Political Philosophy
Finally Disagreed: The Deadlock Article 108 Hands to the President, and the One Article 197 Leaves With the Assembly
29 October 2026 · 23 min read
A legislature with two chambers is a decision to make law harder to pass. The second chamber exists to be capable of saying no, and a second chamber that cannot say no is not a chamber. But a constitution that creates one has to answer the question that follows immediately: what happens when it does say no, and the first chamber does not change its mind.
There are only three answers available. The second chamber's refusal can be final, which gives it a veto. It can be made to expire, which gives it a delay. Or the two chambers can be merged into a single body and the question put to all of them together, which gives it a vote it will usually lose. Each answer settles who governs when the two Houses do not agree, and the choice between them is not a matter of machinery. It is a statement about what the second chamber was for.
The Constitution of India uses all three. It sorts them by the subject of the Bill, and it sorts them differently for Parliament and for the Legislature of a State.
What Article 108 provides
Article 107(2) states the ordinary rule: "Subject to the provisions of articles 108 and 109, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses." Agreement is required. The two named articles are the two ways of doing without it.
Article 108(1) sets out when the second of them becomes available. It applies after a Bill has been passed by one House and transmitted to the other House, and it lists three grounds: "(a) the Bill is rejected by the other House; or (b) the Houses have finally disagreed as to the amendments to be made in the Bill; or (c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it".
On any of them, "the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill". A proviso follows: "Provided that nothing in this clause shall apply to a Money Bill."
Clause (2) excludes from the six months any period during which the receiving House is prorogued or adjourned for more than four consecutive days. Clause (3) freezes the Bill in both Houses once the President has notified his intention, and leaves him to summon the joint sitting "at any time after the date of his notification". Clause (5) provides that the sitting may be held and the Bill passed at it even if the House of the People has been dissolved in the meantime. The disqualifying event in clause (1) is therefore a dissolution before the notification and not after it. The clause says "elapsed" where Article 107(5), the provision that actually makes a Bill lapse on a dissolution, says "lapse". Article 108 has never been amended, so the word has stood as printed since the Constitution commenced.
Nothing in the three grounds requires the President to wait. Where the Bill has been rejected, or the Houses have finally disagreed over amendments, the article is available at once. The six months in sub-clause (c) is not a cooling period before a remedy; it is the length of the inaction that constitutes the third ground.
Clause (4) is the operative rule, and the whole design is in its first words: "If at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses."
Not a majority in each House. Not a majority of the total membership. A majority of whoever, out of the combined membership of the two Houses, attends and votes. The clause does not reconcile the Houses; it dissolves the distinction between them for the length of one sitting and takes a single count.
The remainder of clause (4) limits what may be moved at that sitting. Where the Bill was not returned with amendments, "no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill"; where it was returned, only those amendments and "such other amendments as are relevant to the matters with respect to which the Houses have not agreed". The clause ends: "and the decision of the person presiding as to the amendments which are admissible under this clause shall be final."
Whose chamber the joint sitting is
Who presides is settled by Article 118(4): "At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside." The rules referred to are not made by either House. Clause (3) provides: "The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses."
The Rajya Sabha Secretariat's own account of the practice, in its publication Rajya Sabha at Work, records what those rules produce. The Secretary-General of the Lok Sabha acts as Secretary-General at the joint sitting and issues the summons to the members of both Houses. The Speaker, and in his absence the Deputy Speaker of the Lok Sabha, presides; the Deputy Chairman of the Rajya Sabha comes third. "The procedure of the Lok Sabha applies at a joint sitting with such modifications and variations as the Speaker may consider necessary or appropriate." The Speaker fixes the hour of adjournment. And: "The quorum to constitute a joint sitting is one-tenth of the total number of members of the two Houses."
So the body that meets is not a third chamber with rules of its own. It is the House of the People, enlarged by the membership of the Council of States, sitting under the lower House's procedure, presided over by the lower House's Speaker, serviced by the lower House's Secretary-General, and summoned under rules made by the executive.
The arithmetic completes the point. Article 81(1) caps the House of the People at five hundred and thirty members from the States and twenty from the Union territories. Article 80(1) caps the Council of States at twelve nominated members and two hundred and thirty-eight representatives of the States and Union territories. Article 81(1) is expressed to be subject to Article 331, which allowed the President to nominate up to two members of the Anglo-Indian community; that representation ceased under Article 334, which fixes its term at seventy years from the commencement of the Constitution. At the present ceilings the combined body has eight hundred members, of whom five hundred and fifty sit in the lower House.
Take a Bill the Council of States has rejected, and suppose every member of both Houses attends the joint sitting and votes. All two hundred and fifty members of the Council vote against. The Bill carries on two hundred and fifty-one votes. The Speaker, under Article 100(1), "shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes", so those votes must come from the other five hundred and forty-nine members of the House of the People. Two hundred and fifty-one out of five hundred and forty-nine is fewer than forty-six in every hundred.
The votes of fewer than half the members of the House of the People are therefore enough, at a joint sitting, to carry a Bill that every member of the Council of States has voted to reject. That is not a defect in the drafting. It is the arrangement working as designed: the clause was written to break a deadlock, and a deadlock-breaker that the blocking chamber could win would break nothing. But it means the Council's vote at a joint sitting is not a check. It is a formality in which the Council is permitted to record its objection inside the body that overrides it.
The decision that is not the legislature's
Article 108 does not operate on its own. Clauses (1) and (3) both turn on the President — he "may" notify his intention, and he "may at any time after the date of his notification" summon the Houses. Nothing in the article obliges him to do either, and nothing fixes a time within which he must decide.
Rajya Sabha at Work states the position without qualification: "the provision of calling a joint sitting is only an enabling one, empowering the President to take steps for resolving legislative deadlock between the Houses. It is not obligatory upon the President to resort to the said provision." The same chapter, in an earlier passage listing the President's functions in relation to Parliament, says instead that "In the case of disagreement between the two Houses on a Bill (other than a Money Bill), the President summons a joint sitting of both Houses." The two sentences cannot both be right, and the later and fuller one is the one that matches the text of the article. The slip is worth noticing only because it is the natural one: a power which is in practice exercised whenever the government wants it exercised reads, after a while, like a duty.
What the discretion actually means follows from Article 74(1): "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice". The proviso permits the President to require reconsideration and then obliges him to act on the advice tendered after it. Article 74(2) puts the advice beyond inquiry in any court.
The consequence is that the decision whether to convene the body that can override the Council of States belongs to the Union executive — which is to say, in every real case, to the government whose Bill the Council of States has just rejected. The party that lost the vote in the second chamber chooses whether the vote stands.
Set against that, the position in a State is the opposite, and the contrast is the most instructive thing in this part of the Constitution.
What a State gets instead
There is no joint sitting in a State. Article 197, which carries the marginal heading "Restriction on powers of Legislative Council as to Bills other than Money Bills", provides something structurally different.
Clause (1) applies where a Bill passed by the Legislative Assembly and transmitted to the Legislative Council is rejected by the Council, or has been laid before it for more than three months without being passed, or is passed with amendments to which the Assembly does not agree. In any of those cases "the Legislative Assembly may, subject to the rules regulating its procedure, pass the Bill again in the same or in any subsequent session with or without such amendments, if any, as have been made, suggested or agreed to by the Legislative Council and then transmit the Bill as so passed to the Legislative Council."
Clause (2) applies after that second passage. If the Council again rejects the Bill, or lets more than one month elapse, or returns it with amendments the Assembly does not accept, then "the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time". Clause (3): "Nothing in this article shall apply to a Money Bill."
Four differences from Article 108 are worth separating, because together they describe a different theory of what a second chamber is.
The first is the trigger. On the inaction ground, the receiving House at the Union has six months; a Legislative Council has three for the first round and one for the second. On the rejection ground neither has any time at all: the Assembly may pass the Bill again "in the same or in any subsequent session", which is to say on the same day the Council throws it out.
The second is who acts. At the Union the President acts; in a State the Assembly acts. The Governor has no part in Article 197 at all. The remedy for a deadlock between the two Houses of a State Legislature is in the hands of one of those Houses, and the executive is not consulted.
The third is what the remedy consists of. Article 108 produces a vote; Article 197 produces a deeming. In a State the Council's refusal is not outvoted — it is simply exhausted. Nobody counts it. Once the Assembly has passed the Bill a second time and the Council has done any of the three things clause (2) describes, the Bill is passed, and the Council's members have had no occasion to vote on the question of whether their objection should prevail.
The fourth is that Article 108 can fail. A joint sitting is a vote, and a vote can be lost; a government that misjudges the combined arithmetic, or the discipline of its own members, does not get its Bill. Article 197 contains no step at which the Council can defeat anything. The only vote in it is the Assembly's own second passage, which requires nothing beyond the ordinary majority in Article 189(1), and after it the Council's choices are exhausted: reject, delay, or amend, and all three lead to the same deeming.
Article 189(1) itself registers the absence. Article 100(1), its Union counterpart, applies the default majority rule to "any sitting of either House or joint sitting of the Houses". Article 189(1) applies it to "any sitting of a House of the Legislature of a State". The words that contemplate a combined chamber appear in one and not the other, because in a State there is nothing for them to describe.
The three tiers of a second chamber's power
Put the Money Bill provisions back alongside the rest, and the position of each second chamber resolves into three tiers.
On a Money Bill, the Council of States has fourteen days and no more. Article 109(2) requires it to return the Bill with its recommendations within that period, and the House of the People "may thereupon either accept or reject all or any of the recommendations". Clause (4) provides that if the House of the People accepts none of them, the Bill is deemed passed by both Houses in the form in which the House of the People passed it; clause (5) does the same if the Council simply fails to return it. Article 198 is the identical provision for a Legislative Council. On money, neither second chamber has a power; it has an opportunity to be heard.
Which Bills fall into that tier is not decided in the second chamber either. Article 110(3) provides: "If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final." Clause (4) requires the certificate of the Speaker, signed by him, to be endorsed on every Money Bill when it is transmitted to the Council of States and again when it is presented to the President for assent. Articles 199(3) and (4) say the same for a State, with the Speaker of the Legislative Assembly. So the exclusion of Money Bills from Article 108 is operated by a certificate from the officer who would otherwise preside at the joint sitting. The presiding officer of the chamber that wants the Bill decides whether the other chamber gets a vote on it at all.
On an ordinary Bill, the Council of States can reject, and be outvoted at a joint sitting if the executive chooses to convene one. A Legislative Council can delay for three months and then one month, and is then bypassed.
On an amendment to the Constitution, the position inverts. Article 368(2) provides that an amendment may be initiated only by the introduction of a Bill in either House, "and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting", then "it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill".
Two majorities, both computed House by House: a majority of the total membership of that House, and two-thirds of the members of that House present and voting. A combined count cannot satisfy a requirement framed in those terms, because there is no such thing as the total membership of a joint sitting for this purpose and no way to extract from a single division the two House-specific majorities the article demands. That is why a Constitution Amendment Bill cannot be sent to a joint sitting, and Rajya Sabha at Work describes Article 108 accordingly, as a mechanism for disagreement "in respect of a Bill, other than a Money Bill or a Constitution Amendment Bill".
The textual route to that conclusion is worth stating precisely, because Article 108 does not say it. Article 108's only express exclusion is the proviso to clause (1), and the proviso names Money Bills alone. The reason an amendment Bill is outside the article is not that the article excludes it but that Article 368(2) asks for something a joint sitting structurally cannot deliver. The Constitution's largest exception to its own deadlock machinery is produced by the arithmetic of another article, and is nowhere written down.
The result is an inversion. The Council of States is weakest on money, where the Constitution gives it fourteen days; stronger on ordinary legislation, where it can be overridden but only by a positive act of the executive and a vote; and strongest on constitutional amendment, where its refusal is absolute and nothing in the Constitution can get past it. A second chamber designed as a revising body for ordinary legislation turns out to hold its only unqualified veto over the constituent power.
For a Legislative Council, the inversion is sharper, because at the top of the scale its position is not merely weak but undetermined. The proviso to Article 368(2) requires, for a listed class of amendments, that the amendment "shall also require to be ratified by the Legislatures of not less than one-half of the States" by resolutions passed by those Legislatures before the Bill is presented to the President for assent. Article 168(1) provides that the Legislature of a State "shall consist of the Governor, and" — in the States that have one — a Legislative Council and a Legislative Assembly. Whether a ratifying resolution in such a State requires the Council's concurrence is not answered by either provision. Article 197 cannot supply the answer, because a resolution is not a Bill and Article 197 operates only on Bills.
And one tier further down, a Legislative Council cannot protect its own existence. Article 169(1) provides that Parliament may by law abolish the Legislative Council of a State "if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting". Clause (3) adds that no such law "shall be deemed to be an amendment of this Constitution for the purposes of article 368". The chamber whose function is to check the Assembly may be dissolved out of existence on the Assembly's own resolution, by a law that the Constitution declines to treat as an amendment of itself.
The footnotes to Article 168 record that this is not theoretical. Four Councils have been abolished by Act of Parliament: West Bengal's by the West Bengal Legislative Council (Abolition) Act, 1969 with effect from 1 August 1969, Punjab's by the Punjab Legislative Council (Abolition) Act, 1969 with effect from 7 January 1970, Andhra Pradesh's by the Andhra Pradesh Legislative Council (Abolition) Act, 1985 with effect from 1 June 1985, and Tamil Nadu's by the Tamil Nadu Legislative Council (Abolition) Act, 1986 with effect from 1 November 1986. Andhra Pradesh's was created again by the Andhra Pradesh Legislative Council Act, 2005, with effect from 30 March 2007.
The same footnotes record one more thing, which belongs in a different category. The words "Tamil Nadu" were inserted back into the list in Article 168(1) by section 3 of the Tamil Nadu Legislative Council Act, 2010, and the footnote attached to them gives the commencement as "date to be notified" — the form the compilers use for a provision for which no day has been appointed. The words are printed in the text all the same, and the next footnote records that section 96 of the Andhra Pradesh Reorganisation Act, 2014 substituted "Tamil Nadu, Telangana" for "Tamil Nadu" with effect from 1 June 2014. What state the entry is in after that is not a question the compilation answers, and it is not one that needs answering here.
The point that survives it is simple enough. A State's second chamber may be created by a law Parliament has passed on that State's own resolution and still not exist, because the Act waits on a notification that has not come in sixteen years. Article 169 gives the Assembly the power to ask and Parliament the power to legislate. Neither of them holds the day on which the law begins to operate.
The trigger nobody uses
Of the three grounds in Article 108(1), two require an actual disagreement: rejection, or a final disagreement over amendments. The third requires only the passage of time. Six months from reception, without the Bill being passed, and the article is available — whatever the reason for the delay, and whether or not the receiving House has taken any position on the Bill at all.
Rajya Sabha at Work records what has become of that ground. It notes first that the lapse of six months does not disable the second House: "the provision does not bar the second House from passing a Bill after lapse of six months provided that it has not lapsed due to dissolution of the Lok Sabha or the President has not already notified his intention to convene a joint sitting." It then lists instances in which a House did exactly that. The Representation of the People (Second Amendment) Bill, 1964, passed by the Lok Sabha on 27 November 1964 and by the Rajya Sabha on 2 September 1965. The Architects (Amendment) Bill, 1980, passed by the Rajya Sabha on 3 December 1980 and by the Lok Sabha on 29 April 1982. The Sales Promotion Employees (Conditions of Service) Amendment Bill, 1980, passed by the Rajya Sabha on 11 December 1980 and by the Lok Sabha on 16 October 1982. The Repealing and Amending Bill, 1986, passed by the Rajya Sabha on 28 July 1986 and by the Lok Sabha on 23 February 1988. The Prevention of Corruption Bill, 1987, passed by the Lok Sabha on 7 May 1987 and by the Rajya Sabha on 11 August 1988. There are others in the same list.
In each of those cases the condition in sub-clause (c) was satisfied, in some by a margin of years. In none of them was a joint sitting notified. The official list of Bills passed out of time is longer than the official list of joint sittings, and no joint sitting appears on it. That is a reasonable indication of what the article is actually for. It is not a remedy for Bills that stall. It is a remedy for Bills that are refused.
Disagreement proper — a rejection, or a final failure to agree on amendments — has produced three occasions in seventy-six years, and Rajya Sabha at Work sets out all three. The first arose from a disagreement over amendments to the Dowry Prohibition Bill, 1959 — sub-clause (b) — and the sittings were held in the Central Hall on 6 and 9 May 1961, the Bill being passed on the later day with one of the Council's three amendments accepted. The second followed the Rajya Sabha's negativing of the motion for consideration of the Banking Service Commission (Repeal) Bill, 1977 on 8 December 1977; the joint sitting was held on 16 May 1978. The third followed the Rajya Sabha's rejection, on 21 March 2002, of the Prevention of Terrorism Bill, 2002, which the Lok Sabha had passed; the joint sitting was held on 26 March 2002 and the Bill was passed in the form in which the Lok Sabha had passed it.
Three occasions, and the interval between the second and the third was nearly twenty-four years. A provision used once a generation is not a working part of the legislative process. It is a reserve power, and the question a reserve power raises is not how often it is used but what its availability does to the body it is held over.
What the arrangement assumes
The Council of States is not a chamber of equal standing that happens to lose on the numbers. Article 108 does not treat it as one, and was not drafted to. The device it creates takes a chamber that has refused a Bill, places its members inside a larger body under the other chamber's Speaker and the other chamber's procedure, and resolves the disagreement by counting heads in a room where the refusing chamber is outnumbered by more than two to one. Whether that happens at all is for the executive to decide, on advice no court may inquire into.
None of that is irregular. It follows from a prior choice, which is that the Council of States is an indirectly elected chamber representing the States, and the House of the People is directly elected by the population. A constitution that gave the former a final say over ordinary legislation would be preferring one to the other on questions of ordinary policy, and the draftsmen declined to do that. Article 108 is the mechanism by which the preference is enforced, and Article 197 enforces the same preference in a State by a blunter route.
The observation is narrower than a criticism. It is that the Constitution's account of what a second chamber is for can be read off the exceptions rather than the rule. On the work a revising chamber is ordinarily thought to exist for — scrutinising ordinary legislation, slowing it, improving it — its refusal can be set aside by the government of the day. On the one subject where a second chamber is not ordinarily expected to be decisive at all — altering the Constitution — its refusal is absolute and cannot be set aside by anybody. And in a State, the second chamber holds no final power over anything, is bypassed without a vote, and continues to exist only for as long as the chamber it was created to check declines to resolve on its abolition.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.