Bicameralism in federal Constitution
The growth of ‘Bicameralism’ in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of ‘Second Chambers’ or Upper Houses of Parliament and better co-ordination between the Central government and those of the constituent units, was perhaps first laid down in definite terms with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the U.S.A., known as the Senate, was theoretically modelled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its composition and powers.
Since then, many nations have adopted a bicameral form of central legislature, even though some of them are not federations. On account of Colonial rule, these British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950.
In Canada, the Parliament consists of the House of Commons and the Senate (‘Upper House’). Likewise, the Parliament of the Union of India consists of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which is the Upper House). In terms of their functions as agencies of representative democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada, namely the Lok Sabha, the House of Representatives and the House of Commons broadly follow the same system of composition.
The need of Upper House
As of now, Members of the Lower Houses are elected from pre- designated constituencies through universal adult suffrage. The demarcation of these constituencies is in accordance with distribution of population, so as to accord equity in the value of each vote throughout the territory of the country. However, with the existence of constituent states of varying areas and populations, the representation accorded to these states in the Lower House becomes highly unequal.
Hence, the composition of the Upper House has become an indicator of federalism, so as to more adequately reflect the interests of the constituent states and ensure a mechanism of checks and balances against the exercise of power by central authorities that might affect the interests of the constituent states.
The role of second chamber in the context of center-state relations
Many Political theorists and Constitutional experts are of the opinion that in the contemporary context, ‘Second Chambers’ are losing their intended characteristics of effectively representing the interests of states and are increasingly becoming ‘national’ institutions on account of more economic, social and political affinity developing between states. Hence, a comparative study of the working of bicameralism can assist the understanding of such dynamics within a Federal system of governance.
As mentioned earlier, the emergence of Second Chamber in a Federal context was first seen in the Constitution of the United States. The thirteen original colonies had been governed under varying structures until independence from British Rule and hence the element of states’ identity was carried into the subsequent Union. For purposes of the Federal legislature, there were concerns by the smaller states that the recognition of constituencies on the basis of population would accord more representation and power to the bigger and more populous states.
Furthermore, in that era, voting rights were limited to white males and hence the size of the electorates was relatively larger in the Northern states as compared to the Southern states which had a comparatively higher proportion of Negroid population who had no franchise. Hence, the motives of Federalism and ensuring of more parity between states of different sizes resulted in a compromise in the drafting of the constitution. While the Lower House of Congress, i.e. the House of representatives was to be constituted by members elected from Constituencies based on population distribution, the Senate was based on equal representation for all states.
Initially, the two senators from each state were elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been elected by open adult suffrage among the whole electorate of a state. This inherent motive of ensuring a counter-balance to the power of the federal government and larger states has persisted in the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested with certain extra-legislative powers, which distinguish it from Second Chambers in other countries.
Moreover, the Senate is a continuing body with senators being elected for 6 year terms and 1/3rd of the members retiring or seeking re-election every 2 years. With the addition of more states to the Union, the numerical strength of the U.S. senate has also increased.
The Parliament of the Dominion of Canada in its present from was established by the British North America Act, 1867 (also known as the Constitution Act, 1867). Canada to this day remains a constitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the nominal head of state.
Prior to the 1867 Act, the large territories that now constitute Canada (with the exception of Quebec, which had the historical influence of French rule) were being administered as distinct territories. This act established a confederation among the constituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature comprising of the House of Commons and the Senate. The Senate was given two major functions in the constitution.
First, it was to be the chamber of “sober second thought”. Such a limit should prevent the elected House of Commons from turning Canada into a “mobocracy”, as the framers of Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the constitution, thus ‘preventing the Commons from committing any rash actions’. While the House of Commons was to be constituted through constituency based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces.
The number of senators from each state has consequently varied with changes in the confederation. However, the Canadian senators are appointed by the Governor-General in consultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and consequently also to the Federal executive to an extent. This system of appointment of senators was preferred over an electoral system owing to unfavourable experiences with elected ‘Second Chambers’ like the Legislative Councils in Ontario and Quebec, prior to the formation of the Confederation in 1867.
Another compelling factor behind the designing of a weak senate was the then example of the United States where some quarters saw the Civil war as a direct consequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owning to its method of composition.
The genesis of the Indian Rajya Sabha on the other hand benefited from the constitutional history of several nations which allowed the Constituent assembly to examine the federal functions of an Upper House. However, ‘bicameralism’ had been introduced to the provincial legislatures under British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal legislature, whose members were to be elected by the members of provincial legislatures and in case of Princely states to be nominated by the rulers of such territories.
However, on account of the realities faced by the young Indian union, a Council of States (Rajya Sabha) in the Union Parliament was seen as an essential requirement for a federal order. Besides the former British provinces, there were vast areas of princely states that had to be administered under the Union. Furthermore, the diversity in economic and cultural factors between regions also posed a challenge for the newly independent country.
Hence, the Upper House was instituted by the Constitution framers which would substantially consist of members elected by state legislatures and have a fixed number of nominated members representing non-political fields. However, the distribution of representation between states in the Rajya Sabha is neither equal nor entirely based on population distribution. A basic formula is used to assign relatively more weightage to smaller states but larger states are accorded weightage regressively for additional population.
Hence the Rajya Sabha incorporates unequal representation for states but with proportionally more representation given to smaller states. The theory behind such allocation of seats is to safeguard the interests of the smaller states but at the same time giving adequate representation to the lager states so that the will of the representatives of a minority of the electorate does not prevail over that of a majority.
Kuldip nayar v. Union of India, (2003)