The case for the second house: State Legislative Councils

Ensuring states have functional bicameral structures makes our representative democracy meaningful and inclusive

As elections to six Legislative Council seats commence in Karnataka, there are debates around the efficacy of the bicameral system. In the current scenario, there are also questions regarding the choice of specialised segments and whether the categories of teachers and graduates are meaningful and still relevant in representation.

The structure of the Indian legislature took shape during the British period, through various Acts of the British Parliament. In the early part of the 20th century, the British government came to realise the need to have greater participation of Indians in the administration, as well as in lawmaking. 

Accordingly, the central legislature was expanded and provincial legislatures were also established. Under the Montague Chelmsford report, the Government of India Act of 1919 provided for a bicameral legislature, or the Centre, as well as the provinces. For the first time in the legislative history of India, the legislature at the Centre and those in the provinces became bicameral, with the Legislative Assembly and the Legislative Council from 1919. 

The same pattern was adopted by free India when the Constitution was made. However, only six states, which includes Andhra Pradesh, Telangana, Karnataka, Maharashtra, Bihar and Uttar Pradesh, have the second chamber, namely, the Legislative Council. The rest of the states are unicameral, having only one legislative house.

This lack of uniformity in the structure of the state legislature is rather odd. It only shows that there is no definite policy with regard to the second chamber in the state legislature. 

In popular parlance, the Legislative Council is called the ‘Upper House’. But the Constitution of India does not use such an expression to describe the Council. In fact, the Legislative Council does not possess the financial powers of the Assembly, which is the House directly elected by the people. 

The only justification for calling the Council the Upper House is that the age of entry in the Council is 30 years, whereas that in the Assembly is 25 years. 

From this point of view, the members of the Council are older than the members of the Assembly. However, the members of the Council do not form part of the Electoral College, which elects the President of India. Only the members of Lok Sabha and Rajya Sabha and the elected members of the Legislative Assemblies are members of this electoral college. In all other respects, both Houses are equal with respect to the powers and role of the state legislature. 

Article 169 of the Constitution provides for the procedure for establishing a Legislative Council in a state. It says that first, the Legislative Assembly has to pass a resolution with the majority of the total membership of the Assembly and two-thirds of the members present and voting. Thereafter, the Parliament has to pass a law creating the Council. 

It may be noted here that Parliament is under no compulsion to create a Council in a state when a resolution is passed by the Assembly. Parliament can just ignore such a resolution if it chooses to do so. Of course, Parliament decides every issue by majority, which means that if the Union government, which has a majority in Parliament does not want to create the Council, it can ignore the resolution of an Assembly. 

In the same way, a Council can be abolished by resorting to the same procedure. Article 169 reveals two things: One, the creation of a Council is not mandatory, but only optional. Secondly, the view of a State Assembly, as reflected in a resolution, is not of much significance. Parliament need not act on it. And thus, a resolution passed by an Assembly, which essentially reflects the will of the people of that state, becomes a matter of no consequence. 

Of course, Parliament cannot pass a law for the creation of a Council suo motu. It can do so only if the Assembly passes the requisite resolution. However, the point remains that Article 169 does not throw any light on why, or under what circumstances, Parliament can ignore the resolution of an Assembly, either for the creation or the abolition of the Council. 

There is nothing in the Constitution which requires the Union government to explain to the State Assembly why it thought that such a Council was not necessary for the state. This is quite an unsatisfactory situation. In a federal system, the view of the state legislature on a matter concerning the composition of the legislature needs to be given due recognition. 

Modes of election 

The mode of election to the Council of States (Rajya Sabha), and to the Legislative Councils of states differs in as much as the voters in the election to the former are elected members of the Assemblies, whereas the voters who elect members to the Legislative Council belong to different sectors such as municipalities, district boards, etc and include graduates and teachers belonging to the state. 

Article 171 of the Constitution lays down the framework of election to the Councils. According to this Article, one-third of the members of the Council are elected by members of municipalities, district boards, etc. Then, one-twelfth are elected by electorates consisting of graduates in that state. Another one-twelfth members of the Council are elected by secondary school teachers who have been engaged in teaching in that state for a minimum of three years. One-third of the members are elected by the members of the Assembly. And the remaining members are nominated by the governor. They possess special knowledge in literature, science, art, cooperative moments and social service. 

Section 27 of the Representational People Act, 1950, deals with the composition of the different electorates mentioned above. Under this section, every member of the specified local authority in the constituency is entitled to vote. The electoral registration officer for the local authority’s constituency is required to maintain the electoral roll in up-to-date form. 

Similarly, every graduate who is ordinarily resident in a graduate constituency and has completed three years as a graduate is entitled to vote. As regards a teacher’s constituency, you must ordinarily be a resident in that constituency, and must possess an experience of three years in teaching in a secondary school in the state. 

The question of whether the Legislative Councils are necessary is relevant in the context of representative democracy, which is practised in India. Parliamentary scholars are generally of the view that a second chamber will act as a check on the electoral house in the context of the overzealous approach of the elected members of the Assembly. The theory is that the Assembly initiates legislative proposals being actuated by extreme kinds of populism without giving mature consideration to the consequences. This may ultimately harm the interests of society. In such cases, the Council may exercise caution, tame the proposal and advise the Assembly to not to cross the line. 

The second point in favour of the Council is that there are a number of social groups in every state who have or cannot have any representation in the Assembly. This is because of the fact that due to their negligible number in the overall population, their members have no chance of getting elected to the Assembly. It is always the dominant social groups which get representation in the Assembly. 

In such situations, meritorious persons from numerically smaller social groups can get some representation in the Councils. They can try either the election route, which may not be as difficult as the general election or the nomination route. This will ensure the representation of the largely neglected social groups in the legislature. In fact, every state must have a second chamber, which will make our representative democracy meaningful by being inclusive. It is the Union government which should take the initiative in creating a second chamber for every state in the country. 

(P D T Achary was the Secretary General of the 14th Lok Sabha)