Position of Legislative Council of a State inferior to that of the Legislative Assembly
It has been clear that the position of Legislative Council is inferior to that of the Legislative Assembly so much so that it may well be considered as a surplusage.
The very composition of the Legislative Council, renders its position weak, being partly elected and partly nominated, and representing various interests.
Its very existence depends upon the will of theLegislative Assembly, because the latter has the power to pass a resolution for the abolition of the sec-ond Chamber by making an Act of Parliament. The Council of Ministers shall be responsibleonly to the Assembly.
The Council cannot reject or amend a MoneyBill. It can only withhold the Bill for a period not exceeding 14 days or make recommendations for amendments.
As regards ordinary legislation (i.e., with respect to Bills other than Money Bills), too, the position of the Council is nothing but subordinate to the Assembly, for it can at most interpose a delay of four months (in two journeys) in the passage of a Bill originating in the Assembly and, in case of disagreement, the Assembly will have its way without the concurrence of the Council.
In case of a Bill originating in the Council, onthe other hand, the Assembly has the power of rejecting and putting an end to the Bill forthwith.
It will thus be seen that the second Chamberin a State is not even a revising body like the second Chamber in the Union Parliament which can, by its dissent, bring about a deadlock, necessitating a joint sitting of both Houses to effect the passage of the bill (other than a Money Bill).
Nevertheless, by reason of its composition byindirect election and nomination of persons having special knowledge, the Legislative Council commands a better calibre and even by its dilatory power, it serves to check hasty legislation by bringing to light the shortcomings or defects of any ill-considered measures.
Privileges of a State Legislature
The powers, privileges and immunities of aState Legislature are very similar to those of the Union Parliament, as the provisions of the Constitution are identical.
A Bill pending in either House of the Legislature shall not lapse by reason of prorogation of the House or Houses. It follows, therefore, that a Bill which has been passed by both the Houses of the Legislature and is pending for Governor’s assent shall not lapse.
The House has an absolute privilege to prohibit the publication of its proceedings entirely or in parts.
Such part of the “proceedings” of the Houseas has been directed to be expunged does not form part of the “proceedings” of the House and the publication thereof in a newspaper without the authority of the House will constitute contempt. However, the power of the Legislature to pun-ish for contempt and the jurisdiction of the courts in this behalf are still the subject-matter of an animated nation-wide discussion.
Position and functions of the speaker in the State
The functions and position of the State Assembly Speakers and their counterpart in the Lok Sabha are identical.
The Speaker regulates the proceedings of the House;
presides over its meetings;
maintains order in its business;
has the final power to interpret Rules.
Any procedural irregularity committed by a Speaker and his conduct in regulating the procedure in the House are not subject to the jurisdiction of any court. Thus, the Speaker is the final arbiter of the proceedings in the House.
The Lok Sabha Speaker’s salary and allowances are charged on the Consolidated Fund of India.
The Speaker does not vote in the first instancebut he will have a casting vote in the event of a tie and can exercise it. Only a resolution passed by a special majorityin the House can remove the Speaker from office.
Speaker’s election does not need the consentor approval of the President/Governor. Thus, he is not subordinate to the chief executive.
The foregoing provisions seek to make theSpeaker’s office thoroughly impartial and independent.
The decision of the Speaker as to whether abill is a Money Bill is final. The position is similar at the Union and the States.
Speakers have been authorised to deal withdefections and their decisions on disqualification are final.
The Anti-Defection Act, 1985 now provides forthe final decision to be taken by the Speaker and proceedings of the House under this Act are protected from judicial review, in the same manner as all other proceedings of a legislature.
Provisions with regard to inconsistency between laws made by Parliament and laws made by the legislatures of states
Articles 251 and 254 declare the principle thatwhen a State law is in conflict with the law made by Parliament, the latter shall prevail.
In terms of Art. 251, the State Legislature canmake any law which, under the Indian Constitution, it has the power to make.
But, if any provision of a law so made is repugnant to any provision of a law made by Union Parliament (which Parliament has, under the authourity of Art. 249 or 250, the power to enact), the law made by Parliament—whether passed before or after the law made by the legislature of a State—shall prevail.
The law of the State shall, to the extent of repugnancy, remain inoperative, so long only as the law made by Parliament continues to remain in force and have effect.
Art. 254 further explains the inconsistencybetween a law made by Parliament and those made by the State Legislatures.
Qualifications and disqualifications for membership of the State Legislature
A person shall not be qualified to be chosento fill a seat in the Legislature of a State unless he
is a citizen of India;
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 maybe prescribed in the behalf by or under any law made by Parliament.
Thus, the Representation of the People Act,1951, has provided that a person shall not be elected either to the Legislative Assembly or the Council, unless he is himself an elector for any Legislative Assembly constituency in that State. A person shall be disqualified for being chosen as, and for being a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State, other than that of a Minister for the Indian Union or for a State or an office declared by a law of the State not to disqualify its holder (Many States have passed such laws declaring certain offices to be offices the holding of which will not disqualify its holder for being a member of the Legislature of that States); is of unsound mind as declared by a competent court; is an undischarged insolvent; is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgment of allegiance or adherence to a foreign State; is so disqualified by or under any law made byParliament; (in other words, the law of Parliament may disqualify a person for membership even of a State Legislature, on such grounds as may be laid down in such law).
Thus, the Representation of the People Act,1951, has laid down some grounds of disqualification, e.g., conviction by a court, having been found guilty of a corrupt or illegal practice in relation to election, being a director or managing agent of a corporation in which Government has a financial interest (under conditions laid down in that Act).
Art 192 lays down that if any question arisesas to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned above, the question shall be referred to the Governor of that State for decision who will act according to the opinion of Election Commission. His decision shall be final and not liable to be questioned in any court of law.
Relative positions of the two Houses of Parliament and of a State Legislature regarding Money Bills
As regards Money Bills, the position is similarat the Union and the States.
A Money Bill cannot originate in the SecondChamber or Upper House (i.e., the Council of States or the Legislative Council).
The Upper House has no power to amend orreject such Bills. In either case, the Council can only make recommendations when a Bill passed by the Lower House (i.e., the House of the People or the Legislative Assembly, as the case may be) is transmitted to it. It finally rests with the Lower House to accept or reject the recommendations made by the Upper House.
If the House of the People or the LegislativeAssembly (as the case may be) does not accept any of the recommendations, the Bill is deemed to have been passed by the Legislature in the form in which it was passed by the Lower House and then presented to the President or the Governor (as the case may be) for his assent. If the Lower House, on the other hand, accepts any of the recommendations of the Upper House, then the Bill shall be deemed to have been passed by the Legislature in the form in which it stands after acceptance of such recommendations. If the Upper House does not return the MoneyBill transmitted to it by the Lower House, within a period of 14 days from the date of its receipt, the Bill shall be deemed to have been passed by the Legislature, at the expiry of the period of 14 days, and then presented to the President or the Governor (as the case may be), even though the Upper House has not either given its assent or made any recommendation. There is no provision for resolving any deadlock between the two Houses, as regards Money Bills, because no deadlock can possibly arise. Whether in Parliament or in a State Legislature, the will of the Lower House shall prevail, in case the Upper House does not agree to the Bill as passed by the Lower House.
Relative positions of the two Houses of Parliament and of a State legislature regarding
Bills other than Money Bills Bills other than Money Bills may be introducedin either House of Parliament or of a State Legislature.
A Bill is deemed to have been passed by Parliament only if both Houses have agreed to the Bill in its original form or with amendments agreed to by both Houses. But the Legislative Council has no coordinate power, and in case of disagreement between the two Houses, the will of the Legislative Assembly shall ultimately prevail.
In case of disagreement between the twoHouses of Parliament, the deadlock may be resolved only by a joint sitting of the two Houses, if summoned by the President. But in the case of State Legislature, there is no provision for a joint sitting for resolving a deadlock between the two Houses.
While the period for passing a Bill receivedfrom the Lower House is six months in the case of the Council of States, it is three months only in the case of the Legislative Council.
In case of disagreement, a passing of the Bill by the House of the People, a second time, cannot override the Council of States. The only means of resolving the deadlock is a joint sitting of the two Houses. But if the President, in his discretion, does not summon a joint sitting, there is an end of the Bill and, thus, the Council of States has effective power, sub-ject to a joint sitting, of preventing the passing of Bill.
In case of such disagreement a passing of theBill by the Legislative Assembly for a second time is sufficient for the passing of the Bill by the Legislature, and if the Bill is so passed and transmitted to the Legislative Council again, the only thing that the Council may do is to with hold it for a period of one month from the date of its receipts of the Bill on its second journey. If the Council either rejects the Bill again, or proposes amendments not agreeable to the Assembly or allows one month to elapse without passing the Bill, the Bill shall be deemed to have been passed by the State Legislature in the form in which it is passed by the Assembly for the second time, with such amendments, if any, as have been made by the Council and as are agreed to by the Assembly.
The foregoing procedure applies only in thecase of disagreements relating to a Bill originating in the Legislative Assembly. In case of a Bill originating in the Legislative Council and transmitted to the Legislative Assembly after its passage in the Council, if the Legislative Assembly either rejects the Bill or makes amendments which are not agreed to by the Council, there is an immediate end of the Bill, and no question of its passage by the Assembly would arise.