Impact of not having majority in Rajya Sabha

By Deepak Parvatiyar

March 10, 2015

On 4 March, the Narendra Modi government faced its first embarrassment in the Rajya Sabha when the Opposition forced an amendment in the motion of thanks to the President’s address to the joint session of Parliament, criticising the government for its failure to curb ‘high-level of corruption’ and bring back black money stashed in foreign banks abroad.

This was only the third instance of the Opposition forcing such amendments to the President’s address. The earlier instances were as follows:

1. In 1980 on grounds that the President’s address had not taken notice of the attempts to engineer large scale defections in the Legislative Assemblies in the States that were ruled by non-Congress (Indira) governments, and attempts to even arbitrarily dissolve such Assemblies

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2. In 1989, on grounds that the President’s address did not mention about -

a) The contentious Ram Janmabhoomi-Babri Masjid issue
b) The steps to avert destabilising State governments
c) The Government’s move to amend the Constitution to ensure the ‘Right to Work’ as a Fundamental Right
d) The Indo-Sri Lanka Accord
e) The government’s stand on Anandpur Sahib Resolution;
f) The Government yielding to the demands of anti-national secessionist forces in Jammu and Kashmir by releasing the terrorists in December 1989

1. In 2001, on grounds that the President’s address had not contained the Government’s decision to sell out Bharat Aluminium Company Limited (BALCO) to a private sector company

It is a well known fact that the President’s address is actually prepared by the government of the day that charts out the work done and to be done by it. The motion of thanks is brought by the ruling party or coalition member and any forced amendment amounts to censure of the government.

Given the minority status of the Bharatiya Janata Party – led National Democratic Alliance in the Rajya Sabha, the government is prone to such censures by the Opposition. Yet, at the same time, it also provides the necessary check and balances necessary to uphold the democratic norms.

Minority status of the government in the Rajya Sabha causing hindrances

However, the minority status of the Government in the Rajya Sabha poses the real problems in case the government introduces any contentious legislation, and even seeks amendments to the laws enacted during the erstwhile United Progress Alliance regime. These laws have the mandatory requirement to be passed in both the Lok Sabha as well as the Rajya Sabha. (However, money bills, like the budget, can be passed by the Lok Sabha even if the Rajya Sabha rejects them). Besides, the government may also find it difficult to get a smooth passage for any Constitutional Amendment Bill as there is no provision for ajoint sitting of both the Houses in case of disagreement between the two Houses over the Constitutional Amendment Bill. In cases other than Constitutional Amendment Bills, the government could well overcome its minority status in Rajya Sabha by convening a joint session of Parliament under Article 118 of the Constitution. (However, the President is not bound to summon a joint session of Parliament).

Until now only three bills were passed at joint sessions: the Dowry Prohibition Act (1961), the Banking Service Commission Repeal Bill (1978) and the Prevention of Terrorist Activities Act (2002).

The tricky situation therefore merits an analysis of the respective strength of the Opposition and the BJP-led NDA Government in the 250-member Rajya Sabha (which at present has four vacancies).

The Congress-led United Progressive Alliance has 81 seats in the Rajya Sabha [Congress – 67, Rashtriya Janata Dal – 1, Kerala Congress (M) -1, Janata Dal (United) – 12]. Besides, the UPA could look forward to the support of the other Opposition parties such as the Samajwadi Party (15 MPs), the CPM (9 MPs), the CPI (2 MPs), and that makes the numbers reach 107 in the Rajya Sabha.

In comparison, the BJP just have 46 seats and the total strength of the NDA in the Upper House is only 55 [Telugu Desam Party – 6; Shiv Sena – 3; Shiromani Akali Dal – 3; Nagaland People’s Front – 1; and the Republican Party of India (Athavale) – 1].

Besides, it gets the support of the Biju Janata Dal (7 MPs) and the Indian National Lok Dal, which supports the NDA from outside, has one Rajya Sabha member. The Jammu and Kashmir People’s Democratic Front with which the BJP recently entered into (an uncomfortable) alliance to form the government in Jammu and Kashmir, could further fetch the government the support of 2 PDP MPs in the Upper House.

Much of the BJP’s hopes also hinge on the ten members of the All India Anna Dravida Munnetra Kazhagham and six members of the Nationalist Congress Party in the Rajya Sabha but even with their support, the number climbs up only to 81. (Consider how Prime Minister Narendra Modi preferred to attend a programme hosted by the NCP chief Sharad Pawar over the swearing-in ceremony of the Aam Aadmi Party government in Delhi).

Given the present scenario, the unpredictable Bahujan Samaj Party (10 MPs), the Dravida Munnetra Kazhagham (4 MPs) and the All India Trinamool Congress (11 MPs) do wield enough bargaining power in the Rajya Sabha and the recent attempts by the BJP to woo the Trinamool supremo and West Bengal Chief Minister Mamata Banerjee could be explained in this light. (As news last came in, PM Modi was likely to meet Banerjee over the interest waiver on repayment of the state’s government’s debts).

Yet, the BJP’s problems don’t end here considering the trouble brewing within the NDA vis a vis the Telugu Desam Party which has even threatened to pull out of the alliance over the alleged raw deal meted out to Andhra Pradesh in the Union Budget. (Earlier it had problems with the Shiv Sena too and both had snapped ties only to rejoin hands later).

The question that thus arises is can the BJP afford to upset its allies?

The victories in states have assured the BJP increasing its tally to 51 when biannual elections for over 70 Rajya Sabha seats take place in 2016. Its success in Goa, Rajasthan (before the general elections), Haryana, Maharashtra, Jharkhand and Jammu and Kashmir also means that the Congress is set to lose seats in the Upper House and its strength will dip to 54 (also because of its poor performance in state elections in Andhra Pradesh and Telangana). The BJP would also benefit by filling the seven of the 10 nominated RS seats that fall vacant by March 2016. Moreover, a good performance by the BJP in Bihar later this year could help it further to enhance its share of seats in the Rajya Sabha.
But this is not adequate yet. An analysis by The Indian Express recently showed that there was no likelihood of the NDA getting majority in the Upper House anytime and in the best case scenario, it would “just about cross the 100-seat mark in the House” till 2019 when the Modi government’s term ends.

Does this portend danger to the government’s reform agenda?

The answer is in affirmative and this answers the government taking the Ordinance route to carry out its reforms – a move not considered a healthy sign for parliamentary democracy.

The NDA government though finds it difficult to get passed key pieces of legislation because of its limited numbers in the Rajya Sabha. Consider that once the winter session of Parliament ended on December 23 last year, it promulgated two ordinances on December 26 — The Insurance Laws (Amendment) Ordinance, 2014, and The Coal Mines (Special Provisions) Second Ordinance, 2014. On December 29, it again approved one more ordinance to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Besides, the Modi government also passed ordinances to allow 100 per cent Foreign Direct Investment for medical devices; and to change the cut off date for buildings that can be regularized in Delhi.

Given the lack of strength in the Upper House, the Modi government does have some compulsions taking to the ordinance route. These bills are to be taken up in the Rajya Sabha in the ongoing Budget session. However, the problem remains given the minority status of the Government in the Upper House. The Government has thus dropped enough hint of considering the option of convening a joint session of the two Houses for the passage of the Insurance and Land Acquisition bills.

Another option is to follow its predecessors, the UPA, which had resorted to the Ordinance Raj by simply re-promulgating an ordinance every time it lapsed.(This is because an ordinance has to be placed before Parliament within three months of its promulgation and passed by the lawmakers if it is to remain law).

However, an Ordinance Raj can never be construed as a healthy trend in parliamentary democracy.

It goes without saying that with 336 seats in the Lok Sabha, the NDA would have enough muscle to get the bill enacted in a joint session as it would then require the support of just 64 Rajya Sabha MPs. However, given the BJP’s individual tally of 282 in the Lok Sabha, it cannot overlook the concerns of the allies to make it relevant in the Rajya Sabha.

Given the present numbers, an important question though arises is whether the government could have avoided the humiliation that was inflicted on it by Opposition over the President’s address? Considering the UPA’s strength of 107 in the 250-member Upper House, the BJP could have avoided the embarrassment by reaching out to the supposedly neutral parties as well as independents (7 MPs) through proper floor coordination and by offering party-specific deals. But for this, it does require the BJP shed the arrogance of power on one hand, and have the gumption to take along its alliance partners. (There are, after all, reports that even NDA constituents, the Shiv Sena and Shiromani Akali Dal, have a different opinion on the controversial Land Acquisition Bill).