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A Chequered History

Even though legislative councils in states are not mandatory, it is time that Parliament makes a law to align their composition with the third tier of government in order to provide an organic linkage between the two

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By Vivek Agnihotri

The council of ministers of the government of West Bengal, in its first meeting on May 17, 2021, took the decision to set up a legislative council. In its manifesto, the Trinamool Congress had promised the formation of the council. Some members of the party who could not contest the election or lost it could be nominated straightaway to the council, at least till such time as the election to it is held.

Mamata Banerjee, having lost the election to the legislative assembly, could be elected or nominated to the council in order to continue to hold her post as chief minister (CM) if she does not choose to go back to her tried and tested assembly constituency of Bhawanipore (which sent her to the assembly in 2011 and 2016). The sitting MLA of Bhawanipore, Sobhandeb Chattopadhyay, the agriculture minister, has resigned his seat to accommodate her.

Of course, there have been several instances of CMs being members of a legislative council. In 2020, Uddhav Thackeray, Maharashtra’s CM, had sought election to the council, having failed to get the governor to nominate him to the said body. In 2017, UP CM Yogi Adityanath was an MP and later elected to the state legislative council.

A few years earlier, a similar situation arose when Akhilesh Yadav, a Lok Sabha MP from Kannauj, was appointed UP CM in 2012. He chose to become a member of the legislative council. Mayawati, the CM before Yadav (2007-12) too was a member of the legislative council. Nitish Kumar, seven times CM of Bihar, has all along been a member of the legislative council.

As constitutional bodies, legislative councils of states have had a chequered history. The upper house (legislative council) of the bicameral legislature of West Bengal came into existence in 1952. The state’s legislative assembly passed a resolution for the abolition of the council on March 21, 1969. Later, the Parliament passed the West Bengal Legislative Council (Abolition) Act, 1969.

At present, after the reorganisation of J&K in 2019 (among other things abolishing the legislative council of the state), there are only six states that have a legislative council—Andhra Pradesh, Bihar, Kar­nataka, Maharashtra, Telangana and Uttar Pradesh. In Madhya Pradesh, an Act was passed in 1956 to establish a legislative council, but the notification to give effect to it is yet to come. Proposals to create legislative councils in Rajasthan and Assam could not receive the approval of Parliament.

Post-independence, legislative councils have been abolished after initial establishment in Andhra Pradesh (1985), Punjab (1970), Tamil Nadu (1986) and West Bengal (1969). In Andhra Pradesh, a legislative council was first set up in 1958 on the basis of a resolution of the APLA of 1956. NT Rama Rao, the founder of the Telugu Desam Party in 1982, got the APLC abolished in 1985. He described it an unproductive burden on the exchequer, an unelected and unrepresentative body used to distribute political favours to out-of-work politicians and the cause of delays in passing purposeful legislation. These were more or less the arguments advanced more than three decades later by an unlikely follower, Jagan Mohan Reddy. After a failed attempt, the APLC was revived in 2007 by YSR Reddy.

In Tamil Nadu, in 2010, following the passing of a resolution by the assembly for the revival of the legislative council, the Parliament enacted a law for the purpose. However, before the Act could be notified, the new legislative assembly (with the changed ruling party) passed another resolution in 2011 seeking the abolition of the proposed council. Accordingly, the Tamil Nadu Legislative Council (Repeal) Bill, 2012 was also introduced in the Rajya Sabha on May 4, 2012, as a measure of abundant precaution, perhaps. Tamil Nadu, therefore, does not have a legislative council at present.

This waxing and waning of legislative councils in states is, to a large extent, due to a weak provision for them in the Constitution. Unlike the Council of States (Rajya Sabha), legislative councils at the state level are not mandatory.

According to Clause (1) of Article 169, the Parliament may by law provide for creation and abolition of the legislative council of a state if the legislative assembly there passes a resolution to that effect by a special majority, i.e. 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.

Thus, creation and abolition of a legislative council in a state is optional. Moreover, on account of “may” in the clause, the Parliament is not bound to act on the resolution of the state. Further, since Article 168 lists the names of the states which have two Houses, every time a legislative council is created or abolished, this Article needs to be modified. In this context, Clause (3) of Article 169 provides that these changes can be carried out without having to follow the procedure prescribed in Article 368 for amendment of the Constitution.

As per Article 171 clause (1) of the Indian Constitution, the total number of members in the legislative council of a state shall not exceed one-third of the total number of the members in the assembly of that state and it shall in no case be less than 40.

As regards legislative procedure, the council is on par with the Rajya Sabha in so far as the passing of bills, other than the money bills, requires approval of both Houses. But it does not have comparable powers as far as amendments to and rejection of such Bills is concerned. If the assembly rejects the amendments suggested by the council or the council rejects the Bill altogether or it does not take any action for three months, then the assembly may pass the bill again and transmit it to the council. If the council rejects the bill again or passes it with amendments not acceptable to the assembly or does not pass the bill within one month, then the bill is deemed to have been passed by both the Houses in the form in which it was passed by the assembly for the second time.

A time limit has been prescribed for consideration and passage of Bills only by the legislative council, whereas in Parliament it applies to both the Houses. Thus, there is no provision for a joint sitting (refer Article 108) of the two Houses of the state legislature for settlement of unresolved differences on a bill or if a bill passed by one House is not passed by the other one within the prescribed time limit.

The composition of the legislative council can be varied by Parliament through a law, whereas in the case of the Rajya Sabha, the Constitution itself provides for it. Unlike the Rajya Sabha, again, the members of legislative councils are not part of the electoral college for the elections to the posts of president and vice-president of India.

The constitutional provisions, of course, reflect the division of opinion in the Constituent Assembly itself on the subject of a second chamber in states. Some members of the Consti­tuent Assembly felt that the second chamber in the state was not representative of the people, would delay legislative process and was an expensive proposition.

As far as legislative councils are concerned, their composition appears to be somewhat outdated and flawed. Providing representation to groups like graduates and teachers does not make sense today. Having made the provision for panchayats and municipal bodies in the Constitution, through the 73rd and 74th amendments, it is time that Parliament, in exercise of the powers vested with it in Clause (2) of Article 171, makes a law to align the composition of legislative councils with the third tier of government in order to provide an organic linkage between the two. Other professional interests could be represented through the quota reserved for nomination by the governor.

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Such a restructuring would not only add value to the deliberations of legislative councils, as envisaged by the framers of the Constitution, but also persuade more states to come forward to establish them. It would also, perhaps, make for greater permanence of these bodies.

_The writer was Secretary, Parliamentary Affairs from 2003-2005 and Secretary-General of Rajya Sabha from 2007-2012

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