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Powers, Functions And Limitations of Legislative Organs

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 Parliament.

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.

# Discussions
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.

# Committees
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 Constitution.

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 national integrity.

# 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 money bill.

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 Constitution.

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 collectively.

# 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 resign.

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 General.

# 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 respectively.

# 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 reconsideration.

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 in India.

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 limitations too.

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 it.

# 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 judicially evolved.

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’, which 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 power.
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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