Article 328

Article 328 of the Constitution of India empowers the Legislature of a State to make laws governing elections to that State’s Legislative Assembly and Legislative Council, as applicable. It serves as the counterpart to Article 327, which confers similar powers upon Parliament for elections to the Union and State Legislatures.
This provision ensures that State Legislatures can address their own electoral requirements and frame regulations suited to local conditions, while maintaining conformity with the Constitution and any laws enacted by Parliament.

Constitutional Text

“Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State, including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.”

Key Features of Article 328

1. Empowerment of State Legislatures:
   • The Legislature of a State is authorised to make laws regarding elections to the Legislative Assembly and Legislative Council.
   • This includes provisions relating to the preparation of electoral rolls, voter qualifications, election procedures, and other matters necessary for the constitution of the Houses.
2. Subordinate Role to Parliamentary Legislation:
   • The State’s power to legislate under Article 328 is subject to the provisions of the Constitution and to any law made by Parliament under Article 327.
   • In case of inconsistency, Parliamentary law prevails over State legislation.
3. Scope and Applicability:
   • Article 328 applies to both:
     • The Legislative Assembly (Vidhan Sabha), and
     • The Legislative Council (Vidhan Parishad), where it exists.
4. Purpose:
   • The provision ensures that the States have autonomy to regulate their electoral processes within the constitutional framework, ensuring representation and efficiency in governance.

Objective and Constitutional Rationale

The framers of the Constitution intended to balance central uniformity with state flexibility in election management.

• While Article 327 gives Parliament overarching authority to legislate on elections across the country,
• Article 328 enables State Legislatures to fill in details or frame state-specific electoral laws in areas not covered by Parliament.

This ensures a harmonious division of powers between the Union and States in managing the electoral process, consistent with India’s federal structure.

Scope of Legislative Authority under Article 328

The powers of State Legislatures under Article 328 extend to:

1. Elections to State Legislative Bodies:
   • Framing laws concerning elections to both the Legislative Assembly and Legislative Council (where it exists).
2. Preparation of Electoral Rolls:
   • States can legislate on matters related to the maintenance and updating of electoral rolls, ensuring their accuracy and integrity.
3. Election Procedures:
   • Regulating nomination processes, campaign procedures, vote counting, and declaration of results.
4. Constitution of Houses:
   • Enacting provisions necessary for the constitution of the legislature, such as the representation of specific groups or regions within the State.

However, such legislation must always conform to the principles of free and fair elections guaranteed by the Constitution.

Relationship Between Articles 327 and 328

Thus, Article 328 operates concurrently with Article 327, but within a framework of Parliamentary supremacy to maintain electoral uniformity and consistency across India.

Legislative Framework under Article 328

While Parliament has legislated comprehensively on electoral matters through the Representation of the People Acts of 1950 and 1951, many States have also enacted laws and rules for:

• Conduct of elections to local bodies and State Legislatures;
• Delimitation of constituencies within the State;
• State Election Commissions and related administrative mechanisms (under Article 243K for Panchayat and municipal elections).

For example, States may pass laws for:

• The State Legislative Council elections where applicable (e.g., Maharashtra, Bihar, Uttar Pradesh);
• Managing by-elections or casual vacancies; and
• Regulating campaign finance or conduct specific to local contexts.

Judicial Interpretation and Landmark Judgments

1. Kuldip Nayar v. Union of India (2006)

• The Supreme Court upheld the constitutional validity of the Representation of the People (Amendment) Act, 2003, which introduced the open ballot system in Rajya Sabha elections.
• The Court observed that Parliament and State Legislatures have wide powers to regulate election-related matters, provided these laws uphold free and fair elections, a part of the basic structure of the Constitution.

2. Indira Gandhi v. Raj Narain (1975)

• The Supreme Court held that free and fair elections are an essential feature of democracy and part of the basic structure of the Constitution.
• Although this case pertained to parliamentary elections, the principle applies equally to State elections under Article 328.

3. Mohinder Singh Gill v. Chief Election Commissioner (1978)

• The Court reaffirmed that electoral fairness and voter equality must guide all laws framed under Articles 327 and 328.

These rulings underscore that the constitutional validity of election laws—whether made by Parliament or State Legislatures—depends on their adherence to the principles of free, fair, and inclusive elections.

Electoral Rolls under Article 328

Article 328, read with Articles 325 and 326, mandates that electoral rolls be:

• Uniform and non-discriminatory, ensuring inclusion without regard to religion, race, caste, or sex;
• Regularly revised and updated to reflect changes in population and residence;
• Maintained under the supervision of the Election Commission of India, ensuring standardisation across States.

This guarantees equal political participation and upholds the principle of universal adult suffrage.

Significance of Article 328

1. Ensures Democratic Governance at the State Level:
   • Provides a constitutional basis for States to regulate their own elections, ensuring local representation.
2. Balances Central and State Powers:
   • Reflects India’s federal character by distributing electoral powers between Parliament and State Legislatures.
3. Supports Electoral Autonomy:
   • Allows States to tailor electoral laws to address local political, social, and geographical realities.
4. Maintains Constitutional Uniformity:
   • Ensures State laws operate within the national framework of electoral integrity established by Parliament.
5. Protects the Integrity of Elections:
   • Reinforces the constitutional commitment to free, fair, and impartial elections at all levels of governance.

Limitations on State Legislative Powers

While Article 328 grants autonomy to States, this power is not absolute.

• Subordination to Parliament:
  • Any State law inconsistent with a Parliamentary law made under Article 327 shall be void to the extent of inconsistency (Article 254).
• Constitutional Boundaries:
  • State laws must respect Articles 325 and 326, ensuring non-discrimination and universal adult suffrage.
• Judicial Review:
  • All laws made under Article 328 are subject to scrutiny by the High Courts and Supreme Court to ensure compliance with constitutional principles.

Implementation and the Role of State Election Bodies

Though elections to the Legislative Assemblies and Councils fall under the Election Commission of India (ECI) under Article 324, States also maintain State Election Commissions (SECs) for local body elections (under Article 243K).
Under Article 328, State Legislatures may enact complementary laws to:

• Support the functioning of the ECI during State elections;
• Facilitate coordination between the ECI and SECs;
• Regulate electoral rolls, polling arrangements, and electoral offences.

Related Constitutional Articles

Conclusion

Article 328 is a vital component of India’s federal electoral framework, empowering State Legislatures to legislate on matters concerning their own elections while ensuring conformity with national laws and constitutional principles.