The Indian Constitution does not permit for a hierarchy between the two Houses of Parliament on the basis of a direct and indirect election.

The leader of the Rajya Sabha is reported to have said: “It is a serious question in a parliamentary democracy wherein the wisdom of a directly elected house is questioned repeatedly by the indirectly elected house.” A fundamental question that this observation raises is about the role of the Rajya Sabha in the constitutional scheme of the country.

It seems difficult to even imagine that the Finance Minister, who has been a leading lawyer and a constitutional expert, is not aware of the principles of “Checks and Balances” and “Separation of Powers” enunciated by the French political philosopher Montesquieu way back in 1748. While these are not specifically mentioned in as many words in the Constitution of India, the overall scheme of the Constitution leaves no doubt whatsoever that these are fundamental to the working of the Indian State.

Even otherwise, these are the bedrock of all effectively functioning democracies the world over.

Checks and Balances allow for a system-based regulation that allows one organ of the State to ensure that the others do not transgress their limits. All effectively functioning governmental systems apply the principles of “Separation of Powers” and “Checks and Balances” to allow for the organs of the State exercising their separate powers to hold each other reciprocally responsible to the assertion of powers as apportioned by law.

To clarify it a bit further, the principles do not apply only to the three pillars of the Indian State — the Legislature, the Executive, and the Judiciary — they are one of the guiding principles of the working of all branches of the State. And this is exactly how they apply to the Parliament. The provisions about the Parliament are given in Chapter 2 (titled “Parliament”) in Part V of the Constitution, titled “The Union”. The provisions extend from Articles 79 to 123. Article 79 reads: “There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.”

It is worth noting that the Parliament consists of three components, one of which is the President and the others are the two Houses of Parliament. Strange as it may feel, it seems the Leader of the Rajya Sabha needs to be reminded that following the “Separation of Powers” doctrine, each of these three components has separate and independent powers and areas of responsibility so that the powers of one component are not in conflict with those of the other components. And one of these areas of responsibility is to provide a check on and balance the actions of the other two components.

It is surprising that as knowledgeable person as the Finance Minister appears to be imagining a hierarchy between the two Houses of Parliament on the basis of a direct and indirect election. It may sound heretical but if this logic were to be followed, then the President would be lower in hierarchy than the Lok Sabha since the President is not directly elected by the People but the Lok Sabha is.

This issue, the function of what was then called the Upper House, was discussed at length in the Constituent Assembly. Just two examples from the debate on one day give us a sense of what the Founding Fathers envisaged. Professor Shibban Lal Saksena said on August 01, 1949, “Everywhere the Upper Chamber is intended to be a revising chamber when-ever there is any point of doubt or things have been done hastily; the Lower Chamber can consider the suggestion of the Upper Chamber and rectify a mistake.”

In the same vein and on the same day, Naziruddin Ahmad said, “The function of the Upper House is to give Bills a sober second thought. After proper consideration it suggest amendments which are often acceptable to the Lower House.”

After all the discussions, it is worth noting that “the Council of States” is mentioned before “the House of the People.” This is not likely to be a mere happenstance because this pattern is followed right through. For example, while the “Composition of the Council of States” is described in Article 80, that of the House of the People is described in Article 81.

Governance, and governance of a society as complex as India, is not simply an exercise of brute power. It requires difficult negotiations and compromises, even in a country like the US as Richard Neustadt has lucidly explained in his book Presidential Power. Possibly the most critical aspect of the power of the US President, according to Neustadt, is the power to persuade. Just as the US President cannot simply command and receive, the political grouping holding a majority of seats in the directly elected Lok Sabha also cannot simply command and receive. It has to negotiate and use its power to persuade if it wants to govern effectively.

Not having a majority in both Houses is not unprecedented or unique. Presidents in the US often face that situation and so did the National Democratic Alliance government led by Atal Bihari Vajpayee in 1999 and the United Progressive Alliance government led by Manmohan Singh in 2004. Both the governments, in 1999 and 2004, developed reasonably smooth working relationships with the opposition to legislate effectively. But they were not afflicted by the arrogance of having 282 seats (BJP) or 336 seats (NDA).

What the Leader of the “obstructionist” and indirectly elected Rajya Sabha seems to overlook in the arrogance of the high number of seats in the directly elected Lok Sabha is that the direct election that gave them seemingly brute majority came with the support of only 31 per cent (for the Bharatiya Janata Party) or 39 per cent (for the NDA) of 66.38 per cent of the 814.5 million eligible voters. What this means is that mere 20.58 per cent of the eligible voters voted for the BJP and 25.89 per cent voted for the NDA, which, based on the vote-seat conversion rate of the first-past-the-post system, resulted in 282 and 336 seats for the BJP and the NDA respectively.

It might be a sobering thought to remember that arrogance based on 20.58 per cent of the electorate can be slippery.

Source: Newslaundry

Prof. Jagdeep Chhokar
Prof. Jagdeep S. Chhokar (Founder and Trustee, ADR) has a Ph.D. from Louisiana State University, USA and is a former Director In-charge of Indian Institute of Management, Ahmedabad. He had earlier worked with the Indian Railways as a mechanical engineer and manager for over a decade, and as international marketing manager with a public sector organization for four years. He has also taught at Universities in Australia, France, Japan and the US.
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