Chapter III of Part VI of the Constitution is concerned with the State Legislature.
Bicameral and Unicameral States
Though a uniform pattern of Government is prescribed for the States, it is not so in the matter of the composition of the Legislature. While the Legislature of every State shall consist of the Governor and the State Legislature, in some of the States, the Legislature shall consist of two Houses, namely, the Legislative Assembly and the Legislative Council, while in the rest, there shall be only one House, namely the legislative assembly. The constitution provides for the abolition of the second chamber in a State where it exists as well as for the creation of such a chamber in a State where there is none at present. If a state Legislature passes a resolution by an absolute majority, together with not less than two-thirds of the members actually present and voting in favour of the creation of the second chamber and if Parliament gives concurrence to such a resolution, the concerned State can have two Houses in the Legislature. Similar is the procedure for the abolition of the Upper houses and the State of Punjab and West Bengal abolished the second chambers in 1969 and 1970 respectively. Recently the Legislative Councils in Andhra Pradesh and Tamil Nadu were abolished in 1985 and 1986 respectively. The State Legislature which has only one House is known as the Legislative Assembly (Vidhan Sabha) and in the State which has two houses, the Upper House is known as the Legislative Council (Vidhan Parishad) and the lower House is known as the Legislative Assembly (Vidhan Sabha). Owing to changes introduced since the inauguration of Constitution, in accordance with the procedure laid down in Art. 169, the States having two Houses are Bihar, Madhya Pradesh, Maharashtra, Karnaktaka, and Uttar Pradesh. To these must be added Jammu and Kashmir, which has adopted a bicameral Legislature by her own State Constitution.
COMPOSITION OF THE HOUSES LEGISLATIVE ASSEMBLY
The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a State. The maximum strength of an assembly must not exceed 500 or its minimum strength fall below 60. But some of the States have been allowed to have smaller Legislative Assemblies, e.g. Sikkim, Arunachal Pradesh, Goa, etc.
It will be a partly nominated and partly elected body, the election being an indirect one and in accordance with the principle of proportional representation by the single transferable vote. The members being drawn from various sources, the Council shall have a variegated composition. Broadly speaking 5/6 of the total number of members of the Council shall be indirectly elected and 1/6 will be nominated by The duration of the Legislative Assembly is five years. The Governor has the power to dissolve the Assembly even before the expiry of its term. The period of five years, may, while a proclamation of emergency is in operation, be extended by the Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after proclamation has ceased to operate (Article 172(1)). Unlike the Legislative Assembly, the Legislative Council is not subject to dissolution. It is a permanent body, unless abolished by the Legislative Assembly and Parliament by due procedure. But no person can be a permanent member of the Council as one-third of the members of the Council retire on the expiry of every second year. It amounts to a term of six years for each member. There is no bar on a member getting re-elected on the expiry of his term.
(a) one-third of the total number of members of the Council would be elected by electorates consisting of members of local bodies like the municipalities and the district boards.
(b) one-twelfth of the members would be elected by electorates comprising of graduates of a standing of three years dwelling in that particular state.
(c) one-twelfth of the members would be elected by electorates consisting of teachers who have been in the teaching profession for at least 3 years in educational institutes in that state, which are not lower than secondary schools in standard.
(d) one-third would be elected by members of the Legislative Assembly from amongst people who are not Assembly members.
(e) The rest would be nominated by the Governor from persons having knowledge or practical experience in matters like science, literature, cooperative movement, art and social service. (The Courts can’t question the propriety or bonafides of the Governor’s nomination.)
QUALIFICATIONS AND DISQUALIFICATIONS FOR MEMBERSHIP OF THE STATE LEGISLATURE
A person shall not be qualified to be selected to occupy a seat in the Legislature of a State unless he/she
(a) is an Indian citizen;
(b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative Council; and
(c) possess such other qualifications as may be prescribed by the Parliament.
Thus, the Representation of the People Act, 1951, has provided that a person shall not be elected either to the Legislative Assembly or the Council, unless he is himself an elector for any Legislative Assembly constituency in that State. A person can be disqualified for being selected as and for being a member of the Legislative Assembly or Legislative Council of a State if he/she
(a) holds an office of profit under GOI or any State Government, other than that of a Minister at the centre or any state or an office declared by a law of the State not to disqualify its holder (many States have passed such laws declaring certain offices to be offices the holding of which does not disqualify its holder for being a member of the Legislature of that States);
(b) is mentally unsound as declared by a competent Court;
(c) is undischarged insolvent;
(d) is not an Indian citizen or has voluntarily got the citizenship of a foreign State or is under any acknowledgment of adherence/allegiance to a foreign nation;
(e) is so disqualified by or under any law made by Parliament;
Thus, the Representation of the People Act, 1951, has laid down some grounds of disqualification, like conviction by a Court, having been found guilty of electoral malpractice, being a manager or director of a corporation in which Government possesses a financial interest. Article 192 says that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned above, the matter will be referred to the Governor of the state who has to act in accordance with the opinion of the Election Commission. His decision is final and not liable to be questioned in Court.
OFFICERS OF THE LEGISLATURE
The Assembly chooses two of its members as the Speaker and the Deputy Speaker. A Speaker vacates his office if he ceases to be a member of the Assembly. He may also resign his office at any time. A speaker may be removed from office by a resolution of the Assembly passed by a majority of all the then members of the Assembly after fourteen days’ notice of the intention to move such a resolution. But he does not vacate his office on the dissolution of the Assembly. He continues to be the Speaker until immediately before the first sitting of the Assembly after the dissolution. While the office of the Speaker is vacant, the Deputy Speaker performs his duties. The duties and powers of the Speaker are, broadly speaking the same as those of the Speaker of the House of the People (Lok Sabha). The Speaker and Deputy Speaker are expected to be above party politics to maintain dignity, independence and impartiality of the office they hold. The Speaker is the guardian of the rights and liberties of the House. He is responsible for the orderly transaction of business in the House. Any indiscipline and disorder in the House has to be checked by the Speaker. It is his duty to see that points of view of the minority are given due recognition and respect in the House. The Council chooses from amongst its members a Chairman and a Deputy Chairman. Both vacate their offices if they cease to be members of the Council or resign from its membership. They can also be removed by a resolution of the Council passed by a majority of all the then members of the Council, provided fourteen days notice to move such resolution of removal has been given. When the resolution for removal is under discussion against the Chairman or the Deputy Chairman, the concerned person shall not preside at the sitting of the Council, although he may be present at such a sitting and has the right to speak in, and otherwise to take part in the proceedings of the Council. He shall be entitled to vote only in the first instance on such resolution or on any other matter during such proceedings. In case of equality of votes he does not exercise a casting vote to which he is otherwise entitled under Article 189. The Chairman presides at all sittings of the Council and in his absence the Deputy Chairman. During the absence of both the Chairman and the Deputy Chairman, such other person as may be determined by the rules of procedure of the Council shall preside; or, if no such person is present, such other person as may be determined by the Council shall act as Chairman. While the office of the Chairman is vacant, the duties of his office are performed by the Deputy Chairman. If the office of the Deputy Chairman is also vacant, such member of the Council as the Governor may appoint shall perform all such duties connected with the office of the Chairman.
POWERS AND FUNCTIONS OF THE STATE LEGISLATURE
The functions of the states’ Legislative Council are only advisory in nature. If any Bill is passed by the Legislative Assembly and sent to the Council, and the Council refuses to give its approval, then the Assembly has the right to reconsider it. The assembly may pass it with or without the amendments proposed by the Council, and again send it to the Council. When a Bill approved by the Assembly is sent to the Council for the first time, it may retain it for three months, but in the case when it is sent for the second time and is kept in the Council for one month only, the bill is deemed as having been passed. This evidently demonstrates the Assembly’s absolute superiority over the LC. In the case of Money Bills, the State Assembly’s powers are the same as those of the Lok Sabha. It is evident that the position of the Vidhan Parishad is haplessly weak. Even in theory, it cannot be compared to the Rajya Sabha that, in spite of being the upper chamber of the Union Legislature, has some effective powers.
(1) All the LC can do is delay the passing of a money bill by 14 days, a non-money bill by 3 months or a non-money bill that is sent back to it with recommendations by 1 month.
(2) There is no provision in the Constitution for a joint sitting of the State Legislature. It is to be noted that while the Vidhan Sabha can override the Vidhan Parishad, the vice versa is never possible. A non-money bill that is passed by the Vidhan Parishad can be rejected by the Vidhan Sabha more than once.
(3) The LC members do not participate in the election of the President of the country. Apart from that, they do not have any meaningful role in any bill’s rectification nor in a constitutional amendment.
In practical terms, the Legislature of a State implies its Legislative Assembly which possesses the following major powers and functions:
(1) It can create laws on any subject in the State List; it can also create laws on the Concurrent List provided the law does not contradict or conflict any law already made by the Parliament.
(2) The Assembly asserts control over the Council of Ministers. Assembly members can question the ministers, move motions and resolutions, and also pass a vote of censure in order to dismiss the state government. The government ministry is collectively accountable to the Legislative Assembly. If the ministry is defeated in the Assembly, it amounts to the passing of a no-confidence vote against the government.
(3) The assembly controls the State’s finances. A money Bill can emerge from the Assembly and it is considered passed by the LC after a lapse of fourteen days after reference made to it by the Sabha. It could reject or pass the grants or reduce their amount indicating rejection or adoption of the budget and hence, implying victory or defeat of the State Government. Therefore, no tax can be levied or withdrawn without the consent of the Vidhan Sabha.
(4) The Assembly has constituent powers. With reference to Article 368, certain Bills of Constitutional amendment after being passed by the Parliament would be referred to the States for the process of ratification. In these cases, the Vidhan Sabha has a role to play. It should give its judgement by passing a resolution by a simple majority indicating approval or disapproval of the said Bill. There is a provision wherein the President shall refer to the state assembly of a state before he recommends the introduction of a bill which concerns with the alteration of the concerned state’s boundary lines or its reorganisation in such a manner that its territory is increased or decreased.
(5) Some other powers of the State Assembly are as under:
(a) It elects its Speaker as well as Deputy Speaker. It can also remove them by a no-confidence vote.
(b) It participates in the election of India’s President.
(c) It also considers reports presented by agencies such as the Auditor-General, State Public Service Commission, and others.
Hence, it is evident that the Vidhan Sabha is the powerful and popular chamber of the State Legislature. In theory, it is somewhat parallel to the Lok Sabha.
The Parliamentary procedure followed in the Assembly and the Council is the same as in Parliament. The State Legislature must meet at least twice a year and the interval between any two sessions should not be more than six months. The Governor delivers the opening address at the beginning of a new session in which he outlines the policy of the State Government. This is followed by a debate in the Assembly, and a resolution expressing thanks to the Governor is finally voted upon. The opposition parties find their best opportunity of criticizing the policies and programmes of the Government during the discussion on the Governor’s Address. Any Bill may be introduced in either House of the Legislature except a Money Bill, which can be introduced only in the Assembly. It has to go through three readings, after which it goes to the Governor for his assent. The Governor may send it back for reconsideration but once it is passed again by the Legislature, he cannot withhold his assent. He may reserve certain Bills for the consideration of the President, who may ask him to place it before the Legislature for reconsideration. When it is passed again with or without amendment it goes to the President for his consideration. The President is not bound to give his assent even though the Bill has been considered and passed for a second time by the State Legislature. In case the Assembly is dissolved before a Bill is passed, or it is passed by the Assembly but is pending before the Council, it will lapse. But in case of Bills which have been duly passed by the Assembly, if there is only one House in the State, and by the Assembly and the Council where there are two House, and is awaiting the assent of the Governor or the President it does not lapse. A bill which has been returned either by the Governor or the President for reconsideration can be considered and passed by the newly constituted Assembly, even though the Bill was originally passed by the dissolved House.
GOVERNOR’S ORDINANCE MAKING POWER
The Governor’s power to make ordinances (Art. 213), having the force e of an Act of the State Legislature, is similar to the Ordinance-making power of the President in the following respect:
(a) The Governor shall have this power only when the Legislature, or both Houses thereof, are not in session
(b) It is not a discretionary power, but must be exercised with the aid and advice of ministers.
(c) The Ordinance must be laid before the State Legislature when it reassembles, and shall automatically cease to have effect at the expiration of 6 weeks from the date of re-assembly, unless disapproved earlier by that Legislature
(d) the Governor himself shall be competent to withdraw the Ordinance at any time
(e) the scope of the ordinance-making power of the Governor is co-extensive with the Legislative powers of the State Legislature, and shall be confined to the subjects in lists II and III of Sch. VII.
(f) The Governor’s satisfaction as to the need for making an ordinance cannot be questioned in any Court on any ground. But as regards repugnancy with a Union law relating to a concurrent subject the Governor’s Ordinance will prevail notwithstanding repugnancy, if the ordinance had been made in pursuance of ‘instructions’ of the President.
The peculiarity of the ordinance making power of the Governor is that he cannot make ordinances without ‘instructions’ from the President if
(a) a Bill containing the same provisions would under the Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. (Art. 213).
(i) Certain types of Bills cannot be moved in the State Legislature without the previous sanction of the President of India; (ii) Certain Bills passed by the State Legislature cannot become operative until they receive the President’s assent after having been reserved for his consideration by the Governor; (iii) The Constitution empowers Parliament to frame laws on subjects included in the State List if the Council of States declares that it is necessary and expedient in the national interest that Parliament should Legislate on these subjects; (iv) Parliament can exercise the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, while a Proclamation of emergency is in operation; (v) The Legislative competence of Parliament can also extend to the subjects enumerated in the State List during the operation of a proclamation of breakdown of the Constitutional machinery.
The powers, privileges and immunities of the State Legislature and their members are the same as those of Parliament and its members. Salaries and allowances for members, which differ from one State to the other, are determined by the Legislature. As regards the privileges of the Legislature, repeated efforts have been made by the State Legislatures on the one hand and High Courts and the Supreme Court on the other to treat themselves as the repository of privileges which could not be infringed by the other. There have been cases of High Courts declining to interfere in matters falling within the exclusive rights of the Legislature and leaving to the Speaker, as the holder of the office of the highest distinction, the responsibility of maintaining the prestige and dignity of the House. It was decided by a majority of Judges in the Supreme Court in a famous case that the fundamental right to freedom of speech guaranteed to a citizen under Article (19) 1 (a), could not over-ride the privileges of the Legislature which had been conferred on it by Constitutional law. It was, at the same time, pointed out by a dissenting Judge that freedom of speech also was an important fundamental right and, while the Legislature had the right to prevent mala fide publication of the proceedings, it was not quite necessary to accord a preferred position to the privileges of the Legislature over the fundamental rights of the citizens expressly guaranteed by the Constitution.
There are many restrictions on the powers of the state legislature which make them subservient to the will of the Parliament despite the fact that the Constitution allots them a certain residue of authority that, just for some theoretical reasons, may be identified with their area of sovereignty. The restriction on the powers of the state legislatures are as follows: (i) State legislatures can neither legislate on an item of the Union List nor a residuary subject (ii) Though it can enact laws on a subject mentioned in the Concurrent List, it is Central law which shall prevail and to the extent to which the state law is violative of Central law it will be ultra vires or constitutional (iii) Article 249 provides that the Rajya Sabha may pass a special resolution by a two thirds majority of members, present and voting, to transfer any item from the State List to the Union or Concurrent Lists for the period of one year on the plea that it is expedient in the national interest (iv) There are some categories that require that a bill passed by the state legislature shall be reserved by the Governor for the consideration of the President, even though unanimously passed by the state legislature. Bill dealing with compulsory acquisition of private property, being derogatory to the powers of the High Court, or seeking imposition of tax on a commodity ‘essential1 by an act of Parliament, or any other bill likely to conflict with some Union law already in force fall within this category (v) The state legislatures cannot override the veto of the President (vi) There are some kinds of bills that cannot be introduced in the state legislatures without the prior permission of the President. Bills seeking to impose restrictions on trade, commerce or intercourse with other states or within the state fall within this category (vii) The President is empowered to declare a states of emergency in the country without consulting the states. But once such an emergency has been declared, the Parliament is empowered to legislate on the subject mentioned in the State List. Thus, “The position of the state legislatures, in practical terms, is like that of a local and vassal Parliament working under the over lordship of the Parliament of India.
CASE AGAINST LEGISLATIVE COUNCIL
In view of the inherent weaknesses of Vidhan Parishads, some critics are of the view that these should be abolished. According to them in case Parishad agrees with what is passed by the Assembly then it is simply a superfluous House. In case it does not then it will be characterised as a mischievous House and will be charged as citadel of reaction standing on the way of policies and programme of duly elected House. Then another criticism levied against this House is that it is no check on the Assembly. A money bill can be delayed only for a period of 14 days, which is very insufficient period for the members to express their viewpoint. Even in the case of non-money bills it can only delay a bill for a period of 4 months and if the Assembly is bent upon passing a measure no efforts on the part of the Parishad can check it. Similarly, the Council of Ministers also does not much fear from it because a vote of no confidence does not have any effect for the Ministry. It is also argued that the Parishads are usually not even progressive. These have no directly elected elements. Some of the members are nominated ones. Their composition is such that these are not supposed to know public sentiments. Thus, the House is characterised as reactionary and conservative. Then against the Councils it is argued that in these House scholarly or literary or social workers are not nominated. Instead, this chamber is used for providing berth to defeated politicians or those active party workers who somehow or other could not be accommodated in the Assembly or dissidents in the party to avoid party frictions. In other words, the Upper Houses neither represent any caste, class or section of society but only vested interests. All elections or nominations are made on party basis and these chambers are only for increasing party interests and influences. Then the us.ua! argument is that since these chambers do not serve much useful purpose, therefore, their maintenance is not worth the cost which the nation is required to pay for its upkeep and by way of salaries, allowances and other expenses of the members. In case Parishads are abolished the taxpayer will be much saved and the money saved can be used for other useful purposes, including economic development. The very fact that only five States have retained Vidhan Parishad proves that bicameralism is not a very popular institution in India in the states. Moreover, practical experience has shown that those states which have no Vidhan Parishads are in no way doing work less efficiently than the other states. In case the Parishads had been doing very useful work, then the other states must have gone for it Then it is not clear to who the Parishads represent. In case it is said that in it the teachers and graduates are to be given representation, along with those who are engaged in the promotion of co-operative work, then why only these vocations and why not other very important vocations and occupations. In case it is felt that in that those who have excelled in any walk of state life, should be given representation, then why nomination has been kept at only 1\6. It should have been kept much higher than this low percentage. The purpose of creating an Upper House is that it should act as a revisory chamber. It is presumed that in this House there will be calm and serene atmosphere, where every problem will be discussed in a passionless atmosphere because the elders have held out no promises to the people at the time of their election. But again this is not true because in the Upper House also political considerations very much weigh with the members. Each member votes more or less on party lines and it is said that an Upper House is just extension of the lower House, in so far as political parties are concerned. There is also no calm atmosphere in these Houses. The elders quite often quarrel with each other and do not provide much-needed calmness. According to some thinkers, Upper House are necessary because these give sufficient time to the people to express their views. According to them when a bill is travelling from the Assembly to the Parishad, the people come to know what is going to be passed. Intervening time can be utilised for expressing opinion by the public and in case there are strong reservations, the bill can be modified as well. But again this is not correct because the time taken in passing each bill in one House and stages through which it passes are so many that the people have sufficient time to express themselves, through press and platform. On this ground also the Upper House has no utility.
ARGUMENTS IN FAVOUR OF LEGISLATIVE COUNCIL
But there are equally strong arguments about the retention of Upper House. The supporters of these Houses have their own arguments to advance. They feel that these House must be retained in the national interest. In favour of these Houses it is said that in India the lower House are constituted on the basis of universal adult franchise. There are no voting qualifications based on education and property. In the Lower House both the literate as well as illiterate vote on political considerations. It is argued out that in case democracy is to be saved from the caprice of uneducated persons it is essential that there should be Upper House. The argument advanced is that in every state there are people who have excelled in certain walks of life. The nation must take advantage of their abilities and capabilities. But these persons have no interest in contesting elections. Their services can best be utilised only with the help of Vidhan Parishads. it is also argued that the very fact that there is another House, creates a very sobering effect on the lower House, which does not feel tempted to pass a bill either in haste or under the influence of some momentary impulses. In case any half cooked measure comes up then at least Upper House points that out to the duly elected representatives of the people, leaving to them to accept the suggestion or not. In other words, it points out the gravity of problems and suggests a solution but does not very much care whether suggestions have been accepted or not. Then another utility of the House is that minority communities in every state can be given representation in this House. Such representation is likely to keep them very much happy and satisfied. Similarly the services of experienced persons who do not wish to contest elections, can also be used in this House. Then another argument advanced is that legislative work everywhere has very much increased. It is becoming very much impossible for any House, so some non-money bills or less controversial matters can be introduced in the Upper House and in this way pressure of work in the Lower House is considerably reduced. This is always a welcome relief for the Lower House. It is accepted that the lawmaking process has become time-consuming and sufficient time is taken by each House before a bill becomes an Act. It is also accepted that during this time, the people get an opportunity to express their viewpoint. But when the bill goes to the Upper House, the people are bit more clear as to what is going to be passed. Moreover, this time interval is always a welcome because during this period the people can express themselves and if need be changes can even now be introduced. It is also argued that Upper House do not stand in any way on the determination of duly elected representatives of the people. All that they do is that they point out certain drawbacks and shortcoming which should always be welcome. These Houses can serve very useful purpose in case all political parties return there men of eminence who have long and varied experience of life and maintain a good position in society. If they are the people with the strength of character and also capacity to render service to the society they can do a lot of good to the society. Only those should be nominated who enjoy high reputation for their qualities of head and heart and a spotless life career.