Removal of ‘Domicile’ Requirements for Rajya Sabha – Potential Threat to the Federal Structure?

By Akash Mishra, WBNUJS

Editor’s Note: The Rajya Sabha has always been considered to be a vital cog in the legislative structure of India. The 2003 Amendment to the People’s Representation Act, 1951 dispensed with the domicile requirement for the election of members for the Rajya Sabha. This amendment was passed by the Parliament but invariably led to a barrage of questions with regard to the federal compromise it caused. This paper therefore attempts to discuss this Amendment and whether this poses a potential threat to the federal structure of India.

INTRODUCTION

The founding fathers of our nation, after numerous debates about the intended legislative structure, decided upon a dual-chambered parliament for a more structured and efficient system of policy-making. Our legislative fabric attempts to weed out, out-of equilibrium policies through a concurrence between both the houses of the parliament. This idea of bicameralism, owing to its varied successful precedents across the globe, has rightfully been accepted as a vital cog in the governance of any nation that lays its essence upon the ideals of participatory democracy.

Rajya Sabha (The council of States), the second chamber in our legislative structure, has always been considered crucial to represent and uphold the interests of the Indian States. Article 80(4) of the Constitution lays down the election procedure of the Rajya Sabha members through the system of proportional representation by State legislative assemblies owing to its objective of creating a State representative federal structure.[1]

Until the 2003 amendment in the People’s Representation Act, 1951 (Section 3) that dispensed with the domicile requirement for the election of Rajya Sabha members, domiciliary clause was considered to be an uncompromising requirement for the cause of State representation by these members. Nevertheless, this amendment was passed by the Parliament but invariably led to a barrage of questions with regard to the federal compromise it caused.

Federalism as a concept in simplistic terms can be understood as an admixture of self as well as shared governance.[2] In that broad sphere, there exists a “spatial division of authority, capacities, and responsibilities” and especially a diverse representative character owing to which the Union-State power structure co-exists.

FEDERALISM AND REPRESENTATION

This linkage between representation and federalism is very important concept in understanding the issues raised in this paper.

With reference to the writ petition filed against this amendment, it was held in the landmark judgment of Kuldeep Nayar v. Union of India[3], that “Representatives” according to Article 80(1) (b), Article 80(2) and Article 80(4) of the Constitution must be understood simply as “individuals elected to represent the state in the Council of States”. It laid focus on the literal or plain interpretation of the constitutional clauses as it deemed them to be unambiguous.

However, upon analyzing this linkage between representation and federalism, it can be noted that connotation of representation cannot just be limited to an action made just “in lieu of another”. The large objective of the Federal structure in the Council of States is to provide for the issues of the states to be heard[4] , with apt representation becoming a mandatory requirement. The idea that is propagated through this literal interpretation is that the representative shall be working “on behalf of” the state through his representation but rather the requirement is of purposive interpretation to understand that (As enunciated in The Concept of Representation by Hana F. Pitkin[5]) it also entails aspects such as the accountability of the representative, the shield provided to the constituents, their requirements and especially a clear understanding of the prevailing circumstances of the region alongside mere literal representation. Thus, it may not fulfill the tenets of federal representation in this case.

Also, it must be noted that an integral part of representation lies in understanding the requirement of the one that is being represented. The crack theory (enunciated by Morton Grodzins in his paper on Federalism[6]) represents that people must have the fissure to express their views as well as have the ability to have a “crack” at the government/influence the policies in a federalist structure. Such a fissure very importantly requires that the representative and the represented must share strands of commonality that allows the representative a thorough understanding of the background of the issues. However, in this scenario, no such commonality would exist and infringement of few basic principles of Federalism is but obvious.

FEDERALISM AND HETEROGENEITY

It was laid down by the Court that merely on the basis of the domicile, a person cannot be assumed to be representing the state and any “outsider” could also represent it effectively.[7]

So, the question that must be dealt is why should territorial representation by local individuals be considered federal in nature? 

With this regard, it must be noted that the execution of federalism cannot be the same in every circumstance. The variation happens according to the homogeneity or heterogeneity of it constituents[8]. In the Indian context, it is a fact that the cultural diversity is immense and the circumstances differ from point to point devoid of syncretism geographically, culturally and historically.

Thus, in such a heterogeneous society, the “construction of federalism often reflects differing levels of regional identity[9] and specific regional groups might be considered more significant and few might be left behind[10]. The prime objective of a representative is to sensitize the issues of the region, help gain resources and shape appropriate policies and in such a society, it becomes imperative that the representative must be of the region himself as the underlying heterogeneity calls for a representative who has the inherent understanding of the situation rather than an outsider who may not be able to understand the regional variations.

Another argument against the much debated amendment is on the fact that the idea of a state is not merely territorial but it is also inclusive of its inhabitants.[11] This argument was buttressed by the petitioners in the Kuldeep Nayar case wherein reference was made to Article 1 of the constitution which states that India shall be a Union of States. Through this understanding, it must be noted that the term “Representatives of each State” (Article 80(4)) refers only to people residing in the state and thus, only they can have a capability to represent the State in the Council of States.

RAJYA SABHA AND ITS GENESIS

To understand the idea of federalism in the Council of States better, the purpose for the creation of the Upper House must be looked into. As the nomenclature itself suggests, the elections are to a body known as the council of States and thus, the representation of the state is prime here and focus is on raising issues about the State. According to the parliamentary debates on the requirement of the Rajya Sabha, this distinction between the two houses highlighted the representative nature of the Rajya Sabha members[12]. It kept in focus a federal structure that shall mirror the diversity of various states of the country and such an amendment militates against the very object of the Rajya Sabha.[13]

Also, it was stated by the report of National Commission on Working of the Constitution[14] that the amendment that does away with the domiciliary requirement for the election to the Rajya Sabha would have an effect upon the “the basic federal character of the Council of States”. The domicile requirement was deemed to be essential for maintaining the federal structure. It emphasized that the structure of the Council of states has been altered due to the amendment and it is against the basic structure of the constitution itself w.r.t. the Federal model which our country follows.

Owing to the amendment in question, there are few aspects which must be looked into so as to realize the great threat that it causes to the federal structure. Individuals who are not able to win at the Lok Sabha elections or ones who may not be able to win the Rajya Sabha seat from their own states have been taking advantage of this retrograde amendment to reach the Rajya Sabha irrespective of the ideals of federal representation[15]. Looking at the possibilities, it can happen that in a certain situation that all the representatives of the different states would belong to one particular state and the ideals of diversity and State representation in the Council of States shall be infringed, maybe not under literal interpretation of the statute but surely under the rightful purposive interpretation which is based on the basic federalist structure of the constitution.

In situations like the aforementioned one, it is also quite possible that there could arise a conflicting situation wherein “representatives” originally from one state having been elected from another could face a dilemma between duty and interest in sessions of the house, leading to a significant breakdown of the Federalist ideals.[16] In a justifying stand, the apex court stated in the Kuldip Nayar case that even after the amendment, it is the same State legislature that elects the members and it is in their discretion to choose a domiciled candidate or an outsider[17].

However, this argument cannot be accepted as it is true that the State legislatures decide the representatives in both cases but it is foolhardy to provide for an option to misuse the provision, when there is no such requirement, and then argue that the choice always remained with the legislature to decide. The larger objective has always been a federal representation in the council of states where the interests of the state are pursued in the best possible manner. So, this objective must remain fundamental for the whole idea to stay alive.

Also, it wouldn’t be a hasty conclusion to make that there existed various political motives that led to the amendment after it withstanding over five decades of constitutional existence as the number of MPs in the Council of States who did not belong to the state that they represented was a startlingly high number.

CONCLUSION

The Indian Federalist model is deemed to be one that is not classical in nature with many vital differences from its American and European counterparts. Nevertheless, it undoubtedly features as a cardinal tenet of the Indian political structure with people being the center of the power structure. Owing to the above discussed amendment, the individuals have everything to lose as they can only watch as the principles of rightful representation shall be tarnished to accommodate a rather retrograde amendment due to which the States may not be able to voice their issues effectively.

The change is catabolic in nature leading to the ideals of federalism, with reference to the Rajya Sabha, now being just a muddled expression of what was originally established. So, the amendment to the domicile requirements in Rajya Sabha is indeed a great threat to the Indian Federalist principles.

 Edited by Hariharan Kumar

[1] D D Basu , Shorter Constitution of India (14th, Lexis Nexis Butterworths Wadhwa Nagpur, 2009) 704.

[2] Daniel J. Elazar, Exploring Federalism (3rd, University of Alabama Press, 1987).

[3] AIR 2006 SC 3127.

[4] M.P Jain, Indian Constitutional Law (6th, Lexis Nexis Butterworths Wadhwa Nagpur, 2011) 25.

[5] Hanna F.  Pitkin, The Concept of Representation (3rd,  University of  California  Press,  1967).

[6] Morton  Grodzins,  The  American System: A New View of  Government  in  the United  States (2nd, Rand McNally & Company,  1966) 14.

[7] Kuldeep Nayar v. Union of India AIR 2006 SC 3127 (Para 26).

[8] Michael  Keating,  ‘Asymmetrical  Government:  Multinational  States  in  an Integrating  Europe’ (1999) Publius: The Journal  of  Federalism  71, 86.

[9]Joanne Bay Brzinski, Thomas D. Lancaster and Christian Tuschhoff, ‘Federalism and Compounded Representation: Key Concepts and Project Overview’ (1999) Publius: The Journal of Federalism 1-29.

[10] Ibid.

 [11] Kuldeep Nayar v. Union of India AIR 2006 SC 3127 (Para 247).

[12] Kuldeep Nayar v. Union of India AIR 2006 SC 3127 (Para 89).

[13]Rajya Sabha and Residency,’ The Hindu (26/08/2006), available at http://www.hindu.com/2006/08/26/stories/2006082604091000.htm, last seen on 28/09/2013.

[14] Para (5.11.5)

[15] Kuldeep Nayar, ‘The House of Aliens’, Outlook India (26/09/2005) available at  http://www.outlookindia.com/article.aspx?228695, last seen on 28/09/2013.

[16] Ajay K. Mehra, ‘Rethinking the Rajya Sabha’, The Hindu (23/04/2003) available at http://www.hindu.com/2003/04/23/stories/2003042300031000.htm, last seen on 28/09/2013.

[17] Kuldeep Nayar v. Union of India AIR 2006 SC 3127 (Para 122).

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