How to Prepare for this topic?
Parliamentary system is so full of problems. Though it was the best template that the Constitutional founders could adopt, with time certain shortcomings of Parliament as an institution started emerging.Issues such as Ineffective control over the Executive, under representation of Women and Minorities,the problem of Privileged treatment of the Members of Parliament are both structural as well as functional in Nature.
UPSC questions in the previous years related to this topic seems to focus on these problematic aspects of the Parliamentary Form of Government.The write up covers certain important areas that are ever present and continue as the issues of concern.
In addition to this other aspects that can be given due consideration from the point of Main Examination are:-
- Issues with respect to the nature of Representation in Parliament?-The Kind of Legislators who win elections and enter into the Parliament, Women representation and minority representation.
- The Increasing Control of the Executive over the Legislature due to the party system of Politics that has emerged with time. The impact of Anti- Defection law in weakening the concept of Executive Responsibility to the Legislature.
- Diminishing importance of Private members in the present days. This is evident from the minuscule number of Private Member’s Legislations enacted in the Parliament.
Why did the Constitution makers prefer a “Parliamentary form” of Government?
The framers of the Indian Constitution were heavily influenced by the Political Background of India and the practise and traditions evolved during the British Rule. Hence, right from the initial stages of discussions on the broad principles of the new constitution, the opinion was overwhelmingly in favour of adopting the Parliamentary form of Government.
The fundamental reason for the makers of the Constitution to prefer a “Parliamentary form” of government would have been to establish a system based on high standards of executive responsibility to the Legislature.
While in England, the executive responsibility to the Legislature is assessed in a daily and periodic manner, in Non-Parliamentary form of Government’s such as in United States of America, the assessment of executive responsibility is only once in four years during the Presidential Elections.
The daily assessment in the “Parliamentary from” of Government is done by members of Parliament, through questions, resolutions, no-confidence motions, adjournment motions and debates on Addresses. Periodic assessment is done by the electorate at the time of the election-which may take place every five years or earlier.
It is clear that the Constitution makers had preferred the responsibility of executive held in place by the institution of Parliament over the stability of the executive associated with the American Presidential System.
Constitutional Provisions in India regarding the Parliamentary form of Government:-
The Constitution of India provides for a Parliament consisting of an elected President and the two Houses the House of the People (Lok Sabha) and the Council of States (Rajya Sabha). The President appoints the Prime Minister and on his advice the other Ministers of the Council of Ministers. The Council of Ministers is collectively responsible to the House of the People. The President summons the two Houses of Parliament to meet from time to time. He can prorogue the two Houses and can dissolve the House of the People.Parliament in India usually meets for about seven months in a year in three Sessions: The Budget Session (Feb.-May), the Monsoon Session (July-Aug.) and the Winter Session (Nov.-Dec.). The first session after the General Elections and the first session each year begins with an Address by the President.
Is the Indian Parliament Sovereign?
The sovereign will of the people may be said to find expression only through the collective decisions of their elected representatives in Parliament. Nevertheless, Parliament of India is neither sovereign nor supreme.
The authority and jurisdiction of Parliament are limited by the Powers of the other organs, the distribution of legislative powers between the Union and the States, the incorporation of a code of justiciable fundamental rights, the general provision for Judicial review and an independent judiciary.
The Supreme Court can declare a law passed by Parliament null and void, as violative of fundamental rights, or as contravening other provisions of the Constitution.Also, under the ruling of the Supreme Court, there are limits to the constituent power in as much as Parliament cannot alter what have been called the basic features of the Constitution.
Relationship between the Executive and the Legislature:-
The question of relationship between the Executive and the Legislature has been engaging the attention of political thinkers and constitutional theorists alike in Britain as also elsewhere. For instance, there has been much talk of the diminishing role of Parliament and the increased power of the Executive in the British Political system. Critics have sometimes examined current trends and have tried to suggest concrete remedies; they have frequently looked back to an alleged ‘golden age’ when the balance between Legislature and Executive was better maintained. Others have reached the pessimistic conclusion that little can be done to alter the situation.
There are two broad views about the functions of Parliament vis-a-vis the Executive.
1.Parliament as a Controlling force over the Executive:-
The first refers to Parliamentary sovereignty, ministerial responsibility, the parliamentary surveillance. This view emphasizes on the restrictions on the executive to arbitrarily and excessively tax the people and holding the ministers accountable for their acts done as the political head.In J.S. Mill’s view, therefore, the proper function of a representative assembly is “to watch and control the Government; to throw the light of publicity on its acts, to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if men who compose the Government abuse their trust, or fulfil it in a manner which conflict with the deliberate sense of the nation, to expel them from office.”
2.Parliament as a deliberative body
The second refers to the importance of debate rather than control. According to the second view, Parliament is not a corporate entity so much as an arena or forum. In this arena, individual members air grievances and groups of members’ carry on the party struggle. Minister, appear so that members can `have a go’ at them: debates on large issues are staged so that the opposition may present an alternative policy for the benefit of the electors. In other words, this view assigns Parliament a subservient role even though its debates may make newspaper head-lines.
Which of the above two views of Parliament do we find in the Indian Context?
The Indian system, however, represents a real fusion of the highest executive and legislative authorities. In terms of the Constitution, as also In actual practice, the relationship between the Executive and the Legislature is one that is most intimate and ideally does not admit of any antagonism or dichotomy. The two are not visualized as competing centres of power but as Inseparable partners or copartner in the business of Government. Parliament is a large body. It does not and cannot govern, The Council of Ministers is the ‘grand executive committee’ of Parliament charged with the responsibility of governance on behalf of the parent body. It is drawn from, and remain a part of the Parliament and is responsible to the Lok Sabha. The relationship between the Executive and the Legislature, may be said to be that of a part to the whole and one of interdependence.
While the Executive has almost unlimited right to initiate and formulate legislative and financial proposals before Parliament and to give effect to approved policies, unfettered and unhindered by Parliament, Parliament has the unlimited power to call for information, to discuss to scrutinize and to put the seal of approval on the proposals made by the Executive. The Executive (i.e. the political Executive the Council of Ministers) remains responsible and the administration accountable to Parliament. It is the function of Parliament to exercise political and financial control over the Executive and to ensure parliamentary surveillance of administration. Executive responsibility and administrative accountability, are two different functional concepts.
Administrative accountability means the accountability of the administration to Parliament. Parliament does not interfere with day to day administration nor does it control administration. Accountability to it is technical and indirect i.e. through the Ministers, and it is ex post facto i.e. after something is done; after action has ended. Also, it has to be based on specific grounds. Under the Indian system, after a policy is laid down, a law is passed or monies are sanctioned, it is administration which is required to execute and implement, Parliament cannot itself administer nor can the Ministers. It is, therefore, the officials and not the Ministers–who have to explain if things go wrong in the process of implementation. 22
Under the Constitution of India, the relationship between the Executive and the Parliament is based on mutual trust and confidence. An unwritten code subsists between the two: Parliament does not interfere with the Executive in the day-to-day administration and the Executive pays a heavy price for it by staking its life every day for what it does or does not do. Parliament has almost unlimited right of information and criticism ex post facto and the Executive has likewise unlimited right to initiate and formulate proposals and policies arid to give effect to the approved policies, unfettered and unhindered. In essence, Parliament must respect the Executive and the Executive must feel parliamentary influence all the time. So long as this equilibrium is maintained, there is every reason to believe that the government of the country will be carried on in accordance with the wishes of the people. The success of our system lies in our having in fact this happy balance and blending.
Method of Parliamentary Control over the Executive
In a parliamentary polity, Parliament embodies the will of the people and it must, therefore be able to oversee the way in which public policy is carried out so as to ensure that it keeps in step with the objectives of socio-economic progress, efficient administration and the aspirations, of the people as a whole. This, in a nutshell, is the rasion d’etre of parliamentary surveillance of administration. Parliament has to keep a watch over the behaviour of administration. It can enquire and examine ex post facto whether the administration has acted in conformity with its obligations under the approved policies and utilized the powers conferred on it for purposes for which they were intended and whether the monies spent were in accordance with parliamentary sanction. This ensures that the officials function in the healthy awareness that they, would be ultimately subject to parliamentary scrutiny and answerable for what they do or fail to do. But in order to be able to conduct meaningful scrutiny and call the administration to account, Parliament must have the technical resources and information wherewithal.23
The various procedural devices like the system of parliamentary Committees; Questions, Calling Attention, Half-an-Hour Discussion, etc. constitute very potent instruments for effecting parliamentary surveillance over administrative action. Significant occasions for review of administration are also provided by the discussions on the Motion of Thanks on the President’s Address, the Budget demands and particular aspects of governmental policy or situations. These apart, specific matters may be discussed through motions on matters of urgent public importance, private members’ resolutions and other substantive motions. Members are free to express themselves and to say what is good for the country and what modifications are required in the existing policies. Government is sensitive to parliamentary opinion; in most cases it anticipates that opinion; in sonic cases it bows to it and in some others it may feel that it cannot make any change consistent with its commitments, obligations arid political philosophy. Nevertheless, during discussions members have full liberty to criticize the administration for its performance and suggest how, it should behave in the future or how a particular measure should be carried out or implemented. The discussions are important for they indicate parliamentary mood and bring the impact of public-thinking on the administrative apparatus which may otherwise remain immune or impervious to public sentiments and feelings. It is as well that the parliamentary debates should serve to remind the administration of its duties and obligations. Parliamentary debates affect thinking and action of the administration in the variety of ways and the public influence which cannot be measured in terms of any visible units pervades through all the ranks of administration-high and low. Administrative accountability is thus laid down in these parliamentary discussions and after Parliament approves the policies, administration has complete freedom to implement them in the best manner possible but it is nevertheless haunted and guided by the various viewpoints expressed on the floor of the House.
Speaker and the conduct of business in the house
Under the Constitution of India, the Speaker is the head of the lok sabha and hence his chair is of great importnace within the house.
The Speaker conducts the business in the house, he presides over the debates,maintains order and decorum in the house,regulates the house in accordance with Rules of Procedure,Punishes a Member who exhibits unparliamentary conduct.
Various Powers and Functions of the Speaker finds place in the Constitutional Provisions, Conduct of Business and in the Rules of Procedure of Lok Sabha.
In the exercise of his powers and authority, the speaker has powers greater than any other speaker in the commonwealth.
While in other nations of the common wealth, most assemblies exercise a greater control over the Rules of the Procedure and the conduct of Business in their Assemblies. However this is not so the case with the Lok Sabha, where considerable power has been given in the hands of the Speaker to shape the rules convenient for transacting business in the house.
The Indian Constitution itself empowers speaker to make Rules or to modify any exisitng precednts for the provisional Parlimaent so as to suit them to tthe needs of the House. Though this was a temporary transitional provision, still the Speaker continued to wield this power even to the present day.
Speaker as an Intermediary between institutions:-
1.Any communication from the President to the House is sent through the Speaker.The speaker reads the message from the President to the Members of the House and subsequently issues directions with respect to the procedure to be followed for the consideration of the President’s Message.
2.Communications from the House to the President is also similarly made through the isntituion of Speaker.Motion of thanks, succesfully adopted by the house is commmuniacted to the president through the Speaker.
Hence, the speaker fucntions as an intermediary between the President and the Lok Sabha.
3.In addition to that it is through the speaker any message to and from the Rajya Sabha regarding a bill or the formation of a joint parliamentary committee is communicated.In this way the speaker acts as an intermediary between the houses of the Parliament.
4.The speaker also receives and sends messages from other legisaltures-state legislatures and legislatures of foreign countries. A state legislature having passed a resoltuoin for creation of a legislative council in the State transmits the message and the resolution to the Speaker who inturn communicates it to the other members of the house.
His Legislative functions may be broadly divided into the following categories
- Maintaining Law and Order in the House
- Control of Parliamentary Committees,
The Speaker’s Administartive powers as regard the different critical functions in realtion to questions,motions and resolutions are discussed below.
Administrative Powers :-Questions, Motions and the Speaker’s Role:-
Question Hour plays a very important role in ensuring the accountability of the executive to the Legislature. Questions asked in the floor of the house acts as a check on the actions of the Government.It is through the mechanism of Question Hour the Government and its Ministers are put on trial. Question Hour re-enforces the Parlaimentary responsibility of the Executive.
As the guardian of the rights and privileges of the House, he is also duty bound to admit rightful question which may bring to light any abuse of power, acts of injustice or inefficiency of the Government.
However while admitting a Question, the speaker has to be doubly sure that such questions are raised with an intent to genuinely question the government and not to waste the time of the house.There is always a risk of the question hour getting extended unnecessarily into a debate.
The Speaker has therefore to be very watchful in permitting supplementaries according to the relative importance of the subject matter of the question.
In addition to this, the Speaker also prescribes and fixes time limit for speeches that have to be made on thee floor of the house.This ensures that every member gets an opportunity to ask Questions.
Maintaining order and discipline in the House:-
Since the time available for the Paltiament to transact its business is very limited, the speaker has to ensure that the time of the Parliament is not wasted in unnecessary interruptions and irrelevant actions of the members of the house.
It is for this purpose the speaker has been given wide authority in acccordance with the Rules of Procedure.
Some of the commonly adopted mechanisms to discipline members of the House by the Speaker are:-
- Expunging any word/words considered unparliamentary that were spoken in any debate
- Speaker’s intervention to incase any memebr makes any irrelavant statement.
- Suspension of a member incase he continues to obstruct the smooth business of the house
Although the Speaker has wide powers to deal with cases of breach of order and discipline of the House under the Rules and constitutional provisions, he is expected to exercise his authority with tact and courtesy, avoiding any suggestion of unwarranted arrogance-or haughtiness.
Role of Speaker under the 10th Schedule:-
Speaker’s role as a judge under the Tenth Schedule:-
The Speaker has been vested with the Judicial Power to disqualify the members of the House on grounds of Defection.
The Speaker/Chairman is the sole and final authority to decide as to whether or not a legislator had defected from a party. His decision in this matter is final and the Courts were barred from interfering in his decision.
However a decision taken by the speaker under the 10th schedule provisions are not considered as a proceeding of the HOuse. What it measn is that the decision of the speaker is not subject to the approval of the Lok Sbha.The decision itself would be final.
The power of the Speaker to decide on any question of disqualification is however not a suo motu power and hence the speaker cannot initiate a proceeding under Anti-Defection law on his own. He can only entertain a complaint made by a member of the House on Grounds of Defection
Speaker’s Role in Parliamentary Committees:-
The Speaker being the Head of the House has been vested with powers so as to exercise control over all the Parliamentary Committees set up by him.
Under the Rules of Procedure and the Conduct of Business in Lok Sabha, the members of a Committee shall be appointed by the Speaker or elected by the House on a motionnn made by the speaker.
The speaker has the power to determine the period for which a committee shall continue to exist in the case of those committees nominated by the Speaker.
The Chairman of the Committees are appointed by the speaker.Any member of a parliamentary committee can resign by writing to the Speaker.
The Speaker also has the authority to issue necessary directions to the committees in relation to the work and procedure to be followed by him.
All proceeding and the decisions of the committees are communicated to the Speaker so as to keep him abreast of the all the proceedings of the committees.
There are certain committees such as the Business Advisory Committee, the General Purposes Committee and the Rules Committee which work directly under the Chairmanship of the Speaker.
The Speaker’s duties and responsibilities have therefore over the years increased in guiding and controlling the business of the Parliamentary Committees,
Need for Parliamentary Committees
- Due to the sheer size of the Lok Sabha,detailed examination of the administrative action and legislation becomes impossible on the floor of the house.
- The generalist nature of the elected representatives also prevents the effective participation of all the members of the house in scrutiny of the various provisions of the bills.
- Matters dealt with by Committees are often such as need to be considered in greater depth, with care and expedition, away from the glare of publicity, in a calmer and, so far as possible, non-partisan atmosphere. This kind of consideration becomes impossible on the floor of the house where party loyalty becomes a barrier for frank and open exchange of views.
- Since there is not much difference in the actual composition of the two Chambers in the Indian Parliament, the Rajya Sabha has become almost a parallel Chamber.Hence there is a need to involve the members of Rajya as well in shaping a legislation or in the scrutiny of finances.This is achieved through the Committee system-Departmetn Related Standing Committee & Financial Committees in the Parliament.
- While Independent members and members belonging to smaller parties do not even get a substantial floor time to speak and to put forward their suggestions in Lok Sabha, this is not so the case in Parliamentary Committees. They can also participate as equal members and since the process followed in the committees are less formal, the suggestions find greater acceptance with the Government.This also leads to a more comprehensive and judicious consideration of the issues entrusted to the Committees.
- The Committees provide useful forums for the utilization of experience and ability that may otherwise remain untapped.
- They also constitute a valuable training ground for future ministers and presiding officers. They train a large number of Members not only in the ways in which administration is carried on, but also make them aware of the problems that the administrators have to face in their day-to-day functioning.
- Another important function of the Parliamentary Committees is that they secure the participation of the General Public in the process of policy making.They act as channels through which the opinion of experts,institutions and incases even individual citizens can be obtained. This procedure helps in educating the public in the functioning of the Parliamentary System and focusing their attention on important public issues.
Issues, Challenges with the Committees and the Way Forward:-
- Paucity of time becomes the biggest challenge for the successful execution of the committee work.
- The non-binding nature of the committees recommendations makes the committee work less serious.
- Many Parliamentarians in the past have rooted for additional powers to be given in the hands of the committees.One effective change that can be introduced can be to route all the policy documents through committees.
- The Committees suffer from irregularity in attendance by members which is also said to have been prompted by lack of teeth by the Committees. The members, under pressure of constituency and party work, do not make time to attend the Committee meetings.
- Secretarial assistance to Parliamentary committees remains a challenge. The Manpower of the secretariat is found to be mostly occupied with other legislative work than assisting the MP’s in their committee work.
Privileges available to parliamentarians and associated issues.
‘Parliamentary Privileges’ refers to certain powers, privileges and immunities enjoyed by a legislature and its members.
These privileges enable the legislature to discharge its functions effectively, fearlessly and without any outside interference. They are also essential to protect the authority and dignity of the legislature.
Some privileges are available to the institution of Parliament such as the power of the Parliament to “punish for privilege and contempt”,the “right to prohibit its proceedings” and the “right to regulate its own procedure”.
Individual members of each House of Parliament also have certain rights and immunities such as ‘freedom of speech and debate in the house’ and ‘freedom from arrest in civil cases’ etc.
In India, some of the privileges of the Parliament and State Legislatures, such as freedom of speech, are explicitly provided by the written and the supreme Constitution and other privileges, such as power to punish for contempt, are required to be codified by the respective legislatures by making laws.
Until the enacted laws codify the privileges, the legislative bodies in India are permitted to enjoy all the privileges exercised by their predecessor (the British House of Commons), as an interim measure.It is to be pointed out here that till date no such law for codifying what exactly are parliamentary privileges has been made by the Parliament.
Privileges present in the Rules of Procedure:-
- Prohibition of disclosure of the proceedings or decision of a secret sitting of the House;
- Right of the House, to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member;
- Prohibition of arrest or services of legal process within the precincts of the House without obtaining the permission of the Speaker/Chairman;
- Members or officers of the House cannot give evidence or produce documents in courts of law, relating to the proceedings of the House without the permission of the House;
- Members or officers of the House cannot attend as a witness before the other House or a Committee thereof or before a House of State Legislature or a Committee thereof without the permission of the House and they cannot be compelled to do so without their consent;
- All Parliamentary Committees are empowered to send for persons, papers and records relevant for the purpose of the inquiry by a Committee. A witness may be summoned by a Parliamentary Committee who may be required to produce such documents as are required for the use of a Committee;
- A Parliamentary Committee may administer oath or affirmation to a witness examined before it;
- The evidence tendered before a Parliamentary Committee and its report and proceedings cannot be disclosed or published by anyone until these have been laid on the Table of the House.
Issues that arise with respect to the use/misuse of Parliamentary Privileges:-
- Cash for Vote (JMM Bribery Case)-Privilege of the corrupt
Two instances can be cited to point out how Parliamentary privilges have been misused for corrupt practices. In privilege matters the case which has attracted public attention has been P.V. N. Narsimha Rao Vs State (JMM Bribery Case).In this case, the immunity under Art. 105 were extended to protect the Members of the Parliament even when they were guilty of criminal charges.Members who had taken a bribe to vote in favour of the government were still not penalized as they were offered protection from trial by virtue of the Parliamentary privileges they enjoyed.
Parliamentary privileges which were created so as to uphold the independence of the legislators became a shield in the hands of such corrupt members who wanted to protect themselves from the law.
2. Lack of Codification of Privileges- Uncertainty of what privileges are.
Art 105(3) empowers the parliament to specify all the privileges available to its members by a separate law. It also says that until such a law is enacted the members would be entitled to enjoy the same privileges they had enjoyed before the constitution had come into effect.
The point to be noted here is that till date no such law had been deliberated and enacted by the Parliament. Hence in many circumstances actions of non members have been construed as a breach of Privilege and subsequent contempt of House. Lack of clarity on what constitutes Privileges is due to the absence of such a law that provides for privileges to the Parliamentarians.The urgent need of the hour is to codify the Privileges available to the Members of the Parliament immediately.
3. Fundamental rights vs privileges-Parl. Privileges contradict Rule of Law
The concept of a General Law is to treat all citizens equal irrespective of their position or status. Parliamentary privilege itself is a misnomer in the present day. Such privileges had been created for the benfit of the British Parliamnetarians in an age when Equality before Law was unheard of and the society accorded various privileges to certain classs of people.
Even in Questions that deal with Breach of Privilege,the Indian Parliament continues to follow a policy of differential procedure for each case of breach of privilege that comes up before it, guided solely by the exigencies of the hour and popular public opinion in a particular case. This has been argued as a violation of principle of Equality before Law.
4.Rules of Procedure is not a substitute for Legislation
Many of the privileges available today to the Legislatures are by virtue of corresponding provisions in their respective Rules of Procedure. Eg:- Rule 271 and Rule 272 in Rules of Procedure of Lok Sabha contains provisions that empower Lok Sabha and its committees for summoning and examining witnesses on oath.
The burning question here is whether Lok Sabha can make such provisions in Rule of Procedure since these are questions of law and hence would have to be dealt with an appropriate legislation. Rules of Procedure is just a tool so as to regulate the procedural aspects of day to day functions of the house.
Hence, it can be criticised that the Lok Sabha has exceeded its powers in creating such powers and privileges for itself by a simple “Rules of Procedure” while as per the provisions of the constitution such privileges should have been by virtue of a law.
1.. The recommendation made by the National Commission for Review the Working of the Constitution, that Article 105 (2) may be amended to clarify that the immunity enjoyed by the Members of Parliament does not cover corrupt acts committed by them in connection with their duties in the House or otherwise, should be implemented. Article 194 (2) dealing with the immunity to members of State Legislatures should also be amended in the same manner.
2,Articles 105 (3) and 194 (3) be amended and the expression “Subject to the other provisions of this Constitution” should be inserted at the beginning of these articles. Such an amendment is essential to clarify that the privileges of the House of Commons in their application to the Indian Legislative bodies are controlled by the fundamental rights and other relevant provisions of the Constitution.
3.The Parliament and State Legislatures ought to modify their ‘rules of procedure and conduct of business’ made under Articles 118 and 208, respectively, in order to ensure compliance with the constitutional limitations on the freedom of speech guaranteed to their members. An ‘Advisory Guide’ consisting of ‘dos’ and ‘don’ts’ in regard to the exercise of the freedom of speech should be given to each member of the Parliament and State Legislatures immediately after the oath of office is administered to him.
4.The powers, privileges and immunities of the Parliament/State Legislatures and their members ought to be clearly defined and delimited under a law in such a manner that they become consistent with the mandatory provisions of the Indian Constitution including fundamental rights. A law codifying the privileges shall be amenable to jurisdiction of the courts under Article 13 and any provision, substantive or procedural, can be scrutinized by the courts on the touchstone of fundamental rights. Such a law shall necessarily be complying with the requirements of Article 21 by providing for a just, fair and reasonable procedure incorporating the principles of natural justice.
5.At present the legislative bodies claim the absolute jurisdiction to determine the existence and extent of the privilege powers, free of judicial control, as enjoyed by the British House of Commons. This leaves a vast scope for the uncontrolled and arbitrary exercise of privilege powers capable of violating the basic rights of the members as well as non-members. Codification of the privileges will minimize the chances of abuse of powers by the Houses and provide judicial remedies in case of any arbitrary or capricious exercise of powers by them.
Should parliament have constituent powers?
What is constituent power?
The Constituent power in its fuller sense connotes power to establish, adopt and enact and give a new constitution. By its very nature, the reins of the Constituent power are wielded by the political- legal sovereign in the society and polity which also commands the allegiance of the bulk of the people.
The notion of “constituent power “as used in the Indian decisions, involves a central ambiguity. The term is used to connote the power of amendment of the Constitution (what the French call pouvoir constituent) and the power to make, remake and unmake the Constitution. The two powers are distinct though related.
Constituent Power is Superior to Ordinary Legislative Power :-
It is necessary to point out the subtle difference that exists between two kinds of functions performed by the Indian Parliament:
a) It can make laws for the country by exercising its legislative power and
b) It can amend the Constitution by exercising its constituent power.
Unlike the British Parliament which is a sovereign body (in the absence of a written constitution), the powers and functions of the Indian Parliament and State legislatures are subject to limitations laid down in the Constitution.
The Constitution does not contain all the laws that govern the country. Parliament and the state legislatures make laws from time to time on various subjects, within their respective jurisdictions. The general framework for making these laws is provided by the Constitution. Parliament alone is given the power to make changes to this framework under Article 368. Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament.
Another illustration is useful to demonstrate the difference between Parliament’s constituent power and law making powers.
According to Article 21 of the Constitution, no person in the country maybe deprived of his life or personal liberty except according to procedure established by law. The Constitution does not lay down the details of the procedure as that responsibility is vested with the legislatures and the executive. Parliament and the state legislatures make the necessary laws identifying offensive activities for which a person may be imprisoned or sentenced to death. The executive lays down the procedure of implementing these laws and the accused person is tried in a court of law. Changes to these laws may be incorporated by a simple majority vote in the concerned state legislature. There is no need to amend the Constitution in order to incorporate changes to these laws. However, if there is a demand to convert Article 21 into the fundamental right to life by abolishing death penalty, the Constitution may have to be suitably amended by Parliament using its constituent power. This power in the hands of the Parliament to amend the constitutional provisions would be referred to as the “Constituent Power” of the Parliament.
Limitations on the Constituent Power of the Parliament:-
- Exercise of Constituent Power cannot damage the basic framework of the Constitution nor can it impair the essential features of the constitution in any way.
- It is a power that has been vested in the hands of the Parliament so as to provide it with a special authority so as to make changes inorder to meet the demands of the time.It is a power to realize the pious aspirations set in the constitution.
- In exercise of the Constituent Power, the Parliament cannot replace the constitution with a new one. The present Constitution cannot be jeopardized by the constituent power of the Parliament.Changes can be made to the existing constitution but the Parliament cannot change the Constitution itself.
- Art 368 which confers the Power of Amendment of the constitution in the hands of the Parliament is only a procedural matter. All that art 368 conveys is the procedure that needs to be followed by the parliament in amending any part of the constitution. This article does not describe it as a sovereign, all-encompassing comprehensive power whereby the Constitution can be disestablished, defaced or defiled. The implied limitations inherent in it confine it to addition, variation or repeal of any provision and change in the Constitution. It can in no way endanger the existence of the Constitution by making sweeping changes.
- This power guarantees against socio-political upheavals and guards against unforeseen revolutionary break in the continuity of Constitutional system. Hence it should be sparingly used only when the situation so requires.