Bicameralism in India
BY M. S. CHELAPATI
In one sense perhaps, the principle of bicameralism is traceable to the stratified social order of the Middle Ages in a regime in which the various social classes, the Grand Seigneurs, the petty Nobles, the Clergy and Burghers or townsmen constituted politically independent estates. It is curious to recall that in Sweden till 1866 these estates continued to sit in four Chambers. In France they sat in three Assemblies intermittently till 1614, and then did not sit at all till 1789 when the ill-fated Capetian King convoked the States-General and let in the deluge that his dissolute predecessor had so prophetically forecasted. In England right from the early times the three estates sat in two Chambers, the Peers of the realm, spiritual and temporal, sitting as the House of Lords and the commoners as the House of Commons. In England, which supplied the model to Europe and America, the two-chambered legislature was not the result of any deliberate design but the dental result of historical evolution.
In India, the bicameral principle was for the first time introduced in the Government of India Act of 1919. The Councils Acts of 1861 or of 1892 or the Government of India Act of 1909 contained no provisions with regard to the formation of bicameral legislatures. In the Government of India Act of 1919 for the first time it was provided that the Central Legislature was to consist of two Houses, the Council of State and the Legislative Assembly. The idea in creating the Council of State was to concentrate in that Chamber men of wisdom and sobriety. The Council of State was not a mere traditional House of Elders possessing much pomp and little power. It had the power to initiate Bills though the Bills for revenue and appropriation were to be made exclusively in the Lower House. A Joint Session was provided for in case of differences but as a matter of fact no occasion arose when the provision was resorted to.
Under the new Constitution the Federal Legislature is to consist of His Majesty represented by the Governor-General and two Chambers to be known respectively as the Council of State and the Federal Assembly.
Of the 260 members that the Council of State is to be composed of, 156 are to represent British India and not more than 104 to represent the Native States. Of the 156 seats which are allotted to the representatives of British India, 150 are to be allocated to the Governors’ Provinces, and the Chief Commissioners’ Provinces, and they should also comprise the representatives of the Anglo-Indian, European and Christian communities. 6 seats are to be filled by persons to be nominated by the Governor-General in his discretion. The Council of State is to be a permanent body, not subject to dissolution, but, as near as may be, 1/3 of its members are to retire every three years.
The representatives of the Sikh and Mahommedan communities are to be elected by the communities themselves, constituting themselves into territorial constituencies. The rest of the population, made up mainly of the Hindus, is to form territorial electorates for electing their representatives. Persons belonging to the Anglo-Indian, European and Christian communities are to be chosen by members of .electoral colleges’ consisting of their respective communities.
The persons who are to represent the States in the Council of State are to be appointed by their respective Rulers. The problem of allocation of seats among States, nearly 600 in number and of varying sizes, revenue, populations and importance, was naturally one of extreme difficulty. The number of seats available for distribution therefore among the States was to be allotted to the respective States on the footing of their dynastic importance and salute. This indeed is a very unique feature of our Constitution. Nowhere else in the world is representation made to depend upon the quantity of gun-powder! Hyderabad, the biggest and the most important State, gets 5 seats while Mysore, Kashmir, Gwalior and Baroda get, 3 seats each. The smaller States are divided into groups, and each group sends its allotted number of representatives.
The members of the Federal Assembly are in the main to be elected by the Provincial Legislatures. The Sikh and the Mahommaden representatives are to be elected by the representatives of those communities in the Provincial Assemblies, voting in ‘electoral colleges.’ The representatives of the Hindus will be chosen by ‘electoral colleges’ consisting of such of the members of the various provincial Legislative Assemblies. The scheduled castes are to have a certain number of seats reserved to them out of the general seats in some of the Provinces. In addition to these three communities mentioned above, the following communities and special interests are to have special seats reserved to them in the Assembly: the Europeans, Indian Christians, Anglo-Indians, representatives of Commerce and Industry, Land-holders, representatives of Labour, and Women. The election of representatives of these classes is to be done by appropriate ‘electoral colleges’ in cases where the seats are assigned to the Provinces and where seats are assigned to interests by the organisations concerned as the case may be. The allocation of seats to the States for the Federal Assembly is to be on the population basis.
The Chambers of the Federal Legislature are to be summoned to meet once at least in every year, and 12 months should not pass between their last sitting in one session and the date fixed for the first sitting in the next.
The Governor-General in his discretion may from time to time (a) summon the Chamber or Chambers to meet at such time and place as he thinks fit, (b) prorogue the Chambers and (c) dissolve the Federal Assembly. The Governor-General may address either Chamber, whether with respect to a Bill then pending in the Legislature or otherwise, and a Chamber or Chambers receiving such message has to consider any matter there-in referred to with all convenient despatch.
Under Section 30 of the Act, both the Houses are invested with identical and equal powers. Subject to the special provisions of this part of the Act, says the Section, with respect to Finance Bills, a Bill may originate in either Chamber; and subject to the provisions of the next succeeding Section, a Bill shall not be deemed to have been passed by the Legislature unless it has been agreed to by both the Chambers either without amendment or with such amendments only as are agreed to by the Chambers. The provision in the first sub-Section relates to the special method in regard to the non-votability of items covering (1) the expenditure of the Reserved Departments (2) of the expenditure for the discharge of the functions of the Crown in and arising out of its relations with the Rulers of the Indian States, (3) the expenditure for the discharge of duties imposed by the Constitution Act on the Secretary of State. The proviso in sub_Section 2 refers to the Joint Sessions, the procedure for which is laid down in Section 31 of the Act.
Any Bill pending in the Legislature shall not lapse by reason of the prorogation of the Chambers. A Bill pending in the Council of State which has not been passed by the Federal Assembly shall not lapse on the dissolution of the Assembly. A provision for the converse case is unnecessary because the Council of State is a permanent body. A Bill which is pending in the Federal Assembly or which having been passed by the federal Assembly is pending in the Council of State shall, subject to the notification by the Governor-General of his intention to summon the Chambers, lapse on a dissolution of the Assembly.
The most vital feature of the Indian Central Legislature is the absolute equality of powers of the Chambers. This is one of the cardinal features of the Constitution, protected from change under the Second Schedule. The only feature of inequality is that the Finance Bills cannot originate in the Upper Chamber, but however to become law they have to be passed by that Chamber, though in case of difference the machinery of joint sitting will be availed of. In respect of taxation and finance, the Council of State has full rights of interference with the proposals of the Lower House.
This however was not the scheme that was proposed in the White Paper which, though recommending for equality of powers, slightly restricted the powers of the Second Chamber. "The Federal Legislature will be bicameral," says the White Paper, "the two Chambers possessing identical powers except that Money Bills and votes of supply will be initiated in the lower Chamber and that the range of the functions of the Upper Chamber in relation to supply will be less extensive than those of the Lower Chamber." Paragraph 48 of the proposals was to this effect:
"The Demands as laid before the Assembly will there-after be laid before the Council of State which will be empowered to require, if a motion to that effect is moved on behalf of the Government and accepted, that any Demand which had been reduced or rejected by the Assembly shall be brought before a joint session of both Chambers for final determination."
The Joint Committee changed this method, and they say:
"We think that the Upper House should have wider powers, and that it should be able not only to secure that a rejected grant is reconsidered at a Joint Session of the two Houses but also to refuse its assent to any Bill, clause or grant which has been accepted by the Lower House. We think, therefore, that all demands should be considered first by the Lower House and subsequently by the upper and that the powers of each House in relation to any demand be identical, any difference of opinion being resolved at a Joint Session to be held forthwith."
The creation of two Chambers with identical powers is naturally likely to lead to differences of opinion. To meet that contingency a provision is made in S. 31 of the Government of India Act for the joint sittings of both the Chambers in case of differences. The method of joint session for the purpose of resolution of deadlock between the two Houses is amply supported by precedent in constitutional theory and practice. In the United States of America where the Senate enjoys and exercises both the powers of amendment and of rejection in regard to finance and other Bills there is the provision in the Constitution for joint sitting. In cases of disagreement between the two houses, a conference committee composed of members of both houses is appointed by the president of the Senate and the Speaker of the House of Representatives. The report of this Committee is generally accepted by both the houses. Not until the Bill is passed in identical terms by the two Houses is it sent up for the approval of the President who has the right to send it back to the Congress. Should it again pass by a 2/3rds vote in both the Houses, the President’s veto lapses, the Bill becomes law, with or without his assent.
A similar provision for resolution of deadlock by joint conference is contained in section 57 of the Australian Commonwealth Act. In the event of difference, the Governor-General is given the power of dissolving both the Senate and the House of Representatives simultaneously. If after such dissolution the House of Representatives again passes the proposed law with or without amendment and the same is rejected by the Senate, or the Senate passes it with amendments to which the House of Representatives will not agree, the Governor-General may summon a Joint Session of both the Houses and the members present at such meeting may deliberate and vote together on the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made. The decision of an absolute majority is taken to be the decision arrived at by both the Houses and then presented to the Governor-General for the assent of the Crown. Under the Australian Act an absolute majority is required. Under the South African Act only a bare majority is required, and so too under the Indian Constitution.
The most significant and outstanding features of the bi-cameral Federal Legislature are (1) the lower House being composed of members elected by an indirect method of election, and (2) the equality and identity of powers of the two Chambers.
There is no parallel in any Constitution, federal or unitary, where the Lower Chamber is elected on the indirect method. The direct method is justly regarded as the very essence of the idea of election to a democratic Chamber. In fact the White Paper proposed that the British Indian members to the Federal Assembly should be directly elected. The Joint Committee negatived the proposal and introduced the indirect method on a neither more intelligible nor convincing principle than that a directly elected Lower House in a country of this vastness would mean either that the constituencies will be insufferably big or that the House would be unmanageably large. It is doubtful whether there is much substance behind the recommendations of the Joint Committee in this behalf. During the Parliamentary debates this question came in for severe criticism. Curiously enough the most vehement criticism came from Mr. Churchill. In a speech less eloquent but perhaps more pointed, Mr. Cox said:
"In the White Paper, as a result of the Round Table Conference, the Scheme was very different from this one. We had a Lower Chamber directly representing the people of India, and we had a revising Chamber representing the Lower Chamber of the Provincial Legislatures. All that has gone. The original Upper Chamber has become the Lower Chamber and in the place of the Lower Chamber we have a Chamber representing the Princes and an Upper Chamber of the Princes. We have there reaction doubly enthroned."
The investiture of identical powers is again inconsistent with the general practice and the drift of the modern tendency. Even in the case of the Senate of America, regarded as the strongest Second Chamber in the World, and of the Australian Senate though not so powerful, the powers at any rate with reference to Finance Bills are not identical. The Senates of Canada and South Africa are weaker bodies, and the place of primacy always belongs to the Lower House. Said Major Nathan during the course of the Parliamentary debates:
"If a reference is made to Constitutions which have passed through this House for the purpose of framing the code of Government for the Dominions it will be found that at least of more recent years each one of the Acts has specifically limited the power of the Upper Chamber in reference especially to matters relating to taxation and Imposition of burdens and charges upon the people."
Quoting from the relevant provisions from the Common-wealth of Australia Act, the Union of South Africa Act and the constitutional practice in Canada, he pointed out the anomaly of the position. Supporting him, Major Attlee said:
"This Second Chamber is going to be predominantly representative of the richer portion of the population and there are also to be the representatives of the Provinces. It is going to be a far more reactionary body than the other place in our Parliament here. The Second Chamber is to be given powers with regard to finance equal to those of the Lower House. Not only are they to have power to reject financial proposals but powers to amend. I can see no reason for giving them equal powers. Once we get to the point of giving them equal powers we take away the utility of a Second Chamber at all. We regard this as one example of the way in which effective power at the centre is being taken away from the representatives of the Indian people."
Under section 60 of the Government of India Act bi-cameral legislatures are set up in the Provinces of Madras, Bombay, Bengal, United Provinces, Behar and Assam, and all other Provinces are to be unicameral. Where there are two Chambers of a Provincial Legislature they shall be known respectively as the Legislative Council and the Legislative Assembly. Where there are two Chambers the Legislative Council is to be a permanent body not liable to dissolution but, as near as may be, 1/3 of its members shall retire every three years. The Legislative Assembly unless sooner dissolved is to last for five years.
The provincial Lower House is entirely an elected body, the principle of election being the direct election. The Council is composed in good part of elected representatives though the Governor in his discretion is entitled to nominate a certain number of members. The usual principles of representation according to communities and of representation of certain special interests apply to the composition of both the Houses.
Though the consent of the Legislative Council for Bills is necessary, the powers of the Upper House in the Provinces are not like the powers of the Federal Upper House. Finance Bills cannot originate in the Upper House. Though under Section 78 the Budget is to be laid before both the Houses, the demands for grants are voted upon only in the Lower House. A Bill pending in the Legislature shall not lapse by reason of dissolution of the Assembly. A Bill pending in the Council and which has not been passed by the Assembly shall not lapse by reason of the dissolution of the Assembly. A Bill passed by the Assembly and pending in the Council shall lapse on the dissolution of the Assembly. Subject to the provisions in regard to joint session, a Bill will not be deemed to have been passed by the Legislature unless passed in both the Houses. If a Bill passed by the Assembly and transmitted to the Council is not, within twelve months of the receipt thereof, presented to the Governor for his assent, he may summon the two Houses for a joint sitting, provided however that the Governor may, in his discretion, summon the joint sitting even before the expiry of 12 months, if in his judgment the matter relates to finance or to the subjects comprising his special responsibilities. In the Joint Session the members of both the Houses can vote together. It will be seen that in the Provinces the joint session is contingent only upon the Council disagreeing with the Assembly. The converse case is not provided for, where the Assembly disagrees with the Council with respect to a Bill originated therein, and there is no chance for a joint session.
The argument that the Second Chamber would operate as a check upon the Lower Chamber so as to establish an equilibrium of power is unrelated to reality. For every Constitution in varying measures has seen to it that the Upper Chamber in ultimate resort has the worse of the argument. The House of Lords tried to assert its ancient privilege, and the Parliament Act of 1911 was the result. Besides, the need for an efficient check on democratic excesses may be real when interest in politics was confined only to the upper classes and government was to the many a sealed book. But in the present day, when through the Press, the Radio and the platform there is so much of community-thinking and expression, a Second Chamber is not necessary to correct the vagaries of the Lower. It is the public opinion, strong and articulate, that can control legislative power.
The danger of the Lower Houses having a tendency to seize upon a sudden impulse and initiating rash legislation is more imaginary than real. Arguing from the extraordinary delay in important measures being passed into law, such as the Irish Home Rule, the Education Act, the recognition of the Trade Unions. etc., Prof. Laski has said that every Act takes at least 30 years to reach the Statute Book. The criticism that is generally leveled against modern democracy is not that it is over-hasty but that it is too slow. Not haste but the want of it is the distinct feature of modern democratic rule.
By some of its protagonists a Second Chamber is supposed on occasions to be the more correct reflector of popular opinion than the Lower House. When the first Home Rule Bill of Gladstone was rejected by the House of Lords and after the short-lived Rosebery Ministry the country’s verdict was against the Liberals and distinctly in favour of the Unionists, it is said that there the House of Lords read the popular mind better than that of the Commons. Again in 1920 when the Senate of America refused to ratify the Versailles Treaty and the Covenant of the League of Nations, the Senate was more in touch with the American opinion than the President. In either case it is questionable whether those decisions were really wise. If the House of Lords had voted in a different manner the Irish question could have long ago been solved, and if the Senate had ratified the peace of Versailles the League of Nations would have gained in power and certainly in prestige.
It is sometimes suggested that the Second Chamber has a greater measure of sobriety and historical perspective by reason of the fact that it consists of not merely professional politicians but men who have attained distinctions in other walks of life. There is a higher intellectual level and more versatility in equipment. Eminent poets, jurists, physicians, great captains of industry who may not have the relish or the leisure for a more strenuous political life could be introduced into the upper Chamber. This again seems to be an argument based upon the past. In federal constitutions, except in Canada where the Senate is filled by nomination, the Second Chamber consists of elected representatives of the States. Increasingly we are hearing that even in England, where public service was regarded as very laudable, there is a growing disinclination on the part of men of wisdom and virtue to participate in politics. In America the best brains have always gone into business. The creation of peers in England has weakened this argument. As a recent writer says, "the House of Lords is filled with a large number of businessmen on whom peerages had to be conferred because knight-hoods were not sufficiently attractive."
Again it is said that whatever might be the case for bi-cameralism in a unitary constitution, it is unanswerable in a federal constitution. While the Lower House represents the people on a general population basis, the Upper Chamber is designed to incarnate the federal principle. As a matter of history during the constituent debates before the framing of the American Constitution, the States insisted upon equal representation if only to counterbalance the disparity in representation in the Lower House. Thus in America the 48 States elect an equal number of representatives to the Senate. So it is in Australia. In the old German and Austrian federations and in Switzerland the federal Chamber is elected by the States quo States. Equal representation therefore is of the very essence of the argument, a principle which is absent in the constitution of the Indian Council of State. Besides, the wide-spread party system is bound to have its effect in liquidating the rigour of the principle of State representation. A senator representing Florida and belonging to the Democratic Party will vote along with a democratic representative of the State of North Carolina. The insistence of States on their special rights and individuality is diminishing as the consciousness is slowly growing that planning has to be done on the nation-wide scale and that politics has ceased to be local. This tendency is marked in the Australian States.
On the contrary the case for unicameralism has gained in strength with a clearer perception of the nature and scope of Cabinet government. A strong co-ordinate Second Chamber is held to be inconsistent with the principle of ministerial responsibility. In England the Cabinet government is considered the success that it is, because in effect the House of Lords is merely a consultative body and England functions practically on uni-cameral principles. It is significant that one of the chief recommendations of the Bryce Committee, which went into the question of the House of Lords Reforms, was that the Upper House should not make ministries.
The case of unicameralism is on the increase. It is true that a large body of important States still retain bicameral legislatures. But it is equally important to notice that in a number of States there are only unicameral legislatures. I need instance only Bulgaria, Turkey, Finland, Istonia, Jugoslavia, Costa Rica and some of the Canadian Provinces, Queensland and many of the States of the old German and Austrian federations. There is no warrant for the assumption that in these States legislation is not as good as in States with bicameral legislatures.
Philosophically, bicameralism has been challenged by several thinkers. Nurtured in the strictest dogmas of the General Will of Rousseau, the Encyclopaedists were against the Second Chambers as being in the nature of unwarranted inhibitions to the expression of the popular will. Abbe Sieyes reflected this repugnance in a phrase that has struck to the mind of men. "If the Second Chamber agrees with the lower it is superfluous. If it differs it is obnoxious." Much to the same effect, Benjamin Franklin with his experience of the unicameral Pensylvanian State compared a democratic State with two Chambers to a carriage drawn by two horses one in the front and another in the rear. But it is idle to make this discussion resolve itself into a point and counter-point of metaphysical argument. A pragmatic approach is the only proper approach to this question.