Union & State Legislature(Part - 1) - Polity and constitution,UPSC,IAS. | Polity and Constitution (Prelims) by IAS Masters PDF Download

Union & State Legislature

Chapter - 9

Indian Parliament

Article 79: Constitution of the Parliament

• There shall be a Parliament for the Union which shall consist of the President and the two Houses to be known respectively as the Council of States (the Rajya Sabha) and the House of the People (the Lok Sabha),

• Though the President is not a member of either House of the Parliament, yet like the British crown, he is an integral part of the Parliament and performs certain functions relating to its proceedings.
Functions of the Parliament

• The most important function of the Parliament is to legislate i.e. make legislations for the development which benefits the society.

• The second most important function is to exercise control over the Executive.
• The Parliament provides the Council of Ministers as the Ministers are the Members of the Parliament.

• It has financial control over the Executive. The Parliament is the sole authority to raise taxes.

• It provides an opportunity to deliberate on various policies and measures before their implementation. Thus, the Parliament is also an authoritative source of information, collected and disseminated through the debates and through the specific medium of 'Questions' to the Ministers.

                            The Rajya Sabha or the Council of States                     .

• The Rajya Sabha consists of two categories of members—elected and nominated—who
are members for a period of six years. They are indirectly elected by the members of the State legislatures.

The election is scheduled in such a way that one-third of its members retire every two years.

The Rajya Sabha represents the federal character of the Constitution in the Parliament.

Article 80: The Council of States shall consist of-

• 12 members are nominated by the President from people having special knowledge or experience in literature, science, art or social services. 
• Representatives of States are elected by the elected members of the Legislative Assembly of the State in accordance with system of proportional representation by means of single transferable vote.
• Representatives of Union Territories are indirectly elected by members of an electoral college for that territory in accordance with system of proportional representation.

At present, the strength of the Rajya Sabha is 245, of which 233 are elected and 12 are nominated.
Qualifications for the Membership of Rajya Sabha

Following are the qualifications needed to be elected to the Rajya Sabha:

• the person must be a citizen of India;

• the person must not be below the age of 30 years;

• he must be an ordinary citizen registered voter in the State or Union Territory from where he is intended to be chosen.

• He should not hold any office of profit.
Federal Features of the Rajya Sabha

• Under Art. 249. The Council of States or the Rajya Sabha is empowered to declare by a resolution can be initiated only in the Rajya Sabha.

•Art 312 empowers the Rajya Sabha to declare a resolution, supported by not less than two- third members present and voting, that it is necessary in the national interest, that the parliament should create one or more All India Service common to the Union and the States and also to regulate the recruitment and conditions of the service of persons appointed to such services (the Lok Sabha can not initiate the process).

• In case of Constitutional Amendment Bill, it must be passed by the Rajya Sabha separately. There is no provision for a joint sitting to pass such Bills.

• The members of the Rajya Sabha participate in the election of the President. For the impeachment of the President, a resolution to this effect must have the approval of not less than two-third members of the Rajya Sabha separately.

• In cases of declaration of emergencies under Article 352 and Article 356 by the President (who, in fact, proclaims them on the advice of the Council of Ministers), such declarations must be approved by the Rajya Sabha within a period of one month and two months respectively after such declarations

Utility of the Rajya Sabha

It is said that in a Federal Constitution the second chamber is a necessity. It plays an important role in the matters of legislation and therefore it should be retained. The Rajya Sabha is desirable because it fulfils the following purposes:

1. It is considered useful because the senior politicians and the easy access to it without undergoing the ordeal of contesting general elections. So, the experience and the talent are not lost to the country and their services are utilised.
   2. The Rajya Sabha acts as a revising House over the Lok Sabha which, being a popular House may be tempted to act rather hastily keeping in view the public opinion.
   3. The Rajya Sabha is a House where the States are represented, keeping with the federal principles.

Officers of the Rajya Sabha

• Chairman: The Vice-President of India is the ex-officio chairman of the Rajya Sabha. He presides oyer the proceedings of the Rajya Sabha as long as he does not act as the President of India during a vacancy in the office of the President.
• Deputy Chairman: The Deputy Chairman is elected by the Rajya Sabha from amongst its members. In the absence of the Chairman, Deputy Chairman presides over the functions and proceedings of the House. He ceases to be a Deputy Chairman of RS as soon as he ceases to be a member of RS. He can resign from office addressed to chairman passed by simple majority in RS after giving 14 days notice but he’ll continue to be a member of RS.

He also performs the function of the Chairman in his absence.

If the resolution for the removal of Chairman and Deputy Chairman is being considered they will not preside over the House. Then House will decide, who will preside over in the absence of them.

Powers

1. Along with Lok Sabha, the Rajya Sabha has the right to initiate, pass and amend ordinary bills of law. If there is a conflict which cannot be resolved even by the joint committee of the two Houses, it is solved in the joint session of the Parliament, where the will of the Lok Sabha almost always prevails, since the Lok Sabha is more than twice as large as the Rajya Sabha.
2. Consultative Power in money bills (taxation and spending), which can originate only in the Lok Sabha, and the Rajya Sabha cannot delay it for more than fourteen days, nor amend it against the will of the Lok Sabha, otherwise the bill will be deemed to be passed by both the houses and sent to the President for assent.
3. Equal Powers with the Lok Sabha in initiating and passing any Bill for Constitutional Amendment (by a majority of the total membership of the House and at least two-thirds majority of the members present and voting).
4. Equal Powers with the Lok Sabha in initiating and passing a motion for the impeachment of the President(Indians, by two-thirds of the membership of the House)
5. Equal Powers with the Lok Sabha in initiating and passing a motion for the impeachment of the judges of the Supreme Court and the state High Courts (by a majority of the membership of the House and two-thirds majority of the members present and voting)
6. Equal Powers with the Lok Sabha in initiating and passing a resolution declaring war or national emergency or constitutional emergency in a state.
7. If the Lok Sabha is dissolved before or after the declaration of a National Emergency, the Rajya Sabha becomes the sole de facto and de jure Parliament. It, of course, cannot be dissolved.
8. Sole power to declare by two-thirds majority if a subject in the jurisdiction of the states has assumed national importance, thereby enabling the Union to legislate on it.
9. No power to cause the dismissal or resignation of the Prime Minister or any minister, this being the sole prerogative of the Lok Sabha (caused by its simple majority). But power to ask questions from the ministers retained.

                               Lok Sabha or the Lower House                        .

The Lok Sabha alternatively titled, the House of the People, is the lower house in the Parliament of India. There have been 14 Lok Sabha terms elected by the people of India as of 2007. Members of the Lok Sabha are direct representatives of the people of India, having been directly elected by the electorate consisting of all eligible adult citizens of India. Its maximum size as outlined in the Constitution of India is 552 members, made up of up to 530 members representing people from the states of India, up to 20 members representing people from the Union Territories, and two members to represent the Anglo-Indian community if it does not have adequate representation in the house according to the President.

The total membership is distributed among the states in such a manner that the ratio between the number of seats allotted to each state and the population of the state is, so far as possible, the same for all states. The number of seats will be based on 1971 census till 2026 (earlier 2000; changed by 84^th Amendment Act 2000) and the division of the state in the territorial constituencies shall be based on 2001 census (87th Amendment Act 2003; earlier 1991)

Seats are reserved for SC/STs on the basis of population ratio.

Tenure of the Lok Sabha

• The normal tenure of the Lok Sabha is five years. But the House can be dissolved by the President before the end of the normal tenure.

• The life of the Lok Sabha can be extended by the Parliament beyond the five-year term during the period of time of emergency, proclaimed under Art. 352. But this extension is for a period of not more than one year at a time (no limit on the number of times in the Constitution).

• However, such extension shall remain in force for not more than six months after the emergency has been revoked.

• The original Constitution, under Art.83 envisaged the normal tenure of the Lok Sabha to be 5years. However, Parliament by 42nd Amendment extended it to six years, but the 44th Amendment Act again fixed the original normal tenure of five years.

Qualifications for the membership of the Lok Sabha

To become a member of the Lok Sabha, the person must

• be a citizen of India.

• be not less than 25 years of age.

• be a registered voter in any of the Parliamentary constituencies in India.
• should not hold any office of profit
Vacation of Seats

Provisions for vacation of the seats in the Parliament are enumerated in Art, 101, these are:
• No person shall be a member of both the Houses of the Parliament. If a person is chosen for both the Houses, he/she shall have to vacate membership of either House.
• If a member of the house is disqualified under Art 102(1) and (2).

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

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

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

(c) If he is an undischarged insolvent;

(d) If he 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;

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

 (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule (defection).

• If a member resigns in writing addressed to the Chairman (the Council of States) or the Speaker (the House of People) as the case may be, and if his resignation is accepted by the Chairman or the Speaker, as the case may be.

• If a member of either House absents himself from the House without its permission for a period of more than sixty days, the House may declare his seat vacant.

Oath (Art 99)

Oath to the members of parliament is administered by the President or the person on behalf of the President.

The Speaker and the Deputy Speaker of the Lok Sabha; their powers

The House of people will as soon as may be after its first sitting choose two members to the House to be Speaker and Deputy Speaker (Art 93).

• The Speaker is the Chief Presiding Officer of the Lok Sabha.

• The two officers are elected from amongst the Members of the Lok Sabha after a new Lok Sabha is constituted.

• The Speaker presides over the meetings of the House and his rulings on the proceedings °f the House are final.

• He has the responsibility to uphold the dignity and the privileges of the House.
• In the absence of the Speaker, the Deputy Speaker performs the Speaker's duties.
• The Speaker continues to hold office even after the Lok Sabha is dissolved till the newly elected Lok Sabha is constituted.

• The Speaker and the Deputy Speaker may be removed from their offices by a resolution passed by the House with an effective majority of the House after a prior notice of 14 days to them.

• During the time of resolution, he shall not preside but shall have the right to speak in or to take part in proceeding of the House and shall have a right to vote except in case of equality of vote.

• Only Speaker will decide whether a Bill is Money Bill or not and his decision will be final.

Penalty for sitting and voting when not qualified

• If a person sits or votes as a member of either House of the Parliament before he has complied with the requirements of Art. 99 (Oath), or when he knows that he is not qualified or that he is disqualified for membership thereof, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union.
Prerogatives of the Parliament

The Members of Parliament enjoy certain prerogatives and privileges, not enjoyed by other citizens. The intention behind this is to enable them to discharge their functions efficiently and fearlessly. These are enjoyed in two forms:

1. Individually: These are the prerogatives enjoyed by the Parliamentarians in an individual capacity.

•Freedom of arrest in civil proceedings (only), 40 days before and 40 days after the session

•A member can’t be summoned to give evidence as a witness when the Parliament is in session

• An MP has a freedom speech in Parliament but it restricts him to speak regardless the dignity of the House.

1. Collectively: There are certain privileges, which the members of the Parliament enjoy as a collective body.

• Right to publish or not to publish the Parliamentary proceedings including the right to punish individuals for publishing such reports.

• Right to exclude civilians from the House.

• Right to regulate the internal affairs of the House.

• Right to decide about its business.

• Right to punish for the contempt of the House.

• Right to punish Members and the outsiders for breach of its privileges.

Anti-Defection Law (Schedule X)

When a person leaves his party and joins another one it is termed as Defection.

• The Parliament in 1985, by the 52nd Constitutional Amendment, sought to check this tendency.

• The Act is negatively worded and provides for the disqualification of a Legislator.
• According to the Act, following are the grounds for the disqualification of a Legislator:

1.  If a legislator voluntarily resigns from the political party on whose ticket he/she was elected.

1. If a Legislator votes against the whip issued by the President of the political party to which he/she belongs, or abstains from voting contrary to any direction issued by his/her parent party, without obtaining prior permission of the political party, and if such voting or abstention is not condoned by the party within 15 days of the occurrence of the voting. The Supreme Court in a judgement in 1992 restricted the scope of whip only in the cases of the Confidence and the No-Confidence Motions, Money Bills and Vote of Thanks to the President's Address. This means that a Legislator has the right to vote against the whip in other cases because according to the Supreme Court, a Legislator has a right to political dissent.
2.  If an independent member joins any political party
3. If a nominated Member of the legislature joins a political party after 6 months of his nomination. This means, if he/she does the same before this specified period, he shall not be disqualified.
4. If, in this case of a split in the party, the splinter group has members less than the one-third of the parent party.
5. If, in the case of a merger, the same is not endorsed by the two-third members of the party, which wants to merge itself.

• However, the officers of the Union and the State Legislatures- the Speaker or the Deputy Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha, the Speaker and the Deputy Speaker of the Vidhan Sabha and the Chairman of the Vidhan Parishad—shall not be disqualified under the Act, if they rejoin their political party (parties) after they cease to hold such offices.
• Also according to the Act, any decision regarding the defection issue shall be made by the Chairman or the Speaker as the case may be; such decision shall be the final.

• The Court shall have no right to inquire into this, the Supreme Court in a decision by the Constitutional Bench in November, 1991, upheld that such a clause takes away its exclusive right of 'Judicial Review' which is a 'Basic structure' of the Constitution. Thus, the decision of the Chairman or the Speaker as the case may be, is final, subject to Judicial Review of the Court.

Lok Sabha sessions and Working hours

On normal business days, the Lok Sabha assembles from 11 a.m. to 1 p.m., and again from 2 p.m. to 6 p.m. The first hour of every sitting is called the Question Hour, during which questions posed by members may be assigned to specific government ministries, to be answered at a fixed date in the future.

The Lok Sabha shares legislative power with the Rajya Sabha, except in the area of Money Bills, in which case the Lok Sabha has the ultimate authority. If conflicting legislation is enacted by the two Houses, a joint sitting is held to resolve the differences. In such a session, the members of the Lok Sabha would generally prevail, since the Lok Sabha includes more than twice as many members as the Rajya Sabha.

Three sessions of Lok Sabha take place in a year:

• Budget Session: February to May.
• Monsoon Session: July to September.
• Winter Session: November to December.

Categories and Passage of the Bills

The most important function of the Parliament is making laws. The legislative procedure is initiated in the form of a Bill.

• A Bill is a proposed legislation. It becomes a law when it is assented by the President.
• These Bills are classified as— Ordinary, Financial, Money and the Constitutional Amendment Bills. The Bills are of two types-the Government Bills and the Private Member's Bills. Money, Financial and an Ordinary Bill under Art 3 are essentially the Government Bills because these can only be introduced on the recommendation of the President. Other Bills can be introduced by private Members also (any Member other than a Minister is a private Member). The procedure for the passage of both types of Bills is the same.

Ordinary Bills

• All the Bills other than Financial Bills. Money Bills and the Constitutional Amendment Bills are Ordinary Bills.

• Such Bills can be introduced in either House of the Parliament (in Lok Sabha or the Rajya Sabha) without the recommendation of the President, except those Bills under Article 3 (i.e. Bills related to reorganisation of the territory of a State).

These Bills are passed by a simple majority by both the Houses. Both the Houses enjoy equal jurisdiction over such Bills and in case of a deadlock due to any reason, the tie is resolved by a joint sitting. The President has the right to return such Bills for reconsideration to the Parliament once.

Each House has laid down a procedure for the passage of a Bill. According to the procedure of the House, a Bill has to pass through three stages commonly known as Readings.
First Reading: The Bill is introduced in the House. At this stage, no discussion takes place.
Second Reading: This is the consideration stage when the Bill is discussed clause by clause.
Third Reading: During this stage, a brief general discussion of the Bill takes place and the Bill is finally passed. When the Bill is passed by one House, it is sent to the other House for its consideration

Money Bills

Money Bill is defined in Art. 110 of the Constitution. As per the Article, any Bill dealing with all or any of the matters enumerated from (a) to (g) of the same Article shall be a Money Bill. These are:

1. imposition, abolition, remission, alteration or regulation of any tax.
2. regulation of the borrowings of money or giving of guarantee by the Government of India
3. Custody of the Consolidated or Contingency Fund of India, payment into or withdrawal of money from any such fund.
4. Appropriation of money out of the Consolidated Fund of India (CFI).
5. Declaring any expenditure as 'Charged' on the CFI.
6. Receipt or issue of money from the CFI and audit of the accounts of the Union or the States.

Any matter incidental to any of the matter specified in the sub-clauses (a) to (f).

• If there arises any question over the validity of the Money Bill, the decision of the Speaker of the Lok Sabha is final. The speaker duly certifies the Bill as Money Bill because this Bill passes through special procedures (Art. 109)7"

• A Money Bill can only originate in the Lok Sabha after the recommendation of the President.

• After being passed by the Lok Sabha, the Money Bill passes on to the Rajya Sabha which has four options:

a) Pass the Bill in the original form;

b) Reject the Bill;

c) Take no action for 14 days;

d) Send the Bill with suggestive amendments to the Lok Sabha.
If the case is either (b) or (c), the Bill shall be automatically deemed to have been passed by the Rajya Sabha. In case of (d), the Lok Sabha has sole authority to accept or reject one or all of the recommendation(s) and in this case also the Bill shall be deemed as passed with or without recommendations.

• There is no provision for a joint-sitting of the Parliament to pass a Money Bills

• After the Money Bill is passed by the Lok Sabha and the Rajya Sabha, it is presented to the President who unlike in the case of other Bills, has no right to withhold it (Art. 111).

• The 'Appropriation Bill' and the 'Annual Financial Bill' are Money Bills.

Financial Bills

Any Bill dealing with revenue or expenditure, but not certifies as Money Bill by the Speakers as Financial Bill. These Financial Bills are of two classes-

a) A Bill containing any of the matters specified in Art. 110, but not exclusively dealing with those matters. For example, a Bill containing taxation clause, but not solely dealing with taxation. This is called the Financial Bill of First Class.

b) An Ordinary Bill contains provisions involving expenditure from the Consolidated Fund of India. This is called the Financial Bill of Second Class.

As regards the procedure for its passage, a Financial Bill is as good as an Ordinary Bill except that a Financial Bill cannot be introduced without the President's
recommendation, and it can only be introduced in the Lok Sabha. Thus a Financial Bill is passed according to the ordinary procedure provided for passing of an Ordinary Bill.

Constitutional Amendment Bills

• Art. 368 deals with the power of the Parliament to amend the Constitution, and the procedure thereof

• A Bill for this can be introduced in either House (the Lok Sabha or the Rajya Sabha) of the Parliament and there is no need of the  President’s recommendation for this.

• Such a Bill must be passed by each House separately with a special majority required under Art 368 i.e not less than two-third of the members of the House present and voting.

• The joint sitting of parliament is not possible for passing such a Bill ( Art 108).

• By the 24^th Amendment Act, it is obligatory for the President to give his assent to the Bill amending the Constitution.

Effects of the dissolution of the Lok Sabha on the pending Bills

• The Bill pending in the Parliament DOES NOT lapse on prorogation of the House
• Bill pending in the Rajya Sabha and which has not been passed by the Lok Sabha yet, DOES NOT lapse on the dissolution of the Lok Sabha
• Bill pending in the Lok Sabha or Bill has been passed by the Lok Sabha and pending in the Rajya Sabha shall LAPSE on the dissolution of the Lok Sabha but such a Bill can be saved by President by calling a joint sitting of both Houses of Parliament.