An amendment challenged

Is the removal of the domicile requirement for candidates and provision for secret ballot for elections to the Rajya Sabha in contravention of the Constitution? The Supreme Court will decide after the ongoing election process.

in New Delhi

ON June 9, a Supreme Court Bench comprising Justices K.G. Balakrishnan and P. Venkatarama Reddi vacated the stay imposed by another Bench on June 4 on the Election Commission (E.C.) proceeding with elections to fill the vacancies in the Rajya Sabha. On the forenoon of June 4, the E.C. had set the process for the elections in motion through the issue of a presidential notification. Yet the Vacation Bench, comprising Justices Ruma Pal and B.N. Agrawal passed the order on a petition filed by former member of the Rajya Sabha and columnist Kuldip Nayar challenging the amendments made to the Representation of the People Act, 1951. The amendments dispensed with the requirement that the State from where a candidate sought election to the Upper House was his or her domicile and also the system of secret ballot.

The interim order passed by the Bench on June 4 was apparently flawed because under Article 329(b) of the Constitution, the court should not have interfered with the election process that had already commenced. The clause excludes the jurisdiction of courts to entertain any matter relating to elections, which can be questioned only by an election petition under the law after the completion of the election process. On June 9, the two-Judge Bench admitted the "flaw" thus: "We do not think that there are compelling reasons to stop the election process at this stage; especially in view of the presumption of constitutionality of the impugned provisions" (of the Representation of People (Amendment) Act, which has been challenged). The Bench admitted the writ petitions filed by Kuldip Nayar and former Member of Lok Sabha Inder Jit for detailed consideration after the court's vacation in July.

The Representation of People (Amendment) Act, 2003 (No. 40 of 2003) amended Section 3 of the Representation of People Act by substituting the words "in India" in the place of "in that State or territory". The Act introduced a provision in Section 59 to the effect that "the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot". Kuldip Nayar, in his petition, challenged the first part of the amendment as affecting the federal features of the Constitution and the second part for compromising free and fair elections. He argued that both features formed crucial aspects of the Constitution, which, according to the Supreme Court, was beyond the purview of Parliament's amending powers.

Another petition, filed by Inder Jit, challenged the first part of the amendment. He argued in his petition that the nomenclature itself ("Council of States") was a reflection of the federal character of the Rajya Sabha, and that a candidate by being elected merely by the members of the State Legislative Assembly did not ipso facto become the true representative of that State - unless the candidate was in living contact with areas within the State. "A representative not ordinarily resident and not belonging to the State concerned cannot effectively represent the interest of the State as he would not be aware of the living, ground realities of the State," he contended.

The amendment, supported by all parties barring the Left, used as its justification the "fact" that there were "numerous" instances where persons who were normally not residing in a particular State had got themselves registered as voters in that State, simply to contest an election to the Council of States. The Election Commission also felt that a precise definition of "ordinarily resident" was very difficult, and emphasised that it was for the political parties, acting through Parliament, to arrive at the best possible solution.

However, the figures made available to the Parliamentary Standing Committee on Home Affairs showed that during the period from 1988 to 1993, only 10 per cent of the members of the Rajya Sabha were elected from outside their States of residence - that is, this 10 per cent were ordinarily residents of State A whereas they were elected from State B on a questionable declaration that they were in fact ordinarily resident of State B. It has been found that there are now 18 Rajya Sabha members who hail from States other than the one from which they were elected. The amendment, it is feared, would make it easier for political parties to open the floodgates for "outsiders" to get elected to the Rajya Sabha, and thus change its very character as the Council of States.

In the past, several members of the Rajya Sabha have found it expedient to circumvent the domicile requirement to get elected from States they did not belong to. Prime Minister Manmohan Singh has been a member of the Rajya Sabha from Assam, after having acquired a residential address in Guwahati to fulfil the domicile requirement. Other prominent Congress leaders guilty of violating the spirit of this domicile requirement include Union Law Minister H.R. Bhardwaj and Science and Technology Minister Kapil Sibal. The guilty Bharatiya Janata Party leaders include former Deputy Prime Minister L.K. Advani, former Law Minister Arun Jaitley and former Minister of State O. Rajagopal.

Inder Jit pointed out in his petition that representatives of the States had on innumerable occasions brought to the attention of the House and the treasury benches matters of concern in respect of the States in which they were ordinarily resident, whereas it was not the case with members hailing from other States.

The Bill preceding the enactment of the Representation of People (Amendment) Act (Act 40 of 2003) was referred to the Parliamentary Standing Committee on Home Affairs, chaired by Pranab Mukherjee, the present Defence Minister. The committee made two main points in its 90th Report presented to Parliament on July 23, 2003. First, it stated that there was a "lack of consensus" on the question of removal of the residential qualification. Second, it stated that "in view of the divergent perceptions in the Committee on the subject matter of the Bill", it was "of the considered view that the government should explore the possibility of evolving a consensus on the issue before piloting the Bill in Parliament".

However, as Inder Jit points out, no such effort was made to forge a consensus during the intervening period of almost nine months, from July 23, 2002 to April 8, 2003, when the Bill was taken up for discussion in the Rajya Sabha. The Bill, which concerned the Rajya Sabha vitally, was discussed by the House for not more than two hours and seven minutes. The Lok Sabha passed the Bill on August 18, 2003, despite strong protests from leading members of the House, including the present Speaker Somnath Chatterjee.

The object and reasons of the Amending Act show that the provision relating to open ballot in the election has its origins in the report presented by the Ethics Committee of Parliament in 1998, wherein it had recommended the examination of the issue. Allegations of money power made in the media in respect to biennial elections to the Council of States in March-April 2000 also gave rise to the Act, the government had claimed then. The Amendment, however, has led to criticism that it legitimises corruption by party bosses rather than individual candidates, as was the alleged practice earlier.

The proponents of open ballot to the elections argued in the Select Committee of Parliament that for electors like Members of the Legislative Assemblies, there was no rationale for secrecy, which was basically meant for ordinary voters in the polling booth for the general elections. The important thing was to ensure "purity of election", it was pointed out. The Legislative Department contended before the Committee that the system of open ballot would ensure purity of election, as political parties would be in a position to take appropriate disciplinary action against legislators who cross-voted by defying party whip.

The then Attorney-General, Soli J. Sorabjee, had opined to the committee that the open ballot scheme was permissible constitutionally as "the system of voting by secret ballot is neither an indispensable concomitant nor a sine qua non of free and fair elections".

With the Supreme Court slated to pronounce on the constitutionality of these amendments in the process of Rajya Sabha elections, the legitimacy of the current elections can be called into question if the petitioners win their case. However, it is a moot question whether all the 65 elected candidates would lose their seats in the Rajya Sabha if the Supreme Court declares the entire Amendment Act unconstitutional. Legal experts point out that the court could not unseat these candidates without making them parties to the case. As two biennial elections to the Rajya Sabha have been held after the enactment of the amendment, it would be unfair to give retrospective effect to the court's ruling so that it applies only to the victorious candidates in this election, they say.

Whatever the outcome of the case in the Supreme Court, those emerging victorious in this round of Rajya Sabha elections, are sure to find in the June 9 interim order of the court a Damocle's sword hanging over their yet-to-begin tenures.