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REMOVAL OF DOMICILE REQUIREMENT FOR RAJYA SABHA: MAKING THE REPRESENTATIVE NATURE OF BODY REDUNDANT

By

Souranil Mondal, IV year of B.A.,LL.B.(Hons.) from West Bengal National University of Juridical Sciences


Introduction

Before 2003, Section 3 of the Representation of the People Act, 1951 read,

3. Qualification for membership of the Council of States. — A person shall not be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or Territory.[i]


This implied that for a person to qualify to be a member of the Rajya Sabha, they must be a registered voter in the State or Union Territory from where they are contesting. This requirement was subsequently removed with the Representation of the People (Amendment) Act, 2003,[ii] which replaced the words “in that State or territory” with “in India”. This meant anyone from anywhere in the country became eligible to contest for a Rajya Sabha seat from any State. This amendment was challenged by Kuldip Nayar.[iii] The issues raised by the petitioner were that first, it violated the constitutional provisions and second, that it violated the principle of federalism. The Supreme Court rejected these arguments and upheld the amendment as constitutional.



Superficially, the removal of the domicile requirement appears to be eroding at the federal relations in India, as the Rajya Sabha, or the Council of States is similar to the Senate in the United States of America. It was meant to give the States a representation at the central level.[iv] The powers bestowed upon the Rajya Sabha are also essential for the balance between the Centre and the States. Rajya Sabha can declare any entry under the Second List (State List) under the Seventh Schedule to be of national importance, making the Parliament eligible to make laws on subjects of State List.[v] It also has the power to create All India Services which will be for the Union and States, both.[vi]


Purpose and Powers of Rajya Sabha

To understand the implications of the domicile requirement, it is imperative to understand the role played by the Rajya Sabha, and the power it holds. An analysis of the powers held by this house reveals that Rajya Sabha neither completely powerless like the House of Lords in the UK nor is as powerful as the Senate in the USA. It is intermediary between the two.


Council of States was created to facilitate further debate on the bills passed by the Lok Sabha in haste, and also to act as a revising house to check on any lacunae in bills. Leaders like S Radhakrishnan and GopalaswamyAyyangar were in support of this view of the review chamber role of the Rajya Sabha. Whereas, other leaders like KT Shah and Loknath Mishra, wanted a role similar to the US Senate, with equal representation from each state giving it the true nature of the Council of States.[vii] But the final purpose and role of Rajya Sabha were of a review chamber, in the guise of a Council of States, for practical reasons. Its role as Council of States can be justified based on certain special powers that the constitution endows upon the House.


Under Article 249, only Rajya Sabha has the power to declare any matter under the State List to be of national importance. This makes the Parliament eligible to make laws on such subjects, taking away the power of the states. This has a direct implication on the federal structure as the power of the State assembly to legislate can be taken away under this provision by the Rajya Sabha.

Another power of the Rajya Sabha is to create all-India service for the whole of India, at Union as well as State level, under Article 312.[viii] Such all-India services have been said to include the Indian Administrative Services and Indian Police Services, meaning the bureaucratic executive of the Union and the States. This power implies that the Parliament can have the power to regulate the functioning of the State bureaucratic executive.


The power to proclaim an emergency in a State also rests solely with the Rajya Sabha, if the Lok Sabha is dissolved.[ix] This is because the Rajya Sabha is a permanent house and cannot be dissolved, therefore always remains to function, even if the Lok Sabha has been dissolved by the President. This means that Rajya Sabha can unilaterally impose the President's rule over any State. In practicality, it means that after the dissolution of the Lok Sabha, the party in power in the Rajya Sabha can impose rule in states.


The role of the upper house in a bicameral system around the globe is of representation of states, such as the Senate in the US or the House of Lords in the UK. But this role has changed recently. The US Senate has taken a more national role than discussing state concerns. Certain countries like Afghanistan have an Upper House, called House of Elders, which acts as a guiding chamber for the lower house. Therefore, the bicameral system has moved from the Upper House representing the states to more of a revision house at the centre level.


Practical Implications of the Domicile Requirement

The requirement of “ordinary residence” for the membership of Rajya Sabha was made redundant very early. There were numerous instances where political parties contested non-resident candidates, such as when Manmohan Singh contested Rajya Sabha elections from Assam in 1995. The fault lies on other parties as well, such as LK Advani, who was a Rajya Sabha member from Gujarat from 1970 to 1988 and then till 1994 from Madhya Pradesh. Such instances were quite prevalent even before the 2003 amendment of the Representation of the People Act. This bypass of Section 3 was achieved by merely showing some minor proof of residence such as the LPG connection documents in the name of Pranab Mukherjee when his candidature from Gujarat was challenged.


This was something that was recognised by various political leaders such as Ghulam Nabi Azad, who even asked for the removal of the domicile requirement saying, “There should be a constitutional amendment. A person should be free to contest the Rajya Sabha election from anywhere in the country, as is the case in the Lok Sabha. The present law encourages hypocrisy.[x]


This points to the fact that the domicile requirement was nothing but a condition on paper, which had become ineffective long before its ‘demise’. Thus, in reality, the implication of the 2003 amendment, to the extent of removal of domicile requirement, was void.


The question of whether the domicile requirement was needed is more important. As discussed in the previous section, the bicameral system of parliament was developed around the globe to give states a voice at the centre level, instilling the principle of federalism in the country. Even in India, Rajya Sabha, or the Council of States, was proposed to have equal representation from all states, just like the US Senate, but this proposal was rejected for the more pragmatic role of a revision chamber in the Parliament. As the stance was taken by the Supreme Court in Kuldip Nayar v Union of India,[xi] a State representative need not necessarily be from the State. He is the one which the State has, either directly or indirectly, elected to represent them at the central level.


Furthermore, Rajya Sabha cannot be said to a true Council of States, as it lacks the equal representation from all States. It is based on proportional representation, based on people, and therefore, smaller states have lesser representation at Union level. Thus, if the Rajya Sabha is given a true nature of the Council of States, it will promote inequality amongst the states, rather than be a safe-keeper of federalism.


Hence, the proposition that domicile should be compulsory for Rajya Sabha membership has always been a moot point because Rajya Sabha, a revision chamber, guided as a Council of States.


Conclusion

The requirement of ‘ordinary residence’ for the membership of Rajya Sabha was made redundant in practice, as seen in many instances before 2003, where candidates contested for Rajya Sabha elections from States they didn’t belong to or had never stayed there. Therefore, the removal of the domicile requirement had no practical effects on the political scenario in India.


The idea that this dilutes the federal structure of India is inaccurate as Rajya Sabha was never envisioned as the Council of States in its truest form. It was a revision chamber for the bills passed by the lower house, with veterans to review the work of Lok Sabha before its actual fruition. This is also in line with the changing role of the bicameral parliaments around the globe.


Therefore, the amendment of Section 3 of the Representation of the People Act is completely in line with the Constitution and valid. It does not affect the role or purpose of the Rajya Sabha in any aspect, as Rajya Sabha was never meant to be a house for equal representation of states.

[[i]] Section 3 of The Representation of the People Act, 1951.

[[ii]]Section 2 of The Representation of the People Act, 1951.

[[iii]]Kuldip Nayar v Union of India, (2006) 7 SCC 1.

[[iv]] Rajya Sabha: An Introduction, Parliament of India, National Portal of India

[[v]] Article 249, The Constitution of India, 1950.

[[vi]] Article 312, The Constitution of India, 1950.

[[vii]] The Hindu, Secularism and the State, Feb 05 2016, (last accessed 27 November 2020).

[[viii]] Article 312, The Constitution of India, 1950.

[[ix]] Article 356(3), The Constitution of India, 1950.

[[x]] India Today, Politicians file false residence papers to bag Rajya Sabha seats, July 25 2013, (last Accessed 27 November 2020)

[[xi]] Kuldip Nayar v Union of India, (2006) 7 SCC 1.