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| No longer a House of States | | In the interest of politicians | |
by Punyapriya Dasgupta
THE Supreme Court has been seeing the “basic structure” of the Constitution of India as sacrosanct and, therefore, not open to tampering or tinkering. Yet it is not clear which of the 444 articles and 12 schedules that make the world’s longest sovereign constitution are to be so treated.
The judgement in the Keshavananda Bharati case 33 years ago introduced the concept of the basic structure. The majority of the 13 judges signed a summary statement asserting the inviolability of the basic structure created by the preambular ideals of justice, liberty, equality and fraternity in a sovereign socialist secular democratic republic. But this was rather abstract.
Many of the judges, therefore, thought it necessary to point to the features of the edifice Parliament should not try to dismantle or alter. They appended to the court’s verdict four separate lists without quite reconciling them. Chief Justice Sikri’s list, supported by some other judges, had five points and among them a republican and democratic form of government and the federal character of the Constitution.
Questions had to arise some day. Two journalists and former MPs, Kuldip Nayyar and Inderjit, went to the Supreme Court and contended, through their counsels, Rajendra Sachar and Fali Nariman, that the abrogation of the requirements of normal residence in a state and of secret voting for Rajya Sabha elections by Parliament’s amendment of the Representation of People’s Act were unacceptable assaults on the basic structure of the Constitution and should, therefore, be set aside and the status quo ante restored.
A five-judge Bench headed by Chief Justice Sabharwal turned down both pleas last month. According to this verdict, India’s federal system was not related to territory and since the secret balloting had become a source of corruption it deserved to be replaced by an open expression of choice. This came as a surprise to many.
The very first article of the Constitution says that “the territory of India shall comprise (a) the territories of the states. . .” and “the states and the territories thereof shall be as specified in the First Schedule.” The Rajya Sabha or the Council of states is a house of representatives of the states as distinct from the Lok Sabha or the House of the People of India. Some may not, therefore, be able to see the logic behind the view that the Indian federal structure is not territory-related. The Rajya Sabha has only 12 nominated members of all-India eminence and 238 representatives of the states elected by the respective Legislative Assemblies. The supplementary rule made by the Representation of People Act that the elected representatives of the states must normally be residents of their respective states was a legal reiteration of common sense and worked well for roughly half a century. Then began its bypassing with the help of fictions.
The political parties consensually encouraged it because some of their leaders and candidates had to be brought into Parliament even if they could not win Lok Sabha elections. Who could have imagined that Dr Manmohan Singh with his huge reputation for honesty and integrity would claim that he was normally a resident of Assam? Or that Pranab Mukherjee lived in Gujarat? But the Election Commission, with official India’s Upanishadic motto, “satyameva jayate”, emblazoned on its walls, chose to believe them. And the Government of India’s legal representatives argued in court that since the residence qualification had been massively flouted, this law deserved only to be scrapped.
If India decides some day to fight this kind of political debauchery, its legal machinery will have to grapple purposefully with the question whether a palpable lie can be converted into an acceptable truth by the seal of an undependable notary sold for a few rupees.
The replacing of secret voting in Rajya Sabha elections by open balloting will also remain controversial. It is true that the secret vote was being sold by unscrupulous MLAs for a price. But how will an open show of choice help? Earlier, individual legislators were taking lakhs under the table and cheating their party whips and now the political parties are charging crores for nominating moneybags for election to the Rajya Sabha wherever there is a vacancy. If a Surat businessman gets the single seat for Manipur in the Rajya Sabha he may remain unconcerned if and when the complaints of the Manipuri people against the application of draconian laws in the name of curbing separatism come up for discussion in that House. The Supreme Court also took this opportunity to repeat for the umpteenth time that the right to vote, though fundamental to democracy, is neither a fundamental right nor a common law right but simply a statutory right. True, the Constitution does not mention this right among the Fundamental Rights but the chapter on Parliament does require the House of the People or the Lok Sabha to be composed of 530 members “chosen by direct election.”
It is time a definitive clarification was made that direct elections could not happen without an unalterable right to vote. If something is seen as merely a Parliament-granted privilege there is an implied admission that it is not a fundamental right that cannot be withdrawn. The Supreme Court’s present position on this issue makes the right to vote tenuous. There is a clear warning already although it is in the other hemisphere. In Bill Clinton’s language, George Bush “stole” his first election in 2000 and this was made possible by the US Supreme Court’s strange verdict that the American people had no constitutional right to vote or insist that all the votes cast be counted.
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