State Legislature
· Part
– VI, Article (152 – 237) deal with state legislature executive, judiciary.
· This
is the 2nd largest part of const. with 86 articles.
àArticle (168 – 212) deal with state legislature.
· Bicameralism
at state level is optional (having/ not having upper house (UH) is discretion
of state lower house).
àArticle 168 composition of state legislature
· State
legislature shall consist of Governor + L.H. + U.H. L.H = Leg. Assembly, U.H =
Leg. Council.
àArticle 169 procedure of creation / abolition of
state U.H.
· If
the state L.H approves the resolution with special majority and that resolution
is ratified by parliament on this basis prez issues order for creation /
abolition of U.H.
The following states have UH:
1. J
& K
2. UP
3. BH
4. MH
5. KA
6. AP
· However
PB, WB, TN had U.H, but were abolished eventually.
· UH
in TN was abolished in 1996, resolution was sent in 2011 again, but was
abolished in 2011.
· 1st time
U.H in AP was Est. in 1957, came in 1958. It was abolished in 1985. But when
Raj.S.Reddy, a resolution was approved for creation came into force in 2007.
· Composition
of state lower house (Assembly), they will be min. of 60 MLAs, max. of 500
MLAs.
· However
the following states have < 60 MLAs.
Sikhism – 32
Goa - 40
MZ - 40
UP has max. - 403 MLAs
AP has Max. - 294 (= WB)
MH - 288
BH - 243
TN – 234
All NE have equal no. of MLAs except MZ.
· MLAs
are elected like that of LS.
· Tenure:
5 yrs, but can be dissolved by the Governor on the advice of CM.
Note: Even Prez. Can dissolve State Ass. Under Art 356.
The normal tenure can be extended during National emergency up to
1 yr at a time. The parliament extents.
State Upper House: (Council)
· Min.
40, Max. Do not exceed 1/3rd of total members of L.H.
· In
AP there are 90 MLCs.
Composition:
Of the total Indirect:
1. 1/3rd MLC
are elected by MLAs.
2. Another
1/3rd MLCs are elected by local bodies.
Direct:
3. Another
1/12 MLCs are elected by Govt. teachers. (Govt. teachers in AP = 2nd Grade
& above)
4. Another
1/12 MLCs are by graduates of 3 yrs standing.
5. Remaining
1/6th are nominated by governor for the field of Art, Lit.,
social service, science, cooperative sector.
· Leg.
Council is a permanent house, unless it is abolished.
· Members
are elected for the term of 6 yrs; but for every 2 yrs 1/3rd members
retire.
Note: system of proportional representation & tenure of the
members is common between central & RS.
Qualification:
· For
MLAs attained 25 yrs like LS
· For
MLCs attained 30yrs like RS.
· Salary
of MLCs is fixed by legislature itself. In AP, its 90, 000/- for MLAs, MLCs.
· Article
191 deals with disqualification of MLAs, MLCs.
· On
the recommendation of EC of India except on the grand of anti-defection.
Governor: Part – 6 Art (152 –
167)
· Article
(152 – 167) deal with state executive, consisting of Governor, CM, COM and
Advocate general.
· Governor
is the head of state executive. (Office of governor was created with
independent entity in 1858, but gained significance in 1935)
· However
the concept of appointed Governor has been taken from Canada.
· Appointed
governor due to parliamentary system where there is elected CM of state.
· Moreover
in federal system, central Govt. can regulate/control the state through a
const. office which is governor.
Art- 153: There shall be a governor V state.
· However
a common governor may be appointed for 2 /more states.
· This
provision was included in the const. in 1956 by 7th const.
Amendment.
Appointment:
· President
appoints Governor for the term of 5 yrs. Under Art – 155.
· But
Governor holds the office during the pleasure of president.
Removal:
· President
removes the governor with / without a ground.
· Pleasure
means, without a ground / procedure. Prez removes Governor.
· It
does not involve any procedure.
· Governor
has no security of tenure.
· The
incumbent (same) governor continues in the office not withstanding completion
of tenure until the successor comes.
Qualifications: Art – 157 deals with qualifications.
· Completed
35 yrs of age. (Others same as prez).
Conditions: according to Art 153, candidate to be
appointed as governor should not be MP, MLA.
· In
case they are appointed, seat in legislature is deemed to be vacant.
Convections:
· Sarkaria
comm.. (Comm. On centre – state relation) recomm. The following convections to
be observed while appointing governor:
a) Should not be
appointed for home state.
b) The person should be
an expert in any field.
c) He should not be
active in politics before 2 yrs of his appointment.
d) CM has to be consulted
while appointed the governor.
Only A is followed, not others.
Salary: the salary of the governor of the state is determined by the
parliament, charged on consolidated fund of the state not diminished at any
time; except during (Financial emergency) by the parliament.
· Governor
receives a monthly salary of 1, 10, 000/- & eligible for other allowances @
Raj Bhawan.
· Salary
of Governor is mentioned in II schedule.
Note: salaries of MPs are not mentioned in II schedule.
· No
pensions for Governor.
Powers & functions of Governor:
i) Executive powers:
· According
to Art – 154, all executive authority of the state is carried in the name of
Governor.
· Govt.
appoints all important persons in the state like CM, COMs, Advocate general,
chairman & members of SPSC, state EC, FC, vice chancellors of state
university.
ii) Legislature functions:
· Acc.
To Art 168 Govt. is a part of state legislature but not a member.
· He
summons the state legislature.
· Address
the state legislature.
· Prorogue,
dissolves state Assembly.
· Nominates
1 Anglo Indian to Assembly, 1/6th nomination to council.
· Bill
becomes acts after governor’s accent.
· Promulgate
ordnance under 213.
iii) Financial powers: same as prez.
iv) Judicial power: Art 161 same as prez.
· Governor
does not enjoy diplomatic / military powers.
Role of Governor – discretionary powers:
Art - 163:
Clause 1: says there shall be CM with COM, to aid & advice the
governor in exercising his powers, except in so far as he is by or under this
const. is required to exercise his functions, in his discretion. Governor can
act/use his discretionary powers according to const. this type of categorical
mention is not there in Art –
Ex: GJ case of Lokayukta.
Clause 2: if any question a rises whether any matter is / is not a matter
as respect which the governor is by / under this const. required to act in his
discretion, governor decision is final & validity of anything done by Govt.
shall not be called in question on the ground that, he ought/ought not to have
acted in his discretion.
Clause3: Any question whether any and if so what, advice was tendered by
ministers to the governor shall not be enquired into in any court. This is
immune to judicial review same is applicable to prez under Art 74
Governor exercise 2 types of discretionary powers:
1. Constitutional
discretionary
2. Situational
discretionary
1.Situational:
· Appointments
of CM if no party enjoys majority.
· Testing
the majority of Govt.
· Dissolving
assembly
· Recommendation
of prez rule under Art 356.
· Sending
the bill for reconsideration of COMs.
· Reserving
a bill for the consideration of prez. Under 200, 201.
Note: however, if a bill contains provisions; which affects the state
HC power & federal structure the bill should be reserved for consideration
of prez.
2. Impact on centre – state relation:
· The
executive jurisdiction of central Govt. is extended to state list.
· Central
Govt. is empowered to make laws in the state list, under Art – 250
3. Impact on Legislature:
· Normal
tenure of LS is extended up to 1 yr. at a time by the parliament; like no of
extensions.
· However
LS can’t be extended beyond 6 months, after revocation of emergency.
· Same
case also with state assembly.
· Prez
may revoke emergency at any time with subsequent order. This power was also
given to LS.
àSo far 3 times National Emergency has been imposed.
1. 26th Oct
1962 – 10th Jan 1968 due to Chinese Aggression
2. 3rd Dec
1971 – 21st Mar 1977 due to Bangladesh war.
3. 26th June
1975 – 21st Mar 1977
1, 2 à external, 3 à internal.
Constitutional Emergency:
àArt – 355 says, it shall be the duty of the union to protect
every state against external aggression & internal disturbances & to
ensure that Govt. of every state is carried on in accordance with provisions of
const.
àIf a situation has arisen in which there is breakdown of const.
machinery / const. crises, after receiving the report of Govt. / otherwise prez
proclaim Art – 356.
àSuch a proclamation must be approval by parliament within 2
months with simple majority. Once approved, it is extended to 6 months, like
usually 2 extensions (6+6) not beyond that.
However, this can be extended up to max of 3yrs provided following
cond. exists:
a. If
National emergency is already proclaimed in country.
b. If
EC certifies that elections could not be conducted in a free fair manner in
given s<n of state.
àHowever it was there in ‘pb’ for 5yrs with amend. the art – 356.
President of India can revoke art 356 any time.
Consequences:
1. State
Govt. is dismissed; ousted.
2. Assembly
may be dissolved or may be kept under suspended animation & can be revoked.
3. All
executive power is assumed by President, but runs admin. through governor.
Advisors are appointed to the Governor.
4. Parliament
/person appointed by parliament makes laws for the state (also by prez by
ordinances)
5. Parliament
approves the budget by state.
UK, CH à president rule not imposed.
Financial Emergency:
· Art
– 360, prez proclaims financial emergency if there is threat to the credibility
od India with advice of COM.
· Such
a proclamation should be approved by the parliament within 2 months.
· Once
it is approved emergency is extended indefinitely. It is continues until
revoked.
· President
can revoke emergency any time.
Consequences:
· All
the financial powers of state Govt. are restricted that means state Govt.
cannot impose Tax or present budget or money bill without permission of
present.
· Salaries
of all persons serving under union, including judges of SC, HC will be reduced.
· Prez
reduces the salaries & so far no financial emergency has been imposed.
-Case laws regarding Art 356:
SR. Bommai case:
SC made the following guidelines in this case:
- The report
of the governor must be a speaking report, which should reflect the
prevailing scenario, not subject to governor’s assessment.
- If Art 356 is
imposed with malafide interest, it is open to judicial reviews & if
its unconstitutional the dismissed CM will be reinstalled; assembly is
revived.
- Assembly shall
not be dissolved unless & until the prez rule is approved by the
parliament.
- If a state Govt. is unable to protect the secular character of the const. it attracts Art 356, as secularism is a part of basic structure.
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