State legislature ~ UPSC Polity Notes

Articles (168 to 212)

The Constitution provides for a Legislature for every State. However the question as to whether the State Legislature shall be unicameral (having one House only) or bicameral (having two Houses), is left for each State to decide for itself.

Constitution Of The State Legislature (Article 168)

Article 168 provides that where there are two Houses of the Legislature one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly,

Creation and Abolition of the Legislative Council (Article 169):

Article 169 contains provisions for the creation of the Legislative Council if the State Legislature does not have a Council and also for the abolition of the Council if it exists. The procedure is the same for both, the creation as well as abolition of the Legislative Council.
Article 169(1) empowers Parliament to make a law for the purpose. However, Parliament shall make a law for this purpose only on receiving a resolution of the Legislative Assembly of the State to that effect, passed by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
A law enacted by Parliament under Article 169(1) shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

Composition of Legislative Council:

The Legislative Council, commonly known as Vidhan Parishad, is the House of the State Legislature. If created under Article 169, it is instituted, as a permanent House, in the following manner.

Article 171(1) provides that the total number of members in the legislative Council of a State shall not exceed one-third of the total number members in the Legislative Assembly of that State, but not less than 40 members in any case.

The composition of the Legislative Council shall be provided, by law, by Parliament. Until so provided, the Council shall be constituted as provided in clause (3) of article 171.

One-third of the MLCs are elected by the state’s MLAs,
Another 1/3rd by a special electorate comprising sitting members of local governments such as municipalities and district boards,
1/12th by an electorate of teachers and another 1/12th by registered graduates.
The remaining members are appointed by the Governor for distinguished services in various fields namely, literature, science, art, cooperative movement and social service.

Significance of Legislative Council:

Institution of Checks & Balance A second chamber in states acts as an institution of checks and balances on every Bill as it prohibits hasty, defective, careless & ill- considered legislation made by the assembly by making provision for revision and thought.
Ensures Diverse Representation by facilitating representation of professionals and experts who cannot face direct elections. The governor nominates one-sixth members of the council to provide representation to such people.
Prevent autocracy: It puts a check on autocratic tendencies of the lower chambers.
Reduce workload of legislative assembly: Legislative council lessens the burden of the lower House and enables assembly to fully concentrate on measures of greater importance.

Illustration: The ruling party in Karnataka was worried to get more seats in the Legislative council during the election because of the fear of non-passing of the anti-conversion bill in council. This shows the Council keeps a check on hasty legislation.

Criticism:

Superfluous and Mischievous: If a majority of the members in the upper house belong to the same party which holds majority in the lower house, the upper house will become a mere ditto chamber.
Not an Effective Check: Whether a Bill is approved by the Council or not, assembly can still go ahead after four months.
Vested Interests: Legislative Council serves only as a stronghold of vested interests of people, who are not interested in legislation.
Backdoor Entrance of the Defeated Members: Legislative Council can be utilised to accommodate discredited party-men who may not be returned to the Assemblies.
Expensive Institution: It is expensive and a big drain on the State’s exchequer.

Illustration: The Andhra Pradesh Cabinet decided to abolish the legislative council. Because the contentious capital decentralisation bill has been blocked by Telegu Desam party who is in majority in Council. Thus, it looks like an unwanted child in Andhra Pradesh.

The parliamentary committee advocated for the evolution of a national policy for creation/abolition of Legislative Councils. It said, ‘The status of Second Chamber cannot be of temporary nature depending on the mood of the Government of the day nor can be abolished once created, only at the whims and fancy of a newly elected Government in the State.’

Legislative Assembly (Article 170):

The Legislative Assembly, commonly known as Vidhan Sabha, or the lower House of the State Legislature, is elected directly by people in the State, on the basis of the system of adult franchise, for a period of 5 years.
Article 170(1) provides that the Legislative Assembly of each State shall consist of not more than 500 and not less than 60 members.
For electing the members, the State is divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, same throughout the State. It is required with the object of maintaining uniformity in the scale of representation of the different constituencies.
The Constitution provides for the reservation of seats in the Legislative assemblies of the States for the Scheduled Castes and the Scheduled Tribes.

Duration of House of State Legislature

Legislative Assembly [Article 172(1)]:

Article 172(1) provides that a Legislative Assembly shall continue for five years from the date appointed for its first meeting. The Legislative Assembly may, however, be dissolved by the Governor under Article 174(2) (b) before the expiration of its term of five years. The expiration of its term of five years operates as dissolution of the Assembly.
The term of five years of the Assembly may be extended by Parliament by law, during the operation in force of a Proclamation of Emergency made under Article 352.

Legislative Council (Article 172 (2))

Article 172(2) provides that the Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of its members shall retire every second year in accordance with the provisions made by Parliament, by law. Though, the Council cannot be dissolved by the Governor as is the case with the Legislative Assembly, but the Council can be abolished by Parliament, by law, made under Article 169.

Qualification for Membership of State Legislature (Article 173):

A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he –

is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Council, not less than thirty years of age; and
possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Disqualification for Membership of State Legislature (Article 191):

1. A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State –

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation: For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

2.A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

Decision on Question as to Disqualifications of Members (Article 192):

Clause (1) of 192 provides: “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 in Clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final”.
However, Clause (2) requires that the Governor, before giving any decision on any such question, is required to obtain the opinion of the Election Commission and to act according to such opinion.
As to disqualifications on the ground of defection, Para 6 of the 10th Schedule provides that the question shall be referred to the Presiding Officer of the House, whose decision shall be final.
Article 192 is applicable only to disqualifications to which a member becomes subject after he is elected as such. As regards the disqualifications which arose long before his election, neither the Governor nor the Election Commission, has jurisdiction under Article 192.
Such a matter can only be raised in an election petition before the Court.