Bicameralism: comparative insights and lessons

SIDHARTH CHAUHAN

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IN modern democracies, bicameralism is a feature adopted in pursuance of many of the objectives that were enumerated by James Madison among others in the course of the framing of the United States Constitution at the Philadelphia Convention of 1787. The core rationale for having two chambers in a national legislature broadly flows from the need for checks and balances in a republican government. At the same time, nations with large territories and heterogeneous constituents prefer bicameralism for ensuring the adequate representation of diverse interests at the federal level.

The justifications for bicameralism prominently appear in the The Federalist, a set of papers that were circulated before the ratification conventions in order to build support for the newly drafted Constitution at the time. Prominent among these justifications is the role of the Senate in serving as a check on the potential excesses and omissions of the directly elected House of Representatives. This translates into the Upper House acting as an auxiliary precaution against abuse by majority factions, while also serving as a forum for calm and informed deliberation in addition to its permanent character as a measure of stability.

This paper adopts a comparative viewpoint, wherein I attempt to juxtapose the justifications outlined above with the Indian parliamentary structure.1 More specifically, I seek to compare the institutional role of the United States Senate with that of the Rajya Sabha (Upper House of Parliament, translates as ‘Council of States’). Towards the end of the paper, I will draw attention to some arguments that have been made against the utility of second chambers, especially in parliamentary models where it is suggested that they are either obsolete or ineffective.2 

 

In the Indian setting, the Rajya Sabha (Upper House of Parliament) was designed to ensure that all constituent units have some voice in law-making at the Union level, yet the Constituent Assembly3 did not adopt the American model of equal representation for the states in spite of differences in the population of each unit. Apart from this obvious contrast, one can conceive of two structural obstacles while attempting to compare the rationale of bicameralism in the two nations. First, India has a multiparty parliamentary model, implying that the national executive is constituted by the political formation that commands a majority in the lower house of Parliament, in contrast to the two-party presidential system in the United States, where the national executive is constituted through an election process that is entirely separate from the election of the legislature. Therefore, there are bound to be some differences in the ways that the second chamber can operate as a check on the popular elected chamber or for that matter on the executive.

Second, the United States has a considerably stronger conception of states’ rights wherein there are several substantive restrictions on Congressional powers. Despite the general restraints on the power of the Federal government, the Senate exercises several powers that are akin to those exercised by the executive, a feature that immediately draws the attention of comparative scholars.4 In contrast, the demarcation between legislative powers in India explicitly favours the Union Parliament over the state legislatures and the Constitution even permits the Union Parliament to reorganize and divide existing states apart from admitting new ones. This places the directly elected lower house of the Indian Parliament, i.e. the Lok Sabha (House of the People) in a far stronger position in a comparative sense, since its composition cannot be altered in a manner akin to that of the Upper House which can change as a consequence of the reorganization or division of states.

 

Our discussion can proceed under two broad yet intersecting categories, namely (i) the place of a second chamber in the scheme of checks and balances in a republican government and (ii) the role of bicameralism in a federal structure.5 In comparative studies, the second chambers of national legislatures are routinely described as ‘territorial chambers’. In this sense their composition and powers are often taken to be indicators of federalism, in so far as they ensure that the interests of the constituent states are represented at the federal level. The intent, of course, is to balance the influence of states among themselves as well as their collective influence on the national government.6 In the United States, the foundational motive of creating a counterbalance to the power of the federal government is most evident if one looks at some of the powers conferred on the Senate that go beyond ordinary law-making functions and readily distinguish it from second chambers in other countries.

 

In the course of formulating the structure of the Rajya Sabha, the Constituent Assembly had the benefit of examining the constitutional history of several other nations. Under colonial rule, bicameralism had been introduced in the provincial legislatures in 1919, wherein the second chambers mostly consisted of nominated members. The Government of India Act, 1935 (which served as the prototype for the structure of government in the new Constitution) had created an Upper House in the Federal legislature which consisted of members elected by the provincial legislatures as well as representatives sent by the numerous princely states that were not under the direct control of the British government.

At the time of the framing of the Constitution, the objective of building a strong Union became doubly urgent owing to the widespread communal violence which had followed the partitioning of the subcontinent as well as the difficulties that were being faced by the transitional government in persuading the numerous princely states to join the Union. In such circumstances, the creation of a second chamber in the Union Parliament was deemed to be essential for accommodating the diverse interests of the constituent units as part of the new federal system.7 The Constituent Assembly was, of course, trying to shape a document to meet the needs of a population that was deeply divided on the basis of caste, religion and language, among other characteristics.8 

 

Coming to the specifics, Article 80 of the Constitution of India deals with the composition of the Rajya Sabha. The maximum strength of this chamber is 250 members, out of which up to 238 members are the elected representatives of the states and union territories [Art. 80(1)(b)], and 12 members are nominated by the President as representatives from non-political fields like literature, science, art and those involved in social services [Arts. 80(1)(a) and 80(3)]. The members representing the various states are elected by the respective state legislatures through an electoral method that involves the casting of a single transferable vote [Art. 80(4)], while the method of electing representatives from union territories has been left to prescription by Parliament [Art. 80(5)].

 

In a conscious departure from the American example of ‘equal representation for the states’, the apportionment of seats among the various states and union territories is done in accordance with a formula enumerated in the Fourth Schedule to the Constitution, which is read with Articles 4(1) and 80(2). The basic premise of the same is that one seat in the Rajya Sabha will be allocated for each million of a state’s population for the first five million and thereafter one seat will be assigned for every two million people. Hence, in this way a weighted advantage is given to the smaller states in terms of representation.9 

The overarching theory behind such an allocation of seats is to safeguard the interests of the smaller states while at the same time ensuring the adequate representation of the larger states, so that the will of the representatives of a minority of the electorate does not prevail over that of those who represented the majority. As opposed to the United States, where it is argued that the smaller states have a disproportionate voice in the Senate owing to the principle of equal representation, critics in India point to the immense disparity in the population sizes of the various states as a factor which operates to marginalize the interests of smaller states in spite of the constitutional prescription for weighted representation.

 

There are some other difficulties in adopting a model of ‘equal representation for the states’ in the Indian setting, especially in light of the reorganization and division of states in the post-independence period.10 Such reorganization and division of states has largely been done to ensure a certain degree of linguistic, cultural or ethnic homogeneity within the newly created states, and as a result the population of these states varies tremendously when compared with each other. Hence, apportioning seats in the Rajya Sabha, either on equal terms or conversely when done purely on the basis of population distribution, would have both been unworkable solutions.

This issue can be illustrated by the fact that between 1962 and 1987, six new states were carved out of the erstwhile state of Assam (in the northeastern part of the country). This was done partly with the intent of weakening the support for several separatist movements that had broken out among different ethnic groups in the region and partly with the intent of accommodating the demands for autonomy. If India had followed the equal representation model, these new states, containing barely 1% of the country’s population, would have been given 25% of all the votes in the upper chamber.11 

 

With respect to the need for stability, the Constituent Assembly did follow the American example and as per Article 83(1), the Rajya Sabha is a permanent body with its members being elected for six year terms and a third of its the members retiring every two years. The Rajya Sabha cannot be dissolved and the qualifications for its membership are that members should be citizens of India and be above 30 years of age (Art. 84). As per Article 89, the Vice President of India is the Ex-officio Chairman of the Rajya Sabha and the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries.

An apparent similarity between the functions of the second chambers in the two countries is that legislative bills dealing with finance and taxation (known as money bills in India) can only originate in the directly elected chamber, i.e. the House of Representatives in the United States and the Lok Sabha in India, respectively. However, on closer scrutiny one finds a subtle distinction in so far as the Senate in the United States is free to amend the content of such financial legislation, whereas in India the Rajya Sabha can suggest changes to money bills but the same are not binding on the Lok Sabha.12 In parliamentary models such as that of India, one rationale that is offered for according primacy to the directly elected chamber in finance-related matters is that the national executive (which necessarily controls the directly elected chamber) should have a predominant role in the fiscal administration of the states. Furthermore, the directly elected chamber is seen as the proper representative of the tax paying public.

 

As noted earlier, the permanent nature of the Rajya Sabha is similar to that of the United States Senate. Even though James Madison had not conceived of the emergence of political parties at the time of writing Federalist 62 and 63, this ‘permanent’ character creates the possibility of incumbent political formations being kept in check by the second chamber, especially when they do not command the requisite legislative majority in the latter. For instance, in the two party presidential system in the United States, there is a possibility of disagreement between the two Houses of Congress as well as that of a disagreement between either or both Houses of Congress on one side and the executive on the other side. This is foreseeable when one party commands a majority in either one or both Houses of Congress, and the presidential executive is from the opposite party.

In comparison, under a parliamentary form of government, the executive is responsible to the directly elected chamber and must command the support of a majority of its members. Hence, in the course of the legislative process, there is a possibility of disagreement between the two Houses of Parliament which can also be viewed as a disagreement between the executive on one side and the second chamber on the other side.

 

Irrespective of such complexities, it would be useful to outline how disagreements between the legislative chambers are intended to be resolved in the two constitutions under consideration. In the Indian Constitution, a ‘deadlock’ between the two Houses is sought to be resolved in the proceedings of Joint Parliamentary Committees (JPCs) that consist of members selected from both Houses. In the event that no agreement can be reached through this route, there is a provision for a joint sitting of both Houses of Parliament (Art. 108), though the same tilts the balance in favour of the Lok Sabha owing to the larger size of the latter House.13 The counterpart mechanism in the United States Congress is that of resort to ‘Conference Committees’ where members from both the Senate and the House of Representatives attempt to resolve differences over prospective legislation.

In the early decades of the Indian Republic, many commentators had questioned the need for a second chamber in the legislature since the Indian National Congress dominated national as well as state level elections, implying that it had a comfortable majority in both chambers. In this light, the Rajya Sabha was often criticized as a redundant colonial relic. However, with the decline in dominance of the Indian National Congress and the concurrent rise of several identity based and regional political parties which have increasingly become powerful in the states,14 the permanent character of the Rajya Sabha has taken on a renewed significance, especially in circumstances when the incumbent political coalition that controls the Lok Sabha may not necessarily command a majority in the Rajya Sabha.

 

The importance of according an effective voice to the states in the national government is further highlighted by evidence that voters tend to support different political formations when it comes to national and state-level elections.15 Furthermore, the election of Rajya Sabha members by the state legislatures implies that the state level executives have a substantial influence on the choice of candidates and their prospects of getting elected through the prescribed indirect methods. In contrast, in the United States, since the Seventeenth Amendment was ratified in 1913, senatorial candidates face the electorate directly and the state level executive has little say in the choice of candidates or even their prospects of getting elected.

The Indian Union has been described as the ‘holding together’ of different areas by the constitution framers, unlike the ‘coming together’ of constituent units as in the case of the United States.16 Hence, the Rajya Sabha was vested with a power to pre-empt or override state legislatures under certain conditions (Article 249). This is one of the features that contributes to the description of the Indian Union as one bearing a ‘quasi-federal’ character. Under Article 249(1), if the Rajya Sabha declares by a resolution supported by not less than two-thirds of its members present and voting that it is necessary or expedient in national interest that the Union Parliament should make laws with respect to any of the matters that otherwise fall within the exclusive legislative competence of state legislatures while specifying the matters in the said resolution, it shall be lawful for the Union Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.

 

Clauses (2) and (3) of Article 249 specify the limitations to the enforcement of this provision. Article 251 when read with Article 249 provides that in case of inconsistency between a law made by the Union Parliament under Article 249 and a law made by a state legislature, the Union law will prevail to the extent of such inconsistency or ‘repugnancy’. In other words, this provision permits a two-thirds majority in the Rajya Sabha to encroach upon the specified legislative competence of state legislatures simply by declaring the subject matter to be that of national importance.17 While the inclusion of this extraordinary power was motivated by concerns analogous to those of Madison that the national legislature should be authorized to exercise a veto over state legislation, in practice Article 249 has been used by incumbent political formations at the Union level to thwart the legislative initiatives of their political opponents at the state level. Needless to say, this predisposition towards ‘unitary power’ is not seen in the US Constitution whose framers clearly argued in favour of a dual notion of sovereignty and gave effect to the idea by providing that the substantive scope of Congressional powers would be confined to those enumerated in the Constitution and the measures that would be ‘necessary and proper’ for the exercise of the same.

 

Another point of difference is that of the requirement of residency in a particular state as a condition for contesting elections to become a member of the same. Prospective candidates seeking election to the Rajya Sabha from a particular state are not required to demonstrate domicile status in that state.18 Conversely, the senatorial aspirants must be residents of the states from where they seek election. This is another indicator of the stronger conception of states’ rights and the ready invocation of states’ interests in American politics.

As suggested earlier, the Senate in the United States has often been described as the ‘strongest second chamber’ in a comparative context. With respect to its role in a federal government, it has been given certain distinctive powers some of which have no counterpart provisions in India. For instance, any treaty or international agreement entered into by the United States is subject to the approval of at least a two-thirds majority of the Senators present and voting. The Senate may also amend a treaty or adopt changes to a treaty. This requirement limits the presidential executive’s powers in foreign relations.19 

 

Similarly presidential appointments of ambassadors, federal judges, cabinet members and certain other officials are subject to the approval of the Senate. The Senate votes on thousands of appointments yearly and usually gives due emphasis only to the most important ones. Under a custom called ‘Senatorial courtesy’, the President confers with the Senator of his/her party from a particular state before appointing anyone to an office in that state. In case the concerned Senator disapproves of the appointment, the Senate almost always rejects the same.20 In presidential elections, the Senate elects the Vice President to break the deadlock if the electoral college fails to give any candidate a majority. The Senate as well as the House of Representatives can conduct investigations into malfeasance in the executive branch and elsewhere in American society. Congressional investigations are of course viewed as critical ingredients for restraining government functions and educating the public.

 

Since the preceding sections have largely been descriptive, it would be apt to finish with some remarks about the arguments that have been made against the continuance of bicameralism, especially in countries with parliamentary forms of government. The direct election of Senators in the United States has, of course, transformed that body from what was conceived by Madison as an institution which would act as an internal restraint on the ‘intemperate and pernicious’ acts of the popularly elected representatives. Commentators describe the contemporary Senate as a part of a triangle of institutions (along with the House of Representatives and the Presidency) that represent distinctly elected popular majorities while at the same time acting as ‘checks and balances’ on each other. In this sense, the Seventeenth Amendment has greatly weakened the force of criticisms that earlier pointed to the Senate as a body that only represented the interests of the elite. If one considers this alongside the extensive powers conferred on the Senate, it would be unthinkable to make a case for the abolition of the Senate altogether. There are many who argue for a departure from the principle of ‘equal representation for the states’ but very few who would suggest the discontinuance of bicameralism. However, the same does not hold for parliamentary systems such as those of India, among others.

In India, a hypothetical argument for abolishing the Rajya Sabha could be developed in several directions. In the first place it could be argued that there is no place for a legislative chamber constituted through indirect elections in a modern democracy.21 In a scenario where the Lok Sabha embodies the will of the people and holds the executive accountable, the Rajya Sabha may be viewed is an obsolete relic which is simply being continued as a ‘halfway house’ for self-interested politicians. In support of this claim, it is asserted that many politicians who lack the ability or motivation to contest direct elections (including those who are considered to be past their prime in public life) are accommodated as Rajya Sabha members. For instance, a prominent target of such rhetoric is the present Prime Minister who has been elected to the Rajya Sabha several times but has never been elected to the Lok Sabha despite having served as a union minister in the past.22 However, the prominent target of this argument should not deflect attention from the core justifications for bicameralism, namely that of providing a forum for second thought and ensuring that the diverse interests of the constituent units have a voice at the federal level.

 

Another argument that has been made against the continuance of the Rajya Sabha points to the increasingly fractured nature of Indian politics that can be identified with the emergence of several identity based and regional political parties over the last few decades. In this vein it is argued that since the incumbent political coalition that gets to form the Union cabinet will usually consist of a motley group of national as well as regional parties (often with mutually conflicting postures and agendas), the same serves as enough of a restraint on potentially harmful majoritarian tendencies and hence there is no need for an additional check in the form of a second legislative chamber. The reasoning is that an inherently unstable political coalition slows down decision making and weakens the credibility of the executive in the eyes of the electorate. In this view, by retaining another barrier in the legislative process (since the incumbent coalition may not have the requisite majority in the second chamber), bicameralism only compounds the problems of a weak government.

 

It will be apparent to the reader that this is a deeply flawed argument. Even in the case of a consolidated incumbent government, there are bound to be internal tensions and contradictions within the ruling party. For instance, one can point to the two-party system in the United States where a whole range of views and positions is often represented within the umbrella of one party. Arguing that the existence of these internal differences makes bicameralism redundant is clearly unconvincing. At the same time, a forum which represents the interests of the diverse constituent units is vital in a parliamentary model wherein the majority at the national level may otherwise overlook local interests. As suggested earlier in this paper, the importance of the Rajya Sabha has been renewed and not diminished on account of the rise of several regional parties.

 

A last objection that merits some consideration in both countries is that the need for stability in a government is being met by a vast and sprawling administrative apparatus that ensures a certain modicum of continuity despite the changes that follow elections. However, this was not so in the late 18th century when Madison sketched his conception of the Senate as a permanent institution which would lend the stability necessary for a government to ensure certainty in the content of laws to build a national character for generating awareness of international opinion and to pursue measures aimed at public welfare in the long run. It is pointed out that the massive improvements in transport, communications and commerce since then have made it much easier to forge a sense of national identity even without the guiding hand of a governmental institution. Moreover, the peaceful regime-changes through elections can hardly be described as causes of instability.

All these factors considered together with the existence of a well functioning administrative state lead to the suggestion that the second legislative chamber has outlived its utility as a contributor to stability. While this is a well constructed objection, one cannot discount Madison’s words in Federalist 63 that ‘such an institution may sometimes be necessary, as a defence to the people against their own temporary errors and delusions.’23

 

* I would like to thank Professor V.S. Mallar (previously at NLSIU, Bangalore) and Professor William Ewald (University of Pennsylvania) for their guidance on the subject matter.

Footnotes:

1. There are of course numerous works which compare the embodiment of bicameralism in modern constitutional democracies with federal systems. Some useful titles are: D.D. Basu, Comparative Federalism (2nd edn.). LexisNexis India, New Delhi, 2007; Thomas A. Hueglin and Alan Fenna, Comparative Federalism: A Systematic Inquiry. University of Toronto Press, 2006; Wilfried Swenden, Federalism and Second Chambers: Regional Representation in Parliamentary Federations: The Australian Senate and German Bundesrat Compared. Peter Lang S.A., Brussels, 2004; Ronald L. Watts, Comparing Federal Systems (2nd edn.). McGill-Queens’ University Press, Montreal, 1999; Sharman Campbell, Herman Bakins and Wim M. Chandler (eds.), Second Chambers: Federalism and the Role of the State. University of Toronto Press, 1987.

2. In a recent paper, Jeremy Waldron reflects on the theoretical justifications for bicameralism in a historical as well as contemporaneous context. The trigger for this contribution was the proposal for removing the peerage system in the House of Lords or for the sake of argument, even the possibility of abolishing the second chamber in the British Parliament. See Jeremy Waldron, ‘Bicameralism and the Separation of Powers’, Current Legal Problems 65, 2012, pp. 31-57.

3. The leading work that examines the proceedings of the Constituent Assembly that were held between December 1946 and November 1949 is Granville Austin, The Indian Constitution: The Cornerstone of a Nation. Clarendon, 1966. For a comprehensive documentary history, see B. Shiva Rao (ed.), The Framing of India’s Constitution – Select Documents. Indian Institute of Public Administration, New Delhi, 1968.

4. The fact that the President and the Senate jointly exercise some powers such as those of treaty making as well as the appointment of ambassadors, federal judges and other public officials, is quite distinctive and such a pronounced role for the legislative branch is uncommon when a comparison is made with other constitutional democracies.

5. In other words, the role played by the Senate in balancing the interests of the state governments among themselves as well as for the protection of the states’ interests against the national government. In Madison’s own words in The Federalist: ‘…the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty… Another advantage accruing from this ingredient in the constitution of the senate is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence first of a majority of the people, and then of a majority of the states.’ (Cf. The Federalist 62, p. 377)

6. See Dennis J. Mahoney, ‘Bicameralism’ in Leonard W. Levy, Kenneth L. Karst and Dennis J. Mahoney(eds.), Encyclopaedia of the American Constitution (Vol. 1). Macmillan Publishing Co., New York, 1986, pp. 109-111. It may be recounted that the Senate is a permanent body with its members elected for six year terms and a third of them retire or seek re-election after intervals of two years. The candidates seeking election to the Senate have to be more than 30 years old and should have been citizens of the USA for more than nine years and also should have legal residence in the state they are seeking election from. Senators can run for re-election an unlimited number of times. The Vice President of the USA serves as the presiding officer of the Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical purposes the presiding function is performed by a President Pro Tempore (temporary presiding officer), who is usually the senator from the majority party with the longest continuous service.

7. See, R.C. Tripathi, Emergence of Second Chamber in India. Vedams Books, New Delhi, 2002. Also see, S.S. Nanda, Bicameralism in India. New Era Books, New Delhi, 1988.

8. See, Granville Austin, op cit., 1966, pp. 1-32, where the author has argued that the three central objectives of the Constituent Assembly were those of ensuring political unity, creating the preconditions for meaningful democratic participation and laying out a roadmap for social transformation.

9. However, despite the rapid rise in population in recent decades, the apportionment of seats among the existing states has been largely left unaltered since doing so would tend to punish the states (especially those in the southern part of India) that have been relatively successful in implementing population control measures.

10. Articles 2, 3 and 4 of the Constitution of India enable Parliament to affect the admission or establishment of new states as well as the formation of new states and alteration of areas, boundaries or names of existing states. Hence, India is described as ‘an indestructible union of destructible states’ as compared to the United States of America which is ‘an indestructible union of indestructible states.’

11. This example has been discussed in: Alfred Stepan, ‘Federalism and Democracy: Beyond the U.S. Model’, Journal of Democracy 10(4), 1999, p. 19.

12. This difference is apparent if one compares Article 109 of the Constitution of India with Article 1, Section 7, Clause 1 of the United States Constitution. Under the former provision, the Lok Sabha (House of the People) can forward money bills to the Rajya Sabha (Council of States) seeking endorsement or recommendations. However, the Lok Sabha is not bound by the recommendations of the Rajya Sabha and in case the concerned money bill is not returned to the Lok Sabha within 14 days, it is deemed to have been passed by both Houses of Parliament.

13. The maximum strength of the Lok Sabha (House of the People) is fixed at 550 members in comparison to the Rajya Sabha (Council of States) which has 250 members. Joint sittings to resolve disagreements over prospective legislation are rare and they are usually held for ceremonial purposes such as the Presidential address at the beginning of each new session of Parliament or for the purposes of addresses by visiting dignitaries.

14. See, Ramachandra Guha, India After Gandhi – The History of the World’s Largest Democracy. Picador, New Delhi, 2007.

15. In this regard, one hypothesis is that in elections for state legislatures, voters are more likely to support regional parties that are attentive to localized concerns whereas in elections for the Lok Sabha the same sample of voters may choose to vote for a political formation that has a national presence and is perceived to be capable of making decisive changes at the Union level.

16. See Alfred Stepan, supra note 11.

17. This power is different from the pre-emption of state legislatures during times of emergency. Under Article 250, the Union Parliament can assume law-making power with respect to any matter in the state list if a proclamation of emergency is in operation.

18. In a decision reported as Kuldip Nayar v. Union of India & Ors., (2006) 7 SCC 1, the Supreme Court of India refused to accept the argument that candidates seeking election to the Rajya Sabha must demonstrate their domicile status in the state from which they choose to contest in the indirect elections. The case attracted considerable visibility in the press since one of the parties targeted by the petitioner was Prime Minister Manmohan Singh who had been elected from the state of Assam.

19. However, successive US Presidents have followed the practice of entering into executive agreements with foreign nations that are not subject to Senate approval.

20. With regard to the power of impeachment for charges of misconduct in office, the House of Representatives has the power to impeach a government official by serving as the prosecuting body. The Senate has the sole power to conduct impeachment trials, essentially serving as jury and judge. A vote with at least two-thirds majority of the Senate is required for conviction in an impeachment trial. There are, of course, counterpart provisions in the Indian Constitution, wherein the holders of high offices such as the President of India, Vice President, Justices (of the Supreme Court and the High Courts) and Election Commissioners can only be removed if both Houses of Parliament vote to impeach by a two-thirds majority.

21. A corollary of this argument is directed against the provision for nominating 12 members from non-political fields. Much like the criticisms directed against the lifetime peers of the House of Lords in the United Kingdom, it is argued that this provision is nothing but an entrenchment of elite interests as identified in an earlier era while also enabling the incumbent government to reward its prominent supporters outside the political field. A counter-argument made in defence of the nomination provisions is that they help in gathering the views and inputs of professional groups which might otherwise be too diffuse or incapable of contributing to the legislative process.

22. This is because the Indian Constitution permits the ministers of the Union cabinet to be drawn from either House of Parliament. Incumbent ministers have the right to attend and speak in proceedings in both Houses, but they can vote only in the House to which they were elected. Furthermore, one cannot discount the circumstances of candidates from the incumbent political formation who might have lost closely fought elections to the Lok Sabha but exhibited the talents necessary for holding ministerial office. In such a scenario, including them in the cabinet by way of the Rajya Sabha route has become a widely accepted practice. The same holds true when individuals other than career politicians who have demonstrated excellence in their respective fields are sought to be absorbed in the cabinet of ministers.

23. The Federalist (63), p. 384.

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