It is the right of the House to incorporate a provision saving the Bill passed by the Assembly and pending before the council at the time of its abolition or not
The Andhra Pradesh Government has forwarded a resolution passed by the State Assembly for the abolition of the Legislative Council to the Parliament. This move by the State Government came after the Legislative Council resisted the Bill relating to creation of three capitals passed by the Assembly by referring the same to a select committee.
For the uninitiated, the Chief Minister YS Jagan Mohan Reddy-led Government moved a historic Bill in the Legislative Assembly to have three separate capitals for the three arms of the State, with Amaravati as the legislative capital, Visakhapatnam as the executive capital and Kurnool as the judicial capital of Andhra Pradesh. With this decision, the upcoming city of Amaravati prematurely ceases to be the sole seat of power as was envisioned by the previous Government.
Termed as the Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020, the new Bill seeks to relocate the secretariat, offices of the heads of the Government departments and Raj Bhavan at Vizag, which is designated as the executive capital. By becoming home to the offices of Chief Minister, Governor and the entire top-rung of the official establishment, the port city of Vizag would become the new capital of Andhra Pradesh for all practical purposes.
Designated as the judicial capital, Kurnool city will have the State High Court and other judicial institutions under the new scheme of arrangement under the new legislation. The three cities are located in three distinct regions of the State — Andhra, North Coastal Andhra and Rayalaseema. Initially, the passage of the Bill was deemed only a formality, as the ruling YSR Congress Party commands a strength of 151 out of 175 seats in the State Assembly. Now, the fate of the Bill referred to the select committee by the Legislative Council, is in question when the State Assembly has passed a resolution for its dissolution. There is an argument that the Bill would not lapse on dissolution of the council.
We have been witnessing various other State Assemblies passing resolutions for abolition or creation of the Legislative Council as required under Article 169(1) of the Constitution of India. Though some of the States had passed resolutions, they were not pursued. In this background there is a necessity to examine the constitutional provisions and the legislations that were made by the Parliament earlier, abolishing or creating the Legislative Councils pursuant to the resolutions passed by the State Assembly.
Article 168 of the Constitution provides for two Houses, namely the Legislative Assembly (Lower House) and the Legislative Council (Upper House). However Article 169 enables the State Legislative Assembly to pass a resolution for abolition of the Legislative Council i.e, the second chamber of the legislature.
The procedure contained in the said Article shows that the Parliament may by law act upon the resolution passed by the Assembly. Article 169(2) contemplates that the law made by the Parliament under Article 169(1) shall contain such provisions for the amendment of the Constitution as may be necessary to give effect to the provisions of the law and also contain incidental and consequential provisions as the Parliament may deem necessary.
The word “may” used in Article 169(1) shows that the Parliament has discretionary powers either to accept or reject the resolution passed by the Assembly. It cannot be construed that on a resolution passed by the Assembly for abolition or creation of the Legislative Council the Parliament automatically accepts the same.
In 1985, before the State of Andhra Pradesh was split into two and the State of Telangana was born in 2014, the Assembly passed a resolution for abolition of the Legislative Council and the same was abolished on May 31, 1985 by making a law called the Andhra Pradesh Legislature Council (Abolition) Act, 1985. Section 7 of the said Act deals with the pending Bills. It contemplates that the Bills which originate from the Legislative Council and are pending at the time of abolition of the council, shall lapse and the Bills which originated from the Assembly and are pending in the council shall not lapse on its abolition. The then Chief Minister NT Rama Rao prevailed in pursuing the case with the then Prime Minister Rajiv Gandhi.
By making a law under Article 169(1) the name of the State having a Legislative Council shall be deleted from Article 168(1)(a) of the Constitution by amendment of Article 168(1)(a) of the Constitution. The Supreme Court in Kesavanand Bharathi’s case had examined various provisions facilitating amendments to the Constitution viz. Article 4, Article 169, V and VI Schedules of the Constitution and Article 368 of the Constitution.
The apex court had held that in case of the amendments which may be made in exercise of the powers under Article 4, Article 169, Para 7 of the Fifth Schedule and Para 21 of the Sixth Schedule shall not be deemed to be amendment of the Constitution for the purpose of Article 368. Therefore, the procedure contemplated under Article 368 of the Constitution for deletion of the name of the State contained in Article 168(1)(a) is not required to be followed. It is sufficient if a law is made under Article 169(1) of the Constitution.
Now, the issue that arises for consideration is with regard to the fate of pending Bills before the council on its abolition by making a law under Article 169(1) of the Constitution.
A Parliamentary Committee that went into the Bills introduced in respect of creation of Assam and Rajasthan councils suggested that the Center evolve a national policy for creation and abolition of Legislative Councils in States so that the second chamber does not depend on the “whims and fancies” of the newly-elected Government and the status of the council cannot be of a temporary nature depending upon the mood of the State Government.
Earlier when the law was made under Article 169(1) of the Constitution in relation to the abolition of the council in some States, a specific provision was incorporated with regard to the fate of the Bills pending before it at the time of abolition. Such a provision contemplated two instances.
First, the Bills that originate from the Assembly and which are pending in the council for consideration shall not lapse on abolition and shall be deemed to have been passed before such commencement by both Houses of the Legislature of the State. Second, the Bills that originate in the council and are pending at the time of abolition shall lapse.
This means that if a Bill is passed by the Assembly and is pending before the council at the time of the abolition of the council, the Bill is deemed to have been passed by both the Houses. Article 169(2) of the Constitution empowers the Parliament to incorporate provisions in the law made under Article 169(1) for abolition of the council as may deem necessary. It is the prerogative of the Parliament to incorporate a provision saving the Bill passed by the Assembly and pending before the council at the time of its abolition or not.
The Constitution of the country empowers the Parliament to take into consideration the nature of consequential provisions to be incorporated in the Act while abolishing the council. The totality of the circumstances may be taken into account while incorporating such a provision.
It is the prerogative of the Parliament to incorporate the nature of the provision vis.vis the fate of the Bill pending in the council. It is not mandatory that a saving provision protecting the Bills passed by the Assembly and pending before the Legislative Council should contain in the law made under Article 169(1) of the Constitution.
The Constitution does not mandate any such provision to be contained in the Abolition Act. It depends upon the persuasion of the State Government and if the Bill is referred to a Parliamentary Committee, the recommendation of the same would decide the fate of the council.
If the Legislative Council is not abolished and it does not agree with the Bill passed by the Assembly, the procedure contemplated under Article 197 of the Constitution may be invoked by the State Assembly by again passing the Bill and transmit the same to the council. Irrespective of the decision of the council, the Bill is deemed to have been passed.
(The writer is an advocate in the High Courts of Andhra Pradesh and Telangana)
