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AMITY LAW SCHOOL NOIDA

SIGNIFICANCE OF THE UPPER

HOUSE IN A DEMOCRACY

NAME: Sanskriti rastogi SUBMITTED TO: Ms.Swati Kaushal

ENROLLMENT NO. A3211118231
SECTION: C
COURSE: BA.LLB (H)
SEMESTER: 3
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TABLE OF CONTENTS

SR. NO. SUBJECT PAGE NO.

I. INTRODUCTION 3

II. HISTORY OF 3-4

BICAMERALISM

III. BICAMERALISM AND 4-6

THE UPPER HOUSE

IV. IMPORTANCE OF 6-7

UPPER HOUSE

V. UPPER HOUSE IN 7-10

DIFFERENT
COUNTRIES
VI. VIEWS OF POLITICAL 11
THINKERS ON
EXISTENCE OF UPPER
HOUSE

VII. CONCLUSION 11-12

VIII. BIBLIOGRAPHY 12
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I. INTRODUCTION

A democracy is a government by the people, of the people and for the people. The supreme
power in a democracy ideally lies with the people which is either excercised directly or indirectly
by them through elected agents under a free electoral system. In a democracy, a government is
only one element designed to coexist with varied institutions, political parties, organizations, and
associations, which is termed as pluralism. The three organs of a government in a democracy are
executive judiciary and legislature. It is imperative for all the organs to function in an unbiased
way, perform its functions for the improvement of the state and uphold the principles of
democracy in every way. The structure of legislature is different in the different forms of
government in a democracy, i.e presidential and Parliamentary. The legislature can be
Unicameral, Bicameral or in very rare cases Tricameral. Both the forms of government support
Bicameral Legislature as well.

Bicameral Legislature has legislators in two separate chambers, or houses. Bicameralism is

distinguished from unicameralism,(where there is presence of a single chamber and all members
legislate and vote as a single entity) from some legislatures that have three or more separate
chambers, or houses. The existence of a second chamber also known as the upper house is a
distinct feature of Bicameral Legislature. The other house is known as the lower house.
Examples of upper houses in countries include Russia's Federation Council, the Australian
Senate, Malaysia's Dewan Negara, United Kingdom's House of Lords the Canadian Senate,
India's Rajya Sabha, United States Senate, Pakistan's Senate etc.

II. HISTORY OF BICAMERLISM

The 18th century witnessed one of the great experiments in constitution making. The constitution
of U.S.A. adopted Bicameral Legislature and made provisions accordingly which exhibited
usefulness of a second chamber for the successful working of a federal system. The Founding
Fathers of the United States of America favored this legislatorial structure. Most of the countries
in Europe in the 19th Century had already adopted a bicameral system by then. The modern
bicameral system in the continent of Europe really dates back from the later 18th Century when
the French revolutionary ideas reinforced by English example, ushered in the new epoch of
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constitutionalism.1 The Viscount Bryce Conference advocated the existence of an upper house
in 1918 and led the conference on reform of the second chamber. Laying down the functions of
a potential upper house it concluded that upper house should use its suspending power when the
country is in doubt which might affect the constitution.

III. BICAMERALISM AND THE UPPER HOUSE

Bicameralism is the practice of having two Houses of Parliament, i.e Upper and lower house.
The extension of constitutional government globally empowers most countries to adopt the
English or U.S. models, of Bicameralism for establishing Bicameral Legislature. The lower
house or the first chamber is chosen by popular vote and in the upper house or the second
chamber members are either elected or appointed and often represented political subdivisions,
such as the Swiss cantons. The bicameral plan is usually found in federalistic governments, like
the United States, Canada, and Australia also in quasi-federal governments, Germany and India.

The upper house has different features and functions in the forms of government.

 Parliamentary system of government

In this form of government the upper house usually does not enjoy higher powers than
the Lok Sabha, rather it is the opposite. It functions as an advisory body and cannot
perform any direct actions. It has to work with certain restrictions like:
o Lack of control over the executive branch. It does not enjoy powers like that of
presidential governments where upper chamber has control over the members of
the Cabinet and the administration through exclusive right of confirming the
president's nominations to senior offices.
o No absolute veto of proposed legislation, though suspensive vetoes are permitted
in some states.
o If it can veto legislation (like in the Netherlands), it doesn’t have the power to
amend the proposals.
o A reduced or even absent role in initiating legislation.
o No power to block supply, or budget measures. However only Australian senate
possess this power which it exercised in 1975.

1
http://mls.org.in/books/Hb%20851.pdf
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The Italian Senate serves as an exception to the above restrictions. It shares the same powers as
that of the lower house, where law can be initiated by both the houses and needs to be approved
by both of them. Italy serves as an example of perfect Bicameralism.

Even without a veto, an upper house may defeat legislation. Its opposition may give the lower
chamber a chance to reconsider or even abandon a controversial measure. It can also delay a bill
so that it does not fit within the legislative schedule, or until a general election produces a new
lower house that no longer wishes to proceed with the bill.

In certain Parliamentary form of government countries the Upper House:

o Can only vote on limited legislative matters like ,constitutional amendments,

o cannot initiate most legislative duties like those pertaining to supply/money-
money bill
o Cannot vote a motion of no confidence against the government (or such an act is
much less common), while the lower house always can.

Parliamentary form tends to dilute the effect and powers of the upper house in relation with that
of the lower house. Some of them have been completely abolished like the legislative council of
Queensland in Australia. This portrays weakening effect of Bicameralism in Parliamentary form.
 Presidential form of government
In presidential form, the upper house shares nearly equal powers with the lower
house. Powers of the lower house are subject to restrictions which tantamount as
the specific powers of the upper house, i.e:
o Act as an advisory body as well as a consenting body for some executive
decisions including appointments of cabinet ministers, judges or
ambassadors.
o It can exercise its sole power to ONLY try impeachment cases of
officials from executive or judiciary.
o It can also ratify or denounce foreign treaties as a sole authority.
 Semi presidential system
It is a system also known as dual executive system. Many countries like France
function as semi presidential. In a semi presidential system, the upper house:
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o Does not have higher power than the lower house.

o However it may have equal power on the subject of constitution or the
territorial collectivities (in semi-presidential France, the Government can
decide to legislate a normal law without the Sénat's agreement (Article 45
of the constitution).

IV. IMPORTANCE OF UPPER HOUSE

For the successful working of a federal system, Second Chambers are regarded as essential for
safeguarding the rights and interest of the federating units.

Laski quoted, “A second chamber is no more likely than the first to be correct in its judgments
on the electoral will.”2 An upper house is a lead in reinforcement of the republican core values
which are reflected by dignifiedly healthy debates, meaningful arguments and discussions in
Parliamentary Democracy. With provisions of freedom of speech and allowances of being
objective, the upper house presents itself to be a significant pillar of democracy.

 Significance of upper house:

A) Upper house acts as a deterrent for hasty, rash and ill-considered legislation .
It is a fit instrument for channelizing sobriety of thought and prevalence of objectivity on
measures passed by the Lower House. Establishment of the upperhouse acts as check on
the decisions made by the lower house and corrects faulty legislation.
B) Increased representation by eminent members:
By establishing the second chamber, all the communities and interests get representation
in legislature, such a second chamber will have men who are eminent by their ability,
men who are politically and administratively experienced people to be useful in the art of
law making, men who have gained experience in various forms of public work, such as
local government and permanent civil-service at home or abroad, or who possess special
knowledge of important branches of national life as for instance agriculture, commerce,
industry, finance, education, etc3

2
http://tnschools.gov.in/media/textbooks/11__Pol_Sci_Vol_1_EM.pdf
3
http://mls.org.in/books/Hb%20851.pdf
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C) Lessen the work load of lower house:

Due to over increasing volume of legislations in a modern State, it is extremely difficult
for a single chamber to devote sufficient time and attention to every measure that comes
before it.
A second chamber naturally gives relief to the Lower House.
D) Adequate representation of communities and minorities which is an essential in
federalism.
A Bicameral Legislature protects the interests of minority groups.
E) Proper expression of public opinion on highly pressing issues
F) The second chamber of Bicameral Legislature checks the excesses and guides
against the tyranny or dictatorship of a one chamber.4

 CRITICISM

Upper House as an advisory body tends to exercise its restraining influence, defeating the core
purpose of the Lower House. The law is the will of the people and people cannot have two
contrasting wills on a subject at a current time critics observe that the maintenance of a upper
house wastes a lot of public fund and is expensive. Moreover, it is believed that interests of the
fedral units can be better safeguarded through a proper distribution of powers between the centre
and the state and by a process of judicial review.5.Upper house may cause delay in law making
as well if there are grave differences between the members of both he houses.

V. UPPER HOUSE IN DIFFERENT COUNTRIES

Significance and role of the second chambers has always been the subject of controversy in the
history of representative Government, yet majority of the democratic countries have found it
useful to have a Bicameral Legislature.

1. CANADA:

The Parliament of Canada comprises of the Sovereign, the Senate and the House of Commons
and the consent of all three is necessary for the conduction of legislation.

4
Advantages and Disadvantages of Bicameral Legislature ( Nov. 25, 2017),
5
http://mls.org.in/books/Hb%20851.pdf
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The House of Commons (lower house) and the senate (upper house) share equal powers with
subject to restrictions:

a) Section 53 of the Constitution Act, 1867 empowers the house of commons

to intiate the money bills.
b) Section 47 (1) of the Constitution Act, 1982 provides that amendments to
the Constitution can be made without the consent of the Senate.

The accountability lies highly on the House of Commons which act as a dominant, by deciding
which party is in power etc. The Senate′s power to investigate issues of concern to Canada can
raise profile on voters′ political agendas.

The constitutional foundation defines a selection process whereby Senators are appointed by the
central government’s executive (specifically by the Governor General, acting on the advice of
the Prime Minister) and whereby the Legislature is limited to a fixed size, based upon an equality
of regional divisions.

2) INDIA

At national level the Parliament is divided into two houses, Rajya Sabha (upper house) and Lok
Sabha(lower house)

A) Rajya Sabha or Council of states :

 Is a representative of the States in the Union legislature.
 Having a maximum membership of 245, of which 233 are elected by the
legislatures of the states and union territories by usage of single transferable votes
through Open Ballot and simultaneously the President can appoint 12 members
for their work in art, literature, science, and social services.
 The Rajya Sabha meets in continuous sessions, and unlike the Lok Sabha, it is not
subjected to dissolution. However, the president has the powers to discontinue the
Rajya Sabha, just like the Lok Sabha .
 The laws can be enforced only if the initial resolution is passed by Rajya Sabha
by a two-thirds supermajority. The union government cannot make a law on a
matter reserved for states without any authorisation from Rajya Sabha.
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 Restrictions :
 Under Article 110 of constitution of India a money bill can be initiated
only in the Lok Sabha by a minister on recommendation of President of
India. When the Lok Sabha passes a money bill then the Lok Sabha
transmits the money bill to the Rajya Sabha for 14 days for
recommendations if any. Even if Rajya Sabha fails to return the money
bill in 14 days to the Lok Sabha, that bill is solidified to have been passed
in both Houses. Hence, Rajya Sabha can only give recommendations for a
money bill and cannot amend a money bill. This is done to ascertain that
Rajya Sabha must not add any non money matters in money bill.
 Article 108 provides for a joint sitting of the two Houses of Parliament in
certain cases. A joint sitting to be summoned by the President of India in
cases when one house has rejected a bill passed by the other house, took
no action on a bill transferred to it by the other house for six months, or
has disagreed to the amendments proposed by the Lok Sabha on a bill
passed by it. In joint sittings of Parliament, the Lok Sabha tends to have a
greater influence than the Rajya Sabha. Joint sessions of Parliament have
been summoned only 3 times in last 72 years for :
o 1961: Dowry Prohibition Act, 1958
o 1978: Banking Services Commission (Repeal) Act, 1977
o 2002: Prevention of Terrorism Act, 2002
 No-confidence motion: Unlike the Lok Sabha, a member of the Rajya
Sabha cannot bring to house a no-confidence motion against the
government.
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B) RAJYA SABHA vs LOK SABHA

LOK SABHA RAJYA SABHA
NAME The House of Commons Council of states
TENURE Total tenure – 5years,  Permanent house, no
subsequent to which it tenure.
dissolves.  Every 2years, 1/3rd
of the members
retire
ELECTION OF Directly elected by the Elected by state legislative
MEMBERS citizens eligible to vote assembly members through
during general elections single transferrable vote.
Special powers  Money can only be  Make laws on
introduced in Lok matters in state list
Sabha. only in national
 Sanction the interest.6
government
expenditures
 Amendment seeking
bills to passed in
Lok Sabha

Maximum no. of members 552 250

Age of eligibility of a MP 25 years 30 years
Representatives Speaker is representative of Vice President is the
the Lok Sabha representative of the Rajya
Sabha.

6
https://archive.india.gov.in/govt/Parliament.php
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VI. VIEWS OF POLITICAL THINKERS ON EXISTENCE OF A UPPER HOUSE

Dr. AMBEDKAR– “The Upper Chamber represents the States and their resolutions would be
tantamount to an authority given by the States. The framers also conceived of the Rajya Sabha as
a sort of House of Elders which would provide 5 representation to learning and experience and
where seasoned people would hold dignified debates. But in actual practice the Rajya Sabha does
not appear to have followed the intentions of the farmers very closely. The hope that it would
function as a federal Second Chamber representing the constituent units has not been borne out
either by its constitution or by its actual working.”7

President of India-and the first Chairman of the Rajya Sabha - Dr. S. Radhakrishnan:

“There is a general impression that this House cannot make or unmake governments and,
therefore, it is a superfluous body. But there are functions, which a revising chamber can
fulfill fruitfully. Parliament is not only a legislative but a deliberative body. So far as its
deliberative functions are concerned, it will be open to us to make every valuable
contribution, and it will depend on our work whether we justify this two chamber system,
which is now an integral part of our Constitution. So, it is a test to which we are
submitted. We are for the first time starting under the Parliamentary system, with a
second chamber in the Centre and we should try to do everything in our power to justify
to the public of this country that a second chamber is essential to prevent hasty
legislation.”8
VII. CONCLUSION:

The upper house has been observed to be a advisory body which achieves an effect of

minimalisation of undue pressure on the members of the Parliament in a democracy. It

prevents faulty legislation and acts as a catalyst for social change. It assists in working

towards a evaluative approach and yielding a new outlook and methods of upholding the

provisions of the constitution. Besides its criticisms of acting as a factor of major delay in

7
Ibid 5
8
Ibid 5
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decision making in a democracy, it has proven to be an effective instrument of law

making by various political thinkers.

VIII. BIBLIOGRAPHY

 www.Parliament.uk/briefing_papers/sn039900.pdf.

 Constitution of India 2013 By Universal Law Publishing Co. Pvt.Ltd., New Delhi, India.

 Rajya Sabha Website www.rajyasabha.nic.in\

 Second Chambers – Bicameralism Today –Editor R.C. Tripathi, Rajya Sabha Secretariat.

 http://mls.org.in/books/Hb%20851.pdf

 https://www.britannica.com/topic/bicameral-system

 https://www.thehindu.com/opinion/op-ed/what-is-bicameral-legislature/article26763394.ece

 Constitutional Law of India, J.N PANDEY

 "Rules of procedure and conduct of business in Rajya Sabha" (PDF)

(https://rajyasabha.nic.in/rsnew/rs_rule/rules_pro.pdf)