STATE LEGISLATURE
Union Parliament
Bicameral- loksabha and Rajyasabha
Article 79 to122 in Part V of the Constitution
The executive power of the union is vested in
the president who exercises his powers and
functions with the aid and advice of the council
of ministers headed by a prime
minister.
State legislature
Mostly unicameral – only 6 states are
bicameral
Articles 168 to 212 in Part VI of the
Constitution
The same is the position of a governor of the
state who is required to act as a constitutional
head and act according to the advice of his
ministers except when he acts in his discretion.
If a bill is introduced in a House, and it passes
it, then the other House can:
1.Pass the bill as it is.
2.Reject the bill altogether.
3.Pass the bill with some modifications and
return it to the first House for reconsideration.
4.Nothing is done to the bill for 6 months,
which means both Houses are in disagreement.
In this case, a joint sitting of both the Houses
is convened and made, to break the
constitutional deadlock.
The Legislative Councils (LC) have only
advisory powers by and large.
They have lesser powers when it comes to law-
making.
If a bill is introduced in the LC, which is
passed by it, and it goes on to the Assembly:
The Assembly rejects the bill.
It passes the bill with some modifications
which are unacceptable to the LC.
There is no provision for a joint sitting of
the Council and the Assembly. In the case of
a disagreement, the decision of the Assembly is
deemed final.
Abolition or creation of legislative council

Article 168 States

• Maharashtra, Karnataka,Andhra Pradesh, Telangana,Uttar
Pradesh, Bihar

Article 169 Creation of legislative council

• the Legislative Assembly must pass a resolution that must be supported by
more than 50% of the total strength of the assembly. It must be supported by
more than 2/3rd of the total members present in voting
Composition of Houses
Article170

• The Legislative Assembly of state can have at most 500 constituencies and at least 60
constituencies.
• These constituencies would be represented by the members who would be selected through
the process of direct election.
• However, the division of territorial constituencies would be determined in such a manner
that it becomes dependent on the population of that constituency

Exceptions-Mizoram, Sikkim, and Goa which has less than 60

constituencies.
Legislative council
Article 171
• The total members in the Legislative Council should not exceed one-third of
the total members in the state Legislative Assembly.
• There is another criteria for the composition of the Legislative Council.
• The member in the Legislative Council should not be less than 40 in any
case.
• There is an exception in the composition of Vidhan Parishad. The
Legislative Council of Jammu and Kashmir has only 36 Member in
Legislative Council, unlike the other Legislative Council.
Qualification of membership
Article 173
• The qualification of membership is given in Article 173 of the Indian Constitution. For the
membership or for filling a seat in the legislature of the State, a person must be a citizen of
India.
• A person will not be granted membership if he/ she is not a citizen of that country. Also,
the qualification of the membership is somewhat similar to the qualification to the
membership of the center legislature.
• The member of the Legislative Assembly should be more than 25 years. For being a
member of the Legislative Council one should be more than 30 years.
Disqualification
ART.191 If one holds the office of profit under the
state or central government.

If one is of unsound mind and is declared so

by the competent court.

If one is an undischarged insolvent.

Art.191 If one is not a citizen of the country anymore or when he/ she
voluntarily took the citizenship of another country.

If one is disqualified by the law of the Parliament. Example-

Anti defection law.
Powers and functions
• Exclusive powers over subjects which are enumerated in List II of the
seventh schedule of the Constitution are maintained by the State Legislature
along with concurrent powers over those enumerated in the list III
• The power to originate money bills rests solely with the Legislative
Assembly.
• Recommendations can be made by the Legislative Council in respect of the
changes which it considers as required within a time limit of fourteen days
of the receipt of money bills from the assembly.
Parliamentary Privileges(105&194)

• Parliamentary privilege is a legal immunity enjoyed by

members of certain legislatures, in which legislators are
granted protection against civil liability for actions done
or statements made in the course of their legislative
duties.
◦ Article 105 and Article 194 grant privileges or advantages
to the members of the parliament so that they can perform
their duties or can function properly without any
hindrances.
Freedom of speech under parliamentary
privilege
◦ Article 105(2) that no member of parliament will be liable
in any proceedings before any Court for anything said or
any vote given by him in the Parliament or any committee
thereof.
◦ Also, no person will be held liable for any publication of
any report, paper, votes or proceedings if the publication is
made by the parliament or any authority under it.
◦ Both the Articles, Article 19(1)(a) and Article 105 of the
Constitution talks about freedom of speech. Article 105
applies to the members of parliament not subjected to any
reasonable restriction. Article19(1)(a) applies to citizens but
are subject to reasonable restrictions.
◦ Article 105 is an absolute privilege given to the members of
the parliament but this privilege can be used in the premises
of the parliament and not outside the parliament.
◦ If any statement or anything is published outside the parliament by
any member and if that is reasonably restricted under freedom of
speech then that published article or statement will be considered as
defamatory.
Collective privileges
Power to make procedure-Article 118

Publication of true reports in either house of parliament or state

assembly-Article 361A

Courts not to inquire in proceedings in the parliament-Article 122

Secret Sittings
Arrest for Criminal offences or under Preventive Detention laws:

◦ When a member is arrested on a criminal charge or for a criminal

offence or is sentenced to imprisonment by a court or is detained
under an executive order, the committing judge, magistrate or
executive authority, as the case may be, shall immediately intimate
such fact to the Speaker indicating the reasons for the arrest,
detention or conviction, as the case may be, as also the place of
detention or imprisonment of the member in the appropriate form
set out in the Third Schedule. –Rule 229
Exemption of members of legislative bodies from arrest and
detention under civil process: Section 135A of Civil Procedure Code

◦ During the continuance of a joint sitting, meeting, conference or

joint committee of the Houses of Parliament or Houses of the State
Legislature, as the case may be, and during the fourty days before
and after such meeting, sitting or conference
Conduct of house
◦ A breach of Privilege includes any disrespect of, or assault on, the privileges,
immunities and powers of the House and its Members, either by an outsider or
by a Member of the House.
◦ Breach of Privilege is a clear violation of the privileges, immunities or powers
included in Parliamentary Privilege.
◦ However, contempt is a more general concept that applies to anything that
causes an inability to carry out Members’ duties. A breach of Privilege is more
common and tends to warrant minor punishment, such as an apology.
Case Laws
◦ P.V. Narsimha Rao v. State JMM Bribery Case 1998 has held that the
privilege of immunity from courts proceedings in Article 105 (2) extends even
to bribes taken by the Members of Parliament for the purpose of voting in a
particular manner in Parliament.
◦ The majority (3 judges) of the Apex Court did not agree with the minority (2
judges) and explained that expression “in respect of” in Article 105(2) must be
given a wide meaning so as to comprehend an act having a nexus or
connection with the speech made or a vote given by a member in parliament or
any committee thereof.
◦ So interpreted, it would include within its ambit, acceptance of a bribe by a
member in order to make a speech or to cast his vote in parliament or any
committee thereof in a particular manner.
◦ Therefore, the bribe taker MPs, who had voted in parliament against no-
confidence motion were held entitled to the protection of Article 105(2) and
were not answerable in a court of law for alleged conspiracy and agreement.
◦ The court further held that the bribe taker MP, who did not vote on the no-
confidence motion was entitled to protection under Article 105(2).
◦ To the bribe giver MPs it was held, the protection under Article 105(2) was not
available. The court further ruled that the Lok Sabha could take action for
breach of privileges or contempt against the alleged bribe givers and against
the alleged bribe takers, whether or not they were members of parliament.
◦ In Pandit M.S.M Sharma v. Shri Krishna Sinha 1965, popularly known
as Searchlight case proceedings for the breach of privilege had been started
against an editor of a newspaper for publishing those parts of the speech of a
member delivered in Bihar legislative assembly which the speaker had ordered
to be expunged from the proceedings of the Assembly.
◦ The editor in a writ petition under Article 32 contended that the House of
Commons had no privilege to prohibit either the publication of the publicly
seen and heard proceedings that took place in the House or of that part of the
proceedings which had been directed to be expunged. The Supreme Court by a
majority of four to one rejected the contention of the petitioner.
◦ Das C.J., who delivered the majority judgment, observed that the House of
Commons had at the commencement of our Constitution the power or
privilege of prohibiting the publication of even a true and faithful report of the
debates or proceedings that took place within the House.
◦ Now Article 361-A inserted by the 44th Amendment Act, 1978 with effect
from June 20, 1979, provides that no person shall be liable to any proceedings
civil or criminal for reporting the proceedings of either House of Parliament or
a State Legislature unless the reporting is proved to have been made with
malice. This provision does not apply to the reporting of proceedings of secret
sittings of the Houses.
In Re Keshav Singh case, 1965
◦ Keshava Singh, a non- member, of the U.P. Assembly printed and published a
pamphlet. The Speaker of the U.P. Legislative Assembly reprimanded him for
contempt and breach of the privilege of the member Mr. Narsingh Naraina
Pandey.
◦ On the same day, Mr. Keshava Singh, who was present in the house, by his
conduct, committed another contempt in the house. The Speaker, thereupon,
directed Mr. Keshava Singh to be admitted to prison. A warrant was issued for
his detention in the jail for 7 days and he was so detained.
◦ Mr. Soloman, his advocate, moved under Section 491 CrPC read with Article
226, a Habeas Corpus petition alleging that his detention in jail was illegal and
malafide because he was not given an opportunity to defend himself.
◦ The petition was heard by 2 Judges of Allahabad High Court which granted
interim bail to Keshava Singh and he was released, pending the decision of the
case on merit.
◦ On this, the Assembly, by a resolution took the view that the 2 Judges, Mr.
Keshava Singh, and Mr. Soloman had committed Contempt of the Assembly
and ordered that the Keshava Singh be immediately taken into custody and the
2 Judges and the Advocate be brought in custody before the House.
◦ At this, the 2 Judges and the Advocate, by separate petitions moved under 226
the High Court, contended that the resolution amounted to contempt of court
and that it be set aside and its implementation be stayed by the interim order.
◦ The petition was heard by the Full Bench of all the 28 Judges of the Allahabad
High Court. The court ordered the stay of implementation of the resolution.
◦ The assembly modified its order and the warrant against the 2 Judges was
withdraw, but they were asked to appear before the House and explain their
conduct. The Judges moved an application before the Court against the
modified order and the Court granted the stay against the implementation of
the later order.
◦ At this stage, the President referred the matter to the Supreme Court, invoking
the provisions of Article 143(1), for obtaining its advisory opinion. The main
questions referred to were-
◦ Whether the legislature is the sole and exclusive Judge of its privileges and
whether it is competent to punish a person for its contempt taking place
outside the Legislature?
◦ Whether the High Court who entertained a petition of habeas
corpus challenging the validity of the detention of a person sentenced by the
assembly under a general or unspeaking warrant has committed contempt of
the Legislature?
Decision
◦ The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit
the contempt of the house by issuing an interim bail order. The Court
explained that the Court under Article 226 had jurisdiction to order the release
of a person from illegal detention.
◦ The Court said that the courts in India could examine the validity of detention
of a person, sentenced by the Assembly, under a general or unspeaking
warrant.
◦ Article 226 confers wide power on the High Court to issue the writ of habeas
corpus against any authority which under Article 12 included the Legislature.
◦ Article 121 prohibits any discussion in a State Legislature on the conduct of
any Judge of the Supreme Court or High Court in the discharge of his duties.
◦ The court further opined that it could not be disputed that in the matters of
privileges, the House was the sole and exclusive Judge provided such privilege
could be found in Article 194(3). The question whether a privilege as claimed
by the House was provided by Article 194(3) or not, was a matter for the Court
to decide. The nature and scope of Article 194(3), was thus, to be determined
by the Court.
◦ The question whether the privileges enjoyed by the Legislature under the latter
part of Article 194(3) were subject to the provisions of Part III relating to
fundamental rights, was left undiscussed. However, the Court observed that
such privileges were necessarily subject to Article 21 and 22 of the
Constitution.
State of Kerala V Ajith,2021
◦ On 13-3-2015, the then Finance Minister of Kerala was presenting budget for
financial year 2015-16 in the Kerala Legislative Assembly.
◦ The accused─Members of Legislative Assembly KT Jaleel, V Sivankutty, CK
Sadasivan, EP Jayarajan, K Ajith and Kunjammadu Master(leaders of the Left
Democratic Front, which was in opposition at that time) disrupted presentation
of the budget, climbed over to Speaker’s dais and damaged furniture and
articles including the Speaker’s chair, computer, mike, emergency lamp and
electronic panel, causing a loss of Rs 2,20,093.
◦ The Legislative Secretary reported the incident and a criminal case under
Sections 447 and 427 read with Section 34 IPC and Section 3(1) of the
Prevention of Damage to Public Property Act, 1984 was registered against the
six accused MLAs.
◦ Investigation was completed, final report was submitted, and cognizance was
taken by the Additional Chief Judicial Magistrate, Ernakulam
◦ On 21-7-2018 (when LDF had formed Government in Kerala), the Public
Prosecutor filed an application under Section 321 CrPC seeking sanction to
withdraw the case against all the accused MLAs. The case was transferred to
the court of Chief Judicial Magistrate, Thiruvananthapuram (“CJM”), who
declined to give consent to the Public Prosecutor’s application.
Appeal
◦ After CJM’s refusal, the State of Kerala filed a criminal revision petition
before the Kerala High Court. The High Court dismissed the revision petition
and affirmed the order of CJM. Aggrieved, the State of Kerala and the accused
MLAs approached the Supreme Court.
Kerala high court judgement
◦ Withdrawal from prosecution
◦ Section 321 entrusts the decision to withdraw from a prosecution to
the Public Prosecutor but the consent of the court is required for a
withdrawal of the prosecution.
◦ The Public Prosecutor may withdraw from a prosecution not merely
on the ground of paucity of evidence but also to further the broad
ends of public justice
◦ The Public Prosecutor must formulate an independent opinion
before seeking the consent of the court to withdraw from the
prosecution
◦ While the mere fact that the initiative has come from the Government will not vitiate an
application for withdrawal, the court must make an effort to elicit the reasons for withdrawal
so as to ensure that the Public Prosecutor was satisfied that withdrawal of prosecution is
necessary for good and relevant reasons.
Immunity and Priviledges
◦ The Court observed:
◦ “The persons who have been named as the accused in the FIR in the present case held a
responsible elected office as MLAs in the Legislative Assembly. In the same manner as any
other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No
member of an elected legislature can claim either a privilege or an immunity to stand above
the sanctions of the criminal law, which applies equally to all citizens.“
◦ In Court’s opinion, to claim an exemption from the application of criminal law would be to
betray the trust which is impressed on the character of elected representatives as the makers
and enactors of the law.
◦ The entire foundation upon which the application for withdrawal under Section 321 was
moved by the Public Prosecutor was based on a fundamental misconception of the
constitutional provisions contained in Article 194.
◦ The Public Prosecutor seemed to have been impressed by the existence of privileges and
immunities which would stand in the way of the prosecution.
◦ Such an understanding betrays the constitutional provision and proceeds on a misconception
that elected members of the legislature stand above the general application of criminal law.
Supreme court decision
◦ The Supreme Court found no merit in the appeal and held that the Chief Judicial Magistrate
was justified in declining consent for withdrawal of the prosecution under Section 321 CrPC.
◦ “This kind of behaviour is unacceptable,” said a bench of Justices DY Chandrachud and MR
Shah.
◦ Such kinds of incidents are increasing and they are happening even in Parliament. We can’t
condone the behaviour of MLAs who disrupt House by throwing the mike and destroying
public property,
◦ Holding a prima facie view in favour of the High Court, the top court said, “We must ensure
some modicum of decorum is maintained in legislative bodies. These are sentinels of
democracy. They are MLAs and they represent the people. What is the message being given
that my MLA is behaving in this manner? They have to face trial. There cannot be any
deference to such kind of behaviour.”