No House rules?

The recent Rajya Sabha elections in Jharkhand threw up larger questions. What does 8216;representation8217; mean in Rajya Sabha? And, what constitutes a free and fair election to the Upper House?

By all accounts, the recently concluded Rajya Sabha elections in Jharkhand have added a new dimension to the classification of political systems 8212; thaila shahi, referring to the use of money power in securing democratic outcomes. A review of leading dailies from the region, from the filing of nominations to conclusion of elections, highlight the issue of the logic of the market applying to the Vidhan Sabha, a House that is already in a shadow in Jharkhand, with its fragmented party structure and tentative power sharing, allowing a handful of independents to rule the state.

In the 81-member assembly, no party except the BJP, was in a position to gather the necessary 28 first preference votes to clear the hurdle in the first round. For the second seat, and remaining 53 MLAs, there were three strong contenders, all outsiders to the state. Of these three, two were independent candidates, including an executive of a leading corporate house. The entry of independents and 8216;outsiders8217; in the fragile political situation has set off speculation about the analogy of the market operating in a distinguished political arena.

Jagran, for instance, announced that the coming in of two strong independent candidates had increased the 8216;market rate of MLAs8217;. The Ranchi Express declared the legislators 8216;sold8217; at the nomination stage itself. The spokesman of a political party, which petitioned the EC to ensure free and fair elections, described it as the 8216;culture of the briefcase which had brought shame on the land of Birsa Munda8217;.

The final tally of who voted where brought to the fore cross-voting in JMM against its own official candidates, and the final results for the second seat were announced on the basis of a narrow lead from second preference votes.

Amid all this, the character of the Rajya Sabha, visualised as a deliberative house, where experienced public figures get access without going through the din and bustle of a general election, has received a setback. An impromptu coalition of Jharkhand intellectuals, industrialists, and researchers, led by prominent intellectual Ram Dayal Munda, led a protest march to the Raj Bhavan deploring the use of money power.

The deeper issues that arise can be analysed at two levels. The first is revealed by aggregating voices from the state that focus on 8216;outsiders8217; representing Jharkhand. While residence in the state may not be a legal requirement, the question of what constitutes an effective representation of state interests in the RS is still unanswered. The second is the more generic issue of what constitutes a free and fair RS election.

The issue of 8216;outsiders8217; contesting from Jharkhand has been articulated vociferously in the local context. Newspapers circulated lists of all the outsiders who have managed RS nominations from the state. The populist but thought-provoking questions asked were: why is Jharkhand a favourite hunting ground for outsiders? Is there a perception that legislators here are more tradable commodities? The latter view drew momentum from the infamous case of the bribing of JMM MPs to save the Narasimha Rao government in 1993.

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In law, as it stands today, there is no bar on 8216;outsiders8217; to the state representing it in the Rajya Sabha. The Representation of People8217;s RP Act from 1951-2003 made residence in the state a necessary qualification for RS membership. The Representation of People8217;s Amendment Act 40 of 2003, deleted this requirement of 8216;domicile8217; in the state, a change that was upheld by the Supreme Court in 2006 in the Kuldeep Nayar versus Union of India case.

The court ruled that unlike in the US, the requirement of domicile was not fundamental to the structure of Indian 8216;federalism8217;; it was only a matter for Parliament to qualify or define from time to time. Ground realities of politics, however, suggest that the requirement of domicile provided a route of linking the RS to state interests, albeit a feeble one. The need perhaps was to strengthen, or clearly outline the link between the membership of the RS and its origins in the states, rather than deleting it without a clear alternative plan.

In the same case, two arguments of the counsel for the Union, supporting the deletion of residence requirement, and justifying the amendment, merit consideration in view of the current political situation. First, 8216;the members of the legislative assembly are in the best situation to decide who should represent them.8217; It must be remembered that the MLAs are exercising their judgement as authorised representatives of the people. What are the institutional options when the MLAs exercise their ballot on incentives other than political? Second, the amendment was thought necessary to secure 8216;representation of unrepresented states8217;. None of the three independents hailed from unrepresented states, nor were they the bearers of any exclusive agenda of better representing Jharkhand8217;s interests.

The substantive issue is the need for deliberation by the Parliament itself, of codifying norms with respect to 8216;free and fair elections8217; in the RS. What are 8216;unfair practices8217; in such elections? Under what circumstances can an RS election be countermanded? While the Anti-Defection Law has been able to conclusively handle political immorality in the post-election scenario, it has only a tangential capacity to deter RS election malpractice. It is popular perception that must form the basis for what is fair, rather than citing legal clemency, and closing one8217;s eyes to the actual dynamics of thaila shahi as it operates.

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The need is to understand how it operates rather than deny that it does lest the House emerge spotted. If the Republic does not take on this task, the winners will be individual candidates, and the losers the people of India.

The writer, currently a research scholar at the London School of Economics and Political Science, teaches political science at Gargi College, Delhi University m.priyamlse.ac.uk