Relevance of Legislative Councils

WHY IN NEWS:

• In July 2021, West Bengal assembly passed a resolution supporting an ad-hoc committee report that favoured the formation of a West Bengal legislative council or a Vidhan Parishad

ORGANIZATION OF STATE LEGISLATURE:

• Indian legislation follows a bicameral system at both the Centre and state level.
• In this set up, the state’s legislature can be divided into two wings – the legislative assembly and legislative council.
• Not all states follow a bicameral system.
• Currently, only six states – Uttar Pradesh, Telangana, Maharashtra, Karnataka, Andhra Pradesh and Bihar have legislative councils.
• In 2020, Andhra Pradesh Legislative Assembly passed the resolution for abolition of the Legislative Council >> This resolution is yet to be cleared by the Parliament of India to finally abolish the council.
• The legislative council (Vidhan Parishad) is the upper house (second chamber or house of elders), while the legislative assembly (Vidhan Sabha) is the lower house (first chamber or popular house).

CONSTITUTIONAL PROVISIONS

• Article 169 of the Constitution states that Parliament can abolish a Legislative Council (where it already exists) or create it (where it does not exist) by a simple majority, that is, a majority of the members of each House present and voting, if the legislative assembly of the concerned state, by a special majority, passes a resolution to that effect.
• This Act of Parliament is not to be deemed as an amendment of the Constitution for the purposes of Article 368 and is passed like an ordinary piece of legislation (i.e by simple majority).

COMPOSITION

• Unlike the members of the legislative assembly, the members of the legislative council are indirectly elected.
• The maximum strength of the council is fixed at one-third of the total strength of the assembly and the minimum strength is fixed at 40
• It means that the size of the council depends on the size of the assembly of the concerned state.
• This is done to ensure the predominance of the directly elected House (assembly) in the legislative affairs of the state.
• Though the Constitution has fixed the maximum and the minimum limits, the actual strength of a Council is fixed by Parliament

MANNER OF ELECTION

• Of the total number of members of a legislative council:
  • 1/3 are elected by the members of local bodies in the state like municipalities, district boards, etc.
  • 1/12 are elected by graduates of three years standing and residing within the state
  • 1/12 are elected by teachers of three years standing in the state, not lower in standard than secondary school
  • 1/3 are elected by the members of the legislative assembly of the state from amongst persons who are not members of the assembly, and
  • The remainder are nominated by the governor from amongst persons who have a special knowledge or practical experience of literature, science, art, cooperative movement and social service.
• Thus, 5/6 of the total number of members of a legislative council are indirectly elected and 1/6 are nominated by the governor.
• The members are elected in accordance with the system of proportional representation by means of a single transferable vote.
• The bonafides or propriety of the governor’s nomination in any case cannot be challenged in the courts.
• This scheme of composition of a legislative council as laid down in the Constitution is tentative and not final.
• The Parliament is authorised to modify or replace the same. However, it has not enacted any such law so far.

DURATION OF THE COUNCIL

• Like the Rajya Sabha, the legislative council is a continuing chamber, that is, it is a permanent body and is not subject to dissolution.
• But, one-third of its members retire on the expiration of every second year. So, a member continues as such for six years.
• The vacant seats are filled up by fresh elections and nominations (by governor) at the beginning of every third year.
• The retiring members are also eligible for re-election and re-nomination any number of times

POSITION OF LEGISLATIVE COUNCIL

• The constitutional position of the council as compared with the assembly can be viewed from two dimensions:
  • Spheres where council is equal to assembly.
    • Introduction of ordinary bills. However, in case of disagreement between the two Houses, the will of the assembly prevails over that of the council
    • Approval of ordinances issued by the governor
    • Selection of ministers including the chief minister. Under the Constitution the, ministers including the chief minister can be members of either House of the state legislature. However, irrespective of their membership, they are responsible only to the assembly.
    • Consideration of the reports of the constitutional bodies like State Finance Commission, state public service commission and Comptroller and Auditor General of India.
    • Enlargement of the jurisdiction of the state public service commission
  • Spheres where council is unequal to assembly:
    • Introduction and passage of a Money Bill
      • A Money Bill can be introduced only in the assembly and not in the council.
      • The council cannot amend or reject a money bill. It should return the bill to the assembly within 14 days, either with recommendations or without recommendations. The assembly can either accept or reject all or any of the recommendation of the council. In both the cases, the money bill is deemed to have been passed by the two Houses.
      • The final power to decide whether a particular bill is a money bill or not is vested in the Speaker of the assembly.
    • Passage of ordinary bill:
      • The final power of passing an ordinary bill also lies with the assembly.
      • At the most, the council can detain or delay the bill for the period of four months—three months in the first instance and one month in the second instance.
      • When an ordinary bill, which has originated in the council and was sent to the assembly, is rejected by the assembly, the bill ends and becomes dead
      • In other words, the council is not even a revising body like the Rajya Sabha; it is only a dilatory chamber or an advisory body.
    • Passage of Budget:
      • The council can only discuss the budget but cannot vote on the demands for grants (which is the exclusive privilege of the assembly).
    • Removal of council of ministers
      • The council cannot remove the council of ministers by passing a no-confidence motion.
      • This is because, the council of ministers is collectively responsible only to the assembly. But, the council can discus and criticise the policies and activities of the Government.
    • Election of President and Rajya Sabha Members:
      • The council does not participate in the election of the president of India and representatives of the state in the Rajya Sabha.
    • Ratification of Constitutional Amendments
      • The council has no effective say in the ratification of a constitutional amendment bill.
      • In this respect also, the will of the assembly prevails over that of the council
    • Existence of the council depends on the will of the assembly:
      • The council can be abolished by the Parliament on the recommendation of the assembly.

LEGISLATIVE COUNCIL VERSUS RAJYA SABHA

• Position of the council vis-a-vis the assembly is much weaker than the position of the Rajya Sabha vis-a-vis the Lok Sabha
• The Rajya Sabha has equal powers with the Lok Sabha in all spheres except financial matters and with regard to the control over the Government.
• On the other hand, the council is subordinate to the assembly in all respects. Thus, the predominance of the assembly over the council is fully established.
• Even though both the council and the Rajya Sabha are second chambers, the Constitution has given the council much lesser importance than the Rajya Sabha due to the following reasons:
  • Rajya Sabha reflect the federal element of Indian Polity:
    • The Rajya Sabha consists of the representatives of the states and thus reflect the federal element of the polity.
    • It maintains the federal equilibrium by protecting the interests of the states against the undue interference of the Centre.
    • Therefore, it has to be an effective revising body and not just an advisory body or dilatory body like that of the council.
    • On the other hand, the issue of federal significance does not arise in the case of a council.
  • The council is heterogeneously constituted.
    • It represents different interests and consists of differently elected members and also include some nominated members.
    • Its very composition makes its position weak and reduces its utility as an effective revising body.
    • On the other hand, the Rajya Sabha is homogeneously constituted.
    • It represents only the states and consists of mainly elected members (only 12 out of 250 are nominated).

RELEVANCE OF LEGISLATIVE COUNCILS

• It can keep an eye on hasty decisions:
  • It checks the hasty, defective, careless and ill-considered legislation made by the assembly by making provision for revision and thought.
• Ability to bring diverse voices into legislatures:
  • It facilitates representation of eminent professionals and experts who cannot face direct elections ((like artists, scientists).
  • The governor nominates one-sixth members of the council to provide representation to such people
• To formulate better and detailed discussed legislation.
  • Having a second chamber would allow for more debate and sharing of work between the Houses.
• Prevent autocracy:
  • It is argued that second house put a check on autocratic tendencies of the lower chambers. To vest the legislative powers with a popularly elected House alone may prove harmful to the people of the state as legislation may be arbitrary.
• Avoid a constitutional crisis:
  • If the chief ministerial candidate of a political party lost in assembly election, there exists a constitutional crisis as the party in power finds it difficult to choose the leader. In such situation presence of Legislative Council will
  • For ex: Uttarakhand witnessed a similar crisis, which led to Tirath Singh Rawat stepping-down as the chief minister.
• Reduce workload of legislative assembly:
  • Since the legislative assemblies are generally flooded with work, due to the rapid growth in the functions of a modern welfare state, a unicameral legislature cannot cope with the work and devote fully to the bills brought before it for enactment.
  • Legislative council lessens the burden of the lower House and enables assembly to fully concentrate on measures of greater importance

ARGUMENTS AGAINST LEGISLATIVE COUNCIL:

• It has a weaker position with no significant role:
  • The ultimate power of passing an ordinary bill is vested in the assembly. At the most, the council can detain or delay the bill for a period of four months
  • In other words, the council is not even a revising body like the Rajya Sabha; it is only a dilatory chamber or an advisory body
  • Keeping in view the council’s weak, powerless and insignificant position and role, the critics have described the council as a ‘secondary chamber’, ‘costly ornamental luxury’, ‘white elephant’, etc.
• A burden on the state budget:
  • For example: Opposing the formation of West Bengal legislative council, experts says that the formation of a legislative council in the state would put a burden of Rs 600-800 crore on the government exchequer.
• A back door entry to unpopular politicians:
  • The critics have opined that the council has served as a refuge for those who are defeated in the assembly elections.
  • It enabled the unpopular, rejected and ambitious politicians to occupy the post of a chief minister or a minister or a member of the state legislature.
• Superfluous and Mischievous:
  • If a majority of the members in the upper house belong to the same party which holds majority in the lower house, the upper house will become a mere ditto chamber.
  • On the other hand, if two different parties are in majority, the upper house will delay the bills for months unnecessarily. Thus its role may become nasty and obstructive.

PRACTICE QUESTION:

Q. ‘State legislative council acts as a check against potential impetuousness of electoral majorities in the legislative assembly’. Discuss.