A disappointing judgment

True, the court has upheld the parliament law which has done away with the residential qualification for a member of the Rajya Sabha (the upper house) and which has introduced open ballot in place of secrecy in voting. But in the process, the court has changed the very complexion of the Rajya Sabha. The house does not have to have members who ordinarily reside in particular states. The Rajya Sabha is no more the Council of States but a council of freelancers from anywhere, with little link with the state which is returning them through its assembly.

The constitution framers were particular about the link, a meaningful tie. Former President R Venkataraman, who was a member of the constituent assembly, recalled that Dr B.R. Ambedkar, who piloted the constitution, clarified that a candidate to the council of states should be a resident of the state concerned, but a candidate to the House of People needs to reside only in any parliamentary constituency. The Supreme Court sees no merit in the elected member being from the state "because the electorate that is electing him is required by law to do so." It is a strange argument to justify the election of an outsider. The point at issue is not who can be elected but who can represent the state. Obviously, a person who normally lives in the state should be preferred to a freelancer. The first is familiar with the state's culture, problems and its aspirations. The second has an address in the state and may not know even its language.

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Take the case of Karnataka and Tamil Nadu. The two states have a running dispute over water. Will a person who is a resident of Karnataka represent the state's interest better or the one who belongs to Tamil Nadu but has been sent by Karnataka to the Rajya Sabha? That is the reason why the National Commission, appointed to review the working of the constitution, recommended "that in order to maintain the basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections to the Rajya Sabha from the states concerned is essential." The commission was sitting when the bill to change the residential qualification was initiated in parliament.

The Supreme Court's argument that federation is not territory related takes the cake. A federation is a formation of a political unity out of a number of separate states, or districts, which retain control of their own internal affairs. The key words are: separate states controlling their own internal interests. The entire justification of a state goes if it does not have its own people, sons of the soil, their own ethos. How do freelancers constitute a state? Agreed that "the residence is neither a constitutional factor nor a constitutional requirement," but who embodies the state, definitely not those who are not even ordinary residents?

The Supreme Court feels satisfied as long as the representatives to the council of states are "citizens of the country." If there is no residential qualification, logically all the 250 Rajya Sabha members, excluding the 12 nominated ones, can not only be from one state but from one city. Surely, the Supreme Court would not want that. There is no option to the domicile requirement.

The Supreme Court's new title of "revising house" for the Rajya Sabha brings down its status and stature. The Rajya Sabha is an independent house, with its own duties and obligations. Its role is not secondary to that of the Lok Sabha. All bills, except the ones relating to money, can be introduced in the Rajya Sabha. In that case, the Lok Sabha becomes a revising house. In matters concerning the state, the Rajya Sabha comes first. All questions relating to the central services, and the like, are initiated in the Rajya Sabha. It is second to none. I express my inability to make out what the Supreme Court means when it says that right to elect "is neither a fundamental right nor a common law right, but pure and simple, a statutory right and not a constitutional right." At the same time, the court says that right to elect is fundamental to democracy. I find the two contentions contradictory. How does a country stay democratic if right to elect is not something basic or fundamental? That right differentiates democracy from dictatorship. It cannot be anything else except fundamental if the society is to function freely.

The Supreme Court is weakest in its argument when it defends open ballot in place of the right of secrecy of voters. It says that "the right to vote in secrecy is not correct since the constitution has, itself, provided for elections by secret ballot where it thought it fit to do so." In a democratic structure, the constitution does not have to spell out where the ballot will be secret. It is understood that the voting to the elected positions will be secret. Open ballot offends the conduct of free and fair election, a basic feature of democracy. Even the constitution provides, under Article 19(1) (a), the freedom of expression.

The Supreme Court has depended on the argument that political parties find it difficult to stop corruption in secret ballot. The open ballot will change the mode. Money will go to the leader, not to a member. How is the open ballot more transparent when a political boss has ordered who will vote for whom? But then the court is more concerned with the discipline within a political party than the norms of a free and fair voting. The Supreme Court's plea for open ballot system has made a mockery of guarantees, given in all the international covenants, that the voting will be through secret ballot.

It is sad that the Supreme Court judgment has opened the doors to the Rajya Sabha to money bags, the mafia or the unwanted. The house will be a hunting ground for those who have clout, or deep pockets. Political bosses are now free to bring their favourites from any nook or corner of India. The constitution had laid down that only 12 members will be nominated to the Rajya Sabha. Now the whole house will be nominated by political masters.

True, the Supreme Court has dismissed my petition but my point has many takers. My view is a challenge to the intelligentsia and future generations which, I believe, will correct the error which the court has committed. The Supreme Court is final but not in fallible.

Kuldip Nayar is an eminent Indian columnist.