SSRN Id4068428

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The Parliament and State Legislatures of India
- M Mohsin Alam Bhat*
Note: This is the pre-edit version of a forthcoming chapter in Po Jen Yap and Rehan
Abeyratne (eds), Routledge Handbook of Asian Parliaments (Routledge 2022).
Introduction
India today has a democratic, republican, and parliamentary form of government. The
Constitution of India (1950) incorporated the Commonwealth Model of British Westminster
system, comprising of the President as the head of the Executive, along with two houses
composed predominantly of elected members. The President is the nominal head, bound by
the aid and advice of the Prime Minister and the Council of Ministers. The Council of
Ministers, who are members of the legislature, require the support of the lower house and
hence are accountable to it. The Constitution also adopts some key elements of federalism.1
It provides for shared-rule between the centre and states, with states exercising regional
self-rule in constitutionally specified subject areas. Constitutional provisions related to the
federal distribution of powers may be amended only with the ratification of a majority of
states. Provincial or state legislative structure replicates the design at the central level.
Under India’s bicameralism, Parliament’s upper house is elected by state legislatures.
This chapter provides an overview of some of the most significant features of India’s
legislature at the parliamentary and state legislative levels. Section 1 discusses the
legislative structure, specifically its composition, basis of representation, and offices. Section
2 discusses the electoral process, and qualifications and disqualifications of members, in the
upper and lower houses. Section 3 gives an account of legislative powers and process,
including the procedures of law-making, legislative competence and constraints, and
legislative privileges. Section 4 highlights some key questions and debates regarding the
* Jindal Global Law School, O.P. Jindal Global University (India).

1
Ronald L. Watts, Comparing Federal Systems (McGill-Queen’s University Press 1999, 2nd ed.) 6-7.
Electronic copy available at: https://ssrn.com/abstract=4068428

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legislature’s role in maintaining executive accountability. It discusses the deliberative

process, the role of the legislature during emergencies, and the Executive’s law-making
powers. Finally, Section 5 highlights some important issues regarding the recognition and
regulation of political parties, which play a crucial function in India’s legislative system.
In providing this broad account, the chapter will also highlight the role of two themes that
have particular relevance to scholarly and popular debates on India’s legislature. The first
theme is the question of representation. As the chapter will show, the meaning of political
representation has been both historically significant and contentious, as legislative
institutions have evolved over time. India’s constitutional framers were invested in
incorporating a system of representation that minimized the role of divisive identities in
politics. But they also, despite deep reservations, accepted community representation.
Political representation is also at stake in debates on federalism, particularly as to the role
and capacity of Parliament’s upper house to represent the states. The section on political
parties also reveals the importance of representation. Are legislators representatives of
their constituents, or agents of political parties? Are political parties better understood as
means of political representation?
The second theme is the role of non-elected bodies in governing the country’s legislative
schemes. The most important of such bodies is, of course, the judiciary. Each of the sections
presents the dilemma of justiciability under a written constitution with a bill of rights. Which
legislative activities are (or should be) subject to judicial review, what should be the
standard of review, and hence, to what extent should courts regulate political actors?
Another important institution in this regard is the Election Commission of India, which is a
constitutional and bucreacratic body assigned with the task of conducting elections.
These themes of representation and regulation are thus two conceptual sites where the
contours of India’s parliamentary scheme continue to be shaped.

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1. Legislative Structure
(a) Composition
The Indian Parliament consists of the Executive and two houses consisting of elected and
appointed legislators. The President who heads the Executive is part of Parliament following
the Westminster model.2 Under Indian political practice and constitutional jurisprudence,
the President is bound to act under the aid and advice of the Council of Ministers and the
Prime Minister who leads it.3 The Constitution creates a bicameral parliament at the federal
level and provides for its composition. Since 1987, the lower house, called the House of the
People or the Lok Sabha, has 545 members. Until recently, the President was empowered to
nominate two members from the Anglo-Indian community if they believed the community
was not adequately represented.4 543 members are directly elected from territorial
constituencies, based on a first-pass-the-poll system. Lok Sabha members serve up to five
years, but as in the Westminster system, the House can be dissolved and new elections
declared. The upper house, called the Council of States or the Rajya Sabha currently has 250
members. The President can nominate 12 members with special knowledge or practical
experience in various fields like science, arts, public service, or literature. The remaining
seats in the Rajya Sabha are filled by representatives of states and union territories,5 who
are elected by the state legislative assemblies through a system of proportional
representation by means of a single transferable vote. The members of the Rajya Sabha
have a tenure of six years, making it a continuing house with one-third of its members
retiring every two years. The Prime Minister and the Council of Ministers can be members
of either house, but must enjoy the support of the majority in at least the Lok Sabha.
2
Constitution of India, art 79.
3
Constitution of India, arts 74, 163.
4
5
Both states and union territories are listed in the First Schedule of the Indian Constitution. The main
difference between the two is that while states have their own legislatures (assemblies, and wherever
applicable, councils), union territories usually have a stronger and more direct role of the central government
in governance. Some union territories may have legislatures, and even enjoy devolved powers, but they have
considerably lesser federalized powers compared to states.

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State legislatures are broadly analogous to Parliament. The Governor is the nominal head of
the Executive at the state-level and is appointed by the President (and hence the central
government) from among persons with special knowledge in various fields.6 The lower
house, or the Legislative Assembly, is composed of directly elected members from state
legislative constituencies. The upper houses at the state level, called the legislative councils,
are created under parliamentary law, and generally have been constituted only for larger
states.7 Under the Constitution, their membership cannot exceed one-third of the total
membership of their corresponding legislative assemblies. The Constitution designates the
proportion of legislative council members to be elected by the legislative assembly,
nominated by the Governor, and elected by electorates with an eclectic composition,
including teachers, members of local authorities, and persons with higher educational
qualifications.
(b) Basis of Representation
The Indian Parliament owes its beginnings to British colonial rule.8 Colonial constitutional
arrangements were not fully representative, with the franchise severely limited by
educational qualifications and property ownership. Under the Government of India Act,
1935, which provided the pre-independence constitutional arrangement, only 28.5 percent
of the adult population could vote in the legislative elections. The executive powers of the
Governor General and Governors, who represented the British Crown, were legally superior
to the parliamentary legislative powers. They could block and introduce legislation, and
make law without the approval of the House. Colonial legislatures thus lacked legislative
autonomy. These legislatures were also designed to provide communal representation,
especially for religious minorities. The anti-colonial nationalist movement was critical of
both these features. Its leaders were convinced that a fragmented electorate failed to unite
the country, and further aggravated existing social cleavages and divisions in the country. As
early as the 1920s, policy recommendations within the Indian National Congress, which was
6
Constitution of India, art 171(3).
7
8
For an early study of the institution, see WH Morris-Jones, Parliament in India. (Longmans, Green & Company
1959).

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the dominant anti-colonial platform, supported popularly elected assemblies at both federal
and provincial levels based on universal adult franchise.9 The nationalist position was also
deeply suspicious of separate communal electorates, but had some sympathy for special
representation for minorities, and in some cases, for landlords, labour, women, industry,
and other special constituents.
India’s Constituent Assembly thus had to formulate parliamentary powers and the nature of
political representation afresh. The fact that Indians were experienced in the Westminster
system finally became the most convincing ground for the Assembly to borrow and adapt
the Commonwealth parliamentary federal model of the Crown-in-Parliament. The most
important value for the members was the imperative of nation-building.10 As the chronicler
of the Indian constitutional framing Granville Austin notes, they wished “to create a basis
for the social and political unity of the country.”11 This meant the incorporation of universal
adult suffrage that would unite the whole country. The Constitution provides for adult
suffrage for all Indian citizens aged eighteen years and above, but beyond that, leaves the
prerogative to the legislature to provide for voter disqualifications on grounds of “non-
residence, unsoundness of mind, crime or corrupt or illegal practice.”12
The constitutional framers also rejected the principle of community representation. They
blamed minority political reservations for the country’s Partition along religious lines in
1947. Despite murmurs of dissatisfaction from religious minorities, especially some Muslim
members of the Constituent Assembly, the Constitution did not incorporate any
representational safeguards. The only special representation that was eventually
incorporated was for the former Untouchable castes (Scheduled Castes or SCs) and Adivasi
indigenous communities (Scheduled Tribes or STs). The Constitution incorporated
9
See, for example, Motilal Nehru, The Nehru Report: The Committee Appointed by the All Parties Conference
(Mickiko and Panjathan 1928).
10
For a discussion of these themes in the Constituent Assembly, see Rochana Bajpai, Debating Difference:
Group Rights and Liberal Democracy in India (OUP 2011); Madhav Khosla, India’s Founding Moment (Harvard
University Press 2020).
11
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Clarendon Press 1966) 144.
12

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reservations for SCs and STs in proportion to their population in Parliament,13 and in state
legislative assemblies.14 The framers thought this would be a temporary solution to the
problem of integration of subordinated communities. The original constitutional text placed
a limitation of ten years for political reservations, but Parliament has since extended these
reservations through constitutional amendments.15 Through subsequent amendments to
the Constitution, Parliament has also provided representation in local village and city
councils for SCs and STs, including representation for women among the SCs and STs.16
Thus, in addition to universal franchise, group representation for subordinated communities
has become an entrenched constitutional feature of democratic representation in India.17
Recently, there have been proposals to introduce one-third reservations for women in
Parliament. The representation of female members in Lok Sabha has witnessed only a
modest increase, from 4.4 percent (22 members) in 1952, to 14.36 percent (78 members) in
2019. There has been a similar modest increase in Rajya Sabha, from 6.9 percent (15
members) in 1952, to 10.2 percent (25 members) in 2020. While most political parties today
acknowledge these dismal numbers, they are yet to find common ground regarding the
proposal.
(c) Parliamentary Offices
The Constitution also provides for the official bureaucratic structure of Parliament. The Lok
Sabha chooses its Speaker and Deputy Speaker from among the elected members.18 Either
can be removed if a majority of the House moves a resolution to that effect.19 The Vice
President is the ex officio chairperson of the Rajya Sabha, and the House chooses its deputy
13
14
15
16
Constitution of India, arts 243D, 243T.
17
For a comprehensive analysis of these debates, see Niraja Gopal Jayal, Representing India: Ethnic Diversity
and the Governance of Public Institutions (Palgrave Macmillan 2006).
18
19

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chairperson under its own rules.20 These officials preside over the proceedings of the
respective houses. The presiding officers do not have the right to vote unless to break a
tie.21 If a house is deliberating on resolutions for the removal of any of these officials, the
presiding officer can participate in the proceedings, but does not have the right to vote.22
The Constitution also provides for the creation of a secretarial staff for both the houses, to
be regulated under parliamentary legislation.23 As the conductor of the sessions and
decision-maker in adjudication of process, the presiding officer, particularly the Speaker,
often finds themselves to be a “conciliator and facilitator” of the legislature.24
2. Elections
(a) Electoral Process
Under the constitutional scheme, Lok Sabha members are elected by eligible voters in
territorial constituencies. The size of constituencies and their distribution among states is
proportional to population.25 Delimitation is meant to occur in accordance with the latest
census. The Constitution authorizes Parliament to legislate the process for delimitation of
territorial constituencies,26 and removes judicial review of the delimitation process.27 As of
2021, Parliament has done this four times by creating Delimitation Commissions in 1952,
1953, 1973, and 2002. These commissions usually have an apolitical composition. For
instance, under the Delimitation Act 2002, the Commission comprised three members: the
chairperson (an active or retired Supreme Court judge); either the Chief Election
Commissioner or one of the election commissioners nominated by them; and the election
commissioner of the state concerned.28 The last delimitation was conducted in 1972 based
20
21
Constitution of India, arts 100(1), 100(2).
22
23
24
Vernon Hewitt and Shirin M Rai, ‘Parliament’ in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The
Oxford Companion to Politics in India (OUP 2010) 28, 37-38.
25
Constitution of India, arts 81(2), 82.
26
27
Constitution of India, art 329(a).
28
See Delimitation Act, 2002, s 3.

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on the 1971 census, but was paused through a constitutional amendment until the first
census after 2026. This was done to ensure that states, which implemented family planning
measures to slow population growth, were not penalized or disincentivized by reducing
their representation in Parliament. Similarly, intra-state adjustments are currently based on
the 2001 census, and there will be no further adjustments until the first census after 2026.
The Constitution creates a broad legal architecture to govern India’s electoral process,
leaving the details to be legislated. It authorizes Parliament - and to the extent Parliament
has not provided, state legislatures - to make laws regarding elections to Parliament or state
legislatures.29 Parliament passed two laws, the Representation of Peoples Acts of 1950 and
1951 (RPAs 1950 and 1951), which provide the legal framework governing elections.
Significantly, the Constitution also creates the institution of the Election Commission of
India (ECI). The ECI is what recent scholarship has identified as a fourth branch institution, to
secure electoral integrity through independent management and regulation of the electoral
process.30 The Constitution vests the conduct of elections to Parliament and state
legislatures, and the elections of President and Vice-President in the ECI.31 While the RPAs
provide most of the powers and procedures in relation to the ECI, the institution also
exercises powers independent of legislation. The Supreme Court has ruled that these
independent powers to regulate India’s electoral process are “plenary”, especially in the
absence of legislative guidance.32 This has made the ECI an especially powerful institution,
29
Constitution of India, arts 327, 328
30
Mark Tushnet, ‘Institutions Protecting Constitutional Democracy: Some Conceptual and
Methodological Preliminaries’ (2020) 70(2) University of Toronto LJ 95; Tarunabh Khaitan, ‘Guarantor
Institutions’ (2021) Asian Journal of Comparative Law (forthcoming); Michael Pal, ‘Electoral Management
Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85. For an early and
field-initative article on the issue, see Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard LR
1.
31
32
See, for example, Kanhiyalal Omar v RK Trivedi (1985) 4 SCC 628. See generally, M Mohsin Alam Bhat,
‘Between Trust and Democracy: The Election Commission of India and the Question of Constitutional
Accountability’in Swati Jhaveri, Tarunabh Khaitan and Dinesha Samararatne (eds), Constitutional Resilience
Beyond Courts: Views from South Asia (Bloomsbury 2022) (forthcoming).

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as its organizes, manages, and regulates elections both in conjunction with parliamentary
legislation as well as independent of it.33
The ECI conducts all stages of elections. While it does not currently have a fully independent
secretariat, parliamentary legislation gives it authority over state officials who work under
its authority on deputation for the purposes of election management.34 The ECI
authenticates and maintains the delimitation of constituencies conducted by the
delimitation commission.35 One of its most important roles is the superintendence,
direction, and control over preparing electoral rolls.36 It is authorized to determine whether
a person meets the legal standards for disqualification for violating norms against corrupt
electoral practices, corruption, disloyalty, or lack of transparency in election expenses.37 The
ECI also has the power to adjudicate the extent or length of disqualification in most cases.38
The ECI’s determination is binding on the government.39 It allots symbols to political
parties,40 registers them, and when disputes arise, adjudicates which splinter group retains
the name and symbol of the party.41 The ECI further administers the nomination process for
candidates.42 It conducts and oversees the voting process through a network of officials,
from the polling stations all the way to the counting process,43 and the declaration of
33
M Mohsin Alam Bhat, ‘Governing Democracy Outside the Law: India’s Election Commission and the
Challenge of Accountability’ (2021) Asian Journal of Comparative Law (forthcoming). See also Alistair
McMillan, ‘The Election Commission of India and the Regulation and Administration of Electoral Politics’ (2012)
11(2) Election Law Journal: Rules, Politics, and Policy 187; Ujjwal Kumar Singh and Anupama Roy, Election
Commission of India (OUP 2019).
34
These include election officers at various levels of government. See RPA 1950, ss 13A, 13AA, 13C, 13CC.
35
RPA 1950, ss 8, 9.
36
Constitution of India, art 324; RPA 1950, ss 15-21.
37
RPA 1951, ss 8A, 9, 10A.
38
RPA 1951, s 11, 11B.
39
RPA 1951, ss 8A(3), 9(2).
40
The Election Symbols (Reservation and Allotment) Order, 1968.
41
RPA 1950, s 29A.
42
RPA 1950, s 30.
43
RPA 1950, ss 19A-29.

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results.44 The Constitution provides that elections to Parliament or state legislatures cannot
be questioned outside the process provided under legislation.45
The ECI exercises wide discretionary powers in various areas. For instance, the ECI is
empowered to recommend to the Executive dates for parliamentary elections,46 and to fix
the time period for voting.47 The Supreme Court has held that the ECI is not bound by any
timeline, and is free to ascertain the most suitable election timelines.48 The ECI also
enforces the Model Code of Conduct (MCC), which is a non-legal code of electoral ethics
meant to target unfair and corrupt practices during the elections.49 The ECI usually triggers
the MCC a few weeks before elections, which halts the government from introducing any
new policy that may be deemed to unfairly influence voters. The ECI has often used the
MCC to enforce campaign bars on defaulting candidates.
Until 1966, the ECI could hear disputes about the validity of election results. Election
petitions raising these disputes can now only be heard by state high courts.50 A high court
can entertain petitions within a limited time after the declaration of results, and may hold
them void if it finds that the successful candidate is unqualified or disqualified, or that they
or their agent has committed an act that qualifies as a “corrupt practice” under the law.51 A
high court may also hold that another candidate won the election if after adjudication it is
found that they receved the majority of votes or would have done so if there had been no
corrupt practices.52 The Supreme Court is authorized to hear appeals from these high court
judgments.53
44
RPA 1950 ss 66, 73.
45
Constitution of India, art 329(b).
46
RPA 1951, ss 12, 14(2), 15, 15A, 16 .
47
RPA 1950, s 56.
48
In the Matter of Special Reference Case No. 1 of 2002, (2002) 8 SCC 237.
49
Election Commission of India, ‘Model Code of Conduct for the Guidance of Political Parties and Candidates’
<https://eci.gov.in/mcc> accessed 1 October 2021.
50
RPA 1951, s 80A.
51
RPA 1951, s 100.
52
RPA 1951, s 101.
53
RPA 1951, s 116A.
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The structure of the ECI - particularly the appointment of its officials, their competence, and
independence - is thus crucial to the integrity of India’s electoral process. While the
institution has consistently enjoyed a relatively high degree of public confidence, the
institutional mechanisms of its independence are not fully secure. The constitutional text
protects the conditions of tenure and service for the Chief Election Commissioner, who
heads the institution,54 but it does not provide a bipartisan mechanism for their
appointment. The Commissioner is appointed by the President on the advice of the Council
of Ministers. The Constitution also does not provide a secure system to select the additional
electional commissioners who may join the institution with potentially equal decision-
making powers to the Commissioner. The Indian Supreme Court has taken a permissive
approach towards the power of Parliament to determine these questions, without
adequately considering its implications for the ECI’s institutional independence.55
(b) Qualifications and Disqualifications
The Constitution specifies qualifications for members of Parliament. A parliamentarian must

be an Indian citizen, above the age of 25 years for the Lok Sabha or 30 years for the Rajya
Sabha, and meet any further qualifications required by parliamentary legislation.56
Parliament has laid down these requirements in RPAs 1950 and 1951. A person standing for
the Lok Sabha must be an elector registered on the electoral roll in any part of the
country.57 There are additional requirements to be elected for a seat that is reserved for SCs
and STs.58 The Constitution and RPAs also provide grounds of disqualification for new and
continuing members. Under the Constitution, members of Parliament are disqualified if
they: (1) hold an “office of profit”, (2) are declared by a competent court to be of unsound
mind, (3) are undischarged insolvents, (4) are not Indian citizens or have allegiance to
54
55
SS Dhanoa v Union of India (1991) 3 SCC 567; TN Seshan, Chief Election Commissioner of India v Union of
India [1995] 4 SCC 611. For a discussion of the weaknesses of this jurisprudence, see Bhat, ‘Governing
Democracy Outside the Law’; Ramaswamy R Iyer, ‘The Election Commission and the Judgment’ (1996) 31
Economic and Political Weekly 37.
56
57
RPA 1951, s 4(d).
58
RPA 1951, ss 4(1)-(c).
11

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another state, (5) are disqualified under any parliamentary law, and (6) are disqualified
under the Tenth Schedule.59 Similar conditions apply in the case of state legislatures.
The “office of profit” disqualification has been the subject of political and legal controversy.
The requirement is based on the principle of separation of powers and the allied ideal that
members of Parliament should be independent of the Executive in holding the government
accountable to Parliament. The Constitution requires that except for ministers of the
government, no member of Parliament or state legislatures can hold an office that may be
one of profit under the government, and which has not been excluded under parliamentary
law.60 The Supreme Court has held that an office needs to exist independently of the
appointed person. Profit can be pecuniary or otherwise, need not involve actual reception
of gain, and would include even the capacity of yielding a profit or pecuniary gain.61 In order
to constitute an office that is under the government, the Court has held that the
government needs to make the appointment, have the power to remove the person, and
pay the remuneration. In addition, the functions of the office must benefit the government,
and the government must have control over these functions. Parliament enacted three laws
in 1950, 1951 and 1954 regulating the content of the disqualification and exempted
numerous offices. Critics have noted that the range of legislated exemptions do not reflect a
coherent principle, which has weakened the constitutional mandate.62 They have advocated
revisiting these laws, including to reduce the range of exceptions, and laying down rational
criteria that respect the separation of powers and legislative independence.
Parliament has specified further disqualifications in addition to the constitutionally listed

ones. Parliamentary legislation provides disqualifications for varying time periods on
grounds that include conviction for some serious offences, corruption or disloyalty to the
state, and some cases of conflict of interest.63 Parliament attempted to relax some of these
59
Infra notes 165-171 and accompanying text.
60
61
Jaya Bachchan v Union of India, (2006) 5 SCC 266.
62
MR Madhavan, ‘Legislature’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford
Handbook of the Indian Constitution (OUP 2016) 270, 278.
63
RPA 1951, part II, chs III, IV.
12

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disqualifications specifically for sitting members,64 but the Supreme Court has invalidated
differentiated regimes for sitting members and persons seeking legislative office.65
(c) Bicameralism and Composition of the Upper House
The creation of an upper house was a key puzzle in the Constituency Assembly. The
constitution framers could not rely on the existing colonial system that was based on
devolution of political authority from the center, rather than federalism. The protection of
minority interests has historically been one of the prominent justifications for an upper
house.66 But members of the Constituent Assembly were critical of this rationale. Many
members of the Assembly were concerned that an upper house would represent local
interests, and hence introduce or entrench divisive politics. Members were also worried
that the body would be undemocratic and potentially stall popular legislation passed by the
lower house.
Nevertheless, there have been three other inter-related rationales that find resonance in
India’s constitutional history. First, the upper house has a federalism rationale by
representing states at the national level. Under the Constitution, members of the Rajya
Sabha are elected by state legislatures, and the Rajya Sabha authorizes Parliament’s actions
in areas that have a bearing on the rights of states.67 This role of bicameralism – of
integrating sub-national interests in formulation of policy – is well recognized in the
literature on federalism.68 This federalism rationale is distinct from minority protection,
because state legislatures would be dominated by regional majorities. The rationale is
meant to serve at least two normative purposes. The “diversity” rather than “duplication of
64
If a sitting legislator is convicted, the disqualification will come into effect after 3 months, or until a court
disposes any appeal or application filed by her.
65
Lily Thomas v Union of India, (2013) 7 SCC 653.
66
William B. Heller and Diana M. Branduse, ‘The Politics of Bicameralism’ in Shane Martin, Thomas Saalfeld
and Kaare W. Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 332, 335.
67
Infra note 97 and accompanying text.
68
Saul Levmore, ‘Bicameralism: When are Two Decisions Better than One?’ (1992) 12(2) International Review
of Law and Economics 145; Arend Lijphart, ‘Consociation and Federation: Conceptual and Empirical Links’
(1979) 12(3) Canadian Journal of Political Science 499.
13

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political representation”69 between the two houses deepens and enriches Parliament’s
representative quotient, and hence its democratic legitimacy. The federalism rationale also
enhances regional acceptance of national policies. Second, the Rajya Sabha also has a
deliberative function. The role of upper houses in providing “representation to the wise”70
or acting like a “chambre de réflexion”71 has been appreciated in the scholarship on
constitutional design. On similar lines, constitutional framers believed that an upper house
would check the majoritarian impulses of a directly elected lower house by introducing a
deliberative pause in the legislative process. Apart from extending the deliberative process,
the members of the Rajya Sabha can arguably debate the merits of legislation alleviated
from the immediate pressures of direct popular elections. The constitutional arrangement
emphasizes this role of the Rajya Sabha. In terms of powers, there is an asymmetry between
the Lok Sabha and Rajya Sabha, significantly in relation to economic policy that was high on
the agenda of the constitutional framers. Only the Lok Sabha can introduce and pass money
bills dealing with economic policy. But the Rajya Sabha has the power to deliberate on the
merits of money bills, and make recommendations to the Lok Sabha.
The federalism and deliberative rationales of the Rajya Sabha feed into the counter-
majoritarian rationale. The Rajya Sabha’s counter-majoritarian role relies on its
representative character being different from that of the Lok Sabha. Elections to the Rajya
Sabha are staggered, and elections to state legislatures (that elect the Rajya Sabha
members) are not usually held simultaneously with the Lok Sabha. Consequently, the Lok
Sabha and the Rajya Sabha are at least theoretically expected to have contrasting political
opinions and interests. This makes the Rajya Sabha a crucial and productive democratic
barrier against excessively dominant political majorities in the Lok Sabha. This role has
become exceedingly important in recent times, owing to the need to check excessive prime-
69
John Uhr, ‘Bicameralism’ in Sarah A. Binder, R. A. W. Rhodes and Bert A. Rockman (eds), The Oxford
Handbook of Political Institutions (OUP 2008) 474, 479.
70
Heller and Branduse, ‘The Politics of Bicameralism’ 335.
71
Heller and Branduse, ‘The Politics of Bicameralism’ 336.
14

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ministerial control over the Executive, and the rise of populist politics that can dominate the
lower house and undermine democracy.72
The efficacy of these rationales depends on the Rajya Sabha’s distinct representative
character. The Rajya Sabha members will only be able to fulfil their federalism, deliberative
and counter-majoritarian functions if they have the capacity to voice interests and views
different from members in the Lok Sabha. While this capacity depends on India’s
constitutional design, it also heavily relies on the mediating role of political parties. Political
parties seek uniformity of policy between houses in order to reduce political conflict.73
Consequently, members of Parliament from the same political party, irrespective of which
house they join, are less likely to introduce a diversity of opinions that these rationales
assume. It is hence not surprising that the Rajya Sabha’s role has historically depended on
the dynamics of party politics in India. After India’s independence, there was the dominance
of Congress Party, which subsequently gave way to the rise of regional parties and a
stronger opposition.74 This transition may have strengthened the Rajya Sabha’s role in
deliberation and policy formation.75 We are currently in a phase of single party domination
again, with the prominence of the Bhartiya Janata Party at both the central and state levels.
These dynamics put the institutional role of the Rajya Sabha in a bind, since precisely when
its assertion is most needed (in times of a strong executive), it is least likely to embody the
desired capacities.76
The Indian Supreme Court has yet to appreciate all these dimensions of the Rajya Sabha’s
role. This is most evident in the case of Kuldip Nayar (2006),77 which involved territorial
72
John Uhr, ‘Bicameralism’ 481; Louise Tillin, Indian Federalism (OUP 2019) ch 1. For a recent assessment of
the role of the Rajya Sabha in terms of introducing political accountability, see Ronojoy Sen, ‘House Matters:
The BJP, Modi and Parliament’ (2015) 38(4) South Asia: Journal of South Asian Studies 776.
73
Heller and Branduse, ‘The Politics of Bicameralism’ 337
74
See E. Sridharan, ‘The Party System’ in Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford
Companion to Politics in India (OUP 2010) 117, 119-129.
75
Mahendra Prasad Singh, ‘The Decline of the Indian Parliament’ (2015) 14(3) India Review 352, 356.
76
For a critique of the Rajya Sabha’s role in providing a political check on the Executive or the rights of states,
see Pritam Baruah and Nicolas M. Rouleau, ‘Democracy, Representation, and Self-Rule in the Indian
Constitution’ (2011) 44(2) Law and Politics in Africa, Asia and Latin America 177, 193-194.
77
Kuldip Nayar v Union of India, (2006) 7 SCC 1.
15

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qualifications for the upper house. Originally under parliamentary legislation, members of
the Rajya Sabha had to be registered voters in the states or union territories from which
they were elected.78 Parliament removed this requirement in 2003. The petitioners in the
case argued that this removal of the territorial requirement misconstrued and undermined
the Rajya Sabha’s constitutional function, and thus was unconstitutional. Members of the
Rajya Sabha, they argued, were representatives of their particular states and not merely of
the legislatures in those states. This required a relationship - some “link or nexus” - with the
state, without which Rajya Sabha members would not have the adequate “capacity” to
represent the state. While a residence requirement could be one example of this nexus,
Parliament could incorporate others. But some territorial requirement, they insisted, had to
be recognized under the law. The Supreme Court rejected this view of representation and
federalism. The Court recognized the deliberative rationale for the upper house by noting
that the Rajya Sabha was a “revising chamber…improving Bills passed by the Lok Sabha.”79
But it took an arguably cavalier approach towards the implications for federalism. In a
rather confounding passage, the Court noted that in India is not a federal state “in the
traditional sense of the term”, and its “principle of federalism is not territory related.”80
Even if the Rajya Sabha’s federal role were accepted, the Court held that there was no
constitutional requirement that the representatives of the states “must belong to that
State.”81 The Court did not fully consider the range of constitutional purposes that the Rajya
Sabha is expected to serve, and how the norms of representation may impact these
purposes. Most of all, the Court did not evaluate how the actual functioning of the electoral
system, including the role of political parties, may help meet the Rajya Sabha’s purposes, or
undermine them in the longrun.
78
RPA 1951, s 3.
79
Kupdip Nayar para 47.
80
81
16

--DRAFT--
3. Powers and Process
(a) Legislative Process
Bills can be introduced both by the government through ministers, and by members other
than ministers through private bills. India does not have a formal pre-legislative consultation
process.82 Under the current practice, relevant ministries or departments of the government
formulate legislative proposals, with the expectation of consultation with various interests
and groups. The Ministry of Law and Justice advises on the legalities, and prepares a draft
bill on the lines of the ministry’s or department’s office memorandum delineating the
details of the proposed bill. A note that includes the draft bill, views of concerned ministries,
and implications of the proposed legislation, is then sent for the cabinet’s approval. After
incorporating revisions, the relevant ministry compiles a statement of objects and reasons,
notes on clauses, financial memorandum on expenditures involved, and a memorandum on
delegated legislation. In some cases, the prior sanction of the President is needed, before
finally forwarding the particulars of the bill to the Ministry of Parliamentary Affairs in order
to be introduced in the legislative programme.
Ordinary bills can be introduced in either house, but money bills, based on the
determination of the presiding officer, can only be introduced in the Lok Sabha. Bills pass
through three stages of the legislative process. During the first reading, the member-in-
charge of the bill asks for leave to introduce the bill in the house, or the bill is tabled if it has
been passed by the other house. If the motion for leave passes, the bill is formally
introduced in the house. In cases of opposition, the presiding officer may initiate a
discussion, followed by a vote in the house. After the introduction of the bill and its
publication in the gazette, the presiding officer may refer it to the Departmentally Related
Standing Committees, who are expected to present their reports to Parliament in
subsequent sessions. The minister concerned may, with reasons, request the presiding
82
For a critique, see Tarunabh Khaitan, ‘Reforming the Pre-legislative Process’ (2011) 46(25) Economic and
Political Weekly 27-30; Dipika Jain, ‘Law-Making by and for the People: A Case for Pre-legislative Processes in
India’ (2020) 41(2) Statute Law Review 189.
17

--DRAFT--
officer of the house to not refer the bill to the Standing Committee in urgent cases. During
the second reading, the house conducts a general discussion on the bill, and may refer it to
a Select Committee of the house, a Joint Committee of both the houses, or invite opinions
on its contents. The committees are expected to conduct detailed discussions on the bill,
invite opinions of the public and experts, consider amendments, and finally submit a report
to the house. During the second reading, the house considers the report of the committee,
or in the absence of a reference to committees, directly deliberates on each clause. The
house votes on amendments to each clause, schedules, long title and other components,
which become part of the final bill. In the third reading, the house considers the bill as a
whole, followed by a final vote.
In the case of an ordinary bill, both the houses should pass it with a majority of its members
present and voting. In the case of a bill amending the Constitution, a majority of not less
than two-thirds of members present and voting is required. Subject to parliamentary law,
the quorum is set at one-tenth of the membership of the house.83 Once this is done,
Parliament sends the Bill to the President for his assent. In case the President withholds
assent, they can send the Bill back to the houses for reconsideration. This procedure does
not apply to money bills. The President may attach a message, indicating their
recommendations and reasons. But if the houses pass the Bill again, with or without
amendments, the President is bound to assent.84
(b) Legislative Powers
Legislatures are bound by procedural and substantive constraints under the Constitution.
These include fundamental rights under Part III of the Constitution. Laws that violate
fundamental rights are void to the extent of inconsistency. All persons have the right to
approach the Supreme Court in cases of violations, and courts has wide powers to issues
writs, orders and directions for their enforcement.85
83
84
85
Constitution of India, arts 32, 226, 142.
18

--DRAFT--
The Constitution also federally divides legislative powers between the center and the
states.86 This scheme extends the pre-indepedence model under the Government of India
Act 1935, which was innovative compared to the existing Australian and Canadian federal
systems. Unlike those systems, which provided one list of subjects for one legislature
(federal or provincial) and left the residuary subjects to the other, the 1935 Act sought to be
as exhaustive as possible by providing three lists. The Indian Constitution similarly divides
legislative capacity between Parliament and state legislatures by providing three extensive
lists of subjects under the Seventh Schedule. Parliament is authorized to legislate on the
subjects under Union List or List I, state legislatures under the State List or List II, and both
on the Concurrent List or List III.87 The residuary power over unenumerated subjects lies
with the Union.88 Parliament also enjoys the legislative capacity to implement an
international treaty even if it may relate to subjects in List II.89 The scheme of the lists makes
it clear that subjects like defence, foreign affairs, citizenship, and inter-state trade, which
have a national character, have been allotted to the Union. Subjects like public order,
policing and agriculture, which are better governed locally, have been allotted to the states.
Subjects of common concern, like criminal law and family law, electricity and the press, have
been placed in the Concurrent List.
The purpose behind the extensive listing was to minimize conflicts over legislative division.
Conflicts have nonetheless arisen often, partly due to the nature of subject-wise division.
Numerous entries appear to overlap or to draw discreet lines between subject areas. Many
entries also explicitly refer to each other. This has required courts to evolve legal doctrines
to resolve conflicts. The judicial strategy has generally been to minimize the appearance of
legislative conflict by interpreting the entries - under which a legislature claims to be
legislating - as broadly as feasible. The courts have also interpreted the Constitution to allow
legislatures to make laws on their permitted subject matter, even if the law’s contents may
permeate into impermissible entries in other lists. According to the doctrine of pith and
substance, a legislation would continue to be valid if it is, in its essense and character,
86
87
Constitution of India, Seventh Schedule.
88
89
19

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related to a permitted entry, even if it may incidentially encroach upon others. The doctrine
corresponds with the standard common law understanding that courts should ordinarily
desist from invalidating legislation. The doctrine also makes law-making workable, because
a strict interpretation of competing entries would make it exceedingly difficult for
legislatures to design regulation.
The judiciary, though, has faced criticism on some aspects of its doctrine. The Constitution
incorporates the concept of repugnancy, according to which parliamentary law would
prevail over any inconsistent provision of state law.90 Such inconsistencies may arise when
Parliament makes a law (under an entry in Lists I or III) that conflicts with a state law
properly made under an entry in Lists II or III. Despite the inconsistency, an inconsistent
state law under an entry in the Concurrent List can prevail in the state if it receives the
assent of the President.91 The Supreme Court has limited the scope of the repugnancy
clause only to cases where the conflicting laws are on the same entry in the Concurrent
List.92 In cases involving conflicting Union and state laws, where both are within the
competence of the respective legislatures, the Supreme Court has held that both laws
would remain valid. Evidently, the Court’s position favours upholding more laws, but it is
unhelpful in a practical sense. The doctrine of repugnancy is meant to remove conflicting
guidance for courts that are faced with contradictory laws. By narrowly interpreting the
doctrine, the Court has retained the possibility of inconsistencies arising between federal
and state laws.93
The Constitution provides three instances when the scheme of federal division of legislative
powers can be deviated from, to allow the Union to legislate on List II subjects. The Rajya
Sabha can authorize Parliament to legislate on a matter outside its jurisdiction, if it declares
that it is necessary or expedient in the national interest by means of a resolution passed by
two-thirds of its members present and voting.94 Such an authorization is valid for one year
90
91
92
See VK Sharma v Union Of India, (2000) 9 SCC 449.
93
See V Niranjan, ‘Legislative Competence: The Union and the States’ in Sujit Choudhry, Madhav Khosla and
Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 466.
94
20

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and may be extended by the Rajya Sabha for one more year. The second instance is if at
least two-thirds of state legislatures pass a resolution authorizing Parliament to regulate a
matter ordinarily within the legislative capacity of states.95 In such a situation, Parliament
can make laws on the matter for those states, as well as any additional states if they
subsequently pass a similar resolution. The third instance relates to emergencies.
Parliament can legislate on the State List if the Executive has proclaimed a national
emergency under constitutional procedures.96 Any law that Parliament enacts in this
circumstance will cease to have effect, to the extent of Parliament’s ordinary legislative
incompetence, six months after the proclamation expires.97 State legislatures can continue
to make laws on the matters in which they are competent, but the Union law would
override state laws to the extent of repugnancy.98 Parliament can also acquire state
legislative powers in case the central executive invokes its powers of President’s rule. Under
the Constitution, if the central government is satisfied that there has been a breakdown of
constitutional machinery in a state, it can through a proclamation decide to assume the
powers of the state executive.99 The government can also, through a declaration, authorize
Parliament to exercise the powers of the state legislature.100 The Constitution requires such
proclamations to be laid before Parliament for its approval, after which the proclamation
remains valid for six months.101 Parliament can extend the life of the proclamation for
additional six-month periods, but it cannot exceed three years in total.102
Parliament also has the power to amend the Constitution. A bill amending the Constitution
requires a majority of not less than two-thirds of members of each house present and
voting.103 The Constitution provides additional constraints for amending provisions related
95
96
97
98
99
100
Constitution of India, art 356(1)(b).
101
102
Constitution of India, art 356 (4).
103
21

--DRAFT--
to the election of the President, powers of the Executive, the judiciary, federal distribution
of legislative powers, representation of states in Parliament, and the amendment process.
In these instances, the amending bill requires a ratification by at least half of the states. The
amending power has historically been a matter of significant constitutional controversy,
leading to heightened inter-institutional tension between Parliament and the Supreme
Court. This controversy culminated in the Court laying down the doctrine of basic structure
in the case of Kesavananda Bharati (1973), according to which Parliament could not alter
the basic and essential features of the Indian Constitution.104 In Kesavananda Bharati and
subsequent cases, the Court has held that values like democratic and republican form of
government, the rule of law, equality, federalism and secularism are unamendable basic
features of the Constitution.
(b) Bicameral Division of Legislative Powers
Apart from the federal division between Parliament and state legislatures, there are also
some distinctions between the legislative powers of the upper and lower houses of
Parliament. On almost all counts, the two houses have identical powers.
For a bill to be passed as legislation, it needs to be passed by both houses.105 If there is

disagreement between the two houses, the Constitution mandates that the President call
for a joint sitting of the two houses to vote together.106 The bill will be deemed to have
passed if it gets the support of the majority of the sitting members. Joint sittings are rare,
having been called only three times since the inception of Parliament. On all these
occasions, the Lok Sabha’s opinion has prevailed. There may be significant political
disincentives, however, for pressing ahead with the Lok Sabha’s opinion through this route.
The government of the day may not want to raise the political stakes of disagreement by
resorting to this procedure, and may also not want to display the brute strength of political
majorities against the views of the states represented in the Rajya Sabha.
104
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225. For an in-depth study of the doctrine, see Sudhir
Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (OUP 2010).
105
106
22

--DRAFT--
The Lok Sabha has decisive primacy with respect to money bills. Bills are deemed to be
money bills if they only contain provisions related to financial matters like taxation, financial
obligations of the Indian government, and the Consolidated Fund of India, or any matter
incidental to these subjects.107 The Constituiton leaves the determination of whether a bill
qualifies as a money bill to the Speaker.108 Money bills can only be introduced in the Lok
Sabha,109 and cannot be introduced without the recommendation of the President and thus
the support of the government.110 The Rajya Sabha is only allowed to give recommendations
within a stipulated period and those recommendations may or may not be accepted by the
Lok Sabha.111
Money bills have recently been a subject of constitutional controversy. One issue is whether
the certification of a bill as a money bill by the Speaker is justiciable. The constitutional text
may imply that it is not. It reads, “[i]f any question arises whether a Bill is a Money Bill or
not, the decision of the Speaker of the House of the People thereon shall be final.”112 This
follows a general tendency under the Indian Constitution, following many aspects of British
constitionalism, that leaves “irregularity of procedure” arising from intra-parliamentary
decisions out of the judicial realm.113 The history of the Constitution’s incorporation of the
money bill procedure, however, may imply the opposite. The money bill exception owes its
origins to British constitutional practice. After centuries of contention between the House of
Commons and the House of Lords regarding the control over legislation on taxation and
expenditure, the British Parliament passed the Parliament Act, 1911. The Act stated that the
House of Lords could pass a money bill without amendments, initially passed by the House
of Commons. But if it did not do so within a month, the bill would be deemed to have been
passed by Parliament. The Speaker’s certification, under the Act, “shall be conclusive for all
purposes, and shall not be questioned in any court of law.” This constitutional practice,
107
108
109
110
111
112
113
23

--DRAFT--
which is reflected in India’s colonial arrangement to some extent, came to influence the
constitutional drafting process. Nevertheless, the Indian Constitution did not adopt the
same language as the 1911 Act. Regarding the Speaker’s decision to classifying a bill as
money bill, the Constitution only used the word “final” and did not explicitly exclude judicial
review. This would imply that the Indian Constitution, unlike the British parliamentary
procedure, did not leave this issue outside the determination of courts.
If this issue is justiciable, the second question is how courts should interpret the boundaries
of a money bill. Specifically, can a putative money bill include provisions outside the matters
mentioned in the constitutional provisions? There is some textual conflict to resolve here.
The constitutional text states that a bill would be a money bill “if it contains only provisions
dealing with all or any” of the enumerated matters, suggesting that a stricter interpretation
is more suitable. But it also states that a money bill may deal with “any matter incidental to
any of the matters specified” in the enumeration, which appears to lead to the opposite
conclusion. This is not merely a legalistic matter. The classification of a bill as a money bill
has important consequences, since classification as a money bill substantially lessens the
deliberative role of the Rajya Sabha.
The Supreme Court has not successfully resolved this question as of 2021. In the KS
Puttaswamy (2018), in which the Court dealt with the constitutionality of the national
identity programme, the justices split on this question. While the majority held that judicial
review would be permitted “under certain circumstances”,114 it did not clearly lay down
what those circumstances, or the applicable standard of review, would be. It held that a bill
would continue to be a money bill if its dominant purpose related to the enumerated
matters, even though it may touch upon other matters.115 In his dissenting opinion,
Chandrachud J drew from the history of the money bill provisions to hold that the Speaker’s
certification was subject to judicial review. He also interpreted the text strictly to hold that a
money bill cannot include matters outside those enumerated in the Constitution. At most,
they may include matters incidental to the enumerated matters. These questions came up
114
KS Puttaswamy (AADHAAR) v. Union of India, (2019) 1 SCC 1, para 464.
115
For a critique based on the value of democracy, see Malavika Prasad and Gaurav Mukherjee,
‘Reinvigorating Bicameralism in India’ (2020) 3(2) University of Oxford Human Rights Hub J 96.
24

--DRAFT--
again in Rojer Mathew (2019), where the Court recognized the ambiguities in the majority
judgments of Puttaswamy, and recommended that these questions be referred to a larger
bench to clarify with finality.116 But in an order in January 2021, four judges on a five-judge
bench of the Supreme Court refused to refer the matter to a larger bench, with
Chandrachud J dissenting again.117
(d) Parliamentary Privileges
Drawing from the Westminster system, Indian legislatures also enjoy legislative privileges. In
order to fulfil their responsibilities without political interference, legislators are protected
against interference or pressure from the Executive, as well as courts and non-state entities.
The content and scope of privileges has been a subject of considerable controversy, owing
to textual ambiguities and the existence of enumerated fundamental rights. The key
question has been whether and to what extent the exercise of privileges is subject to judicial
review. One view supports a strict seperation of powers, while the other favours a degree of
justiciability when the exercise encumbers rights like speech and personal liberty.
In the early case of MSM Sharma (1959), the Supreme Court had to address this tension
between privileges and fundamental rights.118 The case involved a privilege notice against a
newspaper publisher who published the contents of a legislative assembly debate that had
been critical of the government, but had been expunged by the Speaker from the official
records. The publisher argued that the exercise of legislative privileges and the punishment
against him would violate his freedom of speech and personal liberty. The Court’s majority
held that the legislature had the power to exercise its privileges to restrict reportage of its
proceedings. It accepted that free reportage served the public interest of keeping the
people informed, but it held that the legislature also had a legitimate interest in preventing
inaccurate reporting that may hinder its work. The majority also held that since the
provisions on privileges were special in character, they would override the free speech
rights that were of general applicability. The arguably troublesome implication of the
116
Rojer Mathew v South Indian Bank Limited, (2020) 6 SCC 1.
117
Beghar Foundation v K.S. Puttaswamy, (2021) 3 SCC 1.
118
MSM Sharma v Sri Krishna Sinha, AIR 1959 SC 395.
25

--DRAFT--
decision was that it reversed the ordinary judicial understanding of giving preference to
fundamental rights over other parts of the Constitution.119 It also gave overriding authority
to privileges without requiring a case-to-case assessment of competing interests.
This question of balancing fundamental rights and privileges arose again in 1964 in Keshav
Singh in a rather dramatic chain of events.120 The Uttar Pradesh Legislative Assembly issued
a notice of breach of privileges against Keshav Singh who had criticised a legislator in a
pamphlet. When Keshav Singh allegedly refused to comply, the Speaker issued an arrest
warrant and detained him in a district jail. Subsequently, a two-judge bench of the state’s
High Court heard a habeous corpus petition filed by Keshav Singh’s lawyer and directed his
release. Within days, the Assembly issued another notice, this time not only against Keshav
Singh, but also against his lawyers and the high court judges, requiring them to be produced
before the house in custody. In response, the High Court conducted full court proceedings
and restrained the Assembly until the adjudication of the breach notice was fully conducted.
The Assembly eventually revoked the arrest warrants, but the controversy led the central
government to refer the question to the Supreme Court for an advisory opinion. The
Supreme Court held that the High Court was well within its powers to consider the validity
of the legislature’s actions. It also held that the Assembly was not competent to issue
notices against judges and lawyers because they were not connected with Keshav Singh’s
allegedly contemptuous actions. The Court made a distinction between the British
Parliament’s broad powers of contempt and those applicable in India. It noted that while
the British Parliament exercised numerous powers like resolving election disputes and
disqualifying its members, the Indian Parliament was bound by constitutional provisions
that necessarily entailed judicial interpretation.
In addition to the implications for the rights of non-members, privileges have also been in
tension with the rule of law. In PV Narsimha Rao (1998),121 the police alleged that the Prime
Minister (petitioner) and members of the then ruling Congress Party in 1993 had bribed
119
See Sidharth Chauhan, ‘Legislature: Priviledges and Process’ in Sujit Choudhry, Madhav Khosla and Pratap
Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016) 290, 296.
120
Special Reference No 1of 1964, AIR 1965 SC 745.
121
PV Narsimha Rao v State, (1998) 4 SCC 626.
26

--DRAFT--
some political parties to vote in their favour during a vote of confidence. The police sought
sanction for prosecution that was required under the law. The legislators objected by
arguing that the acts for which the police sought to prosecute them were immune under
legislative privileges. The Supreme Court held that while those who gave bribes could be
prosecuted, the members who had allegedly accepted bribes and voted could not.
According to the majority of the Court, this was because the alleged misconduct was closely
connected to voting inside the legislature and was thus covered by privileges.
The Supreme Court has adopted a wide interpretation of Parliament’s discretion in

penalizing members for violating legislative privileges. In Raja Ram Pal (2007), a television
channel showed eleven members of Parliament accepting money or favours for asking
questions in the houses. The privileges and ethics committees of the houses recommended
expulsion of the members, and the presiding officers acted on this recommendation. The
expelled members challenged this on the ground that Parliament was not competent to go
beyond the legislated disqualifications to expel its members. Since RPA 1951 provided for
the disqualification of members if they are convicted under corruption law, they argued that
judicial determination - rather than parliamentary privileges and process - would be the
appropriate route. The Supreme Court rejected this argument.122 It held that Parliament
could exercise a wide discretion under its privileges powers, including expelling defaulting
members, if such members obstruct legislative processes or bring Parliament into disrepute.
Another recent example of this tenuous balancing is Amrinder Singh (2010), where the
Punjab Assembly moved against a member from the opposition party to expel him for
allegedly improper land dealings while he was serving as the Chief Minister. The Supreme
Court held that the House was not authorised to do this and restored his membership.123 It
held that a legislature cannot use its power of privileges to address acts allegedly committed
in a previous term. This, according to the Court, did not “threaten the discharge of
legislative functions during the current term.” Here, the Court struck a desireable balance as
it attempted to circumvent the possibility of legislative majorities using privileges as a
means of political vendetta.
122
Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184.
123
Amarinder Singh v Punjab Vidhan Sabha, (2010) 6 SCC 113
27

--DRAFT--
4. Executive Accountability
(a) Deliberative Process
Based on the Westminster model, India’s parliamentary system is prone to executive

dominance. The Executive enjoys concentration of power once a party attains majority in
the lower house. This makes the parliamentary deliberative process, especially the ability of
the opposition members to bring public attention to government policies, crucial for holding
the Executive accountable.
Under the Constitution, legislatures are free to determine their own procedures.124
Legislatures do not have a fixed calendar for deliberation and legislative work, and it is left
to the Executive to summon them. The Constitution only provides that the gap between
sessions should not exceed six months.125 Parliament usually has three sessions in a year,
including a budget session from February to May. Despite calls for introducing a mandated
schedule, or mechanisms through which members can call a sitting, no such process has
been introduced yet. Scholars of the Indian parliamentary practice have been critical of this
gap, and have argued that a lack of a mandatory procedure permits the government to
decide upon fewer sittings to escape parliamentary scrutiny.126
A motion of no-confidence is obligatory if fifty or more members move it. On other

occasions, the Speaker has the discretion to admit discussions. In practice, the Business
Advisory Committee,127 based on an agreement among all parties, decides the issues that
should be debated and the form of the deliberations. This, in effect, gives the government a
veto on the matter. This process has introduced tremendous strain on parliamentary
process. Opposition parties are often convinced that the government is steering away from
debating difficult issues, which incentivises opposition-led disruptions.128
124
125
126
MR Madhavan, ‘Parliament’ in Devesh Kapur, Pratap Bhanu Mehta, and Milan Vaishnav (eds), Rethinking
Public Institutions in India (OUP 2017) 67,75.
127
See infra notes 134-141 and accompanying text.
128
Madhavan, ‘Parliament’ 79.
28

--DRAFT--
A growing number of commentators and scholars have argued that India’s Parliament has
“declined” in terms of its performance and calibre.129 According to this thesis, the institution
has not transacted business in an orderly fashion due to regular disruptions. For instance,
the legislative process scholar, MR Madhavan, analysed Parliament’s functioning under the
metrics of frequency of meetings and the time lost due to disruptions.130 He found that from
the 1950s to the 1990s, the number of working days had reduced from 127 to 71 days. He
also found that the time lost due to disruptions had increased from 1962 to 2015. All this,
he claims, has resulted in less time being devoted to deliberation and debate over legislative
activity. One casualty has been the parliamentary function of holding the government
accountable through questions and discussions on the floor of the house. Most of the
questions are answered in written, rather than oral, form. Scholars have recommended
certain revisions in the process, including allowing opposition parties control over the
agenda of discussion, as a rule, for a part of the house’s business. Another recommendation
is to require discussion if a minimum number of parliamentarians demand it.
The Indian legislative process also incorporates a committee structure to improve and
diversify the deliberative process. Committees are designed to take an in-depth look at
policies, bills and evidence. Committee systems allow legislators to acquire greater subject-
matter expertise, and mitigate informative gaps and uncertainty of policy outcomes. They
also resolve scaricity of legislative time, and allow individual legislators to influence policy.
Committees are composed of members from across the aisle and from both houses. Since
they conduct proceedings in private,131 they can be expected to provide a space for
members to deliberate and cooperate in a bipartisan manner.132 Moreover, strong
129
BL Shankar and Valerian Rodrigues. The Indian Parliament: A Democracy at Work (OUP 2014) 3-6;
Mahendra Prasad Singh, ‘The Decline of the Indian Parliament’ (2015) 14(3) India Review 352, 361-371
(discussing the factors causing the decline of the institution, including the erosion of the deliberative process
and accountability performance of Parliament, and a rise in the criminalization of politics); Devesh Kapur and
Pratap Bhanu Mehta, The Indian Parliament as an Institution of Accountability (United Nations Research
Institute for Social Development 2006) 29 (suggesting that Indian Parliament may have become
“dysfunctional” in many respects).
130
Madhavan, ‘Parliament’ 73-74.
131
Rules of Procedure and Conduct of Business (15th ed., Lok Sabha Secretariat, 2014), r 266 (Lok Sabha Rules).
132
Wolfgang C. Müller and Ulrich Sieberer, ‘Procedure and Rules in Legislatures’ in Shane Martin, Thomas
Saalfeld and Kaare W. Strøm (eds), The Oxford Handbook of Legislative Studies (OUP 2014) 311, 325
29

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committee systems are “associated with opposition influence,”133 because they give
opposition parties institutional space to contribute to policy-formation. Opposition parties
in India have often demanded constitution of committees to bring attention to what they
consider to be executive misdemeanors.
There are various categories of committees under the legislature’s rules. Parliamentary
rules provide for the constitution, functions and procedures of certain permanent standing
committees. These include the Business Advisory Committee (to recommend the allocation
of Parliament’s time for legislative business),134 Committee on Public Accounts (to assess if
the government’s expenditures conform to parliamentary sanction),135 and the Committee
of Priviledges (determination and recommendation in relation to breaches of legislative
privileges).136 Since 1993, parliamentary procedure also provides for standing committees
that deal with the budget and activities of specific government departments.137 These
Departmentally Related Standing Committees are composed of members of both houses,
provided they are not ministers, with one-year tenures. The procedure also provides for the
creation of Select Committees for the consideration of specific bills.138 The procedure also
permits the creation of Joint Parliamentary Committees, which are ad hoc committees for a
specific purpose, if one house passes a motion and the other house subsequently agrees.
Literature shows a relationship between committee systems and political control. Political
parties seek to control members through committees,139 and coalition partners exercise
oversight over government policy.140 Scholars have also noted a correlation between the
strength of committee systems, and the ways through which legislators build their electoral
133
Shane Martin, ‘Committees’ in Shane Martin, Thomas Saalfeld and Kaare W. Strøm (eds), The Oxford
Handbook of Legislative Studies (OUP 2014) 352, 364.
134
Lok Sabha Rules, r 287.
135
136
137
Lok Sabha Rules, r 331E. For a history and background of India’s committee system, see Arthur G. Rubinoff,
‘India’s New Subject-based Parliamentary Standing Committees’ (1996) 36(7) Asian Survey 723.
138
139
Shane Martin, ‘Committees’ 358
140
30

--DRAFT--
constituencies. Political systems where legislators seek votes through extra-legislative

service tend to have weaker committee systems.141 Political systems that are dominated by
political parties – for instance, where the political fates of legislators depend on the
membership in their parties – tend to have weaker committee systems. In these cases,
legislators are more likely to invest time within party structures, as opposed to legislative
committees as spaces of policy formation.142 These factors have relevance to India’s
committee system, but more research is needed in this area.This includes studies on the
incentives (or disincentives) of legislators to join and strengthen the committees, the impact
of other institutions (like political parties) on the efficacy of the system, and the reforms
that may be needed in legislative organization.
(b) Emergency
An important area of Parliament’s accountability function and control over the Executive is
during national emergencies. The Indian Constitition provides that the central executive can
declare a national or regional emergency when the security of the country is threatened by
war, external aggression, or armed rebellion.143 As in many other jurisdictions, a state of
emergency limits the rights of citizens, including the right of judicial remedies.144 The
Executive’s misuse of its emergency powers has been an important part of India’s post-
independence history. The most egregious example was when Prime Minister Indira Gandhi
imposed a 21-month long national emergency from 1975 to 1977. In light of the serious
violations of rights and the failure of the courts to address them, Parliament amended the
Constitution’s emergency provisions by immunizing certain rights even during the
emergency, and strengthening the oversight role of Parliament. After the amendment, the
141
142
Eduardo Alemán , ‘Legislative Organization and Outcomes’ in Jennifer Gandhi and Rubén Ruiz-Rufino (eds),
Routledge Handbook of Comparative Political Institutions (Routledge 2015) 145, 149.
143
144
31

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Executive is expected to lay the emergency proclamation before each house, which, unless
approved by the majority of each house, will cease to operate after one month.145 Once
approved, the emergency can operate for a period six months and Parliament has the
power to extend it another six months. There are two additional ways in which Parliament
can hold the Executive accountable in the context of emergency. First, it has the power to
revoke the emergency if it passes a resolution disapproving it.146 Second, one-tenth of the
members of the Lok Sabha can request the Speaker or the President to convene a special
sitting of the house to move a resolution of disapproval.147
(c) Executive Ordinances
One of the striking features of the Indian law-making scheme is the incorporation of wide
legislative powers in the Executive. The legislature under the Westminster system is
expected to perform the democratically accountable legislative function. The Indian
Constitution permits a diversion from this ideal, by empowering the central and state
executive to promulgate ordinances with the same legal force as ordinary legislation. The
ordinance-making power is conditional. The Executive can promulgate ordinances only
when the legislature is not in session, and urgent conditions exist that warrant “immediate
action.”148 The Executive is required to lay ordinances before the reconvened legislature.
The legislature can pass a resolution disapproving an ordinance. If not withdrawn by the
Executive, an ordinance lapses in six weeks after the reassembly of the legislature. In view
of these conditions, promulgating ordinances is supposed to be an exceptional, even an
emergency-like or extraordinary power, and subject to ostensibly strong legislative
oversight. The Executive is expected to resort to it in urgent circumstances when there is a
need for legislation.
145
146
147
148
32

--DRAFT--
Years Number of promulgated

central ordinances149
1952-1959 57
1960-1969 67
1970-1979 133
1980-1989 84
1990-1999 196
2000-2009 72
2010-2019 78
2020-2021 26
(until 30-09-2021)
But legislative practice over the last seven decades suggests that the Executive has not so
confined its use of the ordinance power. First, the large number of ordinances since
independence suggests that the Executive has not limited its law-making powers to
exceptional circumstances. These ordinances do not mention the circumstances that justify
the constitutional expectation of urgency or immediacy.150 Ordinances cover a range of
substantive areas, not just those that may be ordinarily associated with urgency or
149
Calculated by the author, based upon the data in Statistical Handbook 2019 (Ministry of Parliamentary
Affairs, Government of India, 2019) 55 <https://mpa.gov.in/publication/statistical-hand-book> accessed 1
October 2021; List of Central Ordinances (High Court of Tripura, Agartala)
<https://thc.nic.in/ordincenindex.html> accessed 1 October 2021.
150
Shubhankar Dam, ‘Constitutional Fiat: Presidential Legislation in India's Parliamentary Democracy’ (2010)
24 Columbia Journal of Asian Law 1, 9.
33

--DRAFT--
immediacy. In 2020, the central government promulgated 14 ordinances,151 which were not
limited to urgent matters (say, related to health during the covid pandemic), but also
included ordinances on salaries and allowances for members of Parliament, commercial
matters like insolvency, bankruptcy and banking, and even politically controversial issues
like agricultural reform. This substantiates the view, held by commentators and scholars,
that the Executive has misused the ordinance-making power to legislate on issues in which
it did not command support in the legislature.152 Second, while ordinances are meant to
have short life span, the Executive has found ways to keep them alive for long periods by
repromulgating them, often without even tabling them before the legislature. This
background has made the promulgation of ordinances increasingly politically controversial.
Critics have argued that governments have attempted to circumvent constitutionally-
mandated accountability processes by pushing through controversial legislation via
ordinances.
The legality of ordinances remains ambiguous. The questions before the courts have been
whether, and to what extent, the Executive’s ordinance-making power is justiciable. If it is
justificiable, what should be the standard of judicial review and the appropriate legal test?
The initial Supreme Court judgments on the subject, including AK Roy (1982), made it clear
that the ordinance-making power was very much an “exercise of legislative power” and not
executive power.153 Ordinances, thus, were as much “law” as ordinary legislation. The Court
was also evidently less sympathetic to the claim that the ordinance-making power should be
narrowly interpreted because it was in tension with democratic governance. In one case, it
noted that ordinances “may appear to be undemocratic but it is not so, because the
executive is clearly answerable to the legislature”, and that ordinances are for a “necessary
purpose” and “hedged in by limitations and conditions.”154 The Court, after recognizing that
151
See Ordinances, 2020 (Legislative Department, Ministry of Law and Justice, Government of India)
<https://legislative.gov.in/sites/default/files/legislative_references/ORDINANCES%202020%20%2820.11.2020
%29.pdf> accessed 1 October 2021. This data is until 20.11.2020.
152
Dam, ‘Constitutional Fiat’.
153
AK Roy v Union of India, (1982) 1 SCC 271, para 14.
154
RK Garg v Union of India, (1981) 4 SCC 675, para 4.
34

--DRAFT--
ordinances were based on the Executive’s legislative power, was reluctant to subject
Executive discretion - in relation to immediacy and urgency - to judicial review.155
This reluctance, though, has significantly faded since. The first indication of this was in DC
Wadhwa (1986), where the Supreme Court dealt with the legality of repromulgated
ordinances. The state government of Bihar had promulgated 256 ordinances between 1967
and 1981, and in some instances had kept them alive for 14 years. In some cases, it had
repromulgated the same ordinances as many as 39 times. The Court distinguished the
question of repromulgation from the Executive’s satisfaction that an ordinance, in the first
instance, was needed. Describing such mechanical repromulgations as colourable and a
“fraud on the constitutional provision,”156 the Court held them to be unconstitutional.
More recently, the Supreme Court has adopted a more expansive approach to justiciability
and its authority in shaping remedies. In KK Singh (2017),157 the question before the Court
was whether it could invalidate the first promulgation (and not merely subsequent
repromulgations) of an ordinance, if the Executive failed to place it before the legislature?
And if so, what would be the effect of this invalidation on the actions taken under such an
ordinance? The Court, first, held that the Executive’s power to promulgate ordinances, even
in the first instance, was subject to judicial review. Courts could evaluate whether the
Executive’s satisfaction of the conditions was based on “some relevant material”, or
whether it was “actuated by an oblique motive.”158 The Court did not need to apply this test
in the case and hence future adjudication will reveal how it is interpreted in concrete cases.
Second, KK Singh held that while ordinances were legislative in character, their validity
depended on fulfilling both prior and subsequent conditions. Placing ordinances before the
legislature, in the future, would be a mandatory constitutional requirement for the
conditional validity of ordinances. Failure to meet this condition would amount to an abuse
of constitutional process and the ordinance in question would cease to operate. Third,
155
See Dam, ‘Constitutional Fiat’ 49-51.
156
DC Wadhwa v State of Bihar, (1987) 1 SCC 378, para 7.
157
Krishna Kumar Singh v State of Bihar, (2017) 3 SCC 1 (KK Singh).
158
KK Singh, para 105.13.
35

--DRAFT--
rights, privileges, obligations, and liabilities under such failed ordinances may nevertheless
survive if this serves the tests of public interest and constitutional necessity.
5. Political Parties
Despite the centrality of political parties in the Indian parliamentary practice, the
constitutional framers did not recognize or regulate them.159 The beginnings of legal
regulation of political parties can be found in election law. The ECI introduced mechanisms
for the allotment of party symbols provisionally during the first election after independence
(1951-1952) and then more formally through an order in 1968.160 Subsequently, Parliament
introduced procedures for the recognition of political parties under the RPA 1951.161
An important step in the regulation of political parties, with important implications for
parliamentary practice, was the introduction of the Tenth Schedule into the Constitution
through a constitutional amendment in 1985.162 The schedule provides for the
disqualification of members who either give up membership in their political party or vote
contrary to party instructions.163 The schedule exempts cases of merger, where at least two-
thirds of the members of a political party either join another party, or form a new party.164
The schedule, as expected, was controversial and raised fundamental questions about the
character of representation in India’s parliamentary democracy. Among the key questions
was whether the schedule, by inhibiting the freedom of members to not only change parties
but also potentially to vote according to their conscience, violated a fundamental tenet of
parliamentary democracy. The introduction of the schedule was defended on the ground
that there were severe concerns about individual members altering their political loyalties,
often due to temptations of office or money. The supporters argued that shifting party
loyalties was a corrupt practice that undermined democracy. Should members be free to
159
Aradhya Sethia, ‘Where’s the Party?: Towards a Constitutional Biography of Political Parties’ (2019) 3 Indian
LR 1.
160
Bhat, ‘Governing Democracy Outside the Law’.
161
RPA 1951, part IVA.
162
The Constitution (Fifty-second Amendment) Act, 1985.
163
Constitution of India, Tenth Schedule, para 2.
164
Constitution of India, Tenth Schedule, para 3.
36

--DRAFT--
deviate from party lines if they considered it in the best interests of their constituents? Or
should their role as representatives of their constituents be understood firmly within their
party identity? The Supreme Court in Kihoto Holohan (1992) was asked to decide these
questions, and to assess whether the constitutional amendment violated the basic structure
doctrine.165
The petitioners argued that while unprincipled defections are a problem, the amendment
went beyond acceptable limits by constraining freedom of speech, dissent and conscience
of the members.166 The Court’s majority also framed the issue as concerning the balance
between the need to address “unethical and unprincipled changes of political
affiliations”,167 and the freedom of speech and other prerogatives and privileges of
members.168 Regarding this tension, it sided with the need to preserve the integrity of the
party system. It noted that defections undermined the stability and utility of parties, as well
as public trust in them. For the Court, this required that members should be bound by party
decisions. But this dichotomy missed an equally pressing tension between members as
agents of political parties and members as representatives of their constituents. The Court
did not consider that there could be occasions when a member’s representative capacity
towards their constituents may be in tension with their political party’s instructions. The
most obvious example would be if the political party diverted from the party manifesto that
had been the basis for the constituents to vote for the member. The Court also did not
consider the serious democratic deficit within political parties. This oversight made the
Court’s assumption that political parties were the primary vehicle of popular representation
less persuasive. The Court interpreted India’s parliamentary democracy as essentially being
constituted by political parties, who were the representatives of the electorate.
165
Kihoto Hollohan v Zachillu, (1992) Supp (2) SCC 651.
166
Kihoto Hollohan, para 30.
167
Kihoto Hollohan, para 38.
168
Kihoto Hollohan, para 39-40.
37

--DRAFT--
6. Conclusion
This chapter sought to offer a broad overview of the key structural and procedural features
of India’s legislative scheme. India’s central and state legislatures, in terms of their formal
powers under the Constitution, are formidable institutions. Beyond their law-making
powers, they can also hold the Executive accountable, while performing a range of
regulatory functions of political consequence inside and outside the houses. But as the
chapter points out, the legislatures’ performance over time has led to serious concerns
about their institutional health. While legal norms have some gravitational pull, the well-
being of the parliamentary institutions is often a function of the precarious dynamics of
political power. Moreover, these political dynamics are also relevant for how legal norms
themselves are interpreted over time. They set the stage and constitute how institutions set
boundaries for each other and for themselves. The debates on representation and
justiciability, which consistently came up during the course of the chapter, are a reflection
of this relationship between the legal and political practices of the legislature.
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--DRAFT--

The Parliament and State Legislatures of India

- M Mohsin Alam Bhat*

* Jindal Global Law School, O.P. Jindal Global University (India).

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legislature’s role in maintaining executive accountability. It discusses the deliberative

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(b) Basis of Representation

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(c) Parliamentary Offices

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(a) Electoral Process

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(b) Qualifications and Disqualifications

The Constitution specifies qualifications for members of Parliament. A parliamentarian must

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Parliament has specified further disqualifications in addition to the constitutionally listed

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(c) Bicameralism and Composition of the Upper House

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3. Powers and Process

(a) Legislative Process

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(b) Legislative Powers

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(b) Bicameral Division of Legislative Powers

For a bill to be passed as legislation, it needs to be passed by both houses.105 If there is

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(d) Parliamentary Privileges

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The Supreme Court has adopted a wide interpretation of Parliament’s discretion in

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(a) Deliberative Process

Based on the Westminster model, India’s parliamentary system is prone to executive

A motion of no-confidence is obligatory if fifty or more members move it. On other

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constituencies. Political systems where legislators seek votes through extra-legislative

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(c) Executive Ordinances

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Years Number of promulgated

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