Political Science Department, St.Philomenas College-Mysore



WORLD CONSTITUTIONS] > WORLD CONSTITUTIONS(Revised & Enlarged Edition)ii iiiWORLD CONSTITUTIONS(Revised & Enlarged Edition)VISHNOO BHAGWAN VIDYA BHUSHANSTERLING PUBLISHERS PRIVATE LIMITEDviSTERI ING PUBLISHERS PRIVATE; LIMITEDL - 10 Green Park Extension. New Delhi-110016Tel : 6191023, 6191784/85; Fax : 91-11-6190028E-mail: ghai@nde..in Website : World Constitutions? 1998, Vishnoo Bhagwan & Vidya BhushanISBN 81 207 19379First Edition 1984Second Revised Edition 1986Third Revised Edition 1987Reprint 1989, 1991Revised and Enlarged Edition 1993Reprint 1994Revised and Enlarged Edition 1995Sixth Revised Edition 1997Seventh Revised Edition 1998Reprint 1999, 2000, 2001All rights are reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, mechanical,photocopying, recording or otherwise, without prior written permission of the original publisher.PRINTED IN INDIAPublished by Sterling Publishers Pvt. Ltd., New Delhi-110 016.Printed at Ram Printograph (India), Delhi-110051.vPREFACE TO THE REVISED EDITIONSince the publication of the last revised edition of this book in 1997, some significant constitutional and political developments in Great Britain, theUnited States of America, France, Canada, China and Japan have taken place. The image of the Royal family in the UK has been tarnished in the wake of theCharles-Diana affair and eventually the latter's fatal accident in Paris in September 1997. Thus public pressure is gaining momentum for stripping herMajesty of some of the royal privileges and remaining political powers. In a Referendum held on September 11, 1997 Scotland has voted for Home Rule. InMay, 1997 elections, the Labour Party swept the polls and Tony Blair became the youngest Prime minister in recent British History after James Collaghan(1974).The alleged sex scandals against President Clinton in the USA seem to have marred the electoral prospects of the Democratic Party at least at the next Presidentialpolls. In France, Lionel Gospin —a Socialist, took over as the Prime Minister replacing Alian Juppe — a Conservative on June 5, 1997. A perpetual conflictbetween President Chirac — a Conservative and Prime Minister Jospin — a Socialist is being visualised. Canada had its General Election in June 1993 whereinthe Liberal Party recaptured power but with a slender majority.In China, Deng — the architect of new revolution responsible for ushering in a new era of market economy and political liberalism breathed his last on February19, 1997. At the 15th National Peoples' Congress (March, 1998) Jiang Zamin was re-elected the President of China. Premier Le Peng was replaced by Zhu Rongi.On July 13, 1998, Hashimoto — P.M. Japan stepped down owning responsibility for the defeat of his Liberal Democratic Party in the Upper House Electionsheld on July 12, 1998. Keizo Obuchi was elected President of the ruling party and took over as the Prime Minister of Japan on July 30, 1998.In the revised volume the textual matter has been updated in the light of the above developments.Vishnoo BhagwanVidva Bhushanvi viiPREFACE TO THE FIRST EDITION"For forms of government let fools contest, whate'er is best administered is best." Though much water has flowed down the Thames since Alexander Pope happenedto pass these remarks about the forms of governments, yet an analytical appraisal of the functioning of various types of governments reveals that theseremarks have perhaps eternal value. In this volume, we have tried to portray dispassionately functioning of model parliamentary and presidential democracieslike that of the UK, Japan and the USA. Besides, adoption of British model by the Dominions like Canada and Australia and making it successfully workable,in a federal mechanism of government, has been critically appraised.The two leading Communist countries, the USSR and Communist China, also find a prominent place in this volume. The style of functioning of Communist governmentswhich claim to be the real and thorough-going democracies unmasks the inner urge of even dictatorial regimes to wear the garb of perfect democracies.The Swiss democracy, the only direct democracy in the world and a conglomeration of presidential and parliamentary democracies had also been portrayed analytically.A comparative study of the constitutions of the major countries of the world will enable a reader, who cares to learn about the functioning of the variousforms of governments, to form an opinion as to which of the political systems is worth adoption and which circumstances are congenial to the blossomingof a particular political system.The volume is quite comprehensive and irrelevant details have been avoided. The facts have been stated in a simple and lucid style which will make readingof the work quite palatable.For the convenience of the students of Political Science, each constitution is being brought out separately also. This, we hope, will help cater to thevaried needs of students of universities all over the country.viiiSuggestions if any for the improvement of the volume will be gratefully acknowledged and if found relevant, will be incorporated in the next edition ofthe book.Vishnoo Bhagwan Vidya BhushanixCONTENTSPreface to the Revised EditionVPreface to the First EditionviiThe Constitution of Great Britain1.Growth of the English Constitution12.Nature of the English Constitution163.The Crown354.The Cabinet505.The Civil Service776.The British Parliament887.The British Parliament: House of Lords1178.The British Judiciary1339.Local Government in England14210.Political Parties in England154The Constitution of the USA1.Introductory12.Salient Features of the American Constitution73.The American Federalism and Checks and Balances174.The American Presidency285.The Congress: Its Composition646.The Senate: Its Special Powers827.The Powers of Congress958.The Congress at Work1129.The Federal Judiciary13410.Political Parties152The Constitution of Switzerland1.Introductory \/12.Main Features of the Swiss Constitution53.Federal Legislature15x4.The Swiss Executive (Federal Council)265.The Federal Judiciary396.Direct Democracy in Swizerland467.Political Parties in Switzerland618.The Cantonal Government60The Constitution of France1. The Historical Background12.The Nature of the Constitution103.The French Executive184.The French Parliament33xi5.The French Judiciary536.Local Government in France627.Political Parties in France75The Constitution of Japan1.Introductory12.General Features143.Fundamental Rights204.The Japanese Executive265.The Diet416.The Judiciary627.Political Parties70The Constitution of Canada1.Introductory12.Features of the Constitution53.Fundamental Rights and Freedoms124.The Dominion Executive165.The Dominion Parliament266.The Judicial System397.Political Parties438.Canadian Federalism479.Amendment Procedure5210.Statute of Westminster (1931) and Legal Status of Canada55The Constitution of Australia1.The Historical Background12.Main Features63.Executive Government124.The Federal Parliament175.The Federal Judiciary256.Political Parties in Australia297.The Australian Federation14The Constitution of the People's Republic of China1.Introductory12.Main Features of the Old Constitution of China93.Features of the 1978 Constitution of China264.Salient Features of 1982 Chinese Constitution335.Constitutional Structure of China406.The Standing Committee of NPC437.The President of China478.The State Council509.The Judicial System5410.Rights and Duties (Articles 33 to 56)6011.The Communist Party of China71The Constitution of USSR (Erstwhile)1.Historical Background12.Features of the Brezhnev Constitution143.The Soviet System244.Fundamental Rights and Duties295.The Central Government of the Soviet Union456.The Council of Ministers597.The Soviet Judiciary688.The Communist Party of the USSRN819.Soviet Federalism and the Regional Government9810.Democratic Centralism11111.Nature of Soviet Polity11712.Procedure for the Amendment of the Constitution12513.Some Important Structural Amendments since 1988128Bibliography143IndexesGreat Britain1USA3Switzerland4France6Japan7Canada9Australia10People's Republic of China11USSR (Erstwhile)12xii 1THE CONSTITUTION OF GREAT BRITAIN1 GROWTH OF THE ENGLISH CONSTITUTIONThe English Constitution is the product of evolution and has been incessantly in the process of development, gradual and almost unconscious. Freeman writes,"The continual national life of the people, notwithstanding foreign conquests and internal revolutions, has remained unbroken for fourteen hundred years.At no moment has the tie between the present and the past been wholly rent asunder; at no moment have Englishmen sat down to put together a wholly newconstitution, in obedience to some dazzling theory. Each step, each change in our law and constitution has been, not the bringing in anything wholly new,but the development and improvement of something that was already old."1 In this chapter we propose to briefly analyse the process of the growth of theEnglish Constitution; how the different political institutions came into being and how they assumed the present form. For this purpose we shall divideour study into the following main periods:(i) Anglo-Saxon period(ii) Norman period(iii) Angevin or Plantagenet period(iv) Tudor period(v) Stuart period(vi) Hanover periodAnglo-Saxon PeriodThe first period to which we can trace the growth of English political institutions is that of Saxon settlement. The Saxons drove the original people -the Celts - westward and occupied the larger part of England and settled firmly by the fifth century. The Saxon rule continued till 1066 when William ofNormandy conquered England.2The Saxon period contributed the institution of kingship to England. During this period England was a loose aggregation of tribal Commonwealths till theseven "Kingdoms', - East Anglia, Merica, Northumberland, Kent, Sussex, Essex and Wessex, were one by one absorbed "into larger areas. Ultimately Wessexestablished its sovereignty over the entire occupied portion of the country in the ninth century and thus the institution of Kingship - a single sovereign- was born. As Ogg writes, "Monarchy in Britain is an indigenous institution, not an importation."2During this period the position of the king was weak. His influence depended upon his personal wisdom and vigour. He did not occupy the throne by stricthereditary right. He was hereditary only in the sense that he usually belonged to the same family, but if the eldest son was not acceptable to the Witenagmot,"a council of wise men," it could pass him over and choose an heir other than the eldest son. The selection could also be done from outside the rulingfamily if necessity arose. Thus, the Anglo-Saxon kingship was partly hereditary and partly elective.The Witan or Witenagmot was an important body consisting of important men, lay and ecclesiastical. It had no fixed number and consisted of only such wisemen of the kingdom whom the king was pleased to summon, though there were some people who could not be left out by the king. It customarily included thechief officers of the royal household, the bishops and other leading churchmen, the aldermen of the shires and some high officers of the State. The Witanmet periodically in different parts of England as there was no national capital at that time. It was presided over by the king who directed its business.The functions of the Witan were not clearly defined. It performed such functions as the king wished it to perform. Generally it gave its assent to the king's'dooms' or laws, made treaties and alliances, approved taxes or levies, raised land and sea forces whenever necessity rose, appointed and deposed the bishops,aldermen of shires and regulated ecclesiastical affairs. It also sat with the king as the Supreme Court of Justice. Though the Witan was not a representativebody in the modern sense of the term, yet it was nevertheless regarded as reflecting the people's will. It could depose the king in case he acted arbitrarilyand enthrone a king not related to the royal family. That is why the kingship never became absolute during the Anglo-Saxon period. The Witan may be regardedthe prototype of the present Parliament and the3present Cabinet. It promoted the idea that the king should not act according to his own caprice but he should act "in council."Aside from kingship, another important contribution of the Anglo-Saxon period is the institution of local government. During this period the majority ofthe population lived in small villages, agriculture being their principal occupation. Each village formed a township and was a unit of local government.The local government machinery consisted of a mote or town meeting and certain elective officers. A group of townships formed a hundred which probablycontained a hundred warriors or a hundred heads of families. Each hundred had a local assembly consisting of the reeve and "four hood men" from each township.The hundred mote was presided by a hundred-man who was sometimes elected and sometimes appointed by a landowner who was lord of the region.Above the hundred was the shire which was formed out of the hundred. The shire had its own mote which in the early days consisted of all the freemen whocared to attend. After lapse of sometime it came to include only the larger landowners, principal church officers, reeves and other persons from townships.The shire mote met twice a year and transacted mainly judicial business, though sometimes it also performed legislative and administrative work. The chiefofficer of the shire was the alderman who was appointed by the king. The shire may be regarded the progenitor of the modern county.The significance of local government of the Saxon period, "lies not so much in the modem survival of ancient jurisdiction, like the shire, or of ancientoffices like the sheriff s as in the formation of an ineradicable habit of local autonomy, which has ever been one of the most conspicuous characteristicsof the British people."3 In the words of Dr. Munro, "There has been no time during the past thousand years when Englishmen have hot been electing somebodyto represent them somewhere in township, shire, borough, parish, county or parliament."4Thus, two main institutions of British Government developed during the Anglo-Saxon period. These were (i) kingship and (ii) local self-government. Kingship,as we shall study later, is the core of the British Constitution.Norman PeriodWith the Norman conquest in 1066 a new chapter opened in the growth of the British Constitution. The first significant development of the Norman periodwas the growth in the royal power. As stated above the king of the Saxon period was weak. So the first task to which William4set himself was to make the king the real master. He was accustomed to vigorous centralised rule in the continental dominion and he wanted to establishthe same in England. For achieving this object he took a number of steps. Firstly, he confiscated estates of the great earls and divided them out amonghis trusted supporters whose foremost obligation was to be obedient to the king. Feudalism, which had hitherto been only rudimentary involving relationshipsof an economic nature, now acquired a highly organised and political character. The second step which William took was to make himself the head of thechurch and assume the right to appoint the bishops thereby asserting a supremacy of the State in ecclesiastical affairs. Most important of all the steps,however, was to establish supremacy in the fields of justice and administration. The system of local justice was gradually replaced by the system of royaljustice. The royal judges went about from county to county hearing cases, deciding them on uniform lines, harmonizing local customs and fusing them intoa "common law." In the field of administration he increased the powers of the sheriffs who were appointed by the king and were responsible to him. Thesheriffs enforced the royal will in the country, maintained law and order in the land and collected revenues due to the king. Thus by gradual steps theNorman kingship became strong whereas the Saxon kingship had been weak. The significance of all this royal centralisation was far reaching. In the wordsof Munro, "The growth of the royal power under the Normans and their successors paved the way for ultimate triumph of English democracy."The Witan of the Saxon period came to be known as the Great Council or Magnum Concilium. Like the Witan it included royal officers, church dignitaries andother leading men of the kingdom who were summoned by the king. There was no elective element in the Magnum Concilium. The functions of the Magnum Conciliumwere more or less identical to those of the Witan. It helped decide upon policies of State, supervised the work of administration, assisted in making andamending the laws and sat as the highest court of justice. It may be noted that the actual power of the Magnum Concilium was lesser than that of the Witanbecause the Norman kings had acquired greater authority in comparison to the authority of the Saxon kings.The Magnum Concilium met only thrice a year. To help the king carry on the government during the interval when the Magnum Concilium was not in session,another small body called Curia Regis of Little Council emerged out of the Magnum Concilium. The Curia Regis5was a sort of inner circle of the Great Council and included the chamberlain, the chancellor, the constable, the steward and other officers of the royalhousehold. These persons were always with the king and accompanied him wherever he went. The Curia Regis performed the functions which the Great Councilperformed. The jurisdiction of each was not rigidly separated. The king used to refer matters of State to either of these bodies according to his direction.Sometimes, he did not refer a matter at all. He was not bound by their advice. However, the larger questions of justice, finance and public policy wereheld up for consideration by the Great Council. The habit of the Norman king to call the leaders of the people together and seek their advice on Statematters, later on hardened into a usage which eventually became a constitutional principle. Out of the plenary sessions of the Great Council the BritishParliament arose; out of the Curia grew the Privy Council (and the Cabinet), the exchequer (the treasury), and the high courts of justice. So the frameof government in twentieth century England owes much to this ancient council with its big and little sessions.5Angevin or Plantagenet PeriodThe political institutions established by William, which had been wrecked during the reign of Stephen (1135-54), were revived by Henry II who founded thePlantagenet dynasty. Henry was a man of legal temperament, adroit and energetic. He handled the affairs in a masterful way and infused new life into theadministrative and judicial systems. He introduced a distinction between the administrative and judicial functions of the Curia Regis and bifurcated itsmembership - one section acted as a royal council, later known as the Privy Council, while the other section confining itself to judicial functions becamethe parent of the exchequer and the high courts of Justice.At the same time a development was taking place in the Magnum Concilium. Henry II summoned it more frequently and referred all important matters to it fordeliberation. As its work became more extensive, its membership also began to grow. The first enlargement came in 1213 when King John addressed writs tothe sheriffs directing them to send "four good knights" from every county to attend a meeting of the Great Council of Oxford. The motive of King John ininviting these knights was not to give any right of representation to the people but to make resistance to his proposed taxes the least possible. KingJohn was a tyrant, wicked and a despot. Due to his despotic acts he lost the confidence of many of his supporters. Consequently the powerful6section of the country, the barons, presented to King John, the Great Charter, the Magna Carta on June 15,1215, and threatened a Civil War in case 'he refusedto assent to it. John had no way but to assent to it. Being illiterate he could not sign it but the Seal of the State was affixed on it. The charter providedthat the king must not act in certain matters without the consent of the General Council. It also provided that all the great barons should be summonedindividually, and the knights of the shire by writs addressed to the sheriffs. The Magna Carta has been regarded as a charter of civil liberty for theBritish people. Not going into the question whether Magna Carta was such or not, we may, however, remark that the charter was strongly baronial in toneunder which the barons wrested some advantages for themselves and not for the people. From the constitutional point of view the charter laid down the principlethat the authority of the king was not unlimited and arbitrary and the king could not impose certain taxes without the assent of the Great Council. TheMagna Carta that way marked a milestone in the growth of limited monarchy in England.In 1254 Henry III summoned two knights from each county who sat in the "parliament" convoked in that year. No agreement could be reached between the kingand the barons over the proposed taxes with the result that they fell to quarrelling and eventually resorted to arms. The king was defeated and Simon deMontfort, the leader of the barons, emerged as virtual dictator of the country. Montfort convened a parliament in 1265 which was attended not only by thebishops, barons and knights of the shire, but also by two representatives from each of the twenty-one boroughs or towns known to be friendly. Though themotive of Montford in calling two representatives from each of the friendly boroughs might not have been any belief in popular government, yet he was thefirst man to bring the towns in a form of co-operation with barons, clergy and gentry thereby laying the foundation of the House of Commons in days tocome. The meeting which he called "came nearer to being a genuine assembly than anything theretofore known."But the practice of calling towns' representatives started by Montfort was discontinued by Henry III when he ousted Montfort from dictatorship. During thenext thirty years the parliaments were called but without the representatives from the boroughs. It was in 1295 that Edward I resorted to the practiceof Montfort and summoned all elements of the nation - barons, clergy, knights and burgesses - to meet in an assembly and vote over the proposed taxes.This assembly consisted of 572 persons of whom 172 represented the shires and the7boroughs and 400 belonged to the group of bishops, clergymen, barons and other aristocrats. It was a parliament in the true sense as it consisted of a goodnumber of people's representatives. It has come to be known in English history as the model Parliament.The model parliament met as a single chamber but voted the taxes by three divisions. The king called the clergy in one group, the barons and knights inthe second group and the townsmen in the third group to hear his plea for money and give their consent in separate groups. Here we have a division of Parliamentinto three houses. Had this practice of voting taxes by three groups continued, England would have had a three-chamber system. But this three-chamber systemnever became a fixed practice and instead there grew an arrangement whereby the clergy and barons coalesced in another group. Thus, instead of three groupsthere came to exist two groups - one group giving birth to the House of Lords, the other to the House of Commons and there developed a bicameral systemin England. By the end of the fourteenth century the system of two chambers had become an accomplished fact.Thus, during the Plantagenet period, the powers of the Parliament increased. In 1341, the Parliament got king Edward I to agree to the following matters:(i) The king will not levy any tax without the approval of the Parliament,(ii) The Parliament may appoint a Commissioner to audit the accounts.(iii) The ministers will be appointed by the Parliament,(iv) The ministers will resign before the commencement of the session and reply to all the charges levelled against them.The Parliament also acquired the right to dethrone a king. In 1327, Edward II was made to leave the throne.It may be remembered that the Parliament of the fourteenth century was not primarily a law-making body. The laws were made by the king with the assent ofthe lords, spiritual and temporal. It was only after the lapse of further time that the commoners acquired any real share in the making of the laws. Inthe fourteenth century the commoners merely presented petitions and assented to the levy of taxes.Tudor PeriodThe period from 1485 to 1603 is referred to as the Tudor period. During this period the political institutions whose foundations had been laid by 1485 werefurther developed and adjusted "leading to altered balances of power and mechanism of control". Before tracing the onward history8we may enumerate the main features of the political institutions which had become firmly established till the accession of Henry VII on the throne:(i) The kingship had become secure in the foundation,(ii) The common law had reached an advanced stage of development.(iii) The high courts of justice were functioning actively,(iv) The system of local self-government through county and borough courts had become firmly established,(v) The parliament had become an established fact and consisted of two houses - the House of Lords and the House of Commons,(vi) The House of Lords was a vigorous and powerful body,(vii) The House of Commons had won recognition and gainedconsiderable powers in the field of legislation. The constitutional history of the period 1485-1603 is the history of consolidation of the governmentalsystem as it had stood in earlier generations. During this period the Tudor monarchs concentrated wide powers in their hands and thereby heightened theeffect of kingship. They even threatened the Commoners if the latter showed themselves obstinate. Henry VIII is said to have warned them on one occasionthat he would send some of them to gallows if they did not take certain measures. Queen Elizabeth is actually reported to have sent two members to prisonfor their obstinate persistence in advocating legislative proposals distasteful to her. Thus, Parliament, though it survived, did not place serious obstaclesin the way of royal despotism. Elections were held irregularly and sessions were held for a brief period. The Parliament that proved amenable was keptfor years whereas one that showed obstinacy was summarily dismissed. The laws which the Parliament could not be induced to enact were made by royal proclamation.It may not be, however, assumed that Parliament during the Tudor period was far from being unimportant. As Ogg says, "Not only in numbers, but also in spiritand morale, the House of Commons made steady progress in the Tudor period. Towards the end, there was a tendency to increased frequency of meetings andlonger sessions, and this gave members a better chance to develop common viewpoints and the habit of working together."6 Queen Elizabeth consulted Parliamentfrequently and accepted its judgment on many important occasions.Stuart PeriodAfter the death of Elizabeth the throne of England passed to her cousin, James VI of Scotland, who in 1603 was crowned king of England as9James I. He soon came into conflict with the Parliament as he believed in the divine right of kings and laid great stress upon his royal prerogatives. However,there was no open rupture. It fell to the fate of Charles I that the conflict between the king and Parliament developed into a civil war. He was made tosign the Petition of Rights in 1628. Charles I was put on trial, condemned and executed. After the execution of Charles I, governmental changes came inquick succession. The kingship and the House of Lords were abolished as equally useless and dangerous. The Parliament formally proclaimed England a "Commonwealth"or Republic in 1649. A written constitution known as the "Instrument of Government" was adopted and Cromwell was named Lord Protector. But the Protectortoo had trouble with the Parliament and his new constitution failed to take root. "Shrewder men, including Cromwell, had recognised from the first thatthe English people were monarchist at heart and it is not too much to say that from the start the restoration of kingship was inevitable. Even before thedeath of Cromwell in 1658, the trend decidedly was in that direction, and after the hand of the great Protector was removed from the helm, the change wasonly a question of time and means."7After the death of Cromwell monarchy was restored in England with the crowning of Charles II, the third Stuart. Charles II though tried to rule despotically,yet he was wise enough to perceive how far it was safe to go and what the consequences of transgressing the Parliament would be. He effected a sort ofcompromise between the royal authority and parliamentary supremacy and thereby managed never to risk his throne. His successor, James II, however, withina short time after his succession quarrelled with Parliament over the right to exercise his "dispensing power", i.e., the right to suspend the operationof certain laws. He did certain acts like reviving the arbitrary ecclesiastical Court of High Commission abolished by Parliament in 1641 and promulgatinga declaration of indulgence undertaking to give Catholics and Nonconformists far more freedom in religious matters than the laws of the land permittedwhich had led the parliamentary leaders to invite William, Prince of Orange, husband of Marry, James' eldest daughter, "to aid in upholding and protectingthe constitutional liberties of the realm." The result was the "Glorious Revolution of 1688." In England, there was none to support James who fled to Franceand thus the Stuart monarchy came to an end.The significant thing to be borne in mind about the constitutional development during the Stuart period is the establishment of10Parliamentary supremacy and an attempt to compromise it with strong monarchy. Writing about the significance of the Restoration G.B. Adams stated, "Theresult in 1660 was a compromise; not less truly a compromise because it was expressed in facts rather than in words. The question which had arisen at thebeginning of the reign of James I, whether it would be possible to make the strong monarchy of the sixteenth century and the strong parliamentary controlof the fifteenth work together in practice — what boundary line could be found between the king and the constitution - had been answered by the discoveryof a compromise. But it was a compromise of a peculiar type. As developed in the next hundred and fifty years, it meant that form and appearance remainedwith the king, the reality with the Parliament....The king is in theory sovereign, but his sovereignty can be declared and exercised only in the Parliament.The king gave up the power to determine by his individual will the policy of the State, but the surrender was disguised, by an appearance of power andfor a long time by the exercise of very substantial power and permanent possession of important rights and influence. It was more than a hundred yearsbefore all that the compromise implied was clearly recognized and the balance established at its present level. But it was really made in 1660."8Along with the development of Parliamentary supremacy during the Stuart period there also took place a change in the Privy Council, the successor of CuriaRegis. It grew in size, including as many as forty members. Its functions also no longer remained mere advisory. It regulated trade, supervised the administrationof justice, took control of finance and there was hardly any department outside its vigilant supervision. As due to its large size it could not effectivelyperform the function of advising the king, so Charles II adopted the plan of having a "CABAL"9 or inner circle of privy councillors to advise him on importantconfidential matters. This practice later on became the forerunner of the cabinet system.Hanover PeriodTo prevent any recurrence of friction between the king and Parliament the latter proceeded to make the terms of acceptance of the Hanover dynasty watertightby setting them down in black and white and causing the sovereigns to agree to them. It, at its second session, in February 1689, incorporated a declarationof rights in a statute and adopted it as law. This declaration has been called the Bill of Rights, which is one of the most important documents in Englishconstitutional history. This document set forth the basic principles of British Government as they11were understood by the Parliament at the time. Though it was not a constitution in the ordinary sense of the term, nevertheless, as Professor Adams pointedlyobserves, it was "most nearly of the nature of a written constitution of anything in English History."10 Without detailing the provisions of the Bill ofRights it may suffice to say that what the Bill of Rights did was "to sum up, very concretely the results of the Revolution and of the entire seventeenthcentury liberal movement, and to put them in legal form so unmistakable that they could never again be misunderstood or challenged".11 It "proclaimed thelegislative supremacy of Parliament, reiterated a denial of the Crown's right to levy any tax or import without parliamentary consent, insisted that Parliamentshould be regularly called, and set forth a list of the individual liberties which were not to be infringed."12 It forbade the repetition of past unlawfulpractices branding them as illegal and pernicious. In the matter of succession to the throne it imposed the limitation that no Catholic nor any personmarrying a Catholic should be allowed to inherit. In short, the document firmly established the supremacy of the Parliament and marked "the culminationof all the constitutional development that had gone before."13With the events of 1688-89 the outlines of the English constitution were practically complete. The cardinal principles of the political system as it istoday were put beyond danger of successful challenge. Britain had become a limited monarchy. Parliament had established her supremacy over the royal prerogative.The changes that have taken place since 1689 have not changed these general outlines of the British Government. However, some significant changes havetaken place which are: (i) the decline of the actual powers of the king; (ii) the growth of the Cabinet system; (iii) the democratization of the Houseof Commons; (iv) the rise of the House of Commons to a position of superiority over the House of Lords; and (v) the growth of the party-system. A briefdescription of all these five changes follows:(i) Decline of the actual powers of the king: Though the Bill of Rights had established the principle of parliamentary supremacy yet the king was not shornof all its powers. He was still near the centre of the picture. He selected his advisers and other principal officers of State. He controlled the ministers'policies with no obligation to consult Parliament at all in advance of a decision. The ministers did not reflect any party situation in Parliament northey needed to be the members of Parliament. For nearly two decades the kings continued to exercise the right of veto. In short. Parliament, though supremein principle, was subject to limitations in practice.12It was after the accession of George I in 1714, that there was a change in the situation. George I and George II had little or no interest in English affairs.They could not even speak the English language and knew nothing of English ideas and ways. Hence they let the powers, which their predecessors had enjoyed,slip out of their hands. By the middle of the eighteenth century the kings ceased to exercise their personal control over the Government. This power andcontrol passed on to the ministers and Parliament. George III made a brave attempt to revive the old royal influence but in vain. His successors had becomeaccustomed to the new role of the monarch and did not assert their supremacy. The reign of Victoria removed any doubt about the position of the sovereignin the governmental system of the country. A satisfactory way of running the government without the active participation of the king had been worked outand no king or queen could have induced or compelled the nation to give it up.14(ii) Growth of the Cabinet system: With the decline of the powers of the king there came a rise in the powers of his ministers particularly of those whocame to be known as the Cabinet. A rudimentary form of the Cabinet had existed under Charles II who had gathered a group of men, usually known as Cabal,to take advice from them in lieu from the Privy Council as a whole. However, Cabal has very little in common with the Cabinet as we know it today. Theking chose his ministers with no necessary consideration of the wishes of Parliament and these ministers used to be responsible not to Parliament but tothe king himself. In fact, the term "Cabinet" was first used as a term of reproach being regarded as an instrumentality of intrigue in the sovereign'sinterest (the name arising from the king's habit of receiving the members in a small private room, or Cabinet, in the palace).These were the events of the year 1688 and the succeeding years which made the development of the Cabinet system inevitable. William III in the beginningof his reign formed a ministry of both Whigs and Tories. But failing in the attempt to govern with a ministry composed of both Whigs and Tories he beganselecting his advisers from among the Whigs only. William resorted to this method only as a matter of convenience but gradually it became a regular practiceto select the ministers from among those members of the Privy Council who belonged to the dominant party in the House of Commons. Though there was no resolutionor statute of Parliament to force- the king to restrict his choice in this way, but that was the most logical thing to do. William and Anne themselvespresided over the meetings of the13Cabinet but George I gave up this practice as he did not know English and designated Walpole to preside over the Cabinet. This resulted in making the mostpowerful man in the Cabinet its chief who would preside over its meetings, control it and report from the Cabinet to the king and from the king to theCabinet. Being a member of the Parliament he also became a link between the Cabinet and Parliament and thus the office of the Prime Minister was evolved.When Walpole resigned in 1742 because of an adverse vote in the House of Commons, he established the principle of ministerial responsibility - the mostimportant usage of the British Constitution. Thus, by the end of the eighteenth century all the principles of the Cabinet system had become clearly establishedin England. In the nineteenth century the Cabinet began to wield wide authority and gradually became the steering wheel of the ship of the State.(iii) Democratization of the House of Commons: The democratization of the House of Commons was brought in the nineteenth century starting with the passageof the Reform Act, 1832. From its earliest days, the House of Commons had consisted of men who could hardly claim themselves to be the representativesof the people inhabiting the several counties and boroughs. County members were elected by the rural gentry, borough members by a mere handful of the boroughresidents. Many seats had fallen under the control of landlords and magnates; many were openly sold and bought. Under these conditions the House of Commonscould hardly be called democratic. It was hardly more representative of the nation than was the House of Lords. As Munro remarks, "The House of Commonsat the end of the eighteenth century was a representative body in form but a very unrepresentative body in fact."15It was in 1832 that the process of democratizing the House of Commons was set in. The Reform Act, 1832, liberalized the suffrage and in some degree adjustedrepresentation to population. It also enhanced its strength and prestige. The successive Reform Acts further extended the suffrage and regulated the conditionsunder which campaigns were to be carried on, elections held and other operations of popular government performed. These reforms culminated in the epochalRepresentation of the People Act, 1918 which enfranchised upwards of twelve million men and women and in the Act of 1928 which gave to five million morepeople the right to vote. Both these Acts brought the House of Commons "to a point where it can easily be numbered among the most democratic parliamentarybodies in the world."1614five The rise of the House of Commons to a position of superiority over the House of Lords: During the Hanover period important changes took place alsoin the relative importance of the two Houses of Parliament. Before the Glorious Revolution the House of Lords exercised unquestioned supremacy and wasthe dominating chamber for all purposes. But within thirty years of the Glorious Revolution the House of Lords began to lose its powers and by degreesthe House of Commons was able to win first legal equality with the House of Lords and then supremacy over it. There were several factors which contributedto this end. One of them was the fact that during the reign of the first two Georges the dominating figure in the government was Walpole who was all thewhile a member of the House of Commons and made it the centre of legislative and political leadership. The Septennial Act of 1716 also contributed to thestrength of the House of Commons as it extended the life of the House from three to seven years. It was, however, the Act of 1911 which sharply curtailedthe powers of the Lords and definitely settled the ultimate supremacy of the Commons.(v) Rise of the party system: The last notable development of this period is the rise of party system. Long before 1688 some groups called Lancastriansand Yorkists, Cavaliers and Round-heads had been there but these were political factions rather than political parties in the modern sense. Only the Whigsand Tories of the later Stuart period have better claim to be called political parties. Through the eighteenth and nineteenth centuries the party systemgradually ripened and the country accepted the party system with all its implications. The minority in Parliament were no longer known as the king's enemiesbut as "His Majesty's loyal opposition." The party system has perhaps brought about the most significant changes in the spirit of British politics duringthe past over two hundred years.Many other changes also have taken place since the end of the Stuart era. Scotland was drawn into a parliamentary union with England and Wales in 1707.Ireland was drawn into this union in 1800 but now all except Northern Ireland have gone out of it. England also developed a colonial empire during theperiod under reference which necessitated numerous additions to the English political structure without, however, swaying it from its accustomed foundations.References1. Freeman, E.A., Growth of the English Constitution, p., 19.2. Ogg, E.A., English Government and Politics, p.4.3. Ogg., op.cit.,p.l154. Munro, The Government of Europe, p.33.5. ibid, p. 366. Ogg, English Government and Politics, p. 31.7. Ogg, op. cit., 36.8. Adams, G.B., Constitutional History of England, p. 335.9. The word is formed by using the initial letters from the names of its first members - Clifford, Ashley, Buckingham, Aslington and Landerdale.10. Adams, G.B., Constitutional History of England, p. 358.11. Ogg, English Government and Politics, p. 40.12. Munro, The Government of Europe, p. 45.13. Ogg, op. cit., p. 40.14. Zink, H., Modern Foreign Governments, pp. 17-18.15. Munro, op. cit., p. 45.16. Ogg, op. cit., p. 53.162 NATURE OF THE ENGLISH CONSTITUTIONThe British Constitution is just like a river which glides slowly past one's feet curving in and out and almost lost to view in foliage.—SatiristDoes Britain have a Constitution?Thomas Paine and Alexis De Tocqueville are of the opinion that England has no Constitution. Thomas Paine declared that "where a Constitution cannot be producedin a visible form, there is none." In a spirited reply to Burke who defended the existence of the British Constitution, Paine asked, "Can Mr. Burke producethe English Constitution? If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a Constitution exists orever did exist." Similarly, De Tocqueville said that in "England the Constitution may go on changing continually or rather it does not exist."But both these writers are wrong in their opinions. They have misconceived the meaning of the term "Constitution" and also the real situation in England.The students of political science know that there can be no State without a Constitution - a body of fundamental rules and principles, determining thestructure of the State. They also know that such rules and principles may be written or unwritten. The Constitution of England is unwritten as most ofthe rules and principles controlling the distribution and regulating the exercise of governmental power have never been reduced to writing in a singledocument. As we have seen in the preceding chapter, most of the constitutional principles and rules in England have grown by experience. The English Constitutionis a product of many centuries of political growth. It is not the handiwork of any Constituent Assembly. Much of it has never been formally adopted atall. It can be amended at any time to any extent by a simple action of17Parliament. "If Constitution means institution and not the paper which describes them, then the British Constitution has not been enacted but has evolved.Looking to all this it may be said that England has a Constitution but of an unwritten type.It may not, however, be presumed that the English Constitution is entirely unwritten. There are certain charters, petitions and statutes in which some ofthe principles of the Constitution have been embodied in writing. Among these the important ones are the Habeas Corpus Act of 1679, the Act of Settlementof 1701, Fox's Libel Act of 1792, the Reform Acts of 1832,1867 and 1884, the Municipal Corporations Act of 1872, the Judicature Acts of 1873-76, the LocalGovernment Acts of 1888, 1929, the Parliament Act of 1911, the Representation of the People Act of 1918, the Equal Franchise Act of 1928, and the Statuteof Westminster of 1931. Thus it is clear that England has a constitutional structure though it is one which lacks symmetry. The Englishmen have shrunkfrom any effort to reduce their constitution to systematic codified form. They have "left the different parts of their constitution where the waves ofhistory have deposited them", without ever attempting "to bring them together to classify or complete them, or to make it a consistent or coherent whole".According to Munro "the British Constitution is a complex amalgam of institutions, principles and practices. It is a composite of charters and statutes,of judicial decisions, of common law, of precedence, usages and traditions. It is not one document but hundreds of them. It is not derived from one sourcebut from several.... It is a child of wisdom and chance."1Sources of the English ConstitutionFrom what has been written so far it is clear that the British Constitution has been derived not from a single source but from different sources. We candivide these sources into five groups.(1) Conventions: Firstly, there are some principles of the Constitution which are based on what Dicey has called, "the conventions of the Constitution."In fact, the workability of the English Constitution is based upon conventions without which it would become unworkable. These conventions are regardedas sacred as laws of the Constitution. Their importance lies in the fact that fundamental principles of the English Constitution like the sovereignty ofParliament and ministerial responsibility to the Parliament upon which the successful working of democracy depends are regulated by conventions. It hasbeen rightly opined that without the conventions, the British Constitution is like a skeleton without blood and flesh. The most important conventions inEngland are the following:18(i) The Queen or King must accept the advice of the Cabinet.(ii) No tax can be levied without the sanction of Parliament,(iii) The Parliament must meet at least once a year,(iv) The leader of the majority party in the House of Commons must be appointed as the Prime Minister.(v) The Cabinet is collectively responsible to Parliament,(vi) The Parliament shall consist of two chambers, (vii) Only the law-lords shall attend the meetings of the House of Lords for deciding judicial cases.A detailed discussion of these conventions we shall make elsewhere.(2) Charters: The second important source of the English Constitution is the great Charters and Agreements which define and regulate the powers of the Crownand the rights of citizens, etc. Such charters have become historic documents and, therefore, an important part of the British Constitution. Among thesedocuments the important ones are the following:(i) Magna Carta (1215): It defined the organisation and powers of the Great Council in England and prohibited the imposition of certain taxes without theconsent of the Great Council.(ii) Petition of Rights (1628): It laid down that no person in England can be compelled to pay any loan, gift or tax without the previous sanction of Parliament.(iii) Bill of Rights (1689): It made the Parliament the supreme law-making body and declared that it should be called regularly. It also provided a listof individual rights.(iv) Act of Settlement (1701): It fixed certain rules regulating the order of succession to the British throne.(v) Act of Union with Scotland (1707): It contains some provisions which have permanently united Scotland with England under one common Government.(3) Statutes: The third important source of the English Constitution is the Statutes (Laws) passed by the Parliament from time to time. It may be notedthat the British Parliament is fully empowered to change these statutes whenever it likes. The following are the important statutes of the British Parliament:(i) Reform Act of 1832: This Act extended manhood suffrage to urban middle classes of England,(ii) Parliament Act of 1911: It curtailed the powers of the House of Lords and permanently established the supremacy of the House19of Commons. It also reduced the life of the House of Commons from seven to five years,(iii) Representation of People's Acts of 1918 and 1928: These Acts established the principle of Universal Adult Suffrage by guaranteeing the right of voteto women,(iv) Statutes of Westminster Act, 1931: It recognised the Independence of the Dominions of Canada, South Africa, Australia and New Zealand,(v) Indian Independence Act, 1947: It handed over all political powers to India and Pakistan by the division of India,(vi) In April 1969 the voting age was lowered to 18 years. Besides, the Parliament has also enacted other laws, such as the Local Government Acts of 1888, 1924, 1933; the Abdication Act of 1936 and the Ministersof Crown Act, 1937.(4) Judicial Decisions: Judicial decisions are the judgments and interpretations of the British courts which define the scope and limitations of the differentcharters, statutes and Common Law of England. So great is the importance of judicial decisions that Dicey termed the British Constitution as a judge-madeConstitution. Good illustrations are the decisions in Bushell's case (1670), establishing the independence of juries, and that in Howell's case (1678),vindicating the immunity of judges.(5) Eminent Works: Some of the eminent works written by authorities on the subject also form a part and parcel of the Constitution. May's Parliament Practice,Dicey's Law and Constitution, Blackston's Commentaries on English Constitution are some of the notable examples.(6) Common Law: Common law may be defined as an "assemblage of all those rules and important principles, which are the product of slow process of long historicalgrowth, being based upon the customs and traditions of English Society, and later on recognised by the courts of the country." Such rules are apart altogetherfrom any action of Parliament and include many of the most important features of the governmental and legal systems and are fully accepted and enforcedas law. The prerogatives of the Crown, the right of trial by jury, the right of freedom of speech and of assembly, the right of redress for tortuous actsof governmental officers rest almost entirely on common law. Ogg points out common law in course of centuries "acquired binding and almost immutable character."20Thus, the English Constitution is composed of not one element, but different elements. However, its major part is unwritten. Hence a French writer comparesit "with a river whose surface glides slowly, past one's feet curving in and out and almost lost to view in foliage." Lord Bryce has summed up the sourcesand nature of the English Constitution in these words, "It is a mass of precedents carried in men's minds or recorded in writing, dicta of lawyers andstatesmen, customs, usages, understandings and beliefs, a number of statutes mixed up with customs and all covered with a parasitic growth of legal decisionsand political habits."Salient Features of the English ConstitutionFrom the nature and sources of the English Constitution we get the following important features:(1) Partly written and partly unwrittenThe first important feature of the British Constitution is its unwritten character. But by unwritten we do not mean that none of its principles is written.There are several written parts of the British Constitution, like the Magna Carta, Bill of Rights, Reforms Acts, Parliamentary Act of 1911, etc., but theunwritten part is heavier than the written one. So by unwritten we mean that (i) the written part of the British Constitution is lesser than the unwrittenone; (ii) the written part was not written at one time: (iii) whenever an Act was made the purpose was not to improve the whole of the Constitution. TheEnglish Constitution is largely based upon the customs and conventions of the British Society.(2) EvolutionaryThe British Constitution is a child of wisdom and chance. It has evolved itself gradually expressing itself in different charters, statutes, precedents,usages and traditions. It has grown like an organism from age to age. In the preceding chapter this evolutionary growth of the British Constitution hasbeen very well illustrated. It is the oldest among existing constitutions. Its general framework has undergone no revolutionary overhauling for at leastthe past three centuries with the exception of the half dozen years in which Oliver Cromwell served as the "Protector of the Commonwealth." England hasnot witnessed a revolution comparable with the French Revolution of 1789 or the Russian Revolution of 1917. The British Constitution has not undergonesudden transformations at definite times and whatever changes have come from time to time these have not deflected the main current of political development.In the words of Freeman, "At no time21has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new Constitution in obedienceto some dazzling theory".2 The political changes "have as a rule been so gradual, deference to traditions so habitual, and the disposition to cling toaccustomed names and forms even when the spirit has changed, so deep-seated, that the constitutional history of Britain displays a continuity hardly paralleledin any other land."3(3) Difference between theory and practiceOne of the unique features of the British Constitution is the gap that exists between constitutional theory and governmental practices. In England, "nothingis what it seems to be, or seems to be what it is." In theory the Government of England is vested in the Crown. All officers of government are the servantsof the Crown, summoned and dismissed at the royal discretion. No law is effective without the Crown's consent; no appointment is ever made save in thename of the Crown. No parliamentary election can be held save in obedience to the king's writ. The king is the Commander-in-Chief of all the British forces.The king alone can declare war and conclude peace and treaties. It is the Royal Navy, His Majesty's judges, His Majesty's Government, His Majesty's "loyalOpposition" and even His Majesty's subjects. In short the king is the source of all power.But all this is theory. As Ogg remarks, "The Government of the United Kingdom is in ultimate theory an absolute monarchy, in form a limited constitutionalmonarchy and in actual character democratic republic." In practice, the king has become merely a figurehead. He reigns but does not rule. Through gradualstages all political power has shifted from the king to the people's representatives in Parliament. The king has now long ceased to be a directing factorin government and he virtually performs no official acts on his own initiative. Practice has quite overturned theory and as Ogg remarks, "There have cometo be, in a sense, two constitutions rather than one - the Constitution that represents the system as it is supposed to be and the Constitution that representsit as it actually is."4 The truth is that the king, if he acts at all, acts only through ministers. England has become today not only a limited monarchybut to use the phrase of Mr. and Mrs. Webbs a "crowned republic."(4) Parliamentary sovereigntyThe sovereignty of Parliament forms another important feature of the British Constitution. There is no law which the British Parliament22cannot make or unmake. No court can question the legality of its Acts. There is no legal difference between the constituent authority and law-making authorityin England as it exists in the United States or India. The British Parliament is both the law making and constituent authority. It can even change thesuccession to the throne by a simple Act and even prohibit the king to marry a woman of his choice. It can abolish the monarchy, deprive all peers of seatsin the House of Lords, or abolish that chamber altogether. It can, in fact, do any or all of a score of other things that would amaze any student of theBritish Constitution. It can, observes Anson, "make laws protecting wild birds or shell-fish, and with the same procedure could break the connections ofChurch and State, or give political power to two millions of citizens and redistribute it among new constituencies."5 The British Parliament has, of course,done all these things and even more. So far as legality is concerned, the British Parliament is supreme and sovereign. As Ogg remarks, "The truth is thatwhile Parliament operates under plenty of practical restraints - moral inhibitions, public opinions, international law, and international agreements, itnevertheless is legally unfettered, with any and of all its actions, immune from annulment except by its overaction."6(5) A unitary constitutionThe British Constitution is a unitary and not a federal one. A federal Constitution is one wherein the governmental powers are distributed among certainagencies, federal and divisional, neither of which has a power to alter the constitutional provisions. The important thing is that the distribution isdone by authority superior to both federal and divisional governments. The United States has a federal Constitution. But in England the government is unitary.All the power is concentrated in a single government centred at London. The local areas derive their powers from the London Government. It has endowedthem with such powers as it chooses to bestow and can change their powers at any time or even abolish them altogether. Thus, the British Constitution isunitary both in form and spirit.(6) A flexible constitutionAgain the British Constitution is flexible in nature. As already pointed out there is no difference between the procedure for a constitutional law and thatof an ordinary law in England. The British Parliament is empowered to pass and amend the ordinary law as well as the constitutional law through the sameordinary procedure. There is no special procedure for passing a constitutional law in England. This23flexibility of the Constitution permits it to be adopted more readily to the new conditions than is possible in any other country.It may, however, be noted that the flexibility of a Constitution does not entirely depend primarily on the breadth of its provisions. Though legally theConstitution of England is the most flexible in the world, yet actually "it is considerably less fluid than might be inferred from what the writers say."If the Constitution is couched in broad terms so as to permit changes in governmental practice without any formal amendments, there will be little needof amending the Constitution. This is true of the Constitution of the United States. Similar is the case with England. The English people are conservativehaving a Constitution broad enough to permit changes in governmental practice. Naturally, therefore, few changes in it have been made over considerableperiod of time.(7) Rule of 'lawAnother important feature of the British Constitution is the rule of law. It has never been expressly enacted as a statute, but is implicit in the variousActs of Parliament, judicial decisions and in the common law. As defined by an English jurist, the rule of law means, "the supremacy or dominance of law,as distinguished from mere arbitrariness, or from some alternative mode, which is not law, of determining or disposing of the rights of individuals."7In England, it may be noted, there is no Act which lays down the fundamental rights of the people. But it does not mean that the Englishmen enjoy noughts.On the contrary, their rights are as secure as in the United States or India wherein constitutions have defined specifically the rights of citizens. Thissecurity of the rights of British people is secured to them through rule of law. The citizens, the courts, the administrative officials, the king, allare subject to it. Under the rule of law, "obligations may not be imposed by the State, nor property interfered with, nor personal liberty curtailed, exceptin a legal manner and on legal authority."8 Of course, the Parliament has the legal power to limit, suspend or even withdraw any specific right, but traditionand public opinion will not tolerate any infringement not explicitly necessitated by national emergency. Moreover, the fundamental rights even in the countrieshaving express constitutional provisions incorporating them are subject to limitations in the interests of national well being. The fact is, as Ogg observes,"that although at first glance private rights seem to enjoy no such sheltered position in Britain as elsewhere, they are, both in law and in practice,not a whit less secure on that account. After all, it is not in such matters paper24decorations that ensure results, but rather the sanction of tradition, principle and public opinion."9(8) A parliamentary form of governmentEngland has a parliamentary form of government as distinct from the presidential type of government. The king is the nominal head of the State. The realfunctionaries are the ministers who belong to the majority party in the House of Commons and remain in office so long as they enjoy its confidence. Asthe ministers are also the members of the Parliament, so there is co-ordination between the executive and legislative wings of the government. In the wordsof Bagehot, the Cabinet in England is a "hyphen that joins, the buckle that binds the executive and legislative departments together." In England thereis little risk of conflict between the executive and legislature and the work of the government, therefore, goes on smoothly. It is on account of the parliamentarysystem prevailing in England that the British Constitution has been called the mother of parliaments.(9) Separation of powers combined with concentration of responsibilityMontesquieu found the British governmental structure based on the principle of separation of powers. Apparently, it is so. The Crown is the executive; Parliamentis the legislature; the courts form the judiciary. The executive in its purely executive and administrative capacity is not subject to so much controlby the legislature as it is in the United States. In England the judiciary also takes no part in determining the law as does the American judiciary throughthe process of judicial review. Nevertheless, the Cabinet in England has assumed a dominating role not only in administration, but even in legislationand to some extent in judiciary as well. In the United States the role of the Cabinet is not so dominating as it is in England. The British Cabinet hasbecome the steering wheel of the ship of State reducing Parliament to a tool in its hands. As Ogg remarks, "At London, concentration of responsibility,implicit in the cabinet system and held back by no constitutional barriers, cuts through every obstacle and brings the Prime Minister and his colleaguesinto the position of an all powerful government, leaving it to Parliament and the courts merely to regulate and check its action."10(10) A blend of monarchy, aristocracy and democracyThe British Constitution has harmoniously blended within itself the three somewhat incongruous features of monarchy, aristocracy and democracy. The Britishking represents the monarchy which rests on the25hereditary principle. The House of Lords is aristocratic representing the Lords and nobles of the land. The House of Commons is democratic representingthe people of the land. It is true that neither the king nor the House of Lords plays an effective role in the political set-up of the country, yet theircontinuance appears hardly reconcilable with democracy. And yet the Englishmen had never been in a mood to abolish these historic institutions.(11) A Bicameral LegislatureThe parliament is bicameral. The House of Commons, the Lower House is a directly elected chamber composed of 651 members11 and House of Lords is a hereditarychamber comprised of over 1100 members. The Lower House is much more powerful than the House of Lords.Conventions of the ConstitutionEarlier we had the occasion to remark that one of the important features of the English Constitution is what has been called "conventions of the Constitution."These conventions are so firmly rooted in the working of the English Government that without them the Constitution would become unworkable. In the wordsof Ogg, "ii goes without saying that anyone who desires to know the British Constitution as it is - even one who comes at it primarily as a student oflaw, as did Dicey - must study the conventions quite as carefully as the positive rules of law."12Meaning of conventionsThe conventions are those rules, understandings, precedents, customs and traditions which have been definitely recognised by the English society due totheir practical utility and regarded as sacred laws of the Constitution. Prof. Dicey defines them as "the rules for determining the mode in which the discretionarypowers of the Crown ought to be exercised." The conventions are the unwritten rules of conduct or political morality. They have not been formed in oneday or at a particular moment of history. They are the result of long historical growth and are rooted in the practices and habits of the English peoplewho have followed them for a long time and recognised them as a part of English law. J.S. Mill has called them as the "unwritten maxims of the Constitution."According to Ogg and Zink, "Conventions consist of understandings, habits or practices which though only rules of political morality regulate a large portionof actual day to day relations and activities of even the most important of the public authorities."Sometimes, a distinction is made between conventions of the Constitution and laws of the Constitution. The laws of the Constitution26are the historic documents and Parliament statutes such as the Magna Carta, the Petition of Rights, the Bill of Rights, the Habeas Corpus Act, the Act ofSettlement, the Septennial Act and the Reform Acts. The conventions of the Constitution, on the other hand, are the principles and rules which have neverbeen enacted by Parliament but have grown up entirely on the basis of usage and practice. These principles and rules do not appear in the statute booksbecause, strictly speaking, they are not laws.But this distinction between conventions and laws is sometimes difficult to draw. As Jennings writes, "What is law and what is convention, are primarilytechnical questions. The answers are known only to those whose business is to know them. For the mass of people it does not matter whether a rule is recognisedby the judicial authority or not." The conventions are the fundamental rules of the British Constitution and it is difficult to see how these can be violatedeven though they are not the part of Statute Law. Moreover, many of the fundamental rules of the British Constitution have been now recognised by Actsof Parliament Jennings has rightly said that, "the Conventions are like most fundamental rules of any Constitution in that they rest essentially upon generalacquiescence. A written Constitution is law not because somebody has made it, but it has been accepted." Freeman also opines, "We now have a whole systemof political morality, a whole code of precepts for the guidance of public men which will not be found in any page of either of statute or the common lawbut which are in practice held hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right..." Once the existence ofconventions is recognised by law or by judiciary, they do not remain very different from laws.Kinds of conventionsThe important conventions which have grown up in England may be classified in three categories:(A) Conventions relating to Cabinet: The first group of conventions relate to the Cabinet system. The constitutional history of England points out to thedecline of the powers of the king and the consequent growth of the powers of the Cabinet. In fact, the whole of the Cabinet system is the product of conventions.Among the important conventions relating to the Cabinet system are the following:(i) The ministers must be the members of Parliament.(ii) The Prime Minister must be the leader of the majority party in the House of Commons and the other Ministers must be27appointed on his advice. The Prime Minister will also distribute the portfolios among the Ministers,(iii) The Prime Minister alone can request the Queen to dissolve the House of Commons,(iv) The Ministry must either resign, if it loses the confidence of the House of Commons or it can make an appeal to the electorate,(v) The Ministers are collectively responsible to the House of Commons.(vi) The Queen will not veto the bills passed by the Parliament(vii) The Queen will always act on the advice of the Cabinet.(B) Conventions relating to Parliament: The second group contains the conventions relating to the Parliament, with special reference to the relation betweenthe two Houses. These are the following:(i) The Parliament consists of two Houses - the House of Commons and the House of Lords.(ii) The money-bills will be initiated in the House of Commons,(iii) The Parliament must be convened at least once a year,(iv) Every bill must have three readings before finally voted upon,(v) A speech from the Government benches in the Parliament is to be followed by a speech from the Opposition,(vi) The Speaker must resign from the membership of the party to which he belonged on his election as Speaker and should become a non-party man.(vii) The retiring Speaker must be returned unopposed to the House and be elected as Speaker as many times as he pleases,(viii) No peer other than a Law Lord shall sit when the House of Lords is acting as a Court of Appeal,(ix) The number of the representatives of the different political parties in the Committees of the House of Commons should be proportionate to their numberin the House,(x) The Government will not initiate legislation of a controversial nature without specific mandate from the electorate. This is known as Mandate convention,(xi) If a member of the majority party is to be absent on any working day of Parliament when division of voting is to take place, he informs the Whip whofinds out from the Opposition whether or not any member from his party is to be absent. This is termed as Pairing convention.(C) Conventions relating to Dominions: The third group consists of the conventions which govern the relations of Britain with other Dominions. These arethe following:28(i) Every Dominion, more or less, is to be regarded as an independent country both in internal as well as external affairs, though a nominal allegianceto the Queen is to be paid,(ii) Any alteration in law touching the succession to the throne must require the assent of Parliaments of the Dominions.(iii) The rules for making treaties by any Dominions are still matters of conventions as embodied in the reports of the Imperial Conference of 1923, 1926and 1930.The Statute of Westminster, 1931 has embodied in a legal form most of the conventions relating to Dominions.Sanction behind conventionsAn important question that arises in connection with conventions of the Constitution is "what is it that gives them force?" If the Prime Minister does notresign on an adverse vote in the Parliament or if the Queen vetoes a bill passed by the Parliament both these acts would be unconstitutional, but how toenforce them. No court can give them effect as they are not a part of the statute. What is the sanction then behind them?Prof. Dicey is of the view that conventions are observed because their non-observance will sooner or later lead the offender into conflict with the courtsand the laws of the land entail grave consequences. In other words, conventions are observed since their violation will ultimately lead to the breach oflaw. Dicey illustrates his point by some definite cases. One of the conventions is that the Parliament must meet at least once a year. According to Diceythis convention is obeyed because if the king does not summon the Parliament at least once a year and lets a full year lapse without its meeting, it wouldbecome difficult for the Government to carry on the administration without raising taxes unlawfully. The Army Act would expire and the Government wouldlose all disciplinary authority over the troops. Certain taxes would lapse and there would be no authority to spend a penny on the army, the navy or thecivil service. Thus the king must either call the Parliament or collect taxes illegally and thereby be brought into conflict with the laws and court ofthe country. Similarly, if the Ministry does not resign on an adverse vote of the Commons, the Commons will not grant it money and the entire machineryof government will come to a stop. Dicey, therefore, remarks, "The force which in the last resort compels obedience to constitutional normality is nothingelse than the power of the law itself. The breach of a purely conventional rule, of a maxim utterly unknown and indeed opposed to the theory of law, ofthe land....29The conventions of the Constitution are not laws, but derive their sanction from the fact that whoever breaks them must finally break the law and incurthe penalties of a law breaker."13Lowell's viewBut Dicey's theory does not explain the whole case. What Dicey says may be true of the important conventions, but many a minor convention can be violatedwithout bringing the violator into conflict with the law of the land or bringing the wheels of government to a stop, for example, no breach of law wouldfollow if the Speaker does not resign the membership of his party after his election to the chair. Lowell, therefore, is of the opinion that conventionsare supported by something more than the realisation that their violation will lead to the violation of some law. "In the main," says Lowell, "the conventionsare observed because they are code of honour. They are, as it were, the rules of the game, and the single class in the community which has hitherto hadthe conduct of English public life almost entirely in its own hands is the very class that is peculiarly sensitive to obligation of this kind. Moreover,the very fact that one class rules, by the sufferance of the whole nation, as trustees for the public, makes that class exceedingly careful not to violatethe understandings on which the trust is held."14Dr. Jennings' viewAn additional sanction comes from the force of public opinion. Dr. Jennings has remarked real obedience to law or conventions, which are of equal value,is based upon general public opinion and not upon force. Ogg also holds the same view when he says that for the really ultimate sanction we must look mainlyto the force of public opinin.15 Government is a co-operative function arid law alone cannot provide for common action. The nation expects and has a rightto expect that the administrators and legislators will not violate the usages of the country. The outburst of feeling that would follow if these are violatedis a sufficient guarantee that they will be observed. In England plenty of trouble would arise from failure to observe the established constitutional usagesof the land.Utility of conventionsThe main reason behind the continuity of conventions is their practical utility in the politics of England. Dr. Finer has remarked, "No written Constitutionany more than the ordinary law, can express the fulness of life's meanings and demands, because the human imagination, even at its most talented, fallsfar short of reality."16 The conventions have30helped the English unitary government operate democratically. They are the established intelligent practices and having stood the test of changing circumstanceshave democratised the executive by making Parliament the centre of gravity. They have enabled the treasury and opposition to work together for the nationalwelfare, and democratically revolutionised the judicial system of the country by making only nine Law Lords to constitute the Highest Court of Appeal fordischarging judicial purposes. So deep rooted have these conventions become in the habits of English people and so firmly is the mechanism of the Governmenterected on their foundation that to think of their violation is beyond comprehension. Dr. Jennings rightly points out that the Conventions: "do not existfor their own sake; they exist because there are good reasons for them". The importance of conventions can be discerned from the fact that even the mostpopular king Edward VIII could not dare to act against the wishes and advice of his ministers, in marrying the lady of his choice which he could legallydo. It was just to honour the conventions that he preferred to abdicate. In short, the conventions "provide the flesh which clothes the dry bones of law"and have enabled a rigid framework of government to keep pace with the changing political ideas and the needs of the people. "In converting a monarchicalinto a democratic Constitution and in passing from the seventeenth to the twentieth century, the British eschewed writing the new articles: they preferredto rely on the growth and inheritance of customs - that is conventions."17 A.B. Keith also correctly remarks, "They cover the most important of the constitutionalrelations and utterly transform the practical meaning of legal enactments."Rule of LawIn our discussion of the salient features of the British Constitution we had the occasion to remark that the guarantee of the fundamental rights of Britishpeople is secured to them through what has been called "rule of law". According to Dicey, rule of law means three things:Firstly, it means that "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinarycourts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide,arbitrary or discretionary powers of constraint."18 This principle implies that no one in England can be punished arbitrarily. All persons accused of anoffence should be tried in an ordinary court of law in the ordinary legal manner and no one is to be arbitrarily deprived of his life, liberty and property.Cases are to be31tried in an open court and the accused has the right to be represented and defended by a counsel of his own choice. Judgment is to be delivered in an opencourt and the accused has a right to appeal to higher courts. These rules of judicial procedure reduce the possibility of executive arbitrariness and guaranteethe British people security of their life, liberty and property.Secondly, rule of law means equality before law. Dicey observes. "Not only with us is no man above the law, but (what is a different thing) here every man,whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals".19 This is avery important principle of the rule of law. It implies that in England every citizen, rich or poor, high or low, is subject to the same law and the samecourts of law. If any public official does any wrong to an individual or exceeds the power vested in him by law, he can be sued in an ordinary court andtried in the ordinary manner. In other words, the English Law does not make any distinction between acts of Government and those of ordinary citizens.In this respect the practice in Britain differs from that in France where Administrative Law is in vogue under which the public officers are not amenableto the ordinary law for their public acts. There is no separate law for the public officials. They are subject to the same law which applies to ordinarycitizens. The people who form the government should exercise their powers in accordance with the laws of the Parliament. Dicey remarks, "With us everyofficial, from the Prime Minister to a constable or collector of taxes, is under the same responsibility for every act done without legal justificationas any other citizen."20Thirdly and finally, rule of law means that with English, "the general principles of the Constitution are ... the result of judicial decisions determiningthe rights of private persons in particular cases brought before the courts."21 This principle has emphasized the contribution of the judiciary in theprotection of the liberties and rights of British people. In England rights of the citizens do not flow from the Constitution, but from judicial decisions.Prof. Dicey was a liberal of the nineteenth century and it was natural for him to pay his tributes to these liberal minded judges who contributed greatlyto the protection of the liberties of English people in the past.The rule of law is the product of centuries of struggle of the British people for the recognition of their fundamental rights. In Britain what is supremeis law. Every act of the Government must be authorised by law,32either by statute law passed by Parliament or by common law which has been recognised for many hundreds of years. In England, unlike in the United Statesof America or France, there is no written law or Constitution which incorporates the Rights of Man. These rights are secured to them by the rule of law.Parliamentary supremacy is subject to rule of law. In England nobility does not enjoy special privileges and cannot disregard the ordinary law. In short,rule of law affords the ordinary citizen adequate guarantees against undue interferences with his rights by any other person or any government servant.Laski defines Rule of Law which has been the safeguard of the freedom of Englishmen in these words "Statutes are not to mean merely what the ministry ofthe day may be tempted to make them. The intention of parliament is to be discovered by a body of independent persons free from any direct interest inthe result and trained by long years of the practical standards of Judgment by which that intention may be tested. This is the famous rule of law...."Exceptions to Rule of LawSince Dicey wrote several developments have taken place in England in the light of which the Rule of Law needs restatement. In practice some significantdepartures from the meanings given by Dicey to Rule of Law have been made. In the first place, the growth of delegated legislation has touched upon theprinciple of Rule of Law. With the growth of the functions of modern State wide discretionary authority has been left in the hands of administrative authoritiesto meet the exigencies of time and peculiarities of a situation. The law, therefore, allows administrative authorities to use their discretionary powerin their own way which cannot be questioned in a court of law. However, it does not mean that discretion may be used arbitrarily or maliciously. Accordingto Lord Halisbury discretion should be exercised according to rules of reason and justice, not according to private opinion, according to law and not humour.Discretion should be used judiciously.Secondly, there are certain Acts which have conferred some privileges and immunities over public authorities and which are not available to private individuals.Thus the Public Authorities Protection Act, 1893 provides that all proceedings against public officials for the excess, neglect or default of public authoritymust be started within six months of the Act. If it is not done so, the action becomes time barred. The citizen has to pay heavy penalty by way of costsif his suit against the public authority fails. Moreover, judges are not liable for anything done or said in the exercise of their judicial functions.Moreover, daring the last forty years the government departments have been made the final courts of judgments in regard to many matters falling within theirjurisdiction. For example, the Home Secretary may refuse in his discretion the certificates of naturalisation to aliens. He can deport an alien and hisactions cannot be challenged in any court of law. The Crown can refuse passport to any person who wishes to go abroad and the exercise of this power cannotbe challenged in a court of law. Similarly, the Minister of Health, the Board of Education, the Railway Rates Tribunal, the Board of Trade, the Ministerof Transport and other authorities finally decide questions affecting the person and property of the citizens. Their decisions cannot be questioned inany court of law.33Again, it hardly needs mention that the diplomatic agents accredited to England are immune from the process of the local courts keeping in conformity withthe practice of civilised States. This immunity is also available to the foreign rulers, recognised international agencies and their officers. The Queenis not amenable to any court of law. The convention is that the Queen can do no wrong. She cannot be held guilty for the wrong acts of her ministers orservants. She is immune from all criminal prosecutions and civil trials.Finally Dicey's contention that rights emanate from judicial decisions only is also not valid. He probably referred to only political rights. Many civilrights like the rights to pension, insurance and free education have been derived from statutes. Some important rights like the right to personal freedom,freedom of speech and to bring an action for wrongful arrest, assault or false imprisonment are the outcome of common law. The famous "Habeas Corpus Writ"is an example.It is thus evident that there are several exceptions to the rule of law. Dicey himself wrote in 1915 that during the last thirty years there has been deteriorationin respect of the rule of law. The rule of law has been exposed to a new peril and that the old veneration for rule of law has waned. He was led to makethis remark on account of the growth of administrative law and delegated legislation. Dr. Finer has also pointed out that the rule of law has sufferedan eclipse on account of several unregulated growths.Therefore, in the light of what has been said above, Dicey's rule of law needs restatement. According to a recent statement, the rule of law, "involvesthe absence of arbitrary power, effective control of and proper publicity for delegated legislation, particularly when it imposes penalties; that whendiscretionary power is granted in the manner in which it is to be exercised should as far as practicable be defined; that34every man should be responsible to law whether he be a private citizen or public officer, that private rights should be determined by impartial and independenttribunals; and that fundamental private rights are safeguarded by the ordinary law of the land."22 Thus it is unrealistic under modern conditions to givethe rule of law the strict interpretation given to it in the nineteenth century. However, the fact remains that the rule of law is yet an important principleof the English Constitution. England is still governed by law and not according to the whims and caprices of any individual.References1. Munro, W.B., The Governments of Europe, p. 23.2. Freeman, Growth of the English Constitution, p. 19.3. Ogg, English Government and Politics, p. 68. - 4. ibid., p. 69.5. Anson, W.R., Law and Custom of the Constitution, p. 380.6. Ogg and Zink, Modern Foreign Governments, p. 41.7. He wart, Lord, The New Despotism, p. 19.8. Ogg., op. cit., p. 809. ibid., p. 81.10. Ogg, op. cit., p. 76.11. As per April 1992 Elections.12. ibid, p. 65.13. Dicey, Law of the Constitution, p. 447.14. Lowell, Government of England, pp. 12-13.15. Ogg and Zink, Modern Foreign Governments, p. 31.16. Finer, H., Government of Great European Powers, p. 49.17. ibid, p. 50.18. Dicey, A.V., Law of Constitution, p. 179. H.19. ibid.20. ibid.21. ibid.22. Wade and Philips, Constitutional Law, p.58.353 THE CROWN"The King is Dead; Long Live the King."In the last chapter we have reviewed some of the salient features of the British Constitution - the rule of law, the constitutional conventions, the widegap between theory and fact, its antiquity and vigour. Now we proceed to study the system of government as it is carried on from day to day. In this studywe shall first take up the Crown and the king.Distinction between the King and the CrownAt the very outset, we are confronted with the distinction between the king and the Crown which Gladstone once pronounced the most vital fact in Britishconstitutional practice. "Who rules England?" asked a Stuart satirist. "The king rules England of course." "But who rules the king?" "The duke." "Who rulesthe duke?" "The devil."1 Nowadays it is the Crown, not the king, that governs England as the monarch's official acts are ruled by the advice of the PrimeMinister who is controlled in his turn by the House of Commons. In fact, the whole development of the British Constitution has been marked by a steadytransfer of power from the king to the Crown. In early days, all the powers rested in the man who wore the Crown, but in the course of history these powershave been steadily transferred to the Crown. Two generations ago, Walter Bagehot wrote that Queen Victoria could disband the army, dismiss the navy, makea peace by cession of Cornwall, begin a war for the conquest of Brittany, make every subject a peer, pardon all offenders and do other things too fearfulto contemplate. Legally, the Queen can still enjoy all these powers. But today, all this is in theory. In actuality, these and other powers are performednot by the king but by the Crown. The king, who performs these powers is not the personal king, but rather the institutional king.Therefore, the distinction between the king and the Crown is the distinction between the monarch as a person and monarchy as an36institution The king is the physical embodiment of the "Crown". King is a Derson Crown is an institution. This distinction is well illustrated by the maxim,"The king is dead, long live the king." It merely implies that the person who occupied the throne is dead but the office of kingship as an institutionsurvives. The Crown is eternal, the king is mortal. The death of the king makes no difference in the powers and duties of the Crown. According to Blackstone,"Henry, Edward, George may die but king survives them all." By king, Blackstone means kingly institution, i.e., the Crown. The Crown is an institutionand so it never dies. The powers and functions of the Crown are not suspended by the death of the king, even for a single moment. Munro called the Crown,"an artificial and juristic person" who is neither born nor ever dies.The Crown, as Mr. Sindney Low says, is "a convenient working hypothesis." Sir Maurice Amos says, "The Crown is a bundle of sovereign powers, prerogativesand rights - a legal idea." Historically, the rights and powers of the Crown are the rights and powers of the king. In theory this is still the case. Butin fact, these powers and rights are exercised not by the king personally but by ministers in the king's name who derive their authority from Parliamentand are responsible to it. According to Dr. Finer, "When we talk of the actions of the Crown in politics we mean that the People, Parliament and the Cabinethave supplied the motive power through the formal arrangements established by centuries of constitutional development. The Crown is an ornamental cap overall these effective centres of political energy." In the words of Ogg, the Crown is a "subtle combination of sovereign ministers (especially Cabinet members),and to a degree Parliament"1 It is a legal fiction. It is the institution to which all powers and privileges once possessed by the king have been transferred.The king is its physical embodiment, whereas the Cabinet is its "most concrete visible" embodiment.Thus the distinction between the Crown and the king centres round the following points:(i) The king is a person, whereas the Crown is an institution. When the king becomes institutionalized, it is called the Crown.(ii) The king is mortal, but the Crown is immortal. The death of the king does not mean the death of the Crown,(iii) The king is only a part of the Crown; besides the king, the ministers and the Parliament also form parts of the Crown,37(iv) The king is only a person using the powers of the Crown.All the powers of the State reside in the Crown. The Crown is the assemblage of sovereign power.We agree with Dr. Munro who said, "The Crown is an artificial or juristic person. It is an institution and it never dies. The powers, functions and prerogativesof the Crown are not suspended by the death of a king even for a single moment."Succession to the ThroneIn Anglo-Saxon days the kingship was elective. The "Witan" normally chose a person of superior repute and capacity from among the members of a single royalfamily, but there was no definite rule or order of inheritance during those days. Gradually, however, kingship became hereditary and by the thirteenthcentury, succession clung to the right to determine succession when the line was broken or when there was uncertainty or dispute. Today succession to thethrone is regulated by the Act of Settlement, 1701, which provided that in default of heirs to William III and of his expected successor, Anne, the Crownshall descend in perpetuity through the heirs of the Princess Sophia of Hanover, who was a grand-daughter of James I. The principle of heredity is determinedby the rule of primogeniture, i.e., the elder in line being preferred to the younger and the male being preferred to a female. The heir must be protestant.The succession to the throne is followed by a coronation but this ceremony has no legal significance. If the heir to the throne is a minor (under eighteenyears of age) a regency is established to serve until the age of eighteen is attained. Regency also serves during any period when the monarch is preventedby any "infirmity of mind or body" which renders him incapable of performing the royal functions. It may also be added that the king may abdicate his throne,as Edward VIII did in 1936.Powers of the Crown3The powers of the Crown are derived from two sources, i.e., prerogative and statute. Originally, the powers; ?T the Crown were deemed to be "prerogatives"which inhered in the person of the king and were not conferred upon him by action of Parliament. Later, Parliament began stripping away the powers basedupon prerogatives, while at the same time also bestowing new ones. Such powers which survived on the earlier basis constitute the prerogatives of the Crown.Thus, according to Dicey, the prerogatives are the residue of the discretionary or autocratic powers which have been left legally with the Crown. Theydenote the powers possessed without having been granted or conferred -powers acquired by prescription, confirmed by usage and accepted or38tolerated even after Parliament gained authority to abolish or alter them at pleasure. These powers based on prerogatives form a very large part of thetotal powers of the Crown. Other powers of the Crown are derived from the Acts of Parliament. The Parliament has not only cut down the powers of the Crownat certain points but has also added new powers. Thus when Parliament authorizes a new tax or imposes fresh duties of administration upon the Crown, itimperceptibly enlarges the volume of the powers of the Crown. However, the question of whether a given power is derived from prerogative or from statuteis of little practical importance. What is important to note is that the powers of the Crown are continually undergoing change - sometimes being curtailedand sometimes being carried to new heights. F.W. Maitland says, "We must not confound the truth that the King's personal will has to come to count forless and less with the falsehood ... that his legal powers have been diminished. On the contrary, of late years they have enormously increased."4The powers of the Crown may be considered under these heads:Executive powersThe Crown is the executive. All executive authority is vested in it. It appoints all the high executive and administrative officers, judges, bishops, andthe officers of the army, navy and air force; directs the work of administration; looks to the enforcement of all national laws; holds supreme commandover the armed establishments; conducts the country's foreign relations; deals with the colonies and dominions and wields the power of pardon and reprieve.It can even declare war or peace, conclude a treaty without consulting Parliament. Thus the Crown is the supreme executive authority and holds wide executivepowers.However, all these powers of the Crown are exercised by the ministers, or the Cabinet. The Cabinet and individual ministers are allowed a relatively freehand in the administration of the country. It is they who see that the laws are carried into effect. They decide who shall be appointed to office. Theydirect British foreign policy and conclude treaties. They even decide the issue of war. They spend the money that Parliament appropriates. In short, theministers, and not the king, are the real wielders of authority. Even the higher officers of the royal household are appointed with the approval of theMinistry. This shows the completeness of the control which the Ministry exercises over the administration. Whenever the Parliament bestows powers on theCrown, it, in fact, delegates them to the Cabinet. To the king as an individual the Parliament never grants any authority. The exercise of39the prerogative of mercy is primarily a matter for the Home Secretary, and the royal share is merely formal. In the matter of bestowing public honours onhis subjects the king acts on the initiative and with the prior consent of his ministers. The Prime Minister and not the king is responsible to Parliamentfor inclusions in and exclusions from the list of honours. Thus, it is clear that all the executive powers of the Crown are now put into action by thePrime Minister and his colleagues. The king is only titular.Legislative powersThe Crown is not only an executive but also an integral part of the national legislature. Technically, the law-making function is vested in the King-in-Parliament,which means the king acting in conjunction with the House of Lords and the House of Commons. But as in other things, so in law-making the king has yieldedto the Crown.Theoretically, the king summons and prorogues the sessions of the British Parliament, dissolves the House of Commons, assents to the bills passed by theParliament and issues Orders-in-Council. Theoretically no bill passed by the Parliament can become an Act unless and until assented to by the king butonce a bill is passed by the Parliament the king does not exercise the right to veto. But all this he does on the advice of the Cabinet. Rather it is theCabinet which exercises all these powers. The king has long lost the power of issuing decrees without the concurrence of Parliament. The Orders-in-Councilwhich are still issued, are never promulgated save at the behest of ministers who owe their authority to the will of Parliament. The assent of the kingto the Acts passed by Parliament is never denied and is always given as a matter of course. This assent has never been withheld in the last more than twohundred years,5 and the whole ceremony by which it is extended is a picturesque formality. The king does not even read the bills. He has no responsibilitybecause the bills would not have been passed had the king's ministers opposed them. So, when the ministers have the responsibility, why should the kingreject them? The king's veto has fallen into disuse. Even if the Parliament were to send the king his own death warrant, he would be under the necessityof giving his assent to it. In 1936, Edward VIII gave the royal assent to the Act of Parliament providing for his own abdication.Judicial powersIt is said, "The king is the fountain of justice", a survival from the old far off and forgotten days. In fact, the Crown does so as the king. The kingappoints the judges, including the Justices of Peace in the counties and40boroughs in name only. They are the nominees of the Cabinet - which is the part and parcel of the Crown. All issues which come before the Judicial Committeeof the Privy Council are decided by the Crown. All justice in England is rendered in the name of the king. Though theoretically the king exercises theprerogative of mercy and may grant pardon to persons convicted of criminal offences, yet actually this job is done by the Judicial Committee of the PrivyCouncil. Munro opines, "this is not a judicial power it is an executive power which the ministers control."6Head of churchBesides, the Crown is the head of the British Church. The archbishops, bishops, and other ecclesiastical officers are appointed by it. It is the final powerin relation to ecclesiastical matters. The appointments are made on the advice of the ministers.Fountain of HonourThe Crown is the fountain of honour. Each year a list of peerages and other honours like knighthood is prepared by the Prime Minister in consultation withthe Cabinet. The Prime Minister is, however, acquainted with the king's sensibilities in making up the list. He may add a name or strike off a name atthe monarch's request. However, it is not obligatory for the Prime Minister to act according to the likes and dislikes of the king.From the above description of the king's powers it is clear that his powers are immense and important; but as remarked in the preceding pages this is soonly in theory. In practice, the powers of the king have been transferred to the ministers who actually exercise these powers and are responsible for theday-to-day administration of the country. It was this fact that led Sir Henry Maine to remark that "the king of England reigns but does not rule." Thereal custodians of the powers of the king are the ministers who direct every action of the king. Even the Parliament has assumed a subordinate position.The authority of the Cabinet is so pervading and real that Ramsay Muir was compelled to remark that the "Parliament is a tool in the hands of the Cabinet."But it should not be presumed that the king has lost all authority and become a cipher. He is by no means without influence in the field of administrationand legislation. He personally performs certain specific acts. He receives foreign ambassadors and on the opening of a Parliament, reads the speech fromthe throne. It is the duty of the Prime Minister to keep the king informed concerning the major policies which his government proposes to execute and measureswhich his ministers41propose to lay before Parliament and to obtain the king's opinion, if he has any. Bagehot rightly remarked that the king has three rights - the right tobe consulted, the right to warn and the right to encourage. The right to be consulted means that the Prime Minister should consult the king before takingan important decision on any public matter. The king is more experienced than the Prime Minister. He is a non-party man. Therefore, his advice as it wouldbe based upon rich experience and deep knowledge it is apt to be a better advice. But if the Prime Minister does not act upon the advice of the King, thelatter has the right to warn the former. He may tell the Prime Minister, 'Whatever you think good, must be carried. Whatever you think good, has my fulland effective support. But for one or the other reason you are wrong, I do not oppose nor is it my function to oppose but I warn." If the king feels thatthe policy of the Prime Minister is for public good, he may encourage him so that the Government may feel that it has the king's support and it may carryout that policy effectively.In the end the influence of the royal opinion will, of course, depend upon the ability and personal force of the king and his relations with the Prime Minister.Lowell has summed up the position of the king in these words, "According to the earlier theory of the Constitution the ministers were the counsellors ofthe king. It was for them to advise and for him to decide. Now the parts are almost reversed. The king is consulted, but the ministers decide."The King can do no wrongAn important maxim on which the British constitutional structure rests is "the king can do no wrong." This maxim has three important implications:Firstly, it means that the king is above law and cannot be tried in any court of England for any wrongful act done by him. For example, if the king commitsany crime, there is no process known to English law by which he can be brought to trial. In short, this maxim ensures complete personal immunity to theking from the jurisdiction of ordinary courts of law.Secondly, the maxim means that the king is above all responsibility for the acts done in his name. No person can plead the orders of the king in defenceof any wrongful act by him. The king cannot authorise any person to do an illegal act. If any officer commits any crime under the orders of the king, itis the officer who will be held responsible and punished by the courts of England for such an offence. This point has been clarified in the Earl of Danby'scase of 1679 who was impeached42by the Parliament of "high treason and diverse high crimes and misdemeanors." Danby pleaded that whatever he had done was by order of the King. He evenproduced the royal pardon for the alleged offence. Parliament held Danby's plea illegal and void and laid down that "the minister cannot plead the commandof the king to justify an unconstitutional act."Back in the days of Charles II one of his courtiers wrote on the door of the royal bed-chamber:Here lies our sovereign lord the King.Whose word no man relies on; Who never says foolish thing, Nor ever does a wise one.This inscription truly represented the maxim, "the King can do no wrong" because Charles replied to this inscription that inasmuch as his sayings were hisown, his acts were the acts of his ministers. The king assumes no responsibility for his participation in the administration of the country.Thirdly, the maxim implies that for all intents and purposes it is the Minister-in-charge who is legally responsible for every act of the British Governmentperformed in the name of the king. This is why every order issued by the king is countersigned by the Minister-in-charge who is politically responsibleto the Parliament and legally responsible to the courts of law. Without the counter-signature of the minister concerned, no law possesses any validityin England and, therefore, cannot be applied in any court. It is because of the fact that the speech which the king delivers from the throne at the openingsession of Parliament, is the handiwork of the Cabinet ministers. Even his tour programmes are decided by the Cabinet.The Justification of MonarchyLooking to the titular position of the king in England and his insignificant influence in the administration a pertinent question often asked is, "Why retainthe kingship at all, if the authority of the Crown is no longer exercised by the king?" "What good purpose is served by continuing with monarchy?"It is, of course, true that the king has become powerless but it does not mean that he is devoid of influence. Monarchy is popularly acclaimed in Englandand is now generally accepted by all political views. To quote Laski, "Monarchy, to put it bluntly, has been sold to democracy as the symbol of itself,and so nearly universal has been the chorus of analogy which has accompanied the process of the sale that43the rare voices of dissent have hardly been heard. It is not without significance that the official news- papers of the Trade Union Congress devote morespace to news and pictures of the royal family than does any of its rivals."7 Although the Civil List, i.e., grant for the monarch and immediate membersof the royal family amounts to five over hundred one per cent of the Budget,8 yet little suggestion is made that the people fail to get their money's worth.Ceremony, pomp and ritual connected with royalty are not necessarily against democracy, for, according to Jennings, "Democratic government is not merelya matter of cold reason and prosaic policies. There must be some display of colour, and there is nothing more vivid than royal purple and imperial scarlet."9In the seventies of the nineteenth century England did see Republican Movement but the movement soon collapsed and Queen Victoria admonished publicallyDile, - the chief adherent of the Movement before including her in her Cabinet. Since then the kingship has not faced any tempestuous storm which couldshake its foundations. For the British "the Monarchy is a symbol of the enduring qualities of their race and living proof that whatever the future maybring it will not break too" radically with the tried and proven concepts of the past.10 What to speak of the Conservative Party, even the Labour Partyhas never felt any urge to abolish monarchy. The mass of the subjects adore their sovereign and that is due to various reasons.Royal influence of the kingThough the King has long ceased to exercise the powers vested in him, it would be erroneous, however, to conclude that he has no actual influence in thegovernment. He still personally performs certain definite acts. He receives foreign ambassadors, reads the speech from the throne, assents to the electionof a Speaker by the House of Commons, dissolves the Parliament and selects the Prime Minister. These acts are so indispensable that if kingship were tobe abolished some other provision would have to be made for them.Moreover, the king because of his long continuity in office and the consequent experience he acquires thereof, can very well discharge the role of generalcounsellor. In the words of Bagehot, the king has three rights - the right to be consulted, the right to encourage, and right to warn. He maintains closetouch with the Prime Minister who in consultation with the king often thrashes out a subject in hand before it is discussed in the Cabinet meeting. Onseveral occasions Queen Victoria wielded decisive influence upon public policies and measures, especially in connection with the conduct of foreign affairs.In 1869, she44mediated effectively between the ministers and the Lords on the question of disestablishing the Irish Church. In 1840, she practically prevented war betweenGreat Britain and France. In 1884, she brought about a sensible settlement between the Conservative House of Lords and the Liberal House of Commons. Similarly,the advice of Edward VII was a factor of great importance in the shaping and execution of public policy. He is known to have encouraged the Holdane armyreforms and to have sought to dissuade the House of Lords from rejecting the Lloyd George Budget of 1909. He was always accessible to the ministers withwhom he enjoyed discussing public affairs in a direct and informal way. George V also played an active role in the nation's affairs, especially in connectionwith the Irish question and the struggle over the Parliamentary Act of 1911. Though the ministers need not follow the advice of the king, yet they willhardly-disregard it. It is not only his exalted position that gives his advice weight, but also the fact of his broader knowledge being on the throne forsometime and his being above party politics also add to the value of his advice. According to Jennings, "In some matters especially on foreign mattersand those pertaining to the Commonwealth, the king has often more knowledge than the Prime Minister." Asquith opines that the ministers consider the adviceof the king more respectfully than the advice from any other source. "He is the umpire who sees that the great game of politics is played according tothe rules."11 At times monarch may keep lips sealed for fear of being misunderstood or ignored. In 1986 Queen Elizabeth II was in fact unhappy over Thatcher'sreluctance to apply sanctions against racist minority government of South Africa yet the Queen avoided pressing the Prime Minister for accepting her views.Supply of leadership to the British nationIn addition to the tangible services which the monarch performs and the influence he wields in government, the king furnishes a leadership for British society."In an age of lightning change," writes Ogg, "it lends a comfortable, even if merely psychological, sense of anchorage and stability; with the king inBuckingham Palace, people sleep more quietly in their beds."12 The visits of the king during the Second World War, to the various theatres of war and thebombed areas of England, had inspired the Britishers to mobilize and fight heroically at the war fronts. "God save the king" is the national anthem. TheMonarch is a more personalized and attractive symbol of national integrity. The national anthem excites the soldiers who sacrifice their lives for theking. The British society then accepts the king as its head with pride and45without any regression. "If royalty had been found blocking the road to full control of public affairs by the people, it is inconceivable, the forces oftradition could have pulled it through."13King as symbol of commonwealth unityBesides, the king provides a symbol of imperial unity. He is the mysterious link, the magic link which unites loosely bound but strongly interwoven Commonwealthof Nations, States and races. The king is the symbol of the free association of the members of the Commonwealth of Nations. Presently the Queen as thehead of the Commonwealth is a connecting link between England and nearly fifty other independent countries. Break this link furnished by royalty and allthat is left of the union of autonomous partners in the Commonwealth disappears. Mr. Laski holds that, "Irrespective of their differences all the politicalparties agree that the Crown is an essential element of the imperial unity." If kingship had not to exist no dominion would have accepted the Presidentelected by the British as their head of State.Practical utility of the kingPractical utility of the king which is an undeniable fact is discernible from the following points: (i) If no party is holding majority in the House ofCommons and a coalition is to be formed choice of a leader for Prime Ministership falls on the king. In 1924, George V chose Ramsay Macdonald and not Asquithas the leader though the Labour Party had behind it only one-third of the member of House of Commons, (ii) Whenever the Labour Party captures majorityit invariably selects it own leader but the conservatives have been losing the choice to the Monarch and then adopt the Prime Minister as their leader.Kalvin in 1923 and Chamberlain in 1937 were made leaders of the Conservative party after their appointment as the Prime Ministers. Likewise when AnthonyEden resigned in January 1957 due to Suez Canal crisis, Queen selected Harold MacMillan much against the expectations of people who were expecting R.A.Butler to be his successor. Labour Party docs not appreciate the Monarchy selected Prime Minister/Commenting on MacMillans appointment, James Griffithlabour leader said "We do not question that Crown acted with the constitutional propriety... but... we do believe it is important that parties themselvesshould decide or their leaders." (Hi) If during exceptionally abnormal circumstances the Prime Minister advises the king to dissolve the House of Commonsthe latter can reject the advice. For over last 100 years Monarch has not refused dissolution. According to Stannard, "If Chamberlain had advised dissolutionwhen Germans were crossing the Albert channel.... At such46critical moments the limits of the conventions that keep the Crown out of politics were reached and the reigning sovereign must himself decide in the lastresort where his duty lies." Moreover King/Queen may have to allow dissolution even twice within a year as was done in 1910 on the request of P.M. Asquith.In 1974, the House was dissolved twice once on the request of Heath and second time on the advice of Wilson. Evidently if the Monarch refuses dissolutionhe would be sacrificing neutrality that may endanger the Institution itself, (iv) During the period when one ministry resigns and the other is to takeits place all the powers though temporarily pass on to the king. Obviously without a king a void can be caused, (v) The king's role as a critic, adviserand a friend cannot be underestimated. According to Bagehot, the king exercises three rights - right to be consulted, right to encourage and right to warn.Sovereign advises and ministers take decisions. He is kept informed by the Prime Minister about the proceedings of the Cabinet. If the Prime Minister failsto convey to him the decision of the Cabinet he is within his right to seek information on his own accord. Besides, a word of warning by the king - theonly non-party man in the government - is given proper weight by the ministers. The nation and its representatives still honour the king's warnings andwords of advice, (vi) Receiving of ambassadors, reading the speech from the throne assenting to the election of the speaker, convening a conference ofleaders to meet a baffling crisis are some other personal functions of the king. Mr. Jenning rightly sums up, "In the first place the king supplies thevital element of personal interest to the proceedings of Government.... He therefore, supplies the personal and picturesque element which catches the popularimagination far more readily than constitutional arrangement, which cannot be heard or seen and a King or Queen who knows how to play this part skillfullyby a display of tact, graciousness, and benevolence, is rendering priceless services to the cause of contentment and good government... very closely alliedto this personal character of the king is the great unofficial and social influence which he yields, and, not he alone, but the Queen and in a lesser degree,the other members of the royal family. Their influence in matters of religion, morality, benevolence, fashion and even in art and literature, is immense....He is permanent; he is above all parties; he does not bargain for places and honours; he has nothing in the way of ambition to satisfy, except the nobleambition of securing his country's welfare. So he can say to ministers with all the weight of his experience and position: "Yes, I will, if you, insist,do as you wish; but I warn you, you are doing a rash47thing.... But a minister will, unless he is an exceptionally rash person, think many times before disregarding a warning from the king."14 According tothe Earl of Balfour, "The British monarchy is the living symbol of our national history. Instead of hiding the popular aspects of our institutions he hasrather brought them to light. He is not the leader of the nation, he is the King of all." Jennings also points out, "We may criticise the Government butwe would all praise the king."Even if monarchy is abolished, nothing would be gained now. In spite of the fact that monarchy persists, England is no less a democracy than either theUnited States or India. Abolition of kingship would not make it more democratic than she is today. Moreover, even if it were abolished, something wouldhave to be substituted because a parliamentary government needs a titular head of State. The Prime Minister is not a titular head in any country. If monarchyis abolished and a republic set up and a President is substituted in place of the king, the question would arise: What powers should the President possess?If he is made an American prototype that would mean an end to the supremacy of the Cabinet and through it of the Parliament. If he is made a French prototypeof the Fourth Republic, it would only be perpetuating the position of the king under a different name. Moreover, there would be the danger of the Presidentinvolving himself in party politics. Thus neither the American nor the French type would suit England because the Englishmen would not consent to the establishmentof an independent presidential executive on the American model, nor they would regard the French system as an improvement upon what they already have.To all this we may also add the fact that kingship has not proved an impediment to the progressive development of democracy. Had the king proved so, kingshipwould have hardly survived so long. In the words of Morrison, "The security and popularity of the British monarchy today are largely the result of thefact that it does not govern and that government is the task of the ministers responsible to the House of Commons elected by the people. The monarchy asit exists now facilitates the process of parliamentary democracy and functions as an upholder of freedom and representative government."15Therefore, besides the traditional conservatism of the British temperament which also accounts for the survival of monarchy, there are many other practicalconsiderations, as we have seen above that keep monarchy in the saddle. Laski writes, "Thus far, beyond doubt, the system of limited monarchy has beenan un-questionable success in48Great Britain. It has, so far, trodden its way with remarkable skill amid the changing habits of the time. Its success, no doubt, has been the outcome ofthe fact that it has exchanged power for influence; the blame for errors in policy has been laid at the door of ministers who have paid the penalty byloss of office."16 The monarchy as it exists now facilitates the process of parliamentary democracy. Monarchy has withstood the test of time and the Britishpeople realize and appreciate its dignifying, unifying and stabilising influence. Neumann rightly remarks for most of Englishmen "the Monarchy is a symbolof the enduring qualities of their race and living proof that whatever the future may bring it will not break too radically with the tried and proven conceptsof the past."17 The institution of monarchy has thus become a part of British heritage and culture. It is based on public opinion. The people want thatthe king should continue to be head of England and England should continue to be as now, "a crowned republic." The Englishmen see no reason why this venerableinstitution should be abolished. If monarchy is abolished, the British Church will be left without a ruler, the social structure will have to be completelyreorganised, the important link between England and the British Empire would be broken, the loyalty of the British people would become a mere imaginarysymbol, and the economy, if any, would prove futile. Otherwise too the total expenditure on the royal family and the palace is just a small fraction of1 percent of the total budget of Great Britain which is insignificant. Lowell, has aptly said, "If the king is no longer the motive power of the ship ofthe State, it is the spar on which the sail is bent, and as such it is not only a useful but an essential part of the vessel."18 Although on its face agross anachronism in a democracy the monarchy "remains impregnable, entrenched, being indeed, like the weather, something that the average Englishman simplytakes for granted."19However, the image of monarchy has been tarnished to a considerable extent due to ignoble happenings in the Royal family. The Charles-Diana affair has diminishedthe halo of sanctity round the British' monarchy. Most people in Britain are keen to have Prince William and not his father as the future king of GreatBritain.The fatal accident of Princess Diana in Paris invoked sympathies of the commoners and her funeral on September 6, 1997 shook the traditional Royalty toits last fibre and virtually brought it on the streets of London. After the funeral P.M. Tony Blair met the Queen for four hours and later commented thathe would help modernise the monarchy. A think tank supported by British P.M called upon the monarchy to49apologise for Britain's wrong doings in the Imperial past.The Queen is also very keen to improve the image of the Royal family in the wake of the Charles-Diana affair and public pressure to strip the Royal familyof prestigious privileges.References1. Munro. W.B., The Governments of Europe, p. 49.2. Ogg, English Government and Politics, p. 83.3. Since the Crown is an institution and its powers are exercised by the king as a person, therefore, the powers of the Crown are also the powers of theKing.4. Maitland. F.W., Origin and Growth of the English Constitution, p. 37.5. The veto was last employed in 1707 by Queen Anne in defeating a bill settling the militia in Scotland.6. Munro, The Government of Europe, p. 6-1.7. Laski, H.J., Parliamentary Government in England, p. 392.8. According to the Civil List adopted for the present Queen the total expenditure is as quoted above.9. Jenning, W.I., The British Constitution, p. 111.10. Neumann: European and Comparative Governments, p. 31.11. Munro, op. cit., p. 63.12. Ogg, op. cit., p. 112.13. Ogg and Zinc : op. cit. p. 65.14. Jenning, W.I., The British Constitution, p. 111.15. Morrison, H., Government and Parliament, p. 92.16. Laski, H.J., Parliamentary Government in England, p. 395.17. Neumann: European and Comparative Government p. 30.18. Lowell, A.L., The Government of England, vol. I, p. 26.19. Ogg, op. cit., p. 114.20. Hindustan Times dated September 10, 1997.504 THE CABINET"The Cabinet in England is the steering wheel of the ship of the State."—Ramsay MuirAs we have observed in the preceding chapters the Cabinet is the real executive in England. The vast and growing powers of the Crown are being exercisedby the Cabinet which has become the supreme directing authority and has come to be called the pivot of the whole political machinery. In this chapter weshall study the composition of the Cabinet, its functions and responsibilities.How the Cabinet aroseThe British Cabinet is the product of a long historical growth. To begin with, it was a part and parcel of the Privy Council which itself was the descendantof the Old Curia Regis of Norman times. The Privy Council was a body to give advice to the king and help him with the routine work of administration. Itsmembers were chosen at the discretion of the king. With the passage of time the membership of the Privy Council increased to such a large extent that itbecame difficult and inconvenient to hold a meeting of all the members for taking some important decisions. Consequently the kings began to consult onlythose few councillors who happened to be their favourites. The exact date at which this practice originated is not known, it probably began sometime beforethe public learned of it. Charles II (1660-1685), at any rate, elected five members - his close friends, to advise him in private. This circle was knownas 'CABAL' after the first letters of the names of the five members. But these members were not responsible to the Parliament. They held office duringthe pleasure of the king. The case of the Earl of Danby, who was impeached by the House of Commons and convicted by the House of Lords, laid down the principleof Ministerial Responsibility for all acts51of the king. However, by 1688 the Cabinet system, as it is understood today, had not acquired a definite form and shape. The Cabinet was still a vague andconfused institution.The Glorious Revolution of 1688 and the Act of Settlement, 1701 cleared the way for the establishment of parliamentary supremacy, and smoothened the growthof the Cabinet system. Prior to 1688 the king chose his advisers from his own close friends and supporters. He did not take into account the fact whetherthey had majority in the Parliament or not. He also did not give any consideration to their party affiliations. They were not responsible to the Parliament.William III on ascending the throne selected his advisers from both the major party groups in parliament But this plan could not work efficiently as theministers drawn from two opposing political parties could not work together. Consequently, in 1693-1696 he selected his advisers only from the Whig party.Later on, it became a convention that the ministers be chosen from amongst the members of the majority party. The Cabinet of 1697 popularly known as Sunderland'sJunta is regarded as the real beginning of the Cabinet system. It was constituted on the principle that all the members should be drawn from the dominantparty in parliament. Queen Anne carried the Cabinet system a stage further when she kept the Whig ministers in office in spite of her personal sympathiesfor the Tories. Thus the first principle of the Cabinet system, i.e., that the ministers be drawn from the majority party in the parliament, was evolved.But by this time the office of the Prime Minister had not arisen. Both William and Anne presided in person at the meetings of the Cabinet This gap in theCabinet system was filled in by George I who abstained from presiding at meetings of his Cabinet and commissioned Robert Walpole for this function. Walpoleheld this position not because of the king's favour but by virtue of his being the recognised leader of the dominant party in Parliament, thus making himthe first Prime Minister in the modem sense though he was not called the Prime Minister at that time. Walpole presided at the Cabinet meetings and at thesame time served as the leader of the House of Commons. He remained at his post till he had a parliamentary majority and resigned at once as soon as hefailed to command a majority. Thus in Walpole's administration we may find all the essential characteristics of the present day Cabinet system. He mouldedthe Cabinet system into the form which it retains today.52Although by the eighteenth century the cabinet system had come to be established, yet it did not attract the attention of any author. The constitution makersof the United States made no mention of it. We do not find any reference to it in Blackstone's Commentaries on the English Constitution. De Lolme alsomade no reference to it in his book. Bagehot for the first time made a reference to it in his book published in 1867.During the nineteenth century the Cabinet system became more crystallised. Now it was established that the ministers must be members of the Parliament,that they must have majority in the House of Commons, that they should belong to the same party and work under the leadership of the Prime Minister.In the twentieth century the practice that the Prime Minister should belong to the House of Commons became established. In 1923 Lord Curzon could not beappointed the Prime Minister because he was a peer. Instead Mr. Baldwin became the Prime Minister. The Ministers of the Crown Act, 1937 gave a legal sanctionto the institution of the cabinet. It recognised for the first time the office of the Prime Minister by giving him salary of ?10,000 a year as Prime Ministerand First Lord of Treasury. During die twentieth century the Cabinet gained more and more powers. Today, it is the pivot of the British administration.Distinction between Cabinet and MinistryIt would be worthwhile to first examine the distinction between Cabinet and Ministry. Sometimes, the word Ministry is used to mean Cabinet as if the twowords are synonymous. But these two terms denote distinct parts of the Government. Broadly, the distinction between Cabinet and Ministry is two-fold, onein respect of composition and second, in respect of functions. The Ministry is a large body consisting of "the whole number of Crown officials who haveseats in Parliament, are responsible to the House of Commons, and hold office subject to the approval of the working majority in that body. AH the membersof the Ministry are not the members of the Cabinet. There are five categories of ministers. In the first place, are the heads of the principal governments,e.g., the Secretary of State for Foreign Affairs, the Chancellor of Exchequer, the First Lord of Admiralty, etc. These members meet collectively and decideupon policy. Secondly, there are other high officers of the State, who are not incharge of departments, e.g., the Lord Chancellor, the Lord Privy Sealand the Lord President of the Council. Thirdly, there are parliamentary Under Secretaries who are53different from permanent Under Secretaries. Fourthly, there are government whips and lastly there are a few political officials of the Royal Household,e.g., the Treasurer, the Comptroller and the Vice-Chamberlain.All these five categories of ministers who number more than sixty make the Ministry. The Ministry does not meet as a body for the transaction of business.It has no collective functions.The Cabinet, on the other hand, consists of such members of the Ministry as the Prime Minister invites into the inner circle, although there are some membersof the Ministry who cannot be left out by the Prime Minister. The number of the Cabinet ministers varies round about twenty. Thus in respect of compositionthe Cabinet is a smaller body, whereas the Ministry is a larger body. The former is an inner circle within the bigger circle of the latter. All Cabinetmembers are ministers, but not all ministers are Cabinet members.The Cabinet generally includes the following:(i) The Prime Minister and the First Lord of the Treasury,(ii) The Lord President of the Council,(iii) The Lord Chancellor.(iv) The Principal Secretaries of the Foreign Office, the War Office, the Dominion Office, the Colonial Office, the Ministry for Air, and the Scotland Office,(v) The Lord Privy Seal, (vi) The First Lord of Admiralty, (vii) The President of the Board of Trade, (viii) The Ministers of Agriculture and Fisheries, Transport, Health, Labour Co-ordination and Pension,(ix) The Post Master General.Functionally, the Ministry differs from the Cabinet in that whereas the members of the Ministry have duties only as individual officers of administration,the members of the Cabinet have collective obligations. The Cabinet meets in a body, the Ministry never meets so. The Cabinet deliberates on matters ofpolicy and sees that the policy formulated by it is carried through. The members of the Cabinet are the most important members of their party and playan important role in the leadership of the country. The Ministry is in fact not a body at anisation of the CabinetThe first step in the formation of the Cabinet is the selection of the Prime Minister. It is now a well-settled usage that the Prime Minister must be theleader of the dominant party in the Parliament. So when a54Prime Minister resigns by reason of defeat at the polls or on the floor of the House, the king merely summons the victor and commissions him to make upa ministry - which tantamounts to appointing him Prime Minister. In earlier days, the king was likely to have some real choice in the matter but with thecrystallization of the two-party system he has no choice but to call upon the leader of the majority party, however much his personal preferences mightrun in a different direction.Although there is no bar for a peer being appointed the Prime Minister, but nowadays it is almost a rule that the Prime Minister be a commoner. Since thePrime Minister is responsible to the House of Commons, therefore, it is necessary that he should maintain close contact with it. No peer has held thisoffice since 1902.Once the Prime Minister is selected, he proceeds to draw up a list of Ministers. Ostensibly he has a free hand. In no way does Parliament control his selectionof men and he can be sure that the King will assent to whatever list he carries to Buckingham Palace. However, there are various considerations of a practicalnature which he must take into account. He cannot be guided solely by his personal likes or dislikes. He usually consults some of his leading followers.He must also see that various interests are represented. The members of the Ministry must be taken from both the Houses. The Prime Minister can hardlymiss the surviving members of past ministries of the party if they are in active public life and desirous of appointment. In 1929, Mr. McDonald did notwant Arthur Handerson to be the Secretary of Foreign Affairs but when Handerson refused to accept any other office, Mr. MacDonald had to yield. He hasalso to look to party solidarity in making up his ministry. In normal times it is taken for granted that the Prime Minister will select his colleaguesfrom his own party. 'The British Government is essentially a party government and the party spirit supplies the driving force of the whole machine."1 ThePrime Minister also includes some young men of the party who have made reputations for themselves in parliament. Regard is also had for geographical considerations;there must be ministers not only from England, but also from Scotland, Ireland, and Wales. Last but not the least, the Prime Minister has also to keepin mind the debating qualities and popularity of his ministers.Every Minister must be a member of either House of Parliament. If he is not a member of the Parliament at the time of his appointment, he must become amember after his appointment. This can be arranged by making him a peer or by "opening a constituency" by inducing some member of the House of Commonsto vacate his seat. Though there55have been exceptions when ministers held office without being members of Parliament, "the House of Commons is, however, extremely critical of such exceptions.Practical convenience as well as constitutional convention, therefore, compel the Prime Minister to confer office only upon members of Parliament or peers."2When the list is completed, the Prime Minister submits it to the king who assents to it. It does not, however, mean that the king has no say in the matter.Queen Victoria successfully advised the Prime Minister not to appoint certain individuals as ministers. After the king assents to the list, announcementforthwith appears in the London Gazette to the effect that the persons listed have been chosen by the Crown to occupy the posts bracketed against theirnames. It may, therefore, be said that the task of forming a new ministry demands of the Prime Minister great tactical skill. It is a task of much delicacy- "a work of great time, great labour and great responsibility."Features of the Cabinet SystemThe Cabinet, as we have seen above, is a smaller circle within a larger circle. It has come to occupy a very important place in the working of the wholepolitical system. It is the driving and the steering force of the governmental machinery. Prof. Dicey has said that the executive functions in Englandare carried by a committee which is called the cabinet. Laski has called the cabinet the committee of the party which has got majority in the House ofCommons. In fact, the stupendous success of the parliamentary system of the Government in England may be properly attributed to the Cabinet's high degreeof adaptability. The important features of the Cabinet system are detailed below:Exclusion of the King from the CabinetThe first important feature of the British Cabinet system is the exclusion of the King from the Cabinet. Though the King is the chief executive head andall the executive actions are done in his name, yet he stands outside the actual working of the Cabinet. He does not attend the Cabinet meetings and remainsneutral and above party politics. As we have seen, the abstention of the King from Cabinet meetings was originally a matter of accident because GeorgeI had stopped presiding over the Cabinet meetings as he was not conversant with the English language. Today it has become a matter of great constitutionalimportance that the King is excluded from the Cabinet.Co-operation between Cabinet and Parliament The second important feature of the cabinet system is the complete cooperation and harmony between the cabinet and the parliament. The56Prime Minister is the leader of the majority party in the parliament and all the ministers are also its members. If he is not, he becomes a member afterhis appointment. The membership of parliament accords to ministers a representative and responsible character. It binds the executive and legislature togetherwith the result that there is no working at cross purposes between the two organs. The ministers can get the desired legislation passed whereas the parliamentkeeps itself informed of the administration through questions and also controls the executive thereby. This harmonious collaboration ensures a stable andefficient government.Ministerial responsibilityIn the performance of its multifarious tasks the Cabinet is guided by the rule of ministerial responsibility. This responsibility is of two kinds: legaland political. By legal responsibility we mean that every act of the Crown must be countersigned by at least one minister who can be held responsible ina court of law if the act done is illegal. The King cannot be held responsible for any of his acts. In all of his acts the ministers are responsible. Thisprinciple of legal responsibility has become a part of the law of Constitution.But it is another kind of responsibility, i.e., political responsibility, which is the essence of the cabinet and is "Britain's principal contribution tomodern political practice." We shall consider this aspect of responsibility under three heads:(i) Responsibility of the King: Legally the Prime Minister and the Cabinet are appointed by the King and if he is not satisfied by the Cabinet, he can dismissit. But this is just a theoretical maxim and in practice the King can never exercise this power without the possibility of serious consequences to hisThrone. This aspect of responsibility only means that it is the duty of the Cabinet to keep the King informed of all its decisions.(ii) Responsibility of its own ministers: This is a consequence of the doctrine of the Cabinet's solidarity and collective responsibility. The Cabinet asa whole is answerable for the acts of its members. Since a minister, by a particular mistake, can involve the whole Cabinet in trouble it is essentialthat every member must consult others before taking any important decision. Along with it, he must support the decision of other ministers. In case hefinds himself unable to do so, the proper course for him would be to resign. There are cases when one minister resigns and others remain in office. LordJohn Russel resigned in 1855 because he agreed with Rockbuck's motion and was not57prepared to join with the cabinet in resisting it. General Peel and three other ministers resigned because they did not agree with and support Disraeli'sReform Bill. Lord Morley and Burns resigned in 1914 as they could not approve the decision to war. In 1938 Anthony Eden resigned because he did not agreewith the foreign policy of Mr. Chamberlain. In 1961 John Profumo Minister of War had to resign as he had an affair with Christinkeeler—a call girl whosimultaneously had a relation with the Attache of Soviet Mission in London which could result in leakage of secrets. This saved Macmillan's Governmentwhich was otherwise under fire on the floor of the House of Commons. Likewise two junior ministers — Lord Lambton and Lord Jelicoc who had illicit relationswith Nouma Levi — a call girl resigned and Heath's Government was saved. A serious threat to Mr. Thatcher's Government was averted in 1986 when Aucher- Deputy Chairman of Conservative party exposed in a sex scandal resigned the post. Thus if individual ministers own responsibility the Government is saved.But all these cases of resignation by an individual minister and others remaining in office only prove the principle of collective responsibility and theneed of agreement among all the members of the Cabinet so long as they are in office. Lord Salisbury had once said that whatever takes place in the Cabinet,every minister who does not resign is fully responsible for it. He cannot later on say that he agreed on one point but on the other point his colleaguesforced him to agree. Lord Morley had also said that generally the whole Cabinet is concerned with every important decision. Its members take oath togetherand go out together. The Cabinet is one unit. Its views are put before the King and the parliament as if these are the views of a single individual. Itgives its advice to the King, the Commons and the Lords as one unit. The first feature of the Cabinet is its joint or undivided responsibility. Therefore,it is necessary that the minister should either agree with the decisions of the Cabinet or resign. Lord Melbourne used to tell his colleagues that whatwe do is not so important as that we all should speak with one voice.(iii) Responsibility to the House of Commons: This aspect of the Cabinet responsibility is by far the most important because it is a well recognised factof the British Constitution that the Cabinet can remain in office only so long as it enjoys the confidence of the House of Commons and that it must resignwhen it loses the support of the majority of the members of that House. This obligation to resign is collective. All the ministers must resign. They falland stand together. "This may sound rather rough," writes Morrison, "and indeed from time58to time it is. But the Government must stand together as a whole am ministers must not contradict each other, otherwise cracks will appear in the governmentfabric." Collective responsibility is the sine qua not of the Cabinet system. Ogg writes, "When a minister - either because o his own action or becauseof actions of a subordinate for which he is responsible - falls into such a predicament, he is not left by colleague; merely to sink or swim while theylook on from the distant shore. Either they jump in and push him under, or they haul him into their boat and accept his fate as their own."3There are various ways in which the House of Commons may show its lack of confidence in the ministry and thereby compel it to resign or appeal to the electorate.It may pass a simple vote of "want of confidence," thereby expressing disapproval of general policy. It may pass a vote of censure, criticizing the cabinetfor some specific act It may defeat a government bill or may amend it in a way that the ministers are unwilling to accept it. Amendments brought forwardin the House are often accepted by the minister in charge of the bill, but if these are not accepted the cabinet must resign. The first cabinet to bowas a body before a hostile House of Commons was the Ministry of Lord North in 1782. To quote a recent example in March 1979 Labour Govt. headed by JamesCallaghan had to quit when no confidence was passed in the House of Commons on the move of Mrs. Thatcher. The Government ordered general elections on May3, 1979. Mrs. Thatcher came in power.It is not binding that the cabinet must resign on an adverse vote in the Commons. Instead, it may continue in the office and advise the King to dissolveparliament and hold a general election. If the election yields a majority prepared to support the Ministry, it is given a new lease of life. But if theresult of the polling is unfavourable it does not wait for parliament to assemble and vote want of confidence. It hands over the seals of office and makesway as quickly as pending business can be cleared up.It may be asked what would happen if a ministry does not resign on the defeat in the House of Commons. Certainly the obligation to resign in such a caseis not a legal one but rests on convention and immediately no remedy is available against such a cabinet. However, in the long run a cabinet must findit impossible to carry on the administration in defiance of the Parliament. The budget must be voted annually and if the majority opposes it the cabinetwill have to raise money without parliamentary sanction which would be an illegal act. Once a cabinet59acts illegally, the courts can take action against it. Thus the cabinet on being defeated in the Commons must resign.(iv) Leadership of the Prime Minister: The fourth important feature of the cabinet system is the leadership of the Prime Minister. The cabinet works underhis captaincy. "The Prime Minister," according to Morley, "is the keystone of the cabinet arch." Although all the members of the cabinet stand on an equalfooting, yet the dominance of the Prime Minister is evident. He exercises a general supervision over the work of his colleagues. He is the umpire in caseof any difference of opinion among them. In case of difference of opinion between him and one of his ministers, it is the minister who resigns if he isunable to agree with the Prime Minister. We shall have occasion to refer to the position of Prime Minister later in this chapter.(v) Secrecy and Party Solidarity: Another important feature of the cabinet system is the secrecy of the policy and party solidarity. The meetings of thecabinet are held "in camera" and are not open to the press. Its proceedings are secret and confidential. All the ministers are expected to maintain completesecrecy with regard to the proceedings and policies of the cabinet. The Prime Minister, or some other authorized spokesman, may give to the press someindication of what has happened, or may make statements in parliament from which a good teal can be deduced. In short, the cabinet not only deliberatesprivately but it throws a veil of secrecy over the proceedings. Secrecy combined with the leadership of the Prime Minister helps the ministers to presenta solid front. The ministers are well aware that any lack of solidarity, or even the appearance of it, will soon rise to plague them. So they present asolid front to the outside world and speak with one voice and support each other. Thus secrecy and party solidarity are essential parts of the Cabinetsystem.(vi) Political Homogeneity: The last feature of the British cabinet is its political homogeneity. It is a secret of collective responsibility. The membersof the cabinet are taken from the same party. The party which secures majority in the Commons is given the opportunity to form the cabinet. The leaderof the party becomes the Prime Minister who includes members of his own party in the cabinet. Since all the ministers belong to the same party, they holdsimilar views. They examine the problem from the same view point. The party organisation of the cabinet gives it unity of purpose and it can follow a policywhich will get the majority support from the Commons. That is why, a coalition ministry is not much favoured in England. Though there has been a60coalition ministry but it has been an exception rather than the rule and that too under extraordinary circumstances. Such a ministry did not last long.It may also be remembered that political homogeneity adds force to the principle of collective responsibility on which rests the entire structure of theBritish parliamentary system.Mitchell sums up the most important features of the Cabinet "The doctrine of collective responsibility is fundamental to cohesiveness: cabinet secrecy followsas a matter of common necessity......"4Functions of the CabinetIn discussing the functions of the cabinet a distinction may be made between individual and collective functions. By individual functions we mean the functionswhich every member of the cabinet performs individually. Each member of the cabinet holds the charge of one or the other branch of administration and looksto its functioning. The functions which the individual minister performs within his department may be called the individual functions of the cabinet Inaddition to their individual functions the members of the cabinet also perform a number of functions in a collective capacity. They form a body and asa body they deliberate upon the policy and formulate decisions. Regular meetings of the cabinet are held once a week when the parliament is in session.During the parliamentary session the Cabinet meets when there is a need for the meeting. The meetings ordinarily take place at the Prime Minister's officialresidence, No. 10 Downing Street, or occasionally in the Prime Minister's room at the House of Commons. According to the Report of the Machinery of GovernmentCommittee (1918) there are three functions of the Cabinet:(i) The final determination of the policy to be submitted to Parliament,(ii) The supreme control of the national executive in accordance with the policy prescribed by Parliament, (iii) The continuous coordination and delimitation of the authorities of the several departments of the State.Policy determining functionsThe Cabinet is primarily a deliberative and policy formulating body. All sorts of domestic and international problems are discussed in the Cabinet and decisionsin regard to the policy are reached. The Cabinet takes the decision on a particular national or international problem and once the decision has been taken,all the members of the Cabinet are expected to abide by it irrespective of their personal likes or dislikes.61When policy has been determined by the Cabinet, it is put into execution either by administrative action or by getting a new bill enacted. Legislation is,thus, the handmaid of administration.Legislative functionsThe Cabinet Ministers guide and control the work of Parliament. They prepare the speech from the Throne in which the programme of legislation is set forthat the beginning of every Parliamentary session. They formulate, introduce, explain and urge the adoption of legislative measures upon all manner of subjects.Though non-ministerial members also may present the bills, there is little hope of their being passed unless they receive the support of the Cabinet. Practicallyall of the time of the House of Commons is consumed in the consideration of the measures in which the Cabinet is interested. When will the Commons meetand what matters it shall consider and how much time will be given to different matters - all these are decided by the cabinet. It is no exaggeration tosay that today it is the Cabinet which legislates with the advice and consent of Parliament. To sum up in the words of Ogg, the Cabinet Ministers "formulatepolicies, make decisions and draft bills on all significant matters which in their judgment require legislative attention, asking of Parliament only thatit gives effect to such decisions and policies by considering them and taking the necessary votes."5In the twentieth Century the cabinet has come to possess delegated legislative authority and administrative adjudicatory powers as well.6 This has enhancedits prestige and increased its authority considerably. Addition of such powers has been categorised as "New Despotism" by some critics.Supreme control of the national executiveThe Cabinet is the Supreme National Executive. Legally, all the executive power vests in the King, but, as we have seen in the preceding chapter, it isthe cabinet which really exercises all the executive powers vested in the king who is only a titular head of the State. The ministers preside over thedepartments of government and carry out the policy determined by the cabinet and approved by the parliament. The ministers scrupulously follow the directionsof the cabinet. Any deviation there from by a minister may lead to his removal.The cabinet may get the orders-in-council issued by the King's order to give effect to some more general line of policy including even a declaration ofwar. It may be noted that both the World Wars were declared by orders-in-council. Moreover, the power of delegated 62legislation has further enhanced the executive authority of the Cabinet. In modern times the volume of legislation having increased, the parliament passeslaw in skeleton form, leaving it to the cabinet to fill in the gaps and make rules and regulations for giving effect to these laws.The cabinet does not consider the appointments to lower posts but all the major appointments are decided by the cabinet. Thus, appointments to the officesof Ambassadors, High Commissioners, Governors, etc., are made upon the advice of the Cabinet.The Cabinet as a Co-ordinatorThough administration is divided into numerous departments, yet it is difficult to execute a water-tight division among various departments. The actionof one department affects the work of another department. Indeed, the government is a unit and every problem cuts across departmental boundaries. In thiscase the Cabinet does the task of coordinating policy. "This means not only the linking of specific administrative decisions by reference to general policy,but the expression of the same general policy in legislation."Determination of FinancesAccording to Ramsay Muir, the Cabinet also decides as to what taxes will be levied, how these will be collected and in what manner these will be spent.The decision regarding the imposition of taxes, abolishing or reducing the old ones is taken in the cabinet. The Chancellor of the Exchequer is an importantmember of the cabinet. He prepares the annual budget and before it is presented to the parliament, it is discussed in the Cabinet.7It can, therefore, be concluded that the Cabinet has not only become the real executive but has also assumed the role of a little legislature. It formulatesthe policy, enforces the laws, run the administration, effects important appointments, decides on matters of war and peace, prepares budget, awards honour,initiates legislation and secures its passage. The cabinet is the government of Great Britain.Cabinet DictatorshipThe authorities of the British Constitution have described the importance of the Cabinet in colourful phrases. Lowell calls it "the keystone of the politicalarch." Sir John Marriott refers to it as "the pivot round which the whole political machinery revolves." Ramsay Muir called it "the steering wheel of theship of State." Gladstone found it the "solar orb round which the other bodies revolve." The fact cannot be denied that the Cabinet has steadily grownin power. Whereas in the63nineteenth century we used to speak of the parliamentary supremacy, in the twentieth century we speak of the Cabinet dictatorship. Ramsay Muir writes, "Abody which wields such powers as these may fairly be described as omnipotent in theory, however capable it may be of using its omnipotence. Its position,whenever it commands a majority, is a dictatorship only qualified by publicity. This dictatorship is far more absolute than it was two generations ago."8There are several factors that have given rise to the dictatorship of the cabinet.(i) Growth of Party System: One of the major factors which has given rise to the cabinet dictatorship is the growth of party system in England. Before 1832and for some time even after that there was no party organisation and little party discipline. In those days the members contested the election to theHouse of Commons on their own account and with their own resources. When they went to the parliament they aligned themselves to one party or the otheraccording to their political convictions. Their allegiance to the party was only of a general and very flexible character. So long as they agreed withthe policy of the party they voted for it, but if they disagreed on a particular question, they voted for the other party. Those were the days of freevoting and cross voting. Debates on particular problems were very significant and convincing, arguments detached large numbers from the opposite camp.In short, the control of the House of Commons over the cabinet was genuine.But all this, however, changed as a result of party organisation that sprang up in Great Britain after the increase of electorates as a result of variousReform Acts. No party organisation was needed when the electorate was small and handy. But when it was considerably increased permanent organisations becamealmost indispensable for the purpose of bringing voters to the polls. Elections became costlier than before. The candidates were no longer confined tothe rich classes but people from the lower, middle and even labouring classes aspired membership of the parliament. The party organisation enlisted thevoters, carried propaganda, collected money, selected candidates for the various constituencies and helped them with money. The party extracted a pledgefrom the/ candidates that if returned to parliament they would abide by the instructions of the party leaders. Hence an independent member of the Houseof Commons is a rare personage now. Members of the majority party whose leaders form the cabinet are pledged to support them, no matter what the policymay be. Parliamentary debates have been robbed of their significance. A debate hardly alters a single vote. If64a member feels that he cannot vote for his party, the proper course for him is to resign his seat which he won on the party ticket.Now it is easy to understand how the cabinet has found it possible to establish a sort of dictatorship over the House of Commons. With majority behind it,the Government can defeat any hostile move coming from the opposition. There is rarely a substantial amendment to the bills as they are introduced by thecabinet and there is hardly any alteration in the budget as it is introduced. As Sydney Low remarks, "Now-a-days a cabinet is never defeated on the floorof the House of Commons." It resigns either as a result of defeat of the party in general elections or else as a result of split among the leaders of theparty themselves. The legislature has lost all the powers to the cabinet. Law making has been annexed by the government. With the whip over the heads ofits supporters on the benches the cabinet makes it next to impossible for even the ablest and most spirited among them to question publicly, much lessto vote against the proposals upon which Whitehall has revolved. Today, the conscience of a member has no place, he has to follow the party lines inevitably.The party discipline is no less severe than military discipline. The entire party system has become essentially professionalized. Anyone violating theparty discipline and going against the party mandate can at once be removed from the party. Removed from the party his political future gets bleak. Withoutparty it is difficult to contest the election and win, and if somehow he is elected, he remains without any effective voice. Under the circumstances eachmember prefers to follow the party mandate than charter his own course and suffer its disadvantages. The party members, therefore, are pledged head tofoot to vote for the party. No wonder then that the cabinet has succeeded in establishing its dictatorship in the country and made the House of Commonsa tool in its hands. Flushed with the majority the Cabinet can press unpalatable measures on the House of Commons and even violate the solemn pledges madeat the time of general elections. In the words of Prof. Keith, "What is clear, however, is that a Government with a large majority is limited in its legislativeprogramme only by its own good sense and its respect for those rules of debate which generations of men in all parties have agreed upon."* The dictatorshipof the cabinet is a patent fact.(ii) Growth of Delegated Legislation: The growth of delegated legislation has also led to the growth of party dictatorship. The functions of the modernState are no longer confined to police functions. It today discharges numerous social welfare functions. The65modern legislation is so vast in scope and intricate in nature that no parliament can possibly find time to supply all the detailed legislation. So theparliament in Britain as elsewhere has adopted the practice of passing laws in skeleton form leaving to the cabinet the job of filling in the detailedprovisions. This authority to issue delegated legislation has raised the cabinet to the status of real Legislature and practically reduced the parliamentto a secondary position. Complaint is frequently heard in England that parliament is merely handling back to the Crown the powers which it won after battlesfor centuries, from the king. As a consequence of the wide scope of delegated legislation the government in England has become a government "by executiveorder rather than by law, by decree rather than by deliberation."(iii) Administrative Justice: Administrative justice also has contributed to the growth of cabinet dictatorship. In recent years it has been the tendencyof governments to empower the executive bodies to hear disputes related to their departments, pronounce judgments and enforce their penalties. In manycases there is no right of appeal to the courts. Hardly any important department fails in these days to have a wide range of judicial powers which it exercisesunder statutory authority and in complete independence of the court of law. The Board of Education hears and gives final decision upon appeals turningupon essentially judicial questions arising between local educational authorities and the managers of denominational schools. The Ministry of Transportsimilarly disposes of appeals in regard to the granting of various kinds of licences. The Home Office exercises numerous functions of a judicial nature,involving intricate questions of law and functions in fact, "ranging from the decision as to whether a man is or is not an alien, and if an alien, of whatnationality, to the commutation of the death penalty in capital offences."10 In one of its judgments, the House of Lords pronounced that the administrativetribunals need not necessarily follow the procedure of a law court. The administrative judges may follow the procedure which satisfies their purpose.(iv) Power to Dissolve the Parliament: Another factor that has contributed to the growth of cabinet dictatorship is the power of dissolution into the handsof Prime Minister. One of the conventions in England is that in case a Ministry is defeated on the floor of the House of Commons, it need not resign immediatelybut instead the Prime Minister can request the King to dissolve the Parliament who accedes to the request and orders the dissolution. This threat to getthe parliament dissolved hangs like the sword of Damocles over the heads of the66members of the parliament who come to their senses as soon as this threat is given by the cabinet. The dissolution of the House means fresh elections andextra expenditure to be incurred by members and entails the likelihood of losing the seat. No individual member, therefore, likes to take the risk of anelection contest and consequently there is unflinching obedience to the dictates of cabinet. Bagehot once remarked that the cabinet gets its life fromthe House of Commons but unlike other organisms it has the power to destroy its life-giver.(v) Collective Responsibility: Besides the above factors, the evolution of the principle of collective responsibility of ministers to the parliament hasalso contributed to the rise of the cabinet. The ministers sink or swim together. Their solidarity has helped them to be more assertive and thus strengthenthe cabinet.(vi) Peculiar Conditions of British Parliamentary Life: Peculiar conditions of British Parliamentary life also do not enable the House of Commons to controlthe cabinet effectively. The theoretical accountability of cabinet to the House of Commons remains in abeyance for nearly half of the year when Parliamentis not in session. During the summer session of the parliament also half of the House is busy in amusement rather than work. In the words of Sidney Low,"Members of the House of Commons are occupied in various ways. They have many things to interest them during the short London session though they may haveevery desire to do their political work properly. The circumstances are much against them. Half the House is taken up with business and the other halfwith amusement. As the session goes on and weather grows warmer the London society plunges into its summer rush of brief excitement and many members findit difficult to devote their energies steadily to their parliamentary duties." Thus the very working of the British parliamentary life itself helps thecabinet to become autocratic.Consequently, most of the powers of the Parliament have now been usurped by the cabinet. With the majority at its back, the cabinet has brought the parliamentunder its control. The cabinet possesses the means to maintain its majority. A government which has a real majority can be reasonably certain of maintainingitself in power as long as parliament lasts.ConclusionIt should not, however, be presumed that the cabinet can ride roughshod over the parliament and that it is not responsible for its acts to any other power.The cabinet cannot behave rudely in the parliament and dictate67to the minority. If the cabinet maintains threats of dissolution and shows incapacity to soothe the public, its own supporters will revolt against it. Ithas to keep itself aware of the feelings and accommodate these feelings in formulating the government policy even at the necessity of a change in policy,otherwise it may create critical situation. The cabinet has its finger always on the pulse of the House of Commons and especially of its own majority there.Its function is, in large part, to sum up and formulate the desires of its supporters. The Prime Minister should, in the words of Carlyle, say that, "Iam their leader, so I follow them." Though it may not be an exaggeration to say that at present the cabinet legislates with the advice and consent of parliament,yet to be sure the Houses have still a good deal of opportunity to discuss public policy and to bring public opinion to bear upon them.Moreover, there are the customs of the House which the cabinet cannot violate without giving rise to an uproar in the parliament and outside. These customsarose for the protection of the minority and the speaker is the impartial custodian of the rights of the minority. These customs modify considerably therigours of the majority rule. The cabinet, therefore, cannot dare go against the customs of the parliament without incurring a risk to its own life. Then,there is the opposition to criticise the government for its wrongs and lapses. Diligent performance of this duty by the opposition is a major check onthe cabinet. The government recognises that it is its duty to meet criticism not by suppressing opposition but by convincing it through rational arguments.A government which does not respect the House and neglects the opposition does so at its own peril. The cabinet is, no doubt, normally the master of theHouse of Commons but, as Laski says, "there are always limits to its mastery which it must take into account,"11 The question of the cabinet becoming adictator, therefore, becomes remote. Dr. Jennings has given a very balanced comparison of dictatorial countries with the rule by the British cabinet inthe following words: "The real difference between Britain and the dictatorship countries is that with us there is not one faction seeking to maintain itselfin power by persuasion, fraud or force but at least two factions each trying to achieve and maintain power by persuasion."Nor is the cabinet insensitive to public opinion. It is careful not to do anything which will antagonise the people. There was a time when the governmentwas not much in the public eye. There were no telegraphs or telephones; newspaper service was slow and scant; people travelled but little; public opinionhad small opportunity to form or68function Now, all is different. The government today works in the glare of pitiless publicity. It must keep its ear to the ground and have regard for thesusceptibilities and reactions of the man in the street to a far greater degree than in the old days. This means that the ministers now take their cuemore largely from what seems to be public opinion. In 1934 there was a great outcry against the provisions of the Incitement to Disaffection Bill. TheNational Government had an unprecedented majority and, no doubt, the Bill was passed, but the Bill as passed, "was very different from the Bill as presented;and public had amended it." In 1935, Sir Samuel Hoare, the Foreign Secretary resigned, because he could not "get the confidence of the great body of opinionin the country." In 1940, public opinion compelled the government to resign. The dictatorship of the cabinet is, therefore, not a matter of reality ifgovernment by public opinion is to be accepted as the formula 0/ democracy. Referring to the growing authority of the cabinet but within limits Lowellcorrectly opined, "It is an autocracy exerted with the utmost publicity under a constant fire of criticism and tempered by the force of public opinion,the risk of a want of confidence and prospects of next election."The Prime MinisterIn describing the features of the British Cabinet system we had the occasion to remark that the leadership of the Prime Minister forms one of the essentialfeatures on which the Cabinet System works. Now we shall examine the position of the Prime Minister in somewhat greater detail.The office of the Prime Minister as we have shown earlier, is the result of a mere accident. Walpole was the first Prime Minister of England who was commissionedto preside over the meetings of the cabinet because George I did not know English language and was not interested very much in English affairs. Till recently,his office remained unknown to the law. Not until 1878 did the term "Prime Minister" make its appearance in any public document. It was in the treaty ofBerlin that Lord Beaconsfield was referred to as "first Lord of Her Majesty's Treasury, Prime Minister of England." But this designation as "Prime Minister"was, as Sydney Low points out, "a concession to the ignorance of foreigners, who might not have understood the real position of the British plenipotentiaryif he had been merely given his official title."12 It was by an Act of 1906 which gave a definite and exalted rank to the Prime Minister by fixing theorder of precedence in state ceremonials, and made him the fourth subject of the69realm. The Chequers Estate Act, 1917 refers to "the person holding the office popularly known as Prime Minister" and provides for the use of chequers bythe incumbent of the office. The Ministers of the Crown Act, 1937, recognised for the first time, the office of Prime Minister by giving him the salary?10,000 a year as Prime Minister and First Lord of the Treasury. Presently he draws ? 58,650 per year as salary and ? 13,875 as constituency allowance.These Acts, though, have recognised the constitutional position of the Prime Minister, yet they have not conferred any legal power as such. Whatever powersthe Prime Minister exercises are derived from constitutional conventions. What Gladstone has said is true to a great extent, that "nowhere in the wideworld, does so great a substance cast so small a shadow, nowhere is there a man who has so much power, with so little to show for it in the way of formaltitle or prerogative." Parties contest elections projecting an individual as prospective Prime Minister. 1979 election of House of Commons was in factelection for choosing Mrs. Thatcher (Conservative) or Callaghan (Labour) as the P.M. The conservatives in April 1992 elections captured majority due toJohn Major, a dynamic Prime Minister who took over from Mrs. Thatcher only in Nov. 1990.Functions of the Prime Minister(i) Formation of the CabinetThe functions of the Prime Minister are many and varied. His first function is to make the government. Being the leader of the majority party in the Houseof Commons, he is called by the king to form the ministry. Although the prime minister is the sole authority to select any person as the minister of thecabinet, yet he is influenced in his judgment by many considerations. He has to accommodate the claims and views of leading members of his party. He mayconsult some of them. According to Lord Woolton "whilst it is probable that Prime Minister may confidentially consult some of his potential colleaguesas to the choice of the Ministers he should submit to the Crown. The decision is his and his alone. It is for him to decide on the size of the Cabinet.He has a free hand in shaping his government according to his own view of what is likely to work best and according to his personal preferences. "The primeminister," remarks Finer, "has to make the cabinet work, it is his; he must give it cohesion; he must arbitrate differences of view and personality; hemust fit all the necessary talents together into a republican team."13(ii) Distribution of PortfoliosThe allocation of offices is also done by the Prime Minister, although a minister can decline what is given, if he commands much support in the70party as to make it unwise for the Prime Minister to dispense with his services. In 1929, MacDonald did not want to appoint Arthur Handerson as the foreignminister, but ultimately he had to give the foreign office to Mr. Handerson as the latter was not willing to accept any other office.(iii) To Shuffle the MinistryThe Prime Minister has also the right to reshuffle his pack as he pleases. He can review the allocation of offices among his colleagues and consider whetherthat allocation still remains the best that can be effected. He can request any of his colleagues to resign if he thinks that his presence in the ministryis prejudicial to the efficiency or stability of the Government. He can also advise the king to dismiss a minister. In July 1962, MacMillan dismissed 7out of 20 ministers. Sir Robert Peel once said, "Under all ordinary circumstances if there were a serious difference of opinion between the Prime Ministerand one of his colleagues, and that difference could not be reconciled by an amicable understanding the result would be the retirement of the colleague,not of the Prime Minister." To sum up, the Prime Minister is the keystone of the cabinet arch and can make or unmake the cabinet in any way he likes.(iv) Chairman of the CabinetThe prime minister summons the meetings of the cabinet and presides over them. He decides the agenda of the meetings and it is for him to accept or rejectproposals made by its members for discussion. Though there is little possibility of the ministers disagreeing in the cabinet meeting as they must eventuallyagree if party solidarity is to be maintained, however, if differences crop up, then the prime minister as the Chairman of the Cabinet may impose a decision.Describing MacDonald as an excellent chairman of the cabinet Samuel says, "MacDonald was a good Chairman of Cabinet, carefully preparing his material beforehand,conciliatory in manner and resourceful. In the conduct of a cabinet, when a knot or a tangle begins to appear, the important thing is for the prime ministernot to let it be drawn tight; so long as it is kept loose it may still be unravelled. MacDonald was skilful in such a situation - and there were many."14(v) As CoordinatorThe prime minister also acts as the guide of the cabinet. In the words of Mackintosh "...a body of the size of the cabinet loaded with business will simplyfail to operate unless it is subordinated to a chairman who can guide, summarise and close the discussions.15 He tries to coordinate71the policies of the several ministries. It is his endeavour to see that the government works as a unit and the different departments do not pull in oppositedirections. The prime minister is, as Morrison says, "eminently a co-ordinating minister. He has to keep abreast of a wide range of matters. He cannotknow everything that is going on over the whole field of government and it would be foolish for him to try, but he must know enough to be ready to interveneif he apprehends that something is going wrong." Sometimes, the prime minister may commit himself to a particular policy even without previously consultinghis colleagues. Chamberlain adopted a foreign policy of his own, forced it in the foreign office and compelled Anthony Eden, the foreign secretary, toresign.(vi) Leader of the House of CommonsIt is now an established precedent that the prime minister must belong to the House of Commons. He acts as the leader of this House. He represents the cabinetas a whole in the House. He makes authoritative statements and explanations of the government's policy; speaks on most important bills; and at crucialstages also bears the brunt of debate from the government benches. In fact, the House always looks to him as the fountain of policy. The party whips inthe House are under his direct supervision and through them he issues orders to the members of the party in the House. It is he who decides as to whenthe House is to be summoned and for what period. In short, the prime minister being the leader, guides and influences all the legislations in the Houseof Commons. However on certain occasions the prime minister deputed one of his senior colleagues for the job. In 1976, Callaghan named Michael Foot asthe leader of the House.(vii) Power of DissolutionThe prime minister is the only person who is authorized to advise the King to dissolve the House of Commons. It is he who has to choose the best momentfor election. This power in the hands of the Prime Minister puts the members of the House on his mercy because dissolution means new elections withoutthe certainty of being elected. "Men do not like to run the risks," observes Byrum Carter, "which are involved in this process if little is to be gainedfrom incurring the danger."16 Though the king can refuse dissolution to the prime minister yet it is hard to conceive that in practice he will ever doso. During the last hundred years there has been no instance of a refusal of dissolution by the king when advised by the prime minister. It may be emphasizedthat the right72to advise a dissolution is possessed by the prime minister who exercises this right in his discretion and judgment. Sir John Simon wrote in 1935, that "thedecision whether there shall be an immediate general election, and if so, on what date the country shall go to the polls, rests with the prime ministerand until the Prime Minister has decided, all anticipations are without authority."17 Keith is of the opinion that the Prime Minister should consult theCabinet on the issue of dissolution.18(viii) Channel of CommunicationThe prime minister is the main channel of communication between the cabinet and the king. Though any minister has a legal right of access to the king; andon more than one occasion Queen Victoria conferred with individual ministers practically behind the back of their chief, but this practice has been discontinued.Now the prime minister apprises the King of the opinions and decisions of the Government. He also carries the opinions of the King to his colleagues andthus acts as the link between the king and the cabinet, interpreting the opinions and decisions of one to the other.(ix) Chief Adviser of the kingThe prime minister is also the chief adviser of the King. He recommends the names of the persons on whom the honours are to be bestowed by the King. Healso advises the King in matters of appointments and other matters of national importance. He can render any advice to the King without even consultingthe cabinet. The prime minister frequently visits the Buckingham Palace to see the King. In busy periods he supplements his visits by daily letters. Thusthe Prime Minister enjoys a great patronage.(x) Representative of the nationIn addition to the above functions the prime minister also performs many other functions of a varied nature. He occasionally attends and participates ininternational conferences or meetings. Lord Beaconsfield attended the Congress of Berlin, Lloyd George participated in the peace conference at Paris, Chamberlainattended the meetings in Germany preceding the Munich Agreement, Churchill met Roosevelt several times and Stalin two times. In dealing with Commonwealthcountries and dominions he takes the lead. His position in foreign affairs is so important that foreign secretary is always close to him. Finer remarks"Indeed so important is the field of international affairs that the Prime Minister often virtually assumes a close surveillance of his foreign minister."73In brief, the prime minister is the president of the cabinet, the leader of the parliament, the main link between the King and ministers, the recognisedleader of the nation and the symbol of supreme political power. He is hard-worked and always pressed for time. He receives a number of callers on moreor less important public business, confers with individual ministers, goes through innumerable papers, supervises endless correspondence, and when parliamentis in session, spends much of almost everyday on the Treasury Bench.Position of the Prime MinisterFrom the above description of the functions and powers of the British prime minister it is crystal clear that the prime minister is the pivot of Britishadministration. His position has been variously summed up by writers. Lord Morley said, "Although in cabinet all its members stand on an equal footing,speak with one voice, and, on the rare occasions when a division is taken, are counted on the fraternal principle of one man and one vote, yet the headof the cabinet is primus inter pares, and occupies a position which so long as it lasts, is one of exceptional and peculiar authority." Ramsay Muir isnot prepared to accept Prime Minister as primus inter pares (first among equals). He is of the view that a person endowed with such a plenitude of powersas no other constitutional ruler in the world possesses, not even the President of the U.S.A., is not a mere first among equals, Harcourt describes PrimeMinister as "Inter Stellas luna minores" - a moon among lesser stars. Jennings is of the opinion that the Prime Minister is rather "a sun around whichplanets revolve."" Prof. Munro called him "the captain of the ship of the State." Prof. Laski has described him as "the pivot around which the entire governmentalmachinery revolves."The phrase primus inter pares does not rightly sum up the position of the prime minister. Mr. Churchill writes, "In any sphere of action there can be nocomparison between the positions of number one and number two, three or four. The duties and problems of all persons other than number one are quite differentand in many ways more difficult.... The loyalties which centre upon number one are enormous. If he trips he must be sustained. If he makes mistakes theymust be covered. If he sleeps, he must not be wantonly disturbed...."20 In fact the Prime Minister is the sun around which planets revolve. He is the pivotof the cabinet. Without him the ministers have no existence. He is the most important person. Nothing can take place in the government against his will.His shadow can be seen in every department of administration. He is in fact though not in law the working head of the state, "Few, if any.74positions in the world carry with them greater powers than the British Prime Ministership,"21 writes Ogg. It should not, however, be assumed that all BritishPrime Ministers have been equally powerful.The actual power of the Prime Minister varies according to his personality and the extent to which he is supported by his party. There have been prime ministerslike Pitts, Peel, Disraeli, Gladstone, Lloyd George and Churchill, who were of dominating personalities. On the other hand there have been prime ministersof mediocre personalities like North, New Castle, Liverpool and Campbell Banherman. In fact, the elections in England have become the issues of personalities.A general election is now a plebiscite between alternative personalities. The only question which the voters are asked is whether they wish to be governedby Gladstone or Disraeli, Salisbury, Balfour or Campbell Banherman, Asquith or Balfour, Lloyd George or Asquith, Baldwin or MacDonald, MacDonald or Handerson,Churchill or Attlee. John Major conservative or Neil Kiunock22 (Labour). Gladstone while referring to the election of 1857 rightly said, "It is not anelection like that of 1784, when Pitt appealed on the question whether the crown should be the slave of an oligarchic faction; nor like that of 1831, whenGrey sought a judgment on reform, nor like that of 1852, when the issue was the expiring controversy of protection. The country was to decide not uponthe Canton river, but whether it would not have Palmerston for prime minister." The result of this sort of electioneering "is necessarily to give the primeminister a national standing which no colleague can rival so long as he remains the prime minister."23 It strengthens his hands against his colleaguesand makes him the sun around which the planets revolve. However, when all is said and done, the prime minister, according to Dr. Finer, is not a Caesaror a divinity whose authority cannot be challenged. We should not forget that the office of the prime minister "is necessarily what the holder choosesto make it and what other ministers allow him to make of it,"24 because as Palmerston once remarked, "the premier's practical power and importance in hisgovernment inevitably tend to be diminished when the principal offices are filled by conspicuously energetic and able men."25Privy CouncilBefore closing this chapter we may briefly describe the composition and functions of the Privy Council. The Privy Council is the descendant of the GreatCouncil of the Norman and Angevin kings. In its present form it emerged in the fifteenth century as an offshoot of the Permanent Council (that part ofthe Curia Regis which remained after the King's75Bench and other high courts were split off from it). Thus it represents the final product of the process of division and devolution by which the functionsof advising the King and carrying on the government in his name were kept in the hands of a relatively small body. Out of the Privy Council emerged thecabinet which, as we have seen, controls the entire administration of the position and FunctionsThe Privy Council has not gone out of existence, though as an advisory body it has been supplanted by the cabinet It is still there and consists of some320 persons. Its membership consists of the Archbishops of Canterbury and York and the Bishop of London; higher judges and retired judges; many eminentpeers; a few colonial statesmen; all cabinet ministers, past and present; the Prince of Wales and Royal Dukes; and many other people of distinction inlegislature, art, science and law who have been elevated as Privy Councillors. Once made a Privy Councillor, a man normally remains such for the rest ofhis life. The Privy Councillor bears the title of Right Honourable.The Privy Council usually meets at the Buckingham Palace once in two or three weeks. Sometimes the King attends, although his presence is not essential.The quorum is three and obviously four or five Councillors are summoned of whom all are members of the cabinet. These four or five Councillors carry thework in the name of the Privy Council. The Lord President is always in attendance and presides over its meetings. As a whole the Privy Council meets onlyon ceremonial occasions, such as on the death of the sovereign to proclaim the successor to the Throne and on the occasion of the coronation of the newsovereign.Though the Privy Council has long ceased to perform advisory or deliberative functions, nevertheless, it still remains the ultimate executive authority.Its business mainly consists of adopting orders in-Council which the cabinet has already agreed upon. The Cabinet, it may be noted, does not give ordersbut only decides that orders shall be given or that the King shall be advised to act in a certain manner. To give the orders is the business of the King-in-Council.The total number of orders issued in a year is around 600, which runs considerably higher at the time of war. Many of these orders come from the departmentsfully drafted and require merely the formal approval of the council; others are sometimes in rough form and are put in shape by the drafting experts ofthe Privy Council Office.76The Privy Council also maintains certain committees. There is the 1116 non-statutory committee on the affairs of the Channel Islands, and statutory committeesexist for the Universities of Oxford and Cambridge and Scottish University. There are also the committees for scientific and industrial research. But themost important is the Judicial Committee of the Privy Council which was created by statute in 1833 and serves as the Supreme Court of Appeal in ecclesiasticalcases and in cases appealed from admiralty courts and courts from the dominions and the colonies.References1. Muir, Ramsay, How Britain is Governed, p. 85.2. Jenning, W.I., Cabinet Government, p. 53.3. Ogg, op. cit., p. 103.4. Mitchell JDB, Constitutional Law (1968....) p. 1905. Ogg, op. cit., p. 143.6. See the details under next heading.7. Muir, Ramsay,: How Britain is Governed p. 89.8. ibid.9. Keith, The British Cabinet System, p. 249.10. Robson, W.A., Justice and Administrative Law, p. 2.11. Laski, H.J., Re/lection on the Constitution, p. 96.12. Sydney Low, The Governance of England, p. 156.13. Memoirs p. 3.14. Finer, Governments of the Great European Powers, p. 14.15. Quoted by Jennings, Cabinet Government, pp. 176-177.16. Mackintosh: The British Cabinet (1968 ed) p. 428.17. Carter, Byrum, E., The Office of Prime Minister, p. 274.18. Keith, The British Cabinet System, p. 304.19. ibid, p. 305.20. Jennings, Cabinet Government, p. 183.21. Churchill, W., Their Finest Hour, p. 15.22. Ogg, English Government and Politics, p. 153. 3 April 1992 elections in UK.23. Laski, Parliamentary Government in England, p. 241.24. Jennings, Cabinet Government, p. 183.25. Ashley, E., Life and the Correspondence of Palmerston, p. 257.775 THE CIVIL SERVICE"The best minister is one who can think quickly and systematically over the varied problems put before him. His first quality is commonsense and the secondone is his capacity to judge the people."—LaskiSo far we were studying the political executive - the cabinet. Now we turn our attention to the permanent executive who form the civil servants. It needshardly be mentioned that the work of the government would never be done if there were only ministers to do it. These people cannot carry the routine tasksof collecting taxes, auditing accounts, arresting the criminals, inspecting factories and carrying mails. These tasks are carried by a number of officialsand employees who are not whit less necessary to the realisation of the purpose for which government exists and who together form the permanent executive.It is with this branch of executive that the common man mostly comes into contact with and it is through this branch that the National Government establishesits contacts with the rank and file of citizens. In this chapter we shall concern ourselves with this branch of the executive.Civil Servants Contrasted with MinistersBefore we begin to evaluate the role of civil servants in British administration, we may just for a while engage our attention to certain distinctions betweenministers and civil servants.(i) A minister is a political official, a civil servant is not The minister is always a party man who is elected on a party ticket and is associated with one or the other political party. He is selected as a ministeron account of his party affiliation and prominence and while he is in the cabinet he helps frame party policy and secure its enactment into law. Withoutparty he, as an individual, has no power, he is in office78so long as his party is in power. He carries with him the party label. As such he is a political official.On the other hand, the position of the civil servant is quite different. He is what he is because he is non-political. The Constitution debars him frommembership of the Parliament and refuses him to actively participate in party politics and he does not identify himself with a particular party. He isin office not to keep any party in power but to execute the laws and orders of the government no matter which party is in power. If a civil servant desiresto become a member of the House of Commons, there is an order-in-council dating from 1884 which asks him to resign his office as soon as he announces hiscandidature for election. To keep the civil servants politically neutral various statutes have been enacted from time to time. As long ago as 1710, a statuteforbade any post-office official to endeavour to persuade any elector to give or dissuade any elector from giving his vote for the choice of any personto sit in parliament. The prohibition was later extended to other groups. Today, the position is that no civil official can make a political speech, writea partisan tract, or edit, publish a party newspaper, canvass for a candidate or serve on a party committee. If he does so, he runs the risk of being removedfrom the service. The civil officials are, of course, entitled to vote but their political rights begin and end with casting of their votes.(ii) The Minister is an amateur, the civil servant is an expert A minister is chosen for his post by the Prime Minister not because he knows much of the subject concerning his department but because he is an importantparty man, or an active debater in Parliament, or an effective trade union organizer or is a good platform speaker, or for some other such reason. Moreover,while in office the minister devotes so much of his time to the cabinet, parliamentary, party and social activities that he can, in fact, learn littleabout his department except in certain larger aspects. He is occasionally shifted from one department to another and has brief tenure due to the politicalcharacter of his office. Sometimes, good many ministers may be men who know next to nothing about the branch of government of which they suddenly findthemselves in-charge. A former school teacher may be assigned Labour and a general merchant may be appointed Defence Minister. Sir Sydney Low writes, "Werequire some acquaintance with the technicalities of their work from the subordinate officials, but none from the responsible chiefs. A youth must passan examination in arithmetic before he can hold a second class clerkship in the Treasury but a Chancellor of the79Exchequer may be a middle aged man of the world, who has forgotten what little he ever learnt about figures at Eton or Oxford, and is innocently anxiousto know the meaning of those little dots when first confronted with the Treasury accounts worked out in decimals. A young officer will be refused his promotionto captain's rank if he cannot show some acquaintance with tactics and with military history, but a minister for war may be a man of peace - we have hadsuch who regard all soldiering with dislike and have abstained from getting to know anything about it."1 In brief, ministers are generally amateurs.On the other hand, the civil servants are experts in their subjects or are in process of becoming experts. As already said they are appointed not for theirpolitical affiliations but for the knowledge that they possess. They are even imparted requisite training in a particular subject before they are appointedto the post. They remain in office permanently and not for just four or five years. Long continuity in office makes them experts in the administrationof affairs.(iii) The tenure of the Minister is short, while that of the civil servant is long.The minister is not a permanent official. He is in office so long as his party is in power. This period may extend from four to five years. But the civilservant is a permanent servant of the crown. He remains for twenty to thirty years.2 Cabinets and parliaments come and go; but the permanent staff remainsfirmly entrenched.(iv) The political staff is small, the permanent staff is large The number of ministers who make the political staff of the British administrative departments is about a hundred, 20 being cabinet ministers. This numberis a very small fraction of the entire administrative personnel. The permanent staff is many times more numerous than the political staff. In 1832 thetotal number of national civil servants excluding labourers was 31,305. In the recent past the figure stood well above 3,00,000 exclusive of over 1,25,000labourers and other employees who are not permanent civil servants in the narrower sense of the anisation of the civil service in EnglandAll the employees of the British Civil Service have been classified into five categories in accordance with their status and dignity of office. These categoriesare:(i) The Administrative classIt is the "pivotal and directing" class of the whole civil service. This class includes high civil service officers like permanent Secretary,80Deputy Secretary, Under Secretary, Assistant Secretary, Principal and Assistant Principal. Upon this class rests the responsibilities for formulating policyand for controlling and directing departments. These officers are "responsible for transmitting the impulse from their political chief, from the statutesand declaration of policy, through the rest of the service and out of the public."3 In the words of Jennings the function of the administrative class is"to advise, to warn, to draft memoranda and speech in which the Government's policy is expressed and explained, to make the consequential decisions flowfrom a decision on policy, to draw attention to difficulties which are arising or are likely to arise through the execution of policy, and generally tosee that the process of government is carried on in conformity with the policy laid down."4The members of the administrative class are recruited through a civil service competitive examination between the age group of 201/2 and 24. New recruitsserve a two-year probationary period and are promoted on the basis of merit and performance.(ii) The Executive classThe second category of the British civil service is the class of executive officers. They do the work of the supply and accounting departments and of otherexecutive or specialized branches of the service. In brief, these officers carry preliminary investigations of the problems before the department, collectdata, arrange and classify it, and make observations thereto. They may also exercise discretion in matters of minor importance.These officers are recruited between the age of 17V2 and 19 from among the men and women who have completed secondary education, and pass the competitiveexamination. The members of this class can also be promoted to the Administrative class if they show resourcefulness, judgment and initiative.(v) The Clerical classThe third category of British civil service is that of the clerical class officers. They are recruited at the age of 16 to 171/2 through a competitive examinationof the standard of the intermediate stage of secondary course. This class is sub-divided into (a) the higher clerical class, and (b) the clerical classproper. They carry the routine business of the Government like the keeping of official records, preparation of accounts and facts, summarising and collectingdocuments of senior officers. They have no initiative or discretion.81(iv) The Writing Assistant classThis class is recruited generally from among the women and engaged in copying, filing, addressing, counting, and other simple mechanical work. The Assistantsare recruited through an examination held twice a year.(v) The Typists and Shorthand Typists classThis class, as is clear, consists of the typists and shorthand typists. This class is exclusively recruited from among the women and girls.In addition to these five classes in the main hierarchy of civil service there are a number of technical and scientific personnel including doctors, architects,engineers and scientific research staff. They are selected not through any written examination but through the method of competitive interviews.Role of civil service in EnglandDuring the last few years the civil service has assumed great prominence in the British administration. As we have seen earlier, the Minister is an amateur,being apolitical and non-permanent person who comes to head the Department without any expert knowledge of its working. The civil servant is an expertprofessional, non-political and permanent person who has spent several years in the Department and gained rich experience of its working. Naturally undersuch conditions the Minister has to rely on his Secretaries (civil servants) for information about matters of which he knows little or nothing. The Secretariesput forward their own suggestions, arguments and advice; and the minister according to Ramsay Muir "except a self-important or a man of a quite exceptionalgroup power and courage he will "in ninety-nine cases out of a hundred simply accept their views and sign on the dotted line."5 So much have the ministerscome to rely on their Secretaries that one writer was prompted to remark that "the minister is a tool in the hands of the permanent officials."The role of civil servants in the actual administration of England can be explained by enumerating the various functions which they perform. The followingmain points will clearly indicate the role of the British Civil Service.(i) Administrative roleFirstly, the civil servants play an important role in the administrative sphere of the government. Most of the general policies which are issued by thecabinet, are in reality chaikcd out in detail by the efforts and intelligence of the civil servants. Being in office for long years, the civil82servants acquire great knowledge and experience and they are consequently able to frame the best administrative policies of the British Government. Theysupply the data and facts to the minister. According to Laski, an important function of the administrative class is to collect all the material so thata correct decision may be taken. Moreover, once the policy has been decided, it is left to the civil servants to execute it. The Minister has no time tolook to the daily routine of the department. He devotes so much of his time to the Cabinet, parliamentary party, social and other activities that he canin fact learn little about the department except on very broad outlines. Frequently he is shifted from one department to another. He is a layman. The civilservant being an expert and fully conversant with the details and their implications accordingly tends to shape the day-to-day working of the department.According to Ramsay Muir.... "The power of bureaucracy is enormously strong. Under the cloak of ministerial responsibilities it has thriven and grown."6(ii) Legislative roleIt is perhaps in the field of legislation that the role of the civil servants is supreme. The Bills introduced in the parliament are first framed and givenshape by the civil servants. "Only an expert can fit the new policy into the old administration; and the permanent official may often have to suggest thePolitical Minister what can and what cannot be done as well as how to do and what can be done. Thus new policy is very often the actual product, and stillmore often the result of corrections and suggestions of the permanent civil servants."7 What the minister does is to lay down the broad principles forframing the rules and leave it to the civil servants to prepare the details. The great role of the civil servants in the legislative sphere can be furtherproved by the fact that most of the rules and regulations concerning the Departments are issued by them under the signature of the minister. This is whatis called delegated legislation. It is true that the powers of delegated legislation are exercised in the name of the Minister but, in fact, they are actuallyexercised by the civil servants.(iii) Judicial roleThe executive goes a step further by establishing administrative tribunals to decide the disputes arising under administrative rules and orders. These courtsare often manned by experienced administrators. The procedure of these tribunals is very different from that of the regular courts The aggrieved may notappear in person, be represented83by counsel, or produce evidence; and if the case goes against him, he sometimes has no opportunity to appeal.It thus appears that the powers of administrative legislation and administrative justice have made the civil servants powerful, arbitrary and free fromrestraint because both the Parliament and Courts of Law are ousted from the exercise of their respective authority of legislation and dispensing justice.(iv) Financial roleFourthly, it is the civil servants who prepare the Annual Financial Statement of the British Government. The taxes to be levied and the expenditure to bemet are suggested and drafted by the Secretaries of the Department of the Exchequer. The Secretaries being experts in financial matters prevail upon theChancellor of the Exchequer who may have little knowledge of maintaining accounts and calculating mathematically the revenue and expenditure of the Government.In addition to what has been said above, the civil servants give a lot of help to the ministers in running the departments and disposing of the day to daywork of the government. The civil servants formulate answers to the questions put to the ministers in the parliament and supply them the information andmaterial necessary to decide a particular case. Not only that, the civil servants also give their comments and solutions which are generally accepted bythe ministers. Sometimes, the speeches to be read by the ministers are prepared by the civil servants. Thus the civil servants exert a vast influence uponthe minds of ministers and help them in tackling the various problems concerning the government. They are the reservoir of knowledge and experience andenable the government to maintain efficiency of administration. When the minister is installed, he very often knows nothing about the business of his department.He has his policy and ideas but they are often confused and vague. The civil servants of the upper rank give shape and substance to the vague aspirationsand the misty ideas of the ministers. Thus the vital importance of the civil servants in a democratic set up cannot be under-estimated.Has the civil servant become a bureaucrat?On account of the pivotal position which the permanent civil servants have come to occupy in the actual administration of England and of the influence theyexercise in shaping its course Ramsay Mutrftas4aid-the charge of "bureaucracy" at the doors of the British Government and maintained that in England, "bureaucracythrives under the cloak of ministerial responsibility." He writes, "In the nature of things the84minister is at the mercy of his subordinates. The influence of the permanent officials upon the minister is no less than controlling. Though they are notsupposed to have any share in directing, 'the affairs of State, they do, in fact, as we have seen above, have a very important share."But is the charge of bureaucracy laid against the British Government correct? According to Laski, "Bureaucracy is the term usually applied to a system ofgovernment, the control of which is so completely in the hands of the officials that their power jeopardizes the liberties of ordinary citizens."8 Thecivil servants are not the masters of the situations. Of course, the Minister relies for information on the civil servants, seeks their advice and sometimesguidance also, but no minister ever acknowledges any obligation to accept and act upon the views of his subordinates. "It is he, not they, who will haveto justify to the cabinet whatever decisions are made, and also bear responsibility for them on the floor of an inquiring, and perhaps censorship, Houseof Commons, and the last thing that he would surrender would be the right to make the decision himself."9 Lowell in his book The Government of Englandwrites that in England the danger of bureaucracy has disappeared through the particular type of relationship between amateurs and professionals involvedin the clear distinction of political from non-political agents. It may be accepted that the ministers are work-ridden and arc not experts, but it doesnot mean that they are mere tools in the hands of the civil servants. The position of the minister visa-vis his secretaries depends very much on his ownpersonality. If he is man of strong will, he can keep his civil servants under his control. The history of British administration shows that if a ministerhas firmly decided to do a particular thing and if he is a man of determined will, he has succeeded in keeping his officers under his control. Of course,some ministers are not interested having no particular policies of their own and want to earn only fame and money as a minister. Such ministers definitelybecome a tool in the hands of their civil servants. But such ministers also have their own importance in the cabinet. If all the ministers of the cabinetare equally intelligent and strong willed it would be difficult for the cabinet to function efficiently. Consequently, the prime minister has to find outnot only ministers who have ambitious plans but also such ministers who may be contented with their secondary position. We should not forget the fact thatthe role of the civil servants is mostly advisory. The ultimate decision rests with the minister. Even where the civil servants decide, and if any citizenfeels85that injustice has been done to him, he can make an appeal to the minister or draw the attention of the government through the representative from his constituencyin the parliament. The civil servants cannot afford to be arrogant. They know the precarious position of their political chief and, therefore, do not makemistakes. They are controlled by parliament and are answerable to their political chief. Undeniably, they play a role whose importance it would be difficultto minimise, but they do not dominate the scene. The civil service in England is not irresponsible. The civil service provides the element of efficiencyin British administration while the political executive provides the element of democracy and thus the British administration is both democratic and efficient.Hence Ramsay Muir correctly remarks "it would be wholly untrue to say that our system is a pure uncontrolled bureaucracy."10Should the Minister be an expert?Sometimes, it has been suggested that only those persons should be appointed ministers who have adequate professional experience related to the work theywill be expected to perform. In the absence of such experience and expert knowledge they have to depend upon their subordinates and simply endorse theirdecisions. Sidney Low remarks, "A youth must pass an examination in arithmetic before he can hold a second class clerkship in the Treasury; but a Chancellorof the Exchequer may be a middle-aged man of the world, who has forgotten what little he ever learnt about figures at Eton or Oxford, and is innocentlyanxious to know the meaning of 'these little dots' when first confronted with Treasury accounts worked out in decimals." It is argued that in France andother continental states, it has not been uncommon to/ put military men in-charge of the War Ministry. Similarly, in the United States also there is agrowing tendency to place on the head of at least a few of the executive departments, e.g., Agriculture and Labour, upon with professional experience relatedto the work which they will be expected to supervise. 'Of course, it is clear that the departmental head, who is experienced in the work to be carried on under his direction, will look after his work in a betterway. But this does not mean that all the ministers should be expected to qualify as experts or technicians. A number of activities are performed simultaneouslyin the departments each requiring a high order of technical proficiency. It is vain to hope that the Minister-in-Charge or any other man can be a masterof all. Moreover, the minister need not be a master of any because his business is not to do the work of86the department but to see that the work is properly carried out by the ff To quote Ramsay MacDonald. "The cabinet is not a collection of experts on anyone subject. Were that so, its corporate responsibility for government would be unreal. It is a committee of men of good commonsense and intelligence,of business ability, of practical capacity, in touch with public opinion, on the one hand, and by reason of that, carrying out a certain policy, and, onthe other, it is the controller of a staff of experts who know the details of departmental work.... The cabinet is the bridge linking up the people withthe expert, joining principle to practice. Its function is to transform the messages sent along the sensory nerves into commands sent through the motornerves. It does not keep the departments going; it keeps them going in certain directions."11 According to Laski, "The best minister is one who can thinkquickly and systematically over the varied problems put before him. His first quality is commonsense and the second one is his capacity to judge the people."Moreover, there are strong reasons why the minister should be a layman. A layman sees the department as a whole and in its relation to other departments.His vision is wide and his attitude compromising. The vision of an expert is generally narrow and his attitude uncompromising. When an expert supervisesthe work of an expert, there is likely to be friction and disagreement because experts easily do not come to an agreement. In order to avoid the dangerof friction it is necessary "to have in administration a proper combination of experts and men of world."12 Again, an amateur serves as "the intermediarybetween the department and the House of Commons, keeping them in touch with public opinion and the other informed on administrative needs and problems."13A minister must have the interests of the whole public in view. A minister for Agriculture must serve not only the agriculturists but also the miners.These larger interests would be less adopted to serve if he has only a departmental point of view. Therefore, it is always better to have a layman as thehead of the department so that he may take not a departmental but a whole view of administration. "We send men into the Treasury", writes Laski, "not becausethey are trained economists; so also in the Ministry of Agriculture or the Board of Education. They are valuable as administrators less because they haveexpert knowledge of technical subject-matter but because we believe, on the evidence rightly, that their training will endow them with qualities of judgmentand initiative without which no government can be successfully run. But these are exactly the qualities a politician must have if he is to be successful,normally, in the struggle for place."1487In the end, it may also be asserted that a politician who becomes a minister, may not altogether be a layman. Before becoming a minister, he may have givenproof of his ability and intelligence in the parliament. As a member of the parliament, he may have been well-acquainted with those facts and ideas regardingwhich he is to take a decision as a minister. He may have been well experienced in administrative matters as well. In fact the qualities which make a mana successful politician also go to make him a successful administrator.References1. Low, Sydney, Governance of England, pp. 201-202.2. In Great Britain an Official holds office during good behaviour, or until he reaches the age of sixty. At the option of the official this age limit maybe extended to sixty-five.3. Finer, The Theory and Practice of Modern Government, p. 767.4. Jennings, Cabinet Government, p. 116.5. Ramsay Muir : How Britain is governed p. 43.6. ibid p. 51.7. Burns, CD., Whitehall, p. 69.8. Laski, H.J., Parliamentary Government in England, p. 285.9. Ogg, op. cit., p. 217.10. Ramsay Muir; op. cit., p. 44.11. MacDonald, Socialism and Government, pp. 34-35.12. Lowell, A.L., The Government of England, vol. I, p. 173.13. Ogg, op. cit., p. 215.14. Laski, Parliamentary Government in England, p. 293.886 THE BRITISH PARLIAMENT"The British parliament can do everything but make woman a man and man a woman"—De LolmeThe British Parliament has been called the "mother of Parliaments" whose progeny has spread into every civilized country. It is the oldest, largest, mostpowerful and most interesting of modern legislatures. Its influence has been worldwide. Now we turn our attention to this august assembly of British intellectuals,statesmen and magnates.How the Parliament originated and developed into its present form has been explained in the first chapter. We need not repeat the whole history of its growth,but need draw the attention to certain important facts of its growth which has been more or less spontaneous, slow and sometimes haphazard. It took eightcenturies to transform parliament into a governing body elected on the basis of adult suffrage. All these eight centuries had been a period of strugglestarting with King John who was made to sign on June 15,1215 the Great Charter, Magna Carta. Thereafter, the parliament continued to struggle for substantialcontrol of finance, legislation and administration. The Revolution of 1688 established the sovereignty of Parliament by reducing monarchy to a subservientposition. With the first Reform Act of 1832, began the movement of making the House of Commons a popular chamber by extending suffrage. During the period1832-1928 there were passed several electoral Reform Acts which gradually granted every male and female of twenty-one (now reduced to eighteen) the rightto vote, thus completing the process of democratization of Parliament.1Sovereignty of ParliamentIf we study the history of the growth of parliament one thing would become clear that in its struggle with the Kings the parliament finally89emerged as the supreme authority over the country's affairs and ripened its strength by the eighteenth century. There are three important landmarks in thegrowth of the sovereignty of parliament. The first was when parliament resolved in December 1648 to bring King Charles I to trial who was subsequentlyexecuted in 1649. It was the same parliament which abolished monarchy by an Act and declared England to be a Commonwealth. In 1660, the parliament restoredCharles II to the throne on the condition of his co-operation with it. The events of bringing Charles I to trial, abolishing monarchy and declaring Englanda Commonwealth, and then restoring monarchy clearly illustrate the sovereignty of Parliament.The second landmark is the Glorious Revolution of 1688 when James II was made to abdicate as he failed to co-operate with parliament. It was the same parliamentwhich invited William and Mary to the throne. Then in 1701 the parliament passed the Act of Settlement which determined the order of the succession tothe throne. The Act laid down not only who should reign next but also on what conditions he should reign.The third landmark is 1785 when younger Pitt became the Prime Minister and the King ceased to choose and dismiss his ministers. The cabinet system now becamefinally fixed and henceforth ministers came to be chosen and dismissed by Parliament.These three landmarks in the history of the British Parliament illustrate that the parliament is supreme and unlimited. It has gained substantial controlover finance, legislation and administration. It can alter or rescind any charter, agreement or statute, it can cause any official of the government tobe dismissed and any judicial decision to be made of no effect. It can bend the constitution in any direction it likes. It can levy any taxes and put anend to any usage and overturn any rule of common law. The power and jurisdiction of parliament, says Sir Edward Coke, "is so transcendent and absoluteas it cannot be confined either for persons or causes within any bounds." Blackstone, J.A.R. Marriot and De Tocqueville also hold the same view. Accordingto Blackstone, "the parliament has the supreme and unlimited power to make all kinds of laws, to sanction them, to elaborate them and to interpret them.It can do all those acts which are possible." According to J.A.R. Marriot, "From every point of view, the British Parliament is the most peculiar and powerfulinstitution. It is the oldest. Its jurisdiction is the widest and its powers are unlimited." According to De Tocqueville, "The British Parliament has fullpowers to amend the constitution. It is90a legislative assembly and at the same time a constituent assembly too." De Lolme said that, "Parliament can do everything but make woman a man and mana woman."Dicey's interpretationDicey has given an exhaustive description of the doctrine of the Sovereignty of Parliament. He writes, "The sovereignty of parliament is from a legal pointof view the dominant characteristic of our political institutions.... It means neither more nor less than this, namely, that parliament thus defined has,under the English Constitution, the right to make and unmake any law whatever, and further no person or body is recognised by the law of England as havinga right to override and set aside the legislation of parliament."2 Thus, according to Dicey, the following are the main features of the doctrine of theSovereignty of Parliament:(i) That there is no law which the parliament cannot make,(ii) That there is no law which the Parliament cannot unmake,(iii) That there is no authority recognised by the law of England which can set aside the law of parliament and declare such a law void,(iv) That there is under the British Constitution no marked distinction between constitutional laws and ordinary laws,(v) That the Sovereignty of Parliament extends to every part of the King's dominions.In brief, the parliament can make any law it pleases. Every Act of the parliament is constitutional. The courts have no power to declare any parliamentaryAct unconstitutional. If a measure is contrary to the constitution as it has hitherto existed, the constitution simply becomes something different in thatregard. No one can allege that a particular Act of parliament is ultra vires. The word of parliament is law, however much it may cut across existing constitutionalarrangements. The courts will enforce whatever law has been enacted by the parliament. The only way of getting rid of it is to procure its repeal by anotherparliament Act. Thus, the American practice of judicial review has not gained any foothold in England which still holds to the principle that whateverparliament legislates is law and remains such until repealed by parliament itself. The sovereignty of the parliament is absolute in its negative and positiveaspects.To illustrate the Sovereignty of Parliament, Dicey quoted the Act of Settlement, Act of Union, Septennial Act and Acts of Indemnity. The Act of Settlement,1791, made fundamental changes in the law of91succession to the throne and debarred certain people from the throne who could succeed to it under certain conditions. The Septennial Act, 1716 extendedthe life of parliament from three to seven years. This was a case of an existing parliament extending its own life by four years. In 1936 the parliamentpassed the Abdication Act and laid down that the King cannot marry against its will. By the Indemnity Acts passed from time to time the parliament legalisedthe Acts which were illegal at the time of commission.Limitations on Parliamentary SovereigntyThe foregoing remarks about the Sovereignty of Parliament may lead the students to wonder what protection the individual citizen in England has againstinfringement of his personal liberties and what is there to prevent parliament from passing arbitrary acts? The age of royal despotism is gone but whatabout this new despotism of an omnipotent parliament? Certainly the parliament has legal power to make or unmake any law but a legal truth may be a politicaluntruth. Jennings rightly pointed out. "It cannot be said that it is dictatorship. At worst it is dictatorship for a term of years... but dictators whoat short intervals have to beg the people for their votes .... Parliament cannot govern. It can do no more than criticise."3 There are many moral and politicalchecks which limit the Sovereignty of parliament.(i) Moral Limitations: The first check is a moral check. The parliament will not make any act which violates the moral conscience of die British as people."If a legislature decided," as Jennings writes, "that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; thatlegislature must go mad before they could pass such a law and subjects be idiotic before they could submit to it.'4 In fact, no legislature can even thinkof such a legislation. Democracy is a government by consent and no democratic government should act against the moral will of the people. If it does, thepeople will take revenge.It is true, as Dicey says, that law is law whether it is moral or not. It is law because it has been enacted by the parliament. Moreover, the supremacyof parliament is not mentioned in any constitutional document. It is the mere expression of custom and carries with it the acquiescence of the people whosewill is supreme and sovereign. We should not talk of legal fiction but of political truth and the political truth is that the British Parliament is boundin the exercise of its supremacy by the customs and moral codes of the people.92(ii) Rule of Law: Another significant limitation on the legal supremacy of Parliament is the Rule of Law. We have already explained the concept of Ruleof Law. The Rule of Law means that no authority can act arbitrarily and deprive the British citizens of their fundamental liberties. The Rule of Law isclosely related to the Supremacy of Parliament. To quote Barker, "Sovereignty of Parliament and Rule of Law are not merely parallel; they are also interconnected,and mutually inter-dependent. On the one hand, the judges uphold and sustain the Sovereignty of Parliament which is the only maker of law that they recognise(except in so far as law is made, in the form of 'case law', by their own decision); on the other hand, parliament upholds and sustains the rule of lawand the authority of the judges, who are the only interpreters of the law made by parliament and of the rest of the law of the land."5(iii) Public Opinion: Dicey himself recognised the purely legal aspect of the doctrine of the Sovereignty of Parliament and pointed out that this legalconcept is operated within two limits, external and internal. The parliament will not pass a law which will be opposed by the people and so is restrainedexternally from doing those acts which will lead to mass opposition. Laski confirms "No parliament should dare to disfranchise the Roman Catholics or toprohibit the existence of Trade Unions in Great Britain.(iv) Statute of Westminster: The Statute of Westminster, 1931 has also limited the Sovereignty of Parliament, which inter alia provides that no Act of BritishParliament passed after 1931 is to extend to a Dominion unless the Act expressly affirms that the Dominion concerned has requested and assented to it.Every Dominion is completely independent to pass any law even though it may be against a law of England.(v) International Law: Then there is the International Law which has limited the jurisdiction of the parliament. In West Rand Gold Mining Coy. vs. The King,it was decided that International Law is a part of the municipal law of the land and, therefore, the parliament cannot enact any law repugnant to the principlesand practices of International Law.(vi) Judge made law: Judicial interpretations and judgments of the Courts become precedents in due course and begin to be followed by the judges of thecoming generations. Ultimately such decisions known as judge made laws assume the shape of laws. Such laws are not changeable by the Parliament.93(vii) Delegated Legislation is another inroad on the Sovereignty of Parliament. Parliament being overburdened with work and also holding sessions for lessthan half a year permits other bodies to share in law-making. The orders in Council issued to meet emergencies during the absence of Parliament have theforce of laws.The fact, therefore, is that although at first glance the parliament may seem to enjoy unlimited powers in law, but in practice it is bound by tradition,International law, Statute of Westminster and public opinion. Ultimately, the legal sovereign derives its authority from the political sovereign, the people.Thus the ultimate sovereignty in England lies with the people. Thus in to days' practical politics parliamentary sovereignty is a political myth. It remainsonly a representative avenue of debate rather than controller of the governance of country.The House of Commons (HOC)The House of Commons, says Sidney Low, "is the most remarkable public meeting in the world. Its venerable antiquity, its inspiring history, its splendidtraditions, its youthful spirit and energy, the unrivaled influence it has exercised as the model of Parliament, its inseparable with the vitality of Englishnation, its place as the visible centre and the working motor of our constitution, all this gives it a unique place."6 Of the two houses of the Parliament,the House of Commons is indeed the most important and powerful chamber. "When," once wrote Spencer Walpole, "a minister consults parliament, he consultsthe House of Commons; when the Queen dissolves parliament, she dissolves the House of Commons. A new parliament is simply a new House of Commons."7 So,we shall begin our study of the parliament with the House of Commons not only because of its primacy but also because the position, functions and problemsof the second chamber, the House of Lords, cannot be properly understood until we understand the nature of the House of anisationThe House of Commons is purely an elective body and it has always been so. In earlier times, it included the spokesmen of the land-holders, merchants andguild men and so it continued until hardly more than a hundred years ago. Then in the course of the nineteenth and twentieth centuries parliamentary suffragewas by stages extended to the general mass of the people and the House of Commons became a popular chamber in the real sense of the term. The electoratebecame numerous94and heterogeneous and the functional groups were replaced by territorial groups.The membership of the House is raised after every ten yearly census. Thus it was raised from 630 to 635 in 1974 and then to 650 in 1983. The House of Commonstill 1992 election consisted of 650 members8—523 from England, 38 from Wales, 72 from Scotland and 17 from Northern Ireland. In April 1992 elections theHouse of Commons consisted of 651 members. In May 1997 elections the House consisted of 659 members. They are now elected from single-member constituenciesarranged on a geographical basis. The average number of voters in a constituency is 75000. The constituencies are in all casv counties, boroughs or sub-divisionsthereof. The constituencies do not cut across county or borough boundaries. They are commonly contained wholly within a single county or borough. Everyconstituency has a distinct name, e.g., the borough of Bradford, the Central Division of Portsmouth. The delimitation of constituencies takes place uponeach general election. There are as many single membered Constituencies as there are seats in the House of Commons. Every man and woman of the age of 18or above is now entitled to vote. Minors, criminals, idiots, aliens, bankrupts and lunatics are excluded from suffrage. All British subjects of eithersex who are of age are eligible for election, provided they are not minors and lunatics, bankrupts and criminals. Clergymen of the three historic churches,peers of England, Scotland and Wales or persons holding contracts from the government and holders of office under the Crown are debarred from seeking election.In short every person, man or woman, who is of eighteen years of age and is not otherwise disqualified, may cast a vote and seek election after attainingage of 21. He can contest from any constituency.We need not discuss how the election campaign is carried in England but need only point out some of its significant features. The election fury lasts hardlya fortnight or so; nominations are made on the eighth day after the date of the royal proclamation summoning a new parliament and polling is held on theninth day after the nomination. Polling takes place throughout England on the same day and is finished in one day. The parliamentary laws set a limit onlegal campaign expenditures which was fixed at ? 450 plus two pence per registered voter in county constituencies and one and a half pence per registeredvote in borough ones. This limit is subject to change from time to time. All campaigning expenditures must be made through an authorized agent of the candidate.After the election is over a sworn statement of all disbursement must be rendered.95Tenure of the HouseThe life of the House of Commons is five years unless sooner dissolved by the King. During emergency, its life may also be extended. The House of Commonselected in 1910 continued to function till 1918; and likewise the one elected in 1935 pulled on till 1945. Under a rule dating from 1623 a member cannotresign his seat as, according to the ancient theory, service in the House of Commons is regarded as not a right but duty. If a member wants to resign,there is a roundabout way which consists in procuring appointment to some public office. Though there are many such offices but the one usually soughtfor the purpose is the Stewardship of His Majesty's Three Children, Hundreds of Stoke, Des borough and Burnham. The member who wishes to resign his seatapplies to the Chancellor of the Exchequer for this office and his request is usually granted. The appointment to the post of Stewardship results automaticallyin the vacating of the seat in the House of Commons, because it is a paid office under the Crown. The member after getting the appointment resigns theoffice of Stewardship.Ramsay Muir has at great length discussed the existing method of election and criticised it for its defects. He concludes that the existing method is inthe highest degree, unjust, unsatisfactory and dangerous. It disfranchises a large majority of electors, encourages and compels a sort of dishonesty inboth the elector and the candidate, distorts the national verdict and produces extravagantly unjust results. Men of distinction who could be most suitablefor parliamentary work are kept out. However, without going into the merits of these defects and evaluating the British election system it need only besaid that it is too much to ask of an electoral system that gives universal satisfaction.The SpeakerAfter the, general election is over the new House of Commons meets as soon as possible - the interval between the election and the assembling of the newparliament hardly exceeding two or two and a half weeks. The first task which the new House of Commons does is to elect the Speaker. Now we shall studythe institution of Speaker ship in England.The institution of Speaker ship rose very early in English history when the House of Commons was merely a petitioning body of recognised spokesmen. In thosedays (it is difficult to give any precise date) the leader of those spokesmen used to carry to the King the wishes of the House. He alone had the rightto speak for his fellow members and hence his name, Speaker. That function of the Speaker is now obsolete, though he still remains the official spokesmanof the House.96The first Speaker known to have been chosen as such was Sir Thomas de Hungerford, elected in 1377.In earlier days, the Speaker was appointed by the King and long after the office became nominally elective the usage was for the sovereign to "name a discreetand learned man" whom the House proceeded to elect. Today the speaker is not named by the King, but the choice of the House is still subject to approvalby the Crown though the approval is merely formal. The Speaker is elected at the beginning of each parliament by and from among the members of the House.If the Speaker of the outgoing parliament is still a member of the House and is willing to be re-elected, he is usually re-elected. A change of party situationin the House since he was originally elected makes no difference. The election of the speaker is unanimous. His constituency is not contested by any partywhen general election takes place. Only on two occasions the Labour Party put up candidates against the speaker but they suffered crushing defeat. Thisis an eye opener to the parties that a convention is not to be flouted. So it is said, "Once a Speaker always a Speaker." If a new man is to be found,the selection is usually made by the Prime Minister after making certain that the selection will be acceptable to at least the government majority in theHouse. The opposition does not by convention oppose the nominee of the government who is unanimously elected by the House. For instance in 1945, when theLabour Party came into power, it did not oppose the reelection of Colonel Clifton Brown, who had been the conservative nominee in 1943. Hence the endeavouris to elect the Speaker unanimously and to secure general respect for him. The speaker receives handsome salary of ? 40340 a year and is provided freeresidence inside the Westminster Palace. John Wakeham is the present speaker.Powers and Functions of the SpeakerThe Speaker is the presiding officer of the House of Commons and as such his functions are many and arduous. We shall consider his functions as follows:(i) To defend the House against itself: The chief function of the Speaker is to defend the House against itself. He presides over all the meetings of theHouse except when it sits as a committee of the whole. He recognises the members and as such decides who shall have the floor first. The members addresstheir speeches and remarks to the chair. He sees to it that the proceedings of the House are conducted with decorum. He has wide powers to check disorder,irrelevant speech and97un parliamentary language and behaviour. It is a rule that when the Speaker stands, a member must not remain on his feet. If the Speaker finds signs ofdisorder he says a few words by way of admonition or appeal and the passion of members are cooled down. In case of serious disorderly behaviour by a member—avery rare case the Speaker may ask him to withdraw from the chamber. If he does not withdraw the Speaker will "Name" the member which means suspensionfrom attending the future meetings. The Speaker may even adjourn the House if disorder persists. There is a remote possibility of such disorder. ComparingBritish speaker with President of French Chamber of Deputies Morrisoh remarked "....The President sat in his place ringing the bell vigorously and at length.It almost seemed that the louder he rang the bell and the longer he rang it the worse the disorder became. I could not help thinking with some Britishparliamentary pride of Mr. Speaker in the House of Commons."9(ii) Interpretation of rules: The Speaker interprets and decides the law which regulates the procedure of speech of all members in the House of Commons.He sees that the debate centres on the main issues before the House and members do not indulge in irrelevance. He gives his rulings on the rules of theHouse. His rulings are final; "the chair, like the Pope," humorously replied Speaker Lowther when asked how errors that he made could be rectified, "isinfallible." Of course, the Speaker shall make his rulings in such a fashion that the members will have complete confidence that they represent not theSpeaker's own will imposed upon the House but rather the will of the House itself as embodied in its rules and precedents.(iii) Announcement of results etc: The Speaker puts questions and declares results of actual voting which takes place on various legislative measures introducedin the House of Commons. He can prevent the putting of the question to a vote when moved by a member of the majority until he is personally satisfied thatthe minority has been given due opportunity to debate its views. He also decides whether to admit or rule out amendments. He has also the power of decisionon the admissibility of question.(iv) Certification of Money Bill: He is empowered to certify that a bill is a money bill. This power was given to him by the Act of 1911. Money bills canbe introduced only in the House of Commons.(v) Allocation of Bills and appointment of Chairman of Committees: He decides how Bills are to be allocated between the various standing committees. Healso appoints the chairmen of standing committees, whom he chooses from the panel of the chairmen.98(vi) Casting Vote: He is authorised to give his casting vote in case the votes of the House are equally divided. But he tries to give his casting vote insuch a way that it maintains the status quo, upholds the established precedents and previous decisions of the House and avoids making himself personallyresponsible for bringing about any change. In fact he maintains an attitude of neutrality and impartiality both in and outside the House of Commons.(vii) Power of Kangaroo Closure: Since it is not possible for the House to discuss all the Bills clause wise because of very little time at its disposal,consequently when the pressure of business is very much excessive, the Speaker is empowered to select from among the many Bills introduced and amendmentstabled, the most important ones for discussion and put them before the House to speed up legislation. This selection of important Bills by the Speakeris called the method of Kangaroo-closure in England.10(viii) Protection of Privileges: The Speaker protects the privileges of the House from encroachments. When ministers tend to encroach upon the privilegesof members, or refuse to answer questions or do not give sufficient information, it is to Mr. Speaker that the members appeal to safeguard their privileges.He protects the House against contempt. Thus the Speaker is the custodian of the privileges of the House and is the guardian of its dignity.(ix) Special Sessions: He is authorised to summon a special session of the House of Commons if some crisis occurs when Parliament is not in session. Hecan convene the session on the request of the Prime Minister, the leader of the opposition or a specified number of members.(x) Representative of the House: The Speaker is the only constitutionally recognised representative of the Commons. In this capacity he issues a numberof warrants in its name. He is the head of the Speaker's Department of the House of Commons. He executes its orders and decisions. The members of the Househave access to the King only through the Speaker. In the name of the Commons he conveys thanks. He indeed speaks for the House and not to it. In the wordsof Morrison, "The Speaker is also the ceremonial head of the House. He is in fact a member of parliament. He is available to members who seek advice orwho are anxious to remedy what they believe to be a grievance."11 Whenever any member dies or resigns his seat from the House it is the Speaker who declareshis seat vacant and issues an order for holding bye-election to fill that seat99In all of these activities the Speaker refrains scrupulously from any display of personal sympathies or partisan feelings. He is an impartial arbiter inthe proceedings of the House. He holds members sitting on both the Treasury and opposition benches in equal respect. According to Buirs, it is the functionof the Speaker to protect the rights of the members of the House. He acts impartially like a judge of the Supreme Court. As Lowell says, "He is not a leaderbut an umpire." From the moment he takes the chair, he ceases to be a party man. He discards his party colours and attends no more party meetings. Likean umpire he is to see that game of politics is played according to rules and nobody plays foul. He maintains an attitude of neutrality in politics andthis neutrality is not a fiction but a reality, as is shown by the fact that the Speaker is never opposed for re-election in his own constituency. "Theendeavour of 150 years," writes Dr. Finer, "has been to make the Speaker the objective embodiment of the rules and laws of the Commons, purgating him fromthe last milligram of partisanship."12 In this regard he stands in sharp contrast to the American Speaker who is a party man in the House as well as parison with the American Speaker: The following points may be noted:(i) The Speaker of the American House of Representatives is a party man. He belongs to the majority party in the House. The British Speaker, on the otherhand, is a non-partyman. After his election to the chair he severs all his relationship from his party and acts impartially.(ii) The American Speaker openly favours his party in the House of Representatives. He is guided by his party interests. On the other hand, the BritishSpeaker is an impartial person. He is not related to any party. He speaks the least after his election as the speaker.(iii) The British Speaker does not take part in the debates within the House, nor does he cast his vote. He only exercises a casting vote in case of tieand that too according to the established precedents and rules of the House. On the other hand, the American Speaker takes part in the debates, casts hisvote and exercises his casting vote not impartially but as dictated by the interests of his party.(iv) The decision of the British Speaker is final. There is no appeal against it. But the decision of the American Speaker is not final. An appeal againsthis decision can be made to the House. The House can reverse his decision.(v) The office of the British Speaker is not contested. The Speaker is re-elected. "Once a speaker, always a speaker" is the famous maxim100in U.K. In general elections too, the opposition does not put up a candidate against him. In America, the office of the Speaker is contested. Both the partiesput up their candidates. There is no question of his being elected unopposed. A party victorious at polls is apt to get elected its own man as the Speaker.(vi) The American Speaker does not enjoy the prestige and honour which a British Speaker has, since he is a party man.(vii) The American Speaker does not have the power to decide as to whether a Bill is a Money Bill or not. The Parliament Act of 1911 has given such a powerto the British Speaker.(viii) The British Speaker possesses the full disciplinary authority over the members of the House. As such he can name a member for any number of days.The American Speaker cannot expel a member who is rowdy and does not obey the chair. The House can take final disciplinary action against a recalcitrantmember.(ix) The British Speaker can recognise the member, i.e., he can ask any of the aspirant speakers to speak. The American Speaker was deprived of this powerin the 1910-11 revolt against him. Now, this is the privilege of the House itself.(x) The British Speaker's authority is final regarding the interpretation of the rules of the House, but in U.S.A. final authority in this matter restswith the House itself.(xi) In U.K. leadership of the House vests with the Prime Minister whereas in USA the Speaker leads the House.(xii) The British Speaker appoints Chairmen of Standing Committees whereas the Committees are constituted by the selection committee. The American Speakerprior to 1910-11 possessed the power of appointing chairmen as well as members. The latter was deprived of this power after revolt against speaker in 1910-11.Both the speakers enjoy identical powers as well viz., presiding over the House, putting the question to vote, announcing the result of the vote, decidingthe point of order, protecting the privileges of the members, issuing the warrants in the name of the House, issuing writs for elections, heading the Administrative,department, checking un parliamentary remarks and serving as channel between the House and the Chief Executive.No wonder then that the Speaker ship in England is regarded an office of great honour and prestige. The Speaker is an able, vigilant, imperturbable andtactful person. In the official order of precedence he ranks next after the Lord President of the Council, which makes him the seventh subject of the realm.He receives a liberal salary, has an official101residence in Westminster Palace and gets both a pension and a peerage when he mittees in the House of CommonsDemocracy has brought about a revolutionary change in the nature of laws. In a non-democratic country, laws are the commands of the rulers and these aremade without any reference to the people. In a democracy, on the other hand, laws are expressions of the will of the people which is manifested in theParliament by their elected representatives. The volume of legislation also has increased with the growth of social welfare legislation. Naturally, therefore,every legislative body makes use of committees which do a large part of preliminary work. The use of committee system in order to save time and gain inefficiency has become a phenomenon with the legislative bodies of the world. The British House of Commons is no exception to this rule. The British committeesemployed in the House of Commons are of five kinds: (i) The Committee of the Whole House; (ii) Select Committees on public bills; (iii) Sessional Committeeson public bills; (iv) Standing Committees on public bills; and (v) Committees on private bills. A brief description of these committees is as follows:(i) The Committee of the Whole House: The Committee of the Whole House is the first in importance. It consists of all the members of the House of Commonsbut is distinguished from the House in the following respects:(a) The Committee of the Whole House is presided over not by the Speaker but by the Chairman of the Committee (or his deputy), who sits, not in the Speaker'schair, but in the clerk's chair at the table.(b) The mace, which is the symbol of authority of the Speaker, is placed so long as the committee is in session, under the table:(c) The rules of procedure in the committee are relaxed; a member may speak several times on the same question; motions need not be seconded; discussionscannot be terminated by a motion; and any matter which is voted upon can easily be opened up for reconsideration. Procedure is thus less formal and rigidthan in the House as such.When the work of the committee is finished, motion is made that the committee "rise and report." The Speaker then resumes the chair and the chairman reportsthe committee's action. This is, in other words, the House reporting to itself. Then the House with the Speaker in the chair proceeds to adopt its ownrecommendations.102The Committee of the whole House may meet for four distinct purposes; (i) the Ordinary Committee of the whole House on a Bill; (ii) the Committee of thewhole House on a Money Bill; (iii) the Committee of Supply; and (iv) the Committee of Ways and Means. The first committee meets when the House by a resolutionpasses that any ordinary Bill should be sent to the Committee of the Whole House rather than to a Standing or Select Committee. However, the Committeeof the whole House on an ordinary Bill is rare as now the ordinary bills mostly are referred to one of the Standing Committees. Important matters invariablyconsidered in the committee of the whole House include the estimates of expenditure and of revenue. When the business in hand relates to expenditure, thecommittee is known as the Committee of the Whole on Supply or simply the Committee of Supply; when it relates to revenues, it is styled the Committee ofWays and Means.(ii) Select Committees: Select Committees are appointed to consider and report on specific subjects on which legislation is pending or contemplated. Theycollect evidence, examine witnesses and in other ways obtain necessary information. These committees consist, as a rule, of 15 members and are appointedfrom time to time as the need arises. As soon as they have done their job, they go out of existence. Thus they are temporary in nature. The findings ofthese committees are not binding. Each committee chooses its chairman and each keeps detailed records of its proceedings. It may be noted that a selectcommittee has no power to require the attendance of persons or the production of papers or records unless it has been expressly so authorized by the House.The members of the committee are appointed by the House. The number of Select Committees is usually small, something like a score are provided in the courseof a session. However after acceptance of John Stevas proposal in June 1979 House of Commons creates every year 14 specialised select committees. Eachof these Committees consists of 9 to 11 members who are appointed by the committee of selection and formally approved by the House. These committees haveadded to the effectiveness of the House of Commons and accorded greater role to the backbenches.(iii) Sessional Committees: These Committees are appointed for single session to deal with certain specified matters, such as examination of petitions.The Committee of Selection is a Sessional Committee which consists of 11 members and is named by the House itself at the beginning of the session. Othersof the type are the103Committee on Standing Orders, the Committee on Public Accounts, the Committee on Privileges and the Committee on Public Relations. Generally eight or tensessional committees are created for an entire session.(iv) Standing Committees: It is the Standing Committees which are by far the most important ones and appear to be "miniature legislature." In 1882, twostanding committees were appointed to deal with: (1) law, courts of justice and legal procedure, and (2) trade, agriculture, fisheries, shipping and manufactures.These Committees were known as Grand Committees. In UK they are general purposes committees. In 1907, the number of such committees was raised to four.Each committee consisted of 60 to 80 members and all bills except money bills, private bills and bills for confirming provisional orders were referredto one of these committees unless the House directed otherwise. In 1919, the number was raised from four to six. In 1925, the number was reduced to fiveand in 1947, to "as many as shall be necessary."Each committee consists of members from 30 to 50 with the provision that the Committee of Selection after conference with the government and oppositionleaders might add from 10 to 35 such additional members who are specialists and experts in the subject which is the substance of the bill, to serve duringthe consideration of that bill only. The Committees are not named as in other legislatures by subject matter but are distinguished only by a letter ofthe Alphabet: A, B, C, D. However Scottish Committee13 is named after the subject matter i.e. Scottish Committee to deal with Scottish affairs. LikewiseWelsh committee considers the annual report for Wales and other matters concerning that part of the country.14The members of the standing committee are appointed by the Committee of Selection. The chairmen are appointed by the Speaker from a chairmen's panel consistingof not less than ten persons nominated by the Selection Committee. Members of all the parties are included in the committee. Before 1919 no Standing Committeecould sit while the House was in session but now that restriction has been removed and committee can sit while the House is in session.Every bill goes to Standing Committee. The committee thoroughly scrutinizes the bill and evaluates it. It holds open hearing and lakes evidence. All informationwhich is needed is supplied by the Minister-in-charge of the bill. The opposition supplies the contrary information. After having examined the bill thoroughlythe Chairman of the committee reports back the bill to the House.104(v) Committee on Private Bills: The Committee on Private Bills in the House of Commons consists of four members who are appointed by the Selection Committeewhereas in House of Lords each such Committee consists of five members. The number of committees depends on the number of bills to be examined. The membershipof this committee is also not very large. The members of the committee have to declare that they have no personal interest in any way in the bill beforethe committee. They have to make impartial examination of the bill. The procedure is somewhat akin to judicial procedure. These Committees report to theHouse whether or not the Bill may be passed.About the Committee system in England it has been said that the committees of the House of Commons are not small expert bodies undertaking special examinationof the bills and possessing the power of life and death over the bills. Every bill must be reported back and the House jealously guards its responsibilityof making laws. It has not surrendered its power of law-making to the committees. Its committees are only auxiliaries, "the mere accessories of the legislativeand critical machine." The committee system does not bring expert scrutiny to bear upon the bill. The members of the committee are constantly changing.They have no permanence or individuality. The standing committees do not conduct public hearings and take no evidence. Thus the committees in England donot overshadow the House of Commons.Powers and Functions of the House of CommonsThe House of Commons is the most important organ of the British Government. At present, it enjoys the highest powers in the legislative, financial and executivefields of the administration of England. Since 1911 the House of Commons has assumed final powers of law-making which are firmly shared with the Houseof Lords. As we have said earlier, the House of Commons is the Parliament. "When a minister consults Parliament, he consults the House of Commons; whenthe Queen dissolves Parliament, she dissolves the House of Commons. This is merely an epigramatic way of saying that the leadership, power and prestigeof the House of Commons are such that for many purposes Parliament and the House of Commons are one and the same thing. The main functions and powers ofthe House of Commons may be explained as under:(i) Legislative Functions: England has a unitary form of government and there is only one legislature, one executive and one judiciary for the whole ofthe land. The House of Commons being the popular chamber enjoys vast powers in the field of law-making. As we105have seen in our study of Parliamentary Sovereignty, there is no law which the House of Commons cannot pass. Formerly, its powers of law-making were co-ordinatewith those of the House of Lords, but the Parliamentary Act of 1911, as amended in 1949, has greatly curtailed the powers of the Lords and has made thelatter subordinate to the Commons. Now the final word regarding all legislative work of the Government lies with the House of Commons, it enjoys supremeauthority in the field of law-making. Though it by itself can do nothing as the laws are made by the King, Lords and Commons but the powers of the Lordsand the King are subject to significant limitations. House of Lords can delay a non-money bill for more than a year and the king cannot withhold his consent.Thereby, not only the initiative but also the decision with regard to all bills have now been left to the House of Commons. Its power over legislationis very impressive.(ii) Financial Powers: The House of Commons wields great authority over the nation's purse. It was through the control of the nation's purse that the Houseof Commons rose to supremacy. According to the Act of 1911 all money bills must originate in the House of Commons. The powers of the House of Lords overthe money bills are very much limited. At the most it can delay the money bill for one month. If during this period the Lords do not pass the bill, theHouse of Commons sends it to the King which becomes an Act on receiving his assent. In short, the power of the House of Commons over money bills is completeand decisive.In addition to it, the House of Commons exercises a great control over the finances of the Government. It discusses and then passes the Budget. The Lordsare not empowered to override the Bill of the House of Commons which is the final authority to sanction all expenditure and taxes. In short, the Houseof Commons must put its final seal before any taxes can be raised and expenditure made.(iii) Control over the Executive: The third great function of the House of Commons is to control the executive. England has a Parliamentary form of governmentand so the executive is responsible to the popular chamber of Parliament. The council of ministers can remain in office so long as it enjoys the confidenceof the House and it must resign whenever the policy of Government proves fundamentally unacceptable to the House. Therefore, "an obligation rests uponthe House of Commons to exercise a day-to-day control over the ministry in such a way that fundamental disagreement between the executive and the representativesof the people will be clear and manifest." The House106of Commons maintains its control in two ways; (i) by seeking information about the actions of Government, and (ii) by criticism.The members of the House of Commons can put questions to the Government which the ministers are obliged to reply. At the commencement of the sitting ofthe House, one hour four days in a week is devoted to answering questions by the ministers which have been put to them. It is called the "Question hour."The purpose of putting questions is mostly to bring the work of the various departments under public scrutiny. The number of questions put to the ministersat every session runs nowadays into thousands; and question hour is an interesting portion of every daily sitting. It is the most effective check on theday-to-day administration. As an English authority testifies, "There is no more valuable safeguard against maladministration, no more effective methodof bringing the searchlight of criticism to bear on the action or inaction of the executive government and its subordinates. A minister has to be constantlyasking himself not merely whether his proceedings and the proceedings of those for whom he is responsible are legally or technically defensible, but whatkind of answer he can give if questioned about them in the House, and how that answer will be received."15 The device helps greatly, as Lowell observes,"not only to keep administration up to the mark, but to prevent growth of a bureaucratic arrogance which happily is as yet almost unknown in England."16The House of Commons is not only a law-making body but is also a debating assembly. The most important function of His Majesty's opposition is to criticizeadministration and policy making. The best opportunity for the opposition to criticise the governmental policy as a whole is when the House debates thereply to the King's speech. Then the opposition criticizes the government's policy and puts the ministry on the defensive which has to reply to the criticismof the opposition and defend the government's policy.Again a member may move a motion of censure or motion of general want of confidence in the ministry. Motion for censure is usually aimed at an individualminister. But the criticism of an individual minister under the theory of collective responsibility amounts to the criticism of the whole ministry. Thenthere may be moved a motion of general want of confidence in the government. This is an extreme procedure, but it is sometimes resorted to. The House ofCommons, therefore, possesses wide opportunities for control of the Executive. That such control is needed, is clear because the executive107has extended its functions to the extent that they touch the very bones of individual lives. Finer remarks, "The government departments are virtually fortygreat monopolies; they need a strong force outside them to shake them up."17Law-making ProcedureIn the early stages of its history, it may be recalled, the House of Commons had no power to make laws. It merely petitioned the Crown to make laws whothen framed and enacted laws at its own discretion based upon the petitions of the House. Sometimes, the laws made by the Crown turned out to be very differentfrom what had been asked for. This led to a demand by the House of Commons for a share in law-making. Gradually the demand was yielded to until at last,by the fifteenth century the two Houses became full-fledged legislative bodies, and developed a parliamentary procedure of law-making, giving each billthree readings referring it to a committee, and voting it and sending it to the King for his assent.Before we describe the existing procedure of law-making in England, we may just refer to the various kinds of bills that appear before the House. Billsare usually divided into Public Bills and Private Bills. Public Bills are of general application and pertain to the whole public and to the larger partsof the kingdom. On the other hand, private bills are of local or private interest which concern a specific person, corporation, group or local area. Inother words, they are not public concern. Public Bills may be sub-divided into Government Bills and Private Members' Bills. A Government Bill is one whichis introduced on behalf of the government by a minister. A private member's bill is introduced by a member of the House who is not a member of the government.Public bills may be either money or non-money bills. First we shall describe the procedure of Public non-money bills.Public Bills: (non-money Bills): The process of converting a public bill into an Act of parliament is long and intricate. It has to go through various stagesbefore it can be enacted into a law. The various stages through which every public bill has to cross may be explained as under:(i) Bill drafting: Before the parliament the bill comes in a fully drafted form. The bill must be laid down in exact words and be complete in every respect.The first step, therefore, in introducing a bill is the drafting of the bill itself. If it is a private member's bill, it is drafted by the member himselfor with the help of anyone whom he may employ for the purpose. If it is a government bill, it is prepared by public draftsmen in the office of the ParliamentaryCounsel to the Treasury. 108The minister in whose province the bill falls, first prepares a rough outline showing the main features of the project. Then the cabinet discusses the proposaland if it accepts the proposal a memorandum is sent to the office of the Parliamentary Counsel where the skilled draftsmen work up the measure in detail.The draft bill comes back to the cabinet which gives it a final look over and the bill is ready to be carried to the parliament.(ii) Introduction and first-reading: When the bill has been finally approved by the cabinet, it is introduced by the minister concerned. There are two methodsof introducing a bill—either on a motion or on a written notice. Under the former procedure the minister may ask for leave to introduce the bill. The ministermakes a speech explaining and defending the bill's contents. After debate over the motion, the House votes whether to grant or withhold the desired permission.Usually permission is granted because refusal would mean a defeat for the ministry. However, the practice of introducing a bill on motion has fallen intodisuse and the present method is to introduce it on written notice. Under this method the introducer gives notice of his intention to bring a bill, whichnotice appears on the "order of the day." On the appointed day the Speaker calls the name of the introducer to present his bill at the clerk's table. Theclerk of the House reads out the title of the bill. Sometimes only a "Dummy Bill" is placed on the table of the clerk. As soon as the clerk has read thetitle, the introduction of the bill, along with its first reading, is over. It may be noted that in the stage of introduction and first reading there isno debate and discussion. The bill thereafter is printed and awaits its turn to be called up for the second reading.(iii) Second reading: The third stage in the life of the bill is the second reading stage. On a day fixed in advance by an order of the House, the member-in-chargeof the bill moves that it "be now read a second time." He explains the bill and its necessity and defends it giving a long speech. Some member from theOpposition criticizes and attacks it and moves that the second reading should not be proceeded with or that this bill be read a second time this day sixmonths." Then a general debate follows in which members of both sides of the House participate. After the debate is over the motion is put. If the willof the opposition prevails, the bill perishes. But there is little chance of a government bill being defeated. It almost comes through. However, a privatemember's bill is likely to be killed at this stage unless supported by the government. The important thing to be noted is that there is no detailed109discussion of the bill at the second reading stage. The debate at this stage is confined to the aims, principles and larger provisions of the bill. No amendmentsare moved and no votes are taken upon the clauses. The aim is only to discuss the bill as a whole and in a general way. Discussion of individual clausesis out of order. The question before the House is whether it desires legislation of the proposed type or not.(iv) Committee stage: Having passed its second reading the bill enters the committee stage. It goes to one of the five standing committees as directed bythe Speaker unless the House directs it to be sent to a committee of the whole on grounds of its exceptional importance or highly controversial nature.Sometimes, a bill may be referred to a select committee which does not replace, however, the reference to a standing committee but is a step added to thenormal procedure, because after being returned by the select committee the bill goes to the committee of the whole or to one of the standing committees.In the committee the bill is discussed in all its details. Every clause is separately taken, discussed, amended, accepted or rejected. Discussion is generallyof a very restrained character. The government maintains with persistence its guiding hand through the committee stage. The minister "must guide the billthrough committee with tactful and, if necessary, forthright firmness in respect of principles, and with the appearance of amiable resignation and broad-mindednessin connection with unimportant detail." The procedure before the committee is informal. A member may speak any number of times on the same clause. Evena clause voted upon may be reopened for discussion. After the committee has examined the bill in all its thoroughness, it prepares its report which issubmitted to the House by the chairman of the committee.(v) Report stage: In the report stage the House discusses the bill as reported by the committee. The amendments proposed by the committee are debated andalternative amendments offered. The Bill is read clause-wise, the report of the committee on every clause is taken up and if the committee has proposedany amendment to a clause that amendment is discussed. The members may propose their own amendments. The report stage is a lengthy one as every clauseis discussed and voted. If the government considers the bill of an urgent nature, it may resort to motions for closure. Closure may take one of the followingforms:Simple Closure: Under this closure the member may move the motion that "the question be now put." The Speaker may accept or110refuse the motion if he feels that any rule of the House has been violated or the opposition has not been given a fair chance to express itself over thebill. If the Speaker accepts the motion and if the motion is carried by not fewer than a hundred votes, the debate is closed and the matter under discussionis voted upon.Guillotine: This is a closure when the various parts of the bill are put to vote on the expiry of the allotted time for those parts. This kind of closureinvolves allotting a certain amount of time to various parts of a measure or to its several stages and taking votes at the appointed time even if the importantaspects of the bill have not been discussed.Kangaroo Closure: Under this form of closure the Speaker is empowered to select those clauses and amendments which he thinks most appropriate for discussion.The Speaker has the power to decide which amendments at the Report Stage may be debated when several have been submitted to the same clause. The practiceof missing some amendments is called the Kangaroo Closure since the Speaker leaps over some amendments. Kangaroo may be used separately or in conjunctionwith Guillotine.(vi) Third reading: When all the clauses of the bill have been voted upon in the report stage, the bill enters the third reading stage. This is the finalstage in the House of Commons. At this stage there is again a general debate on the bill. The idea that the bill "having been approved in principle onthe second reading, having been liked into shape in detail on the committee stage, the House should take one more look at the bill as amended before itfinally gives its approval." At this stage no amendments other than purely verbal ones are in order. If it is desired to change the substance of a clause,even slightly, the bill must go back to the committee. After the debate is over, the bill is put for final voting of the House which must reject or acceptit as it stands. Rejections at the third reading are not common. "The third reading," remarks Dr. Finer, "is a political mastering: the Government expressesits thankfulness that it has been able to do the country some good, in spite of the opposition; and the opposition replies by claiming that it has madea bad bill better than the Government first presented it, and that, even so, it has doubts for the future of the country's prosperity."18 When the thirdreading is passed the action of the House of Commons ends and the bill goes to the House of Lords for concurrence.Procedure in the House of Lords: The procedure in the House of Lords is not materially different from that in the Commons. All bills in the Lords are givenfirst two readings, considered in the committee of111the whole or referred to a Standing Committee, reported back with or without amendments, debated and then adopted or rejected. If the Lords pass the billin the form it emerged out of the Commons it is sent to the King for assent and on receiving the royal assent it becomes an Act. If the Lords make someamendments in the Bill, the amendments have to be approved by the House of Commons. On the appointed day the Speaker puts the amendments for the considerationof House. As each amendment is put, the minister-in-charge of the bill rises and moves, "that this House doth agree with Lords in the said amendment" or"Not this House doth disagree with the Lords in the said amendment." In case of disagreement an exchange of written messages takes place between the twoHouses. If no agreement is reached through exchange of messages and the House of Commons insists on having its way, it may invoke the provisions of theParliament Act of 1911, as amended in 1949. Under that Act as revised in 1949 a deadlock between the two Houses could last until the Commons passed thecontroversial bill at two successive sessions with an interval of at least one year between the first and second reading. The final voice thus rests withthe House of Commons.After the bill is passed by the Parliament it is sent for the royal assent. The King may convey his assent in person, but now-a-days it is usually givenby Lords commissioners who represent the King and declare and notify royal assent. On receiving royal assent the bill becomes a law and is then publishedinto the statute Book.Private Members' Bills: The procedure for private members' bills is the same as that for the government bills with a slight difference in the method ofintroduction. What actually happens is that at an appointed hour private members who desire to introduce public bills are required to put their cards ina box at the clerk's table. The clerk then draws the lots and the member whose name is first drawn gets the opportunity to introduce his bill on the firstavailable Friday of the session: the second member gets the next available Friday and so on till the opportunities are exhausted. Having had the good fortuneto get his bill on the notice paper, the member moves that it be read a first time and secures it a second reading: it then goes to one of the StandingCommittees and follows the same procedure as other public bills.The private members' bill suffer from certain disadvantages. Firstly, the time allotted to them is insufficient, ten days in the session. Secondly, theprivate member lies under a heavy disadvantage in the drafting of the bill. Finally, un less the government supports the bill,112there is little hope of its being passed. "If a member is lucky in his lottery and can introduce a bill which is generally popular and which neither theministers nor any of his fellow members dislikes and if he possesses the art of appeasing opposition, he may manage adroitly to steer his bill througha parliamentary session."19 But few members can hope to run this gauntlet successfully.Private Bills: A private bill is one whose subject is "to alter the law relating to some particular locality, or to confer rights on or relieve from liabilitysome particular person or body of persons." Thus a private bill applies to a special class of persons defined by locality. Its purpose is to deal witha special situation or a limited locality. It affects specific private interests as opposed to the general classes of the community. There is a differentform of procedure for private bills.The private bills are presented in the form of petitions attached to the bills. They cannot be introduced by merely giving notice. The introducer has tocertify in the petition that the government department having most to do with the matters of the kind involved and also all persons directly affected havebeen duly informed. The petitions are submitted to an official of each House known as "examiner of petitions for private bills" together with a descriptionof the proposed undertaking and an estimate of its cost. After the examiner of petitions has certified that all of the requirements have been compliedwith, the petition may be introduced in the chamber.20 It may be noted that the promoters of the private bills are not the members of parliament but outsidepersons acting through parliamentary agents.On introduction the private bill is read a first time and ordered to be read a second time. After second reading the bill goes to one of the private billscommittees. Each committee on private bills consists of four members in the House of Lords. It is in the committee that real hearing takes place over thebill. The members sit as judges; they hear evidence as presented by the promoters and opponents as judges; they hear evidence of rival counsel and finallyadjudicate upon the merits of the undertaking. The committee first decides whether the object of the bill is considered in detail, and at the end the committeereports it back to the House with or without amendments. The report of the Committee is normally accepted by the House. The report and third reading stagesare, therefore, mere formalities. After the third reading, the bill goes to the other House where it follows the same procedure.The important points of difference between the procedure for public bills and procedure for private bills are the following:113(i) The private bills are promoted by private interests whereas public bills are introduced either by the government or a private member promoting generalinterest.(ii) The private bills have to fulfil certain formalities like giving notice to all the parties likely to be affected by the Bills before they can be introducedin the House; whereas the public bills need not fulfil such formalities.(iii) The private bills before being introduced in the House are examined by "examiner of petitions for private bills"; the public bills are not so examined.(iv) The private bills go to a committee on private bills. The procedure before this committee is quasi-judicial; the procedure of the committee on publicbill is not quasi-judicial; paid counsels do not appear before it, whereas they appear before the committee on private bills.Provisional Order Bills: The quest for private acts of parliament has been considerably slackened by the use of provisional orders. These orders are issuedby government departments that are authorized by the parliament to issue certain orders whenever proper cause for such action can be shown. So, when alocal body desires to have some power not already conferred over it, it applies to the department which has jurisdiction in the matter and the department,if authorized by the parliament, issues an order granting the power. This order may be provisional in which case it requires for its validity the subsequentratification of parliament. The practice is to lump several provisional orders into a confirmation bill which is known as Provisional Orders ConfirmationBill, and present it for enactment into law. Confirmation is usually never refused.Budgetary Procedure in EnglandThe principal means by which Parliament arose to supremacy was through the control of the nation's purse. No taxes may be levied without express parliamentaryapproval, and no public money may be spent without similar authority. In this section now we shall study the procedure of financial legislation.Preparation of the Estimates: The first step in the financial legislation is the preparation of the estimates. The work of preparing the estimates is begunin the autumn of each year when a circular from the treasury is sent to all departments asking them to furnish figures concerning their probable requirementsfor the next financial year. When the estimates are all received by the treasury, it checks them with114the figures of the preceding year. The treasury officials may meet the officials of the various departments with a view to getting reductions by mutualagreement. Meanwhile the departments prepare the estimates of revenues and so the need is either to reduce the expenditure or else to find some new sourcesof revenue. The chancellor of the exchequer makes up his mind as to the wisest course and then lays the budget before the cabinet. The cabinet after hearinghim on the main provisions of the budget gives it a final shape and authorizes the chancellor to lay the budget before the parliament.The Budget Speech: The chancellor of the exchequer presents the estimates of expenditure to the House of Commons sometime in the second or third week ofFebruary. A little later he makes an elaborate budget speech to the House sitting in committee of the whole in which he reviews the finances of the pastyear and enunciates the policy for the next year.The House in Supply: After the estimates of expenditure are presented to the House it converts itself into the Committee of Supply (colloquially known asHouse in Supply) and takes up the consideration of the estimates. The estimates are considered in separate groups termed "votes" corresponding to distinctservices. The "votes" are presented by the heads of departments individually, thus the Secretary of State for air brings in the air force estimates; thefirst lord of admiralty presents the naval estimates; the financial Secretary of the Treasury presents the civil estimates. The "votes" are debated butthe debates are seldom devoted to financial matters. These debates are general and extend to the government policy. The opposition criticises the generalpolicy of the Government. The members may propose to strike out or reduce any items of expenditure, but they have no right to add or increase any amount.In practice the proposal to strike out or reduce the expenditure on any item is not carried because the ministers decline to accept a reduction. The resultis that the estimates are passed without any drastic alteration. The debates on the estimates must be concluded within twenty-six days. All votes becomesubject to the closure at the expiration of this time mittees of Ways and Means: When providing revenue, the House sits in a committee of the Whole House in Ways and Means. The committee functions throughoutthe same period of time as the Committee of Supply. The proposals of revenue are detailed serially and after adoption are reported to the House in theform of resolution. The members cannot move any new taxation although they may move115to reduce taxes or to repeal them altogether. But the government usually declines to accept any proposal of reducing or repealing any tax.Revenue and Appropriation Bills: After the estimates of expenditure have all been voted by the House in Supply and the various revenue proposals have beenapproved by the House in Ways and Means, the whole is then embodied in a Finance Bill and an Appropriation Bill. The Finance Bill based upon resolutionsreported from the Committee of Ways and Means deals with new taxes or changes in the rates of old ones. The appropriation Bill based upon the grants thathave been passed by the House in Supply deals with expenditures. Both these bills, which are termed money bills, are put before the House and therein theypass through the usual stages.After the House of Commons has passed both these bills, they are sent to the House of Lords which has no alternative but pass them without amendment. Underthe Act of 1911; if the Lords receive money bills at least one month before the end of the session, they are sent for royal assent irrespective of whetherthe Lords concur with them or not.The whole budgetary procedure takes a long time to be finished. Generally it is not before July or August that the Appropriation Bill and Finance Bill arepassed by the parliament. Therefore, to carry on the government from April 1, until the budget is passed, the House of Commons passes various "votes onaccount." These votes on account are lumped together in a bill which is enacted early in the session.Home Rule for Scotland : The most far reaching constitutional changes were contemplated in July, 1997. Scotland was to have its first Parliament after 300years by 2000 A.D. The Scottish parliament would consist of 129 members. The electors will have two votes—one for a constituency M.P. and one for a partylist. The number of Scottish M.P s at Westminster will be cut down to 12. Parliament will be able to increase or decrease tax by 3 per cent. It would beable to make laws on most domestic issues. Sovereignty will continue to rest with the British Parliament and the Queen would remain the head of State.The Westminster would be responsible for crucial matters like foreign policy, national security and defence. Education, health, law, local government andenvironment are to be devolved. The proposals for the devolution of powers to Wales and Scotland were displayed by the Labour Party in their Election manifesto.The Conservatives opposed it vehemently but the Labour were victorious at the hustings in May, 1997 Elections. The devolution as proposed is the most amicableway out for the English. In fact the Blair Government did its best to keep the Scots116happy and within the reach of Westminster. These Plans for Home Rule were subject to Referendum in September 19972. Scotland voted for Home Rule on September11, 1997. The Voters opted for a separate parliament where elections will be held in May, 1999 and new members will take their seats for the first timein 2000 A. D. They empowered the parliament to raise taxes as well.References1. The voting age has now been reduced to eighteen.2. Dicey, A.V., Introduction to the Law of the Constitution, pp. 39-40.3. Ivon Jennings: The British Constitution p. 86 (1965 ed).4. Jennings, W.I., Parliament, p. 2.5. Barker, E., Britain and the British People, pp. 24-25.6. Low, Sidney, Governance of England, p. 213.7. Walpole, Spencer, Electorate and Legislature, p. 48.8. The Hindustan Times, June, 10, 1983.9. Morrison: Government and Parliament (1954 ed) pp. 204-5.10. Kangaroo is an animal who walks by jumping.11. Morrison, Herbert, op. cit., p. 73.12. Finer, Government of Great European Powers, p. 107.13. Scottish Committee composed of 72 members of the House from Scotland and not more than 15 other members.14. Welsh Committee consists of 38 members from the Province and not more than 25 from others.15. Albert, C, Parliament, pp. 113-114.16. Lowell, A.L., Government of England, p. 332.17. Finer, Government of Great European Powers, p. 162.18. Finer, Governments of the Great European Powers, p. 119.19. Master man, C.F.G., How England is Governed, p. 248.20. It may be noted that the private bills which are to be introduced at a given session are in advance divided into two equal lots, one to go first tothe House of Commons and the other to the House of Lords. The division is made in conference between the ways and means Chairman of the Commons and theChairman of the Committee of the Lords.21. Hindustan Times, July 26, 1977.1177 THE BRITISH PARLIAMENT: HOUSE OF LORDS"The House of Lords is a political anachronism in a land of democracy."—WebbsThe House of Lords is the oldest second chamber in the world. It has been in continuous existence in one form or another for more than a thousand years.It grew out of the Great Council which was the successor of the Saxon Witan. In 1295, when Edward I called his Model Parliament, all the different classesof people summoned to attend met in one single assembly. But afterwards they split up into three groups -Nobles, Clergy and Commons. Later on the greaterclergy found its interests in common with the nobles and they associated together into one body which came to be called House of position of the House of LordsThe membership of the House of Lords is not fixed. At present the House of Lords consists of over 1100 members. These members fall into seven distinct categories:(i) Princes of the royal blood;(ii) Hereditary peers; (iii) Representative peers of Scotland;(iv) Representative peers of Ireland;(v) Lords of Appeal;(vi) Lords Spiritual; (vii) Life peers.(i) Princes of the royal blood: In this category are included all such male members of the royal family who have attained maturity and are within specifieddegrees of relationship and are conferred the title of Duke. The eldest son is Duke of Cornwall and second son Duke of118York If another son is born he will be entitled as Duke and made a member of House of Lords. Such members are rarely two or three at a given time. Theirmembership has little practical importance because the princes do not attend the sittings of the House of Lords except on rare occasions.(ii) Hereditary peers: This category consists of the largest number of members. About nine-tenths of the members belong to this category. A great majorityof people hold their seats in the Lords because they per chance happen to be the eldest grandsons of an ancestor who was first created a peer. They arethe "accident of an accident," as Bage hot has called them. There is no limit to the number in this category. The power of the Crown to create peers isunlimited and as many people can be created peers as the sovereign likes. There is no limit upon the number that may be created. Certain classes of personsare, however, ineligible for peerage. These are: (1) persons under eighteen years of age, (2) aliens, (3) bankrupts,1 (4) persons serving a sentence onconviction of felony or treason, and (5) women. However since 1963 peeresses have been given the right to sit in the House of Lords. If a peer dies leavingno son the eldest daughter will inherit the peerage and a seat in the House of Lords.(iii) Representative peers of Scotland: Their number was sixteen and were elected by the Scottish peers in accordance with the provisions of the Treatyof Union, 1707, until 1963. The Peerage Act of 1963 has done away with the election and all Scottish peers have been admitted lo the House on hereditarybasis.(iv) Representative peers of Ireland: A fourth group was of the Irish representative peers. By the Act of Union of the Great Britain and Ireland of 1801,the Irish peers were entitled to elect 28 representatives, but since 1922 when Ireland was declared a free state no new peers have been created. Consequentlythe number of Irish representatives has been dwindled and now not a single Irish peer remains the member of the Lords.(v) Lords of Appeal in ordinary (Law Lords): In this category there were nine law lords but since 1990 there are 21 law lords, who are appointed by theCrown under the provisions of the Appellate Jurisdiction Act 1876, to assist the House in the performance of its judicial functions. They hold their seatsfor life. They are chosen from among distinguished jurists.(vi) Lords Spiritual: They are twenty-six in number. Two are archbishops of York and Canterbury and twenty-four are senior bishops119of the Church of England. Out of 24 Bishops of London, Durhem and Winchester are positively there according to seniority. When a sitting bishop dies orresigns, the one next on the list, in the order of seniority, becomes the member.(vii) Life peers: They are created under the provisions of the Life Peerages Act, 1958. They are the persons who have held high offices in the state andhave since retired, e.g., ministers, speakers etc. Their successors are not ipso facto entitled to the membership of the Lords. Over 200 peers have beenso created. Most of them are active participants in the business of the House. 4 are women peers since 19582.In the composition of the House of Lords it may be noted that it is partly hereditary and partly democratic in composition. Till 1957 the membership ofthe House of Lords was entirely male. But since 1958 women were allowed admission to the House if they were created life peeresses. Its composition promptedMunro to call the House as "Westminster Abbey of living celebrities?"Lord Chancellor: The Lord Chancellor is the presiding officer of the House of Lords who sits on a large couch or diwan known as the woolsack. He is a memberof the cabinet. He is appointed by the Queen on the advice of the Prime Minister and holds office during the pleasure of the crown which means the PrimeMinister. His powers as presiding officer are insignificant as compared with those of the Speaker. He does not even enjoy the powers commonly enjoyed bythe chairmen of the Standing Committees. He does not even have the power to recognise members who wish to speak. If two or more members rise simultaneouslyto speak, the House and not the Lord Chancellor decides who shall have the floor. He does not have even the common disciplinary powers. The proceedingsof the House are orderly but if order in the House is to be enforced, it is done by the House itself. The members do not address the chair but "My Lords."The Lord Chancellor does not even have a casting vote, though as a peer he may speak and vote. In a word, his role as presiding officer is almost entirelyformal.But the Lord Chancellor is also the chairman of the Judicial Committee and the legal adviser to the crown. As such he enjoys the following powers:(a) The judges of the High Courts are appointed by the Crown on his recommendation.(b) He appoints the judges of the County Courts and also has the responsibility for the appointment of Justice of Peace.120(c) He can remove the judges of the County Courts and Justice of Peace.(d) He holds the great seal of the Realm which he affixes on behalf of the Crown on all agreements, declarations and treaties.(e) He presides over the House when it sits as the Highest Court of Appeal.(f) He is the Chairman of the Council.(g) He controls and supervises the organisation of judiciary under the Act of 1925.(h) He reads over the address of the crown before the House.The lord chancellor gets ? 10,000 a year as his salary and on retirement gets a pension of ? 5,000 per annum.3Committee System: The Committee System in the House of Lords is broadly similar to that found in the House of Commons, and hence need not be described indetail. Besides the Committee of the whole, large use is made of sessional and selected committees; and there is a standing committee for textual revisionmade up at the beginning of each session, to which every bill, after passing through the committee of the whole, is referred, unless the House otherwisedirects. The most important sessional committees are: (1) the Committee of Privileges; (2) the Appeal Committee; (3) the Standing Orders Committee; and(4) the Committee of Selection.Powers and Functions of the House of LordsBefore the passage of the Parliament Act of 1911 the House of Lords was in all respects co-ordinate in powers with the House of Commons. In legislationthe Lords were on a footing of perfect equality with the Commons. Any bill could originate in either of the two Houses and no bill could become a law unlesspassed by both the Houses in the same form. In financial matters there was a well established convention that the money bill could not originate in theHouse of Lords but it could reject or amend such a bill. In judicial matters the House of Lords had both appellate and original jurisdiction. It actedas the highest court of appeal for the United Kingdom and besides that it had the power to try the case of its own members if they refused to be triedby the ordinary courts. Finally, it had the power to hear impeachment brought by the House of Commons against the high officials of the State. It may,however, be noted that trial of Lords and impeachment of officers has fallen into disuse.The Parliament Act of 1911After the passage of Parliament Act of 1911 the position underwent a change and the House of Lords was reduced to a mere shadow of its121former self. This Act sealed the victory of the House of Commons statutorily. In order to understand properly the Act of 1911, we would briefly trace thehistory of the relations between the Commons and the Lords and the necessity of the Act. Before 1832 the relations between the two chambers were quitecordial because the predominant elements in both the Houses were conservative and many members of the House of Commons were personal defendants of theHouse of Lords. But a great change came with the Reform Acts of 1832, 1867 and 1884 whereby the House of Commons became democratic. Now it began to appearthat a conflict between the two Houses was inevitable, sooner or later. So long as the conservatives were in power there was harmony but when the liberalsobtained majority in the Commons they had to reckon an entirely hostile House of Lords. During the Liberal administration of 1892-1905 the House of Lordsrejected Gladstone's second Home Rule Bill and defeated or mutilated several other measures. Gladstone said that the differences between the two Houseswere fundamental. The Liberals declared that the House of Lords must be mended or ended.The climax came in 1909 when the House of Lords rejected the Finance Bill of that year. Lloyd George had introduced a budget which proposed certain taxesparticularly affecting adversely the landed aristocrats. The Liberal Party popularised it as the people's budget. Upon its rejection an uproar was raisedin the House of Commons that this action of the House of Lords was unconstitutional. In fact, a resolution was passed to the effect by the Commons butthe Lords did not yield. Then the Liberal Party appealed to the country and was returned to the House of Commons with a still greater majority. In April,1910 the Liberal Government introduced the bill to curtail the powers of the Lords. It was very unlikely that the House of Lords would pass the suicidalbill. The government threatened that in case of rejection they could use the old procedure of swamping the House of Lords by creation of a sufficient numberof new peers. The House of Lords dared not reject the Bill but delayed it. Again a general election took place over the same issue and again the liberalscame victorious in it. The Bill was reintroduced and the Lords gave way under the threat of being swamped. Thus, the Bill, after a long battle, won thevictory and became the famous Parliamentary Act of 1911.The main provisions of the Act are the following:(1) If a money bill having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is notpassed by the House of Lords without amendment within one month after it is sent up to that House, the Bill shall, unless122the House of Commons directs to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal assent being signified, notwithstandingthat the House of Lords have not assented to the Bill.(2) If any Public Bill (other than a Money Bill or a Bill to extend the maximum duration of parliament) is passed by the House of Commons in three successivesessions (whether of the same Parliament or not) and having been sent up to the House at least one month before the end of the session, is rejected bythe House of Lords in each of these sessions, the bill shall on its rejection for the third time by the House of Lords, unless the House of Commons directsto the contrary, be presented to His Majesty and become an Act of Parliament on the Royal assent being signified thereto, notwithstanding that the Houseof Lords have not consented to the Bill: provided that this provision shall not take effect unless two years have elapsed between the date of the secondreading in the first of these sessions of the Bill in the House of Commons and date on which it passes in the House of Commons in the third of these sessions.The general effect of the Parliament Act of 1911 was to terminate the co-ordinate and independent authority which the House of Lords had enjoyed before.Under this act, a money bill can be presented to the King for his assent even if the Lords do not assent to it provided it was sent to the House of Lordsone month before the end of its session. In the case of non-money bills, if a non-money bill is passed three times by the Commons in successive sessionsand each time it is rejected by the Lords, it may be presented to the King for his assent provided two years have passed between the initial proceedingof the Bill and its final passing in that House in the third session. It may also be mentioned that the Act reduced the life of Parliament from seven tofive years. Act of 1949Though the Parliament Act of 1911 greatly curtailed the authority of the House of Lords, yet to further curtail its authority an Amending Act was passedin 1949, which reduced the period of two years to one year and the number of sessions from three to two. Now the position is that a bill may become anAct despite its having been rejected by the House of Lords if it has been passed by the House of Commons in two successive sessions (instead of three asprovided in the Act of 1911), and if one year (instead of two) has elapsed between the date of the second reading in the first session in the House ofCommons and the final date on which the bill is passed by the House of Commons for the second time.123Present PowersAfter having studied the Parliament Act of 1911 as amended in 1949 we may briefly enumerate the present powers of the House of Lords:(i) Legislative Powers: Legislative powers can be discussed in two phases - control over money bills and non-money bills. As regards control over financialbills the House of Lords is practically ineffective. If the House of Lords with holds their assent to a money bill for more than a month it would be presentedto the King and become a law on receiving the Royal assent despite the fact that the Lords did not concur with it The money bills cannot be introducedin the Lords. Thus it does not control the purse.So far as non-money bills are concerned the same may be introduced in the Lords but usually ninety per cent bills are introduced in the Commons. A non-moneybill passed by the House of Commons in two successive sessions with an interval of at least one year between its first reading in the first session andits last reading in the second session will become a law after having received the Royal assent irrespective of its having been rejected by the Lords.Thus in both the financial and non-financial fields the final authority rests with the Commons and the House of Lords has now lost all its effectivenessin these fields.(ii) Executive Powers: The Lords have the power to ask questions from the government and have a full right to debate its policies. It enjoys a share inthe cabinet membership. Some Lords are included in the cabinet. It may be noted that the Lords have no power to pass a censure against the ministry. Thecabinet is not responsible to the House of Lords. The latter can only cross-examine the ministers.(iii) Judicial Powers: The House of Lords enjoys original powers to try peers in case they are involved in any treason or felony against national interest.It is also authorized to hear impeachments sent to it by the House of Commons. But now a days this original jurisdiction has lost all its importance.The House of Lords also acts as the highest court of appeal in Great Britain. So far as theory is concerned, the ordinary members have the right to attendthe meetings of the House at the time of trial and can decide the judgment by a division of vote but actually they never do so. At present only the LawLords hear appeals. The whole House never meets as a Court of Appeal.From the above accounts of the present powers of the House of Lords it is evident that it has become a shadow of its former self. What it was already inpractice it has also become in theory and law. It is now124not only a second chamber but for all intents and purposes it is a secondary chamber. Even all possible allowance being made, it is nowadays possible bothactually and legally for legislation of every description to be enacted without the assent of the House of Lords. It has been reduced to a mere glamorousupper chamber. Hence, Dr. Munro described the House of Lords as "Westminster Abbey of living celebrities." The top ranking politicians, sagacious statesmenhaving no interest in active politics find place in this House of Lords. Hence the remarks of Dr. Munro.Reforming the House of LordsThe House of Lords as presently constituted has been the subject of severe criticism. The criticism runs chiefly on three lines; (i) its predominantly hereditarycharacter; (ii) its association with certain groups and interests; and (iii) its having become wedded to the principles and policies of the ConservativeParty. Briefly considered, these criticisms run as follows:(i) Political Anachronism: The House of Lords has been called a "political anachronism" in a land of democracy. The House cannot be called popular in anysense of the term. While during the nineteenth and twentieth centuries the House of Commons underwent the process of democratization, the House of Lordsstood still. It remained inherently a hereditary body representing mainly the interests of landed property and the established order. It identified itselfwith all those forces that tended to perpetuate aristocracy. By standing still while other institutions became progressively democraticized, the Houseof Lords became more and more an assembly of men who are law-makers by mere accident of birth. The peers are responsible to nobody except themselves. Webbshas aptly remarked, "Its (House of Lords) decisions are vitiated by its composition."4(ii) Fortress of Wealth: Secondly, the House of Lords represents the interests only of the landed aristocracy. In the words of Ramsay Muir it is the "fortressof wealth." In fact, property is the basis of the House of Lords. "Over one-third of them are directors (some multiple) of the staple industries of thenation. One-third of them also run very large estates. Many of them are related by marriage, birth and business connections with the conservative membersof the House of Commons."5 Naturally therefore, it looks to the interests only of the higher classes. Hence Webbs calls it "the worst representative assemblyever created." Another writer has called it "the directory of Directors." According to Laski, there is no large industry where capitalist leaders125do not have representation in this House. Lord Acton wrote to Gladstone's daughter in 1881 when the Lord opposed the Irish Land Bill, "But a Corporationaccording to a profound saying has neither body to kick nor soul to save. The principle of self-interest is sure to tell upon it. The House of Lords feelsa stronger duty towards its eldest sons than towards the masses of ignorant, vulgar and greedy people. Therefore, except under very perceptible pressure,it always resists measures aimed at doing good to the poor. It has almost always been in the wrong-sometimes from the prejudice and fear and miscalculation,still oftener from instinct and self-preservation."6(iii) Bipartisan: Thirdly, the House of Lords has converted itself into a bipartisan body composed of men of a single political party. After 1886 the Houseof Lords has remained overwhelmingly conservative. Thus the Conservative party remains in unchallenged mastery of the House of Lords. No Bill promotedby a Conservative Government has been rejected by the House of Lords since 1832 and "for the last fifty years at least, no Conservative Bill has been amendedagainst firm Government opposition."7 According to Laski, "It is not an impartial useful institution which goes by public opinion. It has always supportedthe interest of only one party. The conservative party may be in power or not, but in the House of Lords it has always been in majority."(iv) Irregular Attendance: Fourthly, the thin attendance in the House of Lords has also given a cause of complaint to its critics. Normally, only eightyor ninety peers participate in decisions of the House of Lords. Some peers seldom show their faces in the House. One-half of its members have never spokenat all and about one hundred peers have not taken the Oath as yet. Some peers are not even recognised by the Servants of the House. The quorum for conductof ordinary business is only three. In the words of Lord Samuel, the House of Lords is "the only institution in the world which was kept efficient by theconsistence of the absenteeism of the great majority of its members."(v) Obstructionist: Lastly, as one critic writes, "A study of its records reveals that the House of Lords, by its very nature, has placed great obstaclesin the way of legislative programmes of those governments only that were liberal or non-conservative; that it has frequently accepted legislation fromthe Conservative Government which it has rejected from Liberals; that instead of being an independent house, it acts as one wing of the Conservative party- looking after the interests of Conservatives when out of power, as one of its members put126if and that in the course of years, it has worked out an effective technique of legislative obstruction by which it has been able always to delay and oftento destroy the legislation of governments it did not like, wearing them down by a process of attrition, so that they lost their popularity and were replacedat the polls by governments it did not like, when it could relapse once more into a state of dignified and secure quiescence."8 Dr. Finer also is of theview that the House of Lords "retarded the forces of progress" hence its existence was an anomaly - a gross anomaly "without justification in this era."On the basis of the above criticism of the House of Lords some thinkers have suggested that it should be abolished. The House of Lords, they say, is soutterly out of keeping with democratic government that it ought to be suppressed root and branch. A resolution moved in the House of Commons by the Labourgroup in 1907 reads: "That the Upper House, being an irresponsible part of the legislature and of necessity representative only of interests opposed tothe general well-being, is a hindrance to national progress, and ought to be abolished."Utility of the House of LordsDespite scathing criticism the House still exists. It is due to its utility which can be hardly minimized. The following are the main points of its usefulness:(1) A historical institution: Though the utility of the House of Lords has been seriously questioned, nevertheless, the general body of British opinionis undoubtedly favourable to a second chamber. In addition to the usual uses of a second chamber, British opinion finds something more in the House ofLords which it does not like to forego. It is a historic institution which represents the British way of life. It has worked well. "The very irrationalityof composition of the House of Lords and its quaintness," says Herbert Morrison, "are safeguards for our modern British democracy."9 Had the House of Lordsbeen made democratic in composition and equal in powers with the House of Commons, the results would have been undemocratic. It is not the British temperamentto abolish root and branch what has been preserved for centuries. They have not even abolished monarchy, in this age of democracy, and why should they,when its retention does not make them the least democratic than the people of non-monarchical nations. Similar is the case with the House of Lords.(2) Commons' time saved: The Lords save the time of the House of Commons by initiating non-controversial Private Bills.127(3) Public opinion crystallized: Inter-position of delay is made possible. That enables the public to express its opinion. Accordingly the Bill is amended.(4) Bicameralism—a universality: Bicameralism is the order of the day and England like other countries cannot do away with its second chamber.(5) Full and free discussion: The House of Lords, as at present constituted, has its own advantages. When radicalism of the House of Commons is injectedwith conservatism of the House of Lords law becomes reason. The debates in the House of Lords are full and free which "can, and at times do stir publicopinion, or they may ventilate true public grievance." "Indeed," as Ogg observes, "on the ground that Britain has none of the safeguards offered by a rigidconstitution, by referendum procedure like that of Switzerland, or by judicial review like that in the United States, it is sometimes contended that she,beyond most other States, has need of a second chamber with full deliberative and revisory powers."10(6) Able membership: Although the attendance in the Lords is thin, yet it hardly means that its members are of ordinary calibre. Its members belong to thearistocratic section of the society. They are either rich people or retired Prime Ministers, Judges, Speakers, Ambassadors, Governors-General, Ministers,etc. They are men of fame. Lord Salisbury, Lousdonne, Asquith, Reading, Tennyson, Brickon head, Bryce, Curzon have been its members. They have helped inmaintaining the high standard of its debates. As Ogg remarks, "It is doubtful whether by and large, the actual working of the House of Lords is surpassedin its resource of intelligence, integrity and public spirit by the House of Commons...." The country is served from the red leather benches by men whohave built up its prosperity, administered its great dependencies, risen to its highest positions in law, diplomacy, war, state-craft and learning."11(7) Highest court of appeal: The House of Lords has well performed its judicial functions. Another Supreme Court would have to be established in case theHouse of Lords is abolished. No other second chamber has performed so important judicial function as admirably as the House of Lords.(8) Revisory chamber: It usefully does the examination and the revision of the Bills after they have been passed through all stages in the House of Commons.Thus defects and technical flaws of the Bill are removed in the House of Lords.128(9) Revolution unlikely: The House of Lords symbolises the fact that there is no likelihood of a revolution in Great Britain. So long as it possesses anypower, England will not face a revolution. It acts as a saucer where the passions are cooled.Thus the House of Lords has established itself firmly on the British soil. It has become an essential part of British culture. It has gone a long way inthe national life of the country. Its complete abolition may invite trouble. Its impotence does not prove its futility. In the opinion of Munro it appearsto be doing its job well. It "examines and revises non-financial measures. It insists, when the occasion rises, that ample time be given for a public discussionof such bills before they become parts of the law of the land. It compels sober second thought and gives opportunity for passions to subside."12 Ogg writes,"No student of English History needs to be told that upon a good many occasion the Upper House has interpreted the will of the nation, or the actualitiesof a political situation, more correctly than the lower, and that more than once it has saved the country from hasty and ill-considered legislation. Itis not altogether the sort of a second chamber that Englishmen would construct today if they were confronted with necessity of creating one de novo. Butsince it exists, and is so deeply woven into the texture of the national life, the proper procedure would be to simply reconstruct it on lines of the besttwentieth century thought."13Proposals for ReformWith the passage of the Act of 1949, the question of abolishing the House of Lords root and branch has been now finally decided for all times to come. TheLabour Party has reconciled itself to its existence. The question now is in what way to reform the House of Lords in respect of its composition and function.In fact since the passage of the Parliament Act of 1911, a number of schemes for reforming the House of Lords have been proposed.A brief reference to these schemes is as under:Bryce Proposals, 1918The Parliamentary Act of 1911, announced the intention of its authors to "substitute for the House of Lords, as it at present exists, a second chamber constitutedon a popular instead of an hereditary basis." In pursuance to this announcement a conference on the Reform of the Second Chamber was appointed in August,1917, with Lord Bryce as its Chairman. This conference consisted of 30 persons representing all shades of opinion. It submitted that "in so far as possible,continuity129ought to be preserved between the historic House of Lords and future Second Chamber, which obviously would mean that a certain portion of the existing peerageshould be included in the "new body." The Committee made the following proposals:(a) The membership of the House of Lords should consist of 327. Out of this three-fourth, i.e., 246 members, should be elected by the House of Commons bymeans of proportional representation. For this purpose the House of Commons should be grouped into thirteen divisions. The remaining one-fourth membersshould be elected from among the peers by a joint Standing Committee of the two houses.(b) The members of the Upper House are to be elected for twelve years, one-third retiring after every four years.(c) The House was to have no power over money bills. The question whether a measure is a money bill or not should be decided by a joint committee of 7 membersfrom each House.(d) Disagreement over ordinary bills should be referred to a joint conference of 30 members from each House.The Bryce proposals were not accepted either by the conservatives or the progressives. In 1922, the coalition government of Lloyd George submitted fiveresolutions embodying several features of the Bryce Plan, with one or two notable additions. These are known as Cabinet Committee Proposals.Cabinet Committee Proposals(i) The membership of the House of Lords should be about 350. (ii) In addition to the peers of royal blood, Lords spiritual and law-lords the House should contain: (a) members elected directly or indirectly, (b) hereditarypeers elected by their own order from outside their own ranks, and (c) members nominated by the Crown. The number of each element was to be fixed by lawas also their term.(iii) The House of Lords should not amend or reject money bills, (iv) The provisions of the Act of 1911 should not apply to any bill changing the constitution or power of the House of Lords as reconstituted.Nothing came out of these resolutions as the coalition government which had formulated them had to resign shortly afterwards.Clarendon's Scheme of 1929In December, 1929 Lord Clarendon introduced a scheme in the House of Lords to establish greater co-operation between the two Houses. The scheme was that130(i) 150 peers should be chosen by the body of peers; (ii) another 150 peers were to be nominated by the Crown for the duration of each parliament; (iii) a few life peers were to be created.But this scheme did not receive the support of the House and failed.Salisbury Reform Plan of 1933In December, 1933, Lord Salisbury introduced a bill in the Lords for its reform whose main provisions were as under: (i) the House of Lords should consist of 320 members; (ii) out of this, the peers were to elect 150 members from among themselves;(iii) another 150 members were to be elected from outside, the method of election to be decided by the resolution of both Houses; (iv) the rest of the members were to include the royal peers, law lords and a few ecclesiastics; (v) the money bills were to be interpreted by a joint committee of both the Houses under the chairmanship of the Speaker. This Bill was passed by the Houseof Lords in both its first and second readings. But Baldwin brought about the discontinuance of the discussion.Reform by the Labour GovernmentIn July 1934, the Labour Party openly proclaimed in a pamphlet 'For socialism and few other Labour Party's programme of action' that it would abolish theHouse of Lords if it continued to wreck the essential measures of the commons.The Labour Party came in power in 1946 and in 1947, introduced a Bill amending the Parliament Act of 1911. When the Bill was being discussed by the Houseof Commons, it was decided by the Labour Government to convene an all party round Table Conference to consider the relationship of the composition of asecond chamber to its powers. The conference proposed the following general principles: (i) The second chamber should be complementary to and not rival to the Lower House, and reform should be based on a modification of the House of Lords,existing constitution as opposed to the establishment of a second chamber of a completely new type based on some system of election, (ii) The revised constitution should secure that a permanent majority is not assured for any one party.131(iii) The present right to attend and vote based solely on heredity should not by itself constitute a qualification for admission, (iv) Members should be styled "Lords of Parliament" and would be appointed on grounds of personal distinction or public service, (v) Women should be capable of being appointed Lords of Parliament in the same way as men.The conference, however, failed. The Government proceeded with its bill of reform against the will of the Lords. On June 9,1948 the Lords rejected the Bill.It was introduced for the second time on September 20, 1948 and was carried through under the Parliament Act of 1949.Life Peerage Act, 1958 and Peerage Act, 1963The Life Peerage Act, 1958 empowered Her Majesty to appoint Lords of Appeal in ordinary and confer on any person a peerage for life. The Act made womeneligible for life peerage. The Act of 1963 enables any hereditary peer to disclaim his peerage and thereby become eligible for election to the House ofCommons.In 1967 the Labour Government proposed changes in the composition of House of Lords and also reduction in its powers but nothing came out of it.Future of the House of LordsThus from time to time several plans have been proposed to reform the House of Lords; but none of the above mentioned plans was accepted. The House of Lordscontinues to be a hereditary chamber of over 1100 members, of course, with power curtailed by the Parliament Act of 1911. It may be noted that none ofthe proposals referred advocates the abolition of the House of Lords. They suggest certain reforms in respect of its composition and functions. These proposalsagreed on three things: (i) that the membership of the Lords should be reduced to about 300, (ii) that some elective element should be introduced in thecomposition of the House, and (iii) the powers of the House of Lords and its relations with the House of Commons should be more or less fixed by the ParliamentAct of 1911. In fact, the dilemma is that no proper substitute has yet been found out for the House of Lords. As we have already pointed out, none of theparties wants its abolition. What the Labour Party wants is a second chamber strong enough for revision and weak enough to be rival to the Commons. HerbertMorrison writes, "While willing to respect the House of Lords for the value and standard of its debates, and for its capacity as a chamber of legislativerevision, we would not tolerate from such an institution any undue interference with the will of the House of Commons or of the people."14 In February,1321958 Prime Minister Winston Churchill wrote to Attlee that the question of the House of Lords might be taken up at an inter-party conference. To this suggestion,Attlee replied that "in view of the fundamental cleavage of opinion in 1948 on what is the proper part to be played by the House of Lords as second chamberunder the constitution, we have come to the conclusion that no useful purpose would be served by our entering into such a discussion."15The question of reform of the House of Lords, therefore, is still perplexing. What powers should a second chamber have and how should it be composed?- aredebatable questions to which no satisfactory answer is possible and "given the difficulty of finding an answer is not the present House of Lords, withits powers reduced as in 1949, destined to serve for many decades?"Since the passage of the Act of 1949, no vociferous demands for its reform have been made. Laski remarks, "The House of Lords is quite safe from rough destructionbut it is not safe against inward decay. Its danger is not in assassination but atrophy, not abolition but decline."References1. The disqualification on this ground is waved if bankruptcy is annulled or if a certificate is issued that bankruptcy was due to misfortune and not misconduct.2. The disability regarding hereditary peeresses was removed in 1963.3. Before 1971 members of the Lords were not paid any salary or allowances. However since 1971 each lord got allowance of ? 8.82 per day for attending thesessions. The Law lords get regular salary.4. Webbs, A Constitution for Socialist Commonwealth of Great Britain, p. 63.5. Finer, Theory and Practice of Modern Government, p. 407.6. Quoted, Ibid, p. 48.7. Jennings, The British Constitution, p. 90.8. Rowse, A.L., The House of Lords and Legislation, Poli. Quar,. July-Sept. 1963, p. 385.9. Morrison, Government and Parliament, p. 194.10. Ogg, English Government and Politics, p. 338.11. Ibid, p. 357.12. Munro, Government of Europe, p. 134.13. Ogg, op. cit., p. 358.14. Morrison, Government of Parliament, p. 194.15. Finer, Governments of Great European Powers, p. 200.1338 THE BRITISH JUDICIARY"No man is punishable... except for a distinct breach of law established in the ordinary courts of the land."—A.V. DiceyThe present-day organisation of the English Courts is relatively modern. Though the courts themselves are much older, they were entirely reconstituted bythe Judicature Acts of 1873-1876, as amended by the Act of 1925. Prior to 1873 the judicial organisation of England was in a state of chaos, with numerouscourts possessing special functions, archaic procedures and overlapping jurisdictions. The Acts of 1873 systematized and recognized the courts and simplifiedthe judicial procedure.Features of British Judicial SystemThe judiciary occupies an important place in the actual administration of England. English justice has been the pride of Englishmen for centuries together.This is all due to the various qualities and outstanding features which the British judiciary possesses today. These features may be briefly enumeratedas follows:(i) No single form of organisationThere is no single form of judicial system that prevails throughout the entire United Kingdom. There is one arrangement of courts for England and Wales,another for Scotland and still another for Northern Ireland. The law of Scotland differs both in principle and procedure and accordingly the organisationof courts is also different. The judicial system of Northern Ireland also is unlike the English system.(ii) No separate administrative courtsSecondly, there is no separate set of administrative courts in England as there are in France and other continental countries. In these countries 134there are two distinct types of law, ordinary and administrative, and two distinct types of courts. In administrative courts administrative law is applied,whereas in the ordinary courts ordinary law is applied. In England there is a rule of law which implies absence of administrative law. The English commonlaw recognises no distinction between the acts of government officials and ordinary citizens. All are amenable to the same ordinary courts and to the samelaw, though the system of administrative adjudication is inevitably developing.(iii) Integration of courts in England and WalesThe third main feature of the British judicial system is the unity which prevails in the organisation of courts. The judicial system is more integratedthan it was three generations before. Furthermore, it is very much simple and more unified. Formerly, there were in England civil courts, criminal courts,courts of equity, courts of common law, probate courts, divorce courts and ecclesiastical courts. Very often it was difficult to determine which courthad jurisdiction: each type of court had its peculiar forms of procedure. This undesirable state of affairs was reformed between 1873 and 1876 when theentire judicial establishment was reconstructed on simple and mono logical lines. Now practically all the courts have been brought together in a singlecentralised system under the direction of the Lord Chancellor.(iv) Absence of judicial reviewIn England there is no system of judicial review. No act of the Parliament can be declared ultra vires by any court of law. Parliament is supreme and thecourts have to apply whatever law has been made by it. They have no authority to examine its validity. In short unlike the United States there is no courtin England which can sit upon the Parliament and examine the validity of its laws.(v) High quality of justiceEngland can be proud of the high quality of justice dispensed by her courts. The British courts operate under salutory principles and follow simple procedure.Cases move far more rapidly in British than in American or Indian courts. The rules of procedure are made in England not by the parliament composed oflaymen but by a special "rule committee" consisting of the Lord Chancellor and ten other persons trained in law. The rules repose solidly on the principlethat every action should proceed promptly to a decision on its merits, and that the parties ought never to be turned out of court because of some errorin procedure which does not involve the merits of the controversy. There is no135manhandling of witnesses. Cases are heard and decided with fairness and speed. The calenders of the courts do not become closed. The judges are in generalof a high order of ability, independence and integrity. They are appointed for life and removal can be made only on joint address of both the Houses ofParliament. The salaries of the judges are attractive. Further, dignity and distinction are conferred by the practice of knighting judges upon their appointment.All this helps secure and retain brain, character and energy, and is largely responsible for the favour able reputation which the British courts enjoy,both at home and abroad.(vi) Jury systemEngland is the ancestral home of the jury system. It was there that the grand jury and trial by jury first became regular agencies of enquiry and adjudication.In the trial of all serious crimes a trial by jury may be demanded by an accused in all English courts except the lowest and highest. The charge is framedby the judicial clerk with the aid of the presenting solicitor and the trial is held by the judge with the assistance of the jury. Moreover, the jury inEngland has not been overburdened by extending it to the trial of unimportant trial disputes. In the United States the jury system has been overworkedand overburdened.(vii) The guardian of human libertiesAs we have seen earlier in England the liberties of citizens. are guaranteed not by any parliamentary statute but by the common law of the land. The civilrights, e.g., freedom of speech, freedom of press, freedom of worship, etc., guaranteed by the usages and traditions are enforced by the courts. Theseusages are in reality more effective than any written constitutional anisation of British JudiciaryThe present day organisation of law courts in England flows from the judicature acts of 1872, as amended by the Act of 1925. There are two kinds of courts:Criminal and Civil.A. Criminal Courts(i) Justices of the Peace (J.P. s): The lowest rung of criminal courts is the Justices of the Peace. In England when a person is charged with a crime heis brought before one or more Justices of the Peace or, in the large towns, before a stipendiary magistrate. The stipendiary magistrates receive regularsalaries and are appointed by the Home Secretary in the name of the Crown from among the barristers of seven years standing.136The Justices of Peace are honorary and are appointed by the Lord Chancellor. They have no legal training and are laymen taken from all social classes andprofessions. The magistrates have jurisdiction over the same classes of cases as Justices of the Peace.The jurisdiction of the Justices of the Peace and magistrates extends over minor misdemeanours which are punishable by a fine up to ? 9 and simple imprisonmentof not more than fourteen days. More serious cases are tried by a court called the Court of Summary Jurisdiction consisting of two Justices of the Peaceor stipendiary magistrates. In the former it is known as the Court of Petty Sessions. This court can impose a fine of not more than ? 100 or in certainspecified cases ? 500 or a sentence of imprisonment up to six months and in certain cases a year. The accused can demand a trial by jury if the offenceis punishable by imprisonment for more than three months. These courts function without jury.(ii) Court of Quarter Sessions: Appeals from the Lower Courts may be taken to the Court of Quarter Sessions which consists of all the Justices of the Peacein the country meeting four times a year and it is for this reason that it is called "Quarter Sessions." It also exercises original jurisdiction in seriouscriminal cases but not serious enough to warrant holding the accused for the Assizes. Serious cases like those of murder treason etc., do not originatein this court. Appeals are ordinarily taken to the court of criminal appeals. This is, in fact, the court in which the majority of other grave crimes aretried.(iii) Court of Assizes: In the hierarchy, above the Justices of the Peace are the Assizes Courts. They are branches of the High Court of Justice. They areheld in the county towns and in certain cities three times a year. Each such court is presided by a judge or sometimes two judges of the High Court ofJustice who go around on circuits. The court of Assizes functioning in London is called "Central Criminal Court" and in popular parlance it is known as"Old Baley". The jurisdiction of the Assizes includes all the grave offences, for example, armed robbery, kidnapping, murder. The Assizes Court is assistedby a jury of twelve county men. Juries are chosen out of persons under 60 years of age owning property worth at least ? 10 p.a. or those owning housesworth at least ? 20 per year of rental value. The Jury gives its verdict on facts, i.e., whether the accused is guilty or not. If the Jury finds the accusednot guilty he is forthwith discharged. If he is, on the other hand, found guilty the judge pronounces the sentence. If the Jury cannot agree, a new trialmay be held with a different set of juries. Criminals are137committed to the Assizes by the J.P. s or by the Public Prosecutor after preliminary examination. The system of grand jury has been abolished ' in England.The Court of Criminal Appeal was set up by an Act of 1907 to hear appeals from the verdict of a jury in a criminal trial. Formerly no such appeal couldbe preferred, but now a convicted person may, as a matter of right, appeal to the Court of Criminal Appeal. The court is composed of three judges at theminimum drawn from the jury and is presided over by the Lord Chief Justice. If the Court thinks that there has been a serious miscarriage of justice, itcan modify the sentence or even quash the conviction altogether. The judgment of the Court of Criminal Appeal is final except in rare instances when anappeal can be taken to the House of Lords upon a point of law which the Attorney General certifies to be of public importance. Under no circumstances canthe prosecutor appeal.B. Civil Courts(i) County Courts: The County Courts are the lowest courts in civil matters which decide disputes in which the amount involved is not more than ? 400 (?500 if trusts, partnerships or mortgages are involved. There are about 500 county courts in England and Wales. They function in 75 circuits, and justiceis administered in them by county court judges t who are appointed by the Lord Chancellor from among barristers of at least seven years' standing. Theprocedure in a county court is simple: many cases are decided out of court. In every place where a county court sits, there is an official known as theregistrar who disposes of the great majority of cases by influencing withdrawals or affecting compromises, without even referring them to the judge atall. A case involving not more than ? 30 may be settled by the Registrar of the county court. It may be noted that the county courts are not a part ofany county organisation, and the area of their jurisdiction is a district which not only is smaller than a county but bears no relation to it. The countycourt of the present day were established by a parliamentary statute of 1846 which replaced the ancient courts of the hundred and county. The judges andregistrars of the county courts are paid out of the national treasury and hold office during good behaviour.(ii) Supreme Court of Judicature: The next tier above the county courts is the Supreme Court of Judicature. It is divided into two branches:(a) High Court of Justice, and(b) Court of Appeal.138(a) The High Court of Justice has three divisions: (i) The Queen's Bench Division, (ii) The Chancery Division, and (iii) The Probate, Divorce and Admiralty Division.In each of these three divisions judgment is administered by a bench of judges, sometimes singly, sometimes in trios. The Queen's Bench is presided overby the Lord Chief Justice of England and consists of seventeen other judges. It hears Common Law cases and handles majority of the cases coming to theHigh Court viz. election petitions, applications for the writs of habeas corpus, debts and damages of unlimited amount.The chancery division is presided over by the Lord High Chancellor and is served by eight other judges. It hears the cases which formerly belonged to theCourts of Equity. In other words, it deals with such cases in which the remedy or law is inadequate. Cases under company law, appeals in income tax cases,bankruptcies, execution of trusts for deceased persons come to it.The Probate, Divorce and Admiralty division is presided over by a President and is served by ten other judges. They hear particular types of cases as thename itself shows. It is said this Division deals with wills, wives and wrecks.Any of the judges mentioned above may sit in any division and all may apply the common law or equity, in spite of their usual specialisation.(b) The Court of Appeal receives appeals from both the county courts and the three divisions of the High Court. Appeals can be taken only on question oflaw. There is no appeal on question of fact, though an application may be made to the Court of Appeal to order a new trial. This court is composed of theMaster of the Rolls and seventeen other puisne judges. The Court of Appeal is an appellate court which receives appeals both from the county courts andthe High Court of Justice. In the Court of Appeal no witnesses are heard, and there is no jury. The Court of appeals sits in London.It may be noted that the High Court has both original and appellate jurisdiction. On its original side it has jurisdiction in cases in which the amountinvolved is sufficiently large. On its appellate side it entertains appeals from the county courts.139From the Court of Appeals, the dissatisfied litigant can prefer an appeal on questions of law to the House of Lords. The hierarchical order of the civilcourts runs as county court, high court, court of appeal andHouse of Lords, whereas that of criminal courts is — court of summary jurisdiction, quarter session court, assizes, court of criminal appeal and House ofLords.The House of Lords as a CourtIn the preceding chapter we had the occasion to remark that the House of Lords is not only a law-making body but is also a judicial body. From what hasbeen said above of the judicial organisation in England it is clear that both civil and criminal cases end only in the House of Lords which is the lastbody to say the last word in these cases. It is, therefore, appropriate to say a few words about the House of Lords as a court.The House of Lords, as we have seen, is unwieldy house consisting of over 1100 members but all the members of the House do not take part in its judicialbusiness. The appeals which come to the House of Lords are heard by Lords, namely, the Lord Chancellor and twenty one since 1990 Lords of appeal in ordinary.Generally 3 Lords constitute a bench though in some cases even five lords may sit as a bench. These law lords need not be hereditary peers. The Lord Chancelloris the presiding officer of the House of Lords and a member of the cabinet. The law lords are men of high judicial distinction who are made life peersso that they may exercise judicial functions which belong to the House as a whole. These law lords, it may be noted, constitute for judicial purpose thewhole House of Lords and not just a committee of it. They give judgment in the name of the House of Lords and sit and pronounce judgment at any time, regardlessof whether parliament is in session. It is the only common court for the entire country which decides appeals against the decisions of the highest courtof Scotland and Northern Ireland.The Judicial Committee of the Privy CouncilWe may conclude our discussion of British Judicial System by describing one other court the Judicial Committee of the Privy Council. It is the final Courtof Appeal in cases which come from the courts of the colonies and from certain of the dominions, as well as from the ecclesiastical courts in England.Formally, it is an administrative body to advise the Crown on the use of its prerogatives regarding appeals from the courts of the colonies, and the Commonwealth.It, as it stands today, was constituted by a Parliamentary Statute of 1833. It consists of the Lord Chancellor and former incumbents of his office, the21 law lords already mentioned, the Lord President of the Privy Council, the privy councillors who hold or have held high judicial positions, and varyingnumber of judicial persons connected with overseas superior140courts. Altogether the council consists of about thirty jurists in all, but the work of the judicial committee is actually performed by the Lord Chancellorand the 21 law lords and one or two judges from the overseas.The judicial committee of the Privy Council is not a court in the usual sense of the term but only a body to advise the Crown and so it does not renderjudgments but only gives advice to the Crown. It inherits its authority from the right of British subjects abroad to appeal to the king in council to disallowthe decisions of the supreme courts in the colonies. The appeal goes straight to the Judicial Committee which recommends to the Crown that the appeal beaccepted or rejected. The committee's recommendations are invariably accepted by the Crown through an order-in-council in which the recommendation is givenvalidity as a judgment. There is no appeal from the decisions of the judicial committee, hence it is a Supreme Court within its own field of jurisdiction.And this field is one of more geographical extent than that of any other judicial or quasi-judicial body in the world.The Privy Council differs from the House of Lords in the following respects: (i) The Privy Council includes some judges from the colonies or dominions but no such judge is included in the House of Lords silting as a Court. (ii) The Privy Council does not pronounce its judgments, it only advises the King. In other words, it is an advisory body, and not a judicial body. TheHouse of Lords is a Court for all intents and purposes. (iii) The House of Lords is bound by its former judgment, but the Privy Council is not. It may change its opinion. (iv) The Privy Council gives a unanimous advice. It does not make any mention of minority advice. The House of Lords in its judgment may refer to the minorityjudgment. It may be noted, however, that not all cases arising in the colonies or dominions can be brought to the Privy Council on appeal. Under the Statute of Westminster,1931 any dominion may shut off such appeals. Moreover, no appeal can be brought unless leave to appeal has been first obtained from the judicial committeeitself. Such leave is hardly given in criminal cases; in civil cases it depends on the character and importance of the issues involved.The Coroner's CourtIt is a relic of the past. The Coroner was designated as 'Crowner' in Shakespearian times. He is appointed by the county or Borough council.141He is equipped with legal or medical qualifications. He orders postmortem and holds an inquest if the cause of the death is not natural. An inquest is conductedby him with the assistance of jury of 7 to 11 persons. If 'prima facie' case is established the accused is sent for trial. Even cases of suicidal deathare dealt with by him. He can examine witnesses to come to conclusion. In London he investigates into the cases of fire and arson. Besides, if treasureis found hidden underground; he conducts inquest and if no owner is found he assumes charge of the treasure on behalf of the Crown. In fact Coroner's Courtis an innovation. No such court exists in India for instance.1429 LOCAL GOVERNMENT IN ENGLAND"The Local Assemblies of citizens constitute the strength of free nations."—De TocquevilleDemocracy is said to be a government by the people. It is in the arena of local politics that people must easily team their first lessons in the art ofgoverning. Until we learn to govern, or be governed by, our own neighbours, we cannot successfully govern people at a far off distance. "The local assembliesof citizens," wrote De Tocqueville, "constitute the strength of free nations. Town meetings are to liberty what primary schools are to science, they bringit within the people's reach, they teach them how to use and how to enjoy it. A nation may establish a system of free government, but without the spiritof municipal institution it cannot have the spirit of liberty." Local government is a school for democracy. Besides being a school for democracy, the localgovernment lightens the burden of the central government. There is no denying the fact that the functions of the modern State have increased manifold.It now not only protects the country from foreign aggression and maintains peace and order but also performs varied functions for social welfare. It issaid that the state not only protects and restrains but also fosters and promotes. Hence decentralisation of power is necessary for administrative efficiencyand proper discharge of these functions.History of Local Government in EnglandWe shall make only a brief survey of the evolution of English local government. The English system of local government is the result of long evolution,mostly unguided and unplanned. Until recent times its machinery was not organised in accordance with any particular theory or plan. During the Anglo-Saxontimes the country was covered with shires, hundreds, townships and boroughs. Each of these enjoyed large143local independence, for monarchy being weak the central control was not strong. The Norman conquest changed the things considerably. The shires became counties,the hundreds disappeared, the townships for the most part became feudal manors while the boroughs became chartered municipalities. New units known as parishesmade their appearance taking the place of the old townships. The Norman kings brought the local bodies under considerable closer control by the nationalgovernment. These three principal areas of local government—the county, the borough and the parish which assumed their shape during the Norman rule, continuedto exist during the Tudor, Stuart and Hanoverian periods. For hundreds of years, changes were relatively few. Central control was at times stronger, andat times weaker. The administrative work of the county was entrusted to Justices of the Peace who were appointed by the Crown. The boroughs were governedby corporations. The parish, which was formerly an eccelesiastical unit, became in course of time the unit of local administration. In days of Tudor andStuart autocracy, when Parliament was never called into sessions for long stretches of time and no parliamentary elections were held, the local bodiescontinued to function and local elections continued to be held. In short, though much of the local democracy was sapped away but the spirit of local self-governmentwas never wholly extinguished, during the course of this long interval between Norman times and the eighteenth century.At the beginning of the nineteenth century, the face of England changed with the coming of the Industrial Revolution. The coming of the factory system renderedthe old scheme of local government obsolete. New industrial centres grew up which demanded better police protection, better roads and better sanitation.The old existing local bodies were unable to meet the demands of the new times. The parliament created new administrative bodies adding to the existingones. The result was that there was a chaos of local areas, authorities and jurisdiction since the new administrative bodies were created without any plan.This practice of multiplying local bodies was the most significant feature in the evolution of English local government during the early years of the nineteenthcentury. "There were justices of peace, overseers, guardians, vestry men, church wardens, mayors, aldermen, councillors, and commissioners of a dozen sorts.There were borough rates, poor rates, school rates, sanitary rates - all levied periodically upon the bewildered tax payers. At one time it was estimatedthat there were more than 27,000 different local authorities in England and that144eighteen different kinds of local taxation were being levied on the people. The jungle of jurisdiction had become so dense that nobody could find his waythrough it."1With the democratization of the House of Commons started in 1832, the work of the reform and democratization of the organs of local government could notbe held back longer. As it was in the democratization of the House of Commons, similarly, in the field of local government reform was cautious, gradualand piecemeal. A start was made in 1835 when the parliament enacted the Municipal Corporations Act which fixed the basis for all the organisations of theBorough, they retain to this day. The Act applied to a total of 178 boroughs and the new arrangements were a great improvement upon those previously existing.A uniform style of organisation was given to the boroughs sweeping away thereby all charters, privileges, customs, usages and rights inconsistent withthe Act Municipal oligarchy was replaced by municipal democracy, the sphere of municipal autonomy was defined a new giving increased powers of supervisionand control to the government at London.However, no other significant legislation on local government was passed during the first half of the nineteenth century. County government too was aristocratic2and antiquated but its reform was not undertaken along with the reform of borough administration. It was the Local Government Act of 1888 which reorganisedcounty administration in England. It transferred the administrative powers heretofore exercised by the justices of the peace to elective county councils.In each county and county borough, a council elected by the people was to have broad powers of government. "The last entrenchment of class government hadbeen stormed; the principles of representative democracy had now been extended over the whole field of English administration."Then, in 1894, came the District and Parish Councils Act which swept away most of the multifarious special districts and provided for the creation of new,unified local areas in their place. This Act divided every county into urban and rural districts and every district into parishes. To the parish councilswere transferred all of the civil functions of the vestries; while to the district councils, whether rural or urban, was given control of sanitation, highwayand various other matters.The Acts of 1888 and 1894 put the local affairs of England in the hands of popularly elected bodies and secondly, they contributed to the145progressive simplification of the local government system by gradually abolishing a number of local government authorities. In 1929, a comprehensive localGovernment Act was passed which made it possible to combine or abolish a large number of county districts. The Act also made new arrangement for grantingthe local bodies financial assistance from the national exchequer. Finally, in 1933, a Local Government Act was passed which consolidated into a singlestatus the powers and functions of the various local authorities. The many over lappings and anomalies which had accumulated during the preceding 100 yearswere eliminated and the local administration in England was put on a firm basis. However Jackson opines that local government as applied to England ishardly capable of precise definition. The term, according to him, has certain implications. It is concerned with localities and not with the country asa whole, it must for this reason be subordinate to the national government. The term further implies some jurisdiction or activity of a public nature,it implies also the existence of authorities empowered to exercise that jurisdiction and authority.Local Areas in EnglandAs a result of the consolidating process that culminated in the Local Government Act of 1933, there arc five principal areas of local government in Englandtoday, namely, the county, the borough, the urban district, the rural district, and the parish. The whole country is first divided into counties. The countiesare divided into urban and rural districts. The rural districts are divided into parishes. A borough is any area which has received a municipal charier.London has a special government of its own. A brief description of these areas is as follows: The County: The county is territorially the largest areaof local government. There are fifty-two historic counties and sixty-two administrative counties. It is necessary to differentiate between the historiccounties and administrative counties. The historic counties, originating from Saxon Shires, serve as constituencies for parliamentary elections and asareas of judicial administration with their justices of the peace. Along with the justices are found in each historic county a lord lieutenant and alsoa sheriff. Both are appointed by the Crown. The sheriff serves as chief returning officer in carrying out the election of county members to the parliament.The lord lieutenant, formerly commander of the county militia, now has little to do except maintain county records and recommend nominations of the personsqualified as justices of peace to the lord chancellor. From the146viewpoint of administration, the historic counties have no value. They neither have any council nor are they used as units of local administration.The administrative counties are the areas of genuine local self-government which were created by the Act of 1888. In many instances they are identical inarea with historical counties, but in some they are not. Within most of the administrative counties is an incorporated area endowed with a legal personality.It can sue and be sued in its own name.The governing authority of an administrative county is a county council which consists of a chairman, aldermen and councillors. The councillors are electedin single-member districts, for a term of three years. The suffrage qualifications are the same as those for parliamentary elections. The strength of councillorsvaries according to the population of the county. The councillors elect one-third of their number as aldermen who may be elected either from amongst thecouncillors or from outside. If councillors are elected to be the aldermen, special elections are held to fill in the vacancies caused by their selection.The aldermen and councillors together elect the county chairman from their own number or from outside.The county council carries numerous functions. Mainly its functions are:(i) to decide the policy and make bye-laws for the county;(ii) to supervise the work of rural district councils;(iii) to pass the budget of the county;(iv) to maintain county buildings;(v) to provide asylums and reformatories;(vi) to protect streams from pollution; (vii) to grant licences (except liquor licences); (viii) to manage elementary and secondary education;(ix) to administer poor-law;(x) to appoint administrative officials;(xi) to standardise the units of local weights and measurements; (xii) to prevent epidemics among animals; (xiii) to construct houses and see that the rules are observed in this regard; and (xiv) to construct and repair the bridges and roads.The council meets regularly four times a year, but may meet oftener if urgency requires. Most of its work is done through committees on education, on publichealth, on finance and on old age147pensions. Every county is staffed with permanent officials such as county clerk, treasurer, health officer, surveyor, and various other functionaries whoare chosen on non-political basis by the county council.The Borough: The borough is a special unit of local government which is simply a town with a charter. Any urban or rural district which desires to becomea borough makes a petition to the king which goes to a committee of the privy council, which institutes an inquiry, and upon finding favour ably, tentativelypublishes the charter in the London Gazette. If within a month of its publication no protests are received either by a local authority or by one-twentiethof the owners of rate payers of the area affected, an order in-council is issued granting the charter and fixing the boundaries of the new borough. Ifprotest comes forth, the borough can be created only by an Act of ParliamentThe borough is governed by a borough council constituted like a county council. The Borough council consists of councillors, aldermen and a mayor. The councillorsare elected directly by the people for a term of three years, one-third of whom retire each year. The councillors choose one-third of their members tobe aldermen who may be elected from amongst the councillors or from outside persons qualified to be councillors. The term is six years, and one-third retireafter every two years. The councillors and aldermen together elect the Mayor for one year. He is the presiding officer of the borough council and its officialrepresentative on ceremonial occasions. He has no power to appoint or remove the borough officials, or to veto the borough ordinances. He does not getany salary. Naturally he must be a man of wealth and leisure.The borough council is, in the fullest sense of the term, the government of the borough. Its functions include making bye-laws or ordinances relating toall sorts of matters; acting as custodian of the borough fund; levying borough rates on the rental value of real property; drawing up and adopting theannual budget; and exercising control over all branches of strictly municipal administration. It can borrow money with the previous consent of the centralgovernmentThe council meets monthly, fortnightly or weekly, as business requires. Much of its work is done through committees. Practically all matters brought upin the council are referred to some committee. The council usually adopts the recommendations of the committee. The routine work of administration is carriedby permanent staff consisting of expert, professional heads of departments and subordinate148employees. The officials are chosen by the council, but the subordinate employees are appointed by the head of the department concerned.As soon as any borough attains a population of 75,000, it may ask the Ministry of Health for a provisional order giving it a county borough status. A countyborough differs from a Municipal borough described above not in fundamental function or structure, but only in that whereas the latter is a part of theadministrative county in which it lies, the former is practically exempt from county jurisdiction and is given most or all of the powers of a county. Notall the municipal boroughs choose to become county boroughs. Nevertheless, the number of county boroughs has arisen from 61 in 1888 to 83 today. The largestcounty borough is Birmingham which has a population of 1,118,500; the smallest is Canterbury with a population of 28,000.Besides Municipal Boroughs and county Boroughs, there are also Parliamentary Boroughs. The Parliamentary Boroughs are the constituencies demarcated forelection to the House of Commons. Like the Historic Counties, they have no value from the viewpoint of local administration. They are not units of administration.The Districts: The Districts are of two types—Urban Districts and Rural Districts. Urban districts are the thickly populated areas which are created bythe county council with a view to enable the areas to get better water supply, adequate fire protection and improved sanitation. Whenever any part of anadministrative county becomes thickly populated, the county council may organise that area into an urban district to adequately satisfy the special needsof that area. An urban district may in time become a borough. As a district it has no charter but has certain special powers over sanitation, housing,licensing and other matters of particular importance. There is an urban district council consisting of at least one councillor from each parish in thedistrict. There are no aldermen in the district council. The council elects its own chairman.The rural district is a group of old rural parishes. There are in England and Wales 638 rural districts in all. Each district has a council consisting ofelected councillors and a chairman. The term of the councillors is three years, one-third retiring every year. The chairman is given the powers of a justiceof Peace. The council is responsible for matters like sanitation, water supply and public health. It has the power to levy rates and set up committees.It also appoints permanent salaried officials to carry on the routine administrative work. The importance of the rural district has diminished as Englandhas ceased to be a rural country.149Parish: Parish is a sub-division of the rural district. It is the smallest unit in the hierarchy of local government in England. Where the population ofa parish is less than 300, the local affairs are managed by a primary assembly in which all persons on parliamentary register are entitled to be present.If the population is more than 300, the parish also has a parish council consisting of five to fifteen members elected for three years. The duties of theparish council or primary assembly are not very prominent. The council or assembly appoints the "managers" of public elementary schools, the clerk, thetreasurer and such other minor functionaries as are needed. It also provides for public works, recreation grounds and public libraries. The higher authoritiesmay hand over to them the care of water supply, the lighting of the village and the repairing of footpaths.The Government of London: The Local administration of the States' Capitals usually has to be unlike that of the other cities of the State. Just as the localadministration of New Delhi is not similar to that of Bombay or Calcutta, likewise the administration of London is different from that of other citiesof England. For the purpose of local administration London may be divided into three parts : city of London, county of London and Metropolitan London.City of London: The city of London is an area of about one square mile located in the heart of London. It is primarily a business and financial centre.It is governed by a corporation made up of the freemen of the city. The corporation governs the city through a mayor and three councils or courts, namely,the court of aldermen, the court of common council and the court of common ball. The court of common council is the real governing body. It consists of206 councillors, 26 aldermen and one lord mayor. The aldermen and councillors are elected directly by the citizens of the city. For the purpose of electionthe city is divided into twenty-six wards, each ward returning according to its size, a number of councillors. The councillors are elected annually whereasthe aldermen are elected for life. The senior-most among the aldermen becomes the Lord Mayor. The aldermen along with the Lord Mayor form the court ofaldermen. The court of Common Hall is, in effect, a primary assembly of the freemen, liverymen and municipal officers, and charged with duties of an electivenature only. The court of common council is the really important governing authority and looks to the sanitation, health, water supply, electricity, roads,etc., of the city. It carries its administrative work through standing committees and permanent officials.150The County of London: The county of London covers an area of over 100 square miles and is divided into 28 metropolitan boroughs, each having a council,a limited range of local self-government but under a good deal of control of the administrative county of London. The London county council bears a generalresemblance to other county councils. It consists of 124 councillors and 20 aldermen. The councillors are elected by popular vote for three years, thesuffrage being the same as in other municipal elections. The aldermen are chosen by the councillors for six years. Together they elect each year a chairmanof the council.The powers of the London County Council are extensive. It is the sole authority with respect to main sewers and sewage disposal, fire protection, tunnelsand ferries and bridges. It looks to the street improvements which are metropolitan in character. It also makes public health regulations. It has alsothe power with respect to the construction of and operation of tramways. It has undertaken several housing schemes involving the demolition of slum areasand the erection of workmen dwellings. It is responsible for the maintenance of larger London parks and for providing public recreation. It has also comprehensivefunctions in the matter of education, elementary, secondary, and technical.The Council appoints committees to do the executive work which devolves a large part of the work on permanent officials.Metropolitan London: Flanking the city of London on all sides there are 28 metropolitan boroughs which in organisation and powers cross between ordinaryboroughs and urban districts. The metropolitan boroughs are very unequal in size. Each borough has a borough council consisting of councillors, aldermenand a mayor. The councillors are elected by the residents of the borough whose names appear on the parliamentary electoral list for a period of three years.The councillors choose the aldermen to one-sixth of their number for a period of six years, one-half retiring every three years. The Mayor is chosen asin a Municipal Borough. The borough council has charge of local street-building, paving, lighting and cleaning. It also undertakes construction and maintenanceof subsidiary sewers, the enforcement of health regulations, and the building of workmen's residences. It has various other functions subject to the supervisionof the authorities.Central Control over Local Government in EnglandIn England there is no single central department whose business is to control the local authorities. There are as many as six central 151departments which deal with local authorities, namely, the Ministry of Health, the Home Department, the Board of Education, the Ministry of Transport, theBoard of Trade and the Electricity Commissioners. The Ministry of Health has general control over water supply, sanitation and overall public health includingthe new national health service and the approval of local borrowings. The Home Department has control over police administration. The Board of Educationoversees the local education authorities. The Ministry of Transport has supervisory authority over tramways, ferries, docks and harbours. The Board ofTrade supervises the development of water power. The Electricity Commissioners supervise electric lighting. Of all these, the Ministry of Health has gotthe widest amount of control. Thus the local authorities in England have to deal not with one central department but with many. And in some cases the controlmay be overlapping as the extent of supervisory jurisdiction which these departments possess is not in all cases precisely defined.The central Government controls the local government through the following methods: (i) By making laws: The local government derives all its powers from the parliament which may, at any time, reduce or increase' these powers. (ii) Judicial action: If any local authority does an act which is violative of any rule or exceeds its powers, such an act may be declared ultra vires bythe courts. The courts can even fine the local authority. (iii) Through orders: The controlling departments of the central government may issue orders to the local authorities. Many of the appointments are approvedby the relative department (iv) Grant-in-aid: The Central Government issues charter to a local body before it comes into existence and lays down its powers. (iv) Stopping Grants: If a local body does not perform its functions satisfactorily, the central government may stop its grants. Sometimes, it may takeover the administration of the local body in case it is not running well.Broadly speaking on the basis of central-local relations the local government system of the world is classified into three categories. Firstly, there isthe American type under which the local authorities are almost completely autonomous, there being hardly any control or supervision from the centre. Secondly,there is the continental type prevailing in France and other continental countries where the local152authorities are subject to strict central supervision and control even in the exercise of those powers which have been delegated to them. Thirdly, thereis the English type which occupies a middle position between the above two systems.The powers of the English local authorities are defined and limited by the Acts of Parliament. If the local authorities go beyond these powers, their actionbecomes illegal and the central government may obtain a writ requiring any legal duty neglected to be repaired. The central government may also invalidatelocal ordinances. But the central government intervenes only if the local authorities act beyond their powers. So long as they remain within their propersphere, they are left free to manage their affairs as they like. No central sanction is necessary for their budget or any other resolution. The only thingthat the central government demands is that they should observe a minimum standard of efficiency.In recent years, however, the central control over local authorities has increased considerably. This control has come about gradually and slowly in deferenceto no theory and according to no fixed plan. The central government has posted its control now in one direction and now in another, without correlatingthis control under a single department. As we have seen above, the central administrative authorities that deal with local bodies are many, and naturally,therefore, the amount of control exercised by these authorities not only varies widely but often is confusing. The Ministry of Health supervises vaccination,sanitation, water supply, and poor relief. It audits local accounts and handles most applications from local units for permission to borrow money. Butthe Home Office administers the police system and decides whether the standards laid down by it have been so complied with as to entitle the local bodyto receive half of the cost out of national funds. The Board of Education supervises the management of elementary, secondary and technical schools supportedin whole or in part by national subsidy. The Ministry of Transport has supervisory jurisdiction over roads, tramways, harbours and docks. This dispersionof central supervision and control among so many agencies causes confusion to the administrator.Through grants-in-aid the English Government has extended its control over local bodies. The grant-in-aid "becomes a prelude to inspection, then it leadsto the imposition of uniform national standards upon the local authorities." The central government gives grant on the condition that it shall be spentin a particular way and for purposes153specified by the central government. Once the local authorities have accepted the grant, they have to subject themselves to central supervision and controlso that the central government might satisfy itself that the grant made by it was being properly spent. Otherwise too it is said one who pays the pipercalls the tune. This tendency of increasing control through financial help is getting impetus every day with the result that the independence of localgovernment is being seriously impaired in England—the land of its birth. Half a century ago, England was the classic land of local self-determination,but today the traditional interest of the English in the government of his own community has declined.During the last few years it has been felt that the local government needs re organisation. In 1945, the Parliament appointed a Local Government BoundaryCommission. The commission has proposed three instead of the present six local bodies, these three being the county, county Borough and county District.But its recommendations were not accepted and the commission was dissolved.In conclusion, it may be said, however, that the record of English local government has been splendid. In no case does the national government undertakecontrol of the local administration. It merely advises, inspects, regulates, accords or withholds approval. If the local authorities fail in their end,they are not superseded or dissolved. The central government extends them guidance, renders assistance and helps them acquire a requisite standard of efficiency.Thus the Central Government functions more as a senior partner rather than a boss, in a joint enterprise leading to the welfare and prosperity of the people.It guides rather than impedes. If, however, local authorities do not act on the advice of the central government the latter is not to blame.References1. Munro : Governments of Europe, p. 274.2. Jackson, W.E. The Structure of Local Government in England and Wales (1960) p. xi.15410 POLITICAL PARTIES IN ENGLAND"The Prime Minister of England knows more the leader of the opposition than his own wife."—Dr. JenningsPolitical parties are said to be essential for the successful working of democracy. Democracy needs them for two reasons; firstly, to educate the citizenson political affairs and secondly, to give the citizens an opportunity to elect their rulers. English government is called party government and this istrue to a great extent. The growth of cabinet dictatorship and the consequent decline of parliament is the inevitable result of the growth of the partysystem there. The party system has weakened the king while strengthening the Prime Minister. In this chapter we shall study the organisation and programmesof English political parties.Main Features of British Parties(1) A Two Party System: A great characteristic of the English party system is the existence of two well organised parties since the seventeenth centurywhen the political parties can be said to have come into existence. The original line of cleavage was between the Cavaliers and Roundheads. The formerwere the supporters of Charles I, whereas the latter were opposed to the prerogatives of the Crown and the established Church. But Cavaliers and Roundheads is were not parties in the modern sense of the term. They were, rather, mere factions. During the later seventeenth century the Tories came to representwhat the Cavaliers had stood for, while the Whigs came to represent the Roundheads. Thus the Cavaliers and Roundheads of the early seventeenth centurybecame Tories and Whigs during the later part of the same century. The Tories were associated with the established Church of England, whereas the Whigswere associated with the155Dissenters. The Tories supported the prerogatives of the Crown. They represented the interests of the upper strata of society. The Whigs, on the other hand,wanted to protect the interests of the poor class of society. They stood for curtailing the powers of the king. The Whigs and Tories may be said to constitutethe first English political parties in the real sense of the term. After the enactment of the Reforms Act, 1832, the Whigs changed their name to "Liberals"and the Tories changed into "Conservatives." The "Liberals" and "Conservatives" dominated the political scene and competed with each other for power tillthe rise of the Labour party to power in the second decade of the twentieth century. The rise of the Labour party seemed, for a time, to threaten, thetwo party system in England, but the simultaneous decline of the Liberal Party helped to maintain the traditional two-party system. In 1924 the first LabourGovernment was formed and, thereafter, the liberals never came to power - their ranks continued to dwindle. From 397 seats which they had in the Houseof Commons in 1906, the number fell to six seats in 1959 and 19 as per elections in June 1987. Today two parties - Labour and Conservative - hold the field,the Liberal party having become comparatively insignificant. Occasionally a couple of communists manage to find a place in the House of Commons.The two-party system arising incidentally in England has become deeply embedded in the political structure of England. It has a profound effect on the characterof the British constitutional system. It ensures stable and strong government. "England does not love coalitions" is an old but a widely accepted maxim.In fact, party leaders have always striven for the two-party system. Even the constitution itself was developed under the two-party system and "does itsbest to compel it." The British people have become so accustomed to the two party system that an election for them is really a choice of the government.The seating in the House of Commons symbolises as well as presupposes two parties. In the Parliament crossing of floor is exceedingly rare. The Parliamentaryprocedure has the effect of strengthening the two-party system. There can be little exaggeration in saying that the success of British democracy lies inits two-party system.A decade back development needs a special mention. In 1981 the fight wing of Labour Party caused a split in the Party and framed Social Democratic Party.It could win a few seats in 1983 elections. In 1985 it established an alliance with the Liberal Party who are ideologically close to their views. It poseda threat to Biparty system. In May 1988 the SDP had 8 seats in the House of Commons.156(2) High Centralisation: The British political parties are characterised by high centralisation. Each of the major parties has a strong organisation bothat the national and local levels. The real power rests with the central organs of the parties. There is a direct chain of connection between the headquartersand the local units. Every party has evolved a high degree of leadership and the members of the party follow the party leaders. There is a firm and vigilantcontrol of the party over its members in the Parliament. Inevitable consequence of the high degree of control by the party over the members is that itis highly disciplined. The candidates for election are nominated by the central rather than local units. Rigid discipline inside the parliament is necessaryto keep the party's government in power. The member exercises the vote for his party only in the parliament even if he does not personally agree with iton a particular question. If he votes against his party, he is likely to be expelled from the party.(3) Continuity of Operations: The political parties in England have to be continually in operation. After one election is over, they start preparationsfor the next. They do not go to slumber or even doze between elections. They continue their publicity and education work. They issue literature, hold meetings,conduct week-end and summer schools, organise local efforts, participate in local elections and keep themselves into contact with the members of the parliamentand cabinet. Though the effort in between the elections is not so intense as during the three weeks preceding the election, but it is incessant. As itis said, "British parties are always present, everywhere present and vocally present."(4) Moderation and Compromise: The British political parties are characterised by the tradition of moderation and compromise. The conservatives have notalways been conservative nor have the liberals been liberal in their attitude. The conservatives have often championed reform which liberals have opposed.The Labour party with its avowed programme of socialism is not wholesale socialist and labourite. It does not propose to nationalise all the industries.Thus the conservatives have liberalised their conservatism while the labourites have moderated their socialism. Moreover, all the members of the conservativeparty do not come from the propertied class - the class of landlords, industrialists, financiers and businessmen; nor the labour party is the party entirelyof the workers. All workers do not vote for labour, nor all businessmen vote for the conservative party. As Neumann puts it, "the conservatives have tobe mindful of the working men and the labour cannot157completely disregard business."1 The conservative party has accepted as permanent a large part of the nationalisation introduced by the Labour when in power.The middle class people have their sympathies on both the sides. The whole of it is neither with the conservative nor with the Labour Party.The tradition of moderation and compromise is visible not only outside the parliament but also inside it. The Government realises the value of the roleplayed by Her Majesty's opposition and makes no attempt to suppress it. The opposition too makes a constructive criticism and normally does not obstructthe working of the Government. It does not make extravagant and wild promises to turn public opinion against the Government. In short, moderation and compromisehave become well-known traits of the British Party System.Party OrganisationThe Conservative PartyThe Conservative Party is the successor to the Tories of the eighteenth century. It is the party of the wealthy, the aristocratic and upper class gentry.The university graduates, the middle class as well as working class patriots, disgruntled workers and highly skilled workers whose pride aligns them withthe party also support it. Geographically the South of England inclines towards conservatism.At the top of the Party there is the National Union of conservatives and Unionist Associations or the N.U.C.U.A. There are separate Unionist Associationsfor Scotland and Northern Ireland. It is a federation of local and central associations. Its membership runs into about thirty lacs. Its purposes are topromote party associations everywhere; to foster thinking and effort to further the principles and aims of the party and to be a centre of united action.It has a central council and an Executive Committee. The central council consists of fifteen categories of members, such as university graduates, constituencyassociations, central associations, provincial areas. It elects a president, a chairman and three vice-chairmen at its annual meeting. It also choosesan executive committee which meets once a month. Like the central council, the executive committee is primarily advisory in character. The administrativeand disciplinary work of the party is carried by the central office headed by the chairman of the party who is nominated by the party leader. The centraloffice controls the nomination of party candidates and manages the party's financial affairs. It gets prepared and circulated, the different types of reports,158bulletins, books, brochures, pamphlets, journals dealing with the policy and programmes of the party. It assists the local organs and establishes the newones. It has today become the actual seat of authority in the party organisation; "If the cabinet has become a dictator in the domain of parliamentarylife, the central office has equally become such in that of party politics."2It may, however, be noted that real authority in the party is possessed by the party leader. It is he who nominates the chairman of the central office andis responsible for the elaboration and statements of party policy. The central office conveys to him from time to time the feeling in the constituencies.He is not elected every year. Once elected he continues to hold the office for life. He may, of course, resign. He himself nominates his successor. Churchillnominated Anthony Eden as his successor. The entire party obeys his commands. He is usually the leader of his party in the House of Commons. The chairmanof the party summed up the authority of the party's leader in these words; "His authority is based on free election, and the confidence of his supporters.Resolutions passed by the National Union are sent to him for his information and guidance, but no resolution, however emphatic, binds him on the questionsof policy. This method suits us and has suited the succession of great men we have been proud to have as our leaders." The Party's manifesto in 1945 wasentitled, "Churchill's Declaration of Policy to the Electors." Similarly in 1951 the manifesto was signed by Churchill and began with the word "I".The Conservative Party holds the reins of Government at present. In December 1988 (figures based on general election of 1987) the Conservative Party captured387 seals. In the elections held in April 1992 it suffered set back though much against expectations it could capture 336 seats in House of Commons of651 members. The party has won four times consecutively. The credit for conservative victory despite odds goes to John Major's dynamic leadership.3The basic philosophy of the conservative party is that of Burke, Hume and Adam Smith. It supports the institutions of kingship, church and property. Itdoes not want to diminish the influence and prerogatives of the king. It lays emphasis on the people's loyalty to their king. It showers praises on theroyal family. It wants all the citizens to be members of the church. It believes in the policy of Laissez-faire. The conservatives try to perpetuate theBritish Empire and have very little sympathy with the aspirations of dependent nations. They firmly believe in imperialism. For instance, a die hard conservativeChurchill159always opposed freedom to India. They uphold the interests of the peerage and favour education in church schools. They always favoured retention of theHouse of Lords. Throughout the nineteenth century they were bitter opponents of political rights and education of the lower middle and working classes.In the economic sphere up to the Great War of 1914-18 they were protectionists and now they have dropped their strict adherence to the theory but advocatethe safeguarding of British industries. They have been in general opposed to nationalisation but now they have become reconciled to it and have allowedperpetuation of the nationalisation introduced by the Labour Party. In short, the conservative party values traditions and precedents. Its sense of nationalityis strong and it has faith in the superiority of English to all other races. In social matters the party advocates some refrom.Labour PartyThe Labour Party is of recent origin and was set up in 1906. It is a product of two chief principal forces—trade unionism and socialism. Trade Unions appearedin England in the early stages of the Industrial Revolution and grew steadily in numbers in the nineteenth century. They began to make their demands againstthe governing class. Sooner the Labour saw that it must have its own party and should no longer look back to the candidates of other parties to fight itsbattles. Consequently, in 1893 an independent Labour Party was formed in Scotland with the object not only of propagating socialism but of giving laboura political alliance, distinct from the existing parties. In 1899 the Trade Union Congress projected a new organisation which took form as the Labour RepresentationCommittee with the avowed object of forming a Labour group in Parliament. In 1906, the Committee dropped its title and assumed the name of "Labour Party"and adopted a new constitution. Since that date the party has grown rapidly and emerged in the General Election of 1922 as the second largest party inEngland.The organisation of the Labour Party is more elaborate than that of the Conservative Party. Prior to 1918, the Party was not a national organisation havingbranches open to individual members in every constituency, rather it was a federation of trade unions, trade councils, socialist societies and one couldbecome its member only by joining one of these component groups. After the war the party adopted a new constitution and threw open its gates for old andnew voters alike, and especially for women. The membership clause of the new frame of party read as follows: "The Labour Party shall consist of all itsaffiliated organisations together with those men and women who are individual160members of local labour party and who subscribe to the constitution and programme of the party." The constitution also made it clear that "workers by brain"were no less welcome than "workers by hand" and any or all individuals who were prepared to endorse the principles of the party were to be encouraged toidentify themselves with the party. This departure made the party truly national. Not only workers but people from all walks of life, teachers, businessmen,journalists, workers, military men, engineers, officers, bishops, shopkeepers, and agriculturists are now enrolled as members of Labour Party.The supreme governing authority of the Labour Party is the conference. It is composed of delegates from all member organisations who send one delegate forevery 1,000 members; an additional woman delegate may be sent from any constituency in which the number of individual women members exceeds 500. All membersof the National Executive, and of the parliamentary Labour Party, and all duly sanctioned parliamentary labour candidates are ex-officio members of theconference with no right to vote unless sent as delegates. It meets annually and directs and controls the work of the party. It may amend the constitutionby ordinary majority. During the periods between conference the work of the party is carried by the National Executive of the party.There are 28 members of the Executive Committee of whom twelve are nominated and voted for by the trade unions, by socialist, the professional and co-operativedelegations together; 8 by the constituency organisations; 5 women nominated by any organisation and elected by the conference as a whole. To these 25mentioned are to be added 3 ex-offico members; the leader of the party and the deputy leader and treasurer. The chairman is elected annually by the conference.The functions of the Executive Committee are: to see and ensure the establishment and keep in active operation a party in every constituency, to give effectto the decisions and orders of the conference, to interpret the constitution and standing orders in cases of dispute; to expel persons from membershipand disaffiliate organisations which have violated the constitution or bye-laws; to supervise the multifarious work carried on through party headquartersand to approve candidates for the Parliament. The Committee meets for two or three days each month, and sub-committees are set up for special purposes.The Central office of the party is under the immediate direction of the Secretary who is elected by the party conference. The office directs161the party activities throughout the country and has established and maintained regional organisations. It recommends candidates like the other parties,provides a Speaker, apportions funds, distributes campaign literature, helps to support the party newspapers and other routine work which is performedat the headquarters of the party. The office works under the direction of the Executive Committee.The members of parliament who belong to the labour party constitute the Parliamentary Labour Party. They elect their leader in the parliament, who, if theparty is in power, becomes the Prime Minister and if the party is in opposition becomes the leader of the opposition. The Parliamentary Labour Party consultsthe National Executive and is guided generally by the policy formulated by the Conference.A Coordinating Agency termed as National Council of Labour also exists. It consists of 21 members—7 represent Trade Union Congress, 5 Labour Pary executive,4 Parliamentary Labour Party and 5 Cooperative Union. The Council meets once a month and coordinates the party activities and policies in the various fields.4The programme of the Labour Party is rigidly socialistic in character. It proposes to abolish the capitalistic system by degrees. Land and capital, accordingto the party's manifesto, should be owned by the nation and all economic activities should be controlled by the State. Wealth should be more equitablydistributed. It believes in the nationalisation of all industries. It does not believe in privileges for a particular class. Its ultimate goal is full-fledgedsocialistic regime. The party wants taxation to be graduated. It, in short, strives to achieve political, social and economic emancipation of all peopleand more particularly of those who directly depend upon their labour, manual or mental. Its programme is the programme of a welfare State. "It seeks tolight Britain forward into a new era of equality with less of a zest, perhaps, for the technique of social change, and less of concern for the questionwhether or not that technique involves a policy of socialism and more, far more of a passion, for the reality of social change and the actual coming ofequality." The party is genuinely socialistic and-liberal. While in office during the period 1945-1951 it carried through substantial nationalisation ofindustries.In political matters the party always stood for self-government for the colonies and dependencies of the British Empire. It was during the rule of LabourParty that India attained Independence. The party at one time advocated the abolition of House of Lords but now it has reconciled itself to its existence.It stands for strengthening the hands of162the United Nations and close co-operation with the United States. In December 1988 it could win only 227 seats but in the 1992 elections it improved itsposition and won 271 seats. In May 1997 Elections the party captured 419 seats decimating the conservatives with the worst ever defeat since 1830.The Liberal PartyThe Liberal party was born of the mentality and interests of John Locke and the Liberal Whig elements. At one time it was one of the major parties in Englandbut, as mentioned earlier, its strength has now dwindled and it has become a minor party. However, in 1977 the Labour Party could keep itself in powerwith the support of the Liberals.The Liberal Party is a party of reform. It has always stood for liberty and has championed the cause of religious liberty. It has also championed the causeof political liberty, the right of every citizen to an equal share of the suffrage, and the right of the House of Commons, elected popularly, to a sovereignvoice. It may be remembered that the Parliament Act of 1911 curtailing the powers of the Lords was pressed to statute by the Liberal Government after greatand continuous fight with the conservatives inside and outside the Parliament for three years. The liberals believed in free trade and laissez-faire. Whilesome liberals still adhere to their belief in free trade, the Liberal Party has given up its allegiance to the doctrines of "free-trade and laissez-faire".The party no longer caters to the view that free competition is a panacea for the nation's ills. It believes now "neither in a refine of private enterprise,nor in one of pure socialism, but in a mixed regime which combines features and elements of both, according to the needs of the nation, and progressivelychanges the proportion of the elements with the movement of national needs." It stands for individualism for the rich and collectivism for the poor. Itclaims that it represents not a single class but the whole nation. It is not tied to any theory, but considers every proposal on its merits. While rejectingsocialism, it advocates considerable reforms in capitalism. It does not regard nationalisation essential for the proper arrangement in industrial affairs.Private ownership would remain but the workers would have a stake in the business through profit-sharing schemes and their representative councils. Theparty aims at building a Liberals commonwealth in which everybody will possess liberty and property and enjoy security. The party is supported by thoseof moderate income and by a few rich and also the poor.One of the reasons for the decline of the Liberal Party during the past five decades may be found in its lack of a forthright and distinctive163programme. It has fallen between the two stools of Labour and Conservatism. Like the Labour Party, it favours the welfare State, as do many Conservatives,and like the latter it opposes State capitalism. Much former Left-Liberals strength has gone to Labour. Likewise Right-Liberals (the old style Gladstonianliberals) have joined the Conservative Party. Thus during the last three decades or so the party is gradually on the decline. In 1945 it captured only12 seats, in 1950 only 9 seats. In 1955 and 1959 they could win only six seats. In 1964, it improved its position slightly as it captured 9 seats. In 1966,it improved its position and got 12 seats. In the March 1974 elections, it won 14 seats. It joined Labour in April, 1977 in forming a coalition Government.In 1987 General Elections the Liberals and Social Democratic Party in an alliance captured 19 seals. In April 1992 it won 20 seats.The Communist PartyBesides there exists a small group of Marxists who aim at the abolition of capitalist rule and establishment of communist society. It could elect its representationin the British Parliament. But it has no prospects in England where worker is not disgruntled and the Labour Party looks after his interests.The Social Democratic Party 1981 (S.D.P.)The rightists of the Labour Party broke away to form the Social Democratic Party in 1981. The rightists in toto did not, however, leave the party, onlya group of them opted out. The split occurred on account of Labour Party's commitment to the Electoral college for according the trade unions a dominantvoice in the election of the party leader. The SDP advocates mixed economy, the NATO alliance, and membership of European Common market.The SDP stood for the policies of Gaitskell - the leader of the opposition. According to Gaitskell, equality was attainable without wholesale public ownershipand that state should effect large scale purchases of shares in private companies. The SDP did not indulge in trade union activities and did not believein class conflict. Vemon Bogdanor opines "The SDP is a party of individual membership which claims to represent all classes or rather it denies that economicrelationship alone shapes society. Political authority derives not from social groups possessing corporate unity but from individuals who combine togetherunited by a common interest"5The SDP and Liberals formed an alliance based on a considerable degree of ideological convergence between the policies of the two164parties. However, in the elections of 1987 the conservatives under the dynamic leadership of Mrs. Thatcher stole march upon all parties. The liberals underthe leadership of David Steel and SDP led by David Owen had hoped to hold a-balance in a hung parliament but 1987 elections dashed their hopes to the ground.In March 1988 Liberal Party and SDP got merged and set up a new Social and Liberal Democratic Party. In April 1992 the Party's combined strength emergedonly to be 19 in a House of 651 members. A section of SDP retained separate identity and could have 3 seats as per June 1987 elections.Concluding our survey of the organisation and programme of the British Political parties it may be remarked that between the three main parties Labour,Liberals and Conservatives there is a general agreement on fundamentals. They favour the continuance of monarchy and accept the Commonwealth of Nationsas an aggregation to be defended and preserved. As stated, in "social, imperial and international affairs the professed immediate policies of all partiesare very similar; the elector has to judge whether capitalism or socialism is more likely to produce the desired results, and perhaps which party is byits nature, personnel and record the more capable of progress." With the decline of the Liberal Party the British politics has more or less now revertedto the two-party system, with an alignment of right against left, and of more free enterprise versus more socialisation. The two major parties are eitherleft or right. The importance of centrist elements can not be minimised who exercise an extremely important moderating influence on both parties."5In April 1992 elections the position of the main political parties was as follows:Total members: 6511. Conservatives 3362. Labour 2713. Liberal Democrats 204. Scottish National Party 3The remaining seats were won by regional and nationalist parties of mean significance. This was the fourth successive victory for the conservative thoughthe party lost 44 more seats to the Labour. In May 1997 Elections the labour party swept the pulls capturing 419 seats in a House of 659 members.Her Majesty's oppositionNo account of the British constitutional system would be complete without describing the role of Her Majesty's opposition which is an integral and indispensablepart of the British Constitution. The165opposition in England is as organised as the Government itself. It is officially recognised. The leader of the opposition gets an annual salary chargedon the consolidated funds. He has a room in the same corridor as those of the Ministers. He stands side by side with the Prime Minister when the monarchopens the Parliament. He is justly described as Her Majesty's Opposition. He is the alternative Prime Minister. The existence of an organised and officiallyrecognised opposition is almost peculiar to Great Britain. In the United States there is no officially recognised opposition. In India there is an oppositionbut on account of the multi-party system it is not so strong and united as in Britain though opposition and its leaders are duly recognised. The Leaderof the Opposition in India also enjoys status of Cabinet Minister.Her Majesty's Opposition in England plays an important role in the actual administration of the Government. It keeps the Government always on toes and thuson the right track. The Government learns more from the criticism by the opposition than by the members on the Treasury benches. The Government does notgo off the rails due to the constructive and sound criticism of the opposition in the Parliament. In the absence of opposition the party in power is likelyto become dictatorial and democracy may fail. The opposition criticises the arbitrary acts of the British Government and exposes its infirmities. Quintinand Hogg observed: "It is not a long step, from the absence of an organised opposition to a complete dictatorship."7The opposition in Britain is responsible opposition. It is not only Her Majesty's opposition but is also Her Majesty's alternative Government. It is nota mere faction or caucus but is a responsible part of the Government machinery. It has been rightly said that the Prime Minister knows the leader of theopposition more than his wife. The leader of the opposition is paid a salary of ? 44100 per year from the public funds. Besides, like other members ofthe House he draws ? 13875 as Constituency allowance. He enjoys the status of a Cabinet Minister. The leader of the proposition has to function on thepresumption that at any time he may be called to run the reins of administration and so he should not indulge in loose or irresponsible talk or make falsepromises. That is why the opposition in Britain is seldom destructive and obstructive. In times of national crisis it always co-operates with the Governmentbecause the parties are agreed on fundamentals. Laski opines the party system in UK depends for its success on the fulfilment by each side of certain understandingswhich they must not violate if the system itself is to endure".8 Formation of166national government by Churchill during world war stands witness to this fact of agreement on fundamentals.Pressure GroupPolitical parties constitute the very soul of democracy. Democracy without a political party is said to be a ship without pilot or a boat without rudder.Besides these parties every political system is influenced by several organised groups which are interested in the affairs of the state for some specificpurpose, mainly selfish. Hitchner and Levine prefer the word 'interest group' which according to him is a collection of individuals who try to realisetheir common objectives by influencing public policy'9 Almond and Powell define interest group as "a group of individuals who are linked by particularbonds of concern or advantage and who have some awareness of these bonds.10 Evidently, the pressure groups constitute the agencies for safeguarding theinterests of a group of people. Hence they pressurise or affect the working of every political system by contacting the political parties, exerting pressureon the government leaders including the bureaucracy. They operate through the political parties but they fundamentally differ from them. In the words ofDuverger "Political parties strive to acquire power and to exercise it by electing. Pressure groups do not participate directly in the acquisition of poweror in its exercise they act to influence power while remaining apart from it. They exert pressure on it. Pressure groups seek to influence the men whowield power."11 Thus a basic difference between the two lies in the fact that political parties aim at capturing power whereas the pressure groups exertpressure on the power and strive to derive maximum benefit for their members.Pressure Groups in U.K.Some of the prominent pressure groups in Great Britain are the National Farmers Union, the National Union of Mine Workers, the Transport and General WorkersUnion, the Electrical Traders Union, the Fabian Society etc. These groups stand for the protection of the economic interests of their members. The tradeunion organisations strive for the amelioration of the wages of the working classes.Besides these there are non-economic groups as well. For instance Royal Society for the prevention of cruelty to animals Lords' Day Observance Society,the Students Christian Movement, Council for the Protection of Rural England and Royal Institute of British Architects, Automobile Associations; Associationof Metropolitan Authorities; the County Councils Association, the Magistrates Associations and scores167of temporary associations which come into existence for achieving a particular purpose. Such Associations generally prescribe the legislation committeesas they have got the right to express their opinion before them. The Government also utilise these pressure groups. The Ministry of Labour generally publishesthe directory of the trade unions and employees associations. The Government Departments take them into confidence when matters concerning these bodiesare being taken up.It will not be out of plan to point out that pressure groups do not play as effective role in Great Britain as in USA on account of two different politicalsystems prevailing there. In the words of Hitchner "The executive originates all important legislation; hence the Cabinet and ministers are generally thesensitive centres of power. British members of Parliament are more highly disciplined to party loyalty and are thus less susceptible to the pressure ofgroups. In certain cases, however, the British members of Parliament are agents of such groups and espouse their cause in the Parliament. Some of thesegroups are aligned to the Parties. Trade Union Congress is the potent wing of the Labour Party and Federation of British Industries is an ally of the ConservativeParty.How Pressure Groups function?The Pressure Groups function in various ways: (a) They exercise influence on the legislation at the drafting and committee stage (b) They remain in touchwith the officials who are instrumental in drafting the legislation and rendering advice to the ministers (c) They maintain rapport with the members ofParliament who support them at the Committee stage (d) They render assistance to the departments in the policy formulation and administration (e) Theymobilise public opinion through the press and public meetings for and against a particular piece of legislation before the Parliament (f) Some of thempromote socio-economic reforms whereas some others aim at political reforms. Capital punishment in England was abolished through the efforts of "NationalCampaign for the abolition of Capital punishment"-a pressure group. Likewise certain pressure groups were responsible for effecting of parity in franchiserights to women.EvaluationThe critics opine that these pressure groups are tools in the hands of wealthy and effluent section of society. The latter encourages corruption. The retiredbureaucrats or former parliamentarians are engaged by some of these groups to win over bureaucracy and the existing parliamentarians.168It is also contended that the groups function in an undemocratic manner. The democratic process is distorted as 'part' is made to prevail over the whole.Moreover, these groups cannot be held accountable for their sinister policies or scrupulous functioning of their leaders.The above criticism is rather wild. The pressure groups have become part and parcel of democratic political system in Great Britain. They are kept briddledby their own members, other political parties and vigilant government. National interests are never kept at stake. With the emergence of concept of welfarestate and the impact of the Labour Party the interest or pressure groups have played very healthy role and their responsible political activity has contributedmuch to the realization of the common good.12References1. Neumann, R.G., Europe and Comparative Governments, p. 117.2. Ogg, English Government & Politics, p. 583.3. The Labour Party lost power in 1979.4. Hindustan Times, dated April 11, 1992.5. Bensette R. The essentials of Parliamentary Permanency (1964 ed.)6. Quintin and Hogs, Purpose of Parliament, p. 87.7. Laski H.J. Parliamentary Government in England, p. 109.8. Hitchner Dell and Levine C: Comparative Govt. and Politics, p. 60.9. Almond G.A., G.B: Comparative Politics. A Development Approach, p. 75.10. Duverger Maurice: Party Politics and Pressure Groups, p. 101.11. Hitchner and Levine: op. cit. p. 70.12. ibid., p. 75.1THE CONSTITUTION OF U.S.A.1 INTRODUCTORY"It is not the best debt that we owe unto history that it had made us acquainted with our dead ancestors; and out of the depth and darkness of the earthdelivered us their memory and fame."—Sir Walter RaleighThe American political system now over 200 years old, a respectable age, is apt to give the United States a just claim to government maturity. The politicalinstitutions evolved through the wisdom of the Founding Fathers and the experiences of older nations have plainly withstood the test of time. The Americansystem of Government is largely a home made product. It is not something planned and created in accordance with an ideology as totalitarian governmentsare but a continually changing organism which has been matured by the unending process of trial, error and correction. It holds a singular interest becauseupon it have played most of those historical factors and forces which have moulded the history of the world such as imperialism, nationalism, industrialismand democracy. It is here that the philosophy of John Locke which was propounded to stabilise the Glorious Revolution became the basis of another memorablerevolution against the tyranny of Englishmen themselves. It is here that the celebrated doctrine of "Separation of powers" expounded by Montesquieu wasfor the first time accepted and strictly adhered to. It is here that the concept of "Union without unity" (of federation) was for the first time mootedand proved practicable. Most of the countries of the world which chose a federal form of Government have drawn inspiration from the Constitution of theUnited States of America.Land and the PeopleThe area of the United States of America is 3,022,387 sq. miles. It occupies about one-nineteenth of the land surface of the globe. It lies in2the temperate zone of the North American Continent, stretching 3,000 miles from the Atlantic Ocean on its East, to the Pacific Ocean on its West. On theNorth, it is bordered by Canada and on the South by Mexico. It has several mountains some of which rise to an altitude of more than 13,000 feet. It haseight prominent rivers which make the land very fertile. The five great lakes, forming part of the boundary between the United States and Canada, comprisethe largest island of fresh water in the world.Nearly two per cent of the population of U.S.A. consists of Negroes. About two-thirds of the people live in towns and cities and nearly one-third in therural areas. The population shows certain peculiar trends in the U.S.A. There is a slight preponderance of women over men. The population of the townsis now on the increase and the people are drifting towards the west coast of the country.Production and IndustryNature has been kind to the United States. She is rich in mineral resources. Coal, iron, copper, lead, zinc, silver, gold and mercury are found in abundance.Petroleum is also found in large quantities. The principal crops produced in the U.S.A. are wheat, oats, barley, potatoes, cotton, sugarcane and tobacco.Forest land occupies about one-third of the United States.The United States of America is an industrial country. The principal industries are motor vehicles, steel works, meat packing, petroleum, chemicals, liquor,paints and industrial apparatus. She exports automobiles, aircraft, coal, cotton, iron and steel products. She imports beverages, watches and clocks, coffeeand jute products, etc.EducationThe percentage of literacy is very high in America. Over 99 per cent of the people are literate. Free schools are established. They are financially supportedby the States. Education up to the age of 16 years is compulsory both for boys and girls. Harvard, Chicago, Yale and Columbia are the leading universities.The Americans also take part in sports, popular sports being tennis, skating and swimming.ReligionReligion gets voluntary support from the people. The government gives no aid to the churches. The early settlers of America had suffered at the hands ofreligious fanatics. They knew very well the importance of separation of the church from the State. Hence the separation of the church from the State isa cardinal principle of the U.S. Government.3The principal religious organisations are the Protestants, the Roman Catholics and the Jews. The freedom to worship according to one's own conscience isprotected by the Constitution.Constitutional DevelopmentThe study of the history of the Constitution of the United States of America shows how the form of the constitution is moulded by the exigencies of time.It was the peculiar set-up of the thirteen colonies which led to the evolution of the federation. These colonies, situated on the Atlantic side largelypeopled by English settlers, were of three different classes. Firstly, there were Crown Colonies each of which was ruled by a Governor appointed by theBritish King. He was assisted by a Council in the conduct of the administration. The second class of colonies were called the Proprietary Colonies. Thesecolonies were under individuals who had been given the right to exercise the powers of government. Lastly, there were the Charter colonies in which thepowers of government were conferred directly upon the free men of the colony.Apparently these colonies had variety of governments but all were alike fundamentally in their love of civil liberty and their adherence to the institutionsof free government. During the early part of the eighteenth century, the colonies had acquired a large measure of self-government. The colonial assemblies,elected by the people, had the right to initiate legislation. They managed local trade, police and had the right of taxation to meet the local needs. Themother-country, however, controlled and regulated foreign trade, that also to her own advantage. The mother-country controlled foreign affairs, navy andarmy and decided questions concerning war and peace. This was resented by the colonies. Naturally, the conflict between the colonies and the mother-countryensued. The colonists did much to harass the representatives of the King. The Governors and other officers sent out from England were also persons of littletact and discretion. The result was a very great conflict of interests between the rulers and the ruled.There was another cause of conflict also. The early settlers of America had brought with them certain institutions of their motherland. They worked theseinstitutions in their new homes. One of these institutions was the English Common Law, which embodied those fundamental rights of the individual, whicheven the King must respect. These rights could not be destroyed even by the parliament. It was the conflict over these rights that resulted in enmity betweenthe colonists and the mother-country.4The Declaration of IndependenceSo long as the menace of the French and the Spaniards existed in North America, these colonies meekly submitted to the dictates in the mother-country, butwith the extinction of the French and Spanish power in the Seven Years' War, the things took a new turn. A historian remarks that with the triumph of Wolfeon the Heights of Abraham began the history of the United States. With the removal of the menace of the French holdings and pressure of the Spaniards,the colonies began to prepare for war. A Congress of representatives of the States was called at Philadelphia in 1775. The Congress appointed George Washington,the Commander-in-Chief of the army. The French promised aid and ultimately the thirteen colonies declared war against England. On July 4,1776 was publishedthe Declaration of Independence. It was declared that colonies "are free and independent States. They are absolved from all allegiance to the British Crownand as free and independent States have full power to declare war, conclude peace, contract alliances, and to do all other acts and things which independentStates may of right do."Establishment of ConfederationWith the 'Declaration of Independence' begins the independent history of the United States. The colonies as a consequence of the declaration became independentof the Crown and politically independent of others. Thus the first thing to engage their attention after the 'Declaration of Independence' was to prosecutethe war unitedly. On July 11, 1776, a Committee was appointed which drafted the articles of the confederation. These Articles were approved by the Congressof the States on November 15, 1777. The first of these Articles named the confederation "the United States of America." The second Article stated thateach State retained its sovereignty, freedom, independence and every power, jurisdiction and right, which was not by this confederation expressly delegatedto the Congress.But each State was eager to guard its own individual entity. They had come close only for some very specific purposes and this fact was made clear in thethird Article which stated, "the said States hereby severally enter into friendship with each other for their common defence, the security of their libertiesand their mutual and general welfare, binding themselves to assist each other against all forces offered to or attacks made upon them, on account of religion,sovereignty, trade or other pretence." Thus these states entered into a league of amity and retained that sovereignty, freedom and independence.5The Congress, established by the ad-hoc constitution was the only common institution of the Confederation. It consisted of the delegates of the States,each being entitled to send not more than seven and not less than two representatives. Each State had one vote. During the recess of the Congress, a Committeeof the States composed of one member from each State was entitled to do anything which the Congress was authorised to do.It is clear from the above description that the Confederation was a loose "Union of States". The Articles of Confederation were hardly anything more thanconventions. They had no binding force. The Congress of States was to control the affairs of the States but it had no real powers. It was merely a consultativeand advisory board. It could only tender advice. It could not compel any State to obey its dictates. The weakness of the Confederation became apparentsoon after the war. In the words of Wilson, "it was a rope of sand which bound none."The war lasted for eight years. The Britishers recognised the independence of the colonies by the treaty of Versailles in 1783. Soon after the victory,there was a crisis in the life of the infant nation. It has been remarked above that the Confederation of States was only a very loosely knit body. Assoon as the common danger which brought the states together was over, inter-State jealousy began to develop. The trade suffered heavily. Anarchy and chaosreigned supreme. But soon luck favoured the United States of America. An opportunity presented itself and the leaders of the nation succeeded in retainingtheir union intact.The Philadelphia ConventionIt has been remarked above that as soon as the War of Independence was over, inter-State bickering developed. The States of Maryland and Virginia quarrelledover the question of navigation of the river Potomac. In order to decide this dispute and also to consider the extension of the power of the Confederationwith regard to the commerce, in September 1786, a conference was called at Annapolis. Only five States attended the conference. Alexander Hamilton, oneof the delegates, induced the conference to call upon the Congress to summon a convention of delegates of all the States to meet at Philadelphia to considerthe question of amending the Articles of the Constitution. Accordingly, the Congress summoned the famous Convention at Philadelphia in 1787. Seventy-threedelegates were sent by twelve States as Rhode Island did not participate. However, only 55 attended and some of them were present only for a few days.6The average daily attendance was between 30 and 35. The delegates to the Convention were experienced persons. George Washington, James Madison, AlexanderHamilton, Benjamin Franklin and James Wilson were some of the highly talented and distinguished personalities. Munro remarks, "All that can truely be saidof "the conventions' make up" that there were men of widely differing capacities, foresight, temperament, experiences and ingenuity." They approached theproblem in a very practical way. They had two aims before them, to establish a stable Central Government to bring order and cohesion among the States andto preserve as much as possible the independence of the States. Prolonged discussions were held. Various formulae were put forward and considered. Ultimatelyafter sixteen weeks of hot discussion, on September 17, 1787, a brief document embodying the constitution of the new government of the United States wassigned unanimously by the States present. It was ratified by convention in nine States as agreed upon in the Philadelphia Convention and enforced on 4thMarch, 1789.The constitution radically changed the character of the States. It established a federal government allowing maximum autonomy to the States. At the timeof adoption of the constitution, some of the States kept out of the new federation, but later joined it. The number of States gradually rose from the original13 to the present 50. The U.S.A. thus today is a federation of 50 States.In March 1998 the House of Representatives passed a legislation that would allow Puerto Rico to vote in a Plebiscite on whether it wanted to become the51st USA State, an independent nation or continue its present status as a US ally. Clinton called the Legislation 'a victory for democracy and againstexclusion'.Reference1. Reported in Tribune March 7, 1998.72 SALIENT FEATURES OF THE AMERICAN CONSTITUTION"The American Constitution is the horse and buggy affair projected into a motorised era."—MunroAs stated earlier, the present Constitution of the United States of America was adopted at the Philadelphia Convention held in 1787. It came into forcein 1789, after it had been ratified by the minimum required number of States. The Constitution is unique in many respects. It is one of the briefest Constitutionsin the world. Originally it consisted of 7 Articles but 26 Amendments have been effected in it during following years. The Constitution presents a classicexample of its rigidity. The Separation of Powers, a doctrine propounded by Montesquieu, has found favour in the American Constitution in a way unknownto any other constitution of the world. The application of the theory of separation of powers has been combined with a remarkable system of checks andbalances in the U.S. administration.Again, the judiciary occupies a pivotal position in the American political system. It exercises judicial review. It interprets the constitution and hasdeveloped it. To take an instance the Constitution created a weak Federal Government but the Supreme Court has made the Central Government sufficientlystrong in order to meet the needs of Modern America through its doctrine of implied powers.Summing up the novelties and distinctive features of the U.S. Constitution, Lord Bryce aptly remarks.... "yet, after all deductions, it ranks above everyother written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, its simplicity, and precisionof language, its judicious mixture of definiteness in principle with elasticity in details."8Following are some of the salient features of the Constitution of United States.1. Written CharacterLike other federal constitutions in the world, the American Constitution is written in form. It is a brief document consisting of 7 Articles and 26 Amendments.It was in fact a model of draftsmanship, of constitutional elegance, of brevity and of apparent clarity. Indeed it was a skeleton constitution, since framersof the constitution left the details to be filled in by the Acts of the Congress. The Constitution was thus a starting point of taking off ground. It hasbeen adequately clothed with conventions, customs, judicial decisions and legislative measures. The unwritten element in the form of conventions has playeda vital role so much so that the very nature of the constitution stands changed now. To take one example, the fathers of the constitution provided forindirect election of the President but as a matter of convention the election has now become direct.2. RigidityThe United States Constitution is the most rigid constitution in the world. It can be amended by a lengthy and cumbersome process. Because of the complicatednature of the amendment procedure, sometimes it takes years before an amendment becomes operative after it has been proposed. Every amendment which canbe moved in two different ways, must be ratified by three-fourth of the States. The rigidity of the constitution is obvious from the fact 'that duringall these years it has been in operation, only 26 amendments have been made in the constitution.Despite its rigidity, the constitution has been able to adapt itself to the changing circumstances. It has consequently stood the rigours of industrialrevolution and democratic upsurge, the turmoils of the civil and global wars and economic crisis of the thirties.3. Federal CharacterThe American Constitution is federal in character. It was originally a federation of 13 States but due to admission of new States, it is now a federationof 50 States. A constitutional division of powers has been made between the Centre and the federating units. The constitution enumerates the powers ofthe Centre and leaves the residue of powers to be exercised by the federating States. All powers not delegated to the Centre or not reserved for the peopleare exercised by the States—The constitution thus creates a weak Centre because residuary powers have9been given to the units. However, in practice, Federal Centre in America has become very powerful due to the application of the doctrine of "Implied Powers"as propounded by the Supreme Court of the U.S.A. Had the Centre been weak, the federal system would not have survived the onslaught of civil war.4. Supremacy of the ConstitutionThe constitution is the supreme law of the land. Neither the Centre, nor the States can override it. A law or an executive order repugnant to the constitutioncan be declared unconstitutional and invalid by the American Supreme Court.5. Separation of PowersThe U.S. Constitution is based on the doctrine of 'Separation of Powers' though there is no direct statement of the doctrine of separation of power. However,the three wings of administration viz., the executive, the legislature and the judiciary are inter-dependent and cannot be separated entirely in the interestsof good government yet an attempt has been made in the American Constitution to separate them as much as possible. The Congress is the legislative organ.The President is the head of the executive. He is elected indirectly by the people and has nothing to do with the Congress. He enjoys a fixed tenure of4 years and is not a member of the Congress and cannot be removed by vote of no-confidence before the expiry of his tenure of office. He does not participatein debates, nor can he dissolve the Congress. Both are independent of each other. The Supreme Court heads the federal judiciary and enjoys freedom in itswork. However, the separation of powers, in actual practice, has been limited to a very large extent. The President, today, controls the legislative policy.This fact was established during Rooseveltian era. The President is impeachable by the Congress. This ensures coordination between the executive and legislativebranches of the government. Likewise the other branches of the government have a slice of function of the other branches entrusted to it.6. Checks and BalancesRecognising the importance of close co-ordination among three organs of the government, the fathers of the constitution introduced 'Checks and Balances'.The powers of one organ were so devised as to exercise a check upon the powers of others. As for example, the President can veto the Bills passed by theCongress. The Senate shares with the President his powers of making appointments to the various federal10offices and conclusion of treaties with foreign States. All such treaties must be ratified by two-thirds majority in the Senate. Through this power, theSenate controls the internal administration and external policy of the President. The organisation of judiciary is determined by the Congress and the judgesof Supreme Court are appointed by the President with the consent of the Senate. The Supreme Court can declare the laws passed by the Congress and executiveaction taken by the President ultra vires. In this way, the three organs of the government have been interlocked and interchecked. Eulogising this featureOgg remarks, "No feature of American government is more characteristic than the separation of powers combined with precautionary checks and balances. Nothingquite like it can be found in any other leading country of the world."7. Bill of RightsThe constitution guarantees fundamental rights of person, property and liberty. It is, however, noteworthy that these rights were incorporated in the constitutionby a number of amendments effected after the constitution was promulgated. They were not enumerated in the original draft of the constitution. But by subsequentamendments (first ten) individual liberty has been effectively safeguarded. The rights of citizens are enforceable by recourse to the judiciary. Theserights cannot be modified or suspended except by a constitutional amendment. Freedom of speech, of worship, of habeas corpus, no unreasonable search, andseizure which constitute hallmark of a just society, are now part and parcel of the constitution.8. Judicial ReviewThe Supreme Court and lower federal courts possess power of judicial review of the legislative enactments. The Federal judiciary can declare any legislationor executive action null and void if the same is found to be inconsistent with the provisions of the constitution. The judiciary thus acts as the guardianand custodian of the constitution and fundamental rights of citizens. The Supreme Court has so interpreted the constitution that it has adapted it to thechanging needs of society. It has enlarged the powers of the Congress. The supremacy of the judiciary over the executive and the legislature has led tothe remark that the government of U.S.A. is governed by the judges and that the American Constitution is what the judges make of it. The critics describethe Supreme Court as a third chamber and judicial review as judicial veto.119. RepublicanismUnlike U.K. where a hereditary monarch is the head of the state, the U.S.A. is a republic with the President as the elected head of the State. The constitutionderives its authority from the people. Moreover, the constitution makes it binding upon every constituent State to have the republican form of Government.10. Presidential form of GovernmentThe constitution provides for the Presidential type of government in the U.S.A. All executive powers are vested in the President. The President is not constitutionallyresponsible to the Congress in the manner in which the executive is responsible to the legislature in England or India. He does not attend its sessions,nor initiates legislation directly, nor answers questions. The Congress cannot remove him during the term of his office which is fixed for four years.On the other hand, the President cannot dissolve the Congress. The members of his Cabinet are neither members of the Congress nor answerable to it. Theyare his errand-boys who have been rightly termed as the 'family' of the President or his 'kitchen' cabinet.11. Dual CitizenshipThe U.S. Constitution provides for dual citizenship for the people of the United States. An American is the citizen of the U.S.A. as also of the State wherehe or she is domiciled. It is in contrast with the idea of single citizenship as incorporated in the Constitution of India which establishes a federalform of government as well.12. Popular SovereigntyThe American constitution is based on popular sovereignty. The preamble of the constitution runs as follows:"We the people of the United States in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence,promote the general welfare and secure the blessings of liberty to ourselves and posterity, do ordain and establish this constitution for U.S.A." The ultimatesovereignty in U.S.A. is thus attributed to the people. The doctrine of popular sovereignty attributes ultimate sovereignty to the people and substitutesconstitutional system of government for arbitrariness.13. Spoils SystemSpoils system is another important ingredient of the American Constitution. It prevailed in U.S.A. in worst form during the 19th century. According to thissystem, a government office was considered12as a spoil for the services rendered to the prospective president at the time of Presidential election. Hence so long as a particular President was in office,he had his supporters in all offices and they strove their best to ensure his election or re-election. If their party was ousted in the next election,they had to tender their resignation and the new President had to keep their substitutes in those key offices. It led to inefficiency and corruption. Hencean act known as Pendleton Act (1883) was passed to put a stop to this system. Henceforth about 80 per cent of such offices were to be filled through competitiveexaminations. Thus spoils system persists only in 20 per cent cases. These offices are still the patronage of the American President.14. Bicameral LegislatureLike U.K., U.S.A. too has a bicameral legislature. Its lower house is termed as the House of Representatives whereas the upper is known as the Senate. Theupper House of U.S.A., unlike other upper chambers in the world, is more powerful than the lower. It is equipped with legislative, executive and judicialpowers. It is described as the most powerful upper chamber in the world. Its tenure is 6 years unlike that of lower house which is elected only for twoyears. Moreover, it is a compact house consisting of 100 members whereas lower house consists of 435 members.Thus it can be concluded that American constitution is a unique constitution presenting a constitutional model entirely different from that of U.K. Itsstability and strength is the envy of the world constitutions. Some of the developing democracies like Sri Lanka and Pakistan opted for it and some ofthe constitutional experts and legal luminaries in India have recently suggested its adoption in India if India is to be brought out of moraes of instabilityand inefficiency.Growth of the ConstitutionThe original constitution of the United States of America consisted of seven articles containing not more than four thousand words. It was framed to satisfythe requirements of the original thirteen States with a small population living in the pastoral-cum-agricultural age. The constitution of 1779 embodiedonly general outlines of the framework of the federal government. But the present constitution of the U.S.A. cannot be identified with the original constitutionaldocument prepared by the Philadelphia Convention. Today it includes many rules and regulations, judicial interpretations and conventions, etc., which affectthe distribution and exercise of the sovereign powers of the State. It has, in fact, changed beyond recognition according to the needs of the times.13The various facts which have led to an all round development of the American constitution may be summed up as follows:1. AmendmentsThough the process of amending the constitution has been extremely slow, yet it had led to its growth. There have been only 26 amendments to the constitutionsince its inception. Ten amendments were added on December 15, (1791), soon after the promulgation of the constitution. These amendments incorporated the'Bill of Rights' for the American people. The eleventh, (1798) and twelfth amendments (1804) removed some ambiguities in the constitution. The thirteenthamendment (1865) abolished slavery in America. The fourteenth amendment (1868) regulated citizenship. Equal rights of the white and coloured people wereestablished by the fifteenth amendment (1870). The sixteenth amendment (1913) authorised the federal government to tax incomes, without apportionment amongseveral states. The eighteenth amendment (1920) prohibited the manufacture, sale and transportation of intoxicating liquors. The 19th amendment (1920)granted suffrage to women. The 20th amendment (1933) changed the dates for the beginning of the sessions of the Congress and of assumption of office ofthe President. The 21st amendment (1933) repealed the 18th amendment but prohibited the transportation of the intoxicating liquors into a State againstits law. The 22nd amendment (1951) regulated re-eligibility of the President. The 23rd amendment (1961) gave the residents of the districts of Columbiathe right to vote for President and Vice-President. The 24th amendment proposed in 1962 and ratified in 1964 prohibited the imposition of any poll tax.No person is to be denied right to vote by reason of failure to pay poll tax. According to the 25th amendment passed on February 11, 1971 if Presidentcannot perform his duties due to his physical or mental ailment, the Vice-President will work as the Acting President. This amendment further authorisesthe President to nominate a Vice-President in consultation with the Congress if the office of President falls vacant as a consequence of these amendments.The 26th amendment which enables the right to vote to all citizens of 18 years of age or more was signed by President Nixon on July 5, 1971. The U.S. SupremeCourt upheld the legislation so far as it related to federal elections only.However, the constitution would not have been dynamic as to keep pace with the rapidly changing social and economic conditions if it had banked upon amendmentsalone. Vital changes have been introduced in the original constitution through other means which are as under:142.LawsThe second factor responsible for the development of the American Constitution is the laws passed by the Congress. The framers of the constitution prescribedonly the general outlines of the federal government. The determination of details in regard to the organisation and functioning of the government was leftto the discretion of the Congress. Naturally, laws passed by the Congress have contributed more to the evolution of the constitution than the 26 amendments.The constitution made provision for the establishment of the Supreme Court, but its organisation, tenure and salaries of the judges were left to be determinedby the Congress. Similarly, the constitution prescribed the composition of the two Houses of Congress but the method of election and suffrage were leftto be determined by the State legislatures. Electoral Act of 1887 regulated the election disputes. Original constitution is silent about the organisationof the administrative departments. The Congress, by law determines their number, functions, organisation, etc. Likewise it lays down the budget procedureand has authorised the establishment of a national banking system. The constitution did not make any provision regarding legislative procedure. The lawsenacted by the Congress provided for three readings and various rules for the regulation and control of debates. All these laws dealing with the organisationand functioning of the government have expanded and enriched the constitution to a great extent.3. Judicial InterpretationJudicial decisions and interpretations have also played a major part in the evolution of the American Constitution. So great has been the role of the judiciarythat some commentators of the American Constitution have named the Supreme Court as a continuous constitutional convention. Munro remarks "One might almostsay that it (constitution) undergoes some change every Monday when the Supreme Court hands down its decisions." Justice Holmes once remarked, "Judges doand must legislate." The implied powers of the Congress owe their origin to the Supreme Court. The Supreme Court has given wide meaning to the words usedin the constitution. The powers of the national government to regulate inter-state commerce, railways, telegraph, aeroplanes and radio all owe their originto the decisions of the Supreme Court. The Supreme Court interpreted the clause which lays down that Congress shall have power to raise and support armiesin such a liberal manner as the latter got empowered to draft millions of men even in peace time.15The Supreme Court has strengthened the Centre at the cost of States, quite in keeping with the needs of the time.4. Development by ExecutivePowerful Presidents of the U.S.A. have also contributed a lot towards the growth of the American Constitution. Washington, Jackson, Lincoln and Rooseveltmoulded and developed the constitution by a vigorous use of their Presidential powers. Ogg and Ray have rightly remarked, "In the exercise of their powers,many presidents have taken and maintained position virtually settling constitutional question previously considered upon or even giving the constitutionsome meaning of application never before attributed to it." As for example, President Washington created a Cabinet and began consulting it. Since then,the Cabinet has become a regular organ of the U.S. Government. To take another example treaties require senate's approval. The Presidents have been evadingthis senatorial approval by naming the Treaty as Executive agreement or Gentleman agreement. The latter did not require any approval. Some Presidents havesuccessfully maintained that Congress had no authority to restrict their power to remove executive officials or to send the armed forces to any part ofthe world to safeguard American lives. Sometimes even the heads of the departments have taken decisions which involved interpretation of the constitutionand addition of new meanings to the constitution. Though such orders are subject to judicial review, yet they often go unchallenged and become a regularpart of constitution.5. ConventionsThe conventions have played a magnificent role in the development of the Constitution of the United States. The conventions are not a peculiar feature ofthe British Constitution alone. The American Constitution is equally rich in this respect. The framers of the constitution only prepared a skeleton. Theflesh has been added to it by the usages and conventions which have grown up during the preceding years. In the words of Beard, a great revolutionary changein the American Constitution has not been brought about by amendments or statutes but by customs and conventions. The conventions have changed the veryspirit of the constitution. Some of these conventions are given below:(i) The fathers of the constitution provided for an indirect election of the President. But by convention, the election of the President has become moreor less direct. The fathers of the constitution wanted the electors to act independently while casting their votes in favour of candidates they deemedsuitable for the office of American Presidency.16The electors in practice are pledged before hand to vote for candidates nominated by their respective parties. They act as human robots. Thus the electionof the President has become direct(ii) According to the constitution, the Speaker of the House of the Representatives should be chosen by the House itself. In reality he is the nominee ofthe majority party.(iii) The system of Senatorial Courtesy according to which the Senate accepts the recommendations made by the President for the appointment of the federaloffices, is the result of a convention.(iv) Similarly, the rule that a candidate for the election to the House of Representatives should belong to the constituency which he seeks to representis based on a convention.(v) The practice of the President keeping the leader of the majority party in the Senate informed about the progress of treaty-negotiations, is also theresult of a convention.(vi) According to the constitution, money Bills must originate in the House of Representative but Senate can traditionally consider revenue bills.(vii) Prior to 1940, a convention set by President Washington - i.e., a President not to contest election for more than two terms - was strictly adheredto in America. President Roosevelt violated it as he contested even the fourth time. In 1951 according to an amendment, tenure of President was limitedto two terms. Professor Beard feels that conventions in U.S.A. play as important part as in U.K. However, this is an exaggerated view.The above description shows that conventions play a significant part even in the working of the written Constitution of the United States. But it must beremembered that the extent of the conventional element in the American Constitution is much less than that in the British Constitution. It can, therefore,be concluded that American constitution framed at Philadelphia has steadily expanded through amendments, laws passed by the Congress, judicial interpretations,executive orders and conventions. In the words of Munro, the American constitution is "the horse and the buggy affair projected into a motorised era butin almost every line it has been expanded, modified and brought into articulation with the life of each succeeding age".173 THE AMERICAN FEDERALISM AND CHECKS AND BALANCES"In spite of our fascination with bigness in most walks of life there is a provision of belief that too much power concentrated in one place is dangerous."—SwisherOriginally the American Federation consisted of 13 States, now it comprises 50 units. It was established through centripetal process. The thirteen sovereignStates surrendered some of their powers and created the Union (United States). Naturally enough, they surrendered as little powers as could be possible.The federal government has, therefore, delegated and specified powers. The residuary powers lie with the States. In this way, the constitution leaves avast authority with the States. Woodrow Wilson pointed out that of a dozen great legislative measures carried through by the British Parliament in the19th century, only two would have come within the scope of federal legislature in America (i.e., the Corn Laws and Abolition of Slavery). The constitutioncontains three lists of subjects, namely a list of what the Congress can do, a list of what the Congress cannot do and a list of that the States cannotdo.Division of PowersThe Constitution (Art. I, Sec. 8) enumerates 18 powers for the U.S. Congress. They include, among others, powers to impose and collect taxes and dutiesetc., foreign trade, inter-State commerce, naturalisation, common defence and general welfare of the United States, coinage and weights and measures, promotionof science and other useful arts, constitution of tribunals inferior to the Supreme Court, declaration of war, raising armies and making all laws necessaryfor the execution of these powers.18The other two lists detail powers which are forbidden to the Centre and the States respectively. Section 9 of Article I, forbids Federal Government fromsuspending a writ of habeas corpus or from passing ex-post facto laws, granting titles of nobility, passing laws affecting religious beliefs of peoplein any way and abridging freedom of speech and press. The States are forbidden from making any alliance or treaty with any foreign power, coinage and,among other things, maintaining armies. The 10th amendment provides that the powers not granted to the Centre and forbidden to the States rest in the peoplethemselves. These relate mostly to certain rights of the people which no government can violate. The constitution thus preserves the essential authorityof the people in consistency with democratic principles.The scheme of division of powers in the U.S. Constitution shows that the States enjoy all those powers which have not been given to the Federal Governmentand which have not been forbidden to the States. Such a system of division of powers is bound to make the Central Government weak since it enjoys jurisdictionover specified items only.Thus the fathers of the constitution established a dual system of government, a national government with its own governmental agencies, exercising powersentrusted to it by the constitution and state governments equipped with residuary powers. Each of these sets of government in its own sphere, is autonomousand independent, neither encroaching on the other. Any change in the division is effected through an amendment of the constitution.The Status of States in the American Federal SystemThe fathers of the constitution were keen to make states stronger than the centre. Hence residuary powers were given to the states. In forming the union,the states surrendered only partial sovereignty. The 10th amendment of the constitution specifically provided that they continued to possess an undefinedamount of residual authority. There is no denying the fact that the thirteen states which joined the union were sovereign states but they agreed to surrendertheir sovereignty when they decided to constitute one state, U.S.A. They however, exercise those powers which have been left for them according to theconstitution. In other words, the states are free to exercise residuary powers without federal control. The States do not possess the right of secessionfrom the union though the constitution is silent about it. Since the southern states which attempted to secede, failed miserably in an open conflict (civilwar), it became an eye opener for the member states that the union is indissolvable. The Supreme Court of U.S.A. also in19'Texas vs White' (1869) described the union as "an indestructible union composed of indestructible slates."The states enjoy legal equality though they vary in size and population. The federal Government also owes the same obligations towards these stales. Thislegal equality is evident from the fact that each state has been accorded equal representation in Senate. The Constitution clearly specified that thisprovision cannot be changed by amendments.Federal Guarantees of the StatesIn order to strengthen the position of the states in the federal system, the constitution imposes certain obligations on the federal government, viz., respectfor their territorial integrity, guarantee of a Republican form of government and protection against invasion and domestic violence. A brief explanationof these guarantees would not be out of place.(a) Respect for Territorial IntegrityThe federal government has been required to respect territorial integrity of the States. No state can be made to lose its territory save by its own consent.In other words, no new state can be carved out of the existing states, unless the legislatures of the states affected accord their approval.1(b) Guarantee of a Republican form of GovernmentThe federal government guarantees to every state a Republican form of government.2 However, the constitution has not elucidated the word, "Republican."Hence it has been subjected to varied interpretations. The Supreme Court has refused to pronounce its judgment on the matter which is political ratherthan constitutional or judicial. The President or the Congress also can give their interpretations.(c) Protection against Invasion and Civil CommotionThe constitution enjoins upon the federal government to protect each of the states against invasion and on the application of the Legislature or of theexecutive against domestic violence.3 In case of invasion, the federal government intervenes without awaiting request from the state concerned. Such federalpower flows from the 'federal war power'. For quelling domestic insurrection, the federal government intervenes only when the state authorities make arequest to the central government or federal laws are violated or national property is endangered. The decision regarding federal intervention rests entirelywith the American President. For instance, in 1941 President Franklin D. Roosevelt sent troops to crush a strike in a Californian aircraft factory thoughthe state government made no such request.20(d) Obligation of Slates towards Federal GovernmentThe states also owe certain obligations towards the Federal Government. The States are required to conduct elections to Federal offices as the constitutiondoes not make provision for a separate Federal election machinery. The members of the electoral college are elected in each state in a manner prescribedby 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 Stategenerally in single member constituencies. Further, the slates can take initiative in preparing an amendment of the constitution. Their participation isessential for ratifying the proposed amendment as well.Growth of Federal AuthorityAlthough the Constitution created a very weak centre, the powers of the Federal Government have widely increased. Many factors have been responsible forthis, viz., judicial interpretation, amendments, laws and regulations of the Congress and President, emergencies, personality pf President, etc.1. The Supreme Court has so interpreted the Constitution that the powers of the federal government have increased even at the cost of the Slates. It developedthe doctrine of 'Implied Powers'. This doctrine, enunciated mostly by Chief Justice Marshal of the Supreme Court, provides that the constitution not onlyenumerated certain powers for the Centre, but also gave all those powers which are implied in the enumerated ones. There have been several cases when theSupreme Court, in interpreting the constitution, has helped the Centre through the application of this doctrine. A few examples may be taken to illustratethe application of this doctrine. The constitution empowers the national government to 'regulate commerce with foreign nations and among the several States'.The Congress has derived from this clause of the constitution the power to control all means of transport and communication. From the clauses giving theCongress the power to promote general welfare, it has derived the authority to pass social legislation like old age insurance schemes and other laws ofthis nature. Again, through the powers of the Congress to impose and collect taxes and duties, the Congress got the authority to establish and controlexclusively the Central Bank of the United States. This is how the Federal Government has acquired greater authority which was originally not granted toit by the constitution.2. Many amendments have increased the powers of the federal government. The 15th amendment gave the authority of judicial review21to the Supreme Court over States' legislation. The sixteenth amendment authorised the Congress to levy and collect taxes on incomes of all kinds whereasthe original constitution had prohibited the Central Government to impose direct taxes.3. The Congress has passed many laws which have widened its powers. Similarly, Presidents have issued rules and regulations in the exercise of their authoritywidening these powers of federal government. Presidents like Lincoln, Washington, Roosevelt, and Wilson have exercised dictatorial powers. They have takenaction even without express constitutional justification. President Lincoln declared war against southern States on the question of slavery. Roosevelt's'New deal' policy widened the control of Federal Government over subjects originally within States' jurisdiction.4. Further, the growth of international relations and commerce has also enabled the Federal Government to widen its sphere of authority.5. Recently, leadership of the United States of the western powers has placed unrestricted power in the hands of the Federal Government. In times of emergencieslike economic depression, war and cold war between U.S.S.R. and U.S.A. the people of United Slates look to the National Government for solving all internationalproblems in which the country is directly or indirectly involved.6. The Federal Government makes grants-in-aid to State Governments and even local bodies. Fourteen per cent budget of Slates comes through these grants.Naturally the Federal Government reviews and examines the schemes and policies where the money is spent. The conditions generally laid down for the grantsof financial assistance arc as follows:(a) The Slate shall expend the money for the specific purpose for which it is granted.(b) The State shall itself incur expenditure from its finances for the purpose in hand.(c) The state shall establish suitable administrative agencies.(d) In return for the assistance, the Federal Government will have the right to impose federal standards and regulations, federal inspection and federalaudit of accounts. Besides, the federal government can withhold the grants if the state concerned docs not meet the national standard. This reflects thatthe acceptance of a general grant means acceptance of certain type of federal control over state autonomy. In the words of White, "Where there is moneythere is power and where there is money on this22scale, there is substantial power. There can be a type of fiscal dependence which can erase the constitutional division of power."47. There have come into existence many inter-state-cum-federal organisations of mutual consultation. These organisations help in evolving uniform policiesunder the direction of the federal government.All these factors have, thus, enormously increased the powers of Federal government. The increase in powers of central government, particularly in the presentcentury, has led Rosec Drummond to remark "...our Federal System no longer exists and has no more chance of being brought back into existence than an applepie can be put back on the apple tree." This is an exaggerated view. No doubt, era of Federalism has ended in U.S.A. Instead, era of co-operative Federalismhas dawned. The Federal Government exercises the powers of guidance, supervision and control but that has neither encroached upon the autonomy of the statesnor sapped their vitality. The states still constitute important entities. A vast residue of functions are still vested with them. In the words of Griffith"Their (States) vitality is still very great. The same social conscience that was among the factors causing the Supreme Court to let down the barriersto increased governmental activity nationally has its counterpart in its wide extension of the sphere of permissible state activity". In fact, they havedeveloped their own reserved powers. They still provide a vast number of essential services to the people. They still control the police: the civil andcriminal law, education and local government. In fact, there has been intensification of governmental activity both at National and State level. Munrohas rightly remarked, "There has been an overall expansion of governmental power in the country as a whole and an intensified activity of governmentalactivity at every level, local and state as well as national." The states still are the pivot around which the American political system revolves. However,it will be wrong to conclude that federalism is under eclipse in USA. American Federalism has kept pace with the times. Schwartz correctly remarks 'TheAmerican states may be under constantly growing federal control yet it is unlikely that they will even have to look to Washington in determining theirbehaviour as every area of local government in England and Wales must look to Whitehall and Westminster if it becomes possessed of the desire to embarkupon innovations."23Amendment of the ConstitutionOne of the essential features of any federalism is the rigidity of the Constitution. The U.S. Government fulfils this requirement to a remarkable degree.Article 5 of the Constitution lays down a very cumbersome and difficult procedure for its amendment. There are two methods by which amendments can be effected.They are brought out as follows:1. Amendments may be proposed by two-thirds majority in each House of the Congress. It must be ratified by three-fourths of total number of States. Theratification may be done either by State legislatures or by special conventions held in the States for this purpose. The mode of the ratification is tobe determined by the Congress.2. The States themselves may take the initiative in proposing amendments. If two-thirds of all the stale legislatures apply to the Congress for this purpose,the Congress calls a constitutional convention which shall, on the basis of the original recommendation, propose the amendments. The amendments must beratified by three-fourth of all the Stales either through their legislatures or at specially convened conventions. The mode of the ratification is to bedetermined by the Congress.Out of 26 amendments which have been effected so far, all but one have been initiated by the Congress and ratified by the State legislatures, i.e., Congressproposed them and submitted them for ratification to the State legislatures. Only the 21st Amendment which repealed the 18th amendment, (which had enforcedprohibition) was ratified by conventions in the State.Criticism of Amendment Procedure(a) The Constitution did not fix any time limit for ratifying the constitutional amendments. This results in a great delay in their passage and implementation.Ohio State, for example, ratified a proposal after 80 years. Likewise, in case of child labour amendment proposed by Congress in 1914, only 28 States haveratified it so far. But now the Congress by its resolution can place time limit on ratification. For example, in the case of 18th and 2lst amendments,it clearly laid down that amendment would be lost if not ratified by the required number of States within 7 years.(b) If a State once ratifies an amendment, it cannot go back. But if it rejects once, it can ratify it later provided it feels like revising its decision.24(c) The Constitution prescribes that an amendment may be proposed by the Congress by two-thirds majority in each of its Houses. But it is silent as to whethertwo-thirds majority means the majority of total membership or members present and voting. As a matter of practice, it is the latter interpretation whichhas prevailed.(d) There are, moreover, certain provisions which cannot be amended. For example, the right of every state to equal representation on the Senate cannotbe taken away without the consent of the State concerned. Also no State can be split up into two or more or any State merged with it, without the priorconsent of the legislature of the State concerned.(e) The system of amending the U.S. Constitution is extremely rigid. Between 1789 and 1971 thousands of proposals of constitutional amendments were moved,but only 26 were finally accepted. This shows that U.S. Constitution lacks the virtue of adaptability with the change of time. The requisite 2/3 majorityof the Congress is not easily procured. Hence it has been suggested that only a majority vote in both the Houses of Congress and ratification by two-thirdsof States should be made essential to effect constitutional amendments. The proposal has not, however, been formally accepted as it envisages consent ofthe States and not that of population.(f) The system of amendment is not sufficiently democratic as it envisages consent of the states and not that of the democratic population. The criticsdescribe it as too conservative a system. An amendment ratified by 37 Stales which may have an absolute majority of the American population, can be stoppedby the opposition of one small State from being effective. In other words fourteen small States with, say a little more than one tenth of the total population,may decide to oppose a proposal for constitutional amendment and may thus prevent about nine-tenths of the people from effecting any change in the Constitution.This is not in consonance with the spirit of democracy.Despite the rigidity of the Constitution, the American people have succeeded in changing it as necessitated by the times. Between 1913 and 1933 alone forexample, 6 major amendments were effected. In the words of Prof. Munro, "U.S. Constitution is a living organism. The rigidity has only been provided asthe fathers of the constitution were cautious to avoid all possibilities of capricious changes in the Constitution". According to William Harvard all theamendments except the 22nd had direct or indirect democratising tendency, and have all made some contribution to the conception of a government resting25on a basis of as popular a sovereignty as possible. It may therefore be concluded that despite vehement citicism the constitution has been adaptable andit has not clogged the American progress. In the words of Zinc "In the United States the formal process is burdensome but other methods have grown up whichare much less onerous".5Separation of Powers and Checks and BalancesThe principle of 'Separation of Powers' is one of the most important features of the American Constitution. The Constitution clearly states that all legislative,executive and judicial powers are vested in the Congress, the President and the Supreme Court respectively. There is no other Constitution in which thedemarcation of the three wings of administration is so clear. In India, for example, all legislative power of the Union is vested in the parliament, butthe parliament consists of the President and the two Houses. This shows that the executive has been associated with the legislature in a very active manner.Similarly, in England, parliament is sovereign in every respect and the executive is subordinate to it. However, in the United States, each of the threewings is separate and distinct without being dependent upon the other. It is said that fathers of the American Constitution were deeply impressed by thetheory of 'Separation of Powers' as proposed by Montesquieu. In their attempt to make the three wings as separate as possible, they have made each oneof them independent of each other. The President, for example, has a fixed tenure and is not responsible to the Congress. The Congress is independent ofthe President since it cannot be prorogued or dissolved by him. Similarly the federal judiciary is also independent of both the executive and legislature.No Judge of the Supreme Court can be removed except by a very difficult procedure of impeachment. Thus, as Finer points out, the "American Constitutionwas consciously and elaborately made an essay on the separation of powers and is today the most important polity in the world which operates upon thatprinciple".Checks and BalancesHowever, the American Constitution has not produced a 'clean severance' of the three organs of the government. To secure the liberty of the people the authorityof government was further weakened, i.e., by introducing checks and balances, so that one organ may put a curb on the other. They possibly apprehendedthat an organ of the government, left to itself completely, might degenerate and misuse its power, thus becoming tyrannical and oppressive. The Constitutionhas, therefore, provided for a system of internal checks and balances. According to Prof. Ogg "No feature of American Government, national, state and26often local is more characteristic than the separation of powers combined with precautionary checks and balances. The Executive, for example, is controlledby the Senate in the matter of making appointments to high offices. It is laid down that all high appointments made by the President must be ratified bythe Senate. Again, it is the Senate which ratifies all international treaties made by the President. This power was effectively used in 1919 when the Senaterefused to ratify the Treaty of Versailles which had been accepted by President Woodrow Wilson. The Senate, an important part of the U.S. Congress, thuscontrols the internal administration through its power of endorsing appointments made by the President and also its external policy through its power ofratifying all treaties and agreements to be made with a foreign State. The Senate, moreover, is the court of impeachment against the President and otherhigh officials of the United States including the judges of the Supreme Court.The President in turn, controls the Congress in the sense that all Bills passed by the Congress must be submitted to him for his approval. He may veto abill, however, the Congress can override it by repassing the bill with 2/3 majority voting separately in the two Houses. But such a majority is not easilyavailable. Hence the bills vetoed by the President are generally killed. The President can exercise his pocket-veto during the last ten days of the sessionof the Congress, by keeping the bill pending on the table, neither rejecting it nor passing it. With the end of session the bill is automatically killed.The President can exercise his influence on the Congress by threat of convening its special session if his point of view is ignored. During the specialsession the members of the Congress are not paid TA and DA. Hence they won't like to turn a deaf ear to President's message.Besides the President has been vested with the power of issuing executive orders as well. These executive orders have the same force as the law. Keepingin view his influence in the domain of legislation it has been said "To say that American President does not possess legislative powers is to talk of philosophy."Again, both the President and the Congress have certain checks on the judiciary. The President appoints the Judges of the Supreme Court whose approval isto be accorded by the Senate. Their salaries, etc. arc determined by the Congress subject to certain constitutional restrictions. The judiciary in turnexercises its control over the executive and the legislature through its power of judicial review. It can nullify the laws passed by the Congress and theorders issued by the27executive if they are found to be at variance with the spirit of the Constitution. Thus the judicial review has assumed the shape of judicial veto. TheSupreme Court sets the framework, both negatively and positively, within which the government works.Thus we see that the principles of separation of powers and checks and balances are intertwined in American constitution. These two principles pervade theAmerican political system from top to bottom. Dr. Finer has correctly said, "Not all the objects which the fathers had in view have been realised but theirmain intention to effectively separate the powers has been realised; for they destroyed the consent of leadership in Government which is now so importantin the present age of ministrant politics." Prof. Beard is of the view that the separation of powers is a primary feature of American Government and isconstantly made manifest in the practices of Government and politics.It may not however be out of place to point out that checks and balances which were designed to promote overall equilibrium often have aggravated ratherthan ameliorated the ill effects of separation. The Presidential veto has been abused many a time and the Senate also has stood as an inseparable barrierin the way of American President particularly while according assent to treaties. Such a state of affairs results in paralysing the functioning of thegovernment, particularly if the Chief Executive belongs to one party and the Congress is dominated by the other. President Regan a Republican in the pastand now Clinton, a Democrat have felt pitched against opposition dominated Congress. The Supreme Court has also been overshooting the mark as in case ofinvalidating the New Deal Legislation of President Roosevelt. Hence Ogg and Ray remarked that checks and balances "designed to promote overall equilibriumoften operate rather to aggravate than to ameliorate the ill efforts of separation as for example in the case of the Presidential veto and senatorial assentto treaties."6References1. Article IV, section 3, of the constitution.2. Ibid., section 4.3. Ibid.4. White L.D., The State and the Nations, p. 18.5. Line and others: American Government or Politics, p. 24.6. Ogg F.A., and Ray F.O., Essentials of American Government, p. 39.284 THE AMERICAN PRESIDENCY"Every four years there springs from the vote created by the whole people a President over that great nation. I think the whole world offers no finer spectaclethan this."'—John BrightThe United States Constitution vests executive powers in the hands of one individual—the President of the United States of America. His powers are so enormous,wide and overwhelming that he has been described as the 'foremost ruler in the world'. The office of the American President has been organised on the basisof non-Parliamentary or Presidential type of Government. There are Presidents in Parliamentary democracies too. But their authority is greatly limited.They are constitutional or nominal heads of their State. The Indian President, for example, cannot go against the advice of the Council of Ministers whichis responsible to the parliament. In the U.S.A., on the other hand, the President and his Cabinet are not answerable to the Legislature. The Presidentof the U.S.A. is supreme in executive sphere, making of course due allowance for some devices of internal checks and balances. The American President isnot bound down by any cabinet. He chooses his own cabinet, which is at best his personal team of advisers. It has been rightly characterised as the 'President'sFamily', and the head of the family, the President, inevitably dominates them. Ogg rightly describes him as the 'greatest ruler of the world'. Accordingto Henry he exercises "the largest amount of authority ever wielded by any man in democracy."Quite a number of factors are responsible for this state of affairs. The constitution is very clear and unequivocal in giving all executive powers to thePresident Secondly, though he is indirectly elected by the Electoral College, in actual practice his election has become direct. As such he enjoys a greatermeasure of popular support.29Indeed, the American Constitution has made the President a real executive head rather than a titular one as is the case in parliamentary governments. TheAmerican President, in respect of his powers, is best compared to the Prime Ministers of Parliamentary democracies enjoying the support of a stable majorityin the legislatures. Nay, he is rather both the head of the state and the responsible head of the government. In many other nations, there is a chief ofState whose duties are largely protocol in nature while the Prime Minister is the centre of power. But the American President is the nation's principalspokesman of both domestic and foreign policy.Laski has rightly remarked, "There is no foreign institution with which in any strict sense, it can be compared because basically there is no comparableforeign institution. The President of the United States is both more and less than a king, he is also both more and less than a Prime Minister."2Election ProcedureThe Constitution provides for indirect election of the American President. The President is elected, constitutionally, by an electoral college consistingof as many Presidential Electors' as is the number of members in both Houses of the Congress, i.e., 535. This electoral college is constituted in eachState and consists of as many members as each State has in the Congress, i.e., both in the House of Representatives and the Senate. Since each State hastwo members in the Senate, that means that number of Presidential Electors in each State is equal to the number of its members in the House of Representativesplus 2. The method of electing the Presidential Electors in each State has been left to be determined by the State legislature concerned. Originally theywere elected by the State legislature, but now they are elected directly by the people. The Presidential Electors meet in each State and cast their voteson the day fixed for Presidential election. In a message to the Congress on March 22,1977 President Carter proposed a constitutional amendment callingfor direct popular election of the President and abolition of the Electoral College. However, the proposal could not cut much ice.3The American political system moves alongwith the calendar. The Presidential Electors are elected on Tuesday after the first Monday in November of everyleap year. These electors meet in the capital of each State on first Monday after the second Wednesday in December, and record their votes for the Presidentialcandidates. A certificate of election is then sent to the Chairman of the Senate by each State. On the306th of January, the Congress meets in a joint session, where votes are counted. The person securing an absolute majority of votes is declared elected. Inother words, in counting the majority of votes, the majority of total votes is considered, and not simple majority. The new President is sworn into officeon January 20. In case no candidate secures the required majority of votes, the House of Representatives elects one person from amongst the first threecandidates, securing the highest number of votes. In such a case, each Slate has one vote irrespective of the number of representatives in the House. Ifthis attempt also fails, then after 4th March, the Vice-President automatically succeeds to the Presidential office.Thus we see that the Constitution has prescribed the method of election of the President with great precision. In the opinion of Hamilton, this processof election "affords a moral certainty that the office of the President will seldom fall to the lot of any man who is not in an eminent degree endowedwith the requisite qualifications."Direct Election in PracticeAlthough the Constitution prescribes a system of indirect election, yet in practice the election of the President has become almost direct. The change hasbeen brought about by the growth of powerful political parties in America. Months before the date of Presidential election, the major political partieshold their national conventions and nominate their Presidential candidates.The constitution provided three steps i.e., the choice of electors, the voting by electors and the opening of the electoral certificates in the presenceof the Congress. In actual fact two more steps have developed in nomination of Presidential candidates and election of the electors. This has made theelection direct. A brief explanation of these steps will portray a clear picture of Presidential election in U.S.A.A. Presidential NominationThe constitution never intended such nominations. Hence there is not a word in the constitution regarding such nominations. Informal grooming of candidatesis done before formal conventions of the parties are convened. A national committee of each party calls its own convention and makes the requisite arrangements.The calls are issued in January or February and the conventions meet during the summer. During the interval between call and convention, the politicalparties in each state select their delegates and also equal number of their alternatives, who serve in case any of the regular delegates are absent. Witha full quota of delegates and alternates in attendance, the31Democratic and Republican National Conventions are in fact unwieldy gatherings. National conventions are arranged by socialist, communist and prohibitionparties as well but they small gatherings.How delegates are chosen: In the beginning of the present century, they were named by party conventions held in the states and congressional districts.In 1905 Presidential primary originated. It required delegates to be elected directly. In the next two decades, almost thirty states adopted the systemin various forms. The movement suffered some decline after 1916. In several states, law binds the delegates morally to support the popular choice.A national convention at work: Next comes the meetings of the National Conventions of the parties in different states. 'The thousands of delegates are seatedin the front portion of great hall, with the alternates occupying the rear." They are grouped on the floor by states. A temporary chairman is chosen whodelivers from the stage a keynote speech praising the party's achievements. A committee is then appointed in order to scrutinize the credentials of thedelegates. When its report is adopted a permanent chairman is elected. After these preliminaries are over, nominations for the office of the Presidentare announced by the chairman to be in order. The role of states is taken in alphabetical order. The chairman of the delegation or anybody for him, maymake a nomination. If a state does not propose its candidate, it may yield its place in the alphabet to some other state. After all the nominations havebeen done, voting begins by a voice vote. The role of the states is again taken in alphabetical order and the chairman of a delegation makes amendments."Albama (etc.) caste its vote for so and so," or he may announce a divided vote. Both the Democratic and Republican Conventions decide by a clear majorityof all the member delegates. As such when the polling goes on, the weaker candidates drop out and votes are shifted around on successive ballots. One rollcall follows another until decision is arrived at. For instance, Wilson was not chosen by the Republicans at the Baltimore Convention until 46 ballotshad been taken. At a Democratic National Convention 103 ballots were required to make a nomination.After the selection of the Presidential candidate, party nominee for the Vice-Presidency is chosen in the same manner through the display of less of fury.Though a national party convention in the United States seems to be a unique affair—the great concourse with its flag-bedecked stage and walls, the crowdedfloor...with delegates milling around the blaring bands and loud speakers, the galleries filled with cheering32onlookers, the atmosphere electric with excitement,"4 yet the issue is settled in private conference of relatively small number of party leaders and chairmenof the delegations from the big states. This is followed by a nation-wide Presidential campaign. Each party issues a campaign text book embodying the partyprogramme and biographies of the candidates. Political professionals, public relation experts and local workers help the candidates. Besides, whistle-stopcampaign is launched by the candidates.5B. The Nomination of ElectorsThe next step is the nomination of Presidential electors in the several states. These electors are usually important party leaders or prominent workers.In each State, the political parties put forth their lists of electors who are nominated in whatever way the state laws or party rules prescribe.C. Election of the ElectorsThough the Presidential campaign is carried on with great excitement and emotions yet the election of Presidential electors is a quiet affair. Polling hoursvary from State to State. Every citizen of 18 years of age or more, unless disqualified on certain ground, possesses right to vote. Though in theory thevoters cast their votes for Presidential electors, yet in actual practice such votes are cast keeping in view a particular candidate for the Presidencyfor whom such electors are required to vote. Each of the States chooses as many electors as it has senators and members of representative in Congress.Presidential electors are chosen in each State as a group and not as individuals. All the nominees of the party which polls the largest number of popularvotes in a State are considered to be elected. Since the electoral college is to consist of 535 members a Presidential candidate can get elected only ifhe captures 269 votes of the electors. The system has its defect. A Presidential candidate capturing majority of votes of electoral college may not havecaptured majority of the popular vote.D. Election of the President by the ElectorsThough voting by the Presidential electors is now a mere formality yet it continues to be observed. As provided under the Congressional law, the Presidentialelectors meet on the second Wednesday of December in their respective State capitals and cast their votes for Presidential and Vice-Presidential candidates.E. Transmitting and Counting of VotesThe ballots arc then counted and certificates attesting the result are promptly mailed in sealed covers to Washington where they are opened33in the presence of the members of the Congress. The President of the Senate counts the votes and announces the result which is hardly a guarded secret.Procedure in case no candidate gets absolute majority: If no candidate secures the requisite majority, the issue is decided by the House of Representativeswhich elects by an absolute majority of votes one of the three candidates obtaining the largest number of electoral votes. The members of the House voteStatewise, each State having one vote irrespective of its population. This procedure was adopted thrice. In case the electors failed to elect a Vice-Presidentby a clear majority, the Senate makes a choice out of the two candidates getting the highest votes. The senators vote as individuals and not by States.Only once the choice of the Vice-President was to be made through the menting on Electoral System James MacGregor says, "It is unfair, inaccurate, uncertain and undemocratic." The defects of the system are as follows: (i) The Presidential candidate losing a state by even narrow margin forfeits all the electorate votes of that state; (ii) the winner's electoral votes are unduly inflated out of proportion to his popular vote; (iii) the electors are not legally apt to vote for the candidate who carries the state; and(iv) in case of any candidate failing to secure absolute majority of Electoral college i.e., the Presidential Electors the issue is decided by the Houseof Representatives where each State delegation irrespective of size of the Slate casts only one vote in choosing one of the three top candidates.Inauguration of the New PresidentThe newly elected President is inaugurated on January 20 since the passage of the 20th amendment of the constitution effected in 1933. Prior to this, thenew President used to be inaugurated on March 4, i.e., four months after the November polling. Such a long interval was thought undesirable as during thisperiod, the out-going President could not take momentous decision if emergencies cropped up. At the inauguration the new President takes the oath of officewhich is administered by the Chief Justice of the Supreme Court. The oath runs as follows:"I do solemnly swear that I shall faithfully execute the office of the President of the United States and will to the best of my ability preserve,34protect and defend the constitution of the United States." On January 29, 1977 Jimmy Carter a Democrat, entered the White House as the President of U.S.A.He defeated G. Ford, the Republican. Carter had 37,990,000 votes whereas Ford captured 36,130,000, MaCarthy, an independent won only 611,000 votes. InJanuary 1981, Reagan a Republican assumed the office of the President defeating Carter by a big margin of votes.Bill Clinton of democratic party has displaced the 12 years Republican regime in the 1992 elections and was re-elected in November 1996—elections the firstDemocrat to be re-elected in 50 years.QualificationsThe Constitution provides that a candidate for Presidency must fulfil the following conditions:(a) He must be a natural born citizen of the United States.(b) He must not be less than 35 years of age.(c) He must have lived in the U.S.A. for not less than 14 years.EmolumentsThe salary of the President originally was 25,000 dollars a year. It has been revised from time to time. In 1988 the President was paid annual taxable salaryof $ 2,00,000 and expense allowance of $ 50,000. Besides he gets tax free travel expenses of $ 10,000 a year. Emoluments of the President cannot be reducedduring the term of his office. He is entitled to the use of free residential accommodation known as the White House, a secretariat, a suite of offices,a private pullman car, a yacht and an aeroplane and a country House at Camp David. After retirement, he gets a pension of 63000 dollars per year and astaff support.Tenure and Re-eligibilityThe President of the United States holds office for four years. The Constitution, originally did not put any restriction on the re-election of a President.George Washington, the first President, was elected twice but he refused to contest election for the third term. Since then a convention had been developedforbidding the re-election of a president for more than two terms. The convention was scrupulously observed for a long time but it was violated duringthe war years when President Roosevelt was re-elected for the third and fourth terms in 1940 and 1944. However, by the 22nd Amendment which was ratifiedby the required number of States in 1952, the total term for any President has been fixed at a maximum of 10 years. It means that normally a person35cannot be re-elected for the third time, after the completion of two terms totalling 8 years. But, if the President dies when 2 or more than 2 years ofhis term are over, the Vice-President succeeding him, will have two or more chances of contesting election. But, if the Vice-President succeeds to theoffice when there are more than 2 years to go till the term expires, he will get only one more chance because the maximum term that can be enjoyed by anyPresident is now fixed at 10 years. This is in contrast with the Indian practice where the President may be re-elected for any number of times, thoughin actual practice nobody has contested for more than second term.The SuccessionThe original Constitution is silent as to who shall succeed to the Presidency in case both the President and Vice-President die or their offices fall vacanton account of resignation or removal. An Act passed in 1947 prescribed succession after the Vice-President in the following order: The Speaker of the Houseof Representatives, the President Pro-Tempore (for the time being) of the Senate, the Secretary of the State, followed by other members of the cabinet.The 25th amendment (February 10,1967) sets out the way the office of the President is filled in the event of his incapacity. According to it the Vice-Presidentmay take over the duties of presidency if the President states in writing that he is unable to carry out his duties and if, Vice-President and majorityof the Heads of Executive Departments believe that there is a Presidential disability and send to Congress a declaration to that effect.Removal of the PresidentThe President may be removed from office before the expiry of the normal term through impeachment. The House of Representatives adopts by resolution articlesof impeachment, charging the President with certain high crimes and chooses leaders to direct the prosecution before the Senate which acts as a judicialtribunal for impeachment. Its meeting is then presided over by the Chief Justice of the Supreme Court. The Senate may convict the President by two thirdsmajority of its members present and voting. The penalty cannot extend to more than the removal of the President from office and disqualification to holdany office of trust and responsibility under the Government of United States. The method of impeachment is not an easy one. During the long constitutionalhistory of the U.S.A. only once in 1868, President Johnson was subjected to the process of impeachment but impeachment could not be carried through forwant of a required majority in the Senate. President Nixon would have been impeached in case he had not tendered resignation.36Powers of the PresidentIt is often remarked that the President of the United States wields the largest amount of authority ever wielded by anyone in a democracy. Lord Bryce regardsthe American Presidency as "the greatest office in the world", Hawkins declares that the President of the United States is the foremost ruler in the world.He enjoys real and effective powers as contrasted with the powers of the King or Queen of England or the President of the Indian Republic.Although the Constitution gave limited authority to the President yet, in course of time, this office gathered around itself a vast array of powers, muchbeyond the imagination of the framers of the Constitution. Whereas the Constitution made him only the chief executive head of the Republic, he may nowbe called the chief legislator as well... He has derived his plenitude of powers through various sources which may be summed up as follows.Sources of President's Powers(a) Constitution' An the first place the original Constitution confers certain powers and privileges.(b) Supreme Courts Decision : In the second place, the Supreme Court enhanced his authority in all those cases in which the Constitution was not clear.As for example, the Constitution clearly prescribed the methods of making appointments to various federal offices but was silent about the mode of theirremoval. The power of removal of all federal officials was then vested in the President by the Supreme Court. Then the Constitution authorised the Congressto declare war, but power to terminate war was not clearly vested in any part of the federal government By the verdict of the Supreme Court, this powertoo was vested in the President.(c) Statutes of Congress: A substantial part of Presidential powers has been derived from the statutes of the Congress assigning certain powers and responsibilitiesto him either directly or through implication. Laws are generally passed by the Congress in broad outlines and details therein are left to be filled inby the executive orders of the President. The Congress may also bestow upon him the exercise of wide discretionary powers. As for example, in 1933, theCongress vested in the President the discretionary powers to reduce gold contents of the dollar, etc.(d) Convention and usage: The powers of the President have also been increased through conventions and usages. As for example, the convention of SenatorialCourtesy with respect to appointments has37virtually placed in the hands of the President unfettered powers regarding all appointments. Likewise, he is accepted as the leader of his party and assuch conceded the right to be consulted on all matters affecting the interest of his party inside and outside the Congress. The President can get lawspassed according to his wishes by the use of extra constitutional methods like threat of veto or appeal to the Nation through Radio and Television. Thushe is the chief legislator by usage.(e) Emergency: Lastly, the powers of President increase enormously during emergencies. The President, for example, had almost dictatorial powers, duringthe two world wars.Ferguson and McHenry are of the view that much of the President's authority accrues by virtue of factors beyond the formal powers. Prestige, as chief representativeof the American people and as leader of political party, makes him a strong leader if he chooses the role and has the personal qualities to fill itThe President of America now enjoys extensive executive, legislative, financial and judicial powers which may be discussed as follows.Executive PowersMost important of all are his Executive powers. In the words of Ogg and Ray, "Whatever else he may be, chief legislator, party leader, general custodianof National interest, the President is first of all an executive." He exercises executive powers in the following ways:1. As Chief AdministratorThe President is the head of the national administration. All executive action of the Republic is taken in his name. He is responsible for the enforcementof all federal laws and treaties with foreign States throughout the country. He sees to the implementation of the decisions of courts and enforces theConstitution and laws of the country. He is responsible for the protection of the Constitution, laws and property of the U.S.A. He can use the armed forcesfor this purpose. He is assisted in his immense task by the entire federal bureaucracy as well. In the words of Johnson "as Chief Administrator the Presidentfixes the term and temper and spirits in which the Laws are applied".Besides, he enforces federal law and order throughout U.S.A. As such he is responsible for guaranteeing to every stale a republican form of government andprotecting them against invasion and domestic violence. He can act on his initiative when Republican government is threatened in a particular state orif there is a danger of invasion of the state. Normally in case of domestic violence, President acts only if he is38requested to do so by the state legislature or if the legislature is not in session, by the state governor. He can however act independently, if domesticviolence in a state endangers the execution of federal laws, the security of federal property or the smooth flow of inter-state commerce. For instancePresident Eisenhower sent federal forces in 1957 when the governor of Arkansas called out slate militia to prevent compliance with the order of a federalcourt on desegregation of Negro students. Likewise Kennedy sent Federal troops into the University of Mississipy in 1962 for a similar action.62. As Commander-in-ChiefThe President is the Supreme Commander of the armed forces of the United States. As such he is responsible for the defence of the country. He appoints militaryofficers with the advice and consent of the Senate and can remove them at will. Although the power to declare war vests in the Congress yet the Presidentcan make war unavoidable and necessary by his conduct in administration. As for example, President Truman took Police Action in Korea without authorisationby the Congress. In 1918 President Wilson sent American forces to Siberia to help allied troops when no state of war existed between the U.S. and Russia.Likewise Congress declared war against Germany in 1941 but Navy had begun to fire on submarines threatening convoys to Britain long before that. In factshooting war had started in 1940. During the war, President's military powers increase enormously. He becomes the sole in charge of war operations. DuringWorld War II, President Roosevelt was given almost a blank cheque to conduct war on behalf of the United States. He became a sort of constitutional dictator.Again Vietnam war prompted Congress to give blanket decision making power to the President in 1964. President Nixon committed American troops in Cambodiain May 1970 and the Congress had to accept it as fait accompli. America remained involved in war in Cambodia and Laos despite vehement opposition of theCongress. It did lead to showdown between Congress and the President at a later stage. The Congress passed war power Act in 1973 which provided that thePresident can commit U.S. troops only when there is "an attack upon the United States, its territories or possessions or its armed forces". In other words,Congress limited the President's power to wage undeclared war and strove to restore its own control over war efforts. In the words of Haymen "In this epochof cold wars, half wars and undeclared wars it appears at times that President's power to make war has virtually swallowed the Congressional right to declarewar."739As C-in-C, he decides where troops are to be located and where ships are to be stationed. With his order, troops are mobilised, fleets assembled and militiaof States is called out3. As Exponent of Foreign RelationsThe President represents the U.S.A. in foreign relations. He formulates the foreign policy of the United States. He appoints all diplomatic representativesof the U.S.A. to foreign States with the consent of the Senate. He receives the foreign diplomats accredited to the U.S.A. He can negotiate treaties andagreements with foreign States in his discretion.8 But all treaties with foreign States must be ratified by two-thirds majority of the Senate. This isno doubt a limitation on his authority regarding the conduct of foreign relations. But the President is not to face any difficulty if majority in the Senatebelongs to his party. The President is, however, placed in a difficult position when majority of the Senate is hostile to him. President Wilson's effortsregarding the membership of the League of Nations, for example, were foiled by the hostile Senate. As a matter of fact, the President has a position ofvantage in the conduct of foreign relations of U.S.A. since he is placed in a key position. He has unfettered freedom to negotiate treaties. It is onlyin the final stage that the treaties are placed before the Senate. Sometimes it becomes difficult for the Senate to reject them at the final stage. Otherwiseif he is not sure of senatorial approval he can appeal 'unto caesar'. In June 1979 Carter signed Strategic Arms Limitation. Treaty with Brezhnev to restrictchances of nuclear wars. He addressed Joint Session of the Congress. The speech was televised. The Senate had to accord approval.Further, the President can enter into 'executive-agreements' which do not require ratification by the Senate. Executive agreement is a method to bypassthe recalcitrant Senate. It is a sort of pledge of certain action by Executives of two countries. Gentlemen's agreement between Roosevelt and Emperor ofJapan is an example. President Roosevelt agreed to persuade Congress to kill exclusive legislation and Emperor of Japan agreed to prohibit the emigrationof coolies. The Atlantic charter is another example of such an agreement. In 1969 the President entered into 224 executive agreements. The Treaty thatterminated Vietnam war in 1973, was called an agreement and not submitted to Senate for approval.The Congress can also confer authority upon the President to make war agreements with other nations. Reciprocal Trade Act, 1934, for example, authorisedPresident for three years to enter into trade40agreements with foreign countries and lower the tariff rules by proclamation to the extent of 50 per cent without the consent of the Senate. The power wasextended upon 1945. These agreements are no less important than others.Further, the President has the sole authority to extend American recognition to a new foreign State. It was according to this right that President Rooseveltaccorded recognition to the Soviet Government in 1933. It was on account of the wilful policy of President Truman, Eisenhower, Kennedy and Johnson thatthe People's Democracy of China was not recognised by America till 1972. The power of recognition is an important instrument of foreign policy.Secret Diplomacy: President may resort to secret diplomacy and enter into secret agreements with foreign powers and commit himself to a specific policy.Before and after U.S.A.'s entrance in World War II many secret conferences took place between President Roosevelt, British Prime Minister and heads ofother governments. Some of the agreements arrived at were made public, others were kept secretAll these facts clearly show that President of the United States is the director of foreign relations. In the words of Ferguson, "As in military affairsthe President dominates the field of foreign affairs."9 Washington, the first President, proclaimed the policy of 'American neutrality' in 1793. PresidentMunro enunciated the famous 'Munro Doctrine'. President Wilson and President Roosevelt steered the ship of the State safely during the first and secondworld wars respectively. President Truman propounded his 'Truman Doctrine.' President Kennedy decided American relations with foreign States with fullvigour and force. President Carter, Reagan and George Bush in particular did not lag behind in this respect. The Supreme Court described this power ofthe President as "delicate plenary and exclusive."4. AppointmentsThe President makes a large number of appointments to the federal services. The power of making appointments is the most important and effective power inthe hands of the President It enables the President to command the allegiance of a huge number of federal officers and secure their support for implementationof his policy.There are two categories of federal Services, i.e., 'Superior Services' and 'Inferior Services'. Superior Services are appointed by the President with theconsent of the Senate and members of the 'Inferior Services' are appointed by the President alone, according to41civil service rules. The officers belonging to superior category number over 1,00,000 and their tenure of service is generally four years coinciding withthe Presidential term. Out of these services, certain appointments are ratified by the Senate without any objection even if the majority in the Senateis against the President. For instance, the Senate would not ordinarily interfere in the President's choice regarding the appointments of his own Cabinet,i.e., heads of the federal departments, diplomatic representatives, military and naval appointments, especially during war. In all other appointments,the Senate exercises its power to reject or accept President's nominations. In 1925 appointment of Warren (as Attorney General) made by Coolidge was disapprovedby the Senate. In 1989 appointment of Tower as Defence Secretary by President Bush was rejected by the Senate. Such examples can be multiplied. The President,however, has no difficulty in seeking such approval if his own party holds majority in the Senate.A number of services especially of local nature are appointed by the President according to a convention, commonly known as 'Senatorial Courtesy'. The Senateusually ratifies an appointment of this nature if the Senator from the State in which the appointment is made, approves of it. But the Senators shouldbelong to the President's party. The President can also evade the consent of the Senate in making appointments to higher offices if he so desires. He mayfill a vacancy temporarily during the recess of the Senate. It is to be submitted to the Senate when it holds its session but in spite of objection bythe Senate, the appointment may hold good till the end of the session. And the same person may be re-appointed by the President after the end of the sessionif at all he is removed during session.Power of RemovalThe constitution provides that civil officers may be removed by impeachment if convicted of treason, bribery or other high crimes or misdemeanors. It is,however, silent as to how and by whom they are removable for incompetence or for the good of the country. The critics are of the view that if concurrenceof the Senate was necessary for appointments why should it not be required for removals? The Congress made an attempt in 1867 to prevent the removal ofcertain office bearers by President Johnson. By the tenure of office Act, 1867, it provided that any person holding a civil office conferred by the Senateshould remain in office until his successor was appointed in like manner. The Act was repealed at a later stage and is considered as an unconstitutional42enactment. In 1876, Congress again attempted to restrict the authority of the President by legislating that certain classes of post masters were not tobe removed except with the advice and consent of the Senate. President Wilson challenged the constitutionality of this restriction when he summarily removeda post master without concurrence of the Senate. The concerned post master carried the matter to the Supreme Court which decided in favour of the President.Henceforth, this has become the sole authority of the President to effect removals. Certain classes of officers, viz., judges of federal courts, membersof various boards and those appointed through civil service commissions are exempt from removal till they violate service conditions.During the last over 200 years functions of the Executives have become manifold. The Congress has significantly enhanced President's authority regardingsupervision of. administrative agencies. He coordinates the work of various departments, lays down policy to be followed by them and determines the organisationaldetails to high executive orders.Legislative PowersConsistent with the theory of Separation of Powers, the constitution intended the President and the Congress to be in separate apartments. Hence the Presidentdoes not possess the authority to summon, prorogue and dissolve the Congress. He cannot initiate any Bill directly in the Congress. The President, unlikethe British or Indian Prime Minister, is not the leader of the majority party in the House. He cannot even sit in the Congress or participate in its deliberations.He has thus no direct control over the legislature whatsoever. The Congress is the real law-making body. The President can persuade and request the Congressfor enactment of a particular law but he cannot threaten it as is the case with the British Prime Minister. The Congress may make laws against the wishesof the President, and he must execute them. The position, however, is not so desperate as it appears to be. During the course of time, the President hasacquired a vital share in legislation. He has virtually become the 'Chief legislator'10 in practice. In the words of Dr. Finer, "The constitution intendedthat the Executive should be more than a mere executive, it very considerably modified the pure idea of separation of powers. He has become a very activelegislative leader as well an executive." Another critic aptly remarks, "To say that American President docs not possess legislative powers is to talkof philosophy." Some of his legislative powers may be summed up as follows:431. Veto PowersAll Bills passed by the Congress must be referred to the President for hisfinal approval. The President can deal with them in three different ways:(a) He may give his assent to a Bill referred to him and the Bill will become an act.(b) He may reserve the Bill with him in which case it becomes a law at the expiry of ten days without his signatures provided the Congress is still in session.The Bill in such a case is killed if the Congress adjourns before the expiry of ten days. This is known as Pocket Veto.(c) He may reject a Bill and may return it to the House with or without amendments. In such a case, the Bill may be repassed by the Congress by its twothirds majority in each House and then it will be obligatory on the part of the President to give his assent.His pocket veto power is an effective legislative power in the hands of the President. During the last ten days of the session of the Congress the possessesan absolute veto power. It is interesting to note that towards the end of a session, numerous Bills and resolutions are passed by the Congress in orderto clear up its arrears. A considerable number of last minute bills can thus be killed by the President if he is against them by his inaction. The factis that this power has been frequently used by the various Presidents as they do not owe an explanation for inaction to the Congress. Hence Pocket vetois considered absolute as the Congress does not have opportunity, to override it. The pocket veto has been used over 700 times.Otherwise too, a Bill rejected by the President is to be re-passed by two-thirds majority of Congress in each House. This much majority in the Congressis not always available in favour of a particular Bill. The result is that most of the Bills rejected by President are ultimately killed. Even the Presidentmay check the enactment of a particular legislation by giving a threat of his direct veto in advance.The veto power was in fact meant to be a "salutary check upon the legislative body." Eight presidents before civil war did not exercise veto at all. Washingtonused it twice, Madison used 7 times, Grant 94 times, Theodore Roosevelt 82 times and Wilson 44 times. However certain presidents made frequent use of it.Cleveland exercised veto 413 times whereas Roosevelt and Truman made use of it 635 and 250 times respectively. Eisenhower used veto 181 times whereas Reaganonly 22 times. Ford in his short tenure of 2 years used veto 72 times.11 Keeping in view such a frequent use of veto by certain Presidents Munro remarks44"What was intended therefore as a weapon of executive self defence, has developed into a means of guiding and directing the law-making authority of thenation. It has been expanded into a general revising power... it has developed the president into something like a third chamber of Congress thus makingthe chief executive a more active figure in legislation than he was originally intended to be."12 This is rather an exaggerated view. Of the 1195 regularvetoes applied by the Presidents before Eisenhower, 58 were overridden by the Congress. Laski remarks "It cannot be said that the power is a great oneor that it has been widely used and Congress can always overrule the President by a two-thirds majority of the members who constitute a quorum in eitherHouse."13Threat of veto: Even the threat of veto hangs like a sword of Damocles on the head of the Congress. The Congress men do not like to waste their breath ona Bill which ultimately is likely to be vetoed by the President. Hence it is not an empty threat. It is a familiar weapon of Presidential intervention.President Truman used this device to the maximum.2. MessagesThe President may send messages proposing some legislative measures orally delivered to the House or sent in the form of a document. As the messages comefrom the highest functionary of the State, these cannot be easily ignored by the Congress. President's message stirs the nation and it is one great publicdocument which is widely read and discussed. In fact, many laws owe their origin to the Presidential messages. The famous 'Munro Doctrine' enunciated byPresident Munro, was transmitted to the Congress through a message. A Presidents' message may be primarily intended for foreign consumption. Its principalpurpose may be to inform some foreign power regarding U.S.A.'s attitude on some phase of international policy. For example, President Wilson sent messagesto Congress during years preceding U.S.A.'s entry in the Great War, just to let the European powers understand the U.S.A.'s attitude towards certain featuresof the great War. President Roosevelt's messages in 1941-45 also were motivated with the same desire. President Eisenhower submitted as many as 225 specificlegislation requests to the Congress through messages. President Nixon introduced new practice of communicating short messages to the congress in placeof one comprehensive message. Referring to the importance of such messages Munro has remarked "The President is the country's official spokesman on mattersof foreign policy but in as45much as the support of Congress is needed to make President's declaration of policy effective, it is appropriate that such pronouncements be made in theform of messages to the national legislature."143. Special SessionsThe President has the right to convene special sessions of the Congress. All important laws were passed in 1913 in special sessions convened according tothe wishes of President Wilson. The practice of convening special sessions of the Congress was very common previously. But under the new calendar introducedby the Twentieth Amendment, the need of special sessions has become less because the interval between regular sessions has been lessened. The importanceof such sessions lies in the fact that members are not to be paid T.A. and D.A. when they are called to attend such special session. This has a deterringeffect on Congressmen as cost of living is fairly high in U.S.A. and they won't like the President to make frequent use of this power to embarrass them.4. PatronageThe President has extensive patronage in his hands. He makes a large number of appointments in the federal services. The senators and Representatives alwayswant to win the President's favour in order to secure jobs for their supporters and friends. The Presidents of the United States have often made use ofpatronage and bargained with members of the Congress to get their proposals for legislation passed by the latter. In the words of Munro "The Presidentcan easily drop a hint to the heads of the departments that Congressmen who show themselves rebellious are not to be given recognition when the loavesand fishes are to be doled out."15However, the Congress overcomes his threat to withhold patronage through the use of senatorial courtesy. This is mere refusal to exchange courtesies butit is meaningful.5. Appeal to Create Republic OpinionThe President is not only the Head of the Republic but also the leader of the nation. His office carries an inherent respect. The nation listens to himwith rapt attention. Whenever he finds that the Congress is pitched against him, he can make direct appeal to the nation, and may create public opinionagainst his opponents in the Congress. There are instances when this method was effectively used by the President to put the Congress on the right track.He exercises this influence through the media of press, radio and the television. Munro describes it as an appeal46to Caesar. Franklin D. Roosevelt introduced a series of fireside chats over the nation wide radio network. These speeches throw a feeler. Reaction of thepublic if favourable the Congress is automatically influenced. Eisenhower also opened his mind to news and television cameraman. Kennedy sought publicsupport by television, Wilson started meeting the press.6. Informal ConferencesMost of the legislative programme of the Congress is discussed by the President at the dinner or tea table with the prominent party leaders in the Congress.The President, in fact, experiences no difficulty if his party has a majority in the Congress. In important matters pertaining to foreign affairs he mayeven consult the leaders of the other party Eisenhower frequently called democratic party leaders for consultation. In the words of Johnson, "a competentexecutive who knows the temper of Congress can bring many important issues to a successful termination by these informal conferences."7. Delegated LegislationIn addition to the immense influences exercised by the President on the Congress, in the way referred above, he can legislate on his own authority as well.He has the power to make rules and regulations in the form of Executive orders. In most cases, the Congress passes laws in general outlines. The detailsare left to be filled by the Executive. The rules and regulations thus made have the force of law. This is known as delegated legislation or rule-makingpower. This power has increased immensely during recent years. President Roosevelt is supposed to have exercised this power extensively. He is said tohave issued 3,703 executive orders during his Presidential career prior to 1944. During the same period the Congress passed only 4,553 laws. Though Presidentis fairly powerful in the legislative field yet we can agree with Laski who remarked "The President is never the master of Congress except in relativelybrief intervals of emergency."16Financial PowersAlthough the control over federal finances has been vested in the Congress, yet in actual practice the President directs and controls finance. It is underthe direct supervision of the President, that the budget is formulated by the Bureau of Budget. It is placed before the Congress which can amend it inany way. But the general practice shows that the budget is passed as it is. Very few members of the Congress understand the technicalities involved inthe Budget and it is47difficult to amend it on account of its technicalities. The President is thus the general manager of the financial affairs of the government.Judicial PowersLike all other chief executive heads, the President of the United States enjoys the power to grant pardon, reprieve or amnesty to all offenders convictedfor the breach of federal laws. He cannot pardon a person who has been convicted by inpeachment or for offences against the laws of the state. The Presidentappoints the judges of the Supreme Court with the consent of the Senate. Thus he enjoys some judicial patronage.Party Leader: He is the leader in chief of the party. The White House is the biggest pulpit in the country. The Nation looks to the President for guidanceon public issues. Every presidential broadcast induces the Congressmen to fall in line with him. He exercises substantial influence in legislation as partyleader. In national emergencies he is the saviour of national interests. As such while a party leader his partisanship is to be within limits.17Position of the American PresidentA perusal of the powers of the U.S. President proves beyond a shadow of doubt that he is one of the most powerful heads of the State. His powers are bothreal and effective unlike that of his prototype, the Indian President or the Queen of England. Here lies the justification of Sir Henry Maine's remarksthat "The American President rules but does not reign." The fathers of the American Constitution took all the powers of the British King and gave themto the President, only restraining them where they seemed to be excessive". This probably is the best explanation of the huge powers of the American President.In the words of President Wilson himself, the nation as a whole has elected him and the nation is conscious that it has no other political spokesman. Hisis the only voice in affairs. Let him once win the admiration and confidence of the country, and no other single force can withstand him, no combinationof forces can easily overpower him. He is the representative of no constituency but of the whole nation. He is also the ceremonial head of the Republicand performance of any dignified function is incomplete without his presence or message. A comparative study of the American President viz-a-viz BritishKing and the Prime Minister prompts us to agree with Laski's remarks that "The President of the United States is both more or less than a King; he is bothmore or less than a Prime Minister. The more carefully his office is studied the more does its unique character appear."48It may not be, however, out of place to point out that much of the President's authority accrues from the factors beyond his formal powers. "President asChief representative of the American people and as leader of his political party makes him a strong leader if he chooses the role and has the personalqualities to fill it."18 President Wilson rightly remarked, "The Presidency has been one thing at one time and another at other time varying with the manwho occupied the office and with circumstances that surrounded him." There have been strong Presidents like Jackson, Lincoln both the Roosevelts and Reagan.They led and the Congress toed their line. There have been weak Presidents like Hoover, Buchaman, Pierce and Carter who followed while Congress led. Thusmuch depends upon the personality of the President and the circumstances through which the country is passing at a particular time. A period of crisisnecessitates a strong President whereas a person of mediocre ability can also quite succeed in a tranquil period. Roosevelt's greatness as a leader liesin his vigorous personality and capacity to tide over economic crisis and meet early challenges of the war.However it may not be out of place to point out that the President can have smooth sailing and face tempestuous storms in case his party enjoys majorityin the Congress Senate in particular. Treaties and significant appointments are subject to the approval of the Senate. If Senate is dominated by the oppositionparty his work is likely to be impeded and on account of non-functioning, his election the second time remains in jeopardy. President Clinton a Democratis presently facing such a baffling situation. Since November 1994 elections both in the Senate and the House, the Republican have gained substantial majority.In the Senate consisting of 100 members his party has been left with 48 members whereas in the House of Representatives, the Republicans have 230 membersagainst 204 of Democrats and one Independent. This loss of Democratic control of Congress meant that Republicans would have the power to block PresidentClinton (a Democrat) agenda for the next two years and possibly pass their own proposals over his veto. President Clinton who got elected on the plankof 'change' failed to bring about change fast enough for the people's liking. Hence his party suffered reverses despite his signal achievements in theMiddle East, Haiti and in Ireland. The electorates focused their attention on domestic problems and wanted to bring about a change in the way Washingtondoes business. This had made the position of the President fairly weak and he has started realising that he49will have to seek cooperation of the Republicans to implement the changes American public has so vehemently demanded by rejecting his party at the hustings.18A The alleged sex scandals have affected Clinton's position adversely.President and British KingThe Queen of UK and President of USA are heads of their respective states. Both are the supreme command of defence forces and both perform commercial functions.Both receive foreign dignitaries and ambassadors accredited to their respective countries; both hold receptions and deliver formal speeches. Evidentlythis seems to be quite onerous schedule of both these functionaries. But similarities end here. The two different political systems have in fact made allthe difference. In parliamentary system the head of the state is a mere constitutional ruler whereas in Presidential system he is the head of the Governmentas well. As such in Britain the Queen is a constitutional head of the state performing mostly ceremonial functions. The American President being both thehead of the state and that of the national administration performs the ceremonial functions which, according to Professor Laski, constitute merely thedecorative penumbra of office.More than the KingIt has been rightly said by the Laski that the President is both more and less than the king of Great Britain.President is more than the King because he is both head of the state and head of the Government. He is the real executive. His powers are enormous and authorityonerous. King/Queen, on the other hand, is only head of the state. The governmental powers are exercised by the Council of Ministers headed by the PrimeMinister.Secondly, the President is the boss over the Cabinet. He constitutes cabinet of his choice. He can include even non-party men in the cabinet. The Cabinetis considered as a body of his boyerrands. He can oust them whenever he so likes. Lincoln once ignored the unanimous advice of his cabinet and pronouncedthe decision at the end of cabinet meeting '7 Nays one Aye. Ayes have it' President alone had favoured the proposition. The Queen cannot take decisionsof her own ignoring the advice of the ministers.. The Ministers in UK are the real executive and the Queen being a nominal head has only the right to beconsulted, right to encourage and right to warn. Bagchot attaches great importance to these rights.Thirdly, the President is the real commander-in-chief. He can assume even the command. Half a dozen Presidents of USA have been50military officers. He cannot declare war but can create conditions which compel the congress to declare war. In UK Crown is the Supreme Command of the forcesand not the king. War is decided by the Crown. King is only a formal approval agency. The decision is that of the Ministers and their leader the PrimeMinister.Fourthly, the President possesses the veto power over the Bills. His veto and Pocket veto along with his messages to the Congress, informal conferenceswith the congressmen, threat to call special sessions of the Congress and his authority to issue executive order in case of emergencies or when Congressis not in session make him Chief Legislator. The Monarch does not exercise any such authority. She does however read speech on the opening day of the sessionbut even.that speech is a written document designed by the Prime Minister. The King (now Queen) signs on the dotted lines. Even she has ceased to be asigning machine as commissioners do the job for her.Fifthly, Bureau of Budget frames the Budget under the President's guidance which is generally accepted by the congress. The King/Queen has nothing to dowith the budget It is the prerogative of the ministers.Less than the KingIn certain aspects the President is less than the Monarch of Britain. British Monarch holds office for life on hereditary basis whereas the President canhold office maximum for ten years. Hence it is said that king reigns but does not rule whereas President rules but does not reign. His life tenure makeshim reign.Secondly, the Monarch is the head of the society, head of the church and the head of the nation being non-partisan. The President being an elected functionaryis basically a party man. As such he is neither the head of the society nor that of the church. However, he does not cease to be the national leader thoughhe does not command that respect of the head of the nation as the Monarch does. Ogg remarks "...with the king in Buckingham Palace people sleep more quietlyin their beds."19Thirdly, the Queen addresses the Parliament, can prorogue it and dissolve the House of Commons. No such power is vested with the President. In fact theAmericans believed in theory of separation of powers. Hence they did not give the President to play that direct role in the legislation of the country.The President has indirect legislative authority which of course is immense.51Fourthly, the Queen is the symbol of Commonwealth of Nations. As such the countries which were once dependencies of Great Britain and after attainment ofIndependence did not like to sever links with Great Britain decided to form Commonwealth of Nation with Monarch as the presiding genius. No such positionis enjoyed by the President of USA as an association of this type does not exist in that part of the globe.It can therefore be concluded that the American president holds the greatest and the highest political office in the world. The American president doeshave a halo of glory though not of sanctity round him. According to Sidney Hay man, he combines the sentimental aura of the crown with work day laboursof a unitary Prime Ministership.After comparing him with the king of Great Britain let us compare him with the elected functionary of Great Britain — the Prime Minister who, accordingto Ramsay Muir, is "adorned with such plenitude of power that no other constitutional ruler in the world possesses not even the President of USA."Comparison with British Prime MinisterAccording to Prof. Laski there is no foreign institution with which, "in any basic sense", the American Presidency may be compared. However, as the realexecutive heads of two countries the American President and the British Prime Minister may be contrasted in respect of their functions and powers, whichare as follows.1. The American President's term of office is secured constitutionally. He cannot be removed before the expiry of a period of 4 years unless impeached earlier,by the Congress, but it is a very difficult and complicated procedure. The British Prime Minister, on the other hand, depends for his term upon the backingof House of Commons. He continues in office as long as he enjoys the support of the majority party in the House. He must vacate his office, as soon asthe confidence reposed in him by the majority is withdrawn.2. The American President is indirectly elected by the Electoral College though the election has become direct. The British Prime Minister, on the otherhand, is appointed by the Queen from the majority party in the House. He actually represents only a constituency from which he is elected. The AmericanPresident in the words of Wilson "is the representative of no constituency but the whole people."3. The President is the head of the State as well as of the Government. But the Prime Minister is only the head of the Government.524. The President is not responsible to the legislature for his action, whereas the Prime Minister is answerable and accountable to the House of Commons.The President, moreover, does not guide the course of legislation, nor is he a member of the Congress. His influence on the legislation is indirect thoughvery effective at times. The Prime Minister, on the other hand, is the leader of the House of Commons and directly steers the course of legislation.5. The American President is helpless if the majority in the Congress is against him. He cannot get all the necessary legislation enacted. The British PrimeMinister is always the leader of the majority party and can get the necessary legislation passed. Threat of dissolution of the House of Commons standslike sword of Damocles on the heads of members of House of Commons. In this respect he is comparatively more powerful than the American President. RamsayMuir remarked "the Prime Minister is adorned with such plenitude of power that no other constitutional ruler in the world possesses, not even the Presidentof U.S.A."6. The President possesses the veto power over laws enacted by the Congress. No such power has been vested with the Prime Minister. However, President'sveto power except pocket veto is not final. His veto can be vetoed by the Congress. Hence the President may not always be sure of enactment or rejectionof legislation as per his wishes.7. The Prime Minister is only the head of his Cabinet. Since the Cabinet includes the leading party members with considerable backing, he cannot easilyafford to ignore the advice of the Cabinet. He acts only as the leader of the cabinet. The American President, on the other hand, is the boss and the Cabinetmembers are his subordinate assistants. He is the master of his cabinet The Cabinet members are his advisers and said to be his boyerrands. They cannotdisplease their boss.8. The American President's power of making appointments and formulating treaties is subject to approval by the Senate. There is no such restraint on thepowers of the Prime Minister. All high appointments and treaties are made by the Prime Minister although formally they are made under the signatures ofthe Queen.9. War in Britain can be declared by the Crown which means in actual practice the Prime Minister. In USA the President though commander-in-chief cannotdeclare war. The Congress can do so.10. In USA Budget is prepared by the Bureau of Budget under his supervision but Congress can accept or modify it. In UK the Budget introduced by the Chancellorof Exchequer under the direction of the53PM is apt to be accepted by the House of Commons otherwise House faces dissolution at the hands of the Prime Minister.11. The American President derives his powers mostly from the Constitution. The Prime Minister of England, on the other hand, derives his powers from constitutionalconventions. Theoretically all power is vested in the Queen and the Prime Minister and his colleagues are appointed only to aid and advise her. But inUK there is big divergence between theory and practice. The Queen is only a constitutional ruler or a constitutional parison with the Indian PresidentThere is a great deal of difference between the American and Indian Presidents. The American President is the real executive, while the Indian Presidentlike the British Queen is only a titular head.The American President is both the head of the State and the Government, while the Indian President is only the head of the State. The American Presidentis elected more or less by the direct vote of the people while the Indian President's election is absolutely indirect. The American President holds officefor 4 years and can seek re-election only once, whereas the Indian President holds office for 5 years and can be re-elected for any number of terms. TheAmerican President is neither responsible to the legislature nor is part of it but the Indian President is a part of the legislature. (The Indian Parliamentconsists of the President and two Houses).Both the Presidents, however, can be removed only by impeachment, though the methods of impeachment differ. The Indian President can be impeached by eitherHouse of Parliament whereas in America it is the upper House—the Senate, which has the sole power of trying impeachment In India, on the other hand, eitherHouse of Parliament will have such power provided the other House has preferred the charges.So far as the comparison of their powers and position is concerned it has been usual to regard the American President as wielding "the largest amount ofauthority ever wielded by any in a democracy." But a perusal of powers conferred upon the Indian President by the Constitution shows that the Indian Presidenthas, at least on paper, far more formidable powers. Leaving aside his vast executive, legislative, judicial and financial powers, his emergency powersare unprecedented. By an exercise of these powers, he becomes the kingpin of the whole constitutional machinery, both Central and States and the countryis transformed into a unitary State. The superiority of the Indian President over the American President is seen in the following facts:54The American President provides over a weak Centre while the Indian President does so over a strong one. In the American Constitutional system, the Statesoccupy a place of vantage and the Centre occupies a position definitely of inferiority. In case of India on the other hand, the Centre has been made farstronger. Particularly the emergency powers given to the Indian President to suspend the autonomy of the States in limes of national crisis are such asare not enjoyed by the American President. The Indian President can suspend Constitution in a State and declare emergency either on the recommendationof the executive of the State and dissolve the Legislature and dismiss the State Council of Ministers. In financial emergencies, the Indian President hasthe power of reducing the salaries and allowances of all Government officials, whether of the State or of the Union, including the salaries and allowancesof the judges of the Supreme Court and High Courts. Such a control over the judiciary is possessed only by the Indian President.Apart from the emergency powers, the President of India has been given a formidable list of executive, financial and legislative powers as well. He is alsothe Supreme commander of the armed forces of India and can take an action in case of an imminent or actual aggression against India on the advice of thecabinet. Proclamation of external and internal emergency by the President and their subsequent revocation after the defeat of the Congress Party are theexamples. Moreover, such powers are exercised on the advice of the Council of Ministers.But this is only one side of the picture. In reality the Indian President occupies a position of far less strength than the one occupied by the AmericanPresident. The President of America is both head of the State and of the Government. The Indian President is head of the State but not of the Government.The Prime Minister of India is the head of the Government.In the next place, the Indian President has a lesser veto power than that held by the American president. The American President possesses double veto power.He can veto a bill passed by the Congress unless it is once again passed by the two-thirds majority of both the Houses. Then he has his 'Pocket Veto' poweraccording to which a bill which is lying with him for signatures dies an automatic death if the session of the Congress comes to an end within ten daysduring which he is required to return the Bill. On the other hand, the Indian President has no such 'Pocket Veto' power. Besides, his veto can be overriddenby simple55majority in parliament. But the Indian President has the power of previous consent and the power of veto in certain bills within the sphere of jurisdictionof the State legislature. His veto is absolute in this respect. The American President has no such power at all. The Indian President can dissolve theparliament while the American President does not possess the power of dissolving the Congress.However, in actual fact Parliamentary System of Government itself is the real check on the powers of the Indian President. The President is provided witha Council of Ministers which is required to aid and advise him in the discharge of his duties. Of course, originally the Constitution did not demand ofhim to follow the advice tendered by the Council, but in actual practice the President found it very difficult to go against the advice so tendered. Afterthe passage of 42nd Amendment Act, 1976 he is bound to act on the advice of the Council of Ministers. In America, the Cabinet officers are mere boy-errandsof the President. They are not responsible to the Congress nor have they any power to speak on the floor of the House. They are appointed by the Presidentand are liable to be dismissed by him. They have no such status as the Cabinet members in India have.As Laski rightly says: "The President (American) in a word, symbolises the whole nation in a way that admits of no competitor while he is in office. Thevoice of a Cabinet Officer is, at best, a whisper which may or may not be heard". In other words, it is the American President who determines the policyof the Government independently. The Cabinet ministers are his mere assistants. In India, however, the Cabinet occupies a position very much similar tothat occupied by the British Cabinet. It is the Cabinet which is responsible to the people through its responsibility to the Lower House. The Presidentprior to the passage of 42nd Amendment did not dare disregard such advice as was rendered to him by the Cabinet since it is the latter which is in controlof the majority in the Lower House. It is this fact which greatly limited the powers of the President in actual practice in spite of the fact that he wasnot constitutionally required to follow the advice of the Cabinet before the enactment of 42nd Amendment. The fact is that whereas the American Presidentis a real executive head, the Indian President was expected to be a constitutional head since the very implementation of the Constitution.Thus it is evident that there is a great difference between theory and practice regarding the powers and position of the Indian President. In theory, thepowers enumerated in the Constitution belong to the President but in reality they belong to the council of ministers (headed56by the Prime Minister)—a responsible body answerable for its policies and actions to Parliament. Though the executive authority of the Union is exercisedin the name of the President, it is actually exercised by the council of ministers. It is the Ministers who take all the decisions although these decisionsare executed in the President's name. However, it was feared that in times of constitutional crisis, these powers might turn out to be very real as happenedin case of Weimer constitution of German Republic after 1928. Dictatorship was established in that State by the President by exercise of emergency powers.It was apprehended that in emergency the Indian President could be much stronger than the American President is or can ever be. But this was only a conjecture.The Head of the State in a Parliamentary Government cannot afford to be a real head. Even in Emergency he is expected to act on the advice of the Cabinet.Both the External and Internal Emergency was proclaimed by the President on the advice of the Prime Minister. Emergency declared as a result of Chineseaggression on Indian borders was a mere mouth-piece of the Cabinet, in fact the Prime Minister. It provided an opportunity for the study of the actualpowers of the Indian President during Emergency and the powers exercised by him indicated clearly that it was the cabinet whose decisions were being executedin his name. Internal emergency on the instance of Mrs. Indira Gandhi—the then Prime Minister further established the fact. However, the passage of 42ndAmendment set at naught all speculations about possible emergence of President's dictatorial rule in India.The American CabinetThe American Constitution did not envisage any cabinet to aid and assist the President in the discharge of his functions. However, in course of time, separatedepartments of the government were created, each of which is under the charge of a Secretary. To begin with only these departments were established. Theheads of these departments are the principal advisers of the President and have come to be collectively known as the President's Cabinet. They are appointedby every President when he enters upon his office, and are usually his ardent supporters in the political field. They are not members of the Congress,nor are they responsible to it. They are the President's personal advisers, first and foremost. However, their appointment like all other high appointments,is subject to the approval of the Senate. According to a convention the Senate does not disapprove of such appointments. They hold office till the endof the term of the President. They may be57removed earlier if the President deems fit. At present there are twelve such departments are as follows:Department Head of the Department1. State. The Secretary of State (Minister for Foreign Affairs).2. Treasury. The Secretary of the Treasury (Minister for Finance).3. Defence. The Secretary of Defence (Defence Minister).4. Justice. The Attorney General (Minister of Law).5. Post-Office. The Post Master General (Minister of Communications).6. Interior. The Secretary of the Interior (Minister responsible for the supervision of public lands, natural resources, irrigation projects and administrationof Hawaii, Alaska, Puerto Rico, etc.)7. Agriculture. The Secretary of Agriculture (Minister of Agriculture).8. Commerce. The Secretary of Commerce (Minister of Commerce).9. Labour. The Secretary of Labour (Labour Minister).10. Health Educat. (Minister of Health) ion and Welfare.11. Housing and The Secretary of Housing and Urban Urban Development Development.12. Communication. The Secretary of Communication Position of the CabinetThe President is not limited by the constitution while choosing his team of workers known as Cabinet. However, there are some practical considerations whichcannot be side tracked. He almost always selects the members of his cabinet from within the ranks of his own political party satisfying all factions andgiving consideration to experience, ability and different parts of the country. Besides, he has to see that they will serve as faithful advisers.President Washington chose his team from among men of different political affiliations. For instance, he selected Thomas Jefferson as secretary of Stateand Hamilton as secretary of the Treasury. Both belonged to the party other than of his own. They caused much58embarrassment to Washington as they were generally at odds with him. Henceforth the practice of choosing the cabinet from President's own political supporterswas adopted for ensuring harmony though occasional exceptions have been there. President Roosevelt (1940)—a Democrat appointed two Republicans, viz., Hi.Stimon and Frank Knox as members of his cabinet. Eisenhower appointed Mrs. Ovetor Culp Hobby—a Democrat as his Secretary for Health, Education and Welfare.Kennedy also included two Republicans—Douglas Dillon and Robert McNamara in his cabinet. However party necessities, geographical considerations and majorreligious groupings weigh heavily on the President's mind when he constitutes his cabinet. In U.K. the members of the cabinet are always drawn from P.M.'sown party if it holds absolute majority in the House of Commons.The American Cabinet system differs greatly from the Cabinet system prevailing in countries, like India or England. The U.S. President cannot put his responsibilityon the shoulders of his Cabinet, nor can he make it responsible for the executive actions. In other countries the Cabinet has a constitutional status andthe ministers are directly responsible to legislature for their actions. They cannot be appointed or dismissed by the executive head of State, in his owndiscretion. They enjoy the support of the majority party in the legislature. They represent a powerful section of public opinion and are responsible tothe legislature. In America, on the other hand, the Cabinet is more like the President's own Council of Advisers. It has no independent powers or prestige.According to Brogan, "the President of U.S.A. is ruler of the heads of the departments". In India, the President cannot afford to disregard the adviceof the Cabinet. But in U.S.A., it is the President's sweet will whether to accept the advice of his Cabinet or not. There is a classic example of thatfact showing how utterly the President can disregard their advice. Once an important subject was being discussed by seven members of President AbrahamLincoln's Cabinet, with Lincoln in the Chair. When it was put to vote, the seven members voted in the negative, although Lincoln himself wanted a decisionin the affirmative. He wound up the discussion by quietly saying: "The vote is 7 nayes, 1 aye. Therefore the aye has it." This shows the utter subordinationof the Cabinet to the President. Laski has correctly remarked, "The functioning of American cabinet is not a pooling of the mind in the British sense."20This cannot happen in countries like India, England and France. 59The American Secretaries are appointed by the President according to his free will and can hold office only so long as they enjoy his confidence. He candismiss them at will. For example, Wilson dropped Bryan and President Arthur a weak President got rid of Blain—a popular Republican. The Cabinet meetsordinarily once a week. It is for the President to decide what matters are to be discussed. Proceedings are informal and there are no rules of debate.No official records of proceedings are maintained. Hardly any voting is there because ultimately it is the will of the President that prevails. This isin contrast with Indian or British Cabinet where all decisions are taken by a majority vote and regular records are maintained. In other words, the AmericanCabinet does not work according to principle of cabinet system strictly.Besides, the members of President's Cabinet do not sit in the Congress. However, they may be asked to appear before the Congress. It functions as a bodyof individual advisors to the President. It does not work as a team. In the words of Brogan, "It need not or pretend to be unanimous for its will is thewill of one man and his is the power and the glory and the responsibility."21 No doubt the ultimate responsibility for the administration and for the workingof individual departments rests with the President.Further, the cabinet is not a policy-making body unlike that of British Cabinet which formulates the policy. Even in vital matters concerning particulardepartments the President plays the role of a "court of appeal from departmental decisions." The important policy decisions are taken by the Presidentin consultation with informal advisers who do not constitute his formal cabinet Wilson for instance depended more on colonel Horse than any member of hisformal cabinet. Jackson leaned heavily on his Kitchen Cabinet and Palace guards who hardly formed his Cabinet.Likewise, President Franklin D. Roosevelt placed far greater confidence in his "Brain trust"—a group of men—whom he gave more importance than his officialfamily.We can, therefore, come to the conclusion that for all intents and purposes, the Cabinet is the President's Family, and the President, as head of the family,dominates it. President Wilson is reported to have treated his Secretaries as office-boys. President Grant regarded them as second-lieutenants whose onlyduty was to carry out the orders of the President. In most cases they acted as body of advisers to the President and not a council of his colleagues. Accordingto Fenno, "He is a60policeman with sole and unlimited control over the traffic signals. Without the green light which only he can flash and for reasons largely of his own choosingthe cabinet cannot even begin to function; whatever it does, it is always subject to his choice to change the signal from green to red."22The position of the American Cabinet has been best described by Prof. Laski in the following words: "The American Cabinet is one of the least successfulof American federal institutions. It can never be more than what the President makes it, and the President is rarely likely to make it an outstanding body."23Laski correctly described the cabinet office as an interlude in a career but not a career itself.American vs. British CabinetThe similarity between the two Cabinets lies in the fact that both are the extra constitutional growth. In other words, they are the outcome of conventions.In other respects the American cabinet stands in sharp contrast to its counterpart in Great Britain. Such a sharp contrast can be attributed to two differentconstitutional systems. In Great Britain where parliamentary government prevails, the cabinet constitutes the real government It is mostly taken out ofthe Lower House. A few members of the House of Lords also are included, but all of them are responsible to the House of Commons. In the U.S.A., on theother hand, the Presidential type of government exists. As such the President or his advisers are neither drawn from the legislature nor are they responsibleto the latter. They neither initiate legislation in the Congress nor speak on the floor of the Congress. This is unlike that of the U.K. where the membersof the Cabinet sponsor legislative measures and pilot them through the Houses.Secondly, political homogeneity is a cardinal feature of the British Cabinet. The ministers are drawn from the same political party. In case of a coalitionalso a homogeneous team is constituted. The American Cabinet on the other hand, may consist of heterogenous elements drawn from different parties. Evennon-party members may be included in the Cabinet.Thirdly, the British Cabinet follows the principle of collective responsibility, i.e., all for one and one for all principle. In matters pertaining to generalpolicy, decision is always collective. The American Cabinet lacks this characteristic. The Cabinet consists of the heads of the departments who run theerrands of President and are responsible to him. If anyone is ousted by the President the rest of the members remain silent spectators to his politicalmisfortune. Oil scandals during President Hardings' time are revealing. Three members61of his Cabinet were involved in these scandals. Criminal cases were filed against two of them. One was convicted but neither the President nor the restof the members of the Cabinet took the blame upon themselves.Fourthly, the President of the U.S.A. acts as a boss over the Cabinet whereas the Prime Minister of U.K. is only a leader of the Cabinet. He is considered"first among equals" by some, "moon among the lesser stars", by Harcourt and "Sun around whom the ministers revolve like planets" by Jennings. The Presidentof U.S.A., on the other hand, is described as a huge colossus who rides roughshod over his cabinet colleagues. In the words of Laski, 'The real fact isthat an American Cabinet officer is more akin to the Permanent secretary of a government department in England than he is to a British Cabinet minister."24Lastly, in the U.S.A. membership of the Cabinet is an interlude in a career and not itself a career. Whereas in the U.K. membership of the Cabinet is richfor a successful parliamentary career. A membership of the cabinet may prove to be a stepping-stone for Prime ministership but attainment of a cabinetrank in the U.S.A. is not necessarily a step towards the presidency.Thus it is evident that American Cabinet is a Cabinet in name. It lacks the salient features of British Cabinet system. Hence it is a misnomer to call ita cabinet.America's Vice-PresidentThe Constitution provides for the office of Vice-President of the United States as well. He is elected alongwith the President in the same manner. The Presidentialelectors cast two votes—one for President and the other for the Vice-Presidential candidate. A candidate for Vice-Presidency securing absolute majorityof votes is declared elected. In case no candidate secures an absolute majority of votes, the Senate elects one out of the two candidates securing thehighest votes. The qualifications of a Vice-presidential candidate are the same as for the Presidential candidate.Two principles are kept in view in the election of the Vice-President. First is that the President and Vice-President should not belong to the same Stateand the second is that the Parties while nominating their candidates for the two offices should keep in view the fact that both the candidates belong todifferent wings of the party.Functions(a) The Vice-President of America is the ex-officio Chairman of the Senate. He has a casting vote which can be used in case of a tie.62Otherwise as Presiding Officer, he has very little of authority, because the Senate has its own rules and customs which the Presiding Officer must follow.It does not even appoint senatorial committees. His duties as chairman are formal and perfunctory.(b) The Vice-President is to succeed the President in case he dies, or resigns, or is removed by impeachment. In this case he occupies the President's officefor the remainder of the term and exercises all powers of presidential office. On eight occasions Vice-presidents succeeded to the Presidential officeon account of the death of the Presidents. Gerald Ford became President in August 1974 following Nixon's resignation.(c) Sometimes the Presidents include the Vice-Presidents in their Cabinet as matter of courtesy. For example President Roosevelt included Vice-PresidentHenry Wallace in his Cabinet. President Eisenhower sent Vice-President Nixon on a tour of the Middle East, India and Pakistan. The object of associatingthe Vice-President with the administration is to give him some training in this regard so that he may be able to handle the Presidential office if theopportunity arises.But the fact remains that the office of Vice-President is a very weak office because no significant role is assigned to it. The first Vice-President Adamswrote to his wife "My country has in its wisdom contrived for me the most insignificant office that even the invention of man contrived or his imaginationconceived." Roosevelt called it as an office unique in its functions or rather in its "lack of functions." Benjamin Frankin, condemned the Vice-Presidentas "His superfluous Highness." Wilson described the position of the Vice-President as "one of anomalous insignificance and curious uncertainty." PresidentRoosevelt once opined that he would rather be a professor of History than Vice-President. Marshall, himself Vice-President under Wilson, described himselfas "a man in a cataleptic fit who is conscious of all that goes on but has no part in it" Hence the Vice-Presidential office is described as that of impotence.Clinton described "impotence as the mark of a second class office."25 Men of outstanding talent and strength of character are not attracted to this office.It has been suggested that some of the ceremonial functions of President may at least be transferred to the Vice-President or in the alternative some substantivefunctions of President should be transferred to him. Laski held the latter view. However, there has been no concrete outcome of such suggestions.November 1996 Presidential ElectionsWilliam Jefferson (Bill) Clinton became the second democrat in sixty years after the legendary Franklin D. Roosevelt, to be elected to a second term inthe White House. Clinton won 50 per cent of the popular vote63though his Republican challenger Robert Dole could muster merely 42 per cent. Billionaire Ross Perot—the gadfly Reform Party candidate— could capture only8 per cent votes—11 per cent less than his tally in 1992. Surprisingly, President Clinton's performance in the Electoral College vote was still more impressive.This has, in fact, been one of the few elections in the recent past when a particular candidate maintained a constant lead over another as Clinton did,right from the primaries. The political prophets are surprised at such a landslide victory, as the Democrats had to eat humble pie at the hands of theRepublicans in the 1994 mid-term Congressional elections. According to an Editorial, "The 1994 Republican landslide victory in the mid-term Congressionalelections was probably one of the most humbling admonitions a sitting president had suffered since World War II."26 Hence the critics attribute Clinton'svictory to a sort of thriving on political humiliation.References1. Munro, W.B., The Government of United States, p. 144.2. Laski, The American Presidency, p. 230.3. Competition Success Review, May, 1977 issue, p. 22.4. Ibid, pp. 156-57.5. Johnson Aludius O: Government in the United States (1958 ed) p. 286.6. Haymen Sidney, The American President, p. 294.7. The President does not personally conduct certain foreign relations of the United States. Much of the work is done by the Secretary of State. Howeverultimate responsibility is that of the President.8. Ferguson and McHenry: The American System of Government, p. 313.9. DE. McHenry: The American System of Government, p. 287 (1959-60).10. Zink and others: American Government or Politics, p. 158.11. We have referred to total vetoes-regular plus pocket reproduced from Wilson American Govt. Institution and Politics, 1987 p. 34212. Munro, The Government of the United States, p. 178.13. Laslri, H., American Presidency, (1952 ed.), p. 148. 14. Munro, The Government of the United States, p. 173.15. Ibid.16. Op. at., p. 148. 17. Redford Truman: Politics and Govt. in US. (1945 ed.) p. 30.18. Ferguson and McHenry. The American System of Government, p. 287. 18A. Hindustan Times, dated Nov. 10,1994.19. Ogg: English Government and politics, p. 112.20. Laski, H.J., The American Presidency, p. 92.21. Brogan, D.W., The American Political System, p. 109.22. Fenno, R.I. The Presidents Cabinet, p. 29.23. Laski, Ibid, p. 97.24. Laski, H.J., op. cit., p. 8725. Clinton, R. The American President, p. 102.26. Hindustan Times, dated November 7,1996.645 THE CONGRESS: ITS COMPOSITION"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to bethe eyes and the voice, and to embody the wisdom and will of its constituents."—Woodrow WilsonThe first Article of the American Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States which shallconsist of a Senate and House of Representatives." Thus the Congress is the main legislative organ of the American Government and is bicameral in its composition.Why a Bicameral Legislature? Although the Congress which functioned during the Revolutionary War and thereafter the Congress of confederation consistedof only one chamber, it was not considered worthy of emulation by the framers of the constitution. They decided to have a legislative body of two chambersand there was little disagreement over the decision. The following factors influenced this decision:(a) Their familiarity: The framers of the constitution were more familiar with bicameral legislatures than with those of a unicameral legislature. Mostof the States which the delegates represented had a bicameral system. They also knew that the mother country from which they had recently separated hada bicameral parliament.(b) To guard against despotism: One of the usual arguments in favour of the bicameral system is that a second chamber checks the despotism of the lowerhouse. The framers of the constitution apprehended that a single house legislature might usurp the powers and they accordingly provided for a two-chamberedlegislature to act, in Hamilton's words, as an "impediment—against improper acts of legislation."65(c) To ensure conservatism: The preference for a bicameral system at the Philadelphia Convention was also influenced by the desire to provide stabilityin government The country had just passed through a period of strife, turmoil and uncertainty. The fathers of the constitution wanted a government whichwould be able to maintain peace in the country. All this called for the creation of a house which would serve as a check on legislatures directly chosenby the people for short terms.(d) Necessity to compromise: A strong determinant of bicameral legislature was the necessity to compromise the differences between large and small states.In the Congress which operated under the Articles of confederation each state had equal voting power irrespective of its population. The larger statesopposed continuation of equal representation of the several states without reference to population. They pointed out to the unfairness of giving to thestates which paid most of the taxes no more representation than to those which contributed little. The small states fought to retain their position ofequality. They said that states, like men, were created free and equal. One of the delegates said that there was no more reason for favouring a large statein the matter of votes than for "giving a big man more votes than a little man." The disagreement over the representation issue was so deep that for atime it seemed as if the convention would break up in disorder. But happily a solution was found out through the channel of compromise known as concretecompromise. The compromise provided that the upper house of the proposed federal Congress should be based on the equal representation of the states whilethe lower house should represent the several states in proportion to their respective populations.So, a Senate and' House of Representatives were established to form the Congress of the United States. The bicameral plan for Congress is so successfulthat little consideration is given today to seek departure from it.The House of RepresentativesApportionment of seats: The House of Representatives is the lower chamber and may be designated as the "popular branch" of Congress. The original constitutiondid not specify the size of the House. It only stipulated that "representatives shall be apportioned among the several states according to their respectivenumbers. The number of representatives shall not exceed one for every thirty thousand, that each state shall have at least one representative. The actualenumeration shall be made within three years after the first meeting of the Congress of the66United States, and within every subsequent term of ten years in such manner as they shall by law direct."1 The first House, which met in 1789, containedsixty-five members who were allocated in the constitution. Thereafter, the Congress made assignments after each census, ranging from the basis of one representativefor each 30,000 in 1792 to one for 3,45,000 in 1951. By 1911 the strength of the House had reached 435. After the 1920 census the Congress failed to carryout the constitutional mandate to reapportion members after ten years' interval. The Reapportionment Act of 1929 set the "permanent" number of House membersat 435. The admission of Alaska in 1958 and of Hawaii in 1959 brought the total of House members to 437. The membership again dropped back to 435 as aresult of reapportionment carried out in 1961.The present strength of the House remains the same. In the November 1994 elections, the Republicans routed the Democrats. Out of 435 members the RepublicanParty won 230 whereas the Democrats could capture 204, one seat was won by an Independent. In the last House the Republican had 178 members whereas theDemocrats had roped in 256.'A The Republican held the sway in November 1996.Though there is no provision in the constitution regarding election of representatives by district, however, a law imposed it in 1842, and it has prevailedever since. In 1872 a rule was added to require districts of substantially equal population. In 1901 the feature of compactness was added. The requirementof compactness, continuity were, however, dropped in 1929 and are not now in effect.There is some controversy over the number of House seats and the mode of allocating them. Several representatives have expressed discontent over the largenumber of constituents each member must serve. On the other hand, some advocate reduction of the House size to about 300. The mathematical formulae bywhich House seats are allocated are still being disputed by statisticians.QualificationsAs regards the qualifications of the members the constitution provides: "No person shall be a representative who shall not have attained the age of twenty-fiveyears, and been for seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen."To put it positively a candidate for election to the House of Representatives must be:(a) a citizen of the United States of at least seven years' standing,(b) of twenty-five years of age or more,(c) an inhabitant of the State from which he is elected.67In addition, custom decrees that a representative must reside in the district that he represents but there have been exceptions. The constitution makesthe House the judge of "the elections, returns and qualifications" of its members.The constitution also provides certain disqualifications. No person holding any office of profit under the United States shall be a member of either Houseof Congress. Secondly, no representative or Senator may be appointed to any civil office which shall have been created or the emoluments of which shallhave been increased during such time. Single member district system: In most of the States of the U.S.A. single member district system prevails. In someof the states the number of congressional districts has not been increased despite the increase in the number of members they are entitled to elect Theadditional representatives in these states are elected on a state-wide basis. They are termed as "representatives at large." Prior to 1929 single districtswere required to be equal, compact and continuous. The Act of 1929 omitted the words, "Continuous" "Equal", and "Compact." This has led to the rise ofa nasty practice—Gerrymandering.Gerrymandering: Gerrymendering, according to Dr. Munro, is an attempt "to lay out the districts in such a way that the interests of the dominant party willbe served."2 The term Gerrymander is associated with the name of the Governor of Massachussets, Elbridge Gerry, who sanctioned the case of partisan districtmaking. The principle behind this practice is to spread the majorities of a particular party in as many districts as possible and concentrate the strengthof the opposition party in as few districts as possible so that they capture less number of seats. This assures the largest number of seats for the partyin question and the fewest possible for the opponents. Thus each delimitation of districts reshapes the districts, making the electoral map look like ajigjaw puzzle. Hence it has resulted in the emergence of shoestring, saddle bell districts, starfish or lizard type districts. Commenting on the evilsof Gerrymandering, Beard rightly remarks... "as a result of Gerrymandering, the House of Representatives is seldom if ever an exact mirror of the politicalopinions expressed at the elections."Their Election: As regards the qualifications of the voters the constitution provides that "the electors in each state shall have the qualifications requisitefor electors of the most numerous branch of the state legislature." This means that all those persons who are entitled to vote for the lower chamber ofthe state legislature are also entitled to vote for the House of Representatives. In other words, each state is68given the right to determine who shall vote for congressional elections... All the citizens of the age of twenty-one had the right to vote. Since the passageof federal voting Rights Act of 1970, the right to vote in all federal elections has been given to citizens of 18 years of age. It may be noted that unlikein India there is no national suffrage in the United States. There is no Election Commission nor are there federal election officers to register the votersor provide the polling places or punch the ballots. The State and local officials do the work. The representatives in the Congress are chosen by the electionmachinery which the states provide. The elections are held throughout the country on the same day, namely, on the Tuesday following the first Monday ofNovember in every alternate year. The voting is by secret ballot. Almost all the states have made provision for absent voting, i.e., those voters who areabsent from their homes on the election day can vote by mail or, in some cases, mark their ballots before leaving home.Sessions: The House of Representatives holds one session in a year. The original constitutional provision called for the assembling of Congress on the firstMonday in December, unless Congress should choose to appoint a different day, which it never did. This meant that the first session of the new Congressdid not meet till thirteen months after the election, i.e., December next year. Meanwhile the old Congress met in December immediately following the election.This session of the old Congress was called the "lame duck" session. The newly elected members assumed office only on March 4 following their election.So they could not attend this session. Further the two sessions under the original plan were of unequal duration. The session which began in December followingthe election was a short one as the terms of members expired in March, but the other session could be continued for a whole year.The twentieth amendment added to the constitution in 1933 sought to correct the old plan. It provides: "The Congress shall assemble at least once in everyyear, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day." Thus under the new plan, the newlyelected members of the House of Representatives take office during the first week of January and immediately begin the first session which can continuefor a full year if desired. Under the legislative Reorganisation Act of 1946, the regular session adjourns on July 11 unless otherwise provided by Congress.The President has the power to call special sessions. As a rule, the President calls the special session only when there is some matter of69national urgency for the Congress to consider. The Congress can also meet in a special session on the call of the majority or minority leaders in the Congress.The Quorum: According to section 5 of Article 1, a majority of members constitutes the quorum. In other words, it means that unless 219 members are presentin the House of Representatives it cannot do its business. This requirement of the majority of those members "chosen, sworn and living" seems unduly exactingwhen compared with practice in India (10 per cent of the membership). Great Britain (40 members), Canada (20 members) or Australia (a third of the members).In order to make the quorum, some members attend the House unwillingly or under compulsion and who are not interested in the proceedings and even disturbthe proceedings. It has been suggested that the quorum should be reduced. A smaller quorum, it is said, would lead to an improvement in the debate.The Term: The House of Representatives has a short term of two years. This brevity of term does not provide the congressman sufficient time to make a broadrecord. He remains thus under perennial pressure to repair political fences for re-election. It has, therefore, often been proposed that the term of theRepresentatives be increased to four years.The Privileges: The privileges of the Representatives include immunity from arrest and freedom of speech. Section 6 of Article 1 stipulates that the representativesshall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance on the session of their House, andin going and returning from the same; and for any speech or debate. In either House, they shall not be questioned in any other place. The representativesenjoy immunity from arrest in civil cases only. In criminal cases, they are liable to arrest as other citizens. They can speak freely in the House withoutfear of criminal prosecutions or civil suits. The House has in this respect full power to determine its own rules, to discipline for excesses and to expelmembers.The representatives are also given compensation. They receive a salary of 42,500 dollars a year, all of which is subject to income tax. Each member is allowedtwenty cents per mile travelling expenses to and fro Washington once each session. He is also given an allowance for clerk hire, 12,500 dollars per year.He can make use of mail service without the payment of postage. Free medical service is made available to him.The Congressional Recognisation Act of 1946 has provided a pension system for retired members reaching the age of 62 who have70served a minimum of six years and paid into the pension fund 6 per cent of their salaries. The quantum of pension is 2-1/2 per cent of then-annual salarymultiplied by their years of service. The retirement plan in case of the Congressmen, it may be noted, is different from the plan for civil service employees.In contrast to the civil service retirement plan, the Congressmen are not required to retire when they reach the retirement age. Further, the members arefree to elect whether they will come under the plan.The SpeakerAfter a new House is elected, its first duty is to organise itself. The clerk of the last House presides. The roll call is taken to determine the presenceof quorum. Then the oath of office is administered. Thereafter the House proceeds to elect its Speaker. The Constitution does not say much about his election,powers and functions. It only provides that the members "shall choose their Speaker and other officers." Though the constitution does not require the Speakerto be a member of the House, yet only a member of the House makes the choice but in practice, it is always agreed upon by a caucus composed of membersof the majority party. If the same political party gets majority in the House, and the Speaker of the last Congress is returned, it is customary to reelecthim. If same party is not returned in majority and there is a change in the relative strength of the parties as the result of an election, the next Speakeris likely to be the man who served as floor leader of his party when it was in minority. Thus, the Speaker is always the choice of the majority party.The House merely ratifies the choice.Unlike in Great Britain, the election of the Speaker in the United States is not unanimous. In Great Britain there goes a saying, "Once a Speaker alwaysa Speaker," but in the United Slates the Speaker of the preceding House need not always be reelected and this is especially so when there is a change inthe relative strength of the parties. Moreover, in Great Britain, the Speaker is returned unopposed from his constituency as many times as he intends tobe returned. But in America his election is always contested and he is never returned unopposed from his constituency. He is elected on party lines andremains partisan throughout his term.His PowersThe speakership has always been an important office. Its power was greatly increased in the late 1880's and during the 1890's. There are two important reasonsfor such a development. Firstly, the constitution did not provide the House an official leadership. The constitution makers71took it for granted that the House would lead itself. In their desire to establish a system of checks and balances, they freed the executive and legislativebranches of the government apart leaving both Houses to work out their own plans for leadership. As the House grew in number and its legislative businessexpanded, the need for leadership developed and there developed the office of the Speaker. Secondly, the responsibilities of the House rapidly increasedwith the growth of population and with the development in industry and agriculture. The machinery of the House was slow to adjust to changing needs. ThomasB. Read, and Common (1903-10) known to history as "Czar Reed" and Czar Canon secured the adoption of rules which gave to the Speaker virtual dictatorialpowers over the House. Munro writes, "Beginning with Henry Clay, the Speaker gradually became the recognised leader of the majority party, hence of theHouse as a whole. He became the man on whom the majority depended for getting its measure, safely through the maze of rules. More and more authority wasabsorbed into its hands until he became a virtual dictator of legislation." Young also remarks "The Speaker had become the autocrat of the House withoutwhose assent virtually nothing of consequence could be done".3But in 1910 there was a revolt against the abuse of powers by the then Speaker Joseph G. Cannon. The "Cannon Revolt", as it is called, waged by Democratsand progressive Republicans against the republican Speaker Cannon, clipped the Speaker's wings by depriving him of the Rules Committee membership and in1911, he was deprived of the duty of appointing various committees. Henceforth all the appointments to the committees were to be made by the House itself.In spite of all this clipping process the Speaker of the United States exercises numerous powers which may be enumerated as follows:(a) The power to preside and recognizeThe Speaker is the presiding officer of the House of Representatives. As such he conducts the proceedings of the House and recognises the members. The rulesof the House provide that if two or more members rise, "The Speaker shall name the member who is first to speak." This in effect enabled the Speaker toexercise wide control over the course of debate in the House. He kept his eye under perfect control. He always recognised his members only.It may, however, be mentioned that the scope of the power of recognition has been gradually reduced by the rules and precedents of the House. The consentcalendar has done away with the Speaker's discretion in according or denying recognition when unanimous consent72is being asked. Similarly on Calendar Wednesday, when the name of a particular committee is reached, its chairman calls up a bill and he is recognised automaticallyfor one hour. By 1911 the speaker was deprived of this power altogether.(b) The power to maintain orderThe Speaker maintains order and decorum in the House. The rules of the House in this respect are strict The members must address the chair respectfully,must not wear hats or smoke in the House, and must obey the Speaker's rulings. If the speaker calls any member to order, he must immediately sit down.In case of disturbance or disorderly conduct the Speaker may either suspend business or instruct the Seargeant-at-aims to quiet any disorder in the House.But the Speaker cannot censure, expel or punish a member. Only the House can do that.(c) The power to interpret the RulesThe Speaker interprets the Rules of the House and applies them. On many matters the Rules are simple and explicit and he must apply them according to theirobvious meaning. He is also obliged to follow the precedents of the House, although it is within his powers to create new precedents, provided that theHouse so requires. The ruling of the Speaker, it may be noted, is not final. A majority of the House may over-rule the interpretation made by the Speaker,though it rarely exercises this prerogative.(d) Chairmanship of Rules Committee (before and after 1910)Before 1910 the Speaker used to be the Chairman of the Rules Committee. Originally this committee was a special Committee, its only function being to recommenda set of rules for the House at the beginning of each new Congress. This was not of any great consequence because the committee recommended that the rulesof the preceding congress be adopted with perhaps a few minor changes. But in course of time, the Rules Committee became a regular committee with the rightto report a new rule at any time or for any purposes. The Speaker being its Chairman was well in a position to secure at any time the adoption of a specialrule, prevent consideration of measures to which he was opposed and to advance measures, which he favoured.The growth of the Speaker's authority and his denial of the right to debate in many cases led to a revolt in 1910 against his legislative dictatorship.In that year a group of insurgent Republicans combined with the Democrats and deprived the Speaker of the power to appoint the Committee on rules and providedthat the Speaker should73henceforth be ineligible for membership of the Rules Committee. In April 1911, the Democrats who won at the polls, changed the rules of the House in sucha way that it took away the selection of standing committees and Committees' Chairman entirely out of the Speaker's hands.(e) His other powers(i) The Speaker signs all acts, addresses, joint resolutions, writs, warrants, and sub poenas as ordered by the House, (ii) Puts questions to vote, (iii)Appoints such select and conference committees as from time to time are authorised, (iv) If there is a doubt as to which committee a particular bill bereferred to it is for the Speaker to decide the matter, (v) He can order the lobbies to be cleared if he considers the same necessary, (vi) He announcesthe order of business and also declares the results of voting, (vii) As a member of the House he has the right to speak and vote as other members, althoughhe does not vote, except when the House is voting by ballot or when there is a tie. In case of tie he is apt to vote for his party.His positionAlthough the Revolt of 1910 weakened the position of the American Speaker, he, however, continues to be an important officer. According to Finer, "He stillremains in intention and practice a partyman. He is still one of the very small knots of congressional leaders who treat with the President, for passageof administrative measures. He is still consulted by, and is the Floor leader of the majority party, which considerably adds to his stature. He is stilla major factor in deciding assignments to committees and the priority of business because he is one of the most eminent, usually the most eminent of theparty, that indeed is why he was elected Speaker. Order and system in a House of 435 members there is bound to be and the power of leadership must somewherebe lodged. While until 1910 it was concentrated in the Speaker and his friends by grace, it is now concentrated in the Speaker's friends and the SpeakerLeadership has been syndicated or put into 'common' but the Speaker is still the predominant member of the syndicate." Speaker Joseph G. Cannon, afterthe Revolt of 1910, put the position of the Speaker in these words: "The Speaker does not believe, and always has believed, that this is a government throughparties and that parties can act only through majorities. The Speaker has always believed in and bowed to the majority in convention, in caucus, and inlegislative hall and today profoundly believes that to act otherwise is to disorganise parties, i.e., to prevent coherent action in any legislative74body, is to make impossible the reflection of the wishes of the people in statutes and in laws." The American concept of speakership has been well summedup by Longworth (ex speaker) "I believe it to be the duty of the Speaker standing squarely on the platform of his party, to assist in so far as he properlycan the enactment of legislation in accordance with the declared principles and policies of his party and by the same token to resist the enactment oflegislation in violation thereof."Comparison with the British SpeakerThe Speaker of the House of Representatives greatly differs from the Speaker of the British House of Commons. Briefly put the points of difference are asfollows:(i) In Great Britain the election of the Speaker is unanimous. Though he is chosen by the party, i.e., from among its members the opposition is always consultedbefore his name is proposed and if the opposition objects, his name is dropped. The purpose is to secure general respect and "no violent animosity." In1945, when labour had a majority of over 200, it did not oppose the re-election of Colonel Clifton Brown who had been the conservative nominee of 1943.In the United States, on the other hand, the election of the Speaker is a contested one. Though he is usually the nominee of the majority party, the minorityparty, however, does put its candidate and the ballot is taken. With coming in of the other party in majority, the Speaker must change.(ii) In Great Britain the Speaker is returned unopposed from his constituency as many times as he intends to be returned. But in the United States thereis no possibility of his being returned unopposed from his constituency and has to fight hard for being re-elected to the House of Representatives.(iii) The Speaker of the British House of Commons becomes a non-party man immediately after his election to that office. He does not take part in the partyconferences and does not associate himself with party resolutions. But the Speaker of the House of Representatives is actively and openly identified withhis party's organisation. As a leader of the party in the House, he is supposed to defend the party's interest.(iv) The Speaker of the British House of Commons acts impartially and judiciously. He is everybody's speaker. His rulings are fair and he follows the precedentsof the the House. On the other hand, the Speaker in the U.S.A. acts as a leader of his party and uses the power of his office to promote his party's interestand programme. His rulings are as such biased.75(v) The rulings of the Speaker in the U.S.A. are not final. A majority of the House of Representatives may overrule the interpretation placed on a ruleby the Speaker. On the other hand, the ruling of the British Speaker is considered final and there is no attempt by any group to make an appeal to theHouse to overrule the Speaker's interpretation.(vi) The Speaker in the U.S.A. takes parts in the debates and participates in the proceedings as a member of the House. He has also the right to cast hisvote. But in England the Speaker never takes any part in the debates and never votes except when there is a tie.(vii) In the United States the Speaker exercises his casting vote in the interest of his party, but in England the Speaker exercises it according to theestablished customs of the House.(viii) In Great Britain the Chairmen of the Standing Committees are appointed by the Speaker from Chairmen's panel consisting of persons nominated by theselection committee. But in America the power of the Speaker to appoint the Chairman of various Committees of the House was taken away out of his handsin April, 1911. Today the American Speaker is relatively weak as compared to his counterpart in England.(ix) Because of his partisan outlook and contested election the Speaker in the U.S.A. does not enjoy the same prestige and honour in and outside the Houseas does the British Speaker. The British Speaker refrains scrupulously from any display of personal sympathies or partisan feelings. He is not a leaderbut an umpire. Naturally, therefore, he commands respect from all sections of the House. His office is regarded as an office of great honour and prestige.All this does not hold true of the American Speaker. England did not face in its history of Speakership a revolt like the one which America faced in 1910-1911.(x) In the U.S.A. the Speaker acts as the leader of the House but in the U.K. the Prime Minister or his nominee enjoys this privilege. This reduces theauthority of the British Speaker comparatively.The SenateIn Article 1 of the American constitution, the word "Senate" precedes the term, "House of Representatives," and this is not a slip of the pen. The constitutionmakers wanted to give the Senate an important position in the whole federal system and thereby an assurance to the States that as states they would havea dominating share in the government of the nation.Apportionment of seatsThe Senate is a small body of only one hundred members. Each state76sends two representatives irrespective of population or area. The mostpopulous state, New York, has the same number of senators as Nevada. The Constitution has protected the right of the states to equal representation. Itprovides that "No State, without its consent, shall be deprived of its equal suffrage in the Senate." While providing equal representation to the Statesit was pointed out by the Federalists that "the equal vote allowed to each is at once a constitutional recognition of the portion of the sovereignty remainingin the individual state and instrument for preserving that residuary sovereignty." The provision for equality was the result of a bargain, between thelarger and the smaller states. Had it not been provided for, the federation probably would not have come into existence. In the Congress which operatedunder the Articles of the Confederation, each state had equal representation without reference to population. The small states, on the other hand, foughtto retain their position of equality arguing that their sovereignty would be endangered if representation was based on population. As a means of resolvingthis conflict, the constitutional convention provided equal representation in the Senate and made the House of Representatives elected on population basis.There has been criticism of the principle of equal representation in the Senate. Firstly, it is said that the Senators do not regard themselves the representativesof the States but consider themselves as representatives of the nation. Secondly, it is anomalical that geographical units rather than population shouldbe the basis for representation. The fifteen states of Arizona, Delaware, Idaho, Moure, Montana, Nevada, New Hampshire, New Mexico, North Dakota, Oregon,Rhode Island, South Dakota, Utah, Vermont and Wyoming have thirty seats - about one-third whereas their total population is only about seven per cent ofthe national figure. Likewise, the states of New York, Pennsylvania, Illinois, Texas and California have a third of the national population but have onlyten seats in the Senate.However, as a practical matter, changing the basis of representation in the Senate appears out of question. A Constitutional amendment would be requiredto effect which a two-third vote in both Houses of Congress and ratification by three-fourths of the states is needed. There is hardly a chance that three-fourthsof the states would ratify the amendment. The small states highly prize their prerogative of equal representation, and the number of these states is sufficientenough to prevent the adoption of any such amendment. Moreover, there are strong reasons to continue the rule of equal representation. The Senate representsareas; the House represents numbers. A majority of House77membership comes from ten States which are populous ones. Were it not for the principle of equal representation in the Senate, these ten States could controlthe legislative policy of the nation. Thus the Senate has provided a balance and counterpoise to the numerical strength of the bigger states in the Houseof Representatives.The electionThe constitution in its original form provided that Senators should be chosen by the legislatures of the several states. There were two main reasons foradopting this method. Firstly, the framers of the constitution thought that this method would bring in persons of wide practical experience who had servedfor a long period in slate legislature or in other public offices. Direct election, it was feared, might enable the demagogues to win at the polls butwould not be possible for them to befool the state legislature by oratory and promises. Secondly, it was thought that indirect election of the senatorwould guarantee the permanence of the state legislatures and provide a connecting link between the state governments and the national government.But the working of the indirect election belied the expectations of the constitution makers. Soon the country began to feel that there was too much "invisiblegovernment" in the selection of the senators, too much log rolling and too much money spending. With the growth of party system the indirect election hadfor all intents and purposes become the direct election. The actual choice of the Senator was made in the State party convention or in the party caucus.Often it was the result of secret deals. It was seen that many a time the support of some great financial interest, without any other qualification, placedmany senators in their seats. Sometimes, the legislatures failed to elect a senator. From 1890 to 1912 not less than eleven states at one time or anotherwere represented in the Senate by only one member. In 1901, the state of Delaware was not represented at all in the Senate. According to Garner, "Between1895 to 1910, a number of wealthy men found their way into the Senate through the votes of legislatures who were liberally paid for their support."As a result of these objections, the method of indirect election became unpopular and there was an agitation for a change to direct election by the people.Finally in 1912 the seventeenth amendment was submitted and passed which was proclaimed in 1913. The Amendment provided that the senators shall be electedby the people of the states directly. Thus the position today is that each state sends two members in the Senate who arc directly elected by vote of suchpersons as are entitled to vote for the lower House of the state legislature.78In the November 1994 elections the Republican Party gained 8 seats in the 100-member Senate taking its tally to 52 as against the Democratic Party's 48.In the outgoing Senate the Democratic Party's strength was 56 and the Republican Party's 44. "The magnitude of the Republican triumph was visible in theease with which Republican incumbents won re-election. Not one of the Republican Senate incumbents was defeated".4 In November 1996 the Republican wereleft with 51 seats.Thus the Republicans have seized control both of Senate and the House of Representation.Their qualificationsA senator must be:(a) at least thirty years of age;(b) a citizen of nine or more years standing;(c) an inhabitant of the State from which he is chosen.It may be noted that residential qualifications are not necessary as in England or in India.Their termThe senators are elected for a term of six years, one-third retiring after every two years. The rotation of the retiring members is so arranged that nostate has to elect both of its senators in the same year. The retiring senators are eligible for re-election. The senators have been elected over and again.It is not uncommon for a senator to run 18 to 24 years of membership. In 1962 senator Carl Hyden of Arizona was marking his thirty-fifth year in the Senate.The Senate is thus a continuous body which is never dissolved as a whole. The greater length of term has a continuing influence. The senatorship is moredesirable because a senator, by contrast with a representative, does not have to begin plans for the next election almost as soon as his term begins. Manymembers of the House want to enter the Senate, but only on rare occasions does a senator enter the House of Representatives.According to the constitution, the Senate is given the power "to be the judge of the elections, returns, and qualifications of its members." Its means thatthe elected senator cannot take his seat until the Senate has adjudged him to be properly elected and qualified. In 1926 the Senate refused to admit twoduly elected members (Frank L. Smith of Illinois, and William S. Vare of Pennsylvania) because of huge expenditure in primary elections. Since the adoptionof the 17th Amendment, vacancies in the senate caused due to the death, disqualification or resignation of a senator, may be filled by appointment by agovernor if the state law authorizes it. Virtually all state legislatures have given this authority to the governor.79SessionThe 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 notsitting. This is because the Senate has special functions which are not shared by the House of Representatives, e.g., approval of treaties, confirmationof appointments and trial of impeachments. The Senate has been called in special session a number of times without the House of Representatives being simultaneouslysummoned, but the House of Representative has never been called in special session without the Senate also being called because the House can do nothingwithout the Senate's concurrence.The Presiding OfficerThe Vice-President of the United States is the presiding officer of the Senate. But he is neither the leader of the majority party as is the Speaker ofthe House of Representatives nor is he partisan in the performance of his duties. He possesses the customary duties of a presiding officer. He does notappoint committees and has no vote, except in case of a tie. He cannot control the debate through the power of recognition. The President of the Senatemust recognize the members in order in which they rise. It may be noted that sometimes he may belong to a different political party than that which controlsthe Senate. The Senate also elects from among its own members a president pro-tempore. Though nominally elected by the majority of the caucus he, likethe Speaker of the House, is a high ranking member of the dominant party. He presides over the Senate in the absence of its president and succeeds to thePresidency of the United States upon the death or disability of the President, Vice President, Speaker of the House.PrivilegesThe senators are guaranteed the same privileges and immunities as are guaranteed to the members of the House of Representatives. They draw the same salaryand allowances as are drawn by the Representatives.The FilibusterThe Senate like the House of Representatives has formed its rules of procedure. While these rules are generally similar, the procedure in the Senate differsfrom that of the House of Representatives in one important respect. The House of Representatives has framed rules regarding the time limit on the debatesand individual speeches. As soon as the limit is reached, closure is applied. But in the Senate the debate is80unrestricted. A Senator can speak as long as he likes. The Senate has taken immense pride in its claim that it was a thoroughly democratic body, and thatdemocratic discussion could continue as long as any member of the Senate wished to speak. Brogan wrote, "If the House of Representatives is the most shackleddeliberative body in the world, the Senate is the freest."Unfortunately, however, this freedom of debate came to be abused and gave birth to what is known as "Filibuster". Occasionally Senators representing a minoritypoint of view continued to hold the floor for hours, delivering relevant and irrelevant remarks primarily intended to obstruct and frustrate the will ofthe majority. Thus, on one occasion Senator Tillman of South Carolina spent hours in reading Child Harold to his fellow Senators and threatened to continuewith other compositions of Byron. Senator Heflin of Alabama once began to read his own poems followed by dozens of telegrams and letters from his friends.Senator Huey Long of Louisiana entertained the Senate by discoursing on recipes for partridge, fried oysters, coffee, and turnips green. On one occasionLa Follette held the floor for 18 hours and 23 minutes. In 1915 six Senators spoke for more than eleven hours each against the ship purchase bill. Filibusterblocked the passage of many bills and became "the most spectacular of American legislative abuses." A filibustering Senator has no obligation to speakrelevantly. What he speaks may or may not have any relevance to the subject under debate. All that he has to do is to go on talking. In 1953 Senator WayneMorse of Oregon spoke for about 22 hours and 26 minutes. In 1957 Strom Thurmond talked for more than twenty-four hours against the civil rights legislation.The serious repercussions of filibustering had long been recognised but it was not before 1917 that an attempt was made to control it. At that time a groupof sixteen senators, denounced by President Wilson as "a little group of wilful men" began talking extraneous matters towards the end of a session andtried to prevent the senate vote on a bill which would have given President Wilson power to arm merchant ships to enable them to protect themselves againstGerman submarines. This filibustering stirred so much indignation that the Senate modified its rules and provided that debate on any legislative measurecould be closed by a two-third vote. After adoption of a closure motion, no senator can speak for more than one hour. Closure was invoked in 1919 to bringto an end the discussion on the Treaty of Versailles. Since then it has been used three times more, but threat of its use has many a time terminated filibusters.81In 1949, the Senate adopted a revised closure rule by which any matter under Senate proceeding (except change of rules) is subject to closure. (Formerly,it applied to debate on legislative measures only). But the closure was made difficult as instead of two-thirds of the members present the requirementwas revised to two-thirds of the total membership of the Senate. Thus, whereas, prior to 1949 a closure could be applied by two-thirds of the members present,after 1949, it could be applied only if two-thirds of the total membership voted in its favour. In 1959 the rule was again changed to permit the impositionof closure by two-thirds of the senators voting, rather than by two-thirds of the total membership of the Senate.In practice it is still possible to filibuster against any measure to which there is strong sectional or group opposition. Some senators have defended theuse of filibuster. It has been characterised by some legislators as an appeal "from Philip Drunk to Philip Sober." Moreover, it is claimed that filibustershave "never kept any desired or desirable legislation off the statute book." The enforcement of closure has been desired a number of times. Filibuster,it is said, has defeated only such bills which would have served little purpose, except to arouse bitter sectional resentment. Filibuster is a rare exception.The Senate usually reaches a unanimous agreement that the debate must end by a stipulated time. Only the intransigent few take resort to filibuster andthis they do rarely.References1. Article 1, Section 2, Clause 3.1 A. Hindustan Times dated November 10,1994.2. Munro, W.B., The Government of United States, p. 310.3. Young: Ogg and Ray's Introduction to American Govt., p. 279.4. N.C. Menon: 'Republicans rout Democrats in U.S. Congressional Polls' quoted in Hindustan Times dated November 10, 1994.826 THE SENATE : ITS SPECIAL POWERS"The Senate is the centre of gravity in the government, an authority to check and correct, on the one hand the democratic recklessness of House, and onthe other hand, the monarchical ambition of the President."—Lord BryceThe American Senate is the most powerful second chamber in the world. The framers of the American Constitution gave it not only coordinate authority inthe legislative, executive and financial matters but conferred upon it certain special powers which are not enjoyed by any second chamber of the world.On account of its special powers the Senate has become "the most remarkable invention of modem politics."The Senate as a Legislative body(i) Co-ordinate powersAs a legislative body, the Senate is "a co-ordinate and not a subordinate branch of the American Congress." It has got co-equal powers with the House ofRepresentatives. An ordinary bill may originate in either of the two Houses and will not become a law unless passed by both of them. No bill originatingin the House of Representatives and passed by it can become a law without the concurrence of the Senate. In case of disagreement between the two Houses,a conference committee consisting of three Representatives of each House is appointed with a view to working out a compromise. In the conference committee,the Representatives from the Senate usually have the way as they are men with stronger personalities and better parliamentary skill. Thus in the fieldof ordinary law making, the Senate stands on an equal footing with the House of Representatives.83(ii) Control over purseIn regard to money bills, the constitution does confer upon the House of Representatives the exclusive privilege of oiginating these bills, but the Senatehas been given the power to propose amendments to these bills and its approval is necessary for their enactment The Senate has made full use of its powerto amend the money bills even going to the extent of making them entirely new bills. Thus on one occasion, the Senate changed all the effective clausesof a tariff bill and returned it to the House of Representatives "as amended." On another occasion, the Senate made as many as 847 amendments in a moneybill received from the House. The power to amend the money bills has virtually led to the power of originating these bills "in fact, if not in form." Itis also said that the Senate has originated "more important legislation than the House."No upper chamber in any democratic country possess such vast legislative and financial powers.(iii) Constitution Amending PowerThe Senate and the House have co-equal powers for effecting amendment in the constitution. Proposals for amendments are to be made by a 2/3 majority ofboth the chambers. If request is made by the legislatures of 2/3 of states it is the Congress which convenes National Convention for proposing an amendmentAfter such a proposal is made it is the Congress which decides as to which of the two methods of ratification are to be used.The Special Powers of the SenateIn addition to the above legislative powers, the Senate has been given some special powers which are not enjoyed by any other second chamber in the world.The scope of these special powers is so vast that the Senate has become the most powerful second chamber of the world. As a matter of fact the fathersof American Constitution wanted to make the Senate the American counterpart of the British Privy Council and therefore they provided in the constitutionthat the president shall take the "advice and consent of the Senate in making appointments and concluding treaties with foreign countries." The specialpowers of the Senate may be described as follows:(i) Confirmation of AppointmentsClause 2 of section 2 of Article 11 reads: "...The (President) shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors,other public ministers and consuls, judges of the84Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established bylaw." Thus the President cannot make any appointment without the consent of the Senate, except such inferior appointments as have been vested by the Congressby law in the President alone. In other words, with respect to the appointments to the higher offices, the President must call the advice and consent ofthe Senate—a constitutional obligation laid on him. The confirmation of appointments by the Senate is indispensable. No appointment made by the Presidentis valid unless it is approved by the Senate.The higher officers may be of two types : (i) those who serve the nation as a whole and whose functions are not restricted to a particular state or area,e.g., the judges of the Supreme Court, the ministers and the army officers, (ii) those who serve within a particular area, e.g., district judges, post-masters,district attorneys etc. In the case of the former category, the Senate has rarely rejected the nominations made by the President. But in the case of thelatter category, the Senate has been very jealous to safeguard the rule of "Senatorial courtesy." The rule demands that the President should consult thesenior Senator of the State in which the appointment is to be made, before making the nomination. If the senior Senator does not belong to the President'sparty, he should seek the opinion of the junior Senator. If neither Senator belongs to his party, he is not bound to consult either of the Senators buthe will do well if he confers with the political leaders of the State. In fact, when some vacancy falls in a district or State, recommendations reach him.Since the President is not expected to know the qualities and capabilities of the local candidates, he must naturally rely upon local advice and find outthe reputation of candidates in their own district or state. To give him this advice there can be no other better person than the one representing thatarea in the Senate. If the President does not observe the rule of Senatorial courtesy, there is a likelihood of the nomination being rejected by the Senate.In 1938 President Roosevelt nominated a federal judge in Virginia without seeking the approval of the senior Senator from Virginia—Carter Glass. CarterGlass later asked his colleagues to reject the nomination as he had been bypassed. The Senate rejected the nomination.The Senate, when it receives the nomination, refers it to the appropriate committee. An appointment of the federal judiciary, for instance, is referredto the judiciary committee; that of an ambassador to the foreign affairs committee. The committee hears the objections, if85any and thereafter makes its report to the Senate. The Senate then votes. It is not bound to accept the recommendations of its committees, but it rarelyvotes contrary to the recommendations. Rejections of the nominations made by the President have not been numerous. It is generally conceded that the responsibilityfor making the appointments ought to rest upon the President's shoulders and that the Senate should not interfere where the nominees' record and reputationare not dubious.(ii) The Approval of TreatiesThe constitution requires the treaties concluded by the President to be approved by a two-thirds majority of the Senate. No treaty will take effect untilso approved. The President negotiates the terms of the treaty and after the terms have been concluded, it is referred to the Senate which sends it to theforeign affairs committee. The committee may listen to objections from any source and hold public hearings. After the deliberations are over, it preparesits report recommending the approval or rejection or approval with reservations. The Senate discusses the report and goes through the provisions of thetreaty. If the Senate accords approval, the treaty is put into force by an exchange of ratifications with the other country. If the Senate rejects thetreaty, it is discarded and the labour of the treaty formulations goes in vain. If the Senate amends the treaty the President, if he so desires, may reopenthe negotiations with the other signatory and try to persuade it to accept the amendments. However, the action of the Senate is final and the Presidentcan do little about it.To avoid the risk of the treaty being rejected by the Senate, the President keeps himself in touch with the leaders of the Senate, and especially with theChairman of the Foreign Affairs Committee. If he does not keep himself in touch, he runs the risk of the treaty being rejected by the Senate. The treatyof Versailles was rejected by the Senate because President Wilson did not keep in touch with the Foreign Affairs Committee. That is why President Rooseveltappointed two members of the Senate Foreign Affairs Committee as delegates to the San Francisco conference which drafted the U.N. charter.The constitution makers vested with the Senate the power to approve the treaties with a view to providing a safeguard against secret military alliancesby the President. While realizing the need of "perfect secrecy and immediate dispatch" in making of treaties, the framers of the constitution also feltthat it would not be wise to endow the President with an absolute control over foreign affairs. They thought of the Senate as a small Council, not a legislature.Since in their days there were86thirteen states, so the confirmation required the majority of seventeen Senators only. And, therefore, they took the precaution against an ambitious Presidentcommitting the country to a treaty or alliance.It may be noted that all the treaties, military or otherwise, need approval by the Senate. So in America there can be no such thing as "Secret treaty."From the viewpoint of diplomacy, America may be in a disadvantageous position because the requirement that treaties must go before the Senate has occasionallyprevented the President from making a good bargain. John Hay, Secretary of State in the McKinley administration said, "A treaty entering the Senate waslike a bull going into the arena, no one could say just how or where the final blow would fall; but one thing was certain it would never leave the bullalive." But as pointed, the Senate has rejected only a very small number of treaties. More than 100 treaties have been submitted to the Senate, out ofwhich more than 90 have been approved by it unconditionally. Hay's remarks are thus exaggerations. According to Munro, "The necessity of Senatorial concurrencehas been on the whole salutary. It has held impulsive Presidents in bounds."1 Certainly the Senate has acted as a constitutional watchdog over the President'sexercise of executive power.(iii) To appoint investigation committeesThe senate is empowered to appoint investigation committees to probe into the working of the government departments. Such committees which were originallymeant for collection of data have proved to be mortal terrors for the departments. Dr. Munro describes such probes as "fishing trips". For example, theTruman Committee during the Great War probed into waste and inefficiency. Water-Gate Committee made sensational revelations. The Foreign Affairs Committeehas been keeping the administration on its toes. In the words of C.B. Galloway, "The investigation committee has become more than a particular form ofparliamentary procedure... It has taken the place of the Cabinet in the English cabinet system, has provided an effective means of control, has informedpublic opinion and has considerably augmented the power of "Congress."(iv) The power to try impeachmentsThe constitution makes the Senate the sole court to try all impeachments. Impeachment is of English origin. It dates back to medieval times and affordedthe only means whereby an adviser of the crown could be brought to account by the House of Commons. The87Lords heard the charges and gave its decision. The constitution makers were impressed by the impeachment procedure in England and so they provided for itin the American constitution as well.Impeachment in America can be made against the President. Vice-President and all civil officers of the United States for treason, bribery or other highcrimes and misdemeanors. The term "civil officers" includes such public servants as diplomats, members of the Cabinet and judges of the federal courts.The Congressmen are not included in the term "civil officers." The impeachment is made for serious offences including grave misconduct, a dishonesty ormalfeasance in office. General incompetence or bad judgments are not valid grounds for impeachment.The impeachment charges are levelled by the House of Representatives. A member of the House makes an accusation from the floor of that body. A committeeof the House is appointed to investigate the charges. If the Committee recommends that the impeachment should be proceeded with, the House passes a resolutionand prepares the articles of impeachment These are then transmitted to the Senate which has no option but to hear these charges by sitting as a court.In the impeachment proceeding, the rules of evidence are observed. The accused is allowed to be heard in his own defence. He may summon witnesses and mayhave his own counsel. The proceedings are public, unless the Senate votes for a closed hearing.A two-thirds vote of the Senate is required for conviction. The punishment which the Senate can impose is removal from office and disqualification fromholding a civil office ever again under the national government. There is no appeal or pardon from a penalty by impeachment.There have been twelve impeachments so far and only on four times the Senate has held the accused guilty. The famous impeachments were those of PresidentAndrew Johnson, Senator Blount and William Belknap. According to Dr. Munro, "An impeachment is at best, a cumberous and costly proceeding. It is not amethod to be used if there is any simple way of securing an officer's dismissal. But in case of the President or of federal judges who hold their officesduring good behaviour, or of cabinet members whom the President may decline to dismiss, it may be the only way of forcing anyone out of the office immediately.Threats of impeachment are made from time to time when members of the cabinet or other High officials become unpopular with congressmen. But most of theseare mere political-vapouring.88Impeachment is a procedure that should never be utilized except as a last resort."2(v) Declaring of WarThough President is the Commander in Chief yet he cannot declare war himself. Both the Senate and House of Representative have coequal powers for declaringof war. However, President can create situation compelling the Congress to declare war. This again serves as a check on the powers of the President.An appraisal of legislature, financial, executive and judicial powers of the senate reflects that it is a very powerful upper chamber, in fact the mostpowerful upper chamber in the world. It puts a curb on the democratic recklessness of the House of Representatives and imposes a check on the monarchicalambitions of the American President. Hence it is an asset for the American government system.Causes of its StrengthThe special powers of the Senate and its co-ordinate status with the House of Representatives have accorded to the American Senate the most enviable positionamong the second chambers of the world. While in other countries, the power of the upper chambers has decreased, in America the Senate has gained in powerand prestige. According to Prof. Lindsay Rogers, the American Senate is "the most remarkable invention of modern times." Membership in it is greatly coveted.Prof. Laski regarded it as the sole effective federal chamber of the U.S.A. F.J. Haskin has rightly remarked, "There are things which the President andthe Senate may do without the House of Representatives and the things which the House and the Senate may do without the assent of the President, yet theHouse and the President can do comparatively little without the assent of the Senate." Truly speaking no second chamber in the world enjoys the authorityenjoyed by the Senate in the United States.The following causes speak for its strength and prestige: (i) Small membership and long tenure: The membership of the Senate is small but its tenure islonger than that of the House of Representatives. Its small membership (100) has made it a more compact and efficient body. The House of Representativesis an unwieldy body of 435 members where the debates are not of such high standard as those in the Senate. The smaller number of senators gives men oftalent a better chance to show their mettle and become known to the country at large. Further the senators are elected for a term of six years, whereasmembers of the House of Representatives are elected89only for a two-year term. The senators are not, therefore, worried about their elections after every two years. During their six-year' term, the senatorsgain more experience and develop parliamentary skill and make more impact upon the nation. They are the senior law-makers of the country. By itself, thelonger tenure in the state attracts to it the more ambitious and outstanding personalities.(ii) Membership of Senate consists of senior politicians: As just said, the longer tenure of the Senate attracts the able and outstanding politicians tothis chamber. It comprises the most talented and experienced political personalities of the country. A high proportion of its members are former Representatives,former Governors or ambassadors. The ablest members of the House of Representatives try to seek the Senate's seats. If we compare the personnel of theHouse of Representatives with that of the Senate during the past few years, it would be clear that the Senate has always consisted of more ex-governmentand more distinguished individuals. A number of senators have arisen to Presidency and Vice-Presidency. The locality rule has depleted the talent in theHouse of Representatives. The Senate on account of the better intellectual quality, legal talents and political wisdom of its members has, therefore, cometo possess greater prestige than the House of Representatives.(iii) Direct election of the Senators: The direct election of the senators has deprived the House of Representatives of its only claim to superiority thatit is a popular chamber. The Senate is now as representative or popular as the House of Representative. In fact, the Senate has a distinct advantage overthe House in this respect. A Senate represents a state as a whole while a Representative represents only a locality. The Senator can claim to be betterrepresentative of the state than a Representative. Moreover, this makes the outlook of a senator broader than that of the Representative who thinks ingetting some benefit say, a post office or a school, for his locality. The senator thinks in wider terms. He is worried more about the interests of hisState than of his locality. In other countries like England, Canada or India, the second chambers enjoy less prestige and powers because they are not directlyelected chambers. But in America, the Senate like the House of Representatives is elected directly by the people. Hence it is equally a popular chamber,enjoys a prestigious position and does not give precedence to the lower House on this account.(iv) Greater freedom of speech: The senators enjoy greater freedom of speech than the members of the House of Representatives. Combined90with the fact that the Senate contains the more talented and experienced political personalities of the country, its debates are of a high order. The rulesof debate encourage independence and provide full opportunity to the minorities to express their points of view. Consequently, the Senator "gives a vividreality to political democracy in the United States which no other institution as fully or so gladly supplies."3 Though freedom of debate is often abused,giving rise to filibuster, yet it also makes the Senate the most effective forum in the United States "next only to the President himself." The debatesof the House of Representatives get little publicity in the press but what is said in the Senate always hits the front page lines. The Senate, withoutdoubt, is the most successful deliberative assembly in the world wherein the discussion is lively and dynamic.(v) Solidarity of the Senate: The Senate is the one legislative organ in the world whose members have solidarity and unity irrespective of party affiliations.Each Senator jealously guards the rights and privileges of others and whenever an onslaught has been made to break its solidarity, it has always stoodtogether, as for instance, in 1938 President Roosevelt tried to bypass the rule of senatorial courtesy "but it stood solidly against" him. This sense ofsolidarity enables them to ward off all encroachments from outside. "The Senate," remark Swarthout and Bartley, "is alert against any possible threat ofpressure by either of these two (the President and the House of Representatives) sources, and it is quick to resent any action it considers to be a dangerto its prerogative or its traditions."(vi) Absence of Parliamentary Government: The United States has a presidential form of Government. In a country with a parliamentary government, the executiveis responsible to the lower house which makes it more powerful than the upper house. But in America, the executive is not responsible to the House of Representativesand this fact has denied the opportunity to the House to claim superiority over the Senate. In England and India the lower house enjoys pre-eminence overthe upper house because the former can outvote the government from office. In the United States it is the Senate, the upper chamber, which exercises controlover the executive in the form of approval of appointments and treaties and not the House of Representatives. This accords it a position of precedenceover the House of Representatives which has not been vested with the power of controlling the executive.(vii) Its equal legislative and financial powers: The second chambers in the other countries are given less share in law-making and91financial matters which makes them inferior to the lower house. For instance, in Great Britain, the Commons can override the veto of the Lords by passinga bill twice in two consecutive sessions. In India, the Lok Sabha has an advantage over the Rajya Sabha in a joint session on account of its larger membership.In the United States in case of disagreement between the Senate and the House of Representatives, a joint conference committee consisting of equal representativesfrom both the houses is appointed and as referred to above, in the joint committee, the senators because of their wide legislative experience and longertenure have greater influence.As regards the financial matters the only eminence which the House enjoys over the Senate is that a money bill can originate only in the House of Representatives.But the Senate can make amendments to the extent of making it a new bill. Thus though the Senate cannot originate a money bill according to the letterof the constitution, yet in fact it can do so by drastically amending the bill coming from the House. According to Murrey, "the Senate has founded a wayof doing what the constitution did not intend to do it." Thus the power of the House to originate a money bill has little significance in practice. Itis obvious, therefore, that the Senate does not have a secondary position in respect to the legislative and financial matters. In fact, the Senate hascome to have a dominant voice in legislation.(viii) Its special powers: But these are the special powers exclusively conferred on the Senate which have added to its strength and prestige. No otherchamber in the world has been given such power. Appointments proposed by the President are subject to its approval. No treaty can become valid unless itis confirmed by the Senate. Through its power to approve the appointments recommended by the President, the Senate plays a vital role in the administration.The President always keeps the Senate informed of the important developments in administration. No other second chamber, not even the elected one suchas the Swiss Council of States or the Australian Senate, has been given the power to approve the appointments of officers. Through its power to ratifythe treaties, the Senate has come to exercise great influence on the foreign policy of the United States. President Wilson had again and again insistedthat America should join the League of Nations, but the Senate refused and the U.S.A. could not become a member of the League. The President in order tosave himself from the humiliation of rejection keeps the Senate in touch with the treaty parleys. 'The central fact," remarks Laski "is that the Senateof the United States is the one92constitutional expedient that provides the American public with the material upon which it can make an effective judgment on the presidential policy.4 Itsspecial powers have made the Senate unmistakably above all the other second chambers in the world.(ix) As a court of trial: The Senate possesses the power of impeaching the President, Vice-President and all other important civil and political officersfor treason, bribery, misdemeanor and other crimes. The House of Representatives frames the charges by two-thirds majority and the Senate can convict theperson by two-thirds majority. This convention means removal of the officer. The method is not frequently used. Munro calls most of these impeachmentsas political vapourings.Its legal powers and its actual role have made it the most powerful upper chamber in the world. In the words of Bryce, the Senate is the "centre of gravityin the government, an authority to check and correct, on the one hand, the democratic recklessness of the House, and, on the other the monarchical ambitionof the President." F.J. Haskin rightly said, "There are things which the President and the Senate can do without the assent of the House of Representatives,and things which the Senate and the House can do without the assent of the President, yet the President and the House can do comparatively little withoutthe assent of the Senate." The Senators are men of wide reputation who have held important positions in the country. That is why Charles Beard remarkedthat "It is from senators rather than representatives that the public may expect staunch defence of constitutional methods and powerful opposition to violent,high-handed and bigoted opinions and actions." In the words of Laski, the Senate can be called "The master of the House of Representatives." Lindsey Rogersrightly describes it as "the most remarkable invention of modern politics." It enjoys ascendancy over the House of Representatives on account of its compactness,long tenure of its members, its multifarious powers and unlimited freedom of speech. Direct elections of its members has further added to the prestigeand popularity of the senators. Ogg and Ray have very well summed up the senatorial ascendancy over the House of Representatives in the words." ...Itsmembers are on the average somewhat older, have wider knowledge of public affairs and in particular have more legislative experience because of longerterms, more numerous re-elections... Their small number gives men of talent a better chance to show their mettle. With rare exceptions senators enjoy farmore patronage than do representatives and the senate's special powers of confirming93appointments and assenting to the ratification of treaties, place in its hands weapon which can be employed formidably...."The Senate Compared with the House of LordsThe Senate differs sharply from the House of Lords in respect of its composition and powers. According to Stanard Harold, 'The United States Senate is thestrongest and the House of Lords the weakest of all upper Houses in the world today."5 The following points of comparison may be noted:(i) The membership of the Senate is quite small, i.e., one hundred members but the House of Lords is an unwieldy House with over 1100 members.(ii) The House of Lords is mostly a hereditary chamber. About ninety per cent of the Lords occupy their seats only because they are the descendants of peers.The Senate is an entirely elected chamber. There is no hereditary or nominated element in the Senate. The citizens of the states directly elect the membersof the Senate.(iii) The House of Lords is a permanent chamber. The Lords are members for life. They do not retire. But the senators occupy seats for a period of six years- one-third retiring after every two years. However in actual practice some of the prominent senators have enjoyed much longer tenure.(iv) The Senate is a living and dynamic chamber wherein the standard of debates is of a high level. The senators take active interest in the proceedingsand are politically wide awake. The House of Lords, on the other hand, is a sleeping beauty like that of Canadian senate. The Lords seldom attend its meetingand do not have much stake in politics. A majority of them are members by chance and most of them keep absent. Its quorum is just three. The House of Lords,as Winston Churchill described it, is an "unrepresentative, irresponsible and absentee" chamber. The Senate is a fully representative and responsible chamber.(v) In powers also the House of Lords is far inferior to the Senate. As a legislative body the House of Lords has been reduced to a position of virtualimpotence. The Parliamentary Act of 1911 and latter the Act of 1949 have clipped the wings of the Lords. Under these Acts the House of Commons was giventhe power to over-ride the veto of the House of Lords. The Act of 1911 provided that a money bill passed by the House of Commons could be sent to the Houseof Lords one month before the end of a session and it could be submitted for royal assent at the end of one month and it became law on receiving the King'sassent94whether or not, in the meanwhile, it was passed by the House of Lords. In regard to non-money bills it was provided that if a non-money bill was passedin three successive sessions during a period of at least two years and was rejected on each occasion by the House of Lords, it could, on its rejectionby the Lords for the third time, be presented for royal assent and would become law on receiving such assent notwithstanding that the House of Lords hadnot consented to it. The Act of 1949 had reduced the requirement of three sessions to two and the period of two years to one. These two Acts have madethe House of Lords a mere secondary chamber without any influence on legislation. On the other hand, the Senate is so powerful that it has overshadowedthe House of Representatives. In matters of legislation the Senate has co-equal and coordinate authority with the House of Representatives. Any bill mayoriginate in any House and will not become an Act unless passed by both the Houses. Money bill can originate only in the House of Representatives but theSenate has the power of amending or rejecting them and the House of Representatives cannot write off these amendments to carry over its veto. In a jointcommittee, as we have seen, it is the will of the Senate rather than of the House of Representatives that is likely to prevail. Further, the Senate enjoysspecial executive powers—the powers to approve the appointments and ratify the treaties which are not enjoyed by the House of Lords. In its relation tothe House of Commons, the House of Lords is distinctively very inferior and holds a secondary position but the Senate, on the contrary, has overshadowedthe House of Representatives and holds a primary position. There is little exaggeration in the observation that the House of Lords is the weakest secondchamber while the Senate is the strongest second chamber in the world.The Weaknesses of the SenateThere are some defects in the organisation and working of the Senate which may be pointed out. Firstly, the equality of representation irrespective of populationand size is said to be undemocratic. Lindsay has estimated that more than half the senators are returned by less than one-fifth of the American people.This is an anomaly in a democracy that states should get representation irrespective of their population. Secondly, the change from indirect to directsystem of election in 1913 has not changed the colour of the Senate's composition. Money, power and corruption continue to play a significant part in theelection of the senators. The Senate has become a multimillionaire's club. The senators from Delaware are, more often than not, the nominees of the95great Du Pont Corporation. Those from Montana represent the powerful copper interests of that state rather than its people. Laski points out that thereare always some senators "whose election is difficult to explain and still more difficult to justify." He writes, "There have been some senators from Pennsylvania,who ought to have been in jails instead of in Washington."6 From the geographical point of view, the agricultural bloc wields a power out of all proportionto the numerical strength it represents. Thirdly, the freedom of debate in the Senate has given rise to filibusters which hold up important legislation.Occasionally, filibuster has made the Senate appear ridiculous. Log rolling has become a conspicuous feature of the Senate. Fourthly, "senatorial courtesy"is only another name for favouritism and nepotism. Fifthly, senatorial investigations have encouraged Macarthyism and have engendered an atmosphere ofintellectual terror making freedom of thought and expression a mockery. Lastly, the rule of two-thirds majority for approval of treaties has been criticisedas a great impediment in the way of the President and it has been suggested that instead of two-thirds, a simple majority should be required for approvalof treaties.References1. Munro, W.B., The Government of the United Slates, p. 295.2. Op. cit, pp. 300-301.3. Laski, H.J., The American Democracy, p. 92.4. Laski, H J., op. cit., p. 90.5. Stanard, Harold, The Two Constitutions, p. 112.6. Laski, H.J., The American Democracy, p. 85.967 THE POWERS OF CONGRESS"Congress is the American people, not all the people, it is true but the people assembled by proxy. It is expected not only to act for the people but todeliberate for them and decide whether or not to act at all. Its obligation to deliberate for the people cannot legitimately be delegated to any otheragent."—CB. SwisherThe Senate and the House of Representatives, as said in the earlier chapters, together constitute the Congress. It is the national legislature and exerciseslegislative as well as non-legislative powers. But unlike the British Parliament, its powers are defined and limited. It is not a sovereign body.We may consider the powers of the Congress under two heads:(i) Legislative, and (ii) Non-legislative.Legislative PowersThe Congress is primarily a legislative body. Its legislative powers may be grouped into three groups.(a) Delegated PowersThe delegated legislative powers are the ones which have been specifically enumerated in the constitution. Thus, according to Section 8 of Article, theCongress has the power:(i) to lay and collect taxes, duties, imports and excises, to pay the debts and provide for the common defence and general welfare of the U.S.;(ii) to borrow money on the credits of the U.S.; (iii) to regulate commerce with foreign nations and among the several states;(iv) to coin money and fix the standard of weights and measures;(v) to provide for the punishment of counterfeiting the securities and currency coin of the U.S.;97(vi) to establish post offices and post wards;(vii) to establish a uniform rule of naturalisation and uniform laws on bankruptcy throughout the United States; (viii) to promote the progress of science and useful arts; (ix) to constitute tribunals inferior to the Supreme Courts; (x) to defend and punish the felonies and piracies committed on the high seas, and offences, against the law of nations; (xi) to declare war, grant letters of marque and reprisal and make rules concerning capture on land and water; (xii) to provide and maintain the navy; (xiii) to make rules for the government and regulation of the land and naval forces;(xiv) to raise and support armies; (xv) to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; (xvi) to provide for organizing, arming and disciplining the militia; (xvii) to exercise exclusive legislation in all cases over such districts as may become the seat of the government of the United States; and(xviii) to make all laws which may be found necessary and proper for carrying into execution the foregoing powers. The above powers are customarily referred to as "the eighteen powers of the Congress." The states retain rest of the powers not enumerated above.(b) Implied PowersBesides the above powers which have been specifically delegated to the Congress, it also exercises certain powers which are called the implied powers. Thedoctrine of implied powers was given judicial recognition in 1819 in the historic case of Me Culloch vs. Maryland. Chief Justice Marshall said, "The soundconstruction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are tobe carried into execution, which will enable that body to perform the high duties assigned to it in a manner most beneficial to the people." A narrow construction,he declared, would hamper the operations of government and make it incapable of performing the functions that it was established to perform. The ChiefJustice said, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adoptedto that end, and which are not prohibited but consistent with the letter and the spirit of the constitution, are constitutional."98The court in its judgment relied upon clause 18, Section 8 of Article 1 of the constitution which says that the Congress shall have power "to make all lawswhich shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the governmentof the United States, or in any department or officer thereof." Thus the Congress possesses all the powers by implication which are necessary and properfor carrying out the powers expressly conferred by it upon the constitution. A number of powers which the Congress enjoys today have their bases in "impliedpowers". The right to provide for the establishment and supervision of national banks, federal reserve banks and various other banking and other creditinstitutions, the right to regulate the food and fuel consumptions, the right to take over the industries in times of national emergency, the right toregulate the stock exchanges or the issue of securities are the implied powers of the Congress because the constitution nowhere makes a mention of thesepowers. Thus the Congress has widened the scope of its legislative powers through the doctrine of implied powers. However, the Congress is not the judgeof its own implied powers. The Supreme Court is the final judge in such matters and, on several occasions, it has denied Congressional claims to impliedauthority.(c) Concurrent powersThe concurrent powers are those which may be exercised both by Congress and state legislatures. The right to enact laws relating to bankruptcy, the rightto fix standard of weights and measures, the right to borrow money, the right to charter banks, the right to promote agriculture and the right to fostereducation are the concurrent powers. Whenever a conflict arises in matters of concurrent power, the state laws give way to the federal laws.The Congress can make laws on all those subjects which (a) have been clearly assigned to it, and (b) may be reasonably implied from the express powers.It cannot make laws on those matters which have not been granted or which have been prohibited to it. Thus the Congress cannot levy taxes or duties onarticles exported from any state, nor can it abridge guarantees contained in the Bill of rights, change state boundaries without the assent of the statesinvolved or grant titles of nobility.Does the Congress of the United States exercise some emergency powers?The Supreme Court has declared that "emergency does not create power. Emergency does not increase granted powers or diminish the99restrictions imposed on powers granted or reserved." Thus, in an emergency the Congress cannot claim powers additional to the ones conferred by the constitution.Extraordinary conditions do not create or enlarge constitutional powers. In an emergency, the Congress may make vigorous use of powers already exercisedbut it cannot go behind the powers expressly granted to it or reasonably implied there from.Non-legislative PowersThe Congress is popularly known to be a law-making body, but the making of laws is not its only task. It performs varied functions which, strictly speaking,are not legislative. The non-legislative functions of the Congress may be classified as follows:(a) ExecutiveThere is a presidential form of government in the United States and so the Congress does not control the executive the same way the British Parliament controlsthe national executive. The Congress cannot pass a motion of no-confidence against the cabinet, "nor can it move 'censure' or 'adjournment' motions. Thesecretaries (ministers) do not take part in its proceedings and are not present in the Congress to reply to its questions. Therefore, control of the Congressover the executive is very limited. The Congress controls the executive in two ways: (i) by confirming the appointments made by the President, and (ii)by ratifying the treaties negotiated by him. As said, earlier all the major appointments made by the President must be approved by the Senate by a majorityof the members present and voting. Besides, treaties with foreign states cannot be effective until they are confirmed by a two-thirds vote of the Senate.Moreover, the Congress alone can declare war. The Congress has an intimate interest in the foreign relations of the United States. The President reviewsthe international situation in his message. The Congress permits the expenditure on international obligations. It may be said that the Congress had forcedthe President to relax his war policy in Vietnam.(b) AdministrativeThe Congress is also an administrative body. It controls and directs the whole work of administering and enforcing its own laws. The Congress provides themoney without which the laws cannot be executed or justice administered. It fixes the salaries and functions of the various officials of the Federal Services.It can call for reports and information from executive departments and agencies. The Legislative Reorganisation Act of 1946 requires the congressionalstanding100committees to exercise continuous vigilance over the execution of all laws falling within their jurisdiction. The Controller General is responsible to theCongress rather than the President.(c) Investigative"The proper office of a representative assembly," said J.S. Mills, "is to watch and control the government" and to make sure that the executive branch iscarrying out the purpose of legislative polling agreed upon. In a parliamentary government, the legislature makes use of money levies to exercise suchcontrol. It can put questions, move adjournment and censure motions, bring in no confidence motions. In a presidential form of government there are nosuch means available to the legislature." Legislative investigations are, therefore, a major technique for holding the executive and administrative agenciesaccountable. The Congress employs regular or special committees to hold investigations into the working of the executive departments and administrativeagencies. It can look into any subject matter whenever it deems necessary in order to carry out its duties. The Senate has been more active than the Houseof Representatives in the matter of conducting investigations and one of its typical investigations was the one conducted jointly in 1951 by its foreignrelations and armed services committee into the dismissal of General Mac Arthur by President Truman.The investigatory powers of Congress have been criticised by many Americans. Firstly, it is said that the constitution does not provide for such investigations.Secondly, sometimes, the investigations are politically motivated. Thirdly, the investigating committees often overreach themselves. Fourthly, the rulesof due process of law are not binding on the committee since a congressional investigation is not a judicial proceeding. While there may be some truthin what has been said,, nevertheless the truth remains that "corruption and bribery have often been revealed only through Congressional investigations.The inadequacy of old laws and the necessity for new ones have been determined only by investigations. The abuse of offices, inefficiency, misapplicationof powers have all been curtailed not only by investigation but by the constant possibility of an investigation." However, it is desirable that Congressionalinvestigations should be conducted with restraint and dignity; otherwise, they can undermine the morale of public servants, invade the rights of privatecitizens and violate not only the separation of powers but due process of law.101(d) ElectoralAfter every four years, both the Houses of Congress meet in a joint session to count the electoral votes cast for the President and Vice-President. If nocandidate gets a majority of the electoral votes for the President, the House of Representatives elects the President from among the first three candidates.At such elections the representatives from each state vote as a unit. When no candidate gets a majority for the office of the Vice-President, the Senateelects one out of the two candidates securing the highest votes. Only the Vice-President had been so far elected in this manner in 1837. The Congress hasalso the power to legislate on "the time, place and manner of holding elections for Senators and Representatives." It also prescribes the qualificationsof members. In 1926, the Senate refused a seat to S. Vare because he spent too much money on the election campaign.(e) ConstituentThe Congress also plays an important role in the amendment of the constitution. A proposal for amendment of the constitution may be made either by a two-thirdsvote of Congress or by a national convention called at the request of the legislatures of two-thirds of the states. Such a proposal will become a partof the constitution after it has been ratified by legislatures of three-fourths of the states or by conventions in three-fourth of the states. The Congresswill determine which of the two methods of ratification will be employed. The Congress besides determining the method of ratification may also specifya time limit for ratification. Whatever method is adopted, it is clear that the Congress takes an important part in the process of amendment. It may notbe out of place to point out that the amendments to the American constitution have so far been initiated only by the Congress. No national convention hasbeen called for proposing amendments.(f) JudicialThe House of Representatives brings a charge of impeachment against the President, Vice-President and other federal officers and the Senate sitting as acourt hears the charge. Each chamber exercises disciplinary powers over its own members and can expel a member by a two-thirds vote.(g) FinancialThe Annual budget of the United States is passed by the Congress. It can make any changes on the revenue or expenditure side of budget. It has102unrestricted powers regarding appropriation of money. It can lend money to foreign states, grant subsidies to private enterprises and give grants-in-aidto the states. In fact, the Congress uses its financial powers to control the executive.ConclusionSurveying the above powers of the Congress, one might say that it is wrong to call the Congress a law-making body. If law-making had been its only function,the Congress would do the job in a few weeks every year. But it sits for a number of weeks because it has to hear the reports of the investigating committees,pass the national budget, create offices and prescribe their duties and salaries, and do a host of other things. It is the basis on which the Americansystem of national government rests. The constitution makers conceived of it as the most important branch of the government and the first Article of theconstitution was devoted to describing its composition and powers. They conferred upon it vast defined and undefined powers. According to Tourtellot, "Becauseof its supervisory and appropriation powers, the Congress had stronger ultimate administrative powers than the Presidency, and because of its impeachmentpowers - it is a higher court of justice than any, including the Supreme Court, in the land." Steadily and gradually, the powers of the Congress have beengrowing. Two of the eighteen powers relate to levying of taxes, spending public money and for borrowing on federal credit The third brings in foreign andinterstate commerce. "These three items alone have been expanded so amazingly that despite the six lines of type which they require in an ordinary printedcopy of the constitution, they now constitute the basis for hundreds and even thousands of far-reaching statutes which Congress has from time to time enacted.The commerce clause has been invoked during the past decade to justify the regulation of business practices, the protection of organised labour, the regimentationof the coal mining industry and the stabilization of the stock and grain markets."' The remaining gap has been filled in by the "general Welfare" clauseand the crowning extent was made under the "common defence" clause. In short, the Congress has taken more powers in its hands than the constitution makersmight have hardly intended to confer. This may be partly because the problems which once used to be local have become national and partly because the countryhas grown more national minded. The states are no longer dreadful of a strong federal government which they once were at the Philadelphia convention.103It may, however, be noted that on account of its parochial character the Congress has not been able to exercise its powers as effectively as the Presidentand the Supreme Court have been exercising their powers. According to Tourtellot, "The Congress is not in any real sense, a national representative bodyat all, it is the sum of regional, i.e., state delegations."2 The senators and the representatives are peculiarly sensitive to the interests of the areasor groups they represent and to which they must return to seek re-election. The influence of pressure groups is very wide on the Congressmen. Lobbyingof the pressure groups makes Congressman parochial rather than national in outlook. The Congressman has become "a conglomeration of local views and attitudes."Potter remarks, "In politics the whole is more than the sum of its parts, but the American Congress is made up only of the parts. No Congressional organrepresents the nation as a whole." That is why we hear of "silver" Senators and "cotton" Congressmen, and "pork-barrel" and "log rolling" legislation.Congress and the ExecutiveThe American system of government is based on the theory of separation of powers. The Congress and the President are independent of each other. The Presidenthas no power to dissolve the House of Representatives. Likewise the House of Representatives has no power to remove the President. The President and hiscolleagues are not responsible to the Congress. The President can only be removed by way of impeachment. No amount of criticism by the Congress can turnthe President out of the office. The Ministers or Secretaries as they are called do not have their seats in the Congress. Both work independently of eachother.Executive Control of the CongressThe effects of a system in which the executive and the legislative work are divorced from each other can never be wholesome. Both are parts of the samegovernmental machinery and none can function efficiently without the cooperation of the other. The constitution makers knew this fact and so they did notstretch the separation of powers too far and introduced devices to harmonize the differences between the executive and the legislature. The President isvested with positive as well as negative means of influencing the Congress.The constitution provides that the President "shall from time to time give to the Congress information of the state of the union and recommend to theirconsideration such measures as he shall judge necessary and expedient." The outcome of this power of the President to104send messages and recommend legislative proposals is self evident. Nearly three-fourths of the legislative work which comes before the congress, is submittedby the President. Though the congress is not bound even to consider the legislation recommended by the President, yet it cannot afford to treat his recommendationslightly.President's VetoEqually important is the President's power to veto the bills passed by the congress. Though he does not possess what is called "absolute veto" yet a billsent back by the President requires 2/3 majority for its clearance which is not easy. Hence veto has almost become absolute. Besides, the "pocket veto"which he exercises is no less effective. The Presidents have used their veto power as a means of influencing legislation. They can threaten to use theveto over bills desired by the congress if it does not pass the bills recommended by them. The constitution makers also probably intended the "veto" tobe used as a means of influencing legislation, and as a sort of weapon to be used in its own defence by the executive. They considered "President's vetoas a legislative rather than an executive function," for it was inserted in that part of the constitution which relates to the organisation and powersof congress.Other MeansApart from messages and veto power, there are several other ways through which the President can influence legislation. His patronage is an effective meansof securing the support of senators and Representatives for measures recommended by him. On the commencement of his term, the President has to make numerousappointments and by obliging the congressmen he can win their support. Further the President is the head of the bureaucracy. The Congressmen need the favourand guidance of administrative experts who work under the supreme direction of the President. A more important source of influence is his leadership ofthe party. As a party leader, he exercises ample control over the members of his party in the congress. He can appeal to the party loyalty of members ofthe congress. Then as an elected leader of the nation, the President enjoys a position of eminence. He can appeal to the Caesar. In other words, he can,through the press, the platform, the radio and television, mobilise public opinion against a recalcitrant Congress in case it puts unnecessary obstructionsin his way. Thus, while in theory, the Congress is independent of executive control, in reality, the executive exercises great control over the congress.105Congress Control of the ExecutiveThe Congress exercises control over the executive in numerous ways. The executive can do little or nothing without spending money. The Congress passes thebudget every year and authorizes appropriations. It can curtail any administrative activity by reducing the appropriations.Through Executive PowersThe Congress may create new offices and define their duties. It can also impose new duties upon the President through executive powers or upon any of hissubordinates. It can even provide that duties which it imposes upon these subordinates shall be performed in a designated way. Further, the Congress maycall for information from any administrative department. It can also appoint committees to investigate matters in any branch of administration. The investigatingcommittees have many a time brought about the removal of the guilty officers.The appointments made by the President are subject to the approval of the Senate. The treaties negotiated by the President are not legal until ratifiedby the Senate. The President keeps the Senate informed of his foreign policy. The power to approve the appointments gives a great patronage to the Senateand enables it to exercise influence over the Presidential nominations to various offices.It is thus clear that despite separation of powers, the President and the Congress have been equipped with powers to influence each other. The Congressnever loses sight of the fact that, the modern national state has become a social service corporation through the evolution of public welfare servicesand that the core of this development has everywhere centred in the executive. But at the same time to avoid the possibility of the executive getting autocraticthe Congress exercises restraints over it Referring to President and Congress relationship Laski has remarked that the Congress "may respect him, it maynever fear him, it gives him a general, if spasmodic support. But it is always looking for occasions to differ from him, and it never feels as really comfortable,as when it has found such an occasion for difference. In doing so it has the sense that it is affirming its own essence. It is more truly itself becauseit is exalting its own prestige."3However, the relations between the Congress and the executive have not always been happy. At times relations have become so bad that they have condemnedeach other. President Johnson was impeached by the Congress. The relations between President Truman and the Congress ultimately degenerated into mutualdefamation. The foreign policy of President Wilson was wrecked by the Senate. The United106States could not become a member of the League of Nations. The Congress has the feeling that its enactments are used for purposes which it would not willinglysanction, and so it is of the opinion that it ought to supervise the agencies carrying out the functions which it has prescribed. On the other hand, theexecutive holds that the Congressional function stands completed when statutes are enacted. The administration and law enforcement belong exclusively tothe executive. Thus the executive is constantly trying to divorce the administration from congressional control, whereas the Congress through control overappropriations, through investigations and the methods suggested in the preceding pages, attempts to keep its control over the executive. Hence a conflict.The American Congressmen accept the leadership of the President only when they feel that something must be done to meet the emergency. Thus during the periodof economic depression of the early 1930's and the Russian threat of the late 1940's, they delegated sweeping emergency powers to the President. But whenthere is no crisis, they insist that the President should justify his powers and proposals. Despite the possibility of Congressional executive conflictinherent in the American political system, America has been able to meet the problems of World War II and its aftermath successfully. But there is notalways a crisis, nor is it good to create always a sense of crisis in Congress and the country when the President is eager to have his way. What is requiredis a more satisfactory continuous relationship between the President and the Congress so that the President may exercise a steady guidance in the congressional"consensus."The critics of the present relations between the two branches of the government vary tremendously in their answers to the question, "On what lines shouldthe relations between the President and the Congress be reconstructed?" Some of them would like to subject the executive to more effective legislativecontrol. Others would create mechanisms intended to bring Congress and the executive together on the top of the governmental structure in the hope of housingthe dynamics of both. Most discussions include proposals for establishing in some form a cabinet system.The essence of a cabinet system is that the cabinet is formed from among the leaders of the majority party in the legislature and exercises governing poweruntil the legislature demonstrates lot of confidence in it. Some discussion on the merits of the cabinet system took place before the joint committee whichwas making plans for the legislative107Organisation Act of 1946. Walton Hamilton of the Yale law school said, "The clash of executive and Congress is greatly overdone; it presents no more thana minor problem. The character of the English system is misused, the distinctive conditions of American society, which it would never fit, are overlooked;the activities which make up our pattern of government are not adequately taken into account. The life of any political system is function; imitation especiallywhere situations are unlike, can never spell function." Accordingly, Hamilton expressed the view that the British Cabinet system would not suit the Americanconstitution. He continued, "A small and compact nation, a clear cut social structure, a high regard for the properties, a general agreement on articlesof faith, a zone of action narrow enough to blunt the edge of difference - such are the conditions of its success. But the conditions which make for successdo not exist here. Our population is made up of many elements, we have no class structure, no nucleus of first families, no common body of opinion whichconfines differences to non-essentials, no tendency for all members of Congress to think as one in the face of a crisis. There is no such, well orderedsociety here such as England possesses, to which the system of cabinet government can be fitted."This feeling that the British cabinet system would not suit the American conditions is widely held and it is now believed that the Presidential system "withall its operational groaning and creaking has afforded a different, but equally practical and probably better adopted solution to the problem of governmentalpower in the United States."Should there be a question hour? Some political scientists have argued for the use of the question hour in the United States. This, they say, would bringthe ministers and the Congressmen together, thereby removing the great element of the indifference that now exists. But some thinkers regret introductionof question hour as a sheer waste of time without serving any purpose. The question hour as it operates in the House of Commons or Lok Sabha does not permitthe detailed questioning which is often necessary to bring out significant facts. It is just a sheer exciting battle of wits. Walton Hamilton said in histestimony before the Joint Committee referred to above, "We have a device here which is vastly superior to that and that is the appearance of the administrativeofficer before the Congressional committee where the matter is a great deal more informal and the questioning is a great deal more scorching than it couldever be before the House."Some more proposals have been put to improve the legislative-executive relations in the United States. These are the following:108(i) The members of the cabinet are to be permitted to sit in the congress and participate in the debates without a vote, (ii) The cabinet be permitted to initiate legislation, (iii) The candidates for membership in congress be permitted to run for election from any constituency without regard to their residence, (iv) A joint legislative executive cabinet of nine congressional leaders and nine executive officers to meet regularly with the President be composed, (v) A majority policy committee of the two houses be constituted to serve as a formal council to meet regularly with the executive to facilitate the formulationand carrying out of national policy. The problem of congress-executive relations remains. While this problem is in part a matter of machinery, it is alsoa matter of intent and spirit for making the best of the existing governmental machinery. When the President lacks friendliness and diplomacy, and whencongress is dominated by obstructionists, relations are bound to be bad. So when members of the executive become intoxicated and try to prove their ownalleged superiority over members of the congress, the relations are bound to be bad. Similarly when leaders of the congress drunk with power sabotage everyprogramme, the relations are bound to be bad. So what needs to be done is that the congressmen and officials be infused with the qualities of self-controland high statesmanship. The success of a system depends more upon the vision and the self-control and the goodwill of the men with whom two organs—thecongress and the executive—are staffed than upon the mechanism of the system. To conclude, it may be said that the present system of congress-executiverelations has served well enough and that the system contains within it the devices which harmonize their differences.American Congress and British ParliamentAmerica and England differ in their political systems. America is a federation with a presidential form of government. England has a unitary-cum-parliamentarygovernment. The constitution of England is mostly unwritten whereas the constitution of the U.S.A. is a written one. The two countries having differentpolitical systems have essentially different institutions. The American congress is "something very different from the mother of Parliaments.4"The following points of difference between the British Parliament and American Congress may be noted:109(i) England is a smaller country both in area and population than the United States but the membership of the British Parliament is larger than that ofthe American Congress. The British Parliament consists of over 1750,650 in House of Commons and over 1100 in House of Lords, members while the Americancongress consists of 535 members only (435 in the House of Representatives and 100 in the Senate).(ii) The House of Lords is mostly a hereditary chamber, the Senate, on the other hand, is a directly elected chamber.(iii) The British Parliament is a sovereign legislature, Congress is non-sovereign. The powers of the British Parliament are unlimited. As popularly said,"It can make minor a major and declare an illegitimate child to be a legitimate one but it cannot make man a woman and woman a man." There is no matteron which the British Parliament cannot legislate. Its laws are not subject to judicial review. No court in Great Britain can declare its laws unconstitutional.The American Congress, on the other hand, possesses limited powers as defined by the constitution. It has no jurisdiction over the matters left to thestates. This is the inevitable result of the federal nature of American polity. Secondly, the laws made by the congress are open to judicial review. AsBrogan has said, "The legislators have to think not only what their constituents want, or will stand, but whether what congress does decide will seem tofive elderly lawyers the sort of thing the framers of the constitution would have approved of, if they could have foreseen what, in fact, they by no possibilitycould have foreseen."5(iv) Lastly, the two bodies differ sharply in their relations to the executive. In Great Britain, the parliament at least, in theory, controls the executive.It is the master of the ministers who are drawn from it and who are responsible to it for all their acts of omissions and commissions in politics. Theyare present in the parliament to answer the searching questions of the members. On the other hand, in the United States, the Congress and the Presidentstand apart from each other. The Congress cannot remove the ministers nor are ministers present in the Congress to answer questions. There is no questionhour in the United States. The Prime Minister can get the House of Commons dissolved, but the American President cannot dissolve the Congress before theexpiry of its term.It may not, however, be presumed that the British Parliament exercises more influence upon legislation and administration than the American Congress. Dueto the parliamentary system of government, all the authority has passed on into the hands of the cabinet which is the110"Steering wheel of the ship of the State." The parliament has become a tool in the hands of the cabinet. In England we talk of the growth of cabinet dictatorship.But in the United States, there is no executive despotism. The American system operates under the principle of "checks and balances" which has checkedthe emergence of the dictatorship of the President or the Congress. If we look to the actual control, the Congress has exercised more effective controlon the President than the British Parliament on the cabinet. The British Parliament merely registers the will of the cabinet, but the American Congresshas on many occasions refused to approve the President's proposals. Thus the role that the Congress plays in administration of the United States is significantand vital.House of Representatives Compared with the House of CommonsA brief analytical study of the powers of the Commons vis-a-vis the House of Lords and the House of Representatives vis-a-vis Senate proves the contentionthat the House of Commons enjoys greater authority than the House of Representatives. Since 1911, the House of Commons enjoys a clear supremacy over theHouse of Lords. But in the United States, the Senate has from the very beginning enjoyed greater prestige and powers than the House of Representatives.The Senate, as we have read earlier, possesses not only equal and co-ordinate legislative and financial powers but has also been given some special powerswhich have made the House of Representatives play an inferior role to the Senate.The parliamentary character of the British Government also empowers the House of Commons to control the executive. On the other hand, the presidential characterof the American Government has deprived the House of Representatives the privilege of holding the executive responsible to it. The control of the executiveby the Commons established its superiority over the Lords whereas the absence of such a control in the United States makes the Representatives play secondfiddle to the Senate.In the sphere of legislative power, the House of Commons possesses the ultimate authority of passing the bills. The House of Lords can delay a bill onlyfor a period of one year after which it becomes an act with the consent of the Queen. In the U.S.A. the Representatives cannot override the veto of theSenate. In the joint conference committees, the will of the Senate has been prevailing over the Representatives.111As regards constitution amending power the House of Representative shares with the Senate the power of proposing amendments to the constitution. In UK themajority in the House of Commons can bring about any change howsoever substantial. In England parliament by majority can do anything but make a man womanand woman a man. Practically speaking, majority in parliament means majority in the House of Commons.In the financial sphere, the House of Commons is supreme. The House of Lords can detain a money bill for a period of one month only. In the United States,the Senate can amend a money bill to the extent of changing all of its provisions and making it a new bill. It can reject the money bills as well. TheHouse of Representatives cannot impose a tax or sanction an expenditure without the consent of the Senate.In USA the House of Representatives is vested with electoral powers. In case no presidential candidate captures absolute majority the House possesses otherpower of electing one out of three candidates as presidents of USA. The House of Commons is responsible for bringing a cabinet in power and then retainingit. Ministers are drawn from the party holding majority in the House of Commons.The House of Commons can remove a ministry from the office. The cabinet is responsible to it and remains in office only so long as it enjoys the confidenceof the Commons. The Lords cannot make or unmake a ministry. In the United States, the House of Representatives does not exercise any direct control overthe executive. It can only frame charges. The trial is to take place before the Senate. Two-thirds majority is required in both the Houses to remove thePresident.Thus looking to the superiority of the House of Commons over the House of Representatives with regard to control over legislation, finance and executivewe may agree with Harold Stannard that 'The greatest of all the differences between the British and American constitutional practices lies in the widelydifferent measures of authority enjoyed by the House of Commons and the House of Representatives."References1. Tourtellot, A.B., An Anatomy of American Politics, p. 78.2. ibid., p. 79.3. Laski, H.J., op. cit., p.129.4. For comparison between the Senate and House of Lords see the last chapter.5. Brogan, D.W., The American Political System, pp. 137-138.1128 THE CONGRESS AT WORKThe real work of congress is transacted not on the floor of the two chambers but in the committees, which have been called 'little legislatures.'—Joseph P. HarrisThe two houses of Congress meet in chambers at opposite ends of the national capital building, a monumental building of marble and sandstone surmountedby a great dome. Seating arrangements are semicircular. Democrats sit at the right hand of the presiding officer as he faces the members, and the Republicansat his left In the Congress there are no so-called Treasury and opposition benches. The Speaker, except when the House is sitting as committee of the whole,is in the chair. Each party has its floor leader who is the official strategist of his party in the House. The floor leaders help the Speaker to keep thingsmoving.Process of Law MakingLaw making is an important function of the Congress. According to Griffiths, both the British and Americans strive to provide thorough discussion and consideration.Both are determined that minority shall have a fair opportunity to be heard, to criticize, to offer alternatives. Both offer opportunity to criticize theadministration and call it to account.Introduction of BillIn the United States, there are no government bills as they are in Britain. The government has no seat in the Congress and all bills, public or private,are sponsored by the members of the Congress. The President or any member of the cabinet cannot introduce a bill directly. If the government wishes tointroduce, it may announce that the113administration desires to have the bill passed. Majority of the bills are introduced on behalf of the administration. But some of them are inspired by pressuregroups or private individuals. Anyway, whatever may be the source of initiative, the bills are introduced by the members of the Congress. If a Congressmandesires assistance in drafting a bill, there is an office of Legislative Council at his service.The procedure of introducing the bill is simple. The Congressman merely writes his name on the bill and drops it into a box known as the "hoper" on theclerk's desk. No limit is imposed on the number of bills a member may introduce. Each Congress has faced an average of about 14,000 bills but it is onlya few hundred that ever get beyond the initial stages. The bills introduced remain 'alive' until disposed off or until the end of the existing Congress.The bills and resolutions put into the box are sorted out and given serial numbers becoming "H.R. 253" or "S. 1160" or "H.J. Res. 268" or "S.J. Res. 14"indicating the House of origin and nature of the bill or resolution. There is not much of difference between the bill and joint resolution except thatthe latter is intended for temporary situations. Otherwise a joint resolution is similar to bill, undergoes the same procedure and becomes effective underthe same conditions. A joint resolution is also submitted to the President for signature. After the bills have been sorted out and numbered, they are printedin the Journal and the Congressional Record.The Committee StageThe presiding officer decides to which of the various committees a particular bill will go for consideration, though often the contents of a bill virtuallydictate the choice of the committee. Agricultural matters, for example, will go to the committee on Agriculture. Military matters will go to the committeeon Armed Services. If the presiding officer has any doubt as to what committee should receive the bill, he may settle the problem by dividing the billbetween two committees. In the case of so called private bills, the member who introduces the bill indicates the committee which he thinks ought to dealwith it.When a committee has received the bill, it gives to the bill a preliminary examination to find out whether it has any merit or not. If the committee findsthat the bill is not worthy of consideration, it takes no further action and puts the bill back on the committee's files. The bill is merely "pigeon holed"that is pushed into the discard compartment of the Chairman's desk. That is what happens to most of the bills which a committee receives. The bills whichthe committee thinks worthy of114consideration are studied in detail and relevant information is sought from all the sources.If the bill is an important public bill, the committee announces public hearings. The interested individuals and representatives of interested organisationsmay appear and give testimony. The opponents of the bill may also appear and state their positions. If the matter is regarded as requiring immediate action,the period for hearing may be limited to stated days and the testimony of each person may also be limited in time. Friends of the bill seek to demonstratethe necessity for its enactment while the opponents present evidence to show why it should not be passed or why it ought to be amended in a particularway before enactment. The representatives of the press attend the hearing and spread information about proceedings.The committee also gets information and data from the committee library, the Congress library, official files and heads of the departments. It may appointsub-committees to study the specified portions of the bill. The congressman also appears before the committee to inform it of what their voters think aboutthe bill. The pressure groups also write to the committee or appear before it.On the basis of information gathered from the official file, Congress library, heads of departments investigations and public hearings and the opinion receivedfrom the Congressmen and pressure groups the committee arrives at its verdict. It meets in executive (closed) session and may take one of the followingdecisions: (i) It may recommend the bill back to the House just as it stands with a recommendation that it be passed, (ii) It may amend the bill and recommend that it be passed with the proposed amendments, (iii) It may entirely change the original bill and recommend a new one in its place.(iv) It may reject the bill and report that the bill need not be passed, (v) It may decide not to make any report at all. In other words it may "pigeon hole" the bill.If the committee fails to report the bill, the House may "discharge" the committee—that is, call upon the committee to submit the bill. The report is usuallymade by the Chairman of the committee or someone designated by him. The report is likely to run into only a few printed pages, but on important mattersit may be an exhaustive and extensive report. It is accompanied by printed copies of the hearings, which may run into several hundred or even several thousandpages. Minority reports also may be filed.115The CalendarsWhen the committee makes its report, the bill is placed on one of the three calendars. Bills raising revenue, appropriating money or property, directlyor indirectly are placed on the Union Calendar. Bills which are public but not fiscal in nature are placed on the House Calendar. All bills of a privatecharacter are assigned to the private Calendar. There are two other calendars—consent Calendar and discharged Calendar. The bills which are non-controversialand have every chance of being passed by the House may be transferred from the Union or House Calendar and placed on consent Calendar if a request is filed.Bills withdrawn from the committee by petition are placed on the discharge Calendar. Above we have said that if a committee does not report back a bill,the House may 'discharge' the committee that is, call up a bill from it. Such bills are placed on discharge Calendar'Consideration on the FloorAccording to the Rules of the House, the bills are taken up for consideration by the House in their Calendar order, but numerous exceptions are made sothat action may be secured on the more important measures. Several devices are used to select bills for consideration out of Calendar order: (i) A motion may be made to suspend the rules which must receive a two-thirds vote, (ii) Some committees may bring up privileged matters especially revenue and appropriation bills, (iii) The Rules Committee may bring in special order for which the backing of a mere majority is sufficient, (iv) Bill may be brought for immediate consideration by unanimous consent from the consent Calendar.(v) On Wednesdays except during the last two weeks of a session the committees may call up for passage of some of their own bills, otherwise unprivileged,(vi) The members may secure unanimous consent for immediate consideration of a bill.The Calendars are very much crowded and only the important bills are selected out of their sequence by one of the above devices. Hundreds of bills 'dieon the Calendars' in every Congress.The House considers the bill or gives it a "second reading" in the committee of the whole. Technically, there are two committees of this kind, i.e., "committeeof the whole House on the state of the Union" for considering all Union Calendar Bills (Bills raising revenue,116appropriating money or property) and a committee of the whole House for the consideration of private bills. A member moves that the House resolves itselfinto the committee of the whole for consideration of a particular bill. The motion if passed by the majority, the Speaker appoints a member to act as aChairman. The procedure in committee of the whole is freer than in the House. A hundred members constitute the quorum. No record roll-call votes are taken.Motions to refer or to postpone the bill under discussion are not permitted. The bills are read section by section, and amendments may be offered to appropriatesections. When the discussion is completed, the committee of the whole rises and reports its action back to the House.The device of the committee of the whole is an important device. It enables all the bills to be considered and discussed thoroughly in a less formal atmosphereand move speedily. Every member who desires to speak can speak and move amendments. "It facilitates rapid fiery critical debate which commonly shows theHouse at its best. And, for better or worse, the absence of recorded ayes and nays enables members to register their sentiments without check or restraintsuch as published votes sometimes impose."The bills which are not considered by the committee of the whole are given second reading by the House sitting as House with the Speaker in chair. Generaldebate precedes second reading. Amendments may be offered as sections are read. The House generally predetermines the time for debate and divides it equallybetween sponsors and opponents. The members in control grant time to those who wish to speak. It is very common for one member to ask another who has thefloor if he will yield. If the member who holds recognition wishes to step aside for a moment, a question or brief statement may be interposed.If the bill was referred to the committee of the whole, the bill when reported back is put before the House by the Speaker for accepting or rejecting therecommendations made by the committee of the whole. The House accepts the bill as reported by the committee. Thereafter the Speaker states, "The questionis on the engrossment and third reading of the bill as amended."2 The third reading is merely formal. As a matter of fact, it is not read a third time,except by title, unless some member requests that it be read in full. The Speaker then states, 'The question is upon the final passage of the bill". Thevotes are taken and if the bill is passed, it is signed by the Speaker and transmitted to the Senate for concurrence.117How Votes are taken?Four methods of voting are used by the House. (1) The first is voice vote method. This is the usual method but if this is indecisive, or one-fifth of aquorum requests, another method may be used. (2) The second is division method wherein the members are asked to stand and the Speaker counts them. (3)The third is teller method wherein the members file past a given point to be counted for or against a bill. (4) The fourth method is Roll-Call method whereinthe clerk of the House takes the Roll-Call, each member saying Ayes or 'nay' and the clerk records the Ayes or 'nay'. Naturally, the last method takesa great amount of House time as each name is called and the vote is recorded.Consideration in the SenateAfter the bill has been passed by the House, it goes to the Senate for consideration. In the Senate also the bill undergoes all those stages which it passedthrough in the House of Representatives. The President of the Senate refers it to the appropriate committee. The committee holds hearing on the bill, whichmay be more extensive or less extensive than those held by the committee of the first House. If the bill is one which has the support of the governmentit may conceivably have been introduced in both Houses at the same time. In that event, committee of each House may have held hearings, before either Housepasses the bill. When it is passed by one of them, it thereafter carries the number given to it by that House and is substituted in the other House forthe bill originally introduced there. The House may hold additional hearings.After the committee has considered the bill, it is placed on the Senate Calendar of Bills. It may be noted that unlike the House of Representatives, thereis only one Calendar of Bills in the Senate. All the bills reported by the committees are put on this single Calendar. Since the size of the Senate issmaller and there is only one calendar, therefore the elaborate selective and restrictive devices employed in the House of Representatives are not usedin the Senate. The Bills that are not objected to, are taken up in the order listed in the Calendar. The bills can be called up from the Calendar out ofturn also. The second reading of the bill is done in the Senate. It may be noted that Senate does not make use of the Committee of the whole for the secondreading of the bill. The plan was abandoned in 1933. Thus, the bill is read the second time in the Senate. Full discussion takes place and amendments maybe proposed. The obstructionists may indulge in filibustering unless 'closure' is applied. After the discussion is over, the President puts the questionfor engrossment and third reading. Then the question is upon118the final passage of the bill. After the votes are taken, the original bill together with the amendments, if any, is returned to the House of Representatives.Conference CommitteeIf both the House pass identical versions of the same bill it is 'enrolled' on parchment paper signed and sent to the President. But if the Senate has madeamendments to it, the amendments are placed before the House and the House may accept these amendments. But if the House does not accept the amendments,a member may request for a conference committee. The committee usually consists of three to five, sometimes nine members, from each House. These membersare appointed by the presiding officer of each House. At the conference, only matters in disagreement are considered. In many cases, the result of theconference is a compromise. After compromise, each set of conference reports back to its House. If both the Houses accept the compromise, the bill is readyfor the next step. If not, it goes back to the conference committee for further consideration. Conference committees, it is pointed out, have become asort of third House. They are criticized because proceedings are secret and bills may be re-written arbitrarily.President's AssentIf and when the bill is passed by both the Houses in identical form, it is signed by the presiding officers of the two houses and sent to the Presidentof the United States. If signed by the President, it becomes a law. It also becomes a law if the President holds it for a period of ten days, Sundays excepted,provided during this period of ten days the Congress continues in session. If the President returns the bill to the House of its origin with a statementof his objections, which is called a veto message, and the Congress passes it again by a two-thirds majority, it will become a law on being passed forthe second time. But if the Congress adjourns before ten days have elapsed since the submission of the bill to the President and the latter does not takeany action over the bill, the bill is killed by the 'pocket-veto' of the President.Once enacted and signed by the President, the bill becomes a law and may be found in the statutes at large of the United States for the particular session.From time to time, statutes are codified in the Code of the Laws of the United States of a General and permanent character... commonly called "U.S. Code."The above is an account of the more important steps involved in the life of a bill from the time of its inception to the time when it becomes a119law. The bill, as may be noted, runs the risk of being side tracked at any point. The committee to which it is initially referred, may 'pigeon hole' itAfter holding hearings, it may decide against reporting the bill or it may change the bill beyond recognition. After the bill is reported, it may be neverbrought from the calendar for consideration and may die languishing on the calendar. If it is considered, it may be amended or rejected by the House. Ifit is passed, the other House, may amend or reject it. If it goes to the conference committee, the committee may be unable to agree, or one or both housesmay refuse to accept the conference report. Then in the last stage of its journey, the President may veto the bill. So uncertainty prevails till the Presidenthas put his signature or it has become a law by the renewed action of both houses after the signature has been refused. Munro remarks, "On the way to itsdestination, there are hills to be climbed and streams to be boarded so that among the myriad bills that start their journey, it is only the most robustthat survive the end."3The BudgetThe budget is the annual financial statement showing the expenditure and income for the incoming fiscal year.4 It is prepared at the Bureau of the Budgetunder the supervision of the Director. The Director is appointed by the President for an indefinite term (without confirmation by the Senate). After approvalby the President the budget is sent to the House of Representatives. Without debate the appropriations section of the budget is referred to the committeeon Appropriation. The Committee of Appropriations refers the various groups of items to several committees for detailed study and public hearings. Thesesubcommittees which are organised on departmental lines, work on the figures, and, whenever necessary, call in the various executive officials to explaintheir respective needs. Those opposing an appropriation may also be heard. When the sub-committees have completed the study, each sub-committee draftsits own bill and reports to the general committee. The latter examines these bills and with change, if any, sends the various appropriation bills to theHouse. The House sitting as a committee of the whole debates these bills one after another. The House has a right to insert, strike out, increase or decreaseitems at its discretion, but this is rarely done. Consequently, the bills usually go through without a great deal of change from the committee's recommendations.Having passed the House, the various appropriation bills go to the Senate. There also, they are referred to a committee on appropriations.120The Senate committee examines the bills and may propose any changes in the amounts. The Senate considers the reported bills. If the Senate has made changes,the appropriations are sent back to the House for concurrence, failing which they are referred to a committee of conference made up of selected senatorsand representatives. The conference committee tries to adjust the items and gets the appropriation bill into committee in such a shape that both the Houseand the Senate can agree on every word of it.When an appropriation bill is passed by Congress, the President has no alternative but to sign it. He can veto the whole Bill if he so chooses but he cannotveto any individual items on it, leaving the rest to stand.The Director of the Bureau of the Budget also prepares the revenue part of the budget. He obtains data from the treasury and prepares an itemised reportshowing the anticipated national receipt including revenues from existing and proposed taxes. After these taxes have been approved by the President, theyform part of the budget and are sent to the House of Representatives. The Ways and Means committee of the House takes up the task of studying new taxes.It holds hearings, and, when these are concluded, it reports one or more revenue measures to the House. The House in Committee of the Whole discusses thetax measure and may make changes. After the House has passed the tax bills, they go to the Senate which refers them to the committee on finance. The committeemay recommend changes in the Bills which the Senate may or may not accept. In case the Senate makes some changes and the House does not conclude, theyare referred to committee of conference which tries to reach a compromise. The conference committee reports the compromise to their respective chambers,which finally pass the bills and send them to the President to be parison of the law making procedure in America and EnglandThe basic difference in the organisation of the national legislature in England and America has produced important differences in the law making procedurein the two countries. In the first place, it must be noted that in Great Britain the legislative business of Parliament is conducted under the guidanceand leadership of the cabinet Majority of the bills are introduced by the ministers who have their seats in the Parliament. The ministers see through thepassage of their bills. On the other hand, in America the Cabinet and the President are excluded from the Congress. They do not introduce the bills nordo they take part in the debates. The bills referred to as "administrative bills" are introduced by members of the Congress. In other words, in England,the cabinet plays121a great role in law making while in America the cabinet has no such role to play.Secondly, in America all bills are private members bills, but in England the public bills are divided into Government bills and Private Members bills. InAmerica there is no such thing as Government Bills.Thirdly, in England a bill is referred to the Committee after the second reading, i.e., after the House has approved its aims and objects, but in Americathey are referred to the Committee after the first reading, i.e., without the House discussing its aims and objects. In other words, in America the billdoes not come before the House before it is referred to the Committee but in England the House gets a chance to debate the aims and objects of the billbefore referred to Committee.Fourthly, in America the committee may not report back the bills to the House and may 'pigeon hole' them, but in England, the committee has to report backall the bills.Fifthly, in America the Senate has got greater powers than the British House of Lords in respect of both the ordinary bills and money bills. In case ofdisagreement, if no compromise is reached at the conference committee, the Bill is killed.Lastly, in England the king/queen has to accord his/her assent to the bills passed by the parliament. He or she is only a figure head. In America the Presidenthas the veto power and he may delay the passing of a bill.Thus, while both the British and American systems strive to provide thorough discussion, and a fair opportunity to the minorities to be heard, to criticizeand to offer alternative; to criticise the administration and call it an accursed, there are marked differences in procedural methods. The rules of procedureand precedents in both Houses and Senate according to Griffiths "present a maze, a mystery which even those of long standing membership often find it difficultto master completely."Committee SystemMuch of the intensive work on legislation is done in committees. Both the Houses of Congress make use of the committees. In the United States the Committeesystem has a peculiar importance because it has a presidential form of government. Neither the President nor the members of his cabinet sit in either Houseof the Congress. The Congress is without leadership and this fact gives importance to the committee system in the U.S.A. As the two Houses have grown largerin membership and their problems have increased in number and122complexity, they have delegated even more important decision making to committees. In England, the committees do not have that much importance. The ministryin power controls and directs the work of legislation. In the United States the committees are "little ministries" with enormous power.Kinds of CommitteesThere are two types of committees in the United States, standing committees and special committees. The standing committees are the most important committees.It is these committees which examine the bills and decide their fate. The special committees are appointed to perform a single definite task and, whenthat is done, they immediately dissolve. The standing committees are permanent or regular committees.Standing CommitteesThe number of standing committees was relatively small for a long time but by 1927 the number rose to 61 in the House and 33 in the Senate. In 1946, Congressrecognised fifteen committees in the Senate and nineteen in the House of Representatives. The fifteen Senate committees were listed as follows:Committee on Agriculture and mittee on Appropriations,Committee on Armed mittee on Banking and mittee on Civil mittee on the District of mittee on Expenditures in the Executive mittee on mittee on Foreign mittee on Inter-state and Foreign mittee on mittee on Labour and Public mittee on Public mittee on Public mittee on Rules and Administration. The nineteen House committees were listed as follows:Committee on mittee on mittee on Armed mittee on Science and mittee on Banking and Currency.123Committee on Post Office and Civil mittee on the District of mittee on Education and mittee on Expenditure in the Executive mittee on House mittee on Inter-state and Foreign mittee on the mittee on Merchant Marines and mittee on Public mittee on Public mittee on mittee on Un-American mittee on Veteran's mittee on Ways and Means.The reorganisation has eliminated overlapping to some extent and has also eliminated a certain amount of inter-committee strife. However, at present thereare 16 Standing Committees in the senate and 22 in the House of mittee MembershipsEach Standing Committee includes members of both major parties. The ratio of Republicans to Democrats on each committee is approximately the ratio of theRepublicans to Democrats in the membership of each house as a whole. All legislative committees in the Senate consist of thirteen members except the Appropriationscommittee which has 21 members. Membership of the legislative committees of the House of Representatives varies considerably, ranging from twenty fiveto fifty members. The Appropriations committee consists of fifty members. Armed services committee consists of thirty-five members, Agriculture committeeconsists of thirty members. Most of the other committees have either 25 or 27 members. Formerly, some members served on five or six committees, but nowwith the number of committees vastly reduced the great majority of members have only a single regular committee assignment.The members of the committees are elected by the House itself. But what really happens is that when a new congress assembles, the members of each politicalparty in the House hold a caucus or "conference". Each caucus selects a group of its own members to participate in the work of state making. The two groupswork independently and then their lists are put together into a combined state. Thereupon the final state is submitted by each group to its own caucus124which approves it. Having been approved therein, it is reported to the House which accepts it without change. Thus while in theory the House elects thecommittees, in practice these are selected by small groups representing the majority and minority parties.Certain long standing customs are observed in assigning members to the various committees. The seniority principle is observed in making the assignments.Membership on important committees goes to the senior members. The best that a new member can ordinarily expect is to be assigned to one of the less influentialcommittees. Moreover, geography is also taken into account. Not all the members of any major committee are ever selected from one section of the country.Likewise a member's personal preferences are also taken into account. It need not be said that there is a tremendous amount of jiggling for position amongthe several members and some members are inevitably disappointed in the jiggling for mittee ChairmanshipThe chairman of a standing committee is usually the senior most member of the majority party in the committee. If he is the senior member of two or morecommittees he may choose the chairmanship of one of them. In that case the next senior member of the majority party will be the chairman. Seniority iscalculated on the basis of continuous longest service on the committee. When the party balance shifts from one party to the other, the chairmanship alsochanges.The practice of giving chairmanships on the basis of seniority has been much criticised. Senator Hubert Humphrey has characterised the practice as "thesacred cow in the legislative zoo". It leaves no scope for a member of administrative ability but not senior to be the chairman. It holds back men whohave a natural aptitude for committee work, and pushes forward others who have little or no administrative ability. Length of service is not a sure guaranteeof anything except a congressman's capacity to get votes in his home district. The seniority rule brings in another defect. It tends to bring about theselection of chairman from states which elect legislators from the same part, term after term and which tend to re-elect the same individuals instead ofmaking new selections. The states or districts which shift back and forth between Democrats and Republicans fail to get chairmanship. In other words, chairmanshipsare held largely by Southern Democrats and 'old Guard' Republicans. According to Griffiths, the seniority rule "gives congress as a whole a somewhat moreconservative tinge than is usual in the President or the executive branch generally."125Though the seniority rule has been criticised, yet there is little prospect of its being abandoned. It has a great advantage which outweighs all disadvantages.It settles the problems of allocating chairmanships peacefully and without controversy. The post of chairmanship is one of great patronage and influence.The chairman holds a pivotal position in the committee. If the seniority rule was abolished, there would be bitter and intense internal political warfarefor chairmanship. Moreover, the congressional procedure is so complicated that none but experienced members of long standing can tread their way throughits members. The rule of seniority produces an experienced corps of committee heads.Role of Standing CommitteesThe standing committees in the United States play very important role in law making. All bills introduced are referred to standing committees. They "constitutethe screen through which the great mass of proposed legislation is sifted". The congress receives 10,000 lo 15,000 bills. It is physically impossible forthe congress to handle this plethora of bills. Not all the bills are important. It is the job of the committee to decide which of the bills are worthyof consideration by the House and do the preliminary work of collecting facts, information and public opinion about them. The standing committees do alot of the work. They first give a preliminary examination to find out whether the bills have any merit or not The bills which are deemed worthy of considerationare sorted and the rest are "pigeon-holed." It is estimated that from 50 to 75 per cent of the bills introduced in the congress are pigeon-holed. The moreimportant bills are studied in details and relevant information is gathered from both the official and non-official sources. Public hearings are held andthe bill is thoroughly scrutinised. After thorough and searching examination the bills are reported back to the House. The bills which are not favourablyreported by the standing committees have little chance of being passed by the House. The House does not devote much time to the examination of the billsbecause these have been already examined thoroughly by its standing committees. Thus the bills are actually discussed and passed in the standing committees.That is why the standing committees have been called "little miniatures" or "miniature legislatures" or "the eye, the ear, the hand and very often thebrain of the House." The standing committees in the United States deserve a great deal of credit for the framing of legislation.126The Rules CommitteeThe Rules Committee is the most powerful standing committee of the House of Representatives and as such deserves a special heading. The Rules Committeeconsists of twelve members and is a "kind of traffic officer" for the House. A vast number of bills are reported from its standing committees. These billsare placed on different calendars where they wait for their turn. But because some bills are regarded more important than others, machinery has to be devisedfor determining priority of consideration. The Rules Committee decides whether a bill shall be called up, and its will prevail unless at least half ofthe total membership votes to bring up a bill which the Rules Committee is unwilling to report. Thus the Rules committee determines priorities among themany competing bills which have been favourably reported by the Standing Committees. It decides how much time shall be allotted to the consideration ofa particular bill and the condition under which amendments may be proposed and discussed. It can, at any time bring in new measure or resolution and interruptthe regular order of business in the House. It may itself draft a bill, bring it before the House for its passage in record time without reference to aStanding Committee. All proposals for amending the rules of the House are referred to it. It may disapprove these proposals and thereby block the passageof many a bill.The Rules Committee reached the height of its restrictive powers during 1947 and 1948, when it was under Republican leadership. Resentment against an obstructionby the Rules Committee had been accumulating since the middle of 1930's when President Roosevelt and other New dealers denounced it for obstructing theNew Deal programme. When in January, 1949 the Democrats were returned to power they voted an amendment providing that if a bill is reported by a legislativecommittee it might call up the bill on any second or fourth Monday for consideration by the House. The twenty-one days rule, as it was called, restrictedthe powers of the Rules Committee and clipped its wings but nevertheless it became apparent that the Rules Committee had not been an irresponsible bodyas on several occasions it had blocked the bills on the request of the President and the House of Representatives itself. On January 20, 1950, a resolutionfor repeal of the twenty-one days rule was placed before the House but it was rejected. In January, 1951 the twenty-one days rule was eliminated and thefull power of the Rules Committee was restored. At present the Rules Committee is again the most powerful single committee in the House.127Special CommitteeWe have so far discussed the Standing Committees which are legislative Committees to which bills are referred and which report bills for the action of therespective Houses. Certain of the standing committees have specialised functions such as the committee on Un-American Activities and the Rules Committee.Although the Congress operates primarily through standing Committees, it from time to time also creates special committees for various purposes. Amongthe special committees the following are the important ones:(i) Investigating CommitteesThe Investigating Committees are appointed by a resolution of the House for making designated investigations. The Chairman and the other personnel of theInvestigating Committee are chosen by the House without reference to seniority. The desire for an Investigating Committee may originate from some aggressivelegislator who wants a particular subject investigated or who wants for himself the prestige or notoriety which comes from heading a vigorous InvestigatingCommittee. The first Investigating Committee was appointed in 1792 to enquire into a military disaster suffered in an Indian attack on the North West Territory.The Congress in the recent past conducted about one hundred investigations each, some through independent Investigating Committees and some through Sub-Committeesof Standing Committees.The Investigating committees sometimes seek information useful to them in legislation, but mostly they aim at exposing inefficiency or corruption in theadministration. The investigating committees have been abused in recent years. Investigations are sometimes motivated by the desire of a political partyto advance its own interest or to embarrass its adversary. In 1920 and 1930, the Democratic Party did its best to discredit the Republican party throughinvestigation into the scandals of Harding Administration and the evils of bankers and businessmen. The Republican Party took its revenge in 1947-48, and1950-54 to expose the shortcomings of Roosevelt and Truman Administration. Thus instead of giving fair, impartial information to Congress and to publicfor constructive use, an investigating Committee "usually starts out" to prove something and hunts the evidence which will support this proof. Moreover,the Investigating Committees have shown gross disregard to the right of individuals to privacy or their right to treatment as self-respecting human beings.The investigation may be used to create unfavourable publicity for people whom the committee dislikes or128whose views it dislikes. It may damage their position in their committees and interfere with their opportunities for earning a livelihood.(ii) Conference CommitteesAnother type of special committee are the Conference Committees. They have been described as "the most important pieces of American Constitutional machinery,though unknown to the written Constitution." The Conference Committees consist of members of both houses who are appointed by the respective presidingofficers. The members may be sometimes as few as three, sometimes as many as eleven. They usually include the principal sponsors of the bill in each house.The Conference Committees are appointed to adjust the difference between the two Houses, that is, when the House and Senate fail to agree upon any measure,one of them having passed the measure with amendments which the other declines to accept. The Conference Committee meets behind closed doors and triesto work out something which may be acceptable to both the Houses. The Committee is not supposed to put into a bill anything that is not already there,but sometimes in order to reach a compromise, a general reshaping of the bill is found essential. If the Committee fails to reach a compromise, the billfails of enactment. If a committee does reach agreement it is reported to the respective chambers by the conferences. The compromise is generally acceptedby both the Houses but if one of the Houses rejects the compromise, the bill is likely to be sent back to the conference committee for further consideration.A report from a conference committee is privileged, i.e., it may be presented at any time.(iii) Committee of the WholeThis is merely the entire membership of the house sitting as one great committee. The Speaker does not preside over it but he appoints another members asits Chairman. The purpose of converting the house into committee of the whole is to expedite business and to this end the normal rules of the House arerelaxed. The quorum is 100 members, not a majority of the house. There are no roll calls. After general debate, no member may speak longer than five minutesexcept by unanimous consent. The House makes great use of this facility and sits for a longer period as "House in Committee of the Whole" than in a regularsession. All the appropriation and revenue bills are considered by the Committee of the Whole House.129(iv) "Watch Dog" CommitteesThough it was not named as such but the special committee appointed by the Congress under the Taft Hartley Act of 1947 to make a thorough study and investigationof the entire field of labour management agreement relations was labelled "Watch Dog" committee. When Congress makes laws dealing with rapidly changingsituations and when such laws confer broad powers upon administrative officers, it often seeks way of checking on the administration of these laws. Oneof the techniques used is the establishment of 'Watch dog committees'. The Congress appointed another such committee, the Joint committee on Foreign EconomicCo-operation to study and report the experience of the Economic Co-operation Administration in administering aid to Europe under the so-called MarshallPlan. The members of the committee watched particularly the reaction of communist countries to the Marshall Plan and the conduct of beneficiary Governmentin living up to their commitments to the United States.American and British Committee System ComparedThe American Committee system differs from the British Committee system in vital respects. The points of difference are the following:(i) In England the number of committees is much smaller than in America. There are nineteen standing committees in the House of Representatives whereasthe House of Commons has only five Standing Committees. The British Committees in England are distinguished only by a letter of the Alphabet A, B, C, D,while in America, the committees have been designated after the subject matter dealt with by them. The members of British Committees are appointed by theCommittee of Selection nominated by the party leader and confirmed by the House at the beginning of each session. In the American Congress the Committeesare constituted by agreement between the "Committees" of the parties and then formally elected by the chamber concerned. In America, the Chairmanship goesto the seniormost member of the majority party on the committee but in England the Chairmen are appointed by the Speaker from a Chairmen's panel, consistingof not less than ten members nominated by the Selection Committee. Thus the Standing Committees in America differ in their number, size, mode of appointmentsand selection of the Chairman from those in England.(ii) In England different kinds of bills are referred to different types of Committees. Thus private member bills are referred to the Committee on PrivateBills. In America all the bills are referred to the same Committees as no distinction is made between government bills and private members bills.130(iii) In England the committees are general purpose Committees, each of them dealing with many different subjects. They are known as committee No. 1 andcommittee No. 2. In America the committees are of a specialised character dealing with a particular subject.(iv) The Chairmen of the standing committees in England are neutral and act in a non-partisan way but the Chairmen of the Congressional Committees are partymen and openly favour their party.(v) The Committees in England work under the leadership of the cabinet whereas in America due to the theory of separation of powers the executive is conspicuousby its absence from the committees.(vi) In England the bills are referred to the committees after the second reading, i.e., after the House has agreed to the principles underlying the bill.But in the U.S.A. it is sent immediately after the first reading even before the bill has actually appeared on the floor of the House.(vii) In the United States, the Committees are far more powerful than the Committees in England. The American committees can kill the bill, by not reportingthem back to the House. They can make amendments to the extent of changing the entire text of the bill. They can hold public hearings and lawyers can appearbefore them to support the case of their clients. On the other hand, the British committees do not enjoy such wide powers. Firstly, they must report backevery bill sent to them. They cannot 'pigeon hole' any bill. Secondly, the amendments proposed by them must not cut into the principles of the bill, alreadyaccepted by the House. Thirdly, the Committees in England do not conduct public hearing. The Committees in America have been called 'miniature legislatures'as they conduct public hearing. Hence the British Committees cannot be called mini legislatures.(viii) Lastly, the Committees in America have overshadowed the House of Representatives. The real law making is done in the Committees. A bill not favourablyreported by the Committee has little chance of being passed by the House. The House does not debate the bill long, once it has been discussed in the Committee.On the other hand, in England, the House of Commons has not surrendered its power of law-making to the committees. Its Committees are only auxiliaries.They do not possess the power of life and death over the bills. The House of Commons jealously guards its responsibility of making laws.Pressure Groups and LobbyingA very important part in influencing legislation in America is played by pressure groups and lobbying. Pressure groups are the non-131governmental groups which are organised to exert pressure on legislation and administration. A division is made between pressure groups and political parties.We do not characterise a political party as a pressure group because by definition a political party is an organized group of people who aim at capturingthe government through the use of constitutional methods for promoting national interests. The party has its leaders in the interests of the group exertingthe pressure. It has no recognised leaders in the legislature. A pressure group is not a political group.There is nothing illegitimate about the persuasive or coercive influence which the pressure groups exercise. It marks the exercise of the will of individualsand groups to shape the course of governmental action. The fact that legislators respond to pressures must not be taken to imply that the congressman isa completely helpless power or a rubber stamp. A pressure for legislation to better the conditions of labour, of industry, of agriculture is not an alieninfluence. The different pressure groups exert pressure in different directions and it is the legislator's task to find the highest measure of unity andharmony. He should find the common elements in the progress of several groups and work out patterns of legislation, for their mutual benefit.The most powerful pressure groups in America are those representing labour, the fanner, the Negroes, the business and the veterans. The Chamber of Commerce,the Factional Association of Manufacturers, the American Bankers' Association, the American Farm Bureau Association, the American federation of labour,the American Veterans' Committee are the examples of some pressure groups. The pressure groups try to achieve their objects (i) by building up a strongorganisation (ii) by carrying on propaganda through books, pamphlets, newspapers etc. and (iii) by lobbying.LobbyingLobbying is a word used to refer to the methods by which pressure groups make themselves felt in the Congress. The activity takes its name from the longestablished practice by which interested parties have congregated in the lobbies of legislative halls to find out what legislators were doing and planningto do and seek legislative favours. The word 'lobbying' has had connotation because it implies the exercise of undue influence upon legislators who oughtto think and act for the general welfare rather than for the welfare of a particular pressure group.132Lobbying is in process all the time i.e. when the Congress is in session and much of the time when it is in recess. Subject matter and methods are infinitein their variety. It is said that there are more than a thousand "lobbyists" functioning permanently in Washington. There are many more active in Statecapitals. The pressure groups employ expert agents, sometimes former Senators and Representatives, for lobbying. By means of letters, telegrams, telephonecalls, articles in the press, personal contacts and memorandums they try to influence the opinion of the congressmen. Sometimes, underhand methods likepurchasing the votes of legislators, doing undue favours to legislators and intimidation of legislators are also used. A recent development in lobbyingtechnique is what is known as "grass roots lobbying," i.e., influencing a Congressman by flooding him with letters, telegrams and telephonic calls fromvoters of his constituency and by whipping up campaign in local newspapers. The business groups maintain powerful lobbies in the Congress and the statelegislatures.Lobbying is carried on not only by the outside groups but also by groups, within the government itself. The government employees through their organisationstry to exert pressure upon the Congress about compensation, classification, retirement benefits and other such favours. The military development and theSocial Security Administration have brought pressure upon the Congress for the adoption or rejection of a particular policy or enlargement of a particularprogramme.Lobbying, in spite of its dubious methods and undesirable influence, has become a part of the American system of government In England there is no lobbyingor we may say lobbying plays an insignificant role there. The reason is that the cabinet responsible for framing the legislative programme and any billfavoured by the cabinet will be passed by the House of Commons because it has got majority in the House. So in England, the interested groups do not wanderin the lobbies of the White Hall influencing the members of the parliament. They seek to influence the Prime Minister who is the leader of the cabinetand the House of Commons. In America the absence of cabinet leadership in the Congress makes lobbying necessary and plays an important part in legislation.The Congress has not disapproved the lobbying rather it seems to approve of that process. Purification not the condemnation of the process was the purposeof the federal Regulation of Lobbying Act which was passed as a part of the legislative Reorganisation Act of 1946. In recommending the enactment of thebill,133the Special Committee on the Organisation of Congress emphasised that all the bills did not seek to outlaw Lobbying. It only required certain classes ofLobbyists to register, to state their purpose and to list all contributions and all salaries and all expense account reimbursements. The registration oflobbyists has provided a wealth of information on the activities of the lobbyists, and the amount expended by them and the items of expenditure. But itis doubtful whether the information provided by them is wholly correct. There is also reason to believe that a great many lobbying activities are carriedon by persons who ought to register but who have not done so. In any case, the requirement of registration has not restrained the practice and extent oflobbying in the United States.References1. A Calendar is a list of measures reported from the committees and ready for consideration by the House.2. Engrossment means the typing of the bill exact in the form that has been given to it before third reading and final passage.3. Munro, W.B. op. cit., p. 345.4. In America, the fiscal year begins in July.1349 THE FEDERAL JUDICIARY"No feature of the Government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration,and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the arc of theConstitution."—Lord BryceCourts are essential in all organized societies. Their organisation and role vary with the form of government, political theories, social and economic systems,traditions and customs. The Articles of confederation did not provide a federal judiciary in the United States. The Judicial task was left exclusivelyto the States. When the plans for a federal government were being laid at the Philadelphia Convention, the necessity for a federal judiciary was felt.Hamilton said, "A circumstance which crowns the defects of the confederation remains yet to be mentioned, for want of a judiciary power. Laws are deadletter without courts to expound and define their true meaning and operation." In order, therefore, to function successfully, it was realised that thefederal system of government must have a strong judiciary which shall remove not only the defects of the confederation but also provide harmony among theconflicting decisions of the highest state courts. This will also be in consonance with theory and practice of federalism. Accordingly, the constitutionprovided in Article III that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congressmay from time to time ordain and establish." The Congress enacted the Judiciary Act of 1789 which with numerous amendments forms the basis of the federalhierarchy of courts.135THE SUPREME COURT Its OrganisationThe Supreme Court is the creation of the constitution as it has been specifically mentioned in Article II. The other federal courts have been created bythe Congress. The Supreme Court stands at the apex of the American judicial pyramid and since the early 1930's has been housed in an imposing marble structure,facing across the park towards the east front of the national capital. The constitution has not fixed the number of judges. The number was reduced twiceand increased five times. The number of judges varied from 5 to 10. As first constituted it consisted of a chief justice and five associates. Its membershipwas reduced to five in 1800; increased to seven in 1807; increased to nine in 1837 and ten in 1863; reduced to seven in 1866; and in 1869 it was fixedat nine. Today the Supreme Court consists of one chief justice and eight associate judges.AppointmentAll the judges are appointed by the President and with the advice and consent of the Senate. The constitution prescribes no qualifications for the judge.Hence the President is free to appoint any one for whom senatorial confirmation can be obtained. The rule of "senatorial courtesy" does not limit the choiceof the President From its very inception, an attempt has been made almost invariably to select men of high prestige and outstanding ability. Though sometimesappointments have also been made to repay political debts, to show deference to a particular section of the country or even to provide representation fora political party which would not otherwise be represented, even then the calibre of the men selected has been, in general, high.TenureThe judges hold office during good behaviour and are removable by impeachment only. A judge may retire, if he wishes, when he reaches the age of seventyor at any time thereafter. He can retire with full salary provided he has served on the Bench for ten years. He may retire at sixty-five with fifteen yearsof service, or at the age of 70 with 10 years service at his credit and receive full pay for life. Since the judges do not readily give up office evenwhen they reach the retirement age, there has been criticism of life appointments. It is contended that a tribunal made up of life appointees is undemocratic.The life appointees lack the needed incentive to keep up with the times and to exercise their functions in harmony with the dominant sentiments of thepeople. On the other hand, the defenders of life appointments contend that without136security to tenure the court would lack the security of outlook which is necessary for sound performance. However, it may be said that the prestige of theSupreme Court has generally been maintained at a high level so as to indicate that the court has justified the confidence bestowed upon it in giving lifetenure to its members.The chief justice is paid 35,500 dollars a year whereas associate judges 30,000 dollars a year as salary.SessionsThe Supreme Court holds one regular session every year beginning on the first Monday in October and ending early in the following June. Special sessionsmay be called by the Chief Justice when the court is adjourned, but the occasion must be of unusual importance and urgency. Six Judges constitute the quorum.The Chief Justice is the executive officer of the court; he presides over all sessions and announces its orders. The court conducts hearings on Tuesday,Wednesday, Thursday and Friday. On Saturday, the Judges confer among themselves and register their opinions. On Monday, judgements are delivered in public.All the judges sit together. There are no benches. A decision may be unanimous or divided, if divided, their majority and dissenting opinions are usuallywritten. The Judges who agree with the majority decision, but not with the reasons may write concurrent opinions. The decisions of the Supreme Court arepublished in the United States Reports.Its JurisdictionSection 2 Article III of the Constitution states: "The judicial power shall extend to all cases in law and equity arising under this constitution, the lawsof the United States, and treaties made or which shall be made, under their authority - to all cases affecting ambassadors, other public ministers andconsuls - to all cases of admiralty and maritime jurisdictions, to controversies to which the United States shall be a party, to controversies betweenone or more states; between a State and citizens of another state, between citizens of different States; between citizens of the same state claiming landsunder grants of different States, and between a State or citizens thereof, foreign states, citizens or subjects." Clause 2 provides, 'In all cases affectingambassadors, other public ministers and consuls and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all theother cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulationsas the Congress shall make." Analysing these two clauses,137the Supreme Court of America has both the original and the appellate jurisdiction.(a) Original: The original jurisdiction is limited to the following cases:(i) cases involving ambassadors, other public ministers and consuls;(ii) cases in which a state shall be a party. By way of clarification, the congress has stipulated that the original jurisdiction of the Supreme Court canbe invoked only in cases against ambassadors and other public ministers, and only in cases where, if a state is one of the parties, the other party isthe United States, a foreign State or a state of the Union. The original jurisdiction of the Supreme Court is thus based on the kind of parties to thecase rather than on its legal subject matter. The theory is that the dignity of the parties i.e., the ambassadors or the States demand that cases involvingthem should be lodged in the highest court in the land since appearance before the inferior courts may lower their dignity.In fact very few cases come to the purview of the Supreme Court in its original jurisdiction. Generally cases involving question of constitutionality orotherwise commanding extra ordinary importance are brought before the Supreme Court. In all other cases, the Supreme Court has,(b) Appellate jurisdiction, that is, it hears appeals in cases already decided either in State courts or in lower federal courts. Appeals cannot be takenin all the cases. The appeal to the Supreme Court can lie only in those cases where the highest state court:(i) has held invalid some state law which is alleged to be in violation of the federal constitution, of a law made by the congress, or of a treaty madeby the United States;(ii) has held invalid a federal law or treaty. Since 1914, the Supreme Court has been given discretionary power to review the decision of a state court,if it sees fit, even when this decision has held a state law invalid on a question of federal right. Sometimes in consents to review such decisions, moreoften it declines.Thus appeals to the Supreme Court can lie only on some legal or constitutional point. In other words, the appellate jurisdiction of the Supreme Court isbased upon the subject matter of the case. If in a case the law involved concerns the federal treaties, the appeal can be taken to the Supreme Court. Itmay be noted that appeal from the highest court goes directly to the Supreme Court. No other federal court has the138authority to entertain an appeal from the highest court of a state on any matter.No Advisory JurisdictionIt will not be out of place to point out that the Supreme Court of America, unlike the Supreme Court of India, does not perform the advisory function. Ithas refused to advise the executive on hypothetical questions. Nor does the court pass judgment upon political questions. It acts only when a law has beenviolated and the matter is raised in a specific suit.Supreme Court at workThe Supreme Court holds one regular session annually. It commences on the first Monday of October and ends about the middle of June. The Chief Justice canconvene special sessions of the court if urgently required. It conducts hearings of cases for a fortnight. It meets on Tuesday, Wednesday, Thursday andFriday. On Saturdays, justices confer among themselves and register their opinions. On Monday, judgments are delivered in public. Every fortnight of hearingsis followed by a fortnight of recess. During this period, judges study and write opinions. For a session, quorum of six judges is required. Judges arriveat decisions by a majority vote. All decisions and opinions of the Supreme Court are published in the United States Report for record and guidance of thelegal profession and general public.Role of the Supreme CourtA mere description of the jurisdiction of the Supreme Court cannot give a correct picture on the role it plays in the American system. According to Bryce,"No feature in the Government of the U.S.A. has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration,been more frequently misunderstood than the duties assigned to the Supreme Court and the functions it discharges in guarding the arc of the Constitution."(i) As a protector of Federation: Generally in a Federation the powers are divided between the federal government and the states. In a federation thereis always the possibility of disputes. According to Dr. Munro, "Without the provision of the Supreme Court, the American Constitutional system would havebecome a hydra-headed monstrosity, (there were 48 states in U.S.A. when Munro remarked this of forty-eight rival sovereign entities). It would have nevergained that strengthened regularity of operation which it possesses today."1 By working out the doctrine of Implied Powers, the Supreme Court has conferredwide139powers on the congress. The words of the Supreme Court in the case of Maryland vs. Mc Culloch, "Let the end be legitimate, let it be within the scope ofthe constitution and means which are appropriate, which are plainly adopted to that end, and which are not prohibited but consistent with the letter andspirit of the constitution are constitutional," are really historic words. It is on account of the liberal interpretation by the Supreme Court that thefederal structure devised in the eighteenth century to satisfy the requirements of thirteen states, with a small population living in pastoral-cum-agriculturalage, is equally suitable to the needs of the most industrialised country consisting of fifty states today. Without a liberal interpretation by the SupremeCourt, the U.S. federalism might have failed in the time of growing industrialisation and centralism.(ii) Saviour of the Constitution: The Supreme Court is the guardian of the constitution. It can declare null and void a law passed by the legislature orany order issued by the executive organ in the United States, if it is repugnant to the constitution. Its power of judicial review has protected the constitutionfrom being violated and has checkmated the monarchical ambitions of the President and the democratic recklessness of the congress. Hence it has been rightlyconsidered as the umpire of constitutional conflicts.(iii) Guardian of the Rights: The Supreme Court has been empowered to issue writs like habeas corpus, mandamus, certiorari and injunction for the protectionof the rights of the people. It has kept the various organs of the government within their defined fields and prevented encroachments of human rights.It has declared laws unconstitutional not only on the basis that they were beyond the jurisdiction of a particular organ but also on the ground that theywere unremarkable or unjust. It has determined the constitutionality of laws on the basis of due process of law clause of the constitution. Before 1930'sthe Supreme Court gave great protection to the right to property and declared governmental regulation of prices as taking away liberty and property withoutdue process of law. Since 1930's the court has expanded its interpretation of the due process clause for the protection of civil liberties and restrictedthe protection given to property. This indicates a trend in the beliefs of the court. As now constituted, the Court believes that men ought to be freeto the maximum extent possible. In more than a score of cases the Supreme Court has upheld the right of freedom of religion. In a case decided in 1948the court held that "Neither a State nor Federal Government can set up a church.140Neither can pass laws which aid one religion, and all religions, or prefer one religion over another." In a number of cases the court has upheld the rightsof the Negroes. In the case of Browns vs. Board of Education, Chief Justice Warren observed in 1954, "Does segregation of children in public schools simplyon the basis of race, even though physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educationalopportunities? We believe it does. To separate them from others of similar age and qualifications solely because of their race, generates a feeling ofinferiority as to their status in the community and may effect their hearts and minds in a way unlikely ever to be undone.... Separate educational facilitiesare inherently unequal." With regard to the work of the Supreme Court in the field of personal liberties, the Report of the President's Committee on CivilRights observed in 1947, "It is not too much to say that during the last ten years, the disposition of cases of this kind has been as important as anywork performed by the court As an agency of the Federal Government, it is now actively engaged in the broad effort to safeguard civil rights."(iv) Development of the Constitution: The Supreme Court has done much towards the growth of the constitution. The constitution of America is a skeletondocument comprising 7 Articles and about 7,000 words. It was framed in 1787 for a country of thirteen states having a pastoral agricultural economy. Today,America is a country of fifty states and is the most highly industrialised country of the world. It is the biggest world power. Obviously a constitutionalstructure devised for a pastoral economy could not have meted out the needs of the present day America which has landed its cosmonauts on the moon. Thenecessary adoption could not have been secured through constitutional amendments as the constitution amending procedure is extra-ordinarily rigid. TheSupreme Court has played a significant role in adapting the eighteenth century constitution to the space age needs of nuclear America. By putting a liberalinterpretation it has facilitated the growth of the constitution without the necessity of formal amendment. In the words of James M. Beck, "The SupremeCourt is not only a court of justice but, in a qualified sense, a continuous Constitutional convention. It continues the work of the convention of 1787by adopting through interpretation the greater character of government." In the words of justice Hughes "Americans are under a constitution but the constitutionis what the judges say it is."141(v) Highest court of Appeal: The Supreme Court is the final court of appeal in the United States. It can entertain appeals from the state high courts andlower federal courts. Though its appellate authority is limited as not all cases may be appealed but there is no appeal against its judgment. Its opinionon a question of law is final. It has been termed as a "super legislature" or a "third chamber." It stands above both the President and the Congress. "Unlikeacts of the congress it is immune to Presidential veto and unlike Presidential veto, it is immune to over riding by congress." In a sense it may be calledthe most autocratic political institution of America.From the above account it is thus clear mat Supreme Court is an institution of great importance in the American federal system. It has been, according toFiner, "the cement which has fixed firm the whole federal structure." Laski rightly called it as one of the most successful institutions "not surpassedby any other institution in its influence in the life of the United States."JUDICIAL REVIEWMeaning of Judicial ReviewBy judicial review we mean the power of the judiciary to determine whether a law passed by the Congress, or any law enacted by a state legislature or anyprovision in the state constitution or any other public regulation having the force of law, is in consonance with the constitution. If it is not, the courtrefuses to give effect to the statute in question. In determining the constitutionality of the legislation, the court is not concerned with the wisdom,experience or policy of legislation. In the words of chief justice Marshall, "It neither approves nor condemns any legislative policy. Its delicate anddifficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the c institution;and having done that its duty ends." Even if the Court considers the Act unwise and harmful to both public and private interests, it is its obligationto sustain the Act provided it is within the delegated power. As we know, the constitution is a general document which requires a great deal of interpretationto discover its meaning. It gives powers ro the executive and the legislature. While doing some act in pursuance of their powers they give their own interpretationto the words of the constitution. If a person thinks that the legislature has exceeded its constitutional power in enacting a law, he may challenge theconstitutionality of the law in the court. In deciding the case, the court interprets the constitution to142determine the constitutionality of the Act challenged. This power to interpret the constitution and determine the constitutionality of a statute is calledthe power of judicial review. The American constitution has accepted the principle of judicial review which has made the Supreme Court the most powerfuljudicial tribunal in the world.Judicial Review does not only apply to federal and State statutes. Its scope is wider. The constitution of the states, treaties made by the Federal Governmentand the orders issued by the Federal and State executive's authorities come within its purview. However, questions of political nature do not fall withinits jurisdiction. This has resulted in restoration of public confidence in the Supreme Court.Constitutional basis for Judicial ReviewThe American constitution does not specifically grant the power of judicial review to the Supreme Court. Some writers have challenged the court's rightto exercise this power. President Jefferson had declared that the design of the founding fathers was to establish three independent departments of governmentand to give the judiciary the right to review the acts of the congress and the President was not only the violation of the doctrines of the separationof powers and limited government, but it was also the violation of the intentions of the framers of the constitution. However, evidence records that majorityof the members of the Philadelphia convention favoured judicial review. Alexandar Hamilton intended the Supreme Court to have the power to set aside Congressionallegislation. He suggested independent judiciary as "an excellent barrier to the encroachments and oppression of the representative body." A specific provisionwas not added because they believed the power to be clearly implied in the language of Articles III and VI. Article VI Section 2 reads, "This constitution,and the laws of the United States which shall be made in pursuance thereof; and all treaties made, under the authority of the United States shall be thesupreme law of the land." Article III Section 2 reads, "The judicial power shall extend to all cases, in law and equity, arising under this constitution,the laws of the United States, and treaties made or which shall be made, under this authority."Origin of Judicial ReviewThe Supreme Court faced the issue of judicial review for the first time in the case of 'Marbury vs. Madison' which was decided in 1803. The facts of thecase were that the congress had provided in the judiciary Act of 1789 that requests for the writs of mandamus might originate in the Supreme Court. Onthe night of March 3, 1801, Marbury had been143appointed justice of peace for the District of Columbia by President Adams, whose term expired before the commission was delivered. The incoming PresidentJefferson and his Secretary of State, Madison, refused to deliver the commission to Marbury who immediately petitioned to the Supreme Court for the issueof the writ of mandamus under the judiciary act of 1789. Chief Justice Marshall, who wrote the judgment, declared that the Supreme Court had no authorityto issue the writ because the Judiciary Act of 1789 had enlarged the original jurisdiction of the Supreme Court as prescribed by the constitution, andtherefore, it was null and void. (The congress cannot enlarge the original jurisdiction of the Supreme Court which has been prescribed by the constitutionitself.)Chief Justice Marshall said that the constitution is the supreme law of the land and therefore must be paramount to any statute in conflict with it. Hebased his judgment upon the following assumptions:(i) The constitution is a written document that clearly defines and limits the powers of government;(ii) The constitution is a fundamental law and superior to ordinary legislative enactment;(iii) An act of the legislature contrary to the fundamental law is void and therefore cannot bind the courts;(iv) The judicial power together with oaths to uphold the constitution that judges take requires that the courts so declare when they believe acts of congressviolate the constitution.After this judgment, the principle of judicial review was firmly embodied in the American system of government. It is now as clearly established as thoughit had been expressly provided in the constitution.Experience with Judicial ReviewAfter the Supreme Court's decision in Marbury vs. Madison case, the power of striking down an act of Congress was not used until in the Dred Scot vs. Sanfordcase in 1857. In this case the court declared the Missouri Compromise of 1820 unconstitutional. This intensified the situation which later on erupted intothe civil war. After the civil war there was a considerable increase in the restrictive activities of the Supreme Court. Between 1865 and 1900 it handeddown some twenty-four decisions in which acts or parts of acts of congress were held unconstitutional. From 1900 to 1934 which was a period of greaterincrease in the amount of legislation, there were some forty such decisions which established barriers to the New Deal Programme. After 1937, the SupremeCourt manifested a change of mind and did not stand144in the way of social and economic legislation. Although the court continued to pass upon the constitutionality of statutes, its decisions, however, didnot arouse the controversy and indignation which its decisions had stirred during the New Deal period.The New Deal PeriodThe period of 1930's was a period of economic depression in America. Mr. Roosevelt who took over as President in March 1933 promised a 'New Deal' to steerthe country out of the economic chaos. Under his leadership the Congress passed in quick succession laws of far reaching importance. By 1935, these lawsbegan to be brought before the Supreme Court. It declared five of New Deal Statutes unconstitutional during its term beginning in October 1935. In all,it invalidated twelve New Deal measures or provisions thereof within three years of its battle with the President. The majority of the court believed thatthe New Deal measures represented bad economies and bad government. On the other hand, the New Dealers were convinced that the economic and political thinkingof the judges was obsolete and should no longer be permitted to determine whether a statute was constitutional or unconstitutional. Roosevelt was re-electedin November, 1936 and flushed with his victory, he decided to put through his New Deal programme by reorganising federal judiciary. In his message to theCongress on February 4, 1937, he made some proposals for the reorganisation of federal judiciary. The immediate target of his proposals was the aged judgesin the Supreme and lower courts. The most significant proposal was to give the President the power to appoint an additional judge for every member of thecourt who had served for ten years and who remained on the bench after reaching the age of seventy, provided the number of judges should never exceed fifteen.This proposal, it was presumed, would tend to embarrass older judges into retiring or resigning, but if they chose to stay on, it was with the knowledgethat younger judges might be appointed to "assist" and perhaps might counterbalance their conservatism. As things stood at the time, there were six judgeson the Supreme Court over seventy. Had they not retired, the President might have appointed six additional judges raising the membership of the court tothe maximum of fifteen. The addition of six young liberals to the three already on the court would have ensured enactment of the New Deal legislation.The proposal to "rejuvenate" the Supreme Court was defeated in the congress in its entirety. But the President won in another way. Vacancies soon occurredby resignation, retirement or death and145younger men were appointed. By the end of 1937, the liberals were clearly in the majority, and by September, 1942, only two of the men who constituted theSupreme Court during Roosevelt's first term remained. The new appointees held views acceptable to the President. Even before any changes were made in thepersonnel of the court, it manifested a change of mind by reversing its previous attitude towards New Deal statutes and by upholding the Social SecurityAct and the Labour Railway Act.In Maryland v. McCulloch the Supreme Court declared the state law according to which stamp duty was imposed on the circulating notes of the bank establishedin Maryland as unconstitutional. The Court assented that congress possessed implied power to establish bank in any part of the country and any slate lawimposing any restriction on it was illegal. Mc Culloch, the Bank Manager was justified in not paying the duty. This strengthened the centre at the costof the states.Criticism of the Power of Judicial ReviewAlthough the pre-eminence of the Supreme Court in the American Constitutional system has been generally accepted, criticism has been frequently made ofits power of judicial review. The following points of criticism may be noted in this respect(i) It has become non-elective super-legislature: The first point of criticism against the power of judicial review is that it has made the Supreme Courta non-elective super legislature; Laski calls it a 'third chamber.' The court while deciding the cases acts as a quasi-political body and determines notonly the constitutionality but the propriety and justness of the laws. Many a law has been declared unconstitutional because, according to the court, theywere not fair, just and reasonable. And what is just and fair is a political and not a legal question because the concept of justness and fairness is affectedby the 'due process of law'. The judges, "can hardly fail to be swayed consciously or unconsciously by their social philosophies and general outlook onaffairs." Between 1888 and 1937 the court became "an aristocracy of the robe and twisted the due process clause into a moat around all forms of privateproperty." It censured all socialistic legislation, thereby protecting the right to private property and economic freedom. It did not even hesitate toveto the popular measures like rail road pension act and a state minimum wage law. In one case the court regarded income tax as a sheer assault on capitaland contended that "it will be but the stepping stone to others, large and more sweeping, till our political contests will become a war of the poor againstthe rich, a war constantly growing in146intensity and bitterness." When the Supreme Court invalidates a law by imposing upon the nation its own interpretation of what the social and economic orderought to be, it certainly assumed to itself the role of a super-legislature. In Polter's words, "to strike down a national law is to drop a pebble in thelegislative pool creating a disturbance that ripples out from the point of contact across a considerable surface of potential legislation.'2 Accordingto Jackson, its decisions "prick out the drift of national policy." In the Atkins case Mr. Justice Sutherland "defined the role of the court in a way thata radical critic could hardly have bettered." Referring to this case, Mr. Baudin remarked, "the announcement that the court had constituted itself in asuper legislature is perhaps plainer ihan in any other case." According to C.J. Hughes "We are under constitution but the constitution is what the judgessay it is."(ii) One man tyranny: The decisions of the court have taken place by majority vote. This resulted in one man tyranny. The critics have pointed out thatthe laws have been declared unconstitutional by 'five to four decisions', i.e., decisions in which five of the judges hold it to be invalid. In other words,it means that the opinion of a single judge may set aside the action of the duly elected congress and the President. The critics term it as "one man tyrannyand as such an undemocratic arrangement." The Court is described as "archaic" and aristocratic political institution as five out of Nine Judges can playhavoc.(iii) It has clogged social progress: The critics allege that judicial review has often clogged the wheels of progress and obstructed the enactment of socialand economic reforms. Presidents Jefferson, Jackson, Lincoln as well as Roosevelt have publicly condemned the court on this score. The excessive dependenceon legal formulae shown by the judges has seriously retarded social progress. For the Supreme Court, Laski writes, "due process has meant not a road buta gate, and the thing it barred was an attempt to transform political democracy in the United States into social democracy." The court once called incometax as a sheer assault on capital. For more than twenty years the judges thwarted congress in enacting child labour legislation. They prevented statesfrom establishing minimum wage laws of Roosevelt's New Deal programme and declared many New Deal measures as unconstitutional. The Supreme Court, it issaid, is least responsive to public opinion and is never a ready contemporary institution.(iv) Judges act as politicians: The history of the Supreme Court reveals that judges act as politicians. Chief Justice Hughes and his147associates played a vital role in the defeat of Roosevelt's effort to pack the Supreme Court with his own men. When judges take to politics, prestige ofjudiciary is undermined and it ceases to play the role of custodian of the constitution. Hence Theodore Roosevelt had advocated that the constitution oughtto be amended to permit the Congress to reenact by 2/3 majority any law that might have been invalidated by the Supreme Court.Defence of Judicial ReviewThe above points of criticism are, however, mere exaggerations. A second thought on the whole issue will convince that the power of judicial review hasnot been abused by the Supreme Court It is not correct to term "judicial review as judicial veto." Moreover, the effect of judicial review has not beenvery significant. In a period of about 200 years or so, the Supreme Court has invalidated only about a hundred laws out of about seventy thousand lawspassed by Congress. In most of the nullified laws, only a part of the law concerned was declared unconstitutional. This shows that the "incidence of judicialreview of congressional legislation has been extremely slight." President Truman used veto on the Congress laws more than the Court did in its entire history,i.e., 226 times; Roosevelt used veto 631 times and Cleaveland 583 times. But for judicial review, writes Munro, "The American Constitutional system wouldhave become a hydra-headed monstrosity of forty-eight (now fifty) rival sovereign states." In a country having separation of powers and a political systemin which the executive is independent of legislative control and the legislature cannot be dissolved earlier than the expiry of its term, the power ofjudicial review constitutes the ultimate safeguard of individual liberty. In Great Britain the need for judicial review has not been felt because in thatcountry the executive is responsible to the legislature and in case of a difference between the two the will of the legislature prevails. Secondly, GreatBritain is not a federation of states and hence there is no rigid division of powers between the states and centre. The United States has a written Constitutionwherein the citizens have been guaranteed some fundamental rights and the states have been given separate and independent powers. Hence the need for judicialreview in the United States is greater than in Great Britain. In the words of Chief Justice Warren "....we are oath bound to defend the Constitution. Theobligation requires that constitutional enactments be judged by the standards of the constitution. The provisions of the constitution are not time wornadages or hallow shibboleths. They are living principles that authorise and limit government power in our Nation."148As regards the allegation of 'one man tyranny' there have been only a handful of cases in which laws of the Congress have been declared unconstitutionalby a close veto of the justices, i.e., by the so-called 'five to four' decisions, and of these even fewer were of any substantial importance. Moreover,it is a misnomer to say that in such cases the laws are declared unconstitutional by the action of a single judge. Munro writes, "It is true, no doubt,that a five-to-four decision could not be made without the vote of the fifth judges; but neither could it be made without the votes of the other four."The Privy Purses Bill was rejected by the Rajya Sabha of the Indian Parliament by one vote, was this one man tyranny? Manifestly not, for it were othervotes which made this one vote more than one third majority vote of the members present and voting. Moreover, whatever proposal we make to replace themajority rule, someone judge would still hold the balance.It has been alleged that the power of judicial review has been used to clog the wheels of social progress. This is far from truth. If we probe into thefacts, we discover that the Supreme Court has from time to time upheld progressive measures. It has not always been conservative in its attitude. Had itbeen so, the Congress would not have rejected the proposal of President Roosevelt to 'pack' the Supreme Court with new and younger members of the SupremeCourt who would not have obstructed the economic development of the country. The United States is today the most highly industrialised country in the world.The Supreme Court has always continued to act as the protector of those rights which are guaranteed to individuals and minorities by the constitution.It has given decisions aiming at improving the status of the Negroes in the country. The decision in Brown vs. Board of Education is a great landmark,worthmentioning in this connection. In November, 1969 it ordered immediate desegregation of public schools in Mississippi. It certainly aimed at removingsocial barrier between the whites and the Negroes. Again on June 28, 1978 in Bakke's case, judgment of the court left the door open to affirmative actionwhich sought to mitigate the effect of social discrimination.It may, therefore, be said that the abuses of judicial review have been rather exaggerated. Judicial review is no doubt a great power but it is neitherso absolute nor so irresponsible as it seemed in its hey day. Whatever dissatisfaction may arise over the court's exercise of its power of judicial review,there is no workable substitute for it. None of the proposals to reform the Supreme Court has evoked popular enthusiasm. Americans have never been willingto put full trust in the majority of the Congress. They will never be prepared to abolish the power of judicial review. They remain more apprehensive ofunchecked149legislative and popular majorities than of an independent and strong judiciary. In fact, they are appreciative of the judicial interventions checkmatingthe brute majority of the legislature or the arbitraric acts of the President. In the words of Finer, "Such a court with such functions is the most original,the most distinctive American contribution to political science. It is the cement which has fixed firm the whole federal structure." Henry Commager describesUSA constitution as a "dynamic not a straight Jacket; hence it requires interpretation in the light of contemporary values and needs and not remain confinedto narrow perception of original intention of the founders of the constitution.INFERIOR FEDERAL COURTSSupreme Court stands at the apex of the federal and judicial hierarchy. Next below to it are the Federal Courts of Appeals created in 1891 to facilitatethe disposition of cases and ease the burden of the Supreme Court Below these appellate courts are the district courts which are the federal courts oforiginal jurisdiction.Federal Courts of AppealsThere are eleven federal courts of appeals, known before 1948 as the circuit courts of appeal one in each of the judicial circuits in which the territoryof the United States is divided and one in the district of Columbia. The number of judges of the federal courts varies from 3 to 6, but usually federalcourt is held with three judges participating. There was a time when the justices of the Supreme Court 'rode circuit' that is, were assigned to judicialcircuits and held circuit court throughout the country in addition to sitting as members of the Supreme Court, though now time prevents them from 'ridingcircuit'. Each of the ten circuits is assigned to a member of the Supreme Court. The Chief Justice presides over a conference of the senior federal courtjudges from the various circuits which is held in Washington at least once a year. The purpose of this conference is to survey the work of the federaljudicial system and to make recommendations as to how the work might be done with more despatch. The conference also helps in creating sense of unity amongthe various federal courts.The judges of the federal courts are appointed by the President with the advice and consent of the Senate for terms of good behaviour with the privilegeof retiring on full pay at seventy years of age under certain circumstances. Their positions carry somewhat more prestige than those of the district judges.The primary function of the federal courts of appeals is to hear cases appealed from the lower courts. In many cases, where no issue150relating to the constitutionality of a law is raised, the federal court of appeal has final authority. This relieves the Supreme Court of some of the burdenof appellate work. When a federal court of appeal declares a state law unconstitutional, an appeal may be carried on to the Supreme Court. In other cases,the right of appeal depends upon the willingness of the Supreme Court to review the issue. Circuit judges do not work with juries.District CourtsThe district courts are the federal courts of original jurisdiction. The United States is divided into nearly one hundred judicial districts. Each stateconstitutes at least one district, while the more populous states have two, three or even eight within their boundaries. Some districts are sub-dividedinto divisions. In each district, there is at least one judge though in many cases there are several judges for a single district. Where there is morethan one judge in a district, each holds court simultaneously. They do not sit together. Judges can also be shifted temporarily from one district to another,whenever such action becomes desirable through pressure of work.The district judges are also appointed by the President for life, or at any rate, for good behaviour. There have been occasional removal for misbehavioureither by impeachment or by demands backed by the threat of impeachment, but such actions have been rare. The appointments to the district judges are subjectto the senatorial approval, and herein the rule of 'senatorial courtesy' plays its full part. District judgeships are regarded as the political spoilsof the senators from the respective districts. In order to secure senatorial approval, the President must make sure that his nominee has the support ofat least one of the senators from the state in which the district is located if the senators are members of the President's own party. The district judgesexcept for those assigned to the district of Columbia, must reside in the district or one of the districts, for which they are appointed. The court isheld at regular intervals in various cities within each district.Most cases and controversies start in district courts. Their's is chiefly original jurisdiction, no cases come to them on appeals. Nearly all the civilcases arising under federal laws and all those accused of committing federal crimes are tried in the district courts. The district court is the only federalcourt in which a jury is used. Appeals against the decision of the district courts lie to the circuit courts. In some cases, the appeals may also be takendirectly to the Supreme Court.Special Federal CourtsThe courts described above, i.e., the Supreme Court, the circuit courts of appeals and the district courts have been categorised as constitutional151courts. These courts have been established under Article III to exercise "the judicial power of the United States." In addition to these courts, there arecertain special courts which are commonly called 'legislative' courts because they have been created by the Congress under some specific grant of legislativepower as provided in Article II of the constitution. They are in part judicial and in part administrative courts. Prominent among the special courts arethe following:Customs CourtThis court was established in 1890. It has nine judges appointed by the President with Senate's approval. They serve during good behaviour. The court'soffice is located in the city of New York where most of its business is conducted although sessions are held in other cities as well. The function of thecourt is to decide controversies as to the valuations and duties arising under the tariff.Court of Customs and Patent AppealsThis court was created in 1910. It consists of five members appointed by the President with Senate's approval for terms of good behaviour. It is in continuoussession, 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 courtand the United States Patent Office.Territorial CourtsThese are set up by the Congress in the American territories. Those with greater authority are located in Puerto Rico, the Virgin Islands, and the PanamaCanal Lane. These courts have jurisdiction over all matters, local as well as federal which Congress may assign directly or indirectly through the territorialgovernment.Tax CourtIt was established in 1942. It is a sixteen member court. It hears disputes arising from decisions of the federal tax-collection agencies.Court of Military AppealsIt was created in 1950. It consists of three civilian judges appointed by the President with Senate's approval. It functions in Washington. It is an appellatecourt and hears appeals against the decision of the court-martials. It has no original jurisdiction.References1. Munro W.B., op. cited, p. 571.2. Polter, A.M., American Government and Politics, p. 260.15210 POLITICAL PARTIES"No country has ever been able to maintain, over considerable period of time, any form of democratic government without the aid of political parties. Andit is safe to prophesy that no country ever will."—W.B. MunroPolitical parties are indispensable to the working of democratic governments. They constitute the backbone of democracy. They provide leadership and directionwithout which the "power of the people" would remain ineffective. Despite the fact that parties and their activities are subject to much criticism andabuse they are essential to the operation of democratic government. Without them, as MacIver says, "There can be no regular resort to the constitutionaldevice of parliamentary elections nor of course any of the recognised institutions by means of which a party seeks to gain or to maintain power." In theAmerican political system, political parties play a great role. America is a country where elections take place frequently. The President and Vice-Presidentof America are elected every four years. Every other year, there is an election for the House of Representatives and one third of the seats in the Senate.In the states the Governors and Lieutenant Governors are elected after every two or four years. Then, there are elections to the State Legislatures andlocal councils. In most states, a number of public officers are also elected. Thus, America has numerous elections. Naturally, therefore, the politicalparties have come to play an important role in the functioning of the political system of that country.Growth of American PartiesThe history of political parties in America goes back to the pre-natal period of the constitution. Local cliques in towns, counties and states were eventhen operating to set the names of candidates. When the153constitution was on its way to the states for ratification, its advocates, the Federalists, began planning to elect the maximum number of men of their choiceto the slate ratifying conventions in competition with the anti-Federalists. Thus before the constitution was put into operation the different politicalgroups had been actively engaged in organising public campaigns for getting their candidates elected. At the Philadelphia convention itself, the delegateswere divided on party lines. The majority group led by Hamilton wanted to create a strong union by giving large powers to the federal government. The minoritygroup led by Jefferson championed the cause of states' rights. President Washington did not let this spirit of party grow. To give "the fledgling government"a sense of unity and to rise above faction and party he included both Hamilton and Jefferson in his cabinet. But Jefferson resigned in Washington's secondadministration. Washington deplored the emerging state of affairs and in his farewell address, he warned the nation "against the baneful effects of thespirit of party generally." He said, 'There is an opinion that parties in free countries are useful checks upon the administration of the government, andserve to keep alive the spirit of liberty. This within certain limits is probably true and in governments of a monarchical cast, patriotism may look withindulgence if not with favour, upon the spirit of party. But in those of the popular character, in governments, purely elective, it is a spirit not tobe encouraged - a fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warning, it should consume."But Washington, while warning the nation against the baneful effects of the spirit of party, himself was 'the leader of the Federalist Party'. So it maybe said that Washington's warning was not against the formation of political organisations to persuade the people to vote for particular candidates holdingparticular points of view but it was directed against the uncompromising factional spirit because when Washington wrote his farewell address, factionalbitterness was so intense as to threaten the operation of political fabric. In any event, the advice of President Washington was not heeded. The groupspirit which underlay during his tenure came to the surface when he retired to Mount Vernon.John Adams who became the President, could not check the breach between Federalists and anti-Federalists. Further. Hamilton's discussions with Adams weakenedthe Federalists leading to their defeat at the Presidency election of 1800. Jefferson was elected the President. The nation had been clearly divided intopolitical parties. The154agricultural population of the country voted for Jefferson, the industrial and the trading interests voted for Adams. The Federalists led by Adams paidmore consideration to the interests of the moneyed and industrial interests and wanted to make the central government stronger. The anti-Federalists ledby Jefferson were considered to be a party of the farmers and frontiersmen. The Federalists placed more emphasis upon order than upon liberty, the anti-Federalistslaid stress upon the natural rights of men.The Federalists' popularity continued to dwindle. At the election of 1820 they placed no candidate before the people. The anti-Federalists now known asRepublicans were in complete control. The Federalist party went out of existence. Soon there were dissensions among the Republicans (anti-Federalists).Henry Clay, John C. Calhoun, William Crawford, Andrew Jackson, Dewitt Clinton and John Quincy Adams each had his following. Party politics gave way topersonal politics. At the election of 1824 no candidate secured the requisite majority and the House of Representatives elected John Quincy Adams. JohnAdams and Andrew Jackson now became the two rival leaders and the erstwhile personal factions rallied behind these two leaders. One group led by AndrewJackson was called the Democratic Republicans, the other led by Adams was known as the National Republicans (later Whigs).The election of 1828, was fought by two parties, Democratic Republicans and National Republicans. Andrew Jackson, the candidate of the Democratic Republicans,won the election. Jackson was a strong President. His policies were forceful. He gave United States its first new deal. The party division became moresolid. In 1832 Jackson was re-elected. The next election of 1836 was also won by the Democratic Party. In 1834 a Whig Party was organised by a combinationof the National Republicans and the dissident Democrats who had been alienated by certain acts of President Jackson. In the election of 1840 the Whig Presidentwas elected, but he soon died after taking office. The Whig Party lost the 1844 election to the Democrats but in 1848 election its candidate was againelected. In 1852 the Democrats returned to power and remained in office till 1860.The election of 1860 was fought on the issue of slavery. The Republican Party (old Whig Party) included abolition of slavery in its programme and got Lincolnelected as the first Republican President. Soon after the election of Abraham Lincoln, the southern states declared their secession from the Union. PresidentLincoln fought the civil war successfully with the result that when the war ended, it left the155Republican Party strongly entranced. The party remained in power for twenty-four years. The 1884 election was won by the Democratic Party but it lost thenext two elections. The Democratic Party gained Presidency in 1892 but lost it in the next election and did not regain it until 1912 when Woodrow Wilsonwas elected for his first two terms. In 1914 the first World War commenced. For the first two years America kept itself out of the war. In 1916 there wasPresidential election and the American people in appreciation of Wilson's efforts to keep the country out of war re-elected him but no sooner he took uponthe oath, circumstances forced America into the war. At the end of the war President Wilson negotiated the Treaty of Versailles which included a covenantfor the League of Nations. The Senate did not approve the treaty which became an issue at the Presidential election of 1920. The Republican Party whichwas opposed to America joining the League won the election and Hardinge became the President but he died before the end of his term and was succeeded byVice-President Colvin Coolidge. The Republican Party remained in the White House until 1932 when Franklin D. Roosevelt won the Presidency from the Democraticplatform. Roosevelt remained in power upto 1945 having been re-elected fourth time. Roosevelt helped the Democratic Party gather a large strength. Hishold upon the party was so strong that he got four presidential nominations from the party thus breaking the tradition. Roosevelt died in 1945 and Vice-PresidentTruman belonging to the Roosevelt's party stepped in the White House. At the elections of 1948, Truman was given a full four year term. President Trumanfollowed the policy of post-war militarisation starting thereby a cold war against the communist bloc. In 1952, the Republicans under Eisenhower came topower. Eisenhower was re-elected in 1956. In 1960 the Democratic party again captured the Presidency and J.F. Kennedy became the President. The party remainedin power until 1968 when Nixon, a Republican defeated the Democratic candidate. In 1976 Democratic Party with Jimmy Carter as the President came to power.Again in 1980 election Reagan, a Republican was elected defeating Carter who contested for the second time. In 1988 George Bush a Republican was electedas the President. In 1992 elections, the Republicans lost to the Democrats and Clinton entered the White House which he still occupies (July 1998).In November 1994 elections the Republican Party swept the polls, both in the House of Representatives and the Senate. In the Senate the Republicans gained8 seats taking their tally to 52 as against the Democrat Party's 48. In the outgoing Senate the Democratic Party's156strength was 56 and the Republican Party's 44. In the House of Representatives the Republicans captured 230 as against the Democratic Party's 204 makinga net gain of 51 seats. It had 178 in the last House as against the Democratic Party's 256. (There was one Independent.) Leon Panetta White House Chiefof Staff commented, "Obviously we are very disappointed with the trend of the voter... it reflects the fact that the American people wanted to bring abouta change in the way Washington does business...." The Republicans still hold the sway in both the Houses.The foregoing paragraphs have sketched the history of political parties in the United States. From the sketch it is clear that the political power in Americahas been shared by two parties. The Presidency has gone to either of them. A third party never got the chance to enter the White House though several timesthird parties did put up their candidates. As said, "Third parties in American national politics have played the role of innovators of policy not of holdersof office." The two major parties today are the Democratic Party and Republican Party. The Democratic Party took form during Washington's administrationunder the leadership of Jefferson. It passed under various names, including anti-Federalist, Republican, Democratic Republican and Democratic. The partyhas demonstrated enormous ability to survive under difficult circumstances. The Republican Party is the successor of the Federalist Party, led by Hamilton.It passed under the names of Federalist, National Republican, Whig and finally the Republican.Minor PartiesBesides these two major political parties, the minor parties which have appeared on the American political scene are the Prohibition party, the Socialistparty, and the Communist party. The Prohibition party held its first national convention in 1872. Its fundamental principle was opposition to the manufacture,importation and sale of intoxicating liquors. Until 1920 its main programme was to secure the enactment of prohibition; then for a dozen years it devoteditself to the task of getting the eighteenth amendment enforced. In 1933, however, the amendment was replaced and the Prohibition party went into the background.The Socialist Party was formed early in the present century by a partial union of the two earlier organisations, Socialist Labour party and Socialist Democraticparty. The party has got some supporters in the urban areas. It is well organised and has a clear programme which includes public ownership of railroads,telegraphs, and telephones; state ownership of mines, forests and other natural resources; the socialisation of industry; the provision of work for theunemployed; and157the expansion of social security benefits. Prominent among the political demands are abolition of the Senate, termination of the power of judicial review,election of federal judges, and introduction of initiative and referendum on a nation-wide scale.The Communist party represents the most extreme left wing among political groups. It advocates a Marxist pogramme and is a well organised party. But ithas made little headway on account of the strong anti-communist feelings in America.There is no regular Labour party in the United States. However it does not mean that there is no organisation to look after the interests of the labour.The American Federation of Labour, the Congress of Industrial Organisations and the Railroad Brotherhood have a large number of voters. But these are notpolitical parties in the sense that they put up their own candidates. At the time of elections, their voters cast votes for different candidates thoughsometimes either of them takes a decision to exercise vote for one of the major parties.PARTY ORGANISATIONLoose StructureA political party must be effectively organised for effective operation. As an army it must have discipline. The Democratic and Republican parties in Americaare unlike British political parties loosely organised. Each of the major parties claims to represent all people and all points of view in the country.Consequently, there are no rigid ideological differences between the two parties nor they are as unified as the parties in Great Britain. Laski aptly termedAmerican political parties as 'federations of interests.' Party discipline, therefore, cannot be rigid. The people without changing their party labelsvote with the rival party. There is often cross-voting in the Congress, the members of the Republican party voting with the members of the Democratic partyand vice versa. Since defeat of a bill in the Congress does not bring the downfall of the cabinet, therefore, cross-voting and floor crossing does nothave much political effect. Moreover, the national structure of a party does not exercise much control over the units below. The national committees donot dictate to the state committees and the state committees do not dictate to the county and city committees. In the words of Ogg and Ray "There is noflow of authority either up or down the scale, no genuine integration."The National CommitteeAt the top of the party organisation stands the National Committee, In the Democratic party, it is composed of one man and one woman from158each state territory. The members most commonly are chosen by state delegations to national party conventions, but in some states they are elected by stateconvention or committee or direct primaries. Thus the members of the Democratic national committee are not uniformly elected from all the states. Sincetwo members are sent from each state therefore a national party committee consists of about over a hundred members.The national committee wields great authority but in actual practice its work is confined to presidential election. Thus most of its work is confined tosix months immediately before a presidential election. Firstly, the national committees fix the time and choose the place for holding their national conventions.They issue the calls for the election of the delegates and arrange all the other preliminaries. Secondly, they plan the election campaign and elect thedifferent subcommittees to take charge of different branches of the work. Then they prepare the campaign literature, hire the speakers, arrange the meetings,raise the campaign funds, organise the canvassing and make arrangements for bringing out the voter on the polling day. Once the presidential election isover, the national committee's work is finished until the next election comes around.To direct the work of the national committee and look after all the matters during the presidential campaign, a Chairman is by convention selected by thepresidential nominee and formally elected by the committee. He need not be one of the committee members. Sometimes he is imposed on the committee withoutits being consulted. The chairman is an important person because he is the personal choice of the party's candidate for the presidency. Usually he is theman who manages his fight for the nomination. He is a factor of great importance in determining the party's failure or success at a presidential election.He decides how and where the campaign funds shall be spent and plans the election strategy selecting the weak spots in the fortifications of his adversaryand bolstering up the weak places in his own. His job calls for a super-politician. If his party wins the presidency, he gets an influential voice in thedistribution of patronage and he himself also is given an important office. Sometimes he is made a member of the cabinet.Each national committee maintains a number of sub-committees or auxiliary committees. Among these, the Executive Committee is the most important. The othercommittees are finance committee, publicity committee, speaker's bureau and organisation committee. Various other groups are also constituted to do a lotof work. All these159committees and groups function under the direct supervision of the chairman. The Secretary and treasurer also are the important party officers of the nationallevel. The Secretary holds the charge of the party's national headquarters and supervises the vast amount of correspondence besides handling varied othercampaign activities. The post of the treasurer is also important. Upon him rests the chief responsibility for raising the millions which are necessaryto run the election campaign.Congressional Campaign CommitteeThe national committee looks to the election of the President and the Vice-President. To direct the campaign on behalf of the party aspirants for the nationallegislative seats, each party maintains a Senatorial campaign committee. The Congressional campaign committee is composed of one representative from eachstate chosen for two years by the party caucuses in the House. The senatorial campaign committee consists of seven members chosen for two years by theparty caucuses within the Senate.The Committee functions chiefly during campaigns, trying to maintain and increase the seats held by their respective parties in the Congress. They compilethe voting records of sitting members, analyse political possibilities in the various states and districts, and in other way prepare for Congressionalelections. For finances, they mainly rely on the national committee.State Central CommitteeThe party organisation at the State level comprises primarily a State Central Committee and a Chairman. The committee consists of committee men who arechosen directly or indirectly by the party voters. The choice is usually made either by committees or by districts which vary from state to state. Thestate committees generally consist of local party leaders.In general, the function of a State Central Committee is to see that the local party organisations are kept alive and attend to such matters as the registrationof the party voters. It also has a voice in the distribution of patronage, that is, appointments and other favours. When the time for election in the statedraws near, the State Central Committee makes the party's campaign plans, determines when and where the party convention shall be held, and how funds shallbe raised. During the campaign the committees serve as a general board of strategy, arranging for the chief speakers; soliciting contributions, apportioningthe160available money for expenses, preparing and issuing the campaign literature.There is a Chairman of the State Central Committee who is nominally the head of its party organisation in the state. Sometimes he may be the real leader,but more often he is largely a figure-head. The Secretary of the state committee, is usually a paid official. Likewise, there is a treasurer. The Chairmanis elected by the State Central Committee. In reality, however, the choice is made by the party nominee for Governor or by a state boss.County CommitteeThere are over 3,000 counties in America and in all of them one or both the major parties maintain their county committees. The county committee coordinatesthe work of all lesser bodies, acts on matters affecting county government and deals in important matters with state central committees. There is a chairmanof the county committee and if his party controls the local bodies, he has much patronage.There are also a large number of district party organisations standing between the state and local levels. They are set up in state senatorial, state representative,congressional, and state judicial districts. Their position in the party structure differs considerably from state to state.Local OrganisationThe precinct or polling district, is the basic unit in party organisation. Its size is determined by population, density and the number of voters. Thereare about 1,30,000 precincts in the country. Each precinct has between one and five hundred voters. The Chairman of the party precinct unit is responsiblefor maintaining party's direct contacts with voters. He looks to their difficulties and provides services so that they may vote for the party on the electionday.In an urban area a ward committee is usually the next level of the party organisation. A ward is an election district for city council men. The ward committeecoordinates work of precinct units and deals with local political problems.Above the ward committee there is the city committee which supervises the ward and precinct levels and attends to municipal problems.In the rural areas there are village or township committees corresponding to the city committees in the urban areas. They coordinate the work of the ruralprecincts and plan party activities in relation to rural local government.161Thus the party organisation in the United States forms a huge pyramid with the national chairman at its apex and the thousands of precinct workers at itsbase.Direct PrimaryThe Direct primary plays an important part in the operation of the American political system. There are a number of elective offices in America. As remarkedearlier America has the greatest number of elections than any other country. At the national, state, county, municipal and other levels a large numberof offices are elected offices. The candidates for these offices were nominated in the early years by what has been termed caucuses. The community leadersof a party meet in a closed session and decide what names the party would propose as candidates for office at the ensuing elections. The pattern of caucusdiffered from state to state. At the state and national levels the legislative caucus, i.e., members of the party in the state and national legislaturesnominated the candidates for state and national elections respectively.The caucus as a nominating device gave birth to its evils. Besides being called undemocratic the 'caucus' was charged of corruption, intrigue, and bossism.It tended to perpetuate the power of entrenched political cliques. The process was denounced as "king caucus". The resentment against the caucus systemgave rise to the party convention system towards the first third of the nineteenth century.The adoption of 'convention' in place of 'caucus' was hailed as a victory for democracy. A local party convention for nomination of the candidates for municipalor county elections consisted of all members of the party who cared to attend. But at state and national levels, where full attendance was not possible,it consisted of party representatives from the various localities. It was hoped that the convention method of nominating candidates would transform generalelections into competitions between popularly chosen candidates rather than between the candidates of self perpetuating political bosses. But the peoplewere frustrated in their hopes. The convention system also proved prone to corruption and hardly more democratic than the caucus system. The control ofconventions fell into the hands of political machines constructed and operated by unscrupulous bosses for the advantage of a self-appointed group. By thebeginning of the present century, the convention system lost the ground and gradually gave way to the direct primary. In all the fifty states the conventionis either supplemented by the direct primary or has been entirely replaced by the latter.162Connecticut provided for it in 1955. Under the direct primary system, candidates are usually required to secure the signatures of a small number of voterswhich bring their names on the primary ballot paper. On the primary election day, the voters of each political party determine which of the various candidateslisted on the ballot paper will stand at the final elections as the authorised party candidate. Most of the states use the 'closed primary', which meansthat each voter may participate only in the nomination of candidates for the party with which he is registered. In the "open primary" used in eight states,the voters are free to vote in the primary of any party without the need of being registered with that party. There are also presidential primaries whochoose the delegates to the national party convention which finally nominates the party candidate.The direct primary came into use as a nominating device to enable party members to participate in the process of choosing party candidates without contactwith or frustration by corrupt party bosses. The state legislatures have enacted many rules for safeguarding the operations of primary elections. But whilethe direct primary with legislative safeguards did eliminate a considerable amount of corruption in the making of nominations and did widen the citizenparticipation in the nominating process, it has not, however, solved all the problems. Abuses crept in and the control of nominations passed on into thehands of professional politicians. The primary has not succeeded to secure the able candidates for election. The clever politicians manipulate the primariesand succeed in managing the votes through fraud, force and intimidation. The primary system has also increased the expense which every candidate must incur.Voters in large numbers do not go to the polls on their own initiative, they have to be stimulated by a publicity campaign. Moreover, the primary has alsonot minimised the evil of bossism. As remarked by Munro, "The voice of the direct primary is the voice of the people but the hand is too often the handof the politicians."1 In America also as in India, there is not enough politics by the right people.PARTY FINANCESMoney is of key importance in election. A vast amount is needed to reach the electorate. The direct primary has doubled the expenditure. Though no reliablefigures are available on total campaign cost incurred by a party, yet the amount spent usually runs into several million dollars. Wherefrom all this moneycomes? Part of it, but only a small163part, comes from the contributions of party members and party officials and the rich party candidates. By and large money comes from those individuals,groups and special interests who have a stake in the fortunes of a party. The corporations are forbidden by federal law and by the laws of thirty-six statesto make campaign contributions. Therefore, gifts from corporate sources are made by officers of the concerns, who may be compensated through bonuses orstock options.In recent years, laws have been passed by state and federal governments to prohibit the use of corrupt practices in elections. Nearly all states providelimits for the amount to be spent by or on behalf of individual candidates. In some cases, a ceiling is provided for the total expenditure to be incurredby state committees. The Hatch Act and civil service rules prevent forced contributions from Federal officers and from state and local employees who engagein federally aided work. The Hatch Act also provides that no individual may contribute more than 5,000 dollars to a political committee. It also prohibitsany party committee to spend more than 3 million dollars in one campaign. Under the Taft-Haretley Act, the trade unions have been forbidden to contributeto political objectives and to spend union funds on them.It need not be said that the prohibitions on sources of contributions are evaded by making indirect contributions. Many of the provisions of the corruptpractices laws, federal and state, are disregarded and evaded. As a matter of fact, these laws are ill-suited to present day conditions. The maximum limitson campaign expenditures are unrealistic and invite evasion. Ceilings on contributions are unworkable. The various laws, in short, have not succeeded inrooting out the role of money in elections. Should not then all limitations on amounts of money that can be expended, be repealed, so that the candidatesand parties may at least honestly file their campaign returns?PARTY PROGRAMMESLord Bryce after a deep study of the American political party system maintained that "the great parties were like two bottles. Each bore a label denotingthe kind of liquor it contained, but both were empty." In fact there is little to distinguish between the political and economic policies of the two parties.There are no fundamental issues on which they may be said to be clearly divided. The lines of distinction are blurred. It is impossible to tell why a particularindividual maintains loyalty to one party rather than to the other. In the words of Finer, "America has only one party, Republican-cum-Democratic, divided164into nearly equal halves by habits and the contest for office; the Republican being one half and the Democratic being the other half of the party." Theelection platforms of the two parties differ more in phraseology rather than in ideology. According to Hyman, "The idea of a pure conservative party anda pure liberal party in America has the same air of unreality as a plan to have a mountain range without valleys or a river without banks. Of themselves,mountains imply valleys and rivers imply banks. And the same is true of our party life. So long as we do not want a welter of one-interest of our ideologicalparties, by the very nature of our diversity, each party will and must have a mixed character. In particular must this be true under our federal arrangementwhere the legislative impulse is designed to come from below, and hot from above as in England."Thus the writers have pointed out the absence of doctrinal and class rigidities of the European type in the American party system. It is difficult to statethe fundamental differences between the Democratic and Republican parties. In the early days, the Federalists (forerunners of the Republican party) underHamilton's leadership favoured centralised federation while the Democrats under Jefferson stood for decentralisation and states rights. In the economicmatters, the Federalists, Whig-Republican party followed the policy of mercantilism and advocated high tariffs. The Democrats favoured laissez faire orthe abolition of government control over business and advocated low tariffs. In the international field, the Federalists aimed at the opening and protectionof overseas markets, the Democrats advocating an isolationist foreign policy. The Federalists drew their membership from the industrial, commercial andfinancial interests of the Middle States and New England whereas the backbone of Democrats was the agricultural class of the South and rural North.Then the parties became divided on the slavery issue. The Democrats represented the interests of the farmers and planters and hence favoured the continuationof slavery while the Republicans represented the industrial classes and so they sought its abolition. The Democratic party had its influence in the Southwhereas the Republican party drew its strength from the North. The Republican party was known primarily as a northern party. With a few exceptions, Southernstates always voted for Democratic candidates. The Republican Party has its strongholds in Rhode Island, Northern Great Britain and Massachusetts.But the twentieth century changed the complex of the American society. Industry and trade have overshadowed agriculture and the165dividing line between them is no longer an issue. The question of federation versus states is no longer a valid question. American federation is a strongfederation. America is a highly industrialised nation with a powerful voice in the world affairs. The under-developed nations seek its help and nuclearumbrella. The majority of the United Nations members are aligned with America. America influences UN decisions to a great extent.All this has brought about a change in the complex of the political parties. The lines which divided them earlier have now become blurred. As a result,it is not possible to speak of the Democrats as the party of agriculture and of the Republicans as the party of industry and finance. The parties now cutacross all social groups, penetrate all territorial areas and seek the support of all economic groups. Both the parties promise all things to all men.Laski says, "It is difficult to find criteria by which to lay down permanent ideas of Democrats which are permanently in contrast with the permanent ideasof Republicans."2In the economic field, both parties uphold capitalism and free enterprise and are equally opposed to socialism. Both have reconciled to a certain degreeof governmental regulation of economic life. In the field of foreign affairs, no party now believes in isolationism. Both want to extend American influencethrough economic and military pacts. Both are anti-communist and want to check the infiltration of communism in Asia. Both have been once opposed to theentry of Communist China in the United Nations. Both wanted the United States to become the major military power and win the race of armaments againsterstwhile Soviet Union. There may be distinctions of emphasis but in broad outlines the programmes of the two parties do not differ much. Each party istraditionally marked off from its rival, not by doctrine or class but by ancestry. An American belongs to a party primarily because his father and grandfatherhave belonged to it. In short, the American parties are not united in the sense in which political parties in European countries are, nor like the latter,they can be said to represent distinct social and economic classes or clear cut political and economic principles. An American party, in Laski's words,is "much more like a bloc of interests than a system of principles." Personalities and local politics rather than fundamental policies and principles playa far more important part in American elections.Even so, differences are not entirely non-existent, though these differences are of degree than of kind. Firstly, there is a difference in the territorialstrength of the two parties. The Republican party in the deep166South is always in a minority. It is strongest in the North-East and Middle West Secondly, the workers though sometimes vote in large numbers for Republicancandidates, their home is mainly in the Democratic party. The Republican party has been the party of the well-established, the rich and the powerful. WoodrowWilson once remarked, "The chief difference between the Democratic and Republican parties is that in the Republican party the reactionaries are in themajority whereas in the Democratic party they are in the minority." Thirdly, the Democratic party derives its main strength from the agricultural class,whereas the Republican party derives its strength from industrial elements. While there are some exceptions, it remains still correct to say that financialmagnates are more inclined towards the Republican party than towards the Democratic party even though some powerful financiers have aligned themselveswith the latter. Fourthly, the Democratic party is by and large the party of lower tariffs, the Republican party is for protective tariffs. In the monetaryfield, the Republicans have been for "sound" money whereas Democrats have leaned towards the expansion of issues of paper money. Fifthly, in the internationalfield, the Republicans stand for strong armies, international intervention and even war while the Democrats advocate caution, restraint and even isolationism.But these differences, as said above, are differences more of degree than of kind. The truth lies in the fact that exponents of almost all respectable pointsof view on any issue can in fact be found within the ranks of both parties. Both the parties are agreed on strengthening the system of collective securitythrough the United Nations and on giving economic aid to the poor countries so that they may be able to resist communist aggression. In the domestic field,both parties are agreed on the need to check the rising price levels, to enact a national health programme, to support old age and unemployment insurance,to preserve and reclaim land and to provide reasonable security to the fanners and to secure equal rights for women with men. But on the basis of thesesimilarities it would be an exaggeration to label two parties as "two empty bottles" bearing two different labels. According to Ogg and Ray, "Today bothof the leading parties are notoriously conglomerate and disunited. Even yet, they are not properly to be written off as merely two bottles carefully labelledbut empty. By and large, they still stand for distinctive things, traditions, attitudes, principles and policies. Cutting through all strata of society,penetrating all geographical sections, enlisting in some degree all economic interests, they, however,167must increasingly be all things to all men in order to hold, or hope to gain power."3Peculiar Characteristics of the American Party SystemAbove we have described the history, organisation and programme of the American political parties. Now we may briefly summarise the peculiar features ofthe party system in the United States and compare it with the party system in England.(i) Extra Constitutional Growth: Like the parties in Great Britain the political parties in the United States have grown without constitutional recognition.The Fathers of the American constitution were opposed to the party system and considered it detrimental to the national interests. Madison at the PhiladelphiaConvention was determined to create a system of government free from the "Violence of factions". Washington was also opposed to the spirit of the partyand in his farewell address, he drew the attention to its baneful effects. The presidential form of government, the indirect election of the Presidentwere provided to keep the political parties away from the American politics. But even before the constitution was ratified, political parties had comeinto being. Local cliques in towns, counties and States were operating to get the names of candidates before the people and build up support for thesecandidates. At the Philadelphia Convention itself the delegates were divided into Federalists and anti-Federalists. After Washington laid down the office,the differences became acute and came on the surface. The political parties took a dominating position and contested the Presidency.However, the political parties have been given statutory recognition. Laws both, by the Congress and the States have been passed, from time to time regulatingtheir membership, organisational activities and finances. Nevertheless, they remain "voluntary bodies, largely autonomous and self sufficing. Their activitiesgo far towards making Federal and State governments function as they do. But they are not themselves government organs."4(ii) A two party system: The American party system like the British is a two party system. In both the countries according to Griffith, "certain inexorabletrend seems to cause public support to gravitate towards two major parties."5 Throughout its political history, the United States had two major politicalparties. The Anti-Masons, the Free Soil Party, the Green Backers, the Populists, the Prohibitionists, the National Progressive party of Theodore Roosevelt,the Progressive party of Senator La Folletta, etc., have come and gone. The Socialist party has168been in the field since 1900 and has some influence in the New York city only. The Communist party was formed in 1920. Some Labour groups also exist. But"none of the minor parties has ever come within gun-shot of victory in national elections." On some occasions, minor party candidates for the Presidencyhave polled sufficient votes to hold the balance of power between the two major parties, but they have not been able to keep their separate identity. "Thirdparties in American national politics have played the role of innovators of policy, not of holders of office."6 The major parties have included much ofwhat the minor parties advocated. They have taken over many programmes from the Populists, Green Backers, Socialists and Progressives. Those who take partin third party movements may never enjoy the fruits of office.There are several explanations for such a development in America. Firstly, it is said that the American people like their English fellowmen are less doctrinaireand more compromising. Secondly, nationality and religious sentiments that factionalize the people in India are less vigorous in America. Thirdly, theEnglish party system transplanted in the colonial era has continued after the independence as well. Fourthly, and most important, the American voting systemespecially the electoral college and the single member district plan of electing legislative representatives have produced the two party system. If a strongthird party emerges and no candidate secures the electoral quota in the electoral college, the election is thrown to the House of Representatives whichmust select from the highest three, each state casting one vote. The plan naturally does not provide much scope for the emergence of the third parties.Likewise, the single member district system of electing legislative representatives magnified the strength of the leading party and discourages the developmentof minor parties. Fifthly and lastly, the major parties have soon absorbed in their own programmes the issues championed by the minor parties. The oldparties have taken over much of what the left wing parties advocated two or three decades ago. Ogg and Ray have emphasised this fact by observing that"a remarkably large proportion of leading party issues in the past several decades were more or less forced upon the major parties in this way."7 Keepingin view the above facts Howard R. Penniman remarks "Healthy two party systems are in short supply in the world to day. But the same cannot be said of theUnited States". In fact the Republicans and Democrats have not been polarised into two ideologically pure conservative and liberal parties. Moreover theBiparty structure has not fragmented into ideological factions on European or Indian model.169(iii) No fundamental ideological differences: The American party system differs from the British party system in the major respect that in England the twomajor parties, Labour and Conservative, have clearly distinguishable ideologies. The Conservatives are a party of the capitalist, barons, lords and aristocrats.They are wedded to the capitalist system of economy. The Labour party, on the other hand, is a party of the working class committed to a socialist programme.In the United States, there are no fundamental differences of policies between the Democratic and Republican parties. Whatever blurred in the twentiethcentury, the differences, if any, are more of degree than of the kind. They differ more in phraseology rather than in ideology. Ideological differencesare so negligible that Finer was led to remark that "America has only one party, Republican-cum-Democratic dividing into nearly two equal halves.... TheRepublicans being one half and the Democratic being the other half of the party." Lord Bryce described the American parties as "two empty bottles" eachbearing the label denoting the kind of liquor it contains. The geographical differences too, that existed earlier, have been minimised. The Republicanstoday, are not as weak in the South as they were in the civil war period. Likewise, it would be wrong to say that the Democratic party is a party of thepoor and the Republican party is a party of the rich. In both the parties, there are reactionaries as well as liberals. The difference may be of numbers.Thus, there are little fundamental ideological differences between the two parties in America. Both uphold capitalism and regulated free enterprise. Bothare agreed on the need to check the rising price levels, to enact a national health programme, to support old age and unemployment insurance, to preserveand reclaim land and to provide reasonable security to fanners and to promote the industrial growth of the country. Schattschneider remarks 'The Partysystem embodies the American idea of creative relation of government and business. This is why the Republican party is able to act as the guardian of freeenterprise system without becoming disloyal to the democratic system. This is why the Democratic Party is able to espouse the governmental side of thecontroversy without even having sought or received a mandate to abolish the capitalist system."8 In the field of foreign affairs, both the parties areagreed on strengthening the system of collective security through the United Nations, on giving economic aid to underdeveloped nations so that they maybe able to resist communist aggression, on economic and political cooperation with the countries of Western170hemisphere. The old dividing lines in terms of high tariff against low tariff, isolationism against internationalism, pacifism against militarism have beenblurred. The principal difference between the two major parties is that one party is in power and the other is not.(iv) Geographical and traditional differences: Though there are no fundamental ideological differences between the parties in America, the geographicaland traditional differences are discernible. According to Brogan, each party "is basically traditional, marked off from its rival not by doctrine or classbut by ancestry and geographical distribution of strength." An American belongs to a party primarily because his father and grandfather have belonged toit or because he lives in a region where the party has struck deep roots. The Republicans derive their main strength from industrial elements and the Democratsfrom the agriculturists. The Democrats are more firmly entrenched among poorer sections of the American society than the Republicans.(v) Localism: The bed-rock of party organisation in the United States is local organisation. Local party machinery is concerned primarily with local issues.Even the candidates elected to the Congress and the state offices concern themselves more with local rather than national problems. The diversity of localissues throughout the United States makes it impossible for candidates of the same party to take forthright positions on important issues and fight forthem as party issues. An argument which will win the votes in Iowa may bring defeat in Massachusetts, and vice versa. A Democrat from Georgia cannot takethe same position on civil rights for Negroes as a Democrat from Connecticut, without dooming his political future. This characteristic localism of Americanpolitical parties has made them ineffective and inefficient instruments of government. In Great Britain, the party in power stands for well defined principlesand runs the government in terms of these principles. It coerces the elected officials into supporting the party programme instead of merely catering tolocal interests and local constituencies. In the United States, the parties are effective instruments for getting their candidates elected and collectingthe spoils of office but they are not effective instruments for running the government. Instead of acting as units and coercing all members into the supportof party principles, the parties in America are split in all directions and fail to achieve national purposes. They are concerned primarily with winningthe elections and only incidentally with Government.171To sum up, the American party system "has always been one of the mysteries of American life to the enquiring stranger."9 Having grown without constitutionalrecognition, the political parties play an unusually important role in the American political structure and administrative functioning. A committee ofthe American Science Association listed out some criticism of the existing party system in its report in 1950. Among the criticisms included were the lackof discipline, the disparity between platforms and performance and weakness of leadership. The committee also pointed out to some organisational deficiencies.The national convention was judged "an unwieldy, unrepresentative and less than responsible body." The report of the committee called for stronger, betterintegrated and more responsible parties. However things have improved considerably with the passage of time. It is said that campaign reform, federal subsidies,television, more independent voting have all affected the parties roles." Still it is an undeniable fact that the loose two party system of the UnitedStates endures.In the 1996 elections, the Republican party has retained the control of the Senate as well as the House of Representatives. This is the first time in sixyears that the Republicans have managed to win control of the Congress back to back.References1. Munro, W.B., op. cit., p. 629.2. Laski, H.J., The American Presidency, p. 78.3. Ogg and Ray, Essentials of American Government, p. 143.4. Ibid., p. 146.5. Griffith, E.S., American System of Government, p. 146.6. Ferguson and McHenry, The American System of Government, p. 194.7. Ogg and Ray, op. cit., p. 142.8. Schattschneider S.E. The American Party system in Bailay (Ed.) American Politics and Govt. (1967) p. 128.9. Brogan, D.W., The American Political System, p. (x).172 1THE CONSTITUTION OF SWITZERLAND1 INTRODUCTORY"Among the modern democracies which are true democracies Switzerland has the highest claim to be studied. It is the oldest, for it contains communitiesin which popular government dates further back than it does anywhere else in the world: and it has pushed democratic doctrines further, and worked themout more consistently than any other European States."—BryceThe Republic of Switzerland is a small country, about one-third of the area of New York State, situated in the heart of Western Europe. Her people liveon both sides of a great mountain chain. It is surrounded by Germany on the North, by France on the West, by Austria on the East and by Italy on the South.Its people differ in the race, religion, language and to some extent in civilisation. In the words of Dr Munro, "People of Germanic, French and Italianstocks, speaking four languages, have been so squeezed together by powerful neighbours that they have grown into one." The Swiss speak four different languages.A majority of them speak German, some of them speak French, some of them speak Italian and a considerable fraction speak Romansh. In 1938, however, Romanshwas adopted as a national language. There is no uniformity of religious belief as well. About one-third of the Swiss citizens have embraced Protestantismand one-third Catholicism. Despite all these differences on the basis of race, religion and language the Swiss constitute a thoroughly coherent nation.A very healthy tradition of self-government has been established on the Swiss soil for the last 700 years or more. The intermingling of religion and languageshas proved to be a blessing in disguise. It has prevented the growth of excessive exclusiveness and promoted religious tolerance and ardent nationalism.Zurcher has correctly said, "To-day there are no people in Europe among whom a sense of national unity and of patriotic devotion is more2firmly fixed than among the Swiss. In a world grown somewhat weary of the too frequent reiteration of principle of political self-determination for racialand linguistic groups, the Swiss offer a splendid example of how statehood and national patriotism can be fostered in utter defiance of such principles."1In fact each group admits the right of the other groups to maintain their distinct entities. None makes an attempt for encroachment upon the others. Thusa high sense of democracy has developed in Switzerland. The Swiss deeply cherish and strongly uphold communal and cantonal autonomy. Hence the Swiss Constitutionis the true mirror of the feelings of the Swiss who are the adherents of "Direct Democracy" and principle of "Popular Sovereignty."Bryce has very correctly acknowledged the superiority of Swiss Democracy over the rest of the democracies of the world in his famous volume 'Modern Democracies'in the words, "Among the modern democracies which are true democracies, Switzerland has the highest claim to be studied. It is the oldest, for it containscommunities in which popular government dates further back than it does anywhere else in the world." In fact, Swiss Democracy is not only one of the oldestbut the best democracies of the world. It is really a model of democracy worth quoting and appreciating. Apart from being a home of direct democracy, allof its institutions are based on democratic principles.Another distinctive fact about this beauty spot of the continent, is its dynamic neutrality. In war torn Europe, Switzerland alone could keep itself neutraland enjoy political stability. Rappard describes this policy of neutrality as "the true palladium of Swiss independence."2 Even the most aggressive powerslike that of Nazi Germany and Fascist Italy respected the Swiss neutrality. It may, however, be pointed out that Swiss neutrality is neither the outcomeof timidity nor faith in nonviolence. It neither implies isolationism nor passivity towards international affairs. In fact, Switzerland enjoys a uniqueposition as a channel of diplomatic communication between countries at war against each other. According to Hans Huber, her neutral status, "permits thecountry to fulfil certain humanitarian missions in these times of steadily growing deadly conflicts."3 This policy of neutrality has ushered in era ofpeace and prosperity for the country. Hence it has become the cornerstone of the Swiss foreign policy.A Brief Constitutional DevelopmentSwitzerland is the product of a process of unification which commenced in 1291 and was completed by 1848. Prior to 1291, Switzerland was3nothing but a number of separate Cantons which neither had a Central nor co-ordinating authority. These Cantons were somewhat subservient to the Hapsburgrulers of Austria. In 1291, three Cantons Uri, Schwyz and Unterwarden constituted a confederation in order to safeguard their ancient liberties and asserttheir independence from the Austrian domination. They foiled the attempt of Hapsburg to regain their feudal authority. It encouraged the rest of the Cantonsas well. Hence by 1353, eight Cantons joined the confederation. The number of members of the Swiss confederation rose to thirteen by 1648. The treaty ofWestphalia recognised it as a sovereign State.The old confederation constituted in 1291 could not stand the onslaught of the conquering armies of revolutionary France. Switzerland ceased to be a Confederationand became a French Protectorate. Henceforth, Switzerland was to be a centralised State. The new unitary Constitution was so incompatible with the Swisstraditions of local self-government that it entailed wide resentment and caused grave dissatisfaction amongst the freedom loving Swiss. Hence, in 1803,through the Act of Mediation, Napoleon was forced to restore the autonomy of the Cantons constituting Helvetic Republic.With the fall of Napoleon, the Helvetic Republic also came to an end. The old Confederation was revived, though in a modified form, through a Federal Pactwhich was given recognition by the Congress of Vienna. The French suzerainty, however, proved to be a blessing in disguise. Between 1798 and 1815, thefoundations of modern Switzerland were laid. Six more Cantons were added to the thirteen already existing Cantons by the Act of Mediation. In 1815, threemore French speaking Cantons were added, thus giving to Switzerland its present configuration. During this period, the trilingual status of the countrywas recognised.Between 1815 and 1848 there commenced a regular tussle between centrifugal and centripetal forces. The former stood for greater unification and centralisation,whereas the latter advocated maximum autonomy for the Cantons. These two antagonistic forces represented by radicals and federalists respectively clashedopenly in 1847, when seven Catholic Cantons attempted to break away from the Confederation by forming a separate league—the "Sunderband". A Civil War betweenthe secessionists and the radicals resulted in the defeat of the former. Hence a new Constitutional project was drawn up. It became the organic law ofSwitzerland in 1848.4The Constitution of 1848A Diet Committee of fourteen drafted the Constitution of 1848 which after approval by the Diet was submitted to a referendum and was ratified by an overwhelmingmajority of Cantons and the people. Thus the Confederation was converted into a Federal State. Though it seemed to be a step of substantial importanceyet it was purely a compromise arrangement. The Cantons were granted sovereignty so far as their sovereignty was not limited by the Federal Constitution.The Constitution of 1848 made provision for Bicameral Federal Assembly, the Collegial Executive, Referendum, Initiative, Common citizenship and FederalTribunal.The Constitution of 1874The Constitution of 1848 lasted for 26 years only. The tendency towards greater centralisation became more pronounced although the Federalists still pleadedfor social and municipal privileges of the Cantons. The Radicalists advocated the abolition of such rights and privileges. They stood for inalienable rightsand liberties for the Swiss under the protection of a unified and centralised law. The Radicals were backed by a considerable majority of the population.Thus the Constitution of 1848 necessitated the revision. The Federal Assembly framed the new Constitution and referred it to the people for their approval.It was adopted by a thumping majority of the Swiss citizens and fourteen and half Cantons. The new Constitution came into operation on May, 29 1874. Itis according to this Constitution and subsequent amendments that Switzerland is governed today. The revised Constitution carried centralisation still fartherby providing for the nationalisation of railway under federal ownership and vesting more powers with the Centre. Moreover the powers of federal tribunalwere considerably enhanced. The separate judicial systems of the Cantons were abolished.References1. Zurcher, Arnold J., Switzerland in Governments of Continental Europe, p.980.2. Rappard William, The Government of Switzerland, p.131.3. Huber, Hans, How Switzerland is Governed, p. 64.52 MAIN FEATURES OF THE SWISS CONSTITUTION"Among the modern Democracies which are true democracies Switzerland has the highest chain to be studied..."—BryceThe Helvetic Republic is still called a confederation of nineteen Cantons and six half Cantons though since 1848, it has adopted a federal constitutionwhich was considerably revised in 1874. It is an ancestral house of direct legislation and the only country in the world still practising direct democracy.In the words of Dr. Munro, "nothing in the Swiss political system is more instructive to the student of modern democracy."1 Following are the salient featuresof the Swiss Constitution.A Written and Lengthy ConstitutionThe Swiss Constitution of 1848 as amended in 1874 and in subsequent years is a written document like that of the U.S.A. although it is double in size tothat of the American Constitution. It consists of three Chapters containing 123 Articles. Some of the frivolous details like fishing, hunting, gamblingdens, lotteries, sickness and burial of the indigent, cattle diseases, qualifications of members of liberal professions etc. are also incorporated in theSwiss Constitution. In fact, the Swiss Constitution effects a compromise between the advocates of Cantonal rights and the admirers of the strong FederalGovernment. Hence according to Brooks, it attempts to anticipate and prevent "causes of internal friction and possibility of civil strife."2 Such an attemptautomatically makes the Constitution voluminous.6RigidThe Swiss Constitution is rigid in character, though not so rigid as the U.S.A. Constitution. The procedure of its amendment is rather complicated. Thereare two methods of amending it:(i) Through Referendum: If both the Houses of the Federal Legislature agree by passing a resolution to revise the Constitution, either, wholly or partially,they may draft such a proposal and submit it to the vote of the people and the Cantons. If a majority of the citizens voting at Referendum and a majorityof the Cantons approve of it, the amendment is made in the Constitution. In case only one House agrees to the proposed revision and the other does not,then the proposed revision is referred to the people's vote to ascertain whether the proposed revision is necessary or not.If the people approve the proposed revision by a majority vote, Federal Assembly stands dissolved. The newly elected Assembly takes up the proposed revision.If both the Houses of the Assembly ratify it, which is a foregone conclusion, the revision is submitted to the people and the Cantons for vote. If majorityof the people and the Cantons approve of it, the revision is effected.(ii) Through Constitutional Initiative: A complete or partial revision of the Constitution can also be effected through popular initiative, on the petitionof at least, 1,00,000 Swiss citizens since 1977.In case of a complete revision of the Constitution through initiative, the question whether there should be a revision of the Constitution or not, is referredto the people for their vote. If majority of the people give verdict in favour of such a revision, fresh elections of the Federal Assembly take place.The newly elected Assembly drafts the new Constitution and after approving it which is a foregone conclusion, submits it to the Referendum of the peopleand the Cantons. If majority of the people and the Cantons give verdict in favour, the revised Constitution is enforced.As regards partial revision of the Constitution both formulative and unformulative initiative methods can be adopted.In case the demand for amendment is 'unformulative' or is 'couched in general terms,' the Federal Assembly if approves such an amendment, draws up suchan amendment as desired by the sponsors of such an amendment and submits it to the vote of the people and the Cantons. If majority in both the cases approvesit, the said amendment is effected. If the Federal Assembly does not approve of it, the Federal Council submits the unformulative proposal to the voteof the people. If7majority of the citizens favour the revision, the Federal Assembly is required to draft the once-disapproved proposal in accordance with the Initiativeand then submit it to a regular Referendum of the people and the Cantons. On the approval of majority of the people and the Cantons, the revision of theConstitution takes place.If the proposal for initiative is in a formulated form, the Federal Assembly approves it, submits it to a Referendum of the people and the Cantons. If theHouses of the Federal Assembly do not approve of the initiated amendment, they may recommend rejection, or counterproposals alongwith the popularly initiatedproposal, to the people and the Cantons for vote. In both the cases, approval of majority of the people and the Cantons is essential.The above quoted complicated procedure reflects clearly that the Swiss Constitution is rigid in character. Since 1874, only two proposals for complete revisionhave been made. Both were rejected. There have been quite numerous partial revisions of the Constitutions, vast majority of which enhanced the competenceof the Central Government. Rappard has rightly pointed out "It is easier for the Swiss people to amend their fundamental law than their ordinary statutesagainst the will of a hostile parliament.3A Republican ConstitutionSwitzerland is one of the oldest Republic of Europe. The Constitution of 1874 establishes Republic not only at the centre but also in the various Cantons.Republicanism is in fact the very breath of the Swiss way of life. Article 6 guarantees the Cantonal Constitutions provided that the latter "assure theexercise of political rights according to Republican (representative of democratic) form." In fact the framers of the Swiss Constitution were keen to emancipatethe individual from shackles of the aristocratic, mercantilistic and clerical traditions which had for centuries crushed the individual's freedom. Hencethey abolished the aristocratic and oligarchic privileges and guaranteed to the Swiss equality before law. Every Swiss participates in determining hisgovernment. All political institutions in Switzerland are elective in character. The principle of Republicanism is in fact the bulwark of Swiss Democracy.A Federal Form of GovernmentThough the Republic of Switzerland is formally designated as the Swiss Confederation, it is in fact a federation. The preamble of the Constitution if properlyinterpreted clearly establishes that a permanent union and not a loose league of States has been set up in Switzerland.8The Preamble states: "The Swiss Confederation came into being to consolidate the alliance of the Confederated members and to maintain and increase the unity,strength and honour of the Swiss nation." The Preamble further emphasises that to achieve the solidarity of the Swiss nation. "Federal Constitution hasbeen adopted." The powers of government have been divided between the national and the Cantonal Governments on the American pattern. Article 2 of Constitutionstates, "The purpose for which the Confederation is formed is to secure the independence of the Fatherland as against foreign nations, to maintain peaceand good order within, to protect the liberty and rights of the Confederates and to foster their common welfare." Thus the federal government has beenvested with powers of national importance and the residuary powers have been left to the Cantons. The Cantons, however, enjoy supremacy in their own sphere,though some restrictions have been imposed upon them viz. (a) they must have Republican Constitution; (b) their Constitutions must not be contrary to thefederal Constitution; (c) they must be subject to revision or amendment by popular vote.It may, however, be pointed out that the powers of the Federal Government have increased considerably since 1874. The prominent factors which have contributedto the process of centralisation are: wars, economic depression, the demand for ever increasing social services and the mechanical and technological revolutionin transport and industry. In fact these factors had affected all federations, Switzerland being no exception. In the words of Andre, "The danger of thistendency is that to the extent they suffer the encroachment of the Central power, the Cantons will generally cease to be sovereign States at all and becomesimple district administrations carrying out the behests of the federal authority." In fact, this is rather an exaggerated view. The spirit of local autonomystill pervades in Switzerland. The Cantons still possess the residuary powers. The courts of Cantons slill administer the laws of the federal governmentand the officials of the Cantons still work for the federal Government in the Cantons. No change in the federal Constitution can be made without the approvalof the Cantons. Article 3 of the Constitution very well explains the real position of the Cantons in Swiss federation: "The Cantons are sovereign so faras their sovereignty is not limited by the Federal Constitution and as such they exercise all rights which are not delegated to the Federal Power."Article 5 of the Constitution guarantees to the Cantons their sovereignty, inalienability of their territories and rights of their citizens.9Moreover, they are allowed to conclude treaties with foreign States in respect of matters of public economy and police and border relations provided thatthese treaties are not detrimental to the interests of the Federation and the other Cantons. However, communication between the Cantons and the FederalGovernment must take place through the Federal Council. The Cantons are allowed to keep their own permanent military force, though their number is notto exceed 300. This is a novel provision. Defence in other federations of the world is generally the concern of the Centre. During emergency, however,the Federal Government is vested with exclusive authority over the Cantonal forces. The discipline of the Cantonal forces also is regulated by the Federallaws. In case of any dispute between the Cantons or the outbreak of rebellion a rarity in a country like Switzerland the Federal Council may assume evendictatorial powers. We can, therefore, conclude that on the whole, the Cantons possess large amount of autonomy though central intervention predominates.Thus autonomy has, however been eclipsed at times, nevertheless the confederation draws its authority from the cantons. The constitution expressly recognizesthe judicial personality of the Cantons in the composition of all federal organs and also the process of amendmentDemocratic Character of the Swiss Government Democracy and Switzerland are almost synonymous.4 In the words of Bryce, "Among the modern democracies which are true democracies, Switzerland has the highestclaim to be studied. It is the oldest, for it contains communities in which popular government dates farther back than it does anywhere else in the world,and it has pushed democratic doctrines farther and worked them out more consistently than any other European State."5The principles of sovereignty of the people and equality among the citizens and universal adult suffrage are the hallmark of the Swiss Constitution. Theprinciple of sovereignty of people is reflected through the representative character of national and Cantonal legislatures, the adoption of the institutionlike Referendum and Initiative, and the Republican character of the Executive offices. The principle of equality is implemented through the abolition ofaristocratic and oligarchic privileges. In some of the Cantons primary assemblies of all adult citizens constitute the legislative bodies. They are termedas "Landsgemeinde." Every adult citizen can speak and make his own laws and elect officers. The officials in this country have not developed bureaucratictendencies which are so very common in the other10democratic countries of the world. In the words of C.J. Friedrich "the Swiss appear to have a more effective democratically responsive officialdom thanany other country except Sweden."6 It is thus obvious that in the true sense, Democracy exists in Switzerland. In fact Switzerland is the only countryin the world which can claim itself to be a direct Democracy. Zurcher rightly opines, "Switzerland and Democracy have in recent years become almost synonymous."7However, it will not be out of place to point out that such a perfect democracy, stood eclipsed till 1971 as Swiss women did not enjoy the right to vote.Through a constitutional amendment effected in February, 1971, the right to vote was extended to women as well. Hence Switzerland is no longer a male dominatedor male run democracy;LiberalismThe Liberal philosophy of the nineteenth century had a profound influence on the framers of the Swiss Constitution. Hence, the impact of that philosophyis discernible at every point. The emancipation of the individual from restraining influences of the church and other paternalistic agencies, the abolitionof all political privileges, the provision of freedoms of petition, belief, speech, the press and assembly, free and compulsory education, equality beforelaw, freedom of trade and commerce are some of the important rights and privileges revealing the liberal philosophy ingrained in the Swiss Constitution.Andrae rightly remarks "We have all the characteristic features of democracy functioning between a minimum and maximum ceiling... Conservative... as soonas it has anything to conserve..."8 During the recent years, however, Liberalism of the Swiss Constitution has been toned down to some extent due to gradualaccentuation of governmental intervention in the economic sphere. In the words of Zurcher such a development has, however, not altered, "fundamentallythe traditional liberal orientation of the Swiss policy."Swiss Constitution and Citizen's RightsThe Swiss Constitution does not contain a formal Bill of Rights as we found in erstwhile U.S.S.R. and since 1950 in India. This does not however, mean thatthe fundamental rights of Swiss citizens are not protected by their Constitution or are not incorporated in it. In fact, the rights ensured to the Swisscitizens are scattered in a number of articles of the Swiss Constitution. The Constitution guarantees to Swiss citizens equality before law, freedom ofmovement in the country and residence in any part of the country and freedom of press and association and of petition. Right to vote is allowed to citizensof 20 or more years of age.11However, a few restrictions have also been imposed upon these rights. For instance, Liberty of expression is exercisable within the bounds of morality.Freedom of religion also is subject to protective restrictions. No citizen can refuse to fulfil the obligations of citizenship on religious ground. Theestablishment of new religious orders is not permitted. The citizens possess the right of forming Unions provided they do not indulge in activities detrimentalto the interests of the State. They can seek free elementary education in government school. Right to marriage is also guaranteed. Moreover, these rightshave corresponding duties as well.These rights both guaranteed by federal constitution and also the Cantonal constitution are not mere paper rights. They are safeguarded by Federal Tribunal—thehighest and the only national Tribunal of Switzerland. Contravention or abrogation of any one of these Fundamental Rights by the Legislature or Executiveis prevented through the Federal Tribunal. Hans Huber has very well explained the significance of these rights when he emphasises that they "are bulwarkswhich protect the linguistic, religious, political and social minorities against any bias towards dictatorship on the part of a majority and guaranteea sphere of privacy to the human personality."9Plural ExecutiveThe Constitution vests the executive power with the Federal Council which consists of seven members who are elected by the Federal Assembly for four years.The Executive powers in Switzerland are not entrusted to a single man, unlike that of U.S.A., or U.K., where the President and the King constitute theExecutive Heads of the States respectively. The 'President' of the Swiss Council who is elected by the Federal Assembly for a period of one year only,is simply 'first among equals'. He in no way enjoys a position superior to that of the rest of his colleagues. As a chairman of the Federal Council he,however, performs certain ceremonial functions which are possessed by formal heads of the states. The Swiss Executive has thus been correctly describedas "a collegium fulfilling simultaneously the functions of a government and of a Chief of State."Secondary Position of the JudiciaryThe Swiss judiciary plays a less vital role than the judiciary in the United States of America or India. The Swiss Federal Tribunal the supreme court ofthe country has only limited judicial review. It can declare only a Cantonal law unconstitutional. The Swiss Constitution makes it specifically clear that"the Court shall apply laws voted by the12Federal Assembly." In other words, it does not exercise judicial review of the laws passed by the Central Government. The election of judges by the FederalAssembly further establishes the inferior position in fact denigeration of Judiciary in Switzerland. Moreover, the Swiss Tribunal is the only nationalcourt which stands alone instead of being at the head of a great national judicial system as is the case in USA or India.Bicameral LegislatureThe Swiss Legislature also is bicameral in character. The Upper House known as the Council of States represents the Cantons of Switzerland on equal basislike that of American Senate which accords equality to all the States. It is a small House consisting of only 46 members. The National Council is the representativeLower Chamber. It consists of 200 members. Both the Houses have been kept on a par with each other in respect of their powers. In the words of Dr. Strong,"Swiss Legislature like Swiss Executive is unique. It is the only legislature in the world, the functions of whose Upper House are in no way differentiatedfrom the Lower."A Dynamic ConstitutionThe Constitution of Switzerland is dynamic in character. It has been adapting itself to the exigencies of time and keeping pace with the social aspirationsof the people. For instance, the traditional freedoms of speech and that of forming associations were curtailed to some extent during the two world wars,as Switzerland was keen to maintain her neutrality. The government followed a policy of nationalisation within the framework of the old constitution. TheState intervened whenever independence of the Swiss citizens was endangered. The emanation of Labour Legislation in 1877, 1908 and 1920 stands witnessto this fact. Economic depression of 1930 necessitated state intervention to bring the country out of the morass of economic insecurity and utter frustration.Thus we come to the conclusion that the Swiss Constitution is indeed unique in character. Its direct democracy devices are the envy of the democratic constitutionsof the world. Its plural executive combining in itself the advantages of parliamentary and presidential executives and avoiding their pitfalls is anotherlaudable contribution to the mechanism of world governments. Its imbibing liberal philosophy negating the two extremes—capitalism and orthodox socialismis again a commendable choice of admixture of merits of both the systems. Dr. Munro has rightly remarked "So here is democracy that has been spared mostof the ills that democracy is presumed to bring in its wake. To what causes may this good fortune be ascribed? Partly to the smallness and13compactness of the country, its natural defensiveness and its varied resources. Partly also to the intelligence, patriotism and good sense of its people...Partly again to the relatively equal distribution of property... And... finally, to sound traditions..."10Before we end this chapter, the civil rights available to Swiss citizens may be further eloborated. As said earlier the Swiss constitution does not incorporateany independent chapter or Bill of Rights unlike that of India The rights are scattered in the constitution. They enjoy protection of the courts. Followingare some of the important rights ensured to the Swiss.(i) Right to citizenship: According to Article 43 'Every citizen of a canton is a Swiss citizen. However citizenship in Switzerland is threefold. Any personcannot be citizen of Switzerland without being the citizen of Canton and no one can be the citizen of a Canton unless he is a citizen of commune. Citizenshipis guaranteed.(ii) Right to move: Every citizen possesses the right to move freely in any part of the confederation. But in case of inter-Canton movement certificateof origin can be asked for by the Cantonal authorities. The right to reside can be refused in the following circumstances:(a) If the individual has been deprived of his civil rights.(b) If the individual has been repeatedly sentenced for grave misdemeanor.(c) If the individual has become a permanent burden on public charity.(iii) Equality before Law: Article 4 assures equality before law to the citizens. In Switzerland, there are neither subjects nor privileges of rank, birth,person or family, Article 60 guarantees equal treatment to all the citizens. It provides, "Every Canton is obliged to accord to citizens of other confederatestates the same treatment it accords to its own citizens as regards legislation and all that concerns judicial proceedings."(iv) Right to Press, Association and Petition: The Swiss citizens have been granted the right to free press and publication of their views. But such freedomis subject to the laws made by the Cantons for the repression of the abuses". In case of default the Central Government has been authorised to frame penaltiesfor the purpose. In fact the Swiss Press is highly responsible and conservative rarely engaged in sensationalism the characteristics' of newspapers inU.S.A. and India. Likewise the freedom of association enables a Swiss citizen to form any religious, social, economic and political association. The rightto assembly at any place has also been guaranteed. However, unlawful14associations or assemblies inimical to the interest of the state are banned.Right to Petition is unique in character. It permits the citizens to send petitions to the Government in protest to its policies and activities. However,this right pales into insignificance in view of provision of initiative in the constitution.Free Education: The Swiss can seek free elementary education in Government schools as well.Right to Religion: Article 49 and 50 have guaranteed religious rights. Article 49 states "Liberty of conscience and belief is inviolable" Article 50 laysdown "The free exercise of forums of worships is guaranteed within the limits compatible with public order and decency'. There can be no compulsion regardingreligious belief, worship etc. Religion in no way restricts the civil and political rights of the citizens. No citizen can refuse to fulfil the obligationsof citizenship on religious grounds. The establishment of new religious orders is not permitted.Besides the rights referred above the Swiss citizens enjoy the fruits of Direct Democracy through the methods of Referendum and initiative. The Constitutionof Switzerland has made people conscious of duties as well.Though the Swiss Constitution has not incorporated an elaborate chapter of Rights yet it cannot be denied that the basic rights as provided in other democraticconstitutions of the world have been assured to them.It is a small compact country inhabited by enlightened people who are fully appraised of the value of basic freedoms. Hence they cherishingly adhere tothem. Referendum and initiative are the enviable rights which in the real sense Swiss citizens alone enjoy and can take pride in their Democracy — theonly Direct Democracy in the world.References1. Munro, W.B. and A. Yearst, Morely: The Governments of Europe, p.746.2. Brooks, R.C.: Government and Politics of Switzerland, p.49.3. Rappard D.E.: The Government of Switzerland p.60.4. Zurcher, Arnold J: Switzerland in Government of Continental Europe, p. 937.5. Bryce: Modern Democracies, Volume I, p. 367.6. Friedrich, C.J.: Constitutional Democracy and Government, p. 390.7. Zurcher, Arnold J: op. cit.8. Andrae Siegfried: Switzerland, p.152.9. Huber, Hans: How Switzerland is Governed; p. 41.153 FEDERAL LEGISLATURE"The Federal Assembly has been reduced to a certain extent to the position of an advisory body with the electorate exercising the real decision-making power."—CoddingThe Federal Legislature of Switzerland is called Federal Assembly. It is bicameral legislature consisting of two Houses—the National Council and Councilof State. Article 71 of the Constitution vests supreme power of the Constitution with the Federal Assembly, though subject to the rights of the peopleand of the Cantons. In fact the laws passed by the Assembly can neither be vetoed by the President of the Swiss Confederation nor declared unconstitutionalby the Swiss Federal Tribunal. They can, however, be rejected by the people or the Cantons at the polls. Rappard has very correctly said, the Federal Assemblyenjoys supremacy "as long as it retains the confidence and performs the will of the electorate."1 The supremacy of the Federal Assembly is further establishedwhen we learn that the other branches of the Swiss Government are not only, not coordinate and independent but also are subordinate to the Assembly, subjectto the provisions of the Constitution.The National Council—Its CompositionThe National Council is the Lower House of the Legislature. The total strength of the House is not fixed by the Constitution and is variable from time totime according to the growth in the population of Switzerland. In the initial stages one representative used to be elected from 20,000 people but thatfigure was later on raised to 22,000. In actual practice, after every ten years there is a census and on the basis of that census the number of representativesto be returned by any Canton is fixed according to the population of the Canton. It has, however, been16made specifically clear that every Canton or half Canton must be represented by at least one representative in the National Council. This is done in orderto safeguard the interests of the people of every Canton. Before 1930, it consisted of 198 members, one member representing approximately 20,000 people.Since later on, the basis of representation was changed to one member for every 22 thousand people, the number of members of the House was reduced to 194by 1947. Since 1963 the House has fixed membership of 200 members. 24,000 people constitute an Electoral Constituency and fractions greater than 12,000are counted as 24,000. Every Swiss citizen who is 20 years or above of age, not otherwise disqualified, has a right to vote. Prior to 1971, women werenot given right to vote. Only male citizen used to exercise right to vote. It was a stigma on Swiss Democracy. However since 1971 women enjoy parity withmen in this respect. The members of the National Council are elected by secret ballot and since 1910 by Proportional Representation. Qualifications forthe members are to be the same as that of the voters. Clergies, executives and principal administrative servants of confederation, Federal Councillorsand members of the Council of States are not eligible for election.Tenure and SessionsThe House is elected for a period of four years. It is not subject to dissolution except for total revision of the Constitution when the Houses do not agreewith each other. Elections to the House are held after every four years on the last Sunday in October. Generally, the elections take place in the churches.The House meets regularly four times a year in the months of March, June, September and December. Special sessions also may be convened by the FederalCouncil if emergency arises. Sessions are generally short, lasting for about three weeks at a time. The House meets at 8 a.m. in summer and 9 a.m. in winter.The members very punctually attend the meetings of the House.Debates in the HouseThe Swiss Assembly is a business-like body doing its work very quietly. The Debates are orderly. Rhetoric is unknown. Neither the loud applause nor thecries of shame, approval or dissent are heard. Divisions on the bills are very rare. In the words of Andrae Siegfried, "The sessions of the National Councilare more like meetings of an administrative body affecting only indirectly those who are not immediately concerned—but what an efficient administration!"A Swiss Deputy is not at all prone to emotions. He is known for shrewdness and practical sagacity. He takes middle view of questions.17Hence Debates in the House hardly attract much attention of the nation. There are no official stenographers in the House. The Debates are scantily reportedin the leading newspapers. The Deputies are allowed to speak in any of the prevalent languages. Every public document is published in German, French andItalian. All decisions are made by majority of those voting, quorum being 101 in case of National Council. However, in case of urgent matters majorityof all the members is required.President of the CouncilThe National Council elects its own President and Vice-President for one year. They are not eligible for the same office in the next consecutive year. Generallythe Vice-President succeeds the outgoing President. The President performs the functions which a Chairman is expected to perform in the House. He regulatesthe business of the House, maintains decorum and protects privileges and dignity of the members of the House. He possesses casting vote in case of a tie.He votes like any other ordinary member when the House elects various committees and bureaus. His is not a lucrative office. It does not carry any salary.It is not spectacular either, unlike that of the Speaker of the House of Commons in U.K. who is known as impartial dignitary. It does not command eveninfluence which usually is associated with that of the Speaker of the House of Representatives in the U.S.A.No Official OppositionUnlike that of Great Britain, where opposition is recognised as 'Her Majesty's opposition,' and the leader of the opposition gets a cabinet minister's salaryand status Switzerland has not given recognition to the opposition. In fact, the role of political parties in Swiss legislature is hardly of any significance,firstly, because the National Council is not vested with the power of ousting the Federal executive by a vote of no-confidence, secondly, because the FederalAssembly does not possess the supreme legislative power, as the people can negate its decisions at Referendum. The Federal Councillors cease to be membersof the Federal Assembly on their getting elected. They do, however, appear on the floor of the Legislature, though they do not have the right to vote.The Councillors are assigned seats on a dais right and left of the chairman of the House. Since they are no longer the members of the House, they are notthe leaders of the parliamentary majority, no matter howsoever great influences they may otherwise command. In the absence of any ministerial party, oppositionis out of the question. The18deputies usually sit in the House by Cantons, irrespective of their party labels. In the words of Bryce, 'There is no bench for a Ministry nor for an opposition,since neither exists. The executive officials... have seats on a dais right and left of the President but not being members they are not party leaders."Council of StatesThe Council of States happens to be the Upper Chamber of the Swiss Legislature. It stands for the concept of Cantonal sovereignty and personality. As suchlike that of American Senate it gives equal representation to all the units irrespective of their size and population. Every Canton sends two representativesand every half-Canton only one representative to the Council of States. Its total membership is 46 representing 23 cantons, three divided into half cantons.Unlike that of the U.S.A., the mode of election and the tenure of these members of the Swiss Council of States is not uniform. Each Canton, by its ownlaws determines the method of election of the deputies and their tenure. In some of the Cantons, the deputies of the Council of States are elected by theCantonal Legislatures, in majority of them, they are elected by the people. The tenure of these members varies from one to four years. Three years is,however, the most common tenure. In two of the Cantons, recall of these members before expiration of their tenure is allowed. The deputies vote withoutinstructions from their Cantons. In other words, the members of the Council of States do not represent separate Cantonal interests. As such they are notbriefed by their respective cantons to vote for or against particular issues. The members vote according to their consciences and not instructions fromCantonal party head.The deputies of the Council of States are paid salaries and allowances, etc. by their respective Cantons, according to their own means.Its SessionsIt meets once a year in ordinary session on a day fixed by standing orders. Special sessions of the Council can also be convened either by the Federal Councilor on the request of the deputies or of five Cantons.Its ChairmanIt elects its own Chairman and also a Vice-Chairman for each ordinary and extraordinary session. Article 82, however, specifies that the Chairman and theVice-Chairman may not be chosen from the deputies of the same Canton. Nor can any of these officers be elected from19among the representatives of the same Canton for two consecutive sessions. Conventionally, however, the Vice-President of the year is promoted to the officeof the President the next year. The President presides over the meetings of the House and determines the order of business to be transacted everyday. Hepossesses a Casting Vote in case of a tie.How the House Functions?The business of the House is transacted by an absolute majority of the total number of members of the House. The deputies do not dance to the tune of theirCantons, as is generally the case in federations. It implies that the deputies hailing from the various Cantons do not represent the Cantonal interests.They do not vote as directed by the Cantons. In the words of Christopher Hughes, "The programme which the Article implies is that members should vote fromtheir consciences and not from instructions."2The Council of States though a weaker Chamber yet not subservient to National Council. The Swiss Constitution keeps these two Chambers at par with eachother as regards their powers. In the words of C.F. Strong "The Swiss legislature like the Swiss executive is unique; it is the only legislature in theworld the powers of whose upper House are in no way different from those of the lower House." The legislative measures must be passed by both the Houses.In case of disagreement between the two Houses over a Bill, if the Committee fails to reach an agreement, the Bill is dropped. Both enjoy parity even infinancial matters. The fathers of the Swiss Constitution were keen to make the Council of States analogous to the American Senate and enable it to enjoythe position of precedence over the National Council. But with the passage of years, the Council of States appeared in the true colours. It failed to comeup to the expectations of its authors. Because of non-uniformity of tenure and practice of recall in some of the Cantons, the men of energy and ambitionare not attracted towards it. It is devoid of any special executive and judicial power unlike that of American Senate which is equipped with importantexecutive and judicial powers. Moreover, the Constitution vests co-equal and coordinate authority with both the Chambers. Naturally, outstanding statesmenwill like to become the members of the National Council which apart from sharing powers equally with the Council of States is more representative in characteras. well. Referring to Council of States, in comparison with American Senate, Vincent has correctly observed "An Assembly which fully represents the Staterights idea has been established but without20the regularity of construction, the facility in conduct of business, and the dignity with which long tenure and experience in legislature has naturallyclothed a Senate."The Council of States, though is not as powerful as the American Senate, yet is not so weak as the House of Lords in England or Senate in Canada. It doesnot command a subservient position like the Upper Chambers in the Parliamentary Governments. It is not a submissive body either. It often disagrees withthe Lower Chamber on the measures passed by the latter. On rare occasions, it has not only insisted on the disagreement with the Lower Chamber, but hasalso persistently adhered to it. Such a dogged persistence has eventually led to the dropping of the Bill. Moreover parity of powers between the two Housesin legislative, constitutional and financial matters has saved it from getting reduced to subservient position like that of British House of Lords andCanadian Senate. Annual business as Budget is initiated one year in the Lower Chamber and the next year in the Upper Chamber. Thus the Council of Stateshas been able to preserve its distinctive entity.Its small membership which enables it to finish its work very promptly has, however, earned it the reputation of being an idle Chamber which in fact, itis not.Joint Sessions of the HousesThough, normally speaking both the Houses meet separately to transact their daily business, yet there is a provision for their joint session for certaindefinite purposes mentioned below:(a) for the election of the Federal Council and its President the judges of the Federal Tribunal, the Chancellor of the Confederation and of the General-in-chiefof the Federal Army;(b) for resolving a conflict of jurisdiction between federal authorities, i.e., the conflicts between the Federal Council and the Federal Tribunal or InsuranceTribunal or between the latter two.(c) for granting pardons. (It may, however interest the reader that while pardon is to be granted, both the Houses meet in a joint session. In case of grantingamnesty both the Houses meet separately).In case of joint sessions, the Chairman of the National Council presides and the decisions are arrived at by a majority vote. Here too, the superiorityof the numerically stronger Chamber, stands.21Legislative ProcedureThe process of law-making in Switzerland is of a peculiar type. Neither of the two Houses has any special rights of priority. Unlike that of the other democraciesof the world, every bill including the money bills is initiated in both the Houses simultaneously which ensures independent and separate considerationof the bill by both the Chambers. The most important bills are introduced by the Federal Councillors though the other members can initiate the bills aswell. Since the Federal Councillors happen to be skilful administrators equipped with common sense and mental grasp, either Chamber or the people whenthey initiate the measures, may by a resolution request them to draft a bill on any specified subjects along certain lines. At the commencement of everysession, the Federal Council presents a list of Bills to the Presidents of both the Houses of the Swiss Legislature. The Presidents thereafter mutuallyagree to assign each proposed measure to one or the other House. Introduction of a Bill or a measure in one House is taken for an automatic introductionof the same Bill in the other House as well.In both these Chambers, the measures are referred to the Committees which consist of representatives of parties in proportion to their strength in the House.The Presidents of the two Chambers and the "Scrutateurs" nominate these members unless they are elected by the House itself. Generally, these Committeesunanimously agree on a decision which is communicated to the House through an elected reporter. In case, the members of the Committees have divergent opinionson a Bill, they may communicate the same to the House through two or more elected reporters.Relation between the two HousesComplete equality of status is the most remarkable feature of the Swiss Legislature. The Chambers of the Swiss Legislature possess co-equal and co-ordinateauthority in every respect. As already said, bills can be initiated in either of them. This is unlike that of India and U.K. where money bill must be initiatedin the Lower Houses.Even the Federal Councillors are accountable to both the Houses. They have to answer the questions in both the Houses. For electing the members of the FederalCouncil, the judges of the Federal Tribunal, the Chancellor and the Commander-in-Chief, both the Houses hold a joint session. For granting of pardons andresolving of disputes amongst the federal authorities, both the Houses sit together. Hence as already said Dr. C.F. Strong views Swiss Legislature as theonly Legislature in the world the functions of whose Upper Houses are in no way differentiated from those of the Lower.22How Conflicts between the Houses are resolved?In fact, the Swiss Constitution does not make any provision for resolving of conflicts, if at all they occur between the two Houses. This is a lacuna inthe Swiss Constitution. Though it appears to be a serious drawback in the Constitution, yet in actual practice it is not a serious handicap. Deadlocksbetween the two Houses are very rare. Even if they sometimes occur they "have not been pushed to a point of a constitutional crisis."3 It is due to threereasons—(a) The control of legislation in Switzerland ultimately lies with the people; (b) the Swiss Council of State is no more conservative than theNational Council; (c) neither of the two Houses is prepared to adopt an uncompromising attitude.There does, however, exist an elaborate procedure for reconciliating differences of opinions between the Councils. If the procedure for resolving differencesfails, the whole project is dropped. If it is reintroduced, it is to be started afresh. If it is essential to arrive at a decision, the two Chambers meetin a joint session and decide by a vote. In such a case, the will of the Lower House which is much bigger in size than the Upper Chamber, is apt to prevail.Powers of the Federal AssemblyIn the words of Zurcher, "There are few Parliaments which exercise more miscellaneous duties." In fact, the Federal Assembly has been vested with all kindsof functions—the Legislative, the Executive, the Judicial and the Constitution-amending.Legislative PowersThe supreme authority of the Confederation is vested with the Federal Assembly. According to Article 84, the Federal Assembly is competent "to deliberateon all matters which this Constitution places within the competence of the Confederation and which are not assigned to any other federal authority". Followingare its legislative and financial powers:(a) it passes all federal laws and legislative ordinances;(b) it passes the annual budget, appropriates the State accounts and authorises public loans floated by the federal government;(c) it determines and enacts necessary measures to ensure the due observance of the Federal Constitution, the guaranteed 4he Cantonal Constitution and thefulfilment of federal obligation;(d) it enacts measures ensuring the external safety of the country, her independence and neutrality;23(e) it adopts measures ensuring the territorial integrity of the Cantons and their Constitutions, the internal safety of Switzerland and the maintenanceof peace. It may, however, be said that all laws whether urgent or not, passed by the Assembly are subject to the ratification of the people, if 30,000Swiss citizens or 8 Cantons so demand it. The urgent bills get inoperative one year after their adoption by the Assembly, if they are not approved by thepeople within this period.4Executive Powers(a) Both the Houses in a joint session elect the Federal Councillors, the judges of the Federal Tribunal, the Chancellor, the members of the Insurance Tribunaland the Commander-in-Chief.(b) The right of election or confirmation, as regards other officers, may be vested with the Assembly, by Federal Council.(c) It supervises the activities of the Civil Service.(d) It decides administrative disputes and conflicts of jurisdiction between federal officials.(e) It determines salaries and allowances of members of federal departments and of federal Chancellory and also the establishment of permanent federal officesand their salaries.(f) It controls federal army.(g) It declares war and concludes peace.(h) It ratifies alliances and treaties. The treaties concluded by the Cantons between themselves or with the foreign States are to be ratified by the FederalAssembly provided that such Cantonal treaties are referred to the Federal Assembly either on the appeal by the Federal Council or another Canton.(i) It supervises even the Federal Tribunal.Judicial PowersThough the judicial powers of the Federal Assembly were considerably curtailed by the Constitutional Revision of 1874, yet they are not less significant:(a) The judges of the Federal Tribunal are elected by the Federal Assembly.(b) It also hears appeals against the Federal Council's decisions on administrative disputes.(c) It deals with conflicts of jurisdiction between different Federal authorities.(d) It exercises prerogative of pardon and amnesty. Pardon is granted in joint session of the two Houses, whereas amnesty is granted by two Chambers meetingseparately.24Constitution Amending PowerAs already discussed, both the Chambers of the Federal Assembly participate in the amendment of the Swiss Constitution. If both the Houses agree to amendthe Constitution, either wholly or partially, the proposed revision is submitted to the people for their acceptance or rejection. In case the Houses disagreewith each other, the matter is referred to the vote of the people for their decision whether they need such a revision or not. If the majority of the Swissvote for revision, new elections to the Federal Assembly take place. The newly constituted Houses pass the requisite amendment which is finally placedbefore the people and the Cantons for their approval.The amendment is effected through initiative too. Here too, Assembly plays a conspicuous part.General Supervision over Federal Administration The Federal Assembly exercises general supervision over the federal administration. It issues instructions to the Federal Council in the form of postulates.The members of the Assembly can elicit information from the Executive through 'Interpellations'. Besides, the members of the National Council can alsoask 'minor questions' from the Federal Councillors who are supposed to give written answers.Keeping in view these multifarious powers of the Federal Assembly Zurcher remarked "The makers of the Swiss Constitution conferred upon the Federal Assemblyall kinds of authority, legislative, executive and even judicial". But a critical analysis of these powers reveals that the Legislature neither controlsthe legislation nor the purse. It does not have a hold on the executive either as it cannot oust it. Thus the powers conferred upon the Assembly are morenominal than real. Codding correctly remarks "The Federal Assembly has been reduced to a certain extent to the position of an advisory body with the electorateexercising the real decision making power.5However, the legislative, executive, judicial and constitution-amending functions of the Swiss Legislature make it crystal clear that the principle of Separationof Powers is not embodied in the Swiss Constitution. Secondly, the Assembly apparently seems to be a powerful body which in fact it is not. The adoptionof devices like referendum and initiative have enabled the people to exercise final power of accepting or rejecting a Bill. They can even ask the Assemblyto pass a bill which it has ignored. Thirdly, the Assembly cannot oust the Councillors by a vote of no-confidence. Still its miscellaneous powers appearto be impressive.25References1. Rappard, D.E., The Government of Switzerland, p.56.2. Hughes, Christopher: The Federal Constitution of Switzerland, p. 104.3. Brook R.C., Government and Politics of Switzerland, p.96.4. According to amendment effected on January 22, 1949.5. Codding G.A.: The Federal Government of Switzerland, p.92.264 THE SWISS EXECUTIVE (FEDERAL COUNCIL)"Federal Council stands outside party, is not chosen to do party work, does not determine party policy yet is not wholly without some party colour."—BryceOf all the political institutions of Switzerland, the Swiss Executive is not only most characteristically Swiss but also is a unique institution unparalleledin the constitutions of the world. In the words" of C.F. Strong, "No executive system in the world is so deserving our attention as that of Switzerland(for the founders of the Swiss Constitution of 1848 and 1874 would appear to have succeeded in a project which has baffled the ingenuity of all previousstatesmanship and especially that of France, namely to combine the merits and exclude the defects of both the parliamentary and non-parliamentary executivesystem)." Some of the peculiarities of the Swiss Executive are worth mentioning as they establish its uniqueness. Following are its peculiarities:A Plural ExecutiveUnlike that of U.K., U.S.A. and France where the supreme executive power is vested with the single individual, the Swiss Constitution vests the superiorexecutive authority of the Confederation in the Federal Council—a plural body. It consists of seven members who enjoy parity in powers and possess co-equalauthority. None of them enjoys a position analogous to that of the American President or the British Prime Minister. In the words of Huber, "The Collegialsystem is the traditional form of Government and the only one in use in Switzerland."1 Bryce also repeats the same view when he says, "In no other modernRepublic, is executive power entrusted to a Council instead of to a man." The framers of the Swiss Constitution considered27the American presidential system contrary to the ideas and habits of the Swiss because it was fraught with the danger of getting dictatorial. Moreover,this type of executive was in consonance with the traditions long established in the Cantons. The Swiss people are in the words of Mason "attached to governmentby councils and opposed to personal eminence."2Lengthy TenureLengthy tenure of the Swiss Councillors which has resulted into stability of the executive is also an important feature of the Swiss Federal Executive.Though the Councillors are elected for a period of four years only by both the Houses of the Federal Assembly, yet in actual fact, they enjoy much longertenure because of certain reasons— (a) Swiss deem it irrational to remove a valuable administrator; Prof. Dicey compares the Swiss Federal Council withthe Board of Directors of a Joint Stock Company who are not ordinarily ousted if they continue performing their duties conscientiously; (b) the choiceis very limited. Invariably, they are chosen from the Federal Assembly, which is not a numerous body. Apart from this, the Constitution lays down thatnot more than one member is to be chosen from each Canton. Moreover, the Cantons of Zurich, Vaud and Berne are apt to be represented by usage. Thus itis obvious that the range of selection is considerably limited; (c) non-partisan character also enables them to enjoy lengthy tenure; (d) finally the officeitself does not carry fabulous salary. The other amenities are also meagre. The Federal Councillor now gets 1,10,000 Francs per annum. The Chairman getsadditional allowance of 10,000 Francs for meeting entertainment costs for the year of his office. It is told of a federal councillor that when he was askedwhy he travelled in third class, he said, "because there is no fourth." Swiss people don't want public men to become glamorous. They lead a general lifewithout any statesmanly pomp and show like Americans.On account of the above reasons, the average tenure of the Swiss Councillors is more than ten years. Some of the Councillors like Signor Gruesppe Motta,Naeff, Welti and Dr.Phillippe Etter have held the office for 29, 27, 25 and 23 years respectively.Non-PartisanAs already said above, non-partisanship of the Councillors which has led to the stability of the Executive, is a remarkable feature of the Swiss Council.Though the councillors belong to the various political parties, yet they do not function on party basis. According to Bryce, "The Federal Council standsoutside party, is not chosen to do party work,28does not determine policy, yet it is not wholly without some party colour."In a party government, the entire executive is drawn from the same party if it holds majority in the Legislature. Political homogeneity is considered asthe most fundamental feature of a Parliamentary Government, hence the executive is apt to be chosen from the majority Party. In multiple party system,like that of France, the executive is drawn from the leaders of the various parties who join hands to form a coalition government. In both these countries,party affiliations keep a person in the ministerial seat. However in Switzerland, the Swiss Council constitutes a heterogeneous group of politicians whoare chosen for their capacity as administrators. The Swiss do not opt for skilful orators or shrewd tacticians. According to Bryce, "It is administrativeskill, mental grasp, good sense, tact and temper that recommend a candidate." Besides this, the Swiss Council neither formulates nor controls the policyof the Government. It simply conducts administration or advises the Federal Assembly on legislation in administrative capacity. As such, it is deprivedof the functions which induce a Parliamentary executive to dabble in active politics. It has accepted gracefully the position of a business body subservientto the Federal Legislature. Its members have, therefore, ceased to be staunch adherents of one party or the other. They work as a team of administratorsexhibiting a spirit of compromise and mutual collaboration in the interest of public good. This has enabled them to wield considerable influence. In thewords of Lowell, the influence of the Federal Council "depends to a great extent on the confidence in its impartiality and hence its position is fortifiedby any thing that tends to strengthen and perpetuate its non-partisan character."3 Bryce rightly emphasises, "in no other free country has the workingexecutive so little to do with party politics."Peculiar Position of the Chairman of the CouncilThe Chairman of the Swiss Council holds a peculiar position. One of the seven Councillors is elected by the Federal Assembly as the Chairman for a periodof one year only. The Chairmanship of the Council, in fact, rotates amongst the Councillors. The Chairman of the Council is designated as the Presidentof the Swiss Confederation—a courtesy title. He is, in fact, not even first among equals as he is one amongst them after a year. He does not enjoy anyspecial powers. He does, however, sit at the head of the table when the Council meets as an executive. He does exercise a casting vote in case of a tie.Some of the29ceremonial functions are also performed by him. He presides over ceremonial occasions. He receives rulers and ministers of the other States since such aformal function cannot be entrusted to a group of Ministers. He heads a department like other councillors. He represents the country at home and abroad.He has been equipped with very limited emergency and supervisory powers and responsibility for the Federal Chancellory according to the law on the organisationof Federal Administration of 1914. Dr. Munro has very well portrayed the authority of the Chairman of the Swiss Council when he says, "He is merely thetitular head of the Confederation and represents it on occasions of ceremony. But by custom, he has become a sort of general overseer, responsible forrespecting the work of the various Administrative Departments and the Council may authorise him to act in its name. This is sometimes done in emergenciesbut no act that the President performs in this capacity is valid until approved by the Council. He is in no sense a Prime Minister... His legal powersare virtually the same as those of other Councillors although he sits at the head of the table."4Dr. Munro is justified in holding the opinion that the Chairman of the Swiss Council is far inferior to the Prime Minister of England who is the creator,the preserver and the destroyer of the Cabinet and who is described as the "keystone of the Cabinet arch". We may add that his position and powers standno comparison with the American President who apart from acting as the "boss over his kitchen Cabinet" and possessing vast executive authority exercisesveto power over the legislation passed by the Congress. William Rappard has well said, "In short, his office has no true national significance, no specialprivileges nor even any particular influence." He does not get official car. Nor does he get a palatial House to live. Now each councillor draws 11000Francs a year whereas the Chairman draws 5000 more as entertainment allowance of holding the office. Thus the glamour and the grandeur associated withaugust offices, in the other parliamentary or presidential forms of government are denied to the Swiss President. Relative insignificance of this officehas been very well described by John Brown in the words "The Swiss citizens are apt to forget who their President is just now, although they are likelyto know by name the majority of the members of the Federal Council."5 Lowell describes him simply as the Chairman of the Executive Committee of the nationwho tries to keep himself informed of what his colleagues are doing and performs merely ceremonial duties of titular Head of the State. Rappard30rightly opines that his office has no true national significance. It confers no special privileges, nor even any particular influence."6Neither Parliamentary nor PresidentialThe Swiss Executive is neither Parliamentary nor Presidential in character. It differs radically from both of them. In fact, it avoids the defects of theboth and combines the advantages of both of these systems. In the words of Bryce, "The Council is not a Cabinet like that of Britain and the countrieswhich have imitated her cabinet system for it does not lead the legislature, and is not displaceable thereby. Neither is it independent of the Legislature,like the Executive of the United States and of other Republics which have borrowed therefrom the so-called 'Presidential System."Not a Parliamentary ExecutiveIt is in fact a misnomer to call Swiss Council a Parliamentary Executive. A Parliamentary Executive exists in a country if some of the essential requirementsof this form of government also are embodied in it. Two heads—nominal and real, responsibility of the Executive to the Legislature, political homogeneity,individual and collective responsibility and leadership of the Prime Minister are the cardinal features of a Cabinet (Parliamentary) form of government.British Cabinet is the example of such a form of the government. In Switzerland, on the other hand, the members of the Federal Council are not responsibleto the Legislature. Immediately after their election as the Councillors, they resign the membership of the Swiss Legislature. They do, however, sit inthe Legislature, participate in the debates actively but do not possess the right to vote in the House. They cannot be ousted by a vote of no-confidence.Since the Councillors are drawn from various parties hence the question of party solidarity entailing political homogeneity does not arise. In fact theCouncillors are entrusted with executive authority because of their administrative skill, mental grasp and common sense and not because of their politicalstanding in one party or the other. They are often seen crossing swords against each other on the floor of the House. The principle of "sink and swim"together can hardly work under such circumstances. Ousting a minister (Councillor) would not affect the entire Council. As such they are not collectivelyresponsible to the House.Defeat of a particular measure would not lead to the resignation of a Council as it is not considered a matter of prestige for them. They are used to pocketingtheir pride on such occasions. Hence neither the31collective nor the individual responsibility of the Councillors to the Legislature is ever sought for.As already discussed, the Chairman of the Federal Council too is hardly analogous to the Prime Minister of Great Britain. In fact, there is no comparisonat all. The Prime Minister is the creator, the preserver and the destroyer of the Cabinet. He is the "keystone of the Cabinet arch," "a moon amongst thelesser stars", "sun around whom the rest of the ministers revolve like planets." But the Chairman of the Federal Council is simply "a first among equals."He is merely a "Chairman" of the Council vested with ceremonial functions. The Council is not his creation. Nor can he throw out any of the Councillorsat his discretion. They serve their term so long as they retain their administrative capabilities. Lowell has well observed about the Chairman. "He issimply the Chairman of the Executive Committee of the nation and as such he tries to keep himself informed of what his colleagues are doing and performsthe ceremonial duties of the titular head of the State." No single individual can be categorised as the head of the State, unlike U.K. where King is thehead of the state though P.M. is the head of the Government.Thus the Federal Council lacks the characteristics of a Cabinet form of Government. The only similarity with the Cabinet system is that the Councillorssit in the Houses and participate in their deliberations.Not a Presidential type of ExecutiveStability of the Swiss Executive and its non-displaceability by the Legislature, lack of its power of dissolving the Legislature, and non-membership ofthe Assembly, after its election as Federal Council, are some of the similarities between the American presidential executive and the Swiss Executive.The dissimilarities of the two Executives are no less prominent. The Federal Council unlike that of American Presidential Executive does not constitutea separate branch of the Government. The Councillors unlike the members of the American cabinet participate in the deliberations of the Legislature thoughthey do not possess the right to vote. The theory of Separation of Powers is the cardinal feature of the American governmental system, but the Swiss Council'sactive participation in the proceedings of the Assembly is a clear violation of the theory. None in the Swiss Council holds an analogous position to thatof the American President. The American President is the head of the Government as well as that of the State. As such the Chairman of the Swiss Councilcan hardly be compared with the President of U.S.A. The32American President constitutes his Cabinet which is known as his kitchen cabinet or his family but the Chairman of the Council does not possess any suchpowers. The Swiss Council is elected by the Federal Assembly unlike that of the President of U.S.A. who is elected by a specially constituted ElectoralCollege. By and large the American Executive works, independently in administrative matters. A few indirect congressional checks on the powers of the Presidentdo, however, exist. In Switzerland on the other hand, the Federal Council functions in close harmony with the Legislature and is positively and directlyaccountable to it.Besides, the American President possesses the veto power on the Bills passed by the Congress but no such power is vested with the Federal Council or itsChairman. Instead the Swiss citizens possess the veto power over the bills as they are to be referred to them for their final verdict.It is thus obvious that unlike that of Presidential Executive of U.S.A., the Swiss Federal Council works in close collaboration with the Legislature. Ithas been very correctly described as the "Executive Committee of the Swiss Parliament." While comparing the Swiss Council with the American Presidentialsystem, Bryce has so observed "...Neither is it independent of the Legislature like the executive of the United States and of other Republics which haveborrowed therefrom the so-called Presidential system."We can, therefore, conclude that the Swiss Executive is neither Presidential nor Parliamentary in character. It combines the advantages of both the systemsviz. (1) The permanence and stability leading to the continuity of policy - the merits of Presidential type of Government are ingrained in it. (2) Harmonybetween the Executive and the Legislature said to be the chief merit of Parliamentary Government also is discernible in it. (3) Its non-partisan characterwhich enables it to play an effective role as an administrative body is an additional advantage, and differentiates it from both of these prevailing governmentalsystems. Bryce emphasises this version. Thus Swiss Executive is known for its uniqueness—a blend of merits of both the systems and non-partisan in character.Peculiar Relations between Federal Council and Federal AssemblyThe uniqueness of the Swiss Executive lies also in its peculiar relations with the Federal Assembly. It is not independent of the Legislature, as is thecase in the U.S.A. where the theory of Separation of Powers prevails. It is not so dependent upon the Legislature as is the case in the33U.K. where the members of the Cabinet are the members of the Parliament as well and remain in power so long as they hold the confidence of the House ofCommons. In Switzerland, a mid-course has been adopted. The Federal Councillors have not to be members of either House of the Federal Assembly. If theyhappen to be the members at the time of election, they must vacate their seats after getting elected to the Federal Council. They do not possess the rightto vote though they sit in the Assembly and participate in its proceedings. They cannot be ousted from office through a vote of no-confidence. When theAssembly refuses to pass a bill initiated by the Council or effects many changes in it, the Council does not make it a prestige issue. It obeys the directionof the Legislature with good grace. Dr. Munro has correctly observed: "If the Councillors find themselves outvoted on any matter, they do not resign, asin France or England; they merely pocket their pride and obey the will of the legislative bodies with as good grace as they can muster."7In fact, the Federal Assembly takes the Federal Council as a "sort of glorified legislative drafting bureau." The policy emanates originally and finallyfrom the Assembly. The Council does not have initiative. Previous sanction of Assembly or its subsequent ratification, is essential when the Council exercisesthe prerogatives relating to foreign affairs, armed forces or ordinary conduct of public administration. The Assembly may delegate full powers to the Councilin emergency. It may also issue directions indicating the manner in which the Council's functions are to be discharged. The Council is expected to sendannual report to it and finally get it passed by it. The Assembly may ask for a special report from the Council which must be supplied unhesitatingly.Prof. Dicey has very aptly described the relation between the Federal Council and the Assembly in these words: "The Council is expected to carry out anddoes carry out, the policy of the Assembly and ultimately the policy of the nation, just as a good man of business is expected to carry out the order ofhis employer."8But with all this, we should not carry the impression that the Federal Council is a mere servant of the Assembly. It may be a legal truth but is certainlya political untruth. According to Bryce, "The Federal Council exerts in practice almost as much authority as do English and more than do some French Cabinetsso that it may be said to lead as well as follow." Federal Council is a body of experts who are equipped with administrative skill, mental grasp and soundcommon sense. On the other hand, modern legislation is often complicated.34Hence the Federal Assembly is not competent to deal with it. It leads to the delegation of legislative initiative to these Councillors and subsequent enhancementof their powers and prestige. Even as regards ordinary legislation, the Federal Council is "a guide as well as instrument and often suggests as well asdrafts measure."9Analytical study of the Swiss Constitutional History during the present century makes it crystal clear that the powers of the Federal Council have steadilyincreased. The introduction of Proportional Representation has turned the Federal Assembly into an arena of political higgling and haggling between multiplegroups and parties that find place in it. Thus Assembly's prestige is on the wane and that of council on the ascent. The two world wars and economic depressionof 1930's also led to the enhancement of the powers of the Federal Council. In fact, the Federal Assembly itself delegated 'blanket' authority to the Councilto tide over the economic crisis and maintain Switzerland's traditional neutrality during wars. The powers once delegated were not withdrawn. Owing tothe reasons mentioned earlier the Federal Council according to Andrae "gradually came to wield a quasi-absolute power." In other words, it has ceased tobe a subservient anisation and Functions of the CouncilThe Swiss Council, as already stated, consists of seven members who are chosen by the Federal Assembly in a joint session of the two Houses for a periodof four years. Though it is not required by the Constitution, the Federal Councillors are always elected from the Federal Assembly. However, they tenderresignation from the membership of the Assembly, as soon as they are elected Federal Councillors. According to Article 96 of the Constitution, not morethan one person is to be elected as a Councillor from each Canton. It is customary to have one member each from the Cantons of Zurich, Berne and Vaud.All the three nationalities German, French and Italian are accorded representation in the Council in the ratio of 4, 2, and 1.Attempts to resort to direct election have been twice made through Referendum, but they have proved unsuccessful. People of Switzerland have opposed directelection of the Councillors on the grounds that popular election would accentuate party factions, exercise baneful influence on the range of policies andeffect radical changes in the character of public life.One of the members of the Council is annually elected as the Chairman while another is chosen as Vice-Chairman. Conventionally,35the Chairman of the Federal Council is not eligible for election for two consecutive years and the Vice-Chairman succeeds the outgoing Chairman. By anotherConvention Chairmanship and Vice-Chairmanship rotates amongst the Councillors in order of seniority.Functions of Federal CouncilThe functions of the Federal Council can be enumerated under four heads - Legislative, Executive, Financial and Judicial.LegislativeIn Legislative field, Federal Council plays quite an important role, despite the fact that the Councillors have to resign the membership of the Assemblyafter election to the Council. Its legislative powers are as follows: (a) They prepare and initiate measures either on their own accord or at the requestof the Federal Assembly and then pilot them through the Houses. (b) Though they do not have vote in the Houses yet they participate in the proceedingsof the Houses and reply to the questions. (c) They attend the meetings of the various Parliamentary Committees which examine the Bills brought before theLegislature and due to their common sense and mental grasp exercise considerable influence on the bills and in many cases have decisive voice. (d) Theyfurnish an opinion on the bills introduced by the private members, on a reference made to them. In fact, no Bill comes before the Legislature unless itis first considered by an appropriate Councillor.It may, however, be stated that unlike that of Great Britain where a defeat on a Bill leads to resignation of a ministry, in Switzerland, the Councillorspocket the insult if the measure initiated by them is defeated. Dr. Munro has very well described this fact: "The Swiss Federal Councillor is like a lawyeror an architect, in that his advice is sought and usually heeded, but he is not supposed to throw up his job when his employer insists on having somethingdone differently."10FinancialThe Federal Council administers, Federal finance as well. As such (a) It prepares the annual budget and presents it to the Federal Assembly. (b) It hasto see that the budget is passed by the Assembly, (c) It collects the revenues and supervises the expenditure appropriated by the Legislature, (d) It managesthe national undertakings such as Railways.ExecutiveThe Constitution vests the supreme executive power in the Confederation. As such, it exercises the following executive powers: (a) It is responsible forthe enforcement of laws and ordinances passed by36the Federal Legislature. (b) It conducts the foreign affairs of the Confederation. (c) It maintains internal peace, law and order. (d) It appoints all officersof the Confederation except those who are appointed by the Federal Assembly in a joint session. (e) It carries on the administration of federal affairsin conformity with the laws of the Federation. (f) It executes the decisions of the federal tribunal and arbitrates the awards on disputes between theCantons. (g) It protects the observance of Cantonal Constitutions. (h) It exercises supervisory control over the Cantonal governments, for securing theenforcement of federal law. (i) It examines the treaties which the Cantons enter into with each other or with foreign countries and approves them if itdeems fit. (j) It safeguards the external interests of the Confederation, ensures the external safety of the country and maintenance of her independenceand neutrality. (k) During the recess of the Federal Assembly, if emergency arises it can call out troops for meeting it. If the number of troops exceeds2000 men or if they remain mobilised for more than three weeks, the Council must convene session of the Assembly immediately. (l) The Council controlsFederal army and all its branches of administration. (m) It examines the laws and ordinances of the Cantons that have to be submitted to it for its approvaland supervises the branches of Cantonal administration where such supervision is entrusted to it. (n) It submits regularly a report on its work in thesphere of domestic and foreign affairs to the Federal Assembly at each session and makes special report on other occasions if required to do so.Emergency PowersIts emergency powers have also not been less significant. The powers given to it by the Assembly during wars of 1914 and 1939 made the council the solelegislature and put a curb on referendum. Codding describes it as "one of the most sweeping grant of powers to any democratic executive whose country wasnot actually engaged in the war".11JudicialThe Federal Council is equipped with powers of judicial nature as well, though some of its powers were drastically curtailed in 1914. Since AdministrativeCourts do not exist in Switzerland, certain administrative cases, i.e., the cases arising from the public actions of federal officials, are brought beforeit. It possesses appellate jurisdiction over decisions of the Cantonal Governments in cases relating to discrimination in elementary schools, differencesarising out of treaties relating to trade, military taxation, customs, Cantonal elections, etc.37There has thus been a steady growth of the powers of the Federal Council. Keeping in view the ever growing powers of the Federal Council, Lowell correctlyremarked the Federal Council "may almost be regarded as the mainspring and is certainly the balance wheel of the national government."12The Civil Service in SwitzerlandDespite the increase in the Central Government's activities and a trend towards centralisation the Swiss Civil Service is not a numerous body. It is becauseof the fact that the federal measures are executed by the Local authorities. The Federal officials work in the Cantons only in the Post Office, Railwaysand certain special branches of administration. The two global wars did, however, add to their strength.These federal officials, (except a few who are appointed by the Federal Assembly), are appointed by the Federal Council and are dismissed by it for anydereliction of duty. Higher posts are filled up for a period of three years, in the first instance though they are subject to further extension. In fact,they are more or less permanent. Appointments and dismissals are not made out of sheer political considerations. Salaries of services in Switzerland arevery meagre. Hence very few Swiss opt for Civil Service. Lower appointments are made on competitive basis. Railway officials and other lower Railway employeesare appointed by the Federal Railway Administration.Federal officials are not eligible for election to the Federal Legislature and the Contonal officials to the Cantonal Legislatures. They are, however, allowedto canvass during elections and take part in politics. Surprisingly this unusual practice has not led to the emergence of evils as politics in Switzerlandis businesslike.The Federal Secretariat (Chancellory)The Federal Chancellory was established in 1931, with Chancellor as its head. The Chancellor is elected by the Federal Assembly for a period of four years,though in fact, he continues in office until he retires. The Chancellory functions under the superintendence of the Swiss President and the ultimate supervisionof the Federal Assembly. The Chancellor is responsible for the supervision of shorthands, and translation: keeping of records, organising of elections,referendum and initiative, countersigning of federal acts and the organisation of federal elections. Apart from these functions, he performs the dutiesof the clerkship of the federal council and enjoys the office of the "clerk at the table" of the two Houses and of the Federal Assembly in a joint session.He is the head of the Civil Service as well.38References1. Hans, Hubcr: How Switzerland is Governed, p.55.2. Mason, John Brown: Switzerland and Foreign Government, Ed. F.M. Marx, p. 873.3. Lowell,: A.L.: Government and Politics in Continental Europe, pp.202-03.4. Munro, Governments of Europe, p.741-42.5. Mason John, Brown: Switzerland and Foreign Governments, p.374.6. Rappard, William: The Government of Switzerland, p.379.7. Munro, Governments of Europe, p. 783.8. Dicey: The Law of Constitution, p. 611.9. Bryce: Modern Democracies, Vol. I, p. 97.10. Munro: Governments of Europe, p. 743.11. Codding, C.A.: The Federal Government of Switzerland, p. 85.12. Lowell, A.L.: Governments and Parlies in Continental Europe, Vol. I, p. 378.395 THE FEDERAL JUDICIARY"To endow it with the right of disavowing federal statutes would therefore be to impose on a much weaker court a much heavier burden than that under theAmerican judiciary sometimes seems to be staggering today."—Rappard, W.E.The Federal TribunalThe Federal Tribunal is the youngest of the three organs of the Swiss Federal Government since it was created by the Constitution of 1874. A court for theadministration of justice in the Federal sphere did, however, exist even earlier but it was not vested with the power of resolving conflicts between theConfederation and the Cantons or the Cantons themselves. Federal Council and Federal Assembly heard such cases and decided them. The Constitution of 1874did not effect radical change in the powers and jurisdiction of the existing Court But in actual practice its powers were considerably increased. The subsequentconstitutional amendments further enhanced its powers. The court first assembled in position and OrganisationArticle 107(2) of the Constitution makes it clear that the organisation of the Federal Tribunal, the number of its members and deputy members, their termof office and pay will be fixed up by the law. The law fixed the number of judges between 26 and 28 and the number of alternates between 11 to 13. At presenthowever, the number of judges and alternates is 26 and 12 respectively. The judges as well as alternates are elected by both the Houses of the FederalAssembly, meeting in a joint session for a period of six years. In actual practice, they serve as judges till they wish to hold to the judicial office.The Constitution does not prescribe any judicial qualifications for the judges. Anybody who is40eligible for contesting election for the National Council is allowed to contest for a seat in the Federal Tribunal. According to the Constitution, the FederalAssembly while electing judges and alternates (deputy Judges) must see that all the three official languages are represented on it. The Court elects aPresident and Vice-President for a period of two years. They are not re-eligible immediately after the completion of their terms. It may be pointed outthat election of the judges has, in no way, impaired the independence of judiciary in Switzerland. Generally legal luminaries have been elected as thejudges. The judges have not proved puppets in the hands of the Assembly. Bryce has correctly observed, "While political predilections may sometimes bepresent, it is not alleged that they have injured the quality of the bench any more than the occasional action of the influences tells on the general confidencefelt in England and (as respects the Federal Courts) in the United States in the highest courts of those countries."Their Salaries, etc.They are paid 53,000 francs a year as salary with a pension. The President gets 3600 francs more than the other judges. The Vice-President gets 2400 francsas additional payment. The Deputy Judges are not paid any salary. They get allowances for each working day. The judges get pension after 60 years of ageprovided that they have served at least for ten years. Pensions vary from 40 to 60 per cent of their salary. Their salaries are meagre as compared withthose given to the judges in England and America.The Federal Tribunal is the only national court in the country. It does not have its branches in the Cantons, unlike that of American Supreme Court whichhas its branches in the States. The Court is, however, divided into assizes for criminal cases. The Tribunal has no staff for the execution of its awards.The Federal Council itself executes the decisions of the Tribunal. This is unlike that of American Supreme Court which maintains its own staff for theexecution of its awards.Seat of the TribunalThe Tribunal has been established at Lausanne—the capital of Vaud which is a French speaking Canton. It was in fact a graceful concession to the Frenchspeaking people who were not happy over the establishment of Federal Council and Federal Assembly at Berne—a German speaking Canton. Moreover, they thoughtit advisable to keep the judiciary away from the political atmosphere of Berne.41Its WorkingThe Tribunal is divided into three divisions, each consisting of at least eight judges for trying cases pertaining to civil laws and public laws. Criminalcases dealing with treason are decided by the Tribunal with the assistance of jury which consists of 12 members. Each member of the jury is given dailyallowance of 15 francs. Records of the Court are maintained in three languages.Its JurisdictionThe Federal Tribunal is vested with both original and appellate jurisdiction.Its original jurisdiction extends to civil, criminal, administrative and constitutional cases.Original Jurisdiction(a) Civil Cases(i) The civil jurisdiction of the Federal Tribunal extends to cases involving conflicts between the Confederation and the Cantons or between the Cantonsthemselves. It hears cases where a private person or corporation sues the Confederation or a Canton or where the Confederation or a Canton sues a privateperson or corporation if the object of the dispute is of such importance as shall be determined by the Federal legislation and if such corporations orpersons are plaintiffs.(ii) It takes up cases relating to loss of nationality and also disputes upon the right of citizenship of a commune.(iii) It also decides cases between individuals where the amount in litigation exceeds 10,000 francs and when two parties request to take jurisdiction.(iv) Article 114 has further added to its jurisdiction. It has been empowered to ensure the uniform application of laws concerning commerce and transactionsaffecting moveable property, suits for debt and bankruptcy, protection of copyrights and industrial invention.(v) Article 64 confers a general power on the confederation to legislate on any field of civil law. The article ipso facto enlarges the civil jurisdictionof the Federal Court.(b) Criminal CasesAs regards the original criminal jurisdiction of the Court it tries the following cases:42(i) Cases of high treason, rebellion or violence against Federal authority;(ii) All crimes against law of nations;(iii) Political crimes and offences which are the cause and consequence of disorders-necessitating armed Federal intervention;(iv) Offences committed by officials appointed by a Federal authority when brought before the Tribunal by that authority;(v) Cases referred to it by Cantonal government with the ratification of Federal Assembly;(vi) Cases such as counterfeiting and voting frauds.In hearing such cases, the Court holds assizes from time to time at fixed centres in the country. In these assizes only three judges sit, along with a juryof 12 men chosen from the neighbouring villages. The concurrence of 5/6 of the jury is essential to convict a person. For exercising criminal jurisdiction,the court sits in four Chambers—the Federal Criminal Court, the Court of Accusation, the Court of Cessation and the Extraordinary Court of Cessation of7 judges. The Federal Court of Accusation prepares the business for the Federal criminal court and decides if there is prima facie case and decides theplace of criminal jurisdiction.(c) Constitutional CasesThe court possesses jurisdiction over Constitutional matters though to a limited extent.It takes up the following Constitutional cases:(i) Conflicts of competence between Federal Authorities on the one hand and Cantonal authorities on the other hand. It upholds Federal Constitution againstthe Cantonal and the Cantonal constitutions against ordinary laws and decrees of cantons.(ii) Disputes between Cantons in matters of public law.(iii) Complaints of violation of the Constitutional rights of citizens, provided both by Cantonal and Federal Constitutions.(iv) Complaints by individuals of violation of international treaties and agreements.(v) Political crimes and misdemeanors which are either the cause or consequence of disorders and disturbances necessitating armed Federal intervention.In all the above disputes the court applies the laws and decrees adopted by the Assembly and the international treaties approved by the latter.43(d) Administrative CasesIt possesses limited jurisdiction in this field as well. Formerly, these cases used to be taken up by the Federal Council. Since 1925, these powers havebeen transferred to the Federal Court. In this capacity, it decides disputes relating to the legal competence of public officials and also hears railwaysuits and administrative disputes in matters of taxation.Appellate Jurisdiction (Civil Cases)The Federal Assembly has equipped the Federal Court with appellate authority by allowing it to hear appeals from the Cantonal courts, in cases arising underfederal laws provided that they involve a sum of 8,000 francs or more. In the words of Rappard, "This is the most important function of the Federal Tribunalbecause in the absence of inferior Federal courts, the unity of civil jurisprudence could not otherwise be assured in Switzerland."1As Guardian of the ConstitutionThe Federal Courts are generally the guardian of the Constitution. The Swiss Tribunal, on the other hand, possesses limited judicial review. It is empoweredto declare Cantonal law unconstitutional if it conflicts with the Federal Constitution or even Cantonal Constitution. It does, however, uphold the FederalConstitution and statutes against Cantonal Constitutions and laws. It does even protect the Cantonal Constitution against Cantonal laws and administrativeacts. It is thus evident that the Swiss Federal Court does not possess power to declare federal law unconstitutional if it violates the Constitution. Thisright is earmarked for the Federal Assembly subject to the final verdict of the people through Referendum. However, Professor Huns Huber is of the viewthat the Court will make an effort to interpret laws whose meaning is not clear in such a manner as to honour the intent of the parison of the Federal Tribunal with the American Supreme CourtA critical though brief analysis of the Federal judiciary in both these federal countries would reveal certain striking points of differences between thetwo. The judicial systems of these two countries differ with regard to the number of judges, their organisation and working. We discuss below the differencesbetween the two on the basis of these points.(a) The Swiss Federal Court is the only Federal Court in the country. It does not have its branches in the Cantons. The American44Supreme Court on the other hand, has a set of subordinate courts - both Circuit and district - located throughout the country.(b) The decisions of the Swiss Tribunal are executed by the Federal Council itself. It does not have separate staff for this purpose. The American SupremeCourt has a regular federal staff to execute its decisions.(c) As regards their appointments, the judges of the Swiss Tribunals are elected by the Federal Assembly, in a joint session whereas the judges of the SupremeCourt of U.S.A. are appointed by the President with the concurrence of the Senate.(d) The judges of the Swiss Tribunal are elected for a period of six years whereas the judges of its counterpart in U.S.A. are appointed for life. The formercan be removed by the Assembly whereas the process of impeachment, a cumbersome procedure, is provided for the removal of the latter. It may, however,be pointed out that judges of the Swiss Tribunal are also re-elected and are not removed according to the whims and the vagaries of the Swiss Legislators.Hence in actual practice they also enjoy long tenure.(e) The Swiss Tribunal consists of 26 judges including the President and the Vice-President and 12 alternates whereas the American Supreme Court is composedof 9 judges including the Chief Justice.(f) The real difference between the two lies, as regards their powers. The Swiss Federal Tribunal possesses limited power of judicial review unlike thatof the Supreme Court of U.S.A. which is the saviour of the Constitution in the true sense. The former can declare only Cantonal laws unconstitutional ifthey are repugnant to the Cantonal and Federal Constitutions and Federal laws. It cannot question the legality or constitutionality of the Federal Statutes.The latter, on the other hand, on account of its vast power of judicial review is termed as...third Chamber." It can declare any law of the Congress, anyexecutive decree and any State law as invalid if it contravenes the Constitution.Moreover, the original jurisdiction of Swiss Federal Tribunal differs considerably from that of its counterpart in U.S.A.(g) The Swiss Federal Tribunal has not played any important role in the development of the Constitution of the country though the Supreme Court of the U.S.A.has played a vital role in this direction. In the words of C. J. Hughes, "The Constitution is what the judges say it is."As already stated the Swiss Tribunal possesses original jurisdiction in civil, criminal, administrative and constitutional matters. Besides,45cases pertaining to violation of international treaties and agreements come before it. It decides conflicts of competence between federal and cantonal authorities.It possesses appellate jurisdiction as well.The American Supreme Court is not equipped with original jurisdiction of such a vast magnitude. It is limited. It does not possess original jurisdictionin administrative and criminal cases. Nor its civil jurisdiction extends to the type of cases entrusted to the Swiss Tribunal. It does possess concurrentjurisdiction with the state High Courts in cases involving 3000 dollars or more.Keeping in view its limited judicial review authority it is a misnomer to designate Swiss Federal Tribunal as a Supreme Court. The proposals to enhancethe powers of the Swiss Federal Tribunal have been rejected in unequivocal terms. It is apprehended that any such alteration in the present judicial set-upwould impose a restriction on the 'sovereignty of people' whose verdict on the Federal Law decides its fate. Thus the Federal Tribunal has not been ableto command prestige and enjoy independence of the American Supreme Court.Reference1. Rappard William, The Government of Switzerland, p.90.466 DIRECT DEMOCRACY IN SWITZERLAND"It is the surest means of discovering the wishes of the people and excellent barometer of the political atmosphere"—BonjourSwitzerland is perhaps the only country in the world where direct democracy still persists. In the rest of the countries of the world where democracy isestablished, representative form of government exists. The people rule indirectly through their chosen representatives. No doubt Swiss democracy also hasrepresentative Legislatures, but the latter do not have final say in the legislation. The people through the well known devices of Referendum and Initiativetake direct part in the legislation of the country. The legislature is, thus, relegated to the background. In the words of Andrae, in Switzerland, "democracyremains direct and in delegating their powers the Swiss people do not abdicate them. They always reserve the right to have the last word by referendumand perhaps the first word too by means of the popular initiative procedure." These devices of Referendum and Initiative have been adopted in some othercountries also but they serve as frills to adorn the constitutional costumes. They do not constitute the warp and woof of the political fabric, as is thecase in Switzerland. According to John Brown, "they have become virtually Swiss institutions."LandsgemeindeIn some of the Cantons like Appenzell, Glaris and Unterwalden direct democracy appears in truer colours as the institution of 'Landsgemeinde' is still leftalive with its age-old traditions and colourful practices. Prof. Brooks describes the Landsgemeinde as "the most picturesque and fascinating of all politicalinstitutions in Switzerland, and perhaps in the world." It is a sort of town meeting, which consists of citizens of the area. It holds its meetings annually47under the presidentship of an annually elected Landamman. The entire political authority of the community is vested with it. Attendance in the meeting ofthis popular Assembly is compulsory at least theoretically. Even a fine is imposed in some of the Cantons on the absentees who deliberately fail to attendits meetings. There is not much of debate in this popular assembly. Its preliminary work is done by an advisory body. This popular Assembly which is therepository of the said Cantonal authority makes laws, passes resolutions, decides current questions like those concerning finance and public works, electsofficials, revises Constitutions, levies taxes, creates new offices and determines their salaries. Thus it is obvious that the Landsgemeinde possessesall those powers which a sovereign legislative body is supposed to possess. In the words of Lloyd, "the Landsgemeinde Cantons have the purest form of democracyin which the sovereign power of the people is directly exercised in all the critical acts of government by the full assembly of citizens forming the largestand most conspicuous example of what Rousseau and certain other political philosophers regard as the only democracy."It may, however, be pointed out that the Landsgemeinde can exist only in small cantons and there also their future is uncertain. Rappard has rightly pointedout, "It is difficult to believe that it can survive indefinitely except perhaps as a museum exhibit of primitive democracy or rather as cherished remainderof the days gone by."Referendum. What it means?Referendum means 'refer to the people.' It is an instrument of negative action. It rectifies the acts of commission of the legislature by enabling the electoratesto approve or reject a legislative measure proposed or already passed by the legislature. There are two kinds of referendum -optional and obligatory (compulsory).In the case of obligatory referendum, the laws passed by the legislature do not become law until and unless the same has been approved by people. In thecase of optional referendum on the other hand, the bill is referred to the people if a demand is made for that purpose by a specified number of votes.How it works in Switzerland?Compulsory constitutional referendum was introduced according to the Constitution of 1848. All amendments to the Federal and Cantonal Constitutions aresubjected to the compulsory referendum. Article 114 of the Constitution makes it specifically clear that a constitutional amendment shall be effected onlywhen it is accepted by a majority of the Cantons. Each full Canton is entitled to one vote and each half48Canton only half a vote. The vote of a Canton is determined by a majority of the electors' voting.How Compulsory Constitutional Referendum is Practised?If both the Houses of the Federal Assembly agree to revise the Constitution, either wholly or partially, they draft the proposed new Constitution if itis a total revision or the particular amendment or amendments if it is a partial revision, and submit it to the vote of people and Cantons. If a majorityof the Cantons approve of it, the said revision is effected.If the Houses differ on the proposed revision, it is deemed essential to decide whether the proposed revision is needed or not. Hence the proposal of revisionis first referred to the people to know whether the revision is needed or not. If the people approve of it by a majority vote, Federal Assembly is dissolvedand new elections take place. After the elections, newly elected Houses proceed to consider the proposed revision. If both the Houses of the Assembly approveof it - a foregone conclusion - the said revision is placed before the people and the Cantons for their approval. If the majority of the people and theCantons pass it, the said amendment comes into force.Optional ReferendumOptional Referendum was introduced by the Constitution of 1874. It is used for the passage of federal laws and general binding federal decrees and since1921 for ratification of international treaties. The federal laws which are not declared urgent by the Assembly are to be submitted to the Referendum if30,000 Swiss voters or eight Cantons so demand it. It may, however, be pointed out that the Federal Assembly misused the urgency provision during war andeconomic crisis. Hence a Constitutional amendment of November 11, 1949 curtailed this power of Assembly by specifying that 50,000 voters or eight Cantonscan call for a Referendum even on a law certified by the Assembly as urgent. Such a law will cease to operate if within a year, it is not approved by thepopular vote. Thus the Assembly can no longer abuse the 'urgency' clause.In 1921, the optional referendum was provided for international treaties concluded for a period of more than fifteen years or indefinite period.Referendum in the CantonsAs already stated, Constitutional Referendum is compulsory in all Cantons. Legislative Referendum is also compulsory in ten full and one49half Cantons. It is conducted on the demand of a specific number of voters. In the rest of the Cantons, Referendum is not practised as laws are passed directlyby the people in the "Landsgemeinde".How the requisite signatures are obtained?Every federal law or the international treaties are published in the Federal journal and sent to the Cantons for circulation among the communes. Within90 days of their circulation 50,000 Swiss citizens or eight Cantons may demand its submission to the Referendum. The requisite signatures of the citizensare procured through reply paid postcards sent to them by the Federal Council. When the requisite number of signatures reach the Federal Council, the lawin question is published and circulated among the people. Four weeks after the publication of the law, a Sunday is fixed for the voting. The Cantonal authoritiesare entrusted the task of making arrangements for voting though ballot papers are supplied by the Central Government. There is not much of hectic activityon the polling day. Complaints of impersonation and corruption are rarely heard.InitiativeIt is a positive device to rectify the acts of omission of the legislature. It was introduced in Switzerland in 1892. Initiative is of two types - formulativeand unformulative, i.e., couched in general terms. A formulative initiative proposes an amendment in the form of regularly drafted bill. An unformulativeinitiative, on the other hand, makes only a general proposal of a desired amendment.How it works in Switzerland?Initiative is provided for Constitutional amendments only. A complete revision of the Constitution or specific amendments in it can be made by popular initiativeon the demand of 50,000 Swiss citizens. The procedure for total revision differs from that of partial revision.Total Revision through InitiativePrior to 1977 if total revision of the Constitution was demanded by 50,000 Swiss citizens, the question whether there should be a revision of the Constitutionor not, was referred to the people for their vote. In 1977 the figure of petitioners was raised from 50,000 to 1,00,000. If majority of the citizens votingat a referendum favour the total revision, federal assembly is dissolved and new elections take place. The newly elected Assembly drafts the new Constitutionand if it approves of it, it refers it to the vote of the people and the Cantons. If majority of the people and the Cantons pass it, the Constitution isrevised in toto.50Partial Revision through unformulative InitiativeIf the demand for partial revision is unformulated, the Federal Assembly if ratifies it, frames the amendment and refers it to the people and the Cantonsfor their approval. If majority in both the cases approves of it, the amendment takes place.If the Federal Assembly does not approve of the amendment, the question whether partial revision be made or not is referred to the people for their decision.If majority of the people voting favour the revision, the existing Federal Assembly which had formerly disapproved of the amendment, drafts the amendmentconforming to the popularly initiated proposal and then submits it to the people and the Cantons for their verdict. If the majority of the people and theCantons accord their approval, the said revision is effected.Partial Revision through Formulative InitiativeIf the proposal for partial amendment is formulated one, it is first to be submitted to the Federal Assembly for its approval. If the Assembly approvesof it, it is referred to the people and the Cantons for their vote. If both approve of it, the amendment is effected.If the Houses of the Federal Assembly differ, or do not approve of it, they may recommend to a Referendum either the rejection of the said proposal or counter-proposalsand submit them along with the original popularly initiated proposal to the people and Cantons. Whichever proposal the people and the Cantons accept isimplemented.No Legislative Initiative in the ConfederationAs already said, the Swiss Constitution does not make provision for initiative for non-constitutional federal legislation. It is, in fact, a serious anomalythough not a great handicap. Ordinary legislative revisions are initiated by the people under the guise of constitutional revision. Provisions relatingto the prohibition of a noxious drink, old age insurance, production of wheat, stoppage of gambling houses, slaughtering of animals, etc., have been broughtbefore the Assembly in the form of 'Constitutional Initiative'. Dr. Finer has very well observed, "the Constitutional Initiative (in Switzerland) is wideenough to include ordinary legislation when proposed in a Constitutional amendment and this which is found in some States of the United States also isa defect rather than a merit - to put ordinary laws into Constitution."Initiative in the CantonsExcept Geneva and the Cantons where laws are made in their Landsgemeinde, all other Cantons have provided for both legislative51and constitutional initiative. Fewer signatures are required for a legislative than for a constitutional initiative. For example, in Berne (Canton) 15,000and 12,000 signatures are to be requisitioned for a constitutional and legislative initiative respectively. In some of the Cantons like Vaud and Fribourge,6,000 signatures are needed both for the constitutional and legislative Initiative. In Uri, 150 voters are required for the purpose whereas Glaris needsonly one voter.A Critical Estimate of Working of ReferendumThough Referendum has been a great success in Switzerland due to some of its inherent advantages, yet it has not been safe from the perennial shafts ofthe critics. We discuss below the striking advantages of the system, as well as its disadvantages as pointed out by the critics.Advantages(a) It upholds the sovereignty of the peopleIt enables the people to express their opinions and ideas directly. In a representative democracy public opinion is coloured by the partisan influencesof the press, the platform and the propaganda. Hence, the best way to know the genuine public opinion is the device of the Referendum.(b) Importance of Political Parties minimisedIt is further contended that the importance of political parties will be considerably minimised and consequently partisan spirit curtailed when the ultimateauthority of passing and rejecting a measure rests with the people. A veto in the hands of the people eclipses not only the political parties but alsochecks the vagaries of the majority party in the legislature. There have been quite a frequent rejection of the bills passed by the Swiss Federal Assemblywhich clearly reflects that the people did not see eye to eye with their representatives.(c) Safeguard against tyranny of Majority PartyIn a representative democracy, majority party rules. Minorities are often ignored or remain at the mercy of the majority party. Through the technique ofReferendum, they get ample opportunities to muster strength and defeat the measure by the popular vote.(d) Imparts Political Education to the massesIt serves as a valuable method for imparting political training to the Swiss citizens. It inculcates among them a keen sense of responsibility. A feelingof share in law-making stimulates their patriotism. In the words of Hans Huber it is "a bond of union and a training for the people."152(e) Greatest moral authority behind lawsA law passed by the people themselves is more willingly obeyed by them than the one passed by the legislature. Thus such a law commands greater moral authoritythan the one emanating from the legislature.(f) There is no time lagThrough these methods people remain in touch with the Legislature constantly. Bryce has correctly opined, that this instrument of direct legislation "helpsthe legislature to keep in touch with the people at other times than at general election and in some respects a better touch, for it gives the voters anopportunity of destruction or distorting influence of party spirit."(g) Resolves disputes between two Chambers of the LegislatureIt is the best device of resolving deadlocks between the two chambers of the Federal Assembly which have been vested equal powers. In case of differenceof opinion between the two Houses persisting, resort to referendum is made and the matter is so decided by majority vote.(h) Veto power must rest with somebodyIn order to check the vagaries of the legislature, veto power must rest with somebody. In the U.S.A. the veto power is vested with the Executive. In Switzerland,since veto power has not been vested with the Executive, people have been given the privilege of giving verdict on the Bill passed by the legislature.Bryce remarks, "There must somewhere in every government be a power which can say the last word, can deliver a decision from which there is no appeal."In a democracy it is only the people who can thus put an end to controversy.(i) A stabilizing factorIt has proved to be a stabilising factor in Switzerland. The Swiss are conservative minded. Hence they do not allow radical and sweeping reforms to takeplace through Referendum. Thus the existing structure of their society has never undergone a great change.C.F. Strong has very well summed up the main advantage of Referendum in the following words:"First the Referendum corrects the faults of Legislature which acts corruptly or in defiance of their mandate. Secondly, it keeps up a useful and healthycontact between the elected and the electors. Thirdly, it secures that no law which is opposed to popular feeling shall be passed."2Though, the advantages enumerated above are quite imposing, yet some foreign critics and also a few Swiss point out some glaring defects of the system asprevalent in Swiss Cantons and Confederation.53Defects (Disadvantages) of ReferendumReferendum has been denounced by some critics on the following grounds:(a) Status and authority of legislature underminedThe status and authority of the legislature are apt to suffer when a bill passed by the legislature is rejected by the people. Its sense of responsibilityvanishes as it may pass measures its judgment disapproves, expecting the people to reject them or may not like to pass measures it deems fit lest it shouldreceive a buffet from the popular vote. In the words of M. Dubbs, "If you introduce the referendum, Parliament becomes merely a consultation committee.Its responsibility disappears because it no longer decides anything definitely when the people pronounce in the last instance."3(b) Legislation complex but man in the street is a laymanIt places in the hands of the people a power which they are not qualified to exercise. Modern legislation is highly complex and fairly technical. A commonman is not competent enough to express his verdict on a legislation which baffles even the parliamentarians. Hence, given an opportunity to give verdicton a thing, he is not aware of, a man in the street would make a mess of the legislation. Welti, a former President of Swiss Confederation and a well knownleader of Switzerland rightly remarked, "Imagine a cowherd or a stable boy with the commercial code in his hands going to vote for or against it." Bryceis of the opinion that howsoever shrewd and dutiful the people may be, they are not equipped with requisite knowledge enabling them to judge the meritsor demerits of a Bill. Even the distribution of pamphlets and oratorical skills displayed by the supporters and opponents of the Bill as is done in Switzerlandis not enough to enlighten the people on a particular legislation which is complex and beyond their comprehension. In the words of Bryce, "How can a peasantof Solothmer in a lonely valley of Jura form an opinion on the appropriations in a Finance Bill... Is it worth the money proposed to be allotted?"(c) Social, economic and political progress retardedSir Henry Maine popularised this idea in 1885. It impressed Englishmen in particular because they always regarded a common man conservative in character.Hence "referendum appeared a harbour of refuge" for them. They emphatically asserted that a conservative man in the street is apt to impede social, economicand political progress of the country whenever he is given a chance to express his opinion on such measures.54According to Dr. Finer, the uninformed, unintelligent and vindictive people have very frequently wrecked progressive legislation. Bryce also opines: 'Themost comprehensive but also the vaguest adduced argument against the referendum is that it retards political, social and economic progress". In Switzerland,in fact the people have sometimes stood against progressive measures passed by the Federal Assembly.(d) Small size of votes castThe critics assert that due to electoral fatigue which the people are apt to develop when they are frequently called to the poll, the number of votes casthas generally been very small. In most cases, the opponents of the Bills who aim at defeating a particular bill go to the poll in larger number than theirsupporters.A large number of absentees from Referendum reflects that either the voters are not interested in referendum or find themselves incompetent to understandthe complex legislation. Hence the decision arrived at, hardly represents the true public opinion. Moreover, referendum loses its significance, when thecitizens do not show interest in it.(e) Unnecessary delayIt is contended by the critics that unnecessary, rather harmful, delay is caused when, even, on matters of vital importance, verdict of the people is tobe obtained. Obtaining of requisite number of signatures, fixing up A day for polling, pamphleteering, propaganda, counting of votes - all this causesdelay in the passage of the bills which are urgently needed. In the words of Strong, "If generally adopted in a large state, it would probably cause suchdelay in the promulgation of laws as might deprive society of the benefits they were designed to bestow or permit the perpetuation of the evils, they wereintended to remove."(f) Its moral efficacy questioned.As already said above, lethargy or indifference on the part of the voters leads to casting of small number of votes. Hence a particular bill passed by thepeople may represent only minority opinion. Besides a bill may be passed by them by a narrow margin. How can such bills command moral backing? A bill passedby the legislature by a narrow margin would not entail criticism, as people do not bother to know the percentage of votes cast for or against a measurein their representative body. But a bill placed before the people for their final verdict, is apt to draw hostile criticism if it is passed by a differenceof a few votes. Hence such a Bill fails to command the willing obedience of the people.55For example, Swiss Penal Code was passed only by 53 per cent of the participating voters in 1938. Hence, the critics assert that such type of importantmeasures fail to command moral authority, rather arouse resentment and hostility among those who opposed their enactment.(g) Mere negative participation of the peopleIt is said that the participation of the voters is purely negative. A voter has to indicate merely 'yes' or 'no' against a bill placed before him. He isnot allowed to agree with a part of the Bill if he so desires. He is to accept the Bill as a whole or reject it in toto. Thus the importance of this democraticprivilege is considerably minimised, when the voter is given a mere negative right.(h) Evils of party system accentuatedInstead of minimising the evils of party systems, it further accentuates them. A frequent use of vote, obviously, develops partisan spirit and encouragesparty factions and rivalries.(i) Not a true expression of popular mindThe results of the popular vote do not always indicate popular will or reflect popular mind. The votes may be captured by the display of jugglery of wordsand high sounding jargons. Bryce remarks, "The results of a popular vote cannot be always deemed a true expression of the popular mind which is often capturedby phrases, led astray by irrelevant issues, perplexed by the member on distinct points which a Bill may contain and thus moved by its dislike to someone point to reject a measure which taken as a whole, it would approve."(j) CostlyThe critics condemn this device of Referendum on the plea that it involves a great deal of expense. Lot of money is wasted on pamphleteering and other meansadopted for procuring votes.Critical appraisal of Referendum as practised in SwitzerlandIn fact, the arguments advanced against Referendum are not fully applicable to Switzerland. Some of them are mere exaggerations keeping in view the Swissexperience. There is however, an element of truth in some of these points. Of course, on certain bills a bulk of the voters are not qualified to give theirverdict. It is also true that demagogues might utilize Referendum as a means of condemning leaders. It is also correct that comparatively less intelligentvoters might be hoodwinked by clever party propagandists or be kept in dark about the merits of the proposed legislation due to partisan spirit or religiousprejudices. 56Absentations also, particularly in some of the Cantons have been quite numerous. Some of the voters have been putting a mere blank paper, in the ballotbox when driven to vote for or against a bill. Sometimes important measures like Switzerland joining U.N.O. though passed by the Assembly and supportedby major parties was rejected at Referendum in March 1986 by a majority of 75.7 per cent of votes polled. Not even one Canton favoured it. This was inkeeping their neutrality. But with all this, the system has been so firmly entrenched on the soil of Switzerland and suited the Swiss environments so muchthat neither in the Confederation nor in the Cantons, proposals have been made to abolish it. The people as a whole value the privilege. There might havebeen differences as to the extent to which the Referendum should be resorted to but as regards its retention, there have never been two opinions. Brycehas very well summed up the whole issue in the words, "Any harm done by the Referendum in delaying useful legislation has been more than compensated bythe good done in securing the general assent of the people when their opinion was doubtful, in relieving tension, providing a safety valve for discontent,warning the legislatures not to run a head of popular sentiment."In fact, it has worked creditably well in communes. There is no specific proof to establish that the device of Referendum has reduced the quality of themembers of the Assembly or the Cantonal Councils or discouraged capable men from seeking a seat in the legislatures. Its working over a series of yearsreflects that it has reduced rather than intensified party feeling. It has proved to be a "bond of union and a training for the people."Working of the InitiativeArguments for and against Initiative and Referendum are almost identical. Their theoretic basis are the same though the conditions of their applicationdiffer from each other considerably. Hence we add a few more points for and against the Initiative.Advantages(a) Development of the idea of popular sovereigntyThe concept of popular sovereignty is said to be truly expressed through the Initiative. The representatives constituting the legislature do not in thereal sense represent the people. The individual will of the citizens can be properly expressed only through his own vole or his own voice. Referendum isonly a negative method for expressing his view on a matter. The individual craves for positive right of initiating a law which expresses his own will andindicates his own mind. The Initiative provides him the requisite right.57(b) Removal of Legislatures' apathyIt is contended that the legislators are generally apathetic to the needs of the people. They do not feel the pulse of the nation. Hence they lag behindthe public opinion. The Initiative pulls up the legislators and reminds them of the need of the masses, as embodied in their initiated measures.(c) Greater sanctity behind popularly initiated lawsA law initiated by the people if passed by the bulk of population, is held in greater sanctity and is more willingly obeyed than the one passed by theirchosen representatives.(d) Chances of political upheavals minimisedSince the people themselves are vested with the right of even initiating measures, they may not think in terms of revolting against the existing regime.Hence chances of political upheavals are considerably minimised.DisadvantagesApart from having the disadvantages of Referendum already mentioned, the Initiative is condemned on the basis of a few additional points enumerated as under:(a) Authority and responsibility of Legislature underminedAuthority and responsibility of the Legislature are reduced still more, when the people are out to rectify not only the sins of commission but also thatof omission of the Legislature. The Legislature will expect the people to initiate measures of importance and public interest. Hence, it will not liketo assume responsibility of introducing controversial or even important legislation, expecting the people to take it up themselves.(b) Drafting of a Bill not an easy ventureDrafting of a bill is a technique requiring specialisation. An average citizen is not aware of drafting technicalities. Hence popularly initiated billsare bound to be "crude in conception, un skilful in form, marred by obscurities and omissions." The language of such bills is so defective that it canentail many interpretations.(c) Not parent of reformsInitiative has not proved to be a device for effecting reforms. Instead, unwise legislation has been sometimes encouraged. According to Esmein, "directlegislation (referendum and initiative) is vicious both in theory and practice. It involves appeal from knowledge to ignorance58and from responsibility to irresponsibility. It is unsound in practice because it puts the final power in the hands of the illiterate people and therebyslows down the political, economic and social growth of the country."A critical review of the InitiativeThe fears of the critics of Initiative are not absolutely fallacious. It has not, however, been frequently resorted to. The initiative proceedings are employedfor highly controversial subjects such as the right to work and estate tax. Some of the ordinary matters have appeared in the guise of constitutional mattersand ultimately passed, though both the Federal Assembly and the Federal Council were opposed to them. For example law to "forbid killing of animals withoutfirst stunning them by a blow" - a manifestation of the anti-Semitism, then prevalent in Europe - was passed despite the opposition of Federal Assembly.In the Cantons, where initiative has been comparatively less frequently used, it has not effected any reform worth its name. Rather unwise laws have beenpassed through the Initiative. It has been heartening however, that the people, inhabiting Cantons have been wise enough in rejecting mischievous schemesproposed by this device. Sometimes the Cantonal Councils have been prudent enough in dissuading the people from a particular proposed plan, entailing harmfulresults and substituting a better one in its place. It may also be added that with the passage of time, the Initiative started gaining ground and winningappreciation at the hands of the Swiss statesmen. "Many held it to be valuable as checking the undue power of any party which should long command a majorityin the legislature: few dwelt upon the danger present to the mind of statesmen in other countries that it may offer a temptation to irresponsible demagoguesseeking, by some bold proposal to capture the forum of the masses."ConclusionWe can therefore conclude that these Institutions of Referendum and Initiative which could not attain success in other countries of the world have not beenfailures in Switzerland. They have been rather applauded by majority of Swiss statesmen and also important political parties of Switzerland. The Radicalsdeem Direct legislation an indispensable feature of democracy. They have advocated legislative initiative for federal laws. Even the Socialists supportit. The Conservatives and Clericals consider it a drag on hasty legislation. For Munro after weighing advantages and disadvantages of Direct legislationremarked "the advantages of direct democracy in Switzerland outweigh its defects." 59Of course, if Switzerland would have been a big country like India, inhabited by vast majority of illiterate masses, the experiment of Direct Legislationwould have been a miserable failure. The habits and aptitudes of our people would not have fitted them for it. The Swiss are well enlightened, and fortunatelyinhabiting a small compact country which may be equated with 'Punjab' - a unit of India. Hence, the system has been on the whole a commendable successin Switzerland. Rappard has very rightly observed that if one were to ask a man in the street in Switzerland "Whether his country was on the whole satisfiedwith the results of her experiments with direct democracy, the answer would undoubtedly, be in the affirmative."4 In fact Referendum and Initiative haveproved to be pivot upon which hinges the Swiss Governmental system.A critical appraisal of the working of the Direct Legislation in Switzerland will enable us to agree with the apologists of the system. It has proved tobe of great value to the Swiss though consequences of its working in some of the States of U.S.A. have been quite discouraging. Probably because, the Swisshad an inner urge of participation in the legislation of their country whereas the Americans had distrusted their legislatures and hence opted for it.The political parties in the U.S.A. have played a nasty role by indulging in corruption and manoeuvring. Hence the system of Referendum has proved to bea failure in U.S.A. In Switzerland, on the other hand though the system is not absolutely free from blemishes yet has proved to be "the most remarkableamong all the institutions that democracy has produced."5 Friedrich has given a critical view of the working of direct legislation in Switzerland in thewords "Direct legislation in Switzerland has not realised all the extravagant anticipation of its friends. But, on the other hand, it has completely falsifiedthe dismal prophesies of chaos and revolution attuned by the conservatives of an earlier period. It has become a vital and freely functioning part of theSwiss political organism."6The use of Referendum and Initiative has tended to attain gradual popularity in Switzerland as is obvious from the observation made by Rappard. He estimatedthat "whereas the average number of these plebiscites was 0.4 a year under the regime of the Constitution of 1848 it increased to 1.5 from the adoptionof the Constitution of 1874, until the outbreak of the world war and has arisen to 2.4 in the war and post war period". Its popularity is on the ascendancein the present decade.It may, however, be added that Referendum has been comparatively more popular and more successful than the Initiative60Hans Huber supports this contention and Compulsory Constitutional Referendum has attained more popularity than the optional Legislative Referendum. TheConstitutional Initiative has been far less successful than the Constitutional Referendum. Approximately 1/6 of initiative proposals have been acceptedby the people. Likewise about 65 per cent of Constitutional Referendum obtained a positive vote of the people.Besides, the legislative initiatives has remained confined to the individual Cantons.It has been observed that radical measures have generally been rejected. The too comparative and complicated measures also have not been approved by popularvote. Besides, measures aiming at spending have also been rejected.The above facts prompt us to conclude with the words of Bryce: "In Switzerland (Direct Legislation) it is a natural growth, racy of the soil. There areinstitutions which like plants, flourish only on their own hillside and under their own sunshine. The Landsgemeinde thrives in Uri, the Referendum thrivesin Zurich. But could saxifrages or soldanellas gemming a pasture in the High Alps thrive if placed in Egypt."7References1. Huber, Hans, How Switzerland is Governed, p. 25.2. Strong, C.F., Modern Political Constitution, p. 99.3. As quoted in Simon Deploige, p. 99.4. Munro : The Governments in Europe, p. 746.5. Rappard, W.E., The Government of Switzerland, p. 74.6. Friedrich. C.J.: Constitutional Government and Democracy, p. 552 (1966-67).7. Bryce: op. cit.. Volume I, p. 453-54.617 POLITICAL PARTIES IN SWITZERLAND"Political parties in Switzerland play a role far inferior to that of a party in France or England."—BrycePolitical parties constitute essence of a democracy. Hence Switzerland is no exception. Political parties generally entail party strife and party factionsparticularly if the country is inhabited by diverse races, embracing different religions and having conflicting economic interests. In Switzerland, despitethese diversities of racial character, religion, speech and economic interests, party spirit does not actuate Swiss political life to an extent as it doesin other democratic countries of the world. The reasons are not far to seek.Why role of Swiss Political Parties less vital?(a) No vital issue before them for longFor over fifty years the Swiss nation was not faced with any issue of vital importance unlike that of other continental countries like France where Monarchyvs. Democracy haunted the minds of politicians or unlike that of U.S.A. where abolition or retention of slavery attracted the attention of the Americanpoliticians. 'The form of government" as says Bryce "has, in its outline been long settled, the bed-rock of democracy reached. There are no questions ofcolonial, hardly any one of foreign policy."(b) No discontent with economic conditionsParty enthusiasm is stimulated when economic discontent is accentuated. The Swiss on the other hand, constitute a contented lot. They do not seem to bedissatisfied with existing economic conditions. They are not zealous of equitable distribution of products of labour.62(c) No ecclesiastical antagonismThe old ecclesiastical antagonism are not very acute. Religious equality is the continuous feature of the Swiss Constitution Catholic Cantons are allowedto do what they like, subject to the provisions of Constitution. Protestant Cantons do not interfere. Thus the parties cannot afford to be antagonisticto each other on this ground.(d) Short session of the LegislatureThe sessions of the Legislature are short, rarely prolonging beyond a month unlike that of U.K. and U.S.A. where legislatures hold sessions for pretty longtime. In Switzerland thus when the sessions are over, the members resume their normal vocation. As such the professional politicians do not have theirsway in Switzerland. Thus strong party organisation cannot develop within the legislature.(e) The nature of Swiss ExecutiveThe Swiss Executive is non-partisan. It is not removable by the Legislature. Hence the parties in the Legislature have not to struggle for Dusting the Executiveand winning a place in the government as is the case in France and Great Britain. The Federal Councillors hold the executive posts not because of theirmembership of one party or the other. They remain Councillors because they are equipped with administrative skill. Lust for power which generally accentuatesparty feelings, is conspicuous by its absence in Switzerland.(f) Loose organisation of the PartiesThe Swiss parties are loosely organised. They are constituted on cantonal rather than national basis. They fight for local interests. They are mostly concernedwith local elections and local politics. Even elections to the federal assembly are essentially local affairs. In the words of Rappard, the candidates,"base their claims to popular favour much less on the principles enunciated in the party which they adhere than personal record and on their cantonal associations."The absence of nationwide elections as held in U.S.A. for President's Election is also one of the reasons for the lack of strong Party organisation inSwitzerland.(g) Personal ambition less conspicuousIt is, perhaps, the only country in the world where personal ambition and personal leadership in public life are less conspicuous than in any other freecountry. The Swiss worship ability, honesty and courage and not the personalities. They are not the hero worshippers. No statesman could create a partyafter his name. In the modern democracies, parties63are created by the political opportunists to grind their own axe. That is not the case in Switzerland.(h) No sporting instinctThe English people are stirred by "sporting instinct" - the instinct which induces the members of a party to feel that it is their's and hence they muststrive their utmost to make it win. Such an instinct is conspicuous by its absence from the Swiss minds. They take politics as a business matter.(i) Popular voteAs already discussed in the preceding Chapter, important questions of policy are decided by a popular vote through the process of Referendum. Hence theparties are not keen to fight for dominance in the Legislature or the Executive. Thus the incentive behind keen party rivalries does not exist in Switzerland.(j) No class hatredGlaring disparities between the rich and the poor generally encourage the appearance of political parties representing the haves and the have-nots. In Switzerland,inequalities of income persist but display of wealth which excites everyone in France or U.S.A. is hardly made in Switzerland. The desire to install proletariatin power has of course brought into existence an aggressive party but even then comparatively less bitterness is aroused in Switzerland than in other countriesof Europe.(k) Domination of one Party for longBryce is of the view that for full two generations one party commanded so comfortable a majority in the Confederation that the other parties thought itadvisable to confine themselves to mere resistance of some of its measures rather than think of dethroning it. It may also be said to the credit of themajority party that it never attempted to abuse the authority. Hence the opposition parties exhibited resistance with moderation.(l) No spoil systemAppointments are made on the basis of merit system unlike that of U.S.A. where spoil system prevails and jobs are given as spoils to the party henchmenby the elected President. Moreover, the remuneration of the civil services is not very alluring. Hence there is no charm in taking to government job. Evidently,party struggles are minimised considerably where people have not to fight for loaves and fishes.64(m) PatriotismSwiss are patriotic to the core. They give precedence to the interests of the nation. Petty domestic differences do not defect them from their intense lovefor the nation. Moreover, they are aware of the four great military powers environing them from four sides. Hence they feel that their interest which isidentical with the national interest, lies in keeping united.Bryce has very well summed up the outcome of the points referred to above in the words: "Taking together, these considerations explain why party feeling,which in some democracies can swell to a raging torrent, has in Switzerland been since 1848 no more than a rippling brook."1 The Swiss Party System isdevoid of all such characteristics which are conspicuous features of important party system in top democracies of the world. Hence its role is not so vitalas it is supposed to be in a democratic country opting for sound party system.A brief history of political partiesThe political parties came into existence in Switzerland with the birth of 1848 Constitution. The Liberals and Democrats were the early two groups supportedby the Protestant German Cantons and the Protestant French Cantons respectively. The Liberals had in their ranks older politicians who stood for 'laissezfaire' principles, moral and cultural freedom for all and republican political institutions. The Radicals, on the other hand, were comparatively youngerpoliticians, progressive in views and more liberal in thoughts than the Liberals. In spite of their difference of opinions, both the Radicals and the Liberalsjoined hands in framing the Constitution of 1874 which represents the points of view of the both. The Catholic Conservative People's Party which was opposedto Radicals and Liberals and was responsible for the War of Succession and the formation of Sonder bund, (a League of seven Catholic Cantons formed in1845) came into existence simultaneously with the Radicals and the Liberals.It is thus quite evident that by the time the Constitution of 1874 was framed, these political parties - the Radicals, the Liberals and the Catholic ConservativePeople's Party were in the run. From 1848 to 1890, the Radicals and the Liberals held the power and the Catholic Conservatives were on the opposition.In 1891, the Liberals broke away from the Radicals. Hence they formed an opposition and a Conservative-Radical Coalition came into existence. The LiberalParty was considerably weakened. After 1880 the Social Democratic party was borne. With the elapse of years, it gained strength. By 1918, a65Farmer's Party also had sprung up. In due course, it also assumed importance. In 1929, a representative of the Farmer's Party was also included in the RadicalConservative Coalition as it commanded thirty one seats in the National Council. The Party is on the decline since 1935 probably because another Party- the Young Farmers concerning agrarian reforms came into being.Apart from these major parties, certain minor parties as Independent Party (1935), the Independent Social Democrats and the Nicole Group which seceded fromthe Socialists in 1939 and the Communists also exist in Switzerland.A Brief Account of Swiss Parties' Programmes(a) Liberal PartyAs already discussed, the Liberal Party is one of the oldest of the existing Swiss Parties. It played a vital role in shaping the destiny of the countryin the initial stages. The credit for the framing of 1848 Constitution and turning Switzerland into a truly federal State goes to it. It advocated a liberalpolitical philosophy of the traditional laissez faire type, normal and cultural freedom for all and republican political institutions. Since 1890, theparty suffered a marked decline. At present, it is reduced to a mere "federalistic, i.e., States' rights party, opposed to the increase of governmentalpower and composed primarily of French-speaking protestant aristocrats and upper bourgeois"2. It is holding strength in Geneva, Lausanne, Naughatil andurban Basil.(b) Radical (Radical Democratic Party)It was contemporary of the Liberal Party referred above. It collaborated with the Liberals in forming the Constitution of 1848. It stood for Liberalismas well, though its liberalism was of a more progressive type in character. Centralised federation, secularism, constitutionally guaranteed personal freedomswere and are some of the main tenets of the Party. It stands for the institutions of Referendum and Initiative. It advocates tariff protection and publicmonopolies. It suggests adoption of adequate measures for the defence of the country. Neutrality is its cherished foreign policy. For more than seventyyears, the radicals have dominated the political scene. Even today they command the largest majority in the National Council and the Federal Council. TheParty has been rightly termed as the architect of "Modern Switzerland."(c) Catholic Conservative PartyIt is a fairly important party. It is considered as the champion of the State rights. In the words of Rappard. "It is neither individualistic nor liberalbut frankly theocratic." 66It is the guardian of the propertied class. It encourages private philanthropy and cooperative institutions. It is the advocate of Catholic Church. Dueto the emergence of a socialist wing within it, the party has come to adopt a sympathetic attitude towards labour problems and labour legislation. It favoursnow the development of labour unions as well. It is the third largest party in the National Council.(d) Farmers PartyIt represents the farmers, artisans and middle class people. It came into existence in 1919, as an offshoot of the Radical Democratic Party. It is the championof the agrarian interests. It is interested in the amelioration of the lot of the urban middle classes as well. It exhorts the government to fix pricesfor agricultural commodities. It is, however, anti-Marxist. Hence it is opposed to State intervention in the economic life of the community. It also standsfor the adoption of adequate measures for the defence of the country. It advocates strong federation. It is known as Swiss Peoples Party.(e) The Social Democratic PartySoon after its coming into existence, it gained immense importance. It derives the support from industrial workers, civil servants and other professionalclasses. It claims itself to be Marxist though in fact it lacks the characteristic of Marxism. In the words of Rappard, its programme is "a curious combinationof political liberalism, Marxian economics and ambitious planning." It believes in democratic and peaceful methods for the achievement of its objects.It stands for a healthy blend of capitalism and socialism. It advocates public planning in the economic field and rationalisation of monopolistic industries,bank and credit institutions. It also stands for direct democracy and women suffrage.(f) Communist (Labour) PartyIt is the only Leftist Party in the country. Urban industrial workers and intellectuals are its followers. The Party could not popularise itself due tolegal limitations on its activities. During World War II, it was banned both by the Federal Government and by some of the Cantonal Governments. After theremoval of legal restrictions, the Communist Party could gain some ground. It may be pointed out that sound economy of the country and the absence of economicdissatisfaction are the causes which have impeded its popularity.67(g) Other Insignificant PartiesBesides major parties, described above, there are small number of comparatively insignificant factions or splinter groups such as the Liberal Socialists,the Independent social Democrats, the Nicole Group which seceded from socialists in 1939, the National Fronts, Young Conservatives, the National Leagueand the Peasants League, and the New Switzerland.Cantonal PartiesThe parties in the Cantons are not the same as in the Confederation. The Cantonal elections are contested on Cantonal and not on national lines. In themountainous and agricultural regions of Switzerland, the local issues predominate, hence the people are generally absorbed in the local issues. The politicalparties, however, are very active in the industrial part of the country. Even in the Cantonal elections, the Swiss do not display enthusiasm generallyexhibited by the units of the National Parties in other federations.Thus we may conclude that the Swiss party system is devoid of the characteristics of a Party System as exists in a democracy. The majority parties do notmake hectic efforts to retain their strength and the minority parties being conscious of their numerical strength generally adopt a passive attitude. Thusparty strife which is the cardinal feature of a democracy, is to a great extent, alien to Swiss Party System. In fact, organised parliamentary oppositionis conspicuous by its absence from Switzerland. The Labour (Communist) Party which generally avoids joining Swiss coalition Government is too weak an organisationas to act an effective opposition in England. During the course of years it has been realised that such a Party System has a tranquillizing, stabilizing,ennobling influence upon the working of the government. In fact, nowhere else, "has the ship of State been less tossed by party oscillations." Referringto Party system in Switzerland Bryce has correctly observed, "political parties play a role, far inferior to that of a party in France or England."3Interest GroupsSection 3 of Article 32 of the Constitution provides that interest economic organisations shall be consulted prior to the enactment of the executory legislationand may by called upon to cooperate in the application of executive legislation. There are four most powerful interest groups viz Swiss Union of Commerceand Industry called68VORORT; the Swiss Peasants Union; the Swiss Federation of Trade Unions and the Swiss Association of Arts and Crafts. They are represented in Federal Assembly.There are a few other such groups which also can exercise influence on legislation. These interest groups are very active at the legislative referendum.Hence Codding remarks "Interest groups activity in Switzerland is integrated to a great extent into the normal political process" The Interest groups choosea party whose attitude reflects their approach to the problems and its solution and they forge a united front with such a party. The interest groups havebeen by and large supported by the Swiss. They feel that these groups help in determining as to what is in national interest.References1. Bryce: Modern Democracies, Volume I.2. Clarke Adams, John: Foreign Governments and their Backgrounds, p. 423.3. Bryce: Modern Democracies, Volume I, p. 390.698 THE CANTONAL GOVERNMENT"The Canton is the living reality much more so than the Confederation."—AndreThe Cantons constitute the units of the Swiss Federation. According to the Constitution, they are termed as twenty-two sovereign Cantons of Switzerland.In a federation, the units do not enjoy sovereignty. They are not altogether devoid of autonomy either. The Swiss Cantons have been guaranteed autonomy,though they do not form sovereign units. In the words of Andre, 'The Canton is the living reality much more so than the Confederation which may well appearto him so little more than a cold administrative mechanism." The Constitutions also makes it clear that these units, "are sovereign in so far as theirsovereignty is not limited by the Federal Constitutions. As such they exercise all the rights which are not delegated to the federal form." Hence the Cantonsare not merely administrative areas. They have been given authority, though limited, by the Constitution. They have their governmental apparatus. Theyhave their Constitutions. They have their Legislative, Executive and Judicial organs and also a Civil Service. The Swiss Citizen is a citizen of the Cantonfirst. In the words of Rappard, "The Canton and often the Commune looms larger than the Federal State."1The Swiss Cantons differ in area and population. The half Cantons like that of full Cantons have a governmental of their own. They send one representativeto the Upper House of the Federal Legislature whereas the full Cantons send two. The half Cantons came into existence when internal dissensions in Cantonscould not be settled save by territorially splitting them into halves.Two types of CantonsFrom administrative point of view, Cantons can be divided into two parts (i) those where direct democracy persists and (ii) those where70representative assemblies have been established. In one full Canton (Glarus) and the four half Cantons Landsgemeinde - an institution five hundred yearsold - exists.The Lands gemeindeThe Lands gemeinde is the most picturesque of all the institutions of Switzerland. It is a sort of political assembly of all male adult citizens of theCantons concerned. It meets annually on a Sunday in April or May. The meeting is held not in a well furnished Chamber as is the case in the other Cantonshaving representative legislatures. It is convened in the open air. Hence these Cantons catering to the Landsgemeinde are termed as "democracies of theopen air type." Attendance of its meeting is said to be compulsory. In some of these Cantons, fine is imposed on the defaulters who are absent withoutany legitimate excuse. Landamman presides over these meetings of Landsgemeinde. Debates in the Landsgemeinde are scarce as preliminary work is done byan advisory body which is assigned the duty of formulating and drafting the proposals to be submitted to the Assembly. The proceedings in the meeting areorderly and dignified.Its Functions(a) It elects by show of hands the Landamman, the members of the Executive Council, the Cantonal representatives in the Council of States, judges, officialsand also the Head of the government.(b) It approves the accounts and votes the budgets.(c) It passes legislative measures and certifies those which have been passed by the Executive Council.(d) It can change the Constitution of the Canton.(e) It passes resolutions and also holds discussions on the various problems affecting the Cantons.Evidently, it gives an impression of a sovereign legislature.Llyod and Hobson have correctly observed, "the Landsgemeinde represents the form of democracy in which the sovereign power of the people is directly exercisedin all the critical acts of government by the full assembly of citizens, forming the largest and most conspicuous example of what Rousseau and certainother political philosophers regarded as the only democracy."The Landrat (Cantonal Council)It is elected for four years not by the Landsgemeinde but by separate electoral districts. It is a subsidiary legislature. It attends to those details whichcannot be brought before the Landsgemeinde.71Its functions(a) It passes ordinances (b) It votes the smaller appropriation and examines the accounts (c) It elects the petty officials accounts (d) It prepares thelegislative work to be placed before the Landsgemeinde. As such it serves as a check on the hasty and ill-considered legislation which may emanate fromlarge public meeting (Landsgemeinde).The Regierungsrat (Administrative Council)It consists of seven members who are elected by Landsgemeinde. It serves as the Executive Council of the Cantons and is presided over by the Landamman.Representative CantonsThe Representative Cantons provide for Compulsory Constitutional Referendum, Constitutional Initiative and popular Initiative, even for ordinary legislation.Referendum is compulsory on ordinary measures in some Cantons and optional in others. The Great Council is the unicameral legislature of these Cantonsand Government Council and Council of State constitute Collegial executive in German speaking and French speaking Cantons respectively. We discuss below,briefly, the composition and functions of these bodies.The Great CouncilThe Great Council is a directly elected unicameral legislature in a Canton. The number of members in these Councils varies from Canton to Canton. For instanceBerne's Great Council consists of 228 members whereas Obwalden is composed of only 32 members. The members of the Great Councils do not receive any remunerationunlike India or some other Parliamentary Democracies. They get only daily allowance. The tenure of these members also is variable. It varies from one tosix years, four years being the commonest The Great Council must meet at least once a year, to pass the budget. In some Cantons, it can be dissolved bypopular vote.FunctionsThe functions of the Great Council are as follows:(a) It discharges the duties of a Legislature (b) It exercises control over annual budget, loans and taxation (c) It has the power to declare a state ofemergency and call up Cantonal troops if necessary (d) It controls the administration and elects the members of the Executive Council, higher Cantonaljudges and certain other officials (e) It possesses the power of ratification of inter-Cantonal treaties (f) It grants amnesty and pardon.72Cantonal ExecutiveEach Canton is governed by a Collegial Executive which is termed as the "Government Council" in German speaking Cantons and Council of State in French Cantons.It consists of five to eleven members elected by the Cantonal legislature for a term ranging from one to five years. The members are re-eligible. In fact,they enjoy life tenure. They are drawn from different political parties. Hence political homogeneity -the cardinal feature of Parliamentary government,is conspicuous by its absence in the Swiss Cantons. In fact, the Swiss Executive Council constitutes a sort of 'Business Board' devoid of much of Partycolour. Like the Federal Council, it is accountable to the legislature. Each Council is headed by a Chairman who is designated as "Landamman" and is rarelyelected for more than a year at a time. The chairman is elected by the Legislature in some of the Cantons. In some other Cantons, he is elected by thepeople. In a few, he is chosen by his Colleagues. As regards his position, like the Chairman of the Federal Council, he is first among equals.FunctionsThe functions of Government Council are as under.(a) Each member of the Council heads a department of the Cantonal Government, (b) Like the Swiss Federal Council, the Cantonal Council drafts the billsand initiates most of them. It follows as well as guides the Legislature (c) Its members participate in the debates, though they do not have the rightto vote.Cantonal JudiciaryAs already discussed in the Chapter pertaining to Federal Judiciary, the National Tribunal, does not have its branches in the Cantons. Hence the Cantonshave their own judiciary. Cantonal courts fall into these categories:(a) Justice of the Peace: They constitute the lowest rung of the ladder. They deal with civil cases only.(b) Special Magistrate Courts deal with Criminal cases. These courts are termed as courts of first instance.(c) Courts of Appeal: In this category, we can keep "Cantonal District Courts" and the Cantonal High Court.District Courts possess appellate jurisdiction in both civil and criminal cases. They exercise original jurisdiction as well only in civil cases.The Cantonal High Court acts as the final court of appeal in the Canton. Of course, the appeals in certain cases can be carried to the Swiss Federal Council.73The Judges of these Courts are either elected directly by the people or by the Grand Council. No qualifications for the judges are prescribed, yet onlylegal luminaries are elected. Though the tenure of the judges is short, yet they enjoy life tenure as they are always re-elected. Law assessors are alsoassociated with the judges. In certain Cantons, justice is rendered free to the people, as the litigant is not to foot the fees of the judicial Counsels.The institution of jury so highly prized in English speaking countries, is put to use in Switzerland only for specific cases, i.e., in civil cases onlyfor matters pertaining to press and in criminal cases only for grave offences. The Cantonal judiciary has earned a reputation of being fair, impartial,cheap and prompt judiciary. In the words of Bryce, "Taking purity and promptitude, cheapness and certainty (i.e., the strict observance of settled principlesand rules) to be (apart from judicial honesty) the four chief merits of any judicial system, the results of the Swiss system may be deemed as good or betterthan those of England or of the United States."Other Local UnitsCommunesThere are about 3118 communes in Switzerland. They vary in size and population. They constitute the basic units of political life of Switzerland. In thewords of Hans Huber, Switzerland "is a characteristic country of communes." The citizenship of the commune is considered more valuable than the Cantonaland the Country's citizenship. A democratic form of Government exists in these communes. These small sized communes are controlled by the popular assembliesof the male citizens whereas the bigger Communes are controlled by the representative institutions. Referendum and Initiative are practised in all of thesecommunes. The Communal Council - the plural executive of the Commune - transacts business on behalf of the people of the Communes. The Communes are concernedwith such functions and duties as education, police, sanitation, water supply, poor relief, etc. The Communes rolling in wealth maintain charity hospitalsand asylums as well. In all these matters the Communes enjoy complete autonomy. According to Hans Huber, "The Swiss Communes are more independent and inmany respects more democratic in their organisation than the English Parishes, rural districts and counties."2The DistrictsThe District is a division between the Cantons and the Communes. It is merely an administrative unit. The people of the District elect a Chief District74Official who is at certain places assisted by a Council which performs advisory functions. The Chief District Official serves as a link between the Cantonand the Communes. He is in fact the representative of the Cantonal Government in the District. As such, he is responsible for the execution of its ordersand enforcement of its laws.Relation between Centre and CantonsThough, generally, Switzerland is referred to as Confederation, yet in reality it is a federation. As already discussed in Chapter II, the Swiss Federationresembles more the American and Australian type than the Canadian type of Federation. As such, a large number of matters affecting the individual and community,are entrusted to the Constituent units. The Constitution confers certain powers on the Federation and the rest, i.e., the residuary powers are left tothe Cantons. This is unlike that of Indian Federation, though like that of U.S.A. federation where residuary powers are left to the States. The Cantonsenjoy supremacy in their own sphere and are empowered to amend their own Constitutions. Three restrictions have, however, been imposed upon the Cantons- (a) Every Canton must have a Republican Constitution; (b) The Cantonal Constitution should not be contrary to the federal Constitution; (c) The CantonalConstitution must be, subject to revision by popular vole. Article 3 of the Constitution states: The Cantons are sovereign so far as their sovereigntyis not limited by the Federal Constitution. As such, they exercise all those rights which are not delegated to the Federal Government.Powers delegated to the CentreThe following powers are conferred upon the Federal government by the Swiss Constitution:(a) declaring of war, of making peace and of concluding alliances and treaties with foreign powers, particularly treaties concerning tariffs and commerce;(b) exclusive right over coinage, issue of paper money and fixation of foreign exchange;(c) power of fixing standards and weights;(d) monopoly of the manufacture and sale of gunpowder;(e) control over waterpower, post and telegraphs, federal roads and bridges and aerial navigation;(f) to own and work Railways;(g) monopoly of the production of alcohol;(h) to pass marriage laws;75(i) to control extradition;(j) to pass laws in respect of commerce and bankruptcy;(k) to raise revenue from federal property, federal customs, post and telegraphs, gunpowder, etc.;(l) to administer federal property and make laws regarding copyrights and banking; (m) to manage Swiss military system;(n) to maintain internal peace and order.Concurrent JurisdictionApart from the powers mentioned above, the Centre exercises Concurrent jurisdiction with Cantons over the following matters, (a) industrial concerns; (b)insurance; (c) press; (d) education; and (e) highways. The rest of the powers termed as residuary powers are vested with the Cantons.Both join hands in certain powersIn fact, it is a bit difficult task to draw a clear line of demarcation between the powers of the Cantons and the Federal government since many of the powersare exercised jointly by both the Central and the Cantonal governments. For instance: (a) the Federal Government concludes treaties with the foreign governmentsbut at the same time, the Cantons are empowered to conclude treaties with foreign powers, regarding the administration of public property, and border andpolice intercourse. It has been, however, provided that the official intercourse in such cases must take place through Federal Council (b) Though the responsibilityfor the defence of the country rests with the Federal government , yet the Cantons have been allowed to maintain army consisting of not more than 300 personnel.The law regarding the organisation of the army are, however, passed by the Federation, though their execution is left to the Cantonal officers (c) TheCantons are not allowed to resort to violence to resolve their differences (d) The Cantons frame their own Constitution but they are subject to the scrutinyof the federal government. The Central government is to see that these Constitutions do not conflict with any provision of the Federal Constitution andare republican in character and have been approved by the people of Canton concerned (e) The Central Government is empowered to intervene to quell theagitation or disorder in any Canton if invited to do so. If, however, the security of the country is endangered by such commotion, the Central governmentitself can intervene even when not invited for such a purpose.76The above-mentioned facts make it crystal clear that the Cantons work under the Central supervision to quite a great extent.Trends towards CentralizationIt has been observed that since 1874, the powers of the Central government have increased considerably. Zurcher remarks, "Federal authority has been extendedto such subjects as patents, water-power exploitation, the civil and criminal law, the alcoholic beverage, traffic, aerial, maritime and surface transportation.Federal ownership has been extended to nations' telephonic and wireless communication system and the Railways. Many new sources of Federal taxes have beencreated and considerable number of federal subsidies to the Cantons have been extended. Combined with other factors, such as the growth of commerce andindustry on a national scale, this augmentation of federal power has necessarily exalted the prestige and influence of the government of the confederationat the expense of the separate Cantons." In fact, the desire for national solidarity has induced the people to broaden their vision, overcome cantonalprejudice and steadily agree to the extension of the powers of the federal government. The economic crisis of thirtees, the Great War and the second WorldWar and its aftermath, also led to the increase of powers of the central government. After the transfer of Army to the central government civil and criminallaw became federal instead of cantonal. The motto "one law and one Army" was conceived to strengthen the cohesion of Switzerland. In the words of JohnBrown, 'During the two world wars and the economic depression the federal government's scope of action was vastly increased. As the war lime emergencyended, the range of federal action decreased but not to its former level'. John Andre expresses the fear that if this tendency continues, Cantons willgradually lose their autonomy and cease to be the sovereign States and become merely district administrations carrying the behests of the federal authority.Cantons still maintain autonomyOf course, these fears are not absolutely false. Article (3) clearly specifies that cantons are sovereign so far as their sovereignty is not limited bythe Federal Constitution. We cannot deny the fact that the Cantons still maintain the spirit of local autonomy. They still possess individual and separateentity. They even now possess residual powers. The officials of the Cantons still execute the federal laws in the Cantons. The armies are still mainlyunder the management of the77Cantons though they are supervised by the federal government. The Federal Constitution cannot be changed without the approval of the Cantons. Hence to saythat the powers of the Central government have enhanced to an extent that the autonomy of these Cantons is reduced to a mere farce, is rather an exaggeratedview. Zurcher opines that though federal powers have increased yet "the Cantons remain important elements of the Swiss Constitutional system." If powersof the central government have enhanced, adverse circumstances like World Wars and Economic Depression have played a conspicuous role. The people of Switzerlandwho have a craving for autonomy, have rejected the bills aiming at adding to the centre' s powers, under normal circumstances.No water-tight compartmentalismMoreover, unlike that of U.S.A., the federal and the Cantonal authorities are not divided into water-tight compartments, particularly in the administrativedomain. In departments like the one dealing with civil law, for example, the Federal authority legislates, but the Cantons are vested with the powers oforganising the Courts, determining legal procedure and appointing judges. Similarly for the execution of military laws, the federal authority makes fulluse of the Cantonal administration. Collection of custom duties, the management of telegraphs and the post offices etc., is done by the federal officialsthroughout the country.A lacuna in the ConstitutionIt is, generally observed that unlike that of U.S.A., the Cantons of Switzerland are not safeguarded against the possible enchroachment upon their powersby the Centre.The federal Judiciary is generally the saviour of the rights of the units in a federation. In Switzerland, the federal tribunal cannot declare the lawspassed by the federal legislature unconstitutional. The Swiss politicians, however, do not consider it a lacuna in the Constitution as they feel, the Swisspeople constitute the "highest court" in the country. If they approve the law passed by the Federal Legislature, then only it is made applicable in thecountry. Hence they feel, that the Cantonal rights are not at stake, due to the absence of power of judicial review.It may, therefore, be concluded that Cantons still have their entity. They still play conspicuous role in amending the constitution. No amendment in factcan be effected till the majority of cantons so agree. The Council of State represents them on equal basis. In the National Council also atleast one deputyfrom a Canton, howsoever small must78be there. Thus it is erroneous to presume that personality of a Canton is gradually waning and getting of merged in the Central Government In fact, thejudicial personality of the Cantons in the composition of all federal organs is expressly recognised.References1. Rappard, W.E.: op. cit., p. 31.2. Huber, Hans: How Switzerland is Governed, p. 18.1THE CONSTITUTION OF FRANCE1 THE HISTORICAL BACKGROUND"Perfection is not of this world. But, compared to what existed yesterday, the French State appears at present to be entirely transformed in terms of solidityand capacity."—General De GaulleFrance has been described as a laboratory of political experiments. In the field of constitution-making the French hold a world record. Since 1789 Francehas had no less than 12 regimes and 13 constitutions. The political changes cover extremes in time ranging from the 21 days of the Acte Additionnel of1815 to the 65 years of The Third Republic, and extremes in content ranging from complete changes of regime to simple modifications carried out by thenormal processes of constitutional revision. If in Britain and the U.S.A. the political arrangements have persisted, slowly evolving, over a long periodof time, in France, on the other hand, "the pendulum has swung from government d' assemblee to a highly personalist regime in a comparatively short span."1In view of its unique historical features, the Government of France makes an interesting study.The French Revolution, 1789The French Revolution, 1789 is the key to French politics from that date to the present. Prior to it, France had an autocratic Government of the worst typewhich ignored the interests of the people. According to Neumann, "The pre-revolutionary era, known as the ancient regime, was characterised by a combinationof absolutism and centralism conceived by strong kings like Louis IX and Philip the Fair, intensified by the extraordinary Cardinal Richelieu, and carriedto new heights by Louis XIV."2 Under such conditions revolution was inevitable which occurred in July 1789 when the Estates General was convened whichtransformed itself into a 'National' Assembly and, in a great burst of2activity, abolished or reformed away most of the old feudal prescriptions of the state - the privileged position of the Church and the clergy, the guilds,the mobility and drew up the famous declaration of the Rights of Man. In September, 1791 it gave to France a written constitution for the first time butthis constitution failed to satisfy the radical revolutionaries. The king was deposed and later put on trial, condemned and guillotined. France was declareda Republic. The Constitution of the First Republic of France, 1793 was quite liberal and radical. It provided for direct elections, manhood suffrage, primaryassembly of citizens to consider proposed laws and a plural executive of 24 members. But this constitution could not be implemented, as the country wasexperiencing reign of terror. In 1795, the state was entrusted to the Directory: a committee of five men. But even this Council of five men could not functioneffectively as the members quarrelled among themselves. Faced by rebellion the Directory urged Napoleon to handle the rebellion. The Directory was replacedby a three-man consulate of which Napoleon was named the first Consul in 1799. Reducing the other two consuls to ciphers, Napoleon came to acquire politicalsupremacy and crowned himself Emperor of the French in 1804. France again reverted to monarchy and the Revolution which began as a rebellion against aneffete autocracy ended up with public support of an autocracy more ruthless, more centralized, more efficient than any France had ever known.3Second Republic (1848-1851)Napoleon ruled France as Emperor till 1814 when he himself was overthrown and Louis XVIII reign ended the throne. Louis soon came into conflict with thepeople and was overthrown in 1830. A new dynasty put Louis Phillippe on the throne. The Charter of 1830 was a little more liberal than that of 1814 butit also failed to win the support, of the people for the new regime. Louis Phillippe ruled France from 1830 to 1848 when he was over-thrown by a risingin Paris and France became a Republic. The Constitution of the Second Republic was prepared and adopted by a popularly elected national Assembly and itdeclared the people as sovereign. Louis Napoleon was elected as President by universal suffrage but he in 1852 declared himself as Emperor Napoleon III,thereby bringing the Republic to an end. He continued to rule France till 1870. His defeat in the Franco-German War brought his end and a provisional governmentwas established.3Third Republic (1870-1940)The period 1870-75 was a kind of interregnum with a provisional government working under the organic laws. It took five years to frame the Constitutionwhich established a republican form of Government and specifically provided that the new form of Government was not to be changed even by a Constitutionalamendment. No doubt it was so rigid a Constitution that only three amendments took place between 1875 and 1940. The Constitution firmly and finally setup a Republic which signified a definitive triumph of republicanism over monarchism.Briefly put, the Constitution of the Third Republic provided for a President and a two chambered legislature. The president, elected jointly by both chambersfor a seven-year term, was commander-in-chief, head of the executive branch and president of the council of ministers; he received and appointed ambassadors;he symbolized the state. However all his acts required the counter signature of a minister. His position was, in fact, like that of the British sovereign.The legislature consisted of the Chamber of Deputies and the Senate. The Chamber of Deputies, popularly known as the Lower Chamber was elected for a four-yearterm by universal manhood suffrage. (The women did not have the right to vote). Though the Constitution contained the dissolution clause, convention deniedits use with the consequence that every chamber lived out its full term. The Upper Chamber, the Senate, was indirectly elected, by the ninety departmentsof France, serving as the constituencies. (The department is a local unit in France). The electors were made up, in the greatest part, of the municipaland departmental councillors. The Senate had a nine-year term with one-third members retiring every three years. A minimum age of 40 years was fixed forthe membership of the Senate. It was co-equal in powers to the Chamber of Deputies except that money bills were to originate in the Lower Chamber.Three points may be noted about the Third Republic, though it lasted for a long period of seventy years. The first is that it was marked by extreme cabinetinstability. Between 1873 and 1940 France had 99 cabinets and out of them only 8 lasted for two years. The cabinet was entirely dependent on the goodwillof the legislature which it could not dissolve. While the Chamber could compel the ministry to resign through an adverse vote, the ministry could not getthe Chamber dissolved. Secondly, the Third Republic was socially very conservative. It was due to two reasons; firstly the second-ballot system favouredthe4middle-of-the road parties—the Radicals and Radical Socialists; secondly, the composition of the Senate was such as it heavily weighted in favour of thevillages and small towns as against the few metropolitan areas. Thirdly, once the Republic was established, there was no constitutional means of alteringit. Although the Constitution of 1875 was drawn up by an Assembly including a majority of Monarchists in such a way as to facilitate a transition fromMonarchy to Republic the irony is that the transition never took place. Once the Republicans got control of the regime, they quite deliberately excludedthe Monarchists. All attempts to strengthen the Cabinet or presidency against the legislature were defeated by the 'Republican defence.' Such attemptswere identified with anti-republicanism and counter-revolutionary.Fourth Republic (1944-58)France entered the Second World War as a deeply divided nation and without much enthusiasm. In the beginning it suffered heavy military reverses in theaftermath of which the Third Republic collapsed in 1940. The National Assembly called at Vichy abrogated the Constitution of the third republic and conferredauthoritarian powers on Marshall Petain to constitute new Government with its headquarters at Vichy, a place in South France. (The northern France wasunder German occupation). A kind of dictatorship was set up. However, during the Vichy regime, a resistance movement was started by General de Gaulle.On August 25, 1944 the German forces in France surrendered and General de Gaulle became the head of the Provisional Government. On 17th of August, 1945the French Government issued an ordinance outlining the electoral law under which the Constituent Assembly was to be elected. The Assembly elected on 21stof October met on 6th of November, 1945 and passed a new Constitution which was, however, rejected by the people of France on 5th of May, 1946. Then anew Constituent Assembly was elected in June and a new Constitution was drafted which was ratified on 13 th of October, 1946 and promulgated on 27th ofOctober, 1946.The Constitution of the Fourth Republic remained in force from 1946 to 1958. It was the result of compromise between several political parties and groupsand also represented a compromise of political ideals. The Constitution of the Third Republic had established unitary Government for both MetropolitanFrance and her overseas territories whereas the Constitution of the Fourth Republic provided for a unitary government for Metropolitan France. (Franceminus her possessions) and the Council of the French Union on the principles of federalism for5her overseas departments and territories and France. The Constitution declared Frame a Republic indivisible, secular, democratic and social and assignednational sovereignty to the people of France. It was a rigid constitution providing that the Republican form of Government could not be changed by anyamendment. Claiming to be panacea of the maladies of the Third Republic, the Constitution of the Fourth Republic abandoned the old second-ballot systemand instead provided for a system of proportional representation by list method. The old Senate was abrogated and a much enfeebled Upper House, calledthe Council of the Republic, was created. It was indirectly elected by much the same persons as before; but it was divested of the powers the Senate hadformerly possessed. It could not veto, though only delay; and if the Cabinet chose to invoke the so-called 'urgency procedure', the maximum delay was onlyone hundred days. Furthermore, the Council of the Republic could not (until 1954) amend a bill passed by the National Assembly; it could either acceptor reject. It was made the weakest second chamber in the world. The Chamber of Deputies, the Lower House, was named National Assembly by the Constitutionof the Fourth Republic. (Under the Third Republic the term. 'National Assembly' denoted a joint meeting of the Senate and the Chamber of Deputies).The status of the Cabinet and the prime minister was also raised by the Constitution of the Fourth Republic. The intention was to emulate the British patternand make the prime minister the leader of the assembly by giving him more powers. First, his administrative powers were increased. He was given the chairmanshipof the office of la function publique (the civil service) and of the Armed Services Committee. Such chairmanship gave him the patronage and control ofthe entire civil service and also put him at the centre of defence policy and foreign affairs. Second, his political authority in the assembly was increased.Though still formally appointed by the President, his appointment became real only when he appeared before the National Assembly with a statement of thepolicy he proposed to follow and succeeded in getting its vote of confidence by an absolute majority. Having secured Assembly's confidence he would thenselect his Cabinet colleagues. The Cabinet was simply his personal creature. The Assembly's power to overthrow Cabinets was substantially reduced. TheCabinet could only be forced to resign on formal votes of censure, or by the loss of a formal vote of confidence, by an absolute majority of the Assembly.Short of this it could remain in office; it was not6'overthrown' according to the constitution. The vole on motion of no-confidence could be taken forty-eight hours after the debate, thereby giving the deputiestime to reconsider what they were doing. The question of confidence could be raised only by the Prime Minister. Finally, the prime minister was given thepower to secure the dissolution of the Assembly and the holding of new elections. No dissolution could, however, take place until eighteen months of anew assembly's five-year period had elapsed. The prime minister could then dissolve, if there had been two cabinet crises within, at the most, six monthsof one another. These provisions were inserted so as to avoid a snap election immediately after the election of a new assembly and also to inform the assemblythat in case it overthrew cabinets at the average rate of one every six months it should be dissolved to face the verdict of the electorate. Although theConstitution of the Fourth Republic was drafted to cure the ills of the Third Republic, its provisions, however, never worked. Cabinets were not more stablethan under the Third Republic; rather they were less so. The Fourth Republic saw twenty-five cabinets between 1946 and 1958 with an average life of lessthan seven months while under the Third Republic it was nine. While there were some political factors responsible for the failure of the Constitution ofthe Fourth Republic to ensure political stability in France, its provisions were also defective. The appointment of the prime minister became real onlywhen he appeared before the National Assembly with a statement of his policy and succeeded in getting its vote of confidence. After having received theAssembly's endorsement by an absolute majority, he picked his team and again came to the Assembly for ratification of the composition of the cabinet hehad selected. This provision prolonged ministerial crisis and the premier designate once invested had to make commitments while later on he might not beable to persuade his Cabinet colleagues to accept. The endorsement clause became so difficult that in 1954 it was amended so that the endorsement becamevalid by only a relative majority of the assembly and the premier designate presented himself and his cabinet together for endorsement.It was also provided that the Cabinet need only resign if defeated by an absolute majority of the Assembly. New what was the utility and prestige of a cabinetremaining in office whose bills were overthrown by the Assembly by only relative majorities but not defeated in the constitutional way? What purpose wouldremaining in office serve? While the number of cabinets falling after a defeat by an absolute7majority during the entire life of the Fourth Republic was only five, it saw twenty-five cabinets. And because of this the automatic dissolution procedurebecame a dead letter. Only in one instance the Assembly was dissolved. When the Constitution said that after the first eighteen months of its life an Assemblymight be dissolved if two Cabinets were successively overthrown within a six months period, it made an important stipulation: that to be 'over thrown'meant over thrown in a vote of no-confidence by an absolute majority of the Assembly. And since nearly all Cabinets chose to fall, rather than be pushed,these 'over throwns' did not count so far as the dissolution was concerned.Thus the constitutional provisions of the Fourth Republic did not work and within a few years it was behaving just like the Third. The institutions of thenew Republic were governed by the old conventions. There were persistent deadlocks in the Assembly and the Governments due to their instability were unableto take urgent and necessary decisions. The deep and bitter political divisions added further to the agony of the Fourth Republic. A large number of electorsand parliamentary representatives were bitterly opposed to each other and to the regime. They prevented the Constitution from working properly. The Governmentsand the Assembly were alike powerless to act. General de Gaulle had opposed the Constitution from the very beginning. He resigned from the premiershipand retired from politics before it came into force. There was no real will on the part of the public and the politicians to defend the Fourth Republic.Disillusionment continued to grow at the failure of the Governments to solve the problems both at home and abroad. From 1955 onwards, there had been deadlockover both constitutional and electoral reform and over future of Algeria where a nationalist rebellion had broken out at the end of 1954. By 1958, therebellion showed no signs of being overcome. From September 1957 to April 1958, three Governments fell owing to the Algerian rebellion which created acabinet crisis. On May 8,1958 Mr. Pflimolin was designated prime minister who was to meet the Assembly on 13 May. On hearing this the revolutionaries inAlgiers decided to bring down the regime by striking on that very date. They plotted an insurrection in Algiers. The French Army in Algiers found the Governmentin France weak to meet the situation. The army leaders were contemptuous of the quarrels of the French Parliaments and the vacillations of French Governments,which, as they saw it, had already cost France the loss of Morocco, Tunisia and Indo-China and were now threatening the loss of Algeria. They were determinedto prevent8Algeria from going the way of Morocco and Tunisia and becoming an independent State. They were not in favour of negotiations with the Moslem nationalistsand were of the view that French victory in Algeria was essential and that French Governments were too weak and divided to guarantee it.Consequently, the French Army in Algeria combined with the settlers and revolted. It occupied all Government offices and demanded a Government of PublicSafety, headed by General de Gaulle. De Gaulle emerged from his retirement and on the afternoon of May 15, 1958 declared that he was ready 'to assume thepowers of the Republic' with a view to ensure the unity and independence of the country. The French parliamentarians were also of the view that to saveFrance from civil war General de Gaulle be 'invested' as he alone was able to achieve solution of the Algerian problem and to restore the authority ofthe state over the dissident element in the army and the public service. There was some difficulty over the 'investiture' as Frenchmen were divided intheir attitudes towards a new regime but finally it was achieved. On June 1, 1958, de Gaulle appeared in the Assembly as Prime Minister designate and wasaccorded confidence by 329 to 224, with full powers to govern by decree for six months during which period his Government was to draw up a new Constitutionto be approved by a referendum. The Fourth Republic transformed itself into Fifth Republic without bloodshed and with due respect for constitutional forms.Firth Republic (1958)De Gaulle, as stated above, had assumed office on the specific condition that he would be given a free hand for at least a period of six months. He formeda national cabinet in which were included a large number of prominent men of France. He was also able to pacify the rebels in Algeria. He assigned to MichelDebre, his most devoted and outspoken supporter, the principal responsibility for the drafting of the new Constitution. Assisted by a team of experts,Debre prepared the draft Constitution and on August 27,1958 presented it to the French Council of State, a group of high civil servants advisory to theGovernment on legal and Constitutional matters, for its opinion. On September 4,1958, General de Gaulle presented to the French people the draft of theConstitution that had been prepared under his authority. He delivered a momentous speech to a huge crowd at the Place de la Republique in Paris which openedthe campaign preceding the referendum of September 28. There were wide comments on the Constitution. The press and periodicals in France were full of discussions,political parties9elaborated its weaknesses while political scientists analysed its features. Though a vast section of the opinion was un favourable, yet the Constitutionwas approved by a majority of nearly eighty per cent. It has been said that the referendum of 28th September, 1958 was not a vote for a Constitution, buta vote for General de Gaulle.4The Constitution came into force on 7th of October, 1958. General de Gaulle was elected first president of the Fifth Republic in December, 1958 and Debre,the author of the Constitution, became the Premier.References1. Finer, S.E., "Comparative Government", p. 281.2. Neumann, "European and Comparative Governments", p. 179.3. Finer, S.E., op. cit., p. 266.4. Pickles, Dorothy, The Fifth French Republic, p. 24.102 THE NATURE OF THE CONSTITUTION"The Constitution of the Fifth Republic is 'tailor-made for General de Gaulle".—Dorothy PicklesThe Constitution of the Fifth French Republic was drafted by a small Ministerial Committee headed by Michel Debre under the authority of General de Gaulle.After having been approved by the Cabinet and the French Council of State, a group of high civil servants advisors to the Government on legal and constitutionalquestions, the new Constitution was submitted for the referendum of the people on September 28,1958 who approved it by a vast majority of nearly eightyper cent. It came into force on October, 4 1953.The Constitution contains a Preamble and 92 Articles. It has been described as 'tailor-made for General de Gaulle', 'quasi-monarchical', quasi-Presidential,a Parliamentary Empire, unworkable, 'the worst drafted in French constitutional history', and ephemeral. It has both Republican and Presidential characteristics.It is a Constitution in which diverse constitutional principles are sought to be combined, and whose general characteristics are difficult to describe.The truth is that it is a hybrid. Its main features may be described as follows:(i) Preamble: The Constitution of the Fifth Republic contains a preamble which reaffirms the Declaration of Rights of 1789. The Declaration of 1789 wasbased on the doctrine of 'natural law' and 'general will'. It guaranteed the right of free speech press, assembly, and religion, except when limited bylaw. It also provided for the right to private properly except when it is required for public cause. Just compensation was to be paid for acquisition ofsuch property. It also guaranteed the principle of government through representation, protection against arbitrary arrest, the prohibition of cruel andarbitrary11punishment, and the right of the accused to be presumed innocent until proved guilty. The new Constitution has added some more rights. It offers to theOverseas Territories institutions based on the ideal of liberty, equality and fraternity and conceived with a view to their democratic evolution. But aswe know, the Preamble is only a statement of principles without any legal basis. These principles cannot be enforced by any judicial action. They serveonly as signposts for the Government which is supposed to implement these principles through legislative enactments. In case a government ignores them,the remedy is not through legal process. The value of Preamble lies in the solemnity of its proclamation.(ii) Popular Sovereignty: Article 2 of the Constitution declares France as an indivisible, secular, democratic and Social Republic. The motto of the Republicis 'Liberty, Equality and Fraternity' and its principle is government of the people, by the people and for the people. National sovereignty belongs tothe people, who shall exercise this sovereignty through their representatives and by means of referendums. No section of the people, nor any individual,may arrogate to themselves or to himself or herself the exercise thereof. The constitution provides for universal suffrage and entitles all French citizensof both sexes who have attained the age of majority the right to vote. The political parties too have been given the right to freely form themselves andfreely carry on their activities; but they must respect the principles of national sovereignty and democracy.(iii) Rigid Constitution: Like the 1946 Constitution, the 1958 Constitution includes a special procedure - Article 89, for revision. According to this Article,a proposal for revision (which can come either from the President, or from private Members) must, to be effective, be voted first in identical terms byboth Houses of Parliament and then ratified by a Referendum or, if the President decides otherwise, by a three-fifths majority of both Houses, meetingas Congress. The republican form of government is not subject to revision. Under the Fourth Republic, the Assembly could dispense with the consent of theSenate by passing such resolution with a two-thirds majority, but under the Fifth Republic the Senate has an effective Veto. Its consent is obligatoryto seek before a constitutional revision can be brought about. In case the President decides not to submit a proposed revision to a referendum, such revisionmust first be passed individually by both Houses of Parliament in identical terms and thereafter by a three-fifths majority of both Houses, meeting asCongress, before it can be brought12on the Statute book. Although the procedure for revision under the Fifth Republic is relatively simple as far as the constitutional requirements are concerned,yet it is not particularly easy to apply looking to the multiple party system in France.(iv) A mixture of Parliamentary and Presidential forms: The Constitution of the Fifth Republic seeks to combine two very different principles - the principleof Parliamentary government and that of Presidential government. As a matter of fact, the constitutional text is an incomplete description of the systemof government and so it is difficult to label the Constitution as Parliamentary or Presidential. On the one hand, it provides for a democratic and Parliamentarysystem of government. The head of the State and the head of the Government are distinct entities. The Prime Minister appoints and dismisses his colleaguesand is responsible to parliament. The two Houses of Parliament are democratically elected. The judiciary is independent. The citizens enjoy fundamentalliberties, and are possessed of the right to equality before the law, without distinction as to origin, race or religion.On the other hand, however, the Constitution does reduce the authority of the Parliament. Under the Fourth Republic, the Assembly was really in charge oflegislation, the Government being obliged as a general rule to fight as best it could, for its Bills or its life, with the vote of confidence as almostits sole weapon. Only once i.e. in 1955 the Prime Minister could dissolve the Assembly. Under the Fifth Republic the Government is in charge of legislation,and even effective criticism by Parliament is difficult. The tendency towards 'government by assembly' characteristic of the Fourth Republic, has beenreversed under the Fifth Republic. The reason was that the Constitution was interested in ensuring more Governmental stability than the Parliamentary systemhad provided under the Third or the Fourth Republic.The 1958 Constitution also reverses the traditional relationship between the legislative and the rule-making authorities. Parliament is supreme law-makingorgan which delegates rule-making powers to the Government. Such powers can be withdrawn at its will by the Parliament. The 1958 Constitution has limitedthe power to legislate and has bestowed powers outside these limits to the Government. The President has been given enormous powers. General de Gaullehad said that the head of the State should be a representative of the nation rather than of Parliament and his functions should be those, not of an impartial13figurehead, but of a representative of the continuity of the State - 'an arbitrator above the accidents of political life.'1 While the head of state ina parliamentary Governments is a figurehead, the President of the Fifth Republic in France plays a positive role. Though he does not govern, he does morethan reign. The Presidency has been exalted at the expense of the Prime Minister and the Cabinet Thus the Constitution of the Fifth Republic may be saidto be quasi-presidential and quasi-parliamentary.(v) Separation of Legislative and Executive Powers: Another important feature of the 1958 Constitution is the separation of legislative and executive powersmaking Ministerial office incompatible with membership of Parliament. General de Gaulle's view was that executive power should not emanate from Parliamentor the result will be a confusion of powers which will reduce the Government to a mere conglomeration of delegated powers.2 Under the 1958 Constitutionthe Premier of France is nominated by the President. The Premier selects his team of ministers who are appointed by the President. Article 23 of the Constitutionspecifically provides that membership of the Government shall be incompatible with the exercise of any Parliamentary mandate. While the Governments ofboth the Third and Fourth Republics were normally made up of members of Parliament, the constitution of the Fifth Republic clearly forbids the holdingof both the offices - the Governmental office and the membership of Parliament(vi) The Constitutional Council: The 1958 Constitution of France creates a Constitutional Council which has been given the function of deciding on the constitutionalityof Governmental or Parliamentary acts. It replaces the Constitutional committee of the Fourth Republic. It has four distinct functions. First, it supervisesthe regularity of the election of the President of the Republic and of referenda, proclaims the results thereof, is responsible for declaring the Presidencyvacant if for any reason the President cannot carry out his duties, and decides cases in which the regularity of Parliamentary elections is contested.(Articles 58-60). Second, it must be consulted on the conformity with the Constitution of organic laws and Standing Orders of both Houses before theirimplementation (Article 61). Third, it must be consulted by the President regarding both the existence of an emergency and the measures that he proposesto take to deal with it (Article 16). Fourth, the Council's ruling may be sought by the President, the Prime Minister, or the President of either Houseas to the conformity with the Constitution14of an international agreement or a law about to be promulgated and on certain conflicts which may arise between the Government and Parliament regardingthe delimitation of executive and legislative competence. (Articles 61,54,41).It may be mentioned that the Council has no power to enforce its decisions. Its opinion is merely advisory. If the President, Government and Parliamentwere to agree to refrain from consulting the Council on a matter where Consultation is optional, then there is no means by which the Council could makeits views known. The citizens cannot appeal to it nor can any Court of Law. Its position is thus very much different from that of the Supreme Court ofthe United States.Nevertheless, on matters on which it must be consulted, or is, in fact, consulted, the Council can have and has had great influence in determining the constitutionalityof a number of Acts and Standing Orders.(vii) The Community: The concept of Community is an important innovation of the Constitution of the Fifth Republic. It is a sort of association betweenFrench Republic and its Overseas Territories and departments. It is something between a Federation and a Commonwealth. It has replaced the old conceptof French Union. The members of the Community have equal status. They enjoy autonomy, conduct their own administration and manage their own affairs democraticallyand freely. All citizens are equal in law, whatever their origin, race or religion and have the same duties. The Community consisted of the French Republicon the one hand and 12 former Overseas Territories on the other. These Territories had participated in the constitutional referendum of September 1958.However, soon after the promulgation of the 1958 Constitution the Overseas Territories, one after another, acceded to independence and the idea of Community,as originally conceived, had ended almost as soon as it had begun. The Constitution was accordingly revised to make independence compatible with membershipof the Community. Now a state can by a simple agreement determine the conditions on which it would become a member of the Community. All twelve statessigned agreements providing for close cooperation with France in a number of fields, but only six decided to remain within the Community. The members ofthe Community are all sovereign states, with the right to have their own representative abroad, with their own armies and their own currency. All are membersof the United Nations. The Community now is in a constitutional limbo and there is a 'Commonwealth Conference' type of contact between the seven membersof the Community.15(vii) Advisory and Judicial organs: Of the two advisory bodies set up by the 1958 Constitution one is Economic and Social Council. It gives its opinionon the government bills, drafts ordinances and orders and private members' bill submitted to it by the Government. It may likewise be consulted by theGovernment on any problem of an economic or social nature concerning the Republic or the Community. Any plan or programme of an economic or social naturehas to be submitted to it for its advice. Under the Fourth Republic also there was an Economic Council which was free to study and report on any matterwithin its field of competence and could be consulted by the Assembly as well as by the Government. The functions of the Economic and Social Council underthe Fifth Republic are somewhat changed. Its sessions are no longer public and much of its work is done in technical sections, to which outside specialistsare coopted. It is now primarily a technical adviser.Another advisory body is the High Council of Judges and Public Prosecutors. It is presided over by the President of the Republic. The Minister of Justiceis its ex-officio Vice-President. He may deputise for the President of the Republic. In addition, it consists of nine members appointed by the Presidentof the Republic sitting for four years and re-eligible for a second term only. Its function is to advise the Government on appointments to a limited numberof higher judicial posts, i.e., the judges of the quashing Court (Cour de Cassation) and the Presiding Judges of the Courts of Appeal. It shall also giveits opinion on the proposals of the Minister of Justice relative to appointments of other judges. It also acts as the disciplinary council for judges andshall be consulted on questions of pardon.Under the Fourth Republic the Higher Council of Judiciary had also been responsible for the general organisation of the courts of law and for ensuring independenceof judges. But when political considerations started influencing the appointments, these functions were returned to the Ministry of Justice. Under thepresent Constitution a number of ordinances and decrees have been issued for a comprehensive reorganisation of criminal procedure, for redistribution ofLaw Courts, and for improvements in the status and training of judges, designed to improve their quality.The function of the High Court of Justice set up under Aticle 67 is to try Presidents of the Republic on charges of high treason. It also tries Ministersand their accomplices on charges of plotting against the safety of the State. To bring individuals before it, both Houses must pass a16motion by identical vote in open balloting by an absolute majority of their members. Two changes of importance may be noted. Under the Fourth Republic,the decision to bring an individual before the Court was taken by the National Assembly alone, whereas under the Fifth Republic, it has to be taken byboth the Houses; second, the balloting is no longer secret.(ix) Political Parties recognised: An important feature of the 1958 Constitution is constitutional recognition of political parties (Article 4) and theirrole. In India or the United States the Constitution does not provide for any such recognition. As a matter of fact, political parties are extra constitutionalgrowth. For the first time, the French Constitution not merely mentions parties, but acknowledges them as a normal constituent of political life. Article4 speaks "Political parties and groups shall be instrumental in the exercise of the suffrage. They shall be freely formed and shall freely carry on theiractivities. They must respect the principles of national sovereignty and democracy." The Constitution, thus makes respect for democracy a constitutionalrequirement for the formation of political parties. In other words, a party whose loyalty to France and respect for democracy are not generally apparent,can be banned, should necessity arise.(x) Untidy, Vague and Ambiguous: The 1958 Constitution of France has been called an untidy constitution which is in some places vague, and in others ambiguous.3The Constitution does not completely describe the system of government and has omitted provisions for a number of extremely important institutions. Theelectoral laws, the institutions of the Community, the composition of two Houses of Parliament, the organisation of Judiciary, the functions of Economicand Social Council, the Higher Council of Judiciary, as well as a number of other matters are dealt with in a series of Ordinances promulgated betweenOctober 1958 and February 1959. Over 300 Ordinances are said to have been promulgated between this period. This vast number of ordinances, some of whichpurely deal with administrative matters, has made the task of constitution interpreters difficult. Further the 1958 Constitution was drafted in privateby a small Ministerial Committee presided over by General de Gaulle. It was never debated in Parliament which has deprived the constitution interpretersof the opportunity to know the precise shade of meaning given to this or that word or Article by politicians of different parties. This Constitution wasmade for General de Gaulle leaving to him to interpret it as suited his interests. Nothing has been published on the Ministerial discussions,17or on the opinions of the Council de Etat so that the intentions of the Constitution-makers could be known. Consequently, the Government is free to adoptits own interpretation. It is because of this vagueness and ambiguity of the Constitution that General de Gaulle created his own conception of Presidentialpowers and of the way these were to be exercised.References1. Speech delivered at Bayeux, June 16, 1946. Quoted in European Political Institutions by Andrews, W.G., p. 39.2. Ibid.3. Pickles, Dorothy, op. cit., p. 27.183 THE FRENCH EXECUTIVE"The keystone of our regime is the new institution of a president of the Republic, designated by the reason and feelings of the French people to be thehead of state and the guide of France."—General de GaulleWe shall consider in this chapter the two parts of the French Executive, one the President, and two the Cabinet.The PresidentHis Election: The President of the Fifth Republic is the keystone of the new parliamentary regime in France. Originally the Constitution provided for electionof the President by indirect universal suffrage through an electoral college, comprising the Deputies and Senators, the representatives of Overseas departmentsand territories and the representatives of the local authorities. In 1962 de Gaulle sought the amendment of Articles 6 and 7 through referendum. The amendmentBill met with a great deal of criticism in political and legal circles, but de Gaulle succeeded in getting his Bill approved by the referendum of 28thof October. So under the amended Articles the President is now elected by direct universal suffrage for seven years.President Mitterrand had hinted that two seven year terms were far too long and that he was contemplating change in the Presidential term. Mr. Beregovoy(of the right wing camp of socialist party) created ripples when he announced that he would propose limiting the Presidential office to a single 7 yearterm.1 This will ward off the possibility of President becoming dictatorial by too long a tenure. In order to be elected the candidate has to secure anabsolute majority of the votes cast. If this is not obtained in the first ballot, there shall be a second ballot on the next Sunday but one. Only the twocandidates who have won the greatest number of votes in the first ballot may stand in it.19The supervision of Presidential election, including the investigation of alleged irregularities and the promulgation of the result is entrusted to the ConstitutionalCouncil. In the case of a Presidential vacancy, the President of the Senate temporarily replaces the President until the President resumes his functions,or, if the Constitutional Council declares the President to be permanently incapacitated, until the election of a new President. The election of the newPresident shall take place not less than twenty days and not more than thirty-five days after the beginning of the vacancy or the declaration of the permanenceof the incapacity.His Powers: The 1958 Constitution endows the French President with powers in excess of those possessed by his predecessors under the Third and Fourth Republics.In a broadcast on September 20, 1962 de Gaulle said:"The keystone of new regime is the new institution of a President of the Republic, designated by the reason and feelings of the French people to be thehead of state and the guide of France. Far from requiring that the president must, as was once the case, remain confined to the role of advisory and representativefunctions the constitution confers on him the outstanding responsibility for the destiny of France and of the Republic. In accordance with the Constitution,the president is, in effect, the guarantor of the country's independence and integrity. In short, he is responsible to France. At the same time it fallsto him to ensure the continuity of the State, and the working of the public powers. To bear these responsibilities, the head of state must have adequatepowers. The Constitution gives them to him."2To briefly summarise, the powers of the president are as follows: (a) Executive Powers: Among these powers the president(i) appoints the Prime Minister and on his proposal the other members of the Government and terminates their appointment; (Article 8)(ii) presides over the Council of Ministers; (Article 9). (iii) makes appointment to the civil and military posts; (Article 13) (iv) accredits Ambassadors and envoys extraordinary to foreign powers and receives the foreign Ambassadors and envoys; (Article 14)(v) is the commander-in-chief of the armed forces and presides over the Highest National Defence Councils and commutes; (Article 15)20(vi) negotiates and ratifies treaties. In the recent past President Mitterrand adopting Gaullist tactics asked for referendum on the famous Maastricht Treatythough to achieve opposite end;3 (Article 52)(vii) presides over and represents the community; (Article 80)(viii) appoints three members and the president of the Constitutional Council; (Article 56)(ix) is to be informed of all negotiations leading to the conclusion of an international agreement not subject to ratification. (Article 52)(b) Legislative Powers: These powers are:(i) the President shall promulgate laws within fifteen days following the transmission to the Government of the said laws as finally adopted; (Article 10)(ii) he may, before the expiry of this time limit, ask Parliament to reconsider a law or certain of its articles; (Article 10).(iii) he shall communicate with the two parliamentary Assemblies by means of messages, of which he shall order a reading and which shall not give rise toany debate; (Article 18)(iv) he can summon extraordinary sessions of the Parliament apart from the sessions in which it meets ipso jure; (Article 30).(v) on the proposal of the Government during sessions, or on joint motion of the two Assemblies, the President may submit to a referendum any bill dealingwith the organisation of the governmental authorities, entailing approval of a Community agreement or providing for authority to ratify a treaty, whichwould affect the functioning of existing institutions; (Article 11).If the referendum decides in favour of the bill, the President shall promulgate it. On September 20,1992 famous Maastricht Treaty aiming at European Unionin political, economic and monetary offers was put to referendum and by slender margin the President's Party won; a personal victory of President.4(vi) He signs the ordinances and orders decided upon in the Council of Ministers; (Article 13).(vii) He can, after consultation with the Prime Minister and the Presidents of the Assemblies pronounce the dissolution of the National Assembly; (Article12)(c) Judicial Powers: Among these powers is included the power of the President to grant pardon (Article 17). Besides, he presides over the21High Council of Judges to which he nominates nine members (Article 65). The President is the guarantor of the independence of the judiciary. (Article 64).(d) Emergency Powers: Article 16 of the 1958 Constitution reads as follows:"When the institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfilment of its international commitmentsare under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of theRepublic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assembliesand the Constitutional Council.He shall inform the nation of these measures by a message.These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means offulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.The National Assembly may not be dissolved during the exercise of emergency powers."The emergency powers were exercised by de Gaulle in 1961 when the Four Generals' Revolt occurred in Algeria. The emergency lasted for five months. Duringthis period President De Gaulle assumed 'full powers' and issued a number of Presidential 'decisions' to deal with the emergency. In regard to the emergencypowers certain important points may be noted. Firstly, the President alone is entitled to decide when an emergency exists and what measures should be taken.His only constitutional obligation is to consult the Presidents of the two Houses and the Constitutional Council, but the assessment of the situation ishis own. Nothing in the constitution binds him to accept any assessment of the situation other than his own. Secondly, while the Parliament could sit 'asof right' and could not constitutionally be dissolved during an emergency, it could not restrict President's authority to take any 'decision' called forby the circumstances as seen by him. In other words, during an emergency it is for the President alone to determine how the different organs of Governmentwere to function and how to apply the provisions of the Constitution, that is, to interpret them, if necessary. In short, the President assumes unlimitedpowers during an emergency. The Constitution does not provide any real safeguard against the abuse of emergency powers by the President. It may also be22noted that it is for the President alone to decide when to end the emergency. Thus he may prolong it as long as he thinks proper. It may not be denied thatArticle 16 can be deliberately abused by a President seeking personal power and can even serve as technically legal cover for a coup d' etat.(e) Arbiter of the Constitution: Article 5 of the 1958 Constitution states that the "President of the Republic shall see that the Constitution is observed.He shall ensure, by his arbitration, both the proper functioning of the governmental authorities and the community of the State.He shall be the guarantor of national independence, the integrity of the territory and observance of Community agreements and of treaties."Under this Article, the President has claimed the right to interpret the Constitution. The Constitution has established a constitutional Council to determinethe constitutionality of organic acts, standing orders of the parliamentary Assemblies and the acts of Parliament but it is able to express an opiniononly when asked to do so. The citizen cannot make appeal to it. Furthermore, six of the nine members of Council are president's men, three nominated byhimself and three by the president of the Assembly. General de Gaulle freely exercised this right to interpret the Constitution in his own way. Under suchinterpretation he took over personal control of foreign policy and the responsibility for decision-making and used referendum as an instrument of personalpresidential power. The following two pronouncements by General De Gaulle during Algerian crisis illustrate this point very well."I consider it necessary to proclaim here and now that there will be self-determination. In the name of France and of the Republic, and by virtue of thepowers attributed to me by the Constitution to consult the citizens. I pledge myself, provided God grants me life and people listen to me, to ask the Algerianson the one hand, in their twelve departments, to state definitely what they wish their future to be and the French, on the other hand, to approve thischoice."* * *"In the name of France I have taken the following decision... self determination is the only policy worthy of France, the only possible solution. It isthe solution defined by the President of the Republic, decided by the Government, approved by Parliament and adopted by the nation."523It has been easy for De Gaulle to skirt round the authority of the Parliament, the Government and the Constitutional Council and to take refuge in Article5.His Position: From a perusal of the powers of the French President under the Fifth Republic it is clear that the Constitution has endowed him with powersin excess of those possessed by that office under the Third and Fourth Republics. The authority of the President is onerous and powers enormous. Hencethe Indian scholars compare him with three headed mythical Brahma, incarnation of National Unity, the supreme head of the Executive and the arbiter betweenthe various powers in the country. He retains all the former powers, for instance, he presides over the meetings of the Cabinet, exercises the power ofpardon, countersigns government bills, promulgates laws passed by the parliament, appoints high civil and military offices, and so forth. But in addition,he gets more powers. For instance, he now 'negotiates' treaties (Article 52), whereas under the previous Constitution he was merely 'kept informed' ofthe negotiations. The list of offices to which he has the right of appointment is far longer than that contained in the 1946 Constitution. The Presidentnominates the Prime Minister and the members of the Government proposed to him by the Prime Minister, without having to go through the intermediate stageof designation. In one respect, he has somewhat less opportunity of independent action. To exercise the right of pardon he now requires a counter signature(Articles 17,19) of the Prime Minister, whereas the 1946 Constitution did not mention this requirement, like his predecessors, the President is politicallynot responsible for acts carried out by him in pursuance of his functions except in the case of high treason.General de Gaulle, the first President of the Fifth Republic instead of taking a back seat, as is done by Republican Presidents, has indubitably occupiedthe driving seat and has intervened in most fields of domestic and foreign policies. He regarded both Government and Parliament as being mere agents ofthe President. He actually governed and took direct decisions even without consulting the Prime Minister. The tone of his announcements made it clear thathe considered himself not only 'France's guide and head of the Republican State', but also that he intended to exercise 'supreme power in full'. He spokeof bearing on his shoulders the destiny of the country, of his mandate from the people, and of the 'legitimacy of which I have been the incarnation fortwenty years'. He spoke in terms of T. He made frequent use of the device of referendum to seek a mandate for his decisions, though the constitution24did not give him any such power. Under Article 11, initiative in the matter of referendum belongs to the Prime Minister or to Parliament. The Presidentmay refuse to submit to a referendum any bill; but the proposal must come from the government or the legislature. By passing the Parliament and the GovernmentDe Gaulle made referendum a normal feature of governmental. Instead of leaving Parliament to legislate he chose to legislate by referendum. He regardedParliament as a subordinate machine, and, at worst, a nuisance.Similarly, De Gaulle regarded himself the 'arbitrator' of the Constitution and Saviour of the nation who was destined to the instrumental in dawning theera of stability and prosperity not only for this generation but also for generations to come. He remarked "it was my duty to exercise the powers of Headof State so that France might... make an unprecedented stride forward in her development.6" He interpreted Article 5 to mean what it suited him to mean.Article 20 entrusts policy-making to the Prime Minister and his Government, not to the President. But De Gaulle assumed responsibility for decision-makingon himself. In the vital matters of defence, foreign affairs and Algerian affairs he used to decide the French policy and intervene directly in the processesof government. Decisions were simply communicated to Ministers by him, if not imposed by him, and of course not always with their knowledge or consent.The declaration of 16th September 1959 on Algerian self-determination was made by the President in a televised broadcast, after the 'general outlines'of what he was to say had been communicated to the Council of Ministers. He was personally responsible for determining France's attitude towards N.A.T.O.,for a number of definitions on the basis of France's defence policy, for proposals on her role in European affairs and for statements on France's attitudeto the Berlin problems. There had been numerous occasions on which De Gaulle contradicted previous statements by his Prime Minister, who was obliged toeat his words.In short, the two headed executive became a single-headed one in every major respect. It was the President, General de Gaulle, who decided and the PrimeMinister and his Cabinet simply managed and executed his decisions. The Prime Ministers regarded themselves as the personal appointees of the presidentand hence was always at his disposal. The ministers were effectively hired and fired by de Gaulle. He used his dissolution power, in 1962 - when it suitedhimself - not his ministers. He invoked the emergency power when it was manifest that the "regular functioning of the constitutional authorities" was25continuing. Through the complicity of his prime ministers he used the referendum power both as a personal plebiscite and to amend the Constitution in 1962in flat contradiction of Article 89. "At all times, in all matters in which he chose to take a personal interest, it was he who communicated to his primeminister the decision to be taken by him and his ministers."7It is thus clear that during the presidency of General de Gaulle the spotlight remained focused on him. Both the Government and Parliament were his mereagents. He ruled as well as reigned. He exercised supreme powers to the full and even if some of his decisions were not strictly constitutional, the nationallowed him to have his way which trusted the President far more than it did the Prime Minister. Although the successive Presidents George Pompidou, ValeryGiscard de' Estaing and M. Francois Mitterrand have not been a assertive and powerful as de Gaulle, nor their personality so dynamic as to have hold overtheir party or the electorate as the General possessed.On May 7, 1995 Jacques Chirac became the fifth President of France. It ushered in the dawn of a new era as after a period of 14 years the socialists ceasedto rule. Chirac ousted his socialist rival - Lionel Jospin obtaining 52 per cent of the vote as against Jorpin's 48 per cent. Chirac had tried earliertwice in 1974 and 1988 and had been defeated. So the election of a conservative President puts to end an irritating friction in the national life of Francebetween Mitterrand and Chirac. Both former P.N. Balladour, extreme Right candidate and Philippe de Villiers exhorted their supporters to vote for Chirac.Besides, the National Front leaders under the leadership of Jean Marce Le Peirs transferred their votes to Chirac who has been constantly branding thedanger of a socialist victory.7A Thus after a lapse of 21 years (since President Pompidou's death in 1974) the Gaullist are once again triumphant. However,it may not mean return of Gaullism. Chirac is hardly a committed Gaullist. His advocacy of Mastricht treaty and realisation of a single currency for Europein 1999 reflects a clear drift from Gaullism. He is not expected to come in confrontation with U.S. or Canada as was done by de Gaulle on Vietnam and Quebecissues respectively. Chirac inherits a troubled legacy. France of yore is fast fading. Its go-alone diplomacy is no longer relevant to the times. He isconfronted with problems, complex and baffling. His slogan "too much tax kills taxation" is likely to aggravate the situation and add to his woes. Timewill show whether or not he will be able to deliver the goods and complete some of the unfinished tasks. Hence his dynamism is yet to be tested now whenhe is at the helm of affairs.26It can be said that the Constitution of the French Fifth Republic makes the presidency "hyper-presidential because it compounds the strengths of the executivesof the U.S.A. and Britain while being subject to the limitations and constraints of neither."8 Unlike the President of the U.S.A., the French Presidentis not restrained by an independent Congress or the constraint of the Supreme Court's judicial review, besides the limitations imposed by federalism. Unlikethe British Prime Minister, the French President is constitutionally irresponsible as he is neither accountable to nor removable by the legislature. Onthe other hand, the French President enjoys all the powers and authority possessed by both of them, rather more in some respects. According to Campbelland Chapman "The President's influence will depend on the personality of the man and on what type of men Parliament will accept as ministers. If the articlesregarding the Cabinet and Parliament are applied the President will neither be directing force once advocated by de Gaulle nor the directing force fearedby some critics of constitution." The French Constitution of 1958, as discussed in the previous Chapter, was designed by de Gaulle to meet the politicalcrisis created by insurrection in Algeria and to bring stability and order in the French governmental system which it lacked miserably under the Thirdand Fourth Republics. Hence it laid more emphasis on presidentialism than on republicanism or democracy. General de Gaulle through his style and personalitybrought a sea change in the office of President. Among the many articles of the new Constitution those governing the functions and powers of the Presidenthave been the most severely and the most generally criticized. Even after the exit of de Gaulle from political scene the President retains his hold overthe Government and is not a mere figurehead.Michael Stewart remarks "As the Constitution stands a President could either make himself effective Head of Government as well as Head of the State withthe Prime Minister as little more than a senior member of his cabinet or he could be content with nominal and advisory powers leaving the main work tothe Prime minister."The Prime MinisterThe Constitution of the French Fifth Republic provides for a parliamentary form of government with a strong President. As such the position of the FrenchPrime Minister lies midway. Under Article 8 the Prime Minister is appointed by the President. He may appoint any person to that office. He need not haveto be the member of the parliament. This procedure of appointment is utterly different from the27procedure under the 1946 Constitution. Under the old Constitution the president had to hold consultations with the parliamentary parties and then 'designate'(not appoint) the prime minister who could not be appointed by the president until or unless he had received a confidence vote in the Assembly. Now underthe new Constitution the president can appoint whomsoever he pleases without consulting any person or party. The prime minister remains in office so longas he enjoys the confidence of the Assembly. The president cannot dismiss him, unless he chooses to present his government's resignation. For example inMarch 1986 President Mitterrand appointed J. Chirac the leader of the right-wing coalition as the prime minister. The coalition had captured 291 seatsin a 577 member House.In 1993 General Elections in France Balladour, a conservative, was chosen as the Prime Minister by socialist President Mitterrand (who faced elections in1995 and was ousted). In a House of 577 members 80 per cent seats were captured by RPR (Rally for the Republic) and UDF group-right wing alliance. Thushistory repeated itself and a new era ushered in. The President and the Prime Minister belonged to opposing political parties but Mitterand described thenew Prime Minister as the only suitable person to lead the new government. Despite opposition by his coalition partners, viz., Bernard Pous (RPR GeneralSecretary), the former Prime Minister Jacques Chirac hardliners P.M. Ballard portrayed working with the socialist President as "cohabitation" a workablepreposition.8A As it is said Frenchmen change their ministries as often as they change their shirts. P.M. Alian Juppe, a conservative who could see eyeto eye with Chirac on the face of development of the French economy and evolve a new Asia Pacific policy was replaced by Lionel Jospin—a socialist on June5, 1997.8B Chirac affirmed that he would like the cohabitation or power sharing exercise with Jospin to be constructive.8CHis Powers and Position: The Prime Minister selects his ministers who are appointed by the President. He cannot shuffle his cabinet as he likes. Recentoutburst of outgoing P.M. Edith Cresson on April 2,1992 clearly reflects this. She accused the President for not allowing her to get rid of nonfunctioningministers. The ministers shall not be the members of any House of the Parliament. Article 23 provides: "Membership of the government shall be incompatiblewith the exercise of any Parliamentary mandate, with the holding of any representational office at national level in a trade organisation and with anypublic employment or professional activity." This 'incompatibility' rule was inserted in the Constitution with the hope that it would help to28increase Governmental stability, since the Deputies might hesitate to turn Governments out in the hope of obtaining office, if the price was to be givingup their seat in the Assembly.Regarding the powers and functions of the Prime Minister, Article 21 reads as follows:"The Prime Minister shall direct the conduct of government affairs. He shall be responsible for national defence. He shall ensure the implementation oflegislation. Subject to the provisions of Article 13, he shall exercise the power to make regulations and to make appointments to civil and military posts.He may delegate certain of his powers to Ministers. Should the occasions arise, he shall deputize for the President of the Republic as chairman of the councilsand committees provided for under Article 15.On an exceptional basis, he may deputize for him as chairman of a meeting of the Council of Ministers by explicit delegation and for a specific agenda."The De Gaulle Constitution, it may be noted, makes a subtle distinction between the President and the Government. The institution of President has beendescribed under Title Two, whereas the institution of Government has been described under Title Three. While the President remains the 'supreme arbiterof the state', the Government "shall determine and conduct the policy of the nation."As we have seen earlier, the Prime Minister during De Gaulle's regime was reduced to a nullity. The Prime Minister is entirely and purely the choice ofthe President who can appoint any person to this vital office without consulting any group. The ministers, though selected by the Prime Minister, are appointedby the President who can again refuse any person selected by the Prime Minister to be the Minister. The Council of Ministers is presided over by the Presidentand not the Prime Minister. The policy of the nation is actually determined by the President. De Gaulle decided the French policy on Algeria and was personallyresponsible for determining France's attitude towards N.A.T.O. and to the Berlin problem. The Prime Ministers of General de Gaulle simply managed and executedhis decisions. They regarded themselves as his appointees and were always at his back and call. It was he who communicated to his Prime Minister the decisionto be taken by him and his ministers. If the Prime Minister proved recalcitrant the president induced him to resign and appointed his successor. (Debreresigned over de Gaulle's Algerian policy.) The President can refuse to hold a referendum proposed by the Prime Minister. De Gaulle, as29pointed out earlier, freely used the device of referendum to seek a mandate for his policy vis-a-vis the Government and Parliament. Under his regime, the'bicephalous executive' became a single-headed one.On April 3,1992 French Prime Minister Edith Cresson was made to tender resignation despite her pleadings with President Mitterrand to be allowed to continuewith reshuffled cabinet. She was forced to resign on account of drubbing the ruling socialist party received in regional elections held on March 22, 1992.When she was named P.M. in May 1991 she had the highest approval rating in the history of V th Republic. In her resignation she expressed bitterness atthe constraints under which she was obliged to work ever since she became the P.M. She was not allowed to reshuffle her cabinet and get rid of white elephantsof the Socialist Party.9After March 1993 elections the new Prime Minister, Mr. Balladur declared that a President and Prime Minister from opposing political families could runthe country with civility and understanding. In this context the 1995 Presidential election assumes great significance. If the President and P.M. belongto the same party, the P.M. matters. But if they are drawn from two different parties as is the case at present the President asserts effectively and theP.M. is relegated to the background. Chirac is a conservative President whereas newly elected P.M. Lionel Jospin is a socialist. In June 1997 the Leftswept the polls in France and an era of possible conflict between President and P.M. was ushered in. In his first address to the Nation on France Nationalday on July 14, 1997 he said, "He would not be an inert President but would have his say and would intervene wherever he saw fit... and if he felt thatthe country's social cohesion was threatened". In his veiled threats to the socialist government and its P.M. Chirac reiterated that his role was not limitedto formulating the country's foreign policy or ensuring its defence. He saw himself as the guarantor of international treaties... a guardian of the economicstrength and position of France in the world."9A Chirac emphasised that the constitution vested pre-eminent authority with the President. He remarked,"I do not think that there are reserved or shared domains in the constitution between the President and Prime Minister. The constitution gives pre-eminenceto the President". Catherine Trantmanen, Minister of culture9B—the government spokesman on the other hand retorted, "During the cabinet meeting the P.M.spelled out the prerogatives of the President and the P.M. under the relevant articles of the constitution. He recalled the institutional and politicalresponsibilities conferred upon him by these articles." 30The constitution largely entrusts full control to the President over defence and foreign policy but leaves the rest to the P.M. It is evident that Presidentcan be obstructive if he so chooses.Thus it may be said that the position of the French Prime Minister pales into insignificance when compared to that occupied by Prime Ministers in Indiaand the British Prime Minister. The Constitution of the Fifth French Republic has exalted the presidency at the cost of the Prime Minister and the Cabinet.Council of MinistersIts formationThe Council of Ministers is next to the President in order of importance. It consists of a Prime Minister and other ministers whose number has not beenfixed by the constitution and varies from time to time. Article 8 refers to its formation. The Prime Minister is named by the President only if his predecessortenders resignation of his government. Other ministers are appointed by the President but on the recommendations of the Prime Minister. The ministers aredismissible by the President on the advice of the Prime Minister.Functions of the Council of MinistersThe constitution does not refer to the functions of the Council of Ministers. Some of its prominent functions are categorised as under:Legislative: Article 38 lays down "The Government may in order to carry out its programme, ask parliament for authorisation to take through ordinances duringa limited period, measures that are normally within the domain of law. These ordinances will be enacted in meetings of Ministers after consultation withthe Council of State, the highest appellate tribunal for Administrative law in Fiance." It is evident that the council of ministers can enact ordinances.These ordinances come into force upon their publication but they become null and void if the Bill for their ratification is not submitted to Parliamentbefore the date set by the Enabling Act. Bills are discussed in the Council of Ministers after Consultation with the Council of State.The Council of Ministers is empowered to declare a parliamentary bill or an amendment thereto inadmissible if it appears in the course of the legislativeprocedure that either of the two is not within the domain of law. Martial law also can be decreed at a meeting of the Council of Ministers only but itsprolongation beyond 12 days may be authorised only by Parliament. Section 20 also makes it obligatory for the Council of Ministers to be accountable tothe parliament.31Executive: The Constitution proclaims that the Government shall determine and conduct the policy of the nation and that it shall have at its disposal theadministration and the armed forces.Besides, it is in the Council of Ministers that the Councillors of the State, the Grand Chancellor of the Legion of Honour, ambassadors and envoy extraordinary,Master Councillors of the audit office, Prefects representatives of the Government in the Overseas Territories, General Officers, rectors of Universitiesand directors of central administration are appointed.Financial: In financial domain also the council possesses some powers. Article 47 says "If the parliament has not finished the finance bill within seventydays, the provisions of the Bill may be put into force by ordinance and if the draft budget of proposed annual revenue and expenditure has not been tabledsoon enough to be promulgated before the start of the financial year, the Council of Ministers asks parliament as a matter of urgency to let it levy taxesand allocate by decree funds to services already approved.Obviously, it is innovative and unique and perhaps unparalleled in democratic world.Limitations on Ministers, Authority: Article 49 enjoins upon the Council of Ministers to be responsible to the National Assembly for its programme and declarationof general policy.If the National Assembly disapproves the General Policy or adopts a motion of censure, the Premier must hand over the resignation of the 'Government tothe President of the Republic.Besides, according to Article 68, members of the Government are criminally liable for action performed in the exercise of their office and rated as crimesor misdemeanors at the time they were committed and for conspiracy against the security of the state. (In all such cases the High Court shall be boundby the definition of crimes and misdemeanor as well as by the determination of penalties, as they are established by the criminal laws in force when theacts are committed).A critical analyses of the powers of the Council of Ministers reveals that it is not the Government in action unlike that of Council of Ministers in U.K.or India. Its legislative and financial powers can hardly be compared with that of its counterparts in parliamentary democracies. Its executive powersare also not so impressive. It holds itself responsible to the National Assembly though it is dismissible by the President of the Republic. In a way ithas to be a suppliant tool of two masters - the President and the Assembly. Since recommendations32for their removal are to be made by the Prime Minister to the President they have to appease the Prime Minister as well. This makes the position of theCouncil of Ministers fairly precarious and ineffective. As such it can hardly be compared with the British or Indian Cabinet or Council of Ministers whichin fact constitute the Government.References1. Cartoline Walls: France dilemma or European Union-Hindustan Times dated May 14, 1992.2. Quoted by Finer, S.E., Comparative Government, p. 319.3. Hindustan Times, dated May 14, 1992.4. Ibid, September 21, 1992.5. Quoted by Dorothy Pickles, op. cit., p. 139.6. French Affairs 183: Embassy of France Press and Information Service (Nov 4, 1957) pp. 1-2.7. Finer, S.E., Comparative Government, p. 305.8. Ibid., p. 332.8A. Times of India, April 12, 1993.8B. Hindustan Times, dated June 6, 1997.8C. Ibid, dated July 19, (1997) (Paris News from Caroline Wells).9. Hindustan Times, dated April 3, 1992. 9A. Ibid, July 19, 1997.9B. Ibid.334 THE FRENCH PARLIAMENT"Constitutions cannot impose unity and discipline, if none exists. Nor can they, with impunity, make too violent a break with tradition."—Dorothy PicklesLike other parliaments of top democracies of the world French Parliament is bicameral like its prototype in the IV th Republic.Its Composition: The French Parliament under the Fifth Republic consists of two Houses, namely the National Assembly and the Senate. The National Assemblyis the lower and popular chamber whereas the Senate is the upper chamber. Unlike the British monarch the French President is not a component part of ParliamentThe Constitution makes no mention of the system of election. It only says that the Deputies of the National Assembly shall be elected by direct suffragewhite the Senate will be elected by indirect suffrage. The number of members, their emoluments, the conditions of eligibility and ineligibility and theoffices incompatible with membership of the Parliament have been determined by Organic Acts.As per these Acts the National Assembly has 465 plus Overseas Deputies. The total membership is 577. It is elected through two ballot systems in singlemember constituencies. The candidates have to obtain an absolute majority of the votes cast in the first ballot and a simple majority in the second ballot.The representation is on the basis of one seat for 93,000 inhabitants. The life of the Assembly is five years, but it can be dissolved earlier. As regardssuffrage it is universal, equal and secret. A French national of both sexes who has reached majority and enjoys civil and political rights is eligibleto cast vote under the conditions to be laid down by the Law.34The Senate consists of representatives of the territorial entities of the Republic. Thus its membership of 307 is divided between Metropolitan France, overseasdepartments, overseas territories and the French citizens living abroad. The Metropolitan seats are 255 in number which are distributed on the basis ofdepartments. (The department is a local unit like municipal committee in India). Each department has one seat for the first 1,50,000 inhabitants and additionalones for each additional 2,50,000 or fraction thereof. Each electoral college is composed of (i) the local parliamentary deputies; (ii) the members ofthe departmental councils; and (iii) representatives of the municipalities according to the size of the various municipal councils. Under the new Constitutionthe rural areas are better represented. Besides, communes with over 9,000 inhabitants choose their delegates by proportional representation; those withless population choose by absolute majority, allowing three ballots to attain this. The colleges thus chosen elect the senators. In the seven largest departments,entitled to five seats or more each, proportional representation was introduced; whereas in the other departments the members are elected by majority voteand the second ballot system. The term of the Senate is nine years, one-third renewable every third year. The minimum age for a Senator is 35 years, whilefor a Deputy it is 23 years.Privileges of the Members of Parliament: Article 26 of the Constitution mentions the privileges of the members of Parliament. No member of Parliament maybe prosecuted or subjected to inquiry, arrest, detention or trial on account of opinions expressed or votes cast in the course of his or her duties. However,he remains responsible for anything said or published outside Parliament. While Parliament is in session, proceedings may not be taken against him foranything said or done in their private capacity, unless the House of which he is the member decides, by a vote, to suspend the immunity. Exceptions tothe rule are minor offences, the penalty for which would not prevent him from carrying out his or her parliamentary duties, and serious offences in whichthe member is caught flagrante delicto. When Parliament is not in session, proceedings are possible but, except in cases where the arrest is flagrantedelicto, or where a court has made a final finding of guilt, or where arrest has been authorised in a previous session, the member may be arrested onlywith the authorisation of the bureau of the House. The detention or prosecution of a member of Parliament shall be suspended if the Assembly of which heor she is a member so demands. Mandatory instructions to member of Parliament are null and void.35Article 27 of the Constitution makes the right to vote personally i.e., it prohibits voting by proxy. Under the Fourth Republic proxy voting was very commonand large so much so that debates which were in actual fact conducted before almost empty benches were followed by votes including upwards of 75 per centof the membership of the House. Now a member may delegate his vote for five reasons only, duly notified in writing in advance. They are: absence on groundsof illness; accident or family circumstances; absence on a Government mission or on military service; absence from France on the occasion of a specialsession; or owing to representation of the Senate or the Assembly at a meeting of an international Assembly. Even under these circumstances no member maycast a proxy vote for more than one of his colleagues at a time.The Constitution requires members not only to vote in person, but to vote regularly. The members receive 'attendance bonus' if their attendance is satisfactory.They are penalised for non-attendance. The Assembly's Standing Orders provide that absence from three consecutive commission sittings without valid explanationentails member's resignation from the Commission and the loss of a third of the attendance bonus. Absence without a valid explanation from more than athird of the votes by ballot in any month entails the loss of a third of the monthly attendance bonus. Two-thirds of the bonus is forfeited in the caseof absence from more than half the votes. It may be noted that 'attendance' means presence for the vote, not for the debate.Sessions: The Parliament meets ipso jure twice a year. The first session starts on April 2 and the second on October 2. The first session deals mainly withthe budget, the second with the legislative programme. Extraordinary sessions may be held only if convened by the President of the Republic at the requestof the Prime Minister or of a majority of the members of the National Assembly, to consider a specific agenda. If called at the request of the Assemblymembers, the session must be closed as soon as the agenda has been completed, and, in any case, after a period not exceeding twelve days.At the beginning of the October session, each House elects the bureau, consisting of its President, Vice-Presidents (six for the Assembly and four for theSenate), Secretaries (twelve for the Assembly and eight for the Senate), and the Questeurs (three for each House). The functions of the bureau as a collectivebody are to organise and supervise the different services in the Assembly, and, if required, to advise the President of the Assembly particularly on disciplinarymatters and the admissibility of Bills or resolutions.36The PresidentsThe President of the Assembly is elected at the first meeting of the session, which is presided over by the oldest member. Formerly he was elected annuallybut now he is elected for the duration of the Assembly. The President of the Senate is elected for a period of three years, i.e., until the next partialrenewal. The ballot is secret For election at a first or second ballot, an absolute majority is required, but a relative majority only is required at thethird ballot. Both the Presidents no longer depend upon the mercy of the Chambers every year. It has resulted in enhancement of their prestige and ensuringof their independence and impartiality.The Presidents carry out the normal functions of chairmen. Thus they regulate business in the House, maintain order and discipline, put Bills to vote andannounce the result and interpret the rules of the House. Besides these normal functions, the President of the Assembly has certain new functions. He mustbe consulted by the President of the Republic as to the existence of an emergency as defined by Article 16. A private member's Bill or amendment whichthe President of the Assembly believes to be constitutional, but which the Government has challenged as unconstitutional, must be either submitted by himto the Constitutional Council or ruled out of order. Though the Presidents do not have the unchallenged authority of the Speaker of the British House ofCommons because they remain active members of their respective parties, yet they command a prestigious position.Powers and Functions of the French ParliamentThe powers and functions of the French Parliament may be described as follows:(1) Legislative Powers: The Parliament is primarily a legislature. It's law-making authority has been listed in Article 34 of the Constitution. Under thisArticle the Parliament shall: (a) establish the rules concerning:(i) civil rights and the fundamental guarantees granted to the citizens for the exercise of their public liberties, the national defence obligations imposedon citizens in respect of their persons and property;(ii) nationality, status and legal capacity of persons, property rights arising out of a matrimonial relationship, inheritance and gifts;(iii) determination of felonies and misdemeanors, together with the penalties applicable to them, criminal procedure;37amnesty; the creation of new jurisdictions and the status of judges; (iv) the assessment bases, rates and methods of collective taxes of all types; the issuance of currency. (b) determine the regulations concerning(i) the electoral systems of the parliamentary Assemblies and local Assemblies;(ii) the creation of categories of public establishments; (iii) the fundamental guarantees granted to civil and military personal employed by the State; (iv) company nationalisation and transfers of company ownership from the public to the private sector, (c) determine the fundamental principles of(i) the general organisation of national defence; (ii) free local government and the powers and resources of local authorities; (iii) education; (iv) the rules governing property rights, civil and commercial obligations;(v) labour and trade union law and social security. (2) Executive Powers: Under the Constitution of the Fourth Republic the National Assembly had an effective voice in the appointment of the Prime Ministerand his Ministers. The Prime Minister designate chose his cabinet and presented it and himself to the Assembly to obtain its confidence for the programmeand policy he intended to pursue. If the Assembly rejected his programme, it amounted to a vote of censure and he along with his Ministers designate couldnot be appointed by the President. The 1958 Constitution has abolished this 'investiture' ceremony and as such the Assembly does not have any say in theappointment of the Prime Minister and his Ministers. Yet the Constitution makes him and the Council of Ministers responsible to the Assembly. Article 49provides as follows:"The Prime Minister, after deliberations by the Council of Ministers, may commit the Government's responsibility before the National Assembly with regardto its programme or, should the occasion arise, to statement of general policy."The National Assembly may challenge the responsibility of the Government by passing a motion of censure. Such a motion shall be admissible only if signedby at least one-tenth of the members of the National Assembly. The vote may not take place until forty-eight hours38after the motion has been tabled; the only votes counted shall be those in favour of the motion of censure, which may be adopted only by a majority of themembership of the Assembly. Should the motion of censure be rejected, its signatories may not introduce another such motion in the course of the same session,except in the case provided for in the following paragraph."The Prime Minister may, after deliberation by the Council of Ministers, commit the Government's responsibility to the National Assembly on the passingof a bill. In this case, the text shall be regarded as carried unless a motion of censure, tabled within the succeeding twenty-four hours, is passed underthe conditions laid down in the previous paragraph."Under Article 50, if the National Assembly adopts a motion of censure or rejects the Government's programme or a general policy statement by the latter,the Prime Minister must tender the Government's resignation.It may be noted that Article 49 provides three methods of enforcing Government's responsibility to the Parliament First, when the Government commits itselfbefore the National Assembly for its programme or a statement of general policy. In this case if the Assembly rejects the programme or policy by a majorityof those voting, the Government resigns. Second, the Assembly on its own can move a motion of censure and pass it by a majority of its effective membership.The Government resigns if the motion is so carried. Third, the Government may commit itself with regard to a Bill. If the Government does so, the Billis considered to have been carried unless a motion of censure has been tabled within twenty-four hours. In addition to the above methods, the Parliament controls the executive through commissions, questions written or oral, resolutions, debates over the Governmentbills and refusal to pass the budget. The Parliament can impeach the President for acts of high treason who shall, however, be tried by the High Courtof Justice. The High Court of Justice consists of members elected in equal number by the National Assembly and the Senate from within their ranks.(3) Financial Powers. The Parliament controls the finances of the nation. The Government prepares the Budget and places it first before the National Assembly.After being passed by the Assembly it goes to the Senate which enjoys co-equal powers. The Budget must be passed by both the Houses in identical termsand if they disagree, the procedure under Article 45 is adopted. In order to prevent the Assembly from39using delaying tactics. Article 47 of the Constitution provides that if the Assembly has not completed the first reading within forty days, the Governmentshall refer it to the Senate, which must come to a decision within a fortnight. If the Budget Bill has not been voted after 70 days, the Government mayapply its provisions by ordinance. If the Government has failed to introduce the Finance Bill in time for it is to be promulgated by the beginning of thefinancial year, it may ask Parliament to authorise taxation by decree and authorise expenditure in respect of any estimates previously accepted by theAssembly. According to Macrides and Ward, the 1958 Constitution consecrates the executive budget".1 It is unimaginable to think of executive budget inRepublican form of government.The Parliament does not have any right to propose amendments to a Finance Bill, if their adoption would result in an increase in expenditure or decreasein revenue. It has however, the other right, the right to propose cut in expenditure. The right of the Parliament to reject the budget altogether may enableit to secure some concessions from the GovernmentThe Cour des Comptes (Audit Court) assists the Parliament and the Government in supervising the implementation of the finance acts.(4) Electoral Powers: The Presidents of the National Assembly and Senate elect three members each to the Constitutional Council. The members of the HighCourt of Justice are elected in equal number by the National Assembly and the Senate from within their ranks. The Senate of the Community is composed ofdelegates chosen by the Parliament of the Republic and the Assemblies of the Community member-states.(5) Other Powers: (i) The Parliamentary authorisation is necessary for declaration of war. (ii) Martial law beyond twelve days can be extended by the Governmentonly after the Parliament has authorised the extension. (iii) Peace treaties, commercial treaties and treaties or agreements relating to the internationalorganisation, or implying a financial commitment on the part of the State, or modifying provisions of a legislative nature, or relating to the status ofpersons, or entailing a cession, exchange or adjunction of territory, may be ratified or approved only by act of Parliament Such treaties will take effectonly after having been ratified or approved, (iv) The Parliament can indict the President for acts of high treason. It is also the forum for the indictmentof ministers in the case of a conspiracy against the security of the State, (v) It has the right to create army territorial entities other than communes,departments and overseas territories (In March 1982 it40created regions as territorial entities) (vi) It approves the special agreements concluded between the Republic and the States of the Community. Such agreementsare approved by the legislative assembly of the concerned State also. (vii) Any bill for amendment of the Constitution, Government or private member'smust be passed by the Parliament (viii) It can set up commissions of inquiry for investigation purposes.Restrictions on Parliamentary SovereigntyThe 1958 Constitution of France has made a distinction between legislative sphere of the Parliament and regulatory sphere of the Government. Article 34mentions the sphere within which the Parliament can legislate. The matters included within this sphere have been already described above under the head'Legislative Powers'. Article 37 states that 'matters other than those that fall within the sphere of legislation shall be determined by regulation.' Thisdistinction has given rise to a good deal of argument regarding the respective spheres of executive and legislature. In case of a dispute, the matter isreferred to the Constitutional Council for its decision. However, it may be noted that while the Constitution permits the Government to object to a Billor amendment, on the ground that the subject is not a proper one for legislation, and if the President of the relevant House disagrees, the matter is submittedto the Constitutional Council; there is no Constitutional provision enabling a Parliament to object to a Government decree, on the ground that the matterwas to be dealt with by a law and not by a decree.Secondly, the Government may, in order to carry out its programme, ask Parliament to authorise it, for a limited period, to take by ordinance measures normallywithin the legislative sphere (Article 38). Under this article the Government gets power to legislate within the legislative sphere specified for the Parliamentby the Constitution. Though there can be no objections to the provisions of Article 38 because the power to legislate on matters included in the legislativesphere is delegated to the Government by the Parliament itself and also because under the Third and Fourth Republics also the Government possessed thepower of delegated legislation. However, the vital point is that upto 1958 the rule of Parliamentary sovereignty was maintained in principle and delegatedlegislation was exceptional, the parliament itself being the final judge of the extent and duration of special powers accorded to the Governments to legislateby decree; under the 1958 Constitution the legislative sphere for the Parliament has been41constitutionally limited leaving all matters outside this sphere for legislation by decree. This is something quite new in the French constitutional history.The Constitutional Council limits Parliamentary sovereignty in three other ways. Firstly, its supervision of the regularity of elections and referenda andits right to decide cases of alleged irregularity withdraw from Parliament one of its traditional rights. (Articles 59,60). Secondly, the right of theConstitutional Council to ensure the conformity with the Constitution of Parliamentary Standing Orders removes from Parliament's traditional right to controlits own procedure (Article 61). Thirdly, the responsibility of the Constitutional Council for deciding certain specific disputes arising between Governmentand Parliament, with a view to ensuring that each keeps itself within constitutional limits, can withdraw from Parliament rights that it feels that itpossesses. Its decisions during the first year of the Fifth Republic, were, in fact, always restrictive of what Parliament held to be its rights. The decisionsof the Constitutional Council, it may also be noted, are not subject to any appeal and are binding on all the governmental and administrative authorities.The above restrictions on parliamentary sovereignty have been placed in the light of the experience of the Fourth Republic. France has a multiple partysystem and no party gets absolute majority in the Assembly. "Throughout most of the life of the Fourth Republic, the Governments had to fight inch by inchin order to survive, and more often than not, the price of survival was inaction." The main emphasis of the 1958 Constitution was on stability and in orderto ensure stability in the political system it cut down the powers of the Assembly and reversed the tendency to government d' assemblee which has beenresponsible, more than any other single factor, for the weakness of French Governments. Secondly, in an age of expanding state activity, some degree ofdelegated legislation is essential. The Parliament cannot meet the whole year and due to the paucity of time at its disposal it cannot efficiently deliberateand legislate on all the matters that concern the nation. The domain of the Assembly prior to the Fifth Republic was unlimited. It could use all the publicpowers at its discretion. The government was dependent on its arbitrariness. It was generally admitted by the critics of the post-war Parliamentary systemthat the Parliament legislated too much. According to Andre Phillip, the Assembly passed about 300-500 Bills a year, for the most part dealing with mattersmore suitable to a Conseil General, while no serious42discussion took place on the plan for the country's general economic policy. A Radical Deputy wrote in 1956 that the Assembly was sovereign, chaotic andtyrannical, and by making everything its business failed to do anything properly.From the above analysis it is clear that the French Parliament is no longer omni competent. The matters on which it can legislate have been limited andthe time at its disposal has been curtailed from seven months in a year to some five and a half months. Even the powers of the opposition and an individualdeputy have been subjected to crippling restrictions. The opposition have no guaranteed time at their disposal. All time is that of the government's. Thegovernment can refuse debate or vote on its policy statements. The censure motion is difficult to pass since it requires an absolute majority of the entiremembership of the Assembly. In short, the 1958 Constitution while ensuring Cabinet's stability and continuity has robbed the Parliament of its "role asa forum of grievances, as a check on administrative abuses, as a defender of civil liberties and not least as the place where the reputation of governmentand opposition is made or unmade."2 As such it stands no comparison to the British Parliament.Legislative ProcedureThe 1958 Constitution has made fundamental changes in the legislative and budgetary procedure as it obtained earlier. The right to introduce the bills belongsto both the Government and the private members of the House. All bills except the money bills can be introduced in either House. The Government bills arefirst considered in the meeting of the Council of Ministers and thereafter these are sent to either House of the Parliament. A private member bill maynot be introduced if the Government declares its inadmissibility for its being outside the domain of law or contrary to a delegation of authority grantedby virtue of Article 38. If there is, however, a disagreement between the Government and the President of the Assembly on this issue of inadmissibility,the matter is referred to the Constitutional Council, at the request of either party, which shall give its opinion within eight days. The opinion of theConstitutional Council is binding on both the parties.When the bill gets introduced in the House, it is referred to one of the standing committees, which number six. The Bill can also be referred to a specialcommittee at the request of the Government or of the Assembly considering it. The membership of a special committee does not exceed 30. The Standing Committees,the number of which is43limited to six in each Assembly, are (i) Committee on Cultural, Family and Social Affairs; (ii) Foreign Affairs Committee; (iii) Committee on National Defenceand Armed Forces; (iv) Committee on Finance, Economic Affairs and Planning; (v) Committee on Constitutions, law-making and General Administration; (vi)Committee on Trade and Economic Production. The membership of the Standing Committees varies between 60 and 120. The first and the last committees consistof 120 members each, the third and the fifth committees consist of 90 members each, whereas each of the second and fourth committees consists of 60 members.The members of the Standing Committees are elected by the parliamentary groups in proportion to their strength in the respective Assemblies. Thus a groupwhich has twenty per cent members of the total membership in the House, will elect twenty per cent members of the Standing Committee, and like-wise theother groups will elect Thus the character of a Standing Committee is similar to the party composition in the House. It is a sort of mini-Assembly. EachCommittee elects its President, three or four Vice-Presidents and two to four Secretaries.An important point to be noted in the committee system is the reduction in the number of committees. Under the Fourth Republic there were 19 Committees,each having 44 members. Under the present Constitution, the number has been reduced from 19 to 6 but the membership has been increased from 44 to as manyas 120. According to Pickles, "the purpose of the reduction is two-fold: to reduce the authority of Commissions, whose Presidents, when the field of activityof Commissions roughly coincided with that of a Ministry, tended to become shadow Ministers; and also to prevent the time-wasting process of submittingto several Commissions Bills whose scope is such as to interest more than one Ministry, the main Commission remaining responsible for the report, the othersmerely stating their opinion."3 According to Laponce, J.A., "The reason for restricting the number of Standing Committees was a desire to reduce theirimportance in the law-making process... Another reason was to avoid too great a specialisation and prevent committees from acting as representatives forprivate interests, and thus forming pressure groups within Parliament."* In the words of Williams and Harrison, "The revolution in the committee systemis the most important change in Parliamentary organisation. The old Assembly had a remarkable system of nineteen specialist committees, some had so littleto do that they turned to multiplying insignificant bills to justify their existence. 44Others were bridgeheads of important interested groups which could easily block measures which displeased them."5The Committee examines the bill referred to it in detail. The meetings of the committee are held in camera, but a minister can participate in the meetingof any committee. The Committee can summon any person to know his views. After deliberation and consideration, the Committee prepares its report and submitsit to the Assembly.After the report of the Committee has been submitted to the Assembly in which the Bill originated, the Minister pilots his Bill. The Assembly first debatesthe general principles of the Bill, as presented by the Government and the Commission's spokesman and thereafter discusses the Bill article by article.The members may propose amendments. The Government may object to the proposal of amendments on the ground that such amendments were not previously submittedto the relevant committee. The Government can also propose its own amendments or counter-amendments. During the debate over the Bill, the Ministers andthe Presidents of the Committees may intervene at any moment. Deputies may rise on a point of order. Ministers may be present in either House and participatein debates. The debate may be open or 'organised'. In the first, case, would-be speakers notify the President, who chooses the order in which they arecalled. In the second case, the total time allotted to the debate and the share allotted to each Parliamentary group (which is proportional to its strengthin the House) is rigidly worked out in advance. Deputies are not allowed to read their speeches. After the debate over an Article is over, it is put tovote. When all the Articles have been passed one by one, there is final voting on the text as a whole, as amended. And this completes what is called thefirst reading. The Bill then goes to the other House where it goes through a similar process. If passed by both the Houses in identical terms, it is transmittedto the President who shall promulgate it within fifteen days following its transmission to him. He may, however, before the expiry of this time limit,ask Parliament to reconsider it or certain of its articles. This reconsideration may not be refused.In case of disagreement between the two Houses, Article 45 provides as follows:"If, owing to disagreement between the two Assemblies, it has proved impossible to adopt a government or private member's bill after two readings by eachAssembly or, if the Government has declared the45matter urgent, after a single reading by each of them, the Prime Minister shall have the right to call for a meeting of a joint committee composed of anequal number of members of each Assembly, to propose a text on the matters still under discussion.The text drafted by the joint committee may be submitted by the Government to the two Assemblies for approval. No amendment, will be admissible except byagreement with the Government."If the joint committee fails to agree on a common text, or if this text is not adopted under the conditions set forth in the preceding paragraph, the Governmentmay, after a further reading by the National Assembly and Senate, ask the National Assembly to make a final decision. In this event, the National Assemblymay return either to the text drafted by the joint committee, or to the text passed by itself, modified, if possible, by one or more of the amendmentsadopted by the Senate."It is clear from the procedure outlined in Article 45 to resolve deadlocks between the two Houses that where the Government is interested in a Bill, itcan get the National Assembly override the Senate. In order to override the Senate the National Assembly requires only an ordinary majority vote on theBill. This makes the Senate a secondary House in matters of law-anic Laws: The 1958 Constitution has provided for special kind of law called 'Organic Laws'. An organic law is one of two things, it is either one ofthe 19 which the Constitution provided for in order to complete a number of its provisions, and which were promulgated as ordinances during the transitionalperiod when the Government had full powers; or else it is that provided for under Article 34 'to develop in detail and amplify' the legislative powersof Parliament. The procedure for passage of an organic law is described under Article 46 which reads as follows:"A government or private member's bill shall be submitted for discussion and to a vote in the first Assembly in which it has been tabled not less than fifteendays after that tabling."The procedure of Article 45 shall be applicable. Nevertheless, in the absence of agreement between the two Assemblies, a bill may be adopted by the NationalAssembly on final reading only by an absolute majority of its members. "Organic acts relating to the Senate must be passed in the same wording by the two Assemblies.46"Organic acts may be promulgated only after the Constitutional Council has declared them constitutional."Thus there are three vital differences between the passage of an ordinary law and organic law. Firstly, an organic law must be tabled a full fortnight beforeit is debated; secondly in case of disagreement between the two Houses, the National Assembly can override the Senate only by voting the organic Bill bya majority of its total membership (In the case of ordinary Bill only the simple majority is required); thirdly, organic law can be promulgated only whenthe Constitutional Council has declared that it is in conformity with the Constitution. Organic laws are constitutional laws which fill in the gaps ofthe Constitution by way of supplementing or classifying it. Some of these laws are the ones dealing with the term of the President and his eligibilityfor being re-elected, the composition of the electoral college, method of election for the National Assembly and Senate, the status of members of judiciary,composition of the High Council of Judges, and the High Court, its operating rules and procedure, composition of the Economic and Social Council and itsrules of procedure, organisation and procedure of the Executive Council of the Community.Budget: A budget consists of two parts : revenue and expenditure, and is prepared by the Finance Minister. After it is prepared by the Finance Ministerand discussed in the Council of Ministers it is placed before the National Assembly. The Finance Bill is then referred to the Standing Committee on Financewhich deliberates over its provisions. The Assembly takes up its discussion fifteen days after its presentation to it. Thus the members get a fortnightto study the Budget. The Assembly gets forty days within which the first reading of the Finance Bill must be finished. In case the Assembly fails to reacha decision within this stipulated time, the Government sends the Bill to the Senate to be read within fifteen days. In case of disagreement between thetwo Houses the procedure set forth in Article 45 applies. In case Parliament fails to reach a decision within seventy days, the Government may apply itsprovisions by ordinance. If the Government fails to introduce the Finance Bill in time for it to be promulgated by the beginning of the fiscal year, itmay ask Parliament for authority to collect taxes and make available the funds needed to provide for services already approved.In the Budgetary procedure the Standing Committee on Finance plays a very important role. As a matter of fact, it is the strongest of all the committeessince it approves the budget for every Ministry and provides for appropriation of money. It can call any Minister to justify47the estimates for his Ministry and may propose any reduction therein. The discussion over the Budget in the Assembly is taken Ministry-wise. The membersmay not propose any amendment which would reduce receipts or increase expenditure. The President of the Finance Committee is a powerful person who, whenopportunity comes, becomes the Finance Minister or even the Prime Minister.It may be noted that the procedure in case of disagreement on the finance Bill between the two Houses is the same as that governing disagreements on ordinaryBills. Hence there is nothing in French Parliamentary procedure comparable to the British system, which permits the House of Commons to override the Houseof Lords in the matter of Money Bills more easily than in the matter of ordinary legislation.Relations between the two HousesFrom a study of the powers of the National Assembly and the Senate it becomes clear that the Senate enjoys a subordinate position. The Constitution doesgrant equal powers to the Senate in respect of both the ordinary and Finance Bills and does not permit the Assembly to override it; but if the Governmentso likes it may in case disagreement persists between the Houses, ask the National Assembly to make a final decision either on the Bill as returned bythe Joint Committee, or on its own Bill, with or without any amendments proposed by the Senate. In regard to Finance Bill the Senate is given only fifteendays to reach a decision whereas the Assembly is given forty days. The procedure in case of disagreement is the same as for ordinary bill. The Senatorsdo not enjoy the right to convene the extraordinary session of Parliament which is possessed by the members of the National Assembly. The Government isnot responsible to it. The motion of censure can be adopted by the National Assembly only. The Prime Minister may, however, ask the Senate to approve ageneral policy statement, but if the Senate does not approve of it, the Government is not constitutionally obliged to resign.It may, however, be noted that the Senate enjoys greater powers than were possessed by the Council of the Republic under the 1946 Constitution. Its prestigehas been enhanced in several ways. The President of the Senate replaces the President of the Republic, if incapacitated, until the election of a new President;the President of the Republic is under obligation to consult the President of the Senate before applying Article 16, and before deciding on the desirabilityof a dissolution; the President of the Senate has the right to submit Bills in48certain circumstances to the Constitutional Council and (like the President of the Assembly) to nominate three members of the Constitutional Council theSenate has the right to equal representation with the Assembly in the High Court of Justice; the Assembly has to get the concurrence of the Senate beforerequesting a referendum; and the Senate has the right to receive Presidential messages.But despite the increase in its powers and prestige, the Senate of the Fifth Republic does not enjoy the power of its Third Republican namesake. In thewords of Dorothy Pickles, "Except for contingent legislative equality, and its effective right of veto over any change in its own status, the Senate remainsa subordinate legislative chamber."Relation between Government and ParliamentUnder the heading 'Executive Powers' of the Parliament above a brief reference has been made of the relations between Parliament and Government. The 1958Constitution as explained in Chapter Two has reversed the tendency towards 'government by assembly' characteristic of the Fourth Republic and has exaltedthe executive. The focus of interest under the Fifth Republic has been the President and the Government. The powers of Parliament, as described above,have been substantially limited, and the Government has been strengthened. In order to ensure stable governments constitutional provisions were insertedto make it more difficult for Governments to be defeated and prevent them from being harassed and subject to constant pressure by the Assembly; and theGovernment was given, in addition, weapons intended to enable it either to ignore Parliamentary pressure, or else to make its consequences unpleasant forDeputies.Control of the Parliament over the Government: Constitutionally speaking the Government is responsible to National Assembly, the lower House of the FrenchParliament This is in consonance with the principles of parliamentary Governments. The Assembly can oust the Government in two ways. First, the Assemblycan defeat the Government either on its programme or on a declaration of general policy. The first para of Article 49 reads: 'The Prime Minister, afterdeliberation by the Council of Ministers, may commit the Government's responsibility before the National Assembly with regard to its programme or, shouldthe occasion arise, to statement of general policy." If the programme or policy is rejected by the Assembly by a majority of those voting, the Governmentresigns.Second, the Assembly can pass a vote of censure against the Government. Such a motion should be signed by at least one tenth of the49members of the National Assembly. The votes on such a motion will not take place until forty-eight hours after the motion has been admitted; and only thevotes of those in favour of the motion shall be counted, which will be deemed to have been passed only if it receives the votes of a majority of the effectivemembership of the Assembly.It may be noted that mere rejection of a Government Bill by the Assembly does not amount to non-confidence unless the Government makes it a matter of confidenceand a motion of censure is tabled within twenty-four hours and is passed under the conditions laid down in the previous paragraph.The rules provided in Article 49 to defeat the Government are rigid because the Governments can be defeated only on a limited number of occasions and bya special procedure. The motion of censure requires the votes of a majority of the total membership of the Assembly. This is not simple majority of thosevoting. If the motion is defeated, the signatories to it cannot sign another motion of censure for, the rest of the session. The occasions are limitedin the sense that the Government can be defeated only if it commits its responsibility for its programme, policy or Bill. However, it may be said thatan Assembly which has decided to get rid of a Government, can do so.The Parliament exercises control over the Government in three other ways. Firstly, during debates over the Government Bills, policy and programme, the membersof the Parliament can place their viewpoints and criticise the Government for its failures and omissions. Secondly, when the Bill is before a StandingCommittee for examination, the members of the Committee can summon both Civil Servants and Ministers before them to provide explanations and justificationsof Bills being discussed in the Committee. All members of recognised Parliamentary groups are members of a Committee (though not of more than one). TheStanding Committees, as pointed out earlier, are powerful bodies; particularly the Finance Committee is very powerful. Besides, the Parliament can appointspecial Committees to which Bills may be sent instead of to one of the Standing Committees. There are also Supervisory Commissions which supervise themanagement and finances of nationalised industries and public services. The Parliament can also appoint commissions of Inquiry. Thirdly, the Parliamentcan exercise control over the Government through the method of questions. The members of Parliament can put both oral and written questions to the relevantMinister. Questions on general policy are addressed to the Prime Minister. Written questions50are printed in the official Journal. Ministers are bound to reply within a month. They may, however, refuse to reply a question on the ground that it isnot in public interest to do so. Oral questions may be with or without debate. One meeting per week is reserved for member's questions and the Government'sreplies. Questions without debate are called by the President and the questioner is allowed to speak for five minutes following the Minister's reply. TheMinister may reply to this. No other speeches are allowed. Questions with debate are put by the questioner in a speech which may last upto half an hour.After the Minister's reply, the President may allow other members to speak for a period not exceeding fifteen minutes each. The Minister may give a finalreply, if he so desires.Control of Government over Parliament. As has been emphasised again and again in the earlier and present Chapters, the main purpose of the 1958 Constitutionwas to make the Government strong and stable and with a view to that it put several limitations on the powers of the Parliament and strengthened the Governmentin numerous ways. In the field of ordinary law-making the Government has constitutional authority to dominate in the Assembly. Its Bills get priority inthe Parliamentary Time Table. It has the right to open the general debate on a Bill in either House (The system of rapporteur has been abolished). TheDeputies now hear the case for the Bill before they hear the criticisms contained in the report of the appropriate committees. Thus now debate is heldon the basis of Government's Bill, instead of on the Bill as amended in Committee. Government can also now restrict the rights formerly possessed by Deputies.It can object to amendments from the floor, if these were not submitted to the Committee. It can ask the House to decide by a single vote on the wholeBill, or part of it, taking into consideration only its own amendments, or amendments approved by it. If there is disagreement between the two Houses Governmentcan help to see that its own views prevail. If it is in favour of a Bill it can enable the Assembly to vote it, in spite of Senate's opposition; if itis opposed to, it can, in effect, back the Senate against the Assembly, by refusing to intervene, thus ensuring that the Bill is dropped.Similarly over finance, it has supreme control. The Parliament gets limited time to consider and pass the Financial Bill. If the Bill is not passed withinthe prescribed time limits, the Government is authorised to introduce its provisions by decree. The Deputies cannot propose any amendment which would reducereceipts or increase expenditure. The51Parliament has, of course, the right to reject the Budget altogether and this right it can use to compel the Government to grant certain concessions, though,if the Government decides to make the issue a matter of confidence, the Assembly may hesitate to turn the Government out, particularly if the consequencemeans a dissolution. It may be mentioned that the Parliament has not yet exercised its right to reject the budget, though it has occasionally succeededin exercising pressure upon the Government to agree to certain concessions.The three other methods through which the Government can exercise control over the Parliament are the rule of incompatibility, the power of dissolutionand referendum. Under Article 23, membership of the Government is incompatible with the exercise of any Parliamentary mandate. The purpose of includingthis rule was to increase Governmental stability. It was believed that the Deputies might hesitate to turn Governments out in the hope of obtaining office,if the price was to be giving up their seat in the Assembly. The power of dissolution in the hands of Government exercises a restraining influence upona too radical Assembly, since dissolution means fresh elections in which Deputies run the risk of losing their seats. A threat of dissolution may bringround recalcitrant members. The use of referendum, under the Fifth Republic is limited to three types of measure - those concerning the organisation ofthe public authorities, approving an agreement with the Community, or authorising ratification of a Treaty which would affect the functioning of institutions.The request for referendum is made by the Prime Minister and the President decides on it. The use of referendum naturally restricts the field of Parliamentarypowers and increases the authority of Government.In regard to the relationship between Parliament and Government, it may then be concluded that under the 1958 Constitution the Government has grown stronger.In the words of Stewart, M., "Parliamentary sessions are now brief, its powers overshadowed by regulations and ordinances. Not only do the private memberslose their powers to make financial proposals, Parliament as a whole finds that the Budget can be passed over its head. All this is to prevent irresponsibleand secret intrigue against the Government, such as occurred under the Third and Fourth Republics. It may well be that Parliamentary government has beennot so much reformed as extinguished."52References1. Macridis Roy C. and Ward Robert C, Modern Political Systems of Europe, p. 263.2. Finer, S.E., Comparative Government, p. 318.3. Pickles Dorothy, op. cit., p. 96.4. Laponce, J.A., "The Government of The Fifth Republic", p. 234.5. Williams & Harrison, De Gaulle's Republic, pp. 146-47.535 THE FRENCH JUDICIARY"It is not the habit of Frenchmen to look upon the judiciary as a separate branch of Government, distinct from the legislative and executive branches. Theyare inclined to regard the courts as mere administrative agencies, something like the post offices or the prefectures."—W.B. MunroMain FeaturesThe French legal and judicial system bears the imprint of Roman law and is very much different from the British and American systems. The main featuresof the judicial system in France may be briefly described as follows:(i) Codified Law: The French codes are well balanced pieces of jurisprudential art, absolutely systematic and easily accessible. The first Penal Code andCriminal Procedure Code were prepared before the eighteenth century ended whereas the Civil Code and Civil Procedure Code were formulated during the reignof Napoleon in the early nineteenth century. Both kinds of Codes and Procedures are reasonably complete and clear. A judge need not seek help from precedents.He is free to give his judgement Precedent plays an insignificant part in the French judicial system whereas it has much importance in England and USA.The three important features of Roman judicial system -symmetry, unity and authority - are found in the whole edifice of French law and justice.(ii) No elected judges: The judges in France are not popularly elected as they are in so many courts in USA. Under the Third Republic Judges were appointedby the Minister of Justice who was sometimes influenced by bias and extraneous considerations. Under the Fourth Republic, the power of appointment wastransferred to the Superior54Council of Magistrature which consisted of the President of the Republic as Chairman, the Minister of Justice, six persons elected by the National Assemblybut not from among its members, four Judges and alternates representing all categories of judiciary and elected by their colleagues, and two members ofthe legal profession appointed by the President of the Republic. Under the present Constitution a similar body under the same Conseil Superieur de la Magistrature(High Council of Judges) has been appointed to make proposals for appointment of Judges of the Court of Cassation and Presiding Judges of the Courts ofAppeal and to give its opinion on the proposals of the Minister of Justice relative to appointments of other judges. The High Council of Judges consistsof the President of the Republic, Minister of Justice and, in addition, nine members appointed by the President of the Republic. The High Council of Judgesalso acts as the disciplinary council for judges.(iii) Dual Hierarchy: Unlike England, there are two separate sets of courts in France. There are ordinary courts dealing with common law for the trial ofcivil and criminal offences. At the top of ordinary courts is the Court of Cassation. But unlike the Supreme Court of India or United States, it does notpronounce guilt or innocence. A reversal of a lower court decision, i.e., a successful appeal merely means that the case is sent back for retrial by anothercourt of similar jurisdiction. Besides the ordinary courts, there are Administrative Courts which are concerned with the acts of the administrative authoritiesand the grievances that the citizens may have against these authorities. At the top of administrative courts is the Conseil d' Etat, the Council of State,which hears appeals from the regional administrative tribunals.(iv) Court of Conflict: With two sets of courts, ordinary and administrative, it becomes necessary to have some agency for settling disputes arising outof the final jurisdiction of the Court of Cassation and the Council of State. For this purpose a Court of Conflicts was set up in 1872. This court is composedof the Minister of Justice as ex-officio President, three Judges of the Court of Cassation, three members of the Council of State, and two other persons,selected by the foregoing. This institution, it may be remarked, is special to France only.(v) Absence of Judicial Review: Courts in France have no power to declare laws passed by the Parliament as unconstitutional. In France Courts derive theirpowers from the Parliament whereas in USA they derive their powers from the Constitution itself. The French citizen has55no rights to approach a court to declare a law as unconstitutional. However, the constitutionality of a law can be got determined, before its promulgation,from the Constitutional Council by the President of the Republic, the Prime Minister or the President of either Chamber of the Parliament. It is only thoseofficials who can invoke the issue of Constitutionality of Acts passed by the Parliament. Once a law has been promulgated, its, constitutionality cannotbe questioned. "It is not the habit of Frenchmen," writers Munro, "to look upon the judiciary as a separate branch of Government distinct from the legislativeand executive branches. They are inclined to regard the courts as mere administrative agencies, something like the post offices or the prefectures."1(vi) The Institution of Parquet: This institution known by the name of Parquet is a very unique feature of the French judicial system. To each court thereis attached a Parquet headed by a procureur or state attorney and a number of assistants to help him. The Parquet does the same job as is done by publicprosecutors in India. It conducts prosecutions. According to Herman Finer, "It embodies the dual interest of securing a conviction, yet also ensuring justiceor fair play for the criminal."2 The members of the parquet are all irremovable and they move upwards in their cadre. Though their main function is onthe criminal side, yet they also act in civil cases which are of interest to the state, by submitting the point of view of the state on the law, and ofthe public authorities and of people who are not capable of prosecuting their own case. They also see that the judgments and decrees of the courts arefully executed.(vii) Independence of Judiciary: The independence of judiciary is well recognised in France. The President has been made the guarantor of the independenceof judiciary. Judges may not be removed from office. The Judges of the superior courts, i.e., Court of Cassation and the Courts of Appeals are appointedon the proposals made by the High Council of Judges which consists of the President of the Republic, the Minister of Justice and nine other members. Thusthe appointment of the superior judges is outside the purview of the executive. The judges at the lower level are appointed through a competitive examination.These fresh appointees spend four years in the National Centre of Judicial Studies to get further training in the. legal and judicial system, thereby ensuringa judiciary of competence and high calibre. In France, the Bench is a career. The judges arc free to deliver their judgements uninfluenced by any kindof pressure. Though they are paid about one-third 56as much as English judges, yet they are free from corruption. Justice is cheap in France.(viii) Habeas Corpus: Under the Fourth Republic arbitrary arrest was possible in France. Warrants of arrest could be issued by judges d' instruction andthese warrants were sometimes very vague. The judges could keep the person in preventive detention until he had finished his interrogation and collectedthe evidence. There was no way to get the prisoner freed from the prison. Then many officials including the police, mayors and prefects had the authorityto effect arrests. Under the Fifth Republic, the Constitution declares that no one may be arbitrarily arrested and that the judiciary acting as guardianof individual liberty, shall ensure that the individual's freedom is protected in accordance with law. This provision (Article 66) has been made for thefirst time and marks a unique and important departure from the earlier constitutionsOrganisation of JudiciaryAs described above there are two types of Courts in France, ordinary and administrative. At the bottom of the ordinary courts are Justices of Peace. Theyare appointed by the President of the Republic on the proposal of the Minister of Justice. They have a limited and summary jurisdiction over minor offencesand civil disputes. In some cases their decisions are final whereas in others appeals can be made to the Court of First Instance.(a) Courts of First Instance: Civil courts of first instance are found in almost all Arrondisements (County). Each court has three judges who are recruitedthrough competitive examination. They have jurisdiction over all civil cases except those given in the laws as belonging to other courts. They also hearappeals from the Courts of the Justices of Peace and the Industrial Courts. Their criminal jurisdiction extends to cases of misdemeanor including theftand embezzlement but not serious crimes such as homicide.(b) Courts of Appeal: These courts hear appeals in both civil and criminal matters against the decisions of the courts of first instance. These courts areestablished in selected regions. Appeals in civil matters lie when the sum involved exceeds 200 Francs. These courts operate in two or more divisions:each has at least five judges in its civil, criminal and Indictment Division. The Indictment Division decides whether the accused is to be tried or not.(c) Courts of Assize: The serious criminal cases are tried by Courts of Assize, on appeal or in first instance. This court holds its session in57each department every three months. It has three judges. The Presiding Judge comes from the Court of Appeal affiliated with that department. The other twojudges come from the Court of First Instance. Decisions of these courts are final.(d) Court of Cassation: At the top of judicial hierarchy is the Court of Cassation, which is the highest and final Court of Appeal in France. It hears bothcivil and criminal appeals. But it does not retry the case. It simply determines whether the procedure followed by the lower court was regular or not andwhether the judge had interpreted the law correctly. There is only one Court of Cassation. It acts in three Chambers, Criminal Chamber, the Civil Chamberand the Chamber of Requests. Each Chamber has a President and fifteen judges. Criminal appeals go directly to the Criminal Chamber, but civil appeals canpass through the Chamber of Requests, which forwards only those appeals that it believes contain substantial grounds for reversal. Unlike the Americanor Indian Supreme Courts, the Court of Cassation does not pronounce guilt or innocence. A reversal of lower court decision, i.e., a successful appeal merelymeans that the case is sent back for retrial by another court of the same standing. According to Herman Finer, "It is called Cassation because it may breakthe law of the lower court, not the judgement. It is France's most distinguished court."3 Its judges are appointed on the proposals of the High Councilof Judges (conseil Superieur de la Magistrature).(e) Special Courts: In addition to the above ordinary courts there are in France a number of special courts as well. Industrial Courts decide labour-employerdisputes. Expropriation courts decide compensation claims of persons if their property is taken by the State for some public purpose. The Commercial Courtstry commercial disputes. These courts are mainly Courts of Arbitration and Conciliation. Their judges do not belong to the cadre of magistrature. On accountof existence of these Courts the ordinary courts are not overburdened with such cases which concern professional disputes.Administrative CourtsAdministrative courts have been constituted to administer what is called 'Administrative Law' which has existed in France since very long. According toC.F. Strong, administrative law is "the body of rules which regulate the relations of the administrative authority towards private citizens and determinesthe position of state officials, the rights and liabilities of private citizens in their dealings with these officials as representatives of the stateand the procedure by which these rights58and liabilities are enforced."4 The system of administrative law displays the following features:(a) It relieves the public officials of the jurisdiction of ordinary courts; (b) a special tribunal is set up to try officials when the latter are suedby private individuals for their wrongful acts; (c) it deals with rules relating to the validity of administrative decrees; (d) it distinguishes officialacts from personal acts; (e) it awards compensation to individuals for injuries sustained by them at the hands of arbitrary state authorities; (f) it regulatesthe relations of administrative authorities towards private citizens; (g) it determines the competence of administrative authorities; (h) it lays downthe method of granting redress to sufferers; (i) it determines the position of the state, the officials, and the rights as well as the liabilities of privatecitizens; (j) it also prescribes the procedure for the enforcement of these rights and liabilities.There are two types of administrative courts - the Regional Councils and the Council of State.The Regional Councils are the lowest administrative courts. They are twenty two in number and each covers an area of two to seven departments. Each councilconsists of a President and four or five councillors appointed by the Minister of the Interior. These councils have a limited jurisdiction concerning onlywith the actions or orders of local officials. They are concerned mainly with questions of assessment, public works, local elections, etc.The Council of State is the highest appellate court for Administrative Law in France. It consists of 150 members. Its members are appointed by the Presidentof the Republic on the recommendations of the Council of Ministers. The members are men of great knowledge and ability. It acts in Sections and each Sectionconsists of 39 councillors. It sits in Paris. The most significant responsibility of the Council of State is to hear appeals from the regional administrativetribunals and give attention to certain types of cases in the first instance. Its word is final in administrative court cases. Besides this judicial function,the Council of State performs certain other functions also. It advises the Government on legislation regarding such matters which fall outside the sphereof Parliament Similarly, the Government before issuing ordinances on measures normally within the legislative sphere will consult the Council of State.The Government Bills are discussed in the Council of Ministers after consultation with the Council of State. In a sense, the Council of State keeps oneagle eye on the Government to59casting vote in case of a tie. Article 57 declares that the office of the member of the Constitutional Council shall be incompatible with that of ministeror member of Parliament.The functions of the Constitutional Council are: (i) to ensure the regularity of the election of the President of the Republic;(ii) to examine complaints regarding Presidential election; (iii) to declare the results of the votes for Presidential election; (iv) to rule, in the case of a dispute, on the regularity of election of deputies and senators; (v) to ensure the regularity of referendums and proclaim the results thereof; (vi) to rule on the constitutionality of organic acts, before their promulgation, and standing orders of the parliamentary Assemblies, before their implementation;(vii) to determine the constitutionality of the Acts of Parliament before their promulgation, when such Acts are so submitted by the President of the Republic,the Prime Minister, the President of the National Assembly, the President of the Senate, sixty deputies or sixty senators.Recently, the council proclaimed the famous Maastricht Treaty contrary to the French Constitution in three major fields viz., sovereignty, currency andforeign policy. Hence, before its adoption by the Parliament, constitutional amendment is imperative.5The Constitutional Council must give its ruling within one month. This period may, however, be reduced to one week at the request of the Government, ifthe matter is urgent. It may be noted that the decisions given by the Council are binding. Article 62 clearly lays down that a provision declared unconstitutionalmay not be promulgated or implemented and that the decisions of the Constitutional Council shall not be subject to appeal to any jurisdiction, and thatthey shall be binding on the governmental authorities and on all administrative and jurisdictional authorities.Besides the above functions, under Article 41 in the event of disagreement between the Government and Parliament on a matter whether a private member'sbill or amendment is or is not within the domain of Parliament, or whether or not it conflicts with a delegation of powers made to Government by virtueof Article 38, the Constitutional Council, at the request of either party, gives its ruling within eight days. Further, it also decides under Article 7whether the President is incapable of performing his duties and declares the Presidency vacant if60see that the process of administration goes along properly and also to check its arbitrariness.Other Judicial InstitutionsBesides the above described courts, the 1958 Constitution of France provides for three new judicial institutions which are as follows:(i) Conseil Superieur de la Magistrature: (Supreme Council of Judges). The Constitution declares the President to be the guarantor of the independence ofjudiciary and in this task he is assisted by the Conseil de la Magistrature. It is presided over by the President of the Republic. The Minister of Justiceis its ex-officio Vice-President who may deputise for the President of the Republic. The Council consists, in addition, nine other members appointed bythe President of the Republic. It makes proposals for appointments of judges of the Court of Cassation, and of the Presiding Judges of the Courts of Appeal.It gives its opinion on the proposals of the Minister of Justice relative to the appointments of other judges. It is consulted on questions of pardon.It also acts as the disciplinary council for judges.(ii) High Court of Justice: The High Court of Justice is composed of members elected in equal number by the National Assembly and the Senate from withintheir ranks after each general or partial election to these Assemblies. It elects its President from amongst its members. After indictment by the two Assembliesfor high treason, the President of the Republic is tried by the High Court of Justice. The members of the Government also are tried by the High Court ofJustice in the case of a conspiracy against the security of the State.(iii) The Constitutional Council: As described above, the Constitution of France does not provide for a system of judicial review as it is found in Indiaor USA. However, it does create a body, which, within certain specific and narrowly defined limits, has the function of deciding on the constitutionalityof Governmental or Parliamentary acts. Such a body is the Constitutional Council created under Title VII of the Constitution. It replaces the ConstitutionalCommittee of the 1946 Constitution.The Constitutional Council consists of nine members, whose term of office is nine years, and is not renewable. One-third of the membership is renewed everythree years. Three of its members are appointed by the President of the Republic, three by the President of the National Assembly, and three by the Presidentof the Senate. In addition to these nine members, the President of the Republic is the Chairman and the minister of justice its ex-officio chairman. TheChairman has a61the President cannot carry out his duties. Finally, the Constitutional Council is always consulted by the President of the Republic regarding the existenceof an emergency before he assumes emergency powers and also the measures he proposes to take to deal with it.From a study of the above functions of Constitutional Council it becomes clear that its functions are threefold-electoral, judicial and legislative. Itensures fairness of elections, a function which is performed in India by the Election Commission. It decides disputed elections - a function which is performedby the election tribunals or higher judicial institutions. It decides on the constitutionality of organic laws and parliamentary orders, which is a functionof legislative nature. It may also be noted that while in other countries a law is challenged for its validity after it has been promulgated, in Francethe validity is determined before its promulgation; and the opinion given by the Constitutional Council is final; no appeal lies there from. It is indeeda unique provision of the French Constitution. It may again be emphasised that it is not for an individual or corporation to invoke the issue of constitutionalityof an Act. Only the Authorities mentioned under Article 61 may invoke its jurisdiction.Explaining the importance of Constitutional Council in the French political system, Dorothy Pickles has remarked 'The Council has no general responsibilityfor ensuring respect for the Constitution. It can express its opinion only if consulted on the matters enumerated above and on the initiative of the personsmentioned. It has no power to enforce its decisions. If President, Government and Parliament were to agree to refrain from consulting the Council on amatter where consultation is optional, then there is no means by which the Council could make its view known. The citizens cannot appeal to it nor canany Courts of Law. It is not, therefore, in any sense comparable to the Supreme Court of the United States. Nevertheless, on matters on which it must be,or is, in fact, consulted, the Council can have and has had great influence in determining the interpretation to be placed on a number of provisions ofthe constitution."6 References1. Munro, W.B., "Governments of Europe", p. 521.2. Herman Finer, "Governments of Greater European Powers", p. 512.3. Ibid., p. 513.4. C.F. Strong, "Modern Political Constitutions", p. 269.5. Hindustan Times, dated May 14, 1992.6. Dorothy Pickles, op. cit., p. 36.626 LOCAL GOVERNMENT IN FRANCE"Local assemblies of citizens constitute the strength of free peoples.... A nation may establish a system of free government but without the spirit of municipalinstitutions it cannot have the spirit of liberty."—De TorquevillePrior to March 2, 1982 France did not attach much significance to the system of local self-government. As a matter of fact, it used to be said that whatFrance has, is local government and not local self-government. France is a unitary state and all the powers are centralised in the hands of central government.For administrative convenience the country has been divided into different local units which function as agencies of central administration rather thanas nursery schools of democracy. Pre-revolutionary France had no system of local administration. It was only after the French Revolution that local unitswere given the power to have their elected councils with power to appoint their functionaries. During Napoleon's regime the administration became highlycentralised curtailing thereby the powers of the local councils. After Napoleon, these units regained their lost powers. The successive Republics madesome reforms in the system of local government but primarily the system until the beginning of Fifth Republic remained as it had been during Third andFourth Republics. Lord Bryce has given four reasons for the neglect of local self-government in France. Firstly, the bureaucracy resists schemes of decentralisation. Secondly, the national deputies do not want to lose their patronage by which they keep their hold on their constituents. Thirdly, the rulersare afraid of insurrection from the local representative councils. Fourthly, the people themselves have not asked for a larger measure of local self government.The people in France care much more for being governed well than for governing themselves.163Main Features of Local Government in France (Prior to March 1982)(i) Extreme Centralisation: The most important feature of local government in France is extreme type of centralisation. "Munro remarks, "the Minister ofInterior presses the button and the prefects, the Mayors and the deputy Mayors do the rest". France is not a federation and therefore there is no divisionof powers between the central government and local government. The various organs of local government do not have any inherent powers. Whatever powersthey enjoy are delegated to them by the Central Government. Everything is controlled from the centre. According to Soltan, "There is not a village in France,however remote, in which the government in Paris does not have an agent to whom it can give orders. Elected bodies, municipal and departmental, exist indeed,but their powers are strictly limited."2 The central control is exercised through prefects, sub-prefects and mayors who are nominees of the Central GovernmentThese officials have wide powers and execute the mandates from the Centre. The Central Government can veto any local measure which it does not approve.In the words of Munro, "Centralisation is the essence of this system, centralisation raised to a superlative degree. All authority converges inward andupward. It can be chartered in the form of a perfect pyramid."3 In the words of a French writer, "We have a Republic at the top, the empire at the base."In France there is nothing like local self-government, it is only local administration. It has been correctly remarked that if Paris sneezes the wholeof France catches cold.(ii) Uniformity: According to Zink and Ogg, "A natural consequence of the tight integration of nation and local government is a rigid uniformity of localgovernment arrangements throughout the length and breadth of the country."4 Wherever one may go in France, one finds the same elective council, the samePrefects, and Mayors, the same school system, and police, the same laws and education. Some Departments are densely populated and some are sparsely populated.However, all of them have the same type of administration, the same type of sources and functions. There is not much scope left for experiments in administrationat local level. It may be emphasised that this uniformity is not only with regard to the organisational pattern of local administration but also with regardto their powers and functions. In India and USA, the local self-government units possess wide autonomy in the sphere of their powers, functions and taxation.64(iii) Paternalism: As a result of extreme centralisation, the local units live under the guardianship of the Central Government. Too much is done for thepeople by the Government It is rightly said that all that a person has to do in France is just to be borne and the rest is done by the state for him. Itis the duty of the officers appointed by the state to look after the child. When he grows up, the state has to look after his education. If he is not employed,he has to be fed by the state. If he dies without any guardian, his dead body has to be buried by the state. The Central Government exercises both politicaland financial guardianship. It appoints the officials of the local units and keeps an eye over their decisions. The local budget is approved by the CentralGovernment which also audits their accounts. It need not be said that the policy of paternalism hampers the growth of local initiative and local responsibility.It may again be emphasised that the Prefect and Mayor are the nominees and employees of the Central Government who carry out its orders. The local Councilshave little control over them.(iv) Dual Role: Local institutions in France are not only units of local administration looking after local needs and administering local laws but theyare also smaller units of the bigger unit - the Central Government - to implement its orders, decrees and policies. The Prefect and the Mayor as employeesof Central Government are responsible for enforcing governmental policy and assisting the government officials in carrying out the orders and policiesof the Central Government while as executive heads of local units they are responsible for looking after local needs and administering local laws.On the basis of the above features, it may be concluded that it is misleading to talk of local government in France. As a matter of fact, there is onlyone Government in France which functions through the Ministers and Parliament in Paris and Prefects and Councils throughout the length and breadth of thecountry. As a matter of fact, the French people have never thought of creating local institutions, still less of putting them upon a popular basis andclothing them with powers. Artificial administrative units were created which in course of time came to have elected councils but these councils stillremain advisory bodies. Real authority belongs to the Central Government and its officials.Areas of Local Government in FranceIn France there are four categories of local government - Department, Arrondisement, Canton and Commune. The whole country has first been divided into Departmentswhich are ninety in number. The65Departments have been further sub-divided into Arrondisements. Each Department has three or four Arrondisements. The Arrondisements are divided into Cantonsand the Cantons into Communes. The size and area of each of these four units differ. The average French Department has an area of 2,363 square miles. Ofthese four units, only two units,1 i.e., Department and Commune are of significance; the other two, Arrondisement and Canton are merely administrativeconveniences.The Department: There are ninety Departments in France, of these fifteen contain the chief cities of France. Then there are 19 first class, 22 second classand 34 third class Departments. This classification is according to wealth, population and political importance of a Department.Each Department has a departmental council whose membership varies from department to department since the number of Cantons in each Department is different.Each Canton, irrespective of size, elects one representative to the departmental Council. The largest Council consists of 67 members whereas the smallestone contains 17. All the members of the Council are elected directly on the basis of adult suffrage by secret ballot. All citizens are entitled to voteif their names appear on the national electoral register. A person to be elected must be not less than twenty-three years of age. All councillors are electedfor a six year term, one half of them retiring after every three years. The council elects its own President. It meets in two regular sessions during ayear, first in April-May lasting not more than two weeks and second between August and October lasting not more than a month. However, special sessionscan also be called by the President of the Republic, by the Prefect, at the request of two-thirds members of the Council or by the Departmental Commissionwhich is a kind of standing committee of the Council.The Council acts as the legislative and deliberative organ of the department. It performs five different kinds of functions. Firstly, it votes the annualbudget and audits the accounts maintained by the Prefect. Secondly, it controls the running of departmental services, such as health services, public assistance,public works, drainage, sanitation etc. Thirdly, it is responsible for the maintenance of roads and public buildings. Fourthly, it fixes the maximum ratesof certain types of taxes, and is also responsible for the fixing of electoral boundaries, the classification of roads and the authorisation of sites ofmarkets or fair grounds. Lastly, it gives advice to the Minister of the Interior when called upon to do so and can make recommendations on all matters66concerning local administration. The Council can issue ordinances for the administration of departmental services. It is, however, required to conform tonational policy and standards. The councillors also form an electoral college for election of the Senators.It may be noted that the Council does not have a much representative role to play in the affairs of the Department. It can make laws only on insignificantlocal matters as most of the laws are made by the Central Government. Further, the ordinances, issued by the Council can be vetoed by the Central Government.It cannot go against the national policy. In the words of Carter. 'The Councils discuss rather than act, and on matters of strictly local concern do theirresolutions have the force of laws. Their chief function is to supervise the work of the prefect and their own locally elected executive."5The Prefect: The Prefect is the executive head of the Department and is appointed by the Council of Ministers. He can be transferred from one Departmentto another and can also be removed from service at any time. His office is 'a political', although he does not take part in active politics.The Prefect enjoys a dual role. On the one hand, he is the agent of the Central Government while on the other he is the chief executive of the Department.Thus in his two capacities of being the agent of the Central Government and the chief executive of the Department, he possesses wide powers and has actuallybecome the pivot of French administration. As agent of the Central Government, he is responsible for the general maintenance of law and order in the department.He is authorised to arrest, search and seize without warrant any person or document which he considers inimical to the internal or external security ofthe State. He is to keep the minister informed of the state of opinion in the department. He is to see that laws and government orders are properly appliedand even can issue himself a number of them. He is also responsible for co-ordination between the different state-controlled services which have officersin the Department and is sometimes asked to arbitrate between them. The single authority through whom all central officers in the Department must workis the prefect. They carry out the orders of their respective ministries under his authority, submit for his sanction their own suggestions for action.He is the channel for the collection and transmission of information required by the various Ministries of the Central Government He is in charge of thehighways, bridges, jails, hospitals etc. He has to look to the raising of the army. He is in charge of the census. He has to enforce censorship. He appointsa67large number of officials including school teachers, post-masters, collectors of taxes, sanitary inspectors etc. Professor Munro writes, "Napoleon createdthis official in his own image. In each department, he wanted a general manager who could be relied upon to run the affairs of the Department in everyrespect as the emperor wanted him to run..." The Republican Governments have continued with the same system.As executive head of the Department, the Prefect prepares the agenda for the General Council and prepares the annual budget. He can attend the Council meetingand speak but not vote. He is responsible to carry out the decisions of the Council. He is also to ensure that the Council carries out its activities withinthe legal framework and can bring to the notice of the Government irregularities if any committed by the Council. It may be noted that the Prefect is notresponsible to the Council. He is appointed by the Council of Ministers and as such is responsible to it. If there is any disagreement over an issue betweenhim and the Council, the matter is brought to the notice of the Minister of Interior who decides the matter.The Prefect enjoys some powers over the Communes also. He supervises the administration of the Communes and gives his assent to the Commune budget. He cansuspend the Mayor and a Councillor. He can take over the duties of a Mayor who has failed to perform his duties satisfactorily. He can annul any decisionof the Commune Council and can issue directions to the Mayors regarding policy matters. However, while dealing with the Communes he is guided by the instructionsfrom Paris.The Arrondisement: The Arrondisement is a sub-division of the Department. There are 311 Arrondise ments in the Department. It is purely an administrativeunit with no corporate personality and no elected council. On an average, a Department is divided into three or four Arrondisements. The sub-Prefect isthe head of the Arrondisement. He is appointed by the Prefect and is his agent. He carries out such functions as are delegated to him by the Prefect. Hismain job is to lessen the burden of the Departmental Prefect. He is merely the channel through which Prefect gels information and transmits his orders.The Canton: The Canton comes in between Arrondisement and Commune. It is a collection of Communes which are grouped together for certain administrativepurposes. It does not have any elected council. On an average, each Department has about 35 Cantons. There are about 3028 Cantons. A Canton is a kind ofelection district for Departmental Council.68The Commune: The Commune is the lowest unit of local administration and is the only area of local government which can be traced to a period before theFrench Revolution. The Department, Arrondisement and Canton are the post-revolutionary creations. There are more than 38,000 Communes situated in cities,towns and villages. Some Communes are vast in area and population while others are small. Paris also has a Commune.Each Commune has a Council consisting of 11 to 37 members according to the size of its population. The smallest has 11 members and those over 60,000 populationhave 37 members. The members of the council are elected by the voters of the Commune. Any adult French citizen possessing property or residential qualificationsin the Commune is entitled to vote. For membership the age is 23 years. All the members are elected in April or May for six years. The Council meets fourtimes a year in February, May, August and September. Its special sessions can be called by either the Mayor, the Prefect, the sub-Prefect or at the requestof one-third of the Councillors. The Council elects its chairman called Mayor and a number of Deputy Mayors from 1 to 12 according to the size of the Commune.The functions of the Commune Council have been described by Dorothy Pickles as follows:"The Commune is responsible for the upkeep of municipal roads and property, for decisions regarding the carrying out of public works, the wages of municipalemployees, the organisation of municipal services, such as fire service, burials, slaughter-houses, public baths etc. It votes the annual budget, whichis drawn up by the Mayor and it makes recommendations regarding the functioning of local services. Political recommendations are prohibited."6 But in actualpractice, the authority of the Council is very much limited. In matters of finance, price and education, the council does not possess full freedom. Insuch matters as sale or purchase of property no decision can be effective unless it has the approval of the Prefect or sub-Prefect. Its ordinances canbe annulled by the Prefect or sub-Prefect. The Council can also be dissolved under certain conditions.The Mayor of the Commune performs functions analogous to those of the Prefect. He is both the agent of the Central Government and the executive head ofthe Commune. As agent of the Government he has to do what he is directed to do by the Prefect or sub-Prefect. He is to apply the governmental decrees,and Parliamentary Acts. It looks after the maintenance of law and order. He keeps the register of births, deaths,69marriages, land and electoral registers. As the executive head of the Commune the Mayor puts into effect the decisions of the Council and for that he isresponsible to the Council itself. He is also personally responsible for ensuring public safety, morality and hygiene of the Commune. He places the viewsof the Commune before the court and administration. He is to maintain efficiency of work by the Commune employees and enforce discipline among them. Heprepares the budget of the Commune and is responsible for the collection of local taxes and revenue. He also presides over the meetings of the CommuneCouncil.French Local Government after March 2,1982"Centralisation is the essence of this system, centralisation raised to a superlative degree". These observations made by Munro regarding local Governmentin France applied to the period before March 2,1982. The 1982 Act lays down the general political framework of decentralisation process. At present, theMetropolitan France comprises 96 Departments grouped for administrative purposes into 22 regions Departments are further divided into 324 arrondisements(districts) about 3,500 Cantons and 36,000 communes. With minor variations local units at each level an governed alike irrespective of size and importance.In March 1982, local agencies were reorganised in a manner that enhanced local autonomy a great deal and curtailed considerably the control of the Centralgovernment over local bodies.A brief history of decentralisationAs already said, steps towards decentralisation were being taken since 1961. In 1961, Departments were grouped into 21 regions to facilitate local economicplanning and development The regions corresponded to provinces of France. Paris and its surrounding Departments were constituted as region in 1976. Eachregion before 1982 was administered by a regional prefect appointed by the National Government and assisted by an advisory regional council. Likewise eachDepartment was administered by a prefect—a nominee of Central Government duly assisted by a general council having limited powers. He played a key roleas an agent of the Central Government in decision making. The Prefect had great control over the affairs of communes before 1982. The decentralisationprocess was initiated with the passage of Act of March 1982. Forty seven Acts of Parliament and 269 implementing orders were passed subsequently up toFebruary 5,1986.7 At the first stage of decentralisation process the institutional reforms redistributing powers between the state departments, communesand regions were effected. The Act of March 2, 198270constitutes a conspicuous milestone towards decentralisation policy. Four essential measures were introduced which changed the very face of local governmentin France. They were as follows:Measures adopted by Act of 1982(i) State powers of administrative supervision have been abolished and checks of legality introduced.8(ii) Central financial supervision has been abolished and regional audit chambers established.9 The regional audit chambers have been brought into existencesince January, 1983 and the new budgetary and accounting procedures have been made operative since 1983 financial year.(iii) Central technical supervision has been abolished and a committee on simplifying technical standards and specifications set up.10(iv) Regions have undergone a change of status from that of public establishments to local authorities. Regional Councils have been elected by direct universalsuffrage since 1986.11Other Changes(i) The President of the General and Regional Councils head the Departmental and Regional Executives respectively.(ii) The powers of the former prefects known as Commissioner of the Republic — the sole central Government representatives in each department and regionhave been defined. (iii) The regions of Consica, Guedeloube, Guiana, Martirque and Reunion were established as regional authorities. (iv) The Management of France's three largest cities - Paris, Lyon and Mascille was de concentrated by creating 'arrondisement' councils. These councilsheaded by the mayor of the arrondisement and comprising representatives elected by universal suffrage have restrictively specified responsibilities forcertain activities and the management of local utilities and services.12Second Phase. The second phase of decentralisation process involves the redistribution of duties and the gradual transfer over 3 years of a certain numberof Central Government functions to local authorities based on two fundamental principles.13 (a) Extending of compensation for the cost of discharging thetransferred functions. A consultative commission composed of local elected representatives chaired by a judge from the audit court renders advice on assessmentsof transferred charges and claims advanced by the local authorities involved. 71This principle implies a transfer of resources corresponding to the cost of discharging the transferred functions. The state allocates certain fiscal resourcesand funding for local authorities in the shape of 'block decentralisation grant'. Concurrently responsibility for certain items of expenditure on the policeand the courts reverts to the State. Besides, certain central services are transferred to the departments and regions which are mainly responsible foradministering the transferred functions.The other principle revolves round the freedom of local authorities. They may organise themselves as they deem fit choose whether or not to call on centralgovernment services and use the transferred resources as they see fit No local government structure may exercise authority over another when functionsare transferred. The state above has been vested with the authority to arbitrate and settle conflicts between them. Besides, Inter communal cooperationis not compulsory. The Act does not impose it as a prerequisite for the transfer of functions. It only makes it possible.table with 3 columns and 15 rowsThe transfer of functions has been explained in the Table below:?FunctionDate of Completion of transfer as per Acts?(1)Area planning and????operations to regroupagricultural holdingsUp to economicallyViable unitsMay 15,1983?(ii)Vocational training and?apprenticeship.June 1,1983?(iii)Town PlanningOctober 1, 1983?(iv)Social and Health ServicesJanuary 1,1984?(v)Ports and Water waysJanuary 1, 1984?(vi)Schools TransportSeptember 1, 1989?(vii)Education??(viii)Environment??(ix)Cultural Policy(Latest January 9,1986)table endThe above table indicates that since May 15,1983 the departments decide on re-grouping of agricultural holdings into economically viable units and financethese operations. Since June 1, 1983 regions have been made responsible for matters concerning continuing vocational training and apprenticeship. The statenow only retains authority to decide what services will manage certain national schemes or schemes72not linkable to a specific region such as refugees and the handicapped and priority schemes adopted by the inter-ministerial committee for vocational trainingand social advancement.Certain prominent functions transferred to communes are those of drawing up town planning documents and granting land use permission in communes which haveapproved land use plans.Since January 1,1984 the departments have general competence in the areas of social aid, prevention of health hazard, and accidents and welfare services.The state now merely earmarks to the relevant services all matters that are automatically linked to social security and social aid benefits and those involvingnational solidarity as well as questions dealing with public health regulations.Besides, since January 1,1984 departments have been authorised to deal with developing and managing maritime trading and fishing ports and communes fordeveloping and managing maritimes marines. Thus 350 ports have since been transferred to local authorities. Only the autonomous ports, 23 ports of nationalinterest or adjacent to military ports are under state control. Regions can also apply for acquiring powers regarding canal and river ports.Since September 1, 1984 responsibility for school transport has been solely transferred to the Departments and within the boundaries of urban transportareas with the authority charged with organising that transport.In 1985, public education, environment and cultural policy had been transferred. As regards primary and nursery school buildings responsibility rests withcommunes, whereas for junior secondary schools with departments and senior secondary schools and certain specialised establishments with Regions. The localauthorities have been involved in planning future training requirements and future investment programmes. A departmental national education council includinglocal representatives has been substituted for various advisory bodies. The local authorities have been authorised to use school premises for complimentarycultural sports, social or socio-educative purposes.In the environmental sphere Departments have assumed responsibility for footpaths and communes for safeguarding the perimeters of natures' reserves.As regards cultural activities the local authorities have been authorised to take up libraries, museums and archive services, The Central Government retainsonly supervisory role.73Before we conclude the much desired changes brought about in French local Government, reference to the financial apron strings which reduced local bodiesprior to 1982 to a position of subservient to the Central Government and the changes effected in the system may be made.Removal of financial bottlenecksThe system of specific subsidies to the local bodies for particular schemes has been replaced by a 'Block Capital Spending Grant' for communes and departmentsby the passage of Act on January 7,1983. It provides financial assistance for investment. The recipient local authority is no longer under any obligationto act according to the dictates of the Central Government As such local body's freedom is duly protected and the amount is payable to the local authoritywithin one month of the local authority paying for the capital works. Moreover, the financial help is definite as the rate of Central Governments' participationis known in advance for the year.Secondly, cross financing has been abolished. The Central Government foots the entire cost of expenditure for the functions it discharges and no longercontributes to departmental expenditures. The breakdown by group of social aid expenditure ends. The Communes still make contribution to departmental expenditure.Evidently the most substantial function has been transferred to the departments.ConclusionDe centralisation undertaken and applied on the personal initiative of the President of France in 1981, resulted in a structural reform unprecedented inFrench administrative history. According to Minister of Interior, the reform was contemplated to earmark more freedom and being government closer to thecitizens. 'It is leading to a reorganisation of the state with a view to efficiency and less bureaucracy".14 The Decentralisation policy has led to transferof more responsibilities for elected representatives and also transfer of executive powers formerly possessed by the Prefects to the Presidents of Generaland Regional Councils. Besides, it has earmarked wider powers for local authorities and aimed at modernisation of local finances by amalgamation of thebulk of the capital subsidies into global departmental or communal capital grants. It has established a unified local civil service.President Mitterrand - an avowed crusader for decentralisation, in fact has pursued vigorously democratisation of local bodies and also their decentralisation.Hence the old concept of excessive centralisation74stands exploded and France has accorded proper status to the local representatives. They have no longer to dance to the tune of Minister of Interior. Theyhave been able to acquire some entity rightfully due to local representatives.References1. James Bryce, Modern Democracies, Vol. I, p. 319.2. Soltan, Roger H., French Parties and Politics, p. 20.3. Munro, W.B. Govts. of Europe, p. 502.4. Ogg & Zink, "Modem Foreign Government", p. 589.5. Carter, The Government of France, p. 213.6. Dorothy Pickles, France: the Fourth Republic, p. 130-131.7. Statement of Minister of Interior and Decentralisation, February 5, 1986.8. the system was elaborated by Act of July 22,1982.9. The subject of Acts of July 10,1982 and June 17,1983.10. The work of the Committee appointed by an administrative order of October 7, 1983. It lays down a code of Technical Specifications and Procedures applicableto local authorities.11. Bill published on April 10,1985.12. PLMS Act of December 31,1992.13. The Act of January 7,1983.14. State of Minister of Interior and Decentralisation, February 5, 1986.757 POLITICAL PARTIES IN FRANCE"French political parties are weak in structure, feeble in discipline, lacking in definite and comprehensive programmes and followed by heterogeneous andrather fickle clienteles."—S.E. FinerA novel feature of the French Constitution is that it gives constitutional recognition to political parties and allows them to be freely formed and to carryon their activities subject to the requirement that they must respect the principles of national sovereignty and democracy. This is unlike USA, and Indiawhere political parties are extra-constitutional growth and do not find any mention in the Constitution.Main Features of French Party SystemThe French party system has a number of features which may be described as follows:(i) Multiplicity of Parties: The first and the most important feature of French party system is its multiplicity character. This was so under the ThirdRepublic and the same was the case under the Fourth Republic and is even under the Fifth Republic. In a general election, what may be labelled 'national'parties number anything from 12 to 20, and there are also a number of less important formations, some local, some ephemeral, some consisting of littlemore than a label attached to some personality or special interest Between 9 and 15 groups are normally represented in the Assembly, some of them withsmaller affiliated groups, and some with closely related organisations outside the Assembly. This is unlike England and USA, where many parties may existbut in reality only two parties reign supreme. In England two main parties which matter are Conservative and Labour. In USA these are the Republican andDemocratic parties.76Many causes are said to be responsible for the growth of multiple parties in France. First, the French temperament is one of the reasons. As compared withEnglishmen and Americans, the French are theoretical and not pragmatic in politics. They are also very individualistic and prefer to follow their own bentof mind than to follow others. While pursuing their ideals they form themselves into groups which refuse to sacrifice themselves for fusion into a largerparty. They are not prepared to subordinate their views to those of a party. They prefer to leave one party and join or form another. The parties havetheir root in the character of the nation, French individualism and French genius for analysis. According to a Spanish writer, politics for a common Englishmanor American is a game to be ordinarily played between two opposition parties and people subordinate their preferences and interests to the needs of partydiscipline and decisions but in France politics is a kind of battle where the Frenchmen neither unite among themselves nor give any importance to partydiscipline and its decisions.Second, the many political upheavals through which France has passed, have also added to the growth of multiple party system. As a matter of fact, "Francehad a turbulent history during the nineteenth century, so much that she became a byword for social instability and political fickleness."1 In 1791 monarchywas over-thrown and a Republic set up. In 1799 Napoleon became the first Consul and in 1804 he became the Emperor. He was overthrown in 1814 and a newmonarchy was established which was again overthrown in 1830. But monarchy came to be restored in the same year which was overthrown in 1848. Monarchy wasagain restored in 1852 when Napoleon III became Emperor. In 1870 monarchy was again overthrown and a Republic set up. As a result of these political upheavals,there grew up several groups, some promonarchy while others pro-republic. The French people have always lacked a political consensus. Even after De Gaullecoming on the helm of affairs French dissensions still persist sharply.Third, the diversity of the French people in race, temperament, attitudes and wealth has divided them into many groups. According to Bryce, 'The men ofthe North-west are unlike those of the East and South-west, while both are unlike the passionate South-east and the more phlegmatic North-east. The Normansare almost a distinct type, but less so than the Basques. In economic conditions also there are contrasts. Large estates remain in parts of the West andcentre, in other77regions the land belongs in small lots to the peasants. The population of the great manufacturing centres is as excitable as that of the quiet agriculturaldistricts is sluggish and averse to change." He further writes: "France, moreover, resembles a region where volcanic forces have been recently active.Here and there the ground is seared by explosions. Deep chasms have opened; rumblings are heard which may take fresh eruptions. The passions roused inthree revolutions are not extinct. The bitterness of workman against the bourgeois is exceeded by that which rages between the friends and enemies of theChurch."2 On account of this diversity of temperament, character and bent of mind France provides a lot of field for the growth of political groups. Leavingone group and joining the other is an ordinary matter for an average Frenchman.Last, according to Soltan, "Multiplicity of parties is in fact inevitable in any country where the fundamentals are themselves matters of dispute, wheresocial and economic conditions have brought political power within the reach of all social classes and where a highly developed and widely diffused education,coupled with a strong spirit of individualism, creates keenness of political thought and numerous political and social theories. This individualism ofopinion renders impossible any measures of agreement on a large number of subjects and thus destroys the discipline which is the foundation of any partyorganisation."3An important effect of the existence of multiple parties in France has been that the French Government is unstable. It is very difficult to keep the variousgroups together and get work from them in team spirit. The political atmosphere in France is always at the feverish pitch. There goes on perpetual partychanges and perpetual personal bickerings.(ii) Diversity in organisation and policies: The second main feature of French party system is the great diversity in both their organisation and theirpolicies. If, on the one hand, there are anti-Parliamentary and even Fascist groups, on the other, there are groups professing faith in socialism and parliamentarianism.Some attach great importance to political principles and doctrines while others appear to have no general principles or coherent policy. Radicalism, forinstance, has been described as a state of mind, while French conservatism is, more than anything else, a collection of special interests, often in conflictwith each other. Similarly party organisation varies from the organized and disciplined parties on the Left, to the constantly changing Right-wing parties.If the policies of some parties are formulated at party congresses78attended by delegates representing local federations, the others have no permanent organisation outside the Assembly. Then there is the Radical party, whichdoes have an extra-Parliamentary organisation and discusses policies at party congresses, but which has never had a large mass base or a disciplined groupin the Assembly. As a matter of fact, France has no political party comparable to any of the three British Parties.(iii) Fluidity: Another characteristic of the French party system is the fluidity of parties. Parties come and go in bewildering numbers, sometimes withina very short time. After the Second World War a number of parties were born while some disappeared. Some of the groups which take their birth at the timeof elections disappear after one or two Assembly sessions. Many of these groups do not have any existence outside the Assembly while there have been somegroups which were formed in the country but were never represented in the Parliament As said above a national crisis or controversy splits the countryand the parties. During the initial years of the Fifth Republic, the Algerian crisis brought in new parties and divided the old ones. Almost all partiesat that time except the Communists had break-away or minority sections, whose differences with the majority of the party were due entirely to the crisisand whose separation was not necessarily permanent Once the crisis was over, the splinter groups either faded into oblivion or went back to old orientations.To conclude, it may be said that though France suffers from multiplicity, incoherence and fluidity of parties yet one of the striking features of Frenchparty system is the stability of political tendencies. We find six political tendencies - Conservative, Radical, Socialist, Communist, Catholic and Gaulliston the political scene of France for one of which three voters in four have voted since the Second World War. Thus French party system is a combinationof stability of opinion and instability of political organisations. The process of simplification of the party system in France has thus started. The trendof combination and cooperation has commenced. Even the exit of De Gaulle did not disintegrate Gaullist Party. It is hoped multipartyism may eventuallylead to 3 or 4 party system.Main Political Parties in FranceSome of the main French political parties are the following:The Radicals: The Radical Republican and Socialist Radical Party was founded in 1901. As such it is the oldest party and was ingrained in French minds atthe end of the war with all that they abhorred in pre-war79French politics. It remained a leading party in the third and the fourth Republics. It made tall promises to everyone nothing to anyone in particular. Itgot support of small farmers, rural doctors, shopkeepers, school teachers and the lawyers. It was in fact a loosely organised body and sought allianceswith smaller groupings to from R.G.R. - a coalition hardly definable with precision. Its membership has never exceeded 20 lakhs. At present its strengthhas been considerably curtailed -approximately 10000. Thus the party is more or less non-entity. Conflicts within have gradually led to its disintegration.Some of the Radicals joined Gaullist Party, some moved to the left while some joined centrists. A group of them formed alliance with federation of theDemocratic and Socialist Left. The centrists became part and parcel of Democratic Centre. Not more than 25 of Radicals are represented in the Parliamentin the name of Federation. Thus the Radical Party as such has outlived its utility and is virtually dead.The Convention of Republican Institution With the down of era of the Vth Republic 'political clubs' comprising students, intellectuals and leaders of students and professional organisations cameinto existence. They critically appraised the policies of the government and institutions of the country. They stood against Gaullist Six such clubs locatedin different cities forged a united front. The 'Convention des Institutions Republicaines, thus came into existence in 1964. It was an attempt to bringnon-Communist left together to oppose General De Gaulle. The Convention in its congress decided to exercise its influence on political parties of leftThese youngmen strove hard to build strong opposition of the Radicals, the Socialists, the PSU, the liberal Catholics and the Communists against GeneralDe Gaulle. They played conspicuous role in setting up a common candidate of the left for the Presidential election and worked hard to constitute a Federation.Hence they eventually became the part of the Federation of the Democratic and Socialist Left. However, strength of the convention is negligible.Parties of the RightDuring the post war period two groups openly and emphatically advocating the overthrow of the Republic and its substitution by authoritarian regime emergedviz., Poujadist Movement and the Activists.The Poujadist emerged in 1954. It got support of shopkeepers, artisans, small farmers and small political leaders. Initially a strong pressure group calledthe Union for the Defence of Merchants and80artisans, who aimed at lightening the tax burden on small businessmen the movement assumed the form of a Party in the Union and French Fraternity. It advocatedcomplete overhaul of political institutions, the replacement of parliament by the Estates General and the trial of the leaders of the IVth Republic beforethe High Court. By 1955, Poujade, the leader of the movement established local and departmental federation throughout France, throw out the rascals' washis slogan. He wanted ouster of deputies of the National Assembly. He could however capture only 25 seats in the National Assembly with the return of DeGaulle in 1958 the movement came to an end.The Activists. The Activists constituted the second anti-Republican formation. Some Army officers during war in Algeria supported by French settled thereinand also some secret groups in France, some fascists and extremists constituted an organisation termed O.A.S. and indulged in terrorism and indiscriminateassassination. It attempted to kill General De Gaulle as well. In 1961 the leaders of O.A.S. and its two Generals were arrested and the organisation waswrecked.(1) The Communist Party: The Communist Party in France was formed in 1920 and had by far been the strongest party. Except for a few months in 1946, it consistentlypolled more votes than any other party in every election since the war, up to that of November 1962. As recently as 1979, the Communists were polling inmore than 21 per cent of the votes regularly outpolling the Socialists. However in the 1986 parliamentary election the Communist could capture 9.8 percent, the worst showing since 1932. It could not improve its position in succeeding years. With the end of Soviet Union in December 1991 it is likely topale into insignificance at no distant future. However in the recent regional councils elections held on March 22, 1992, the Communist could capture 8.7per cent votes an improvement on their dismal 6.7 per cent in 1988 Presidential election. Before 1988 they used to poll 20 per cent.The Communist Party derived its inspiration from Soviet Russia. Its members profess Marxian and Lenin's philosophy. It was Bolshevik in spirit, principlesand organisation. It is violently anti-American and its object was to establish an economic and governmental system patterned after the erstwhile USSR.According to Baron R. "The French Communist Party is not a party like the others. It is designed for the complete conquest of political power. It is preparedto accomplish this end legally or illegally, at the ballot box or the barricade, within or outside the framework of constitutional democracy."4 It wasopposed to81De Gaulle's Algerian policy and accused its supporters within the party as 'opportunists' and 'right-wing deviationists'. The orthodox in the party regardedDe Gaulle as being wholly an expression of monopolistic interests and personal power. Its opposition to the new regime of the Fifth Republic made the partypay a heavy price by substantial drop in its membership. In Parliament, the party had no longer any influence, since its small numbers deprived it of bothrepresentation on Commissions and the possibility of introducing motions of censure. Today, while the party retains influence through its strong labourorganisations and its control of a number of local governments, it is more and more a marginal band of spoilers. The possibility that the party can becomea significant national force seems to be remote. There is a going on struggle within the party between the 'renovators' and 'hard-liners'. The renovatorscomplain that rank-and-file members are being" alienated by unbending centrally determined policies. The party, according to them, is out of step withsociety. Its opposition to Maastricht Treaty along with hard line Gaullists and the extreme right and defeat in Referendum on the issue on Sept. 20,1992establishes this fact. The Hard-liners, on the other hand, accuse the renovators of creating rebel networks within the party and of planning to run deviationistcandidates in future elections. The hardliners call the renovators "liquidators". In short, the Communist Party is in a fix today. An internal witch huntis being waged which may become the bloodiest in its 67-year history.The structure of the French Communist Party followed Soviet pattern. The basic unit is the cell which is organised in the factory, mine, workshop, farmetc., where occupational groupings do not exist, there is organisation by city districts or across the country-side. The cells are linked territorially.Most cells are composed of three to thirty members though some are twice and even three times the preferred optimum of thirty. The cells meet at leastonce a week. Here the members inspire each other, speak and discuss, and expel the heretics.The higher levels above the cell are territorially linked called the Sections. These are composed of delegates of the cells and local executive committees.Above the Sections are the federations departmental which are organised in each department (province). The delegates from the Sections constitute the Congressof the federation departmental. The Congress elects a departmental bureau or executive committee. The supreme authority is the National Congress, composedof delegates elected by departmental Congresses. The National82Congress elects a Central Committee of sixty to eighty members. The Congress holds its sessions twice a year. The Central Committee meets rarely. The mainspokesman of the party is the Political Bureau which consists of fourteen members and controls the entire organisation. The party it need not be said,is a closely and tightly knit organisation with rigorous and unforgiving disciplinary power. Its organisation is marked by the feature of 'democratic centralism',wherein we find more of 'centralism' than 'democracy.'The working class constitutes the main support of the Communist Party. It controls the oldest and strongest of the Trade Union organisations - the C.G.T.or Confederation General de Travail. It has attracted left-wing intellectuals also whose influence is strong in the numerous literary circles. In June1997 Elections it won 23 seats.(2) The Socialist Party: The Socialist Party came into existence in 1905 and is at present the largest political group in France. In 1936 it came to powerunder the leadership of Blum who died in 1940. Throughout the Fourth Republic the party had to face great practical difficulties. It had to compete withthe Communist Party for working-class votes, while it had either, to support or to participate in Governments, since the Communist Party had passed intothe main opposition with whom it could not ally. The party became divided into majority and minority groups. The minority groups were opposed to the majorityview on German rearmament, on Algeria, on De Gaulle's return to power and on the Constitution. In September 1958, the minority broke away and formed anindependent party, its candidates opposing those of the parent party in the elections. All the candidates of this 'autonomous' party were defeated. InApril 1960, the party united with the Union de la gauche socialists itself a federation of small left-wing splinter groups, opposed to De Gaulle's regimeand including ex-Communists and a number of left-wing intellectuals, and gave to itself the name of Parti Socialiste Unific (P.S.U.). This party, P.S.U.,however, proved neither united nor influential.In 1986 General Elections it captured 32 per cent votes. It was the largest party with 216 seats in Parliament. However, in the recent regional electionsthe Party suffered a defeat eventually leading to the exit of Prime Minister Cresson.5 In Regional elections held on March 22, 1992, the party faced drubbing.Its share of vote tumbled from 30 per cent to 20 per cent. Hence P.M. Edith Cresson had to make way for Pierre Beregovoy, her Finance Minister.6 In theReferendum on Maastricht Treaty September 20, 1992 despite vehement opposition it83could get 51.5 per cent affirmation votes. The opposition describes it as waning popularity of the party.7The orthodox socialist party also was faced with its own problems, and though its leader M. Mollet weathered the storms successfully, Socialist influencein the country was obviously weakened by the disunity and dissensions. On Algerian question the party was divided into four groups led by M. Max Lejeune,M. Gazier, M. Gaston Deffeire and M, Guy Mollet separately. When President De Gaulle tried to convert the regime towards a Presidential system showinglack of respect for the constitution, the gap between three leaders narrowed and they could agree to deplore Gaulle's autocracy. But it was a negativeunity based on criticisms of the President. Under the leadership of Mitterrand the party was reconstructed which is now France's largest political group.Though at that time it formed the Government yet in its 21 years existence the Party has never had a worse result at the Polls. It won 16.4 per cent ofvotes for France 22 regional councils.8In the 1993 Assembly elections it suffered a humiliating defeat as ' the right wing alliance captured over 80 per cent of the 577 seats. However in 1997(June) Election it captured 377 seats along with Communists—coaliation partner.In 1995 Presidential Elections, 14 years' rule of Socialist Party came to an end. Mr. J. Chirac who has been a first conservative P.M. to serve under SocialistPresident Mitterrand in 1986 defeated his socialist rival and Lionel Jospin securing 52 per cent votes. Prime Minister Balladour and extreme right candidatePhilippe de Villiers exhorted their supporters to vote for Mr. Chirac. Besides a sizable part of Jean Marie Le Peir's National Front supporters transferredtheir votes to Chirac8A.The structure of the Socialist Party is very democratic and liberal. Its lowest organs are the Sections which are composed in Cantons and Communes as primaryparty organisations. The Sections combine to form a departmental (provincial) federation which has a federal Congress consisting of delegates from theSections. The delegates from the various federal Congresses constitute the National Congress which meets once a year to adopt the party programmes andelect the National Council and Executive Committee to act between the two annual Congresses. The executive committee controls the party, press propaganda,and party members of the elected official bodies to carry out the decisions of the Congress. The National Council performs electoral functions like endorsingcandidates for elections.The party believes in democracy and republic. It stands for nationalisation, the welfare state, planned economic development,84public housing, industrialisations, educational opportunities, equitable tax structure, more municipal autonomy and more social welfare services. The partyfollows the Western foreign policy, supporting the Brussels Treaty, N.A.T.O., the Schuman Plan, the Western Union Pacts, the European Economic Community.It advocated extended self-government and economic development of colonies but not outright independence. It stands for famous Maastricht Treaty whichadvocates European political economic and Monetary Union. In a referendum on the issue on September 20, 1992 the Party won by 50.5 per cent votes.'It is largely a working class party and has to compete with the Communist Party for membership. A large proportion of civil servants, teachers and peasantproprietors also constitute its members. Women have a small part in the party. It is not attractive to youth. Its chief centres are in the principal townsof the country. In the countryside, it has little appeal.(3) Movement Republican Populaire: (MJi.P.). The Popular Republican Movement is the product of Second World War and took birth as a movement of Resistanceagainst the German atrocities and Vichy regime. It is mainly a Catholic party and is based on the principles of Christian democracy. Moral and spiritualquestions play an important part in its programmes. It aims at the complete regeneration of the political life of France. It is based on humanism and Christianethics. It rejects both materialist Marxism and unbridled capitalism. It has faith in the personal dignity of man and firmly believes in the cohesion ofthe family and parental obligation. According to it, the right to educate belongs to the father and the family, not the state. The right to free associationis the natural right of man. Peace is the supreme decree, but wars are just only when the Christian ethic has to be defended. It defends the instinct ofownership but is opposed to materialism. It generally stands between 'individualism' and 'collectivism'. Speaking of MRP Pierce Henri Pentagon said, "MRPis meant to govern in the centre with the means of the right to meet the needs of the left." It could attract over 25 per cent votes. However since 1962no centrist party - virtually splinter groups has been able to win adequate number of seats in the Assembly.In foreign affairs, the M.R.P. has been a strong advocate of the prestige and rights of France in its colonies. It has been opposed to the right of self-determinationfor the colonies, though it has advocated more local autonomy for them. In regard to Algeria it favoured a negotiated settlement, though it had confidencein De Gaulle's85intentions. It has been the only party to have been consistently and unanimously in favour of the policy of European integration.Though the party is firmly Republican and democratic, it has found it difficult to establish itself as an authentic left-wing party. It is uneasily poisedbetween Right and Left, refusing partnership with the former, but itself suspect to the latter because of its sympathy with catholism and its rejectionof Marxist doctrine. It has also not yet been able to get a firm hold in the traditionally minded country areas except in the predominantly Catholic departmentsof Eastern and Western France. Its membership consists mostly of Catholics, however, Protestants and Jews also are its members. It is considered a non-sectarianparty inspired by human ideals and moral values.The M.R.P. like other parties is organised upward from the local sections and departmental federations to the National Congress. The Sections are organisedin the Communes. One Section must have a minimum of ten members. The Sections within a department combine to form a departmental federation which shouldhave a minimum of ten Sections and one hundred members. Each federation has a Congress consisting of delegates from the Sections. The Congress elects anexecutive committee. The departmental federations constitute the National Congress which elects the party president and secretary general, supervises thereport of the Secretary General, decides policy matters and party strategy and evaluates the performance of party deputies in the Parliament. The NationalCongress elects an Executive Committee which endorses the party candidates and enforces party discipline.(4) The Union for the New Republic (U.N. R.): In June, 1958 General De Gaulle received power to rule by decrees and the parties in France were sent on along vacation. They assumed their political activities with parliamentary election in November, 1958. The U.N.R., the so-called Gaullist party, was formedonly a few weeks before the 1958 elections, by the fusion of four Gaullist movements of very different political complexion. These four movements were- The Social Republicans, The Union for French Renewal, The Republican Convention and The Workers' Committee. Prior to the formation of U.N.R, the Rallyof the French People (R.F.P.) represented Gaullism in France, which was formed in 1946 by General De Gaulle. The R.F.P. was disbanded in 1955. The U.N.R.which was formed on the eve of 1958 elections was without any programme, policy and organisation. De Gaulle did not officially associate himself with theparty, though its86principal sponsors, M. Sonstelle and M. Delbecque were men with a long record of the Gaullism. The U.N.R. swept the elections and won 210 seats out of 482.For the first time during the twentieth century, one party had a virtually overall majority. Once the election of 1958 was over, the Deputies had to workout a policy for the party, but they found themselves divided on questions of leadership and organisation, as well as on questions of policy. For the timeit was a Governmental party and supporting General de Gaulle in his efforts to solve the Algerian problem and build a stable and strong government in France.But soon the U.N.R. Deputies started protesting against the technocratic character of the Government and called for the rehabilitation of the functionsof Parliament. The Prime Minister himself was complaining of the 'isolation' that power had brought with it. He, on a number of occasions, was made toeat his words and often suffered humiliation at the hands of De Gaulle—the President Ultimately Debre resigned in April, 1962.The policy of U.N.R. comprised economic expansionism with planning, self-determination in Algeria, political stability in France and a policy of independentFrench strength in international affairs.In 1959, the left-wing Gaullists united to form the Union democratique du travail (U.D.T.). It differed from the orthodox left on two points. It was preparedto work within the framework of the new institutions and accepted General De Gaulle's leadership in general, and it was specifically in favour of the referendumand the dissolution as genuine democratic instruments. In the 1962 election, the U.D.T. fused with the U.N.R. In 1967 a major reconstruction took placewhen the U.N.R. became the U.D.R. The future of the Gaullist was eclipsed after De Gaulle's resignation in 1969 from the Presidency. No other leader couldhold them together and make them count as a force to reckon with. After the end of Gaullist era Giscardian era ushered in for the party. However due toopposition of a Charismatic Prime Minister-Chirac, Giscard was defeated in 1981 election. In March, 1986 election they got united and secured 291 seatsin the assembly.10The U.D.R. is in no way the fascist party which the RFP was earlier. It is not fascist in organisation. It has often been criticised for having no policy.The basic unit of the party is the parliamentary constituency. The function of this unit is mainly to select the parliamentary candidate and help him duringhis election campaign. The UDR is mainly a party at the national parliamentary level as well as in a number of large and medium-sized towns. It does nothave a mass base in the country side.87General De Gaulle staged a return to France in 1947 as head of the Provisional Government. He stood for a strong Presidential Government, the complete overhaulingof the stagnant economy and broad social welfare measures. However, within 18 months of his rule he tendered resignation and entered politics as head oflarge political movement with the sole object of establishing new constitution in place of IVth Republic which was full of lacunae as the IIIrd RepublicConstitution. The future of Gaullists, however, remained eclipsed since De Gaulle's resignation in 1969. With the end of Gaullist era and the charismaticleader Chirac came on the helm of affairs. In 1978 General Elections the Centre—Right coalition won the General Elections but Chirac Gaullists predominancein the Coalition was reduced by twenty seats. Chirac contested for Presidency in 1981 but he finished third in the first ballot of Presidential electionsand allowed his followers to vote as they wished. That enabled socialist leader Mitterrand to get elected. However, in March, 1986 and 1993 elections rightwing alliance secured absolute majority in the National Assembly.In the Referendum on Maastricht Treaty held on September 20, 1992, the coalition of hard line Gaullists, the extreme Right Nationalist Front, the CommunistParty and the dissident socialists vigorously campaigned for (No) and lost by razer thin majority (51 to 51.5).To conclude, it may be said that in the Fifth French Republic, the party system in France has moved from a loose and almost indescribable configurationof parties to a streamlined system. No doubt, it is still a multi-party system with numerous break-away groups and federations. However, three parties—theCommunist Party, the Socialist Party and the Gaullists have been the main political parties of the Fifth Republic. Despite instability of political organisations,French politics is marked by the stability of political tendencies.References1. D. Thomson, The Democratic Ideals in France and England, p. 26.2. Lord Bryce, Modern Democracies, vol. I, p. 322.3. Sol tan, Roger, H., French Parties and Politics, p. 6.4. Baron, R., Parties and Politics in Modem France, p. 51.5. Hindustan Times, dated May 14, 1992, p. 12.6. Ibid., April 3, 1992.7. April 4, 1992.8. Hindustan Times, dated September, 21st 1992. 8A. Hindustan Times, dated May 8, 1995.9. Ibid., dated September 21, 1992.10. Hindustan Times, September 21, 1992.88 1THE CONSTITUTION OF JAPAN1 INTRODUCTORY"Japan's peaceful democratic revolution was born of a lost war."—John M. MalaJapan is often called the 'England of the East' Both the countries Japan and England have many similarities. Both are the groups of islands. As Englandis separated from Europe by sea, so is Japan separated from Asia. Both the countries followed a policy of isolation until the foreign invaders ended thispolicy. Both the countries had social and political changes only after industrial revolution. Both the countries have monarchy even today and both havedeep faith in democracy.Japan is situated to the East of Asia. It consists of four main islands - Honshu, Kyushu, Hokkaido and Shikoku plus numerous smaller islands. In total area,Japan is 377,815 square kms or one-eighth of India. Honshu is the largest island. The five big cities of Japan - Tokyo, Ngoya, Yakoshama, Kyoto and Kohare situated in this island. Japan has beautiful natural scenes.The terrain of Japan is mostly mountainous. There are about 250 mountains of the height of more than 2,000 meters. The biggest plain is Kyoto near the cityTokyo where 120 lakhs of people live. Nanti and Kynkei are the two other plains. These plains have fertile land. The rivers of Japan are short and swiftIt has no great river valleys. The rivers have little or no value for navigation. They mostly serve as a source of hydro-electric power.A cold ocean current flows northward of Japan while a warm current flows southward. Fish are richly founded near the sea coastline. Fish form the main dietof the Japanese people. Fishing has been a main industry of the Japanese economy. About twenty per cent of the population is engaged in fishery.The forests hold an important place in the economy of Japan. About 80 per cent of the mountainous terrain is covered by green forests. From these foreststhe building wood, fuel wood and synthetic fibre are obtained.2Japan is known for earthquakes. The number of earthquakes is 1500 a year. There is an abundance of coal mines, but since these mines are not located inthe industrial area so the generating of hydro electric power has received great emphasis. The country was also found to be rich in petroleum but onlyafter 1900. Japan also has big copper mines. Gold and silver are found in the southwestern part of Kyushu. Besides, zinc, tin, iron, sulphur and lead arealso available. The iron produced in the country does not meet the needs of Japan. India exports a large quantity of iron ore. The nation is greatly dependenton foreign trade.Japan is an industrialised country, yet agriculture holds an important place in its economy. About 40 per cent of the population depend upon agriculturebut only 13.9 per cent of the land is cultivable, the rest being mountainous. The average acreage of fields is two and a half. Rice is the main crop. Thereis intensive cultivation in the country as the cultivable land is less in area. An attempt is made to grow crops which ripen soon. At least two and oftenthree crops are grown. Sericulture also holds an important place in the agriculture of the country.The first people to settle on the islands were the Arian who were of the Caucasic stock. The Arians were displaced by the Mongoloids who landed in the country.In the third and fourth century Japan established its relations with Korea. The art of weaving, tanning and metal work reached Japan through Korea. Duringthis period Japan learnt a lot from Korea and China in the field of art, education and handicrafts. Buddhism reached Japan in the Sixth century throughChina and Korea. The Buddhism has deeply influenced the customs and social institutions of the land. Besides Buddhism, Shintoism is also professed in Japan.Shintoism believes in ancestor worship. It received royal aid which was ended in 1947. Christianity also prevails in Japan. The Christianity has contributedlargely to the westernisation of the Japanese civilisation. The citizens enjoy freedom in the matter of religion.The population of Japan is about twelve crores. During the last few years Japan has achieved remarkable economic progress, however, the problem of providingemployment for an increasing population remains. Although Japan is considered to be the most progressive among Asian nations, yet the Japanese believethat their country has been created by God. Most of the Japanese are fatalist.3Although Japan is a mixture of different races as the people belonging to Mongoloid, Caucasic and Negroid races live there, yet it is a nation with commonlanguage, a common culture and a common way of living. There is strong nationalism and 'in-group' feeling among the Japanese. No other country is so freefrom internal feuds as Japan. The Japanese are ever prepared to make sacrifices for their country. They are full of national spirit. In 1905 they defeateda great European power - Soviet Russia. In the second world war Japan fought bravely against the Allied Powers. Although Japan was defeated, yet in braveryand courage the Japanese were unsurpassed. After the War, Japan soon reconstructed its war-shattered economy and now it has acquired the status of a leadingnation.Japan today is a thriving complex of industry, commerce, finance and agriculture. The notion is in an advanced stage of industrialisation, served by a massiveflow of information and highly developed transportation network. However, the economy is presently facing a recession which the country is attempting tocross over.Development of Japan's ConstitutionChitoshi Yanaga has divided constitutional history of Japan into three periods - Prefeudal age, Feudal Age and post-Feudal age. Little is known about theearly constitutional history of Japan. The Japanese historians are of the view that the empire of Japan was founded by Emperor Jimmo in 660 B.C. and sincethen Japan has been governed by the unbroken line of his dynasty. Jimmo is said to belong to Yamato tribe. During the ancient period the basis of governmentwas patriarchal. The Emperor ruled like a father over the family. He was the owner of the arable land which he used to distribute among the different familiesof the cultivators. The Emperor exercised his powers through the tribal chieftains. Thus the royal power was decentralised which continued till 645 A.D.Thereafter, there came a change in the system of government and there began the second stage of the prefeudal age.The second stage continued up to 1185. During this period feudalism got a strong foothold in the country. Starting about the fifth century, Japan came tobe increasingly under the influence of Chinese civilisation. As a result thereof, the centralised bureaucracy was established. Formerly, the power wasdistributed among the feudal lords, but now, the emperor centralised his powers. The reforms of 646 ended the patriarchal system and the emperor beganto rule like a despot. He became the source of all powers and began to rule the state as its head. Direct political power was established over the people.Confucianism and Shintoism contributed to the enlargement of the4powers of the emperor and his honour. The emperor became the highest priest of the nation, the sovereign ruler of the country and the Chief Commander ofthe military services. During this period the members belonging to the Fujimara dynasty held the important offices.FeudalismTowards the end of the century certain circumstances conspired to bring to an end the contemporary system. The centralised bureaucracy, an institution borrowedfrom China did not suit the conditions. The emperor never functioned effectively. The real power was in the hands of the bureaucracy. The people belongingto the Fujimara dynasty held the highest offices. They exercised all the powers of the emperor in his name. Besides the increase in the power of the Fujimaradynasty there were some other factors like the increase in the number of manors and the birth of 'Samurai' class in the provinces which helped declinethe power and influence of the emperor. The increase in the number of manors affected adversely the royal revenue. Along with it, corruption in administrationalso grew. The central control over the provinces loosened, increasing thereby the danger to the life and property of the people. The feudal barons cameto recruit armed retainers to help protect their domains. Gradually their power continued to increase. Later on the aristocrats dissatisfied from the Fujimaraadministrators assumed the leadership of the 'Samurai' class. The leaders belonged to the Taira and Minamoto races. But there was a feud between the tworaces and the Minamoto race succeeded in establishing its supremacy. Yorimoto, the head of the Minamoto race gave to himself the title of 'Shogun'. Thusafter a century of civil feuds, peace and order were established. But now the influence of the nobles came to an end and in place thereof feudalism wasbom wherein power passed on into the hands of the military leaders. The system continued for seven centuries which deeply influenced the ideas, the institutionsand the customs of the Japanese people. Yoritano made Kamekura his capital. Gradually the entire powers passed on into the hands of Shogun who ruled withthe help of powerful feudal lords. In the later half of the sixteenth century there was a civil war between the feudal lords. Ultimately Tokugawa Iyeyashu,won a decisive victory in the year 1600 and assumed the title 'Shogun' in 1603. The Tokugawa regime continued till 1867. In that year the last TokugawaShogun resigned and returned authority to the emperor.Salient features of the Japanese Feudal System(i) The real power during this period vested in the hands of Shogun. Although the work was carried in the name of the emperor yet Shogun5was sovereign. The emperor used to appoint the Shogun but the emperor had no particular role in the affairs of the nation. The Shogun consulted the emperorbut he took decisions himself. Often the people did not even know the position of the emperor.(ii) The Shogun took help from the Samurai in his administration. The Samurai was a special class trained in the art of war. They were successful warriorsand belonged to the noble class. They enjoyed several privileges. They had separate laws and separate courts.(iii) Japan was divided into several fiefs, which were under control of the feudal lords. The feudal lords were called 'Daimyos'. The Daimyos were autonomousin their administration. The people had direct contacts with neither the Shogun nor the emperor. They regarded Daimyo their emperor. But the Daimyo wasunder strict control of the Shogun. There was a well organised department of spies who used to provide information about the activities of the Daimyo.In short, the Daimyo was free only in local matters. The matters of national importance were in the hands of Shogun. Therefore, this age is called theage of "Centralised feudalism."(iv) Japan was divided into various classes. Up the ladder there were Samurai and Daimyo. The Samurai were the warrior class while the Daimyo were the ownersof the fiefs. There was no intellectual class. Below the ladder were the clergy, doctors and other.The economy was mainly agricultural. The number of cultivators was quite significant Forty to fifty per cent of the produce was realised from them as tax.Sometimes, they were forced to do 'begar'1 for public purpose.(v) The Shogun administration was simple in structure. Shogun was the highest officer who enjoyed supreme powers. Sometimes the actual power passed on intothe hands of a Council of Elders or of some palace official or other high official. The management of day-to-day affairs like collecting taxes, maintainingpeace and order and making people follow their religion was under the control of Junior officials.The village administration was autonomous. The villages were small. The representatives of the Shogun appointed some officers from among the rich peopleand old feudal lords whose functions were to represent their village in their talks with the high officers, to pronounce the orders of the Shogun, to collectthe taxes, to decide the minor disputes, to maintain records, to bring in the reforms in agriculture and to keep an eye upon morals of the villagers. Therealso used to be a village council. A particular feature of the village administration was6the device of mutual responsibility. The village was divided into groups of five families. Each group formed a unit. If a family in the unit was unableto pay its taxes in full, it was the responsibility of the unit to pay up the difference.(vi) Another feature of the Shogunate political structure was the policy of complete isolation. The Tokugawa administrators forbade all foreign contacts,except for carefully regulated trade with the Dutch and the Chinese at the port of Nagasaki. Christianity was considered a subversive doctrine and it wasapprehended that if Europeans were allowed to enter the country, Christianity would spread. It was also feared that some of the feudal nobles might getpowerful enough to challenge Tokugawa hegemony through an alliance with the European nations.Thus during the Shogunate age Japan was a regulated feudal society which was kept away from the foreign ideas and influences. But Japan had to pay a heavyprice for this policy of isolation. It could not benefit from the inventions and progress made by the western countries. With the passage of time the Tokugawaadministration and the smaller principalities had to face several financial difficulties. To overcome these difficulties they resorted to higher tax leviesand forced loans. This caused discontentment among the Samurai and land-owning class. Kahin writes, "The Samurai had social standing but no wealth; themerchants had wealth but no social standing.2 Besides, the country had to face recurring natural disasters such as flood and there were periodic famines.The lot of the small agricultural producers became wretched. Consequently the peasants also revolted. In brief, the "time of troubles" had come.On the other hand, Russia and the United States were forcing Japan to abandon its policy of isolation. The Tokugawa rulers faced a dilemma. They could notabandon the policy of isolation without serious internal repercussions. On the other hand, they could not hold off indefinitely the foreign powers whopossessed superior military weapons. Faced by internal difficulties and foreign pressure the Tokugawa Shogun resigned and handed over the authority tothe Emperor Meiji. This transfer of power is called the Meiji Restoration. It opened the third age in the constitutional history of Japan.Post Feudal PeriodThe Meiji period represents one of the most remarkable periods in the history of Japan. During this period Japan achieved in only a few decades what hadtaken centuries to develop in the west—the creation7of a modem nation, the growth of industries and the modern political institutions. The emperor Meiji shifted the capital from Kyoto to Tokyo. The Meijiabolished the feudal system. All the fields were transferred to the Emperor and for every province a governor was appointed. All class privileges wereabolished. The common people were allowed to enter into public duty. All were declared equal before the law.On 6th April, 1868, the Emperor issued a historic document the Charter Bath. This Charter Bath is sometimes called the 'Magna Carta' of the Japanese people.The Bath contained five principles: (i) A council will be called to decide all measures by open discussion; (ii) Men of the upper and lower classes shall without distinction be united in all enterprises;(iii) Civil and military officers shall be in one accord and all the common people shall be so treated that they can attain their aims and feel no discontent;(iv) Old evil ways and customs shall be abolished; (v) Knowledge shall be sought for throughout the world in order to establish the foundations of the Empire;This Bath had two significant features; firstly, the creation of a deliberative assembly and secondly, it pointed out that the new government would followthe programme of Westernisation and that anti-foreignism would be discouraged.After the proclamation of the Bath the Meiji began a programme of reforms in the social and political structure. In the social field the distinctions betweenthe Samurai and the common people were removed. All were made equal before law. Military was nationalised and compulsory military service was enforced.The military was equipped with the latest weapons and it was organised on the German way. Education also spread. New schools were opened and compulsoryprimary education was decreed. Teachers from foreign countries were invited and Japanese students were sent abroad.In the economic field too, the nation made remarkable progress. The government took lead in building roads, rails, telephones, telegraphs and post offices.There was growth of mineral wealth and big industries were established. The coinage system was reformed and banking system introduced. Trade with foreigncountries increased and thus by the end of nineteenth century Japanese people had become modernized.8In the political field several reforms were introduced. The feudal principalities were replaced by prefectures which were a part of a centralised administration.A Civil service system based on the merit system was set up. A legal code and a judicial system copied from continental European models were adopted. Thefeudalism was abolished and Japan again became a strong monarchy. According to Chitoshi Yanaga, the period between Restoration and feudalism was an interlude,a transition stage which was dominated by a small oligarchy under an interim system of absolute monarchy.During the Meiji rule new energies were suddenly released. Before the 19th century ended, the country became involved in the Sino-Japanese war of 1894-95.After ten years it became involved in the Russo-Japanese war of 1904-1905. Japan emerged victorious from both. As a result of these wars Japan rejoinedSouth Sakhalin and acquired Formosa and Korea.In 1874, the Government to satisfy an important group of officials, established a Senate as a legislative chamber. The Senate was mainly a deliberativebody, it could not legislate. It did not consist of the elected representatives of the people but was composed only of the appointed members, the nobleand official classes. But these reforms of 1874 did not satisfy the liberals. Consequently, an agitation for a constitution gained momentum in 1877. In1878 the government gave some more concessions to the people to pacify the popular demand. In 1880 representative assemblies were set up elected on thebasis of limited franchise for the cities, towns and villages, but this also did not silence the popular demand for the constitution. Ultimately in October,1881 the government in the name of the emperor promised that the parliament will be convened in 1890 and the constitution would be granted. The followingyear Prince Ito was sent abroad to study the various constitutions. In 1883 Prince Ito returned from abroad. He was appointed as the chairman of the Bureaufor Investigation of constitutional systems. Ito was very much impressed by the constitution of Germany. He restored the nobility as a preliminary stepto the formation of the Upper House of the Japanese parliament. The cabinet also was modelled on the German pattern. Ito became the Prime Minister.By 1888 the draft of the constitution was ready and was presented to the newly created Privy Council for ratification. The Privy Council approved it withsome minor amendments. On February 11, 1889 the constitution was gifted away to his subjects by Emperor Meiji.9Salient Features of the Meiji Constitution(i) Written and briefThe Meiji constitution was a written constitution. It was about half as long as that of the United States. It consisted of 76 articles and was divided intoseven parts. One of the reasons for its being brief was that quite a large and important items, such as the House of Peers, Finance, Elections, successionto the throne were covered by group of organic laws promulgated soon after the declaration of the constitution. Another reason for its being brief wasthat the constitution makers were very particular to be as brief as possible. Some of the articles contained only one or two sentences. The constitutionwas couched in so general words that in 194S it was said that this constitution could be interpreted and enforced in a way as to build a democratic systemand that there was no need to have a new constitution.(ii) Imperial GovernmentThe constitution laid emphasis on the institution of the Emperor. The very First article read "The empire of Japan shall be reigned over and governed bya line of emperors unbroken for ages eternal." Articles 1 to 17 enumerated the powers of the Emperors. The Emperor was the source of all authority. Alllaws were to be sanctioned by him. He called the session of the Diet and dissolved the Lower House. He could issue ordinances. He was the head of the Executive,as such he appointed all the officers. He was the Supreme Commander of the army and navy with power to declare war, conclude treaties and make peace. Theministers were responsible not to the Diet but to him. The Emperor used to appoint the Prime Minister and other ministers were appointed by him on therecommendation of the Prime Minister. The Emperor of Japan had more powers than the King of Britain. The emperor had vast powers and combined in himselfall sovereignty. Still the Emperor reigned but did not rule. He exercised his powers in consultation with the Ministers and the Privy Council. Accordingto Ogg and Zink, "All these functions were not performed by the Emperor himself but were done in his name. The emperor had little hand in the formulationof policy and execution of public affairs."3 Dr. Fujisawa writes, 'The Emperor of Japan reigns but does not rule." He hardly if ever took a step againstthe ministers. However, it cannot be denied that the Emperor had a far greater moral power and influence. The people worshipped him and considered hisperson as sacred and inviolable. He represented and symbolised the whole nation. According to Chitoshi Yanaga, "He was in a position to give admonition,encouragement, or warning as the occasion arose without actually involving himself as a mediator."410(iii) Fundamental RightsThe second chapter of the constitution enumerated the fundamental rights of the citizens. Articles 18 to 32 dealt with the rights and duties of the Japanesepeople. No Japanese subject could be arrested, detained, tried or punished except according to law. Their property was protected. They had freedom of religion.They had the right to form associations and hold public meetings. They had also the freedom of speech and expression.But these rights were not inviolable. They were subject to many limitations. According to Article 20 the people could enjoy these rights, "subject to therestrictions placed by law." The courts did not have the right of judicial review. There was no provision for the writ of Habeas corpus. Thus, the fundamentalrights of the people were limited and not absolute.The constitution also mentioned some of the duties of the people two of which were important. These were the duties to pay taxes and serve in military.(iv) Bicameral LegislaturesArticles 33 to 56 of the constitution described the organisation and powers of the Diet. The Diet consisted of two chambers, the House of Peers and theHouse of Representatives. Article 34 described the organisation of the House of Peers. It consisted of 400 members who belonged to the noble and higherranks of the society. The House of Representatives consisted of 450 members elected directly by the people for four years. The tenure of the House of Peerswas seven years. The voting age was fixed at twenty-five. In addition to the age qualification a voter must also be a tax payer, paying at least 15 Yanannually in direct taxes. Only males were entitled to vote.The Diet was to meet yearly and the duration of the session was fixed at three months. As compared to the British Parliament the Japanese Diet was lesspowerful. One of the reasons was that most of the government work was done through decrees rather than through Acts. Moreover, it could not reduce thedemands nor could increase them without the assent of the ministry. There was also a provision that if the Diet failed to approve a budget in any one year,the government could spend according to the budget of the last year. Besides it, the ministers were not responsible to the House, Thus, the Diet was subordinateto the executive and did not have an important place. It was reduced to a low position by the cabinet.11(v) Privy CouncilArticle 56 of the constitution provided for a Privy Council to deliberate upon important matters of the state. It was an extra institution between the cabinetand the Emperor. It consisted of about 26 members who used to be big businessmen, diplomats, generals, admirals and other men of distinction. The ministerswere the ex-officio members of the Privy Council. The members were appointed for life. The Council had to approve the emergency decrees, the declarationof war and peace. It advised the Emperor on the matters relating to throne and royal family. In case of a disagreement between the cabinet and the PrivyCouncil the Emperor accepted the advice of the Privy Council. The members of the Council were conservative and orthodox and so they placed obstacles inthe development of democratic government. Gradually the council reached the peak of supremacy.(vi) The CabinetThe constitution was silent about the cabinet. The constitution only mentioned that the ministers will give advice to the emperor and will be responsiblefor it. In 1885 on the formation of the government a cabinet was formed and it continued into existence. The Prime Minister was appointed by the Emperoron the advice of the Council. It was not obligatory for him to appoint the leader of the majority party. But after 1920 when the system of party governmentreached its zenith, the leader of the majority party was appointed the Prime Minister. The Prime Minister selected his colleagues who were appointed bythe Emperor. It was not necessary for the ministers to be the members of the Diet. The Cabinet met once a week. The ministers gave advice to the Emperor.They were responsible to him. The Emperor could remove a minister for incapacity. The House of Representatives could not compel the cabinet to resign.The powers of the cabinet were limited both in theory and practice. The Prime Minister did not enjoy the position of his counterpart in Britain. Yet thecabinet was the main organ.(vii) Rigid ConstitutionThe constitution laid down a rigid method for its amendment. The proposal for amendment could be submitted only by an imperial order. The Diet discussedand voted upon the proposal, subject to the provision that for the opening of debate at least two-thirds of the whole number of the members were present,and no amendment could be passed unless a majority of not less than two-thirds of the members present was obtained. The constitution conferred the rightof initiating the amendment to the Emperor because he was the sole author of it. It may12be noted that not a single amendment was ever made to this constitution. It was replaced by an altogether new constitution in 1946.The Meiji Constitution remained in force for 58 years but it was never amended. During this period Japan made an all round progress. On the one hand, itmade rapid economic progress, and became a strong empire while on the other, democratic and parliamentary institutions were established in the country.The people began to take active interest in the political affairs and liberal tendencies grew. Though the power was in the hands of the big business magnatesand generals, yet the people during this period got adult franchise and political rights and Japan became a modem nation. According to a writer the MeijiRestoration was like the bursting of a dam behind which had accumulated the energies and forces of centuries. Japan achieved in only a few decades whathad taken centuries to develop in the West the creation of a modem nation, with modem industries, modern political institutions and a modern pattern ofsociety. The surge and ferment caused by the sudden release of these energies made themselves felt overseas. Japan emerged victorious in the Sino-Japanesewar of 1894-95 and the Russo-Japanese war in 1904-1905. When Japan entered the First World War, it was one of the big Powers of the World.In 1931 Japan occupied Manchuria. In May, 1932 a group of army and navy officers forced their entry into the Prime Minister's residence and killed PrimeMinister Inuki Tsuyoshi. There were other acts of violence. The party rule came to an end in Japan and power passed on in the hands of the military leaders.They started extending the territories of Japan. They did not accept the resolution of the League of Nations regarding the occupation of Manchuria. TheUnited States also failed to bring an agreement. On December 17, 1941 Japan entered the Second World War. During the war period a policy of regimentationwas followed, but there was no change in the organisation of the government. The Diet, Cabinet and the Privy Council continued in existence. Japan wasdefeated in the war and the Allies occupied it under the terms of the Potsdam Declaration, 1945. General MacArthur was appointed the supreme commanderof the Allies in Japan. MacAnhur was asked to work for two objectives; first, that Japan should not become in future a menace to the world peace and securityand secondly, that a peaceful and responsible government should be established in Japan. General MacAnhur abolished the army control and stopped militaryeducation in the schools. He asked Prime Minister Shidehara to prepare a new constitution in place of the Meiji13constitution. The Prime Minister was of view that there was no need for a new constitution and that the old constitution may be amended to suit the changedconditions. But he was rebuked by MacArthur for his view and ordered to prepare a new constitution. The Prime Minister Shidehara appointed a ConstitutionCommittee with Matsumoto Togi as its Chairman. Dr. Togi prepared a draft but it was rejected by the Supreme Commander as unsatisfactory. Accordingly, heasked the Government Section of his headquarters to work and quickly prepare a draft. The government Section worked swiftly and within a few weeks prepareda draft. Gen. MacArthur told the Government that it should place the draft before the people telling them that it was prepared by the Government. The Emperorissued a decree. On October 7, 1946 the draft of the constitution was passed by both the houses. On November 3, the birthday of emperor Meiji it was assentedto by the Emperor Hirohito and became effective on May 3, 1947. In the words of Maki, "It was the occupation that originated, directed, and obviously controlledthe drafting, the content, and the process of approval of the new Constitution."5 The present constitution is also called the Shova Constitution whichreplaced the Meiji constitution.References1. Forced labour for which no remuneration is paid.2. Kahin, Major Governments of Asia, p. 166.3. Ogg and Zink, Modern Foreign Governments, p. 954.4. Yanaga, Chitoshi, Japanese People and Politics, p. 137.5. Maki, John, M., "Government and Politics in Japan", p. 89.142 GENERAL FEATURES"We the Japanese people...do proclaim that sovereign power resides with the people..."The Meiji constitution remained in force from November 1890 to May 1947. On May 3, 1947 the Shova Constitution came into force. This constitution, as wenave seen in the last chapter, was prepared by the Headquarters of General MacArthur and so it was a constitution forced on the people of Japan by MacArthur.The following are the main features of the new constitution.Written ConstitutionThe Shova Constitution has been termed as the "Constitution of Japan" whereas the Meiji constitution was named as the "Constitution of the empire of Japan."Moreover, the terms "empire" and "imperial" are used less frequently than in the old Constitution. The Shova constitution consists of 11 Chapters and 103Articles. This constitution is longer by at least one-third than the old one. The constitution is not basically of Japanese origin but is essentially ofthe western origin. The new constitution has derived much from the American, British and international principles whereas the old constitution was inspiredby the German and Prussian constitutions. "The Preamble to the Constitution," Says Chitoshi Yanaga, "reminds the reader of the ideas and language of suchhistoric documents as the declaration of Independence, the Federalist papers, the Preamble to the Constitution of U.S.A., the Gettysburg Address and eventhe Atlantic Charter".1 The Constitution opens a new chapter in the history of Japan.(ii) Sovereignty of the PeopleThe Constitution vests sovereignty with the people whereas the Meiji constitution was a gift to the people. The constitution of 1947 expressly declaresthat it was the act of the Japanese people and that the emperor was the symbol of the slate and derived his powers and position from the will of the people.The Preamble reads:15"We, the Japanese people, acting through our duly elected representatives in the National Diet do proclaim that sovereign power resides with the peopleand do firmly establish this constitution. Government is a sacred trust of the people, the authority for which is derived from the people and the benefitof which are enjoyed by the people. This is a universal principle of mankind upon which this constitution is founded. We reject and revoke all constitutions,laws, Ordinances and rescripts in conflict therewith."According to the new Constitution, the emperor is authorised to perform certain "acts of state" but is specifically forbidden to exercise "power relatedto the government."In his first address from the Throne Emperor Akhito pledged "and that I shall observe the constitution of Japan and discharge my duties as ihe symbol ofthe state and of the unity of the people.' Prime Minister Kaifu conveyed people's thanks for the Emperor's pledge.(iii) Rigid ConstitutionThe Constitution of Japan is rigid, and the procedure proposed to amend it is tough. Chapter IX Article 96, describes the procedure of amendment It providesthat the amendment to the constitution can be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each house.Thereafter, they shall be submitted to the people for ratification. Amendments so ratified by the people shall be an integral part of the constitution.Under the Meiji constitution the power of initiating the amendment resided in the Emperor. But now the Diet proposes the amendment and the people ratifyit. No amendment has so far been made in the constitution.(iv) Renunciation of WarThe Constitution declares that Japan will not go to war and will not use force or give threat of force for settling international disputes. The Preamblereads, "We, the Japanese people, have determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nationsand the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government..we the Japanese people desire peace for all time and are deeply conscious of the high ideas controlling human relationship, and we have determined to preserveour security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honoured place in16an international society striving for the preservation of peace." Article 9 reads, "Aspiring sincerity to an international peace based on justice and order,the Japanese people for ever renounce war as a means of settling international disputes." Japan will not maintain land, sea and air forces. But it doesnot imply that Japan cannot use arms for its defence and security. What MacArthur had in his mind was to abolish for ever the power of Japan as a rivalto the United States in the far east. War and the threat or use of force as means of self-defence are certainly permissible.(v) Limited MonarchyThe institution of emperor is based on old traditions. Under the old constitution the emperor was the source of all authority but under the new constitutionhe is the symbol of the state and the unity of the people. The sovereignty resides with the people. The emperor is merely a constitutional head. All theacts of the emperor are to be performed "on behalf of the people" and "with the advice and approval of the cabinet." All the imperial property is the propertyof the state, with all the expenses of the household to be met from the annual Diet appropriations. He is no longer sacred but is a trustee of the people.Now the sovereignty of the Emperor has been abolished. He performs his acts according to the parliamentary conventions. Like his counterpart in Englandhe only reigns and does not rule.(vi) Parliamentary GovernmentThe new constitution of Japan establishes a parliamentary government of the British pattern. The Diet is the highest organ of the state and is the solelaw making body. The Prime Minister is appointed by the Diet and along with his cabinet is responsible to it. The cabinet has to resign or make an appealto the nation on an adverse vote or a vote of censure by the House of Representatives. The Meiji constitution had not clearly defined the responsibilityof the cabinet. Article 55 implied that the Ministers were responsible to the Emperor and not to the Diet.(vii) Unitary GovernmentThe constitution of Japan is unitary whereas that of America and India is federal. The provinces have received their powers from the centre and the devolutionof authority has been done for the efficiency of administration and not for any federative principle. The centre may at any time change these powers. Thereis only one law making organ for the whole of Japan, In a federation the powers of the federal government and the provinces are clearly demarcated andnone can encroach upon the other. But in Japan the provinces can exercise only those powers17which have been bestowed upon them by the Central Government. There is no division of powers in Japan but there is centralisation.(viii) Bicameral SystemThe Diet is the highest law making organ of the state. It has two chambers. The upper chamber is called the House of Councillors. The lower chamber is calledthe House of Representatives. The House of Councillors contains 252 members who are elected for six years; one half of whom retire after every three years.There are 512 members in the House of Representatives who are elected for four years. The money bills cannot be introduced in the House of Councillors,but it can make amendments to such bills or reject them. In case of a deadlock between the two houses if the House of Representatives passes the bill bya two-thirds majority for the second time it will become an Act Thus in legislative matters the House of Representatives enjoys primacy.(ix) End of DualismBefore the implementation of the new Constitution the Supreme War Council had brought about dualism in the operation of the executive branch. The SupremeWar Council was composed of important officers of the armed forces who were not subordinate to any civil authority. They were responsible only to the Emperor.The Emperor used to take advice from both the cabinet and the Supreme War Council. In case the advice of the Cabinet differed from the advice of the WarCouncil, the emperor accepted the advice of the War Council. The War Council was not the creation of the constitution, it was an extra-constitutional growth.The War Council had overshadowed the cabinet and this had led to the growth of military control over government. Under the new constitution this dualismhas been abolished. The military is now under the civil government and there is no possibility that in future the militarists will capture the politicalpower. Article 60 expressly states that the Prime Minister and other ministers shall be civil officers. There is no provision in the Constitution for theexercise of the military power outside the cabinet.(x) Fundamental RightsChapter III of the Constitution enumerates the various rights guaranteed to the people of Japan. The constitution declares these rights to be "eternal andinviolate." The Meiji constitution too had given some fundamental rights but they were, in fact, not rights because no court could declare an Act or thedecree of the emperor as unconstitutional. The courts did not enjoy the power of judicial review. The present constitution defines the fundamental rightselaborately. It enumerates all those rights which are generally guaranteed by the other liberal18constitutions. Of the 103 Articles of the constitution 31 articles are contained in this chapter. In this chapter all the important rights such as the rightto equality before law, abolition of discrimination, right to franchise, right to freedom of religion, press, right to education, right to assemble, etc.,are included. The Judiciary has been given the power to protect these rights.Article 97 reiterates that the Fundamental Human Rights guaranteed by the constitution "are fruits of the age-old struggle of man to be free, they havesurvived the many enacting tests for durability and are compared upon this and future generations in trust, to be held for all times inviolate."The constitution also enumerates three duties of the citizens, (i) the obligation to provide education to all boys and girls under their protection, (ii) the obligation to work and in the obligation to pay taxes.(xi) Independence of JudiciaryThe occupation authorities after the Second World War introduced several reforms in the judicial system of Japan. Article 76 declares that judicial powerbelongs to the Supreme Court. There shall not be established any administrative tribunal. Judicial powers will not be conferred on any executive organ.The Supreme Court is independent of both the executive and legislature. The constitution stipulates that the executive cannot remove the judges. They canbe removed only by impeachment. The Supreme Court is empowered to declare any ordinance, law or executive decree as unconstitutional in case it violatesthe spirit of the constitution. Thus like the American Supreme Court the Supreme Court of Japan enjoys the power of Judicial review. Under the Meiji constitutionthe Court did not have the power of judicial review. It was subordinate to the emperor and could not declare his orders or laws unconstitutional.(xii) Adult SuffrageThe new constitution of Japan provides for adult suffrage. The Meiji constitution did not make a provision for it. Before the war period the suffrage waslimited to men of 25 years of age or above provided they paid at least 10 Yen annually in direct taxes. The new constitution removes all such conditionsand all men and women of the age of 20 years or above enjoy the right to vote. There is no property qualification. Now women in Japan enjoy equal rights.(xiii) Supreme LawChapter X of the constitution declares that constitution is the supreme law of the land. In Article 97 it has been stated that there shall be no19violation of the Fundamental rights guaranteed to the citizens. Article 90 provides, 'This constitution shall be the supreme law of the nation and no law,ordinance, imperial rescript or other act of government or part thereof, contrary to the provisions hereof, shall have legal force or validity." Article99 states, "The Emperor or the Regent as well as Ministers of state, members of the Diet, Judges and all other public officials have the obligation torespect and uphold the constitution."(xiv) Local AutonomyFinally, the constitution introduces the principle of local autonomy, Article 93 provides that the "local public entities shall establish assemblies astheir deliberative organs", and that "the Chief executive officers of all local public entities, the members of their assemblies, and such other officialsas may be determined by law shall be elected by direct popular vote within their several communities" The local autonomy Act, 1947 provides for the exerciseof initiative and recall by the voters of local entities. The prefectures and city, town and village municipalities have been granted extensive powersof local government.To conclude, the new constitution of Japan is a political statement of the values which were selected to guide post-war reconstruction abolition of militarism,revival of democratic institutions and a respect for basic human rights. It is more liberal and democratic than the Meiji constitution. The sovereigntyof the Emperor has been abolished and in place thereof the legislature has been declared sovereign. The fundamental rights of the people are justiciable.The Supreme Court has the power of Judicial review. The most revolutionary part of the constitution is Chapter II wherein Japan has renounced war. In thisconstitution an attempt has been made to blend the presidential system of the United States with the parliamentary system of Great Britain; but it hasborrowed more elements from the British system. The Allied powers considered the British pattern more suitable to Japan.The vision of those who drafted the Constitution of Japan and the sense of continuity of those who have implemented it is apparent from the fact that therehas not been a single constitutional amendment in 48 years, whereas the Indian Constitution has been amended more than 75 times in a lesser period of 43years.Reference1. Yanaga, Chitoshi, 'Japanese People and Politics,' p. 125. 203 FUNDAMENTAL RIGHTS"The idealism visible in our new institutions is not executed in practice." —Prof. KenzoAlthough the Meiji Constitution had given rights to the people but they were not real. The Emperor could impose restrictions on their enjoyment and thejudiciary had no power to declare his decrees unconstitutional even if these violated the rights of the people. As a matter of fact, the rights given bythe Meiji Constitution were not rights as they were not constitutionally safeguarded. The present constitution elaborately enunciates these rights anddeclares them justiciable. The fundamental rights have been described in Chapter III of the constitution. Out of a total of 103 Articles, 31 Articles areconcerned with the fundamental rights. It is probably one of the world's most detailed and ambitious constitutional statements. It is more elaborate anddefinite than the American Bill of Rights. After having read these rights no one can fail to appreciate the liberal and democratic aspects of the constitution.This portion of the constitution is the crux of the new political system of Japan.Kinds of RightsThe following rights have been guaranteed to the people by the constitution of Japan:1. Right to EqualityUnder this right the following rights are included: (i) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex,social status or family origin, (ii) Peers and peerage shall not be recognised.21(iii) No honour, decoration or any distinction shall be valid beyond the life time of the individual who holds it (Art 14).(iv) Marriage shall be based only on the mutual consent of both sexes. With regard to the choice of spouse, property rights, inheritance, choice of domicile,divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of the essential equality of the sexes (Art.24).2. Right to freedomThe following rights are included under this right (i) Freedom of thought and conscience shall not be violated (Art. 19). (ii) No Person shall be held in bondage of any kind. Involuntary servitude, except as punishment for crime is, prohibited (Art.18). (iii) The people have the inalienable right to choose their public officials and to dismiss them. All public officials are servants of the whole communityand not any group thereof. Universal adult suffrage is guaranteed with regard to the election of public officials. In all elections secrecy of the ballotshall not be violated. A voter shall not be answerable, publicly or privately, for the choice he has made (Art 15). (iv) Every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials for the enactment, repeal, amendmentof laws, ordinances, or regulations and for the other matters, nor shall persons be in any way discriminated against for sponsoring such a petition (Art.16). (v) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed (Art 21). No censorship shall be maintained,nor shall be secrecy of any means of communication be violated. (vi) Everyone shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the publicwelfare (Art. 22). Freedom of all persons to move to foreign country and to divest themselves of their nationality shall be inviolate. (vii) No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to the procedure established bylaw (Art 31).22(viii) No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offence which the person is charged(Art. 33).(ix) No person shall be arrested or detained without being at once informed of the charge against him or without immediate privilege of counsel nor shallbe detained without adequate cause and upon demand of any person such cause must be immediately shown in open in his presence and the presence of his counsel(Art. 34).(x) The right of all persons to be secure in their homes, papers and effects against enquiries, searches and seizures shall not be impaired except uponwarrant issued for adequate cause and particularly describing the place to be searched and things to be seized or except as provided by article 33. Eachsearch and seizure shall be made upon separate warrant issued by a competent Judicial Officer (Art. 36). (xi) The infliction of torture by any public office and cruel punishments are absolutely forbidden (Art. 36).3. Economic RightsThe constitution of Japan has also recognised some economic rights. These rights are the following:(i) All people shall have the right and the obligation to work. Standards for wages, hours, rest and other conditions shall be fixed by law. Children shallnot be exploited (Art. 27). (ii) The right to organise and bargain and act collectively is guaranteed. (Art. 28). (iii) All people shall have the right to maintain the minimum standards of wholesome and culture living. (iv) In all spheres of life the state shall use its endeavour for the promotion and extension of social welfare and security of public health (Art. 25).4. The Right to propertyThe right to own or to hold property is inviolable. Property rights shall be defined by law, in conformity with the public welfare.Private property may be taken for public use upon just compensation therefore (Art. 29)5. The Right to Freedom of ReligionThe right is guaranteed to all. No religious organisation shall receive any privilege from the state, nor exercise any political authority.23No person shall be compelled to take part in religious act, celebration, rite or practice.The state and its organs shall refrain from religious education or any religious activity (Art. 20).6. The Right to EducationAll people shall have the right to receive equal education corresponding to their ability as provided by law.All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided by law. Such compulsory educationshall be free (Art. 26).7. Right to Constitutional RemediesThe following rights are included:(i) Any person, in case he is acquitted after he has been arrested or detained, may sue the State for redress as provided by law (Art. 40).(ii) Every person shall have the right to peaceful petition for redress of damage, for the removal of public officials, for enactment, repeal or amendmentof laws, ordinance or regulations and for other matters nor shall any person be in any way discriminated against the sponsoring of such a petition (Art16).(iii) Every person may sue for redress as provided by law from the state or a public entity, in case he has suffered damage through illegal act of any publicofficial (Art. 17).An EvaluationFrom the above enumeration-of the fundamental rights provided in the Constitution of Japan it is evident that the list of these rights is sufficiently exhaustive.Some of the rights, for example, the right to work (Art. 27), the right to minimum standard of living (Art. 25), the right to education (Art. 26) are guaranteedin a few constitutions only. The Japanese Constitution gives all those rights which are given in democratic countries. Thus the people of Japan enjoy thefreedom of expression, thought, conscience, assembly, religion, association, speech, press, residence, movement, profession, education and nationality.In addition, they possess rights against exploitation. They cannot be compelled to give evidence against themselves. They have a right of defence througha lawyer. They cannot be arrested without being informed of the crime. They have a right to get compensation for any loss. They can make petitions againstthe unjust acts of the public officials. They can get a writ of Habeas corpus against wrong24confinement Thus the Japanese Constitution gives to the citizens all the civil and political rights. They never enjoyed these rights before. The acquisitionof these rights had added to the dignity of the Japanese citizen and given him an honourable place in society.All the privileges of the feudal age have been abolished. Rule of Law prevails in Japan. All the people are equal before law. All have an equal right toseek protection from the judiciary. The state will not make any discrimination on the basis of sex, birth, caste or race. The women have been given equalrights. The peerage has been abolished.Japan is a secular state. The people have the right of freedom of religion and conscience. They will not be compelled to take part in any religious ceremony.The state will not impart religious education. The state will not show any special favours to any religion.The Constitution of Japan has fully recognised the Rule of Law. Article 97 states that the fundamental human rights guaranteed by this constitution to thepeople of Japan are for all time inviolable. No administrative tribunal will be set up. The judges will have full freedom during their tenure. All areequal before the law and all are answerable before the same courts. It may also be emphasised that the language of these rights is clear and unambiguous.Prof. Robert E. Ward holds the view that the fundamental rights guaranteed in Part III are so aspiring that for a long time they may be mere pious wishesand may not be realised as social or legal truths. Chitoshi Yanaga writes, "As a legacy of the long authoritarian tradition the populace still betray afear of officials and there is a general reluctance on the part of the individuals to challenge administrative actions or even question the wisdom of executivejudgements."1 Prof. Andrath W. Burks writes that from the cases sent to the civil liberties department of Ministry of Justice it is clear that there hasbeen an increase in the misuse of authority by the public officials and in the number of cases of physical violence.2 Prof. Kenzo and Prof. Sokae alsowrite "The idealism visible in our new institutions is not executed in practice."3 The police misbehaves with the people who are subjected to physicaltortures for confessing their crime.It appears that the rights which the constitution has given to the Japanese are not available to them in practice. The Supreme Court has not been liberalin their evaluation and it seems hesitant to declare the government laws and decrees unconstitutional. Many a limitation imposed by the government on therights of the people in the name of public welfare have been held valid by the court. Maki writes,25"Although the majority of Japanese constitutional scholars have been either adversely critical of such "public welfare" decisions or are fearful of theirconsequences, the fact remains that there has been no serious erosion of any constitutionally guaranteed freedom through legislation, executive or judicialaction."4 Having secured these rights the Japanese are busy in promoting their personality and making their life happy and prosperous.DutiesThe Japanese Constitution has also mentioned some duties of the individual. These duties include: refraining from the abuse of any freedom or right (Article12) utilise their rights for the public welfare (Article 13); the obligation to work (Article 27); liability to taxation (Article 30); and the obligationof all people to have all boys and girls under their protection receive ordinary education as provided by law (Article 26).For the successful functioning of democracy it is imperative that the citizens must be reminded of their constitutional obligations.References1. Yanaga, Chitoshi, op. tit., p. 551.2. Burks, Adrath, W., The Government of Japan, p. 196.3. Kenzo and Sokae, The New Japan, Government and Politics, p. 154.4. Maki, John M, The Government and Politics in Japan, p. 91.264 THE JAPANESE EXECUTIVE"The Emperor is the spiritual anchor, the moral rudder and the political gyroscope that ensures the safety and steadiness of the course of the ship of thestate."-Chitoshi YanagaThe EmperorThe monarchy is the oldest institution in Japan. Chitoshi Yanaga writes, "The Emperor has been and still is the living symbol of the nation's history, heritageand achievements, of all that is glorious in the nation's past and present, of its continuity and durability. He is the incarnation of history and religion.In his person are epitomised the nation's hopes, aspirations and promises. He is the spiritual anchor, the moral rudder and the political gyroscope thatensures safety and steadiness of the course of the ship of State. As a symbol he is enshrined in the hearts of the people who attribute everything goodto his virtue."1 His person was considered sacred and inviolate. He was pictured as heaven-descended and divine. The people were forbidden to make of hima topic of discussion in the lanes. The Meiji constitution conferred sovereignty upon him. He was the head of the Empire and the source of all authority.But, as we have studied earlier, his powers were exercised by his ministers or councillors or the Supreme War Council. The latter belonged to the noblefamily who exercised the Emperor's powers for promoting their interests. Before 1945, the military leadership was supreme in Japan. The Emperor at thattime was only a figure head the real powers being exercised by his ministers or councillors. The emperor had little say in the formulation of high policiesor direction of state affairs. He was the symbol of state.The constitution of 1947 recognised this position of the Emperor and gave to it a constitutional recognition. What was actual formerly27now became a fact in theory also. The dualism was abolished and the real powers were conferred on the Diet. The cabinet was made responsible to it The constitutionmakers 'humanized' the person of the Emperor; formerly his person was regarded as divine and inviolate. Now the sovereignty belongs to the people and notto the Emperor. He is the constitutional head of the state and is no longer its autocratic ruler.Succession to the ThroneArticle 2 of the Constitution declares that the Imperial throne shall be dynastic and be succeeded in accordance with the Imperial House Law enacted bythe Diet. Under the Meiji constitution Diet could not make amendments to the Imperial House Law. It could be amended only by the Emperor with the adviceof the Royal Council and Privy Council. The 1947 Constitution has changed the system. Now the Diet is empowered to amend the Imperial House Law. Consequently,in 1947 the Diet amended the Law. Now under the law the Imperial Throne will be succeeded by a male offspring in the main line belonging to the Imperiallineage. Primogeniture is the rule with the succession running through the main line. No adoption is permitted. A regency is established in case the Emperorhas not come of the age (18 years). If there is no member of the Imperial family in the main line of succession, the throne is passed to the member ofthe Imperial Family next nearest in lineage, precedence being given to the senior member in the senior line. The throne has not so far gone to the otherdynasty. In no other country, not even in England, has the throne been possessed by a dynasty for so long a time.Powers of the EmperorDuring the Meiji period, the emperor was the head of the Empire and all the powers were concentrated in his hands. All the legislative and executive powersbelonged to him. On the basis of these powers he ran the government of the country. The Diet at the time used to merely record his wishes. It was not sovereignas the British Parliament is. The Emperor was the epicenter of the government The Meiji constitution had bestowed divinity on him and he was made to lookas a divine person. However, although the Meiji constitution had given to him wide powers, yet he did not exercise them. His position was like the BritishKing who reigns but does not govern.After the second world war ended there were two different views on the question of retaining the monarchy. Some held that the monarchy be retained but itspowers be limited. Others held that office of the Emperor be abolished for establishing a peaceful and democratic28government in the country because it had promoted militarism and imperialism. Ultimately it was agreed that the office be retained but the powers of theEmperor should be limited. Consequently, under the new constitution he was deprived of his powers and made a nominal head of the nation. He was to actin accordance with the advice of the cabinet. Another change that was made regarding his position was that all his private property was declared to bethe property of the State and his expenses were appropriated annually by the vote of the Diet.Article 1 of the 1947 Constitution declares that the emperor shall be the symbol of the state and shall derive his powers from the people because sovereigntyresides with them. The Emperor will perform all his acts on the advice and approval of the cabinet. The following powers of the Emperor have been enumeratedin the Constitution:(1) Executive PowersThese are the following:(i) The Emperor appoints the Prime Minister as designated by the Diet. (ii) He attests the appointment and dismissal of Ministers of the State and other officials as provided for by law. (iii) He also attests the full powers and credentials of ambassadors and Ministers. (iv) The Emperor is the fountain of honour and as such awards honours. (v) He attests the instruments of ratification and other diplomatic documents as provided for by law. (vi) He receives foreign ambassadors and Ministers accredited to Japan.(2) Legislative PowersThese are the following:(i) All the national laws, constitutional amendments, cabinet orders and treaties are promulgated by the Emperor. (ii) He convenes the sessions of the Diet. (iii) He dissolves the House of Representatives after the expiry of its term or on the recommendation of the Prime Minister. (iv) He issues a proclamation of general election of members of the Diet.(3) Judicial PowersThese are the following:(i) The Emperor attests general and special amnesty, commutation of punishment, reprieve, and restoration of rights.29(ii) He appoints the Chief Judge of Supreme Court as designated by the cabinet.The Position of the EmperorAfter a careful study of the powers of the Emperor one comes to the conclusion that his powers are merely formal and that he is the titular head of thenation. The first chapter of the constitution relates to the Emperor and it clearly mentions that the emperor is the symbol of the state, of the unityof the people and deriving his powers from the will of the people with whom resides sovereign power. Whatever functions the Emperor performs, he performsthem on the advice of the cabinet He does not possess any privileges. The taboos which surrounded his position have been removed. The 1889 constitutionhad declared him to be sacred and inviolate. He was an absolute ruler. He could take decisions himself. The Diet and cabinet were advisory institutions.But now his absolutism is over. Not only in theory but in practice too his sovereignty has been abolished.The Emperor of Japan is no longer the real head of the State, but is only a constitutional head. Sovereignty is with the people. The emperor acts on theadvice of the cabinet and the cabinet is responsible to the Diet. In the sphere of administration the Emperor enjoys no authority. All the administrativeauthority vests in the cabinet. He makes appointment, summons the Diet, dissolves the House of Representatives, confers titles and honours and promulgatesdecrees and laws on the advice of the cabinet. He has to take the advice of the cabinet even in this ceremonial functions. Treaties are not concluded inhis name. He simply promulgates them. In short, the new Constitution has weakened his position to the extent that without the assent of the Diet he cannotgive away any property, nor receive it, nor can he accept any gifts. The Imperial expenditure also is to be approved by the Diet. To speak the truth theEmperor reigns but does not govern.In comparison to the British King the powers of the Emperor of Japan are insignificant. The King can use his discretion in the appointment of the PrimeMinister but the Emperor of Japan cannot exercise his discretion. He has to appoint the person nominated by the Diet as the Prime Minister. He cannot exerciseany influence in the dissolution of the House of Representatives. The cabinet takes decision in this respect and he has to abide by this decision. TheEmperor cannot veto the bills nor can he return them to the Diet. He simply promulgates the laws passed by the Diet. The treaties are not concluded inhis name. He simply promulgates them. He does not even have the right to be30consulted, the right to encourage and the right to warn - the three important rights possessed by the British King. He does not influence the decisionsof the cabinet He does not even act as a mediator to settle the political conflicts as the British monarch has done on many occasions. The Constitutioninsists that the Emperor should not take interest in politics and express any forming of public opinion. The emperor of Japan is not the Supreme Commanderof the armed forces because Japan has renunciated war. He does not exercsise influence on the foreign policy of the country. Thus compared to the BritishKing his powers are almost a cypher.Prof. Mobutka Ike writes, "The constitutional position of the Emperor has changed considerably in the post-war period. He is no longer the source of allauthority, political and moral; he has been reduced to a symbol and sovereignty is now deemed to lie in the people. He has certain ceremonial functionsunder the Constitution but he has no powers related to government"2 Prof. Chitoshi Yanaga writes, "Under the new post-war constitution which became effectivein 1947, the emperor is no longer the Chief of the state or the representative of the nation. He has become merely the symbol of the state and the unityof the people in whom sovereignty now resides. This means in effect that legally if the majority of people so desire, the institution of the Emperor canbe abolished. He no longer possesses any power of government for he has ceased to be the fountain head of power which he was formerly. He performs onlysuch acts in matters of state as are provided for in the Constitution but he must secure the advice and approval of the cabinet. For these acts which heperforms neither the cabinet nor he is responsible."3But it does not mean that Emperor has lost his importance and honour. In Japan royal family is the oldest family. The Japanese people adore their Emperor.He still enjoys the confidence of his subjects. The people regard him as sacred and the source of inspiration. He is the living symbol of the unity andstrength of the nation. The people honour him and they owe allegiance to him. According to a U.N. survey 74 per cent population of the post-war Japan stillhold it firmly that the Emperor is the symbol of the nation not only in theory but in the hearts and minds of the people. The Emperor has gained ratherthan lost in respect. Before 1946 the people could not see him, they were required to bow their heads and not to look at his personage when he passed by.He now mixes with the people, shakes hands with them and receives their respects. Newspapers and magazines print the matters relating to his31daily life and stories are told of how the Emperor had reduced his standard of living and simplified his daily life in order to share hardships with hissubjects. The Imperial family is moving closer and closer to the people day by day. Prince Akihito, the present Emperor married the daughter of an ordinarybusiness man Michiko Shoda.The 1947 Constitution has humanised and democratised the institution of Emperor. Previously the emperor was considered divine. He cannot now claim thathe is the 'God on Earth'. He has given to himself the form of a common man. His acts can now be criticised and he can be a topic of discussion and writing.As a result of the humanisation of the Emperor he has won greater honour and allegiance of the people than before. The Constitution may not have declaredhis person 'sacred and inviolable.' But the attitude of reverence towards him continues much in the same manner as before. He was and still is the mostpowerful symbol of the unity and solidarity of the Japanese nation. He provides a focus for patriotism. According to Ogg and Zink, "What the constitutionmakers could not take away were the emperor's moral assets - his symbolical position as titular head of the state, his prestige rooted in centuries oftradition, his hold upon the affections and instinctive loyalties of the people."4 Chitoshi Yanaga has remarked, "He is the spiritual anchor, the moralrudder and the political gyroscope that insure the safety and steadiness of the course of the ship of the State."3 Really he is the rallying point of thenation and majority of the Japanese people do realise that there is a necessity of a dignified and detached person heading the state as its constitutionalruler. The Cabinet of JapanBrief HistoryThe first cabinet in Japan was formed in 1885 by an Imperial ordinance. There were nine departments in this cabinet and Ito was the first Prime Minister.In 1889 when the Meiji Constitution was promulgated, it did not make any mention of the cabinet but the Ministers of State were mentioned therein. Article55 stated that there would be "Ministers of State" who were "to give advice to the Emperor and be responsible for it." But since this constitution didmention the Ministers who were also responsible, so it may be said that the constitution established a sort of cabinet though it did not expressly mentionit. In the Constitution of the United States and England also there is nowhere the mention of the term "Cabinet". It is an extra-constitutional institutionand it is in this form that it evolved in Japan.32Under the 1889 Constitution, the Prime Minister was appointed by the Emperor. The other Ministers were appointed by the Prime Minister in consultation withthe Emperor. By the second decade of the present century, the emperor began summoning the leader of the majority party in the Diet to be the Prime Minister.The Prime Minister was not bound to select his Ministers from his own political party. Besides the multiplicity of the political parties, there were otherconsiderations, which weighed heavily with the Prime Minister in making his choice. He had to accommodate members of the oligarchy, military class, theImperial family and other influencial class. There was no limit regarding the size of the cabinet It used to be generally big. Due to its size being bigand due to the inclusion of the representatives of the various groups, the cabinet was generally weak which had to work under various pressures and influences.Mobutka Ike writes, "The power of the pre-war cabinet, therefore, was greatly circumscribed both in theory and practice." During the period 1889 to 1945,forty-one cabinets were formed in Japan of which twenty-one were dissolved on account of internal differences.There was, under the old Constitution, a cabinet but not the cabinet-system. Under the constitution of 1947, the cabinet-system is markedly different fromits predecessor. The new Constitution explicitly recognises it Chapter V and articles 65-75 are related to the cabinet. Article 65 states that the executivepower shall be vested in the cabinet. Article 66 states: "The cabinet shall consist of the Prime Minister who shall be its head and other ministers ofstate, as provided for by law." Thus the new Constitution incorporates all the basic principles of the cabinet system. The cabinet is collectively responsibleto the Diet (Art. 66).The cabinet must resign on a no-confidence motion being passed by the Diet. Thus, now the cabinet is an organised unit which works on parliamentary linesunder the leadership of the Prime Minister. It is the highest organ of the Executive anisation of the CabinetThe Prime Minister is the nerve-centre of the cabinet, hence he is appointed first of all. He is elected by both the Houses of Diet, voting separately.Generally, the leader of the majority party in the House of Representatives is elected by the Diet. The election is held soon after the election of theDiet, when it meets in its first session. In case of disagreement between the House of Councillors and House of Representatives regarding the electionof the Prime Minister, the issue33is submitted to a joint committee of both the Houses. If the joint committee fails to arrive at an agreement or the House of Councillors fails to make thedesignation within ten days after the House of Representatives has made the designation, the decision of the House of Representatives will be considereddecisive and final. In Japan, the Prime Minister is not just the choice of the majority party; he is elected by the whole House. After every general electionhe has to contest the election in the Diet whether or not the polling returns his party in majority.Article 66 states that the Prime Minister should be a member of the Diet and other ministers shall be civilians. After the Diet has elected the Prime Minister,he is formally appointed by the Emperor. The Prime Minister appoints other ministers who are also the members of the cabinet and the majority of the ministersbelong to the lower House.The formation of the cabinet is a complicated and difficult task. In order to serve the Prime Minister has to appease the various ginger, splinter groupsand dissidents. After a tedious and long process only he is able to select his ministers.The size of the Cabinet varies from time to time, but usually 16 ministers of state are appointed. All ministers are technically of equal rank and status.In practice, however, only twelve hold portfolios and head the various Ministries. Ministers without Portfolios do not hold charge of Ministries and areas a matter of distinction designated State Ministers.After appointing and allotting the various portfolios to the ministers, the Prime Minister presents them to the Emperor at an attestation ceremony in theImperial Palace. The average life of the cabinet is little more than 10 months.Functions of the CabinetThe Prime Minister representing the cabinet, submits bills, reports on the general national affairs and foreign relations to the Diet and exercises controland supervision over various administrative departments. The following are the main functions of the cabinet. (i) It takes important political decisions and formulates the policy of the Government. (ii) Submits bills to the Diet. (iii) Submits budget to the Diet for each fiscal year. (iv) Manages foreign affairs, negotiations and concludes treaties. (v) Reports on general national affairs and foreign relations to the Diet. 34(vi) Administers the civil service. (vii) Convokes the House of Councillors in emergency session when the House of Representatives has been dissolved. (viii) Affixes signatures on all laws and cabinet-orders. (ix) Reports at regular intervals and at least once a year to the Diet and people on the state of national finance. (x) Advises the convocation of the Diet. (xi) Issues cabinet orders to execute the provisions of the Constitution of the law. (xii) Exercises control and supervision over various administratives branches.(xiii) Advises the dissolution of the House of representatives. (xiv) Administers the law faithfully and conducts affairs of state. (xv) Submits to the Diet, final accounts of expenditures and revenues along with the statement of Audit prepared by the Board of Audit. (xvi) Decides on general amnesty, special amnesty, commutation of punishment, reprieve and restoration of rights. (xvii) Designates the Chief Judge of Supreme Court and appoints all other judges. (xviii) Advises proclamation of general election of the members of the Diet. (xix) Makes payments from the reserve fund in the budget forunforeseen deficiencies and gets subsequent Diet-approval. Article 74 of the Constitution states that all laws and orders shall be signed by the competentMinister of State and countersigned by the Prime Minister. Article 75 states that the ministers of state, during their tenure of office, shall not be subjectto legal action without the consent of the Prime Minister.From a study of the powers and functions of the cabinet it may be calculated that Japan has a cabinet type of government Under the Meiji Constitution, thecabinet was not responsible to the Diet, whereas under the present constitution it is so responsible for all its actions.Nature of the CabinetThe cabinet consists of two types of ministers - those holding the portfolios and those who do not hold any portfolio. The most important portfolios are:Home Education, Finance, Justice, Agriculture, Forests, International Trade, Industries, Transport, Posts and Telegraph. The ministers without portfoliosare allotted some important administrative functions. Every minister is assisted by three vice-ministers.35There is a Director of the Cabinet Secretariat to look after the routine affairs of the cabinet. There are two Deputy Directors to assist the Director.The Cabinet Secretariat prepares the agenda for the cabinet meetings and keeps records of the relevant papers and decisions.The cabinet meetings are held at the official residence of the Prime Minister-I-Nagata-Cho. Ordinarily the cabinet meets twice a week on Tuesday and Fridayin camera. The Prime Minister presides over the meetings. There is no quorum fixed. The decisions are arrived at by unanimous vote. No record is kept ofthe proceedings of the cabinet -but once the decision has been taken, all the ministers have to sign it. If a member does not sign the decision, he mustresign otherwise the Prime Minister will remove him. The ministers cannot divulge what transpired in the cabinet meeting, yet leaks to the press are notentirely unknown.About the role of the cabinet, it may be said that it is the central directing instrument of government in administration and in legislation. It has thesupreme control of the national executive. It maintains coordination among the various departments of administration. In short, it governs the country.To a considerable degree, it determines the policy to be placed before the Diet, submits the legislative proposals and runs the administration of the country.Thus, it makes important decisions in regard to national affairs and comes closer to the cabinet of Great Britain. Referring to the spectacular rise ofthe cabinet under the new Constitution from its humble position under the Meiji Constitution, Quigley and Turner observe that it recalls the Biblical prophecythat "the last shall be the first."As in India, so in Japan, the politicians spend much of their time and energy competing for ministerial berths with the result that bureaucracy has acquireda dominating position in the decision-making process. Factionalism within the ruling party leads to frequent cabinet reshuffles. The pressure on the PrimeMinister are so strong that frequent cabinet changes are almost the necessary political price for his own continuance in power. That is why the averagelife of the Cabinet in Japan is a little more than ten months. Paradoxical as it may seem, Prime Ministers have been more durable than cabinets.There are two important points of difference between the Japanese cabinet system and the British system. Firstly, in Japan all the Ministers (even thosewithout portfolios) are cabinet Ministers and they attend cabinet meetings in their own right. In Great Britain, on the other hand, only the Cabinet Ministers(that is, Ministers who hold important36portfolios) attend Cabinet Meetings. Others may attend only on a note of request from the Prime Minister. Secondly, whereas in Great Britain Cabinet decidesby majority, in Japan cabinet-decisions are unanimous. If a minister does not agree with the Cabinet decision, he must resign or else may be dismissedby the Prime Minister.The Prime Minister of JapanAppointmentIt is the fundamental principle of the cabinet-government that the cabinet must have the support of the majority in the representative house of the legislature.In this form of government, the leader of the majority party is summoned by the head of the state to form the ministry and only that person is appointedthe Prime Minister who commands majority. The head of the state has little choice in the matter.In Japan, the Prime Minister is the constitutional creation. Article 6 specifically provides that the Emperor shall appoint the Prime Minister as designatedby the Diet. He is elected by the Diet. In case of a deadlock between the two Houses, a joint committee is appointed to resolve the deadlock. If the JointCommittee fails to reach an agreement, the decision of the House of Representatives finally prevails after ten days. The Emperor issues a formal appointment-letterto the person so elected.Thus, the procedure of appointing the Prime Minister in Japan differs from that in Great Britain and India. In these countries, the leader of the majorityparty is invariably summoned for Prime Ministership but in Japan he is elected by the Diet. The Emperor gives only a formal approval. The election of thePrime Minister by the Diet gives birth to sharp political activities and sometimes bitterness and rivalry are also created.After July 1993 General Elections Mr. Morihiro Hozokawa formed a seven-party coalition government with the Liberal Democratic Party in the opposition. Buthe had soon to quit office in the aftermath of the political reforms Bills and his agreement with Mr. Yohei Kono, leader of the opposition Liberal DemocraticParty watering down the Bills. Thereafter Tsutomu Hata became the Prime Minister of Japan who tendered his resignation in June 25, 1994 along with hisminority government. In his parting message he remarked that he would leave it to parliament to decide who shall form the next administration and thathe would prefer not to call snap elections and create a political vacuum.3A Tomichi Murayama was elected by the Diet as the next Prime Minister. A no-confidencemotion against him was moved on37June 13, 1995 which he however survived by 290-189 votes. Thus within a period of two years after the 1993 elections, Japan has had three Prime Ministersand stepped down on July 13, 1998 to be replaced on July 30 by Keizo Obuchi - newly elected President of Liberal Democratic Party. On July 13, 1998 KeizoObuchi was endorsed as Japan Prime Minister by the House of Representative Lower House bagging 268 out of 494 valid votes.Functions of the Prime MinisterThe Prime Minister is the keystone of the government. He performs many functions and enjoys wide powers. Although his powers are not so vast as that ofthe Prime Minister in Great Britain and India, yet he has important powers. He performs the following functions: (i) He constitutes the government. Withthe appointment of the Prime Minister, the work of the Diet and the Emperor in constituting the government is completed and it now rests with the PrimeMinister to complete his list of ministers and present it to the Emperor for his attestation.(ii) Article 68 states that the Prime Minister can remove the ministers. He can reshuffle his cabinet, whenever he likes. He has full control over the cabinet.(iii) The Prime Minister is the chairman of the cabinet. The ministers have to abide by the wishes of the Prime Minister. He has the right to supervisethe work of the various ministries and maintain co-ordination among them. In case of a disagreement between the different departments, he acts as the arbitrator.He can reject or accept any proposal of a minister. No legal action can be taken against ministers, during their tenure of office, without the consentof the Prime Minister.(iv) He is the leader of the Diet in general, and the House of Representatives in particular. He makes all important policy-announcements. He comes to therescue of his ministers by intervening in debates of general importance.(v) The Prime Minister makes appointments to all the important offices. While making appointments he consults his colleagues, but his choice is final.(vi) He countersigns all the decrees of the cabinet and laws. (vii) He fixes the dates for the election of the Diet and its session. He concludes international agreements.(viii) He may suspend any departmental order till the cabinet considers it.38(ix) He gives necessary approval for any legal action being taken against the Minister of State.Position of the Prime MinisterThe office of the Prime Minister in Japan is the creation of the Constitution and not the result of conventions. The office of the British Prime Ministeris based on convention. The Prime Minister of Japan is 'Supra intra pares' (Superior among equals). In fact he is the executive authority of the Stateand his powers are so vast that any other constitutional ruler can hardly compete with him. Even the President of the United States is not so powerful.With the abolition of the Privy Council, the Supreme War Council, etc. his powers have increased manifold because before the new constitution these organsshared power with him. In comparison to the Emperor and the Ministers, his powers are very wide. The Prime Minister is not subordinate to any executiveauthority. He is fully independent in his functions.The position of the Prime Minister may be summarised under these heads:(i) As a Boss of CabinetThe Prime Minister in Japan is the master of the cabinet. As told earlier, he appoints the Ministers, distributes portfolios among them, and can shufflethem anyway. In the appointment of the ministers, his authority is in no way limited. The attestation of Emperor is merely formal. The Prime Minister canany time remove his ministers. In July, 1951 Prime Minister Yoshida asked all his ministers to resjgn and reconstituted his cabinet. During 1957-1966 bothMr. Kishi and Mr. Ikeda so reconstituted their cabinets that they were almost new cabinets. In July 1961 Dr. Ikeda removed ten out of his sixteen ministers.In December 1966 Mr. Sato reconstituted his cabinet. In 1953 Prime Minister Yoshida removed Mr. Hirokawa. Thus the Prime Minister of Japan has actuallyused his power of removing his ministers or asking resignations from them.Besides, as we know the Prime Minister is the chairman of the cabinet. He presides over its meetings. He settles the disputes of the different departments.He supervises their work and can suspend their orders. The proceedings of the cabinet are kept secret. Without his approval no legal action can be takenagainst a minister. When he resigns, the entire cabinet resigns. As the chairman of the cabinet he maintains strict control over its members. As its representative,he informs the Diet of the national matters and foreign relations. In short,39"if the cabinet be compared to a board of directors or an executive committee, he is its powerful chairman. As head of the cabinet, he represents the executivebody internally and externally".(ii) As Leader of the DietThe Prime Minister is elected by the Diet and he can hold his office only so long as he enjoys the confidence of the House of Representatives. He submitsreports to the Diet on national and foreign matters. As its leader, he guides the proceedings of the House and makes all important announcements.In a way it may be said that the Diet is the biggest organ because the cabinet is responsible to it, but in reality the Prime Minister provides life andleadership to the Diet. If the House of Representatives acts contrary to his wishes, he may advise the Emperor its dissolution. In 1953, when the Houseof Representatives passed a no-confidence motion against Prime Minister Yoshida, he at once got the House dissolved. After the General Election, he wasagain elected the Prime Minister. Thus we see that the leadership of the Prime Minister in the Diet is established and he can compel it to act accordingto his wishes. It may also be noted that the Prime Minister often enjoys the support of the majority party in the Diet. A minority or coalition governmentis an exception.(iii) As Leader of the NationThe Prime Minister is the leader and the representative of the nation. He holds the reins of the administration of the country. He acts as a link betweenthe Emperor and the people. He holds the most powerful office in the government. The people look to him for the redress of their grievances. The SupremeWar Council and the Privy Council, which were rivals to him before 1945, have been abolished. He is now the master of the country's administration. Herepresents his country in international conferences. He makes commitments on behalf of the nation and concludes treaties. The economic and social progressof the country depends very much on his personality and virtues.Thus the Prime Minister of Japan, if not an absolute ruler, is certainly the most powerful of all the executive officials. He is the actual weider of theauthority of the Emperor. He may be called the "corner-stone of the cabinet-arch". According to Linebarger and others, "Although the Premier is considerablyless powerful than his wartime predecessor was in terms of his strength against the wishes of the Diet, he is on the other hand considerably more powerfulin terms of his independence of any other executive Officials." He is not 'primus intra40pares', but "Supra intra pares." In his powers and influence no other official of Japan equals him. He controls the birth, life and death of the cabinet;he has wide influence over the Diet. Besides, he enjoys great prestige and honour. Such a person should naturally be Persona Grata with all the qualitiesof leadership.It may also be mentioned that during the past few years the position and prestige of the Japanese Prime Minister have suffered a decline. The Liberal DemocraticParty stands discredited due to several scandals including Lockheed bribery scandal, securities scandal and recruit scandal. It is identified as the partyof "money-politics". Prime Minister Noboru Takeshita had to apologise to the nation for collecting 200 million yen in political funds and donations andresigned on April 25, 1989. To make matters worse, there came up the issue of Sousuke Uno's involvement with a geisha. The Liberal Democratic Party lookedfrantically for a leader to stem the rot and put the party back on rails. Toshiki Kaifu, came forth to clean politics of its dirt and filth. General Electionwas held in February 1990, and Kaifu became the Prime Minister. But in the July 1993 elections, the party lost its majority. There have been three PrimeMinisters after the 1993 elections during a period of last two years - (June 1995) which may ultimately soon lead Japan to another General Election.References1. Yanaga, Chitoshi, op. cit., p. 129.2. Kahin, T. "Major Governments of Asia", p. 188.3. Yanaga, Chitoshi, op. cit., p. 140. 3A. Hindustan Times, dated June 26, 1994. 3B. Ibid., dated June 14, 1995.4. Ogg and Zink, "Modern Foreign Governments", p. 978.5. Op. cit., p. 129.6. Linebarger and others, Far Eastern Govts. and Politics, p. 500.7. Ibid, July 31,1998.8. Hindustan Times dates July 14 and July 25, 1998.415 THE DIET"Japan is the first country to have parliamentary government in Asia".The parliament in Japan is called the Diet.' It has two chambers the House of Councillors and the House of Representatives. The Diet is the central legislature.It did not come into origin suddenly, but has evolved gradually.History of the DietJapan is the first country to have a parliamentary government in Asia. In 1860, the Japanese had the opportunity of observing, at first hand and for thefirst time in history, a national legislative assembly in action when they visited the Congress in the United States. They were amazed to see its law makingprocedure. As we have studied earlier, a movement for the establishment of constitutional government took birth alongwith the end of a feudalism in Japan.To pacify the agitators a legislative body called the Senate was established in 1874. The Senate was, however, neither the representative chamber of thepeople nor had it any authority. Therefore, it could not pacify the agitators. The movement for a constitution in the meantime, gained momentum. Itogakiand his colleagues gave momentum to the movement for a national representative assembly. After a struggle for seven years, the Emperor Meiji made an imperialdeclaration in 1881 and said that a parliament will be called in 1890. Consequently, the Meiji Constitution promulgated on February 11,1889 provided fora bicameral legislature. It was to be called the "Diet". It was to consist of two houses - the House of Peers and the House of Representatives. The Houseof Peers contained 416 members. The House of Representatives contained 450 members. About 90 per cent of the members were to be hereditary Peers. The membersof the House of Representatives were elected by42the people. The term of the House of Peers was seven years, that of the House of Representatives, four years. There was no mention of adult-franchise inthe Meiji constitution. A man was entitled to vote only if he was of twenty-five years of age or above and paid 15 Yens annually in direct tax. Before1925, only 41/2 lakhs of males had the right to vote. Later the tax qualification was removed and thus the member of votes increased to 1.3 crores. Fora candidate, the minimum age was fixed at thirty.The Diet used to meet once a year for three months. The Emperor could extend or reduce this tenure. Thus Diet was similar to the British House of Commonsbut taken as a whole, it was less powerful because its powers were limited. The ministers were not responsible to the House of Representatives and on anadverse vote in the House it was not necessary for them to resign. Money-bills could be introduced only in the lower House. The most strange feature wasthat in the event the Diet failed to pass a budget-bill, the Government was authorised to carry out the budget of the preceding year. The Emperor had theauthority to assent to or reject a bill. Thus, under the Meiji Constitution, the Diet was a weak body. Sovereignty resided in the Emperor. The Diet wasa legislative body only in form and name, but in reality it was a stamping machine to approve the policies decided by the Executive. It gave the legalform to the decrees issued by the Emperor. Both the Houses were equal in their powers. The House of Peers being hereditary and oligarchical in its compositionwas a conservative chamber which remained an obstacle in the way of popular control over the government for decades. Later on the governmental power passedon in the hands of the military leaders who generally made the parliamentary government ineffective. Though the Diet remained in existence, yet it hadno control or influence over the government. However, the military leaders did not consider it feasible to abolish it altogether.After the second world war, a new constitution on democratic lines was framed. In this Constitution the powers of the Emperor were abolished, and the governmentwas made entirely civil and the Diet was made powerful. In the Constitution the Diet was declared to be the highest organ of state-power and the sole law-makingorgan of the state. The Government became Diet-centered in place of Emperor-centered. Under the present Constitution, the Diet consists of two Houses -House of Representatives and House of Councillors.House of RepresentativesThe House of Representatives is the popular chamber of Japan. It holds an important place in the governance of the country. Originally its43membership was 300. At that time the women were not entitled to vote. In 1902, rules regarding franchise were liberalised and the membership of the Houseof Representatives was increased. In 1925, adult-franchise was introduced in Japan and the membership of the House of Representatives was raised to 466.In 1954, Japan got back the island of Amami Oshima and one member more was added to the House. Now the total number of members in the House of Representativesis 512, they are elected by the voters directly. Every man and woman who is of twenty years of age or above is a voter.Under the new political reforms Bill, 1994, the old system of multi-member constituencies has been abolished. Now 274 districts would each choose one legislatorin the Lower House, instead of the current system in which each district elects several legislators, and 226 legislators would be chosen under proportionalrepresentation based on voting for parties which will ensure some representation to smaller political parties. The Reform Bill also seeks to ban corporatedonations to individual politicians though the same are allowed to political parties.Elections under the new system were held in October 1996. In these elections, the Liberal Democratic Party (L.D.P.) became the country's biggest party,but fell short of 12 seats to gain parliamentary majority. The Liberal Democratic Party that dominated Japanese politics for decades but lost power inthe 1993 elections, has made a historic turn around. The limited electoral reform of doing away with multi-member constituencies and introducing proportionalrepresentation for 40 per cent of the seats has not produced any dramatic changes in the electoral scene. The voter turn-out has been the lowest—59 percent compared to 67 per cent in the last election in 1993. The L.D.P., having failed to gain absolute majority, Japan is once again in for another eraof coalition government. Revival of the economy and bureaucratic reform were the two themes on which all parties promised action through their own prescriptions.It remains to be seen whether a coalition will be able to move actively on these two fronts.Qualifications of the MembersThe qualifications for membership in the Diet are fixed by law. The following are the qualifications: (i) He must be a citizen of Japan; (ii) His age must be not less than 25 years and he must have been the resident of the district continuously for three months; (iii) He must not have been adjudged as mentally incompetent or a convict for a serious crime; (iv) He must not hold any office of profit under the government; 44(v) He must not have been adjudged an insolvent;(vi) He must not have been deprived of the membership by an Act of the Diet; (vii) No person can be a member of both the Houses of the Diet. TenureThe tenure of the House of Representatives is four years, unless sooner dissolved. If a Prime Minister fails to get the confidence of the House or if theHouse passes a no-confidence against the cabinet, in that case the cabinet will either resign or the House will be dissolved within ten days. A new electionmust be held within 40 days and the first session of the House must be called within 30 days of the election.On an analysis of the occupational composition of the House of Representatives, it comes to our notice that the representatives of the business, financeand industry are the greatest in number; next comes the ex-officials of the government, lawyers, journalists and doctors. The representatives of the labourand agriculture-class are less in proportion to their population.Functions of the House of RepresentativesThe Constitution of Japan definitely establishes the supremacy of the House of Representatives and it is in accordance with the practice of parliamentarysystem. The cabinet is responsible to it and in law-making it has the final say. Its functions may be summarised as follows:(i) Legislative FunctionsIn the legislative matters the House of Representatives, enjoys wide authority. If the House of Councillors rejects or amends a bill passed by the Houseof Representatives, it will become an Act if the House of Representatives passes it second time by a two-thirds majority of the members present. Generally,a joint committee is constituted to resolve the disagreement between the two Houses but if, in case, the disagreements is not resolved, the foregoing procedureis adopted. The bills which are rejected by the House of Representatives, cannot be considered by the House of Councillors. The Constitution also providesthat if the House of Councillors fails to take final action on a bill passed by the House of Representatives within a period of sixty days after its receiptfrom that House, the House of Representatives may take such inaction on the part of the House of Councillors as a rejection of the measure by it. If theHouse of Representatives again passes the bill by a majority of two-thirds or more members present, it becomes a law of the Diet This means that the Houseof Councillors can at the most delay a bill for a period of two months. Thus the final authority in law making rests with the House of Representatives.45(ii) Executive FunctionsThe House of Representatives controls the Executive. The cabinet is collectively responsible to the House of Representatives. If the House passes a motionof no-confidence against the cabinet the latter has to resign. If the House does not approve the policies of the government, it has to resign. Thus thecabinet can remain in office only so long as it enjoys the confidence of the House of Representatives.The Cabinet makes a report to the Diet on the general national and international matters. It also reports at regular intervals and, at best, annually tothe Diet on the state of national finances. The House may investigate into the activities of the Executive fully. It may appoint the committees of investigation.Without the approval of the Diet no treaty can be effective.The House controls the executive through questions also. The members may seek information through oral or written questions. The Question-Hour in the Dietis very important because during this time the members can point out the defects of the executive and also ventilate the grievances of the people.Legally, the Prime Minister is elected by the Diet but in practice he is the choice of the House of Representatives. If the House of Representatives andthe House of Councillors disagree and no agreement is reached even in the meeting of a joint committee of both the Houses, or if the House of Councillorsfails to make designation within ten days after the House of Representatives has made its choice, the decision of the House of Representatives is finaland is deemed to be the decision of the Diet. Besides the Prime Minister the other ministers also mostly belong to the House of Representatives.(iii) Financial FunctionsThe House of Representatives has full control over the purse of the nation. No new taxes can be levied nor the existing taxes can be changed without itsconsent. The Constitution provides that the budget should be introduced before the House of Representatives. According to Article 60, if the House of Representativespasses the budget and the House of Councillors takes no decision over it within thirty days of its receipt or takes a decision different from that of theHouse of Representatives, and when no agreement is reached through a joint committee, the approval of budget by the House of Representatives becomes theapproval of both the Houses of the Diet. Evidently, the House of Representatives fully controls the financial policies and the purse of the state. Accordingto Article 8 of the Constitution, "No46property can be given to or received by the Imperial Household, nor can any gifts be made there from, without the authorisation of the Diet."(iv) Judicial FunctionsThe House of Representatives along with the House of Councillors form the final court of impeachment for the judges of the Supreme Court. Seven membersfrom each House are the members of the court of impeachment. These fourteen members elect one President. For initiating impeachment proceedings an Indictmentcommittee is constituted which consists of an equal number of members from each House of the Diet. No one can be a member of the court of Impeachment andthe Indictment committee simultaneously.(v) Electoral FunctionsThe House of Representatives can make and amend the electoral law. The Constitution provides that there shall be no discrimination because of race, creed,sex, social status, family origin, education, property or income. Article 55 provides: "Each House shall judge disputes related to the qualifications ofits members. However, in order to deny a seat to any member, it is necessary to pass a resolution by a majority of two-thirds or more of the members present.The House of Representatives, along with the House of Councillors, takes part in the election of the Prime Minister. The House of Representatives electsits Speaker and Deputy Speaker in its' meeting."(vi) Constituent FunctionsAmendments to the constitution can be initiated in either House of the Diet The motion must be passed by a two-thirds majority of all members of each House.Thereafter, the amendment passed is submitted to the people for their approval at a referendum. If it is passed by an affirmative vote of a majority ofall votes cast, it becomes a part of the constitution.House of CouncillorsThe House of Councillors is the upper chamber of the Japanese Diet. Although it has replaced the House of Peers, it is not hereditary in nature. It consistsof 252 elected members. The same electorates, as for the House of Representatives, elect the councillors. Out of 252 members, 152 are elected on a geographicalbasis, i.e., from 46 Electoral districts in which the country is divided, and correspond with the prefectures. A prefecture is allotted seats in proportionto its population; roughly 2 to 8 seats are allotted to each prefecture and the remaining ones are elected by the nation at large. Thus, there are two47types of constituencies, local constituency and national constituency. A voter accordingly exercises two votes one for the local and the second for nationalconstituency.TenureThe members of the House of Councillors are elected for six years of whom one half retire after every three years. The House cannot be dissolved.Qualification for MembershipThe age-qualification of the members of the House of Councillors is 30 years. All other qualifications are the same as those for the members of the Houseof Representatives. The House is the final judge in case of disputes relating to qualifications of its members. No one can be a member of both the Housessimultaneously.QuorumThe quorum of the House of Councillors is fixed as one-third of the total membership. No business can be transacted until and unless one-third of the membersare present in the House.PresidentThe presiding officer of the House is known as "Gicho". He is elected by the House at the beginning of the session by secret-ballot. His term is concurrentwith the terms of the House.Functions of the House of CouncillorsThese are the following:(i) Legislative FunctionsBoth the Houses of the Diet enjoy identical powers in the legislative field. According to Article 41, the Diet is the supreme legislative organ of the state.Article 59 says that a bill becomes a law after it is passed by both the Houses. The bill may be introduced in either House and will become an Act, onlyafter it is passed by both the Houses separately. But the Constitution establishes supremacy of the House of Representatives. It is provided that in casethe House of Councillors makes a decision different from that of the House of Representatives and such a difference cannot be resolved in a Joint Committeeof the two Houses, it becomes a law of the Diet when the House of Representatives passes the Bill for the second time by a majority of two-thirds of themembers present. The Constitution also provides that if the House of Councillors fails to take an action within sixty days after receipt of the Bill fromthe House of Representatives, it may be taken by48the House of Representatives to constitute a rejection of the bill by the House of Councillors, and the decision of the Representatives is considered finalin that case. Though an effort is made to resolve the difference of the two Houses in a joint committee, yet it is clear that the House of Councillorscan at the most delay a bill by sixty days.(ii) Executive FunctionsAccording to Article 66, the "cabinet is responsible to the Diet" which may mean that it is responsible to both the Houses of the Diet. But if we look toArticle 69, we would find that it is responsible only to the House of Representatives. Article 69 provides: "If the House of Representatives passes a no-confidenceresolution or rejects a confidence motion, the cabinet shall resign enmasse, unless the House of Representatives is dissolved within 10 days." Thus itis clear that the cabinet is responsible only to the House of Representatives. The House of Councillors has got no control over the executive. It has,however, the power to put questions and move resolution and thus may impress on the government the desirability of pursuing a particular policy. It hasthe right to seek information on any matter from the government It may ask the government to follow a particular policy. It may divert the attention ofthe Government to any grievances of the people. The cabinet makes a report to both the Houses, on the national and international matters. The House ofCouncillors can appoint investigation committees to investigate any matter. However, it cannot compel a ministry to resign.(iii) Financial FunctionsAll money bills originate in the House of Representatives. Article 60 provides: "when the House of Councillors makes a decision different from that of theHouse of Representatives, and when no agreement can be reached even through a joint committee of both the Houses, provided for by law, or in the case offailure by the House of Councillors to take final action within 30 days after the receipt of the budget passed by the House of Representatives, the decisionof the House of Representatives shall be the decision of the cabinet." Thus it is clear that the House of Councillors enjoys a secondary position in respectof money bills. It can only delay the passage of a money bill by thirty days.(iv) Constituent FunctionsThe Constitution provides that a proposal for amendment of the constitution will be introduced in the Diet Article 96 states that amendments passed by aconcurring vote of two-thirds or more of all the members of each House shall thereupon be submitted to the people for49ratification, after which they shall become an integral part of the Constitution. Thus in respect of constitution-amending, the powers of both the Housesare identical.(v) Electoral FunctionsBoth the House of Representatives and the House of Councillors take part in the election of the Prime Minister. But if there is a difference of opinionbetween the Houses and this difference is not resolved in a joint committee or the House of Councillors does not make its designation of the Prime Ministerwithin ten days of the designation by the House of Representatives, the decision of the House of Representatives shall be the decision of the Diet TheDiet prescribes the qualifications of the members of both the Houses and can amend the electoral law. It can also enact laws regarding the formation ofelectoral districts, methods of voting and other matters pertaining to the method of election of members of both the Houses. Each House is competent tojudge the disputes relating to qualifications of its members, and may deny a seat to any member by a resolutions, passed by a majority of two-thirds ormore of the members present The House of Councillors elects its own President, Vice-President and the Chairman of the Standing Committees.(vi) Judicial FunctionsThe House of Councillors, along with the House of Representatives, constitutes the court of impeachment for the judges of the Supreme Court There are now14 members of the court drawn equally from both the Houses. An Indictment committee, consisting of an equal number of members of both the Houses of theDiet, is also constituted to prefer charges for removal against a judge to be impeached. A member of the Indictment committee cannot simultaneously bea member of the court of Impeachment. In judicial matters, both the Houses possess identical powers.Position of the House of CouncillorsAlthough the jurisdiction of the House of Councillors is concurrent with that of the House of Representatives, yet there is little doubt that the Houseof Councillors is a weaker chamber. The Constitution has made the House of Representatives more powerful and it is in accordance with the parliamentarysystem wherein the popular chamber remains the focus of authority. On ordinary bill and financial matters the decision of the House of Representativesultimately prevails. The cabinet is responsible to the House of Representatives. The Prime50Minister is elected from amongst the Representatives. The majority of the Ministers, too, belong to the House of Representatives. The councillors cannotveto legislation. If the House of Representatives passes an ordinary bill for the second time, it becomes a law irrespective of its rejection or amendmentby the councillors. In respect of money bills and the election of the Prime Minister the House of Representatives has a greater say. In money matters,the House of Councillors is entirely ineffective. The money bills cannot even be introduced in the House of Councillors. However, the House of Representativesis not so powerful as the House of Commons in England.The major function of the House of Councillors is to give stability and continuity to Diet, since it cannot be dissolved. In addition to it, the upper Househas a moderating and restraining influence upon the House of Representatives. The House of Councillors has the right to put questions, seek informationand pass resolutions, but if the government is defeated in the House of Councillors it need not resign. As regards constitution-amending and judicial powersboth the Houses enjoy parity. But the House of Councillors is not the Supreme Court of Appeal as the House of Lords is in England. Neither it is so powerfulas the American Senate is. Yet it is more powerful and important than the second chamber of France.In its composition, the House of Councillors was intended to combine the advantage of informed local representation with those of a panel of nationallyeminent candidatures. "But after more than four decades of the working of the Constitution", says Theodore, "the House of Councillors is not greatly differentfrom the House of Representatives either in terms of age or politics."1 It has become practically a partisan body like the House of Represent aUves. Whenthe same political party is in majority in both the Houses, there is little possibility of a difference of opinion among them and the bills get easilypassed. For the last few years it is being realised that the House of Councillors has not fulfilled the purpose of exercising a restraining influence overthe House of Representatives, the reason being that it is an entirely directly elected chamber. To win the elections, the candidates have to seek the labelof a political party. As a result thereof, they come under rigid party control and the decisions of the House of Councillors are virtually the decisionsof the party leaders. When the same party is in majority in both the houses, bills pass through ipso facto. Rigidity of party discipline does not permitopposition of any51kind to the Government's policy, with the result that the House of Councillors has become a recording chamber. Therefore, some Japanese feel that some kindof reform is urgently needed in its composition so that it may be in a position to exercise a moderating influence over the House of Representatives.The House of Councillors is stronger than the House of Lords but weaker than the American Senate.The Speaker of the House of RepresentativesThe Presiding officer of the House of Representatives is called the 'Gicho' or the Speaker. He is elected by the House at the beginning of the session bysecret ballot. The tenure of the Speaker coincides with the term of the House. If the member who was elected Speaker, resigns or accepts some office ofprofit or dies, a new Speaker is elected by the House. In addition to the Speaker, other officers of the House - Deputy Speaker, Chairman of the StandingCommittee and Secretary General are also elected by the House of Representatives. It may be noted that under the Meiji constitution the Speaker was notelected by the House. It nominated three members and the Emperor selected one out of them to act as the Speaker. But now the House itself elects the Speaker.The Speaker of the Japanese House of Representatives does not renounce his party affiliations after his election to that office. He continues to be an activemember and furthers the interests of his party in the House. In England, the Speaker renounces his party affiliations and acts in an impartial manner inthe House of Commons. Once elected he remains its Speaker for life. In the next elections, no candidate is proposed to oppose him and he is elected unopposed.But Japan does not follow the British convention. In the General Election, the Speaker faces his opponents and to win the election he takes an active partin the political activities of his party. Even if he wins the General Election, there is no guarantee that he will be elected the Speaker. If the otherparty comes in majority, it will elect its own man as Speaker. Even if his own party is returned in majority there is no assurance that he will be electedthe Speaker. In short, his role is very much akin to that of his counterpart in the United States rather than to that in England.His FunctionsThe Office of the Speaker is an office of great dignity, honour and authority. His powers and functions are as follows: (i) He interprets the rules of the House. (ii) He is the custodian of the rights of the House and its members. 52(iii) He is the spokesman of the House.(iv) He fixes the order of business. (v) He presides over the meetings of the House and conducts its proceedings.(vi) He recognizes the members on the floor of the House. (vii) He decides all points of order and gives his ruling thereon. (viii) He puts the bills to vote and announces the results of the voting. (ix) He maintains discipline in the House. If a member does not obey his order, he may suspend him for the day or for a few days. But he cannot expel amember from the House, unless the House passes a resolution to that effect by a two-thirds majority of the members present. He may adjourn the House. (x) If unparliamentary or indecent words have been used by a member in the House, he can expunge those words from the proceedings of the House.(xi) He fixes the time limit for speech and discussion in the House. (xii) He accepts the resignation of the members. (xiii) He refers the bills to the appropriate committees. (xiv) He is the symbol of the collective will of the House.The Speaker receives a salary equivalent to that of the Prime Minister and the Chief Justice. He also ranks high in precedence.The House of Representatives has its own Secretariat. The secretarial staff functions directly under the control of the Speaker and is responsible to himfor its acts of omission and commission. In case of contempt of his House by an individual, he may order the offender to apologize or to pay fine.The Committees of the HouseIn all the modern states the legislatures make use of the committees in the work of law-making. In Japan too, the committee system is made use of to finishthe work of legislation speedily and efficiently. Under the Meiji constitution, there were five standing committees in each House but these committeeshad no vital role because most of the work was done in Houses. Now the committees have been given an important role. The committee system forms the coreof the legislative process in the Diet.There are four kinds of committees in the Diet(i) Standing Committees;(ii) Special Committees;(iii) Joint Conference Committee;(iv) Joint Legislative Committee.53(i) Standing CommitteesOriginally there were 22 standing committees in the Diet which in 1955 were reduced to 16 in each House. These committees are the following: Cabinet, LocalAdministration, Judicial, Financial, Education, Welfare and Labour, Agriculture, Forests and Fisheries, Budget and Accounts, Transport, Communications,Construction, Audit, Steering, Discipline, Foreign Affairs and Trade and Industry. Most of these committees correspond to the Ministries of the Government.A standing committee may consist of 20 to 50 members. The Discipline committee has 20 members whereas in the Budget committee there are 51 members. Afterthe election of the Speaker, the committees are selected. The members to each committee are appointed by the presiding officer of the House concerned onthe basis of party-strength in the House. According to a law of the Diet, a member must serve at least on one standing committee but he cannot serve onmore than three committees. The chairman is elected by the members of the committee. Chairmanships are allocated to the parties, roughly in proportionto the strength of each party in the House. The decisions in the committees are made on the basis of the majority vote. In case of tie the chairman exerciseshis casting vote. Chitoshi Yanaga writes: "Committee chairmanship is a position of power and coveted by all politicians since it carries with it both powersand prestige." Not only a chairman is able to influence the legislative programme of the government but is able to enjoy the pre-requisites and complementsof his office which are considerable. As presiding officer, the chairman not only opens and closes the meetings of the committee but works out the agenda,determines the order of the business and regulates the speed of deliberations. He is in control of various stages of the committee's work, questioning,debate and decision. In his capacity as the spokesman and representative of committee, in all its external relations and negotiations, he becomes a key-figure.The standing committees play an important role in law-making. All the bills introduced in the Diet are referred to the standing committee concerned. Thecommittee examines the bill thoroughly. It may hold public meetings and invite persons to give their opinion: The people can themselves send memorandumto the committee. After the committee has discussed the bill it makes a report to the House. The report is submitted to the House by the Chairman of thecommittee. If the committee does not want to make a report over a bill, it may do so. In other words, the committee may pigeonhole any bill which it deemsnot worthy, necessary or desirable and may not report to the House.54(ii) Special CommitteesEach House may appoint a Special Committee to study particular problems or proposals. Such a committee may be appointed to investigate into any particularproblem like a disaster, an administrative scandal, repatriation, trade, etc. In February, 1960, the Diet appointed a Special Committee of 45 members toreconsider the proposals of the Americo-Japanese peace treaty. The Special Committees come to an end as soon as they complete their work, whereas the standingcommittees are appointed for the duration of the session. The members of the Special Committees are appointed by the chairman of the House concerned. Thechairman of the committee is elected by the members from among themselves. The life of the Special Committee may extend beyond the session of the Housein which it was created. The matters before the committee are decided by a majority vote. The chairman exercises a casting vote in case of a tie. The SpecialCommittees like the standing committees have a right to summon people to know their opinion. It can take evidence and call for any information from thegovernment. It can look into the official records. Disobedience to the orders of the committees is subject to a contempt charge. The committees makes itsreport to the House. If the report is not unanimous, a majority report may be presented. Commenting upon the importance of the Special Committee, ChitoshiYanaga writes, "Actually, so far as the general public is concerned it is the work of Special Committees which attracts widespread attention and interestbecause of the emergency or sensational nature of most of the subject matter handled."2(iii) Joint Conference CommitteeThis committee is constituted when there occurs a deadlock over any matter between the two Houses. Article 59 provides that in case the House of Councillorsand the House of Representatives make different decisions on a legislative bill, the House of Representatives may call a meeting of a joint committee ofboth the Houses for resolving the disagreement. Such a committee may also be called to resolve the differences with regard to the budget, treaties, designationof the Prime Minister and constitutional questions. A joint committee consists of 20 members equally drawn from both the Houses. The members elected fromeach House select their own chairman and each chairman alternately presides over meeting of a joint committee. The decisions in the committee are arrivedat by a two-thirds majority of the members present and voting.55(iv) Joint Legislative CommitteeIt is a joint committee of both the Houses consisting of ten members from the House of Representative and eight members from the House of Councillors. Ithas also two chairmen elected by the members of the two Houses separately who preside by turns. The decisions are taken by a two-thirds majority of themembers present and voting. This committee has nothing to do with legislation. It is entrusted with the responsibility of advising both Houses in advanceregarding— (i) Those matters of national policy to be taken by the Diet which would create problems; (ii) Proposals of new legislation as well as laws and cabinet orders in force; and (iii) Revision of laws and rules pertaining to the Diet.Evaluation of the Committee SystemThe framing of the Japanese committee system resembles to the committee system in the United States to a great deal. The committee system has been criticisedon the following grounds:(i) Firstly, it has been said that there are too many committees with the result that the affairs of the nation are dwarfed into many small segments. Thiscreates a problem in the development of clear-cut national policies.(ii) Secondly, the committees have been set up to correspond to the administrative departments. It has resulted in a serious confusion and obliterationof the functional distinction between the legislative and executive branches. These committees have been called the "outposts of the administrative departmentsor agencies of business and special interest in the Diet." Kahin writes, "A common complaint is that committees tend to develop close ties with the ministrywhose field of interest is related to it, for example the agricultural committee and the Ministry of Agriculture and Forestry, and as such this encouragescommittees to become special pleaders for the ministries and their clientele."3(iii) Thirdly, the committees of the Diet like the American committee system to a great extent determine the activities of the Diet. They decide as to whichbills should be brought up for deliberation and which should be withheld. Thus, the committees are able to block measures from the consideration of theDiet. Moreover, since much or most of the business is transacted in committees, many of the details of the proposed legislation remain unknown to legislatorswho are not committee-members. Chitoshi Yanaga writes: 'This makes it difficult,56if not impossible, to effectively dramatize the general debates on the floor of the House. In fact it can often lead to the minimizing of the usefulnessas well as the effectiveness of the general floor debate. It has also contributed to extremely poor attendance at plenary sessions, except for very specialoccasions."4(iv) Fourthly, the chairmen of the standing committees have shown bureaucratic tendencies. Instead of representing the interests of the people, they havetried to safeguard the interests of the departments. Sometimes, they have increased the demands for grants, instead of reducing them. They have encouragedthe Government to spend more money, even when it was not demanded by her. That is why some writers have labelled the committee system as the "cancer ofthe Diet."(v) Fifthly, according to Prof. Ardath Barks, special interests dominate and influence the discussions and decisions of the committees and the Diet, assuch, becomes "a notorious tool for promotion of narrow committee interests." He holds that the Japanese committee system is much suited to the presidentialsystem of government rather than to a Parliamentary democracy.The Legislative ProcedureIn Japan the procedure of law-making is sharply distinguishable from that of the other parliamentary countries. It is simple and matter of fact. There arejust three stages which cover the passage of a Bill: Introduction, Committee stage and consideration by the House. The same procedure is followed in boththe Houses. There is unitary Government in Japan; therefore the Diet is the sole law-making organ. It can make laws on all matters. The bill can be introducedin either of the two Houses and must be passed by both of them before it becomes an Act.The bills in Japan are normally of two kinds: Government Bills and Member's Bills. A Government Bill is one which is introduced in the Diet by a ministeron behalf of the Government. It may be related to any matter. The member's bill originates from a member, who is not a member of the Government and canbe introduced only in that House of which he is a member. The member's bill can be related to public or private matters. From the viewpoint of its contentthere is thus no difference between a Government bill and a member's bill. Both may relate to public or private matters.The various stages in the process of law making may be described as follows:57(i) Preparation of the BillIt is clear that legislation is necessitated by the demands for new policies as well as for modifications, amplifications or shifts in emphasis in existinglaws deemed desirable and necessary in meeting new problems and changing conditions. The policies are framed by the cabinet in its meeting. If the policy-decisionsare reached in the cabinet, the appropriate administrative departments takes up the responsibility of concretizing the policy into the form of a bill.When a department realizes the necessity of a bill, in that case also that department takes up the task of drafting a bill. There are several sectionsin the department to draft a bill. The drafting section prepares the bill and sends it to the department's Documents' Section chief in the Secretariat,to the Parliamentary Vice-Ministers, and finally to the Minister who acts on it. After the bill is examined and approved by the Minister it is submittedto the Prime Minister who places it on the agenda of the cabinet meeting for the consideration by the cabinet.The department may seek the assistance of the Bureau of Legislation in drafting the bill. The Bureau is under the control of the cabinet. When the Billis received by the cabinet Secretariat, it is submitted to the Bureau of Legislation for study and scrutiny. The purpose of the scrutiny is to see thatthe bill is not in violation of an existing law or is not unconstitutional, that its phraseology is correct, that there are no errors or loop-holes andthat it is correct from the legal and technical points of view. Generally, the task of the Bureau is to scrutinize the bill, but it itself can also drafta bill and submit it to the cabinet for its consideration. Formerly, the Bureau of Legislation began the study of draft-bills only after they had beensubmitted by the cabinet; but in recent years it has become the usual practice to begin the study as soon as rough preliminary drafts are furnished byan administrative department This brings in the advantage of expediting and speeding up the work and producing much more satisfactory result.The Bureau studies the bill thoroughly. It may discuss the bill with the officials of the department who drafted the bill as well as from other interesteddepartments. When jurisdictional disputes occur, the Bureau acts as a mediator and resolves the dispute. The Bureau may completely amend the bill. Afterthe Bureau has examined the bill it makes a notation to the effect that the draft-bill has been carefully studied and is now ready to be submitted to theDiet after the approval by the cabinet.Thereafter, the cabinet considers the bills. Before the bill is taken up in the cabinet it is customary to discuss it in the Vice-Minister's58meeting. The meetings of the Vice-Ministers have become the biggest liaison conference of the administrative officials of the cabinet. Through these meanseffective liaison is maintained so that no business taken up at a cabinet meeting comes as a surprise to any department as used to happen in the past Thedecisions taken up at the Vice-Minister's' meeting are generally approved by the cabinet the next day. The cabinet hardly discusses the bill in details.The cabinet, when necessary, may call upon the Minister concerned or the Director of the Bureau of Legislation to explain the bill. After the cabinet hasapproved the bill, it is ready for being introduced in the Diet.(ii) Introduction of the billAfter the Bill has been approved by the Cabinet, it is sent to the House in which the Government wants to introduce the bill. Money bills can be introducedonly in the House of Representatives. The Bill is introduced in the name of the Prime Minister. Within five days of the introduction of the Bill, a copyis sent to the other House. The Speaker, on the receipt of the bill, circulates it among the members and refers it to the appropriate committees on therecommendations of the committee of Ways and Means. In case of very urgent bills, reference to the committees is omitted and the bill is discussed in theHouse.Generally, the bill is not discussed in the House preceding the committee-stage, but if the committee of Ways and Means so decides it may be so discussed.This was done in the case of the subversive Activity Prevention Law, the National Civil Service Law, and the Police Law.(iii) Committee-StageThe committee-stage is the most important stage in the career of a Bill. The bill may be referred to either a Standing Committee or a Special Committee.The committee considers the bill carefully. It examines the different Articles, goes through its phraseology and sees to it that the bill is in conformitywith the existing laws and the constitution. It may invite any Minister or a member of the House to express his opinion, may ask for any data and informationfrom the administrative departments. It can put questions to the Government officials. It may even summon the Prime Minister. It may hold public meetingsand invite people to express their opinion. It may make investigating trips including travels abroad to get relevant information. The political partiesmay send their views on the bill.59The officers of the Diet assist the committee in its work. It may make use of the Diet-library and seek opinion from the Bureau of legislation. Sometimes,two or more committees may jointly consider an important bill. After having examined the bill, the committee prepares its report which may be unanimousor a majority report. The minority may submit its own report. If the committee so likes; it may not make any report at all over the bill to the House inwhich case it would be deemed to have rejected the bill and the House will not proceed with its consideration. Thus in Japan a committee may pigeonholeany bill which it deems not worthy or necessary.(iv) Consideration by the HouseAfter the bill has been reported to the House it is taken up for consideration by the House. The chairman of the committee presents the report togetherwith the minority report, if any. The members discuss the bill and move amendments. All amendments must be supported by at least twenty members in caseof the House of Representatives and ten members in case of the House of Councillors. In case of Money Bill, a move for amendments must be supported byat least 50 members and 20 members respectively. There is heated discussion over the bill in the House. The Speaker fixes the time limit for discussion.Every Article is passed by voting.After all the Articles have been voted upon, the Bill as a whole is voted upon. Generally votes are taken by open ballot but secret ballot may also be takenon a demand made by one-fifth of the members present. The Speaker casts a deciding vote in case of a tie.(v) Bill in the other HouseAfter the bill has been passed by one House it is sent to the other house. In the other House also, the bill has to pass through all the stages enumeratedabove. If the second chamber approves the bill, it becomes an enactment of the Diet and is transmitted to the Emperor for promulgation. If the other Houserejects or amends the bill, it is sent back to the House from which it was received. If the first House accepts the amendments made by the second House,it is considered to have been passed by both the Houses. In case of disagreement, the bill is placed before a joint committee of both the Houses. If thedisagreement is resolved, it becomes an Act. In case the disagreement is not resolved, the House of Representatives can override the House of councillorsby a two-thirds vote.60(vi) Approval of the EmperorWhen a Bill is passed by both the Houses, it is submitted to the Emperor by the Speaker through the cabinet. The cabinet decides the date of its promulgationand submits to the Emperor with the signatures of the Minister concerned. After the bill is signed by the Emperor it becomes an Act and is promulgatedas soon as it is published in the "Official gazette." The Act must be published within 30 days of the Speaker's report. The Emperor has no power to vetoa Bill passed by both the Houses.The BudgetThe procedure for enactment of the budget is similar to that described above except with the following differences:(i) The budget is formulated by the Ministry of Finance. The cabinet considers it twice - once in the month of January when the cabinet considers the demandsmade by the different departments and makes a cut in these demands. After this preliminary consideration by the cabinet, the departments reconsider theirdemand and send to the Minister of Finance their revised demands. The Minister of Finance reprepares the draft and submits it to the cabinet for the secondand final consideration. After the cabinet has considered and discussed it, it is ready for being introduced in the Diet. Thus in the formulation of theBudget the Bureau of Legislation plays no part. The entire work is done by the Ministry of Finance.(ii) The Budget can be introduced only in the House of Representatives. The introduction of the budget is followed by the speeches of the Prime Ministeron administrative policy, of the Finance Minister on financial policy, and of the Economic Policy Board on Economic Policy. All these Speeches are givenin the House of Representatives first and in the House of Councillors later. The Budget is sent to the House of Councillors the next day. Thus the budgetis introduced in the House before it goes before the budget bill committee.(iii) The budget bill committee is the most important standing committee. It consists of 51 members. Almost all the ministers, the Prime Minister and theFinance Minister appear before the committee to justify the estimates of their respective departments.(iv) If the House of Councillors does not make any decision within thirty days of the receipt of the budget bill or does not agree with the House of Representativesand the disagreement is not resolved in the Joint Conference, committee the decision of the House of Representatives is considered final. The House ofCouncillors gets a61period of sixty days over the ordinary bills, while it gets a period of thirty days over the money bills. Secondly, the provision of the bill being passedby a two-thirds majority in the House of Representatives for the second time in the case of disagreement does not apply to money bills. It applies onlyto ordinary bills.References1. Me. Helly, Theodore, Contemporary government of Japan, p. 103.2. Yanaga Chitoshi, op. cit., p. 134.3. K.ahin Q.M., Major Governments of Asia, p. 132.4. Yanaga Chitoshi, op. cit., p. 198.626 THE JUDICIARY"There is no better test of the excellence of a Government than the efficiency of its judicial system."-Lord BryceJames Bryce remarked that "There is no better test of the excellence of a Government than the efficiency of its judicial system." The Judicial system ofJapan is quite old. Before the world war there was a different type of judicial system which has now been completely transformed into a new and healthyone. In this chapter we shall study the judicial system of Japan.The judicial system in Japan can be divided into two periods: (i) Pre-War Judicial System, and (ii) Post-War Judicial System.The Pre-War Judicial SystemBefore the Meiji Constitution there was no well established system of courts in Japan. Before the 7th century there was no judicial system at all. It wasonly after Japan came into contact with China that a judicial system was set up. The Japanese laws were based on the Chinese legal system hence they couldnot meet the needs of Japan. With the beginning of the feudal era the old royal legal system was abandoned and feudalism set up its own system of traditionallaws. But the needs of the feudal society could hardly be satisfied with a foreign legal system. Therefore, feudal legal system replaced the Chinese legalsystem. When feudalism was abolished in 1988 and the Meiji Government was set up, need was felt of a new legal system. The antiquated laws were an obstaclein the way of national progress. Therefore, during the Meiji period new codes patterned in the German and French system were enacted.Before the world war the Japanese judicial system was completely continental. The Anglo Saxon Jurisprudence had no place therein.63Accordingly, the judiciary was subordinated to the executive. The court administration was under the direct control of the Ministry of Justice and the courtswere limited in their powers. They could not declare any law unconstitutional nor they had the jurisdiction to decide the disputes between the governmentand citizens. The courts of that period can be divided into three groups: (i) Ordinary civil and criminal courts; (ii) Court of Administrative Litigation;(iii) Military Court.At the top of the judicial structure was the Supreme Court. It consisted of 45 justices and one chief justice. It had 9 divisions composed of S judges each.It had original as well as appellate jurisdiction. All cases of treason and serious offences could be taken directly to it. It heard appeals from the HighCourts.Below the Supreme Court there were high courts. They were seven, one in each of the seven districts into which the Empire was divided. The High Courts handedappeals from the subordinate courts. Below the High Courts there were 50 district courts, at least one being located in each prefecture. It had jurisdictionin both civil and criminal cases. At the lowest level there were a little under 300 local courts in which minor cases were tried.In addition to these ordinary courts there was the court of Administrative Litigation which had authority in such matters as tax cases, disputes over thegranting of licences, cases concerning public works, disputes over boundaries between public and private lands and cases arising out of the police administration.Kahin writes, "The administrative court was established on the theory that administrators would be inferior to the judiciary if ordinary courts were permittedto rule on the legality of administrative acts."1The Post-war Judicial SystemUnder the 1947 Constitution far-reaching changes have taken place in the structure of courts and judicial procedure. The continental system previously predominantin Japan has been replaced by the Anglo-Saxon system.The new Constitution also affected a change in the field of law. For the first time "Common law" principles have been accepted. The understandable and simplelanguage has been used. The courts have been made independent of both the executive and legislature.. All the courts have been placed under the controlof Supreme Court The Administrative courts have been abolished. All the legal disputes are64now referred to the common law courts. The courts have been now empowered to declare a law unconstitutional. This has made the judiciary not only independentbut has also enhanced its prestige. In this connection we may quote Article 76 which reads. "The whole judicial power is vested in a Supreme Court andin such inferior courts as are established by law. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be givenfinal judicial power. All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws."The following are the main features of the new judicial system: (i) The constitution has made the judiciary independent Now the courts are not under thecontrol of the ministry of Law, hence they are free from the control of the executive. Their salaries and allowances cannot be reduced during their tenure.They can be removed by an impeachment only or in case they have been declared physically or mentally incapacitated. The Supreme Court now directs the judicialsystem. It looks to the task of recruitment, training and work of the judges and prepares the budget of Department of justice.(ii) The appointment of the judges of the Supreme Court is reviewed by the people at the first general election of the members of the House of Representativesfollowing their appointment and every ten years thereafter. If the majority of the voters disapprove the appointment, the judge is dismissed. However,no judge of the Supreme Court has so for been voted out of office. The judges of the inferior courts are appointed by the cabinet from a list of personsnominated by the Supreme Court for a period of ten years subject to re-appointment who are invariably re-appointed. Thus, under the constitution of Japan(Article 79), the appointment of judges is subject to review.(iii) The work of investigation is now under the control of the Ministry of Law. Thus there is separation of judicial administration from criminal investigation.Both are independent of each other.(iv) The extraordinary courts have been abolished. The executive cannot appoint any tribunal. The entire work of justice is under the control of the SupremeCourt.(v) Formerly, the administrative disputes were referred to administrative tribunals which have now been abolished under the new Constitution. The administrativedisputes are now tried by the ordinary courts. In other words, there is Rule of Law in Japan. Unlike India, there are no Special Tribunals or administrativecourts.65(vi) Formerly the police officers and the procurators could issue warrants of arrest and detention but now such warrants can be issued by the judges only.(vii) Formerly the people were subjected to make forced confessions but it has now been abolished. The accused can put questions to the witnesses. He cannotbe forced to give evidence against himself. The courts cannot hold a person guilty merely on the ground that he has confessed his crime. Trials are conductedin the open.(viii) The prestige of the Supreme Court has been greatly enhanced. It can pronounce upon the constitutionality of any Act. It can declare a law unconstitutionalin case it violates the constitution. It is the court of last resort.(ix) Another feature of the judicial system in Japan is the system of courts of Domestic Relations. These courts are half arbitral and half judicial tribunalscomposed of judges and laymen and they decide cases involving domestic relations and juvenile delinquency.(x) The establishment of a Legal Research and Training Institute under the jurisdiction of Supreme Court marks another feature of the Japanese judicialsystem. No one can become a lawyer, or a public prosecutor or a judge unless he graduates from the institute and has undergone a course of in service training.Unlike India, the study of law in Japan is not a residuary occupation for those who chanced into law school.(xi) The small size of the legal profession is another main characteristic of the Japanese legal system. As per estimates, the number of practising attorneysstood at 12,486 in 1983 and 14,834 in February 1984.2A Statistically, while there is an attorney for about 800 persons in the U.S., in Japan there is alawyer for about 8,000 persons.(xii) The death penalty is constitutional in Japan, but generally verdicts in murder cases have been reversed on retrial. Japan does not have a jury system.Kahin writes, "Undoubtedly the interest of the occupation reformers was to make the judiciary the guardian of Constitution and of human rights by elevatingits stand and by breathing into it a new philosophy."266Organisation of JudiciaryThe Constitution vests the whole judicial power in Supreme Court and in such inferior courts as are established by law. No administrative tribunal can nowbe established. All the judges are independent and are bound only by the Constitution and the law only. Article 78 makes provision for the independenceof the judiciary. It provides that the judges shall not be removed except by public impeachment or unless judicially declared mentally or physically incompetentto perform official duties. No disciplinary action against judges can be taken by any executive organ or agency.The Supreme CourtAt the apex of the judicial structure is the Supreme Court located at Tokyo. It consists of a chief judge and fourteen other judges. Of these five are careerjudges, five are drawn from amongst practising attorneys and five from other occupations such as law professors, procurators or civil servants. No personbelow the age of forty years can be appointed a judge.Appointment and RemovalThe Chief Judge is appointed by the Emperor on the advice of the cabinet. The other judges are appointed by the cabinet and attested by the Emperor. Thefirst appointment of the judges of the Supreme Court is reviewed by the people at the first general election of the House of Representatives followingtheir appointment and are again reviewed at the first general election of the House of Representatives after a lapse of ten years and in the same mannerthereafter. If the verdict is unfavourable this would lead to the removal of the judge. But no judge has been so far removed by this method. The judgesmay also be removed by impeachment as well. If it is pronounced that a judge is physically and mentally incompetent to perform the duties of his officehe is removed. No organ of the executive can take any disciplinary action against the judges. The approval of the appointment of judges by the people ensuresa popular voice in their selection and this is a gesture in the direction of popular sovereignty and popular accountability of the judges.The judges get adequate salaries. Their salaries and allowances cannot be reduced during their term. They retire at the age of 70 years.Jurisdiction of the Supreme CourtThe Supreme Court has not been burdened with work. It has been given only appellate jurisdiction. It may entertain those appeals wherein the question ofthe constitutionality of any law, order, regulation or official act is involved. In other words, it determines the constitutionality or67otherwise of an Act, order or regulation. It is the final court of appeal. Its decisions are final. The decisions may be majority or unanimous decisions.A judge may write a dissenting judgement. It has also the authority to make rules regarding its procedure and the discipline of the court. Public prosecutorsare subject to its rule making power. It can delegate its rule making power to the inferior courts. It nominates the candidates for the inferior courtsand sends the list to the cabinet which appoints the judges of these courts from among this list.The Lower CourtsHigh CourtsThere are eight High Courts below the Supreme Court. The High Courts have both the original as well as the appellate jurisdiction. The original jurisdictionis confined to crimes to overthrow the government In all other cases it has appellate jurisdiction and to a large extent its decisions are final. The numberof judges of each High Court varies according to the pressure of work in that region. The High Court of Tokyo contains 64 judges whereas the High Courtof Sapporo consists of 7 judges. They are appointed for ten years, but may be reappointed. They retire at the age of 65. They are nominated by the SupremeCourt. Judges must have at least ten years' experience in a judicial capacity, or as a prosecutor or as a lawyer.District CourtsThere are 49 district courts one in each prefectures except for Hokkaido which has four. They have original jurisdiction over criminal cases of seriousnature and civil suits involving large sums. These courts also have appellate jurisdiction over cases appealed from the summary courts. The judges, areappointed similarly as the High Court judges and they must possess similar qualifications.Summary CourtsAt the bottom of the judicial structure are the summary courts numbering 570 and located in major cities and villages. Their jurisdiction extends to allordinary criminal cases subject to imprisonment for less than a month and to civil cases involving an amount of not more than 5000 Yens.Court of Domestic RelationsIn addition to the above courts there are the courts of Domestic Relations 49 in number with 235 branches. These courts are like the Panchayats. These courtsare half-arbitral and half-judicial composed of judges and laymen. They deal with matters like inheritance, property divisions, divorce, adoption, etc.The aim of these courts is to promote harmonious relationship within the family and among relatives.68The ProcuratorsThe procurators are those officials who are charged with the investigation of crime and file criminal cases before the courts. They may in common languagebe called attorneys. They are executive officers and work under the control and supervision of the Ministry of Justice. Their duties are purely administrative.They are appointed by the Emperor on the advice of the cabinet The procurators work in accordance with the rules framed by the Supreme Court. Their maintask is to file and plead the case on behalf of the government. The Public Procurator is the head of the Procuratorial system.An Evaluation of the Japanese Judicial SystemAs described above, the new Constitution has completely transformed the judicial system in Japan. It is influenced by the Anglo-Saxon Jurisprudence. Thecourts have been made independent of the control of the executive. The independence of the judges has been ensured through various methods so that theymay deliver the judgement impartially. They are highly conscious of maintaining high standard of impartiality, efficiency and morality. No judge has everbeen impeached or removed. Their appointment is enthusiastically approved by the people. The administrative tribunals have been abolished and Rule of Lawhas been set up. The criminal law and the Criminal Procedure Code have been amended to protect many of the rights of the accused. A unified judicial systemhas been established in the country. The Supreme Court is at the apex of the judicial structure. It is the highest and final court and its jurisdictionis appellate alone. It makes rules for the inferior courts and supervises their work. It directs the work of judicial administration. It also looks tothe recruitment and training of the judicial officers.The most important power given to the Supreme Court is the power to pronounce upon the constitutionality of the laws and executive orders. Under the MeijiConstitution the court did not possess this authority. But now the Supreme Court can declare a law unconstitutional if it violates the constitution. Bygiving the power of judicial review the Supreme Court has been made the guardian of the constitution. The Supreme Court has on many occasions defendedits right to pronounce upon the constitutionality of the laws. It has kept itself independent of the executive control and protected the rights of peopleagainst executive arbitrariness.But the critics hold that the Supreme Court has consistently refused to declare legislative and executive acts unconstitutional. Maki J.M. holds that 'Thetribunal has handed down many decisions dealing with69issues of constitutionality, but, with the exception of certain laws passed in order to implement occupation orders or directives, it has never held anylaw, order, regulation or official act unconstitutional".4 Its view has been that to declare the legislative Acts unconstitutional would be a violationof the principle of the separation of powers, as well as the doctrine of legislative supremacy. The proper remedy for legislation not clearly constitutionalis a political one - that is, the sovereign people can pass judgement on the Diet and on the cabinet by means of the ballot."5Though there are delays in the adjudication of cases in Japan yet, generally speaking, none which would compare to those witnessed in the Indian courts.The reasons for such delays are similar to India -spacing of hearings over a period of time, lengthy legal procedures, right to adduce additional evidenceat the appellate stage and liberal admission of appeals.The Japanese people were not initially very much enthusiastic about their courts. The traditional attitude of the people was to settle their disputes outof court. They were indifferent to their courts. They looked upon the courts as a "place frequented by wrong doers," the procurator's office as "the enemyof the people," and the lawyers as "friends and defenders of evil man."In the words of Robert E. Ward, 'The Japanese are a rather remarkably nonlitigious people. They are traditionally suspicious of the courts and of formallegal processes, and have a pronounced preference for settling disputes by informal methods of conciliation and mediation."6 Dr. Yanaga writes: "No seriousefforts have been made as yet to bring the courts closer to the people and to win their confidence and support."7However, the Japanese now increasingly seek access to law courts to assert individual and collective social rights. The Supreme Court has adjudicated onsocial and political issues like noise pollution, obscene publications, patricide and delimitation of constituencies.References1. Kahin, Q.M. op. cit ., p. 118.2. Kahin G.M., op. cit ., p. 200.3.Chandrachud, D.Y., "A well run legal system" - The Times of India, Nov., 25,1994.4.Maki, J.M. op. cit.,p. 106.5. Ibid., p. 1076.Ward, Robert E., Japan's Political System, p. 102.7.Yanaga, op. cit., p. 363.707 POLITICAL PARTIES"Political parties in Japan change their labels with the greatest of ease and without changing their policies."—Chitoshi YanagaHistorical BackgroundThe party system in Japan, as in other parliamentary democracies, is an extra constitutional growth. The 1946 constitution does nowhere mention the partysystem, though it provides the basis of cabinet government enshrined in the constitution. The origin of political parties may be traced back to 1874 whenearly in January Itagaki organised the patriotic Public Party to carry on a movement for the realisation of liberty and attainment of popular rights. Themovement was suppressed and the Patriotic Public Party went out of existence after only two months of its establishment. In 1878, the party was, however,revived. Although Emperor Meiji abolished the feudal system and had issued the Charter Bath in 1868 containing five important principles of the new politicalsystem, providing for the establishment of a legislative chamber—the Senate; the reforms did not satisfy the liberals who pressed forward the demand fora representative assembly. The Government tried to crush the agitation, but ultimately Emperor Meiji declared on October 18, 1881 that the national assemblywould be established and constitution would be granted in 1890.Soon after the issuance of the Imperial declaration, the Liberal Party and the Progressive Party were formed to carry on the movement for popular government.In order to counteract the influence of both these parties, the Government backed the founding of the Imperial Party. In 1885 all the three parties weredissolved as a consequence of their internal dissensions and Government's repressive policy. Prince Ito who had been sent abroad by the emperor to studythe various71constitutions in 1882 was made the Prime Minister in 1885. He pushed ahead the programme of westernisation and was opposed to political parties. The membersof the disbanded parties joined together and formed a "Greater Coalition of Parties." The Government issued a Decree on December 19, 1897 authorising theexpulsion of all those engaged in anti-government activities from an area within a radius of seven and a half miles from the capital. Nearly about 600people were expelled. This led these people to spread their movement in the outlying areas. In 1889 the Meiji Constitution became operative. Prime MinisterKurado declared his faith in the supra-party government He and his other colleagues Inoue, Goto and Itagoki who had fought against the ruling oligarchyespousing the cause of liberalism and popular rights lured with ministerial berths, gave up their fight and joined the ranks of those in power. "Theirdevotion, as Chitoshi Yanaga, points out, to the ideals of popular government was not only weak and expedential but easily purchaseable." That was thenature of political parties in Japan till 1890.During the period 1890-1930, attempts were made to strengthen the political parties. After the cessation of Sino-Japanese war, the two leading oppositionparties, the Liberal Party and the Progressive Party realised "that for years they had been duped, bought and exploited by the government and it was imperativethat they abandon their useless and harmful struggle with each other and join forces in the fight against their common political enemy - the Satsuma -Choshu Clique that was in control of the government."2 They founded a party in 1898, a merger of the defunct Liberals and Progressives.Prince Ito who had opposed the formation of political parties, now declared that for good and efficient government, political parties were essentially necessary.He, accordingly, formed a party in 1900 known as the Association of Political Parties. A large number of other groups also started coming into existencewhen it appeared that a full-fledged parliamentary system would soon be established. In 1925 was established the Farmer-Labour Party. In 1922 the JapanCommunist Party was founded. A number of socialist groups also came into existence. In the 1928 elections, the four socialist parties ran 88 candidatesof whom only 8 could win. Then there were several conservative groups who commanded neither reasonable respect nor a continuous support from the electorate.The political parties during this period depended heavily on the big industrial combines which supplied them with funds to contest elections. There wasa close alliance between72the political parties and big business. Since the cabinet was not responsible to the Diet, the government became irresponsible. It was charged of beingpartial to the interests of the business magnates. There were frequent charges of bribery and corruption against the government.In between the period 1900-1930 Japan witnessed the growth of a large number of political parties. In the prewar era there were as many as 260 parties atone time. They however could not be characterised as political parties. They were just various groups and associations formed for the sake of expediency.On account of the weak party government and various charges of bribery, corruption and scandalous behaviours of the political parties a group of militaryofficers forced their entry into the Prime Minister's residence on May, 1932 and killed Prime Minister Inuki Tsuyoshi. The party rule came to an end andpower passed on in the hands of military leaders. By 1940, the political parties found their complete exit.The political parties reappeared in Japan in 1945 when with the defeat of Japan in the war, the occupation Authorities directed the Japanese Governmentto remove all restrictions on political, civil and religious liberties. The Directive also ordered the Government to release all political prisoners. Withthe release of political prisoners and removal of restrictions on political rights, the political parties reappeared on the scene. In the first GeneralElection held in April 1946, there were as many as 260 parties excluding scores of organisations which could not be strictly termed as political parties.After the first mushroom growth, four political parties - Liberal Party, the Progressive Party, the Social Democratic Party and the Communist Party finallystabilised themselves. In 1955 the Liberal and Progressive parties merged to form the Liberal Democratic Party. The Social Democratic Party has split intotwo separate Parties—the Socialist Party and the Democratic Socialist Party. Today in Japan, there are four major political parties. Liberal DemocraticParty, Socialist Party, Democratic Socialist Party, and the Communist Party.Main Feature of Japanese Party SystemThe important features of Japanese party system are:(i) Extra-constitutional Growth: As in other parliamentary democracies so in Japan, the party system is an extra-constitutional growth. Neither the Meijiconstitution nor the present constitution makes any mention of political parties. Party system is an essential concomitant of cabinet system of government.Under this system, the73government is responsible to the legislature. Elections are fought on party lines and the political party which gets the largest number of seats forms thegovernment. The ministers act as a unit, speak with one voice and have both individual and collective responsibility. Homogeneity and solidarity are themarked features of cabinet government In 1900, Prince Ito felt the expediency of forming a political party and formed the Association of Political Parties.From 1924 to 1932, party leaders headed the government. The Constitution of 1946 nowhere prohibits a party government. Since it has set up a cabinet systemof government, political parties have inevitably grown in Japan.(ii) Multiplicity of Political Parties: Japan for a long time has suffered from the evil of multiple party system. During the Meiji era there were a largenumber of parties coming into existence and making their exit from time to time. The Liberal Party, the Progressive Party, the Imperial Party, GreaterCoalition of Parties, Association of Political Parties, Constitutional Association, Fanner Labour Party, Oriental Liberal Party, Communist Party, SocialistParty, have been some notable parties of the pre -1932 period. When the constitution of 1946 became operative, the number of political parties was morethan 260. Obviously, some of these parties could not really be characterised as true political parties. They were just various groups and associations.The reasons for growth of multiple parties have been Japanese fondness of variety and narrowness leading to splits and merger, political expediency, politicalawakening, extension of suffrage, encouragement to labour unions, financial support by business magnates, growth of cities, spread of education, the growthof white collar class, emancipation of women, democratisation of economic institutions, factionalism and internal strife within the parties. The 1993 electionwas fought by as many as eight political parties, viz., Liberal Democratic Party, Socialist Party, Democratic Socialist Party, Komeito, Communist Party,Shinseito, Sakigake and Nihon Shinto.(iii) Splits and Merger: Splits and merger of the parties is a regular feature of Japan's party system. Most of the mergers have been effected by incompatiblegroups for expediency and have been marriages of convenience. Even members who spot the party have been re-admitted into the parties. Chitoshi Yanaga opinespolitical parties change their labels with the greatest of ease and without changing their policies. More often than not names are changed merely to accommodatethe newly won members or simply to give the psychological effect and illusion that the party is making a fresh start"374(iv) Long single party rule: Although Japan suffers from multiple party system, it goes to its credit that the same party, Liberal Democratic Party hasenjoyed the longest spell of power continuously for a period of 38 years. It lost in 1993 election. The Liberal Democratic Party is a conservative party.The Socialists who are in the opposition are sharply divided among themselves and there is no possibility of their coming to power. Although it may notbe said that the Liberal Democratic Party is free from factionalism, yet the Japanese voter does not see a practical alternative to it This position seemsto be similar as it is in India where the Congress Party has remained in power since 195? except for a brief spell of two breaks.(v) Absence of Mass Base: The parties in Japan are not mass organisations. They are largely associations of professional politicians and administratorswho centre their activities in Tokyo. Their prime focus of attention is the House of Representatives which provides the Prime Minister and the Ministers.They hardly go to their constituencies to nurse them and lead the people. There may be local offices in the prefectures and other areas but their contributionin the decision of party matters is negligible. In a word, the political parties in Japan are diet centred.(vi) Bureaucratization: Another important feature of the Japanese party system is the steady influx of officials into the parties and the Diet. Accordingto Kahin, "Since about 1949, the number of ex-bureaucrats in the conservative parties have increased appreciably until in recent years they represent aboutone-fourth of the members of the House of Representatives belonging to the Liberal Democratic Party."4 In four cabinets between 1957 and 1960 the ex-officialshad held about one-half of the cabinet posts. Most of the post-war Prune Ministers such as Shidehara, Yoshida, Ashida, Kishi, Ikeda, Fakuda and Ohira havehad long careers in civil service. The result is that the Japanese politics has undergone a kind of bureaucratisation."(vii) Role of Religion: Till recently, Japan was free from parties based on religion. There was complete secularisation of politics and politicians didnot use religion for political purposes. But in the sixties there emerged a new-religious political party, the Komeito Party, which is the political armof the Sooka Gakki, a military Buddhist organisation. Thus it is a Buddhist oriented party and is steadily making its impact on the Japanese politics.(viii) Localism: Localism marks another feature of party system in Japan which means that the principles and programmes of a national75party do not determine the choice of voters for a candidate to which he belongs. The voters vote for a candidate who belong to them rather than to a partyand the programme it stands for. The theory of "friends and neighbours" determines the choice and it is an important aspect of the political process inJapan.Parties and PoliciesAs told above, there are today in Japan four major political parties. Their brief discussion is as follows:Liberal Democratic PartyThe Liberal Democratic Party is the oldest party in Japan. Prior to its formation, there were the Liberal Party and the Progressive Party which go backto 1881. The present Liberal Democratic Party was established in 1955 as a result of the merger of the Liberal Party and the Democratic Party (previouslythe Progressive Party). The Party had been in power since 1955 continuously. It lost in 1993 election.The Liberal Democratic Party is a national party. Its main supporters are the rural communities, owners of industrial and commercial establishments andhigh level civil servants. The Party is headed by the President chosen at a conference consisting of party members of both the Houses of the Diet, anddelegates chosen by the prefectural branches of the party. He is elected for a term of two years and may be re-elected for another term. The other importantofficials of the Party are the Secretary General, Chairman of the Executive Council, Chairman of the Research Committee and the Party Discipline Committee.The party Headquarters are located at Tokyo.The Liberal Democratic Party stands for the preservation of the principle of popular sovereignty, respect for and protection of individual's freedoms andrights, clean government, revision of the constitution with a view to elevate the position of the Emperor as head of the state in place of the symbol ofthe state, restoration of the right to defence of the country, limited rearmament for self-defence, educational and technological development, plannedindustrial growth, expansion in foreign trade, industrial peace and workers' welfare, social security, cooperation with United Nations and other countriesof Asia.The Party suffers from factionalism and internal dissensions. It is estimated that there are 13 factions, each having its own supporters in the Diet. Wardand Macridis write, "It is difficult to describe accurately, the leadership of the Liberal Democratic Party. Superficially, the party is led by its Presidentwho, since this is normally the majority party, is also apt to be the Prime Minister of Japan. But when we look more76closely, we soon see that the Liberal Democratic Party really has no single leader. In fact, it is in some way more accurate to view it as a loose coalitionof factions united for purposes of campaign and legislative strategy than as a unified national party.5 However, despite factionalism within the party,it had been continuously in power since 1955. The main reason for its victory was that the opposition on account of multiple party system was sharply dividedand the main opposition, the Socialists, are themselves the victims of dissensions and groupism. There is no practical alternative to the Liberal DemocraticParty before the Japanese voters who out of their conservative habit of voting vote for the devil they know. In the February 1990 General Election, theParty won 275 seats out of 512 seats in the House of Representatives.The defection of 57 members from the Party wiped out Mr. Miyazawa's majority in the parliament and forced the July 18, 1993 election which it lost. In 1996elections it marginally improved its tally but fell short of majority. In July 12,1998 elections it captured only 44 seats. Hence the Prime Minister ownedthe responsibility for the defeat and stepped down.Socialist PartyThe Socialist Party is the second largest Party in the Diet. The Party was born in 1955 as a result of the unification of left and right wing Socialistswho had been long split. But they again separated in 1959 and a new Party the Democratic Socialist Party, was established in January, 1960.The Japan Socialist Party stands for readjustments of Japan's foreign relations with emphasis on the establishment of a collective non-aggression and mutualsecurity system including Japan, United States and Soviet Union (now extinct); democratisation of the present defence forces; establishment of democracyand socialisation of the economic system in order to create a social welfare state, attainment of a self sustaining economy and the development of landto absorb the unemployed. The Party believes in democratic and peaceful means to achieve political power. They want the capitalist society to be steadilyconverted into a socialist society.The Party derives its support from the working class, farmers, fishermen, small and medium manufacturers and traders, intellectuals and others belongingto the middle and lower class. It thus claims itself to be a class-mass party. At the top of the Party organisation is the national convention which consistsof delegates from different local party units and affiliated organisations. It meets every year to determine77policy matters and take stock of the political developments. The convention elects a Central Executive Committee, its Chairman and Secretary General.The Democratic Socialist PartyThe Democratic Socialist Party came into existence on January 24, 1960 as a result of split in the Japan Socialist Party. Nishio Suehiro, the leader ofthe split group issued a statement in October 1959 when the split came that "there is an urgent desire in Japan for a democratic socialist party which,while abiding by parliamentarianism, will fight for extreme, leftists and rightists and promote the general welfare of all sections of the working people,without special favour or partiality to labour union." The split group formed a party on January 24, 1960 and named it as the Democratic Socialist Party.The Party advocates opposition to capitalism and totalitarianism of both the right and the left; stands for respect for the dignity of the individual; believesin the persuit of an independent foreign policy, and wants a welfare state to be established through planned economy and socialist measures. Its organisationresembles that of the Japan Socialist Party. At the head of the Party is the Chairman of the Executive Committee with the Secretary General. The ultimateauthority is vested in the Party Congress. In the 1986 elections it could win 26 seats only whereas in 1983 it had won 38 seats. In the 1990 election itcould not improve its position appreciably.The Communist PartyThe Communist Party is an old party established in 1922, but it remained outlawed until after world war II. Since 1946 it has been contesting all GeneralElections, though its success has been modest.The supreme authority within the Japan Communist Party is the Congress whose delegates are elected by Party members through their local organisations. TheCongress meets once after every two years. It formulates the Party platform, discusses governing regulations, lays down the principles of political action.It elects the members of the central committee which meets at least once in every three years. The Secretariat of the Central Committee is headed by theSecretary-General. The Party Congress also elects a Central Control and Supervision Committee.The policy and programme of the Party are based on the philosophy and teaching of Communism. It thus stands for state ownership of the means of productionand abolition of private property. It is opposed to capitalism and advocates state socialism. It wants to attain its objective78through peaceful revolution.Other Parties: Besides the above four main political parties, mention may also be made of the Kumeito Party and New Liberal Club. The Kumeito Party is aBuddhist-oriented party which came into existence in the sixties and set up its candidates in the 1967 mid term election securing 25 seats. It is the politicalarm of the Sooka Gokkai, a military Buddhist organisation. It believes in creating a welfare state based upon respect for humanity and human socialismand establishing a clean, parliamentary and democratic system of government. It stands for an independent foreign policy and advocates for a step by stepdissolution of the U.S. - Japan Security Treaty with a strengthening of the United Nations security functions.The New Liberal Club was set up by a splinter group of the Liberal Democratic Party in 1976. The members of the group were disgusted with corruption amongtop leaders of the Liberal Democratic Party. The club contested the 1976 elections and got 17 seats, but now it has lost its popular appeal.41st General ElectionsThe 41st General Elections were held on October 20, 1996. In these elections, no single party gained absolute majority in the House of Representatives.The Liberal Democratic Party, thrown out of power in the 1993 election for the first time in nearly four decades, however, emerged as the single largestparty, but fell 12 seats short of parliamentary majority. The main opposition party Shinshinto (New Frontier Party) which is a coalition of Renewal Party,the clean Government Party, the Democratic Socialist Party and Japan New Party lost five seats, being reduced from 160 to 156 seats in the new House ofRepresentatives. The newly formed Minshato (Democratic Party of Japan) captured 60 seats, thus having done reasonably well. The Socialist Party could capture15 seats only, though earlier it had 60 seats. The Communist Party won 25 seats.The election was dominated by politicians' call to take power away from bureaucrats and revival of the economy. The final voter turn out was estimated at59 per cent, a new record low. The previous record was 67 per cent seats in the election held in 1993. It may be noted that it was the first election heldunder the electoral reforms whereby multimember constituencies were abolished and proportional representation was introduced for 40 per cent of the seats,the rest to be filled by single-seat constituencies.79From the above brief analysis of election results it is clear that Japan has entered the era of coalition government.Like its Indian counterpart, the opposition has tended to further fragment rather than to combine. Likewise, the Liberal Democratic Party has lost its longspell of power just as the Congress (I) Party has lost in India. Money politics has made deep in roads in the Japanese political system. The Lockheed briberyscandal, securities scandal, recruit scandal besides individual cases of corruption involving Toru Ishii, mayor of the city of Sendai, Shin Kanemaru, chairmanof the largest faction in the LDP and others remind one of the similar case of money politics in India. The Japanese voters like Indian ones seem to beunwilling to punish transgression after transgression on the part of scandal plagued politicians. Political corruption has been make legitimate by themere fact of its systematic perpetration. Unfortunately, the two largest democracies of Asia Japan and India are devoid of great moral leadership at present,However, it is hoped that given the indomitable nature, total discipline and exemplary dedication of the people, Japan will prevail over its politicalproblems.References1. Chitoshi, Yonaga, "Japanese People and Politics", p. 2212. Ibid.,3. Chitoshi Yanaga, Japanese People and Politics, p. 259.4. Kahin, George, Major Governments of Asia, p. 232.5. Ward and Macridis (Editors), Modern Political System: Asia, p. 73.6. Hindustan Times dated July 14, 1998. 6. Hindustan Times dated July 14, 1998.80 1THE CONSTITUTION OF CANADA1 INTRODUCTORY"The economic and social conditions of the country are generally similar to those of the United States, the political institutions have been framed uponEnglish models and political habits, traditions and usages have retained an English character."—BryceCanada was founded by the French in 1608 and ruled as a French Colony till 1763. In 1763 France surrendered it to Great Britain through the treaty of Parisresulting in the end of the seven years war in Europe. In 1791 Canada was bifurcated into two parts - Upper Canada and Lower Canada. For each part a representativeassembly was earmarked and an executive headed by the Governor. The British population mostly inhabited the Upper Canada and the French population settledin Lower Canada. The Act of 1791 however failed to satisfy both the British as well as French population. Consequently, constitutional deadlocks rockedCanada. Jealousies between the French and the British in the Lower Canada reached a climax. In the Upper Canada a privileged class dominated the administrationand the inhabitants were keen to get rid of it. In 1837 rebellion broke out in both the parts of Canada. The British Government thought it advisable tochange the constitutional set up of the country. Hence they sent Lord Durham to report on the situation. On the basis of his report, the British parliamentpassed an Act in 1840, uniting the two provinces of Lower and Upper Canada and conferring on it a responsible government.The Union Act of 1840 changed the Canadian political structure altogether. A unitary government with a bicameral legislature, comprising an Assembly anda Council was established. Upper and Lower Canada were accorded equal representation in the Assembly. The executive was to be responsible to the Assembly.The Governor2was reduced to a mere constitutional figurehead. The Act could not satisfy the British and the French population of Canada. The hegemony of the Britishmajority in the Assembly was an eyesore to French. Moreover, it was also difficult to reconcile the conflicting interests of the two groups due to racialdifferences and the scattered settlements. Hence a federal structure was considered suitable. The provinces welcomed this idea of a federation.A conference comprising delegates from various provinces was convened at Quebec on October 10, 1864. The conference framed a Federal draft emphasising theimportance of a Federation for Canada and passed seventy-two resolutions. The draft so prepared by the conference was approved by the legislature of theprovinces. It was later embodied in a Bill which was enacted by the British Parliament as the British North America Act of 1867. It is this Act which establisheda federation in Canada and conferred upon it Dominion status. Alexander Brady remarks, "The significance of a confederation is that it provided an instrumentto government which enabled the French while retaining their distinct national life to become happy partners with the British and attain a Canadian supernationalityembracing a loyalty extending beyond their own group to that of the Dominion as a "whole." To begin with, Canada consisted of only four provinces - Ontario,Quebec, New Brunswick and Nova Scotia. (The pre-confederation province of Canada became the provinces of Ontario and Quebec). New Foundland became itstenth province in 1949. Five provinces, two territories, were added during the period 1867-1914. Canada nioved fast towards self-government. The periodbetween 1914 to date is marked by constitutional advances which revolutionised the relationship of Canada to the British empire. Canada today is an autonomouscommunity within the Commonwealth of nations equal in status and is in no way subordinate to any other in any aspect of its domestic or external affairs.This change was brought about by the Imperial conferences held from time to time. The Balfour Declaration defined the position of the dominion and thesame was affirmed by the Statute of Westminster, passed in 1931. Prof C.F. Strong has given a graphical account of constitutional evolution in Canada inthe following words: "The Dominion of Canada was established in 1867 by the British North America Act which applied originally to a federation of fourprovinces, a number now increased to ten. This Act with its subsequent amendments is popularly regarded as the constitution of Canada, although in a widesense, the constitution includes a number of other statutes... as well as usages and conventions...."13Geographically speaking Canada constitutes the northern half of the North American continent (except Alaska). It is the largest of the Dominions of Commonwealth.It has a land area of 9205 square kilometres in thousands km, over forty times the area of the United Kingdom. About 24,200 people in thousands inhabitthis land.2 The population is heterogeneous in race, religion and language. 52 per cent of the total population are of British origin, 28 per cent of Frenchand 4-1/2 per cent of German birth. Twelve per cent belong to the diverse European nationalities and three per cent are of Negro and native Indian stocks.In spite of this social diversities, national feeling is inculcated in an average Canadian.Economically Canada is one of the world's main sources of wheat. She is the principal source of nickel in the world. Huge mineral deposits have recentlybeen discovered in Canada. Uranium ore mine in North Canada is of vital significance in this atomic age. Pulp and paper are the most important forest products.Canada is the largest producer of newsprint in the world, providing close to government of the world total. Ottawa is the capital of CanadaConstitution Act 1982The British North America Act 1867 was the instrument that brought about the new nation into existence. It was an Act of the British Parliament which alonecould amend it. In other words, if Canadians wanted an amendment to their Constitution, they had to ask a foreign Parliament to legislate changes in theirConstitution which was an anchronism for a fully autonomous country. Therefore, a feeling arose that Canada should be able amend its Constitution itself,without even the formal intervention by the British Parliament. True, that Parliament always passed any amendment asked for by the Canadians, but moreand more Canadians felt this was not good enough. The whole process should take place here. The Constitution should be "patriated", brought home.Attempts to bring this about began in 1927. Till 1981, they were foiled, not because of any British reluctance to make the change but because the Canadiansamong themselves could not agree on a generally acceptable method of amendment. Negotiations between the federal and provincial governments in 1927, 1931,1935, 1949, 1960, 1964,1971,1978,1979 and 1980 ended in disagreement. This impasse was ended in December 1981 when the Senate and the House of Representatives,with the approval of nine provincial governments (Quebec government excluding) passed the necessary Joint Address to4the Queen, asking that the British Parliament pass the Canada Act, and patriate the Constitution.The British Parliament acted promptly and passed the Constitution Act on March 25, 1982 which received Queen's assent on March 29, exactly 115 years tothe day Queen Victoria had given her assent to the British North America (BNA) Act, which created the Canadian federation.The Constitution Act 1982, which is the final British Act, terminated the British Parliament's power over Canada. This Act was proclaimed in Canada achievingthereby the "patriation" of the Constitution. Under the Constitution Act 1982, the British North America Act and its various amendments (23 in number)have become the Constitution Acts, 1867-1975. The Constitution Act 1982 has made four big changes in the Canadian Constitution:(1) It has established four legal formulas for amending the Constitution. Till 1982, there had never been any legal amending formula.(2) It has "entrenched" certain parts of the written Constitution, that has placed them beyond the power of Parliament or any provincial government.(3) It sets out a Charier of Rights and Freedoms that neither Parliament nor any provincial legislature acting alone can change.(4) It gives the provinces wider powers over their national resources.References1. Strong C.F., Modern Political Constitution, p. 150.2. The Oxford School Atlas. 25th Edition (1982) p. 11.52 FEATURES OF THE CONSTITUTION"In framing a Constitution for the general government the Conference .... desires to follow the method of the British Constitution so far as our circumstancespermit."—Quebec ResolutionThe Constitution of Canada consists of many laws as well as political conventions and judicial practices. But its main document is a British law, the BritishNorth America Act (BNA) of 1867. This Act has been amended 23 times in 115 years; the last amendment being the Constitution Act 1982. E.A. Driedger rightlyremarks, "In Canada there is no document that purports to set out the complete laws pertaining to the country's government. The Constitution... consists,in part, of written material and in part in convention and customs."1 The American Civil War of 1861 which synchronised with the years when federal ideawas taking its shape in Canada, also left indelible imprint on the Canadian Constitution. The Constitution, thus, is an amalgam of British and AmericanConstitutions. It adopts federal idea from the U.S.A and parliamentary democracy from Great Britain.Salient Features(a) Written: The Canadian Constitution is mostly written as British North America Act is its very base. Besides, the amendments effected in it from timeto time; the statutes passed by the British Parliament expressly referred to Canada, viz, colonial laws. Validity Act, the Statute of Westminster 1931and the Balfour Declaration; Abdication Act 1936; the British Orders-in-Council such as orders admitting the North West Territories, British Columbia andothers to the dominion of Canada; the Constitutional Laws enacted by the Canadian Parliament viz., the House of Commons Act, Alberta and Saskatchewan Acts,Bill of Rights of 1960 and several acts passed by the Canadian Parliament,6namely; those creating provinces and changing their boundaries; the Act of 1875 establishing Canadian Supreme Court, acts relating to the executive council,the legislation and elections from the written part of the Constitution. In short, the written part of the Canadian Constitution, unlike that of the American,is not a single document. It is a collection of twenty documents, thirteen Acts of the British Parliament, seven of the Canadian and four British orders-in-council.The unwritten part of the constitution is discernible through conventions which have played a vital part in the evolution of the Canadian Constitution.For instance, the relations of the cabinet to the Governor-General, the office and the position of the Prime Minister, the provisions concerning the ministerialresponsibility are the outcome of conventions which have converted Canadian autocracy into a democracy. Dawson is, therefore, of the opinion that it isa convenient but far from accurate statement to say that Canada has a written constitution.(b) Rigidity-cum-flexibility: The British North America Act was silent regarding amendment of the constitution. It contained only a provision that the provinceswere authorised to amend their constitutions though they too could not effect changes in the affairs of the Lieutenant Governors. Thus, originally theconstitution could be amended by the British Parliament on an address presented by the Canadian Parliament to His Majesty, the King of U.K. Since 1949the position underwent some changes. The Parliament of Canada was empowered to legislate with respect to constitutional matters and amend the Constitutionof Canada, except legislative authority of the provinces, the rights and privileges of the provincial legislatures and government and schools, the useof the English and the French languages and the term of the House of Commons. The Constitution Act, 1982 has now laid down the amending procedure in details.It has established four legal formulas on processes for amending the Constitution. Under the first formula, amendments must be passed by the Senate andthe House of Commons, and by the legislature of every province. This gives every single province a veto. Under the second formula, amendments must be passedby the Senate and the House of Commons, and by the legislatures of two thirds of the provinces with at least half of the total population of all the provinces.The seven provinces needed to pass any amendment would have to include either Quebec or Ontario. Under the third formula amendments dealing with mattersthat apply to one province, or to several but not all provinces7must be passed by the Senate and the House of Commons and by the legislature or legislators of the particular province or provinces concerned. Under thefourth formula amendments can be made by an ordinary act of the Canadian Parliament. Thus the Canadian constitution may be termed as flexible to the extentthat some amendments can be made by an ordinary act of the Parliament of Canada, otherwise it is a rigid constitution since under the first three formulas,provinces have been associated with the amending process.(c) A federal constitution: The British North America Act 1867 and certain subsequent amendments set up a federal structure in Canada which is evident fromthe following facts:(i) The powers have been divided between the dominions and the provincial governments. The latter have been vested with exclusive legislative control overa list of specified subjects. The Dominion (Centre) possesses exclusive legislative control over the rest.(ii) The governments of Dominion and provinces are distinct in personnel. Neither of the two governments can alter the constitution so far as the divisionof powers is concerned, (iii) The Canadian Supreme Court is equipped with the ultimate authority to resolve the conflicts of jurisdiction between the centreand the provinces. It is to maintain the distribution of powers between the federation and the provinces and act as a saviour of the Constitution. Thisreflects supremacy of the constitution - a cardinal feature of the federal constitution, (iv) Amendments to the major parts of the Constitution cannotbe made without the consent of the provinces. Though it is a federation, strong centralising tendencies are discernible in it This is obvious from thefollowing facts:(i) The scheme of distribution of powers is such that it makes the centre strong.(ii) The central government exercises numerous powers over the provinces and their governments. The Governor-General may disallow a provincial act withinone year after the receipt of the Act from the Governor of the province. This vests a sort of veto power with the Governor-General.(iii) The central government can appoint and remove the Lieutenant Governors in each province. It can instruct the Lieutenant Governor to withhold his assentto Provincial Bills or reserve them for the consideration by the Governor-General. The8Governor-General might withhold his assent to such reserved bills if he deemed fit.(iv) All important judicial appointments, are vested with the centre.(v) The members of the Senate are appointed by the Prime Minister. Equal representation has not been provided to each province in the Senate as in the U.S.A.In other words, the Senate is not the guardian of provincial interests.(vi) The residuary powers which in the U.S.A. rest with the states have been earmarked for the Dominion Government. Keeping in view these centralising tendencies,K.C. Wheare remarks" ...it is hard to know whether we should call it a federal constitution with considerable unitary modification. It would be strainingthe federal principle too far... 1 prefer to say that Canada has a quasi-federal Constitution."2 Professor Kennedy on the other hand emphasises that "Canadais a federation in essence" on the following grounds:(a) The Dominion parliament is not a delegation from the British parliament or from the provinces. It possesses full and complete power over its sphereof jurisdiction;(b) The provincial legislatures are not a delegation from the British Parliament. They possess plenary authority within limits prescribed by the constitution;(c) The provincial legislatures are not delegations from the Dominion Parliament and their status is hardly analogous to municipal bodies;(d) The provinces enjoy independence. Hence Kennedy remarks, "Both governments exercise coordinate authority and are severally sovereign within the spherespecifically or generally or by implication constitutionally granted to them."3An analytical appraisal of the present position of Canadian federation however reveals that today the Canadian provinces enjoy powers greater than thoseof the American states, though Canada opted for a federal structure with the scales highly titled in favour of the central authority. Moreover, the unitaryelements have not come in conflict with the federal principle. The, power of disallowing provincial legislation is rarely used and is confined to thoseActs which abrogate the principle of legislative power and contravene the interests of the Commonwealth. A Lieutenant Governor is no longer a tool in thehands of the Central Government. One can agree with the words of K.C.9Wheare,"... although Canadian constitution is quasi-federal in law, it is predominantly federal in practice..."4(d) Equalisation: The Constitution Act 1982 contains a provision which proclaims that (i) the national government and Parliament and the provincial governmentsand legislatures "are committed to promoting equal opportunities for the well-being of the Canadians, furthering economic development to reduce disparitiesin opportunities, and providing essential public services of reasonable quality to all Canadians; and (ii) the government and Parliament of Canada "arecommitted to the principle of making equalisation payments to ensure that provincial governments have sufficient revenues to provide reasonably comparablelevels of public services at reasonably comparable levels of taxation."The 1982 Act also provides that the Charter shall be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritageof Canada."(e) Parliamentary government: The Canadian Constitution is based on British parliamentary model. The usages and conventions have gradually transformed theCanadian monarchy into a parliamentary democracy. The Governor-General is the nominal executive head. The Prime Minister, the leader of the majority partyin the House of Commons is the real head of the government. The Governor-General acts on the advice of the Prime Minister. The ministers can be oustedby a vote of no-confidence by a majority in the House of Commons. The Provinces also follow the parliamentary system of government.(f) Supreme Court: The Supreme Court is the highest judicial tribunal in the country. Unlike the U.S.A. and Australia, lower federal courts do not existin Canada. The provincial courts like the Indian High Courts hear the disputes relating to federal and provincial laws. The supreme court can declare thelaws passed by the Dominion and provincial legislatures unconstitutional if they contravene the provisions of the Constitution. The Supreme Court of Canadais not as powerful as that of the United States. Originally it consisted of chief justice and five other judges. The number of judges went up to nine includingthe chief justice.(g) A fully sovereign state: Though Canada enjoys a Dominion status, it is a fully sovereign state for all intents and purposes. The Statute of Westminster1931 recognises the sovereign status of Canada. It is no longer a colony but is a sovereign state. It exercises full and independent control over its internaland external affairs. The Constitution Act 1982 has "patriated" the Constitution, terminating thereby the power of the British Parliament over Canada.It is a fullfledged 10member of the United Nations and owes responsibility for her acts before the highest bar of world public opinion.(h) Bilingualism: The BNA Act also established a limited official bilinguaJism. The members of the Parliament may use either English or French, the journalsof both the Houses are kept in both the languages and either language may be used in any pleading or process in courts set up by Parliament. In 1969, theParliament adopted the official languages Act, which declares that English and French enjoy equal status and are the official languages of Canada for allpurposes of the Parliament and Government of Canada.(i) A bicameral legislature: The Canadian Parliament is bicameral, the House of Commons is its lower House and Senate the upper. The lower house is a directlyelected chamber whereas the Senate is a nominated chamber. The lower house which originally consisted of 181 members, now comprises 282 members whereasthe Senate which originally consisted of 72 members now comprises 104 members. The Canadian Senate is a powerless body. It has become a mere recordingchamber and a 'me-too' machine and a 'house of echoes'. Sir Foster remarks, "Who in the street wants to know what is the opinion of the Senate upon thisor that question? Who in the press really takes any trouble to know whether the Senate has any ideas and if so what they are upon any branch of legislativeconcern or upon conditions which require the last and most united work of all in order to arrive at a successful conclusion."(j) Charter of rights and freedoms: The BNA Act did not provide any specific protection for fundamental rights like freedom of worship, of the press andof assembly. The Parliament adopted a Bill of Rights in 1960 and later adopted human rights legislation prohibiting discrimination as in area of federaljurisdiction. The Constitution Act of 1982 made the most important contribution by adding a Charter of Rights and Freedoms in the Canadian Constitution.Although Canadians have traditionally enjoyed extensive human rights, few of these rights were written into the Constitution. There was also no guaranteethat certain fundamental freedoms and rights could not be taken away or abused by the government. Incorporating the Charter into the constitution makesit much more difficult for any government to tamper with basic human rights and freedoms. The Charter gives the individuals the power to appeal to thecourts if they feel their rights have been infringed upon or denied.The liberties spelled out in the Charter include: (i) Fundamental freedoms (conscience, thought, appeal, peaceful assembly, association).11(ii) Democratic rights (The right to vote, the right to be elected), (iii) Legal rights (The right to be secured against unreasonable seizure or search, to be informed promptly of the reasons for arrest or detention, andto be represented by a lawyer, and the right to a public trial by an impartial court), (iv) Mobility rights (to enter, remain in, or leave Canada or any province).(v) Equality rights (no discrimination on grounds of race, religion, ethnic or national origin, sex, age, or mental or physical disabilities).(vi) Official language rights. (vii) Minority language education rights.All these rights are, however, "subject to such reasonable limits as can be demonstrably justified in a free and democratic society." What these limitsmight be, the courts will decide.Provision of ReferendumThe constitution provides for referendum on matters of vital political importance. A 60 point constitutional reforms formula initiated by the conservativegovernment of Brian Mulroney in conjunction with the other major national political parties, was put to vote through referendum in October 1992 and rejectedby the Canadians by a majority vote.5 On October 30,1995 the French-speaking people of the Canadian province of Quebec resorted to referendum to decideregarding sovereign status of the Province. However, they lost by a narrow margin. In 1980 also, such referendum had taken place and the move had failedby a much bigger margin. In fact, Canada saved itself from dismemberment on account of an emotional appeal of Canadian Prime Minister Jean Chretian. Heremarked "The end of Canada will be nothing less than the end of a dream, the end of a country...." The vote for separation would have left Canada in apolitical mess which might have further led to economic uncertainty.It can be concluded that the framers of the Canadian Constitution made the best use of the British and the American models and conceived of a model bestsuited to the political circumstances and environments of the country.References1. Reference paper No. 113, Information Division, Department of External Affairs, Ottawa, Canada.2. Wheare, K.C., Federal Government, p. 20.3. Kennedy, The Constitution of Canada, p. 408.4. Wheare, K.C., Federal Government, p. 21.5. The Times of India dated October 28,1992.123 FUNDAMENTAL RIGHTS AND FREEDOMS"I speak of a country where every person is free to fulfil himself or herself to the utmost unhindered by the arbitrary actions of government."—Pierre TrudeauBefore the Constitution Act 1982 the rights and freedoms of the people in Canada were not written into the constitution. Whatever rights the Canadians traditionallyenjoyed were protected by Acts of Parliament and provincial legislatures, judicial decisions and some provisions of the British North America Act. Therewas however no guarantee that certain fundamental freedoms and rights could not be taken away or abused by governments. The Supreme Court also could notprotect these rights so long as the Act taking them away did not intrude into the jurisdictional territory of the other order of the Government. Beforethe Charter of Rights was added, the written Constitution entrenched only four rights: rights of the English and French languages, the Quebec Civil law,certain rights to denominational schools and free trade among the provinces. Apart from these. Parliament and the provincial legislatures could pass anylaws they saw fit, provided they did not "jump the fence into each other's gardens." There were no legal limits on what they could do.The Charter as said earlier has radically changed the situation. It has now become much more difficult for any government to tamper with basic human rightsand freedoms. Both federal and provincial laws can now be challenged and discarded by the courts, on the ground that they violate the Charter. The individualshave the power to appeal to the courts if they feel their rights have been infringed or denied. For Canadian people it is something almost completely new,indeed revolutionary.13Freedoms guaranteedThe rights and freedoms guaranteed by the Constitution Act 1982 are as follows:(i) Democratic rights: These rights include the right of every citizen to vote for the House of Commons and the provincial legislature assembly, the rightto have elections at least once every five years, though in time of real or apprehended war, invasion or insurrection, the life of a federal or provincialhouse may be prolonged by a two-thirds vote of the Commons or legislative assembly, the right to appeal to the Supreme Court in case of violation or denialof any of the fundamental rights and freedoms and the right to criticize the government(ii) Fundamental freedoms: These include freedom of religion, thought and expression, freedom of the press, freedom to assemble and associate freely, andfreedom of conscience.(iii) Legal rights: These include all the legal rights of a citizen in a civilized society including the right to be secured against unreasonable seizureor search, to be informed promptly of the reason for arrest or detention, to be represented by a lawyer and the right to a fair, public trial by an impartialcourt.(iv) Equality rights: Every citizen has been ensured equal treatment in the law of the country and protection against discrimination on the grounds of race,national or ethnic origin, colour, religion, sex, age or mental or physical disability. There is also a provision for "affirmative action" programme toensure equality. For the first time in Canadian society, the Constitution gives equal status to women. Women's groups can now challenge laws that discriminateagainst women.(v) Mobility rights: The charter protects the principle of mobility of labour, declaring that every Canadian is free to enter, remain in or leave' Canada,and to move into, and earn a living in any province. However, the provinces retain the right to take "affirmative action" for their residents if theirprovincial employment rate is below the national average or if the social or economic backwardness so warrants.(vi) Official language rights: The official language rights make English and French the official languages of Canada for all the institutions of the governmentand the Parliament of Canada and of the New Brunswick Government and legislature. Every one has the right to use either language in Parliament and theNew Brunswick legislature, and the records and journals of both bodies must be in both languages. Either language may be used in any pleading or processin the federal and New Brunswick courts. Any member of the public has the right to14communicate with the government and Parliament of Canada, and the government and legislature of New Brunswick, and to receive available services, in eitherlanguage. The charter confirms the existing constitutional guarantees for English and French in the legislatures and courts of Quebec and Manitoba, i.e.either language may be used.(vii) Minority language education rights: These rights are twofold:(a) In every province, if a citizen of Canada has a child who has received or is receiving primary or secondary schooling in English or French has the rightto have all his children receive their schooling in the same language, under minority language educational facilities provided out of public funds, wherethe number of children "so warrants." Also, citizens who have received their own primary schooling in Canada in English or French, and reside in a provincewhere that language is the language of the French or English linguistic minority, have the right to have their children receive their primary and secondaryschooling in the language concerned, where numbers so warrant.(b) In every province, except Quebec, citizens whose mother tongue is that of the English or French linguistic minority have the right to have their childrenreceive their primary and secondary schooling in the same language where numbers so warrant. This right will be extended to Quebec only if the legislatureor government of Quebec consents.The guarantees for the English and French languages do not abrogate or abrogate from any legal or customary right or privilege enjoyed by any other language.The Charter shall be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canada." The aboriginaland treaty rights of the aboriginal people of Canada have been recognized and affirmed. The Charter's guarantee of certain rights and freedom "shall notbe construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal people of Canada." TheAct also provides for English and French versions of the whole written Constitution, from the Act of 1867 to the Act of 1982, and makes both equally authoritative.The fundamental, legal and equality rights are subject to a "notwithstanding" clause. This allows Parliament, or a provincial legislature, to pass a lawviolating any of these rights (except the equality right that prohibits discrimination based on sex) simply by15inserting in such law a declaration that it shall operate notwithstanding the fact that it is contrary to this or that provision of the Charter. This clauseexpires at the end of five years, unless it is re-enacted. In other words, when governments propose laws that limit the rights and freedoms set out inthe Charter, they must clearly state their intention and accept full responsibility for the political consequences. Many constitutional experts see thearrangement as "an ingenious marriage of a bill of rights and a parliamentary democracy".All the rights mentioned in the Charter are also "subject to such reasonable limits as can be demonstrably justified in a free and democratic society."What these limits might be, the courts will decide. This clause is similar to the one in the Indian Constitution which empowers the Parliament to impose"reasonable restrictions" on the right to freedom.The Charter of Fundamental Rights and Freedoms makes Canada a fully democratic state and places it in the same line as of United States and India. Earliera federal or provincial law could be challenged only if it intruded into the jurisdictional territory of the other order of government, but now the situationhas radically changed. Both federal and provincial laws can now be challenged, and discarded by the courts, on the ground that they violate the Charter.164 THE DOMINION EXECUTIVE"The Governor-General is like a king when he represents as a constitutional head, his history like that of his illustrious prototype has been a steady unsensational,rather reluctant, progress from vital dictatorship to virtual impotence."—DamsonAlthough the Constitution Act 1982 has made immensely important changes in the Canadian Constitution, it leaves the main structure of government, and almostthe whole of the division of powers between the national Parliament and the provincial legislatures, unchanged.In strict law the executive government is vested in the Queen" of Canada, who is also the Queen of British, Australia and New zealand. However, the Executiveof Canada comprise two parts—nominal and real. The Crown and its representative, the Governor-General, constitute the nominal whereas the cabinet formsthe real executive. The preamble of the British North America Act states - "The provinces... have expressed their desire to be federally united into ourDominion under the Crown of the United Kingdom... with a constitution similar in principle to that of the United Kingdom." Her Majesty, Elizabeth the Second,is the Queen of Canada. She is the symbol of Canada's free association with Great Britain and the other Commonwealth nations. But the functions of theCanadian Crown which are practically analogous to those of the Queen in relation to the Government of Britain are exercised by the Governor-General. CertainCanadian prerogative powers, the granting of honours and awards and the appointment of ambassadors and ministers plenipotentiary, are exercised by theQueen personally. The rest are performed on her behalf by the Governor-General. It may not be out of place to point out that in either case, the prerogativeis exercised on the advice of the Government of Canada17Governor General - his appointment and termPrior to 1890 the Governor-General used to be appointed by the sovereign on the advice of the colonial secretary - a British minister. Since 1890, the DominionGovernment began to be consulted though the procedure was not rigidly followed. Since the Imperial Conference of 1926, the appointment of the Governor-Generalis made by the Dominion Government. The Prime Minister of Canada makes the recommendation to the king or queen and it is invariably accepted. Vincent Masseywas the first Canadian to be appointed to this office. How, the Governor-General is always a Canadian.The Governor-General is appointed for a period of five years, though he can be removed earlier also by the Crown on the advice of the Dominion cabinet.The tenure may be extended for a year or so. There is no legal provision regarding age, nationality or experience of the Governor-General. He gets $ 10,000a year as salary besides various allowances and amenities consistent with the office.PowersThe powers of the Governor-General seem to be imposing but in actual practice like the Queen of U.K. he is only a rubber stamp of what the ministers do.In the words of Dawson "The Governor-General has tended to follow the same path which had been marked out a few generations earlier by his august predecessorand he now shares substantially the same disabilities. He is a legal survivor who has contrived to remain a political necessity, the once supreme chiefwhose powers have largely passed into other hands, yet who has nevertheless retained a substantial residual of his former ascendancy and importance."1His nominal functions and powers are discussed under following heads: Executive, legislative, ceremonial and judicial.(a) Executive(i) He appoints the Lieutenant Governors of the provinces and can remove them from office as well. In fact these appointments and dismissals are done bythe Dominion ministry, (ii) He appoints the Speaker of the Senate, the judges of the Supreme Court and provincial courts, commissioners, justices of peaceand officers of various other categories. These functions arc also exercised by his duly constituted ministers who are responsible to the House of Commons,(iii) He is the Commander-in-Chief of the land, naval and air force of the Dominion, (iv) He appoints representatives of Canada to the United Nations,(v) He signs treaties of minor importance which arc not signed by the Crown18directly, (vi) He appoints and removes those ordinary agents and ministers who are not appointed and removed by the Governor directly. Till 1926, he dischargedcertain ambassadorial functions on behalf of the British government and was supposed to guard the wider interests of the empire. The Imperial Conferenceof 1926 divested him of all such functions which were transferred to the High Commissioner in Canada as representative of the U.K. government, (vii) Heappoints ministers of the Dominion government and they hold office during his pleasure. It may be repeated that in a parliamentary government, the Governor-Generaldoes not have much say in the appointment and removal of ministers. They are selected by the Prime Minister who belongs to the majority party in the Houseof Commons and are not removable except on his advice, (viii) He acts as a mediator and uses his influence to solve political disputes between politicalleaders whenever an occasion arises. He possesses a reserve power of interference although the occasion for its exercise seldom arises. He can interferewhen the same is necessary to protect the normal working of the constitution. If the Prime Minister accepts a bribe and refuses either to resign or advisesthe Governor-General to summon parliament to deal with the matters the Governor-General can dismiss him from office. Likewise if a Prime Minister was allowedto dissolve the House of Commons but was returned with a minority of members the Governor-General can refuse to dissolve the House again even if he isasked to do so by the old cabinet. Such a power is rarely used but hangs like a Damocles' sword.(b) Legislative(i) He summons, prorogues and dissolves the parliament (House of Commons). In fact, it is the cabinet which decides when parliament is to be summoned orprorogued. As regards its dissolution it is the Prime Minister who seeks dissolution and without his wish, it cannot be dissolved. The Bying episode of1926 Finally decided that the right to ask for dissolution rests with the prime minister and not with the Governor-General. The former cannot refuse it.(ii) No bill passed by the Dominion Parliament can become an Act unless it is assented to by the Governor-General. He may assent to a bill, veto it orreserve it for the assent of his or her majesty. Vetoing of a bill or reserving it for Her Majesty's assent is a sheer political anachronism. This powerhas come into disuse and no bills are reserved for Her Majesty, (iii) He has been empowered to disallow a bill passed by the provincial legislature onthe ground of illegality, unconstitutionality or injustice and hardship or in defence of property or private rights. The Governor-General exercises19this power not in his discretion. He acts on the advice of the Cabinet. Otherwise the scope of disallowance of provincial legislation has been very muchcircumvented, (iv) He nominates members of the Senate. He can appoint and remove president of the Senate.(c) Ceremonial Functions(i) He has been discharging functions of quasi diplomatic agents of the country in the early days. Today his visits are merely goodwill visits to strengthenthe ties of friendliness between the two neighbouring countries undertaken with the approval of the Canadian government. Dawson, thus remarks, "It is indeedprobable that these social calls are still occasionally used to review unofficially and tentatively matters which are of common interest to the two nationsalthough their usefulness for purpose of diplomatic intercourse is obviously restricted." (ii) He opens parliament, receives foreign diplomatic agentsand is said to be Canada's "busiest host. In the words of L. Roberts, "The Governor-General receives, dines and wines foreign and domestic celebritiesat Government House, official residence at Ottawa. He pins medals on heroes and welcomes visiting celebrities. He travels the country from end to end,unveiling monuments, opening hospitals, launching charity drives... He is primarily a goodwill ambassador..."(d) Judicial(i) He appoints judges of the Supreme Court and provincial courts, (ii) As representative of the Crown he exercises Crowns' prerogatives of reprieve andpardon. He can reprieve and pardon any criminal and can remit fine, penalties of forfeitures imposed upon persons who have committed an offence againstthe Dominion of Canada. In the exercise of his prerogatives, he consults either a responsible minister or the privy council.His PositionAn appraisal of Governor-Generals' powers reveals that apparently he is all powerful. His authority seems to be onerous and powers enormous. But politicalrealities of a parliamentary system are self revealing. The head of the state acts only as a nominal ruler. His powers are actually exercised by his Cabinetand he always acts on its advice. Previously he acted as a channel of communication between the British Government and the Dominion Government but nowthe Dominion appoints its own high commissioner at London and all communications pass through him between the two Prime Ministers. The Governor-Generalis thus only a titular head. He is a nominee of the Dominion20cabinet. As such he acts according to its dictates. Dawson remarks, "The Governor-General like the king, who he represents, is a constitutional head. Hishistory like that of his illustrious prototype has been a steady, unsensational reluctant progress from virtual dictatorship to virtual impotence." Sucha change in his position was affected due to constitutional practices and conventions. The growth of national autonomy narrowed his functions and increasingdemocracy in the functioning of the government weakened his position. He cannot even be considered a counterpart of the British Queen as he does not enjoyas much authority and commands much less prestige than the Queen of England. His is a tenure post therefore he lacks the glamour of a hereditary king.He is not the head of Canadian society as the British Queen is. As such he has not to set standards in the matter of fashion or morals. He does not exercisedignifying, ennobling and sobering influence on the politics of the country as does the Queen of England. Borden rightly describes him as a nominated presidentwho can seldom appeal to popular sentiments. However, he still exercises considerable influence on the Dominion government. He enjoys the privilege ofadvising his ministers and his advice is not ordinarily flouted. He is taken into confidence in all the vital affairs pertaining to Canadian democracy.His office as a representative of the Crown is the constitutional unit of the Empire. Like the British monarch, he has the right to be consulted, the rightto encourage and the right to warn and these right are more important than the government functions.Hence it will be an exaggeration to call him a mere figurehead or a non-entity so long as he is holding this august office. Of course after his tenure,the Governor-General goes into oblivion.Privy CouncilThe British North America Act established a Privy Council to advise the Governor-General in the administration of the country. It generally consists ofall the former and present cabinet ministers, the former and present chief justices of Canada, ex-speakers of both Houses and various other prominent citizens.The Privy Councillors hold office for life. The Council does not meet as a functioning body. It meets, on a few ceremonial occasions such as the accessionof a new King or Queen. Its work is done by the Cabinet. Thus the Cabinet can be called a subcommittee of the Privy Council.The CabinetThe real power in Canada rests with the Cabinet which consists of the Prime Minister and thirty or more ministers like India in Canada also21these exists a difference between the Cabinet and Council of Ministers. A Cabinet consists of a select circle of colleagues of the Prime Minister who takepart in policy formulation. But there are other Ministers also who are not members of the cabinet. The number of such ministers has gradually increasedfrom 7 in 1943 to eleven in 1954. Since 1954 this level has been maintained. The number of cabinet ministers is generally fourteen or fifteen. Next inrank to cabinet ministers are the Ministers without portfolio, three or four who arc surely the members of the Cabinet, but are not the political headsof the Departments of Administration. Then these are the parliamentary assistants, who are members of the House of Commons appointed to relieve the CabinetMinisters of some of their less important duties. They do not head the Departments nor they have anything to do with the determination of policy. The Cabinetin Canada like its prototype in U.K. is constituted by the Head of the State, after the election is over. The Governor-General invites the leader of themajority party to form the ministry. The Cabinet so constituted believes in the principle of collective responsibility. They are not expected to displaytheir differences in public. Though the Prime Minister is free to choose his team of ministers, he has to keep in mind certain considerations while makingthe selection. He must provide adequate representation to Catholics, the French, all provinces and their interests in the country. By custom, Ontario andQuebec must have four to five ministers each, provided each province had elected enough government supporters to warrant such a member. In other wordsthe Canadian cabinet is a "federalised" cabinet. The Federal Cabinet is in fact 'a blending, a compromise' which is considered imperative in order to strengthenthe executive in a country having diverse religious, linguistic and economic interests. The ministers are conventionally drawn from the House of Commons.If they are not already members, they must win seats within a reasonable time, or resign from the cabinet. The senators also can be members of the Cabinetbut since 1911, usually, there has been only one Cabinet Minister in the Senate, and that too without portfolio, and is the leader of the government inthe Senate. The Cabinet has no "term". It lasts from the moment the prime minister is sworn in, till he resigns or dies.PowersThe powers and functions of the Canadian cabinet are the same as those of the British Cabinet. They can be described as follows:(i) Initiation and formulation of policy: All government policies are framed by the Cabinet. In the words of Dawson, "the outstanding duty22of the Cabinet is to furnish initiative and leadership, to provide the country and parliament with a national policy and to devise means for coping withpresent emergencies and future need." The policy framed by the Cabinet is ratified by the Parliament as a matter of course.(ii) Execution of policy: The Cabinet executes the policy framed and ratified by the Parliament through various departments created by it.(iii) Coordination: The Cabinet coordinates the work of different departments. Any inter-departmental differences are brought before the Cabinet for discussionand decision. The Cabinet ensures the smooth running of the administration.(iv) Initiation of Bills: Majority of Bills which are introduced in the Parliament are formulated by the Cabinet and initiated by it. The Prime Ministervirtually leads and directs the House in all matters.(v) Formulation of financial policy: The Cabinet formulates the financial policy of the government. It decides the expenditure and taxation for the financialyear. The British North America Act provides that any measure for the spending of public funds can be considered by the House of Commons only if it hasbeen first recommended by a message from the Governor-General but in practice it tells him what to do. It is supposed to be a servant of the House of Commonsyet it leads and directs the House and is in a very real sense the master of that chamber.The members of the Cabinet must speak as one on all questions of government policy; a minister who cannot support that policy must resign. Each ministeris answerable to the House of Commons for that department and the Cabinet as a whole is answerable to the House for government policy and administrationgenerally. In his way, the ministers function on the principle of individual and collective responsibility.The position of the cabinet in Canada is analogous to that of British Cabinet. It may be termed the Steering wheel of the ship of the state,' "the keystoneof the political arch". It is marked by the features of political homogeneity and ministerial responsibility- the two essential features of parliamentarydemocracy.Prime MinisterThe prime ministership is not created by law, though it is recognised by the law. The Prime Minister holds a pivotal position in the Dominion government.Like his prototype in the U.K., he is the head of the Government, the leader of the Parliament, a channel of communication23between the Governor-General and the Cabinet, and a leader of the nation. He embodies in himself the hopes and aspirations of the nation. Talking of theposition of the Prime Minister in a parliamentary democracy Prof. Greaves remarks, "The government is the master of the country and the Prime Ministeris the master of the government."His AppointmentHe is appointed by the Governor-General but the latter has no discretion in the matter. He invites the leader of the majority party after the election toact as the prime minister and choose his team of ministers. The prime minister, is, normally, a member of the House of Commons (there have been two inthe senate in 1891-92 and 1894-96). A non-member could hold the office but would, by custom, have to get elected to a seat at the earliest. The Governor-Generalaccepts the list of ministers submitted by the prime minister.His PowersThe Prime Minister is the real ruler of the country. As such his authority is onerous and powers enormous. Following are his powers:(a) Choice of cabinet and allocation of portfolios: He chooses the members of his cabinet He gives adequate representation to all the provinces and diverseinterests, however, he has to have a homogeneous team. Dawson remarks, "The cabinet has become to a unique degree the grand co-ordinating body for thedivergent provincial, sectional, religious, social and other interests throughout the nation." He can shuffle his pack as he pleases. He can ask a memberto resign if he is not pulling on smoothly with him. He can even ask the Governor-General to dismiss a minister. Hence it is said, the Prime Minister isnot only central to the formation of the Cabinet but also central to its life and death. If the Prime Minister resigns, the whole Cabinet resigns. He allocatesportfolios amongst them and he can change the same at his will.(b) Chairman of the cabinet: He presides over the meetings of the Cabinet. He controls the agenda of the Cabinet -and can refuse discussion on any mailer.He exercises the casting vote in case of a tie. This power is inherent in a chairman of the Cabinet. If differences crop up in the Cabinet meetings, heis to exercise major influence to arrive at decisions. Since he is the leader and guide of the Cabinet, every minister consults him before an importantproposal is put forward. He acts as the chief co-ordinator of ministerial functioning. Summing up powers of the Prime Minister viz-a-viz his cabinet Dawsonremarks, "The power24of the Prime Minister over his Cabinet is potentially enormous although the degree and manner in which it is used will depend in a large measure on theleader himself. He not only appoints the ministers to the Cabinet but he may also demand their resignations any time he sees fit. He presides over theCabinet meetings and his wishes will invariably receive special consideration and usually unhesitating support, yet his firmness must always be temperedwith tact and shrewdness for, the ministers are his colleagues and not his subordinates...." The prime minister is supposed to act as a leader and nota boss. He must know when to command and when to cajole, when to admonish and when to persuade.(c) Leader of the House of Commons: He is the leader of the House of Commons. As such he leads and directs the House. He makes all authoritative announcementson the floor of the House. He initiates and intervenes in debates of general importance. He comes to the rescue of his ministers in the House when theyare confronted with a rebellious members. He apportions the time of the House and submits the measures of his government for its approval. He can ask theGovernor-General to dissolve the House of Commons which is a source of considerable power both in his dealings with his colleagues and with the other politicalparties.(d) Advisor to the Governor-General: He is the principal advisor to Governor-General. He communicates the decisions of the Cabinet to the latter and adviseshim in the exercise of his prerogatives. It is on his recommendation that the Governor-General nominates the members of the Senate. The Governor-Generalcommunicates with the Cabinet through him. As such he is a channel of communication between the Cabinet and the Governor-General.(e) Patronage: In a parliamentary democracy patronage of the Prime Minister is enormous. The Canadian Prime Minister is no exception. He recommends allimportant appointments including Privy Councillors, Cabinet Ministers Lieutenant Governors of the Provinces, Speaker of the Senate, Chief Justices of allfederally-appointed courts, Senators and certain senior executives of the Public Service. He represents the country in the International Conferences andCommonwealth meetings.(f) Leader of the nation: He is the accepted leader of the nation. As such general elections are fought by the various parties in the names of their prominentleaders who are projected as Prime Minister.25His PositionAn analytical study of the powers of the Prime Minister reveals that his is an office of great pre-eminence. His powers over the Cabinet are potentiallyenormous. Hence he is rightly called as the 'keystone of the Cabinet arch',' a moon among the lesser stars',' a sun around whom the ministers revolve likeplanets.'Dawson is not prepared to accept him as 'first among equals' (primes inter pares) as 'he has no equals'. His position is certainly superior and more powerful.He is the creator, preserver and destroyer of the cabinet. Yet he is supposed to act as a leader and not a boss. He is to work with the team and not atit. A Prime Minister who treats his colleagues as his errand boys soon meets his downfall. Prime Minister Bowell attempted to intervene unduly in ministerialwork, hence seven members of his ministry rebelled against him and he was forced to his knees. Commenting on this rebellion, Dawson remarks "All membersof the Cabinet are responsible to the House and while they gladly acknowledge the leadership of the Prime Minister and will in fact usually bow to hisdecision, they can never completely surrender their individual judgements or responsibility."2It will be relevant to refer to Jennings who was of the view that the office of the Prime Minister is what the holder chooses to make it and what the ministersallow him to make of it His prestige and power are intertwined with his personality, his calibre as an administrator and his understanding. A Prime Ministerhaving a commanding personality and marked genius prevails over his colleagues and dominates the House of Commons whereas a timid Prime Minister with lowcalibre is sure to be brow-beaten by his colleagues and the recalcitrant House of Commons. Hence it is true to hold that the office is what its incumbentchooses to make it. Mr. Jean Chretien of the Liberal Party took over as Canada's 20th Prime Minister consequent to the general elections held in October,1993.References1. Dawson, R.M., The Government of Canada, p. 165.2. Dawson, op. cit., p. 222.265 THE DOMINION PARLIAMENT"...The purpose of Parliament is to keep them (the Cabinet) in touch with the public opinion and to keep public opinion in touch with the problems of government."—JenningsThe federal legislative authority in Canada is vested with parliament which comprises the Queen, a Lower House termed as the House of Commons and an UpperHouse known as the Senate. The Governor-General represents the Queen. The role of the Governor-General in the process of legislation is more a formalityas he is apt to follow the advice of the Cabinet. The Senate and the House of Commons possess different characteristics and functions. The Senate is intheory an independent legislative body and is endowed with co-equal powers with the House of Commons. In actual practice, House of Commons predominatesand the Senate is generally subservient to the house - a popularly elected chamber. Democratic canons also demand that the Senate should resist but notpersist. It goes to the credit of the Senate that it has invariably avoided a clash with the house. It has proved to be a mere recording chamber. However,a bill becomes an act when all the three—the Governor-General, the Senate and the House of Commons function jointly.The legislative authority of parliament extends to the following matters viz., the amendment of the Constitution of Canada subject to certain exceptions;the public debt and property, unemployment and insurance; the regulation of trade and commerce; the raising of money by taxation; the borrowing of moneyon the public credit and postal service; the census and statistics; militia, naval and military service, defence, the provision for the salaries of civiland other officers; navigation and shipping; sea coast and inland fisheries; currency and coinage, banking; weights and measures; legal lenders; bankruptcy,27marriage and divorce; the criminal law.1 The Canadian Parliament can make laws relating to agriculture and immigration concurrently with provincial legislaturethough in case of a conflict, federal legislation prevails.2 Another act enables the Parliament to make laws regarding old age pensions. However, sucha law docs not affect the operations of any provincial laws relating to old age pensions.3Senate: its compositionOriginally the Senate was composed of seventy-two members though with the addition of new provinces its membership went up to 104. Principle of equal representationfor all the provinces has not been accepted in Canada. Twenty-four members are taken from each of the four regions as follows: The provinces of Ontarioand Quebec send twenty-four members each and the maritime provinces of Nova Scotia and New-Brunswick send ten representatives each whereas the provinceof Prince Edward Island sends four members. The western provinces, Manitoba, British Columbia, Alberta and Saskatchewan are representated by six each.Six members come from Newfoundland, and one each from the Yukon Territory and the North West Territory. There is also a provision for four to eight extrasenators, one-or two—from the Maritime provinces, but this has never been used. The number of senators must not at any time exceed 118. The senators areappointed by the Governor-General on the advice of the Prime Minister. They hold office till the age of seventy-five unless they miss two consecutive sessionsof Parliament. Up to 1965 they held office till life, and the few remaining senators appointed before that date still retain their seats. Dr. Keith isof the opinion that membership of the Senate is the reward in old age for service to the party. Generous benefactors of parties and businesses whose presenceis expected by some great corporations to further their interest in legislation find place in the Senate. Moreover, the appointments are made on the partybasis. If a particular party remains in power for a long time and vacancies per chance crop up during its terms the Senate will consist of members drawnfrom this party. It looks paradoxical when a party is defeated in the House of Commons but still retains its hold in the Senate. Commenting on the systemof appointments, Dawson remarks, "There is no doubt that the system is most useful as an instrument of party discipline and service, but there is equally,no doubt that the chief purpose underlying these appointments is not the public good but party patronage and advantage and that this is reflected in thegeneral low regard in which the Senate is popularly held."28Qualifications of Senators(i) A senator must be at least thirty years of age. (ii) He must be a natural born or naturalised subject of the queen, (iii) He must be resident withinthe province in which he is appointed and possess property worth 4,000 dollars, (iv) In the case of Quebec, he must be a resident of the electoral districtfor which he is appointed.DisqualificationsA senator can lose his membership on account of any of the following disqualifications:(i) For two consecutive sessions of parliament, he fails to attend the Senate; (ii) he takes an oath of allegiance or makes a declaration of allegianceto a foreign power or does an act whereby he becomes a subject or a citizen of a foreign power; (iii) he becomes bankrupt or insolvent or a public defaulter;(iv) he is charged of treason or convicted of felony or of any infamous crime; (v) he ceases to be a resident of that province by shifting to some other;and (vi) he resigns his seat in the Senate.Its chairmanThe speaker of the Senate is appointed by the Governor-General. The speaker has a right to vote. In case of a tie the decision is considered to be in thenegative. He does not possess a casting vote in case of a tie.QuorumFifteen members constitute quorum.Powers of the Senate(a) Financial: The powers of the Senate have not been defined by law. The only provision is that all appropriation or taxation bills must be initiated inthe House of Commons. Hence, the Senate has vehemently established its claim to amend and even reject Money Bills on certain occasions. For instance, in1912 the Senate rejected the Money Bill. In 1923 and 1924, it rejected the proposal to build branches of the Canadian National Railways. In 1925, it drasticallyamended the bill which made appropriations to relieve sufferers from the disaster affecting the Home Bank. The House of Commons had to yield. The Senatehas urged that if it is to act as the saviour of the provincial rights, it must possess power to interfere in financial legislation. Referring to exerciseof financial powers by the Senate, Dawson remarks "...It has not been at all uncommon for the Lower House to aquiesce in the Senate's amendments whileadding the quite futile clause that the29incident was not to be considered as precedent."4 An analytical appraisal of this financial powers of the Senate reveals that the Senate does not openlyreject a pure Money Bill. It amends it but when it effects amendments which are not acceptable to the Commons it tantamounts to its power of rejection.In this respect, the Senate enjoys superior position to the House of Lords which can detain Money Bills only for a period of one month.(b) Legislative Powers: The Senate possesses coequal legislative powers with the Commons as it has not been specifically debarred from originating non-moneybills. The fathers of the Canadian Constitution wanted the Senate to act as a revising and restraining chamber to deal with possible errors or impulsesof the Commons. Since the ministry is responsible to the House of Commons and survives only if the majority in the Commons supports it, the ministers introduceall important bills in the House of Commons. Moreover, since twenties of the present century, only one minister and that too without portfolio sits inthe Senate. This further eclipses the significance of the Senate in the enactment of laws and control of policy. The ministers initiate all important legislationin the Commons where they sit as members and are in a position to defend such legislation. This gives a setback to the Senate regarding initiation of legislation.However, when bills which are passed by the Commons reach the Senate, it can propose amendments or even reject the entire bill if the Senators so desire.The Senate has however not taken it for granted that its power of rejection and amendment of a bill is absolute or independent of public opinion. It hasbeen opposing the Commons on the ground that the bills which had been rejected were not only inadvisable but lacked popular backing. For instance, it rejectedthe Old Age Pension Bill in 1926 but accepted it the next year as the Bill had by that lime received the mandate of the electorate at the New General Electionsas the party initiating the measure was returned to office. Thus as in U.K. 'mandate convention' is followed by the Senate i.e., the lords and the Senatedo not reject a Bill on which the mandate of the electorate has been obtained.As a revising chamber, the Senate has played a significant role. Ill-drafted, badly conceived, hastily assembled and unworkable Bills are thoroughly revisedby the Senate. The Senate is the reservoir of talent and experience. Hence the bills are considerably improved by the senators. They express their viewson the bills more candidly as they do not have to placate the electorates or speak to the gallery. The standing30committees of the Senate in fact examine the measures in details. Hence necessary revision of the bill is looked into, from all relevant aspects. Moreover,it lightens the burden of the overworked House of Commons by undertaking to discuss the Private Bills.(c) Investigations: The Senate has conducted investigations at different times into current political and social problems such as poverty, unemployment,inflation, old age, land use, science policy, Indian affairs, relations with the United States and the efficiency of government departments. A specialcommittee of the Senate held an inquiry in 1946 into the operation of the War Income Tax Act and Excess Profits Tax Act and did a commendable job. In fact,the Senate has lot of leisure and enough of capacity to investigate and hold inquiries demanding careful scrutiny and drastic overhauling of measures affectingsocial and political life of the country.Critical EvaluationA critical appraisal of the functioning of the Senate viz-a-viz the House of Commons and Cabinet reveals that it has neither proved an effective revisoryupper chamber nor a potent check on hasty and ill-conceived legislation. It has belied the expectations of the architects of the Constitution as it hasnot proved to be an equal partner in the legislation of the country. It does not control the purse. It cannot oust the Cabinet as in a parliamentary democracy,this is the privilege of the Lower House. It does not even represent the federal idea. The provinces of Canada have not been accorded equality in the Senate.As such the Canadian Senate has failed to play the role of a saviour of units in the Canadian federation. It has also failed to protect the interests ofthe minorities. Not only its role has been far from progressive, instead it has been reactionary and a fortress of conservatism. Invariably it has provedas a ditto chamber. It lacks even the glamour of the House of Lords which is termed as the 'Westminster Abbey of living celebrities'. The nominated membershave failed to command respect at the hands of the nation. Sir Foster remarks, "Who in the street wants to know what is the opinion of the Senate uponthis or that question? who in the press really takes any trouble to know whether the Senate has any ideas and if so, what they are upon any branch of legislativeconcern or upon conditions which require the best and most united work of all in order to reach successful conclusion?" Hence it will not be an exaggerationto remark that if the American Senate is the strongest upper chamber in the world, the Canadian Senate is the weakest.31Causes of Weakness of the Senate(a)Notion: The Canadian government is based on the British model. As such the Lower House is apt to be more powerful. In a parliamentary democracy, theLower House controls the executive. It can oust the Cabinet. This automatically reduces the upper chamber to a secondary position.(b) Nominated Character: The Canadian Senate unlike its prototype in the U.S.A. which is a directly elected body, is a nominated chamber. The nominatedchamber does not command the prestige of a representative chamber. The nomination by the Governor-General is in fact nomination by the party in power.Therefore the Canadian Senate has been portrayed as a reservoir of party patronage or the ministry's largest 'pocket borough'. A senatorship in Canadais a reward for service to the party. It has been rightly remarked, "senatorship has been invariably regarded as the choicest plums in the patronage basketand they have been used without compunction as rewards for faithful party service." Their partisan character has also detracted a bit from its strength.The nominated senators do not take interest in proposals of social and economic reforms. Hence the debates of the Senate are brief and thinly attended.The composition of the Senate is responsible for the general low regard in which the chamber is popularly held. Prof. Brady remarks, "whatever the zealand ability of appointees or the depth of their experience... they can seldom escape in the public mind from the stigma of receiving a reward rather thancall to service."(c) Long tenure: The long tenure of Canadian senators also speaks volumes for the weakness of the Senate. The long tenure till seventy-five years of ageinevitably leads to the presence of senators in the House even when they have crossed the age of genuine usefulness. Old bespectacled senators supportedby their walking sticks can be hardly expected to show enthusiasm and interest in the proceedings of the Senate. Hence quorum is only fifteen. Accordingto Dawson, "the life term has also had an unfortunate effect in the age of appointment, for no one goes to the Senate with an eye to a future career butalways with the sense of opening up the last chapter." Sir George Foster portrays the Senate as 'colourless and entering gate coming to extinction.' Gratton0' Leary has given a graphical account of this aspect of Senate in the words "The senatorship is not a job. It is a title. They think it wrong to thinkof a senatorship as a job and wrong to think of the Senate as a place where people are supposed to work. Pensions are not given for work."32(d) Exclusion from the Cabinet: In Canada members of the Cabinet are drawn from the Lower House. Since the twenties, i.e., times of Mackenzie King, onlyone member of the Cabinet is taken from the Senate. He too does not hold any portfolio. In the absence of a minister, the House neither shows initiativenor impetus, or dignity. Since spokesmen of the government do not find berth in the Senate, it becomes difficult even to elicit information. George Fosterremarks. "There is nothing more depressing. A query of information is sent to practising members of the government in a department and it is handed overto a clerk and perhaps ten days or twenty days or even a month afterwards a lifeless and unvivified memorandum is brought to this House and is laid onthe table. All the spirit has died out."(e) Lesser Powers: The framers of the constitution intended it to be co-equal in power with the House of Commons. In actual practice, it has been reducedto a secondary position. The Cabinet is responsible to the House of Commons. Money Bills can be initiated only in the House of Commons. Majority of thenon-money bills also emanate from the House of Commons. The Senate has neither any control over the executive nor on the purse of the country. Even regardingamendments, the Senate has faithfully echoed the wishes of the House of Commons. Dawson remarks, "The Senate has never taken the position that its powersof rejection and amendment are absolute and independent of public opinion. If the will of the people is clearly expressed, the Senate even though disagreeswith the wisdom of the bill will acquiesce in the popular decision." The citizens go to the extent of calling it a sleeping beauty' which neither providesan effective check against hasty and ill-considered legislation nor does it properly serve the purpose of revision. Thus in practice, it has abdicatedall its powers. Hence it fails to influence policy or effect legislation. It continues to suffer a weak position representing no one and owning no responsibility.Arthur Meighen thus wails "year after year, the services of this House are allowed to slumber for good portion of session."(f) Not a saviour of federation: The American Senate safeguards the interest of the states, big or small. It accords equal representation to the states.This is not the case with the Canadian Senate. It does not give equal representation to all the provinces. However, the senators are not elected by thepeople of the provinces. They are nominated by the Governor-General on the advice of the Prime Minister. As such the senators do no regard themselves responsibleto the provincial legislatures or to the voters. Thus, the very method of appointment of33the senators reflects that perhaps it was not intended to perform a strict federal, function. Dr. Keith remarks, "The Senate obviously from the outset wasnot based on the federal principles, for apart from the lack of equality of representation of the provinces, the mode of appointment secured that the membersselected are not likely to champion provincial rights and the Senate has never shown any special activity in this regard." Professor Mackay also is ofthe view that Senate "has no consistent record as an upholder of the rights of the provinces and the party lines have usually proved stronger than thoseof the section and provinces affected."Owing to the reasons stated in the preceding paragraphs, the Canadian Senate has been reduced to a mere recording chamber. It has ceased to be a revisorychamber, instead it has become a divorce court. Divorce bills may go up to forty or fifty in each session and the precincts of the Senate can be seen fullof women lobbying for or against divorce. Thus it has become almost a cipher surrounded with the trappings of importance. In the words of Marriot "....Consequently,it has never possessed either the glamour of an aristocratic and hereditary chamber or the strength of an elected assembly or the utility of a Senate representingthe federal as opposed to the national idea. Devised with the notion of giving some sort of representation to provincial interest it has from the firstbeen manipulated by party leaders to subserve the interest of central executive." Dawson accepts the role of the Senate to be of moderate and not exceptionalservice. He however, recognizes its alertness in legislation of private bills pertaining to protection of private property rights and public interestsagainst the attacks of predatory corporations. Professor Brady also does not underestimate value of the Senate. He considers the senators who are men oflong years of legal, business or administrative experience, more impartial in discussing bills and pursuing their tasks in various committees with impressivecare. The investigations by the senate on public problems have often led to changes in legislation or government parison with American SenateThe main points of comparison between the Canadian Senate and the American Senate are: (i) The Senate in America consists of equal number of representatives from each state; the Canadian Senate does not. (ii) The Senators in America are elected directly by the people of the state concerned; in Canada they are nominated by the Governor General on the adviceof the Prime Minister.34(iii) The Senators in America are elected for a term or six years, one-third retiring after every two years; in Canada the Senators remain in office tillthey attain the age of seventy five years.(iv) The Vice President of the United States is the presiding officer of the Senate; the Speaker of the Canadian Senate is appointed by the Governor-General.The American Senate's Chairman has no vote, except in case of tie, but the Canadian Speaker has a right to vote and he does not possess a casting vote.(v) The American Senate possesses vast powers on account of which it is called the strongest second chamber of the world. The Canadian Senate stands nocomparison in this regard.(vi) The American Senate strongly guides the interests of the federating units, the Canadian Senate has failed to act as the saviour of Units in the federation.House of CommonsThe British North America Act 1867 had provided that the House of Commons shall comprise 181 members. On account of increased population the number of representativesin the House, has been varying from time to time. In 1993 Elections it consisted of 295 seats whereas in June 1997 Elections this number rose to 301. TheLiberals won only 155 seats—a razor-thin majority. P.M. Cheritan finds himself in a precarious position on account of a slender majority.6 The total numberof members and the representatives of each province is readjusted after each decennial census. Broadly speaking, no province can have fewer member in theHouse of Commons than in the Senate. Every adult male or female who attains the age of eighteen is entitled to vote. He should be a citizen of Canada.He is supposed to reside in Canada twelve months preceding the election. Ordinarily he is required to be residing in the electoral district on the dateof issuing the writ authorising the election. The qualifications for the representatives are not specified in the British North America Act but have beendefined by the statute. The members should be Canadian citizens, and at least twenty-one years of age. Property qualification no longer exists since 1894.All are single-membered constituencies. Members are elected broadly speaking in proportion to the population of each province, but no province can havefewer members in the House of Commons than in the Senate. The total number of members and the representation of each province is adjusted after each decennialcensus. A member of the Canadian House of Commons is allowed to resign his seat. A member is allowed twenty-one days unexpected absence. Absence from thesitting is penalised.35The tenure of the Commons is five years unless dissolved earlier. Its tenure can also be extended in time of real or apprehended war invasion or insurrection,by a two-thirds vote of the Commons.The OppositionThe Opposition finds a prominent place in the Constitution. The party getting the second largest percentage of votes becomes the official Opposition. Ifthe Opposition succeeds in overthrowing the government, its leader forms the government or becomes the Prime Minister. The position of the leader of theOpposition is not recognised in the British North America Act. It received statutory acknowledgement in Canada in 1927. The leader of the Opposition getsa regular salary. Since 1963, an annual allowance is given to such member of the House of Commons who is the leader of a party that has a strength of twelveor more members in the House. The Reform party which captured 60 seats in June 1997 Elections enjoys the status of her Magesty's opposition.The SpeakerAfter the election, the Governor-General-in-Council summons the House. After the oath taking ceremony, the members proceed to elect the speaker. Conventionallythe speaker's name is proposed by the Prime Minister and is seconded by a member of the cabinet and invariably the Opposition parties also approve of thename.In the U.K., the speaker of the preceding Parliament is normally elected as the speaker irrespective of any party coming into power. In Canada a new speakeris chosen for each parliament who is apt to belong to the majority party. Though there are cases (in 1979) where a speaker of one party-carried on aftera change of government, and (1957) where the government was ready to support a member from one of the minor parties. By custom, the speakership alternatesbetween French and English-speaking members. If the speaker is chosen from the English-speaking members, the deputy speaker is chosen from the French speaking,and vice-versa. Sometimes the deputy speaker is chosen from the Opposition.The duties of the speaker are as imposing as that of his prototype in the U.K. He presides over the deliberations of the House, maintains decorum, putsquestions to the House, reads any motion or resolution. He is responsible for the protection of the person of the members from insult and injury in theHouse. He ensures that the debates are conducted in accordance with the rules and practices of the House. He is the guardian of the powers, dignities,liberties and the privileges of the36House. He possesses a casting vote in case of a tie. He is expected to be impartial, and as firm in enforcing the rules against the Prime Minister as againstthe humblest Opposition back-bencher.Procedure for Bills in the HouseThe basic procedure for the passage of public bills in the U.K., and Canada is the same. Like the U.K., Canada also distinguishes between government Bills,Private Members Bills or Private Bills. A Bill receives three readings in the House. The first reading, at which time bill is tabled is purely formal.During the second reading, the House gives the bill consideration in principle and if satisfied, refers it to a committee, where it is dealt with clauseby clause. Supply and Budget Bills and such others as the House thinks fit are referred to the Committee of the Whole. All other bills are sent to oneof the twenty Standing Committees. The Committee reports the Bill to the House, with or without amendments and at this stage any member may propose amendments,which are debatable, then comes a third reading. If the bill is passed then it is sent to the Senate, where it goes through much the same procedure. Incase of difference between the two Houses, a conference of the representatives of both the Houses is convened to bring about a reconciliation. If agreementis not reached, the Governor-General may nominate four to eight senators to resolve the deadlock. In the U.K., also provision for creation of new peersfor resolving deadlock exists. After the Bill is passed by both the Houses, it is sent for Royal Assent.The Canadian committee system resembles that of the British committee system. The Committee of the Whole House, the Select Committees, and the StandingCommittees exist in Canada. The procedure followed therein also is the same.Functions of the HouseThe powers and functions of the House of Commons are more or less the same as that of the British House of Commons. They can be discussed in the followingcategories.(a) Legislative: The House of Commons possesses the power to make laws on all the federal matters and on the subjects not enumerated in the provincial list.It may not be out of place to point out that the federal power to legislate on the residuary matters is not absolute. The federal residuary power can beexercised only when the interest of Canada as a whole is involved. On matters which are in essence local or provincial, the provincial legislature makeslaws. The federal residuary power thus stands curtailed by the provincial residuary power to make37laws on matters of local importance. Theoretically both the Houses of Parliament have coequal legislative powers but in actual practice on account of itsdemocratic character the House of Commons predominates.(b) Financial: In this sphere, the House enjoys superior position. Even constitutionally money bills must originate in the House. The rules of procedurelay down "All aids and supplies granted to His Majesty by the Parliament of Canada are the sole gifts of the House of Commons and all bills granting suchaid and supplies ought to begin with the House as it is the undoubted right of the House to direct, limit and appoint in all such bills, the ends, purposes,considerations, limitations and qualifications of such grants which are not alterable by the senate." Practically speaking, the senate has not stood inthe way of the House of Commons so far as Money Bills are concerned. Hence it can be said that the House of Commons controls the purse of the nation.(c) Control over executive: Like its British counterpart the House of Commons controls the executive. The cabinet is responsible to it. It can remove theministry through a vote of no confidence or by rejecting an important Bill initiated by the ministers. It can corner the ministers by putting questionsto the ministry and moving adjournment motions. The members can address questions to the Cabinet Ministers on three days in a week concerning various phasesof public affairs.(d) Miscellaneous functions: The House educates and leads public opinion. It keeps the cabinet in touch with public opinion. The House talks, argues, investigates,opposes and decides. In so doing, it arouses public interest and helps to create a sound public opinion. It serves as the nation's committee of grievances,where the members hailing from all parts of the country and people belonging to different shades of opinion, languages, religion and occupations meet andthrash out the national problems. It is the House of Commons where national talent is exhibited and members make their mark.The House enjoys wide powers. It is the "grand inquest of the nation," the organised medium through which the public will find expression and exercise itsultimate power. It forms the indispensable part of the legislature and it is the body to which at all times the executive must turn for justification andapproval. It is a unique institution "which presents in condensed form the different interests, races, religions, classes and occupations, whose ideasand wishes it embodies with approximate exactness". In the land of diversity, as Canada is, it brings unity. It is "the nation's committee of grievances38and its Congress of opinions." However, the Canadian House of Commons is not as important and as powerful as the British House of Commons. Canada beinga federation, the provincial matters do not fall within the purview of the House of Commons. Besides, British Parliament which practically means the Houseof Commons is sovereign but the laws passed by the Canadian Parliament can be declared ultra vires. As such it cannot claim sovereign position.References1. Section 91 of the British North America Act, 1867.2. Section 95.3. British North America Act.4. Dawson, op. cit., p. 349.5. Hindustan Times dated June 6, 1997.6. Ibid.396 THE JUDICIAL SYSTEM"In Canada a judge is placed in a position where he has nothing to lose by doing what is right, and nothing to gain by doing what is wrong..."—DawsonCanada has an integrated judicial system though there are two sets of courts - the provincial and the federal. The provincial and federal courts administerjustice in their respective areas.The Provincial CourtsThe Provincial courts are established by provincial legislation. Though their names vary from province to province, nevertheless, their structures are roughlythe same. The judges of the provincial courts, from county courts up, are appointed by the Governor-General on the advice of the cabinet The judges holdoffice during good behaviour and retire at seventy-five. Their salaries, allowances and pensions are fixed by the dominion parliament.The Provincial courts hear cases concerning both provincial and federal laws. They also hear election petitions and entertain appeals from the lower courts.The provincial government can also seek advice on any point of law from the provincial supreme court. The provincial supreme courts and also other courtswork under both dominion and provincial control. The province constitutes, organises and controls the courts and determines the procedure in civil matterswhile the dominion appoints, pays and removes judges.County Courts: In each county there is a county court. The county judges are appointed by the Governor-General-in-Council during good behaviour. The provincecontrols the Constitution, organisation and maintenance of the county courts while the Dominion possesses the power of appointing, paying and removingthe judges. The county or40district courts have intermediate jurisdiction and decide cases involving claims beyond the jurisdiction of small debts courts, although they do not haveunlimited monetary jurisdiction; they also hear criminal cases except those of the most serious type. In addition to being trial courts, county and districtcourts have a limited jurisdiction to hear appeals from decisions of magistrates' courts. The province of Quebec does not have the system of county ordistrict courts.Minor Provincial Courts: Such courts are entirely under provincial control regarding organisation, maintenance and also appointment, pay and conditionsof service. The term of the judicial officers of these courts is at pleasure. These courts take up cases pertaining to the estates of deceased personsand civil cases concerning minor personal actions, breaches of contract, debts, etc. involving small amounts.The Magistrates' courts are established under the Magistrates Act for the trial of designated minor criminal offences and a few civil cases under specialstatutes. In large towns and cities minor courts such as Juvenile Courts and Family Courts, Coroners' Courts and Courts of Arbitration also exist.The Federal CourtsSection 101 of the British North America Act empowers the Parliament to provide from time to time for the constitution and organisation of d general courtof appeal for Canada and for the establishment of any additional courts for the better administration of Canadian laws. The Parliament has so far establisheda Supreme Court, Exchequer Court now called the Federal Court and certain miscellaneous courts, such as the Tax Review Board, the Martial Appeal Courtand the Immigration Appeal Board.Supreme Court: The Supreme Court is at the apex of the Canadian system of courts. It was established in 1875 and was vested with appellate authority bothin civil and criminal matters pertaining to the Dominion. To begin with, it consisted of a Chief Justice and five other judges. The number was raised tosix in 1927 and now it consists of nine judges of whom three at least must come from Quebec. Presently, the court is governed by the Supreme Court Act1962. The judges are appointed by the Governor-General on the advice of the national cabinet. They hold office during good behaviour. They are made toretire at the age of seventy-five. They are removable by the Governor-General-in-Council, following an address of the Parliament of Canada. The court sitsat Ottawa. The chief justice draws a salary of 25,000 dollars a year whereas other judges get 20,000 dollars a year.41Its JurisdictionAppellate: The supreme court possesses mainly appellate jurisdiction. Firstly, it hears appeals from the provincial courts in civil cases when the valueof the case in dispute exceeds 10,000 dollars. Secondly, if a question of law is involved, an appeal may lie to the Supreme Court. Thirdly, an appeal mayalso be brought from any other final judgement with leave of the highest provincial court. If the latter court does not grant such leave, the supreme courtmay grant it. Fourthly, in matters where an interpretation of the constitution or the validity of the Dominion or provincial legislation is involved, anappeal may lie to the supreme court. Fifthly, in criminal matters, an appeal may be taken if the decision of the provincial court of appeal is not unanimous.Sixthly, the Supreme Court hears appeals in cases of controversial elections. Seventhly, appeals lie to the Supreme Court from the Canadian Exchequer Courtand the Board of Transport Commissioners.Advisory: Unlike American and like the Indian Supreme Court, the Canadian Supreme Court possesses advisory jurisdiction. It has to render advice to theGovernor-General in respect of any question of law or fact on a reference being made to it. The opinion of the Supreme Court is not, however, binding uponthe Governor General nor is it binding upon the judges in any specific case.It will not be out of place to point out that up to 1933 appeals in criminal cases could be taken to Judicial Committee of Privy Council though they werestopped in 1933. Likewise till 1949, appeals from civil cases could be carried from the decisions of the Supreme Court to the Judicial Committee of thePrivy Council. With the passage of an Amendment Act in 1949, the Parliament of Canada was empowered to legislate regarding constitutional matters and througha statute it abolished all appeals to the Privy Council and made the Supreme Court a court of final appeal in all cases. Five judges normally sit togetherto hear a case, although on important matters it is customary for all judges of the court to sit.The Federal Court: In 1970, the Exchequer Court of Canada, established in 1875, was replaced by the Federal Court. This Court consists of two divisions,Trial and Appeal, with a total of 12 judges. They hold office during good behaviour and are removable by the Governor-General on address of the Senateand House of Commons. There is now a retirement age at 70 for these judges.The court possesses original jurisdiction along with provincial courts, in cases involving the revenues of the Crown. It has exclusive42jurisdiction over suits brought against the Crown in federal affairs. It also deals with claims against the Crown for property taken or any public purposeor adversely affected by the construction of any public work, and claims against the Crown arising out of any death or injury to a person or his propertydue to the negligence of any officer or servant of the Crown while at work. It (Its trial Division) also hears cases regarding patents, copyrights, customsand excise, income tax, trademarks and industrial designs. It exercises jurisdiction over certain category of railway suits also. It has two divisions,a Trial Division and an Appeal Division; the Appeal Division hears appeals from decisions rendered by the Trial Division and by many boards and agencies.The Federal Court also acts as a Court of Admiralty. In this capacity, it possesses original as well as appellate jurisdiction.An appeal lies to the Supreme Court from any judgement of the federal court of appeal with the leave of the court when in the opinion of the Court of Appealthe question involved in the appeal is one that ought to be submitted to the Supreme Court for decision.It may be emphasised at the end that the judiciary in Canada is independent and impartial and is held in high esteem. The judges are not answerable to Parliamentor to the executive branch of the government for decisions rendered. No judge, whether federally or provincially appointed, may be subjected to legal proceedingsfor any acts done or words spoken in judicial capacity in a court of justice. The country is administered according to the rule of law and the litigantshave faith in the impartiality, independence and integrity of the judges.437 POLITICAL PARTIES"Political Parties in Canada are really loose federations of local, provincial or state machines held together chiefly by a common desire to share in thepork barrel."—Frank H.UnderhillThe Canadian party system is like other institutions of Canada modelled on the British system. Canada like Britain has a bi-party system. They are termedas liberals and conservatives (now termed as progressive conservatives). Besides these two main political parties, some small groups have also come upviz. the Co-operative Commonwealth Federation, the Labour, the United Fanners, the Social Credit, etc. They are more of groups rather than parties andget very few seats in the Canadian Parliament.The main features of the party system in control are: First, the Canadian political parties are not so well organised as the English political parties.They resemble the American party system. They are loosely organised and without any permanent central organisation. At the time of election they assembletogether to capture as many seats as they can. Frank H. Underhill rightly remarks, "They are really loose federations of local, provincial or state machinesheld together chiefly by common desire to share in the pork barrel." On account of social and linguistic diversities in Canada, the political parties representdiverse interests. But history does not record any instance of open rupture in the parties. No clear cut line of demarcation can be drawn between theirprogrammes. Second, there is no permanent division of affinities amongst the people in the case of political parties. People from different walks of life,viz., farmers, merchants, manufacturers, shopkeepers, professional men, rich and poor can be found in the two major parties. Party membership is the resultof chance. Third, the party feelings in44Canada do not introduce bitterness in society. No party in Canada can go very far, unless it derives support from two or more regional areas. Thus eachparty has to reconcile the widely scattered aims and interests of a number of these areas and bring together people possessing divergent interests andbeliefs. Fourth, Canada has consistently followed the two party system. It is only during the last forty years or so that third parties have emerged. Theemergence of these parties now threaten the two party system in Canada.The Progressive Conservative PartyThe Progressive Conservative Party goes back to a coalition of Moderate Conservatives and Moderate Reformers in the province of Canada in 1854, six yearsafter responsible government had been formed. It was broadened into a national party in 1867 when the first national Prime Minister, Sir John A. Macdonald,formed the government. The present name was adopted in 1942. In May 1979 and February, 1980 General Elections it captured 136 and 101 seats respectively.In the 1993 General Elections the party lost badly when its strength fell from 155 seats to a mere two which was the worst performance in the Canadianhistory.The party stands for centralisation. It upholds the cause of the propertied, commercial and industrial interests. The centralising influences and the policyof unification of people of diverse interests finds expression in the national policy of a protective tariff, in the construction of the trans-continental-railway,and many such policies which were directed towards that end. Economic nationalism propagated by the party proved a laudable device for welding the peopleinto a community of different interests and aspirations. Till today, the policy of the party remains the same. Its current programmes comprise schemesof social insurance, abolition of child labour, fixing of minimum wages and maximum hours of work.The Liberal PartyThe Liberal Party has its roots in the pre-confederation reform parties which struggled for the establishment of a parliamentary responsible governmentin the 1840s'. It advocates low tariff and does not suggest the interference of the state in the economic life of the country. It champions the cause ofthe provinces and stands for the sovereign status of Canada within the British Empire. It advocates trade agreements with the members of the British Empireand also with the foreign countries on the basis of reciprocity. It has been rightly described as the champion of political nationalism. Its strength isespecially great in Quebec. The45first liberal government came in power in 1973. In 1980 Elections it won 146 seats out of 282 in the House of Commons. The passage of the constitution Act,1982 was the triumph of the Liberal Party under the leadership of Prime Minister Pierra Trudean. In the 1993 elections it swept to victory getting 177seats in the 295-Seat House of Commons. In the 1997 Elections it again came to power but with a reduced majority of 155 members only in the House of 301members.The Farmers PartyThe farmers have always posed a challenge to the urbanites. The Farmers Party is the champion of the rights of this agrarian class which formed many agrarianparties in the provinces though always aiming at unification of the agrarian class. The Farmers Party suggests the immediate abolition of tariff on manyraw-materials or foodstuffs. Its preferences have been graduated taxation on personal and corporation income and large estates, assistance of land settlementfor veterans, public ownership of coalmines and all public utilities. It also advocates several public reforms viz. allocation of patronage, Senate reforms,proportional representation, Initiative, Referendum and Recall. The Fanners Party made rapid progress in Ontario in the provincial elections in 1919 anda Farmer-Labour government came into existence. In the Dominion election also, the Farmers Party could capture sixty-five seats in the House of Commons.But it was a transient phase. In 1926 they were left with only twenty-five seats in the House. They split into three groups. The Farmers Party has nowbeen reduced to only a provincial party.The Labour PartyThe Labour Party in Canada has not played as active and significant role as the Farmers Party. Prior to 1939, the Labour Party could capture only very fewseats in the provincial legislatures as their labour movement was industrially and politically weak. The Labour Party suggests nationalisation of all financialagencies, transportation, communication, public utilities and health services, social insurance covering old age, illness, accident and unemployment, freedomof association, nationalised crop insurance and abolition of the Senate. It also advocates abolition of immigration laws and stands for equal rights ofcitizenship for all irrespective of sex, class, origin or religion, restoration of civil liberties, and the right of labour to organise itself. The partyemphasises repeal of taxes on the necessaries of life, taxation on land values, exemption of small income from income tax, disarmament and opposition toall forms of militarism, and professional representation.46The New Democratic PartyThe New Democratic Party came into being in 1961 when the Canadian Labour Congress and the Cooperative Commonwealth Federation Party managed to form theNew Democratic Party. The Cooperative Commonwealth Federation Party was formed in 1932 by a group of farmer and labour parties in the Western Provinces.The C.C.F. envisaged a new social order aiming at socialist programme and sweeping economic changes. Since World War II it made substantial progress. Itcould capture office in the province of Saskatchewan. It formed the official opposition in several provinces. It was an active aggressive group in theHouse of Commons. It derived inspiration from the British Labour Party and portrayed itself as a socialist party. Its aim was nationalisation of industriesand strict regulation of private enterprises, its goal. It urged repeal of immigration laws and stands for equal rights of citizenship for all irrespectiveof sex, class or religion or origin; restoration of civil liberties and the right of labour to organise itself. The party won over the labour in the wholeof Canada except Quebec. The farmers who favoured it in a number of provinces. The programme of the New Democratic Party remains the same. In May 1979and February 1980 General Elections it captured 26 and 33 seats respectively.Summarising, the Canadian political system does not discourage the formation of political parties, rather it recognises their value in a democracy. TheOpposition is officially recognised. Its leader gets the same salary as a cabinet minister. The leader of any party which has at least twelve seats alsogets more salary than a member of Parliament. These parties get money from public exchequer to fight elections and for research.478 CANADIAN FEDERALISM"Canada is a federation in essence."—Prof. KennedyThe framers of the Canadian Constitution (the British North American Act, 1867) opted for a federal form of government though they were not led by a narrowtheory of federalism. They considered federation indispensable for a country having scattered nature of settlements inhabited by people having social differencesbut they were not oblivious of the fact that a true federal system might weaken the national unity. The American civil war was a determining factor. Aunitary system under the Union Act 1840 was tried but was found wanting. Hence the sober statesmen realized that under the political circumstances prevalentin the country, a federal union alone could satisfy the citizens of two Canadas - English and French and guarantee the existence of their national unityand solution of their administrative problems. However, the proposed federation was not to be wedded to any single pattern or theory. The autonomy of theprovinces was not to be at the cost of a strong centre. In the words of Sir John MacDonald "The true principles of confederation lay in giving to the centralgovernment all the principles and powers of sovereignty and that the subordinate individual states should have no powers but those expressly bestowed onthem. We should thus have a powerful central government, a powerful central legislature and a decentralised system of minor legislations for local purposes."Federal aspects of the Canadian FederationProfessor Kennedy refers to four features of the Canadian federal system which are as follows:(a) The Dominion parliament is not a delegation from the Imperial parliament or from the provinces. It has full and complete powers48within its own jurisdiction, (b) The provincial legislatures are not delegation from the British parliament, (c) The provincial parliaments are not delegationfrom the Imperial parliament, (d) The provinces remain independent and autonomous.Thus Canada is essentially a federation. The central government is not at all a delegation. The provincial governments are in no sense municipal. The nationaland local governments exercise coordinate authorities and are sovereign within their respective spheres. Besides, like other federations the Canadian constitutionis also written. The Canadian constitution divides the subjects into four divisions - (i) the subjects exclusively assigned to the Dominion (29 in number)are military and naval defence, public finance, trade regulation, postal service, currency, coinage, banking, navigation, law relating to crimes, bankruptcy,copyright, patents and nationalisation etc.; (ii) the subjects which have been exclusively entrusted to the provinces (16 in number) are property and civilrights, education, control of public works, hospitals, jails, general civil law and procedure etc.; (iii) subjects of concurrent jurisdiction like agricultureand immigration are there and in case of conflict Dominion law prevails; (iv) education with respect to which the provincial legislature may exclusivelymake laws. However, certain restrictions have been imposed to safeguard the interests of the minorities. Besides these four divisions, the residuary powers,if any, are to rest with the centre unlike USA where residuary powers lie with the states. This reflects centralising tendency in the Canadian constitution.Evidently, the Canadian constitution has not followed a set pattern or model for distribution of powers between Centre and the units. It has adopted a schemesuiting its interests and requirements.Centralising Features (Unitary bias)As already said, the fathers of the Canadian Constitution were not wedded to the narrow idea of federalism. This is obvious from the centralising featuresingrained in the Canadian Federalism. They are as under:(a) Residuary powers have been given to the centre. All powers not explicitly given to the provinces were granted to the Dominion government.(b) The Lieutenant governors of the Canadian provinces are appointed and dismissed from office at the discretion of the central government. In the USA,the governors are popularly elected. In Australia they are the nominees of the Crown. In Canada, the49Lieutenant governors are regarded as the instruments of the Dominion government. Their appointment and removal, as already said, rest with the central government(c) The Governor-General, on the advice of responsible ministers can disallow a provincial Act within one year, after the receipt of the Act from the governorof the province. This has tightened the hold of the central government over the provinces. In India and the USA, this power belongs to the Supreme Courtand not the federal government. The Supreme Court alone can declare a law ultra vires.(d) The Senate does not represent the provinces in the real sense. The members of the Senate are nominated by the Governor-General for life. The Senatorsin the USA are elected by the people of the state. Besides every state, big or small, is accorded equal representation. Hence the Senators fight the battlefor their respective states on the floor of the House. No such role has ever been played by the Canadian Senators.(e) The subjects given to the provinces are purely of a local nature. Some powers which had been entrusted to the states in the USA, such as criminal law,marriage and divorce, have been assigned to the Centre in Canada.(f) The important judicial appointments in the provinces were entrusted to the Dominion government(g) The provincial governments receive substantial financial grants for the federal government to finance their projects.The above facts make it clear that the Canadian federation is a Federation with a strong unitary bias. It departs radically from the Federal principles- division of power between the centre and the units; and two sets of governments with their respective spheres of jurisdiction as coordinate and independent.The Canadian provinces, rightly opined by Dawson, are inferior bodies possessing little more prestige and authority than inflated municipalities. CharterTuppers' remarks are more revealing. He said, "We propose to preserve the local governments in the lower provinces because we have no municipal institutions."Probably the intention of the architects of the constitution was that the provincial governments in Canada be subordinate to the central government ratherthan coordinate with it.No doubt the unitary elements in Canadian federation predominate, yet its federal structure cannot be altogether denied. Prof. Wheare is also of the viewthat in spite of these unitary features "the federal principle is not completely ousted." He does however admit this "it is hard to know whether we shouldcall it a federal constitution with50considerable unitary modifications, or a unitary constitution with considerable federal modifications. It would be straining the federal principle too far...for this reason, I prefer to say that Canada has a quasi-federal constitution." We may therefore conclude that for all practical purposes, Canada has afederal government. Its unitary elements are being so worked that they do not conflict with the federal principle. The provinces do enjoy vast politicaland legislative authority. They are practically autonomous. The Lieutenant governors no longer dance to the tune of the central government. ProvincialBills also are sparingly disallowed. Under the Constitution Act 1982, the amendments in those parts of the constitution wherein provinces have an interestor are to be affected cannot be made without their consent. The Constitution Act of 1982 also could be possible only when the federal government receivedsubstantial measure of provincial consent. It was only after more than half a century of federal provincial conferences and negotiations that the Constitutioncould be "patriated." Besides the well accepted practice of using federal revenues to help the less wealthy provinces and the principle of equalizationhave been enshrined in the New Constitution. Evidently, it benefited directly the provinces. A recent rejection of constitutional reform plan through Referendumreflects that "majority of Canadian do not particularly care about their country staying together."Formerly the words of Kennedy, "Canada is a federation in essence; that the central national government is in no sense a delegation; that the provincialgovernments are in no sense municipal and the national and local governments exercise coordinate authority and are severally sovereign within the spherespecifically and generally or by implication constitutionally granted to them" seemed meaningful. However, not they seem illusory. Still break up of CanadianFederation cannot be envisaged as yetPoints of Comparison with American FederationAlthough both the Canadian and American Federation came into existence in a similar way, the erstwhile independent provinces/states uniting to form a federation,the similarity ends there. The major points of difference are the following:(i) The scheme for distribution of powers is different. The American Constitution enumerates the powers for the Congress and leaves the residuary powerswith the states. The Canadian Constitution divides the powers into three lists — powers exclusively assigned to the Dominion, powers exclusively51assigned to the provinces and concurrent powers. The residuary powers rest with the Dominion.(ii) The Governors of the States in the USA are directly elected by the people of the concerned state; in Canada, they are nominated by the Governor-Generalon the advice of the Dominion government.(iii) The Canadian Governor-General can disallow a Provincial Act within one year, after the receipt of the Act from the governor. The American Presidentdoes not possess any such power, (iv) The American Senate consists of equal number of representatives for each of the states; the Canadian Senate is notso constituted. Its members vary in number from province to province and are nominated by the Governor-General, in the USA. The Senators are popularlyelected. The American Senate enjoys vast powers as compared to the Canadian Senate. If the American Senate is the strongest second chamber, the CanadianSenate is the weakest second chamber.(v) The American Supreme Court has become the third chamber of the Congress; the Canadian Supreme Court cannot claim such a status for itself.(vi) The states in the United States of America enjoy great freedom and powers than those in Canada. Comparatively speaking, unitary elements predominatemore in the Canadian federation than in the American federation. However, more for greater autonomy or separatism without caring to spell out consequencesis afootThe American Federation began its career with a theory of state rights when we today Find the ever increasing growth of central power. Canada began itspolitical existence with the scales highly tilted in favour of the central authorities, where the Canadian provinces today enjoy powers greater than thosethe American States enjoy. The Dominion Government has subordinated its legal powers not the provinces to the federal principles in the actual workingof the parliamentary government. Professor Wheare is of the opinion that no state Government which attempts to stress the unitary elements in the CanadianConstitution at the expense of the federal elements would survive.Reference1. Gautam Adhikari: 'Canadian Constitutional Reform Plan rejected, The Times of India, News Service, dated October 28, 1992.529 AMENDMENT PROCEDUREBefore 1982The British North America Act was silent about the amendment procedure. No substantial reason can be advanced for such an omission. However, the BritishParliament was not expected to amend the Act, as and where it is so deemed fit. Since 1871, it became an accepted practice that demand for an amendmentmust be initiated by the Canadian Parliament in the form of an address to Her Majesty requesting the passage through the British Parliament of an AmendingAct. The British Parliament never impeded any such request. As such it acted as an agent in the realisation of the wishes of the Dominion Parliament regardingthose constitutional amendments which could not be effected by any legislative authority in Canada.The Act of 1867, however, empowered the provinces to amend their respective constitutions except regarding the office of the Lieutenant Governor. Similarpower was not entrusted to the Dominion Parliament. Amendment to the Federal Constitution could be effected only by the British Parliament and that tooin an address to the sovereign by both the Houses of Canadian Parliament. In 1949, the British North America Act was amended in response to an addressby the Canadian Parliament to remove this disability. The Canadian Parliament was henceforth empowered to legislate with respect to constitutional mattersand amend the Constitution of Canada, with the exception of few matters—the legislative authority of the provinces, the rights and privileges of the provinciallegislatures, the use of the English and French languages, the tenure of the House of Commons and constitutional guarantees to the minorities regardingtheir cultural rights including education. Prof. Strong comments, "Obviously then, the only restriction in practice on the Dominion Parliament in the matterof constitutional amendment is that it cannot touch the powers expressly granted by the Constitution to the provinces without their consent."153After 1982As we have seen above, Canada, a fully sovereign state, had to ask a foreign Parliament, the British Parliament, to legislate changes in its Constitution.The Constitution Act 1982 put an end to this anachronistic practice and empowered Canadians to make changes in their Constitution through their nationaland provincial governments. Part V of the 1982 Constitution, covering Sections 38 to 49 has set out four legal formulas or processes for amending the Constitution.The first formula covers amendments dealing with the office of the Queen, the Governor-General, the Lieutenant Governors, the right of a province to atleast as many seats in the House of Commons as it has in the Senate, the use of the English and French languages (except amendments applying only to asingle province), the composition of the Supreme Court of Canada, and amendments to the amending formulas themselves. Amendments of this kind must be passedby the Senate and the House of Commons (or by the Commons alone, if the Senate has not approved the proposal within 180 days after the Commons has done),and by the legislature of every province. In other words, without the consent of every single province, such amendments cannot be made.The second formula covers amendments taking away any rights, powers or privileges of provincial governments or legislatures, dealing with the principleof proportional representation of the provinces in the House of Commons, the powers of the Senate and the method of selecting the Senators, the numberof Senators from each province, and their residence qualifications, the constitutional position of the Canadian Supreme Court, the extension of existingprovinces into the territories; the creation of new provinces and the Charter of Rights and Freedoms. Such amendments must be passed by the Senate andthe House of Commons and by the legislatures of two-thirds of the provinces with at least half of the total population of the provinces. This means thatany four provinces taken together could veto any such amendments; so could Ontario and Quebec taken together. The seven provinces needed to pass any amendmentwould have to include either Quebec or Ontario. Any province can opt out of any amendment passed under this formula that takes away any of its powers,rights or privileges, and if by the amendment it opts for transfer of powers, over education or other cultural matters to the national Parliament, theParliament must pay the province "reasonable compensation."The third formula covers amendments dealing with matters that apply only to one province, or to several but not all provinces. Such54amendments must be passed by the Senate and the House of Commons and by the legislature or legislatures of the particular province or provinces concerned.Such amendments include any changes in provincial boundaries, or changes relating to the use of the English or French languages in a particular provinceor provinces.The fourth formula covers changes in the executive government of Canada or in the Senate and House of Commons (other than those covered by the first twoformulas). These amendments can be made by an ordinary Act of the Parliament of Canada.From the above procedures it is therefore clear that certain provinces can be touched neither by the Parliament nor any provincial legislature. Any singleprovince can veto such amendments. Under the second formula, the consent of the seven provinces with at least half the population of the ten provincesis required. These provisions make the Canadian constitution more rigid than the federal constitutions of the USA, and India. The Canadian Parliament actingby itself can also amend few parts of the Constitution. As such it may be called a flexible constitution.Article 49 of the Constitution Act 1982 provides for the setting up of a Constitutional conference within 15 years after the Procedure for Amending Constitutionof Canada, as contained in Part V, comes into force to review the provisions of this Part.Reference1. Strong, C.F., Modern Political Constitutions, p. 150.5510 STATUTE OF WESTMINSTER (1931) AND LEGAL STATUS OF CANADA"We are a nation in the fullest sense, a member of the British Commonwealth of Nations sharing like freedom with Britain himself, a freedom which we believewe must all combine to serve."—Mackenize King (P M. in 1939)Prior to the enactment of the Statute of Westminster, sovereignty of the Dominion was under certain curbs. All legislative measures before becoming actsrequired the assent of the King who was represented by the Governor-General. The Governor-General could veto the Bills passed by the Dominion Parliament.No law could be passed which was repugnant to the Acts of the parliament or the Colonial Laws Validity Act of 1865. The Privy Council was the final courtof appeal for the Dominion. After the passage of the Statute of Westminster, all these curbs on the powers of the Dominion have been removed.Provisions of the statuteThe main provisions of the statute are as under (i) No act of parliament of the United Kingdom, passed after the commencement of this act shall be extendedor be deemed to extend to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that the Dominion has requested andconsented to the enactment.(ii) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or in operative on the groundthat it is repugnant to the law of England or to the provision of any existing or future Act of Parliament of the United Kingdom or to any order, ruleor regulation under any such Act. The powers of the Parliament56shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the Dominion, (iii) The Parliament of a Dominion has full powers to make laws having extra territorial operations, (iv) The Colonial Laws Validity Act 1865, is not to apply to any laws made after the commencement of this Act by the Parliament of a Dominion, (v) The Dominions have been exempted from the limitations imposed by the Merchant Shipping Act 1894 and the Colonial Courts Validity Act of 1890.The remaining provisions aimed at safeguarding the federal Constitutions of Canada, Australia and the Constitution of New Zealand. In other words, the Statuteof Westminster gave a legal recognition to sovereignty of the Dominion and made them independent of any control of the British government. The Dominionsacquired the status of equality in all matters, internal as well as external. The Dominions become sovereign states for all practical purposes. No specificobligations or undertakings could bind them.Legal Status of CanadaCanada though termed as a Dominion is in fact a full-fledged sovereign state. The Dominion legislature can pass or repeal any law it likes. No law passedby the British Parliament is applicable to Canada without its consent. The Governor-General acts on the advice of the Dominion Cabinet though he is a nomineeof the British Queen. He no longer has the power of rejecting a Bill passed by the Dominion legislature and exercises all his powers on the advice of theDominion and not the British Cabinet. The Dominion has its own flag, its own system of coinage, its own defence forces. The jurisdiction of the Privy Councilhas been entirely abolished in respect of all civil and criminal matters. Since 1949, the Canadian Supreme Court is the final court of appeal in the country.It is thus obvious that Canada is independent and sovereign. The control which the British government exercised through the Crown has now been vested withthe Canadian government. With the 'repatriation' of the Constitution in 1982, Canada can now amend its constitution to any extent. Even the technical sayof Britain in Canadian Constitutional matters was ended with the passage of the Constitutional Act, 1982. Thus it is evident that Canada is in no way subservientto the British government. In the words of Mackenize King (P.M. of Canada in 1939) before Parliament on September 7,1939 "...We are a nation in the fullestsense, a member of the British Commonwealth of nations57sharing like freedom with Britain herself, a freedom which we believe we must all combine to serve."1Prime Minister Pierre Trudeau said on the proclamation ceremony of the Canadian Constitution Act, 1982, "after 50 years of discussion we have finally decidedto retrieve what is properly ours. It is with happy hearts and with gratitude for the patience displayed by Great Britain that we are preparing to acquiretoday our complete national sovereignty."In external matters too, Canada is free and independent. It has its international status independent of England. Canada is a full-fledged member of theUnited Nations in her own right and sends its diplomatic representatives abroad. Canada exercises its vote freely in International conferences, is freeto recognise any country, can negotiate and conclude treaties on its own.Keeping in view the above facts, it can be concluded that international law recognises Canada as a sovereign state with full statehood. Though politicallycalled a Dominion she enjoys a sovereign character and is not subservient to any foreign power. The membership of the Commonwealth does not detract a bitfrom its sovereign character. It enjoys the same status in the comity of nations as big states like its UK, USA, and USSR.Prof. Kennedy has well summed up the place of Canada in the Commonwealth of Nations in the words, "...The legal implications of Canada's place in the BritishCommonwealth are strictly Canadian, in that they rest on Canadian public opinion, while changes may come, if desired, solely and exclusively through Canadianaction. Beyond that all is vanity and vexation of spirit... For better or worse and outside the understanding even of wisemen, Canada is a Democracy."Reference1. Mansergh, Nicholas: Documents and speeches of the British Commonwealth Affairs, Vol I, p. 468.58 1THE CONSTITUTION OF AUSTRALIA1 THE HISTORICAL BACKGROUNDThere is no such thing as a typical democracy, for in every country physical conditions and inherited institutions so affect the political development ofa nation as to give its government a distinctive character.—Lord BryceAustralia has a parliamentary democracy on the British model, with all the traditional freedoms and responsibilities which that system imposes on its citizens.The formation of the governmental institutions known to a nation-state began when the continent was first occupied by Captain Arthur Phillip under commissionfrom the British Government, who brought a party of 1,030 soldiers, sailors and convicts to eastern Australia on January 26, 1788. From then until about1815, the colony remained in substance an open-air prison, and the government an autocracy of Governors who were naval or military officers. As the numberof the free settlers increased, a movement towards representative and responsible government started. This movement had two components; getting rid ofthe rule from London, and extending the basis of political authority in Australia.GeographyAustralia is 2,500 miles from east to west and 2,000 from north to south, covering 29,67,741 square miles. It is more than half as large as Europe (excludingthe USSR) and almost the same size as the United States of America (excluding Alaska and Hawaii). It lies south-east of Asia, between the Indian oceanand the Coval Sea and the Tasman Sea of the South Pacific Ocean. It is the smallest of all the continents and contains six states: New South Wales, Victoria,Queensland, South Australia, Western Australia and Tasmania. As Australia covers more than 30 parallels of latitude, there is a wide variation of climate.Its population is more than one and a half crores. Canberra is the national capital.2Transfer of PowerBefore 1901 the present Australian states were self-governing British colonies. The Australian Colonies Government Act 1850 was the key measure in the transferof effective power to these colonies. The Act established Legislative Councils and gave them the power to establish local legislatures and to regulatethe franchise and qualifications for membership of such legislatures. The Act also gave to these legislatures the general power to make laws for the 'peace,welfare and good government' of the respective colonies, including power to amend their own Constitutions. New South Wales, Victoria, South Australia andTasmania accordingly drafted Constitutions setting up bicameral legislatures. Queensland on its separation in 1859, acquired bicameral legislature by anorder of the council under the provisions of the New South Wales Constitution Act of 1855 Western Australia acquired self-government in 1890.From 1855 onwards the British Parliament passed many Acts which permitted Australian legislature to take action on matters previously thought incidentalto 'imperial policy'. The most important of these was the Colonial Laws Validity Act 1865 which provided that Colonial Laws were not to be regarded invalidbecause these were inconsistent with English Law including the unenacted law or basic English statutes. Invalidity would arise only in the case of Coloniallegislations 'repugnant' to British statutes or enacted laws, which were applicable in the colony in question. Since only a few British statutes were applicablein the colonies and because the colonial legislatures possessed the general power to legislate for 'peace, welfare, and good government' without any significantchecks on that power either in the British legislation or in the colonial constitutions, the colonial legislatures were 'sovereign legislatures' in theBritish sense of sovereignty.With the influx of new population caused by the gold rush of the 1850s and subsequent economic expansion, pressure for widening the franchise and democraticreform started building up, the pressure was resisted by conservatives who wished to retain a special political role for 'property'. By 1900, all colonieshad adopted secret ballot, and suffrage at 21. They acquired a vigorous political life expressed through institutions having an obvious resemblance toparliamentary government and cabinet system as it had developed in England, though the achievement was at an uneven rate of political and constitutionaldevelopment.3Towards A Federal IdeaDuring the period when the six Colonies were asserting their separate independence from Britain and from each other, some voices suggested that geography,common origins and culture, foreign and defence affairs, economic advantage and practical convenience created a need for some sort of concerted actionamong the Colonies, and even a formal union. However, nothing tangible came out. The colonists were intent in the first place on building representativeand responsible governments in the several Colonies, and were nearly as suspicious of possible central Australian authorities, as they were of controlfrom London. The best known and most frequent advocate of some form of Australian union was Henry Parkes (1815-1896) described as "a large-brained self-educatedTitan." He was in the New South Wales Parliament from 1854 until his death in 1896, became Minister several times and Premier five times. Another advocateof federal union was Sumuel Walker Griffith (1843-1920), who entered the Queensland Parliament in 1872, and held many Ministerial posts. Both Parkes andGriffith spearheaded the federal movements - Parkes providing the rhetoric and Griffith the constitutional learning.A convention of the six Australian Governments was held in Sydney in 1883 to discuss common action in the face of French and German colonisation and acquisitionsin the South Seas. The convention agreed to create a 'Federal Australian Council1 consisting of two representatives from each self-governing Colony andone from each Crown Colony. The Council was to have power to deal with naval defence on the high seas, relations with the Pacific Islands, the influx ofcriminals, and such other matters as the participating colonies referred to it. The Council was, however, given no independent financial resources norany executive arm. The British Parliament enacted the Federal Council of Australian Act 1855 providing the legal framework for the creation of the FederalCouncil. The Federal Council, however, failed to achieve its purpose. New South Wales and New Zealand did not join it. South Australia joined it in 1889,and only for two years. Parkes, who had previously favoured a Federal Council, withdrew his approval on the ground that a stronger union was needed. However,the Council enabled many colonial leaders to meet for mutual discussion which demonstrated the need for a much stronger and irrevocable type of union ifAustralia was to become a nation.Parkes, by now the Grand Old Man of Australian politics, appealed to the Australian Governments to meet in a conference to consider the4need for a true federation. His initiative led to the meeting in Melbourne in February 1890, of representatives from the six Australian and the New ZealandGovernments. It was a distinguished gathering. After emphasising the need for the union of the colonies, under one legislative and executive Governmenton principles just to the colonies, the meeting requested the members to procure nomination by their legislatures of representatives to attend a conventionto consider and report upon an adequate scheme for a Federal Constitution.A Convention was held in Sydney on March 2, 1891 under the presidentship of Parkes. It was the first National Australian Government consisting of sevenrepresentative from each colony and three from New Zealand. The convention called for a new federal authority with a bicameral Parliament, a responsibleexecutive drawn from the party in majority in the Lower House advising Governor-General as titular head, and a federal court to hear all Australian appeals.The federal authorities were to be given well defined specific powers with undefined residue to the slates. A Draft Constitution Bill was adopted by theConvention on 9 April. R.R. Garran wrote, "Federation came down from the clouds to the earth, it changed from a dream to a tangible reality.The federal idea, however, languished on account of the economic depression and bank failures of 1890-95 which claimed attention of the politicians. Thelabour leaders also were suspicious of the federal scheme because they considered federalism as a middle class enthusiasm to secure capitalist aims. Thecause of federation, however did not die altogether. It was kept alive by widespread popular movements, partly educational and partly propaganda. The FederationLeagues led by Barton and the Australian Natives Association acting under its influential leader John Quick, kept the federal cause alive. A conferenceof the federation leagues, was held at Corowa on July 31, 1893. The conference resolved that a convention should be held to which the delegates shouldbe elected through popular election. Accordingly, the second National Australian Convention began on March 22,1897 in Adelaide. The Convention had Kingstonas president and Barton as leader. Barton moved a series of general resolutions closely resembling the Parkes resolutions of 1891. On its conclusion (March,31) committees were appointed to handle the Constitution, Finance and the Judiciary. The whole membership of the Convention was distributed among thesecommittees. The Constitution Committee was the most important which appointed Barton, O'Connor and Downer on the Drafting Committee. The Committee presentedits5report on April 8 and on April 12 Barton presented the draft to the Convention. The Convention adjourned on April 22 to enable the Parliaments of the fiveparticipating States to consider the Constitution Bill. On September 2, 1897 the Convention resumed its sitting to consider the State suggestions. Theyadjourned again on September 24, and resumed its sittings in Melbourne on January 20, 1898 for the final session ending on March 17. A Federation Billwas then adopted and sent off as agreed for popular referendum.This Bill was approved at referenda held in Victoria, South Australia and Tasmania, in New South Wales the Bill failed at the referendum. A Premiers Conferencewas held in Melbourne from January 29 to February 2,1891 to discuss the resulting stalemate. Some of the demands of the Opposition in New South Wales weremet and the Draft Bill was amended accordingly, and fresh referenda held in New South Wales, Victoria, South Australia and Tasmania in April-July 1899all obtaining overwhelming majority in favour. Queensland held a referendum in September 1899 which produced a narrow but sufficient majority in favour.Western Australia still demanded concessions. At this point, the British Government indicated its willingness to negotiate the enactment of the federationBill even without the consent of Western Australia.Making of the FederationThe delegates arrived in London in March 1900 and produced the draft of the constitution. Joseph Chamberlain, the Colonial Secretary, placed before theBritish Parliament the Commonwealth of Australia Constitution Act on March 14,1900 which was finally passed on July 5, 1900, and received the Queen's assenton July 9. Meanwhile Western Australia's Parliament also passed its enabling Act, and on July 31 its voters passed the referendum. On September 17 theQueen proclaimed that on January 1,1901 the Australia Commonwealth would come into existence, with all the six Australian Colonies as original States ofthe Federation. The present Constitution of Australia is the Commonwealth of Australia Act, 1900, as amended from time to time.62 MAIN FEATURES"If any country and its government -were to be selected as showing the course which a self-governing people pursue free from all external influences andlittle trammelled by intellectual influences descending from the past, Australia would be that country. It is the newest of all the democracies."—Lord BryceThe present Constitution of Australia is to be found in the Commonwealth of Australia Act 1900 which came into force on January 1,1901. It is a statuteof the British Parliament containing nine clauses. The first eight clauses are commonly called the 'covering clauses'; they contain introductory, explanatoryand consequential provisions. The ninth clause contains, 'The Constitutions'. The Constitution is divided into eight Chapters and contains 128 Sections.Its main features are as follows:(1) PreambleThe opening words of the Australian Constitution proclaim: "Whereas the People of the New South Wales, Victoria, South Australia, Queensland and Tasmania,humbly relying on the blessing of Almighty God, have agreed to unite into one indissoluble Federal Commonwealth under the Crown of the United Kingdom ofGreat Britain and Ireland, and under the Constitution hereby established...". This means that although the Australian Constitution was enacted by the BritishParliament, it, however, is the product of the efforts of the Australian people. The word 'Commonwealth' shows its democratic nature in a better way. The'Federation is indissoluble' implies, no state has the right to secession. Speaking on the Commonwealth of Australia Bill, 1900 in the House of Commons,Joseph Chamberlain, Colonial Secretary, observed: "The bill has been prepared without reference to7us, it represents substantially in most of its features the general opinion of the best judges in their own case, and we are quite content that the viewsof their representatives should be in these matters final." Quick and Ganan say: "The opening words of the Preamble proclaim that the Constitution of theCommonwealth of Australia is founded on the will of the people, it is clothed with the form of law by an Act of the Imperial Parliament of the Governmentof Britain and Ireland." Lord Bryce observes: "If any country and its government were to be selected as showing the course which a self-governing peoplepursue free from all external influences and little trammelled by intellectual influences descending from the past, Australia would be that country. Itis the newest of all the democracies."(2) A Union between Independent StatesBefore the federation came into being in 1901, the present Australian States were self-governing British colonies. At the conventions, an overwhelming majorityof the delegates were state-righters. There was a strong emphasis on preserving the structure and powers of the States, so far as consistent with the unionfor specific and limited purposes. The federal scheme proposed in the Commonwealth Act does not go very far in the centralising direction. Section 106of the Act continues the Constitution of the States, and Section 107 emphasises this by continuing the powers of the slate parliaments. The states havethe power to amend their own constitutions. They derive their constitutions and powers from British statutes, just as much as the Australian Governmentderives its structure and powers from the British statute embodying the constitution. The Governors of the states are appointed by the Crown without anyreference to the Federal Government and the latter has no power to interfere with the laws passed by the state legislatures.(3) A Federal ConstitutionThe constitution declares Australia a federation. All the requisites of a federation - written and rigid constitution, division of powers and judicial review- are found in the Constitution. The powers of the federal government have been specified, the residuary being left to the states. The federation is indissoluble.No state has a right to secede. In 1934, Western Australia submitted a petition to the British Parliament for secession from the Commonwealth of Australiaand "A select committee of the Lords and Commons decided that Parliament was by constitutional convention not competent to deal with such a matter8merely upon the petition of a single state of Australia." This decision emphasizes the fact that in practice as well as in law, no right of secession vestswith any slate acting alone. The Australian federation is akin more to American federation than to Canadian.(4) Parliamentary GovernmentThe Constitution of Australia provides for a parliamentary government at the Centre. The powers of the Governor-General are exercised by him only on theadvice of Federal Ministers or the Executive Council. He is appointed by the Crown on the advice of the ministers of the Commonwealth and is an Australiancitizen. He is liable to be recalled on the same advice. He is merely a constitutional head. The real power vests in the Federal Executive Council headedby the Prime Minister who is the leader of the party in majority in the lower House. The ministers are jointly responsible to the House of Representativesand they remain in office so long as they enjoy the confidence of that House. The members are free to ask questions from the Ministers. The House of Representativesand the Senate arc elected directly by the people. Each adult citizen, who is 18 years of age or above, has the right to vote. In the States also parliamentarysystem exists. The head of the Council of Ministers in the States is called the Premier.(5) Civil LibertiesAlthough the Australian Constitution does not contain any separate chapter on the fundamental rights of the people, the persons living in Australia areguaranteed their basic rights and liberties. So far as the Constitution is concerned, it has only three provisions directly relevant to this topic: theguarantee of religious tolerance in Section 116, the requirement of non-discrimination in Section 117, and the requirement of just terms on acquisitionof property in Section 51. The other fundamental guarantees - liberty and security of persons, freedom of association, freedom of expression, freedom ofmovement, liberty to petition, fair trial, freedom from arbitrary arrest, are not included in the Constitution. But it does not imply that the Australianpeople do not possess these rights. It is a general assumption of the Australian system that no interference by one person in another person's affairsis lawful unless there is a specific rule of law which authorises the interference in question. There is no presumption that governments or officials havepowers merely because they exist. An attempt to interfere in civil liberty will have to be justified by reference to a statute or regulation, etc., madeunder a statute. As in Britain, people's liberties in Australia are protected more by tradition than by constitutional guarantees.9In this respect the Australian Constitution differs from the American and Indian Constitutions which enumerate the basic rights of their citizens. It issaid that liberty is better protected under systems of Australian types than in the countries which have powerful constitutional guarantees of individualrights. Three main arguments are advanced to support this view, first, when a liberty has a constitutional guarantee, it is easily destroyed in toto bysuspending the guarantee (in India it has often happened); whereas in the absence of a guarantee, it would be necessary to repeal all the detailed lawsrelating to the question — a much more difficult and complicated operation, second, that in the absence of a constitutional guarantee, the political groupingof the country will be more on the alert to resist infringements through demonstrations etc; third, that effective government is not possible without somelimitations on liberty and if these limitations are stated in rigid legal form the result is either too much or too little liberty at a particular time.(6) Rigid ConstitutionThe Australian Constitution is a rigid one. Section 128 provides that only law proposing an amendment passed by an absolute majority in both the Housesof Parliament must be submitted to the electors of the House of Representatives in each State and Territory to vote upon it by means of referendum withinnot less than two nor more than one months after its passage through both the Houses. If any such law is passed by one House and rejected by the otherand is passed again by the same House after a lapse of three months or in the next session, the Governor-General may submit the proposed law as last proposedby the first-mentioned House, and either with or without any amendments subsequently agreed to by both the Houses, to the electors in each State for referendum.If in a majority of the States the majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approvethe proposed law, it shall be presented to the Governor-General for the Queen's assent. However, if the amendment proposes an alteration of the limitsof any state or a diminishing of its proportion of members in each House or a change of any sort in its separate rights under the Constitution, it shallnot become law unless the majority of electors voting in that State approve it. Thus an amending Bill must first be passed in the Federal Parliament, andthen at the referendum by a "double majority" of the electors as a whole, and by the electors in a majority (four) of the states. In some circumstances,an amendment may require majority approval in every State. Very few10constitutional proposals have been referred to the people in referendum and the substance of the constitution remains much as it was in 1901. The amendmentsare rejected because they fail to receive the requisite state majority. In its report submitted in 1958, the Joint Committee on Constitutional Review suggestedthat in future if the overall majority in referendum was in favour of the proposal submitted, then only in three out of the six states and not a majorityof the states, should a majority be required. The suggestion was repeated by the Committee in 1959. However, no action was taken on these reports. Evenif the majority in three states instead of the four is provided, the Constitution of Australia would still remain very rigid.(7) Equal Representation in the SenateLike the American Constitution, the Australian Constitution also provides for equal representation of the States in the upper House. Originally, every Statehad six Senators. However, by the Representation Act 1948, the membership was increased from 36 to 60, and each suite was given the right to send ten representatives.The Senators are elected by the people directly. In the composition of the Senate the Australian Constitution follows the American pattern.(8) Independent JudiciaryIn the organisation of judiciary, the Australian Constitution follows the American model. The High Court of Australia has been given the power of judicialreview. It can declare any law unconstitutional. It is the final court of appeal in all federal cases. It can also hear appeals from the Supreme Courtsof the States. The judges cannot be removed except by the Governor-General in Council, on an address from both the Houses of Parliament in the same session,praying for such removal on the ground of proved misbehaviour or incapacity.(9) Separation of PowersThe Australian Constitution follows the basic tripartite 'Separation of powers' made familiar by the British and Colonial practice. The Constitution vestsFederal Parliament in which legislature power is vested (Section 1), a body of Ministers acting in the name of the Queen and Governor-General, in whomthe executive power is vested (Section 61), and Federal Judiciary, exercising the power of judicial review. In virtually all matters, the Governor-Generalacts as advised by his Ministers, but there can be rare cases in which he has to exercise personal discretion.11(10) States' ConstitutionsLike the American Constitution but unlike the Indian, the Australian Constitution does not include the structure of the State Governments. It only makessome general provisions in regard to the States. Section 106 says: "The Constitution of each State of the Commonwealth shall, subject to this Constitution,continue as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." The StateConstitutions take their origin in British statutes, and differ materially in constitutional type from the Federal Constitution. In order to get a completepicture of the six State Constitutions, one has to go back over a series of British statutes. The States have from time to time in order to consolidatethe whole of their statute law, produced a single 'Constitution Act.' Thus the South Australia Constitution Act was reprinted as amended in 1961, TasmanianConstitution Act in 1959, New South Wales in 1957, Victoria's in 1958, Queensland's in 1962, Western Australia's in 1967 — these State Constitutions varygreatly in length and in the statutes they include. If the Tasmanian Constitution Act has 46 Sections, the Victorian Constitution has 478 Sections. TheState Constitutions are simpler and more flexible than the Federal Constitution.(11) Inter-State CommissionThe Australian Constitution provides for an inter-state Commission, with such powers of adjudication and administration as the Parliament deems necessaryfor the execution and maintenance within the Commonwealth, of the provisions of the Constitution relating to trade and commerce and of all laws made thereunder.The member of the Inter-State Commission appointed by the Governor-General in council for a period of Seven Years removable on an address from both Housesof Parliament on the ground of proved misbehaviour or in capacity.Therefore, the Australian Constitution like the Indian Constitution is a mixed form of the British and the American Constitutions. It is a parliamentarydemocracy with federal scheme but unlike the Indian Constitution the States in Australia have their own Constitutions with the power to amend them. Itis more federal than the Indian Constitution.123 EXECUTIVE GOVERNMENT"The Governor-General of Australia is in the whole of the Colonies a useless image and a bauble."—John CockburnThe CrownAustralia is a sovereign independent nation, but has retained its links with the British Crown. Section 61 vests the executive power of the Commonwealthin the Queen which is exercisable by the Governor-General as the Queen's representative. The Queen is thus the head of the Commonwealth of Australia. Sheis the Queen of Australia not because she is the Queen of the United Kingdom but because she is the Queen of Australia in her own right. The Governor-Generalis appointed by the Queen. Section 59 gives the Crown a power of disallowance within a year. The State Constitutions also provide for reservation of certainBills. In the 19th century the power of reservation and disallowance was occasionally exercised, but after 1900 no Bill was reserved and no federal Acthas been disallowed. With the passage of the Statute of Westminster 1931, adopted by the Australian Commonwealth Parliament in 1942, Sections 58 and 59have become redundant The retention of such Sections has become ridiculous. The Queen's position has been reduced to a mere symbol. She is a piece of ernor-GeneralThe Governor-General of Australia is Her Majesty's representative in the Commonwealth and is appointed by the Queen. Until 1931, the Australian Governmentwas only consulted about the choice of a Governor-General, but the final choice was made by the Monarch on British advice. Then the Scullin Australiangovernment insisted on the appointment of an Australian, Sir Isaac Issacs. After further13appointment of titled Britishers, an Australian was again appointed on Australian advice in 1946, and since 1965 it has become a settled practice for AustralianGovernments, irrespective of party, to procure the appointment of Australians, without any intervention by British Ministers. The Governor-General holdsoffice during the Queen's pleasure and may be recalled by her on the advice of the ministers of the Commonwealth.His PowersThe Governor-General is the representative of the Queen and exercises the executive power of the Commonwealth as the Queen's representative. Generally speaking,he asks the leader of the majority party to form the ministry; appoints the ministers and administers the oath of office; summons and prorogues the nationalParliament; dissolves the House of Representatives; recommends to Parliament the appropriation of revenues and money; assents to the Bills passed by theParliament or sends them back for reconsideration with his own suggestions; appoints judges of the High Court and removes them on an address from boththe Houses of Parliament and is the Commander-in-Chief of the armed forces of Australia.The above powers are, however, nominal. The Governor-General does not actually exercise these powers. In most part he carries out the decisions taken bysome one else usually the cabinet. The ministers of the cabinet are members of Parliament chosen by the people. The cabinet is the most important generatorof policy initiatives. The Governor-General rarely exercises personal discretion in relation to executive matters. In relation to the Parliament, the powerto summon, prorogue and dissolve the Parliament is exercised solely as advised by the Prime Minister. However, there are two types of situations in whichthis power may be exercised without or contrary to ministerial advice. First, and the rarest is the case where unless the Governor-General so acts, somethingspecifically illegal will happen, such as failure to hold a session of Parliament within a year, or the raising or spending of public revenue without statutoryauthorisation. Second, is the case of advice to dissolve a lower House in circumstances where there is a possibility that another political leader couldif commissioned as Prime Minister obtain majority support in that House. The Governor-General instead of acting on the advice of the Prime Minister mayappoint another leader to form a workable Ministry and save the people the expense and disturbance of a fresh poll.14In short, the position of the Governor-General is of a nominal head. The Government of Australia is of parliamentary type and hence the Governor-Generalis expected to act on the advice of the ministers. His position is further weakened by the fact that he is appointed on the advice of the ministers andis liable to be recalled on their advice. The President of India, also a head of parliamentary Government, is not so appointed and so the position of AustralianGovernor-General is weaker vis-a-vis the Indian President who also exercises some emergency powers. The Governor-General stands no comparison to the Presidentof America wherefrom the federal scheme was borrowed by the Constitution makers of Australia. The position of the Australian Governor-General is even weakerthan that of the Canadian Governor-General who appoints and removes from office the Lieutenant-Governor and President of the Senate and can disallow anact of provincial legislature. To sum up, the position of the Australian Governor-General is the same as that of the Queen of England, but herein alsohe does not possess the dignity, prestige and influence of the Queen of England. According to John Cockburn; "It was pointed out that his highest functionwould be to a dummy and that although he was the only link between us and the Crown, in being that link he was less than the least in the whole of thecolonies a useless image and a bauble."Federal Executive CouncilChapter 11 of the Australian Constitution mentions an Executive Council, which is to include the Ministers of State. These Ministers of State are appointedby the Governor-General to administer government departments, and they must either be members of Parliament when appointed or become such within threemonths of appointment. Five Ministers were thought sufficient in 1900, but now there are twenty-seven ministers. The Prime Minister is chosen by the partyin majority at its meeting of the parliamentary members of the party. The Prime Minister then chooses his colleagues who are appointed by the Governor-General.The Australian Labour Party caucus, however, also elects the members who are to become Ministers, leaving it to the Prime Minister to allot portfolios.There is a strong Federal convention that every State be represented in the Ministry.The Executive Council is a formal body, the real business of supreme policy control is carried out at meetings of Ministers which have come to be calledCabinets. The Prime Minister presides over the Cabinet meetings. The Cabinet has an official staff whose senior members are admitted to the Cabinet meetingto handle papers and keep15minutes. All Ministers are Members of the Cabinet. A federal experiment of having about only half of the Ministers in the cabinet, tried from 1956 onwardsunder the Liberal-country Party Governments, was abandoned by the Labour Party Government in 1973.The institution of a Cabinet is not mentioned in the Constitution nor is it mentioned in any of the Constitutions. Generally, the Constitutions refer onlyto the Ministers. The discussion and coordination of government policy is, in fact, performed in the Cabinet which is an unwritten feature of all the Constitutions.It is through the Cabinet that the Ministry maintains the harmony of policy and joint responsibility for policy which the system of 'responsible government'is thought to require. The Cabinet plays a dominant role in the administration of the country. It performs all such functions as are performed by the Britishor Indian Cabinet. It is the steering wheel of the ship of the State and the pivot of the administration. Under Australian conditions, especially wherecaucus elects Ministers, the confidentiality and the unity of the Cabinet tend to be less than required by the British convention. What holds true of theBritish Cabinet in respect of its powers and position also holds true of the Australian Cabinet.Thus, the Australian Cabinet like its counterpart in Great Britain determines and formulates the national policy regarding all domestic and internationalmatters allocated to the Federal Government by the Constitution and puts the policy into execution either by administrative action or by getting a newlegislation enacted; guides and controls the work of Parliament with the Prime Minister acting as its leader, exercises delegated legislature authorityand administrative adjudicatory powers; holds supreme control of the national executive, making appointments to all the high national offices and regulatingthe work of national departments through ministers determines the national finances and causes the budget to be laid before the Parliament, and acts asa co-ordinating authority between various departments.It may be noted that Australia having a federal government, the Cabinet is not as Supreme as the British Cabinet.The Prime MinisterThe office of the Prime Minister is not a constitutional creation but is based on convention. He presides over the cabinet meetings and gives portfoliosto his ministers. He is appointed by the Governor-General but actually he is the choice of the party in majority. The parliament members of the majorityparty elect their leader in the House of Representatives who is summoned by the Governor-General to form the16government. His functions are similar to those of the British or Indian Prime Minister. His first and important function is to select his Ministers, thoughhe can include anybody, he pleases in his Cabinet and the Governor-General will not interfere with it. However, there are certain factors which the PrimeMinister has to take into consideration at the time of selecting his colleagues. He has to give representation to all the States and has to make his Cabinetas broadly representative as possible. When the Labour Party is in power, it is the caucus of the Labour Party which nominates a panel from which the otherministers are selected. The Prime Minister and other ministers belonging to the Labour Party are responsible to the caucus which alone regulates theirrelations and also controls them. However, when other parties are in power, the Prime Minister has a freer hand in the selection of his colleagues. AsChairman of the Cabinet he presides over its meetings and conducts its proceedings. He has a right to be consulted by the Ministers on the major problemsof the departments. He sees that the decisions of the cabinet are carried out by the various departments. He is the leader of the House of Representativesand leader of his own party in the Parliament. He is a senior parliamentarian among his colleagues. His long experience gives his opinions a greater weightand authority. His preeminence is shown by his chairmanship of the cabinet, the leadership of parliament, his position as chief channel of communicationwith the Governor-General and his acknowledged position in the country as leader of the majority party. While it is true that he is not a dictator, hehowever, occupies a position of preeminence. But much depends upon his own calibre, the range of his interests, his capacity for work, his tact and wisdomand his influence within the party.174 THE FEDERAL PARLIAMENT"The six State Parliaments were modelled on British House of Commons, and the Australian Parliament was modelled on the State Parliaments, with modificationsrequired by federation."—Geoffrey SawerThe Federal Parliament consists of the Crown, represented by the Governor-General; the Senate and the House of Representatives. It was located in Melbournefrom 1901 until 1927, when it was transferred to Canberra, the national capital. In relation to the Parliament, the Governor-General performs only thefunctions of summoning, proroguing and dissolving it and giving his assent to the Bills passed by it. The Parliament meets at least once a year, so thatthe intervening period between the last sitting of a session and the first sitting of the next session shall be less than twelve months.The SenatePart two of the Constitution describes the composition of the Senate. It consists of equal number of representatives from each of the six States, chosenby the people of the State—each State being treated as a single electorate. Originally, six members used to be elected from each state. The RepresentationAct, 1948-49 raised the number to 10 which has again been increased to 12 by recent legislation. So now there are twelve senators from each state and twofrom each of the Australian Capital Territory and Northern Territory. The Senators arc elected for a term of six years, half of them retiring every threeyears. The Senators elected to represent the territories serve a maximum period of three years and their terms coincide with those of the members of theHouse of Representatives. They are eligible for re-election. The Senate elects the President from its members. The President has a vote as a Senator, butno casting vote. When the number of votes are equal in the Senate,18the question is resolved in the negative. The quorum is formed of one-third of the total members. The Senate cannot normally be dissolved during its six-yearterm. However, if a deadlock exists between the Houses, the Governor-General may dissolve both the Houses simultaneously. He also reserves the power torefuse advice to dissolve. If the place of a Senator becomes vacant before the expiration of his term, the Houses of Parliament of the State for whichhe was chosen, shall sitting and voting together, choose a person to hold the office until the expiration of the term, or until the election of a successor,whichever happens first. But if the Houses of the State Parliament arc not in session at the time when the vacancy is notified, the Governor of the State,with the advice of the Executive Council thereof, may appoint a person to hold the office until the expiration of fourteen days after the beginning ofthe next session of the State Parliament or until the election of the successor, whichever happens first. Thus in the bye election the people do not votebut it is the State Parliament which fills the vacancy. The place of a Senator falls vacant if for two consecutive months of any session, he, without permissionof the Senate fails to attend the Senate.The qualifications of a Senator are the same as those of a member of the House of Representatives. Thus he must be twenty-one years of age and must be anelector and a resident for three years, at least, within the State and must be a British subject. The voting age is 18 years and voting is compulsory.Australia was the pioneer of voting by secret ballot in parliamentary elections. The voting system is by proportional representation, i.e., the surplusof votes which a well-supported candidate may have over the quota required for election is distributed among other candidates in accordance with the voters'preferences. Section 47 makes Parliament itself the judge of election disputes. However, most questions regarding the validity of votes and the validityand result of elections, if disputed, have been placed by the Parliament in the hands of the High Court sitting as a Court of Disputed Returns.It may be noted that the Australian Senate is more democratic in composition than the Canadian Senate. The members of the Canadian Senate arc nominatedby the Governor-General and are life members whereas the members of the Australian Senate are elected directly by the people through secret ballot on thebasis of proportional representation for a term of six years. In its composition the Australian Senate is more akin to the American Senate. Although Australiahas adopted Westminster-style parliamentary democracy, in its composition of Senate it has departed widely from the House of Lords.19House of RepresentativesThe House of Representatives is the lower chamber of the Australian Parliament. It represents the national interest as a whole whereas the Senate representsthe States' interests. Section 24 of the Constitution requires the number of the Representatives to be approximately twice the number of Senators. At presentit is 148. The membership is distributed among the states in proportion to their population. Article 24 provides that (i) a quota shall be ascertainedby dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, as twice the number of the senators, (ii)the number of members to be chosen in each state shall be determined by dividing the number of the people of the state, as shown in the latest statisticsof the Commonwealth by the quota, and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in eachstate. There are two members from the Australian Capital and one from the Northern Territory. The members are elected directly by all the adult citizensthrough secret ballot. Elections are held on the basis of single member constituencies, and must be held every three years unless the House is dissolvedearlier. Section 44 of the Constitution debars aliens, persons convicted of treason or punished by imprisonment for one year or longer, undischarged bankruptor insolvent, persons holding office of profit under the Crown or getting pension, persons having any direct or indirect pecuniary interest in any agreementwith the public services otherwise than as a member of incorporated company, from being chosen or sitting as a Representative or Senator.In the House, Speaker is chosen from among the members. Each member has one vote and decisions are taken by a majority of votes. The Speaker has a castingvote when numbers are equal. In the Senate, the President does not possess the casting vote. During the absence of the Speaker, the House may choose amember to perform his duties. The alternative vote system is used in elections which ensures that the successful candidate in any electorate is the choiceof the majority of electors who voted in that constituency. The Commonwealth Electoral Acts regulate the conduct of elections. Each House has the powerto regulate its procedure, and each House enjoys the powers, privileges and immunities of the British House of Commons, including summary power to committo prison for contempt of Parliament.Powers of ParliamentThe Australian Parliament possesses all such powers as are possessed by the parliaments in parliamentary democracies. The main collection20of substantive legislative powers is contained in the 40 sub-sections (sometimes called 'placita') of Section 51. These powers may be classified as follows:(i) Defence and Foreign Affairs(a) The naval and military defence of the Commonwealth and of the Several States, and the control of the forces to execute and maintain the laws of theCommonwealth; (b) Quarantine; (c) The influx of criminals; (d) External affairs; (e) The relations of the Commonwealth with the islands of the Pacific;(0 The control of railways with respect to transport for the naval and military purposes.(ii) Fiscal Powers(a) Taxation; (b) Borrowing money on the public credit of theCommonwealth.(iii) Population Policy(a) Immigration and emigration; (b) Naturalisation and aliens.(iv) Public Facilities and Social Services(a) Postal, telegraph, telephonic and other like services; (b) Lighthouses, lightships, beacons and buoys; (c) Astronomical and meteorological observations;(d) Census and statistics; (e) Banking and currency; (f) Maternity allowances, pensions, unemployment, sickness and hospital benefits, medical services,benefits to students and family allowances.(v) Family Law(a) Marriage; (b) Divorce and matrimonial causes, parental rights.(vi) Commercial and Industrial Regulation(a) Trade and commerce with other countries and among the States; (b) Bounties on the production and export of goods; (c) Fisheries beyond territorial limits;(d) Currency, coinage and legal tender; (e) Banking; (f) Insurance; (g) Weights and measures; (h) Bills of exchange and promissory notes; (i) Bankruptcyand insolvency; (j) Copyrights, patents of inventions and trade marks; (k) Foreign corporations; (1) Conciliation and arbitration of industrial disputesextending beyond the limits of anyone State.(vii) Relations with States(a) Civil and Criminal law; (b) The recognition throughout the Commonwealth of the laws, the Public Acts and records, and the judicial proceedings of theStates; (c) Acquisition with the consent of a21State, of any railways of the State; (d) Railway construction and extension in any State with the consent of that State.The above is only a broad classification of the federal powers. These powers have become the foundation of some more powers not mentioned in the Constitution.Thus, banking originally thought of as a power to regulate private banks became the foundation for the establishment of the Australian Government banks.The inter-State industrial disputes power became in time a power to establish basic conditions of employment for the whole community. Federal spendingis an important power not dealt with in Section 51. Section 122 gives the Parliament a general power to make laws for Federal Territories.The federal powers can be classified from another point of view as exclusive by nature, exclusive by express provision, concurrent, and parallel. The powersexclusive by nature are those which never came within the general powers possessed by the States, important examples being the regulation of federal territories.Express exclusive powers are, the control of the seat of government and of Commonwealth-owned areas within the States, imposition of customs and exciseduties, and money and legal tender. Concurrent powers are those which exist alongside State power in the same area, and include most of the powers in Section51; it is in relation to such powers that a rule is provided both by covering Clause 5 and by Section 105 of the Constitution - the rule being that thefederal law prevails. Parallel laws are ones which resemble concurrent laws at the first sight, seeming to be about the same topic, but which are not capableof conflicting with each other, the provisions instead operating side by side.The above powers are enjoyed both by the Senate and House of Representatives. No ordinary bill can be passed unless it has been passed by both the Housesof Parliament. An ordinary bill can be introduced in either Houses; however, the money bills must originate in the House of Representatives.Relations Between the Houses of ParliamentOne of the reasons for the establishment of the Senate in Australia was to enable the less populous States to safeguard their interests by having equalrepresentation in the Upper House if they come into conflict with those more densely populated States. The Senate was also intended to be a House of review,a function universally accepted as the role of a second chamber.Bills may be introduced in either House, except that proposed laws appropriating revenue or imposing taxation may not originate in the22Senate. The Senate may not amend the Tax Bills and Appropriation Bills; it can, however, reject any tax or spending Bill, and where it cannot amend it cansuggest amendments. In practice the Senate has at times persisted with 'suggestions' in a way almost equivalent to amendment, though by doing so, it createsthe risk of causing a double dissolution, since persistent 'suggestions' could be treated as 'failure to pass' the Bill. Section 57 reads:If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House ofRepresentatives will not agree, and if after an interval of three months, the House of Representatives, in the same or the next session, again passes theproposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, orpasses it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representativessimultaneously. If after such dissolution, the House of Representatives again passes the proposed law, with or without any amendments which have been made,suggested or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendment to which the House of Representatives willnot agree, the Governor-General may convene a joint silting of the members of the Senate and of the House of Representatives. The members present at thejoint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives and upon amendments, if any,which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the totalnumber of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, ifany, so carried as affirmed by an absolute majority of the total number of the members of the Senate and the House of Representatives, it shall be takento have been duly passed by both the Houses of Parliament, and shall be presented to the Governor-General for the Queen's assent.The possibility of deadlocks between the two houses exists because, although now all elected, they are chosen from differently distributed constituencies,and at different times; generally speaking, about half of the membership of the Senate will at any time represent the view of the electorate of a periodfrom two to six years earlier than23the most recent general election for the House of Representatives. The Senate has never accepted the view that it is mainly a revising chamber, and thestrength of its claim has increased as its franchise has been widened. It is possible to regard an indirectly elected chamber such as the Council of Statesin India or a nominated second chamber like the Canadian Senate or a hereditary chamber like the British House of Lords as primarily a revising House.But the Senate is a directly-elected chamber and the representative of the States in the Federal structure. It performs to some extent, the function ofa revising chamber, but its position is not as weak as that of the House of Lords or the Rajya Sabha. By persistent suggestions it can force an election.The Senate has on numerous occasions rejected or amended ordinary Bills, though taxation and appropriation Bills have not been rejected so as to bringdown or force to an election a Ministry having the support of the lower House. Only once in 1974, a Senate threat to refuse supply led Whitlam's Governmentto obtain a double dissolution. While it is true that the representatives control the Ministry since it remains in office so long as it enjoys the confidenceof the former and need not have the support of the Senate; nevertheless the powers of the Senate are sufficient to enable it to negotiate with the Ministry,and as a last resort make it impossible for the Ministry to carry on the government. Generally speaking, the role of the Senate regarding taxation andexpenditure and control over the Ministry is small, but in relation to the keeping of performance of the governmental system under continuous criticismand discussion and the making of laws - new laws, or laws amending existing laws, its formal powers are nearly much as those of the House of Representativesand its actual role is considerable.The Business of the HousesEach House of the Federal Parliament has a general control over its procedure and internal discipline; these are regulated by standing orders, by Sessionalorders and by ad hoc orders. The general purpose of these orders is to ensure that the majority gets its way without undue obstruction, and that minoritieshave a reasonable opportunity to criticise and put their point of view. The supervision of the proceedings is in the hands of the Speaker in the Houseof representatives, President in the Senate, and Chairman of Committees in both Houses; although elected by party majorities, these officers are expectedin principle to maintain a reasonable degree of impartiality. Legislation passes through a number of stages. The usual stages are first reading (formal),second reading (general principles debated), committee stage ('committee of24the whole' with all members present but debating in a less formal fashion the detailed contents of the Bill, clause by clause), third reading (general principlesreconsidered). After a Bill has been passed, it is presented to the Governor-General for Royal assentBoth the Houses of Parliament have the power to deal with unruly or contemptuous behaviour by members or visitors in the debating chamber and adjoiningoffices, by ordering arrest and removal. Section 49 gives to the Parliament the full contempt power of the House of Commons. The House have conclusivepower to decide whether particular conduct constitutes contempt.255 THE FEDERAL JUDICIARY"The organisation of the judiciary in Australia has been influenced by the general structure of federalism."—Geoffrey SowerThe organisation of the judiciary in Australia has been influenced by the general structure of the federalism. There are State Courts and federal courts,arising under state and the federal law respectively. In a sense the Australian judicial system is integrated. The High Court is not only the supreme federalappellate tribunal, it is also a general court of appeal from the State Supreme Courts. Similarly, the state courts deal not only with questions arisingunder the state constitution and laws, they also deal with many questions arising under the federal Constitution and laws. In this respect it compareswith the Indian Judicial System.The High CourtThe High Court is directly created by section 71 of the Constitution. It consists of the Chief Justice and such other judges, who are appointed for lifeby the Governor-General in Council. They can be removed only on an address from both the Houses of Parliament in the same session, praying for such removalon the ground of proved misbehaviour or incapacity. Thus, unlike the judges of the Indian Supreme Court the judges of the Australian High Court occupyoffice for life. In the United States also the judges of the Supreme Court hold office for life. The salaries of the judges cannot be diminished duringtheir continuance in office. Since 1977, the age of retirement of the appointees to the High Court has been fixed at 70 years.Its JurisdictionThe jurisdiction of the High Court falls into two parts: (a) original and (b) appellate. Section 75 provides that the High Court shall have26original jurisdiction in all matters (i) arising under any treaty; (ii) affecting counsels or other representatives of the other countries; (iii) in whichthe Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between states, or between residents of different states,or between a state and a resident of another state; (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of theCommonwealth. In addition, the Parliament has conferred original jurisdiction on the High Court in any matter (i) arising under any laws made by the Parliament;(ii) arising under the constitution, or involving its interpretation; (iii) of Admiralty and maritime jurisdiction.Regarding its appellate jurisdiction, the High Court hears three kinds of appeals; firstly, appeals from all the other federal courts; secondly, appealsfrom all State Courts when they are exercising federal jurisdiction, vested in them under section 77; (iii) thirdly, appeals from the Supreme Courts ofthe States in all other types of cases they may hear—that is, in cases not coming under Sections 75 and 76 or otherwise having any federal element. Thepractical effect of the provisions regarding the appellate jurisdiction is that the High Court is a general Court of Appeal from the highest State Courts.It may be noted that where the case appealed is from a State Court, then if the matter arises wholly under State Jurisdiction it can in general come onlyfrom a State Supreme Court, but if under federal jurisdiction it can come from any State Court, it may also be added that the High Court is the final courtof appeal in all federal cases. In 1968, appeal to the judicial committee of the privy council under federal jurisdiction was abolished. But regardingpurely state cases, the litigants have the choice to take their appeals to the federal High Court or direct to the Privy Council. The provision of appealfrom the State Supreme Courts to the High Court is only an alternative to Privy Council appeal, not a substitute for it. However, the majority of litigantsopt for the High Court partly because that appeal is much cheaper and partly because of the reputation of the High Court.The High Court has established for itself a position of great eminence. It has attracted the ablest lawyers for justice, and the advocacy of Bar leaders.It has become for all practical purposes the final court of appeal in Australia. Like the American and Indian Supreme Courts, it has the power of judicialreview and has through judicial interpretation of the Constitution facilitated the development of co-operative federalism in Australia.27The Federal CourtThe Federal Court is one of the two specialised courts—the Australian Industrial Court and the Federal Court of Bankruptcy created to deal with laws passedby the Federal Parliament. These matters include copyrights law, industrial law, trade practices, bankruptcy, and administrative review.The court also has a large appellate role from cases decided by a single judge and from courts and tribunals administering federal laws. It is presidedby a chief judge and has 24 other judges.The Family CourtThe Family Court was created in 1975 to deal, so far as the Constitution permits, with divorce, custody of children, maintenance and property disputes arisingfrom the broken marriages. This Court is a more informal Court than other Courts. It has a chief justice and 41 other judges. The Court also conducts anassociated counselling service.The Australian Capital Territory and the Northern Territory, each has a two-tier court system—Supreme Court of general jurisdiction and courts of Pettysessions attending to smaller civil and criminal matters and committal for trial. Each Territory has now some judges engaged full time in Territory work,but they also avail the services of a number of judges of the Australian Industrial Court on a part-time basis. The Australian Capital Territory also hasa "Full Court" or its Supreme Court as a first stage local appellate tribunal.The State CourtsIn each of the States, there is a state judicial structure under which the names of various types of courts differ, but the outer structures are identical.First, there is a Supreme Court with general, unlimited civil and criminal jurisdiction, but which in practice deals with only the more important typesof cases, depending on the seriousness of the possible punishment, and the amount of dispute or effect on a person's status in civil matters. Secondly,there are numerous magistrates' courts which decide both civil and criminal cases in which maximum penalties or amounts involved are relatively small,and they make preliminary inquiries into more serious types of criminal charges to see whether the person charged should be committed for trial to a highercourt. Thirdly, there are intermediate courts known as district or county courts between Supreme Courts and magistrates' courts which deal with an intermediaterange of criminal and civil cases in terms of seriousness and amounts involved.28The judges of the Supreme and intermediate courts are appointed from the practising legal profession. In the magistrates' courts now professionally trainedmagistrates are appointed, though in some states justices of Peace, who are unpaid and without professional legal knowledge, can and do still sit in magistrates'courts for limited purposes. Appeals from a magistrate's court can be taken either to an intermediate court or to the Supreme Court, depending upon thenature of the case (civil or criminal), and the question involved (legal or otherwise). Appeals from an intermediate court lie to the Supreme Court. Decisionsof a single judge in the Supreme Court can usually be appealed to "Full Court" of the Supreme Court. The judges are appointed for life by the Governorand hold office during good behaviour. As said earlier, appeals from the State Supreme Courts in matters wholly of State law may be taken to the High Courtof Australia or to the judicial committee of the Privy Council.296 POLITICAL PARTIES IN AUSTRALIA"No free large country has been without political parties. None has shown how representative government could be worked out without them."—Lord BryceResponsible government in practice is difficult to work unless there are reasonably stable groupings of members in the legislature. However, this importantcomponent of Westminster-style parliamentary democracy gets only the most indirect recognition in the law of the constitution. Political parties givenonly minimal recognition by the constitution and the courts are unwilling to treat the agreements or understandings setting them up as capable of legalinterpretation or enforcement.Origin of Political Parties in AustraliaThe political parties in Australia are of recent origin. The first party, Australian Labour Party, came into existence in 1891. Before the British peoplemade a permanent settlement in what is now called Australia, the dark-skinned aboriginals had developed a way of life and technology suited to the maintenanceof a stable ecology. They did not develop the institutions and process of government which elsewhere caused the formation of political parties. This kindof development began only when under pressure from an increasing population of free settlers, began the movement towards representative and responsiblegovernment, which dominated the constitutional life of Australia until the 1880s.The Australian Colonies Government Act 1850 was the key measure in the transfer of effective power to Australia. The Act, however, specified property qualificationsfor voters and members of the Legislative Councils. As a result of the gold rushes of the 1850s, and30subsequent economic expansion, the demographic character of Australia changed rapidly, a preponderantly free population exerted greater pressures for democraticreform, and among the new immigrants were many with radical political views. The pressure was resisted by conservatives who wished to retain a specialpolitical rule for 'property'. Factional politics and the influence of powerful individuals were still prominent everywhere, but the beginnings of moresettled party organisations were apparent in New South Wales and Victoria. These developments were hastened by the growth of trade unions in the late 1880s.A class of politicians and political leaders grew up and a party system came into existence with the inception of the Labour Party in 1891. At the Federal/LiberalConventions of 1891 and 1897 the main political divisions were between liberals and conservatives, between State-Righters and Centralists, and between'small Staters' and 'big-Staters' who were organised into Leagues. The economic issues of the time gave birth to 'Free Traders' and 'Protectionists'. Boththese parties were anti-labour. They later united to form a single party called the National Party. The Australian farmers also later formed their ownparty, the Farmers' Party.Characteristics of Australian Party SystemThere are certain features of the Australian party system. Firstly in Australia, the parties are organised at the state level. The Labour Party was bornnot at the national level but in New South Wales in 1891, it is the state organisation of each party which has preponderance over the national organisation.The national organisation comes into operation only when there is a national crisis or on the occasion of the general elections to the Parliament. In Indiaand Britain the position is otherwise. In both these countries the parties are strongly centralised organisations and their national organisation controlsand directs the state units. Secondly, each party has an easily identifiable syndicate as its supporter. The syndicate is an organisation of the peoplewho have common interests and who exercise influence in the shaping of party policy. Such syndicate may consist of the trade union leaders or of aspiringpolitical men. Thirdly, all the parties have some similarity of organisation, being federal in character, with State divisions or branches and a FederalExecutive and Conference. Further, all of them support parliamentary democracy, the liberties of the individual, and the rule of law. Fourthly, all themain parties of Australia are parties of government. Each party has been in office, whether at the Centre or in the State. No party can act "only as aparty of opposition and criticism."31Every party has been in office, and hopes to be in office again, and as such does not act in an irresponsible manner. Fifthly while in Great Britain theLabour Party is considered to be a young party, in Australia the Labour Party is the oldest party.The Labour PartyPrior to the formation of political parties there existed factions and leagues. The Labour Party was formed in 1901 in New South Wales by the leaders ofTrade Unions. It is a federal organisation with six state branches. A federal Secretariat was established in Canberra in 1964. Its members are not onlyminers, seamen, railwaymen, and labourers in the pastoral industries, but farmers, urban middle classes and public servants are also its members. The partyhas consistently claimed the right to speak for organised labour, and is the chosen political instrument for most of the trade unions. In the first electionsto the federal Parliament it secured only twenty-four seats in both the Houses but since its strength was the largest, so in the coalition it holds thebalance. Its strength continued to increase and in 1910 it was able to form its government on the basis of its absolute majority in the Parliament andsince then it has formed government several times.The advocates of the Labour Party point out that their party is the champion of the masses against the classes. They would like to set up a society in whichthe working people possess "a full human share in the control of the government." The Labour Party believes in peaceful means and stands for a parliamentarytype of government. It wants to end exploitation and injustices in the existing social order. It is pointed out that "the Labour Party is a Socialist Party.Its socialism is built upon a profound faith in the people and a determination to press for necessary social changes upon the basis of democracy and justice.We reject all demands for dictatorship, whether from the Left or from the Right. We take our stand upon that faith in reason which looks to the declaredwill of the people as the only valid source of power. So long as this will is nationally respected, we are confident that the historic forms of parliamentarydemocracy, provide a highway along with the nation can pass peacefully from an acquisitive to a socialist society. We warn enemies of democracy; whetheropen, or secret that the declared will of the people must prevail."The members of the Labour Party in the federal Parliament are under strong party discipline. There is a regular meeting of the 'Caucus', i.e., of parliamentarymembers of the party once a week where policy decisions binding the Government are taken. Every32minister is responsible for his department to the 'Caucus'. The 'Caucus' elects not only the leader of the party in the Parliament but also elects the memberswho are to become Ministers, leaving it to the Prime Minister to allot 'portfolios'.The Liberal PartyThe Liberal Party was formed in 1944. Before that, the opponents of the Labour Party were organised into United Australia Party earlier known as NationalParty. The National Party was formed out of the merger of the 'Protectionist' and 'Free Traders', the earliest groups opposed to Labour Party. Thus thepresent Liberal Party is the successor party to the 'Protectionists', and 'Free Traders' merging into National Party which changed its name to United AustraliaParty. It has a federal structure with divisions in every state, and Federal Secretariat with its headquarters in Canberra. The chief architect of theLiberal Party was Mr. R.G. Menzies. According to him, "The Australian Labour Party has an efficient Commonwealth wide organisation. To resist effectivelythose aspects of Labour Party to which we are opposed and to gain the public support enabling governments sympathetic to our views to be formed, we mustmatch Labours' organisations with an Australian organisation of our own."Among the more significant objectives of the party are the maintenance of an intelligent, free and liberal democracy by Parliament controlling the Executive,with the law controlling all; freedom of speech, religion and association, freedom of citizens to choose their own way of living and life, the protectionof individual initiative and private enterprise in the country's development and progress. The party stands for continuous employment, co-operation betweenemployers and employees, and social insurance on a contributory basis. Its programme includes providing medical services within the reach of all and apublic supported system of child and adult education. In foreign affairs, it promises co-operation with the United States and Great Britain. It is fora policy of strengthening the defence of Australia. The party is opposed to communism. It has refused to recognise Communist China. It has pledged to supportthe SEATO and the Colombo Plan.The Liberal Party may be said to be the counterpart of the Conservative Party in England and the Republican Party in the United States. According to Brady,"Thus in the main, the Liberal Party is a party of resistance, although political strategy compels it to make concessions that may not always harmonisewell with its conservative principles. It is committed to modify collectivism and its major problem is to determine how much government action at any timeis expedient."33The Country PartyThe Country Party dates from 1918 and although never strong numerically, has exercised considerable influence on the government. It was originally formedby Graziers' Association and the Farmers and -Settlers' Association. This party came into existence on account of discontentment among farmers as a resultof the policy of the government to purchase all their products during the war period. The party covers all States except Tasmania where the AustralianCentre Party has official affiliation with the federal Country Party.It has always been a tightly knit minority party, maintaining a close relationship with rural people, especially the graziers, farmers and agriculturalists.Nevertheless, it proposes to stand for the interests of the whole country and is interested in a wide range of material issues and has given solid supportfor manufacturing as well as primary industries. Among the party's more consistent demands has been decentralisation and guaranteed prices for primaryproducts. It has its following in the rural areas but does not command much influence in cities.Besides the above main political parties there are other less significant political groups and parties among which are the Communist Party, Democratic LabourParty and Australia Party. Though small in voting strength, they have sometimes influenced the national affairs.To sum up, Australia has followed mainly the British tradition of a 'two party' government, but with some modifications. The two main parties are the LabourParty and the Liberal Party. The Labour Party has a socialist platform and is supported by the working class. The Liberal Party is supported by the urbanrich class and stands for free enterprise. It is anti-socialist. The Liberal Party and the Country Party traditionally form a coalition government. TheDemocratic Labour Party which broke away from the Australian Labour Party is anti-communist.347 THE AUSTRALIAN FEDERATION"When one considers the social turbulence and emerging nationalism of the 1890's, it is surprising that the Federal Scheme did not go further in a centralisingdirection, on the other hand, when one considers how hydra-headed was the lion in the path, it surprises that federation was not postponed for at leastanother decade".—Geoffrey SawerBirth of FederationBefore Australia became a federation in 1901, the six Australian States were self-governing British colonies. The Australian Colonies Government Act 1850which transferred power to the colonies also gave them the power to draft their constitutions. While the six colonies were asserting their independencefrom Britain and from each other, a need for some form of formal union was also being felt. The Australian leaders, once self-government had been achieved,began to advocate the case for some form of association of the colonies. The best known and most frequent advocates of some form of Australian Union wereHenry Parkes and Walker Griffith. Both of them spearheaded the federal movement. A convention of the six Australian Governments was held at Sydney in 1883to discuss common action in the face to French and German colonisation and acquisition in the South Seas. The Convention passed a resolution favouringthe formation of a "Federal Australian Council' to consist of two representatives from each self-governing colony and one from each Crown colony. The councilwas to have power to deal with naval defence on the high seas, relations with the Pacific Islands, the influx of criminals and such other matters as theparticipating colonies referred to it. The council, however, was given no independent financial resources nor any executive arm. The British35Parliament enacted the Federal Council of Australia Act 1885. The council a weak body as it was, only served the purpose of providing many colonial leaderswith regular opportunities for mutual discussion and the development of an intercolonial outlook. It also demonstrated the need for much stronger and irrevocabletype of federal union.With the initiative of Parkes, an advocate of a stronger union than the one created by the Federal Council Act 1885, a convention of Australian Governmentswith seven representatives from each colony was held in Sydney on March 2, 1891 to consider the need for a true federation. The Convention brought outa draft of federal constitution which preserved a substantial area of autonomous power for the colonies. The draft preferred the 'State-right' federalismof the U.S.A. rather than the 'Centralist' federalism of Canada. However, the 1891 federal scheme languished as the economic depression and bank failuresof 1890-1895, and their consequences in industrial strife got prior claim on political attention. However, the federal cause was kept alive by widespreadpopular movements carried by federation leagues.A second National Australian Convention began on March 22, 1897 in Adelaide. The Convention took the 1891 draft as its chief guide. The debate at the conventionexposed much the same divisions as in 1891. The Constitutional Committee appointed by the Convention presented its draft on April 12. This gave the federationa few more powers than did the 1891 draft; but in other respects, it was somewhat more State-right and conservative. The Convention adjourned on April22 to enable the Bill to be considered by the States' Parliaments; their debates produced 286 proposed amendments. On September 2 the Convention resumedsitting to consider the States' suggestions. They adjourned again and resumed in Melbourne on January 20,1898, for the final marathon session which endedon March 17. A Federation Bill was then adopted and sent off as agreed for popular acceptance. The Bill was passed at referenda by the required majorities.Thereafter the British Parliament passed the Federating Act on July 5, 1900 which received the Queen's assent on July 9. On September 17 the Queen proclaimedthat the Australian Commonwealth would come into existence on January 1, 1901. Thus was born the Australian Federation with six Australian Colonies asits original States.The Federal SchemeThe Australian federation has followed the American rather than the Canadian model. Thus the Commonwealth Act 1901 mentions the powers of the Federal Governmentleaving the residuary powers to the36states. The federal powers have been enumerated in the 39 sub-sections of Section 51. Among these powers are included foreign affairs, defence, immigration,customs and excise duties, external trade and commerce, post and telegraph services, coinage and banking, social services, the industrial arbitration beyondthe boundaries of the states. The Federal Government also controls the collection of income tax and distributes annual grants to the State governments.It has exclusive powers of legislation in respect of the seat of Commonwealth Government and all places acquired by the Commonwealth for public purposes,matters relating to any department of the public service the control of which is by the constitution transferred to the executive government of the Commonwealthand other matters declared to be within the exclusive power of the Commonwealth Parliament. The residuary powers in Australia are vested in the Statesas in Switzerland and the United States. These subjects are education, agriculture, charities, factories, health, forests, fisheries, police, prisons,state railways, liquor control, transport, and law enforcement. In case a law of a state is inconsistent with a law of the commonwealth the latter shallprevail, and the former shall, to the extent of inconsistency be invalid.The States have their own Constitutions with a power to amend them. The Federal Government has no control over the State Constitutions. The States havetheir own separate systems of judiciary and electoral laws. The Federal Constitution can be amended by a referendum, but only if a majority of the peoplein at least four of the six States ratify the proposal. The High Court of Australia has the power of judicial review. In the States the Supreme Court isthe highest Court of law. Appeals from the Supreme Court can be taken to the Privy Council, if the litigants so like. The Federal Courts hear State casesand the State Courts entertain federal cases. The Australian Senate consists of equal representation from the States. It has equal powers with the Houseof Representatives. The Parliament cannot form a new State either by Separation of territory from a State or by union of two or more state or parts ofstates without the consent of the Parliament of the states concerned.Consultations between the Federal and State Governments are carried out mainly through the annual Premiers' Conference. Here the State Ministers, togetherwith the Prime Minister and other Federal Ministers, work out the system of income tax allocation between the States and consult on federal grants forindividual State projects. The Annual Loan Council meeting of State Premiers and federal Ministers37allocates funds gathered through loan raising, which is the responsibility of the Federal Government. Federal and State Ministers also consult regularlyin matters of common concern through such bodies such as the Transport Advisory Council and the Agricultural Council.Australian Federation ComparedThe Australian federal system resembles more the American than Canadian federal system. Firstly, in Canada defined and specific powers are given to theprovinces and the residual powers are left with the federal Government, but in Australia and the United States the powers of the Federal Government arementioned with the residue lying with the states. Secondly, in Canada, the Lieutenant Governors of the provinces are appointed by the Governor-Generalon the advice of the Federal Government but in Australia the State Governors are appointed by the Crown without any reference to the Federal Government;in the United States the State Governors are elected by the people. Thirdly, in Canada, the Federal Government can disallow the laws passed by a provinciallegislature but in Australia or the United States the Federal Government has no power to interfere with the laws passed by the State Legislatures. Fourthly,the Canadian Constitution can be amended by the Parliament but the Australian Constitution can be amended by the Commonwealth Parliament and the peoplevoting at a referendum. In Canada there is no provision for referendum. In the United States also the Congress can amend the Constitution. Fifthly, inCanada the Constitutions of the provinces are laid down in the North America Act 1867, but in Australia and the United States the States have their ownconstitutions and are not a part of the federal constitution. Sixthly, the powers of the States in Australia are wider than (hose of the Canadian provinces,and enjoy more autonomy than is enjoyed by the provinces in Canada. The Australian States have their separate overseas representatives. They zealouslyguard their powers and are not willing to surrender the same to the Federal Government. The autonomy of the States is secured by the fact that the CommonwealthConstitution makes no attempt at regulating their governmental structure or providing any general definition of their powers. Seventhly, in Australia theStates have equal representation in the Senate and its members are elected directly by the citizens of the States voting as separate electorates. In theUnited States the position is similar. But in Canada the states do not have equal representation in the Senate. Its members are not elected but nominatedby the Governor-General for life.38A comparison of the federal systems of Australia and Canada shows that Canada has a strong Federal Government than the Commonwealth of Australia. Canadahad a unitary government at the time of its transformation into a federation. Consequently, unlike Australia or the United States, where the federatingunits were self-governing, the Central Government of Canada gave away some powers to the provinces and the rest remained with the Centre. Moreover, theLieutenant-Governors of the provinces are appointed by the Governor-General on the advice of the Federal Government. They are not elected by the peoplelike the Governors in the United States or appointed by the Crown on the advice of the State Governments like the Governors in Australia. As the federalGovernment in Canada can appoint and recall the Lieutenant Governor, it enables the Federal Government to have a say in the affairs of the Provincial Governments.This is so in India also where the power of the Central Government to appoint and recall the Governors has enabled it to influence the administration ofthe Slates. Moreover, the Senators in Canada are nominated by the Governor-General on the recommendation of the Prime Minister; therefore, the Senate isnot and cannot be the guardian of the interests of the provinces of Canada. The Minister of Justice in Canada has the power to disallow Provincial Actwithin one year after its receipt from the Lieutenant Governor of a province. This power gives the Federal Government the power to interfere in the affairsof a province. Thus it may be said that the Canadian Federal Government is stronger than the Commonwealth Government of Australia or to put it otherwisethe Commonwealth of Australia is far more federal than the Dominion of Canada. Although Australia is far away from the United States, its federal systemresembles that of the United States but it is otherwise with Canada although it is nearer CanadaChange in the Federal BalanceIn Australia, as in other constitutions having a federal form of Government, there has been a tendency for federal powers to increase at the expense ofthe States. The Commonwealth Constitution had preserved a wide area of governmental authority for the States; until about 1920, the working of the federalsystem corresponded pretty much to the expectations of the State-Righters at the Conventions. The electors of Australia have shown little desire to changethe formal shape of the federal structure. Only five out of 28 Bills for the amendment of the Constitution had been adopted upto 1973, neither of whichbrought about any fundamental change in the 'federal balance.' The 'double39majority' clause under Section 128 imposes formidable obstacles to any such fundamental change in the Constitution which may lessen the autonomy or powersof the States.However, although it is difficult to bring about a fundamental change in the Constitution, in its actual working, the Australian federal structure has changedremarkably. The three factors which brought about such change are: (i) judicial interpretation of the Constitution; (ii) federal grants to the States;and (iii) the growth of joint Federal-Slate activity under federal leadership.(i) Judicial Interpretation of the ConstitutionAccording to Professor Brady, the course of judicial interpretation has attributed to the Commonwealth far wider powers than the drafters of the Constitutionof Australia contemplated or would have approved. In 1920, the High Court gave a decision - the Engineers' case - which decisively changed the generaltrend of judicial interpretation of the Constitution in a manner tending to increase the relative power of the Australian Commonwealth at the expense ofthe States. In the Engineers' case it was held that the Commonwealth Court of Conciliation had power under Section 51 (xxxv) of the Constitution to makean award binding on an industry owned and run by the Government of Western Australia. It is now firmly established that when construing the meaning ofa granted federal power, as under Section 51, no assumptions should be made about the size of the residual power left to States, that is, 'implied prohibitions'have gone for ever. After Engineers' case, in a number of other cases the High Court has given wide interpretation of Federal powers. Such cases are A.N.A.Case, 1945; Fairfax Case, 1965; Brislan's Case, 1935; Concrete Pipes Case, 1971, Bootmakers No. 2, 1910. It is pointed out that the High Court of Australiais conscious of the dynamic needs of the people and has interpreted the constitutional provisions in the interests of the nation. According to Dr. Wheare,the result of this is that in Australia "tendencies are at work which may make it necessary soon to describe its Constitution and its government as quasifederal." However, it may be remarked that as compared to the United States Supreme Court, the Australian decisions in relation to federal powers havebeen cautious and on some matters narrow.(ii) Federal GrantsThe Federal grants to the States have enabled the Federal Government to exercise more control over the States. The grant-in-aid may be described as "a middleground between direct federal assumption of40certain state and local functions and their continuation under exclusive state and local financing, with haphazard coverage and diverse standards." Section96 of the Constitution provides that the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.Until 1914, customs and excise provided the bulk of public revenue, and it was for this reason that Section 87 required the payment to the States of three-fourthsof that revenue. In 1910, when that requirement ceased, the Australian Government negotiated in substitution the payment to States of an annual grant perhead of population and this continued till 1927. In the meantime income taxation became a major source of revenue and both the states and the AustralianParliament increasingly relied on income tax. Government borrowing also became an important source of public revenue. In 1927, a Financial Agreement wasconcluded between the States and the Federal Government and Australian Loan Council was created with the power to determine and supervise the loan raisingprogresses for all Australian Governments, the allocation of the proceeds and the servicing of the debts. Though the States had a voting majority on thecouncil the federal authorities can, however, veto a Loan Council decision, and thereby influence the public finance of the States. In 1942 the AustralianGovernment forced the States out of the income tax field and made it a federal monopoly. The States challenged it but the High Court upheld the federalActs valid. The States lost an important source of their revenue and became more dependent on the Australian Government for a substantial part of theirincome. State protests were made from time to time, but without effect. Later many other forms of State taxation were invalidated by the High Court makingthe States more and more dependent on federal grants, which now account for about sixty per cent of the total annual receipts of State Governments. Thesystem of specific purpose conditional grants has now become a key feature of Australian federal system. Under the conditional grant power, the AustralianParliament can set whatever conditions it pleases for a grant. There is no limitations on this power. However, a state is under no legal compulsion tomake it accept a grant.(iii) Joint ActionThe third factor to bring about a change in the federal balance has been the growth of joint Federal-State activity under federal leadership. Some examplesof comparative activities are: Loan Council, Premiers' Conference, Standing Committee of Attorneys General, Australian Education Council, Australian AgriculturalCouncil, Australian41FISHERIES Council, Australian Forestry Council, Australian Environmental Council, Australian Minerals Council, Australian Transport Advisory Council, AustralianWater Resources Council, Port Development Ministers' Council, etc. Through these councils, the Australian Government and the State Governments formallyjoin together for joint action. All Australian Ministries are involved in supervision, but the Prime Minister's Department makes a general supervisionover relations with the States.The above account shows that the Federal Government has a fairly high degree of control over the State Governments. The Australian Government, as seen above,has exclusive access to the largest and most elastic sources of revenue-customs and excise duties, and income-tax and a strong influence on loan raisingfor all the State Governments. The Federal law-making power has been given expansive interpretation by the High Court. Ross Anderson observes: "The historyof the fifty years of federation has been a history of the gradual growth of the power of the Commonwealth relative to the power of the States, until thegiant of today is scarcely recognisable as the child of 1901." However, it may be observed that though the Australian federation is leaning towards centralisation,by itself it does not mean the abandonment of federalism in Australia. What we find in Australia is 'co-operative federalism' rather than 'centralisedfederalism.'42 1THE CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA1 INTRODUCTORY"It is clear by any reasonable definition that the government system of People's Republic of China is totalitarian."—Harold C. HintonThe Birth of the People's Republic of ChinaOnce Napoleon said about China, "There lies a sleeping giant. Let it sleep, for when he wakes he will shake the world." These words of Napoleon have comeout to be true. Chinese, the lethargic opium eaters, have become the terror for Asia and a potential danger to world peace. Red China's emergence as anuclear power poses a threat to the territorial integrity of its neighbours. Hence it is a centre of attention in the world today not only because it attackedthe northern frontiers of India after having brutally conquered Tibet but for many other reasons as well. It has become a matter of attention because ofsome specific developments taking place in that country during the last few decades. The People's Republic of China has emerged as a major Asian power.The Kuomintang Government has been driven from the mainland to the island of Taiwan. Inside China, the Communist Party has consolidated total politicaland military power in its hands. A new form of communism throwing a fair challenge to erstwhile USSR's claims of ideological infallibility and omnisciencearose in China. China has followed a different way from that of the erstwhile U.S.S.R. It did not become a satellite of the Russian camp and chose herown way of building socialism. There have been many ideological differences between former Soviet Union and China due to which Sino-Soviet alliance becamean important factor in the structure of world politics. Moscow tried its best to woo China as the U.S.A. not only recognised China but made attempts toget closer to it. As a result of the above meaningful developments, an appraisal of Chinese political system has2always been a matter of general interest. A brief history of China as such is not out of place.China has been throughout its long history a land of turmoil and revolution. It was by 221 B.C. that the first China ruler assumed the title of the firstEmperor of China dynasty. The second dynasty to rule over China was Sui, the dynasty which ruled from 581 to 617 A.D. Then came the T'ang dynasty from618 to 907 A.D. From 907 to 960 China passed through a period of revolts, disunity and anarchy. In 960 Northern Sung dynasty took over China. Its rulelasted from 960 to 1125. The period of Sung dynasty is called the golden period in China's history of art, philosophy and prosperity. In 1125 the NorthernSung were defeated by the Southern Sung who ruled over China from 1127 to 1279 A.D. Then from 1280 to 1368 China was ruled by Mongols. The Mongols wereregarded in China as barbarians and foreigners with the result that there started a national upsurge against them. The Mongols were ultimately expelledand in 1368 Ming dynasty came to be founded which ruled till 1644 when it was overthrown by the Manchu dynasty. The Manchu dynasty rule was a period ofglory and also degradation for China. Harold C. Hinton writes of this period: "The zenith of Ching dynasty was unquestionably the reign of the wise andvigorous K'ang-tsi Emperor (1661-1722), which was the last golden age of traditional China. Under his able but war-like and arbitrary grandson, the Chien-lungEmperor (1736-1795), the state and society began to groan under the burden of extravagance, growing official corruption, intolerance of unorthodox ideas,and domestic and foreign wars. The empire was still wealthy and powerful, but its foundations were being sapped."During the rule of Manchu dynasty, China was torn off into different spheres of influence by western powers. If Russia had built up its sphere of influencein Manchuria, Germans got for themselves the province of Shantung and the British entrenched themselves in the Yangtze Valley. Even Japan and France hadgot areas under their influence. Hinton writes: "The fact that this trend did not lead to an outright partition of China into a number of foreign possessionswas due to two main causes. The first and more important was the rivalry among the powers themselves, which culminated in the First World War and whichpreserved a precious balance among their interests in China; the second was the policy of the United States which was reluctant to see China partitionedinto western spheres of influence or outright colonies." The result of this exploitation of China by western powers was that the Chinese people began togroan under untold sufferings. China3practically lost her status as an independent state and became a prey to imperialist exploitation. The Manchu regime could not help it. The victory of Japanover Russia in 1905 gave inspiration to the revolutionary and nationalist forces in China to combine together to overthrow foreign influence and domesticfeudalism. The revolutionaries under the leadership of Sun Yat-Sen staged a revolution on October 10,1911, put an end to China's feudal autocracy whichhad lasted for more than 2000 years and established the Republic of China.Sun Yat-Sen was an ardent nationalist who stood for democracy. He outlined a political and economic programme for leading China towards democracy and economicprosperity. But hardly was this programme put into practice when the reactionaries led by Yuan Shih-Kai seized power. The Provisional Constitution drawnby Sun Yat-Sen was thrown overboard and the Republic became a sham. In 1923 President Tsao Kun proclaimed a Constitution which was opposed by the Kuomintang(a party organised by Sun Yat-Sen to fight the reactionaries and save the Republic) and the Communist-Party of China. In 1927 the Kuomintang dominatedby Chiang Kai Shek renounced the policy of Sun Yat-Sen and with it the Kuomintang and Communist alliance came to an end. The Kuomintang ruled China tillthe end of the Second World War. In 1946 the Kuomintang Government introduced a new Constitution which was resolutely opposed by the Communist Party ofChina of which Mao Tse-tung was an undisputed leader since 1935, and therein ensued a civil war between the Communist and Kuomintang forces. The civilwar ended in 1949 bringing victory to the Communist Party. The Kuomintang government was thrown off from the mainland and made to retreat to the islandof Taiwan. Since 1949, China has been under governance of the Communist Party. During this period of 32 years or so, China has emerged as a major powerof Asia if not of the world as yet and become a centre of attraction for all the thinking persons in the world.For the first few years of its existence the People's Republic of China had neither a national legislature nor a formal constitution. During this period,it was governed by the Chinese People's Political Consultative Conference with a common programme and an organic law. The CPCC consisted of delegates representingthe Communist Party, other democratic parties, people's organisations, liberated areas, army, national minorities, overseas Chinese and other interestedsections of population. The Common Programme, which was a provisional Constitution, was an elaboration of the principles set forth4by Mao Tse-tung in 'On the People's Democratic Dictatorship'. The organic law prescribed the organisation of government.Framing of the ConstitutionIt was in September 1954 that All-China People's National Congress was elected though the work of drafting the formal constitution had been taken in handtwo years earlier. In November 1952, the Central People's Government Council - the highest executive authority in China - constituted a commission of 33members comprising top communist party leaders as well as a few new party men to draft the constitution. The first draft was completed in March 1954, andwas widely discussed in numerous public forums. A revised draft was published in June 1954, and was thrown open to discussion. It was sheer display ofdemocratic sentiments. Very few changes were actually effected in the second draft in the light of these discussions. Thus the third draft of the constitutionwas ready for examination by the Central People's Government Council which approved it after making minor alterations in it on September 9, 1954. The draftwas however adopted by the National People's Congress on September 20, 1954: The Constitutional framework underwent a radical change in 1978 when the newConstitution was implemented.The principal object of the old Constitution was to build up socialism step by step. Mao Tse-tung addressing the first National People's Congress, askedit to bear in mind its historic task "to unite the people of the whole country, to win the support of all our friends in all nations, to strive to builda great socialist state and to bestir ourselves to defend peace between the Nations and to further the cause of human progress." China has not followedSovietism blindly but like Poland and Yugoslavia has followed its own way of building up socialism. A new genre of Communism, which may fairly be giventhe name of 'Maoism' emerged in China. The central idea of Maoism according to its author was "Let the hundred flowers blossom: let the hundred schoolsof thought contend." This new Maoism was expected to be a new vision of totalitarian society and a sound departure from Leninist-Stalinist orthodoxy. Howeverin actual practice, a different tale is to tell in China. It is Mao's thought which predominates. It is Mao's interpretation of Karl Marxian ideology whichis to be accepted by the Chinese leaders interested in their survival. Flowers were never allowed to blossom. Other schools of thought were never allowedto flourish.5Cultural RevolutionIn early 1960's Mao became increasingly concerned about the spectre of revisionism which started haunting China. He was keen to ensure the continuity ofthe revolution after his death. In the words of Waller, "The problem that Mao faced therefore was how to continue with the modernisation of the countrywithout letting economic development and the growth of routinisation and bureaucratisation lead to any decline in ideological fervour." Mao first launchedthe Social Education Movement in autumn 1962, to combat the unhealthy tendencies. Mao's thoughts were widely circulated. The chosen CCP leaders were sentto the countryside to live and work with peasants on the communes and thus indulge in a sort of brain-washing. By 1966, the Socialist Education Movementgot merged with the mainstream of the Cultural Revolution.The so-called 'Cultural Revolution' was a ruthless attempt to root out Mao's opposition from persons at the top rung of party hierarchy. Mao dubbed intellectualsas the revisionists and foes of communism. Purges were resorted to. University presidents, university party secretaries, teachers, intellectuals and partypropagandists were condemned and purged from the party. Top leaders like Teng and Liu were disgraced. Red guards got precedence over the Party itself.By December 1966, the Red Guards under the guidance of Mao, wrecked the Party machine and replaced it by a revolutionary seizure of power from below. Severeclashes occurred between Red Guards and the PLA in the Provinces. The Red Guards attacked even the central government offices and officials in Peking.Things fast deteriorated when the Red Guards resorted to looting and mass-scale destruction.When chaos reached climax in summer 1967, Mao feared that traditionally independent provinces like Tibet, Sinkiang, Inner Mongolia and Szechvan might reasserttheir autonomy. Hence he ordered return to moderation and mobilised the army to restrain Red Guards if necessary. Efforts were made to get the Red Guardsback into the classrooms. Some discredited leaders like Chen Yi were rehabilitated in their old positions. Some members of the Cultural Revolution Group,strangely enough, like Wang Li and Ch'i Pen-Yu were denounced as ultra leftists.Another resurgence of violence engineered by Mao's wife Chiang Chi'ing broke out in May and July 1968, in order to claim a greater representation for theRed Guards on the Revolutionary Committees. Mao had to rely on the PLA and seek assistance from the Army to put a6stop to the escalating conflict. "This last burst of fighting was to prove to be political death for the Red Guards."In the twelfth enlarged plenum of the Central Committee called in October 1968, instead of Red Guards, responsible comrades for Revolutionary Committeeof provinces, municipalities and autonomous regions and the PIA members were discernible. Lie Shao-Ch'i, once an important architect of Cultural Revolution,was expelled. The Party's constitution was re-drafted.All this reflects that the so-called Cultural Revolution destroyed the Communist Party and demoralised its former members. In the words of Waller "Eventhough the Party will be resurrected it is doubtful if it can ever regain the transcendental position, it once held in Chinese Society." Moreover the ever-increasinginvolvement of the army in political life endangered the very peace and political stability of the country. It reversed Mao's famous dictum that "the Partycontrols the gun and will never allow the gun to command the party."Besides, it is evident that the Cultural Revolution aimed at extermination of some top leaders like Liu Sho-Ch'i and Teng Hsiao-ping who toed a line differentfrom that of Mao. It aimed at converting Mao into a demi-God. However after his death there has been a gradual denigration of the great leader. A recentlyissued document on the achievements of the Party describes the last decade of Mao's life as a 'tragedy' and the Cultural Revolution based on erroneoustheoretical foundations. It states, "The history of the Cultural Revolution has proved that Comrade Mao Tse-tung's principal thesis for initiating thisrevolution conformed neither to Marxism-Leninism nor to Chinese reality."1The Cultural Revolution and its aftermath reveal that Mao emerged as a victorious leader. He withstood the onslaught of challenging leaders successfullyand envisaged a New Constitution to consolidate the victories of cultural revolution and further strengthen the roots of socialism.Constitution of 1975The Constitution of 1954 remained in force till 1974. It was substituted by a new Constitution in January, 1975. The National Peoples Congress had not beenconvened for about ten years. In a sudden announcement, the fourth NPC met in a secret session in January, 1975 and adopted a New Constitution. Vice-PremierChang Chun-pio explained to the fourth National People's Congress in 1975 that actually the draft of the New Constitution was initiated five years earlierthough it was being7The Constitution of 1978The Constitution of 1975 framed under the guidance of Mao proved to be a transient affair. By the beginning of 1978, Huo Kuo-feng emerged as the supremeleader. He put his opponents behind the bars. He did not even spare Maos' widow and her Shanghai supporters (Gang of four). Under Huo political stabilityseemed to have been achieved. Hence the NPC in its February-March meeting enacted a new Constitution. The disgraced and discredited leaders of Maos' timewere invited to attend NPC meeting. The New Constitution was fairly liberalised though major changes in the old Constitution were avoided. Hence the 1978Constitution was portrayed as the new Constitution within the old framework.A brief description of the features of 1978 Constitution will enable us to compare it with the first Constitution of 1954 and the next Constitution framedin 1982.The Constitution of 1982Hua Guo-feng the soul behind the Constitution of 1978 and a liberalist met an eclipse by June, 1981. The chairmanship of the Party was assumed by Hu Yao-bang.Hua was denounced for building of personality cult around him. Vice Chairman Deng Xiao-ping became the real centre of authority. The axe fell on the Constitutionof 1978 as well. It was replaced by another constitution promulgated in December 1982. Presently China is governed according to the New Constitution. TheNew Constitution has effected minor alterations in the structure of government. The constitution comprises a Preamble and 138 articles. The Preamble refersto the achievements of the country since the Revolution and also states the basic task of the nation in the years to come. It emphasises "Under the leadershipof the Communist Party of China and the guidance of Marxism, Leninism and Mao Zedong thought, the Chinese people of all nationalities will continue toadhere to the people's democratic dictatorship and follow the socialist road." The Preamble refers to the elimination of the exploiting classes in Chinaand also stresses the perpetuation of class struggle for a long time to come. Taiwan (Formosa) has been described as a part of the "sacred territory ofthe People's Republic of China."The Constitution of 1982 reiterates Chinese faith in the independent foreign policy and also five principles of 'Panchsheel'. China has been described asa multinational unitary socialist state under the people's democratic dictatorship led by the working class - an alliance of peasants and workers. It revivesthe office of the President of8Republic of China which was abolished by the Constitution of 1975.The revised Constitution of Communist party also has changed the designation of party Chairman. He is to be designated Secretary General of the Party.How long this trend continues is too early to predict. Besides, some of the major components of Mao's theories and policies have been abandoned. For instance,paramountcy of class struggle has been repudiated. An empirical approach has been brought to bear on the problems of economic development. A modest measureof political liberalisation has been envisaged. Authoritarian controls have been a bit relaxed. However a full-fledged liberal democracy is as yet a farcry.Deng Xiaoping held the sway after Mao and died after a prolonged illness on February 19,1997. Jiang Zamin the chosen heir during his life time took overas the Secretary General of the Party. The transition has been smooth. However it is contended by the critics that an era ended with Deng's death. JiangZamin is all powerful in the party. He holds the offices of President of China and the Supreme Commander of People Liberation Army (PLA) and the SecretaryGeneral of the party.2Another important event in the history of China pertains to the transfer of Hongkong—Britain last major possession—to China on June 30, 1997 after 156 years.The 1071 sq. km territory which Britain had acquired from China after the Opium War was returned to it in the presence of Prince Charles who representedthe Queen officially in Hongkong.China is now displaying greater willingness to maintain cordial relations with the major world powers and follow the UN charters' essential principles.The Chinese Vice Premier said at a news briefing at Tiananmen Square on March 12, 1998 that China intends to sign the international covenants on civiland political rights. He also remarked that the Chinese Government has so far signed 17 such conventions and attached great importance to them. He alsosaid that China has made substantial progress in improving its relations with the major powers of the world and predicted further success in 1998. In thisconnection the scheduled visits of Clinton—(USA President) to China, the visit of the Chinese President to Britain, the Sino - Russian unofficial Summitbetween Zamin and Yeltsin and the visit by Zamin to Japan—the first by the Chinese President to that country are the pointers to the emergence of liberalismin China.Reference1. The Hindustan Times, dated July 1, 1981.2. Ibid., March 10, 1998.92 MAIN FEATURES OF THE OLD CONSTITUTION OF CHINA (1954 CONSTITUTION)"Red China is more democratic than other totalitarian regions."The People's Republic of China is a unique type of slate. The uniqueness of the Republic consists in the fact that its constitutional system is foundedupon the principles of Marxism-Leninism as applied to China. Though within the Communist ranks China has followed a different way from that of the U.S.S.R.,the Constitution of China lays clear emphasis upon the objective of building a socialist society and gradually abolishing the system of exploitation. TheConstitution of the People's Republic of China, like many other communist constitutions, is more of a manifesto than a constitution. 'According to LiuShao-Ch'i the constitution contains many provisions' which are in the nature of a programme. Its main features arc as follows:(i) A Brief DocumentThe Constitution of China is a simple and brief document containing only 106 articles. It is written in easy and spoken language and can be easily understoodby the working masses. The Constitution was drafted by a committee appointed for the purpose by the Central People's Government Council on January 13,1953, under the chairmanship of Mao Tse-tung. The committee prepared three drafts of the Constitution. The first draft was made public in March, 1954.It was revised by the committee in the light of discussions held widely by various parties and people's organisations which led to the second draft ofthe Constitution and was made public on June 14, 1954. The second draft was again discussed and the Chinese populace freely examined and proposed changesin the draft. The Drafting Committee then prepared a third draft10taking into account the changes proposed in the discussions held all over the State. This third draft was adopted by the Central People's Government Councilon September 9, 1954, and by the National People's Congress on September 20, 1954.The constitution lays down in detail the political, economic and social objectives of the socialist regime. Article 4 for instance refers to the determinationof the People's Republic to ensure the gradual abolition of systems of exploitation and the building up of a socialist society. The Preamble of the constitutionand chapter one are also replete with numerous reforms of doctrine character. In the words of Clyde, "The constitution of 1954 is an important politicalmanifesto announcing the basic principles of state power, military organisation, economic, cultural and educational policy and foreign policy."(ii) A Transitional ConstitutionThe Preamble of the constitution reveals that the document is meant to cater to the needs of the country during the transitional period i.e., from the inceptionof the People's Republic of China to the attainment of Socialist Society. The leaders of the country have been often proclaiming that period of transitionwill last from 15 to 20 years. However the tightening of the iron hand of General Mao over China reveals that the transitional period will never end andtotalitarian regime will ever remain entrenched on Chinese soil.(iii) Socialist EconomyThe Constitution of China not only defines the structure of Chinese Government but also lays down the economic programme that the country has to followin the transitional period of twenty years. The Preamble to the Constitution states that the ultimate goal of the Chinese people and government is to establisha full-fledged socialist economy and eliminate exploitation step by step by means of socialist transformation of agriculture, handicrafts, commerce andindustry. The Constitution has laid down the concrete steps to be taken with a view to transform the existing society to a socialist society. It exhortsthe State to bring about by economic planning a constant increase of productive forces and enrich thereby the material and cultural life of the peopleand consolidate the security and independence of the country. The Constitution forbids any person to use his private property to the deteriment of publicwelfare. In short, China has enacted for herself a Constitution which is based on the principles of Socialism as it is understood in the communist countries.It may be remarked that in the People's Republic of China the dictatorship of the Proletariat has been 11no less ruthless in its methods nor less totalitarian in the sweep of its authority as it was in the U.S.S.R.(iv) People's Democratic StateThe Constitution declares China a people's democratic state led by working class and based on the alliance of workers and peasants. the working class providesthe leadership in China today. The workers have entered into an alliance with the peasants. They did so during the period of revolution and they have doneso now in the national reconstruction. The peasants constitute 80 per cent of the total population of China: and worker-peasant alliance means the unityof the vast majority of the citizens. The worker-peasant alliance is a basic condition of ineffective leadership of the working class. The working classhas also united with handicrafts workers and other non agricultural workers., All the social classes have lent active support to the State in the workof Socialist construction. All the classes are united under the leadership of the working class and its leader Mao to make China a socialist state. Thegovernment in the country is said to be that of the people themselves. China, it is claimed is a people's democracy unlike bourgeoisie democracy of USA.In the former democracy, the power in the State is in the hands of majority of the people, whereas in the latter it is in the hands of capitalists whoform only a minor part of the total population. The people exercise their power through National People's Congress, The Congress practises 'democraticcentralism.' The organs of the State, are required to maintain close contact with the people.(v) Democratic CentralismThe Chinese State is built on the principles of democratic centralism as opposed to bureaucratic centralism. Democratic Centralism is an important principleof the working of Chinese constitutional system, In the words of Liu Shao Chi "Our political system has a high degree of centralism but is based on a highdegree of democracy." He further explains that it is not "despotic centralism of handful of big feudal lords and capitalists", but it is the "democraticcentralism of the people led by the working class." Mao Tse-tung observes, "It is at once democratic and centralised, that is, centralised on the basisof democracy and democratic under centralised guidance." In the words of Professor Chou Keng-Sheng: "This is a political system in which state organs derivetheir power from the people or the people's representatives but with the leadership centralised at highest level." Democratic Centralism means that. "Localunits can do exactly as they like so long as the agents of the governments which are above them do not object ."Under this principle12the local units of government exercise virtually complete independence in managing their own affairs and have ample opportunities of participating in theactivities of higher units of government. In this sense the government is democratic. But on the other hand the higher governmental bodies exercise thepower of formulating basic policy and of supervising, checking and even vetoing the acts of the units below them. In this sense, the government is centralised.Democratic Centralism "presupposes centralism in basic questions, in general guidance, in the maximum unification of economic activity according to onestate-wide plan." In short, democratic centralism combines uniformity and centralism in fundamentals with multi-formity and local self-government in details.Democratic centralism differs from bureaucratic centralism inasmuch as in the latter real control lies in the hands of officials who are not responsibleto the people. Under bureaucratic centralism democracy may exist in form but the essence of power rests with a centralised officialdom insulated againstpopular control. Under democratic centralism power is exercised at all levels by elected representatives who are accountable to the people. The principleof democratic centralism signifies that "each organ of authority, being formed by a procedure, at once democratic and logical, is responsible to its electorsand is bound to execute their will, while at the same time it is also responsible to superior organs of authority and bound to fulfil all their orders(provided they are given within the limits of their respective jurisdiction)". Its WorkingCentralisation of State PowerIn China the power is completely centralised in the National People's Congress which guides and supervises provincial people's congress. The provincialpeople's congresses guide and supervise the county congresses which in their turn guide and supervise the town people's congresses. Thus every congressis subject to. the supervisory and overruling power of the congress above it. It means a downward stream of laws, decrees and instructions from the apexorgans. The National People's Congress is the all-powerful authority in China. On the administrative side, the State Council is the all-powerful organof administrative power which is supervised by National People's Congress. The State Council supervises the local councils and can remove them. The localCouncils are subject to guidance and supervision of local people's congresses at corresponding level of13which they are creations. Moreover, they are subject to the guidance and supervision of local councils at the next higher level. Finally, they are subjectto the co-ordinating guidance of the State Council itself. The decisions and orders of the local councils can be revised or annulled by local people'scongresses at the next higher level. In this way, the whole structure of state power and administrative power is highly centralised. The administrativeorgans cannot act independently of the people's congresses. As the ultimate source of guidance is the National People's Congress of China and its StandingCommittee, the element of centralisation remains paramount in the Chinese political system. Paul. H. Clyde rightly opines, "In a word the emphasis wason centralism not on democracy. Emerging too from democratic centralism was the principle of unitary government ensuring to the Central Government completecontrol of the policy at all local levels."Democratisation of State PowerWhereas there is centralisation in political set-up of China, democracy also characterises it. The deputies to the local people's congresses at the townlevel are elected by citizens above eighteen years of age who can recall the deputies whenever they like. There is universal suffrage and every adult maleor female is entitled to vote without any discrimination on the basis of property, education or any other kind. The deputies to the county people's congressesare elected by the deputies of the local people's congresses who can recall them. Likewise, the deputies to the county people's congresses elect deputiesto the provincial people's congresses and can also remove them from office. Finally, the deputies to the National People's Congress are elected by themembers of the provincial people's congresses and the former can be recalled by the latter. Thus, it is clear that the real power lies with the Chinesepeople themselves. Their deputies are their spokesmen. The deputies to the National People's Congress have the right to address questions to the StateCouncil which is obliged to give an answer. Article 17 of the Chinese Constitution lays down that "all organs of State must rely on the masses of the people,constantly maintain close contact with them, heed their opinions and accept their supervision." According to Article 18 "all servants of the state mustbe loyal to the people's democratic system, observe the Constitution and law and strive to serve the people." In this way deputies and civil servants haveto be conscious of their obligations towards the people.14Democratic Centralism in the Communist Party Democratic centralism is the organisational principle of the Party. The Democratic aspect is discernible fromthe election of all the leading party organs at all levels. This means the election of Party committees by the Party Congresses at each level in the hierarchy.At the highest level, National Party Congress elects the Central Committee. The ejected party committees are accountable to their respective party congresses.As such, they are required to submit reports regarding their work to their respective congresses at regular intervals. Moreover, they are required to listento the opinions of the masses both inside and outside the party and accept their supervision. Further, the individual party members have been allowed todiffer from the party decisions and directives, and reserve their opinions and report difference of opinion direct to the central committee bypassing otherlevels.Centralism in the party is evident from the fact that the individual is subordinate to the organisation, the minority is subordinate to the majority, thelower level is subordinate to the higher level and the entire Party is subordinate to the central committee.In actual practice, the central aspect of Party organisation out weighs the democratic, The Party committees are empowered to arrange their own re-election.Thus party forms "pyramid with orders being transmitted from the apex down to the lowest levels for execution and information concerning how policy isbeing implemented, sent back up the Party chain of command." The Party requires that Party members unquestionably obey directives from higher Party authorities..However they have not to obey blindly but with creativity and imagination. Further, through study sessions, criticism and self-criticism, organisationalflexibility is maintained to suit local conditions and strengthen the solidarity of party members.Democracy has been blended with centralisation in the political set-up of the People's Republic of China. The advantages of local autonomy have been combinedwith the advantages of central control. The critics are of the opinion that in democratic centralism, centralism has primary significance. In the opinionof Ogg and Zink, "It is difficult to believe that democratic centralism embodies as much of democracy as of centralism." The general view is that in theChinese political setup there is greater emphasis on centralism than on democracy. The chinese are proud of their system. They claim that rapid economicprogress cannot be achieved without some centralism. A non-centralised politico-economic structure can hardly achieve the same15rate of economic progress as a centralised system, Democracy must be, blended with centralism; none is to be carried to its extreme, if we wish rapid economicgrowth. Democratic centralism is an amalgam of democracy and centralism. It cannot be denied that during the last few years of its existence the People'sRepublic of China has achieved sufficient economic progress, and has become first rate power of A That shows the success of political system based on democraticcentralism. The Chinese bodies give credit to democratic centralism for incredible achievements.Fundamental Rights and DutiesThe Constitution of the People's Republic of China carries one of the most extraordinary Bill of Rights known to history The fundamental rights of the Chinesepeople are enumerated in Chapter III of the Constitution. According to Professor Lou-Chia Lin of the Peking University, the provisions of Chapter III area full reflection of 'the fact that the Chinese people are masters of the country." The Constitution enumerates not only the traditional rights incorporatedin most of the constitutions but introduces a number of radical innovations in the pattern of traditional fundamental rights. It guarantees to the chinesecitizens a large number of socio-economic rights such as the rights to education etc., in addition to a vast number of political rights .It is these socio-economicrights which give to the Chinese Bill of Rights as unprecedented quality.Moreover, what is special of the Chinese Constitution is that it does not stop with mentioning the rights of citizens, but also contains a list of the dutiesof citizens. As a matter of fact it may be said that the Chinese Constitution lays more emphasis on the duties than on the rights of citizens. Article100 of the Constitution says that "citizens of People's Republic of China must abide by the Constitution and the law, uphold discipline at work, keep publicorder, and respect social ethics," It is the patriotic duty of every citizen in China to abide by the Constitution. The Constitution, as we have referredto above, is not merely a set of rules and regulations governing the structure of the Government but is also a statement of objectives and programme forthe period of transition. Every able-bodied citizen of China regards work as a matter of honour Even women are encouraged to work in suitable places outsidetheir homes. Work must be done in a disciplined manner.Specific Rights of Chinese CitizensThe following are the specific rights of the Chinese citizens which have been guaranteed to them by the Constitution.16government. His functions are similar to those of the British or Indian Prime Minister. His first and important function is to select his Ministers, thoughhe can include anybody, he pleases in his Cabinet and the Governor-General will not interfere with it. However, there are certain factors which the PrimeMinister has to take into consideration at the time of selecting his colleagues. He has to give representation to all the States and has to make his Cabinetas broadly representative as possible. When the Labour Party is in power, it is the caucus of the Labour Party which nominates a panel from which the otherministers are selected. The Prime Minister and other ministers belonging to the Labour Party are responsible to the caucus which alone regulates theirrelations and also controls them. However, when other parties are in power, the Prime Minister has a freer hand in the selection of his colleagues. AsChairman of the Cabinet he presides over its meetings and conducts its proceedings. He has a right to be consulted by the Ministers on the major problemsof the departments. He sees that the decisions of the cabinet are carried out by the various departments. He is the leader of the House of Representativesand leader of his own party in the Parliament. He is a senior parliamentarian among his colleagues. His long experience gives his opinions a greater weightand authority. His preeminence is shown by his chairmanship of the cabinet, the leadership of parliament, his position as chief channel of communicationwith the Governor-General and his acknowledged position in the country as leader of the majority party. While it is true that he is not a dictator, hehowever, occupies a position of preeminence. But much depends upon his own calibre, the range of his interests, his capacity for work, his tact and wisdomand his influence within the party. Presently John Howard is the Prime minister of Australia.17Regional autonomy applies in areas where people of national minorities live in compact communities. National autonomous areas are inalienable parts of thePeople's Republic of China.Thus women and national minorities have the same rights as men and members of the Han nationality.(ii) Right to WorkArticle 91 of the Chinese Constitution guarantees to all citizens of China the right to work which means the right to get remunerative employment with aview to support oneself and one's dependents. The Chinese State has embarked upon a programme of economic development and it goes to her credit that unemploymenthas been greatly reduced in China. The volume of productive activity has been rising constantly and employment is being created at a fast rate.(iii) Rights to Rest and LeisureThe right to work is accompanied by the right to rest and leisure. To guarantee this right, the state has prescribed working hours and holidays. In stateand large private industrial enterprises, the working day has been fixed at eight hours and if conditions of work are unhealthy, workers have to work onlysix hours a day. The important thing, however, is not the mere declaration of the right to rest and leisure and fixing the hours of work, but actual stepshave been taken in China to make it possible for the working masses to avail themselves of this right. The Chinese Government has provided workers' sanatoria.There are rest homes and sanatoria attached to the factories and the enterprises. All beauty spots can be visited by workers and arrangements have beenmade for their board and lodging.(iv) Right to Social SecurityArticle 93 guarantees the right to social security to the citizens of China. The state provides material assistance to its citizens in old age, sicknessand disability through social insurance, social assistance and public health services. The Labour Insurance Regulations passed as early as in 1951, providefree medical treatment and financial help in case of sickness, disability, maternity, employment injuries and old age. Trade unions have been entrustedwith the administration of insurance system.(v) Right to EducationChinese citizens also enjoy the right to education. For this purpose, the State has established various types of schools and other cultural and educationalinstitutions. The number of educational institutions has greatly increased since 1949, and so has the total enrolment of students.18Before 1949, education in China was confined mostly to the rich and the masses were generally deprived of it. But now the proportion of students belongingto workers and peasants class has greatly increased. The state has extended educational facilities not only for young people but also for adults settledin life. Short-term middle schools for workers and public servants have been opened with a view to fill previous gaps in their education.(vi) Right to bring ComplaintAll citizens in China have the right to make a complaint orally or in writing to any organ of the state at any level against any person working in any organof the state for transgression of law or neglect of duty. The complaints are seriously looked into and possibly dealt with. The complainants are not victimised.(vii) Political RightsThe Constitution of China grants the following political rights to all citizens; right to vote and stand for election, freedom of speech, freedom of press,freedom of assembly, freedom of association, freedom of procession and freedom of demonstration. According to Article 86 of the Constitution "citizensof the People's Republic of China who have reached the age of eighteen have the right to vote and stand for election whatever their nationality, race,sex, occupation, social origin, religious belief, education, property, status or length of residence except insane persons and persons deprived by lawof the right to vote and stand for elections." Article 87 reads, 'Citizens of the People's Republic of China enjoy freedom of speech, freedom of the press,freedom of assembly, freedom of association, freedom of procession and freedom of demonstration. The state guarantees to citizens enjoyment of these freedomsby providing the necessary material facilities." Thus the Constitution not only guarantees the political rights but also provides the necessary materialfacilities. It may be noted that the voting age in China is low as compared to other countries specially because it is also the age at which a person hasthe right to get elected. In India the voting age is twenty-one while the age for being elected to the House of People is twenty-five. The low voting agein China is explained by saying that opportunity is given to young men and women with initiative to take part in the organs of state power which widensthe scope of democracy and is good for the future.Only insane persons and persons deprived by law are excluded from the right to vote and stand for election. The law deprives the former landlords and bureaucraticcapitalists from this right. But this19exclusion is temporary. Landlords who observe law and do not participate in counter-revolutionary activities and engage in productive. labour or other workbeneficial to the people for five years can have themselves enrolled as voters. All expenses incurred in connection with elections are paid by the Governmentout of public funds.It is the general impression outside China that there is no political freedom worth the name in China. In this connection it may be remarked that the Chinesepeople have the right to enjoy political freedom mentioned above so long as their activities do not amount to an attack on the Constitution or counter-revolution.Counter revolutionaries are not tolerated in China. The people can enjoy their freedom only within the framework of the Constitution. If a person is counter-revolutionaryor attempts to wreck the Constitution, he would be severely punished. What is a counter-revolutionary activity and what amounts to wrecking the Constitutionare, however, matters to be decided by the Communist Party which exercises a monopoly of political power in China. Any expression of opinion which runscounter to the party line is denounced as counter-revolutionary. Thus, political freedoms can be enjoyed by the Chinese people so long as what they sayor do, does not involve a challenge to the policies formulated by the top leaders of the Communist Party. Such actions or doings would amount to challengingthe Constitution. Once a decision has been taken by the party, everybody is expected to abide by it. In China there is hardly any place for the enemiesof Chinese Communism. According to Liu Shao-Ch'i "Anyone who expects our constitution to ensure freedom for traitors and counter-revolutionaries is boundto be disappointed.19 Though China to begin with did not go to the same extent in ruthlessly suppressing the enemies of Communism as Soviet Russia, neverthelessa sort of repressive era did gradually prevail there. The Chinese leaders do not conceal the fact that China is a one-party state. As a matter of factin the communist countries, there is hardly any ground for the existence of a number of rival political parties because there are no antagonistic classeswith irreconcilable interests. Further it can be safely asserted that the law does not deal mercifully with those who are accused of being enemies of theregime.Freedom of speech also exists in name only; In the absence of any ideology of communism as interpreted by Mao, freedom of speech becomes meaningless. Thecriticism of bureaucratic machinery engaged in the task of implementation of policies laid down by the Party and its undisputed leader is allowed but neitherthe Party nor its leader20can be condemned. Thoughts of Mao are treated as "Sermons on the Mount'. No body can open his lips when that great 'Sir Oracle' speaks.The same can be said regarding freedom of association. Though minor political parties and non-communist organisations are allowed to function in China,yet that is done on the sole condition that they accept the socialistic objectives and toe the line of the Communist Party and follow rigidly the thoughtsof Mao. Freedom of association thus, in a one-party state, is a contradiction in terms.The critics are sceptical regarding social and economic rights as well. These rights display sheer political hypocrisy. They represent mere noble aspirationsof Mao and his stooges. In fact China has failed to eradicate unemployment. Hence it is keen for military ventures which means reduction in country's populationand automatic solution of unemployment problem.(viii) Right to Freedom of ReligionArticle 88 of the Chinese Constitution guarantees freedom of religious beliefs. The citizens may practise any religion. There are mosques and churches inChina though few people go to these religious places. The Government is spending generously on the repair and preservation of religious buildings. Themajority of Chinese follow Buddhism.In addition to the above rights the Constitution of the People's Republic of China guarantees to the citizens freedom of person, home, correspondence andresidence. No citizen may be arrested except by a decision of a court or with the sanction of a procurator. The procedure for arrest and detention hasbeen prescribed and widely circulated among the people so that they may know their rights. Article 90 says that (a) the homes of citizens of the People'sRepublic of China are inviolable, (b) privacy of correspondence is protected by law, and (c) citizens enjoy freedom of residence and freedom to changetheir residence.A question that may be asked is how far the Chinese Constitution provides definite and adequate safeguards against arbitrary encroachments on the rightsof citizens. In India, a citizen has a constitutional right to move the Supreme Court to get his fundamental rights enforced in case of violation. TheHigh Courts declare a law ultra vires if it contravenes any provision of the constitution. The power of the courts known as the power of judicial reviewis the ultimate safeguard against the abuse of power by the government. The Chinese Constitution does not provide for judicial review. In other words,the Supreme People's Court of China has no power to determine the21constitutionality of the laws passed by the National People's Congress or the decrees issued by its Standing Committee. Moreover, the judges and the Presidentof the Supreme People's Court are elected by the National People's Congress and can be removed by it. Thus they cannot act impartially, rather they willplay tools in the hands of legislators and the party leaders who are instrumental in their appointments. In other words, the Constitution of China doesnot provide any check upon the government if it exceeds its authority and makes inroads upon the rights of the people. This peculiarity of the Chinesepolitical system has led many critics to remark that China does not have a constitutional government. However, it may be noted that the Chinese constitutionalsystem is based on the assumption that what makes the rights of the citizens real is not the existence of constitutional safeguards and limited governmentwith separation of power, but the basic character of a given society which alone can afford a real protection to the citizens' rights. It is only in aclassless society that liberty can be real. In a society on communist lines, no amount of constitutional safeguards will enable the masses of people toenjoy real liberty. There is an iota of truth in their assertion.Duties of CitizensThe Constitution of China, as we have remarked above, is peculiar not in granting some economic and social rights to the citizens but its peculiarity liesin that unlike the constitutions of the United States, India or other democratic countries, it contains a list of the duties of citizens. As a matter offact, the Constitution lays more emphasis on the duties than on the rights of citizens. Article 100 says that "citizens of the People's Republic of Chinamust abide by the Constitution and the law, uphold discipline at work, keep public order, and respect social ethics." Other duties imposed are to regardwork as a matter of honour (Art. 11), "to respect and protect public property" (Art. 101), "to pay taxes according to law" (Art. 102), "to defend homelandand to perform military service" (Art. 103). According to Liu Chin-Lin the performance of these duties by the citizens creates the conditions necessaryfor the full enjoyment of their rights. The unity of people's rights and duties is held to reflect the identity, of the interests of the state and individualcitizen.(vi) People's CongressChina has a system of people's congresses. The state authority is exercised by(a) National People's Congress, and22(b) Local People's Congress.The National People's Congress is the highest and the central organ of the suite authority in China. It consists of the deputies elected by provinces, autonomousregions, municipalities directly under central authority, armed forces and Chinese residents abroad. It is the only legislative authority for the wholecountry and its laws cannot be declared null and void by any other organ of the State power. It enjoys unlimited and illimitable authority. It combinesin itself the legislative, executive and judicial powers.The Local People's congresses are the highest legislative and executive authority in the local regions in which the State of China is divided. The deputiesto the people's congresses of provinces, municipalities directly under the central authority, counties and municipalities divided into districts electedby the People's Congresses at every level see that laws and decrees are duly observed and executed. The deputies to these congresses are subject to supervisionby the units which elect them.The system of People's Congresses makes China a new type of State, different from the bourgeois democratic states. The 'Congress system' forms the basisof the political organisation of China and represents the highest form of People's democracy. While in bourgeois states, sovereignty belongs only nominallyto the people, power being exercised really by the exploiting minority, in China it belongs really to the people who exercise it through their congressesand supervise and control their working. In autonomous regions, autonomous 'chou' and autonomous counties, the form of the organs of self-government isdecided according to the wishes of the people. The Chinese system differs from parliamentary form in another respect too. In the latter, the principleof separation of powers is employed to separate the legislative from the executive power. In China the congresses arc empowered to exercise all functionsof government. The entire governmental system of China is hierarchy of congresses. There is a people's congress at every local level which is guided andsupervised by the congress at the next higher level. Thus the National People's Congress guides and supervises provincial people's congresses; provincialpeople's congresses guide and supervise the country congresses; and the latter guide and supervise town people's congress,(vii) Multinational StateThe People's Republic of China is a single multinational state. Thereare about 60 national minorities in China and they constitute nearly 7 23per cent of the total population. The majority nationality is the Han nationality forming 93 per cent of the total Hui, Yi, Tibetan, Miao, Mongolian, Tung,Tai, Puyi, Korean and Yao. The minorities are free to develop in their own way consistent with over-all national interest. In the areas inhabited by thenational minorities, organs of self-government are determined in accordance with the wishes of the majority of the people of the nationality or nationalities.These organs enjoy autonomy within specified limits. The higher organs of the State are required by the Constitution to assist the national minoritiesin their political, economic and cultural development. The Constitution has guaranteed to them some rights in addition to the rights enjoyed by the peoplein general, and has recognised their political personality by making the areas inhabited by them the units of Chinese Republic.A Unitary StateUnlike that of the U.S.S.R. which claims itself to be a unique federation - a federation of federations - the constitution of China caters to a unitaryslate. According to Article 3 of 1954 constitution, "The People's Republic of China is single multinational state. AH nationalities are equal. Discriminationagainst or oppression of any nationalities are prohibited. Regional autonomy applies where people or national minorities live in communities. Nationalautonomous areas, are inalienable parts of the People's Republic of China." Thus the national minorities in China unlike that of the (erstwhile) U.S.S.R.do not possess right of secession.Moreover, outwardly these minorities enjoy autonomy and are shown great consideration, yet in actual practice this oft-repeated and widely displayed autonomyis a mask to hide 'Chinese central control.' The ruthlessness with which the Maoists have been thrusting the so-called social, economic and political reformsin Tibet after its subjugation in 1950, stand witness to the hollowness of Maoists' claim of assuring regional autonomy to the national minorities andexcessive centralised control.(viii) Chinese People's Political Consultative Conference (CPPCC)There is a democratic united front in China for which provision has been made in the Constitution. In this united front all democratic parties, groups andclasses take part under the leadership of the Communist Party of China. This front is called Chinese People's Political Consultative Conference. The Preambleto the Constitution reads:"In the course of the great struggle to establish the People's Republic of China, the people of our country forged a broad people's24democratic united front, composed of all democratic classes, democratic parties and groups, and popular organisations, and led by the Communist Party ofChina. This people's democratic united front will continue to play its part in mobilizing and rallying the whole people in a common struggle to fulfilthe fundamental task of the state during transition and to oppose enemies within and without."The CPPCC met for the first time in September 1949. It was CPPCC which proclaimed the founding of the People's Republic of China and adopted the commonprogramme which was provisional constitution. The National Committee of the CPPCC served the country well during the first five years of the life of thenew Republic. With the establishment of National People's Congress the original purpose of CPPCC came to an end but it continues today to play its roleof forging alliance between the workers and the peasants and extend alliances to all others with whom cooperation is possible. Its tasks are as follows:(a) to settle social problems arising out of inter-relationship between different classes to keep in close touch with the people at large, to bring theiropinions to the notice of governmental bodies, and to make suggestions;(b) to settle all problems affecting cooperation within the CPPCC through consultation among themselves;(c) to consult with one another on international problems;(d) to consult with one another on the nomination of candidates to the National People's Congress and Local People's Congress at the same level; and onthe nomination of members of the political consultative conferences at all levels; and(e) to study Marxism-Leninism on a voluntary basis, and to strive to remove outworn way of thinking on a voluntary basis.Thus the CPPCC is a novel institution in China. It is a united democratic front of all democratic parties, classes and groups and its role is that of forgingan alliance between the various nationalities and parties. It is led by the Communist Party of China. It typifies the great unity of the Chinese peoplein their fight against foreign aggression, in defence of peace, and in their determination to build a socialist society.Concluding this survey of the main features of the old Chinese constitution, we may remark that the Chinese political system differed materially from thatof the so-called democratic countries. A layman who thinks and tries to know something about China is impressed by her political system and philosophyand the conformity of the Chinese behaviour with the attitudes and exertions necessary for the fulfilment25of planned progress. The constitution of China did not follow too rigidly any particular doctrinaire pattern though it had been very much influenced bythe political system and practices in the (erstwhile) Soviet Union. The National People's Congress of China had its counterpart in the Supreme Soviet ofthe Soviet Union. The Standing Committee of the National People's Republic was almost the same thing as Presidium of the Supreme Soviet. But the ChinesePeople's Political Consultative Conference was a new institution which did not have its counter-part in the Soviet Union. In brief, the Chinese constitutionwas a product of circumstances and had been greatly impressed by the Chinese temperament and attitude. It may also be noted that this constitution wasnot contemplated to be a final document on the form of government. It gave only a direction to the nation which had set before itself the goal of full-fledgedsocialist economy. This goal could not be achieved by a stroke of pen and so China fixed twenty years as the period of transition. The constitution wasmeant to serve the people of China for this period of transition.263 FEATURES OF THE 1978 CONSTITUTION OF CHINA"Remoulding China politically and economically was only a part of the programme."—Clyde Paul H.The New Constitution was adopted on March 5, 1978, by the fifth National People's Congress of the People's Republic of China as its first session. The Constitutionalsystem is founded upon the principles of Marxism-Leninism-Mao Tse-tung thought, applied to China. The New Constitution also (like the old) lays emphasison the building of a socialist society, preserves in continuing the Revolution under the dictatorship of the proletariat and carry forward the three greatrevolutionary movements of class struggle, the struggle for production and scientific experiment. It aims at making China a great and powerful socialistcountry equipped with modern agriculture, industry, national defence, science and technology by the end of the present century.1 Following are some ofthe salient features of the New Constitution:(a) A brief documentThe New Constitution is a simple and brief document containing a Preamble and four chapters comprising only sixty Articles. It is couched in simple andspoken language, easily tangible to the working classes. The old constitution adopted by the National People's Congress on September 20,1954, consistedof 106 Articles. The New Constitution is thus a briefer document. It avoids irrelevant details and concentrates on the enumeration of principles of theconstitution, fundamental rights and duties of the citizens and a brief account of the governmental structure. Article 60 makes a mention about flag, emblemand capital of China. This could have been kept out of the Constitution.27(b) A Socialist StateThe Constitution describes People's Republic of China as a socialist state of the dictatorship of the proletariat led by the working class and based onthe alliance of workers and peasants.2 The New Constitution consolidates the gains attained during the past 24 to 25 years. The Preamble of the Constitutionstates: "The dictatorship of the proletariat in our country has been consolidated and strengthened and China has become a socialist country with the beginningof prosperity."3 The state applied the socialistic principles "He who does not work neither shall he eat" and "from each according to his ability to eachaccording to his work."4 The Chinese claim that the triumphant conclusion of first great cultural Revolution has ushered in a new period of developmentin China's socialist revolution and socialist contribution. Moreover two kinds of ownership of the means of production i.e., socialist ownership by thewhole people and socialist collective ownership by the working people further reflect socialistic order.5 The individual labourers are allowed to engagein individual labour involving no exploitation and within law. However they have to take to socialist collectivisation ultimately.(c) Supremacy of the Communist PartyThe Communist Party of China enjoys supreme position in the country. It is the core of leadership of the whole Chinese people.6 It has been described asthe vanguard of the working classes. Marxism, Leninism-Mao Tse-tung thought is to be the guiding ideology of the People's Republic of China. In fact, allimportant functionaries in the top governmental bodies are taken from the ranks of the Party and they remain in power so long as they retain the confidenceof the top leaders of the Party. The Chairman of the Central Committee of the Party commands the armed forces of the Republic of China.7 Liberation Armyis the workers' and peasants' own armed force led by the Party.(d) Sovereignty of PeopleAt least superficially speaking, the people of China enjoy supreme position. The Constitution emphasises "All powers in the People's Republic of China belongto the people."8 The people exercise State power through National People's Congress and the Local People's Congress at various levels. The Deputies ofthe People's Congress are subject to recall by their respective constituents. Moreover all these congresses and other organs of the state power practicedemocratic centralism.28(e) Unitary Multinational StateChina is a unitary multinational state unlike that of USSR which is a federal multinational state. All the nationalities are equal. The Constitution expectsthe various nationalities to remain united and have fraternal love for each other. Discrimination against or oppression of any nationality and acts whichundermine the unity of nationalities are prohibited. The constitution exhorts the countrymen to avoid big nationality Chauvinism and local nationalitychauvinism. All nationalities possess the freedom to use and develop their own spoken and written languages and preserve or reform their own customs andways. The constitution also clearly states that regional autonomy applies in an area where a minority nationality lives in a compact community. All thenational autonomous areas have, however, been described as inalienable parts of the People's Republic of China.9 It reflects that autonomy has not beentaken to the farthest end. Moreover autonomy is not to be exercised at the cost of national unity or territorial integrity. In fact, no Communist countryin the Communist world will advocate autonomy which causes dismemberment of the country. China is no exception.(f) Personal Property AllowedIn a socialist state, it seems rather anomalous that the individual in China has been allowed to hold personal property as well. However that property isnot to be built by exploitation of others. According to an article 'The state protects the rights of citizens to own lawfully earned income, savings, housesand others means of livelihood.'10 In Soviet Union also, small scale personal property has been permitted. That hardly conflicts with the concept of socialismadopted in China. The State clearly prohibits any person from using any means, whatsoever, to disrupt the economic order of the society, undermine theeconomic plans of the state, encroach upon or squander state and collective property or injure the public interest.11(g) Work—an honourable dutyThe key to success of China in the economic domain is their emphasis on work. Work in China has been described as an honourable duty for every able-bodiedcitizen. Hence they believe in the principle "He who does not work neither shall he eat". The State promotes socialist labour emulation. It applies thepolicy of combining moral encouragement with national reward, in order to brighten the citizens' socialist enthusiasm and creativeness in work.29(h) State—a Socialistic DemocracyA socialistic democracy has been set op according to the New Constitution. The people have been assured the right to participate in the management of stateaffairs and economic and cultural undertakings. Besides, they possess the right to supervise the organs of state or their personnel.12 It is more a hoaxthan a reality.(i) Special Role of Liberation ArmyThe Chinese People's Liberation Army has been described as the workers' and peasants' own armed force and the pillar of the dictatorship of the proletariat.The state is to play special role in revolutionising and modernising the Army. The fundamental task of the armed forces is to safeguard the Socialist revolutionand Socialist construction to defend the sovereignty, territorial integrity and security of the state and to guard against subversion and aggression bysocial imperialism, imperialism and their lackeys.13(j) A Chapter on Rights and DutiesThe New Constitution also lays emphasis not only on the political rights and civic freedoms but also on the social and economic rights of the people. Besides,there is again a sizable mention about duties also. The right to vote and contest election are the important political rights Freedom of speech, press,correspondence, assembly, association, procession, demonstration are the important civic freedoms assured to the citizens. The right to work, rest andleisure and right to material assistance comprise impressive economic rights.14 The civic freedoms exist only on paper. Political rights also become meaninglesswhen vote is to be cast for a communist comrade and election is secure only when a Chinese national toes the Communist leaders line. Some of the conspicuousduties incorporated in the constitution are to support the leadership of the Communist Party of China, and the Socialist system; to safeguard the unificationof the motherland; to abide by the law and the constitution; to protect the public property; to observe labour discipline and public order; to defend themotherland and resist aggression; to perform military service and to join the militia according to the law. The list of duties is indeed impressive anda developing democracy should incorporate such duties in the constitution.(k) Democratic CentralismThe principle of democratic centralism which was a pivotal feature of the old Constitution, has been adopted in the New Constitution also. According toArticle 3 of the Constitution. "The National People's30Congress, the Local People's Congress at various levels and all other organs of state practice Democratic Centralism." In other words, they are democraticallyconstituted and are accountable to those who elect them but at the same time the top centrally elected bodies predominate. The Chinese claim that theirdemocratic centralism has a high degree of centralism though it is based on high degree of democracy also. They emphasise that their centralism is notdespotic centralism of feudal lords and capitalists. Rather it is the democratic centralism of the people led by the working class. In actual practicehowever in the democratic centralism of China 'Centralism has primary significance. The local units can do exactly what they like provided that they areprepared to dance to the tune of higher units of the Government and the Chairman of the Party and his Central Committee'.15 Besides Democratic centralismis the hallmark of the communist party which runs the Governments.(1) Unicameral LegislatureUnlike that of the Soviet Union, the New Constitution of China also like the old, establishes a unicameral legislature. The National People's Congress consistingof 3000 deputies is the central legislature body. Evidently, it is an unwieldy House and meets very infrequently. Hence a smaller body termed as standingcommittee attends to all the routine functions entrusted to the National People's Congress, during its recess. The Constitution describes the NationalPeople's Congress as the highest organ of state power though in actual practice it is a mere yesmen body or a ditto chamber which deliberates and acceptswhatever is dinned into the ears of its members by the Chairman of the Communist Party or other top leaders of the Party.(m) Preamble of the ConstitutionAn impressive Preamble is a prelude to the first chapter of the Constitution. The Preamble pays rich tributes to the Chinese people who fought heroic struggleunder the leadership of the Communist Party headed by Mao Tse-tung, against imperialism, feudalism and bureaucratic capitalism. It also highlights Mao'sproletarian revolutionary line in the political, economic, cultural and military fields and in foreign affairs and his great victories in socialist evolutionand socialist construction through "repeated struggles against enemies both at home and abroad and through the first great Proletarian Cultural Revolution."It has been claimed in the Preamble that the dictatorship of the proletariat has since been consolidated and strengthened and China has become a socialistcountry. The triumphant conclusion of the Cultural Revolution has, it is emphasised, ushered in a new era of31development in China's socialist revolution and socialist construction. The people are exhorted to continue the revolution under the dictatorship of theproletariat, carry forward the three great revolutionary movements of class struggle, the struggle for production and scientific experiment and make Chinaa great and powerful socialist country with modern agriculture, industry, national defence and science and technology by the end of the 20th century.The Preamble induces the people to oppose revisionism, prevent the restoration of capitalism, enhance the unity of all the nationalities in the countryand consolidate and expand the revolutionary united front based on the worker-peasant alliance. The people are expected to meet a political situation inwhich centralism and democracy, discipline and freedom, unity of will and personal ease of mind and liveliness prevail. Such a political situation aloneconsolidates the proletarian dictatorship and build up the country.In the international sphere, it is stressed that China should establish and develop relations with other countries on the basis of the five principles ofmutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other's internal affairs, equality and mutualbenefit and peaceful co-existence. China is not supposed to seek hegemony over other countries and strive to be a superpower. It must uphold proletarianinternationalism by seeking unity with the proletariat and the oppressed people and nations throughout the world. It must strive for the progress and emancipationof humanity.16ConclusionAn appraisal of the features of the New Constitution enables us to conclude that it does not radically differ from the old Constitution. However the Chairmanof the People's Republic of China about whom there was a specific mention in the old constitution and Chinese People's Political Consultation Conference- a novel institution - are conspicuous by their absence in the New Constitution. The Chairman of the standing committee of the People's Congress has beenaccorded the status of a formal head of the state as was the case in Soviet Russia under the Stalin Constitution. The Party has been constitutionally recognisedand accorded a supreme position. Its chairman is to be the head of the armed forces.The Constitution, however, radically differs from those of the western democracies. It does not follow too rigidly any particular doctrinaire pattern thoughit has been considerably influenced by the32political system and practices in the Soviet Union. The National People's Congress of China has its counterpart in the Supreme Soviet of Union. The StandingCommittee of the N.P.C. is analogous to the Presidium of the Soviet Union. Democratic Centralism has been the hallmark of both the Socialist Constitutions.The Communist Party was and remains the guiding angel, in fact a beacon-light for the toiling workers. The Party finds a prominent place in the ChineseConstitution unlike that of the western democracies which do not accord constitutional recognition to the parties. As such political parties in such countriesexist as extra legal growth.References1. Preamble of the New Constitution.2. Article 1 of 1978 Constitution.3. Preamble of the Constitution.4. Article 10.5. Articles.6. Article 2.7. Article 19.8. ibid.9. Article 4.10. Article 9.11. Article 8.12. Article 17.13. Article 19.14. See the articles in the Chapter on Rights and Duties.15. See the details in the next chapter.16. Extract from Preamble of the New Constitution of China.334 SALIENT FEATURES OF 1982 CHINESE CONSTITUTION"The New Constitution sums up the historical experience of Chinas' socialist development, reflects the common will and fundamental interests of all nationalitiesin the country confirms to the situation in China and meets the needs of socialist modernization."As referred in Chapter 1,1982 Constitution effected minor amendments in the Constitution of 1978. The salient features are as follows:A written documentLike the previous constitution, it is a written document comprising 103 articles. It is not as brief as constitution of 1975 which consisted of 30 articlesand not as elaborate as constitution of 1954 which comprised 116 articles and a long Preamble.FlexibilityThe present Constitution like that of earlier constitution is flexible. According to Article 64, amendment may be moved either by the Standing Committeeor by more than one-fifth of the total members of the National People's Congress. Amendment so moved can be effected only if more than two-thirds of allmembers of the Congress accord approval. Keeping in view the dominance of the Communist Party, such a majority to support the amendment is a foregone conclusion.Unitary StateChina is a multi-national unitary state. Though a vast country inhabited by the largest population, it is not divided into antonomous provinces or stateson the pattern of India or Canada. Nor it is a 'federation of federation' like that of former Soviet Union. The Chinese Constitution34does not even pay a lip homage to the federal concept. It however emphasises freedom and equality of nationalities though they are devoid of power. Accordingto the Preamble of the Constitution "China is a unitary multinational state built up jointly by the people of all its nationalities". It is claimed thatthe unity of the country has been achieved against imperialism and public enemies of the people. As such state promotes the unity of the nation thoughallows diversity of nationalities. None of the nationalities is however allowed to pose a threat to the nation through chauvinism or secessionism. A strongcentral government has been established though limited autonomy to the provinces has been guaranteed. For administrative convenience the country has beendivided into 21 provinces, 5 autonomous regions and 2 cities - Beijing and Shenghai under the central government. The provinces work as mere agents ofthe centre and their autonomy is a mere force. The provinces are also divided into autonomous Chou, counties, autonomous counties and municipalities. Theyare mere local administrative units which enjoy such powers as are delegated to them by provincial and regional authorities. The national minorities infact enjoy only cultural autonomy and that too to a limited extent. The control of the Party is all-pervasive. Even cultural autonomy is manipulated toserve the interests of the Party. For instance in Tibet, the non-Tibetans are being settled to merge their cultural entity into Chinese culture. The Tibetansare neither allowed equality nor any freedom to run their own affairs. A violent current in Tibet in 1989 for the attainment of autonomy is a witness tothis hard fact.Thus it can be concluded that China is a highly unitarian state. The so called equality of all nationalities as provided in article 4 and the assertionof their lawful rights is a mere figment of imagination. The nationalities do, however, speak their own language and preserve or reform their own waysand customs. The National Peoples' Congress is the exclusive legislative authority and Beijing—the national capital, the centre of authority.Power with the PeopleAll power in China belongs to the people. It is exercised through the National People's Congress and the local people's congresses. All organs of statepower are supposed to rely on the masses of the people, maintain close contact with them, heed their opinions and accept their supervision. The feudallords and the capitalists have been divested of all political rights. However they have been allowed to earn a living in order to enable them to reformthrough work and become citizens who earn their livelihood by their own labour."35Planned EconomyRight from the very beginning, China adopted planning for the regulation and improvement of its economy. Planning is indispensable in a socialist state.The five year plans launched by China have striven to ameliorate the lot of teeming millions. Revolutionary changes have been made in the domains of agricultureand industry. A bulk of industries have been brought under the State control. Through planning frantic efforts have been made to achieve the Great LeapForward programme. Chinese aim at a modernised state by 2000 A.D. The Constitution rightly proclaims that through economic planning "the state directsthe growth and transformation of the national economy to bring about the constant increase of productive forces in this way enriching the material andcultural life of the people and consolidating the independence and security of the country."Peoples Democratic DictatorshipThe Peoples' Republic of China can neither be categorised as parliamentary nor presidential type of democracy. The Republic is now headed by the Presidentwho is only a nominal head and performs ceremonial functions. There is a State Council headed by the Prime Minister which is supposed to be the real executiveauthority in China. The State Council is responsible to the National Peoples Congress—the Unicameral legislature and a duly elected body. Now the PrimeMinister cannot hold office for more than two terms i.e., 10 years. All this reflects a democratic character of the polity. However dictatorship is discerniblefrom the fact that the State Council functions under the guidance of the Communist Party of China. The Chairman of the Communist Party holds the sway.Chou En-lie the first Prime Minister who remained in office from 1949 to 1976 (the earlier constitution did not impose restriction of tenure) was playingsecond fiddle to Mao - the chairman of the Communist Party. Now the Chairman is designated as the General Secretary of the Party. It was Zhao Ziyang whoformerly held and Jiang Zamin who now holds the reins of authority in the real sense as General Secretary of the Party (since 1987) and Li Peng — (thePrime Minister) though dynamic comes next to the General Secretary and elderly statesman Deng Xiaoping. Thus it is the party and its top leadership whichgoverns the country with iron hand. The Preamble of the 1982 Constitution rightly proclaims "Under the leadership of the Communist Party of China and theguidance of Marxism-Leninism and Mao-Zedong thought the Chinese People of all nationalities will36continue to adhere to the peoples democratic dictatorship and follow the socialist road..."Democratic CentralismThe principle of democratic centralism—a Soviet innovation has been portrayed by the critics as superior to bureaucratic centralism. The Communist Partyof China had adopted the democratic centralism in its organisation and working even before the occurrence of the Revolution. The principle was adoptedaccording to the organic law of 1949 which declared "The Government of People's Republic of China is a government of the people's congress system basedon the principle of democratic centralism." The same idea was asserted in the constitution of 1954,1978 and now 1982. The National People's Congress andother organs of state, practice democratic centralism. The participation of adults (now of 18 years) in the election of National People's Congress andother organs of state power and acceptance of principle of accountability of higher governmental organ to the lower elected body reflects adoption of democracy.Centralism is however, predominant. AH policy formulation and supervision of its implementation is done by the Central organs like the Standing Committeeof the National People's Congress and the State Council. The preponderating role of the Communist Party, its Secretary General, in particular is all pervasiveand of overwhelming nature. This combination of democratic participation and accountability at all levels and centralised policy making and its implementationby the Central organs or according to the dictates of the apex of the communist party is termed as democratic centralism. This principle has been the basisof Soviet governmental system and also of the Communist China. However in both countries, Centralism had been of primary significance.A Chapter of RightsChapter 2 of the Constitution incorporates fundamental rights and duties. Broadly speaking, rights can be categorised as economic, social and cultural,political and civil rights and personal liberties. Article 33 signifies that all persons holding the nationality of Peoples Republic of China are citizensof the country. As such they enjoy equality before law and are guaranteed all fundamental rights. They are also required to perform the duties prescribedby the Constitution. Right to work, right to rest, right to material security in the old age and in case of physical incapacity are important economicrights.37Right to education, freedom to engage in scientific research, and other cultural pursuits are salient social and cultural rights. Political rights compriseright to vote and seek election, right to criticise and make suggestions to any state organ or functionary. Civil Rights and personal liberties includeright to freedom of speech, of press, of assembly, of association, of procession and demonstration and freedom of religion. Besides, personal freedom ispromised in China. Unlawful detention or deprivation is prohibited. The personal dignity of the citizens is inviolable. Women enjoy parity with men inall fields— economic, political, cultural and family life.The Fundamental Rights seem to be imposing but in a communist country legal truth is a political untruth. According to Article 51 of the Constitution, theenjoyment of these rights should not mean infringement upon the interests of the state, society, collectives or lawful freedoms and rights of other citizens.The existence of this Article has resulted in the negation of fundamental rights and freedoms.Besides these rights as per constitution, certain fundamental duties are also to be performed viz., to safeguard the unity of the country and all its nationalities;to defend the motherland and resist aggression; to abide by the Constitution and the laws; to pay taxes; to practise family planning; to work if personis able-bodied.A Socialist State: The Constitution is based on the definite ideology of Marx, Engels and Lenin as interpreted by Mao Zedong. The Chinese democracy is afour class dictatorship over three enemies — the feudalists, the imperialists and bureaucrat-capitalists. The Constitution thus establishes a peoples'democratic state, led by the working class and based on the alliance of workers and peasants. All power belongs to the people though it is exercised byand under the guidance of the Communist Party of China.Unicameral Legislature (NPC)Unlike the now defunct Soviet Union, China has opted for a unicameral legislature - National People's Congress. According to Article 58, legislative powerof the state is exercised by the National People's Congress and its Standing Committee. The number of deputies and manner of their election are prescribedby law. The NPC is elected for a period of 5 years. At least one session of NPC is convened every year by the Standing Committee or one fifth of the membersof the NPC. The NPC is the sole lawmaking body for the country. However during its recess, legislation is enacted by its Standing Committee. Economic andsocial planning is also controlled by the NPC. It approves the budget38and elects the Prime Minister, the President and the Vice President of China, the President of the Supreme Court and Procurator General of the Supreme People'sProcuratorate. It possesses the power of removal of all their incumbents as well. Though its powers seem fairly impressive yet in practice it is only aformal body. It functions under the control and guidance of the Communist Party of China.Standing CommitteeThe 1982 Constitution like its predecessors has made a provision for the Standing Committee of the National People's Congress. Like its prototype SovietPresidium, it is a continuous functioning legislature. The Constitution does not specify the composition of the Standing Committee. It is elected by theNational People's Congress and its composition varies from election to election. It comprises one chairman, several vice chairmen, one secretary generaland a number of members. The tenure of the Standing Committee is coterminus with the National People's Congress. The Standing Committee is described asthe permanent executive agency of the National People's Congress. However, the powers exercised by it, according to 1954 constitution, have been curtailed,by the New Constitution. With the reintroduction of office of the President in 1982 the Standing Committee has been reverted to the pre-1975 position.Thus it has lost its old glamour. In the process of gradual advance towards real communism, the role of the Communist Party has adversely affected theposition and effective powers of the Standing Committee. Thus its old position has suffered a set back, due to the creation of office of President in 1982and the overwhelming influence of the Communist Party.Peculiar role of JudiciaryThe role of judiciary in a socialist country is entirely different from the Western democratic judiciary. China is no exception. The Supreme Peoples' Court- the highest organ of Chinese Judiciary - is the guarantor of the socialist legality. It possesses both original and appellate jurisdiction as well. Itdeals with cases of national importance in original jurisdiction and hears appeals against the decisions of the higher People's Courts in the provincesand autonomous regions. The Court consists of President, Vice Presidents and other judges. The President is elected by the National People's Congress for5 years and is removable by it. The Vice President and other judges are elected by the Standing Committee for 5 years on the recommendation of the Presidentand are removable by the same authority. The President, Vice President and other judges arc re-eligible for election only once.39The judicial structure is pyramidical, local peoples' courts constitute the base and Supreme People's Court is at the apex. Unlike that of USA, China hasopted for single judiciary whose main task as already said is to establish socialist legality under the leadership of the Communist Party. The Courts arealso part of the apparatus of the democratic dictatorship managed according to the dictates of the leadership of the Communist Party.405 CONSTITUTIONAL STRUCTURE OF CHINA"The National Peoples' Congress is the highest organ of state power and all authority of the Peoples Republic of China flows from it."The Constitutional structure of China is composed of National People's Congress - a unicameral legislature, the Standing Committee of the National People'sCongress; the President-ceremonial head of the state, the State Council. The cabinet with the Premier as its head and a judicial system comprising SupremePeople's Court and the Supreme Pepple's Procuratorate.National Peoples Congress (NPC)The National People's Congress is the unicameral legislature. China opted for unitary form of government. Hence second chamber for the protection of units(states) was hardly required. According to the Constitution the NPC is the highest organ of State power and the exclusive legislative authority of position: The Constitution is silent about the composition of the Congress and the mode of election of its members. Prior to the adoption of the presentConstitution the (fifth) National People's Congress was composed of 3456 members. In 1998 its membership consisted of 2942. Its strength and the mode ofelection is to be prescribed by law. Election of NPC does not cause excitement as is the case in India or USA. It is a quiet nonspectacular affair.Tenure: It is elected for a period of 5 years. Elections are organised and conducted by the Standing Committee. Elections to the new NPC must be completedtwo months before the expiry of the tenure of old NPC. Under the exceptional circumstances, the standing committee by41a two third majority can put off the elections. In the latter case, the old NPC is to continue. The new NPC is however to be elected within one year afterthe end of abnormal circumstances.Sessions: At least one session of NPC is to be convened in a year by the Standing Committee. It may convene more sessions either on its own initiative oron the proposal of more than one fifth of the total membership of the NPC. The President of the Republic has not been empowered to summon or prorogue thesessions of the NPC.The present NPC meets more frequently than its predecessor did. For instance after cultural revolution (in 1966) for nine long years no session was held.Just for comparison, it may be pointed out that seventh NPC elected in 1988 held its first session in March 1988 and next in March 1989.Functions: The functions of the NPC have been enumerated in article 62 of the Constitution. Its main functions are as under:(a) It is the sole law making body of the country. During its recess the standing committee makes laws. All laws concerning criminal offences, civil affairsand the state organs are enacted and amended by the NPC.(b) It supervises the enforcement of the constitution.(c) It elects the President, the Vice President of People's Republic of China, the Prime Minister of China and other members of the State Council, the membersof the Standing Committee, the Auditor General and the Secretary General of the State Council and the Chairman of the Central Military Commission. TheNPC decides on the choice of all other members of the military commission on the recommendation of its chairman. Besides, it elects the President of theSupreme People's Court and also the Procurator General of the Supreme People's Procuratorate.(d) Article 64 empowers it to amend the constitution by 2/3 majority of the deputies of the NPC.(e) It controls the economic and social planning of the country. As such it examines and approves the development plans and reports on their implementation.(f) It examines and approves the Budget prepared by the Government. It also examines the reports on the implementation of the budget, (g) It accords approval to the establishment of provinces, autonomous regions and municipalities directly under the Central Government.42(h) It can alter the boundaries of these provinces regions or municipalities, (i) It can take decision regarding the establishment of special administrative regions.(j) It takes decision on questions of war and peace. A formal approval of NPC is required for the declaration of war and conclusion of peace.(k) It can remove the officers elected by it. (1) It can exercise such other functions and powers as the highest organ of the state power should exercise.In other words, it is given free hand in respect of all other matters not specified in the constitution.The powers enumerated above reflect that the NPC possesses multifarious powers. It is said to be the highest organ and the exclusive legislative authorityof the country. All other organs function under its supervision and control. But in a Communist country what is a legal truth, is a political untruth.The NPC meets only once a year. Hence it is the Standing Committee which performs most of its functions during its long interval. Besides the authorityof the Communist Party is all-pervasive. It can never take a decision of its own. It is the Party and not the NPC, which is the centre of power in People'sRepublic of China. The role of the NPC is absolutely formal and purely ceremonial. The NPC in its session held on March 14,1998 elected the outgoing PremierLi Peng as its Chairman.436 THE STANDING COMMITTEE OF NPC"...like the Presidium (USSR) the standing committee serves as a small and manageable group for giving the necessary legal form and authority to acts ofstate which are essentially decided upon in higher councils of party."—Peter S. TangThe Standing Committee of People's Republic of China like its prototype - Presidium of Soviet Union (not in existence now) is the permanently functioningorgan of the government. Its size is however much larger than the Presidium. It, in fact is the National People's Congress in position and electionIt consists of a Chairman, the Vice Chairman, the Secretary General and the members. The Constitution or the law does not fix the number of members. TheNPC decides the membership. For instance in 1978 it consisted of 22 vice chairmen and 144 members. The 5th National People's Congress (February, 1978)fixed 175 members as the strength of the Standing Committee. However, presently it consists of about 200 members. The Standing Committee is responsibleto the NPC and is elected by it. Its meetings are presided over by Chairman.Tenure: Its tenure is the same as that of the NPC. It continues functioning until a new standing committee is elected after fresh elections of the NPC.The NPC however can remove any member or dismiss the entire standing committee before the completion of its tenure.Functions: It performs multifarious functions - legislative electoral, executive and judicial.Legislative Functions:(a) It summons the NPC.44(b) When NPC is not in session, it enacts legislation on its behalf.(c) It supervises the work of State Council, the Central Military Commission, the Supreme People's Court and the Supreme Peoples Procuratorate.(d) When NPC is not in session, the Standing Committee supplements and adopts amendments to the statutes enacted by NPC—a sort of delegated legislativepower.Elective: It possesses following elective functions which it exercises during the recess of and on behalf of the NPC:(a) It decides on the choice of the ministers, the Auditor General and the Secretary General of the State Council on the recommendations of the Premierwhen NPC is not in session. It cannot choose the Premier who is elected by the NPC on the recommendation of the President. Likewise it does not make choiceof the Vice Premiers and the State Councillors whose appointments are made by the NPC on the recommendation of the Premier.(b) It decides on the choice of the members of the military commission, on the recommendation of the Chairman of the Commission, when NPC is not in session.(c) It appoints and removes the Vice Presidents and judges of the Supreme People's Court, members of its judicial committee and the Chairman of the MilitaryCourt at the suggestion of the President of Supreme People's Court.(d) It appoints and removes Deputy Procurators General and procurators of the Supreme People's Procuratorate, members of its procuratorial committee andthe Chief Procurator of the Military Procuratorate at the suggestion of the Procurator General of the Peoples' Republic of China. It also approves theappointment and removal of the chief procurators of the provinces and the autonomous regions.Executive: It performs number of executive functions as well. It includes diplomatic and military functions:(a) It decides on the appointment and recall of the Chinese ambassadors and other diplomatic representatives accredited abroad. Their appointments are madeby the President after decisions are taken to this effect by the Standing Committee.(b) It decides on the satisfaction and abrogation of treaties with the foreign countries. The treaties are ratified or abrogated by the President in accordancewith its decisions.45(c) It institutes titles and ranks for military and diplomatic personnel.(d) It institutes state medals and titles of honour and decides on their conferment.(e) It decides on the grant of special pardons but the criminals concerned are actually granted the pardon by the President in accordance with its decisions.It will not be out of place to point that all the functions of diplomatic nature, conferment of titles and medals and pardon of criminals used to be performedby the Standing Committee according to constitution of 1978. As per 1982 constitution, the standing committee decides and the President implements thedecisions.(f) There are military functions assigned to it as well. It lakes decisions regarding proclamation of war when NPC is not in session. However such a proclamationis made in the event of armed attack on the country or in the fulfilment of international treaty obligations concerning common defence against aggression.(g) It decides regarding general or partial mobilisation.(h) It decides on the enforcement of martial law in the entire country or a part thereof.Judicial FunctionsThe Standing Committee is vested with judicial functions as well.(a) It interprets the laws - a function performed by the Supreme Court in USA and India. The interpretation of laws by the Standing Committee is unquestionable.(b) It interprets the constitution as well. It supervises the enforcement of the constitution and the laws.(c) It can annul decisions, orders and administrative rules framed by the state council that contravene the laws and the constitution. In a way it can rejectany of the decisions of the State Council.Financial: In this field, its functions are rather insignificant. It is the NPC which approves the social and economic development plans and also the budget.Hence the Standing Committee is left with examining and approving partial adjustments to the development plans and the state budget.Besides the functions specified in the preceding paragraphs, the Standing Committee may also perform such other functions as are assigned to it from timeto time by the NPC. This widens the jurisdiction46of the Standing Committee to a great extent. Practically all governmental activity can fall within the purview of the Standing Committee. In this respect,the Standing Committee takes precedence over the Soviet Presidium (now defunct).Position (Role) of the Standing CommitteeApparently the position of the Standing Committee seems very imposing and unique. It enjoys some of the functions of the Head of the Slate as well. It isapt to be more effective than the NPC which remains in sessions only once and that too for a brief period. Its accountability to the NPC also becomes meaninglesson account of its infrequent brief meetings. Its comparatively smaller size than that of NPC further adds to its strength. As an interpreter of the constitutionand the statutes its authority is final and unquestionable. Its supervisory functions stand comparison with constitutional committees or courts of othercountries. Its power of appointment is extensive and authority in the domain of foreign affairs impressive. Such an onerous authority and enormous powersseem second to none. However, in actual practice, the Standing Committee like any other organ of state authority pales into insignificance on account ofpredominant role of the communist party in China. The Chinese mince no words when they claim that in the process of gradual advance towards real communismthe role of the Party is apt to become progressively more significant. It naturally gives a set back to the position and role of the organs of the statepower, the standing committee being no exception. In China besides the party the State Council is more influential than the Standing Committee. In theUSSR (which has ceased to exist), Presidium of the Supreme Soviet which was somewhat analogous to the Standing Committee of China, functioned more effectivelythan the Standing Committee. No organ of government could eclipse its position. The Communist Party predominated and relegated the Presidium to the background.In fact, in a communist polity, legal truth is a political untruth. However impressive a governmental organ may look to be, in actual practice its positionstands denigrated on account of preponderating role of the Party. Peter S. Teng rightly remarks, "...like the Presidium (USSR) the standing committee servesas a small and manageable group for giving the necessary legal form and authority to state which are essentially decided upon in higher Councils of theParty."477 THE PRESIDENT OF CHINA"...the President... is the higest ceremonial functionary of the state. He is not an executive President." "The office of the Chairman of People's Republic of China originated with the inception of 1954 Constitution. Mao held this office for a couple of years.Concurrently he held the office of the Chairman of the Communist Party. Liu Shao chi succeeded Mao as Chairman of the Country. A rift surfaced betweenthe two leaders during the Cultural Revolution (1966-69). Liu was disgraced and ousted from office in 1969. The office was kept vacant till it was abolishedin 1975. The Standing Committee of the NPC served as the head of the State. Its Chairman exercised ceremonial functions of the head of state though militaryfunctions were entrusted to the Chairman of the Communist Party. The Constitution of 1982 reversed the position. The office of President was created. ThePresident is the highest ceremonial functionary of the state. He is not an Executive President in the sense American President is.Method of appointment and Tenure of President and Vice PresidentThe President is elected by the NPC. The Chinese citizens who attain the age of 45 and are eligible to vote can seek election for the office. He is electedfor the same term as the Congress. It means, he is elected for a period of five years. He can be elected once. No person can hold the office of the Presidentfor more than two consecutive terms. The Vice President is also elected by the NPC and for the same term. He is to assist the President in the exerciseof his functions and acts as President in case of a temporary vacancy in the office of the President. The President and the Vice President discharge theirduties till the new President and the Vice President are elected by the succeeding NPC. In case the office of President falls vacant due to his death,resignation or48removal the Vice President succeeds. In case of a vacancy in the office of Vice President the NPC elects a new Vice President. In case of vacancies in boththe offices the NPC elects both the President and the Vice President. Though the Constitution is rather ambiguous as to whether the President and the VicePresident will hold offices during unexpired term or full term of five years, yet it can be presumed that their term will last till the NPC elects newPresident and Vice President.Functions of the PresidentThe Presidents' office is ornamental. He performs only ceremonial functions. Following are his functions: (i) He suggests a person to the NPC for the officeof the Prime Minister. After the NPC accords its approval, the Premier is formally appointed by the President (ii) The Vice Premier, State Councillors, Ministers-incharge of ministries and commissions, the Auditor General and the Secretary General of the State Councilare appointed by the President in pursuance of the decisions of the NPC or its Standing Committee, (iii) All persons so appointed by the President are removable by him on the recommendation of the NPC or its Standing Committee, (iv) In pursuance of the decisions of the Standing Committee the President confers slate medals and titles of honour, (v) He issues orders of special pardons, (vi) He proclaims martial law and state of war. (vii) He issues orders of mobilisation.The orders in above three cases (v, vi, vii) are issued by the President in accordance with the decisions taken by the NPC or the Standing Committee. Hecannot take decision of his own. (viii) He receives ambassadors and foreign diplomatic representatives on behalf of the People's Republic of China, (ix) He appoints and recalls Chinese ambassadors and other diplomatic representatives in foreign countries. This function is also exercised on the recommendationof the Standing Committee of the NPC. (x) He ratifies the treaties concluded by the Government with foreign countries. He is authorised to abrogate treaties and other important agreements withforeign countries. A critical analysis of the functions of the President reveals that he is only a glamorous head of the State. He does not take any decision of his own. Hisinitiative lies in recommending the names of a person to be49chosen as the Premier to the NPC. In all other cases he implements the decisions of the NPC and its Standing Committee. However the importance of the officeis magnified if the President happens to be an important member of the Party as well. Li Xiannian the first President after 1982 Constitution elected bythe Sixth National People's Congress in June 1983 happened to be a prominent leader of the Party. He was once a close associate of Mao Zedong and laterpost Hua Guo - feng period Vice Chairman Deng Xiaoping. The Seventh NPC in 1988 elected General Yang Shengkun as President. He too happened to be a closeand trusted colleague of Deng Xiaoping. Though the President is not equipped with onerous authority or numerous powers yet on account of his proximityto the party leadership, and also his own standing in the Party, he can play significant role. He can render advice to the Premier and the State Councilin administrative matters. It seems rather paradoxical that unlike India, decisions of the State Council (Cabinet) are neither implemented nor announcedin the name of the President of People's Republic of China. Presently, Jiang Zemin is the President of China who was re-elected for a second term on Marchl6,1998 with 2882 votes. 26 voted against him and 29 were abstentations. Hu Juntao was elected as - Vice President.Reference1. Hindustan Times, dated March 17, 1998. p. 14.508 THE STATE COUNCIL"The State Council is the executive body of the highest organ of state power."The State Council has been described as 'the executive body of the highest organ of state power.' It is indeed the highest organ of state administration,a sort of cabinet of the central government responsible to the National People's position: According to Article 86 the State Council is composed of the Premier, the Vice Premier, the State councillors, the ministers, incharge of commissions,the Auditor General and the Secretary General. The number of Vice Premiers and the that of the other members of the state council is not fixed either bythe Constitution or the law. Their number is determined by the NPC when the State Council is constituted. The Premier is considered to be over all responsiblefor the State Council as he is the head of the Council. The Premier is appointed by the President with the approval of NPC. Other, members of the StateCouncil are chosen by the NPC on Premiers' recommendations.Tenure: The tenure of the State Council is the same as that of the NPC. In other words, the State Council is constituted for a period of 5 years. Accordingto the Constitution, the Premier, the Vice Premiers and the State Councillors are not allowed to serve more than two consecutive terms. Thus the Premierof China cannot hold office consecutively for more than 10 years. There was no such bar previously. Chou En-lie for instance remained Premier from 1954to 1976. Hua Guo-feng who succeeded Chou remained in office till 1980 as he fell from grace. Li Peng was chosen by the Seventh National People's Congressas the Premier in 1988. He was a dynamic premier and enjoyed a prominent place in the Party itself. He stepped down in March511998 and was replaced by Zhie Rongji the Vice President at the vineth NDC in March 16, 1998.Removal: All members of the State Council can be removed by the President on the basis of decision taken by the NPC. If NPC is not in session the decisionon the choice or removal of members other than Premier is taken by the standing committee on premiers' recommendations.Functions of the State CouncilThe State Council may be described as the Central government of China. Hence the State Council is entrusted all those functions which normally a Councilof Ministers performs. Following are its functions. (i) It formulates policies and looks after their implementation1. (ii) It runs the administration of the country. (iii)It adopts administrative measures and frames administrative rules and regulations.(iv) It takes policy decisions according to the Constitution and issues orders to implement them. (v) It frames various proposals for legislation and submits them to the NPC and its Standing Committee.(vi) It lays down the responsibilities of various ministries and commissions and supervises their activities.(vii) It directs all administrative work that does not fall within the purview of individual departments. (viii) It determines the responsibilities of the administration of provinces autonomous regions and municipalities directly under the Central Governmentand supervises their working.(ix) It draws up the rational plan for socio-economic development and the State budget. These documents are to be submitted to the NPC or the Standing Committeefor approval. After due approval, they are to be administered by the State Council.(x) It is responsible for administering the affairs of education, science, culture, public health and family planning.(xi) It looks after public security and judicial administration.(xii) It conducts foreign affairs, formulates foreign policy, conducts treaties with foreign countries which are ratified by the President after clearancefrom the Standing Committee.(xiii) It ensures proper defence of the Country.(xiv) It safeguards equal rights of minority nationalities and the rights of autonomy of national autonomous areas.(xv) It protects the legitimate rights of the Chinese living abroad.52(xvi) It decides on the enforcement of martial law in parts of provinces, autonomous regions and the municipalities directly under the Central Government.(xvii) It decides on the size of administrative services of the country. It recruits, trains and removes officers of the civil services. It evaluates theirwork from time to time and confers awards or inflicts punishments on them.An analytical appraisal of the powers of the State Council reveals that apparently the State Council under the Chairmanship of the Premier, is the highestexecutive organ of the State. As already said, the President is only an ornamental head. The NPC - the so called highest organ of the state, meets oncea year and that too for a short duration. Hence its control over the State Council or that of the President is of mean significance. The judiciary doesnot have the power of judicial review. In other words, the State Council enjoys immunity from the judicial control as well. All this does not make it omnipotent.Like all other organs the influence of the Communist Party over the State Council also is all pervasive. The social, economic and political life of thecountry is in fact regulated by the dictates of the Communist Party. Thus the State Council at the most may be considered as the most effective organ ofthe state functioning under the tutelage of the Party. It cannot be construed as the Cabinet in a parliamentary democracy.PremierBefore we close the discussions on the State Council, a brief portrayal of the head of the State Council termed as the Premier is essential. The Premieris the head of the Government as he heads the State Council.Appointment: His name is proposed by the President to the NPC. The name is then considered and duly approved by the NPC. Thereafter finally he is appointedas the Premier by the President. In actual practice however the party leadership decides as to who is to be designated as the Premier. His removal is alsodecided by the NPC and implemented by the President.Tenure: His term is the same as that of the NPC. In other words he is appointed initially for 5 years. The present constitution of China provides that thePremier and other members of the State Council shall not serve more than two consecutive terms. It reflects that the Premier cannot hold office consecutivelyfor more than ten years. This was not the case according to earlier constitutions.Functions: He does not enjoy pivotal position like that of British or Indian Prime Ministers. He is neither the creator nor the destroyer of the53State Council. Hence we cannot call him moon among the lessers stars or the sun around whom the ministers revolve like planets. Following are his functions:(i)He is the head of the State Council which means he is the head of the Government. (ii) In the above capacity he directs the work of the State Council assisted by the Vice Premiers and other State Councillors. (iii) He is the chief coordinator. As such, he coordinates the working of all the ministries and commissions. (iv) Though he is not the creator or leader of the Cabinet (State Council) he decides the names of the colleagues who are chosen by the NPC or its StandingCommittee and then formally appointed by the President. (v) As the head of the State Council, he is required to participate in the performance of all those functions which are entrusted to the State Council.Position: Though the functions of the Premier are not as important as that of his prototype in UK or India, yet much depends on the personality of the incumbentand the place he holds in the party hierarchy. In the past the office has been held by one of the most powerful persons in Chinese history - Chou En-Liewho was second to Mao Zedong. His successor Hua Guo-feng who combined in himself the office of the Premier as well as the Chairman of the Communist Partywas more assertive and much more powerful in actual practice. However he could not retain the positions beyond June 1981. Zhao Ziyang, the next Premier- a close aide of Deng Xiaoping held an important place in the Party. In 1987 his position was further strengthened as he was made the General Secretaryof the Party as well. The Seventh National People's Congress elected Li Peng as the Premier in 1988. He had close relationship with both the top leadersZhao Ziyang and Deng Xiaoping. As such he too was apt to be an effective premier. During his tenure of Premiership, he has exibited dynamism of the highestorder by taking bold initiatives in both domestic and foreign policies. It is thus evident that the Premiership of China stands no comparison with thePrime Ministers of U.K. and India as he is neither the leader nor the boss over the Cabinet. In China unlike India there is no question of Prime Ministerialgovernment. Premiers' importance in the government varied from person to person. If the incumbent of the office happened to be an important party leaderas well he had a say in the governmental affairs and his 'position got strengthened'. After54completing two succesive 5 year terms dipeng stepped down as Premier in March, 1998.Reorganisation of Ministers and Bureaucratic Revolution:In the biggest reorganisation of Government since 1949, 15 ministries and commissions are being disbanded and four super ministries established. Thus thetotal number of ministries falls from 40 to 29. The total number of civil servants in these organisations under the State Council including in their provincialbranches will be halved. The reduction process will be completed by the end of this year (1998). However it will take 3 years to channel cadres into retrainingschemes and new roles. The unwanted cadres would retain their salaries during the 3 year channelling period and after training they will be required toplay a full role in sectors like banking, taxation and commerce. Luo Gau, a member of the State Council remarked in NPC, "It is a revolution... reformscannot proceed without resistance and risks. However there is no way out if we do not reform".Reference1. Poole Tereses (Peking) 'Cadres fall victim to bureaucratic revolution' quoted in The Hindustan Times dated March 13, 1998.559 THE JUDICIAL SYSTEM"The country must take the constitution basic system and basic tasks of the state in legal form, ...the country must take the constitution as the basicnorm of conduct."—(Preamble)Judiciary plays entirely a different role in the socialist countries. It protects socialist legality and strengthens the socialist system as an organ ofthe Government. It is not an independent branch of the government, functioning as the dispenser of justice and guardian of the rights of the people orsaviour of the constitution as is the case in the western democratic countries or India. In China, it is presumed that there can be no conflicts betweenthe individual and the State. The individual is expected to sacrifice his interest for the higher interest of the society. The State represents the peopleand it alone knows what is in the best interest. The Communist Party is the vanguard of the people. Hence whatever the Party desires, the State Commands.Judiciary is only a part of the State power. It therefore cannot question the decisions of the party and actions of the state. The hierarchy of Courtsstands for the implementation of the socialist legality, furthering the cause of socialism by exterminating counter revolutionaries, the foes of socialismand educating the people in the spirit of devotion to the fatherland and endearing to them the cause of socialism.Judicial StructureThe judicial structure of China is simple and is pyramidical. The local People's Courts constitute the base and Supreme People's Court is at the apex. Themiddle level courts function in the countries and autonomous Chou. A Higher People's Court exists at the head of the Court system in every province, autonomousregion and municipality directly under the Central authority. At the apex of the Chinese Judicial system is the Supreme People's Court.56The organisation of the Peoples' Court is determined by law. Their work is supervised by the Supreme People's Court. The higher People's Courts in the provincesalso work under the supervision of the Supreme People's Court. The provincial People's Courts supervise the working of the Courts below them. Each of thePeople's Court consists of a President and a number of judges who are elected by the corresponding congress of the region.Supreme People's CourtThe Supreme People's Court is at the apex of hierarchical judicial system of China.1Composition and Tenure: It consists of President, some Vice Presidents and judges. The number of judges is fixed by law. The President of the Court is electedby the NPC and is removable by the latter. The Vice President and the judges are elected by the Standing Committee, on the recommendation of the Presidentof the Court and are removable by the same Committee. The President and other members of the Court are elected for a period of five years. They are reeligibleonly once. The Supreme People's Court owes responsibility to the NPC or the Standing Committee when the latter is not in session.2 Powers: The Powers ofthe Court are not defined in the Constitution. Following are its powers. (i)It supervises the work of Court below it. Article 127 states "The Supreme People's Court is the highest judicial organ. The Supreme People's Court supervisesthe administration of justice by local people's courts at different levels..." (ii) It performs such other functions as the NPC entrusts it. (iii) It possesses original jurisdiction in cases of national importance. (iv) It possesses appellate jurisdiction as well. In this capacity, it hears appeals against decisions of the Higher People's Courts in the provinces andautonomous regions. (v) Its main function is to establish socialist legality under the leadership of the communist party. An appraisalThe Chinese Constitution boasts of independence of judiciary. An analytical appraisal of the appointment, position and powers of the Supreme People's Courtreveals that its claim of being an independent Court is a mere exaggeration. The judges who are elected and are removable by the legislature, whose tenureis for a limited period and who are not constituting a separate branch of the government but only a department, can hardly claim independence of character.Besides, they57dance to the tune of the Party leaders who are the custodians of the socialist order. Their job is simply to consolidate socialist order and safeguard socialistlegality as part of the apparatus of the democratic dictatorship. Unlike USA and India it is not equipped with power of judicial review which adds to thesignificance of the judiciary. It does not have advisory jurisdiction as is the case with the Indian Supreme Court. China has opted for a unitary structure.Hence the Chinese Supreme People's Court has not to play like American Supreme Court the cementing factor for the consolidation of Federal structure.The Peoples' ProtectoratesLike the erstwhile Soviet Union the Peoples Republic of China maintains the system of People's procuratorates. The local people's procuratorates exist atdifferent levels all over the country. Besides there are military protectorates and Special People's procuratorates. At the apex of Procuratorates is theSupreme Peoples Procuratorate with the Procurator General at its head.Supreme People's Procuratorates' appointment and removalThe Procuratorate General of the Supreme People's Procuratorates is elected by the NPC. His term coincides with that of the NPC, i.e., he holds office fora period of 5 years. He is eligible for re-election but he cannot serve for more than two consecutive terms. Other members of the Supreme People's Procuratorateare elected by the Standing Committee. The Supreme People's Procuratorate is responsible to the NPC and its Standing Committee.Local People's ProcuratoratesThe local People's Procuratorates are elected by the local organs of the state authority and are responsible to the organs of state authority that createthem.Democratic Centralism in Local Procuratorate systemThey function according to democratic centralism principle —they function under the guidance of the procuratorates at the higher level. They are answerableto the procuratorate immediately higher to them. The Supreme People's Procuratorate directs the work of the local procuratorates. They in turn direct thework of procuratorates at the lower level.Independence of Procuratorate systemPeople's procuratorates at all levels exercise procuratorial power independently according to the law. The administrative organs public58organisations or individuals do not interfere in their work. It ensures independent and effective functioning of the Precuratorial system in China.Functions of ProcuratorsFollowing are some of their main functions: (i) To present the people guilty of violation of the socialist legality before the Courts and prosecute them.(ii) To advise the government on the legal matters. The Supreme People's Procuratorate for instance does not merely advise the government on legal matters,it acts as the chief public prosecutor and government pleader,(iii) To take action not only against citizens but also against central.and provincial governments for any action, contrary to law. (iv) To exercise procuratorial authority over all departments of the State Council, all local organs of the state, persons working in the state organs andthe citizens, to ensure proper observance of law. If a procurator discovers that a decision or order of an organ of the state corresponding to his levelis wrong, he can plead that the situation may be corrected. If his request is not acceded to, he could report to the higher procuratorate.(v) To prosecute the officials who in their opinion are guilty. They cannot however annul the decisions of the State organs. (vi) To act as guardians of socialist legality.(vii) To investigate cases of violation of the law and particularly those of the counter revolutionary crimes. No person in China can be arrested withoutthe prior sanction of People's Procuratorate or without the decisions of a Peoples' Court.(viii) To ensure that the criminals who seek to sabotage the people's dictatorship (or of the party) are suppressed. (ix) To coordinate their work with the class struggle and seek peoples' unqualified support and obedience to the communist rule in the country.A critical appraisal of the Procuratorates' functions reveals that it is an instrument of the Party for ensuring complete submission of the people beforethe wishes of the government and the Party. Keeping in view its utility, the Procuratorate system which was abolished by 1975 constitution was reintroducedin 1978 constitution. The system has been retained by 1982 Constitution as well and the Procurators headed by Procurator General play the vital role asinstruments of judicial system.59Salient Features of Judicial System in ChinaFollowing are the salient features of judiciary in China.(a) Single integrated judicial system: There is a single unified judicial system in China. This is unlike USA where on account of Federal system doubleset of judiciary has been provided. In India also, despite there being federal system single integrated judiciary has been provided.(b) Elected Judiciary: An impartial and independent judiciary is to be appointed by the Chief Executive on the basis of merit. In China on the other handjudiciary is elected by People's Congresses at different levels. This seriously impairs independent character of judiciary.(c) No fixed qualifications or tenure: The Constitution does not lay down any set criterion for the appointment of judges. In fact only these comrades areelected as judges who are tried communists and have full faith in Marxism and Maoism. They are elected for a period of five years but an elected functionarycan be removed even earlier if he fails to come up to the expectations of the party bosses.(d) Open trials: Open trials of cases is allowed in the constitution, except in certain specified cases. Article 125 states, "All cases handled by the People'sCourts except for these involving special circumstances as specified by law shall be heard in public." The accused has also been allowed right of defence.In actual practice, this privilege is negated to the counter-revolutionaries - the foes of socialism.(e) No Judicial Review: The Supreme People's Court is not vested with the power of Judicial Review. The Constitution framed by the top leadership of theParty is to be safeguarded by the Party itself. Hence laws passed by the NPC or its Standing Committee cannot be declared null and void by the SupremePeoples' Court or any other Court at lower level on the plea that they contravene the constitution. No Bill passed by the legislature can be contrary tothe constitution unless it is so desired by the Party bosses.Likewise no act of the executive can be repugnant to the Constitution. Hence the judiciary is not empowered to sit in judgement over the Acts of the Congressor the orders of the Executive and declare them unconstitutional. This is unlike that of USA and India where the Supreme Courts are equipped with JudicialReview which has assumed the form of judicial veto.Judiciary insignificant and only a DepartmentJudiciary in China is not an independent branch of the government in the sense it is the case in USA. It is just like a government department60meant to implement the policies of the Party and protect the socialist legality. It is neither the guardian of rights of the people nor the saviours ofthe Constitution. It is the Communist Party which is the vanguard of the People. As such whatever the party desires, the state commands. The judiciaryis part of the state power to see to the implementation of the policies of the party and crush the enemies of socialism as desired by the Party. It isexpected to inculcate in the people the spirit of devotion to the fatherland and to the cause of socialism. It is to see that fundamental duties are abidedby the people and the defaulters are taken to the task. Evidently it acts only as an instrument of government to carry out the dictates of the Party. Thisin fact defeats the very purpose of Judiciary.References1. Article 127.2. Article 128.6110 RIGHTS AND DUTIES (ARTICLES 33 TO 56)"The citizens are required to exercise their rights and freedoms in such away that there is no infringement upon the interests of the state of society,and of the collectivists or upon the lawful freedoms and rights of their citizens."—Article 51Chapter 2 of the New Constitution gives a detailed description of rights and duties which apparently seem to be very impressive and make other democraciesblush with shame. However there is a big divergence between theory and practice.Rights: The fundamental rights can be categorised as economic, social and cultural, political and the civil rights and personal liberties.Article 33 of the New Constitution lays down that all citizens are equal before law and enjoys all the fundamental rights.Economic RightsMost of the economic rights in China are similar to the rights once enjoyed by erstwhile Soviet citizens.Right to work Article 42 has been guaranteed by Article 42 of the Constitution. The state tries to find work for every ablebodied person. No one is to remainwithout work. Every citizen in China is assured of five necessities - food, clothing, shelter, primary education and decent burial. The State not onlycreates conditions for employment, it improves working condition and enhances remuneration for work and social benefits. The state imparts vocational trainingto people before they are employed. In the initial stages the state employed millions of people in such unproductive activities as digging of tunnels andfeather bidding. All this reflects genuine effort on the part of the state to provide62work to their teeming millions. The livelihood of the retired persons is ensured by the State and society. Retirement is regulated by law.Right to Rest (Article 43)In China the State provides facilities for 'rest and recuperation of working people.' Hours of work are fixed by the state. The workers can avail enoughvacation. The Chinese are of the opinion that in order to remain healthy and fit it is imperative that every person must relax and enjoy proper rest andleisure.Right to material security (Article 45)The Chinese enjoy material security in the old age and in case of physical in capacity.Article 45 lays down "the people have the right to material assistance from the state and society when they are old, ill or disabled." Social insurance,social relief and medical and health services required for the enjoyment of this right are ensured by the state. The blind, deaf and handicapped are providedlivelihood and imparted education. Likewise disabled members of the armed forces are looked after by the state. Preferential treatment is accorded to thefamilies of ministry personnel and pension is provided to the families of the martyrs. It is evident that every care is taken in China for the old, thehandicapped, the martyrs and the ex-soldiers.Social and Cultural RightsThe Constitution has guaranteed a number of social and cultural rights as follows:(i) Right to education: (Article 46) Citizens have the right as well as the duty to receive education. This applies only to the early school education.Higher Education is available only to very few. Education has been made compulsory at the earlier levels. No one is denied education and none can refuseto send his children to the school. The state promotes all round moral, intellectual and physical development of children and the young.(ii) Freedom to engage in scientific research and cultural pursuits: (Article 47) The State promotes scientific research and other literary activities.People have been authorised to engage in scientific research literary and artistic creation and other cultural pursuits. The State encourages all creativeendeavours provided they are conducive to the interests of the people. The interests of the people are looked after by the Communist Party and the Governmentof China. Hence it is obvious that people themselves are not the architects of their own interests.63Political RightsChina is governed by the ideology of Marxism Leninism and Mao Zedong's thought. Hence political activities are permitted to the extent they do not contravenethese ideologies. Political rights allowed to the people are limited.(i) Right to vote and contest election: (Article 34) This right is allowed to all citizens who are atleast of 18 years of age without discrimination onthe basis of nationality, race, sex, occupation, family background, religious belief or educational attainments. Likewise any individual 21 years of ageor more can contest elections without any discrimination.People can be deprived of these rights only according to the law. In one party system right to vote is hardly of much significance. Moreover political favouritesalone get party ticket.(ii) Right to criticise and make suggestions: (Art 41) According to Article 41 the citizens have been provided with the 'right to criticise and make suggestionsto any state organ or functionary.' In other words, citizens can level charges or make complaints against any state organ or functionary for violationof law or dereliction of duty. The State Government is required to deal with complaints in responsible manner. According to the constitution no one "maysuppress such complaints charges and exposure or retaliate against the citizens" who lodged the complaint. This indicates that China has adopted more liberalattitude , on political and administrative issues than during the Maos era.Civil Rights and Personal Liberties (Article 35)The citizens have been assured a number of civil rights and personal liberties. Freedoms of speech, the Press, assembly, association, procession, and demonstrationfall in this category. These freedoms are assured to the citizens in all democratic countries but in China these freedoms can be enjoyed within a limitedsphere. Moreover the actual provision or negation of these rights is determinable by the Communist Party.Thousands of students' demonstrations at Tiananmen square of Beijing and demand for democracy and 1013 journalists demand for freedom of press and submissionof petition to the government and Party, eventually leading to military crackdown on June 3-4, 1989 on unarmed students, exposes the hollowness of thesocalled civic freedoms. The massacre of thousands of youngmen by the ferocious military at the instance of current leadership on the plea of counter revolutionarycrime reflects that only a lip homage has been paid to the civil rights in China.It has been very recently opined by a group of senior journalists led by Xiao Dong-Sheng member,, All China Journalists Association34(ACJA) that there was nothing wrong with the policies followed by the communist regime. According to them the economic reforms launched by the governmenthad been instrumental in giving more truth to the concept of Press freedom.1 There is no denying the fact that a plethora of newspapers bereft of politicalsupport have emerged out. That in fact is a "testament to a new revolution in the print media."2 Another journalist, Li Hua Bing, member of ACJA opined,'Public's exasperation with the decrepitude of the venal political class was absent and the government media bonhomie was a welcome development. Howeverthe papers were critical of the policies of the government that created social disorder. "Most other journalists also held the opinion that the myth ofCommunist China strangulating the Media had been exploded. Even the government controlled or company owned newspapers were no longer setting a precedentof back-seat driving."3 It was claimed that even in government managed papers some pages were autonomous of central control. Lu Tianyi representing LiberationArmy Daily upheld the enlogising of Liberation Army by the Daily and keeping the public posted with the military developments in China. All these journalistscondemned the role of the Western Press for exaggeratingly playing up the Tiananmen Square incidents of 1989. They stressed "the increase in the memberof news agencies over the years and demonstrated the ease with which they could file their reports about the happenings in China. In fact all the allegationsabout their harassment were candyfloss arguments, seemingly substantial but doomed to disintegrate on contact with reality."4 These opinions of Chinesejournalists clearly reflect that they have attuned themselves to the hard fact that antagonistic attitude towards establishment would hardly crown themwith glory.Freedom of Religion (Article 36)Freedom of religion is guaranteed to the Chinese citizens. This right is more real in China than in some socialist countries. Article 36 states "No stateorgan... or individual may compel citizens or believe in or not to believe in any religion...." No person is discriminated against on the ground of religiousbelief. The State safeguards normal religious activities. Though constitution permits freedom of religion, it does not talk of the right to propagate foror against the religion. In the defunct Soviet Union people had the right to propagate against religion. Religion was simply tolerated in erstwhile SovietUnion. China has shown more liberality in this respect.Personal freedom (Articles 37 to 40)Personal freedom is allowed in China. The freedom of person is inviolable. No person can be arrested except with the approval of a65competent authority Unlawful detention or deprivation is prohibited. Searches can be carried out only with the permission of the competent organ or functionaryof the state. According to the Constitution, personal dignity of the citizens is inviolable. Insult, libel and framing up directed against citizens byany means is prohibited.Inviolability of the house is also assured to the citizens. The unlawful searches are legally prohibited and intrusions in the houses of citizens is disallowedaccording to law. The law protects freedom and privacy of correspondence of the citizens. No person or organization can violate the privacy of correspondenceunder any circumstances. However, the above right (privacy of correspondence) is also hedged with restrictions. In the interest of security of the stateor in case of investigation into criminal offences, certain organs of state such' as the procurators are allowed to censure correspondence according tothe procedure prescribed by law.Women Equality (Article 48)Women in China enjoy parity with men in all fields - political economic, cultural and the family life. The principle of equal pay for equal work for bothmen and women is followed in China. The State protects the marriage, the family and the interests of the mother and the children. Marriage can be solemnizedby the young couple without any interference from the parents or any one else. The constitution prohibits the violation of the freedom of marriage. Mal-treatmentof women, children and the aged is also prohibited by law. The Chinese are however forcing family planning in order to restrain the ever growing population.Miscellaneous RightsOverseas Chinese Rights (Article 50)According to Article 50, the fundamental rights of Chinese and their relations abroad will be protected by the state. Such a provision is generally notfound in any western democratic country.Right of Asylum to the Foreigners (Article 32)Article 32 of the Constitution provides that China will give asylum to all such foreign nationals who on account of political reasons request for such asylum.In actual practice, it means that the nationals of any country having leftist leanings and struggling in their own country for the spread of this ideology,can seek shelter in China. Beijing (Capital of China) is the haven of all such revolutionary comrades who are haunted in their own lands for spreadingChinese ideology or toeing the line of China at the cost of their own country.66Right to PropertyMention may be made about right to property which is not a fundamental right but Article 13 makes a mention about personal property which can be owned inChina. Article 13 lays down. "The State protects the right of citizens to own lawfully earned income, savings, houses and other lawful property." It isevident that Chinese leaders also have realized the importance of instinct of possession. Hence small scale property in China has been allowed to the citizen.Fundamental DutiesRights and Duties are co-relative. They are in fact two sides of the same coin. A number of fundamental duties have been incorporated in the constitution.They are as follows:Work: (i) According to Article 42 right to work is a duty also. 'He who does not work neither shall he eat' is the maxim with the communists, Chinese beingno exception.(ii) Education is not only a right but it is also a duty. Every citizen is supposed to seek education.According to Article 49.(iii) (a) It is the duty of husband and wife to keep family planned. (b) It is the duty of parents to rear non-adult children, (c) To help the parents isthe duty of adults who have come of age.(iv) According to Article 51 it is the duty of the citizens to exercise their rights in a manner that the interests of the State and Society do not sufferand the rights and liberties of other citizens are not abrogated.(v) It is the duty of the citizens to safeguard the unity of the country and the unity of all its nationalities (Article 52).(vi) To abide by the Constitution and the laws is another important duty of the Chinese people. They are required to keep secrets, protect public propertyand observe labour discipline. They have to maintain public order and respect social ethics.(vii) It is the sacred obligation of every citizen to defend the motherland and resist aggression.(viii) With the above aim in view, it is the honourable duty of people to perform military service and join the militia in accordance with the law.It is evident from duties in para (vii) and (viii) mat to defend the country and for that purpose to serve in the armed forces is one of the fundamentalduties in China.(ix) It is fundamental duly of all the citizens to pay taxes in accordance with the law.67The list of duties enumerated above reflects that Chinese have not left any thing to chance or whims of the people. There are certain imperatives whichthe Chinese citizens are expected to keep in mind for all times to come. Such type of duties had been enumerated in former Soviet Constitution as well.The Indian Constitution has also incorporated duties through an amendment in the recent past. This amounts to pinpointing obligations, a citizen owes tothe state.An appraisalAn appraisal of the rights leads us to conclusion that socio-economic rights are enjoyed by the citizens both in theory and practice. However personal freedomsexist only in name and not actual practice. In the name of superior interests of state and society rights are negated. Freedom of cultural pursuits alsois a myth. Mass migration of artists and literary giants to Hong Kong, cancellation of cultural exchanges programmes with the United States in 1983 crushingof students movement launched for greater democracy in 1989 with iron hand, gagging of press and protestation by the journalists of thirty newspapers ofBeijing for freedom of press express the hollowness of Chinese leaders' claims of civic and political freedoms. Earlier the socalled Cultural Revolution1whose declared objective was to bring about revolutionary changes in thought and culture eventually proved to be a factional fight between Mao and LinShao Chi—the then Chairman of the Republic. During 1989 in a brief factional struggle, democracy became the main casualty as thousands of youth were butchered.Besides the negation of civic freedoms, it may be said that the provision of right to vote and right to contest election is a big farce. In a communistcountry, the citizens are required to vote for the Communist Party and those eligible candidates are to be elected who toe the line of the Party and danceto its tune. Thus such elected representatives can hardly represent the people. Likewise right to criticise the government is only a figment of imagination.The government is run by the chosen leaders of the Party. Hence any courageous citizen, criticising the Government is apt to be dubbed as counter revolutionaryand meet the same fate as meted out to thousands of students in the recent past.Democratic CentralismThe Chinese State is built on the principles of democratic centralism as opposed to the bureaucratic centralism that prevails in western democracies. DemocraticCentralism is an important principle of the working of Chinese constitutional system. In the words of Liu Shao Chi "Our political system has a high degreeof centralism but is based on a68high degree of democracy." He further explains that it is not "despotic centralism of handful of big feudal lords and capitalists", but it is the "democraticcentralism of the people led by the working class". Mao Tse-tung observes, "It is at once democratic and centralised, that is, centralised on the basisof democracy and democratic under centralized guidance." In the words of Professor Chou Keng-Sheng: "This is a political system in which state organs derivetheir power from the people or the people's representatives but with the leadership centralised at highest level." Democratic Centralism means that "Localunits can do exactly as they like so long as the agents of the governments which are above them do not object." Under this principle the local units ofgovernment exercise virtually complete independence in managing their own affairs and have ample opportunities of participating in the activities of higherunits of government In this sense the government is democratic. But on the other side higher governmental bodies exercise the power of formulating basicpolicy and of supervising, checking and even vetoing the acts of the units below them. In this sense, the government is centralised. Democratic Centralism"presupposes centralism in basic questions, in general guidance, in the maximum unification of economic activity according to one state-wide plan." Inshort, democratic centralism combines uniformity and centralism in fundamentals with multi-formity and local self-government in details.Democratic centralism differs from bureaucratic centralism inasmuch as in the latter real control lies in the hands of officials who are not responsibleto the people. Under bureaucratic centralism democracy may exist in form but the essence of power rests with a centralised officialdom insulated againstpopular control. Under democratic centralism power is exercised at all levels by elected representatives who are accountable to the people. The principleof democratic centralism signifies that "each organ of authority, being formed by a procedure, at once democratic and logical, is responsible to its electorsand is bound to execute their will, while at the same time it is also responsible to superior organs of authority and bound to fulfil all their orders(provided they are given within the limits of their respective jurisdiction)".Its WorkingCentralisation of State PowerIn China the power is completely centralised in the National People's Congress which guides and supervises provincial people's congress.69The provincial people's congresses guide and supervise the county congresses which in their turn guide and supervise the town people's congresses. Thusevery congress is subject to the supervisory and overruling power of the congress above it. It means a downward stream of laws, decrees and instructionsfrom the apex organs. The National People's Congress is the all-powerful authority in China. On the administrative side, the State Council is the all-powerfulorgan of administrative power which is supervised by National People's Congress. The State Council supervises the local councils and can remove them. Thelocal Councils are subject to guidance and supervision of local people's congresses at corresponding level of which they are the creations. Moreover, theyare subject to the guidance and supervision of local councils at the next higher level. Finally, they are subject to the co-ordinating guidance of theState Council itself. The decisions and orders of the local councils can be revised or annulled by local people's congresses at the next higher level.In this way, the whole structure of state power and administrative power is highly centralised. The administrative organs cannot act independently of thepeople's congresses. As according to 1982 Constitution as well, the ultimate source of guidance is the National People's Congress of China and its StandingCommittee, the element of centralisation remains paramount in the Chinese political system. The Standing Committee supervises provinces, autonomous provinces,municipalities under central control. It can annul their decisions or can suspend them. Paul. H. Clyde rightly opines, "In a word the emphasis was on centralism,not on democracy. Emerging too from democratic centralism was the principle of unitary government ensuring to the Central Government complete control ofthe policy at all local levels." Even in judicial sphere centralisation is evident. The Supreme People's Procuratorate directs the work of local procuratorates.They in turn direct the work of procuratorates at the lower level through People's procurators the Party ensures total submission of the people beforethe wishes of the Government and the Party.Democratisation of State PowerWhereas there is centralisation in political set-up of China, democracy also characterises it. The deputies to the local people's congresses at the townlevel are elected by citizens above eighteen years of age who can recall the deputies whenever they like. There is universal suffrage and every adult maleor female is entitled to vote without any discrimination on the basis of property, education or any other kind. The deputies to the70county people's congresses are elected by deputies of the local people's congresses who can recall them. Likewise, the deputies to the county people's congresseselect deputies to the provincial people's congresses and can also remove them from office. Finally, the deputies to the National People's Congress areelected by the, members of the provincial people's congresses and the former can be recalled by the latter. Thus it is clear that apparently the real powerlies with the Chinese people themselves. Their deputies are their spokesmen. The deputies to the National People's Congress have the right to address questionsto the State Council which is obliged to give an answer. According to the Chinese Constitution "all organs of State must rely on the masses of the people,constantly maintain close contact with them, heed their opinions and accept their supervision." The Constitution further lays down "all servants of thestate must be loyal to the people's democratic system, observe the Constitution and law and strive to serve the people." In this way deputies and civilservants have to be conscious of their obligations towards the people.Democratic Centralism in the Communist PartyDemocratic centralism is the organisational principle of the Party. The Democratic aspect is discernible from the election of all the leading party organsat all levels. This means the election of Party committees by the Party Congresses at each level in the hierarchy. At the highest level, National PartyCongress elects the Central Committee. The elected party committees are accountable to their respective party congresses. As such, they are required tosubmit reports regarding their work to their respective congresses at regular intervals. Moreover, they are required to listen to the opinions of the massesboth inside and outside the party and accept them so far as possible. Further, the individual party members have been allowed to differ from the partydecisions and directives, and reserve their opinions and report difference of opinion direct to the central committee bypassing other levels.Centralism in the party is evident from the fact that the individual is subordinate to the organisation, the minority is subordinate to the majority, thelower level is subordinate to the higher level and the entire Party is subordinate to the central committee and the General Secretary of the Party. Evenat present the so called collective leadership of the Party has been reduced to a mere domination of Jiang Zemin (General Secretary of the Party) thoughformerly Deng was the most powerful comrade in the Party.71In actual practice the central aspect of Party organisation outweighs the democratic. The Party committees are empowered to arrange their own re-election.Thus party forms "pyramid with orders being transmitted from the apex down to the lowest levels for execution and information concerning how policy isbeing implemented, sent back up the Party chain of command." The Party requires that Party members unquestionably obey directives from higher Party authorities.However they have not to obey blindly but with creativity and imagination. Further, through study sessions, criticism and self-criticism, organisationalflexibility is maintained to suit local conditions and strengthen the solidarity of party members.Democracy has been blended with centralisation in the political set-up of the People's Republic of China. The advantages of local autonomy have been combinedwith the advantages of central control. The critics are of the opinion that in democratic centralism, centralism has primary significance. In the opinionof Ogg and Zink, "It is difficult to believe that democratic centralism embodies as much of democracy as of centralism." The general view is that in theChinese political setup there is greater emphasis on centralism than on democracy. The Chinese are proud of their system. They claim that rapid economicprogress cannot be achieved without some centralism. A non-centralised politico-economic structure can hardly achieve the same rate of economic progressas a centralized system. Democracy must be blended with centralism; none is to be carried to its extreme, if we wish rapid economic growth. Democraticcentralism is an amalgam of democracy and centralism. It cannot be denied that during the last 39 years of its existence the People's Republic of Chinahas achieved sufficient economic progress, and has become first rate power of Asia. That shows the success of political system based on democratic centralism.The Chinese leaders give credit to democratic centralism for China's incredible achievements during the last four decades.References1. Hindustan Times, dated June 13, 1995, p.13.2. Ibid.3. Ibid.4. Ibid.7211 THE COMMUNIST PARTY OF CHINA"The Communist Party is the ultimate political authority and the source of all decision making on the mainland China today...."—Bernett"China is a country of 50,00,00,000 slaves ruled by a single God and nine million puritans," Chang Po-Chin. Chang Po-Chin, a leading leader of China DemocraticLeague and a minister of Communications in Peking in 1956-57, made these remarks 24 years ago. Today the number of slaves has increased to over 900 millions.However, their God who was described as infallible could not remain immortal. Collective leadership was substituted in place of one man rule, which lastedupto September 1976.The Party which emerged in 1921 had very horrible beginning. It had only 13 members in the initial stage. The growth of the Party was impeded due to lapseson the part of its early leaders. In 1935 it was virtually on the brink of extinction. Mao appeared on the Party's horizon at the time of its collapse.The war with Japan provided it an excellent opportunity to gain strength. By the end of World War, over one million Chinese had embraced its membership.Attempts were made to establish a coalition government of KMT Communist Party but they proved futile. There then ensued People's Liberation War which lastedfrom 1945-1949. It raised the strength of the Communist Party to over 4-1/2 millions. In 1961 its membership rose to over 17 millions. At the end of 10thCongress of the Party i.e., on August 24 to 28, 1973, the Party had 28 million members. Its present strength is 51 millions members.The membership of the Party is thrown open to persons of 18 years of age or more. Every member has to pass through a probationary period. The members arerequired to safeguard the solidarity of the73Party, consolidate its unity to implement the policy and decisions of the party, to serve the masses whole-heartedly to remain on the alert against theintrigues of the enemy, to guard the secrets of the Party or the State and to be truthful and honest to the Party.Till his death in September 1976 Mao Tse-tung dominated the Chinese political scene like a huge colossus. There may have been a few murmurs against hispolitical ideas but no loud protestations against his policies and serious challenges to his pre-eminent authority. He was the main exponent of Marxismand Leninism in this country, party's chief theoretician, its principal organiser and acceptable authoritarian interpreter of Marxian principles, suitingthe genius of his country. His interpretations have been lovingly described by the Chinese as the "thought of Mao." Maoism did not conform with the principlesand strategy of Moscovites. Hence both these socialist countries till the end or Soviet Union in December 1991 have been vying with each other as inheritorsof Marxian ideology. This had resulted in a split in the Communist camp.Democratic Centralism in the PartyDemocratic centralism is the hallmark of the Pany. Democratic centralism signifies centralism on the basis of democracy and democracy under centralisedguidance. Democratic elements in the Party are discernible from the following facts: (a) The leading bodies of the Party at all levels are elected. Forexample, the National Party Congress elects the Central Committee and the Local Party Congresses elect their respective Local Party Committees. (b) TheCentral Committee and the Local Party Committees are responsible to their respective Party Congresses to which they report on their work. (c) All leadingbodies of the Party are required to pay constant heed to the views of their local organisations and the rank and file of party members.Centralism which is predominant appears from the following factors: (a) The Lower Party organisations are supposed to submit periodical reports on theirwork to party organisations above them. They are required to seek instructions and questions which necessitate decisions by higher party organs. (b) TheLower Party organisations must obey the highest party organisations. (c) The decisions taken by the lower party organs may be revised or requested by thehigher party organs.In actual practice, democracy in the Party has proved to be insignificant as compared with centralism which predominates.74Democratic centralism in the Party has resulted in the complete centralisation of authority and policy making under a democratic ANISATION OF THE PARTYNational Party CongressThe National Party Congress is at the apex of the Party pyramid. It is elected for a period of five years by Local Party organs. It is supposed to be convenedonce a year by the Central Committee. In real practice, its meetings are infrequent. For instance the 9th Party Congress met in 1969 after 11 years. The10th and 11th Party Congresses, however, met in August 1973 and August 1977 respectively. The XlVth Congress held its meeting from October 12 to 19, 1992.Over 2000 delegates attended it. The functions of the National Council are:(i) To determine the Party's policy, (ii) To revise the Party's Constitution, (iii) To hear and examine the reports of the Central Committee and other Centralorgans, (iv) To elect the Central Committee.The 11 th Congress which met after the death of Mao Tse-tung from August 12 to 18, 1977. elected Hua Guo-Feng as the Chairman of the Party. Teng Hsio-ping,Yeh Chieu-ying and Wang Tung-hsing were elected as Vice-Chairmen.1 However the Chairman bowed out of office alter remaining in suspended animation forover 7 months. His successor was party Secretary-General Hu Zaobeng. Hua was denigrated to the post of Vice-Chairman of the Central Committee of the Party.Zhao Ziyang, the Prime Minister was given additional assignment of the Chairmanship of the party. Presently, Jiang Zemin is the general secretary of theparty. The Congress framed a New Constitution for the Party. It defined the objectives of the Party as such: (i) To lead the people(ii) To make China a powerful socialist country with modern agriculture, industry, national defence and science by the end of the current century.Central CommitteeThe SPC which meets infrequently elects a Central Committee. The Central Committee sets up a number of central organs. It represents the communist partyin its relations with other parties and mass organisations and people's organisations, instructs the People's Liberate n Army through its control of theGeneral Political Department, elects the Politbureau, the Secretariat, the Chairman, Vice-75Chairman and General Secretary of CCP (Chinese Communist Party). The 1969 Constitution does not specifically mention about its power of electing Secretariatand the General Secretariat. The New Constitution however empowers it to hear the views of the masses both inside and outside the Party.It consisted of 97 full and 73 alternate members in 1956. In 1958, its membership was raised to 97 full and 96 alternate members. It was recognised in August1977 at the XIth Party Congress. It was to consist of 20 regular members and 132 alternates. Evidently it is quite an unwieldy body. Hence it functionsthrough comparatively smaller bodies.The role of the Central Committee is in fact, to ratify the decisions of the Politbureau and its Standing Committee. It is more an organ concerned withthe implementation of policy rather than its formulation. It is in fact a permanent acting agent of the National Congress and directs the work of the Partyduring intervals between sessions.Under the Central Committee, a number of working departments have been established. They supervise a broad functional policy field viz, organisation, education,international liaison, propaganda, United Front etc.PolitbureauAccording to former Party Constitution, the Politbureau and its Standing Committee were elected by the Central Committee and exercise its functions andpowers during its interval. They are responsible for convening the biennial meetings of the Central Committee. The Politbureau and its Standing Committeewere responsible for directing the Secretariat. The New Constitution also suggests the same pattern but does not suggest the frequency with which CentralCommittee meetings are convened by the Politbureau and it omits all direct references to the Secretariat.It consisted of 13 members to begin with. Its membership was raised from 13 to 17 full members and two alternates in 1956. A new body known as StandingCommittee, a sort of inner Cabinet of Politbureau was also set up in the same year. It was to consist of the Chairman of the Central Committee (Mao), thefour Vice-Chairmen and the General Secretary. The membership of Politbureau was raised to 20 full and 6 alternates in 1958. Its membership was somewhatcut down in the next few years though it was once again restored in August 1966, due to fresh addition of some military figures. The XIV Party Congress76held in 1992 raised its membership from 17 (1987) to 20. The membership of its standing committee was raised from 5 to 7.The vicissitudes of Cultural Revolution resulted in shrinking of its membership as well as powers. However, the Politbureau regained some of its formerstature following the Ninth Congress of the Party. It is the most effective party organ. In actual practice, its powers are exercised by 7 men-standingcommittee which comprises the top leaders of the Party. It is rightly termed as the Standing Committee of the Party. An analysis of the functioning ofthe party reveals that the Central Committee works for the party congress. The Politbureau functions for the Central Committee and the Standing Committeeperforms the duties of the Politbureau. It is thus wheel within wheel. The ultimate power is exercised by Secretary General of the Party (formerly chairman).2Control CommissionIt consists of 17 regular members and 4 alternates. It maintains party discipline. It has its control committees at all levels of party organisations toensure party discipline.SecretariatAccording to 1956 Constitution, the Secretariat consisted of 10 full members and 7 alternates. However, most of its members were the victims of generalpurge of Cultural Revolution. After full resuscitation of the Party, the Secretarial is being given due importance. The Secretariat attends to the daily work of the Central Committee under the direction of Politbureau and the Standing Committee. It coordinates the workof the Politbureau and its Standing Committee by referring their policy decisions to the relevant functional departments and committees under the CentralCommittee. On account of its routine control over these organs, the Secretariat exercises considerable real influence on policy though it is itself nota policy making body. (Since the Secretariat became the focus of opposition to Mao it suffered an eclipse during the Cultural Revolution).Local Party OrganisationThe next level of party organisation consists of provinces, autonomous regions and the large municipalities which are directly under the Central Government.Party organisation at this level is a replica of the one at the summit of the party pyramid.The county or municipal party organisation constitute the next tier of the hierarchical structure. The 1969 Constitution does not go in77details concerning local party organisations as was done by its predecessor. The present Constitution only specified that local party Congress elect theirrespective Committees and that Congresses are to be convened once every three years although they may be convened before due date or postponed.At the base are the cells. They exist in farms, factories, schools, enterprises and army units. The number of members in each cell is generally 20. Eachmember of the Party is expected to belong to one of these cells. If the members increase, committee may be constituted.These cells carry out the decisions of higher party organs and execute propaganda and organisation work in their respective units. They pass on reactionof the people to the higher party organs. They raise the political and ideological level of the masses, recruit new party members and maintain the disciplineamong party members. Their most important task lies in guiding and supervising the administrative bodies and mass organisations in their respective units,in the fulfilment of the decisions of higher party organisations and higher state organs. The 1969 Constitution also assigns them a prime task of 'guidingand leading the Party members and the broad revolutionary masses in studying and applying Marxism-Leninism-Mao-Tse-tung thought in a living way.'Youth Organisations' Present ConstitutionSince Chinese leaders want the youth to be suffused with Mao's thought right from childhood, three organisations catering to different age group have beenprovided. They are Young Communist League, Young Pioneers and New Youth Organs.Young Communist League (YCL)The first Communist Youths Organisation - the Socialist Youth League - came into existence in 1920 even before the creation of the Party.It adopted current title in May 1957. It is organisationally independent body having a hierarchical structure from national to local levels. The YCL Committeesat each level are responsible to both the Party Committee on the same level and the YCL Committee on the next higher level.The YCL serves as a transmission belt of the Chinese Communist Party (CCP) for carrying the influence of the Party into the schools, student associationsand other areas of society. Being an organisational arm of the Party, it lends assistance to the Party in propaganda work and induces the youngmen to adoptcorrect attitude towards the Party.78Its membership is open to those aged between fifteen to twenty-five. Those are promoted to full membership of the CCP unit who occupy a leading positionin the organisation of YCL. In 1949, about half a million youth were its members whereas in 1959 the number rose to twenty-five million. Eight and a halfmillion new members were added to it in 1965. However, influx of members led to deterioration in political standards. On account of YCL's links with Mao'sopponents it suffered a heavy blow during Cultural Revolution. It ceased to function by summer 1966 due to undue importance accorded to the Red Guards.The 1969 Party Constitution accepted party leadership by the YCL and stood for reconsolidation of the Communist Youth League.Young PioneersThe Young Pioneers work under the leadership of the YCL and do not have separate organisation. They are open to the children varying in age between nineand fifteen. In 1962, their membership rose to 50 million children. They are organised particularly in schools. Thirty-five to forty per cent of primaryschool children are young pioneers.They stand for indoctrination of children with the correct party attitude. The YCL draw recruits from the Young Pioneers. The Cultural Revolution gave asevere setback to the Young Pioneers as well. These youth organisations serve as recruiting grounds and as instruments of control and indoctrination ofthe rising generation."3New Youth OrgansMention about new Children's Leagues and Juvenile Leagues was made by a plenum of the YCL Cultural Committee on May 1965. It was not made specifically clearas to whether they would be complementary or replacement organs for the YCL and the Young Pioneers. During the Cultural Revolution mention was made ofLeague, of Red Children and little Red Soldiers. Nothing much has been said or heard about these Youth Organs.Mass OrganisationsBesides CCP and the Youth organisations there are a few so-called mass organisations viz, the All China Federation of Trade Unions, the All China Federationof Co-operatives, the All China Federation of Democratic Women, the All China Federation of Democratic Youth, the All China Federation of Literary andArt Critics in China. There are a few 'Front' organisations viz, the National Committee of Christian Churches for the realisation of Self-Government etc.These bodies comprise members who are not diehard Communists. However, these79bodies are controlled by the Communist Party which keeps its own members in some of the key posts in these organisations. In the words of Hinton, "The servicesof these organisations rendered for the CCP are a legion. They help to create the impression at home and abroad which is only partially justified thatthe CCP enjoys overwhelming popular support. They aid in publishing and implementing its policies. They take part in its mass campaigns. They participatein international congresses and address communications to similar organisations in other countries."4These organisations serve as feeders of the Communist Party and enable the latter to have firm hold on the people of China. Each individual in China happensto be a member of some organised association brought into existence by the Communists themselves.5Minor PartiesA few minor parties which are accorded representation in the coalition Government of China also exist in China. In 1949 there were eleven such parties.In 1962 there were only eight such parties in existence viz, the Kuomintang Revolutionary Committee, the China Democratic League, the Democratic NationalConstitution Association, the Chinese Peasants and Workers Democratic Party, the China-Chib Kong Tung, the Chin San Society, the China Association forPromoting Democracy and the Taiwan Democratic Self-Government League. The Non-Communist intellectuals, businessmen and former Kuomintang officials opposedto Chiang Kai-Shek comprise their membership. Evidently China did not toe Russian line in allowing only one Party to exist in the country. In fact theseparties are the satellites of the Communist Party. In May Day message (1950) these parties declared, "We, the democratic parties of China are unconditionallyunited under the leadership of the Communist Party and Chairman Mao Tse-tung for the building of an independent free, democratic, united and prosperousChina." It's evident that these minor parties do not have separate identity in the sense parties have in a democracy. In a joint Greeting Message to Maoin 1960 six minor parties pledged that they would lean to socialism, listen to him and follow the Communist Party.6 It clearly reflects that minor partiesexist only as appendages of the ruling Party. Even then their importance is gradually on the decline. All the offices of importance are held by the membersof the Communist Party. Hence the name of coalition in Red China is a false pretence of shared authority worked exercise of Communist one party totalitariandictatorship.780Role of the Communist PartyThe foregoing details regarding minor political parties, mass organisations and youth leagues reveal that the Communist Party of China plays a pivotal rolein the country. All other organisations dance to its tune and follow the line laid down by it. It is the guiding force behind all major policies to beadopted by the State and society in China. In the words of Waller, "At the highest levels of the country's major institutions, the Party, Government andmilitary, the leaders of these organisations form a series of interlocking directorates to ensure that Party policies will be carried out."8 The role ofthe Communist Party in China may be explained as follows:As architect and defender of RevolutionLike its counterpart in the U.S.S.R., the CCP was the architect of the Communist Revolutions. By 1945, the Party succeeded in establishing 27 liberatedareas having a population of 85 millions and expanding Red Army. The KMT regime, led by Chiang-Kai-Shek, a stooge of American imperialists could not standthe tide of communism in spite of financial and military aid extended to him by the Americans. By 1949 Chiang and his forces were pushed from mainlandof China to Formosa Thus the efforts of the Communist Party bore fruit and People's Republic of China was born on October 1, 1949. Till the framing ofConstitution in September 1954, the Communist Party had to make frantic efforts to consolidate the Revolution. Under the inspiring guidance of Mao Tse-tung:special attention was paid to agrarian reforms during this period. The gains achieved during this period of nine years were to be further consolidated.Hence the New Constitution was framed in 1954 to fulfil socialistic aspirations and make further attainments in various fields, cultural, educational politicaland economic.During the transitional period which according to communist leaders was to last between 15 to 20 years, the Party was expected to establish a socialistsociety. However strictly in line with Marx-Lenin thinking dictatorship of the proletariat had to assume the highest manifestation of authority duringthis transitional period. In actual practice, the dictatorship of the proletariat was reduced to dictatorship of one man-General Mao who suppressed anti-Maothinking with art iron hand. The so-called Cultural Revolution was an attempt to purge the Party of the members who opposed Mao's ideology. However afterthe death of Mao and exit of Chiang, the mantle fell on Hua who could run the affairs for 5 years only. Thereafter era of collective leadership81with Deng as the main focus of power dawned. The Party has thus to be defender of Revolution now under collective leadership.As such, the Communist Party has not been only an architect of Revolution but also has been instrumental in its consolidation. It has successfully withstoodthe diplomatic onslaughts of the capitalist countries. Recognition of China by erstwhile USSR and the latter's attempt to woo it stands witness to thefact that China under the inspiring guidance of the Party bosses has been able to find a prominent place in the world politics. It is the biggest powerin Asia both economically and militarily. It has been able to get a rightful place as a permanent member of the Security Council. Thus even the U.N. hasultimately, recognised its importance. For the present supreme stature acquired by China the credit goes to the Party and once its undisputed leader MaoTse-tung.As explained at the end of the Chapter Deng Xiaoping replaced Mao as potential leader. Since 1978 he has been dominating the political thought of ChinaMarket economy advocated by him has been the beacon light for the party all these years. The Party has thus again been the architect and defender of thenew concept of socialism as sponsored by Deng who is said to have hijacked communism while unleashing economic reforms in 1978. The 14th Congress of theParty convened on October 12, 1992 at Beijing talked of New Revolution whose aim was "to fundamentally change the economic structure that had hamperedthe development and set up a socialist market economy'.9 Under Deng's influence, the Party discarded the 'left' principle of class Struggle as the keylink and switched focus to economic development. The General Secretary emphasised "Reform is also a revolution—a revolution whose goal is to liberate theproductive forces... Its the only way to modernise China. If we cling to outmoded ideas and remain content with the status quo we shall accomplish nothing."10Hence the Party was revitalised. The younger element replaced the old element in the Central Committee, apex body of the Party to the extent of 61 percent with an idea to defend the new concept more vigorously.The 14th Congress on October 19,1992 - its concluding day raised Deng to the mystical heights, endorsed his reforms and sought blessings from him in hisdramatic appearance on October 19, 1992. His appearance to which much symbolism is attached by the Chinese implies that the patriarch is at ease with hishandiwork namely the transformation of the party's orientation towards the market rapid growth and infusion of young blood in top organs"11 All this reflectsthat82the Party which has been once the architect of Mao's communism is now the defender of New Resolution brought about by 88 year old supreme-Deng Xiaopingwho held no formal position since 1990 but reigned supreme in the hearts of the rank and file of the Party and was adored by them. His writ ran throughthe party ranks and his thought was considered 'sermon on the mount.' He induced his party to uphold new brand of Socialism with Chinese characteristics.The General Secretary of the Party urged the delegates attending the 14th Congress to maintain Dengs' line for hundred years'12 It is thus evident thatthe party again under the leadership of Deng and his adherents initiated New Revolution and pledges. The present leadership of China in no way lags behindin toeing the line of the departed leader Mr Deng.Party as GovernorParty and government in fact are synonymous terms in a Communist country. China is no exception. However unlike that of Russian Constitution which has accordeda prominent place to the Party even in the Constitution, Chinese Constitution emphasises that the country is to be ruled by a people's democratic unitedfront led by the Communist Party of China during the transition to socialism. However this is a big hoax. As already said it is the Communist Party whichrules. The other parties are merely the yesmen bodies of Mao. The Communist Party controls the government as is the case in the U.S.S.R. It has becomethe directing party of the state organs. According to Tung-Pi-Wu three principles govern the relationship between the party and the government:(a) The party issues specific directives to the State as to the nature and orientation of the work.(b) the party carries out its policies through the state and its apparatus;(c) the party selects and promotes loyal and competent Party as well as non-party leaders to work in the organs of the State.Thus all major questions of governmental policy, domestic as well as foreign are first decided in the highest party organs and then implemented by the Stateorgans.How the Party Controls the GovernmentThe Party controls the government through various means. Firstly, through the practice of inter-locking placement of the Party and Government personnelhigh ranking party leaders are given key governmental posts. As already said the National People's Congress, the highest organ of the State is having overwhelmingmajority of83Communist members. Likewise the Chairman and Vice-Chairmen of Standing Committee, the Premier and the other members of the State Council, the Presidentof the People's Republic according to 1982 Constitution are the most important leaders of the Party? The pattern of party domination at the Centre is repeatedeven in the provinces and other lower units of the government, though to a lesser degree. However if a non-Communist is put as a head in a certain administrativeunit, a staunch communist is put as his deputy head. Thus it is correct to hold that the Party according to the New Constitution not only exists outsidethe government as a teacher and leader but also functions as the Prime force inside the government."13The Party does not only exercise its influence over the legislature and executive only. It permeates the judiciary and the armed forces as well. The ProcuratorGeneral and four out of six Vice-Presidents of the Supreme People's Procuratorate are drawn from the highest ranking leaders of the party. The judiciaryin fact served as the instrument of the Party to chop off tall poppies who happened to be eyesore for Mao Tse-tung. Its role even today remains the same.It dances to the tune of the new masters. In other words, it serves as a sharp weapon of the so-called dictatorship of the proletariat which in actualpractice has been reduced to mere dictatorship of the Party nay that 'Sir Oracle' the Secretary General of the Party who keeps others' lips sealed.According to 1954 Constitution the army was under the strict control of the Party. Formerly the Chairman of the Republic — a prominent leader of the Partywas the ex-officio Chairman of the Advisory National Defence Council. Ten of its thirteen Vice-Chairman and sixty-seven of its ninety-eight members wereimportant Communist party leaders. Likewise all Vice-ministers in the defence ministry were party comrades. One of the party comrades held pivotal postof Chief of the General Staff. All the general departments under him, worked according to the guidance of important party leaders. The 1975 Constitutiondesignated Chairman of the C.P. as the supreme command of the forces. That further tightened the hold of the Party. Hua after Mao held the Chairmanshipof Military Control Commission from 1976-81.Thus the Communist Party is all-embracing. It controls the legislature, dominates the executive, mans the judiciary and dictates the Army. Mao—the formerChairman of the Party ruled the country though since 1959 he left the office of the Chairman of People's Republic of China. After his death the positionof the Chairman of the party now termed as Secretary General has not been denigrated. We may agree with Barnett who said, "The Communist Party is the ultimate84political authority and the source of all decision-making on the mainland China today. It directs and controls the army, the government, the mass politicalorganisation and in fact every element in the extraordinarily extensive political apparatus of the Peking regime."14Thus it can be concluded that the CCP governs the country, in actual practice though it was not accorded a prominent place in the 1954 Constitution, unlikethat of the U.S.S.R., where the Party had been described as the leading core of all organisations and 'Vanguard of workers and tillers'. However the Constitutionof 1975 proclaimed, the Party as the Vanguard of the workers and the core of the leadership and whole Chinese people. The Preamble of 1982 Constitutionalso emphasises "under the leadership of the Communist Party of China and guidance of Marxism - Leninism and Mao Zedong thought, the Chinese, people ofall nationalities will continue to adhere to the peoples democratic dictatorship and follow the socialist road..." Thus the Party was accorded a supremestatus, as in the erstwhile USSR, constitutionally, as well. "The Party", rightly remarks Waller, "conceives of itself not as an administrative body butas a leadership organ deciding policies to be implemented by the state structure and supervising the execution of these policies."15Era of the Collective Leadership and AfterAfter the death of Mao in 1976, Hua Guo-feng who had been relegated to the background, had emerged as the leader of the Party as well. In 1975 after ChouEn-lie's death he had been assigned Prime Ministership of China. Thus he held two offices - headship of the government and the chairmanship of the Partytill September 1980. He is said to have believed in collective leadership. However internally erosion of his authority was gradually taking place. He waseased out of Prime Ministership in September 1980 on the plea that party work required more time and greater attention. He himself announced before NationalPeople's Congress while laying down the office of the Prime Minister that Party had decided as a general rule not to combine state power and the Partypower. It was a mere face saving device. In June 1989, the 6th plenum of the 11th Congress of the Party elected Hu Yaohang as the new Chairman. Thus Huawas completely divested of authority in the Party. Deng Xiaoping - the Vice Chairman of the Party and the Vice Premier was emerging out as the most powerfulman of the Party. In fact Deng aimed at ousting Hua. By June 1987 his intentions had been unmarked. It was he who was now accredited as the most powerfulman of China. Hua was still retained as a member of the Standing Committee85of the Politbureau of the Party and also Vice Chairman along with Deng and new Premier Zhao Ziyang. Deng was assigned Chairmanship of the Military Commissionas well in June 1981. All these changes were described by Deng Xiaoping as emergence of Collective leadership. A communique was issued after June 1981plenary session that there was 'full play of democracy'. It further stated "All comrades present spoke freely adopted the scientific approach of seekingthe truth from facts and displayed the spirit of criticism and self criticism in summing up historical experience and discussing and deciding the choiceof persons as leading members of the Central Committee."All this reflects that by June 1981, the earlier practice of undisputed leadership of one man had been abandoned. The Party was apparently functioning underthe collective leadership of Secretary General Hu Yaobang Prime Minister Zhao Ziyang and Vice Chairman Deng Xiapong. The critics describe this collectiveleadership as a facade. Deng Xiaoping - Chairman of the Military Commission and Vice Chairman of the Party was holding the balance. He was instrumentalin the choice of Secretary General (formerly designated as chairman of the party) Hu and Premier Zhao. Jiang Zemin the General Secretary emerged as anotherpowerful leader in the galaxy of collective leadership.60th anniversary of the Party and denunciationIt is irony of the fate that during the celebrations of 60th anniversary of the Party, both Mao Zedong and Hua Guo-feng were condemned and denigrated. Theywere condemned for their leftist mistakes. Maos Cultural Revolution was portrayed as non confirmation to Marxist and Leninist thought and devoid of Chinesereality. Mao was denounced for having promoted the personality cult which turned him into a demigod. Hua was condemned for having rigidly adhering to "outdatedMaoist dogma" and erecting personality cult around him.The new Chairman Hu Yaobang - a close ally of Deng most powerful man of China was said to be more pragmatic than earlier leadership. Hu stood for greatdemocracy in the Party. As a tactful man he made an attempt to pacify extreme leftists by describing Mao as the greatest national hero in Chinese history.However he emphasised that China must undo all the negative consequences of the Cultural Revolution and pledged to establish intra party democracy in China.Another shake upIn 1987 Hu Yaobang was made to resign on account of massive demonstration by the students. Zhao Ziyang - a liberalist took over as86General Secretary of the Party and initiated multifarious reforms. The Collective leadership that emerged by 1988 consisted of Deng Xiaoping Zhao Ziyang(General Secretary) and Li Peng (Prime Minister), Yang Shangkun (President) and later Jiang Zemin. The New leadership stood for world peace, democraticpolitical set up, coexistence friendly relations with neighbours and liberalised economy based on market forces. The leadership was also critical of Maoand his widow who remained behind the bars without trial.Demand for Greater Democracy and Leadership's ResponseIn May, 1989 President Gorbachev of Soviet Union paid a visit to China met leaders of China underlined the significance of 'Perestroika' and 'Glasnost'and emphasised cooperation between Soviet Union and China at Government and Party levels. In a way he preached the necessity of greater democracy in socialistcountries. It led to wild agitation by Chinese youth at Tiannamen square of Beijing. They demanded greater democracy, eradication of corruption from theParty and end of bureaucracy at Party level. Party General Secretary 'Zhao Ziang had soft corner for the students which was not appreciated by the restof the leaders. Hence he tendered resignation. The students demanded rehabilitation of Zhao and resignation of Li Peng who being a hardliner and conservativewas being supported by Deng Xioping. Even the army refused to use force on the students. Eventually it led to crackdown by another Division of Army onthe unarmed agitating students on June 3-4, 1989. It was a victory for the hardliners though a clear strangulation of democracy. Thousands of studentsbecame the canon fodder.The triumph in the crackdown resulted in the consolidation of position of Li Peng and Deng. Zhao Ziang was removed from all the prominent bodies of theParty as he was linked with the agitating students and denounced as counter revolutionary. Bulk of his adherents were also disgraced and removed. JiangZemin an ally of Li Peng was appointed as General Secretary. Thus the demand for greater democracy was dumped into the dustbin and orthodox hardlinerslike Deng,"Li Peng and Jiang Zemin, apparently became the beacon light for the Chinese teeming millions march towards democracy. It takes time for thewounds to heal. It is yet to be seen whether the revolution which was crushed by iron hand will not erupt again and engulf the party leaders who were responsiblefor the general massacre of the students.The Latest EventsImportant personnel changes are on the cards at the party congress with the election of a new ruling Central Committee and Politbureau. "For87the eight octogenarians who hold the reins of the country the present Congress of the Party will be their last - the next one is expected to take placein 1997. According to a western diplomat, it is a life or death fight for them (the senior conservatives). They have to put their proteges in the CentralCommittee if they want power to stay in the hands of their successors".16 Deng being aged - 87 years old - knew very well that 'this was the last fightof Deng Xioping'. He gave message to the countrys' Conservative leadership while paying a visit to the country's booming quasi capitalist South 'Reformor quit'. His trip boosts the economic reform movement that was stalled after a stern crackdown on democracy movement in June 1989. He emphasised in thetrip. "Reform and opening up include taking useful items from capitalism. We should not be afraid of others saying that we are practising capitalism" Accordingto Chinese critic, Dengs' trip to South represents the first real counterattack by reformers against the conservatives in the leadership in the run upto the Communist Party Congress before the end of 1992. It is an attempt 'to set the tone for the whole year.' Official newspapers, editorials and commentariesin past weeks have echoed Dengs' call to 'liberate thinking'. The key points of his speeches in the Trip are being circulated to the Minister level officialsin the Central Government. The Chinese analysts opine that Dengs trip reveals the weakness of the reformers. However it is too early to predict whetherthe reformers or the conservatives will ultimately with the upper hand in the intense high level leadership struggle being launched during the past andcurrent year.Latest pronouncements and structural changes (October 12-19, 1992)The 14th Congress of the Communist Party comprising more than 2000 delegates in its session opening, on October 12, 1992 at Beijing made momentous pronouncementsand effected structural changes in the Party apex bodies.Besides it laid down the economic policy to be pursued in times to come. In fact the new policy was a mere culmination of reform era ushered in by PatriarchDeng Xiaoping 14 years ago. In the words of Jiang Zemin the present General Secretary of the Party." China had begun a new revolution whose aim was tofundamentally change the economic structure that hampered development and set up a 'socialist market economy".17 He asserted,' Reform is also a revolutiona revolution whose goal is to liberate the productive forces. It is the only way to modernize China. If we cling to autmoded ideas and remain contest withthe status quo we shall accomplish nothing".1888In fact 'the General Secretary was applauding the new revolution brought about by Deng who later came to occupy same place in China as Mao Tse-tung. Dengin the beginning of the year had 'stated that planning and market were means of controlling economic activity and did not distinguish socialism from capitalism.Such a brilliant exposition of economic theory freed Chinese from the restrictive notion that the planned economy and market economy belonged to basicallydifferent social systems. Jiang reitereted, "the most profound change brought about by the reform in the last 14 years is that many ideological and structuralshackles have been shaken off'.19 Jiang stressed the need to perfect macro-control of the economy and stated that the extent to which planning was combinedwith the market might vary in different sectors of the economy and at different times. The public sector would thus dominate and other sectors would growsimultaneously with the principle of remuneration according to one's work. The 14th Congress had thus been-a "week long affirmation of the pragmatic policiesof Deng". Adherence to such an economic policy was a challenge to the left tendencies of depicting reforms as the road to capitalism' and also a counterattackon the 'Rightists' who defy party leadership and challenge socialism. According to an editorial comment "Market economy under Communist dispensations isa contradiction that bothers most socialists but not Mr. Deng Xiaoping who has transformed China into an economic giant pulling it out of ashes of CulturalRevolution. In fact Mr Deng quietly hijacked Communism when he unleashed economic reforms in 1978."20 The 14th Congress thus pledged itself to pursue theeconomic reforms and evolve a system that can take care of political dissent at the same time. It endorsed Deng's policy of adopting capitalist practicesto preserve communist rule.Structural ChangesThe 14th Congress recommended slightly younger Central Committee excluding the hardliners. Nearly half of the members of the Central Committee composedof 189 members slightly larger than the previous one (179) are new. Sixty one percent of the members are under 55 years of age reflecting that the CommunistParty is full of vigour and vitality and has a chain of successors.The Committee comprised of more military officers and quite a few members from south-eastern provinces that have played leading role in developing a marketeconomy.About 100 members of the Committee stepped down to make way for the younger blood. Even President Yang Shangkun and Legislative89Chairman Ivan Li resigned. Some top hardliners also tendered resignation - a clear reflection of the defect of their efforts to make ideological puritydominate the party agenda. The average age of the new Central Committee members is 56.3 with about 61 per cent below the age of 55.2I It is said to haveconstituted firm organisational guarantee for adhering to the partys ' basic line, further accelerating the pace of reform and achieving' greater triumphsin the cause of building socialism with Chinese characteristics. Commenting on the formation of the new Central Committee Raymond Whitaker remarks "Longmarch generation has retired preparing the way for an influx of younger economic reformists at the head of the Party".22Apart from Changes in the complexion and size of the Central Committee the Congress added three members to the Standing Committee and 14 new members tothe Politbureau. Vice Premier Zhu Rougji the new economic Czar who was earlier dubbed as China's Gorbachev got a seat in the Politbureau and its standingcommittee. General Liu Huaqing from the army and Hu Tintao a premier party boss in Tibet also joined the two apex bodies. Premier Li Peng and securitychief Quiashi retained their seats in the 5 membered Standing Committee the membership of which was raised to 7.23 Its other members are the General Secretary- Jiang Zemin and propaganda Chief Li Ruihuan. Thus hardline conservatives like Yao Yalin, Vice-Premier and Soang Ping - Party organisation incharge havebeen eased out. The new entrants to the Politbureau are President Yang Shangkuam's brother General Yen Bairing, Foreign Minister Qian Oichan Vice PremierZou Jiahua and foreign trade minister Li Lanquing. Thus this shake up gives extra clout to the army and foreign affairs and trade.The strength of the Politbureau has been raised from 17 to 20 as important cities and provinces have been given better representation in the Politbureau.The Party Central Committee approved a 5 membered secretariat headed by Hu Jintao - a new standing committee member.24Deng AppealsDeng who retired from all official posts in early 1990 but remained architect of new Revolution, dramatically appeared on the last day of the 14th Congress(in October 19, 1992) and blessed the just ended Congress of the Communist Party which affirmed his pro market line and sweeping changes in the top organs.He described Congress as a "great success" His appearance to bless the 14th Congress implies that the patriarch is at ease with his handiwork namely thetransformation of90the party's orientation towards the market rapid growth and infusion of young blood in top organs. However some analytical critics portray this appearanceas a sign of the fragility of the dispensation he has put in place requiring his overt moral support. Deng's words "I hope all people will continue towork hard" seem to be meaningful and self revealing.Struggle for Succession to DengDeng - 90 years old China's paramount leader died on February 19, 1997. Once holding supreme position in the party hiearchy Deng was held responsible forcurrent problems entailing so called reform path. The theorist Reu Zhougping linked the declining real incomes, growing disparity between coastal Chinaand the interior, even mounting corruption with the approach to reforms adopted in the last decade. Hence rumours are afloat for various "top players jockeyingfor position to succeed Deng" opines Rone Tempest conveying the political scene at Beijing. It was rumoured in certain quarters that Jiang Zemin who wasaccorded top position in the Communist Party in 1989 was likely to replace Deng eventually. However, the other possibilities were National Peoples' Congresschairman Qiao Shi or his comrade on the reformist Politbureau - Zhu Rongji and the ageing once disgraced Forum Party leader Zhao Ziyang on account of thefall for 1989 demonstrations in Tiananmen Square. Besides these three top players for the office, Yang Shangkun - the former President and Military leader,Wan Li and Bo Yibo - the former Politbureau members though all retired were also hoping against hopes to be on the top of hierarchical political structurein China History reveals that the key to power in China lies with the Peoples' Liberation Army (PLA). Deng's source of strength had been PLA. This happenedto be Jiangs'principal weakness. Hence it was being emphasised "whichever group wins will need the support of the army's senior leadership and at leastone of the surviving 'elder statesmen'.Post Deng EraJiang described Deng as a great man and a leader who ensured 'a smooth transition of power from the second generation to the third generation of leaders'.With the passage of time, Jiang seems to have befriended the PLA. In the first week of March 1998 all senior PLA officials pledged their support for the'Lone' leadership of Jiang who besides being the Secretary General of the Communist Party happens to be the President of China and Supreme Commander ofP.L.A. In a way a second term to the President Jiang was almost assured two weeks before the formalities of his re-election. Jiang who was shrewd enoughto win the support of staff91members of three command departments of the PLA—the Head Quarters of General staff, the General Political department and the General Logistics departmenthad vowed to carry forward his mentor's economic reforms on February 22, 1997. This paid rich dividends. On March 2, 1997 the Chinese top brass had pledgedsupport to Deng's announced successor Jiang Zemin quelling any possible revolt against the leadership. On March 16, 1997, the National Peoples' Congress(2720 delegates) also approved the Communist Party Chief Jiang Zemin and his collective leadership. Premier Li Peng remarked, "with the Congress end wecan see that the current collective leadership with comrade Jiang Zemin at its core enjoys the support of the Chinese people... China enjoys politicalstability."28 Thus over the past 5 years Jiang has been gradually and successfully cultivating the PLA and other centres of political assistance. He hasmanaged to fill up the key positions of Central Military Commission by his own loyalists. In order to appease PLA he agreed to modernise it in a big wayin return for their consent for troop reduction. Thus Jiang Zemin who started his political career as Deng's heir and first among equals during the latter's3 years of ailment and visible inactivity has been able to establish his ascendancy over the other possible centres of power viz Yang Shangkun, Li Pengand Zhao Ziyang. In his keynote address to the 15th National Congress of CPC he remarked, "China would reduce its armed forces by 500,000 in three years."It was being surmised that Jiang and top party leadership might have mutually agreed to modernise the PLA as earlier conceived in a big way in return fortheir consent for troop reduction. Besides, bureaucratic revolution is in the offing. Top brass party leaders proclaim it a new 'revolution'. Fifteen ministriesand commissions are being disbanded. The number of civil servants on the ministries is to be halved by the end of the year 1998. By the end of the nextyear provincial and local governments will be reorganised and millions more cadres will step out into the real world. Lio Gan, a member of State Councildescribed it as the biggest reorganisation of the government since 1947.References1. The Hindustan Times,, dated June 30, 1981.2. An amendment of the Communist Party is Constitution in 1985 changed the designation of the Party Chief. He was to be called Secretary General and notChairman of the Party.923. Hinton Harold C, in George M. Kohim (ed) Major Governments of Asia, p. 70.4. ibid.5. Schumann, F.H., Organisation and Response in Communist China. The Annals of the American Academy of Political & Social Sciences, January 1959, pp. 51-52.6. As quoted George Jan, "Minor Parties in Communist China", Current History vol. 43 No. 235, p. 175.7. ibid, p. 177.8. Waller, D.J., op. cit., pp. 42-43.9. Jianglewin: Need to establish socialist market (General Secretary Communist Party) economy - associate P.T.O. as quoted in Hindustan Times dated October3, 1992.10. Ibid.11. The first President under 1982 constitution Li Xiannian elected by 6th NPC in 1983 was a prominent party leader. In 1988 the 7th NPC elected Gen. YangShangkun as President a trusted colleague of Deng Xiaoping and again a distinguished leader of the Party.12. Whitling, Aliens, S (in Robert, E. Ward VC Macrides), Modern Political Systems in Asia, p. 174.13. Barnett Doak, A., Communist China & Asia, p. 14.14. Waller, D.J., op. cit., p. 42.15. Lever H. Sun: Hindustan Times dated February 22, 1992.16. Hindustan Times, dated, October 13, 1992.17. Ibid.18. Hindustan Times, dated October 13, 1992.19. Ibid., dated October 17,1992 p. 13.20. Hindustan Times, dated October 21, 1992.21. Ibid, dated October 19, 1992.22. Raymond Whitaker. End of road for China's old guard as in Hindustan Times, dated October inserted 20, 1992.23. Hindustan Times, dated October 21, 1992 p. 14.24. Ibid., dated October 20, 1992.25. Rone Tempest: Top players jockeying for position to succeed Deng as reported in Hindustan Times.26. Hindustan Times, dated March 10, 1998. (Beijing March 9, PT1)27. Ibid., dated February 23, 1997.28. Ibid., March 17, 1997.29. Ibid., dates March 13, 1998, p.20.1THE CONSTITUTION OF U.S.S.R. (ERSTWHILE)1 HISTORICAL BACKGROUND"The 1936 Constitution was adopted when we had in fact just completed the creation of the foundations of Socialism... What we now have in the Soviet Unionis an advanced full-fledged Socialist Society."—Brezhnev"The whole of Russian history is a story of accidents." Though in the present volume, we are concerned with the present Soviet Constitution, yet a briefsurvey of events preceding it, will interest the reader.Revolution of 1905"The cold murder of 500 workers and infliction of injuries to over 3,000 of them who were peacefully demonstrating against the tyrant Czar for getting theirgrievances redressed on Sunday, January 9,1905 under the leadership of Father Gepon - a clergyman, enkindled the fire which ultimately brought down thecitadel of Imperialist rule in 1917. Father Gepon while fleeing for his life, when police started firing at peaceful crowd left a message for the Czarwhich read as follows: "The innocent blood of workers, their wives and children lies for ever between thee, oh soul destroyer and the Russian people."The spilling of blood was to be avenged sooner or later. The magic of monarchy was gone for ever. Czar's attempts to pour oil over the troubled watersby announcing the Constitution of a parliamentary body known as "Duma", consisting of two Chambers in April 1906 could hardly succeed in hoodwinking theRussian masses. In the words of Dr. Finer, the Duma "was a shackled mongrel with little power."1The Fate of DumaThe 'Duma' was to be a tool in the hands of the Czar. It could make laws only on the initiation of the Czar who was vested with the veto power as well.In case, the Duma did not pass the budget, the last budget was to2prevail. The Duma could not make laws regarding loans. Ministers were to be responsible to the Czar and not to the Duma. The Czar could dissolve Duma athis discretion. How could a body of this type evoke a favourable response from the masses who no longer wanted to be governed by an autocratic ruler? Hencethe first Duma lasted from April to July 1906; the second Duma could function from February to June 1907; the third could enjoy a full term i.e. from November1907 to June 1912 and fourth could last from November, 1912 to February, 1917. With the advent of war, powers, if any, had been virtually withdrawn.The Great War and its influence on RussiaThough the foundations of the Czar's autocratic regime had been shaken, yet he frantically clung to the substance as well as the semblance to his power.The outbreak of war further exposed the infirmities of autocratic rule. The Russians were badly organized and ill-equipped. Gross incompetence in administrativedirection and military supply was quite discernible from the military disasters. Mobilisation was being speeded up, though means for equipping and provisioningthese "peasants in uniform" did not exist. Food was scarce. The blockade of the Baltic Sea further worsened the situation, as food could not be importedfrom the friendly countries of the world. On the one hand, the spectre of starvation haunted the soil, on the other hand, the profiteers and black-marketeersbelieved in making hay while the sun shone. Prices of commodities soared. In efficiency and corruption were the order of the day. The stupid policy ofprohibition deprived the state exchequer of more than a quarter of total revenue. Thus the country under these stirring circumstances was heading towardsa cataclysm which was apt to topple down the corrupt administration. Nicholas II—the Czar lacked practical sagacity and political acumen needed to facethe baffling situation. His advisers, chief of whom were, his unbalanced neurotic wife the Tzarina and Rasputin—an uneducated and licentious peasant, theso-called "man of God" and Boris Sturmer -the most incapable Prime Minister, always misguided him and made him dance to their tune. Under the influenceof the Empress and Rasputin, the Czar, committed the greatest blunder of his life by agreeing to resume the command of the army. The departure of the kingto the war theatres, ushered in an era of 'personal autocratic rule' of the Empress and Rasputin. The wise counsellors were removed. Many competent headsof departments who differed from the unwise policies of the Empress, and "man of God" were dismissed. By 1916, Rasputin was the virtual head of the Slate.Warnings to the Czar for impending3catastrophe by the loyalists went unheeded. Instead, the Czar fumbled and fumed. On December 30, 1916, Rasputin was assassinated by prince Yusupov and hissupporters. Thus the stage was set for the enactment of drama - the February Revolution.The February RevolutionIn this state of disintegration of morale and organisation, riots broke out on February 23, 1917. The troops sent to suppress them also joined hands withinsurrectionists. About 70 to 80 thousand workers and half tarnished people of Petrograd marched through the streets of Petrograd—the capital, demandingfood. The troops of the Petrograd garrisons instead of quelling the agitation actively helped them in aggravating the adverse situation. The Governmentfailed to resist the upsurge of Revolution. The Duma elected from its own members a provisional Committee and established a Provisional Government. TheCzar was forced to abdicate at the Duma's demand and fled with his family. Later on, he was slaughtered by Bolsheviks.It may be made clear that the breakdown of the Czarist authority in February-March 1917 was not brought about by the Bolsheviks. Lenin Was in Switzerlandand Trotsky was in New York. The collapse of the Czar's government cannot be attributed to the concerted action of any group or party. In the words ofSir John Maynard... "the people of Russia by a common but unconcerted impulse, stood out from this state, of which they no longer had need; and almostin a moment, it was not."2 In fact the whole affair was so sudden, so spontaneous and so few were prepared to fight for the Czar that only 100 personswere killed in the uprising. Dr. Finer has very well portrayed the character of this Revolution in the following words: "This was a Russia's real revolutionfor the authority of a 1000 years was gone. It was not Lenin's revolution; it was not the Communist Revolution; it was not the Revolution of the Bolsheviksor even the Mensheviks. It was a left wing bloc, loose but ardent that sent Czarism to perdition."3The Provisional GovernmentIn Petrograd, a national Provisional Government was set up by Duma, with Prince Lvov as its head. The rest of the members of his cabinet were mainly drawnfrom Octobrists (Conservatives) liberal and even monarchist members of Duma. Only the Socialist Revolutionary-Alexar.der Kirenski was included in it. TheGovernment aimed at establishing Parliamentary system of government within the framework of capitalist society but the people were not prepared to acceptit The4economic deterioration of the country necessitated a complete revolutionisation of the existing structure of society. The Radical groups dubbed the ProvisionalGovernment as a 'Middle Class Rule' The Petrograd Soviet of Soldiers and Workmen's Representatives which came into existence in February, 1917 stood againstProvisional Government since its inception. Soviets manned by the Social Revolutionaries and Social Democrats which were established in other parts ofthe country and in the army aimed at not only demoralising the army but also paralysing the Provisional Government. In fact, their activities paved theway for "October Revolution."In the meantime, Lenin arrived, with German connivance in a sealed train. "Now entered the sharpest revolutionary and most fanatical wills of all to agitateand seize the minds of the population."4 Trotsky arrived in May, after being released from internment, on the initiative of Russian Government. Other Bolshevikleaders - Kamenev Radek, Launacharski also came. Soon after their arrival, the Bolshevik leaders started agitating against the Provisional Government.Lenin issued his famous document - April thesis, which demanded immediate peace. He coined the slogan "All Power to the Soviet." On May 3 and 4 demonstrationswere staged against certain members of the Provisional Government under the guidance of Lenin and his colleagues. An attempted revolution took place inJune, under Bolshevik leadership though it was suppressed. Kerensky - the then premier failed to take drastic steps against the Bolsheviks and the reactionaryelements who were forging a united front under General Kornilov.The October RevolutionOctober 25 (or November 7,1917). The Bolsheviks started inciting the soldiers and peasants for an immediate cessation of hostilities and seizure of land.The masses stood by them. In the meantime the Bolsheviks had thrown themselves into army and labour politics. The second All-Russian Congress of Sovietswhich met on November 7, let Bolshevik troops quietly and simultaneously capture all public buildings and important military stations.The members of the Provisional Government were arrested. Kerensky managed to escape. It took only one day to round up the ministers and various other officialsand occupy the government offices. There was almost no bloodshed. It was an easy 'walk over.' A new government was set up. All its members except fourwho belonged to 'Left Social Revolutionaries' were Bolsheviks. The new Government was named as 'Council of People's Commissars' and was headed by5Lenin. At the same time the Congress of Soviets declared Russia as the Russian Socialist Federated Soviet Republic. Immediately after capturing power, theBolsheviks renamed themselves as 'Communists' and shifted the capital from Petrograd to Moscow. This completed the second stage of the Revolution. It isobvious from the account of the above two Revolutions that if the March Revolution set up a Bourgeois government, the November Revolution established aSocialist government. It may interest the reader that the November Revolution is known as "February Revolution" as well, according to Julian calender.Post-Revolution DevelopmentsImmediately after the November Revolution, the Second "All Russian Congress of Soviets" convened a Constituent Assembly. Elections to this assembly wereheld in November 1917. Bolsheviks could capture only 25 per cent of seats in the said Assembly. Socialist Revolutionaries won the majority. The Assemblyheld its session on January 5,1918 and refused to recognise the revolutionary decrees of the Congress of the Soviets. The Bolsheviks had hoped that theAssembly would approve Lenin's plans but the Assembly went to the extent of challenging the legality of Soviet regime. When it met next morning, January6, Red soldiers "hustled the members out and told them not to return."5 The Assembly was thus dissolved. A committee was appointed by the Central ExecutiveCommittee of the Communist Party to draft a Constitution for Russia. The Constitution was drafted and approved by the All Russian Congress of Soviets onJuly 10,1918.1918 ConstitutionThe 1918 Constitution established the Russian Socialist Federated Soviet Republic which comprised three quarters of the Czarist Empire. It embodied theseries of rules and decrees and declarations which were made between November Revolution and July, 1918. It established a Federation, though of a uniquetype. The framers of the Constitution aimed at toppling down the capitalistic superstructure of society and establishing a World Federation composed ofdiverse nationalities and scattered territories at no distant future. All this was compatible with Marxian ideology and Lenin's dream to have a CommunisticDemocracy. In fact, Lenin was keen to reconcile two incompatibles -the dictatorship of the Bolshevik leaders and genuine mass democracy. But he soon realisedthat he was crying for the moon. Hence for the time being, he opted for the former, though he suggested a scheme of government which should permit massparticipation to a certain extent.61924 ConstitutionThe 1918 Constitution was amended in 1923. The country was renamed as U.S.S.R. (Union of Soviet Socialist Republics). It was now to be comprised of fourConstituent Republics - the R.S.R., the Ukraine, White Russia and Transcaucasia. The Uzbek and Turkman Constituent Republics were added in 1924.After the Civil War was won, the Constitution of 1918 was to be made adaptable to the entire U.S.S.R. Hence it became the model for the one adopted in 1923.Though the new Constitution was put into effect in 1923, yet it was formally ratified by the Supreme Soviet of the U.S.S.R. in January, 1924. Hence itis often termed as 1924 Constitution.Though the new Constitution was considered a mere replica of the old one, yet it created three new bodies - All Union Congress of Soviet, All Union CentralCommittee and all Union Presidium. All Union Congress of Soviet was declared to be the supreme political authority of U.S.S.R. It was in fact a Parliamentof the country consisting of two Houses - the Soviet of Union and the Soviet of Nationalities. Voting was public and by a show of hands.Right to vote was granted to all except persons tainted by bourgeois origin or association with the Czarist regime, monks, priests, imbeciles, employersof labour and those who were engaged in trade or lived on their incomes.System of indirect election to all bodies except village or factory Soviets was introduced. Distinction between rural and urban voters was another distinctivefeature of 1924 Constitution. It provided one representative for every 25,000 factory workers and one representative for every 125,000 village peasants.Discrimination between rural and urban voters was made on the ground that a greater representation to the more advanced and indoctrinated industrial workerwas essential in the initial stages.Since federation was established by the Constitution, powers were divided between the Federal Government and the units mostly on the American pattern. Itmay however, be pointed out that the powers given to the centre were so wide that the entire economic system of U.S.S.R. was to be manned by the centre.Moreover, the Union Government was empowered to veto any law or decree of a constituent Republic, if it was repugnant to the Constitution. The Union Congresswas vested with the power of laying down general principles to be followed by the constituent Republics in7the matter of civil and criminal law, judicial procedure, labour legislation and schools.The administrative structure of the U.S.S.R. was to consist of a hierarchy of Soviets at whose base were kept village and factory Soviets and at whose apexwas the Central Executive Committee and the Presidium. In between the base and the apex were placed the country and city Soviets, Soviets of Territories,Provinces and the Constituent Republics.Defects of the 1924 Constitution(a) The use of indirect election separated the city voter by two stages and the rural voter by as many as four stages from his representation in the SupremeSoviet. Thus the idea of nkss democracy stood defeated.(b) Voting by show of hands hampered the free choice of voters.(c) Negating the right to vote to certain sections of people on the basis of religion, wealth and heredity was highly undemocratic.(d) The Congress of Soviets met for only a few days every two or three years which debarred even indirectly elected representatives from effective participationin the government.(e) Functional representation instead of territorial representation was adopted. It was unlike that of other democracies of the world. Due to its inherentdefects, the system was abandoned under the new Constitution framed in 1936.(f) Communist Party was the only tolerated party. It was rapidly turning into ruling elite. It operated either through the Soviets or quite frequently independentof them, in making decisions of importance.The Stalin Constitution (1936)The Constitution of 1924 lasted for twelve years. Between the years 1923 and 1935 several attempts were made to make the Constitution more democratic incharacter. The Constitution of 1918 and 1924 did not embody socialist system which was the cornerstone of Karl Marxian ideology. Two Five Year Plans hadaffected a tremendous change in the economic set up of the country. By 1932, rapid industrialisation had taken place in U.S.S.R. The Process of collectivisationalso had achieved tangible results. Private trade was substituted by co-operative trade. The basic political aim of the Second Five Year Plan was "thefinal liquidation of the capitalist elements and of classes in general, the complete elimination of causes that lead to class distinctions and exploitationand overcoming of the survival of capitalism in the8economic organisation and in the mind of men and the transformation of the entire population into conscious builders of the classless society." In fact,the class structure of the society was completely overhauled by early thirtees. The socialist society consisted of only two classes -workers and peasants.Hence, the old Constitution did not suit Russian society which had undergone cataclysmic changes. Hence the Seventh All Union Congress of Soviets appointeda Constituent Committee of 31 members on February 7,1935, with Stalin as chairman to draft a new Constitution. The Commission produced the Draft Constitutionafter a year's hard work. The Draft approved by the Presidium of Central Executive Committee was published in June 1935, to elicit public opinion. TheDraft Constitution was discussed in 527,000 public meetings. 36-1/2 million people participated in these meetings. 154,000 amendments were suggested. Anextraordinary session of All Union Congress of Soviets was convened which unanimously approved the Draft Constitution with only 43 minor amendments, onDecember 5, 1936. Stalin while addressing the Congress of Soviets hailed the new Constitution as "recording the establishment of Socialism, the disappearanceof class-war and the triumph of federal equality among the Nationalities."6The Stalin Constitution came into force in 1936.The Brezhnev Constitution (1977)Under the Stalin Constitution, the U.S.S.R. made rapid progress in every field and soon became a world power. Explaining the basic reasons for drawing upthe new Constitution of U.S.S.R. L.I. Brezhnev, General Secretary of the Communist Party said, "The 1936 Constitution was adopted when we had in fact,just completed the creation of the foundations of Socialism... what we now have in the Soviet Union, is an advanced, full-fledged Socialist State. Majorchanges of fundamental importance have occurred in every aspect of public life.... As a result, the world balance of forces has been entirely altered.There have, in brief, been the major changes in our Society and in our country's life since 1936." Accordingly, the Soviet leaders decided to give a newconstitution to the country. A committee of 96 members under the chairmanship of L.I. Brezhnev was appointed which placed the new draft of the Constitutionbefore the Central Committee of the Communist Party of the Soviet Union in its session on May 24, 1977. The Central Committee accepted the draft and recommendedits circulation for national debate. The draft was widely discussed by every section of Russian society in groups and meetings. The various9organisations expressed their views through press also. About 4 lacs of proposals for amending the draft were received by the Constitutional Commission.On the basis of these proposals the Commission amended 110 articles of the draft and added one new Article also. A special session of the Supreme Sovietof the U.S.S.R. was convened on October 7, 1977 to adopt the new Constitution which came into force from the same day. The Brezhnev Constitution of U.S.S.R.had 174 Articles and was the fourth Constitution since the October Revolution, 1917.71988 Constitutional Changes and AfterDrastic changes were effected in the Constitution in 1988 under the leadership of Gorbachev. The Congress of Peoples Deputies as directly elected body wasestablished and was turned as super Parliament. (The composition, position and functions of the Supreme Soviet and Presidium underwent drastic changes.A Constitutional Inspection Committee was also established to safeguard the Constitution. The democratic trend was in its full swing.8The hardliners amongst the Communists could not stand the restructuring of economy and the dawn of era of openness. Hence there was an attempt of coup againstGorbachev on August 19,1991. A state of emergency was declared sending shock waves across the world which had witnessed unprecedented reforms during Gorbachev'ssix years rule. His ouster as the Soviet President for 'health reasons' appeared 26 years after his pro-reform forerunner Khrushchev was replaced as partyleader by fellow party comrades. The reinstatement of Gorbachev was demanded by massive rallies and strikers across the Soviet Union. Even the troops wereall out for storming the Russian Republic Parliament building. The hardliners faced international opposition which is evident from the suspension of foodcredit guarantees and technical assistance worth 570 million pounds to the Soviet Union. All this resulted in the reinstatement of Gorbachev and triumphof the spirit of democracy and freedom. However the credit for organising resistance movement went to Yeltsin - (Russian Federation President) After hisreturn to Kremlin Gorbachev resigned from the Party leadership disbanded the Central Committee, confiscated the party property, banned party cells fromArmy, KGB and Interior ministry on August 24, 1991. The conspirators were arrested including Valentin Pavlov—the Prime Minister and Alexandar Bessmertnykh—the foreign minister. The heads of KGB, Interior and Defence ministries were removed. According to the critics, the coup attempt exploded the myth thatthe Soviet Union was unsuited to democracy.10Power Structure before collapse of Soviet UnionOn September 2, 1991 the Soviet Parliament approved in principle a new power structure to prevent disintegration of the country as a consequence of abortivecoup. Gorbachev and leaders of ten Republics presented a seven-point plan to the Congress of People's Deputies on Sept 2,1991. It envisaged setting upof an Inter-Republican Council as repository of all powers and growing independence to Republics to determine the form of their links with a new Unionof sovereign states. The Plan exhorted all the 15 Republics, including those keen for full-fledged autonomy, to immediately conclude an economic and collectivesecurity agreement, to preserve a united armed force and military strategic space. The New Power structure was to be composed of an Inter-Republican Councilof 20 representatives each, nominated by the Republican legislatures to decide council issues; a State Council of the Soviet President and leaders of theRepublics to coordinate domestic and foreign policy; and Inter-Republican Committee of all the 15 Republics to coordinate economic reforms.The changes proposed stunned the Deputies. Obviously their approval by the Congress meant the inception of new power structure in which the Republics wouldhave a decisive say and also end of the Congress itself three years before the expiry of its tenure. The sweeping changes were the outcome of the urgencyof the situation created by the abortive coup attempt and to "prevent further disintegration of power structure until a new political system" was conceived.However three Baltic Republics-Latvia, Lithuania, Estonia and Georgia refused to sign the agreement. Thus a break up of the Soviet Union, sooner than manyhad expected, after the turmoil of Perestroika and Glasnost seemed to be a writing on the wall. In fact the 70 hour drama in Moscow between August 19 to22 brought revolutionary changes in the bloodless Russian Revolution. One Republic after another declared their independence. The three Baltic states,Russia, Armenia, Georgia and Byelorussia were the first to declare independence. Gorbachev and his new team seemed to have accepted disintegration of SovietUnion when they were left with no alternative.9Historic Decision Sept. 5,1991In a historic decision on Sept. 5,1991 the Congress of People's Deputies (Soviet full Parliament) voted for the following nine article constitutional amendments:(a) Dismantling of. the highly centralised Soviet Union and converting it into a loose confederation.11(b) Abolition of the office of the Vice President.(c) Disbanding of the CPD and the Supreme Soviet(d) Transferring of all powers to Republics dominated structures till the signing of new treaty of Union of Sovereign states held together largely by economicand military alliance.(e) Restructured Supreme Soviet to amend the Constitution during transitional period.(f) The Lower House is the Council of Union to be formed from among the Congress Deputies by the Republics themselves according to their present quota.The rest of the deputies were to retain their status till fresh elections.(g) The State Council of the Republican Heads chaired by Gorbachev was to coordinate the internal and foreign politics of the country.(h) An interrepublican economic committee to perform the duties of an interim government, (i) In case of Presidents' ailment, the State Council to elect the caretaker President from its members, (j) All federal bodies responsible for the country's defence security,law and order and international affairs to be directed by the President and the StateCouncil, (k) The USSR Constitution to be applicable to the Republics to the extent it does not contravene their constitutions. (1) The Old Marxist-Leninist economic policy to be replaced by western style market economy, (m) Republics to be recognised as subjects of international law and their membership in the United Nations to be considered, (n) Independent Republics refusing to enter the new union to negotiate with USSR to sort out issues relating to secession, their joining of Nuclear NonProliferation Treaty and other international treaties and agreements.(o) To scrupulously honour during the transition period all international agreements and obligations assumed by USSR.10Commonwealth of Independent States (December 21,1991)On December 21, 1991 leaders of Eleven of the 12 Soviet Republics met at Alma Ata (Kaszakh Capital) and made history by signing agreements to proclaim anew Commonwealth of Independent states. It clearly signified a formal end to the Soviet Union. Leaders of all the Republics except Georgia agreed on threekey documents that had to serve as the bases for the new Euro-Asian Commonwealth. Russia took12the place of USSR in the UN Security Council. The leaders of Eleven Republics proclaimed that there was no role for Gorbachev in the Commonwealth and tookaway the only power and job he still had (chief of armed forces) by having Defence Minister as Commander in Chief of the armed forces pending a final decisionon the structure of the army. It was however assumed that Gorbachev would not be considered as Criminal and he would be entitled to financial and otherfacilities needed for his well being. He was expected to resign with dignity.11Blow to Gorbachev and resignationThe signing of the agreements dealt a severe blow to the frantic efforts of reformist Gorbachev to keep the Republics under a new Union Treaty. It was atriumph for Boris Yeltsin — the architect of the new Commonwealth and once an architect of Gorbachev and his saviour from coup attempt.Gorbachev who changed the face of the Soviet Union and the world resigned as President of the USSR on December 25,1991 (late night).12 It brought to a closethe Soviet chapter of History. In 12 minutes live television address he said "even now I am convinced that the democratic reform programme we initiatedin 1985, was correct.... Due to the situation that has evolved I hereby discontinue my activities as the President of the USSR.... The worst thing aboutthis crisis in the collapse of statehood.. I am concerned that the citizens of this country are ceasing to live in a great power." Gorbachev who had workedhard to save the Soviet Union with a new treaty after a craze of demands for independence since the mid 1990s nursed a hope... "our joint efforts willyield fruit and our peoples will live in a flourishing and democratic society... I will use my influence and possibilities to ensure that the Commonwealthof Independent states lives and works."13It fell upon his successor - Yeltsin, an uphill task to plant a new order upon the wreckage of the old Soviet Union. Yeltsin - undisputed leader of RussianRepublic and first among equals of the New Commonwealth of independent states faced a series of grave challenges that threatened to dash his hopes to theground before they even get off the ground Rutskoi remarked "under Yeltsin leadership there is neither Government nor democracy in Russia. If anarchy develops,the consequences could be unpredictable."14This commonwealth of Independent stales could not be of lasting nature. Their mutual bickerings and conflicts surfaced right from its inception. FormerSoviet President Gorbachev compared the situation in CIS to that of 'camp of gypsies' and made a political prediction that13"if economic and social problems were to worsen dictatorial regimes could be set up in different republics. In a way he prophesied possible disintegrationof the CIS unless they agree to strengthen their ties by the creation of joint bodies such as 'Common Political Council', Security Council and MilitaryCommand."15 His prophesy came out to be true. The CIS got extinct like house of cards.References1. Graham Stephen as quoted in The Governments of Europe by Munro, p. 631.2. Maynard, Sir John: "Russia in Flux", p. 499-500.3. Finer, Herman: Governments of Greater European Powers, p. 765.4. ibid, p. 766. 5. Munro: The Governments of Europe, p. 650.6. Munro: The Governments of Europe.7. See the last chapter - USSR after 1988.8. See last chapter for Constitutional change after 1988.9. Baltic States independence was recognised by the Soviet Union on Sept 6, 1991.10. Hindustan Times, dated Sept. 6, 1991.11. Hindustan Times, dated December 22, 1991.12. Hindustan Times, dated December 26, 1991.13. Hindustan Times, dated December 26, 1991.14. Hindustan Times, dated December 30,1991.15. Ibid dates March 10,1992 p. 15, "Gorbachev wars of CIS split."142 FEATURES OF THE BREZHNEV CONSTITUTION"...This is the fundamental law we looked forward to. It truly reflects our gains and our aspirations and hopes and correctly defines our rights and duties..."—BrezhnevThe Brezhnev Constitution of 1977 is a unique constitution. It is an embodiment of Karl Marxian theory of socialism. Brezhnev himself was of the opinionthat the constitution of which he was the architect, reflected the fundamental changes that had taken place in the Soviet Union since 1936. In fact thenew Constitution introduced drastic changes in the election procedure, and the organs of government. Moreover, the socialist system which had been establishedin all spheres of the national economy by now, was also the cornerstone of Brezhnev Constitution. The main features of the Brezhnev Constitution are enumeratedbelow.A Socialist State of the Whole PeopleWhereas Article (I) of Stalin Constitution declared the U.S.S.R. to be a Socialist State of workers and peasants, the Brezhnev constitution published onJune 4,1977 proclaimed the U.S.S.R. as socialist state of the whole people, superseding the concept of proletarian dictatorship and providing legal basisto the claim of abolition of classes. The Constitution lays down the fundamental principles of the new socialist system of society and the soviet structureof the State. In fact by 1936, the capitalist landlord and Kulak classes had disappeared from the Russian scene, hence socialism was established firmlyon the Russian soil. Exploitation had ended. Man was no longer haunted by his fellow creatures. Everybody was designated as a worker. Mutual assistanceand co-operation in such a state was order of the day. The worker15worked not for furthering his interests only. He worked for society as well. "From each according to his ability, to each according to his work" principleprevailed, as regards distribution of yield both from the field and the factory.Recognition of Socialist PropertyThe Soviet Constitution recognises two forms of Socialist property -State property and collective farm property. The forests, the factories, mines, land,mineral resources, transport, banks, municipal enterprises, etc., etc. constitute state property. A voluntary union of peasants to whom land is allottedby deed for being exploited by their joint labour, assisted by the large-scale machinery and credit facilities offered by the State, constitute 'collectivefarm property.' The collective farm to be managed by a committee elected by the peasants who were allotted the land. The peasants got remuneration on thebasis of quality and quantity of work, they put in on the farm. The collective farm committee was responsible for payment of necessary taxes to the Stateand also for placing at the disposal of the state such produce at a fixed price, as was specified in the law.Limited Personal PropertyThe Constitution allowed peasants and handicraftsmen to have a small private establishment of their own provided it is operated by their own labour andis not designed to exploit the labour of others. It is thus obvious that the Constitution permits small scale private enterprise. The Constitution alsoassures personal property to the citizens "in their incomes from work and their savings, of their dwelling houses, and subsidiary household economy; theirhousehold furniture and utensils and articles of personal use and convenience."It is evident, the framers of the Constitution were conscious of the significance of 'possessive instinct.' Hence despite their opposition to the institutionof Private Property, they could not totally negate it to the people;Dr. Finer explodes the myth of Russians' opposition to the institution of Private Property when he says: "....there is much inequality in the living standardsof Soviet citizens and their children. There are people who own cars, diamonds precious jewels, furs, homes, better clothing very unequally."1A Planned National EconomyA socialist state is apt to cater to planned national economy. According to the Constitution, the economic life of the U.S.S.R. was determined16and directed by the State National economic plan with the aim of increasing the public wealth, of steadily raising the material and cultural standard ofthe working people, of consolidating the independence of the U.S.S.R. and strengthening its defensive capacity. A network of integrated yearly, five yearly,quarterly and monthly planning has established the national economy. The Central Planning bodies - the State Commission for Long-term Planning and theState Commission for Current Planning operate under the Council of Ministers of U.S.S.R. The five yearly Plans were subject to approval by the SupremeSoviet and the yearly Plans by the Council of Ministers of U.S.S.R. The Planning had attained remarkable success due to the active co-operation of thepeople of U.S.S.R. who considered themselves as the masters of the State. In the words of Karpinsky: "This is one of the fundamental differences betweenour socialist society and capitalist society where each proprietor conducts his business exclusively in his own interest, for the purpose of making profit."Significance of WorkWork was a matter of honour and glory for the Russians. Article 14 specified, "The source of the growth of Social Wealth and of the well-being of the peopleand of each individual is the labour, free from exploitation of Soviet People." Thus all able bodied citizens had to work. They could not sit idle andbe parasite on society, as is the case in our country. All toiled both for their and society's interest. The Constitution guaranteed work to everybody.None was without work in U.S.S.R. This was really a distinctive feature of the Soviet Constitution.In some of the capitalistic countries, unemployment is rampant and work is drudgery. Hence discontent prevails among the masses. Russians often proudlyasserted that their worker was happy and considered work a worship. The Western democrats did not agree to this tall talk. Dr. Finer emphasises, "...thesignificant feature of an economy is not that people are employed but the magnitude of the rewards they obtain for their work. It is possible to be enslavedto work and still be on a low level of subsistence."2 The massive strike of 40,000 labourers in U.S.S.R. (in Central Siberia) on account of low wages confirmedDr. Finer's assertion.A Rigid ConstitutionThe Brezhnev Constitution was said to be rigid. Under article 174 an amendment to the Constitution could be effected by the Supreme Soviet by a 2/3 majorityin each chamber. However, for amending the17constitution neither the people nor the units were consulted. This is unlike that of Switzerland and U.S.A. where people and the units matter the most inamending the constitution. Though apparently requirement of 2/3 of both the Houses of Supreme Soviet, for amending the constitution catered to its rigidcharacter yet in actual practice such a majority was easily obtainable as Supreme Soviet was composed of the political favourites of the Communist Party- the only Party in the country. If the party desired a particular amendment to take place such an amendment was easy to make. Hence in actual practice,the amendment of the constitution took place without much difficulty. This made Russian Constitution flexible in character. Establishment of FederationThe Constitution established "a very complicated federalism designed to placate the national minorities within the Union."3 Article 70 stated "The Unionof Soviet Socialist Republics is an integral federal, multinational slate formed on the principles of socialist federalism as a result of the free self-determinationof nations and voluntary association of equal Soviet Socialist Republics." The Soviet Federation consisted of fifteen Soviet Socialist Republics, eachrepresenting a large nationality group. R.S.F.S.R. - the largest one of these was itself a Federation and was composed of autonomous republics, each basedupon a small nationality. Each Socialist Republic was allowed to conduct its foreign relations, adopt and amend its own constitution and to secede fromthe Union. "This latter provision is of course meaningless so long as 'all Union' Communist control is effective."4 The powers between the Centre and theUnits were divided on the American pattern i.e., the powers of the Union were enumerated and the residuary powers were supposed to rest with the units.In fact, the powers given to the Centre in U.S.S.R. were far wider than in the other federations like U.S.A. and Australia.Soviet Federation - a Multinational StateSoviet Federation was a multinational state inhabited by over 150 races and nationalities, differing from each other in language, customs, history and evenculture. Each nationality had its own homeland, its government and constitution. It was responsible for managing its own internal affairs through electedrepresentatives who enabled it to manage the affairs of the Soviet Union as a whole. According to Karpinsky, 'the U.S.S.R. is a fraternal family of nationsunited voluntarily and on the basis of equality by bonds of amity and close co-operation in a single federation. All these nationalities enjoy equal18rights in all spheres of governmental, economic, cultural, political and other public activity.'Chapter on Rights and DutiesAnother characteristic feature of the Soviet Constitution was that it incorporated a chapter of Fundamental Rights (Arts. 39-58) which had been termed asone of the most extraordinary Bill of Rights known to history. Rights specified in the Constitution included (a) employment with suitable compensation;(b) rest or leisure made possible by shortened working hours; (c) old age, sickness and disability insurance; (d) free elementary and higher education;(e) freedom of conscience and worship; (f) equality between men and women; (g) racial equality; (h) freedom of speech, press and assembly; (i) libertyto form trade unions, co-operative associations, youth organisations and other societies; (j) inviolability of person, residence and correspondence; (k)right to family; (I) right to inheritance.Though the Constitution guaranteed rights to the people, it imposed corresponding duties on them as well. Article 59 stated, "Citizens' exercise of theirrights and freedom is inseparable from the performance of their duties and obligations." Articles 59 to 69 described these duties and obligations whichrequired the citizens to be faithful to the Constitution, obey the laws, maintain labour discipline, fulfil social duties, respect the rules of the socialistcommunity, safeguard socialised property and perform military service. Eulogising the Chapter on the Rights and Duties under the Stalin Constitution Karpinskyremarked, "The rights enjoyed by Soviet citizens under the Stalin Constitution are very great indeed. At the same time, our Constitution imposes upon citizensdefinite duties to society and to the State. The duties of Soviet citizens correspond to the rights which they possess. Unlike the constitutions of thecapitalist countries, the Soviet Constitution contains no duties without rights. The rights and duties of Soviet citizens are inseparable."5It sets up a Parliamentary GovernmentThe Russians claimed that their constitution established a Parliamentary Government in the country. The Council of Ministers was responsible and accountableto the Supreme Soviet - the Legislature of U.S.S.R. During the latter's recess it was responsible to the Presidium - the standing committee of the SupremeSoviet. Likewise, the Council of Ministers and the Union and Autonomous Republics were responsible to their respective Legislatures. The Supreme Soviethad been empowered to appoint investigating and19auditing commissions which were expected to take the ministers to task occasionally. In actual fact, Parliamentary Government was conspicuous by its absencein U.S.S.R. The dominant position of the Communist Party in the U.S.S.R. reduced the so-called Parliamentary government to a farce. Sound and effectiveopposition - the very soul of Parliamentary Democracy was ruthlessly suppressed in U.S.S.R. Responsibility of the Council of Ministers to the Supreme Sovietwas far from reality. The ministers danced to the tune of the Presidium of the Communist Party. They were ousted when they lacked the confidence of theParty. The Supreme Soviet merely ratified the decisions of the Party.Separation of Powers recognised in theoryWhereas the Constitution of 1918 and 1924, violated the theory of Separation of Powers by concentrating all the legislative, executive and judicial powersin the hands of "All Union Congress of Soviet" the present Constitution gave recognition to the three branches of government. The Legislative Power belongedto the Council of Ministers and the Judicial Power to the Soviet Judiciary.A critical analysis of the Soviet Constitution however, makes us conclude that the theory had been recognised only in name. The Judiciary was under thecontrol of Presidium, the Procurator General and the Minister of Interior. The Presidium - a Committee of the Legislature possessed the final authorityof interpreting the Constitution: the judges were elected by the Supreme Soviet. The Presidium was a heterogeneous body possessing legislative, executiveand judicial powers. The dominant and all pervading Communist Party proved last nail into the coffin of the theory of Separation of Powers.Provision for a Plural ExecutiveUnlike that of India, U.S.A. and Great Britain, the U.S.S.R. Constitution did not make any provision for a formal singular Head of the State. Of course,the Chairman of the Presidium performed certain formal functions as receiving of foreign diplomats, yet the Presidium formerly consisting of thirty ninemembers was termed as the "Collegial Executive" of U.S.S.R. According to Draft Constitution published on June 4, 1977 the post of first Vice-Presidentwas created and the Presidium to consist of President first Vice-President, the Presidents of 15 Republics, a Secretary and 21 members. Thus total wasto be 39. After 1988 amendments composition was changed.6 Its number was not specified. Some of its functions were similar to that of the King of the U.K.and the President of U.S.A. It had been vested with power of20judicial review like Supreme Courts of U.S.A. and India as well. Because of its multifarious functions and collegial character it was described as the "20thcentury innovation." Its functions underwent a change after 1988 amendments, office of executive President was created and Supreme Soviet had longer sessions.Hence it suffered eclipse. It was no longer plural executive.Special position of JudiciarySoviet Judiciary was not a separate branch of the Government. It was a part of the administration. Its role was of a peculiar type. The courts were expectedto 'fight the enemies of the Soviet Government' and 'fight for the consolidation of the new Soviet system' and 'firmly anchor the new socialist disciplineamong the working people.' The highest tribunal of the country - the Supreme Court was not vested with the main power of a Federal Judiciary - i.e., thefinal interpreter of the Constitution. It was as such not a saviour of the Constitution. It was however, a guardian of socialist legality.One Party SystemUnlike that of U.S.A. or U.K. where the party system is an extra-legal growth, U.S.S.R. made a specific provision for one party system. The Communist Partywas portrayed as "the vanguard of the working people in their struggle to strengthen and develop the Socialist system." It was to be "the leading coreof all organisations of the working people, both public and states." There is no denying the fact that other organisations as co-operatives, youth organisationsand cultural societies possessed the right to propose candidates for these organisations and was under strict control of the Communist Party. Nobody wasallowed to criticise the policy of the top leaders of the Party formulating it. In the words of Carter: "To the westerners, it undoubtedly will seem anundemocratic instrument; but to the person who believes as the Communist believes that social and economic changes are the most important considerationsand that the Party's leaders have an infalliable scientific knowledge at all times of what is true, wise and just insistence upon freedom of criticismand opposition within the Party must appear wicked if not irrelevant."7 The guiding role of the Party had been further enhanced. The party which was formerlythe party of the working class had become the party of the whole people providing guide- lines in all spheres of effort and movement towards communismon a planned and scientific basis.21Provision for ReferendumArticle 5 of the Constitution provided for Referendum on any issue, either on the initiative of Presidium or one of the Union Republics. Since the enforcementof the Constitution, no measure had been put to the vote of the people, through Referendum. Thus this was only a paper concession.Principle of Democratic CentralismThe principle of democratic centralism was claimed to be the guiding principle of governmental and Party organisation and the procedure and also of thehierarchy of Soviets. Though the principle on its face seemed to be paradoxical, yet in U.S.S.R. it was construed as a system of Government in which thelocal units or organs of the government exercised virtually complete independence in managing their own affairs and were provided ample opportunities ofparticipating in the activities of higher units or organs of government. At the same time the higher governmental bodies exercised the power of formulatingbasic policy and of supervising, vetoing the acts of those below them. In the words of Ogg and Zink, democratic centralism means that, "Local units cando exactly as they like, so long as the agents of the government which are above them do not object."8 In fact, in actual working, democratic centralismdoes not embody as much of democracy as centralism. According to Fainsod. "In democratic centralism, centralism has primary significance."9The Procurator's officeIn feature (other features) of the Brezhnev Constitution, a Procurator's office headed by Procurator-General had been created. He was to be appointed bythe Supreme Soviet of the U.S.S.R. for a term of five years and was responsible to it. His main functions were (i) to ensure strict observance of the lawby all ministers and institutions and also citizens and officials; (ii) to keep a watch on administrative regulations in order to ensure that these donot contravene the law of the land; (iii) to act as guardian of socialist property, (iv) fight against the enemies of Soviet power, etc.The System of SovietsArticle 2 of the Brezhnev Constitution declared that all powers in the U.S.S.R. belonged to the people. The people exercised state power through the Sovietsof People's Deputies which constituted the political foundation of U.S.S.R. All other state bodies were under the control of and accountable to the Sovietsof People's Deputies. The Supreme22Soviet stood at the apex of the system of Soviets. The 1988 amendments created Congress of Peoples Deputies—a directly elected body. It was to be superSupreme Soviet. Apparently it eclipsed Supreme Soviets position being a directly elected body.Foreign PolicyThe Brezhnev Constitution added a special chapter on foreign policy of the U.S.S.R. Article 28 stated: "The U.S.S.R. steadfastly pursues a Leninists policyof peace and stands for the strengthening of the security of nation and broad international co-operation. The foreign policy of the U.S.S.R. is aimed atensuring international conditions favourable for building communism in the U.S.S.R. safeguarding the state interests of the Soviet Union, consolidatingthe position of world socialism, supporting the struggle of people for national liberation and social progress, preventing wars of aggression, achievingcomplete and universal disarmament, and consistently implementing the principle of the peaceful co-existence of states with different social systems."Article 29 elaborated the principles of U.S.S.R.'s relations with other states. These principles were Sovereign equality, mutual renunciation of the useor threat of force, inviolability of frontiers, territorial integrity of states, peaceful settlement of disputes, non-intervention in internal affairs;respect for human rights and fundamental freedom, the equal rights of people and their right to decide their own destiny, co-operation among states, andfulfilment in good faith of obligations arising from the generally recognised principles and rules of international law; and from the international treatiessigned by the U.S.S.R.Defence of the Socialist MotherlandA new chapter (Chapter V) was also added incorporating Articles 31 and 32 for the defence of the socialist Motherland "which is one of the most importantfunctions of the state, and is the concern of the whole people in order to defend the gains of socialism, the peaceful labour of the Soviet People andthe Sovereignty and territorial integrity of the state."Other FeaturesThe other features of the Brezhnev Constitution were: (i) It provided for uniform federal citizenship, (ii) All citizens were equal before the law, (iii)It provided for direct electoral system and universal adult franchise, (iv) It provided for a bicameral legislature. Both the Houses had coequal and coordinatepowers.23The above features made Brezhnev Constitution an important landmark in the political history of U.S.S.R. It was said to be a historic constitution to thegreat cause of communism.Evidently the constitution underwent drastic changes in 1988 under the leadership of dynamic General Secretary of the Communist Party. The Congress of PeoplesDeputies - a directly elected body was created as the highest organ of the state. The office of the executive President who was to be the Chairman of jointsessions of the Supreme Soviet was also set up. The two Houses of the Supreme Soviet were to consist of equal number of members besides they had to hold2 sessions in a year. Their sessions were to last for 3 to 4 months each. That affected the position of Presidium which was permanently in session andused to perform all the functions of the Supreme Soviet during its recess which used to be too long. The newly created office of the President also divestedPresidium of some of its functions. A constitutional Inspection Committee which was created to interpret the constitution was another welcome addition.10References1. Finer, Herman: The Governments of Greater European Powers, p. 832.2. Ibid., p.813.3. Munro: The Governments of Europe, p. 663.4. Ibid, p. 665.5. Karpinsky V.: The Social and State Structure of the U.S.S.R., p. 149.6. See last Chapter on 1988 amendments.7. Carter G.M.: The Government of the Soviet Union, p. 90.8. Ogg and Zink: Modern Foreign Governments, p. 849.9. Fainsod, Merle: How Russia is Ruled, p. 181.10. See details in the last Chapter.243 THE SOVIET SYSTEM"All power to the Soviets."—LeninThe Soviet System formed the basis of the political and constitutional organisations of the U.S.S.R. According to Vyshinsky 'the Soviets are state organsof the dictatorship of the proletariat.'What is a Soviet?The Soviet was a Russian word for a 'Council consisting of delegates of workers or the elected deputies. Parliament or legislative assemblies constituteits counterpart in 'bourgeois' democracies. It is purely 'proletarian institution'. In this respect it was an innovation. Unlike that of legislatures inWestern democracies it did not contain any representative of the exploiting classes - the landlords, the industrialists, the big business magnates. Russianleaders like Lenin denounced parliaments of the Western democracies as merely "Show-windows to delude the masses" because they contain mostly representativesof the capitalists. In the second congress of the Third International, it was proclaimed that the only form of proletarian dictatorship is "Republic ofSoviets."Objects of the SovietsThe Soviets aimed at "drawing the whole of the poor into the practical work of administration." In the words of Lenin, "The Soviet system is immensely superiorto bourgeois parliamentarian for drawing in the freest, broadest and most energetic manner all the masses in the work of government. It is a power thatis open to all, that does everything in the sight of the masses, that is accessible to the masses, that springs directly from the masses." In other wordsSoviets aimed at upholding the mass democracy so dearly cherished by the Russian revolutionaries. They25stood for the universal participation of the working people in the management of the state.Origin of the SovietsThe idea of Soviet was mooted in England in the early nineteenth century. A follower of Sir Robert Owen sponsored a plan to abolish the House of Commonsand institute a government based on council representing the trade unions. However, the word 'Soviet' is of Russian origin. It first appeared in U.S.S.R.in 1905, when a strike Committee was set up at St. Petersburg to organise general strike. The said committee was militant in character as it had to defythe ban imposed by the tyrant Czar on strikes and labour unions. It was the first Soviet of its kind which succeeded in forcing Czar to grant manifestoof 1905, granting to the people the immutable guarantees of civil liberty upon the basis of real inviolability of person, liberty of conscience, of speech,of assembly and of association. Such Soviets came into existence in various parts of the U.S.S.R. almost spontaneously. Since they were militant in character,they were suppressed by the end of 1905.They reappeared on the Russian scene during February-March Revolution of 1917, first in Petrograd and then in other Russian cities also, they sprang upwith a rapid speed. Lenin described them as the "pattern of future revolutionary action and a type of organisation through which the masses of workersmight participate directly in political life." The other Bolshevik leaders also took them for the best means for carrying out revolutionary proletarianstruggle. Lenin went to the extent of coining a slogan. 'All power to the Soviets.' After the Revolution the Soviets became the basis of the New anisation of Soviets before 1936 i.e., before Stalin ConstitutionAs already said, the Soviets became the basic organs of government in every administrative area of the U.S.S.R. Since 1918, they constituted a hierarchicalstructure with village and factory Soviets at the base and the All-Union Congress of Soviets, at the apex. A brief description of the Soviet pyramid before1936 will not be out of place.(i) Village and Factory SovietsEach village or factory had its own Soviet or Council which was vested with the power of performing all matters of local importance. Elections to the villageSoviets were direct. However, villages having a population of less than three hundred either governed themselves directly by constituting assemblies ofall adults or joining hands with villages of the36same character, elected their Soviets for ruling them. Likewise factories employing less than 100 co-operatives forged a united front with three or fourothers and elected a common factory Soviet. The factory Soviet looked after the social life of the workers, and also the factory itself.(ii) District SovietsThe District Soviet was composed of the representatives of the village Soviets and factory Soviets within the precincts of the district. The representativesto the District Soviets were elected by the village and factory Soviets. These Soviets were entrusted the power of looking after the district, subjectto the orders of the higher unit. Each district soviet had its executive committee which was empowered to deal with general administration and to controland co-ordinate all Soviets within its area.(iii) Regional SovietsEach constituent Republic of the U.S.S.R. was divided into several regions for the efficient conduct of administration. Each region was supposed to haveits own Soviet, composed of representatives drawn from various districts, town and factory Soviets within the region. These representatives were thus electedindirectly. The village Soviets did not have direct representation in the Regional Soviets.(iv) Autonomous Republic SovietsThe Regional Soviets of a republic elected representatives to the Congress of the Republic. The Republic Congress was comparatively an unwieldy body. Hence,it met only once or twice a year. It elected a Central Executive Committee, and equipped it with legislative powers. The said committee was accountableto the Republic Congress. Since this committee was also a numerous body and met once in three months, it elected Presidium which functioned during therecess of the Executive Committee. A Council of People's Commissar (Council of Ministers) was also to be elected by the Republic Congress. Each commissarheaded a particular branch of administration.(v) All Union Congress of SovietsAt the apex of the pyramid was the Ail-Union Congress of Soviets which was composed of the representatives of Town Soviets and Rural Soviets. The urbanSoviets were accorded representation at the ratio of one representative for 25,000 workers whereas rural Soviets were given representation at the ratioof one representative for every 1,25,000 peasants. The All Union Congress of Soviets was vested with the power of making laws for the country. Since itwas a huge body, consisting of more than 2,000 members and since it did not meet frequently, it27delegated its power to the Central Executive Committee, which was accountable to its parent body. The executive committee was also a numerous body, henceit elected presidium of 27 members which functioned when the former was not in session. Besides, All-Union Central Executive Committee also elected UnionCouncil of People's Commissars whose functions were analogous to those of the ministers in a parliamentary form of government.It will not be out of place to point out that the electoral system then in operation discriminated rural voter from that of his urban counter-part, as theurban areas were given proportionately greater representation than was denied to certain categories of persons viz., those employing hired labour for profit,monks, clergymen, traders, and persons who had served under the old Czarist police and the members of the ruling dynasty.Soviets after 1936The constitution of 1936 removed all the restrictions and extended the right to vote, to all citizens male or female at the age of eighteen. Moreover, electionsto all the Soviets were made direct. The deputies so elected for the various Soviets were subjected to recall. Open Ballot system was replaced by secretballot. The importance given to the Soviets even according to the Stalin Constitution was evident from Article 2 of the Stalin Constitution: The articleran as follows 'The Soviets of the working People's Deputies which grew and attained strength as a result of the overthrow of landlords and capitalistsand the achievement of the dictatorship of the proletariat, constitute the political foundation of the U.S.S.R."The Brezhnev Constitution also gave primary importance to the system of Soviets. Under Article 2 of the Constitution, all powers in the U.S.S.R. belongedto the people who exercised state power through the Soviets of People's Deputies, which constituted the political foundation of U.S.S.R. All the statebodies were put under the control of and were accountable to the Soviets of People's Deputies.Functions of SovietsThe Soviets at all levels were vested with governmental functions either directly or through committees appointed by them. The highest Soviet viz., theSupreme Soviet of U.S.S.R. performed all those functions which in other countries the legislatures and the executive perform. It will interest the readerto note that in U.S.S.R. even the lower Soviets wielded authority far wider in scope and significance than the one exercised by the local bodies in theother countries. Referring to the28functions of the village Soviet, Sidney and Beatrice Webbs in their eminent work Communism, a New Civilisation, remarked, "Within its territorial limits,the village Soviet has the control of the execution by all citizens and officials, of the law and the instructions of the government... The village Soviet,may within its wide competence under the statute issue obligatory ordinances and impose administrative penalties and fines... The village Soviet is toinstruct, to supervise to inspect and to audit to insist on the fulfilment of all obligations and on 'obedience to all laws and regulations. Moreover,it is equally part of the duty of the village society to keep an eye on the operations of the State manufacturing and trading departments of the locality.Within the village itself, there is practically nothing that the Soviet may not organise, regulate or provide at public expense from roads to water-suppliesthrough club houses and dance floors upto schools, theatres and hospitals."Though the hierarchical structure of Soviets looked very impressive and highly democratic, yet in actual practice the Soviets, at all levels, had to danceto the tune of the Communist Party. Along with the hierarchy of the Soviets, was the pyramid of party organisations which ultimately controlled the so-calledrepresentative bodies at all levels. In the words of Stalin, "No important political or organisational problem is ever decided by our Soviets and othermass organisations without directives from the party."1 The Soviets were in fact, "transmission belts" which linked the party with the masses. The partyhad made full use of the Soviets to broaden its influence with the masses and to elicit co-operation of non-party elements in the tasks of administration.Moreover, the process of nomination of candidates and their subsequent election to the Soviets was a big farce. Nominations were made generally in the meetingsof factory or farm workers or of the inhabitants of an electoral area. Generally the party made it known beforehand its nominees - the political favouritesand these meetings invariably endorsed these names. If organisations other than the Communist Party also proposed some names, informal conference committeeswere appointed to make the choice of one candidate. Here, the Communist Party exercised its indomitable influence and guided the choice which was apt tobe made finally. On the election day the choice to be made by the voter, used to be confined to one candidate only which made the mockery of representationcrystal clear.Reference1. Stalin, J.V.: Leninism, Vol. I, p. 33.294 FUNDAMENTAL RIGHTS AND DUTIES"...a genuine charter of the rights of emancipated humanity."—VyshinskyThe Brezhnev Constitution like the Stalin Constitution embodied 'one of the most extraordinary Bill or Rights known to history' which could rightly be acclaimedas the "genuine Charter of the rights of emancipated humanity." The early constitutions of 1918 and 1924 did not make a mention of the rights of the toilingmasses probably because the time was not ripe for such liberties. Danger of counter-revolution was haunting the minds of Russian leaders. By 1936, thefoundations of socialism had been firmly laid and the danger of internal foes and external enemies had receded to a great extent. Hence, the declarationof rights could no longer be postponed. In fact, it was no longer politically feasible to negate legitimate liberties to the people who were being assured'heaven on earth' since October Revolution. Accordingly, the 1936 Constitution incorporated the basic rights of the citizens. The Brezhnev Constitutionhas further widened the scope of these rights. Whereas the Stalin Constitution contained twelve articles (118-129), the Brezhnev Constitution had devotedtwenty Articles (39-58) to describe the fundamental rights and freedoms of the Soviet citizens.Before we discuss these rights and their reality, we deem it essential to enumerate briefly their special characteristics which distinguish them from therights enshrined in other constitutions of the world.Characteristics of Russians' Rights(a) Civil Rights secondary to Social and Economic RightsSince the Soviet leaders had always emphasised that political democracy without economic emancipation is a mere farce, they30attached more importance to the economic and social rights than to the civil rights. Stalin once said, "Real liberty can exist only where exploitation hasbeen abolished, where there is no oppression of some by other, where there is no unemployment and poverty, where a man is not haunted by the fear of beingdeprived of work tomorrow, of home and bread. Only in such a society is real and not paper, personal and every other liberty possible.1The precedence to social and economic rights over the civil rights was obvious from the fact that the charter on the Rights opened with the right to work,and continued with the right to rest and leisure, the right to maintenance in old age or in case of disability and sickness.(b) Civil Rights to conform with workers' interestsCivil rights as incorporated in the Russian Constitution were conditionally guaranteed to the people. They must be "in conformity with the interests ofthe working people and in order to strengthen the socialist system." It implied that these rights could easily be abrogated on the plea that they did notconform to the workers' interests or were antagonistic to the socialist order. In the words of Vyshinsky "In our State naturally there is and there canbe no place for freedom of speech, press and so on for the foes of socialism."(c) Non-incompatibility of State and Individual's interestsThe Soviet "Charter of Rights" was based on the contention that the interests of the individual and the State were not incompatible with each other. TheSocialist State alone could safeguard the workers as it did not discriminate between the interests of the individuals and those of the State.(d) Rights and Duties go togetherIt was the first constitution of its type which asserted that every right had a corresponding duty. The articles enumerating the rights did not ignore duties.In the words of Karpinsky, "with us there are no rights without duties just as there are no duties without rights." Since under the Soviet regime the workingclasses were considered the masters of their own country, they must not be apathetic in performance of their duties.(e) No natural rightsRussians did not believe in the concept of Natural rights. All rights emanated from social order which had been established on the ruins of capitalisticorder. Hence the Socialist State was fully empowered to intervene in any of these rights when it deemed fit.31(f) Rights are UniversalBrezhnev Constitution guaranteed equal rights to all citizens of the U.S.S.R. irrespective of race, nationality or sex. Women had been given special facilitiesfor their self-development. The citizens of other countries and stateless persons also were guaranteed the rights and freedoms provided by law.Fundamental Rights as provided in the ConstitutionArticles 39 to 58 of the Constitution contained fundamental rights which had been assured to the Soviet citizens. Some of these rights bore close resemblanceto the rights incorporated in the constitutions of other democratic countries of the world, some of them were novel and were provided to the Russians alone.Articles 40 to 45 described the economic rights of the citizens. In the words of Schapiro, "These are naturally given pride of place because of insistenceof Marx and Lenin after him that the civil freedoms guaranteed by the constitutional law of bourgeois societies are valueless in the absence of guaranteeto all of sufficient economic independence to make their enjoyment a reality."2 Following were the economic rights guaranteed by the Soviet Constitution.Right to WorkArticle 40 guaranteed work with payment according to its quantity and quality. It was one of the greatest achievements of the Soviet people. It was ensuredby the socialist organisation of national economy, the steady growth of the productive forces of Soviet Society, the elimination of the possibility ofeconomic crisis and the abolition of unemployment. Since capitalism had been abolished the instrument and means of production had been socialised, thecitizens had been allowed an access to these means of production. It had resulted in a great improvement in the material condition of the Russian masses.Dr. Finer, however, did not raise the "right to work" to the mystical heights. Rather he was of the opinion that it was possible to be enslaved to workand still be on a low level of subsistence. With the exception of upper class Soviet workers, the standard of living of the workers in general was verylow due to the managerial faults and plans of the leaders of the Government, Party and their administrative officials. There was substantial truth in Dr.Finer's assertion but one thing is certain that unemployment which was rampant in some of the capitalist countries had been completely eradicated in U.S.S.R.32Right to Rest and LeisureArticle 41 assures right to rest and leisure to the citizens of U.S.S.R. Fixation of hours of work for the various categories of the workers was a steptowards this direction. Originally seven hours' work a day was fixed up for the workers. By an amendment it was fixed at eight hours for factory and officeworkers, seven hours for arduous trade and four hours for shop-keepers where conditions of work were very hard. Moreover, annual vacation on full pay,a vast network of sanatoria, health resorts, rest houses and clubs for the workers were some of the other amenities professed to have been provided tothe workers in U.S.S.R. Karpinsky stated that the state and the trade unions have built numerous rest houses, sanatoria and clubs provided with cinemas,libraries and stadium parks and athletic grounds. Big cities erect palaces of culture. Collective farms maintain their own rest houses, clubs and parks.He concluded "It goes without saying that no capitalist country is or could be so solicitous about providing rest and leisure for the working people."3Dr. Finer on the other hand is rather sceptical about the actual existence of these facilities for all types of workers. He emphasised, "Annual vacationwith pay are promised. But they are withdrawn unless the workers obey... unconditionally. The sanatoria and the rest houses etc., go to the intelligentsiaand heroes of Soviet Labour."4 He further asserted that these concessions were not meant for the workers in the lower ranks. There is no denying the factthat only top class workers were provided some of these impressive facilities.Right of MaintenanceArticle 43 recorded the right of the Soviet citizens to material security in old age and also in case of sickness or disability. Old-age pensions were paidto the employees for life whether they were able to work or not, to the extent of 50 to 60 per cent of their average earnings. Pension was paid to theminors and those who were incapacitated after the demise of the pensioner. Those who were permanently disabled on account of an industrial accident, aprofessional disease or active military service, got pensions which varied from 50 to 100 per cent of their average earnings. The minimum old age pensionwas fixed at 300 roubles and maximum at 1200 roubles a month. The pensioners also were allowed to work. Since January, 1965, old age pensions had beenintroduced for the farmers as well. Those who had lost capacity to work for the causes other than those referred to above received pensions to the extentof one to two-thirds of their average earnings. In case a worker was temporarily disabled, benefits amounting to 50 to 100 per cent of33average earnings were paid. Collective farmers in their old age or in case of sickness and disability were materially supported from their collective farms.Moreover, State supplied free medical aid at home and in its clinics, dispensaries and hospitals to the workers of all types. A vast network of sanatoriaexisted considerable part of whose expenses were defrayed out of State and Trade union funds.Insurance funds were specially built up in order to provide redress to the workers in distress. A couple of comparative Figures quoted by Karpinsky illustratethe amount of work done by the State in this direction in a brief spell of time. "In Tsarist Russia there were 1,42,000 hospital beds. In the Soviet Union,there were 7,10,000 in 1940.... In 1940 the budget provided for the expenditure of 8779,000000 roubles on State Insurance and Social maintenance. The 1947budget appropriated 29,900,000,000 roubles for these purposes." In the budget for 1949 the All Union Government allocated over thirty thousand millionroubles for financing Social Insurance. In fact, more and more funds were being earmarked for financing the 'Social Insurance Scheme' with the marked industrialand agricultural development of the country. A separate ministry to deal with the social insurance in U.S.S.R. had been established at the Centre as wellas in the Union Republics. Dr. Finer is critical of Social Insurance scheme as well. He remarked "Soviet workers have Social Insurance. So have workersin Democracies but in the former the funds and terms of benefit are not decided as in the latter largely by the freely applicable pressure of the workers'union through free political parties that determine the enactments of the legislatures and control the administration."5 Moreover, in practice the rightto security was not provided to all citizens of U.S.S.R. The peasants who still constituted nearly half of the labour force, were not included in the categoryof 'workers and employees.' Hence, they were not normally covered by Social Insurance schemes.Right to Health ProtectionUnder Article 42 citizens of the U.S.S.R. had the right to health protection. This right was ensured by free, qualified medical care provided by state healthinstitutions, by extension of the network of the therapeutic and health building institutions; by the development and improvement of safety and hygienein industry, by improvement of environment, by prohibition of child labour and by developing research to prevent and reduce the incidence of disease andensure citizens a long and active life.34Right to HousingUnder Article 44 citizens of the U.S.S.R. had the right to housing which was ensured by the development and upkeep of state and socially owned housing byassistance for co-operative and individual house-building, by fair distribution of housing and by low rents.Right to EducationThe right to education was guaranteed by Article 45. It was ensured to all citizens by an extensive system of primary seven year, secondary and specialsecondary schools and higher educational institutions. Instructions in each of these institutions were imparted in the native language. It was furtherensured by "the organisation in industrial and agricultural establishments of free vocational technical and agronomic training, by night schools for youngworkers and peasants, one-year agricultural schools and various study courses and correspondence school."6 The state undertook to give stipends to brilliantstudents of higher educational establishments. In the initial stages, education was compulsory and absolutely free to the 7th form. According to the StalinConstitution, higher education too was to be free. But in 1940, fees were introduced in the three senior classes of secondary schools and in the institutionsof higher learning. Amendment to this effect was made in February, 1947. Since September 1956, tuition fee was not charged in higher schools. In fact educationwas popularised to such an extent that by the end of 6th 5-year plan (1956-60) universal secondary education was introduced in all parts of the country.Polytechnical training was introduced in the secondary schools. Special facilities existed for brilliant students. The students who showed satisfactoryresult in their studies were entitled to a monthly allowance throughout the period of their study. The children of pensioners, soldiers up to the rankof captain and some other categories of students as orphans, were not required to pay any fees. The above steps in the field of education wiped out illiteracyfrom U.S.S.R. completely. Cultural and scientific attainments of U.S.S.R. were simply incredible. Karpinsky very well summed up the right in these words"The words of Soviet Constitution proclaiming the right of citizens to education read like an ode to education, science and culture." Even Finer who verystrongly condemned the Soviet educational system as suffused with the political teachings of Marx, Lenin and Stalin and party doctrine, which were injectedin the tender minds from the earliest moments of learning consciousness, could not help confessing. "Yet it would be wrong to depreciate the educationaladvances made in the U.S.S.R. - that is the magnitude and quality of35schools. The teachers and pupils work very hard and achieve a sound grasp of their subjects. They have no time for idleness or exhibitionism and soft subjects."Right to enjoy cultural benefitsArticle 46 gave to the citizens of U.S.S.R. the right to enjoy cultural benefits. They had free access to the cultural treasures of their own land and ofthe world that were preserved in state and other public museums. The State ensured development and fair distribution of cultural and educational institutionsthroughout the country, developed radio and television broadcasting, extended free library service and expanded cultural exchanges with other countries.Freedom of Scientific, Technical and Artistic workArticle 47 guaranteed freedom of scientific, technical and artistic work. This freedom was ensured by broadening scientific research, encouraging inventionand developing literature and the arts.The Equality of Men and WomenArticle 35 of the Constitution legally confirmed women's equal rights with men in all spheres of governmental, economic, cultural, political and other publicactivity. They possessed the right to vote and to be elected to any public office of importance in U.S.S.R. They had the same right, as that of men, towork, payment of work, rest and leisure, education and internal security. They were entitled to hold and were actually holding jobs which were formerlyconsidered the exclusive preserve of men. The State displayed great solicitude for their health. Female labour was forbidden in arduous trades or hazardousjobs. Nursing Mothers were not permitted to work overtime or at night. Special concessions were allowed to the expectant women. Maternity leave with fullpay was granted to them by all state enterprises and institutions. Women working in the collective farms were exempted from work for one month before andone month after childbirth. A vast network of institutions, for looking after the mother and the infant existed in U.S.S.R. (in fact motherhood was honouredin U.S.S.R.) Mothers of large families received substantial benefits from the state to bring up their children properly. Even the unmarried mothers wereprovided full state benefits to rear their children. They were allowed to entrust such children (commonly termed as "illegitimate off-springs" in othercountries) to the state to be brought up at its request. This is unparalleled in the history of mankind. Moreover, mothers often got state benefits onthe birth of the third and every succeeding child. The36honorary title of "Heroine mother" was conferred on a lady giving birth to ten or more children. It was thus quite evident that unlike some of the capitalisticcountries of the world where women were still accorded far inferior status to men, in all walks of life, U.S.S.R. had guaranteed them absolute parity withmen. In the words of Karpinsky "The Soviet State put an end to the outrageous inequality and oppression of women. It established completely equality ofrights between men and women, something which does not exist in any capitalist country in the world."Racial and national equalityU.S.S.R. was a land of varied nationalities, embracing different cultures, speaking different languages and belonging to different races. The Soviet Governmenthad never shown any discrimination to these races. Article 34 of the Constitution guaranteed equality of the rights of Soviet citizens irrespective oftheir nationality or race in all spheres of governmental, economic, cultural, political and other public activity. Every Soviet citizen irrespective ofhis nation or race enjoyed the same political rights as all other citizens. He could take up any job, he could cope with. He could enter any educationalinstitution or engage in any scientific or cultural work on equal footing with other citizens.The constitution prohibited any direct or indirect restriction of the rights of citizens on account of their race or nationality. Any person preaching nationalor racial exclusiveness or advocating hatred and contempt for the members of any particular nation or race was punishable by law. In the words of Karpinsky,"Any violation of the provision in the constitution guaranteeing the equality of all citizens is punishable in our country as a grave political offence."Russian leaders took pride in the racial equality, which they assured to their citizens. They referred to the "Negro Problem" in the U.S.A. -the so-calleddemocracy of the west, and the racial exclusiveness exhibited by the Imperialist democracies, towards the colonial and semicolonial peoples of Asia, Africaand Indonesia.Freedom of ConscienceArticle 52 proclaimed freedom of conscience; separated Church from state and school; gave equal rights of religious celebrations and freedoms of anti-religiouspropaganda to all. In fact the Church and the clergy were deprived of state support. The clergy was not allowed to teach religion in a school. On the otherhand, anti-religious propaganda was encouraged. In fact, the Soviet State considered religion as the opium of the masses. Hence the Soviet Constitutionwas not expected to37give undue importance to religion. The doors of the Communist Party and the government were closed to a person who held religion dear to his heart. Cartercorrectly said "It is impossible for believers to be admitted to the Communist Party or to important positions in the government."7Religion in U.S.S.R. was discouraged; this is due to the fact that the Soviet authorities were keen to promote enlightenment among the popular masses, helpthem to acquire knowledge of sciences and acquaint them with the scientific explanations of the mysteries of nature and human society. In their opinion,all this was possible if a man ceased to be orthodox and fanatic and was free from prejudices and suspicions. Hence, "Religious instruction in school orchurch is prohibited. Religious literature is scanty. The opposition to religion especially among the komsomols is obstinate and contemptuous. Armymenand families hardly dare attend worship..."8In reality, Russian church groaned under the heels of Russian dictators. Performance of rites and singing of hymns did not constitute freedom of conscience.Preaching of social behaviours, embodying the spirit and ethic of the Faith is the fundamental basis of religious freedom. But unfortunately, any suchpreaching was considered heresy in the U.S.S.R.However things underwent a change when Gorbachev became the Secretary General of the Party. He believed in all round openness. He had links with Pope. In1988 Pope sent 10 cardinals to Moscow to attend 1000th anniversary of Russian conversion to Christianity.Political Rights(a) Freedom of speech and expressionArticle 50 of the Constitution guarantees freedom of speech and freedom of press but these freedoms are to be in conformity with the interest of the workingpeople and are to be utilised to strengthen the socialist system. The Soviet leaders claimed that the workers and their organisations had been allowedto make unhindered use of the printing presses, stock of paper for the printing of newspapers and books. Keeping in view the above facts, Karpinsky asserted,"That explains why in the Soviet Union, Civil Liberty is not a mere phrase. It is in actual fact, part and parcel of our life." He maintains, "The Politicaland other rights of the working people are restricted and trampled under foot not only in countries like Spain, Portugal, Greece, Turkey, Brazil and Chilebut also in countries like United States which vaunt their democratic liberties."38What is a legal truth is a political untruth. Freedom of speech and expression was hedged with such restrictions that it stood nullified. The CommunistParty defined the people's interests and explained the socialist system. In other words, the Communist Party decided when voice of the people was to becrushed and on what excuse. Press, radio, cinema and literature were the agencies of the Communist ideology in one way or the other. Pasternek - the famousnovelist whose Dr. Zhivago - a satire on Russian way of life, won him the Nobel Prize for literature, was threatened sentence of exile if he accepted thesaid prize. With heavy heart, the learned novelist had to refuse the prize. The fate of Beria, and that of Molotov, Malenkov and others who differed fromthe ruling clique of the party bore an ample testimony to the fact, that freedom of speech and expression were not only negated but crushed in U.S.S.R.The following words of Vyshinsky in Law of the Soviet State further confirm the above stated facts: "There is and can be no place for freedom of speech,press and so on for the enemies of socialism."9 In fact, anybody who consciously or unconsciously uttered a word against the Communist leaders at the helmof affairs or the policy emanating from these "Sir Oracles" was either in the prisoner's dock or dying a lingering death in the concentration camps orfacing gallows. The courts could hardly come to the rescue of a citizen. Neither the constitution itself nor Soviet legal practice made a provision forjudicial review by the courts of law to determine whether or not a particular action of Soviet authorities was repugnant to the constitution. Obviously,a citizen had no judicial means for the enforcement of rights conferred upon him by the constitution. Schapiro very well portrayed the negation of politicalrights to the Soviet citizens in the words "The innumerable violations of legality - illegal torture, execution and exile -which went on for many yearsunder Stalin and which have been freely admitted and condemned by his successors took place at a time when the present constitution was already in force."10Press which is termed as the 'bible of democracy' was in U.S.S.R. a mere device to transmit the decrees and the decisions of the Government and the partyto the Russian masses and their fellow comrades in other parts of the world. In the words of Dr. Finer, "It is not an instrument to express the opinionof individual publishers or to reflect or mirror public opinion. It is the major social force to be harnessed to facilitate the attainment of the society'sdefined goals." The newspaper's editor was bound to act as the representative of the party itself. He received training either in the editorial departmentof the39institute of literature and languages of the Central Communist Academy in case he fell in the hierarchy of top most editors or the Communist Institute ofJournalists or if he belonged to the lower category of editors. Thus, we can come to the conclusion that 'Freedom of Speech and Expression' were conspicuousby their absence in U.S.S.R.Openness policy of Gorbachev through Glasnost was an attempt to democratise the atmosphere.(b) Freedom to form organisationsArticle 51 of the Constitution specifies "In conformity with the interest of the working people and in order to develop the organisational initiation andpolitical activity of the masses of the people, citizens of the U.S.S.R. are guaranteed the right to unite in public organisations, trade unions, co-operativeyouth organisations, sports and defence organisations, cultural, technical and scientific societies." In the same article, it was emphasised that the mostactive and politically conscious citizens in the ranks of the working class and other sections of the working people constituted the Communist Party -the vanguard of the workers and the leading core of all organisations of the working people both public and private.If we make a critical appraisal of the above article, we conclude that the Russians were not allowed to form any other political organisation except theCommunist Party which was the leading core of all "organisations. The latter referred to non-political organisations. In other words, the trade unionsand cultural clubs etc. were mere subsidiary branches of the Communist Party. The apologists of Communist Ideology like Karpinsky proudly assert, "Almostall workers by hand and brain and almost all peasants in our country belong to public organisations. Tens of millions of people are members of our variousvoluntary societies. Our social and State system ensures all of those societies every possibility of development and prosperity." But the question arises,why no other political organisation was allowed to exist in this country? Why these non-political organisations were mere pawns in the hands of the CommunistParty? We cannot brush aside such a moot question on the plea that there were no antagonistic interests in U.S.S.R., hence no other political party wasrequired or that the Communist Party alone was the embodiment of perfection. So all other organisations must be subservient to it.In fact, Soviet freedom of forming organisations was a mere mockery of democracy. An extract from Pravda, Communist Party's official paper published onJune 22, 1936, confirms the facts, regarding40two preceding rights. It runs as follows: 'The cowardly bourgeois, Menshevists and counter-revolutionary press has been exterminated for ever in our Sovietcountry... Whoever aims at overthrowing the Socialist regime and damaging the Socialist property of the people, is an enemy of the people. He will neverreceive so much as a scrap of paper in the Soviet Union or be able to cross the threshold of a single printing work in pursuit of his ill designs. He willnever find a hall, a room, a corner in which to disseminate his poisonous doctrines." In simple words, freedom of press, expression, and associations existedonly for the adherents of Communism and admirers of Communist philosophy.All this underwent a drastic change with the emergence of concepts of Glosnost and Perestroika in times of Gorbachev but that resulted in disintegrationof Soviet Union end of a political system and fall of a liberal leader, nay an innovator.Personal Freedom and the Inviolability of homesArticles, 54, 55 and 56 of the Brezhnev Constitution guaranteed to the Soviet citizens inviolability of the person and home as well as privacy of correspondence.No one in the Soviet Union could be arrested except by a decision of a Court, or with the sanction of a procurator. Representatives of authorities wereallowed to enter the homes of citizens without their permission only in specified cases. Likewise, the personal correspondence of a citizen could be examinedonly with the permission of a Procurator when such an examination was essential to discover the 'criminal.'The above exceptions to the right make it crystal clear that the said right existed for those who were not suspected as "criminals." Deviations from theparty line made an individual a "political criminal" in the Soviet Union. Deportation, execution, life imprisonment and transportation to "concentrationcamps" was generally the lot of these "suspected criminals". It is thus quite evident that provision of personal freedoms was a myth which stood exploded,when harrowing tales of concentration camps were brought to the fore.Right to AsylumArticle 38 assured "right to asylum" to the foreign citizens persecuted for defending the interests of the working people or for scientific activities orfor struggling for national liberation. In fact Moscow was the haven of notable revolutionaries, who were haunted in their lands for subversive activitieswhich they generally preached and indulged in often dancing to the tune of their comrades in the Soviet Union.41Right to Private PropertyThough right to property did not exist in the Chapter of Rights yet Article 13 of the Constitution made a clear mention about it. It provided that individuals,could run small-scale enterprises based on their personal labour and assured right to personal ownership of income from work and savings, of their dwellinghouses, of household articles and utensils and of articles of personal use and comfort, as well as the right of inheritance of "personal property". Personalproperty embraced income from labour, savings deposited in State Banks or invested in Government Bonds, dwelling houses, motor cars, tools and other personalbelongings. The right of inheritance had also been given.The above-mentioned right reflects that the Russians realised importance of the institution of the private property which is instinctively ingrained inthe human nature and without which an individual cannot have proper incentive to work. Of course, property which enables an individual to exploit othersis bad and is rightly termed as a "theft". Depriving an individual of such a type of property as done in U.S.S.R. was justified.In addition to the above fundamental rights, the citizens of the erstwhile U.S.S.R. also enjoyed the right to vote, right to be elected, right to lodgea complaint, right to compensation for damage caused by unlawful actions of the state, right for protection by the courts, right to lake part in the managementof public affairs and the right to submit proposals to state bodies.Fundamental DutiesAs already said, the Brezhnev Constitution had not only granted rights to the Soviet citizens but had also imposed certain duties upon them. The Sovietleaders opined that rights and duties always went together. They were inseparable. The performance of duties was also considered essential for the preservationand perpetuation of the vital interests of the working people. The duties are enumerated below:(a) To abide by Constitution and Laws of the Soviet Union: The first commandment to the Soviet citizens is to abide by the Constitution and the laws ofSoviet Union and Union Republics faithfully. Since the Soviet Socialist State represents, expresses and defends the interests of the workers, hence theSoviet laws must be obeyed. In the words of Karpinsky, "The interests of the Soviet State, of Soviet society and the interests of the people coincide.They are identical, inseparable." Hence anybody who violated the law of the land, not only struck at the root of the Soviet State or society but also actedprejudicial to his own interests.42(b) To maintain labour discipline: In U.S.S.R. workers were said to be their own master, they worked for their common benefit. Hence they worked to thebest of their ability. They were embodiment of discipline. In fact the Constitution exhorted them to maintain labour discipline. Karpinsky remarks, "Withoutsuch free, conscious discipline, socialist emulation aiming at the fulfilment and over fulfilment of production quotas in the shortest period of the timewould be impossible in our enterprises." The distinguished workers were awarded testimonials, badges, or decorations. "Hero of Socialist Labour" was thehighest reward offered to the best disciplined labourer.(c) Honestly to perform public duties: Soviet citizens were expected to be conscious of their duties to the state and society. Honest compliance with thelaws of the State, fulfilment of the accepted standards of outputs, placing the interest of the public above his own personal interests, making an effortfor general increase in labour productivity and combating whatever is antagonistic to the socialist society were some of the most important public duties,he must perform conscientiously.(d) To respect rules of Socialist Intercourse: The rules of Socialist intercourse which governed the conduct of the Soviet citizens in respect of socialistsociety or towards each other were laid down in the Soviet Constitution. These rules comprised the duty to work, the prohibition of one man to exploitanother, the inviolability of public socialist property, etc. The violation of these rules amounted to a crime against the State and the society.(e) Safeguarding Public Socialist Property: Article 61 of the Constitution specifies: "It is the duty of every citizen of the U.S.S.R. to safeguard andfortify public socialist property as the sacred and inviolable foundation of the Soviet system, as the source of wealth and might of the country, as thesource of the property and culture of all the working people." Moreover, persons committing offences against public socialist property were to be deemedas the enemies of the people. Since, the national welfare and might of the U.S.S.R. depended upon the proper protection of the Socialist Property henceit was to be the duty of every Soviet citizen to safeguard the socialist property.(f) Universal Military Service: Universal Military Service was considered as an honourable duty of Soviet citizens. In the words of Karpinsky, "And indeedwhat duty can be more honourable than to defend with arms in hand our great Soviet country, the first Socialist State of workers and peasants in the world,the hope, the bulwark of toiling humanity."43Universal military service law was adopted on September 1, 1939. All male Soviet citizens without distinction of nationality, race, religion, education,social origin and status must serve in the armed forces of the Soviet Union. Even women who had received medical, veterinarian or special technical trainingcould be enrolled and called up for auxiliary and special service during war time. The period of active service was fixed at two to four years. Those whocompleted their active service were placed in the reserve until they reached the age of fifty.(g) Defence of the Country: Article 62 clearly specified that to defend the country is a sacred duty of every citizen of the U.S.S.R. It implied that everySoviet citizen must get military training and be prepared for meeting any eventuality during war. Treason to the Fatherland was the gravest crime in U.S.S.R.The violation of oath of allegiance, desertion from the army, impairing the military power of the State and espionage constituted "treason". Capital punishmentwhich was abolished on May 25, 1947, was reintroduced on January 13, 1950 for punishing the traitors, spies and wreckers.Evaluation of Fundamental Rights in the U.S.S.R.While the Brezhnev Constitution contained an impressive list of fundamental rights not even guaranteed by the constitutions of democratic countries, theRussian citizens hardly enjoyed these rights. All the rights existed not to promote the development of the people but to protect the interests of the CommunistParty. The citizens were not free in the enjoyment of their rights. The party defined the interests of the people and the way rights could be enjoyed.The constitutional prohibition to form any other political party, save the Communist Party made a mockery of the political rights. The absence of judicialreview deprived the citizens of any effective remedy against the States, arbitrary acts. However, the Brezhnev Constitution adopted a liberal view in comparisonto the Stalin Constitution.Gorbachev during his tenure as General Secretary of the Party led the country to democracy through new concepts. However U.S.S.R. came to an end and Gorbachevceased to be the leader.References1. Vyshinsky, A.V. Law of the Soviet State, p. 559.2. Schapiro Leonard, The Government and Politics of the Soviet Union, p. 96.3. Karpinsky, V., The Social State Structure of U.S.S.R., p. 161.4. Finer, Herman, The Governments of Greater European Powers, p. 832.445. Finer Herman, The Governments of Greater European Powers, p. 832.6. Karpinsky, V., The Social and State Structure of U.S.S.R., p. 163.7. Carter, G.M. and others, The Government of the Soviet Union, p. 25.8. Finer Herman, The Governments of Greater Powers, p. 836.9. Hindustan Times dated March 7, 1992 p. 14 (Pope's) "I have no difficulty in acknowledging that in his speeches there were many ideas in which we agreed...I appreciate the spiritual content of the Popes' thinking, the effort to contribute to the growth of a new civilisation in the world. -Gorbachev10. Schapiro L., The Government and Politics of the Soviet Union, p. 99.455 THE CENTRAL GOVERNMENT OF THE SOVIET UNION"For the first time something akin to the Supremacy of Parliament theory is asserted for a Soviet organ - the Supreme Soviet..."—Towster JulianThe Federal Legislature - The Supreme SovietThe Brezhnev Constitution provided for Supreme Soviet (Supreme Council) which was regarded as the "highest organ of State power" till 1988 amendments andalso 'The exclusive exerciser of State power" in the Union. In the words of Towster Julian, "for the first time something akin to the Supremacy of Parliamenttheory is asserted for a Soviet organ, the Supreme Soviet, since it is regarded as the embodiment of all authority - legislative, executive and judicialand it is at the same time, declared to be the sole and exclusive legislative organ, the laws of which constitute the source of authority and directionfor the activity of other Soviet organ."1Its Composition and Organisation (Before 1988 amendments)2Like other Federations of the world, Bicameral principle was adopted by the Fathers of the Russian Constitution. The Supreme Soviet consisted of two Chambers- Soviet of the Union and the Soviet of the Nationalities.The Soviet of UnionIt was supposed to be a representative chamber of the Soviet people. It represented the nation as a whole. The Brezhnev Constitution had not fixed its totalmembership. Article 110 only mentioned that the Soviet of the Union and the Soviet of Nationalities shall have equal number of deputies. Whereas, the StalinConstitution provided one representative for every 300,000 of the population, the Brezhnev Constitution did not46make any such provision. It only stated that the Soviet of the Union shall be elected by constituencies with equal populations. All the citizens of theU.S.S.R., who attained the age of eighteen were entitled to vote. Any Soviet citizen 21 years of age could contest the election. Even the public servantscould contest the election. Article 104 provided that Deputies shall exercise their powers without discontinuing their regular employment or duties andthey shall be released from their regular employment or duties, with retention of their average earnings at their permanent place of work. The compositionof the chamber was claimed to be the most democratic by the Russians, as all sections of people-workers, tillers, intellectuals, army personnel, both menand women of all ages found a place in it.The Soviet of NationalitiesIt was the only chamber in the world elected on the basis of areas and nationalities. In Soviet Union there were 15 Union Republics, 20 Autonomous Republics,8 Autonomous Regions and 10 National Areas. It represented the national group on the basis of 32 deputies from each Union Republic, 11 deputies from eachAutonomous Republic, 5 deputies from each Autonomous Region, and one deputy from each National Area. The House consisted of 750 members. The members remainedalmost static. The members of the House also were directly elected by the people and were drawn from all types of people, constituting the population ofthe U.S.S.R. Keeping in view the social composition of both the chambers of the Supreme Soviet, Carter said, "In this sense, the Supreme Soviet is an impressivesymbol of social and national equality."3However the Composition, the functions and its role underwent a drastic change after 1988 amendments.4TenureUnder the Stalin Constitution, the tenure of both the chambers of the Supreme Soviet was four years, but the Brezhnev Constitution had made it five years.It may also be stated that the Stalin Constitution provided for dissolution of both the Houses even before the expiry of their tenure, but the BrezhnevConstitution did not contain any provision for dissolution which meant that both the Houses would last for the full term of five years. The election ofthe new Supreme Soviet must take place not later than two months after the dissolution and the new Supreme Soviet must be convened not later than threemonths after its election.47Sessions of the Supreme SovietThe Constitution provided for two regular sessions of the Supreme Soviet each year. The sessions of the Supreme Soviet were extremely short. The averageduration of these chambers had been five days, though the longest session lasted for twelve days and the shortest for only three days. British, Frenchand American Legislatures in contrast sit for about 200 days a year. Both the Houses held sessions simultaneously. The presidium of the Supreme Sovietwas authorised to convene the sessions. An extra-ordinary session of the Supreme Soviet could also be convened by the Presidium on its own initiative oras demanded by one of the Union Republics.5A joint session of the two chambers could also take place for electing the Presidium, the Council of Ministers, the judges of the Supreme Court and theSpecial Courts, and the Procurator General of the U.S.S.R. Joint sessions were to be held for hearing the reports of different Commissions of the SupremeSoviet as well.Privileges Enjoyed by the MembersThe members of the Houses enjoyed certain privileges enumerated below:(a) They enjoyed free travel over rail and water routes throughout the U.S.S.R.(b) They got 1,000 roubles a month and 150 roubles daily allowances while attending sessions.(c) During the sessions, they got the best hostel accommodation and the best seats at the theatre and opera.(d) They could not be arrested or prosecuted without the permission of the Supreme Soviet during sessions of the Presidium when it was not meeting.(e) They were entitled to ask questions from the ministers, to seek any information concerning the administration. The ministers concerned were expectedto give answer, written or unwritten within 3 days.(f) They could express their opinions in the House freely. (g) They were entitled to retain their average earnings at their permanent place of work.Their ResponsibilitiesThe duties of the deputies of the chambers were equally important and quite exacting.(a) They were expected to maintain a close and constant touch with the electors of their constituency through correspondence, by paying a48visit to the factories and farms by receiving petitions at home and initiating action in local or central institutions for the solution of problems broughtto their attention by the electors of their respective constituencies.(b) They must report back to their constituents on the proceedings of the Supreme Soviet and on the part played by them therein.(c) They had to retain the confidence of their electorates throughout the period of their tenure as deputies. The electorates possessed the right to recallthe members of the Soviet Union, in case they found that the deputy's work was unsatisfactory. In the words of Towster Julian, the deputy is a "servantof the people, its messenger in the Supreme Soviet." Vyshinsky says "A deputy of the Supreme Soviet is no professional politician or legislator. He isa person connected with socialist bloc of Communists and non-party members, a man of lively experience and work, a champion of Socialism. He does not fumewith glittering speeches but strives as a deputy to put all his constructive experience into the creation of laws bound to assure socialism's further strengtheningand development."6Equality of Status of Both the HousesUnlike that of the U.K. and India where lower chambers enjoy superiority over the upper chambers, both the chambers of the Supreme Soviet of U.S.S.R. hadequal and coordinate powers. All Bills including the Money Bills could be initiated in either chamber and enter the Statute Book, only when passed by boththe Houses. In case of disagreement between the two Houses on any issue, a Conciliation Committee consisting of equal representatives from both the Houseswas appointed to resolve the differences. In case the efforts of the Conciliation Committee proved futile, the matter used to be referred back to the Housesfor reconsideration, in a joint session. If the agreement was not reached, again the matter was postponed for debate in the next session of the SupremeSoviet of the U.S.S.R. or submitted by the Supreme Soviet to a nationwide vote (Referendum). It may be mentioned that under the Stalin Constitution, thePresidium was empowered to dissolve the chamber in case the differences were not resolved and order a fresh election.Procedure in the HousesBoth the Houses met separately even for the first meeting of the session. After an address by one of the senior members, each House elected a chairman andfour vice-chairmen. Each House then proceeded to adopt the agenda and time table and select the Commissioners corresponding49to the committees in other chambers of the world. In the next meeting, the chambers in a joint meeting heard the budget report. Joint Session of the Houseswas presided over alternately by the chairmen of the two Houses. Then the Houses met separately to discuss the budget proposals. Criticism on the budgetwas of a formal type. Generally, the budget speech of the Finance Minister was followed by a unanimous vote on the budget, by both the Houses. The decreesissued by the Presidium during the recess of the Supreme Soviet was placed by the Presidium before each House for its approval which was accorded unanimously.Likewise, ordinary Bills were passed unanimously without debate.Credentials and Other Commissions of the Supreme SovietAt the commencement of every new session, each House elected the "Credentials Commission" which scrutinised the election of its deputies. The other importantcommissions were the Budget Commission, the Legislation Commission and the Foreign Affairs Commission.Procedure of LegislationAlthough every member of the Supreme Soviet was entitled to move Bills, in practice this was done by the Council of Ministers. After initiation, a Billwas either referred to the appropriate commission or was taken up for consideration by the House directly. In the course of discussions, deputies couldpropose amendments. At the end of the debate, the minister-incharge of the Bill announced which of the proposed amendments was acceptable to the government.The Bill was then modified accordingly and passed by the Houses individually. It may be pointed out that the number of ordinances issued by the Councilof Ministers and the decrees issued by the Presidium were far larger than the number of laws passed by the Supreme Soviet.Power of the Supreme SovietThe Supreme Soviet was the highest organ of the State power before 1988 and the exclusive legislative authority of the U.S.S.R. The powers of the SupremeSoviet were not confined to the legislative sphere alone. They were of the varied nature as under.(a) Legislative: The Supreme Soviet possessed the exclusive right to pass all Union laws. No other organ of the state had this right. AH Union laws werebinding force in all Union Republics. All public authorities, institutions, organisations, officials and private citizens must execute them. They werepublished in the languages of all Union50Republics over the signatures of the Chairman and Secretary of the Presidium of the U.S.S.R. The subjects on which the Supreme Soviet could make laws includequestions of war and peace, confirmation of alteration of boundaries between union republics, defence, foreign trade, security of the state, national economicplanning, banking and currency, transport and communications, monetary and credit system, labour legislation, judicial procedure, citizenship and foreignrelations. It may however be pointed out that none was vested with veto powers in the U.S.S.R., firstly, because the Supreme Soviet was the highest organof the U.S.S.R.; secondly, because the Supreme Soviet passed those Bills which were referred to it by the Communist Party - an architect of the SovietGovernment. The Presidium of the Supreme Soviet either on its own initiative or as demanded by one of the Union Republics could ask for referendum on anyBill. But no Bill passed by the Supreme Soviet had ever been referred to the people's vote.(b) Budgetary: The Supreme Soviet adopted a consolidated State Budget for the whole country and exercised full control over its enforcement. It controlledand granted loans. It determined the revenues and the taxes which went to the Union, the Republican and the local Budgets. It possessed the constitutionalrights of determining national economic plans.(c) Constitution Amending power: The Supreme Soviet of the U.S.S.R. alone exercised the right of amending the constitution and ensuring conformity of theconstitutions of the Union Republics with the constitution of the U.S.S.R.(d) Power to Admit New Republics: It alone possessed the right to admit new Republics to the Soviet Union and confirm alterations of boundaries betweenUnion Republics and the formation of new Autonomous Republics and new territories and regions.(e) Electoral Functions: Both the Houses of the Supreme Soviet in a joint session were empowered to elect the Presidium of the U.S.S.R., the Council ofMinisters, Judges of the Supreme Court and the Special Courts, and the Procurator General.(f) Control Over High State Organs: The Supreme Soviet exercised control over the Council of Ministers - the highest Executive in the country and the Presidium- the Collegiate President of U.S.S.R. The Russians profess that like other Parliamentary governments, the Soviet Executive was responsible and accountableto the Supreme Soviet.(g) Power to appoint Investigating and Auditing Commissions: The Supreme Soviet was authorised to appoint Investigating and Auditing51Commissions on any question. The officials and the institutions of the U.S.S.R. were duty bound to comply with the demands of such Commissioners and furnishthem all relevant material and documents.(h) Executive Powers: It was empowered to decide questions regarding relations of the U.S.S.R. with foreign countries and also questions of war and peace.It ratified treaties with foreign States. It organised the country's defence and directed armed forces of the Soviet Union. It determined principles governingthe organisation of military formation in the Union Republics.(i) A forum of discussion: It was supposed to be a forum of discussion and criticism. The Russians claimed that the Supreme Soviet was the chief deliberativebody where the deputies hailing from the remote corners of the country met and discussed the important problems confronting the country and baffling thegovernment. They criticised the government and took it to task if it had gone off the rails. But in reality it was a tall claim. In the absence of an oppositionparty what opposition could be expected against the government? The non-party members of the Communist Party could not have the courage to criticise theministers who were the favourites of the Politbureau of the party and always ran the errands of the party itself. "The Dictatorship of the Proletariat"which was established in the U.S.S.R. after the October Revolution and which persisted did not allow criticism against 'Party line.' The Executive toedthe Party line. Hence the policy emanating from the Minister which in reality meant that of the politbureau, the top most body of the Party, could notbe criticised by the Supreme Soviet. Of course, criticism on executions of the policy could be launched in the House.(j) As a Source of Education and Inspiration: In the words of Carter, "One of the obvious purposes of the meetings of Supreme Soviet is to inspire the delegatesand to educate both, them and their constitutions."7 The Supreme Soviet proved to be an excellent forum from which the Soviet leaders addressed not onlythe delegates, but the entire country. The Press and the radio gave wide publicity to these speeches, with the result that the entire nation got familiarwith the purpose and plans of the government. Moreover, the deputies hailing from the far flung areas of the country got inspired while listening to thetop most leaders of the party and carried the message of socialism and tremendous progress made by the U.S.S.R. during the year, to the Russian masses.Thus the people got acquainted with the economic prosperity and marked progress made by the country under the52"Dictatorship of the Proletariat." In the words of Carter, "Education in this sense, of course, is very different from the education at which Parliamentsaim. It is like Her Majesty's gracious speech in Great Britain - with the discussions and debate cut off.... Rather it is a set of authoritative pronouncementswhich aim at publicising the details of programme to which all citizens are expected to give joyful and unanimous support."8Actual Role of the Supreme Soviet (Reality of the Powers)Keeping in view the above mentioned powers of the Supreme Soviet before 1988 one carries an impression that the Supreme Soviet surpassed its counter-partsin the Western democracies. Even Blackstone's account of absoluteness of the British Parliament seemed paling into insignificance. But what was legal truthwas a political untruth. In the words of Dr. Finer, "The Russian Supreme Soviet has a wider scope of authority and a deeper and more ratifying power thanany legislative body on earth. It is vaunted as such by Soviet statesman. What is the reality."9 In reality there was big divergence between theory andpractice, in the Soviet Constitution.It was supposed to be an exclusive legislative authority, though it met twice a year and that too for a very brief period. How could it afford to cope withhuge legislation which was necessitated in a Socialistic State controlling all the state enterprises in such a short duration? Moreover, legislation inthe modern times is highly technical and requires great parliamentary skill but the deputies hailing from the distant areas of the Soviet Union lackedthe parliamentary skill and were not aware of these technicalities. They were not professional legislators; hence they could not make substantial contributioneven if discussions were to be allowed in the Supreme Soviet. Herman Finer rightly remarked, "The Supreme Soviet has no function beyond the unanimous acceptanceof the work of the Presidium and the Council of Ministers (to listen to their spokesmen, to prefer some perfunctory remarks about the laws submitted andto burst into rounds of ringing applause. What more can be expected of their industry in five days."10 In fact, the Supreme Soviet was a mere "yes men"body. It was meant for endorsing the decisions of the Council of Ministers who themselves were the boy errands of the Communist Party. It had no hand indetermining the policy of the Government. Neumann correctly said, "It is impossible to accept the view that the Supreme Soviet is in fact the highest organof the State Power." On very infrequent occasions issues were debated on the floor of the chambers. In the debates, the deputies53must speak for the policy contained in the measure, before the House. Thus the very purpose of the debates stood defeated. The requisite legislation, infact, appeared in the form of "decrees" of the Presidium or the "decisions" and the "orders" emanating from the joint action of the Central Committee ofthe Communist Party and the Council of Ministers. Though these decrees, decisions and orders were subject to confirmation by the Supreme Soviet, yet thelatter had never withheld it. It could not afford to do so, because the Presidium or the Council of Ministers always acted as the spokesman of the Politbureauof the Communist Party and the Supreme Soviet as its propagating body.Its control over the executive also was a mere formality. The Supreme Soviet had never passed a vote of no-confidence against the Council of Ministers.Individual Ministers were ousted by the Supreme Soviet when the Presidium of the Communist Party, now termed Politbureau, directed it to do so. It couldnot criticise their policies. Criticism could be launched by the Supreme Soviet only against the executors of policy.Its power of amending the Constitution, admitting the new Republics, electing important functionaries like judges, ministers, etc., or exercising executivefunctions existed only on the paper. The Politbureau of the Communist Party acted from behind the scene. The Supreme Soviet merely rubber stamped its decisionsin all the above mentioned matters. In the words of Towster Julian, "The Supreme Soviet has so far operated primarily as a ratifying and propagating body.Its chief purpose appears to be periodically or as occasion demands, to lend the voice of approval of a representative body to government policy."11 Schapirowas also of the same view. In his words, "The Supreme Soviet is therefore, at most a confirming body and can play little, if any, part as a sounding boardfor opinion in the country."The real and perhaps the only utility of the Supreme Soviet lay in the fact that it educated and inspired the Soviet citizens through its deputies who carriedthe message of socialism and the marked achievements of the socialistic order to their respective constituents. Moreover, the deputies coming from thevarious widely diversified sections of the country could intimate the ministers - the prominent members of the Party in the Supreme Soviet, the pointsof view of their constituents. The ministers were likely to modify some of their proposals in the light of such points of view which they might not haveknown so far. Ogg and Zink very nicely summed up the actual role of the Supreme Soviet in the following words, "In the Western sense, the54Supreme Council of the U.S.S.R. may not be a truly deliberative body -certainly it does not conform to the pattern of Western legislative bodies - but itshould not be assumed that it does not exercise at least a reasonable amount of influence in the public affairs of the Soviet Union."12The Presidium (before 1988 Amendments)13The Presidium of the Supreme Soviet was aptly described as the "20th century innovation." Constitutionally speaking, it was a standing committee of theSupreme Soviet. But as already said in the erstwhile U.S.S.R. legal truth was a political untruth. Its powers were so numerous and so imposing that ithad surpassed not only the standing committees of the various legislatures of the world but even eclipsed the Supreme Soviet - the highest organ of theState and the Council of Ministers—the highest executive organ of the U.S.S.R. In fact, it was a unique body vested with both the legislative and the executivepowers. Hence it was something of both. Not only that, the Constitution made it a final interpreter of the "Constitution" itself. Thus the most importantfunction of the Supreme Court also was assigned to it.Its Composition and OrganisationIt consisted of one Chairman, First Vice-Chairman, 15 Vice-Chairmen, one Secretary and 21 members. Thus its total strength was 39. The fifteen Vice-Chairmenwere usually the fifteen chairmen of the Presidium of the Supreme Soviets of Union Republics. The twenty members of the Presidium included some of thehigh party dignitaries who did not enjoy any other high state office. All of them were elected by the Supreme Soviet in a joint session from among itsDeputies. The Presidium was accountable to the Supreme Soviet for all its activities.Its normal tenure was five years. The outgoing Presidium remained in office until the newly elected Supreme Soviet elected a new Presidium. According toArticle 124, on the expiration of the term of the Supreme Soviet, the outgoing Presidium remained in power until the newly elected Supreme Soviet constituteda new Presidium. Article 90 specified that on the expiration of the term of office of the Supreme Soviet, the Presidium ordered new elections to be heldnot exceeding two months and the newly elected Supreme Soviet was to be convened by the outgoing Presidium not later than three months after the election.Chairman of the PresidiumThough the Presidium itself was termed as the "Collegiate President" of the U.S.S.R., yet the chairman of the Presidium was known as the55formal head of the State since he performed certain ceremonial functions which the Head of the State alone, was expected to perform. As such, he was notequipped with any special authority. He was first among equals like the President of the Swiss Republic. He occupied a nominal position. In the words ofCarter, "His post is one of much ceremonial importance and very little power as in the case of his foreign counterparts, his most important function isto mix with the ordinary citizens as a living human symbol of the paternal concern of the government for their welfare."14His functions(a) The laws passed by the Supreme Soviet are promulgated under his signatures.(b) He signed the decrees of the Presidium. (c) He received foreign envoys and ministers.(d) He exchanged messages with other heads of State "as an equal among equals."He discharged the above functions on behalf of the Presidium, since for all practical purpose, the Presidium functioned as the "Collegiate President", ofthe U.S.S.R. Herman Finer described him "Kindly non-entity."Powers and Functions of the PresidiumAs already said in the introductory remarks the Presidium was a body of heterogeneous character possessing legislative, executive and judicial powers enumeratedbelow.Legislative Functions(a) It convened sessions of the Supreme Soviet twice annually. It convened the first session of the newly elected Assembly as well.(b) It could order new elections within two months of the expiration of Supreme Soviet's term.(c) It issued decrees during the recess of the Supreme Soviet. The decrees issued by the Presidium had the same binding force as laws. They must howeverbe based on the Ail-Union Laws. They were subject to approval by the Supreme Soviet, which was just a formality.(d) All the measures passed by the Supreme Soviet were promulgated and published in all languages under the signatures of the Chairman and the Secretaryof the Presidium.56(e) Though the Presidium did not possess veto power over the Legislation unlike that of some other Executive heads yet it was fully empowered to submitany proposed measure to popular vote either on its own initiative or upon the demand of one of the Union Republics. It may, however, be said that no referendumhad been held on any measure.Executive Functions(a) It appointed and removed ministers of the U.S.S.R. on the recommendation of the Chairman of the Council of Ministers subject to subsequent confirmationof the Supreme Soviet.(b) The Ministers were accountable to the Presidium during the intervals between the sessions of the Supreme Soviet.(c) It could institute and reorganise ministries and administrative agencies and alter their jurisdictions by means of decrees. This power had been veryfrequently exercised by the Presidium.(d) It represented the Soviet Union in its relations with foreign slates.(e) It ratified and denounced treaties with other countries .(f) It appointed and recalled plenipotentiary representatives of the Soviet Union to foreign states and received the credentials and letters of recall ofdiplomats accredited to the U.S.S.R. by foreign stales.(g) It instituted and awarded decorations and titles of honours, military titles and other special titles.(h) In the intervals between sessions of the Supreme Soviet of the U.S.S.R., it proclaimed a slate of war in the event of military attack on the U.S.S.R.or when necessary to fulfil international treaty obligations concerning mutual defence against aggression. When Fascist Germany launched predatory attackagainst the Soviet Union, the Presidium issued four decrees to withstand the onslaught.(i) It could order total or partial mobilisation and proclaim martial law in separate localities or throughout the U.S.S.R.(j) It had the power of exercising pardon.Judicial PowersThe Presidium possessed judicial functions as well.(a) It interpreted all Union laws, explained their purpose, the duties they imposed and the methods of properly applying their provisions. In other countrieslike India and the U.S.A., the57power of interpreting the Constitution is vested with the highest tribunals.(b) It could annul the orders of the Council of Ministers of the U.S.S.R. and of the Council of Ministers of the Union Republics, if in its opinion, theydid not conform to law.Actual Role of the PresidiumA critical analysis of the Presidium referred to above makes us conclude that the Presidium was "the continuous government of the Soviet Union in fact aswell as in law." It eclipsed the Supreme Soviet - the so-called exclusive legislative authority of the Soviet Union. Since the Supreme Soviet met twicea year for a very brief spell of time, hence it was practically impossible for it to cope with huge legislation necessitated in a Socialist State. ThePresidium filled up the void since it was constantly in session. Its decrees had the same binding force as the laws possessed by the Supreme Soviet. Subsequentconfirmation of these degrees by the Supreme Soviet was a mere formality. In fact, it was a foregone conclusion. Ogg and Zink very correctly said, "Therecord shows that the Presidium has taken a more active role in handling the work of Government than its parent body, the Supreme Council."15 The Presidiumby means of decrees altered the boundaries of the constituent units of the U.S.S.R., admitted new Republics in the U.S.S.R., raised the age prescribedfor members of the Supreme Soviet from 18 to 23 years, created new ministries and suspended elections of the Supreme Soviet.Its executive powers also were not less imposing. In fact, it had encroached upon the domain of the Council of Ministers - the Chief Executive body of theSoviet Union which was responsible for its action to the Presidium during intervals of Supreme Soviet. Herman Finer has very well described its plenitudeof authority in the following words: "It seems to hold a kind of cabinet or policy making, directing, co-ordinating and initiating position above the Councilof Ministers, yet to be removed from the actual day-to-day departmental executive responsibilities. It is at once a continuing substitute for the SupremeSoviet, a higher level executive than the Council of Ministers and a supervisor of ministerial every day activities employing the disciplinary and correctivepower that accompanies the power to quash decisions and orders and to oust Ministers."16 In fact, the executive powers vested with the Presidium in theU.S.S.R., were the monopoly of the Heads of the States in the other democratic countries of the world. It was correctly described by Finer as the supercabinet, exercising policy58making, co-ordinating and supervisory powers over the Council of Ministers.Apart from its control over legislation and monopoly of executive powers, it acted as the final interpreter of the Constitution like the Supreme Courtsof the U.S.A. and India.Its vast array of powers should not, however, make us conclude that the Presidium was the master of the whole show in the Soviet Union. It was the Politbureauof the Communist Party which pulled the strings from behind the scene. In the words of Carter, "the Presidium like the Supreme Soviet is clearly subordinateto the ruling power of the Party. Most of the important matters are canvassed and decided by the party leaders constituting the Politbureau of the Party.It is they who exercise the real authority in the conduct of foreign relations and national defence policies.17 Thus Presidium's job was "rather, moreor less perfunctory one, involving routine matters and formalities incident to carrying out policies already determined by the Communist Party."18 Onecould not however minimise the importance of the routine work involved in a police state like U.S.S.R. This routine work was handled to an important degreeby the Presidium.References1. Julian Towster. Political Power in the U.S.S.R., p. 251.2. See its composition powers and role after 1988 in the last chapter.3. Carter, G.M. and Others: The Government of the Soviet Union, p. 100.4. See last chapter.5. See last chapter.6. Julian Towster: Political Power in the U.S.S.R., p. 552.7. Carter, G.M. and others: The Government of the Soviet States, p. 98.8. Ibid, p.98.9. Finer Herman: The Governments of Greater European powers, p. 798.10. Ibid, p. 799.11. Julian Towster: Political Power in U.S.S.R., p. 263.12. Ogg and Zink: Modern Foreign Governments, p. 860.13. See last chapter for Presidium after 1988.14. Carter G.M.: The Government of the Soviet Union, p. 119.15. Ogg and Zink: Modern Foreign Governments, p. 861.16. Finer, Herman: Governments of Greater European Powers, p. 804.17. Carter, G.M. and others: The Government of the Soviet Union.18. Ogg and Zink: Modern Foreign Governments, p. 861.596 THE COUNCIL OF MINISTERS"The Chairman of the Council of the Ministers is the linchpin of the whole party system..." —SchapiroThe Council of Ministers of the U.S.S.R. until March 1946, termed as Council of People's Commissars was another permanently functioning higher organ ofslate power of the U.S.S.R. According to article 128 of the Soviet Constitution, the Council of Ministers was the highest executive and administrativeorgan.Appointment of the Council of MinistersThe Council of Ministers was elected by the two Houses of the Supreme Soviet in a joint session and was in theory responsible to it. During the recess ofthe Supreme Soviet, if some vacancy occurred, it was filled up by the Presidium on the recommendation of the Chairman of the Council of Ministers. On theadvice of the Prime Minister, the Presidium could relieve the Ministers from their posts, abolish or create portfolios and reshuffle the portfolios amongthe ministers when the Supreme Soviet was not in session; of course all these actions of the Presidium were subject to ratification by the Supreme Sovietwhich was just a formality. Though the constitution had not prescribed its tenure yet in actual practice, it was slightly longer than that of the SupremeSoviet position and OrganisationArticle 129 dealt with the composition of the Council. It consisted of a Chairman, five first Vice-Chairmen, eight Vice-Chairmen, the Chairmen of the StatePlanning Commission, the Soviet Control Commission, the State Labour and Wages Committee, the State Committee on Science and Technology, the State Committeeon60Constitution and the State Security Committee, the Chairman of the Administrative Board of Soviet State Bank, the Chief of the Central Statistical Administrationand other ministers of the U.S.S.R. The Council had always been a large and extremely unwieldy body. At present it consisted of over 100 members. However,its number had been varying from time to time.Presidium of the Council of MinistersSince the Council was a huge and unwieldy body, it was not capable of functioning as policy-making body. Hence Article 132 provided for a Presidium of theCouncil Ministers. It had to consist of the Chairman, First-Vice-Chairmen whose numbers not defined, Vice-Chairmen of the Council of ministers, Ministersof the Soviet Union, Chairman of several committees and Boards of Council of Ministers. It was a standing body of the Council of Ministers to deal withquestions relating to guidance of the economy and with other matters of state administration.Chairman of the CouncilThe Chairman of the Council of Ministers held "the most important position on the Council and one of the most crucial in the Soviet Polity as a whole."1Lenin, Rykove, Molotov, Stalin, Malenkov, Bulganin and N.V, Khrushchev, Kosygin were the holders of the exalted position. The chairmanship of the Councilof Ministers was never analogous to the Prime-Ministership in other parliamentary democracies in actual fact, till of course the Chairman held the covetedpivotal post of the Secretary of the Communist Party as well. Lenin, Stalin and Khrushchev held both the offices simultaneously; hence they could dominatethe Russian polity like huge colossus.In the words of Schapiro, "The Chairman of the Council of Ministers is usually the linchpin of the whole party system because it now appears more usualthan not for the office to be combined with the highest Party office that of first secretary."2Functions of the Chairman(a) The Chairman presided over the meetings of the Council and signed its decisions, ordinances and other formal acts.(b) He guided the work of the Council and could suspend the orders of individual ministers.(c) On his recommendation, the Presidium filled the vacancies arising in the Council of Ministers, when the Supreme Soviet was not in session.61(e) On his recommendation, the Presidium could create, reshuffle and abolish portfolios to be assigned to the individual ministers.(f) He dealt with the Heads of the Governments of other countries of the world, as representative of the Government.(g) As a chairman of the Council of Ministers, he could be associated with all those functions which were to be performed by the Council of Ministers ofU.S.S.R.Powers of Council of MinistersFollowing were the powers of the Council of Ministers of U.S.S.R.(a) It issued decisions and orders on the basis of and in pursuance to the laws in operation and verified their execution. These decisions and orders werebinding throughout the territory of the U.S.S.R. (b) It coordinated and directed the work of All Union and Union Republican ministries of the U.S.S.R. and of other institutions under its jurisdiction.(c) It adopted measures to carry out the national economic plan and the State Budget and to strengthen the credit and monetary system of the U.S.S.R.(d) It took requisite steps for the maintenance of public order for the protection of the interests of the State and for the safeguarding of the rightsof citizens.(e) It exercised general direction in the sphere of relations with foreign States.(f) It set up whenever necessary, special Committees and Central Administration under the Council of Ministers of the U.S.S.R. for economic and culturalaffairs and defence.(g) It fixed up annual contingent of citizens to be called for military service.(h) It had the right in respect to those branches of administration and economy which came within the central jurisdiction, to suspend decisions and ordersof the Council of Ministers of the Union Republic and to annul orders and instructions of the Ministers of the U.S.S.R.Keeping in view the above mentioned powers, Karpinsky said "Thus the Council of Ministers of the U.S.S.R. is the highest executive and administrative organsof state power of the Soviet Union."3Types of MinistriesThere were two types of Ministries in the U.S.S.R. - All Union Ministries and Union Republican Ministries.62(i) The All Union Ministries: 'The All Union Ministries directed the branches of the national economy which were of All Union importance and required thatthey be administered from a single All-union centre." There were thirty "All Union" Ministries. Their jurisdiction extended over the entire country. Theyoperated either directly or through agencies appointed by them. Following were some of the important All-Union Ministries:(a) The Ministry of Aircraft Industry. (b) The Ministry of the Automobile and Tractor Industry. (c) The Ministry of Foreign Trade. (d) The Ministry of Navy.(e) The Ministry of Munitions. (f) The Ministry of the Oil Industry. (g) The Ministry of Labour Reserves. (h) The Ministry of Power Stations etc., etc.The trend in the past few years had been towards the reduction in the number of All-Union Ministries. Some of them had become Union Republican Ministries.(ii) The Union Republican Ministries: In the words of Karpinsky, "The Union-Republican Ministries of the U.S.S.R. direct the branches of the National economyand state administration of all Union importance which can be managed and which it is advisable to manage, from the Centre through corresponding "UnionRepublican Ministries of the various Union Republican."4 There were 21 Union Republican Ministries. Some of the important Union Republican Ministries wereenumerated below:(a) The Ministries of Internal Affairs. (b) The Ministry of War. (c) The Ministry of Higher Education. (d) The Ministry of Public Health. (e) The Ministryof Foreign Affairs. (f) The Ministry of Finance. (g) The Ministry of Justice. (h) The Ministry of Trade. (i) The Ministry of Forestry, etc., etc.Apart from the above mentioned two types of Ministries, there were some Administrative Committees and Advisory Bodies such as the State Planning Committee.They were closely associated with the Council of Ministers.Distinction between the two types of Ministries(a) The All Union Ministries directed their affairs throughout the entire territories of the Soviet Union, assisted by their own agents while the UnionRepublican Ministries operated through the corresponding Ministries of the Union Republic.(b) All Union Ministry was responsible only to the Central government. The counterpart Union Republican Ministries in the Republics on the other hand wereresponsible to the Council of Ministers and legislative organs of the Republic concerned as63well as to the corresponding Union Republican Ministries at the Centre. Dr. Munro very well described the distinction between the two types of ministriesin the U.S.S.R. in the following words: "Administration is centralised in Moscow in the case of all Union Ministries. On the other hand, in the case ofUnion Republican Ministries, control of administrative work is centralised but the performance of it is to a considerable extent decentralised."Was there a Cabinet in U.S.S.R.?Before we make an analytical appraisal of the question we are expected to know what a Cabinet form of government is and what its salient features are. What is a Cabinet type of Government?In clear terms, if the Executive and the Legislatures are unified and co-ordinated under the control of the same persons, so that they must work in harmonywith each other, such a system of Government is termed as Parliamentary or Cabinet form of Government. Bagehot defines the Cabinet as a "hyphen that joinsthe buckle that binds the Executive and the Legislative departments together." Prof. Dicey also opines that the Cabinet system is founded on a fusion ofthe executive and legislative powers and at the same time, upon the maintenance of harmonious relations between them.Its Salient FeaturesThe first pre-requisite of the Cabinet system of government is the presence of a titular executive head of the state who is not the directing and decidingfactor responsible before the nation for the measures adopted. Of course, everything is done in his name by the political men who have backing of majorityin the Lower House of the Legislature. The Queen in England and President in India are the examples.Secondly, the ministers who constitute the real authority are chosen from the majority party in the Parliament. The membership of the Parliament makes theministers responsible and representative in character. It leads to harmonious collaboration between the Legislature and the Executive and ensures a stablegovernment.Thirdly, leadership of the Prime Minister in a Cabinet Government is an established fact. The Cabinet is a term which plays the game of politics under thecaptaincy of the Prime Minister. In the words of Morley, "the Prime Minister is the keystone of the Cabinet."64Fourthly, ministerial responsibility is the foremost principle of the Cabinet system of government. It means - (a) each Cabinet minister is responsiblefor running his department. (b) each minister shares a collective responsibility with other ministers. The ministers sink and swim together. Morrison hasvery well explained this principle of Collective Responsibility. He says "... But the government must stand together as a whole and ministers must notcontradict each other, otherwise cracks will appear in the government fabric. That is liable to be embarrassing or possibly fatal and indeed injuriousto good government."Fifthly, "secrecy of procedure" and "party solidarity" are other distinctive features of the Cabinet system of government. The Cabinet deliberates in secretand its proceedings must be kept confidential. Publicity not only reduces the independence of mind of ministers in relation to each other but also wrecksthe harmony of views among the ministers. Moreover, it gives an opportunity to the opposition to embarrass the government where infirmities are unmaskedand secrets divulged.Lastly, the cabinet government thrives on a sound and effective opposition. In fact, opposition is the very soul of a Parliamentary Democracy.Keeping in view the above pre-requisites of a Cabinet system of government let us see to what extent Russians claim of having a Cabinet system of governmentis justified.Russians ViewThe apologists of Russian Government claimed that they had a Cabinet system of government because all the requisites of Cabinet system existed in theircountry. (1) The Chairman of the Presidium played the role of a titular, a formal head of the state. Chairman of the Council of Ministers was analogousto the Prime Minister in a Parliamentary form of government. (2) Responsibility of the Executive to the Legislature also could not be denied, as the Councilof Ministers was said to be responsible and accountable to the legislature - the Supreme Soviet The ministers were elected by the Supreme Soviet and couldbe ousted by a vote of no-confidence passed by the Supreme Soviet. In the intervals between the sessions of the Supreme Soviet, they were elected by andwere responsible to the Presidium of the Supreme Soviet. Theoretically speaking like the British Cabinet, the Soviet Council of Ministers thus worked inclose correspondence with the Legislature. (3) The ministers attended the meetings of the Supreme Soviet, put forward legislative65attended the meetings of the Supreme Soviet, put forward legislative proposals, and participated in the debates. They were under constitutional obligationto reply to the questions asked by the members of the Supreme Soviet within three days. Moreover, the ministers acted as individual heads of departmentsand also as a council. In the latter capacity, they were entitled to annul the decision of the individual ministers. In the words of Ogg and Zink "LikeCabinets in the democracies, the Council of Ministers has a dual role. As a group, it is charged with the discussion and adoption of executive policies,while its individual members are the head of administrative department."5 Secrecy of procedure and party solidarity were claimed as the cardinal pointsof Russian Cabinet. Since the ministers were drawn from one party i.e., Communist Party, they were apt to constitute a politically homogeneous team. As regards the opposition,Russians did not feel its necessity since there were no antagonistic interests in U.S.S.R. Parties emerged forth when the interests clashed. In U.S.S.R.everybody was supposed to be a worker. Hence workers were supposed to be represented only by one party - the Communist Party - the vanguard of the workingclasses in their struggle to strengthen and develop the Socialist System. Thus theirs was a unique Parliamentary system of government which did not caterto the idea of an opposition.The Opposition ViewKeeping in view the above superficial points of similarities between the working of the Soviet Council of Ministers and that of Cabinets in ParliamentaryDemocracies like U.K. and India, one should not be hoodwinked by the exaggerated claims of the Russian thinkers. In fact these analogies were formal.(1) In actual practice, the system of ministerial responsibility in U.S.S.R. was fundamentally different from what prevailed in the parliamentary governmentsof Great Britain and India. Neither the Supeme Soviet nor the Presidium during the former's interval could dismiss the Council of Ministers. This was practicallyimpossible because the Council of Ministers was controlled and appointed by the Politbureau of the Communist Party. The Supreme Soviet or its Presidiumwere mere ratifying bodies. Dismissal of ministers was effected when they ceased to be the favourites of the Party bosses. How could the Supreme Sovietor the Presidium relieve them, particularly Chairman and Vice-Chairman of the Council of Ministers of their coveted positions when they happened to bethe important members of66the Politbureau of the Party - the apex of Dictatorship? In fact, they controlled the Supreme Soviet and made it dance to their tune.(2) Under such circumstances, collective responsibility of the ministers also became a mere figment of imagination. The individual ministers when failedto toe the Party line or ceased to be in the good books of the Secretary of the Communist Party (who could simultaneously hold the chairmanship of theCouncil of Ministers were generally thrown out without invoking sympathies of their colleagues. Thus the principle of "all for one and one for all" didnot work in the U.S.S.R.(3) The Chairman of the Council of Ministers could not be compared with the Prime Minister of the Great Britain or India. He was hardly a captain of theteam in the sense his counterparts in other Parliamentary democracies were. In India or U.K. the Prime Minister was the creator, the preserver and thedestroyer of his Cabinet. He could shuffle his pack as he pleased. In the U.S.S.R. even theoretically speaking, such appointments were secured throughthe Supreme Soviet itself. The dismissal of the ministers was effected, no doubt on his recommendations but they were subject to the approval of SupremeSoviet and Presidium of the Supreme Soviet when it was not in session and subsequent confirmation by the Supreme Soviet. In fact, he was bound to makesuch recommendations to the Presidium, if he was so directed by the "Politbureau of the Party." In case both the posts - the secretaryship of the CommunistParty and the chairmanship of the Council of Ministers were held by the same individual simultaneously, (as was the case with Stalin and then with Khrushchev),the Chairman could prove assertive but that was in his capacity as the Secretary of the party. Moreover, the Chairman did not possess the right of askingthe formal Head of the State to dissolve the Supreme Soviet. This deprived him of an important power, which the Prime Ministers of other countries possessedand effectively executed.A Cabinet form of government without a sound opposition to supplant the government in power, was inconceivable. In the absence of the opposition, criticismof the Government was hardly possible. The ministers in the latter case, became merely the boyerrands of the Party and the members of the Legislature theiryesmen. They enjoyed immunity from a vote of no-confidence at the hands of the Supreme Soviet. Hence they hardly felt responsible to the Supreme Soviet.Instead they were always out to humour the Party boss who like "Sir Oracle" would not like anybody to open his lips.67new Constitution establish responsible government through ministerial responsibility in Soviet Russia? The answer is that technically it does... on paperthere is no essential difference between Soviet Russia and the French Republic in the matter of ministerial responsibility. But in practice there is agreat deal of difference. The Soviet Commissars are not actually chosen by the legislative body. They are hand-picked by the Politbureau of the CommunistParty, which in turn is made up of men appointed by the Secretary General of that Party. They are not responsible to the legislative body or even to thePresidium save in a purely technical sense. Whenever a Commissar holds his post or loses it depends upon his standing with the Party leaders not with theParliamentary leaders." The above portrayal of the Russian ministerial responsibility makes it crystal clear that the Politbureau of the Party, was thesuper-cabinet though it was not the government per se. Thus it can be concluded that there was no such thing as a Cabinet system of government in the U.S.S.R.It was the dictatorship of the Communist Party, and in fact, the dictatorship of the "Secretary General" of the Communist Party, assisted by a few staunchadherents of his policies and whims, which dominated the Russian political scene. Fainsod has correctly said, "...The Soviet regime has demonstrated greatskill in using the trapping of mass democracy to work the entrenched position of the dictatorial elite which dominates Soviet society.... The politicalrealities of Soviet life speak the unmistakable language of a one Party dictatorship in which ultimate power is deposited in a narrow ruling group."References1. Julian Towster, Political Power in the U.S.S.R., p. 205.2. Schapiro : The Government and Politics of the Soviet Union, p. 126.3. Karpinsky. V.: The Social and State Structure of the US.S.R.4. Karpinsky, The Social and State Structure of the U.S.S.R., p. 126.5. Ogg. and Zink, Modern Foreign Government, p. 866.687 THE SOVIET JUDICIARY"The judiciary is an important and sharp weapon of the dictatorship of the working class..."—RychkovRole of Law and its NatureBefore we critically analyse the Soviet Judiciary we deem it essential to say a few words about the nature and the concept of law of the erstwhile SovietUnion. The Soviet concept of law was intimately connected with the idea pf the nature of the state. According to Marxian ideology the state is an instrumentof coercion specially designed to establish and uphold a particular type of social organisation. Law in such a state is nothing but a tool to protect theinterests of the capitalist class which is dominant in society, and control the means of production. The so-called equality before law in a bourgeois stateis a mere figment of imagination. In a capitalist state the masses cannot stand the expenses of the legal proceedings. Moreover, the judges are alwaysthe custodians of the interests of the propertied classes as their judgments are based upon the laws which are the repository of the trust of the rich.In the words of Vyshinsky, "Marxism-Leninism gives a clear definition (the only sicentific definition) of the essence of law. It teaches that relationships(and consequently, law itself) are rooted in the material conditions of life and that law is merely the will of the dominant class elevated into a statute."The apologists of Marxism in the Soviet Union reject the view that the concept of law—the embodiment of principles of universal justice is divorced fromthe economic and the social structure of the state. Law is the reflection of the will of the state and is an expression of the material life in the state.In a socialist state therefore, the workers, who constitute the dominant ruling class would find in law the saviour of their interests69and a tool for the construction of a socialist society. According to Neumann, "Law (in the Soviet Union), is in essence that which furthers the aims ofthe socialist Revolution. The Soviet Marxists do however emphasise that before the withering away of the state and rising of a classless and statelesssociety on its ruins law will be rigorous and a potent weapon of the "Dictatorship of the Proletariat." In the words of Karpinsky, "In the Soviet Unionthe courts are needed first to fight the enemies of Soviet Government and secondly to fight for the consolidation of the new Soviet system, to firmly anchorthe new socialist discipline among the working people."1 It is thus quite obvious that the tools of law in a bourgeois state are different from that ofa socialist state. In the former, the interests of the state and the working classes are opposed to each other. In fact they clash with each other. Inthe latter, the interests of the state and the proletariat are identical. Towster has very well explained the above point of view in the following words:"After the victory of socialism there can be no juxtaposition of public and private rights and interests in Soviet society. The interests of state, societyand personality are synthesised in a new unity. Hence all branches of law are part and parcel of the same uniform law - Soviet law."2Salient Features of the Soviet Judicial SystemThe Soviet Judiciary was distinct in several respects. Its main distinctive features were as follows:(a) Not a Separate BranchUnlike that of certain democracies judiciary in the Soviet Union was not an independent branch of the government. It was a part of regular administration.The administration of justice was carried on by the law courts in collaboration with the Procurator-General of the U.S.S.R. who was the custodian of publicproperty and was vested with the power of investigating all cases of alleged or suspected sabotage, misappropriation of public property and all other anti-Sovietcrimes.(b) Peculiar Role of JudiciaryThe Soviet Judiciary stood for the preservation and the consolidation of the social order set up after the Revolution of 1917. It was not designed to actas the saviour of the constitution or the guardian of the rights of the masses, as is generally the role of judiciary in a Federal form of government.According to Rychkov, the Commissar of Justice in 1938, "The judiciary is an important and sharp weapon of the dictatorship of the working class in thecause of strengthening socialist construction70and defending the conquest of the October Socialist Revolution." Lenin and Stalin expected the courts to fight the enemies of the people, traitors to thecountry, spies, saboteurs and wreckers and to formally anchor the new socialist discipline among the working people.(c) Election of Judges and Short TenureWhereas in the other democracies, judges are appointed by the Executive Heads of the State; in U.S.S.R. the judges were elected by the Soviets at differentlevels for a fixed number of years. Judges of the people's courts, however, were elected by the people for five years and were responsible to their electors.They might also be recalled by their electors. Election of the judges defeated the very purpose of judiciary. It ceased to be impartial. In fact, Russianjudiciary toed the line of the Communist Party and always danced to its tune.(d) Provision for Lay-Judges - the AssessorsIn order to ensure that the decisions of the judges conform to the interests of the proletariat class, the Constitution had made a novel provision of lay-judges-theassessors. According to the law of the land one judge and two assessors constituted the court for original jurisdiction. The decision on the matter beforethe courts was arrived at through a majority vote.These assessors were elected alongwith the judges. They served only for a period of ten days in a year unless the extension was needed by the duration ofa case. Therefore 50 to 75 assessors were elected per judge. They assisted the judges in rotation. They were subject to recall like the judges by thosewho elected them.(e) No Educational Qualifications of Judges and AssessorsThe Law did not provide for the qualifications of the judges as well as the assessors. But the judges were generally the legal luminaries. The lay-judgeswere however, drawn from all walks of life. Hence, they were novices in the domain of legality. They may not be confused with the jurors of western democracies.The jurors decide only specific questions of facts while judges decided questions of law only. Both sit for deliberation separately. In the U.S.S.R., onthe other hand, the assessors discussed and decided all questions of Law and facts together with the judges. It may be pointed out that a judge used tobe equipped with the knowledge and special training of Marxian and Leninian ideology as it was felt that a poor Marxist unaware of the Party's decisionwas unfit as a judge and was apt to fail in his main duty of protection of the social order.71(f) Equality before LawThe system of courts was uniform and equable for all citizens. It reflects that the Constitution guaranteed equality before law to all citizens withoutany discrimination on the basis of their nationality, race, social origin, and occupational status; of course, the traitors, the spies and the wreckerscould not expect equality before law. They were deemed the enemies of socialism. Hence, they must be mercilessly treated. Cases against the foes of socialismdid not come before the regular courts. They came within the jurisdiction of the Political Police which could and often did send such criminals to theconcentration camps. The western critics assert that under fallacious pretexts, the opponents of the Communist ideology and those opposed to the Partyleadership were cruelly crushed. Hence, equality before law was reduced to a mere farce.(g) No Private Practising LawyersIn U.S.S.R. the accused persons were provided with advocates for the defence, free of charge. These advocates functioned under the supervision of courts.The Ministry of Justice set the fees and paid them to the Regional Bar Associations termed as the "College of Advocates." The latter made payments to theindividual members. The Russians proudly claimed that nobody in U.S.S.R. was deprived of legal defence for the lack of funds. Dr. Finer however statesthat the accused is in no way gainer in actual practice. "The College's internal rules require that a lawyer is under obligation first to the State. Hemust help even the prosecutor."3 The moment, the case had a "reason of State" aspect, the Soviet defence counsel became little more than echo of the prosecutor.In the words of a Deputy Minister of Justice in June, 1951, "Bravely and consistently defending the accused, the lawyer must be guided by the principlesof socialist justice. He must present his arguments for the defence without departing from the standpoint of a Soviet Defence attorney. A Soviet lawyercannot confine his task merely to the interests of the client, but must always think in the first instance of the interests of the people, the interestsof the state."4 The above two statements make clear that in reality nobody could feel safe and secure in the hands of such a legal defence.(h) No Judicial ReviewThe highest tribunal of the Soviet Judiciary unlike that of its counterpart in other democratic countries of the world, was not vested with the power ofdeclaring laws passed by the Supreme Soviet of U.S.S.R. or Republics or decrees issued by the Presidium unconstitutional. It could72not annul the decisions of the Council of Ministers on this account. Thus the Supreme Court in the erstwhile U.S.S.R., cannot be considered as the guardianof the Russian Constitution.(i) Open TrialsArticle 157 of the Brezhnev Constitution specified that the cases in all the courts must be heard in public unless otherwise provided by law and the accusedbe guaranteed the right to defend. Such constitutional guarantees were indeed admirable but they were confined to non-political cases only. There was noquestion of open trial of those who were charged with anti-Soviet activities, and were dubbed as enemies of socialism.(j) Judicial Proceedings in the Language of the AreaThe proceedings in the courts were conducted in the language of the Union and the respective areas where they were established. If an individual was notconversant with the language used in the court, he was allowed an interpreter at the state expense and was also allowed to use his own language.5(k) Provision of ProcuratorsThe provision for a Procurator General of U.S.S.R. and procurators in the units was a distinctive feature of the Soviet judiciary. The Procurator Generalenjoyed a unique position in the judicial system of the U.S.S.R. His powers were so extensive and his authority was so pervasive that he had become anintegral organ of the state power. He was the watchman of the socialist legality and the champion of Socialism.(l) A System of AppealsProvision was made for the carrying of appeals against the decisions of all the courts except the Supreme Court of the U.S.S.R. An appeal could be filedeither by the accused himself or his representative or by a procurator. Only in very rare cases, a case was reviewed on a protest made by either ProcuratorGeneral of the U.S.S.R., the Procurator of the Union Republic, the Chairman of the Supreme Court of the U.S.S.R. or by the Chairman of the Supreme Courtof the Union Republic.(m) Absence of Capital PunishmentExcept for those charged with treason, espionage and wrecking and very severe penalties for offences against the state and the socialist property and forviolation of labour discipline were also the distinctive features of Soviet judiciary.73(n) Single Integral Judicial SystemIn the United States there are separate systems of judiciary for the federal Government and the states. The American Constitution does not describe theorganisation of State Judiciary. In the Brezhnev Constitution, Article 153 provided for a single integral judicial system and empowered the Supreme Courtof the U.S.S.R. to supervise the administration of justice by the courts of the U.S.S.R. and Union Republics.The above features of Soviet judicial system took away the significance of the judiciary. The Russian judiciary was not as powerful as the U.S. or Indiancourts are. The judges did not enjoy a powerful position, nor were they independent. The Russian judiciary was reduced to a mere administrative departmentof the Soviet anization of the Soviet JudiciaryThe Constitution laid down the broad outline of the organisation of the federal courts and the courts in the Union Republics and other administrative divisionsof the U.S.S.R. The details concerning the organisation and working of the Soviet Judiciary were formulated and adopted by the Supreme Soviet in August1938.The Soviet Judiciary presented a single hierarchical structure for the entire country. At the base of the hierarchical structure stood two types of courts- (a) Comradely courts and (b) People's courts. At the summit, stood the Supreme Court of U.S.S.R. and the special courts. In between the base and thesummit stood the superior courts of regions and territories, the Supreme Courts of Autonomous Republics and the Union Republics.(a) Comradely CourtsThe comradely courts did not constitute an integral part of the regular judicial hierarchy of Soviet Union, though they formed the broad base of the Sovietjudiciary. Their composition and working were not regulated by general rules. They were established in prisons, factories department houses, even shipssailing abroad etc. Their judges were elected by the persons of group concerned. They dealt with minor disputes arising within the particular group ofpeople. They could impose fines amounting to fifty roubles. They could issue reprimands and censure the members of the group concerned publicly.(b) People's CourtsThe basic organ was termed as District (city) people's court. The people's courts were known as district courts as well since at least one74such court existed in every district. The exact number of people's courts in a district was to be determined by the Council of Ministers of the Union Republicor of the Autonomous Republic where the District was located.A People's court consisted of one judge and two assessors who were elected by all the qualified voters of the area served by the people's courts. Thoughno qualifications were prescribed for the judges, yet only legal experts were earmarked as candidates. A People's judge was elected for a period of fiveyears. About fifty to seventy-five assessors were also elected for each such court. Generally each pair of assessors served for ten days in a year. Theperiod could be extended if the case remained unfinished. Both the judges and the assessors were subject to recall by the electors. They were expectedto report periodically to the electors on their work in the court.Their WorkingDecision on the case was arrived at by a majority vote. The dissenting member was permitted to get his opinion recorded. Proceedings in these courts weremarked for informalities. The witnesses interrupted and shouted at each other. Even the onlookers joined them when emotions ran riot. In the words of Carter,"Decisions are argued over like those of football games. There seems little question, despite the degree of central control, that the community takes alively interest in cases and feels keen interest in the verdicts awarded."6Their JurisdictionThey exercised only original jurisdiction. They dealt with civil and criminal cases. Their criminal jurisdiction extended to all cases against life, health,liberty and dignity of citizens, property crimes, service crimes, such as abuse of authority or embezzlement and crimes against the system of administrationsuch as non-payment of taxes, violation of the Electoral law or of Government decrees. The civil jurisdiction of these courts extended to cases concerningproperty, labour laws, alimony, inheritance and divorce. Violations of labour discipline and disorderly conduct cases were tried summarily by these courts.(c) The Territorial Courts (Courts of the Autonomous Regions and National Areas)Next to the People's Courts were the Territorial Courts which included the Courts of Autonomous Area and of Autonomous Regions. These courts, possessedboth original and appellate jurisdiction. As courts of original jurisdiction they tried civil as well as criminal cases. Criminal75cases involving the security of state, embezzlement of socialist property and other counter revolutionary crimes were tried by these courts. Civil casesinvolved dispute between state or other public organisations.As appellate courts, they heard appeals from sentences and judgments of the people's courts.All of these courts consisted of a Chairman, a Deputy Chairman, members and assessors who were elected for a period of five years by the Soviet of a particulararea.(d) The Supreme Court of an Autonomous RepublicIt was the highest judicial body in an Autonomous Republic. Its judges and assessors were elected by its Supreme Soviet for a period of five years. It supervisedthe judicial activities of all the courts of the Republic. It tried the civil and criminal cases of which it was given jurisdiction by law. It heard appealsfrom sentences and judgments of the lower courts of the Republics.(e) The Supreme Court of the Union RepublicIt was the highest judicial authority in the Union Republic. Its judges were elected by the Supreme Soviet of the Union Republic concerned for five years.It was charged with the supervision of the judicial activities of all the other courts of the Union Republics and of the Autonomous Republic's Territories,Regions and areas constituting Union Republic's Territory. It could review the decisions of lower courts on the protest of (a) the Procurator General ofthe U.S.S.R.; or (b) the Chairman of the Supreme Court of the U.S.S.R.; or (c) the Procurator of the Union Republic; or (d) the Chairman of the SupremeCourt of the Union Republic. It thus possessed appellate jurisdiction against the decisions of the lower courts. It was vested with the original jurisdictionin civil and criminal matters of a particular character. For instance cases involving the highest state officials and those referred to it by the Presidiumof the Supreme Soviet of the Union Republic or the Procurator or the Minister of the Interior Affairs of the Union Republic or those that the Court itselfdecided to try, were brought before it.It itself was subject to the control and supervision of the Supreme Court of the U.S.S.R.(f) The Supreme Court of the U.S.S.R.On the apex of the judicial pyramid, stood the Supreme Court of the U.S.S.R. According to Article 153 it had to consist of a Chairman, Vice-Chairman, Membersand People's Accessors. The Chairmen of the76Supreme Courts of Union Republics were ex-officio members of the Supreme Court of the U.S.S.R. Thus total members was 70 and there were 25 Peoples, assessorsas well.All the judges with the exception of those who set by virtue of their office were elected by the Supreme Soviet of the U.S.S.R. for five years. Since itssize was unwieldy, it functioned in five 'Collegia' viz., the civil, criminal, military, railroad transport and water transport Collegia. When a Collegiaheard a case of a court of original jurisdiction, it was composed of one judge and two people's assessors. When a 'Collegia' set as an appellate court,it consisted of three judges. The court set as a "Plenum" i.e., full Bench, at least once in two months to review the judgments, verdicts and rulings ofits own Collegia placed before it by the Chairman of the Supreme Court or by the Procurator General. It may be pointed out that the presence of the ProcuratorGeneral was compulsory when the court sits as a Plenum and All Union Minister of Justice could attend if he so liked. The Plenum was empowered to issueinstructions to guide judicial practices in all courts in the U.S.S.R. on the basis of the decisions of Supreme Court of the U.S.S.R.Functions of the Supreme Court(a) As a Court of Appeal and ReviewThe Supreme Court of U.S.S.R. was primarily a court of appeal and review. As an appellate court, it was empowered to review and annul the judgments of lowercourts including the Supreme Courts of the Union Republics and Special Courts of the U.S.S.R. Such a review of the judgments of the Supreme Courts of theUnion Republics was done either on the protest of the President of the Supreme Court of the U.S.S.R. or the Procurator General on the ground that the decisionof the Supreme Court of the Union Republic conflicted either with All Union Law or with the interests of other Republics.(b) As a Supervisory CourtMoreover, it was authorised to issue rules of general effect with regard to judicial procedure. Such a supervisory authority of the Supreme Court over thelower judicial organs made the Soviet Judicial System highly integrated and considerably centralised.(c) It issued general instructions of the law for the benefit of its own division and of all inferior courts.(d) It assisted the Presidium of the Supreme Soviet for interpretation of the law.(e) It resolved conflicts between the judicial organs of the Union Republics.77(f) As a Court of Original JurisdictionThe Supreme Court was equipped with original jurisdiction as well, both in civil and criminal matters of Ail-Union importance and gravity. In the wordsof Dr. Finer, "As a Court of first instance it functions rarely and only for the trial of the highest officials charged with state, military, economicor service crimes or cases which have been sent before it by the Presidium of the Soviet of the U.S.S.R. for their legal complexity or political importance."7(g) The chief function of the Supreme Court of the U.S.S.R. was that it acted as a guardian of justice and socialist legality.No Power of Judicial ReviewUnlike that of the Supreme Courts of the U.S.A. and India, the Soviet Supreme Court did not possess the power of judicial review over the legislation. Assuch, it was not considered as the saviour of the Constitution. It could not declare the laws passed by the Supreme Soviet and the decrees issued by thePresidium as unconstitutional. It could not annul the decisions of the Council of Ministers on the ground that they conflicted with the Constitution. Accordingto Turbiner, "This function of guarding the constitution by way of verification of the constitution of laws which in the United States is given to theSupreme Court, we in connection with the idea of concentration of power - given to the Central Executive Committee and its Presidium, the Supreme Courtof the Union only renders opinions."Is the Supreme Court Independent?According to Article 155 of the Constitution, the judges were independent and subject only to law. But the legal truth was a political untruth. The SupremeCourt was a part of the administration. It was neither superior nor independent branch of the Government No legal qualifications were laid down for thejudges, and they were also subject to recall. Only those persons who had faith in Communist ideology and were staunch adherents of socialism were appointedas judges of Supreme Court. Election by the Supreme Soviet was just a formality. The judges always toed the line of the Party when they were elected becauseof their faith in the Communist ideology. Thus the so-called independence of the judges was a farce in the U.S.S.R. Election of the judges and their shorttenure went against the basic essentials of independent judiciary.Moreover, the close association of the Procurator General and the Ministers of Justice with the Supreme Court reflected that the Executive intervened inthe judicial affairs to a considerable extent. Hence, the78proverbial independence of judiciary in a democracy was conspicuous by its absence in the U.S.S.R.Special CourtsThe Special Courts were of two types: (a) Military Tribunals and (b) Line Courts for railroad, transport and water-transport. Military Tribunals were setup at places where military forces were stationed or where military institutions existed. According to Karpinsky, "the establishment of the Special MilitaryCourts arises from the necessity of strengthening the military might of the U.S.S.R. and military discipline." These courts tried cases relating to militarycrimes, counter-revolutionary crimes, and crimes like treason and espionage in which military personnel were involved.The Special Line Courts were established because of the special conditions prevailing on the railways and in the water-transport line and offences impedingthe normal working of the transport system. Their jurisdiction could further be extended by the Supreme Soviet of the U.S.S.R. which was empowered to createmore special courts if emergencies so necessitated. Decisions of the special courts could be appealed before the corresponding Collegia of the SupremeCourt.The Procurator General of the U.S.S.R.In Czarist Russia, the Procurator was called "the sovereign's eye." Most of the Procurators used to be appointed from the nobility. Hence they were thecustodian of the interests of the nobles and the wealthy classes. Karpinsky emphasises that in the capitalist countries, the public prosecutors are appointedfrom wealthy classes whose interests alone they safeguard. In the U.S.S.R. on the other hand, the procurators' offices are organs of the Soviet SocialistState of workers and peasants.The Soviet Procurator's Office was originally established in the R.S.F.S.R. in 1922 and later on in the rest of the Soviet Republics. The Procurator's officeof the U.S.S.R. came into existence on June 20, 1933. He was termed as the Procurator General and was appointed for a period of five years by the SupremeSoviet of the U.S.S.R. The Procurators in Union Republics, Autonomous Republics, Autonomous Regions and Autonomous Areas were appointed for five yearsby the Procurator General of the U.S.S.R. The Procurator of a Union Republic was empowered to appoint local procurators for districts, areas and citiesfor five years subject to the approval of the Procurator General, Thus the hierarchy of Procurators operated independently of local authorities and ofMinistry of Justice. It was subordinate to the Procurator General only. In the words of Towster Julian, the office of79the Procurator General is "highly centralised and it operates on the principle of one man management."8 The entire system therefore ensured a high degreeof unformity and centralisation of control on the administration of the laws in the U.S.S.R. G.M. Carter has correctly opined, "Thus, despite the appearanceof a federal division in this field, there is, in fact a completely unified and centralised organisation."9Functions of the Procurator General and the ProcuratorsThe Procurator General occupied a pivotal position in the Soviet political system. His powers as enumerated below were imposing.(a) As a supreme supervisor of the judiciary, he ensured strict observance of the law by all ministers and institutions subordinated to them and also officialsand citizens of the U.S.S.R. generally.(b) The Procurator General and the hierarchy of Procurators working under him acted as the procurators on behalf of the State or of a private individual.They could question the actions of the officials and have them prosecuted if they violated the laws.(c) They kept a watch on the administrative regulations in order to ensure that they did not contravene the law of the land.(d) The Procurator's Office, like the courts, combated crimes committed against the Soviet State, fought against the enemies of Soviet power, i.e., thespies, saboteurs, wreckers and the agents of the bourgeoisie abroad. The Procurator General was particularly incharge of counter-revolutionary crimes.(e) The Procurator General was the official guardian of the socialist property. As such he combated robbery, theft, economic mismanagement, red tape, violationof labour and state discipline and bureaucratic excesses. The Procurators in the units and districts performed the same duty in their respective spheres.(f) He was the custodian of the people's rights as well. In this capacity, the Procurator General and the Procurators in the other units safeguarded theinviolability of the person. No person could be arrested except by decision of a Procurator.(g) He alongwith the rest of the Procurators possessed the right to appeal against all unlawful decisions and actions of State organs and officials. Thecitizens were entitled to complain to the Procurator any violation of law.(h) The Procurators instituted criminal proceedings and investigated criminal cases. They ascertained the circumstances under which80crimes were committed and collected evidences against the criminals and their accomplices. They had to see that the other investigating bodies kept withinthe limits of the law. Thereafter, they maintained the prosecution before the court in the name of the Soviet State and at the end of the trial, examinedthe verdict of courts and the sentences if inflicted by them. If the judgments in their opinion were erroneous, they could hear appeals against them. Ifthey were convinced of their correctness, they saw to their execution.(i) They had to see that the laws were correctly and uniformly applied in U.S.S.R.(j) The Brezhnev Constitution under Article 113 had given to the Procurator-General the right to initiate legislation in the Supreme Soviet.Keeping in view the above functions of the Procurators in the Soviet Union Karpinsky says, "The Soviet Procurator's Office stands guard over socialist legality,Soviet socialist law and order." Vyshinsky who himself held the office of the Procurator General has very well described the all-pervasive and virtuallyomnipotent authority of the Procurator General. He opined, "The Soviet prosecuting officer is the watchman of socialist legality, the leader of the CommunistParty and of Soviet Authority, the champion of socialism." Since the office of the Procurator General was of great importance it was generally held byone of the top-ranking leaders of the Communist Party. He was in fact, "an integral lever of the proletariat dictatorship directed by the Party."References1. Karpinsky, V., The Social and Stale Structure of the U.S.S.R., p. 94.2. Julian Towster, Political Power in the U.S.S.R., p. 16.3. Finer Herman, The Governments of Greater European Powers, p. 848.4. Literary Gazette June, as quoted in the Government of Greater European Powers by Finer, p. 848.5. Article 159.6. Carter, G.M., The Governments of the Soviet Union, p. 158.7. Finer Herman, Governments of Greater European Powers, p., 846.8. Julian Towster, The Political Power in U.S.S.R., p. 308.9. Carter, G.M. and others, The Government of Soviet Union, p. 159.818 THE COMMUNIST PARTY OF U.S.S.R."...the party is both a creed and mechanism..."-Ogg &ZinkThe One Party System of the U.S.S.R.One of the most conspicuous features of the Soviet constitutional system was the monopoly of the political power enjoyed by the Communist Party. There mightbe other parties, as said by A.R. Williams, but "On the sole condition that one is in power and the other is in jail." The pivotal system of the CommunistParty and the dominating role that it played in all fields of economic, social and cultural activity were discernible in the Soviet Constitution. Article6 of the Brezhnev Constitution clearly stated, "the leading and guiding force of Soviet Society and the nucleus of its political system, of all state organisationsand public organisations is the Communist Party of the Soviet Union. The C.P.S.U. exists for the people and serves the people." Stalin who dominated theRussian soil like huge colossus till 1952, fully recognized the importance of the party when he emphasised: "Here in the Soviet Union, in the land of Socialismthe fact that not a single important political or organisational question is decided without directions from the Party must be regarded as the highestexpression of the leading role of the Party."1 In fact the Soviet political system was based upon one will, one direction, one principle. In this respectthe party system in U.S.S.R. differed fundamentally from the one prevailing in Western democracies. The latter believe in Bi-Party system which is regardedas the characteristic of the Parliamentary form of Government. In Great Britain and Canada for instance the Leader of the Opposition is paid from the nationalexchequer a regular salary and the opposition is officially recognised. Searching scrutiny of Government's policies and public criticism of its activitiesthrough the82organised opposition parties constitute the essence of these democracies. In the U.S.S.R., on the other hand, opposition was not only not allowed but alsomercilessly crushed.Since summer of 1918, opposition in the U.S.S.R. was being ruthlessly trampled under the heels of Russian dictators on one plea or the other. Before consolidationof Socialism which was achieved by 1936, as claimed by Stalinists, opposition was not allowed to raise its head because bourgeois classes were to be exterminatedand the socialistic order was to be stabilised. After 1936 opposition was not required because antagonistic interests no longer persisted in U.S.S.R. Russiansclaimed that after the elimination of the anti -socialist elements only two friendly classes, the workers and the peasants were left in the U.S.S.R. Hence,there was absolutely no necessity of opposition parties in the U.S.S.R.MonolithismWhile discussing the peculiar characteristics of the Communist Party Herman Finer refers to 'Monolithic' character of the Party as well. Monolith is thebeloved metaphor for the Party Unity - "A single block of stone," preferably "granite". The monopolistic position of the Party was not confined to meresuppression of all opposition from outside its ranks but also elimination of all possible 'factions' or groupings in the Party itself. Monolithism wasnot attained immediately after the Revolution of 1917. Small groups within the party appeared quite frequently and challenged the policies of the CentralCommittee. In the early years after the Revolution, a faction led by Kamenev, Zenoviev Rykov disagreed with the majority of Central Committee on the questionof formation of a Coalition Government with the assistance of the other socialist parties. In 1918, Bukharin who led the "Left Communists" vehemently opposedLenin on the terms of the Brest-Litovsk peace treaty with Germany. During the Civil war, "Democratic Centralism" group and the "Labour opposition" emergedout and went into oblivion after a short span of time. In the post-civil war period -Trotsky led the opposition on certain matters of vital importance.He differed from other party leaders on the important issues like the relation between the peasantry and the proletariat and between agriculture and industryand the nature and programme of the Proletarian Revolution. He believed in permanent revolution whereas Stalin stood for the doctrine of "revolution inone country." Assisted by important leaders like Kamenev and Zenoviev, Trotsky continued opposing Stalinists. During the celebrations of the tenth anniversaryof83the Communist Revolution on November 7, 1927 this new opposition attempted to stage street demonstrations as well. This led to the general purge of seventy-fiveleaders from the Party. Trotsky, Kamenev, Zenoviev and Radek - the prominent oppositionists were also expelled from the Party. Soon after, the Rightistgroup led by Bukharin, Rykov and Tomsky came into existence. It started advocating the slowing down of the process of industrialisation and tolerationtowards non-Communist socialist groups. In July, 1928, Bukharin attempted to form an oppositional alliance with Kamenev. The majority section of the Partyunder the leadership of Stalin emphatically condemned these nefarious activities of the oppositionists amounting to gross breach of Party discipline andremoved the dissidents from the important positions they were holding in the Party organisation.Thus by 1930, open opposition in the Party was almost eliminated. Secret factions, however, persisted. A cold blooded murder of Kirov in December 1934 andmass trials and general purges of 1936-38 amply revealed the existence of secret factions after 1930. It is therefore quite obvious that monolithism inthe Party could be achieved only in 1938, when the opposition was more or less liquidated and Stalin emerged supreme as the infallible leader of the Party.In the words of Carter, "Thus the monolithic party achieved in practice and theory its logical apex."During the post-Stalin era, Khrushchev denounced strongly "the Personality Cult", advocated and practised by Stalin and condemned severely the latter'sarbitrariness towards high party functionaries. "Return to Leninism which involves the practice of Collective Leadership and a greater openness about highparty discussions became the watchword of Khrushchev's regime. It seemed for a moment that the pathological secretiveness and arbitrariness of Stalin'slater years was not being repeated. But Khrushchev's attitude towards pro-Stalinists made it crystal clear that "there is no indication that the ultimateresult is anything other than the same exclusive control of ultimate decision making in the hands of the top-leaders. In this sense, the monolithic partyremains unchanged."2 After Khrushchev also the Party continued to retain its monolithic character. Gorbachev tried to toe Khrushchev's line and believedin openness but an abortive attempt was made by the hardliners of the party to topple him. Thereafter the Party was disbanded and Soviet Union got extinct.Objects of the PartyWhile according to the Stalin Constitution the Party was the vanguard of the working people in their struggle to strengthen and develop the84socialist system, under the Brezhnev Constitution it became the party of the whole people. Its main objectives were as follows:(a) To build Communist society by gradual transition from socialism to communism.(b) To wage a ceaseless struggle to raise the material and the cultural standards of the people.(c) To educate the members of society in the spirit of internationalism and fraternal ties with the working of all countries.(d) To strengthen the might of the Soviet Union against the aggressive activities of the foes of socialism.(e) To enhance Russia's influence in international sphere.(f) To secure stable and lasting peace among the nations of the world.Most of these laudable objectives were achieved by the Party. In fact, "the Party is both a creed and mechanism. It is a creed in the sense that it cherishesan elaborate body of economic and political doctrines to which all of its members must unswervingly adhere. It is a mechanism in the sense that it is gearedin all of its parts to highly centralised control by a single compact group driving steadily towards an ultimate goal."3Membership of the PartyIn the words of Fainsod, "as a closed elite party the Communist Party of the Soviet Union has never placed a premium on mere members." The 19th Congressof the Party held in 1952 reveals that its membership stood at 6,882,155. In 1956, its membership was increased to 7,215,505 members. Before, its disbandingin August 1991, its membership had risen to about five per cent of the population. The small size of the Party did not affect its monoply position in theSoviet Society.It may, however, be said that a large number of members who were not the regular members of the Communist Party considered themselves Communists and maybe reckoned as the adherents of the regime. By lowering its standards, the Party could easily add to its strength but it kept the requirements for admissionso high that relatively few people could undertake to meet them. Before 1939, special restrictions were imposed upon its membership. The candidates formembership used to be divided into different classifications according to their occupations and class origin. Those in less forward categories were requiredto serve an exceptionally long period of probation and were to be recommended by large number of sponsors. In 1939, rules for such categories of85people also were relaxed and were made more and less uniform. Henceforth candidates for membership were to be recommended, without any discrimination onany basis of occupation and ancestry by three party members of at least three years' standing who were familiar with the candidates at their place of work,at least for a year. After the completion of the probationary period to the entire satisfaction of the lowest local party organs which discussed the applicationsof these prospective members in general meetings and the City and District Committees which endorsed the decisions of the lowest local party organs, a'candidate member' was admitted as a full member of the Party. The prospective members were no longer expected to master the party's programme. It wasenough for them to accept it, and to "submit to the rules and discipline of the party." Each member in fact was admitted individually on the basis of hispersonal record and qualifications. In the words of Ogg and Zink, full membership is granted to an individual "only if upon rigorous examination, he isfound to be actuated by no selfish or ulterior motives, grounded in and wedded to the Communist faith, devoid of any traces of bourgeois mentality, informedon his civic obligations and duties and of good moral standing."4 Private merchants, priests and those betraying traces of bourgeois mentality were debarredfrom party membership. A minor negligence of duties or deviation from the party line led to expulsion from the Party.Social Composition of the PartyMost of its members were drawn from the intelligentsia since the Communist Party constituted the government, and had assumed the direction and planningof all political, industrial and agricultural activity. The highest positions in all of these undertakings were held by the most important members of theParty.The Party was largely urban. Workers and intelligentsia constituted 75 per cent of the total. Its representation in the rural areas was rather thin andconsisted, in large part of administrative and directing personnel in rural centres, state farms and tractor stations. The ordinary collective farmer wasexcluded from the Party elite. According to Finer, "It is today predominantly a party of the Soviet technical, managerial, foreman, slate officials andparty directors, professional intelligentsia. It is moved away from its original worker strata. This is the rising element in the Soviet Union. It is heavilyurban and weakly rural."5Women's membership of the party had also increased from 8.2 per cent in 1924 to 21 per cent in 1950 and beyond.86Its social composition, since 1946 was as follows:Workers....20.0 per cent; Peasants....25.0 per cent; Non-manual (Intelligentsia)....55.0 per cent.6 Whereas its composition in July, 1961 was as follows:Workers - 34.5 per cent collective farmers, 17.5 per cent employees and all others - 48 per cent. Nearly 2/3 of the third category of members consistedof managers of economic enterprises and specialists in various branches of science and culture. Keeping in view social composition of the party Fainsodsays, "the composition of the Party reflects an increasing crystallisation of elitist tendencies. All the functional imperatives of industrialisation drivein this direction. If these tendencies continue unarrested, the party faces the protest of increasing alienation from the mass of workers and peasantswho remain outside its ranks."7Organisation of the PartyThe Organisation of the Communist Party which was probably more elaborate than that of any other political group in the world was in the form of a greatpyramid. At its base were the primary party organisations termed as cells. They formed the backbone of the Party. They were set up in mills, factories,state farms, machine and tractor stations and other economic establishments, in collective farms, units of the Red Army and Navy in villages, offices,educational establishments. In 1977 there were said to be 3,90,000 party cells etc. where there were not less than three party members. Each primary organmet once a month. The actual direction of its activities, however, was carried on by a "Bureau", if the organisation consisted of at least fifteen members,otherwise by the secretary alone. If the organisation was of a larger size, it could have several full-time officials. The key to the organisational workat this level was the secretary.Functions of the CellsIn the words of Carter, "These primary organisations provided the front line of the party's contacts with the mass of the people." Their main functionswere as follows: (a) Agitation and organisational work among the masses; (b) providing the leadership of the Primary Press; (c) enlisting new members andorganising their political training; (d) imparting political education to the party members and candidates; (e) co-operating with the District Party Committeeor City Party Committee or Political Section in all their practical work; (f) mobilising the masses in industrial enterprises, state farms, collectivefarms etc. to87fulfil the production plan, strengthen labour discipline and develop socialist competition; (g) struggling against laxity and thriftlessness in enterprises;(h) developing criticism and self criticism; (i) participating actively in the economic and political life of the country.City and District Party OrganisationsCity and District Party organisations constituted the next tier of the Party pyramid. They were termed as City and District Conferences. They were composedof delegates elected by the cells. Each of these conferences elected a Bureau which because of their larger areas, included three secretaries of whom onewas always senior. The appointment of the secretaries was subject to confirmation by the regional, territorial or Central Commiuee of the Republic withinwhich the district was located. These conferences held sessions at least once a year. The Bureau, however, remained in constant session and kept itselfin constant touch with the secretaries of the primary party organs. It was empowered to issue directives to them. It was authorised to appoint and instructthe editors of local party publications and supervise the work of party groups in non-party bodies like trade unions, co-operatives, youth organisationsand cultural societies.The Province, Territory and Republic OrganisationsAbove the City and District Conferences were area party organisations on the regional, territorial and Union-Republic levels. They were composed of delegateselected by City and District Conferences. The highest authority in each case except the highest organisation was known as the Congress. Since the R.S.F.S.R.was too large for an organisation at the Union-Republic level, a special bureau working directly under the Central Committee was appointed in 1956, onthe suggestion of Mr. Khrushchev. The Conference met once in eighteen months. Hence it elected an Executive Committee which met once in two months or Bureauwhich was more or less constantly in session, and also a number of secretaries. Elections of the Committee, the Bureau and Secretaries were subject toratification of the Central Commiuee of the All Union Congress. These secretaries who were kept under the control of the top party leadership, exerciseda vast amount of power. They had been described as "on a small scale the God and the Tsar." These Party Conferences or Congresses organised directed andsupervised the work of the party, within the areas under their respective jurisdiction. They elected and directed the work of Editorial Boards of partypublications in the area and directed the party group in non-party organisations.88The All-Union CongressThe ultimate authority of the party was supposedly vested with the "All-Union Congress." It was composed of delegates elected by the Province, Territoryand Republic organisations. According to the rules, it was convened at least once in five years. The Central Committee of the Party or 1/3 of the membersof the previous Congress could convene special sessions of the Congress. The sessions were not open to the public. The Congress elected a Central Committee,which heard and approved reports of the Party, Central Committee, the Central Inspection Commission and other Central organisations. It determined thebroad policy and the tactical line of the Party. It reviewed and amended the programme and statutes of the Party. Since the Congress met very infrequently,it did not exercise the above stated powers in reality. Only theoretically, it was the supreme organ of the Party. It is quite evident from the fact thatduring, critical period of World War II and down to October 1952, it did not hold any meeting. Thus for 13 years there was no session of the Congress.Again the 27th congress held its session in 1985 and till 1991 no other session was held.The Central CommitteeIn order to carry on the affairs of the Party during the long intervals between meetings of the All-Union Congress, a Central Committee was constituted.Formerly it consisted of about 70 members and 70 alternates. The membership had been varying from time to time. In March 1976, the Central Committee electedby the twenty-fifth Congress consisted of 287 members and 139 alternate members. In fact the Central Committee was composed of Party secretaries of theCentre, the Republics and the more important regions and also a substantial number of leading members of the Council of Ministers of the U.S.S.R. and theChairman of the Council of Ministers of the Union Republics, a few representatives of the military high command, the police and topmost party ideologistsand intellectuals. The Committee held not less than one plenary session every six months. It was expected to carry out the decisions of the All-Union Congresswhich was the formulator of the major policies of the party. Since the Congress met very infrequently, it carried out the functions of the All-Union Congress,during its intervals. The Party rules clearly specified that the Central Committee, "guides the work of the Party in the intervals between Congresses,represents the Party in its relations with other parties, organisations and institutions, sets up various party institutions and guides their activities,appoints the editorial boards of their central89organs of big local organisations, organizes and manages enterprises of a public character, distributes the forces and resources of the party and managesthe central funds." It is thus quite clear that the Central Committee not only controlled the affairs of the party but also the operations of the government.It may however be pointed out that the Central Committee, too was an unwieldy body and a misfit for an efficient action. Hence it delegated its authorityin large measure to its officers, secretariat and subcommittees. Prior to 1952 it functioned largely through a Politbureau and to a lesser degree throughOrgbureau, but they were abolished in 1952 and replaced by Presidium. Again in 1966, Presidium was abolished and was substituted by Politbureau.Specialised Party AgenciesPolitbureauIn the words of Stalin, "The Politbureau is the highest organ not of the state, but Party and the Party is the highest directing force of the State." Itsmembership had been variable. In 1952, the number of its members was raised from fifteen to twenty-five. At the death of Stalin its membership was cutdown to ten. Before its abolition, and substitution by Presidium, it consisted of ten members with four or five alternates and was headed by the SecretaryGeneral of the Party. It used to be ultimate formulator of the policy of the Party in political matters. It always met secretly. Though its decisions werearrived at through discussions, yet differences of opinion were never made public. In fact, Stalin's will prevailed in the Politbureau though certain westerncritics of Stalin termed him as a "prisoner of the Politbureau."It met several times each week during much of the year. It generally did not adjourn until the early hours of the morning after hours of debate. The Politbureaumaintained a number of committees or commissions to pay special attention to various matters. It had a staff of experts to provide technical services,gather data and carry on research as regards problems confronting the U.S.S.R.Though the Politbureau was a sub-committee of the Central Committee which in itself was subordinate to the Party Congress yet in actual fact, it was the,"keystone of the entire party structure, and indeed of the U.S.S.R."8The OrgbureauAnother distinctly less important sub-committee set up by the Central Committee was designed as Orgbureau. Like that of Politbureau, its membership variedfrom time to time, ranging from five to thirteen90members (including five members of secretariat). It too consisted of influential members of the party. Sometimes, some of the important members of the Orgbureauwere holding the membership of the Politbureau as well.The SecretariatThe Secretariat which overshadowed the Orgbureau consisted of five members with Stalin as the General Secretary. The 1952 Congress added five new Secretaries.Though the Secretariat was constituted for executing the will of the Central Committee, it surpassed the latter in power and became the gearbox of theCommunist Party of the Soviet System. The statute of 1952 effected certain alterations in the party secretariat omitting the position of the SecretaryGeneral and substituting a group of members with Stalin as the head. After Stalin's death, the number of secretaries was again cut to five. In July 1955,Central Committee increased the number of Secretaries to 6. The 1956 Congress further enlarged the group of 8. The office of General Secretary began tobe designated first Secretary during Khrushchev's time. However, the 23rd Congress of the Party redesignatcd first Secretary as the General Secretary.The Secretariat elected in 1971 had 10 secretaries with Brezhnev as the secretary. The Central Headquarters of the Party were organised in numerous sectionsand bureau which supervised Party activities and interests throughout the U.S.S.R. and to some extent throughout the world.Abolition of Politbureau and Orgbureau and Emergence of PresidiumThe nineteenth Congress of the Party effected a few very important changes in the organisation of the top structure of the Party. The Politbureau and theOrgbureau were abolished and substituted by a greatly enlarged body known as the Presidium. In the initial stages, the Presidium consisted of 24 membersand 11 alternates. After Stalin's death in March 1953, its number was cut down to 10 members and 4 alternates. In January 1965, it consisted of 11 fullmembers and 6 candidate members who were not entitled to vote except possibly in the absence of a full member. Obviously, the Presidium took over the functionsof the Politbureau and the Orgbureau. As such, it served as the centre of power in the Communist Party and the Soviet Government.Reemergence of PolitbureauThe 23rd Congress of the Party in its meeting held in 1966, abolished the Presidium and substituted in by the Politbureau to consist of 1191members and 8 candidate members. The 25th Congress of the Party raised the members to 14 and candidate members to 8. In 1971 it consisted of 15 membersand 6 alternates. It was presided over by General Secretary of the Party (Brezhnev).Party Control CommissionThe Party Control Commission which was popularly described as the "Collective keeper of the Party conscience," was in fact the discipline arm of the party.It was selected by the All-Union Congress. It kept the parly membership lists, inspected the meetings of committees and other organs to see that the partyline was not deviated from. It called before it for questioning party members suspected or accused of disloyalty. It served as a final court of appealin cases of expulsion and directed the execution of general purges.The Auditing CommitteeThe Auditing Committee was also elected by the Congress. It was charged with checking up of the finances of all the Central Party organs.The Affiliated Youth OrganisationsThe founders of the Communist regime were fully conscious of the fact that the ultimate success of their ambitious experiment would depend upon the supportthey could get from the younger generations which had known nothing of the struggles against the Czardom. Hence they believed in imposing Proletarian moralityupon the youth and even upon the children of tender ages.KomsomolsThe basic youth organisation was termed as "All-Union Communist League of Youth" - the Komsomol. It was the association of six, drawn from Communist aswell as non-Communist families. In 1951, its membership stood at 10 million. In February 1956, its membership was claimed to be nearly 18,500,000. In December,1967, their number went up to 2 crores and 3 lakhs. This organisation had its branches in schools, factories and the like. It is modelled on the Partyitself.The prime object of the organisation was to impart training to the youth in Communist doctrines and practices. The young Communist was tutored through Komsomolsthat all his life must be subordinated to the great aim - the crusade for the spread of Communism. In the words of Carter, the young comrade "is trainedin Marxism-Leninism, acts an agitator and should provide an example of devoted work." In fact, these Komsomols had exhibited great devotion to work duringthe stirring times of Civil War, the early five year plans and Khrushchev inspire92opening of new lands in the East. As a reserve and direct assistant of the Communist Party, the Komsomol educated the youth in the spirit of Soviet patriotismand actively assisted the party in the attainment of its objects in state and economic development.The Young PioneersThe young pioneers was meant for the children between the ages of ten and fifteen. More than 10 million children of the eligible age were its members. Politicalindoctrination was more intense at this stage. The "young pioneers assist the Party and the Komsomols in instilling spirit of love and devotion for thecountry and infusing proletarian internationalism in the young children."The pioneers were divided into links of eight to twelve members and brigades of about forty, each with its own leader. A brigade elected a council consistingof five, to represent it and work under the direction of a Komsomol leader.The Little OctobristsThe organisation of Little Octobrists was constituted of children between the ages of eight and ten. They functioned on the similar lines as the pioneers.In fact, they did not have precise tasks. A sense of responsibility and fellowship was inculcated in them at this age through group games and assignmentof duties of minor importance.They too were organised in links of five members with a "pioneer" as leader. Five links constituted a group of which an older youth who was member of the"Komsomol" was the 'leader'.Supporting OrganisationsAs already said, the vast majority of the Soviet citizens neither belonged to the Communist Party nor to the youth organisations. Hence support for theparty programme was apt to be traced through other agencies. Stalin made no secret about the affair when he emphasised that the dictatorship of the proletariatcould be accomplished only if the labour unions, the co-operatives and the Soviets actively assisted the Party.Trade UnionsThe Soviet Constitution emphasised the significance of these Trade Unions or the Labour Unions in unequivocal terms. They constituted the "School of Communism"and as such formed a link between the advanced and backward elements of the working classes and united the masses with their vanguard. They discussed problemsof production with the management of the factories and promoted cultural activities among labourers and maintained discipline among them. They imparted93education among the workers in the spirit of internationalism and fraternal solidarity with the workers of all countries. They administered state socialinsurance fund. They assisted the workers in the mitigation of their individual grievances.The Congress of Trade Unions formed the apex of these Trade Unions. It convened its meetings once in four years. During the recess of the Congress, TradeUnion work was conducted by All Union Cultural Council of Trade Unions which elected its own Presidium and also a Secretariat.Co-operativesThe Stalin Constitution recognised co-operatively owned property as one of the two forms of socialist property. The Soviet Law upheld co-operatively ownedproperty on the same basis as the state property.In the words of Stalin, these subsidiary organisations serve as "transmission belts" which enable the Party to maintain close contacts with the masses.Role of the Communist PartyAs already said in the preceding chapters, the Party held a pivotal position in the country. Its role in the socio-political system of the Soviet Unionhad been vital and of far-reaching importance. Revolting against and toppling down the capitalistic regime was its initial task which it performed veryadmirably. Consolidation of revolution and introduction of socialist economy were still more important tasks which it undertook and discharged conscientiously.We discuss below the role played by the Party in the U.S.S.R.As architect and defender of RevolutionThe Parly rightly professed itself to be the architect of the Socialist Revolution and the defender of the social order against its foreign enemies as wellas those at home. There is no denying the fact that after the withdrawal of the foreign enemies and the total annihilation of the anti-Bolshevik armies,the struggle was yet to be carried on against the foes of socialism in the country. The Bolshevik Revolution aimed at the establishment of a "classlesssociety." Hence the total elimination of the remnants of the old bourgeois class was indispensable. By 1936, the hostile classes were, in fact, completelyeliminated. Henceforth, the Party was to act as "watchman against the spies, assassins and wreckers whom foreign enemies were accused of sending into theSoviet Union."994Moreover, the Party had to defend the socialistic order against the capitalists' encirclement and possible invasion by the capitalist democracies. Despitethe fact that the big capitalist countries like the U.S.A. and Great Britain promptly joined hands with Soviet Russia to meet the onslaught of Nazi Germany,Stalin - the secretary of the Party - did not repose faith in them. He and the adherents of his personality cult continued warning the U.S.S.R. againstcapitalist invasion. Hence they exhorted the Party to remain vigilant and be ready to meet any eventuality. In the words of Carter, "The former allieswere repeatedly accused of plotting imperialist attacks, and the leadership of the Communist Party was proclaimed to be more important 'than ever to protectthe country against its enemies."10 Even at a later stage when the relations between the U.S.A. and the U.S.S.R. considerably improved, the Communist Partywas not reposing faith completely in the American capitalists. It could not remain the torch-bearer of the proletariat if it digressed from its path. Inthe words of Schapiro "It is the party which in official doctrine stands for the best and the most politically conscious citizens in the proletariat."11However during Gorbachev's time, USSR came closer to USA and cold war ended. However the hardliners could not tolerate the reformist. Hence there was abortiveattempt of coup resulting in end of the Party itself.The Party as the Educator and a Source of InspirationThe consolidation of socialistic order was equally difficult. The Party had to function as "the vanguard of the working people in their struggle to strengthenand develop the socialistic system."12 The establishment of socialism in a feudal country like U.S.S.R., the reparation of devastation caused by the civilwar, and the industrialisation of an agricultural country inhabited by illiterate masses to overtake and surpass the capitalist countries were very toughtasks of immense magnitude. "The result was a staggering, backbreaking task, calling for infinite fortitude, strain, sacrifice and devotion."13 Immediategains were to be forgone and for basking in the sunshine of prosperity, Russians were to be taught to put up with initial shortages. Heavy industry wasto be given priority over consumer goods industry. Production of clothing and other consumer goods and building of houses was to be postponed. Instead,natural resources were to be developed and the Russians were to be taught the technical skills of an industrialised society.In order to cope with such a gigantic task, the Party was to act as a guide, a teacher and an inspirer of the people. It had to explain to the95half-famished peasant and half starved worker why it was necessary to toil and sacrifice. It had to master the new skills and teach them to the people.It had to set an example of earnestness, courage, discipline and devotion. It had to educate the Soviet citizens to be ardent patriots, devoted to thecourse of Communism. It had to rouse the enthusiasm of disheartened and lagging workers and stimulate their effort by portraying the ideal of a new classlesssociety and by volunteering itself for the most difficult tasks. According to Carter, a communist member at all times, is to be "guide, watchman, teacherand animator, exhorting the masses and himself setting the example. In this way, the Party is to be an education and an inspiration to the whole of Russia."The Party is no longer simply the representative of the proletariat. According to the programme of the Party adopted in October 1961, "the Party is thevanguard of the entire nation." As such, the party was to be the guide for the toilers as a whole, the workers, the peasants and the intellectuals. Whilediscussing the functions of the Communist Party, Neumann says, "The function of the Communist Party emerges clearly from its role as the guide of the stateand the people. It is the spark-plug for all action in the public and sometimes in the private sector of Soviet life."14Party as the GovernorFinally, the Party led and directed the government of the Soviet Union. Outwardly, the Party and the government were distinct from each other. Both hadtheir separate organisations. Theoretically, the Constitution made a provision for Parliamentary Democracy. As such there existed a Council of Ministerswhich was elected by the Supreme Soviet and was responsible to it. The same pattern of government was adopted by the Units of the Soviet Federation whichwere said to have been equipped with great powers. Legally speaking the Supreme Soviet of the U.S.S.R. and the Supreme Soviets of the various Republicswere empowered to reject policies and proposals of the respective Council of Ministers. According to the Constitution, the Union Republics were allowedto pursue foreign policies which might differ from those of the Soviet Union as a whole.But legal truth was a political untruth. The Supreme Soviet of the U.S.S.R. and that of the Republic had never thrown out the Council of Ministers througha vote of no confidence. Both the Houses of the Supreme Soviet had never disagreed with each other. The Union Republics had never deviated from the policyfollowed by the Soviet Union in the foreign affairs. Most remarkable of all, these bodies had always unanimously agreed upon matters of policy and theline of96action they had to adopt to implement and further their socialistic programme.The question arises why such a remarkable unanimity was discernible in the working of these bodies. The explanation is not far to seek. Every politicalinstitution in the U.S.S.R. was under the control of the Communist Party. In the words of Carter, "Both in legislation and administration it is the Partywhich controls at all times deciding what is to be done, when it is to be done and how it is to be done and by whom." The Party was the supreme guidingenergy of the state. It was the leading core of all organisations of the working people, both public and state. Stalin-the architect of the 1936 Constitution- made this fact crystal clear when he said, "I must admit that the draft of the new Constitution leaves unchanged the present leading position of theCommunist Party of the U.S.S.R. If our venerable critics regard this as a shortcoming of the draft constitution, this can only be regretted." The BrezhnevConstitution also declared the Communist Party to be the leading and guiding force of Soviet Society and the nucleus of its political system, of all stateorganisations and public organisations. The Communist Party, armed with Marxism-Leninism determined the general perspectives of the development of societyand the course of the home and foreign policy, directed the great constructive work of the Soviet people, and imparted a planned, systematic and theoreticalsubstantiated character to their struggle for the victory of communism. In fact no important political and organisational problem was ever decided withoutdirectives from the Party. Government and Party were only on the paper, separate and distinct. In fact, they were one and complementary to each other.Officially, it was the government that made laws, issued decrees, formulated foreign policy, administered the country and controlled the police and themilitary forces. Actually it was the party that dictated and it was the government that obeyed. In the words of Schapiro "...it is from the party and theparty alone that all policy emanates at all levels."15 The higher officials were assertive not because they were holding the key positions in the Governmentbut they happened to be important political leaders of the Party. Stalin dominated the Russian scene like the huge colossus not because he held the positionof the Prime Minister but because he was the Secretary General of the Party. Khrushchev was both the head of the Party and the Government. It was in theformer capacity that he was ruling over the country. It is evident from another illustration as well. During the period when Bulganin was the Prime Ministerand Khrushchev the Secretary of97the Party, it was the latter who eclipsed the former in power and authority.Brezhnev who was re-elected as the secretary of the C.P. at the 15th session of the Congress held in February 1976, dominated the Russian scene. At a laterstage, he was appointed as Chairman of the Presidium as well. This was done for the first time in Soviet Union. Gorbachev was both the Secretary Generalof the Party and the Executive President. In fact, over 80 per cent members of the Supreme Soviet, all members of the Presidium and the Council of Ministers,were the important members of the Party. Hence, it is often "the Party and the Party alone that in practice can get things done."16The Party not only governed at the top but also permeated every institution in the country (except the churches) at every level. It exercised its controlthrough the cells which existed in every public institution of the U.S.S.R. and in the hierarchy of Soviets, trade unions and co-operatives.Ogg and Zink have thus summed up the ruling authority of the Party in these words: "Whether it be a five year plan, a veto of the Security Council proposal,a policy affecting labour or the press, the party in fact decides, the government receives the decision and carries it out." It may be pointed out thatStalin's death did not effect any change in the situation. Till the collapse of the party in August 1991 it ruled and the Government was a mere yesmenbody. Stalin's successors made no significant alterations in the relationship of the Party and government.References1. Stalin J., The Problems of the Leninism, p. 34.2. Carter, G.M. and Others, The Government of the Soviet Union.3. Ogg and Zink, Modern Foreign Governments, p. 812-13.4. Ibid., p. 815.5. Finer Herman, The Governments of Greater European Powers, p. 867.6. Ibid., p. 866.7. Fainsod, How Russia is Ruled, p. 124.8. Ogg and Zink, Modern Foreign Governments, p. 825.9. Carter, G.M., and others, op. cit., p. 67.10. Ibid., p. 67.11. Schapiro, L., The Government and Politics of Soviet Union, p. 75.12. Article 126 of Stalin Constitution.13. Carter, G.M. and others, op. cit., p. 68.14. Neumann, R.G., European, and Comparative Government, p. 506.15. Schapiro, op. cit., p. 76.16. Ibid., p. 76.989 SOVIET FEDERALISM AND THE REGIONAL GOVERNMENT"The Union of Soviet Social Republic pretends to be a multinational state or a Federal Union......"—Dr. FinerSoviet FederalismThe Soviet Union was a federal state. Brezhnev Constitution declared it to be an "integral, federal, multinational state formed on the principle of socialistfederalism as a result of free self-determination of nations and the voluntary association of equal Soviet Socialist Republics." The Soviet leaders tookpride in such a voluntary Union of the units constituting the Soviet Federation. They claimed it to be a distinctive feature of Soviet Federalism.Soviet Theory of FederalismA proper understanding of distinctive character of Soviet Federalism necessitates study of its basic theory. Prior to October Revolution, the Czarist governmentbelieved in exploiting the colonies groaning under their heels. They believed in Russification of the different peoples. Hence the inhabitants of thesecolonies which had distinct entities were always out to revolt against the Czars who in their turn suppressed such uprisings with an iron hand. When theBolsheviks succeeded in toppling the Czarist regime and capturing the power, they assured equality and sovereign rights to the peoples' of Russia and alsopromised them freedom to determine their form of government. From 1917 to 1923, Stalin who held the portfolio of 'Affairs of Nationalities' not only guidedthe colonial peoples of the old empires, to eradicate exploitation by the bourgeois, but also to establish independent government on socialist lines. Theearly constitution, framed in 1918, established the "Russian Soviet Federated Socialist Republic" and conferred autonomy99upon the national minorities in the Republic. These minorities constituted Autonomous Republic and Autonomous Regions inside the R.S.F.S.R.The federal principle was embodied in the Stalin Constitution as well. The new political structure of the Soviet Union was to consist of Union Republics,Autonomous Republics, Autonomous Regions and National Areas organised on the basis of nationality and minor national groups.It may, however, be said that Lenin and Stalin who claimed themselves to be the inheritors of Karl-Marxian ideology were in fact opposed to the idea offederalism. Lenin himself had declared, in 1913, "We are against federation on principle. It weakens economic ties, it is unfit for a single state." Forthe development of a true socialist state, centralisation was thought indispensable. But out of sheer necessity, Lenin had reconciled to the principleof national self-determination. During revolutionary upheaval, the nationalities of Russia had developed separatist tendencies and were torn from eachother. Hence, the Bolsheviks not only granted right of self-determination to each nationality but allowed them to secede from the Union if they so desired.Till the collapse of Soviet Constitution in December 1991, the right of secession existed at least in theory, in the Soviet Constitution. Lenin himselfwas vehemently opposed to the idea of secession. He often said, "We on our part, do not want separation at all. We want as large a state as possible."Hence it is obvious that the concept of federalism and right of secession of the Units were the outcome of mere expediency. Neumann has very well portrayedthe above view in the following words: "The Communist ideal is still one of the absolute unity but the Soviet leaders have learned that this goal can bereached only by indirect means..... the federal form of government, together with an emphasis on the preservation of national culture and the economicdevelopment of Non-Russian arms is more likely to win over these masses and thus pave the way to a fuller unity. The aim of federalism in the Soviet Unionis therefore the establishment of a truly unitary system." It is thus quite evident that in the U.S.S.R. federalism was not a rigid dogma or a final goal.It was in fact, a transitional form of state organisation. In the words of Lenin, Federalism was "a transitional form of the road to complete unity." Anever closer federation was thought essential by the Russian leaders for preserving the integrity of Soviet Russia, surrounded as it was by the capitaliststates equipped with strong military might.100Units of FederationThe Soviet Federation was a Union of nationalities and national groups organised in four types of units viz., Union Republics, Autonomous Republics, AutonomousRegions and National Areas. The Union Republics were analogous to the component units in other federations. There were at present fifteen Union Republics,namely, R.F.S.S.R. Ukrainian S.S.R., Byelo-Russian S.S.R., Azerbaijan S.S.R., Georgian S.S.R., Kazakh S.S.R., Armenian S.S.R., Turkman S.S.R., Uzbek S.S.R.,Tadjik S.S.R., Kirghiz S.S.R., Moldavian S.S.R., Lithuanian S.S.R., Latvian S.S.R., and Estonian S.S.R. These Union Republics were organised on the basisof nationality. Each Union Republic had been authorised to frame its own Constitution consistent with the Soviet Constitution.The Autonomous Republics, Autonomous Regions and National Areas existed within the Union Republic and enjoyed a certain degree of autonomy as they wereinhabited by a distinct nationality. Union Republics had, therefore, been termed as sub-federations within a federation and U.S.S.R. is described as afederation of federations.Features of Federalism in U.S.S.R.Before we discuss falsity of the Soviet federalism, it is essential to state those features of the Soviet federalism which induce the apologists of theSoviet Constitution to term it a true federalism.Division of PowerThere was clear cut division of powers between the Federal Government and the governments of the constituent units. The subjects assigned to the centralgovernment were specified in Art. 73. Residuary powers rest with the constituent Republics whose sovereign rights, freedom and independence were guaranteedby the Soviet Constitution. In this respect, Soviet Federation resembled American Federation.Federal jurisdiction extends to the following subjects:(a) Representation of the U.S.S.R. in international relations; conclusion, ratification and denunciation of treaties of the U.S.S.R. with other states;establishment of general procedure governing the relations of Union Republics with the foreign states. (b) Questions of war and peace. (c) Admission ofnew Republics into the U.S.S.R. (d) Control over the observance of the Constitution of the U.S.S.R. and ensuring conformity of the Constitutions of theUnion Republics with the Constitution of the U.S.S.R. (e) Confirmation of the formation of new Territories and Regions and also of new Autonomous Republics101and Autonomous Region within Union Republics. (g) Organisation of the defence of the U.S.S.R., direction of all the Armed Forces of the U.S.S.R., the establishmentof the directing principles of the organisation of military formation of the Union Republics. (h) Foreign trade on the basis of state monopoly. (i) Safeguardingthe security of the state. (j) Establishment of the national economic plan. (k) Approval of the single state budget of the U.S.S.R. and of the taxes andrevenues which fill the All Union Republican and the local budget. (l) Administration of the banks, industrial and agriculture establishments and enterprisesand trading enterprises of All Union importance. (m) Administration of transport and communications. (n) Direction of the monetary and credit systems.(o) Organisation of State Insurance. (p) Raising and granting of loans. (q) Establishment of the basic principles for the use of land as well as for theuse of natural deposits, forests and waters. (r) Establishment of the basic principles in the sphere of education and public health. (s) Organisation ofa uniform system of national economic statistics. (t) Establishment of the principle of labour legislation. (u) Legislation on the judicial procedure,criminal and civil codes. (v) Laws on citizenship of the Union, laws on the rights of foreigners. (w) Issuing of all Union Acts of amnesty.Supremacy and the Rigidity of the ConstitutionSupremacy of Constitution was another cardinal feature of Soviet Federalism. A special procedure of amendment had been provided to amend the Constitution- the fundamental law of the land. The Soviet Constitution - could be amended if two Houses of the Supreme Soviet, acting separately, by two-thirds majorityof its total members, agree to amend it. That reflects the rigidity as well as supremacy of the Constitution. Later on (after 1988) this power was to beentrusted to directly elected CPD.1 The Supreme Soviet no longer possessed this power of amending the constitution.Equality of Representation to the Similar Units in the Upper ChamberGenerally, in a federation, equality of representation was accorded to the units in the upper chamber. The U.S.A. and Switzerland were the examples. InU.S.S.R. also equality of representation was allowed to the units of similar status, though they differed widely in size and population. Even Union Republicwas represented by 32 representatives in the Soviet of Nationalities whereas the Autonomous Republic by 11 each. Each Autonomous Region was allowed tosend five and each Area one representative in the upper chamber.102Units Allowed to Have Separate ConstitutionThe Soviet Constitution had authorised its units to have their own Constitutions. These Constitution must, however, conform to the constitution of the U.S.S.R.Residuary Powers with the UnitsArticle 73 of the Constitution enumerated the various powers vested in the federal government and Article 75 laid down: "The Sovereignty of the Union Republicsis limited only within the provisions set forth in Article 73. Outside of these provisions each Union Republic exercises state authority independently."This established that the residuary powers were vested with the constituent Republics. In this respect, Soviet Federation bore very close resemblance withthe American Constitution.Voluntary UnionVoluntary union of the units composing the Soviet federation was acclaimed by the Russians, a rare characteristic of a federation. Vyshinsky describes theSoviet Union as a "free union of free peoples." Karpinsky declared it "a fraternal family of Soviet nations united voluntarily and on the basis of equality."Article 72 of the Constitution conferred right of withdrawal from the Union of these Union Republics. Such an unprecedented feature of Soviet Federalismis conspicuous by its absence in the bourgeois federations of the West. Russians took pride in such an important right granted to the units in the U.S.S.R.Special Rights Granted to the UnitsThe Union Republics were empowered to enter into direct relations with foreign slates and conclude treaties with them. They were permitted to organise theirown armed forces. In fact two of the Union Republics, Ukraine, and Byelo-Russia embraced separate membership of the United Nations under the same provision.No other federation except Switzerland had granted such rights to the units. But Swiss Cantons were allowed to enter into treaties of non-political natureonly.In addition to the above, the features of bicameral legislature and dual citizenship were also found in the Soviet Constitution.The unusual features of Soviet federation were: (a) The Union Republics had a right to secede from the U.S.S.R.; (b) The Union Republics could enter intoforeign relations directly; (c) The Union Republics participated in decision making by state bodies of U.S.S.R. The Chairmen of the Council of Ministersof Union Republics were the ex-officio members of the Council of Ministers of the U.S.S.R. The103Union Republics had also a right to initiate legislation in the Supreme Soviet of the U.S.S.R.Soviet Federalism in True ColoursKeeping in view the above facts, the Soviet writers claimed that their's was a federation of the real type. But in fact, it was a unitary government underthe guise of a Federation. In the words of Dr. Finer, "The Union of Soviet Socialist Republics pretends to be a multinational state or Federal Union. Inreality it is a highly unitary state, tending strongly to obliterate the national features of its minorities after having liquidated their independentgovernment and economy."2 Professor K.C. Wheare is also not prepared to accept U.S.S.R. "as a working example of a federal government."3 In fact, Sovietfederalism was a mere window-dressing. It was an attempt to disguise the unitary form of government that actually prevailed in U.S.S.R.Right of Secession - a FarceThe right of secession of the Union Republics from the federal union was a big hoax. The right was undoubtedly proclaimed but, in reality, any tendencyto exercise it or even to propose that it be exercised, was dubbed as a counter-revolutionary move and was ruthlessly suppressed. The Soviet Judiciaryhad always interpreted efforts of withdrawal as traitors' activities. According to Florinsky, the exercise of this right is, "effectively prevented bythe structure of the Soviet State and the Communist doctrine of government."4 Even Stalin himself made a contemptuous reference to this "right to secede.""They would fall prey to the imperialist powers," he said. In the words of Finer, "always, since 1917, the declarations and Constitutions have proclaimedthe right of the nationalities to secede. But they have never been allowed even to murmur much less secede."5Unreality of Special RightsThough the Constitution permitted the Union Republics to have their own military forces and develop independent relations with the foreign countries, yetthe all Union Government was empowered "to establish general procedure governing the relations of Union Republics with Foreign powers" and lo determine"directing principles governing the organisation of the military formations of Union Republics." A critical analysis of this power makes it clear thatthe "All-Union Government had the upper hand both in the foreign affairs and defence." Thus the so-called autonomy of the Union Republics in these affairswas more formal than real.104Centre Excessively StrongNo doubt, powers had been divided between the centre and the units. But the powers given to the centre were so numerous and so imposing that no other federationstood comparison with it. Such vast and broadly ill-defined powers of the centre induced Florinsky to describe All-Union government of the U.S.S.R. asa colossus bestriding the Russian world and making the country a highly centralised state. It narrowed the field of the Union Republics to a considerableextent. In fact, states of U.S.A. and Cantons of Switzerland enjoyed far greater an authority than the Soviet Republics. In the words of Dr. Finer, "Inthe U.S.S.R., the Constitution leaves the Republics and autonomous regions, etc., virtually no independent sphere of authority at all."Interference of the CentreApart from being excessively strong, the Centre was equipped with the power of invading the sphere, reserved to the Union Republics. In case of a conflictbetween an All-Union law and a Union Republic law, the former prevailed. The Supreme Soviet of the U.S.S.R. on the recommendations of the Credential Commissioncould endorse or annul the election of deputies. The Presidium of the Supreme Soviet could annul the decisions of the Council of Ministers of the UnionRepublics, in case they did not conform to the Soviet Constitution. The Council of Ministers of U.S.S.R. had the power of suspending the decision of theCouncil of Ministers of Union Republics. Moreover the central government exercised control over "Union Republics through Union Republican ministries ofthe All-Union Government, with the Council of Ministers of the Union Republics."No Independent Financial Resources of the RepublicsIn the words of Dr. Finer "the surest guarantee of day-by-day federal diversity is the possession of independent power to raise taxation with tax sourceseither unlimited or trivially limited only and the power of formulating expenditures without external restrictions." Such a freedom has been guaranteedto the state in the U.S.A. But in U.S.S.R. the All-Union government was responsible for national economic planning which dominated all economies. As suchcentre alone was empowered to regulate the allocation of taxes and revenues to the Union Republics and the lesser territorial units of the government.Unlike that of American Senate, the Soviet of Nationalities was not authorised to differ from the Soviet of the Union about the Budget on behalf of theNational Areas.105Supreme Soviet's Supreme AuthorityAccording to the Constitution, the Supreme Soviet of U.S.S.R. was empowered to alter the distribution of the powers between the Centre and the Units. Itcould curtail the powers of the Union Republics.The Party System Makes the Soviet Government CentralisedAs already discussed in the preceding chapter, U.S.S.R. was a one Parly stale. The Communist Parly dominated it. The administration of the country was underthe effective control of the Party. The legislative and the executive branches of government of both the Union and the Union Republics were dominated bythe staunch adherents of the Communist Party. This all pervading control of the Party which was itself a monolithic organisation, made the Soviet systemof Government highly centralized and greatly integrated.No Judicial SupremacyJudicial Supremacy is an essential feature of a federation. But in U.S.S.R. tha so-called Supreme Court was deprived of the power of judicial review whichwas the exclusive monopoly of the Presidium of the Supreme Soviet of U.S.S.R. The Presidium and later on constitutional inspection committee was the finalinterpreter of the laws of the U.S.S.R. It had the final say on the question whether a particular law passed by the Republican Legislature conflicted withthe Union Law. In the U.S.A. such a power is vested with the federal courts. Lack of judicial supremacy is unlike that of a true federation.Moreover, the supervisory powers of the Procurator General - the chief legal officer - were so extensive and his authority so pervasive that he constitutedan integral organ of the state power. Such a centralistic position of the Procurator General had no parallel in any Federal scheme of Government.Special Representation to nationalities in the Soviet of Nationalities of no practical useThere is no denying the fact that the interests of the various nationalities had been safeguarded through the upper chamber by according equal representationto fifteen Union Republics in it. But in fact, these Republics could hardly protect their interests by having the privilege of equality of representationin the Soviet of Nationalities. The reasons are quite obvious. Free political parties were not allowed to exist in the Republics or other so-called autonomousregions. In fact, they had been crushed. Hence, "it is impossible for the nationality of area to break through the iron blanket of the Communist Parlywith all the106instruments of terror at its disposal."6 The wholesale purges and "brain washings" in the Republics of Ukraine, Georgia, and Kazakhistan, on account ofan attempt to exercise freedom of expression were the eye-openers. Moreover, both the Houses of the Supreme Soviet met twice a year and that too for aweek or so. How could the interests of the Nationalities be protected when the upper chamber was to meet for such a short duration? It may be said thatduring the recess of the Supreme Soviet, the Presidium which consisted of representatives of the 15 Union Republics functioned (Prior to 1988). Of course,it is true that the members of the Presidium hailing from these Republics were the high officials of the Communist Party in each of their areas. Hencethese representatives always danced to the tune of the party bosses of the Republic who themselves toed the line of the Politbureau of the Party-the apexof dictatorship located at the centre.In the United States on the other hand, the senators are elected on the labels of both the parties functioning in the Constituent units. It enhances theconstitutional guarantees of the indestructibility of the states. The states themselves enact the laws of the election for Congress. In the U.S.S.R. "thesingle party renders such constitutional guarantees negatory."7Supremacy of the Constitution - A HoaxThere is no doubt that all the Soviet leaders proclaimed the Constitution as the fundamental law of the land but the dictatorship of the proletariat heldan authority which was unlimited by any statute whatsoever. Molotov, once an important minister of the Soviet Union, confessed that the Constitution ofthe U.S.S.R. was to be subordinate to the dictatorship of the proletariat but it was the dictatorship of the proletariat which laid down the legal formsof conduct of which the Constitution was the foremost but by no means the only expression. The Soviet Constitution, therefore, emerged as a tool of thedictatorship of the proletariat or of the political forces which controlled it, not as a limitation upon the dictatorship.Keeping in view these realities pertaining to Soviet federalism - the unified economy, the monopoly of the Communist Party, lack of supremacy of the Constitutionand the Judicial Review, the uniformity of political and administrative institutions, excessive authority of the centre, we can conclude that Soviet federalismexisted only in theory but not in practice. Moscow dominated not only in political and economic fields, but also in the domain of art and language. TheSoviet schools were forced to teach the predominance of great Russian107Culture. It is, therefore, correctly said, "Russia has left the nationalities their language, but abolished their nationality."8 Gorbachev made an attemptto usher in era of openness and restructure polity but the abortive coup by the hardliners against Gorbachev led to the end of the Party disintegrationof the country and collapse of Soviet Union. The Commonwealth of Independent states which took the place of Soviet Federalism also soon came to an end.Regional GovernmentsThe Government of the Union RepublicsThe U.S.S.R. consisted of fifteen Union Republics. Each Union Republics, irrespective of its size, population and economic resources enjoyed parity withthe rest of the Republics as regards its rights and political privileges. As already said in the preceding pages each Union Republic had been allowed toframe its own Constitution which must be in conformity with the Soviet Constitution. At least, in theory, each Union Republic had joined the Federationon its own accord and could withdraw from the Union whenever it deemed fit. Moreover, each Republic was allowed to have its own military forces and enterinto foreign relations with the other countries of the world and make treaties with them. The Constitution guaranteed territorial integrity of each Republic.No alteration in its boundary could be effected without its consent. In fact, the Republics neither enjoyed such an independent status, nor could be assertive.Their powers were hedged with so many restrictions that the so-called authority of these Republics was reduced to a mere farce.Administrative Structure of the UnitsLegislature: The Supreme Soviet was the highest organ of the state power in the Union Republic. It was elected by the citizens of the U.S.S.R. for fiveyears. The number of citizens constituting a constituency in a Republic differed from Republic to Republic.The Supreme Soviet was termed as the highest legislative organ of the Unit. Its functions were as under:(a) Adoption of the Constitution of the Republic; (b) amending the Constitution; (c) confirming the Constitution of the Autonomous Republics located inits territory and defining its boundaries; (d) approving the national economic plans and the budget of the Republic; (e) granting amnesty and pardon topersons convicted by Judicial Courts of the Republic; (0 deciding questions of representations of the Union Republics in the international relations; (g)determining the manner of organising the Republics Military formations; (h) adopting the laws on108the Courts and judicial procedure in the Republic and also its civil and criminal codes; (i) electing members of the Presidium and the Council of Ministersof the Republics.The Presidium: (Prior to 1988) The Supreme Soviet elected its Presidium which consisted of a President, Vice-President, a Secretary and members. Generally,it consisted of 11 to 17 members. During the intervals of the Supreme Soviet, the Presidium carried on its work. The powers of the Presidium which weredefined by the Constitution of the Union Republic were more or less the same as vested with the Presidium of the Soviet Union.The Council of Ministers: The Council of Ministers was the highest executive organ of the Republic. It was appointed by the Supreme Soviet of the UnionRepublic and was accountable to it. During the recess of the Supreme Soviet, it was appointed by the Presidium and was responsible to it. It consistedof a Chairman, Vice-Chairman, the Chairman of the State Planning Commission, the Chairman of the State Security Committee and five other ministers.Powers of the Council of Ministers: The Ministers possessed the power of direction and control over the departments which are kept under them.They were empowered to issue orders and instructions on the basis and in the execution of the laws of the U.S.S.R. and the Union Republics. In fact theseorders must be consistent with the laws of the U.S.S.R. and the Union Republics.The Council of Ministers of a Republic was to carry out the decisions and orders of the Council of Ministers of the U.S.S.R.It was authorised to suspend the decision and orders of the Council of Ministers of the Autonomous Republics if located in the said Union Republics.It possessed the veto power over decisions and orders of the executive committees of the Working People's Deputies of Territories, Autonomous Regions andNational Areas.Since 1944, the Union Republics had been empowered to have their military organisations and conduct their foreign relations independently of the CentralGovernment, subject to general guiding principles laid down by the Supreme Soviet of the U.S.S.R. Conferring of such apower on the Union Republic automaticallyenhanced the jurisdiction of the Council of Ministers.Autonomous Republics: The Soviet Constitution guaranteed to each nationality fullest opportunity for its development. Hence a109nationality constituting a minority within the Republic was fully entitled to set up autonomous administration of its own within the Republics. Though theAutonomous Republic was a unit in the Union Republic yet it exercised independent state power within the territory. Each Autonomous Republic was authorisedto frame its own Constitution subject to the ratification of the Supreme Soviet of the Union Republic of which it happened to be a part. Moreover, itsConstitution must conform to the Constitution of the U.S.S.R. and that of the Union Republic concerned.The pattern of administration in the Autonomous Republic bore very close resemblance to that of the Union Republic. Supreme Soviet -the highest organ ofstate power - is elected for a period of five years. It elected the Presidium and appointed a Council of Ministers. The Council of Ministers of the U.S.S.R.was however, fully empowered to suspend the decisions and the orders of the Council of Ministers of the Autonomous Republic. Similarly, the laws of theU.S.S.R. and that of the Union Republic were binding within the Autonomous Republic, though it could make laws on the subjects assigned to it.There were twenty Autonomous Republics.Autonomous Region: The voluntary union of a few thousands of people desirous of governing their affairs themselves and retaining their identity, constitutedan Autonomous Region. The organ of state power in the Autonomous Region was termed as Soviet of Working People's Deputies. It was elected by the workingpeople for two years in accordance with representation quotas fixed by the Constitution of the Union Republic. It enjoyed the constitutional right of self-government.Its functions: Its primary functions were - (a) to direct the work of the executive organs subordinate to them; (b) to ensure the maintenance of publicorder, the observance of the laws and the protection of the rights of the citizens; (c) to direct local economic and cultural affairs; (d) to draw up localbudgets; (e) to issue orders as required and permitted by the laws of the U.S.S.R. and the Union Republics.There were eight Autonomous Regions.National Areas: A national area formed a part of the Autonomous Region. It came into existence when numerically small number of Soviet people voluntarilyagreed to constitute it. Each National Area had its Area Soviet of the working people's Deputies and also an Executive Committee. An ordinance definedtheir powers which were subject to approval by the Supreme Soviet of the Union Republic concerned as well. The Council of Ministers of the Union Republicwas110fully empowered to annul the decisions and orders of the Area Executive Committee.There were 10 National Areas, (all in R.S.F.S.R.), in U.S.S.R.References1. Election to CPD took place in March 1989.2. Finer, Herman, Government of Greater European Powers, p. 817.3. Wheare, K.C., Federal Governments, p. 27-28.4. Florinsky, Miachael T., Governments of Continental Europe, p. 845.5. Ibid, p. 819.6. Finer, Herman, op. cit., p. 822.7. Ibid, p. 823.8. Ibid, p. 825.11110 DEMOCRATIC CENTRALISM"In Democratic centralism, centralism has primary significance."—FainsodThe principle of democratic centralism was a guiding angel of the Party and governmental organisation and procedure in the U.S.S.R. and also of inter-relationshipbetween the higher and lower Soviets. It is acclaimed as the original contribution of the Soviet Union. In the words of Vyshinsky "The Soviet Union Staleis built on the principle of democratic centralism sharply opposed to the bureaucratic centralism."1What it MeansOn its face, the principle seems to be paradoxical and illusory. Democracy and centralism contradict each other. In any case, they do not make happy companions.In the U.S.S.R., however, the Democratic Centralism is construed as a system of government in which local units or organs of government enjoyed virtuallycomplete independence in managing their own affairs and were provided ample opportunities of participating in activities of higher units or organs of government.It undoubtedly made the system democratic. At the same time, the higher governmental bodies exercised the powers of formulating basic policy and of supervising,checking and vetoing the acts and decisions of those below them. It reflects "centralism" in the system. Talking of autonomy enjoyed by local units, Oggand Zink say, "There is literally nothing that they cannot do if they like - which on the surface would seem to make home-rule cities in the United Statesblush with shame at their lack of freedom."2 Referring to excessive centralism they opine: "...The local units do exactly as they like as long as the agentsof the government which are above them do not object."3 Vyshinsky emphasised the same112facts. In his opinion democratic centralism in U.S.S.R. ensured local self-help and independence by taking stock of the singularity and the demands of separateparts of the state. Simultaneously, it attempted to unite these parts by common conscious will and by common interests and tasks. Thus democratic centralismpresupposed centralism in basic questions, in general guidance, in the maximum unification of economic activity according to one statewide plan."4How it Differs from Bureaucratic CentralismThe Russians claim that their democratic centralism differed fundamentally from bureaucratic centralism that prevailed in the western capitalistic democracies.In bureaucratic centralisms, real control lies in the hands of officials who arc not responsible to the people. Uniformity, under such a system, is imposedfrom the top. Democracy in such a system exists only in name, as power is exercised by the officials who are isolated from the people. Democratic centralismon the other hand, it is claimed, not only leaves considerable initiative with the local units but also vests authority with the popularly elected representativeswho are always answerable to the people. In the words of Vyshinsky, the principle of democratic centralism, as it prevails in the U.S.S.R., signified that"each organ of authority, being formed by a procedure at once democratic and logical is responsible to its electors and is bound to execute their will,while at the same time it is responsible to superior organs of authority and bound to fulfil all their orders, provided they are given within the limitsof their respective jurisdiction."5Democratic Centralism in PracticeIn a complex governmental system like that of the U.S.S.R. it was a tough task to ascertain how democratic centralism worked in actual practice. The apologistsof the Russian Constitution are proud of this substantial contribution they have made to the mechanism of government whereas the emigrees and critics areof the opinion that there was more emphasis on centralism than on democracy in the erstwhile U.S.S.R. In the words of Ogg and Zink, the critics go to theextent of saying that "absolutely no leeway is permitted by the Central authorities and by the Communist Parly and that Russia is under the yoke of anabsolutism that makes other totalitarian systems seem fairly liberal." According to Fainsod, "In democratic centralism, centralism has primary significance."In fact, both the critics and the admirers of the systems have gone to the extreme. The Soviet system did make an effort to combine the advantages of localautonomy and central control.113Of course the central control was rather excessive but a certain amount of freedom in routine affairs of a strictly local character could hardly be denied.Let us now discuss how the principle of democratic centralism worked in the Soviet Federation, hierarchy of Soviets and the working of the Communist Party.Soviet Federal System and Democratic CentralismAs already discussed in the preceding chapter, the Union Republics enjoyed considerable autonomy, at least in theory. According to the Constitution, theUnion Republics exercised state authority independently in all matters except those which had been specifically entrusted to the All-Union Government.They had been allowed to have their own defence forces and conduct foreign relations independently of the Centre. They were permitted to secede from theUnion.In reality, not only the Centre had been armed with plenitude of powers, immensely wide and substantially imposing, but also equipped with controlling authorityover the autonomy of the Union Republics. For instance, the All-Union Governments laid down the general procedure governing the relations of Union Republicswith the Foreign Powers and determined the directing principles governing the organisation of the military formation of the Union Republics. Any attemptto withdraw from the Union was treated as a counterrevolutionary crime. In case of conflict between the All Union Law and a Union Republican law, the formerprevailed. The Council of Ministers of the U.S.S.R. could suspend the decisions of the Council of Ministers of the Union Republics. The Presidium of theSupreme Soviet could annul the decisions of the Council of Ministers of the Union Republics, if they conflicted with the Soviet Constitution. The UnionRepublican Ministries of All-Union Government exercised considerable control over the Ministries in the Union Republics. (For more details consult thepreceding chapter).Even in the sphere of economic planning, the basic policy and general outlines of the economic set up of the entire country were under the central control.No doubt, the Union Republics were allowed to have initiative in the sphere of planning but that had to be adjusted and co-ordinated in accordance withthe over-all economic policy of the central authorities. Towster Julian has very well portrayed centralisation in planning in these words, "The plans forthe economic development of the national administrative units are required to be an integral part of and fully co-ordinated with the economic plan of theU.S.S.R."6114Even in the cultural sphere though the nationalities inhabiting the Republics had been given considerable freedom in matters relating to language, customs,and way of living, yet no pains had been spared in achieving uniformity in the proletarian content of national culture. The schools of the Soviet Unionwere compelled to teach the predominance of Great Russian Culture. The words of Stalin are worth quoting to support our contention: "The national culturesmust be permitted to develop and expand to reveal all their potential qualities in order to create the conditions necessary for the fusion into a singlecommon culture with a single common language."7 Thus in the economic, political and cultural spheres, the U.S.S.R. pretended to be a federal union butin fact it was a highly centralised state "tending strongly to obliterate the national features of its national minorities after having liquidated theirindependent government and economy."8In the hierarchy of SovietsDemocratic centralism worked in the hierarchy of Soviets as well. The democratic principle was quite obvious from the fact that each Soviet was composedof elected representatives and was accountable for its activities to the people. Since every Soviet was subject to the over ruling power of the Sovietabove it, centralism also did not remain masked. Towster has well described the operation of democratic centralism in the hierarchy of Soviets in the followingwords: "It means an upward stream of political intelligence, suggestions and accounting from the lower organs and a downward stream of laws, decrees andinstructions from the apex or central organs."9 In 1988 amendments a directly elected body—Council of Peoples' Deputies was created. It was the Super parliamentand was all powerful. Its direct election reflected Democracy and its supervisory power over all other organs indicated extreme centralisation.In fact even constitutionally speaking the Supreme Soviet of the U.S.S.R. and its Presidium and later CPD were the ultimate sources of guidance though inactual practice, the central organs of the Communist Party dominated the Soviets spread in the various parts of country. Thus the predominance of centralismeven in this sphere was quite evident.10Democratic Centralism in the PartyThe principle of democratic centralism applied to the inter-relationship between the tiers of the party pyramid, which had in the "cells" as its base andPolitbureau as the apex. Party organisations in the rural and urban districts, areas, regions, territories, Autonomous Republic and Union Republics camein between the base and the apex of the Party. As115applied to interrelations of Party organs at different levels in this hierarchical structure of the party, the principle of democratic centralism meant(a) election of all the Party governing bodies from bottom to the top; (b) periodic accountability of Party bodies to their Party organisations; (c) strictparty discipline and subordination of the minority to the majority; (d) the decisions of higher bodies unconditionally binding upon lower ones.The first three point (a to c) indicate that the party was constituted on democratic basis. The fourth point (d) reflected 'centralism' in the working ofthe Party. In fact the decisions arrived at the top could not be challenged by the lower party organs. Criticism, was allowed only on the way, a particularpolicy emanating from the apex of the Party - the Politbureau was implemented. Neither the criticism of the top leaders of the Party, nor of the policyitself was permitted in the lower Party organs. The devices of criticism were thought indispensable as they served as an "actual or potential prod to theinefficient venal or irresponsible Party government administrators."11 But no destructive criticism could be launched against the Party leaders. Even constructivecriticism could be directed only against the leaders of lower organs of the Party. Fainsod is fully justified in describing it a military hierarchy inwhich policy directions come from central command and the obligation of the subordinate is to carry them out. In the words of Finer. 'The Communist Partyis not an organisation with democracy at work within its own operation. It is a dictatorship within itself, its intention and nature masked with the speciousslogan, 'democratic centralism."12 In fact the Soviet leaders demonstrated great ingenuity of brain in using the trappings of mass democracy to mask theentrenched position of the dictatorial elite which dominated both the Soviet Government and the Party. Constitutional myth and symbols were very skilfullyused to contribute to the illusion of mass participation and mass control. But "the political realities of Soviet life speak the unmistakable languageof a one Parly dictatorship in which ultimate power is deposited in a narrow ruling group."13 However in Gorbachev era, openness in the party was discerniblebut the hardliners could not tolerate it. Hence an attempt of coup against Gorbachev a liberal reformist and a democratic leader, was made though it wasfoiled by civic demonstration supported by Yeltsin. Thereafter the party ended.References1. Vyshinsky, A.Y., The Law of the Soviet State, p. 230.1162. Ogg and Zink, Modern Foreign Governments, p. 849.3. Ibid.4. Vyshinsky. A.Y., op. cit., p. 230.5. Ibid. p. 424.6. Julian, Towster, Political Power in the U.S.S.R., p. 86.7. Stalin, J., Marxism and the National Question, p. 261.8. Finer, Herman, Governments of Greater European Powers, p. 817.9. Julian Towster, op. cit., p. 207.10. See last Chapter for CPD.11. Fainsod, M. How Russia is Ruled?, p. 182.12. Finer, Herman, op. cit., p. 868.13. Fainsod, M., op. cit., p. 187.11711 NATURE OF SOVIET POLITY"If this be democracy then democracy is the most shameless thing on the earth."-BrukeU.S.S.R. was a democracy - is a moot question which has entailed lot of controversy amongst the Soviet writers and the western critics. According to Stalin,"U.S.S.R. is a through-going democratism." Vyshinsky describes U.S.S.R. as "a democracy of a higher type." The Western critics like Adams John, Dr. Finer,Fainsod, are not prepared to accept it as a democracy at all. In the words of Fainsod, "The political realities of Soviet life speak the unmistakable languageof one party dictatorship in which ultimate power is deposited in a narrow ruling group." Before we come to any great conclusion, we will have to makea dispassionate analysis of both the extremities.Basis of Russian Claims(a) Mass ParticipationRussian claimed that if democracy meant mass participation of people in governmental affairs, U.S.S.R. was highly democratic. They had allowed universaladult franchise. Every adult who was eighteen years of age, without any discrimination on the basis of caste, colour, creed, wealth or sex, was allowedthe right to vote. In other democratic countries like U.S.A. and India the age prescribed for a voter is twenty one. That established superiority of Russiandemocracy over other democracies of the world. Moreover, it was claimed that Russian citizens were so much politically conscious of their right to votethat more than 99 per cent of them had always exercised vote in the general elections of the Supreme Soviet. In the western democracies, on the other hand,approximately 50 per cent to 60 per cent voters caste their votes at the time of election.118Likewise right to contest elections had been allowed to citizens who were 23 years of age. Here again Soviet Union went a step ahead of other western democraciesas the latter permitted citizens of 25 years of age or more to contest election.(b) Parliamentary Type of GovernmentSupreme Soviet - the highest organ of the Soviet Union before 1988 was analogous to the British Parliament. It was said to be the "exclusive legislativeauthority," and the "highest organ of the Soviet Union" according to the constitution. After 1988 CPD took precedence over it as it was directly electedbody and termed super parliament. The Council of Ministers — the executive of the Soviet Union - was responsible to the Supreme Soviet and during the latter'srecess was responsible to the Presidium - a committee elected by the Supreme Soviet. The Chairman of the Council of Ministers was analogous to the PrimeMinister. This amply reflected the parliamentary character of the Soviet democracy. Even after 1988 amendments the parliamentary structure remained unchangedexcept the inception of CPD and the Supreme Soviet holding sessions for 3 to 4 months each time. Thus it became more akin to the western parliaments.(c) Provision of Social, Economic and Political RightsThe Russians were proud of their Chapter of Bill of Rights. They claimed it as "one of the most extraordinary Bills of Rights ever known to history." Realdemocracy could exist only if economic rights were also guaranteed alongwith the civic rights. According to Stalin, "Liberty can exist only where exploitationhas been abolished, where there is no oppression of some by others. Where there is no unemployment and poverty, where a man is not haunted by the fearof being deprived of work, of home and bread. Only in such a society, is real and not paper, personal and every other liberty is possible." The RussianConstitution guarantees right to work, right to rest and leisure, right to social insurance, right to equality between men and women, right to educationand racial equality. Work in U.S.S.R. was deemed a worship, and not a drudgery. Unlike that of American democracy, where Negro problem haunts the vastsection of dark complexioned population, African democracy where colour bar persists, Russians assured perfect equality to all nationalities. The Russianscompared their economic democracy with the perpetuation of disparities between the 'haves' and 'have nots' in the capitalist countries which posed themselvesto be the torch-bearers of democracy. Article 9 of the119Brezhnev Constitution declared that the principal direction in the development of political system of Soviet society was the extension of Socialist Democracy.Besides social and economic rights, the Russians had been assured civic freedoms as freedom of speech, freedom of conscience, freedom of press, freedomof forming unions, inviolability of homes, freedom of correspondence and personal freedom. However, such freedoms must conform to the interests of theworking classes. Moreover they did not exist for political criminals.(d) Autonomy to the. unitsThe Russians contended that their's was the only federation which allowed the units autonomy to the maximum possible extent. They were allowed to secedefrom the union as well. They could conduct their own independent foreign relations and keep their own forces. Union Republics like Ukraine and Byelo-Russiahad entered into independent relations with the United Nations. They had been kept at par with each other, as regards their representation in the upperchamber, irrespective of their size and population.(e) Elected JudiciaryThe Russians asserted that they were more democratic than western democracies in this respect also. Judges in U.S.S.R. were not appointed by the Executivebut were elected by the Supreme Soviet, in case of Supreme Court of the U.S.S.R. and by the Supreme Soviets of Union and Autonomous Republic in cases ofSupreme Courts of Union and Autonomous Republics respectively. The Judges of the Peoples' Courts were elected by the people themselves.(f) Democracy in Soviet HierarchyThe Russians opined that democracy was discernible even in the hierarchy of Soviets. A higher Soviet was elected by the Soviet immediately below it andwas answerable before the latter as well. The Soviets at the lowest level were elected by the people themselves.(g) Democracy in the PartyThe Party which was said to be the "vanguard of the whole people" and which was the ruling body in actual practice was also democratically constituted.All party organs from "cells to Politbureau" were elected. The higher party organ was accountable to the lower one which elected it. It established democraticworking of hierarchical structure of the Communist Party.120(h) Referendum and RecallReferendum and recall, the direct democratic devices, had also been provided in Russia. If on any Bill the differences between the two Houses of the SupremeSoviet remained unreconciled the said Bill could be placed before the people for their vote. The recall of deputies of the Supreme Soviet had also beenpermitted.Western Critics' ViewsThe western Critics often indulged in utter denunciation of Russian democracy. They used to explode the myth of the Russian democracy by refuting all argumentadvanced by the apologists of Russian democracy.(a) Mass Participation a FarceVote is meaningless if only one candidate is to contest the election. In U.S.S.R. only a political favourite got party ticket. His election was a foregoneconclusion when none else was allowed to stand against him. Election became a hoax and electors going to the polling station to vote for the only candidatelooked absurd and exposed mockery of election procedure itself. In these circumstances, voter was reduced to a mere instrument in the hands of the CommunistParty to parade futility of Russian democracy. Likewise, the right to contest elections became the privilege of fortunate few who could dance to the tuneof the Communist Party bosses.(b) Parliamentary Democracy in theory onlyRussian parliamentary democracy was a parliamentary democracy only in theory. Sound and effective opposition - the very soul of parliamentary democracy- was conspicuous by its absence in U.S.S.R. Existence of only one party in a democratic country reduced its very democratic character into a mere farce.Moreover, it is contended by the critics that responsibility of the Council of Ministers to the Supreme Soviet or its Presidium during the recess of thelatter was in actual practice nonexistent. The ministers remained ministers so long as they enjoyed the confidence of the Politbureau, in fact, the SecretaryGeneral of the Communist Party who dominated the politbureau. The main principles of Parliamentary type of government - i.e. collective responsibility,leadership of the Prime Minister, individual responsibility of the ministers to the legislature - were conspicuously absent from Russian parliamentarydemocracy.(c) Immunity of rightsCivic freedoms were absolutely non-existent in U.S.S.R. Freedom of speech or expression was meant for those who eulogisted Russian121political system and raised to the mystical heights the party bosses. Nobody could utter a word against top party leaders or the policy emanating from these"Sir Oracles." Press was a tool in the hands of the Party to disseminate communist ideology amongst the Russian masses. Mass executions and tales of lingeringdeaths in concentration camps were quoted to prove the fallacy of the provision of these rights. The miserable lot of Trotsky, Malenkov, Beria, Molotovand scores of other communist leaders bore ample testimony to the fact that civic freedom in U.S.S.R. was trampled under the heels of the Russian dictators.An example of denial of freedom of expression was evident from the examples of the famous novelist, Mr. Pasternak, who was awarded the 'noble prize' forliterature for his illuminating work - Dr. Zhivago - a satire on Russian way of life but who was awarded sentence of exile from his native land if he expressedkeenness to accept the said prize. In the words of Vyshinsky "there is and there can be no place for freedom of speech, and press for the foes of socialism."Obviously all those who differed from the communist leaders at the top were the enemies of socialism. Freedom of religion also existed only on the paper.Anti-religious propaganda was encouraged though religious propaganda was disallowed. Allegiance to a particular religion deprived the people of prominentposition in the party as well as in the government.As regards economic rights also, Finer was of the opinion that, "Russian leaders wrested authority from the Czars and usurped it to give to the people afew crumbs baked on guns and revolvers." A worker in U.S.S.R. was enslaved to work. Ideal working conditions like rest houses and health resorts were meantfor the "heroes of the labour" - the leaders of the Party. Only in the recent past thousands of workers in Central Siberia struck against the managementon account of inadequate wages paid to them.The critics asserted that the insurance schemes in U.S.S.R. were imposed upon the workers, whereas in the western democracies their unions were invitedbefore such schemes were envisaged.Racial equality was also reduced to a mere mockery when the lot of a vast number of non-believers of the Communist ideology were kept in mind. They weredubbed as traitors, wreckers and saboteurs. They were mercilessly persecuted and most callously treated. Did they not constitute 'anti-communist' racein themselves? Why equality of treatment was completely obliterated from mind when anti-communist section of people was to be dealt with?122(d) Election of Judiciary Impaired its IndependenceElection of judiciary was hardly a commendable step. Instead elected judges were likely to become puppets in the hands of their selectors whosoever theymight be. Judiciary in U.S.S.R. was in fact the "sharpest weapon of the dictatorship of the proletariat." Its main job was to safeguard Soviet socialistsystem and take to task those who deviated from the communist line.(e) Autonomy of Units a FarceOnly a lip homage was paid to the autonomy of units. The units enjoyed autonomy to the extent the centre desired it. Centralisation in federal sphere wasextremely excessive. The right of secession from the union was hardly a reality. In fact it was treated as a counter-revolutionary crime. No Unit couldfollow an independent foreign or defence policy as the general principles were laid down by the Central Government. In case of a conflict between the twothe All-Union law prevailed over the Union - Republican laws.(f) One Party System - Negation of Democracy The critics opined that one party system negated political democracy altogether. The Russian constitution considered the Communist Party as the leadingcore of all the organisations and the vanguard of the people. This was highly undemocratic. According to Florinsky, "The essence of political democracyis the right to express freely opinions which do not agree with those of the group in power, organised opposition is the most vital element of a moderndemocratic system." Not to allow any other party on the plea that antagonistic interests did not exist in U.S.S.R. was hardly acceptable. Even the workingclasses embracing communist ideology might have difference of opinion on varied matters. Hence they might crave to have other political parties. The presentsplit in the International Communism had proved beyond any doubt that even 'Marxist-Leninist' ideology was subject to different interpretations. Moreover,the explosion of the myth of infallibility of the party line was evident from the reign of terror which prevailed during Stalin's era and the shabby treatmentmeted out to those who interpreted Marxist ideology differently and also from the De-Stalinisation which ensued after Stalin's death. The critics thereforeconcluded that the existence of more than one party was essential for the very survival of democracy.They did not accept the idea of democracy in the party either. Seemingly, the party did have a democratic structure but in actual practice the SecretaryGeneral of the Party assisted by his 'yesmen' constituting the Politburcau ran the whole show. In the words of Dr.123Finer "The Communist Party is not an organisation with democracy at work within its own operation. It is a dictatorship within itself, its intention andnature masked with the specious slogan "democratic centralism."(g) Referendum and Recall Also Exist Only in NameNeither of them had been put into practice. For the legislative measures, referendum was never resorted to. Recall could be resorted only when Party sowished.On the basis of all these facts stated in the foregoing paragraphs the western critics quote Burke in denouncing Russian democracy. "If this be democracy,then democracy is the most shameless thing on the earth."ConclusionAn analytical appraisal of the Russian views and also of western critics makes us conclude that both have indulged in exaggerations. To call erstwhile U.S.S.R.a thorough going democratism is rather a tall talk. Provision of economic rights is not enough. Man does not live by bread alone. A true democracy doesnot aim at providing crumbs to the masses at the cost of their conscience and civic freedom. However, abolition of glaring disparities between the highand the poor, and eradication of unemployment could hardly be under-estimated. With the lifting of iron curtain and launching of a vigorous campaign against'personality cult' after the demise of Stalin, a trend towards liberalisation of totalitarian regime was quite discernible. With the march of time, itcould be hoped, that "proletarian dictatorship" would be replaced by a "socialist state of the whole people." With the dawn of era of collective leadershipin U.S.S.R. and their advocacy of peaceful co-existence with other democratic nations the outright denunciation of the Russian democracy had been considerablytoned down. An atmosphere of mutual understanding and give and take was gradually developing. It was therefore, hoped that with the elapse of time progressivedemocratisation of the U.S.S.R. was apt to take place. No doubt, Russian democracy had been functioning with in the iron framework of the Communist Party.According to Fainsod constitutional myths and symbols have been skilfully used to contribute to the illusion of mass participation and mass control. Reallyspeaking these trappings of democracy failed to mask the entrenched position of the dictatorial elite which dominates both the Soviet Government and theSoviet Party, at least at present. However in Gorbachev's regime the ushering in era of democratisation and openness was an established fact. The two124Institutions 'Glasnost' and Perestroika' opened a new Chapter in the history of Soviet Union. It was fast heading towards democratisation but the hardlinersin the party could not tolerate the wave of democracy fast sweeping over their land. Hence they conspired and tried a coup to overthrow Gorbachev. Thecoup proved abortive. The Civil demonstration in the country in favour of Gorbachev amply demonstrated the trend of democratisation. The Party was disbanded.It is however ironical that with the abolition of the Party, the Soviet Union was disintegrated like a House of cards. The republics became independent.12512 PROCEDURE FOR THE AMENDMENT OF THE CONSTITUTION"Each of our Constitution has been a further step forward in the development of the Socialist Soviet state, a new phase in the development of socialistdemocracy."—BrezhnevProcedure before 1988The procedure for amending the Soviet Constitution was said to be rigid in keeping with the principle of federalism. Article 174 of the Constitution laiddown the procedure. According to this article two-thirds of the total members in both the Houses of Supreme Soviet was required to amend the constitution.Obviously, the requirement of a two-thirds majority made the constitution rigid at least in theory. If we compare this procedure of amendment with thatof amendment procedure of Indian constitution we are convinced that the procedure so specified gave an air of rigidity to the Soviet Constitution. Therequisite two-thirds majority of the total members seemingly made the constitution of the U.S.S.R. more rigid.In actual practice, however, what is a legal truth was a political untruth. The Supreme Soviet was a legislature dominated by the representatives electedon the label of the Communist Party - the only party allowed in the country. Hence what to talk of two-thirds majority, even 100 per cent majority is easilyobtainable on any amendment contemplated by the Party houses. This makes the constitution fairly flexible.Moreover, the procedure for constitutional amendment as described in Para I, is not always employed as the Supreme Soviet was in session for a very briefspell of time. Informal amendments in the constitution were often made by the Presidium of the Supreme Soviet126during the latter's recess and formal approval was sought whenever the Supreme Soviet met. Such a type of thing is inconceivable in India or the U.S.A.Examples of such informal amendments through the decrees of the Presidium make it crystal clear that some of the vital alterations in the constitutionwere effected through the decrees of the Presidium. For instance the Presidium through its decrees raised the age of the Deputy of the Supreme Soviet from18 to 23 years. The newly elected Supreme Soviet at a later stage, ratified the said decree, in the form of a formal amendment of the constitution. Likewise,fees were imposed for higher education in 1940, in contravention of Article 121, through a decree. The defence and foreign affairs were allocated to theUnion Republics and family legislation was assigned to federal government in 1944 through a decree. In 1946, the number of additional members of the Presidiumwas reduced to fifteen. All these changes were formally incorporated in the constitution through constitutional amendments in 1947. All this had happeneddespite the fact that the legislative power of the U.S.S.R. "is exercised exclusively by the Supreme Soviet of U.S.S.R." In fact there had been a big divergencebetween theory and practice in U.S.S.R. Hence, to Russians, it was immaterial whether Presidium or the Supreme Soviet amended the parisonA comparison of amendment procedure of the Soviet Union with U.S.A. and Switzerland made Herman Finer remark, "what is of more importance in the constitutionalguarantee over the amending powers to safeguard minority independence is that the revisions by the Soviet be ratified by the people." In the United States,Australia and Switzerland, amendments are not only subject to ratification by the people through referendum but also a majority of states is required toratify them. In the U.S.A., for instance, three-quarters of the state legislatures or special conventions must approve the amendments. It is an extremelycomplex system as the smallest state in the union may impede a change in the U.S. Federal form against States. In Switzerland also approval by the cantonsand the people is essential for effecting an amendment in the Constitution. That was not the case in the U.S.S.R. Approval by two-thirds majority in boththe Houses of the Supreme Soviet hardly made the constitution rigid because both the Houses were dominated by the members sponsored by the Communist Partyin the country. They were apt to agree without any possibility of difference of opinion, as they toed the party line.127Procedure after 1988The amendment of the Constitution after 1988 could be effected by directly elected congress of Peoples Deputies which consisted of 2250 members. This bodywas constituted in March 1989. The Supreme Soviet was deprived of this power. However no comment on it may be made as the prevalent political system endedwith the disintegration of USSR two years or so after.12813 SOME IMPORTANT STRUCTURAL AMENDMENTS SINCE 1988The introduction of two terms (i) Perestroika which meant restructuring of society and economy and (ii) Glasnost which implied openness in decision makingin Soviet Union, exhibited a new thrust in Soviet Politics and economy. It aimed at emergence of greater democracy, rapid socio-economic changes, restructuringof economy and removal of stagnation. The General Secretary of Communist Party, Mikhail Gorbachev, who took over in 1985 was the soul behind this bloodlessrevolution. In his words, "Perestroika is no whim on the part of some ambitious individuals as a group of leaders." The Soviet Society was ripe for change.According to Gorbachev, "it has long been yearning for it. Any delay in beginning Perestroika could have led to an exacerbated internal situation in thenear future which to put it bluntly, would have been fraught with serious social, economic and political crisis."Glasnost is derived from Russian word 'Golos' which means voice. Literally it signifies 'voiceness' or 'having voice'. In other words freedom of expressionwhich has been long denied was now restored. An atmosphere of 'openness' dawned. Gorbachev's reforms (1985) emphasised the use of Glasnost for the media,the party leadership and the man in the street. Thus the iron curtain was lifted and there ensued the era of all round openness. By 1988, both Perestroikaand 'Glasnost' became the watchwords of the Soviet people. After 70 years, people got an opportunity to criticise their past and the present rulers.All this led to the effecting of sweeping political reforms. The 12th special sessions of the Supreme Soviet in November - December, 1988 effected importantamendments in the Constitution. A super-parliament termed as Congress of Peoples' Deputies was set up. The New Supreme Soviet was to be indirectly electedby the newly created Congress of People's Deputies but it was to function more effectively than before.129The Chairman of the Supreme Soviet was to be the executive President. The elections were to be on the basis of multiplicity of candidates. The electionsunder the new law were held in March 1989. For the first time in 70 years, people could exercise political rights fearlessly. Some of the Party candidateswere defeated and non party candidates elected.Congress of People's Deputies (CPD)Gorbachev effected greater democracy through CPDs at different levels. The Congress of Peoples Deputies at the Centre was to be the highest representativebody. It was to be elected for 5 years. It was to consist of 2250 members out of whom (i) 750 were to be elected from territorial constituencies, (ii)750 were to be elected from national -territorial electoral districts (32 from Union Republics, 11 front each Autonomous Republic, 5 from Autonomous Regionsand 1 from Autonomous Area, (iii) 750 were to be elected by All Union public organisations in accordance with quota fixed by law. Out of 750, 100 fromthe Communist Party, 100 from cooperative organisations, 75 from All-Union Leninist Young Communist League, 75 deputies from womens' council; 75 from organisationsof war and labour veterans; 75 from association of engineers, scientists etc., 75 deputies from unions of architects, designers, journalists, writers,film makers and 75 members from other public organisations set up by law.ChairmanThe Chairman of the Supreme Soviet of the USSR was to be the highest functionary. The sessions of the Congress of Peoples' Deputies were to be presidedover by him. Gorbachev - the General Secretary of the Party assumed the chairmanship of the Supreme SovietFunctionsA brief enumeration of main functions of CPD is as under: (a) Adoption and amendment of the Constitution of the USSR, (b) Decision making on questions ofnational and state structure of USSR, (c) Determination of the boundaries of the country and endorsement of changes of borders between the Union Republics,(d) To define and determine the guidelines for the domestic and foreign policies of the USSR, (e) Approval of long term state plans and most importantnational programmes for the economic and social development, (f) It elected several bodies and functionaries of state viz. members of Committee for constitutionalsupervision, the chambers of Supreme Soviet and Chairman of the Supreme Soviet and endorsed the appointment of Prime Minister, the Chairman of Peoples'Control Committee of the130USSR, and the Chief Arbitrator of the Soviet Union, (g) If deemed essential, it could ask for nation wide referendum, (h) It could revoke any law enactedby the Supreme Soviet, (i) It could consider and resolve any issue within the competence of the USSR.Role of CPDA critical appraisal of CPD enables us to come to certain conclusions (a) It was truly a representative body, the only directly elected organ of the AllUnion Government. Speaking before the Supreme Soviet in December 1988, Gorbachev remarked "— we arc creating a new very authoritative representative bodyof power that will reflect all the national territorial and social interests of society, the entire pluralism of views, opinions and requirements."(b) It symbolised sovereignty of people though its role, practically speaking could not be effective on accounts of it being an unwieldy body, composedof 2250 members; its most infrequent sessions and that too for a very brief duration, the existence of Supreme Soviet as permanently functioning legislative,administrative and control body1; and the predominant role of the Communist Party and its chairman.Thus the CPD was more of a formal and decorative organ. It could hardly claim to be the highest body of the state authority. Though it was to be a mirrorof varied interests, it was considered doubtful whether or not it would be able to translate into action "entire pluralism of views, opinions and requirements."The later events showed that pluralism became the basis of Soviet polity. Much against the expectations of the critics the Soviet Voters exercised theirright to franchise freely, when the first Congress of Peoples' Deputies was elected in March 1989. Even how official candidates got elected and a sizablenumber of the communist candidates suffered defeat. Thus the myth of the people behind the party stood exploded. The erstwhile Soviet Union seemed to bein the process of more dynamic revolution.The Supreme SovietPrior to 1988 the Supreme Soviet was constitutionally speaking the highest organ directly elected, its lower House represented the people and the upperthe nationalities. All other organs were elected by the Supreme Soviet and were responsible to it. Since 1988, the CPD was designated as the highest body- in fact the only body directly elected by the people. In a way the Supreme Soviet was now to enjoy secondary position, the CPD holding primacy over it.131Its CompositionIt was not a directly elected body. It was to be elected by CPD and was accountable to it. Both the Houses were to consist of 271 members each. The Sovietof Union—its lower House, later named as Council of Union, was elected out of People's Deputies representing territorial electoral districts and the deputiesrepresenting public organisations. The size of electorate in each Republic determined the member of representations to be chosen from each Republic.The Soviet of Nationalities, later termed as Council of Nationalities, represented various nationalities - 11 from each Union Republics 5 from each AutonomousRepublic, 2 from each Autonomous Region and 1 from each Autonomous Area.TenureThe Supreme Soviets' tenure like that of its predecessor was 5 years. One fifth of its members retired after every year and were reelected by CPD.Each Chamber elected a Chairman and two deputy chairman. The Chairman presided over their respective chambers. However the joint session of the SupremeSoviets was presided over by the Chairman of the Supreme Soviet of USSR or his first Vice Chairman. In case neither of them was present, the joint sessionwas to be presided over alternately by the Chairman of the Soviet of the Union and that of the Soviet of Nationalities.SessionsPreviously the Supreme Soviet held two session and that too for short duration. No session lasted for more than 10 days. Hence Presidium functioned duringthe recess of the Supreme Soviet.After drastic amendments in 1988, the President was required to convene two sessions of the Supreme Soviet in a year. Each session lasted for 3 to 4 months.Besides regular sessions, it could convene special sessions, in case emergency so necessitated.FunctionsAs already said the Supreme Soviet ceased to be the highest organ after 1988 amendment. The CPD was a apparently the highest body - the super parliament.The Supreme Soviet required was to play second fiddle. Though it still exercised numerous important functions, it could no longer have any share in theamendment or adoption of the Soviet constitution. The following were its main functions:132(i) To organise elections of the CPD (the first such election was held in March, 1989.)(ii) On the suggestion of the Chairman of Supreme Soviet (The General Secretary CP) it appointed the Chairman of the Council of Ministers, Chairman of thePublic Inspection Committee, the Chairman of the Supreme Court of Soviet Union, Procurator General, the Chief State Arbitrator of the country. Howeverall such appointments were subject to approval by the CPD. Obviously the functions of the Supreme Soviet were more formal than real.(iii) It elected the members of the Council of Ministers on the suggestion of the Prime Minister and could make changes in them.(iv) It could appoint and dismiss high command of the armed forces on the proposal of the Council of Ministers.(v) It could appoint Committee of Public Inspection and also the members of the Supreme Court.It may be remarked that the officials and leaders appointed or elected by the Supreme Soviet were accountable to it and could be removed by it.(vi) All the economic activities of the country viz. Budget, national economy were to be regulated by it.(vii) It ensured the rights and freedoms of the Soviet people.(viii) It ratified and renounced the international treaties concluded and signed by the Chairman of the Supreme Soviet (the President).(ix) It exercised control over granting of loans and rendering economic and other assistance to foreign countries.(x) It ensured defence and security of the state. As such, it could order partial or total mobilisation.(xi) It could declare war in the event of attack on Soviet Union or when it was deemed essential to meet international treaty obligations. It could alsoconclude peace.(xii) It instituted military and diplomatic titles and medals. However they were awarded by the Presidium.(xiii) It issued an All Union Act of Amnesty for a large number of offenders. Power of pardon was with the Presidium.(xiv) It could revoke the decisions of the Presidium, the directive of Chairman of the Supreme Soviet (President) and the decisions of the Council of Ministers.It could also revoke the decisions of the Council of Ministers of the Union Republics if they failed to conform to the laws and constitution of the SovietUnion.133(xv) Its legislative powers were also impressive. It could enact laws on all the principal economic, political and cultural matters in the Soviet Union.None was given veto power over legislation. No organ of the Government possessed judicial review authority. However, since 1988 constitutional InspectionCommittee had been empowered to examine the constitutional validity of Bills before they became Acts. Moreover, there was a constitutional requirementthat the law and decisions adopted by the Supreme Soviet might not contradict the laws adopted by CPD. This established subservient position of the SupremeSoviet and supremacy of the Congress of Peoples' Deputies.(xvi) The Supreme Soviet not only enacted the laws but also was the final interpreter of the same.Normally this power should have been vested with the judiciary.ConclusionThe powers mentioned in the preceding paras reflect that the Supreme Soviet was the permanently functioning legislative administrative and control bodyof state authority of the USSR.' It might not have been 'super parliament' it was actual parliament of the Soviet Union. The Supreme Soviet could playan important role in the political system which had undergone a seachange since the emergence of concepts of 'Perestroika and Glasnost'.Prior to 1989 the Supreme Soviet was a mere ratifying chamber as it met twice a year and that too for a week each. The Presidium was termed as continuousgovernment. It functioned during the recess of the Supreme Soviet. The Communist Party in fact had tight grip over all governmental institutions supremeSoviet being no exception.After the election of CPD in March 1989 as the highest state organ, the position of Supreme Soviet in fact improved. It exercised greater authority andwielded more powers than its predecessor. Its sessions lasted for about 6 to 8 months in a year. Hence the Presidium ceased to be effective and the CPDperformed only formal functions during its brief annual sessions. The Supreme Soviet played the role of a democratically elected parliament. It enactedlaws, elected officials removed them from offices ratified and renounced treaties, decided on the questions of war and peace. However, its role also wasapt to remain limited in case the Communist party had to wield the ultimate authority. But unlike its predecessor it was not to be a mere ditto chambera ratifying body. In the words of Gorbachev it was to be "a continually functioning supreme soviet." It was likely to play a more meaningful role thanthe Chinese People's Congress.134The President (the Chairman of the Supreme Soviet) initiator of 'Perestroika' and Glasnost was keen to have an executive President. The 19th Party Conferenceheld in June 1988 accepted the idea. The decisions was later implemented through amendment in the Constitution in 1988. However the incumbent was neitherto be designated President of Soviet Union nor head of the State. Article 120 of the Constitution made a provision for the Chairman of the Supreme Soviet- the highest ranking official in the state. This designation made him the President though without formal designation of the President or the powers vestedwith him as in USA or France.ElectionHe was to be elected by the CPD from among its own members. No specific qualification was laid down for the office. The 19th Party Conference decided thatthe General Secretary of the Party would hold the office of the Chairman. Thus Gorbachev - the General Secretary of the Party held the office. Electionof the President by the CPD seemed more or less a formality. In March, 1989 election, 12 members of the Party voted against Gorbachev. That reflected thedawn of era of openness in USSR.TenureThe Chairman of the Supreme Soviet (Soviet President) was to be elected for 5 years. He could not be re-elected for more than two consecutive terms. Thusordinarily the Soviet President was not to hold office for more than two terms consecutively. In other words after a break he could take chance again.AccountabilityHe was accountable to CPD and Supreme Soviet though he was removable by the CPD only by secret ballot.Functions of Chairman of Supreme Soviet (Parliament)The President enjoyed a unique position. He was neither as powerful as American President nor as ceremonial or weak as Indian President. He was vested withlimited functions which are enumerated below:(a) To suggest the name of a suitable person to the CPD for the office of first Vice Chairman.(b) To suggest the names of members of the Constitutional Inspection Committee to the CPD.(c) To suggest the name of Prime Minister to the Supreme Soviet.(d) To propose to the Supreme Soviet names of the candidates for election, as chairman of the Public Inspection Committee of135USSR, chairman of the Supreme Court of USSR. Procurator General of Soviet Union, and the Chief State Arbitrator. The persons so proposed were apt to beelected by the Supreme Soviet They were to be presented to the CPD for approval by the President.(e) To preside over the meetings of CPD joint sittings of the Supreme Soviet and the President of the Supreme Soviet.(f) To sign all the laws enacted and other decisions taken by CPD, the Supreme Soviet and Presidium. He could not refuse his assent. He could not exerciseveto on any decision of these bodies.(g) To submit to the CPD and the Supreme Soviet reports on the state of the country and important issues of soviet domestic and foreign policy and of safeguardingthe USSR's defence capability and security. It could be favourably compared with messages of American President to the Congress.(h) To head the Defence Council of the Soviet Union. This gave him status of Supreme Commander of the Defence forces of the country.(i) To represent the country in international relations. Thus in foreign affairs he acted as the President of a Democracy. He had to receive foreign ambassadorsand heads of foreign states. He negotiated treaties. All treaties were to be signed by him.Role of the Soviet PresidentIt is difficult to pass any judgment on the role of the Soviet President as by December 1991, the USSR ceased to exist as USSR and got disintegrated. Howeveran analysis of his powers and the dynamic personality of the incumbent who held this office revealed that this highest ranking official who happened tobe the General Secretary of the Communist Party was apt to play conspicuous role in the Soviet political system. Though his functions were not as impressiveas that of the American President yet they were not insignificant either. He was head of the state, spokesman of nations' foreign policy and a presidinggenius of all pivotal legislative and policy making bodies of Soviet Union. He combined in himself the headship of the country and superspeakership oflegislative and representative bodies. He performed divergent roles, viz. selection of candidates for top bodies, policy formulation, conduct of domesticand foreign affairs and management of the Communist Party. In case Soviet Union had not been dismembered and Gorbachev met his incredible fall, the President136would not have proved a figure head. He would have been the wielder of internal and external policy, initiator of legislation and a true leader of the entirepolitical process. All this would have accorded him an unparalleled position and a comparable status as head of the state.The Presidium of the Supreme SovietBefore 1988 amendments, the Presidium used to be termed as the collective head of the state - the Collegians President. It was continuously in session asit was required to function during the recess of the Supreme Soviet which met twice a week and that too for a period of one week. Now the Supreme Soviethad to meet twice and for a period of 3 to 4 months each time. Besides, its powers apparently had been eclipsed by directly elected body - Congress ofPeople's Deputies. Thus the Presidium which functioned in the absence of the Supreme Soviet was no longer an important body. It ceased to be collegialpresident as Chairman of the Supreme Soviet was designated as head of the State. It was to be no longer an elected body. Its members were to be ex-officio.Its CompositionIt was to consist of unspecified number of members. It comprised Chairman of the Supreme Soviet, the first Vice Chairman of the Supreme Soviet, 15 ViceChairmen representing 15 Union Republics, the Chairman of Soviet of Union (now Council of Union) the Chairman of Soviet (now council) of Nationalities,the Chairman of Committee of Public Inspection and Chairman of all the Committees of the Supreme Soviet and Chairmen of the Standing Commissions of thetwo chambers. Thus it was to consist of all powerful Soviet President and 15 Vice Chairmen—the Chairmen of their respective Union Republics. The numberof the rest of the members was not specified, hence its exact composition could not be stated.Its ChairmanThe Chairman of the Supreme Soviet of the USSR presided over its meetings. In his absence, the Presidium was to be presided over by the first Vice Chairmanof the Supreme Soviet.Its functionsAs already said, with the establishment of CPD, with the longer tenure of sessions of the Supreme Soviet and with the institution of office of Soviet President,the Presidiums' authority was eclipsed and its wings clipped. The Council of Ministers was no longer accountable to the Presidium. It could no longer annulthe decisions of the Council of137Ministers of the USSR and that of the Union Republics. It could no longer institute honours or titles, it could only confer them.Article 118 declared that the Presidium would ensure organisation of the work of Congress of Peoples Deputies of the USSR and the Supreme Soviet of theUSSR and exercise other powers vested in it by the constitution and laws of the USSR. Following are its functions:LegislativeDuring the recess of the Supreme Soviet, the Presidium adopted decrees having the force of law. Most of the laws were approved by the Supreme Soviet andsome by the Congress of People's Deputies. When neither of these bodies were in session, laws were adopted by the Presidium. It was required to publishthe laws and other acts approved by CPD. The Supreme Soviet, the Presidium itself and the Chairman of the Supreme Soviet in the languages of Union Republics.It was a routine function.Executive(i) It convened sessions of the Supreme Soviet. It could call special sessions as well at its discretion or on the proposal of the Chairman of the SupremeSoviet on the request of one of the Union Republics or the request of not less than 1/3 of the deputies of one of the chambers of the Supreme Soviet. (ii) It made preparation for the sittings of the Congress of People's Deputies and sessions of the Supreme Soviet.(iii) It coordinated the activities of standing commissions of the chambers and committees of the Supreme Soviet(iv) It appointed ambassadors and other diplomatic representatives of the Soviet Union in other countries. It could recall them as well. The foreign diplomaticrepresentatives presented their credentials to it though the letters of credence were actually received by the Chairman of the Supreme Soviet. The Presidiumcould expel any ambassador or diplomatic representative if not acceptable to the Soviet Union. (v) It could order general or partial mobilisation when Supreme Soviet was not in session.(vi) It could declare war in the event of armed attack on Soviet Union or to fulfil international treaty obligation.(vii) It could declare martial law or state of emergency in the country or Republic in the interest of defence of the country and security of its citizens.(viii) It conferred highest military and diplomatic ranks and other titles. Likewise orders and medals instituted by the Supreme138Soviet were awarded by the Presidium to the outstanding citizens. Honorary titles were also confirmed by it.JudicialIt ensured observance of the Constitution. In other words, it had to ensure that laws and constitutions of the Union Republics conformed to the Soviet Constitution.If reflects that the Presidium was empowered to annul any Union Republican law or constitutional provision which violated the Constitution of the SovietUnion. This power is vested with Supreme Court in USA.Miscellaneous(i) It made preparations for nation wide discussions on draft laws or other important matters of state.(ii) It could organise referendum on any law or matter of public importance if it became essential.(iii) It could grant citizenship to a foreign national at its discretion.(iv) It could deprive an undesirable citizen of citizenship of Soviet Union.(v) Foreign nationals seeking asylum in Soviet Union could apply to the Presidium. Asylum was to be granted by it.(vi) It had the power of granting pardon to individual criminals. Amnesty was to be granted by the Supreme SovietRoleAfter the constitutional amendments in 1988, the Presidium had been reduced to a mere shadow of its former self. The emergence of directly elected super-parliament— the CPD, the changing role of the Supreme Soviet and the longevity of its sessions and the creation of the office of an executive President resultedin minimisation of the importance of the Presidium. However, the Presidium did function during the recess of the Supreme Soviet. As pointed out in thepreceding paras, it still possessed legislative, executive and judicial powers. In certain areas, its role was formal and purely of ceremonial nature.Publication of laws, making preparations for holding of referendum, arranging for the sittings of the CPD and the Supreme Soviet were only formal and colourlessfunctions which could have been entrusted to the civil services as well. Till the collapse of Soviet Union in December, 1991, the Communist Party had itsgrip on this truncated institution as well. Gorbachev—the General Secretary of the Party happened to be its chairman and guided its deliberations. Thatadded to its strength and enhanced its prestige.139In fact, 2 to 3 years period is not enough to judge the real position and role of an institution viz-a-viz other Institutions particularly in a CommunistCountry where party predominated, and party General Secretary was the executive President the Chairman of the CPD and also the Presidium. The end of thepolitical system and fall of the leader, led to the extinction of USSR—once a super power and emergence of Commonwealth of independent states — once termedas the Union Republics though it proved to be a transient phase. The Communist Party which dominated the political scene since October Resolution lostits hegemonic role in the politics of erstwhile USSR which had meteoric rise and a steep fall. The loose confederal structure - Commonwealth -proved tobe a House of Cards! Whether or not Gorbachev will rise to the occasion and save the disintegrated country from turning into hydra-headed monstrosity,only futurity can vouch safe for it. Likewise the future role of the Communist Party (a body of die herd Marxists) is a matter of pure speculation. Theushering in of era of "Glasnost' and 'Perestroika' followed by the disintegration of the country and the fall of the reformist Leader is yet to be politicallyevaluated by the global leadership in general and the adherents of socialism in particular. It is however shocking that a super power bearing socialisticpolitical system is now extinct and reduced to a mere mythical entity.21988 Electoral LawPrior to 1988 elections in USSR were a big force. One candidate for one seat formula, was adopted which made the socalled thorough democratism a big mockery'.With the democratisation process initiated by Gorbachev, Electoral law also underwent a drastic change. The Electoral Law provided for multi-candidate electionthough within one party system. It says that the number of candidates nominated for election shall not be limited. The above provision, however, actuallymeans that any number of candidates may be proposed for discussion at election meetings. After discussion one or more name, may be registered with theElectoral Commission.The Electoral law provisions referred to free uncontrolled election. The people were entitled to campaign for or against a candidate at meetings in thepress on television and radio. This type of freedom did not exist before the initiation of process of 'Glasnost' by Gorbachev. If there was one candidatein an Electoral district, the voters at the time of voting could vote for him or against him. If there were two or more140candidates, voters could score out the names of the candidates, they did not wish to vote for.Provision of Central Electoral CommissionThe Soviet Election Law 1988 made a provision for Electoral Commission for holding elections of People's Deputies at various levels. The Commission consistedof a chairman, 2 deputy chairmen, a secretary and 31 members. The Central Electoral Commission was appointed by the Supreme Soviet of USSR for a periodof 5 years. Its members were to be neither the members of the Supreme Soviet or the CPD.It exercised control throughout the territory of the Soviet Union, coordinated the functioning of various electoral commissions and ensured observance ofthe Election Law. It was to hold repeat elections and the bye elections. It considered petitions and complaints against the discussions and actions ofother Electoral Commissions. Its rulings on such cases were final. It heard reports by ministries, state committees and government departments and otherpublic organisations on questions pertaining to elections.First Glasnost Election 1989The first democratic elections for 2250 members of CPD were held in March 1989. For the first time in the history of USSR, free and democratic electionswere held. The result of elections showed an impact of Glasnost-openness and democracy in practice. Some of the voters noted against the official candidates.They registered their negative votes by scoring out the name of the candidate. Gorbachev himself secured 12 negative votes in his election to Super Parliament.There was absolutely no apprehension that negative vote would make voter a pinprick in the eyes of the Party. In 1989 elections only in 385 constituenciesthere was only one candidate. In the remaining 1,115 constituencies, there were 2 or more candidates. There were 2900 candidates in the field, for directelection of CPD.It was a real exercise in democracy. Yeltsin a person sacked from party post 2 years earlier won from Moscow city constituency defeating Brakov - a ChiefExecutive of luxury car manufacturers by massive majority. There were demonstrations in Yeltsin favour on the streets of Moscow. In Baltic states, theofficial candidates were defeated by the candidates of popular fronts. Millions of voters voted freely in multi candidate election. Gorbachev asserted"the electoral law that we passed has justified our hopes. It has advanced the political thought and141social activity of the people." Election results indicated that electors exercised freedom to elect their representatives without any coercion. In manyconstituencies the Communist Party candidates suffered big reverses. In the Baltic states in particular (Latvia Lithuania, and Estonia) the Party candidateswere badly defeated. In Ukraine also the party suffered a great setback. Many party functionaries failed to secure the bare minimum of 50 per cent of votesto get elected. City Mayor of Moscow fell in this category. A politbureau member of RSFSR -Borotinkov won by a narrow margin.All these facts revealed that emergence of freedom to choose their representative was the greatest contribution of Gorbachev to the Soviet Society. IgorMozheicko remarked, "Everything is changing before our eyes in this fantastic world". In its Editorial the Times of India wrote? "...dissent has gaineda place of honour in a profoundly conformist society. The signal success of ousted Moscow Party Chief Boris Yeltsin, show that courage wins rewards...the average citizen has turned him into a hero. The example he has set will undoubtedly encourage others to follow suit". In fact, after seven decades,Soviet Union broke the shackles of conformist system and regimentation and opted for political pluralism. For the first time, the Soviet voter was freeto vote or not to vote for or against a candidate nominated by the Party. The soviet people accepted 'glasnost' and clung to it. It is irony of fate thatSoviet Union has ceased to exist and the Union Republics have become independent states.Return of the Reds?A significant development has occurred in the recent past after the collapse of Soviet Union and Yeltsin emerging as the tallest leader of Russian Federation.The second election to Duma—the lower House of the Russian Parliament—will go down in the history as the most significant event in Russia since the Bolshevikrevolution. The Parliamentary poll has thrown up the Communist Party as the Party with the biggest popular following—22 per cent vote. This has happenedwhen market forces are at full play in Russia. In fact, the performance of the Communist Party and the Liberal Democratic Party marked the triumph of twovital truths—(a) Russians may welcome economic reforms but not of a kind that keeps the vast majority famished and which may result in the emergence ofan island of a "few filthy rich" (b) friendship with the West to welcome but not at the cost of self respect, i.e., to earn the benign smile of Americans.These elections reflect not142communism at no distant future.3However "red dawn" over Moscow on July 4, 1966 could not take place as Yeltsin won a commanding victory over his Communist challenger—Gennady Zyuganov.In the decisive second count of voting for the Presidency, over 105 million voters repudiated Zyuganov's bid to restore communism in Russia.4Anti-American TrendPresident Yeltsin has been indulging in anti American statements in the recent past and rapidly moving to build stronger friendship in Europe and Asia tocompensate for the increasingly strained relations with the USA. He warmed the USA against any invasion of Iraq. He stressed the importance of bilateralrelations with France, Britain, Italy and Canada on the one hand and then extended a hand of friendship to China emphasising the value of strategic partnership.In October 1997 he greeted India's Defence Minister in Kremlin _ a rare honour and underlined brotherly character of relations between the two countries.Likewise he had addressed the Council of Europe and emphasised Russia's desire to be part of a great Europe without dividing lines. In a way Yeltsin hasbeen effectively playing an anti American game and laying stress on Russia's opposition to the hegemony of a single super power in world affairs. He accusedWashington of sabotaging Moscow's efforts to form the World Trade Organisation and while addressing the Council of Europe in Strasbourg said, "we needto hold these summits to build a new Europe, a Europe that includes Russia and stretches to the Pacific. This is necessary to rebuff those who are strivingto isolate Russia and put her in an unequal position.References1. Supreme Soviet holds session twice a year and that too for a period of 3 to 4 months at a time.2. See details in introductory chapter.3. Hindustan Times, dated December 20, 1994.4. Ibid., July 5, 1996.5. Ibid, October 21, 1997.143BIBLIOGRAPHYW.A. Robson, Justice and Administrative LawKeith. The British Cabinet SystemRamsay Muir, How Britain is Governed H. Morrison, Government and Parliament Sydney Low, The Governance of England H.J. Laski, Reflection on the Constitutions------------, Parliamentary Government in EnglandF.W. Maitland, Origin and Growth of the English ConstitutionWade and Philips, Constitutional LawH. Finer, Government of Great European Powers------------, The Theory and Practice of Modern GovernmentA.L., Lowell, The Government of England E.A. Freeman, Growth of the English ConstitutionE. A. Ogg, English Government and PoliticsW.B. Munro, The Governments of EuropeG.B. Adams, Constitutional History of EnglandW.R. Anson, Law and Custom of the ConstitutionOgg and Zink, Modern Foreign GovernmentsLord Hewart, The New DespotismA.V. Dicey, Law of the Constitution------------, Introduction to the Law of the ConstitutionQuintin and Hogs, Purpose of ParliamentByrum E. Carter. The Office of Prime MinisterW. Churchill, Their Finest HourE Ashley, Life and the Correspondence of PalmerstonCD. Burns, WhitehallMacDonald, Socialism and GovernmentE. Barker, Britain and the British PeopleSpencer Walpole, Electorate and LegislatureC. Albert, ParliamentC.F.G. Masterman, How England is Governed144Webbs, A Constitution for Socialist Commonwealth of Great BritainA.L. Rowse, The House of Lords and LegislationR.G. Newmann, Europe and Comparative GovernmentsW.I. Jennings, The British Constitution---------------, Cabinet Government---------------, Parliament1INDEXESGREAT BRITAINAct of 1911, (Britain), 114Act of 1925, (Britain), 133Act of 1928, (Britain), 13Act of 1949, (Britain), 122-124, 128Act of Settlement, 1701, (Britain), 17, 18Act of Union with Scotland, 1707, (Britain), 18Adam, G.B., 10,11Almond, 166Amos, Maurice, Sir, 36Asquith, 44, 46Bagehot, 118Balfour. Earl of, 47Barkir, 92Bill of Rights, 1689, (Britain), 10, 11, 18Blackstone, 36, 52, 89Bogdanor, 163Borough, a special unit of local Government, 147-148Bryce, Lord, 20Burke, 16Cabinet, 50-76-Cabinet Dictatorship, 62-66-Distinction between Cabinet and Ministry, 52-53-Features of Cabinet System, 55-60-Functions of the Cabinet, 60-62-Organisation of the Cabinet, 53-55Carter, Byrum, 71Churchill, 73Civil Service, 77-86-Civil Servants contrasted with Ministers, 77-79-Organisation of Civil Service in England, 78-81-Role of Civil Service in England, 81-83Clarendon's Scheme, 1929, 129Crown, 35-48-Distinction between King and Crown, 35-37-Justification of Monarchy, 42-48-Powers of the Crown, 37-42De Lolme, 88, 90Dicey, Prof., 17, 25, 28, 31, 32, 33, 55, 90, 91, 133Duverger, 166Finer, Dr., 29, 33, 36, 69, 99, 107, 110, 126Fox Libel Act 1792, (Britain) 17Freeman, 1, 26Gladstone, 62Habeas Corpus Act, 1679, 17Hitchner, 167House of Commons, 144, 155, 101-1072-Committees in the House of Commons, 101-104-Powers and functions of House of Commons, 104-107-Speaker, 95-101House of Lords, 117-132-Composition of the House of Lords, 117-120-Powers and functions of the House of Lords, 120-124-Reforming the House of Lords, 124-125-Utility of the House of Lords, 126-128Jennings, Dr., 26, 29, 30, 43, 44, 46, 47, 67, 73, 154Judicature Acts of 1873-1876, (Britain), 17, 133Judiciary, 133-141,-Features of British Judicial System, 133-135-Organisation of the British Judicial System, 135-140Keith, AB, 30, 64, 72Laski, 32, 42, 45, 47, 55, 67, 73, 77, 84, 86, 125, 132Life Peerages Act, 1958, (Britain), 119,131Life Peerages Act, 1963, (Britain), 131Local Government Act, 1888, (Britain), 17, 144Local Government Act, 1929, (Britain), 17Local Government Act, 1933, (Britain), 145Local Government in England, 142-153-History of Local Government in England, 142-145-Local Areas in England, 145-153Low, Sidney, 36, 64, 66, 68, 78, 85, 93Lowell, 29, 41, 48, 68, 84, 99, 106MacDonald, Ramsay, 86Mackintosh, 70Magna Carta, 6, 18Maine, Henry, Sir, 40Maitland, F.W., 38Marriott, John, Sir, 62, 89Mill, J.S., 25Montesquieu, 24Morley, 59, 73Morrison, 47, 57, 71, 98Muir, Ramsay, 40, 50, 62, 63, 81, 82, 83Municipal Corporation Act, (1872), 17Munro, Dr., 3, 4, 13, 37, 73, 124National Union of Conservatives and Unionist Association (N.U.C.V.A.), 157Neumann, 48Ogg, 2, 8, 21, 22, 23, 24, 25, 29, 36, 44, 58, 128Paine, Thomas, 16Parliament, 88-132-Budgetary Procedure England, 113-115-House of Commons, 93-107-House of Lords, 117-132-Law Making Procedure, 107-113-Limitations of Parliamentary Sovereignty, 91-93-Sovereignty of Parliament, 88-91Parliament Act of 1911, (Britain), 17, 18Petition of Rights, 1628, 183Political Parties in England, 154-168-Main Features of British Parties, 154-157-Party Organisation, 157-166-Pressure Groups, 166-167Powell, 166Reforms Act, 1832, (Britain), 13, 17, 18Reforms Act, 1867, (Britain), 17Reforms Act, 1884, (Britain), 17Representation of the Peoples Act, (1918) Britain, 13, 19Rule of Law, 30-34Salisbury Reform Plan, 1933,130Statutes of Westminster Act, 1947, (Britain), 19, 92Tocqueville, Alexis, 16, 89, 142Walpole, Spenser, 93Webbs, 117Woolton, 69Zink, 25USAAmendments of the Constitution, 13, 23-27Bartley, 90Baudin, 146Beard, Prof., 27, 92Beck, James M., 140Bicameral Legislature, 12, 62Bright, John, 28Brogan, 59, 109Bryce, Lord, 7, 92, 138, 163Congress: Its Composition, 64-81-House of Representatives, 65-75-Senate, 75-81Congress at Work, 112-133Powers of Congress, 96-111-Legislative Powers, 96-99-Non-Legislative Powers, 99-102Democratic Party, 154Drummond, Rosec, 22Federal Judiciary, 134-151-District Courts, 150-Inferior Federal Courts, 149-150-Judicial Review, 141-149-Special Federal Courts, 150-151-Supreme Courts, 135-141Ferro, 60Finer, Dr., 25, 27, 141, 149, 163, 169Galloway, C.B., 86Gerrymandering, 67Griffith, 22, 167Griffiths, 121, 124Hamilton, Alexander, 142Hamilton, Walton, 107, 134Harris, Joseph P., 112Haskin, 88Haymen, 38House of Representatives, 65-75Hughes, 140, 146Inferior Federal Courts, 149-150Jennings, 614Johnson, 37, 46Judicial Review, 141-150Laski, 29, 44, 46, 47, 50, 54, 59, 60, 88, 91, 94, 105, 141, 157, 165Lindsay, 93MacIver, 152Maine, Henry, Sir, 47Mill, J.S., 100Montesquieu, 1Muir, Ramsay, 50, 51Munro, 6, 7, 16, 22, 24, 86, 87, 119, 138, 147, 152, 162Murrey, 91Ogg. 10, 15, 25, 37, 50, 92, 157, 166, 168Philadelphia Convention, 1787, 5-6, 167Polter, 146Political Parties, 152-171-Growth of American Parties, 152-157-Party Finances, 162-163-Party Organisation, 157-162-Party Programmes, 163-166Potter, 103Presidency, 28-63-Comparison with British Prime Minister, 51-53-Comparison with Indian President, 53-57-Election Procedure, 29-34-Emoluments, 34-Position of American President, 47-48-Powers of the President, 36-47-Qualification, 34-Removal of the President, 35-Succession, 35-Tenure and Re-eligibility, 34-35Raleigh, Walter, Sir, 1Ray, 15, 37, 92, 157, 166, 168Republican Party, 154, 155, 156Rogers, Lindsey, 91Schwartz, 22Senate, 75-81, 82-95-Causes of its Strength, 88-93-Senate as a Legislative body, 82-83-Senate compared with House of Lords, 93-94-Special powers of the Senate, 83-88-Weakness of the Senate, 94-95Stannard, Harold, 111Swarthout, 90Swisher, 17Tourtellot, 102, 103Vice President, 61-63Wilson, Woodrow, 62Zink,25SWITZERLANDAct of Mediation, 1803, 3Andrae, 10, 46Andre, 8Bicameral Legislature, 12Brown, John, 29Bryce, 1, 2, 5, 9, 18, 26, 27, 28, 30, 32, 33, 40, 52, 53, 55, 60, 61Cantonal Government, 69-785-Cantonal Executive, 72-Cantonal Judiciary, 72-Great Council, 71-Other Local Units, 73-74-Regierungsrat, 71-Relation between Centre and Cantons, 74-77-Two types of Cantons, 69-78Cantons, 6, 15, 50Codding, 15, 24, 68Constitution of 1848, 4Constitution of 1874, 4Dicey, Prof., 27Direct Democracy in Switzerland, 46-60-Critical estimate of Working of Referendum, 51-52-Critical review of the Initiative, 58-Defects of Referendum, 53-55-Initiative, 49-51-Landsgemeinde, 46-47-Referendum, 47-49-Working of the Initiative, 56-58Dubbs, M., 53Esmien, 57Federal Council, 26-37-Civil Services in Switzerland, 37-Federal Secretariat, 37-Functions of Federal Council, 35-37-Organisation and Functions of the Council, 34-35-Peculiar Relations between Federal Council and Federal Assembly, 32-34Federal Government, 7-9Federal Judiciary, 39-45-Appellate Jurisdiction, 41-43-Comparison of the Federal Tribunal with American Supreme Court, 43-45-Federal Tribunal, 39-41-Original Jurisdiction, 41-43Federal Legislature, 15-24-Council of States, 18-Joint Sessions of the Houses, 20-Legislative Procedures, 21-22-National Council—Its Composition, 15-16-Powers of Federal Assembly, 22-24-President of the Council, 17Finer, Dr., 50, 54Friedrich, C.J., 10, 59Huber, Hans, 2, 11, 26, 51, 60Hughes, Christopher, 19Initiative, 49-51Laissez-faire, 64Landrat, 70-71Landsgemeinde, 9, 46-47Lloyd, 47Liberalism, 10Mason, 27Munro, Dr., 1, 5, 12, 29, 33, 58Plural Executive, 11Political Parties in Switzerland, 61-78-Brief history of Political Parties, 64-67-Cantonal Parties, 67-68-Interest Groups, 68Rappard, William, 2, 15, 29, 39, 59, 66Referendum, 6, 47-49Regierungsrat, 716Republican Constitution, 7Siegfried, Andrae, 16Strong, C.F. 12, 26, 52, 54Sunderhand, 3Zuncher, 1, 10, 22FRANCEActe Additionnel of 1815, 1Arrondisement, 56, 67Bryce. Lord, 62, 76Campbell, 25Canton, 67Chapman, 25Commune, 68Communist Party, 80-82Community, 14Conseil Superieur de la Magistrature, 59Constitutional Council, 13-14, 59-60Council of Ministers, 29-31-Formation, 29-Functions of Council of Ministers, 29-30-Limitations on Ministers, 30-31Council of State, 58Cour des Comptes, 38Declaration of Rights, 1789, 10De Gaulle, 1, 18, 21De Torqueville, 61Fifth Republic (1958), 8-9, 10Finer, Herman, 57Finer, S.E., 73Fourth Republic (1944-1958), 4-8French Revolution (1789), 1-2Harrison, 42High Court of Justice, (France), 59Judiciary, 53-61-Administrative Courts, 57-59-Main Features, 53-56-Organisation of Judiciary 56-57-Other Judicial Institutions, 59-61Laponce, J.A., 43Local Government in France, 62-73-Areas of Local Government in France, 64-69-Brief history of decentralisation, 69-70-French Local Government after March 2, 1982, 69-Main features of Local Government in France, 63-64-Removal of financial bottlenecks, 73Maastricht Treaty, 20, 60, 80Macrides, 39Movement Republican Populaire, (M.R.P.), 84-85Munro, W.B, 53, 55, 63, 67, 69Neumann, 1Ogg, 63 Organic Laws, 45Parliament, 31-51-Legislative Procedure, 42-477-Powers and functions of the French Parliament, 36-Relation between Government and Parliament between the two Houses, 47-48-Restrictions on Parliamentary Sovereignty, 40-42Pickles, Dorothy, 10, 31, 43, 48, 61, 68Political Parties in France, 16, 75-87-Convention of Republican Institution, 79-Main Features of French Party System, 75-78-Main Political Parties in France, 78-79-Parties of the Right, 79-80Prefect, 66President, 18-26-Election, 18-19-Position, 23-26-Powers, 19-23Prime Minister, 26-29-Powers and Position, 26-29Regional Council, 58Second Republic (1848-1851), 2Socialist Party, 82-84Solton, 77Stewart, Michael, 26, 51Strong, C.F., 57Third Republic, (1870-1940), 3Union for the New Republic, (U.N.R.), 85-86Ward, 39Williams, 43Zink, 63JAPANBarks, Ardath, 56Bicameral Legislature, 10Bryce, Lord, 61Burke, Andrath W., 24Cabinet of Japan, 31-Functions of the Cabinet, 33-34-Nature of the Cabinet, 34-36Charter Bath, 18, 69, 7Committees of the House, 52-55-Evaluation of the Committee System, 55-56Communist Party, 77Democratic Socialist Party, 76-77Diet, 38, 41-61-Budget, 60-61-Functions of the House of Councillors, 47-49-Functions of the House of Representatives, 44-46-History of the Diet, 41 -42-House of Councillors, 46-47-House of Representatives, 42-44-Legislative Procedure, 56-59-Position of the House of Councillors, 49-50-Speaker of the House of Representatives, 50-52Emperor, 26-31-Position of the Emperor, 29-31-Powers of the Emperor, 27-29-Succession to the throne, 27Feudalism, 4-8-Post-Feudal Period, 6-88-Salient Features of the Japanese Fevdal System, 4-6Fuji Sawa, Dr., 9Fundamental Rights, 20-25-Evaluation, 23-25-Kinds of Rights, 20-23Gicho, 47House of Councillors, 46-50-Functions of the House of Councillors, 47-49-Position of House of Councillors, 49-50-President, 47-Qualification of Membership, 46House of Representatives, 42-46-Functions of the House of Representatives, 44-46-Qualification of the Members, 43-Tenure, 43-44Ike, Mobutka, Prof., 30, 32Judiciary, 62-69-Evaluation of Japanese Judicial System, 68-69-Lower Courts, 67-Organisation of Judiciary, 66-Pre-war Judicial System, 62-63-Post-War Judicial System, 63- 65-Supreme Court, 66-67Kahin, 55Kenzo, Prof., 20, 24Liberal Demoratic Party, 75-76Linebarger, 39MacArthur, General, 14,16Maki, John, M., 1, 24, 67Meiji Constitution, 8-9, 31,41Ogg,9,31Political Parties, 70-79-Historical Background, 69-72-Main features of Japanese Party System, 72-75-Parties and Policies, 75-76Prime Minister of Japan, 36-39-Functions of the Prime Minister, 36-37-Position of the Prime Minister, 37-39Quigley, 35Shova Constitutions, (1947), 14Socialist Party, 76Sokae, 24Supreme Court, 66-67-Appointment and Removal, 66-Jurisdiction of the Supreme Court, 66Theodore, 50Turner, 35Ward, Robert, E., 24, 69Yamaga, Chitoshi, 14, 24,26, 31, 53, 54, 55, 69, 70Zink,9, 319CANADAAct of: (1791), 1Act of: (1867), 52Act of: (1875), 6Amendment Procedure, 52-54Balfour Declaration, 2Bicameral Legislature, 10Brady, Alexander, 2, 31, 33British North America Act, (B.N.A.) 1867,2,5,12Bryce, 1Cabinet, 20-25-Powers, 21-22-Prime Minister, 22-25Charter of Fundamental Rights and Freedoms, 15Constitution, Act of 1982, 3-4, 5, 6, 10, 12, 50Damson, 16Dawson, 17, 20, 21, 23, 28, 33, 39Federalism, 47-51-Centralising Features, 48-50-Federal aspects of CanadianFederation, 47-48-Points of Comparison with American Federation, 50-51Foster, George, Sir, 31, 32Governor General, 17-20-Appointment and term, 17-Position, 19-20-Powers, 17-19Greaves, Prof., 23House of Commons, 34-35Jennings, 25, 26Judicial System, 39-42-Federal Courts, 40-42-Provincial Courts, 39-40Keith, Dr., 33Kennedy, Prof., 8,47, 50,57King, Mackenize, 55Mackay, Prof., 33Marriot, 33Meighen, Arthur, 32O'Leary, Gratton, 31Parliament, 26-38-Causes of Weakness of the Senate, 31-33-Comparison with American Senate, 33-34-Functions of the House, 36-38House of Commons, 34-35Opposition, 35-Procedure of Bills in the House, 36-Senate, 27-30-Speaker, 35Political Parties, 43-46-Farmers Party, 45-Labour Party, 45-Liberal Party, 44-45-New Democratic Party, 45-46-Progressive Conservative Party, 44Prime Minister, 22-25-Appointment, 23-Position, 25-Powers, 23-24Privy Council, 20Quebec Resolution, 510Roberts, L., 19Senate, 27-34-Causes of weakness of Senate, 31-33-Comparion with American Senate, 33-34-Composition, 27-28-Critical Evaluation, 30-31-Powers of Senate, 28-30Speaker, 35Statute of Westminster, 1931, 9, 55-56Strong, C.F., 2, 52Trudeau, Pierre, 12Tupper, Charter, 49Underhill, Frank, H., 43Union Act of 1840, 1Wheare, K.C., 8, 9, 49AUSTRALIAAnderson, Ross, 41Australian Colonies Government Act, (1850), 29, 34Bryce, Lord, 1, 6, 7, 29Cockbum, John, 12, 14Executive Government, 12-16-Crown, 12-Federal Executive Council, 14-15-Governor General, 12-14-Prime Minister, 15-16Federation, 34-41-Australian Federation Compared, 37-38-Birth of Federation, 34-35-Change in the Federal Balance, 38-41-Federal Scheme, 35-37Garran, 7Garran, R.R , 4Griffith, Walker, 34Judiciary-Family Court, 27-Federal Court, 27-High Court, 25-27-State Courts, 27-28Menzies, R.g., 32Parkes, Henry, 34Parliament, 17-24-Business of the Houses, 23-24-House of Representatives, 19-Powers of Parliament, 19-21-Relations between the Houses of Parliament, 21-23-Senate, 17-18Political Parties in Australia, 29-33-Characteristics of the Australian Party System, 30-31-Country Party, 33-Labour Party, 31-32-Liberal Party, 32-Origin of Political Parties in Australia, 29-30Quick, 7Sawer Geoffrey, 17, 25, 34Wheare, Dr., 3911PEOPLE'S REPUBLIC OF CHINAAll China Federation of Co-operatives, 78All China Federation of Democratic Women, 78All China Federation of Democratic Youth, 78All China Federation of Literary Art, 78All China Federation of Trade Union, 79All China People's National Congress, 4Bernett, 72Central Committee, 74-75Chinese People's Liberation Army, 29Chinese People's Political Consultative Conference, (CPPCC), 23-25Clyde, H., 10, 13, 68Communist Party of China, 72-90Constitution of: (1975), 6-7(1978), 7(1982), 7-8Democratic Centralism, 29-30, 36, 67-71, 73-74-Democratisation of State Power, 69-71-Its Working, 68-69Deng Appeals, 89-90Fundamental Rights and Duties, 15-21, 61-66Hao-Pei, Li, 16Hinton, Harold C., 1, 2, 79Judicial System, 55-60-Functions of Procurators, 58-Judicial Structure, 55-56-Local People's Protectorates, 57-People's Protectorates, 57-Salient Features of Judicial System in China, 59-Supreme People's Court, 56-57Keng-Sheng, Chou, 67Lin, Lou-Chia, 15Local People's Protectorates, 57Napoleon, 1National Party Congress, 78National People's Congress, 41-42Ogg, 14, 70Paul, Clyde, 26People's Congress, 21-22Politbureau, 75-76Premier, 52-53-Appointment, 52-Functions, 52-53-Position, 53-Temure, 52President of China, 47-49-Functions of the President, 48-49-Method of appointment and Tenure, 47-48Shao-Chi, Liu 19Socialist Economy, 10-11Standing Committee of NPC, 43-43-Composition and Elections, 43 4612-Judicial Functions, 45-46-Position of the Standing Committee, 46State Council, 50-52-Composition, 50-Functions, 51-52-Tenure, 50-51Tang, Peter S., 43Tse-Tung, Mao, 4, 20, 27, 30, 73Unicameral legislature, 30, 37-38Waller, 5, 6Youth Communist League, 77-78Zink, 14, 70USSRAffiliated Youth Organisations, 91All-Union Congress, 88Auditing Committee, 91Bolshevik Revolution, 93Brezhnev, 1, 8, 14, 125Brezhnev Constitution (1977), 8-9, 14-23Burke, 117, 123Carter, 20, 37, 46, 51, 52, 58, 74, 79, 86, 94Commonwealth of Independent States (1991), 11-12Communist Party of the Soviet Union (CPSU), 81Congress of Peoples Deputies (CPD), 129-130Constitution (1918), 5Constitution (1924), 6-7Council of Ministers (U.S.S.R.), 59-67-Appointment, 59-Chairman, 60-Composition and Organisation, 59-60-Functions of the Chairman, 60-61-Powers of, 61-Presidium of, 60Democratic Centralism, 111-115Duma, 1-2Fainsod, 111, 112February Revolution, (1917), 3Finer, Dr., 3, 15, 16, 31, 32, 34, 52, 57, 71, 77, 82, 98, 102, 103, 104, 115, 126Florinsky, 103, 122Fundamental Rights, 29-43Great War and its influence on Russia, 2Judiciary, 68-80-Functions of the Supreme Court, 76-77-Organisation of Soviet Judiciary, 73-76-No Power of Judicial Review, 77-Role of Law and its Nature, 68-69-Salient Features of the Soviet Judicial System, 69Julian, Towster, 45, 48, 53, 113Karpinsky, 18, 30, 32, 33, 36, 41, 61, 62, 78, 80Komcomols, 9113Lenin, 24, 99 Little Octobrists, 92Maynand, John, Sir, 3Monolithism, 82-83Morley, 63Morrison, 64Mozheicko, Igor, 141Munro, Dr., 63Neumann, 69, 95, 99October Revolution, (1917), 4Ogg, 21, 53, 57, 65, 81, 85, 97, 111, 112Orgbureau, 89Politbureau, 89-90Presidium, 54-58, 90-Actual Role of, 57-58-Chairman of, 54-55-Composition and Organisation, 54-Powers and Functions of, 55-57Revolution of 1905, 1Rutskoi, 12Rychkov, 68Schapiro, 31, 59, 60, 96Sidney, 28Soviet System, 24-28-Functions of the Soviets, 27-28-Objects of the Soviets, 24-25-Organisation of the Soviet before 1936, 25-27-Origin of the Soviet, 24-25-Soviets after 1936, 27Stalin, 89, 93, 114, 118Stalin Constitution, (1936), 7-8Supreme Soviet, 45, 46, 49-54, 130-133Turbiner, 77Vyshinsky, 29, 30, 48, 68, 80, 102, 111, 117Webb, Beatrice, 28Wheare, K.C., 103Williams, A.R., 81Zink, 21, 53, 57, 65, 81, 85, 97, 111, 112 ................
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