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UNIT III

(MACHINERY OF GOVERNMENT)

Constitution

➢ The term Constitution is derived from the Latin word "Constitute" meaning "to
establish". It is the basic document of the state.
➢ Aristotle defined Constitution as "the way of life which the state has chosen for
itself". Austin says that Constitution fixes the structure of supreme government.
➢ In simple words, we can say a Constitution is the constitutional law of the state.
Constitutional law enjoys the position of being the supreme and fundamental law of
the state.
➢ It lays down the organisation and functions of the government of state. The
Government can use only those powers which the Constitution grants to it.
➢ "Constitution is the collection of principles according to which the powers of the
government, the rights of the governed and the relations between the two are adjusted.
➢ "Constitution is a body of judicial rules which determine the supreme organs of state,
prescribes their modes of creation, their mutual relations, their spheres of action and
the fundamental place of each of them in relation to state."
➢ "Constitution of a state is that body of rules or laws; written or unwritten which
determine the organisation of government, the distribution of powers to the various
organs of government and the general principles on which these powers are to be
exercised."
➢ Constitution is the sum total of the constitutional laws of the state as it lies down:

- Organisation and powers of the government

- Principles and rules governing the political process

- Relations between the people and their government

- Rights and duties of the people.

➢ The government of state gets organised and works in accordance with the provisions
of the Constitution. People get their rights protected from the constitution. No one, not
even the government, can violate the Constitution.

Features of Constitution

➢ It is a body of rules, maybe written or unwritten


➢ Determines the powers of organisations of govt. and privileges of the subjects
➢ Lays down certain rules of the organs of the govt., their powers and their mutual
relationship
➢ It may be in a single or several documents, in detailed or short and brief form and has
provision of rights and duties
➢ Constitution is the fundamental law of a state and it varies from country-to-country. A
government of country is no longer run according to the whims and fancies of an
individual but it is run accordance to the Constitution
➢ Constitution must be systematically written. It should incorporate the constitutional
law of the state and enjoy supremacy.
➢ It should have the ability to develop and change in accordance with the changes in the
environment and needs of the people.
➢ It should be neither unduly rigid nor unduly flexible. It should clearly define the
organisation, powers, functions inter-relations of the government of the state and its
three organs.
➢ It must provide for Fundamental Rights and Freedoms of the people.
➢ It must provide for the organisation of a representative, responsible, limited and
accountable government.
➢ It must provide for:
- Rule of Law
- De-centralisation of powers
- Independent and powerful Judiciary
- A system of Local self-government
- A Sound Method of Amendment of the Constitution
- Process and Machinery for the conduct of free and elections
➢ The Constitution must clearly reflect the sovereignty of the people.
➢ The language of the constitution should be simple, clear and unambiguous
➢ The Constitution must empower the judiciary with the power to interpret, protect and
defend the Constitution and the fundamental rights and freedoms of the people against
the possible legislative and executive excesses.

Features of the Constitution of India

➢ Longest written constitution


➢ Partly Rigid and Partly Flexible
➢ A Democratic Republic
➢ Provides for Parliamentary System of Government
➢ Has A Federation
➢ Consists of Fundamental Rights
➢ Has Directive Principles of State Policy
➢ Enlists Fundamental Duties
➢ Shows Secular State.
➢ Comprises of an Independent Judiciary
➢ Mentions about Single Citizenship
Purpose of Constitution:

➢ Each state has a Constitution which lays down the organisation, powers and functions
of the Government of the State.
➢ The government always works according to the Constitution, no law or order of the
government can violate the Constitution. Constitution is the supreme law and all
government institutions and members are bound by it.
➢ Constitution enjoys supreme importance in the state because:
- It reflects the sovereign will of the people.
- It lies down of the aims, objectives, values and goals which the people want to
secure.
- It contains description and guarantee of the fundamental rights of the people.
- It gives a detailed account of the organisation of the government; the organisation,
powers and functions of its three organs and their inter-relationship.
- In a federation, the Constitution lays down the division of powers between the
central government and the governments of the federating states/provinces. It is
binding upon both the centre and the state governments.
- It specifies the power and method of amendment of the Constitution.
- It lays down the election system and political rights of people.
-. It provides for independence of judiciary and rule of law.
- The constitution governs all and no one can violate its rules.
➢ Every democratic Constitution guarantees to the citizens a protection against arbitrary
governmental actions. A democratic state, like India, has a written and supreme
constitution which binds its entire people and their government.

Types of Constitution

➢ Written Constitution
- A written constitution means a constitution written in the form of a book or a
series of documents combined in the form of a book.
- It is a consciously framed and enacted constitution. It is formulated and adopted
by a constituent assembly or a council or a legislature.
- "A written constitution is a consciously planned constitution, formulated and
adopted by deliberate actions of a constituent assembly or a convention."
- It provides for a definite design of government institutions, their organisations,
powers, functions and inter-relationships.
- It embodies the constitutional law of the state. It enjoys the place of supremacy.
The government is fully bound by its provisions and works strictly in accordance
with its provisions.
- A written constitution can be amended only in accordance with a settled process
of amendment written in the constitution itself. It is a duly passed and enacted
Constitution.
- The Constitutions of India, the USA, Germany, Japan, Canada, France,
Switzerland and several other states, are written constitutions.
➢ Unwritten Constitution
- An unwritten constitution is one which is neither drafted nor enacted by a
Constituent Assembly and nor even written in the form of a book. It is found in
several historical charters, laws and conventions.
- It is a product of slow and gradual evolution. The government is organised and it
functions in accordance with several well settled, but not wholly written rules and
conventions.
- The people know their Constitution. They accept and obey it, but do not possess it
in a written form. An unwritten constitution cannot be produced in the form of a
book.
- However, an unwritten constitution is not totally unwritten. Some of its parts are
available in written forms but these do not stand codified in the form of a legal
document or a code or a book.
- "An unwritten constitution is one in which most and not all, rules are unwritten
and these are not found in any one charter or document."
- The Constitution of the United Kingdom is an unwritten constitution.
➢ Flexible Constitution
- A Flexible Constitution is one which can be easily amended. Several political
scientists advocate the view that a flexible constitution is one in which the
constitutional law can be amended in the same way as an ordinary law.
- Constitutional amendments are passed in the same manner by which an ordinary
law is passed.
- British Constitution presents a classic example of a most flexible constitution. The
British Parliament is a sovereign parliament which can make or amend any law or
constitutional law by a simple majority.
- Laws aiming to affect changes in a constitutional law or in any ordinary law are
passed through the same legislative procedure i.e., by a simple majority of votes in
the legislature.
- Similarly, a Constitution is flexible when the procedure of amending it is simple
and the changes can be made easily.
- Has ability to change easily in accordance with the changes in the social and
political environment of the society and state.
- It is very helpful in meeting emergencies because it can be easily amended.
- Because of its dynamic nature, there are fewer opportunities for revolt. The
constitution has the ability to keep pace with the changing times. The people do
not feel the need for revolutionary changes.
- Since the flexible constitution keeps on developing with times, it always continues
to be popular and remains up-to-date.
- Sometimes a flexible constitution is often, a source of instability. Flexibility
enables the government in power to give it a desired dress and content.
- Also it is not suitable for a federation. In a federation, a flexible constitution can
lead to undesirable changes in the constitution by the federal government or by the
governments of federating units.
➢ Rigid Constitution
- The Rigid Constitution is one which cannot be easily amended. Its method of
amendment is difficult. For amending it, the legislature has to pass an amendment
bill by a specific, usually big, majority of 2/3rd or 3/4th.
- For passing or amending an ordinary law, the legislature usually passes the law by
a simple majority of its members.
- A rigid constitution is considered to be the most fundamental law of the land. It is
regarded as the basic will of the sovereign people. That is why it can be amended
only by a special procedure requiring the passing of the amendment proposal by a
big majority of votes which is often followed by ratification by the people in a
referendum.
- The Constitution of United States of America is a very rigid constitution.
- A rigid constitution is a source of stability in administration. It maintains
continuity in administration.
- It cannot become a tool in the hands of the party exercising the power of the state
at a particular time.
- It prevents autocratic exercise of the powers by the government.
- A rigid constitution is ideal for a federation.
- Sometimes a rigid constitution is that it fails to keep pace with fast changing
social environment.
- Also because of its inability to change easily, at times, it hinders the process of
social development. So it can be a source of hindrance during emergencies.
- Even it has inability to easily change can lead to revolts against the government.
So a rigid constitution can be a source of conservativeness. It can grow becomes
old very soon because it cannot Keep pace with times.
➢ Evolved Constitution
- An evolved constitution is one which is not made at any time by any assembly of
persons or an institution. It is the result of slow and gradual process of evolution.
- Its rules and principles draw binding force from the fact of their being recognised
as ancient, historical, time-tested and respected customs and conventions.
- Some of these conventions get recognised by law and hence become enforceable
while others are followed because these are supported by public opinion, their
practical utility and moral commitment in their favour.
- Evolved Constitutions is the product of historical evolution and of political needs
and practical wisdom of the people. The Constitution of Great Britain presents a
key example of an evolved constitution.
➢ Enacted Constitution
- An Enacted Constitution is a man-made constitution. It is made, enacted and
adopted by an assembly or council called a Constituent Assembly or
Constitutional Council.
- It is duly passed after a thorough discussion over its objectives, principles and
provisions.
- It is written in the form of a book or as a series of documents and in a systematic
and formal manner.
- The Constitutions of India the USA, Japan, China and most of other states are
enacted constitutions.

Legislature

➢ The term ‘legislature’ is a generic term meaning a body which legislates. The term
‘Legg means law and “lature’ the place and etymologically Legislature means a place

for law-making.

➢ The legislature is that organ of the government which passes the laws of the

government. It is the agency which has the responsibility to formulate the will of the

state and vest it with legal authority and force. In simple words, the legislature is that

organ of the government which formulates laws.

➢ Legislature enjoys a very special and important in every democratic state. It is the

assembly of the elected representatives of the people and represents national public

opinion and power of the people.

Functions of a Legislature

➢ Legislative or Law-making Functions

- The first and foremost function of a legislature is to legislate i.e. to make laws. In

ancient times, laws used to be either derived from customs, traditions and religious

scriptures, or were issued by the kings as their commands.


- However, in the contemporary era of democracy, legislature is the chief source of

law. It is the legislature which formulates the will of the state into laws and gives it a

legal character.

- Legislature transforms the demands of the people into authoritative laws/statutes.

➢ Deliberative Functions

- To deliberate upon matters of national importance, public issues, problems and needs is

an important function of a modern legislature. Through this function, the legislature

reflects the public opinion over various issues.

➢ Custodian of National Finances

- A near universal rule is that “the legislature of the state is the custodian of national

purse.” It holds the purse of the nation and controls the finances. No money can be

raised or spent by the executive without the approval of the legislature.

- Each year the executive has to prepare and get passed from the legislature the

budget for the coming financial year.

- In the budget, the executive has to place the account of the actual income and

expenditure of the previous year and estimated income and expenditure for the

New Year.

- Not only the legislature passes the budget but also it alone can approve the

imposition, or repeal or collection of any tax whatsoever.


- Further, the legislature maintains a control over all financial transactions and

expenditures incurred by the executive.


➢ Control over the Executive

- A modern legislature has the power to exercise control over the executive. In a

parliamentary system of government, like the one which is at work in India, for all

its actions, decisions, and policies, the executive is collectively responsible before

the legislature.
- It is accountable before the legislature. The legislature has the power to remove

the executive by passing a vote of no-confidence or by rejecting a policy or budget

or law of the executive.

- The Prime Minister and all other ministers are essentially the members of the

legislature. They are bound by the rules and procedures of the Parliament.

- In a Presidential form of government, like the one which is at work in the USA,

the legislature exercises some checks over the executive. It can appoint

investigation committees to probe the functioning of government departments.

- By the use of its power to legislate and pass the budget, the legislature exercises a

fair amount of control over the executive. Thus, whether a political system has a

parliamentary system or a presidential system, the legislature exercises a control

over the executive.

➢ Constituent Functions

- In almost every state, it is the legislature which has the power to amend the

constitution. For this purpose legislature has to pass special laws, called amendments,

in accordance with the procedure laid down in the Constitution.

- In some states the requirement is that the legislature must pass the amendment with

2/3rd or 3/4th or an absolute majority of votes.

➢ Electoral Functions

- A legislature usually performs some electoral functions. The two houses of the

Indian Parliament elect the Vice-President.


- All elected MPs and MLAs form the Electoral College which elects the President of

India. In Switzerland, the Federal Legislature elects the members of the Federal

Council (Executive) and the Federal Tribunal (Judiciary).

➢ Judicial Functions

- It is customary to give some judicial power to the legislature. Usually, the legislature

is assigned to act as a court of impeachment i.e. as an investigating court for trying

high public officials on charges of treason, misdemeanour and high crimes and

remove them from office.


In India, the Union Parliament can impeach the President. It has also the power to

pass a resolution for the removal of Judges of the Supreme Court and of the High

Court’s on the ground of misbehaviour or incapacity.

➢ Ventilation of Grievances

- A legislature acts as the highest forum for ventilation of public grievances against

the executive. Besides representing every interest and shade of opinion, the legislature

acts as the national forum for expressing public opinion, public grievances and public

aspirations. Parliamentary debates and discussions throw a flood light over various

issues of public importance.

➢ Miscellaneous Functions

- Some legislatures are assigned specific executive tasks. For example, the US

Senate (Upper House of US Legislature) has the power to confirm or reject the

major appointments made by the US President. Likewise, it enjoys the power to

ratify or reject treaties made by the US President.

- In India, the Rajya Sabha has been given the power to establish or eliminate any

All India Service. Legislatures also perform the function of approving or rejecting

or amending all the policies and plans made by the executive. In the US

Constitution, the Congress (Legislature) enjoys the power to declare war.

- Thus the legislative organs of the government play a very important and active

role in the exercise of the sovereign power of the state. In fact legislature is the

legal sovereign in the State.


- It has the power to transform any decision of the state into a law. Legislature is the

chief source of law. It is the mirror of national public opinion and the symbol of

the power of the people.

Types of Legislature

➢ Bicameral

- Bicameralism means a legislature with two houses/chambers while uni-

cameralism means a legislature with a single house/chamber.


- A large number of modern legislatures, particularly of big states, are bicameral i.e.

legislatures with two houses (Bi = Two, Cameral = House).

- India, USA, UK, France, Russia, Switzerland, Australia and a large number of

other states have bicameral legislature. 22 states of India have bicameral

legislatures

- Where the legislature is bicameral, “the first house is usually called the lower

house, and the second house is called the upper house.


- The second chamber of a legislature is essential for preventing the first house

from becoming arbitrary and despotic. A single chamber with all the legislative

power can become corrupt and despotic. The second chamber is needed for

keeping it away from being arbitrary and despotic.

- Second chamber prevents the passing of hasty and ill-considered legislation by a

single chamber. With a view to satisfy mass passions and demands, the single

chamber can commit the mistake of passing ill-considered measures in a haste,

which can subsequently be a source of big harm to the national interests.

- The second chamber prevents or at least considerably limits such chances. It

exercises a checking and modifying influence on the bill passed by the first house.

- The legislative work in the modern welfare state has become highly complex and

technical. It demands a deep and careful examination of all aspects of the


measures which are to be enacted into laws.

- The second chamber performs the role of a reviser. “When deliberations have to

be done, two heads are better than one.”

- The emergence of welfare state has produced a manifold increase in the scope of

law-making. A modern legislature has to pass a large number of laws.


- Under the circumstances, a legislature with a single chamber can fail to effectively

pass all the legislative work so the second house is needed for sharing the

legislative work.

- The two houses can together correctly act as the barometer of public opinion. A

single house can grow out of tune and fail to keep in harmony with public opinion.

The second house chosen at a different time can help the legislature in

overcoming the above defect.

- The second chamber provides a convenient means for giving representation to


different classes and interests which need representation. The lower chamber can

consist of the elected representatives of the people as a whole, and the upper

house can give representation to the minorities and special interests and groups

like the Labour, women, scientists, artists, teachers, intellectuals, writers,

chambers of commerce.

- The passing of laws by two houses leads to some delay. However, this delay is

very useful. It helps the crystallisation of public opinion on all bills before they

become laws.

- The existence of second chamber acts as a source of delay between the


introduction and final adoption of a law and thus permits time for reflection and

deliberation.

- A bi-cameral legislature is considered essential for a federal system. In such a

system, the lower house gives representation to the people of the state as a whole

and the upper house gives representation to the units of the federation.
- A second chamber makes it possible for the state to use the political and

administrative ability of such people, who for certain reasons are not in a position,

or are not quite willing to enter the lower house through elections. The second

chamber can, as such, help the induction of experience and ability into the

legislature.

- The second chamber can be given a longer and continuous term for securing

stability. The lower house, being the representative of the people has to be given a
shorter tenure. As against this, the second chamber can be given a longer tenure

and a permanent or quasi-permanent character for ensuring some stability.

- It has been due to such a consideration that a member of Indian Rajya Sabha has

six year tenure and this house has a quasi- permanent character—it is never

dissolved as a whole and only l/3rd of its members retires after every two years.

➢ Unicameral

- The unicameral legislatures are working in China, New Zealand, Zimbabwe,

Turkey, Portugal and several other states.

- The state legislatures of all the Canadian and Swiss cantons (provisions) are

unicameral. In India, 6 states and 2 Union Territories have unicameral legislatures.

- Several states, mostly the small states and provinces of a federal system, have
unicameral legislatures, i.e. legislatures with single houses.

- Public opinion is one and can be represented by a single chamber. Sovereignty is

one. People are sovereign. Their will is one and cannot be divided. They are best

represented by a single chamber as two chambers confuse public opinion,

particularly when one chamber disagrees with the second chamber.

-
- The second chamber is either mischievous or superfluous. If the second chamber

dissents from the first, it is mischievous; if it agrees with it, it is superfluous. This

shows the need for a single house.

- In the prevailing system of law-making in which a bill has to go through several

stages before getting a place in the statutes book, there is no need for a second

house. The system of Law-making as it operates today eliminates the chances of

ill-considered and hasty legislation by a single chamber. Hence, only a single

chamber is needed.

- The second chamber is always a source of unwanted delay. A bill has to pass

through several stages in the first house before getting passed. When it goes to the

second house, it has to again pass through a similar process. It causes unwanted

and harmful delay. In this process, the legislation gets unnecessarily delayed so

here we require more of Single house.

- The second chamber is never in a position to check the so called despotism of the

first chamber. It merely works as a delaying house or a slowing-down chamber.

The Indian Rajya Sabha can only delay a money bill for 14 days only and an

ordinary bill for a little longer duration.

- It is alleged by the critics of the second chamber that it is generally citadels of

reaction and conservatism. It acts as a brake on the wheels of democracy. The

practice of giving representation to minorities and special interests makes the

second chambers reactionary and conservative houses. The second chamber is

usually dominated by the rich businessmen, capitalists, landlords and the ‘elitist’

sections of society. Thus rising need for single house.

-
- The supporters of unicameral legislatures advocate that the special interests of

minorities and weaker sections of society can be given representation in the lower

house without any loss. This can be done without disturbing the nature and

character of the membership of the house as determined by the people through

elections.

- The existence of two chambers means more burdens on the finances of the state

without much use, because the second chamber almost always fails to perform its

due role in the legislative process. The second chamber entails heavy expenditure
and renders no useful purpose so there is no need for a second chamber.

Executive

➢ The term ‘Executive’ has been defined both in its broad and narrow forms. In its
broad form, it is taken to mean all the functionaries, political power-holders (Political
Executive) and permanent civil servants who undertake the execution of laws and
policies and run the administration of state.
➢ In its narrow form, it is taken to mean only the executive heads (ministers i.e. the
political Executive), who head the government departments, formulate the policies
and supervise the implementation of the laws and policies of the government.
➢ In the narrow form, the civil service and its administrative functions are not included
in the realm of the Executive.
➢ “In a broad and collective sense, the executive organ embraces the aggregate or
totality of all the functionaries and agencies which are concerned with the execution
of the will of the state as that will has been formulated and expressed in terms of law.”
➢ “In its broadest sense, the executive department consists of all government officials
except those acting in legislative or judicial capacity. It includes all the agencies of
government that are concerned with the execution of states will as expressed in terms
of law.”
➢ The permanent executive i.e. bureaucracy/civil service runs the day-to- day
administration and works in government departments. It works under the supervision
and control of the political executive.
➢ Two Parts of Executive are Political Executive & Permanent Executive
- The Political Executive (Ministers)
• It consists of the executive head of the state and other heads of the executive
departments is ministers.
• Ministers are political leaders. They are mostly elected representative of the
people and responsible for all their decisions and policies before the public.
• Political Executive work for a fixed tenure of about 5 years.
• It acts as a temporary executive in the sense that it changes after every election.
• After completing one tenure, ministers have to again contest elections. They can
again become ministers only when the party to which they belong returns to
power as the majority party.
• The ministers are amateurs, non-experts and non-professionals. Their function is
to formulate policies and get these policies and laws approved from the
Legislature.
• Thereafter these policies and laws of the State are implemented by the civil
servants, who work under the control of Political Executive.
• The political executive heads the government. Each minister is head of a
department or some of the government.
- The Non-political Permanent Executive (Civil Servants)
• It consists of the civil servants (Bureaucracy) from the lowest to the
highest levels. It carries out the day to day administration by working in
the government departments. The civil servants are politically neutral.
They do not owe allegiance to any political party.
• Their job is to carry out the laws and policies of the government without
any political consideration. They are specially educated and trained
persons. They are experts and professionals. They give expert advice and
opinion as well as collect, classify and present data to the political
executive on the basis of which the latter takes all decisions.
• Once appointed, the civil servants remain in office till the attainment of the
retirement age, usually up to the age of 55 or 60 years. They get regular
and fixed salaries and are hierarchically organised into higher and lower
relationships.

Functions of the Executive

➢ Enforcement of Laws
- The primary function of executive is to enforce laws and to maintain law and order
in the state. Whenever a breach of law takes place, it is the responsibility of the
executive to plug the breach and bring the offenders to book.
- Each government department is responsible for the implementation of the laws and
policies concerning its work. For maintaining law and order in the state, the executive
organises and maintains the police force.
➢ Appointment-making Functions
- All major appointments are made by the chief executive. As for example, the
President of India appoints the Chief Justice and other Judges of the Supreme
Court and High Courts. Ambassadors, Advocate General of India, Members of
Union Public Service Commission, Governors of States etc.
- Likewise, the President of the United States makes a very large number of key
appointments. All the secretaries who head various government departments,
Judges of the Supreme Court and other Federal Courts, the Federal officials in the
States etc., are appointed by the US President.
- However, all such appointments require the approval of the US Senate (Upper
House US Congress i.e. Parliament).
- The members of the civil service are also appointed by the Chief executive. This
is, usually, done on the recommendation of a service recruitment commission. In
India, the Union Public Service Commission annually holds competitive
examinations for All India Services, Central Services and Allied Services.
- It recruits on merit, candidates for appointment to these cadres. The appointments
are done by the Chief executive in accordance with the recommendations of the
UPSC. Similar practice prevails in almost all the states. As such appointment-
making is a function of the executive.
➢ Treaty-making Functions
- It is the responsibility of the executive to decide as to which treaties are to be
signed with which other countries. The executive negotiates the treaties in
accordance with the procedure defined by international law and also in accordance
with the provisions the constitution of the state.
- Each treaty is signed by a member of the executive. Most of the treaties also
require ratification by the legislature of the State. It is again the responsibility of
the executive to secure legislative approval for the treaties signed by it.
➢ Defence, War and Peace Functions
- One of the key functions of the state is to defend and preserve the unity and
integrity of the country and protect it in the event of an external aggression or war.
It is the responsibility of the executive to undertake this work.
- To organise military for the defence of the state, to prepare for and fight the war,
if it becomes necessary, and to negotiate and sign peace settlement after every
war, are the functions performed by the executive.
- The executive is the final judge of the nature of the threat to the security of the
country. It has the prime responsibility to take all such steps as are needed in the
interest of the security and integrity of the state. The chief executive of the state is
also the supreme commander of the armed forces of the state.
➢ Foreign Policy-making and the Conduct of Foreign Relations
- In this age of ever-increasing global interdependence, it has become one of the
most important functions of a government to formulate the foreign policy of the
state and to conduct foreign relations. This function is also performed by the
executive.
- The executive formulates the goals of national interest and fixes the priorities. It
first formulates the foreign policy of the nation and then implements it for
securing the defined goals of national interest. The executive appoints the
ambassadors of the state to other states.
➢ Policy-making
- Modern welfare state has to carry out a large number of functions for securing the
socio-economic-cultural development of its people. It has to formulate policies,
prepare short-term and long-term plans and implement these. All actions of the
state are guided by definite policies and plans.
- It is the executive which undertakes the task of policy-making and developmental
planning. These are the two most important functions of the executive, because by
these the state carries out its objective of promoting the welfare of its people.
➢ Functions relating to Law-making
- Law-making is primarily the function of the legislature. However, the executive
also plays a role in law-making. In this sphere too the role of the executive has
been increasing by leaps and bounds.
- In a parliamentary system, the ministers are also members of the legislature and
they play a leading role in law-making.
- Most of the bills for legislation are introduced and piloted by them in the
legislature. Most of the time of the legislature is spent in passing the governmental
bills. The bills passed by the legislature become laws only after these are signed
by the Head of the State.
➢ Law-making under the system of Delegated Legislation
- The system of delegated legislation has considerably increased the law-making role
of the executive. Under this system, the legislature delegates some of its law-making
powers to the executive.
- The executive then makes rules on the basis of these powers. The amount of
delegated legislation made by the executive far out-weighs the laws passed by the
legislature.
➢ Financial Functions
- It is the legislature which is the custodian of all finances. It has the power to
impose, or reduce or eliminate a tax. However, in actual practice, the executive
exercises a number of financial functions.
- It has the responsibility to prepare the budget. It proposes the levy of new taxes or
changes in tax structure and administration. It collects and spends the money as
sanctioned by the legislature.

-
- The executive decides the ways and means through which the money is to be
collected and spent. It formulates all economic policies and plans.
- It takes suitable measures for regulating the production and distribution of goods,
money supply, prices and exports and imports. It contracts foreign loans,
negotiates foreign aid and maintains the financial credibility of the state.
➢ Some Semi-Judicial Functions
- The appointment of judges by the executive is regarded as the best method for
ensuring the independence of judiciary. In almost all democratic systems, the chief
executive has the power to appoint judges.
- Further, he has the right to grant pardon, reprieve and amnesty to criminals. Under
the system of administrative adjudication, the executive agencies have the power to
hear and decide cases involving particular fields of administrative activity.
➢ Grant of Titles and Honours
- Another important function of the executive is to grant titles and honours to the
people in recognition of their meritorious services to the nation. Such persons who
do commendable work in their respective spheres of activity—Art, Science,
Literature etc. are granted titles by the executive.
- It also grants titles to such defence personnel who show exemplary courage and
devotion to duty during war or peace. Even ordinary citizens are granted honours
in recognition of their meritorious work for the society.
- All decisions in this respect are taken by the executive. These are the major
functions performed by the Executive. Executive has indeed emerged as the most
powerful organ of the government.

Types of Executive

➢ Nominal/Titular and Real Executives


- The difference between the nominal/titular and real executives is made only in a
parliamentary system of government. In it, the head of state, the President or the
Monarch, is the nominal executive and the Council of Ministers headed by the
Prime Minister is the real executive. All the powers are legally the powers of the
nominal executive but in practice these are exercised by the real executive.
- The nominal executive is not responsible for its actions as these are performed in
its name by the real executive. The real executive is responsible for all the actions
of the nominal executive. The nominal executive is the ceremonial and dignified
part of the executive, whereas the real executive is its powerful part

.
➢ Hereditary and Elected Executives

- When the executive assumes office by the law of hereditary succession, it is called
the hereditary executive. When the executive is directly or indirectly elected by the
people for a fixed period or even for life, it is called the elected executive.

- In Britain, Japan and Malaysia there are hereditary chief executives. In India, USA,
Germany and many other states there are elected chief executives.

➢ Single and Plural Executives


- When all the executive powers are in the hands of a single functionary/leader, it is
called a single executive. In India, Britain, USA, Australia, France and many other
states there are single executives.
- In India, all the executive powers are with the President of India. Likewise under
the US Constitution, the executive powers are with the President of the United
States of America.
- When the executive powers are vested with a group of persons or in a
committee/council/commission and these are collectively exercised by all the
members of this commission/council, the executive is called the Plural Executive.
- As for example, in Switzerland all the executive powers have been given to the
Federal Council which consists of seven members. All the members collectively
exercise all the executive powers.
➢ Parliamentary and Presidential Executives
- The distinction between the parliamentary and presidential executives is made on
the basis of relationship between the legislature and executive.
- In Parliamentary Executive there is:
• A close relationship between legislature and executive and members of the
executive are also members of the legislature
• The members of political executive is individually and collectively
responsible before the legislature
• The tenure of the political executive is not fixed as it can be at any time
removed by the legislature
• The legislative can be dissolved by the executive.

- In a Presidential Executive, there is:

• Separation of powers between the executive and the legislature


• The membership of the two organs is incompatible i.e. member of one
cannot be a member of the other
• The executive is not responsible to the legislature
• Neither can dissolve nor remove the other.
- The parliamentary executives are functioning in India, U.K., Canada, New
Zealand, Australia and several other states. In the United States of America, the
executive is presidential. In France there is a mixture of these two forms of
Executive.
Judiciary

➢ The Judiciary is the third organ of the government. It has the responsibility to apply
the laws to specific cases and settle all disputes. The real ‘meaning of law’ is what the
judges decide during the course of giving their judgements in various cases.
➢ From the citizen’s point of view, Judiciary is the most important organ of the
government because it acts as their protector against the possible excesses of
legislative and executive organs. Role of Judiciary as the guardian-protector of the
constitution and the fundamental rights of the people makes it more respectable than
other two organs.

Functions of Judiciary

➢ To Give Justice to the people:


- The first and foremost function of the judiciary is to give justice to the people,
whenever they may approach it. It awards punishment to those who after trial are
found guilty of violating the laws of the state or the rights of the people.
- The aggrieved citizens can go to the courts for seeking redress and compensation.
They can do so either when they fear any harm to their rights or after they have
suffered any loss.
- The judiciary fixes the quantity and quality of punishment to be given to the
criminals. It decides all cases involving grant of compensations to the citizens.
➢ Interpretation and Application of Laws
- One of the major functions of the judiciary is to interpret and apply laws to specific
cases. In the course of deciding the disputes that come before it, the judges interpret
and apply laws.
- Every law needs a proper interpretation for getting applied to every specific case.
This function is performed by the judges. The law means what the judges interpret it
to mean.
➢ Role in Law-making:
- The judiciary also plays a role in law-making. The decisions given by the courts
really determine the meaning, nature and scope of the laws passed by the
legislature. The interpretation of laws by the judiciary amounts to law-making as
it is these interpretations which really define the laws.
- Moreover, ‘the judgements delivered by the higher courts, which are the Courts of
Records, are binding upon lower courts. The latter can decide the cases before
them on the basis of the decisions made by the higher courts. Judicial decisions
constitute a source of law.
➢ Equity Legislation

- Where a law is silent or ambiguous, or appears to be inconsistent with some other


law of the land, the judges depend upon their sense of justice, fairness, impartiality,
honesty and wisdom for deciding the cases. Such decisions always involve law-
making. It is usually termed as equity legislation.
➢ Protection of Rights

- The judiciary has the supreme responsibility to safeguard the rights of the people. A
citizen has the right to seek the protection of the judiciary in case his rights are
violated or threatened to be violated by the government or by private organisations or
fellow citizens. In all such cases, it becomes the responsibility of the judiciary to
protect his rights of the people.

➢ Guardian of the Constitution


- The judiciary acts as the guardian of the Constitution. The Constitution is the
supreme law of the land and it is the responsibility of the judiciary to interpret and
protect it.
- For this purpose the judiciary can conduct judicial review over any law for
determining as to whether or not it is in accordance with the letter and spirit of the
constitution.
- In case any law is found ultra virus (unconstitutional), it is rejected by the judiciary
and it becomes invalid for future. This power of the court is called the power of
judicial review.
➢ Power to get its Decisions and Judgements enforced
- The judiciary has the power not only to deliver judgements and decide disputes,
but also to get these enforced. It can direct the executive to carry out its decisions.
It can summon any person and directly know the truth from him.
- In case any person is held:
• Guilty of not following any decision of the court, or
• Of acting against the direction of the court, or
• Misleading the court, or
• Of not appearing before the court in a case being heard by it, the Court has
the power to punish the person for the contempt of court.
➢ Special Role in a Federation:

- In a federal system, the judiciary has to perform an additionally important role as the
guardian of the constitution and the arbiter of disputes between the centre and states.

- It acts as an independent and impartial umpire between the central government and
state governments as well as among the states. All legal centre-state disputes are
settled by the judiciary.

➢ Running of the Judicial Administration


- The judiciary is not a department of the government. It is independent of both the
legislature and the executive. It is a separate and independent organ with its own
organisation and officials. It has the power to decide the nature of judicial
organisation in the state. It frames and enforces its own rules.
- These govern the recruitment and working of the magistrates and other persons
working in the courts. It makes and enforces rules for the orderly and efficient
conduct of judicial administration.
➢ Advisory Functions

- Very often the courts are given the responsibility to give advisory opinions to the
rulers on any legal matter. For example, the President of India the power to refer to
the Supreme Court any question of law or fact which is of public importance.

➢ To Conduct Judicial Inquiries

- Judges are very often called upon to head Enquiry Commissions constituted to
enquire into some serious incidents resulting from the alleged errors or omissions on
the part of government or some public servants.

- Commissions of enquiry headed by a single judge are also sometimes constituted for
investigating important and complicated issues and problems.

➢ Miscellaneous Functions
- Some such functions are the appointment of certain local officials of the court,
choosing of clerical and other employees. Cases relating to grant of licenses,
patents, and copy rights, the appointment of guardians and trustees, the admission
of wills, to appoint trustees to look after the property of the minors, to settle the
issues of successions of property and rights, issue of administrating the estates of
deceased persons, the appointment of receivers, naturalization of aliens, marriage
and divorce cases, election petitions and the like.
- Through all these functions, the Judiciary plays an important role in each state. It
also plays a role in the evolution of Constitution through the exercise of its right to
interpret and safeguard it against all legislative and executive excesses.

Independent Judiciary

➢ In the life of the citizens of a state, Judiciary is a source of confidence and


fearlessness. The common man depends upon judiciary for getting justice. Without a
security of rights and freedom guaranteed by the judiciary, they cannot really hope to
carry out their jobs and enjoy their living.
➢ They are more dependent upon judiciary than the legislature and the executive.
Without judicial protection, their lives can become miserable. From citizens point of
view Judiciary is the most important organ of the government.
➢ Judiciary enjoys a big importance in the eyes of the people because it acts as:

- The dispenser of Justice

- Protector of the rights of the people

- Guardian protector of the Constitution of the State

- Arbiter of centre-state disputes


- Safeguard against Legislative and executive excesses

- Check against arbitrary exercise of powers by the power-holders

- Guardian of Rule of Law and Justice.

➢ An independent judiciary is always considered to be the most essential part of every


democratic government worth its name. A government without judiciary is almost
inconceivable. A government without independent judiciary is always held to be an
authoritarian government.
➢ The chief quality which helps the judiciary to faithfully administer justice and to
perform its functions efficiently is judicial independence. It is only when the judiciary
works independently without any interference of the other two organs of the
government that it can carry out its high responsibilities.
➢ Indian Constitution has given high importance to the Independence of Judiciary
System. Every democratic country puts a great store on the independence of the
judiciary as a guarantee of individual freedom.
➢ Judicial Independence or Independence of Judiciary refers to an environment where
judges are free to make decisions or pass judgment without any pressure from the
government or other powerful entities.
➢ Independence of Judiciary means that the judiciary as an organ of the government
should be free from influence and control of the other two organs i.e., the executive
and the legislature of government.
➢ Judicial independence plays an important role in maintaining the democratic set-up of
any country. An impartial and independent judicial system alone can protect the rights
of the citizens against the arbitrary powers of the executive or legislature.
➢ Freedom from the influence and control of the executive is of crucial importance. It is
important for individual freedom that the judges give their verdict without fear or
favour. It refers to an environment where the judge can pass impartial judgment.
➢ Every democratic country adopts various means to ensure freedom of the judiciary
and thereby to ensure individual freedom. The U.S.A. has adopted system of
separation of powers to ensure independence of the judiciary.
➢ But in constitutional systems based on the concept of Parliamentary sovereignty, the
adoption of separation of powers is ruled out. This is the case in England. This is also
partly the case in India, for in India, the doctrines of Parliamentary and constitutional
sovereignty are blended together.

Independent Judiciary in India

➢ The constitution of India adopts diverse devices to ensure the independence of the
judiciary in keeping with both the doctrines of constitutional and Parliamentary
sovereignty. Elaborated provision is in place for ensuring the independent position of
the Judges of the Supreme Court and the High Courts.
➢ The judges of the Supreme Court and the High Courts have to take an oath before
entering office that they will faithfully perform their duties without fear, favour,
affection, ill-will, and defend the constitution of India and the laws. Recognition of
the doctrine of constitutional sovereignty is implicit in this oath.
➢ The process of appointment of judges also ensures the independence of judiciary in
India. The judges of the Supreme Court and the High Courts are appointed by the
President. The constitution of India has made it obligatory on the President to make
the appointments in consultation with the highest judicial authorities. He of course
takes advice of the Cabinet. The constitution also prescribes necessary qualifications
for such appointments. The constitution tries to make the appointments unbiased by
political considerations.
➢ The Constitution provides for the security of tenure of Judges. The judges of the
Supreme Court and the High Court’s serve “during good behaviour” and not during
the pleasure of the President, as is the case with other high Government officials.
They cannot be arbitrarily removed by the President. They may be removed from
office only through impeachment. A Judge can be removed on the ground of proved
misbehaviour or incapacity on a report by both Houses of Parliament supported by a
special majority.
➢ Their salaries and allowances are charged upon the Consolidated Fund of India.
Further, the salaries and allowances of Judges of Supreme court and High courts
cannot be reduced during their tenure, except during a financial emergency under
Article 360 of the constitution.
➢ The activities of the Judges cannot be discussed by the executive or the legislature,
except in case of removal of them in India
➢ The retirement age is 65 years for Supreme Court judges and 62 years for High court
judges. Such long tenure enable the judges to function impartially and independently
➢ A retired Supreme Court judge cannot practice engage in legal practice in any court in
India. However, a retired High court judge can practice law in a state other than the
state in which he served as a High Court judge. These restrictions ensure that a retired
judge is not able to influence the decision of the courts
➢ The hierarchy of judicial system in India plays an important role in maintaining the
independence of judiciary. Supreme Court is the highest court for justice. Then, there
are High Court and District Courts in every states. Then, there are People’s courts
known as Lok Adalats. If no decision is reached at these Lok Adalats, then the cases
move to courts.

Judicial Review in India

➢ The power of judiciary to review and determine the validity of a law or an order may
be described as the powers of Judicial Review’. It means that the constitution is the
supreme law of the land and any law inconsistent therewith is void through judicial
review.
➢ It is the power exerted by the courts of a country to examine the actions of the
legislatures, executive and administrative arms of government and to ensure that such
actions conform to the provisions of the nation’s Constitution. Judicial review has two
important functions, like, of legitimizing government action and the protection of
constitution against any undue encroachment by the government.
➢ The Supreme Court has been vested with the power of judicial review. It means that
the Supreme Court may review its own Judgement order. Judicial review can be
defined as the competence of a court of law to declare the constitutionality or
otherwise of a legislative enactment.
➢ Being the guardian of the Fundamental Rights and arbiter of the constitutional
conflicts between the Union and the States with respect to the division of powers
between them, the Supreme Court enjoys the competence to exercise the power of
reviewing legislative enactments both of Parliament and the State’s legislatures.
➢ The power of the court to declare legislative enactments invalid is expressively pro-
vided by the Constitution under Article 13, which declares that every law in force, or
every future law inconsistent with or in derogation of the Fundamental Rights, shall
be void.
➢ Other Articles of the Constitution (131-136) have also expressively vested in the
Supreme Court the power of reviewing legislative enactments of the Union and the
States. Articles 131-136 entrusts the court with the power to adjudicate disputes
between individuals, between individuals and the state, between the states and the
union; but the court may be required to interpret the provisions of the constitution and
the interpretation given by the Supreme Court becomes the law honoured by all courts
of the land.
➢ The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the
Constitution (1976), in several ways. But some of these changes have been repealed
by the 43rd Amendment Act, 1977. But there are several other provisions which were
introduced by the 42nd Amendment Act 1976 not repealed so far.
➢ The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are limited in a
manner that the power is divided between centre and states.
➢ Moreover the Supreme Court enjoys a position which entrusts it with the power of
reviewing the legislative enactments both of Parliament and the State Legislatures.
This grants the court a powerful instrument of judicial review under the constitution.
➢ Article 372 (1) establishes the judicial review of the pre-constitution legislation.
➢ Article 13 declares that any law which contravenes any of the provisions of the part of
Fundamental Rights shall be void.
➢ Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental
rights to the Supreme and High Courts.
➢ Article 251 and 254 states that in case of inconsistency between union and state laws,
the state law shall be void.
➢ Article 246 (3) ensures the state legislature’s exclusive powers on matters pertaining
to the State List.
➢ Article 245 states that the powers of both Parliament and State legislatures are subject
to the provisions of the constitution.
➢ The legitimacy of any legislation can be challenged in the court of law on the grounds
that the legislature is not competent enough to pass a law on that particular subject
matter; the law is repugnant to the provisions of the constitutions; or the law infringes
one of the fundamental rights.
➢ There is no express provision in our constitution empowering the courts to invalidate
laws, but the constitution has imposed definite limitations upon each of the organs,
the transgression of which would make the law void. The court is entrusted with the
task of deciding whether any of the constitutional limitations has been transgressed or
not.
➢ The strategy of judicial review can be divided broadly into public law review and
private law review. Under the Constitution, legislative and administrative actions can
be reviewed by courts under Articles 32, 136, 226 and 227. Such review is called
public law review. Article 32 guarantees the right to move the Supreme Court if any
fundamental right can be reviewed under this provision.
➢ It has the power to take action of contempt of court. Those who violate or disobey the
decisions of the courts are proceeded against under this power. They can be punished
and sent to jail. Obviously the contempt power is the only weapon in the hand of
judiciary to see that their decisions are executed.
➢ Locus standi is the first limitation on judicial review. This means that only a person
aggrieved by an administrative action or by an unjust provision of law shall have the
right to move the court for redressal. Under this traditional rule a third party who is
not affected by the action cannot move the court.
➢ Another limitation is that before a person moves the High Courts and the Supreme
Court invoking their extraordinary jurisdiction, he should have exhausted all
alternative remedies. For example, these may be a hierarchy of authorities provided in
legislation to look-into the grievances of the affected party. The aggrieved person
should first approach these authorities for a remedy before invoking extraordinary
jurisdiction of the courts.
➢ However, the alternative remedies should be equally efficacious and effective as the
remedies available from the courts are. If they are not, the jurisdiction can be invoked.
In cases of manifest injustice and the violation of procedural fairness, alternative
remedy is not a bar.
➢ A rule has been evolved to avoid repeated adjudication on the same matter between
the same parties. If the case is finally disposed of on merits the same issue cannot be
re-agitated by any of the parties filing another case. This limitation is called res
judicata.
Writs

Article 226 can be, and is more often, used for reviewing the action of administration. One
can say that there is an increase of litigation in this respect. The High Court can issue
directions, orders or writs in the nature of habeas corpus mandamus, prohibition, quo-
warranto, and certiorari for the enforcement of fundamental rights or for any other purpose.

➢ Habeas corpus is a writ issued by the court to bring before the court a person from
illegal custody. The court will examine the legality of detention and release the person
if detention is found illegal.
➢ Mandamus is issued to a public authority to do an act which under law, it is obliged to
do or to forbear from doing.
➢ Prohibition is a write to prevent a court or tribune! From doing something in excess of
its authority. High Court has power to issue an order of prohibition to the executive
authority prohibiting it from acting without jurisdiction.
➢ Certiorari is a write issued to a judicial or quasi-judicial authority to correct its order.
This writ is issued on specified grounds like violation of natural justice; excess, abuse
or lack of jurisdiction; fraud; and error of law apparent on the face of the record.
➢ Quo-warranto is a writ issued to a person who authorised occupies a public office to
step down from that office. High courts and the Supreme Court have the power to
issue not only these writs but also appropriate directions and orders.

Theory of Separation of Powers

➢ The French scholar Montesquieu pointed out as early as in the sixteenth century that
placing power in the hands of only one organ or group in a government entails
tyranny.
➢ Thus to check this problem he felt that the solution would be to vest power in three
distinct organs of the government, namely, the legislature, the executive and the
judiciary. This would allow each organ to be independent of the other such that no
encroachment or overlapping of powers may exist and a harmony may be reached
which would aid the smooth running of the government.
➢ These words state the Doctrine of Separation of Powers as given by Montesquieu,
“There would be an end of everything, were the same man or same body, whether of
the nobles or of the people, to exercise those three powers, that of enacting laws, that
of executing laws, that of executing public resolutions, and of trying the causes of
individuals."
➢ This doctrine stands testimony to Montesquieu belief that powers of the executive and
the legislature if vested in the same hands would result in a situation of arbitrariness
and despotism, for the executive will be enabled with the power of having any laws it
wishes, to be passed, alternatively if the judiciary and legislature or executive were
not separated then the common man would have no defence against the state.
➢ These Montesquieu saw as a serious threat to the liberty of the people and in order to
preserve them extolled the theory of separation of powers.
➢ Therefore, the separation of powers doctrine, in theory, aims at separating power and
disseminating it such that tyranny by the government may be prevented entirely as
equal power vests in three separate organs which act as a check and balance for each
other.
➢ Thus assigning a different function to each organ and creating exclusive functions for
them counters the concentration of powers and makes this doctrine a success. In fact
this doctrine has been adopted around the world in many constitutions and in ours to
an extent as well. It is a remarkable way of protecting human liberty and creating a
system of governance which is responsible and fair.

Theory of Separation of Powers in India

➢ It is often understood that in our country the debate about the separation of powers
dates as long back as the Constitution itself. It was extensively debated in the
Constituent Assembly.
➢ It was not given constitutional status in our Constitution finally but it does clearly
seem that the constitution of India has been made keeping the separation of powers
doctrine in mind, but nowhere is this explicitly stated or embraced by the constitution
itself.
➢ Since ours is a parliamentary system of governance, though an effort has been made
by the framers of the constitution to keep the organs of the government separated
from each other, but a lot of overlapping and combination of powers has been given to
each organ.
➢ The legislative and executive wings are closely connected with each other due to this;
the executive is responsible to the legislature for its actions and derives its powers
from the legislature.
➢ The head of the executive is the president, but a closer look shows that he is only a
nominal head and the real power rests with the Prime Minister and his Cabinet of
ministers as in Article 74(1). In certain situations the President has the capacity to
exercise judicial and legislative functions.
➢ For example, while issuing ordinances Art, The judiciary too performs administrative
and legislative functions. The parliament too may perform judicial functions, for
example if a president is to be impeached both houses of Parliament are to take an
active participatory role.
➢ Thus all three organs act as a check and balance to each other and work in
coordination and cooperation to make our parliamentary system of governance work.
India being an extremely large and diverse country needs a system like this where all
organs are responsible to each other as well as coordinated to each other; otherwise
making governance possible becomes a very rigid and difficult task.
➢ It is important to note that the separation of powers is still an important guiding
principle of the constitution. Most noteworthy is our judicial system which is
completely independent from the executive and the legislature.
➢ The High Courts and Supreme Courts have the power of judicial review which
empowers them to declare any law passed by the parliament unconstitutional if it so
decides. As in regard to the judges, they are extremely well protected by the
Constitution, their conduct is not open to discussion in the Parliament and their
appointment can only be made by the President in consultation with the Chief Justice
of India and the judges of the Supreme Court.
➢ It can be understood thus that there is a difference when there are ‘essential’ powers
of one of the organs of the government and the ‘incidental’ powers of the organs.
Hence, though one organ cannot usurp the ‘essential’ powers of an organ, it can
exercise its powers on the ‘incidental’ powers for smooth cooperative running of the
nation.
➢ This distinction clearly demarcates the amount of power one organ can wield over the
activities of another. For example, though the judiciary has the right to judicial
activism to check legislatures which may be unconstitutional, it cannot usurp powers
such as making laws themselves.
➢ But it is clear that the Separation of Powers doctrine has not been implemented in its
strictest format in our country nor been given Constitutional status but a diluted and
modern approach is followed to aid and guide our parliamentary system of
governance.

Criticism to Theory of Separation of Powers

➢ Absolute separation of powers is not possible


➢ Needs use of check and balances system
➢ Can sometimes be confusing for roles
➢ Organs are mutually dependent
➢ Can lead to inefficiency of working of government

Types of Majority as per Indian Constitution

➢ Absolute majority
- It refers to a majority of more than 50% of the total membership of the house. For
example, as the total membership of Lok Sabha is 545, absolute majority in Lok
Sabha means – 50% of 545 plus 1, i.e. 273.
- In the normal business of the Parliament or State Legislature absolute majority is
not generally used. But this majority is used during general election, for the
formation of government at Centre and States.
➢ Effective Majority
- Effective Majority of house means more than 50% of the effective strength of the
house. This implies that out of the total strength, we deduct the vacant seats.
When Indian Constitution mentions “all the then members” that refers to effective
majority.
- For example, in Rajya Sabha, out of the total strength of 245 members if there are
45 vacancies, then the effective strength of the house is 200. Then the effective
majority is 50% of 200 plus 1, i.e. 101.
- Used during removal of Vice-president in Rajya Sabha – Article 67(b) and
removal of Speaker and Deputy Speaker in Lok Sabha and State Legislative
Assembly.
➢ Simple Majority
- This refers to majority of more than 50% of the members present and voting. This
is also known as functional majority or working majority.
- Simple majority is the most frequently used form of majority in Parliamentary
business. When the constitution or the laws do not specify the type of majority
needed, simple majority is considered for voting.
- To understand simple majority, let us consider a situation in Lok Sabha. On a
particular day, out of the total strength of 545, 45 were absent and 100 abstained
from voting on an issue. So only 400 members were present and voting. Then the
simple majority is 50% of 400 plus 1, i.e. 201.
- Ordinary bills need to be passed with simple majority in both Houses of the
Parliament before it is send to Indian President for his assent.
- It is used to pass Ordinary/Money/Financial bills, to pass Non-Confidence
Motion/Adjournment Motion/Censure Motion/Confidence Motion, for the
removal of Vice President in Lok Sabha– A67(b), to declare financial emergency,
to declare state emergency (President’s rule), election of Speaker/Deputy Speaker
of Lok Sabha and State legislatures., Constitution Amendment Bill under Article
368 which needs to be ratified by states
➢ Special Majority
- Special Majority as Per Article 249 requires a majority of 2/3rd members present
and voting. For example if out of the 245 members in Rajya Sabha, if only 150 are
present and voting, then the special majority required as per article 249 would be
101. It is used to pass the Rajya Sabha resolution to empower the parliament to
make laws in state list. (Valid up to 1 year, but can be extended any number of
times).
- Special Majority as per Article 368 requires a majority of 2/3rd members present
and voting supported by more than 50% of the total strength of the house. This
type of majority is used for most of the Constitution amendment bills, to pass a
constitution amendment bill in Rajya Sabha, in addition to getting the support of
123 members; the bill should be favoured by more than 2/3rd of the members
present and voting.
- Essential to pass a constitutional amendment bill which does not affect federalism,
for removal of judges of SC/HC, for approval of national emergency requires
special majority as per Article 368 in both houses and for Resolution by the state
legislature for the creation/abolition of Legislative Council (Article 169).
- Special Majority as per Article 368 + 50 percent state ratification by simple
majority is required when a constitutional amendment bill try to change the
federal structure. Special majority as per article 368 plus state ratification requires
a majority of 2/3rd members present and voting supported by more than 50% of
the state legislatures by a simple majority. A good example would be the bill
which introduced the National Judicial Appointments Commission (NJAC). It
required the support of at-least 15 state legislatures out of the 29 states. Needed to
pass a constitutional amendment bill which affect federalism like – position of
High Court Judges requires a majority of 2/3rd members of the total strength of
the house. In Lok Sabha the special majority as per article 61 is 364 while in
Rajya Sabha, the special majority as per article 61 is 164.

Political Processes

Characteristics of Political System (Almond)

➢ Use or threat of use of legal force


- The first characteristic of political system is that it allows the legal authority to use
force. If David Easton speaks of “authoritative allocation of values”, Dahl of
“Power, “rule” and authority”. All these definitions imply that legal authority can
use force to compel anybody to obey its orders.
-
- It possesses legitimate and heavy sanctions and rightful power to punish.
Consequently, we have to agree with Max Weber that legitimate use of force is a
distinct feature of political system, giving it a special quality and importance, and
its unity as a system.
- When the state or governments extends certain facilities then at the same time it
possesses power to impose taxes upon the people and punish those who violate
those orders.
➢ Interactions
- Almond in his book, “The Policies of Developing Areas”, writes: “Political
system is that system of interactions to be found in all independent societies which
perform the functions of integration and adaptation (both internally and vis-a-vis
other societies) by means of the employment or threat of employment or more or
less legitimate physical compulsion”.
- Thus the political system not only includes governmental institutions such as
legislatures, executives, courts, administrative agencies but all structures in their
political aspect.
- Among these are included formal organisations like parties, interest groups, and
media of communication; traditional structures such as kinship ties, caste
groupings anomic phenomena such as associations, riots and demonstrations.
- Consequently, the political system includes interaction between all the formal and
informal institutions. The process of interaction is divided into three phases –
input, conversion and output. The Indian Constitution reflects the various
interactions as many amendments were brought about to bring out Zamindari
abolition and socialism and remove poverty.
➢ Interdependence of Parts
- Interdependence means that when the properties of one component in a system
change, all the other components and the system as a whole are affected. In
political system the political parties having a wider base and mass media
(Television, radio and newspapers) change the performance of all other structures
of the system and affect the general working of the system.
- Not only that but the emergence of trade unions and pressure groups affect the
working of the political parties, the electoral process, the legislature, the
bureaucracy and the judicial system. For example, if the government is unable to
check the ever rising prices or inflation, then the labourers are bound to demand
more wages.
- In case the demand is not met by the employers, then the labourers may resort to
strike which may become violent in the long run. In that case the employers may
call the police and the police may resort to firing in order to quell the disturbances.
- In such cases the mill-owners will close the mills. In order to solve this problem
the government will have to intervene by appointing a tribunal consisting of the
representatives of the labour, the management and the State.
- If the dispute is not solved out by the tribunal, then the government will have to
pass the legislation fixing the minimum wages and increase the dearness
allowance according to the corresponding increase in the price index. The
government will fix the bonus etc. All this amply demonstrates how a happening
of a great magnitude affects the entire political system.
➢ Comprehensiveness
- Political System is comprehensive because it includes all the interactions from the
formal as well as informal institutions in the society. For example, it includes the
interaction of regionalism, religious upheavals, inflation, party-politics, tactics of
pressure groups and social changes brought about by modernisation.
➢ Change of Boundary
- Yet another aspect of the concept of the system is the change of boundary. The
political system consists of interacting roles of nationals, subjects, voters, the
legislators, bureaucrats and judges. The same individuals who perform role in
social and economic system also play their notable role in political systems.
- When the individuals form interest groups, vote or pay taxes, they change their
role from non-political to political ones.
- For example, on the Election Day, the citizens leave their farms, plants and offices
to go to the polling stations. In this way they are crossing the boundary from
economy to politics. Similarly, during the war time the large fluctuations in the
boundaries of political system take place.
- Therefore the boundaries of political system frequently change.

Characteristics of Political System in General

➢ There is universality of political system. It means that political system exists


everywhere
➢ Every political system performs the same functions, though there may be differences
in the different political systems and their structures
➢ Every political system has some structures. It is possible that there may be some
specialised structures which may perform more functions than the less specialised
structures.
➢ Every political system is mixed in the sense of culture because the system can be
more advanced or less advanced.
➢ Every political system is multi-functional and performs a number of functions
irrespective of the degree of specialisation.

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