Law-making in Parliament and the control of arbitrary legislation

1. The constitutional framework

Parliament’s power to make laws comes from Article 245, distributed by Article 246 and the Seventh Schedule; the residuary power is in Article 248. Procedure is in Articles 107 to 122. The relevant Articles:

• Article 107 — a Bill (other than a Money Bill or financial Bill) may originate in either House; it is not passed unless agreed to by both; it does not lapse on prorogation; a Bill pending in the Lok Sabha lapses on its dissolution.
• Article 108 — joint sitting to resolve a deadlock (not available for Money Bills or constitutional amendments).
• Articles 109 and 110 — Money Bills originate only in the Lok Sabha; the Rajya Sabha may only recommend changes within fourteen days; the Speaker’s certificate that a Bill is a Money Bill is stated to be final.
• Article 111 — assent of the President, who may withhold assent or return a non-Money Bill for reconsideration once.
• Article 117 — financial Bills; Article 118 — rules of procedure; Article 122 — courts not to inquire into proceedings on the ground of irregularity of procedure.
• Article 123 — ordinances when Parliament is not in session; Articles 196 to 201 and 213 are the State equivalents.

2. The stages of a Bill

1. Pre-legislative stage. The administrative ministry formulates the policy, consults other ministries and, under the Pre-Legislative Consultation Policy adopted by the Union Government in 2014, is expected to publish the draft for public comment. The Legislative Department of the Ministry of Law and Justice drafts, and the Cabinet approves (see the note on legislative drafting).
2. Introduction and first reading — leave of the House, publication in the Gazette.
3. Second reading — general discussion on principles; the Bill may be referred to a Select Committee, a Joint Committee or (since 1993) a Department-related Standing Committee, which takes evidence and reports; then clause-by-clause consideration and amendments.
4. Third reading — the Bill is passed or rejected as a whole.
5. The other House — the same stages; disagreement leads to a joint sitting under Article 108.
6. Assent under Article 111, and commencement by notification or on the date fixed in the Act.

3. Points of judicial contact

• Article 122 and privilege. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 INSC 22, (2007) 3 SCC 184, the Court held that Article 122 bars review only for irregularity of procedure, not for illegality or unconstitutionality.
• Money Bills. In K.S. Puttaswamy v. Union of India (Aadhaar), 2018 INSC 880, (2019) 1 SCC 1, the majority upheld the certification of the Aadhaar Act as a Money Bill; Chandrachud J., dissenting, called it a fraud on the Constitution because it bypassed the Rajya Sabha. In Rojer Mathew v. South Indian Bank, 2019 INSC 1236, (2020) 6 SCC 1, a Constitution Bench held the Speaker’s certificate open to review and referred the correctness of the Aadhaar view to a larger bench.
• Ordinances. D.C. Wadhwa v. State of Bihar, 1986 INSC 280, (1987) 1 SCC 378, condemned the repeated re-promulgation of ordinances in Bihar without placing them before the legislature as a fraud on the Constitution; Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, held that failure to lay an ordinance before the legislature is a serious constitutional infraction.
• Anti-defection. Kihoto Hollohan v. Zachillhu, 1991 INSC 287, 1992 Supp (2) SCC 651, held the Speaker’s decision under the Tenth Schedule subject to judicial review.
• Legislators’ immunity. Sita Soren v. Union of India, 2024 INSC 161, overruled P.V. Narasimha Rao (1998) and held that the privilege in Articles 105 and 194 does not protect a legislator who takes a bribe to vote or speak.
• Assent. The 2025 decisions on Governors’ assent (see the note on judicial activism) concern the last stage of State law-making.

4. “Everything that is arbitrary in legislation vanishes”

The proposition expresses an ideal of the rule of law: law made through a public, deliberative process by representatives, in general terms and in advance, cannot be arbitrary in the way a ruler’s will can. Bentham’s case for codification and Dicey’s rule of law make a similar claim. Indian law-making supports it through three kinds of filter.

(a) Procedural filters

• Bicameral scrutiny, committee examination and recorded debate.
• Publicity: the Statement of Objects and Reasons, the Financial Memorandum and the memorandum on delegated legislation accompany every Bill.
• Pre-legislative consultation and committee hearings that let affected interests speak.
• The President’s power to return a Bill.

(b) Constitutional limits on content

• Article 13: laws inconsistent with Part III are void.
• Article 14 and arbitrariness. E.P. Royappa v. State of Tamil Nadu, 1973 INSC 213, (1974) 4 SCC 3, held that equality and arbitrariness are sworn enemies. Whether a statute could be struck down for arbitrariness alone was doubted in State of A.P. v. McDowell & Co. (1996), but in Shayara Bano v. Union of India, 2017 INSC 785, (2017) 9 SCC 1, Nariman J. held that legislation which is manifestly arbitrary — capricious, irrational or without adequate determining principle — violates Article 14. The test was applied in Joseph Shine v. Union of India, 2018 INSC 898, (2019) 3 SCC 39, to strike down adultery.
• The basic structure as a limit on constitutional amendment.

(c) Controls on delegated law-making

Because most rules are made by the executive under delegated power, the guarantee would be empty without limits on delegation and scrutiny by committees on subordinate legislation (see the next note).

5. Comparative note

• United Kingdom: the Parliament Acts 1911 and 1949 limit the House of Lords to delay; Money Bills certified by the Speaker; no judicial review of primary legislation.
• United States: separation of powers; the President’s veto can be overridden by two-thirds of each House; congressional committees dominate the process.

How this is examined

For the “arbitrary in legislation” question, explain what the proposition means, set out the stages of law-making as procedural safeguards, add the constitutional limits (Royappa, Shayara Bano), and conclude with the failures in section 4. A plain question on the law-making process in Parliament is answered from sections 1 to 3.