State Legislature | Constitutional Law - CLAT PG PDF Download

Introduction

The distribution of executive power between the Union and State governments in India is a crucial aspect of the country's federal structure. This division ensures that both levels of government can effectively manage their respective responsibilities, with the Union government focusing on national and international matters, while State governments handle local and regional issues.

 Union and State Executive Powers 

•  Union Government:  Responsible for national defense, foreign affairs, and other central matters.
•  State Governments:  Handle internal security, public health, education, and other state-specific issues.

 State Legislatures 

Each State in India has its own legislature, which can be either unicameral or bicameral:

•  Unicameral Legislature: 
  • Consists of a single house called the  State Legislative Assembly (Vidhan Sabha)  .
  • This assembly is similar to the Lok Sabha at the national level.
•  Bicameral Legislature: 
  • Comprises two houses:
    •  State Legislative Assembly (Vidhan Sabha)  (lower house, similar to the Lok Sabha).
    •  State Legislative Council (Vidhan Parishad)  (upper house, similar to the Rajya Sabha).

 Creation and Abolition of Legislative Councils 

• The Parliament can  abolish an existing Legislative Council  or  create a new one  by law.
•  Proposal Support:  The proposal must be backed by a resolution from the concerned Legislative Assembly.

Article 168 - Constitution of Legislatures in States

Article 168 of the Indian Constitution pertains to the establishment of legislatures in the states of India. It outlines the structure and composition of the legislature in each state, along with the role of the Governor.

 Key Provisions of Article 168 

•  Legislature Composition:  Every state in India is required to have a legislature, which includes the Governor and either one or two houses, depending on the state.
•  Bicameral vs. Unicameral: 
  •  Bicameral:  States like Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, and Uttar Pradesh have two houses: the Legislative Council and the Legislative Assembly.
  •  Unicameral:  In other states, there is only one house, known as the Legislative Assembly.
•  Types of Legislatures: 
  •  Legislative Council:  The upper house in bicameral states.
  •  Legislative Assembly:  The lower house in bicameral states and the only house in unicameral states.

Article 169 - Abolition or Creation of Legislative Councils in States

Article 169 of the Indian Constitution deals with the abolition or creation of Legislative Councils in States. Here's a simplified explanation:

 1. Abolition or Creation of Legislative Councils 

• Parliament can  abolish  a State's Legislative Council or  create  one in a State that doesn’t have it.
• This can happen if the  State Legislative Assembly  passes a resolution by a  majority  of its total members and a  two-thirds majority  of those present and voting.

 2. Provisions for Constitutional Amendment 

• Any law made under this article must include provisions to amend the Constitution as necessary and may contain additional provisions deemed necessary by Parliament.

 3. Not an Amendment of the Constitution 

• Such laws are not considered amendments to the Constitution under Article 368.

 4. Bicameral and Unicameral Legislatures 

• As per Article 168, States with  bicameral legislatures  have both a Legislative Council and a Legislative Assembly.
• States with  unicameral legislatures  only have a Legislative Assembly.

 5. Empowerment of States 

• Article 169 empowers States with bicameral legislatures to abolish their Legislative Councils and gives States with unicameral legislatures the right to create a Legislative Council.
• The resolution for abolition or creation must come from the  Lower House  of the State.

 6. Legislative Process 

• The process involves a resolution passed by the Lower House of the State  recommending either abolition or creation  of the Legislative Council.

 7. Supplemental Provisions 

• Parliament may include  supplemental, incidental, and consequential provisions  as deemed necessary to give effect to the law.

 8. Distinction from Article 368 

• Unlike amendments under Article 368, the laws made under Article 169 do not alter the Constitution itself.

 Article 170: Composition of the Legislative Assemblies 

 Introduction 

• Article 170 of the Indian Constitution deals with the composition of the  Legislative Assemblies  in the states.

 Key Provisions 

• The Legislative Assembly of each state  must  have  between 60 and 500 members  .
• Members are chosen by  direct election  from  territorial constituencies  within the state.
• Each state is divided into  constituencies  so that the ratio of  population to seats  is roughly the same across the state.
• The  population  used for this purpose is based on the last  published census  .
• After each census, the number of seats and the boundaries of constituencies may be  readjusted  by law, but this does not affect the current Assembly until it is dissolved.
• Readjustments will take effect from a date specified by the  President  .
• Until the census figures after the year  2000  are published, readjustments are not necessary.

Article 171: Composition of the Legislative Councils

 (1)  The total number of members in the Legislative Council of a State shall not exceed  one-third  of the total number of members in the Legislative Assembly of that State. However, the total number of members in the Legislative Council shall not be less than  forty  .

 (2)  Until Parliament by law provides otherwise, the composition of the Legislative Council of a State shall be as specified in clause (3).

 (3)  Of the total number of members in the Legislative Council of a State:

 (a)  Approximately  one-third  shall be elected by electorates consisting of members of municipalities, district boards, and other local authorities in the State as specified by Parliament.

 (b)  Approximately  one-twelfth  shall be elected by electorates consisting of persons residing in the State who have been graduates of any Indian university or possess equivalent qualifications for at least three years.

 (c)  Approximately  one-twelfth  shall be elected by electorates consisting of persons engaged in teaching in prescribed educational institutions in the State for at least three years.

 (d)  Approximately  one-third  shall be elected by the members of the Legislative Assembly of the State from among persons who are not members of the Assembly.

 (e)  The remainder shall be  nominated by the Governor  as per the provisions of clause (5).

 (4) 

The members to be elected under sub-clauses (a), (b), and (c) of clause (3) shall be chosen in  territorial constituencies  prescribed by law made by Parliament. Elections under these sub-clauses and sub-clause (d) shall be held using the  proportional representation  system with the single transferable vote.

 (5) 

The members nominated by the Governor under sub-clause (e) of clause (3) shall have special knowledge or practical experience in areas such as  literature  ,  science  ,  art  ,  cooperative movement  , and  social service  .

 Key Points: 

• The composition of the Legislative Council is determined by the  Constitution  , with specific provisions for election and nomination of members.
• The maximum and minimum limits for the total number of members in the Legislative Council are set by the Constitution and cannot be changed without  amendment  .
• The composition can be varied by  Parliamentary law  , including methods of election and nomination.
• Members are elected from various constituencies, including local authorities, graduates, teachers, and by the Legislative Assembly.
• The Governor nominates members with expertise in specific fields.

Duration of State Legislatures (Article 172)

•  Legislative Assembly 
  • Every State's Legislative Assembly, unless dissolved earlier, lasts for five years from its first meeting.
  • The Assembly dissolves automatically at the end of this five-year period.
  • During a Proclamation of Emergency, Parliament can extend this period by law, but only for one year at a time and not beyond six months after the Emergency ends.
•  Legislative Council 
  • A State's Legislative Council is not dissolved but has a rotating membership.
  • Approximately one-third of its members retire every two years, as regulated by Parliament.

 Key Points 

• The  Legislative Assembly  serves a term of five years but can be dissolved earlier.
• The  Legislative Council  is a continuous body with staggered retirements.
• During an  Emergency  , the Assembly's term can be extended.
• The  first sitting  date, not the constitution date, marks the start of the term.
• The Legislative Council is not subject to dissolution.
• In a bicameral legislature, only the Legislative Assembly can be dissolved.

Article 173 - Qualification for Membership of State Legislature

 Eligibility Criteria for State Legislature Membership 

• A person must be a citizen of India and take an oath to the Constitution.
• The individual must be at least 25 years old for the Legislative Assembly and 30 years old for the Legislative Council.
• Additional qualifications, if any, must be as prescribed by law.

 Constitutional Background 

• Article 173 is similar to Article 84 for the Union Parliament.
• The Constitution (Sixteenth Amendment) Act, 1963, revised sub-clause (a) of Article 173 to emphasize the oath-taking requirement.

 Oath or Affirmation Requirements 

• Candidates must take the oath after nomination but before the scrutiny of nomination papers.
• If the oath is not taken on time, the nomination papers may be rejected.

 Purpose of Article 173(a) 

• The article ensures that candidates for the State Legislature commit to upholding the Constitution and the integrity of India.
• Once the oath is taken for one constituency, it applies even if the candidate is elected from a different constituency.

 Importance of Oath in Election Process 

• The oath requirement is mandatory, as per the Representation of the People Act (1951).
• The Returning Officer must verify the candidate's qualifications during the scrutiny of nominations.

 Burden of Proof in Age Qualification Challenges 

• If a candidate's age qualification under Article 173 is challenged, the responsibility to prove the claim lies with the petitioner.

 Electorate and Disqualifications for Legislative Assembly Candidates 

• To contest in a State Legislative Assembly election, a person must be an elector in any assembly constituency within that State.
• The individual must not be subject to any disqualifications specified in Section 16 of the Representation of the People Act, 1950, or those outlined in Chapter III of the Act.
• Notably, the condition of being ordinarily resident in a constituency, as mentioned in Section 19 of the Act of 1950, is not a requirement under Article 173 of the Constitution.

Article 174 - Sessions of the State Legislature, Prorogation, and Dissolution

 Summoning of the Legislature 

• The Governor has the authority to summon either or both Houses of the State Legislature to meet at times and places deemed appropriate.
• However, there must be a gap of no more than six months between the last sitting of one session and the first sitting of the next.

 Prorogation and Dissolution 

• The Governor can prorogue either or both Houses of the Legislature at will.
• The Governor also has the power to dissolve the Legislative Assembly, but this is done on the advice of the Council of Ministers.

 Prorogation Explained 

• Prorogation refers to the discontinuation of a session of Parliament or State Legislature by the President or the Governor, respectively.
• It marks the end of the session but does not affect the continuation of the House itself.

 Dissolution Explained 

• Dissolution is the termination of the existence of the House, which can occur in two ways:
•  Ordinary Dissolution:  This happens at the end of the tenure of the House, typically five years after its first meeting, unless it is dissolved earlier.
•  Premature Dissolution:  This can occur under specific circumstances, such as:
• When the House passes a resolution for its own dissolution, or
• When the President of India dissolves the Lok Sabha on the advice of the Prime Minister.

 Governor's Powers and Responsibilities 

• The Governor has significant powers regarding the sessions of the State Legislature, including the ability to summon, prorogue, and dissolve the Legislative Assembly.
• While the Governor has the discretion to call sessions, they are generally expected to act on the advice of the Council of Ministers, especially regarding dissolution.
• In cases where the President takes over governmental powers under Article 356(1), the Council of Ministers' advice to the Governor may be overridden.

 Key Powers of the Governor 

•  Summon Sessions:  The Governor can summon either or both Houses of the State Legislature to meet at their discretion, ensuring that no more than six months elapse between sessions.
•  Prorogue Sessions:  The Governor has the authority to prorogue (discontinue) the sessions of either or both Houses.
•  Dissolve the Legislative Assembly:  The Governor can dissolve the Legislative Assembly, typically on the advice of the Council of Ministers.

 Discretion and Advice 

• The Governor generally acts on the advice of the Council of Ministers, especially regarding the dissolution of the Legislative Assembly.
• However, if the President assumes control under Article 356(1), the Governor's discretion may override the Council of Ministers' advice.