Essay on indian constitution and political system
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The form of government that has been adopted in the Indian Constitution is the Parliamentary Government of the British type. Basu writes that the makers of the Indian Constitution rejected the Presidential system, such as the one that exists in the US, on the ground that under such a system, “the Executive and the Legislatures are separate from and independent of each other, which is likely to cause conflicts between them, which our infant democracy could ill-afford to risk." [1] The separation between the two branches in India is partial and Constitution has not expressly put any one institution in a position to dominate the others. Consequently, it is difficult to ascertain which institution would prevail in the event of a conflict between the Legislature and the Executive.
The relationship between the executive and the legislature forms the focus of this paper as the author attempts to determine which institution of government would prevail in a conflict. The present paper will focus on the relationship between the Executive and Legislature, mostly at the level of the Union. With the objective of determining which institution would prevail in case of a conflict, the paper shall begin with an exploration of the nature of the separation between the Executive and the Legislature of the Indian Union. It shall then identify some areas of conflict between the two and also outline the different constitutional mechanisms used by each to control the other. Through this, the author hopes to obtain an answer to the question posed above.
Nature of Separation between the Executive and Legislature
Even though India has incorporated the doctrine of separation of powers, the separation that the Constitution-makers adopted is a partial one since the Constitution-makers did not intend for the Legislature and the Executive to be completely separate and independent of each other.
Composition of the Executive and the Legislature at the Union
As per the Constitution, the Union Executive consists of the President, the Vice-President, the Council of Ministers to aid and advise the President and the Attorney General. Article 53 provides that the Executive Power of the Union is to be vested in the President and may be exercised by him directly or through officers sub-ordinate to him. It also gives the President Supreme Command over the defense forces. The Vice-President acts as the President if there is a vacancy caused in the office due to the President’s death or any other reason. According to Article 64, the Vice-President is the ex-officio Chairman of the Council of States. Thus, his functions are partly legislative in nature. Article 74 provides that there shall be a Council of Ministers, with the Prime Minister as its head, to aid and advise the President and the President shall act in accordance with such advice. The Union Parliament consists of the President and the two Houses i.e. the Council of States and the House of the People. [2]
It is worth noting that real executive power vests with the Council of Ministers. Case law holds that the President must always act on the aid and advice of the Council of Ministers and any exercise of executive power, not in accordance with such advice is liable to be set aside. [3] However, Justice Iyer, without intending to be exhaustive, referred to certain exceptions [4] such as the choice of a Prime Minister, dismissal of a Government which has lost its majority in the House or the appointment of judges. Moreover, according to Article 361, the President cannot be sue or be sued in respect of any executive action. This is because he does not perform executive action personally or individually. It is usually carried out by the Government of India in the name of the President in accordance with the rules of business articulated in Article 77. [5]
The Council of Ministers consists of the members of the legislature (15% of the strength of the House of the People [6] ) and it may be said that, the Cabinet enjoying a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. [7] Thus, the conflict between the authority wielding the executive power and the legislature is reduced to minimum.
Functions of the Union Executive and the Legislature
However, this view is not entirely correct since conflicts between the Legislature and the Executive have arisen in certain areas, which will be dealt with later. Also, the functions of the two institutions differ vastly. It is worth noting that nowhere in the Constitution, can one find a formal definition of legislative, executive or even judicial functions. It is the courts that have endeavored to define these functions.
plz make my answer as brainalist one ..
The form of government that has been adopted in the Indian Constitution is the Parliamentary Government of the British type. Basu writes that the makers of the Indian Constitution rejected the Presidential system, such as the one that exists in the US, on the ground that under such a system, “the Executive and the Legislatures are separate from and independent of each other, which is likely to cause conflicts between them, which our infant democracy could ill-afford to risk." [1] The separation between the two branches in India is partial and Constitution has not expressly put any one institution in a position to dominate the others. Consequently, it is difficult to ascertain which institution would prevail in the event of a conflict between the Legislature and the Executive.
The relationship between the executive and the legislature forms the focus of this paper as the author attempts to determine which institution of government would prevail in a conflict. The present paper will focus on the relationship between the Executive and Legislature, mostly at the level of the Union. With the objective of determining which institution would prevail in case of a conflict, the paper shall begin with an exploration of the nature of the separation between the Executive and the Legislature of the Indian Union. It shall then identify some areas of conflict between the two and also outline the different constitutional mechanisms used by each to control the other. Through this, the author hopes to obtain an answer to the question posed above.
Nature of Separation between the Executive and Legislature
Even though India has incorporated the doctrine of separation of powers, the separation that the Constitution-makers adopted is a partial one since the Constitution-makers did not intend for the Legislature and the Executive to be completely separate and independent of each other.
Composition of the Executive and the Legislature at the Union
As per the Constitution, the Union Executive consists of the President, the Vice-President, the Council of Ministers to aid and advise the President and the Attorney General. Article 53 provides that the Executive Power of the Union is to be vested in the President and may be exercised by him directly or through officers sub-ordinate to him. It also gives the President Supreme Command over the defense forces. The Vice-President acts as the President if there is a vacancy caused in the office due to the President’s death or any other reason. According to Article 64, the Vice-President is the ex-officio Chairman of the Council of States. Thus, his functions are partly legislative in nature. Article 74 provides that there shall be a Council of Ministers, with the Prime Minister as its head, to aid and advise the President and the President shall act in accordance with such advice. The Union Parliament consists of the President and the two Houses i.e. the Council of States and the House of the People. [2]
It is worth noting that real executive power vests with the Council of Ministers. Case law holds that the President must always act on the aid and advice of the Council of Ministers and any exercise of executive power, not in accordance with such advice is liable to be set aside. [3] However, Justice Iyer, without intending to be exhaustive, referred to certain exceptions [4] such as the choice of a Prime Minister, dismissal of a Government which has lost its majority in the House or the appointment of judges. Moreover, according to Article 361, the President cannot be sue or be sued in respect of any executive action. This is because he does not perform executive action personally or individually. It is usually carried out by the Government of India in the name of the President in accordance with the rules of business articulated in Article 77. [5]
The Council of Ministers consists of the members of the legislature (15% of the strength of the House of the People [6] ) and it may be said that, the Cabinet enjoying a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. [7] Thus, the conflict between the authority wielding the executive power and the legislature is reduced to minimum.
Functions of the Union Executive and the Legislature
However, this view is not entirely correct since conflicts between the Legislature and the Executive have arisen in certain areas, which will be dealt with later. Also, the functions of the two institutions differ vastly. It is worth noting that nowhere in the Constitution, can one find a formal definition of legislative, executive or even judicial functions. It is the courts that have endeavored to define these functions.
plz make my answer as brainalist one ..
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