Rajya Sabha not second to Lok Sabha

By Kuldip Nayar

A determined Supreme Court of India has thrown out the petition filed to seek the review of its two-part judgment. One, a Rajya Sabha member need not be normally a resident of the state which returns him or her through its assembly. Two, secret ballot system is not germane to free and fair election.

The judgment was criticised by both the press and the public. The three India's ex-chief justices to whom I talked regretted the verdict. And so did former President of India R. Venkataraman. The review petition provided the court with an opportunity to re-examine its arguments for rejection. However, the five judges who delivered the judgment dismissed the petition from the chamber itself.

They were not obliged to consult either lawyers or petitioners, but it would have been better if they had done so in view of wide criticism. A high court is obliged to consult lawyers but not the mighty Supreme Court.
Strange, both are courts of appeal and yet both have different rules to dispose of review petitions. When I filed the petition -- I did it on the 30th day to make the limitation period -- I imagined that the five judges would let it lie for the criticism to sink in and some type of debate to build up. But they took up the petition in less than a month, although the arrears of cases in the Supreme Court go back to several years.

In a way, the five judges have put a lid over domicile qualification controversy. But I have already heard murmurs in the states which are not ruled by either the Congress, or the BJP or the CPI (M). Who knows when the demand for the full bench to reconsider the judgment will crop up? The reason why I am perturbed over the judgment is because the five judges have given a new complexion to the Rajya Sabha, something which the constitution framers did not have in mind.

The latter wanted parliament to have two houses, one representing the states and the other representing people. The houses were named accordingly: the Council of States and the House of People. The name, Council of States, leaves no room for confusion. The law framed to ensure this made the domicile qualification compulsory so that the person going to the council of states is ordinarily a resident of the state concerned.

How can a member who does not know its language, its culture, or its ethos represent the state in the sense the constitution framers had envisaged? The judges make three points: one, the Rajya Sabha is somewhat secondary to that of the Lok Sabha; two, the house acts as a revising chamber; the Rajya Sabha helps in improving the bill passed by the Lok Sabha, and, three, in practice, the Rajya Saha does not act as a champion of local interests.

With due respect, I may point out that all the three points are contrary to the facts. The Supreme Court can interpret the constitution in any manner it likes but it cannot elucidate the provisions in a way which negates the letter and spirit of the constitution.

Parliament has two houses. Both are independent. Nowhere has it been laid down that one house is "secondary" to the other. The two have separate rules of business, separate secretariats and separate ways of conducting their affairs. Any bill, apart from the one relating to money, can be introduced in the Rajya Sabha and sent to the Lok Sabha for endorsement or vice-versa. The legislation relating to the all-India services and the states has to originate in the Rajya Sabha since the house represents the states.

When a bill can be initiated in either of the two houses, anyone of the two can "improve" it. The Rajya Sabha is not the repository of all knowledge. For the judges to say that the Rajya Sabha "helps improve the bill" is a reflection on the Lok Sabha.

The Rajya Sabha does not act as 'a revising chamber'. The discussion in both the houses is open and free. The outcome depends on the level of the debate or the content provided. Sometimes, the bill is revised drastically. It is not the Rajya Sabha alone which does it. The Lok Sabha can also revise it. The revision is done mostly by the Lok Sabha because it is the directly elected house.

However, in nine out of 10 cases, the bill going from one house to another does not undergo any change, not even a comma. I should know this better because I have been a member of the Rajya Sabha for six years, from 1997 to 2003. Contrary to the obiter dicta by the five judges, the Rajya Sabha members champion the causes of the state to which they belong.

Most questions asked by members and the supplementary put are of local nature. Members raise them to highlight a particular grievance or the happening which otherwise would have gone unnoticed. For this purpose, members use many devices: short notice question, half-an-hour debate or special mention.

How did the judges conclude that the Rajya Sabha did not champion local causes? Even the verbatim record of debates in the house would prove them wrong. The biggest omission in the judgment is the lack of realisation that India's is a federal structure and that the states constitute the Union. Some judgments of the Supreme Court have upheld this principle already. Dr B. R. Ambedkar who piloted the constitution made it clear in the speeches he made at the constitution assembly. He even clarified the residential qualification.

When R Venkataraman asked why a candidate should be the resident of the state concerned, Shyam Anand, a member, answered that it was so "because it is the council of states." Ambedkar endorsed this by saying, "Yes, that is the reason and the other is the house of people." (I have Venkataraman's letter to confirm this.)

What more could have been said to underline the difference between the two houses? The council of states has to have members who are not freelancers but are ordinarily resident of the state. Still the judges ignored this and tried to rewrite the constitution.

The question is no longer whether the court has the power to interpret and lay down the supreme law, but how it uses its authority. The answer to this has become all the more important after the Supreme Court's rejection of review petition.

(The writer is a former member of Rajya Sabha and veteran journalist. He contributes this column exclusive to The Sunday Times)