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A Comprehensive Study on Executive and Legislature Branches Of Constitution Of India Act 1950

According to the Constitution of India, the executive branch i.e., the Council of Ministers shall be collectively responsible to the legislature. The Union Executive in India consists of a President, Vice-President, the Council of Ministers and Attorney General. The Union Legislature is Parliament, which is made-up of President, Lok Sabha and Rajya Sabha.

Union Executive

The Constitution of India has adopted the parliamentary system of responsible governments and the Union Executive is responsible to the legislature. Part V of the Constitution contains the provisions with respect to the Union Government and Articles 52 to 78 deals with Union Executive.

The President

Article 52 states that, there shall be a President of India. He is the head of the state and the first citizen of India. He always comes first in the order of precedence issued by the government.
Article 53 (1) states that, the executive power of the Union vests with the President. All the executive decisions are taken in the name of the President.

Election of the President

Article 54 states that, the President is elected not directly by people, but by the members of an electoral college, consisting of:
  1. The elected members of both the Houses of Parliament.
  2. The elected members of the Legislative Assemblies of the States and selected Union Territories.

Article 55 (3) states that, the proportional representation by means of the single transferable vote system is used for the election of the President.

Term of Office

Article 56 (1) states that, the President shall hold office for a tenure of 5 years from the date on which he/she enters in the office. Even after completion of the tenure, he/she shall occupy the office unless a successor is sworn in. He/She is eligible for re-election and may be elected for any number of terms in India.

Eligibility Criteria and Oath

Article 58 defines the eligibility criteria for the office of the President. A President must be:
  1. A citizen of India.
  2. 35 years of age or above.
  3. Qualified to become a member of the Lok Sabha.
A person shall not be eligible for election as President, if he holds any office of profit under the Government of India or the government of any state or under any local or other authority, subject to the control of any of the said governments.

Article 60 says that the oath or affirmation of office to the President is administered by the Chief Justice of India and in his absence, the senior-most judge of the Supreme Court available.
The salary and allowances of the President are fixed by the Parliament of India. The current salary of the President is 5 lakh per month.

Conditions and Privileges of President's Office

Article 59 (1) says that the President shall not be a member of either House of Parliament or State Legislature. If he is, then he is deemed to have vacated his seat in that house on the date on which he enters upon the office as President. He is entitled to such emoluments, allowances and privileges as may be determined by Parliament. His emoluments and allowances cannot be diminished during his term of office. The President shall not hold any other office of profit.

Impeachment of the President

Article 61 says that, President is to be impeached for the violation of the Constitution and the charge shall be preferred by either House of the Parliament. The charges shall be signed by one-fourth members of the house and a 14 days' notice should be given to the President.

Such resolution has been passed by a majority of not less than two-third of the total membership of the house. The other house shall investigate the charge and the President shall have the right to appear and to be represented at such investigation. The investigation resolution must be passed by a majority of not less than two-thirds of the total membership of the house. Then, the President stand, removed from his office from the date when the resolution is passed. Nominated members of either house participate in the impeachment process. The elected members of the Legislative Assemblies of States and UTs do not participate.

Powers and Functions

The important powers and functions performed by the President are discussed below under the following heads

Executive Powers

All executive actions of the Government of India are taken in his name. He can make rules for efficient transaction of business of the government. He appoints the Prime Minister and the other ministers who hold office during his pleasure. He also appoints the CAG, the Chief Election Commissioner and other Election Commissioners, the Chairman and member of UPSC, Governor and so on. He can appoint an inter-state council to promote centre-state and inter-state co-operation. He can declare any area as scheduled area and has powers with respect to the administration of scheduled areas and tribal areas.

Legislative Powers

The President summons both the Houses of Parliament and prorogues them. He can dissolve the Lok Sabha. The President uses these powers on the advice of Council of Ministers. President inaugurates the Parliament after every general election and also begins the first session each year. All bills become law after the assent of the President. He can promulgate ordinances when both the houses are not in session. Incase of hung parliament, he invites any party to prove the majority. If the majority is still not achieved, the President can call for a new election.

Financial Powers

No demand for a grant can be made except on his recommendation. The money bill can be introduced only after his prior recommendation. He can make advances out of the contingency fund of India to meet any unforeseen expenditure. He constitutes Finance Commission after every 5 years.

Diplomatic Powers

The international treaties and agreements are negotiated and concluded on behalf of the President. He represents India on international forums. He sends and receives diplomates like Ambassadors, High Commissioners and so on.

Military Powers

He is the head of all forces of India. He appoints chiefs of Army, Navy and Air Force. He can declare war or conclude peace, subject to the approval of the Parliament.

Judicial Powers

He rectifies judicial errors. He has the power to grant pardons and reprieves from punishment. The President can also seek the opinion of the Supreme Court on legal and constitutional matters and on matters of national and people's interest as per the Article 143(1). As per Clause (2) of Article 143, the President may, notwithstanding anything contained in the provisions to Article 131, refer a dispute of the kind mentioned in the said provision to the Supreme Court for opinion. The Supreme Court shall, after such hearing as it thinks fit, report to the President, its opinion thereon.

Presidential Pardon

A President is empowered with the power to pardon under Article 72 of the Indian Constitution. Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to Suspend, remit or commute the sentence of any person Convicted of any offence.

The meaning of these terms, which is as follows:

Commutation: It is reduction of punishment from death sentence to life imprisonment.

Remission: It is quantitative reduction of punishment without affecting nature of punishment.

Respite: It means reduction of punishment in view of a special fact.

Reprieve: It implies a stay of death sentence or life imprisonment pending an appeal for pardon commutation.

Veto Powers

The President enjoys three veto powers which can be used to deny the execution of an action recommended by Parliament. These are:

Absolute Veto

It refers to the power of the President to withhold his assent to a bill passed by the Parliament. The bill then ends and does not become an act. Usually, this veto is exercised in the following two cases:
  1. With respect to private members bill (i.e. bills introduced by any Member of Parliament who is not a minister) and
  2. With respect to the government bills, when the Cabinet resigns (after passing of the bill but before the assent by the President) and the new Cabinet advises the President not to give his assent to such bills.

Suspensive Veto

The President exercises this veto when he returns a bill for reconsideration of the Parliament. However, if the bill is passed again by the Parliament with or without amendments and again presented to the President, it is obligatory for the President to give his assent to the bill. This means that the presidential veto is overridden by a re-passage of the bill by the same ordinary majority.

Pocket Veto

In this case, the President neither ratifies nor rejects or returns the bill, but simply keeps the bill pending for an indefinite period. This power of the President not taking any action (either positive or negative) on the bill is known as Pocket Veto. The President can exercise this veto power as the Constitution does not prescribe any time-limit within which he has to take the decision with respect to a bill presented to him for his assent.

Discretionary Powers

He always acts on the aid and advice of the Council of Ministers (CoM), except:
  1. In appointing the Prime Minister, when no single party attains majority after the elections.
  2. While exercising a pocket veto.
  3. Can return the Bill and advice the Council of Ministers for the reconsideration.
  4. He can refer a decision of an individual minister for the collective consideration of CoM.


Emergency Powers

Article 352 National emergency can be declared on grounds of war, external aggression or armed rebellion.
Article 365 President's rule can be proclaimed in a state on grounds of failure of the constitutional machinery in the state.
Article 360 The President can proclaim financial emergency.

The Vice-President

Article 63 of the Constitution provides for the Vice-President of India. He is the second-highest constitutional officer in the country.

Election of the Vice-President

Article 66 (1) states that, the Vice-President is elected by an electoral college consisting of members of both houses of parliament, on the basis of proportional representation by means of the single transferable vote. He is not a member of either house of Parliament or of legislature of any State.

Eligibility Criteria

A person cannot be elected as Vice-President, unless he/she:
  1. Is a citizen of India.
  2. Has completed the age of 35 years.
  3. Qualified for election as a member of the Council of States.
Not hold any office of profit under the government of India or State or any local or other authority. An election to fill a vacancy caused by the expiry of the term of office of Vice-President is completed before the expiry of the term. A vacancy arises by reasons of death, resignation or removal, the election is held as soon as possible to fill the vacancy.

Impeachment of Vice-President

The Vice-President may resign his office by submitting his resignation to the President of India. He can be removed from office by a resolution of the Rajya Sabha, passed by a majority of its members at that time and agreed to by the Lok Sabha.

Term of Office and Salary

Article 67 states that, the Vice-President shall hold office for a term of five years from the date on which he enters upon his office. There is no fixed retirement age to the Vice-President, as he or she can remain in the post for five years. However, he or she can be re-elected as the Vice-President for any number of times. The Vice-President is entitled to receive the salary, which presently amounts to 4 lakh per month. However, when the Vice President performs the functions of the President or discharges the duties of the President, in the latter's temporary absence, he is entitled to the salary as well as special privileges of the President.

Powers and Functions

He acts as the ex-officio Chairman of Rajya Sabha. His powers and functions are similar to those of the Speaker of Lok Sabha. He acts as President when a vacancy occurs. He can act as President only for a maximum period of 6 months within which a new President has to be elected. When the siting President is unable to discharge his functions due to absence, illness or any other cause, he discharges his functions until the President resumes his office.

Council of Ministers

There shall be a Council of Ministers with the Prime Minister as a head, to aid and advise the President, who shall in the exercise of his functions, act in accordance with such advice. (Article 74 and 75)

Any advice given by ministers to the President shall not be inquired into by any court. The Prime Minister shall be appointed by the President and other ministers shall be appointed by the President on the advice of the Prime Minister. The total number of ministers, including the Prime Minister, in the Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha. This provision was inserted in Article 72 [1 (A)] added by 91st Amendment Act, 2003.

A member of either House of Parliament belonging to any political party, who is disqualified for being a member of that house under 10th Schedule, shall also be disqualified to be appointed as a minister. The ministers shall hold office during the pleasure of the President. A minister who is a member of one house of Parliament has the right to speak and to take part in the proceedings of the other house also, but he can vote only in the house in which he is a member.

A minister, who, for any period of 6 months, is not a member of either house of Parliament, shall at the expiration of that period cease to be a minister. Article 75 (3) says that, the Council of Ministers are collectively responsible to the house of people. Article 75 (2) says that, the minister shall hold office during the pleasure of the President.

Prime Minister

The President is the nominal executive (de-jure) authority and the Prime Minister is the real executive authority (de-facto). Most of the executive powers are exercised by the Prime Minister. He acts as an advisor to the President and is the leader of the Council of Ministers. The President appoints the Prime Minister of India and on his advice, appoints the Council of Ministers. The Prime Minister can be a member of either the Lok Sabha or the Rajya Sabha.

Power and Functions

He recommends to the President, those persons who are to be appointed as ministers. He allocates and reshuffles various portfolios among the ministers. He can ask a minister to resign or advise the President to dismiss him. He guides, directs, controls, and coordinates the activities of all the ministers. He advises the President regarding the various appointments like CAG, the Chairman, and members of the UPSC etc.

He is the main communication channel between the President and the Council of Ministers. He provides information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for. He advises the President with regard to the summoning and proroguing of the sessions of the Parliament. Prime Minister is the representative of the country and he plays a major role in directing India's foreign policy. All the important decision-making bodies in India like the Union Cabinet and the Planning Commission run under his supervision.

Election of the Prime Minister

India follows a parliamentary form of government, wherein the executive powers of the government are vested in the hands of the Prime Minister. The Prime Minister of India is not directly elected by the people, rather he or she is appointed by the President. The leader of the political party which secures an absolute majority in the Lok Sabha will be appointed as the Prime Minister of the country.

Eligibility Criteria

To be eligible for the position of the Prime Minister of India, a person should be a citizen of India. Member of either the Lok Sabha or the Rajya Sabha. Complete 25 years of age as if he is a member of the Lok Sabha or 30 years if he is a member of the Rajya Sabha. A person cannot be the Prime Minister of India if he holds any office of profit under the Government of India, the government of any State, or any local or other authority subject to the control of any of the said governments.

Term of Office

The Prime Minister in India has no fixed term, he holds office as long as he enjoys the majority support in Lok Sabha. He has to resign if he looses the support of the majority anytime during the tenure of the Lok Sabha, which is 5 years.

Parliament of India

The Parliament of India forms the cornerstone of Indian democratic political set-up. It is indeed the conscience-keeper of the nation-state. Article 79 to 122 in Part V of the Constitution deal with the organisation, composition, duration, officers, procedures, privileges and powers of the Parliament.

The Parliament is the supreme legislative institution of India. The first general elections under the new Constitution were held during the year 1951-52, and the first elected Parliament came into being in April 1952. In 1954, the Hindi names Rajya Sabha and Lok Sabha were adopted, by the Parliament, of the Council of States and the House of the people respectively.

Qualifications for Members

A person shall be deemed eligible to become a Member of Parliament, if he or she is a citizen of India, age not less than 25 years for Lok Sabha and not less than 30 years in case of Rajya Sabha.

Disqualifications for Members

A person shall be disqualified from being a member of house of the Parliament, if;
He hold office of profit under the Government of India, he is of unsound mind, he is not a citizen of India or has voluntarily acquired the citizenship of foreign state or is under any acknowledgement of allegiance or adherence to a foreign state, he is disqualified under any law made by Parliament.

Disqualification on Grounds of Defection

Apart from Article 102, the Tenth Schedule to Constitution provides for disqualification of the members on grounds of defection. Defection refers to desertion of one's party in favour of an opposing one. As per the provisions of the Tenth Schedule, a person shall be disqualified, if A member voluntarily gives up his membership of the political party of which he is belonging, he abstains from voting contrary to the direction of his political party, he defects from his party after elections.

However, a nominated member is allowed to join a political party, provided he joins such political party of his choices within a period of six months. After that period, joining a political party would lead to defection and disqualification.

Anti-Defection Law

It was passed in 1985 by the 52nd Amendment Act, which added the Tenth Schedule to the Constitution. The 91st Constitutional Amendment Act, 2003 provided disqualification on the ground of defection not to apply in case of split. The power to disqualify a member rests with the Chairman/Speaker of the house.

Houses of Parliament

Rajya Sabha

There are 250 members in Rajya Sabha, of whom 12 shall be nominated by the President, having special knowledge in literature, science, art, and social service and rest 238 shall be the representatives of States and Union Territories. The States are given proportionate representation according to their population. Presently, the actual strength of Rajya Sabha is 245 (233 elected and 12 nominated members).

Tenure and Election of Rajya Sabha Members

Rajya Sabha is a permanent body and is not subject to dissolution, but one-third of its members retire every two years. The retiring members are eligible for re-election and re-nomination any number of times. The Rajya Sabha has 6 years of tenure according to the Representation of the People Act, 1951. The Constitution has not fixed the term of office. The members are elected by the elected members of the respective State Legislative Assembly on the basis of proportional representation by the means of a single transferable vote.

Presiding Officers of Rajya Sabha

The vice-President is the ex-officio Chairman of Rajya, Sabha. Rajya Sabha also elects one of its members to be the Deputy Chairman. When the Chairman acts as the President, the duties of the office shall be performed by the Deputy Chairman. The functions of Chairman are similar to that of the Speaker in Lok Sabha, i.e. to conduct the orderly business of the house. There is a panel of Vice-Chairman in Rajya Sabha and its members are nominated by the Chairman. In the absence of the Chairman and Deputy Chairman, a member from the panel of Vice-Chairman presides over the proceedings of the house.

Lok Sabha

It is composed of representatives of the people, elected directly by them on the basis of adult suffrage. The strength of the house is 552, out of which 530 members to represent the States and 20 members are from Union Territories. Also 2 Anglo-Indian members are nominated by the President. When the seat of an elected member of the house becomes vacant or is declared vacant or his or her election is declared void, the same is filled through election.

Tenure of Lok Sabha

The normal tenure of Lok Sabha is of 5 years. The 42nd Amendment Act increased the normal tenure to 6 years, which the 44th Amendment Act brought it down to 5 years. But during an emergency, its tenure may be extended by Parliament for a period not exceeding 1 year at a time and not exceeding in any case beyond a period of 6 months after the proclamation has ceased to operate.

Election of Lok Sabha

For elections, each state is divided into territorial constituencies. 42nd Constitutional Amendment froze the readjustment in constituencies for election to Lok Sabha and State Legislative Assemblies, after every Census held in an interval of ten years, at the point of 1971 Census till the holding of the first Census after the year 2000. This ban on readjustment was extended up to the year 2026 by the 84th Amendment Act of 2001.

Presiding Officers of Lok Sabha

Speaker

Speaker is the head of the Lok Sabha and has the responsibility of conducting the business of the house according to the rules of the house.

He may be terminated from the office in any of the following ways:
  1. By his/her ceasing to be a member of the house.
  2. By resignation in writing to the Deputy Speaker.
  3. By removal from office by a resolution passed by a majority of all the members of the House.

Power and Functions of Speaker

Speaker enjoys a special position in the house and his decisions are final and binding. He certifies a bill to be a money bill under Article 110. He presides over joint sittings. He chairs the Business Advisory Committee, Rules Committee, General Purpose Committee. When the Lok Sabha is dissolved, all the members cease to be the member of the Lok Sabha. However, the Speaker continues in his office till the next Lok Sabha is constituted.

Pro-Tem Speaker

The senior-most member of the Lok Sabha is appointed as Pro-Tem Speaker. He presides over the house when the oath-taking session is going on for the newly elected members of the Lok Sabha.

Deputy Speaker

He presides the Lok Sabha when the Speaker is absent due to various reasons like death or illness or on leave. He is elected for a tenure of 5 years from amongst the members of the Lok Sabha.

Sessions of the Parliament

Normally three sessions of the Parliament are held in a year, i.e.
  1. Budget Session
  2. Autumn or Monsoon Session
  3. Winter Session
There should not be a gap of more than 6 months between two consecutive sittings of the House.

End of the Session

Adjournment: During the session, the house may be adjourned for the day to day work and reassemble after a certain period of time.

Prorogation: It means the termination of a session of the house by an order made by the President under Article 85 (2) (a).

Dissolution: It means the end of the life of Lok Sabha. Dissolution is irrevocable.

Joint Sitting of Houses:To resolve a deadlock between the two houses, in case of an ordinary legislation, the Constitution provides for the joint sitting of both Houses.

Parliamentary Proceedings

Question Hour

The first hour of a sitting of Lok Sabha is devoted to questions and that hour is called the Question Hour. Type of questions can be classified as:
  1. Starred Question
  2. Unstarred Question
  3. Short Notice Question

Short Duration Discussion

During this duration, members discuss the matters of urgent public importance without any formal motion or vote thereon.

Half-an-Hour Discussion

Any member can table a notice for raising half-an-hour discussion. If the notice is admitted and gets priority in ballot, such a discussion may be allowed by the speaker.

Zero Hour

The time immediately following the question hour and before any listed business is popularly known as zero hours.

Motion

The term motion in parliamentary parlance means any proposal made for the purpose of eliciting a decision of the House.

Motion can also be classified as:

Calling Attention Motion: It is an Indian innovation which combines asking a question with supplementary and making brief comments.

Adjournment Motion: It is the procedure for adjournment of the business of the house for the purpose of discussing a definite matter of urgent public importance.

No-Confidence Motion: It moves against the government. If it is passed, then the government ceases to its existence.

Censure Motion: It can be moved only in Lok Sabha under rule 184. The grounds for moving censure motion have to be tabled before the speaker. He can disallow or vote upon after a debate.

Legislative Proceedings

All legislative proposals are initiated in the parliament in terms of Bills. The Bill is proposed legislation. It becomes law when it is asserted by the President.

Types of Bill

Ordinary Bill: All the bills other than money Dill, financial bill, and the constitutional amendment bills are ordinary bills.

Money Bill: According to Article 110, a bill shall be deemed to be a money bill if it is related to matters of imposition, abolition, remission, alteration, or regulation of any tax. Speaker decides whether a bill is a money bill or not. His decision is not questionable in any house and final in itself.

Financial Bill: It does not exclusively deal with all the matters specified in Article 110(1) (a) to (g). It deals under Article 117(1).

Constitution Amendment Bill: It is the bill mentioned under Article 368.

It amends the Constitution in three ways:

  1. Amendment with a simple majority.
  2. Amendment with a special majority.
  3. Amendment with a special majority of parliament and ratified by half of the states.

President Assent to the Bill

When the President provides assent to the bill, it will become law.

State Executive

The State executive consists of the Governor, the Council of Ministers, and the Advocate General. Article 153 to 212 in Part VI of the Constitution deals with the State Governments. Though these are similar to that of Union Governments, there are some differences as well.

Governor

The Constitution provides for an office of the Governor in the states under Article 153. There is a Governor for each state, but the 7th Constitution Amendment Act, 1956, facilitated the appointment of the same person as a Governor for two or more states. He is the Chief Executive and head of the state but nominal in nature. The real executive power remains with the Council of Ministers headed by the Chief Minister.

Qualifications for Governor

Article 157 defines the qualifications of the Governor as:

He is a citizen of India. He has completed the age of 35 years.

Conditions for Office

He should not be a member of either house of Parliament-or State Legislature. He should not hold the office of profit. His emoluments, allowances and privileges are determined by the parliament and should not be diminished during the office.

Privileges of the Governor

He enjoys personal immunity from legal liability for his official acts. He is immune from criminal proceedings, even in respect of his personal acts. However, after giving two months notice, civil proceeding can be instituted against him during his term of office in respect of his personal acts.

Powers and Functions of Governor

Governor possesses executive, legislative, financial, and judicial powers. He has no diplomatic, military, or emergency powers like the President.

Executive Powers

All the executive actions of the State Government are formally taken in the name of the Governor. He appoints the Chief Minister and other ministers on the advice of the Chief Minister. He appoints the Advocate General of state and determines his remuneration. He appoints the state Election Commissioner, Chief Secretary, Chairman and the members of the State Public Service Commission, State Election Commissioner etc. If the Governor is satisfied that the members of the Anglo-Indian community are not adequately represented in Vidhan Sabha, he may nominate one member.

Legislative Powers

He addresses the State Legislature's first session after every general election. He decides on the question of disqualification of the members of the State Legislature in consultation with the Election Commission. He can promulgate ordinances under Article 123. These ordinances must be approved within 6 weeks from its reassembly. He can withdraw the ordinances at any time. When the bill is sent to the Governor, he
  1. May give his assent to the bill.
  2. Withhold his assent to the bill.
  3. Return the bill for reconsideration.
  4. May reserve the bill for the consideration of the President.

Financial Powers

Money bill can be introduced in the State legislature only with the prior recommendation of the Governor. He can make advances out of the contingency fund of the State. He constitutes State Finance Commission after every 5 years.

Judicial Powers

He can grant pardons, reprieves, respites, and remissions of punishment. He is consulted by the President while appointing the judges of the state High Court. Under Article 233, he makes an appointment, postings, and promotions of the District Judges in consultation with State High Court.

Discretionary Powers
  1. Recommendation for the imposition of the President's rule in the state.
  2. Exercising function as the administrator of an adjoining Union Territory.
  3. Appointment of the Chief Minister, when no party has a clear-cut majority.
  4. Dismissal of the Council of ministers, when it cannot prove the confidence of the state legislative Assembly.
  5. Determining the amount payable by the State of Assam to the autonomous Tribal District Council as royalty accruing from licenses for mine exploration.

Chief Minister and Council of Ministers

The Chief Minister is the real executive and is the head of the government of a State. Every state shall have a Council of Ministers headed by the Chief Minister to aid and advise the Governor. Normally, the leader of the party having a majority in Vidhan Sabha is appointed as the Chief Minister by the Governor. The Chief Minister shall hold office during the pleasure of the Governor. The Council of Ministers shall be collectively responsible to the State Legislative Assembly. The Governor shall administer the oaths of office and secrecy to a minister. 91st Amendment Act (2003) has added two provisions, which are as follows:
  1. The total number of ministers including the Chief Minister shall not exceed 15% of the total strength of the Legislative Assembly. But it should not be less than 12.
  2. A member of either house of State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.

Powers and Functions of Chief Minister

He recommends persons to be appointed as the ministers by the Governor. Allocates and reshuffles the portfolios among the ministers. Can ask a minister to resign or advise the Governor to dismiss the minister in case of difference of opinion. Chief Minister is the principal channel of communication between the Governor and the Council of Ministers.

He communicates to the Governor of all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation. He advises the Governor with regard to the appointment of important officials. He advises the Governor with regard to the summoning and proroguing of the sessions of the State Legislature. He announces the government policies on the floor of the house.

The State Legislature

Article 168 to 212 in Part VI of the Constitution deal with the organization, composition, duration, officers, procedures, privileges, powers, etc.

Composition of the Houses (The Legislative Council)

The number of members of the Legislative Council not to exceed one-third of the total strength of the State Assembly, but it should not be less than 40. 1/3rd to be elected by electorates consisting of members of the Panchayats, Municipalities, District Boards, etc. 1/3rd to be elected by the Legislative Assembly. 1/12th to be elected by the graduates of 3 years standing residing in the State.

1/12th to be elected by the persons having teaching experience of 3 years in educational institutions. 1/6th to be nominated by the Governor from among the distinguished persons of the society in the fields of literature, science, arts, cooperative Movement, and social service. The legislature of every State consists of the Governor and one or two houses. The State of Bihar, Maharashtra, Karnataka, Uttar Pradesh, Andhra Pradesh and Telangana are bicameral i.e. having both the Legislative Assembly and the Legislative Council. The members of the legislative council are elected for a term of 6 years and one-third of its members retire every two years.

Creation and Abolition of Legislative Council

The Parliament under Article 169 is empowered to create or abolish the legislative council in a State where the Legislative Council is to be created or abolished.

The Legislative Assembly

In Legislative Assembly, members are directly elected by the people for a term of 5 years, unless the house is dissolved by the Governor. The strength of the house should not be less than 60 or more than 500, however, the strengths of Goa and Sikkim legislatures are 40 and 32 respectively which are less than 60. The Governor may nominate one member from the Anglo-Indian Community to this house.

Membership of State Legislature (Qualifications to be a Member)

He must be a citizen of India. He must not be less than 30 years of age in the case of the legislative council and 25 years in the case of a legislative assembly. He must possess other qualifications prescribed by Parliament.

Disqualifications

The person shall be disqualified if he holds any office of profit. The person shall be disqualified if he is of unsound mind and stands so declared by a court. He is an undischarged insolvent. Under Article 191 (2), a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council under the 10th Schedule.

Legislative Procedure

In Unicameral Legislature, every bill originates in the legislative assembly, duly passed by it, and then sent to the Governor for his assent. In Bicameral Legislature, the process, however, in the case of ordinary and other financial bills, the process is different, from that in Parliament.

The process regarding Financial and Ordinary Bills

The Bill should be passed by both the houses. After a Bill has been passed by the Legislative Assembly of a State having a Legislative Council and transmitted to the Legislative Council, there are three possibilities namely:
  1. The Bill is rejected by the Council.
  2. More than 3 months elapsed from the date on which the Bill is laid before the council without the Bill being passed by it.
  3. The Bills passed by the council with amendments then the bill returns to the Legislative Assembly. It may or may not accept the recommendations.

If after a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council, there are three possibilities, namely:
  1. The Bill is rejected by the council.
  2. More than 1 month elapsed from the date on which the Bill is laid before the council without the bill being passed by it.
  3. The Bill is passed by the Council with amendments to which the Legislative Assembly does not agree.
The Bill shall be deemed to have been passed by both the houses in the form in which it was passed by the Legislative Assembly for the second time. The Legislative Council has the power to introduce the Bill, but if the Legislative Assembly rejects it, that is the end of the Bill. The two houses meet jointly only on one occasion i.e. the Governor's address after the general election or at the commencement of the first session of each year.

Presiding Officers of the State Legislature

Speaker: He is the head of the Legislative Assembly. He presides over and controls the legislative functions, but also acts as the Head of the Secretariat of the Legislative Assembly which continues to function even after the house is dissolved.

Powers of Speaker

His functions are similar to that of the Speaker of the Lok Sabha like he maintains the order and decorum in the Assembly. He certifies that the bill is money bill. If the Speaker is a member of any committee, he is the ex-officio chairman of such committee.

Chairman of Legislative Council

The chairman is elected by the council itself from amongst its members. He may vacate his office by resigning in writing to the Deputy Chairman or if he ceases to be a member of the council.

Center-state Relations

In our federal set-up, the Centre and the States derive the power independently from the Constitution. Each has its own sphere of political authority and neither is subordinate to any other. The Centre-State relations are comprehensive in nature as they cover the entire range of administrative, legislative, and financial powers.

Legislative Relations

The legislative relations between the centre and states governments are discussed in Part XI from Articles 245 to 255 of the Constitution.

Territorial Extent of Central and State Legislation

Article 245(1) says that, Parliament may make laws for the whole or any part of the territory of India and the legislature of a state may make laws for the whole or any part of the State.
Article 245(2) states that, Laws of Parliament are not applicable in the matter of Union Territories (Andaman and Nicobar, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu). President can make regulation in these Union Territories.

Distribution of Legislative Subjects

Constitution provides a three-fold distribution of legislative subjects between Centre and State. These are:
  1. Union List
  2. State List
  3. Concurrent List
Parliament has exclusive power to make laws with respect to any of the matter enumerated in the Union list (having 100 items). Whereas, State Legislature have power over State list matters (having 61 items). Parliament and State legislature have power to make laws with respect to any of the matter of concurrent list (having 52 items). The 42nd Amendment Act, 1976, transferred 5 Subjects from State list to Concurrent list, i.e. education, forests, weights, protection of wild animals and birds and organisation of all Court except the Supreme Court and the High Courts. Residue power lies with the Parliament.

Power of Parliament to Legislate on State List

When Rajya Sabha passes a resolution. During national emergency (Article 250). Power of Parliament to legislate for two or more states (Article 252). To implement International Treaties, agreements or conventions (Article 253). During President's rule.

Centre's Control over the State Legislation

Under Article 200, the Governor is empowered to reserve a bill for the President's consideration. Under Article 288(2), a State is authorised to impose taxes on water, electricity-stored, generated, consumed or distributed by the central authority. E.g. National Thermal Power Corporation (NTPC), National Hydel Power Operation etc.

Under Article 304(b), the State legislature is authorised to pass bills regarding the imposition of reasonable restrictions on the freedom of trade, commerce and inter course within the state in public interest.

Taxes levied and collected by the Centre, but assigned to the States. (Article 269) For example, taxes on railway fares and freights, taxes on the sale or purchase of goods other than newspapers etc.

Taxes levied and collected by the Union and distributed between the Union and States. (Article 270)

Surcharge on certain taxes and duties for purposes of the Centre. (Article 271)

Grants in lieu of export duty on jute and jute products. (Article 273)

Grants from the Union to certain States. (Article 275)

Administrative Relations

Articles from 256 to 263 in Part XI of the constitutions deal with the administrative relations between the Centre and the States. Power of the Union Government to entrust some responsibilities to the State Governments. (Article 256)

Power of the Union to issue directions to the State Governments. (Article 258)

Provision for the creation of All India Services. (Article 312)

Appointment of the Governors. Integrated judiciary enforces both the central laws as well as state laws. Relations through Public Service Commission. During national emergency under Article 352, the Centre becomes empowered to give directions to the state matter. During State emergency under Article 356, the President assumes himself the functions vested in State Governments. During financial emergency under Article 360, the Centre can direct the states to observe cannons of financial propriety.

Financial Relations

The financial relations between the Union Government and the States are discussed in Part XII from Articles 268 to 293 of the Constitution of India. In a federation, the Centre and the units are given their separate sources of revenues, so that they can stand on their feet. The Constitution provides the provision for the distribution of finances between the Centre and the States. The recent initiative of goods and services tax is further expected to refine the financial relations between the Centre and the States.

Article 268 of the Constitution lays down that the stamp duties and excise duties on medicinal and toilet preparations are as mentioned in the Union List shall be levied by the Government of India, but shall be collected by the States. The proceeds in any financial year of any such duty leviable within any State shall not form part of the consolidated fund of India, but shall be assigned to the State.

Finance Commission

The Finance Commission is constituted by the President under Article 280 of the Constitution, mainly to give its recommendations on distribution of tax revenues between the Centre and the States and amongst the States themselves. It is a quasi-judicial body.

Functions of Finance Commission

It is the duty of the commission to make recommendations to the President, as to the distribution of the net proceeds of taxes between the Centre and the States. The principles which should govern the grants in aid of the revenues of the States out of the Consolidated Fund of India. The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats, and Municipalities in the State. Any matter referred to the commission by the President, the interests of sound finance.

Inter-State Relations

The Indian federal system depends not only on the centre-state relations foe successful functioning, but also depends on inter-state relations.

Inter-State Water Disputes

Under Article 262, Parliament, may by law, provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any state rivers of inter-state river or river valley.

Parliament, may by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to, Parliament has enacted two laws i.e.
The River Boards Act, 1956
Inter-State Water Disputes Act, 1956

Inter-State Council

It serves a purposeful mechanism to bring various autonomous executive agencies of the State machinery, both the Union and the States and coordinate amongst them. The ways and means of execution and implementation of policies concerning common interests, both regional as well as national. The Inter-State Council is formed under Article 263. The council is a recommendatory body with the following duties:
  1. Investigating and discussing such subjects, in which some or all of the States or the Union and one or more of the States have a common interest.
  2. Making recommendations upon any such subject and in particular recommendations for the better coordination of policy and action.
The Inter-State Council consists of the Prime Minister and several other Union Ministers, Chief Ministers of all the States and UTs, Administrators of UTs and such other authorities as nominated by the Union Government.

Zonal Councils

Zonal Councils were setup to supplement the coordination among regional states. The Union Home Minister is the ex-officio Chairman of the council along with the respective Chief Ministers of States.

Composition of the Zonal Councils
  1. The Northern Zonal Council comprising the States of Haryana, Himachal Pradesh, Punjab, Rajasthan, National Capital Territory of Delhi and Union Territory of Chandigarh, Jammu and Kashmir, and Ladakh. Its headquarters are at New Delhi.
  2. The Central Zonal Council comprising the States of Chhattisgarh, Uttarakhand, Uttar Pradesh and Madhya Pradesh and headquarters are at Allahabad (now Prayagraj).
  3. The Eastern Zonal Council comprising the States of Bihar, Jharkhand, Odisha, and West Bengal and headquarters are at Kolkata.
  4. The Western Zonal Council comprising the States of Goa, Gujarat, Maharashtra and the Union Territories of Daman and Diu and Dadra and Nagar Haveli and headquarters are at Mumbai.
  5. The Southern Zonal Council comprising the states of Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu and Union Territory of Puducherry and headquarters are at Chennai.
  6. North-Eastern Zonal Council comprising the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Sikkim and headquarters are at Shillong (Meghalaya).

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