It was brave of Chief Justice R.C. Lahoti to have said that it is the duty of the judiciary to ensure that laws framed by the legislature were in conformity with the provisions of the Constitution. There are numerous examples where courts have rectified the mistakes which Parliament and state legislatures have made while passing bills. The Constituent Assembly's chairman, Dr Rajendra Prasad, had himself expressed apprehensions about defective bills. In his farewell speech, he had said that the best of India's minds, meaning thereby the judges and lawyers, would interpret the Constitution but those who would make laws were not required to have any minimum qualifications. What Chief Justice Lahoti said was an assurance that the judiciary would not allow any law to violate the letter and spirit of the Constitution.
Yet, it is sad to see the courts sitting over some important matters related to the Constitution. The Supreme Court itself has pending before it a few such cases. One of them is the 18-month-old petition challenging the amended central law governing the election of the Rajya Sabha members. The Vajpayee government had passed the amendment to do away with the domicile qualification, that is, it was no more obligatory for a Rajya Sabha member to be a resident of the state from which he was elected. Not only that, the law provided that the Rajya Sabha member would be elected through open voting, a departure from secrecy of the ballot.
Both points violate the basic structure of the Constitution. According to the Supreme Court's judgement on the Keshwanand Bharti case, Parliament cannot do this. One point defeats the principle of federalism and the other of free and fair elections.
The deletion of residential requirement has negated the idea of state representation, which is the cornerstone of Parliament's edifice. The Constitution-framers were of the view that the House of People (Lok Sabha) would be directly elected, probably in an atmosphere of emotion and excitement. The states had to have their own entity (Council of States), which the people, in the heat of general election, might not take into account while voting.
If one were to go back to the debate in the Constituent Assembly, one finds that some members—K.T. Shah to name one—pleaded for the incorporation of the principle of equality among the states while distributing seats in the Council of States. Another member, Lok Nath Mishra, said: "Since the Council of States is going to represent the states, it is but fair to the states that these units should be dealt with as units and every unit is equally represented." He had the pattern of the US Senate in mind.
The Constituent Assembly did not agree to any suggestion. However, the then law minister, B.R. Ambedkar, while piloting the Constitution Bill, had assured that "the upper house represents the states". He said its resolutions would flow from and reflect the authority granted to it by the states. All bills relating to all-India services, he said, would be moved in the Rajya Sabha because the services were ultimately for the states.
Former president R. Venkataraman, a member of the Constituent Assembly, recalls: "The original intention was that a Rajya Sabha candidate should represent the state". He says that "during the debate in the Provisional Parliament, dated May 22, 1951, on the amendment to the Representation of the People Act, the law minister affirmed that the Rajya Sabha members should represent the state." By deleting the domicile qualification, the bjp-led government has made it technically possible for a political party, if it can manage the numbers, to fill the entire Rajya Sabha from one state. Open voting will ensure that.
When the amendment was under discussion in Parliament, the National Commission on the Review of the Working of the Constitution took note of it.The commission warned that any such move would adversely affect the federal character of the Council of States and had favoured the retention of residence qualification.
The delay in the disposal of the petition challenging all this has brought in the Rajya Sabha some 60 members who are not residents of the states from where they have been returned. The parties have dumped in the House whoever they wanted to oblige for political or other considerations. The Election Commission should have taken notice of the Supreme Court's warning: "Election of the members of the Council of States is subject to the result of writ petitions or orders that may be passed at the time of the final disposal of these writ petitions". The commission has only passed on the warning to the elected members. In the meantime, Chief Justice Lahoti's assurance that the judiciary would see that laws were in conformity with the provisions of the Constitution remains on paper.