The Rajya Sabha is not Federal – Constitutional Law and Philosophy

The previous post (here) noted how the framers of the Indian Constitution sought to guarantee the principle of one person one vote in the Lok Sabha through constituencies of equal populations revised after every census. This meant states would gain or lose seats in the Lok Sabha based on their fluctuating populations. The issue of states’ representation in Parliament was to be addressed through the design of the Rajya Sabha (or Council of States).

This post argues that the Rajya Sabha’s design failed to secure the interests of the states in the Union Parliament, largely due to the historical circumstances through which the Union was formed but also due to poor design choices by the framers.

Second Chambers and Territorial Distribution

With first chambers traditionally constituted based on population, second chambers in territorially large but unevenly populated countries represent an opportunity for geographic representation. Well-designed second chambers can ensure that national governance has the support of not only a majority of people but also a geographically distributed majority. This guards against a national government being overly focused on the policy priorities of populationally dense areas and underserving other regions.

Geographic representation becomes even more important when a constitution devolves governance functions to federal units. Lists II and III of the Seventh Schedule of the Indian Constitution are often read as the powers of the state governments, but they are also a delegation of duties to the state governments. States are the constitutional units tasked with securing governance on List II and III subjects. The distribution of power and responsibility necessitates that states be given meaningful representation in Parliament for two reasons. First, to ensure they can secure funding to fulfil their governance duties. Second, because states are tasked with implementing vast swathes of national legislation and policy, national legislation and policy must be reflexive to the interests of states. National governance does not mean much if it is actively resisted or mis-implemented by the states, a likely outcome if the states have no say in the creation of national governance. This is particularly important in a country like India where the Union Parliament has legislative powers over subjects that have significant local impact within states (e.g., ports, mines in the Union List or criminal law and forests in the Concurrent List where the Union frames overarching legislation).

Thus, second chambers guaranteeing representation to states are crucial federal institutions essential to effective governance in regimes where powers and responsibilities are distributed between the national government and federal units. The Rajya Sabha, however, was perhaps never truly seen as a federal institution by the framers, as its design history demonstrates.

Constitutional antecedents to the Rajya Sabha

The history of a second chamber in India can be traced to the Government of India Act 1919. The Council of State under the Act had 60 members, 26 of whom were nominated by the Governor General. The Governor General also had overriding authority over finances (S.26) and the membership to the second chamber was restricted through high property qualifications for both voters and candidates (Simon Commission Report, Vol. 1, 163). This was a conscious decision by the colonial government to cultivate a social class based on economic superiority which served imperial interests. The design understandably caused a long-standing suspicion of second chambers amongst Indian leaders who would eventually be part of the Constituent Assembly.

The Simon Commission tasked with revising the 1919 Act in fact noted that the design of the Council of State was not in keeping with the federal principles adopted in India. The 1919 Act and later 1935 Act already sought to devolve certain powers to provincial legislatures. The Simon Commission suggested a U.S. Senate-style bicameral model where federal units have equal representation in the second chamber (Vol. 2, 18). However, it also recognised that because India was made up of not just the British provinces but hundreds of small and often autocratic kingdoms, equal representation for every unit would face distinct issues. Unlike the U.S., Australia, or Canada where a handful of pre-existing and self-governing colonies came together to create a federated nation, India consisted of hundreds of provinces, princely states, and territories. Many were too small to warrant a seat in a second chamber while others were not trusted to represent the interests of their people. This tension between federal representation and the large number of princely states would come to dominate the design of the Rajya Sabha during the framing of the Indian Constitution.

The Rajya Sabha in the Constituent Assembly

When the Constituent Assembly began its deliberations, the belief was that the princely states would accede to the Union, give up powers over foreign affairs, defence, and communications, but ultimately have their own internal Constitutions. Against this backdrop, on 10 June 1947, a sub-committee of the Union Constitution Committee proposed grouping princely states into “units” to elect Rajya Sabha Members. It also laid down a formula with every “unit” getting 1 MP for every 1 million in population up to 5 million, and 1 additional MP for every additional 2 million in population after that.

This approach meant the Rajya Sabha was largely constituted based on population (though slightly favouring smaller states) as opposed to equal representation for every state. Crucially, grouping princely states into units and using a population-based approach ensured the Rajya Sabha was not dominated by princely states that were many in number but represented a small percentage of the population. Concerns were also raised in the Constituent Assembly regarding Rajya Sabha Members being elected by state legislatures, which in many princely states were filled with members nominated by local rulers (Shibban Lal Saxena, 31 Jul 1947). The final constitutional text in Article 80(4) guards against this, with only elected members of state legislatures being able to vote in Rajya Sabha elections.

However, as the framing of the Constitution progressed, the situation regarding the princely states changed. Following various carrot-and-stick negotiations by the newly independent Indian Government and the geostrategic and economic non-viability of many smaller kingdoms, the princely states were largely amalgamated into India. Dr. Ambedkar noted that the use of the phrase “Union of India” was expressly chosen to dispel any notion that India was a federation of states where the units retained any sovereignty. He noted that the “Union” of India implied “a single people living under a single imperium derived from a single source.” (4 Nov 1948). The grouping of princely states was dropped from the draft Constitution as the number of princely states was reduced to a handful, but the population-based formula for the second chamber was never revisited by the drafters. Thus, this sea-change in the makeup of India’s federal units did not translate into a material shift in their representation in Parliament.

A survey of the Assembly debates demonstrates that members of the Drafting and Union Constitution Committees never seriously advanced the federal credentials of the Rajya Sabha. Ananthasayanam Ayyangar’s defence of the second chamber was based on: (1) the opportunity to include a more diverse range of people in politics; (2) a guard against hasty legislation; and (3) the permanence of the second chamber providing continuity (3 Jan 1949). Interestingly, two members who did push the Rajya Sabha’s federal credentials had a radically different vision for it. K.T. Shah advanced an amendment for both equal representation of all federal units in the Rajya Sabha and direct elections to the Rajya Sabha. He noted that this would provide a meaningful differentiator between the two Houses.

“…in the Council of States, all constituent parts of the Union – call them States. Units or what you like – shall be equally represented. Whereas in the lower House, or the House of the People you may have representation in accordance with number, in the Upper House or Council of States the representation is more of the territory of the Unit of the special interests of the Unit or region, than of the people pure and simple.” (K.T. Shah, 3 Jan 1949)

Lokanath Misra put it even more bluntly,

“Since the Council of States is going to represent the States, it is but fair to the States units that these units should be dealt with as units and every unit is equally represented. Otherwise, there is no sense in saying that the States shall be represented in the Council of States. […] Therefore, if we do not accept this principle, that of taking every State as an equal unit, and sending in their representatives to safeguard or protect their special interests, there is no sense or meaning in having a Second Chamber to represent the States.” (Lokanath Misra, 3 Jan 1949).

These considerations did not form part of the final constitutional design. Article 80(2) as adopted by the Assembly allocates Rajya Sabha seats to states as per the Fourth Schedule. The distribution of seats in the Schedule largely (but not entirely) follows the Union Constitution Committee’s original formula of 1 MP per million till 5 million, and then 1 MP for every additional 2 million. However, with diverging populations, this too has been distorted.

Consequences of the Rajya Sabha’s design

The result of the final constitutional choice is that the Rajya Sabha is a second chamber based on population, not federal representation. Looking at figures from 1971 (when the country last took apportionment seriously), the Rajya Sabha maps against population almost perfectly with a tiny benefit for smaller states (all states here). But the inescapable conclusion is that the Rajya Sabha does not distribute power federally any differently than the Lok Sabha. In other words, The Rajya Sabha is less a Council of States and more a second House of the People.

The consequences of this design are significant. First, Parliament has no incentive to address the concerns of smaller states, and these states have nothing to gain from engaging with Parliament. Even where regional parties from smaller states elect MPs to the Rajya Sabha, they are incentivised to align with the ruling party in the lower house because even a bloc of small states espousing common interests has no power in the so-called Council of States. This erodes the legitimacy of Parliamentary laws for smaller states because they have no say in them and jeopardises the effective implementation by the states. It also allows a national government to underserve smaller states or sparsely populated regions with no consequence because representatives from these states lack power in both houses of Parliament. While electing Rajya Sabha members by proportional representation offsets this slightly, the difference between small and large states is still huge. For example, a government in Uttar Pradesh would have at least 15 Rajya Sabha seats, more than double the 7 north-east put together. In the future, developed states with falling populations could be in the same boat.

The design of the Rajya Sabha also incentivises overreach by the Union Government. If the states were equally, or even close to equally represented in the Rajya Sabha, the task of passing laws would become much more rigorous because laws would need the support of a majority of states, each with its unique concerns. The high political capital and effort required to address a majority of states concerns would likely incentivise the Union Governments to leave more matters to the states and play a diminished role. This would be especially true where the issues touched upon core local concerns of states but less true where the states wanted Parliament to legislate. Currently, because the Union Government does not need to engage with the concerns of all, or even a majority of states, it can continually extend its powers into ever more local concerns as long as it wins elections in certain large states.  

Even the leadership of the Rajya Sabha is not representative of the states’ interests. The Vice President of India, who serves as ex-officio Speaker of the Rajya Sabha, is elected by an electoral college of both Houses. With the Lok Sabha outnumbering the Rajya Sabha, the Union Government has a controlling interest in deciding the Rajya Sabha Speaker. There is no obvious reason why the Vice President has to be the Speaker and designs more concerned with federalism could have the Speakership rotate amongst the states or require the Speaker to have the support of a majority of states.

Finally, the plight of smaller states is made worse by the fact that the Rajya Sabha does not have power over Money Bills. This allows the national government to discriminate between densely and sparsely populated states in financial devolutions with no consequence. The denial of power over Money Bills is worthy of independent study but references to the House of Lords’ similar limitations in the Constituent Assembly are of questionable wisdom (see K.T. Shah, 10 June 1949). The House of Lords is an unelected and part-time body. The adage of ‘no taxation without representation’ sufficiently explains why the Lords’ power over budgetary legislation may have been limited. A survey of second houses around the world supports this line of reasoning. Second chambers with strong democratic credentials such as the German Bundesrat, the U.S. Senate and the Australian Senate are given power over financial legislation, while Canadian Senators, who are appointed by the Government, are not. Despite a handful of nominated members, the Rajya Sabha’s democratic credentials are strong. It is a body elected by representatives who themselves are directly elected by the people and the grant of full legislative powers is another reform that would further secure the interests of the states.   

Conclusion

The formula for state-seat allocation in the Rajya Sabha is not codified in the Constitution nor is there a requirement to revise allocation after the census. But the Rajya Sabha can nonetheless be a vital piece of the delimitation puzzle. The political problem created by the upcoming delimitation exercise is that states with declining populations are going to lose seats in the Lok Sabha. However, as the last post demonstrated, this is necessary to preserve the democratic legitimacy of the Lok Sabha by securing one-person, one-vote. But losing seats in the Lok Sabha does not need to mean becoming powerless. The benefit of a well-designed second chamber is that limited representation in the Lok Sabha can be offset by federal representation in the second chamber. However, as it is designed today, the Rajya Sabha does not secure the interests of the states, leading to real political anxiety about losing seats in the Lok Sabha.

This is not to say that state equality in the Rajya Sabha is a magic bullet or even suitable to the Indian context. But the Rajya Sabha today offers little that the Lok Sabha does not. Second chambers are designed along three key axes. The first is territorial or geographic representation. This can range from absolute inter-state equality in the second chamber (see Australia or the U.S.), degressive proportionality (see Germany), or even regional equality (see Canada). The second consideration is how members are chosen, ranging from direct elections to indirect elections or nominations. Finally, there are the powers and functions of the second chamber, ranging from purely recommendatory to full legislative authority. All second chambers sit somewhere on these three axes and there are pros and cons of each design choice. The upcoming delimitation exercise is an opportunity to re-consider all three aspects of the Rajya Sabha to truly make it a Council of States that works for the present Indian context.