NFHS Weekly Discussions

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How a Legislation is made – Picked from Rajya Sabha Website

Presented to the members of NFHS on 22-August-2010 – By Suresh P

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Department responsible for initiating legislation		9.1 Every proposal for legislation in Parliament will be initiated in the department to which the subject matter of the legislation relates.
Pre-drafting stage		9.2 Pre-drafting stage of a legislative proposal will fall into the following four broad sub-stages:
Formulation of legislative proposals		(a) The department concerned will formulate the legislative proposals in consultation with all the interests and authorities concerned, essentially from administrative and financial points of view. This should include a discussion on the necessity for the proposed legislation and all matters of substance to be embodied therein but not the technical details of the drafting.
Consultation with the Ministry of Law and Justice		(b) The department concerned will thereafter refer the matter to the Ministry of Law and Justice for advice as to its feasibility from legal and constitutional points of view. The Ministry of Law and Justice will, at this stage, advise generally on the necessity or desirability of such legislation in the light of the existing laws and also constitutional validity of the proposals without going into details.
Approval of the Cabinet		(c) If it is decided to proceed with the legislation, a self-contained note will be prepared by the department concerned in consultation with the Ministry of Law and Justice (Legislative Department) and other concerned departments.
		(d)  The department concerned will also send all the relevant papers to the Ministry of Law and Justice (Legislative Department) with an Office Memorandum indicating the precise lines on which it has been decided to legislate, to enable that department to take up drafting of the requisite Bill. The Office Memorandum will contain:      (i) complete details of the legislative proposals;      (ii) the entire background material (placed on the file for reference);      (iii) all other details relevant to the proposed Bill; and      (iv) Draft Note for the Cabinet.       The administrative department will not attempt a draft of the Bill.
Drafting stage		9.3 The Ministry of Law and Justice (Legislative Department) will then prepare a draft Bill ordinarily within thirty days from the date of receipt of the proposal after clearance from the Department of Legal Affairs, unless any clarifications are required or it is not possible to do so for contingencies such as the draftsman being busy with budget proposals etc., on the basis of the material made available by the concerned department, holding discussions with the officers of that department for getting various aspects of the Bill clarified, wherever considered necessary.
Format of the Bill		9.4 The format of the Bill shall be as below:(a)  if the Bill contains more than 25 clauses, include in the beginning a table showing the arrangement of clauses; and(b)  in the case of an amending Bill, contain relevant extracts of provisions of original Act sought to be amended.
Approval of the Cabinet		9.5 Once the Note for the Cabinet, as prepared in consultation with the Ministry of Law and Justice and other concerned departments, is finalised and the draft of the Bill prepared by the Ministry of Law and Justice (Legislative Department) is accepted after scrutiny by the department concerned, the department will send the Note to the Cabinet Secretariat for placing the same before the Cabinet for its consideration and approval. The Note for the Cabinet will:
		(a)  state the legislative proposals, bringing out clearly the need, scope, and object of the proposed legislation;(b)  incorporate the views of other concerned departments and be also shown to them, if so required by the procedure laid down by the Cabinet Secretariat;(c)  set out all the implications of the proposed legislation; and(d)  include the draft of the proposed Bill as Appendix II.
Action to be taken after Cabinet decision		9.6 After the Cabinet approval, the department concerned will examine the decision of the Cabinet to see whether any change is necessary in the draft Bill submitted to the Cabinet. If so, all the relevant papers including the decisions of the Cabinet will be sent to the Ministry of Law and Justice (Legislative Department) to enable that department to make necessary changes in the draft Bill in consultation with the concerned department in accordance with the decisions of the Cabinet. In case, however, no modifications are necessary in the Bill after the Cabinet approval, the department concerned will prepare:
PRO7.1 LSR65 RSR62 Notes on clauses		(a)  a Statement of Objects and Reasons relating to the Bill to be signed by the Minister;(b)  notes on Clauses to be appended to the Statement of Objects and Reasons in case the Bill is of a complicated nature;
Financial Memorandum PRO7.2, 7.3 LSR69 RSR64		(c)  Financial Memorandum to be prepared in consultation with the Ministry of Finance, in respect of the Bills involving expenditure, inviting particular attention to clauses involving expenditure and also giving an estimate of the recurring and non-recurring expenditure involved; and
Memorandum regarding Delegated Legislation  PRO 8.4 LSR 70 RSR 65		(d) a Memorandum regarding Delegated Legislation explaining the scope of the proposals and stating whether they are of a normal or exceptional character.All the above documents will also be shown to the Ministry of Law and Justice (Legislative Department) before finalisation.
Obtaining recommendation/ previous sanction of the President  PRO 8.10 PRO 8.21 to 8.25		9.7.1(a) recommendation of the President for the introduction of any Bill: (i) seeking the formation of new States or for the alteration of areas, boundaries or names of existing States (Article 3 of the Constitution); or (ii) making provision for any of the matters specified in sub-clauses (a) to (g) of clause (1) of Article 110 of the Constitution in accordance with Article 117(1); or (iii) imposing or varying any tax or duty in which States are interested (Article 274 of the Constitution); or (b) the previous sanction of the President for introduction of any Bill, making provision for the language to be used, for any of the purposes mentioned in Article 348(1) of the Constitution; and (c) the recommendation of the President for the consideration of the Bill, if it involves expenditure from the Consolidated Fund of India (Article 117(3) of the Constitution.) After action as in para 9.6 is taken, the department concerned will obtain :
PRO 8.22		Note : The recommendation mentioned in (c) above will be obtained separately in respect of each House.
		9.7.2 For obtaining the recommendation or the previous sanction of the President, the department will submit through the Minister to the President a self contained note with a copy of the note for the Cabinet and its decision and a copy of the Bill.
PRO 8.23		9.7.3 The department will, thereafter, communicate the recommendation/previous sanction of the President to the Secretary General, Lok/Rajya Sabha in the form at Annex 7.
		9.7.4 To avoid objections of a procedural or constitutional nature, the department will submit to the Minister, information in the form at Annex 8.
Keeping the Ministry of Parliamentary Affairs informed		9.8 To enable the Ministry of Parliamentary Affairs to draw up the legislative programme of a session, detailed particulars about the Bill(s) proposed to be introduced during a session will be sent to that Ministry in Part I of the form given in Annex I, at least a month before the commencement of the session.
House in which Bill is to be introduced		9.9 Bills which attract the provisions of Article 109 read with 110(1) and 117(1) of the Constitution will be introduced in the Lok Sabha. In the case of the other Bills, the House in which they are to be introduced will be decided in consultation with the Ministry of Parliamentary Affairs.
Printing of the Bill		9.10.1 The Ministry of Law and Justice (Legislative Department) will send the Bill as finalised, to the Government of India Press for obtaining proof copy.
		9.10.2 The Ministry of Law and Justice (Legislative Department)  will:
PRO8.12		(a)  send simultaneously two proof copies each of English and Hindi versions of the Bill to:      (i) the Secretariat of the House in which it has been decided to introduce the Bill (vide para 9.9 above); and      (ii) the Ministry of Parliamentary Affairs; and(b)  return the file to the department concerned.
		9.10.3 The Lok/Rajya Sabha Secretariat gets the fair copy of the Bill printed at every stage and sends a copy of it simultaneously to the administrative department and to the Legislative Department for scrutiny for ensuring accuracy. The administrative department, after scrutiny of the Bill, returns it within a day to the Legislative Department so as to enable the Legislative Department to incorporate corrections/suggestions, if any, and send a final scrutinised copy to the Lok/Rajya Sabha Secretariat.
PRO 8.20		9.10.4 The Lok/Rajya Sabha Secretariat gets fair copies of the Bill printed and circulated to the members.
PRO 8.20		9.10.5 Departments requiring additional copies of Bills should send a requisition in form S.99 to the LS/RS Secretariat so that it reaches it before the proof copy is transmitted by that Secretariat to the press.
PRO 8.28		9.10.6 A similar procedure will be followed for obtaining additional copies of reports of Select Committee/Joint Committee/Standing Committee on Bills. Requisitions, therefore, should be made sufficiently in advance of the date of presentation of the report.
Procedure for introducing the Bill in the House		9.11.1 The concerned department will send a notice of the motion for introduction of the Bill in the form at Annex 9, to the Secretary General, Lok/Rajya Sabha.
		9.11.2 Under the directions of the Speaker:
SD 19A PRO 8.14		(a)  seven days’ notice is normally required for introducing an official Bill in the Lok Sabha; and
SD 19B PRO 8.13		(b)  no bill shall be included for introduction in the Lok Sabha until after copies thereof have been made available to members for at least two days before the day on which the Bill is proposed to be introduced.
		9.11.3 Where exemption is required from the direction 19A, the Minister, while giving full reasons, will request the Speaker to waive the requirement of this direction for introduction of the Bill. Where, however, the exemption is required from the direction 19B, the Minister while requesting the Speaker in this regard will also inform him that he has consulted the leaders of various parties in the Lok Sabha and that they have no objection to the exemption of the direction for introduction of the Bill. The department concerned will also forward 500 copies in English and 300 copies in Hindi of a memorandum in the form at Annex 10, including one copy in each version duly authenticated by the Minister, to the Lok Sabha Secretariat for circulation among members.
		9.11.4 On the date specified by the Ministry of Parliamentary Affairs, the Bill is put down for introduction in the Lok/Rajya Sabha and is thereafter published in the Gazette of India by the LS/RS Secretariat.
Publication before introduction PRO 8.7 LSR 64 RSR 61		9.11.5 On a request made by the Minister, the Speaker/Chairman may permit the publication of the Bill in the gazette by the LS/RS Secretariat before its introduction. In such cases, the Bill will be put down for introduction without asking for the leave of the House. Where, however, such a Bill undergoes any change before its formal introduction, the procedure as in sub-para 9.11.1 will be followed.
LSR 331 RSR 270		9.11.6 The departmentally related Parliamentary Standing Committees examine such Bills as are referred to these committees by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon. Normally, Bills other than the Appropriation Bills, Finance Bills, Bills seeking to replace Ordinances and Bills of trivial nature, are referred to the respective Standing Committees (Annex 23b) for their examination and report. The Standing Committees may present their reports on the Bills in the subsequent Parliament session and sometimes, may take even longer, to present their reports. Where, however, there is urgency in enacting the legislation, the Minister concerned, while giving the reasons therefor, under intimation to the Minister of Parliamentary Affairs, may request the Presiding Officer of the House in which the Bill was introduced not to refer the Bill to the Standing Committee so that it could be considered and passed by the Houses during the ongoing Parliament Session.
		9.11.7 In case of Bills referred to Standing Committees for examination, the department concerned may examine the report of the committee when it is presented to the Houses or to the Presiding Officers. Where the department decides, with the approval of its Minister, to affect change(s) in the provisions of the Bill as introduced in the House, on the basis of recommendations of the committee, it may obtain the approval of the Cabinet to the amendments proposed to be made in the Bill.  After Cabinet approval, notice of motion of amendments to be moved by the Minister in the House should be finalised in consultation with the Ministry of Law and Justice (Legislative Department). The notice of motion of amendments so finalised along with the notice for consideration and passing of the Bill, duly signed by the Minister, should then be sent to the Secretary-General of the concerned House under intimation to the Ministry of Parliamentary Affairs and the Ministry of Law and Justice (Legislative Department).
Motions after introduction LSR 74 RSR 69		9.12 After the Bill is introduced, the Minister may send to the Secretary-General, Lok/Rajya Sabha, notice in the appropriate form at Annex 11, 12,13, 14 of his intention to move:(a)  that it be taken into consideration and passed; or(b)  that it be referred to a Select Committee of the House; or(c)  that it be referred to a Joint Committee of both Houses with the concurrence of the other House [except in the case of Bills referred to in para 9.7.1 (a)(ii)]; or(d)  that it be circulated for eliciting public opinion.
Withdrawal of a Bill LSR 110 RSR 118 SD 36 PRO 8.33		9.13 If it becomes necessary at any stage to withdraw a Bill, the Ministry of Law and Justice and the Ministry of Parliamentary Affairs will be consulted and approval of the Cabinet will be obtained. Where, however, for want of time, it is not possible to obtain prior approval of the Cabinet, the Minister incharge will take a decision in consultation with the Prime Minister. As soon as possible thereafter, a note in the usual form will be submitted for ex post facto approval of the Cabinet. The form of notice of withdrawal will depend on the stage at which the Bill is, and whether it has been passed by one House and pending before the other House. The forms at Annex 15 and 16, as may be appropriate, will be used for the purpose. A statement giving reasons for the withdrawal will also be sent to the LS/RS Secretariat at least five days before the date on which the motion for withdrawal is to be made. The number of copies to be sent for circulation will be 650 in English and 350 in Hindi for the Lok Sabha. For the Rajya Sabha they will be as in para 4.1.
Composition of the Select/Joint Committee		9.14.1 The strength of the Select/Joint Committee as also the date by which it will submit its report will be indicated by the concerned department and the names of the members to be appointed on the committee will be suggested by the Ministry of Parliamentary Affairs. These details will be incorporated in the body of the motion in the form at Annex 12 or 13. On this motion being passed by one House a concurrence motion in the form at Annex 17 will be moved by the Minister in the other House, if the bill is proposed to be referred to a Joint Committee.
LSR 299 RSR 76		9.14.2 After the committee is constituted, its chairman is nominated by the Speaker/Chairman. All matters connected with the meetings of the Select/Joint Committee are looked after by the LS/RS Secretariat. A Minister, even though he is not a member of a committee, may address the committee with the permission of the Chairman.
Amendments to Bills before Select/ Joint Committee PRO 8.26		9.14.3 All notices of government amendments to the Bills referred to Select/Joint Committee will be drafted by the Ministry of Law and Justice (Legislative Department). Notices of such amendments will be given by a Minister who is a member of the committee, in the form at Annex 18 to the LS/RS Secretariat, at least a day before the day of sitting at which the amendments are to be moved.
Procedure when a Bill is to be circulated for public opinion SD 20-23		9.15 When a Bill is to be circulated for eliciting public opinion, necessary action is taken by the LS/RS Secretariat, which also addresses the State governments.
Procedure after presentation of the report of Select/Joint Committee LSR 77 RSR 93		9.16 After presentation of the report of the Select/Joint committee to the House, the Minister in charge may give notice of his intention to move that the Bill as reported by the Select/Joint Committee :(a)  be taken into consideration and be passed; or(b)  be recommitted to the same committee or another committee; or(c)  be recirculated for obtaining further public opinion.
		9.17 When the motion that:(a)  the Bill be taken into consideration; or(b)  the Bill as reported by the Select/Joint Committee be taken into consideration is carried, the Bill will be taken up for clause-by-clause consideration. Members can, at that stage, move amendments to the Bill.
Amendments		9.18.1 Copies of amendments given notice of by members are sent by the LS/RS Secretariat to the department concerned. When they are received, the branch officer will put them up with briefs for use of the Minister for determining the Government’s attitude to them.
		9.18.2 Government amendments will also be moved at this stage. These amendments, for which the form at Annex 19 will be used, will be drafted by the Ministry of Law and Justice (Legislative Department).
		9.18.3 Amendments falling within Articles 117(1) and 274 of the Constitution are subject to the same restrictions in regard to the recommendation or the previous sanction of the President as Bills falling within those articles (vide para 9.7.1) except when the amendments falling within Article 117(1) involve reduction or abolition of any tax.
Cabinet Sectt. O.M.No.11/1/4/72-CF dt.1-11-72		9.18.4 Time permitting, proposals to amend the provisions of a Bill will be submitted to the Cabinet for approval. Where, however, for want of time, this is not possible, the Minister in charge will take a decision in consultation with the Prime Minister. As soon as possible thereafter, a note in the usual form will be submitted for ex post facto approval of the Cabinet.
Scrutiny by Ministry of Law & Justice PRO 8.29 SD 34		9.19 After a Bill is passed by a House:(a)  a copy of the Bill, as passed is sent by the LS/RS Secretariat to the Ministry of Law and Justice (Legislative Department) for scrutiny with a view to correcting patent errors and for making such other changes as are consequential to the amendments accepted by the House; and(b)  such changes as are accepted by the Speaker/Chairman are incorporated in the Bill, before it is transmitted to the other House for concurrence.
Consideration of the Bill in the other House LSR 115 RSR 122		9.20.1 After the Bill is laid on the Table of the other House, the Minister concerned will give notice of a motion in the form at Annex 20 to the Secretary-General of the House and also communicate the recommendation of the President, wherever necessary.
Consequential revision of the Financial Memorandum and the one on delegated legislation PRO 8.2 to 8.5		9.20.2 In the case of a Bill passed by one House with amendments, the department concerned will determine whether any consequential changes are required in the Financial Memorandum and/or Memorandum regarding Delegated Legislation. If any change is required, a letter will be sent in the form at Annex 21, signed by the Minister-in-charge of the Bill, addressed to the Secretary-General, Lok/Rajya Sabha forwarding revised memoranda, which will be prepared in consultation with the Ministry of Finance/Ministry of Law and Justice (Legislative Department), as may be appropriate.
Further scrutiny by Ministry of Law and Justice and assent of the President		9.21 After the Bill is passed by both the Houses:(a)  a copy is sent by the LS/RS Secretariat to the Ministry of Law and Justice (Legislative Department) as envisaged in para 9.19 for scrutiny and correction of patent errors, etc.
SD 34		(b)  on its return from the Ministry of Law and Justice, it will be reprinted by the LS/RS Secretariat with the superscription “as passed by the Houses of Parliament.”
LSR 128 RSR 135		(c)  the LS/RS Secretariat will send to the Secretary to the President, through the Ministry of Law and Justice (Legislative Department), two copies of the Bill together with five spare copies;
PRO 8.32		(d)  whenever the President’s assent is required by a particular date, the LS/RS Secretariat, the Ministry of Law and Justice (Legislative Department) and the Ministry of Parliamentary Affairs will be advised well in advance by the department concerned. The Ministry of Law and Justice (Legislative Department) will keep in touch with the President’s Secretariat for the purpose; and(e)  the date of assent which is the date on which the Bill becomes an Act, is intimated to the concerned Department and the Ministry of Parliamentary Affairs by the Ministry of Law and Justice (Legislative Department). One copy of the Act bearing the President’s signature is retained in the Ministry of Law and Justice (Legislative Department) and the other copy returned to the LS/RS Secretariat. The President’s Secretariat retains one spare copy.
Publication in the official gazette		9.22 The Ministry of Law and Justice (Legislative Department) will:(a)  publish the Act in the Gazette of India Extraordinary;(b)  forward copies of the Act to all State governments for publication in their official gazettes; and
Printing of copies of Act for sale		(c)  get copies of the Act printed in a suitable form for sale to the general public.
Procedure regarding private Member’s Bill		9.23.1 Whenever a private Member of Parliament gives notice of his desire to move for leave to introduce a Bill, the LS/RS Secretariat sends a copy of the notice together with a copy of the Bill to the concerned department.
		9.23.2 The department concerned will consult the Ministry of Law and Justice as to the competence of Parliament to enact the measure.
		9.23.3 The policy of the Government in relation to the Bill will be officially settled in the concerned department with the approval of Cabinet Committee on Parliamentary Affairs. The provisions of paras 5.8.3 and 5.8.4 will mutatis mutandis apply.
		9.23.4 The President’s recommendation required under clause (1) and/or (3) of Article 117 of the Constitution for the introduction/consideration of private members’ Bills will ordinarily be granted unless very exceptional circumstances especially warrant withholding of the President’s recommendation. In case a department feels that the recommendation of the President to a Bill should be withheld, that department will supply five copies of the brief explaining the circumstances leading to such proposal to the Ministry of Parliamentary Affairs for obtaining the approval of the Cabinet Committee on Parliamentary Affairs.
Ordinances		9.24.1 The procedure applicable to Bills will apply mutatis mutandis to promulgation of Ordinances under Article 123(1) of the Constitution.
		9.24.2 After the terms of a draft Ordinance have been settled in consultation with the department concerned, the Ministry of Law and Justice (Legislative Department) will submit through the Minister of the concerned department and the Prime Minister, for the signature of the President, a copy of the Ordinance together with:(a)  a spare copy of the Ordinance;(b)  a copy of the Note for the Cabinet; and(c)  a copy of the decision of the Cabinet relating to the Ordinance.
		9.24.3 The concerned administrative department will inform the Legislative Department the date and time at which they had delivered the Ordinance to the President’s Secretariat.
		9.24.4 The Ministry of Law and Justice (Legislative Department) will:(a)  get the Ordinance published in the Gazette of India Extraordinary;(b)  inform the department concerned and the Ministry of Parliamentary Affairs as to the promulgation of the Ordinance; and(c)  forward copies thereof to all the state governments for publication in their official gazettes.
Post-promulgation action		9.25 As soon as the Ordinance is promulgated, the following action will be taken:(a)  The Ministry of Law and Justice (Legislative Department) will supply to the Ministry of Parliamentary Affairs seventy-five copies each of Hindi and English versions of the Ordinance for being laid on the Table of the Houses.(b)  The department concerned will indicate to the Ministry of Parliamentary Affairs whether it is proposed to replace the Ordinance by an Act of Parliament.(c)  In case it is decided to replace the Ordinance by an Act of Parliament, the concerned department will keep ready a Bill relating thereto for introduction as far as possible on the opening day of the session.
LSR 71 RSR 66		(d)  The concerned department will take steps to prepare in consultation with the Ministry of Law and Justice (Legislative Department), a statement explaining the circumstances which necessitated legislation by Ordinance. This statement will be laid on the Table of the House at the time of introduction of the Bill seeking to replace the Ordinance. The statement will also be circulated to the members. The number of the copies for the purpose will be as in para 4.1(c).
LSR 71 RSR 66		(e)  Whenever an Ordinance, which embodies wholly or partly or with modification the provisions of a Bill pending before the House, is promulgated, the concerned department will lay on the Table of each House, at the commencement of the session following the promulgation of the Ordinance, a statement prepared in consultation with the Ministry of Law and Justice (Legislative Department) explaining the circumstances which had necessitated immediate legislation by Ordinance.
Legislation in respect of Union territories		9.26.1 Article 246(4) of the Constitution vests Parliament with powers to legislate on any matter in relation to the Union Territories listed in the First Schedule to the Constitution.
		9.26.2 Of the various Union Territories:(a)  Pondicherry has a Legislative Assembly under the Government of Union Territories Act, 1963, with powers to legislate on matters specified in List II (State List) and List III (Concurrent List) in so far as any such matter as applicable in relation to Union Territories;(b)  The Union Territories of the Andaman and Nicobar Islands, Chandigarh, Daman and Diu, Dadra and Nagar Haveli and Lakshadweep have an Advisory Committee each, set up by the Ministry of Home Affairs;(c) The National Capital Territory of Delhi has a Legislative Assembly under Article 239 AA of the Constitution of India read with the Government of National Capital Territory of Delhi Act, 1991, with powers to legislate on matters specified in List II (State List) or in List III (Concurrent List) in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
Parliamentary legislation for Union Territories		9.27.1 Proposals for parliamentary legislation for the Union Territories will be initiated by the department concerned, which will consult:(a)  the Ministry of Home Affairs on the desirability of undertaking the proposed legislation and the principles involved therein, including the substance of the more important provisions thereof; and(b)  the Ministry of Law and Justice (Department of Legal Affairs) from the constitutional and legal points of view.
		9.27.2 Thereafter the department concerned will:(a)  consult other departments concerned with any aspect of the subject matter of the legislation;(b)  refer the matter to the Ministry of Law and Justice (Legislative Department) for preparing a draft Bill;(c)  send the Bill where the matter relates to entries in List II (State List) or List III (Concurrent List) to the Ministry of Home Affairs for obtaining the views of the Advisory Committee concerned, if it relates to a Union Territory having such a Committee.
		9.27.3 Thereafter the department concerned will take steps to obtain the approval of the Cabinet and introduce the proposed legislation in Parliament in accordance with the procedure already described in this chapter for central legislation.
Legislation by the Legislative Assemblies		9.28.1 Section 3 of the Government of Union Territories Act, 1963, provides for constitution of a Legislative Assembly in the Union Territory of Pondicherry. The Rules of the Business of the said Union Territory of Pondicherry provide that the administrator shall refer for prior approval to the Central Government, every Bill which:(a)  if passed by the Legislative Assembly, is required to be reserved for the consideration of the President under section 21 or section 25 of the said Act;(b)  relates to any matter enumerated in List III (Concurrent List);(c)  attracts the provisions of Article 304 of the Constitution as applicable to the Union territories;(d)  relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Union Territory or abandonment of revenue or lowering of the rate of any tax; (e)  pertains to any matter relating to universities; and (f)  affects or is likely to affect the interests of any minority community, Scheduled Castes or Scheduled Tribes.
		9.28.2 References relating to prior approval to such Bills will:(a)  except in regard to para 9.28.1(c) above, be dealt with in the Ministry of Home Affairs; and(b)  in regard to para 9.28.1(c), be dealt with in the Department of  Commerce in consultation with the Ministry of Home Affairs.In all cases, these references will be dealt with in consultation with the other departments concerned and the Ministry of Law and Justice.
		9.29.1 Section 3 of the Government of National Capital Territory of Delhi Act, 1991, provides for constitution of a Legislative Assembly in the National Capital Territory of Delhi. The transaction of Business of the Government of National Capital Territory of Delhi Rules provide that the Lieutenant Governor shall refer to the Central Government every Bill which:(a)  if passed by the Legislative Assembly, is required to be reserved for consideration of the President under the proviso to sub-clause (c) of clause (3) of Article 239AA or, as the case may be, under the second proviso to section 24 of the Act;(b)  attracts provisions of Articles 286, 287, 288 and 304 of the Constituion as applicable to the Capital; and(c)  relates to any matter which may ultimately necessitate additional financial assistance from the Central Government through substantive expenditure from the Consolidated Fund of the Capital or abandonment of revenue or lowering of rate of any tax.
		9.29.2 Subject to any instructions which may be issued from time to time by the Central Government, the Lieutenant Governor shall make a prior reference to the Central Government in the Ministry of Home Affairs or to the appropriate Ministry with a copy to the Ministry of Home Affairs in respect of the following matters:(i)   proposals affecting relations of Central Government with any State government, the Supreme Court of India or any other High Court;(ii)  proposals for the appointment of Chief Secretary or Commissioner of Police, Secretary (Home) and Secretary (Lands);(iii) important cases which affect or are likely to affect peace and tranquility of the National Capital Territory; and(iv) cases which affect or are likely to affect the interests of any minority community, the Scheduled Castes/Scheduled Tribes or Backward Classes.
		9.29.3 References relating to prior approval to such Bills will:(a)  except in regard to para 9.29.1(c) above, be dealt with in the Ministry of Home Affairs; and(b)  in regard to para 9.29.1(c), be dealt with in the Department of Commerce in consultation with the Ministry of Home Affairs.      In all cases, these references will be dealt with in consultation with the other Departments concerned and the Ministry of Law and Justice.
		9.30 All references relating to Bills passed by the Legislative Assemblies of the Union Territory of Pondicherry and the National Capital Territory of Delhi and reserved by the Administrator for consideration of the President, will be dealt with in the Ministry of Home Affairs who will submit such Bills to the President after consulting the Ministry of Law and Justice and other departments concerned.
Ordinances		9.31 In every case in which the Administrator of the Union Territory of Pondicherry and the Lieutenant Governor of the National Capital Territory of Delhi is empowered to promulgate Ordinances (Article 239B of the Constitution in the case of Pondicherry and Article 239AA(8) read with Article 239B in the case of NCT of Delhi), prior instructions of the President have to be obtained. The procedure indicated in paragraphs 9.28 and 9.29 above, in regard to Bills will, with necessary changes, apply to obtaining such prior instructions.
Extension of enactments		9.32 Under the provisions** of the relevant sections of the enactments relating to the Union Territories the Central Government is competent to extend, by notification, any enanctment in force in a State to the Union Territories of (a) Chandigarh, (b) Dadra and Nagar Haveli, (c) Delhi, (d) Daman and Diu, and (e) Pondicherry. All proposals for such extension will be dealt with in the Ministry of Home Affairs who will examine them in consultation with the Ministry of Law and Justice, other departments concerned and also the Adminstration of the concerned Union Territory if considered necessary.
Regulations		9.33.1 Article 240 of the Constitution empowers the President to make Regulations for the peace, progress and good governance of the Union territories of (a) Andaman and Nicobar Islands, (b) Dadar and Nagar Haveli, (c) Daman and Diu, (d) Lakshadweep, and (e) Pondicherry. However, in the case of Union Territory of Pondicherry, this power is available only when the Legislative Assembly of Pondicherry is dissolved or its operation is suspended.
		9.33.2 The Ministry of Home Affairs shall initiate the proposals for promulgation of Regulations in consultation with the Ministries administratively concerned with the subject matter of the Regulation. After the Regulation is approved by the Cabinet, it is finalised by the Legislative Department and submitted to the President through the Minister of Home Affairs.
		**(i) Section 87 of the Punjab Reorganisation Act, 1966 in the case of Chandigarh.    (ii) Section 10 of the Dadra and Nagar Haveli Act, 1961 in the case of Dadra and Nagar Haveli.   (iii) Section 2 of the Union Territories (Laws) Act, 1950 in the case of  Delhi.

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Mediation: Stratergies and faq’s – 22August2010 – By Raghvendra Naik

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What is mediation?

Mediation is a negotiation process in which a neutral third party assists the disputing parties in resolving their disputes. A Mediator uses special negotiation and communication techniques to help the parties to come to a settlement. The parties can appoint a Mediator with their mutual consent or a mediator can be appointed by the Court in a pending litigation. Mediation always leaves the decision making power with the parties. A Mediator does not decide what is fair or right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.

Why my case is referred to Mediation?

Your case cannot be referred to mediation without both parties consent. You and the other party have to sign in front of the Judge for your case to be referred to the mediation centre.

What type of cases is referred to mediations?

Any case which is civil in nature can be referred to mediation.

Is referring the case to Mediation compulsory?

No. Unless both the party sign in front of the judge that they agree to mediation one cannot be forced.

What will happen if I do not attend mediation?

Once you agree for the mediation it is better if you attend. If on the particular day of mediation you are unable to attend mediation due to unavoidable reasons then call mediation centre and inform about it. You can also inform your advocate who in turn will inform the mediation centre and get a next date.

What is the duration of the mediation?

There is no fixed rule but in Bengaluru, normally the file referred for mediation for 60 days and normally 2-4 sittings happen.

Can a decision be forced on me by mediators?

No, no one can force a decision on you. Though there have been cases where the opposite party will threaten you with 498A and try to extract huge sum. Never succumb to such blackmail. You have the choice walk out of the mediation room if any such thing happens. Immediately report such things to the Director of the Mediation Centre with a written complaint against the opposite party and mediator.

Is the presence of lawyer must in mediation hall?

Normally only the parties concerned have to be present in the mediation centre. E.g. in a divorce proceedings only husband, wife and the mediator should be present. For assistance advocates can be present. There are instances where parents, relatives and friends are reported to be inside the mediation room. You have the right to object the presence of the persons who are not petitioner/respondent.

What preparation is to be done for mediation?

Reach the mediation centre in advance and recollect your case. Never give in to blackmail/threaten/extortion. Be cool and remember you have the option to speak to the mediator one to one.

What is the outcome of mediation?

The outcome of the mediation is normally out-of-court settlement agreed by both the parties which is signed by both the parties and then presented to the judge for his consideration. It includes all pending cases criminal and civil.

Is the outcome of mediation binding on both parties?

Normally once both the parties have signed the MOU, it is binding on them but there have been instances where one of the parties has gone back from the MOU and restarted the case. You have legal options and many judgments are available which deal with such situation.

Is mediator equal to a judge?

No, Mediator is an advocate and a member of advocate bar with experience of not less than 10 years.

Is there an enquiry done by mediator?

No, a mediator only listens to both the parties and explores the option of out of court settlement.

Do I have to present evidence to a mediator?

No

Will mediator record whatever I say in the mediation hall?

No, nothing is recorded in the room. Mediator only writes final report whether it failed or succeeded. He does not write anything about behavior of the parties or any such thing. A mediator is not a judge.

My wife is demanding huge amount in front of the mediator. What should I do?

Never give in to threat/extortion/blackmail.

My mediation is wrt the divorce case but I have 498a and DV also. What will happen to them?

When MOU is signed then you need to make sure that all the cases are settled.

My wife has agreed to give mutual consent divorce for 4 lakh rs in front of the mediator. What should I do?

Never give in to threat/extortion/blackmail.

My mediation has failed. Now what happens?

Nothing! Your file will be sent back to the judge and the case will start like normal case.

I feel the mediator has mingled with opposite party and trying to extract money.

Never give in to threat/extortion/blackmail. If you feel you are n=being cornered in the mediation centre and the mediator is unfair to you the just walk out of the hall and complain to the Director of the centre.

My wife has given a huge amount of money they claim as marriage expense. What should I do?

As told before mediation centre is not a place to appreciate evidence. It is not a court hall proceeding.

My wife is putting all false allegations on me. What should I do?

Don’t lose your cool. Deny allegations and remind the mediator that you will chose to walk out of the centre if baseless allegations are leveled against you.

Delhi Mediation Centre

http://delhimediationcentre.gov.in/index.asp

Bangalore Mediation Centre

http://nyayadegula.kar.nic.in/