STATE LEGISLATURES: Part VI- Articles 168 to 212.

STATE LEGISLATURES: Part VI- Articles 168 to 212.

 

ORGANISATION OF STATE LEGISLATURES:

 

  • No uniformity in state legislatures
  • 6 states with Bicameral Legislature: (Andhra Pradesh, Telangana, Maharashtra, Karnataka, Uttar Pradesh, Bihar)
  • State legislature consist of à governor + legislative assembly (Vidhan Sabha) + legislative council (Vidhan Parishad) (in case of bicameral).

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Article 169: Parliament can abolish a Legislative Council or create it, if the legislative assembly of the concerned state passes a resolution by a Special Majority to that effect. This Act of Parliament is not to be deemed as an amendment of the Constitution for the purposes of Art. 368 and is passed like an ordinary piece of legislation (by Simple Majority).

 

COMPOSITION OF ASSEMBLY
 

 

 

Strength

•         Representatives directly elected on the basis of universal adult franchise.

•         Maximum strength: 500, Minimum strength:60.

•         Arunachal P., Sikkim, Goa-Min strength-30

•         Mizoram-40, Nagaland-46

•         Some members of Sikkim & Nagaland- indirectly elected.

•         Note: In all state assemblies, not all members are directly elected (exception Sikkim & Nagaland).

Nominated members •         Earlier one Anglo-Indian could be nominated by Governor to the assembly (A.334). 104th Constitutional Amendment (2019) abolished this reservation to Anglo-Indians.
Territorial Constituencies •         For conducting direct elections.

•         Demarcation of these constituencies: ratio between population of each constituency and the number of seats allotted to it is same throughout the state.

Readjustment after each census •         Readjustment in the total number of seats in the assembly and division of each state in territorial constituencies.

•         The Parliament is empowered to determine the authority and its manner.

 

Reservation of seats for SCs & STs

•         Reservation of seats for SCs & STs in assembly of each state based on their population ratios.

•         Originally this reservation for 10 years, but extended by 10 years thereafter continuously.

•         104th Constitutional Amendment: reservation extended for another 10 years till 2030.

•         Note: SCs & STs reservation only in Lok Sabha and State Assemblies & not in Rajya Sabha and State Legi. Council.

 

Duration

•         Normal term: 5 years (can be extended by parliament during national emergency under Article 352)

•         Governor can dissolve at any time

 

COMPOSITION OF COUNCIL:
Strength •         Max strength: One third of total strength of assembly

•         Min strength: 40

•         Members are indirectly elected.

•         The constitution has fixed the maximum and minimum limits but actual strength is fixed by Parliament.

 

 

 

Manner of election:

5/6 of the total number of members of a legislative council are INDIRECTLY ELECTED:

•         1/3: by the members of the local bodies like municipalities, district board etc.

•         1/3: by members of Legi.  Assembly.

•         1/12: by graduates of three years standing & residing in the state.

•         1/12: teachers of three years standing in the state, not lower in standard than secondary school.

•         1/6 NOMINATED by the Governor having knowledge & experience in Cooperative Movement, Literature, Arts, Social Service, Science (Pneumonic: CLASS)

•         Members other than nominated are elected in accordance with the system of proportional representation by means of single transferrable vote.

Duration •         Continuing chamber (permanent body)

•         One third members retire on the expiration of every second year.

•         Retiring members are eligible for re-election and re-nomination by the Governor.

 

MEMBERSHIP OF STATE LEGISLATURE:

 

 

 

 

 

 

 

Qualification

QUALIFICATION ACCORDING TO THE CONSTITUTION:

a.       Citizen of India

b.       Make and subscribe to an oath or affirmation before the person authorized by the Election Commission.

c.       Age: Not less than 30 years for Legi. Council

Not less than 25 years for Legi. Assembly.

d.       Must possess other qualifications prescribed by the Parliament.

QUALIFICATION ACCORDING TO RPA 1951 (BY PARLIAMENT):

a.       To be elected to Legislative Council, he must be an elector for the assembly constituency in that state & to be nominated by the governor, must be a resident that state.

b.       To be elected to the Legislative Assembly, must be an elector for the assembly constituency in that state.

c.       He must be a member of SC/ST if he wants to contest a seat reserved for them. However, SC/ST member can contest a seat not reserved for them.

 

 

 

 

Disqualification

ACCORDING TO THE CONSTITUTION:

a.       If he holds office of profit (not defined under Consti. Or any law) under Union Govt or any State

b.       Unsound mind and so declared by the court

c.       Undischarged insolvent

d.       Not citizen of India or voluntarily acquired the citizenship of other country

e.       If disqualified under any law made by the Parliament.

Note: Governor’s decision is final on above disqualifications and governor should obtain the opinion of ECI

Disqualification on the ground of defection •         Disqualified under the provisions of the 10th schedule of the Constitution.

•         Note: Disqualification under 10th schedule is decided by the Chairman in case of Legi. Council & Speaker in case of Legi. Assembly.

•         Kihota Hollohan vs. Zachilhu Case: SC said that decision of Chairman/Speaker is subject to judicial overview.

Oath or affirmation •         Before taking seat in any of the house, member has to make & subscribe an oath or affirmation before the Governor or some appointed by him for this purpose.

•         Without taking oath, he cannot vote & participate in the proceedings of the house and no privileges & immunities are available.

 

 

 

Vacation of seats

•         DOUBLE MEMBERSHIP: Cannot be a member of both the houses at same time. One seat becomes vacant as per the law made by state Legi.

•         DISQUALIFICATION: As per Constitution or RPA 1951 or Tenth Schedule.

•         RESIGNATION: Resign letter to Chairman of Council or Speaker of Assembly as per the case.

•         ABSENCE: If he is absent for 60 days without permission of the house.

•         OTHER CASES: Election declared void by the court, expelled by the house, elected as President or VP, appointed as governor.

 

PRESIDING OFFICERS OF STATE LEGISLATURE:
  • Legislative Assembly: Speaker & Deputy Speaker, Panel of Chairmen
  • Legislative Council: Chairman & Deputy Chairman, Panel of Vice-Chairmen

 

SPEAKER & DEPUTY SPEAKER OF ASSEMBLY:

Elected by the assembly from amongst its members. Remains in office during the life of the assembly. Election of Deputy Speaker takes place after the election of Speaker. He vacates his office earlier in three cases (Applicable to both):

  1. If he ceases to be a member of the assembly.
  2. Speaker Resigns by writing to the deputy speaker and vice versa.
  3. Removed by the resolution passed by a majority of all the then members of the assembly. Such resolution can be moved only after giving 14 days advance notice.

 

 

 

 

Powers & duties of Speaker:

 

•         Maintains order & decorum of assembly

•         Final interpreter of Constitution, rules of procedure and conduct of business of assembly, legislative precedents within the assembly.

•         Adjourns the assembly or suspends the meeting in the absence of quorum.

•         Does not vote in first instance. Vote in case of tie.

•         Allows secret sitting of the house at the request of the leader of the house.

•         Whether a bill is money bill or not is decided by speaker and his decision is final.

•         Decides disqualification under Tenth Schedule.

•         Appoints the chairman of all committees of the assembly. He himself is a chairman of the Business Advisory Committee, Rules Committee and General-Purpose Committee.

Deputy Speaker: •         Performs duties of speaker when it is vacant or speaker is absent from the sitting.
 

Panel of Chairmen:

•         Members are nominated by the Speaker. Member of Panel presides over sitting if both speaker & deputy speaker are absent from the sitting. He has the same powers of speaker while presiding.

•         Note: Member of the Panel cannot preside over sitting if both seats of speaker & deputy speaker are vacant. In that case, house must elect speaker and deputy speaker.

 

The salaries and allowances of the Speaker and the Deputy Speaker of the assembly are fixed by the state legislature. They are charged on the Consolidated Fund of the State and thus are not subject to the annual vote of the state legislature.

 

CHAIRMAN AND DEPUTY CHAIRMAN OF COUNCIL:
  • Elected by the Council from amongst its members. He vacates his office earlier in three cases (Applicable to both):
  1. If he ceases to be a member of the Council
  2. Chairman resigns by writing to the deputy Chairman and vice versa
  3. Removed by the resolution passed by a majority of all the then members of the Council. Such resolution can be moved only after giving 14 days advance notice.
  • All the powers and duties of Speaker & Chairman are same. Speaker has one special power regarding Money Bill which Chairman do not possess.
Deputy Chairman: •         Performs duties of Chairman when it is vacant or Chairman is absent from the sitting.
 

 

Panel of Vice-Chairmen:

•         Members are nominated by the Chairman. Member of Panel presides over sitting if both Chairman & Deputy Chairman are absent from the sitting. He has the same powers of Chairman while presiding.

•         Note: Member of the Panel cannot preside over sitting if both seats of Chairman & Deputy Chairman are vacant. In that case, house must elect Chairman and Deputy Chairman.

 

The salaries and allowances of the Chairperson and the Deputy Chairperson of the Council are fixed by the state legislature. They are charged on the Consolidated Fund of the State and thus are not subject to the annual vote of the state legislature.

 

SESSIONS OF STATE LEGISLATURE:

 

Summoning •         Governor summons from time to time.

•         Max gaps between two sessions: not more than 6 months

Adjournment •         Suspends the work in sitting for a specified time which may be hours, days or weeks.

•         Adjournment sine die à terminating a sitting for an indefinite time.

•         Power to adjourn and adjournment sine die lie with presiding officer of the house.

Prorogation •         After adjournment sine die, governor issues notification for prorogation. This means completion of current session.
Dissolution •         Dissolution ends the life of the existing house.
 

 

 

Lapsing of bills on dissolution

BILLS WHICH LAPSE:

•         Bill pending in assembly lapses (whether originating in assembly or transmitted to it by the Council)

•         Bill passed by assembly but pending in Council lapses

BILLS WHICH DOES NOT LAPSE:

•         Bill pending in Council but not passed by assembly does not lapse.

•         Bill passed by assembly (unicameral) or both the houses (bicameral) but pending assent of governor or president does not lapse.

•         Bill returned by the president for the consideration of the house does not lapse

Quorum •         10 members or one tenth of the total number of members of the house (including presiding officer) whichever is greater.

•         If no quorum, presiding officer either adjourns or suspends the meeting until there is quorum.

Voting in House •         Simple majority for all matters.

•         Special majority: Resolution for creation or abolition of Legi. Council

•         Absolute Majority: Removal of speaker or chairman

•         Speaker & chairman does not vote in first instance – casting vote

Language in state legislature •         Acc to Constitution: Language for transacting business in legislature to be official languages of the state or Hindi or English.

•         Presiding officer can permit the member to address the house in his mother tongue.

•         State legi. is authorized to decide whether to continue or discontinue English as floor language after completion of 15 years from the commencement of the Constitution.

Rights of ministers & Advocate General •         Every minister & Advocate General have the right to speak in either house or its committees without being entitled to vote.

 

LEGISLATIVE PROCEDURE IN STATE LEGISLATURE:

 

1. ORDINARY BILLS:

 

Bill in the originating house •         Can be introduced in either house and by minister or private member.

•         The bill passes through- first reading, second reading, third reading.

•         If a bill in second house passed by without any amendments then it is sent to Governor for his assent

 

 

 

 

 

Bill in second house

•         Passes through 3 readings again. Four options available with Council:

1.       Pass without amendments

2.       Pass with amendments and return it to assembly for reconsideration.

3.       Reject the bill altogether

4.       May not any action & keep it pending for 3 months.

•         If passed without any amendments then sent to governor for his assent.

•         In 2nd, 3rd & 4th option, assembly may pass the bill again and transmit it to Council again. If Council, passes the bill with amendments not acceptable to the assembly or rejects the bill altogether or keeps pending for 1 month, then the bill is considered as passed by both the houses.

•         Ultimate power to pass the law lies with the assembly and council can keep it pending for max 4 (3 + 1) months.

•         Constitution does not provide for joint sitting to resolve the disagreement over the bill.

 

 

Assent of Governor

•         Governor has 4 alternatives:

1.       Give assent to the bill

2.       Withhold assent

3.       Return the bill for the reconsideration of the house

4.       Reserve the bill for the consideration of president

•         If governor gives the assent then bill becomes law.

•         If governor withholds his assent, then bill ends.

•         If bill returned by the Governor is again passed by the house with or without amendments then governor must give his assent (Governor has only suspensive veto).

 

 

Assent of President

•         President has 3 alternatives:

1.       Give assent to the bill

2.       Withhold assent

3.       Return the bill for the reconsideration of the house

•         If the bill returned by the President for reconsideration of the house then the house must reconsider it within 6 months. It is not mentioned in the Constitution that whether it is obligatory on the President to give assent or not to such reconsidered bill.

 

2. MONEY BILLS (ARTICLE 198, 199):

 

Money bills introduction:

 

  •          Cannot be introduced in Council.
  •          Can only be introduced in Assembly on the recommendation of Governor.
  •          Can only be introduced by minister as it is government bill.
 

 

 

 

Procedure:

 

  •          After Legislative Assembly passed the bill; it is transmitted to the Legislative Council for its consideration.
  •          Legislative Council has restricted powers with regards to money bill.
  •          Council cannot reject or amend a money bill.
  •          Council can only make recommendations and must return the bill within 14 days.
  •          If the Assembly accepts the recommendations of Council, the bill is considered as passed in the modified form. If it rejects the recommendations then bill is considered as passed in the original form. If the Council does not return the bill in 14 days, then bill is considered as passed by both the houses in the original form.
Assent of Governor:
  • Give assent; Withhold assent; Reserve the bill for presidential assent; Governor cannot return the bill for the reconsideration of the house.
Assent of president:
  • If the money bill is reserved for consideration of the president, he can: Give assent; Withhold assent; President cannot return the bill for the reconsideration of the House.

 

POSITION OF LEGISLATIVE COUNCIL:

 

 

 

EQUAL WITH

ASSEMBLY

•         Introduction & passage of ordinary bills. But in case of disagreement, the will of assembly prevails over council.

•         Approval of ordinances issued by Governor (A. 213).

•         Selection of ministers including CM. But ministers are responsible only to assembly irrespective of their membership.

•         Consideration of reports of constitutional bodies like State Finance Commission, CAG.

•         Enlargement of the jurisdiction of state public service commission.

 

UNEQUAL WITH

ASSEMBLY

•         Money bill can only be introduced in the assembly, council cannot amend or reject the bill.

•         The final power to decide whether the bill is money bill or not is vested with the Speaker of Assembly.

•         The final power of passing ordinary bills lies with the assembly. The council can delay the bill for maximum 4 months (3 + 1).

•         The council can only discuss the budget but cannot vote on demands.

•         The council cannot remove CoM by passing a no-confidence motion.

•         If the ordinary bill originated in council is rejected by assembly, then the bill ends there.

•         The council does not participate in the election of the president and representatives of the state in the Rajya Sabha.

•         The council does not have effective say in the ratification of a constitutional amendment bill and will of assembly prevails over council.

•         Existence of council depends on the will of assembly. The council can be abolished by the parliament on the recommendation of the assembly.

 

PRIVILEGES OF STATE LEGISLATURE:
  • Privileges = special rights+ immunities + exemptions enjoyed by the houses, their committees & members.
  • Privileges are important to secure the independence & effectiveness of their actions.
  • Constitution has also extended these privileges to those persons who are entitled to speak & take part in the proceedings of the House of state legi. or any of its committees. These include advocate general of state and ministers.

 

NOTE: The privileges of the state legislature do not extend to the governor who is also an integral part of state legislature.

 

 

 

 

 

 

Collective Privileges

1.       Right to publish reports, debates & proceedings and also the right to prohibit others from publishing the same.

2.       It can exclude strangers from its proceedings and hold secret sittings to discuss important matters.

3.       It can make rules to regulate its own procedure and the conduct of its business & to adjudicate upon such matters.

4.       It can punish members as well outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment.

5.       It has the right to receive immediate information of arrest, detention, conviction, imprisonment and release of members.

6.       It can institute inquiries and order the attendance of witnesses & send for relevant papers and records.

7.       The courts are prohibited to inquire into the proceedings of the house or its committees.

8.       No person (either a member or outsider) can be arrested and no legal process (civil/criminal) can be served within the precincts of the house without the permission of the presiding officer.

 

Individual privileges

1.       Members cannot be arrested during the session of the state legislature & 40 days after the end of such session. This privilege is available only in civil cases and not in criminal cases or preventive detention cases.

2.       Members have freedom of speech in state legi. No member is liable to any proceedings in any court for anything said or any vote given by him in the state legi or its committees.

3.       Members are exempted from jury service. They can refuse to give evidence & appear as witness in a case pending in a court when the state legislature is in session.