Been there, done that

Celebration time for at least some members of parliament. No, they do not belong to the group of celebrities who were involved in the imbroglio over office of profit. They are the other lot, those elected to the Rajya Sabha from states where they are not ‘ordinarily resident’. The Representation of the People Act, 1950, had laid down a specific condition concerning eligibility for election to the Rajya Sabha: to be a member of the house from a state, one must be ordinarily resident in the state. Over the decades, this condition was more honoured in its breach by political parties, particularly by the Indian National Congress. They made a habit of sending to the Rajya Sabha someone from Karnataka by getting him elected from Orissa, or a Bengali rooted in Burdwan nominated from Gujarat, or a pucca Punjabi resident in Patiala by offering him a seat from Assam.

Outrageous stratagems were deployed to sidestep the legal stipulation. To establish their residential eligibility, the favoured persons were, for instance, advised to buy a cowshed or open a bank account or start a laundry in the state from where they were proposed to be elected to the Rajya Sabha. Such subterfuges attracted large-scale public ridicule; the political parties were not deterred thereby. There was, however, the lurking danger of an unfavourable judicial verdict: the judiciary could prove to be nitpicking, and might not always accept at face value the filed proof of residential status. A concordat reached among the political parties therefore arranged to amend the Representation of the People Act and get rid of the nuisance of obligatory permanent residence in a state for being elected to the Rajya Sabha from that state.

A writ petition was posted with the Supreme Court challenging the validity of this amendment. The nation’s highest judiciary took a while to reach a decision on the matter. They have finally made up their mind and ordained that the amendment is quite in order: for representing a state in the Rajya Sabha, one need not be ordinarily resident of that state.

Until and unless this verdict is reversed, it will remain the law of the land. As law-abiding citizens, we must accordingly live with the incongruity of a Malayali habitually resident in Kozhikode representing Manipur in the Rajya Sabha or a Kashmiri permanently residing in Gulmarg getting elected to the house from Tamil Nadu. Such liberalized representation does not apparently detract from the federalism that characterizes the Union of India; the concept of federalism, in the judgment of the Supreme Court, is not ‘territory-related’.

Let us try to gauge the implications of the message the nation’s highest judiciary has conveyed. Yes, the architects of our Constitution have conceived India as a federal entity. But federalism, the Supreme Court suggests, is a matter of the mind. Notwithstanding my being a Maharashtrian based in Pune, as long as I feel within myself fully integrated with the natives of Mizoram and represent them in the Rajya Sabha, India’s federal structure would remain unimpaired; the fact that I might not have ever visited Mizoram prior to my getting elected to the Rajya Sabha from the state — or even after getting elected — should not stand in the way of my representing the state.

Some difficulties nonetheless persist. In drawing the blueprint of the Rajya Sabha as a second chamber, the model the authors of our Constitution broadly followed was that of the Senate in the United States of America. One must be a registered voter in a particular state to be eligible to stand for election to the US Senate from that state; it is inconceivable in the US for a person who is permanently resident in Massachusetts to get elected a senator from Hawaii or Alaska. To suggest that in our case too, all states should have equal representation in the Rajya Sabha would scandalize the country’s establishment. Such a suggestion, therefore, can be put in the cold storage. Even so, place yourself in the position of a citizen resident in a state like Tripura or Manipur. How would he sum up the situation if a carpetbagger from Delhi or Mumbai or Calcutta manoeuvres to get elected to the Rajya Sabha from this minor state without having the least knowledge of the problems it is afflicted with and even its language?

The Supreme Court is one hundred per cent right in asserting that the Rajya Sabha was not created for the purpose of discussing matters pertaining exclusively to the states. But the American Senate too was not created only to debate and take decisions concerning problems specific to the federating states. The US Constitution, however, clearly envisages that those representing individual states — even small states — must play a dominating role in the Senate. This is the reason why all states have equal representation in the house; big states like New York, California and Texas each elect two senators; even puny states like Maine and Hawaii each elect two senators.

Such equal representation ensures a situation where senators from minor and relatively backward states are as powerful and influential as senators from the biggest and richest states; the interests of minor states are in consequence adequately taken care of. The architects of our Constitution did not insist on equal representation of the states in the Rajya Sabha. They were keen, though, that problems of individual states, especially minor states, received adequate attention in the nation’s second chamber. Members who were permanently resident in a state would, it was felt, be qualified to articulate issues germane to that state.

The authors of our Constitution committed a basic error. They should have mentioned the stipulation about residential status in an article of the Constitution itself. Presumably, it was an oversight that they did not do so. The mistake was quickly realized. The Representation of the People Act was put into statute within months of the promulgation of the Constitution, and it incorporated the directive of permanent residence in a state being an essential qualification for election to the Rajya Sabha from that state. That was then thought to be enough.

Obviously, that was not enough. But consider this other datum. The principal architects of our Constitution were all very much alive in 1950. It was their unanimous decision to include in the Representation of the People Act the stipulation about residential status. While interpreting the provisions of the Constitution, should not, it can be humbly asked, the intent of its original authors receive some weightage in judicial pronouncements?

On the other hand, a substantial body of opinion does indeed take a dim view of the concept of states’ rights. They would forthrightly welcome the verdict of the Supreme Court. It is, in their view, an excellent thing that a member of the Rajya Sabha elected from a particular state need not at all belong to that state and could hail from any part of the country. Once this practice becomes established, national integration would, they believe, emerge as a living reality; Indians would then be able to extricate themselves from the sickening parochialism of a Marathi or a Gujarati or a Bengali or a Tamil or a Bihari identity; the Rajya Sabha’s composition, in that eventuality, would reflect the cosmos that is India.

Maybe such sentiments are worth their weight in gold or diamond. There is, however, a problem as far as the present discussion is concerned. The second chamber set up by the country’s Constitution is described in it as the Rajya Sabha —the Council of States — and not the Rashtra Sabha, the House of the Nation. Despite constituting for the present a corpus of the nation’s legal structure, the Supreme Court’s decision can therefore be considered only as tentative. The debate is bound to continue. It is entirely possible that ten or fifteen years hence, a fresh judgment by the nation’s highest judiciary would declare the verdict on the issue by the present Supreme Court as ultra vires of the Constitution.