Does the role of the Rajya Sabha in the legislative process require reform?

by Suyash Rai.

Orders of men, watching and balancing each other, are the only security;
power must be opposed to power,
and interest to interest.

- John Adams, Thoughts on Government

The BJP won a majority in Lok Sabha (the House of the People). However, for about 20 months, the Government has seen its legislative agenda slowed down by the Rajya Sabha (the House of the States). Is this a healthy outcome, in line with a sound logic of the Constitution, or does this gridlock expose errors in the Constitution?

The Government, and some who sympathise with it on this matter, are unhappy about the legislative role of the Rajya Sabha. Some are even calling for sweeping reforms. There are early signs that Government may try to find ways to work around the Rajya Sabha. On December 21^st, it reportedly tried to introduce the Bankruptcy and Insolvency Bill in the Lok Sabha as a Money Bill - a surprising move given that the Bill has very few provisions that relate to matters a Money Bill is supposed to be exclusively for, as defined in Article 110 of the Constitution.

We usually hear calls for reforming institutions in times of distress or disharmony. However, in such turbulent times, we are likely to err in diagnosis and treatments. In such times, we tend to be swayed by immediate and temporary facts about what those institutions are doing, and those facts, especially if we don't like them, blind us to the structural nature of the institutions. We have often changed laws because some specific situation riled us. The amendment to the Juvenile Justice Act is only the most recent example of a lasting change inspired by momentary passions. We have changed time-tested systems for far smaller reasons. We abolished the jury system because of one case in which the system may have failed us.

The middle road in thinking about the Constitution

Winning elections determines who leads the Government, but this is not unlimited power. The formal design of the Republic is put down in the Constitution. Among other things, this design divides and limits power among various arms of the State, and mandates procedures and protections that are non-negotiable. Even the wisest policy must be implemented only within the limits imposed by the Constitution. Even if the elections for the Lok Sabha deliver a `very strong mandate' (as the mass media likes to say this), this does not confer absolute power to reshape the working of government. The analysis of present criticisms of the legislative process must be located within a full normative design. We must have a reasoned point of view on the question: what is a good design for the legislative branch of the Republic of India? All conceivable designs are problematic in certain times; we have to judge alternative designs in terms of their overall performance in the context of the remainder of the Constitution.

We the citizens have the ultimate constituent powers, and can therefore debate the Constitution. However, a certain veneration for the Constitution and its basic institutions is necessary for the Republic to thrive. This veneration should not be blind but based on reason. It should come from respect for the intellectual aspects of it -- the political science and political philosophy underpinning it -- and the act of founding that gives it legitimacy. Veneration implies that only an overwhelming force of reason and evidence may necessitate amending the basic institutions of the Constitutional system. If we consider the arguments and find that we agree with the calls for reforms, when imbued in a certain veneration, we would be more likely to be doing so in the long-term good of the Republic.

Rajya Sabha in the Constituent Assembly Debates

The Republic of India is to political science what the Large Hadron Collidor is to physics. Our Republic is a grand experiment in political organisation of human affairs, made more ambitious by the scale and complexity of our society. Rajya Sabha, the House of the States, is a part of the Constitutional construct. Although the concept grew out of history and institutions of the time, the Constituent Assembly debated and altered it. A second chamber in the Parliament was envisaged for the first time under the Montague-Chelmsford Reforms. The Government of India Act, 1919 provided for the Council of State. Under the Government of India Act, 1935, a different design was proposed, but that never materialised. As a result, the Second Chamber set up under the Government of India Act, 1919 continued to function till 1947.

The Constituent Assembly debated the merits and demerits of the upper house and chose a design based on an understanding of the ideal legislative process. Naziruddin Ahmad said:

A popular house is known for its vitality and vigour and that House will have the exclusive power in regard to money. But a second chamber introduces an element of sobriety and second thought.

Gopalaswami Ayyangar, who later became Leader of Rajya Sabha, also pointed at the need for the second chamber:

... 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.

He considered the Rajya Sabha as "an instrument by which we delay action which might be hastily conceived" and a place to "give opportunity to seasoned people who may not be in the thickest of the political fray..."

Highlighting the need for the states to participate in lawmaking at the centre, Naziruddin Ahmad said:

"Without a second chamber it would be difficult to fit in the representatives of the States in the scheme of things."

Some members opposed the idea of an upper house. Mohd. Tahir made an impassioned appeal against the idea of an upper house by, among other arguments, invoking the irony of a single-house Constituent Assembly proposing a Parliament with two houses. Prof. Shibban Lal Saksena, opposing the upper house, said:

"...experience in the last so many years has been that the Upper House acts as a clog in the wheel of progress. In no country an Upper House has helped progress. It has always acted as a sort of hindrance to quick progress."

One can almost hear an echo of the sentiments being expressed at present.

The debate may have been spirited, but the sense of the Assembly was that a bicameral Parliament with a Council of States was required, as the benefits of a stable legislative process with States having a say in lawmaking outweighed the costs of such a system.

The overall design of the Rajya Sabha has remained largely stable. About 95 percent members are indirectly elected by the state or territorial assemblies through single transferable votes, and the remaining members are nominated by the President of India. Being indirectly elected is not the same as being unelected. Rajya Sabha members are supposed to represent the States and Territories that sent them, and also play a moderating role in the legislative process, as most of them did not come out high energy contestations of general electoral politics.

Bringing stability and states into lawmaking

The Constituent Assembly debates thus show two key rationales for giving an indirectly elected Rajya Sabha substantial legislative powers: to ensure states' views are considered, and to bring stability in the process.

In a federal setup, states derive their powers directly from the Constitution, unlike a unitary system wherein sub-national units get only those powers that the all-powerful central government delegates. States ought to have the opportunity to have a say in central laws as many of those laws affect all the states, which may have varied interests. An upper house elected through the state assemblies is more likely to represent the states than a lower house wherein the national party politics gains more importance than state-level issues.

The other rationale for the Rajya Sabha is to bring stability into lawmaking. As the American founding father James Madison wrote in Federalist 37, Republics need to harness two conflicting modes of institutional being: energy/agility and stability. It is easy to understand the case for energy/agility. The Republic must respond to the necessities of the day. In a border conflict, the need to protect the Republic necessitates quick marshalling of its arms. This calls for adequate powers for the executive to act when faced with a border conflict. Such necessities can be found in areas such as public health (epidemics), foreign relations, disaster response, law and order, etc.

The case for agility has, however, been taken beyond the necessities. What Alexis de Tocqueville called the `idea of human perfectibility', coupled with the democratisation of politics, has created fertile ground for projects aimed at solving big social and economic problems by political means. Even those with somewhat modest expectations from politics believe in good consequences of laws and policies, albeit for them such consequences fall short of a revolution in human nature. In these views, opposition to any Government action aimed at progress is bad. It is easy to argue, but not necessarily true, that if a problem can be solved, it must be solved sooner rather than later. Progress cannot come too soon, and those slowing it down are acting against the grain of society.

The best among us subscribe to such views. If we like a policy, we get impatient with the process of implementing it. Process is a public good, and has the paradoxical characteristic of being everybody's business while being nobody's business. This preference for agility is greatly advantageous for the Government, irrespective of who is in power. It can continue promising a glorious future to the people, and usurping more powers to do bigger things at a faster pace. Even though Governments have seldom delivered on promises, hope springs eternal, and the persons making tall promises can always harness a positive aura as a consequence.

Thus, while agility can defend itself in the name of necessity or even progress, stability (or slowness) requires a more complicated defense to be put up.

The starting premise for stability is that powers of the Government must be limited and checked to guard against certain risks - of tyrannical overreach by the Government; of speed coming at the cost of prudence and diligence; and of majoritarian passions leading to bad decisions. These risks are real and democracy does not suffice to protect against them. Therefore, in the words of philosopher Pierre Manent: "to love democracy well, one must love it moderately." While we must love democracy, we also need to see its limitations and excesses.

Therefore, a democratic Republic has to be more than just democratic. Consider the risks emerging from majoritarian passions. In a democracy, passions of the majority can become so powerful that only rare statesmanship by an elected Government can stand up against them. Some of those passions may be harmful. In the absence of a Constitutional alibi, Governments will feel pressured to respond to majority's demands. Constitution can help the Government protect itself from its own constituents. It can create statesmanship even among those lacking the spirit of statesmanship. So, we must see that all slowness is not bad, because all change is not progress, all progress is not good, and everything that is popular is not in the long-term public interest.

What seems good today may appear less appealing in a few days, as knowledge and understanding are limited. However, there is a temporal mismatch between political power and its consequences. Legislation is approved by people who are in power for short periods of time, but it affects us in the long run. Consider just three of the legislations enacted in the year 2013: Companies Act; National Food Security Act; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. A certain buyer's remorse has started creeping in about the drafting of some of these. Many of those who voted for these legislations are no longer members of the Parliament. And yet, what they did will affect us for decades.

Infusing stability in the legislative process is a way of saying: we don't know what is good, so we better go slow. So, decisions must be taken only after following due process, even if this sometimes leads to the popular will not getting implemented. In a representative democracy (as opposed to a referendum democracy), legislation should not be just a simple expression of the popular will, but should result from an intermediated and deliberative process encoded in the Constitution. Rapid action was required when Lehman Brothers filed for bankruptcy in September 2008, but years of deliberation is required when designing the financial regulatory architecture as was done through the Financial Sector Legislative Reforms Commission. These deeper changes in the working of government should be thought through, and debated adequately. It should be harder to enact the Indian Financial Code when compared with enacting a Finance Bill.

An empowered upper house expands room for politics in the inter-election period. It can prevent Government from becoming arrogant and arrogating to itself powers that do not rightly belong to it. All political acts, including those that are oppositional, aim for some notion of the "good", even though partisan instincts don't let us see that. The "common good" is discovered through (a certain kind of) politics. Processes and politics slow things down. "Slow" has the opportunity to be "deliberate", and "deliberate" can be "reasonable". Fast is rarely reasonable, even with the best intentions.

We may interpret the design of the Constitution as envisioning three components of stability: the Rajya Sabha, the judiciary and the civil service. Rajya Sabha can slow down and alter legislations. The judiciary serves as a custodian of the Constitution, and can even nullify a legislation if it is found inconsistent with the Constitution. The civil service can bring continuity and stability into the governance system, and since it is protected, it can also play a moderating role vis-a-vis the governments. The idea is not to find absolute good in stability or agility, but to see that a balance between them is necessary for the good of the Republic. Stability can degenerate into obstructionism, which can lead to dysfunction. We must guard against excesses of stability, just as we must be wary of imprudent agility.

Legislation and the Government

Our Constitution has empowered the Government substantially in the Executive domain. Government also enjoys significant advantages in the legislative process. The Money Bill, which concerns regular raising and deploying of resources by the Government, only requires the Lok Sabha's assent (Article 110 of the Constitution). The Government's budget, is approved and funds are appropriated using this instrument. The Government also has the power to promulgate Ordinances, which have the force of law, and may eventually become laws, once they are passed by the Parliament. These powers have often been used by the Government to go beyond their original purpose. Mrs. Indira Gandhi issued 43 Ordinances between 1973 and 1975, many of them with far-reaching consequences.

The Government also has a role in setting the legislative agenda. Most of the time, the Government gets a substantial part of its legislative agenda implemented. In spite of its numerical disadvantage in the upper house, the current Government has got 45 bills passed in the Rajya Sabha. In the budget session, the Government was able to get Bills passed on 5 out of its 6 Ordinances. If a Bill is rejected by any house of the Parliament, after six months, a joint session can be called for passing the Bill. The Bill only needs a simple majority in a joint session. Since the Lok Sabha is 70 percent of the house, if a coalition has 60 percent seats in Lok Sabha, it only needs support of about a quarter of Rajya Sabha members to pass a Bill in a joint session.

The Lok Sabha almost by definition is not likely to disagree with the Government, especially when the Government enjoys a comfortable majority. Rajya Sabha is a house that can disagree with the Lok Sabha and with the Government. Rajya Sabha can even stand up to the popular will. It can slow things down. When it does that, Rajya Sabha can be an antidote to the passions that may have been stirred up momentarily.

Since one of its tasks is to slow down the legislative process and make it more deliberate and reasonable, the more substantive empirical question is: has the Rajya Sabha made legislations more reasonable? Since this is a subjective assessment, only the most egregious examples would do. Also, pending a comprehensive study of this question, some examples from recent experience would have to do.

Rajya Sabha had an important role in stopping the Prevention of Torture Bill, 2010, which sought to dilute the existing legal protections against torture. Another example is the GST Constitutional Amendment presently under consideration. In the last session, the Bill passed by the Lok Sabha was being presented by the Government as the best and the only possible version of the comprehensive tax reform. That Amendment would have gone through had the Rajya Sabha not stood in the way. Due to the slowed down process in the Rajya Sabha, two changes have reportedly been accepted in the Bill - removal of the 1 percent additional tax, and an independent dispute resolution mechanism. These changes are widely supported by independent experts as well as some advisors of the Government.

In the Indian experience, there have been limits within which Rajya Sabha has slowed down or altogether stalled the Government's legislative proposals. Compromises are eventually found on all but the most egregiously unacceptable legislations. Of the over 3000 laws that have been passed by the Parliament till date, only 3 were passed in joint sessions of the Parliament. The Government of the day either finds a political coalition or lets the Bill lapse.

The stalling of the house, and other disruptive tactics that impede the agenda of the Government, are aesthetically unappealing. But we should look beyond form to function. Democratic politics is always an ugly spectacle, but liberal democracy has delivered the most successful States in world history. It is difficult to make a definitive comment on this, but it is possible that the Rajya Sabha may be delivering on its objectives as envisioned in the Constitution.

Rise of competitive and regional politics

The Constitution envisions the Rajya Sabha as an intermediary between the states and the centre. All important parties play two roles: at the level of the state and at the level of the centre. Sometimes, competition in one sphere hampers cooperation in the other. A fractured polity can exist at the national level because of state politics, and that is not necessarily a bad thing as the interests of states must not be considered inherently subservient to the agenda of a national Government.

The rise of competitive politics since the 1970s has made Parliament more representative and it is now more capable of checking the Executive. There are now many more questions asked in the Parliament, and more Bills are referred to committees. To add to the vibrancy of our politics, regional politics has become much more important for the national agenda.

Regional parties went from 51 Lok Sabha seats in 1991 to 158 seats in 1998. They have held more than 150 Lok Sabha seats in every General Election since then. The BJP has been the largest or second largest party since 1991. Regional parties get more representation in the Rajya Sabha, because they tend to perform better in state assembly elections than in the general elections for the corresponding regions. If we consider the last 25 years, we find that the combined share of the Congress Party and BJP in Lok Sabha has ranged between 60 percent and 77 percent, while their combined share in Rajya Sabha has almost never been 50 percent.

It is possible that regional parties may coalesce around one of the two big parties to slow down the other big party's legislative agenda. However, this is not necessarily the case. It just so happens that at the moment, for some regional parties, there is little apparent incentive to coalesce around the BJP, but more to support the Congress. Those incentives could change over time. A short-term view of politics should not be taken while discussing long-term Constitutional reform.

Proposals for reform

In a recent column, Baijayant Panda, Member of Lok Sabha belonging to Biju Janata Dal, a regional party, has suggested curtailing the powers of Rajya Sabha or changing its nature. He proposes two alternative reforms: make Rajya Sabha directly elected (like the US Senate), or limit the time period for which it can stall a legislation (like the forthcoming change in the Italian Parliament).

These proposals are problematic. If Rajya Sabha's powers are curtailed to limit its ability to stop a legislation to a period of, say, 1 year, the government will get everything it wants, with just a bit of delay. This will let the Government run amok, which is exactly what we have seen in the instrument of legislation that does not require Rajya Sabha's assent - the money bill. In taxation and expenditure, the Government has made drastic changes without due consideration, at one point taking the tax rate to 97.5 percent, and at another time rapidly scaling up subsidies.

Italy's example must be understood in its context. Italy is a unitary parliamentary republic. The Government of Italy is the only government that has real powers, and other bodies derive their powers from it. India is a federal republic with states having elected legislatures, and the interests of the states must be protected by giving them a say in the legislation.

Direct election to the upper house may lead to an even greater national party centered politics, just like we see in the Lok Sabha members. While giving the US example, we must also understand the extent to which the poweres of the US Congress are curtailed by the Presidential veto. The US has much clearer separation of powers than India. The President, who heads the Government, is directly elected, and so are members of branches of the Congress (Senate and House of Representatives). Once a legislation makes its way through the two houses, and has therefore tided over the myriad rules that allow a legislation to be stalled, the President can veto it and you are back to square one.

Interestingly, in the US, it rarely happens that the President and both the houses of the Congress are controlled by the same party. In the last 35 years, this has been the case for only 8.5 years. For the remaining 26.5 years, at least one of the houses had a majority of the opposing party. This does not mean that things did not get done. For all his 8 years as President of United States, Ronald Reagan had a hostile or a divided Congress. Many people say he got a lot done. How was this done? By politics.

Reforms are needed, but elsewhere

There are significant weaknesses in our legislative system that need to be addressed. As a house of the people, the Lok Sabha is supposed to take measures that are in the interest of those who elected its members, with elections holding them accountable for doing that. For Rajya Sabha, elections are indirect, and the members are expected to act in the interests of the states that sent them. Both houses are expected to uphold the overall interest of the Republic. Rajya Sabha can realise its potential as a source of constructive stability if the considerations that affect its decisions are somewhat different from those that bear on the Lok Sabha. However, by giving disproportionate weight to the electoral interests of political parties, the Anti-defection law has reduced the effect of other considerations in both the houses. This limits the effectiveness of both Rajya Sabha and Lok Sabha, as it alters their essential nature. Repeal of the Anti-defection law would make the Lok Sabha more democratic and enhance the heterogeneity of considerations that weigh upon the Rajya Sabha. This would enhance the effectiveness of the Parliament.

We also need reforms in the way the Parliament functions. Stricter management of the floor, more transparency in the committee process, better research support to legislators to help them stand up to the Government, and other ideas are worth considering.

Conclusion

There is a simplistic view of democracy that is often heard in India, where the distinctions between direct democracy and representative democracy are not understood. The Constitution of India has set in motion a complex system with many moving parts. There is method in much of its madness. All successful democracies have comparably complex systems of checks and balance. Winning elections does not give untrammelled power.

Proposals to curtail the powers of Rajya Sabha need to be analysed with great care. In our view, the case for fundamental change has not yet been persuasively made. Reducing Rajya Sabha's powers with the purpose of empowering the popularly elected Government is a simplistic view of democracy, one that is not consistent with the sophisticated political thinking that underpins the Constitution. Under the Constitution, winning an election gives the ruling parties an opportunity to lead the debate on change: but executing change requires persuading politicians of all shades, and building coalitions for change.



The author is a researcher at the National Institute for Public Finance and Policy.