Law is the body of principles recognised and applied by the State in the
administration of justice.-Sir John Salmond
Law has its different forms. It may be through the acts of the legislative
bodies, through the acts of the executive or the judicial precedents and legal
customs. But in the narrow sense we use the term ‘law’ as the law made by the
legislative bodies. So there arise a question as to who is a legislature and
what is its role in the law making process.
Legislative organs can be said to be a body which represents people’s will and
transfers it to the will of the state in the form of laws. And in the separation
of powers model, they also form the important part of the state.
The terms ‘Parliament’ and ‘legislature’ are usually used interchangeably as
generic terms for the elected represented body. But such legislative body takes
different names in different countries. i.e. for example legislative body in UK
is called to be ‘Parliament’ whereas the same in US is called to be Congress.
The term ‘Parliament’ also connotes the supreme law making body. And the law
made by them are called to be the primary and supreme legislations.
Powers and functions of these legislative organs also differ in different
countries. As in the case of US, the legislative branch is the American Congress
which is a bicameral legislature and the same consists of the House of
Representatives and also the Senate. In case of UK, the British Parliament
consists of the House of Common and the House of Lords. Indian Parliament also
has the two houses, the house of people or the Lok Sabha which is the lower
house and the Rajya Sabha, the upper house. Here the legislative power may be
limited as in case of American Congress and that of the Indian Parliament,
whereas the same would be a kind of ‘unlimited’ in the case of the British
Parliament. So the powers of legislative bodies may be strong or weak. It
differs. Their functions are also not identical. The pertinent point to be noted
is that it all depends upon the form of government a country adopts and upon the
relationship between its executive branch and the legislature.
Functions of Legislative Organs
# Function of Law Making
A modern Parliament, either in India or in any other country, is not merely a
law making body. It has many other functions to do. But still, the most
important function among them is the function of lawmaking.
The place of a legislative body in the law making process depends upon the
character of the principle of separation of powers recognized in a country. For
example separation powers are rigid in US and the same is flexible in UK. And
the very same is not strictly applied in India too. In these countries the form
of government also differs. The presidential form of government in US and the
parliamentary form of government in UK and India also have different impacts.
When we have a look into the parliament of India, Indian Constitution provides
for Parliament at the Union with President and the Lok Sabha and Rajya Sabha as
the two houses . The structure of state government closely resembles to that of
the Union Parliament. Legislature of the State consists of the Governor and the
two houses, namely Legislative Assembly and the Legislative Council where most
of the states have adopted the unicameral way of legislature in the states i.e.
the legislative assembly.
As in the Parliament, President does not actively participate in the
deliberations of the two houses. But he is an essential element of the
parliament as he has different functions such as to summon the two houses, to
prorogue them and in dissolving the House of People. And a bill takes effect
only after the President has given his assent to it.
Lok Sabha or the House of people is elected directly by the people on the basis
of adult suffrage. This house in its composition corresponds to that of the
House of Commons in UK and to certain extends to that of the House of
representative in US.
The Council of States can be said to be a continuing body, where 1/3 rd of its
members retires every two years and its members are elected by an electoral
college in accordance with the system of proportional representation by means of
single transferable vote. Its composition corresponds and is comparable with
that of the US Congress Senate in giving its representation to the States.
Parliament can make laws on a wide range of subjects allotted to it under the
Union and the Concurrent lists in the VII th schedule to the Constitution.
Residual powers also vests with the parliament in the matters that are not
specifically assigned to the States. States can make law on subjects enumerated
in the State list.
The procedure to enact laws are also detailed in the constitution, where a
legislative proposal may be initiated in either house of the Parliament, in the
form of a bill, and it should be passed by both the houses and the same should
get the assent of the President. And in case of any disagreement between the two
houses, a joint sitting may be summoned by the President . This call for a joint
sitting of the both houses by the President is a unique feature of the Indian
In US, a convention has been established to resolve such differences between the
houses through a joint conference of selected representatives’ of both houses of
Congress. But if the report of this conference is rejected by either of the
houses, the proposal of bill is also dropped. So the joint sitting procedure in
Indian Parliament can be said to be a unique feature.
# Administrative Accountability Function
In India, Parliament does not interfere with the day to day administration of
the executive but exercise surveillance on it. Parliamentary scrutiny is
exercised through various procedures like questions, motions, discussions etc.
# Question Hour
Question hour is the hour where members of the parliament can raise any question
with regard to the administrative activity. There the concerned minister is
obliged to answer to the parliament, either orally or in writing. Questions may
be either starred or non-starred. Starred questions are those for which an oral
answer is expected and non-starred for which a written reply is expected.
Generally a notice period of 15 days is to be given to the minister to make him
reply to a question raised. But if it is urgent, with the permission of the
speaker the same can be raised.
This question hour in Indian Parliament is similar to that of the Prime Minister
Questions in the House of Commons in UK, where during every Wednesdays at noon
when the House of Commons is sitting, the Prime Minister spends around half-an
hour answering questions raised by the members. And where the Prime Minister is
away on his official business, then his role is usually filled by the Deputy
Prime Minister and if he too is not available, the next most senior member of
the cabinet will receive questions. This question hour procedure is also
practiced in different countries in different names, as Question Period in
Canada and Question Time in Australia. In US, as there is the Presidential form
of government, there is no particular procedure of question hour as such.
When the member who raised a question feels that the answer given to a question
is not complete, he may be allowed by the speaker of the house to raise a
discussion in the house for half an hour. This is generally termed as the Half
an Hour discussion. During discussions, the members have full liberty to
criticise the administrator for their past performance and can even suggest how
they should act in future. In UK also there is the half-hour debate where
members raise questions in the Westminster Hall.
Another method of having administrative surveillance is by way of Parliamentary
Committees. They may be either Standing Committees or the Adhoc Committees.
Standing Committees are constituted every year and they work on a continuous
basis whereas the Adhoc Committees are created temporarily for a specific task.
There are Standing Committees both in Lok Sabha and Rajya Sabha. They exercise
certain functions such as they enquire, scrutinise and review the whole range of
administrative actions. These Committees are similar to that of the Select
Committees in UK.
# Executive Responsibility
In India, head of the executive is the President and the executive
powers are vested in him and are taken in his name. But he is only the formal
head as he acts only on the aid and advice of the council of ministers.
The parliamentary control over the executive is based on the constitutional
provisions of collective responsibility of Council of ministers to the House of
people. This has been specifically enshrined in Article 75(3) of the Indian
In UK also the concept of collective responsibility is accepted. US Constitution
does not recognize this concept as there is President, who is having the
ultimate power of decision making and he is the one who ensure that the law made
by him is faithfully executed.
# Collective Responsibility
The collective responsibility concept lies on the principles that the minister
must not vote against the government policy or speak against the government
policy and all the decisions taken by a minister is the decision of the
government. The ministers are also individually responsible to the head of the
State in the sense that Ministers hold office during the pleasure of the
President. But again the President acts only on the advice of the council of
misters headed by the Prime Minister. So ultimately the government can make a
minister resign if he acts against the government policy. In collective
responsibility, if a no-confidence motion is been passed, the whole government
has to resign. So ministers are individually and jointly responsible to the
house. But it is also certain that the government can overcome the same if it is
a majority government and gains public confidence.
# Adjournment motions
Another method of having control over the executive is by way of introducing
adjournment motions in the houses, to invite the attention of members of the
house towards a serious problem seeking public attention.
# Cut Motions and Censure motions
Cut motions are where the members of Lok Sabha have veto power to oppose a
demand in the financial bill discussed by the government. And if the same gets
passed, ultimately the government has to resign. Censure motions are brought
when the ruling government fails to act according to their policy.
# Representational Role
It is also the primary function of the legislative organs in the modern
democracy to represent the people. They represent the changing needs and moods
of the people. They represent as well as give expression to their difficulties,
problems and grievances and seek redressal for the same in the house.
# Conflict Resolution And National Integration Role
Conflicts are natural to man. Conflicts may be either of ideas or interests or
may be for the struggle for power by various contending forces. The role played
by the Parliament in resolving conflict is great. That is there the members of
parliament who are from the different parts of the country irrespective of their
caste, creed, religion or region; they meet informally and discuss in groups
the problems which affect the country as a whole. It creates the feelings of
# The Informational Role
The parliament also has its significant function of informational role. That
means the parliament has right of being informed. Government should feed the
parliament with information’s by way of reports or by way of lying papers on the
table of the house or by placing documents in the parliamentary library. Based
on this the parliament may discuss on its shortcomings.
# The Leadership Role
Parliament or the legislative organs also functions as a nursery for the
political leadership. And these political leaders are one who can influence the
society towards attainment of their specific goals. They built relationship with
the Stakeholders and have a great impact on the wellbeing of the nation itself
and for its people also.
Powers of Legislative Organs
# Legislative Powers
Legislature has different powers and its main power can be said to be the power
to enact laws. In total the legislature has the power to regulate the rights and
obligations of the people, in accordance with the constitutional provisions.
As already state the legislature in India includes the Parliament at the centre
and legislative assembly and legislative councils at the state level. They make
laws on the subjects enumerated in their lists concerned. But the Union
Parliament has certain powers to enact laws over the subjects stated in the
state list under certain circumstances. They include when a national emergency
is proclaimed, or in case the Rajya Sabha passes a resolution with 2/3 rd
majority that for national interest the parliament should make laws on subjects
in state list, or for the reason of implementation of international treaties,
and during the period of presidential rule is in force and also in case where
the states concerned itself passes such a resolution seeking it.
In another aspect when we look into the powers of the houses to enact a law,
particularly in the financial matters, power of the Rajya Sabha can be said to
be limited, merely having the power of a delaying veto. A money bill shall be
introduced only in the House of People. And after the same gets passed, it
should be sent to Rajya Sabha for its recommendations and the Rajya Sabha should
within 14 days, return it to the Lok Sabha with recommendations. If not the bill
is deemed to be passed and even if it is sent back with recommendations, the
same may or may not be adopted by the Lok Sabha. And also the President cannot
withhold his assent and he even does not have the power of veto in case of a
This situation is similar to that of the House of Lords in UK, where they do not
have any power, even the power to make recommendations for the consideration of
the House of Lords. In US too, a revenue bill can be originated only in the
House of Representative and not in the Senate.
The law making power of the legislature also includes the power to delegate its
power to the executive. That is in this modern democracy, although the supreme
law making body is the legislature, most of its law making power has been
delegated to the executive. Particularly in India, due to various numbers of
reasons such as lack of parliamentary time, lack of expertise and also to meet
unforeseen emergencies, the same can be delegated. But as held by the honourable
Supreme Court in the case of Re Delhi Laws Act case the essential legislative
functions cannot be delegated. And the law made by such delegates is known to be
the subordinate legislation and they may the rules, regulations etc and these
have the same force as law as defined under article 13 of the Indian
As there exists the strict application of ‘separation of powers’ theory in US,
delegated legislation is not entertained there. But in the recent periods, the
judiciary out there has taken a liberal approach and had upheld a number of
delegations. Whereas when looked into UK, delegated legislation is a kind of
unlimited there, as constitutionality and separation of powers does not become a
limitation there upon it. But although these delegations are allowed the same is
always subjected to the legislative control as well as to the judicial control.
# Executive Powers
The legislative control over the executive is through various methods such as
the principle of collective responsibility, committees etc as already discussed.
Executive is responsible to the legislature individually as well as
# Financial Powers
The parliament or the legislature controls the financial matters. The government
passes the budget before the starting of a new financial year. And the
parliament discusses over the budget and gives assent to that bill. And no money
can be spent or no tax can be imposed without the approval of the Parliament. If
the budget does not get passed then also ultimately the government should
To keep a vigil on how the executive spends money granted by the legislature,
there are two standing committees. They are the Public Accounts Committee and
the Estimates Committee. The public Account Committee oversees the financial
functioning of the government based on the audits Comptroller and Auditor
# Judicial Powers
Judicial powers of the parliament includes the power to impeach the President
for violation of the Constitution, the power to remove the judges of Supreme
Court and High Court on the grounds of proved misbehaviour and incapacity, the
power to remove the Vice President etc.
Certain consequential powers are also vested in the Parliament so as to protect
the privileges and immunities vested in it. It includes the power of the
legislature to punish any person, whether he is a member or not, for the breach
of privilege or for contempt of the house. This power is also the most important
privilege too. Parliament and State Legislature has also the power to judge for
themselves what is right and what is wrong. And if the contempt is committed in
the immediate presence of the house, the contemnor may or may not be heard. He
may be taken on immediate custody and if he apologizes and if the House pleases,
he may be left free.
Each House has also power to execute warrant to punish a person who commits the
contempt. The punishment may range from admonishment which is the mildest form
to reprimand, the most serious one. If the contemnor is a government officer or
employee, punishment may extend to departmental action too. In case if the
contemnor is a member of the house the punishment may range to suspension or
expulsion of such person from the house.
Speaker of the House is the person who has the authority and power to inquire
into a matter of contempt and pass orders. And if the speaker comes to the
conclusion that a person has violated or committed an offence, he may report to
the House and a motion may be moved to punish him for such contempt of the
House. Speaker has the power to take action suo moto also.
The legislature also has certain other consequential powers such as the power to
compel the attendance of witness and to provide documents, the power to regulate
its own procedure and conduct of business and also the power to exclude
strangers from the house.
This power of the Indian parliament is similar to that of the Congress power to
punish for contempt of Congress, for libelling a member of Congress. The power
to punish its contemnor also vests with the House of Commons of UK, established
through precedents there.
# Electoral Powers
Elected members of the Parliament and elected members of the Legislative
assemblies as well as the elected members of the legislative assemblies of the
Union Territories participate in the election of the President, the head of the
Executive. Members of both Houses of Parliament participate in the election of
the Vice President. Houses also participate in the election of the Speaker and
Deputy Speaker to the Lok Sabha and Deputy Chairman to the Rajya Sabha
# Constituent Powers
Article 368 of the Indian Constitution provides specific provision for amendment
of the Constitution and the Parliament is the repository of the constituent
powers of the Union. For an amendment, a bill should be introduced in either
Houses of the Parliament so that the constitutional amendment has been
exclusively reserved for the Parliament. And the provisions of the Indian
Constitution can be amended by the Parliament only by a special majority, not
less than 2/3 rd members of each house present and voting. In case of limited
categories of constitutional provisions, special majority needs to be ratified
by the legislature by not less than half of the States. And also, the
Constitution Amendment Bill, as duly passed or ratified should be presented to
the President and the President should give his assent and there he has no
option to withhold his assent or to return the bill to the House for
The Parliament also has the power to alter, repeal or amend any provision of the
Constitution and such amendments cannot be question before any court of law on
any ground unless they tend to alter or violate the ‘basic structure’ of the
Constitution. The ‘basic features’ as defined by the court has not been
foreclosed and the same has been interpreted by different judges in different
cases in a very wide manner.
# Control Over The Judiciary
This can be said to be peculiar feature of the legislature in U.K, the best
example of a Unitary Constitution. In England, the Courts are subordinate to the
legislature. They do not derive their powers from a Constitution as there is no
written Constitution. They derived certain powers from the common law and
certain other powers from the statutes. And in any case these powers can always
be diminished or increased by the legislature.
Another context is that they do
not posses any power to override the legislation passed by the parliament. This
position of judiciary emanates from the principle of parliamentary sovereignty.
But this concept does not apply to the case of judiciary in India. Framers of
the Indian Constitution envisaged a higher Judiciary, independent, impartial and
powerful to check the arbitrary exercise of state power. Indian Constitution
being a written Constitution imbibing in itself the federal characteristics,
guarantees supremacy of the Constitution. Though we have adopted the
parliamentary system of government from the British Constitution, as regards the
position of the judiciary we have adopted the judicial system similar to that of
the U.S Constitution.
U.S has adopted a constitutionally limited and controlled government. They have
strong separation of powers between federation and federating units and give its
prime importance to supremacy of constitution and judicial review.
# Miscellaneous Powers
Miscellaneous powers of the Parliament of India includes
i. The power of the parliament to create a new state or the power to change
names or alter the boundaries of a State by procedure of law.
ii. Parliament’s power to create or abolish the Legislative Council of a State
on recommendation of the Legislative Assemblies of such State concerned.
iii. Parliament has the power to impose emergency.
Limitations of Legislative Organs
Parliament of India is a creation of the Constitution and hence for that reason
itself, it has its limitations too. It means ‘limited government’, namely, that
all the organs setup by the Constitution are vested with only limited powers by
the Constitution, so that none can claim unlimited power or legal omnipotence.
# Written Constitution as a Limitation
Written Constitution is a law which imposes limitations upon all organs of the
state. It follows only when such constitution is treated as a legal instrument
of a higher order than ordinary law, and acts as a legal limitation upon the
powers of all the organs of State which are setup by the Constitution, as in the
U.S and India.
# Judicial review as a Limitation
Judiciary can be called to be the guardian of the Constitution and it enforces
it and declares any law passed by the legislature void, if any of its provisions
are violating of the constitutional provisions particularly the ‘fundamental
rights’ and the ‘basic features of the constitution’. The final authority of the
Supreme Court in India to decide the validity of a law, gives the court a great
discretionary power without any accountability whatsoever and a consequent
development is the judicial activism. In a federal constitution, Judiciary
apart from this function also has the function of guarding the Constitution
against transgression by the organs of the National Government and the State
Governments into their spheres. This has been well accepted in U.S.A as well as
The doctrine of judicial review has acquired different nuances during the course
of its evolution in the UK, U.S.A and India. While the origins of judicial
review can be traced to the United Kingdom which has no written constitution, it
has become firmly established in the U.S, with a written constitution
establishing a federal polity.
# Judicial review of Parliamentary privileges and proceedings.
Though Constitution guarantees certain rights and immunities to the House and
individual MPs so that they may discharge their parliamentary duties
effectively, and though these may not be called in any court of law for
irregularity of procedure , in several decisions court have asserted their power
of judicial review over this. Supreme Court has held that the judiciary may
examine whether this exercise of privileges is consistent with the fundamental
rights of the citizens or not.
# Procedural and Substantive Limitations.
Limitation may be either procedural or substantive. Procedural limitation may be
on the mode of making a law. Such limitations exist both in federal as well as
unitary constitutions. Whereas substantive limitation on the other hand, is with
respect to the subject matter on which a law may be made. Such limitations exist
in federal constitutions where legislative powers are distributed between the
federal and state legislatures. Since States are territorial units,
jurisdictions of various State legislatures under a federal constitution are
also limited within their respective territories. So there exist territorial
The essence of different kinds of limitations as aforesaid are intended to be
mandatory or legally binding as limitations upon the legislative powers. So
there arise a question as to whether the validity of an enactment can be
challenged before a court on the ground that requirement of relevant
constitutional provisions were not complied with, and whether the subsequent
statute passed by such legislature is void or not?
In UK, as there is no written constitution, the Parliament possesses legislative
sovereignty. So any law passed by it cannot be questioned before any court on
such grounds. So even if any such breach of procedural rules exists, it is with
the legal competence of the Parliament to determine the validity of the same. In
US as well as in India, though Legislature has power to prescribe its own
procedure ultimately the power to determine ‘the validity of a law’ or the
competence of the legislature to enact such a statute vests with the courts. So
if certain procedures are mandatory and are clearly prescribed in the
Constitution, and if the same is not been followed, it could be interfered by
the courts. But if such procedures are only directory in nature, it may not
render itself act as a legal limitation upon the power of legislature to enact
# Implied Limitations
There also exist many implied limitations which are not expressly provided in
the constitution. They are not mere limitations upon the legislature but also
upon the executive and the judiciary. These implied limitations have been
So there also a question arise, as to how the court assumes such power to add
implied limitations upon the express provisions of the written constitution.
The answer lies in the fact that, it is the courts power to interpret the
express provisions of the constitution. And it is also the function of the
courts to interpret the constitution. More of a kind, we call it the ‘judicial
activism’. That means an express limitation by way of a fundamental right may be
amplified by this process and so implied limitations also becomes its integral
part. ‘Right to privacy ’ and ‘Right to live with dignity’ , ‘Right to free
legal aid’ are thus now an integral part of Article 21and so on a number of
principles has now become established by a catena of case laws.. And also
principles such as ‘Equal pay for equal work ’ have now become the integral part
of ‘Right to Equality’ under Article 14.
# Doctrine of ‘Separation of Powers’ as a Limitation
The doctrine of ‘Separation of Powers’ means that none of the three organs of
the state can exercise any power which properly belongs to the other. There is
complete absence of this doctrine in countries like U.S.S.R and China.
In India, Constitution vests only the executive power with the President and no
such attempt of vesting has been done in the case of legislative and judicial
functions. Hence there is no strict application of this doctrine in India.
In UK, as the constitution is unwritten, there is no constitutional limitation
upon the powers of the legislature, and as it go by the name of the
‘parliamentary sovereignty’. So there even if the legislature encroaches into
the functions of the other organs, there is no authority including judiciary to
declare it as void. In US, this doctrine strictly acts as a limitation upon the
legislative organs as there is its strict application. So organs cannot encroach
into any powers or functions of any other organ, which have been specifically
vested by the Constitution.
# Principle against delegation of constitutional powers as a Limitation.
It is the common law maxim that ‘delegata potestas non potest delegare
follows the theory of Separation of Powers, is also a limitation upon the
legislature. Here the distinction has to be made between the delegation of
essential functions of the legislature as well as the non-essential or ancillary
functions. The delegation of essential legislative function will be construed to
be violation of this principle. But ‘subordinate legislation’ and ‘conditional
legislation is an exception to this.
# Bar as to discussion of conduct of judges as a limitation.
No discussion shall take place in the Legislature of a state or in the
Parliament with respect to the conduct of any judge of the Supreme Court or of
the High court in the discharge of his duties( Article 121 and 211 of Indian
Constitution). The only exception appears to be in the case of impeachment
proceedings. But though it appears so even if there is any violation of these
limits it would still be a matter that can be decided exclusively by the
parliament and courts have no jurisdiction to inquire into such matters.
# Legislative vacuum being a limitation as it paves way for ‘judicial activism’
and ‘delegated legislation’ in India.
Due to inadvertence, lack of exposure to the issues, the absence of legislation
or indifference of the legislature has paved way for judicial activism as well
as delegated legislation in India. Thus it can be said to be failure of a
competent legislature. Such an exercise by the Supreme Court could be seen in
Vishaka v. State of Rajasthan
where a three bench judges bench of the S.C
headed by Chief Justice Verma, specifically declared that “ some guidelines
should be laid down for the protection of these rights ( of working women
against sexual harassment) to fill the legislative vacuum.
# The theory of basic structure as a limitation on the legislature’s amending
On the question of validity of the Constitution (24 Th amendment) Act of 1971,
in the leading case of
Keshavanda Bharati v State of Kerala
, it has been
upheld, that the power to amend the constitution is found in Article 368 itself.
This empowers the basic structure doctrine which has been a non-exhaustive
concept, interpreted by different judges in a number of cases. Post – Keshavanda
Bharathi scenario is the best to analyse this. The amending power of the
legislature being only a power conferred on it by the Constitution; it is a
power within and not outside the constitution. Supreme Court is the custodian of
the basic structure and this ‘limited’ amending power is a part of the same and
hence the amending body cannot convert this limited power to unlimited power.
Constitution of India is the law of our land and all the three organs, the
Legislature, the Executive and the Judiciary are the machineries formed under
the foundation of this Constitution. Constitution of India is been formed on the
principles of rule of law, so Legislature in India has been vested with its
constitutional functions and powers and so has limitation too. It can be said
that the prime function of legislature is to anchor for the will of the people
and to enact laws. But legislature is not the actual law makers but the
executive is. And judiciary plays its vital role in guarding the constitution,
the sentinel on the qui vive. But the most interesting is that, though
separation of powers is been upheld to be basic structure of the Indian
Constitution, since the past decades and especially through recently
pronounced wide number of landmark judgements, it remains a question as to how
far this is applicable in India. And the judiciary blames Legislature for not
doing anything worthwhile, whereas the Legislature blames back the Judiciary of
doing the job of the legislature. But it would wrong to conclude that
legislative bodies have only small role in the law making process. The
coordination of the legislature and the executive is necessary to realize the
real concept of ‘rule of law’ in a State.
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