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Some questions to the Supreme Court

Monday 4 December 2006, by NAYAR*Kuldip

A former chief justice of India told me in Bangalore that he never expected the Supreme Court to become pro-establishment. He had in mind not the judgment on the sealing of commercial establishments in Delhi but the larger, Constitutional issues. His remark came after the Supreme Court’s judgment on the domicile qualification for Rajya Sabha members, but before the rejection of the review petition. The judgment had said: One, a Rajya Sabha member need not be normally a resident of the state which returned him or her through its Assembly. Two, the secret ballot system was not germane to free and fair election.

The review petition had provided the court with an opportunity to re-examine its arguments for rejection. However, the five-member bench which gave a unanimous judgment did not apply their mind and threw out the petition from the chamber itself. The judges were not obliged to consult either the lawyers or the petitioners. But it would have been better if they had done so in view of the wide criticism. A high court is obliged to consult the lawyers, but it is not the case with the mighty Supreme Court. This is strange, because both are courts of appeal and yet both have different rules to dispose of review petitions.

When I filed the petition - I did it on the 30th day to make the limitation period - I imagined that the five judges would allow enough time for the criticism to sink in and for some sort of debate to build up. But they took up the petition in less than a month, although the arrears of the cases in the Supreme Court go back to several years. In a way, the five judges have stalled any challenge to their verdict which has extinguished the very domicile qualification. But I have already heard murmurs in the states. The fire is still smouldering. Who knows when it will flare up and take the shape of demand for a full bench to reconsider the judgment!

The reason why I anticipate such an eventuality is because the five judges have given a new complexion to the Rajya Sabha, entirely different from the one the Constitution framers provided. The latter laid down that Parliament would have two Houses, one representing the states and the other people. The Houses were named accordingly: the Council of States and the House of People. The name, Council of States, left no room for confusion. It was provided that a person going to the Council of States had to be ordinarily a resident of the state he represented. How could a member who did not know the state’s language, its culture, or its ethos, be its representative?

In their defence, the judges have made three points: one, the Rajya Sabha is "somewhat secondary" to the Lok Sabha; two, the House acts as a revising chamber in the sense that the Rajya Sabha helps improve the bill passed by the Lok Sabha; and, three, in practice, the Rajya Sabha does not act as a champion of local interests. With due respect, I may point out that all three points are contrary to facts. The Supreme Court can interpret the Constitution in any manner it likes, but it cannot elucidate the provisions in such a way that it negates the letter and spirit of the Constitution.

Parliament has two Houses. Both are independent. Nowhere has it been laid down that one House is "secondary" to the other. The two have separate rules of business, separate secretariats and separate ways of conducting their affairs. Any bill, apart from the one relating to money, can be introduced in the Rajya Sabha and sent to the Lok Sabha for endorsement or vice-versa. In fact, the legislation relating to the all-India services and the states has to originate in the Rajya Sabha since the House represents the states.

When a bill can be initiated in either of the two Houses, any one of the two can "improve" it. The Rajya Sabha is not the repository of all wisdom. For the judges to say that the Rajya Sabha "helps improve the bill" is a reflection on the Lok Sabha members.

The Rajya Sabha does not act as "a revising chamber."

The discussions in both Houses are open and free. The outcome depends on the level of the debate or the points made by members. Sometimes, the bill is revised drastically. It is not the Rajya Sabha alone which does it. The Lok Sabha can also revise it. In fact, the revision is done mostly by the Lok Sabha because it is the directly elected House of the two. However, nine out of 10 bills go unchanged from one House to the other. I should know this because I have been a member of the Rajya Sabha for six years, from 1997 to 2003. Contrary to the obiter dicta by the five judges, Rajya Sabha members champion the causes of the state to which they belong. Most questions asked by members and the supplementaries are of local nature. Members raise even a minor grievance or happening which otherwise would have gone unnoticed. They use many devices to do so: short notice question, half-an-hour debate or special mention. How did the judges conclude that the Rajya Sabha was not championing local causes? Even the verbatim record of debates in the House would have made them wiser if they had cared to listen to them.

What is disconcerting is that the judges do not realise that India is a federal structure and that the states constitute the Union. Dr B.R. Ambedkar who piloted the Constitution made this amply clear in the speeches he made at the Constituent Assembly. He even clarified the residential qualification. When R. Venkataraman, who subsequently became the President of India, asked why a candidate should be the resident of the state concerned, Shyam Anand, a member, answered that it was so "because it is the Council of States." Ambedkar endorsed this by saying, "Yes, that is the reason and the other is the House of People." (I have Venkataraman’s letter to confirm this.)

What more could have been said to underline the difference between the two Houses? The Council of States has to have members who are ordinarily resident of the state concerned. Still the judges have ignored this and tried to rewrite the Constitution. They have even abolished the secret ballot system which every UN covenant has made compulsory. A piquant situation has arisen where the states have the second House. The Legislative Council will elect members through a secret ballot but the Rajya Sabha through open ballot! The question is no longer whether the court has the power to interpret and lay down the supreme law, but how it uses its authority. The nation is watching.

See online : Asian Age

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