Textbook of Legal Studies XI: Forms and Organs of Government

Introduction to the Organs of Government

• Government is an essential element of the 'State,' acting as a set of institutions that exercises control through legal devices and imposes penalties on lawbreakers.
• Distribution of Functions: A government normally distributes its responsibilities among three primary organs, each with specific roles:
  • Legislative functions: Making the laws.
  • Executive functions: Enforcing and implementing laws.
  • Judicial functions: Adjudicating disputes and interpreting laws.
• Purpose of Government: The government achieves the state's purpose through these minimal requirements of modern governance.
• Separation of Powers: This term describes the system of distribution of powers among the legislature, executive, and judiciary.

Forms of Government: Monarchy

• Definition: Monarchy is the oldest form of government where state machinery operates according to the commands of a monarch. Supreme authority rests in a single crowned individual.
• Character of Monarchy: It is the will of one person that ultimately prevails in all matters of governance, regardless of whether the office is hereditary or elective.
• J.W. Garner ($1871$-$1938$): Stated that monarchy exists whenever supreme and final authority is in the hands of a single person, regardless of tenure duration or the source of election (parliament, people, or hereditary succession). He includes titles like emperor, king, czar, president, or dictator in this broad definition if the single will prevails.
• Decline and Evolution: Monarchies declined with the rise of Republican and Democratic forms.
• Constitutional Monarchy: In countries like the United Kingdom, monarchs are retained as 'ceremonial' or 'nominal' heads, serving as symbols of national unity but devoid of actual political power. C.C Rodee noted that these monarchs are loved and respected but lack political authority.

Aristocracy: Rule of the Best

• Etymology: Derived from the Greek words 'aristo' (meaning 'the best') and 'kratein' (meaning 'to rule').
• Structure: Political power is vested in a few people who determine government policy. These people may be priests, soldiers, professionals, landowners, or wealthy individuals.
• J.W. Garner's Definition: A form of government in which a relatively small portion of citizens have a voice in choosing public officials and determining policy.
• Basis of Selection: Leaders are chosen based on wealth (landowners), education (nobles), religious position (priests), family, succession, or physical force.
• Class Distinction: The ruler is viewed as a class separate from and superior to the ruled.
• Aristotle's Insight: Aristotle noted that a government composed of the middle class is the safest of the imperfect forms and approximates democracy more than oligarchy.

Dictatorship: Absolute Sovereignty

• Alfred Cobban's Definition ($1901$-$1968$): Government by one man who did not inherit the position but obtained it by force, consent, or both.
• Nature of Power: The dictator possesses absolute sovereignty; all political power emanates from his will and is unlimited in scope.
• Governance Style: Arbitrary rule by decree rather than established law. The authority is not subject to any other power and is unlimited in duration.
• Contrast with Monarchy: Unlike monarchs, dictators typically occupy positions through force, invasion, intervention, or militarism.
• Accountability: Dictators are not answerable or accountable to the citizens. Modern dictatorships often function as totalitarian states.

Democracy: Rule of the People

• Etymology: Derived from Greek 'Demos' (people) and 'Kratia' (rule), meaning rule by popular vote.
• Pericles ($495$-$429\,B.C.$): Defined it as a form where the people are powerful.
• Bryce: Defined it as a government where ruling power is vested in the community as a whole rather than a specific class.
• Abraham Lincoln ($1809$-$1865$): Defined democracy in his Gettysburg speech as a 'government of the people, by the people and for the people.'
  • 'Government of the people': Equal distribution of political power/influence.
  • 'Government by the people': Participation of citizens in forming the government.
  • 'Government for the people': Rule for the promotion of public welfare.

Forms of Democracy: Direct and Indirect

• Direct (Pure) Democracy:
  • Definition (Garner): The will of the state is formulated directly by the people in mass meetings or primary assemblies rather than through delegates.
  • Direct Actions: Includes initiative, plebiscite, or referendum.
  • History: Operated in Athens during the $4th$ and $5th$ century $B.C.$ and early Roman polity.
  • Contemporary Existence: Found in Swiss provinces. Voters meet in an open-air Parliament called the Federal Assembly.
  • Mechanisms:
  • Initiative: A specified number of voters prepare a bill for approval.
  • Referendum: A bill passed by the legislature is sent to voters for final ratification.
  • Plebiscite: Important issues decided by the votes of people when the government cannot decide.
  • Recall: Voters can remove elected representatives if unsatisfied.
• Indirect (Representative) Democracy:
  • Definition (Garner): Political power remains with the people, but is exercised through elected representatives based on universal suffrage.
  • Function: Representatives form law-making and law-executing agencies for fixed terms and are accountable to the public.

Presidential and Parliamentary Forms of Government

• Parliamentary System:
  • Connection: The legislature and executive are related through membership and accountability.
  • Prevalent Locations: India and the United Kingdom.
  • Executive Responsibility: The executive must implement laws and manage services (health, education, defense, etc.) while being responsible to the legislature.
  • Collective Responsibility: Professor M.P. Jain explained that the Council of Ministers works as a team; they stand or fall together in Parliament.
  • Alternative Names: Cabinet Government (Sir Ivor Jennings, $1903$-$1965$) or Prime Ministerial Government (Richard Crossman, $1907$-$1901$-$1974$).
• Presidential System:
  • Independence: The executive branch is independent of the legislature regarding tenure and actions.
  • J.W. Garner's View: The chief executive is independent and the nominal head is also the real executive.
  • Prevalent Locations: United States of America and Argentina.
  • Appointment: The President is elected for a fixed period (directly or indirectly) and can only be removed via impeachment based on Constitutional grounds.
  • Principle: Functions on 'separation of powers' and 'checks and balances.'

Unitary and Federal Forms of Government

• Unitary Government:
  • Structure: The whole state is organized under a single central government. Units/provinces are subordinates created for administration.
  • Power Source: Constitutional power is conferred upon a central organ; local governments derive their existence and authority from the center. There is no constitutional division of powers.
• Federal Government:
  • Structure: Governmental power is divided by a national Constitution between a central government and individual states/sub-divisions.
  • Autonomy: Local/provincial governments are considered part of the central government but possess full autonomy.
  • Indian Context (Seventh Schedule):
  • National importance (international relations, war/peace, atomic energy) = Central Government.
  • Regional importance (State List) = State Governments.
  • Shared interests = Concurrent List.
  • K.C. Wheare's Observation: India's system is "federal in character and unitary in spirit."

Composition and Structure of the Legislature

• Legislative Symbols (Indian Parliament):
  • Shape: Circular, representing "Continuity."
  • Houses: Horseshoe-shaped.
  • Lok Sabha: Green carpet representing agriculture.
  • Rajya Sabha: Red carpet representing royalty and the sacrifice of freedom fighters.
  • Library: Second largest in India.
  • Dimensions: Circumference is $1/3$ of a mile ($536.33\,m$).
• Organization Models:
  • Bicameral: Two houses. Indian Parliament (Lok Sabha - House of People; Rajya Sabha - Council of States).
  • Purpose of Second Chamber: To check hasty legislation and provide expert advice.
  • Unicameral: One legislative house. Seen in Turkey (Grand National Assembly) and Bangladesh (House of Nation).
  • Support for Unicameralism: Represents interests through one body to avoid delays and conflicts.
• Indian State Legislatures:
  • India has $28$ States and $8$ Union Territories.
  • Unicameral States ($24$): Arunachal Pradesh, Assam, Chhattisgarh, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Kerala, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Puducherry, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, Uttarakhand, West Bengal.
  • Bicameral States ($6$): Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana, Uttar Pradesh.

Comparison: Unicameral vs. Bicameral

• Number of Houses: Unicameral has one; Bicameral has two.
• Power Sharing: Unicameral centers power in one house; Bicameral shares it between two.
• Decision-Making: Unicameral is flexible and efficient (single-house passage); Bicameral is time-consuming (approval of both houses required).
• Suitability: Unicameral is best for smaller states; Bicameral is suited for larger states.

General Functions of the Legislature

• Etymology: 'Parliament' comes from the French 'parler' (meeting for discussion).
• 1. Formulating State Will: Expresses public opinion and sentiment. Laws once enacted are called 'Acts' (e.g., Consumer Protection Act, $1986$).
• 2. Executive Accountability: Under Article $75(3)$ of the Indian Constitution, the Council of Ministers is collectively responsible to the Lok Sabha. Controls include financial oversight, questions, calling attention motions, and No-Confidence motions.
• 3. Legislative Procedure:
  • Bill: A statute in draft form. Needs approval from both Houses and Presidential assent.
  • Government Bill: Introduced by a Minister.
  • Private Member's Bill: Introduced by a non-minister member.
  • Constitutional Articles: Articles $107$-$108$ (Ordinary Bills); Articles $109$-$110$ (Money Bills); Article $111$ (Presidential Assent).
  • Money Bills: Limited to tax, Consolidated/Contingency Fund matters. Introduced only in Lok Sabha.
  • Annual Financial Statement: Article $112$ requires the President to present the estimated receipts and expenditure to Parliament. Usually passed after three readings.
• 4. Judicial Functions: Hearing impeachment cases for the President, Vice President, Judges, and Chief Election Commissioner. Decisions on member privileges.
• 5. Administrative Functions: Forms the electoral college for electing the President and Vice President. Elects Speaker, Deputy Speaker, and Deputy Chairman.

General Functions of the Executive

• 1. Administration:
  • Internal: Law and order, finance, infrastructure, welfare (health, education), resource management.
  • External: Defense, foreign affairs, international relations.
• 2. Legislative Functions:
  • Delegated Legislation: Parliament authorizes the executive to frame rules, regulations, and by-laws to clarify details of Acts.
  • Ordinance (Article $123$): The President promulgates laws during Parliamentary recess on Cabinet recommendation. Must be approved by Parliament within six weeks of re-assembly.
• 3. Financial Functions: Collection of taxes, preparation of the budget, maintaining departmental accounts, and arranging grants from entities like the IMF or World Bank.
• 4. Judicial Functions: Power to grant pardons and suspend, remit, or commute punishments after conviction.

General Functions of the Judiciary

• 1. Dispute Deciding: Hears cases between citizens, citizens/state, federated units, or departments. Requires independence and impartial, time-bound delivery.
• 2. Judicial Review: Power to examine legislative acts and executive orders; can declare them null and void if they contravene the Constitution.
• 3. Jurisdiction: Ranges from Magisterial and District courts to High Courts and the Supreme Court. Covers civil, criminal, territorial, and pecuniary limits. Includes specialized tribunals (e.g., Motor Accident Claims Tribunal).
• 4. Interpretation: Analysis of laws that are ambiguous, silent, or inconsistent.
• 5. Advisory Role: Article $143$ allows the President to refer specific matters to the Supreme Court for advice.
• 6. Judicial Activism: Post-Emergency emergence of Public Interest Litigation (PIL) to help the marginalized.
• 7. Administrative/Legislative Role: Power to frame internal rules to ensure judicial independence.

Questions & Discussion

• Q-1: Provide differences between Monarchy/Democracy, Parliamentary/Presidential, Direct/Indirect democracy, Lok Sabha/Rajya Sabha, and Unicameral/Bicameral legislatures.
• Q-2: Give examples of: Unicameral legislature country, Presidential government country, Absolute monarch country, Direct democracy country, Constitutional monarchy country.
• Q-3: Write brief notes on: Money Bill, Annual Financial Statement, Democracy, Unitary government, and Judicial function of executive.
• Q-4: Explain the roles of the Legislature, Executive, and Judiciary.
• Q-5: Application case: Amerintina (representative government) vs. Plicia (self-governance by citizens). Identify the forms (Indirect vs. Direct Democracy) and differentiate their processes.