Reforming The Rajya Sabha Alone Won't Do, We Need To Reform The Way India Votes

What were the framers of the Indian Constitution thinking when they came up with the idea of having a bicameral legislature? What went wrong in the following decades and how do we fix it? A look at the evolution of Union legislative bodies and the road ahead.

In several elections over the last three decades (including the latest elections in Bihar), the Indian voter has given mandates to different parties for the state and central legislatures. Even as the voter has made distinct choices, the composition of the Rajya Sabha is significantly behind the curve on reflecting dynamic voter preferences.

The six year Rajya Sabha term effectively allows the member to continue even after the dissolution of the Vidhan Sabha of the state of that elected the member. This creates a significant disconnect between the people and the Upper House. Irrespective of your political affiliation, you cannot dispute that the current composition of the Rajya Sabha no longer reflects the latest voter preferences expressed through direct elections for state or central legislatures.

Direct Elections for the Rajya Sabha

The argument that the members of the Rajya Sabha somehow lack legitimacy, as they are not directly elected is flawed. We don’t directly elect the Prime Minister, we trust our Lok Sabha members to do that for us. Similarly, we leave the job of electing the Rajya Sabha members to members of our Vidhan Sabhas. Also our state and central legislators together elect the President and the Vice President – indirect elections are perfectly legitimate and constitutional.

In fact the Constituent Assembly itself was “indirectly” elected in 1946, by members of various provincial legislatures, to write a new constitution for a British India (not a free India). After Lord Mountbatten surprised the country by announcing an accelerated plan for Indian Independence and partition, the Constituent Assembly was split into two, creating the Indian Constituent Assembly (ICA) and the Pakistan Constituent Assembly (PCA). The PCA struggled to create a constitution for over 10 years before it was upstaged by a military coup. However, indirectly elected or not, the ICA drafted the Indian Constitution in a record period of 2.5 years and produced a masterpiece.

The lack of legitimacy of the Rajya Sabha, if any, comes from concerns about its performance and from the time-lag disconnect between its composition and voter preferences.

The Voting Systems Debate

The ICA examined several sophisticated voting systems before make its final choice. The ICA debated the proportional representation system vis-à-vis the first past the post or FPP system for direct elections to the Indian legislatures.

The FPP system selects one representative per constituency; votes split among losing candidates even when they amount to more than 50 percent of the constituency vote, go unrepresented in the legislature. On the other hand, the PR system distributes membership in the legislature in proportion to votes polled by a party (usually above a threshold, say 5 percent of votes). As every vote matters in determining seat share in the legislature, voter turnouts tend to be higher in PR as compared to FPP. Members are nominated by the party in the PR system and have no geographic constituency to represent in the legislature.

The clinching argument in the ICA in favor of FPP was how simple the system was for the average Indian voter. The winner in FPP only requires one vote more than competing candidates i.e. a “plurality”, (not a majority) and large parties can get a decisive share of power[1]. The ICA was also moved by historical evidence that FPP lead to two party systems and stable governments. Finally the ICA liked the territorial link between representatives and their constituents in FPP.

However, the ICA didn’t abandon PR, which became the system for electing representatives to the Rajya Sabha. Also, the ICA choose a very sophisticated Instant Run-off system to elect the President of India, which requires the voter rank candidates in order of preference and that the winning candidate receive >50 percent vote. [2]

Clearly, the framers of our constitution appreciated the merits of more sophisticated voting systems; while they concluded that the voting public in the 1950s could not handle sophisticated voting systems, they probably expected that the Indian voting system would evolve as Indian democracy matured.

The bicameral legislature debate

The ICA also debated whether India needs bicameral legislatures. Unlike the USA, which is a federation of sovereign states, the Indian states are not sovereign. Unlike the US Senate where each state, irrespective of its size, GDP or population, has two members each i.e. equal representation, the Indian constitution does not need a second house to provide an equalizing role. Unlike the UK, India does not have an entitled aristocracy that needs to be represented in an Upper House of Lords.

After a vigorous debate, the ICA concluded that the constitutional structure required a States House or Rajya Sabha as the second legislature to protect states interests and the quasi-federal structure. Given the experience of clashes between the House of Lords vs House of Commons in the UK (resolved only in 1911), the ICA limited Rajya Sabha’s powers.

Rajya Sabha cannot defeat money bills and/or otherwise pull down the Union Government. The number of Rajya Sabha seats is capped at 250, which ensures that in a joint sitting, the Lok Sabha can prevail. However, the Lok Sabha cannot steam roll the Rajya Sabha.

The ICA also chose the PR system for deciding the composition of the Rajya Sabha, in order to provide representation to minorities in state legislatures. The ICA rejected the FPP method of directly electing members similar to the US Senate and decided that “smarter” members of state legislatures can handle the complexities of Proportional Representation to elect the Rajya Sabha. [3]

The Experience and the Issues

The Indian Constitution has worked very well, creating a stable and robust democracy. India has elected 16 Lok Sabhas over 65 years and voter participation has increased over a period of time. Despite FPP, seven of the 16 Lok Sabhas failed to produce a single party majority or were hung assemblies. However, the Indian polity has matured to create stable coalitions that can handle hung assemblies; while the first four of the hung Lok Sabhas failed to complete their terms, the last three Lok Sabhas completed their full five-year terms.

In hindsight, the history of FPP in homogenous countries was a poor guide and given the Indian nation’s unprecedented diversity, a multitude of parties was perhaps inevitable. Despite a rocky start, some of the regional parties have been able to manage the contradictions of regional pressures and national priorities and join the national mainstream. Even though FPP did not lead to a two party system, it appears that Indian national politics is heading towards a system where two national alliances will compete with each other.

However, the lack of a fixed term for legislatures as per the Westminster system has created two disadvantages:

• with 29 states, two half-states (Delhi and Puduchery) and one Parliament, there are more than an election or two every year causing campaigning pressures on governance

• a majority in the Lok Sabha can potentially be at odds with the majority in the Rajya Sabha (as is the case now), depending on the election cycle.

In effect, the ruling party has to build a coalition between the FPP system in the Lok Sabha and the PR system in the Rajya Sabha. The ICA never envisaged such a possibility. While the polity has been able to handle the challenge of building post facto coalitions in the Lok Sabha, building a post facto coalition in the Rajya Sabha which is in a time warp vis-a-vis the latest political facts on the ground has not been feasible and does not appear feasible either.

Several members of our polity have called for reform of the Rajya Sabha. If the Rajya Sabha has to be reformed, then that leaves us with two options:

• The term in the Rajya Sabha be directly linked to the life of the Vidhan Sabha that elects the member. If a Vidhan Sabha is dissolved and a new one is elected, then new Rajya Sabha members, will need to be elected.

• People of every state directly elect Rajya Sabha members (under a PR system) simultaneous with general elections to the Lok Sabha.

The composition of the Rajya Sabha must continue under the PR system – there is no case for two houses being elected under FPP. Option (a) will create a Rajya Sabha that is truly representative of the Vidhan Sabhas but it will still create a cadre of Parliamentarians who have no interest in how the Union Government performs.
If an appropriate voting system can be designed, Option (b) can be more effective. It will create parliamentary allies who are elected and are held accountable together even as it allows the voter choices for central legislatures independent of his/her choice for state legislatures. Above all, option (b) can be used to address, a key issue of Indian politics, which is the entry of criminals.

Key Issue – Criminals in Politics

All the issues listed above are insignificant compared to the electoral success of dubious candidates with criminal charges including murder, rape and kidnapping. Having used the muscle power of goons to manage the electoral process, political parties reward these goons with tickets to compete in elections. Worse, they are now unable to keep them from seeking cabinet positions.

Compelling candidates to disclose criminal records has had no impact, as the voter does not have the option of “voting for the party but rejecting the candidate”. Introduction of the “None of the Above” (NOTA) option also has not had popular acceptance, as responsible voters, understand that NOTA is no different from not voting or casting an invalid vote. If re-elections can be forced in the event NOTA wins a plurality, may be the voter can be persuaded that NOTA is a real option but as per provisions now, NOTA is not voter empowerment.

Many of the elites, including former election commissioners, favor the idea of disqualifying candidates who are being tried for serious crimes but in the absence of a quick judicial remedy to dismiss trumped up charges, this proposal can jeopardize the legitimacy of democracy. [4]

Upgrade to Indian Voting System 2.0

What if, the voter has a choice to vote separately for “the party of governance” and for “the representative for her constituency”?

The biggest challenge to the contemporary Indian voter is resolving the conflicts between “who is a good representative” vs “which Party or Alliance (PoA) should form the next government?” Sometimes the choices are mutually exclusive – political parties often field terrible candidates. Voters feel compelled to elect them to support their party or elect their favorite PM/CM candidate.

The voting system followed by Germany offers us a solution under which alongside Lok Sabha elections, political parties can be allowed to nominate members to the Rajya Sabha based on their vote share in each state.

Each voter will be empowered with two votes – one for constituency representation (“the representing vote”) and another for selecting a party or alliance to govern (“the governing vote”)[5]. The voter would be free to cast the votes differently i.e. vote for a representative from one party and cast the governing vote to a different party. Such a system will be as simple as the FPP even as it will increase voter participation as each vote counts for determining the Rajya Sabha composition. The parties will also be motivated to field better candidates to avoid the ignominy of winning the governance vote and losing the representative vote.

Parties or Alliances (PoAs) would be required to publish a list of candidates (in order of preference determined by the party) who would be nominated to Rajya Sabha in proportion to governing votes received [6]. Candidates with pending criminal trials cannot be nominated for Rajya Sabha, they have to contest for representative votes only.

Lastly, the nomination route enables the lateral induction of talent into ministerial positions; many of our very able ministers would have never survived the hurly burly of electoral politics and even those that have survived, have been lousy constituency representatives. We should not expect our ministers to be supermen and be effective in two full time jobs – minister and constituency representatives.

Small parties would join the mainstream by pledging their vote share to an alliance if they can’t, on their own, cross the 5 percent threshold. Bigger parties even within an alliance can compete separately for a share of the governance vote and settle any disputes on who is the senior partner in an alliance.

Assuming that the governance votes are identical to representative vote (which would not be the case unless the parties field high quality candidates), we would have two houses – one based on FPP and another based on PR system. Without question, the ability of the voter to cast a separate governing vote would empower the voter to reject dubious candidates as well as legitimize the representative character of candidates who win despite criminal records. Also the system would encourage the formation of working pre-election alliances that can get 50 percent of the national vote in order to gain control of the Rajya Sabha.

A revision of the voting system can be the first of several, to make our democracy truly representative.

(Footnotes available in the next page)

1. In several elections in the early days of the Republic, the Congress party was the major beneficiary of the FPP system. Last time Congress benefited was in the 1984 General Elections, when the Congress won 80 percent of the seats in the Lok Sabha with 49 percent of the vote. i.e. the fragmented Opposition which together got 51 percent of the votes, having participated separately in the elections, got only 20 percent of the seats. In the recent 2014l elections BJP has been the beneficiary, winning 52 percent of the seats with 31 percent of the national vote.

2. If no candidate receives >50 percent vote, then the candidate with the least number of votes is eliminated and her votes are transferred to second preference candidates. The elimination process continues until one candidate receives >50 percent vote. The candidate, who won the first round plurality, may lose in the final round.

3. The US had passed the 25th Amendment in 1913 providing for direct elections to the Senate under FPP replacing the indirect elections by state legislatures.

4. Serious crimes would be those that entail a jail sentence of >5 years.

5. The German voter elects only one house under what is described as Mixed Member Proportionate system. About half the house is directly elected by constituency (under FPP) and about a half is nominated under PR. The nomination to the Bundestag is a little more complicated; parties that win a disproportionately high percentage of constituencies (compared to percentage votes) are penalized whereas parties those win a lower percentage of constituencies (compared to percentage of votes) benefit in the nomination process. As a consequence, the size of the Bundestag varies in each election, which can be very confusing as compared to the simple method articulated here. However, the final Bundestag seat allocation is more representative of the voting preferences of the German public on a national scale (not state wise percentage of votes received, as is proposed here).

6. At a later stage voters could participate in preference votes to determine the nominees.