only electors (a person not less than eighteen years of
age on the qualifying date, and ordinarily resident in a
constituency) in a State could represent the State in Rajya
Sabha. But this amendment permitted any elector in India
to contest for Rajya Sabha from any State. Also, through
that enactment, a proviso was inserted in section 59 of
the RPA to the effect that the votes in Rajya Sabha election
"shall be given by open ballot"
Kuldip Nayar's contention is that federalism is a part of
the "basic structure" of the Constitution, and
the legal requirement of residence and registration as a
voter in a State to represent that State in Rajya Sabha
cannot therefore be done away with. In principle, this residential
requirement seems quite reasonable. But the Constitution
does not impose any such qualification. Article 84(C) gives
the Parliament the power to make a law to prescribe any
qualifications for membership of either House. The elected
members of Legislative Assembly of the State elect members
of Rajya Sabha through a system of proportional representation
by means of the single transferable vote. Election is an
intensely political act, and the state legislators can be
trusted to elect a person who, in their judgement, is most
suitable to represent them and their State. There is no
reason to fear that in the absence of residential requirement
in the State, the State's interests will not be properly
represented in Parliament. If an elector from any part of
the country can contest from any constituency and represent
its people in the Lok Sabha, this same principle of representation
should hold good for the Rajya member representing a State.
While residential requirement is desirable, it is cannot
be part of the "basic structure" of the Constitution,
or integral to federal principle.
more objectionable is the amendment to provide for open
ballot in Rajya Sabha election. This 'open ballot' requirement
is a desperate attempt by parties to bring some discipline
and ensure election of their candidates to the Rajya Sabha.
It is possible to contend that 'open ballot' is violative
of an elector's right to elect a representative. But it
can be argued with equal strength that the MLA is a people's
representative, and people have a right to know how he voted
in the House, or in an election in which he is the elector.
Only a citizen has the privileges and rights which are inviolable,
and an elected representative cannot claim privileges over
the people whom he represents.
the Court will examine these tricky questions. But the two
central issues which led to this amendment in 2003 are still
valid. First, parties have a need to induct talented and
credible members into parliament. Election to Lok Sabha
has become very expensive. Given our single-member constituency-based
election, the marginal vote that a candidate secures has
become all-important. Our system does not guarantee the
election of truly worthy, respected and competent persons.
Dr Manmohan Singh's loss in South Delhi in 1999 is a classic
illustration of this genuine problem faced by parties and
politicians. Similarly, a party may not have the strength
required to get a prominent leader elected to Rajya Sabha
from his state. Dr Karan Singh, Pranab Mukherjee, Arun Jaitley,
Arun Shourie, Venkaiah Naidu and several others have been
distinguished members of Rajya Sabha. Many of them could
not be elected to Rajya Sabha from states where they ordinarily
reside. Dr Manmohan Singh had to suffer the indignity of
having to register himself as a voter in Assam, and face
motivated criticism in order to be elected to Rajya Sabha.
it is undeniable that many state legislators are seeking
large sums of money to cast votes in a Rajya Sabha election.
Often they demand money to vote for a candidate nominated
by their own party. These are genuine problems faced by
party leaderships in the real world of politics. Emphasis
on technicalities will not address the real crisis.
need to look at mechanisms to induct the best talent into
legislatures without difficulty. Why is a Taslimuddin or
Jayaprakash Narayan Yadav a more legitimate people's representative
than a Manmohan Singh or Arun Jaitley? Certainly election
to the lower House imparts greater legitimacy in a democracy.
But why should a concentrated pocket of support be more
legitimate or valuable than nation-wide or state-wide support
for a candidate or party? As John Stuart Mill pointed out
in his "Representative Government" in 1861, "the
pure idea of democracy, according to its definition, is
the government of the whole people by the whole people,
equally represented". Democracy as practiced in India
and a few former British colonies is the government of the
"whole people by a mere majority of the people, exclusively
represented". The democracy must be "synonymous
with the equality of all citizens, not "a government
of privilege, in favour of the numerical majority, who alone
possess practically any voice in the State".
long as representation is skewed in this manner, we will
have these dilemmas unresolved. We need to redefine victory
in a democracy, change the nature of representation, encourage
the best and brightest into politics, and rejuvenate our
Republic. Such bold reform, and not legal nitpicking, is
the need of the hour.