MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

Constitutional law II

Semester V

Final Draft

Topic: Composition of Parliament in India and South Africa: A

Comparative Study

Submitted To: Prof. Milind Gawai

Submitted By: Sakshi Salunke

Enrolment No.: 2017043

 INDEX

1. Introduction
2. Historical Background
3. Structure of Indian Parliament
4. President of India
5. Rajya Sabha
6. Lok Sabha
7. South African Parliament
8. How the National Assembly works
9. National Council of Provinces
10.Composition of NCOP
11.Similarities and Dissimilarities between these two Parliaments
12.Bibliography
Introduction

In this research paper, we will discuss about the comparative study of composition of
parliament in India and South Africa. The state is the most universal and most powerful of all
social institutions. Human life would have become chaos without it, and it provided
environment for self- realization and self-development to the individual. Parliaments are the
indispensable institutions of representative democracies around the world. Whatever their
country-specific rules, their role remains the same: to represent the people and ensure that
public policy is informed by the citizens on whose lives they impact. Effective parliaments
shape policies and laws which respond to the needs of citizens and support sustainable and
equitable development. For parliaments to be truly representative, elections must be free and
fair. There have been multiple theories on its origin, nature and mechanism of Parliament.
Parliament plays a direct and active role in national affairs. It is the place where the members
of Parliament look after your interests. Members of Parliament (MPs) have many
responsibilities, including-

• Making laws that will improve our lives;

• Discussing and debating government policy and other political issues;
• Consulting with you, the people, and representing your views in Parliament;
• Helping people in their constituencies;
• Approving the budgets of government departments, as presented to Parliament by the
Minister of Finance;
• Making sure that the work that government promised to do is being done; and
• Checking that public money is being spent wisely.

The Parliament of India is a magnificent manifestation of the democratic ethos of our country.
As the national legislature and repository of the constituent powers of the Union, it occupies a
central position in our democratic polity. Parliament has evolved as an institution having
multidimensional roles. Nurturing and encouraging participatory democracy, our Parliament
has been instrumental in ushering in social change and development through progressive
legislations and meaningful discourses on crucial issues facing the nation, thus, paving the way
for good governance, which constitutes the basic principle of our constitution. The principle of
parliamentary form of Government is accountable to the legislature. Today, Parliament has
become a crucial part of our national life promoting diligently the cause of the people. Evolving
as the ‘fulcrum of our democracy’ it has responded effectively to the new challenges, complex
needs and emerging trends of the modern era. Though Article 79-122 deals with Chapter II
(Parliament) of Part V (Union), we shall break the topic into sub-sections. In this post, we are
covering only articles 79-88, which deals with the General provisions regarding the Parliament.
Parliament consists of the President of India, Lok Sabha and Rajya Sabha. Normally, three
Sessions of Parliament are held in a year:

(i) Budget Session (February-May); (ii) Monsoon Session (July-August); and (iii) Winter
Session (November-December).

HISTORICAL BACKGROUND

South Africa: The creation of the tricameral parliament was controversial on two fronts. On
the one hand, many white conservatives disliked the idea of non-whites participating in
Parliament at all. The dispute was a factor in the creation of the Conservative Party, a
breakaway from the dominant National Party. On the other hand, many coloureds and Asians
rejected the system as a sham, saying that the chambers reserved for them were powerless. The
tricameral parliament was not particularly strong. The 1983 constitution significantly
weakened the powers of parliament and abolished the position of Prime Minister. Most
authority was transferred to the State President, including the power to appoint the Cabinet.
This was seen by many as an attempt to limit the power of coloureds and Indians – not only
were the 'non-white' Houses of Parliament less powerful than the 'white' one, but parliament
itself was subordinate to a white President.

STRUCTURE OF INDIAN PARLIAMENT

Parliament consists of the President and the two Houses known as the Council of States i.e.
Rajya Sabha and the House of the people i.e. Lok Sabha respectively.

President of India: The President of India is elected by the members of an electoral college
comprising of the elected members of both Houses of Parliament and the elected members of
the Legislative Assemblies of the states and UTs for a term of 5 years commencing from the
date on which he enters upon his office. He is the head of the executive and also a constituent
part of Parliament. He performs a number of important executive as well as legislative
functions. The executive power of the Union is vested in the President which is exercised by
him either or through officers subordinate to him in accordance with the provisions of the
constitution. The Supreme command of the defence forces of the Union is also vested in the
President. Prime Minister is appointed by the President and the other ministers on the advice
of the Prime Minister. He also appoints important constitutional functionaries such as
Governors, Judges of the SC & HC, Attorney-General of India. Comptroller and
AuditorGeneral of India, Chairman and members of the Finance Commission and of the UPSC
and other Election Commissioners.

RAJYA SABHA-ARTICLE 80

The ‘Council of States’ which is also known as Rajya Sabha, a nomenclature that was
announced by the chair in the House on the 23rd August 1954 has its own distinctive features.
The origin of the second Chamber can be traced to the Montague-Chelmsford Report of 1918.
The Government of India Act, 1919 provided for the creation of a ‘Council of State’ as a second
chamber of the then legislature with a restricted franchise which actually came into existence
in 1921. The Governor-General was the ex-officio President of the then Council of State. The
Government of India Act, 1935, hardly made any changes in its composition. The Constituent
Assembly, which first met on 9 December 1946, also acted as the Central Legislature till 1950,
when it was converted as ‘Provisional Parliament’. During this period, the Central Legislature
which was known as Constituent Assembly (Legislative) and later Provisional Parliament was
unicameral till the first elections were held in 1952. Article 80 of the Constitution lays down
the maximum strength of Rajya Sabha as 250, out of which 12 members are nominated by the
President and 238 are representatives of the States and of the two Union Territories. The
present strength of Rajya Sabha, however, is 245, out of which 233 are representatives of the
States and Union territories of Delhi and Puducherry and 12 are nominated by the President.
The members nominated by the President are persons having special knowledge or practical
experience in respect of such matters as literature, science, art and social service.1

Allocation of Seats

The Fourth Schedule to the Constitution provides for allocation of seats to the States and Union
Territories in Rajya Sabha. The allocation of seats is made on the basis of the population of
each State. Consequent on the reorganization of States and formation of new States, the number
of elected seats in the Rajya Sabha allotted to States and Union Territories has changed from
time to time since 1952.

1
Admin. “The Rajya Sabha.” BYJUS. Byju's, November 26, 2018. https://byjus.com/free-ias-prep/the-
rajyasabha/.
LOK SABHA- ARTICLE 81

Lok Sabha is composed of representatives of the people chosen by direct election on the basis
of the adult suffrage. The maximum strength of the House envisaged by the Constitution is
552, which is made up by election of up to 530 members to represent the States, up to 20
members to represent the Union Territories and not more than two members of the AngloIndian
Community to be nominated by the Hon'ble President, if, in his/her opinion, that community
is not adequately represented in the House. The total elective membership is distributed among
the States in such a way that the ratio between the number of seats allotted to each State and
the population of the State is, so far as practicable, the same for all States.2

Law-Making Functions

The parliament’s main function, as the absolute legislative authority, is to build fair and strong
laws relating to all main union matters or matters enumerated in the union list. The members
of either house bring proposals for new bills and laws before the parliament. The members of
the parliament then deliberate and debate on the proposal. The parliament of India passes the
bill or law when both houses agree, and the president gives his/her consent. Now the parliament
can also make laws for a state or take decisions on matters listed in the State list if the state is
under the President’s Rule or in a state of emergency.

Monitoring the Cabinet

As mentioned earlier, the parliament of India consists of both the representatives of the people
and the council of states. And these members form the cabinet, which is the guiding force that
powers the government. All these representatives or cabinet members have important ministries
such as finance, defence, and home under their control. And hence, one of the most important
functions of the parliament is to ensure that it governs, controls, and assesses the

2
“Parliament of India Lok Sabha House of the People.” Parliament of India, Lok Sabha, n.d.
https://loksabha.nic.in/.
1.“National Portal of India.” National Portal of India, n.d. https://www.india.gov.in/my-
government/indianparliament.

https://connectusfund.org/13-big-pros-and-cons-of-bicameral-legislature
performance of these various cabinet ministers. And it is here that the opposition plays an
important role. As when members bring important matters for discussion, it is the duty of the
opposition to bring forth alternative suggestions or ideas to ensure a healthy debate.3

Constitutional Amendments

The parliament of India has the power to amend the constitution. To pass a constitutional
amendment, both houses need to approve the amendment with a majority or total membership.
In some cases, the amendments may need the approval of half of the legislative assemblies of
the states.

Judicial Functions

Another very important duty of the parliament is to monitor the judiciary system. The judiciary
body is presided over by the President. And if the need arises, the parliament has exclusive
rights to impeach the President and remove the judges of the Supreme Court and the High
courts. The parliament also needs to ensure that no member defames or insults the parliament
house.2

Financial Functions

The parliament needs to enact the budget and decide on ways and means to earn revenue for
the public sector. Now the main source of revenue is taxes. And the parliament needs to ensure
that this revenue, when sanctioned for expenditure, is earmarked and spent on valid and
authorized purposes. To this effect, the parliament has two standing committees to ensure that
the cabinet uses the money judiciously Public Accounts Committee and the Estimates
Committee.5

Electoral Functions

All parliament members are responsible for electing the President and Vice-President of India.
They are also responsible for electing the speaker, the deputy speaker, and the deputy chairman

2
“Parliament: Composition, Powers and Functions: India.” Political Science Notes, July 21, 2016.
http://www.politicalsciencenotes.com/parliament/parliament-composition-powers-and-functions-india/972.
SOUTH AFRICAN PARLIAMENT

The salient features of the South African Parliament and its functioning as revealed during the
interaction with South African Parliament are as under: Like our Constitution, the Constitution
of the Republic of South Africa contains an important democratic principle called the
separation of powers which means that the power of the state is divided between three different
but interdependent components or arms, namely the executive (Cabinet), the
legislature(Parliament) and the judiciary(Courts of Law).

The Executive

The President is the head of State and of the national executive. Executive authority together
with other members of the cabinet is exercised by him, namely, the Deputy President and
Ministers. The executive develops policy, for example by preparing and initiating legislation
which it submits to Parliament for approval. That policy is then implemented by it by running
the administration of the country by means of the different government departments. The
executive is accountable for its actions and policies to Parliament.3

The Legislature (Parliament)

The national legislature or Parliament consists of two Houses, the National Assembly and
National Council of Provinces, whose members are elected by the people of South Africa. Each
House has its own distinct functions and powers, as set out in the constitution. The National
Assembly is responsible for choosing the President, passing laws, ensuring that the members
of the executive perform their work appropriately and provide a platform where the
representatives of the people can publicly debate issues. The National Council of Provinces is
also engaged in the law-making process and provides a forum for debates on issues affecting
the provinces. Its major focus is to ensure the provincial interests of Government are considered
in the national domain.

HOW PARLIAMENT OF SOUTH AFRICA IS STRUCTURED?

South Africa has a bicameral Parliament (two houses) supported by a joint administration. The
National Assembly is the House directly elected by the voters, while the National Council of

3
“South Africa's Sixth Parliament: National Assembly Members Sworn In.” The South African, May 22, 2019.
https://www.thesouthafrican.com/news/sixth-parliament-national-assembly-updates-22-may-2019/.
Provinces is elected by the provinces and represents them to ensure that provincial interests are
considered in the national sphere of government.

NATIONAL ASSEMBLY

The National Assembly has 400 members. The number of seats that a party has in the Assembly
is in proportion to the number of voters that voted for it in the elections.

OFFICE BEARERS OF THE ASSEMBLY

At its first sitting after a general election, the National Assembly elects the speaker, the
principal office bearer of the Assembly. The Speaker has many responsibilities which include
constitutional, statutory (in terms of the law), procedural and administrative powers and
functions. The duties of the speaker fall broadly into three categories, namely-

1. Presiding over sittings of the House, maintaining order and applying its rules;

2. acting as representative and spokesperson for the Assembly and (with the Chairperson of the
Council) for Parliament; and

3. acting as chief executive officer for Parliament, in conjunction with the Chairperson of the
Council.

Though the speaker is a member of a political party, he/she is required to act impartially and
protect the rights of all parties. In performing his or her functions, the Speaker is assisted by
the Deputy Speaker and three House Chairpersons, each with specific areas of responsibility
determined by the Speaker. To ensure the proper functioning of the House, the presiding
officers are assisted by the whips. Whips are party-political functionaries. A whip is a member
selected by his or her party to assist in organising party business, keeping members informed
of party and parliamentary business, ensuring that members attend committee meetings and
debates in the House, arranging for their members to speak in debates, and to perform many
other duties. The Chief Whip of the Majority Party, by virtue of his or her party being the
majority party, also has certain duties in relation to proceedings of the House. Recognition is
also given to the chief whip of the largest minority party. He or she is called the Chief Whip of
the Opposition. As the leader of the largest minority party (or largest party that is not in
government), the Leader of the Opposition enjoys a special status in Parliament. The specified
in the Constitution and the rules and is accorded a specific salary, though he or she has no
specific duties in terms of the rules.

RELATIONS WITH THE EXECUTIVE

There are three office bearers who facilitate liaison between Parliament and the executive. The
Leader of Government Business is appointed from the Cabinet by the President to take care of
the affairs of the executive in Parliament. That includes the programming of business initiated
by the executive and arranging the attendance of Cabinet Ministers in respect of parliamentary
business. The Speaker may also select two members of the Assembly to act as Parliamentary
Counsellors, one to the President and the other to the Deputy President. These members are
responsible for facilitating communication between the Assembly and the offices of the
President and the Deputy President.

HOW THE NATIONAL ASSEMBLY WORKS

Some of the tasks of the Assembly, particularly those involving detailed consideration of
matters, are more appropriately performed by a smaller group than the Assembly sitting in
plenary, i.e. as the full House. Much of the Assembly’s work is therefore done in committees,
but the final decisions on all matters are taken by the House. The House always has the final
authority.

Committee: In accordance to the powers given to it by the constitution, a range of committees

is assigned by the Assembly with the powers and functions. On a regular basis, the activities
of the committees are required to be reported to make recommendations to the House for
discussions. 4

Members' statements

In addition to dealing with government business, usually bills initiated by the executive,
individual members (sometimes called “private members”) have several ways of bringing

4
7.“National Legislature (Parliament).” National legislature (Parliament) | South African Government, n.d.
https://www.gov.za/about-government/government-system/national-legislature-parliament.
matters to the attention of the House. A member may give notice that he or she intends moving
a motion in the House. A motion is a way of asking the House to take a decision on or to debate

a particular matter. The rules also make provision for members’ statements on certain days.
During members’ statements, 15 members get an opportunity to make a statement for a minute
and a half on a topic of their choice. At least six Ministers are then afforded two minutes each
to respond to any of the statements. The opportunity for members’ statements was created
mainly to give members a chance to raise constituency issues in the House. Furthermore, if
there is a burning issue of grave importance that a member wants the House to discuss as soon
as possible, he or she may request the Speaker to agree to accommodate a debate on a matter
of public importance.

Statements by Cabinet Members

A Cabinet member may make a factual or policy statement relating to government policy, any
executive action or similar matter of which the Assembly should be informed. The Minister
in question asks the Speaker for an opportunity to make such a statement. Each political party
is allowed an opportunity to respond to such a statement.

Private Members’ Legislative Proposals

Members may also submit legislative proposals for consideration by the House. The member
submits the proposal for new legislation or amending legislation to the Speaker. It is then tabled
and referred to the Committee on Members’ Legislative Proposals and Special Petitions. That
committee will look at the proposal and advise the House on whether it is a good idea to proceed
with such legislation. If the House agrees, the member submits a draft bill and it is referred to
the relevant portfolio committee for processing.

National Council of Provinces

The National Council of Provinces (NCOP) is one of the two Houses of Parliament. The NCOP
is constitutionally mandated to ensure that provincial interests are considered in the national
sphere of government. This is done through participation in the national legislative process and
by providing a national forum for consideration of issues affecting provinces. The NCOP also
plays a unique role in the promotion of the principles of Cooperative Government and
Intergovernmental Relations. It ensures that the three spheres of government work together in
performing their unique functions in terms of the Constitution and that in doing so, they do not
encroach in each other’s area of competence. This ensures that synergy exists between the
spheres on matters of concurrent competence. The Second Chamber of South African
Parliament, the National Council of Provinces (NCOP) is described as a unique South African
institution” that replaced the Senate of the Apartheid regime on 6th February 1997. South Africa
needed a chamber or not is the question and if so, what should be its powers was a matter of
intense discussion on various fora. Finally, a decision was taken to have a powerful and
efficacious federal chamber and a dominant view was that the second chamber should play
major role at the national and provincial levels and that it should be working not merely as a
revisory or debating body but should reflect the diverse nature of the country and that its
primary function should be to protect and promote the provincial interests. Ultimately, the
second chamber of NCOP was established in 1997, with powers and functions, more or less,
like Germany’s Second Chamber i.e. Bundestag. South Africa adopted federal system in which
provinces would have some original powers, which promoted co-operation rather than
competition between national and provincial governments.

COMPOSITION OF THE NCOP

The NCOP consists of 90 provincial delegates, viz. 10 delegates for each of the nine provinces.
This means that each province is equally represented in the NCOP. A provincial delegation
consists of six permanent delegates and four special delegates. The permanent delegates are
appointed by the nine provincial legislatures. The four special delegates consist of the Premier
of the province and three other special delegates assigned from members of the provincial
legislature. They are selected by each province from Members of the Provincial Legislature
(MPLs) and are rotated depending on the subject matter being considered by the NCOP. The
Premier of a province is the head of the province’s delegation but he or she can select any other
delegate to lead the delegation in his or her absence. Each provincial delegation has a provincial
whip who is responsible for co-ordination of the work of the provincial delegations in the
NCOP. The Chief Whip of the NCOP co-ordinates the business of the House and oversees the
duties of the provincial whips. Organised local government is also represented in the NCOP
through the South African Local Government Association (SALGA). SALGA is entitled to 10
representatives who may participate in the debates and other activities of the NCOP but may
not vote. There are total 54 state parties in the NCOP.5

SIMILARITIES AND DISSIMILARITIES BETWEEN THE INDIAN AND SOUTH

AFRICAN PARLIAMENT

South African Parliament was Tricameral in nature whereas Indian Parliament is Bicameral
since the beginning. In my opinion, India should adopt the policy/idea of maximum
representation of women in the parliament from South African Parliament. The similarities
between these two Parliaments is that they have a common Bicameral legislature but differ in
its functioning.

 Bicameral legislature provides a system of checks and balances for the government.
 It offers representation at the individual level.
 It creates a better system of legislation.
 It limits the abuse of power.
 It creates a national identity.
 It encourages incumbents to continue running for elected positions.

Therefore, in my opinion, Bicameralism is little ineffective and should allow people to work
together which will help to form a national identity.

BIBLIOGRAPHY

BOOKS REFERRED

5
5.“Parliament of the Republic of South Africa - Parliament of South Africa.” Parliament of the Republic of South
Africa - Parliament of South Africa, n.d. https://www.parliament.gov.za/.
 • The Constitution of India
WEBSITES

1. Leander. “Parliament of the Republic of South Africa.” South African History Online,
May 22, 2015. https://www.sahistory.org.za/article/parliament-republic-south-africa.
2. “Parliament.” Encyclopædia Britannica. Encyclopædia Britannica, inc., n.d.
https://www.britannica.com/topic/parliament-government.
3. “Structure of Indian Parliament: Composition of Lok Sabha.” Toppr, May 22, 2019.
https://www.toppr.com/guides/legal-aptitude/indian-constitution/indian-
parliamentstructure-of-indian-parliament/.
4. “Parliament of India Lok Sabha House of the People.” Parliament of India, Lok Sabha,
n.d. https://loksabha.nic.in/.

5. “Parliament of the Republic of South Africa - Parliament of South Africa.” Parliament

of the Republic of South Africa - Parliament of South Africa, n.d.
https://www.parliament.gov.za/.
6. “Parliament: Composition, Powers and Functions: India.” Political Science Notes, July
21, 2016. http://www.politicalsciencenotes.com/parliament/parliament-
compositionpowers-and-functions-india/972.
7. “National Legislature (Parliament).” National legislature (Parliament) | South African
Government, n.d. https://www.gov.za/about-government/government-
system/nationallegislature-parliament.
8. Morton, Chester. “The Advantages of a Bicameral Legislature.” Virtual Kollage,
November 23, 2016. https://www.virtualkollage.com/2016/11/advantages-
ofbicameral-legislature.html.
9. Union, Inter-Parliamentary. IPU PARLINE database: SOUTH AFRICA (National
Assembly), Full text, n.d. http://archive.ipu.org/parline-e/reports/2291.htm.
10. “National Portal of India.” National Portal of India, n.d.
https://www.india.gov.in/mygovernment/indian-parliament.