This article is written by Ms Sushree Surekha Choudhury from KIITT School of law. The article gives a thorough overview of the bicameral legislature in India. It talks in detail about the Legislative Council which is otherwise known as the upper house of a state legislature.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
India is a Secular, Democratic, Republic State. Three organs or ‘pillars’ of government, namely, the legislature, the executive and the judiciary help in the functioning of various administrative duties. It is pertinent to note that the media, which is considered as the fourth pillar of democracy in India, has gained recognition among lawmakers and policymakers in the country. All these pillars work on the basis of independence, natural justice and separation of powers, yet are united with the common goal of upholding democracy.
The legislature is a crucial pillar which takes charge upon a host of duties such as making laws, scrutinising the annual budget, power to amend the Constitution if need be, etc. In this article, we will learn about how the Indian government performs its administrative functions with the help of a bicameral parliament at the centre.
History of legislative councils in India
The present-day legislative council has its roots in the British era. The Regulating Act (1773) governed administration and it made provisions for appointing a the Governor-General and his council (Governor General’s Council). By 1853, when the Charter Act of 1853 was enacted, the members of Governor-General of India’s Council started to be called as legislative councillors. The Indian Councils Act was passed in 1861 and it renamed the Governor General’s Council to ‘Imperial Legislative Council’ or ‘Indian Legislative Council’ (ILC). During the Morley-Minto Reforms (Indian Councils Act, 1909) and Montagu-Chelmsford Reforms (Indian Councils Act, 1919) the concept of elections was introduced for the first time and the number of members in ILC increased pertinently. Thereafter, came the Government of India Act of 1935 and the present day bicameralism derives its root from here. It established a Federal Legislature which consisted of two houses – the federal assembly and the council of states. The council of states was a permanent body which could not be dissolved but one-third of its members retired every two years. This principle is still in existence for Rajya Sabha and legislative councils. Post-independence, the names were changed and the federal council came to be known as the Parliament with Rajya Sabha and Lok Sabha as its houses and state legislatures were set up for every state. The Indian legislature is bicameral. Bicameral legislature or bicameralism refers to a type of system which practices functioning through two houses of Parliament. The Indian legislature is bicameral at the centre, dividing it into the Lok Sabha (House of People) or the lower house and the Rajya Sabha (Council of States) or the upper house of the Parliament. Each house is entrusted with a host of powers and duties and they work unitedly to achieve common objectives. In a similar manner, certain states in India follow bicameralism whereas the others continue to be unicameral. Bicameral legislation are divided into Vidhan Sabha (Legislative Assembly) or the lower house and Vidhan Parishad (Legislative Council) or the upper house.
Currently, six Indian states have a legislative council. They are:
1. Uttar Pradesh Legislative Council
2. Maharashtra Legislative Council
3. Karnataka Legislative Council
5. Andhra Pradesh Legislative Council
6. Telangana Legislative Council
For better understanding, let us look at these state legislative councils in detail.
Uttar Pradesh Legislative Council
It is the biggest state legislative council in India. It currently has a total of 100 members, 90 out of which are elected by local authorities, graduates, teachers and MLAs and the remaining 10 have been nominated by the Governor of Uttar Pradesh. The Uttar Pradesh Legislative Council had been formed via the Government of India Act, 1935 and had its first meeting in 1937. It has been a permanent body ever since with one-third of its members retiring every two years.
Andhra Pradesh Legislative Council
It came into existence in 1958 but was abolished in 1980. Thereafter, it was revived by the President’s assent in 2007 and is then active till today. Although the state’s legislative assembly has passed a resolution for abolition yet again in October 2021, the same has not yet been assented or approved. It comprises 58 members at present.
Bihar Legislative Council
One of the oldest legislative councils of the nation, Bihar Legislative Council has been existing since 1912 and is active till today. 75 members form this council.
Karnataka Legislative Council
With a number of 75 MLCs at present, the Karnataka Legislative Council has been in existence since 1907. It was established as the Mysore Legislative Council which is now known as Karnataka Legislative Council.
Maharashtra Legislative Council
After independence and post abolition of Bombay Legislative Council, the province of Bombay was disintegrated and two separate states were formed – Gujarat and Maharashtra. While Gujarat chose to be unicameral, Maharashtra reformed its legislative council. It currently has 78 members.
Telangana Legislative Council
After the division of Andhra Pradesh into two different states- Andhra Pradesh and Telangana, both the states reformed their legislative councils as they opted for bicameralism. The Telangana Legislative Council was then established in 2014 and currently has 40 members which is the minimum limit of members in a state legislative council.
Role of a Legislative Council
- The role of the state legislative council is essentially advisory in nature. Its core function is to give suggestions, and recommendations and hold discussions on matters, bills and policies presented to it or that have been sent to it for suggestions, recommendations and discussions by the legislative assembly.
- Bills presented in the legislative assembly are sent to the legislative council for approval.
- However, in case the council does not give its approval, the assembly has the power to reconsider it. In this case, the legislative assembly resends the bill to the legislative council.
- The legislative assembly can send the bill again to the legislative council for consideration, with or without implementing the amendments that may have been suggested by the legislative council. When the bill is sent for the second time, and if it has already been passed by the assembly, the bill shall be deemed to be passed by the council if it retains the bill for any longer than a month.
- When the bill is sent for the first time, the council can retain the bill for a period of up to 3 months and not beyond that.
- The powers of the legislative council are limited. It has no right to participate in the formation or dissolution of the government. A no-confidence motion cannot be initiated in a legislative council as it can be, in a Rajya Sabha.
- A legislative council can delay the procedure of passing a bill. It can retain the bill for a period of 3 months in case of a non-money bill and 14 days in case of a money bill but it cannot stop the legislative assembly from passing if the legislative assembly decides to pass it. When a non-money bill is resent to the council, it can retain the bill for a period of 1 month after which the bill shall be deemed to have been passed by the council.
- The legislative council plays a crucial role in recommending changes to the bills presented. It is mandatory for the legislative assembly to send a bill to the legislative council before passing it, though its recommendations are not binding.
- An ordinary bill can be introduced in the legislative council. However, the ultimate decision is made by the legislative assembly.
- It can recommend changes to a money bill. However, a money bill cannot be introduced in a legislative council.
- Members of the council can become ministers. A member of the council is eligible to become the Chief Minister. It is one of the most important powers of the members of the legislative council.
- Although the council does not exercise legislative control over the state executive like the legislative assembly does, debates can take place in a legislative council and it can also ask questions to the executive ministers.
Privileges and immunities of Members of Legislative Councils
As embedded under Article 194 of the Constitution of India, the members of state legislatures enjoy privileges and immunities in certain cases. Those can be seen as follows:
Freedom of Speech
The members of state legislatures are granted freedom of speech in the house of legislature and immunity against legal proceedings for anything said or a vote given in favour or against a particular bill in the legislature. They cannot be held liable for the same. Unlike the freedom of speech which is granted to Indian citizens under Article 19(1)(a), MLC’s privilege of freedom of speech is absolute in nature, i.e., it is not subject to any reasonable restriction as mentioned under Article 19(2). These privileges are limited to things spoken or votes given within the house of legislature and not beyond.
Making rules
The state legislature is also granted a right to make laws, but they must be in consonance with the Constitution of India. However, it’s only the legislative assembly that makes final decisions and the legislative council only holds discussions.
Freedom from being arrested
The members are immunised from being arrested while the sessions are in motion. Even if they have been arrested previously, they must be freed to attend when the sessions are in motion.
Punishment for contempt
The Chairman of the legislative council is vested with the power to punish any member of the legislative council for contempt or misbehaviour during sessions.
Composition of a Legislative Council
Article 171 of the Indian Constitution describes the composition of the legislative council. It states that the states which have a bicameral legislature shall have one-third members as that of the legislative council of that state.
Further, for these members, the manner of election is as follows:
- One third shall be elected by electorates of local authorities,
- One-twelfth shall be elected by university graduates of the state,
- One-twelfth shall be elected by the teaching population of the state who teaches secondary level education or higher,
- One-third shall be elected by the members of the legislative assembly and the rest of the members are nominated by the governor of the state.
Therefore, the composition of the legislative council = 1/3rd members of the legislative assembly. In no case shall the total number of members in the council be less than 40 members.
| Number | Elected by |
| One-third | Local Authorities |
| One-twelfth | Graduates |
| One-twelfth | Teachers |
| One-third | Members of Legislative Assembly |
| Remaining | Governor |
| Total | 40 members (minimum) |
Members elected to the legislative council are called Members of the Legislative Council (MLC) whose term of office is of six years. State legislative council is a permanent body and one-third of its members retire every two years, as provided under Article 172(2) of the Constitution of India (1950).
Qualifications and disqualifications of Members of Legislative Council (MLC)
Qualifications
As has been provided under Article 173 of the Indian Constitution, the 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,
- Any other eligibility criteria as may be prescribed by the State Government from time to time.
Disqualifications
Mentioned below are the grounds on which Members of the Legislative Council can be disqualified:
- He/she must not be holding an office as a Member of Parliament,
- He/she must not hold any office of profit under the 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.
Creation of a Legislative Council
India has adopted a bicameral legislature. Just as there are two houses of Parliament at the centre, the states are at volition to adopt bicameralism too. Provisioned and empowered by Article 169 of the Indian Constitution, states can create a legislative council.
Process of creation of a State Legislative Council
Step 1: Presenting a bill in the legislative assembly of the respective state
Step 2: After the bill is introduced in the legislative assembly, a meeting is called upon for voting on the same
Step 3: Voting is conducted. For the bill to be approved, a special majority is needed at the legislative assembly voting.
The special majority here denotes the following:
- A majority of total members of the assembly,
- Not less than two-thirds of the members present and voting in favour of the bill.
Step 4: If and when a special majority is obtained, the legislative council can be established.
Step 5: A resolution is passed in this regard backed by a special majority.
Step 6: The bill along with the resolution is sent to the Governor for his assent.
Step 7: If and when the Governor assents, the bill is passed and approval for establishing a state legislative council is obtained.
Step 8: A legislative council is formed and its members elected.
Dissolution of a Legislative Council
A state legislative council is a continuing chamber, meaning, it is a permanent body and hence, cannot be dissolved. Members stay in power for a term of six years and one-third of such members retire every two years, but the house is never dissolved.
It can, however, be abolished, if it is deemed fit and necessary. Several states have, with time, abolished their legislative councils, such as, Assam, Punjab, Jammu & Kashmir, etc. The prerequisites for an abolition to take effect has been embedded in Article 169 of the Constitution of India, 1950.
Once formed, a legislative council cannot be dissolved. It can however be abolished. States where a legislative council is already present, can be abolished if deemed fit and proper, by a similar manner of voting and special majority. A resolution for abolition is presented to the legislative assembly of the state, as per provisions of Article 168 of the Indian Constitution.
Like many other things, the system of a bicameral legislature is a Britishers gifted system. During the era of British raj in India, there used to be a bicameral legislature, at union level and at provincial level. The names have changed since, but the idea remains the same.
The abolished legislative councils can also be reestablished. For instance, the West Bengal Legislative Council which was existent since the British era, was abolished in the year 1969 under the West Bengal Legislative Council (Abolition) Act of 1969. A resolution regarding the same was passed by its legislative assembly. It took place in the following manner:
- A bill was introduced in the state legislative assembly in the year 2021.
- Total number of members in the West Bengal Legislative Assembly were 294 and the number of members present and voting were 265 while this bill was introduced for voting.
- Out of these 265 members, 169 members voted in favour of the bill and 69 voted against it. This obtained a special majority in favour of the bill.
- The resolution was thus passed by the TMC government’s legislative assembly.
The opposition party was highly critical of this motion and has been opposing the formation ever since. Time will tell whether or not the Mamata Banerjee led government will be able to switch from unicameralism to bicameralism.
Why are legislative councils criticised in India
Even though bicameralism has been an age-old concept in India, very few states have chosen to adopt it. Many states have also abolished their legislative councils and opted for unicameralism. These statistics are indicative of the upper house not being as popular for state legislatures as it has been for the union. At times, legislative councils are heavily criticised by lawmakers and policymakers. Some prominent criticisms are:
- In a practical scenario, the decisions taken, the bills and the policies made depend more on the nature of the composition of houses than on merit. For instance, when a bill is introduced in the legislative assembly of the state and the same is sent to the legislative council for approval, the members belonging to the ruling party will give their assent and the opposition party members will not. The bills are often passed or not passed due to these grounds and not truly on the merits of it. If the ruling party forms a majority in the legislative council, the bill will be passed even if it is not expedient to do so. And if the opposition party forms a majority, they will tend to cause unnecessary delays in the passing of the bill, not for its demerit but for political innuendo.
- Another reason for criticism is its unnecessity. The legislative council is only advisory in nature and it discusses bills sent to it by the legislative assembly to make recommendations. These recommendations are not even binding on the assembly and it can pass a bill without implementing those recommendations. Thus, the legislative council is believed to be unnecessary, unuseful and inefficient.
- It delays the making of laws, even those which require immediate action.
- It is seen as a means to park defeated politicians.
- It creates a financial burden on the state’s budget. Setting up, everyday functioning, travel, institutional expenditures, and remunerations, are all high set financial expenditures and it creates a heavy burden on the state’s budget.
- It has extremely limited powers and functions.
- It has no control over the state executive, unlike the legislative assembly.
Conclusion
Part VI, Chapter III of the Indian Constitution gives a detailed description of state legislatures in general and state legislative councils in particular. Articles 169-212 deal with the creation, abolition, composition, powers and functions, etc., of legislative councils. Chapter III also deals with the manner in which a bill is passed in these houses and the powers of the legislative council when it comes to the passing of a bill. Although the legislative council is the upper house of the state legislature, which is believed to be similar to Rajya Sabha at the centre, unlike Rajya Sabha, its powers are rather limited. Lawmakers, policymakers, and academicians,l have a mixed opinions on this. Some believe that the legislative council is a crucial organ of governance as it helps maintain checks and balances in passing essential bills and making laws by scrutinising the work of the legislative assembly and acts as a scrutinising and suggestive body upon the proposals and decisions of the lower house. While others believe that it can be used as a tool to delay the procedures, put obstacles in the path of justice and can be used as a tool to fight against corruption. Currently, six Indian states have a legislative council as has been established under Article 169 of the Indian Constitution. Several other states have abolished their legislative councils for a host of reasons. It would be interesting to see more states adopting bicameralism and watch how that pans out.
Frequently Asked Questions (FAQs)
- Is it mandatory to have a legislative council for every state in India?
No. The Indian Constitution does not make it a mandatory requirement for every state to have a bicameral legislature. It is left to the discretion of the states.
- What is a bicameral legislature?
Bicameral legislature or bicameralism is a practice where states are at the centre, there exist two houses of Parliament for legislative purposes, one being the upper house and other, the lower house of Parliament.
- How many states in India have a bicameral legislature?
Six Indian states have a bicameral legislature, namely, Bihar, Uttar Pradesh, Maharashtra, Karnataka, Andhra Pradesh and Telangana.
- How is a legislative council different from a legislative assembly?
A legislative council is a permanent body which cannot be dissolved. It is mutatis mutandis to Rajya Sabha at the centre. Whereas, a legislative assembly is not a permanent body and it can be dissolved, same as the Lok Sabha at centre.
- Is the legislative council the upper house?
Yes. Legislative Council (Vidhan Parishad) is the upper house of a state legislature and the lower house is the Legislative Assembly (Vidhan Sabha).
- How is a legislative council created?
A legislative council is created as per provisions of Article 169 of the Indian Constitution, by a special majority from the legislative assembly.
- What is the minimum number of members in a legislative council?
There must be at least 40 members in a legislative council.
- What is the maximum number of members in a legislative council?
There is no upper limit or maximum limit when it comes to members of a legislative council. Uttar Pradesh legislative council has a number of members as high as 100 members.
References
- https://www.business-standard.com/about/what-is-legislative-council
- https://www.jagranjosh.com/general-knowledge/list-of-state-legislative-councils-of-india-1621860426-1’
- https://www.drishtiias.com/daily-updates/daily-news-analysis/legislative-council-3
- https://aplegislature.org/web/legislative-council/overview
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