Not conducting delimitation for almost half a century has resulted in significant malapportionment, with the votes of certain citizens counting more than others. As the second post in this series noted (here), the Constitution always contemplated States gaining and losing seats in the Lok Sabha based on the population of States. This ensured that constituency sizes across the country, and consequently the value of each citizen’s vote in national elections was equal. Restoring this equilibrium is thus a Constitutional imperative to ensure the continued legitimacy of Indian democracy.
However, if delimitation of Lok Sabha constituencies were carried out today, it would substantially re-distribute political power amongst states and political parties. It would likely be politically fractious because the winners and losers of delimitation would fall along existing regional, linguistic, economic, and political cleavages. Richer, older, mostly southern, non-Hindi, non-NDA states (see Tamil Nadu, Telangana, Kerala, West Bengal, and Karnataka) would lose seats in the Lok Sabha, and likely view the exercise as a partisan power grab.
Moving past the political rhetoric utilised by parties to get voters to care about this issue, the States that stand to lose seats in a delimitation exercise raise genuine issues regarding the design and operation of India’s federalism. The Constitution assigns important functions and responsibilities to State Governments, which are closer to citizens than the Union ever will be. But today, the design of the Union Parliament and centralisation of governance does not take seriously the concerns of States as federal units. The Union Government exerts significant fiscal and policy influence over State subjects like education, health, and employment. Implicit in promises such as ‘double-engine sarkar’ is the notion that the Union Government’s support for States is both partisan and tied to a State’s electoral relevance for national political parties. As noted in the previous post (here), The body intended to protect the interests of the States at the national level, the Rajya Sabha, has failed in both its design and operation to do so.
The result is that the States are constitutionally mandated and electorally accountable to provide governance on a range of local issues, but smaller States with limited Lok Sabha and cabinet representation are given decreasing control over their policies and finances. This is why States are deeply concerned with losing seats in the Lok Sabha and it is a legitimate issue that militates against simply carrying out delimitation without a package of federal reforms. These reforms will need to do some combination of: (1) decentralise powers and funding to the States making a loss of Parliamentary seats more palatable, and/or (2) give the States meaningful authorship over aspects of national policies and devolutions that impact their governance priorities.
Starting with the Lok Sabha
One proposed solution is to increase the size of the Lok Sabha so that no State loses seats, but that the more populous States gain additional seats to account for their increased population. Milan Vaishnav and Jamie Hinston have modelled what this may look like. While in absolute terms, no State will lose seats through this proposal, the relative power of States with declining populations will be reduced in the same way as losing Seats. Another proposed solution is to only count voters, not people in the States for delimitation. However, this idea does nothing for small States whose interests are already not being taken seriously and will ultimately lead to similar imbalances when the now under-18 population in northern states eventually become voters. It also creates incentives for States to register more voters and electoral rolls are less credible and stable than census figures. Thus, these ideas fail to provide constitutionally durable solutions to the States’ concerns.
However, the proposals do raise an important ancillary point. Ensuring no State lost seats would increase the size of the Lok Sabha from 545 to 848 and thus also lower constituency sizes. (Interestingly, the Lok Sabha chamber in the newly constructed Parliament has 888 seats.) The optimum size of a legislature is a hard question to solve because what constitutes a well-functioning legislature is itself disputed and results vary based on a host of social, economic, and institutional factors. As James Madison noted in Federalist 55, “No political problem is less susceptible of a precise solution than which relates to the number most convenient for a representative legislature.”
There is a trade-off between democratic representation and democratic effectiveness. Smaller constituencies can make running for office more accessible and make elected officials more responsive, which may in turn boost voter turnout. Under the right circumstances, a larger legislature may be more heterogeneous and include more women and minorities. A more inclusive decision-making process should also in theory reduce factual mistakes and external costs on individuals. A larger legislature may also gently subvert the anti-defection law as party elites struggle to control larger flocks of legislators. It can also improve the Committee system by increasing the human resources available for the important task of Parliamentary accountability. However, a larger legislature also means increased cumulative spending on elections, more public spending on legislators, decreased legislative efficiency, and the risk of more pork-barrel policies.
The Constitution originally capped constituency sizes at 750,000. If we were to return to this model, the Lok Sabha today would consist of around 1,900 Members. Such a large number does raise concerns over legislative effectiveness. However, it must be acknowledged that a key cause for such concern is the centralised nature of Indian federalism. We are worried that a large Union Parliament would be ineffective because we are used to the Union Parliament doing so much. In a world where State Legislatures (which would still be smaller and more efficient) did most of the legislating, a larger, more legitimate, more representative Lok Sabha which focussed on truly national priorities (instead of the delivery of services) may not be all bad. This is another reason why Lok Sabha reform is ultimately tied to federal concerns.
Reforming the Rajya Sabha
The problem at the heart of delimitation is the centralisation of governance and the inability of States to advance their interests in Parliament (and consequently vis-à-vis the Union Government). Re-designing the Rajya Sabha (RS) to better allow States to secure their interests would be one way to give States more say over decisions that impact their governance priorities. RS reform can be examined from three different, but inter-related considerations: geographic distribution, the electoral system, and the powers and functions of the upper house.
As noted in the previous post, seats in the RS are currently largely allocated based on population. This means that the RS fails to distribute power any differently from the Lok Sabha. It fails to achieve a geographic distribution of power. Splitting up the States’ seats into zones, the geographic distribution of RS seats is currently as follows: North 30.9%, West 17.6%, Central 13.73%, East 12.88%, and South 24.89% (complete calculations here). This distribution, similar to that of the Lok Sabha, disproportionately favours the interests of northern and southern States and is part of the reason they have come to dominate national politics (income distribution being another key reason). Distributing power based on population also allows the Union Government to ignore or discriminate against smaller States with little political cost (the limited attention paid to central and eastern states, with Manipur being a recent egregious case, is an example of this structure).
One way to give smaller States more say in the RS would be to give all States equal representation in the RS (like the U.S. or Australian Senate). This would significantly improve the bargaining power of States. However, the risk is that a very small block of sparsely populated states could impede important legislation leading to minority rule. For example, if each State was given 5 seats in the RS, the 16 smallest states with a population of around 116 million (or 12% of the population) could bring Parliament to a halt. This risk is heightened by the fact that for historical reasons, States in India are geographically unevenly distributed. For example, the East has several small States which could form a disproportionately powerful voting block under a system of inter-state parity. (The geographic distribution under such a system would be: North 25.81%, West 12.90%, Central 12.90%, East 29.03%, and South 19.35%). Thus, there is a case to be made that inter-state parity is better suited to situations where there are few states (the Australian example) or where small and large states are geographically and politically dispersed (e.g., America’s two largest states of California and Texas are geographically and politically poles apart).
Another potential avenue would be degressive proportionality as applied by Germany and the European Union. This would allocate a minimum number of seats to all States and then give additional seats to States based on population with fewer additional seats for every increment in population. The Rajya Sabha already follows such an approach (1 MP per million till 5 million and an additional MP for every additional 2 million) but the current formula results in little deviation from allocation by population. An example of a more equalising formula would be to allocate every State 5 RS MPs and then subsequently allocate an additional MP based on population bands (e.g., +1 for States between 10m-30m, +2 for States between 30m-50m, +3 for States between 50m-75m, +4 for States between 75m-100m, and +5 States over 100m). This example would result in a geographic distribution of: North 26.17%, West 14.95%, Central 13.55%, East 23.83%, and South 24.89% – a halfway house between population-based and State-based distribution of seats.
However, this is only one example of a degressive proportionality formula and one which only uses population (hence balancing population and State distribution). States could choose to balance other factors such as median age in States, language, or the State’s own revenue in distributing seats. Further, strict adherence to a formula is not necessary. Indeed, the current formula for seat allocation is not codified in the Constitution, with the Fourth Schedule simply listing each States’ seats in the RS. Thus, the States could simply negotiate a degressively proportional allocation that balanced the considerations they deemed important and list the allocation in the Constitution. It should, however, (1) distribute power differently from the Lok Sabha across factors including geography; (2) avoid the risk of minority rule; (3) protect the interests of smaller States more than the current system; and (4) its adoption should be conditional on acceptance by a high super-majority of State Legislatures.
Changing how Rajya Sabha Members are Chosen
In addition to changing the State’s seat allocation in the RS, reforms could include changes to RS elections. It may be time to consider abolishing the 12 nominated seats in the RS. The anti-defection law means no matter how enlightened a nominated Member’s contributions, their impact on law-making is negligible. Further, long-standing concerns that nominations would become a tool for political patronage and a government voting block have come to fruition. Finally, the existence of nominated Members reduces the chamber’s democratic credentials and makes it harder to justify increasing the lawmaking powers of the RS, which is essential to give States a greater say.
Another potential change could be directly electing RS members. This would further enhance the democratic legitimacy of the Rajya Sabha and remove any justification for not giving the Rajya Sabha power over financial legislation. It would also curb the use of the Rajya Sabha as a tool for political patronage. Finally, it would create a real link (which does not exist now) between RS Members and the States they represent. While political parties may nominate out-of-State candidates for RS seats, voters are less likely to choose out-of-State candidates if direct elections are in place. This would represent a de-facto residency requirement, as opposed to the artificial legal domicile requirement that RS MPs regularly circumvented by renting property in the State, and which was finally removed in 2003. Another potential solution would be to require that after a candidate contested an RS seat from one State, they were barred from contesting from any other State in the future, ensuring their fortunes were tied to the State they sought to represent.
The downside of direct elections to the RS is that it will likely return a different calibre of MP than the indirect process. Some of the nation’s most esteemed parliamentarians have only been elected due to the indirect elections by State legislatures. Further, the current system of indirect election follows proportional representation of State Legislatures in the RS, which ensures that the composition of the RS more accurately represents the composition of Legislatures across the country. Thus, any proposal for direct elections to the RS must be based on a system of proportional representation. This would be an excellent first step to introduce the powerful idea of proportional representation for direct elections in India which was abandoned at independence due to fears that ordinary citizens would not understand it. There is compelling precedent for a directly elected proportionality represented upper house in the form of the Australian Senate, which has resisted party capture and ensured the rise of smaller parties for several decades.
Powers of the Rajya Sabha
Giving States greater voting power in the RS is of limited significance if the upper house does not have power over Money Bills (the classification of non-financial legislation as Money Bills only exacerbates the problem). As noted in the previous post, the framers’ reference to the House of Lords’ lack of power over financial legislation is deeply misguided. There are cogent reasons to deny an unelected body with deep ties to the aristocracy and British Conservative Party power over the budget. But the Rajya Sabha was meant to represent the States, which are deeply impacted by the contents of Money Bills given India’s system of fiscal centralisation and inter-governmental transfers. This rationale is reflected by international experience, with second, federal chambers in the U.S., Australia, Brazil, and Germany all possessing meaningful power over budgetary legislation. Even without reforming the RS, there is a compelling case to give the RS power over Money Bills to empower the States.
A common concern with such proposals is that budgets could result in regular gridlock. One potential solution would be to split budgetary powers to allow the Lok Sabha exclusive power over core Union Government priorities (e.g., national defence, foreign affairs, and central agencies) and give the RS powers over all items that result in devolutions to the States or non-strategic spending in specific States. Both the German and Indonesian Constitutions follow a version of this approach that can provide guidance.
Two final important but tangential points are the Speakership and Article 3. As noted in the previous post, there is no structural reason for the Vice President (appointed by the Executive) should be the Speaker/Chairperson of the RS. Both an elected Speaker and a rotating Speaker amongst States should be investigated. Finally, RS reforms must also consider Article 3 of the Constitution which allows Parliament to unilaterally create new States. There is a real risk that giving States more power in the RS could increase existing pressures for the creation of new States. Taking away this power from Parliament and giving it to a high super-majority of State Legislatures would: (1) reduce the pressure on a national political party to create new States; (2) restrict Parliament from abusing its powers to create new States; and (3) allow for the creation of new States where there was a national consensus that it was warranted. Giving all existing States power over the creation of new States also makes sense where seat allocation is more equal amongst States because the voting power of existing States in the RS will be diluted by the creation of new States.
Rajya Sabha Reform and Fiscal Federalism
This blog series has consistently underscored that States fear reduced Parliamentary representation because they believe it may lead to reduced fiscal devolutions. How does RS reform solve this problem? Giving the RS power over budgetary legislation gives States significant control over devolutions. However increasing the voting power of smaller States in the RS also gives these States increased bargaining power in all negotiations with the Union Government, which can no longer afford to ignore smaller States.
States’ power over finances is at the heart of not just federalism, but representative government. The power to elect a State Government is meaningless if the State Government has no control over spending. This is particularly true in India where States collect around 37.5% of revenue but incur over 60% of public expenditure. This is an inherent feature of large federations where Central Governments are well placed to collect certain taxes (e.g., income tax and customs duties) while local governments are best placed to provide public services such as education, policing, and local infrastructure. Therefore, inter-governmental transfers are an inevitable feature of such systems, where the Central Government collects certain taxes and distributes them to the States. However, this disconnect between the Government tasked with revenue raising and the Government tasked with spending leads to a host of issues including (1) the desire of the Union to dictate fiscal priorities and prudence; (2) the potential for partisan and regional discrimination; and (3) weaker incentives for the Union to raise revenue and the States to maintain fiscal discipline. An ideal system would grant States as much taxing power as possible till these issues were worth tolerating but this balance is beyond the scope of this post. There are however a few constitutional design questions worth examining.
Funding to States by the Union occurs through two broad channels, the Finance Commission and Union Ministries. Finance Commissions have historically acquitted themselves well vis-à-vis fiscal autonomy to the States. However, a glaring omission for some time has been the fact that States have no say in the appointment to the Commission. Article 280(2) empowers Parliament to pass laws regulating the selection of the Commission, and updating the Finance Commission (Miscellaneous Provisions) Act 1951 to give the States a say in Commission appointments would be an important safeguard to ensure the continuing neutrality and legitimacy of the Commission.
The second channel of transfers to the States is of greater concern. Transfers to specific States by Union Ministries have been used by ruling parties to entice voters in those States, nationalising State politics and making the Union a partisan actor in State financing. Expanding conditional Union transfers on core State subjects such as health and education also reduces the fiscal independence of States to spend money how they see fit based on the electoral coalitions that elected them. An evaluation of the Union’s 34 Centrally Sponsored Schemes found 10 cover areas that are exclusively within the State List of the Seventh Schedule. These transfers are also subject to backroom partisan bargain which obfuscates the chain of accountability for voters and significantly disadvantages smaller States with limited electoral relevance to national politics. Because these transfers are not based on a formula, they also interfere with the ability of the Finance Commission to neutrally devolve funds. Finally, Union transfers to States have been shown to exacerbate the gap between rich and poor States, with the greatest benefit to States coming from untied general use funds.
These funds are typically transferred under Article 282, which was arguably intended to be a residuary and exceptional provision of fund transfers to the States. Giving the Rajya Sabha power over Money Bills can give States important ex-ante control over these funds as they could insist on greater transparency and consistency on devolutions in exchange for voting on budgets. Another bigger reform would be to create a GST Council-like body where all States are represented to oversee more regular transfers and integrate this with the operation of the Finance Commission.
Conclusion
The debate surrounding delimitation is often reduced to either mathematical hypotheticals or regional factionalism. Both these approaches fail to recognise the deep structural tensions raised by the delimitation problem which trace themselves to the design, history, and working of the Constitution. The last three posts have been an effort to unearth these tensions to demonstrate that there are no quick fixes.
This post has focussed on solutions. Many of the ideas discussed are big and if seriously considered could require years of work before they can be operationalised. But I would argue that this is the scale we should be thinking at. The tensions raised by delimitation go to the very roots of our constitutional design and the current moment represents an opportunity to re-imagine the relationship between the Union and the States without the spectre of balkanisation that dominated the framing (as the design of the Rajya Sabha exemplifies). We should also not be sucked into an artificial time constraint. Delimitation has been delayed by decades, and we would be better off pushing it a few more years providing we are taking meaningful steps to craft real and durable solutions. Thus, the goal should not be to ‘solve the delimitation problem’ and just get delimitation done but rather leverage this moment to craft a more perfect Union of States.