Legislature

Political Science I
III Trimester
Feb to April 2020
 Introduction
• Word legislature is a generic term meaning a body that
legislates. This body has different names in different countries
like in the UK and India it is called parliament, in the USA it is
called Congress, Diet in Japan, Knesset in Israel. The origin of
modern parliament happened in the UK which has Westminster
model.
• The word ‘parliament’ means ‘parley’ a French word that means
‘talk’. The word ‘congress’ means ‘a meeting, encounter, a
gathering’.
• Historically, legislatures had their birth in the executive’s need
for advice and counsel which was seized by the British
parliament to limit the functions of the executive
• Law making antedates legislatures: man had a body of laws
before he had, or even could conceive of, a legislature such as
customary laws.
• Yet a legislature can not be defined except in terms of legislation.
It is a branch of government which makes, amends and repeals
the laws for a society, and its legitimacy to enact laws stems from
its representative character, in the sense that wherever it exists it
represents, or is expected to represent the people. It is, therefore
elected by the people at large in democratic political systems.
• The point to be remembered is that the legislature accords
legitimacy to a political system by passing the laws including the
budget, and this legitimacy flows from its representative
character
• Today it is nearly universal institution and it is this body that
determines the legitimacy of a political system.
• The legislature may be said to have the British Parliament as its
mother. The Parliament in Britain was born during the reign of
William, Duke of Normandy. When he conquered England in the year
1066 he established, among others, Curia Regis Magnus, a great
council which met three times a year to give counsel and present
petitions. Knights came to the great council in 1213 and that body
became much more ‘representative’ of the population in model
Parliament of Edward I in 1295.
• The first phase ended with the death of Queen Elizabeth. In second
phase the parliament challenged the royal hegemony. In third phase
started from 1721 with the appointment of Sir Robert Walpole as
prime minister and this signified emergence of parliament as the
supreme body, the monarch have become the nominal head.
• Legislature is ordinarily associated with democracy. It
is true that it is an integral part of a democratic
political system, but it exists even in most
authoritarian systems. The communist systems also
have endowed themselves with legislatures.
• In some political system they are effective in some
they are ornamental.
• In some systems who follow direct democracy process
of the law making is done by the government and the
people through initiative; referendum and plebiscite.
 Kinds of Legislature
• It can be unicameral or bicameral.
• Bicameral legislature have two legislative chambers and they are
differently organized. The lower house generally is popular house and
elected by people themselves and representation is on the basis of
population and universal adult franchise.
• The upper house is also known as second chamber usually represent
interest in community or the states in federation and is usually not
directly elected. The British House of Lords is a hereditary chamber
and possess larger number than house of Commons.
• The Senate in US has 100 members 2 from 50 states and have been
directly elected since 1913. It is a continuous body each member has
6 year term with one third member retiring every 2 years. It is one of
the strongest upper chamber in the world.
• Indian parliament has 2 chambers –lower house is Lok Sabha (the
house of people) directly elected by universal adult franchise on the
basis of constituencies created on the number of population. There
are 545 seats in lower house ; and upper house –Rajya Sabha (Council
of states) . Maximum number for council of states is 250 of which 12
are nominated by the president on the basis of their distinction in
society in different fields like art, literature, science, social service etc.
the rest are indirectly elected by the state legislative assemblies
under a system of proportional representation. the seats are
distributed according to the Fourth Schedule of the Indian
constitution. It is continuous chamber whose members are elected
for 6 years, one third of which retiring every two years.
• It is generally considered a chamber that maintains balance on the
working of the lower house on the basis of maturity and experience
of its members.
 Functions of legislature
• The functions and role of the legislature must be examined
with reference to the political system of which it is a part.
• The legislature in parliamentary form of government has a
role which is different from presidential form of
government. Even the parliamentary systems does not
envisage a single pattern of role and relationship between
the legislature and executive. In Britain and India ministers
are drawn from the legislature, but in France and Norway
and the Netherlands they are prohibited from being
members of parliament. In these countries even if a
minister hold a seat in the parliament he/she can not vote.
• Similarly the well known parliamentary
devices of question hour, adjournment
motions etc do not find place in the west
European parliaments.
• The functions and role of the legislature are
also determined by the kind of party system,
mode of representation etc. which operates in
a country.
• The dominance of the communist party in
China.
• The legislature, thus, doe not have the same status, powers
and functions in all political systems. Like the Congress in U
S A stands at one end of the spectrum. It depends upon the
nature of political system.
• Law Making-
• The term ‘legislature’ signifies that this body is made
responsible for making of law in the country. But enactment
of legislation is not the only function of a modern legislature.
Nor it has monopoly over law making. A legislature performs
several functions with varying degree of intensity. Walter
Bagehot once described the functions of the House of
Commons as elective (maintaining the government),
expressive, teaching, informing and legislating functions.
• R A Packenham lists the following twelve functions which a modern
legislature performs-
1.Latent legitimization
2. Manifest legitimization
3. Tension release
4. Recruitment
5. Socialization
6. Training
7. Law making
8. Exiting
9. Interest articulation
10. Administrative oversight
11. Patronage
12. Errand running
 Legislation
• Legislature legislates meaning act as a law factory. It treats public opinion
as the raw materials which it processes into statutes, resolutions and
public policies. In the wake of demands of people legislature has to pass
more and more laws to fulfill the expectations of the people. Even
otherwise laws are necessary for to react to the situations created by the
industrial,, scientific and technological advancements.
• Indian parliament has enacted more than 2000 laws till present out of
which 1877 were identified to be to be repealed. 1428 were repealed
between 2014-2019.
• But in modern period work load of the legislature is lightened by the fact
that most of the bill passed by it are introduced by the executive. The
legislature has generally got converted into a ratifying body in modern
circumstances.
• It is very difficult to think that a private member bill can be passed
without support of the executive. The story is the same in other
countries.
• Law Making today requires sophisticated knowledge of the subject under
issue which the executive alone possesses. Even the drafting of the law is
a highly technical task which only experts can perform. What is more, the
legislature passes laws in broad general terms, delegating power to make
rules and regulations under them to the executive. Delegated legislation
is today an important part of legislation. Besides executive is empowered
to ssue ordinances which have the same force as laws though they
command a time bound validity.
• An interesting observation was made by John Stuart Mill about legislature
according to him the legislature was not an appropriate body to make
laws, it was singularly ill equipped for the task which should better be
undertaken by the experts in the executive branch of the government.
• Another important fact about law making power of the
legislature is that a bill becomes law only after getting
assent of the executive.
• Like in the Uk the royal assent is a constitutional formality,
the same in India assent of the President of India is
constitutional formality though the president enjoys limited
veto power –meaning the president can send back a bill
passed by the parliament for reconsideration but if the bill is
passed for the second time by the legislature with or
without amendment the president has to give assent. In the
USA the president can exercise veto power but it can be set
aside by the congress by passing the bill by two third
majority in each of its two houses.
• Notwithstanding these limitations, the fact
that the legislature claims an undisputed
superiority over all these sharing this power
with it, and this claim is universally accepted.
• As K C Wheare says “the last word about what
the law is to be rests with the assembly”.
• Norman Meller says “it is principally through
the enactment of statutes that the modern
legislature has derived its saliency”.
 2. Constituent function
• The legislature is the only branch of the government which is
authorized to amend the country’s constitution although the
extent of the legislative power in this respect and modality of
its exercise are determined by the country’s constitution. In
India certain provisions of the constitution can be amended by
the Parliament by simple majority- as in the case of ordinary
legislation-while many others may be amended by the two
third majority. Like seventh schedule giving lists of the
subjects, the general principles relating to the executive
power, the procedure for the election of the president etc
require two third majority support in Parliament and approval
of majority of states.
• Parliament is directly associated with the amending
process of the constitution although according to a
judgment of the Supreme Court of India it can not alter
the ‘basic structure of the constitution’.
• In the US A the congress initiates amendment of the
constitution which when passed by it by two third
majority vote is required to be ratified by three fourth
of the states .
• In UK where there is no written constitution the
parliament can restructure and recast its ‘constitution’
by ordinary legislation.
• So legislature play leading role every where.
 3. Control over Executive
• One of the most important function. According to John
Stuart Mill “… the proper office of a representative
assembly is to watch and control government; to throw
the light of publicity on its acts; to compel a full
exposition and justification of all of them which anyone
considers questionable; to ensure them if found
condemnable; and if the men who compose the
government abuse their trust, or fulfill it in a manner
which conflicts with the deliberate sense of the nation,
to expel them from office, and either expressly or
virtually appoint their successor”.
• In India the legislature seeks to keep the government under its
control through parliamentary questions, adjournment motions, no
confidence motions etc. The parliament passes the annual budget,
that gives it an extended opportunity to criticize and control the
executive.
• The parliamentary system of government keeps the executive
continually accountable to the legislature. (technically) though
practically executive seem to dominate the legislature due to the
emergence of the party system. The majority of ruling party
weakens the control of legislature over executive.
• In US in presidential system the Congress seem to be much more
effective in controlling executive. Due to the doctrine of the
separation of power passing the budget; and approving and ratifying
the key appointments made by the president gives edge to upper
house that is senate.
 4. Moulding Public Opinion
• A member of parliament gets an opportunity to give a speech in
the house which is not necessarily to impress the members of
the house but to reach a larger audience that is public.
Whatever he/she says and does get recorded and printed, and
thus become part of parliamentary proceedings which are then
read and referred to by others. In modern era the proceedings
of the house are getting telecast and media also publicize them.
All this makes impact on the mind of people.
• A legislature thus has an important function in a democracy; it
lets the executive know what people feel and ink about matters
under discussion, and it is also opinion builder in a society. This
an educative and socializing function of the modern legislature
• John Stuart Mill called legislature “Congress of
Opinions”.
• By communicating the popular aspirations to
the executive the legislature links the
governed with the government.
 5. Judicial Function
• Impeachment of the judges and the president
 Decline of Legislature
• It was Lord James Bryce who first referred to the
‘decline of legislatures’ in his celebrated work Modern
Democracies in 1921.
• A steep increase in the functions of the executive due
to changing and fast growing circumstances in the area
of geopolitical considerations and scientific and
technological advances. Icker responses are required
and that is why the present state is rightly called as “
Administrative state”.
• Expertise of executive ; party system further weakens it.