CHAPTER-V

FORMALITIES RESPECTING BILLS-BEFORE INTRODUCTION

10. Statement of Objects and Reasons: When a Bill is finalised and is approved by the Department sponsoring it, that Department attaches to the Bill a Statement of Objects and Reasons relating thereto, which is to be signed by the Minister who is to be in charge of the Bill in the Assembly. This Statement has to be drawn very carefully so that it does no more than indicate the intention behind the Bill and the reasons which have led up to it in a calm and judicial tone; very often such statements are drawn in consultation with the Draftsman or are shown to him for approval.

11. Financial Memorandum and Memorandum regarding the Delegated Legislation: The Rules of Procedure of the Legislative Assembly requires that-

1. a Bill involving expenditure shall be accompanied by a Financial Memorandum which shall invite attention to clauses involving expenditure and shall also give an estimate of recurring and non-recurring expenditure involved in case the Bill is passed into law;
2. clauses or provisions involving expenditure from public funds shall be printed in bold type or in italics;
3. a Bill involving proposals from delegation of Legislative powers, shall further be accompanied by a Memorandum explaining such proposals and drawing attentions to their scope and stating also whether they are of normal or exceptional character. Financial Memorandum is prepared by the Department sponsoring the Bill and Finance Department (if it is not the sponsoring Department) is always consulted at the appropriate stage. These Memorandums outline the objects on which expenditure is likely to be involved, and furnish an estimate whenever possible of the annual expenditure.

The Memorandum regarding delegated legislation has to be drawn with same care. While the practice of delegating law-making power is justifiable and even inevitable, the legislature would like to be satisfied that the delegated legislative power does not extend beyond the justifiable limits. The normal type of delegated legislation would be characterised by the fact that the limits of the delegated powers are clearly defined in the enabling Act itself and do not include such exceptional powers as the power to legislate on matters of principle or to impose taxation or to amend an Act of the Legislature, whether that under which the power exists or any other. The exceptional type embraces cases where the powers just cited or where the powers given are very wide and their limits are almost impossible of definition or while limits are imposed the control of the Courts is ousted. Rule 273 of the Rules of Procedure and Conduct of Business in the Assembly requires the Departmentally Related Standing Committees to examine rules made by a delegated authority with a view to consider whether-

1. they are in accord with the general objects of the Constitution or the Act pursuant to which they are made;
2. they contain matter which in the opinion of the Committee should more properly be dealt with in the Act itself;
3. they impose any tax;
4. they directly or indirectly bar the jurisdiction of Courts;
5. they give retrospective effect to any provisions for which there is no justification in the Act or the principal Act does not confer any such power;
6. they appear to make unusual or unexpected use of the powers conferred by the Act pursuant to which the are made; and
7. generally, for any reasons, the form or purport of the rules calls for any elucidiction.

A Draftsman, no doubt, would keep all the general principles involved in delegated legislation and rule 273 (ibid) in mind when drafting a Bill, and therefore, in most cases the Legislative power is not likely to be of an exceptional character. In the very few cases where the delegated power is of an exceptional character, the Memorandum should take care to explain why it has to be so.

12. Statement in connection with Ordinances:. Whenever an Ordinance is promulgated or an Ordinance which embodies wholly or partly or with modifications the provisions of a Bill pending before the Assembly, is promulgated, a statement explaining the circumstances which had necessitated legislation by Ordinance is required to be laid on the table at the commencement of the session following the promulgation of the Ordinance.Wherever, a Bill seeking to replace an Ordinance with modification is to be introduced or processed, there shall be placed before the Legislative Assembly alongwith the Bill a statement explaining the circumstances necessitating such modification.

13. Recommendations of the Governor or previous sanction of the President for certain types of Bills: In respect of certain types of Bills, the Constitution requires a few formalities to be compiled with before their introduction in, or consideration by, the Assembly.

1. Under article 207 (1), no Bill which makes provisions for any of the matters specified in sub-clauses (a) to (j) of clause (1) of article 199 can be introduced in the Assembly except on the recommendations of Governor. These matters are:-

1. the imposition, abolition, remission, alteration or regulation of any tax;
2. the regulation of the borrowing of money or the giving of any guarantee by the State Government or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the State;
3. the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of money into or the withdrawal of moneys from any such Fund;
4. the appropriation of money out of the Consolidated Fund of the State;
5. the declaring of any expenditure to be expenditure charged on the Consolidated Fund of the State or the increasing of the amount of any such expenditure;
6. the receipt of money on account of the Consolidated Fund of the State or the public account of the State or the custody or issue of such money.

It is however, provided in article 207 (2) that a Bill shall not be deemed to make provisions for any of such matters by reasons 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.

2. Under article 207(2), a Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of a State shall not be passed by the State Legislative Assembly unless the Governor has recommended to the Assembly the consideration of the Bill.

3. Under article 304, no Bill or amendment imposing reasonable restrictions on the freedom of trade, commerce or intercourse with or within a State, can be introduced or moved in the legislature of a State without the previous sanction of the President.

4. Prior approval of the Government of India is required to be obtained under the instructions issued by the Union Government vide their letter No. 17-23/72-Judl., dated 3.8.1972, before processing the Bills in the Legislative Assembly-

(a) relatable to entries in the Concurrent List in the Seventh Schedule of the Constitution of India, to be reserved for the consideration of the President under article 254(2) of the Constitution;

(b) attracting the provisions of articles [31(2)], 31-A(1), 31-C and 288(2) that have to be submitted to the President for his assent under article [31(3)], proviso to article 31-A(1), proviso to article 31-C and 288(2) respectively;

(c) Bills on land reforms;

(d) Bills imposing restrictions on the freedom of trade or commerce under proviso to clause (b) of article 304 of the Constitution.

14. Procedure for procuring the prior sanctions of President or the prior approval of Government of India to the Bills . Whenever a Bill falls within one or the other categories, aforesaid, it is for the Administrative Department concerned with the Bill to obtain such recommendations or previous approval/sanction. All proposals either for procuring the sanction of the President under article 304(b) or for prior approval of the Government of India, are required to be submitted to the Government of India, in the Ministry of Home Affairs, to the Union Government alongwith at least six copies of the Bill, with the Statement of Objects and Reasons, (In case the Bill is an amending Bill, six up-date copies of the principal Act, Notes on clauses of the proposed Legislation and a comparative statement showing such relevant clauses as it exists and as it would read after the proposed amendment may also be forwarded).The reference to the Government of India for prior approval or sanction is required to be supported by certificates ( in the prescribed form) that the needed documents (along with six copies of the letter of State Government forwarding the proposed draft legislation are attached therewith) In case of legislation attracting the provisions of article 254(2) the extent of repugnancy to existing Central Laws on the subjects enumerated in the Concurrent List is to be clearly explained in the forwarding letter. Such proposals should be sent well in advance before the session of the State Legislative Assembly allowing, a reasonable time of not less than three weeks from the receipt of Bills in the Government of India for the examination of their provisions, in connected Ministries in the Union Government.

15.Form of order of the Governor granting recommendations to the Introduction of Bills.- The order of the Governor granting recommendations to the introduction or consideration of the Bill has to be communicated to the Secretary, Vidhan Sabha by the Minister-in-Charge in writing and following statement is annexed to the Bill:-

"The Governor of Himachal Pradesh, after having being informed of the subject matter of the _________________________, recommends, under article 207 of the Constitution of India, the introduction/and consideration of the aforesaid Bill in the State Legislative Assembly".

Likewise the order of the President granting sanction to the introduction of the Bill has to be communicated to the Secretary, Vidhan Sabha, by the Minister-in-Charge in writing.

16. Procedure for obtaining recommendations of the Governor under article 207.- The procedure ordinarily adopted for obtaining the recommendations of the Governor under article 207 of the Constitution is for the Administrative Department concerned to submit to the Governor, a self contained note on the subject together with a copy of the summary to the Cabinet and the decision of the Cabinet (In case of an amending Bill an updated copy of the principal Act is placed on the file). Such proposal is to be forwarded to the Governor with-

(a) a report of the Secretary concerned as to the reasons/ circumstances necessitating the proposed legislation; and

(b) a report of the Law Secretary as to the competency of the State Legislature to enact the proposed legislation and as to whether the Bill, after having been passed by the Legislature can be assented to by the Governor or is to be reserved for the consideration of the President.(Where a Bill can be introduced with a Presidential sanction, such sanction has been obtained)

The Governor endorses his recommendation on the file. The order of the Governor, granting or withholding the sanction to the introduction and consideration of the Bill is communicated to the Secretary, Vidhan Sabha by the Minister concerned in writing.

17. Table showing arrangement of clauses: In case of Government Bills a title showing arrangement of clauses is included at the beginning in order to facilitate references to the clauses in the Bill. A practice has also grown up of late of annexing Bills a copy of the provisions sought to be amended. Both the arrangement of clauses and annexures are prepared in the Law Department.