Legislature Unit IV Paper-II (Part-I)

Date: April 26, 2015

parliament of india lok sabha rajya sabha

Legislature: Introduction and Historical Backgound

 

INTRODUCTION

Modern nation state seeks political power to govern by the process of legitimacy attributed to it by its citizens. This political power is an essential instrument of State, in a democracy, for maintaining order and reconciling conflicts in the civil society. It also concerns itself with guiding humanity from lower forms of civilisation to higher forms. The State embodies the political goal of a society, and its institutions express the proper array of principles and techniques that are used in efforts to accomplish that very avowed goal. The entire range, scope, style, purpose and control effectuated by the state needs to be analysed to understand democracy at work.

Modern State, therefore, has undergone structural differentiation in the form of Legislature, Executive and Judiciary as methods of control and guidance to society at large. Out of these three institutions, legislature is a body that represents the people in two distinct ways. One, the representatives can transmit the fears and hopes of their constituencies to the other members of the legislature and to the executive. And second, legislature can represent the cross section of the nation, a “mirror image” of their “multi-cultural” society.

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LEGISLATURE

Legislature is often used synonymously with the term parliament. Legislature is derived from the Latin word “Lex”, meaning legal rule through legislation, and “Parliament” from the French verb “to speak”. Legislatures in the classic scheme of government were the law making bodies. Today it is associated with a multitude of functions and has undergone phenomenal structural differentiation. For instance, to exercise control over executive, one of the important functions it performs, various legislative committees and innovations in the interpellation procedure have sprung. Or, legislature is the site where most national “leadership” is trained in participatory democracy. Nevertheless, dialogical discourse in the form of contestations, deliberations and constitutive ethical laws remains at the core of the political process being situated in legislatures.

The post-colonial Indian legislature began its journey of democracy and political development since 1952, but the Indians were introduced to this novel institution of the legislature by the British. The chief means by which the British parliament usurped the monarch’s power of rule over subjects was “responsible government”. As early as 1833,during the colonial government, a conceptual distinction was made between the executive and legislative functions of the Governor-General Council. Further, with the introduction of the Indian Councils Act of 1861, there was both gradual expansion of the legislative tasks entrusted to the legislative councils, and a progressive incorporation of “natives” into the legislative machinery. Morley-Minto Reforms of 1909 sought to enlarge the imperial legislative council and provincial legislative council by including elected non-official members. An element of election was also introduced in the imperial legislative council. The deliberative functions of the legislative council were also increased, and it provided for the first time, a separate electorate for the Muslim community.

The belief persisted, nonetheless, that parliamentary politics was unsuitable to Indian conditions. Lord Morley, Secretary of State for India, read in the House of Lords during the first reading on the Indian Council Bill on 17 December 1908, “If the bill were attempting to set up a Parliamentary system in India, or if it would be said that this chapter of reforms led directly or necessarily up to the establishment of a Parliamentary system in India, I, for one, would have nothing to do for it.

However, the established British opinion had begun to change by the end of the First World War. The Montague-Chemsford Reforms of 1919 introduced substantive changes into the existing system. It brought further legislative reforms in the form of responsible government in the provinces through Devolution Rules and dyarchy. Indian legislature was made representative and “bicameral” and elected majority was introduced in both the Houses. Despite the declared aim of gradually developing self-governing institutions leading to the progressive realisation of responsible government in India, the political structure still remained unitary and centralised, with the Governor-General in Council continuing to be responsible, as before, to the British Parliament through the Secretary of State. Nevertheless, the roots of parliamentary democracy in India may be traced with these reforms.

Another major reform took place by the introduction of the Government of India Act 1935 which provided, among others, federation and provincial autonomy, dyarchy at the Centre, distribution of legislative powers between the Centre and the provinces, and six provincial legislatures were made bicameral. However, the Central Council retained control over provinces, advised, as before, the Governor General, and was not made responsible to the legislature. The Crown and the Governor General retained the power to veto bills passed by the Central legislature. The Governor General had ordinance making powers, independent powers of legislation or permanent Acts. Provincial legislature also suffered from similar kind of limitations.

In December 1946, when a constituent assembly was convened to work on the principle of “constitutional autonomy” as K.C. Wheare puts it, and to provide the structural arrangements of State power, it became quite evident that India would have its own legislature. The Government of India Act 1947 further made it clear, by abolition of the sovereignty and responsibility of British parliament, the crown no longer to be the source of authority and the constituent assembly to have dual function, constituent and legislative, till the framing of new constitution and the constitution of new legislatures, that India embarked on the process of democracy and development, with parliamentary government integral to its political system. The constituent assembly, therefore, framed the legislative provision of the constitution with the aim of creating a basis for the social and political unity of the country. Partition had made this task difficult.

 

Structure of legislature

The legislature in India, functioning within the parliamentary system, is the totality of Central, State and local legislatures, their formal and informal arrangements, with interlinkages and their interaction with the other state bodies and environment. The central legislature, also referred to as Parliament, consists of the President and the two Houses - Lok Sabha (House of people and Lower House) and Rajya Sabha (council of states and Upper House). The State Legislature shall include Governor and two Houses (Legislative Assembly and Legislative Council) in some of the states or one house (Legislative Assembly) in the rest (Article 168). The local legislature - Gram Sabha and Municipality- is an institution of self government constituted by the Constitution. The 73rd and 74th Amendment are still in the process of acquiring substantive legislative power to be devolved by the concerned state.

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For the purpose of legislation, the Constitution introduces a federal system as the basic structure of the government, wherein there is a threefold distribution of subjects between the Centre and the States enumerated in the Seventh Schedule, viz. Union List, State List and Concurrent List. There is also an effort to distribute the subjects between state and local bodies by incorporating the Eleventh Schedule into the Constitution by the 73rd and 74th Amendments. Such distribution of subjects is essential to make legislature at all levels responsible and accountable by following the ambit of items in the list. However, ambit is defined, in case of conflict, by the judiciary time and again.

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