'If the domicile clause is gone, why have the RS?'

Former Rajya Sabha member and columnist Kuldip Nayar's petition in the Supreme Court challenging an amendment to the Representation of the People Act, 1951, which allows anyone who is a citizen of India to be elected to the Rajya Sabha from any state even if he is not a resident of that state, has caused a sensation in political circles and anxiety those who hope to make it to the House of Elders.

In an exclusive interview with Chief Correspondent Tara Shankar Sahay, Nayar explained why he filed the petition.

What prompted you to move your petition in the Supreme Court challenging the amendments to the Representation of the People Act?

It was on April 28, 2003, that I opposed the amendments to this act in the Rajya Sabha. I had decided that some day I would challenge it and so I wrote an article in The Indian Express on it. And then I wrote a letter to the (then) chief justice of India V N Khare, because I felt that the amendments altered the basic structure of the Constitution and adversely affected federalism.

Justice Khare called me and issued notice to all states and the Union to examine whether my contention was wrong. What prompted me was I was in the House and I was in the select committee where the amendments were mooted. And then it occurred to me: why not approach the Supreme Court? Which I did.

Could you briefly explain what the relevant amendments are?

According to our Constitution, members of the Rajya Sabha are elected indirectly, that is, the members of the state assemblies elect the Rajya Sabha members. For this, (one) qualification is that the candidate should be a resident of the state that is sending (the member) to Parliament's Upper House. The spirit of the Constitution is the federal structure and the Constitution framework says the Upper House will be a Council of the States and the Lower House will be the House of the People.

Somebody asked (Father of the Constitution) Bhimrao Ambedkar, who was piloting the constitutional act, about the Rajya Sabha and he said the states are represented in the Rajya Sabha and the people in the Lok Sabha.

What else?

Take the all-India services. All laws pertaining to them have to be initiated in the Rajya Sabha because they concern the states. Earlier, it was stipulated that the candidate for the Rajya Sabha had to be an ordinary resident in the state. But in the amended version, instead of the word 'state', they put the word 'India.' So the very purpose is lost, because the (new) purpose is to bring anybody to the Rajya Sabha from anywhere.

The second thing they (the Atal Bihari Vajpayee government) did was to abolish the secret ballot. The (tactical) repercussion is that if I have the money and political clout, I can bring all the Punjabis into the Rajya Sabha. Because there is no bar if the secret ballot is gone and the domicile clause is gone. If that was the purpose of the Rajya Sabha, I don't think it should have been constituted in the first place.

(But) Constitutional amendments cannot otherwise be questioned and I knew my objection had to be based on something which altered the very structure of the Constitution.

So you were quite sure of what you were doing.

Yes, according to the Keshavanand Bharati (Constitutional amendment) case (of 1973), federalism is one of the (features) that constitute the basic structure of the Constitution.

What happened next?

I wrote to the Election Commission, sending it a copy of my petition, and also apprised it that it was fixed (for hearing in the Supreme Court) on July 12, 2004, and till then it should not hold any election to the Rajya Sabha. But the Election Commission did not bother. I said look here, if you have filled the Rajya Sabha vacancies, a precedent would already have been set. Then I went back to the Supreme Court and requested the apex court that it should give me a stay order so that the Rajya Sabha election should be deferred till my petition is heard.

Why do you think the Election Commission did not respond to your petition?

Well, the Election Commission is generally very conservative and orthodox. They go strictly according to the law, even if it has been challenged.

Your critics say you deliberately waited all these days to file your petition when the Manmohan Singh government is still just settling down in office.

No. Earlier I had gone to Bangladesh and so (on June 4) when they (the Election Commission) issued a notification for the Rajya Sabha polls, I was in the Supreme Court and so I filed the petition.

How do you respond to criticism that your petition is going to stall the electoral process?

It doesn't stall the electoral process because if these 60 people (the number of Rajya Sabha seats for which elections are to be held) were to join the House on July 8 or thereabouts, my petition is on July 12. The heavens would not fall if they were to wait for seven or eight days. Besides, my plea is that the RS members should belong to the state from where they are being sent to the House. I say, get the people from the state, that's all, not outsiders.

What about Prime Minister Manmohan Singh? He is a Rajya Sabha member from Assam.

No, no, Manmohan Singh's case is different. It has already been upheld by the Supreme Court.

Do you think there is any chance of your petition blowing up into a constitutional crisis?

No, I don't think so. Even if these 60 members are not there in the Rajya Sabha, there are 200 other members, they can carry on. During the Emergency, the Lok Sabha was shorn of its strength. Somebody went to the Supreme Court and the apex court said the House was duly constituted and it could go on.

What is your parting take on this controversial petition of yours?

I feel very much vindicated that the Supreme Court has come to my help. Not only that, I have written to West Bengal Chief Minister Buddhadeb Bhattacharya and I told him that his party [the Communist Party of India-Marxist] supported me on this crucial issue, so you should ensure that I receive assistance in my endeavour.

The Leftist MPs may be with you on this issue, but what about the other states?

They will have to spell out whether they agree with my petition or not. I am sure I will get a lot of support from the states because they don't want to be rubber stamps.

Since when did this trend gain prominence?

I believe that for the first 10 years since Independence it was all right. Then it increased to 2 percent; lately it was 8 percent; now it seems the floodgates are being opened.

Image: Uttam Ghosh