Myth and reality about the upper house called the legislative council

The recent Legislative Council elections, known as Vidhan Parishad in Maharashtra, have been hotly contested. Maharashtra is one of the few states in the country to have this upper house of legislature besides Uttar Pradesh, Bihar, Andhra Pradesh, Telangana and Karnataka. Section 169 of the Constitution empowers Parliament to abolish the council in a state where it exists and to create one in a state where it does not. A state legislature must pass a special resolution for both creation and abolition.

Heritage, origin and debate in the constituent assembly

The system of two legislative chambers owes its origin to the Government of India Act of 1935. The Constituent Assembly debated at length the concept and need for a bicameral legislature. Some members felt that this would act as a brake on the tendency to legislate in haste and bring into governance the diverse opinions, particularly of those who do not have the means and the inclination to get involved in the hustle and bustle of electoral politics. The flip side was that it would dramatically increase government spending. There were also fears that party bosses would offer membership to their privileged few and those who lose election to the legislature.

Structure: constitutional provisions

The constitution states that a legislature will consist of the governor, the legislative assembly, and the legislative council where there is one. The total number of members of the council shall not exceed one-third of the total number of members of the legislative assembly provided that the minimum number of members is forty. They will be composed of members elected from local self-government constituencies, graduates and teachers, members elected by members of the legislative assembly and persons with special knowledge or practical experience in literature, science, art , etc. appointed by the governor.

It is a permanent body not subject to dissolution. A third of its members retire every two years.

Powers and operation of the council: non-monetary bills

In the case of a non-monetary bill passed by the assembly and sent to the council, the council may reject it or pass it with some amendments or take no action for three months. In this case, the assembly can pass the bill again with or without amendments made by the council and will then send it back to the council. This time, if it is rejected by the council or if no action is taken for a month or if it passes it with an amendment to which the assembly does not agree, the bill will be deemed adopted in the form in which it was adopted by the assembly. There is no such second trip provision for board-initiated bills. The journey of the bill, which originates and is voted on in council, ends when the assembly rejects it.

money bill

The finance bill cannot be tabled in council. In the case of a finance bill adopted by the assembly and sent to the council for its recommendations, the council must return the bill to the assembly with its recommendations. The assembly can then accept or reject all or part of the recommendations and the finance bill is then deemed adopted.
by both Houses. If the council does not return the invoice within fourteen days, then it will be
deemed adopted by both Houses. There is no second trip of the bill from assembly to council.

Strengths and weaknesses

  • An elected council member can become a minister

A minister must be an elected member of the legislature or legislative council. Although nothing in the constitution or any other law prohibits an appointed member from becoming a minister or chief minister, since he is a person not directly or indirectly elected by the people, a Such appointment is subject to legal challenge on the grounds that it attacks at the root of “the basic structure of the constitution” as it would be contrary to our representative parliamentary democracy. The Supreme Court of SR Chaudhuri vs State of Punjab & Ors has repeatedly stated that a person who has been appointed as a minister but is not a member of either of the two legislative chambers should be elected within six months. He did not declare elected or appointed to the council. Debates of the constituent assembly also indicate that no member expressly declared that appointed members should be part of the government.

  • No substantive legislative powers

It is clear from the discussion of the passing of bills that the council has no real substantive powers of law-making. Constitutional prescriptions make it a simple dilatory or consultative chamber. The will of the assembly is supreme and ultimately prevails.

  • Not eligible to vote in Presidential and Rajya Sabha elections

Elected members of both Houses of Parliament and only state legislatures are eligible to vote in the presidential election and elected members of only one state legislature are eligible to vote in the Rajya Sabha election pursuant to Articles 54 and 80(4) respectively.

  • No recourse to a joint meeting of the assembly and the council

The parliament has a joint sitting appeal from Loksabha and Rajya Sabha to resolve the disagreement between the two over non-monetary bills. Such a provision does not exist for both houses of the state legislature. Rajya Sabha has representatives from each state and thus assumes a federal character. It is therefore granted a better status than that of a mere delaying organ. As it is a Council of State, the question of its federal character does not arise. The constitution adopted the system based on the English Parliament Act 1911 in which the upper house (council) of the state gives way to the lower house (assembly) which represents the will of the people.

  • Ministry not accountable to council

Section 164(2) makes it clear that the cabinet is collectively responsible to the legislature. This in effect belittles the board.

  • No say in its abolition

Section 169 of the Constitution empowers parliament to abolish the council in any state where it exists and which requires a special resolution of the assembly. Curiously, therefore, the council has no say in its own abolition.

  • Appointed members and delay in their appointment

The constitutional prescription is for the appointment of persons with knowledge, etc. But in reality, political parties use or rather abuse this provision to favor those who are defeated in assembly elections or who are party workers or who are financially influential people.

Appointment of council members is at the governor’s discretion and there are delays in appointment despite requests from high courts. It defeats the noble purpose behind it and robs people of the benefit of their wisdom.

It is a debatable question what impact the councils have had on the quality of governance and law-making in any state relative to the money spent on them. This should be the point that state governments that have councils and those that do not but offer to have one should think about.



The opinions expressed above are those of the author.


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