DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW A project submitted for the research work undertaken in the partial fulfillment of B.A.LL.B. (hons.)-4 (hons.)-4th Semester course in Constitutional Law- II in Faculty of Law, Dr. Ram Manohar Lohiya National Law University, Lucknow
Submitted By: Deepanshi Deepanshi Chowdhary Roll. No. - 48 Semester- 4
th
Under the Guidance of: Mr. Abhishek Tiwari Faculty of Constitutional Law, Dr. Ram Manohar Lohiya National Law University
TABLE OF CONTENTS
Introduction History and adoption of the parliamentary form of government Parliamentary form of government Presidential form of government Presidential v. Parliamentary form of government Advantages of Parliamentary form of government Loopholes of Parliamentary form of government Need of Presidential form of government Conclusion Bibliography
INRODUCTION
The Parliamentary system produces a stronger government, for (a) Members of the Executive and Legislature are overlapping and (b) the heads of the government control the Legislature K M Munshi
. India has a parliamentary system of government based largely on that of the United Kingdom (Westminster system). However, eminent scholars including the first President Dr Rajendra Prasad have raised the question " how far we are entitled to invoke and incorporate into our written Constitution by interpretation the conventions of the British Constitution ".
The system was adopted in India because of the belief of a stronger and stable government that would help in the efficient functioning of the country.
HISTORY AND ADOPTION OF THE PARLIAMENTARY FORM OF GOVERNMENT IN INDIA The members of the Constituent Assembly were committed to framing a democratic constitution for India, and there was little doubt that this democracy should be accepted in the institutions of direct responsible government and not in the indirect system. The assembly had to find the answer in the context of the past which was India’s familiarity with cabinet government and in the needs of the present and the future. The assembly chose a slightly modified version of the British Cabinet system. K M Munshi in his Draft Constitution provided for a head of state with powers like those of a British Monarch, for joint responsibility of ministers. He preferred the British system to American Presidential system, believing it to be a stronger form because of the overlapping memberships of the government and legislature. India was formally set upon the path of parliamentary government during the early meetings of the Union Constitutional Committee. The definitive moment came at a joint meeting with the Provisional Constitutional Committee set up at the same time as the UCC. Experience provided the most favourable of parliamentary government. The Constituent Assembly had sought to establish a parliamentary government for India because it promised strength, cohesive action and leadership and yet at the same time it feared Executive power. Its suspicions were very understandable, for although Indians had participated to some degree in the legislative institutions of parliamentary democracy, they had been subjected to the rule of autocratic executives. Like colonial Americans, they had learned to have greater faith in legislatures as protectors of their rights, they had, indeed conceived an ineradicable mistrust of the Executive branch of the government. In his Draft Constitution of September 1947, Rau added flesh to the bare bones of the Union Constitution Committee’s Executive provisions. Among other things, he laid down that cabinet was collectively responsible to the House of the People, and this major convention of parliamentary government became a part of our Constitution.
PARLIAMENTARY FORM OF GOVERNMENT
A parliamentary system is a system of government in which the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined. In such a system, the head of government is both de facto chief executive and chief legislator. If Britain is the best example of parliamentary form of government, presidential system has its best instance in the American political system.
PARLIAMENTARY FORM OF GOVERNMENT IN INDIA The Constitution of India establishes a parliamentary form of government both at the Centre and at the State. In this respect the framers of the Constitution have followed the British model in toto. The parliamentary form of government is its responsibility to the Legislature. The Government of India is of a democratic form which means it is a government `by the people, for the people and of the people`. In this parliamentary system of government, parliament is supreme and there is fusion of Executive and Legislative powers. The President is the constitutional head of the Executive. All the executive powers are exercised by the Council of Ministers with the Prime Minister as head. After independence, the whole political scenario changed with the Congress in Power. The Constitution of India being the supreme law of the land came into force on 26 January 1950. The preamble of the Constitution defines India to be a sovereign, socialist, secular, democratic republic. The parliamentary system of India is a replica of the Westminster-style. The first general election was held under the Constitution during 1951-52. Parliament occupies a prominent position in the structure of the Government of India. It is the representative institution of the people. It is through the Parliament, the sovereign will of the people finds expression. Article 79 of the Constitution of India states that there shall be a Parliament for the union and the government will be responsible to legislature and the legislature is in turn responsible to the people who are the ultimate sovereign. The composition of the parliament consists of the president and the two Houses- the Lok Sabha or the House of the Parliament and the Rajya Sabha or the Council of States. The continuation of a President or the Head of the State in the Parliamentary form of government symbolises
its true character. The President though does not participate in the discussions of the two Houses, yet he exercises several powers and performs important functions. The president of India is elected by an Electoral College consisting of the elected members of the two Houses of the parliament and the Legislative Assemblies of the state. The Rajya Sabha which is another essential part of the parliament consists of not more than 250 members. Of these, 233 members represent states and union territories and 12 members are nominated by the President. Members to the Rajya Sabha are elected by the elected members of Legislative Assemblies of the concerned states. The Rajya Sabha is not subject to dissolution in contrast to the Lok Sabha and one third of its members retire every second year. However, in the Indian Polity, the Lok Sabha is composed of representatives of the people chosen by direct election on the basis of universal adult franchise. As present, the Lok Sabha consists of 545 members with two members nominated by the President to represent the Anglo-Indian Community. The term of the Lok Sabha is for five years and gets dissolved under circumstance of failure of the leading party to prove clear majority or a no-confidence motion. Article 74 (1) of the Constitution provides that there shall be a Council of Ministers headed by the Prime Minister to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice. India is a bicameral parliament consisting of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). The Council of Ministers is collectively responsible to the Lok Sabha, the House of the People. The Council of Ministers comprises Cabinet Ministers, Minister of States and Deputy Ministers. It is the Prime Minister who communicates all decisions of the Council of Ministers relating to administration of affairs of the Union and proposals for legislation to the President. Each department has an officer designated as secretary to the Government of India to advise Ministers on policy matters and general administration. The Cabinet Secretariat has important coordinating role in making decision at highest level and operates under direction of Prime Minister. Government of India has certain departments that carry on their duties under the supervision of several ministries. The Central Ministry is part of the Executive branch of Government India. Depending on the federal character of the political system of India, Indian Government Departments are divided into Central government departments and State Government department. The central ministry work independently and the State governments work under
the supervision of the Central Government. There are certain departments including Departments of Agriculture, Home Affairs, Commerce and Industry, External Affairs, Corporate Affairs, Defence, Information and Broadcasting, Civil Aviation, Human Resource Development, Railways, Environment and Forests, Finance and Company Affairs, Health and Family Welfare, Heavy Industries and Public Enterprises, Petroleum and Natural Gas, Power, Labour, Tourism, Women and Child Development, Youth Affairs and Sports and several others constitute the Indian Government Departments. These departments work for public welfare. The ministers of these government bodies are chosen through general election India at an interval of every five years. But the bureaucrats and other officials are appointed through competitive exams that are held throughout India.
PRESIDENTIAL FORM OF GOVERNMENT A presidential
system is
and presides (hence
the
a system name)
of
government where
separately
from
an executive
the legislature,
to
branch exists which
it
is
not responsible and which cannot, in normal circumstances, dismiss it. In the words of Bagehot, “the independence of the legislative and the executive powers is the specific quality of presidential government just as fusion and combination is the principle of cabinet government ".
PRESIDENTIAL FORM OF GOVERNMENT IN UNITED STATES The concept of separate spheres of influence of the executive and legislature is specified in the Constitution of the United States, with the creation of the office of President of the United States elected separately from Congress. The framers of the U.S. Constitution adopted the principle first enunciated by the Baron de Montesquieu of separation of powers. They carefully spelled out the independence of the three branches of government: executive, legislative, and judicial. At the same time, however, they provided for a system in which some powers should be shared: Congress may pass laws, but the president can veto them; the president nominates certain public officials, but Congress must approve the appointments; and law was passed by Congress as well as executive actions are subject to judicial review. Thus the separation of powers is offset by what are sometimes called checks and balances. Under the U.S. Constitution, the President and other executive officers are not permitted to hold seats in the legislature at the same time they hold offices in the executive branch of the government. The Constitution requires a strict separation of the personnel of the executive and legislative organs of government. The same people may not simultaneously hold formal office in and exercise the authority of both branches of government. If a person occupying an executive or administrative office in the national government is elected to either chamber of Congress, he must resign the executive or administrative office before he can take his seat in the U.S. Senate or House of Representatives. If an incumbent U.S. Senator or Representative is elected President or Vice President, he cannot be inaugurated as President or Vice President until he resigns his seat in Congress. A member of either house of Congress cannot accept a presidential appointment as presidential staff officer, Cabinet-level department head, or other executive or administrative officer until he resigns his seat in the Senate or House of Representatives
Formally and legally, the President is not the majority party leader in the legislature. Under the Constitution, he is leader in neither of the two houses of Congress. On occasion, however, the President may function informally and unofficially as policy leader of one or both chambers of Congress in particular areas of national public policy. . The President, possessing a separate grant of constitutional authority and elected independently Congress to a fixed term which the latter cannot easily cut short, is not primarily responsible to the legislature. Instead, he is directly and primarily responsible to the American voters. Since the election of the President and the election of members of Congress are separate and independent elections, a political party's victory in the presidential election does not necessarily mean that the party will emerge victorious in the congressional elections. Conversely, the fact that a party has won a majority of the seats in one or both houses of Congress does not necessarily mean that it has also won the Presidency. Therefore, control of the principal organs of the U.S. national government may be divided between rival parties. The President, his staff officers, members of his Cabinet, and other high-ranking executive officers may be of one political party, while a majority in one or both chambers of Congress may be of the opposition party. The top executive authority, the President, is, in effect, elected by popular vote. Since the President is not chosen by Congress, the executive is not primarily responsible to the legislature. The chief executive, like the legislature, receives his mandate to govern from the voters and is thereby directly responsible to them. Moreover, the President, U.S. Representatives, and U.S. Senators are chosen by and responsible to different constituencies with varying and competing interests. The consequence is multiple and fragmented lines of political authority and responsibility.
PRESIDENTIAL v. PARLIAMENTARY FORM OF GOVERNMENT For the last two decades , a debate has been going on in the country whether the present parliamentary system should be continued or should be replaced with the presidential system under which the president elected directly by the people for a fixed term will function as the nation’s executive unhampered by the legislature in taking the administrative decisions. He will also have the distinct advantages of choosing his ministerial team from among the best talent, available in the country without being subjected to the pulls and pressures of elected representatives. Those who favour presidential form of government claim that it has the following advantages.
The Chief Executive in a presidential system is relatively free from sectional and party disputes. His term is fixed and thus it ensures stability of the government and the President can devote his time for the development of the country.
He is free to choose his team of ministers from the best talent available within the country. His choice is not restricted to elected representatives as in the case of parliamentary system.
It discourages the disease of defections and maintains discipline among the members of a political party.
On the other hand those who favour the retention of the present parliamentary form of government claim that it has the following advantages over the presidential form of government.
It is a responsible government. The government is subject to security in the legislature as regards its achievements and failures. The ministers are accountable to the legislature.
The Prime Minister who enjoys two third majority of the Parliament is much more powerful than the President in the United States.
There is nothing to prevent the Prime Minister to choose the best talent from outside his cabinet and get them elected to either House of the Parliament.
The disease of defection can be removed by appropriate l egislation.
ADVANTAGES OF PARLIAMENTARY SYSTEM OF GOVERNMENT 1. One of the commonly attributed advantages to parliamentary systems is that it’s faster and easier to pass legislation. This is because the executive branch is dependent upon the direct or indirect support of the legislative branch and often includes members of the legislature. Thus, this would amount to the executive (as the majority party or coalition of parties in the legislature) possessing more votes in order to pass legislation 2. In a parliamentary system, with a collegial executive, power is more divided. It can also be argued that power is more evenly spread out in the power structure of parliamentarianism. The prime minister seldom tends to have as high importance as a ruling president, and there tends to be a higher focus on voting for a party and its political ideas than voting for an actual person. Parliamentarianism has been praised for producing serious debates, for allowing the change in power without an election, and for allowing elections at any time. 3. The fusion of the legislative and executive branches in the parliamentary system tends to lead to more discipline among political party members. Parliamentary system has proved most successful in countries having developed two-party system .Parliamentary system of the government has placed more and more emphasis on the power of Parliament. The main emphasis is on the centre of the power. Parliament becomes the main focus and the institution Prime Minister has been getting more and more importance. 4. Parliamentary systems are inherently less accountable than Presidential once, as responsibility for decision is taken by the collective cabinet rather than a single figure. 5. It is a stable government as the opposition is ready to form the new government in case the party in power resigns.
LOOPHOLES OF THE PARLIAMENTARY FORM OF GOVERNMENT IN INDIAN CONTEXT At the outset it has to be made clear that the framers of the Constitution preferred the parliamentary system for two reasons. 1. The system was already in existence in India and the people were well acquainted with it. 2. It provides for accountability of the ministers to the Legislature. However this hope of the framers has been belied. The happenings during the last two decade clearly demonstrate that parliamentary form of government has almost failed. Efforts to remove its drawbacks have not been successful. Briefly it suffers from the following drawbacks: 1. MULTIPLICITY OF POLITICAL PARTIES:
The existences of too many political parties have resulted in unstable government .A number of State Governments has fallen due to the multiplicity of political parties. It is not possible to have strong opposition in the legislature which affects the decision of the government in various forms and exercises control over it.
2. EVIL OF DEFECTION:
The evil of defection has been threatening the very basis of our parliamentary system resulting in unstable government. To cure this evil Parliament enacted the 52
nd
amendment in 1977 and added the Tenth Schedule to the Constitution which provided that if a member of a legislative party voluntarily leaves his party or votes against the whip or nominated member joins another party within six months of election he will lose his membership of the legislation. But one of the exceptions to the above rule is that if one third of the members goes out of the party it will be called a split and not defection and the separated group will be a new entity.
3. LACK OF COHESIVENESS AND LEADERSHIP IN NATIONAL PARTIES:
Lack of unity and cohesion in national parties, particularly the Congress party and behaviour of the members of the different groups within the party have weakened the authority of the leader of the party who becomes the Prime Minister. It has been seen
that the Prime Minister has to devote much of his time in solving party disputes and little time is left to him to look after the nation’s work.
4. IILITERACY OF VOTERS:
A vast majority of our electorate is illiterate and politically immune and in exercising his right of franchise is swayed away on the basis of caste, creed, religion, money etc. National issues are not at all considered by the electorates.
5. GROWTH OF REGIONAL PARTIES:
The growth of local and regional parties arousing parochial and provincial feelings has also weakened the functioning of the parliamentary system. These regional parties are demanding more autonomy for the States and thus threaten the unity and integrity of the national.
6. CRIMINALISATION OF POLITICS:
Criminalisation of politics has also affected the free and fair elections. Almost all parties have connections with known criminals. These criminal leaders spread violence in elections on a large scale. They resort to booth capturing, bogus voting et c. In the light of the experience of the functioning of parliamentary form of government during the last two decades it may be said that the present parliamentary system has not been working successfully and it should be replaced with the Presidential Form. An executive head directly elected by the people for a fixed term will be free from all restraints and will be able to provide political stability thereby helping the nation towards fast economic development.
NEED OF PRESIDENTIAL FORM OF GOVERNMENT FOR INDIA India stands out as a shining symbol of democracy amongst the nations that emerged as independent states after the demise of colonial rule post- World War II. India’s founding fathers opted for the Westminster model of parliamentary democracy as practiced in Britain with some modifications. Probably in their wisdom and taking a long view as was available at that particular time, India’s founding fathers perceived that the parliamentary system of government would be best suited to bridge the vast disparities of India and provide opportunities for a more integrated India to emerge. They also believed that the generations of political leaders that would follow them and occupy their hallowed seats in Parliament would be men and women of equal noble vision and equal noble purpose. the system of checks and balances that were inserted in the Constitution by the founding fathers in relation to the powers vested in the President and the Supreme Court we see now these being questioned by those who should be setting exemplary standards to uphold them. The first blow was struck by Indira Gandhi by bringing in the 42nd Amendment Constitution to make it obligatory for the President to act on the advice of the Prime Minister. The Parliamentary system of Government today in India stands deeply compromised and eroded from what was conceived by the founding fathers. They would squirm in their graves to see what hues the Parliament has acquired and the total compromise and distortion that has taken place of their Constitutional blueprint. Financially also the Parliamentary system is a heavy drain on the Indian exchequer in terms of Jumbo Cabinets and over 800 members of both Houses of Parliament all to be maintained at five star luxury levels and millions of rupees spent on their perks and privileges. The same gets applicable at the States level. To this needs to be added the stupendous cost of frequent elections necessitated by fall of governments due to political defections. The time has come for India to dispense with the Parliamentary system of Government as it has failed to prove its effectiveness and has outlived its utility. India must opt now for the Presidential system of Government in which the President is elected for a period of four years by a direct vote. He would be both the Head of State and the Head of the Government.
The above pattern should apply at the States level also with the Governor being elected by a direct vote. Both at the Central level and the States levels the number of lawmakers should be restricted to a given number in double figures. Between the American and French systems of Presidential governance the American system is more preferable for India but with the important proviso that the President be elected by a direct vote of all citizens and not an electoral college. It would ensure that the person who emerges as Head of State and Head of Government of India would be the best bet that India has to offer. The qualifications for the Presidential candidate should incorporate excellence in intellectual attainments and personal integrity. It should have filters to keep out tainted and criminalized people. More importantly voting must be made compulsory for all citizens of India. This system would also facilitate millions of Indian expatriates to take part in determining India’s future.
CONCLUSION Though the parliamentary system of government has many advantages as discussed and it was incorporated in the Constitution because of familiarity. The happenings during the last two decade clearly demonstrate that parliamentary form of government has almost failed. Efforts to remove its drawbacks have not been successful. This calls out for a need of introducing presidential form of government in India. But it may be possible that the Executive would assume absolute power and prove to be a threat to the democracy of the country. I believe a hybrid system which is a combination of Presidential System and Parliamentary Systems would be more appropriate for India. When France went through a long period of unstable coalition governments, in 1958 they changed from parliamentary System
to
so
called
Semi-Presidential
System
of
government.
Within a decade, French political parties, once unwilling to cooperate and form stable coalitions, began to coalesce into a workable system with coalitions that supported not only prime ministers, but also presidents. The French hybrid system functions more smoothly when the majority party in parliament is also the party of the President, but this needs not always be the case. The term hybrid generally refers to a system with a separately elected President who shares executive power with the Prime Minister. The President usually has the constitutional power to select the Prime Minister. Switching over to another form of government would not solve the problem alone unless t he ministers are willing to bring about a change in them for the betterment of the country.
BIBLIOGRAPY BOOKS REFERRED st
Granville Austin, ‘ Essays on Constitutional Law’ , ( 1 Ed, Oxford University Press, 2006.) J N Pandey, ‘ Constitutional Law’ , (44th Ed, Central Law Agency,2007.) th
D.D.Basu, ‘Constitutional Law on India ,(8 Ed, 2008.) D.D.Basu, ‘Shorter Constitution of India ,’ (14th Ed, 2009) WEBSITES REFERRED
1. en.wikipedia.org/wiki/Presidential_system 2. www.essortment.com/parliamentary-versus-presidential-governments-60835.html 3.
www.wisegeek.com/what-is-the-difference-between-a-parliamentary-andpresidential-system-of-government.htm
4. en.wikipedia.org/wiki/Parliamentary_system 5. www.academon.com/...Parliamentary-Form-of-Government/48464 6. rajendramishra.blogspot.com 7. www.shoong.com 8. www.indiannetzone.com 9. www.asianinfo.com 10. www.boloji.com
