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Photo: Vipin Kumar/HT
Photo: Vipin Kumar/HT

A political gridlock in India

The ordinance route or a joint session of Parliament is a legitimate response to the conundrum that our founders bequeathed us

On 30 May, Prime Minister Narendra Modi and the cabinet recommended the promulgation, for the third time, of an ordinance amending the 2013 land acquisition Act. This followed the referral of the associated bill to a joint parliamentary committee—after it became clear that the bill could not muster the necessary votes in the Rajya Sabha.

The following day, President Pranab Mukherjee gave his assent to the cabinet’s request.

The government argues that the ordinance is necessary to maintain the continuity of its land acquisition policy, pending the bill being taken up again in the forthcoming monsoon session of Parliament. Critics contend that this represents constitutional overreach, and that it sets a bad future precedent.

Superficially, the obvious explanation for the government’s heavy reliance on the ordinance route (this is the 13th instance thus far) is its lack of a majority in the Rajya Sabha, despite holding an absolute majority in the Lok Sabha. But what both supporters and critics have, by and large, failed to articulate is the root cause—that one of several peculiarities of the particular brand of the Westminster system enshrined in our Constitution has now come to haunt us.

That peculiarity is this: by creating an upper house with political legitimacy (deriving from the fact that its members are indirectly elected), and with the power to block legislation (except money bills), the Indian polity opens itself up to the possibility of parliamentary gridlock of a sort which, ironically enough, is impossible in the UK, whose system we inherited and adapted.

We have not experienced this so far for the simple reason that, until now, we have not faced the scenario of a party holding an absolute majority in the lower house but with only a small minority in the upper house.

The experience of the UK is instructive. In 1832, the first major attempt to reform and democratize the House of Commons —by the Whig prime minister, Lord Grey —only passed a recalcitrant House of Lords when King William IV threatened to create enough new Whig peers to change the balance of power in the Lords. After this, the power of the Lords was emasculated further through successive reforms. After the last major reform, in 1999, most hereditary peers can no longer vote in the Lords, which is now constituted principally by life peers, appointed by the Queen on the advice of the prime minister and cabinet.

Ironically enough, a Lords packed with political appointees is, if anything, even less legitimate than one peopled with those who gained a seat through the accident of birth, like the monarch herself. In such a set-up, the upper house lacks political legitimacy, as it is neither directly nor indirectly elected, and it, correspondingly, lacks the authority to do little more than fine-tune, or delay, the government’s legislative agenda.

Consider also Canada, which adopted a pure Westminster system when it became a Dominion in 1867. With no aristocracy and therefore no counterpart to the House of Lords feasible, members of the Senate, Canada’s upper house, have always been appointed by the Governor-General on the advice of the prime minister and cabinet. Like life peers in the UK, members of the Senate are also, therefore, usually party loyalists—party hacks might be too unkind—and the body as a whole lacks a great deal of political legitimacy. (At the moment, that might be close to zero legitimacy, with a major expenses scandal playing out in the media.)

It is noteworthy that, while it is constitutionally feasible for the Canadian Senate to block legislation emanating from the House of Commons, that very rarely happens—a natural consequence of the body’s lack of legitimacy arising through the absence of the direct or indirect election of its members.

Indeed, the founders of the Canadian confederation always intended that the Senate should furnish a “sober second look" at legislation—not to block it perpetually and thereby engender legislative paralysis. That is why instances of a government of the day having a majority in the Commons but lacking one in the Senate have rarely if ever given rise to the sort of gridlock we are currently witnessing in India.

Most striking of all, advocacy of reform of either the House of Lords in the UK or the Senate in Canada—to allow members to be elected, directly or indirectly—is met, correctly, with the response that this would increase the political legitimacy of the upper house, thereby setting up parliamentary paralysis and even a potential constitutional crisis if an emboldened upper house attempts to derail the legislative agenda of the government emanating from the directly elected lower house.

India finds itself exactly in the fix that the UK and Canada have wisely avoided. Constitutional reform, to weaken the Rajya Sabha, is simply not politically feasible—unlike Lord Grey in 1832, Prime Minister Modi cannot ask President Mukherjee to swamp the Rajya Sabha with more BJP members.

Resorting to the ordinance route, or the even more extraordinary measure of calling a joint session of Parliament—which may yet await the land bill—is thus a pragmatic and legitimate political response to the conundrum that our founders bequeathed to us.

Every fortnight, In the Margins explores the intersection of economics, politics and public policy to help cast light on current affairs. Comments are welcome at views@livemint.com. To read Vivek Dehejia’s previous columns, go to www.livemint.com/vivekdehejia-

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