Upper House, a question

Lokanath Misra led the charge against a federal second chamber in the Constituent Assembly stating: “Sir,…I do not think there is any real need for the second chamber, nor do I think that it will serve any useful purpose. Sir, so far as I have studied the Constitution and the constitutional precedents, it is now admitted almost on all hands that second chambers are out of date. The only argument that is generally advanced in favour of such a chamber is that it will have a sobering effect on the decisions of the Lower House which is more representative of the people and that the people are now restive… Its creation will only result in so much waste of public money and so much waste of time… I do not think that without a second chamber the country will be any the poorer for it, as now we stand.”

Elaborating further Misra stated: “From our actual experience we find that such a huge number of people either in the House of the People or in the Council of States does not serve any very useful purpose. And we know that there is real difficulty in finding out so many members who will be qualified and quite interested in such law-making. We see from the proceedings of this very House which consists of more than three hundred members that so few of us take real part in and are really useful to constitution making”.

This, perhaps, is the most profound argument even today against enlarging the size of either Lok Sabha or Rajya Sabha.

Lokanath Misra was not alone in opposing a federal second chamber. His colleague, Shibban Lal Saksena, was equally emphatic: “I cannot refrain from saying that I am one of those who believe in only one chamber and not two chambers. Here they have provided for two chambers and the worst part of this is that in the Upper Chamber we shall have twelve nominated members; and we passed the other day that even those members, who have been nominated and who will never seek the vote of the people, can become ministers also. I think this is a most undemocratic aspect of our Constitution..”

Opposing the motion setting up a bicameral federal legislature, Saksena had earlier argued:“In this motion, we have been asked to vote for two Houses, the Lower House and the Upper House. I wish to point out that our experience has been that the Upper House acts as a clog in the wheel of progress. I think that everywhere in the world the experience about Upper Houses has been the same…..” They were not the only ones who had concerns. Other members expressed them too in different contexts during the Constituent Assembly debate on draft Article 67.

Article 1(1) of the Indian Constitution states “India, that is Bharat, shall be a Union of States.” It is, therefore, obvious that the primary responsibility of a Council of States would be to protect the interests of the states vis a vis the Union, especially after the Union Powers Committee, post the announcement of the Partition plan on June 3, 1947, decided that India’s constitutional design would be more unitary than federal. There is hardly any empirical evidence that substantiates that the Rajya Sabha has measured upto the task ever since it came into existence on April 3r 1952.

Moreover, from 1952 to 2003, at least there was a veneer of a state focus when it was mandatory that any citizen desirous of contesting a Rajya Sabha election had to be an elector from that particular state. By amending Section 3(1) of the Representation of People’s Act 1952 and doing away with the domicile requirement, the NDA/BJP Government removed this fig leaf also in 2003.

Kuldip Nayar, then a nominated member of Rajya Sabha, challenged this amendment in the Supreme Court principally on the ground that it militates against the raison d’être of the Rajya Sabha. However, a five-judge bench did not uphold his contentions. This amendment and the subsequent judgment buried the earlier practice of individuals entering the Rajya Sabha from anywhere based upon rather dodgy but still some form of domicile credentials. Both the amendment and the subsequent judgement require urgent revisiting by the legislature to restore the fundamental character of the Council of States.

Coupled with this is another major inconsistency. Twenty-four states have unicameral legislatures, that is, only one legislative body, and only six states are bicameral. There is no justifiable legal basis for this classification for if size is a determinant for bicameralism then for every Uttar Pradesh or Maharashtra that is two-House in design there is a West Bengal and Tamil Nadu that is not. If the bulk of the states can make do with one House why not the Centre?

However, all this does not still answer the fundamental question: What has Rajya Sabha been able to achieve that a stand-alone Lok Sabha has not, or would not, in the future? This requires a full debate in Parliament, especially the Rajya Sabha, as India enters the 75th year of its independence.

If the only argument for the existence of the Rajya Sabha is that it is a continuous House as opposed to the Lok Sabha that gets mandatorily dissolved every five years, if not sooner, then that can be fixed with a simple amendment to Article 83 (2) that should state that “Lok Sabha would remain in existence till the time its successor body/house is not constituted through general elections mandatorily held three months prior to the completion of the five year term of the previous body/House or sooner as the case maybe”. Article 83 (1) would stand deleted and consequential amendments can be carried out to other parts of the Constitution.

Finally, it would be instructive to keep in mind that the Basic Structure doctrine enunciated by the Supreme Court in Re: Kesvananda Bharti holds parliamentary democracy to be basic structure, not bicameralism.

The writer is a lawyer, Congress MP, former I&B Minister. Views are personal