SC notice to Centre on poll law amendment

MANDATE 2004

The Supreme Court yesterday issued notices to the Centre, the attorney-general, all states and Union Territories on a petition challenging a recent amendment to the election law, which had dispensed with the requirement of domicile for candidates contesting Rajya Sabha elections.

The notices were issued by a three-judge Bench headed by Chief Justice VN Khare on a letter written to the court by veteran journalist and former Rajya Sabha member Kuldeep Nayar, who challenged the Representation of the People (Amendment) Act, 2003.

Treating Nayar's letter as a PIL, the court asked the respondents to file their reply by July 12. Nayar had challenged the amended Section three of the Act which also introduces the secret ballot system for Rajya Sabha elections.

Nayar submitted that the amendment has led to a strange situation where a person from Punjab will be representing a state like Assam about which he/she may not know anything.

The veteran journalist, who recently retired from the Upper House, argued that Federalism was a part of the basic structure of the constitution as laid down by the apex court in the Keshvanand Bharti case and the amendment was contrary to it and therefore liable to be struck down.

He submitted that some 75 members, roughly one-third of the total 250 members of the Upper House, were due to retire this year and the issue needed to be decided on a priority basis.

Nayar urged the court to stay the Rajya Sabha elections due in July this year or decide the case prior to it.

However the bench, which also included Justice S B Sinha and Justice S H Kapadia, refused to issue any order on this point saying it will be considered by the court on July 12, the next date of hearing.

The court asked Nayar to file the grounds on which he wanted the 2003 amendment to be declared unconstitutional.

Nayar submitted that under Article 84 (c) of the Indian Constitution it was laid down in the Representation of the People Act that a candidate to the Rajya Sabha should ordinarily be a resident of the state concerned.

"By dropping the requirement, the Parliament has sought to change the basic structure of the Constitution," Nayar said in his April 26 letter to the Chief Justice of India.

He submitted a copy of his article published in the Indian Express in which he had highlighted the shortcomings of the amendment.

Nayar drew the attention of the court to a letter written to him by former President R Venkataraman, who was a member of the provisional Parliament, agreeing with his views on this point.

In his letter to Nayar, Venkataraman said that on May 11, 1951 during a debate on an amendment to the Representation of the People Act, the then Law Minister Dr B R Ambedkar had "affirmed that the member of Rajya Sabha should represent the state."

The amendment to the Act, which came into force on August 20, 2003, hit at the root of the federal structure of our democratic system, Nayar said.

Nayar, who graduated in law from Lahore in 1947, cited the example of the United States where Congressmen and Senators were required to be inhabitants of states concerned.

Unlike Lok Sabha (House Of The People) for which candidates are not required to be inhabitants of a particular state or Union Territory, domicile was specifically made a pre-requisite in the original Act for candidates contesting Rajya Sabha (Council of States) elections as they were suppose to represent their respective states, Nayar argued.

Nayar pointed out that even the Constitution Review Commission, headed by former Chief Justice of India M N Venkatchaliah in 2002, expressed its view against doing away with the domiciliary qualification for being elected as a representative if any state or Union Territory in the Rajya Sabha.

Discussion on the amendment to the Representation of the People Act, which ultimately got enacted in 2003, was going on when the commission was undertaking the review of the working of the constitution.

The commission, which also had Attorney General Soli J Sorabjee as one of its members, was of the view that the basic federal structure of the Upper House will be defeated by this move, Nayar told the court.

"In order to maintain the basic federal character of the Rajya Sabha, the domiciliary requirement for eligibility to contest elections to Rajya Sabha from the concerned state is essential," the Commission had recommended.