Latest revision as of 19:42, 30 August 2022

[edit] The need for an upper house

[edit] Are they needed?

January 22, 2020: The Times of India

ONE OR TWO HOUSES?

The Andhra Pradesh assembly, where the ruling party — YSR Congress Party — has a brute majority (151 of 175 seats), passed a bill this week to give shape to the plan of having three capitals for the state. A day later, the legislative council (upper house of state legislature), in which the state’s principal opposition party — Telugu Desam Party (TDP) — has the most seats (28 of 58), blocked it (albeit temporarily). The development comes amid reports that the state government is considering scrapping the legislative council altogether. In contrast, states like Odisha, Madhya Pradesh, Assam and Rajasthan, which don’t have an upper house, are planning to establish one.

WHAT AND WHERE?

Like the Lok Sabha and Rajya Sabha in Parliament, the Constitution gives states an option of having a bicameral legislature too with a second house. However, only six states, including Andhra Pradesh, have exercised that option - Bihar, Karnataka, Maharashtra, Telangana and Uttar Pradesh. The strength of the legislative council varies from state to state but cannot be more than a third of that of the state assembly and not less than 40. Like Rajya Sabha, a state’s upper house is also an indirectly elected house with a third of its members elected by MLAs, a third by members of local bodies like municipalities and the rest by a specified electorate (like teachers) or nominated by the state's governor. Legislative councils are also permanent houses like Rajya Sabha with one-third of their members retiring every two years. However, state assemblies have the power to override the suggestions made by the council.

WHY OR WHY NOT?

Those in favour of having a council say that a second house allows for better debate and sharing of legislative work and acts as a check against hasty decisions by majority governments. Since even non-politicians can be members, the system allows professionals to contribute to the legislative process too, they say. However, those opposed to the idea say that a second house only delays legislation and is filled up with politically — exposed persons who can’t win elections. It’s also a drain on the state exchequer, they point out. While the Odisha government had indicated an annual budget of Rs 35 crore for the proposed second house, Rajasthan had put a one-time figure at Rs 100 crore and Assam at Rs 69 crore with Rs 19 crore as annual expenses.

TO CREATE OR SCRAP?

Parliament has the power to create or abolish the legislative council in a state under Article 169 of the Constitution after the state assembly has passed a resolution to the effect with a special two-thirds majority. Andhra Pradesh had an upper house since 1958 but abolished it in 1985 only to reconstitute it in 2007. Proposals to create legislative councils in Rajasthan and Assam are pending in Parliament.

THE DEBATE IN PARLIAMENT

In the previous NDA government, when the numbers in the Rajya Sabha were not in its favour, the role of the upper house of Parliament had been questioned by members of the BJP too. “It’s a serious question in a parliamentary democracy wherein bill after bill, the wisdom of a directly elected house is questioned by the indirectly elected house,” the then Leader of the Rajya Sabha, Arun Jaitley had remarked in 2015. There have been attempts in the past to abolish Rajya Sabha. In 1954 (March 18) and 1973 (March 30) resolutions to the effect were moved in Lok Sabha. Both were defeated. Three private member bills seeking a constitutional amendment were introduced in 1971, 1972, 1975 and 1981. None of them were passed.

[edit] Court decisions

[edit] Patna HC order to retire MLCs elected from local bodies

The Times of India, Jul 02 2015

Patna HC order to retire MLCs stumps top court

The Supreme Court found itself in a tangle while adjudicating a petition by Bihar Legislative Council (BLC) challenging a Patna high court order fixing the retirement schedule for 24 MLCs to be elected from local bodies. Though each MLC has a tenure of six years, the HC had directed the Election Commission to fix retirement of eight MLCs after two years and another eight after four years while allowing the remaining eight to retire after serving six years. This was devised by the HC to honour the constitutional provision that though each MLC would have a tenure of six years, one-third of them would retire after completion of two years. Appearing for BLC, senior advocate L Nageshwar Rao suggested draw of lots to fix retirement of these three blocs with eight MLCs each.However, both BLC and EC, which was represented by senior advocate Ashok Desai, converged on the argument that the HC had erred by interfering in the election process.

A bench of Chief Justice H L Dattu and Justices Arun Mishra and Amitava Roy said if lots were drawn, the eight MLCs who were to retire after two years would be the first to approach court with petitions. “Who should retire after two years? This matter requires a serious look. Please tell us a solution,“ said the bench which was earlier thinking of either staying operation of the HC order or directing postponement of the July 7 BLC elections.

From 1978 till 2002, no elections to local bodies were conducted in Bihar hence the 24seat bloc in BLC remained vacant and there was no complications about the periodic retirement of MLCs from local body constituencies.