This article is written by Ms. Sushree Surekha Choudhury from Kiit School of Law. The article aims to explain the difference between legislative council and legislative assembly in state legislatures. It talks about the constitutional provisions regarding the same and aims to give a conceptual understanding on the subject.
It has been published by Rachit Garg.
Table of Contents
Introduction
- The Indian legislature is bicameral in nature. Bicameral legislature or Bicameralism refers to the system of practice where the legislature is divided into two units or houses, i.e., an upper house and a lower house. Bicameralism can be seen in practice at both the central level as well as the state level. However, merely six states in India have adopted bicameralism, yet. Rest of the states follow unicameralism. Thus, it is evident that, it is entirely the volition of the states to whether or not adopt bicameralism. At the central level, the upper house is known as Rajya Sabha (Council of States) and lower house is known as Lok Sabha (House of People). In the similar manner, the upper house is known as the legislative council (Vidhan Parishad) and lower house is known as the legislative assembly (Vidhan Sabha) for bicameral states. Thus, in India, six states have both, the legislative council and the legislative assembly. All other states and union territories which follow unicameralism, have a sole legislative body, i.e., the legislative assembly. Five union territories have no legislative body at all and are directly governed under the Union of India (the Central Government).that the concept of a second chamber was introduced for the first time.
- The Government of India Act, 1919 stated that the Governor General shall be assisted by two chambers of legislature – council of states and house of assembly.
- Further, the Government of India Act, 1935 made the council of states a permanent chamber, meaning that it cannot be dissolved. The tenure of members were for 9 years with one-third of them retiring every 3 years.
- Thus, the second chamber which made Indian legislature bicameral was adopted under the Government of India Act, 1919 and continued to be known by these names until 1947.
- Post independence, the union legislature was named as the Parliament with its houses renamed as council of states and house of people.
The Government of India Act, 1935 further made provision for a federal legislature which was divided into a federal assembly and council of states. Later in time, this came to be known as a legislative assembly and a legislative council which was adopted by Indian states.
Bicameralism in India
History of bicameralism in India
Origin of bicameralism in India traces back to the times of British rule in the country. Briefly, the history of adopting bicameralism in India goes as:
- It was for the first time in the year 1773 via the Regulating Act of 1773 that provisions were made for the appointment of a Governor General and it was further assisted by a Governor General’s council.
It was during the Montagu-Chelmsford Reforms (Indian Councils Act, 1919)
Constitution of India and the legislature
The Constitution of India has embedded in its provisions, a detailed description about bicameralism in India. Part VI, Chapter III, Article 168-212 talks about the formation/creation of state legislatures, their composition, manner of election, abolition and dissolution, members- their powers and duties, etc.
Article 168 is the generic provision, which speaks about the constitution of state legislatures. It verifies the states that have bicameral legislature, namely, Bihar, Maharashtra, Karnataka, Andhra Pradesh, Telangana and Uttar Pradesh and that the rest of the states shall have only the legislative assembly.
Article 169 speaks about the abolition or creation of legislative councils. For states which have bicameral legislature, can abolish their legislative council and for states that wish to have a bicameral legislature, can opt for creation of a legislative council. In either case, a special majority resolution has to be passed by the legislative assembly of that state. Special majority is obtained when the majority of all the members and two-thirds majority of the members present and voting, give their assent in favour of the motion.
Article 170 and Article 171 speak about the composition of the legislative assembly and the legislative council, respectively.
Article 172 specifies the duration of the state legislatures and Article 173 speaks about the qualifications required for becoming a member in state legislatures.
Article 174 gives power to the Governor to summon sessions of the houses, prorogue either house and dissolve the legislative assembly. The legislative council, however, is a permanent body and cannot be dissolved.
What is the legislative assembly
Every state and union territory (except those directly governed by the Union Government) of India has a legislative assembly. It is the house of state legislature where legislative power truly resides. Any bill or proposition is always presented in the legislative assembly. Though it is then passed to the legislative council, the legislative assembly is not bound by the recommendations of the legislative council. Thus, the powers of legislative councils are advisory in nature and ultimately, the decisions are made by the legislative assembly. This is why it is said to be the house where power truly resides. For states having unicameral legislature, and who want to adopt bicameral legislature by creating a legislative council, will have to present the motion for the same in the legislative assembly. For states which have a legislative council but wish to abolish it, too, have to present their motion in the legislative assembly. It is only when a special majority is obtained in the legislative assembly that the creation/ abolition takes effect. The minimum number of members that must constitute a legislative assembly is 60 members and an upper limit of 500 members have been set. However, for certain states like Goa, Sikkim, etc., the lower limit has been relaxed.
Criteria for membership in the legislative assembly
As has been provided under Article 173 of the Indian Constitution, following are the mandatory prerequisites/ eligibility criterion for membership in the legislative assembly:
- He/she must be an Indian citizen,
- He/she must have attained an age of 25 years or above,
- He/she must have been enrolled as a voter in the state whose legislative assembly he/she wish to become a member of,
- He/she must not hold any office of profit under Government of India or any state government, with certain exceptions,
- He/she must not be an undischarged insolvent,
- He/she must not be declared to be of unsound mind by any competent court or authority,
- He/she must not have obtained foreign citizenship/ nationality,
- He/she must not be disqualified by any other criteria as has been laid by the Parliament, and
- Any other eligibility criteria as may be prescribed by the State Government from time to time.
A legislative assembly has a tenure period of 5 years, after which it is to be dissolved. It is not a permanent house unlike the legislative council and thus, is dissolved every 5 years. This time period can only be extended for a maximum period of 1 year, in case of proclamation of an emergency and it must be dissolved within 6 months from the date on which the emergency ceases to exist. After dissolution of each tenure, elections are held for appointing members of legislative assembly. These members are directly elected from voting by voters of that constituency, through the mechanism of universal suffrage and secret ballot. The Governor of a State is vested with powers to nominate members of Anglo-Indian Community as MLAs to ensure them adequate representation.
What is the legislative council
A legislative council is the upper house of a state legislature. It can be said to be similar to Rajya Sabha in the manner of exercising its power but its powers are rather limited as compared to powers of Rajya Sabha. It is advisory in nature. It can recommend amendments to bills sent for approval by legislative assembly but the legislative assembly is not bound by those recommendations, the legislative assembly may or may not implement those changes. It can only delay the passing of a bill by retaining it for a period of 3 months (non-money bills) in first instance and for 1 month when the same bill is sent again for reconsideration after which it shall be deemed to be assented by the legislative council. It can retain a money bill only for a period of 14 days and the legislative assembly enjoys enormous power when money bills are in question. It is a permanent body, which means it cannot be dissolved unlike the legislative assembly. It can however, be abolished as per provisions of Article 169 of the Indian Constitution.
Criteria for membership in the legislative council
As has been provided under Article 173 of the Indian Constitution, following are the mandatory prerequisites/ eligibility criterion for membership in the legislative council:
- He/she must be an Indian citizen,
- He/she must have attained an age of 30 years or above,
- He/she must not be holding an office as a Member of Parliament,
- He/she must not hold any office of profit under Government of India or any State Government, with certain exceptions,
- He/she must not be an undischarged insolvent,
- He/she must not be declared to be of unsound mind by any competent court or authority,
- He/she must not have obtained foreign citizenship/ nationality,
- He/she must not be disqualified by any other criteria as has been laid by the Parliament, and
- Any other eligibility criteria as may be prescribed by the State Government from time to time.
The number of members in a legislative council must be equal to one-third of the total number of members in the legislative assembly. These members are partly elected and partly nominated by the Governor from experts in the field of art, literature, science, social services and cooperative management.
The elected members are elected by the following:
- One-third of the total members are elected by local authorities,
- One-twelfth members are elected by university graduates of that state,
- One-twelfth members are elected by teachers,
- One-third members are elected by MLAs from among those who are not members of the legislative assembly,
- Remaining members are nominated by the Governor.
These members are elected for a term of six years, one-third of whom retire every two years. There must be a minimum 40 members in every legislative council at all times.
Difference between legislative assembly and legislative council
| Criteria | Legislative Assembly | Legislative Council |
| Number of members | Minimum: 60 membersMaximum: 500 members | Minimum: 40 membersMaximum: There has been no upper limit set here. |
| Dissolution | It is dissolved every 5 years. | It cannot be dissolved as it is permanent in nature. |
| Composition | It is in accordance with Article 170 of the Indian Constitution. | It is in accordance with Article 171 of the Indian Constitution. |
| House | It is the lower house of the state legislature. | It is the upper house. |
| Election | Members are directly elected through universal suffrage and secret ballot. | Members are elected indirectly through proportional representation and nomination by the Governor. |
| Presiding officer | Speaker is the presiding officer. | Chairman is the presiding officer. |
| Presence | Every Indian state and union territory (except the ones governed directly by the Union Government) have a legislative assembly. | Only six Indian states have a legislative council- Bihar, Maharashtra, Karnataka, Uttar Pradesh, Andhra Pradesh and Telangana. |
| Age cap | Must be 25 years or above. | Must be 30 years or above. |
| Tenure | MLAs bear office for a term of 5 years. | MLCs bear office for a term of 6 years. |
Conclusion
Indian democracy follows bicameralism, both, at the central level and at state level. Even so, states are given complete discretion to decide whether to adopt bicameralism or unicameralism. Only six Indian states have bicameral legislatures while other states have unicameral legislatures. All union territories, except the ones directly governed by the Union Government also have unicameral legislatures. State legislatures as such, have a legislative assembly and a legislative council (in case of bicameralism). While the legislative council can be said to have limited powers, the legislative assembly is vested with enormous powers. Both showcase a host of differences when it comes to powers, qualifications of members, tenure of office and nature of office, etc. Despite the differences, both the houses work in harmony and complement each other’s work which results in effective governance of states.
Frequently Asked Questions (FAQs)
- By whom is the legislative assembly headed?
The Speaker of the legislative assembly is the head of the legislative assembly.
- By whom is the legislative council headed?
The Chairman of the legislative council is the head of the legislative council.
- Can the legislative assembly be dissolved?
Yes. The legislative assembly being a temporary body can be dissolved.
- What is the term period after which a dissolution can take place?
Dissolution of one tenure of legislative assembly is made every 5 years and the members retire too.
- Can the legislative council be dissolved?
No. The legislative council is a permanent body and a continuing chamber. It cannot be dissolved.
- Since a legislative council cannot be dissolved, are its members permanent?
No. Members of the legislative council hold office for a tenure of 6 years and one-third members retire every two years.
- What is the difference between Vidhan Sabha and Vidhan Parishad?
The legislative assembly is otherwise known as the Vidhan Sabha, it is the lower house of a state legislature. The legislative council is also called Vidhan Parishad and it is the upper house.
- Can the tenure of one legislative assembly be extended beyond 5 years?
A legislative assembly must be dissolved after expiry of 5 years. However, there is an exception to this provision, i.e., Proclamation of emergency. In such a situation, it can be extended for a maximum period of 1 year and when the emergency ceases, the legislative assembly must be dissolved within 6 months from the date on which the emergency ceased to exist.
References
- https://lawrato.com/civil-legal-advice/difference-between-legislative-assembly-and-legislative-council-171832
- https://www.jagranjosh.com/general-knowledge/difference-between-legislative-assembly-and-legislative-council-1621858153-1
- https://www.advocatekhoj.com/library/bareacts/constitutionofindia/171.php?Title=Constitution%20of%20India,%201949&STitle=Composition%20of%20the%20Legislative%20Councils
- https://www.advocatekhoj.com/library/bareacts/constitutionofindia/170.php?Title=Constitution%20of%20India,%201949&STitle=Composition%20of%20the%20Legislative%20Assemblies
- https://www.mapsofindia.com/my-india/india/how-is-an-mla-elected
- https://www.advocatekhoj.com/library/bareacts/constitutionofindia/172.php?Title=Constitution%20of%20India,%201949&STitle=Duration%20of%20State%20Legislatures
