The biennial elections to Rajya Sabha (the upper house of the Parliament) are being held on 11 June 2016. It is noticed that whenever elections to Rajya Sabha take place, the outsider-insider debate starts. Many of the candidates nominated for Rajya Sabha election by various political parties are outsiders to the states in which they file their nominations for election. This time also, the same debate has started again. For example, Ram Jethmalani and P. Chidambaram have been nominated for Bihar and Maharashtra Rajya Sabha seats respectively (both have already been elected unopposed), while Suresh Prabhu is contesting from Andhra Pradesh, Venkaiah Naidu from Rajasthan, and Kapil Sibal from Uttar Pradesh. All of them are outsiders to these respective states. The question that is often raised is – can a person, who is not a domicile or resident of a state, get elected from a Rajya Sabha seat from that state?
As per the provisions of the law existing now, an outsider can be elected from a Rajya Sabha seat in a state. Prior to 2003, the legal provisions then existing did not allow an outsider to be elected to a Rajya Sabha seat from a state. However, in 2003, the relevant provisions existing in the Representation of the People Act, 1951, were amended to allow an outsider to get elected to a Rajya Sabha seat from a state.
Previously, Section 3 of the said Act that laid down qualification for membership of the Council of States (Rajya Sabha) stated that a person shall not be qualified to be chosen as a representative of any State or Union Territory in the Council of States unless he is an elector for a Parliamentary constituency in that State or territory. However, by an amendment made in 2003, this provision was changed. The amended provision now requires that a person shall not be qualified to be chosen as a representative of any State or Union Territory in the Council of States unless he is an elector for a Parliamentary constituency in India.
Therefore, while the previous provision required that for being elected to Rajya Sabha, the person should be an elector for a Parliamentary constituency in that State or union territory, now he is required to be an elector for a Parliamentary constituency in India. Thus, any person, who is registered as an elector anywhere in India can now be elected from a Rajya Sabha seat in any state or union territory.
The aforesaid amendment was challenged by the noted journalist Kuldip Nayar before the Supreme Court and his petition was decided by a Constitution bench of the Supreme Court in the case of Kuldip Nayar v. Union of India, (2006) 7 SCC 1 : AIR 2006 SC 3127. It was contended that the said amendment offends the principle of federalism, the basic feature of the Constitution; it seeks to change the character of the Republic which is the foundation of our democracy and that it distorts the balance of power between the Union and the States and is, therefore, violative of the provisions of the Constitution. It was further contended that the Rajya Sabha is a House of Parliament constituted to provide representation of various States and Union Territories; that its members have to represent the people of different States to enable them to legislate after understanding their problems; that the nomenclature “Council of States” indicates the federal character of the House and a representative who is not ordinarily resident and who does not belong to the State concerned cannot effectively represent the State.
However, the Supreme Court upheld the said amendment and rejected the above contentions. It was held that the said amendment to Section 3 of the Representation of the People Act, 1951 cannot be assailed as unconstitutional and that it passes muster in view of legislative competence. It was also held that the said amendment does not transgress the provisions of Part III of the Constitution (which deals with fundamental rights), nor for that matter any other provision, express or implied, of the Constitution. The Supreme Court held that the requirement of “residence” in a state cannot be read in Article 80(4) of the Constitution which deals with the manner in which the representatives of that state are to be elected for Rajya Sabha.
Thus, in view of the aforesaid amendment to the Representation of the People Act, 1951, and the aforesaid judgment of the Supreme Court, it is now possible for an outsider to get elected as a Rajya Sabha member from a state. Residence in that state is not a binding requirement for being elected to Rajya Sabha from that state. Such person can be an elector registered in any Parliamentary constituency in India, be it from that state or from any other state or union territory.
In my view Kuldip Nayar’s position was right. The Supreme Court should have accepted accepted it in the long term interest of the rule of law. Accepting illegality as fait accompli is not the role expected of the Supreme Court. In the term “Council of States” the definition of the State and who should represent a particular state (aresident of State) is is very well there. I hope, the Supreme Court , at some point of time, review this decision and restore and respect the original wording in the Constitution and its spirit.
Professor B. Vivekanandan.