Revisiting the Rajya Sabha’s role

The recent elections to the Rajya Sabha to fill 57 vacant seats became notorious for alleged poaching by political parties among the ranks of their counterparts with charges of corruption blaring out loud against one another. While such charges are not new, their extent was magnified in this round since these elections were crucial for the ruling Bharatiya Janata Party and the opposition Congress to decide who holds the scales in the Upper House. The former has found many of its pet legislative proposals stonewalled due to the lack of majority support in the House, while the latter has turned it into an important trench for its war of position against the ruling dispensation.

While the Rajya Sabha has generally played second fiddle to the Lok Sabha during the periods of preponderance of a ruling regime in both the Houses, it has become an important platform of resistance to the majoritarianism of the Lok Sabha during the Janata regime (1977-79), National Democratic Alliance (NDA) rule (1998-2004), UPA II (2009-2014) and in the last two years of NDA rule. While some instances of such resistance could be regarded as whimsical and grandstanding, overall they drew attention to the fact that electoral victory to the lower House may entitle a party to rule but not necessarily govern unless it reaches out and engages with the central concerns and interests embedded in the polity. This was clearly voiced in the resistance against the Prevention of Terrorism Bill in 2002, corruption charges against the government during 2011-14, and the proposed amendment to the Land Acquisition, Rehabilitation and Resettlement Act in 2015.

Rationale of the House

But the Rajya Sabha is not merely meant to play such a salutary oppositional role. Unfortunately there has not been much reflection with regard to the nature and purpose of this House in India after the brilliant debate in this regard in the Constituent Assembly. While it is important to highlight the case of corruption in the election of the members to this House, and resist the tendency of parties to pack the House with their high and mighties without consideration to their being worthy or not to play the representative role, it is imperative to draw attention to the role that the Rajya Sabha needs to play in the Indian body politic today.

In the Constituent Assembly debates we find a set of four distinct reasons advanced in defence of the Rajya Sabha. First, some members of the Assembly saw it as a House of reflective and evaluative reasoning removed from the hurry-scurry of everyday life. N. Gopalaswami Ayyangar termed it as the House which can rein in “passions of the moment”. Lokanath Mishra described it as “a sobering House, a reviewing House, a House standing for quality and the members will be exercising their right to be heard on the merits of what they say, for their sobriety and knowledge of special problems; quantity, that is, their number, is not much of moment”. In the same vein, M. Ananthasayanam Ayyangar thought that in such a platform of reflective consideration, “the genius of people may have full play”, and it can make place for people “who may not be able to win a popular mandate”.

Clearly there was much elitism and condescension in such a conception of the House, that led to frequent potshots between members of both Houses in the early days of the Parliament that were eventually reined in by rules of Privilege Motion. Second, apart from the review and revaluation role, there was a broad consensus in the Assembly for the need for a second legislative chamber to initiate proposals for public policy, to elicit responsiveness from public authority, and to hold governments accountable. The constitutional provisions on division of work between the Houses clearly bear it out. However, in this conception, the Rajya Sabha largely duplicates the functions of the Lok Sabha and therefore, in the words of Abbé Sieyès, turns out to be “superfluous”.

Such an understanding has led to repeated introduction of private members’ bills in the Lok Sabha for the abolition of the Rajya Sabha, as well as moves by the enthusiasts of the House to introduce bills to widen its jurisdiction. Needless to say, none of these proposals has made much headway. A third conception saw the House as the authoritative platform to accommodating diversity, although much of this consideration laid emphasis on political diversity reflecting federal arrangements, drawing parallels with the United States in the process. In this conception while the Lower House was meant to represent the citizen-community at large, the Upper House, primarily voted in by elected members of the State Assemblies, would represent the nation “as a differentiated whole”.

The slide

Clearly the nature of diversity in India, and the distribution of powers it resorted to through federal arrangements, was markedly different from the United States. There was a fourth conception of the House, which was not lucidly spelt out in the Constituent Assembly debates, although it could be read on the sidelines again and again, captured by the late L.M. Singhvi in the phrase “the grand inquest of the nation”. While this conception saw diversity as an essential ingredient that should inform the Upper House in India, it saw diversity not necessarily wholly encompassed by federal arrangements. Such a condition called for a very distinct overlapping representation through the Upper House. Such a conception owed much to the principle that while all representative democracies have a predictable role for the House, elected through universal adult franchise, the Upper House is a unique response to the distinct historical and cultural contexts of a polity it is called upon to represent. To what extent has the Rajya Sabha lived up to these expectations?

There are a few formal tasks exclusive to the Rajya Sabha in addition to the other chores it shares with its counterpart, the Lok Sabha, such as the power to transfer a subject from the State List to Union List for a specified period, to create additional All-India Services, and to endorse Emergency under Article 352 for a limited period when the Lok Sabha remains dissolved. While it does not have the power to approve money bills, it can offer its own suggestions on them, and while it has no representation in the Estimates Committee, its members have a proportionate share in all other committees of the Parliament, including those closely linked with financial dealings such as the Public Accounts Committee, Committee on Public Undertakings and the Standing Committees related to Ministries/Departments. The removal of the domicile requirement mandated by the Representation of the People Act, 1951, by the five-judge Bench of the Supreme Court in 2006 in Kuldip Nayar v. Union of India and Others has further watered down the mark of diversity that was the hallmark of the Rajya Sabha. In other words, the Rajya Sabha has turned out to be another chamber of the Parliament akin to the Lok Sabha, except for the mode of selection of its members.

The thinning out of difference between the two Houses of the Indian Parliament, however, does not make the Rajya Sabha superfluous. Given the articulation of the Indian polity, in the foreseeable future the party composition of the Houses will be markedly varied in the two Houses. Given the trend of shoving off difference under the homogenising drive in the dominant dispensation today, and a majoritarianism that necessarily spells exclusion, a forum such as the Rajya Sabha can be the voice of sanity, of the excluded, and of citizen rights. It can ensure, at least to the extent constitutional provisions go, that the majoritarian thrust of the Lower House does not undermine rule of law and public institutions. It is to the credit of the Rajya Sabha that it has come to play this role at critical junctures, and particularly in the present. But is it enough? In this context it might be important that the nature and role of the Rajya Sabha be revisited, rather than merely think of it as the parking lot for those who cannot ensure their election from a popular constituency.

Direction of reform

In addition to its present role of representation and accountability, the Rajya Sabha could be the House that represents difference in our polity, difference marked not merely by its culture but its diversity. Difference in India is encoded not merely around regions, languages, and communities but also in its inegalitarian social relations. Representation through federal units hardly captures these multiple and often overlapping differences. There are some constituencies which will never be able to ensure their adequate representation through the electoral route: Muslims; women; linguistic, religious and ethnic diversity; regions such as the Northeast and Jammu & Kashmir; urban informal labour; the rural poor, just to name a few constituencies. The Constituent Assembly debates, and the need for the Upper House to be embedded, are a sufficient justification in this regard. One can understand the deep discomfiture that some of the nominated members feel in the House given the adversarial context in which they have to function. There are probably ways to shape representation that reaches out and connects to nodal concerns without being overwhelming.

Valerian Rodrigues is an Indian Council of Social Science Research National Fellow and Professor at the Department of Political Science, Mangalore University.

Muslims, women, urban informal labour and the rural poor could be some of the diverse constituencies the Rajya Sabha represents