The context: Just as the role of the Parliament pertains to making laws on a national level, the State Legislative Assemblies have been created for the same purpose at the state level under the Constitution. Over the years, the question of the efficacy of these state legislatures has to some extent been positioned under doubts based on their performance. In this article, we analyse the working of state legislative assemblies from the UPSC perspective.
LEGISLATIVE ASSEMBLIES OF THE STATES IN INDIA: A BRIEF BACKGROUND
- It was for the first time in the year 1773 via the Regulating Act of 1773 that provisions were made for the appointment of a Governor General and it was further assisted by a Governor General’s council.
- Under the 1861 Act, new legislative councils are formed in the provinces of Bengal, NWFP and Punjab.
- The Government of India Act of 1919 (also known as the Montagu-Chelmsford Reforms) was based on the Montagu-Chelmsford Report that had been submitted to Parliament in 1918. Under the act, elections were held in 1920, the number of Indian members to the viceroy’s Executive Council was increased from at least two to no fewer than three, and the Imperial Legislative Council was transformed into a bicameral legislature consisting of a Legislative Assembly (lower house) and a Council of State (upper house).
- Later, in accordance with the provisions of the Act of 1935, preparations were held for provincial autonomy. In early 1937, the general election to the provincial legislatures was fixed throughout the country.
- The Government of India Act 1935 ended dyarchy in the provinces and increased autonomy. Six provinces were given bicameral legislatures. Elections based on separate electorates were held in 1937 and 1946, leading to the formation of provincial ministries (governments) led by a Prime Minister.
- Further, the Constitution of India has embedded in its provisions, a detailed description about bicameralism in India. Part VI, Chapter III, Article 168-212 talks about the formation/creation of state legislatures, their composition, manner of election, abolition and dissolution, members- their powers and duties, etc.
- Some key provisions regarding State Legislative Assemblies:
Article 168
- Article 168 is the provision which speaks about the constitution of state legislatures.
ARTICLE 169
- Article 169 speaks about the abolition or creation of legislative councils. States which have a bicameral legislature can abolish their legislative council and states that wish to have a bicameral legislature, can opt for the creation of a legislative council.
- In either case, a special majority resolution has to be passed by the legislative assembly of that state. The special majority is obtained when the majority of all the members and two-thirds majority of the members present and voting, give their assent in favour of the motion.
ARTICLE 170
- Article 170 and Article 171 speak about the composition of the legislative assembly and the legislative council, respectively.
- Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State
- The total number of members in the Legislative Council of a State having such a Council shall not exceed one-third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.
ARTICLE 172, 173
- Article 172 specifies the duration of the state legislatures and Article 173 speaks about the qualifications required for becoming a member in state legislatures.
ARTICLE 174
- Article 174 gives power to the Governor to summon sessions of the houses, prorogue either house and dissolve the legislative assembly. The legislative council, however, is a permanent body and cannot be dissolved.
LEGISLATIVE ASSEMBLIES OF THE STATES IN INDIA: WORKING AND MANDATE
ROLE AND RESPONSIBILITIES
- Every state and union territory (except those directly governed by the Union Government) of India has a legislative assembly. It is the house of state legislature where legislative power truly resides. Any bill or proposition is always presented in the legislative assembly.
- Though it is then passed to the legislative council, the legislative assembly is not bound by the recommendations of the legislative council.
NATURE
- The powers of legislative councils are advisory in nature and ultimately, the decisions are made by the legislative assembly. This is why it is said to be the house where power truly resides. This is to an extent similar to the status of Lok Sabha in Parliament.
SCOPE OF BICAMERALISM
- States having a unicameral legislature, and that want to adopt a bicameral legislature by creating a legislative council, will have to present the motion for the same in the legislative assembly.
- States which have a legislative council but wish to abolish it, too, have to present their motion in the legislative assembly. It is only when a special majority is obtained in the legislative assembly that the creation/ abolition takes effect.
COMPOSITION
- The minimum number of members that must constitute a legislative assembly is 60 members and an upper limit of 500 members has been set. However, for certain states like Goa, Sikkim, etc., the lower limit has been relaxed.
LEGISLATIVE ASSEMBLIES OF THE STATES IN INDIA: ANALYSING THE PERFORMANCE
FREQUENCY OF ATTENDANCE
- In 2021, state assemblies met for an average of 21 days and during this time, passed more than 500 Bills. The average is boosted by three states: Kerala (61), Odisha (43), and Karnataka (40) which met for 40 days or more. 17 states met for less than 20 days and of these, five met for less than 10 days.
- Between 2016 and 2021, 23 state assemblies met for an average of 25 days. States which met for fewer days include Tripura (11), Punjab (14), Haryana (14), Uttarakhand (14), and Delhi (16). A low number of sitting days impacts legislative scrutiny of Bills, budgets, and other issues.
LIMITED SCRUTINY OF BILLS
- The Legislative Bills covered a variety of subjects such as regulating higher education, online gaming, religious conversions, and the preservation of cattle.
- Most of these Bills saw little legislative scrutiny. About half of the Bills were passed within a day of their introduction.
- In 2021, 44% of Bills were passed within a day of their introduction in the legislature. In eight states including Gujarat, West Bengal, Punjab, and Bihar, all Bills were passed on the same day as they were introduced.
ABSENCE OF DETAILED SCRUTINY OF LAWS
- In Parliament, Bills are often referred to Parliamentary Standing Committees for detailed examination. In most states, such committees are non-existent.
- In the absence of a robust committee system and fewer working days, state legislatures barely spend any time scrutinising legislative proposals brought before them.
- An Assembly may create ad hoc Select Committees for the specific purpose of examining a Bill. However, at the state level, Committees are often the exception rather than the norm, and Bills are rarely examined by Committees.
DISCREPANCIES IN ATTENDANCE: ONLY BUDGET SESSION WITNESSES’ THE MAJORITY OF WORKING DAYS
- Article 174 of the Constitution states that the gap between one sitting of the Assembly and the next should not be more than six months. In most states, legislatures meet for two or three sessions in a year.
- This consists of a long budget session, which concludes by the end of March and then brief monsoon and winter sessions.
- In 2021, on average, 61% of the sittings were held during the budget session. Some states like Rajasthan, Tripura, and Punjab held more than 70% of their total sittings during the budget session. In Manipur, Mizoram, Gujarat, and Tamil Nadu, more than 80% of the total sittings were held during the budget session.
ROLE OF GOVERNOR: ANALYZING ASSENTS AND ORDINANCES
- In 2021, 75% of the Bills received the assent of the Governor within a month. States, where the average time for Bills to receive assent was the shortest, include Meghalaya (four days) and Uttar Pradesh (six days). States with comparatively longer time for assent are Jharkhand (80 days on average) and Tripura (63 days).
- Although swift assent is good for smooth law-making, recurring instances of such fast assents put the credibility of both the law and office of the Governor
- in some doubt.
- The Supreme Court has held that the Ordinance route for law-making should be used only under exceptional circumstances and should not substitute the law-making powers of the Legislature.
- In 2021, 21 out of 28 states promulgated Ordinances. The Kerala government promulgated the highest number of Ordinances (144) followed by Andhra Pradesh (20) and Maharashtra (15).
ISSUE OF TRANSPARENCY
- Information and data on state legislatures is not easily available. While some state legislatures publish data on a regular basis, many do not have a systematic way of reporting legislative proceedings and business.
- Some states do not regularly update their websites or the National e Vidhan Application (a central initiative to collate information on all legislatures). Data on the indicators chosen here was not available for all states/UTs.
- While some states such as Karnataka, Delhi and Rajasthan place the texts of legislative debates on their assembly websites, many such as Gujarat and West Bengal don’t.
- RTI replies from Gujrat State assembly officials said that there are no plans in the near future of uploading debates of the Gujarat Legislative Assembly proceedings on the website.
THE IMPLICATIONS OF POOR PERFORMANCE OF THE STATE LEGISLATURE
OVERLOOKING LOCAL ASPIRATIONS
- State legislatures make laws on subjects in the State List and the Concurrent List of the Constitution. These include subjects such as law and order, police, health, education, and land.
- Thus, more than the Parliament, the state legislatures hold a key position in making laws for people within the state premise. Hence, an ineffective or less productive state legislature means overlooking key local issues and aspirations.
LACK OF ACCOUNTABILITY
- Due to a loss in the number of active working days, there is limited scrutiny of state-level expenditure, fiscal devolution and decentralization of decision-making within states, or tracking functioning of state legislatures. This results in limited accountability while paving the way for further arbitrariness in law-making.
- By enforcing the collective responsibility of the Council of Ministers and the individual responsibility of the ministers, the assemblies ensure an accountable government and responsive administration. Through instruments like question hour, debates, motions, budgetary control, committee system etc., the assemblies act as the watchdog of citizens’ trust. Thus, the proper functioning of these deliberative institutions is vital for upholding the public interest and the rule of law.
THREAT TO FEDERALISM
- The state legislatures play a key role in Constitutional Amendments concerning one or more states (in the form of special majority requirements). Attenuating working days thus, signify that such bills won’t be scrutinized properly. This would ultimately hamper the federal spirit of the Constitution.
LOSS OF PUBLIC TRUST
- Unlike the Centre, where draft bills are often shared by ministries for public comments, the process of conceiving, deliberating and passing state laws is rather ambiguous. Furthermore, arbitrary promulgation of ordinances and lack of transparent house sessions further enhance this ambiguity in state legislatures.
- This may in the long term erode public trust in the legislative institutions. All states must practice inclusive policy-making.
VIOLATION OF CITIZENS’ RIGHT TO INFORMATION
- The information about the debates and other proceedings of the assemblies should ideally be found in the public domain, as mandated by Section 4 (1) (b) of RTI Act, 2005 on proactive public disclosure of government documents.
- Without timely access to this information, the citizens and the civil society cannot hold their representatives accountable which leads to arbitrariness and corruption in governance.
THE WAY FORWARD
FIXING TIME PERIOD
- The National Commission to Review the Working of the Constitution (NCRWC) had recommended setting a minimum period of sitting days for state legislatures.
- It had suggested that state legislatures with less than 70 members should meet for at least 50 days a year, while the rest should meet for at least 90 days.
- Article 174 needs to be amended to fix the minimum number of days assemblies must sit (in days) in a year. Also, the total control of the executive in calling the session and deciding the days of sittings needs revision.
FORMING COMMITTEES FOR SCRUTINY OF BILLS
- Committees help legislatures discuss Bills in detail and scrutinize their provisions closely.
- Committees also provide an opportunity to engage with sectoral experts and stakeholders which allows for wider participation in the law-making process.
- State Assemblies must create ad hoc Select Committees for the specific purpose of examining a Bill.
USING TECHNOLOGY
- The National e-Vidhan Application (NeVA) is a system for digitising the legislative bodies of all Indian states and the Parliament through a single platform on which house proceedings, starred/unstarred questions and answers, committee reports etc. will be available.
- Nagaland became the first state to implement NeVA.
- Thus, Nagaland becomes an example to be followed by other states so as to ensure the highest levels of transparency in legislative assemblies and councils.
LIVE TELECAST ALL PROCEEDINGS
- Lack of accountability to citizens emanates from the high degree of opacity of proceedings of state assemblies.
- Live telecasts of proceedings will ensure their performance is monitored by citizens in real-time, thereby improving the quality of legislation and debates on matters of public importance.
RTI DISCLOSURES
- Citizens should collectively demand mandatory disclosure of the text of legislative debates and questions on assembly websites by all states under the RTI Act, 2005.
BILINGUAL WEBSITES AND DOCUMENTS
- All government resolutions at the state level, including assembly websites, should be translated into English and be available along with the vernacular language of the state, to ensure more readability and hence more civic and media engagement with state policies and actions.
CASE STUDY: ENHANCING LAW MAKING – JOINT COMMITTEE REPORT ON THE MAHARASHTRA SHAKTI BILL
- The Shakti Criminal Laws (Maharashtra Amendment) Bill, 2020 was introduced in the Maharashtra Legislative assembly on December 14, 2020. It was referred to a Joint Committee of both Houses on the same day. The Committee presented its report on December 22, 2021.
- The Bill amends the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offences Act, 2012 in their application to Maharashtra. Key features of the Bill and related recommendations of the Committee include:
1) Enhanced punishment: The Bill mandated the death penalty for certain offences against women and children, such as rape. It also enhanced the punishment for certain offences such as throwing acid and providing false information against a person to humiliate, extort, threaten, defame, or harass them. Making false complaints was punishable with imprisonment for a maximum of one year.
§ Improvements: The Committee recommended increasing the term of imprisonment to a minimum of one and a maximum of three years. The Bill passed by the Assembly included this change.
2) Timelines: The Bill proposed a short timeline for the completion of the investigation, trial, and disposal of appeal for certain offences. The investigation was to be completed within 15 days (extendable by seven days).
§ Improvements: The Committee observed that this short period may affect the merits of the investigation. It recommended increasing this period to 30 days, extendable by a further 30 days. This recommendation was incorporated in the Bill when it was passed.
THE CONCLUSION: Legislatures are arenas for debate and giving voice to public opinion. As accountability institutions, they are responsible for asking tough questions of the government and highlighting uncomfortable truths. So, lesser sittings of the legislature lead to bypassing of crucial debates and scrutiny. Lesser number of sitting days also means that state governments are free to make laws through ordinances. And when they convene legislatures, there is little time for MLAs to scrutinize laws brought before them. Such work culture cannot become the basis of smooth functioning democracy. There needs to be greater accountability and responsibility amongst legislators for the importance of the public office they are holding.
QUESTIONS TO PONDER
- Critically analyse the working of the state legislatures in India. According to you, what steps need to be taken to enhance the productivity of the state legislatures?
- Reforming the functioning of legislative assemblies at the state level is a must for realizing the goal of an accountable administration. Substantiate with relevant examples.
- “Engaging sectoral experts and stakeholders allow for wider participation in the law-making process.” In the light of the statement, discuss the need for establishing select committees at the level of state legislatures.
