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BRITISH CONSTITUTION
Salient Features: The salient features of the British Constitution are as under:1. Evolutionary Constitution: The British constitution has never been reduced to writing
in a documentary form at once; rather it has an evolutionary growth. Conscious efforts
as well as needs of times shaped its spontaneous growth. Parliamentary acts and
judicial acts fall under first category, while unwritten sources such as conventions, also
played their role in the development of the constitutional law.
2. Unwritten: The British constitution is unique in the sense of its unwritten character.
By unwritten it does not imply that all of its parts are unwritten; rather it means that it
has not been reduced into writing in a documentary form. Some of its components are
found explicitly in written form such as historic documents, acts of Parliament and
Common law.
3. Flexibility: Flexibility of a constitution implies the absence of specific procedure
required for the amendment of the constitution. British constitution is flexible in the
sense that Parliament can amend the constitution just by a simple majority. This
feature of the British constitution has helped it to adjust itself according to the needs
of the changing circumstances.
4. Unitary System: In British Constitution, the Central Government is the exclusive
source of all governmental authority. The Central Government demarcates the powers
and functions of local institutions and makes rules regarding their organization. It
delegates powers to the local institution and is fully authorized to withdraw these at
its own discretion.
5. Bicameral Legislature: The British Parliament consists of two houses, the Upper House
known as the House of Lords and the Lower House known as the House of Commons.
The Upper House, i.e. House of Lords is basically a hereditary house and its members
are nominated by the Queen, whereas the Lower House, i.e. House of Commons, is
popular house whose members are directly elected by the electorate. House of
Commons being a popular house, is comparatively more powerful while in the past it
has performed subordinate role. With the development of democratic system, the
House of Commons gained importance and upper hand in legislation especially under
Parliament Act 1911 and 1949. At Present, the supremacy of the Parliament practically
signifies the supremacy of the House of Commons, as the Cabinet is formed basically
within this house and the Prime Minister and most of the ministers are taken from its
membership. The Cabinet is also accountable to the House of Commons.
6. Supremacy of the Parliament: British Constitution embodies the doctrine of
“separation of powers” which bears two things. Firstly, the Parliament enjoys has
absolute legislative powers and is fully authorized to alter or repeal any law or
convention by a simple procedure. It can abolish any institution or existing practice.
Thus , it is said regarding the supremacy of British Parliament that, British Parliament
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can do any every thing except to make a man into woman or vice versa. Secondly,
enactments of the Parliament are not challengeable in the Court even being contrary
to the constitution. Nor the courts of British are empowered to pass judgment on the
laws of the Parliament. Nevertheless, the Parliament keeps into consideration the
trends of public opinion, canons of International law and morality and treaty
obligations.
7. Constitutional Monarchy: Constitutionally, the Crown is the repository of the entire
governmental authority in Britain. However, the powers of Crown are not exercised by
the Queen in person, but the same are wielded by different branches of the
government on behalf of the Queen. For instance, the Parliament exercises supreme
legislative authority and the Cabinet performs executive functions. The ruler is titular
sovereign who exercises the governmental authority on the advice of the people’s
representatives. Whatsoever order or decree is issued by the sovereign, it is
countersigned by any minister.
8. Parliamentary System: England has a parliamentary form of government. The king or
Queen who is sovereign has been deprived of all his powers and authority. The
Cabinet, under the leadership of Prime Minister, is the real executive. The members of
Cabinet are members of either house of the Parliament and if any person who is not a
member of Parliament at the time of his nomination as minister, got to be made as
such within six months. They belong to the majority party in the Parliament and
collectively accountable to the Parliament. They remain in power as long as they
command the confidence of Parliament, otherwise they have to resign. The Cabinet’s
role is not limited merely to the exercise of administrative authority, it prepares all the
government bills to be initiated in the House of Commons.
9. Gap between theory and practice: There is a great gap between theory and practice
due to the unwritten character of the constitution. For instance, theoretically the King
or Queen is sovereign but in practice the Parliament is sovereign. Theory the political
system of British is absolute monarchy but in practice it is Crown Republican. In
theory, the King or Queen is the fountainhead of patronage but in practice all honours
and titles are conferred by the Prime Minister. In theory, King or Queen has unlimited
powers but in practice he or she does little, even every action of the King or Queen is
countersigned by a Cabinet Minister. Lord Sankay remarked that, “theory has no
relation to realities in British Constitution”.
10. Two Party System: There is bi-party system in British, which has contributed to the
strengthening of political traditions. One party forms the government while the other
sits in the opposition. The party in power always looks after the interest of the
opposition because they know that if today they are in opposition, tomorrow they can
be in power.
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11. Rule of Law: Another important feature of the British constitution is the Rule of Law.
According to Dicey, it has following three implications:
a. All persons are equal before law irrespective of their position or rank.
b. This doctrine emphasizes the supremacy of the law and not of any individual.
c. No one can be detained or imprisoned without a fair and proper trial by a
competent court of law. Nor can a person he punished or deprived of his life,
liberty or property except for a specific breach of law until proved in an
ordinary court of law by an ordinary procedure.
12. Fundamental Rights: Fundamental rights of the citizens are not incorporated in the
British Constitution in the form of list. Constitutional law is not the creator but a
product of fundamental rights, which have been recognized, from time to time, by the
Courts. Hence most of the fundamental rights are based on judicial decisions. The
foundations of individual rights in England are almost negative in the sense that an
individual has the right and freedom to take whatever action he likes, so long as he
does not violate any rule of the law of the land. In the absence of any written
document, it is the duty of the Court to protect individual liberty by judicial decisions.
It has been maintained that the law of England is the law of liberty”. Some rights have
been recognized by the Parliament through enactment, such as the Magna Carta,
Petition of Rights, Bill of rights and Act of Settlement.
13. Independence of Judiciary: The British Constitution is based on the principle of
independence of judiciary, which has been its fundamental principle since 17th
century. Although the judiciary is independent in Britain but the right of judicial review
is not granted to it.
14. Nature of the Conventions: The large numbers of conventions are in the constitution
of Britain. No one can understand the constitution properly without studying these
conventions. They are a part of constitution but they are not law, because these
conventions cannot be enforced by the courts. They are well known to those who run
the government.
15. Referendum: Sometimes, people are directly taken into confidence on urgent matters
of national interest through referendum. Referendum was held in 1975, for instance,
for eliciting public opinion over the issue of British entry in Europe Economic
Community. The practice was again adopted in 1978 while deciding on the issue
relating to the autonomous status of Scotland.
16. A blend of Monarchy, Aristocracy and Democracy: The British Constitution is a unique
blend of monarchy, aristocracy and democracy. It is monarchy due to the existing of
King or Queen, aristocracy due to House of Lords and democracy due to House of
Commons elected directly by people.
DIFFERENCE BETWEEN CONSTITUTION AND CONSTITUTIONAL LAW
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A constitution is a body of fundamental principles lying down the fundamentals of the
constitution. It defines the limits and powers of a government. It is the fundamental law of
the land, so the government cannot make any law that violates the constitution. For instance,
the constitution of Pakistan is a single document.
Constitution law is the body of rules and doctrines about how to read, apply and
understand the constitution. It is the interpretation of the constitution by the courts and
includes various cases decided by the courts. Shortly, Constitutional law is the sum of all the
cases that interpret and apply the Constitution to particular facts. For instance, the
constitution of Pakistan lays down that no law contradicting fundamental rights of the
citizens shall be legislated.
SOURCES OF THE BRITISH CONSTITUTION
The British Constitution can be classified into two main parts: (a) Constitutional law and (b)
Conventions of the Constitution. The sole determinant behind this is not only written or
unwritten nature, rather recognition by the courts. Constitutional law signifies the body of
rules recognized and enforced by the courts while conventions, though most imperative to
the working of the British political system, are not enforced by the Courts. Constitution law is
bases on the written sources of the constitution and includes Historic Documents, acts of the
Parliament, Judicial decisions and Common law.
1. Historic Documents: The historic documents including solemn agreements or chaters
that arrived between the King and his subjects. These documents played vital role in
constitutional development and transmitted the absolute monarchy into
constitutional government in Britain. Among these documents, following are
important:a. The Magna Carat, 1215: This charter is considered as the foundation of the
British Constitution. It was signed by King John, whereby he ceded his powers
and conferred certain rights to the people, which include: equal subjection to
law; right to justice and free trial and the right to property, etc. This charter also
granted powers to the Great Council and prohibited the imposition of certain
taxes by King without the consent of the Great Council.
b. Petition of Rights, 1628: The Parliament sent this petition to King Charles-I
encompassing complains regarding series of infringement of civil rights of
people. It contained four principles: (a) No taxation without the consent of the
Parliament; (b) NO imprisonment without cause; (c) No quartering of soldiers
on subjects and (d) No Martial law in peace. The King was compelled to accept
the petition.
c. The Bill of Rights, 1689: The English Bill of Rights was an act signed by King
William-III and Queen Mary-II. The bill outlined specific civil and constitutional
rights and made the Parliament supreme law-making body. It also clarified that
who would be the next to inherit the Crown. The rights included in the bill
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were: freedom of press; freedom of speech; freedom of religion and freedom of
petition to the government to right wrongs.
2. Statutes: Statutes refer to the acts of the Parliament. British Parliament enacted
certain laws from time to time that were of constitutional significance and the source
of British Constitution. Some minimized the discretionary powers of the constitution
while certain statutes secured protection to civil liberties and extension in suffrage
(right to vote). The parliament enacted laws regulating the powers and organization of
local institutions and that of the courts. Some of the important statutes are as under:
a. The Act of Habeas Corpus, 1679: This act was passed during the reign of King
Charles-II, in order to examine the lawfulness of a prisoner’s detention and thus
to prevent unlawful or arbitrary imprisonment.
b. Act of Settlement, 1701: This act was designed to secure the Prostant
succession to the British throne.
c. Parliament Act, 1911: This act curtailed the powers of House of Lords and
permanently established the supremacy of the House of Commons. Further, it
reduced the life of the House of Commons from seven to five years.
d. Representation of People Act, 1918 and 1928: These both acts established the
principle of Universal Adult Suffrage by guaranteeing the right of vote to
women.
e. Statutes of Westminster Act, 1931: This act recognized the independence of
the Dominions of Canada, South Africa, Australia and New Zealand.
f. Indian Independence Act, 1947: This act handed over all the political powers to
India and Pakistan by division of India.
g. European Union (withdrawal) Act, 2019: This act extended the period defined
under article 50 (3) of the Treaty on European Union relating to the UK’s
withdrawal from the European Union. It extended the date upto 30 June, 2019.
3. Judicial Decisions: All such decisions as explain and interpret the oft-quoted rules,
charters and common law have been regarded as part of constitutional law. In Britain,
most of the rights enjoyed by the British people are the outcomes of judicial decision
including: right to personal liberty; right to public meeting; right to freedom of speech,
etc. Albert Venn Dicey remarked that, “English Constitution is a judge made
constitution”.
4. Common Law: Common law refers to the body of rules that reflect past customs and
traditions of English society and were recognized by the Courts while deciding the
cases. These were never enacted by the Parliament. These rules are fully accepted and
enforced as law. Certain rules of Common law are of fundamental importance to the
working of the governmental machinery. Most of the prerogatives of the Crown and
important fundamental rights of the citizens are part of common law. The rights
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include: right of trial by jury; right of freedom of speech and assembly and; right of
redress of tortuous acts of governmental officers.
5. Commentaries of the Jurists: Some eminent jurists have written comments on the
constitutional law of England, which constitute another source of British Constitution.
For instance: Aron’s Law and Customs of Constitution; May’s Parliamentary Practice;
Dicey’s Law of Constitution and; Blackstone’s Commentaries on English Constitution,
etc.
6. Conventions: Conventions of the Constitution are the most important source of
English Constitution. They consist of undertakings, usages, habit or practices, which
regulate the conduct of members of ministry and other officials. The most of the
political values and practices are rooted in these political usages. They are not law as
they are not recognized by, or enforced in, the Court, but still they are highly
respected. As regards the value of the conventions; it would be enough to say that
these have enabled the English political system to adopt itself to the changing needs
of time and acquired the force of customary law. Some of these conventions are:
a. The British Monarch cannot veto the bill passed by the Parliament.
b. The leader of the majority party is invited to form the cabinet.
c. The money bills originate in the House of Commons.
d. The cabinet remains in power only during the confidence of the House of the
Commons.
e. All the civil servants are tried in the same court like any other citizen (Rule of
Law).
THE SEPARATION OF POWERS
The phrase ‘separation of powers’ or ‘trias politica’ was coined by Charles Louis de Secondat
and Baron de Montesquieu with their canonical statement in “Spirit of Laws” in 1752. But the
idea of separation of powers was early anticipated by Plato, Aristotle and John Locke.
DOCTRINE: The doctrine of separation of powers envisages a tripartite system, whereby
powers are constitutionally delegated to the three organs and the jurisdiction of each is
delineated. These three organs are: the Legislative, the Executive and the Judiciary.
JOHN LOCKE: The English Philosopher, John Locke in the year of 1690, argued in favour of
supremacy of legislative power, which should be divided between the King and the
Parliament. He distinguished between what he called:
 Discontinuous Legislative Power; including the general rule-making power called into
action from time to time.
 Continuous Executive Power; including all the executive and judicial powers.
 Federative Power; including the powers of conducting foreign affairs.
BARON DE MONTESQUIEU: Montesquieu, for the first time, gave a systematic and
systematic formulation of “Separation of Powers” in his book “The Spirit of the Laws”
published in 1748.
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He expressed that, “In every State, there are three kinds of powers; the Legislative
power responsible to make laws for the time being or for all time and amending and
repealing those prevailing made. The second power executing the matters including war and
peace, sending and receiving ambassadors, preventing invasions, etc. The third power
executing the matters through punishment of crimes and judging the disputes of private
individuals”.
According to him, each of these powers should be vested in a separate and distinct
organ, in order to secure liberty and avoid converge of powers. For instance, if legislative and
executive powers unite, there is apprehension that the concerned may enact tyrannical laws
and execute them in a tyrannical manner. Moreover, there can be no liberty if the judicial
power is not separated from the executive and legislative power. For instance, if judiciary
joined with executive power, the judge might behave with violence and oppression. If it
joined the legislative power, the life and liberty of the subject would be exposed to arbitrary
control.
Thus, the doctrine of separation of powers signifies three classifications of
governmental powers:
1. The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in parliament.
2. One organ of the government should not interfere with any other organ of the
government.
3. One organ of the government should not exercise the functions assigned to any other
organ.
BRITISH CONSTITUTION: United Kingdom is the most peculiar state having no written
constitution. Due to the absence of formal written constitution, it is possible to claim that
there is no formal separation of powers in UK. This does not mean that these three
departments do not exist in UK, rather there is the Parliament, the Executive and the
Judiciary in UK but there is absence of separation of powers. There is an intimate interrelation between the three functional wings and a good amount of blending or overlapping.
The whole constitutional setup works in the assumption of cooperation between the three
wings particularly between the executive and the legislative.
1. The Executive: The executive consists of the Crown and the government, including
Prime Minister and Cabinet of Ministers. Moreover, the Civil Service is also a part of
the executive. The prime function of the government is to formulate and execute
government policies.
The Prime Minister is elected from the House of Commons, who later selects
Ministers of Cabinet from either house of Parliament. The Cabinet along with the
Prime Minister is collectively responsible to the Parliament and hold office until they
retain the confidence of the Parliament. Ultimately, the Prime Minister can advice
the King or Queen to dissolve the Parliament.
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2. The Legislature: The Parliament in UK is the Legislative body, which consists of the
Monarch and two houses: the House of Lords and the House of Commons. The
functions of the Parliament are to make or amend or repeal laws, scrutinize the
government and to enable the government to make financial decisions.
The Ministers of Cabinet are a part of Parliament and are accountable to it.
The Government can only retain officer until they command the confidence of the
majority in the Parliament. Money bills are considered on the recommendation of
executive. The Parliament also exercised judicial power in so far as it can punish
anyone for contempt or for breach of its privileges.
3. The Judiciary: The Judiciary in England hears upon and resolves the matters of law as
well as it develops new law through their judgments. According to various sources,
the judiciary in the UK is independent of both Parliament and executive. But, it may
be argued that this independence is not genuine as the senior appointments are
made by Crown and are removable by the Crown on an address by both houses of
Parliament. The sovereign has the prerogative of mercy in respect of persons
convicted in courts. The judiciary also enjoys legislative powers by prescribing rules
of court and lays down new laws through their decisions.
THE RULE OF LAW
Rule of law is the most important feature of British judiciary. The term Rule of Law is derived
from French phrase “la principle de legalite” which means “the principle of legality”. It refers
to the government based on the principles of law and not of men. Rule of law is a legal
principle that law should govern a nation, and not arbitrary decisions by individual
government official. It means that law is supreme authority and is above every individual. No
individual whether he is rich, poor, ruler, or ruled, etc is above law and they should obey it.
Historical Aspect: A brief history of the development of Rule of law is as under:1. Aristotle: The concept of Rule of law begun around 350 B.C. by Aristotle. According to
him, “The Rule of law is better than that of any individual”. He suggested that every
member of society, even a ruler, must abide by and follow the law. The Rule of law is
linked with the principle of justice in the sense that everyone within a society are
subject to the law, and that those laws are administered fairly and justly. Thus, the
intention of the Rule of law is to protect against arbitrary governance, underpinning of
a free society.
2. John Locke: The concept of rule of law proceeds with modern period in the work of
John Locke around 1689. He emphasized the importance of governance in his book
“Two Treaties of Government (1689)”. He wrote that, “freedom in society means
subject only to laws made by a legislature that apply to everyone, with a person being
otherwise free from both: government and private restrictions upon liberty”.
3. Montesquieu: A French judge, Montesquieu worked on the Rule of law by developing
his theory “The Spirit of Laws, 1748”. He gave the concept of separation of powers,
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particularly the separation of judicial power from executive and legislative power. He
quoted that, “There is no greater tyranny than that which is perpetrated under the
shield of the law and in the name of the justice”.
4. Albert Venn Dicey: The concept of Rule of law was further popularized by British Jurist
Albert Venn Dicey in 1885. He is known as the main proponent of the Rule of law in
modern history. He popularized the phrase Rule of law in his book “Introduction to the
Study of the Law of the Constitution” in 1885 and proposed three main principles for
the Rule of Law, as under:a. Supremacy of Law or Absence of Arbitrary Power: According to Dicey, Rule of
law means the absolute supremacy of law. No person can be detained
unlawfully without his guilt being proved in a court of law. This means that
“Rule of law” nullifies all chances of arbitrariness and autocracy.
b. Equality before Law: The second principle of Dicey’s Rule of law means equality
of law or equal subjection of all classes of people to the ordinary law of the
land, which is administered by the ordinary law courts. No man is above the
law, even the government officials are under duty to obey the same law and
there can be no other special courts for dealing specifically with their matters.
All persons are equal before law irrespective of their position or rank.
c. Constitution is the result of ordinary law of the land: According to Dicey, in
many countries rights such as right to personal liberty; right to freedom; right
to privacy and to hold meetings, etc are provided by their written constitution.
But, in England these rights are result of judicial decisions that are passed due
to the conflict between the parties. The Constitution is not the source but the
consequence of the right of the individuals.
EXCEPTIONS: “Rule of law” has not been implemented in Britain in its letter and spirit as
Dicey ascertained. The following few exceptions are noteworthy:
1. The Monarch is immune from the limitations implicit in the “Rule of law” as “King can
do no wrong” is the basic doctrine of British political system. Hence the Monarch
cannot be summoned in any court of law. Through all servants of the Crown are legally
answerable to courts for their departmental affairs.
2. Under Crown Proceeding Act of 1947, government officials enjoy certain privileges. A
citizen can be imposed heavy penalty who goes on litigation against a public official
but fails to prove the allegation in the Court. Moreover, no litigation can be done
against judges regarding the performance of their duties.
3. All aliens, diplomatic staff of other countries in Britain and the ruler, are exempted
from the application of this principle.
4. With the increases interference of State in routine life of the citizens, certain
administrative officials have been delegated quasi-judicial powers. Theoretically, only
the courts have the right to settle all controversies, but in practice, the system based
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on ‘Administrative law’ got its footing even on English soil. It has been adopted with
the sole intention of adopting quick and cheap justice. Decision makers under
‘Administrative law’ have the privilege of having better understanding of the disputes
and technical affairs of their respective departments as compared to judges working in
a distinct set-up.
Criticism: ___
MODERN PERSPECTIVE: The modern concept of the Rule of law is fairly wide and sets up an
ideal for any government to achieve. The Rule of law implies that, “the functions of the
government in a free society should be so exercised as to create conditions in which the
dignity of man as an individual is upheld. This dignity requires the recognition of certain
political, social, economical, educational and cultural conditions, which are essential to the
full development of his personality.
ISLAMIC PERSPECTIVE: Islam is the religion of peace, harmony and fraternity. It pays special
emphasis on the rule of law and social justice, as being the essence of society. Islam has
made it incumbent upon the government of an Islamic State to ensure their enforcement. It
is mentioned in Quran that, “And when you judge between the people, judge with justice
(An-Nisa, Ayat No. 58)”.
In consonance with Allah’s commandments, the Holy Prophet Muhammad (PBUH)
established a society based on rule of law and social justice, where everyone was equal
before law irrespective of their power, authority, wealth, colour, sex, creed and religion; and
where all the government functionaries including the Head of the State were accountable
and answerable to the people.
Once a Quraishite lady belonging to an influential family was nabbed for committing
theft and the charge was proved against her. As per Islamic injunctions, the Holy Prophet
(PBUH) ordered to amputate her hand, upon which some important members of her clan
came to Him and sought respite for her. He did not like this and said that, “The people before
you were destroyed because they used to inflict the legal punishment on the poor and
forgive the rich. By Him on whose hand my soul is, if Fatima (the daughter of Prophet) did
that, I would cut off her hand”.
Rule by law: Rule by law is the concept that sees the governing authority above the law. They
have the power to create and execute law where they find it to be convenient despite their
affect on longer freedoms that the people enjoy. In Rule by law, the government uses law as
the most convenient way to govern. Rule by law can become an instrument of oppression
and it can give legitimacy to the enactment of laws which may grossly violate basic human
rights.
PARLIAMENTARY SOVEREIGNTY
Sovereign means Supreme. Parliamentary sovereignty implies supremacy of UK Parliament
and that there is no other authority above it. UK Parliament consists of the Crown, House of
Lord and House of Common. By virtue of the principle of Parliamentary sovereignty it can
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make or unmake any law. Neither its laws are challengeable in Courts nor can anybody
override them. The expression Parliamentary sovereignty means that the Queen, the House
of Lords and the House of Commons can pass, amend, or repeal laws to any extent and that
there are no fundamental laws with which Parliament cannot interfere. There is a maximum
that “Parliament can do everything except to make a man a woman”. According to Keith
“Sovereignty of parliament means that parliament is supreme power of the state. It can make
or unmake any law, court will obey its legislation, nor is there any power in state who
override or curtail its authority.”
From positive point of view, Parliamentary Sovereignty would result that: Courts will
obey any new law made by Parliament, and similarly, any act of Parliament which annuls or
modifies any existing law will be obeyed by the Courts. From negative point of view, it would
result that: no rules made by any person or body under English Constitution us contravention
of an Act of Parliament will be enforced by the Courts.
PRINCIPLES OF PARLIAMENTARY SOVEREIGNTY: The principles of Parliamentary Sovereignty
may be explained in three ways:
1. Right to make or unmake any Law: The Parliament has right to make any law, when it
feels. And, it also has authority is dismiss any existing law. Parliament can do
everything but to make a woman a man and a man a woman. In other words, it can do
everything except what is naturally impossible.
2. Nobody can curtail or override its legislation: No body or body of person is
recognized by the law of England as having right to curtail or override legislation of
Parliament.
3. Authority of Parliament: That this authority of Parliament extend to every part of
British Dominions.
EXAMPLES OF PARLIAMENTARY SOVEREIGNTY: Several instances of Parliamentary
Sovereignty can be cited as follows:1. Acts of Settlement (1701): In 1701, owing to Mary’s death and William III dying
childless, it became necessary to provide for the devolution of the Crown on the death
of William III and Princess Anne of Denmark. Accordingly, Parliament passed this act
whereby descent of the Crown, as fixed in the Bill of Rights was varied and the Crown
was settled upon Princess Sophia, grand-daughter of James-I, and the heirs of her
body. It was her son George I who succeeded to the throne in 1714, on the death of
Queen Anne.
2. Acts of Union with Scotland (1707) and with Ireland: By virtue of these two Acts of
Parliament, Scotland and Ireland became parts of England.
3. Septennial Act (1716): By this Act the duration of Parliament was extended from 3 to
6 years.
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LIMITATIONS ON PARLIAMENTARY SOVEREIGNTY: These are two kinds of limitations upon
the parliamentary sovereignty:- (i) The alleged or supposed limitations and (ii) real or actual
limitations.
I. Alleged or Supposed Limitations: There are three alleged or supposed limitations on
the Sovereignty of Parliament:
a. Principles of Morality and International Law: An Act of Parliament is invalid if it
is oppose to the principles of morality or to doctrines of International law.
b. Royal Prerogatives: In many fields the royal prerogatives operates and the
sovereignty of Parliament is excluded.
c. Acts of Previous Parliaments: It is said that no Parliament can bind subsequent
Parliament; but contrary to this rule, it is alleged that the enactments of one
Parliament are so framed as to make the statute permanent and operative for
all times to come. Political expediency and sagacity may not allow to a
Parliament to interfere with Acts passed by previous Parliaments.
II. Real or Actual Limitations: Though there are no legal limitations on Parliamentary
sovereignty, there are some which may be called as the most obvious limitation on
Parliamentary supremacy. These are grouped into two as under:a. External Limitations: The sovereignty of Parliament is subject to the force of the
people. This is because ultimately the power of the sovereign rests with the
people. There is always a possibility that once a limit is crossed, people will
disobey.
b. Internal Limitations: The Parliament, even being empowered to do, cannot
legislate against the will of people. For instance, if a legislature decided that all
blue-eyed babies should be murdered, then obviously nobody would obey it.
Thus all Acts rest upon the willingness of the people to obey them and no
authority however despotic can neglect the assent of the people.
BRITISH CONSTITUTIONAL CONVENTIONS
British Constitutional Conventions are the most important source of English Constitution.
They consist of undertakings, usages, habit or practices, which regulate the conduct of
members of ministry and other officials. The most of the political values and practices are
rooted in these political usages. They are not law as they are not recognized by, or enforced
in, the Court, but still they are highly respected. As regards the value of the conventions; it
would be enough to say that these have enabled the English political system to adopt itself to
the changing needs of time and acquired the force of customary law.
British Constitutional Conventions refer to the practices through which members of
the sovereign body exercise their discretionary authority, whether it is termed as the
Prerogatives of the Crown, or the Privileges of the Parliament. (a) Prerogative refers to the
kind of action which can legally be taken by the Crown or its servants, without an act of
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Parliament. (b) Privilege refers to the customs which determine the mode in which either or
both houses of the Parliament shall exercise their discretionary power.
SIR IVOR JENNINGS stated that, “Constitutional Conventions provide the flesh which clothes
the dry bones of law”. ALBERT VENN DICEY views that, “…conventions, understandings,
habits of practices which, though they may regulate the ….. conduct of several members of
the sovereign power …. are not in reality laws at all, since they are not enforced by the
Courts”. MARSHALL AND MOODIE defined these conventions as “rule of constitutional
behavior which are considered to be binding by and upon those who operate the constitution
but which are not enforced by the law courts, nor by presiding officers in the Houses of
Parliament”. HENRY BARNETT argued that, “Constitutional Conventions form the significant
class of non-legal constitutional rules. A clear understanding if their nature, scope and
manner of application is essential to the study of the UK’s constitution”.
These Conventions are mostly unwritten but sometimes Conventions are recorded in
writing, i.e. the Cabinet Manual, the Ministerial Code, etc. Similarly, Conventions are often
thought of as evolving over time but sometimes they can be created at a specific moment in
time, i.e. the Salisbury Convention.
AIMS OF CONVENTIONS: The aim of the Constitutional Convention is to ensure the
supremacy of the House of Commons and ultimately of the Nation.
OBJECTS OF THE CONVENTIONS: The object of the Constitutional Convention is:a. To make the constitution work in conformity with prevalent and changing ideas and
needs;
b. To provide rules for the cooperation and harmonious working of the different parts of
Government; and
c. To secure the administration of the country strictly in accordance with the wishes of
the people.
KINDS OF CONSTITUTIONAL CONVENTIONS: The Conventions of the English Constitution can
be classified into three classes as under:1. Conventions relating to Cabinet: The whole Cabinet system is a product of
conventions. The Constitutional history of England declined the powers of King and
grown the powers of Cabinet. Some of the important conventions relating to Cabinet
system are as under:a. The Ministers must be the members of Parliament.
b. The Prime Minster must be the leader of the majority party in the House of
Commons and the ministers must be appointed on his advice. He will also
distribute the portfolios among the ministers.
c. The Prime Minister alone can request the Queen to dissolve the House of
Commons.
d. The Ministry must either resign, or it can make appeal to the electorate, if it
loses the confidence of the House of Commons.
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e. The Ministers are collectively responsible to the House of Commons.
f. The Queen will always act on the advice of the Cabinet.
2. Conventions relating to Parliament: The Conventions relating to the Parliament
specially refer to the relation between two Houses. These are the following:
a. The Parliament is bicameral, comprising of the House of Commons and the
House of Lords.
b. All the money bills will be initiated in the House of Commons.
c. The Parliament must meet atleast once a year.
d. Every bill shall be read thrice before finally voted upon.
e. A speech from the government in the Parliament is to be followed by a speech
from the opposition.
f. If the member of the majority party is to be absent on any working day of
Parliament when division of voting is to take place, he inform the whip who
finds out from the opposition whether or not any member from its party is to
be absent. This is called pairing convention.
g. The Government will not initiate legislation of a controversial nature without
specific mandate from the electorate. This is known as Mandate Convention.
3. Conventions relating to Dominions: These Conventions govern the relation of Britain
with other Dominions. These are as under:a. Every Dominion, more or less, is to be regarded as an independent country
both in internal as well as external affairs, though a nominal allegiance to the
Queen is to be paid.
b. Any alteration is law touching the succession to the throne must require the
assent of Parliaments of Dominions.
c. The rules for making treaties by any Dominions are still matters of conventions
as mentioned in the reports of the Imperial Conference 1923, 1926 and 1930.
The Stature of Westminster, 1931 has embodied is a legal form most of the
conventions of the conventions relating to the Dominions.
SANCTION BEHIND CONVENTIONS: These conventions are not law as they are not
recognized and enforced by the Court incase of their breach. Then, the question arises as to
why do the people obey them? To answer this questions, following sanctions are concluded
behind the conventions:
1. Force of law: According to Dicey, the Conventions are obeyed because they are based
on and sanctioned by law, and if, the conventions are not observed, it will almost bring
the offenders into conflict with the courts and the law of the land. For instance, there
is a convention that the Parliament has to meet atleast once in a year, suppose if the
Prime Minister does not summon the Parliament for two years, then no budget will be
passes and no taxes with be collected.
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2. Respect for conventions: Lowell says that, Conventions are observed because they are
a “Code of Honour”.
3. Public Opinion: Ogg says that, the force behind the Conventions is the force of the
public opinion. The public wants their observance and it will not tolerate their
violation. For example, public expects a Cabinet to leave office when it has lost the
confidence of the Parliament.
According to Dr. Jennings, obedience is based on general acquiescence and not upon
force. If the people do not want to obey them, no amount of force can compel them to do so.
ROYAL PREROGATIVES
Royal prerogatives may be defined as “The special rights, powers, and immunities to which
the Crown alone is entitled under the common law”. It does not include the powers exercised
by him by virtue of a parliamentary statute. These prerogatives are created for the benefit of
the people and cannot be exercised to their prejudice. The Court has jurisdiction to inquire
into existence or the extent of any alleged prerogative. Actually, royal’s prerogative is residue
of discretionary or arbitrary authority, which is left in the hands of the Crown. It other words,
the Crown’s prerogative is much restricted as such he cannot claim any prerogative which is
against to common law, or any act of Parliament, or the liberties of the subjects. The exercise
of prerogative rights is regulated by the conventions of the constitution.
CLASSIFICATION OF ROYAL PREROGATIVES: Royal’s Prerogatives may be classed into: (1)
Personal Prerogatives and (2) Political Prerogatives.
1. Personal Prerogatives: The personal prerogatives of the Crown are exercised by
herself. There are seven personal prerogatives of the Crown as under:i. The King can do no Wrong: This is one of the prerogative of the King which has
two-fold meanings: (a) No proceedings known to law can be initiated against
the King; (b) No one can plead the orders of the Crown in defense of any act
that is otherwise not justifiable by law.
Firstly it refers to the legal immunity of the sovereign as the law provides
no procedure by which sovereign is made personally responsible for any act
done by him. Thus, he cannot be tried in any Court of England. Secondly, no
person can plead the orders of the Crown as justification for an illegal act. He is
not responsible for the acts done in his name. If any officer commits any crime
under the orders of the Crown, it is the officer who will be held responsible and
punished by the Courts of England for such an offense.
ii. King Never Dies: The King has the attribute of immorality. The demise is
immediately followed by succession without any interval. The Sovereign always
exists, the person only is changed.
iii. The King is God’s Minister on Earth:
iv. Time does not run against the King:
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King’s right is Dominant: When the right of the King and that of the subject
conflict, the subject’s right must give way to that of the King. Thus, where the
King and his subject are joint owners, the King takes the whole.
vi. Not bound by Statute: The King is not bound by statute unless expressly named
therein.
vii. King is never an Infant: The King is never an infant. Royal grants and statutes
assented by an infant King are valid.
2. Political Prerogatives: Political prerogatives of the Crown are exercised by the Cabinet
in the name of the King and the Cabinet being the mouthpiece of the people, the
prerogatives of the Crown have ultimately become the privileges of the people. Royal
prerogatives of the Crown are further divisible into: (a) Domestic Royal Prerogatives
and (b) Foreign Royal Prerogatives.
a. Domestic Royal Prerogatives: Domestic Royal Prerogatives are as under:i. Administrative Prerogatives: Administrative prerogatives of the Crown
include the creation of press; the creation of corporations, the
appointment and dismissal of Ministers and other Government officials,
headships of Army, Navy and Civil Service.
ii. Judicial Prerogatives: The King is considered as fountain of justice and
general observer of the peace of the Kingdom. In this capacity, the King
has the right of erecting Courts of Justice and criminal proceedings run in
the King’s name. He also has the prerogative of mercy, which has two
elements: to grant pardons and to stop legal proceedings against an
individual (nolle prosequi). Firstly, pardon is granted on the advice of
Home Secretary, through which he can pardon all offenders against
criminal law either before or after conviction. This prerogative cannot be
exercised (a) incase of impeachment by the commons in Parliament; (b)
incase of committing any person to prison out of the realm country
contrary to the Habeas Corpus Act; and (c) where pardon would inflict
injury on an innocent person. Secondly, granting nolle prosequi is done
by the Attorney General of England and Wales (or the equivalent in
Scotland or Northern Ireland) in the name of the crown, to stop legal
proceedings against an individual.
iii. Ecclesiastical Prerogatives: by virtue of these, the King appoints high
ecclesiastical officers.
iv. Legislative Prerogatives: The King summons, prorogues the sessions of
Parliament and is empowered to dissolve the Parliament on the advice
of the Prime Minister. The King has the prerogative of giving royal assent
to the bills passed in the Parliament. Moreover, he is empowered at
common law to legislate for conquered and ceded colonies also. He also
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has statutory powers of legislating by Orders-in-Council for settled
colonies.
b. Foreign Royal Prerogatives: The King is the sole representative of the nation in
international dealings. It is his prerogative to make treaties; to cede territory; to
make war and peace; to recognize the status of a foreign country or of its
government; to appoint representatives of his own country abroad and to
receive the representatives of other States.
BRITISH CABINET
The Cabinet in UK is the real executive authority which enjoys decision making powers not
only in administrative matters but over legislation as well. It is a group of about 22 members
of Parliament led and chosen by Prime Minister on the advice of King or Queen.
Theoretically, it is merely a committee of the Parliament; in practice it wields almost
doctorial powers. The Cabinet consists of those ministers who are incharge of different
portfolios and belong to the majority party in the Parliament. They retain power until they
command the confidence of the Parliament otherwise they have to resign. According to Sir
John Marriot, “It is a pivot around which the whole machinery of the State revolves”. Lowell
defined it as, “the keystone of the political arch”.
EVOLUTION: Due to unwritten character, the British Constitution has no provision of the
Cabinet System. The Cabinet has assumed its present form after an evolutionary growth. In
11th century, King William established an inner council of officials for the continuous for of
administration, which came to be known as “Curia Regis” or “the Permanent Council”.
Gradually, a smaller and more efficient body “Privy Council” grew out of it. The Privy Council
advised and helped the King in daily work of administration. During the Stuart dynasty, as the
size of the Privy Council became very large rendering it ineffective, a branch of this Council
comprising of five members was formed by King Charles-II and named it as “CABAL” from the
first letter of each member’s name. It consisted of the ministers nominated by Monarch from
amongst the members of Privy Council. The functions of ministers were confined to advice
the ruler in day to day administration and they performed basically advisory role in policymaking.
After the Glorious Revolution of 1688, a practice developed by King William-III to take
the ministers from Parliamentary majority party as previous the selection of ministers from
more than one party could not work efficiently. However, King William and Queen Anne
personally presided the meetings of the Cabinet, thus the office of the Prime Minister has not
arisen by this time. During the period of King George-I, a German prince, would abstain from
attending Cabinet meetings since he did not know English. This paved a way for the
emergence of leadership within the Cabinet ranks. Thus, King George-I commissioned Robert
Walpole to preside the meetings of Cabinet and inform the King about all important
decisions. Robert Walpole held this position of 1st Prime Minister not only due to King’s
favour but also being a recognized leader of dominant party in the Parliament. He began to
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preside the meetings of Cabinet and so also served as the leader of the House of Commons.
He held this position until he commanded confidence of majority in parliament and
thereafter resigned. This office, like other English institutions grew gradually into its present
form and got official recognition in 1917. By the 19th century, the Cabinet system became
crystallized explicating that: the ministers must be the members of Parliament; they must
have majority in the House of Commons and; they should belong to the same party and work
under the leadership of Prime Minister. In 20th century, the practice the Prime Minister
should belong to House of Commons established. The Ministers of the Crown Act, 1937 gave
legal sanction to the institution of the Cabinet. Ascendency of the Prime Minister over other
ministers got established in 1937 when his salary and allowances were fixed on higher level
than that of his Cabinet colleagues. Gradually, the Cabinet gained more and more power with
the growth of other democratic practices and became the pivot of British Administration.
FEATURES OF THE CABINET: Following are the features of the Cabinet:
1. Membership of the Parliament: All the members of the Cabinet are supposed to be
the members of either house of the Parliament. If a non-member is included in the
Cabinet, he is later either made Peer or within a period of six months got to be elected
as a member of House of Commons.
2. Political Homogeneity: As the Cabinet has to work as a team, normally like-mined
persons are included in it so as to preserve political homogeneity. Even in differences
arise, these are resolved within the meetings and are not let known to the public. That
accounts for the working of collective responsibility. Due to the absence of this
element in the working of a coalition government, parliamentary system gets a setback.
3. Coordination between Government Branches: The cooperation between Cabinet and
Parliamentary majority is inevitable. Thus, the Parliament not only controls
administrative policy-making but also has firm grip over legislation. Following two
conventions act as supportive values to this effect:
a. Leader of the majority party is invited by the Queen to form the Cabinet.
b. Every minister is supposed to be a member of either House of the Parliament.
4. Queen’s Exclusion from the Meetings: According to long-lasting convention
established in 1714, the Monarch does not participate in Cabinet meetings and these
are presided over by Prime Minister. The Prime Minister informs the Monarch about
all important decisions. This principle of exclusion of Queen from the meetings of
Cabinet has made the Cabinet responsible to the Parliament.
5. Responsibility of the Cabinet: The principle of responsibility of the Cabinet is
threefold:
a. Responsibility to the King: Theoretically, all ministers are legally accountable to
the Queen and as such they remain in power during the pleasure of the ruler. It
is the duty of the Cabinet to inform the Queen informed regarding all its
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decisions. Moreover, legal responsibility of the Cabinet implies that every royal
order must be countersigned by any of the minister as to make the latter
accountable for it in the Court of law.
b. Responsibility towards its own Members: All ministers work in close
collaboration and work as a team. Every minister has the right to advise his
Cabinet colleagues even on matters relating to the departments other than
those of his own.
c. Responsibility to the House of Commons: Politically, Cabinet is accountable to
the Parliament which means that ministers remain in power so long as they
command the confidence of the majority in the House of Commons. It is not
binding that the Cabinet must resign on an adverse vote in the House of
Commons. Instead, it may continue in the office and advise the king to dissolve
the Parliament and hold a general election.
6. Collective Responsibility: The Cabinet is collectively responsible to the Parliament. Its
responsibility is joint or undivided. It means that every minister is responsible for all
the decisions taken in Cabinet meetings and every minister shares this responsibility.
The principle of collective responsibility has paved the way for promoting
homogeneity within the Cabinet and enhancing its powers. For instance, a competent
finance minister may have to suffer due to any mistake of Foreign Minister. Collective
responsibility means that the Cabinet defends its policies on the floor of the House as
a team. For instance, if foreign policy is under fire, it is not merely the task of foreign
minister to defend it rather any of his Cabinet colleagues may come for his rescue.
Thus, if a vote of no-confidence is passed against any of the ministers, the whole
Cabinet will fall.
7. Secrecy in Meetings: All the proceedings of the Cabinet meetings are kept secret and
the differences within Cabinet are not let known to the people. The differences, if
leaked out, can possibly be exploited by the opposition. Leaking in its policy-decisions,
especially those relating to the taxation policy, may prove harmful from National point
of view.
8. Ascendency of Prime Minister: All the members of the Cabinet stand on equal footing;
the Prime Minister, however, performs pivotal role in the functioning of the Ministry.
He coordinates the work of different departments. To preside over Cabinet meetings,
prepare lists of the persons to be included in the Cabinet, remove any minister and
finally to undertake an overall supervision of administrative departments, is the
responsibility of the Prime Minister. Incase of resignation of the Prime Minister, the
whole Cabinet has to resign. In short, the Prime Minister is central to its formation,
central to its life and central to its death.
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ROLE OF THE CABINET: There has been tremendous increase in the powers of the Cabinet for
the past few decades. Its functions have not been confined merely to the execution of laws, it
keeps firm grip over legislation as well.
1. Executive Powers: The British Cabinet is the real executive which wields the whole
executive authority of the Crown. Its primary and most important function is to
formulate and execute administrative policies. Every member of the Cabinet is the
head of an important portfolio; while the Cabinet, as a whole, supervises the work of
all departments and maintains coordination among them. The Cabinet is accountable
to the Parliament for the working of the whole administration. The Cabinet exercised
all the powers of Crown relating to foreign affairs and as such appoints ambassadors
and negotiates treaties with foreign nations. It decides about the questions of war and
peace and formulates an effective foreign policy. The ruler acts on the advice of the
Cabinet regarding the appointments of the official armed forces. In short, practically,
all the prerogatives of the Crown are exercised by the Cabinet. Thus, increase in the
legal powers of the Monarch has indirectly resulted in enhancing the role of the
Cabinet.
2. Legislative Powers: Due to the absence of “Separation of Powers” in the working of
the government, the Cabinet plays a dominant role in legislation. Ministers virtually
guide and control the legislation as they actively participate in the deliberative
process. Most of the legislative proposals are initiated as government bills which has
the support of majority party at their back, thus they are normally passed. The Cabinet
also advises the ruler in connection with the issuances of the ordinances and decrees.
The heads of different portfolios, while interpreting and explaining the statutes make
new rules and regulations known as delegated legislation, necessary for their
execution. The Prime Minister advises the Queen regarding the summoning,
prorogation of the sessions of the Parliament and its dissolution. He prepares the
agenda of the Parliamentary sessions and decides about the rules of procedures in
collaboration with the leader of the opposition.
3. Control over Finance: The Cabinet has firm grip over preparation of annual budget.
Practically, it has the sole power to decide about questions of income and
expenditure. Since the Cabinet enjoys support of Parliamentary majority, its fiscal
policy makes its way successful in the Parliament.
4. Judicial Powers: The heads of administrative departments enjoy quasi-judicial powers
in respect of their departmental affairs despite the presence of judicial system bases
on “Rule of Law”. The head of the judicial establishment is the Lord Chancellor who is
an important member of the Cabinet. The Cabinet has the power to make policy
decisions about the judicial establishment. Judges are appointed by the Queen on the
advice of the Cabinet.
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THE PRIME MINISTER: The Prime Minister holds pivotal position right from its formation till
its ultimate fall in a Cabinet form of Government. Theoretically, all ministers stand equal, but
in practice, the Prime Minister is most effective and powerful as he can ask any minister to
resign. According to Sir William Harkot, Prime Minister is the foundation stone of the Cabinet
arch.
Origin: The office of the Prime Minister, like other English institutions, has an evolutionary
growth. Its origin can be traced back to the Period of George-I when he abstained from
attending the meetings of the Cabinet being unaware about English language. Informally, this
office originated during Hanoverians period and Robert Walpole has been regarded as the
first Prime Minister. This term appeared for the first time in public records in 1878 and later
in the starting articles of the Treaty of Berlin. It was legally recognized in 1937 Act, under
which the salary of the Prime Minister was fixed.
Position in the Government: The Prime Minister holds domineering position in the Cabinet
and the whole machinery of the government revolves around him. This can be well explained
under the following headings:
1. Formation of the Cabinet: The primary function of the Prime Minister is to make the
government. Being the leader of the majority party in the House of Commons, he is
called by the Queen to form the Ministry. He can request any of his colleagues to
resign if he thinks that his presence in the Ministry is prejudicial to the efficiency or
stability of the government. He can also advice the Queen to dismiss a Minister. In
short, the Prime Minister is the keystone of the Cabinet arch and can make or unmake
the Cabinet in any way he likes.
2. Head of the Cabinet: Being the head of Cabinet, the Prime Minister summons,
supervises the meetings of the Cabinet and coordinates the work of different
ministers. He decides the agenda of the meetings and it is for him to accept or reject
proposals made its members for discussion. He performs pivotal role in the formation
and working of the Cabinet. His opinion carries weight in the cabinet meetings and as
such he can resolve the differences among the ministers. He may take decisions
independently or in consultation with few ministers. Under unfavourable
circumstances, the threat to resign on the part of a Prime Minister is useful technique
to seek full cooperation of his Cabinet colleagues, as it particularly implies the fall of
Cabinet.
3. Leader of the House: The Prime Minister belongs to the majority party in the House
of Commons and acts as the leader of the House. The Queen decides to summon,
prorogue or dissolve the Parliament on his advice. He makes authoritative statements
and explanations of the government’s policy; speaks on most important bills; and at
crucial stages also bears the brunt of debate from the government benches. In fact,
the house always looks at him as the fountain of policy. As a leader of the house, he
enjoys certain privileges on the floor of the house. He is given more time to speak
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during the deliberations. All members of party in the House look at him for guidance,
as he is responsible for maintaining discipline within the party lines.
4. National Leader: The Prime Minister is not merely a leader of the House of Commons
but also serves as national leader due to his most prestigious position. His opinion on
important national issues is paid due heed. His statements and speeches are regarded
as the most effective channels for molding public opinion.
5. Power of Dissolution: The Prime Minister is the only person who is authorized to
advice the Queen to dissolve the House of Commons and hold general elections.
6. Channel of Communication: The Prime Minister acts as the link between Cabinet and
the Queen. He keeps her informed about all important decisions of the Cabinet.
Theoretically, every member ha access to Queen, but in practice, it is the Prime
Minister who informs her about all administrative affairs.
7. Chief Advisor of the King: The Prime Minister is also the chief advisor of the Queen.
He advises the Queen in matters of appointments and on other matters of national
importance. The Queen makes important announcements on the advice of the Prime
Minister. He can render any advice to the Queen without even consulting the Cabinet.
The speech from the throne to be delivered in the beginning of new session of the
Parliament, is also prepared by the Prime Minister.
8. Conduct of Foreign Affairs: The opinion of the Prime Minister carries special weight in
foreign affairs. Secretary of Foreign Affairs, in particular remains in continuous touch
with the Prime Minister. The Prime Minister represents the country in important
international conferences.
FORMATION OF THE GOVERNMENT: The Government of United Kingdom is formed through
following steps:
1. Nomination of the Prime Minister: In the first session of newly elected House of
Commons, the Monarch invites the leader of the Majority party to form the
government. If incase no party commands clear cut majority, she may resort to her
discretion and ask any leader to form the government.
2. Selection of Ministers: After being invited, the first and the foremost task of the Prime
Minister is to prepare a list of the Ministers and to get royal assent to it. Theoretically,
the choice of Ministers belongs to the Monarchy, but in practice, the Queen remains
impartial and indifferent in this regard. Outwardly, the Prime Minister has a free hand
in the choice of his colleagues but he is also under practical and legal constraints,
which are as under:a. Membership of the Parliament: Every Cabinet Minister is supposed to be the
member of either House of the Parliament. In-case a non-member is appointed
as minister, such person got to be nominated as a peer or elected as a member
of House of Commons in bye-election, within a period of six months.
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b. Representation of Both Houses: According to Minister’s Crown Act, 1937, only
few ministers are taken from House of Lords while a large number belong to
the House of Commons. Normally, at least three cabinet minister and three
parliamentary secretaries belong to the House of Lords and not more than
seventy ministers, according to a rule of 1957, can be taken from the House of
Commons, in which the number of senior ministers should not exceed twenty
seven in the whole ministry.
c. Other Considerations: Apart from legal requirements, there are many other
practical aspects which the Prime Minister has to keep in view in the choice of
ministers. He has to consider that all regions of the state and all wings of the
party get due representation in the Cabinet. Proficiency and expertise are the
other considerations in this respect.
3. Total Strength: Four or five types of ministers are included in the Ministry. It is the
sole discretion of the Prime Minister to assign any portfolio to any of the Cabinet
Ministers. Moreover, he has to decide which of the administrative department should
be put under the control of the Cabinet-rank Ministers and determines the total
strength of the Cabinet.
4. Royal Assent: After preparation of the list of Ministers, the Prime Minister submits it
for royal assent. Legally, the Queen can objection against the inclusion of any member
in the Ministry or suggest a few more names, but normally, she remains indifferent
and gives her approval, for the responsibility of administration belongs to the Cabinet.
THE PRIVY COUNCIL: The Privy Council of England was a body of advisers to the sovereign of
the Kingdom of England. The Privy Council is an offshoot of Curia Regis or “the Permanent
Council” established by King William for the continuous for of administration. The Privy
Council advised and helped the King in daily work of administration.
Composition: The Privy Council consists of 300 members including Arch Bishops of
Canterbury and York and certain other distinguished persons. All Cabinet rank ministers, exministers and the Speaker of the House of Commons are its life-members. The Queen can
remove any member in her discretion or through issuance of ‘Order in Council’. All members
are entitled to be called ‘Right Honourable”.
Meetings: The Privy Council usually meets at the Buckingham Palace once in two or three
weeks. It rarely holds meetings because it has lost most of its powers and functions to the
Cabinet. The Lord President is always in meeting and presides over the meetings. Sometimes
the Queen attends the meetings, but her attendance is not essential. It holds, however, its
regular meetings but the attendance normally does not exceed from four to five. As a whole
the Privy council rarely meeting on ceremonial occasions coronation etc.
Powers and Functions: After the consolidation of Parliamentary system, Privy Council has
lost its significance and mostly it performs ceremonial functions. Nevertheless, its judicial
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committee is still an active body. Ail ministers and other public officials take oath of office
before the council. To discharge its judicial duties, it appoints Sheriffs.
Important decisions regarding the discretionary powers of the Monarch are taken in
the meetings of Privy Council and ‘Orders in Council’ passed. It is due to the performance of
such functions that the Council holds still some importance. More than 600 ‘Orders in
Council’ are passed every year and this number further increases during war-period.
Privy Council has different committees, but only important one is judicial committee
which was formed in 1833 under a statutory provision. It consists of judges while Lord
Chancellor is also its member. The function of this committee is to give recommendations to
the Council over matter relating to Royal’s judicial authority. Privy Council enjoys appellate
jurisdiction against the decisions of the courts. The other committees of Privy Council are
Committee on Agriculture Research, Committee on Medical Research, Committee on
Scientific and Industrial Research, etc.
SR
1.
2.
3.
4.
CABINET
The Cabinet is smaller body selected by
Prime Minister among the members of
Parliament.
It is a sub-part of Ministry and all the
members of Cabinet are members of
Ministry.
Their function is to execute the policy
formulated by the Cabinet.
MINISTRY
Ministry is wider in its composition including
all the servants of the Crown who are the
members of Parliament.
It includes Cabinet in itself and all the
Ministers are not the members of Cabinet.
They can also affect policy making by virtue
of their membership of different committees
of the Cabinet.
The Cabinet is collectively responsible to All the members of ministry, including those
the Parliament.
of the Cabinet, are collectively accountable
to the Parliament.
BRITISH PARLIAMENT
British Parliament is called ‘Mother Parliament’ as being the earliest of the modern
Parliaments. It is the supreme law-making body of United Kingdom. To make laws or alter the
existing laws, impose taxes and deciding about the questions of war and peace are the
exclusive concerns of the Parliament. British Parliament is regarded as the real sovereign in
British Constitutional system and the constitutional validity of the laws enacted by
Parliament cannot be challenged in any court of law. Apart from this, it can effectively
control the executive. It is also fully authorized to bring fundamental changes in the
governmental structure, even to abolish monarchy. According to Dicey, there is no issue or
any institution about which the Parliament can do no legislation.
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Composition: The British Parliament consists of the Monarch and two chambers: the Upper
house known as the House of Lords which is basically hereditary one; where the Lower House
known as House of Commons which consists of directly elected representatives. The House
of Commons is more popular and powerful chamber as compared to the House of Lords.
These two houses meet at the Palace of Westminster.
Evolution: The roots of British Parliament can be traced back to Anglo-Saxon period in 8th
century. Previously, the King was aided by a small council of “Witan” or “Witenagement” or
“the council of wise-men” comprising of Clergy-men, Land-owning Barons and other advisors
chosen by the King to discuss the matters of State, taxation and other political affairs.
After the Norman Conquest, King William reconstituted this council with the name of
“Magnum Concilium” or “the Great Council” expanding it to include more advisors. The first
English Parliament convened in 1215 with the creation and signing of “The Magna Carta”
which established the rights of Barons to serve as consultants to the King on governmental
matters in his Great Council. This Great Council was first referred to as ‘Parliament’ in 1236.
Later on, in 1265, Simen de Montfort summoned a Parliament, to which he invited two
knights and two burgesses from each town. Subsequently in 1295, the famous Model
Parliament of Edward-I established the practice of calling the burgesses together with the
knights, the clergy and the barons. Thus, in the beginning, the Parliament met in three
groups:
a. One representing the nobility;
b. Second representing the clergy; and
c. Third representing the commoners.
Gradually, the higher Clergy sat with the Lords, the lesser Clergy withdrew and the lesser
Nobility sat with the Commoners. Consequently, by the end of the 14 th century the system of
two chambers took place.
THE HOUSE OF COMMONS: The Lower House known as the House of Commons consists of
650 members who are directly elected on the basis of adult suffrage, from single member
constituencies of four countries, viz. England, Scotland, Wales and Northern Island.
Summoning and Prorogation of the Sessions: The Queen summons, prorogues the sessions
of the Parliament on the advice of the Prime Minister. The Parliament meets alteast once in a
year as the fiscal laws remain operative for a period of one year only and these are to be
enacted afresh for the year. The Parliament normally remains in session from November to
November with different intervals in the form of national holidays and a long summer recess.
The total duration of sessions does not exceed tow hundred days per year. A speech from the
thorne is read at every new session.
Quorum: The presence of at least 40 members constitutes the quorum in order to carry on
the business of the House.
The Speaker: After the general elections, the first task of the new House of Commons is to
elect the Speaker, who presides over the House of Commons. The office of the Speaker of the
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House of Commons is regarded as the most prestigious after that of the Prime Minister. It is
difficult to trace the origin of the Speaker as it existed even at a time when this House was
not really a legislative chamber. It seems to have simultaneous growth along with that of the
Parliament. At present, the Speaker is elected by the House of Commons while the Queen
formally gives her assent.
Powers and Functions of the House of Commons: The ‘Supremacy of Parliament’ practically
implies supremacy of the House of Commons. The powers of the House may be discussed as
under:1. Legislation: The primary function of the House is to enact laws and make alterations in
the existing laws as per the changing conditions. Once upon a time, both houses
enjoyed equal power but under 1911 and 1949 Acts the powers of the Upper House
are curtailed. This House enjoys unlimited legislative powers since the bills passed by
the house are neither rejected by the House of Lords nor vetoed by the Queen nor
declared void by the Courts.
2. Control over Executive: Cabinet, the executive body, is merely a committee of the
house and most of the ministers are members of the House of Commons. They retain
power until they command confidence of the majority in the house. The House of
Commons maintains its control over executive in two ways: (i) by seeking information
about the actions of government and (ii) by criticizing the policies of the government.
3. Control over Finance: Under 1911 Act of the Parliament, the house got complete hold
over fiscal matters. Accordingly, all the money bills originate in the House of
Commons. The approval or disapproval of House of Lords does not matter if the
period of one month has elapsed since the passage of money bills in the House of
Commons, the house sends it to the Queen which becomes an act on receiving assent.
In short, the power of House of Commons over money bills is complete and decisive.
4. Ventilation of Grievances: An important function of the Commons is to intimate the
policy-makers about public demands and get their grievances redressed. By asking
different questions, the Parliamentarians bring into notice of the government matters
concerning public interests.
5. Selective Functions: Debates in the House of Commons is an effective channel of
imparting political training to its members. It is a forum where talented members can
demonstrate their capabilities, hence can make themselves distinctive from ordinary
members. Such persons may be included in the ministries or assigned other important
duties.
6. Public Education: Free and frequent deliberations on the floor of this chamber, help in
educating general public, since the proceedings are reported in newspapers. The press
gives full coverage which generates public interest in political affairs. People, on the
other hand, also express their view point over the issues raised in the Parliament.
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Role of Opposition: Opposition performs a vital role in the success of democracy. In the
presence of divergent viewpoints, it becomes easier to arrive at realistic and appropriate
decisions. The opposition criticizes the government policies and present alternate solution to
the problems. According to Jennings, opposition is indispensible part of the Parliament. It is
held in esteem and officially named as “Her Majesty’s Opposition”. Opposition leader
controls his party whip and in collaboration with the leader of the House of the House, makes
important decisions regarding Parliamentary meetings. Opposition benches are on the left
side of the Speaker while treasury benches are on the right side. Important functions of the
Opposition are as under:1. Substitute Leadership: The primary function of the Opposition is to provide substitute
leadership in case of failure of the government. Queen invites the opposition leader to
and asks him to form the government. Shadow Cabinet already exists in the
Opposition circles and it steps into the power under such conditions.
2. Check on the Government: Another major role of the government is to criticize and
scrutinize the policies of the government and bring lime-light shortcomings in the
administration. Government has to work under the constant watch of vigilant
opposition that keeps the government on its keel footing.
3. Positive Role: The Opposition’s role is not confined merely to the performance of
negative functions, it has to cooperate with the government in many ways. For
example, formulating rules of procedure of the House, affairs relating to business
sessions are settled in an environment of compromise and mutual trust. The
politicians on both sides, have full perception of national interest, they move with
caution and moderation and explore the areas of mutual cooperation. The Opposition
is expected to perform its due role within the constitutional means and never resort to
violence.
THE HOUSE OF LORDS: The Upper House known as the House of Lords consists of about 800
permanent members. This is a permanent chamber and organized basically in hereditary
principles. Total strength of the House keeps on varying due to the death of old members and
the appointment of new ones. The members of this house fall into seven categories as
explained below:
1. Members of Royal Family: Members of Royal family having specific age are made the
members of this House. Nevertheless, all persons having blood relations with the
ruling family are not given membership. They rarely attend sessions of the House and
do not actively participate in the deliberative process even if they happen to attend.
2. Hereditary Peers: Hereditary members of the House are known as Peers. The House
of Lords Act 1999 removed the entitlement of most of the hereditary Peers to sit and
vote in the House of Lords and of the 92 hereditary Peers who retain their seat in the
Lords, 75 were elected by their fellow hereditary Peers.
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3. Life Members: Under the Life Peerage Act of 1958, any citizen can be appointed as
member of the House of Lords for his life-time who rendered distinct services to the
national cause.
4. Scottish Members: Their number is sixteen and they are elected by the Scottish Peers
in accordance with the provisions of the Treaty of Union, 1707. All Scottish members
were made permanent members under Peerage Act of 1943.
5. Peers of Ireland: Before the independence of Ireland, Irish Peers use to return to the
House of Lords, 28 members from amongst themselves for life under “Act of Union,
1800”. But after the creation of separate Irish State vacant seats of the deceased
members were not filled. Consequently, their number gradually reached at
diminishing point.
6. Lords of Appeal: House of Lords is the highest Court of Appeal for all cases in England.
There are twelve Law Lords who are appointed by the Crown under the provisions of
the Appellate Jurisdiction Act, 1876 to assist the House in the performance of its
judicial functions. They hold their seats for life.
7. Spiritual Lords: There are twenty-six in number. Two are archbishops of York and
Canterbury and twenty-four are senior bishops of the Church of England. When a
sitting bishop dies or resigns, the one next on the list, in the order of seniority,
becomes the member.
Resignation: Under the enactment of a law in 1963, hereditary peers are entitled to resign
within a period of twelve months after their appointment.
Quorum: Legally the presence of only three members constitutes the Quorum of the
meetings. Normally, attendance is above three hundred. On ceremonial occasions, however,
there may be heavy attendance. Very few lords actively participate in its deliberations. It is to
be noted that the sessions of both houses are convened and prorogues simultaneously.
Powers and Functions: This House is less powerful that the House of Commons. Its powers
and functions are as under:1. Legislation: Once upon a time, both houses enjoyed equal power but under 1911 and
1949 Acts the powers of the Upper House are curtailed. Accordingly, if a bill has been
passed in three consecutive sessions of the House of Commons, such bill will be sent
for royal’s assent irrespective of royal’s assent. Moreover, if one year has elapsed
between the second reading of the first session and its third reading in the third
session of the House of Commons, it shall be sent for the approval of the Queen
without the authorization of the House of Lords. Thus, the final authority rests with
the House of Commons and the House of Lords has now lost all its effectiveness in
these fields.
2. Financial Legislation: Under the Act of 1911, if a money bill, after having passes by the
Commoners, is sent for the approval of the Lords and it does not give its approval
within a period of one month, it will be sent for the approval of Queen without the
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approval of the upper chamber. Moreover, it is the discretion of the Speaker to
declare any bill as money bill and his verdict shall be treated as final.
3. Judicial Powers: The House of Lords served as the final court of Appeal in Great Britain
before the establishment of Supreme Court of the United Kingdom in 2009
under Constitutional Reform Act 2005, Part 3, Section 23(1) and serial 23.
4. Executive Powers: The House enjoys share in the Cabinet. The Lords are empowered
to ask questions from the government and have a full right to debate its policies. It
may be noted that the Lords have no power to pass a censure against the ministry.
The Cabinet is not responsible to the House of Lords but it can only cross-examine the
ministers.
Reasons of Survival of the House of Lords: The British Parliament is bicameral legislature.
The upper house, however, not much powerful but seems to be a useful chamber. It
performs very useful functions without becoming a rival to the House of Commons. Lord
Bryce has very appreciably examined the role and functions of an ideal upper chamber as
detailed below:
1. Revision of Bills: The House of Lords revises the bills referred by the House of
Commons, examines a bill thoroughly and recommend useful alterations or other
proposals for its improvement. Thus this house enlightens the burden of the
Commons and assists them in the legislative process.
2. Effective Deliberations: The Peers can express their views frequently so as to help in
improving the quality of a bill. Consequently, the bills are thoroughly examined and
defects pointed out on purely merit basis.
3. Initiation of Bills: The Lords may, sometimes initiate bills of non-controversial
character such that they may have easy passage in the lower chamber.
4. Interposition of Delay: Examination of bill imposes delay, which sometimes
indispensable in the public interest. People get more time to understand the real
issues involved hence an express their views. Divergent views are floated through
press and electronic media as a help for the people’s representatives to keep
themselves well informed about the trends of public opinion.
5. Participation of Talented People: The ablest persons being unable to involve in
politics may be appointed as Peers, hence included in the Cabinet, rendering their
useful services for national cause.
6. Check on the Lower Chamber: Organization of this house is characterized with
continuity and permanence, and its overall posture is conservative. It acts as a useful
check on the turbulence of popular trends likely to appear in the Lower House. Hence
a spirit of moderation and progressiveness can be preserved in the working of the
political system.
Defects: In addition to numerous advantages of the House of Lords, it has certain
disadvantages as well. The very presence of a hereditary chamber in a democratic age seems
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awkward and undemocratic. An efficient and hardworking person may be succeeded by a son
of worthless character. Most of the peers show indifferent attitude towards their duties and
responsibilities as parliamentarians, and rarely attend the sessions. Only a microscopic
minority participates in deliberations. Most of the members are conservative and as such
they stand as a bulwark in the way of progressive legislation. That accounts for the
curtailment of their powers under Parliament Act of 1911.
THE COMMITTEE SYSTEM: Committees perform very useful functions in the working of a
modern legislature; they save its time and enlighten its burden of work. The committees
thoroughly probe into the matters over which legislation is pending and submit report
carrying proposals by the expert advice. The committee system emerged in 1882 under the
reign of Queen Elizabeth-I; bills were referred to the select committees after second reading.
These grew in importance after 1919 in the process of law-making. At present, five different
committees perform their functions in the Parliament. These are as under:1. Sessional Committees: Sessional Committees are constituted for the whole session,
each devoted to specific functions. For instance, “Committee on Selection” selects
members for standing committees. “Committee on Public Accounts” is also a sessional
committee which is responsible for overseeing government expenditures, and to
ensure they are effective and honest.
2. Committee of the Whole House: This committee consists of all the members of the
House. It differs with the House in respect of organization, procedure and functions as
detailed below:
a. The respective Chairman instead of Speaker, presides over the sessions of this
committee, while the Speaker takes chair of the clerk. The Chairman of this
committee is appointed in the first session of every new Parliament and he is
always the member of the majority party.
b. Mace, which is the symbol of Speaker’s authority, is put under the table,
indicating that the house is not in session.
c. To initiate any amendment or other proposals in such committee does not
need the support of other members.
d. Distinct method is employed to control debate in these committees.
e. Every member enjoys liberty to express his views for as much time as he cares
to speak since the procedure is comparatively less formal.
3. Standing Committees: Standing committees got developed after 1882. These are
constituted by every new Parliament in its very first session. At present, there are five
Standing Committees, and the fifth one is devoted specifically to all bills relating to
Scotland. The Chairman of the Standing Committees are appointed by a chairman
consisting of ten members, all nominated by the Speaker. British Standing Committees
can examines and consider any bill referred by the Speaker and are bound to report
the bill back.
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4. Select Committees: Select Committees are constituted from time to time to probe
into the matters over which legislation is pending. They are regarded as experts on
specific matters. They are also authorized to call for public record or witnesses. Such
committees are formed almost during every session of the Parliament. The examples
of such committees are: Committee on Privileges, Committee on Public Estimates, etc.
Every committee elects its own chairman and keeps the record of its proceedings.
After submission if reports to the House, the committees cease to exist.
5. Private Bill Committees: Private Bill Committees deal with private bills and their total
number depends on the number of private bills. It comprises of four members in the
House of Commons while five members in the House of Lords. Their procedure is
somewhat quasi-judicial. The committee men give patient and impartial, hearing to
the point of view of each party and are fully authorized to call for public records,
officials and evidence.
6. Joint Committees: Joint Committees are formed when both Houses of Parliament are
equally interested to legislate on a particular matter. Joint Committees are also a sort
of select committees as they cease to exist after having done their work. At present,
they are rarely constituted.
KINDS OF BILLS: With respect of their content, the bills can be classified into as under:1. Public Bills: A bill that deals with matters of public concern in general and relates to
national policy as a whole is termed as private bill. It includes all bills that affect the
organization and functioning of government institutions or relate to taxation policy.
2. Private Bills: Private Bills deal with a specific organization, community, or individual.
Certain public bills, however, can also deal with specific matters, known as Hybrid bills.
3. Government Bills: The bills are initiated on the floor of the House from Government
benches are known as government bills. All money bills fall under this category since
these are initiated by the government. It is to be noted that a government bill may be
public or private.
4. Private Member Bills: Private members bills are initiated by private members in their
personal capacity, irrespective whether these are public or private bills.
PROCEDURE IN RESPECT OF PUBLIC BILLS: Following procedure is followed in respect of
public bills:
1. Drafting of Bill: Drafting of a bill is somewhat technical matter for which government
hires the services of expert draftsman in order to avoid ambiguity and ensure clarity. A
government bill is prepared initially under the supervision of the Minister concerned
and later the whole Cabinet examines it thoroughly. Finally, it is submitted for
technical refinement to the draftsman who compiles it in a classified form.
2. Introduction of a Bill: Bills can be introduced in either house, but certain bills are
introduced in particular chamber of the Parliament. For instance, all bills relating to
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4.
5.
6.
7.
8.
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judiciary should be introduced in the upper chamber while money bills originate in the
lower house.
First Reading: Mover of the bill gives a notice to the Speaker for its introduction and
the date is fixed for its first reading. On the scheduled time, the clerk reads out the
title of the bill and there is no regular debate over it. First reading is no reading, it is
merely information to the public, press and all other concerned that such a bill has
been introduced.
Second Reading: Members get sufficient time to study and examine the bill
thoroughly before second reading of a bill. Date for second reading is fixed by party
whips. On the scheduled date, the mover of the bill requests for its reading and on
being permitted by the Speaker he explains underlying principles and objects of the
bill, which is followed by general discussion on the principles of bill and long speeches
are delivered on the floor. But discussion on details of the bills is avoided at this stage
nor amendments can be proposed, however, sometimes certain proposals coming
from the opposition benches are accepted. After exhaustive discussion vote is taken. If
it is affirmative, the bill is referred to a committee by the Speaker, if rejected it is
dropped.
Committee Stage: The bills approved during the second reading are referred to a
committee which thoroughly scrutinizes it. Since committees consist of few members,
the quality of discussion and debate is better and bills can be examined thoroughly.
Moreover, the committees enjoy many privileges and powers for the purpose of
holding exhaustive enquiry and examination of the bills. Mostly the bills are referred
to the standing committees while committee of the House is rarely used for this
purpose. Time for the submission of report is fixed so as to counteract the hurdles of
opposition members.
Report Stage: After the submission of committee report, a bill is taken up for the
consideration of the House. If the committee has proposed certain amendments, the
House may discuss the bill before its third reading. This is taken as the last stage for
proposing any alteration.
Third Reading: Only verbal amendments can be proposed at this stage and a little time
is spent on discussion. The House either approves a bill or rejects it as a whole. Incase
of sharp differences, however, lengthy discussion can take place on the principles of
bill. The bill has to be resubmitted for the consideration of committee if any alteration
has to be accommodated.
Approval by the Second Chamber: After having passes at its third reading, a bill is sent
for approval to the second chamber. As most of the bills originate in the House of
Commons, the Clerk sends them to the House of Lords, where it has to pass through
similar stages. Rule of amendment is the House of Lords are comparatively flexible and
amendments can be proposed at any stage. Under 1949 Act of Parliament, this
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chamber can delay the passage of a bill for not more than a period of one year.
Differences of both houses are resolved by a conference committee consisting of the
representatives of both the Houses, known as “Managers”. It explores the points of
agreement and tries to make a patch-up.
9. Royal Approval: After its passage in the both Houses of Parliament, a bill is submitted
for royal assent which is, in fact, a formality, since the Queen, according to a
constitutional practice, does not veto the bills.
PRIVILEGES OF THE PARLIAMENT
Parliamentary privilege grants certain legal immunities for Members of both Houses so as to
allow them to perform their duties without interference from outside of the House. These
are certain privileges that Parliamentarians enjoy in addition to salaries and allowances. They
are also paid conveyance allowance under the rules in addition to enjoying the following
privileges:
1. All M.Ps enjoy freedom of expression on the floor of their respective chambers and
none can be questioned in a court of law for the utterance in the Parliament. The
House can, however, take action against a member who does not behave properly.
2. Both the houses are fully authorized to make rules and regulations for the conduct of
business of the houses.
3. The houses can initiate impeachment of a member on grounds of serious guilt while
House of Lords sits as a Court for trial.
4. The House is authorized to impose, in the public interest, restrictions on the
publication of the report of the proceedings of the sessions.
5. The Speaker is fully authorized to ask any person sitting in the visitor’s gallery to
vacate.
6. The House can take action against a member who misuses the privileges secured to
him. For that purpose, the accused person can be expelled from attending the session
for one day or even for one full session.
7. Members of the House of Commons can ask questions and supplementary questions
from the ministers and get information about the working of their respective
departments. They can also initiate bills, different motions and move resolutions. By
criticizing the policies of the government the legislators can hold the government
accountable to the parliament.
FUNDAMENTAL RIGHTS AND THE HUMAN RIGHTS ACT, 1998
As defined by Professor Laski, Rights in fact are those conditions of social life without which
no man can seek, in general, to be himself at his best. Fundamental rights are the basic rights
of citizens that are recognized and protected by law.
LASKI ON LEGAL THEORY OF RIGHTS: Laski analyses the legal theory of rights. The central
theme of the legal theory of rights is that they completely depend upon the institutions and
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recognition of state. An individual cannot claim rights if those are not recognized by the
state. Moreover, mere recognition is not sufficient for the exercise of rights. The state must,
through law and institutions, implement the rights. Accordingly, if these two conditions are
not fulfilled, the individuals will have hardly any opportunity to enjoy rights. This legal theory
of rights was propounded by many including Hobbes and Bentham. Legal theory further
states that the law, in fact, determines the character and implementation of rights.
FUNCTIONAL THEORY OF RIGHTS: Professor Laski took rights as of functional aspect.
According to him, rights are correlative to functions. He further says that, “He that will not
perform functions cannot enjoy any more than he who will not work ought to enjoy bread”.
This theory stresses that an individual is entitled to claim rights only when he performs duty,
otherwise the claim or demand for right cannot be entertained. This definitely goes against
the widely known theory of legal theory of rights. Laski says that whether man will have
rights and what or how many rights he will enjoy depends not upon the state but upon the
person himself. Without doing any work a man cannot claim any bread. Similarly, without
doing any duty an individual cannot place any demand for right. Performance of duty
automatically entitles a man to demand right and the state in that case is bound to grant
right. But function is not enough. Any type of function must be socially useful so as to
enhance welfare of the society.
FUNDAMENTAL RIGHTS IN ENGLAND: The Constitution of is unwritten, hence fundamental
rights of the citizens are not incorporated in the British Constitution in the form of list.
Constitutional law is not the creator but a product of fundamental rights, which have been
recognized, from time to time, by the Courts. Hence most of the fundamental rights are
based on judicial decisions. The foundations of individual rights in England are almost
negative in the sense that an individual has the right and freedom to take whatever action he
likes, so long as he does not violate any rule of the law of the land. In the absence of any
written document, it is the duty of the Court to protect individual liberty by judicial decisions.
It has been maintained that the law of England is the law of liberty”. Some rights have been
recognized by the Parliament through enactment, such as the Magna Carta, Petition of
Rights, Bill of rights and Act of Settlement.
THE HUMAN RIGHTS ACT, 1998: The Human Rights Act, 1998 sets out the fundamental rights
and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the
European Convention on Human Rights (ECHR) into domestic British law. The Human Rights
Act, 1998 is an act of Parliament which received royal assent on 9 th November, 1998 and
finally came into force in 2nd October, 2000. The Act makes a remedy for breach of a
Convention right available in UK courts. Before the implementation of the Human Rights Act
of 1998, in 2000, anyone in the United Kingdom who wished to complain of a violation of
the European Convention on Human Rights (ECHR) had to take the case to the European
Court of Human Rights in Strasbourg, France. The convention rights, listed in Schedule 1 of
the act, are as follows:
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1. Right to life
2. Right to freedom from torture and inhuman or degrading treatment
3. Right to freedom from slavery or servitude
4. Right to liberty and security
5. Right to a fair trial
6. Right to no punishment without law
7. Right to respect for private and family life
8. Right to freedom of thought conscience and religion
9. Right to freedom of expression
10. Right to freedom of assembly and association
11. Right to marry
12. Right to enjoyment of the rights and freedoms without discrimination on any ground
13. Protection of property
14. Right to education
15. Right to free elections
FREEDOM OF EXPRESSION
Freedom of expression is defined under Article 10 of the Human Rights Act, 1998. It provides
as under:1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in a democratic society, in the interests of national security,
territorial disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.
Article 10 protects right to hold your own opinions and to express them freely without
government interference. This includes the right to express your views aloud (for example
through public protest and demonstrations) or through published articles, books or leaflets,
television or radio broadcasting, works of art, the internet and social media etc. The law also
protects freedom to receive information from other people by, for example, being part of an
audience or reading a magazine.
Although you have freedom of expression, you also have a duty to behave responsibly
and to respect other people’s rights. Public authorities may restrict this right if they can show
that their action is lawful, necessary and proportionate in order to protect national security,
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territorial integrity (the borders of the state) or public safety; to prevent disorder or crime;
protect health or morals; protect the rights and reputations of other people; prevent the
disclosure of information received in confidence; and maintain the authority and impartiality
of judges, etc.
This right is particularly important for journalists and other people working in the
media. They must be free to criticize the government and our public institutions without fear
of prosecution. This is a vital feature of a democratic society. But that doesn't prevent the
state from imposing restrictions on the media in order to protect other human rights, such as
a person's right to respect for their private life.
DROIT ADMINISTRATIF
Droid Administratif or Administrative law, as defined by French authorities, in general terms
as “the body of rules which regulate the relations of the administration or administrative
authority towards private citizens”. In other words, Droit Administratif is a
French Administrative Law, which is the body of rules that determine the organization,
powers and duties of public administration (administrative agencies and officials) and
regulate the relation of the administration with the citizens of the country. It protects public
servants from jurisdiction of ordinary law and courts as opposite to the concept of rule of law
where there is no differential of treatment of officials when committing illegal acts. The
matters are adjudicated by special tribunals known as Administrative Courts under special
procedure and special law. Droit Administratif or France and other countries where it prevails
is based on the idea that State rights are superior to individual rights. As defined by Albert
Venn Dicey in his “Law and Constitution, 1915), the administrative law in France deals with:1. The position and liabilities of State officials;
2. The rights and liabilities of ordinary citizens in their dealings with the officials as the
representatives of State; and
3. The procedure by which these rights and liabilities are enforced.
For instance, if a police officer in pursuance of orders, say from Ministry of interior,
wrongfully arrests a private person; the rights of the individual aggrieved and the mode in
which these rights to be determined are questions of administrative law.
CHARACTERISTICS OF DROIT ADMINISTRATIF: There are four important characteristics of
Droit Administratif as under:1. The legal relations of officials and public are governed by special rules different from
rules applicable to purely private relations of one private person to another. These
rules are not embodied, but are case-law; made not by the judges, but by Government
officials.
2. Dual Court system, i.e. Ordinary Law Courts and Administrative Law Courts, is
established to regulate these two sorts of legal relations.
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3. Incase of conflict regarding jurisdiction of these two courts, the decision of
Administrative Law Court is final. Such conflicts are decided by Courts of Conflict
consisting of eight judges and presided over by the Minister of Justice.
4. The bona fide obedience of commands of superiors, even though that involves a
breach of law, is a complete exemption and the jurisdiction of ordinary court is
ousted.
ADVANTAGES OF DROIT ADMINISTRATIF: There are following advantages of droit
administrative:1. Expediency - administrative agencies are better than ordinary courts in disposing cases
timely.
2. Administrative adjudication is cheaper than court adjudication
3. Administrative adjudication is more convenient and accessible to individuals
compared to ordinary courts.
4. The process of adjudication in administrative agencies is flexible and informal
compared to the rigid, stringent and much elaborated ordinary court procedures.
5. Administrative tribunals are filled by a panel of persons vested with special skill and
expertise related to the complicated dispute they adjudicate. Whereas ordinary court
judges are generalists in law and lack such expertise knowledge on the needs of the
administration in this technologically advanced world.
DISADVANTAGES OF DROIT ADMINISTRATIF: There are following disadvantages of droit
administrative:1. Lack of legal expertise: Many of the members of the panel are selected from different
walks of life with no or little legal background. They may lack the requisite legal
expertise to adjudicate disputes.
2. Partiality: Many or all of the members of the administrative tribunals are at the same
time employees of the various offices or agencies, they might not be free from bias
and partiality towards the agency.
3. Violation of the principle of separation of powers and rule of law: Adjudication is the
primary business of ordinary courts. So, transferring this power to administrative
agencies is argued by some authorities to be a violation to this principle.
DIFFERENCE BETWEEN DROIT ADMINISTRATIF AND RULE OF LAW: Following is the
difference between Droit Administratif and Rule of Law:1. The body of rules which regulate the relations of the administration or administrative
authority towards private citizens. Whereas, Rule of law refers to a supreme authority
that is above every individual irrespective of his position, etc.
2. Administrative law is the rules are case-laws made by Government officials. Whereas,
Rule of law is the case-laws made by the judges.
3. There is dual system of courts in administrative law. Whereas, there are one kind of
Courts in Rule of law.
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4. There is possibility of conflicts between Administrative Law Court and Ordinary Law
Court. Whereas, in Rue of law, there is no possibility of conflict due to single court
system.
DROIT ADMININSTRATIF AND ENGLISH OFFICIAL LAW: Droit Administratif hass not been a
part of law of England. An ordinary observer may think that there is something like Droit
Administratif in Elgish Constitution as there are certain statutes which regulate the status of
the State officials, i.e. (1) The Army and Air Force Act, (2) The Admiralty Act, and (3) National
Insurance Act. But this view is not correct for the following reasons:1. Firstly, these acts are concerned with particular class of Executive, whereas
Administrative law affects the whole Executive and citizens as well.
2. Secondly, under the English law, the Crown and its servants are as amenable to the
jurisdiction of the ordinary Courts of justice as the meanest subject in the land. The
ordinary Courts may control the action of the executive.
3. Thirdly, even where powers are given to the executive servants, the extent of these
powers is to be decided by the ordinary courts according to ordinary law, and not by
special courts and special laws as in France. Thus there is absolute supremacy of
ordinary law.
ADMINISTRATION OF JUSTICE
Justice means to treat the people justly on equality basis. Justice in Britain is honest and
impartial and it is available to all people alike, rich and poor, high and low. This is due to
independence of judiciary and rule of law. Judiciary is the pride of British heritage and it has
ever been the custodian of the liberties of the people. The justice is administered through the
separate arm of government called Judiciary. Legislatures make laws, executive implements
them and Judiciary enforces them. Professor Laski expressed the importance of judiciary in
his words that “Acts of Parliament are not self-operative; they have to be applied by men and
that application involved interpretation by a Court”.
LAWS PRACTICED IN UK: Three kinds of laws are being practiced in UK: Common law, Equity
law and Statutory Law.
1. Common law arose from the ancient customs of the country and is based on
precedents and records. The judges in ancient times decided cases in accordance with
common customs and the decision of one judge was followed by the others.
2. Equity law provided remedies for deficiencies in common law. Equity is based upon
justice and it is rooted in the conscience of the judge. For instance, if Ahmed illegally
possesses the plot of Ali, the judge in accordance with common law would order
Ahmed to pay compensation to Ali, for which equity law provided remedy to restore
possession of plot to Ali.
3. The statute law is composed of the Acts of Parliament and this is by far the largest
source of law in modern times.
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ORGANIZATION OF JUDICIARY: There is no uniform organization of judiciary throughout the
United Kingdom. There is one set of Courts in England and Wales, another in Scotland and
still another set of Courts in Northern Ireland. All these three different sets of courts are
under Supreme Court, which is the final court of appeal in the United Kingdom for civil cases,
and for criminal cases from England, Wales and Northern Ireland.
The present judicial system of England is based on the Acts passes during 1870’s.
There is a bifurcation of Courts in England, viz. (1) Criminal Court and (2) Civil Courts. Criminal
cases are tried by criminal courts where all prosecution is criminal cases is done in the name
of the Crown. Whereas civil cases are tried by civil courts where parties involved are private
persons. In the criminal cases, the guilty persons are punished while basic purpose in civil
disputes is to ventilate the grievances of the affected parties. It is worth pointing it out that
subordinate courts are classified according to the aforesaid nature of the cases while
jurisdiction of superior courts extends to both types of cases.
CRIMINAL DIVISION
Criminal division includes Magistrates’ courts, crown court, and court of appeal and then
finally comes Supreme Court.
Magistrates’ Court: Magistrates’ Court, also known as Justice of the Peace, is the lowest
court in England and Wales. It consists of three or two lay judges, while there is no jury at
Magistrates’ Court. This court deals with the summary cases which are punishable by six
months or less in prison and preliminary hearings for more serious ones. While in some
metropolitan areas, such as London, there are no magistrates, instead summary cases are
tried by a single District Judge. There are total 330 Magistrates’ Courts throughout England
and Wales.
Crown Court: Whereas, serious criminal cases (including punishment of more than 6 months)
are tried before a Crown Court, which is headed by a judge and a jury of twelve. The Crown
Court is a single entity as opposed to Magistrates’ court and sits in 77 locations across
England and Wales. When the Crown Court sits in city of London it is known as the Central
Criminal Court.
The Crown Court carries out four principal types of activity;
a) Cases sent for trial by magistrates’ courts due to incredibility of the offences,;
b) ‘Either way’ offences (which can be heard in a magistrates’ court, but can also be sent
to the Crown Court if the defendant chooses a jury trial);
c) Defendants convicted in magistrates’ courts, but sent to the Crown Court for
sentencing due to the seriousness of the offence;
d) Appeals against decisions of magistrates’ courts.
CIVIL DIVISION
Criminal division includes County courts, High Court of Justice, and court of appeal and then
finally comes Supreme Court.
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County Courts: Civil courts hear all civil suits involving an amount of less than two hundred
pounds. In addition, all controversies between the landowners and tenants or relating to rent
can be settled in country courts irrespective of the amount. At present there are over 300
County Court throughout UK and the jurisdiction of each county court covers one or more
counties. Lord Chancellor appoints judges of County Court amongst the persons of legal
profession. Judges of such courts visit from time to time, all important towns within the
circuit and decide the cases. Appeals against the decision of county courts can be taken to
the High Court.
High Court of Justice: The seat of High Court is in London and it has original jurisdiction over
all complicated civil suits. High Court of Justice has three distinct divisions: (a) Royal Bench
Division, (b) Chancery Bench Division, and (c) Family Bench Division. Every Division has
distinct jurisdiction and hears appeals against the decisions of the respective County Court.
1. Royal Bench Division: It consists of Lord Chief Justice who presides over it and
nineteen subordinate judges. It decides ordinary civil suits such as involving insurance,
taxation, trade, etc.
2. Chancery Bench Division: It consists of Lord Chancellor who presides over it and seven
other judges. Since the Lord Chancellor is preoccupied with other business of State,
normally other judges decide the cases. It settles all controversies involving the
application of rules of equity and the cases involve generally relate to feudal, joint
stock companies and bankruptcy.
3. Family Bench Division: It consists of any senior judge who serves as president and
seven subordinate judges. This court settles all cases involving marriage, divorce,
mortmain and maritime affairs.
The decisions of the divisions of High Court though binding, can be appealed to Civil
Division of the Court of Appeal.
COURT OF APPEAL: The Court of Appeal second highest in the legal system of England and
Wales only to the Supreme Court of the United Kingdom. It was created in 1875. It consists of
39 Lord Justices of Appeal and Lady Justices of Appeal.
The court has two divisions, Criminal and Civil, led by the Lord Chief Justice and
the Master of the Rolls respectively. Criminal appeals from Crown Court are heard in the
Criminal Division, and civil appeals from the High Court of Justice and County Courts in the
Civil Division. Further appeal may lie to the Supreme Court of United Kingdom which is the
highest Court of Appeal.
THE SUPREME COURT: The Supreme Court of UK was established on 1st October, 2009 as
authorized by Constitutional Reform Act 2005, part 3 and section 23 (1). Formerly, the
highest court of appeal in the United Kingdom was the House of Lords Appellate Committee
made up of lords known as Law Lords. The Supreme Court is headed by the President and
Deputy President and is composed of further 10 Justices of Supreme Court. It is the final
court of appeal in the United Kingdom for civil cases, and for criminal cases from England,
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Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance
affecting the whole population.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL: This was formed in 1883. This is not a regular
court; its real function is to advice the King on all sub-judicial matters coming from the British
Dominions. This committee consists of Lord Chancellor, Law-Lords, Lord President of the
Council and certain other members. This committee has, in fact, advisory jurisdiction. Its
opinion carries weight and “Orders in Council” are passed in the light of these
recommendations.
SPECIAL COURTS: In addition to civil and criminal courts there exist a number of civil courts
for deciding specific matters. These are as under:1. Coroner’s Courts: These deal with all cases relating to customary laws arising out of
unnatural death or death caused by provocation. In all such cases, local coroner who is
a barrister or a solicitor and medical practitioner having at least five years of service,
perform important functions. Their verdict reveals the cause of death, its time and
place of occurrence.
2. Ecclesiastical Courts: These courts are part of Royal Courts and have specific and
exclusive jurisdiction. The judges are appointed by Bishops and Arch Bishops, Judicial
Committees of the Privy Council coordinates the work of all such courts; while it is
assisted by few Bishops as assessors.
3. Military Courts: A distinct series of Military Courts have been established to decide all
cases of the military personnel involving breach of disciplinary rules. These courts hold
trial of all Court Martial cases. All appeals against the decisions of these Courts can be
taken to ‘Court Martial Appeal Court’ which is normally regarded as the final Court of
Appeal. Under special circumstances, appeals can be taken to the House of Lords
(Supreme Court) if public interest or law point is involved.
LORD CHANCELLOR: Lord Chancellor performs key function in the whole judicial set-up and is
responsible for maintaining discipline and coordination within the system. In addition to
being a Chief Judge of the High Court and that of Chancery Division of the Court of Appeal, he
is also an important member of Cabinet. He acts as an important legal advisor of the Cabinet
with addition to Attorney General. He recommends to the Queen, the names of the persons
to be appointed as judges of superior courts. The Lord Chancellor can also appoint can also
appoint and remove the judges of County Courts and Justices of Peace.
IMPACT OF EUROPEAN UNION:
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CONSTITUTION OF UNITED STATES
SALIENT FEATURES: The salient features of the Constitution of United States are as under:1. Preamble: The preamble of the constitution signifies the theory of popular
sovereignty. the objects expressed in the preamble are the following: “We the people
of the United States, in order to perform more perfect union, establish justice, ensure
domestic tranquility, provide for the common defense, promote the general welfare
and secure the blessings of liberty to ourselves and posterity, do remain and establish
this constitution for USA”.
2. Written Constitution: American Constitution is brief written document comprising of a
preamble and seven articles. Only twenty seven amendments so far have been made.
It is just a skeleton, excluding details. The motive behind keeping it brief document
was to regulate only basic issues while routine affairs and details were left for
enforcement, so that the constitution could cope up with the needs of changing
conditions. Despite its written form, the Constitution also includes certain unwritten
parts. Nevertheless, a major part of the Constitution has been reduced to writing in a
documentary form.
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3. Rigidity: The Constitution is rigid one having a very difficult and cumbersome
procedure of its amendment so any government may not alter it for timely gains or
under turbulence of popular thinking. Frequent changes in a constitution, of course,
impede its evolutionary growth on the one hand, and impair sanctity.
4. Supremacy of the Constitution: The Constitution stands supreme over all citizens,
institutions and all branches of government, federal as well as regional. No institution
of government is authorized to make a law or chalk out policy that is against the
constitution. Moreover, the constitution also ensured fundamental right, as no law
can be made by any government which is repugnant to the fundamental rights
secured in the constitution.
5. Checks and Balances: Due to the close coordination among three organs of the
government, the constitution provides checks and balances. The powers of one organ
are so devised as to keep check upon the powers of others. For instance, the President
can veto the bills passed by the Parliament. The President appoints various foreign
officers and concludes treaties, but all must be ratified by two-third majority of
Senate. Through this power, the Senate controls the internal administration and
external policies of the President. The Judiciary is organized by the Congress and the
Judges of Supreme Court are appointed by the President with the assent of the
Senate. The Supreme Court is empowered to declare null and void, any laws passed by
the Congress or executive orders of the President, if they contradict with Constitution.
Thus, in this way, all the three organs of the government are interlocked and interchecked.
6. Separation of Powers: The framers incorporated the theory of Montesquieu in the
Constitution and thereby demarcated the jurisdiction of all the three branches of the
government. Accordingly, the powers of government are distributed among three
organs-the Legislative, the Executive and the Judiciary. But this separation was not of
watertight compartments; a system of ‘Checks and Balances’ was also evolved, as
Montesquieu himself never contemplated a rigid Separation of Powers. Hence, the
President who ultimate executive authority has been given some legislative and
judicial powers. Similarly, the Congress shares certain administrative powers with the
President and can interfere in matters relating to the organizational set-up of the
judiciary. The superior courts, on the other hand, can indirectly influence legislation
through their role as interpreter of laws.
7. Federalism: It is a federation of about 50 States. The Constitution enumerates the
powers to the Centre and leaves the residue of powers to be exercised by the
federating units. Consequently, an effective central government along with
autonomous regional governments is secured.
8. Presidential form of Government: The Constitution provides Presidential form of
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relationship between the executive and legislative was formed under the principle of
Separation of Powers. The President is indirectly elected by the people for the period
of four years and is responsible to them. The Congress can remove him from his office
only through impeachment but it is a very difficult process. The Cabinet appoints its
ministers who are individually accountable to him and they are not the members of
the Congress.
9. Bicameralism: American Congress consists of two chambers. The upper House is
known as Senate while the lower house is known as House of Representatives. Senate
is constituted on the basis of equal representation of all States, viz. two from each
State, making its total strength to one hundred. The House of Representatives is
directly elected by the people and comprises 435 members. The tenure of Senate is 6
years, while the House of Representatives is elected for 2 years. Both Chambers have
been given equal powers in the Constitution. House of Representatives commands
somewhat superior position in the financial legislation in the sense that all money bills
originate in this Chamber. However, Senate is fully authorized to propose an increase
or decrease estimates for expenditure or in respect of proposals for raising funds. At
present, the Senate overshadows the House of Representatives, both in legislation and
administration.
10. Judicial Review: An important feature of the American Constitution lies in the role of
the Courts, especially relating to their power of Judicial Review. The Constitution
stands paramount over the whole State apparatus, while the Supreme Court exercises
the authority to interpret it. The judiciary is the guardian of Constitution and it can
declare any act of the executive or legislative as null and void being inconsistent with
the provisions of the Constitution.
11. Independence of Judiciary: American Judiciary has been assigned very important role
in the working of American political system. It is regarded as the guardian of
constitution having powers of Judicial Review. American Courts are given full
protection against undue interference in their affairs by any public authority. The
President appoints federal judges with the concurrence of Senate but they can be
removed by the Congress through impeachment, hence they enjoy security of service.
Moreover, they are paid liberal salaries in addition to other privileges and facilities.
12. Fundamental Rights: The fundamental rights of person, property and liberty are
guaranteed by the constitution. These rights were not incorporated in the original
document. The Bill of Rights was incorporated in the constitution through first ten
amendments in 1971. These rights include: right to life, right to personal security, right
to property, freedom of conscience, freedom of expression, protection against
unlawful detention, trial by jury, right to family life etc. No law contrary to these rights
can be made and these rights are enforceable through Courts.
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13. Impeachment: Public officials and the persons holding political offices, can be
removed from office on the conviction of treason, bribery or other high crimes and
misdemeanors. The House of Representatives brings charges of misconduct by voting
a bill of impeachment. The accused official is tried in the Senate, with Chief Justice of
Supreme Court presiding at the trial.
14. Convention and Usages: The Constitution is only the skeleton which gives the starting
point only; the other system and provisions are provided by way of customs, usages
and traditions.
15. Dual Citizenship: The constitution provides dual citizenship to the people of United
States. An American is the citizen of the USA as also of the State, where he or she is
domiciled.
BRIEF HISTORY CONVENTIONS LEADING TO THE PASSING OF AMERICAN CONSTITUTION
The Political system of America existed about 200 years back. Before that it was a colony of
British. The US began to develop in 1775 when thirteen colonies of Britain gathered at
Philadelphia and appointed George Washington as the Commander-in-Chief of the Army. On
the other hand, France promised to aid them for which the colonies ultimately declared war
against Britain. Consequently, on 4th July, 1776, Declaration of Independence was published
which declared that the colonies are free and independent States, although the Britain had
not recognized them yet. After declaration of independence, on 11th July 1776, a committee
drafted the articles of the Constitution. These articles of Confederation were approved by the
Congress on 15th November, 1777 and thereby named the confederation of States as “United
States of America” ensuring sovereignty, freedom, independence to the States. The Articles
of Confederation was implemented in March, 1781. It was, no doubt, comparatively more
effective that the temporary Union formed in the struggle for freedom, but soon its
weaknesses began to be felt. Congress had no power to impose taxes, as a result central setup had soon to face financial crisis. The Congress was not authorized to enact laws directly
for the citizens of Confederal Units. Congress was given power to propose amendment but
ratification from each State’s legislature was required, which proved to be a very difficult
task. Meanwhile, after 8 years of war between USA and British, British recognized the
colonies as independent States by the treaty of Versailles in 1783.
Consequently, in order to extend the powers of the confederation, a conference was
held at Annapolis in September, 1786; but only five States attended the conference, thereby
one of the delegates namely Alexander Hamilton called upon the Congress to summon a
convention of delegates of all states in order to amend the articles of the constitution.
Accordingly, on May 25, 1787, the Constitutional Convention opened in Philadelphia at
the Pennsylvania State House, now known as Independence Hall, where the Declaration of
Independence had been adopted 11 years earlier. There were 55 delegates in attendance,
representing all 13 states except Rhode Island, which refused to send representatives
because it did not want a powerful central government interfering in its economic
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business. George Washington, who had become a national hero after leading the Continental
Army to victory during the American Revolution, was selected as president of the convention
by unanimous vote.
Ultimately, after sixteen weeks of hot discussion, on 17th September 1787, the
convention’s five-member Committee of Style had drafted the final text of the Constitution,
which consisted of some 4,200 words. George Washington was the first to sign the
document. Of the 55 delegates, a total of 39 signed; some had already left Philadelphia, and
three refused to approve the document. In order for the Constitution to become law, it then
had to be ratified by nine of the 13 states. Subsequently, it was agreed that government
under the U.S. Constitution would begin on 4th March, 1789. George Washington was
inaugurated as America’s first president on 30th April, 1789. The Constitution established
Federal form of Government allowing maximum autonomy to the States. Earlier it was
federation of 13 States, at present United States is the federation of 50 states.
HUMAN RIGHTS BILL- CIVIL LIBERTIES
Rights were not incorporated in the original document of U.S. Constitution rather they were
incorporated in the Constitution in the form of first then amendments. As a matter of fact, on
25 September, 1789 twelve amendments were proposed in the Constitution which was sent
for the approval of States. Out of them, ten amendments were ratified by the States on 15 th
December, 1791 and they came to be known as “the Bill of Rights”. The chief purpose of the
amendments was to protect the rights of individuals from the government's interference.
1. First Amendment: Freedom of religion, freedom of speech and the press, the right to
assemble, the right to petition government.
2. Second Amendment: The right to form a militia and to keep and bear arms.
3. Third Amendment: The right not to have soldiers in one's home.
4. Fourth Amendment: Protection against unreasonable search and seizure.
5. Fifth Amendment: No one can be tried for a serious crime unless indicted (accused) by
a grand jury. No one can be forced to testify against herself or himself. No one can be
punished without due process of law. People must be paid for property taken for
public use.
6. Sixth Amendment: People have a right to a speedy trial, to legal counsel, and to
confront their accusers.
7. Seventh Amendment: People have the right to a jury trial in civil suits exceeding $20.
8. Eighth Amendment: Protection against excessive bail (money to release a person from
jail), stiff fines, and cruel and unusual punishment.
9. Ninth Amendment: Because there are so many basic human rights, not all of them
could be listed in the Constitution. This amendment means that the rights that are
enumerated cannot infringe upon rights that are not listed in the Constitution.
10. Tenth Amendment: Powers not given to the federal government by the Constitution
belong to the states or the people.
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AMERICAN FEDERALISM
American Federalism refers to the division of powers between U.S. State governments and
the Federal Government of United States. This is dual governmental machinery for which the
Constitution demarcates the boundaries. The American Constitution contains three lists of
subject, (a) a list of what the Congress can do, (b) a list of what the Congress cannot do, and
(c) a list of that the States cannot do. In order to assess the working of American Federalism,
it will be appropriate to explain the pattern of Division of Powers as worked out in the
Constitution:
1. The Powers of Central Government: The powers of the Central Government are
enumerated specifically in section 8 of Article I of the U.S. Constitution. These include:
foreign trade, inter-State Commerce, naturalization, common defense and general
welfare of the Unites States, coinage and weights and measures, promotion of science
and other useful arts, Constitution of Tribunals inferior to the Supreme Court,
declaration of War, raising armies and making all necessary laws necessary for the
execution of these powers.
2. Limitations on the Centre: In order to protect the fundamental rights of the citizens
and autonomy of the States, certain limitations have been imposed on the national
government. No person can be deprived to file a writ of habeas corpus, except on the
basis of external aggression or internal disturbance. The national government is not
authorized to impose taxes on the exports of a state, nor can give preference to any
sea port of a state over that of another,. It cannot take away fundamental rights such
as right to life, liberty, property, personal security without due process of law.
Moreover, issuance of general warrant has been regarded unconstitutional.
3. Limitations on State Governments: In order to protect fundamental rights of the
citizens and secure the supremacy of the national government, the constitution has
imposed certain limitations on State governments. The States are forbidden from
making treaty with any foreign power. No State can impose tax on national property
nor can issue currency without the permission from the Congress. A state government
is not authorized to levy import or export duties, nor can maintain separate military
troops or war ships. A State government is not entitled to declare war, save it is
threatened by external aggression. States are not allowed to servitude or deprive the
citizens from the right to vote on the basis of any discrimination such as colour, race,
religion or sex etc. No person can be deprived of his fundamental rights without his
guilt being proved in court of law.
4. Residuary Powers: The scheme of division of powers in the United States Constitution
shows that the State governments enjoy all those residuary powers which have not
been given to the Federal Government and which have not been forbidden to the
State governments. Consequently, Central Government becomes weak since it enjoys
jurisdiction over specific items only and autonomy to State governments is ensured as
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they enjoy all residuary powers. The state governments are authorized to legislate on
different socio-economic affairs, i.e. rules regarding property and its use, explanation
regarding all crimes committed against citizens and property, marriage and divorce,
local trade, labour, agriculture, professions, maintenance of roads, irrigation,
hospitals, control of self-government and other public works etc. Nevertheless, there
are certain concurrent affairs over which both, central and state governments, can
legislate, raise funds and apply civil and criminal proceedings.
RESPONSIBILITIES OF FEDERAL GOVERNMENT: In order to strengthen the position of the
States in the federal system, the Constitution imposes certain obligations on the Federal
Government, which are as under:1. State Autonomy: The Federal government has to respect and preserve the regional
autonomy and solidarity of the States. Hence, no State can be made to lose its
territory without its own consent. No constitutional amendment can be made which
aims at altering the territory of a State without its concurrence.
2. Guarantee of Republican form of Govt: The Federal Government is to ensure
republican form of government to every State. It is to be noted that in American
States, the governors are elected while in most other countries they are nominated by
the central government.
3. Protection against Invasion and Civil Commotion: The Constitution enjoins upon the
Federal Government to protect each of them against invasion and on the application
of the Legislature or of the Executive against domestic violence.
Incase of invasion
the Federal Government intervenes without awaiting request from the State
concerned. Such federal power flows from the “Federal War Power”. For quelling
domestic insurrection, the Federal Government intervenes only when the State
authorities make a request to the Central Government or Federal laws are violated or
national functions or national property is endangered. The decision regarding federal
intervention rests entirely with the American President.
OBLIGATION OF STATE TOWARDS FEDERAL GOVERNMENT: The State also owes certain
obligations towards the Federal Government. The States are required to conduct elections to
federal offices as the Constitution does not make provision for a separate federal election
machinery. The members of the Electoral College are elected in each state in a manner
prescribed by the state legislature. The Senators are also elected directly in each state. The
members of the lower House of the Congress are elected in each State generally in single
member constituencies. Moreover, states can take initiative in preparing an amendment of
the Constitution. Their participation is essential for ratifying the proposed amendment as
well.
THE FUNCTION OF THE CONGRESS AND LEGISLATIVE PROCEDURE
The first article of the American Constitution states: “All legislative powers herein granted
shall be vested in a Congress of the United States which shall consist of a Senate and House of
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Representatives”. Hence, American Congress is the repository of legislative authority in the
federation and is bicameral in its composition. The Upper Chamber is known as Senate which
is the symbol of equality of federating units while the Lower Chamber known as House of
Representatives which is directly elected by the people.
THE SENATE: The Upper Chamber known as Senate has been organized on the basis of parity
of representation to all States, viz. two seats are allocated to each States. It is composed of
100 members.
Duration: The members of Senate are elected for the period of 6 years but one-thirds of
them retire after every two years so as to keep the chamber well informed about the trends
of public opinion. Hence, after every two years new element steps in the lines of its
membership.
Sessions: The Senate holds its regular session each year. It may also be called in special
session by the President even when the House of Representatives is not sitting. This is
because the Senate has special functions, e.g. approval of treaties, confirmation of
appointments and trial of impeachments.
Presiding Officer: Legally, American Vice-President is the President of Senate as well, but due
to his preoccupation in administrative matters, a President Protemporo, who is a member of
the majority party, performs this duty. He implements the rules and regulations and
maintains discipline in the House. He has full authority to give his ruling on point of order and
decide when the vote has to be taken during deliberations. Traditionally, he remains aloof
from politics. However, appeal can be made against his decision to the House whose verdict
in this context is final.
Privileges of the Members: The Senators are guaranteed the same privileges and immunities
as are guaranteed to the members of the House of Representatives. They draw the same
salaries and allowances as are drawn by the Representatives.
THE HOUSE OF REPRESENTATIVES: The House of Representatives has been organized on
popular basis and consists of 435 members under Re-Apportionment Act of 1949.
Duration: The members of the House are elected for the period of 02 years.
Sessions: Constitutionally, the both Houses must meet atleast once a year. The president can
summon extra-ordinary sessions. The sessions of the Houses begin and end simultaneously.
Quorum: According to section 5 of Article I of the constitution, majority of members, i.e. 219
members, constitutes its quorum.
Privileges of the Members: The members of the House are entitled to the following
privileges:
1. They enjoy freedom of expression on the floor of the House and cannot be questioned
in a court of law for anything said in the House.
2. They are exempted from imprisonment during the sessions, except on the allegation
of gross misconduct, treason or threat to public peace.
3. They are exempted from the impeachment.
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4. The House as a collective entity has certain powers. It adopts rules and regulations in
respect of procedural matters and maintenance of discipline. It can punish any
member for disorderly behavior and with the concurrence of two-thirds, expel a
member and also pass a vote of censure.
The Speaker: The Speaker, who is always a senior member of the majority party, is elected in
the first session of newly elected House. The Speaker, unlike British Speaker, is also expected
to perform his role as a party member. Nevertheless, he tries to conduct the proceedings of
the House in impartial manner and safeguards the rights and privileges of all members. His
powers and functions are detailed as under:
1. The Speaker presides over the meeting of the House and implements its rules of
procedure. Moreover, he maintains law and order in the House, enforces disciplinary
rules, gives riling point of order and asks for vacating lobbies and galleries when need
arises, etc.
2. The deputies can take the floor only on the permission of the Speaker, who allocates
time for such speeches.
3. He decides when the vote is to be taken. During the deliberations he may ask for
division and announce the results.
4. He also nominates Conference Committees and Select Committees. In case the clerk of
the House faces difficulty in deciding as to which committee a particular bill should be
referred, the Speaker makes the final decision in this respect.
5. All the bills passed by the House, all petitions, joint resolutions and warrants got to be
signed by the Speaker.
6. Generally, the Speaker avoids casting his vote in the House but incase of tie he may
use his casting vote to break the dead lock.
7. The Speaker of the House is fully authorized to disallow the initiations of such moves
which aim at obstructing the business of the House.
Powers and Functions:
1. Legislation: American congress is empowered to legislate on the matters enumerated
in the central list as well as concurrent list. The source of Congress authority and
power is not merely Constitution but the judicial interpretations have also enhanced
its sphere of legislation. Both houses of Congress share equal powers in legislation. A
bill is initiated in either House and passed by the other and finally assented by the
President.
2. Constitutional Amendment: American Congress can initiate proposals for amendment
in the Constitution by two-thirds majority but it got to be ratified by State legislatures
as well. This process secures State’s autonomy and gives them participation in
amending process.
3. Financial Control: The President prepares budget and submits before the Congress for
its approval. Congress holds power to amend it in any way. Moreover, no tax can be
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raised nor any amount is spent without the approval of the Congress. Senate has
comparatively inferior positing in financial legislation as all the money bills originate in
the House of Representatives. Nevertheless, the Senate enjoys full power to curtail or
reject any of the fiscal proposals.
Administrative Control: Despite the principle of Separation of Powers, Congress has
been assigned certain administrative functions too. It can declare war and make
peace. The Congress, through its enactments, can regulate the organization and
working of different administrative departments and agencies. Specifically, the Senate
ratifies all the Presidential appointments of federal officials, ratifies treaties entered
into with foreign nations and conducts trial of impeachments. Moreover, the Congress
enjoys the authority to appoint commissions and committees for investigative purpose
and to control the administration as it cannot rely simply on the information provided
by the government to guide legislation. The Congress also has been passing
resolutions to restrict President’s power to issue executive decrees and that of
delegated legislation.
Investigations: American Congress, from time to time, can inquire into working of
different administrative departments. Both Houses of Congress can seek necessary
information from any government agency; while Congressional Committees have very
exclusive field of inquiries. While performing their functions these committees can call
for public records and summon any public official for evidence.
Selective Functions: According to the Constitution, incase no candidate gets clear cut
majority of the Elector’s vote during Presidential Election, the House of
Representatives shall elect the President amongst top three candidates. Similarly,
incase no candidate for Vice-President secures clear cut majority, the Senate shall
elect the Vice-President amongst the top two candidates.
Judicial Powers: Congress makes laws regulating the organization of the judiciary and
all courts under the Supreme Court are organized by the acts of Congress. It also
determines the exclusive jurisdiction of the Supreme Court. Each House of Congress
maintains discipline among its members and can expel any of them from its sessions
under a decision taken by two-thirds majority. It can punish any person on the charge
of violating the working of the legislative process. For example, if any person refuses
to appear before any committee of the Congress as a witness, he can be declared
guilty. Moreover, Congress has the power to impeach the President, Vice President
and other federal officials. Both Houses of the Congress are authorized to decide
jointly about the admission of a new State into the Union.
LEGISLATIVE PROCEDURE: Following is the legislative procedure adopted by American
Congress:
1. Drafting of a bill: An agency comprising of expert draftsmen has been involved in
drafting the bills since 1918. Any member may initiate a bill. Proposal for legislation
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may also come from White House or from different federal departments, through
formally through any private member.
First Reading: Generally, a bill is introduced in the camber in which chances of its
support are bright. Except money bills, all other bills can be introduced in either House
of the Congress. A member introducing the bill drops it in the box placed on the table
of the clerk. After its introduction, a bill can be taken up for discussion at any time
during the whole session. First reading of the bill is not reading in fact, as the bill is
deemed to be read by having its title printed in the journal and in the Congressional
record. All the bills introduced are arranged in order and distributed among the
members after being published.
Committee Stage: After its first reading, a bill is referred to the concerned committee
by the clerk. If the clerk finds any difficulty in respect of the allocation of bill, the
speaker decides the issue and may send it to any committee. Each committee has
formed subcommittees to scrutinize different aspects of a bill. The committee
examines bill as well as inquires into the matters involved and try to get all possible
information. It can also call for public records and public officials for getting firsthand
knowledge.
Report of the Committees: after thorough examination of a bill, a committee submits
its report to the House. A bill may be reported favourably or may carry adverse
remarks. Committee may also suggest alteration in a bill to an extent that sometimes
the entire outlook of a bill may be changed. Moreover, committees are not bound to
report back. Most of the bills are not considered at all by the committees.
Calendar Stage: After the receipt of the report by the Committee, the clerk puts it in a
calendar which are of three kinds:
a. Union Calendar: All bills relating to income and expenditure and Public
property, which are reported favourably by the committees, are put in Union
Calendar.
b. House Calendar: All Public bills, except money bills, are put in the House
Calendar.
c. Private Calendar: All private bills are placed in Private Calendar.
All bills may not necessarily be put in Union or House Calendar. Rather noncontroversial types of bills may be included in consent or discharge calendar. In
discharge calendars, generally such bills are included which have been kept by a
standing committee for thirty days without reporting it back. While placing the bills in
different calendars, the same order is preserved according to which these are received
from the committees.
Second Reading: During the second reading of a bill, the clerk reads out the title of the
bill and if nobody raises any objection, it is deemed to have been passed without
further detailed reading, otherwise second and third reading is essential. At second
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reading, amendments are proposed and thorough discussion takes place. None of the
members is allowed in the House to consume more than one hour in his speech while
there is no such limitation on the senators. Generally, the recommendations of the
committees are given prior importance. If the bill is approved it has to undergo its
third reading.
7. Third Reading: Third reading is, in fact, a formal process. At this stage only of the bill is
read; detailed reading is also possible if the members insist to this effect. Finally, a
vote is taken. If it is affirmative, the Speaker signs it either to the other chamber or to
the President for his approval, as the case may be.
8. Conference Committee: Political Parties perform vital role in maintaining coordination
between both the chambers. Incase of disagreement, a committee is formed,
consisting of members from both the chambers. This conference committee tries to
explore points of agreement and prepares recommendations for removing the
hurdles. Such committees normally consist of three to eleven members, including the
mover of the bill concerned.
9. Presidential Assent: Finally a bill is sent to the President for his assent, he may adopt
any of the following options:
a. He may either simply assent the bill transforming it into law;
b. He may send the bill back to the House of its origin with suggestions. If both
houses accommodate its Presidential suggestions, the bill is sent again for his
assent; but if the Congress does not agree with Presidential suggestions, the bill
will have to be passed by a two-thirds majority of both Houses and such a bill
will become law without the assent of the President;
c. If the President neither vetoes nor assent a bill within 10 days from the date
when a bill has been referred for Presidential approval, it will become law
without the approval of the President;
d. Incase Congress adjourns its session before the expiry of ten days from the date
when a bill has been referred for Presidential assent while he has not assented
it, the bill shall become ineffective. This power of President is termed as Pocket
Veto or Suspensive Veto. If the Congress, in its next session, still insists to get
the same bill passed, it will have to be passed by the Congress afresh.
SEPARATION OF POWERS
AMERICAN CONSTITUTION: The principle of Separation of Power is the most important
feature of American Constitution. The first three articles of the constitution vest legislative
powers in the Congress, the executive powers in the President and the judicial powers in the
Supreme Court of United States. Each of the three wings is separate and distinct without
being dependent upon the other. For instance, the President has fixed tenure and is not
responsible to the Congress. The Congress is independent of the President since it cannot be
prorogued or dissolved by him. Similarly, federal judiciary is also independent of both
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executive and legislature. No judge of the Supreme Court can be removed except by a very
difficult procedure of impeachment.
Checks and Balances: Montesquieu never contemplated a rigid separation of water tight
compartment while demarcating the spheres of these branches of government. The smooth
functioning of the government is dependent on a closer collaboration among all of its
branches. In American Constitution, the powers of one organ are so devised as to keep check
upon the powers of others. They work in cooperation and keep check on each other as
under:1. The Executive: Executive powers are vested in the President who is aided by his selfselected cabinet. The Presidential Cabinet is neither a part of Congress nor it is
responsible to it; they are only responsible to the President.
Executive branch has a hand in legislation as well. The President can send
messages to the Congress suggesting proposals for legislation. He can summon
extraordinary sessions of Congress and veto the bills passed by the Congress. During
war conditions or in a State of emergency, Congress entrusts the powers of legislation
to the President. The President appoints various foreign officers and concludes
treaties, but all must be ratified by two-third majority of Senate. A member of
Government, the Vice-President, presides over the Senate. The President also enjoys
judicial powers. He can also promulgate ordinances, decrees and enjoys the power of
delegated legislation. He appoints federal judges with the approval of Senate. He can
grant pardon, reprieve clemency, with the exception of sentences given through
impeachment.
2. The Legislature: The Legislative branch of government is responsible for making laws
for the country. It is independent of executive in the sense that it cannot be prorogued
or dissolved by the President.
Congress enjoys executive powers of ratifying appointments and treaties made
by the President. It can impeach the President. It also looks after administration of
Government Printing Office, the General Accounting Office etc. It also looks after a
number of regulatory commissions such as the Federal Communications Commission,
Federal Trade Commission, etc. Congress receives periodic reports from the executive
agencies for which it provides funds; it has a chance to question departmental heads
once in a year. U.S. Congress also enjoys judicial powers in so far as it has the authority
to determine the qualifications of members, to decide contested elections, to present
and try impeachments, to institute and try proceedings relating to the contempt of the
Congress.
3. The Judiciary: The Judicial branch is independent of executive and legislative
branches. But federal judges are appointed by the President and they can be removed
by Congress through impeachment. The Supreme Court enjoys the power of Judicial
Review, through which it can nullify any enactment of Congress, or State legislature or
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executive decree, if it contradicts constitution. The Judicial branch resort indirect
legislation as it gives new interpretations to the constitutional and statutory laws.
DEMERITS OF SEPARATION OF POWERS: Following are the demerits of separation of powers:
1. Conflict: There is possibility of conflict between the branches of government
specifically between executive and the legislative. The Congress may ignore
Presidential messages for legislation which can cause difficulties to the President in
executing his administrative policies. The President on the other hand, can veto the
bills passed by the Congress.
2. Division of Responsibility: Under Parliamentary setup, as the same party controls
both branches of government, it can therefore be held responsible for all
governmental actions. But American government based on separation of powers,
hence no single branch of government can be held responsible, especially where two
rivalry parties control these branches. The President can blame the Congress for non
cooperation in supporting his administrative policies while the Congressional majority,
in order to conceal the drawbacks of legislation, may blame executive branch for not
executing laws in benefiting manner. As a matter of fact, division of responsibility
implies no responsibility at all.
3. Ineffective Control over the Executive: The President and his Cabinet members do not
attend the sessions of the Congress, as such they remain unaware of the trends and
aspirations of people’s representatives. The Ministers, being non representatives, are
not accountable to the people. Moreover, the legislators do not criticize government
policies vehemently, as it happens in a parliamentary setup, because the members of
the executive are not present on the floors of the House to defend their policies.
Hence congressional control over the executive virtually becomes ineffective. There is
a possibility that the executive may become autocratic while discharging its
responsibilities.
PRESIDENT, HIS ELECTION, POWERS AND CHECKS ON HIM
The President of America is the sole executive authority. His powers are so enormous, wide
and overwhelming that he has been described as the ‘foremost ruler in the world’. The
President of America is supreme in executive sphere, making due allowance for some devices
of internal checks and balances. He chooses his own Cabinet, which is regarded as
‘President’s Family” and the President being its head, dominated them. Ogg described him as
‘greatest ruler of the world’. According to Henry he exercises ‘the largest amount of authority
ever wielded by any man in democracy”.
ELECTION OF PRESIDENT: The Constitution provides for indirect election of the American
President by an electoral college that is itself elected by the people of USA.
1. National Convention: In America, political parties hold a representative Convention
five or six months before the election to nominate respective Presidential candidate.
Republicans hold such Convention by the end of June or in early July, while convention
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of Democratic Party takes place two weeks later. National Committees of both parties
decide about the time and place of convention, where party delegates from all States
participate.
Presidential Nomination: Party Convention is a big gathering represented by
thousands delegates. Two important tasks before the convention are: (a) to prepare
Party Manifesto for the forthcoming elections and (b) to nominate candidates for the
office of President and Vice President.
General Election Campaigning: General election campaigning begins after each
political party chooses a single presidential nominee. Those candidates travel the
country, holding rallies and town halls. They explain their views and plans to the public
and try to win potential voters' support. Debates and advertising also play huge roles
in the campaign.
Nomination of Electors: The nomination of Presidential Electors is held in each State.
They are usually important party leader or prominent workers. in each State, the
political parties put forth their list of electors who are nominated in whatever way the
State laws or party rules prescribe.
Election of the Electors: Every citizen of 18 years age or more, unless disqualifies on
certain ground, possesses right to vote for Presidential Electors. Theoretically, voters
can cast vote for Presidential Electors, but practically, political parties announce the
names of their candidates long before the election of Presidential Electors, thus
citizens cast votes keeping in view a particular Presidential candidate for whom such
electors are required to vote.
Electoral College: Constitutionally, electoral college for the election of President
consists of equal number of state representatives in the Congress, viz. 100 electors
from Senate, 435 electors from House of Representatives and 3 electors from District
of Columbia, which makes upto 538 electros.
Election of President by Electors: Though voting by the Presidential Electors is now a
mere formality yet it continues to be observed. As provided under Congressional Law,
the Presidential electors meet on the second Wednesday of December in their
respective State capitals and cast their votes for Presidential and Vice-Presidential
candidates.
Transmitting and Counting of Votes: The ballots are then counted and certificates
attesting the result are promptly mailed in scaled covers to Washington where they
are opened in presence of members of the Congress. The President of the Senate
counts the votes and announces the result.
The candidate securing majority i.e. 270 votes, is declared elected. If incase no
candidate secures absolute majority, the members of House of Representatives elect
the President from amongst top three candidates. If no Presidential Candidate obtains
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requisite majority by 20th January, the new Vice-President shall assume the office of
President.
9. Inauguration: According to 20th amendment of the Constitution, the new President
shall take oath of office on 20th of January before the Chief Justice of the Supreme
Court at the U.S. Capitol building in Washington, DC.
POWERS OF PRESIDENT: An American President is the repository of all administrative
powers. The framers wanted to make this office most effective and powerful so as to secure
political stability: He enjoys the following powers:
1. Executive Powers: American President is the sole authority of all executive powers.
Different aspects of executive powers are as under:a. Enforcement of Law: It is the responsibility of the President to enforce the
Constitution as well as federal laws and for such purpose he is assisted by
different government departments. He also has exclusive responsibility
regarding formation of policies.
b. Presidential Appointments: He has the power to make all important
appointments but all such appointments are to be approved by the Senate. As a
matter of usage, the, Senate does not interfere in the appointments of the
Secretaries, Ambassadors, and other diplomats. But the appointments of
Judges of the Supreme Court must be scrutinized thoroughly by the Senate. The
President has no time to look into all appointments, which number in thousand.
So he has delegated his power to make appointments to the Senators belonging
to his party from the state where there is a vacancy. The appointments made
by the Senators are approved by the Senate out of courtesy. The President has
the power to remove any person appointed by him except judges.
c. Diplomatic Powers: American President is regarded as the Chief Spokesman of
America in its relations with foreign governments. His most important function
is to formulate foreign policy. He is empowered to make treaties subject to the
ratification by the Senate with two-thirds majority vote. The President can
enter into bilateral and multilateral agreement without approval of Senate.
Moreover, the President appoints ambassadors, consuls and other members of
diplomatic corpse, subject to confirmation by the Senate. He also receives the
ambassadors of foreign countries, an action indicating indirectly recognition of
that State. He has the sole power to recognize or refuse to recognize new
states.
d. Role in Defense: He is the supreme Commander-in-Chief of the US-armed
forces as such he is responsible for the defense of his country. He appoints
higher military-officers with the consent of the Senate and can remove them at
will. He can make rules and regulations for the execution of the acts of the
Congress relating to Defense. He can send American forces to any part of the
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world. Again, it is for the President to decide in time of war and aggression
when and where and whether the H-bomb should be dropped. He cannot,
however, declare war without the consent of Congress. But he can create such
a situation that declaration of war becomes inevitable.
2. Legislative Powers: Due to the doctrine of Separation of Powers, the interference of
executive in legislative has been minimized. But still both branches cooperate in many
aspects. The executive does not participate in legislation directly, yet the
administrative branch remains involved in the legislative process right from the
drafting of the bills till their final approval in the Congress. Some of his legislative
powers may be summed up as follows:
a. Presidential Veto: Every bill passed by the Congress needs assent of the
President. He also holds power to veto the bills. A bill after passing from the
Congress is sent to the President and the President may wither approve it or
withhold his assent within 10 days, but if he neither approves nor withholds a
bill, the bill shall be deemed to have been assented. Incase of withholding his
assent, the President shall send the bill back to the House of its origin, along
with his objections. If both Houses pass the same bill with the support of twothirds majority, such as bill shall become law without Presidential assent.
b. Messages: The President may send messages proposing some legislative
measures, either orally or in written. Many laws owe their origin to the
Presidential messages.
c. Special Sessions: The President has the right to convene special sessions of the
Congress. The practice of convening special sessions of the Congress was very
common previously, but after twentieth amendment a new calendar was
introduced, thus the need of special sessions has become less because the
interval between the regular sessions has been lessened.
d. Indirect Involvement: The executive, however, indirectly participates in the
drafting of money bills. Rater certain bills are prepared under the exclusive
supervision of executive branch and the President gets these introduced in the
Congress through his Party men. The bills prepared by Congressional
Committee are shaped and influenced by the administrative agencies.
e. Executive Decrees and Delegated Legislation: The President is empowered to
promulgate executive decrees and orders and these are as valid as laws. He
executive can also make new rules and regulations necessary for putting into
execution the laws of the Congress.
3. Financial Powers: Federal Budget is prepared by the Bureau of Budget under the
supervision of President. It is placed before the Congress which can amend it any way.
Generally, the budget is passes as it is because the members of Congress do not
normally understand technicalities involved in financial matters. During an emergency,
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the President is authorized to spend as much money as required in his own discretion.
Thus the President is general manager of the financial affairs of the Government.
4. Judicial Powers: An American President appoints federal judges with the approval of
Senate. He can grant pardon, reprieve clemency, with the exception of sentences
given through impeachment.
Checks on the President:
JUDICIARY AND JUDICIAL REVIEW
The United States is a federal system comprising of fifty states, with a central federal
government and individual governments for each of the fifty states. The Judicial system of
United States is one of the most complex systems of the world. There exist two distinct series
of courts, i.e. state courts and federal courts, in the administration of justice. Each state has
its own complete judicial system Called State court System. The Federal Courts apply federal
laws in addition to Constitutional law, whereas the State Courts also exercise jurisdiction in
respect of State laws and concurrent jurisdiction relating to federal laws.
THE U.S. SUPREME COURT: Section-I of Article-III of the U.S. Constitution 1789 establishes
the Supreme Court and provides that “the Judicial Powers of the United States shall be
vested in one Supreme Court, and such inferior courts as the Congress may from time to time
ordain and establish”. The establishment of Supreme Court of U.S. was necessary in order to
settle controversies between centre and the units and it also explains inter-relationship
between all government branches. It is headed by Chief Justice and comprises of eight other
associate justices, which are nominated by the President and confirmed by the Senate. They
are appointed for lifetime, unless sooner they resign, or retire, or removed from office. It has
original jurisdiction over certain cases including suits between two or more states and cases
involving ambassadors and other public ministers. The Court has also appellate jurisdiction
over all federal court and state court cases that involve a point of federal constitutional or
statutory law. Furthermore, Supreme Court acts as the Guardian of the Constitution. The
court enjoys the power of judicial review through which it can declare as null and void, any
legislative or executive order in violation of the constitution. The court meets in Supreme
Court building in Washington D.C.
FEDERAL COURTS: The federal court system is a three level system; US District Courts, US
Courts of Appeals, and US Supreme Court.
District Courts: There are total 94 district or trial courts called U.S. Federal District Courts.
There is atleast one District Court in each state but many states have two or three, and
California, New York and Texas have four district courts. These courts hold their sessions in
different cities and towns in addition to permanent seats in big cities. The cases adjudicated
before district courts are usually presided over by one judge; however, the number of judges
is not fixed and determined according to actual needs. The judges are appointed by the
President with concurrence of Senate, and they retire at the age of seventy. It hears and
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decided lawsuits arising within the state’s territory. The decisions of district court may be
appealed to federal circuit courts of appeal.
U.S. Circuit Courts of Appeals: These intermediate appellate Courts known as U.S. Courts of
Appeals, created by an act of Congress in 1982. The 94 federal district courts are organized
into 12 regional circuits, each of which has a court of appeal. Every appellate court consists of
three to ten judges. Each circuit court includes a Judge of the Supreme Court as well. It
decides appeals from the district courts as well as appeals from the decisions of federal
administrative agencies such as Federal Trade Commission, Security and Exchange
Commission and National Labour relations Board, etc.
Special Federal Courts: In addition to above courts created under Constitutional law, there
are certain special courts which are commonly called “Legislative Courts” because they are
created by the Congress under statutes. These Courts do not exercise judicial powers of the
federal government rather they assist in the interpretations and application of the laws of
the Congress. For instance, Congress has constitutional to levy taxes but to evaluate taxable
commodities and to settle other controversies, the Congress established Custom Courts.
Prominent among the special courts are the following:1. Customs Court: This Court was created in 1890. It consists of nine judges to be
appointed by the President with the assent of Congress and they serve during good
behavior. The court’s office is located in New York where most of its business is
conducted although sessions are held in other cities as well. The function of the Court
is to settle all disputes relating to customs.
2. Court of Custom and Patent Appeals: This Court was created in 1910. It consists of
five judges to be appointed by the President with the assent of Congress and they
serve during good behavior. It is in continuous session, usually in Washington, but it
may hold its session in any judicial circuit at any time. It hears appeals from the
decisions of the customs court and the orders of United States Patent Office.
3. Territorial Courts: These are setup by the Congress in the American Territories. Those
with greater authority are located in Puetro Rico, the Virgin Islands and the Panama
Canal lane. These courts have jurisdiction over all matters, local as well as federal
which Congress may assign directly or indirectly through the territorial government.
4. Tax Court: It was established in 1942. It is a sixteen number Court. It hears disputes
arising from the decisions of the federal tax collection agencies.
5. Court of Military Appeals: It was created in 1950. It consists of three civilian judges
appointed by the President with Senate’s approval. It functions in Washington. It has
no original jurisdiction. It is considered to be the last court of appeal for all courtmartial cases.
STATE COURTS: The State Court system has three level, a) state trial courts, state appellate
courts and state supreme courts.
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State Trial Courts: Each state has a general trial court having jurisdiction over a wide variety
of civil and criminal cases. The cases are tried by a judge or a jury. Judges in these courts may
be appointed or elected, depending upon the state. Common names for general trial courts
are circuit, common pleas, county, district, or superior courts.
In addition, states typically have courts with limited or specialized subject matter
jurisdiction; these courts are considered inferior courts. The names and subject matter
jurisdiction of these courts can vary greatly. Limited jurisdiction refers to monetary
confines—such as cases under a certain amount (e.g., $5,000); specialized refers to types of
cases—such as domestic relations cases or trusts and estates cases. Common names for
these
limited
or
specialized
courts
include family, justice
of
the
peace, municipal, probate, small claims, and traffic courts. In addition, appeals from limited
or specialized courts often are to the general trial courts.
State Appellate Courts: If a person loses in a lower court, he or she can appeal to the state
appellate court. Most states have intermediate appellate courts to hear and review appeals
from the general trial courts. Some smaller states—such as Delaware and New Hampshire—
do not. In those states, a party would appeal directly to the state supreme court. These
courts use a panel of judges to review only a particular point or issue instead of rehearing the
entire case and can even choose whether or not to accept the appeal at all. If accepted, the
panel votes on the issue, and the majority rules.
State Supreme Courts: Each state has a state supreme court, where either party can appeal
an issue to the State Supreme Court. There is usually only one highest court per state, though
Texas, for example, has two. Texas uses the 'Texas Supreme Court' to hear civil cases and the
'Texas Court of Criminal Appeals' to hear criminal cases.
This court is the court of last resort or highest court for the state. A party who is
dissatisfied with a state supreme court’s decision has no further appeals unless the case
involves a federal question or constitutional issue. In those limited instances (including
criminal convictions, particularly death-penalty cases), the party may request a writ
of certiorari from the US Supreme Court. Different states call the state highest court by
different names. In most states, the highest court is known as the Supreme Court or the
Court of Appeals.
JUDICIAL REVIEW: Judicial Review refers to the power of judiciary to determine whether a
law passed by the Congress, or any law enacted by a State legislature, or any provision in the
State constitution, or any public regulation having force of law, is in consonance with the
Constitution. In United States, the Supreme Court is regarded as the Guardian of
Constitution. The Constitution lays down the pattern of division of power between the
central and state governments within the federation and also demarcated respective spheres
of action of all the three branches of government on the principle of Separation of Powers.
Supreme Court has full authority to explain the sphere of all branches of government and
that of Central and State governments.
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This power of Judicial Review is not explicitly incorporated in the Constitution. But it
was asserted by Chief Justice Marshall in famous case of ‘Marbury v/s Madison’ in 1830.
Justice Marshall took the please that judiciary is the Guardian of the Constitution whereas
Constitutional law is the basic law of the land. Hence, any law, executive order or policy
which contradicts paramount law, can be declared unconstitutional by the Supreme Court. It
must be noted that the Supreme Court exercises the power of Judicial Review only when a
matter is brought in the form of a case.
Merits of Judicial Review: The power of Judicial Review has the following advantages:
1. Protection of the Constitution: Incorporation of Judicial Review enables an impartial
and independent body to settle the disputes arising between different branches of
country and national and state governments. By virtue of its power of Judicial Review,
Supreme Court can effectively keep all the governments and their branches in their
respective spheres, hence protects the rights of individuals and those of the
institutions.
2. Growth of the Constitution: By virtue of the power of Judicial Review, Supreme Court
has performed positive role in the growth of the Constitution. The framers
deliberately avoided going into the details regarding the organization and working of
the governmental machinery. For instance, they prescribed privileges of the citizens of
different states but did not explain these privileges nor defined citizenship. Similarly,
constitution deals with judiciary, but they did not through light on the organization of
subordinate Courts. There are many terms and words used in the constitution which
can be interpreted in many contexts. Hence, Chief Justice Marshall introduced
“Judicial Review” based on implied powers.
3. Accommodation and Adjustment: It has been difficult to alter and amend American
Constitution due to its rigidity. Thus the Constitution may lack flexibility and fail to
adapt to the modern day world. Credit goes to the Court, which through exercising the
power of “Judicial Review” has integrated mechanical legal percepts with the
contemporary requirements.
Demerits of Judicial Review: The power of Judicial Review has been criticized as under:1. Undemocratic: The Supreme Court through exercising the power of Judicial Review
can declare null and void any law passed by democratically elected representatives.
Thus Laski calls it a ‘third Chamber’. There is possibility that a law made by popular
demand maybe nullified by the Supreme Court which indirectly implies rejection of
peoples mandate.
2. Injurious effects on Enactment: Congress makes laws with full dedication as the whole
legislative process is spread over different stages. Once a law, which is the fruit of
much labour and commitment, gets nullified, there is every possibility that
irresponsibility, lethargy and carelessness may overcast the whole legislative process.
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3. Judicial Autocracy: Supremacy of the Constitution implies practically the supremacy of
the courts. Thus the Supreme Court has gained upper hand over other branches of
government on account of its power of Judicial Review. The opinion of a single judge
can set aside the action of duly elected Congress and the President, which implies
autocracy of judiciary.
4. Approach of Judges: Congressmen are expert in politics and socioeconomics and well
aware regarding contemporary needs; thus they make laws keeping in view all these
factors. But the judges, on the other hand, may ignore all these factors due to their
professional training and nullify certain laws. Their approach is too rigid and
mechanical which may clog social progress.
5. Appointment of Judges: The federal judges are appointed on the basis of political
considerations. To make any such institution predominant may injure the
requirements of justice, as political thinking of the judges may affect their decision.
RIGIDITY, PROCEDURE OF AMENDMENTS
American Constitution is one of the rigid constitutions of the world. Article 5 of the
Constitution lays down a very cumbersome and difficult procedure for its amendment.
Accordingly, two distinct methods have been prescribed for its amendment and two methods
for its ratification. It is the discretion of the Congress to decide as to which of the two
methods have to be adopted. To propose or initiate any amendment, the two methods are:
1. Both the chambers of the Congress, by a two-thirds majority, may propose an
amendment. The constitution shall be amended if three-fourths of the state
legislatures approve the proposal;
2. Or the States themselves may take the initiative in proposing amendments. If twothirds of the State legislatures apply to the Congress for this purpose, the Congress
calls a Constitutional Convention which shall, on the basis of original recommendation,
propose the amendments. The amendments must be adopted by the three-fourth of
all the States either through their legislatures or at specially convened conventions.
The mode of the ratification is to be determined by the Congress.
Generally, the first method regarding the proposal for amendment is adopted, the second
one was adopted only once, during twentieth amendment which repealed 18th amendment
(which had enforced Prohibition) was ratified by conventions in the State.
ADVANTAGES: The advantages of rigid constitutional amendment procedure are as under:
1. Protects the Constitution from political whims: Due to its cumbersome and long
procedure, it is hard to repeal it and thus deters people from changing it based on
their own political goals and stops the next President from just repealing it.
DISADVANTAGES:
1. It takes too long: Some state legislatures take up to seven years to decide, which
means that a proposed amendment may not happen for at least 10 years.
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2. The rigidity of the amendment process means that the Constitution may lack flexibility
and fail to adapt to the modern day world. For example, the 2nd Amendment, "the
right to bear arms" is not completely applicable to today's society
3. Because of the long and difficult process, some amendments which are needed to
protect the minorities fail often and this is, in turn, bad for these minorities. For
example, the Equal Rights Amendment for women has often been proposed but not
acted upon.
CONCEPT OF FEDERALISM:
SENATE AND EFFECTIVENESS OF ITS CONTROL:
RATIFICATION OF THE CONSTITUTION:
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