State Legislature

Organisation of State Legislature

• No uniformity in the organization of state legislatures.
• Unicameral: Most states (22) have only a Legislative Assembly and the Governor.
• Bicameral: Six states have both a Legislative Assembly (Vidhan Sabha) and a Legislative Council (Vidhan Parishad) along with the Governor.
  • Andhra Pradesh
  • Telangana
  • Uttar Pradesh
  • Bihar
  • Maharashtra
  • Karnataka
• The Jammu and Kashmir Legislative Council was abolished in 2019.
• Tamil Nadu Legislative Council Act, 2010, has not come into force.
• Madhya Pradesh continues to have one house only.
• Article 169 allows Parliament to create or abolish Legislative Councils based on a resolution passed by the State Legislative Assembly with a special majority:
  • A majority of the total membership of the assembly
  • A majority of not less than two-thirds of the members of the assembly present and voting.
• Parliament's Act to create/abolish is not a constitutional amendment and is passed by simple majority.
• The provision for a second chamber was criticized in the Constituent Assembly for being undemocratic, delaying legislation, and being expensive.
• Andhra Pradesh: Legislative Council created in 1957, abolished in 1985, and revived in 2007.
• Tamil Nadu's Legislative Council was abolished in 1986. Punjab and West Bengal's council were abolished in 1969.
• Tamil Nadu passed a resolution in 2010 for revival, but then passed another in 2011 seeking abolition before enforcement.

Composition of Two Houses

Composition of Assembly (Vidhan Sabha)

• Directly elected representatives based on universal adult franchise.
• Strength:
  • Maximum: 500
  • Minimum: 60
  • Arunachal Pradesh, Sikkim, and Goa: Minimum fixed at 30
  • Mizoram: 40
  • Nagaland: 46
• Before 2020, the Governor nominated one member from the Anglo-Indian Community if not adequately represented, but this provision was discontinued by the 104th Amendment Act, 2019.
• Territorial Constituencies:
  • States are divided into territorial constituencies.
  • The ratio of population to seats is the same throughout the state.
• Readjustment After Each Census:
  • After each census, readjustment is made in:
    • Total number of seats in the assembly of each state
    • Division of each state into territorial constituencies.
  • Parliament empowered to determine authority and manner.
  • Delimitation Commission Acts: 1952, 1962, 1972, 2002.
• The 42nd Amendment Act of 1976 froze the total number of seats until 2000 (based on 1971 census) – later extended to 2026 by the 84th Amendment Act of 2001.
• The 84th Amendment Act of 2001 also allowed readjustment of territorial constituencies based on 1991 figures.
• The 87th Amendment Act of 2003 provided for delimitation based on the 2001 census.
• Reservation of Seats:
  • Seats are reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs) based on population ratios.
  • Originally for 10 years; extended continuously. Now extends to 2030 under the 104th Amendment Act of 2019.

Composition of Council (Vidhan Parishad)

• Members are indirectly elected.
• Strength:
  • Maximum: One-third of the assembly's total strength
  • Minimum: 40
• Manner of Election:
  • 1/3 elected by local bodies (municipalities, district boards)
  • 1/12 elected by graduates of three years' standing residing in the state
  • 1/12 elected by teachers of three years' standing (not lower than secondary school)
  • 1/3 elected by the legislative assembly from non-assembly members
  • Remainder nominated by the governor (literature, science, art, cooperative movement, social service)
• 5/6 indirectly elected; 1/6 nominated.
• Elections use proportional representation by single transferable vote.
• Parliament authorized to modify/replace the composition scheme; no such law enacted yet.

Duration of Two Houses

• Assembly: Like Lok Sabha, not a continuing chamber. Normal term is five years from the date of its first meeting. Can be dissolved by Governor before completion. Term can be extended during a national emergency by Parliament (one year at a time). Extension cannot continue beyond six months after the emergency ceases.
• Council: Like Rajya Sabha, a continuing chamber (permanent body, not subject to dissolution). One-third of members retire every second year. A member continues for six years. Vacancies filled by fresh elections/nominations at the beginning of every third year. Retiring members are eligible for re-election/re-nomination any number of times.

Membership of State Legislature

Qualifications

• Citizen of India.
• Must make an oath/affirmation (allegiance to the Constitution, uphold sovereignty and integrity).
• Age:
  • Legislative Council: Not less than 30 years.
  • Legislative Assembly: Not less than 25 years.
• Other qualifications prescribed by Parliament.
• Representation of People Act (1951) Additional Qualifications:
  • Person to be elected to the legislative council must be an elector for an assembly constituency in the concerned state and to be qualified for the governor's nomination, he/she must be a resident in the concerned state.
  • Person to be elected to the legislative assembly must be an elector for an assembly constituency in the concerned state.
  • He/she must be a member of a scheduled caste or scheduled tribe if he/she wants to contest a seat reserved for them.

Disqualifications

• Holds any office of profit under the Union or state government (except minister or office exempted by state legislature).
• Of unsound mind (declared by court).
• Undischarged insolvent.
• Not a citizen of India / acknowledges allegiance to a foreign state.
• Disqualified under any law made by Parliament.
• Parliament's additional disqualifications (Representation of People Act, 1951):
  • Guilty of electoral offenses or corrupt practices.
  • Convicted of an offense with imprisonment of two or more years (preventive detention excluded).
  • Failed to lodge an account of election expenses.
  • Interest in government contracts, works, or services.
  • Director/managing agent/office of profit in a government-owned corporation (at least 25% share).
  • Dismissed from government service for corruption or disloyalty.
  • Convicted of promoting enmity or bribery.
  • Punished for preaching/practicing social crimes (untouchability, dowry, sati).
• Governor's decision is final on disqualifications; must obtain the opinion of the Election Commission.
• Disqualification on Ground of Defection:
  • Under Tenth Schedule.
  • Decided by Chairman (Council) or Speaker (Assembly).
  • Subject to judicial review (Kihoto Hollohan case).

Oath or Affirmation

• Required before taking a seat.
• Before the Governor or a person appointed by him/her.
• Swears to:
  • Bear true faith and allegiance to the Constitution of India.
  • Uphold the sovereignty and integrity of India.
  • Faithfully discharge duty.
• Penalty of ₹500 per day for sitting/voting without oath/when disqualified/prohibited.
• Members receive salaries and allowances determined by the state legislature.

Vacation of Seats

• Double Membership: Cannot be a member of both Houses simultaneously.
• Disqualification: Subject to any disqualifications.
• Resignation: By writing to Chairman (Council) or Speaker (Assembly).
• Absence: If absent from all meetings for 60 days without permission.
• Other Cases: Election declared void, expulsion by the House, elected President/Vice-President, appointed Governor.

Presiding Officers of State Legislature

• Assembly: Speaker and Deputy Speaker.
• Council: Chairman and Deputy Chairman.
• Panel of chairmen/vice-chairmen for both houses.
• Salaries and allowances are fixed by the state legislature and charged on the Consolidated Fund of the State.

Speaker of Assembly

• Elected by the assembly from its members.
• Usually remains in office during the assembly's life unless:
  • Ceases to be a member.
  • Resigns (to Deputy Speaker).
  • Removed by a resolution passed by a majority of all members (effective majority) after 14 days' notice.
• Powers and Duties:
  • Maintains order and decorum.
  • Final interpreter of Constitution, rules, and legislative precedents.
  • Adjourns assembly/suspends meeting (absence of quorum).
  • Does not vote in the first instance but exercises a casting vote in case of a tie.
  • Can allow a 'secret' sitting.
  • Decides whether a bill is a Money Bill (final decision).
  • Decides disqualification questions (defection).
  • Appoints committee chairmen and supervises committees. Chairmen of Business Advisory Committee, Rules Committee, and General Purpose Committee.

Deputy Speaker of Assembly

• Elected by the assembly.
• Similar to the Speaker regarding term and vacation of office.
• Performs Speaker's duties when the office is vacant or when the Speaker is absent.
• The Speaker nominates a panel of chairman.

Chairman of Council

• Elected by the council.
• Vacates office like speaker.

Deputy Chairman of Council

• Elected by the council
• vacates office like the chairman.

Sessions of State Legislature

• Summoning: Governor summons each House.
• Maximum gap: Six months between two sessions.
• Session: Consists of many sittings.
• Adjournment: Suspends work for a specified time (hours, days, weeks).
• Adjournment Sine Die: Terminates sitting for an indefinite period. Power lies with the presiding officer.
• Prorogation: The presiding officer declares the House adjourned sine die, the Governor issues a notification for prorogation. It terminates a session.
• Dissolution: Only Legislative Assembly (not Council) is subject to dissolution. Ends the life of the House. A new House is constituted after general elections.
• Lapsing of Bills on Dissolution of Assembly:
  • Pending in assembly: Lapses.
  • Passed by assembly, pending in council: Lapses.
  • Pending in council, not passed by assembly: Does not lapse.
  • Passed by the assembly or both houses, pending Governor/President assent: Does not lapse.
  • Passed by assembly or both houses, returned by President for reconsideration: Does not lapse.
• Quorum:
  • Minimum members required to conduct business.
  • Ten members or one-tenth of the total membership, whichever is greater.
  • If no quorum, presiding officer adjourns or suspends.
• Voting in House:
  • Decided by a majority of votes of members present and voting (excluding the presiding officer).
  • Few matters require effective/special majority.
  • The presiding officer does not vote in the first instance, but exercises a casting vote in the case of an equality of votes.
• Language in State Legislature:
  • Official language(s) of the state, Hindi, or English.
  • Presiding officer can permit members to use their mother tongue.
  • The State legislature is authorized to decide whether to continue or discontinue English as a floor language after fifteen years from the commencement of the Constitution

Rights of Ministers and Advocate General

• Right to speak and participate in either House or its committees without voting rights.
• Constitutional basis:
  • A minister can participate in the proceedings of a House of which he/she is not a member.
  • A minister, who is not a member of either House, can participate in the proceedings of both the Houses.

Legislative Procedure in State Legislature

Ordinary Bills

• Originating House: Can originate in either House (bicameral legislature). Introduced by a minister or any member. Passes through three stages: first reading, second reading, and third reading.
• Second House: Transmitted to the other House for consideration and passage. Bill deemed passed only when both Houses agree. In unicameral legislatures, a bill is sent directly to the governor after passage in the assembly.
• The bill passes through all the three stages.

Legislative Assembly vs. Legislative Council for Bill Passage

• If the legislative assembly sends a bill to the legislative council, the legislative council has 4 alternatives:

1. it may pass the bill as sent by the assembly (i.e., without amendments);
2. it may pass the bill with amendments and return it to the assembly for reconsideration;
3. it may reject the bill altogether; and
4. it may not take any action and thus keep the bill pending.

• If the council passes the bill without amendments or the assembly accepts the amendments suggested by the council, the bill is deemed to have been passed by both the Houses and the same is sent to the the governor for his/her assent.
• If the assembly rejects the amendments suggested by the council or the council rejects the bill altogether or the council does not take any action for three months, then the assembly may pass the bill again and transmit the same to the council.
• If the council rejects the bill again or passes the bill with amendments not acceptable to the assembly or does not pass the bill within one month, then the bill is deemed to have been passed by both the Houses in the form in which it was passed by the assembly for the second time.
• The ultimate power of passing an ordinary bill is vested in the assembly.
• Constitution does not provide for the mechanism of joint sitting of both the Houses to resolve the disagreement between the two Houses over a bill.
• When a bill, which has originated in the council and was sent to the assembly, is rejected by the assembly, the bill ends and becomes dead.
• The council has much lesser significance, position and authority than that of the Rajya Sabha at the Centre.

Assent of the Governor

• After passage in the assembly or both houses, presented to the governor for assent.
• Four alternatives:
  • Give assent
  • Withhold assent (bill ends)
  • Return for reconsideration (suspensive veto)
  • Reserve for the President's consideration
• If returned, and the bill is passed again with or without amendments, the governor must give assent.

Assent of the President

• When a bill is reserved by the governor for the consideration of the President, the President may either give his/her assent to the bill or withhold his/her assent to the bill or return the bill for reconsideration of the House or Houses of the state legislature.
• Not mentioned in the Constitution whether it is obligatory on the part of the president to give his/her assent to such a bill or not.

Money Bills

• Special procedure outlined in Constitution.
• Cannot be introduced in the legislative council; can be introduced in the legislative assembly only with governor's recommendation.
• Legislative council has restricted powers: cannot reject or amend.
• Can make recommendations (within 14 days).
• Legislative assembly can accept/reject recommendations.
• Legislative council can detain a money bill for 14 days.
• When a money bill is presented to the governor, he/she may either give his/her assent, withhold his/her assent or reserve the bill for presidential assent but cannot return the bill for reconsideration of the state legislature.

Bills Reserved for President's Consideration

• Sarkaria Commission's Classification (Centre-State Relations):
  1. Must be reserved:
     • Derogate from High Court powers
     • Relate to taxes on water/electricity (Article 288)
     • Fall within Article 360 (financial emergency)
  2. May be reserved (for specific purposes):
     • To secure immunity from Articles 14 & 19 (for acquisition of estates (Article 31A)/ giving effect to certain Directive Principles of State Policy (Article 31C)).
     • Relating to a subject enumerated in the Concurrent List.
     • Imposing restrictions on trade/commerce requiring prior Presidential sanction.
  3. May be reserved (under Article 200):
     • Do not specifically fall under any of the above categories.

Position of Legislative Council (Compared to Assembly)

• Equal:
  • Introduction/passage of ordinary bills (though the assembly prevails in disagreement).
  • Approval of ordinances.
  • Selection of ministers (responsible to assembly).
  • Consideration of reports of constitutional bodies.
  • Enlargement of jurisdiction of the state public service commission.
• Unequal:
  • Money Bill introduced only in assembly.
  • The council cannot amend or reject a money bill.
  • Final power to decide a Money Bill lies with the Speaker of the Assembly.
  • Final power to pass ordinary bills lies with assembly. Council only a dilatory/advisory body.
  • The council cannot vote on demands for grants.
  • The council cannot remove ministers (responsible to assembly), but it can discuss/criticize.
  • If a bill originated in the council is rejected by assembly, it ends.
  • The council does not participate in presidential elections or election of representatives to the Rajya Sabha.
  • The council has no effective say in the ratification of a constitutional amendment bill.
  • Existence depends on the will of the assembly. The council can be abolished by the Parliament on the recommendation of the assembly.

Privileges of State Legislature

• Special rights, immunities, and exemptions for Houses, committees, and members.
• Necessary for independence and effectiveness.
• Do not extend to the Governor.

Collective Privileges

• Right to publish reports/proceedings (and prohibit others) and to hold secret sittings.
• Can exclude strangers from proceedings.
• Make rules for procedure and conduct of business.
• Punish members/outsiders for breach of privilege/contempt.
• Right to immediate information about the arrest/detention/conviction/imprisonment/release of a member.
• Institute inquiries and order witness attendance.
• Courts cannot inquire into proceedings.
• No arrest/legal process within the precincts without permission.

Individual Privileges

• Cannot be arrested during the session and 40 days before/after (civil cases only).
• Freedom of speech.
• Exempted from jury service.
• Can refuse to give evidence/appear as a witness during session.