REMOVAL OF DOMICILE NEED FOR RAJYA SABHA - MAKING THE REPRESENTATIVE NATURE OF THE BODY REDUNDANT ?
The Rajya Sabha or the Council of States, according to Article 80 of the Indian Constitution, should comprise of ‘representatives of the state’. The Oxford dictionary meaning of the word representative is “a person chosen or appointed to act or speak for others”, which nowhere mentions that to be a representative of a region, a person must belong to that region. But the position of Law in India, till 2003, was different. The Representation of Peoples Act, 1951, which was passed by the constituent assembly in its capacity as the provisional parliament, in its section 3(1), mentioned that a person must be a voter of the state from where he seeks an election to the Rajya Sabha.
This provision was changed by the 2003 amendment to the Representation of People’s Act, in which the requirement was changed from ‘voter in that state’ to ‘voter anywhere in India’, i.e., the domicile requirement for getting elected to the Rajya Sabha from any state legislative assembly was done away with. The reason given by the government was that since no such requirement is mentioned in the Article 80 of the Constitution of India, then an ordinary legislation shouldn’t unnecessarily impose such a restriction.
There was a very strong opposition to the amendment by a section of jurists who believed that the Parliament had made a compromise with the federal structure of the Indian state, in order to promote the political interests of mainstream national parties.
A PIL was filed in the Supreme Court of India by journalist Kuldip Nayar, who wanted the apex Court to declare the amendment unconstitutional as it goes against the principle of federalism, which is an essential feature of our Constitution.
This case i.e. Kuldip Nayar v Union of India, became the locus classicus on this area of Law, and instead of settling the issue, gave rise to a whole new constitutional debate about the nature federalism in India. The constitutional bench of the Supreme Court decided the case in favour of the government and upheld the amendment as constitutional after hearing several contentions from both the sides. According to the applicants, the amendment was a blatant violation of the basic structure, but the Court did not even go into the basic structure debate and rejected the P.I.L. simply on the basis of literal interpretation of the Article 80.
Critical Analysis of Kuldip Nayar Judgment
A five judge constitutional bench of the Supreme Court decided the case in favour of the respondents. The Court acknowledged that federalism is an essential feature of the Indian Constitution, and Rajya Sabha is an essential part of that federal structure, but if the Constitution has prescribed that elections to the Rajya Sabha is the only qualification for being a ‘representative’ of the State, then the Court can’t declare a Law unconstitutional which simply reiterates what the Constitution has said. The Court interpreted the word ‘representative’ as a person who is elected by the state legislative assembly, and the requirement of domicile was not at all a must.
With all due respect to the Honorable Supreme Court of India, it must be mentioned that in delivering this landmark judgment, the Supreme Court focused too much on the dictionary meaning of the word ‘representative’ and state. The Court interpreted the word ‘state’ as just a territory of land, and ‘representative’ as simply a person who represents that territory. The Court didn’t take into account the fact that the idea of a state isn't just territorial; it is more about the people who live in that territory. The idea of representation in the Rajya Sabha is not to just occupy that seat, the idea is to represent the interest of the people of that states, interests that are different for the people of Bihar, different for the people of Manipur and different for the people of Goa, for which a person from Bihar, Manipur or Goa respectively is best suited. Moreover, there are certain special powers which the Rajya Sabha has, for instance creation of All India Services etc., in which the people coming from different states could contribute, but after this amendment, that role of the states is undermined, which is against the intentions of our Constituent Assembly. Therefore, the Supreme Court should have taken the intention of the Constitution makers into account, instead of just going by the literal meaning of the words.
Yes, the Representation of Peoples (Amendment) Act, 2003 and Kuldip Nayar v Union of India made the representative nature of the Rajya Sabha redundant. If we compare Rajya Sabha to the Upper Houses of other democratic states, we find that it, theoretically, has many similarities to those upper houses, for instance, if we look at the U.S Senate, both the houses are meant to serve as federal bodies which ensure that the center doesn’t overwhelm the states, and they further have a mechanism which ensures that the more populous states, don’t overwhelm the smaller states. The Australian Senate basically ensures, by equal representation of all states, that harmony is maintained between the center and the states and also within the states so that the interests of the less populated states are not ignored. The Upper House most similar to Rajya Sabha is the Canadian Senate, because it is built upon the same foundation of federalism and it has representation which is proportionate to the population of each state. These upper houses in various states work on the similar principles as Rajya Sabha, namely co-operative federalism, proportionate representation to the states, harmony between center and the state and also between the various states, and so on. None of these Upper Houses have the requirement of domicile for being a representative of the state, so logically when the Rajya Sabha is similar to these houses, the same rule should apply to Rajya Sabha and there should be no domicile requirement, and this is exactly what the Supreme Court ruled in the Kuldip Nayar case. On a superficial level, the approach of the Supreme Court seems impeccable, but if we probe deeper into it, we find that one feature which makes the Rajya Sabha unique and different from the Upper Houses round the world is the diversity present in India.
Former Prime Minister of India, Dr. Manmohan Singh, as we all know, represents the state of Assam in the Rajya Sabha. Dr. Singh was born in a Punjabi family in undivided Punjab, lived for most of his life in Delhi, and went to U.K for higher studies. On joining the Indian politics, he started representing the state of Assam in the Indian parliament, a state where he had never lived before, a state which is geographically, demographically, linguistically and culturally very different from both Punjab and Delhi. Many people might argue that Manmohan Singh was a man of great intellect, and his knowledge on the issues of national importance was not simply restricted to his own state, but it is difficult to the rebut the fact that a person coming from the Hindi speaking region of the country which is very close to the national capital is not equipped enough to know about the interests of a North-Eastern state with 13% tribal population, facing insurgency crisis, illegal infiltration, linguistic issues and so on.
Thus it becomes very important to point out that representation in U.S. Senate is focused towards maintaining a balance between the political power that the central and the state governments can exercise, in Australia it is for giving equal representation to less populated states, but in India, this structure was adopted, keeping in mind the fact that because of so much diversity and difference between different states, it should be made sure that each state can send enough number of members to the Indian parliament who can sufficiently bring up the issues of their interests at the national stage. The example of Dr. Manmohan Singh illustrated how because of the difference in the background, a person from one part of the nation can not represent the other part of the country that well, and because of this amendment to the Representation of Peoples Act, we have given the power in the hands of the main stream political parties, which have most members in the state assemblies, to order their MLAs to elect those people to the Rajya Sabha, which their party orders, and not the ones who can best represent the interests of the state. Today the B.J.P and the Congress who have the most number of seats in the Karnataka assembly, can basically have all the Rajya Sabha MPs from Karnataka, coming from the Hindi belt, who would not be able to best represent the interests of the Kannada people, and various other examples can be given for other states.
Therefore, it is my personal opinion that Indian federalism is not just not just nominal, it is not just about division of political powers and division of revenues between the state, it is more about ensuring that each and every diverse region of the country gets adequate representation by people who are best suited to represent the region, and that is why bodies like the state government and the Rajya Sabha become very important. Since the Representation of Peoples (Amendment) Act, 2003 allows the people, who are not competent to represent the state, to represent that state, it definitely defeats the purpose of Rajya Sabha and makes the representative nature of the upper house redundant.
Navin Kumar Jaggi