Role of Rajya Sabha vs Role of Upper House in the other Constitutions

The growth of ‘Bicameralism’ in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of ‘Second Chambers’ or Upper Houses of Parliament and better co-ordination between the Central government and those of the constituent units, was perhaps first laid down in definite terms with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the U.S.A., known as the Senate, was theoretically modeled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its composition and powers.

Since then, many nations have adopted a bicameral form of central legislature, even though some of them are not federations. On account of Colonial rule, these British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950. In Canada, the Parliament consists of the House of Commons and the Senate (‘Upper House’). Likewise the Parliament of the Union of India consists of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which is the Upper House). In terms of their functions as agencies of representative democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada, namely the Lok Sabha, the House of Representatives and the House of Commons broadly follow the same system of composition. As of now, Members of the Lower Houses are elected from pre- designated constituencies through universal adult suffrage. The demarcation of these constituencies is in accordance with distribution of population, so as to accord equity in the value of each vote throughout the territory of the country. However, with the existence of constituent states of varying areas and populations, the representation accorded to these states in the Lower House becomes highly unequal. Hence, the composition of the Upper House has become an indicator of federalism, so as to more adequately reflect the interests of the constituent states and ensure a mechanism of checks and balances against the exercise of power by central authorities that might affect the interests of the constituent states. However, the area of focus is to analyse the role of second chambers in the context of centre-state relations i.e. embodiment of different degrees of federalism. This motive also illustrates the choice of the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these three nations are notable examples of working federations over large territories and populations which have a high degree of diversity at the same time. The chief criterion of comparison will be the varying profile of representation accorded to the constituents units by the methods of composition and the differences in the powers vested with the ‘Upper houses’ in the constitutional scheme of the countries. Many Political theorists and Constitutional experts are of the opinion that in the contemporary context, ‘Second Chambers’ are losing their intended characteristics of effectively representing the interests of states and are increasingly becoming ‘national’ institutions on account of more economic, social and political affinity developing between states. Hence, a comparative study of the working of bicameralism can assist the understanding of such dynamics within a Federal system of governance.

As mentioned earlier, the emergence of Second Chamber in a Federal context was first seen in the Constitution of the United States. The thirteen original colonies had been governed under varying structures until independence from British Rule and hence the element of states’ identity was carried into the subsequent Union. For purposes of the Federal legislature, there were concerns by the smaller states that the recognition of constituencies on the basis of population would accord more representation and power to the bigger and more populous states. Furthermore, in that era, voting rights were limited to white males and hence the size of the electorates were relatively larger in the Northern states as compared to the Southern states which had a comparatively higher proportion of Negroid population who had no franchise. Hence, the motives of Federalism and ensuring of more parity between states of different sizes resulted in a compromise in the drafting of the constitution. While the Lower House of Congress, i.e. the House of representatives was to be constituted by members elected from Constituencies based on population distribution, the Senate was based on equal representation for all states. Initially, the two senators from each state were elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been elected by open adult suffrage among the whole electorate of a state. This inherent motive of ensuring a counter-balance to the power of the federal government and larger states has persisted in the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested with certain extra-legislative powers, which distinguish it from Second Chambers in other countries. Moreover, the Senate is a continuing body with senators being elected for 6 year terms and 1/3rd of the members retiring or seeking re-election every 2 years. With the addition of more states to the Union, the numerical strength of the U.S. senate has also increased. The Parliament of the Dominion of Canada in its present from was established by the British North America Act, 1867 (also known as the Constitution Act, 1867).

Canada to this day remains a constitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the nominal head of state. Prior to the 1867 Act, the large territories that now constitute Canada (with the exception of Quebec, which had the historical influence of French rule) were being administered as distinct territories. This act established a confederation among the constituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature comprising of the House of Commons and the Senate. The Senate was given two major functions in the constitution. First, it was to be the chamber of “sober second thought”. Such a limit should prevent the elected House of Commons from turning Canada into a “mobocracy”, as the framers of Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the constitution, thus ‘preventing the Commons from committing any rash actions’. While the House of Commons was to be constituted through constituency-based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces. The number of senators from each state has consequently varied with changes in the confederation. However, the Canadian senators are appointed by the Governor-General in consultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and consequently also to the Federal executive to an extent. This system of appointment of senators was preferred over an electoral system owing to unfavorable experiences with elected ‘Second Chambers’ like the Legislative Councils in Ontario and Quebec, prior to the formation of the Confederation in 1867. Another compelling factor behind the designing of a weak senate was the then-recent example of the United States where some quarters saw the Civil war as a direct consequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owing to it’s method of composition.

The genesis of the Indian Rajya Sabha, on the other hand, benefited from the constitutional history of several nations which allowed the Constituent assembly to examine the federal functions of an Upper House. However, ‘bicameralism’ had been introduced to the provincial legislatures under British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal legislature, whose members were to be elected by the members of provincial legislatures and in case of Princely states to be nominated by the rulers of such territories. However, on account of the realities faced by the young Indian union, a Council of States (Rajya Sabha) in the Union Parliament was seen as an essential requirement for a federal order. Besides the former British provinces, there were vast areas of princely states that had to be administered under the Union. Furthermore, the diversity in economic and cultural factors between regions also posed a challenge for the newly independent country. Hence, the Upper House was instituted by the Constitution framers which would substantially consist of members elected by state legislatures and have a fixed number of nominated members representing non-political fields. However, the distribution of representation between states in the Rajya Sabha is neither equal nor entirely based on population distribution. A basic formula is used to assign relatively more weightage to smaller states but larger states are accorded weightage regressively for additional population. Hence the Rajya Sabha incorporates unequal representation for states but with proportionally more representation given to smaller states. The theory behind such allocation of seats is to safeguard the interests of the smaller states but at the same time giving adequate representation to the lager states so that the will of the representatives of a minority of the electorate does not prevail over that of a majority.

In India, Article 80 of the Constitution of India prescribes the composition of the Rajya Sabha. The maximum strength of the house is 250 members, out of which up to 238 members are the elected representatives of the states and the Union territories [Article 80(1) (b)], and 12 members are nominated by the President as representatives of non-political fields like literature, science, art and social services [Articles 80(1)(a) and 80(3)]. The members from the states are elected by the elected members of the respective State legislative assemblies as per the system of Proportional representation by means of the single transferable vote [Article 80(4)]. The manner of election for representatives from Union territories has been left to prescription by parliament [Article 80(5)]. The allocation of seats for the various states and union territories of the Indian Union is enumerated in the Fourth schedule to the constitution, which is read with Articles 4(1) and 80(2). This allocation has obviously varied with the admission and re- organisation of States.

Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years. These ‘staggered terms’ also lead to a consequence where the membership of the Rajya Sabha may not reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years [Article 84]. As per Article 89, the Vice-president of India is the Ex- officio Chairman of the Rajya Sabha and the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries. The American Senate on the other hand accords equal representation to all 50 states, irrespective of varying areas and populations. Under Article 1, section 3 of the U.S. Constitution, two senators are elected from every state by an open franchise, and hence the total membership of the Senate stands at 100. It is generally perceived in American society that the office of a senator commands more prestige than that of a member in the House of Representatives. As has been stated before, Senators were chosen by members of the respective State legislatures before the 17th amendment of 1913 by which the system of open franchise was introduced. The candidates seeking election to the Senate have to be more than 30 years old and should have been citizens of the U.S.A. for more than 9 years and also should have legal residence in the state they are seeking election from. Senators are elected for 6 year terms, with 1/3rd of the members either retiring or seeking re-election every 2 years. Senators can run for re- election an unlimited number of times. The Vice President of the U.S.A. serves as the presiding officer of the Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical purposes the presiding function is performed by a President Pro Tempore (Temporary presiding officer), who is usually the senator from the majority party with the longest continuous service. The floor leaders of the majority and minority parties are chosen at separate meetings for both parties (known as Caucus/conference) that are held before each new session of Congress. The Democratic and Republican parties also choose their respective Whips and Policy committees in the Caucus.

The Senate in the Canadian Parliament, is however not an elected body. As indicated earlier, the Senators are appointed by the Governor-General on the advice of the Prime Minister. The membership of the house as of today is 105 and it accords equivalent representation to designated regions and not necessarily the constituent provinces and territories. The Prime Minister’s decision regarding appointment of senators does not require the approval of anyone else and is not subject to review. The qualifications for membership are an age requirement of 30 years, citizenship of the Dominion of Canada by natural birth or naturalization and residency within the province from where appointment is sought. In the case of Quebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators hold office until the age of 75 unless they miss two consecutive sessions of Parliament. Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to party affiliations in appointments, the provision for holding terms till the age of 75 does theoretically allow for the possibility of the Opposition to command a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the Lower House are elected for 5 year terms. Now that a general idea has been gained on the methods of composition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation accorded to constituent states in the three systems before proceeding to compare the policy scope as well as the practical and extra-legislative powers accorded to these chambers. The idea of equal representation for states in the Senate was built into the American Constitution. The 17th amendment can hence be considered a reform in so far as it threw the election of senators open to the general public. However, the weightage accorded to each vote across states is inversely proportional to the population of the concerned state. Hence, actual representation per vote in the U.S. senate is higher for smaller states and likewise much lower for more populous states. On a theoretical as well as practical standpoint, this can create situations where the representatives of the minority of the electorate can guide legislation over those of the majority. Canada opted for a variation of the equivalent representation for designated regions and hence the representation accorded to provinces and territories was loosely based on population distribution. However, demographic changes over many decades impact the actual representation accorded to each territory. Furthermore, the nominal system of appointment to the Canadian Senate creates the position that the will of the Senate will ordinarily flow with the federal executive.

The unequal yet weighed proportional representation method adopted for Rajya Sabha elections was a consequence of the analysis of representation in other federal bicameral legislatures. Even though it was recognized that smaller states required safeguards in terms of representation, it was further observed that enforcing equal representation for states like in the U.S.A. would create immense asymmetry in the representation of equally divided segments of the electorate. Furthermore, the formation and re-organisation of states in India since independence has largely been on linguistic lines and other factors of cultural homogeneity among groups, where the sizes of these communities vary tremendously in comparison to each other. Hence, allocating seats to the states in the Rajya Sabha, either on equal terms or absolutely in accordance with population distribution would have been extreme solutions. Hence, the formula applied for the purposes of allocation of seats in the Fourth schedule seems to be a justifiable solution. This point can be illustrated with the trend that between 1962 and 1987, six new states were carved out of Assam. If India had followed the equal representation model, these new states, containing barely 1% of India’s population, would have had to be given 25% of all the votes in the upper chamber. Hypothetically, the more populous states would never have allowed this. Thus an essential feature of the working of federalism in India i.e. the creation of new states, some of which had violent separatist tendencies, would have been difficult under the U.S. principle of representation for each state equally. The Irish Constitution like the Indian Constitution does not have strict federalism. Residence is not insisted upon under the Irish Constitution (See Constitution of India by Basu, 6th Edn. Vol.F). Similarly, in the case of Japanese Constitution, qualifications are prescribed by the statute and not by the Constitution. The various constitutions of other countries show that residence, in the matter of qualifications, becomes a constitutional requirement only if it is so expressly 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. [Supreme Court of India in Kuldip Nayar vs Union Of India & Ors decided on 22 August, 2006]