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22 January 2012

The Silver Lining of the Organized Ruckus

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By Amna Mirza

Institutions have been existing in political reality as per the wisdom of the theories which the founding fathers of the law of the land have borrowed. What may be their role, relevance and power in terms of theory and practice may be at loggerheads. ‘Change’ is the only variable that is constant in politics. The latter may induce new innovations in the working of political institutions. Every aspect has its good and bad sides, where in the quest for harping over what is bad, one needs to also ponder over the silent side.

An instance of this kind happened in the Indian democracy, where the Rajya Sabha carved a new niche for itself for deliberations, legislation and state concerns, in contrast to several observations of the political and academic commentators about its bleak existence. The article stresses that this change is contingent upon political realities and may not have been able to translate itself to the desired end, yet this pessimism need not take away the merits attached in the case.

The presentation of thoughts shall go in an ascending manner with the debate being initiated along the contours for understanding rationale for political institutions, how Rajya Sabha has been a non-starrer in terms of its cause of states’ concern, the changing dynamics of party politics and coalitions in India, and factoring in how the Anna movement gave it an impetus and an opportunity to translate its role.

Political Institutions

There are certain assumptions that underline the idea of Political Institutions. They are seen as a channel of opportunities and incentives for political behaviour. The rational choice analysis sees political institutions as endogenous: rules, designs and structures. The working of institutions also provides areas of conflict that stimulate tensions. Rules of game are never neutral but are part of struggle between challengers and holders of power. Stability of institutions comes from web of the historic and normative fabric of the polity.

The Second Chamber and Federalism

Bicameralism is an essential feature of Indian Parliamentary system. The house of states- Rajya Sabha was intended to be an important revisionary and deliberative chamber. The notion of Second Chamber was to act as a check on hasty legislations, provide more opportunities for scrutiny, and accommodation of diversity.

In India, the Rajya Sabha is supposed to have a federal character since it represents the units of the federation It is a permanent House not subject to dissolution like Lok Sabha. Under Article 249, it may by a special majority of two-thirds votes adopt a resolution asking the Parliament to make laws on subjects of the State list in the national interest. It has the exclusive right to initiate a resolution for the removal of the Vice-President. It can take steps to create All India Services by adopting resolutions supported by special majority in the national interest. It may not have the power to reject the bills passed by the Lower House but certainly it can revise and examine the bills with a view to find out the lapses. It can also initiate bills on its part and reduce the burden on the popular chamber.

The idea of state rights and equal representation in the second chamber is not present in Indian federalism. The residuary powers are with the Union. States also do not have separate constitution. The second chamber is not seen as a federal chamber.

The Government of India Act, 1919 provided that the Indian Legislature shall consist of the Governor-General and the two chambers, namely the Council of State and the House of Assembly. The Government of India Act, 1935 held that the Council of State should be a continuous body, not subject to dissolution. These provisions could not be enacted; however they gave the matter for the constituent assembly to look upon.

Lord Bryce held that the second chamber should be subordinate to the lower house and should have no control over exchequer. Sir Henry Maine in his book Popular Government, while analysing the House of Lords with U.S Senate holds that almost any Second Chamber is better than none. The Senate is an example how the American institutions mediate through popular impulses. He argued that popular governments are fragile, and in this scenario the second chamber is not a rival infallibility but an additional security, as four eyes are better than two, especially when a subject may be considered from different standpoints.
During the constituent assembly debates, the idea of second chamber was seen as clog in wheel of progress. It was held that the units should have representation in the Council of States on the basis of one member for every whole million population up to five million, plus one member for every two additional million, subject to a maximum of twenty for a unit. This formula was recommended by a sub-committee consisting of Dr. B.R. Ambedkar, Shri Gopalaswamy Ayyangar, Shri K.M. Munshi and Sardar K.M. Panikkar.

The second chamber was intended to hold dignified debates on important issues and 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 shall be placed before the Legislature. It was intended that the Constitution should provide for provisions in matters relating to finance, when there is conflict between the House of the People and the Council of States, it is the view of the House of the People that shall prevail.
Looking at the need for broadening the base of government, the motion for second chamber was adopted by the Constituent Assembly on 28 July 1947. The first election to the Council of States was held in March 1952 and the House was constituted on 3 April the same year. Though India is home to linguistic diversity, ‘Rajya Sabha’ the Hindi nomenclature, was adopted on 23 August 1954 and continues till date. Being an indirectly elected House, it has no role in the making or unmaking of the Government.

The second chamber shares with Lok Sabha powers over legislation, except finance bills, appointment of President, Vice President, it has special powers over Creation of All India Service (Article 312) and Legislation over State subject (Article 249). Thus, the second chamber was not as powerful as the US Senate. The cabinet ministers (the executive) may belong to either house and Constitution does not make any distinction between the two 
Houses in this regard.

The Rajya Sabha is more akin to the British House of Lords than the U.S. Senate. ‘Legislative Federalism’ prevails in the United States, where the states via the Senate exercise an important say, but the in parliamentary federations it is through ‘executive federalism’, that governments interact. Intergovernmental Relations in India have been largely an affair in ‘executive federalism’ , rather than ‘legislative federalism’, which via Rajya Sabha never got off ground.

Rajya Sabha appears to be more of a parliamentary second chamber than a federal second chamber because it represents states proportionate to their population rather than states qua states, unlike the America. It is indirectly elected by the elected members of the state legislatures which gives it a federal constituency with equal legislative powers except the money bills. Though its role and relevance have increased with diversification of the party system, yet this change has not led to raising the role of this house to level of legislative federalism.

Rekha Saxena holds that the Council of States is a deformed version of a federal second chamber, which can be called as a ‘secondary chamber’. It has not competed with Lok Sabha for powers, and did not create any difficulty in legislation. Yet this is less satisfying explanation to its efficiency and retention with its agenda marred by duplication of efforts, delays in legislation, composition dominated by retired politicians etc.

When the residual powers that are allocated to the states, the centre is constrained. In India, they are with the centre, and in U.S. case though the Tenth Amendment gives it to the states, it has not been significant. India is a federation that has common electoral law, but what is strikingly remarkable is that there are variances in party system, running from national party to state party, regional party. Not only do party systems and alliances differ across the states, but the number of parties competitive in state elections also varies within a state.

The Punchhi Commission (2010) suggested equal representation of states – small or big - in the Rajya Sabha to alter the balance of power in favor of smaller states in federal governance. It recommended the restoration of the requirement of ‘domicile’ in the state concerned for getting elected to the Rajya Sabha, abolition of differential regional representation in this House in accordance with population in favour of equal representation to states as in the U.S. Senate. The Rajya Sabha thus restructured could be allowed to become a true forum of states interests through its committees that are empowered to work out an alternative courses of action acceptable to the States and the Union.

The Party System Transformation

The post 1989 era saw the government being carried by the coalitions of parties, where there was a move away from centralisation and new forces contested executive authority. The failure of any national party to get absolute majority, made it imperative upon them to look towards the necessity of coming together with other regional parties.

In the Indian scenario, there was fusion of the power; the party leader was usually the prime ministerial candidate during the single party dominant phase. The period post 1990s, witnessed the rise of other parties at the government level. Similarly, in Canada, the liberal party dominated all the time, that the party men did not fight elections to propagate party agenda, but under the aura of party dominance. Later, there was rise of partisan politics as the 1993 elections saw emergence of other parties.

With the rise of coalit ion era, Indian party system under the influence of money and muscle power needs a lot of streamlining and functional congruence. There is a degree of discordant bicameralism, where the Lok Sabha is dominated by the ruling coalition, and Rajya Sabha dominated by opposition. Bi-partisan consensus is needed for any procedural changes in the working of federation via the amendment of the Constitution. The Government is being run along the informal logic of separation of power system, where governmental authority is systematically divided and segmented. India is no longer a majoritarian democracy as in Nehru, Indira and Rajiv Gandhi parliamentary days, but more akin to U.S. model.

The multi-party system was ‘federalized’, as Llyod and Sussane Rudolph’s opine, by the rise of regional parties. By giving more space to state/regional voices, the NDA and its successor UPA can be seen as a good exercise in federalism. It also signified crisis of majoritarian political culture. However as Lawrence Saez notes, that the rise of a multi-party system and regional parties has stalled the implementation of the Sarkaria Commission’s recommendations. At the same time, the time and speed of economic liberalization policies has moved the focus of the debates about federalism from intergovernmental cooperation between the central and state governments towards horizontal inter-jurisdictional competition among India’s states. This process of liberalisation juxtaposed with rise of coalition forces has tilted the balance towards a more decentralised federalism where the states have a renewed concern for their distinct development.

Debate in Parliamentary majority may have become less but all parties accept the role of loyal opposition. For instance, in relation to the issues of executive having an upper hand in international treaties, which has came to be politicized with the change in government regime from NDA to UPA. Earlier the Congress criticized the NDA for federal deficit in terms of consultative mechanism with the states and other stake holders, now the latter led by Congress came under fire by BJP.

With parliament of the day becoming a victim of adjournments, MPs rushing to the well of the house, slogan shouting, the executive is also in a hurry to get the business going, A. Surya Prakash defines the parliament using Laski’s ideas of ‘dull men’, ‘miscellaneous amateurs’, and casts doubt over political capacity of an alien institution like Parliament for the Indian scenario.

The August Movement

The Indian parliament is supreme like U.S. Congress but not sovereign like the British Parliament. The sovereignty of the Indian Parliament is not absolute, it is relative. The Constitution is superior to Parliament. Further, it is the people of India, who are superior to the Constitution.

A similar argument was presented by the team Anna in their campaign for the Jan-Lok Pal bill. Forty Two Years, Eight Standing Committees and Indian polity has no Lok Pal. This premise was often heard in deliberations in the argument that flowed for Anna Hazare ‘anshan’ or using fasting as a method to protest against the government.

The Jan Lokpal Bill seeks to create an institution of ombudsmen of citizen as an anti-corruption strategy for India. This institution is unique in other democratic countries as well. IT was in the fourth Lok Sabha that the plea for Lokpal was made. The bill lapsed then with the dissolving of Lok Sabha in 1969. Time and again, it was revived yet it did not successfully turn into a law.

Every idea has its context. The raging feelings behind the Team Anna movement was the delayed execution of the Lokpal bill, juxtaposed with rampant corruption as pointed out by the reports of Comptroller and Auditor General (CAG) upon 2-G spectrum, Commonwealth Games, misuse of Central Bureau of Investigation as a tool of political vendetta, falling standards of political executive, inflation, doubts upon credibility of political institutions like legislature, weak moral standards, amongst others.

In the Anna ‘August kranti’ with the announcement of passing the parliamentary resolution , the country was up in joy. There was a contested claim that it is Anna's victory over the team Manmohan as an indictment of Parliament, others saw it as a win-win situation, where the Parliament reflected the will of its people. There were also debates that it is a time of end of Anna's mobocracy at the Ram Lila Maidan and victory of Parliamentary democracy by fine tuning its legislative business. However, the average Indian who rejoices with half-won Anna victory has nothing to be happy about. The three demands- namely incorporation of lower bureaucracy under Lokpal, Lok-ayuktas in all states and citizens charter leave much to be desired from the perception of a strong Lokpal what Team Anna had projected.

The December Session

In pursuance of its goal of the strong Lokpal, the government got into action with a special days allocated for the debate and vote, once the legislative business was over for the winter session of Parliament. The Lok Sabha passed the Jan Lok Pal Bill, but the opposition played foul in backtracking on its promise of constitutional status to the Lokpal to cut through Rahul Gandhi’s brownie points in the Uttar Pradesh elections campaign agenda.

December 29, 2011 shall go down in the bylanes of the Indian History as a remarkable day where the upper chamber reasserted its role in contrast to its stereotypical role. The cause for it was the Lokpal Bill which was debated on 29 December when passed by the Lok Sabha earlier a day before. The UPA tried to put forward a strong face in order to avoid any embarrassment in terms of lack of adequate numbers in the upper chamber, juxtaposed with the fact that allies like Trinamool Congress were batting on a strong pitch of states autonomy in relation to the Part III of the Lok Pal Bill pertaining to Lok ayukts.

The day saw some stellar speeches in the house. Rajya Sabha could actually be seen to have arose its stature to highlight states concerns, where parties like TMC supported the bill in Lok Sabha but opposed it in Rajya Sabha. It was also an instance that showed trust deficit in terms of not only Team Anna and the government, but also between the allies and the government.

The Left echoed its sacred anti-market, anti-rich tenor of bringing the corporate class under the scanner of Lokpal. The BJP found a new love for the notion of federalism as an ample shield to sabotage every government proposal with its leaders Arun Jaitley terming the government version of Lokpal as ‘constitutionally vulnerable’. The BSP was candid in terms of demanding the autonomy of the Central Burean of Intelligence (CBI), in relation to the vested interests of the ruling party to counter the states where oppositional majority prevails. Regional players like Samajwadi Party, Rashtriya Janta Dal found a new aura around them as ‘spoil-sports’ with the government banking on them to either abstain or support them in voting.

With the government and opposition fine tuning the clauses and pointers of attack and counter-attack, the house debates did display a sheer class of intellectual integrity for the cause of national interest. It made us ponder over the fact that if every issue is dealt in a serious manner like the Lokpal Bill, perhaps the future of Indian polity is very bright indeed with a genuinely healthy functioning parliamentary democracy. It was remniscient of Daniel Elazer’s idea that the federal order unites separate states in away as to allow each to remain a political entity that he envisions as ‘self rule plus shared rule’.

Law Making is indeed a serious business of the legislature. The rejuvenated role of Rajya Sabha is indeed welcome in this regard. With the mid-night chaos and doubts over the integrity of the lawmakers to let the bill rips through the faith of the citizenry in the maw making establishment.

As pointed out earlier that the Indian polity has undergone rampant changes from that of single party system to that of multi-party coalition era. The debates in Rajya Sabha highlighted that if process of federalization or the rising importance of state causes by the non-centrist political players continues, it means that Rajya Sabha will have greater representation from the opposition states in the ongoing multiparty coalition era. The coalition government does not control Rajya Sabha. The constitutional theory sees it as an important chamber because for the legislation, it needs both houses to agree. In case of disagreement over a legislative matter, there is provision of joint sitting, where the Lok Sabha has numerical majority. Not on every legislation a government would be wise to confront the opposition.

This showed how the compulsions of factoring in the states’s concern is making India move towards a broad based model of federalism. The peculiarities of electoral gains wich gives the regional players better bargaining powers vis-a-vis the central government were best highlighted by several parties in their united stand to stop the passage of the bill.

The media projected a bleak picture of the functioning of the parliamentary democracy with claims over who broke the news first over the deferring of the bill. Though the reports of ‘choreographed ruckus’ by RJD’s Rajneeti Prasad and meticulous innovation of senatorial filibustering the Congress’s Narayan Swamy or that amendments pointed by the opposition were numbering more than hundreds is indeed surprising.

What may be the outcome of the Lokpal bill fiasco is a perplexing issue in many minds. Yet the silver lining in the cloud is that this very exercise of polishing our institutional parliamentary democracy is a good sign of change. The political class did lack intent to pass the bill, yet the dynamics of centre-state issues did compel them to sit till the midnight for serious work.

The nation needs more of such active and informed deliberations over the matters concerning national interests. Moreover, the upper chamber for a day changed its image to that of a federal second chamber. The federal state is in constant transformation, adapting to the various challenges as it deals with the multiple centres of power. Legislative scrutiny of all clauses and public discussion came out as favourable outcomes of this exercise.

[Amna Mirza is Ph. D Research Scholar, Department of Political Science, University of Delhi. She can be contacted at amnamirza2002@gmail.com]

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