Legislature

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.

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 importantfunctions 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 th 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 autochthony” 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. The legislature in India, functioning within the parliamentary system, is the totality of Central, State and local legislatures, their formal and informal arrangements, with inter linkages 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.
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.

CENTRAL LEGISLATURE/ PARLIAMENT

President

The President of India is an integral part of the Indian Parliament like the Crown of England and unlike the American President. However, the Indian President differs from the Crown of England in respect of his power and status, e.g. certain discretionary powers vis-a-vis legislation and administering of oath. The Constitution vests the power of carrying on the business of government in the President, but the President exercises this power under the Constitutional limitations, e.g. Article 74(1) “ the executive powers shall be exercised by the President of India ‘in accordance with the’ advice of his Council of Ministers, or Article 53(1) demands that the  resident must exercise his powers according to the Constitution.” The President represents the nation and is the symbol of unity and it is in this sense that (s)he is the “head of the state”. However, the post of  President has raised a few questions, such as, What exactly is a President supposed to do? How can he exercise the powers, formally or informally, vested in him by the Constitution?
Is the President something more than “the first citizen” or a “rubber stamp”? S.S.Khera says that he can certainly have a “mind of his own, free of all political trammels and without any urge or ambition to take an active hand in governmental decision making, ..... or towards changing the provisions of the existing constitution relating to his position and powers.” However, a harmonious correlation between the President and various legislative institutions has led to a sort of successful working of parliamentary democracy. For instance, the relationship between the President and the Prime Minister is crucial in legislation. A sore relationship between the two indicates problematic in the legislative issues and therefore will catch attention of the opposition and civil society for a sustained debate. The relationship may have political ramifications, which perhaps may be echoed in the President’s speech inside as well as outside the Parliament.Lok Sabha
The Parliament of India is bicameral. The Lower House is the Lok Sabha, or House of the people. Its members are elected on the basis of universal adult suffrage. Every adult citizen (18 years and above) is entitled to vote, other than non-residents, the insane, criminals and those who have been convicted of corrupt electoral practices. In a reserved constituency, only members of the Scheduled Castes and Tribes may run for office, but all adults within the constituency may vote. The two nominated seats are filled by the President with representatives of the Anglo-Indian community.
The system of voting is the single member constituency. The system has produced governments that have substantial majorities in the Parliament, yet lack endorsement from a majority of the voters. A proportional reservation system would have been fairer to opposition parties and more representative in a mathematically defined version of deliberative democracy. By and large, Parliament is fairly chosen with the help of the Constitutional body called the Election Commission. While individual seats may have been determined by musclemen or bribes, no general election in India has produced an overall result that was not a fair reflection of voter preferences. The term of the Lok Sabha is for a maximum period of five years, although in an emergency this may be extended to one year at a time indefinitely. There is no minimum term of the parliament. While the parliament may be dissolved and fresh elections held because a government has lost the confidence of the house, the more common occurrence is for a prime-minister to time a call for fresh elections with the goal of maximising personal or party political gains. The Lok Sabha is required by the Constitution to convene, twice a year, with a maximum allowable period of gap between the two sessions being six months. In practice the Lok Sabha has often met in three sessions per year. The language of parliamentary business is mostly Hindi or English, although a member may use any of the recognised official languages. The process of legislation involves three stages corresponding to the familiar three readings of bills in the parliamentary systems: the introduction of a bill, its consideration and its enactmentinto law. The first reading consists of the bill being introduced alongwith an explanation of its aim and purposes. After the second reading, a bill may be referred to select committee, circulated for public response or taken up for immediate consideration. The last course is rare and reserved for urgent and uncontroversial items. The second course is the most frequent. The select committee reports back either unanimously or with a majority recommendation and a minority note of dissent. The bill is then considered in the House clause by clause, with members being able to introduce amendments. Once all clauses have been dealt with, the bill has crossed the report stage, and is listed for its third and final reading, which is tidying-up amendments and then the bill is put to vote. If the speaker authenticates its passing, the bill is sent to the second house, where the entire procedure is repeated. When both Houses of Parliament have passed an identical version of a bill, it is presented to the President for formal assent, and becomes law on receiving his assent. The sessional and daily business of the government is decided by the cabinet and its Parliamentary affairs committee under the chairmanship of the chief whip. Each session of the Lok Sabha is opened with a presidential address. The quorum for the Lok Sabha to be able to meet is one-tenth of its membership. The Lok-Sabha is of course fundamentally akin to other Legislative Assemblies in Parliamentary regimes, its context can, however, be quite different, reflecting its own unique socio-political environment. The conduct of the House is in the hands of the Speaker who recognises members, keeps order and does other things, which are required of presiding officers. The speaker may not vote on an issue before the Lok Sabha, but can exercise a casting vote in the event of a tie on any motion. The Speaker is selected by the governing party for formal election by the House but is expected to conduct Parliamentary business with fairness and impartiality. Parliament is the central forum for amending the Constitution under article 368. The procedural powers are those which allow the parliament to make rules for the conduct of its business. The legislative powers pertain to the authority and role of Parliament in enacting laws for governing the country. Parliament is technically the legislature, the institution that enacts the law of the land and the authority of the people and the assent of the head of state. In reality the legislative agenda is controlled by the government and endorsed by the Parliament with the help of tightly maintained party discipline. The financial powers of Parliament are those empowering it to raise and spend money as it sees fit, including discussion and approval of the annual budget. Only the Parliament has the authority to levy taxes and spend money from the Consolidated Fund.
Parliament formally controls the reins of the government in the sense that the cabinet is required to have the confidence of the Lok Sabha and is collectively responsible to the Parliament. Under constitutive powers, finally, parliament can legislate to admit or create new states into the Union of India; to create a High Court for a Union Territory and to extend the jurisdiction of a High Court to or restrict it from a Union Territory; and to create or abolish a Legislative Council (an Upper House) for a state with the consent of the State’s Assembly (Lower House).
 

Rajya Sabha

Rajya Sabha or the Council of States is the Upper House of India’s bicameral Parliament. Three sets of reasons guided the adoption of bicameral legislature for the Union of India. First, Rajya Sabha as the name implies, was to be the chamber for representing and protecting the rights of the states in a federal polity. Rajya Sabha, therefore, has equal role and status to that of the Lok Sabha in the Electoral College for choosing the president. Members of state legislative assemblies elect Rajya Sabha representatives for their States on a proportional representation system. The Constitutional position of the Rajya Sabha is not comparable in power, functions or prestige to the US Senate when conceived of solely in terms of State rights. In the event of a deadlock between the two Houses of Parliament, for example, if reconsideration of a bill fails to achieve a mutually satisfactory resolution, then the president can convene a joint sitting of both the Houses. Its decisions are made by simple majority. Since Lok Sabha MPs outnumber their Rajya Sabha counterparts by more than 2:1, in a combined sitting, the Rajya Sabha can generally expect to be defeated. The second purpose of establishing a bicameral legislature was to provide an institutional opportunity for second thoughts and a wiser counsel even after the passage of a bill by the Lok Sabha. This largely depends on the party composition in both the Houses. Rajya Sabha’s role as critique seemed largely a chimera during the period of Congress party dominance. The third function of Rajya Sabha in the Indian system of governance is to enable a bill to be introduced in the Parliament even when the Lok Sabha is not in session. Much of the arliamentary debate and work on the bill can be completed by the time the Lok Sabha reconvenes.
In respect of certain specified federal features of the Constitution, the primary amending role has been given to the Rajya Sabha as the custodian of State rights. For example, the powers of Rajya Sabha itself can be altered only with the consent of a two-thirds majority in the Upper House. In theory, the House provides the means to bring in competent or skilled personnel who are not prepared to face the uncertain rigours of political campaigns. They can be appointed to the Rajya Sabha and be inducted into the cabinet without having to go through the formal process of elections.

Committees

The Lok Sabha operates with the aid of Parliamentary Committees. The composition of the committees is determined by the Speaker and the chief whip with due regard to the respective party strengths in the house. To prevent undue Executive influence, no minister who is in charge of a bill being considered by the committee, is permitted to participate in the deliberations of that committee.
Parliamentary Committees help to expedite Parliamentary business and to scrutinise the government activities. They may be divided into four broad groups: those that are concerned with the organisation and powers of the House, for example the rules committee; those that assist the House in their legislative functions, for example select committee; those that assist the House in making government departments more accountable, for example various standing committees; and those that assist the House in their financial functions such as Public Accounts Committee (PAC), Estimates Committee (EC) etc.
Parliamentary committees act as watchdogs in the Parliament to ensure culture of accountabilityand good governance. The financial committees, particularly, are regarded as the most important ones as they unearth ‘scams’ and the convention requires that their recommendations be implemented and to report to the Parliament on the follow-up-actions by the concerned minister.

STATE LEGISLATURE

State legislatures, while in most respects, are similar to the Parliament of India, there are some important differences. The choice of unicameralism or bicameralism was left to the states, depending on how they weighed the functions of the second chamber compared to the costs involved in running it. Any Legislative Assembly may create or abolish a Legislative Council for itself by a special majority (a majority of the total membership that is not less than twothirds of members present and voting), followed by an Act of Parliament (Article 169). The size of the Council must be no less than 40 and no more than one-third of the total membership of the Assembly (Article 171). Like the Rajya Sabha, one-third of a State Council’s members are elected biennially. Five-sixths of the Council Members (MLCs) are indirectly elected on a complicated formula involving graduates, educators and members of the Legislative Assembly (MLAs); and one-sixth are nominated by the Governor. But a state council’s role is even more circumscribed than that of the Rajya Sabha: it is merely an advisory house that may delay the passage of a bill but cannot compel modifications or abandonment. The Legislative Assemblies themselves vary in size from a minimum of 40 to no more than 500; their members are chosen for five-year terms by direct elections on the basis of universal adult suffrage. The State Assembly is subject to dissolution but not the Council. Because of the great difference in size between Parliamentary and State Legislative Constituencies, MLAs are far closer to the people than MPs. The MLAs are correspondingly the more significant political actors.