India at 75: The legislatures have come up a little short on representation

What the legislatures have achieved over 75 years is good but is it good enough for the next 75 years?

This is the second in a six-part series on how institutions—Constitution, Legislature, Executive, Judiciary, RBI and Concluding article—have worked since independence. This series will appear on Mondays, Wednesdays and Fridays in the run-up to 75th Independence Day on August 15. Read part 1 here

Despite several ups and downs, India's legislatures have functioned well over the last 75 years in the sense that they have done what they were designed to do: represent groups of people and make laws. However, it’s important to ask if they truly represent the will of the people or merely of the party in power.

There’s no easy answer to this question anywhere in the democratic world. And in India, which is so large and diverse, it is especially difficult to answer this question. Also, the trouble with laws is that it’s only after they are applied that a country finds out if they are beneficial or not. India’s legislatures have often been remiss in this regard. Their members have been found wanting when it comes to debate and discussion.

An added complication not found in other democracies is the domination of political parties by single individuals. In that sense, our legislatures are further removed from the people's will. The laws they pass reflect the will of the individual leaders rather than their parties.

This was true till 1996, after which, until 2014, many Indian governments at the central and state levels were formed by coalitions of regional parties with one national party heading the alliance. This had a completely unanticipated effect on the Indian parliament, which is bicameral with two Houses, the Lok Sabha (people) and the Rajya Sabha (states). B R Ambedkar had said that the "states are represented in the Rajya Sabha and the people in the Lok Sabha".

But these roles have reversed because of regional or single state-level parties. When they won more than half the seats, in effect, the Lok Sabha became a council of the states. The ruling party then nominated its defeated members to the Rajya Sabha.

In 2003 the Supreme Court dismissed a writ petition filed by a former Rajya Sabha member, Kuldip Nayyar, and some others in which they had challenged an amendment to Section 3 of the Representation of People Act, 1951. The amendment did away with the requirement of domicile in a state as a pre-requisite for getting elected to the Rajya Sabha from there.

In the amended version, a person seeking election to the Rajya Sabha did not have to be a resident of the state from which he was elected. He only needed to be an Indian living in India.

The Court was reported to have said, "The impugned amendment cannot be assailed as unconstitutional ... It does not transgress the basic structure of the Constitution of India ... Residence is not a constitutional requirement, it is only a qualification."

The question arises: do we need the Rajya Sabha, given that the importance of the Upper House in most places has been declining? Only 66 out of 193 countries have a bicameral system.

Until 2019 representatives of regional parties accounted for around half the seats in the Lok Sabha. This proportion will vary around the 50 per cent mark in the upcoming elections. This means that in terms of interests they represent, even the so-called national parties are now essentially regional. Look at where the BJP’s main votes originate.

On balance, however, regardless of how the MPs are distributed, our Parliament and our state legislatures have delivered what they are expected to deliver, namely, representation and laws.

Arguably, the representation is still inadequate inasmuch as many groups go unrepresented. The most glaring example is women, who are grossly under-represented at just under 15 per cent. The global average is about 25 per cent.

It’s for parliament to discuss whether the question of increasing their representation should be left to the political parties who put up candidates in elections or whether it should legislate that half the MPs and MLAs will be women. This must form the core agenda for the future.

Finally, there’s the question of the number of MPs and MLAs India should have. At present, there are 544 in the Lok Sabha and 245 in the Rajya Sabha. After the new delimitation exercise of 2025, these could go up to about 800 and 300, respectively.

But will that be enough? The question is important because, for over 75 years, parliament has not kept pace with population growth. So the number of people a legislator represents is so huge that they can’t be effective. Indeed, the result would be the same if they were nominated instead of elected. This shortage of legislators is probably one of the biggest failures of our parliamentary system. On the representation front, it doesn’t measure up.

It’s in the backdrop of such issues that the functioning of our legislatures must be judged. What they have achieved so far is good. But is it good enough for the next 75 years?