The Electoral system, which is the bedrock of our Democracy, and ensures that we elect members to both houses of Parliament, persons who in turn govern the country and its people. Contextually, the recent Rajya Sabha elections in 8 States, with two more to come have been rather contentious, wherein filthy lucre, to the tune of crores of Rupees, is learnt to be changing hands and operates as a tool/qualification to procure membership, and as such has become the order of the day. The candidates must be adept in the modus operandi, of chicanery, fraud and mischief, in true Shakespearean style we can say “Something is rotten in the State of Denmark; the fish is rotting from the head down—all is not well at the top of the political hierarchy.”
Can we allow the upper house, to become a haven for devious, mischievous, non-performing politicians and dubious businessmen who view the election and the membership associated with it as a means to preserve their existence and maintain their relevance? Why must the system allow influential individuals to capture power and position without even meeting the basic criteria or expected standards of integrity and performance? This unique phenomena is aptly summed up by Matt Taibbi, in his celebrated work, Griftopia: ‘In a society governed passively by free markets and free elections, organized greed always defeats disorganized democracy.’
In this perilous backdrop, it is extremely important for us to examine and analyse the significance of the upper house, its role as envisaged under the Constitution by its framers and founding fathers, and its prognosis as an institution in the furtherance of Democracy, especially its possible evolution to ensure excellence in governance, as a strong pillar of the state. The growing power and status that the upper house has come to achieve in recent times is established by the fact, that deviating from age old conventions, a former Prime Minister of India chose to remain its member, rather than seek election to the lower house (Lok Sabha), due to the security it offered, during his entire tenure of 10 years as a PM. Even, Prime Minister, Narendra Modi, in his recent address to the joint session of the US Congress mentioned the difficulties he was having in the his government's travails with respect to the upper house, which functions as a source of power and position without the risk of electoral uncertainty that an election to the lower house is exposed to.
What then is the role and position of the Rajaya Sabha? N. Gopalaswami Ayyangar, (Member of the Drafting Committee of the Constitution) says:
“
The most that we expect the second chamber to do is perhaps to hold dignified debates on important issues,…calm consideration could be bestowed on the measures,…what we really achieve by the existence of this second chamber is only an instrument by which we delay action, that might be hastily conceived, and we also give an opportunity, perhaps to seasoned people who may not in the thickest of the political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with a House of the people.”
Sh. Ananthasayanam Ayyangar was of the view that ‘another house was necessary where the genius of the people could have full play.’
The Rajya Sabha, therefore was a body having a continuous existence, which would be a repository of high wisdom, due to its permanent nature, having only 1/3rd of its members retiring every two years. And the Members in general having a six year permanent tenure gives them ample opportunity to absorb themselves with long-term policy perspectives and issues that the nation requires for stability in governance. In effect, the Rajya Sabha, as envisioned by the framers, is a house designed and devised for the sagacious, elderly, erudite and experienced persons in the state, who have a proven track record of merit, with a recognised passion and capacity for service to the nation. The upper house, was to provide the sobering element to hasty legislative actions that may be undertaken by the house of the people and by creating an atmosphere of enlightened cooperation among its members in order to weld a consensus on all possible issues so that only the very best action and solutions may be prescribed in the long term interest of the nation and its people. Above and beyond the duty of due diligence and fair deliberation, the upper house is also required to maintain the interests of the various states in the spirit of a federal polity. A living example of an errant upper house has been the hastily passed legislation with respect to the division of the state of Andhra Pradesh, on the eve of a General Election. This unfortunate decision was taken, despite the shocking disruption of the live telecast of the proceedings in the House, viewed by the whole nation. This Legislative action stands challenged in the Apex Court by more than twenty writ petitions.
To further buttress the point that the members be of great erudition and excellence, Dr. Ambedkar and others agreed that the President was also to be empowered to nominate 12 members, who have achieved remarkable distinction in various fields of literature, science, art and social service. The institution of the President of India sets the tone for the kind of individuals the Rajya Sabha is expected to house. Any deviation from the standard that the Constitution establishes and that the President adheres to is nothing less than undermining the efficacy of the very document that enshrines this Union.
If we are able to find a quick-fix solution for the reform of this institution, all others may follow suit; this effort to reform would require profound thinking, research and analysis. One such initiative was undertaken by the NDA Government under the Prime Ministership of the Sh. Atal Bihari Vajpayee, which set up a ‘National Commission to review the working of the Constitution’ (NCRWC) on 22nd February 2000 under the Chairmanship of one of the ablest Chief Justices of India, Justice M. N. Venkatachalaiah. This initiative, inter alia, did examine the issue of reform of political parties and their functioning and election processes and presented a voluminous report of about 2000 pages on 31st March 2002, and before the government of the day could even flip the pages of the Report, much less deliberate on the 249 recommendations, (of which 58 require amendments to the Constitution and 86 require legislative measures), a new government came to replace the NDA, and the Govt. led by the Congress party conveniently, allowed it to gather dust as an unnecessary initiative taken by the previous government. The NCRWC in its own words accepted the following:
“The Commission agrees that a Constitution, however lofty its exhortations and sentiments be, is not a self-executing document; it requires the aid of a human agency to implement its provisions…The political traditions of the people and the spirit of constitutionalism are what make a Constitution work. Its essence is its practice…However, like all living institutions; Parliament needs to keep under constant review its structural-functional requirements as also the entire gamut of its operational procedures. Also, it has to be remembered that in parliamentary democracy just as Government is responsible to Parliament, parliament is also responsible to the people who are the supreme sovereign.”
The truth about voluminous reports in India, is that their recommendations for implementation, as is said in comic situations, ‘get lost in translation’, meaning that those trying to implement these, re-deliberate on all of them, ‘adding insult to injury’ to those eminent personalities of outstanding credentials who in the first place made painstaking efforts in preparing them. The solution to this problem simply lies in finding equally outstanding men to implement them in the least possible time, and of course the government of the day must have the necessary political will and promise to be executing those recommendations.
The NCRWC, had further taken notice, that in recent years, in full recognition of the problems that the malformation of our electoral system has created, there have been many exercises aimed at reforming it. In the last ten years, there have been at least three major formal exercises by the government addressed to electoral reforms. These are:
1. The Goswami Committee on Electoral Reforms (1990)
2. The Indrajit Gupta Committee on State Funding of Elections (1998)
3. The Law Commission’s report on Reform of the Electoral Laws (1999)
The numerous other problems addressed by the NCRWC were in the realm of misuse of money and power leading to corruption and criminalization, the overlapping of roles of elected representatives, ambiguity regarding representative character of the Members, connivance of officials, bootlegging and subversion of electoral process, lackadaisical approach towards election petitions, discrepancies in electoral rolls, etc, to name a few. Apart from these issues plaguing the electoral process, vast areas of governance and functioning of the constitutional machinery were also reviewed.
Later, the Parliament in its own wisdom, perhaps as a reformatory measure, amended the Representation of People Act 1951 and removed the requirement for ‘Secret Ballot’ and ‘Domicile Requirement’ for the Rajya Sabha, which have both been upheld since by the Apex Court. Although the domicile requirement may have become somewhat obsolete, but removal of ‘Secret Ballot’ does perhaps go against democratic norms of voting as per one’s own conscience and replaces it with political party tyranny, in which case all voting may even simply be carried out by the ‘Leader of the Party’ in that house and it could apply to all voting in every house. This method of election to the Rajya Sabha by ‘open voting’ on party lines, the individual freedom of conscience has been replaced with party hegemony and this is a dangerous precedence, especially when the stakes are as high as the power associated with the upper house of parliament!
The recent allegations in the Haryana Elections, wherein there are allegations that votes of 14 MLA’s have been in wrongfully disqualified, but there are whispers of a conspiracy and some even suggest that it was a rebellion by some party members.
So, can we find a panacea to the current impasse regarding the membership of the Rajya Sabha, which blatantly in many cases appears to be in violation of the letter and spirit of the Constitution, so conscientiously drafted by its founding fathers/framers?
The President of the Constituent Assembly Dr. Rajendra Prasad in the Debates with respect to Art-80 of Indian Constitution stated the following:
“……I desire to make an observation…In this country we require very high qualifications for anyone who is appointed as a Judge to interpret the law which is passed by the legislature. We know also that those who are expected to assist Judges are required to possess very high qualifications, for helping the Judge in interpreting the law. But it seems that members are of opinion that a man who has to make the law needs no qualification at all, and legislature, if we take the extreme case, consisting of persons with no qualifications at all may pass something which is nonsensical and the wisdom of all the lawyers and all the Judges will be required to interpret that law. That is an anomaly but it seems to me that in this age we have to put up with that kind of anomaly and I for one, although I do not like it, would have to put up with it.”
Article 84, Qualification for membership of Parliament, A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a) .......
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament
It is high time political parties, give effect to clause-c of Article 84, which has become a dead letter in the Indian Constitution, and bring clause ‘c’ into effect by suitable legislation. Political parties should make every effort to field candidates who are highly qualified/distinguished persons, with proven track record of meritorious distinction in public life. The criterion that is being applied for the 12 nominated members of the Rajya Sabha of being outstanding citizens of India, should apply similarly to others being fielded to occupy that position, through the electoral process as well. In general, career businessmen, who would be suspect of influencing the process purely for personal gain, should be disregarded. Similarly, tainted persons having a dubious past, repeated criminal record, and/or large financial liabilities to public financial institutions should be avoided. Above all, Independent Candidates with excellent track record should be welcomed.
In the year 1998, Dr G.V.G. Krishnamurthy, former, Election Commissioner of India, mooted the proposal in the Election Commission of India, to fix minimum qualifications of XIIth Class (Matriculation/High School) for the Lok Sabha, since statistics showed that about 3% are absolutely uneducated. Some Central Ministers and state ministers were not educated even up to VIIIth Std. Based upon these facts, a study was conducted by the Centre for Media and Cultural Research in order to determine as to what proportion of a sample populous was in favour of prescribing minimum educational qualifications for Members of Parliament. They study revealed that, 83.51 per cent of surveyed people, were strongly in favour of candidates to be well-educated, and wanted them to have a clean image without any criminal background. Out of this, 62.40 per cent suggested that political parties should only be made to field educated candidates, and minimum qualifications should be insisted upon, by bringing an Amendment to the Constitution. As per the last data available in the 11th Lok Sabha there were 117 non-graduates, including Inter pass and fail, matric pass/fail and Class VIIIth pass/fail. And shockingly 26 Non-Graduates in Rajya Sabha as well. Successive governments conveniently ignored these proposals, and turned a blind eye.
In fact way back in 1949 stalwarts like Dr. B. R. Ambedkar, Dr. Rajendra Prasad, Sardar Vallabhbhai Patel and C. Rajagopalachari had raised the question of educational qualifications of candidates and expressed concern about its damaging consequences, if not included forthwith. The reason they were delayed in implementation was, due to the fact large number of leaders gave up their education even at primary level to join the freedom Struggle. However, the same logic does not apply in the present times, given more than six and a half decades of independence.
The wisdom of Plato marking 40 years of age for entry into politics, should have been taken into account while prescribing the minimum age for elections to either house, or this perhaps can now be reviewed on the basis of statistics of average age and qualifications since Independence. Surely the Rajya Sabha cannot be viewed as a college or university training ground for the young progeny of powerful political leaders.
We can only bring about change if we become embodiments of idealism and follow that up with our fullest passion. The words of Suzy Kassem, in her writings Rise Up and Salute the Sun ring in our minds;
“Pick a leader who will make their citizens proud. One who will stir the hearts of the people, so that the sons and daughters of a given nation strive to emulate their leader's greatness. Only then will a nation be truly great, when a leader inspires and produces citizens worthy of becoming future leaders, honorable decision makers and peacemakers. And in these times, a great leader must be extremely brave. Their leadership must be steered only by their conscience, not a bribe.”
Needless to say these reforms can only be achieved through truly enlightened citizens of India, who would participate in a national dialogue and take a vow not to give up the cause unless the said objectives are achieved. And therefore, it would then depend upon the people of India and the intelligentsia to launch a movement for the same, which would essentially have to be through academic circles in colleges and universities, both print and electronic media and of course, most of all the legal fraternity.
(
The author is an advocate at the Supreme Court of India)
Guest Author
Prof. Rao is an Advocate Supreme Court of India.
