By Abhishek Mohanty, WBNUJS
Editor’s Note: In the year 2003, the Parliament passed an Amendment to Section 3 of the Representation of People’s Act, 1951 due to which the domicile requirement for membership into the Rajya Sabha was scrapped. This amendment came to be challenged in the landmark case of Kuldip Nayar v Union of India in which the Hon’ble Supreme Court rejected the arguments of the Appellant. This paper further goes on to discuss the misuse because of this Amendment. The pertinent question here is: whether this amendment is an attack on federalism itself?
The Rajya Sabha also known as Council of States is the upper house in the Parliament of India. The Rajya Sabha unlike the Lok Sabha is not subject to dissolution. It has 250 members which also includes 12 members nominated by the President for their contributions to art, literature, science and social services. The members of Rajya Sabha sit for six years with one-third of the seats being vacated every two years. The Rajya Sabha members are elected by the elected members of State Assemblies in accordance with the system of proportional representation by means of the single transferable vote.
There was debate regarding the need for a Second Chamber in the Parliament. It was decided that a Second Chamber usually allows for more space for debate and also delay legislations which are passed in a hurry under political compulsions. In its role as a revising chamber, it has brought in many changes to legislation which have been passed by the Lok Sabha.
One of the more important requirements to setup the Rajya Sabha was the need for a federal chamber where the representatives of state represent the interests of the state in framing legislations. It also enjoys some special powers with regards to legislation. Being a federal chamber, it can initiate Central intervention in State matters. This power is given under Article 249. Article 312 also provides exclusive power to create All India Services for common to the Union and the States.
REMOVAL OF DOMICILE REQUIREMENT
In 2003, the Parliament passed the amendment to Section 3 of the Representation of People’s Act. The qualification for membership to Council of States stated that, for qualification to Council of States, the requirement was that one should be an elector for a Parliamentary constituency ‘in India’ as opposed to ‘in that State or territory’ which was the previous position. Thus, the earlier domicile requirement was removed by effect of this amendment.
This amendment came to be challenged in the case of Kuldip Nayar v Union of India. Mr Sachar, advocate for the appellant argued that the domicile requirement was such an intrinsic part that removal of it would affect the federal structure which is one of the basic feature of the Constitution. Fali Nariman also appearing for the appellant contended that the defining characteristic of Rajya Sabha as a Council of ‘States’ has been lost due to the amendment. He argued that only because a member has been elected in that state. To be a representative, one should be atleast a resident of the state. Nariman used Article 80(4) where the words “representatives of each state” were used to show that person who is elected must first be qualified as a representative of the State in question.
Rejecting the arguments, the Supreme Court said that it is the status acquired upon election as a member of the legislature that bestows upon the person the character of a “representative”. Further the Court held that names given to the two Houses do not bestow any right or obligation on Parliament to make laws according to it. Article 84(c) provides for the Parliament to prescribe the requirements for being a member of Parliament. The court remarked that it was unimpressed with the justification of domicile through the usage of Article 80(4) and there is absolutely no basis for the contention that a person who is an elector in the State concerned is more “representative” in character than one who is not.
MISUSE AND IMPACT
The previous residency rule was being circumvented widely by leaders across the political spectrum. Pranab Mukherjee claimed to be a resident of Gujarat and produced his LPG connection papers to prove his residency. Prime Minister Manmohan Singh is a elected member from Assam. Sitaram Yechury chose to contest from West Bengal. Other leaders include LK Advani, RK Dhawan, SR Bommai etc. Also, in some elections like that of Hema Malini contesting from Karnataka, the outsider-vs-insider debate has been a talking point for the Rajya Sabha elections. Further in 2010 in Jharkhand, a state carved on regional identity, four out of six MPs were from outside the state. Further the abuse of money power to get a Rajya Sabha seat was prevalent.
The contention with the rule started only in 1993 when the then Chief Election Commissioner T.N.Seshan forwarded a list of 20 MPs, who appeared prima facie not as an ordinarily resident in the State from which they were elected, for the period since January 1, 1988, to the Chief Electoral Officers of the States. With the amendment, this trend of ‘carpet-bagging’ gained legitimacy.
ATTACK ON FEDERALISM?
The purpose of the Rajya Sabha was envisaged to hold dignified debates on important issues and to share the experience of seasoned persons who were expected to participate in the debate with an amount of learning. Federalism is not territory-related, hence domicile should not be a precursor for federal structure.
Under the Government of India Act 1935, domicile was never a requirement. The Rajya Sabha as a Second Chamber has been setup differently than the US Senate where all the States have equal representation. The representation to States in Rajya Sabha has been given on the basis of population as mentioned in the Fourth Schedule.
The author feels that state representation in Rajya Sabha was never a qualifying factor for the practice of federalism in India. The basic feature of federalism is delineation of subjects on which the State and the Centre can legislate. This is done through the Seventh Schedule. The argument that a representative who did not belong to a state could not effectively represent it is not correct. As long as states had a right to be represented in the Rajya Sabha by their chosen representatives, it could not be said that federalism was affected.
In the debate about the purpose of Rajya Sabha, leaders such as Gopalaswamy Ayyangar and S. Radhakrishnan perceived it to be a dignified, cooling and revising chamber whereas others such as K. T. Shah, Lakshminarayan Sahu and Loknath Mishra wished to assign equal representation to each State in the House and to have the role of the Council of States. But the consensus was to have the Rajya Sabha as the second chamber in the traditional sense, with an appearance of the Council of States. Even the Sarkaria Commission held that the primary role was “… that of a second chamber of Parliament exercising legislative functions, more or less coordinate with the Lok Sabha”.
Even the matters debated in Rajya Sabha come under the purview of Union List. Except while legislating under Article 249, 312 and 356(3) the role played by the Rajya Sabha is similar to that of the Lok Sabha. Even Article 249 and Article 312 deal with subject matter of national interest and creation of All India services respectively. Article 356 also gives powers to Rajya Sabha to impose a State emergency if the Lok Sabha is dissolved during that period. Both of the former matters do not affect any State in particular but the country as a whole. Powers under Article 356 are of a care-taker nature since the proclamation has to be ratified by Lok Sabha within 30 days of its reconstitution. The author contends that a non-resident representing a State can debate on these matters and contribute to the process of law-making as well as a Lok Sabha representative from the State. In converse, if the domicile requirement was maintained, the author fails to fathom how it would enhance or improve quality of the debate. Also the members vote according to their party affiliation and not according to their states because of political compulsions.
The author would also like to point out that Rajya Sabha has a provision for twelve nominated members who have achieved excellence in fields of to art, literature, science and social services. This inclusion was done to bring in different perspectives and improve the quality of legislation. Hence, this further shows that not representation of states but representation of wide spectrum of people was the purpose of Rajya Sabha which is not altered anyway by the amendment.
The author also concurs with the Court’s reasoning that merely labeling it as ‘Council of States’ is not enough to make domicile a requirement. A ‘representative’ can be any person whom the State’s legislators find eligible to represent the State. The election is what makes a person eligible to be a ‘representative’. If the legislators find a person having a link or nexus to the State a better candidate, they can exercise their right to elect him instead of the non-resident candidate. By including non-residents, no bar is created for the residents of the State to contest for Rajya Sabha candidature.
After contesting the arguments and counter-arguments, the author disagrees with the notion that the federal structure is getting affected due to allowance of non-residents to contest Rajya Sabha elections in a State. Although Rajya Sabha has been termed as ‘Council of States’, the argument that it is the forum for representation of State interests is not entirely correct since the subject matter except under two cases, are the subjects mentioned in Union List.
The purpose of the Rajya Sabha in its role as House of Elders is to debate legislations without the threat of re-election and political compulsion. Although such practices are undermined by political, the Rajya Sabha enjoys a better position in reaching consensus. It was observed in Bryce conference that it was more useful if the discussion on important issues were carried out without the risk of a fall of Government. Shri Gopalswami Ayyanagar, one of the founding fathers of the Constitution of India expressed the opinion that “the most that we expect the Second Chamber to do is perhaps to hold dignified debates on important issues.”
Moreover, the statutory right of the legislators of a State to choose a representative of their choice defeats all arguments of subverting federalism by allowing non-residents. Instead, it makes the choices wider. As is sometimes the case in our country, where there are no viable choices, having a wide scope.
Edited by Hariharan Kumar
 Section 3 of the RP Act, 1951, was substituted by the following provision through the Adaptation of Laws (No. 2) Order, 1956 and thus came to read as under:
3. Qualification for membership of the Council of States. – A person shall not be qualified to be chosen as a representative of any State other than the State of Jammu and Kashmir or Union territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory.
 AIR 2006 SC 3127
 N.K.Singh, ‘Domicile Farce’ (India Today 1993) <http://indiatoday.intoday.in/story/in-a-crass-display-of-carpetbagging-politicians-file-false-residence-papers-to-bag-rajya-sabha-seats/1/302624.html> accessed 29 September 2013
 PTI, ‘Hema Malini files Rajya Sabha nomination, kicks up ‘outsider-local’ row’ (DNA India 2011) <http://www.dnaindia.com/bangalore/1510934/report-hema-malini-files-rajya-sabha-nomination-kicks-up-outsider-local-row> accessed 29 September 2013
 IANS, ‘Outsiders dominate Jharkhand Rajya Sabha members’ (Hindustan Times 2010) <http://www.hindustantimes.com/India-news/Jharkhand/Outsiders-dominate-Jharkhand-Rajya-Sabha-members/Article1-559642.aspx> accessed 29 September 2013
 Ajay K. Mehra , ‘Rethinking the Rajya Sabha ‘ (The Hindu 2003) <http://www.hindu.com/2003/04/23/stories/2003042300031000.htm> accessed 29 September 2013
 Kuldip Nayar (n 2) ¶ 26
 Kuldip Nayar (n 2)
 Legal Correspondent, ‘Domicile not key to RS: Court ‘ (The Telegraph 2006) <http://www.telegraphindia.com/1060823/asp/nation/story_6645677.asp> accessed 29 September 2013
 Ajay K.Mehra (n 6)
 Training Cell, Rajya Sabha Secretariat (2012) Rajya Sabha- Its contribution to Indian Polity, New Delhi: Rajya Sabha Secretariat.