Sub : Instructions regarding the procedure to be followed in the matter of the State Legislations requiring reference to the Central Govt.
Sir,
I am sending herewith a copy of the D.O. letter No. 23/114/2001/Judl dated the 18th September, 2001 from the Home Secretary, Ministry of Home Affairs, Government of India on the subject mentioned above, and to request you to ensure that the Bills and Ordinances requiring administrative approval of the Central Government or, as the case may be, the President's previous sanction or assent are referred to the Ministry of Home Affairs in accordance with the time schedule laid down in the said d.o. letter so as to give adequate time to the Central Government for processing such matters.
I am further to request you to adhere to the time schedule rigidly so as to avoid the risk of a time gap occurring in the enactment of legislation which has to come into force by specific date.
A copy of the letter No. 17/23/72-Judl. Dated the 3rd August, 1972 from the Ministry of Home Affairs, Government of India, and the D.O. letter No. 23/114/2001-Judl. Date the 18th September, 2001 from the Home Secretary, Government of India, under reference are enclosed herewith for ready reference.
Yours Faithfully,
Sd/-
V.M. Kothare
Secretary to Government
Encl. as above
KAMAL PANDE
D.O. No. 23/114/2001-Judl.
HOME SECRETARY,
Government of India,
New Delhi - 110 001.
Dated the September 18, 2001.
Dear Chief Secretary,
Instructions regarding the procedure and the time-schedule to be followed in the matter of the State legislations requiring reference to the Government of India have been issued by the Ministry of Home Affairs vide letter No. 17/23/72-Judl. Dated 3rd August, 1972 (copy enclosed for ready reference). It has been laid down that all State Legislative proposals should be referred to the Ministry of Home Affairs well in time for their examination in consultation with the concerned Central Ministries and for completion of other formalities.
2. It has been our experience that the State Governments do not follow these instructions, specially in regard to the time-schedule. There have been instances where State Bills seeking to extend the life of exiting legislations have been sent for obtaining the assent of the President just eight-ten days before the crucial dates from which they have to come into force, even though the expiry dates of the existing legislations were known years in advance. There have also been cases where State Bills seeking to replace Ordinances from a particular date have been sent to us for obtaining the assent of the President only two-three days before the material date.
3. There have been occasions when such time-bound Bills have been put up to the President for his assent on the same date on which they have to be enacted. The President's Secretariat had expressed unhappiness over submission of State Bills at such a short notice for obtaining the assent of the President and had desired that such proposals should be submitted to him at least a week in advance of the date on which these are to come into force.
4. As you are aware, processing of State Legislative proposals in consultation with the concerned central Ministries takes time. Quite often, the comments of the central Ministries have to be communicated to the State Governments for their consideration and for making such modifications in the proposals as may be found appropriate. The clarifications of the State Governments have again to be referred back to the Central Ministries, which made the initial observation, for obtaining their clearance.
5. In view of the foregoing, I would request you to issue suitable instructions to ensure that all State Bills and Ordinances requiring the President's assent/approval are referred to the Ministry of Home Affairs in accordance with the following schedule so as to give adequate time for processing them in the Central Government.
I. Ordinances
4 Weeks in advance
II. Time-bound Bills to replace Ordinances
3 weeks in advance.
III. Time-bound Bills to renew existing legislations.
4 months in advance.
IV. Other Bills -
(a) Bills for which prior administrative approval has not been taken.
4 months in advance
(b) Bills for which prior administrative approval has already been taken.
4 weeks in advance
6. In the case of time-bound legislations (vide categories II and III above), the time-schedule may be adhered to rigidly so as to avoid the risk of a time-gap occurring in the enactment of legislation which has to come into force by a specific date.
7. Further, while examining a Bill reserved by the Governor of a State for the consideration of the President recently, the administrative Ministry concerned pointed out certain drafting mistakes in the Bill, which required modification. As the Bill had already been passed by the State Legislature, any amendment/modification thereto could be authorised by the State Legislature only. To avoid delay in finalising the legislation, it was proposed that an amending Ordinance, incorporating the suggested modifications, would be promulgated simultaneously with the Notification of the Act, so that the inconsistency in the Bill could be rectified..
8. While assenting to the Bill, the President minuted as below :-
"I find that the instant State Legislation reserved for my consideration also contains some mistakes necessitating the concurrent promulgation of an amendment Ordinance. While conveying my assent to the Bill, I feel that it would be desirable to devise methods to preclude the possibility of legislations containing errors being reserved for consideration of the President."
9. Had the State Government concerned taken the prior approval of the Government of India before introduction of the Bill in the state Legislature, such a problem could have been avoided. The State Government are, therefore, requested to take utmost care while drafting the legislations and as a healthy and useful convention, also consult the Government of India before their introduction in the State Legislatures.
With regards,
Yours Faithfully,
Sd/-
Kamal Pande
Shri Subba Rao,
Chief Secretary,
Government of Gujarat,
Gandhinagar.
No. 17/23/72-Judl.
GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS
GRIH MANTRALAYA
New Delhi-1, the 3 Aug, '72.
12 Sravana, 1894.
To,
The Chief Secretaries to all State
Governments (except Jammu & Kashmir).
Sub :Procedure to be followed in processing State Legislation requiring references to Central Government.
Sir,
It is observed that in spite of clear advice given from time to time regarding the procedure to be followed for processing State Legislation which requires reference to the Central Government, the State Governments have quite some times not kept the advice in view while sending legislative proposals to the Government of India with the result that serious difficulties have been experienced on occasions in timely and satisfactory processing of the State Government's legislative proposals at the Centre. The procedure prescribed is, therefore, summarised once again as follows :-
Prior approval of the Government of India :
Legislation relatable to entries in the Concurrent List in the Seventh Schedule of the Constitution.
Bills attracting the provisions of Articles 31(2). 31-A(1) and 31-C of the Constitution that have to be submitted to the President for his assent under Article 31(3) the proviso to Article 31-A(1) and to proviso to Article 31-C respectively.
Bills on land reforms.
The Government of India should be:-
consulted, whenever possible in regard to official Bills before they are introduced in the State Legislature;
supplied with copies of non-official Bills, which are likely to go forward, at a convenient stage after their introduction in the State Legislature.
Informed, if time permits, of all important amendments to such non-official Bills,
Informed about any difficulties encountered in the working of laws falling within the Concurrent List of the laws attracting the provisions of Articles 31(2), 31-A(1) and 31-C of the Constitution, or of laws on land reforms;
Supplied with atleast six copies of all Bills, with the Statement of Objects and Reasons therefore. (In case the proposed legislation is an amending Bill, six uptodate copies of the principal Act, Notes on clauses of the proposed legislation and a comparative statement showing each relevant clause as it exists, and as it would read after the proposed amendment, may also please be forwarded).
Given at least a fortnight from the date of receipt of the Bills at the Centre for the examination by the Departments of the Central Government.
The procedure set out above, which is based on conventions need not be taken as restricting the discretion of the State Government to take independent action should they consider the need for such action so urgent that prior consultation is not possible. Although it is not obligatory to have prior consultation with the Central Government, yet prior concurrence of the Central Government would ensure that there are no complications subsequently when the Bills are sent for obtaining the assent of the President.
When Bills are referred for approval, the comments of the Government of India should invariably be awaited before the Bills are introduced in the State Legislature.
Previous sanction of the President for introduction of legislation in State Legislatures imposing restrictions on the freedom of trade and commerce under the proviso to article 304(b) of the Constitution.
Proposals for legislation to be introduced in the State Legislatures should be addressed to the Ministry of Industrial Development (Department of Internal Trade) and not either to the Ministry of Home Affairs or to any other Ministry even though the latter may be concerned with particular commodities or callings or trades or professions on which restrictions are sought to be imposed. Such proposals should be sent at least three weeks before the session of the State Legislature is scheduled to commence. The draft Bill should be accompanied by the documents referred to in paragraph 1(1) above.
Consideration and assent of the President :
Bills reserved for the consideration of the President should be transmitted to this Ministry, allowing a reasonable time of not less than a fortnight from the date of receipt of the Bills at the Centre for the examination of their provisions. The extent of repugnancy to existing Central laws on the subjects enumerated in the Concurrent List should be clearly explained in the forwarding letter in the case of legislation attracting this provisions of Art.254(2) of the Constitution. Similarly, in the case of legislation which is reserved for the consideration of the President for some other reason, the specific ground on which it is so reserved should be clearly brought out in the State Government's forwarding letter and the relevant provisions of the Constitution should be specifically quoted. The following documents should be forwarded along with such legislative proposals :-
three authentic copies of the Bill, printed on parchment paper, each endorsed by the Governor reserving the Bill for the consideration of the President, and leaving sufficient space below the Governor's signature for appropriate endorsement by the President.
Six other copies of the Bill as passed by the State Legislature.
Six copes of the Bill as introduced with the Statement of Objects and Reasons therefore.
The report of the Select Committee of the State Legislature, if any, along with three copies of the Bill as approved by that Committee.
In case the legislation is an amending Bill six up-to-date copies of the principal Act, notes on clauses of the proposed legislation and a comparative statement showing each relevant clause as it exists, and as it would read after the proposed amendment, may also be sent.
Ordinances requiring the previous instructions of the President under the proviso to article 213(1) of the Constitution.
All legislative proposals, which are to be enacted by means of an Ordinance and which require the previous instructions of the President under the proviso to article 213(1) of the Constitution, should be forwarded to this Ministry, allowing sufficient time, say a fortnight, for their examination. Six copies of the draft Ordinance, accompanied by other relevant documents mentioned above, should be forwarded. The forwarding letter should explain the necessary for the promulgation of the Ordinance, the object sought to be achieved by the proposed legislation and the specific ground on which it is considered necessary to obtain the President's instructions for the promulgation of the Ordinance. The relevant Articles of the Constitution which render such approval necessary should also be quoted.
2. It is requested that the procedure mentioned above may please be brought to the notice of all concerned, so that it is properly followed to ensure smooth and satisfactory examination of the State Government's legislative proposals. A certificate in the enclosed proforma duly signed by the officer concerned, may please be sent invariably with every such proposal to ensure that the various documents required in connection with the examination of the proposal at the Centre have correctly been attached.
3. It is requested that receipt of this letter may please be acknowledged.