State Legislature: Composition, Functions and Privileges

This article discusses the state legislature with detail on its composition, functions and privileges while also stating the differences between a State structure and the Union Prerogatives.

The essence and purpose of the State Legislature is to formulate laws and introduce relevant bills. There are various powers, privileges that are provided to the members of the State Legislative Assembly which are analogous to the members of the Parliament, however, these powers and functions are limited to that particular State.

Article 168 to 212 of the Constitution of India discusses the relevant details with regards to important constituents and requirements within the State Legislative Assembly.

Introduction

The Constitution of India dispenses that every state shall have a legislature which can be bicameral or unicameral legislature along with the Governor.[1] A Bicameral legislature is when a State has two distinct law-making Houses/chambers, Vidhan Sabha (Legislative Assembly) and Vidhan Parishad (Legislative Council) to formulate laws or pass budgets.[2]

There are six Indian states at present that are bicameral in nature, which is Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh. Bicameral Legislature, however, is not considered as effective as the unicameral legislature. The Parliament can introduce or abolish this second chamber, in case the Legislative Assembly of that state has passed a resolution into that effect by a special majority.[3]

A State Legislature that has one house/ chamber, known as Vidhan Sabha (Legislative Assembly) is a unicameral legislature.[4] The powers of both the central and states governments are delegated, the centre deals with subjects of national importance such as military and external affairs whereas the state government deals with matters of internal security- such as local government, public health, infrastructure, land, agriculture etc.[5]

Qualification required for membership in the State Legislative Assembly / Legislative Council

An individual should be a citizen of India, more than 25 years of age to become a member of the Legislative Assembly and more than 30 years of age to become a member of the Legislative Council. The essential condition included for becoming a member of the state legislature is that the candidate should be a voter from any of the constituencies of the state. [6]

Composition

• Legislative Assembly (Vidhan Sabha)

The Composition of the Legislative Assembly as per the Constitution (Seventh Amendment) Act, 1956, states that the number of members should be in consonance to Article 333 of the Constitution. The Legislative Assembly of States has the requisition that the members should not be more than five hundred, and not less than sixty and candidates are chosen by direct election from territorial constituencies in the State[7].

Clause 2 of Article 170 states that there should be a division of every state into territorial constituencies, and the ratio between the population of each constituency and the allocation of seats shall be practicable and similar throughout the State. There are however a few exceptions having less than 60 members. States of Goa (40 members), Sikkim (32 members), Mizoram (40 members) and UT of Puducherry (33 members).

The duration of the Legislative Assembly has been stated under Article 172 of the Indian Constitution. The working of the Legislative Assembly is for a time span of five years and begins from its first meeting. However, there can be an extension of the specified tenure during National Emergency.

The extension can be applied for a maximum period of one year. The extension, however, should not exceed six months after proclamation has ceased to exist. [8]

• Legislative Council (Vidhan Parishad)

The total number of members in the Legislative Council should not exceed one-third of the total members in the Legislative Assembly of that State. However, there is a proviso to this, that the total members in the Legislative Council of that State shall not be less than 40.[9] The Composition of the Legislative Council can be bifurcated into these following categories[10]:

1. One-third of total members of the Legislative Council should be elected by electorates comprising of members of district boards, municipalities and other local authorities, as prescribed by the Parliament, in accordance with the law.
2. One-twelfth of the legislative council members shall be elected by electorates, members who have been a resident of the same state for the time span of at least three years and graduates of any university within the territory of India.
3. One-twelfth of the total members of the legislative council should be elected by electorates engaged in the profession of teaching for the time span of three years under the educational institution, within the state.
4. One-third shall be elected by the Legislative Assemblies, and not one of them should be a member of the Legislative Assembly.
5. The remaining members shall be nominated by the Governor, in concordance with the law established.

The Vidhan Parishad is not subjected to dissolution, however, one-third of the members shall retire on the expiration of every second year, according to the provisions made by the Parliament on behalf of the same.[11]

Powers & Functions of State Legislature

• Legislative Functions

The State Legislature can formulate laws on the subject of State and Concurrent Lists. [12] However, in case there is any contradiction between the Union and State law, the law decided by the Parliament shall prevail. There can be an enactment of any bill on subjects of the State List, which would constitute an Act on the approval and signature of the Governor.

Bills can be of two types- Ordinary Bills and Money Bills. Ordinary bill can be introduced in either of the two houses in case the State Legislature is bicameral, however, the Money Bill has to initially be introduced in the Vidhan Sabha.

Provisions as to introduction and passing of Bills other than Money and Financial Bill can be introduced in either of the two houses in case the State Legislature is bicameral. It has to be agreed by both the Houses of the legislature.

In case of an Amendment to the Bill, it should be agreed by both the houses. A bill pending shall not lapse when there is a prorogation of that House. A bill which is pending in the Legislative Council of a particular State which is not passed by the Legislative Assembly shall not lapse upon the dissolution of the Legislative Assembly.

However, in case a bill is pending in the Legislative Assembly of a State, or if the bill passed by the Legislative Assembly is pending in the Legislative Council, the bill will lapse upon the dissolution of the Assembly.[13] After the bill is passed by both the Houses, it is sent to the Governor for his approval.

In case the bill is sent back for reconsideration, this bill can be passed again by Legislature, and the Governor has to give its assent [14] or reserve assent for the consideration of the President. [15]

In case of a Money Bill, the procedure is such that the bill can only be passed by the lower house which is the Legislative Assembly. After the bill has been passed by the Legislative Assembly the bill will be sent to the Legislative Council for any recommendations.

This bill should be returned back to the Assembly within the time span of 14 days from receiving the bill. To accept or deny this recommendation is upon the discretion of the Assembly. The same bill after being sent to the Council and the Council having a time span of fourteen days to pass the bill, in case there is a failure on the end of the Council, then it is deemed to be passed by both the Houses.[16]

• Financial Powers

The State Legislature has control over the finances of the State. A money bill can only be introduced in the Vidhan Sabha.[17] The Money bill is inclusive of expenditure that is authorised by the government, imposition or abolition of taxes, borrowing, etc.[18]

Money bill cannot be introduced by a private member. It has to be introduced by a Minister on the recommendations of the Governor. In case of any confusion with regards to the certification of that particular bill being a money bill, the Speaker of the Vidhan Sabha would determine the same.

This money bill after being passed by the Vidhan Sabha needs to be sent to the Vidhan Parishad. This bill needs to be returned within the time span of 14 days, with, or without any recommendations. The Vidhan Sabha may accept or reject these recommendations. After these stages are completed, this bill is sent to the Governor for his assent.

Recently, few state governments of Bihar, Rajasthan and Madhya Pradesh have declared a one-time cash transfer for the migrant workers, due to the COVID-19 pandemic. UP government, in particular, has announced the provision of maintenance allowance of 1000 for all returning migrants, who are required to quarantine. [19]

The Governor of Kerala, recently signed an Ordinance issued by the State government, to override a High Court decision on deferment of payment of salary to government employees for six days every month applicable from April to August 2020 due to the event of financial downfall faced by the State due to the COVID-19 pandemic.[20]

• Amendment Functions

A bill with regards to Constitutional Amendments cannot originate in the State Legislature. This bill can be initiated in either House of the Parliament by a majority of the total membership of that House present and voting.

However, in case of amendment in any federal subject, the Parliament will also require to be ratified by the Legislature of not less than one half of the States. [21]

Privileges stated under the Constitution

• Freedom of Speech and publication

Similar to the powers stated under Article 105(1) for Members of Parliament of freedom of speech and expression and under clause (2) that no members of the Parliament will be held liable in any proceeding before any Court for anything said or any vote given by him.

It further mentions that no individual will be held liable for any publication of any report, paper, votes or proceedings if the publication is made by the parliament or any authority under it.

Article 194 of the Constitution of India states the same privileges for a State legislative. This absolute privilege can be used by the concerned members only in the premises of the parliament and anything said outside the premise would be implied as defamatory.

MSM Sharma v. Shri Sri Krishna Sinha and others[22]

The petitioner, in this case, was the editor of a newspaper in Patna called ‘English Daily Newspaper’. He published a report on the proceedings of the Bihar Legislative Assembly although the report was said to be removed by the speaker. The Legislative Assembly declared it breach of privilege on the part of the editor.

Initially, he was held guilty but later, he took the defence that under Article 19 (1) (a), he had a right to freedom of speech. However, the court denied the argument, and stated that Article 19(1)(a) is a general provision and that Article 194 is a special provision.

In a situation where both these articles come in conflict to each other, the latter will prevail. It was concluded that a general provision cannot overrule special provision. It was also stated that in case both Articles 19(1)(a) and 194, are in conflict the rule of Harmonious Construction should be applicable.

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P[23]

In this case, the UP Legislative Assembly issued a legal warrant against the Home Minister, on the grounds of contempt of the House. The Home Minister applied a writ of Habeas Corpus under Article 32 on the ground that the detention was violative of his fundamental right, under Article 22(2).

The Supreme Court ordered this release in accordance with Article 22(2). The Home Minister was not presented before the magistrate within the time span of 24 hours post-arrest or detention, this gave rise to Article 22(2). It this case, the opinion given was that Article 105 and Article 194 cannot supersede fundamental rights.

The members of the parliament have been granted absolute power in relation to freedom of speech and expression unlike the fundamental rights for the citizens. Article 194(3) mentions that the laws need to be defined by the parliament regarding the powers, privileges and immunities of the members of the legislative assembly and similar powers have been defined for the members of the Parliament in Article 105 (3).

• Salaries and allowances of Members of the Legislative Assembly

This provision states that the members of the Vidhan Sabha and Vidhan Parishad are entitled to receive salaries and allowances which are determined by the Legislature of the State by law from time to time. [24]

Recently, The Salaries and Allowances of Ministers (Amendment) Ordinance, 2020 was promulgated, which amends the Salaries and Allowances of Ministers Act, 1952. The Ordinance reduces these allowances provided by the Act, by 30% for a period of one year for Prime Minister, Council of Ministers, Ministers of State and Deputy Ministers at different rates.[25]

The Governor of a State has been entrusted with a similar power as entrusted to the President under Article 123 to promulgate Ordinances during recess of Parliament. The Governor can also issue Ordinances, just like the President. When the legislature is not in session, the Governor can issue Ordinances on State subjects.

This ordinance needs to be laid down before the State Legislature and it ceases to exist or be in operation after the lapse/ expiration of six weeks, unless it has been rejected by that State Legislature earlier. [26] Powers of the Speaker of the Legislative Assembly of a State has been entrusted within Article 178. These powers are similar to the powers granted to the Speaker of the Lok Sabha, stated under Article 93 of the Indian Constitution.

Conclusion

The State Legislative Assembly of any State possess exclusive power to formulate laws in respect to any matters enlisted in List II (State List) and List III (Concurrent List) in the Seventh Schedule.[27] However, the powers conferred upon the State Government with regards to control over the State and Concurrent Lists, is not completely justified.

In reality, the decision of the centre is considered to be superior where control by the central government is considered to be expedient in the public interest by the Parliament of India. For example- industry is a subject on the state list, the centre has been granted the power to legislate over industries, in case the Parliament considered it expedient in the public interest.

In cases of Concurrent powers, where a state introduces a law which is considered contradictory to any provision of law enacted by the Union Government, then the latter shall prevail making the former null and void. [28]

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[1] Article 168: Constitution of Legislatures in States, The Constitution of India 1949, Available Here

[2] The Hindu, “What is Bicameral Legislature?” Available Here

[3] Article 169, The Constitution of India 1949

[4] Article 168, The Constitution of India 1949

[5] Article 246, The Constitution of India 1949

[6] Article 173, The Constitution of India 1949

[7] Article 170, The Constitution of India 1949

[8] Article 172 (1) Proviso, The Constitution of India 1949

[9] Article 171, The Constitution of India 1949

[10] Article 171 (3), The Constitution of India 1949

[11] Article 172, The Constitution of India 1949

[12] Article 246, The Constitution of India 1949

[13] Article 196, The Constitution of India 1949

[14] Article 200, The Constitution of India 1949

[15] Article 210, The Constitution of India 1949

[16] Article 198, The Constitution of India 1949

[17] Article 198, The Constitution of India 1949

[18] Article 199, The Constitution of India 1949

[19] Madhunika Iyer, Migration in India and the impact of the lockdown on migrants, Available Here

[20] The Hindu, KC Gopakumar “COVID-19: HC stays Kerala govt order on employees’ salary cut” (April 28, 2020), Available Here

[21] Article 368, The Constitution of India 1949

[22] AIR 1959 SC 395

[23] AIR 1952

[24] Article 195, The Constitution of India 1949

[25] PRS, The Salaries and Allowances of Ministers (Amendment) Ordinance, 2020, Available Here

[26] Article 213, The Constitution of India 1949

[27] Article 246, The Constitution of India 1949

[28] Harvard Institute for International Development, Nirupam Bajpai and Jeffrey D. Sachs, “The State of State Government Finances in India”

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1. Constitutional Law; Notes, Case Laws And Study Material
2. Indian Parliament: Composition, Functions, Privileges & Inter-relation