Rajya Sabha, the Safety Valve of Indian Federalism | The Wire

Op-Eds by Public Law · March 8, 2019
Author(s): Akshat Agarwal and Kevin James

The recent conclusion of the budget session of parliament led to the lapsing of certain contentious bills such as the Citizenship (Amendment) Bill, 2016 and the Triple Talaq Bill. While the former sought to make it easier for non-Muslim persecuted minorities from certain neighbouring countries to apply for citizenship, the latter criminalised the practice of instant divorce amongst Muslims.

Both bills had been passed by the Lok Sabha, which is the directly elected House of People, but were pending before the indirectly elected Rajya Sabha, or Council of States (elected by members of state legislative assemblies).

Bills that are pending in the Rajya Sabha which have been passed by the Lok Sabha lapse upon the dissolution of the latter. Since the term of the 16th Lok Sabha will end in May, these bills have effectively lapsed.

That bills passed in the Lok Sabha lapse during their pendency in the Council of States is indicative of the significant role played by the upper house, which acts as a safety valve of our federal constitution.

The Lok Sabha is often characterised as the embodiment of the will of the people, as against the indirectly elected Rajya Sabha – which has been criticised as an impediment to democratic expression. Some of these arguments can be found in constituent assembly debates as well, and post-Independence, there have been multiple resolutions and private member bills moved in the Lok Sabha seeking to abolish the Rajya Sabha altogether.

This view, however, proceeds from a skewed understanding of the constitution, which attempts a fine balance between elected majorities in the lower house and federal interests through proportional representation in the upper house.

The choices implicit in constitutional design

The design of the constitution contains many instances where a balance is sought to be struck between equally significant, but often competing values. While some of these design elements are apparent in the text itself, almost 70 years of constitutional practice has brought certain structural features to the fore.

The Rajya Sabha is one example of such a structural design choice.

From the discussions in the constituent assembly, it emerges that the Rajya Sabha was intended to play certain roles as a permanent house (one-third of its members retire every two years). These included providing a forum for more experienced legislators, reconsidering bills passed by the Lok Sabha and offering a degree of continuity in the underlying policies of laws passed by parliament.

Most importantly, however, it was conceived as a means to institutionalise the federal principle of power-sharing between the Centre and states.

As explained by Dr. B.R. Ambedkar in the constituent assembly, a federation envisages a dual polity or two levels of government. The government at the Centre and the states are co-equal, in the sense that they derive their legitimacy and authority from a common source – the constitution itself. The upper house in parliament, fashioned as a Council of States, can be understood as an institutional arrangement through which constituent units become part of the decision-making process at the central level itself.

The Rajya Sabha thus represents a crucial component of the constitutional checks and balances scheme, in addition to the commonly identified examples of responsible government and judicial review. While checks and balances usually operate between the executive, legislature and judiciary, the Council of States acts as a safety valve within the legislature itself, easing federal tensions.

This feature is also the most fundamental difference between the Rajya Sabha and the House of Lords, the British equivalent of an upper house. The United Kingdom, being a unitary country, and not a federal one, means that its upper house plays a very different and more limited role.

Comparatively, the Rajya Sabha is more analogous to the upper houses of the American and Australian legislatures, since these are federal countries. In fact, these countries institutionalise the principle of federalism more strongly than India, by providing equal representation to all states in their upper houses. This is in contrast with the Rajya Sabha, where states are represented proportional to their relative populations.

The Rajya Sabha in practice

Until the state legislative assembly elections of 1967, the Congress was the singular dominant force in Indian politics – both at the Centre and state levels.

However, this changed with the emergence of regional parties, which formed governments in several states including Kerala, erstwhile Madras and West Bengal. For the first time, opposition parties had significant representation in the upper house. This trend has continued ever since.

An example of how the Rajya Sabha has operated as a safety valve can be illustrated by the fate of a local self-government bill passed by the Rajiv Gandhi government in the Lok Sabha in 1988. It was defeated in the Rajya Sabha due in part to the fact that the opposition (non-Congress) parties in the upper house saw it as an attempt to create a direct connection between the Central and local governments by bypassing state Governments.

Leaving aside the question of whether or not this particular intervention was desirable (the 73rd and 74th amendments gave constitutional recognition to local self-government in the 1990s), the incident highlights how the upper house can operate as an effective tool for articulating state interests at the heart of central decision-making.

The Citizenship (Amendment) Bill, for instance, was widely condemned by political parties in the Northeast, and the possibility of it passing through parliament had sparked protests across the region.

Concerns surrounding the grant of citizenship to refugees touch upon core issues of safeguarding local identities and maintaining the delicate demographic balance in an area with a long history of violence and insurgency. Even the local units of the ruling party at the Centre had protested against the bill, underlining the deeply divisive nature of the proposal.

While it was perhaps possible that, even if passed, the law may have been subject to judicial review, it is significant that it did not reach that stage at all. Instead, a checks and balances role was played within parliament itself, through the upper house.

This demonstrates the accuracy of the following observation made in the Punchhi Commission Report (2010): “the principle of equality and equal representation in institutions of governance is as much relevant to States as to individuals in a multi-party, diverse polity”.

The importance of the Rajya Sabha as a federal safety valve – a carefully framed constitutional design choice – thus cannot be overstated.

Akshat Agarwal and Kevin James are Research Fellows at the Vidhi Centre for Legal Policy. Views expressed are personal.

Originally published – https://thewire.in/government/rajya-sabha-the-safety-valve-of-indian-federalism 

About Akshat Agarwal:

Akshat is a Research Fellow at Vidhi and currently works with the Vidhi Aid initiative. At Vidhi, he has advised on projects relating to the regulation of the digital economy, privacy and federalism. Currently, he is working on research projects relating to LGBT+ rights, withdrawal of care from terminally ill patients and public health. His research interests include public law, human rights, family law and gender and sexuality. Akshat is an alumnus of the National Law School of India University, Bangalore and was previously an Associate at the leading Indian law firm Khaitan & Co., where he worked with their disputes and regulatory practices. He has been published in peer reviewed journals as well as media outlets such as The Wire, LiveMint etc., and has also contributed to international blogs such as the Oxford Human Rights Hub and the IACL-AIDC blog. He served as the Chief Editor of the National Law School of India Review and was also on the editorial board of the Indian Journal of International Economic Law. Link to full bio

About Kevin James:

Kevin is a Research Fellow with the Public Law vertical at Vidhi. His research interests include constitutional law, federalism, and various aspects of Centre-State relations. Kevin graduated with a B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur in 2018. He writes regularly for newspapers and digital platforms including the Hindu, Scroll, Firstpost and the Wire on a range of contemporary issues. While interning at Brookings India, he co-authored a paper on India’s Model Bilateral Investment Treaty. He has also interned with the Centre for Civil Society, law firms including AZB & Partners and Cyril Amarchand Mangaldas, and the Advocate General of Maharashtra. Link to full bio