Strangers in the House

THE CPI(M) was the only political party which supported a petition in the Supreme Court that Rajya Sabha members had to be elected from the ...

THE CPI(M) was the only political party which supported a petition in the Supreme Court that Rajya Sabha members had to be elected from the state in which they resided. It is the House of states; the domicile qualification was basic. The Constituent Assembly debates clearly pointed out the distinction between Lok Sabha and Rajya Sabha. Even when the Congress and the BJP ganged up and changed the law, substituting the word ‘‘India’’ for ‘‘state’’, the CPI(M) opposed the amendment. The party issued a categorical statement to criticise the new law. It was a clarion call against the violation of the Constitution, both in letter and in spirit. The Rajya Sabha mirrors the states’ interests and protects them at the national level. By diluting the states’ say, the law hit at federalism, the basic structure of the Constitution.

I am puzzled by the CPI(M)’s nomination of Brinda Karat and Sitaram Yechuri to the Upper House from the state of West Bengal. Both are outstanding personalities and they will do Parliament proud. But the question is one of principle. How can the party take advantage of a law it considered repugnant to the Constitution? Could it not have waited till the disposal of the petition? The party is proceeding on an assumption the court may not uphold. Both Brinda Karat and Sitaram Yechuri are outsiders, not residing in West Bengal. Even if one were to stretch the point of residence in the case of Brinda Karat — she is a Bengali — one would not be able to justify the nomination of Sitaram Yechuri from West Bengal because he is from Andhra Pradesh. Both are residents of Delhi.

One can well imagine the Congress and the BJP hedging on a point of principle but not the CPI(M) which has never swerved from the basics. The party should not forget that the domicile qualification is something basic. The national commission appointed to review the working of the Constitution was sitting when the amendment was initiated in Parliament. The commission was of the view that the basic federal character of the Council of States (Rajya Sabha) would be affected by this move. It recommended that in order to maintain the basic federal character of the Rajya Sabha, ‘‘the domiciliary requirement of eligibility to contest elections to the Rajya Sabha from the concerned state is essential.’’ Former president R. Venkataraman, who was a member of the Constituent Assembly, has written to me urging that a candidate from the Rajya Sabha should represent the state. ‘‘During the debate in the provisional parliament, dated 11 May, 1951,’’ he says, ‘‘on an amendment to Representation of the People’s Act, Law Minister affirmed that the member of the Rajya Sabha should represent the state.’’

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Along with the election of Brinda Karat and Sitaram Yechuri, scheduled in July, four more vacancies will be filled from West Bengal, three from Gujarat and one from Goa. In all fairness, the election to 10 seats should take place after the disposal of the petition which has been pending before the Supreme Court for one and a half years. When the petition came up for hearing a few days before the vacation in May, Justice N. Santosh Hegde, who was presiding over the five-judge constitutional bench, had to disband it because he was retiring within a few days. He said that the bench would be willing to give its verdict if the hearing could be limited to two days. The petitioners agreed but both the attorney general and the BJP lawyer did not. While disbanding the bench, Justice Hegde ordered that the case should be heard early in view of its importance. I wrote to the Chief Election Commissioner (CEC) pointing out Justice Hegde’s order and requested the CEC not to announce any election for filling up of any vacant seat in the Rajya Sabha till the petition is heard and decided.

‘‘When one talks of law’s concern with justice, it is, in the ultimate analysis, the determination of what is just by those composing that society.’’ This is what the courageous Justice S. Rangarajan has said in his book, Extraordinary Justice. He was punished during the emergency — transferred to Guwahati — because he dared to release a detenue on a habeas corpus petition. He rightly points out that democracy cannot afford to tolerate moral indolence. ‘‘Judges, courts and lawyers might make law a more effective instrument of government if they pay attention to the language of morality and critical consideration of the human and variable purpose which society seeks to achieve through law.’’ Political parties cannot ignore this. In fact, the Election Commission is the most to blame. I wish it had taken the petition into account. If it had been accepted, it would have unseated some 60 members who were elected from the states in which they did not reside. Once the Supreme Court had admitted the petition and issued notices to the states, the Election Commission should not have issued notifications to fill the vacancies in Rajya Sabha and should have waited for the Supreme Court’s judgment. Despite the petitioner’s repeated requests, it has gone ahead with the elections and more than 80 members have been elected to Rajya Sabha since the petition was filed.

The attitude of the election commission is, indeed, intriguing. The petition before the Supreme Court has two parts: one relates to the domicile qualification and the other to open balloting. The commission has not objected to the first but it has sent its lawyer to the Supreme Court to oppose the second in order to uphold the secrecy of voting for a free and fair election, an essential part of democracy. The commission should have at least stopped elections on the second point. It has not done that so far. Now that the 10 vacancies in West Bengal, Gujarat and Goa are going to be filled this

July, the secrecy of ballot should be insisted on, if nothing else.