Monday, June 27, 2022

A Clone of the Lok Sabha?

With biennial polls in the offing, has the House delivered its original mandate or become akin to the Lower House? Perhaps polls to all the seats may be held at one go after simultaneous polls for assemblies

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By Vivek K Agnihotri

On June 10, 2022, biennial elections to the Rajya Sabha are scheduled to be held to replace 57 retiring members in 15 states. Political parties are busy lining up candidates for the seats falling vacant, based on their perception about whom they would like to reward or otherwise accommodated in return for services rendered in the past or expected to be performed in future.  

Given the cut and dried formula for these elections in terms of the number of members of a legislative assembly (MLA) required to secure one seat in the Rajya Sabha, the parties attempt to nominate only as many candidates as their strength in the respective state assembly guarantees. In borderline cases, with surplus votes, the parties file additional nominations in the hope of making the magical tally with the support of friends or foes.

Each member of the Rajya Sabha is elected for six years. According to Clause (1) of Article 83 of the Constitution of India, the Council of States (i.e. the Rajya Sabha) shall not be subject to dissolution, but one-third of its members shall retire every second year. This scheme has been considerably altered, and elections to the Rajya Sabha are being held on more than three occasions within a time span of six years. This has come about on account of the imposition of President’s Rule and/or dissolution of state assemblies for a variety of reasons from time to time, before the completion of their five-year term. Some assemblies were thus in a state of dissolution when the biennial elections to the Rajya Sabha were due, and hence elections to Rajya Sabha seats of those states were held later. This staggering of elections has played havoc with the biennial schedule.

Article 80 of the Constitution provides for the Council of States/Rajya Sabha consisting of 12 members nominated by the president and not more than 238 representatives of states and Union Territories. As against this sanctioned strength of 250 members, the Rajya Sabha at present has 245 members, the number of elected members having been restricted to 233 as detailed in the 4th Schedule of the Constitution. There is a correspondence between the numbers of Rajya Sabha seats allotted to various states and their respective population.

According to Clause (4) of Article 80, the representatives of each state in the Council of States shall be elected by the elected members of the Legislative Assembly of the state in accordance with the system of “proportional representation by means of the single transferrable vote”.  In simple terms, “proportional representation” means a political party gets to elect one or more member(s) to the Rajya Sabha in proportion to the number of its members in the assembly. Again, the vote of each member of the assembly is “single” but “transferable”. Thus, in the ballot paper, the names of all the contesting candidates are listed and the electors are required to indicate their order of preference against them. The elector MLA has to put at least number “1” against one of the candidates. His other preferences come into play only if the number of contesting candidates is more than the current vacancies in that state and, in the first round of counting, one or more candidates do not get the required number of votes to get elected.

The formula for deciding the minimum number of votes required by a candidate to get elected is as follows:

Total Number of MLAs divided by Number of Vacancies +1 plus 1

For example, let us look at the scenario in Andhra Pradesh in the forthcoming elections. First the facts: the strength of the state assembly is 175; the number of Rajya Sabha seats for which elections are scheduled is four; and YSR Congress Party (led by Jagan Mohan Reddy) has a strength of 151 in the assembly. According to the formula given above, the minimum number of votes required by a candidate to get elected would be as follows:

175 divided by 4+1 plus 1 = 36

Each of the four candidates nominated by YSRCP would thus need to secure 36 votes. Since the YSRCP has a strength of 151 in the assembly, it requires a whip to at least 144 (36×4) MLAs to give their first preference in the ballot paper to one or the other of the candidates nominated by their party. Other candidates, if any, in such a situation would be no-runners, at the starting point itself, because the Opposition has only 24 members.

During the debates in the Constituent Assembly, Lok Nath Mishra conceptualised the Council of Sates 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…” M. Ananthsayanam Ayyangar thought that on 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 popular mandate”.

However, overtime, we have somehow moved away considerably from the original vision and design of the Rajya Sabha, in letter as well as spirit. The Rajya Sabha, as envisioned by the framers of the Constitution, has been “basically” modified by removal of the domicile requirement originally mandated by the Representation of the People Act, 1951.  In permitting anyone to contest the elections to the Rajya Sabha, irrespective of the domicile, the diversity, which was the hallmark of the Upper House, has been watered down and it has, to some extent, become a House somewhat akin to the Lok Sabha.  It is no more the Council of States, and at present is, to all intents and purposes, a council of politicians or “nominees”. Moreover, all the persons elected to the Rajya Sabha are not uniformly “seasoned” persons, who add value to parliamentary proceedings.  Having thus meddled with the scheme of the Constitution, we cannot expect the Rajya Sabha to deliver its original mandate. This is something to ponder over and requires introspection on the part of all the stakeholders.

There are, therefore, a few suggestions worth consideration to revamp the Upper House. First and foremost is the provision for providing seats in the Rajya Sabha to various states on the basis of their population.  This, in effect, amounts to making the Rajya Sabha somewhat of a clone of the Lok Sabha and hinders capturing the diversity of the country in all its hues.  When we consider all states as equal for certain legislative purposes, why then this discrimination in their representation in the Rajya Sabha? Is a modified adaptation of the US Senate system possible, by making two or three categories of states, on the basis of population, and providing equal representation to the states in each category? This question needs to be discussed and debated.

Further, in order to restore the original character and status of the Rajya Sabha, the domicile requirement of its member needs to be brought back. It is actually quite surprising as to why the Supreme Court has not found the change inconsistent with the basic structure of the Constitution. Moreover, in view of the 73rd and 74th constitutional amendments, representation to the third tier of government (local bodies) needs to be provided in the Rajya Sabha, as is already the case with the Legislative Councils in states.

There is one radical suggestion. The term of the Rajya Sabha may be reduced to five years and elections to all the seats may be held at one go (one nation, one election) immediately after the simultaneous direct elections have been held for the assemblies. It will help instantly to capture the mood of the nation at one go, rather than having to wait for one or more biennial elections.

In conclusion, however, it must be said that there are many good points about having a second chamber. It takes a second look at legislations and thus provides a check on hurried legislation. It shares the burden of legislation with the Lok Sabha. It ensures the accountability of the executive through various joint as well as stand-alone parliamentary committees. The 12 nominated members, who have special knowledge or practical experience in various fields, add richness to the parliamentary debates.

Most of the problems that the critics associate with the Rajya Sabha are often about the functioning of the Indian Parliament as such. It would, therefore, be wrong to blame the Rajya Sabha for all the parliamentary disruptions and declining legislative work. The Indian Parliament has a splendid blend of continuity (Rajya Sabha) and change (Lok Sabha), in the true Indian tradition.

The debate regarding relevance of the second chamber is perhaps as old as the second chamber itself. The story goes that in the late 18th century, when the American constitutional framework was on the anvil, Thomas Jefferson one day protested to George Washington at the breakfast table against the establishment of two Houses in the legislature.

Washington asked him, “Why do you pour that coffee into your saucer?”

“To cool it,” replied Jefferson.

“Even so,” said Washington, “we pour legislation into the senatorial saucer to cool it.”

-The writer is former Secretary-General, Rajya Sabha

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