detail in the house. Amendments are also recommended at this stage
and if they are approved by a majority of present and voting members, they are accepted.
After the discussions are over, and the bill has been approved by a majority of the members
present and voting, the second reading is considered to be over. Only in the case of
Constitution Amendment Bills, a two-third majority is required.6

Third Reading:

6
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf

9
When all the clauses and schedules have been considered and voted upon in the Second
reading is over, the member-in-charge for the Bill can ask for the Bill to be passed (or with
Amendments). This stage is the Third Reading. At this stage, there are no detailed
discussions. Members may speak only in support of the Bill or oppose it. The details of the
Bill are not discussed until it is absolutely necessary. If the bill is passed by a simple majority
of the members present, it is deemed to be passed.7 With the signature of the Secretary-
General of the House, the Bill goes to the other House.

Bill In The Other House:

After the Bill has been passed in one House, it is then sent to the other House, where it goes
through similar stages, except the introduction.8 Since a Money Bill9 can only be introduced
in the Lok Sabha, it is first passed in the Lok Sabha, and then sent to the Rajya Sabha. The
Rajya Sabha may suggest amendments and return it within fourteen days from the date of
receipt. It is upto the Lok Sabha to accept or reject any or all of the amendments or
recommendations made by the Rajya Sabha. Whether the Lok Sabha passes the Bill after
making the amendments recommended by the Rajya Sabha, or without them, or the Rajya
Sabha is not able to return the Bill within the period of fourteen days, or it passes the Bill as
it is, it is deemed to be passed by both the Houses.10 In a way, the Rajya Sabha has no say
with regard to Money Bills.

Joint Sitting of Both Houses:

A joint sitting of both the Houses may be called by the President if an ordinary Bill which has
been passed by either of the two houses is pending in the other House and more than six
months have lapsed, from the day of the receipt and still the deadlock has not been resolved.

7
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf
8
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf)
9
Bills which exclusively contain provisions for imposition and abolition of taxes, for appropriation of moneys
out of the Consolidated Fund, etc., are certified as Money Bills.
10
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf

10
In a joint sitting, a decision is taken by a simple majority of the members of the two Houses
present and voting and if passed, the bill is deemed to have been passed by both houses. A
joint session cannot be called to consider the Constitution Amendment Bills.

Assent of The President:

After the Bill has been passed by both the Houses, it is sent to the President for his approval.
The Secretariat of the House which passed it last obtains his assent, but in the case of a
Money Bill or a Bill which has been passed in a joint sitting of both the Houses, it is the Lok
Sabha Secretariat which obtains the assent of the President.11

The President may approve the bill or return it with or without his recommendations for
reconsideration. However, if the Houses pass the Bill, with or without amendments, then the
President is bound by the Constitution to give his assent. The same applies to Constitution
Amendment Bill. Also, the President cannot disapprove a Money Bill, since it is introduced
after his prior permission only.

REFORMS
The law-making process in India is quite well structured. The process is a fairly long one and
any law, before being passed undergoes a lot of scrutiny which leaves very little scope for
errors. Yet, time and again, fingers have been pointed at various flaws in the process, such as,
lack of direct involvement of the public in law-making, lack of provisions for public
initiatives, the role of the Rajya Sabha and the pseudo powers given of the President, which
at times appear to be crippled. Another question that has been raised time and again is
regarding the role of the Judiciary in law-making, that is, should the Judiciary play an active
role in the process? The inefficiency of elected representatives has been a matter of concern
as well. This chapter deals with some of these flaws, and an attempt has been made to suggest
certain reforms which may help in making the process more efficient.

Role of Judiciary:

11
Lok Sabha Secretariat, How A Bill Becomes An Act (2009), available at
http://164.100.47.132/LssNew/our%20parliament/Folder04.pdf

11
To make the legislative process more efficient, it has been proposed time and again that the
Judiciary should play a more direct role. Changes such as pre-legislative scrutiny by the
Judiciary and giving the judiciary the power to make amendments to laws have been
recommended. Although this appears to be a great initiative prima facie, it poses newer and
greater problems. Firstly, since India is a democracy, the power to make laws and amend
them has been conferred on the Parliament, since it is the body which represents citizens. So,
giving the Judiciary the power to amend laws would in a way be against the spirit of
democracy. Also, cases might arise in which the judges who played a part in making or
amending a particular law may have to decide upon cases involving the same laws, which
will pose a serious dilemma. The researcher observes that although the Judiciary should have
a greater role to play, it should only be restricted to pre-legislative review rather than post
legislative review and even then, the role should be restricted to making recommendations
only. Since the legality and constitutionality of a Bill are reviewed by the Attorney-General
or the Law Ministry or both at the preparation stage only, the Judiciary’s role becomes even
more minimal. Thus, there is not much scope for a change here.

The Role of The Rajya Sabha:

The founding fathers had seen the Rajya Sabha as a revising and reflective chamber. It was
supposed to be an impartial chamber, unlike the Lok Sabha, which is often swayed by the
considerations of electoral outcome. In the words of Gopalaswami Ayyangar, “The most that
we expect from the second chamber is to hold dignified debates on important issues and to
delay legislation which might be the outcome of the passions of the moment”. The upper
house was supposed to be the intellectual face of the Parliament. It has been observed on
many occasions recently that the Rajya Sabha has been merely been duplicating the work of
the Lok Sabha without providing any significant inputs. Also, the nomination of some
members has been questioned on the grounds that they will not be able to make any
noteworthy contribution to the House, such as in the case of Sachin Tendulkar recently. And
thus, the overall efficiency and ability of the House comes under the scanner. Another
argument that has been raised is that the Rajya Sabha should have more powers with regard
to Money Bills, where the Lok Sabha has complete authority.

12
Role of The President:

As mentioned above, the President can either send the bill back once or delay his assent but
cannot apply a total veto. This has at times been compared with the “pocket – veto” available
to the president in the United States, where the President may leave the Bill unsigned in the
specified period, which is the last ten days before the end of a session, and in such a situation,
the Bill lapses.12 But this is a flawed comparison, since in India; the Bill does not lapse and
may be with the President for as long as he may please. If the President returns it once, with
or without amendments, and the Bill is passed again, with or without adhering to the
President’s recommendations, he has to sign it. This poses a problem that the Parliament may
have its way in making laws, since the President can send it back only once. And in case he
decides to suspend it, there is a possibility that there may be serious delays in the legislative
process. The researcher feels that there is a need to make amendments to the veto powers
available to the President and provisions should be made to solve these problems.

Lack of Direct Public Involvement and Negative Voting:

One of the major flaws in India’s democratic process is that the citizenry does not have a
direct involvement in the law-making process. The people do not get to choose what laws
they would want to be formed, the only choice on offer is of who will make the laws for
them, which many a times ends up being a choice of choosing the less worse of the available
lot. Both the Law Commission and the Election Commission have proposed that a
neutral/negative voting option should be introduced. This means, giving the voters a choice
of rejecting all the candidates by selecting a “none of the above option” instead of a
candidate’s name, along with the provision of nullifying such an election if a certain
percentage of voters choose this option. This would go a long way in helping in negating the
widespread use of money and power prevalent in elections.13

Although India is a representative democracy, the need of provisions for direct participation
by the citizens has often been felt. For example, in the United States, a voter or an
organisation may draft a proposed law and circulate a petition asking that the Bill be
submitted to popular vote. Then, a certain number of signatures are required, which is usually
from three to fifteen percent of the votes cast in the last election. If the petition meets all the

12
Veto Power of the President, available at http://www.answers.com/topic/veto-power-of-the-president
13
Negative/Neutral Voting (2012), available at http://indiaprospect.org/Blog/?p=146

13
legal requirements, it is put before the public to be approved or rejected. If such a Bill is
passed, the Governor cannot veto it.14

In a referendum, laws or other measures are referred to the voters simply for approval or
rejection and the citizenry does not originate the issue on which it votes. But again, there are
arguments both in support and opposition to the proposal. Those in support contend that this
instrument can be of great help in solving problems where opinions are divided and the
outcome will have a significant impact on a considerable part of the public.15 But the use of
this instrument would also translate into undermining the role of elected representatives. So,
the need is to find some sort of a middle path where both direct and representative democracy
can be accommodated.

Another method which could be adopted to make the process more transparent and
democratic is pre-legislative scrutiny by the public. Since the number of bills being
considered by the Parliament at any point of time is very high, information regarding laws
becomes available to the public post-facto. Lack of public scrutiny and transparency in the
legislative process has often been criticised because of the fact that the laws being made have
a tremendous impact on the lives of people.16 For example, in the case of the Civil Nuclear
Liability Bill, Siddharth Varadarajan had said, “a complex legislation with the potential to
affect the lives of tens of millions of people was being pushed through with stealth, subterfuge
and the barest minimum of consultation.”17 While making decisions which have a widespread
effect, due consultation from the public should be made. The need for this becomes even
greater in a country like India where the cultural and social diversities are huge and play a
major role in shaping the lives of people.

14
Initiative and Referendum, available at http://history.howstuffworks.com/american-history/initiative-and-
referendum.htm
15
Advantages and Disadvantages of the Referendum Instrument, available at
http://history.howstuffworks.com/american-history/initiative-and-referendum.htm
16
Mandakini Devasher, Transparency in Legislative Process (December 27,2010), AI INDIA’S BLOG,
available at http://www.accountabilityindia.in/accountabilityblog/1908-transparency-legislative-processes
17
Siddharth Varadarajan, This is no way to Write a Law, THE HINDU (August 24,2010), available at
http://www.thehindu.com/opinion/lead/article592116.ece?homepage=true&css=print

14
BIBLIOGRAPHY

 S.G Deogaonkar, Parliamentary System in India, (CONCEPT PUBLISHING COMPANY:


NEW DELHI, 1997)
 C.K Jain, The Parliament of India, (ALLIED PUBLISHERS LIMITED: NEW DELHI,
1993)
 B.L Shankar, Valerian Rodrigues, The Indian Parliament, 2nd Edn. (OXFORD
UNIVERSITY PRESS: NEW DELHI, 2011)
 www.theindianhistory.org
 www.indianetzone.com
 www.indiaprospect.org
 www.thehindu.com
 www.britannica.com
 www.hg.org

15