CHAPTER-III

INDIAN CONSTITUTION AND LEGISLATURE

Introduction-

India has democratic form of government. Parliament and the President are our
representatives at the centre. They are mirror of the ambitions, aspirations and the
dreams of the people of India. The preamble of the constitution of India provides to
secure for our citizens, justice-social, economic and political; liberty of thought,
expression, faith, belief and worship, equality of status and opportunity and foster
fraternity through constitutionally valid measures.

In England, parliament is sovereign as it does not have a written constitution as

like India and the doctrine of sovereignty of parliament operates there. But in case
of India, because of written constitution, it will be wrong to describe our
parliament as ‘Sovereign’, as the constitution of India provides for composition,
powers and functions of it. Hence, parliament in India is not fully sovereign but it
may be supreme in its own sphere of activity. In theory, the English parliament’s
powers are so great as it can make or unmake any law. But, Indian parliament can
exercise its powers subject to the limitations imposed by our constitution and with
the procedure prescribed in the constitution. For example, it cannot make a law
which imposes unreasonable restrictions on citizens’ fundamental rights, like,
freedom of speech and expression, freedom of assembly, freedom of association, to
mention a few, guaranteed under Art.19. Again, in the exercise of its power of
amending the constitution, our parliament cannot destroy the basic or ‘the
fundamental’ or “the essential’ or ‘the paramount’ features of our constitution.
Some of the basic features pointed out by our Hon’ble Supreme Court in number
of cases decided by it are; “Fundamental Rights” “ Directive Principles of State
Policy” “Doctrine of Separation of Powers”, “Rule of Law”, “Judicial Review”
etc. Thus, the constitutional limitations on our parliament’s powers is recognised
in Keshavanand Bharati v. State of Kerala1.Thus Indian parliament is supreme in
its own spheres but at the same time it is bound by restrictions bound by the
constitution.

Parliamentary system of government-

India's founding fathers did a great work of analysis in deciding the structure and
shape of our democracy. Our founding fathers preferred the parliamentary system
to the presidential form of government as parliamentary system ensures a better
representation of the populace and well suited for country like India with huge
diversity. For example, if only a person has to be the leader only the majority
community will rule but that is not the case with parliamentary form of system. In
the case of a parliamentary system, one can have leaders from various communities
and the smaller groups could form alliances to keep a check on the majority. Again
this system is also better in protecting against an autocratic one-man rule. Thus,
parliament acquires “the pivotal position.”But, as per the National Commission to
Review the Working of the Constitution “It has to be remembered that in
parliamentary democracy, just as the government is responsible to parliament,
parliament is also responsible to the people who are the supreme sovereign.”

Parliament-

The parliament is a supreme legislative body in India. It comprises of the president

of India and the two Houses—Lok Sabha (House of the People) and Rajya Sabha
(Council of States). Thus, India's parliament is bicameral; Rajya Sabha is the upper
1
AIR 1973 SC 1461; (1973) 4SCC225
house whereas Lok Sabha is the lower house. The president has the power to
summon and prorogue either House of parliament or to dissolve Lok Sabha.
Those elected or nominated (by the President) to either house of parliament are
referred to as members of parliament or MPs. The MPs of Lok Sabha are directly
elected by the Indian public and the MPs of Rajya Sabha are elected by the
members of the state legislative assemblies, in accordance with proportional
representation. The Indian parliament has largest democratic electorate in the
world.

Article 79 of the constitution of India states that “There shall be a parliament for
the union which shall consist of the President and two houses known as the
Council of States (Rajya Sabha) or the Upper House” or “House of Elders” and the
“House of the People” (Lok Sabha) or the “Lower House”. While Rajya Sabha
represents the States, Lok Sabha represents the People. Thus, the Indian parliament
is bicameral.

Composition of Rajya Sabha-

Art.80 to be read with fourth schedule wherein the first column mentions the name
of the state or union territory and the second specifies the number of seats allotted.

a) Rajya Sabha consists of twelve members nominated by the president from

amongst citizens possessing special knowledge or practical experience in the areas
of literature, science, art or social Service.

b) Not more than two hundred and thirty eight representatives of states and union
territories. Representatives of States in the Rajya Sabha shall be elected by the
elected members of the legislative assemblies of the States in accordance with the
system of proportional representation by means of the single transferable vote.
Representatives of union territories shall be chosen as prescribed in the law
enacted by parliament. A state’s population determines the number of
representatives it can send to Rajya Sabha. Consequently, states that are small
cannot be represented by a large number of it’s representatives in the Rajya Sabha.

Composition of Lok Sabha-

a) Not more than five hundred and thirty members chosen through direct election
from the territorial constituencies of the states,

b) Not more than twenty members to represent union territories who shall be
chosen in such manner as prescribed in a parliamentary legislation.

Adult franchise-

Elections to Lok Sabha and to the state legislative assemblies are on the basis of
adult franchise/suffrage. That is, an Indian citizen who is not less than eighteen
years of age and who does not suffer from any disqualification under the
constitution or law made by state legislatures on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice can get himself registered
as a voter & vote. Voting will be by secret ballot at the general elections.

Further, the president on forming an opinion that the Anglo-Indian community is

not adequately represented in the Lok Sabha can nominate not more than two
members of that community to Lok Sabha as provided under Art.331.

Qualification for membership of parliament-

Qualifications for a person to become a member of parliament are as follows:

i) Should be a citizen of India;

ii) Should subscribe to oath…set out in schedule three of the constitution;

iii) Should possess such other qualifications as parliament may prescribe by law;

iv) For a seat in Rajya Sabha, should not be less than thirty years of age.

v) For a seat in Lok Sabha, should not be less than twenty five years of age.

Disqualifications-

A citizen cannot become a member of either house on the following grounds-

i) If he holds any office of profit under government of India or state;

ii) If he is of unsound mind and a court of competent jurisdiction has so declared;

iii) If he is an un discharged insolvent;

iv) If has voluntarily acquired the citizenship of a foreign State or “acknowledges

allegiance or adherence to a foreign State”…

v) If he is disqualified by or under any law made by parliament.

Oath of office and secrecy-

Before taking his seat in the house, an every member of parliament shall take an
oath or solemnly affirm as conforming to the format set out in the third Schedule.

No dual membership-

The constitution of India prohibits dual Membership. Thus, if a citizen is elected to

Lok Sabha, Rajya Sabha, or a house of the legislature of a atate then he has to
decide the seat which he wants to hold. He cannot be a member of all legislative
bodies at the centre or in the states.
He has to choose only one. Art 101 states that no person can be a member of both
houses of parliament or of a house of the legislature at the same time. If he did not
make any choice before such the expiration period prescribed in the rules made by
the president, his seat in a house of parliament shall become vacant if he has not
previously resigned his seat in the legislature of the state and in one of the houses
of parliament.

Vacancy-

An elected member of respective house can resign by writing to the chairman of

Rajya Sabha or speaker of Lok Sabha. Ordinarily, when the resignation is
accepted, the seat falls vacant. This is the ordinary practice. But, if resignation
made under duress, coercion, etc. i.e. if it is not made voluntarily, then such
resignation shall not be accepted immediately. After the receipt of the letter of such
resignation, the chairman of Rajya Sabha or the speaker of Lok Sabha may
conduct such inquiry as they think fit and after being satisfied that “such
resignation is voluntary and genuine” may accept the resignation.

If a member of parliament remains absent from all meetings for a period of sixty
days without the permission of the speaker of chairman, his seat in the house may
be declared as “vacant”.

In case of reckoning the period of sixty days, any period for which the house was
prorogued or adjourned for more than four consecutive days shall not be taken into
consideration.

As per Art.104, a person shall be liable to be punished if he sits and votes without
taking the prescribed oaths, or when he knows that he is not qualified or
disqualified for membership of the house or that he is prohibited from so doing by
any parliamentary enactment.

Decision on disqualification-

Decision on the question ‘whether a member of parliament suffers from any

disqualification or not’, is to be decided by the president and it shall be final. But,
before giving his decision, the president shall consider the opinion of the election
commission and shall act according to such opinion as per Art 103.

Duration of house of parliament-

Rajya sabha (Upper House) is a permanent body and therefore, it is not subject to
dissolution. Nearly one-third of its members retire on the expiration of every
second year as per provisions in the law made by parliament.

Lok Sabha (House of People) can be dissolved in certain situations. For example,
when the ruling party loses it’s the confidence of Lok Sabha and no other party
stakes its claim to form a government. Dissolution ends the life of Lok Sabha but,
prorogation ends or terminates a session.

Lok Sabha shall continue for five years from the date of its first meeting if not
dissolved earlier. However, when a proclamation of emergency is in operation, the
aforesaid mentioned period of five years may be extended for such periods as
proviso to clause 2 of Art.83 provides.

Officers of parliament-

Chairman & deputy Chairman-

The vice-president of India is the ex officio chairman of Rajya Sabha. He presides

over the meetings. The Rajya Sabha, shall as soon as possible choose one of its
members as deputy chairman who shall discharge his the duties whenever the
office of the chairman is vacant or during his absence.2 When deputy chairman’s
membership of Rajya Sabha ceases then he has to vacate his office. He can also be
removed through a resolution passed by a majority of the members.

Speaker & deputy Speaker-

Speaker of Lok Sabha is the presiding officer of Lok Sabha . As per Art.93 of the
constitution, the Lok Sabha shall choose two of its members as speaker and deputy
speaker. Dignity, prestige and authority accompany the office of the speaker of
Lok Sabha. Speaker of Lok Sabha presides over the meetings, adjourns the house
if there be no quorum at a given point of time. As per Art 100(3) the quorum
required to conduct a meeting of either house is one-tenth of the total number of
members of the house.

Functions of speaker-

The speaker should ensure that -

1) The debates, deliberations in Lok Sabha are conducted with decorum and in
a dignified manner. So he can command a member not to use
unparliamentary language, can order expunction of unparliamentary remarks
made by a member,
2) Can suspend a member, can ask an unruly member to withdraw from the
house.

2
Articles.89,91
3) He is the final authority to decide whether a bill is a money bill Art-110
(3).At the joint sessions of Lok Sabha and Rajya Sabha, it is the speaker who
presides.
4) He is the preserver, protector of the rights and privileges of the members of
Lok Sabha,
5) He has the authority to punish members, non-members for the breach of the
privileges.
6) He signs the bills passed by Lok Sabha before they are transmitted to Rajya
Sabha or to the president for his assent.
7) He continues in office even after the dissolution of Lok Sabha until
immediately before the first meeting of the house of people (Lok Sabha)
after the dissolution. 3 When the houses is in session the business of the
house is pre-scheduled so that the members know the agenda before hand
and can prepare and effectively participate in the deliberations. However,
there may be times when a definite matter of public importance may crop up
and a party or a member would wish that the matter be taken up and
discussed immediately so that the government’s stand in respect of the
matter and the steps it is contemplating to address the issue would become
known to the house. But, the time table already announced cannot be
departed from in ordinary circumstances. So, the rules of procedure of the
Lok Sabha do permit a member to move an adjournment motion, that is, a
motion to adjourn the business of the house for discussing a definite matter
of urgent public importance. When such an ‘adjournment motion’ supported
by fifty members of Lok Sabha is moved, it is the speaker who determines

3
Art.94, the last proviso
 that the motion is in order and can suspend the scheduled business to
facilitate a debate on the subject matter of the motion. Incidentally, it may be
noted that an adjournment motion cannot be moved in the Rajya Sabha.

President-

Before moving further, the president of India is an integral part of parliament. He

has following powers-

1) He summons, prorogues both houses and can dissolve the Lok Sabha.

2) He addresses the houses when they meet in their first session every year.

3) Can communicate messages for their consideration.

4) Can call for information from the Prime Minister relating to proposals for
legislation.

Procedure for passing of bill-

The first step of enactment of a statute or law is the introduction of a bill in either
house of parliament. A bill includes the draft provisions of the law being proposed
which originates in the ministry concerned. Further it is referred to the law
ministry for its legal opinion in respect of the draft Provisions. Then the cabinet
considers it. After consultations with the law ministry, discussions and
deliberations over the provisions in the bill, deletions, alterations, amendments
may be effected. Finally, the law ministry, drafts the provisions and the bill will be
introduced in either house. In respect of ordinary legislation, the two houses enjoy
coordinate jurisdiction. However, a financial bill or a money bill is introduced
only in the Lok Sabha.
After passing of bill by both houses it shall be presented to the president for his
assent. Only after the presidential assent, it becomes law.

Once a bill passed by Lok Sabha then it is transmitted to Rajya Sabha. It may
effect some amendments and pass it. It has to then go back to Lok Sabha. Lok
Sabha may concur and pass the bill. Then such passed bill is sent to the president
for his assent.

When a bill passed by one house is rejected by the other or when the both houses
do not agree to amendments effected or if the house to which the bill is sent sits
over it for more than six months, then, the president may summon a joint session of
both houses.

The speaker of Lok Sabha presides over such the joint session. As per Art.118, if
the bill is passed with or without amendments by a majority of all the members
present and voting at the joint session, then it is deemed to have been passed by
both houses.

As per Art.108(5), after the president has notified his intention to summon a joint
session and if Lok Sabha is dissolved such dissolution would not prevent the
holding of the joint session.

As per Art.111, once a bill passed by both houses and is presented to the president
for assent, the president may either give his assent or withhold it or, he may return
it for reconsideration or for examining the amendments he has proposed and the
desirability for their inclusion.

However, as per proviso to Art.111, if the bill is passed again, with or without
amendments, and presented, “the president shall not withhold assent there from”.
Money Bill-

A ‘Money Bill’ contains provisions dealing with the following matters only:

i) Imposition, remission, abolition, alteration or reduction of any tax,

ii) The regulation to the borrowing of money or the giving of any

guarantee by government of India

iii) The custody of the consolidated fund or the contingency fund of

India, the payments of moneys therein or withdrawal of moneys there from;

v) The appropriation of money out of consolidated fund of India.

As per Art.117 (1), a financial bill is a bill with makes provisions for any of the
above matters and additionally for another matter. Thus, a financial bill has all the
ingredients of a money bill plus some other matter tagged on to it.

Procedure for passing of Money Bill-

As per Art.109 (1), a Money Bill can be introduced in Lok Sabha on the
recommendation of the president only. When an amendment is moved for reducing
or abolishing any tax, president’s recommendation is not required.

After bill is passed by Lok Sabha, then it is sent to Rajya Sabha for its
consideration and recommendation. If Rajya Sabha does not return the bill with its
recommendation within 14 days of the receipt of the bill, the bill is deemed to have
been passed by both house on the expiry of such 14 days period.

Art.109(5) provides that even if Rajya Sabha returns the money bill within 14 days
with its recommendation, such recommendation does not bind Lok Sabha, it means
that, it may accept or reject the recommendation. If Lok Sabha accepts the
recommendation, the bill is deemed to have been passed by both houses in its
modified form. If Lok Sabha rejects the recommendation, the bill is deemed to
have been passed by both houses in its original form as per Art.100(3). Thus, Lok
Sabha has the final say in respect of financial matters. The speaker’s decision that
a bill is a money bill is final. When the bill is being sent to Rajya Sabha for
consideration or to the president for his assent, the speaker endorses through a
certificate that it is a money bill. Such certificate establishes conclusively that the
bill is a money bill.

Once money bill is passed by both houses, presidential assent is necessary. As per
Art.111 when such assent is sought, president enjoys no power to send the bill
back to the houses for reconsideration.

Powers and Functions of parliament-

1) Financial powers-

In case of the financial matters, parliament enjoys the supreme powers. No tax can
be imposed except the authority of law. Executive cannot spend any money except
the sanction of parliament. Executive prepares annual budgets and seeks
parliament’s approval. As stated earlier, money bills can originate only in Lok
Sabha. Two Standing Committees namely the public accounts committee and the
estimates committee keep control over the ways the executive spends the money
sanctioned by parliament.

2) Control over the executive-

By way of asking questions, supplementary questions, adjournment motions, no-

confidence motions, parliament seeks to exercise control over the executive.
Committee on ministerial assurances constituted by parliament tries to ensure that
the assurances made by the ministries to parliament are fulfilled.

3) Judicial functions-

Parliament has got the power to impeach the president, judges of High Courts and
the Supreme Court, controller and auditor general. Parliament also has the
authority to punish members and non-members for the breaching the privileges of
the house.

4) Elections to the office of president, vice-president-

The president and the vice-president are elected by elected members of both Rajya
Sabha and Lok Sabha.

5) To amend the constitution-

Article 368 of the Indian constitution speaks about the procedure of amending the
constitution. The parliament can amend the constitution under its constituent
power. A bill should be presented in either house of the parliament and must be
approved by a majority of each houses and not less than 2/3 majority of each house
present and voting. After approval, the bill is presented to the president for his
assent, upon whose assent the constitution shall stand amended as per the
provisions of this article. However, if the amendment seeks to make a change in
Articles 54, 55, 73, 162, 241or chapter 4 of part 5, chapter 5 of chapter 6, or
chapter 1 of part 11 or any of the lists in the 7th schedule or representation of the
states in the parliament or in this article itself the bill must also be ratified by not
less than half of the states before it is presented to the president for his assent. For
amending articles 5, 169, or 239-A, only a simple majority of both the houses of
the parliament is necessary. Further, parliament can also engage in effecting
amendments to the constitution when certain situations so demand. But, the power
to amend the constitution cannot be exercised to destroy the fundamental or the
basic features of the constitution.

6) To enact the laws-

The primary function of the parliament is to enact the law in respect of precepts in
the preamble to our constitution, the directions in the directive principles of state
policy, public demands for new laws or amendments to the existing laws in respect
of social economic problems, environmental pollution, labour management
relations make law-making a pre-eminent activity of the parliament.

7) To enact the laws with respect to the subjects mentioned in the state list-

According to Article 249 of the constitution, the parliament of India has got power
to make laws even in normal times, if the council of states passes a resolution by
two-thirds majority that in the national interest the union parliament should make
law on any matters in the state list. Such resolution shall continue in force for a
further period of one year from the date on which under this clause it would
otherwise have ceased to be in force.

8) To enact the laws during emergency-

Art.250 of the constitution of India provides that in case of a proclamation of

emergency, parliament has got power to make laws for the whole or any part of the
territory of India with respect to any of the matters in the state list.
9) Residuary power-

Article 248 of the constitution and entry 97 of the union list provide that residuary
powers of legislation are vested in parliament. Article 248 (2) of the constitution of
India provides that the parliament has exclusive power to make any law with
respect to any matter not enumerated in list II and III. Such power shall include the
power of making any law imposing a tax not mentioned in either of those lists. The
entry 97 of union list also lays down that parliament has exclusive power to make
laws with respect to any matter not enumerated in list II or III. Thus, Article 248
and entry 97 of the union list of constitution of India assign the residuary powers of
legislation exclusively to the union. If no entry in any of the three lists covers a
piece of legislation , it must be regarded as a matter not enumerated in any of the
three lists, and belonging exclusively to parliament under entry 97, list I by
virtue of Art. 248. In other words, the scope and extent of Article 248 is identified
with that of entry 97, list I. But the scope of the residuary powers is restricted. This
is because the three lists viz union, state and concurrent cover all possible subjects.
Then, the court can also decide whether a subject matter falls under the residuary
power or not. The rationale behind the residual power is to enable the parliament to
legislate on any subject, which has escaped the scrutiny of the house, and the
subject which is not recognizable at present. But, the framers of constitution
intended that recourse to residuary powers should be the last resort, and not the
4
first step.

4
http://www.gktoday.in/residuary-powers-of-parliament-of-india/
Ordinance making powers of the president-

Article 123 of the constitution empowers the president to promulgate ordinances

when either of the two houses of parliament is not in session and hence it is not
possible to enact laws in the parliament. The parliament has the power to
promulgate an ordinance in respect of any subject. In contrast, it has the some
limitations as the parliament has to legislate as per the distribution of powers
between the union, state and concurrent lists. Thus, the following are the
limitations with regard to the ordinance making power of the executive:

i. Legislature is not in session: The president can only promulgate an ordinance

when either of the two houses of parliament is not in session.

ii. Immediate action is required: The president cannot promulgate an ordinance

unless he is satisfied that there are circumstances that require taking ‘immediate
action’.

iii. Parliamentary approval during session: Ordinances must be approved by

parliament within six weeks of reassembling otherwise they shall cease to
operate. They will also cease to operate in case resolutions disapproving the
ordinance are passed by both the houses.

Distribution of powers between Union and states:-.

Indian constitution is a federal constitution. Various provisions give powers to both

centre and states to exercise their powers and also provides for their scope of
power. The constitution provides for three major types of classification of powers
between the centre and the states namely:

1) Legislative Power
2) Financial Powers

3) Administrative Powers

Art 245 states that parliament may make laws for the whole or any part of the
territory of India and a state legislature can make laws for the whole or any part of
the state.

As per Art.245 (2) a central legislation won’t be invalid if it has extra-territorial

operation. Further it is stated that a state is incompetent to make a law which
would have extra-territorial operation.

In order to understand the distribution of legislative powers between the union and
the states, it is necessary to have a discussion on the seventh schedule of the
constitution where-in There Lists are provided, namely, ‘Union List’ (List1, ‘State
List’ (List 11) and ‘Concurrent List’ (List 111). These three lists spell out various
items of legislation.

Parliament has the exclusive power to make laws in respect of items mentioned in
the union List. Similarly, States’ has exclusive power to legislative in respect of
the items mentioned in state List. In case of matters specified in the concurrent
List, both the union and the states can make laws.

Art.246 provides that ultimately “the overriding power of the union legislature
…the union power prevails.”

The courts uphold the following principles of interpretation while examining the
exercise of legislative power by the union and states in cases presented to the
courts:
1) The power of the legislature to enact laws within its competence is plenary,
subject, of course of constitutional limitations.

2) Power to make law includes the power to make laws prospectively or

retrospectively.

3) A legislature can also pass validation Acts provided it has legislative

competence over the subject matter. Such validation Acts can be given
retrospective effect. But, the power to make retrospective laws is subject to
constitutional limitations. For example, Art.20 (1) prohibits creation of offences
and enhancement of penalty for any offence retrospectively. Further, this power
“cannot be used to justify the arbitrary, illegal or unconstitutional acts of the
executive….”

4) Union power shall prevail in case of conflict between List II & List III.

5) Natural Justice has no application in respect of the exercise of legislative power.

6) Power to legislate on a topic carries with it the power to make laws on matters
ancillary to it.

Parliament’s legislative power to make laws for the states-

As per Art.249, when Rajya Sabha declares by a resolution supported by two-

thirds of the members present and voting declaring that it is necessary and
expedient in national interest that parliament should make laws with respect to any
matter in the state list specified in the resolution, parliament can make laws with
respect to that matter.

According to Art.250, when a proclamation of emergency is in operation,

parliament shall have power to make laws for the whole or any part of the territory
of India with respect to any of the matters in the state list.
Thus as per Art.252,parliament can make a law in respect of a matter mentioned in
the state list at the instance of two or more states. But such state’s legislature must
have passed a resolution that such matter must be regulated by an Act of
parliament. If the state’s legislature is bicameral, then both houses should have
passed the resolution. Any other State which desires to adopt the Act made by
parliament can do so by passing a resolution to that effect in its legislature as
provided under the constitution.

Art.253 confers on parliament the capacity to implement any international treaty,

agreement or convention cannot be invalidated on the ground that it intrudes into
the domain of state legislature. But, such law made in pursuance of Art.253 cannot
override, for example, the fundamental rights.

In respect of matters contained in the concurrent list, both the union and the states
can exercise concurrent legislative power. The question then would be: If there be
conflict between the central law and the state law, which law should prevail? To
seek the answer, we should turn to Art.254“Inconsistency between laws made by
parliament and the laws made by the legislature of states”. To invoke Art.254, it
must be shown that both the central law and the state law occupy the same field
with respect to the some matter enumerated in the concurrent list. Or, the
repugnancy is between the provisions of subsequent law and those of an existing
law in respect of a specified matter in the concurrent List. Thus, Art.256 (1)
declares that in case of conflict between union law and state Law, the former
prevails.

Clause (2) of Art.256 provides an exception to the rule laid down in clause (1). If
any provision of the state made law with respect to a matter specified in the
concurrent list is repugnant to the provision of an earlier law made by parliament
or an existing law with respect to that matter, then the state law shall prevail in the
state if it has been reserved for the consideration of the president and has received
his assent. But, in the light of the proviso to clause (2), referred to above, the
state’s victory may be a temporary one because the proviso enables parliament to
supersede a state legislation which has received the president’s assent by enacting
a law on the same subject matter.

Under Art.247 parliament is empowered with power to establish additional courts

for the better administration of laws made by parliament or any existing laws with
respect to matter enumerated in the union list.

Art.248 confers on parliament the ‘Residuary Powers of Legislation’ which

declares that parliament has exclusive power to make any law with respect to any
matter not enumerated in the concurrent list or state list.

Restrictions on discussion in parliament-

Article 121 provides that ‘No discussion shall take place in the parliament with
respect to the conduct of any judge of the Supreme Court or of a High Court in
discharge of his duties except upon a motion for presenting an address to the
president praying for the removal of the judge.’

Parliamentary privileges-

Art.105 of the Indian constitution deals with the “Powers, Privileges, etc; of the
houses of parliament and of the members and committees thereof.”

Sir Thomas Erskine May says ‘Parliamentary Privilege’ as: “The sum of the
peculiar rights enjoyed by each house collectively,….And by members of each
house individually without which they could not discharge their functions…”He
further explains that privileges are enjoyed by individual M.Ps because the house
cannot discharge its functions without the unimpeded services of its members and
by each house for the protection of its members and the vindication of its own
authority and dignity.

The following are the privileges that are enjoyed by the members of parliament—

1) Freedom of speech and expression-

Clause (1) of Art.105 provides that while holding out an assurance to M.Ps that
“there shall be freedom of speech in parliament” limits that freedom by “subjecting
it to the provisions of this constitution and to the rules and standing orders
regulating the procedure of parliament”. Therefore, an M.P. cannot exercise his
freedom of speech ---

i) To discuss the conduct of a judge of the Hon’ble Supreme Court or the High
Court5.

ii) Further, a member of parliament cannot, in the exercise of the above right use
unparliamentarily language.

Thus, clause (1) and (2) of this Article accords protection to M.P. in respect of
what is said within the house. That is, even a defamatory statement made in the
house or before its committees. But, if the M.P. publishes such a defamatory
speech outside parliament, he will be held liable for prosecution.

This privilege of freedom of speech extends to voting’, raising questions, moving

of resolution,….The immunity against proceedings in any court would be “In
respect of anything said or any vote given by him in parliament or any committee

5
See Art. 107,121
thereof----“ To be noted is “anything” is of widest import. Further, to avail of the
immunity, it should be established that freedom of speech was exercised in
parliament, that is, when it was in session and in the course o its deliberations.

In. P.V.Narasimha Rao v.State, 6 the charge was certain members of parliament
had conspired to bribe certain other Mps to vote against a ‘No confidence Motion
’in parliament. The majority ruled that while bribe-givers who were members of
parliament could not claim immunity under Art.105, the bribe-takers, who were
also members of parliament could claim immunity if they had actually spoken or
voted in the house as dictated by the bribe-givers.

Other Privileges include---

2) Freedom from arrest in civil cases,

3) Freedom of the house to exclude strangers for imperative reasons since voters
should know what their representatives are doing in the house;

4) Right to prohibit publication of debates (now, confined to secret sittings, which

are rare.) True and faithful reporting of the proceedings would not expose the
reporter to civil of criminal proceedings. A malicious report would amount to
breach of privilege);

5) Right to regulate internal proceedings.

6) Art. 122 provide expressly that the validity of any proceedings shall not be
questioned on the ground of any alleged irregularity of procedure.

7) Right to punish members and outsiders for contempt.

6
AIR 1998 SC 2120
State Legislatures-

Article 168 of the Indian constitution provides that every state shall have a
legislature. It consists of the governor and one house or the governor and two
houses. The two houses are known as the ‘Legislative Assembly’ and the
‘Legislative Council’. If there be only one house, it is known as the ‘Legislative
Assembly’. It is not always necessary that every state legislature must be
bicameral. A state’s legislature may be unicameral. In fact, barring very few
states, many states in the union do not have legislative councils. The constitution
provides for the abolition of legislative councils where they exist and also for their
creation where they are non-existent. As per Art.169, for creation or abolition, the
legislative assembly of the state must pass 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.

Composition of Legislative Assemblies-

As per Art.170 of the Indian constitution, the legislative assembly of a state shall
consist of not more than five hundred and not less than sixty members chosen by
direct election from the territorial constituencies in the state.

If the governor of a state is of the opinion that the Anglo-Indian community needs
representation in the assembly and is not adequately represented therein, he may
nominate one member of that community as provided under Art 333 of the
constitution of India.

Composition of the Legislative Council-

As per Art.171 of the Indian constitution, the total number of members in the
legislative council of a state having such a council shall not exceed one-third of the
total number of members in the legislative assembly of the state, however, in no
case, the strength of the legislative council shall be less than forty.

The composition of legislative council is partly through indirect election (one-third

of the total numbers of the council being elected by members of the legislative
assembly), partly through special constituencies (e.g., graduates’ constituency,
teachers’, constituency) and partly by nomination. The governor nominates persons
having special knowledge on experience in the fields of literature, science, Art, co-
operative movement and social service.

Duration of State Legislatures and Qualification for membership- As

per Arts.172 and 83, the provisions for the duration of the legislatures and as per
Art.84 the provisions of qualification are mutatis mutandis the same as those for
the duration and qualification of members the houses of parliament.

Dissolution-

As like president is of parliament, governor is an integral part of the state

legislature. Likewise the president at the centre, the governor of a state can
summon, address, prorogue the state legislature, can dissolve the state assembly,
The legislative council is not subject to dissolution as mentioned under
Art.174,175,176 of the Indian constitution respectively.

The speaker, deputy speaker of the legislative assembly; vacation, resignation,

removal, other ancillary provision are mutatis mutandis the same as those for the
speaker and deputy speaker of Lok Sabha as per Art.178,179,180,181of the
constitution of India.
The chairman & deputy chairman of the Legislative Council-

Legislative Council has to choose both the chairman and the deputy chairman as
soon as it can.

Vacation, Resignation, Removal & other Ancillary provisions –

The vice-president is the ex officio chairman of the council of states. The

provisions for vacating his office or for his removal have been dealt with earlier.

The other provisions relating to the chairman, deputy chairman of the legislative
council are mutatis mutandis the same as those relating to the speaker, deputy
speaker of the Lok Sabha and the legislative assembly as provided underArt.89 to
92 & 182 to 185 of the constitution of India. Provisions for conducting business
like oaths, votes, quorum as provided under Arts. 99 & 188; 100 &189 of the
Indian Constitution are same for both the parliament and state legislatures.
Further, the provisions for vacation of seats provided under Art. 101 & 190;
Disqualification mentioned under Arts.102 ,191; provision of ‘No Dual
Membership’ mentioned under Arts.102 (1) and 190 (3); disputes as to
disqualification of members to be decided by the governor acting according to the
opinion of the election commission as per Art.192 of the Indian constitution.

The provisions mentioned under Art.194 deal with the powers, privileges and
immunities of the members of legislatures. It compares materials on Art.105.The
procedures of the state legislature in respect of money bills and financial and other
matters are mutatis mutandis the same except for the following;

i) No provision for joint session of legislative assembly & legislative council even
if a state legislature has two houses.
ii) Items charged on the consolidation fund are to some extent different.

iii) Although Art.200, exclusive of the proviso, corresponds to Art.111. The

proviso requires that the governor to reserve for the consideration of the president
any Bill which in his opinion, if it became law, would so derogate from the powers
of the High court as to endanger the position which the High Court is designed to
fill under the constitution.

iv) When a bill is reserved by the governor for the assent of the president, the
president may either give his assent or declare that he withholds his assent. Where
the bill is not a money bill, the president may direct the governor to return the bill
together with the message as per proviso to Art.200 of the constitution of India,
requesting the legislature to reconsider two bill or parts of it in the light of the
message, the house or houses must then consider the bill within six months & if it
is passed without amendment, it must be submitted to the president for his
consideration.

Powers and functions of state legislatures-

The powers and functions of the state legislature may be mentioned as follows:-

(a) Legislative powers

The legislature of each state has got power to frame laws on all matters included in
the state list (list II) and the concurrent list(list III) of the VII th schedule of the
constitution of India. But laws made by the state legislature on the subject in the
concurrent list will be null and void, if in case they conflict with the laws of the
union on the same subject provided the relevant laws of the state legislature have
not obtained the assent of the president. Thus, the constitution has imposed certain
restrictions on the powers of the state legislature. Another limitation on the power
of the legislature is that during an emergency, the parliament of India may make
laws on the state list.

As provided under Article 249 of the constitution of India, even in normal times, if
the council of states passes a resolution by two-thirds majority that in the national
interest the union parliament should make law on any matters in the state list, the
parliament of India is competent to make laws.

Further, the governor of the state, at his discretion may reserve certain bills like
acquisition of private property, bills seeking to impose restrictions on freedom of
trade and commerce, bills affecting powers of High Courts, etc. for presidential
assent. Under such circumstances, the president of India may give assent to such
bills or send them back for the reconsideration of the state legislature. If such bills
are again passed by the state legislature, the president is not bound to give his
assent. Thus the president can veto the bills in entirety, if he so desires. Thus the
legislative power of the state legislative assembly is limited.

(b) Financial powers:

The legislature of a state controls the finances of a state. Without the legislative
sanction, a single rupee cannot be spent. The budget is introduced every year in the
state legislature. The state legislature may pass, reduce, or reject the demands for
grants made in the budget. It is its duty to find ways and means to meet the budget
expenditure. Proposal for increase or decrease of taxes are to be approved in the
assembly.

In a bi-cameral legislature, the position of the legislative assembly superior to that

of the legislative council in respect of financial matters. Excepting the expenditure
charged on the consolidated fund of the state (which is non-votable) all other items
of expenditure must be submitted to the legislative assembly in form of demands
for grants. In financial matters, the legislative assembly is supreme in the state.

(c) Control over executive

As we have parliamentary form of government in the centre as well as in the states.

Consequently, the council of ministers is collectively made responsible to the state
legislature. Thus, the legislature exercises supervision and control over the
ministers. The common method used to make the ministers responsible to the
legislature is through question, censure motion, amendment to government's
policy, vote of no confidence, etc.

There are also committees, which exercise control over the government on behalf
of the state legislature. In controlling the executive, the legislative assembly is
more powerful than the legislative council. A vote of no confidence in the
legislative council may not lead to the resignation of the council of ministers.
However, such a vote of no confidence if passed in the legislative assembly
compels the ministry to tender its resignation.

(d) Electoral functions

The elected members of the legislative assembly constitute a part of the electoral
college provided for the election of the president of India. The legislative assembly
also elects the representatives of the state to the Rajya Sabha and 1/3rd of the
members of the legislative council of the state concerned. Further, it elects it’s
speaker and deputy speaker. Legislative council also elects a chairman and vice-
chairman from among its members to preside over the meeting of the council.
(e) Constituent functions

The state legislatures in India have no power to propose any amendment of the
constitution. All initiatives for the amendment of the constitution are vested in the
union parliament.

In America, both the union and the states have equal power with regard to the
amendment of the constitution. However, there are certain categories of
amendments of the Indian constitution (such as the election of the Indian president,
High Courts, the representation of states in the parliament, Article 368 of the
constitution etc.) which are to be ratified by one half of the legislatures. In these
respects, the state legislatures also take part in the amendment of the constitution.
Thus unlike U.S.A., the state legislatures in India has limited voice in the
amendment of the constitution

Ordinance making powers of governor-

Just as the President of India is constitutionally mandated to issue ordinances under

Article 123, the governor of a state can also issue ordinances under Article 213,
when the state legislative assembly (or either of the two Houses in states with
bicameral legislatures) is not in session. The powers of the president and the
governor are broadly comparable with respect to ordinance making. However, the
governor cannot issue an ordinance without instructions from the president in three
cases where the assent of the president would have been required to pass a similar
bill. 7

7
http://www.prsindia.org/theprsblog/?p=3088
Restrictions on the powers of state legislature-

1) Some bills can be introduced in a state legislature only with the prior consent of
the president.

2) Some bills even though it is passed by the state legislature, can be reserved by
the governor for the consent of the president. Such bills become laws only after the
assent of the president.

3) The union parliament has got the power to pass laws on the state list, (for one
year) if the Rajya Sabha adopts a resolution (supported by 2/3rd majority of the
members present and voting) and declares a state subject mentioned in the
resolution as a subject of national importance.

4) During the period of a national emergency (Under Art. 352), the parliament is
empowered to pass a law on any subject of the state list. Such law operates during
the period of emergency and for six months after the end of the emergency.

5) During the operation of constitutional emergency in a state under Art 356, the
union parliament gets the authority of making laws for that state. The state
legislature stands either dissolved or suspended.

6) Discretionary powers of the governor of a state also constitute a limitation on

the state legislature. Whenever he acts in his discretion, he is beyond the
jurisdiction of the state legislature. Acting in his discretion, the governor can even
dissolve the state legislative assembly.

7) The state legislature and the union parliament, both have the concurrent power
to make laws on the subjects of the concurrent list. If both the union parliament
and a state legislature pass a law on the same subject of the concurrent list and
there is inconsistency between the two, the law passed by the union parliament gets
precedence over the corresponding state law.

State legislature privileges-

The state legislature privileges are mutatis mutandis the same as those relating to
privileges of members of parliament.-

Conclusion-

India has got federal form of constitution where the powers are divided into three
organs of the government as well as at the centre and states. In this chapter we
have discussed the concept of parliament at the centre and the states legislature at
the state level. Thus we can gather from this chapter that though the doctrine of
separation of powers has not been specifically mentioned under the Indian
constitution but we can understand that the powers are divided into three wings of
the government i.e. legislature, executive and judiciary. Further the powers are
divided at the centre and the states level also. The makers of the constitution have
drafted the constitution in such a way that the powers should be distributed in order
to avoid tyranny. In such circumstances, there should not be conflict between
either of the wings as the powers are divided but that is not the case. Still there
arises some conflicts between the wings of the government which we are going to
discuss in subsequent chapters which is the very theme of this thesis.