UNIT 7:- State Legislature

 Creation and Abolition of Legislative Councils

 Compositions of the Legislative Assembly and Legislative Council

• Basic Reading

 M.P.Jain, Indian Constitutional Law Part III Ch.6

Creation and Abolition of Legislative Councils

 According to the Article 169 of the Constitution of India, the Parliament of India can create or
abolish the State Legislative Council of a state if that state's legislature passes a resolution for
that with a special majority.

 India has a bicameral system of legislature.

 Just as Parliament has two Houses, the states can also have a Legislative Council in addition to
the Legislative Assembly through Article 169 of the Constitution.

Creation and Abolition of Legislative Councils

 Six States having a Legislative Council: Andhra Pradesh, Telangana, Uttar Pradesh, Bihar,
Maharashtra, Karnataka.

 In 2020, Andhra Pradesh Legislative Assembly passed the resolution for abolition of the
Legislative Council. This resolution is yet to be cleared by the Parliament of India to finally
abolish the council.

 In 2019, the Jammu & Kashmir Legislative Council was abolished through the J&K Reorganization
Bill, 2019, which reduced the State of J&K to the Union Territories of J&K and Ladakh.

Creation and Abolition of Legislative Councils:

 The Parliament can abolish a Legislative Council (where it already exists) or create it (where it
does not exist) by a simple majority, that is, a majority of the members of each House present
and voting, if the legislative assembly of the concerned state, by a special majority, passes a
resolution to that effect.

• Special majority implies:

 A majority of the total membership of the assembly and

 A majority of not less than two-thirds of the members of the assembly present and voting.
• Compositions of the Legislative Assembly and Legislative Council

• Composition of Legislative Assembly:

 The Legislative Assembly consists of not more than 500 members and not less than 60.

 The biggest state like Uttar Pradesh has 403 members in its Assembly. States which have small
population and are small in size have a provision for having even lesser number of members in
the Legislative Assembly.

 Puducherry has 30 members. Mizoram, Goa have only 40 members each. Sikkim has 32
members.

 All members of the Legislative Assembly are elected on the basis of adult franchise, and one
member is elected from one constituency.

 Just as the President has the power to nominate 2 Anglo Indians to the Lok Sabha, similarly, the
Governor also has the power to nominate 1 member from Anglo Indian's community as he
deems fit, if he is of the opinion that they are not adequately represented in the Assembly.

• Compositions of the Legislative Assembly and Legislative Council

• Composition of Legislative Assembly:

• Article:-170. Composition of the Legislative Assemblies.

• (1) 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.

• (2) For the purposes of clause (1), each State shall be divided into territorial constituencies in
such manner that the ratio between the population of each constituency and the number of
seats allotted to it shall, so far as practicable, be the same throughout the State.

• (3) Upon the completion of each census, the total number of seats in the Legislative Assembly of
each State and the division of each State into territorial constituencies shall be readjusted by
such authority and in such manner as Parliament may by law determine:

• Compositions of the Legislative Assembly and Legislative Council

• Composition: Legislative Council

 Under Article 171 of the Constitution, the Legislative Council of a state shall not have more than
one-third of the total strength of the State Assembly, and not less than 40 members.

 Like the Rajya Sabha, the legislative council is a continuing chamber, that is, it is a permanent
body and is not subject to dissolution.

 The tenure of a Member of the Legislative Council (MLC) is six years, with one-third of the
members retiring every two years.
• Compositions of the Legislative Assembly and Legislative Council

• Manner of Election: Legislative Council

 One-third of the MLCs are elected by the state’s MLAs,

 Another 1/3rd by a special electorate comprising sitting members of local governments such as
municipalities and district boards,

 1/12th by an electorate of teachers and another 1/12th by registered graduates.

 The remaining members are appointed by the Governor for distinguished services in various
fields namely, literature, science, art, cooperative movement and social service.

• Unit 8:-The Union Judiciary

• Composition of Supreme Court

• Appointment of the Chief Justice of India

• Appointment of Other Judges (Collegium)

• Removal of Judges

• Basic Reading (Cases)

 SP Gupta v Union of India AIR 1982 SC 149 (First Judges Case)

 In re: Special Reference AIR 1999 SC 1(Third Judges Case)

 SC Advocate-on- Record Association v Union of India (1993) 4 SCC44(Second Judges Case)

 Subhash Sharma v Union of India AIR 1991 SC 631

 Supreme Court Advocate-on-Record Association v Union of India 2015Online SC 964 (Forth

Judges Case)

• Composition of Supreme Court

• Appointment of the Chief Justice of India:

 The President of India appoints the Judges of the Supreme Court and the Chief Justice of India as
per Article 124(2) of the Indian Constitution.

 This selection is done on the advice of the Union Law Minister to the PM of India, and then the
Prime Minister advises the President.

 In the Second Judges Case (1993), it was rules by the Supreme Court that the Chief Justice of
India office must only be filled by the senior-most Supreme Court judge.

• Composition of Supreme Court

• Appointment of the Chief Justice of India:

 The Indian Constitution nowhere lists the appointment process of the Chief Justice of India.

 However, as per Article 124(1) of the Indian Constitution, there shall be a Supreme Court of
India, and it shall also consist of a Chief Justice of India.

 In the Second Judges Case of 1993, the Supreme Court of India stated that the Chief Justice of
India should be chosen only by the senior-most judge of the Supreme Court.

 In the Third Judges Case (1998), the Supreme Court stated that the Chief Justice of India must
consult with a plurality of judges.

• Composition of Supreme Court

• Appointment of Other Judges (Collegium):

• It is the system of appointment and transfer of judges that has evolved through judgments of the
Supreme Court (SC), and not by an Act of Parliament or by a provision of the Constitution.

• First Judges Case (1981): It declared that the “primacy” of the CJI’s (Chief Justice of India)
recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12
years.

• Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation”
really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an
institutional opinion formed in consultation with the two senior-most judges in the SC.

• Third Judges Case (1998): SC on the President's reference (Article 143) expanded the Collegium
to a five-member body, comprising the CJI and four of his senior-most colleagues.

• Composition of Supreme Court

• Appointment of Other Judges (Collegium):

 The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior
most judges of the court.

 A HC collegium is led by its Chief Justice and four other senior most judges of that court.

 Names recommended for appointment by a HC collegium reaches the government only after
approval by the CJI and the SC collegium.

 Judges of the higher judiciary are appointed only through the collegium system and the
government has a role only after names have been decided by the collegium.

• Removal of Judges

 The Constitution seeks to ensure the independence of Supreme Court Judges in various ways.
ARTICLE 124(4).
 A Judge of the Supreme Court cannot be removed from office except by an order of the
President passed after an address in each House of Parliament supported by a majority of the
total membership of that House and

 by a majority of not less than two-thirds of members present and voting, and presented to the
President in the same Session for such removal on the ground of proved misbehavior or
incapacity.

 A person who has been a Judge of the Supreme Court is debarred from practicing in any court of
law or before any other authority in India.

• Removal of Judges

 The step-wise process is:

 1. A removal motion signed by 100 members (in case of Lok Sabha) or 50 members (in case of
Rajya Sabha) is to be given to the Speaker/Chairman. (The removal motion can be introduced in
any of the two Houses of Parliament).

 2. The Speaker/Chairman may admit and reject the motion.

 3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to

investigate into the charges. The Committee should consist of the Chief Justice or a judge of the
Supreme Court, a chief justice of a high court and a distinguished jurist.

 4. If the committee finds the judge to be guilty of the charges (misbehavior or incapacity), the
House in which the motion was introduced, can take up the consideration of the motion.

• Removal of Judges

 5. Once, the House in which removal motion was introduced passes it with special majority, it
goes to the second House which also has to pass it with special majority.

 6. After the motion is passed by each House of the Parliament by special majority, an address is
presented to the President for removal of the judge.

 7. Finally, the President passes an order removing the judge.

 So far, no judge of the Supreme Court has been impeached. The only case where an
impeachment motion was initiated and the Inquiry Committee found the judge guilty was of
Justice V. Ramaswami of the Supreme Court (1991-1993). But, this motion was defeated in the
Lok Sabha.

• SP Gupta v Union of India AIR 1982 SC 149 (First Judges Case):

 In this case, a lot of writ petitions were filed by various lawyers and practitioners in different high
courts challenging an order of the government on the non-appointment of 2 judges and their
transfer. It also questioned the constitutional validity of the procedure followed for the
appointment of judges in higher courts.
 One of the several petitions was filed by S.P. Gupta, who served as an attorney in the Allahabad
High Court at that time and the validity of these petitions was questioned by an advocate from
the Ministry of Law and Justice.

 The Supreme Court in this case laid down three major points-

• The Supreme Court held that the word ‘consultation’ in Article 124 does not mean concurrence.
Hence, the President was not bound to make a decision based on the consultation of the
Supreme Court.

• The Supreme Court decided that a High Court Judge can be transferred to any other high court
of a state even against his will.

• Transfer and appointment of judges are in the interest of the public domain and the decision of
the government not to disclose it is not justified, as disclosure would not be made only if such
disclosure would affect the public interest.

• SC Advocate-on- Record Association v Union of India (1993) 4 SCC 44(Second Judges Case):

 The majority verdict, in this case, was delivered by Justice J.S. Verma and this case resulted in the
birth of the collegium system.

 Another petition was filed by Supreme Court Advocates on Record Association and the Supreme
Court, In this case overruled S.P. Gupta v. Union of India and laid down the following points-

 The Case has established the Chief Justice of India’s primacy in appointments and transfers. It
ruled that “consultation” means concurrence, binding the President to the Chief Justice’s
consultations.

 The court held that the Chief Justice of India, in consultation with 2 senior judges, should make
recommendations. The executive should normally give effect to such recommendations.

• In re: Special Reference AIR 1999 SC 1(Third Judges Case):

 This case reiterated the supremacy of the judiciary over the executive in the course of judicial
appointment.

 In this case, the Supreme Court laid down the following points-

 The Supreme Court held that the expression ‘consultation’ with the Chief Justice of India in
Articles 124, 217, and 222 of the Constitution of India requires consultation with the majority of
judges in the formation of the opinion of the Chief Justice of India and the individual and
personal opinion of the Chief Justice of India do not constitute valid consultation

 Consultation would include a collegium of 4 senior-most judges of the Supreme Court.

 The Supreme Court also laid down strict guidelines for the appointment of Judges of the
Supreme Court and high courts. These guidelines are currently known as the Collegium System.
• Supreme Court Advocate-on-Record Association v Union of India 2015 Online SC 964 (Forth
Judges Case):

 In this case, the National Judicial Appointment Commission Act of 2014 was challenged in the
Supreme Court even before coming into force.

 The court, by a 4:1 majority, invalidated and declared the amendment unconstitutional and void
after it came into force. The court preserved judicial independence, a basic feature of the
Constitution, by invalidating the act.

 The main points laid down in this case were-

 The Supreme Court held that Article 124A does not provide adequate representation to the
judicial component of the National Judicial Appointment Commission which is insufficient to
preserve the primacy of the judiciary and hence violative of the independence of the judiciary
which forms the essential structure of the Constitution.

 The Supreme Court held the 99th Amendment and therefore the National Judicial Appointment
Commission Act as ‘unconstitutional and void’.
 The court held that appointments to the Supreme Court and High Court, as well as the
appointment of Chief Justice of India and transfers of judges, should follow the pre-99th
Amendment system. In other words, the court invalidated the National Judicial Appointment
Commission and restored the earlier system.

• Subhash Sharma v Union of India AIR 1991 SC 631

 In these petitions in the nature of public interest litigation under Article 32 of the Constitution,
the relief asked for is one for mandamus to the Union of India to fill the vacancies of Judges in
the Supreme Court and the several High Courts of the country and ancillary orders or
directions in regard to the relief of filling up of vacancies.

 In response to the rule, the Union of India, relying upon S.P. Gupta v. Union of India, [1982] 2
SCR 365, raised a preliminary objection as to the justiciability of the issue.

 The objection, however, was later withdrawn by the succeeding Attorney General who made a
statement that it was the constitutional obligation of the Union of India to provide the
sanctioned Judge strength in the superior courts and default, if any, was a matter of public
interest, and the writ petitions requiring a direction to the Union of India to fill up the vacancies
were maintainable.

• Subhash Sharma v Union of India AIR 1991 SC 631

 A three Judge Bench of the Supreme Court expressed the view that consistent with the
constitutional purpose and process, as expressed in the Preamble to the Constitution, “it
becomes imperative that the role of the institution of the Chief Justice of India be recognized as
of crucial importance in the matter of appointments to the Supreme Court….”

 As regards the word “consultation” in Article 124(2), the Court said: “The constitutional
phraseology would require be reading and expounding in the context of the constitutional
 philosophy of separation of powers to the extent recognized and adumbrated and the cherished
values of judicial independence”.

 The Bench emphasized:

 “An independent non-political judiciary is crucial to the sustenance of our chosen political system.
The vitality of the democratic process, the ideals of social and economic egalitarianism, the
imperatives of a socio-economic transformation envisioned by the Constitution as well as the
Rule of law and great values of liberty and equality are all dependent on the tone of the judiciary.
The quality of the judiciary cannot remain unaffected, in turn, by the process of selection of
judges”.