Democracy at the State Level: Vidhan Sabha, Vidhan Parishad, and State Legislative Procedures

State Legislature

The state legislature is the cornerstone of a state's political system. Articles 168 to 212 in Part VI of the Constitution govern its organisation, composition, duration, presiding officers, procedures, privileges, and powers. While broadly modelled on Parliament, significant differences exist - especially regarding the relative powers of the two Houses and the absence of a joint sitting mechanism at the state level.

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India's state legislatures are not uniform. Most states follow the unicameral model, where the state legislature consists of the Governor and the Legislative Assembly (Vidhan Sabha) alone.

In bicameral states, the legislature additionally includes the Legislative Council (Vidhan Parishad). As of 2016, only seven states have bicameral legislatures:

• Andhra Pradesh, Telangana, Uttar Pradesh, Bihar, Maharashtra, Karnataka, and Jammu & Kashmir.

Key institutional facts:

• The Legislative Council is the upper house (house of elders), while the Legislative Assembly is the lower house (popular house).
• The 7th Amendment Act of 1956 provided for a Council in Madhya Pradesh, but no Presidential notification has been issued, so it remains unicameral.
• Tamil Nadu's Legislative Council was abolished in 1986. The state assembly passed a resolution in 2010 for revival, Parliament enacted the Tamil Nadu Legislative Council Act 2010, but a fresh assembly resolution in 2011 sought abolition of the proposed council before it was enforced.
• Andhra Pradesh has had its council created (1957), abolished (1985), and revived (2007) - illustrating the flexible constitutional provision.

Creation and Abolition of Councils

Parliament can create or abolish a Legislative Council only if the concerned state assembly passes a resolution with a special majority - a majority of total membership AND not less than two-thirds of members present and voting. Crucially, such an Act of Parliament is not deemed a constitutional amendment under Article 368 and is passed by simple majority.

The Constituent Assembly debated this; critics argued second chambers were unrepresentative, delayed legislation, and were financially wasteful. The flexible provision allows states to decide based on their own willingness and financial capacity.

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Legislative Assembly (Vidhan Sabha)

Strength: Members are directly elected by universal adult franchise. Maximum strength: 500; Minimum: 60. Exceptions:

• Arunachal Pradesh, Sikkim, Goa: minimum 30
• Mizoram: 40; Nagaland: 46
• Some members in Sikkim and Nagaland are indirectly elected.

Nominated Member: The Governor may nominate one Anglo-Indian member if that community is inadequately represented. Originally valid till 1960, it has been extended repeatedly. The 95th Amendment Act of 2009 extended this till 2020.

Territorial Constituencies: Each state is divided into constituencies such that the ratio of population to seats is uniform across the state. The term 'population' refers to the last published census figures.

Delimitation and Freeze:

• Readjustment of seats and constituency boundaries is done after each census by Parliament-authorised Delimitation Commissions (enacted in 1952, 1962, 1972, and 2002).
• The 42nd Amendment Act of 1976 froze the total seats and constituency divisions at 1971 levels till 2000.
• The 84th Amendment Act of 2001 extended the freeze till 2026, to encourage population-limiting measures. It also empowered delimitation based on the 1991 census.
• The 87th Amendment Act of 2003 shifted the delimitation basis to the 2001 census, without altering total seat numbers.

Reserved Seats: Seats for Scheduled Castes (SCs) and Scheduled Tribes (STs) are reserved in proportion to their population. This was originally valid till 1960 and has been extended; the 95th Amendment Act of 2009 extended it till 2020.

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Legislative Council (Vidhan Parishad)

Strength: Maximum = one-third of the total Assembly strength; Minimum = 40 (exception: J&K Council has 36 under its own state constitution). The actual strength is fixed by Parliament.

Manner of Election - Five Categories:

1. 1/3 elected by members of local bodies (municipalities, district boards, etc.)
2. 1/12 elected by graduates of three years' standing residing in the state
3. 1/12 elected by teachers of three years' standing (not below secondary school level)
4. 1/3 elected by members of the Legislative Assembly from among non-members
5. Remainder (1/6) nominated by the Governor from persons with special knowledge/experience in literature, science, art, cooperative movement, or social service

Thus: 5/6 are indirectly elected; 1/6 are nominated. Election is by proportional representation through the single transferable vote. The Governor's nominations cannot be challenged in courts.

This scheme is tentative - Parliament is authorised to modify it but has not done so yet.

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Legislative Assembly

• Normal term: 5 years from the date of its first sitting after general elections.
• Expiry of 5 years = automatic dissolution.
• Governor may dissolve it before the 5-year term ends.
• During a national emergency, Parliament can extend its term by one year at a time for any period, but not beyond six months after the emergency ceases.

Legislative Council

• A permanent body, not subject to dissolution.
• 1/3 of members retire every two years; each member serves a 6-year term.
• Vacancies filled by fresh elections and governor's nominations at the start of every third year.
• Retiring members are eligible for re-election/re-nomination any number of times.

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Qualifications

To be a member of the state legislature, a person must:

• Be a citizen of India.
• Make an oath/affirmation of allegiance to the Constitution and uphold India's sovereignty and integrity.
• Be at least 30 years of age for the Legislative Council and 25 years for the Legislative Assembly.
• Possess other qualifications prescribed by Parliament under the Representation of People Act, 1951:
  • Must be an elector for an assembly constituency in the concerned state.
  • Governor's nominees to the Council must be residents of that state.
  • Must belong to SC/ST if contesting a reserved seat (though SC/ST members may also contest general seats).

Disqualifications (Constitutional)

A person is disqualified if:

• They hold any office of profit under the Union or state (except ministerial office or offices exempted by the state legislature).
• Declared of unsound mind by a court.
• An undischarged insolvent.
• Not a citizen, or has voluntarily acquired foreign citizenship, or acknowledged allegiance to a foreign state.
• Disqualified under any law made by Parliament (Representation of People Act, 1951 adds: conviction resulting in 2+ years imprisonment, electoral offences, non-disclosure of election expenses, interest in government contracts, directorship in government-holding corporations, dismissal from government service for corruption, promoting enmity between groups, preaching social crimes like untouchability/dowry/sati).

Note: Preventive detention is not a disqualification.

Decision on disqualification: The Governor's decision is final, but he must obtain the Election Commission's opinion and act accordingly.

Disqualification on Ground of Defection (Tenth Schedule)

• Decided by the Speaker (for Assembly) or Chairman (for Council) - NOT the Governor.
• In Kihota Hollohan v. Zachilhu (1992), the Supreme Court held that the Speaker/Chairman's decision is subject to judicial review.

Oath or Affirmation

Every member must take an oath before the Governor (or his nominee) before sitting in the House - pledging faith to the Constitution, upholding India's sovereignty and integrity, and faithfully discharging duties. Without this oath, a member cannot vote or participate. Penalty for unauthorised sitting/voting: Rs 500 per day.

Vacation of Seats

A member vacates their seat in cases of:

• Double Membership: Cannot hold seats in both Houses simultaneously.
• Disqualification: Seat becomes vacant automatically.
• Resignation: Written to the Speaker/Chairman; takes effect upon acceptance.
• Absence: Absent for 60 consecutive days without permission.
• Other cases: Election declared void, expelled by the House, elected as President or Vice-President, or appointed as Governor of a state.

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Speaker of the Assembly

• Elected by the Assembly from among its members.
• Vacates office if: ceases to be a member; resigns by writing to the Deputy Speaker; or removed by a resolution passed by a majority of all then-members (14 days' advance notice required).

Key powers of the Speaker:

1. Maintains order and decorum - primary authority over proceedings.
2. Final interpreter of the Constitution, rules of procedure, and legislative precedents within the Assembly.
3. Adjourns the Assembly or suspends sitting for lack of quorum.
4. Does not vote in the first instance; exercises a casting vote in case of a tie.
5. Permits secret sittings on the leader of the House's request.
6. Decides whether a bill is a Money Bill - decision is final.
7. Decides disqualification of members under the Tenth Schedule (anti-defection).
8. Appoints chairmen of all Assembly committees; personally chairs the Business Advisory Committee, Rules Committee, and General Purpose Committee.

Deputy Speaker of the Assembly

• Elected by the Assembly after the Speaker's election.
• Vacates office under same three conditions as the Speaker (resignation goes to the Speaker).
• Acts as Speaker when that office is vacant or the Speaker is absent - with full Speaker's powers.
• The Speaker nominates a panel of chairmen to preside in absence of both Speaker and Deputy Speaker.

Chairman of the Council

• Elected by the Council from among its members.
• Vacates office under the same three conditions (resignation goes to the Deputy Chairman).
• Powers parallel the Speaker's, except the Chairman does not decide whether a bill is a Money Bill (that power rests exclusively with the Speaker).
• Salary charged on the Consolidated Fund of the State - not subject to annual vote.

Deputy Chairman of the Council

• Elected by the Council; vacates under same three conditions (resignation to Chairman).
• Acts as Chairman when that office is vacant or Chairman is absent.
• Chairman nominates a panel of vice-chairmen for further fallback presiding.

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• Summoning: The Governor summons each House from time to time. The maximum gap between two sessions must not exceed 6 months (i.e., the legislature must meet at least twice a year).
• Adjournment: Suspends sitting for hours/days/weeks. Adjournment sine die = indefinite suspension. Power rests with the presiding officer.
• Prorogation: Terminates the session. The presiding officer declares the House adjourned sine die; the Governor then issues a prorogation notification. The Governor can also prorogue a House in session.
• Dissolution: Applicable only to the Assembly (Council is permanent). Dissolution ends the life of the House; fresh elections follow.

Lapsing of Bills on Dissolution of Assembly

Quorum

Minimum members required for business: 10 or one-tenth of total membership (including presiding officer), whichever is greater. If no quorum, presiding officer must adjourn or suspend the meeting.

Voting

Most matters decided by simple majority of members present and voting. Special majority required only for specific matters (e.g., removal of Speaker/Chairman). The presiding officer does not vote in the first instance; casts a deciding vote in case of a tie.

Language

Official languages of the state, Hindi, or English may be used. The presiding officer may permit a member to speak in their mother tongue. States may discontinue English after 15 years from 1950 (special extensions: 25 years for Himachal Pradesh, Manipur, Meghalaya, Tripura; 40 years for Arunachal Pradesh, Goa, Mizoram).

Rights of Ministers and Advocate General

Every state minister and the Advocate General may speak and participate in the proceedings of either House or its committees (without voting rights), regardless of which House they belong to. A minister not a member of either House can still participate - and may remain a minister for up to 6 months without being a member.

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Ordinary Bills

• Can be introduced in either House by a minister or private member.
• Passes through three readings in the originating House, then transmitted to the second House.
• Bill deemed passed only when both Houses agree (with or without amendments).

Council's options on a bill passed by the Assembly:

1. Pass it without amendments.
2. Pass it with amendments and return it to the Assembly.
3. Reject it entirely.
4. Take no action (keep it pending).

Deadlock resolution: Unlike Parliament (which has a joint sitting), there is no joint sitting mechanism at the state level. Instead:

• If the Council rejects/amends unacceptably or does not act within 3 months, the Assembly may pass the bill again.
• If the Council again rejects/amends unacceptably or does not act within 1 month, the bill is deemed passed in the form passed by the Assembly the second time.
• Net delay the Council can impose: maximum 4 months (3 + 1).
• A bill originating in the Council and rejected by the Assembly simply dies - there is no recourse.

Governor's Assent

After passage, the bill is presented to the Governor, who may:

1. Give assent -> bill becomes an Act.
2. Withhold assent -> bill ends.
3. Return for reconsideration -> if re-passed (with or without amendments), Governor must give assent (only suspensive veto).
4. Reserve for Presidential consideration.

Presidential assent (when bill is reserved): President may assent, withhold, or return for reconsideration. If returned, the House(s) must reconsider within 6 months. Whether the President is obligated to assent to the re-passed bill is not clarified in the Constitution.

Money Bills

• Can be introduced only in the Assembly, only on the Governor's recommendation, only by a minister.
• After Assembly passage, transmitted to the Council, which:
  • Cannot reject or amend it.
  • Must return it within 14 days with or without recommendations.
  • Assembly may accept or reject any recommendations.
• If Council fails to return within 14 days -> bill deemed passed by both Houses.
• Net delay by Council: maximum 14 days.
• Governor: may assent, withhold, or reserve for Presidential assent - but cannot return a Money Bill for reconsideration.
• President (on reservation): may assent or withhold - but cannot return it for reconsideration.

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Areas Where Council Equals Assembly

• Introduction and passage of ordinary bills (but Assembly's will prevails in deadlock).
• Approval of Governor's ordinances.
• Selection and responsibility of ministers (ministers can be from either House, but accountable only to Assembly).
• Consideration of reports of constitutional bodies (State Finance Commission, SPSC, CAG).
• Enlargement of jurisdiction of the State Public Service Commission.

Areas Where Council is Subordinate to Assembly

1. Money Bills can only originate in the Assembly.
2. Council cannot amend or reject Money Bills.
3. Speaker alone decides if a bill is a Money Bill.
4. Assembly can override the Council on ordinary bills (Council is merely a dilatory body - max 4-month delay).
5. Council can discuss but cannot vote on demands for grants.
6. Council cannot pass a no-confidence motion against the Council of Ministers.
7. A Council-originated bill rejected by the Assembly simply dies.
8. Council does not participate in the election of the President of India.
9. Council has no effective role in ratification of constitutional amendment bills - Assembly's will prevails.
10. The Council's very existence depends on the Assembly - it can be abolished by Parliament on the Assembly's recommendation.

Council vs. Rajya Sabha: Why the Gap?

The Rajya Sabha protects federal interests, demanding robust powers. The Council has no federal rationale, hence it was given lesser powers aligned with democratic principles (Assembly = popular mandate prevails). The British model - where the House of Lords can delay but not block the House of Commons - was the inspiration.

Arguments Against the Council

• Unrepresentative, expensive, and a refuge for rejected politicians.
• Allows unpopular/ambitious politicians to become Chief Ministers or ministers.
• Described as 'secondary chamber', 'white elephant', 'costly ornamental luxury'.

Arguments for the Council

• Prevents hasty, careless, or defective legislation.
• Provides representation to eminent professionals, experts, and scholars who cannot face direct elections (through Governor's 1/6 nominations).

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Privileges are special rights, immunities, and exemptions that enable the legislature to function independently and with authority. They apply to:

• Each House collectively.
• Members individually.
• Ministers and the Advocate General of the state (as they may participate in proceedings).

Note: Privileges do not extend to the Governor.

Collective Privileges of Each House

1. Right to publish (and prohibit others from publishing) debates, reports, and proceedings.
   • The 44th Amendment Act of 1978 restored the press's right to publish true reports without prior permission (not applicable to secret sittings).
2. Right to hold secret sittings and exclude strangers.
3. Power to regulate its own procedure and adjudicate upon it.
4. Power to punish members and outsiders for breach of privilege or contempt (by reprimand, admonition, imprisonment; suspension or expulsion for members).
5. Right to immediate information about the arrest, detention, conviction, imprisonment, or release of a member.
6. Power to institute inquiries, summon witnesses, and send for papers and records.
7. Courts are prohibited from inquiring into House proceedings.
8. No arrest or legal process (civil or criminal) within the House precincts without the presiding officer's permission.

Individual Privileges of Members

1. Freedom from arrest in civil cases during session and 40 days before and after a session. (Not available in criminal cases or preventive detention.)
2. Freedom of speech - no member is liable in court for anything said or any vote cast in the House or its committees. Subject to constitutional provisions and House rules.
   • Article 211: No discussion on the conduct of Supreme Court or High Court judges in the discharge of their duties.
3. Exemption from jury service; may refuse to appear as a witness or give evidence when the legislature is in session.

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• No joint sitting at state level - unlike Parliament. Assembly overrides Council by passing bill a second time.
• Council is not a revising body like Rajya Sabha - it is dilatory (max 4-month delay on ordinary bills, 14-day delay on Money Bills).
• Defection disqualification decided by Speaker/Chairman, not Governor; subject to judicial review (Kihota Hollohan, 1992).
• Governor's veto on ordinary bills = suspensive veto (must assent if re-passed).
• Money Bills: Governor cannot return for reconsideration; President also cannot return (when reserved).
• Seat freezing: 42nd Amendment (1976) -> froze till 2000; 84th Amendment (2001) -> extended till 2026.
• 95th Amendment Act (2009) extended Anglo-Indian nomination and SC/ST reservation in assemblies till 2020.
• Bills originating in the Council and rejected by the Assembly simply die - no second-pass mechanism.
• Council's existence depends entirely on the Assembly - can be abolished by Parliament on Assembly's recommendation.