A PROJECT REPORT ON

“STATE LEGISLATURE”

SUBMITTED TO:
Dr. SHRUTI BEDI

SUBMITTED BY:
TANISH JINDAL
B.Com LLB (H)
Roll No: 216/16

UNIVERSITY INSTITUTE OF LEGAL STUDIES

2017-2018
 Acknowledgement
A research work of such great scope and precision could never have been possible without great
co-operation from all sides. Contributions of various people have resulted in this effort. Firstly, I
would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Dr. Shruti Bedi (Assistant Professor in Law)
without whose valuable support and guidance, this project would have been impossible. I would
like to thank the library staff for having put up with my persistent queries and having helped me
out with the voluminous materials needed for this work. I would also like to thank my seniors for
having guided me and culminate this acknowledgement by thanking my friends for having kept
the flame of competition burning, which spurred me on through these days.

And finally my parents, who have been a support to me throughout my life and have helped me,
guided me to perform my best in all interests of my life, my grandparents who have always
inculcated the best of their qualities in me.
 TABLE OF CONTENTS

1.

2.
Table of Cases
Abdul Shakur v. Rikhab chand........................................................................................................8
Ansumali v. State of west Bengal..................................................................................................28
Biharilala v. Roshan.........................................................................................................................8
Bradlaugh v. Gossel.......................................................................................................................32
Election commission v. Saka Venkata.............................................................................................8
Gopala v. paul..................................................................................................................................8
Gunupati Keshavram Reddi v. Nafisul Hasan...............................................................................29
Hardwari lal v. E.C........................................................................................................................32
Jatish Chandra Ghose v. Hari Sadhan Mukherje...........................................................................27
K.Anandan v. Chief Secretary, Government of Madras................................................................29
Keshava Singh’s Case or U.P. Assembly Case.............................................................................29
M.S.M. Sharma v. S.K.Sinha.........................................................................................................28
P.V. Narsimha Rao v. State...........................................................................................................27
Purushothaman Namnudri v. State of Kerala................................................................................16
Ravanna v. kaggeerappa..................................................................................................................7
Satish v. Harisadhan......................................................................................................................28
Sita Ram v. Ramjila Bai..................................................................................................................7
State of Punjab v. S.P. Dang..........................................................................................................18
Strickland v. Grima........................................................................................................................14
Yeshwant Rao Meghawala v. M.P. Legislative Assembly............................................................32
 Introduction
The Parliamentary system by which a government works or gets administered is called
Legislature.

A Legislature is a deliberative Assembly having the authority to make, amend or repel laws for
any country state or any political entity is called Legislature. Legislature consists of a Governor
and either one or two houses.

Legislatures form important parts of most governments; in the separation of powers model, they

are often contrasted with the executive and judicial branches of government.

Laws enacted by Legislatures are known as legislation. Legislatures observe and steer governing
actions and usually have exclusive authority to amend the budget or budgets involved in the
process.

The members of a Legislature are called legislators. In a democracy, legislators are most

commonly popularly elected, although indirect election and appointment by the executive are
also used, particularly for bicameral Legislatures featuring an upper chamber.
 Constitution of Legislatures in States
The Constitution provides for a Legislature for every State. However, the question as to whether
the State Legislature shall be unicameral (having one house only) or bicameral (having two
houses), is left for each State to decide for itself.

Article 168 makes provisions in respect of the Constitution of Legislatures in States. It provides
that for every State, there shall be Legislature which shall consist of the Governor and in the
State of Bihar, Maharashtra, Karnataka and Uttar Pradesh, two Houses (i.e. Legislative
Assembly and Legislative council) and in other States, one house (i.e. Legislative Assembly).
Article(2) makes it clear that where there are two houses of the State Legislature, one shall be
known as the Legislative council and the other as the Legislative Assembly and where there is
only one house, it shall be known as the Legislative Assembly.

The Governor, thus, cannot be a member of either house of Parliament or of the State Legislature
1
but he is a part of the State Legislature.2 The Governor of a State is not a member of the
Legislature of that State and, therefore, he cannot sit in the house or cannot participate in the
deliberations of the house or cannot vote upon the issue under such deliberations, however, he is
a part of the State Legislature and his assent to a Bill is necessary in order to be an act, unless it
is reserved by him for the assent of the president.

Creation and Abolition of the Legislative council

(Article 169)
Article 169(1) contains provisions for the creation of the Legislative council if the State
Legislature does not have a council and also for the abolition of the council if it exits. The
procedure is the same for both, the creation as well as abolition of the Legislative council.

Parliament may, by law, provide for the abolition of the Legislative council of a State having
such a Council or for the creation of such a Council in a State having no such Council, if the

1
Article 158(1)
2
Article 168(!)
Legislative Assembly of the State passes a resolution to that effect by a majority of the total
membership of the Assembly and by a majority of not less than two thirds of the members of the
Assembly present and voting.3 No such law shall be deemed to be an amendment of the
Constitution for the purposes of article 368.

Composition of the Houses of State Legislatures.

Legislative Assemblies:- The Legislative Assembly, commonly known as Vidhan

sabha, or the popular house, or the lower house of the State Legislature, shall be composed of
members chosen by direct elections. Article 326 provides that election to the house of people and
to the Legislative Assemblies of States to be on the basis of adult suffrage and that is to say,
every person who is a resident of India and who is not less than 21 years of age and is not
otherwise disqualified under this Constitution or any law on the ground of non residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a
voter.
Members of the Legislative assemblies are chosen by direct election by territorial constituencies
in the State. Representation in the Legislative Assembly is on the basis of population and shall,
save in the case of the autonomous districts of Assam and the constituencies comprising the
cantonment and the municipality of shilling be on the scale of not more than one member for
every 75000 of the population.

The total membership of the Legislative Assembly of a State is not to exceed five hundred and
is to be less than sixty.4 The population is to be ascertained on the basis of the last proceeding
census.

After the completion of each census, the total number of seats in the Legislative Assembly of
each State and the division of the State into territorial constituencies is to re-adjusted by such
authority and in such manner as Parliament may by law determine.

3
Aricle 169
4
Article170; In the case of Nagaland the Thirteenth Amendement of the Constituion provided that for a specified
period the minimum number will be 46 instead of 60.
Seats shall be reserved for the Scheduled Castes and Scheduled Tribes in the Legislative
Assembly of every State. This reservation shall be in proportion of their population in the State.5

If the Governor of the State is of the opinion that the Anglo-Indian Community is not
adequately represented in the Assembly he may nominate such number of members of that
community of the Assembly as he considers appropriate.6

The reservation of seats for the Scheduled Castes and the Scheduled Tribes and the provision
regarding nomination of the members of the Anglo-Indian Community shall cease to have effect
on the expiration of a period of twenty years from the commencement of the Constitution .7

Legislative councils8:- The total numbers of member in the Legislative council of a

State having such a council shall not exceed one-third of the total number of members in the
Legislative Assembly of that State, subject to a minimum of forty, until Parliament by law
otherwise provides, the composition of the Legislative council of a State shall be as follows:
(a) as nearly as may be, one third shall be elected by electorates consisting of members
of municipalities, district boards and such other local authorities in the State as
Parliament may by law specify;
(b) one twelfth shall be elected by University graduates of at least three years standing
and persons is possession of an equivalent qualification;
(c) one twelfth shall be elected by electorates consisting of teachers, of at least three
years standing, of educational institutions, not lower in standard than that of a
secondary school;
(d) one third shall be elected by the members of the Legislative Assembly of the State
from amongst persons who are not members of the Assembly; and
(e) the remainder shall be nominated by the Governor.

5
Article 332(1) and (4)
6
Article 333
7
Article 334
8
Article 171
These nominated members are to consist of persons having special knowledge or pratical
experience in Literature, science, art, co operative movement and social service.

The nomination of a member by the Governor cannot be challenged under Article 226 because
the person challenged has no personal right which is infringed, nor can he have any personal or
direct interest in the matter. Further, the nominations by the Governor under Article 163 are
presumably made on the advice of council of ministers and under Article 163(3) such an advice
cannot be enquired into by the Court and hence by virtue of Article 361 the Governor’s act is
completely protected.

Duration of the houses

The duration of the Legislative Assembly is five years. The Governor has the power to dissolve
the Assembly even before the expiry of its term. The period of five years, may, while a
proclamation of emergency is in operation, be extended by the Parliament by law for a period not
exceeding one year at a time and not extending in any case beyond a period of six months after
proclamation has ceased to operate.9
Unlike the Legislative Assembly, the Legislative Council is not subject to dissolution. It is a
permanent body, unless abolished by the Legislative Assembly and Parliament by due procedure.
But no person can be a permanent member of the Council as one-third of the members of the
Council retire on the expiry of every second year. It amounts to a term of six years for each
member. There is no bar on a member getting re-elected on the expiry of his term.10

Qualifications for membership11

The following are the qualifications for membership of a State Legislature;

(a) Must be a citizen of India.

(b) Must not be below the age of twenty –five years in the case of Legislative Assembly and
thirty years in the case of Legislative Council.
(c) Must possess such other qualifications as Parliament may, by law, prescribe.
9
Article 172(1)
10
Article 172(2)
11
Article173
 The Parliament has, by section 5-6 of the Representation of the People Act, 1951,
prescribed the qualification for membership of a Legislative Assembly. It has provided that a
person shall not be elected either to the Legislative Assembly or the Council, unless he is
himself an elector for any Legislative Assembly constituency in that State.

Disqualifications for membership

It provides that a person shall be disqualified for being chosen as and for being a member of the
Legislative Assembly or Legislative Council of a State-

(a) Must not be a member of both houses of a State Legislature, or a member of Legislatures
of more than one State. In the later case his seats in the Legislature of all the States will
fall vacant at the end of specified period unless he resigns his seat in all the Legislatures
except one.12
(b) Must not hold an office of profit under the government of India or the government of any
State in India.

In Ravanna v. kaggeerappa13, it was held that the expression “office of profit” has not been
defined in the Constitution of India and its definition is not found even in the general clauses
Act. Usually it is taking to mean an office capable of yielding a profit or pecuniary gain.

It is not required to be in the form of money. Lands allotted to the officer or remuneration for
services rendered is also profit14. For this purpose the office is required to be under the
government of India or under the Government of a State.

In Sita Ram v. Ramjila Bai15 a government servant is disqualified to become a Member of

Parliament, however, if he resigns the office and the resignation is effective before scrutiny of
nomination is no longer an officer under the Government and can become a Member of
Parliament.

12
Article 190(1)
13
A.I.R 195, S.C. 653.
14
Basu,D.D., shorter Constitution of India, p. 450.
15
A.I.R.1987 S.C. 1293.
In Abdul Shakur v. Rikhab chand16, it was held that the power of appointment and dismissal
by the Government is an important consideration in determining the issue as to whether or not a
person is the holder of an office of profit under the government.

A teacher of an aided educational institution who is not appointed and cannot be dismissed by
the government is not regarded as a person holding office of profit under the government,17but a
teacher of a school under a statutory board controlled by the government is regarded as a person
holding office of profit under the government18.

(c) Must not be of unsound mind.

(d) Must not be an undischarged insolvent.
(e) Must not be disqualified by or under any law made by Parliament.

A person will lose his seat if he voluntarily acquires citizenship of a foreign State or if he
becomes subject to any disqualifications subsequent to his elections to a State Legislature.

If a member absents himself from all meetings for a period of 60 days (excluding the period for
which the house is prorogued or adjourned for more than four consecutive days) a house of
State’s Legislature may declare his seat vacant19.

A member may resign his seat20.

Article 192 lays down that if any question arises as to whether a member of a House of the
Legislature of a State has become subject to any of the disqualifications mentioned above, the
question shall be referred to the Governor of that State for decision who will act according to the
opinion of Election Commission. His decision shall be final and not liable to be questioned in
any Court of law.

In Election commission v. Saka Venkata21 it was held that if a person was subject to
disqualifications before his election, the Governor does not have any jurisdiction under Article

16
A.I.R.1958 S.C. 52.
17
Gopala v. paul, A.I.R.1961 Ker. 242.
18
Biharilala v. Roshan, A.I.R. 1984 S.C. 385.
19
Article 190(4)
20
Aricle 190(3)(b)
21
A.I.R.1953 S.C.215.
192 to investigate such disqualification. In such cases the matter can be agitated by an election
petition.

Sessions of the State Legislature

The Constitution requires that the Governor shall from time to time summon the House or each
House of the Legislature of the State to meet at such time and place as he thinks fit. But where
there is a prorogation of the House, the new session must be called within six months. The
Governor may from time to time prorogue the house or either House or dissolve the Legislative
Assembly. It is not necessary to simultaneously summon and prorogue the two houses. The
functions of the Governor with regard to prorogation and dissolution are non-justiciable and the
Governor’s act cannot be challenged even on the ground of mala fides.

The prorogation of the Assembly does not mean its dissolution. The house remains the same;
only the sessions are interrupted by the prorogation of the House according to exigencies of
public demands on the time and attention of members and the volume of business of the
Assembly itself.

Article 175 deals with the right of Governor to address and send messages to the house or
houses.

(1) The Governor may address the Legislative Assembly or, in the case of a State having a
Legislative Council, either House of the Legislature of the State, or both Houses assembled
together, or may for that purpose require the attendance of members.

(2) The Governor may sent messages to the House or Houses of the Legislature of the State,
whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which
any message is so sent shall with all convenient dispatch consider any matter required by the
message to be taken into consideration.

This Article corresponds to Article 86 and the position of the Governor in this respect is the same
as that of the President in relation to Parliament.
Article 176 deals with opening speech of the Governor at the commencement of the first session
after each general election to the Legislative Assembly and at the commencement of the first
session of each year.

This provision is similar to that in Article 87 relating to the special address by the president.

Officers of the State Legislature.

The Assembly chooses two of its members as the Speaker and the Deputy Speaker. The
Legislative Assembly is presided over by the Speaker who is elected by the members of the
Assembly from their own number at the beginning of each new State Legislature.  A Speaker
vacates his office if he ceases to be a member of the House. He ay at any time resign, or may be
removed on a resolution passed by a majority of all the then members of the Assembly. Fourteen
days’ notice for moving such a resolution is required to be given. The Speaker does not vacate
his office on the dissolution of the Legislative Assembly; he continues in office until a new
Speaker is elected when the new houses meets. The Constitution also provides for the office of
the Deputy Speaker and he performs the duties of the speaker when the latter is absent, or while
the office of speaker is vacant. If the office of the deputy speaker, too, happens to be vacant, the
duties of the office of the Speaker shall be performed by such member of the Assembly as the
President may appoint for the purpose. When the speaker and the Deputy Speaker are absent
from any sitting of the house, such person as may be determined by the rules of procedure of the
house acts as Speaker. If none of such persons is available, the house may choose one of its
members to act as Speaker. Neither the Speaker nor the Deputy Speaker is to preside over the
house while resolution of his own removal is under consideration, although he is entitled to be
present, speak, and defend himself.

The Speaker and Deputy Speaker are expected to be above party politics to maintain dignity,
independence and impartiality of the office they hold. The Speaker is the Custodian of the
dignity of the House and an impartial arbiter in its proceedings. He is responsible for the
orderly transaction of business in the House. Any indiscipline and disorder in the House has to
be checked by the Speaker. It is his duty to see that points of view of the minority are given due
recognition and respect in the House. He presides over the meetings of the house. Without him or
his deputy in the chair, the house cannot be constituted. It is his function to maintain order during
debate and to enforce the rules which governs its conduct. Thus, his principal function is to
regulate the business of the house and ensure the undisturbed conduct of its proceedings.

The Council chooses from amongst its members a Chairman and a Deputy Chairman. Both
vacate their offices if they cease to be members of the Council or resign from its membership.
They can also be removed by a resolution of the Council passed by a majority of all the then
members of the Council, provided fourteen days notice to move such resolution of removal has
been given. When the resolution for removal is under discussion against the Chairman or the
deputy Chairman, the concerned person shall not preside at the sitting of the Council, although
he may be present at such a sitting and has the right to speak in, and otherwise to take part in the
proceedings of the Council. He shall be entitled to vote only in the first instance on such
resolution or on any other matter during such proceedings. In case of equality of votes he does
not exercise a casting vote to which he is otherwise entitled under Article 189.
The Chairman presides at all sittings of the Council and in his absence the Deputy Chairman.
During the absence of both the Chairman and the Deputy Chairman, such other person as may be
determined by the rules of procedure of the Council shall preside; or, if no such person is
present, such other person as may be determined by the Council shall act as Chairman. While the
office of the Chairman is vacant, the duties of his office are performed by the Deputy Chairman.
If the office of the Deputy Chairman is also vacant, such member of the Council as the Governor
may appoint shall perform all such duties connected with the office of the Chairman.

Secretariat of the State Legislature

Article187. Secretariat of State Legislature

(1) The House or each House of the Legislature of a State shall have a separate secretarial staff:
Provided that nothing in this clause shall, in the case of the Legislature of a State having a
Legislative Council, be construed as preventing the creation of posts common to both Houses of
such Legislature.
(2) The Legislature of a State may by law regulate the recruitment, and the conditions of service
of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the
State.

(3) Until provision is made by the Legislature of the State under clause ( 2 ), the Governor may,
after consultation with the Speaker of the Legislative Assembly or the Chairman of the
Legislative Council, as the case may be, make rules regulating the recruitment, and the
conditions of service of persons appointed, to the secretarial staff of the Assembly or the
Council, and any rules so made shall have effect subject to the provisions of any law made under
the said clause.

A similar provision has been made under Article 98 for the separate secretarial staff of
each house of Parliament. The reason for making a special provision in the Constitution for
setting up a separate secretariat of the State Legislature was explained thus by the chairman of
the Drafting Committee, Dr. Ambedkar:

It was, as everyone most probably in this house knows, a matter of contention between
the executive Government and the President ever since the late Mr. vithalbhai Patel was called
upon to occupy the President’s chair in the Assembly. A dispute was going on between the
executive Government and the President of the Assembly. The President had contended that the
secretariat of the Assembly should be independent of the executive Government. The executive
Government of the day, on the other hand, contended that the executive had the right to
nominate, irrespective of the wishes and the control of the president, the personnel and the staff
required to serve the purposes of the Legislative Assembly. Ultimately, the executive
Government in 1928 or 1929 gave in and accepted the contention of the president and created an
independent secretariat for the Assembly. So far, therefore, as the central Assembly is concerned,
there is really no change effected by this new article…….

But it was pointed out that this procedure, which was adopted in the central Legislature as
far back as 1928 or 1929, has not been followed by the various provincial Legislatures. In some
provinces, the practice still continues of some officer who is subject to the disciplinary
jurisdiction of the Legislative department being appointed to act as a secretary of the Legislative
Assembly, with the result that officer is under a sort of dual control, control exercised by the
department of which he is an officer and control by the president under whom for the time being
he is serving. It is contended that this is derogatory to the dignity of the speaker and the
independence of the Legislative Assembly.

The conference of speakers passed various resolutions insisting that besides making this
provision in the Constitution, several other provisions should also be made in the Constitution so
as to regulate strength, appointment, conditions of service, and so on. The drafting committee
was not prepared to accept the other contentions raised by the Speakers’ conference. They
thought that it would be quite enough if the Constitution contained a simple clause stating that
Parliament should have a separate secretarial staff/ and the rest of the matter is left to be
regulated by Parliament. Clause (3) provides that until any provision is made by the Parliament
the President may, in consultation with speaker of the house of the people or the chairman of the
council of States, make rules for recruitment and conditions of service. When Parliament enacts a
law, that law will override the rules made pro tempore by the president in consultation with the
speaker of the house of the people. I think that the provisions that we have made is sufficient to
meet the main difficulty which was pointed out by the speakers’ conference.

Conduct of Business
*Article 188. Oath or affirmation by members:- Every member of the Legislative Assembly or
the Legislative Council of a State shall, before taking his seat, make and subscribe before the
Governor, or some person appointed in that behalf by him, an oath or affirmation according to
the form set out for the purpose in the Third Schedule.

*Article 189. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum:-

(1) Save as otherwise provided in this Constitution, all questions at any sitting of a House of the
Legislature of a State shall be determined by a majority of votes of the members present and
voting, other than the Speaker or Chairman, or person acting as such The Speaker or Chairman,
or person acting as such, shall not vote in the first instance, but shall have and exercise a casting
vote in the case of an equality of votes

(2) A House of the Legislature of a State shall have power to act notwithstanding any vacancy in
the membership thereof, and any proceedings in the Legislature of a State shall be valid
notwithstanding that it is discovered subsequently that some person who was not entitled so to do
sat or voted or otherwise took part in the proceedings

(3) Until the Legislature of the State by law otherwise provides, the quorum to constitute a
meeting of a House of the Legislature of a State shall be ten members or one tenth of the total
number of members of the House, whichever is greater

(4) If at any time during a meeting of the Legislative Assembly or the Legislative council of a
State there is no quorum, it shall be the duty of the Speaker or Chairman, or person acting as
such, either to adjourn the House or to suspend the meeting until there is a quorum
Disqualifications of Members.

Except where a special majority is prescribed by the Constitution, all questions in a House of the
State Legislature shall be determined by a majority of votes of the members present and voting22.
The Speaker or the chairman, or the person acting as such, has no vote in the first instance,
though he has a casting vote in the case of an equality of votes.

In Strickland v. Grima23, doubt was expressed as to whether an act is invalid because it

was passed by persons not duly elected. Clause (2) validates the proceeding even though
some unqualified members may have sat or voted. But such unauthorized sitting and
voting render the person liable to a penalty of Rs. 500 per day.

Legislative Procedure
Article 196:- Provisions as to introduction and passing of Bills

(1) Subject to the provisions of Article 198 and 207 with respect o Money Bills and other
financial Bills, a Bill may originate in either House of the Legislature of a State which has a
Legislative Council

22
See article 179&183.
23
(1930) AC 285.
(2) Subject to the provisions of Article 197 and 198, a Bill shall not be deemed to have been
passed by the Houses of the Legislature of a State having a Legislative Council unless it has been
agreed to by both Houses, either without amendment or with such amendments only as are
agreed to by both Houses

(3) A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the
House or Houses thereof

(4) A Bill pending in the Legislative Council of a State which has not been passed by the
Legislative Assembly shall not lapse on a dissolution of the Assembly

(5) A Bill which is pending in the Legislative Assembly of a State, or which having been passed
by the Legislative Assembly is pending in the Legislative Council, shall lapse on a dissolution of
the Assembly.

Legislation which includes the imposing of taxes and appropriation of moneys is one of the main
functions of State Legislature. The Legislative proposal is initiated in the house in the form of
Bill. The detailed procedure relating to a passage of a Bill in a house is laid down in the rules of
procedure which each house has made. The Constitution, in this chapter, lays down certain basic
rules of procedure.

Clause (1) provides the rule as to the initiation of legislation in State Legislature. It enacts that all
Bills, except financial or money Bills, may be introduced in either house of Legislature of a
State. Financial or money Bills pertain to fiscal matters such as Bills authorizing expenditure of
money out of the consolidated fund of India or levying taxes, and can only be introduced in the
Legislative Assembly.

Clause (2) provides that every Bill needs the agreement of both houses. If there is a disagreement
between the houses over any provision or provisions as proposed in the Bill, or over
amendments, the Bill cannot be deemed to have passed by both houses. There is one exception to
the rule when a Bill will be deemed to have been passed by both houses notwithstanding
disagreement between them over the Bill. The first exception relates to money Bill as defined in
Article 198. These are governed by a special procedure which dispenses with the necessity of
agreement of the Legislative Council to the provisions contained therein. As at the centre, a Bill
must be passed by both the houses, except in the case of a deadlock, when it will be deemed to
have been passed, even if the upper house does not agree to it, provided the conditions in Article
197 have been fulfilled.

Clauses (3), (4) and (5) of the article describe the extent to which the pending Legislative
business lapses by prorogation of the houses or dissolution of the Legislative Assembly.
Prorogation, as we have noted, bring to an end not the existence, but a session of State
Legislature. Prorogation has no effect on Bills pending in State Legislature. They do not lapse
and may be continued in the next session. The Indian rule, it was be observed, makes a distinct
departure from the English convention. In England, prorogation ends the session of both houses
simultaneously and terminates all pending business. These Bills must, therefore, at the earliest
stage when State Legislature is summoned again.

Dissolution of the house takes place at the end of every 5 years and may take place earlier also if
the Prime Minister so desires. The extent to which the Legislative business lapses is Stated in
clause (5). Bills which are pending in the Legislative Assembly lapse. They are not kept alive for
the new House. Further, a Bill which has been passed by the Legislative Assembly, but is
pending in the Legislative council, lapses on the dissolution of the Legislative Assembly.

It has been held that Article 196(5) is exhaustive and accordingly only such Bills s are pending
before the Legislative Assembly are affected. Thus, a Bill which as passed all the stages in the
two houses and is awaiting the assent of the Governor does on lapse on the dissolution of the
Legislative Assembly.

In Purushothaman Namnudri v. State of Kerala24 the Supreme Court held the law valid,
although the Governor had given his assent to the Bill after the dissolution of the Legislative
Assembly.

Clause(4), which is more in the nature of an explanatory provision, makes it clear that where a
Bill is pending in the Legislative Council and the same has not been passed by the house of the
State Legislature, it shall not lapse on the dissolution of the Legislative Assembly.

24
AIR 1962 SC 694
 Money Bill
Article199:- Definition of Money Bills

(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely:

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the State, or the
amendment of the law with respect to any financial obligations undertaken or to be undertaken
by the State;

(c) the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of
moneys into or the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of the State;

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of the
State, or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of the State or the public account
of the State or the custody or issue of such money; or

(g) any matter incidental to any of the matters specified in sub clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the
imposition of fines or other pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it provides for the imposition, abolition,
remission, alteration or regulation of any tax by any local authority or body for local purposes.

(3) If any question arises whether a Bill introduced in the Legislature of a State which has a
Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative
Assembly of such State thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council
under Article 198, and when it is presented to the Governor for assent under Article 200, the
certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.

This article defines a money Bill. A money Bill is a Bill which contains only
provisions dealing with one or more of the matters specified in seven sub-clauses of article 199
(1). These includes Bills dealing with the imposition, abolition, remission, alteration or
regulation of taxes; appropriation of moneys out the consolidated fund; the borrowing of money
and making certain expenditure charged on the consolidated fund of India; the giving of
guarantees; the custody of the consolidated fund, etc., the receipt, custody, issue or audit of
public accounts and also matters incidental to the matters mentioned above. The word “only”
above is very significant, because any extraneous matters other than those mentioned above and
which may not be incidental to the matters will take the Bill out of the category of money Bills.
What is an incidental matter is an issue of some controversy. But the enacting formula, the
commencement clause, the repeal clause and clauses dealing with conclusion and determination,
etc., and providing penalties, etc., may be treated as matters incidental thereto.

Further, it is expressly provided that a Bill is not a Money Bill if it deals only with—

(a) The imposition of fines or other pecuniary penalties ; or

(b) The payment of fees for licenses or fees for services rendered : or
(c) Imposition, abolition, remission, alteration or regulation of any tax by any local authority
or body for local purposes.

If any question arises whether a Bill is a money Bill or not, the decision of the Speaker of the
Legislative Assembly thereon shall be final. Clause (4) requires that there shall be endorsed on
every money Bill, when it is transmitted to the Legislative council under Article 198 or when it is
presented to the Governor for assent under Article 200, the certificate of the speaker of the
Legislative Assembly signed by him that it is a money Bill.

The provision of Article 199(4) cannot be viewed as mandatory but only as directory.
In State of Punjab v. S.P. Dang25 if the Constitution saw the necessity of providing a Deputy
Speaker to act as a Speaker during the latter’s absence or to perform the office of the speaker
when the office of the Speaker is vacant, it stands to reason that the Constitution could have
never reposed a power of mere certification in the Speaker and the Speaker alone.

Special procedure in respect of Money Bills.

Article 198:- Special procedure in respect of Money Bills

(1) A Money Bill shall not be introduced in a Legislative Council.

(2) ) After a Money Bill has been passed by the Legislative Assembly of a State having a
Legislative Council, it shall be transmitted to the Legislative Council for its recommendations,
and the Legislative Council shall within a period of fourteen days from the date of its receipt of
the Bill return the Bill to the Legislative Assembly with its recommendations, and the Legislative
Assembly may thereupon either accept or reject all or any of the recommendations of the
Legislative Council.

(3) If the Legislative Assembly accepts any of the recommendations of the Legislative Council,
the Money Bill shall be deemed to have been passed by both Houses with the amendments
recommended by the Legislative Council and accepted by the Legislative Assembly.

(4) If the Legislative Assembly does not accept any of the recommendations of the Legislative
Council, the Money Bill shall be deemed to have been passed by both Houses in the form in
which it was passed by the Legislative Assembly without any of the amendments recommended
by the Legislative Council.

(5) If a Money Bill passed by the Legislative Assembly and transmitted to the Legislative
Council for its recommendations is not returned to the Legislative Assembly within the said
period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration
of the said period in the form in which it was passed by the Legislative Assembly.

This article lays down the special procedure in respect of money Bills. A money Bill
is defined under Article 199 and we have already noted that a money Bill can only be introduced
25
AIR 1969 SC 903
in the Legislative Assembly. After it has been passed by the Legislative Assembly, it has to be
transmitted to the Legislative Council for its recommendations and the Legislative Council must
return the Bill to the Legislative Assembly within a period of fourteen days from the date of
receipt of the Bill with its recommendations. If it is not returned within that period, it should be
deemed to have been passed by both the houses in the form in which it was passed by the
Legislative Assembly. It will be noted that unlike other Bills, money Bills are not required to be
passed by the Legislative Council. That house only gives its recommendations. The Legislative
Assembly may accept or reject all or any of the recommendations of the Legislative Council. If
the Legislative Assembly accepts any of the recommendations of the Legislative Council, the
money Bill shall be deemed to have been passed by both houses with the amendments
recommended by the Legislative Council and accepted by the Legislative Assembly. On the
other hand, if the Legislative Assembly does not accept any of the recommendations, the money
Bill shall be deemed to have been passed by the both the houses in the form in which it was
passed by the Legislative Assembly without any of the amendments recommended by the
Legislative Council.

When a money Bill is presented to the Governor for his assent, the Constitution requires that the
Governor shall declare that either he assents to the Bill or that he withholds his assent therefrom.
In respect of Bills other than the money Bills, the Governor has also the power to return the Bill
to State Legislature requesting it to reconsider the Bill in such manner as he may recommend in
his message. Obviously, no Governor may return a money Bill once it has been presented to him
for assent in the manner prescribed in the Constitution. These provisions regarding money Bills
have thus clearly established the control of the Legislative Assembly in financial matters.

Financial Bill
A financial Bill is briefly speaking a mixture of an Ordinary Bill and a Money Bill. It is that
Money Bill to which have been added provisions relating to ordinary legislation. It is a Bill
which contains any or all provisions mentioned in sub-clauses (a) to (g) of clause (1) of Article
199 along with provisions relating to ordinary legislation.

A Financial Bill can originate only in the Legislative Assembly.

 A financial Bill cannot be introduced in the Legislative Assembly except on the prior
recommendations of the Governor.

As regards the introduction of the financial Bill in the Assembly, it is identical with a
money Bill.

In all other respects, it is as good as an Ordinary Bill as regards the procedure for its passing
is concerned, except that a financial Bill requires the recommendations of the Governor before it
is introduced in the Legislative Assembly and it cannot be introduced in the upper house.
Financial Bills in India have to be introduced, like other Bills, through a formal motion for leave
to introduce, but any member can object to leave to introduce being granted on the ple that the
recommendation of the Governor has not been obtained.

Distinction between a Money Bill and a financial Bill

A Money Bill is a Bill which contains solely the matters specified in Article 199. Thus a Bill
only imposing new taxes is a money Bill and so is an appropriation Bill a money Bill. A
financial Bill is a Bill in which certain matters extraneous to those that are strictly of a financial
nature are also included. In other words, a financial Bill, apart from dealing with one or more of
the matters set out in Article 199, deals with other matters also. A financial Bill is a money Bill
to which have also been added provisions of general legislation. As a matter of description all
money Bills are financial Bills but all financial Bills are not money Bills. “Financial Bills are
those that contain any or more of the subjects of money Bills and also other matters not of an
incidental nature.”

The two differ in their procedure ; a money Bill is passed in accordance with the procedure laid
down in Article 198, but a Financial Bill has to be passed according to the ordinary procedure.

Assent to Bills
When a Bill has been passed by the both the houses of the Legislature of the State, it shall be
presented to the Governor, who may take one of the following four courses:

(i) he may assent to the Bill,

 (ii) he may withhold his assent,
(iii) he may reserve the Bill for the consideration of the president, or
(iv) he may return the Bill to the houses, if it is not a Money Bill, with a request that the
Bill or any specified provision of it may be considered again and emphasize, in
particular, the desirability of introducing any such amendments as he may
recommend.

In the event of the Governor taking the forth course, namely, returning the Bill for
reconsideration, it shall be the duty of the Houses to reconsider it. But if the Bill is passed, again
by the houses (with or without amendments) and presented to the Governor for assent, he shall
not withhold assent therefrom. He must either give the assent or reserve the Bill for the sanction
of the President. He cannot then reject it.

In law the Governor can refuse to give his assent to a Bill i.e. he can veto a Bill. If he does so,
the Bill cannot becomes an Act. But in the form of Government set up under the Constitution it
would be politically impossible for a Governor to refuse his assent to a Bill, after it has been
passed by the Legislature, because he acts in this matter, as in all other public matters, on the
advice of his cabinet, and no Bill could pass through both the houses and come before the
Governor for his assent, if it was opposed by the cabinet.

However, the power vested in the Governor to reserve a bill for the consideration of the president
is discretionary. It is his discretion whether the bill should be reserved for the consideration of
the president, and in this respect the Governor becomes an important link between the union and
the states thereby enabling the union to exercise some kind of control over the legislative
activities of the states. For example, the Kerala Education bill of 1957, and the Kerala Agrarian
Reform bill of 1957, passed by the state Legislature were reserved for the consideration of the
president and later returned by him for reconsideration, by the state Legislature, the former in the
light of the advisory opinion of the Supreme Court and the latter in the light of changes
suggested by him. The Madhya Pradesh Panchayat Bill of 1961, was reserved by the Governor
for the consideration of the president but it was returned on the ground of some of its provisions
being undemocratic and opposed to the Directive Principles.
The second proviso to the article 200 is intended to preserve the independence, dignity and status
of a High Court. Under the Constitution the state Legislatures have exclusive law-making power
on matters touching the jurisdiction and powers of all Courts within the state in respect of
matters within their exclusive competence. The powers might be used by a state Legislature to
deprive the high Court of much of its jurisdiction and power, and to transfer the same to inferior
Courts, and to lower the prestige and influence of the high Court. As a safeguard, the Governor
has been directed by this proviso no to assent to, but to reserve for consideration by the
president, may bill which would, in the opinion of the Governor, if passed into law, so derogate
from the powers of the high Court as to endanger the role which it is designed to fulfill under the
Constitution.

Power of Legislative council over bills other than money bills

(Article 197)
(1) If after a Bill has been passed by the Legislative Assembly of a State having a Legislative
Council and transmitted to the Legislative Council

(a) The Bill is rejected by the Council; or

(b) more than three months elapse from the date on which the Bill is laid before the Council
without the Bill being passed by it; or

(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does
not agree; the Legislative Assembly may, subject to the rules regulating its procedure, pass the
Bill again in the same or in any subsequent session with or without such amendments, if any, as
have been made, suggested or agreed to by the Legislative Council and then transmit the Bill as
so passed to the Legislative Council

(2) If after a Bill has been so passed for the second time by the Legislative Assembly and
transmitted to the Legislative Council

(a) The Bill is rejected by the Council; or

(b) more than one month elapses from the date on which the Bill is laid before the Council
without the Bill being passed by it; or

(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does
not agree; the Bill shall be deemed to have been passed by the Houses of the Legislature of the
State in the form in which it was passed by the Legislative Assembly for the second time with
such amendments, if any, as have been made or suggested by the Legislative Council and agreed
to by the Legislative Assembly

(3) Nothing in this article shall apply to a Money Bill.

This article differs from the provisions of article 108, ante, relating to the union Parliament.

While a difference between the two houses of the union Parliament is to be resolved
by a joint sitting, there is no provision for solving differences between the two houses of the state
Legislature,- in this latter case, the will of the lower house, viz., the Assembly, shall ultimately
prevail and the council shall have no more power than to interpose some delay in the passage of
the bill to which it disagrees.

This difference of treatment in the two cases is due to the adoption of two different
principles as regards the union and the state Legislatures.

As to the union Parliament, ---- it has been said that since the upper house represents the federal
character of the Constitution, it should have a status better than that of a mere dilatory body.
Hence, the Constitution provides for a joint sitting of both houses in case of disagreement
between the house of the people and the council of states, though, of course, the house will
ultimately have an upper hand, owing to its numerical majority at the joint sitting. This provision
for joint sitting is borrowed from the government of India Act, 1935 and the Constitution of
Australia (where joint sitting is the ultimate remedy.)

As regards the two houses of the state Legislature, however, the Constitution of India adopts
the English system founded on the Parliament act, 1911, viz., that the upper house must
eventually give way to the lower house which represents the will of the people. Under this
system, the upper house has no power to obstruct the popular house other than to affect some
delay. This democratic provision has been adopted in the case of the state Legislature in our
Constitution in as much as in this case, no question of federal importance of the upper house
arises.

Procedure regarding bills other than money bills.

If a bill (other than a money bill) is passed by the legislative Assembly and the council ---

i. rejects the bill, or

ii. passes it with such amendments as are not agreeable to the Assembly ; or
iii. Does not pass the bill within 3 months from the time when it is laid before the
council, -- the legislative Assembly may again pass the bill with or without further
amendments, and transmit the bill to the council again.

If, on this second occasion, the council,--

(a) again rejects the bill, or

(b) proposes amendments, or
(c) Does not pass it within one month of the date on which it is laid before the council, the
bill shall be deemed to have been passed by both houses, and then presented to the
Governor for this assent.

In short, in the state Legislature, a bill, as regards which the council does not agree with the
Assembly, shall have two journeys from the Assembly to the council. In the first journey, the
council shall not have the power to withhold the bill for more than three months and in the
second journey, not more than one month, and at the end of this period the bill shall become law
over the head of the council, even though it remains altogether inert.

The three contingencies in which the Assembly gets this overriding power are---

(i) when the bill is considered by the council but rejects completely ; or
(ii) when the council sits upon the bill without taking any action or delays beyond the
time which is specified for consideration of the bill ; or
(iii) When the council does not agree to pass the bill in the same form in which it has been
passed by the Assembly.
 “Having been passed by the Assembly”.

These words indicate that the provisions of this article apply only where a bill originating in
the Assembly is rejected by the council. Where a bill originating in the council is rejected by
the Assembly, there is a immediate end of the bill.

Restriction On The Powers Of The State Legislatures

There are many restrictions on the powers of the state Legislature which make them subservient
to the will of the Parliament despite the fact that the Constitution allots them a certain residue of
authority that, just for some theoretical reasons, may be identified with their area of sovereignty.
The restriction on the powers of the state Legislatures is as follows:

(i) State Legislatures can neither legislate on an item of the Union List nor a residuary subject.

(ii) Though it can enact laws on a subject mentioned in the Concurrent List, it is Central law
which shall prevail and to the extent to which the state law is violative of Central law it will be
ultra vires or Constitutional.

(iii) Article 249 provides that the Rajya Sabha may pass a special resolution by a two thirds
majority of members, present and voting, to transfer any item from the State List to the Union or
Concurrent Lists for the period of one year on the plea that it is expedient in the national interest.

(iv) There are some categories that require that a bill passed by the state Legislature shall be
reserved by the Governor for the consideration of the President, even though unanimously passed
by the state Legislature. Bill dealing with compulsory acquisition of private property, being
derogatory to the powers of the High Court, or seeking imposition of tax on a commodity
‘essential1 by an act of Parliament, or any other bill likely to conflict with some Union law
already in force fall within this category.

(v) The state Legislatures cannot override the veto of the President.

(vi) There are some kinds of bills that cannot be introduced in the state Legislatures without the
prior permission of the President. Bills seeking to impose restrictions on trade, commerce or
intercourse with other states or within the state fall within this category.
(vii) The President is empowered to declare states of emergency in the country without
consulting the states. But once such an emergency has been declared, the Parliament is
empowered to legislate on the subject mentioned in the State List.

Restriction on a discussion in the Legislature.

The article 211 provides that no discussion shall take place in the Legislature of a state with
respect to the conduct of any judge of the Supreme Court or of a high Court in the discharge of
his duties. This provision amounts to an absolute Constitutional prohibition against any decision
in the Legislature of a state in respect of the judicial conduct of a judge of the Supreme Court or
of a high Court. Article 121 provides that no discussion shall take place in Parliament with
respect to the conduct of any judge of the Supreme Court or of a high Court in the discharge of
his duties except upon a motion for presenting an address to the president praying for the
removal of the judge under the circumstances stated in the Constitution. Thus, reading the two
Articles 121 and 211 together, it is clear that the judicial conduct of a judge cannot be discussed
in the state Legislature. It can be in Parliament only, upon a motion for presenting an address to
the president praying for the removal of the judge. The Constitution-makers attached so much
importance to the independence of the judiciary in this country that they thought necessary to
place them beyond any controversy except in the manner provided in article 121.

Powers, privileges and immunities of the state Legislatures

and their members
Article 194 :- Powers, privileges, etc, of the House of Legislatures and of the members and
committees thereof

(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating
the procedure of the Legislature, there shall be freedom of speech in the Legislature of every
State.

(2) No member of the Legislature of a State shall be 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,
and no person shall be so liable in respect of the publication by or under the authority of a House
of such a Legislature of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a
State, and of the members and the committees of a House of such Legislature, shall be such as
may from time to time be defined by the Legislature by law, and, until so defined, shall be those
of that House and of its members and committees immediately before the coming into force of
Section 26 of the Constitution forty fourth Amendment Act, 1978.

(4) The provisions of clauses ( 1 ), ( 2 ) and ( 3 ) shall apply in relation to persons who by virtue
of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a
House of the Legislature of a State or any committee thereof as they apply in relation to
members of that Legislature.

Parliamentary privileges: - this article which applies to the state Legislatures and members and
committees thereof is an exact reproduction of Article 105 which applies to both houses of
Parliament and members and committees thereof.

To enable a Legislature to discharge its function properly the Constitution confers on each
member of the houses certain rights and immunities and also certain rights and immunities and
powers of each house collectively. The term “Parliamentary privileges” is used in Constitutional
writings to denote both these types of rights and immunities. May has defined the expression
“Parliamentary privileges” as follows:

The sum of the peculiar rights enjoyed by each house collectively is a constituent part
of the high Court, Parliament, and by members of each house individually, without which they
could not discharge their functions, and which exceed those possessed by other bodies or
individuals.

Parliamentary privileges are an essential incident to the high and multifarious functions which
the Legislature is called upon to perform. According to May, the distinctive mark of the privilege
is its “ancillary character”, i.e., a necessary means to fulfillment of functions. They are enjoyed
by individual members because the house cannot perform its functions without unimpeded use of
the services of its members; and by each house for the protection of its members and the
vindication of its own authority and dignity.

In defining Parliamentary privileges, this article, like article 105 relating to Parliament, adopts
the following method. Two privileges, namely: freedom of speech and freedom of publications
of proceedings, are specifically mentioned in clauses (1) and (2). With respect to other privileges
of each house, clause (3) lays down that the Powers, privileges and immunities of the state
Legislatures shall be those of the house of commons of the United Kingdom, until they are
defined by an act of the Legislature.

In the case of Raja Ram Pal v Hon’ble speaker26 , defined the term privilege as “A special
right, advantage or benefit conferred on a particular person. It is a peculiar advantage or favor
granted to one person as against another to do certain acts”. Inherent in the term is the idea of
something, apart and distinct from a common right which is enjoyed by all persons and connotes
some sort of special grant by the sovereign. The word grant by sovereign refers the privilege is
conferred to them by the higher authority and the privilege an immunity is derived from them
only to such members.

We shall first explain the privileges specifically mentioned in this article and then state the
privileges of the House of Commons in England.

1. Freedom of speech – Clause (1) of article 194 declares that there shall be freedom of
speech in the Legislature of every state. Article 194 (1) is made “subject to the provisions
of this Constitution and to the rules and standing orders regulating the procedure of the
Legislature.’ Thus, its freedom would be subject to provisions of articles 208 and 211.a
member cannot accordingly raise a discussion as to the conduct of a supreme Court or a
high Court judge as it is prohibited by article 211.In interpreting this clause, it is
necessary to emphasize that the provisions of the Constitution subject to which freedom
of speech has been conferred on the legislators are not the general provisions of the
Constitution but only such of them as relate to the regulation of the procedure of the
Legislature.

26
AIR 2007.
The freedom of speech guaranteed under clause (1) is different from that which a citizen enjoys
as a fundamental right under article 19(1)(a). The freedom of speech as a fundamental right does
not protect an individual absolutely for what he says. The right is subject to reasonable
restrictions under clause (2) of article 19.

The freedom of speech guaranteed to citizens under article 19(1)(a) is therefore separate and
independent of article 194(1) and does not control the first part of clause (1) of article 194.

The term “freedom of speech” as used in this article means that no member of Legislature shall
be liable to any proceedings, civil or criminal, in any Court for the statements made in debates in
state Legislature or any committee thereof. The freedom of speech conferred under this article
cannot, therefore, be restricted under article 19(2).

Clauses (1) and (2) of article 194 protect what is said within the house and not what a member of
Legislature may say outside. Accordingly, if a member publishes his speech outside a state
Legislature, he will be held liable if the speech is defamatory27.

In P.V. Narsimha Rao v. State28, (JMM Bribery Case) it was held that the privilege of
immunity from the Courts proceedings in Article 105 (2) extends even to bribes taken by the
members of Parliament for the purpose of voting in a particular manner in Parliament. The Court
further held that the bribe taker MP, who did not vote on the no-confidence motion, was not
entitled to protection under Article 105 (2). To bribe giver MPs, it was held, the protection under
article 105 (2) was not available. The Court ruled that the Lok Sabha could take action for breach
of privilege or contempt against the alleged bribe givers and against the alleged bribe takers,
whether or not they were members of Parliament.
2. Right of publication of proceedings: - According to Article 194(2) no person shall be
liable to any proceedings in any Court in respect of the publication by or under the
authority of a house of such a Legislature of any report, paper, votes or proceedings. This
privilege is available only to the publication made by or under the authority of a house. If
a private person publishes the report or proceedings of the house without the authority, he
will not be entitled to this privilege and thus cannot be protected under this article 29.
27
Jatish Chandra Ghose v. Hari Sadhan Mukherjee, AIR 1956 Cal 433.
28
AIR 1998 SC 2120.

29
Satish v. Harisadhan AIR 1961 SC 613.
 However, article 361A makes provision for protection of publications of proceedings of
Parliament and state Legislatures. It provides that no person shall be liable to any
proceedings (civil or criminal) in may Court in respect of the publication of a newspaper
of a substantially true report of any proceeding of either house of Parliament or the
legislative Assembly or either house of the Legislature of a state, unless the publications
is proved to have been made with malice. This protection is not available in respect of the
publication of any report of the proceedings of a secret sitting of either house of
Parliament or the legislative Assembly or either house of the Legislature of a state.

In M.S.M. Sharma v. S.K.Sinha30 popularly known as Searchlight case, the editor of the
weekly was punished for the contempt of the legislative Assembly of the state of Bihar for
publishing those parts of the speech of a member which had been ordered to be expunged
from the proceedings of the Assembly. The Supreme Court upheld the action taken against
the editor and said that the House of Commons in England had, at the commencement of our
Constitution, the power or privilege of prohibiting the publishing of even a true and faithful
report of the debates or proceedings that took place within the house. The Court said that “the
effect in law of the order of the Speaker to expunge a portion of the speech” of member
might be as if that portion had not been spoken.

3. Freedom from arrest: - In England a Member of Parliament cannot be arrested in civil

proceedings within a period of 40 days before and 40 days after a meeting of
Parliament31. In India also a Member of Parliament or a state Legislature cannot be
arrested or imprisoned in civil proceedings 40 days before the commencement and 40
days after the termination of a session of the house. This privilege is available only in
respect of the arrest under civil process and thus it does not extend to arrest under
criminal proceedings or under the Prevention Detention Act32.

30
AIR 1959 SC 395
31
Wade & Philips, Constitutional Law, p. 163.
32
Ansumali v. State of west Bengal, AIR 1952 Cal 632.
In K.Anandan v. Chief Secretary, Government of Madras33 the Court has made it clear that
the members of the Legislature are as much liable to be arrested under a valid detention order as
other citizens. In England also the members of Parliament enjoy such privilege.

In Gunupati Keshavram Reddi v. Nafisul Hasan34, one Home Ministry was arrested at his
Bombay residence under a warrant issued by the Speaker of U.P. Legislative Assembly for
contempt of the House and was flown to Lucknow and kept in a hotel in Speaker’s custody. On
his applying for a writ of habeas corpus on the ground that his detention was in violation of
Article 22(2), the Supreme Court quashed the detention and ordered his release as he had not
been produced before a Magistrate within 24 hours of his arrest as provided in Article 22 (2).
This decision therefore indicated that Article 194 (or Article 105) was subject to the fundamental
right guaranteed under Article 22(2) in Part III of the Constitution.

However, in M.S.M. Sharma v. S.K. Sinha, ] it was also contended by the petitioner that the
privileges of the House under A.194 (3) are subject to the provision of Part III of the
Constitution. In support of his contention the petitioner relied on the Supreme Court’s decision
in Gunupati Keshavram Reddi v. Nafisul Hasan. But, in Sharma’s case the Supreme Court held
that in case of conflict between fundamental right under Article 19 (1) (a) and a privilege under
Article 194 (3) the latter would prevail. As regards Article 21, on facts the Court did not find any
violation of it.

IN Keshava Singh’s Case or U.P. Assembly Case35, one Keshava Singh, a non- member, of the
U.P. Assembly printed and published a pamphlet. The Speaker of the U.P. Legislative Assembly
reprimanded him for contempt and breach of the privilege of the member Mr. Narsingh Naraina
Pandey. On the same day, Mr. Keshava Singh, who was present in the house, by his conduct,
committed contempt in the house. The Speaker, thereupon, directed Mr. Keshava Singh to be
admitted to prison. A warrant was issued for his detention in the jail for 7 days and he was so
detained.

33
AIR 1966 SC 657.
34
AIR 1954 SC 636.
35
AIR 1965.
Mr. Soloman, his advocate, moved under Section 491 CrPC read with Article 226, a Habeas
Corpus petition alleging that his detention in jail was illegal and malafide because he was not
given an opportunity to defend himself. The petition was heard by 2 Judges of Allahabad High
Court which granted an interim bail to Keshava Singh and he was released, pending the decision
of the case on merit.

On this, the Assembly, by a resolution took the view that the 2 Judges, Mr. Keshava Singh and
Mr. Soloman had committed Contempt of the Assembly and ordered that the Keshava Singh be
immediately taken into custody and the 2 Judges and the Advocate be brought in custody before
the House. At this, the 2 Judges and the Advocate, by separate petitions moved under 226 the
High Court, contended that the resolution amounted to contempt of Court and that it be set aside
and its implementation be stayed by interim order.

The petition was heard by the Full Bench of all the 28 Judges of the Allahabad High Court. The
Court ordered the stay of implementation of the resolution. The Assembly modified its order and
the warrant against the 2 Judges was withdrawn, but they were asked to appear before the House
and explain their conduct. The Judges moved an application before the Court against the
modified order and the Court granted the stay against the implementation of the later order.

At this stage, the President referred the matter to the Supreme Court, invoking the provisions of
Article 143(1), for obtaining its advisory opinion. The main questions referred to were-

1. Whether the Legislature is the sole and exclusive Judge of its privileges and whether it is
competent to punish a person for its contempt taking place outside the Legislature?

2. Whether the High Court who entertained a petition of habeas corpus challenging the
validity of the detention of a person sentenced by the Assembly under a general or
unspeaking warrant has committed contempt of the Legislature?

The Supreme Court by a majority of 6:1 held that the 2 Judges did not commit the contempt of
the house by issuing an interim bail order. The Court explained that the Court under Article 226
had jurisdiction to order release of a person from illegal detention.
The Court said that the Courts in India could examine the validity of detention of a person,
sentenced by the Assembly, under a general or unspeaking warrant.

4. Right to exclude Strangers: - In England this right has been used by the House of Parliament
to go into secret sessions to discuss some important matters. The Houses of Parliament of India
enjoy a similar power. However, in modern times, secret sessions are held only on exceptional
occasions because voters must be kept informed of what their representatives are doing in the
Legislature.

This may be regarded as a corollary to the freedom of speech. The right was used in the
eighteenth century mainly to prevent reports being made to outsiders, especially to the king,
of speeches made in the house. In modern times, it is only exercised on exceptional
occasions, as for instance in 1920 and 1922 the strangers’ and ladies’ galleries were closed
for some months owing to the fear of disorder while the question of Irish Home Rule was
under consideration of the house. The privilege was also exercised during the wars of 1914-
18 and 1939-45, when secret sessions were held frequently to discuss certain important
matters. Secret sessions are, however, to be avoided, except for imperative reason, and it is
necessary that the voters should be kept informed of what their representatives are doing in
the Legislature.

5. Right to regulate internal proceedings of the house: - In England the house of

commons enjoys exclusive right to regulate its own internal proceedings and the Court
cannot interfere with this right of the house. In India also the Legislatures enjoy such
privileges. According to article 208 each house of Legislature of a state may make rules
for regulating its procedure and the conduct of its business subject to the provisions of the
Constitution of India. Article 212 makes it clear that the validity of proceedings in the
Legislature of a state cannot be called in question in a Court of law on the ground of any
alleged irregularity of procedure and no officer or Legislature of a state in whom powers
are vested by or under this Constitution for regulating procedure or the conduct of
business or for maintaining order in the Legislature shall be subject to the jurisdiction of
any Court in respect of the exercise by him of those powers. However, the house has no
right to deal with crimes committed within the house.
 In Bradlaugh v. Gossel36 it was held that the house of commons is not subject to the
control of the law Courts in matters relating to its internal procedure nor can be the
Courts inquire into the propriety of the resolutions of the house restraining a member
from doing within the house what he may, under the ordinary law, be entitled to do. Even
if the house departs from its own rules of procedure no Court has the right to interfere on
the ground of non-observance of such rules. Again the house has the right to regulate its
own Constitution and provide for its due composition. The house can declare on the
existence of legal disqualifications of any one elected to the house and to declare the seat
vacant consequent to such a decision. No member of the house can be compelled be any
Court to give evidence before it for anything relating to the proceedings of the house.
6. Right to punish members for contempt of the house: - The British House of Commons
can punish members and outsiders for breach of privileges and contempt of the house. If
the person committing the breach of privileges or contempt of the house is also a member
of the house, the house may suspend him or expel37 him. However, the member so
expelled may be re-elected.38 The expulsion, thus, does not disqualify the member from
seeking re- election for the house.

In India each house of the state Legislature or of Parliament has power to punish its members
or outsiders for the breach of privileges or contempt of the house. The person committing the
breach or contempt may be punished with fine or imprisonment and if such person is a
member of the house, he may be suspended or even expelled by the house39. However, the
expulsion does not disqualify him from seeking re-election for the house Expulsion of Sri.
H.G. Mudgal in 1951 from the house of the people. Smt. Indira Gandhi in 1978 from the
house of the people etc. may be mentioned as examples of such expulsion.

The Punjab and Haryana High Court in Hardwari lal v. E.C.40 as held that “a state
Legislature in India cannot claim to possess the power to expel a member of the Indian
Legislature fro breach of privilege for any misconduct outside the legislative Assembly.” The

36
(1824) 12 Q.B.D.271.
37
E.g. Arthur Hall (1581), Robert Walpole (1712), john Wilkes (1763), etc.
38
E.g. John wilkes, Charles Bradlaugh (1880), etc.
39
Yeshwant Rao Meghawala v. M.P. Legislative Assembly, AIR 1967 M.P.94; Yogendra Nath v. State, A.I.R. 1967 Raj.
123.
40
(1977) 2 I.L.R. Punj. & Har. 269.
view of Punjab and Haryana high Court does not appear to be sound. Sometimes the
suspension may not be sufficient punishment for the breach of the privilege or contempt of
the house. For example, where a member passes secret information to the outside agencies
for money, his suspension cannot be treated to be sufficient punishment. Such member is not
fit for membership and the house should have power to get rid of such member.
 Bibliography
 Narender kumar, Constitutional Law of India, Allahabad law Agency
 Dr. S. Dayal , the Constitution of India
 Kailash Rai, Constitution of India, Allahabad Law Agency
 Durga Das Basu, commentary on the Constitution of India, S.C. Sarkar and
sons pvt. Ltd. Calcutta.
 D.K. Singh, the Constitution of India, Eastern book company, lucknow.
 The Constitution of India, Bare Act.