Gaining the Upper Hand

Will the Rajya Sabha finally come into its own?

Modi assured the members of the Rajya Sabha of his belief in cooperative federalism during his 11 June speech. PTI Photo / TV GRAB
01 July, 2014

SPEAKING TO THE RAJYA SABHA on the evening of 11 June, the new prime minister, Narendra Modi, chose his words with some care. His inaugural speech to the upper house of Parliament reiterated some of the themes of the president’s address to both houses the day before—the need for inclusive development, an acknowledgement of regional disparities—as well as a sentiment particularly relevant to the council of states. “I have experienced how the requests of the state have not been approved for personal reasons,” Modi said, referring to his past work as Gujarat’s chief minister. “I believe in cooperative federalism. We need to work with the states.”

The import of his words was not lost on the Rajya Sabha’s current members, most of whom are elected by state legislatures, with each state allotted a number of seats proportionate to its population (a small number of the 250 seats are filled by presidential nomination). Unlike the Lok Sabha, which is reelected every five years, one third of the Rajya Sabha is elected every two years, and members have six-year terms. All major legislation, except for most budgetary and financial matters, must pass the upper house, which is designed to provide representation for the states in creating central legislation. While it has the power to scuttle bills passed by the Lok Sabha, the Rajya Sabha has predominantly been perceived as a rubber-stamping authority, a token nod to federalism—or, at best, a route for technocrats such as Manmohan Singh and Arun Jaitley to wield legislative authority despite lacking the mass support to win elections.

For most of India’s post-Independence history, with the Congress party dominating both the centre and the states, the issue of divergent views between the two houses has largely been moot. But the slow erosion of the party’s control during the coalition era, coupled with its deficiency in cohesive leadership during the last United Progressive Alliance government, has dramatically altered the terrain. The 15th Lok Sabha was characterised by a robust opposition, but also by frequent disruption and the derailment of much legislative work. It is in this context that the BJP has emerged as the single largest party in the lower house, facing a fragmented and leaderless opposition.

The BJP’s success has also brought about an unprecedented division between the two houses: for the first time in India’s history, a single party with a majority in the lower house forms only a minority in the Rajya Sabha. While the BJP-led National Democratic Alliance has 336 of the 543 seats in the Lok Sabha, the BJP and its pre-poll allies have just 57 seats in the Rajya Sabha. The BJP would need the backing of hostile regional parties—such as the Samajwadi Party, the Bahujan Samaj Party and the Trinamool Congress—to pass legislation in the upper house.

In the current formulation, the Rajya Sabha could become a crucial site of credible opposition to the NDA. If its members choose to take on this role, the council of states may fulfil its constitutionally envisioned mandate, as a tempering force to the mood of the moment, for the first time in its history. Indeed, the current schism between the houses should not be seen as some deviation from democratic principles, but as the perfect test of the ideological role of the Rajya Sabha as an indirectly-elected complement, and counter, to the Lok Sabha.

This independent nature of the Rajya Sabha could only emerge after a general election when a national party bucked the trends of recent state elections. The difference in how the two houses are constituted reflects the principle of checks and balances at the heart of the Constitution. If the Lok Sabha is an indication of the mood of the nation at a particular point of time, the Rajya Sabha is a summation of the concerns of the various regions of the country over a period of time. The roots of this model lie not in the British House of Lords but rather in the United States Senate, whose members, like Rajya Sabha MPs, have six-year terms and must be at least 30 years old. A third of Senate terms expire every two years, and, until the twentieth century, senators were also elected by state legislatures.

At times of politically polarised government in the United States, the Senate has often been a potent force for stymieing legislation. In recent years, this has contributed to frequent deadlock in the US government, akin to the obstructionism in the Indian Parliament. Yet the Indian Constitution envisages a remedy for any impasse between the two houses: the joint sitting of both, in which a simple majority of those present and voting shall prevail. In a 1949 speech to India’s Constituent Assembly, Saurashtra representative Chimanlal Chakubhai Shah argued for a mechanism that could break the potential deadlocks of the American system but would also go beyond the British model, wherein any bill passed by the Commons becomes law after a certain period of time. “In a Federal Constitution, the Upper House is composed of the representatives of the various units or states. It is not like the House of Lords which is hereditary or … conservative,” he said. “The object of providing an Upper House in the Centre is to see that the States’ voice or the voice of the units is adequately represented.” The joint session, Shah continued, “is not a very ideal solution no doubt but it is a solution which is as good as possibly can be conceived of.’’

The joint session tends to favour the Lok Sabha, which has more than twice the strength of the upper house. However, Parliament has only resorted to this measure thrice since Independence. Of these joint sittings—to pass the Dowry Prohibition Act (1961), the Banking Service Commission (Repeal) Bill (1978) and the Prevention of Terrorism Act (2002)—the last saw by far the most heated deliberation and debate. At the time, under the previous NDA regime, POTA was in force as an ordinance after being rejected by the Rajya Sabha. While public memory of the sitting is dominated by the acrimonious exchange between Atal Behari Vajpayee, then the prime minister, and the leader of the opposition, Sonia Gandhi, it was also marked by some reflection on the uses and pitfalls of the joint session.

Gandhi called the event “a historic occasion,” but was concerned that the government had brandished “the threat of a Joint Session” as “an attempt to intimidate the Houses with arithmetic superiority and to reduce them both to rubber stamps.” Leaders of the opposition parties argued that a joint select committee ought to have been formed to amend the bill. The ultimate passage of POTA emphasised the limits imposed on the federal nature of the Indian Constitution by the joint session, because most states not controlled by the BJP had strong views against the provision. Yet in providing a forum for registering dissent, the 2002 joint session constituted an important component of the democratic process. Jaitley unwittingly pointed to the importance of dissent during the session when he cited post-9/11 legislation in the United States as an example of good lawmaking:

An anti-terrorism law already existed in America, yet they have brought a new law … when that law was brought before the Senate, only one vote was cast against it … On the other hand, in our country this law was defeated in the Rajya Sabha and, paradoxically, the spokespersons of the parties went to the extent of saying that they wanted to show to the world that this country was divided over this issue.

Jaitley would have done well to read what James Madison, the political theorist and fourth president of the United States, wrote in the Federalist Papers in 1788 to justify the purpose of the US upper house:

… there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?

This becomes especially relevant now, when the Rajya Sabha stands in opposition to the mood of the moment reflected in the Lok Sabha. As things stand, even if the BJP replicates its national success in a number of states, the composition of the Rajya Sabha will only change very slowly. (Of the 14 vacancies in the upper house during the rest of this year, ten are from Uttar Pradesh, and so will be filled through a vote dominated by the Samajwadi Party.) Whether the current Rajya Sabha will take on a more dissenting role remains to be seen, but it will soon be facing its first test in this new landscape. On 25 May, Modi handpicked Nripendra Misra, an IAS officer who was the chairman of the Telecom Regulatory Authority of India from 2006 to 2009, to be his principal secretary. However, it seemed to escape his attention that the TRAI Act effectively barred Misra’s appointment. A hurried change in the law was carried out, through a presidential ordinance, just a few days before the first parliamentary session.

In recent years, the inherently undemocratic issuing of ordinances has become quite routine, possibly as a result of increased obstructionism in parliament. Yet the temporary stifling of debate by ordinance must always be rectified by proper parliamentary procedure. Like any other ordinance, this one will lapse six weeks from the day the Parliament first convened, on June 9, unless legislated into law. (However, as per a Supreme Court ruling, any decisions Misra makes while principal secretary would still be legal, and the question of his continuance, even if the ordinance is defeated, remains open.) The ordinance has already been placed before the Lok Sabha, and since the budget session will commence within six weeks of this session, on 7 July, it is likely to be tabled in the Rajya Sabha then. This government has less than a month to establish a broad consensus among almost all the regional parties in the country on this issue. Given the composition of the Rajya Sabha, the Modi government must be well aware of the possibility of favourably resolving any possible impasse through a joint session.

Given the rarity of joint sessions, it would seem odd for the government to summon one for the appointment of a single official. But if the ordinance does not pass in the Rajya Sabha, it may not have much choice. If a joint session has to be called in the near future, it could well be as polarising, with the same figures playing key roles, as the controversial POTA joint session. This is perhaps why Modi took care to invoke the spirit of cooperative federalism in his address. But with 60-odd bills pending in the Rajya Sabha, and contentious legislation such as the Women’s Reservation Bill and the Goods and Services Tax Bill on the horizon, no major non-NDA parties in the upper house will commit to supporting each and every legislative initiative. For a man like Modi, who does not easily brook opposition, it might still be easy to accommodate occasional concessions to the decimated opposition in the Lok Sabha. It would be quite another matter to face a challenge of the sort the Rajya Sabha could present, from legislators in a position of strength.