Granting the utility or a delaying authority and a desire for having a multitude of counselors for discussion, criticism and argumentation, controversy centres round the composition of the two chambers, designated as upper and lower, as well as first and second chambers to distinguish the two Houses.
These terms suggest that the upper or the first chamber is of greater significance than the lower or the second chamber.
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But this is not exactly correct. In the matter of constitutional powers the so-called upper or first House is in all cases, except the American Senate, the weaker of the two. Its functions are secondary and it is not always a representative chamber. It is only a historical legacy that the past name is retained and is called an upper or first House.
It must be at once said that a really satisfactory formula relating to the composition of the Upper Chamber is hard to find. The Upper Chambers in modern States exhibit considerable diversity in their structure and usually contain important survivals of historical development.
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“In qualification of their members and in the methods by which these members are chosen they often show traces of the class that proceeded modem democracy, and on the basis of their representation, especially in federations, they indicate the historic units by whose combination the State was formed.”
The following are the most important methods by which members of Upper Houses are selected. Many States combine two or more of these methods.
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The first is the hereditary principle, as it is obtainable in Britain. The House of Lords essentially consists of hereditary peers and they account for more than ninety per cent of the total membership of the whole House. How did it come about? It was a historical chance.
There is no evidence to show that the Kings had ever a mind to create peerage of a hereditary character. It was, however, a custom that a King, whenever he summoned a Parliament, would send for the same peers who had sat in an earlier one, or if in the meantime they had died, for their eldest sons. In course of time custom became a right and a seat in the House of Lords descended from father to eldest son, just as the family estate under the law of primogeniture.
The remaining membership of the House of Lords is non-hereditary and includes the Lords Spiritual, the Law Lords appointed for life, Peers and women Peers appointed for life, and the Princes of the Royal blood. But the very idea of a hereditary chamber is repugnant to a democratic age, and it can be safely predicted that no civilised country will venture to deliberately bring it into being.
If the British people were themselves to sit together to re-fashion the whole of their political machinery, the first to disappear would be the hereditary House of Lords. It is really to put democracy to shame that more than ninety per cent of the Peers should sit in their places because their forefathers had their sat before them.
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“The idea of hereditary legislators,” wrote Thomas Paine “is as inconsistent as that of hereditary judges or hereditary juries, and as absurd as a hereditary mathematician or a hereditary wise man, and as ridiculous as a hereditary poet laureate.”
Serious efforts have been made to abolish the hereditary character of the House of Lords, though without any tangible results. But even the Peers themselves are now agreed upon the imminence of some change in the composition of the House of Lords. The principle of appointment for life and the inclusion of women Peers are valuable indications of the desired change.
The second is the principle of nomination. The members are appointed to their office by the executive either for life or for a given period. The method of nomination has one advantage. The process of popular election does not always result in the selection of the ablest and most upright men.
There are in every country many talented men who are reluctant to seek election because they cannot withstand its turmoil’s and put themselves in the full glare of publicity and criticism.
The system of nomination enables such distinguished men to participate in public affairs without subjecting themselves to the rough and tumble of an electoral campaign. But a chamber composed of nominated members is not a representative chamber and, accordingly, it lacks the authority possessed by a popular House.
Moreover, nomination does not always result in the selection of talent and ability. Favouritism and services rendered to the party in power are the main criteria of nomination. The power of nomination is, therefore, likely to be abused.
The best example of a nominated chamber is the Canadian Senate. “Senatorship has been invariably regarded,” writes Professor Dawson, “as the choicest plums in the patronage basket, and they have been used without compunction as rewards for faithful party service.” The result is the low regard in which the Senate is popularly held. The Canadian
Senate hardly commands its own confidence. It is merely a recording body and it hardly disagrees with the Lower House or opposes any public bill. Sir George Foster, in the course of a debate, remarked: “Who on the street asks to know what is the opinion of the Senate upon this or that question?
Who in the press really takes any trouble to know whether the Senate has any ideas, and if so, what they are upon any branch of legislative concern, or upon conditions which require the best and most united work of all in order to arrive at a successful conclusion?” It is, therefore, difficult to see any solid value in a body of this kind.
Two methods may be adopted for the election of an Upper House: direct elections and indirect elections. Directly elected Upper House may be found in federal States like the United States of America and Australia. The U.S. Senate is composed of 100 members: two senators being returned by each one of the 50 States.
The Australian Senate has 60 members, the six States of the Commonwealth returning ten members each on the general ticket system. The main difficulty in the case of directly elected upper chamber is that it becomes a mere duplication of the Lower House. Being a representative chamber, its members cannot afford to disregard the wishes of their constituents.
Even the most courageous and honest must keep a weather eye on popular feeling. Moreover, when the Houses are directly elected, one becomes a replica of the other and it leads to chronic constitutional deadlocks as both the chambers are of equal importance and stand on an equal footing.
The Council of States in India is indirectly elected. The French Council of the Republic, under the Fourth Republic, was also indirectly elected. The American Senate, too, before 1913, was an indirectly elected chamber.
Laski, who is a supporter of unicameral legislature, is of the opinion that “of all methods of maximising corruption, indirect election is the worst”. He further says, “If such a chamber is, at the time of its selection, hostile to the government of the day, it is destructive of the quality of the work, while if it is favourable, it is probably superfluous.”
It is not, however, easy to suggest a satisfactory method of constituting Upper Chambers. Bluntschli said that distinction between the aristocratic and democratic elements in the State could not be ignored. To allow representation to only one of these elements was to do injustice to the other.
John Stuart Mill proposed a second chamber constituted on the principle of political experience and training. If one is the people’s chamber, the other should be a chamber of statesmen a council composed of all living public men who have passed through important political offices or employments. Such a chamber, Mill added, “Would be not merely a moderating body, or a simple check, but also an impelling force.”
Another method proposed is one in vogue in Norway and advocated by Lees Smith. The second chamber, according to this plan, would be a small body elected by the Lower House and its sole function would be to postpone and to revise. The best method is, perhaps, the one recommended by Sidgwick. His ideal is the combination of nomination and indirect election.
Indirect election, he said, gives to the House a representative character to some extent and nomination provides an opportunity to bring talent and experience into the legislature whose discussions may wield great influence on the electorate. The composition of the Council of States (Rajya Sabha) in India fulfils both these conditions.
The maximum strength of the Council is 250 and it consists of 238 members representing the states and the Union Territories. The representatives of the states are chosen by the elected members of their Assemblies in accordance with the system of proportional representation by means of the single transferable vote.
In the case of Union Territories members are chosen in such a manner as Parliament may by law determine. The method of election is, accordingly, indirect. The remaining twelve members are nominated by the President to represent literature, science, art and social service.
Somewhat similar are the provisions of the Constitution of the Union of South Africa which empowers the Governor-General-in-Council to appoint eight Senators in addition to the thirty-two who are indirectly elected.
The Italian Constitution makes all former Presidents of the Republic Senators for life and permits the President to appoint as Senators for life five other Italian citizens “who have brought renown to the country by merits of the highest order in the social, scientific, artistic or literary fields.”
In the United States, too, it has been suggested that all ex-Presidents be given a life-time seat in the Senate. The proposal emanates with a view to bringing Congressional-executive relations closer, but the underlying idea to make the Upper Chamber a reservoir of knowledge is also there.