A Stitch in time shall put Article 83 in line

  1. Introduction

The Constituent Assembly Debates of 3-1-1949[1] bear testament to the need of a bicameral Parliament. Article 66 of the Draft Constitution[2] endorsed the insertion of an upper house of Parliament. The spirit behind creating it was to ensure that the virtue of federalism thrives[3] and small parties or minority parties, which would otherwise not be able to get any member of their own elected in the system of election by majority vote, would be able to elect some members in proportion to their strength in the college of electors[4]. The need for one was justified by Shri Ayyangar on the following grounds:

(A) It would give opportunity to various people to take part in politics, we must have another house where the genius of the people may have full play.

(B) Whatever hasty legislation is passed by the lower house may be checkmated by the go-slow movement of the upper house.

(C) The upper house is a permanent body while the lower house is not[5].

  1. Elements of Articles 80 and 83(1)

After the approval from the Assembly we had an upper house as envisaged by Article 66 of the Draft Constitution, what in its current form now is Article 80:

  1. Composition of the Council of States.—(1) The Council of States shall consist of:

(a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and

(b) not more than two hundred and thirty-eight representatives of the States and of the Union Territories.

(2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union Territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.

(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:

Literature, science, art and social service.

(4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.

(5) The representatives of the Union Territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe.

Elements of Article 80

The forefathers wanted the Rajya Sabha to be a healthy blend of various successful upper houses in the world. Article 80 as it stands is a binary amalgamation of the Constitutions of “Eire” and “South Africa” from where we have adopted the nomination and representation of people with knowledge experience and indirect election respectively.[6] The Constituent Assembly has gone ahead with the concept of “proportional representation” in Article 80(4) and has expressly departed from the American system of “Equality of State Representation”. This was a topic that arose for consideration of the House and two members argued against the concept of proportional representation, which did not pass muster.[7] The medium of representation eventually resorted to bears reflection in the disparity of State representation at the Rajya Sabha, ranging from “1 in Manipur” to “34 in Uttar Pradesh”.[8]

Elements of Article 83

The framers of the Constitution after deciding the composition, prescribed the duration of the Houses of Parliament. Article 68(1) of the Draft Constitution, spoke about one-third members of the Council of States, shall retire on the expiration of every second year. The said article, which lay in the Draft Constitution when tabled for debate was not subjected to any amendments by the Assembly except one, which was immediately withdrawn[9]. Resultantly, we found the “principle of rotation” enshrined in Article 83(1):

  1. Duration of Houses of Parliament.—(1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

The rationale behind rotation: The provision for periodic retirement/one-third retiring every two years in Article 83 has been borrowed from the United States. Our model is in contrast to the British system where both Houses stand dissolved at the same time.[10] The Indian system is lauded for enthusing a fresh breath of talent periodically and not allowing a stalemate for the entire innings of a batch whereas, the British system on the other hand has been criticised on account of not replenishing the upper house with new members timely.[11] The Federal Court also while deciding a case relating to the validity of an legislation passed by both the Houses of Parliament observed that the merit of this plan is to prevent it from being turned into a stale body and to have into it a continual flow of fresh talents.[12]

  1. The dichotomy that has arisen

At the outset, it is essential to gainfully extract as to how the machinery of Articles 80 and 83 was set in motion. It all began with a quandary in 1952, where the term of a Member of Parliament in Rajya Sabha was 6 years and a third of the members had to retire every two years. The first batch resolved this predicament by subjecting themselves to a draw of lots where the House was divided into three batches of 72 members each. The first batch served for 2 years and retired in 1954, the second batch served for 4 years and retired in 1956 whereas the third batch served a full length of 6 years till 1958.[13] This mechanism was devised to give effect and meaning to Article 83, so that the “proportionate representation” of the States was injected with a verve of talent every 2 years. Thereby, facilitating the machinery of Articles 80 and 83 for appointments in future.

Bearing these two concepts of Articles 80 and 83 in mind, let us proceed with the predicament we are facing. As mentioned earlier, due to the vicissitudes or exigencies of a democracy [a few namely, (a) national emergency[14]; (b) State emergency[15]; (c) reorganisation of States[16]; and (d) no elections/nominations by the legislative assembly], there has been tinkering and tampering with the mathematical formula of Rajya Sabha members retiring after every 2 years. Rajya Sabha being a continuous house unlike the Lok Sabha has elections as soon as a vacancy arises.[17] There came a situation when there was no Legislative Assembly, no source[18] for representation of certain States at the Rajya Sabha during prolonged President’s rule in some of the States[19]. This resulted in all sanctioned seats being filled up in one year as soon as the exigency was terminated/lifted. We had therefore perforce to depart from the “rotation/one-third” rule. This deviance came about in the States of Punjab, Jammu and Kashmir and the National Capital Territory of Delhi. One cannot miss noticing that Articles 80 and 83 are intertwined; the principle of proportional representation and principle of rotation are akin and cannot function in isolation/silo. In other words, the effect of proportional representation reverberates in Article 83(1), which in turn provides mathematical lubrication for it to function.

The effect of the mathematical departure due to these exigencies in the abovementioned States has resulted in all members of Rajya Sabha retiring at once rather than every 2 years. The table below[20] will substantiate that all allocated seats of Rajya Sabha in these three States are vacated and filled up in the same year, thereby, being in conflict with the principles of “rotation” and “proportional representation”. The arguments mentioned that articulate the conflict are as follows.

Firstly, the said election of Members of Parliament at the Rajya Sabha is violative of the “principle of rotation” as conceived in Article 83(1) because if all the sanctioned seats are filled up in one go by the Legislative Assembly there will be no fresh talent entering the upper house after every two years. In the case of the three territories abovementioned, the admission/election of members takes place every once every 6th year as opposed to once every 2nd year. This happens because elections for all seats took place in one year and the six-year term as prescribed[21] led to the breach of the ?rd rule. Meaning thereby, that these three territories have stopped contributing to the pool of fresh talent of 80 members (?rd of total strength i.e. 238) coming in from the rest of the country.[22]

Secondly, the said pattern of election is also in conflict with the “proportionate representation” because it throttles the voice of the current mandate of people at the upper house. If the term of the all Members of Parliament at the Rajya Sabha representing a particular territory is 6 years running simultaneously from one date it will overshadow the 5-year tenure of the freshly elected Legislative Assembly at the State. To put it another way, elections for Rajya Sabha, which are supposed to take place every 2 years in the State do not take place for 6 full years thereby, denying the freshly elected Legislative Assembly in the State any say at the Centre. Therefore, in my submission “proportionate representation” of a State is not proper if the “latest mandate of people” at the State is denied a chance to elect their representatives at the centre, which otherwise, would get a chance to elect members twice in their term of 5 years.

Thirdly, in my submission, the timing of this election confers an unreasonable advantage on every second duly elected assembly coming into office subsequent to the neglected assembly. This is so because the said year, in which, all the seats fall vacant in Rajya Sabha of a particular State are opportunistically filled up by every second Legislative Assembly. Whereas, every assembly in compliance with the one-third rule, gets to elect only a fraction of the total seats allocated to their respective State at the Centre, as opposed to all the seats elected by a Legislative Assembly in the current pattern of elections.

Fourthly and most importantly, the principle of rotation if not abided to by other States as well, in times to come, may lead to non-fulfilment of the constitutional mandate of ?rd members retiring every 2 years. Currently, there is a play in the joints and flexibility provided by the word “nearly” in Article 83(1). Although, there are no consequences provided in case of breach of the article but the very essence lies in the fact that the principle of rotation should be followed in every State so as to ensure the smooth functioning of the constitutional mandate. The heart of Article 83(1) is that new members should enter from all parts of the country every two years to garner an environment conducive to changing times which shall translate into progressive laws being passed by Parliament. Only if the Legislative Assemblies in the States follow rotation, will the balance at the Centre of one-third remain; else, it is just a matter of time before we witness a mathematical impossibility resulting into a violation of Article 83(1).

The Statewise breakup of the number of seats for Rajya Sabha falling vacant in current and coming years

State/UT 2016 2017 2018 2019 2020 2021
Andhra Pradesh 4 3 4
Assam 1
Bihar 5 6 5
Chhattisgarh 2 1 2
Goa 1
Gujarat 3 4 4
Haryana 3 1 2
Himachal 1 1 1
Jammu & Kashmir* 4
Jharkhand 2 2 2
Karnataka 4 4 4
Kerala 3 3 3
Madhya Pradesh 3 5 3
Maharashtra 6 6 7
Manipur 1
Meghalaya 1
Mizoram 1
Nagaland
NCT Delhi* 3
Odisha 3 2 5
Puducherry 1
Punjab* 7
Rajasthan 3 3 3
Sikkim 1
Tamil Nadu 6 6 6
Telangana 2 3 2
Tripura 1
Uttar Pradesh 11 10 10
Uttarakhand 1 1 1
West Bengal 6 5 5

In the three States the discrepancy has arisen because of the following reasons:

(a) Punjab

Originally Punjab had 11 seats in the Rajya Sabha which were reduced to 7[23] after the Punjab Reorganisation Act, 1966[24]. All 7 seats now fall vacant in 2016 due to the fact that Punjab has had to endure emergencies which lasted for a long time. The eighth/last emergency in 1987 which lasted for about 5 years[25] has disturbed the calculation and resultantly, all the Rajya Sabha seats were filled up in 1992. The relevant term after emergency can be seen from the table[26] below:

Name Elected on Retiring on Name Elected on Retiring on
Jagjit Singh 5-7-1986 4-7-1992 S.S. Tohra 10-4-1998 9-4-2004
Harvendra Singh 5-7-1986 4-7-1992 Sukhbir Singh 26-2-2001 9-4-2004
M.S. Kalyan 5-7-1992 4-7-1998 R.S. Majithia 5-7-2004 4-7-2010
Virendra Kataria 5-7-1992 4-7-1998 V.S. Bajwa 10-4-2004 9-4-2010
Balbir singh 10-4-1992 9-4-1998 D.P. Sabharwal 10-4-2004 9-4-2010
Iqbal Singh 10-4-1992 9-4-1998 Sukhbans Kaur 29-6-2004 9-4-2010
Jagir Singh 10-4-1992 9-4-1998 B.S. Bhunder 5-7-2010 4-7-2016
S.K. Singla 10-4-1992 9-4-1998 Ambika Soni 5-7-2010 4-7-2016
V.K. Sharma 10-4-1992 9-4-1998 S.S. Dhindsa 10-4-2010 9-4-2016
S.S. Libra 5-7-1998 4-7-2004 M.S. Gill 10-4-2010 9-4-2016
R.S. Majithia 5-7-1998 4-7-2004 Naresh Gujral 10-4-2010 9-4-2016
Gulcharan Kaur 7-6-2001 4-7-2004 Avinash Khanna 10-4-2010 9-4-2016
B.S. Hamdard 10-4-1998 9-4-2004 Ashwini Kumar 10-4-2010 9-4-2016
Lajpat Rai 10-4-1998 9-4-2004

(b) Jammu and Kashmir

Jammu and Kashmir has suffered the same plight as Punjab. The cause of the malfunction in mathematics is due to the third emergency in 1990, which lasted for over 6 years[27]. Thus, all 5 seats[28] went vacant lately in 2015. The same can be seen from the table[29] below:

Name Elected on Retiring on Name Elected on Retiring on
G.N. Azad 30-11-1996 29-11-2002 A.S. Muhammad 30-11-2002 29-11-2008
S. Shariq 30-11-1996 29-11-2002 S. Soz 30-11-2002 29-11-2008
K. Thiksey 8-4-1998 25-11-2002 G.N. Azad 11-2-2009 10-2-2015
M.A. Rashid 29-3-2000 29-11-2002 S. Soz 11-2-2009 10-2-2015
T.S. Bajwa 26-11-2002 25-11-2008 M. Shafi 16-2-2009 12-1-2015
F. Abdulah 30-11-2002 29-11-2008 G. Ratnapuri 4-8-2009 15-2-2015
G.N. Azad 30-11-2002 29-11-2008 F. Abdullah 30-11-2009 29-11-2015

(c) National Capital Territory of Delhi

In Delhi, the reason for the imbalance stems from the lack of elections or nominations by the Legislative Assembly since a long time. One can notice that all 3 seats[30] are filled up at once with disregard to the rotation policy. The same can be seen from the table[31] below:

Name Elected on Retiring on
Janardan D. 28-1-2012 27-1-2018
Parvez Hasmi 28-1-2012 27-1-2018
Karan Singh 28-1-2012 27-1-2018
  1. Solution

There is a two-step based remedy to this aberration, the first step would cure the defect we have countenanced but the second step would ensure that this dichotomy does not arise in future and give the one-third balance some level of permanency.

(a) Let history repeat itself

The first model of the Rajya Sabha as it existed in 1952 can be replicated. To comply with retirement of one-third members every two years the members can submit themselves to a draw of lots and one-third of the members could retire as per the results of the draw with two years’ service and another one-third after four years of service and the last batch after a full 6 years.

The provision explaining the composition of the 1st session of Rajya Sabha finds mention in S. 154(2) of the Representation of the People Act, 1951:

  1. (2) Upon the first constitution of the Council of States the President shall, after consultation with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter.

(2?A) In order that, as nearly as may be, one-third of the members may retire on the second day of April, 1958, and on the expiration of every second year thereafter, the President shall, as soon as may be after the commencement of the Constitution (Seventh Amendment) Act, 1956, after consultation with the Election Commission, make by order such provisions as he thinks fit in regard to the terms of office of the members elected under sub-section (2) of Section 147.

The same model has been proposed by the Election Commission which finds merit with the Supreme Court[32] in a case relating to the State Legislative Council of Bihar suffering with the plight of filling all seats at once due to no elections taking place since a long time.[33]

Some credence can be drawn from the fact that new States, which have come into existence post-1952, also joined the Rajya Sabha with a new identity but had to elect members of Parliament at the Rajya Sabha on one date since this would be the first election to the Centre from the newly formed State. Thus even when all the seats needed to be filed up in the newly formed States, they have complied with the one-third rule and ensured the elections take place every two years in proper rotation. The same logic can be applied qua a State, which is recovering after the expiry of any kind of exigency and the exigency has tampered with the election clock.

(b) Legislative intervention would provide permanency

In case Parliament desires that this loophole should be plugged for all times to come because in foresight whenever there is any long-term exigency, it has the potential to stifle the periodicity that the clock shall set. Lessons can be drawn from the fact that every State in India barring two[34] has endured a President’s rule. Therefore, Section 154 of the Representation of the People Act, 1951 could provide for this exigency that the one-third rule shall be restored subsequent to any exigencies that may take place in the same manner as the first batch of Rajya Sabha.

  1. Conclusion

The underlying spirit of Article 83 as envisioned by the framers of the Constitution was to promote a continuum with concurrent needs of the people. The creation of a second chamber was to ensure that a federal flavour remains at the Centre. The federal structure in these 3 States, because of these unforeseen exigencies or perhaps the length of them, has in some been snared. Although the example of the 3 States above may not assume relevance straightaway because of the miniscule imprint of these territories as far as the numbers in Rajya Sabha are concerned i.e. 7 in Punjab + 5 in J&K + 3 in NCT Delhi = 15 affected seats. We may see a violation of the ?rd rule, when we have 60 such affected seats. However, what must not be lost sight of is that the functioning of Articles 80 and 83 is hinged on a delicate balance and that balance is disturbed in these three States. The symptoms that may tomorrow betray a constitutional mandate ought not to be ignored because the scenario in existence even today violates the basic structure[35] as it stifles the voice of latest mandate of people at the Centre. Therefore, the clock needs to be set right so as to preserve our federal values and restart the healthy periodical rotation.

* Chritarth Palli is a Law Clerk/Judicial Researcher at the Supreme Court of India. He is available at chritarth04palli@gmail.com.

[1]   CAD on 3-1-1949 is available on <http://parliamentofindia.nic.in/ls/debates/vol7p31m.htm>.

[2]   Art. 66 of the Draft Constitution has become Art. 80 of the Constitution of India.

[3]   See also The Concept and the Relevance of Second Chambers by Niren De can be visited on <http://rajyasabha.nic.in/rsnew/publication_electronic/Chambe.pdf>. and Ch. 2, p. 23 of Constitutional Provisions: Composition and Organisation by Sita Srivastava (although the author criticises the purely federal nature of Rajya Sabha but agrees that it was formed with a federal notion in mind).

[4]   Surendra Pal Ratawal v. Shamim Ahmad,  1984 SCC OnLine Del 205 : AIR 1985 Del 22, paras 10-11.

[5]   CAD 3-1-1949, p. 1195.

[6]   D.D. Basu Commentary on Constitutional Law (Vol. 8) discussing Art. 80 at p. 4831.

[7]   CAD 3-1-1949, Prof. K.T. Shah and L.N. Misra contended that—

(a) even if the constituent units may differ in size, population and resources for the purposes of a Federal Union one ought to make the States equal inter se; and

(b) if the States were not represented as equal units the upper house would be an unnecessary duplication of the lower house.

[8]   See Sch. 4 of the Indian Constitution.

[9]   See also CAD on 18-5-1949 Vol. 8 and Ch. 2, p. 45 of Constitutional Provisions: Composition and Organisation by Sita Srivastava.

[10]  D.D. Basu p. 4861 see also Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694.

[11]  See also A Unique Second Chamber by M. Anandam can be found on <http://rajyasabha.nic.in/rsnew/publication_electronic/Chambe.pdf> and The Rajya Sabha as I know it, Leela Damodara Menon can be visited on <http://rajyasabha.nic.in/rsnew/publication_electronic/Chambe.pdf> and The Rajya Sabha — Position, Powers and Functions under the Constitution by Jaswant Singh can be visited on <http://rajyasabha.nic.in/rsnew/publication_electronic/Chambe.pdf>.

[12]  Cf. Umayal Achi v. Lakshmi Achi, 1944 SCC OnLine FC 1 : AIR 1945 FC 25, 39.

[13]  First Rajya Sabha and its Leading Luminaries by Sumitra Kulkarni.

[14]  See Art. 352 of the Constitution of India.

[15]  See Art. 356 of the Constitution of India.

[16] See Arts. 3 and 4 of the Constitution of India.

[17]  See S. 154 of Representation of the People Act, 1951.

[18]  The source of elections of MPs of Rajya Sabha being the State Legislative Assembly, see Art. 80(4).

[19]  List of Members of Parliament at Rajya Sabha from the State of Punjab taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>. List of Members of Parliament at Rajya Sabha from the State of J&K taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>. List of Members of Parliament at Rajya Sabha from the NCT of Delhi taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>. (The tables below will substantiate as to how this change came about. The same has been unraveled in the passages dedicated to Punjab, Jammu and Kashmir and the NCT of Delhi later in this piece.)

[20]  The table consists of the current spread of Members of Parliament in the Rajya Sabha from all the States in the country.

[21]  See Section 154(1) of the Representation of the People Act, 1951.

[22]  The 3 States (Delhi, Punjab and Jammu and Kashmir) only contribute fresh talent once in 6 years whereas all other States in the country pump in candidates every 2 years.

[23]  See Sch. 4 of the Constitution of India.

[24]  See The Punjab Reorganisation Act, 1966 — This Act separated Haryana from Punjab, created the Union Territory of Chandigarh and transferred area from Punjab to Himachal Pradesh (Act No. 31 of 1966 on 18-9-1966).

[25]  President’s rule imposed from 11-6-1987 to 25-2-1992 for 4 years, 259 days due to insurgency and breakdown of law and order.

[26]  List of Members of Parliament at Rajya Sabha from the State of Punjab taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>.

[27]  President’s rule from 19-1-1990 to 9-10-1996 for 6 years, 264 days due to insurgency and breakdown of law and order.

[28]  See Sch. 4 of the Constitution of India.

[29]  List of Members of Parliament at Rajya Sabha from the State of J&K taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>.

[30]  See Sch. 4 of the Indian Constitution.

[31]  List of Members of Parliament at Rajya Sabha from the NCT of Delhi taken from <http://164.100.47.5/Newmembers/alphabeticallist_all_terms.aspx>.

[32]  Please find attached the order of the Supreme Court staying the judgment of the Patna High Court and soliciting the opinion of the Central Government on the suggestion of the Election Commission: <http://supremecourtofindia.nic.in/FileServer/2015-07-06_1436171094.pdf>.

[33]  Where a similar situation had arisen qua the State Legislative Council because elections to the Legislative Council of Bihar had not taken place since a long time, see also <http://indiatoday.intoday.in/story/supreme-court-allows-polls-for-bihar-legislative-council /1/449577.html>.

[34]  Chhattisgarh and Telangana have not yet served a President’s rule. (The State of Uttarakhand is the latest to have a President’s rule imposed) see <http://indianexpress.com/article/india/politics/presidents-rule-uttarakhand-arun-jaitley/>.

[35]  Federal structure is a part of basic structure as held in Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 and S.R. Bommai v. Union of India,  (1994) 3 SCC 1 : AIR 1994 SC 1918.

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