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Wednesday, September 22, 2021

Who belongs to the House, who doesn’t

The apex court’s ruling against a state domicile requirement for a Rajya Sabha seat must be challenged

Written by Kuldip Nayar |
Updated: May 19, 2016 12:35:16 am
rajya sabha, rajya sabha membership, rajya sabha nomination, rajya sabha domicile, supreme court, supreme court on rajya sabha membership New Delhi: A view of the Rajya Sabha as Congress Members walk out of the House, in New Delhi on Wednesday. PTI Photo / TV GRAB (PTI5_4_2016_000240B)

Several members of the Rajya Sabha do not strictly qualify to sit in the House. They are “outsiders”. While laying down the qualifications for a Rajya Sabha member, the Constitution framers said that the person should “ordinarily” be a resident of the state from where she seeks election.

This restriction did not suit political parties. They felt handicapped when they wanted a particular person to be a member of Parliament, but could not muster enough strength in the concerned state assembly to get the nominee returned.

All parties joined hands to amend the law and substituted the word, India, in place of the state. This went against the federal structure which the Constitution advocated. Yet, the parties were not ruffled and went ahead with the amendment. The alteration was challenged in the Supreme Court, which, in its wisdom, upheld the amendment. That is the law today, although it goes against the basic structure of the Constitution. The SC saw no merit in the plea that an 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 of debate was not who could be returned to the House, but who should represent the state. Obviously, a person who normally lives in the state is the one because he is familiar with the state’s ethos, comprising culture, language and the like.

Take the case of Karnataka and Tamil Nadu. The two states have a running battle over the division of water from the Cauvery river. 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, or vice-versa? 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 the basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections to the Rajya Sabha from the states concerned is essential”. The government, however, never implemented the recommendation.

The SC’s argument, that a federation is not a territory, is most untenable. A federation is a formation of separate states, which continue to retain control over their own affairs but still authorise the federation to act on their behalf. The entire justification of a state goes if it does not have in view the interests of its own people, the sons of the soil. Agreed that “the residence is neither a constitutional factor nor a constitutional requirement,” but who forms the state? Most certainly, the answer is not those who are not even ordinarily residents. The SC 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 be from one state and possibly from one city. Surely, the SC 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 a “revising House” — not realising that it would bring down the House’s status and stature. The Rajya Sabha is an independent House, with its own duties and obligations. The role is not secondary. All bills, except money bills, can be introduced in the Rajya Sabha as well.

If the SC’s logic is taken further, it means that the Lok Sabha is also a revis-ing House if and when the bill is introduced in the Rajya Sabha. In fact, the matters concerning the states originate in the Raj-ya Sabha, and all questions relating to the Central services are initiated in the Rajya Sabha.

I express my inability to make out what the SC 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 SC judgment has widely opened the doors of the Rajya Sabha to money bags, the mafia and the like. The House has become a hunting ground for those who have clout or deep pockets. Political bosses bring into the House their favourites from any state as long as they have the relevant strength. The Constitution lays down that only 12 members will be nominated to the Rajya Sabha. Now the whole House is nominated by political masters.

The Supreme Court judgment has given full powers to a political party to nominate a candidate. Any violation of the whip invalidates the vote cast. Consequently, there cannot be any “conscience vote”. The ballot paper, with the name of the candidate, has to be shown to the party leader before it is put in the box. This procedure has violated the very basic structure of the Constitution, which protects a member’s right to vote in the way he or she likes. The judgment needs to be challenged.


The writer is a senior political commentator

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