Article 169 of the Indian Constitution provides the constitutional mechanism for the creation or abolition of Legislative Councils in the States. While most States in India have a unicameral legislature (only a Legislative Assembly), some States opt for a bicameral legislature which includes both a Legislative Assembly and a Legislative Council.
This article outlines the specific process and requirements that must be followed by both the State Legislature and the Parliament of India for bringing about a change in the structure of the State’s legislature regarding the presence or absence of a Legislative Council.
Original Text
169. Abolition or creation of Legislative Councils in States.
(1) Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
(2) Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.
(3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.
Detailed Explanation
Article 169 lays down the procedure for either abolishing an existing Legislative Council in a State or creating a new one where none exists. The power to ultimately make this change rests with the Parliament of India, but this power is not exercised unilaterally. It is contingent upon a specific request initiated by the concerned State Legislature.
The process begins at the State level. The Legislative Assembly of the State must pass a resolution expressing its desire to either abolish the existing Legislative Council or create a new one. Crucially, this resolution must be passed by a special majority. This special majority requires two conditions to be met simultaneously:
- A majority of the total membership of the Legislative Assembly (i.e., more than 50% of the total strength of the Assembly, including vacant seats).
- A majority of not less than two-thirds of the members of the Assembly present and voting.
Once the State Assembly passes such a resolution with the stipulated special majority, it is then forwarded to the Parliament. Based on this resolution, Parliament may by law provide for the abolition or creation of the Legislative Council. The word “may” indicates that Parliament is not bound to act upon every such resolution received from a State Assembly; it has the discretion to accept or reject the request.
The law enacted by Parliament for this purpose will contain necessary provisions for amending the Constitution (specifically Article 168, which lists states with bicameral legislatures, and potentially other related articles like those defining the composition and powers of the Legislative Council) to give effect to the abolition or creation. The law may also include supplemental, incidental, and consequential provisions deemed necessary by Parliament.
A very significant aspect of Article 169 is clarified in clause (3). It explicitly states that a law enacted by Parliament under clause (1) for the abolition or creation of a Legislative Council shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. This means that such a law can be passed by Parliament using a simple majority (majority of members present and voting) and does not require the special majority procedure laid down for constitutional amendments under Article 368. However, as noted above, the State Assembly’s resolution does require a special majority under Article 169(1).
Detailed Notes
- Article 169 deals with the procedure for the abolition or creation of Legislative Councils in States.
- The process is initiated by the State Legislative Assembly.
- The State Legislative Assembly must pass a resolution expressing the desire to abolish or create a Legislative Council.
- The resolution must be passed by a special majority in the State Assembly:
- A majority of the total membership of the Assembly.
- A majority of not less than two-thirds of the members present and voting.
- After the State Assembly passes the resolution, Parliament may enact a law to give effect to the resolution.
- Parliament is not bound to act upon the State Assembly’s resolution.
- The law enacted by Parliament under Article 169 will contain provisions necessary to amend the Constitution (specifically Article 168 and related articles) to reflect the change.
- The law may also contain supplemental, incidental, and consequential provisions.
- A law made by Parliament under Article 169 for abolishing or creating a Legislative Council is not considered an amendment to the Constitution under Article 368.
- This means Parliament can pass such a law by a simple majority.
- The procedure involves a combination of State initiative (special majority resolution) and Parliamentary action (simple majority law).
Additional Comments
- As of late 2023, six Indian states have Legislative Councils: Andhra Pradesh, Telangana, Uttar Pradesh, Bihar, Maharashtra, and Karnataka.
- Jammu and Kashmir previously had a Legislative Council, but it was abolished upon the reorganization of the state into Union Territories in 2019.
- Some states like Rajasthan, Assam, and Odisha have passed resolutions for the creation of a Legislative Council, but Parliament has not yet enacted the necessary law in these cases.
- The existence of a Legislative Council can be seen as a check on hasty legislation by the Assembly, provides a platform for wider representation (e.g., of teachers, local bodies, nominated members with expertise), and allows for more detailed scrutiny of bills.
- Critics argue that Legislative Councils are expensive, can cause delays in legislation, and are sometimes used to accommodate political favourites who could not win elections.
- The requirement for both State resolution and Parliamentary law ensures that the decision reflects both the will of the state legislature and the approval of the central legislature, maintaining a balance in cooperative federalism on this matter.
- The fact that a law under Article 169 is not an Article 368 amendment simplifies the process in Parliament, allowing for flexibility based on political and administrative considerations rather than requiring a stringent constitutional amendment procedure.
Summary
Article 169 of the Indian Constitution establishes the process for either adding or removing a Legislative Council in a State. This action is initiated by the State Legislative Assembly, which must pass a resolution recommending the creation or abolition by a special majority (majority of total membership and two-thirds of members present and voting). Following this resolution, Parliament holds the power to enact a law to effect the change, though it is not obligated to do so. The law passed by Parliament under this Article, despite potentially amending certain constitutional provisions, is explicitly not considered an amendment under the stringent procedure laid down in Article 368, meaning it can be passed by a simple majority in Parliament. This mechanism balances State initiative with Parliamentary discretion in shaping the structure of State legislatures.