Legislature

Legislature: Parliament &
State Legislature
Constitution
Part V, Chapter II
Article 79: House of people, Council of states and President
British and American Model
Parliamentary vs. Presidential form of democracy
Separation of power and concerns of efficiency
Composition of Rajya Sabha
Article 80.
Total 250 members
Seats are allotted on the basis of population.
Fourth Schedule
Role and Importance of Rajya Sabha
Rajya Sabha vis-a- vis House of Lords
United States- Senate
Composition of Lok Sabha
Article 81.
No. of seats : Population = Ratio for all states
Upto 2026- Census figure of 1971 to determine the population
Delimitation Commission Act, 2002.
Reservation for SC/ST. Art 330
Nomination for anglo-Indian community (Article 331)- no longer applicable
Article 83- Duration of the house
Article 84- Qualification of members
RP Act, 1951
Article 85- 86
Officers of Parliament- 89-98
Conduct of Business- 99-100
Disqualification of membership
Office of Profit Art 102(1) (a) & Art 191(1)(a)
MPs and MLAs, as members of the legislature, hold the government accountable for
its work.
The essence of disqualification under the office of profit law is if legislators holds an
‘office of profit’ under the government, they might be susceptible to government
influence, and may not discharge their constitutional mandate fairly.
The intent is that there should be no conflict between the duties and interests of an
elected member. Hence, the office of profit law simply seeks to enforce a basic
feature of the Constitution- the principle of separation of power between the
legislature and the executive.
‘Office of profit’ - not defined
Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
Several factors are considered in this determination including factors such as: (i) whether the government is the appointing
authority, (ii) whether the government has the power to terminate the appointment, (iii) whether the government determines
the remuneration, (iv) what is the source of remuneration, and (v) the power that comes with the position.
Parliament (Prevention of Disqualification Act), 1959
Ramkrishna Hegde v. State of Karnataka 1993.

Shubu Soren v. Dayanand Sahay 2001
Jaya Bacchan v. Union of India 2006
Biharilal Dobrey v. Roshanlal Dobrey 1984
Satrucharla Chandrasekhar Raju vs Vyricherla Pradeep Kumar Dev 1992
On a careful examination of the ratio laid down in the above mentioned cases some of the tests or principles that emerge for determining
whether a person holds an office of profit under the Government, may be summarised thus:
(1) The power of the Government to appoint a person in office or to revoke his appointment at the discretion. The mere control of the
Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not
disqualify that officer from being a candidate for election as a member of the Legislature.
(2) The payment from out of the government revenues; are important factors in determining whether a person is holding an office of profit or not
of the Government. Though payment from a source other than the government revenue is not always a decisive factor.
(3) The incorporation of a body corporate and entrusting the functions to it by the Government may suggest that the statute intended it to be a
statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes,
the form may be that of a body corporate independent of the Government, but in substance, it may be the just alter ego of the Government itself.
(4) The true test of determination of the said question depends upon the degree of control, the Government has over it, the extent of control
exercised by very other bodies or committees, and its composition, the degree of its dependence on the Government for its financial needs and
the functional aspect, namely, whether the body is discharging any important Governmental function or just some function which is merely
optional from the point of view of the Government.
Parliamentary Privileges
Freedom of Speech:
Sir Elliot John’s Case
Privileges of British Parliament: Bill of Rights, 1688
Essence of Parliamentary Democracy
105 & 194.
Subject to 118 and 121.
Cannot be questioned in any Court.
Power of Speaker
Tej Kiran v. Sanjiva Reddy
P.V. Narsimha Rao v. State 1998
- can a MP claim immunity from prosecution before a criminal court on a
charge of bribery in relation to proceedings in Parliament?
- Whether MP is a public servant?
- 2:3
Ordinary law does not apply to bribe in relation to proceeding in Parliament
Diff. between bribe givers and takers
The Court reasoned that the term ‘in respect of’ occurring in the Article accorded parliamentary immunity
against any liabilities “that relate to, or concern, or have a connection or nexus with anything said, or a vote
given, by him in Parliament.”
Once such a functional connection was established, immunity prevailed. For those accused who voted, the
exemption existed. However, for the parliamentarian who failed to vote, the alleged bribe was not ‘in
respect of’ any vote or speech, disqualifying him from claiming parliamentary immunity.
Minority view observed that, liability arises independent of vote given.
Sita Soren matter - SC to reconsider

Other Privileges 105(3)
Freedom from Arrest
- Only in civil cases and not criminal cases or preventive detention.
- House has right to receive immediate intimation. Lok Sabha Rule
Inquiries
- House has the power to initiate inquiries, bring witness in custody
Disciplinary Powers over members
- Can expel members also
- Courts cannot interfere
- Raja Ram Pal v. Hon’ble Speaker 2007
Power to Punish for contempt
Privileges, Court and Fundamental Rights
Gunpati Keshavram Reddy v. Nafisul Hasan 1954

Searchlight case: MSM Sharma v. Sinha (I) 1959
Keshav Singh case
Presidential reference under 143
Anti-defection Law
52nd Amendment Act: 101 3(a), 102 (2), 190(3)(a) and 191(2)
Tenth Schedule: Anti defection Law
Rule 2- lays the grounds for disqualification of the member’s i.e.: If a member of a
House belonging to a political party: a. Has voluntarily given up his membership of
such political party, or b. Votes, or abstains from voting in such House, contrary to the
direction of his political party. However, if the member has taken prior permission, or
is condoned by the party within 15 days from such voting or abstention, the member
shall not be disqualified. If an independent candidate joins a political party after the
election. If a nominated member of a house joins any political party after the expiry of
six months from the date when he becomes a member of the legislature.
Rule 3: stated that there will be no disqualification of members if they represent a
faction of the original political party, which has arisen as a result of a split in the
party. A defection by at least one-third members of such a political part was
considered as a spilt which was not actionable. This provision was deleted by the
91st Amendment in 2003.
Mayawati v. Markendeya Chand 1998.
164 (1B), 361 B
Exemptions in cases of merger: Members are exempted from such disqualification
when at least twothirds of the original political party merges with another political
party. Further: (i) the members must have become members of the party they have
merged with/into, or (ii) they should have not accepted the merger and choose to
function as a separate group. ▪ Decision making authority:
Rule 6- confers power on the Speaker or the Chairman of a House, before which the
question of disqualification of a member has arisen, to answer on the question of
disqualification of such member, with the decision of such Chairman or Speaker being
final.
Rule 8- confers power on the Chairman or Speaker of a House to make rules for
giving effect to the provisions of the Tenth Schedule
Kihoto Hollohon v. Zachilhu 1993
Freedom of speech and expression- violative of basic structure ?
Para 7 - held to be violative of Basic Structure
Majority Opinion- Validated the CA (except para 7) upholding the ideals of
parliamentary democracy.
Unprincipled and unethical political defection
Does not violate any rights and freedoms guaranteed under Article 105/194
Speaker acting as a tribunal will be open to judicial review
“ The Chairman or Speakers hold a pivotal position in the scheme of
Parliamentary democracy and are guardians of the rights and privileges of the
house. They are expected to and do take far reaching decisions in the functioning
of the Parliamentary democracy. Vesture of power to power to adjudicate question
under the Xth Schedule in such constitutional functionaries should not be
considered exceptionable”
Minority Opinion- Bill needed to be ratified by states, hence the CA is void
Speaker as ‘sole arbiter’ violates basic structure of the Constitution.
Rajendra Singh Rana v Swami Prasad Maurya 2007
In 2003, 13 MLAs from the Bahujan Samaj Party (BSP) supported the bid made by Mulayam Singh Yadav, founder of the
Samajwadi Party, to form the U.P. Government. Swami Prasad Maurya, the leader of the BSP filed a petition with the
Speaker for the disqualification of these 13 MLAs. The Speaker rejected the petition, accepting the argument that there
was a split in the BSP, and did not disqualify the MLAs.
Mr. Maurya challenged the decision in the SC in 2006. A 5-Judge Constitution Bench held that the 13 MLAs voluntarily
gave up their membership and were disqualified, as they had written a letter to Governor T.V. Rajeswar requesting him to
invite the Samajwadi Party to form the government. The Court held that the disqualification would be said to have taken
place the moment the members commit the act of defection. They further held that the Speaker could not initiate
disqualification proceedings suo moto, and would have to be approached with a petition first.
Existing Issues
Reduces accountability
voluntary giving up of party membership is not defined
Speaker’s discretion (Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, 2020)
Legislative Function of the Parliament
Art 107- 111

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Legislature: Parliament &

Parliament (Prevention of Disqualification Act), 1959

Ramkrishna Hegde v. State of Karnataka 1993.

Minority view observed that, liability arises independent of vote given.

Sita Soren matter - SC to reconsider

Gunpati Keshavram Reddy v. Nafisul Hasan 1954

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