Is Rajya Sabha Losing Relevance ?
The recent biennial election of the Rajya Sabha (RS), the ‘permanent’ chamber of the Indian Parliament (India has given up the traditional nomenclature of ‘upper’ and ‘lower’ chamber) which re-constitutes itself by re-electing one-third of the house every two years, raises debate on its relevance. Interestingly, coming in the penultimate year of the Indian celebration for diamond jubilee of the Indian Parliament, this election has raised a number of issues relating to composition, role and functioning of the Council that was designed to represent States and their interests atop the Raisina Hill. I am not raising a debate on bicameralism either in India or in the context of legislatures generally, which is an established fact of constitutionalism designed to balance parliamentary functions of representation, accountability and governance, I am referring here to two developments of the past one decade.
First, the recent elections indicate that the Indian parties have increasingly been loosening their grip over legislators to vote for their party candidates on grounds that are not principle or ideology based. By corollary, poaching during the RS election is resorted to by all the parties. This is partly a result of the weakening of political parties as institutions, partly of the fracture in the party system and partly increasing role of money bags. Second, after a prolonged dilemma and debate following years of immoral violation with impunity, the parties with unprecedented consensus parted with the domicile criterion imposed by the Constitution of India for the RS candidature. Obviously, before we go ahead to analyse the emerging trends and their impact on the RS and overall parliamentary culture in India, we need to look at the design of the RS debated, discussed and enacted by the Indian Constitution six decades ago.
Designing Bicameralism and the Rajya Sabha
Having decided to opt for parliamentary democracy, because of familiarity as well as its potential to represent the Indian diversity, the Constituent Assembly chose bicameralism at the national level and made it optional at the state level. Bicameral legislatures developed due to twin necessities in liberal democracies to accommodate the social aristocracies and/or to create a representative space for federal/regional units at the national level. India adopted it for ‘revising’ and ‘federal’ purposes, in that order.
Gopalaswamy Ayyangar clearly stated: “The most that we expect… the Second Chamber to do is to… hold dignified debates on important issues and to delay legislation which might be the outcome of passions of the moment until the passions have subsided and calm consideration could be bestowed on the measures which will be before the Legislature.”
Overwhelming view in the Constituent Assembly did not appear to assign to the RS a pre-eminent federal role. Gopalaswamy Ayyangar and S Radhakrishnan (the first Chairman of the Rajya Sabha) perceived it to be a dignified, cooling and revising chamber. Yet he cautioned in his inaugural speech to the House, “There is a general impression that this House… is a superfluous body… 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.”
KT Shah and Lakshminarayan Sahu, had a federal role, with equal representation to each state in the House (like the US Senate), in mind. Loknath Mishra was emphatic that Since the Council of states is going to represent the states, it is but fair, to the state units that units should be dealt with as units and every unit is equally represented. However, overwhelmingly the RS was designed as the Second Chamber in the traditional sense, with an appearance of the ‘Council of States’. Stressing the special role assigned to the RS under Articles 249 and 312 of the Constitution, BR Ambedkar nonetheless asserted, ‘ex-hypothesis, the Upper Chamber represents the states and, therefore, their resolution would be tantamount to an authority given by the States’. The Sarkaria Commission, however, thought that its primary role was ‘… that of a second chamber of Parliament exercising legislative functions, more or less coordinate with the Lok Sabha’. It summarised its three-fold role as guiding the legislative process at the Union level by “the elders” who are disciplined to get involved in active politics and contest in direct elections to the Lok Sabha’; ‘to enable the state to give effective expression to their viewpoints at the parliamentary level; ‘to ensure some degree of continuity in the policies underlying parliamentary legislation; and ‘to function as House of Parliament which would more or less be coordinated with the Lok Sabha, with safeguards for speedy resolution of any conflicts between the two Houses on a legislation.’
Since the founding fathers did not design the RS as a federal chamber, does that mean that the residency criterion is superfluous and could be done away with? Before we jump to such a hasty conclusion, three important points must not be missed. First, the RS as the second chamber was being thought of in a strong Centre framework, which placed inherent limitations on its design and evolution since 1950. Second, the importance of the exclusive role of the RS under Articles 249 and 312, was highlighted by Ambedkar to underscore that it represented the states, must be kept in mind. Last, the residency qualification was brought in by Parliament while enacting the RPA after the Constitution was framed. Obviously, Parliament too underlined that aside from being the classic Second Chamber, the RS would also be an exclusive forum for the states in the country’s highest legislature.
The Design, Evolution and Incongruities
However, since the framers of the Indian Constitution were ambivalent on bicameralism in states they created bicameral legislatures in states in Article 168 and negated that basis in Article 169 by allowing the states to do away with Legislative Councils their commitment to bicameralism appears not so strong at the Union level too. Whether this design flaw has impacted the role and functions of the RS or not could be a matter of a detailed study. However, a second chamber for each state is strongly recommended in the context of the constitutional provisions for the local bodies, which must have representation in the state legislatures in the manner of the RS, strengthening in the process the RS too.
The emerging constitutional framework has given the RS coordinate powers with the Lok Sabha except on the Money Bill. It also does not have the power enjoyed by the Lok Sabha under Article 352(7) of disapproving continuance of state of emergency by a resolution making it obligatory for the President to revoke the proclamation. However, aside from significant power the RS enjoys in relation to a Bill seeking constitutional amendment (Article 368), its special powers under Articles 249 (authorising the Parliament to make laws on the subjects in the state list under extraordinary circumstances) and 312 (authorising the Parliament to create all-India services) confirm its status as the House representing
the states. That is why though the Constitution did not prescribe any residency criterion for the RS members and left the matter to Parliament, which inserted the ‘ordinarily resident’ clause in the RPA, perhaps due to the state-focused roles given to it in the above two articles. However, an analysis of the voting pattern in the RS on Article 249 by the Sarkaria Commission brings out that between 1950 and 1987 this provision was invoked only thrice, twice even before the RS was properly constituted in 1952. The voting has always been on party lines rather than on state related issues.
It is also significant to remember that the RS was designed as the second chamber in a strong centre framework. This created an inherent weakness in the role of the RS as the Council of States, despite the provisions that give it state-specific roles and powers. For, the exercise of those roles and powers too would be in the larger political frameworks.
Controversies, Consequence and Relevance
The controversies in the current RS biennial elections are an extension of the ones that have been associated with this House of ‘elders’ for the past two decades. The first set of controversies erupted about the residency rule, flouted with immunity by all the parties, erupted in December 1993, when the then CEC TN Seshan forwarded a list of 20 Rajya Sabha MPs, who appear(ed) prima facie not to be ordinarily resident in the state from which they were elected, for the period since January 1, 1988, to the Chief Electoral Officers of the States. However, practically each biennial election of the Rajya Sabha since 2000 faced this controversial debate because each vote assumed critical importance for the ruling party/ coalition at the Centre. Political rifts and dissensions in the state units of almost all the parties increased the uncertainties in the elections to the Rajya Sabha.
Since all the parties felt constrained by the residency criteria and all of them tried to bypass it to get their important leaders elected from any part of the country, a Bill was introduced in the 2001 winter session of Parliament to alter this rule. However, serious dissensions sent it to the Parliamentary Standing Committee of the Ministry of Home Affairs, which failed to bridge the differences and the Bill was eventually dropped. Since due to weaknesses in the party system politicking on this issue never ended, it was re-introduction in 2003 and its subsequent passage is testimony not only to the determination within the then ruling NDA, but across India’s political divide, about effecting a fundamental change in the nature and role of the Rajya Sabha. Further, the switch-over to open ballot to tighten the shackles of the party on MPs is open to debate as a sound democratic principle.
The latest biennial RS elections have shown that not only parties but the electorate MLAs as well as ambitious candidates are getting flirtatious. The turmoil in the BJP was compounded many times over when some party members did not like fielding of criminal lawyer Ram Jethmalani from Rajasthan, 66 of 79 party MLAs were herded into a hotel on the pretext of training, 13 still protested. Orissa witnessed a different set of drama where BJD, BJP and Congress were poaching on each other’s MLA’s and eventually the BJD had the last laugh. The most interesting aspect of these elections was the entry of money bags Vijay Mallya in Karnataka, Tara Ranjan Patnaik in Orissa, Uday Garudachar in Bihar, TV Maruti in Karnataka, and so on. These are acts of India’s parliamentary drama unveiling since the weakening and eventual fracture of the party system during 1980s and 1990s. The result of this drama has not been very healthy for India’s parliamentary politics, certainly not for the RS and its role.
Ever since the outset of the parliamentary system the RS has not evolved into a non-partisan forum for the states of India in the portals of India’s Parliament. Obviously, cross voting during the current RS poll, even strategic abstentions, helping a particular candidate in order to spite own party or its leaders to prove a point, is likely to make it a non-partisan body. The candidates who have secured their elections either by opening money bags, or by enticing parties with donations are unlikely to work for strengthening the parliamentary process or raising state related issues in the House. The RS members troop into the well of the House and shout slogans to match the lung power of their counterparts in the other House, the heat generated does not leave the RS as the cooling chamber. The parliamentary time wasted in the RS is no less than in the Lok Sabha, it has ceased to be the House of ‘elders’ that could guide the proceedings of the Lok Sabha. As the dust settles on the current biennial elections, India needs to introspect on the Parliament in general and the RS in particular.
By Ajay K Mehra
The writer is Director (Honourary), Centre for Public Affairs, Noida.