An Analysis of the Power to Issue Ordinance in India

2019 ◽  
Author(s):  
Chandrasekaran Mridul Bhardwaj
Keyword(s):  
Present Form ◽  
Legislative Process ◽  
Indian Constitution ◽  
Legislative Power ◽  
British Rule

Abstract Ordinances making power is one of the most controversial powers that has been vested with executive in India. This power is a substitute of legislative power of the legislature and is meant to be used only in situations comprising of exigencies. However, in practicality this power has often been misused by the executive, and is used to circumvent the legislative process. Due the misuse of this power, it is imperative to examine its history and scope. The power to make ordinance have been a reminiscent of the British rule in India. It was conceptualized through the various Government of India acts, and then post-independence it was adopted under the Indian Constitution. Though the present form of ordinance making power is much more curtailed when compared to the British era, still it leaves ample discretion at the hand of executive to use it erroneously for political gains.

12. The European Parliament

2019 ◽  
pp. 176-188
Author(s):  
Charlotte Burns
Keyword(s):  
Internal Structure ◽  
European Parliament ◽  
The Political ◽  
Legislative Process ◽  
National Parliaments ◽  
European Elections ◽  
Legislative Power ◽  
European Public ◽  
Political Groups ◽  
Representative Function

This chapter focuses upon the European Parliament (EP), an institution that has seen its power dramatically increase in recent times. The EP has been transformed from being a relatively powerless institution into one that is able to have a genuine say in the legislative process and hold the European Union’s executive bodies (the Commission and Council, introduced in Chapters 9 and 10) to account in a range of policy areas. However, increases in the Parliament’s formal powers have not been matched by an increase in popular legitimacy: turnout in European elections is falling. Thus, while the EP’s legislative power is comparable to that enjoyed by many national parliaments, it has struggled to connect with the wider European public. The chapter explores these issues in detail. In the first section, the EP’s evolution from talking shop to co-legislator is reviewed; its powers and influence are explained in the next section; the EP’s internal structure and organization are then discussed with a focus upon the role and behaviour of the political groups, and finally, the European Parliament’s representative function as the EU’s only directly elected institution is discussed.

5. Parliamentary sovereignty

2019 ◽  
pp. 99-123
Author(s):  
Anne Dennett
Keyword(s):  
Legislative Process ◽  
Bill Of Rights ◽  
House Of Commons ◽  
Legislative Power ◽  
Legal Limits ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Uk ◽  
A Current ◽  
Law Making

This chapter focuses on parliamentary sovereignty. The term ‘Parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament's legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament's legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.

Revisiting Section 81 of the Constitution: The Commencement Date of Legislation (Legislative Power) Distinguished from Promulgation (Legislative Process)

2017 ◽  
Vol 30 (1) ◽  
pp. 193-220
Author(s):  
Loammi Wolf
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legislative Power ◽  
Parliamentary Sovereignty ◽  
Head Of State ◽  
Constitutional State

Section 81 of the Constitution regulates promulgation through publication as part of the legislative process (ie, a procedural norm). The provision further creates a presumption that unless the legislature explicitly determines a commencement date in an Act it enters into force upon promulgation. The commencement date of legislation is thus part of the contents of a statute (ie, a substantive norm), which must be determined by the legislature when adopting the legislation. In a number of judgments, however, the Constitutional Court espoused the idea that the commencement date is part of the legislative process instead of being part of the contents of a statute. Thus it allowed the legislature to delegate its power to determine a commencement date for legislation to the president as head of state in transgression of section 44(1)(a)(iii) of the Constitution: this provision only mandates a delegation of core legislative powers to another legislative body. The confusion is partly due to an initial tendency of the Constitutional Court to interpret constitutional provisions in isolation and partly to the unconsidered re-importation of Westminster constitutiona common law. In the Westminster system a delegation of the power to determine a later commencement date for legislation (ie, after promulgation) to the executive and/or head of state was justified in terms of the doctrine of parliamentary sovereignty. Parliamentary sovereignty, however, was abolished in 1994: such a delegation of power is no longer compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state. Compatible with sections 44(1)(a)(iii), 55(2)(b)(i), 79 and 87 of the Constitution. Lately, the Constitutional Court even ruled that the power to determine a commencement date for legislation is an executive power, which is to be exercised in terms of sections 85 and 101 of the Constitution, although section 81 explicitly confers this power upon the legislature. A reconsideration of the Court’s interpretation of section 81 is therefore overdue: it not only compromises legislative power and the separation of powers, but goes to the substance of the rule of law and legal certainty as foundational values of the constitutional state.

6. Parliamentary sovereignty

2021 ◽  
pp. 123-145
Author(s):  
Anne Dennett
Keyword(s):  
Legislative Process ◽  
Bill Of Rights ◽  
House Of Commons ◽  
Legislative Power ◽  
Legal Limits ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Uk ◽  
A Current ◽  
Law Making

This chapter focuses on parliamentary sovereignty. The term ‘parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament’s legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament’s legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.

28 Arts. 70 et seq. GG: Legislation

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Federal Government ◽  
The State ◽  
Federal State ◽  
Legislative Process ◽  
State Law ◽  
Legislative Power ◽  
Division Of Powers ◽  
Federal Constitutional

This chapter discusses the relevant provisions of Art. 70 et seq. of the Grundgesetz (GG) with regard to legislation, and more specifically the division of legislative power between the federal government and the states. The division of powers between the federal state and the states means that, for each area, either one is responsible. In the case of conflicts between federal and state law, it generally suffices to determine that either the federal state or the state lacks the required legislative power. This observation probably remains accurate even after the federalism reforms of 2006. The chapter first considers the apportionment of legislative power between the federal state and the states after the 2006 federalism reforms, focussing on the exclusive legislative powers of the federal state and its newly regulated concurrent legislative power, before analysing the Federal Constitutional Court's jurisprudence concerning legislative powers and the legislative process.

scholarly journals Legislative power as a legitimate basis for legislative activity

2021 ◽  
Vol 66 ◽  
pp. 19-26
Author(s):  
Z.O. Pogorelova
Keyword(s):  
Public Relations ◽  
Separation Of Powers ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legislative Power ◽  
Advantages And Disadvantages ◽  
The People ◽  
Legislative Activity ◽  
The Government ◽  
Law Making

The article is devoted to the study of the nature of the legislative pover and the disclosure of its role to serve as a legitimate basis for legislative activity. The provision is substantiated that the parliament, as a representative body of the whole people, has the highest level of legitimacy and on this basis exercises the right to legislate public relations according to the principle of separation of powers, including the exclusive right to regulate the most important issues of organization and exercise of power (article 92 of the Constitution of Ukraine). The relationship between the concepts of legislative power and legislative activity of the parliament is revealed and the recognition of the legislative activity of the parliament as the main, key function of the parliament and the organizational way of implementing the legislative power of the state is substantiated. The conditions, scope, limits, advantages and disadvantages of the practice of delegated legislation, which is widespread in democratic countries, as well as the legally sanctioned government rule-making on the basis of the instructions of the government provided by separate laws are investigated. The powers of the parliament in the field of law-making  activity are analyzed, the source of which is the legislative power delegated by the people to the Verkhovna Rada of Ukraine, due to which the parliament receives from the people the primary right to carry out its law-making activity. The essence of legislative activity carried out within the legislative process is revealed, as activity on revealing of need for legal regulation of public relations, estimation of draft laws, their completion, carrying out professional examination, discussion and completion in committees, i.e. all actions directed on proper elaboration of laws’ projects. It is noted that the legislative process is not only and not so much limited by parliament, but also includes pre-parliamentary stages of work on the draft law (initiation, drafting, public discussion, examination, coordination with interested bodies and organizations). The general characteristic of subjects of law-making activity is given, the nature of powers of parliament on the organization and implementation of control over law-making activity is analyzed.  

Part V Federalism, Ch.26 Legislative Competence: the Union and the States

2016 ◽  
Author(s):  
Niranjan V
Keyword(s):  
Indian Constitution ◽  
Legislative Power ◽  
The Law ◽  
Indian Law

This chapter examines the law of legislative competence in India. After providing an overview of legislative competence in the Indian Constitution, it explains the distinction between legislative power (‘competence’) and the exercise of legislative power (‘repugnance’). In particular, it considers early clashes in the money-lending litigation, the argument of Sir Walter Monckton KC and the Advice of Lord Porter in the Prafulla Kumar Mukherjee case, and the birth of ‘aspect theory’ in Indian law. It then explores how competence and repugnance have impacted the legislative relationship between the States and the Union. It argues that the failure to separate competence and repugnance has given rise to new ‘doctrines’ in India, including aspect theory, and concludes by revisiting a long-standing controversy in Indian law about the applicability of Article 254(1) to legislation outside the Concurrent List.

Norms and Politics

2019 ◽  
Author(s):  
Arvind Elangovan
Keyword(s):  
Political History ◽  
Civil Servant ◽  
Indian Constitution ◽  
Indian Politics ◽  
British Rule ◽  
Political Interests ◽  
The World ◽  
Ruling Elites

During the twilight of British rule in India, a little known civil servant, Sir Benegal Narsing Rau (1887–1953) was sought after by the ruling elites—both British and Indian—for his immense knowledge of the nature and working of the constitutions of the world as well as his reputation for being just and impartial between competing political interests. Yet, Rau’s ideas and his voice have largely been forgotten today. By examining Rau’s constitutional ideas and following their trajectory in late colonial Indian politics, this book shows how the process of the making of the Indian constitution was actually never separated from the politics of conflict that dominated this period. This book demonstrates that it is only by foregrounding this political history that we can simultaneously remember Rau’s critical contributions as well as understand why he was forgotten in the first place.

In Congress Reassembled: Reconciliation and the Legislative Process

1981 ◽  
Vol 14 (04) ◽  
pp. 748-751
Author(s):  
Allen Schick
Keyword(s):  
Budget Process ◽  
Legislative Behavior ◽  
Legislative Process ◽  
Federal Programs ◽  
Legislative Power ◽  
The Future ◽  
Legislative Activities ◽  
Traditional Roles ◽  
Reconciliation Process

Reconciliation forces Congress to consider issues in redistributive terms and alters traditional roles and relationships, but this legislative technique may be short-lived.The 1981 battle of the budget might leave a deeper imprint on legislative behavior than on federal programs and expenditures. The process that produced the omnibus reconciliation bill was extraordinary in its scope and in its integration of diverse legislative activities. More than 30 House and Senate committees were drawn into the reconciliation process and more than half of the Members of Congress participated in the conferences that resulted in the reconciliation decision. The outcome was not a perfectly consistent set of budget decisions, but for a legislature that thrives on the dispersion of power, reconciliation demanded much more cohesion and coordination than Congress normally achieves.It is too early to determine whether reconciliation will become a permanent feature of the congressional budget process or whether it will be applied as extensively in the future as it was in 1981. If it were confined to a few committees and only changed the budget at the margins, reconciliation might not affect basic legislative roles and relationships. But if it continues to demand the active cooperation of numerous committees and tries to change major parts of the budget, reconciliation would certainly lead to a redistribution of legislative power.

scholarly journals HISTORICAL EVOLUTION OF FEDERAL FINANCES IN INDIA

2012 ◽  
Vol 9 (1) ◽  
Author(s):  
K. Gopa Kumar
Keyword(s):  
Fiscal Federalism ◽  
Initial Period ◽  
Historical Evolution ◽  
Indian Constitution ◽  
British Rule ◽  
The Government

The paper confirms that the provisions of fiscal federalism laid out in the IndianConstitution are connected to the legacy of the British rule in India. Applying historicalanalysis the author divides the period from the starting of British imperial administration inIndia to the enactment of Indian Constitution into five different phases on the basis of theevolution of Centre-Province financial relations. The principles of fiscal federalism in Indiagradually evolved from highly centralized fiscal governance during the initial period of theBritish rule until being manifested in the Constitution. Various parliamentary enactments,executive directions, committees and commissions as well as individual interventioncontributed to this transformation. The paper further lays out the unique features of theIndian Constitution such as mutually exclusive tax domains and various mechanismsaddressing fiscal imbalances due to the Government of India Act of 1935 enacted by theBritish Parliament. It concludes that while British authorities designed the system of fiscaladministration in India after their preferences, the makers of the Indian Constitution preferredto retain the same provisions with minor variations in the Constitution of independent India.

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