The lawmatics briefs
The Parliament of the Dominion of Canada in its present from was established by the British North America Act, 1867 (also known as the Constitution Act, 1867). Canada to this day remains a constitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the nominal head of state.
Prior to the 1867 Act, the large territories that now constitute Canada (with the exception of Quebec, which had the historical influence of French rule) were being administered as distinct territories. This act established a confederation among the constituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature comprising of the House of Commons and the Senate. The Senate was given two major functions in the constitution.
First, it was to be the chamber of “sober second thought”. Such a limit should prevent the elected House of Commons from turning Canada into a “mobocracy”, as the framers of Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the constitution, thus ‘preventing the Commons from committing any rash actions’. While the House of Commons was to be constituted through constituency based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces.
The number of senators from each state has consequently varied with changes in the confederation. However, the Canadian senators are appointed by the Governor-General in consultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and consequently also to the Federal executive to an extent. This system of appointment of senators was preferred over an electoral system owing to unfavourable experiences with elected ‘Second Chambers’ like the Legislative Councils in Ontario and Quebec, prior to the formation of the Confederation in 1867.
Another compelling factor behind the designing of a weak senate was the then example of the United States where some quarters saw the Civil war as a direct consequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owning to its method of composition.
Composition and Functioning
The Senate in the Canadian Parliament, is however not an elected body. As indicated earlier, the Senators are appointed by the Governor-General on the advice of the Prime Minister. The membership of the house as of today is 105 and it accords equivalent representation to designated regions and not necessarily the constituent provinces and territories. The Prime Minister’s decision regarding appointment of senators does not require the approval of anyone else and is not subject to review.
The qualifications for membership are an age requirement of 30 years, citizenship of the Dominion of Canada by natural birth or naturalization and residency within the province from where appointment is sought.
In the case of Quebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators hold office until the age of 75 unless they miss two consecutive sessions of Parliament. Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to party affiliations in appointments, the provision for holding terms till the age of 75 does theoretically allow for the possibility of the Opposition to command a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the Lower House are elected for 5 year terms.
Madhu limye v. SDM, Monghyr(1979)- Case Analysis
Bombay HC directs no payment of Stamp Duty on individual members agreements for redeveloped area
Delhi judicial Service v. State of Gujarat (1991)- A Complete analysis