Constitutional Law-1

Union and State Legislature

Highlights
• Disqualifications for member
 Parliament Of India

Council of
House of people/ Lok
States/Rajya Sabha
Sabha

Not More that 250

members Not more than 552 members

Not more than 238 2 nominated members

Not More than
representatives from states from Anglo Indian
530 elected
and UT’s & community and not
Representatives
12 members nominated by more that 20 members
of People
president from UT’S
Disqualifications for member

Ground of Disqualification of Members

Of Parliament and State Legislature

Constitutional Statutory
Disqualifications Disqualification
Constitutional Disqualification
a) Office of
e)Disqualified profit
by or under
Law

Art 102(1) & Art

191(1)
b)Unsound
Mind

d)Not a citizen of c)Undischarged

India Insolvent
Art 102(1)(a)
Office of profit
Person held an
Office other than office
office declared by
parliament not to
disqualify
Things to be proved
for disqualification

Office under state There was Profit

or Central attached to office
government
Profit
• Office capable of yielding profit
• Actual Making of profit is not necessary.
• Amount of money received by a person in
connection with the office may be material in
deciding whether office really carried any profit.
• Compensatory allowance paid to the holder of
the office are not profit if intended to meet- out-
of – pocket expenses
Case Laws
• Jaya Bachan v. Union of India, AIR 2006 SC
2119( UP Film development council-
Chairperson)
Court held that ‘ where the office carries with it
certain emoluments then it will be an office of
profit even if the holder of office not to receive/
draw emolument.
• Manphul Singh v. Surinder Singh, AIR 1975 SC
502. ( wage board case)
Under Government
• Court has laid down following five tests to
determine if an office is held under government.
1. Whether government makes appointment to
the office
2. Whether the government has right to remove
or dismiss the holder of office
3. Whether government pays the remuneration
4. Whether the functions performed by holder is
government functions
5. Does the government exercise control over the
performance of those functions
Case Laws
• Guru Gobind Basu v. Sankari Prasad Ghosal,
AIR 1964 SC 254
• Shibu Soren v. Dayanand Sahay, AIR 2001 SC
2583( Jharkhant Area Autonomous Council-
chairman)
Decision on disqualification

MLA’S
MP’S

Art 103 (1)- When question as Art 192(1) –When question as to

to disqualification under Art the disqualification of state
102(1) arises, question is legislature arises question is
referred to President and who referred to the Governor and who
in turn takes advice from in turn takes advice from election
Election commission of India  commission
Case laws
• Election Commission v. Saka Venkata Rao, AIR
1953 SC 210
Supreme court held that Art 192(1) and 103(1) go
together and provide a remedy when a member
incurs a disqualification after he is elected as a
member.
• Brundanban Nayak v. Election Commission, AIR
1965 SC 210
Supreme court held that decision of election
commission is ‘ in substance decisive’
 Statutory Disqualification-

Representation of the people Act 1951

Conviction of offences
Convicted for Offences
resulting in
under IPC,1860
imprisonment for 2 or
more years other than
offences mentioned • Sec 153A- Promoting enmity between different
here( 6years groups
disqualification) • Sec 171E- offence of bribery
• Offences relating to rape- Sec 376
• Sec 505- Making statements creating and
promoting enmity between different groups in
any places of religious worship
(fine, 6 months conviction enough for 6 years
disqualification)
 Representation of the people Act 1951

•Protection of Civil rights

Act,1955 Corrupt
•Sati prevention Act, 1987 Practices at
election
•Customs Act, 1962
• Prevention of Insults to
National Honour Act, 1971 •Failure to lodge an
• Prevention of Corruption Act, account of election
1988 expenses
•Prevention of Terrorism Act, •Being managing agent,
2002 manager or secretary in
•Dowry Prohibition Act, 1961 which government has
•Law relating to the not less that 25% share
adulteration of food or drugs •Dismissal from
(fine, 6 months conviction government service for
enough for 6 years corruption or disloyalty
disqualification) to state
Defection
Disqualification on Grounds of defection
• Art 102(2) and 191(2)- Any person shall be
disqualified for being a MLA or MP if he is so
disqualified under Tenth schedule.
• Tenth Schedule- introduced by 52nd amendment
Act, 1985.
• Floor crossing by a member of one party to
another party.
What is defection
• Applies to both parliament and state assemblies
• Legislator voluntarily gives up the membership of
the party.
• Disobeys the directives of party leadership on a
Vote.
• Defection by 1/3rd of elected member of a party will
result in merger( 52nd Amendment Act,1985)
• Tenth schedule (amended in 2003) 2/3rd elected
members must favour for merger in order to avoid
disqualification.
Who makes decision as to Disqualification
• Question as to disqualification shall be referred
for decision of chairman or speaker of the houses.
Case Laws:
• Kihoto Hollohon v. Zachilhu and Others, AIR
1993 SC 412-
Supreme court held that the anti defection law is
valid in all respects expect on the matter
pertaining to judicial review, which was held to be
unconstitutional.
• Ravi Naik v. Union of India, AIR 1994 SC
1558( conduct of part- voluntary giving up)
• Rajendra Singh Rana v. Swami Prasad Maurya
and Others, 2007 (4) SCC 270.( letter to
governor- call leader of opposition)
• Shri Avtar Singh Bhadana v. Shri Kuldeep Singh,
Indian National Congress,(2008)
 Karnataka
(225) July 1st week,2019- 15 ruling
113- for party MLA’s resigned
majority
Inde
3
BJP
104 JD(S) Speaker did not except. Instead
INC
37 disqualified them. Disqualified
80
from contesting re-election

Govt
117+3= So 225-15(Vacant seat)= 210
120 210(105 to prove majority)
Shrimanth Balasaheb Patil v Hon’ble Speaker, Karnataka
Legislative Assembly and others,November 2019

• Court held disqualification of 15 MLA’s by

Speaker valid. But held that once disqualified
they can contest re-elections.
Art 101- Vacation of Seats
• Person elected to Lok Sabha and Rajya Sabha
simultaneously-he can choose, within 10 days
• Person who is already a member of one House
and has contested the election for membership
of the other House.- No option to choose
between houses
• An individual can contest from two
parliamentary constituencies but, if elected from
both, he has to resign one seat within 14 days,
otherwise both will be vacant.
• Members of state legislature who have been
elected to Lok Sabha must resign their seats
within 14 days failing which their seats in Lok
Sabha shall automatically fall vacant
• If member of either house become subject to
disqualification under Art 102(1) seats become
vacant. Same applies to Art 191.
• If a member of either house and state legislature
resigns his seat
• If for a period of 60 days member of parliament
as well as state legislature without permission
absent from house proceedings.
Legislative Procedure

• Bill is a proposal for legislation and it becomes

an Act or law when duly enacted.
• Two kinds of Bill- public and private
Public Bill Private Bill

Introduced in the parliament only by a Introduced by any member other than

minister a minister.

Reflects the policies of Government Reflects the stand of opposition party

on public matters.

Have a greater chance to be approved Have lesser chance of getting

by the parliament approved by parliament

If rejected. Will result in non- If rejected have no implication on

confidence motion. parliamentary confidence.

7 days prior notice for introduction in 1 months prior notice

the house
• Bills can be classified into 4 categories
1. Ordinary Bill
2. Money Bill
3. Financial Bill
4. Constitutional Amendment Bill
Ordinary Bill( Procedures)
Five stages:
1. First Reading
2. Second Reading
3. Third Reading
4. Bill in the second house
5. Assent of the president
First Reading
• Can be introduced in either house
• Member who want to introduce the bill has to ask
for the leave of the house.
• When the house grants leave, the mover of the bill
introduces it by reading its title and objectives.
• No discussion on the bill.
• Later, it is published in gazette of India.
• Before the bill is introduced, if it is published in
gazette, need not ask for leave of the house.
Second Reading
• General discussion-:
 printed copies give
 principles and provisions discussed generally
not in detail.
• House may take the bill into consideration
immediately or fix another date( Here members
can bring amendment any)
• House may refer the bill to; Select committee,
Joint committee or ask for public opinion
Third Reading
• Debate is confined to acceptance or rejection
• Bill is authenticated by the Presiding officer and
sent to next house.
Bill in second house
• Bill passes through all stages
• Four alternatives before this house
May pass the bill as send by other house
May pass the bill with amendment and send it
to first house
May reject the bill altogether
May not take any action and keep it pending
Dead Lock
• If first house rejects the amendment made by
second house
• Second house rejects it
• Second house does not take any action for 6
months
• In order to resolve this deadlock president can
summon a joint sitting.
Assent of the president
• Three alternatives before president
• May give his assent to the bill
• May withhold his assent to the bill( Pocket Veto)
• May return the bill for reconsideration of the
houses( Suspensive veto)
Money Bill
• Art 110 deals with the definition of money bill
• Bill is deemed to be money bill if it contains
‘only’ provisions dealing with all or following
matters;
 Imposition, abolition, remission, alteration or
regulation of any tax
 The regulation of the borrowing of money by
union government.
consolidated or contingency fund of India:-

Payment of Expenditure
Withdrawal Appropriation
money into charged on

Any matter Incidental to any matter specified in

section 110
When a bill is not a Money bill
• If the bill only provides imposition of fines or
penalties.
• Provides only the demand or payment of fees for
license or fees for services rendered.
• Imposition, abolition, remission, alteration or
regulation of any tax by any local authority for
local purpose
• If any question as to whether a bill is a money
bill or not, decision of Lok sabha speaker is final.
• Cannot be questioned in court of law
Procedure
• Can only be introduced in Lok sabha
• Can only be introduced with recommendation of
president by a minister
• Speaker gives certificate as to money bill.
• Its defeat in Lok Sabha will lead to resignation of
the government
• Rajya Sabha cannot reject or amend the money
bill
• Rajya sabha must return the Money bill to Rajya
sabha within 14 days with or without
recommendation
• Lok sabha either can accept or reject the
recommendation of Rajya sabha( No joint sitting)
• President can either give assent or withhold the
bill but cannot return the bill.
Financial Bills
• Deals with fiscal matters
• Financial Bills are of three;
1. Money bill( eg- Finance bill along with budget)
2. Financial Bill (1)- 117(1)( Central road fund
bill- now Central road fund Act,2017)
3. Financial Bill(2)-117(3)( eg President’s
(Emoluments and) Pension Act, 1951)
Financial Bill( category 1)

• Bill that contains some provisions related to

taxation or expenditure, but also covers other
matters.
• A Financial Bill may only be introduced in Lok
Sabha,
• On the recommendation of the President.
• The Bill must be passed by both Houses of
Parliament .
• President can summon joint sitting in case of
deadlock
financial bill of category-II
• A financial bill of category-II is one which
although has provisions involving expenditure
from Consolidated Fund of India but does not
have anything mentioned in article 110
• Procedure similar to ordinary Bill.
• Recommendation of Presidents is necessary for
considering and passing this bill
Sessions of Parliament
• A session of the Indian Parliament is the period
during which a House meets almost every day
uninterruptedly to manage the business
• Budget session (February to May)
• Monsoon session (July to September)
• Winter session (November to December)
Termination of parliament
• Prorogation-An adjournment terminates a
sitting of the House.
• Art 85(2)(a)
• Power with president exercised with advice of
prime minister
• A bill or business pending in house or pending
assent of president does not lapse.
• Adjournment- An adjournment terminates a
sitting of the House.
• Adjournment Sine Die-The adjournment is done
(sitting terminated) without any time scale
• Adjournment is the act of house and power vest
with presiding officer
Dissolution
• Puts an end to the life of the house
• It leads to election of a new house
• Rajya sabha is a continues house
• Lok sabha not a continues chamber, its normal
life is 5 years
• Life of Lok sabha can be extended 1year at a time
during emergency
When does the President give the order for
Lok Sabha’s dissolution
• If authorized by the Council of Ministers, he can
give the order even before the end of the five-
year term.
• He can also dissolve if the Council of Ministers
lose confidence and no party is able to prove
majority
• The last session before the Lok Sabha is
dissolved is called a Lame Duck session.
Effect of dissolution on business pending in
house
Bill Pending Rajya
sabha

Not
passed
Does not
Lapse
Art 107(4)

Lok
sabha

• Bill Pending in the Lok Sabha Lapses- Art 107(5)

 Rajya
Bill Pending sabha

• Lapses
Passed Art 107(5)
But will not
lapse if Joint
session
already called
Lok
Sabha
 Bill Passed Rajya
Sabha

Passed
Does not
Lapse
Lok Pending
Sabha Assent of
president

• Dissolution does not wipe out contempt proceedings

Parliamentary Privileges and Immunities of
parliament and its members

• Art 105
• Art 194 deals with state legislature and it is exact
reproduction
• Each member of house have certain rights and
immunities and also certain rights, immunities
and powers on each house collectively.
Privileges
• Freedom of speech and freedom of
publication( Art 105(1) & Art 105(2)
• Other Privileges- “ insofar as the privileges of
parliament, its members and committees have to
be determined on the basis of what they were
immediately before commencement of 1978
amendment.”
Freedom of speech
• Art 105(1)- ‘there shall be freedom of speech in
parliament’
• No action, criminal or civil will lie against the
member
1. In respect of things said in parliament or its
committees
2. Immunity is not limited to mere spoken words,
it extends to votes
• Right is subject to the provisions of this
constitution and rules and standing order
regulating procedure.( art 107 and 121- discuss
conduct of president or governor)
• Jatish Chandra Ghose v. Harisadhan Mukherjee,
AIR 1956 Cal 433. court held that if a member of
the house makes a statement outside, which is
defamatory, he will be held liable
• Art 105(2)- ‘No member of Parliament shall be
liable to any proceedings in any court in respect
of anything said or any vote given by him ’
• Word ‘anything’ is of the widest import. what
they say is only subject to the discipline of rules
of parliament.
• P.V Narasimha Rao v. State, (1998) 4 SCC 629
Right of publication of proceedings
• Stockdale v. Hansard, (1839) 9 Ad&E 1 &
parliamentary papers Act,1840
• Art 105(2)- expressly declared that no person shall
be liable in respect of the publication, by order
under the authority of a house
• “ qualified privilege” to fair and accurate unofficial
reports of parliamentary proceedings
• The burden of proof  is on the defendant to show
that the publication was without malice
• Parliamentary Proceedings( publication)
Act,1956 ( No liability for true reporting)
• Surendra Mohanty v. Nebakrishna
Choudhury( AIR 1958 Ori. 168)
• The 44th Amendment Act,1978- Incorporated Art
361-A
OTHER PRIVILEGES
• Freedom from arrest-Member of parliament or
state legislature cannot be imprisoned on a civil
proceeding within 40 days before and 40 days
after the session of parliament.
• Only available against civil arrest and does not
extend to arrest or imprisonment on a criminal
charge or contempt of court or preventive
detention.
Disciplinary power over members
• Can punish for offending conduct in the house or
to expel a member who conduct himself in a
manner unfit for membership.
• Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,
2007 3 SCC 184
Power to punish for contempt
• House has power to punish a person, for its
contempt or breach of privilege
• Generally, case of contempt arises in following
matters;
1. When any act or omission obstructs or
impeded it in performance of its function
2. Obstructs or impedes any member or officer of
house in discharging its duty or has a tendency,
directly or indirectly, to produce such results
• Punishment which house may impose on non-
members for its contempt or breach of privilege
are reprimand, imprisonment and fine.
• Imprisonment can be imposed by a house but it
can only be till the close of existing session
• The case of Bombay Municipal Corporation,
report of privilege committee, Maharashtra
Leg.ASS 1964
• Committee of privilege- reference may be made
either by speaker, chairman or by house upon a
motion of member.
Privileges and Fundamental Rights
• Gunupati Keshavaram Reddy v. Nafisul Hasan,
AIR 1954 SC 636
• M.S.M Sharma v. S.K. Sinha(I) AIR 1959 SC
395( Search Light case-I )
Privilege enjoyed by a house of parliament under
Art 105(3) or Art 194(3), were not subject to Art
19(1)(a)
• M.S.M Sharma v. S.K. Sinha(II), AIR 1960 SC
1186
• Keshav Singh v. Speaker Leg. Assembly. Air 1965
All. 349.- Court held that if a person has been
deprived of personal liberty under Art 21 not in
accordance with the law but maliciously then
court will be bound to look into the matter