State Legislature

This article deals with ‘State Legislature .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Article 168 to 212 in Part VI of constitution deals with State Legislature
• Although similar to Parliament but some differences as well

Organisation of State Legislature

• No uniformity in organisation- most have Unicameral but some has Bicameral system.
• 22 states have Unicameral & 7 States have Bicameral  Legislature(AP, Telangana , Karnataka, Maharashtra, UP, Bihar & J&K)
• State Legislature consist of Governor & Legislative Assembly(+ Legislative Council )

Provision for Creation & Abolition of Legislative Council

Constitution provide provision for this

• Legislative Assembly of concerned state must pass resolution of same by Special Majority ( only thing where Special Majority of Legislative Assembly is required)
• Parliament then pass it by Simple Majority (& don’t deemed to be Amendment) 

Composition of Legislative Assembly

Strength	– All members are elected directly by Universal Adult Franchise( Legislative Assembly of Sikkim& Nagaland have indirectly elected members too) – Maximum membership – 500 & Minimum – 60 ( Legislative Assembly of Arunachal, Goa, Sikkim, Nagaland & Mizoram have lower membership than 60 provided under various sub-sections of Article 371)
Nominated member	Governor can nominate 1 Anglo Indian if not adequately represented (95th amendment- till 2020 , originally upto 1960)
Territorial Constituencies	– For purpose of holding elections, State divided into constituencies – Such way that ratio of Population of each constituency and number of Seats allotted to it remains constant
Readjustment after census	Same as Lok Sabha.
Reservation of Seats for SC & ST	Reservation in proportion of population ratio in that state (95th Amendment – till 2020 , originally upto 1960)

Composition of Legislative Council

Strength

– Indirectly Elected – Maximum can be 1/3 of Total Strength of Legislative Assembly but not fewer than 40  members

Manner of Election

1. 1/3 elected by Local Bodies 2. 1/3 by members of Legislative Assembly 3. 1/12 elected by Teachers of three years standing 4. 1/12 elected by Graduates of three years standing 5. 1/6 nominated by Governor from persons who have special knowledge of Literature, Science, Art, Cooperative Movement & Social Service   Members are elected by System of Proportional Representation by means of Single Vote Transferable & Governors nomination cant be challenged in court

Duration of Houses

Legislative Assembly	– Not a continuing house  . – Normal Term is 5 years from first meeting after elections (for J&K , it is 6 Years) – Governor authorized to dissolve it at any time – Term can be extended during emergency 1 year at time by act of Parliament
Legislative Council	– Continuing House like Rajya Sabha – 1/3 of its members retire after every 2 years & 6 year term of each member

Membership of State Legislature

Qualification

• Must be citizen of India

Legislative Assembly	Minimum Age –  25
Legislative Council	Minimum Age – 30

• Must have  any qualification prescribed by Parliament . Accordingly Representation of People Act,1951 made by Parliament having following provisions
  • Member of Legislative Council + Governors nomination should be elector from concerned state
  • Member of Legislative Assembly must be elector from concerned state
  • Should be SC/ST if he wants to contest from Reserved Seat for them

Disqualification

• Holds any Office of Profit under Union/State Government (Minister is not office of profit)
• He is unsound & declared so by court or undischarged insolvent
• Not citizen anymore
• Disqualified so in law made by Parliament( Representation of People Act)
• Anti Defection Laws(Schedule 10)

Presiding officers of State Legislature

Each house has its own Presiding Officer

Legislative Assembly	Speaker & Deputy Speaker
Legislative Council	Chairman & Deputy Chairman

1 . Speaker of Assembly

• Elected by Assembly from among themselves

• Holds office during life of Assembly but vacate office in 3 cases
  • Ceases to be a member of Assembly
  • Resigns by writing to Deputy Speaker
  • Removed by resolution passed by majority

• Powers  & Duties of Speaker
  1. He maintains order & decorum of the house
  2. He is final interpreter of provisions of Constitution & Rules of Procedure and Conduct of Business of Legislative Assembly within the house
  3. He adjourns the house or suspends it in absence of Quorum
  4. He can’t cast vote at first instance but in case of tie, he can vote
  5. He can allow secret sitting of house on request of Leader of the house
  6. He decides whether bill is money bill or not and his decision is final
  7. He decides the question of disqualification of MLA arising out of provisions of 10th Schedule  (Supreme Court 1992 Judgement: his decisions subject to judicial review)
  8. He appoints Chairman to the  Committees & himself is Chairman of Business Advisory Committee, Rules Committee & General Purpose Committee

2. Deputy Speaker

• Also elected from among themselves like Speaker
• Remains in office during life of Legislative Assembly except when resigns writing to Speaker , ceases to be MLA or removed by Resolution by Legislative Assembly
• Performs duties of Speaker when Speaker is absent from Legislative Assembly & has all powers of Speaker at that time
• In general situation, he acts as normal member of Legislative Assembly
• When both Speaker & Deputy speaker are absent, then any member from Panel of Chairman nominated by Speaker can act as speaker

3. Chairman

• All provisions same as Speaker but  Speaker has only one more power
• Only he can decide whether Bill is Money Bill or not & his decision on that matter is final

4. Deputy Chairman

• Same as Deputy Speaker of Legislative Assembly

Sessions of State Legislature

Summoning	– Governor can summon each house to meet – Maximum time between each session can’t be more than 6 months
Adjournment	– Suspends work in a sitting for specified time which may be hours or days – Adjournment Sine Die  suspends work for indefinite time – Both powers lie with Presiding officer of the house
Prorogation	– When business of house is completed , then Adjournment Sine Die – After few days Governor issues notification for Prorogation of session
Dissolution	– Only Legislative Assembly & not Legislative Council subject to Dissolution . – Ends very life of existing house.
Quorum	– Minimum number of members that must be present to transact any business – 10 members or 1/10th of members whichever greater
Voting in House	– All matters decided by majority vote of present & voting – Only few matters specified in constitution require Special Majority

Language in State Legislature

• Official Language of State or Hindi or English to be language of transacting business
• Presiding Officer can permit member to address house in mother tongue

Rights of Ministers & Advocate General

Both can participate & has right to speak in either house & any of its committees of which he is named a member, without being entitled to vote .

Legislative Procedures in State Legislature

1 . Ordinary bill

• It can be introduced by any member .
• It can be introduced in any house (in case of Bicameral Legislature).

Process in first house

• Passes through First, Second & Third reading in house
• Transmitted to Second House for consideration & passage

Process in second house

Passes through all the three readings & then put to vote .

When bill passed by Legislative Assembly is send to Legislative Council , later has 4 options

Possibility	What happens
Pass bill without amendment as send by Legislative Assembly	Deemed to be passed & send to Governor
1. Pass bill with Amendment 2. Reject bill altogether 3. Not take any action for 3 months	– Assembly can again pass Bill & send it to Council with or without Amendment – Council can pass Bill, reject it or not take action for 1 month . But then bill is deemed to be passed by both the houses => Council has little power& can only delay Bill by 4 months

Differences with Center polity

• No provision of Joint sitting
• If bill originated in Legislative Council & rejected by Legislative Assembly , bill ends there only

Assent of Governor

Can give Assent	Bill becomes Act
Withhold his Assent	Bill ends & doesn’t become Act
Return Bill for Reconsideration of House(s)	If House(s) again pass Bill with or without Amendment, then Governor must give assent (Suspensive Veto)
Reserve Bill for consideration with President	President may give his assent, withhold assent or send bill for reconsideration . Reconsideration (by State Legislature)  must take place in 6 months & presented again to President . It is  not obligatory for President to give assent

2. Money Bills

Special procedure for passing money bills

Introduction	Can be introduced in Legislative Assembly only with permission of Governor  & only by Minister
In Assembly	Introduced & after passing send to Legislative Council.
In Council	– Limited power & can only make  recommendations + must return bill to Assembly in 14 days – If no action taken within 14 days – Bill is deemed to be passed
Again in Assembly	Can accept or reject recommendations of Legislative Council  & bill is deemed to be passed by both houses

Assent of Governor

Give Assent	Bill becomes Act
Withhold Assent (but cant send for reconsideration)	Generally don’t happen because Bill is introduced after taking his permission
Send to President for consideration	President can give assent or withhold his assent but cant return the bill for reconsideration to state legislature

Debate : Position of Legislative Council

Equal with Legislative Assembly

• Introduction & passage of Ordinary Bill
• Selection of ministers & Chief Minister (can be from any house)
• Consideration of reports of constitutional bodies like State Finance Commission etc   
• Enlargement of jurisdiction of State Public Service Commission            
• Approval of ordinance

Unequal with Legislative Assembly

• Final power of passing an ordinary bill lies with the assembly. At the most, the council can detain or delay the bill for the period of four months (3+1). Council is not a revising body like the Rajya Sabha; it is only an advisory body
• Money Bill can be introduced only in Legislative Assembly
• Cant amend or reject Money Bill
• Final power to decide whether bill is Money Bill lies with Speaker of Legislative Assembly
• Council can only discuss budget but can’t vote on demands for grants
• Cant remove Council of Ministers by passing No Confidence Motion
• Doesn’t participate in election of President of India & Representatives in Rajya Sabha (Note : Rajya Sabha members do participate in election of President and Vice President)
• Council has no say in Constitutional Amendments
• Very existence of Council depends on will of Assembly

Hence, Position of Legislative Council wrt Legislative Assembly is weaker than position of Rajya Sabha wrt Lok Sabha.

Why Legislative Council given very less importance than Rajya Sabha ?

• Rajya Sabha consist of Representatives of States & reflect federal structure of India while no such thing in Legislative Council
• Heterogeneous structure with some elected & other nominated members making its position weak while Rajya Sabha is homogeneous body with elected members
• Position of Legislative Council  is like House of Lords of Britain & it must yield wrt Legislative Assembly which represent popular voice

Importance

• Second House of legislature is considered important for two reasons
  • To  check hasty actions by popularly elected House
  • To ensure that individuals who might not be cut out for the rough-and-tumble of direct elections too are able to contribute to the legislative process.

Against

• Opposition to the idea of Legislative Councils is centered on three broad arguments
  • They can be used to park leaders who have not been able to win an election.
  • They can be used to delay progressive legislation.
  • They would strain state finances.

Question : Unlike Rajya Sabha, which enjoys almost equal powers to that of Lok Sabha, the State Legislative Council is a mere subordinate to the Legislative Assembly. Discuss. (200 Words, 10 Marks)

Answer : Rajya Sabha, also called the Council of States, is almost equal to the Lok Sabha in the Parliament, but the same cannot be said about their corresponding Legislative Councils and Legislative Assemblies in the states

• Rajya Sabha has a stronger ideological role to play as the Representative of the States in the Centre. Thus, this is as powerful as the Lok Sabha
• From Article 80 of the Indian Constitution till Article 121, the Powers, Constitution, Role, Membership, Duties etc., of the Rajya Sabha has been given in detail while the same cannot be said of the Legislative Council
• Final power of passing an ordinary bill lies with the assembly. At the most, the council can detain or delay the bill for the period of four months (3+1). Council is not a revising body like the Rajya Sabha; it is only an advisory body

• Legislative Assembly can create or destroy the Council according to its own wishes. That is not possible with the Rajya Sabha, which is a permanent body.
• Most of the Indian States have chosen not to have an extra body, because it does not serve much purpose, other than as a check on the laws made by the Assembly. 

Thus, the Legislative Council is termed as a mere subordinate to the Legislative Assembly.

Chief Minister

This article deals with ‘Chief Minister .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Chief  Minister –  de facto Head of State
• Governor – de jure Head of State
• Chief Minister is  primus inter pares

Appointment of Chief Minister

Article 164	Chief Minister shall be appointed by the Governor (but he is not free to appoint anybody)
	Generally from Legislative Assembly but if State has Council, then member of Council can also be appointed as Chief Minister
Delhi High Court 1980	Person need not prove his majority before he is appointed as Chief Minister . Governor first can appoint Chief Minister and ask him to prove his majority in Legislative Assembly in reasonable time(1 month now)
Supreme Court 1997	Person who is not Member of any House of State Assembly can also be appointed as Chief Minister & within 6 months he must become Member of any of the House of Assembly

Term of Chief Minister

• Term of Chief Minister is not fixed
• But doesn’t mean he holds office with pleasure of Governor
• He remains in office till he has not lost  majority of Assembly

Powers of Chief Minister

1 . In Relation to Council of Ministers

• Recommends Governor who can be appointed as Minister
• Allocate and reshuffles various portfolios among them
• Presides over the meetings of Council of Ministers
• He can ask Minister to resign or advise Governor  to dismiss him
• He can collapse Council of Ministers by resigning from his office

2. In relation to Governor

Article 167: It is duty of Chief Minister to

• Communicate the Governor, all decisions taken by Council of Ministers relating to administration of the affairs of State
• Furnish such info relating to the administration of affairs of State  & any proposal of Legislation as Governor may call for
• Submit for consideration of Council of Ministers any matter on which decision has been taken by Minister but not considered by Council
• Advise Governor in appointment of Advocate General,State Election Commissioner, Chairman & Members of SPSC

3. Relation to State Legislature

• Advises Governor with regard to Summoning & Proroguing of sessions of Assembly
• Can recommend dissolution of Assembly
• Announces Government’s policies on floor of Assembly

4. Other powers

• Chairman of State Planning Board
• Member of National Development Council,National Integration Council,Inter-State Council  etc
• Chief Spokesman of State Government
• Leader of party in power
• Political head of service

Important Articles wrt Chief Minister

163	Council of Minister to aid and advise Governor
164	Other Provisions as to ministers like collective responsibility, appointment of ministers by governor & ministers holding office till pleasure of governor
167	Duties of CM wrt furnishing of information to Governor

Governor

This article deals with ‘Governor .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Articles related to Governor

• Article 153 to 167 (They deal with State Executive  (not only Governor))
• Under Article 159 of Indian Constitution, Governor takes oath on following things
  1. To discharge the functions of Governor
  2. Conserve , Protect and Preserve the Constitution of India
  3. Devote  to the service and well being of the people of the State

Appointment of Governor

• Governor  is appointed and not elected (unlike President) (In US , Governor is elected directly by people because they have concept of complete federation)
• Although Draft constitution provided election of Governor by Universal Adult Franchise but Constitutional Assembly opted for present system

Governor of India is Modeled on

• Office of Governor in India is modeled on Canadian Model (and not American).
• Governor is Agent of Center at State

Qualifications to become Governor

• He should be Citizen of India
• He should have completed age of 35 years

Only these two and no other condition.

Term of Governor

• Hold office for 5 years but works subject to Pleasure of President
• Supreme Court Ruling :Pleasure of President in this regard is not justiciable under court of law . Governor has no fix term.
• His office can’t fall vacant and there cant be interregnum
• His emoluments & allowances can’t be reduced to his disadvantage throughout his term . These emoluments are decided by Parliament (not Charged on Consolidated Fund of India/State)
• Same Governor can act as Governor of more than one state (after 7th Constitutional Amendment)
• Order of Precedence –  4th within State & 8th outside State

Powers and Functions of Governor

1 . Executive Powers

• All Executive actions taken in his name formally
• He can make rules specifying manner in which orders and other instruments made and executed in his name should be authenticated
• Can make rules for convenient transaction of the Business of State Government
• Appoints Chief Minister & Council of Ministers, Advocate General, State Election Commissioner , Chairman and Members of SPSC and so on
• Should appoint Tribal Welfare Ministers in Chhattisgarh, Jharkhand, MP & Odisha
• He can require Chief Minister to submit for consideration of Council , any matter on which decision has been taken but matter not considered by Council
• He can recommend imposition of Constitutional Emergency in State and during that period enjoys extensive powers and act as agent of President
• He acts as Chancellor of Universities in State and also appoints Vice-Chancellors of  Universities

2. Legislative Powers

• Can Summon or Prorogue State  Legislature and dissolve Legislative Assembly
• Can address Legislative Assembly at commencement of session of each year and new house
• When office of Speaker & Deputy Speaker are vacant, can appoint member to Preside
• Nominate 1/6 members to Legislative Council ( Science, Arts, Literature , Social Science & Cooperative Movement)  (first 4 same for President but Cooperative Movement is addition)
• Can nominate 1 member to Legislative Assembly  from Anglo Indian Community  if not adequately represented.
• Decide on disqualification of any MLA with Election Commission
• Certain type of bills require his permission to be introduced
• Can promulgate Ordinances when house(s) are not in session

• When Bill is passed by both Houses ,it require his assent to become Act. He can do four things –
  1. Give assent
  2. Withhold assent
  3. Send back for Reconsideration.  But if Assembly  send it back with or without amendments he has to give assent
  4. Can reserve bill for consideration of President

• Governor can reserve bill for consideration with President when

Endangers position of High Court  (must)	Opposed to Directive Principle of State Policy
Ultra vires	Against larger interest of country
Of grave National Importance	Dealing with compulsory acquisition of property under Article 31A

• Lays report of State Finance Commission ,SPSC and Auditor General before State Legislature

3. Financial Powers

• Ensure that Annual Financial Statement is laid before State Legislature
• Money Bill can be introduced only after taking his recommendation
• Can make advances out of Contingency Fund of State  to deal with unforeseen condition
• Constitute State Finance Commission after  5 years to review Financial Condition of Municipal Corporations and Panchayats & suggest measures to improve it

4. Judicial Powers

• Consulted by President while appointing judges of concerned State High Court
• Can grant Pardon, Reprieve, Respite , Remission or Commute when punishment is  for offence against  law to which executive power of state extend
• Makes appointments ,postings and promotions of District Judges in consultation with High Court
• Can appoint persons to  Judicial Services of State (other than District Judge ) in consultation with State High Court & SPSC

5. Diplomatic Functions

• Governor has no Diplomatic powers .

6. Military powers

• Governor has no Military Powers
• Protecting the State is duty of Center

7. Pardoning power

• He can pardon, reprieve, respite, remit , suspend or commute any person convicted of any offence against state law
• But He cant Pardon death sentence even if it is given by State Law , although he can   commute death sentence . Governor cant look into cases related to Court Martial

Except these two all other Pardoning Powers of Governor & President are same

8. Special powers of Governor

Certain Special Responsibilities to discharge according to directions issued by President. In these cases, although he has to consult with Council of Ministers but acts finally on his discretion

Maharashtra	Development Board for Vidarbha & Marathwada
Gujarat	Development Board for Saurashtra & Rann of Kutch
Nagaland	Wrt Law & Order in State for so long as internal disturbance in Naga Hills – Tuensang Area continues
Assam	Wrt Administration of Tribal Areas
Manipur	Regarding Administration of Hill Areas in state
Sikkim	For peace & for ensuring social & economic advancement of different sections of Population
Arunachal Pradesh	Wrt Law & Order in State
Karnataka	Establishment of  separate Development aboard for Hyderabad-Karnataka region

9. Other powers

• Constitution contains provision that Ministerial advice is binding on President  but no such Constitutional Provision has been made wrt Governor. Although this is settled matter now dealt by Shamsher Singh vs State of Punjab (but again whether this Judgement extends to Delhi as well is Subjudice)
• Governor too enjoys Veto Powers like President of India
• Ordinance making power of Governor is same like President but only with one difference that if same bill would have been reserved by Governor for consultation with   President then that Ordinance too would require Presidential assent before coming to force

Discretionary Powers of Governor

Discretionary powers of Governor are wider than President

Constitutional Discretion

• Reservation of a Bill for Consideration of the President;
• Recommendation for imposition of President’s Rule in State;
• Special functions in certain states (as mentioned above)
• Sending Bill to Legislative Assembly to reconsider bill once
• Sending advise given by Council of Ministers to reconsider it once

Situational Discretion

• Appointing Chief Minister when no party has acquired clear cut majority in the State Legislative Assembly or when a Chief Minister dies  in office;
• Dissolution of Legislative Assembly in case Council of Minister lose majority

Importance of Governor

Governor has very important role to play in Indian Constitutional Scheme

• Overseeing government formation
• Reporting on the breakdown of constitutional machinery in State 
• Maintaining effective communication between  Center and  State
• Reserving his assent to Bills passed by the State Legislature or Sending it to President for consent.
• Promulgating ordinances if the need arises.
• As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises,
• Conscience keeper of the community

Issues with working of Governor 

Issue 1

• Governor’s post has not remained centre of controversy from the beginning. It was only post 1967 when Non-Congress Governments were first formed in states that change in role of Governor’s was observed. He stopped being Constitutional Head of State and became  agent of the Centre in State . It can be seen in following instances
  • In 1967, under the leadership of Maharaval Lakshman Singh , Samyukta Morcha performed well in Rajasthan State elections. But when he claimed to form government , Governor Sardar Hukum Singh took shelter under Article 159 arguing that he has took oath to work for welfare of the people of state and this cant happen until Congress Party’s support is present . Hence, he gave first opportunity to form Government to Shri Mohan Lal Sukhadia.
  • In 1970 , in UP Chaudari Charan Singh formed government with Congress support. But due to some conflict, Congress took back support. Charan Singh asked for some time from Governor YV Reddy to prove his majority. But YV Reddy refused to give time to Charan Singh
  • In 1982, in Haryana Lokdal – BJP- Samyukta Dal performed well and when Chaudari Devi Lal claimed to form Government , Governor GD Tapase asked Devi Lal  to parade  all his MLAs. But appointed Congress leader Bhajan Lal as CM one day before this.

In this way, Governors have performed the role of Agent of Centre .

Issue 2

• Post of Governor given as parking spot for burnt out politicians 
• Spoil System in appointing person as Governor.

Issue 3

• Way in which Governors are removed on change of Government is also questioned by many scholars.
  • Governors face arbitrary removal before the expiration of their tenure . Even after Supreme Court Judgement in B.P. Singhal v. Union of India calling for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, it is not being implemented on ground

Issue 4

• Governors work in Partisan ways (helping Center to impose President’s Rule and destabilise the State Governments)
  • Article 200 and 201 : The Governor has the power to withhold the assent to a bill along with reserving the bill for consideration of President. States allege that this provision has often been misused by the governor who acts on behest of the union government.
  • Article 356 : To recommend the imposition of constitutional emergency in a state. For political gains, this power has been abused by central governments . Supreme Court in the case of S.R. Bommai v. Union of India acknowledged this.
  • Examples are as follows

JP Rajkhowa (Arunachal)	Destabilizing the polity of the state through instigating factionalism
West Bengal	Stifling governance by acting as parallel centers of powers (as accused by TMC government in West Bengal)
Karnataka  (2018)	Governor gave first opportunity to BJP to form government despite the fact that it was not possible for BJP to form government without indulging into Horse Trading and Defections.
Goa	Goa Governor Mridula Sinha ignored the established principle of inviting the single largest party in the wake of a fractured mandate, and appointed BJP leader Manohar Parrikar as chief minister .
Buta Singh	Role of Governor Buta Singh in imposing President’s Rule in Bihar in 2005 by not electing any leader as CM and not trying all possibilities to form Government. He reported to Union Government that stable government couldn’t be formed and Union imposed President’s Rule in Bihar. In the Judgement, SC nullified the actions of Governor & also ordered that facts represented by Governor shouldn’t be taken by Union Government on face value.

Sarkaria commission on Governor

• Recommendations wrt  Governor
  • Governor is lynchpin of Constitutional Apparatus +  Governor assures continuity of Government + it shouldn’t be dispensed with
  • Discretionary powers of Governor should be left untouched

• Person to be appointed as Governor
  • Should be Eminent Person
  • Must be person from outside the state
  • Must not have participated in active politics atleast for some time
• Tenure must be guaranteed & if any action is to be taken against him , he must be given reasonable opportunity

Punchi Commission on Governor

• Given the status & importance conferred by Constitution on office of Governor + no election for seat of governor , it is important that Constitution lays down explicitly the qualifications for being considered for appointment .
• Presently only condition for appointment of Governor is  he should be Citizen of India and above 35 years
• Recommendations of Sarkaria Commission should be adopted strictly
• Governors should be given fixed tenure of 5 years & their removal should not be at will of the Government of India . Necessary to provide for impeachment of Governor on same lines as provided for impeachment of President

Debate on method to remove Governor

Governor has no security of tenure and he works under the  Pleasure of the President (Article 156)

In Constituent Assembly Debates

• Prof KT Shah said in Constituent Assembly debates that we must not leave the Governor to be entirely at the mercy of President . So long as he acts in accordance with advice of Constitutional Advisors of Province, he shouldn’t be removed .
• Ambedkar answered criticisms with this statement : It is quite unnecessary to burden Constitution with all these limitations stated in express terms  . Power of removal although apparently absolute is subject to implied limitations . 

But norms of appointment & credibility of office of Governor deteriorated fast  .

Different developments after Independence

1 . ARC Report,1967

• Opined that the post of Governor came to be treated as consolation prize to burnt out politicians

2. Hargovind Pant Case, 1979

• Governor cant be regarded as an employee of Government of India  .  His is an independent constitutional office which is not subject to control of Government of India 

3. BP Singhal Case, 2010

• 5 Judge Constitutional Bench – objected to removal of 4 NDA appointed Governors immediately after UPA came to power
• Reason given by Government was , ‘they were not in sync with their policies & ideologies.’
• Court held that –  Governor cant be removed on ground that he is out of sync with the policies & ideologies of Union Government nor can he be removed on ground that Union Government has lost confidence in him

4. Punchhi Commission

• Governors should be given fixed tenure of 5 years & their removal should not be at will of the Government of India .
• Necessary to provide for impeachment of Governor on same lines as provided for impeachment of President

Debate : What to do in case no party gets clear majority ?

Constitution of India doesn’t deal with this situation directly . But, there are various cases which have dealt with this issue and given procedure to resolve this issue .

1 . Sarkaria Commission(reaffirmed by Rameshwar Prasad vs Union of India & reiterated by Punchhi Commission) 

• In case there is no single party having absolute majority , order of preference the Governor should follow in selecting a Chief Minister is as follows
  • If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
  • In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below: 
    • Group  of parties which had pre-poll alliance commanding the largest number.
    • Largest single party staking a claim to form the government with the support of others.
    • A post-electoral coalition with all partners joining the government 
    • A post-electoral alliance with some parties joining the government and the remaining supporting the government from outside.

2. Jagdambika Pal Case / Composite Test

• In Allahabad High Court Judgement of 1998 => go for Composite Floor Test between two contending claimants to Chief Ministership

3. SR Bommai Case

• Majority can be proved only on the floor of house and nowhere else
• Hence, Parties cant parade MLAs in Raj Bhavan to show their majority or support.

Subordinate Legislation 

MP/MLAs in Parliament / Legislative Assembly make the law only in a broad skeletal form. After that,  executive make Rules ie  minor technical details. This is known as Delegated Legislation / subordinate legislation.

April 2017 – Issue and Parliament’s Recommendation

• Issue is – Government doesn’t frame rules and as a result laws passed by Parliament remains inoperational.  Eg:  Benami Transactions Act which was enacted in 1988  to confiscate Benami properties remains inactive even after  25 years
• Parliament has recommended that government should make rules within six months of a law being passed. Process of rule-making should start in parallel with the drafting of the law.
• Implementation of these recommendations will ensure that the government cannot bypass the will of Parliament

Advantages of Delegated Legislation

Delegated Legislation is universally recognized and is both desirable and legitimate.

1 . Lack of Time

• Parliament and State Legislative assembly (SLA) are too busy with Legislative work .

2. Lack of Expertise

• Modern legislation are very complex dealing with subjects like   IT security, money laundering, clinical research etc.
• MP/MLAs cant be expected to have such a broad knowledge on all subjects .

3. More flexible

• Rules / Delegated legislation can be rapidly changed to meet the urgent requirements.

Anti-Arguments of Subordinate Legislation

• Administrators/ Bureaucrats who make rules are not responsible to public => does not take into account  interests of people. 
• Goes against Separation of Power
• Parliament does not have adequate facilities to scrutinize every piece and section of delegated legislation.  

Safeguards

1 . Parliamentary Safeguards

• Committee on Subordinate legislation => Checks whether it is inline with parent legislation or not

2. Judicial Safeguards

Judiciary can declare a delegated legislative acts as “invalid” if

• The provisions of subordinate legislation violates the Constitution
• Subordinate legislation is moving in a different direction than the parent act

3. Public scrutiny

• Public can also hold government responsible by keen scrutiny.

Steps to make Parliament more effective

Following steps can be taken to increase the effectiveness of Parliament :-

1 . Role of Parliamentary Committees

• Parliamentary Committees are kind of mini parliament in itself  .
• Larger number of bills should be referred to Parliamentary Committees as its membership is  representative of Parliament  .

2. Increasing Plenary Time

• Parliament is supposed to meet roughly 100 days per year but significant portion of that time is lost to parliamentary obstructionism . Data shows that number of working days have decreased
  • 140 days a year in the 1950s
  • 65 days over the past five years.
• NCRWC Recommendation : provision of 100 obstruction free days for parliamentary working can be made mandatory by law (each obstruction free day is defined as 5hour/day) 

3. Parliament Budget Office  (PBO)

• A Parliamentary Budget Office (akin to the US Congressional Budget Office)would help MPs provide effective oversight.

4. Shadow Cabinet

• Under such a system, opposition MPs track a certain portfolio, scrutinize its performance and suggest alternate programs.  

5. e-petition System

• Under this system, If 10 lakh people sign a petition , PM or minister concerned will have to reply to it.

6. Tackling delegated legislation

There is committee on Subordinate Delegation

• Parliament has made this committee to assure that Delegated Legislation are in broad conformity with Legislation .
• This Committee need to be strengthened.

7. Role of Speaker

• Speakers have failed spectacularly wrt upholding the rules of parliamentary conduct & punishing errant MPs

8. Increasing Women Representation

• Lok Sabha and the Rajya Sabha have not seen women MPs cross the 15% mark.
• Passage of the Women’s Reservation Bill (108th amendment) reserving 33% of all seats in Parliament and State legislatures for women.

Representation of Different Groups in Parliament

Women

• In 17th Lok Sabha , 78 MPs ie 14.6 % of total MPs were women & figure in Rajya Sabha was 12.7%.
• The increase in women representation is relatively small
• Even profile of women MPs reveals a distinctive bend towards Middle Class Professionals or Political Families with little/no links with women’s movements.

Why we need women in Politics ?

• To achieve the goal of Equality and Justice + India has signed CEDAW which includes discrimination in political field.
• Studies have shown that women are better decision makers , more empathetic towards weaker sections etc
• To represent needs of women in better way and make gender sensitive laws and policies

What can be done to improve their numbers ?

• 33% Reservation in Lok Sabha seats (such step in Panchayati Raj Institutions (PRIs) have shown good results)
• Start schemes to inculcate leadership qualities in women. Like Nai Roshani scheme for Minority women.
• Improve access to education to work

OBCs

• Post Mandal => 1980-90s => Powerful backward class movement led to the rise of regional parties like SP , RJD etc.
• Significant increase in representation of OBC MPs within Parliament

Religious Minorities

• Muslims remained very less represented

Age Structure

• Lok Sabha is getting older.
  1. Number of members aged 70 and above are increasing.
  2. MPs in the age group of 25 to 40 have declined from 26% to 13% from 1st to 16th Lok Sabha
• Irony is India has young population in the world represented by aged in the parliament

Sovereignty of Parliament in India

There is debate regarding question that what is the level of sovereignty enjoyed by the Parliament of India?

Unlike British Parliament , Indian Parliament is not supreme (sovereignty lies with people) . It has following limits on its sovereignty.

1 . Written Constitution

• Parliament had to operate within the limits prescribed by the Constitution
• In Britain – Constitution is not written  & there is nothing like fundamental law of the land

2. Federal System of Government

• Division of sovereignty between  Center and States
• In Britain – Unitary government & all powers with the center

3. System of Judicial Review

• Adoption of Independent judiciary  with power of the Judicial Review restricts the supremacy of the parliament

4. Fundamental Rights

• Article 13 prohibits State from making a law that either takes away totally or abrogates in part a Fundamental Right
• Britain – no codification of justiciable Fundamental Rights in constitution

In this regard , Indian Parliament is similar to the American legislature . But Indian Constitution is more sovereign than US Constitution because in India there is Procedure Established by Law unlike US where there is Due Process of Law 

Equality of seat among states in Rajya Sabha

Equality of seats among States in the Rajya Sabha is a principle, which found a great deal of acceptance in the Constituent Assembly. However, it could not be adopted because of the circumstances prevailing at that time. Is there a need to look afresh at this? 

Answer: In India, the allocation of seats to be filled by the representatives of States in the Council of States is done in proportion to the population of State.

• Constituent Assembly was in favour of equal representation of all states in Rajya Sabha. In spite of that, equal representation was not adopted because at that time the States of Indian Union were not independent entities having pre-existing rights or powers.
• As Sarkaria Commission pointed out
  • Nine States in India have just one member each in the Rajya Sabha
  • 2/3 majority ( for Constitutional Amendment)  = top 7 states & nominated members.
• Punchhi Commission also endorsed equality of representation 
• All the Federal Polities give equal representation to states irrespective of  size and population . Eg US = 2 members per state in Senate .

But the problem is that in the era of coalition politics, the interests of parties take precedence over the interests of the States.

So there are concerns whether even after giving equal representation, the behaviour of representatives of those States in the council will be according to the interests of State and not interests of their party.

Side note : Two special powers with Rajya Sabha

Art 249	Can  authorise Parliament to make laws on subject in State list (2/3 votes)
Art 312	Can authorise Parliament to create new All India Service  (2/3 votes)

Importance of Rajya Sabha and Should it be removed

Article deals with important debate in Indian polity ie Importance of Rajya Sabha and Should it be removed ?

Importance of Rajya Sabha

Federal Chamber	Strong ideological role to play in Federal polity of India =>  representatives of each state represent and protect interest of their states
Revising Chamber	As a Second Chamber, it has the mandate to secure a second sober look at hasty legislation.
Deliberative Chamber	– Rajya Sabha takes pride in the quality of debates it has held ever since its inception. – 12 Members noted for their contribution to literature, science, art and social service are nominated to RS
Chamber of Continuity	Rajya Sabha is a permanent Chamber, not subject to dissolution  which is needed in a Parliamentary System to meet the legislative and constitutional contingency at a time when the popularly elected House may be under dissolution
Representation to eminent members	Provides  for representation of eminent society members via nomination who otherwise may not participate in elections.

Arguments for removing Rajya Sabha

• It stalls progress. Same point was raised by Professor Shibban Lal Saksena in  Constitutional Assembly.

• Rajya Sabha has become parking spot for politicians not able to win their Lok Sabha seats.

• Considered to be a delaying house, which prolongs the bill passing procedure.

• Seats are bought and votes are sold vitiating the whole political atmosphere because of the limited electoral base.

• Allotment of seats in Rajya Sabha to states on the basis of population &  which is against Federal principles. Control over few big states is more than enough to scuttle the voice of numerous smaller states  .

Side Topic : Why certain powers not given to Rajya Sabha?

Rajya Sabha is elected by the MLAs and not directly by the people. Therefore,  Constitution stopped short of giving certain powers to the Rajya Sabha.  Members of Lok Sabha  are directly elected by the people and they are given  the crucial powers of removing a government and controlling the finances.

Legislative Procedure in Parliament

This article deals with ‘Parliament – Legislative Procedure in Parliament .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Legislative Procedure in Parliament

Legislative procedures same in both the houses.

Bills are of two kind – Public Bill & Private Bill

1 . Public Bill

• Introduced by Minister
• Reflects policies of government
• Greater chance of approval
• Its rejection can lead to No Confidence Motion
• Requires 7 days notice
• Drafted by concerned Department with help of Law Ministry

2. Private Bill

• Introduced by any Member
• Reflect stand of opposition party
• Lesser chance of approval
• No such implication on its rejection
• Requires one month notice
• Responsibility of member concerned

It is very difficult to get Private Bill Passed

• Only 14 private member’s bills have been passed in Parliament’s history and last one of them was in 1970 . This was the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968.

Bills can also be classified in other way

Ordinary Bill	Concerned with any matter other than financial
Money Bill	Concerned with financial matters like taxation, public expenditure
Financial Bill	Concerned with financial matters but different from Money Bill
Constitutional Amendments	Seeks to amend the Constitutional Provisions

1 . Ordinary  Bill

Introduced by	Any Member
Introduced in	Any House
Stages to pass	5 in each House

First Reading

• Bill is introduced by reading its Title and Objective
• Published in gazette of India

Second Reading

Has three substages

Stage of General Discussion	– Printed copies of bill are distributed to all members – Principles of Bill & its Provisions are discussed generally but details are not discussed and then referred to Select Committee or Joint Committee .
Committee Stage	– Usual practice is to send it to Select Committee – Committee examines the Bill thoroughly & in detail, clause by clause – It can amend Provision but without altering principles underlying it .
Consideration Stage	– House considers Provisions of Bill clause by clause – Each clause is discussed and voted upon separately – Amendment can be done here.

Third Reading

• In this Stage, Bill should  be accepted or rejected in full and no amendments are allowed
• If Bill is passed by Majority, then it goes to other house

Bill in Second House

In other House,  it goes through all three readings and then put to vote

There are  possibilities

Possibility	Result
May pass the Bill	Deemed to be passed & send to President
1. May Reject it 2. Mayn’t  take any decision for 6 months 3. May pass it with Amendment and return to 1st House for reconsideration . But 1st house Rejects proposed Amendments	– Results in Deadlock – To resolve Joint Sitting of two houses and bill put to vote – If passed by Simple Majority, then it is deemed to be passed

Assent of President

After it is passed by both Houses , it is sent to President for its approval and President has three options

May give Assent to it	Bill becomes Act
May withhold his Assent	It ends and not becomes Act.
May send it back for reconsideration	If both Houses again pass it with or without Amendment, he has to give his assent –  Suspensive Veto

Joint Sittings

• A deadlock is deemed to have taken place  after a bill has been passed by one House and transmitted to the other House
  • if the bill is rejected by the other House;
  • If Second House pass it with Amendment and return to 1st House for reconsideration . But 1st house Rejects proposed Amendments
  • If other house doesn’t take any decision for more than six months 

In the above three situations, the President can summon both the Houses to meet in a joint sitting for the purpose of deliberating and voting on the bill.

• Joint Sitting is  applicable to
  • Ordinary  bills or
  • financial bills only

• And not to
  • Money bills : Lok Sabha has overriding powers
  • Constitutional amendment bills : bill must be passed by each House separately.

• Speaker of Lok Sabha presides over a joint sitting

• Quorum : one-tenth of the total number of members of  two Houses.
• Governed by the Rules of Procedure of Lok Sabha and not of Rajya Sabha.

• If the bill in dispute is passed by a majority of the total number of members of both the Houses present and voting in the joint sitting, the bill is deemed to have been passed by both the Houses. 

So far Joint Session was conducted for 3 times.

1. Dowry Prohibition Bill 1960
2. Banking Service Commission (Repeal) Bill, 1977
3. Prevention of Terrorism Bill 2002 (POTA) 

2. Money bills

Prerequisite about Money Bill 

• Article 110: Defines what is Money Bill
• It relates only (6 matters) to following things 
  1. Imposition, abolition ,alteration or regulation of any of the tax
  1. Borrowing of money by Union government
  1. Custody of Consolidated Fund & Contingency Fund 
  2. Appropriation of money out of Consolidated Fund
  3. Declaration of  any expenditure charged on Consolidated fund of India
  4. Receipt of money on account of Consolidated Fund of India or Public Account of India

Money bill should  contain  only  matters  listed under  article  110  (1).  If  a  bill  is  a  combination  of  any  of  the  above  and  some  other  provisions  not incidental  to  those  matters,  it cannot  be  called  a  Money  Bill

Who decides	Speaker of Lok Sabha (& not challengeable) Our Constitution follows the British procedure . However, there is a key difference. House of Commons appoints two senior members who must be consulted before the Speaker gives the certificate. In India, the Speaker makes the decision on her/his own.
Introduced in	Lok Sabha only
Introduced by	Minister only with permission of President

Introduced in Lok Sabha  (only) . Then pass through first three readings (same as Ordinary Bill)  and after passing moved to Rajya Sabha

Rajya Sabha has very limited Power

• Can’t reject or amend bill ,can only make recommendations. Lok Sabha can accept recommendation or pass it otherwise and then Bill send to President for assent
• Should pass bill within 14 days. If not , Bill is deemed to be passed

Due to lesser power of Rajya Sabha wrt Money Bill, when ruling party doesn’t enjoy majority in Rajya Sabha, they try to label Bill as Money Bill to circumvent Rajya Sabha.

President also has limited power and can

• Give Assent to Bill –  Generally this happens because Bill is introduced with his prior permission
• May not take any decision
• But cant send back Bill for reconsideration

Issue : Circumventing Upper  House through Money Bill  Strategy

• Recently  Opposition  alleged  that  Government  was  eroding  Legislative  Powers  of  Rajya  Sabha  by  deliberately introducing crucial  bills  as Money  Bills.  
  • 2017 Budget : Government brought about 40 amendments through Money Bill Route  , many of which are related to several other laws like
    • Merging eight tribunals and the changing of rules for appointments
    • Remove the cap of 7.5 % of net profits for corporates to donate to political parties
    • Give greater powers to tax officials
  • 2016: Important  bills like   Aadhar Bill, 2016 was labelled as Money Bill.

However,  the  Constitution  makes  it  abundantly  clear  that  Money  bills  should  contain  only  6 matters  listed under  article  110  (1).  If  a  bill  is  a  combination  of  any  of  the  above  and  some  other  provisions  not incidental  to  those  matters,  it cannot  be  called  a  money  bill.

• Speaker,  while  certifying  a  bill  as  Money  Bill,  is  in  effect  depriving  the  Rajya  Sabha  of  its  Legislative Power  to  disapprove  a  Bill.  There  is  no  remedy  lying  with  Rajya  Sabha  

• Mohd Saeed Siddiqui vs State of UP (2014) :Supreme Court =>  decision of Speaker “that Bill in question is Money Bill is final  ”.

• But  Constitution Bench in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha (2007), ruled that SC can interfere when  Speaker’s choice is grossly illegal

3. Financial  Bills

• Deals with fiscal matters i.e. Revenue & Expenditure

Financial Bill(1)	Art117(1)
Financial Bill(2)	Art117(3)

• Money Bill is also Financial Bill but because of importance of those matters other category is given to them

Financial Bill(1)

What	Bills that not only contains matters related to Article 110 but some other matters too
Similarity To Money bill	– Can be introduced only in Lok Sabha – Can be introduced only on recommendation of President
Similarity To Ordinary Bill	– Can be rejected or amended by Rajya Sabha – In case of deadlock Joint Sitting can be called President can send it back for reconsideration

Financial Bill(2)

What	Relating to provisions involving Consolidated Fund not mentioned in Article 110
Special Features	It can’t be passed by either House of Parliament unless President has recommended to House for consideration of Bill
Other features	Rest all features similar to Ordinary Bill

4. Budget in Parliament

• Term Budget is nowhere mentioned in constitution
• Mentioned term is Annual Financial Statement (Article 112)
• Article 112 of Constitution deals with it

Budget contains following

• Estimates of  Revenue & Capital Receipts
• Ways & means to raise Revenue
• Estimates of Expenditure
• Details of Actual Receipts & Expenditure of closing years & reasons for Deficit or Surplus
• Economic & Financial policy of coming year i.e taxation ,spending program etc

Earlier , Government of India used to  present two Budgets

Railway budget	Presented by Railway Minister
General budget	By Finance Minister

Separation was done in 1921 on recommendations of Acworth Committee Report (British legacy). But , two Budgets were again merged into one in 2017  by NDA Government.

Constitutional Provisions regarding Budget

• President shall lay before Houses of Parliament estimated receipts & expenditure every financial year
• No Demand for Grant shall be made  except in recommendation of President
• No money shall be withdrawn from Consolidated Fund except under Appropriation made by Law
• No tax shall be levied or collected except by Authority of Law
• Estimates of Expenditure embodied in Budget shall show separately Expenditure Charged on Consolidated Fund & Expenditure made from Consolidated Fund
• Budget shall distinguish expenditure on Revenue Account from other Expenditure

Charged Expenditure on Consolidated Fund

Following consist of Charged Expenditure

1. Emolument and Allowances of President, Vice President , Deputy Chairman of RS, Speaker & Deputy Speaker of Lok Sabha,  CAG , Members of UPSC
2. Salaries , Allowances & Pension of Judges of Supreme Court + Pensions of Judges of High Courts
3. Any sum required to satisfy any Judgement ,decree or award of any Court or Tribunal
4. Any expenditure declared by Parliament to be Charged

(Note : Salary of Governor is not Charged on Consolidated Fund)

Stages in enactment of Bill

Stage 1 : Presentation of the Budget

• Budget is presented by Finance Minister on first working day of February with the Budget Speech in Lok Sabha.  Then, laid before Rajya Sabha which can only discuss it and has no power to vote on Demand for Grants

Stage 2 : General Discussion

• Begins a few days after its presentation
• In both the Houses of Parliament
• Lasts for 3-4 days
• Lok Sabha  can discuss the Budget as a whole or on any question of principle involved . BUT
  • No Cut  Motion can be moved
  • Budget cannot be submitted to Vote of the House

Stage 3 : Scrutiny by Departmental Committees

• When General discussion is over , Houses are adjourned for 3-4 weeks . 24 Departmental Standing Committees of Parliament examine and discuss in detail Demand for Grants for the concerned Ministers and prepare reports . Reports are then submitted to both houses for consideration
• Note : Standing Committee System introduced in 1993, expanded in 2004 . It makes Parliamentary Financial control over the Ministries much more detailed , close , in depth and comprehensive

Stage 4 : Voting on Demands for grants 

Lok Sabha takes up voting on Demand for Grant . Presented ministry wise . Demand becomes Grant only after it has been duly voted.

Important points :

1. Voting in Demand for Grant is the exclusive power of LS . RS has no power .
2. Voting is confined to the votable part of the Budget . Expenditure Charged on Consolidated Fund of India is not submitted to vote . It can only be discussed.

Cut Motions

Members of Parliament can discuss the details of the Budget and can also move Motions to reduce any demand. Three such Cut Motions

Policy Cut Motion	– Represents the disapproval of the policy underlying the demand – States that amount of the demand be reduced to ₹ 1
Economy cut motion	Represents that amount of the demand be reduced by a specified amount ( which may be either lump sump reduction in the demand or omission or reduction of an item in the demand )
Token cut motion	Reduces the amount of demand by ₹ 100 , ventilating a specific grievance that is within the sphere of responsibility of the GoI

Conditions to be satisfied the cut motion

• Relate to one demand only
• Be clearly expressed . No arguments or defamatory statements
• Confined to one matter only
• No suggestions for amendment or repeal of existing laws
• Not refer to matter that is not of primary concern to Union government
• Not relate to expenditure charged on Consolidated Fund of India
• Not relate to matter under adjudication by the court
• Not raise a question of Privilege
• Not revive a matter on which discussion has already taken place in same session

Significance of the cut motion

• Concentrated discussion of specific demand for grant
• Upholding the principle of responsible government by probing the activities of the government

Not of much utility in practice

• Only moved and discussed in the house
• Not passed as government enjoys the majority support

Their passage in Lok Sabha amount to want of Parliamentary confidence in government and may lead to resignation

In total 26 days for voting on demands => on last day speaker puts all the remaining demands to vote and disposes them whether discussed or not => GUILLOTINE

Stage 5 : Passing of the Finance Bill

• Finance Bill is introduced to give effect to the Financial Proposals of Government of India for the following year
• Unlike Appropriation bill , amendments can be moved in case of Finance bill
• Finance Act legalises the income side of the budget and completes the process of settlement of the budget