Constitutional provisions regarding creation of legislative council
- India has a bicameral system of legislature.
- Just as Parliament has two Houses, the states can, if they choose, have a Legislative Council in addition to the Legislative Assembly.
- The Constitution provides for this option under Article 171.
- Under Article 171 of the Constitution, the Legislative Council of a state shall not have more than one-third of the total number of MLAs of the state, and not less than 40 members.
- Under Article 169, a Legislative Council can be formed “if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting”.
- Parliament can then pass a law to this effect.
Current status legislative councils in India
- Currently, seven states have Legislative Councils in India as below:
- Apart from these, Tamil Nadu’s then DMK government had passed a law to set up a Council but the subsequent AIADMK government withdrew it after coming to power in 2010.
- Andhra Pradesh’s Legislative Council, set up in 1958, was abolished in 1985, and then reconstituted in 2007.
- Proposals to create Councils in Rajasthan and Assam are pending in Parliament.
- Also, Jammu & Kashmir is an exception to article 171 because as per Section 50 of the state’s Constitution, the Assembly has 87 members and the Legislative Council 36.
Election of legislative council members
- All the members of the Legislative Council are either indirectly elected or nominated by the Governor. Let us take a look at the way the Legislative Council is constituted.
- One-third of the members of this House are elected by the Legislative Assembly from amongst persons who are not its members.
- One-third of its members “are elected by the local bodies like Municipalities or District Boards or any other local authority as specified by the law of the Parliament.
- One-twelfth of the members are elected by graduates of at least three years standing.
- One-twelfth of the members are elected by teachers of secondary schools having at least three years experience.
- About one-sixth of the members are nominated by the Governor from among persons possessing. Special knowledge and experience in the field of art, science, literature, social service and cooperative movement.
Qualifications and tenure of the members of legislative council
- Any Indian citizen who is 30 years of age or more having such other qualifications as prescribed by the Parliament can become a member of the Vidhan Parishad.
- A person cannot simultaneously be a Member of Parliament and State Legislature.
- As with Rajya Sabha MPs, the tenure of a Member of the Legislative Council (MLC) is six years, with one-third of the members retiring every two years.
- The Legislative Council like the Council of States is a permanent chamber, not subject to dissolution.
- The Legislative Council elects its Chairman and Deputy Chairman from amongst its members.
Legislative council Vs Rajya Sabha
- The legislative powers of the Councils are limited.
- Unlike Rajya Sabha which has substantial powers to shape non-financial legislation, Legislative Councils lack a constitutional mandate to do so.
- Assemblies can override suggestions/amendments made to legislation by the Council.
- Again, unlike Rajya Sabha MPs, MLCs cannot vote in elections for the President and Vice President. The Vice President is the Rajya Sabha Chairperson; an MLC is the Council Chairperson.
Legislative council Vs Legislative assembly
- Theoretically the powers of the Legislative Council are coequal with the Assembly.
- But in reality the Council is a weak partner of the Legislative Assembly.
- Ordinary bills can originate in any chamber of the legislature.
- A bill in order to become an Act must be approved by both the chambers and receive the assent of the Governor.
- If the Legislative Council disagrees with a bill passed by the Legislative Assembly, then the bill must have a second journey, from the Assembly to the Council.
- But ultimately the views of the Assembly shall prevail.
- The Council has no powers to advise a bill passed in the Assembly.
- It can only delay the passage of the bill for 3 months in the first instance and for one month in the second.
- It can delay the passage of the bill maximum for a period of four months.
- There is no provision of joint sitting as in case of disagreement in Parliament over ordinary bills.
- In the ultimate analysis the Legislative Council is a dilatory chamber so far as ordinary legislation is concerned.
- In the domain of finance it has almost no powers.
- Like the Council of States, it enjoys a subordinate position in financial matters.
- Money Bills originate only in Assembly.
- After they are passed in the Assembly it is sent to the Council and the Council can keep it maximum for a period of 14 days.
- If it does not pass it within that period, it is deemed to have received the approval of that House.
- The Council can control the executive by way of putting questions to ministers, by raising debates and adjournment motions to highlight the lapses of the government but it cannot throw a government out of power.
- The Legislative Assembly in addition, to the powers discussed above enjoys the power to move vote of no confidence which can force the government to resign.
- In case of controlling the executive the final say lies with the Legislative Assembly.
Arguments in favour of and against legislative councils
Among the arguments in its favour:
- A second House can help check hasty actions by the directly elected House, and also enable non-elected individuals to contribute to the legislative process.
- The makers of the Constitution have deliberately given a secondary position to the Council of States so that both the chambers in the state do not compete with each other for supremacy.
- The purpose was to accommodate various professional interests in the Legislative Council, who through their experience can act as the friend, philosopher and guide of the Legislative Assembly.
The arguments against the idea:
- A Legislative Council can be used to delay legislation, and to park leaders who have not been able to win an election.