Law is now regarded as the expression of the will of the people. The will of the people is expressed through representative assemblies and all other means of making laws have been swallowed up by legislation. Legislation is the most prolific and direct source of law.
Again, laws must be consistent with the changing conditions of society and in harmony with the new social environments. Old laws, which have become obsolete, are repealed and new ones substituted in their place. Under a parliamentary system the executive has a direct hand in the making of laws.
Before a Bill begins its career in the legislature, the Cabinet discusses the proposal to introduce a Bill on the initiation of a Minister.
If the Cabinet accepts the proposal, it is introduced in either House of the legislature and it is the duty of the Minister concerned to pilot the Bill through all stages of parliamentary procedure and see that it is finally passed and duly enacted. But under the Presidential system the executive is not in direct touch with legislature.
It only exerts its influence either through Presidential messages or through members of Congress who belong to the President’s party. The Government has no place in the legislature and all Bills, public or private, are introduced and defended by members of the legislature.
Legislative functions consist of two kinds of work: law- making and deliberative. In fact, there can be no separation between the two. Both are parts of the legislative functions, although some writers, as John Stuart Mill did, treat them separately.
They argue that the function of law-making, particularly drafting of a bill, is a skilled work which needs considerable experience, study and research. Mill said that a “numerous assembly is little fitted for the direct business of legislation.”
The amateurs make a bad job out of it when entrusted with this specialised function. The making of law should, therefore, be entrusted to a small committee of experts while the actual work of deliberation should be the function of the whole parliament.
To make a law really the mirror of public opinion, it is necessary that it should not be made hurriedly. It needs proper thrashing so that its contents and ends may be considered from all points of view.
For discussion two heads are better than one, and two hundred are better than two. In this respect a legislature is par excellence a deliberative body. The term parliament, which may be used for a legislature, is derived from the French word parlor, which means to talk, and parliament which means a meeting for discussion.
Legislature is a forum where thinking is done, as it consists of many persons representing numerous interests, various points of view, and different sections of the community. Deliberation, in fact, is at the heart of a democratic polity. It is the chief process by which policy is determined and laws are made.
Since deliberation is a continuous process of debate, it was long felt that political deliberation should be carefully institutionalized and that led to the development of the elaborate codes of parliamentary procedure and practices which pervade the British House of Commons, the Indian Parliament, Congress of the United States and, indeed, parliaments of all democratic countries.
This procedure leads to better and fruitful discussion, for deliberation not only gives an opportunity to each participant to promote the views and interests of the political party or group he represents, but also permits him to adjust his own views and even to change his opinions by listening to others.
For this reason there are, generally, three readings for every legislative bill before it is finally voted upon. The first reading comprises only introduction of the measure and generally, there is no debate or discussion.
After the Bill has been introduced, it is printed and members get its copies to be ready for the second reading. On a day fixed in advance, the Bill is read for the second time.
This is a crucial stage in the life of a Bill. The supporters and opponents of the Bill participate in discussion and stoutly present their respective points of view. There is a general discussion and no amendments to the Bill are moved. Upon the conclusion of the debate votes are taken. If the majority votes in its favour, the Bill goes to the next stage. If it is defeated, it lapses.
After the second reading, the Bill automatically goes to an appropriate committee of the House. The size of modern legislatures makes it impossible for full consideration to be given to all measures by all members. Therefore the committee system has evolved. Here the Bill is discussed, voted on clause by clause, and probably amended.
The committee may even seek information from any source with respect to any point, invite experts from outside and summon anyone for evidence, both oral and documentary. After the committee stage, it is referred back to the whole House for further discussion. There are many other rules of procedure.
The objects aimed at are orderly and efficient dispatch of business, the prevention, on the one hand, of precipitate and ill-considered action, and, on the other, fruitless prolixity of debate. Deliberation is, indeed, hammering legislation and chiselling it into a law.
We are well aware of the conflict between the Stuarts and Parliament in Britain. It was all about financial matters and the principal means by which Parliament mounted to power was the power of the purse.
The fact of representative democracy is the control and regulation of national finances by the legislature, and this is its most important function. It is a fundamental principle of public administration, and one which is nowadays generally recognised in all civilised countries, that no taxes shall be levied or expenditure authorized without the approval of the representatives of people.
The theory ‘no taxation without representation recognizes the supremacy of the legislature in raising revenues and incurring expenditure. In some countries, like the United States, war can be declared only with the consent of the legislature.
This power is vested in the legislature obviously for the reason that war entails stupendous expenditure and the verdict of the representatives of the people must be taken regarding the justification of war and the expenditure which is to be incurred in fighting it out.
In Britain, war may be declared by an executive act, but grants are made available by Parliament. The executive cannot sanction expenditure without parliamentary approval. In this way, the legislature controls the domestic and foreign policy of the State.
The principal financial function performed by a legislature from year to year is the presentation, consideration, and authorization of the budget. Viewed in simple outline, a budget is the nation’s annual statement of accounts which shows; on the one hand, estimates of financial expenditure and, on the other a calculation of anticipated revenues.
The financial year generally begins on April first and the estimates of the coming financial year are presented to the representative chamber of the legislature in the second or third week of February. The estimates are discussed by the legislature and the number of days allotted for their consideration varies from two to three weeks or even more.
The debate gives an opportunity to the government to explain and defend their proposals and to the Opposition an opportunity to air their grievances or to criticise the general policy of Government.
Nowhere in the world does a popular assembly actually participate in administration. Its proper jurisdiction is that of superintendence and control. But in countries where the parliamentary or cabinet system prevails, the control of the legislature over the executive is direct and immediate. The latter is responsible to the former for all its actions.
Questions and interpellations are asked to seek information from the government on matters of administration. If any act of government is resented by the public, their representatives may move a vote of censure and condemn that action.
If the government abuse their trust or act in flagrant disregard of the public opinion, the legislature may pass a vote of no-confidence and expel them from office and appoint their successors.
Strict control of the executive is enforced by the review of government’s policies involved in discussions of the budget and the approval of proposed expenditure. If the government fails to get supplies, it must quit office and make room for others who can carry the legislature with them.
In the United States, the Upper Chamber of Congress, the Senate, is vested with certain specific administrative powers. The Senate shares with the President the power of making all federal appointments. Again, all treaties negotiated and concluded by the President are to be ratified by a two-thirds majority of the Senate.
The Senate also possesses, by usage, the power of investigating into various administrative scandals and cases of corruption. The investigating committees so set up can summon witnesses, official and non-official, call for papers and documents, and seek any other kind of information which may be deemed necessary.
In a Presidential type of government the investigating committees usefully serve the purpose of controlling the executive. The legislature’s control over the executive, thus, keeps the government fully informed of what the country is thinking of, what it wants and especially of what it will not stand.
Under a parliamentary system control and responsibility naturally go together. Since responsibility of government means its resignation from office whenever the policy of government proves fundamentally unacceptable to the popular assembly, an obligation rests on the house to exercise a day-to-day control over the Ministry in such a way that fundamental disagreement between the executive and the representatives of the people will be clear and manifest.
If the actual and possible mistakes of the government were not apparent, the government might become irresponsible. So important is the function of controlling the executive that many statesmen would assign it to the legislature as it’s first and foremost duty. Bagehot placed legislation last among the functions he allocated to parliament. Taylor, on the other hand, considers it a bit odd suggestion.
His opinion is that the very essence of parliament is its power to make laws. “Indeed much of the force of the criticisng power of the House,” he says, “is derived from this fact: that it is a body which can, by means of passing laws, do anything it likes.”
Laski does not support Taylor’s opinion. To him the function of legislation is not the only function of parliament. “its real function is to watch the process of administration to safeguard the liberties of private citizens.”
The obligation of controlling the Government is more urgent today than before. The functions of the Government are so extensive now that they touch the very bones of individual lives. “The government departments,” aptly remarks Herman Finer, “are virtually great monopolies; they need a strong force outside them to shake them up.” The Opposition in the legislature does this job on so many counts.
The legislature in every county, generally, consists of two Houses. One is known as the Upper House and the other as the Lower House. The Upper House, in most countries, performs certain judicial functions. In Britain, the House of Lords is the highest court of appeal.
The Senate, in the United States, sits as a court of impeachment for the trial of the President and the Vice-President, while the charges of impeachment are preferred by the House of Representatives. Similarly, the Senate in France, according to the Constitution of 1875, was empowered to sit as a High Court of Justice for the trial of the President and the Ministers for high crimes.
In India, either of the two Houses at the Centre can prefer a charge for the impeachment of the President. If the charge is preferred by the House of the People (Lok Sabha), the Council of States (Rajya Sabha) investigates the charge. If the Council of States prefers the charge, then the House of the People investigates it.
But instead of making the investigation itself, the House may delegate the work of investigation to any Court or tribunal appointed by the House for that purpose. The impeachment succeeds if the House investigating the charge passes a motion by a two-thirds majority of the total membership of the House that the charge has been sustained.
Constituent Functions. Legislatures have also constituent functions to perform. Parliament in Britain is both a legislative body and a constituent assembly. It can change or abrogate any law whatsoever and by the same procedure.
Proposals to amend the United States’ Constitution must be made by a two-thirds majority of the Congress or by a national Convention which Congress calls at the request of the legislatures of two- thirds of States.
Bills to amend the Constitution of India may originate in either Chamber and be passed by each House of Parliament by a majority of its total membership as well as by a two-thirds majority of the members present and voting. Some specified provisions are, in addition, to be ratified by half the number of states of the Union.
Not only do legislatures usually elect their own officers, but they may also elect some executive officials. The elected members of both Houses of Parliament in India form a part of the Electoral College for the election of the President.
The United States Congress has electoral functions too. As a matter of routine, it meets in joint session every fourth year to count the electoral votes cast for the President and the Vice-President. If no candidate receives a majority of the electoral votes for President, the House of Representatives selects, each State voting as a unit, the President from among the candidates with three highest votes.
When no candidate secures a majority of the electoral votes cast for the Vice-President, the Senate makes the choice from among the two candidates with the highest number of votes. The President of France was elected by the joint action of the two legislative chambers. The Swiss legislature elects the judiciary, members of the Federal Council, and the head of the civil service.
Parliament in India has the power to move for the removal of judges of the Supreme Court and of the High Court’s on the ground of proved misbehaviour and incapacity, and the address for such a removal must be passed by a two-thirds majority in each House. In Britain judges can be removed only by a joint address of both Houses of Parliament to the Crown.
Judges in the United States can be removed by the process of impeachment and the procedure followed is exactly the same as in the case of the President, that is, the Senate sits as a court of trial.
Legislatures also work as organs of inquest or inquiries. They often appoint commissions of inquiry relating to agriculture and industry or to find out the causes of social unrest, or mob violence, etc. Such commissions of inquiry collect information, receive memoranda, hear evidence and make recommendations.
In order that the executive may not interfere in the legislative branch, a good number of constitutional safeguards are provided. It chooses its own Speaker and other officers and adopts its own rules of procedure and business.
Its members may not be arrested while attending sessions or travelling to and from them for any reason except the commission of crimes. They may not be punished for anything they say in debate except by the House to which they belong.