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State Legislature and Parliamentary Procedures
State Legislature and Parliamentary Procedures
KALYANI BAPAT
[email protected]
Legislative STATE
Governor
Assembly LEGISLATURE
Legislative
Council
LEGISLATIVE ASSEMBLY (VIDHAN SABHA)
• STRENGTH of LA – directly elected – maximum
strength fixed at 500 and minimum at 60
• Arunachal Pradesh, Sikkim, Goa – minimum 30
• Mizoram, Nagaland – minimum 40 & 46 resp.
• Total no. of seats in assembly of each state –
based on 1971 census
• Division of state into territorial constituency –
based on 2001 census
• Reservation of seats for SC & ST – would be
based on the population of the State
ARTICLE 169 - CREATION AND ABOLITION
OF LEGISLATIVE COUNCIL
• The Parliament can abolish a Legislative Council (where it already exists) or create it (where
it does not exist) by a simple majority, that is, a majority of the members of each House present and
voting, if the legislative assembly of the concerned state, by a special majority, passes a resolution to
that effect.
• Special majority implies
• A majority of the total membership of the assembly and
• A majority of not less than two-thirds of the members of the assembly present and voting.
LEGISLATIVE COUNCIL (VIDHAN PARISHAD)
ARTICLE 171
Indirect elections
STRENGTH – maximum is 1/3rd of the Legislative assembly – minimum 40
Actual strength of the Council is fixed by Parliament – even though max-minimum ihas been
fixed by Constitution
Manner of election –
o 1/3rd are elected by members of Local bodies in the State like Municipalities, District boards,
etc
o 1/12th are elected by graduates of 3 year standing and residing within the state for 3 yrs
o 1/12th are elected by teachers of 3 year standing in the state, not lower in standard than
Secondry School
o 1/3rd are elected by members of legis assembly of the state from amongst the persons who
are not members of the assembly
o The remaining are nominated by the GUV from amongst the persons who have special
knowledge (1/6th)
5/6th of the total member of the LC are indirectly elected and 1/6th is nominated
DURATION OF THE COUNCIL
• It can ensure individuals who might not be • It can delay legislation, also it is considered a
cut out for the elections are able to contribute burden on the state budget.
to the legislative process (like artists,
• It can also be used to park leaders who have
scientists, etc).
not been able to win an election.
• It can keep an eye on hasty decisions taken
by the Legislative Assembly.
COMPARISON BETWEEN RAJYA SABHA & L. COUNCIL
LEGISLATIVE
BUSINESS, HALF AN
ZERO HOUR (11-12 QUESTION HOUR (12-
BREAK (1-2 PM) HOUR DISCUSSION,
PM) 1 PM)
SHORT DURATION
DISCUSSION (2-6PM)
Money Bill
(Article 110 *
Financial Bill I &
* II (Article 117 [1],
Article 117[3])
Constitutional
Amendment Bill
(Article 368)
*
ARTICLE 110
ARTICLE 117
a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of (1) A Bill or amendment making provision
the following matters, namely :— for any of the matters specified in sub-
clauses (a) to (f) of clause (1) of article 110
(a) the imposition, abolition, remission, alteration or regulation of any tax; shall not be introduced or moved except on
the recommendation of the President and a
(b) the regulation of the borrowing of money or the giving of any guarantee by the Bill making such provision shall not be
Government of India, or the amendment of the law with respect to any financial obligations introduced in the Council of States:
undertaken or to be undertaken by the Government of India;
Provided that no recommendation shall be
(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of required under this clause for the moving of
moneys into or the withdrawal of moneys from any such Fund; an amendment making provision for the
reduction or abolition of any tax.
(d) the appropriation of moneys out of the Consolidated Fund of India;
(2) A Bill or amendment shall not be
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of
deemed to make provision for any of the
India or the increasing of the amount of any such expenditure;
matters aforesaid by reason only that it
(f) the receipt of money on account of the Consolidated Fund of India or the public account of provides for the imposition of fines or other
India or the custody or issue of such money or the audit of the accounts of the Union or of a pecuniary penalties, or for the demand or
State; or payment of fees for licences or fees for
services rendered, or by reason that it
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f). provides for the imposition, abolition,
remission, alteration or regulation of any
(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the tax by any local authority or body for local
imposition of fines or other pecuniary penalties, or for the demand or payment of fees for purposes.
licences or fees for services rendered, or by reason that it provides for the imposition, abolition,
remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) A Bill which, if enacted and brought into
operation, would involve expenditure from
(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the
House of the People thereon shall be final. the Consolidated Fund of India shall not be
passed by either House of Parliament
(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States unless the President has recommended to
under article 109, and when it is presented to the President for assent under article 111, the that House the consideration of the Bill.
certificate of the Speaker of the House of the People signed by him that it is a Money Bill.
These are the most critical and integral This fund was established by the The Public Account of India keeps track of flows
Consolidated Fund of India
The President's recommendation is The President's recommendation is The President's approval is not required
required to introduce this bill. required to introduce this bill. to introduce this bill.
No
Privilege
Confidence
motion
motion
Adjournment
motion
RULES OF BUSINESS – ART 77
• (3) The President shall make rules for the more convenient
transaction of the business of the Government of India, and
for the allocation among Ministers of the said business.
CHIEF ELECTION COMMISSIONER V. JAN CHAUKIDAR [2013]
• In 2004, a Public Interest Petition was filed in Patna High Court, by Jan Chaukidar, an NGO, in wake of several malpractices in elections
reported in Bihar. The Patna High Court in its ruling debarred all those people who are in lawful police custody and serving jail terms, from
voting, or contesting election for parliament or state assemblies, even if they are enrolled as voters
• The Hon’ble High Court ruled that the qualification for membership of the House of People, under section 4(d) of Representation of People
Act, requires that a candidate has to be an elector. An elector is a person, who is legally entitled to vote. However, under section 62(5) of
Representation of People Act, lays down that right to vote is not available to a prisoner, except a person under preventive detention. Thus, all
prisoners who are not under preventive detention can neither vote nor can they contest elections.
• This verdict was challenged by Chief Election Commissioner and others in the Supreme Court.
• HELD : upheld the verdict of Patna High Court. It was pointed out that section 62(5), clearly lays down that any person, who is under the
lawful custody of the police, or under the sentence of imprisonment or transportation or otherwise, is not allowed to vote, and since the
person does not qualify as an elector, he cannot stand as a candidate for election to the House. The Hon’ble Supreme Court further clarified
that this does not apply to people who are held under preventive detention.
• The ruling was followed by a quick reaction by the legislature :
• Representation of People (Amendment and Validation Act) 2013 was passed within three months. The bill received the President’s assent on 23rd September
2013. It amended section 7, 62 and 43 of the 1951 Act. The major amendment by this act was that of section 62, which is
• In Section 62 of the Principal Act, after the proviso to sub-section (5), the following proviso shall be inserted, namely:—
• “Provided further that by reason of the prohibition to vote under this subsection, a person whose name has been entered in the electoral roll shall not
cease to be an elector.”
• Section 4 of the amendment introduces the retrospective effect. It made the act to be applicable from 10th of July, thus totally nullifying the Supreme
Court’s ruling.
• Hence, in the present day, a person is entitled to vote as well as stand for election as long as his name is in the electoral roll.
• https://www.lawctopus.com/academike/jan-chaukidar-corrective-step-nullified/
JAYA BACCHAN V. UNION OF INDIA [2006]
• The court held that the Chairperson of the Film Development Council of a state holds an office of
profit as some pecuniary gain is receivable by virtue of the post even though the said pecuniary gain
may not actually be received. Here, the petitioner has sanctioned the rank of Cabinet Minister and
received a monthly honorarium, daily allowances, free accommodation, staff car, medical treatment
etc.
• The petitioner, however, neither received any payment nor did she use any facilities that she was
entitled to as the Chairperson. However, since the post was capable of yielding profit to the
petitioner, she held an office of profit. Two factors which emerged, in this case, were: a) the form of
payment is not relevant as monetary gain may be merely disguised as an honorarium; b) it is not
relevant whether any remuneration was actually received, it is only enough if such remuneration was
receivable.
• The Supreme Court in Jaya Bachchan case, held that “payment of honorarium, in addition to daily
allowances in the nature of compensatory allowances, rent-free accommodation and chauffeur driven
car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and
hence constitute profit”.
• Ms. Jaya Bachchan had been disqualified under Article 102(1)(a) of the Constitution for holding the
office of Chairperson of the U.P. Film Development Council on ground that the same was an “office of
profit” under the Government of Uttar Pradesh.
XTH SCHEDULE – ANTI DEFECTION LAW
• ‘Defection’ has been defined as, “To abandon a position or
association, often to join an opposing group”.
• The 10th Schedule of the Indian Constitution popularly referred to
as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment
(1985) to the Constitution.
• The anti-defection law was enacted to ensure that a party
member does not violate the mandate of the party and in case he
does so, he will lose his membership of the House.
• The law applies to both Parliament and state assemblies.
• The Anti-Defection Law aims to prevent MPs from switching
political parties for any personal motive.
GROUNDS FOR DISQUALIFICATION:
• If an elected member gives up his membership of a political party voluntarily.
• If he votes or abstains from voting in the House, contrary to any direction issued by his political party.
• If any member who is independently elected joins any party.
• If any nominated member joins any political party after the end of 6 months.
• The decision on disqualification questions on the ground of defection is referred to the Speaker or the
Chairman of the House, and his/her decision is final.
• All proceedings in relation to disqualification under this Schedule are considered to be proceedings in
Parliament or the Legislature of a state as is the case.
• EXCEPTIONS UNDER THE ANTI DEFECTION LAW
• In the situation where two-thirds of the legislators of a political party decide to merge into another
party, neither the members who decide to join nor the ones who stay with the original party will face
disqualification.
(i) the members must have become members of the party they have merged with/into, or
(ii) they should have not accepted the merger and choose to function as a separate group.
• Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits
that post.
DECIDING AUTHORITY??? IN XTH SCHEDULE
Any question regarding disqualification arising out of defection is to be decided by the presiding
officer of the House.
Originally, the Act provided that the presiding officer’s decision was final and could not be questioned in
any court of law. But, in Kihoto Hollohan case (1992), the Supreme Court declared this provision as
unconstitutional on the ground that it seeks to take away the jurisdiction of the SC and the high
courts.
The court held that while deciding a question under the 10th Schedule, the presiding officer should
function as a tribunal.
Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of
malafides, perversity, etc. But, the court rejected the argument that the vesting of adjudicatory powers
in the presiding officer is by itself invalid on the ground of political bias.
However, it held that there might not be any judicial intervention until the Presiding Officer gives his
order.
Eg : 2015 - when the Hyderabad High Court declined to intervene after hearing a petition which alleged
that there had been a delay by the Telangana Assembly Speaker in taking action against a member
under the anti-defection law.
KIHOTO HOLLOHON V. ZACHILLU - CONSTITUTIONAL
CHALLENGE TO ANTI-DEFECTION LAW WAS SETTLED
• The law dealing with powers of the Speaker and disqualification of lawmakers in deciding such matters became part of
constitution in 1985 with the adoption of Tenth Schedule or ‘anti-defection law’.
• Main question before the Supreme Court was whether powerful role provided to Speaker violated doctrine of basic structure.
• POWER OF SPEAKER UNDER THE TENTH SCHEDULE
Tenth Schedule also provides for sweeping discretionary powers of Speaker. It states, if a member of a House become subject to
disqualification, question will be referred for decision of the Chairman or Speaker of such House. In this regard, decision of the
Speaker shall be final.
• M. S. M. Sharma was a journalist and the editor of “Searchlight”—one of the well-known English daily
newspapers having a wide circulation in Bihar. Respondent Krishna Sinha was the “Chief Minister of Bihar and
the Chairman of the Privileges Committee of the Bihar Legislative Assembly.”
• Maheshwar Prasad Narayan Sinha, a member of the Bihar Legislative Assembly delivered a speech on the floor
of the Assembly described as “one of the bitterest attacks against the way the Chief Minister was conducting
the administration of the State.” He alleged that Mahesh Prasad Sinha guided the Chief Minister in the
selection of Ministers and the transfer of public servants, and he also alleged several instances of
encouragement of corruption by the Government
• Part of his speech were expunged
• a notice was served to the Petitioner calling upon him to show cause establishing “why appropriate action
should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of
the offending publication
• The Petitioner filed a writ petition under Article 32 of the Constitution in the Supreme Court of India
contending that the said notice and the proposed action of the Privileges Committee violated his fundamental
right to freedom of speech and expression under Article 19(1)(a) and the protection of his personal liberty
under Article 21 of the Constitution of India
• HELD THAT - the court directed that according to Article 194 clause (3) of the Indian constitution, the state
assembly of Bihar had equivalent privileges, powers, and immunities as compared to the house of common at
the dawn of the constitution. Consequently, the assembly possessed the power to interdict the applicant from
publishing any portion of proceedings that was by order of the speaker, to be obliterated
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