IN our current phase of being a federalized polity and globalized economy, an offbeat attempt to look at the Rajya Sabha as the federal second chamber is long overdue. How globalization and federalization have impacted the Rajya Sabha, which has been designed to represent the states comprising our Union, is a dimension worth exploring.
Erstwhile studies on the Rajya Sabha have reflected upon its role essentially in the parliamentary framework and as such, miscalculated its federal relevance. While W.H. Morris-Jones1 and Sandeep Shastri2 have argued that the Rajya Sabha is a secondary parliamentary chamber, it is its efficacy as an effective federal second chamber that needs to be interrogated. Morris-Jones furthermore, did not find its revisionary role – there was no space for technical revision and leisurely debate.3 However, the sole relevance that Morris-Jones was appreciative of was with respect to (a) a reduction of burden in legislation initiation as the site for the first initiation of bills in conjunction with the Lok Sabha, and (b) reinvigorating itself as a platform for grand and soaring debate.4
This paper attempts to flesh out the interpretation in a somewhat more comparative elaboration.5 Further, the paper undertakes a comparative analysis of the Canadian Senate, the US Senate and the German Bundesrat, which are uniquely federal second chambers, to endorse the claim that the Rajya Sabha too can be a federal second chamber that would accommodate India’s diversities.
So far the Rajya Sabha has been brought under an analytical scanner mainly as a house of revision and a forum for articulation of states rights. We revisit the Rajya Sabha from these angles plus look at its utility as an instrumentality of accommodating India‘s multicultural and regional diversities.
I am prompted to add this angle of inquiry as previous studies have generally concluded that the Rajya Sabha has neither distinguished itself as a council of revision nor as a defender of rights of the states of the Indian Union. Not that I entirely agree with these conclusions, as will become evident below, however, I would like to add a third possible term of reference for future research – the theme of diversity.
In the lexicon of comparative federalism, two prominent models of bicameralism exist: (i) parliamentary federal second chamber, and (ii) presidential federal second chamber. While India and Canada fall into the former category, the latter is largely represented by the United States and Switzerland. In parliamentary federal second chamber models, the popular parliamentary chamber forms the epicentre of decision-making. Federal second chambers in presidential mode are designed as an institution of checks and balances vis-à-vis the popular chamber.6
Nevertheless, the Australian Senate and German Bundesrat are unique in their own right. Despite being a parliamentary model, the Australian Senate is also directly elected by the people and invested with equal powers in line with the popular chamber. The only exception in power allocation lies with respect to taxation and key appropriation bills, which cannot be initiated but can be rejected by the Australian Senate.7 The German Bundesrat, in addition, is both a parliamentary and intergovernmental organ. Delegates of land governments are members of Bundesrat and they have to compulsorily vote according to the instructions of their governments. Factually speaking, they are both ministers of state governments and delegates to the Bundesrat.7
Historically speaking, Indian bicameralism (without federal content) was introduced primarily by the Government of India Act, 1919. A federal second chamber, unlike the US model, was recommended by the Motilal Nehru Committee Report, 1928. Further proposals for setting up a federal second chamber were put forward by the Government of India Act, 1935.
The rationality behind the composition of the Rajya Sabha under the 1950 Constitution was the federal representation of states on a territorial basis, and ensuring review/revision of bills received from the Lok Sabha. However, in the Constituent Assembly, considerations for federal representation outweighed the revisory role of the Rajya Sabha. This can be established by advocacy for equal representation to each state (Lokanath Misra, Orissa: General) or at least proportionately larger representation to smaller states (Shibban Lal Saksena, United Provinces: General), in constituent assembly debates.8
Both Gopalaswamy Ayyangar and Loknath Misra had endorsed the relevance of a second chamber in the draft constitution. While the former had hoped that the Rajya Sabha would ensure dignified debates (not found in the House of People) and prevent hasty legislation,9 the latter had believed that allocation of seats to representatives of the state in the Council of States should be on the basis of equal representation to each of the states. Such representatives would be no more than three.10
Two further points were added by the Sarkaria Commision Report: (i) mature input in the legislative and constituent process from more experienced persons represented there, and (ii) lending some degree of continuity to parliamentary work in view of the fact that the Rajya Sabha is a continuous chamber, partially renewed by one-third of members retiring every six years.11
Nevertheless, the federal character of the Rajya Sabha stands diluted due to extension of representation to states on the basis of population (Articles 4-I and 80-2 read with the Fourth Schedule), which is in contrast with the US Senate that gives equal representation to the states. Representation on the basis of population results in a marked disparity as far as number of constituencies per state in the Rajya Sabha is concerned. Whereas, states like Bihar, Maharashtra, Tamil Nadu and Uttar Pradesh have 16, 19, 18 and 31 constituencies allotted to them respectively in the Rajya Sabha, smaller states like Goa, Manipur, Tripura and Uttarakhand have been given 1, 1, 1 and 3 constituencies respectively in the present house.12
When it comes to money bills, they can only be introduced in the Lok Sabha and cannot be rejected by the Rajya Sabha. It can only send it back to the Lok Sabha for reconsideration. This implies that the Rajya Sabha plays no significant financial role. In 2017, the Union government’s endeavour to introduce the Aadhaar Act in Parliament as a money bill was legally questioned. Through this medium, the government has forestalled any opposition to the Aadhaar Act in the Rajya Sabha.13
However, the Constitution requires the Union Budget and the Railway Budget to be placed in both houses of Parliament. Further, any withdrawal of money by the government from the Consolidated Fund of India, is not possible unless an Appropriation Bill for this purpose has been approved by both the houses.
Furthermore, Rajya Sabha members find representation in two of the three salient financial committees of the Parliament, i.e. Committee on Public Accounts and Committee on Public Undertakings. Over time, the role of the Rajya Sabha in financial matters appears to have increased rather than decreased.14
A stand-off between the two houses of Parliament can only be resolved through a joint sitting.15 Constitutionally, however, a deadlock cannot be resolved through a joint sitting when it comes to a constitutional amendment. In this scenario, the Rajya Sabha can exercise a veto. A majoritarian government in the Lok Sabha can also be forced into accommodating regional interests when the opposition is in control of the Rajya Sabha.
The Rajya Sabha is endowed with three distinctive powers. First, authorizing the Parliament under Article 249 to legislate on any item in the state list. Second, creating an all-India service. Illustratively speaking, in 1950, 1951 and 1986, the Rajya Sabha centralized the political system to the detriment of its federal features by authorizing Parliament by a two-thirds vote to legislate on state subjects in the national interest, thus contributing to legislative centralism.16 As an illustration of the second special power mentioned above, the Rajya Sabha authorized the creation of a new all-India service – the Indian Forest Service – in 1966. In a third special power, the formality of parliamentary approval of a proclamation, when the Lok Sabha is dissolved, lies with the Rajya Sabha.
Another important aspect to note is that only the Rajya Sabha can constitutionally initiate or frame charges against the vice president, although no vice president or ex-officio vice president of this country has ever faced removal proceedings. Furthermore, just like in the Lok Sabha, the impeachment of a president on charges of violation of the Constitution lies with the Rajya Sabha. The process can be initiated in either of the two houses of Parliament. Again, there has been no impeachment proceeding against any president. Moreover, when it comes to the removal of Supreme Court judges, a notice has to be signed to that effect by at least 50 members of the Rajya Sabha. In that context, the Rajya Sabha has the power to pass a special address for the removal of judges of the Supreme Court and the High Courts.17
The impact of federalism on the working of the Rajya Sabha has barely been visible during one-party dominance, as both houses were more or less similar in terms of their membership. W.H. Morris-Jones was not appreciative of the federal role of the Rajya Sabha. He believed that the operational framework of the upper house did not make it a platform for the expression of regional demands.18
However, the multiparty system phase has instead endorsed the efficacy of the federal features of the Rajya Sabha. During this phase the house has been under the control of opposition parties that are stronger in the state legislatures. This has forced the ruling party with a majority in the Lok Sabha to work in cooperation with the oppositional majority in the Rajya Sabha in the passing of legislation and constitutional amendments. With the growing regionalization and federalization of the Indian political system, the federal relevance of the Rajya Sabha has only increased.19
A persistent depreciating trend of nominating persons who may have no connection with the state they are supposed to represent, continues. This only diminishes the growing federal role of the Rajya Sabha. Illustratively speaking, during Rajya Sabha elections, candidates, specifically from the national parties, are nominated on the basis of party patronage. Furthermore, the domiciliary requirement for Rajya Sabha MPs also witnessed a withering away with the 2003 constitutional amendment to the Representation of People Act, 1951. Furthermore, the five judge bench of the Supreme Court considered it apt to remove domiciliary eligibility in Kuldip Nayar vs Union of India and Others (2006).20 The non-secret ballot voting also made sure that state legislators did not transgress the party line. As a result, we witnessed the election of some business magnates and film actors from states where they were not residents. This only diminished the representative credentials of the Rajya Sabha as a federal second chamber.
The Supreme Court that had promoted the federal principle all these years, inexplicably delivered a retrogressive judgement in Kuldip Nayar vs Union of India and Others. The bench unanimously observed that the abolishment did not dismantle the federal feature of the house:
‘It is no part of federal principle that the representatives of the states must belong to that state. There is no such principle discernible as an essential attribute of federalism, even in the various examples of the upper chambers in other countries. The various constitutions of other countries show that residence in the matter of qualifications becomes a constitutional requirement only if it is expressly so stated in the constitution. Residence is not the essence of the structure of the upper house. The upper house will not collapse if residence as an element is removed. Therefore, it is not a prerequisite of federalism. It cannot be said that residential requirement for membership to the upper house is an essential basic feature of all federal constitutions. Hence, if the Indian Parliament, in its wisdom has chosen not to require a residential qualification, it would definitely not violate the basic feature of federalism. Our Constitution does not cease to be a federal constitution simply because a Rajya Sabha member does not “ordinarily reside” in the state from which he is elected.’21
Even the National Commission to Review the Working of the Constitution (NCRWC) Report 2002 had considered abolishment of domiciliary eligibility for Rajya Sabha membership as inappropriate as it compromised the basic federal character of this body.22
Moreover, instead of upholding the secret ballot, the bench decided to bring up open ballot, for elections to the Rajya Sabha. The bench observed:
‘The principle of secrecy is not an absolute principle. The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. Out of the two competing principles, the purity of election principle must have its way and the rule of secrecy cannot be pressed into service “to suppress a wrong coming to light and to protect a fraud on the election process”. If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it .In the present case in respect of the introduction of “open ballot” voting in elections to the Rajya Sabha for elimination of the evil of cross-voting for consideration, it can only be said that legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections.’23
The Rajya Sabha, akin to the Lok Sabha, is also a representative of the nation but it is a differentiated representation.24 Working within the strict confines of nationalism and federalism, the Rajya Sabha is finding it quite arduous to explore a relevant rationale in the Indian constitutional design and parliamentary-federal dynamics. Not surprisingly, even during the federal phase, when the Vajpayee-led National Democratic Alliance caretaker government needed federal democratic legitimacy during the Kargil war with Pakistan (1999), it called a chief ministers’ conference instead of a session of the Rajya Sabha (the Lok Sabha was dissolved during the period), as suggested in some quarters, even though a precedence of this kind of use of the federal second chamber exists in the emergency provisions in the nation (Article 352) and in a state (Article 356) in the Constitution.
The Rajya Sabha can be a worthy representative platform of citizen rights and for those living on the margins of exclusion. As a check on the majoritarian advances of the Lok Sabha, it can constitutionally uphold both the rule of law and public institutions, and not just on paper. It has actually ensured for itself such a significant role at various critical junctures. However, a pertinent question that we need to ask in the present scenario is whether such a role would be sufficient. It is important to revisit the nature and role of the Rajya Sabha. By introducing reforms, it should shed its image of being a parking lot for those who cannot ensure their election from a popular constituency.25
An important observation that has been made in this regard is with respect to the number of members that fall into the category of crorepatis in the present house. If we look into Rajya Sabha elections not long past, we find that as many as 30 candidates who were crorepatis, made it to the Rajya Sabha. Some of these MPs are from prominent parties like INC, BJP, BSP, IND and CPI.26
Furthermore, as many as 30 Rajya Sabha MPs are without domicile in the present house. These non-domiciled member candidates were elected in states like Uttar Pradesh, Haryana, Karnataka etc and are representing parties like the INC, BSP and BJP.27
An analysis of affidavits of 57 newly elected MPs of the Rajya Sabha in 2016 by the Association for Democratic Reforms (ADR), shows 23% among them had criminal cases (attempt to murder, cheating and dishonesty) pending against them. These MPs were elected from states like Uttar Pradesh, Bihar, Maharashtra, Tamil Nadu, Karnataka, Andhra Pradesh, among others.28
Ever since the Sarkaria Commission submitted its report in 1988, the reformation of the Rajya Sabha has been on the cards.29 A plethora of memorandums aimed at improving the Rajya Sabha as the federal second chamber, were submitted to the commission. There was an intention to enhance its role in the parliamentary process. However, the commission overlooked such proposals and instead decided to go along with the text of the Constitution, making the Lok Sabha the political stronghold of Parliament, while at the same time extending the status of the federal second chamber.
It was the M.M. Punchhi Commission report on centre-state relations in 2010,30 of which I was a task force member, that proposed varied changes in the existing arrangement. It suggested that the domicilary clause be retained and give equal representation to the states, panchayats and municipalities in the Rajya Sabha to redress the federal imbalance in the political system. In order to strengthen the role of the Rajya Sabha, the commission counselled for strengthening its committees with expert aides.
The urge to reform the upper house has become even more robust due to: (a) unstable coalitions at the Centre; (b) the practice of unchecked expenses and horse-trading by political parties; and (c) non-representation of state’s interests as nominated members are either politicians who lost their Lok Sabha elections or industrialists close to the party.31
In order to ensure the relevance of the Rajya Sabha today, two institutional reforms are necessary: First, enhancing its powers in line with those of the Lok Sabha. This would uplift its position in Parliament, making it indispensable with respect to consent in areas like finance and foreign affairs. Second, making it truly representative of states’ interests by democratizing seat allocation for smaller states.32
I think the foregoing recommendations of the Punchhi Commission are appropriate for India. It would not be desirable to go to the extent of emulating the Australian model (a US import of the Senate which is directly elected as well as almost equal to the popular chamber in legislative matters). I say this for two reasons. First, India is a variant of the parliamentary federal system in the Commonwealth political tradition. Second, compared to Australia, India is considerably more diverse and complex in cultural, social and regional terms. Hence, for us it is important to reconcile the parliamentary and federal principles of government in a more harmonious balance.
With the ever fluctuating political scenario and transformation of the party system at both the Centre and state levels, the role of the Rajya Sabha as a representative platform for the states has become even more significant. It is imperative to expand its electoral college to include local bodies in addition to the state legislatures in order to strengthen its federal relevance. This would be compatible with current efforts to put local self-governing institutions on a more secure constitutional footing. If the suggestion made by Rajni Kothari, to reconstitute it as a Pradesh Sabha with some representation to the local bodies, is implemented, the Rajya Sabha will then crucially impart substance to the rhetoric of multilevel federalism, which for all practical purposes, is a bi-level affair. The lower levels of our polity will get their due voice in legislation affecting them in this reconstituted Rajya Sabha.33
Further, if the twelve nominated members of the Rajya Sabha – until 2003, 105 such members have sat in the upper chamber – are nominated in a non-partisan way by presidential discretion rather than on the advice of the government of the day, the chamber of elders could be made more representative of the universe of letters and civil society.
Footnotes:
1. W.H. Morris-Jones, Parliament in India. Longmans Green, London, 1957.
2. Sandeep Shastri, Representing the States at the Federal Level: The Role of the Rajya Sabha’, in Jorg Luther, Paolo Passaglia and Rolando Tarchi (eds), The World of Second Chambers. Giuffre Editore, Milan, 2007.
3. W.H. Morris-Jones, op.cit., p. 256. For a similar interpretation, see M.P. Singh and Satish K. Jha (eds.), Prof. Chetakar Jha’s Indian Government and Politics: A Political Commentary. Research Press India, New Delhi, 2006, pp. 92-93. A reprint of Jha’s classic first published in 1960 by Novelty and Co., Patna.
4. W.H. Morris-Jones, op.cit., p. 258.
5. M.P. Singh, ‘The Parliament’, in M.P. Singh and Himanshu Roy (eds.), Indian Political System. Manak Publications, Delhi, 2005 (third revised edition).
6. The directly elected Australian Senate is unique in the sense that it coexists in a parliamentary federal system with a popularly elected parliamentary federal chamber. In view of the fact that there has been a persistent demand in Canada for a Triple E Senate – Elected, Equal, and Effective – the Australian experience is extremely interesting for comparative federal theory. The demand for a triple E Senate in Canada has been strong in the western provinces of British Columbia, Alberta, Saskatchewan and Manitoba who are uptight about their under-representation and control of the federal government mostly by the Liberal party until recently which is practically non-existent in the Canadian West. Liberals with a stronger presence in Ontario and Quebec often pack the Senate with their party faithful. For a positive evaluation of the Senate and its qualitative debates and excellent legislative committee work, thanks to the elder statesmen appointed therein by the party in power, see C.E.S. Franks, ‘The Canadian Senate in Modern Times’ (typescript), Department of Political Studies, Queen’s Univesity, 17 July 2001.
7. The German second chamber is thus an exercise in what the Canadians call ‘executive federalism’ with one modification that the forum of executive representation in the German case is via the second chamber of the Parliament rather than the first ministers’ or inter-ministerial conferences. The Indian system is patterned after the Canadian executive federalism. Also see, Wilfried Swenden, Federalism and Second Chambers: Regional Representation in Parliamentary Federations. The Australian Senate and German Bundesrat Compared. PIE-Peter Lang, Brussels and New York, 2004.
8. CAD, Book 2,Vol.VII, pp.1195-1231.
9. CAD, Book 1, 28 July 1947, p. 876. Emphasizing the role of Rajya Sabha, Dr S. Radhakrishnan, in the first session of the Rajya Sabha on 13 May 1952 said: ‘There is a general impression that this House cannot make or unmake governments and, therefore, it is a superfluous body. But, there are functions which a revising Chamber can fulfil fruitfully. Parliament is not only a legislative but a deliberative body. So far as its deliberative functions are concerned, it will be open to us to make very valuable contributions, and it will depend on our work whether we justify this two Chamber system, which is now an integral part of our Constitution. So, it is a test to which we are submitted. We are for the first time starting under the parliamentary system, with a second Chamber in the Centre and we should try to do everything in our power to justify to the public of this country that a second Chamber is essential to prevent hasty legislation.’ (Seminar on ‘Role and Relevance of Rajya Sabha in Indian Polity, 14 December 2003, Celebrations to Commemorate the 200th session of the Rajya Sabha. (Courtesy: Rajya Sabha Secretariat). Ibid., Book 2, January 1949, p. 1208.
10. Ibid., Book 2, 3 January 1949, p. 1208.
11. Commission on Centre-State Relations, Report, Part I, Government of India Press, Nasik, 1987, chair: Justice R.S. Sarkaria, p. 68.
12. Rajya Sabha, ‘Members of Rajya Sabha – statewise list’, http://164.100.47.5/Newmembers/memberstatewise.aspx (accessed 30 March 2019).
13. Suhrith Parthasarathy, ‘What Exactly is a Money Bill?’, The Hindu, 27 February 2017.
14. Seminar on ‘Role and Relevance of Raja Sabha in Indian Polity’, 14 December 2003, op. cit.
15. Till date, a joint session of the Parliament was held on three occasions: in 1961 over the Dowry Bill; in 1977 over a bill on banking, and in 2002 over anti-terrorism legislation.
16. Rajeev Dhavan and Rekha Saxena, ‘Republic of India’, in Katy Le Roy and Cheryl Saunders (eds.), A Global Dialogue on Federalism: Legislative, Executive and Judicial Governance in Federal Countries. Vol. 3, McGill Queen’s University Press, Montreal and Kingston, 2006, p. 175.
17. So far an impeachment motion has been initiated only against three judges in India, out of which, the case involving Justice Soumitra Sen of the Calcutta High Court, whose removal from office was sought for misappropriation of large sums of money in his capacity as the receiver appointed by the High Court of Calcutta, was voted in favour by the Rajya Sabha. The motion for his impeachment was to come up in the Lok Sabha but he resigned before that and thereafter, the impeachment motion lapsed. Another case, out of the three, involved Justice P.D. Dinakaran, Chief Justice of the Sikkim High Court, on charges of corruption and judicial misconduct. The Chairman, Rajya Sabha, set up another Inquiry Committee on 15 January 2010, to investigate the grounds on which his removal was sought. However, before the committee could complete its investigation and submit its report, he submitted his resignation on 29 July 2011.
18. W.H. Morris-Jones, op. cit., p. 256. For a similar interpretation, see M.P. Singh and Satish K. Jha (eds.), 2006, op. cit., pp. 92-93.
19. M.P. Singh, 2005, op.cit., p.117.
20. Kuldip Nayar and Others versus Union of India and Others, Supreme Court Cases (2006), 7 SCC.
21. Ibid., paras 73, 88 and 89, p. 5.
22. Report of the National Commission to Review the Working of the Constitution (NCRWC), 2002, chapter 5, para 5.11.5.
23. Kuldip Nayar and Others versus Union of India and Others, op. cit., paras 463, 464 and 421, p. 23.
24. B.L. Shankar and Valerian Rodrigues, The Indian Parliament: A Democracy at Work. Oxford University Press, New Delhi, 2011, pp. 297-298.
25. Valerian Rodrigues, ‘Revisiting the Rajya Sabha’s Role’, The Hindu, 18 October 2016.
26. Association for Democratic Reforms, Rajya Sabha Members-Asset Declaration, http://myneta.info/rajsab09aff/
27. Association for Democratic Reforms, Rajya Sabha Members-Without Domicile, http://myneta.info/rajsab09aff/
28. http://www.merinews.com/article/96-new-rajya-sabha-members-are-croropaties-23-having-criminal-cases-adr/15917503. shtml&cp (accessed on 25 March 2019).
29. Commission on Centre-State Relations, The Report, pts. I and II, Vol. I. Government of India Press, Nasik, 1987-88. Chair: Justice R.S. Sarkaria.
30. Commission on Centre-State Relations, Report, Vol.II, Constitutional Governance and the Management of Centre-State Relations, Chair Justice M.M. Punchhi, GoI, New Delhi, March 2010, para 10.7.08, p. 210.
31. Sudha Pai, ‘Reform, Not Abolition, is the Solution’, The Economic Times, 24 December 2010.
32. Ibid.
33. Rajni Kothari, Democratic Polity and Social Change in India: Crisis and Opportunities. Allied Publishers, Bombay, 1976 , p. 106.
