Opening the door to graft and nepotism

In considering the two houses of India’s Parliament, Kuldip Nayar casts doubt on the criteria by which certain members are selected for the Rajya Sabha.

This month some 80 members of state assemblies have entered the portals of the Rajya Sabha (or Council of States), the Indian Parliament’s upper house. They represent the states since Parliament has two houses, the other being the Lok Sabha, which is elected directly.

I feel that some elected members do not qualify to sit in the house. According to the constitution, a Rajya Sabha member has to be ‘ordinarily resident’ in the state which returns him or her to the house. Keeping this in view, the Supreme Court should have thrown out this clause nearly ten years ago when it was first challenged, since it has so often not been followed. Instead, the court persisted with the mistake.

Subsequently, a confused bench sought to spell out the criteria for election. In its wisdom, it did away with the domicile qualification for candidates contesting seats in the Rajya Sabha. This qualification says that a member has to be living in the state in which he or she 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 candidate to the Rajya Sabha, even though he or she was neither from that state, nor lived there. Unfortunately, Parliament substituted the word ‘India’ for ‘state’. This made little sense because no-one other than an Indian could be elected. The Supreme Court should have restored the domicile clause but instead, it removed this requirement.

The proceedings of the Constituent Assembly show clearly that the two houses are different in terms of purpose. 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 a resident of the state concerned, while a candidate to the House of People need only reside in any parliamentary constituency.

The Supreme Court saw no merit in the plea that the elected member should come from the state ‘because the electorate that is electing him is required by law to do so’. This 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. A person who normally lived in the state was the obvious choice because he or she was familiar with the state’s culture, language and problems.

Take as an example two warring states, Karnataka and Tamil Nadu. They have a running dispute over the division of water from the River Krishna. In the case of Karnataka, would a person who is a resident of that state represent its interests better, or one who belongs to Tamil Nadu but has been returned to the Rajya Sabha by the Karnataka assembly? This is the reason why the National Commission, appointed by the government to review the workings of the constitution, recommended that ‘in order to maintain the 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.

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The Rajya Sabha (or Council of States) is the Indian Parliament’s upper house

The Supreme Court’s argument that a federation was not a territory is untenable. A federation is a formation of separate states which retain control over their own affairs but ultimately defer to the federation that transcends them. The entire justification for a state disappears if it does not have in view the interests of its own people, sons of the soil. I agree 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 250 Rajya Sabha members, excluding the 12 nominated ones, could, in theory, be from only one state or even one city. Surely the Supreme Court would not want that. There is no alternative 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 realising that this 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 this mean that the Lok Sabha becomes the revising house if and when the bill is introduced in the Rajya Sabha? In fact, matters concerning the states originate in the Rajya Sabha, and all questions relating to central services and the like are also initiated there.

I express my inability to make out what the Supreme Court means when it says that the 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 reality, this very right differentiates democracy from dictatorship.

It is sad that the Supreme Court judgment has opened wide 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 clout or deep pockets. Political bosses can bring in their favourites, who may live in any nook and cranny of India. The constitution stipulates that only 12 members will be nominated to the Rajya Sabha, but now the whole house can be nominated by the political masters. This situation must be redressed.

All bills, except those relating to money, can be introduced in the Rajya Sabha.

 

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