People's Democracy

A Retrograde Measure Awaiting Correction

 Harkishan Singh Surjeet

THE Supreme Court's intervention in the procedure of election of Rajya Sabha members has highlighted the danger to the federal character of the Constitution caused by the retrograde enactment brought in by the BJP-led NDA government in this regard. The amendment militated against the very purpose that guided the Constituent Assembly to create the Council of States.

The bill passed by the BJP-led government in August 2003, fundamentally changes the method of election of members to the Rajya Sabha while also bringing about a basic change in the character of the council of states. The criteria for becoming a candidate to contest the Rajya Sabha election was changed.  The provision that a candidate should be a domicile of the state concerned from which he is seeking election was dispensed off with. The legislation made any voter enrolled in any part of the country eligible to contest for the Rajya Sabha. It is a perversion of the Constitutional and federal principle. The domicile requirement being scrapped, one will witness an upsurge in the trend of states being represented in the Rajya Sabha by outsiders. Equally atrocious was the introduction of the open ballot system. The sanctity of the secret ballot was done away with.

MAKING A MOCKERY

It was no surprise that barring the Left all major political parties were in favour of the legislation. The amendment actually legitimised a prevalent practice amongst these parties. Many Congress stalwarts who were either rejected by the people or did not want to face them, found it convenient to enter parliament through the Rajya Sabha route. Further, when either the numbers in a legislative assembly did not favour a particular party for getting its candidate elected to the Rajya Sabha or when vacancies from a particular state did not exist, the whole election exercise was made a mockery. With total disdain to democratic norms and resort to subterfuge the domicile requirement was met through sham proofs. Even the BJP president, M Venkaiah Naidu, ordinarily a resident of Andhra Pradesh was elected to the Rajya Sabha from Karnataka. O Rajagopal who could not dream of making it to parliament from Kerala got himself elected to the Rajya Sabha from Madhya Pradesh. Even the then law minister Arun Jaitley who piloted the bill himself entered the house from a state other than his own.

Before 1989 only three per cent of the members to the Rajya Sabha were elected from outside their states. In 1989, this percentage increased to nine. But from the 1990s, nearly one out of every 10 members elected from a particular state has not belonged to that state. While technically the member may fulfil the domicile requirement through sham proofs, in reality, he or she has hailed from some other state.

The secret ballot has been given up because of the inability of some parties to exercise minimum discipline over their MLAs. Floor crossing and bribery had become rampant among the bourgeois parties with money bags playing a not too secret role. Barring the Left, all other major parties were afflicted by this disease. No wonder they were all united in prescribing a remedy that kills the patient alongwith the disease. Inability to exercise control over their legislators cannot be an excuse for doing away with the sacredness of secret ballot.

It will also compromise the Election Commission’s reputation for independence. It will be impossible for the Commission to hold a free and fair election when it comes to the Rajya Sabha. The voter will be unable to exercise his right freely and without fear.

Union minister Kapil Sibal, then an MP, participating in the discussion on the amendment observed: “The open ballot is for your party to know about it and your party should not be left in the lurch by somebody using secrecy of voting and selling his vote to somebody else.” That the very electoral process was being undermined did not seem to be the concern of either the BJP or the Congress. As for how exactly the open ballot system would work, Jaitley promised to consult the Election Commission before framing rules in this regard.

WEAKENING FEDERAL SYSTEM

The Constituent Assembly, reflecting the aspirations of different nationalities, cultural and linguistic identities, saw in the creation of the Upper House a means to strengthen the federal system. The Hindu communalists right from the Jan Sangh days were opposed to the federal character of the State and always stood for a unitary concept.

The Constituent Assembly conceived the second chamber of the "Union of States" to represent the “units” i.e. the states. The entire scheme of election of members to the council of states was to be done by elected MLAs of that state. The dominant desire amongst the framers of the Constitution was to forge social and political unity of the country through a real system of direct representation based on universal suffrage. The debate in the Constituent Assembly kept in view a federal structure which would reflect the diversity that the different states represented. This concept was arrived after lengthy debates and scrutinising various models and options available before it. It was after such an exercise that Constitutional federalism was opted for that would reflect the political diversities, the federal character as also the complexion of the state legislatures.

Even the National Commission to Review the Working of the Constitution had expressed advice to the contrary. It noted that: "In order to maintain the basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections... from the concerned State is essential."

The Supreme Court has once again stepped in to set right an anomaly created by the BJP with the support of all major political parties excluding the Left by acting on the petition filed by former Rajya Sabha MP and noted columnist Kuldip Nayyar against the amendment.

It is only the CPI(M) and the Left as a whole that has been vociferous in its opposition to this amendment. It goes to the credit of the Left that it has not sent a single representative from any other state to the Rajya Sabha other than from the state to which he/she belonged.