In India, the Constitution makers adopted a parliamentary form of government at the state and union levels.
According to former President KR Narayanan, “Parliament and legislatures constitute the head and front of the body-politics in India. They are the institutional embodiments of the audacious experiment in democracy by the founding fathers of our republic.”
Articles 168 to 212 in part VI of the Indian Constitution deal with the composition, power, procedures, and office of the state legislature.
There is no uniformity in the organisation of state legislature in India; while the majority of states have unicameral legislature (Legislative Assembly), a few of the states have bicameral legislature (Legislative Assembly and Legislative Council).
Composition of the State Legislature
The state legislature consists of the Governor and the Legislative Assembly (Vidhan Sabha), and in the case of a bicameral legislature, it also includes the legislative Council (Vidhan Parishad).
The legislative assemblies are elected directly on the basis of universal adult suffrage using the ‘first past the post’ system. In comparison, members of legislative councils are elected indirectly on the basis of proportional representation.
Strength of Legislative Assemblies and Legislative Councils:
- The strength of the Assembly varies from state to state; however, the maximum strength cannot go beyond 500, and the minimum strength cannot be less than 60 except in cases of smaller states like Arunachal Pradesh (30), Sikkim (30), Goa (30), Mizoram (40) and Nagaland (46).
Note: Some members of Sikkim and Nagaland are elected indirectly.
- The legislative Council’s strength depends on the Legislative Assembly’s strength. The maximum strength of a legislative council is 1/3rd of the Legislative Assembly, and the minimum strength is 40.
Nominated Members: The provision to nominate a member of the Anglo-Indian community in legislative assemblies was discontinued after 2020 through the 104th Constitutional Amendment Act, 2019.
In legislative councils, 1/6th of the seats are filled by nominating members who are eminent personalities from different walks of life, such as science, literature, art, social service, and cooperative movement.
|104th Constitutional Amendment Act, 2019
The Legislative councils
The 6 states, namely Uttar Pradesh, Bihar, Maharashtra, Andhra Pradesh, Telangana and Karnataka, have bicameral legislature. Earlier, the Jammu and Kashmir state legislature was also bicameral, but the legislative Council was abolished with the enactment of the Jammu and Kashmir Reorganisation Act (2019).
Further, the 7th Constitutional Amendment Act, 1956, has provided for the Legislative Council in Madhya Pradesh, but it is yet to be notified by the President.
In the past, the legislative councils in Tamil Nadu (1986), Punjab (1969) and West Bengal (1969) were abolished.
Creation and Abolition of Legislative Council
The Constitution under Article 169 provides for the abolition and creation of legislative councils in the states.
- It authorises the Parliament to abolish an existing legislative council or create a new one if the concerned legislative Assembly passes a resolution to that effect.
- Such resolutions must be passed by a special majority, i.e., a majority (1/2) of the total membership of the House and not less than 2/3rd majority of the members present and voting.
- The Parliament is not bound to act on such resolutions.
- If Parliament enacts legislation for the creation or abolition of the Legislative Council, it is not considered an amendment under Article 368. Hence, it requires only a simple majority like ordinary legislation.
Election to Legislative Council
Unlike the Legislative Assembly, the members of the Legislative Council are indirectly elected through a single transferable vote under the proportional representation system.
It must be noted that currently, only 6 state legislatures have a second House; these are: Uttar Pradesh, Bihar, Maharashtra, Karnataka, Andhra Pradesh and Telangana.
Composition of Legislative Council:
- 1/3 of the members are elected by the members of the local bodies;
- 1/3 of the members are elected by the members of the legislative Assembly;
- 1/12 of the members are elected by residents of the state who have been graduates for 3 years;
- 1/12 of the members are elected by residents of the state who have been teachers, not lower in standard than secondary school, for 3 years.
- The remaining 1/6 members are nominated by the Governor. These nominated members should be eminent personalities from different walks of life, such as art, literature, science, social service, and cooperative movement. The propriety of the nomination by the Governor cannot be challenged in any court.
The Parliament is authorised to alter the scheme of the composition of the legislative Council; however, no such law has been enacted so far.
Constituencies of the Legislative Council
The members of the Legislative Council (MLCs) represent 3 types of constituencies: the local authority’s constituency, the graduate’s constituency and the Teacher’s constituency.
Term of Legislative Council
- Every member of the Legislative Council enjoys a term of six years.
- Unlike the Legislative Assembly, the Legislative Council is a permanent body, not subject to dissolution.
- The 1/3rd members of the Legislative Council retire every two years. They are eligible for re-election any number of times.
- A person elected against a mid-term vacancy remains a member for the rest of the term only. It ensures continuity in the working of the House.
State Legislative Assembly
The State Legislative Assembly is the lower House of the State Legislature, to which the State Council of Ministers is responsible. It elects the government, controls the government and has a major role in the formation of state laws.
The members of the legislative assemblies (Vidhan Sabha) are elected through a direct election based on a universal adult franchise and a ‘first past the post’ system. In this section, we’ll look at the various provisions related to the election of legislative assemblies.
Term of State Assemblies
- The term of a state legislative assembly is five years from the date of the first sitting after the general elections.
- The Governor is empowered (on the advice of the Council of Ministers) to dissolve the Legislative Assembly at any time.
- During National Emergency, the term of state assembly can be extended by a law of Parliament for 1 year at a time for an indefinite period of time.
|61st Amendment Act, 1987
|The amendment changed the voting age in Lok Sabha elections and state legislative assemblies from 21 years to 18 years.
Territorial Constituencies (Delimitation)
A state is divided into territorial constituencies for conducting direct elections and electing members from each constituency. The division of a constituency is carried out in such a manner that each seat represents the same number of the population; this is done to ensure uniformity of representation throughout the state.
The term ‘population’ here means the population in the preceding census which has been published.
- After each census, readjustment has to be made both in the total number of seats in the Legislative Assembly of each state and the division of each state into territorial constituencies.
- The Constitution has empowered the Parliament to determine the manner in which these adjustments have to be carried out and set up an appropriate authority for that. In line with this provision, the Parliament passed delimitation acts in 1952, 1962, 1972 and 2002.
- To promote population control measures, the 42nd Constitutional Amendment Act 1976 froze the allocation of seats to the states and division of states into constituencies by 2000, at the 1971 level. This was extended till 2026 by the 84th Constitutional Amendment Act, 2001.
- Further, the 87th Constitutional Amendment Act 2003 permitted the adjustment of seats within the states as per the census figures of 2001 without altering the number of seats in the Assembly of each state.
Reservation for SCs and STs in the State Assemblies
To deal with the backwardness and historical injustices towards Scheduled Tribes and Scheduled Castes, the Constitution has provided for the reservation of seats in state assemblies for SCs and STs in proportion to their population in the state.
- It is to be noted that this provision is not equivalent to the separate electorate; the candidates are elected by all the voters of that constituency.
- The Constitution had provided for this provision to continue for 10 years; however, it has been extended continuously since then by 10 years at a time. The 104th Constitutional Amendment Act extended the reservations till 2030.
- The 87th Constitutional Amendment Act has provided for the fixing of reserved seats on the basis of 2001 census
Reservation for Women in the State Assemblies (106th Constitutional Amendment Act)
The Parliament in September 2023 passed the Constitution (One Hundred and Twenty-Eighth Amendment) Bill, 2023, also known as Nari Shakti Vandan Adhiniyam, providing reservation for women in 1/3rd of the seats in the state legislatures. [Article 332A]
The reservations would continue for 15 years and can be further extended by the Parliament. [Article 334A]
It amends the following Articles of the Constitution:
- Article 239AA: 1/3rd of the seats in the Assembly of the National Capital Territory of Delhi shall be reserved for women. It includes 1/3rd horizontal reservation in seats for SCs.
- Insertion of Article 332A: 1/3rd of the seats in state assemblies shall be reserved for women. It includes 1/3rd horizontal reservation in seats reserved for SCs and STs.
- Insertion of Article 334A: The provisions for reservation would come into effect after the delimitation is undertaken on the basis of the first census after the commencement of this Act. The reservation of seats will cease to have effect after the expiration of 15 years from such commencement.
Note: The strength of women MLAs in the state assemblies was around 9% in 2019 (ADR report).
Qualification, Disqualification, Vacancy of Seats and Oath of Members of State Legislature
Qualification of Member of State Legislature
The Constitution has laid down some qualifications for the candidates for membership in the state legislature. Additionally, the Parliament has also laid down some qualifications in the Representation of People Act 1951. A candidate must be:
- A citizen of India.
- Swear an oath or affirmation stating that s/he will bear true faith and allegiance to the Constitution of India and uphold the sovereignty and integrity of India.
- At least 25 years old in the case of the Legislative Assembly and 30 years old in the case of the Legislative Council.
- Satisfying other qualifications prescribed by the Parliament.
Additional qualifications under the Representation of People Act 1951.
- A person must be an elector for an assembly constituency of the concerned state to be qualified for election in the Legislative Council.
- For the nomination to the Legislative Council, a person must be a resident of the concerned state.
- A person must be an elector in an assembly of the concerned state to be qualified for election in the Legislative Assembly.
- A person must belong to a scheduled caste or scheduled tribe (of that state) to be eligible to contest an election on a reserved seat for them.
Disqualification of Member of State Legislature
The Constitution has provided for the disqualification of members of the state legislature (both Houses) in certain conditions:
- If the person is holding any office of profit under the central or state government (except for the office of minister or any other offices exempted by the state legislature);
- If the person is not an Indian citizen, has voluntarily acquired the citizenship of a foreign state, or has declared his allegiance to a foreign state,
- If s/he is of unsound mind and declared so by a court.
- If s/he is a discharged solvent,
- If the person is disqualified under any law made by Parliament.
In addition to the Constitution, the Representation of People Act 1951 provides additional grounds for disqualification:
- If the person has been found guilty of electoral offences and corrupt practices in elections,
- If the person is convicted of an offence resulting in imprisonment of more than 2 years. However, this provision does not apply in the case of preventive detention;
- If the person fails to declare accounts of their election expenditure,
- If the person has been convicted for fostering enmity between various groups or for the offence of bribery,
- If the person has been dismissed from government service on account of corruption or disloyalty towards state;
- If the person has been penalised for advocating or practising social evils such as Sati, dowry, untouchability;
- The person must not have any interest in government contracts and services;
- The person must not be a director or managing agent in a corporation in which the government has 25% or more stake.
If any question arises regarding the disqualification of members of the Legislative Assembly, the Governor’s decision is final. The Governor makes the decision based on the opinion of the Election Commission, and that opinion is binding.
The Constitution also has provisions regarding disqualification on account of defection from political parties. Read the following table for details:
The Parliament has provided for the disqualification of representatives on the grounds of defection. These Provisions have been added to the 10th Schedule of the Constitution:
· If the person voluntarily gives up the membership of the party on whose symbol s/he has been elected to the House;
The disqualification under the 10th schedule is adjudicated by the Speaker in the case of the Legislative Assembly and by the Chairperson in the case of the Legislative Council.
Vacancy of seats
A Member of State legislature vacates their seat in the following circumstances:
- Dual Membership: A person cannot be a member of both Houses of the legislature at the same time. If a person is elected to both Houses, their membership in one of the Houses ends as per provisions made by the state legislature.
- Disqualification: If a person is disqualified on the grounds laid by the Constitution, the Representation of People Act, 1951 and the Anti-defection law (10th schedule), their seat becomes vacant.
- Resignation: A member can resign from their membership by addressing the resignation letter to the presiding officer of their House (Speaker/Chairman). The seat becomes vacant upon the acceptance of the resignation. However, the Speaker/Chairperson may refuse to accept the resignation if the resignation is not found to be voluntary or genuine.
- Absence: The seat of a Member of the state legislature can be declared vacant if s/he is absent from the meetings of the House for a period of sixty days without permission.
- Other grounds:
- If the election of a member is declared void by the Court,
- If s/he is expelled from the House (For example- on disciplinary grounds),
- If the member is appointed to a Constitutional post like President, Vice-President or Governor.
Oath and Affirmation of a Member of State Legislature
Every member of the Legislative Assembly and Legislative Council must take an oath or affirmation before taking their seat. The oath or affirmation is administered by the Governor or any other person designated by him/her. The oath and affirmation of a Member of the State Legislature is mentioned in the 3rd Schedule of the Constitution.
Powers and Functions of State Legislature
The state legislature is a multi-functional body that performs various kinds of roles. These roles are discussed below:
1. Legislative Role
Law-making is the primary function of the state legislature.
- It has exclusive powers to make laws on subjects in the state list.
- It is also empowered to make laws on subjects in the concurrent However, in case of conflict between the state laws and union laws on the Concurrent list, the latter would prevail.
- The legislature must approve ordinances promulgated by the Governor within 6 weeks after the convention of the legislature.
2. Financial Powers
As a custodian of public money, the Parliament performs several financial functions.
- State finances are controlled by the state legislature and particularly the legislative Assembly. It is the custodian of public money in the state.
- No money can be spent, and the executive can levy no tax without the approval of the state legislature; for this purpose, the Budget is laid before the Parliament for its approval.
3. Control over Executive
Like the Union Legislature, the State Legislature keeps control over the executive.
- The Council of Ministers is responsible to the state assembly collectively and remains in office so long as it enjoys the confidence of the state assembly.
- The state legislature exercises control over the executive through several parliamentary devices such as Question hour, motions such as calling attention motion, adjournment motion, etc.
- The legislative Assembly can remove the ministry (Council of Ministers) by passing a no-confidence motion or by refusing to endorse a confidence motion.
- The legislative Assembly can also express its lack of confidence in the Council of Ministers by not passing the Budget, Money bills and even ordinary legislation.
4. Electoral Functions
- The members of the Legislative Assembly (MLAs) form the Electoral College for the election of the President of India.
- The MLAs also elect members of the Rajya Sabha in the Parliament.
- 1/3rd of members of the Legislative Council (in case of a bicameral legislature) are elected by the Legislative Assembly.
- The state legislature is empowered to make laws related to the election of local bodies in the state.
5. Constitutional Functions
- Constitutional amendments that have an implication on the federal structure require ratification by ½ of the state legislatures in the country.
- State legislatures can pass resolutions for the creation or abolition of legislative councils in their states.
6. Quasi-judicial Functions
The state legislature can penalise its members or outsiders for contempt or breach of privilege.
7. Other Functions
The state legislature has the power to change the jurisdiction of all courts except the Supreme Court. However, the state legislature cannot curtail the jurisdiction and power of the courts as specified in the Constitution.
Sessions of State Legislature
A ‘session of House’ spans from the first sitting of the House to its prorogation. The period between the prorogation and reassembly of the House is called ‘recess’.
- As per Article 174, the Governor summons the House or Houses of the state legislature to meet (on the advice of the Council of Ministers).
- The maximum gap between two sessions of the state legislature cannot be more than 6
Termination of sittings of State Legislature
The Presiding Officers can terminate the sitting of the legislature in the following ways:
- Adjournment: It suspends the sitting of the House for a specified amount of time; it could be a few hours, days or weeks.
- Adjournment Sine Die: It means terminating the sitting of the state legislature for an indefinite amount of time. It does not end the session, which means the presiding officer can call the sitting of the House at any time.
- Prorogation: After the Presiding officer declares the House adjourned sine die, the Governor prorogues the session of the state legislature. It means the session of the state legislature has ended. The Governor is empowered to prorogue the House while in session.
Dissolution of the Legislative Assembly
- Legislative Council, being a permanent body, is not subject to dissolution; only the Legislative Assembly (Vidhan Sabha) can be dissolved.
- Dissolution of the legislative Assembly leads to the end of the life of the House, and it is reconstituted after general elections.
- The dissolution of the Assembly can happen in the following situations:
- On the expiry of the tenure of the Assembly after 5 years,
- Or, it can be dissolved at any time by the Governor on the aid and advice of the CM and the Council of Ministers.
Effects on bills post-dissolution of the State Assembly
- The bills pending in the legislative assembly lapse (Whether initiated in the Assembly itself or communicated to it by the Legislative Council).
- A bill passed by the Assembly but pending in council lapses.
- A bill initiated and pending in the Rajya Council does not lapse.
- A bill for which the Governor’s or President’s assent is pending does not lapse.
- A bill passed by the Assembly or both Assembly and Council (in bicameral legislature) but sent back by the President for reconsideration does not lapse.
Quorum in the State Legislature
- It is the minimum number of members required to be present in the House for it to function and transact any business. It is a protection against any unrepresentative action by a small group.
- The quorum in each House has been fixed at 10% of the members of the House, including the presiding officer.
- The Constitution under Article 189 (4) requires the presiding officers to either adjourn the Houses or suspend the meeting until the quorum is restored.
Language in the State Legislature
Article 210 of the Constitution provides for the Language of the State Legislature.
- As per this Article, the official language/s or Hindi or English are to be used as the language for the transaction of business in the state legislature.
- The Article also provides that the Presiding officers may permit the members to express themselves in their mother tongue.
- The Constitution empowered the state legislatures to decide whether to continue with English after the 15 years from the commencement of the Constitution. In the case of Himachal Pradesh, Meghalaya, Manipur and Tripura, the time limit was set as 25 years and for Arunachal Pradesh, Goa and Mizoram, it was 40 years.
Rights of Ministers and Advocate General in State Legislature
- Despite not being a member, the Advocate General has the right to participate and speak in the proceedings of both Houses as well as the Committees of both Houses.
- A Minister is also entitled to attend the meetings and speak in any House of the legislature, irrespective of membership. Although s/he can vote only in that House of which s/he is a member.
- A minister who is not a member of any House can also participate and speak in both Houses. Remember, a person can become a minister for 6 months without becoming a member of any house.
Privileges Enjoyed by the State Legislature
- These are special rights and immunities provided to the state legislature and its members to maintain their honour, dignity and authority and to ensure they fulfil their legislative responsibilities without hindrance and fear of repercussions.
- Such privileges are also extended to non-members who are allowed to participate and speak in the proceedings of the state legislature and its committees. These persons include the Advocate General and Ministers.
- However, despite being an integral part of the state legislature, these privileges are not extended to the Governor.
Types of Legislative Privileges
The privileges are of two types:
- Individual Privileges: These are enjoyed by the MLAs and MLCs
- Collective Privileges: These privileges are enjoyed collectively by both houses of the state legislature.
- Freedom of speech in the state legislature: the members are immune from court proceedings for their acts in the legislature.
- Freedom from arrest and detention of MPs under civil process during the ongoing meeting of the legislature and committees and 40 days prior to it and 40 days after its conclusion.
- Without permission from the House, no members or officers of the House can be compelled to provide evidence or produce documents in Court relating to the House’s proceedings.
- Without the permission of the House and the member itself, no members or officers of the House can be compelled to attend as witnesses before the other House or a committee.
- The state legislature has the right to publish its reports, debates, and other House proceedings. It also has the right to prohibit others from publishing the same.
- It can exclude outsiders from proceedings of its meetings and can conduct secret sessions.
- The presiding officer has a right to receive immediate information on the arrest, detention, conviction, imprisonment and release of a member on a criminal charge or for a criminal offence.
- The state legislature can make rules for regulating its procedures, conduct of business and adjudication of such matters.
- No court can enquire about the Court’s proceedingsCourt
- al Powers of the State Legislature:
- It can suspend or expel the members for violating privileges.
- It can reprimand and even punish outsiders for breach of privileges or contempt of the legislature.
Position of Legislative Council
As we have seen, the composition of the Legislative Council is different from that of the Legislative Assembly; its election process also differs with respect to the Assembly. Its distinct position can be best understood by juxtaposing it with the status of the other House.
Equal Powers with Respect To Legislative Assembly
- Introduction and passage of ordinary bills (other than money bills).
- Approval of ordinances promulgated by the Governor.
- Selection of ministers, including the Chief Ministers, even though they are responsible to the Assembly, can be picked from the legislative Council also.
- Consideration of reports of constitutional bodies like the State Finance Commission, State Public Service Commission, Comptroller and Auditor General of India.
- In the extension of the jurisdiction of the State Public Service Commission.
Unequal Powers with respect to the Legislative Assembly
- A money bill cannot be introduced in the Council, nor can it reject or amend the bill. Also, the authority to certify a particular bill lies with the Speaker of the Assembly.
- The Council has limited power with respect to the Budget; it can discuss the provisions of the Budget but cannot vote on the demand for grants.
- With regards to the ordinary bill, too, the ultimate power to pass it lies with the Assembly. The Council can only delay the passage of a bill by a maximum of 4
- An ordinary bill is initiated in the Council and sent to the Assembly; if the Assembly rejects it, it ceases to exist.
- It has no power with respect to the No-confidence motion; it can only introduced in the Council. The Council of Ministers (CoM) is only responsible to the Legislative Assembly.
- The Legislative Council does not participate in the election of the President and the members of the Rajya Sabha.
- The Council has no say in the ratification of a Constitutional amendment by states.
- The very existence of the Council depends on the Assembly; the legislature can pass a resolution for the abolition and creation of the Assembly. Such a resolution authorises the Parliament in this regard.
|Comparison of Legislative Council with Rajya Sabha
Even though both the Rajya Sabha and Legislative Council are second chambers, the legislative councils are far less empowered than the Rajya Sabha.
· The Constitution has vested the ultimate authority to pass the bill in the Legislative Assembly. Maximum, the Council can delay the legislation for 4 months.
· On the other hand, the Rajya Sabha has equal powers vis-à-vis Lok Sabha in the case of ordinary bills.
· If the Assembly rejects a bill that the legislative Council has initiated, the bill ends. Whereas in the Parliament, there is a provision for a joint session of both Houses to resolve the disagreement over a bill.
The reasons behind giving lesser importance to the legislative Council are the following:
i. The Rajya Sabha represents the states, and hence, it plays an important role in the maintenance of the federal scheme and in the protection of the state’s interests. In comparison, the Council has no such significance.
ii. The creation of the Legislative Council is based on the principle that the House of People, that is, the legislative Assembly, should wield the ultimate power to legislate since the people directly elect it. It is modelled on the House of Lords in the British Parliament.
Relevance of Legislative Councils in the Indian Parliamentary System
The debate around the relevance of the legislative councils is an old one. Critics argue that the Council performs no substantive function and termed it as “merely ornamental”, “drain on exchequer”, “white elephant”, etc., while some argue in its favour. We will discuss both points of view here:
- As a revising body, it provides a platform for debating essential issues, scrutinising legislation, and a necessary check on the power of the executives, and it helps to ensure that laws are enacted thoughtfully and deliberated.
- A two-house legislature means more expertise and talent, which allows for wider scrutiny of legislation and also shares the burden of other House.
- It brings sobriety in the debates and discussions since it consists of people who have excelled in different walks of life and are not in the political fray.
- Representation of experts and professionals: Those experienced individuals who cannot bear the ordeal of electioneering and vicious party politics can be accommodated in the legislative councils and even in the Council of Ministers through nominations.
- Forum for Different Interest Groups: It represents the interests of several different sections of society. It has representations from students, teachers and local bodies.
Arguments against the creation of a legislative council:
- Political accommodation: the Legislative Council may be utilised to accommodate discredited party persons or defeated leaders who may not return to the assemblies.
- Superfluous: The Council has not been provided with enough powers, restricting its ability to scrutinise the actions of the executive in the legislature effectively. If two different parties hold sway in the two houses, the upper House will delay the bills for four months unnecessarily because, eventually, it is the Assembly whose say is final on any particular bill.
- Non-uniform presence: Only 6 out of 28 states have a legislative council.
- Drain on exchequer: Running a council is an expensive affair, and given the ineffectiveness of the platform, the expenses may not be justified.
- It can become a platform for obstruction: sections in the Council having vested interests against progressive legislation may block or hinder such legislation initiated by the popularly elected legislative Assembly.
The Position of the Speaker and the Law-making process is discussed in the next series of articles.
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- Composition of the State Legislature
- The Legislative councils
- State Legislative Assembly
- Qualification, Disqualification, Vacancy of Seats and Oath of Members of State Legislature
- Oath and Affirmation of a Member of State Legislature
- Powers and Functions of State Legislature
- Sessions of State Legislature
- Termination of sittings of State Legislature
- Dissolution of the Legislative Assembly
- Quorum in the State Legislature
- Language in the State Legislature
- Rights of Ministers and Advocate General in State Legislature
- Privileges Enjoyed by the State Legislature
- Types of Legislative Privileges
- Individual Privileges
- Collective Privileges
- Position of Legislative Council
- Relevance of Legislative Councils in the Indian Parliamentary System