ndsharma's blog

Why call it Rajya Sabha?

Posted on: February 5, 2017


Set up on April 3, 1952, the Council of States, or the Upper House of Parliament, was envisaged by the authors of the Constitution as a body comprising representatives of the States. In August 1954, it came to be known as Rajya Sabha. This House is not subject to dissolution. One-third of its members retire every two years and the vacancies are filled by holding fresh elections. The members of the State legislatures constitute the electoral college. The Schedule IV of the Constitution had allotted the number of seats (in Rajya Sabha) to each State/Union Territory.

The origin of Rajya Sabha can be traced back to 1919, when in pursuance to the Government of India Act, 1919, a second chamber known as the Council of States was created. This Council of States, comprising mostly nominated members was a deformed version of second chamber without reflecting true federal features. The Council continued to function till India became independent.

Section 3 of the Representation of People Act had ordained that a candidate seeking a seat in Rajya Sabha should primarily be resident of the State from which he/she was trying to get elected. The idea was to make use, in the highest law-making body of the country, of the learning, intelligence and experience of such persons who, for some reason, could not or would not contest the election to the House of the People or Lok Sabha but who the members of the State legislature in their collective wisdom considered as eminently suitable to represent the State in Parliament.

Rajya Sabha may not enjoy all the powers that Lok Sabha does. It has, however, special powers to declare that it is necessary and expedient in the national interest that Parliament may make laws with respect to a matter in the State List or to create by law one or more all-India services common to the Union and the States. In Dr Ambedkar’s words, the Upper Chamber represents the States and, therefore, its resolution would be tantamount to an authority given by the States.

All went well for about two decades. Then this institution, too, fell prey to the manipulations of the power brokers. The political parties, having requisite number of members in a State legislature, started sending to Rajya Sabha people for reasons other than their intelligence or commitment to public service and even persons from other States.  The domicile clause was flouted by manipulating the law — prospective candidate was made to register himself or herself as a voter in the State or buy or rent a House there. This was a clear violation of the law. So what? Wasn’t every political party doing it?

When these violations ceased to be occasional aberrations and became endemic, some public-spirited persons like Kuldip Nayar sought judicial intervention to put an end to this malpractice. As the things started getting hot for the beneficiaries of the malpractices, and they included top leaders of political parties, they, in their “collective wisdom”, decided to legitimise the malpractices by amending the Representation of People Act. It was done by the NDA government in August 2003. The amended Act made the contest for Rajya Sabha open for a person from any state.

The government had, while introducing the Bill in the two Houses of Parliament, claimed that waiving the residential status of candidates contesting Rajya Sabha polls would not alter the character of the Council of States. Predictably, the Congress members, too, had found nothing wrong in allowing candidates from contesting the Rajya Sabha poll from any state “as this was the case with the election to the Lok Sabha poll as well”.

Power brokers

The constitutional experts were, however, aghast at the move. Doubts were raised on the legitimacy of the amendment, because by one stroke, Parliament had sought to change the federal character of Rajya Sabha. Fali S. Nariman, arguing in the Supreme Court against the amendment, felt that the amendment would open the floodgates to big money bag owners and power brokers to descend upon the small people of the states and get elected to the Upper House. He warned the government against making Rajya Sabha “a stock exchange for moneybag holders from outside.” He failed to understand what was the real reason for effecting such a change in the law that amounted to changing the basic structure of the Constitution. The consequences of the changes in the law would be grave, he said, because there are nine states which send only one member each to Rajya Sabha. What would happen about the representation of these states in the House if all nine members are from outside, he asked.

Against the expectations of those who believed the basic structure of the Constitution to be inviolable, a Constitution Bench of the apex court put its seal in August 2006 on the two amendments in the Representation of People Act, opening the territory of every State for contesting the Rajya Sabha elections by removing the condition of domicile. (The other amendment made the voting for Rajya Sabha through open ballot).

A five-judge Constitution Bench, headed by Chief Justice Y.K Sabharwal and comprising Justices K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and M. P.K. Balasubramanyan upheld the constitutional validity of the amendments with the observation that “residence or domicile are not the essential ingredients of the structure and the composition of the Upper House and that residence is neither a constant factor, nor a constitutional requirement but a matter of qualification prescribed by Parliament in exercise of its power under Article 64.”

Now that the condition of domicile for being elected to Rajya Sabha has been removed through an amendment and the amendment has been upheld by the Supreme Court, Rajya Sabha or the Council of States has ceased to be a body composed of the representatives of the States. Any one now can contest for Rajya Sabha from anywhere in the country. Why then call it Rajya Sabha or the Council of the States still? More importantly, it now represents neither the States nor the people but has become a rear door for entering Parliament for those who have the money and know how to “invest” it. The open ballot has robbed the Rajya Sabha election of whatever sanctity it had earlier. Why not abolish it altogether!


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