The Hindu Business Line : A ticking time-bomb?<br>Domicile clause and open balloting in Upper House

Secrecy has no rationale, argue proponents of open ballotting
The core issue is to ensure "purity of election"
Removal of domicile status will allow entry for outsiders into the Upper House, say opponents of the amendment

EVEN as new members are being elected to the Rajya Sabha at regular intervals, trouble is brewing in the form of a petition that was filed before a five-Bench Constitution Bench of the Supreme Court about a year ago. Its verdict will decide whether the 2003 amendment to the People's Representation Act was in violation of the Constitution.

The Constitution Bench will examine veteran journalist, Mr Kuldip Nayar's and a former Lok Sabha member, Mr Inder Jit's petition challenging the removal of the domicile requirement clause and the introduction of open balloting for the polls in the Upper House.

In response to their petition, in June last year, a Vacation Bench of the Supreme Court had first stayed the biennial elections to the Rajya Sabha involving more than 60 candidates. However, within days, the regular Bench vacated the stay, saying it did not want to disrupt the election process that was underway. It referred the case to a Constitution Bench for final disposal. The original stay was challenged by the Union Government and the Election Commission.

This year, Mr Nayar again filed a petition requesting a stay on the July 14 elections, but in vain. He drew attention to his earlier petition pending before the five-member Constitution Bench challenging the introduction of open ballot and dilution of domicile criterion enabling candidates to contest from any state.

The amendment also stipulates that elections to fill seats in the Council of States shall be by open ballot. However, the Apex Court did not want to do anything about the Rajya Sabha elections till the Constitution Bench disposed of the petition in question.

According to Mr Fali S. Nariman, a nominated member of Rajya Sabha and counsel for Mr Inder Jit, if the court upholds the petitioners' plea, anyone elected to the Rajya Sabha without being a resident of that State, would lose his membership in the House.

Removal of domicile status would seriously prejudice this constitutional condition. Mr Rajinder Sachar, counsel for Mr Nayar, argues that the system of open ballot hits at the root of the constitutional provisions that secrecy of votes should be maintained.

The Representation of People (Amendment) Bill, 2003 amended Section 3 of the Representation of People Act by substituting the words "in India" in the place of "in that State or territory". The Act introduced a provision in Section 59 to the effect that "the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot". In his petition, Mr Nayar has argued that both features form crucial aspects of the Constitution, which, according to the Supreme Court, are beyond the purview of Parliament's amending powers.

The amendment, supported by all parties barring the Left group, is sought to be justified by the fact that on a number of occasions when people who were normally not residing in a particular State got themselves registered as voters in that State, just to contest for the Rajya Sabha.

Parliament data show that from 1988 to 1993, only 10 per cent of the members of the Rajya Sabha were elected from outside their States of residence.

Those against the amendment say it will open the gates for "outsiders" to be elected to the Rajya Sabha, thus changing its very character as the Council of States.

The Prime Minister, Dr Manmohan Singh, has been a member of the Rajya Sabha from Assam, after having acquired a residential address in Guwahati to fulfil the domicile requirement.

Other such Congress leaders include the Union Law Minister, Mr H. R. Bhardwaj, and the Science and Technology Minister, Mr Kapil Sibal, though now a Lok Sabha member. Similar candidates from the BJP camp include the former Deputy Prime Minister, Mr L. K. Advani, the former Law Minister, Mr Arun Jaitley, and the former Minister of State, Mr O. Rajagopal.

A report presented by the Ethics Committee of Parliament in 1998 explains the logic behind an open ballot. The alleged use of money power during the biennial elections in March-April 2000 was cited as another reason for the amendment, though it was criticised as having legitimised corruption by party bosses, replacing that by individual candidates.

The proponents of open ballot argue that as for members of the Legislative Assemblies secrecy has no rationale. It is basically meant for ordinary voters in the polling booth.

The core issue is to ensure "purity of election" as political parties would be in a position to take disciplinary action against legislators who cross-voted, defying the party whip.

According to the former Attorney-General, Mr Soli J. Sorabjee, the open ballot scheme is permissible constitutionally as "the system of voting by secret ballot is neither an indispensable concomitant nor a sine qua non of free and fair elections".

As the Constitution Bench is yet to take up the petition, the question is whether the legitimacy of the elections since June 2004 can be challenged if the petitioners win their case. A particular legal view is that the court cannot unseat these candidates without making them parties to the case.

Yet another view is that the verdict of the Constitution Bench will take prospective effect, thus leaving the elections held thus far untouched. It will be interesting to see how the Apex Court will view the basic features of the Constitution when the Bench takes up arguments.

If it takes an extreme view that the basic features can never be altered, then there is danger of many previous elections being called into question.

According to Constitutional and legal experts, the Bench is not likely to take such a view, if for nothing else, at least to avoid a chaotic situation in which members elected in the past violating the domicile principle may find themselves unseated.

If it takes an opposite extreme view, the Bench may dismiss the petition and uphold the amendment to the Representation of People's Act.

If, on the other hand, it takes a moderate view, then it would not disturb the elections held so far, leaving the domicile principle to take effect prospectively.

Under the circumstances, this view appears to be the best compromise.

Whatever the final outcome, the case before the Constitution Bench could well spark a Judiciary-Parliament face-off.

(The author, a former Deputy Editor with PTI, is a New Delhi-based freelance writer. Feedback can be sent to rajamani_rc@yahoo.co.uk)

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