Article 438 of the Costitution of India with Case law
⚖️ Article 438 of the Constitution of India – Provision for Legislative Councils in States (Repealed)
📜 Text of Article 438 (Prior to Repeal):
Article 438. Provision with respect to the establishment of Legislative Councils in States in Part A of the First Schedule.
(1) Parliament may by law provide for the creation of a Legislative Council in any of the States in Part A of the First Schedule, and for matters connected therewith.
(2) Any law so made shall not be deemed to be an amendment of this Constitution for the purposes of Article 368.
🧾 Explanation:
Article 438 empowered Parliament to create Legislative Councils (Vidhan Parishads) in Part A States.
This article was transitional and enabling, to facilitate bicameral legislatures in Indian states where applicable.
It specifically excluded the process under Article 368, meaning such laws did not need a constitutional amendment procedure.
❌ Current Status:
Article 438 was repealed by the 7th Constitutional Amendment Act, 1956.
The repeal was part of a broader restructuring of Indian states following the States Reorganisation Act, 1956.
✅ Post-Repeal Provision:
The substance of Article 438 was incorporated into Article 169, which now governs:
Creation and abolition of Legislative Councils in states.
Requires a resolution passed by the State Legislative Assembly with a special majority.
⚖️ Case Law (Relevant to Subject Matter):
Although Article 438 is repealed, related judicial rulings reference the creation or abolition of Legislative Councils:
🔹 K. Nagaraj v. State of Andhra Pradesh (1985)
Citation: AIR 1985 SC 551
Issue: Constitutionality of the abolition of the Andhra Pradesh Legislative Council.
Held: The Supreme Court upheld the power of Parliament under Article 169 to abolish a Legislative Council based on a resolution passed by the State Legislative Assembly.
Relevance: Though Article 438 was repealed, this case affirmed the principle of legislative flexibility initially addressed under Article 438.
🔹 Union of India v. Harbhajan Singh Dhillon (1972)
Citation: AIR 1972 SC 1061
Context: Clarified that laws made under enabling provisions like Article 169 (and formerly 438) do not amount to constitutional amendments under Article 368.
📚 Summary Table:
| Feature | Details |
|---|---|
| Article | 438 |
| Topic | Legislative Councils in States |
| Status | ❌ Repealed (1956) |
| Repealed by | 7th Constitutional Amendment Act |
| Replaced by | Article 169 |
| Related Case Law | K. Nagaraj v. State of A.P. (1985) |
| Impact | Facilitated early bicameralism in state legislatures |
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