rajyasabha_31214India’s Unreal Rajya Sabha

By Kuldip Nayar, March 3, 2016

Some 80 members of state assemblies have entered this month the portals of Rajya Sabha, the upper house. They represent the states since Parliament has two houses, the other being the Lok Sabha which is elected directly. The Rajya Sabha is the Council of States.

I feel that some elected members do not qualify to sit in the house. A Rajya Sabha member has to be ‘ordinarily resident’ of the state which returns him or her to the house. Keeping this in view, the Supreme Court should have thrown out the act nearly 10 years ago when it was first challenged. Instead, the court persisted with the mistake.

Subsequently, a confused bench sought to spell out the qualification for election. In its wisdom it did away with the domicile qualification for the candidates contesting for the Rajya Sabha. The qualification says that a member has to be ordinarily living in the state from where he seeks election.  The nub of the problem is that political parties wanted to do away with the domicile clause so that they could send their favourite to the Rajya Sabha even though he or she did not belong to the State or lived there. Unfortunately, Parliament substituted the word, India, in place of State. This made little sense because no person other than Indian could be elected. The Supreme Court should have restored the domicile clause but it went along with the interpretation that did away with the domicile requirement.

The proceedings of the Constituent Assembly show clearly that the two houses are different in purpose and intent. On the query of  R.Venkataraman,  a member of the Constituent Assembly, who subsequently became the country’s President Dr. B.R.Ambedkar, piloting the constitution or bill, clarified that a candidate to the Council of States should be the resident of the state concerned and a candidate to the House of People need to reside only in any parliamentary constituency.

The Supreme Court saw no merit in the plea that the elected member should be from the state “because the electorate that is electing him is required by law to do so.” It was a strange logic to justify the election of an outsider. The point at issue was not who could be elected but who could represent the state. Obviously, a person who normally lived in the state was the one because he was familiar with the state’s culture, language and its problems.

Take the case of two warring states, Karnataka and Tamil Nadu. They have a running dispute over the division of water from River Krishna. Would a person, who is a resident of Karnataka, represent the state’s interest better or the one who belongs to Tamil Nadu but has been returned by the Karnataka assembly to the Rajya Sabha? This is the reason why the National Commission, appointed by the government to review the working of the constitution, recommended “that in order to maintain basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections to the Rajya Sabhya from the states concerned is essential.” It is another matter that the government never implemented any of its recommendations.

The Supreme Court’s argument that a federation was not a territory is most untenable. A federation is a formation of separate states which retain control over their own affairs but authorize to the federation that transcend them. The entire justification of a state goes if it does not have in view its own people, sons of the soil. Agreed that “the residence is neither a constitutional factor nor a constitutional requirement,” but who forms the state, definitely not those who are not even ordinarily residents?

The Supreme Court was satisfied as long as the representatives to the Rajya Sabha were “citizens of the country.” If there was no residential qualification, all the 250 Rajya Sabha members, excluding the 12 nominated ones, could not be only from one state or even one city. Surely, the Supreme Court would not want that. There is no option to the domicile requirement if a state’s interests are to be looked after.

Unfortunately, the judgment gave a new title to the Rajya Sabha, that of “revising house”, not realizing that it would bring down its status and stature. The Rajya Sabha is an independent house, with its own duties and obligations. The role is not secondary. All bills, except those relating to money, can be introduced in the Rajya Sabha. Does it mean that the Lok Sabha becomes the revising house if and when the bill is introduced in the Rajya Sabha. In fact, the matters concerning the states, originate in the Rajya Sabha. All questions relating to the central services and the like are initiated in the Rajya Sabha.

I express my inability to make out what the Supreme Court means when it says that right to elect “is neither a fundamental right nor a common law right, but pure and simple, a statutory right and not a constitutional right.” The two arguments are contradictory. How does a country stay democratic if the right to elect is not something basic or fundamental? In real, this very right differentiates democracy from dictatorship.

It is sad that the Supreme Court judgment has wide opened the doors of the Rajya Sabha to the money bags, the mafia or the like. The house has become a hunting ground for those who have a clout or deep pockets. Political bosses bring to the house their favourites living in any nook and corner of India. The constitution lays down that only 12 members will be nominated to the Rajya Sabha. Now the whole house is nominated by political masters.