Bringing down the Upper House

The deletion of residential requirement has negated the state representation which is the cornerstone of the Rajya Sabha edifice. The Constitution framers were of the view that the House of the People (Lok Sabha) would be directly elected in an atmosphere of emotion and excitement. Therefore, the states had to have their own entity which people in the heat of general elections might not take into account when voting. The Rajya Sabha, not hurried or hassled, would safeguard the interests of the states. Some members in the Constituent Assembly, K.T. Shah to name one, pleaded for incorporating the principle of equality among the states while distributing seats in the Council of States. Another member, Lok Nath Mishra, took the stand: “Since the Council of States is going to represent the states, it is but fair to the states that these units should be dealt with as units and every unit is equally represented.” He had the pattern of the US Senate in view.

The Constituent Assembly did not agree to the suggestions. Yet, Dr B.R. Ambedkar, while piloting the Constitution Bill, assured that “the Upper House represents the states.” He went further to say that its resolutions would be tantamount to the authority given by the states. For example, all bills relating to all-India services would be moved in the Rajya Sabha because they were ultimately for the states. How could a Parliament, armed with no backing of something like the referendum, change what was decided by the Constitution Assembly?

Another aspect is that even though India follows the unitary way of governance, it claims to be a federation. In fact, the Constituent Assembly’s first resolution was to give “residuary powers” to the states. The aftermath of Partition forced it to opt for a strong Centre. Still, the Sarkaria Commission on Centre-state relations made it clear in its report that India is a federal polity. The question is how can a federal polity reduce the role of states? The very dependence of the structure is on them. The Rajya Sabha, their House, will now have members who are from outside the state and who are mere agents of political parties which give them the ticket.

The Lok Sabha’s ethos is all-India in character. Sometimes, even a debate on incidents in a state is ruled out in the House because it has many other things on its plate. The Rajya Sabha is better qualified for issues relating to the states. But when the link of its members has been severed from the state, except for election purposes, they may not have the understanding of its problems, leave aside the commitment.

By deleting the domicile clause, the government has made it technically possible for a political party, if it can manage or have the numbers, to fill the entire Rajya Sabha from one state. In any case, members from a particular state can return to the Rajya Sabha without any limit because they do not have to normally living in the state from where they are elected. True, political parties were already circumventing the domicile clause by giving wrong rent receipts and bogus ration cards to prove on paper a member’s residence. A study of the Rajya Sabha membership for half a century, from 1952 to 2002, reveals that five per cent of the elected Rajya Sabha members did not belong to the state when they were elected. This percentage increased to nine after 1989. But still it shows some hesitation on the part of political parties to get members from outside. Now the gates have been thrown wide open.

The National Commission on the review of the working of the Constitution did make a reference to this issue. It was sitting when the legislation to do away with the domiciliary qualification was placed before Parliament. The Commission said that any such move would adversely affect the federal character of the Council of States and favoured the retention of a residence qualification. Even now, it may be useful to consider the option of redesigning the structure and membership of the Rajya Sabha on the lines of the German Bundesrat. This would make the Upper House a truly “federal chamber” that mirrors the interests of the states and protects their rights at the national level.

Why the BJP and Congress joined hands to effect the amendment is obvious. They wanted to reduce the Rajya Sabha to a dumping ground where they could have anyone, even those defeated by the people. Both Finance Minister Jaswant Singh and the BJP’s general secretary, Pramod Mahajan, were defeated in the last Lok Sabha election. The party brought them to the Rajya Sabha in indecent haste. I was then in the Rajya Sabha. The explanation whispered around was that “Atalji wanted them badly in the government”. Both were sworn in as ministers.

I think the system can take these things in its stride. But what it cannot is the challenge to the basic structure of the Constitution. With the deletion of residence qualification, the Council of States may become a House of non-state members, something that was far removed from what the framers of the Constitution wanted.