STATE LEGISLATURE

State legislatures include the governor, legislative assembly and legislative council

The state legislatures are not uniform in their structure across states. Certain state legislatures are bicameral in their organization-

  • an Upper house or the Legislative council (Vidhan parishad) and
  • the lower house – the state legislative assembly (Vidhan Sabha)

Most of the states in India are unicameral– only having the legislative assembly.

Currently, 6 states in India have the Legislative Council. They are:

  1. Maharashtra
  2. Karnataka
  3. Andhra Pradesh
  4. Telangana
  5. Uttar Pradesh
  6. Bihar

There are proposals to abolish the Council in Andhra Pradesh.

Until Article 370 was in place, Jammu & Kashmir also had a Legislative Council under its own Constitution. Now, it is a Union Territory with a Legislative Assembly.

Parliament can create or abolish the second chamber if state legislative assembly makes a resolution by a special majority. This isn’t considered an amendment to the constitution so parliament can pass law by a simple majority.

MAIN CONSTITUTIONAL ARTICLES DEALING WITH STATE LEGISLATURES

  • Article 168: Constitution of Legislatures in States.
  • Article 169: Abolition or creation of Legislative Councils in States.
  • Article 170: Composition of the Legislative Assemblies.
  • Article 171: Composition of the Legislative Councils.
  • Article 172: Duration of State Legislatures.
  • Article 173: Qualification for membership of the State Legislature.
  • Article 174: Sessions of the State Legislature, prorogation and dissolution.
  • Article 175: Right of Governor to address and send messages to the House or Houses.
  • Article 176: Special address by the Governor.
  • Article 177: Rights of Ministers and Advocate-General as respects the Houses.

The permissible strength of a Legislative Assembly (LA) is between 60 and 500.

Total number of Members in the Legislative Council (LC) of a State shall not exceed one third of the total number of Members in the Legislative Assembly.

Composition of the Assembly

  • The state legislative assembly consists of directly elected representatives of state constituencies.
  • Governor can also nominate 1 member from the Anglo-Indian community of the state if she feels they are inadequately represented in the assembly.
  • A certain number of seats in the assembly are reserved for SC/ST members in proportion to their population in the state.

Composition of the Council

The state legislative council consists of members indirectly elected by different sections of the population – Local self-governing bodies (Municipalities, District board), MLAs, Graduates residing in state, Teachers of 3 years standing in state and remaining members are nominated by Governor in lieu of their expertise in domains such as art, literature, social service, music, science, cooperative movement.

Composition of legislative council

  • One third members are elected by legislative assembly members
  • One third are elected from local bodies,
  • One twelfth are elected by graduates of three years standing and residing in state
  • One twelfth are elected by teachers of three years standing and not lower in standard than secondary school
  • One sixth is nominated by governor.

DURATION OF ASSEMBLY:

Normal term is 5 years from the date of first session. However governor can dissolve it anytime. During emergency   its term can be extended by one year at a time. But not beyond a period of 6 months after emergency is removed.

Duration of council:

The legislative council is a permanent body. One third members retire every 2 years. Vacancy is filled at beginning of third year. Term of each member is 6 years. A member can be re-elected or re nominated any number of times.

LEGISLATIVE COUNCIL VS LEGISLATIVE ASSEMBLY

  1. Ordinary Bills: Legislative council acts merely as a check mechanism and can at the maximum delay the passage of an ordinary bill by 4 months, it is hence merely a dilatory chamber. A bill originating in the council once rejected by assembly becomes dead.
  2. Money Bill: Legislative council can only pass recommendations to a money bill within 14 days of its passage from lower house. The assembly may or may not accept recommendations of legislative council. A money bill cannot be introduced in the council
  3. Creation or Abolition of the council: The very existence of legislative council remains on will of assembly as it can pass a resolution calling for its abolition in the event of which the parliament would initiate proceedings for the same
  4. Budget: The legislative council can discuss only on demand for grants, they have no power to vote for the same
  5. Election of President: The members of legislative council do not take part in electoral process of president

Need of Legislative Council

  • Check mechanism: A second chamber at state level acts as an advisory body which passes recommendations regarding bills to the assembly. It can hence help in avoiding hastily passed, ill-thought and ill-conceived bills from state legislative assembly
  • Domain Expertise: The council provides for domain expertise for eminent personalities from various fields of science, art, music, literature and social service.

Arguments against Legislative Council

  • Costly Luxury: Legislative councils in lieu of presence of legislative assembly may be an unnecessary and costly luxury that is not imperative to sustain democratic process of law making. Unlike the Rajya Sabha that has a federal mandate, the legislative council does not have a particular purpose of utility.
  • Delay: A secondary chamber for legislation hinders expeditious passing of legislations causing unwanted delays in legislative process of bicameral states
  • Political Misuse: The Council has been misused to circumvent and dilute the will of the people reflected in elections to state assemblies by facilitating an alternate way of representation.
  • Similar Opinions in Both Houses Less Utility: It does not serve the purpose of being an advisory body to the assembly as different ideologies and opinions are not articulated owing to a political concurrence between the 2 houses.

QUALIFICATION AND DISQUALIFICATION

Qualifications for a member of state legislature:

  1. Citizen of India
  2. must not be less than 30 yrs in case of council and 25 yrs in case of assembly
  3. For legislative council and assembly he must be an elector from the concerned state belonging to any constituency.
  4. For nomination by the governor he must be a resident in the state
  5. He must be a SC or ST to contest from reserved seats for them. But they can contest from unreserved seats too.

Disqualifications:

  1. holds an office of profit under union or state government only [not local]
  2. unsound mind, undischarged insolvent and not a citizen of India
  3. been found guilty of electoral offences and corrupt practices in elections
  4. sentenced for more than 2 yrs imprisonment for a crime
  5. holds an office of profit in a company where govt holding is 25% and above
  6. has interest in government contracts, works
  7. Has been convicted of preaching social crimes like untouchability, dowry and sati.
  8. doesn’t lodge election expense on time
  9. has been convicted of promoting enmity between groups or bribery
  10. Has been dismissed from government service for disloyalty to state or corruption.

PRIVILEGES OF THE LEGISLATURE OF A STATE

The privileges of the Legislature of a State are similar to those of the Union Parliament inasmuch as the constitutional provisions are identical. The question of the privileges of a State Legislature has been brought to the notice of the public particularly in relation to the power of the Legislature to punish for contempt and the jurisdiction of the Courts in respect thereof. Though all aspects of this question have not yet been settled, the following propositions may be formulated from the decisions of the Supreme Court

  1. Each House of the State Legislature bas the power to punish for breach of its privileges or for contempt.
  2. Each House is the sole Judge of the question whether any of its privileges has, in particular case, been infringed, and the Courts have no Jurisdiction to interfere with the decision of the House on this point
  3. The Court cannot interfere with any action taken for contempt unless the Legislature or its duly authorized officer is seeking to assert a privilege not known to the law of Parliament; or the notice issued or the action taken was without jurisdiction.
  4. The Court cannot interfere with an erroneous decision by the House or its Speaker in respect of a breach of its privilege.

No House of the Legislature has, however, the power to create for Itself any new privilege not known to the law and the Courts possess the power to determine whether the House In fact possesses a particular privilege.

STATE LEGISLATURE vs PARLIAMENT

1.Demarcation of Subjects:

  • Schedule 7 of the constitution clearly demarcates subjects of legislation for the parliament and state legislatures.
  • Parliament can legislate on Union list, concurrent list and also holds residuary powers while the state legislatures can legislate on state list and concurrent list.
  • In cases of conflict on laws passed in the concurrent list, the law made by parliament prevails.
  • Hence parliament has slight edge evidence of unitary bias in Indian federal system.
  • The Parliament can also legislate in matters in state list in special scenarios earlier elucidated. The Rajya Sabha may pass a resolution to that effect.

2.Constitutional Amendment:

  • Only the parliament can initiate the process for constitutional amendment.
  • In cases where federal provisions of the constitution are affected, ratification of more than half the state legislatures are required.
  • The Parliament can however unilaterally alter territories of state without the consent of the state legislature through a constitutional amendment passed by a simple majority.

3.Institution of Governors:

  • The constitution provides for the office of a governor of state who shall be the agent of the centre.
  • A governor enjoys discretion as to reserving bills passed by the legislature for consideration of president.
  • The governor is not liable for his actions nor is he binding to the advice of state council of ministers.
  • Union executive exercises a certain amount of control through the institution of governor over state legislations. It is reflective of the unitary bias on the Indian constitution.

4.All-India Services

  • Rajya Sabha may pass a resolution by a special majority for the creation of All India services. Such a resolution needs to be concurred by the Lok Sabha.
  • The All India services ensure uniformity in governance, administration and quality throughout states across India.
  • They are reflective of the unitary bias and may affect autonomy of states in dissipating governance in accordance to their wishes.

5.Election of Vice-President:

  • While all directly elected members participate in election of President, only members of parliament participate in election of vice-president.

6.Fundamental Rights:

  • The constitution empowers the parliament with exclusive authority to pass legislations to give effect to fundamental rights elucidated in the constitution.

7.President’s Rule

  • The parliament can take over the function of state legislature or devolve the same to an appropriate authority in cases where President’s rule has been established in the state
Union Parliament State Legislatures
Bicameral Mostly unicameral – only 6 states are bicameral
Article 79 to122 in Part V of the Constitution Articles 168 to 212 in Part VI of the Constitution
If a bill is introduced in a House, and it passes it, then the other House can:

1.    Pass the bill as it is.

2.    Reject the bill altogether.

3.    Pass the bill with some modifications and return it to the first House for reconsideration.

4.    Nothing is done to the bill for 6 months, which means both Houses are in disagreement.

In this case, a joint sitting of both the Houses is convened and made, to break the constitutional deadlock.

The Legislative Councils (LC) have only advisory powers by and large.

They have lesser powers when it comes to law-making.

If a bill is introduced in the LC, which is passed by it, and it goes on to the Assembly:

1.    The Assembly rejects the bill.

2.    It passes the bill with some modifications which are unacceptable to the LC.

In both the above cases, the bill comes to an end.

However, if the bill originates in the Assembly, and it is either rejected or passed with modifications not acceptable by the LC, it does not come to an end.

There is no provision for a joint sitting of the Council and the Assembly. In the case of a disagreement, the decision of the Assembly is deemed final.

Note: Money bills can originate only in the Legislative Assembly.

Members: Lok Sabha: 552 (Max.)

Rajya Sabha: 250 (Max.)

Members: Legislative Assembly: Between 60 and 500

Legislative Council: Not more than one-third of the membership of the State Legislative Assembly, and cannot be under 40.

Election to the Rajya Sabha:

Members are elected by the elected members of the State Legislative Assemblies by means of proportional representation by means of a single transferable vote.

Election to the Legislative Councils:

Members are elected by five different constituencies through a process of the single transferable vote system.

1.    ⅓ of the members are elected by the local authorities’ representatives (Gram Panchayats, Municipalities, Block Parishads, etc.)

2.    ⅓ of the members by the MLAs.

3.    1/12 of the members are elected by the teachers (of secondary schools, colleges and universities) in the state.

4.    1/12 are elected by the graduates in the state.

5.    Remaining 1/6th are nominated by the Governor from persons having experience or knowledge in the fields of science, art, literature, social service or cooperative movement

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