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Friday, June 11, 2004


The Supreme Court’s interim order restraining the Election Commission from issuing a notification to fill 65 vacancies to the Rajya Sabha raised a controversy about the court’s jurisdiction. On the face of it, the SC’s order on Mr Kuldip Nayar’s petition is violative of Article 329(B) prohibiting intervention of courts in the conduct of elections. The Law Minister announced that the Union government is moving the Court to vacate this stay. Never before did a court intervene in the middle of an election, or stop an election. This healthy precedent will hopefully prevail. Democratic system derives its legitimacy, from regular and timely conduct of elections, and no authority should ever stall the electoral process except in extreme situation, and for the most transparent and universally acceptable reasons.

But the underlying issue is far more important, and deserves deeper analysis. This writer has pointed out earlier (ET, 26th April 2003 “Knee-jerk reaction to a complex crisis”) that the amendments to the Representation of the People Act, 1951 (RPA) enacted in 2003 are a less-than satisfactory response to a real problem. Earlier, only electors (a person not less than eighteen years of age on the qualifying date, and ordinarily resident in a constituency) in a State could represent the State in Rajya Sabha. But this amendment permitted any elector in India to contest for Rajya Sabha from any State. Also, through that enactment, a proviso was inserted in section 59 of the RPA to the effect that the votes in Rajya Sabha election “shall be given by open ballot”

Mr Kuldip Nayar’s contention is that federalism is a part of the “basic structure” of the Constitution, and the legal requirement of residence and registration as a voter in a State to represent that State in Rajya Sabha cannot therefore be done away with. In principle, this residential requirement seems quite reasonable.  But the Constitution does not impose any such qualification. Article 84(C) gives the Parliament the power to make a law to prescribe any qualifications for membership of either House. The elected members of Legislative Assembly of the State elect members of Rajya Sabha through a system of proportional representation by means of the single transferable vote. Election is an intensely political act, and the state legislators can be trusted to elect a person who, in their judgement, is most suitable to represent them and their State. There is no reason to fear that in the absence of residential requirement in the State, the State’s interests will not be properly represented in Parliament. If an elector from any part of the country can contest from any constituency and represent its people in the Lok Sabha, this same principle of representation should hold good for the Rajya member representing a State. While residential requirement is desirable, it is cannot be part of the “basic structure” of the Constitution, or integral to federal principle.

Even more objectionable is the amendment to provide for open ballot in Rajya Sabha election. This ‘open ballot’ requirement is a desperate attempt by parties to bring some discipline and ensure election of their candidates to the Rajya Sabha.  It is possible to contend that ‘open ballot’ is violative of an elector’s right to elect a representative. But it can be argued with equal strength that the MLA is a people’s representative, and people have a right to know how he voted in the House, or in an election in which he is the elector. Only a citizen has the privileges and rights which are inviolable, and an elected representative cannot claim privileges over the people whom he represents.

Surely, the Court will examine these tricky questions. But the two central issues which led to this amendment in 2003 are still valid. First, parties have a need to induct talented and credible members into parliament. Election to Lok Sabha has become very expensive. Given our single-member constituency-based election, the marginal vote that a candidate secures has become all-important. Our system does not guarantee the election of truly worthy, respected and competent persons. Dr Manmohan Singh’s loss in South Delhi in 1999 is a classic illustration of this genuine problem faced by parties and politicians. Similarly, a party may not have the strength required to get a prominent leader elected to Rajya Sabha from his state. Dr Karan Singh, Pranab Mukherjee, Arun Jaitley, Arun Shourie, Venkaiah Naidu and several others have been distinguished members of Rajya Sabha. Many of them could not be elected   to  Rajya  Sabha from  states  where  they ordinarily reside. Dr Manmohan Singh had to suffer the indignity of having to register himself as a voter in Assam, and face motivated criticism in order to be elected to Rajya Sabha.

Second, it is undeniable that many state legislators are seeking large sums of money to cast votes in a Rajya Sabha election. Often they demand money to vote for a candidate nominated by their own party. These are genuine problems faced by party leaderships in the real world of politics. Emphasis on technicalities will not address the real crisis.

We need to look at mechanisms to induct the best talent into legislatures without difficulty. Why is a Taslimuddin or Jayaprakash Narayan Yadav a more legitimate people’s representative than a Manmohan Singh or Arun Jaitley? Certainly election to the lower House imparts greater legitimacy in a democracy. But why should a concentrated pocket of support be more legitimate or valuable than nation-wide or state-wide support for a candidate or party?  As John Stuart Mill pointed out in his “Representative Government” in 1861, “the pure idea of democracy, according to its definition, is the government of the whole people by the whole people, equally represented”.  Democracy as practiced in India and a few former British colonies is the government of the “whole people by a mere majority of the people, exclusively represented”. The democracy must be “synonymous with the equality of all citizens, not “a government of privilege, in favour of the numerical majority, who alone possess practically any voice in the State”.

As long as representation is skewed in this manner, we will have these dilemmas unresolved.  We need to redefine victory in a democracy, change the nature of representation, encourage the best and brightest into politics, and rejuvenate our Republic.  Such bold reform, and not legal nitpicking, is the need of the hour.



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