Legislatures and Second Chambers

What each represents

Is the Rajya Sabha a federal chamber?

This is the examinable question, and the answer is a qualified no.

Against. Seats are allocated by population in the Fourth Schedule, so Uttar Pradesh has thirty one and Goa one, which is representation of people rather than of States as equal units. Members vote by party and not by State. The residence requirement was removed by amendment in 2003, so a member need not live in the State he represents. And article 249 lets the Rajya Sabha authorise Parliament to legislate on a State List subject in the national interest, which is a power against the States rather than for them.

For. Article 80 describes it as representative of the States. Article 249 and article 312 require its resolution for two important encroachments, so it is a check the States' representatives control. And the proviso to article 368(2) requires ratification by half the State legislatures for amendments affecting the federal structure, which is the real federal safeguard.

The honest answer is that the Rajya Sabha is a revising chamber with a federal name, and that the Bundesrat is what a genuinely federal chamber looks like.

A worked example

The federal government proposes a law that will be administered by the units and will cost them money.

Germany. The Bill requires the Bundesrat's consent, because it affects Land administration and finance, and the Bundesrat is composed of the very governments that will bear the cost. That is executive federalism working as designed.

India. The Rajya Sabha may delay and recommend, and a joint sitting under article 108 will carry the Bill if the government has a Lok Sabha majority. The States' protection is the legislative lists and article 368's ratification requirement, not the second chamber.

United States. The Senate must pass the Bill, and each State has two votes regardless of size, so a coalition of small States can block it.

The cases

One proposition in this chapter rests on a statute rather than on a judgment, and it is marked so that nothing is taken on trust: the residence requirement for membership of the Rajya Sabha was removed by the Representation of the People (Amendment) Act 2003. The decision upholding that change is not in this book's verified case bank, so it is not cited.

Facts. Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, asked whether Parliament could unilaterally introduce consultative elections for senators, impose term limits, or abolish the Senate.

Held, unanimously. It could not. Part V of the Constitution Act 1982 provides four categories of amending procedure, the general one being the 7/50 procedure under section 38 complemented by section 42, which requires a substantial degree of consensus between Parliament and the provincial legislatures; abolition falls under the unanimous consent procedure in section 41.

Why it matters here. It shows how entrenched a second chamber can be: Canada cannot reform or abolish its Senate without the provinces, whereas the United Kingdom removed most hereditary peers by an ordinary Act in 1999.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, held federalism to be a basic feature of the Indian Constitution.

Held, by nine judges. Federalism is a basic feature; a proclamation under article 356 is justiciable and must rest on relevant material.

Why it matters here. It is the answer to the argument that the Rajya Sabha's weakness means India is not federal: the federal guarantee lies in the lists, in article 368's proviso and in the justiciability of central intervention, not in the second chamber.

What beginners get wrong

"The Rajya Sabha is India's Senate." The Senate has equal representation for every State and is directly elected; the Rajya Sabha has neither.

"The Bundesrat is elected." Its members are members of Land governments, appointed and recalled by them under article 51, and each Land's votes are cast as a block.

"The Seanad represents vocations." Its panels are nominally vocational and its elections are conducted by councillors and members of the Oireachtas, so its politics are party politics.

Limits and criticism

A second chamber without a distinct principle of composition has no distinct claim to power, which is the case against the House of Lords and much of the case against the Seanad, which survived an abolition referendum in 2013.

Equal representation over-represents small units. Wyoming and California have two senators each.

A chamber of governments makes federal legislation an intergovernmental negotiation, which is efficient and reduces the transparency of law-making.

Quick revision

1. India: articles 79 to 88 and 89 to 98 for Parliament and its officers; article 80 composition of the Rajya Sabha; article 83 its permanence with one third retiring biennially.
2. United States: Article I section 3, two per State, Seventeenth Amendment direct election; Article V protects equal suffrage absolutely.
3. Germany: articles 50 to 53, members of Land governments, block votes.
4. Switzerland: article 150, two per canton; article 148 equality of the two Councils.
5. Canada: section 24, appointed by the Governor General on a regional basis.
6. Ireland: Article 18, eleven nominees, six university seats, forty three from panels.
7. Reference re Senate Reform, 2014 SCC 32: abolition needs unanimity under section 41.

Test yourself

1. Is the Rajya Sabha a federal chamber? Give the arguments both ways. Against: seats are allocated by population in the Fourth Schedule rather than equally; members vote on party lines; the residence requirement was removed in 2003; and article 249 empowers it to let Parliament legislate on a State subject. For: article 80 describes it as representative of the States, and articles 249 and 312 require its resolution for encroachments on State competence. The honest answer is that it is a revising chamber with a federal name, and that the real federal safeguards are the legislative lists and the proviso to article 368(2).

2. What makes the Bundesrat different in kind from the other second chambers? Its members are not elected representatives but members of the Land governments, appointed and recalled by those governments under article 51, and each Land's three to six votes must be cast as a block. It is therefore a chamber of executives, which fits a federation in which the Federation legislates and the Lander administer under articles 83 to 91.

3. Compare the entrenchment of the Canadian Senate with that of the House of Lords. The Canadian Senate cannot be reformed by consultative elections or term limits without the general amending procedure, and cannot be abolished without unanimous provincial consent under section 41 of the Constitution Act 1982: Reference re Senate Reform, 2014 SCC 32. The House of Lords is entrenched not at all; the House of Lords Act 1999 removed most hereditary peers by ordinary legislation.

4. Which second chamber is the most powerful, and why? The American Senate. It has equal legislative power with the House under Article I section 7, an exclusive power to confirm appointments and to consent to treaties under Article II section 2, the sole power to try impeachments under Article I section 3, and its equal representation of States is entrenched against amendment by Article V.