The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
(1) The total number of members in the Legislative Council of a State having such a Council shall not exceed *[one-third] of the total number of members in the Legislative Assembly of that State:
Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.
(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3).
(3) Of the total number of members of the Legislative Council of a State—
(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5).
(4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.
(5) The members to be nominated by the Governor under sub-clause (e) of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:—
Literature, science, art, co-operative movement and social service.
Article 171 provides the composition of the State Legislative Councils wherever these may exist. It says that the total membership of the Legislative Council of a State shall not exceed one‑third of the total membership of the Legislative Assembly of that State subject to a minimum of 40. The minimum and the maximum strength of the Council are thus fixed. One‑third of the members shall be elected by municipalities, district boards and other local authorities as specified by Parliament by law, one‑twelfth shall be elected by graduates’ constituency, one‑ twelfth by the teachers’ constituency, one‑third by members of the Legislative Assembly and the remainder, i.e., one‑sixth, shall be nominated by the Governor. This is, however, laid down as an interim arrangement until Parliament by law makes a provision in this regard. Elections to the Council are to be held by the system of proportional representation by single transferable vote.
From Court judgements, it is well-established that for being elected a member of the Legislative Council from the graduates’ constituency or the teachers’ constituency, one need not necessarily be a graduate or a teacher and an elector in the concerned constituency. Article 171(2) does not lay down any qualifications for membership. It only defines the electorates or the electoral constituencies for the Legislative Councils.
Meaning of electorate: The term “electorate” used in article 171(3)(a), (b) and (c) has neither been defined by the Constitution nor in any enactment by Parliament. The plain and ordinary meaning of the term ‘electorate’ is confined to the body of persons who elect. It does not contain within its ambit, the extended notion of a body of persons electing representatives “from among themselves”. Thus the use of the term “electorate” in article 171(3) could not by itself impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate.
Graduates as electors: Graduates are not an occupational or vocational group but merely a body of persons with an educational qualification. It would, therefore, not be correct to describe the additional representation sought to be given to them as an attempt to introduce the “functional” or “vocational” principle. On the fact of it, article 171 appears to be designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education.
Qualification for candidates: The presumption of graduates having better competence to elect a suitable representative is there, it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possess the right type of knowledge, experience and wisdom which satisfy certain standards. It may be that the Constitution makers, acting upon such a presumption, had intentionally, left the educational qualifications of a candidate for election from the graduates’ constituency un-specified. The omission by the Constitution makers or by Parliament to prescribe graduation as a qualification of the candidate for the graduates’ constituency must be deliberate. Whenever any qualification of the candidate was intended to be imposed, this was expressly done and not left to mere implication.
Election to Council: When elections are held under clauses (a), (b) and (c) of sub-article (3) of article 171, the candidate to be elected may either be a member of the electoral college or even an outsider. Political parties can sponsor candidates to the seats in the Council.
Elections to the Council of States and to Legislative Councils under article 171 are held according to the system of proportional representation by single transferable vote. These can be set aside only for non-compliance with statutory provisions if the result of the election is materially affected.
Nominations to the Council: Nominations to he Legislative Council under article 171(3) (e) and 171(5) are not subject to judicial review and challenge on grounds like that the Chief Minister did not refer the matter to the Governor. It must be presumed that the nominations are made by the Governor on the advice of the Council of Ministers. The advice tendered by Ministers to the Governor cannot be enquired into by the court (article 163).4 The provision for nomination to the Legislative Council has not been made to enable some Ministers to enter the legislature by the backdoor. Yet court cannot interfere in the absence of any illegality as contrasted from “impropriety”. While the Governor was not subject to court jurisdiction, a writ of quo warranto could be issued to the nominated person on grounds of illegality etc.
Source: Dr. Subhash C Kashyap