Rajya Sabha

Parliament of India

Last week Rajya Sabha elections were held across various states in India. While the whole process of camping, voting and delayed counting was going on, a dear friend remarked, “What a waste of taxpayers’ money!! Why this whole process of complicated counting of votes? Why not just have one House where the law makers are directly elected by We The People of India.”

I went whole hog and tried explaining him the process but I guess I wasn’t still able to convince him. So this one is for you my dear friend and like they say – शुरू से शुर शुरू करते हैं !!

On 3rd January 1949, the Constituent Assembly took up Article 66 of the Draft Constitution (Article 79 of the Final Constitution) for debate & deliberate to constitute a Parliament for India that was to comprise of The President and two houses – Council of States (Rajya Sabha/Upper House) and the House of People (Lok Sabha/Lower House).

Shri Loknath Mishra

Constituent Assembly member from Odisha Shri Lokanath Mishra moved an amendment to remove the term ‘Council of States’ from the Draft Article – he did not want an upper house. Since the Draft Constitution did not provide for such upper house, he saw no need for an upper house at all – “it was a waste of public money and time.” (Just the kind of point my friend put forth)

MA Ayyangar  –  A Constituent Assembly member from now Tamil Nadu and who later went on to become the Speaker of The Lok Sabha defended the need of The Rajya Sabha. He argued that parliament needed an upper house for the following reasons:

Shri MA Ayyangar
  • First, that politics must be a space for a range of people to take part; the upper house would be space ‘where the genius of the people may have full play’.
  • Second, the upper house would act as a check on any hasty legislation that lower house may pass.
  • Third, the upper house, unlike the lower house, would be permanently elected.

And the motion was accepted and lo and behold we have had the Upper House ever since.

It’s the way our Constitution provides adequate Checks and Balances. The no. of seats that each state is allocated is according to its population. Its members are always there to deliberate, discuss and approve/disapprove various important matters, case in point being to validate the Emergency under Article 352 for a limited period when the Lok Sabha remains dissolved.

A brute majority in Lok Sabha of one party does not end up becoming tyrannical and thus its actions are to be checked by the Upper House whose members are elected by the state legislature and have different considerations to look into.

Now let us look at the tables below. This data shows the number of seats and the share in the respective houses of the various political parties. For better understanding I have just taken the top 6.

LOK SABHA

Top 6DetailsSeatsPercentage
1BJP30155.7%
2INC539.8%
3DMK244.4%
4Trinamol Congress234.3%
5YSR Congress224.1%
6Shiv Sena193.5%

RAJYA SABHA

Top 6DetailsSeatsPercentage
1BJP9538.8%
2INC2911.8%
3Trinamol Congress135.3%
4DMK104.1%
5BJD93.7%
6AAP83.3%

While the top 4 parties remain the same in both the houses the next two are different. Even in terms of percentage points how different it is. While BJP on its own have around 55.7% Lok Sabha seats in the Rajya Sabha is way lower at 38.8%.

Ironically none of the other 4 parties besides the Congress are the allies of the BJP at least officially.

Rajya Sabha

In the 8 years of the NDA rule we have seen various controversial and questionable laws that it wanted to pass had to be put on hold due to its inability to garner nos. in the Upper House. Bills related to Land Acquisition and the Lok Pal  / Lok Ayukta which sailed thru the Lok Sabha were suitably amended by the Rajya Sabha.

Thus our constituent members had the foresight to envisage such a situation which necessitated the creation of Upper House.

One of the Sanskrit Shloka from The Mahabharat has been inscribed in the Parliament building:

” न सा सभा यत्र न सन्ति वृध्दा:, वृध्दा न ते ये न वदन्ति धर्मम्।

धर्म स नो यत्र न सत्यमस्ति , सत्यं न तत् यत् छलमभ्युपैति॥ “

Which means  –

That’s not an Assembly where there are no wise persons,

Those are not wise, who do not speak with righteousness,

That’s no righteousness where there is no truth,

That’s not the truth which leads one to deceit.

So let the people of our country be benefitted from the counsel and wisdom of the members of both the houses.

I hope my friend, I am able to convince you now.

Uniform Civil Code

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BJP led NDA Government has asked the Law Commission to examine the issues relating to the implementation of Uniform Civil Code. This is the first time a Government has asked the commission which has a advisory role on such a politically controversial legal reform.

Our Constitution under the Directive Principle of State Policy Article 44 states:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Text quoted below is what Baba Saheb Ambedkar had to say when the issue of adding proviso / amending the above article which was then Article 35 was being discussed by the Constituent Assembly on the 23rd November 1948:
22“In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. When the amendments to certain fundamental rights are moved, it would be possible for me to make a full statement on this subject, and I therefore do not propose to deal with it here.
My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a Uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.
Coming to the amendments, there are only two observations which I would like to make. My first observation would be to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. That is not all.
My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India.
I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applied to all-not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal form of law and not a Patriarchal form of law.
The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathyam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago. Therefore if it was found necessary that for the purpose of evolving single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the Civil code had done great violence to the sentiments of the Muslim community.
My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these amendments and I oppose them.”

Constituent Assembly member Mr. Naziruddin Ahmad had this to say about Uniform Civil Code: “The goal should be towards a uniform civil code but it should be gradual and with the consent of the people concerned.”

Another member Mr.Hussain Imam said : “I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant date. For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles. Then, you can have uniform laws. Can you have, today, uniform laws as far as a child and a young man are concerned?”

The question that Mr. Hussain asked then more than 67 years ago is still relevant today and need to answered before the current political dispensation embarks on a journey to cater to their ideology !!