Governor & State Legislature

Analysis: Federalism and Controversies

The Office of the Governor, while intended to be a non-partisan constitutional head, has often been a subject of controversy due to its dual role as the constitutional head of the state and a representative of the Union government. This duality frequently leads to friction, particularly when different political parties govern at the Centre and in the State.

Key areas of contention include:

• Appointment and Removal: The lack of a clear procedure for removal and the 'pleasure of the President' clause (Article 156) makes the Governor vulnerable to political influence. Recommendations from commissions like Sarkaria and Punchhi have suggested that the Governor should not be removed except in rare and compelling circumstances, and the process should be transparent.
• Discretionary Powers: While essential for constitutional checks and balances, the discretionary powers, especially regarding bill reservation (Article 200), recommending President's Rule (Article 356), and inviting a party to form the government, have been criticized for being used to destabilize state governments or favour the ruling party at the Centre.
• Role in Hung Assemblies: In situations where no single party secures a clear majority, the Governor's decision to invite a party to form the government, or to order a floor test, becomes critical and often politicized.

Comparison Table: President vs. Governor

| Feature | President (Article 72) | Governor (Article 161) Most of the Governor's functions are exercised on the aid and advice of the Council of Ministers (Article 163). However, the Governor also possesses certain discretionary powers where they can act without such advice. The Constitution makes it clear that if any question arises whether a matter falls within the governor’s discretion or not, the decision of the governor is final. These include:

• Constitutional Discretion (Explicitly mentioned in the Constitution):

  1. Reservation of a bill for the consideration of the President (Article 200): This is obligatory if the bill endangers the position of the state High Court. It can also be done if the bill is ultra-vires, opposed to DPSPs, against the larger interest of the country, of grave national importance, or deals with compulsory acquisition of property.
  2. Recommendation for the imposition of the President’s Rule in the state (Article 356): If the Governor believes the state government cannot be carried on in accordance with constitutional provisions.
  3. While exercising functions as the administrator of an adjoining Union Territory (if given additional charge).
  4. Determining the amount payable by the Governments of Assam, Meghalaya, Tripura, and Mizoram to an autonomous Tribal District Council as royalty from mineral exploration.
  5. Seeking information from the Chief Minister with regard to the administrative and legislative matters of the state (Article 167).

• Situational Discretion (Implied by political exigencies):

  1. Appointment of Chief Minister: When no party has a clear-cut majority in the state legislative assembly, or when the Chief Minister in office dies suddenly and there is no obvious successor.
  2. Dismissal of the Council of Ministers: When the Council of Ministers loses the confidence of the legislative assembly but refuses to resign.
  3. Dissolution of the State Legislative Assembly: If the Council of Ministers has lost confidence but advises dissolution, the Governor may refuse and seek an alternative government.

Case Study: S.R. Bommai v. Union of India (1994)

This landmark Supreme Court judgment significantly curtailed the arbitrary use of Article 356 (President's Rule) and, by extension, the Governor's role in recommending it. The Court ruled that the power under Article 356 is not absolute and is subject to judicial review. It emphasized that the Governor's report recommending President's Rule must be based on objective material and not on subjective satisfaction. It also held that the majority of the government should be tested on the floor of the House, not in the Governor's subjective assessment. This case strengthened federalism and limited the Governor's discretion in this crucial area.

Mains Hooks

• Federalism: The Governor's office is central to debates on cooperative and competitive federalism. Its role as an agent of the Centre can undermine state autonomy.
• Constitutional Morality: The actions of Governors are often scrutinized for adherence to constitutional morality, especially in politically charged situations.
• Checks and Balances: The Governor's power to reserve bills or recommend President's Rule acts as a check on state legislatures, but its misuse can disrupt the democratic process.
• Reforms: Various commissions (Sarkaria Commission, Punchhi Commission, National Commission to Review the Working of the Constitution) have recommended reforms regarding the appointment, tenure, and discretionary powers of the Governor to ensure greater impartiality and constitutional propriety.

Recent Developments

Recent years have seen continued debates regarding the Governor's role, particularly in states where the ruling party differs from the Centre. Issues like delays in granting assent to bills, prolonged withholding of assent, and controversies surrounding the summoning or proroguing of legislative sessions have frequently made headlines. The Supreme Court has, in several instances (e.g., the Maharashtra political crisis, the Arunachal Pradesh crisis in Nabam Rebia v. Deputy Speaker (2016)), reiterated the constitutional limits on the Governor's powers, emphasizing that the Governor must act on the aid and advice of the Council of Ministers, except in areas of express constitutional discretion. These developments underscore the ongoing need for clarity and adherence to constitutional principles in the functioning of the Governor's office.

Analysis

1. Rationale for Bicameralism vs. Unicameralism:

• Arguments for Bicameralism (Legislative Council): Proponents argue that a second chamber provides a platform for mature deliberation, prevents hasty legislation, and offers representation to special interests (graduates, teachers, experts) not typically represented through direct elections. It acts as a check on the potentially populist tendencies of the directly elected Assembly. The nominated members can bring expertise from various fields, enriching legislative discourse.
• Arguments Against Bicameralism: Critics view Legislative Councils as expensive, redundant, and often used as a means to accommodate political loyalists or defeated politicians. They can cause legislative delays and are often seen as lacking the democratic legitimacy of the directly elected Assembly. Their powers are largely advisory and delaying, leading to questions about their actual utility.

2. Federalism and State Autonomy (Article 169): Article 169 allows for the creation or abolition of Legislative Councils. This process is initiated by a resolution passed by the State Legislative Assembly with a special majority (two-thirds of members present and voting, and absolute majority of total membership). Subsequently, Parliament can pass a law to create or abolish the Council. This mechanism highlights a unique aspect of Indian federalism where the state's legislative structure is not entirely autonomous but requires parliamentary approval. This can lead to political maneuvering, where a state government might propose abolition or creation based on its political convenience rather than genuine legislative need.

3. Compositional Nuances and Representation:

• Legislative Assembly: The principle of 'one person, one vote' and direct election ensures popular representation. However, the freezing of the number of seats based on the 1971 census (extended till 2026 by the 84th Amendment Act, 2001) has led to disparities in representation due to differential population growth across states and constituencies. The discontinuation of Anglo-Indian nomination by the 104th Amendment Act, 2019, reflects a shift away from specific community-based nominated representation.
• Legislative Council: The indirect election and nomination process for the Legislative Council aims to bring in diverse perspectives. However, the effectiveness of special electorates (graduates, teachers) in representing their respective groups is often debated. Political parties frequently dominate these elections, undermining the non-partisan, expert role envisioned for the Council. The Governor's power to nominate 1/6th members, while intended to bring in distinguished personalities, can sometimes be used for political patronage, raising questions about the Council's independence and integrity.

4. Delimitation of Constituencies: Article 170 mandates that the ratio between the population of each constituency and the number of seats allotted to it is the same throughout the state. Delimitation commissions periodically redraw these boundaries. The current freeze on the number of Lok Sabha and Assembly seats until 2026, based on the 1971 census, aims to encourage population control but has led to significant disparities in voter-to-representative ratios in rapidly growing states.

Comparison Table: Legislative Assembly vs. Legislative Council

Case Study

• Andhra Pradesh Legislative Council: The Andhra Pradesh Legislative Council was abolished in 1985 by the N.T. Rama Rao government, citing it as a 'white elephant'. It was subsequently revived in 2007 by the Congress government through the Andhra Pradesh Legislative Council Act, 2005, following a resolution by the state assembly. In January 2020, the Y.S. Jagan Mohan Reddy government again passed a resolution in the Assembly to abolish the Council, arguing it was hindering legislative work. This ongoing saga illustrates the political nature of Article 169 and how the existence of a second chamber can become a point of contention between ruling parties and opposition or even within the same party over time.
• Madhya Pradesh Legislative Council: The 7th Amendment Act of 1956 provided for a Legislative Council in Madhya Pradesh. However, a notification to this effect has to be made by the President, which has never happened. Consequently, Madhya Pradesh continues to have a unicameral legislature. This highlights that even a constitutional provision requires subsequent executive action for implementation.
• Jammu and Kashmir Reorganisation Act, 2019: This Act abolished the Jammu and Kashmir Legislative Council, effective October 31, 2019, when the state was bifurcated into the Union Territories of J&K and Ladakh. This is a significant recent example of the abolition of a Legislative Council by an Act of Parliament, albeit under unique circumstances of state reorganization.

Mains Hooks

• Federalism and State Autonomy: The composition of state legislatures, particularly the creation/abolition of Legislative Councils, directly impacts the balance of power between the Centre and states. The requirement of parliamentary approval for Article 169 resolutions raises questions about the extent of state autonomy in determining its own legislative structure. This can be linked to the broader debate on cooperative vs. confrontational federalism.
• Democratic Representation and Electoral Reforms: The different modes of election for the Assembly and Council present a contrast between direct popular mandate and indirect/specialized representation. Discussing the efficacy of special electorates in the Legislative Council and the impact of the 1971 census freeze on Assembly seat allocation can lead to an analysis of electoral reforms needed to ensure more equitable and effective representation.
• Role of Governor: The Governor's role in nominating members to the Legislative Council and assenting to bills is a critical aspect. This power, if misused for political ends, can undermine the democratic spirit and legislative independence, linking to debates on the Governor's discretionary powers and their constitutional limits.
• Checks and Balances: The existence of a bicameral system is theoretically meant to provide checks and balances. An essay could analyze whether the Legislative Council effectively performs this role or merely acts as a 'dilatory chamber,' especially given its limited powers compared to the Assembly.
• Ethics and Governance: The composition of the Legislative Council, particularly the nominated quota, can be a point of ethical concern if used for political patronage rather than bringing in genuine expertise. This relates to principles of good governance, transparency, and accountability in legislative bodies.

Recent Developments

• 104th Constitutional Amendment Act, 2019: This Act discontinued the reservation of seats for Anglo-Indians in the Lok Sabha and State Legislative Assemblies, effective January 25, 2020. This directly impacts the 'nominated member' provision for the Legislative Assembly.
• Jammu and Kashmir Reorganisation Act, 2019: This Act led to the abolition of the Jammu and Kashmir Legislative Council, reducing the number of bicameral states from seven to six.
• Andhra Pradesh Legislative Council Abolition Resolution (2020): The Andhra Pradesh Assembly passed a resolution to abolish its Legislative Council. This resolution is currently awaiting parliamentary approval, highlighting the political dynamics involved in the creation and abolition of these bodies.

Analysis: Powers and Functions of State Legislature

The State Legislature is a powerful body within its constitutional domain, exercising a range of functions:

1. Legislative Powers

• Enacting Laws: It can make laws on subjects enumerated in the State List (List II) and the Concurrent List (List III) of the Seventh Schedule of the Constitution. In case of a conflict on a Concurrent List subject, a central law generally prevails, unless the state law was reserved for Presidential assent and received it (Article 254).
• Ordinances: While the legislature is not in session, the Governor can promulgate ordinances (Article 213), which have the force of law but must be approved by the legislature within six weeks of its reassembly.

2. Financial Powers

• Budget Approval: It approves the Annual Financial Statement (State Budget), presented by the Governor (Article 202). No tax can be levied or collected, and no expenditure can be incurred without the authority of law passed by the legislature.
• Money Bills: As discussed, it controls money bills, grants, and appropriations from the Consolidated Fund of the State.
• Financial Scrutiny: Through committees like the Public Accounts Committee and Estimates Committee, it scrutinizes government expenditure and financial policies.

3. Executive Powers

• Accountability: The Council of Ministers is collectively responsible to the Legislative Assembly (Article 164). The Assembly can enforce this responsibility through various means: asking questions, moving adjournment motions, calling attention motions, and ultimately, by passing a no-confidence motion.
• Control over Government: It oversees the working of the executive through debates, discussions, and resolutions.

4. Constituent Powers

• Constitutional Amendments: While not directly amending the Constitution, state legislatures play a role in the amendment process for certain provisions (e.g., election of the President, distribution of legislative powers) by ratifying amendments passed by Parliament by a simple majority (Article 368).

5. Electoral Powers

• Presidential Election: Elected members of the Legislative Assembly (MLAs) participate in the election of the President of India.
• Rajya Sabha Members: Members of the Legislative Assembly elect representatives to the Rajya Sabha (Council of States).
• Legislative Council Members: Members of the Assembly also elect a portion of the members of the Legislative Council.

6. Judicial Powers

• Removal of High Court Judges: The state legislature does not directly remove High Court judges, but an address by Parliament for their removal must be supported by a resolution passed by the state legislature concerned.

Comparison Table: Legislative Assembly vs. Legislative Council

Powers, Privileges, and Immunities of State Legislatures (Article 194)

Article 194 of the Constitution deals with the powers, privileges, and immunities of a House of the Legislature of a State, and of the members and the committees thereof. These are essential for the independence and effective functioning of the legislature.

Collective Privileges (enjoyed by each House)

1. Right to publish debates: It has the right to publish its reports, debates, and proceedings and also the right to prohibit others from publishing the same.
2. Exclude strangers: It can exclude strangers from its proceedings and hold secret sittings for important matters.
3. Punish for contempt: It can punish members as well as outsiders for breach of its privileges or for its contempt.
4. Regulate its internal affairs: It has the right to regulate its own procedure and conduct of business.
5. Inquiry and summon witnesses: It can institute inquiries and order the attendance of witnesses and send for relevant papers and records.
6. No court jurisdiction: No court can inquire into the validity of any proceedings in the legislature on the ground of any alleged irregularity of procedure.

Individual Privileges (enjoyed by members)

1. Freedom of speech: Members have freedom of speech in the legislature and its committees (Article 194(1)). No member is liable to any proceedings in any court in respect of anything said or any vote given by him in the legislature or any committee thereof.
2. Exemption from arrest: Members are exempt from arrest in civil cases during the session of the legislature and for a period of forty days before and forty days after the session. This privilege does not extend to criminal cases or preventive detention.
3. Exemption from jury service: Members are exempted from attendance as witnesses or jurors in a court while the legislature is in session.

Who enjoys these privileges?

These privileges extend to the members of the state legislature, the Advocate-General of the state, and state ministers, as they are entitled to speak and take part in the proceedings of a House or its committees. However, the Governor, though an integral part of the state legislature, does not enjoy these privileges.

Mains Hooks

• Relevance of Legislative Councils: Debates often arise regarding the utility and cost-effectiveness of Legislative Councils. Arguments for include providing a platform for experts and sober second thought, while arguments against highlight their delaying tactics and potential for political patronage. Analyze the constitutional provisions for their creation and abolition (Article 169).
• Role of the Speaker/Chairman: Discuss the impartiality and powers of the presiding officers, especially in matters of disqualification under the anti-defection law.
• Legislative Effectiveness: Examine factors affecting the quality of legislation, such as lack of adequate debate, ordinance raj, and the role of committees.

Recent Developments

There have been ongoing discussions and resolutions by various states regarding the creation or abolition of Legislative Councils. For instance, Rajasthan and Assam have passed resolutions for the creation of Legislative Councils, which are pending with the Parliament. Conversely, Andhra Pradesh recently passed a resolution for the abolition of its Legislative Council, which is also awaiting parliamentary approval. These instances highlight the dynamic nature of state legislative structures and the political considerations influencing them.