Legislative powers
what is legislative powers?
D.D. Basu defines legislative powers as legislative authority derived by both the levels of a federal government, the Union and the states, from the constitution and controlled by its supremacy.[1]
But the context of legislative powers is rooted way back in time with Aristotle forming its classical roots, in his book "Politics," by defining legislative powers of the government as the deliberative part of government and described it as the body for making laws and major decisions of the state.[2] Furthermore , in the modern era , John Locke in his book "Two Treatises of Government" defines legislative powers as the supreme and sacred authority of the commonwealth vested by the people . According to him , this system exists to enact laws for the preservation of society and protection of individual rights and property and considers this power not arbitrary.[3]
V.N. Shukla states that legislative powers of India are vested in which comprises the Lok Sabha and Rajya Sabha and the President of India. Each of these bodies plays distinctive roles in the creation, passage, and enforcement of laws.[4]
Lok Sabha - summarize
Article 81 of the indian constitution defines and details the Lok Sabha . It is also known as the House of the People.It consists of upto 530 members who are directly elected from territorial assemblies within states and upto 20 members representing union territories. The distribution of seats is based on population, and this is done to ensure proportional and equal representation of all constituencies, with their allocation detailed further under the same article. Its functions primarily include introducing and passing bills , functioning as people's representatives.[5]
Rajya Sabha - summarize
Article 80 of the indian constitution defines and outlines the Rajya Sabha. It is also known as the Council of States. It consists of 12 members that are nominated by the president , and representatives from states and union territories who are elected by their respective state legislative assemblies, and the allocation of their seats and the election process are detailed in the fourth schedule of the indian constitution. Its functions include reviewing and suggesting amendments to bills passed by the Lok Sabha, functioning as a revising chamber. [6]
President - summarize
As the head of the state , the president holds significant legislative powers as outlined in the indian constitution under several provisions. Article 56 defines the term, tenure and process of resignation of the president . Article 123 allows the president to promulgate ordinances when parliament is unavailable or not in session. Now Article 111 mainly empowers the president to ether asssent or withhold assent or return bills back to parliament for reconsideration. The above functions enable a system of checks and balances and ensure functioning of legislative process.[7]
Types of Legislative Powers[8]
Legislative powers can be divided into several types based on the type of government , interpretation and its functions. So, based on that, legislative powers can be divided into two types - supreme or subordinate legislative powers and this division is made based on the type of authority.
Supreme Legislative powers
Supreme Legislative Powers are considered the highest form of lawmaking authority and refer to the parliament's authority to make and amend laws, and this power is not absolute since it is balanced by judicial interpretation, which ensures that the laws align with constitutional and moral principles . These powers are exercised without any external interference.[9]
Subordinate legislative powers
Subordinate Legislative Powers are granted by the central legislature to subordinate bodies ( state / provincial legislatures, local governments or even regulatory bodies), and these powers/delegations are limited to specific matters to prevent them from undermining legislative authority . The evolution of this legislation under the indian context reflects its flexibility in its constitutional system in balancing the separation of powers and governing efficiency. Subordinate legislation is of five types and each of them is explained based on the indian context, below.[8][10]
Colonial legislative powers
Colonial Legislative powers are those granted by the colonial powers to their subordinate government bodies of colonies which permits them to enact laws for local administration . These powers are subordinate to the colonial power and could be altered or removed as per the discretion of the colonial authority of the nation . In British India, the Governor General and his council held this power, and it was delegated to their executive branches. The Privy Council backed the idea of delegating this power to the legislature of local authorities under a judicial context.[10][8]
Executive legislative powers
Executive legislative powers are those delegated by legislative authority to the executive branch to make and enact laws or regulations, and they are exercised through orders, decrees and regulations . This power grants the executive the ability to fill gaps left by legislative action . Under the indian context, in pre - independance era , the indian supreme court and privy council had primarily allotted certain powers to it executive branches and this was widely accepted, but still done with caution since executive carrying out legislative functions was only allowed to ensure administrative needs were quickly addressed since legislation cannot quickly do so.[8] [10]
Judicial legislative powers
Judicial Legislative powers are similar to that of executive legislative powers but instead of legislative authority being delegated to executive branches, it is delegated to the judiciary in this case to intepret laws and in some cases make new laws based on judicial review/decisions. Considered relevant in common law systems, where court interpretations can lead to the creation/development of legal precedents that set a standard and act similarly to statutes and used in other cases. It is considered less prominent in the indian context unless judicial decisions require the creation of laws/ amendments to existing laws. Here , the court acts not as a primary legislator but as interpreters who guide in the application of existing laws to new cases. [8] [10]
Municipal legislative powers
Municipal legislative powers refer to the power of local / municipal authorities to establish laws laws that are specific to the disticts under their purview. These powers include and give making bye - laws, zoning , local taxes , public safety and all these are termed as municipal and are exercised by local councils/legislatures. Under the indian government , delegation of legislative powers to municipalities is done to ensure flexibility in decision making and helps in addressing issues related to the local population, which cannot be effectively addressed and managed on a larger scale under the central government or even state legislatures, at times. [8] [10]
Autonomous legislative powers
Autonomous legislative bodies are designated to a specific body or organisation with certain allowance for self-governance. This power is granted to regional governments, territories or special autonomous bodies that have the power to enact laws in certain regards , that is, given a degree of independence, even though they are part of a larger sovereign state. In India, several regulatory bodies like the SEBI - Securities and Exchange Board of India exercise these powers.[8][10]
Conditional legislative powers
Conditional legislative powers are exercised only when certain conditions are fulfilled for the legislative body to exercise such powers. For example, a law states that a law can be enacted only if specific economic or political conditions are fulfilled or it may depend on the approval by another authority to determine if the conditions have been met. In India, conditional legislation allows the executive to adapt laws to specific regions by determining their timing , situation and extending temporary laws for emerging situations, thus enhancing legal flexibility and addressing all issues efficiently. [8][11]
Sub-delegated legislative powers
Sub - delgated legislative powers refers to powers that are further delgated by primary legislative authroty to lower or subordinate bodies . these bodies will have the authority to make and enact laws only within the framework set by the parent law , primary legislation. In India, sub-delegation of legislative power is generally not permitted, following the principle of "delegatus non potest delegare," which means that a delegate cannot further delegate their powers.[8][12] For more info. Delegated Legislation
Distribution of Legislative powers
The distribution of legislative powers are schematic in nature and are laid down in the constitutional provisions between Articles 245-254.[13] All subject matters related to the legislative powers have been listed in the seventh schedule of the Indian Consitution. The lists are known as the Union list, the state list and the concurrent list. Articles 245, 246 and 246-A define legislative competence Union, State and Concurrent subject matters and GST. [14] Article 247 supports Union law by allowing the Parliament to set up additional courts.[14] Article 248, 249 and 250 grants the Parliament special powers over residuary matters state subjects during national interest or emergency.[14] Articles 251, 252, 253 and 254 handle conflict resolution between central and state laws, cooperative legislation among states and treaty obligations.[14]
Union list
The Union list contains 97 subjects, these subject matters are regarding defence, foreign affairs, communications, coinage and currency, banking, foreign and inter-state trade and commerce, income tax, census etc.[15] Any subject matter in the interest of the Union and in respect to uniformity of legisltaion is a part of the Union List. In relation to the matters enlisted within this list, the power to exercise against these matters will be in the hands of the Parliament.[15]
State list
The State list contains 66 subjects, these subject matters are regarding public order, police, public health and sanitation, local government, education and any other subject matter related to local interests.[15] Part A and Part B of the Indian Consitution containted within the First Schedule, the items within these lists will be taken care by the legislature of any state.[15]
Concurrent List
The Concurrent list contains 47 subjects, these subject matters are regarding criminal law, criminal law procedure marriage and divorce, contracts, welfare of labour, trade unions economic and social planning etc.[15] Both the parliament and the legislature of any state can exercise exclusive powers against these subject matters.[15]
state legislative assembly and parliament - law making authority
role of governor and council
Research that engages with "legislative powers" - summarize
While legislative powers are supreme in nature and plays a significant role in shaping the legal system of a country, there are various constitutional limitations that restrict its imposition.[16] The role of judciary implementing and checking legislative actions often lead to restraining the exercise of legislative powers by the Parliamnet and state legislatures. The broader nature of principles of justice and rights serves as another factor in restricting the effects of legislative powers.[16]
Constitutional Boundaries
Constitution has set certain boundaries to restrict the functions of the legislations and to carry out the legislative power. Constitutional boundaries limit legislative powers through express and implied limitations.[16] In terms of explicit limitations, the consitution explicitly specifies the powers granted to the Parliament and the state legislature through outlining the rights of the state and the citizens.[16] Any law passed should not violate constitutional provisions and must adhere to the rights of the citizens. Other than the expressed limitations, there also exist implied limitations that originate from the free nature of the government.[16] These limitations are usually based on fundamental rights, which the legislative bodies like Parliament and State legislatures need to respect when enacting laws.
Judicial Review
The role of the judiciary is to hold a law void, if there exists any inconsistencies with the consitution, this would essentially mean that the law violates the core constitutional principles.[16] Judicial review, acts as a check on the legislative actions, so that they abide by the consitutional provisions. It also serves as safeguard as against legislative overreach.
Natural justice and Equity
Factors that are part of social conduct, are principles of natural justice and equity leads to limitations on legislative power.[16] The judiciary's role is to declare and deliver these principles when the legislative body imposes laws that contradict these principles. in order to preserve personal liberty the judiciary makes sure that the legislature enacts a law that aligns with the principle of justice and equity. the judicary carries this role not by solely interpreting the notion of rights and equity but by checking if the law operates within the framework of the indian constitution.[16]
Legislative responsibility
Legislators must carefully assess the laws when they are enacted so as to avoid contravention or inconsistencies with the constitution. Since legislators are representatives as elected by the people, any action as carried out by them in respect to enacting laws will hold them liable for the same.[16] The legislators work exercise powers that are delegated to them and are thus obligated to carry out their actions wisely and decision-making process for enacting laws should be carried out ethically, abiding to the indian constitution.[16]
International understanding of legislative powers - summarizing
Different countries design legislative powers, as this structure is derived from the consitution, which is of two types, as federal states's legislative power is divided into union and state legislature whereas for unitary states the legislature power is concentrated with one body.[17]
United States of America
Complexity of governance
The demands of the society increases as the population grows within a country, needs and wants of the society are tend to, to avoid conflict of any nature leading to a complexity. This leads to addressing the requirement of an authoritative body, in the US, known as the Congress that is given the power to have extensive knowledge to legislate effectively to address the complexity arised. [18]
Knowledge requirements
To legislate effectively, the Congress must possess the ability to cognitively understand issues that go beyond human possibility.[18] The knowledge requirements of the Congress are important and complex, illustrating diverse interest of the society and the need for detailed understanding in legislative processes. If the members of the Congress don't possess vast amounts of knowledge, then this serves as a limitation to the working of the legislative system.
Legislative delegation
To solve the complexities easily, the Congress has delegated particular and specific functions of the legislature to certain bodies. This delegation of powers has been restricted by constitutional limitation, to avoid misuse of the legislative powers, thus making it mandatory for the Congress to carry out these functions by itself, and cannot delegate it to other bodies.[18]
United Kingdom
Principles of parliamentary sovereignty
The United Kingdom's legislation operates through the principle of parliamentary sovereignty.[19] The principle of Parliamentary sovereignty holds that the Parliament has the authority to delegate legislative powers without any restrictions as imposed through consitutional limitations.[19] Through this form of delegation, the Parliament is able to exercise flexibility in the enactment and enforceability of the laws.
Skeleton legislation
The United Kingdom's legislative system facilitates 'skeleton legislation', which. means Parliament can pass laws that broadens the powers of the executive.[19] Under this approach, balance of power is often shifted between the Parliament and Executive, allowing both the bodies to act upon andn exercise legislative powers.
Executive powers
As compared to a federal state's legislative system, the executive's legislative powers are not restricted to only technical subject matters but also substantial subject matters like policy making decisions.[19] The executive has the right to amend the primary legislation, the very written constitution in itself, thus questioning the accountabiliy of the executive's actions.
Challenges of Accountability
The broad flexibility imposed by the legislative system specifically in terms of distributing legislative powers cause challenges concerning the accountability and responsibility of the Parliament in the legislative process. The extent of Parliamentary oversight can in the light of the powers granted to the executive can be a disadvantage in this kind of the legislation system.
References
- ↑ D.D. Basu, Indian Polity, Chapter 5. Nature of the federal system - distribution of powers , page : 52 - 53
- ↑ Aristotle, Politics, Book 4 , sections 1289a–1291b https://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.01.0058%3Abook%3D4%3Asection%3D1299b
- ↑ John Locke, Two Treatises of Government, Ch. XI "Of the Extent of Legislative Power," page - 163 - 165
- ↑ V.N. Shukla, Constitution of India, 13th ed., edited by M.P. Singh
- ↑ https://indiankanoon.org/doc/1501881/
- ↑ https://indiankanoon.org/doc/1864214/
- ↑ https://indiankanoon.org/doc/237570/
- ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 https://blog.ipleaders.in/types-of-legislation/#Types_of_legislation
- ↑ Allan, T. R. S. (2004). Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and Authority. The Cambridge Law Journal, 63(3), 685–711.
- ↑ 10.0 10.1 10.2 10.3 10.4 10.5 Delegation of Legislative Power in India - C. H. Alexandrowicz-Alexander
- ↑ https://lawctopus.com/clatalogue/clat-pg/conditional-legislation-in-india/
- ↑ https://lawctopus.com/clatalogue/clat-pg/delegation-and-sub-delegation-under-administrative-law/
- ↑ https://legalaffairs.gov.in/sites/default/files/Concurrent%20Power%20of%20Legislation%20under%20List%20III%20of%20the%20Indian%20Constitution.pdf
- ↑ 14.0 14.1 14.2 14.3 https://blog.ipleaders.in/distribution-legislative-powers-union-states/
- ↑ 15.0 15.1 15.2 15.3 15.4 15.5 Rao, T. S. N. (1950). DISTRIBUTION OF LEGISLATIVE POWERS IN THE CONSTITUTION OF INDIA. The Indian Journal of Political Science, 11(4), 43–47. http://www.jstor.org/stable/42743255
- ↑ 16.0 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 Dale, R. C. (1901). Implied Limitations upon the Exercise of the Legislative Power. The American Law Register (1898-1907), 49(10), 580–604. https://doi.org/10.2307/3306905
- ↑ https://doi.org/10.1093/9780191996344.001.0001
- ↑ 18.0 18.1 18.2 Cheadle, J. B. (1918). The Delegation of Legislative Functions. The Yale Law Journal, 27(7), 892–923. https://doi.org/10.2307/786055
- ↑ 19.0 19.1 19.2 19.3 Democratic Legitimation of Delegated Legislation: A Comparative View on the American, British and German Law - Hermann Pünder
