B. State Legislature

The provisions of States are similar to that of Union. Only two articles have been commented upon in this part.

“194. Powers, privileges, etc., of the House of Legislatures and of the members and committees thereof:

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

COMMENTS

Article 194 (i) & (ii) is similar to Article 105 of the Constitution, which provides for the privileges of the Parliament and its Members. The said Article provide that the privileges enjoyed by the legislature shall be such as may from time to time be defined by the legislature by law. It is relevant to mention that any law made by the Parliament or the legislature is subject to the discipline contained in Part III of the Constitution. The privileges have not been defined but the above Article provides that until the same are so defined (i.e., by the legislature by law), they shall be those which the House or its members and committees enjoyed immediately before the coming into force of Section 26 of the Constitution Forty-fourth Amendment Act, 1978.

The privileges available only in so far as they are necessary in order that the House may freely perform its functions but do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiations. The scope of the privileges enjoyed depends upon the need for privileges, i.e., why they have been provided for. The basic premise for the privileges enjoyed by the members is to allow them to perform their functions as members and no hindrance is caused to the functioning of the House. The basic concept is that the privileges are those rights without which the House cannot perform its legislative functions. They do not exempt the Members from their obligations under any statute, which continue to apply to them like any other law applicable to ordinary citizens. Thus, enquiry or investigation into an allegation of corruption cannot be said to interfere with the legislative functions of the Assembly. No one enjoys any privileges against criminal prosecution.

Codification of Privileges:

The question of codification of privileges has engaged the attention of the Presiding Officers of the Parliament and State Legislatures in India since 1921. On the subject, the Committee of Privileges of the Tenth Lok Sabha noted as follows:

(i) The Parliamentary privileges are intended to be enjoyed on behalf of the people, in their interests and not against the people opposed to their interests;

(ii) The concept of privileges for any class of people is anachronistic in a democratic society and, therefore if any, these privileges should be the barest minimum – only those necessary for functional purposes – and invariably defined in clear and precise terms;

(iii) Sovereignty of the Parliament has increasingly become a myth, and a fallacy for sovereignty, if any, vests only in the people of India who exercise it at the time of general elections to the Lok Sabha and to the State Assemblies;

(iv) In a system wedded to freedom and democracy –rule of law, rights of the individual, independent judiciary and constitutional government – it is only fair that the fundamental rights of the citizens enshrined in the Constitution should have primacy over any privileges or special rights of any class of people, including the elected legislators, and that all such claims should be subjected to judicial scrutiny, for situations may arise where the rights of the people may have to be protected even against the Parliament or against captive or capricious Parliamentary majorities of the moment;

(v) The Constitution specially envisaged privileges of the House of Parliament and State Legislatures and their members and committees being defined by law the respective legislatures and as such the Constitution makers definitely intended these privileges being subjected to the fundamental rights, provisions of the Constitution and the jurisdiction of the courts;

(vi) The basic law that all citizens should be treated equally before the law holds good in the case of members of the Parliament as well. They have the same rights and liberties as ordinary citizens except when they perform their duties in the Parliament. The Privileges, therefore do not in any way, exempt members from their normal obligation to the society which apply to them as much and, perhaps, more closely in that as they apply to others.

In any case, there is no question of any fresh privileges being added inasmuch as (a) under the Constitution, even at present the Parliamentary privileges in India continue in actual practice to be governed by the precedents of the House of Commons as they existed on the day our Constitution came into force; and (b) in the House of Commons itself, creation of new privileges is not allowed.”

200 Assent to Bills:

When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both the Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President.

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

COMMENTS

Article 200 for the Constitution empowers the Governor of a State to reserve any Bill passed by the Legislature for consideration of the President. The other provisions in the Constitution like Articles 31A, 31C, 254 (2), 288, 304(b) and 360 also make it mandatory for the State laws to be reserved for the consideration of the President.

Under Article 200 of the Constitution, the Governor has the option either to assent the Bill or withhold his assent therefrom or reserve the Bill for consideration of the President. Governor has power to return a Bill, other than a Money Bill, to the Legislature for reconsideration. Where a Bill is reserved by the Governor for consideration of the President, the President has the option of either assenting the Bill or withholding his assent therefrom.

The Supreme Court of India in case P. Nambudiri vs. State of Kerala held that the Constitution does not stipulate to that the assent of the Governor or the President must be given during the life term of the Assembly which passed the Bill. The Constitution does not impose any time limit within which the Governor or the President should make a declaration for giving or refusing the assent.