BY N. D. VARADACHARIAR

I shall, in the course of this article, offer a few observations upon two questions connected with the projected All-India Federation, (i) the proposal to constitute the federal upper chamber along the lines of the German Bundesrat and Reichsrat, and (ii) an aspect of the ‘in and out’ principle of legislative procedure as applied to the representatives of the Indian States in the federal legislature.

Sir Samuel Hoare in his speech to the Federal Structure Committee on December 31, 1930, originated the proposal of a second chamber in the federal legislature consisting of delegates of the governments of the units of the federation. He said that this was the best means of preserving the federal character of the constitution. Mr. Jinnah was opposed to the idea, but Lord Peel strongly backed it. There was such little support for it among the delegates that it was not considered necessary even to mention it in the Report of the Committee.

About this time, Sir Mirza Ismail, the Dewan of Mysore, one of the most enlightened and progressive statesmen of Indian India, published a draft scheme of federation. In this scheme he offered alternative proposals for the organisation of the federal legislature. The scheme which he himself preferred, provided for a second chamber to function eventually if not immediately as a federal chamber, consisting of representatives of provincial legislatures, of special interests, and of Indian States, numbering in all about 210, of whom 70 were to come from the States. The British Indian members of this chamber sitting alone would act as a revisory body over the Legislative Assembly, which latter would remain a purely British Indian institution as at present. The full Senate would be the sole federal legislative organ.

But after he heard Sir Samuel Hoare's proposal, Sir' Mirza began to champion it with great enthusiasm, abandoning his own plan. He discussed it with his colleagues of the Second Round Table Conference, and made a weighty statement in support of it during the discussion of Clause 12 of the draft Report of the Committee. He also circulated a Memorandum to the Committee in which he sketched his scheme in greater detail. There is no further reference to this scheme in the Reports till we come to the proceedings of the Joint Parliamentary Committee. Sir Austen Chamberlain raised the question on July 20, 1933, when he interrogated the Secretary of State about the feasibility of adopting the German second chamber plan. The Secretary of State confessed to his personal preference for the scheme, but said that he could not usefully pursue the matter when he found such little support for it among other delegates of the Conference. The next day, Sir Mirza Ismail had the matter further probed and, considering its importance, the Chairman requested him to submit a Memorandum on the subject, which he did. It is this Memorandum which the Indian press has recently published.

The only precedent for this idea in the history of federations is the German constitution. Both in the Imperial constitution of 1871 and in the Republican constitution of 1919, the upper chamber of the federal government was constituted out of plenipotentiaries sent by the governments of the various State-units, who voted in accordance with instructions from their respective governments. The precedent is of little weight or authority, as the Imperial constitution merely cloaked the autocracy of the Emperor, a consummation for which we have no desire in India. Writers on the German constitution think that the Bundesrat, in the way its relation to the popular chamber was fixed by the constitution and practice of the German federal legislature, was in no small measure responsible for this result. The Republican constitution has never yet worked under normal col1ditions, and has recently been suspended by the Nazi Revolution. Besides, it has been frequently pointed out that the German constitution was devised by persons who were really dominated by the unitary idea. The constitution and powers of the Bundesrat and the development of the theory of kompetenz-kompetenz have been mentioned as two significant indications of this unitary bias in the constitution. How is such an institution, inspired by a contrary purpose, at all suitable for India? Therefore German history can hardly furnish any guidance in this matter. Sir Mirza Ismail’s proposal must be considered upon its own merits, irrespectively of precedents.

Sir Mirza proposes that the Indian Federal Assembly should consist of between 300 and 350 members, 2/3 of whom will be elected directly by the voters in British Indian provinces, while the rest will be chosen by the various States in the way they themselves determine upon. The upper chamber will consist of 60 members, of whom 24 will represent the States and the rest, British India. The scheme contemplates that the central government shall also be represented in the Senate ‘to safeguard the co-operation of the supreme federal authorities.’ These members will be sent to the Senate, known as the Federal Council, by nomination by the government of the unit concerned. They will vote according to the instructions they receive from their governments, and a vote not instructed will not be counted as in Germany. This will be a co-ordinate house with the popular chamber, but with certain additional rights. All the measures of the Federal Executive will have to be submitted first to the Council, and the Council may propose alterations and amendments. The Executive may either accept these, or if it should reject them, the Council will have the right of appending a statement to the Bill giving its objections there-to, and it is only with this statement appended that the Bill will go before the popular house. Should the Bill be passed by the lower house in a form unacceptable to the Council, the latter has a power of suspensory veto over that legislation, and a special weighted majority is required before such a Bill may again be passed by the lower house in order to become law. The Council will have further the right of superintending administration, calling for reports, instituting inquiries, etc. And lastly, the Council will propose candidates for appointment to high offices of state, and although the Executive will not be bound by these nominations, it will generally endeavour to give effect to the recommendation of the Council. When a subject affecting a State not represented in the Council is under consideration, it is open to that State to send a representative to discuss, but not vote in the Council. It is claimed for this scheme that it establishes a truly federal chamber, different in functions and in the quality of its personnel from the lower house, and as such a much better second chamber than what the White Paper provides for.

In the first place, we have to note that a federal upper house like this cannot function as a deliberative body. When the hands of the representatives are manacled by the governments nominating them, and they are bound to vote according to previously issued instructions, discussion at the Council becomes a farce. There is no opportunity and no right to persuade and be persuaded, the great purposes for which deliberative assemblies are primarily intended. What will happen is that the governments of the various units will first discuss the questions set down in the Council's agenda for the next meeting, come to their own conclusions upon them uninfluenced by the views and arguments of other governments or units of the federation, and send representatives to the Council to register their decisions there for them, after going through the mockery of a debate, fruitless and formal, merely for purposes of the record. Indeed this body has been described as an administrative council. This description is its greatest condemnation. To establish an administrative council which will have the power of choking the popular house is to render even elementary democracy nugatory. Nor will it help in vigorus Government, because this Council which has no responsibilities of its own will persistently harass the Executive for Reports and with intermeddling inquisitions so as to weaken the exercise of powers under definite and defined responsibility to the popular house. Nothing more destructive of the fundamental basis of government by discussion could be contemplated.

Secondly, Sir Mirza Ismail has not given any details as to how these 60 seats will be distributed among the various units. It must be remembered that a large section of opinion among the States favoured houses of some size, so that all the units may obtain direct and individual representation. The opposing view emphasised the difficulty of expediting business in a large and unwieldy house. The White Paper seeks a compromise in the greatest common measure of agreement among the delegates. But it is obvious that Sir Mirza's figure of 60 will be totally inadequate to satisfy the barest minimum requirements of representation. He recognises this, and so provides that where a unit is not represented on the Council, and a matter affecting it is being considered, that unit shall send a representative to discuss but not vote. Of what use is the discussion when this poor unit's fate has already been settled by previously instructed plenipotentiaries who alone enjoy the right of vote in the Council? Sir Mirza has not explained on what principle the exclusion of certain units can be justified. Instead of effectuating equality of States, big and small, this scheme creates a privileged caste among the units of the federation, an arrangement wholly contrary to the spirit of federalism. Most federal constitutions have not only given representation to every unit of the federation in the federal chamber, but have gone further to establish full equality by giving States, whatever their size or population, an equal representation on that body. Sir Mirza Ismail's federal Council, far from being a truly federal institution, is the very negation of it.

An original feature of his scheme is that he gives representation to the Federal Executive on this Council. He appears to have been influenced by the example of the Premiers’ Conferences in Australia in making this suggestion. It is not disputed that conferences of officials of various States, dealing with similar subjects or having common interests, are frequently useful in helping to achieve uniformity of administration. They are also useful in providing a field for exchanging opinions and devising plans to meet administrative difficulties of various kinds. Such conferences are already familiar in India. But their usefulness is because their decisions are not binding, and they themselves are informal unofficial conferences. The moment their decisions are given a legal value, it is the units of the federation that administer the federal subjects as a matter of fact; for against their combined strength, the Federal Executive can hardly prevail. It is a very clumsy arrangement which is theoretically indefensible, and which, however willingly worked in practice, will give rise to no end of difficulties.

One of the important requirements of any revisory chamber is that its opinions and policy should be steady, that its counsel should be consistent. The usual device by which the continuity of the federal house is maintained is to provide for an undissolvable chamber to which members are chosen by rotation. This salutary provision is found in the American constitution. The Reichsrat, by its standing orders, is also in permanent session. The difference however is that this Council is composed of members whose credentials are liable to cancellation arbitrarily. The members being delegates of governments, they will hold office only so long as the governments nominating them are in office. There is no guarantee that all the governments of the units will change simultaneously. With each change of provincial or State government, the personnel of the Council will also change, and with the change of personnel, party alignments will alter and the policy of the Council also waver and oscillate. Sir Mirza does not contemplate the existence of parties in the Council. He thinks it will consist of experts who will not be bound by party ties. This is only a pious wish, for the government of each unit will necessarily have a party colour, and that colour would inevitably be reflected in the Council. An august Senate such as a second chamber should be, is not to be created out of such discordant elements. Sir Mirza Ismail's Council will be an eccentric body, of variable temper and inconsistent moods, pulling in different ways and possibly at cross purposes.

The functions assigned to this Council deserve the closest scrutiny. The Executive has to place all its proposals first before it. As, in any constitution, most of the legislative business will be government business, this means that the Council becomes the real initiatory chamber. Thus the universal practice of the popular chamber being the house of initiative in respect of really important measures is departed from. The Council is not merely a probuleutic or preconsidering body. If it objects to the form of the Bill as passed by the lower house, it may exercise what has been described as a suspensory veto. The effect of this veto is to remit the Bill to the lower house, which will have to show a special majority of 2/3 or 3/4 in order to make a law of that Bill. There is not even the safeguard that the exercise of this veto should be by a special majority of the Council. Where the party system obtains it is rarely that a Bill can command a special majority, such as has been prescribed by Sir Mirza, in the popular house. Under this scheme, the lower house which is to represent the nation is relatively a secondary and helpless body working to the dictation and schedule of the upper house, which has no means of getting its positive wishes carried out, but which at best may succeed occasionally in defeating executive measures. The Executive itself will have to depend slavishly upon the support of the upper house, as very little can be done without its co-operation. No sort of responsibility can be owed to a lower house thus constituted. By a combination of the probuleutic principle and the suspensory veto, a simple majority of this only partially representative Council of delegates, not susceptible to persuasion in a free discussion, is made the virtual dictator under the constitution. There is no doubt that in an arrangement like this legislation will be extremely tardy and difficult; and yet we know that in a modern State, especially in a federal State, the output of legislation is necessarily large and will go on increasing. A more effective clog in the constitutional wheel than this Council is not easy to invent.

And curiously enough, Sir Mirza Ismail characterises this Council as possessing an ‘inferior status in legislation.’ It is really the dominant house. Even in regard to financial matters the Council quietly assumes the superior role. Money Bills are always government measures, and being so, they have to be first introduced in the Council. The Council proposes alterations with which the Government must agree; otherwise the Council states a case against the Bill to the lower house. The lower house is so cussed as not to agree with the Council; the result is a ‘suspensory veto.’ If the lower house fails to mass a stupendous majority thereafter against the Council, the Money Bill goes under. Sir Mirza has not shown a way out of this impasse. He relegates the popular house to the position of second chambers in other constitutions, which have the power of disagreeing with the first chamber, but where after the lapse of a time the first chamber prevails over the second in spite of disagreement. It is well known that in England the second chamber is practically powerless In Money Bills.

Sir Mirza Ismail has thus unwittingly devised a perfect autocracy for federal India, and an unbalanced autocracy at that. His reasons do not convince. He speaks of a ‘federally- minded’ chamber. Is there in the whole world a more federally-minded chamber than the American Senate? Let us see how that august body is constituted.

Originally, the members of the Senate were chosen by each State, the members of its legislature forming an electoral college for the purpose. Each State, irrespective of its size or population, chose two members for the Senate. There arose a difficulty. The voter in exercising his franchise had really to decide at one election upon two different sets of issues, State and National. A candidate's programme, as far as the State was concerned, might be acceptable to him, but that candidate may not vote for the right man in the Federal Senate election. Thus either a vote was given irrespective of federal issues or if the federal issues were primarily considered, the State issues had often to be ignored. In this dilemma, neither of the two elections really represented the people's wishes. To get over this, certain States adopted the expedient of holding a primary election for the Senator, and all the candidates chosen to the State legislatures felt bound to vote for the person elected to the Senate at the primary. It often happened that a Democratic member of the State legislature had for this reason to vote for a Republican candidate to the Senate and vice versa. To set these anomalies and inconveniences at rest, the 17th Amendment was passed in 1913 by which the Senators are elected directly by the voters of the States, the entire State being treated as one constituency. This practice has been the result of growth, and has been reached to meet definite difficulties which could not be skirted otherwise. Australia and most other federations, with the notable exception of Canada, are using this method. American history, a warning against the White Paper proposal, is conclusive of the utter inadequacy of the German plan for Indian conditions. Sir Mirza states his case against the American system in the following words: "The fault lies in the fact that the States forming the federation have not been entrusted with co-operation in the work of Central Government." He says that the people who are one political factor, are doubly represented. Unless the representatives composing the Federal Council are chosen in some way by the governments of the units, the constitution will still be that of a unitary State, as the federal elements will be lacking. In urging this argument, the result of which is to negative the federal character of the U. S. A., Australia, and Switzerland among other countries, Sir Mirza has failed to take account of the difference between territorial constituencies within a State, and the whole State itself forming a single constituency. The federal mind, in democratic systems, is sought to be ascertained by means of representatives of the voters of the State as a whole, instead of those who can claim to represent only sections of the State. Any more emphasis on federal units is rightly understood to be conflicting with the essential purpose of federation, which is to make a single nation of all the peoples comprised in the federation. To say, further, that an arrangement by which the two chambers are elected by the people really creates a unitary government, is to miss the significance of the State as a single constituency and unit of representation. The theory forwarded by Sir Mirza has no basis in history, except the inconclusive precedent of Germany, and has very little support among the jurists and philosophers of federal polity.

No doubt Sir John Marriott has said that if both the chambers are chosen by popular election, there is rivalry between them and the second chamber races for equal powers with the popular house. But where in a constitution like what has been described in the White Paper, theoretical and actual equality is given to the second chamber with the first, it is a little difficult to understand this argument. There is no question of rivalry, because you are giving really and substantially equal powers to them, and in case of conflict, you have provided for a third party to intervene. In any event, this cannot be an argument in favour of Sir Mirza Ismail's scheme which attempts to solve the question by placing the lower house in a relatively weaker position. This, of course, is no solution at all.

It is therefore no wonder that few delegates of the Round Table Conference displayed any enthusiasm for Sir Mirza's scheme. It misses the purpose of all this long and arduous popular agitation for reforms; it establishes a stiff and unresilient mechanism, containing the vicious principle of a changeful and unsteady autocracy, a principle disastrous to the progress of popular sovereignty and full of possibilities of internal conflicts in the constitution.

I have left myself very little space to consider the second question. In his evidence before the Joint Parliamentary Committee, Sir Samuel Hoare has said that it is contemplated that in the federal legislature, whenever a purely British Indian subject is under discussion, the representatives of the States would not participate in the discussion or in the vote, unless the question involves the fate of the Executive, in which case the matter would have assumed an all-India interest justifying their participation. He has also said that, as far as possible, efforts would be made to have a uniform surrender of powers by the State units in favour of the federal government. But those who have read the Davidson Committee's Report and the subsequent discussions about this matter will know that a very considerable dissimilarity in such surrendered powers is bound to exist. The question which has not yet been considered is: What is the procedure if a subject which has been surrendered to the federation by only some of the States is before the federal legislature? Will the representatives of those States, who have not surrendered that particular power, be able to take part in the discussion, or should they stay out as it is not a matter with which they are concerned? If the ‘in and out’ principle is strictly enforced, these unaffected States must stand out. The result will be that on such questions, the legislature will consist of all British Indian representatives and only such State representatives as have agreed to be bound by the federal legislature's decision in the matter. If so, what is the value of the weightage which the States have secured for themselves in the two houses of legislature? Either the weightage is intended to secure the States against a real disability, or it is not. In cases such as I am now considering, the weightage is no protection. The difficulty arises because it was most improperly assumed that the States as such could be differentiated from British India for purposes of federal legislation and administration. Here we have an example of the kind of problem that the federation is going to raise. I leave the implications of this situation to be further investigated by the pundits.

BACK