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| No to domicile | | Supreme Court upholds Parliament’s right | |
by V. Eshwar Anand
The Constitution Bench of the Supreme Court has rightly upheld Parliament’s right to amend the Representation of People Act and dispense with the domicile requirement for candidates contesting Rajya Sabha elections.
The judgement holds immense significance for the federal polity because the Bench has not only settled the law once and for all but also dispelled doubts among various sections about the Rajya Sabha’s structural composition vis-à-vis the Lok Sabha and Parliament’s power to amend the existing provisions.
Significantly, it was a high profile case. The fate of over 50 MPs depended on its outcome. The main petitioner, Mr Kuldip Nayar, is a veteran journalist. Counsels, Mr Fali S. Nariman and Justice Rajindar Sachar (retired), are reputed jurists. They have a high public standing and are respected for their knowledge and deep understanding of the constitutional law. Equally talented are Solicitor-General G.E. Vahanvati, representing the Union of India, and senior advocates Ram Jethmalani and Arun Jaitley.
A careful reading of the 317-page judgement convinced this writer of why the Bench has rejected the learned petitioners’ submissions for quashing the amendment as ultra vires the Constitution. There is no doubt that Parliament is vested with the power to amend the law relating to elections as and when necessary. The five-member Bench consisting of Chief Justice Y.K. Sabharwal, Justice K.G. Balakrishnan, Justice S.H. Kapadia, Justice C.K. Thakker and Justice P.K. Balasubrahmanyan unanimously held this view.
The grounds on which the amendment was opposed were many. These were, among other things, the issue of “strict federalism”; domicile as a constitutional requirement for contesting the Rajya Sabha elections; the Upper House as a champion of the states’ interests; the linkage between Articles 79 and 80 in the present constitutional scheme; the basic structure of the Constitution; the candidate’s representative character before being elected to the Rajya Sabha; the territorial link between the voter and the candidate; and the very meaning of the nomenclature, the Council of States.
The Bench closely examined the points of law involved in the question. Some of the reasons that had a bearing on the judgement need to be elucidated for proper understanding of the case. According to the Bench, unlike in the US, in India, domicile or residence is not considered a constitutional requirement under Clause (4) of Article 80. As it is a matter of qualification, it comes under Article 84 which enables Parliament to prescribe qualifications for candidates from time to time.
This is borne out of parliamentary history. For instance, the Fourth Schedule (adopted by the Constituent Assembly on July 28, 1947) that dealt with Parliament’s composition clearly mentioned that apart from citizenship and qualifications, Parliament could prescribe any other qualification “as may be appropriate”.
More important, Paragraph 6 of Part I of the Fourth Schedule appended to the first draft of the Constitution provided for the qualification of residence in a state for candidates contesting for the Rajya Sabha. Clause 60 of the first draft Constitution stated that all matters relating to or connected with elections to either House of the federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the federal Parliament. However, on February 11, 1948, the Drafting Committee dropped the Fourth Schedule. And with this deletion, the domicile requirement was also dispensed with.
It would be difficult for one to endorse Justice Sachar’s submission that the amendment violated the basic structure of the Constitution. Residence is not an essential feature of all federal constitutions. It becomes an explicit constitutional requirement “only if it is so expressly stated” in the Constitution.
In this context, the Bench referred to the Irish and Japanese constitutions and said that India does not have “strict federalism”, a point referred to by Mr Nariman in his submission. If a Rajya Sabha member does not “ordinarily reside” in the state from which he/she is elected, the Indian Constitution does not cease to be a federal Constitution. “Residence is not a prerequisite of federalism”, it said.
Mr Nariman’s reference to the “territorial link” between the Rajya Sabha member and his position as a “registered elector” in any panchayat or municipal area in that state is noteworthy. He emphasised that this is an important part of the constitutional scheme and that the structural composition of the Council of States will be at stake if this link was snapped through the amendment.
The Bench, however, found this point “devoid of merit” for various reasons. Four of these merit attention. One, the territorial link applies equally to the members of the Lok Sabha and state legislatures, not just the Rajya Sabha. Two, the purpose of this linkage is to equip the members (of all representative institutions) with knowledge about local problems and to strengthen democracy. Three, the enabling provisions depend on the provisions enacted by the respective legislatures from time to time for each state. If a Rajya Sabha member is registered as an elector within a panchayat or municipal area, there can also be another member of the same House not so registered as an elector within a panchayat or municipal area. And four, there is no explicit constitutional provision prescribing the requirement of residence to the qualification for membership.
One reason that prompted Parliament to dispense with the domicile clause is the manner in which candidates contesting for the elections to the Upper House have been submitting false declarations of residential proof “brazenly and with impunity”. The Bench was shocked to take note of these aberrations. However, it maintained that it was not concerned with the political compulsions of the issue. If Parliament had decided to bury the domicile clause, it could not be quashed in the absence of any law or provision prescribing the domicile requirement as an essential qualification for the Rajya Sabha membership.
The Bench is right that burying the domicile clause is not the be-all and end-all of the problem. Parliament has an obligation to precisely define the expression “ordinarily resident” as this is essential for the registration of a person as an elector in a particular constituency.
It would be in the fitness of things if the Union Government and Parliament explored the possibility of defining the expression “ordinarily resident” properly and comprehensively under the relevant provisions of the law. This will leave no scope for any ambiguity or confusion in the law and help contribute to the growth and enrichment of the world’s largest democracy.
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