unit 4 (sovereignty. rights and duties)

unit 3 (parliamentary and presidential)

unit 2 ( unitary, federal, confederal, quasi )

separation of powers

Judiciary - functions, juducial review and independence of judiciary

Executive - Concept, types

Concept:

Among the three organs of the government. the executive is regarded as the most important one. The executive is the part of government that has sole authority and responsibility for the daily administration of the state. The executive branch executes the law. The division of power into separate branches of government is central to the idea of the separation of powers

In some countries, the term "government" connotes only the executive branch. However, this usage fails to differentiate between despotic and democratic forms of government. In authoritarian systems, such as a dictatorship or absolute monarchy, where the different powers of government are assumed by one person or small oligarchy, the executive branch ceases to exist since there is no other branch with which to share separate but equal governmental powers.The role of the executive is to enforce law as written by the legislature and interpreted by the judicial system.

Types:

Political and Permanent Executive : The emergence of welfare state has made the administrative functions of the State highly complex. The democratic set up has bestowed on the representatives of the people, the power to manage their affairs. Since the representatives without any administrative experience, spring to action from social life, know at best what people expect from them. When they come to power they take the help of the civil service, a body of professionals, trained, experienced and paid. This body of civil servants serve the political masters to formulate their policies and implement them. They have no party affiliations. They assist the political masters irrespective of their party ideology and do not hesitate to point out lapses in administration as and when they occur. These elected representatives who form the Government are known as political executive and the body of civil servants are known as permanent executive.

Nominal and Real Executive : It is needless to say that the Real Executive exercises the powers that belong to him. He is responsible for the exercise of these powers. May be he takes the assistance of subordinates but the decision is his. For example the President of U.S. A is an example of Real Executive who takes decisions for himself and exercises his own powers.The Nominal Executive is just the opposite. It is clearly discernible in a constitutional monarchy as prevalent in U.K. or Parliamentary Democracy as prevalent in India.In case of England the king is theoretically the master of all executive authority. But in practice his executive powers are exercise by the Council of Ministers. Similar is the position in India where the President enjoys the entire executive authority as per the constitution. But the Council of Minister exercises them and remains responsible for the exercise of powers.
The king in England or the President in India are the examples of Nominal Executive and the Prime Ministers under the British and Indian system of administration offer the example of Real Executives.

Singular and Plural Executive: Single Executive consists of a person who does not share power with others. The President of U.S.A is an example of a single executive. When the executive authority of the state is vested in more than one person having co-equal powers is known as plural executive. Switzerland provides the best example of such a type of executive. Here the executive powers of the state are vested in a collegiate body of seven persons at par in authority. This body takes all decisions jointly.

Parliamentary and Non-Parliamentary Executive: The Parliamentary executive is basically a responsible and a removable executive. The Parliamentary executive is responsible and answerable to the legislature for all its activities. The striking feature of this type of executive is close relationship between the executive and the legislature. The members of the political executive are the members of the legislature. U.K., India, Australia provide examples of this type. The executive in a non-parliamentary system is independent of the legislature and is not responsible to it. Such type of executive is found in U.S.A., France, and Sri Lanka etc.

Legislature - Concept, functions and types

Concept:

The state is a politically organised society and government is its machinery. A modern government has three branches - legislature, executive and judiciary. Among the three, according to Gilchrist "the legislative authority forms the major premises, the judiciary, the minor and the executive the conclusion". The legislature in every modern democratic state is elected by and is responsible to the people. It is an indispensable part of the democratic machinery.

The legislature is law-making branch. It expresses the will of the State and the laws that it makes serve as a vehicle to the sovereignty of the state. It provides a basis for the working of the executive and the judiciary. Unless laws are made the question of enforcing them or interpreting them does not arise. Hence, the legislature occupied the first place among the three organs of government.

Functions:

1. Legislative functions - Law making is the foremost function of a legislature as it is the direct source of legislation. Law is regarded as the expression or the will of the people. The laws reflect the changing conditions of society and the new social environment. The laws have to adjust themselves to the ever changing requirements of the society.The law making powers of the legislatures are absolute. They are limited by the provisions of the constitution.

2. Regulatory Functions - The executive is under responsible and answerable to the legislature for all its actions. The legislature exercises its control by a) asking questions to the ministers ; b) it, can move adjournment motions or raise debates; c) it can move no confidence motion. Though such a motion it can express its lack of confidence in the government, which if passed by the legislature forces the party in power to resign. These powers of the legislature regulate the working of the government to a large extent.

3. Financial Powers - The legislature has very important powers is the field of finance. It acts as the guardian of national purse. It regulates the income and expenditure of the government in respect of its various projects, administrative and welfare. People's money must be controlled and spent under the supervision and control of their representatives to prevent its misuse and wasteful expenditure. The theory no taxation without representation recognizes the supremacy of the legislature, which is the fund raising and fund granting authority. All proposals for financial legislation are routed through the popular chamber.

4. Deliberative Functions - This is a body which facilitates determination of policies and legislation through a process of debate and discussion. This discussion provides with opportunities to each member not only to present the view and perception of his party but also permits to mould his own views in light of the discussion. Through this power the legislative acts as a link between the public and the government.

5. Judicial Function - The legislature also exercises some judicial function. Certain countries have entrusted to their legislatures the function of trying high constitutional authorities. In India the President, the judges of Supreme Court, the members of U.P.S.C, the Comptroller and Auditor General can be impeached by the Parliament after fulfilling certain constitutional formalities. Very often the legislatures appoint commissions of inquiry relating to trade, commerce, agriculture, industry etc.

6. Constitutional Functions - The legislatures also have constitutional functions to perform. Most of the legislatures have been entrusted with the powers to amend the constitution. In India all amendment proposals can be initiated only in the legislature. So is the case with Britain and U.S.A. In all such cases the legislature exercises its constituent powers under a number of procedural restrictions.

7. Electoral Functions - Many of the legislatures participate in electoral functions. The Indian Parliament takes part in the election of the President and Vice-President of India. It also elects some its members to various committees of the House. It elects its presiding and deputy presiding officers.

Types :

A common controversy about the structure of legislature is whether it should be unicameral or bicameral. A bicameral system is one in which the legislature consists of two chambers or houses.

In a unicameral system, the legislature consists of a single chamber. In India, England, the U.S.A. and in most of the countries of the world, bicameralism has been adopted.

It was generally held that single chambers “were charcterised by instability, violence and passion and that their actions were unbalanced and impulsive.” It is consequently thought necessary to have bicameral system.

For Unicameralism:

A Single House:

1. Permits quick action.

2. Avoids obstruction of the will of the people.

3. Permits clear responsibility of the cabinet in a parlia­mentary system of government.

4. Reduces duplication and confusion of responsibility relating to law-making

5. Avoids dead-lock or conflict in legislation.

6. is less expensive.

For Bicameralism:

Two Houses:

1. Provide a check on hasty and ill-considered legislation.

2. Avoid dictatorial functions of a single chamber.

3. Help public opinion form by interposing delay

4. Reflect the popular will at all times and also allows representation to different classes.

5. Make useful revision of legislation.

6. Help to divide the work- load.

Constitution - features and classification

Meaning:

The term Constitution is derived from the Latin word "Constitute" meaning "to establish". Its the basic document of the state.

The term Constitution is defined by several writers in diff ways.  Aristotle defined Constitution as "the way of life which the state has chosen for itself".  Dicey says that those rules which effect the sovereignty of a State". Austin says that Constitution fixes the structure of supreme government.

The Constitution comprises the following distinctive features:

1. It is a body of rules, maybe written or unwritten;
2. Determines the powers of organisations of gov and privileges of the subjects;
3. Lays down certain rules of the organs of the gov, their powers and their mutual relationship;
4. It may be in a single or several documents, in detailed or short and brief form

In nutshell, a Constitution is the fundamental law of a state and it varies from country-to-country. A government of country is no longer run according to the whims and fancies of an individual but it is run accordance to the Constitution.

A good constitution must possess the following characteristics-

1. Definiteness
2. Comprehensiveness
3. Stability and flexibility
4. Suitability
5. Provision of rights and duties

The following are the salient features of the Constitution of India.

1. Longest written constitution
2. Partly Rigid and Partly Flexible
3. A Democratic Republic
4. Parliamentary System of Government
5. A Federation
6. Fundamental Rights
7. Directive Principles of State Policy
8. Fundamental Duties
9. Secular State.
10. An Independent Judiciary
11. Single Citizenship

Classification:

Constitution may be classified on several basis. The traditional classification of Constitution has been written or unwritten. Constitutions are sometimes classified according to the amendment, i.e., flexibility and rigid Constitution.

A more accepted classification is :

1. Granted Constitution -
   Its one which, without conveying sovereignty, is granted by a sovereign authority such as monarchs.
2. Enacted Constitution - 
   Its one that is drawn up by a deliberate body adopted by a direct or indirect vote of the people such as Constituent Assembly and by a regular legislative body.
3. Evolved Constitution - 
   Its one that is developed in stages over a long period of time like in the U.K. Here Statutes and Charters, besides customs and conventions pay an important role in a Evolved Constitution.

Gov and relation with state

Though some of the well known political thinkers like H.J. Laski and G.D.H.Cole treated the government as synonymous with state, they have the following differences :

State	Government
1. Consists of all the citizens. It is broader. 2. Permanent political institution. 3. Sovereignty an essential attribute. 4. Can’t be opposed by people due to no right. 5. An abstract institution can’t be seen. 6. Loyalty of the citizens to their state is compulsory.	1. A body of some citizens. It is narrower. 2. Not permanent. Subject to change due to elections and revolutions. 3. Does not possess sovereignty, acts in behalf of state. 4. If suffering from bad gov, people can oppose. 5. Concrete and definite, has physical existence and establishment. 6. In democracy people have the right to criticize for its acts of omission and commission.

STATE

STATE

Definitions:-

1) Woodrow Wilson - "state is people organised for law with definite territory".

2) D.I. Bluntschli - State is "the politically organised national person of a definite country".

3) Oppenheim - "The State exists when a people settle in a country under its own sovereignty".

4) Burgers - State is "particular portion of mankind viewed as an organised unit".

Elements:-

The State possesses 4 essential elements, namely - population, territory, government, and sovereignty.

1. Population
   Since the State is primarily a human institution,. it must have population. We cannot conceive of a State without human beings. There must be a no of families before a State can come into existence. 1 or 2 families or 2 or 300 people cannot make a state.
   Population is the quality upon which the strength of the sate depends. Aristotle feels "a good citizen makes a good state and bad citizen makes a bad state". Honest, hardworking and intelligent people are boon to the state.
   People are of diff types. They are citizens, aliens and minors; rich-poor, educated-uneducated; rulers-ruled, male-female, etc. Population was a definite asset for a state in earlier days when physical power was the main source of production process as well as defense of the country. It is accepted that the population should be in proportion to the resources available in the territory.
2. Territory
   Another imp physical feature of State. People must live permanently on a definite portion of land to make a state. Bluntschli says that "the state has its personal basis in land. The people do not become a state until they have acquired territory".
   The territory includes lakes and river, subsoil, airspace and mines. It includes not only the "land" but also sea up to prescribed limits, i.e., 12 miles, certain gulfs, bays, and streams. The area maybe big or small. It is not necessary that a state should have a compact territory. A state may have an unconnected territories. As Laski says " The territories of the state are the regions over which it can exercise sovereignty".
   State becomes powerful provided it has scientific and technological advancements. Therefore, it is territory but not the size of the territory which is the yardstick of statehood.
3. Government
   Another imp element of state. State cannot exist in the absence of government. It is set up to direct, regulate and control men's activities to enable them to live together harmoniously and constructively and lo solve their common problems more energetically and effectively. Its an agency created to enforce such rules of conduct and to ensure obedience.
   Garner says "without government the population would be an incoherent, organised, anarchic mass with no means of collective union".
   The Government is the sum total of legislature, executive, judiciary and internal bodies. The legislature makes the laws, the executive enforces the laws and judiciary interprets the laws. The three dept of gov cant be separated into three watertight compartments. Its an agency of the State that maintains law and order without which no progress is possible.
   There is no definite rule as to which should be the form of gov. It can be dictatorship or democracy, Parliamentary or Presidential but what matters is that there should be an organised agency called GOVERNMENT to provide peace and prosperity to the people.
4. Sovereignty
   Its the most Imp element of the state. Its the supremacy or the supreme power. Its a characteristic possessed by the state alone which makes it independent and supreme. Distinguishes the state from all other forms of human association. Who do not obey the laws are punished; this is Internal Sovereignty. External Sovereignty means that the state is free to make its foreign policy without any external pressure. Externally the country should be completely free from foreign control and dictation.