Changing Role of the Legislature

K. B. Muhamedkutty

It would perhaps appear a truism to state that the Institution of Legislature occupies a significant position in the constitutional structure of every country. The ultimate goal of all Legislatures is the public welfare. The needs of public welfare have varied from time to time and the roles of Legislatures have also changed accordingly.

Time was when all assumed that the Legislature made the law. In the placid days of the nineteenth century this could very well be so. Today, however, emperical and inductive investigations have left little doubt that the role of Legislature in law-making is only a formal one. The stuff of law, the substance of legislation, is moulded in the policy-making kiln of the executive government. The main role of Legislature today has come to be control and supervision of administration, and this aspect of the matter has been attempted to analyse in the following pages. Legislative control by itself is a very important role in the context of the State emerging as an Administra- tive Leviathan, thus incidentally endangering the basic human freedoms.

Evolution of Legislature 'Legislature" is a common name for Parliaments,' Congresses' and similar other body of persons or Assemblies' 'chosen by constituents in a given area to represent them in enacting measures for the public benefit." Legislature is basically charged with the making, amending

I. Originated from 'Legislatio', which means, 'proposing of a law'. The first known use of the word ' Parliament ' is found in the old French epic, La Chanson de Roland, See David Menhennet & John Palmer, Parlia- ment in Perspective, London, 1967, p. 13. The word has been found to be in use in the phrase en sun plemer parlement of Jordan Fantosme, who wrote towards the end of Henry H's reign, See, A. F. Pollard, The Evolution of Parliament, 2nd Ed., Longmans, p. 32. By about 1240 the Latinised or French form of Par/ementum or Parlement used in England for meeting at which the King discussed with the tenants-in-chief 'the whole state of the disorder- ed realm', to use the words of Mathew Paris at the time. Derived from Latin Congress (us), a coming together. Derived from assimulare (Vulgar Lath* to bring together. John C. Livingstone and Robert G. Thompson, The Consent of the Governed', reproduced in Focus, Vol. II, No. 3, April, 15, 1972, p. 4. 116 COCHIN UNIVERSITY LAW REVIEW 19 7 if— or repealing of laws and with the raising and appropiration of revenues. Several parts of ancient India had democratic Legislatures.' Three thousand years ago the people of Greece met and debated in their `agora' or the assembly. The Latins of ancient Italy similarly assembled in their `comita'. The Cortes consisting of represent- atives of towns and districts of Spain began to function in the twelfth century. The peasant democracy of Switzerland with all the citizens assembling in their folk-moot is as old as the thirteenth century.' But Legislatures under modern democracies are modelled more or less on the lines of the British Parliament. The British Parliament, because of its long and continued history , 'is not only the mother of Parliaments', says Ivor Jennings, 'but their preceptor'.' Other nations have had their indigenous representative systems, but they have all been abandoned or profoundl y modified under the influence of British ideas.' The institution of Parliament is a valuable gift of the English people to the modern civilization.

It is rather difficult to trace historically the origin of the British Parliament, for, the British constitutional and legal history is also the history of parliamentary institutions. As Colin Rays Lovell says, "few things in English constitutional history can be said to have started at a particular moment; 'first causes' usually remain un- known, and exact dates cannot be given when we come to discuss the origins of such institutions as Parliament or the cabinet. //10

It is generally accepted" that the kings of Anglo-Saxons who migrated to England from central and western Germany between the fourth and the seventh century developed a custom of summoning their great and wise men to give them counsel and support. This meeting of great and wise men was known as Witenagemot Marriot observes that the work of the Witenagemot was at once administra- tive, legislative and judicial." The Normans who came to England in

See, Radhakumud Mukherji 'Democracy in Ancient India', The Journal of Parliamentary Information, Lok Sabha Secretariat, Vol. II, No. 1, p. 49. Sir Earnest Barker, Essays on Government, Oxford, 1965, p. 57 67. Sir Ivor Jennings, Parliament, Cambridge, 1969. p 517. A. F. Pollard, op. cit., p. 3, Lovell. English Constitutional & Legal History, 1962, Introd. Sir J. A. R. Marriot, English Political Institutions, Oxford, 1955. 12. /bid, p. 136. MUHAMEDKUTTY 117 .1066 followed the Anglo-Saxon tradition of summoning the Witenagemot which they further developed. Under the Normans the Witenagemot began to be known by the title Commune Concilium. As the eleventh century advanced, the administrative and judicial work was assigned to a committee of the Commune Concilium which was known as Curia Regis or Concilium Regis. The Barones minors or knights who were lesser tenants (as distinguished from Barones majors who were greater tenants) began to appear in the Commune Concilium in a representative capacity by 1 2 13. The kings summoned them as representatives of the commons in order to win support for their taxation proposals. On one occasion in 1254 'two lawful and discreet knights' from each of the shires were summoned to Westmi- nister to gather extra-financial assistance. According to David Men- hennet and John Palmer, this express connection with the raising of money marked an important early step in the evolution within the king's court of a representative assembly, for, 'the knights were summoned in the name of one and all.'"

In 1265, Simon-de-Monfort, Earl of Leicestar, brought together for the first time knights of the shires, burgesses and merchants from the cities as representatives of the community at a discussion of poli- tical and national importance in which, of course, the barons and bishops also participated. This meeting came to be known as 'Mont- fort's Parliament' and is now accepted to be the first real Parliament." In the year 1295 Edward 1 au mmoned a representative Parliament and men came to speak of it as the 'Model Parliament'. But the model had already been set in the year 1265. Edward's Parliament did not theref ore deserve that name.

In the beginning the King's Assemblies consisted of only few feudal magnates. The non-noble elements had later became essenti- al to Parliament, and consequently two knights from each country and two burgesses from each borough were sent to Parliament in representative capacity. The knights and burgesses were natually drawing together, but their association with barons in Parliament had no social basis. The nobles — barons and bishops — did not regret the departure of the knights and burgesses. Upto the early f our- teenth century there was only one House of PPrliament." The rolls

David Menhennet and J. Palmer, op. cit., p. 24. The Seven Hundredth anniversary of the British Parliament was celebrated in June, 1965. 15 David Menhennet and J. Palmer, op. cit., p. 24. 118 COCHIN UNIVERSITY LAW REVIEW of Parliament reveals that by 1332 the two groups were meeting separately -- the nobles in White Chamber and the knights and burgesses in Westminister Palace. As a result of this, any matter affecting the two groups had to be approved by both. From this sprang the convention which came to be regarded as an essential part of bicameralism, that both Houses had to approve everything in the same manner before it could be said to have come from Parliament.

As early as 1372 the body which represented the communities of shires and boroughs came to be regarded as the people's branch of Government against kings and dukes and nobles and barons and it was called the House of Commons. Being the representative body of the common people, its authority enhanced. The right to vote initially confined to propertied class developed gradually into uni- versal adult franchise. The commons were mindful of the duties cast upon them. 'They are the servants of those who send them, and if they are false to the men of shires who pay their wage, they are not worthy of their hire.' 16 To grant or withhold revenue was the real power which enabled the commons to control the purse of the realm. Financial authority thus became the fulcrum of parliamentary machine, which, eventually provided opportunity for the commons to press certain claims or to ask for the redress of grievances before they consented to the king's demands. The commons gradually secured legislative power."

Any encroachment on the powers of the commons by the kings was severely resisted. Charles I, who consequent on the present- ation in 1628 of the Petition of Rights, dissolved Parliament was beheaded in a bitter civil war. James II (1685) who wanted to establish Pope's ascendency contrary to the will of the people could not resist the power of the Parliament and had to abdicate. This followed the ascendency of William and Mary paving way to the Bill of Rights of 1689, which widened the freedom and authority of the Parliament. In each encounter with the king, the Parliament reinforced its authority.

In the earliest days the feudal lords used to select one of them to go to the king and speak in their behalf. But it was in 1377 a 'speaker' came to be appointed, whose duty was to report to the king the result of the deliberations of the commons. He was so

A satirist declared this in 1399, See David Menhennet, op cit., p. 25. See, post, p. 7. MUHAMEDKUTTY 119

called because he 'spoke for'" the commons as their mouthpiece and enjoyed liberty of speech in the chamber of Parliament. The Speaker for a long time was nominated by the king. A unilateral select!on of speaker by the commons could be vetoed by the king. The office of the speaker, however, grew in power keeping pace with the growth of the House of Commons into a powerful body. In the past Parliament functioned mainly as a judicial body and because of the magnitude and importance of its judicial work the institution was called the 'High Court of Parliament'. Parliament met thrice a year and heard petitions of those who were denied justice." Pollard said: "Mainly, however, the business of Edward l's Parliament is to deal out justice." 2° A good number of petitions used to be filed before English Parliament. It has been recorded that 150 petitions were presented to the Parliament of Michaelmas held in 1290, notwithstanding that two other Parliaments were already held in the same year." Only petitions of special difficulty were permitted to be heard by Parliament. Some of these petitions were heard in other courts also. Yet it would not be correct to assume that the High Court of Parliament was a supreme court of appeal. It acted more often as a court of first instance, and not as a court of error." "A parliament is called 'high' court, says Pollard, "because it is le plus frank leu d'Engletence, the most open and free of all English courts."

The petitions before Parliament came from all sorts of men and corporate bodies. A king of Norway and a king of Scotland are found petitioning Edward I in his Parliament. With the help of Attorneys the King himself prosecutes his suits before the Parliament. People from all walks of life — earls, barons, bishops, clergymen, merchants, foreigners, scholars of Oxford and Cambridge, poor village folk and

`Prolocutor' is his earliest official title. Richardson and Sayles, quoted in Alan Harding, A Social History of English Law, Penguin, 1966, p. 225. A. F. Pollard, op cit., p. 35. An Ordinance of 1311 runs : "Whereas many folk are delayed in the King's court because the defendants allege that the plaintiff ought not to be answered in the absence of the King, and many also are wronged by the Ministers of the King, which wrongs they cannot get redressed without common Parliament, we ordain that the King hold a Parliament once a year, or twice if need be, and that in a convenient place..." Ibid., p. 33-34. 21 Ibid., p.41. Maitland, Memoranda, quoted in Ibid., Ch. II. Ibid., p. 40. 120 COCHIN UNIVERSITY LAW REVIEW even prisoners looked upto Parliament for justice. So also shires, cities and boroughs, royal officials and judges. Most of the peti- tions were individual requests for legal relief, for royal favour or for redress of private wrongs. Of the five hundred petitions presented in the Parliament of 1305, only five dealt with matters of public concern." In most of the Parliaments during the reigns of Edward I and II no financial assistance was asked for. Some of the early Parliaments were convened in response to the pressing demand from the commons and barons. In 1258 the barons demanded three Parliaments anually• The Lord Ordiners also demanded one or more sessions of Parliament a year. It was the commons who took up the cry under Edward III. Parliament was desired by all of them not because they welcomed taxation imposed on them by Parliament, but because of the justice dispensed by Parliament. The House of Lords came to be known as such from the reign of Henry VIII. Of the deliberative and judicial functions of this aristocratic element in the British Constitution the latter is more important. In Skinner v. The East India Company" the competence of the Lords to act as a court of first instance came up for consideration. Thomas Skinner petitioned the Crown for redress of his grievances due to the opression of the East India Company. The Crown referred the case to the Lords, who there- upon proceeded to exercise an original civil jurisdiction. On recei- ving a petition from the Company, the Commons raised the plea of privilege on the ground that certain members of the company were also members of the House of Commons. In the quarrel that followed, the Commons succeeded on the King's intervention. In Shirley v. Fagg." (1675) the Lords entertained an appeal against the Court of Chancery for which there was no resistance from the Commons. The right of the Lords to entertain appeals was thus tacitly acknowledged.

Rise of Parliamentary Legislation Throughout the medieval period, from Plantagenet times on- wards, the King was possessed of legislative powers." Legislation

Ibid., p. 117. Sir J. A. R. Marriot, op. cit., p. 149. Ibid., p. 150. Barrochlough, 'Law and Legislation in Medieval England', Law Quarterly Review, Vol. 59, p. 75. MUHAMEDKUTTY 121

by Parliament is a subsequent development. The practice of pre- senting individual petitions before Parliament came to a standstill since no heed was paid to such petitions. Instead, the practice of submitting common petitions developed. The growth of common petitions was the direct result of the common gathering of knights and burgesses. The common petitions led to common deliberation and common action, and the common action became a habit, the habit an institution and the institution a House.". If heed is not paid to common petitions the commons having the power to control the purse were able to make the government impossible. These developments converted the High Court of Parliament gra- dually into a legislative body. The gradual transference of legislative functions from the King to Parliament began in a small way from the fourteenth century. Almost upto the fifteenth century the King's legislative power was not negligible. During the fifteenth century and thereafter, however, the legislative function of the Parliament became predominant. It is generally accepted that the 'Statute', which seems to have meant 'something decided on', originated in 1327. 29 The demand of the knights in Parliament that the substance of the commons, petitions should be put in writing under the great seal gave rise to the 'Statute'. The knights believed that in so doing 'the Sheriffs might cause proclamations to be made accordingly'." The official drafting of proclamations on the petitions was found to be mislea- ding and unsatisfactory. In 1340 Parliament constituted a Commis- sion to put the petitions which the King had granted into statutory form. The King and Council still made changes, however. In 1348 the Parliament suggested to the King that this practice be dispensed with. The King, though readily accepted this suggestion did not implement it. In order to prevent the King and officials from tam- pering with the measures there was only one alternative left-to prepare measures in exactly the form in which it desired to assent. Parliament did accordingly. This was the beginning of legislating by bill by about the close of the fourteenth century.

Towards 1400 contrary to the prevailing practice, some petitioners addressed their pleas to the commons direct, asking them

Pollard, op. cit., p. 120. Sir C. K. Allen, Law in the Making. 7th Ed., Oxford, 1966, p. 436. Alan Harding, op. cit., p. 226. 122 COCHIN UNIVERSITY LAW REVIEW to intercede for them to the King. Those petitions were granted by the King 'by the assent of the commons' as important petitions had long been granted 'by the assent of the Lords'. The practice bywhich bill can be proceeded from either House to the other came into being accordingly.' The authority of Parliament to legislate developed as a result of sixteenth and seventeenth century conflict between the royal pre- rogatives and Parliament. The Judges of England generally spea- king, showed awareness of political realities and blessed the Par- liament in this conflict." Sir Edward Coke asserted as early as 1605 in a statement that 'the law of the realm cannot be changed but in Parliament'," and reiterated the same view in the Case of, Proclama- tions." The law-making power of the Parliament was transcendent and absolute." Blackstone" and Dicey" re-echoed the same prin- ciple. The English people were left with three alternatives for preven- ting a monstrous tyranny: sovereignty might be limited; it might be divided; it might be kept in tact, but entrusted to ministers res- ponsible to the nation for every detail of its exercise. All the three were tried in turn by England during the seventeenth century and experience taught it to prefer the third."

The English practice of legislating through people's Parliament was adopted with necessary changes by several countries of the world, including India. In every country, parliamentary legislation

Alan Harding, op. cit., p. 226. Of course some of the Judges upheld the prerogative power of the King see Case of Imposition (1066) 2 St. Tr. 371 and Case of Ship Money (1637) 3 St. Tr. 825. Some 'fudges declared that they reserve to themselves the power to regard as void Act of Parliament which is against common right and reason, or repugnant or impossible to be performed: See, Bonham's case (1610) 8 Rep 114, 118; R. v. Banbury 1695; City of London Wood 1701 12 Mod. 669-687. But the common law no longer claims any authority to control Acts of Parliament See Lee v. Bude (1871) L. R. 6 C. P. .576, 582. Tanner; English Constitutional Conflict of the Seventeenth Century, p. 36, quoted in Sir Ivor Jennings, op. cit., 473. (1610) 12 Co. Rep. 74. 2. Inst. Proem., cited in A. V. Dicey, Law of the Constitution, 10th Ed, London, 1962. A. V. Dicey, Ibid. Ibid. Pollard, op. cit.; p. 234. MUHAMEDKUTTY 123

had a modest beg inning, but due to the inevitable fall of the laissez faire State and the emergence of modern welfare State, Legislature no longer remained to be slumbering, sluggish and unproductive. Under genuine parliamentary democracy Legislature is perhaps the most hard-working, most powerful and most dynamic institution. But, as Sir Ivor Jennings has said, 'strangely enough, it nearly always appears to do something which is quite different from what it really is doing.'" Changing Methods of Legislation In the eighteenth and first half of the nineteenth centuries laws touching matters of individual, local or corporate interest were made by private bill legislation. A Private Bill commences by petition. The Select Committee for Private Bill Legislation of one or other House to which the Bill is referred acts as a judicial tribunal before whom promoters or the opponents of the bill appear through counsel." Prior investigation of the subject-matter of the legislation was almost nil in this type of legislation. Parliament was mainly concerned with the propositions, counter-propositions and suppor- ting evidence put forward by private parties. Since the Crown cannot petition Itself no Private Bill is ever introduced by the Government in England.

Social and economic changes were brought about by Private Bill Legislation. Enclosures of agricultural lands, railways, docks and harbours, navigation of rivers, prevention of flood, water supplies and local authority services were undertaken through this process." Excepting emergency legislation, initiation for legislation for the most part, observes Holdsworth, was left to individual peers or members of the House of Commons." Maitland has qualified the eighteenth century as the 'age of privilegia'.'3 The reasons for resorting to Private Bill Legislation are stated to be mainly two Firstly, it was a device for minimising royal service which was mistrusted by Parliament. Through such a device

Sir Ivor Jennings, op. cit., p. 519. Anson, William, R. The Law and Custom of the Constitution, Vol. I, Parliament, 5th Ed. Oxford. 1922, p. 309. W. A. Walkland, The Legislative Process of Great Britain, London, 196S P. 12 • Sir William Holdsworth, A History of English Law, Vol. IX, p. 371. F. W. Maitland, The Constitutional History of England, pp. 383. 4, quoted in S. A. Walkland, op. cit., p. 13. 124 COCHIN UNIVERSITY LAW REVIEW Parliament could establish control over the grant of powers to vari- ous institution:, and authorities. Secondly, Private Bill legislation was suitable to a society devoid of any concept of broad social and economic reform. The nineteenth century witnessed a decline in the monarchical system consequent on the Reform Act of 1932 and the extensive civil service Reform of the period 1780-1830, At this stage, Parlia- ment began to legislate with considerable vigour to overhaul the whole law of the country. According to Sir Courtney Ilbert, a great Parliamentary Counsel, the causes that materially altered the character and increased the volume of Victorian legislation were 'the shifting of the centre of political gravity after the Reform Act of 1832, the enormous strides of scientific discovery, commercial enterprise and industrial activity the new problems presented by the massing of great numbers in towns and factories under artificial conditions, the awakened interest in the moral, mental and material welfare of the working classes, involving demands for enlargement of the functions both of the central and local government.'" The Governmental obligations in the changed context were numerous and complex. The philosophy of Legislative Utilitarianism and Collecti- vism gave birth to a brave new era and the Parliament was vested with the responsibility of legislating innumerable laws required to meet the situation. The Private Bill Legislation was not suited to the changed circumstances; it inevitably gave way to Public General Acts, which was the typical legislative vehicle of the reformist governments.

In the next phase, one finds the rise of delegated legislation. Formerly Parliament enacted laws for every contingency. This rendered statutes exceptionally elaborate and detailed. Almost upto the nineteenth century, Parliament not only took care to provide for every exceptional case within the purview of the Act, but appended lengthy schedules of forms or tables of fees." Nothing was left to the discretion of the executive. In taxing statutes even tl e methods of tax collection were strictly 'laid down.". The reason for this attitude may be that 'Parliament was still smarting from the encoun- ters of the preceding age and still suspicious of the executive.° But

44. Courtney Ilbert, Legislative Methods and Forms, Oxford, 1901, pp. 212-213. 46. John Wills, The Parliamentary Powers of English Qovernment Departments, Cambridge, 1933, p. 52. Ibid. Sir C. K. Allen, Law and Orders, 3rd Ed., London, 1965, p. 28. MUHAMEDKUTTY 125 owing to the extensive social, economic and political activities of the nineteenth century and the well known limitations" placed on the Legislature, the Parliament was forced to delegate some of its legisl- ative powers to the executive. In the twentieth century the process of delegated legislation was much accelerated. Prof. A. T. Markose sums up in a sentence the reasons for this immense growth of delegated legislation:" "Owing to the intricate and complex system cf Government that exists in a modern State and the vast expansion of social legislation that has taken place in modern countries including India within the last few decades an unprecedented growth of the administrative process has taken place". Many matters of vital import to large sections of the public are being subjected to this process." In England, for instance, in 1952, the number of public general Acts of Parliament numbered only 64, whereas the number of delegated legislation made under Acts of Parliament totalled 2312." The Indian Parliament enacted 1,222 laws between 1950 and 1968 inclusive of the amendments. The statutory rules and orders during the corresponding period comes to 60,530.5' Subordinate legislation greatly exceeds Acts of Legislat- ures and a variety of human activities everywhere are governed by it in a big way. Day to day life of the people are far more concerned with laws of the executive than the laws of the Legislature.

The Complex Process of Legislation

A proposal for legislation may be for curing some defect in the existing organisation of society, for implementing reforms leading to what is considered to be right and moral, for plugging some loop- holes in the existing laws, for tackling new problems of inventions, resolving clash of interests between two sections of the society, for circumventing decisions of courts of law or for raising revenue. When such proposals are enacted into laws, it could be easily dis- cernible but legislation is a multi-stage process beginning from the conceiving of a measure to its culmination in an enactment.

Cmd. 406n. Markose, A, T., Judicial Control of Administrative Action in India: A Study in Methods, Madras, 1956, p. 1. C. T. Carr, Delegated Legislation, Cambridge, 1921, quoted in Ganguly. Administrative Legislation in Modern India, Calcutta, 1968. Macrid Ward [ed] Modern Political Systems of Europe, p. 116. 62. N. N. Mallayya, Indian Parliament, New Delhi, 1970, p. 146. 126 COCHIN UNIVERSITY LAW REVIEW

Different criteria and constraints operate at each level." 'Woodrow Wilson says: `(Legislation) is an aggregate, not a simple production. It is impossible to tell .how many persons, opinions and influences have entered into its composition." S. K. Bailey, analysing a piece of American legislation observes:"

"One generalisation is that the process is almost unbelievably complex. Legislative policy- making appears to be the result of a confluence of factors streaming from an almost endless number of tributaries: national experience, the contributions of social theorists, the clash of powerful economic interests, the quality of presidential leadership, other institutional and per- sonal ambitions and administrative arrangements in the executive branch, the initiative, effort and ambitions of indivi- dual legislators and their governmental and non-governmental staffs, the policy commitments of political parties, and the predominant culture symbols in the minds of both leaders and followers in Congress."

Of the several factors that influence the process, some of the important outside groups and institutions are briefly dealt with here.

The Departments, The Committees, The Lobby And the Law-making The cabinet (which is sometimes wrongly described as a corn- mitte of the Legislature) under the parliamentary system strives to implement party policies. Every bill which is laid before the Legis-

S. A. Walkland, op. cit., p. 11. Woodrow Wilson, Congressional Government, quoted in Ibid, p. 21. S. K. Bailey, Congress Makes A Law, New York, 1950, p. 136. In 1950 the Woodrow Wilson , Foundation Award for the best publication in the field of government and democracy was given to Dr. Bailey for this important work. He appeard as a witness before the House Select Commitee [U. S. A.] on Lobbying Activity. The Chairman of the House said on that occasion: "Our next witness, Prof. Stephen Kemp Bailey, has done a remark- able job in political research and reporting. I think it is a pioneering job in its field. Before the Employment Act of 19.46 was passed, he became interest- ed in studying the vsrious preasures at work in shaping this important piece of legislation. He interviewed hunderds of people who had some hand in shaping these pressures. He visited the Congressional district of each mem- ber of the Conference Committee to study the background of the member and the composition of the district and the attitudes of its voters, and out of this he tried to explain the very complex machinery of legislation in terms of time and space and people", see Frank C. Newman and Stanley, S. Surrey, Legislation: Cases and Materials, 1955, p. 112. MUHAMEDKUTTY 127 lature comes with the 'imprimatur' of the cabinet. The cabinet is thus responsible for all laws. In the words of L. S. Amery: 'The central directing instrument of government in legislation as well as in administration is the cabinet. It is in the cabinet that administrative action is co-ordinated and that legislative proposals are sanctioned. it is the cabinet which controls Parliament and governs the country." "The exercise of law-making power by Parliament", says Wade, "is controlled almost exclusively by the Government of the days, placed in power by the possession of a majority in the Commons.""

The bulk of the legislative proposals placed before the cabinet emanates from the needs or experiences of various departments of government. This is more so when the government represents a wel- fare State. There are also annual and consequential legislations to be initiated by the departments: the Finance Bill, the Consolidated Fund Bills, the Appropriation Bills etc. The Government, accord- ing to Ramsay Muir, names all important legislations and proposes all taxes, carrying them by the voting power of the supporters in Parliament."

Since modern legislature is busy with numerous bills and is not equipped itself with necessary expertise to understand their technicalities, Select Committees are appointed to go through the text of bills clause by clause and word by word, if necessary, and suggest amendments or modifications taking into account the various aspects of the proposed legislation. On several occasions such committees have recommended useful amendments to bills. The lobby influence or pressure group activities in the sphere of legislation are now widely acknowledged. Whenever a body of persons who share the same basic interests and points of view group themselves together to achieve an end which demands some kind of pressure on government or Legislature they are termed as 'lobby' or pressure groups." A great number of pressure groups manage to elect their ardent supporters as legislators. The appointment of legislators by such groups to honotary posts is another device for

L. S. Amery, Thoughts on the Constitution, London, 1964, p. 70. Wade, Introd. Dicey, Law of the Constitution, op. cit. Ramsay Muir, How Britain is governed, 3rd Ed., 1933, p. 33. Political representation through the election of legislators is not always enough for securing the necessary consent, Some writers are of the view that the pressure group organisation is a type of functional representation overlying the nomal representative system. 128 COCHIN UNIVERSITY LAW REVIEW securing representation. As J• D. Stewart stated, 'it gives the group a foothol d in the House."

Mainly there are two kinds of pressure groups: namely, sectional spokesman group' who defend the interest of a section of the com- munity; and 'promotional group' who function to furthering a part- icular policy. Both the groups enter the preparatory stage of legislation in different ways and at a number of levels The Legislature usually takes note of the views of these groups, whose adherence to laws is often necessary for the successful implementation.

There are both legitimate and dubious lobbying. Some have therefore advocated for regulation of lobbying by appropriate legisl- ation and a system of surveillance." In the U. S. A. the Federal Regulation of Lobby ing Act of 1946 provides for such regulation.

Sir Ivor Jennings has attempted to trace the origin of the laws passed by the 1936-37 sessions of the British Parliament. He has remarkably analysed each statute with reference to the dominant in- fluence on its origin. Of the various statutes passed during the period, twenty-seven were departmental legislation, nine were poli- tical in origin, nine resulted from the influence of the pressure groups, seven were derived from departmental policies modified by outside pressure, three originated from cabinet policy modified by pressure group activities, two could be attributed to local govern- ment associations and two emerged out of the efforts of Private Members of the House." Any observer of legislative process in a parliamentary system cannot disagree with Sir C. K. Allen when he remarked that "the elements which contribute to the framing of modern legislation are numerous and diverse. They are bound to be so in crowded communities where public opinion is not one colle- ctive and unanimous sentiment, but is fragmented among many different sections and interests.""

The Decline of Law-making Power of the Modern Legislature

The paramount goal of Legislature under parliamentary system is to achieve the over-all national progress and the fulfilment of the

J. D. Stewart. British Pressure Groups: Their Role in Relation to the House of Commons, Ch. 8. L, M. Singhvi, 'Parliamentary Reform', The Times of India, Oct. 31 and Nov. 1, 1969. Sir Ivor Jennings, op. cit., Appendix 2. Sir C. K. Allen, Law in the Making, Oxford, 1958, p. 418. • MUHAMEDKEITTX 129

needs and aspirations of the people. The needs and aspirations of the people change, and Legislature, like all other institutions, is amenable to change: Of all institutions vitally concerned with human welfare, it is perhaps the most dynamic. It has been subjected to changes and vicissitudes in consonance with the changing values, attitudes, obligations or compulsions, of time. Of these, the most important, but the least noticed is its declining legislative power.

The institutions and groups and other forces working in the process of legislation and acting as the sources of legislative policy tend to show that the influence of Legislature is very little in the actual legislative process. As is well-known, policy-making today is not the business of the Legislature. The Legislature is, in fact, unsuited to this task due to the complexity of the processes and also due to its unwieldiness. A study of the factors which sometimes directly and sometimes indirectly contributed to the decline of the Legislature as a law-making body is made presently.

Originally, as indicated already, there was no practice of dele- gating legislative power to the executive. Laws were enacted by parliament alone. The structural inadequacy of the Legislature to cope with the modern conditions and needs of society led gradually to the methods of delegating legislative power to the executive and this gradually led to the erosion of legislative power, especially in the absence of adequate safeguard against any possible abuse of power. The claims that the legislative scrutiny of delegated legisl- ation asserts the power of the Legislature is without any foundation since such scrutiny as at present available is wholly unsatisfactory. Prof. A. T. Markose, sums up the inadequacy of the control of delegated legislation in India:"

‘,... . Apart from the institution of the Committee on Subor- dinate Legislation in the Parliament and usually very general common provision for 'laying on the table, provided in the Parent Act, the only general safeguard against possible abuse of power is found in the good old General Clause Act." As a remedy Prof. Markose has suggested the introduction of "detailed and modern methods of procedure as are inserted in the Administrative Procedure Act, 1946 of the U. K.". In India as there is no general law or single statute making it obligatory that

64. Markose, A. T., Public Law: Some Aspects, Bangalore, 1971, p. 40, 130 COCHIN UNIVERSITY LAW REVIEW all legislations made by the delegated authority are to be laid before the Legislature, laying is not essential in all cases. Many a statute, it may be seen, do not provide for laying." In statutes where laying is prescribed, there is inexcusable delay in placing the instru- ments before the House•" The way in which the Committee on Subordinate Legislation is functioning is far from satisfactory. From the record of attendance of the meetings of the Committee in the Indian Parliament it seems that the members are not at all interested in their work. The minutes of the Committee reveals that out of 44 meetings held during 1954-1%0, not a single one was attended by all the members. Attendance at 20 meetings varied between eight and ten, and at 21, between five and seven " 7 The work turned out by the committee appears to be fantastic! The committee sat for only 1387 minutes (i. e. 23 hours and 7 minutes) between 1954 and 1960 for examining 3440 orders. The committee thus spent only slightly over 24 seconds for the scruting of each order. The actual time spent might be still less since the meetings were not always con- fined exclusively to the scrutiny. The average time taken for the scrutiny of each order during the period between April 11, 1967 and February 13, 1968 is a little over 18 seconds, that is only 13 hours and 15 minutes for the scrutiny of 2641 orders." The provisions of a good number of Acts required mere laying of the statutory instruments and the period for which they should remain on the table is not specified in them. In such statutes there is no provision for a resolution by the House to modify or approve or annul them. Laying is provided just for the sake of information." Laying is thus often reduced to the observance of a formality and the very purpose of it is defeated. There are instances of failure to lay as well both in

See for example, The Police Act of 1861, The Ancient Monuments Preser- vation Act of 1904, The Pharmacy Act of 1948, The Telegraph Wires [Un- lawful Possession] Act of 1950, The Air Force Act of 1950, The Drugs [Control] Act of 1950, The State Financial Corporation Act of 1951, The Plantation Labour Act, 1951, The Presidential and Vice Presidential Election Act of 1952, The Inflammable Substance Act of 1952, The Special Marriage Act of 1954, The Newspaper [Price and Page] Act of 1956, The Railway Passenger Fare Act of 1957, The Working Journalists [Fixation of Rates of Wages] Act of 1958. In some cases the delay was well over three years. Several Committees on Subordinate Legislation in India have often pointed out this glaring defect. Committee on Subordinate Legislation, 4th Lok Sabha, Minutes 67-68, quoted in Ganguly, op. cit., pp. 173-4. Ibid. Brahma Bharadvaja, 'Instrument of Parliamentary Control', (1972) II S, C J. (d t. 15. 12-1972) p. 74. MUHAMEDKUTTY 131

England and in India. In England, when it was publicly known that the Home Minister had failed to lay a number of Fire Service Re- gulations, Parliament had to pass an Indemnity Act (The National Fire Service Regulations (Indemnity) Act, 1944). The Indian Parlia- ment resorted to the same method to circumvent a similar situation." Thus, the officials who man the executive enjoy very wide general powers in framing statutory inst ruments, the only restraint on their discretion being that they should not be ultra vires the parent Act and the Constitution where there is one. The built-in safeguards supposed to be provided through the laying procedure and the Com- mittee on Subordinate Legislation appears to be more imaginary than real. Besides the direct conferment of legislative power upon the ex- ecutive through delegation, the legislative power flowed indirectly to the executive. There is at present increasing quantity of bills wholly prepared by the executive departments and channelled thro- ugh the cabinet. In such cases the executive has a practical, monopoly of the legislative initiative and is engaged in legislative work in a con- structive manner. It could be seen that in the nineteenth century, Parliament in England actively participated in the process of investi- gation before laws were enacted. A good number of important re- forming statutes of the Victorian period were the direct outcome of the reports of select committees of the Parliament, appointed to gather facts before the bill is introduced. The prominance of the party or- ganisation after the Reform Act of 1867 and the advent of the mod- ern civil services put an end to the practice of appointing such select committees. What the Parliamentary Clerks were doing for the legislators began since then to be done by the officials of govern- ment departments, and the initiative for the introduction of import- ant legislations passed into the hands of the executive." Further. due to shortage of time, the Legislature does not get opportunity to discuss the lengthy departmental bills. The method of `guillitone' is adopted, by which the legislative time is rationed for discussing only principal subject matter of Bills. The clauses which confer vast delegation of powers are seldom debated, thereby the legislature not infrequently acquiesces in delegating essential legislative powers. As a corollary to these developments, the private members' time has been encroached upon by the executive. In this connection, it

Rajya Sabha Committee on Subordinate Legislation, 5th Report, p. 5. S. A. Walkland, op. cit., p. 71. 132 COCHIN UNIVERSITY LAW REVIEW is worth noting that in England important parliamentary debates in the past took place through the motions moved by private members like Mr. Fox, Mr. Burke, Mr. Whitbread, Mr. Brougham and others Now the executive has full control of the business arrangements on the floor of the Hnuse.72 The position of private members in English Parliament today has been subjected to severe criticism. Sir Ivor Jennings says:" "The time of the House is almost wholly taken by the Govern- ment. Only twenty Fridays are available for private members' motions and bills. If the pressure on Government time is great however, all or any of these days may be taken by the Govern- ment on a resolution passed, after debate, by simple majority; for this motion as for nearly all others the whips are put on and the Government supporters shepherded into the 'Aye' lobby..." The following table based on the data collected from the Secretariat of the Kerala Legislature reveals the insignificant position of private members' bills vis-a-vis Government bills in the State Legislature.

Position of Private Members' Bill in the Kerala Legislative Assembly Government Private Private Sessions bills bills bills passed passed introduced First Session (October, 1970) 10 Nil 1 Second Session

(March 1971) 20 77 Nil Third Session (June 1971) 15 1 Fourth Session (November 197 I) 5 Nil Fifth Session

(February 1972) 9 / Sixth Session

(September 1972) 22 7) Seventh Session

(March 1973) . • 11 /I ,, Whilst, therefore, the prestige and power of the private members are on the decrease, the status and importance of the executive in the field of legislation are correspondingly on the increase.

Sir Courtney Ilbert, op. cit., 214. Sir Ivor Jennings, op. cit., p. 355. MUHA MEDKUTTY 133

The growth of political parties and the development of party discipline after the Reform Act of 1832 has also strengthened the executive. The popular tendency to bestow more and mote attention to party leaders and the cabinet controlled by them began to be developed thereafter. The press, radio and other mass com- munication media stimulated this tendency. Before the extension of franchise the members of Legislat ure enjoyed more freedom and independence because of the loose organisational relationship. In those days the legislator 'was a placeman, voting and speaking as the owner of the seat bade him. If the political history of the nineteen- th century is examined a decisive number of votes in the House was capable of being turned in the course of the debate." But now almost all legislators are party men, whose sel ection as candidates for election are controlled by party organi sation. Since the electorate is populous, election campaign cannot be conducted personally by each candidate. So he became depende nt on the endorsement and support of party organisation. This in reality redu ced the House in matters of policy almost to a registration chamber. Debate, how- ever meaningful and persuasive, is unhelpful for changing a vote and the result of the division is clearly known before hand. At the most debate on the floor may be useful for the formation of public opinion which may weaken the govern-nent at the next general election.' The proceedings of the Kerala Legislature of 29th March 1973 clearly reveal the lack of active legislative participation in enacting bills into law. The agenda for the day was a le ngthy one which contained three Bills, three official resolution, one urgent resolut- ion, one calling attention mo tion, one half-an hour discussion, the Ralya Subha polling and the usual question hours. Yet the whole business was over before 12.30 a. m., that is thirty-five minutes before the scheduled time."

The exercise of vast powers by the p arty has considerably reduced the initiation and participation of the Legislature in respect of law-making. In the eyes of L. S. Amery this development is the most serious political menace to the parliamentary system, in

K. C. Wheare, Legislatures, London, 1963, pp. 60-61. Sir Gilbert Campion (ed), British Qovernment Since 1018, Allen and Unwin, 1950, pp. 2 0-21. quoted in H. V. Wiseman (ed) 'Parliament and Executive London, 1967, p. 141. 76. The Malayala Manorama, Malayalam Daily, March 30, 1973. 134 COCHIN UNIVERSITY LAW REVIEW that parliament is merely used as an instrument for carrying through the policies shaped without reference to it." The pressure group activity, as stated already, is a substantial source of legislative policy. And the activities of such groups at various levels of legislative process are freely permitted in an open society. The existence of pressure groups within limits and con- sulting their interest in settling matters is a healthy sign of parlia- mentary system. But the problem posed by the pressure groups is not that they are consulted, but they sometimes force their will upon the Legislature, distorting to their own advantage policy which is or should be designed in the public interest, or at least should constitute a fair compromise of conflicting interests. The process of law-making is also considerably influenced by the working of the Select Committee for legislation. As is clear from the reports of the Select Committees regarding the Hindu Adoption and Maintenance Bill, 1956, Electricity Supply (Amendment) Bill, 1955 the Judges Enquiry Bill, 1964 and several such other Bills, the Select Committees modify or alter legislative policies. It is at the Committee stage strenuous and politically motivated attempts are made for amending or altering Bills by various organisations and groups.

The cumulative effect of the various situations dealt with indicates that the general notion that the Legislature is the supreme law-making body is a baseless one. It is further submitted that the main role of the Legislature is not law-making, Legislation, no doubt, is an important work of the Legislature, but the time at the disposal of the Legislature is by no means wholly occupied for legislative purposes. Studies made in this respect show that a large chunk of the time at the disposal of the Legislature is spent for equally important task of administrative supervision and control. The following table based on the data collected from the Legislative Secretariat, Trivandrum, gives the distribution of time in the Kerala Legislative Assembly according to functions. The time spent for Finance Bill is excluded in calculating the time spent for legislation. This is because the discussion leading to the enactment of Finance Act is in substance debates on financial and economic policy of the government. So also the debates on Esti-

77. L.S. Amery, Thoughts on the Constitution, quoted in H V. Wiseman (ed) op. p. 161. See also W. Friedman, Law in a Changing Society, First Indian Print, Delhi, 1970, p. 29 and G. W Keeton, The Passing of Parliament, 2nd Ed. London, 10:51, Ch. 5 MU HA MEDKUTTY 135 mates, Supplementary Estimates and Consolidated Fund Bills are virtually debates on administrative policies and efficiencies. The table shows that the House spends only about 22% of the time in the year 1970-71 on the discussion of legislation.

Distribution of Time in the Kerala Legislature Sessions of the 4th Legislation Financial and other Kerala Legislative administrative business Assembly during the year 1970-1971 Hours Percentage Hours Percentage Second Session... 45 29 110 71

Third Pt ••• 52 32 113 68

Fourth 11 ••• 8 18 37 82 Fifth,.... 9 6 141 94 Total during 1970-71 114 22 401 78

The table belows bows the broad distribution of time taken by legislative, financial and non-financial business in both Houses of the Indian Parliament, during the year 1971-72.

The Indian Parliament: Distribution of Time" According to Functions

Hours Percentage Lok Sabha Rajya Sabha Lok Sabha Rajya Sabha Legislative ... 119 124 29.00 40.50 Financial ... 198 90 48.30 29.40 Non-financial ... 93 92 22.70 30.10

The table reveals that 71 per cent of the total time was spent by the Lok Sabha for non-legislative purposes and 29 per cent for legislative business. The non-financial business referred to in the table includes discussion regarding Proclamation of Emergency in the State of West Bengal, Gujarat, Mysore and Punjab, debates on the Annual Reports of the University Grants Commission for the year 1968-69 and 1969-70, the statement of the Ministers of External Affairs regarding the Treaty of Peace, Friendship and Co-operation between the Republic of India and the Union of Soviet Socialist

78. See, Report of the Department of Parliamentary Affairs, New Delhi, 1971-72, p. 9. 136 COCHIN UNIVERSITY LAW REVIEW

Republic, Eleventh Report of the Commission for Linguistic Minori- ties for the year 1968-69, Situation arising out of the cyclone in Orissa, Working of Nationalised Banks, Recognition of Bangla- desh, Flood and Drought situation in the country etc.

Sir Gilbert Campion, K. C. B., Clerk of the House of Commons, has made a table analysing the details of distribution of time according to function from 1906 to 1913 and from 1919 to 1938, which revealed that the House of Commons at the material time spent only about one-half of its time on the discussion of legislation."

Napoleon is reported to have said:" "No one can have greater respect for the independence of the legislative power than I : but legislation does not mean finance, criticism of the administration or ninety-nine out of the hundred things with which in England the Parliament occupies itself. The Legislature should legislate, i. e. construct grant laws on scientific principles of jurisprudence, but it must respect the independence of the Executive as it desires its own independence to be respected." The Legislature under Parliamentary system are essentially different from the Napole- onic conception of the Legislature.

It is submitted that the various factors endeavoured to point out in the preceding few paragraphs such as the inadequacy of the control of delgated legislation, the departmental preparation of bills, the executive encroachment upon private members' time, the growth of political parties in modern times and the development of strict patty discipline, the lobbying, the influence of Select Committee for legislation and the fact that the time spent for enacting laws is less when compared to the time utilised for financial and administrative business tend to establish the decline of legislative power. The main role of legislature today, it is submitted, is to question and debate the policies of the executive and to control and supervise the administration through several devices.

Control and Supevision of Administration The range and scope of responsibilities and functions of the executive have remarkably increased due to the pressures and pulls of the time. The Legislature is inherently incapable of giving prior

Sir Ivor Jennings, op. cit. Quoted in Sir Courtney Ilbert, op, cit., p. 208. MUHAMEDICUI°lY 137 sanction for the performance of numerous technical and complex activities of the present day executive. Even where it is possible it will not be conducive to the speedy and efficient functioning of the modern administrative State. In the changed context of vast executive powers and in view of the fact that the executive is provided with huge sums of public fund and that it serves, defends and regulates the affairs of the country in a big way, it has become incumbent on the democratic Legislature to supervise and control the administrative functions. How the control mechanism operates through manifold devices is presently illustrated.

The power of purse ultimately rests with the Legislature which provides sufficient guarantee for the effective legislative control. Tax- ation, supply, appropriation and expenditure have to be authorised by legislation, which gives ample opportunity for the Legislature to supervise and control the administrative activities. "The present system of control", says Ivor Jennings, "has been developed not by the mere accretion of formality to formality, but as the result of long experience of abuses.'"'

The Legislature is not however a suitable organ for going into the minute details of estimates and accounts. It has been felt necessary, therefore, to entrust these tasks with expert persons or bodies, retaining the ultimate control always with the Legislature. Accordingly, as per the principles laid down by the Constitution or rules of procedure or resolutions of the Legislature, financial control and supervision is exercised through the Comptroller and Auditor-General and Committees of the House such as Public Accounts Committee, Select Committee on Estimates and Committee on Public Undertakings.

The Comptroller and Auditor-General is isolated from politics and is 'very much a lone wolf' 82. The accounts are audited by him on behalf of the House, and the audit reports are sent by him direct to the House in England. In India, he reports to the head of the excu- tive who is under an obligation to cause them to be laid before the Legislature. His reports provide material for the Public Accounts Committee, without which it would have been difficult for the Com- mittee to gather cases of fraud, financial irregularities, misappropria-

Sir Ivor Jennings, op. cit., p. 324. Sir Frank Tribe, the Audisor4Genesal of England during 18514 described his office as such. 138 COCHIN UNIVERSITY LAW REVIEW

tions and excesses of expenditure over grants." In short, the Comp- troller and Auditor-General sees, like a referee, that the rules regard- ing financial dealings of the government departments are strictly observed and 'blows his whistle when the rules ate infringed'." The Public Accounts Committee ensures that the money is spent as the Legislature intended. It ensures the exercise of due economy and maintenance of high standards of public morality in all financial matters. It examines the accounts concerning the appropriation of sums granted by the Legislature for the expenditure of the various departments and scrutinises such other accounts laid before the House, as the Committee may deem fit. In scrutinising the accounts it is obligatory on the part of the committee to satisfy itself that the money shown in the accounts as having been disbursed were legally available for, and applied to, the service or purpose to which they have been applied or charged, that the expenditure conforms to the autho- rity which governs it, that every re-appropriation has been made in accordance with the provisions made in this behalf under rules framed by competent authority.

The working of the Public Accounts Committeee in India proved that it is a powerful force in the control of public expenditure. Its recommendations are respected and implemented by the executive. Its working on the whole conforms to the highest traditions and values of parliamentary democracy." During the year 1970-71 the Public Accounts Committee of the Kerala Legislature held 26 sittings, examined 82 witnesses and submitted five reports containing 136 re- commendations. In the year 1971-72 the said committee held 37 sit- tings, examined 178 witnesses and submitted four reports containing 161 recommendations."

The Estimates Committee provides a machinery for thorough scrutiny of the estimates submitted before the Legislature to secure possible economies in the execution of plans and programmes. This committee reports what economies, improvements in organisation, efficiency or administrative reform consistent with the policy under-

For a detailed account of the duties of the Comptroller and Auditor-General, see Asok Chand, Aspects of Audit Control, 1960. The author is a former Comptroller & Auditor•General of India. Sir Ivor Jennings, op. cit., p. 324. Asok Chanda, Indian Administration, 2nd Ed. London, p. 180. Administration Report, Kerala Legislature Secretariat, 70-71 and 1971.72. MUHA MEDKUTTY 13Q lying the estimates may be effected, suggests alternative policies in order to bring about efficiency and economy in the administration, examines whether the money is well laid out within the limits of the policy implied in the estimates and suggests the formin which the estimates shall be presented to the House. The committee parti- culary mentions the activities of the departments concerned in resp- ect of the following: whether most modern and economic methods have been employed; whether persons of requisite calibre on proper wages with necessary amenities and in right numbers have been put on the job; whether duplication, delays and defective contracts have been avoided; whether right consultation has preceded the execution of the job; and whether the production is worth the moneyspent on it. During the third Lok Sabha the Estimates Committee sat for 98 hours in 1962-63, 122 hours in 1963-64, 210 hours in 1964-65, 248 hours in 1965-66 and 165 hours in 1966'-67. The number of pages of materials studied by the committee during the respective years are 3723, 3948, 28144, 17964 and 22500." The Estimates Committee of the Kerala Legislature held 16 sittings during 1970-71 and exam- ined'as witnesses the Secretary to Government, Health Department, the Director of Health Services, the Director of Indigenous Medi- cines and the Principal, Medical College, Trivandrum. During the year 1971-72 the Committee held 33 sittings and examined as witnesses Agricultural Production Commissioner, Additional Secre- tary to Government (Forest Department) and the Chief Conservator of Forests."

The Committee on Public Undertaking. a comparativel y new endeavour, is a legislative device for exercising effective control over the administration of Public Undertakings. Huge sums are invested in these undertakings. In India over Rs. 3,000 crores is invested un- der this head. The functions of the committee are to examine the reports and accounts of certain specified Public Undertakings," and the reports, if any, of the Comptroller and Auditor-General thereon and to examine whether the affairs of the Public Undertakings are being managed in accordance with the sound business principles and

Lok Sabha Souvenir 62 .63, Part II, p. 72. See, Administration Report, Secretariat of Kerala Legislature, 1970-71 and 71-72. See, Section 45 of the Damodar Valley Corporation Act, 1949, Sec. :35 of the Industrial Finance Corporation Act, 1948, Sec. 37 of the Air Corporation Act, 1953, Sec. 29 of the Lifc Insurance Corporation Act, 1956, Sec. 36 of the Employees State Insurance Act, 1944 etc. 140 COCHIN UNIVERSITY LAW REVIEW prudent commercial practices. Now the Committee on Public Under- takings in the Indian Parliament excercises control over about 75 Public Undertakings." The Committee studies the relevant docu- ments pertaining to the undertakings in advance and examines witnes- ses. The witnesses are asked to answer questions about not keeping to schedule, not confining to forms prescribed, delays and lapses on the part of the administration, losses and wastefulness, favouritism shown in giving employments, contracts and such other wrongful acts or omissions. Discussion on Budget, Voting of Demands for Grants, the Appropriation Bill and the Finance Bill is an annual feature of the House leading to financial legislations. The debates that take place prior to these legislations are in pith, and substance debates on the financial and economic policies of the government. Similar is the case with regard to debates on Estimates, Supplementary Estimates and Consolidated Fund Bills. Besides control over finance, the administration is supervised by the Legislature through various other devices. The Committee on Government Assurances, an innovation of the Indian Parliament, scrutinises the assurances, promises or undertakings given by Mini- sters on the floor of the House, and reports to the House the extent to which such assurances, promises or undertakings have been com- plied with, and also examines whether such implementation has been taken place with the short time required for the purpose. The Consultative Committees are constituted in order to enable the Ministers to meet and discuss informally with the representatives of the House on matters of importance. For first hand observation and real appreciation of problems involved, Members of this Com- mittee, if necessary, are taken round installations and projects. The Committee on Subordinate Legislation exercises control over administration through the scrutiny of rules, regulations etc. The Committee on Petitions is constituted to hear citizens aggrieved by the administrative action; it serves as a useful link between the complainants and the government. Half-an-hour Discussion is a device by which full elucidation of facts is made possible, without any formal motion whatsoever before the House or without taking decision or vote at the end. The

90. D. N. Tiwary, 'Parliamentary Control and Influence exercised by tile Com- mittee on Public Undertaking', in L M. Singhvi [ed.] Parliament and Admirtistrcttion in Indict, New Delhi 1073, P. 103. MUHAMEDKUTTY 141

device is widely used to raise issues of public importance particular- ly because the question time is too short to pursue further an answer given in reply. As in the case of Half-an-hour Discussion, Discus- sion on Matters of Public Importance for Short Duration provides opportunity for legislative control. The device of Calling Attention Notice enables the members to get clarification at short notices. Adjournment motion is normally in the nature of censure motion and is applicable to serious faults of the administration. So the device of Calling Attention Notice is often resorted to. Adjourn- ment motion, though sparingly permitted, enables the Legislature to discuss definite matters of urgent public importance. The business of the House is adjourned for the purpose. Adjournment motion is a potent weapon in the hands of the members,, especially the opposition members, to criticise, rebuke or condemn the admini- stration. Any member of the House, including a Minister, can move Resulotion in the form of a declaration of opinion or a recom- mendation, or an approval or disapproval of an administrative act or policy or even a request of action. The Motion of non-confidence expresses want of confidence in the Council of Ministers responsible for the administration and serves as an important instrument of the legislative control. During the debate the members are free to call in question any policy or act of the administration. The debate is permitted to continue for a reasonable length of time so that the opposition view points may be stated. The Government is put to severe test at this time. Questions before the Legislature is a very valuable safeguard against the excesses or abuses of administration. The question time affords opportunity for the members to subject the executive to critical examination of both policy and action. The avowed object of question before the House is to elicit information, but its indirect achievement is much more important. It serves a variety of other purposes by exposing abuses, ventilating grievances, extracting promises, embarassing the administration. Apart from the general criticism of the administration and the Ministers responsible for the same, questions are widely used by members to draw the attention of the House to the grievances of individuals. Prof. Laski says that the process of questioning brings the work of the departments into the public view and make them realise that they are functioning under a close public scrutiny which will continuously test their efficiency as well as honesty. It would mitigate, though not wholly prevent, the development of unwholesome bureaucratic habit. The extensive use of the technique of asking questions is evident from 142 COCHIN UNIVERSITY LAW REVIEW the great number of questions asked. The Third Lok Sabha spent 3,732 hours on all items of business. Out of this, the time spent for questions comes to 564 hours or 15.1 per cent of the total time. It is seen that a total of 1,62,335 notices of questions were received during the sessions of the Third Lok Sabha. Thirty-five per cent of them, i.e. 58,440 were admitted." In the year 1971-1972 the Kerala Legislature received 15,214 notices of question as shown in the following table: Number of Questions Received, Admitted and Answered in the Kerala Legislative Assembly during 1971-1972'

Sessions of the No. of No. of No. of 4th Assembly held Questions Questions Questions0 in 1971-72 received admitted answered 2nd Session ••• 2689 1853 1173 3rd Session ... 5265 3011 1146 4th Session 1860 1091 669 - 5th Session 5400 2638 1061 Total ... 15,214 8,593 4,049

It is interesting to note in this context that the number of questions on the notice paper of the House of Commons in the year 1847 was only 129, whereas in the year 1960-61 the number of questions rose to 13,788." The privilege of asking questions confers on the Legislature the power to control the administration and this privilege is "an important feature of our parliamentary system"."

A brave new addition to the devices of legislative control over administration is the institution of Ombudsman as it is called in the Scandinavian countries or Parliamentary Commissioner as it is called in England and New Zealand. The Ombudsman is an inde- pendent and non-partisan officer of the Legislature to receive and investigate specific complaints from the public against administrative injustice and maladministration.

Lok Sabha Souvenir 1962.67, p. 72. Figures collected from Resume of Business Transacted during the fourth Kerala Legislative Assembly. Gorden, S., Our Parliament, 6th Ed. London, 1964, pp. 105.108. Anson, op. cit., r. 37. The subject has been elaborately dealt with in Chester D. N. and Browning, Questions in Parliament, Oxford, 1962. MUHAMEDKUITY 143 The necessity for creating the office of Ombudsman is widely felt in the democratic world, where Legislatures under parliamentary system flourish. Legislatures are not capable of exercising perpetual control and supervision over the administration since they are not sitting continuously. The short and occasional legislative sessions make continuous control over the executive impossible. Redressal of individual grievances by means of raising questions in the House or by direct representations has its own limitations since the remedy will be somewhat chancy, and there may be bias towards the mainten- ance of original order. The law courts cannot take any initiative on their own and conduct general investigations; they seldom interfere with administrative discretion. The scope of the limited judicial review is further restricted because of the difficulty in securing evid- ence and also because of the evidentiary privilege enjoyed by the government. Above all, judicial proceedings are dilatory, formal, expensive and superficial. In view of this unsatisfactory position and in view of the possibility of abuse of vast powers of administ- ration, the Legislature has a responsibility to find out a solution to save the public from the ill-effect of mal-administration. There is- therefore, universal interest in `ombudsmanship'. The Ombudsman or his equivalent can give quick relief to citizens aggrieved by admi- nistrative action. His powers over the executive are enormous and his suggestidns and recommendations are carefully implemented, partly because he is, like the Comptroller and Auditor-General, an impartial officer of the Legislature, enjoying its full confidence, and partly because no executive authority would like to be discussed on the floor of the House for its failures.

The prediction of Ronald C. Rowat that 'the Ombudsman in- stitution or its equivalent will become a standard part of the machi- nery of government throughout the democratic world"' as does not appear to be fantastic or wild. From Sweden and Finland it spread with necessary changes to Denmark, Norway, New Zealand, the United Kingdom, Canada, the United States, Guyana, Mauritius. Its adoption in many more jurisdictions in the United States and Canada and countries like India, Australia, Holland, Ireland, Ceylon etc. is seriously under consideration. Although the institution of Ombuds- man is not a solution for all bureaucratic maladies or executive arbi- trariness, it is certainly an essential safeguard against maladminist- ration.

95. Ronald C. Rowat [ed.], The Ombudsman: Citizen's Defender, 1968, p. 292. 144 COCHIN UNIVERSITY LAW REVIEW (

The control and supervision over the departments of government and the Public Undertaking has thus become an important' legislative business today. Besides ensuring the implementation of legislative policies, it enables the Legislature to hold the administration res- ponsible for its stewardship. The programmes and policies of the Legislature, however, glorious or revolutionary, becomes a dead letter, unless they are effectively administered.

Conclusion

The institution of Legislature, over centuries of its existence, has undergone changes in its functions and character. In England the authority of the Legislature to make law developed as a result of the conflict between the Executive and the Parliament during the sixteenth and seventeenth centuries. In the eighteenth and in the early nineteenth century the Legislature became the initiator of policy. The reason for the executive non-participation in the sphere of legislation at that time appears to be absence of any occasion for large scale reform. Legislation was confined to small alterations in the administrative law, and to special and local enactments. Laws were then made through the process of Private Bill Legislation. The royal civil service was minimised and the legislative control over grant of powers to various authorities and institutions was established through this process of legislation. With the decline of monarchical system in the nineteenth century, the responsibility of the Legislature increased. Wedded to reforms, the Legislature now realised that Private Bill Legislation was unsuitable to the voluminous legislative designs. The Public General Acts came into prominance at this stage. And legislation became a com- plex multistage process, permitting various forces and influences to enter into its composition. Thus we reached the stage where the departments of the executive government, the select committee for legislation, the political parties and the lobbies exert great influence in the process of legislation.

The inadequacy of the control of delegated legislation, the ever increasing legislative proposals from executive departments having wide administrative powers and experience, the encroachment on the time of private members by the executive, the growth of political parties and the development of party discipline commanding obedience from legislators, the vigorous and effective attempts of lobbies at various levels of legislative process for making or altering laws, the changes and modifications effected by select committees are MUHAMEDKUTTY 145 some of the major factors that led to the decline of legislative power and the growing status and prestige of the executive in the field of legislation. Now the initiation of legislation has shifted from the Legislature to the executive. Legislature, no doubt, still makes law, but its effective participation in law-making process has progressively deminished. The important process of legislation such as the inte- gration of interests as well as the legitimisation of policy now take place outside the Legislature. In the changed circumtances, the role of Legislature in law-making, it is submitted, is only formal. On the other hand, the main role of Legislature and one for which it is eminently suited functionally is supervision and control of admini- stration, by voicing the desires and aspirations of the citizens and by protecting their liberties from any encroachment or abuse by the executive and by protesting against local abuses and maladministrat- ion. The conrol mechanism operates through excellent devices.

The shifting of legislative power from the Legislature to the Executive need not belittle the image of the former, for, control( ng the administration, by itself, is an important function, provided the Legislature remains alert to the interests of the community. Mere translating the policies and programmes into legislation is not material enough by itself, unless they are carried out through the administrative process. The supervisory function enables the Legislature to watch the administration and see whether the plans and policies are effectively and economically carried out. By con- trolling the executive the Legislature guarantees justice, which is the s upreme political virtue, in the governance of the country. In invoking the power to control and supervise the executive, it is submitted, the Legislature should not dictate its judgement for that of the executive. Such a control would stifle the initiative of the Executive and demoralise the administration. Popular contro. through representative institutions is indeed a very delicate function. Since the administration wields extensive powers in the modern welfare State, any suggestion for improving legislative control has to be welcomed. The following suggestions are submitted in this regard. The time at the disposal of the Legislature is short and the volume of work to be performed is relatively large.. Therefore, the Legislature cannot be expected to bestow the necessary attention to all its varied duties. If the Legislature fails to fulfil its functions properly because of the shortage of time it is a pretty lamentable 146 COCHIN UNIVERSITY LAW REVIEW C37 situation, for, people's welfare and future of the nation largely depend upon its proper working. To remedy the problem of want of time, it is submitted that more sessions of the Legislature may be convened. It is further submitted that apart from Legislature now in existence, wnich may be called the Main-Legislature, two sub- legislatures may also be constituted by electing members simul- taneously with the election of members to the Main-Legislature. The candidates to the sub-legislature should have the support of political parties. Each sub-legislature should have sub-cabinet. One of the sub-legislatures may be entrusted with matters con- cerning agriculture and agricultural labour and the other with industry and industrial labour. The candidates for the sub-legisl- atures should possess certain prescribed knowledge or experience in their respective fields. Such sub-legislatures would be representative bodies with necessary expertise. However in order to avoid friction, the sub-legislatures must be subordinate to the Main- Legislature and any measure passed by the sub-legislature should be got ratified through voting by members before its enforcement as law of the land. The Main-Legislature should not ordinarily by- pass the decisions of the sub-legislatures.

The Committee on Subordinate Legislation entrusted with the scrutiny of delegated legislation has proved wholly unequal to the task of critical examination of such legislation. This is partly because the sheer bulk of administrative rules has reached gigantie proportions, and partly because there is dearth of expert personnel to cope with the work. It is said that the Committee on Statutory Instruments of Britain has been effective because of the uniformly high calibre of successive Counsel to the House of Commons-Lord Thring, Sir Courtney Ilbert, Sir Cecil Carr, Sir Gilbert Campion and others. It is submitted that a Commission may be appointed to go into the enire problem and suggest ways and means to improve the function of this Committee so as to enable it to fulfil its task effectively.

The Legislature should not be reduced into a mere voting machine or a registration chamber where only heads are counted, With this end in view, the legislators should be trained in the essen- tial features of administration, if they do not already possess the necessary equipment. Opportunity should be provided to all legisla- tors to participate in the process of administration by allocating them to as many Administrative Advisory Committees as there are depart- ments with the Ministers presiding over their respective Departmental MUHAMEDKUTTY 1 47 Advisory Committees. In doing so, the Ministerial responsibility to the Legislature should be kept intact. All matters relating to expenditure, estimates and other administrative problems concerning each department could be looked into by the respective Advisory Commtttee attached to each department. If the functioning of such Committees is found satisfactory a question may arise about the desirability of disbanding the present Public Accounts Committee and the Estimates Committee. This matter is important because certain institutions sometimes by old age and sometimes by circum- stantial turns get distorted in their functioning. There is a feeling in the administration that Public Accounts Committee and Estimates Committee have come to this stage. If a crusader becomes the Chairman or an active member, the Committee sometimes takes the image of a prosecutor vis-a-vis the administration; civil servants are summoned, files are called for, explanations are demanded in such a manner that sometimes the administrative section comes almost to a standstill. Since the Minister who is responsible to the Legislature is not in the Committee the over-all policy which could explain a particular expenditure or a particular estimate would not be forth- coming and the same matter is often ventilated and time utilised by the Legislature proper. if the above suggestion of the Departmental Advisory Committee under the Chairmanship of the Minister concerned could be successfully implemented the defects mentioned above could be avoided.