19 The Legislature Three branches of government. Since i i i generally agreed that political power is aivisitia as aes tae : on Ley There is, first, the legislative power which formulates and expresses the will of the State. Being a representative assembly, the Legislature in a democratic government enacts the general rules of society in the form of laws. The laws of the State Prescribe the manner in which people are expected to live in a politically organised society. Secondly, there must be some Power to see that the laws of the State are duly obeyed by all and there is no infringement. This is the work of the executive. There is, thirdly, the judicial power. The judges determine whether the law is applicable ina Particular case or not. The judicial power determines ‘‘the manner in which the work of the executive has been fulfilled. It sees to it that the exercise of executive authority conforms to the general rules laid down by the legislateure.’"! If the executive acts in excess of the power vested in it by law, the judges may declare that the order issued by the executive is in excess of the authority given to it and, accordingly, ultra vires and in operative. But the legislature unquestionably occupies a superior place. The primary and the most important function of the State is legislative. The executive and the judicial departments cannot function until the legislature has functioned. Law must exist before a judgment can be given or the executive takes action. Every executive and judicial act involves primarily an enactment made by the legislature. Gilchrist compared the relation of the legislative, executive and judicial departments to the major and minor premises and conclusion of a syllogism. He says, “The legislative authority forms the major premises; the judiciary, the minor; and the executive, the conclusion... As the major premise is more important than the minor and conclusion, so the legislature is more important than the executive or Judiciary’? But the scales are reversed now. The all-round accepted concept of the Welfare State has blurred supremacy of the legislature. The Welfare State tends to concentrate 1. Laski, H., A Grammar of Politics p. 295. 2. Gilchrist, R.N.., Principles of Political Science, p. 293. Scanned with CamScannerThe Legislature 545 Power on the executive level and legislative branch, , Consequently, its ascendancy over the This is the inescapable reality of the twentieth century. FUNCTIONS OF THE LEGISLATURE Varying Extent of Functions, i i emer in ad anion The functions of the legislature are not Ifthe pattern is unlimited monarchy, as it was in Ccarist Russia, the legislature is merely a consultative body subordinate to the executive for all practical Purposes. Under a bureaucratic type, as it existed in the Provinces of India betore 1937, and persisted at the Centre till India became a sovereign and independent State in August, 1947, the legislature is completely subservient Powers of the legislatures and ruled The Gerinan Parliament conferred uj i pon the National Cabinet in 1993-in fact, upon Hitler himself, power for fou Ir years to make laws, conclude treaties, adopt budgets, and indeed to do, without check or restraint, “anything whatsoever, inside or outside of the constitution.....’” But the power conferred on Hitler never came to an end during his lifetime. Even the Iron Chancellor Bismarck, who wielded enormous authority in his time, never approached the power placed in the hands of the Nazi chief, But in a Parliamentary System, as it obtains in Britain and India, the legislature is superior to the executive in the sense that the latter is responsible to the legislature for all its acts and Ministers remain in office only so long as they can retain its confidence. Parliament in Britain is legally sovereign. It plays a double role and combines the constitutional and the legislative powers. It is competent to make and alter the constitution and, at the same time, make ordinary legislation. In the United States of America, on the other hand, the powers of the legislature are co-extensive with those of the executive. The functions of the legislature, therefore, differ from State to State. There is no uniformity. The main functions of the legislature may, however, be classified as follows:— Legislative Functions. As stated earlier, law is now regarded as the expression of the will of the people. The will of the people is expressed through representative assemblies and all other means of making laws have been swallowed up by legislation. Legislation is the most prolific and direct source of law. Again, laws must be consistent with the changing conditions of society and in harmony with the new social environments. Old laws which have become obsolete, are repealed and new ones substituted in their place. Under a parliamentary system the executive has a direct hand in the making of Iawe Before a Bill begins its career in the legislature, the Cabinet discusses t ie introduce a Bill on the initiation of a Minister. If the Cabinet ote aes itis i in either House of the legislature and it ee ea terete ere ait the Bill through all stages of i ister Con eee eam and see that itis finally passed and duly enacted. But 70 Scanned with CamScannerste Principles of Political Science ystem the executive is not in direct touch with legisla. ture. Itonly exerts its influence either through Presidential messages or through, members of Congress who belong to the President's party. The Government has no place in the legislature and all Bills, public or private, are introduced and defended by members of the legislature. Deliberative Functions. Legislative functions consist of two kinds of work: law-making and deliberative. In fact, there can be no separation between the two. Both are parts of the legislative functions, although some writers, as John Stuart Mill did, treat them separately. They argue that the function of law-making, particularly drafting of a bill, is a skilled work which needs con siderable experience, study and research. Mill said thata “‘numerous assemb| is little fitted for the direct business of legislation.’’* The amaterus make a bed job out of it when entrusted with this specialised function. The making of law should, therefore, be entrusted to a small committee of experts while the actual work of deliberation should be the function of the whole parliament, To make a law really the mirror of public opinion, it is necessary that it should not be made hurriedly. It needs proper thrashing so that its contents and ends may be considered from all points of view. For discussion two heads are better than one, and two hundred are better than two. In this respect a legislature is par excellence a deliberative body. The term parliament, which may be used for a legislature, is derived from the French word parler, which means to talk, and parlement which means a meeting for discussion. Legislature is a forum where thinking is done, as it consists of many persons representing numerous interests, various points of view, and different sections of the community. Deliberation, in fact, is at the heart of a democratic polity. It is the chief process by which policy is determined and laws are made. Since deliberation is a continuous process of debate, it was long felt that political deliberation should be carefully institutionalized and that led to the development of the elaborate codes of parliamentary procedure and practices which pervade the British House of Commons, the Indian Parliament, Congress of the United States and, indeed, parliaments of all democratic countries. This procedure leads to better and fruitful discussion, for delibera- tion not only gives an opportunity to each participant to promote the views and interests of the political party or group he represents, but also permits him to adjust his own views and even to change his opinions by listening to others. For this reason there are, generally, three readings for every legislative bill before itis finally voted upon. The first reading comprises only introduction of the measure and generally, there is no debate or discussion. After the Bill has been introduced, tis printed and members get its copirs to be ready for the second reading. On a day fixed in advance, the Bill is read for the secon¢ time. This is a crucial stage in the life of a Bill. The supporters and opponents of the Bill participate in discussion and stoutly present their respective po s of view. There is a general discussion and no amendments to the Bill are moved. Upon the conclusion of the debate votes are taken. If the majority votes in its favour, the Bill goes to the next stage. If it is defeated, It lapses. 4, Mill, 1.S., Representative Government, Chap. V. Scanned with CamScannerThe Legislature 347 4 |, voted on c y ly amended. The committee may even seek information from any source with Tespect to any point, invite experts from outside and summon any one for evidence, both oral and documentary. After the committee stage, it is referred back to the whole House for further discussion. There are many other rules of procedure. The objects aimed at are orderly and efficient dispatch of business, the prevention, on the one hand. of precipitate and ill-considered action, and, on the other, fruitless prolixity of eee Deliberation is, indeed, hammering legislation and chiselling it into alaw. = clause by clause, and probabl; Financial Functions, We are well aware of the conflict between the Stuarts and Parliament in Britain, It was all about financial matters and the principal means by which Parliament mounted to power was the power of the purse. The fact of representative democracy is the control and regulation of national finances by the legislature, and this is its most important function. It is a fundamental principle of public administration, and one which is nowadays generally recognised in all civilised countries, that no taxes shall be levied or expenditure authorized without the approval of the representatives of people. The theory ‘no taxation without representation’ recognises the supremacy of the legislature in raising revenues and incurring expenditure. In some countries, like the United States, war can be declared only with the consent of the legislature. This power is vested in the legislature obviously for the reason that war entails stupendous expenditure and the verdict of the representatives of the people must be taken regarding the justification of war and the expen- diture which is to be incurred in fighting it out. In Britain, war may be declared by an executive act, but grants are made available by Parliament. The executive cannot sanction expenditure without parliamentary approval. In this way, the legislature controls the domestic and foreign policy of the State. The principal financial function performed by a legislature from year to year is the presentation, consideration, and authorization of the budget. Viewed in simple outline, a budgetis the nation’s annual statement of accounts which shows, on the one hand, estimates of financial expenditure and, on the other, a calculation of anticipated revenues. The financial year generally begins on April first and the estimates of the coming financial year are presented to the representative chamber of the legislature in the second or third week of February of the year. The estimates, are discussed by the legislature and the number of days allotted for their consideration vary from two to three weeks or even more. The debate gives an opportunity to the government to explain and defend their proposals and to the Opposition an opportunity to air their grievances or to criticise the general ay of See 1 it ‘ive Functions. Nowhere in the world does a popular as- sembly setually participate in administration. Its proper jurisdiction is that of . i untries where the parliamentary or superintendence and control. But in cot s eee Cabinet system prevails the control of the legislature over the executive is ‘Scanned with CamScanner548 Principles of Political Science direct and immediate. The latter is responsible to the former for all its actions Questions and interpellations are asked to seek information from the govern. ment on matters of administration. If any act of government is resented by the public, their representatives may move a vote of censure and condemn, that action. If the government abuse their trust or act in flagrant disregard of the public opinion, the legislature may pass a vote of no-confidence and expe} them from office and appoint their successors. Strict control of the executive is enforced by the review of government's policies involved in discussions of the budget and the approval of proposed expenditure. If the government fails to get supplies, it must quit office and make room for others who can carry the legislature with them. In the United States, the Upper Chamber of Congress, the Senate, is vestéd with certain specific administrative powers. The Senate shares with the President the power of making all federal appointments. Again, all treaties negotiated and concluded by the President are to be ratified by a two-thirds majority of the Senate. The Senate also possess, by usage the power of investigating into various administrative scandals and cases of corruption. The investigating committees so set up can summon witnesses, official and non- official, call for papers and documents, and seek any other kind of information which may be deemed necessary. In a Presidential type of government the investigating committecs usefully serve the purpose of controlling the execu- tive. The legislature’s control over the executive, thus, keeps the government fully informed of what the country is thinking of, what it wants and especially of what it will not stand. Under a parliamentary system control and respon- sibility naturally go together. Since responsibility of government means its _ resignation from office whenever the policy of government proves fun- damentally unacceptable to the popular assembly. An obligation rests on the house to exercise a day-to-day control over the Ministry in such a way that fundamental disagreement between the executive and the representatives of the people will be clear and manifest. If the actual and possible mistakes of the government were not apparent the government might become irrespon- sible. So important is the function of controlling the executive that many statesmen would assign it to the legislature as its first and foremost duty. Bagehot placed legislation last among the functions he allocated to parliament Taylor, on the other hand, considers it a bit odd suggestion. His opinion is the very essence of parliament is its power to make laws. ‘Indeed rust a e force of the criticisng power of the House," he says, ‘‘is derived from es that it is a body which can, by means of passing laws, do anything it i a a Laski does not support Taylor’s opinion. To him the function of legis jatiot 5 not the only function of parliament. “Its real function is to watch the proces! of administration to safeguard the liberties of private citizens. The obligation of controlling the Government is more urgent today than i h before. The functions of the Government are so extensive now that ed touc! the very bones of individual lives. ‘The government departments, 3. Taylor E., The House of Commons at Work, p. 126. 6. Laski, H., Parliamentary Government in England, p. 161. ‘Scanned with CamScannerThe Legislature 549 remarks Herman Finer, ‘‘are virtually great monopolies; i : poles; they need a stron; force outside them to shake them up.”* The ition in the leg 4 this job on so many counts. ta cetera does Judicial Functions. The legislature in every count general i of two Houses. One is known as the Upper House, and the hes as she Lan House. The Upper House, in most countries, performs certain judicial func- tions. In Britain, the House of Lords is the ‘highest court of appeal. The Senate, in the United States, sits as a court of impeachment for the trial of the President and the Vice-President, while the charges of impeachment are preferred by the House of Representatives. Similarly, the Senate in France, according to the Constitution of 1875, was empowered to sit as a High Court of Justice for the trial of the President and the Ministers for high crimes. In India, either of the two Houses at the Centre can prefer a charge for the impeachment of the President. If the charge is preferred by the House of the People (Lok Sabha), the Council of States (Rajya Sabha) investigates the charge. If the Council of States prefers the charge, then the House of the People investigates it. But instead of making the investigation itself, the House may delegate the work of investigation to any Court or tribunal appointed by the House for that purpose. The impeachment succeeds if the House investigating the charge passes a motion by a two-third majority of the total membership of the House that the charge has been sustained. Constituent Functions. Legislatures have also constituent functions to perform. Parliament in Britain is both a legislative body and a constituent assembly. It can change or abrogate any law whatsoever and by the same procedure. Proposals to amend the United States’ Constitution must be made by a two-thirds majority of the Congress or by a national Convention which Congress calls at the request of the legislatures of two-thirds of states, Bills to amend the Constitution of India may originate in either Chamber and be passed by each House of Parliament by a majority of its total membership as well as by a two-thirds majority of the members present and voting. Some specified provisions are, in addition, to be ratified by half the number’ of states of the Union. Electoral Functions. Not only do legislatures usually elect their own officers, but they may also elect some executive officials. The elected members of both Houses of Parliament in India form a part of the electoral college for the election of the President. The United States Congress has electoral func- tions too. As a matter of routine, it meets in joint session every fourth year to count the electoral votes cast for the President and the Vice-President. If no candidate receives a majority of the electoral votes for President, the House of Representatives selects, each State voting as a unit, the President from among the candidates with three highest votes. When no candidate secures a majority of the electoral votes cast for the Vice-President, the Senate makes the choice from among the two candidates with the highest number of ee ie President of France, prior to the current constitution, was elected by the joint = action of the two legislative chambers. The Swiss legislature elects the - judiciary, members of the Federal Council, and the head of the civil service. Scanned with CamScanner550 ‘ artiament in India has the power to move Hote of the Supreme Court and of the High Courts on the for the removal oF jue uy and incapacity. and the address for such a ground of ee, assed by a two-thirds majority in each House. In Britain removal must be Paw ty by a joint address of both Houses of Parliament jndges cont Juuiges in the United States can be removed by the process of a rer and the procedure followed is exactly the same as in the case of the Present. that is, the Senate sits as a court of trial. ee Legislatures also work as organs of inquest or inquiries They often int commissions of inquiry relating to agriculture and industry or to find out the causes of social unrest, or mob violence, etc. Such commissions of inquiry collect information, receive memoranda, hear evidence and make Miscellaneous Functions. P! 7 recommendations. In order that the executive may not interfere in the legislative branch, a good number of constitutional safeguards are provided. It chooses its own Speaker and other officers and adopts its own rules of procedure and business. Its members may not be arrested while attending sessions or travelling to and from them for any reason except the commission of crimes. They may not be punished for anything they say in debate except by the House to which they belong. ORGANISATION OF THE LEGISLATURE Unicameral and Bicameral Organization. La should be ‘‘reason without passion.’’ This statement involves two things. In the first place, it is essential that those who are entrusted with the duty of making laws should avoid the dangers of rash, hasty, and ill-considered legislation. A due amount of caution and reflection are the prerequisites legislation. Passion is dangerous in law-making. Secondly, as laws are to affect all alike, it is necessary that the legislature should be a representative body of all the people representing numerous interests in order to secure the consent of all sections of opinion. Various means have been adopted to sccure these ends. One of them is the manner of the organisation of the legislature. When there is only one legislative assembly, the system of organisation is called unicameral. When the legislature is organised into two Houses, it is called the bicameral system. It is almost a dogma of Political Science now that the legislature ought to consist of two chambers. Single chamber government is considered the apotheosis of democratic rashness. Some writers characterise government by a single chamber as visionary, “if not corrupt and violent”, which usually ends in depotism. Sir Henry Maine expressed the opinion that almost any kind of second chamber is better than none. He said what ought to be expected of the second chamber is nota “rival infallibility but an additional security.” ment ae development of the Bicumeral system. The British Parlia- ee aeery hi Brees the mother of Parliaments. It constitutes the fi feature is that ra a bie epi lature in the modern sense and its most important Wittesghoe st is bicameral in character. “It is safe to say,’* observes » that it not assumed this form, there is little likelihood that Scanned with CamScanner584 Principles of Politica Science a essary ‘‘to enable the people, when they see an of his conduct to continue him in the station in order to prolon, uaity of his talents and virtues, and to secure to the government the advay of permanency in a wise system of ‘government.’’ The system of, Te-cligi enables the State to retain the services of experienced and talented Men who command public approbation and confidence. To forbid re-cligibility jg to deprive the State of the services of a wise and experienced statesman, “What could be more strange’’, maintained Judge Story, ‘“‘than to declare at the moment when wisdom was acquired that the possessor of it should no longer be enabled to use it for the very purpose for which it was acquired.”” A man who is assured of re-election can best harmonise his interests with di Re-cligibility helps him to rise high in the service of the nation, of reward and fame,” to quote Hamilton again, ‘“‘is one of the. strongest incentives of human conduct; and the best security for the fidelity of mankind is to make their interest coincide with their duty.” The rule of inel igibility, on the other hand, creates in the Executive Head a tendency to make the best use of the opportunity in order to promote personal ends. He “might not scruple to resort to the most corrupt expedients to make the harvest as abundant as it was transitory.”’ Finally, re-eligibility ensures Stability in administration. If re-eligibility is not permitted, administration would drift along without plan or policy. The expediency of re-cligibility, Nn to 18 the tage ibility uty, “The desire however, depends upon the length of the term of office and the extent of Power which the executive head actually exercises. One elected for six or seven years can manifestly be made ineligible for a second term but the executive head elected for, say, four or five years should obviously be made eligible for the second term to increase his respon. sibility. ' FUNCTIONS OF THE EXECUTIVE The most fundamental executive functions are those which relate to essential activities of government. The modern State is a complex structure, and it has to cater for the satisfaction of innumerable human needs. The Province of the State has, consequently, considerably increased and modern governments have become more socialistic in their outlook. We do not agree with the old theory of Individualism that the State is a necessary evil and its only function is to preserve internal peace and external security. Our political outlook is entirely changed. The State is now Tegarded as a means for achieving the welfare of man. It must provide for that atmosphere in which welfare can best be realised. If this is the raison d’etre of the State, then, no gid Tine of demarcation can be drawn to define its functions. There is however, no uniformity between the executive functions of one State and those of the other. Broadly speaking, the essential functions may be enumerated as: Internal Administration. Every State is a politically organised society. ‘The purpose of the State cannot be realised, unless there is internal peace and rider. It is the foremost duty of every executive to devise ways and means it Grtet to ensure the maintenance of peace within the country, The department ‘hich is responsible for the maintenance of internal reace sad orders called Scanned with CamScannerThe Executive ee the Home Department, or the Department of the Interior-—the Nomenclature. varies from State to State. Then, it is the duty of the executive to implement policies and direct the execution of laws. It entails the division of the work of government into different departments and agencies and their organization in such a manner as to ensure efficient and effective administration. It also coordinates the business of government. Various departments of government do not function in water-tight compartments. They act and react upon one another. The political executive appoints secretaries and other top officials to head the various administrative departments. In the United States, Secretaries are appointed by the President with the consent of the Senate. In Britain, India and other countries with a parliamentary government, they are appointed, in terms of law, by the Chief Executive of the State, but, in actual practice, the Cabinet does so and, to be more precise, they are really the choice of the Prime Minister. They hold office at the pleasure of the head of the State, though their removal is governed, according to the provisions of the Constitution and laws enacted by Parliament. In the United States the power of the President is unqualified. The Supreme Court has ruled that the consent of the Senate is not necessary in case of removal, as it is in the case of appointments. External Administration. All States are sovereign and independent. But no State can lead an isolated life or exclusive independence. All States exist under conditions of mutual dependence. To ensure mutual peace and security and to avoid all acts of aggression against one another, States adjust their differences, if any, through diplomatic negotiations. In order to further inter- national good will and amity treaties are concluded and representatives are appointed in foreign countries. The department of government which conducts foreign relations is called the Department of Foreign or External Affairs. The conduct of foreign relations includes the reception and dispatch of diplomatic agents and recognition or non-recognition of the independence or legitimacy of new States and governments. It negotiates and concludes, through its representatives, treaties and agreements. In some States the treaty-making power of the executive is subject to approval and ratification of one or both the Houses of its legislature. In the United States the Senate ratifies all treaties, Although the legislature, generally, controls the foreign policy of a country, yet it rarely interferes in the actual administration of the foreign department, as the conduct of foreign affairs requires high technical skill, secrecy of information and personal tact. Defence and War. It is the essential function of the executive to secure territorial integrity of the State and to protect the country from external aggression, and when necessary, to wage war. The problem of common defence today is entirely different from what it was a century or so before. No country can afford to wait for defence until war is declared. It must always be prepared to ward off the probabilities of war and to win, if it actually comes. ‘The department, which is concerned with the defence of the country and controls its military operations, is called the Defence and War Department. This department may be bifurcated into two—internal defence, and war- Scanned with CamScannerPrinciples of Political Sci, 586 iples of ‘al Science a country is in the midst of hostilities. The Defence and War fc strength and organisation of the armed forces of and Air Force, and appoints the general and other jreat Britain, the Executive has the power to declare war Se ie legislature, In the United States war can be declared by Congress and in India itis declared by Parliament, But in every country the wers of the executive during the period of war increase immediately ang immensely. Usually the legislature expressly confers powers on the executive to control production and transportation, to establish rationing, to institute censorship, and to suspend the operation of certain guarantees of rights and civil liberties. Even when such powers are not conferred, the executive may take any action necessary to safeguard the safety of the State and ensure the successful prosecution of war. Financial Functions. All governments spend huge sums of money every year to perform their multifarious functions. When money is to be spent, it must be obtained by some means. Governments meet their expenditure by taxing the people and by tapping other sources of income. This is an executive function and the department which makes provision of ways and means is called the Finance Department or the Treasury. This department is the most powerful, because it not only allocates money to the different departments but also regulates and controls their expenditure through audit. department when Department determines th the country, Army, Navy Legislative Functions. The legislative functions of the executive vary with the form of government that prevails in the State. It is everywhere the tight of the executive to summon, adjourn and prorogue the sessions of its Parliament. In countries where there is a parliamentary government, the executive dissolves the popular House and orders fresh elections. It can also convene special sessions of the legislature whenever necessary. The executive furnishes necessary information to the legislature regarding the needs of the country, either at the beginning of the session, or from time to time, during the continuance of the session. The Speech from the Throne, at the opening of Parliament in Britain, or the Presidential address, on the opening day of the session of Parliament in india, is, generally, the exposition of the policy which the government desires to pursue and the legislation in pursuance of that policy which it intends to enact. In the United States the President has the right to send messages to Congress, embodying the various legislative actions con- sidered expedient, including the budget. Ina parliamentary government the real executive, that is the Ministry, is part of the legislature; it controls the time schedule of the legislature and, thus, Provides the much needed element of leadership to the legislature. It is the function of the executive to initiate and pilot all public bills and see them through in the legislature. All bills passed by the legislature must receive the assent of the executive head in order to become laws. He can also veto or refuse his assent thereto. The veto power has, however, fallen into disuse in most of cod with parliamentary government; in others it is only a suspensive a Bis example, in India the President can withhold his assent to a bill. B ‘n he does so, he must send the Bill to Parliament for reconsideration long with his message. If Parliament again passes it either with or without Scanned with CamScannerThe Executive 587 amendments, the President must give his King may refuse assent to anv bill passed King has now become obsolet lever been exercised since 1707. Ina non-parliamentary o presidential government the power of vetoing a bill by the Chief Executive is an effective control over the legislature, although it m: not be an absolute veto, as in Britain. The President's veto in America can te negatived on reconsideration of the Bill by a two-thirds majority vote iene House of Congress. Nevertheless, itis a potent instrument in his hands, because. two-thirds majority in each House is difficult to secure, The President also exercises what has come to be known as a “pocket veto.’” and it is absolute. If the President fails to sign a Bill within the specified period of ten days and if Congress adjourns within that.period the Bill lapses and is automatically killed. A considerable number of last minute Bills, to which the President may be opposed or for which he does not want to take responsibility, are not assented to and, thus, fail to become law. The Presidents have generously used this device, President Jimmy Carter killed ina single day, November I, 1980, three Bills he considéred inflationary. The veto power vested in the executive is, therefore, valuable as a means of preventing hasty and ill-considered legislation and gives the executive a means of defence against encroachments n its powers and prerogatives. In every country the executive is armed with the power of issuing Ordinances. It is a sort of subsidiary power of legislation which takes the form of decrees, Frequently, this power is expressly conferred on the Chief Execu- tive by the Constitution. The Constitution of India empowers the President to issue at any time, except when both Houses of Parliament are in session, Ordinances, which will have the same effect as Acts of Parliament. Every such Ordinance must be laid before both Houses of Parliament and it ceases to operate at the expiry of six weeks from the reassembly of Parliament or if before the expiry of that period resoultuions disapproving it are passed by both Houses. In the absence of an express authority in the Constitution, it is deemed to be an inherent power of the Chief Executive to issue Ordinances. In countries with a monarchical form of government, the Ordinance issuing power is considered a part of the royal prerogative, unless there is a constitu- tional or statutory limitation to it. This device of legislation has still more enhanced the legislative powers of the executive. The increased range of activities of the State has forced Parliaments, during recent years, to delegate wide legislative powers to the executive. The legislative delegation of authority may be effected in various ways. For example, in Britain Parliament may legislate in general terms on some question and leave one of the departments to work out the detailed regulations necessary to give effect to the statute. It may also merely empower a department to make rules with regard to a specified matter. Rules, Regulations, and Orders so made are known as delegated or subordinate legislation and have the force of law. They are declared unconstitutional only if they offend against the parent law. Delegated legislation is quite inescapable in the context of a modern State and it has significantly added to the powers of the executive. It is also an ies arrangement for an emergency as it arms the executive with power to ee immediate action. The Committee on Ministers’ Powers in Britain, while assent thereto. In Britain, J t legal by Parliament. But this power crite Scanned with CamScannerPrinciples of Political Science 588 ith thi .d: ‘In a modern State there are many occas- dealing with this Aspe ee reed for legislative action. For many such needs sions where hevation is the only convenient or even possible remedy.” delegated Ite ited legislation enables the Executive to provide for all the Moro contingencies arising out of reform without having to return to vi rmnent for amending acts or for additional powers. Delegated legislation also relieves the pressure-on parliamentary time by removing details of administration from Acts of Parliament. Judicial Functions. The right of pardon or clemency is, by common consent, regarded as a natural and necessary part of executive function. This isa semi-judical function and is justified for various reasons. In the first place, it is intended to correct an error of judgment of the judiciary which cannot be rectified otherwise. Moreover, a judge decides the case on its merits and not on grounds of political expediency. Many persons may be convicted of political offences, but with the lapse of time their detention may become inexpedient. By vesting the executive with the power of pardon, the release of such persons can be ensured. A very important result of delegated legislation is the emergence of administrative adjudication empowering the executive agencies designated by statutes to hear cases involving particular fields of administrative activity. Finer maintains that ‘‘wherever there is administration and law, there is administrative law.”’ The great majority of legislation passed by Parliament of every country and Regulations made thereunder relate to matters of public administration and vest judicial power in the executive to administer the law. Delegated legislation has naturally made the executive more powerful than before. This has evinced a stout protest and Lord Hewart in England reflected the attitude of alarmed jurists in his book, The New Despotism, and called to the attention of the public the dangers that he believed to be attendant on this development. Other Functions. The functions enumerated above are usually regarded as essential functions of the executive. But, as stated above, we cannot circumscribe the functions of a modern government. No government can afford to ignore subjects like commerce, education, agriculture, transport, commumcations, etc. These are beneficient departments and without their proper development it is impossible to promote that atmosphere which helps to advance the welfare of man. Similarly, most of the governments now actually run certain public utility services, and impose statutory restrictions on the production and sale of various commodities. These changes in the province Of the State have been introduced as a result of conscious attempts to bring the ¢conomic organisation in conformity to the moral and political ideas. Much has been done to moralise our economic system and ‘coordination, regulation and control, initiative and encouragement, in many cases ownership, na oo as essential in these fields; and the departments concerned are maser ae sree in is eyes of the public than the so-called essential or departmes Scope of the modern State has, in fine, increased ————_ 5. Gilehwist, RN., Principles of Political Science, p.316. Scanned with CamScannerCHAPTER XXVII The Executive The term executive is derived from the word “execute” It*is the Agere gatelor totality of all the functionaries or agencies which are concerned withthe execution of the will of the state as that will has been formulated and expressed in terms of law.” Dr. Finer is of the opinion that “it is most useful to look upon the executive as the residuary legate, for that explains the mixed nature of its fu nctions and parts,” Itis well known that formerly all the powers in the state used to be in the hands of the executive. It was later on that the functions of the judiciary and the legislature were separated. The result is that the executive possesses today whatever has not been taken away by the other Organs of the government. Kinds of Executive (1) A distinction must be made between the various kinds of executives which are to be found in the world, The executive may be real or nominal. The American President is the real executive and he has actual control over the administration of the country. In the case of a country having a parliamentary form of government, there are two kinds of executive, While the Prime Minister and his colleagues are the real executive, the king or the President is the nominal and the Prime Minister and the members of his cabinet are the real executive. In India, the President is the nominal executive and the Prime Minister and his colleagues are the real executive, In the states in India. the Governor is the nominal executive and the Chief Ministers and their colleagues are the real executives (2) In the case of a single executive, the ultimate power in the state is in the hands of one person. In the case of a plural executive, the supreme executive authority lies in the hands of a group of persons, The American President is an example of the single executive and the Federal Council of Switzerland is an example of the plural executive. The President of the Federal Council is not the supreme authority and that vests in all the seven members of the Council. History also gives us certain examples of plural executive, In ancient Athens, the executive power was split up into fragments and divided amoug generals, archons, etc, The Roman constitution provided for two consuls such of whom was independent of the other. As a matter of fact, each could veto the action of the other, There were two kings in Sparta. The principle of plurality was extended to the organisation of subordinate offices. The French constitution of 1795 vested the executive authority in the Directory of five persons. About the Directory, St. Girons says that il vas sad government; it vacillated between feebleness and violence. The enfeeblemnee the executive power led to the establishment of a turbulent and irresponsib assembly.” In the Soviet Union, there is no formal presidency. The Presidium consists of 33 members and it is elected for four years by the Supreme Soviet. Stali called the Presidium a collegiate President. 536 Scanned with CamScannerThe Executive 537 Many advanta that it furnishes gr zes have been claimed for the plural executive. It is contended ter guarantees against the dangers of executive abuse and oppression. It renders more difficult executive encroachment upon the sphere of the legislature and upon the liberties of the people in general. It is difficult to have a coup d'etat in a plural executive, It is likely to have a higher degree of ability and wisdom than is to be found in a single person. About the plural executive of Switzerland, Lord Bryce says that as it is a non-partisan body, it is able to influence the legisla sembly and adjust difficulties. It attracts and secures in the service of the nation the best talent of the country. It secures continuity of policy and permits traditions to be formed. The great merit of a single executive is that it is based on the principle of unity which is very important in administration. According to Hamilton, “Energy in the executive is a leading charateristic in the definition of good government. It is essential to the protection of the community against attacks. It is not less essential to the study administration of the law ; to the protection of property against those irregular and high-minded combinations which sometimes interrupt the ordinary course of justice ; “to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy.” Judge Story says: “The most distinguished statesmen have uniformly maintained the doctrine that there ought to be a single executive and a numerous legislature. They have considered energy as the most necessary qualification of the executive power and this is best attained by reposing it in a single hand. (3) The cabinet form of government combines the single and plural executive. The Prime Minister follows the principle of single executive and his colleagues follow the principle of plural executive. The combination of the two is praised by the students of political science. The Politburo or Presidium type of executive has developed in the Soviet Union and has been adopted by Yugoslavia, Poland, Czechoslovakia and China. It is a combination of formal governmental units and formal party structural units. The Politburo or Presidium is the top unit of the Communist Party and its members are the real policy-makers in Soviet Russia. The membership of the Politburo is composed of approximately 10 regular members with 4 or 5 alternates and is elected by the Central Committee of the party. The Soviet Constitution provides for a formal executive body comparable to the cabinet under the parliamentary system. The dominant role of the Communist Party in the Government has resulted in the development of absolute power for the Politburo. The supremacy of party over Government is guaranteed by the fact that the key personnel in the Council of Ministers are also members of the Politburo. The Council of Ministers is the executive agency of the Supreme Soviet, the highest legislative body in the Soviet Union. The Chairman of the Council of Ministers is also usually the Chairman of the Politburo, In addition to holding the principal positions in the party, the members of the Politburo hold many of the chief positions in the governmental structure as related to the chief legistative body, in industry, dgriculture, trade unions and the armed forces, The result is that the Politburo has threads of control throughout this vast interlocking directorate which guide every aspect of Soviet lire. It is concerned with initiating policy, selecting key personnel, formulating legislative-executive. decrees and supervising the execution of policy. The dominating force in the whole system is the will of Communist Party as expressd by its leader or leaders. As there are no opposition parties, this force is extremely significant. The Council of Ministers is actually not responsible to the legisiature. Scanned with CamScannerPolitical Theory 538 nto the lowest authority. As the the only check seems olicy is made by those Policies are formulated at the top and handed dow facaee Politburo represents the centre and actual location 0! Pp . to be the failure of a major policy. The decision to change a p' who command the most power at the time. , fee reninicoe cs ist ty! “ve was established in Italy after Mus cam roe Fee Under le the government were maintained ower in 1922. Under it, the forms of parliamentary nm bat all real power fell into the hands of Mussolini. Mossolini was the head of the Government and he was the Premier or President of the Fascist Grand Counci oa body consisting of the leaders of the Fascist party, heads of the Waa tainay departments of Government, the Presidents of the legislative bodies and other key leaders of state organised groups. All appointments to the Grand Council were made in secret on the recommendation of Mussolini. All substantive legislative power was in the hands of the executive. The power of the executive to issue decrees centralised all policy-formation in the hands of Mussolini. The decrees issued had the force of Jaw with or without the approval of parliament. As parliament was gradually replaced by the corporate organisation of society, the total control of the executive over all stages of policy-making became complete. ; The Nazi executive was set up in Germany after Hitler came to power In 1933. The office of the President of the Reich was eliminated and all executive power fell in the hands of the Chancellor and Hitler himself was athe Chancellor. Hitler was the Head of the Nazi Party and his ministers were chiefly high party officials. The Reichstag was a rubber stamp of the Nazi Party. It had no power to remove any minister or in any way put checks on his authority. An enabling law authorised Hitler and the members of his cabinet to make laws by executive decress. All elements of society such as agriculture, industry, labour and the professions were tightly organised under state leadership. In order to consolidate control, important Nazi leaders were put in the chief positions in the Government organisation. Hitler was put forward as the embodiment of the German national spirit. He was regarded as the source of law. He was supreme in policy-making. The members of the Nazi Party who occupied all key positions in the Goverment, were under strict discipline and were responsible for supervising the execution of the policy handed down from the top. It was the duty of the party officials to act as special watchdogs and see to it that the policy of Hitler was strictly carried out. Those who failed to do so were promptly punished. The appointment and promotion of all officials had to be approved by the leader or his immediate subordinates. All party and govermental agencies of the executive were mobilized under Dr. Goebbels who was put incharge of the Propaganda Ministry. He effectively controlled the press and all other means of communication so that the Nazi policies and programmes could meet maximum support. As regards the United Nations executive, it rests in the hands of the Secretary- General who is chosen for a term of 5 years by the Security Council and the General Assembly. As the chief executive of the United Nations, he acts in the most important area of international policy. He furnishes leadership on political issues. pee may mean the difference between peaceful negotiations and an outbreak af violence His success depends onthe timing, boldness, perseverance, initiative aie Nota satisfactory compromises. He is the liaison agent within the United Nations between the commissions and specialised agencies such as the International Labour Organisation, World Health Organization, United Nations Sea Scientific and Cultural Organization, the General Assembly, the Security Council, the Economic and Social Council and the world public. He has Scanned with CamScannerand influencin ea : : : also ekpresses his own views at the mecting of the therole ofa mediator. This wea dee) COUN: Intimes of major crises, he can assume Nas done by Trygve Lie on the occassion of the Berlin crisis between the Soy i a. aa ypuoasad the United States. He has also the power to appoint making preparations fa ec aWe Staff of the United Nations Secretariat. While bee mectings of the General Assembly and the Sicurity ; Power to establish priority and to place items ou the agenda. This y be miade between . olitic ive. ical executive consists of Politicaland permanent executive. Politi varipus departm a members of the executive who are the heads of the Taal fa ‘partments but Whose tenure of office is a temporary one. Inacountry like ‘a, the political executive consists of the Prime Minister, the ministers and the Parliamentary secretaries. They remain in office so long as their party has a Twlority in the legislature. They have to resign as soon as they are defeated. In the United States, the President is the political head. He is elected by the people for a Period of four years. He has to go after that period unless he is re-elected. In Switzerland, the political executive is represented by the Federal Council. It is elected by the Federal Legislature. A politicalexecutive may be of the parliamentary type or presidential type. It may be a single executive or a plural executive. As regards the permanent executive, it consists of all those permanent and salaried officials and subordinates who carry on the day-to-day work of the administration. Their tenure of office is permanent and they are not affected by the ministerial changes. Most of them are recruited after a competitive examination. Their duty is to carry out the policy as laid down by the political executive even if they do not approve of the same. Requisites of a Properly Organised Executive (1) The first requisite which is accepted by all is the unity in the executive. Napoleon is said to have remarked that one bad general is better than two good ones. One of the causes of the failure of Aurangzeb was that he always put two persons in charge of an expedition. His object was that one would act as a check on the other. Actually what happened was that they hampered work and never succeeded in accomplishing what was given to them. There can never be any unity of purpose and promptness in action if there are many persons who have co- ordinate powers. The proper function of the executive is merely to carry out the wil of the peuple as expressed by the legislature and for that work, unity is essential. Sometimes,. certain matters of the executive have to be kept secret. That is nat possible if there are many persons who have equal powers and they all have to share che secret. There is every possibility of its breaking out. ; (2) Unity does not mean that the head of the executive cannot delegate his functions to his subordinates. He can appoint an executive council to help him in his work, However, if unity of action is to be maintained, he must have the final say in the matter. The working of the Regulating Act, 1773, showed that the position of the Governor-General became pitiable because he was bound to follow the ns of his Council. It was because of that defect that later on the Scanned with CamScanner540 Political Theory Governor-General was given the power to overrule his councillors and act according to his judgment, A similar power was given to the Secretary of State for India vis-a-vis his advisers or the members of the India Council. (3) Another requisite for an efficient executive is that it should be sufficiently strong. It is obvious that a weak executive is not competent to perform its duties. It must possess alll those powers which are necessary to meet any emergency. The constitution should be so flexible that the executive is in a position to assume all those powers which are necessary for its existencee and its capacity to serve the people. Hamilton has rightly said that a weak government is another name for bad government, However, this does not mean that the government should be given too many powers, The reason is that if too many powers are given to the government, there is every possibility of a tyranny of the executive. Power must be relative to functions. Hence, only that much power should be given to the executive as is sufficient to enable it to perform its functions efficiently. (4) Experience shows that the tenure of the executive should be neither too long nor too short. In case the executive power is kept in the hands of a person fora long time. there is every possibility of his abusing it. He may start thinking that he has a right to exercise those powers and forget altogether that his powers are merely a trust to be exercised for the good of the people. Similarly, if the tenure is very short, it may lead to many ev'ls. This is clear from the experience of France where the ministries change very frequently. There is no continuity in the policy of the government. There is “an intolerable vacillation and imbecility.” When there are too many elections at short intervals, the normal life of the people is unnecessarily disturbed. They are also burdened with a lot of expenditure on account of elections. Hence the duration should be moderate like that of the American President. (5) Another requirement is that the relationship between the executive and the legislature should be such that there is co-operation between the two. It is only then that the will of the people can be carried out properly and efficiently. Such asystem prevails in a parliamentary government like that of England. Where the executive and the legislature are separate, as in the United States, many difficulties have to be faced. The legislature may not give to the executive all those powers which are necessary for the performance of its duties and the executive may not enforce the laws passed by the legislature in the right spirit. The results are irresponsibility and inefficiency. There is no speed and no promptness. (6) The executive must be responsible to the people. The latter should have the power to decide at regular intervals whether they want the continuation of the executive or not. Without this, the government will be a tyranny Hamilton has summed up the problem in the following words: “The ingredients which constitute energy in the executive are first, unity: secondly, duration; thirdly, an adequate provision for its support; fourthly competent powers. While those which constitute safety in the republican sense are first, a due dependence on the people; secondly, due responsibility.” Modes of Choice of Executive (1) There are different methods of choosing the i state indifferent countries, In some, the hereditary principle prevails. This isso in countries like Great Britain where a monarchical form of government exists. The same is true about Japan, Iran, ete. Formerly, hereditary heads of states were to be found in many countries. However, since the end of the First World War, the trend chief executive head of the Scanned with CamScannerThe Executive 543 allowed to stand for the thir provides for re-election (tr Paeate The Constitution of the Irish Free State Constitution of Burma, The law does nat put say tanat a, prowsion inthe Seen S. The law docs not put any limit in India but Dr. Rajendra P the convention by not standing for th d Many advantages are claimed {, lection. Accord election is necessary “to enabl ple when they ee reason to apo o Sonali anes able the people when they see reason to approve of his ec him in the station in order to prolong the utility of his talents aaa aaron tos Cure to the government the advantage of permanency in a wise system inment.” Again, “The desire of reward and fame is one of the s gest Incentives of human conduct: and the best security for the fidelity of mankind is to make their interest coincide with their duty.” Judge Story says What could be more strange than to declare at the moment when wisdom was acquired that the Possessor of it should no longer be enabled to use it for the very purpose for which it was acquired.” Functions of the Executive According to Dr. Garner, the functions of the executive can be discussed under the following heads: diplomatic, administrative, military, judicial and legislative. As regards diplomatic functions, their necessity is increasing day by day as the whole world is becoming one unit. The result is that we require the appointment of ambassadors, ministers and personal representatives by the different governments. It is through them that their governments deal with other countries and enter into agreements and treaties. The procedure for treaty-making differs in different countries. In the United States, the President can make treaties but they must be ratified by the Senate. The check of the Senate is not nominal but real. It is well known that although the Treaty of Versailles was negotiated by President Wilson the American Senate refused to ratify it. In England, the power of making treaties rests with the executive and there is no necessity of its approval by Parliament. However, no government in England would enter into a treaty which is opposed by the people or Parliament. In France, the legislature cannot modity or amend treaties submitted for its consideration and must approve or reject them as a cera regards administrative functions, they embrace “all those matters which have to deal more directly with the strict administration of the government such as ‘the appointment, direction and removal of officers, the issue of instructions and ordinances and in general, all acts relating more directly to the execution of the laws.”" This sphere of executive is expanding every day as the modern governments are taking over more and more functions into their hands. The performance of those functions requires the employment of a large number of officials for running the oie of defence ofa country retts with the executive, The executive hasto maintain an efficient and sufficiently strong army, navy and air foree to defend its ‘ers against the attacks of outsiders, If the executive ignores this function, the Sere aieaee of the state is jeopardized. [tis always in danger of being liquidated. Tris well known that when India wi autncked by Chinn in fed tevian armies were a ause the defence of the country had el 7 ; Socata the judiciary must be independent and should pleg elnets he executive, but that does not mean that the executive ; ee adic ial functions. In most countries, it 1s the executive that makes Scanned with CamScanner544 Political Theory executive is concerned with the organisation of the judicial machinery and also grants pardon and reprieve. Regarding the power of pardon, Hamilton says: “One man appears to be more eligible dispenser of the mercy of government than a body of men”. Moreover, the growth of administrative law and administrative justice is giving the executive a hand in the judicial field. Instead of allowing the regular courts to try cases, those are being disposed of by the administrative tribunals, Although the executive is separate from the legislature, it exercises a lot of control in the legislative field. In a parliamentary form of government like that of England, it is the executive that is the leader of the legislature. The party having a majority in the legislature forms the government and continues in office so long as it enjoys the confidence of the legislature. The executive summons the legislature, draws up its time-table and also decides which bills are to be enacted into laws. Those bills are also drafted by the executive, The executive initiates the bills and also pilots them through. Under such a system, the power of veto of the executive is not used. Ina country like the United States, the veto power of the President is real and puts a check on the independence of the legislature. The President can veto a bill passed by the Congress. In a country like India, the executive is given the power of making ordinances. Under the Government of India Act, 1935, the Government was given the power of making what were known as Acts of the Governor and Governor-General, In certain cases, the previous sanction of the Governor-General was also required even to introduce certain bills in the legislature, The growth of delegated legislation is extending the sphere of the executive in the legislative field. There is a rush of work in the legislature. Laws are growing more and more complex every day. The result is that the system of passing what is known as skeleton bilis is being resorted to. This enables the executive to supplement.the law by issuing rules and regulations or orders-in-council. The scope of the functions of the executive is bound to increase in the future. The old concept of a police state has been given up. We believe in the concept of a welfare state. If the functions of the state increase, the duties of the executive are bound to increase. Dr. Finer rightly points out that the scope of the state today “hardly fails to envisage any branch of the moral or material sides of human endeavour. The record is written on the roads, the gutters and the buildings and spells what the state has done in order that society may have a modicum of wisdom, protection of persons against criminals and mechanically propelled vehicles, and environmental and personal defence against deadly bacteria. The annual thousands of Rules and Orders, the detailed and present plan of activity of all modern States, reveal how the State concentrates upon each individual and weaves his very impulse into the myriad threaded warp of its existence...The State is everywhere, it leaves hardly‘a gap.” Leadership of the Executive Barker says, “If the growth of the legislative organ, in consequence of the development of the cabinet system, was the notable feature of the eighteenth century, it may be said that the growth of the executive organ, in consequence of the extension of rights and the corresponding extension of services which mostly fall to the lot of the executive, is the notable feature of the twentieth.” The executive today is not only the executive but also the legislature and the judiciary. Its functions have expanded in all directions. The executive does the work of the legislature in many ways. Most of the legislation emanates from the everntive, It is the executive which decides which Scanned with CamScannerCHAPTER XxxVIll The Judiciary ary in political construction is nation’s rank in political which justice, as defined by “Lord Bryce writes: “If the Importance of the Judiciary = Sidgwick says: “The importance of the Judici , rather profound than prominent. In determining. civilization, no test is more decisive than the degree In " Fee aer eae ana the law, is actually realized in its judicial administra Jah : law be dishonesty administered, the salt has lost its flavour, if it be weakly and i iti by the certainty than by fitfully enforced, the guarantees of order fail, for itis more 1 the severity of punishment that ‘offenders are repressed. If the lamp of justice goes ‘out in darkness, how great is that darkness.” Again, “The eis no better test of the excellence of a Government than the efficiency of a judicial system, for nothing more clearly to itizen than the feeling uches the welfare and security of the average cl that he can rely on the certain and prom pt administration of justice.” Laski says: “When we know how a nation?state dispenses justice, we know with exactness the moral character to which it can pretend.” George Washington says: Administration of justice is the firmest pillar of government. Law exists to bind together the community; it is sovereign and cannot be violate d with impunity.” According to Bentham, “The administration of justice by the state must be regarded as a permanent and essenti al element of civilization and as a device that admits of no substitute.” It is unfortunate that while the people attach too much impor ce to the legislature and the executive, the judiciary is usually ignored. The man in the street does not understand and appreciate the important part played by the judiciary in safeguarding the liberties of the individuals. Students of the Stuart period of the history of England know that in spite of the arbitrary rule of the kings, the people did not suffer much as the strong judiciary of England acted as a shield to protect the individuals. Wherever the judiciary is strong and not subservient, the executive dare not act arbitararily in its relations with the people. If a person is unlawfully arrested, a writ of habeas corpus can bring that person to the court and he can be detained in jail only if the police or the executive can convince the judge concerned that his detention is according to law. The judiciary will see to it that the rights of the people are protected. Once the law has been made, it cannot be giv en any arbitrary interpretation by the executive. It is up to the eto decide the sania cf the law. courts to decide the Experience shows that the judgments gi F individuality of the persons cae Sudements given by the judges depend upon the will be vtiated by his communalism IT he iscerrape he naa ce nacteg tothe parties concerned. If he is an upright man ts one he cannot give justice to the spade. If the police has transgressed the tim 7 My I not be afraid of calling a spade a from passing strictures against it: The arbre ooo dude will not hess ¢ arbitrary action of the biggest official will be 556 Scanned with CamScannerThe Judiciary 357 condemned by a court of law, says: “Men who are to make j i : ij perform their functions, the m upon which they shall hold pow of political philosophy.” 7 though the i : inpstiame eat Hi of the judiciary cannot be doubted, the degree of judiciary not cava ie England where the laws are not codified, the precedents to find out the law " law but also makes it. One has to dig deep into the iicimperiamee oui of the country. Where the case law is held in respect, Itis well-known > iciary becomes evident. ‘ icaw cover allipoasible caeeroa legislator can make any law so comprehensive that ecIaeR ee ‘The result is that the judges are called upon to apply Face ner exactly covered by the letter of the law. They are rans aenatarbret the law according to what seems 19 them to be equitable. vent apie of lab iat the interpretations given by the judges have changed the y spirit of law. The letter of the law may remain the same, but its substance may change. The subsequent judges usually follow the decisions and interpretations of their predecessors. In the case of a rigid constitution, the judiciary becomes a coordinate department of the government along with the legislature and the executive. The judiciary is not only the final interpreter of the constitution, it is also its guardian. It is rightly pointed out that itis not the people who govern America but the 5 out of the 9 judges of the Supreme Court of America who decide what the law of the country is. The question is not whether a particular law is good or bad, what matters is whether the Supreme Court regards that law as ultra vires or intra vires. Lord Bryce says: “Where questions arise as to the limits of the powers of the executive or of the Legislature, or in a Federation as to the limits of the respective powers of the Central or national and those of the State Government, it is by @ court of law that the true meaning of the constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and authorised interpreter of what the people intended to declare when they were enacting fundamental instrument.” That is the glory of the judiciary. Professor Laski justice in the courts, the way in which they are to ithods by which they are to be chosen, the terms ver, these and other related problems lie at the heart Functions of the Judiciary The judiciary performs very important functions and the most important is that of the administration of justice. Whenever a case comes before a judge, it is his duty to interpret the law of the country on that point in an impartial manner and give his decision accordingly. tis his duty to sce that justice is dispensed according fo the law, He must not give any arbitrary interpretation. He must not take upon himself the work of the legislature. However, while giving his decision, he is at liberty to discuss the law in detail and also give his honest opinion as to how he considers the law to be defective on that point. If he pleases, he can make his own suggestions. Whenever the various parties come to a court of law with their conflicting claims. itis the duty of the judge to decide which claim is according to the law of the country. It is also his duty to punish the culprit so that justice may prevail in the country ‘Although a judge is not a legislator, he adds to the law of the country in his own way. A judge gives his own view of the meaning of a particular enactment and itis his interpretation that is considered to be the law of the country till itis set aside by a higher court or by a new law passed by a competent legislature, The judici decisions play an important part in developing the legal system of a country. Scanned with CamScannerPolitical Theory “The judiciary isthe custodian of a written constitution. Judges are required to decide whether a particular law passed by the legislature ts within its competence or hot. If tis found to be not within its competence, it has to be declared ultra vires. The Supreme Court of India has declared ultra vires many laws passed by the ian Parliament and the state legislatures. . ine courts issue injunctions in certain cases and thereby help in checking the harm or mischief that might have resulted otherwise. An injunction of acourt may order the government, a local body or a private individual, to desist from doing something, By issuing a writ of mandamus, the court may order the government to do a particular thing which the law of the country requires it to do. By a writ of habeas corpus, the court may order the release of a person who is illegally detained. By a writ of certiorari, the court may strike off an order passed by any official of the government, a local body or astatutory body. Other similar writs and directions can be issued by a competent court to give relief in certain matters, In certain cases, receivers are appointed by the courts to take charge of the property in dispute. In cases of bankruptcy or insolvency, the courts play. an important part. The courts also appoint guardians of the person and property of the minors. Sometimes, the property of a minor may be taken over by a Court of Wards. In certain cases, the advice of the court is sought by the government. The Government of India has the power to refer a particular point to the Supreme Court of India for its opinion. A similar function was performed by the Federal Court of India. The Judicial Committee of the Privy Council advises the government on many matters. Chief Justice Taft observes thus about the functions of the judiciary: “But the judiciary are not representative in any such sense whether appointed or elected. The ‘moment they assume their duties they must enforce the law as they find out. They must not only interpret or enforce valid enactments of the legislature according to its intention, but when the legislature in its enactments has transgressed the limitations set upon its powers in the constitution, the judicial branch of government must enforce the fundamental and higher law by annulling and declaring invalid the offending legislative enactment. Then, the judges are to decide between individuals on principles of right and justice. The great body of the law is unwritten, determined by precedent, and founded on eternal principles of right and morality. Thus. the courts have to declare and enforce. As between the individual and the State. as between the majority and the minority, as between the powerful and the weak. financially, socially, courts must hold an even hand and give judgment without fear or favour. In so doing they are performing a governmental function, but it is a complete misunderstanding of our form of government or any kind of government that exalts justice and rightousness to assume that judges are bound to follow the will of the majority of an electorate in respect of the issue of their decision.” Independence of the Judiciary __ In every modern state, there has been a constant ‘struggle to achieve the independence of the judiciary. This is due to the feeling that the protection of the rights of the individual citizens requires a government based on laws applied by Judges who are independent in every way. The necessity of an independent judiciary hhas become all the more great on account of a change in the nature of the functions. to be performed by the state. We no longer believe in a police state. We believe and act upon the principle of a welfare state. The result is that the functions of the state Scanned with CamScannerone eee 559 have multiplied and the courts. The num| challenged is multi thousands of such mat S appointment of the juq Or this reason that it is contended that the between a Governmentanr et Not be in the hands of the Government. In a case control of the Government and if he judge must be one who is not under the that is not done and the exe ¢ Must not be appointed by the Government. If appoint those who will deca, owed to appoint the judges, it is likely to man can have no faith that he aan inits favour and consequently the common Government. Moreover, once a jud ei aponcat om 2 judge nominated by the rule must be applied because oreo S appointed, itis necessary that the seniority of the Government is likely tose at judge who decides the cases in ne Govern! often rn oA and appointed a Chief Justice of India who was aeceptatie tit “The defence giv by the Government }o was acceptable to it. The defence given : iment was that the new Chief Justice appointed by it was the only Judge who decided in favour of the Government in the Bank Nationalisation case while the other judges gave their decision against her. It was also contended by the Government that it had to take into consideration the “social philosophy” of the judges while appointing a Chief Justice, However, the theory of “committed Judges” is foreign to democratic society and is the negation of the independence of the judiciary. conse ber ofwrit neat State nas oecome the biggest litigant before lying every dag ain Which the orders of the Government are applications 'Y and the judges are required to dispose of acitizen, cutive is a le the cases thi A similar thing was done by the Government of India in May 1974, While appointing a successor to Chief Justice D.K. Mahajan of the High Court of Punjab and Haryana, the Government of India superseded Mr. Justice P.C. Pandit who at that time was the senior-most judge of the High Court and appointed. Mr. Justice R.S. Narula who was very junior to him. No reason was given by the Government in support of its arbitrary action and the only conclusion is that the Government of India did not want Mr. Justice Pandit to occupy the position of the Chief Justice. That is going to havea very unfortunate effect on the independence of the judiciary. The Government is bent upon having “pliable” judges who are willing to do whatever the Government wants them to do. In future the prospective judges or Chief Justice will have to find political backing for their appointment and their merits will be only a secondary consideration. : In England, the Court ot Star Chamber operated specifically to carry out the orders of the King. Henry VIII used the Court of Star Chamber to dispose of his enemies and his discarded wives, Even today, high-handed or oppressive judicial action is referred to as Star Chamber proceedings. Such judicial proceedings have continued to the present day in autocratic regimes. One of the great reforms of the Glorious Revolution of 1688 was the Act of Settlement which was passed in 1701 and which provided that judges should hold office for life during good behaviour. So long as they performed their duties efficiently and honestly, they were to fear none. They could not be dismissed nor could their salaries be reduced. They cauld be removed only if a joint address was presented by both Houses of Parliament. ‘The subordinate judges could be removed by Lord Chancellor, but the convention. is that nobody has been turned out during the last two centuries. Inthe United States, an attempt was made by President Franklin D. Roosevelt to pack the Supreme Court in order to get a court more favourable to New Deal Legislation. . a ‘There are many factors which help to ensure the independence of the judiciary. One of them is the method of their appointment. In some states of America, the Scanned with CamScannerPolitical Theory 560 7 f Switzerland, the judges judges are elected by the people. In so noel se he subordinate judges are elected are elected by the people. In the Soviet Union, aa ies Faieh The People by the people. Experience shows that this system 1s ares ‘a good judge. While a j is usually of a quiet temper: a sys aia pe talkative. A quiet man will not be able to carry the polls Tnnumerabie examplescan be quoted from the United States to show that good candace Wet defeated and worthless ones were successful. If a judge secks eee ese : ie x fe must give those judgments which make him popular. He will nat ot a eH the dictates of his conscience but he will act with an eye on his re-el ee er give a judgment which is likely to alienate the voters. He has to say go ‘ ye foal canons of justice. It is possible that such a judge may be quite ignorant ier implications of the law of the country. As he is elected mot because of his legal knowledge but because of his canvassing and influence, he may prove to be a buffoon in the court room. It must be a pitiable sight to see a judge who does not know the law but before whom eminent lawyers argue their cases. Much cannot be expected under such circumstances. Candidates for judicial office make poor judges. They cannot put before the electorate any programme which they will carry out if they are elected. The result is that politicians become judges and their entire outlook is partisan and hence there can be no independence of the judiciary in such acase. Prof. Laski says, “Of all the methods of appointment, that of election by the people at large is without exception the worst.” About the system of election of judges by the people, Garner says, “It lowers the character of the judiciary, tends to make a politician of the judge and subjects the judicial mind to a strain which it is not always able to resist.” Another writer observes, “The desire to court popularity is a temptation few will be able to resist when their reelection is dependent on their popularity.” In Switzerland the judges are elected for six years by the two federal chambers sitting together. The system has worked well in that country because of the small size of the legislature and also because judges are ordinarily re-elected again and again and that makes their tenure of office practically permanent. However, the system of election by the legislature is not satisfactory. Laski says, “If the choice is, to be made on grounds of legal fitness the average member of a legislature has no special qualifications for judging and he is therefore likely to be swayed by political considerations irrelevant to the problem.” Moreover, “Such party election encourages a type of judge far removed from the ideal of fairness and reasonableness which judicial decision demands.” Such a system is also against the spirit of separation of powers. The persons who make the laws should not have a hand in the appointment of those who have to interpret them. The view of Prof. Laski is that the system of appointment by the executive is “the best available method of choice.” However, Laski does not consider simple nomination by the executive as an adequate system. His suggestion is that all judicial ‘appointments should be made “on the recommendation of the Minister of Justice, with the consent of a standing committee of the judges which would represent all sides of their work.” This method will ensure that only those persons are appointed who possess the requisite qualifications. In India, the higher juiciary is generally selected from the practising lawyers. The same is the case in ngland, Canada, Australia, etc. ents Unies States, the federal judges are appointed by the President with the See aeecone and can be removed only by impeachment, In France, inations are held under the control of the Minister of Justice for Scanned with CamScannerJudiciar\ The Ie 561 ‘uitment: pury rior aiid We NeAKe ee so selected are promoted on the basis of only the Court of Cessation a a legislature nor the executive can remove them. It is remove a judge in France. | ing through a Committee of seven judges. that can . This provision is sufficient safeguard to protect them. The system of appointment by th c 0 Poteet, The 2eenitivemay male apnsittna iene executive has one great defect. rade all appointments fi ents from its own party. It issaid that Lord Halsbury a r rom his own party. ___ The tenure of judges is an important factor on which the independence of the judiciary depends. If the judges are appointed for short terms, much of their independence is gone because they are always thinking of their reappointment and naturally they would not like to do anything which is going to annoy those in whose hands their reappointment lies. That is the reason why the Act of Settlement provided that the judges were to hold office for life during good behaviour. So long as they continue to perform their duties efficiently and honestly, they were to fear none. They could neither be dismissed nor their ‘salaries reduced. They could be removed only if a joint address was presented by both Houses of Parliament and that is rarely done. A similar system prevails in India, Judges of the Supreme Court, once appointed, continue to hold office till they reach the age of 65. Inthe case of judges of the High Courts, the age of retirement is 62. and the judges belonging to the subordinate judiciary retire at 58. However, this does not mean that judges cannot be removed at all. Ifa judge becomes thoroughlky incompetent or unfit to perform his duties on account of the loss of mental faculties or physical unfitness, he can be removed from office. Such a thing was done in the case of Mr. Justice Imam of the Supreme Court of India, on account of his physical unfitness Experience shows that such things are rare and judges continue to hold office during good behaviour. Hamilton says, “The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the prince; in a Republic tis no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any Government to secure a sturdy, upright and impartial administration of the laws.” In order to make the judges independent, they must be paid fixed and adequate salaries. The reason is that a judge, to be honest and upright, must be above want, If he cannot make his both ends meet, there is every possibility of his becoming corrupt. That is what actually happened in the case of Lord Bacon who was the Lord Chancellor of England. Judges must be paid handsomely so that the best brains are attracted to this line and while in office, they are able to discharge their duties in an upright manner. Moreover, we should not allow them to suffer from a sense of inferiority arising out of the fact that while they are getting so little, the lawyers practising before them are earning a lot. That is the reason why the judges in England are knighted as soon as they are appointed. In addition to salaries, their other conditions of service should be favourable so that they have in peace and without any worry. They should be paid adequate ment or retirement compensation. Hamilton says, “In the general nature, a power over a man’s subsistence amounts to a power over enough to work pension on retire course of human his will.” ‘While appointing judges, we must see that only those persons are appointed as judges, who are highly qualified in the field of law. That is partly due to the fact that very often the lawyers practising before them are brilliant people and if the judges Scanned with CamScannerov. Political Theory . " are not so, they are likely to cut a sorry figure. They cannot be expected to command any respect. ‘Another essential thing for should be a separation of judicia the Directive Principles of State P the executive functions, In India, © of the judiciary is that there he executive functions. One of ‘on of judicial functions from here has been an intermingling of the executive and the judicial functions. The Deputy Commissioner or the Collector who is the head of the District administration has also been the District Magistrate. Till recently, all the magistrates in the District were under him. That was not at all reer ple rom the point of view of the independence of the judiciary but the system was allowed to continue as it suited the English rulers in India. Sir Harvey Adamson, at one time Home Member in the Government of India, pointed out that “the exercise of executive control over the subordinate magistrates by whom the great bulk of criminal cases are tried is the point where the present system is Sefective. If the control is exercised by the officer who is responsible for the peace of the district, there is the constant danger that the subordinate magistray may be unconsciously guided by other than purely judicial considerations.” Itis happy to find that the process of the separation of judicial functions from the executive has made progress in many states and judicial magistrates have been appointed who are directly under the control of the High Court. ‘About the independence of the judiciary Professor Willoughby observes thys:. “Judges should be selected without regard to their political affiliations. Once selected, they shall hold office for a long term, for life or during good behaviour. They shall not be subject to dismissal by the executive, may be removed only for misconduct as established by a formal process of impeachment or address on the part of both Houses of Legislature. Their compensation shall not be withheld or diminished during their term of office.” the independenc I functions from olicy is the separati Relation between Judiciary and Legislature It goes without saying that the judiciary must be kept away from party politics. To the extent to which that is done, the independence of the judiciary is maintained. Consequently, it is contended that the legislature should not have the power to elect judges. Moreover, no member of a legislature should be eligible for a judicial office. However the legislature may be given the power of recommending the removal of judges either by the presentation of an address to the executive, as is the case in England, or by means of impeachment, as in the United States. This power is necessary to provide against those judges who may abuse their power and receive presents or bribes. Moreover, ina unitary government like that of Great Britain and France, the judiciary need not be given the power to question the validity of the Jaws passed by the legislature. However, such a power is necessary in the case of federal governments. The reason is that the law of the country is founded in a written constitution and it is necessary that the courts should be given the power to decide whether a particular law passéd by the legislature is intra vires or ultra vires the constitution or otherwise unconstitutional or invalid. In McCulloch v. Maryland, the Supreme Court of America upheld in 1819 the right of the Congress to establish the United States Bank even though the power to create banks is not specifically conferred by the Constitution. Instead, the Constitution provided the Congress with other powers from which it was Feasonable to imply the power to establish the bank, Thus was born the doctrine of implied powers which has been useful to the Congress and the Supreme Court in making the Constitution applicable to the changing conditions. Scanned with CamScanner566 Political Theory Rule of Law . , ‘The rule of law is one of the unique characteristics of the English Constitution, Bluntly put, it means that it is the law of England that rules the country and not the arbitrary will of any individual. The law is supreme over all; none can claim exemption or immunity from it. According to Dicey, the rule of law embraces three “distinct though kindred conceptions.” Inthe first place, it means that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. This means that no person can be punished in England unless and until it is definitely proved that he has violated some definite law of the country. If a person cannot be held guilty of violating a particular law of the country, he must be set at liberty, There can be neither any illegal imprisonment nor illegal punishment. If a person has been imprisoned without any authority of law, an application can be made for a writ of habe- as corpus and if the detaining authority cannot put forward a legal plea in its defence, the person has to be discharged. The executive has no authority to put a person behind the bars arbitrarily. Secondly, the rule of law means that, “no man is above law but that every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of ordinary tribunal. What is law-- legal rights and legal obligations—for one man must hold equally as such for all citizens.” This means that Whatever the status of a person, he must submit to the ordinary law of the country and ordinary courts of the country, There are no separate courts and separate law for the trial of government servanis in England, although there are in France. They have to be tried by the same law by which an ordinary citizen is tried. Moreover, no person can plead immunity from obedience to the law of the land. In the third place, the rule of law means that “the general principles of the Constitution are the result of judicial decisions détermining the'rights of private persons in particular cases brought before the courts.” This refers to the important parts played by the English judges in safeguarding the rights and liberties of Englishmen, Dicey was a Liberal of the 19th century and as such, paid a tribute to the Liberal judges who had played an important part in safeguarding the rights and liberties of Englishmen in the past. Dicey put great emphasis on the rule of law in England. He glorified in the fact that the rule of law established the equality of all citizens before the courtsof law. “Every official from the Prime Minister to a constable or collector of taxes is under the same responsibility for every act done without legal justification, as any other en,” Moreover, there was no scope for any arbitrary detention or punishment. The law must have its own course. Dicey pointed out that the rule of law had a healthy effect on the arbitrary tendincies of government servants. No government official could dare to put an Englishman behind bars without legal justification. He knew that if it was found that his action was illegal, he was liable to be burdened with damages. Moreover, while carrying out the orders of their superiors, the government servants were always to keep in mind the fact that they must not go against the law of the country. Ifa soldier was ordered to disperse a mob, he was not to kill persons unnecessarily. He was merely to disperse the mob without causing injuries to the people. He was always to keep in mind the fact that if he killed any person, he was liable to be tried for murder and punished if found guilty. This fact was bound to have a healthy check on the actions of the government servants. Indirectly, it was conducive to the liberties of the Englishmen. Scanned with CamScannerThe Judiciary ra Critics Point out that the rule of law which was so highly praised by Dicey is not to be found in England today. It is being violated in ve respects. The Public Authorities Protection Act, 1893 #i ial protection to offic Proceeding! againatet ct, 1893 gives special protection to officials. they be igainst them must be Started within 6 months and if that is not done, icy become time-barred. Moreover, if proceedings against a Government servant fail, the plaintiff has to pay very heavy costs. The object of this provision is to dlicourage Private individuals from starting proceedings ‘against Government The Home Secretary has an absolute discretion to grant certificates of naturalisation as British subject. He can cancel the certificate at any time he likes. He has full discretion in the matter of deporting any undesirable alien. For all these acts, he cannot be challenged in a court of law. The Crown has the power to grant or refuse passports to travel in any foreign country and the exercise of this power cannot be challenged in any court. Foreign rulers and diplomats enjoy immunity before courts of law and they cannot be tried even if they violate any law of the country. No action lies against trading vessels belonging to a foreign state. No suit can be filed against a trade union for any act committed by its officers or members in furtherance of bonafide trade dispute, Lord Chamberlain has the power to censor the plays and if he imposes ban, the same cannot be challenged in any court of law. The power of the Home Secretary to open and detain letters is a violation of the rule of law. Judges cannot be held responsible for things done by them in the official course of their business. However, if a vacation judge unlawfully refuses a writ of habeas corpus, he can be sued and a penalty up to £500 can be imposed. The Crown can terminate any contract of service. It is not bound even by the express terms in acontract. The result is that the servants of the Crown hold their offices during the pleasure of the Crown Formerly, peers could be tried only by peers. However, this privilege was taken away by the Law Reform Act of 1947. The Public Order Act of 1936 gives the police the power to regulate or prohibit public meetings and processions. It can also declare drilling and wearing of unauthorised uniforms as illegal. The Customs Consolidation Act, 1866 and Inland Revenue Act, 1890 give protection to customs and excise officials regarding anything done by them in the performance of their official duties. Until 1947, the Crown was not liable for the tortuous acts of its servants and was liable only to a limited extent in contract, though the actual tortfeasor could be sued and the Crown often stood behind him and paid the damages awarded against him. Action in contract could only be started by a complicated procedure known as a Petition of Right, with the consent of the Crown given on the advice of the Attorney General. The Crown Proceedings Act, 1947 and the Rules of the Supreme Court (Crown Proceedings) Act, 1947 came into force on I January 1948, The effect of this legislation is to place the Crown as regards civil proceedings in the same position as a subject. Proceedings by Petitions of Rights were abolished and now all claims can be brought by ordinary action in accordance with the Act. The Crown is liable in contract and also in tort but there are certain exceptions. Regarding contractual claims, civil servants cannot sue the Crown for wrongful dismissal or arrears of pay. Action in tort lies against the Crown for the torts agaiust civil servants or agents committed in the course of their employment, for breaches of duty owed at common law by an employer to his servants, for breach of duty attaching to the ownership, occupation, possession or control of property and for breach of statutory duties. No proceddings lie against the Crown in tort for acts Scanned with CamScanneraH Political Theory done in private capacity. The law as to indemnity and contribution under the Law Reform (Married Women and Tortfeasors) Act, 1935 applies to Crown cases. If the Crown is a joint tortfeasor, it can claim a contribution from fellow wrong-doers and where the Crown is led to publishing a libel, it may claim indemnity against the party responsible. No action lies in torts against the Crown for anything done or omitted to be done in relation to any postal packet or telephone communication, except that an action will lic for damages for loss of a registered inland postal packet not being a telegram. Such action must be brought within 12 months of the date of the posting of the packet. Both the Crown and any member of the Armed Forces, are immune from liability in tort in respect of the death of or personal injury to another member of the Armed Forces on duty. While acitizen is subject only to the ordinary law, he can be subject also to the special law affecting his particular profession. That special law may be enforced by special tribunals. The Armed Forces are subject to military law or naval law in addition to the ordinary law of the land and offences against that law are triable by court-martial. Likewise, the clergy are subject to ecclesiastical law enforced by the ecclesiastical courts. Solicitors are subject to the disciplinary powers of astatutory body composed of the members of the profession with aright of appeal inthe High Court. The members of the medical profession are tried by the General Medical Council for professional misconduct. Similar powers are exercised by the General Dental Council over the dentists. There are many special courts for the decision of issues which affect the proprietory right of citizens. Special tribunals appointed by ministers decide questions of insurability. They also decide the amount of compensation to be paid for the compulsory acquisition of the land. If a minister interested in carrying out a policy is allowed to give decision on a judicial issue, his action is against the rule of law. ‘According to Wade a Phillips, “The rule of law remains a principle of our constitution. It means the absence of arbitrary power ; effective control of and people publicity for delegeted legislation, particularly when it imposes penalties; that when discretionary power is granted the manner in which it is to be exercised should as far as is practicable be defined ; that every man should be responsible to the ordinary law whether he be private citizen or public officer; that private rights should be etermined by impartial and independent tribunals and that fundamental private rights are safegurded by the ordinary law of the land. If this be accepted, it is only necessary to contrast the state of affairs in the totalitarian States, with their zppsretus of seceret police and people's courts administering not law, but the orders of those who can dictate what is the people’s will, in order to answer affirmatively the question—does the rule of law today remain a principle of the Constitution? This does not mean that it is a fixed ‘principle of law from which there can be no departure. Since Parliament is supreme, there is no legal sanction to prevent the enactment of # statute Which violates the principle of the rule of law The ultimate safeguard then is (0 be found in the acceptance of the principle as & guide to conduct by any political party which is in a position to influence the course of legislation” Administrative Law b The term administrative law or Droit Administratif has been variously defined y different writers. Barthelemy says that it “consists of all the legal rules governing {he relations of the public administrative bodies to one other and to individual rofessor Rene David defines it “as the body of rules which determine the Scanned with CamScanner558 been questione’ units of a federation now their respective regional governmen constitutent units separate represe! minorities get better protec! doubtful representation through Tris algo argued that iegislation passed by hasty nor ill-considered. Almost every m ofa long process of discussion and analysi d the opinions expressed in the press and takes its cue, while making laws, from t 1 here is no need to give unnecessary on the platform. Such being the case, t g. Ibis maintained that t vote on part) tion from constitutiona second chambers. ¢ representatives of the cons y lines rather than as representatives of s. There is, ‘on through second chambers. And the Principles of Political Science ituent h, no use giving the safeguards than from neither a single chamber i: reasure that becomes Jaw is the result In fact, every modern legislature duplication to deliberation and delay the much-needed legislation. Noris there any truth in the assertion that bicameral system prevents legislative despotism. There are many other safeguards, like the suspensive veto of the executive, and a second vote in the same chamber after some interval, against the so-called despotism of a single chamber. Finally, double chamber system, work, leads to delay in action and is an exchequer. Laski and many other writel chamber assembly seems best to answer its opponents maintain, duplicates unnecessary burden on the national rs, therefore, conclude that a single the needs of the modern State. Here is a resume of the comparative advantages of unicameralism and bicameralism: For Unicameralism A Single House: 1. Permits speedy action. 2. Avoids obstruction of the will of the people. 3. Permits clarity of responsibility of the Cabinet in a Parliamentary system of government. 4. Reduces duplication and confusion of responsibility relating to legislation 5. Adds to the quality and prestige of the legislators through absence of conflict. 6. Is less expensive and e speedy transaction of busine: res, For Bicameralism Two Houses: Provide a check on hasty and ill-considered legislation. Avoid, despotism of a single chamber. Help public opinion to crystallise by interposing delay. Reflect the popular will at all times and there is no time lag. Help divide the work load. Allow different class representation to s and groups. Account for their necessity in a federation. Protect individual freedom against legislative despotism. Scanned with CamScannerPrinciples of Political Science 630 inter-relation of the judiciary and the legislature can best be found i oT ru c-made law. Judges not ‘only interpret law, but they also in case-law or ire case before a court for decision is not covered by law etek duty of judges not to determine what the legislature meant, but so guess what it would have intended on a point not present, if the point had been present.”” In this way, judges legislate to fill up the casus omisus or the cases of omission, Judges also create a law for the particular case in Setermining the exact meaning of law, expanding its details and applying the general principles of justice or morality. In Britain, India and the United States, judicial decisions are cited as precedents and are considered binding in subsequent cases on the principle of stare decisis. Judge-made law, thus, forms a large part of the system of jurisprudence. In countries where codes based on Roman Law are used, as in France, precedents are not con- sidered binding. THE RULE OF LAW Meaning of the Rule of Law. The “‘rule of law”’ is recognised as one of the very important characteristics of the British Constitution. It means that in Britain the ordinary law should be everywhere supreme, and every person is subject to the ordinary law courts. There is nothing which may be characterised as arbitrary power. Every action of the government must be authorised by law, either by law passed by Parliament, or by the ancient principles of Common Law which have been recognised for many hundred years. The test is that all actions of government can be appealed against in the ordinary law courts. This remains the general rule, though in recent years there have been encroachments upon it and they have excited some alarm. The “‘rule of law”’ is the product of centuries of struggle of the people for the recognition of their inherent rights. In Britain the Constitution does not confer specific rights on the citizens, Nor is there any Parliamentary Act which lays down the Fundamental Rights. Yet, the people enjoy maximum liberty and judiciary is their unfailing guardian, because there exists “the rule of law. The government have power only to carry out the law, not todo whatever they think fit. The Latin tag salus populi suprema lex—the welfare of the eee Pea ewaenae be used by the government as an excuse Anything dene by eu lea of the public interest without regard to legality. Ronee ne by vernment officials either beyond law or in excess of law ubject to y courts. The ordinary law of the land is of universal oe ae there are no divisions of sep: systems of Law, fori cere nae eee ordinary citizens, The maxim caries witht protection of the rights of the orient law will be sufficient for the effective and security al individuals alike ands. therein i ee ces liberty and discrimination of any kind, Tt ac . therefore, antithetic to arbitrariness same law is - accepts all men as alike before law and the applicable to all i ; ren as i really the essence of den iesPective of their station in life. Rule of law is . oC ; prevails. racy. Democary subsists where Rule of Law Scanned with CamScannerThe Judiciary Dicey’s Analysis. The concept “ : 7 eption of the «, classical formulation more than e “tule of law” ‘ crooning to Dee eet scenty 880 by A.V. Dicey. The “nna ven ‘ee mean’ tule of law”, the law alone; a man May, wi 1 ys is, ra breach of the la cant aed for nothing else.”" It means that the executive has wating 7 Powers over the individual; no Powers that had not been sanctioned either by Parliament or by the Common Law. It i din sanction is the consent of the People. This principle implies that no itraril i ; Person may be arbitrarily deprived of life, liberty, or Property; no one may be arrested or detained except for a definite breach of law which must be proved i ith us, be punished fo, oppression. 2. “It means, again, equality before the law, or the equal subjection of all Classes to the ordinary law of the land administered by the ordinary law Coutts.” It means that everyone is subject to the ordinary law of the realy and can have his rights determined in the ordinary courts, There are two implications init First, equality of every citizen, irrespec- tive of his official or social status, before law. Secondly, there is one kind of law to which all citizens are amenable. All Public officials, high or low, are under the same responsibility for every act done by them. If public officials do any wrong to an individual or exceed the power vested in them by law, they can be sued in the ordinary courts and tried in the ordinary manner, and are Subject to the provisions of ordinary law. The equality of ali in the eyes of law minimises the tyranny and irresponsibility of the executive. Dicey, while elaborating the equality of all before the law says, ‘with us every official, from the Prime Minister to a constable or a collector of taxes, is under the same responsibility for every Act done without legal justification as any other citizen.”* The general legal theory holds that an executive official is privately liable whenever he oversteps the precise authority which the law assigns him 3. “The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of the constitutional code, are not the sources, but the consequences of the rights of individuals, as defined and enforced by the courts,....It means the main principles of the constitution, such as the right of personal liberty or of public meeting, have been set up on the foundation of the old common law and not as thing derived from any general constitutional theory." Rights in Britain do not flow from the constitution, but from judicial decisions, as in the famous Wilkes’ case. Scanned with CamScanner