More moral than legal

Let me begin from the beginning. Nearly two years ago _ I was still a member of the Rajya Sabha _ Parliament brought about an amendment to change the law on residential requirement for a Rajya Sabha member. The old law laid down that a member should ordinarily be living in the state from where the assembly returned him or her.

The new law did away with the residential qualification. The word, 'State', was deleted and 'India" was inserted in its place. What it really means is that anyone from any state assembly can be elected to the Rajya Sabha.

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The BJP-led government piloted the amendment. But the Congress and the BJP apparently came to an arrangement and decided to drop the residential requirement. The communists opposed the bill. So did a few independent members, including myself. But it was passed. The bill did one thing more: it changed the system of secret ballot into an open ballot. State assembly members were stopped from indicating their preference of secrecy, as was the practice before. They were henceforth legally required to show the ballot paper to the party's authorised agent before exercising their right.

My petition challenges both the points. Take the residential requirement first. This is essential if the Rajya Sabha has to stay as the house of the council of states, as spelled out in the constitution. How could an outsider represent the state, its feelings or aspirations? B.R. Ambedkar, father of the constitution, assured members_ former President R Venkataraman was one of them _ there was no doubt that the lower house was the house of the people and the upper house that of the states.

What Ambedkar and the Constituent Assembly members had in mind was a federal structure _ India was a combination of states where the Union would handle common affairs and the states, both regional and local. The constitution framers wanted to give enough weight to the states' say. Some even suggested that the number of seats for each state, big or small, should be equal on the lines of the US Senate. The suggestion was not accepted. The Constituent Assembly, however, emphasised the importance of the upper house in the affairs of the country. In the constitution itself the primacy of states was kept in mind. The Centre was an administrative point but could not ride roughshod over the federal structure _ the essence of the polity.

My plea is that when Parliament deleted the residential qualification for the Rajya Sabha member, it chipped away at the federal structure. The states' right to be represented in Parliament was forfeited. The constitution was wronged both in letter and in spirit. When the amendment bill was being discussed in Parliament, the National Commission on the Review of the Constitution was sitting. It warned the government against such legislation which, according to the Commission, would affect the concept of federalism. The government still went ahead.

As the law stands today, all the 250 Rajya Sabha members, excluding the 12 nominated members, can be elected from one state or, for that matter, one city. A few leaders from the Congress and the BJP have argued that the law to drop the residential qualification was the product of a consensus. But the law passed on the basis of a consensus does not become a right law. The question is moral. The nation's ethos is not a set of laws which political parties decide to pass on the basis of convenience. There is something called values. Once you trample upon them you cease to have distinction between right and wrong, moral and immoral.

True, the two major parties joined hands to have the new bill. This was because they were always hard put to have in Parliament the people who had either lost in elections or to be accommodated as ministers for their political clout. In fact, the parties have been circumventing the domicile clause by asking their members to submit wrong rent receipts and bogus ration cards to prove their residence in that particular state.

A study of the Rajya Sabha membership for half a century, from 1952 to 2002, reveals that five per cent of the Rajya Sabha members did not belong to the state when they were elected. This percentage increased to nine after 1989. It showed some hesitation on the part of political parties to get members elected from outside. The new law opens the floodgates. No doubt, when a bill is passed by Parliament and gets the President's assent, it becomes a law. But does it have any sanctity when it defeats the basic structure of the constitution? Should the residential requirement for a Rajya Sabha member, a basic qualification, be deleted because major political parties want to bring members through the back door? The second point in my petition is the secrecy of voting. This is something basic for a democratic polity. Assembly is not an auction place where the show of hand will decide which party has got how many members. Money will play a bigger role than before because the buyer is sure to check the votes before they are cast. Some members, who were irked by conscience, used to vote against the party candidate. Now they would have to fall in line knowing that their disobedience might cost them the party membership. Strange, the election to the upper house in states continues to be on the old pattern, through a secret ballot.

Another question posed is: how can the court go into an amendment which is duly passed by both the houses? This is true. The court intervenes only when it comes to believe that such a law goes against the basic structure of the constitution. In its pronouncement in the Keshavanand Bharti case, the Supreme Court held that Parliament had no power to change the basic structure of the constitution. Federalism was defined as one of the basic features.

My petition was fixed for hearing on July 12. I would not have gone to the court for a stay order if the Chief Election Commissioner had deferred the biennial election of the Rajya Sabha members. I did not challenge the election of 11 members to the house after the new law because all of them belonged to the state from where they were elected. It is a fallacious argument by the Commission that it had issued the notification by the time the court's stay order came. I had sent a letter to the Commission requesting "it to defer elections till the disposal of my petition" along with a copy of my petition. I again reminded the Commission of the petition five days before the notification. But it did not pay any heed to my letters. Heavens wouldn't have fallen if elections had been postponed. After all, the Commission had to cancel the notification at the court's order.

The Commission should not have made it a prestige issue. Ideally, it should have requested the court for a day-to-day hearing for an early disposal of the petition because the points raised were germane to the character of the constitution.

Kuldip Nayar is an eminent Indian columnist.