Articles 168 to 212 in Part VI of the Constitution deals with the State Legislatures.
- The Legislature of every State consists of a Governor and a Legislative setup.
- Legislature in certain States (6 States) like Maharashtra, Karnataka, Bihar, Uttar Pradesh, Telangana and Andhra Pradesh are Bicameral (consisting of 2 Houses). In the other States it is unicameral (consisting of one House). J&K legislative council, with a strength of 36 members, was created in 1957, but is now abolished.
- It is the popular House of the State. Members are chosen by direct election on the basis of adult suffrage from territorial constituencies (Article 170).
- The member strength varies between 60 and 500. However certain States like Sikkim, Goa, Mizoram and Arunachal Pradesh have less than 60 members.
- The Governor may nominate one Anglo-Indian to the Assembly, if the community is not adequately represented in the assembly.
- Reservation of seats has been provided for SCs & STs on the basis of their population.
- According to Article 172, the duration of Assembly is normally 5 years. But it may be dissolved earlier by the Governor.
- Its term may also be extended by one year at a time by Parliament during National Emergency, though this can in no case be extended beyond 6 months after the proclamation has ceased to operate.
- Legislative assembly alone has power to originate money bills. Legislative council can make only recommendations in respect of changes it considers necessary within a period of fourteen days after receiving the money bills from the Assembly. The Assembly can accept or reject these recommendations.
Powers and Functions
- It can make laws on any subject provided in the State List. It can also make a law on a subject of the Concurrent List in case it is not in conflict with a law already made by the Parliament.
- It has control over the State Council of Ministers. Its members may ask questions to the Minister, introduce resolutions or motions, and may pass a vote of censure to dismiss the Government. The Ministry is collectively responsible to the Assembly. The defeat of the Ministry in the Assembly amounts to the passing of a vote-of-no-confidence against it.
- It controls the finances of the State. A money bill can originate only in the Assembly and it is taken as passed by the Legislative Council after a lapse of 14 days after reference made to it by the Assembly. It may pass, reject the demands or reduce their amount implying adoption or rejection of the budget and thereby leading to the victory or defeat of the Government. Thus, no tax can be imposed or withdrawn without the approval of the Legislative Assembly.
- It has constituent powers too. According to Article 368, a bill of constitutional amendment first passed by the Parliament shall be referred to the States for ratification. It is here that the Assembly has its role to play. It has to give its verdict by passing a resolution. It is also provided that the President shall refer to the Assembly of the concerned State a bill desiring alteration in its territory for eliciting its views in this regard before he recommends that such a bill be introduced in the Parliament.
- The Assembly also elects its own Speaker and Deputy Speaker and may remove them by a vote of no confidence. It takes part in the election of the President of India. It considers reports submitted by various independent agencies like the State Public Service Commission, Auditor-General, and others.
Speaker & Deputy Speaker
- Every Legislative Assembly chooses two members of the Assembly to be the Speaker and the Deputy Speaker respectively whenever these offices become vacant. They vacate their offices if they cease to be the members of the Assembly. The Speaker or the Deputy Speaker as the case may be resigns his office by writing to the Deputy Speaker in the case of the Speaker and to the Speaker in the case of the Deputy Speaker.
- Removal: They may be removed from office by a resolution of the Assembly passed by an effective majority. No resolution for the purpose of the removal of the Speaker or the Deputy Speaker is moved unless at least 14-days notice is given of the intention to move such a resolution. While any resolution for the removal of the Speaker from the office is under consideration, the Speaker, though he is present, will not preside over such a meeting.
- The Speaker is vested with powers to ensure orderly discussion in the House, to enforce the rules of procedure, to control disorder and to take disciplinary action against members indulging in unruly behavior.
Parliament’s Control over State Legislature
- There are many restrictions on the powers of the State Legislature, which make them subservient to the will of the Parliament. The restriction on the powers of the State Legislatures are as follows:
- State Legislatures can neither legislate on an item of the Union List nor a residuary subject.
- Though it can enact laws on a subject mentioned in the Concurrent List, it is Central law, which shall prevail and to the extent to which the State Law is violative of Central law it will be voided.
- Article 249 provides that Rajya Sabha may pass a special resolution by two thirds majority of members, present and voting, to transfer any item from the State List to the Union or Concurrent Lists for the period of one year on the plea that it is expedient in the national interest.
- There are some categories that require that a bill passed by the State Legislature shall be reserved by the Governor for the consideration of the President. Bills dealing with compulsory acquisition of private property, being derogatory to the powers of the High Court, or seeking imposition of tax on a commodity ‘essential’ by an act of Parliament, or any other bill likely to conflict with some Union law, already in force fall within this category.
- The State Legislatures cannot override the veto of the President.
- There are some kinds of bills that cannot be introduced in the State Legislatures without the prior permission of the President. Bills seeking to impose restrictions on trade, commerce or intercourse with other States or within the State fall within this category.
- The President is empowered to declare a state of emergency in the country without consulting the States. But once such an emergency has been declared, the Parliament is empowered to legislate on the subject mentioned in the State List.
Legislative Council (Article 169)
- Parliament may by Law create or abolish Legislative Council.
- It can be created, if the Legislative Assembly of the State passes a resolution to the effect by special majority.
- It is not an Amendment to the constitution and therefore it can be passed like an ordinary piece of Legislation
- Article 171 contains various categories of members according to this:
- 1/3rd of its members is elected by Legislative Assembly
- 1/3rd by local bodies
- 1/6th nominated by the Governor
- 1/12th is elected by teachers of 3 years standing in the State not lower in standard than secondary school.
- 1/12th by university graduates of 3 years Standing and residing within the State.
- Nominated by Governor are from among those who have distinguished themselves in literature, science, art, co-operative movement and social service.
- The maximum strength of the Legislative Council can be 1/3rd of the total membership of the Legislative Assembly, but in no case less than 40 (Legislative Council of J&K has 36 members).
- Parliament has the final powers to decide about its composition.
- It is not subject to dissolution, But 1/3rd of its members retire on the expiry of every 2nd year.
- Bihar, Karnataka, Maharashtra, Telangana, Andhra Pradesh and Uttar Pradesh have two houses, that is, these States have a Legislative Council also.
- Article 173 mentions the qualifications of members as:
- A citizen of India.
- Not less than 25 years of age for the Legislative Assembly and not less than 30 years of age for Legislative Council.
- Possesses such other qualifications as may be prescribed by the Parliament.
- Not hold any office under the Union or State Governments.
- Article 190: No person shall be a member of both Houses of State Legislative and if anyone gets elected to both Houses, he has to vacate one seat.
- No person can become a member of the Legislature of 2 or more States.
Powers and Functions of Legislative Council
- As regards with its powers, the Legislative Council plays a more advisory role.
- A Bill, other than a Money Bill, may originate in either House of the Legislature.
- Over legislative matters it has only a suspensive veto for a maximum period of 4 months. 3 months in the first instance and 1 month in Second instance. In other words, the Council is not even a revising body like Rajya Sabha it is only a dilatory chamber or an advisory body.
- Over financial matters, its powers are not absolute. A Money Bill originates only in the Assembly and the Council may detain it only for a period of 14 days.
- As similar to the case of the Parliament at the Centre, there is no provision for a joint sitting of both the Houses of the States Legislature to resolve a deadlock between them, over legislative matters, if any. Thus, the Legislative Council is only a subordinate component of the Legislature.
The Advocate General (Article 165)
- In India, an Advocate General is a legal adviser to a State Government.The post is created by the Constitution of India and corresponds to that of Attorney General of India at the federal or central or Union Government level. The Advocate General of the State is a constitutional post and is an Authority duly appointed under Article 165 of the Constitution of India.
- The Advocate General is appointed by the Governor of the State and holds office during the pleasure of the Governor.
- A person who is qualified to be appointed as a judge of the High Court is appointed as the Advocate General for the State.
- The office of Advocate General is the Supreme Law officer of the State.
- It is the duty of the Advocate General to advise the Government of the State upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred upon him by or under the Constitution of India or any other law for the time being in force.
- The Advocate General has the right to speak in, and otherwise take part in the proceedings of, any Committee of the Legislature of which he may be named as Member. But he shall not be entitled to vote.
- The Advocate General and his office defends and protects the interest of the State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decision.
- Under Article 1 of the Constitution, the territory of India comprises three categories of territories:
- Territories of the States
- Union territories
- Territories that may be acquired by the Government of India at any time.
- At present, there are twenty-eight States, nine union territories (including newly added- J&K and Ladakh) and no acquired territories.
- The States are the members of the federal system in India and share a distribution of power with the Centre.
- The union territories, on the other hand, are those areas which are under the direct control and administration of the Central government. Hence, they are also known as ‘centrally administered territories.
- The union territories have been created for a variety of reasons. These are as follows:
- Political and administrative consideration—Delhi and Chandigarh.
- Cultural distinctiveness—Puducherry, Dadra and Nagar Haveli, and Daman and Diu.
- Strategic importance—Andaman and Nicobar Islands and Lakshadweep.
- Special treatment and care of the backward and tribal people—Mizoram, Manipur, Tripura and Arunachal Pradesh which later became States.
Administration of Union Territories
- Articles 239 to 241 in Part VIII of the Constitution deal with the union territories. Even though all the union territories belong to one category, there is no uniformity in their administrative system. Every union territory is administered by the President acting through an Administrator appointed by him.
- An administrator of a union territory is an agent of the President and not head of State like a governor.
- The President can specify the designation of an administrator; it may be Lieutenant Governor or Chief Commissioner or Administrator. At present, it is Lieutenant Governor in the case of Delhi, Pondicherry and Andaman and Nicobar Islands and Administrator in the case of Chandigarh, Dadra and Nagar Haveli, Daman and Diu and Lakshadweep.
- The President can also appoint the Governor of a State as the Administrator of an adjoining Union Territory. In that capacity, the Governor is to act independently of his council of ministers. The Union Territories of Pondicherry (in 1963) and Delhi (in 1992) are provided with a legislative assembly and a council of ministers headed by a Chief minister.
- The remaining five union territories do not have such popular political institutions. But, the establishment of such institutions in the union territories does not diminish the supreme control of the President and Parliament over them.
- The Parliament can make laws on any subject of the three lists (including the State List) for the union territories. This power of Parliament also extends to Puducherry and Delhi, which have their own local legislatures.
- This means that the legislative power of Parliament for the union territories on subjects of the State List remains unaffected even after establishing a local legislature for them. But, the legislative assembly of Puducherry can also make laws on any subject of the State List and the Concurrent List.
- Similarly, the legislative assembly of Delhi can make laws on any subject of the State List (except public order, police and land) and the Concurrent List. The President can make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, and Daman and Diu.
- In the case of Puducherry also, the President can legislate by making regulations but only when the assembly is suspended or dissolved. A regulation made by the President has the same force and effect as an act of Parliament and can also repeal or amend any act of Parliament in relation to these union territories.
- The Parliament can establish a high court for a union territory or put it under the jurisdiction of the high court of the adjacent State. Delhi was the only union territory that has a high court of its own (since 1966), but after the enactment of the Jammu and Kashmir Reorganisation Act, 2019, both the Union territories Jammu & Kashmir and Ladakh have a high court.
- The Bombay High Court has jurisdiction over two union territories—Dadra and Nagar Haveli, and Daman and Diu.
- Andaman and Nicobar Islands, Chandigarh, Lakshadweep and Puducherry are placed under the Calcutta, Punjab and Haryana, Kerala, and Madras High Courts respectively. The Constitution does not contain any separate provisions for the administration of acquired territories. But, the constitutional provisions for the administration of union territories also apply to the acquired territories.
Special Provisions for Delhi
- The 69th Constitutional Amendment Act of 1991 provided a special status to the Union Territory of Delhi, and redesignated it the National Capital Territory of Delhi and designated the administrator of Delhi as the Lieutenant Governor. It created a Legislative Assembly and a Council of Ministers for Delhi.
- Previously, Delhi had a Metropolitan Council and an Executive Council. The strength of the assembly is fixed at 70 members, directly elected by the people. The elections are conducted by the Election Commission of India. The assembly can make laws on all the matters of the State List and the Concurrent List except the three matters of the State List, that is, public order, police and land. But, the laws of Parliament prevail over those made by the Assembly.
- The strength of the Council of Ministers is fixed at ten per cent of the total strength of the assembly, that is, seven—one Chief Minister and six other ministers. The Chief Minister is appointed by the President (not by the Governor).
- The other ministers are appointed by the president on the advice of the Chief Minister. The ministers hold office during the pleasure of the President. The council of ministers is collectively responsible to the assembly.
- The Council of Ministers headed by the Chief Minister aid and advise the Lt. Governor in the exercise of his functions except insofar as he is required to act in his discretion. In the case of difference of opinion between the Lt. Governor and his ministers, the Governor is to refer the matter to the President for decision and act accordingly.
- When a situation arises in which the administration of the territory cannot be carried on in accordance with the above provisions, the President can suspend their operation and make the necessary incidental or consequential provisions for administering the territory.
- In brief, in case of failure of Constitutional machinery, the President can impose his rule in the territory. This can be done on the report of the Governor or otherwise. This provision resembles Article 356 which deals with the imposition of President’s Rule in the States.
- The Lieutenant Governor is empowered to promulgate ordinances during recess of the assembly. An ordinance has the same force as an act of the assembly. Every such ordinance must be approved by the assembly within six weeks from its reassembly. He can also withdraw an ordinance at any time.
- But he cannot promulgate an ordinance when the assembly is dissolved or suspended. Further, no such ordinance can be promulgated or withdrawn without the prior permission of the President.