[Picture credits: The New Indian Express]
The Andhra Pradesh government led by Chief Minister YS Reddy has been in news for proposing to make significant constitutional and structural changes to the state. Recently, the government introduced a Bill to establish a respective legislative, judicial and executive capital in the state. While the Bill has been easily passed in the Legislative Assembly where the ruling state government enjoys majority, it is highly unlikely that it shall meet the same success in the Legislative Council, which is dominated by the opposition.
Arguably to circumvent this roadblock, the Hon’ble Chief Minister recently suggested that his government is considering abolishing the state Legislative Council. The statement has sparked a debate over the competency and legitimacy of the state government to do so. In the present post I aim to discuss both these aspects in light of the above discussed controversy.
Law on Creation/Abolishing of a Legislative Council:
As per the Constitution of India, every state comprises of a Legislature which includes a Governor, a Legislative Assembly and in select few states a Legislative Council. While the Legislative Assembly is an elected body comprising directly elected members, the Legislative Council consists of nominated and indirectly elected members.
The Legislative Council is a legacy of the British and hence, even the Constituent Assembly was divided over the need to retain such a body. One side believed that the body would act as a check on the Legislative Assembly and also ensure representation of all communities, while the other side believed that it was a vestige of the British serving no real purpose. Therefore, to maintain a balance the Constituent Assembly introduced a provision which provided for abolishing and creating the Legislative Assembly if a need was felt.
Article 169 provides for the procedure to create a Legislative Council for a state or abolish an existing one. According to the Article, the Parliament has the power to abolish or create a Legislative Council in a state if the Legislative Assembly of the State passes a resolution to that effect. It should be noted that such a resolution must be passed by a majority of total membership of the Assembly and by a majority of not less than two-third members of the Assembly present and voting.
The phrase ‘present and voting’ here means that the out of the members present inside the House/Assembly during the vote, 2/3 should vote in favour of the resolution [In the Matter of Hind Lever Chemicals Limited and Another, 2004 SCC Online P&h336].
Once the Legislative Assembly passes the resolution, it needs to be passed by the Parliament (both Lok Sabha and Rajya Sabha) by a respective majority of the houses, present and voting. Thereafter, the Bill is sent to the President for her/his signatures and takes effect.
It should be noted that the Parliament has a discretion in deciding whether to pass a law abolishing/creating a Legislative Council or not. In other words, merely because the State Legislative Assembly has passed a Resolution to that effect, the parliament is not bound to pass the said law.
Andhra Pradesh Saga:
In law, the government of Andhra Pradesh only has partial powers to abolish the Legislative Council in the state, as the final decision to approve/deny its Resolution vests in the Parliament. Therefore, the real task for the state government would be lobbying and convincing the central government to pass a legislation as per the requirements of Article 169 of the Constitution.
Even if one terms the government’s move as a political stratagem; such an argument would not hold before a Court of law. Interestingly, in 1986 the Madras High Court in D Jayaraman v. Govt. of Tamil Nadu, heard a similar challenge to the dissolution of the Legislative Council of Tamil Nadu. The Court not only upheld the resolution but also held that a legislation cannot be questioned by imputing motives to the Legislature.
The Court opined,
“One is that it is fundamental that a legislation cannot be questioned by imputing motives to the Legislature. This principle equally applies to the impugned resolution. Secondly, once the impugned resolution satisfies the requirement of Art. 169(1) of the Constitution, the same is not liable to be questioned on any other ground.”
If the government goes ahead with its proposed resolution, it will be the second time Andhra Pradesh would see its Legislative Council abolished. While legally, there is nothing wrong with the government’s move, it is apparent that the hidden agenda is to remove all obstacles which the Legislative Council may put towards the Bills passed by the Legislative Assembly.
[Views are personal]