The Forgotten Case Of Federalism In Punjab

Posted by Shraddha Upadhyay
February 3, 2017

Self-Published

As Punjab goes to poll this week to choose a new political establishment, the fate of Rajya Sabha members from Punjab remain unresolved. On February 24, 2016, a notification was issued by the Election Commission that said that the term of the present Rajya Sabha members would be subject to the decision of the Supreme Court in the case of Election Commission of India v. Devesh Chandra Thakur[2].

The election to all the seven Rajya Sabha seats from Punjab took place from April 2016 – June 2016. The constitutional mandate as laid down in Article 83, read with section 154(1) of the Representation of People Act, 1951, says that the tenure of Rajya Sabha members shall be six years. Accordingly, the tenure of newly elected Rajya Sabha members from Punjab would expire in April – June 2022.

Now, the bone of contention is that the tenure of the current Legislative Assembly of Punjab would expire in mid-March 2017 and a new assembly will have to be constituted before that. The tenure of the newly elected Vidhan Sabha would expire in March 2022 whereas the tenure of the Rajya Sabha members from Punjab would expire in April-June 2022. This will lead to an extraordinary situation where the newly elected Legislative Assembly of the State would not get a chance to send any member to the Rajya Sabha unless there is a casual vacancy. This violates the constitutional objective of the Rajya Sabha being a truly representative body that reflects the mood and changes of Legislative Assembly and the people.

Further looking at the peculiar political situation in Punjab where anti-incumbency is high, and there is a possibility of a complete metamorphosis of the power equation, this could lead to non-representation of Punjab on the central level and thus infringe upon the federal spirit of the nation.

Disturbance in the biennial cycle of elections

Article 83(1) of the Constitution lays down that the Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

This has not been followed in Punjab since 1998 when the elections to all the Rajya Sabha seats took place together for the very first time.

This principle of holding separate elections to fill vacancies arising under different categories was applied by the Election Commission at the time of holding biennial elections in the state of Punjab till 1992.

Three seats of representatives of that state fell vacant in the Council of States on April 3, 1988, and two further vacancies of such representatives arose on April 10, 1990. These five vacancies could not be filled in 1988 and 1990 because there was no legislative assembly in that state during that period.

Subsequently, after six years, when these five seats again fell vacant on April 11, 1998, on the expiration of the term of office of the members chosen in April 1992, the Commission decided to hold two separate elections, though adopting a common schedule for both the elections.[3]

It was challenged in the court of law at different points in time, but it did not lead to any serious debate, and the petitions were dismissed[4]. Therefore since 1998, the practice has been to hold the elections together for all the seven seats.

Right of representation and Federalism

Article 80(4) says that the right to elect the representatives to the Council of States rests with the elected members of the legislative assembly of a particular State. This right can be curtailed only by the restrictions imposed by or under the Constitution[5].

The object of this article is to give representation to the hopes and aspirations of the minority groups in the State assembly, but that is no ground to hold that scats falling in different categories should be clubbed together for holding one election for the same.[6]

The word “representative” here means a person chosen by the members of the Legislative Assembly of the state and not any person simply domiciled in the State[7]. The situation is Punjab is a blatant violation of this principle.

The present electoral pattern for Rajya Sabha directly strikes at the federal structure of the Indian polity. The role of an Upper House like the Rajya Sabha is important because of the political diversity in India[8]. It gives representation to the States in the revising chamber of the Parliament.

This ensures that even a majority ruling party in the Lok Sabha cannot dictate the Parliament and has to stand the test of approval in the Rajya Sabha.[9]

In this case, the new Assembly of Punjab will not get a chance to elect any member of the Council of States, and it will thus prevent the changing aspirations of Punjab from reaching the centre of the democracy.

Here it is relevant to consider the purpose for which Rajya Sabha was constituted. There was a fierce discussion in the Constituent Assembly[10] about the importance of a revising chamber in a democratic India and finally, a bicameral legislature was chosen as a federal system was considered to be the most suitable form of Government for a country like India with myriad diversities.

A single directly elected house, that is, the Lok Sabha was not thought enough to meet the challenges awaiting independent India. Therefore, a second chamber known as the ‘Council of States’ was constituted with an entirely different composition and manner of election from that of the Lok Sabha where every two years, the candidates change. As Chairman M. Hidayatullah put it, “Like the slough which certain creatures shed”, the Rajya Sabha too… ‘‘casts off a part of itself ”.”[11]

The Way Out

Now the question is how to correct this situation? Should the Judiciary intervene or can it be corrected only by a constitutional amendment? It is important to understand the legal framework of Rajya Sabha to answer these questions. In the exercise of the power conferred by Article 83(1), Representation of People’s Act, 1951 was enacted by the Parliament. Section 154(1) of this Act specifies that the term of a member of the Rajya Sabha is six years.[12]

However it was to be subject to the condition that upon the first constitution of the Rajya Sabha the President shall, after consultation with the Election Commission of India (ECI), make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in biennially.[13]

This cycle for ensuring two-yearly elections to the Rajya Sabha has been followed religiously in Punjab[14]. The anomaly arose only after 1988 when the biennial elections ceased to take place in Punjab while they continued to be the custom in other States. This matter was discussed by the Patna High Court last year in the case of Chhaya Sarkar. However, that was in respect of the Legislative Council elections[15]. The High Court gave certain directions to ensure biennial elections happen but after that, the Election Commission of India moved to the Supreme Court to appeal against the impugned judgment and presently the matter is sub judice[16].

The most logical way out of this unconstitutional situation seems to be the curtailment of the term of the members. One, because the curtailment of the term of the Rajya Sabha members has been sanctioned by Article 154(2) where the President can make an order providing so in the case of first Council of States so as to provide for the regular operation of the cycle of retirement[17].

There is no reason as to why it cannot be used again when there is a patent illegality defeating the constitutional objective[18]. The terms of Rajya Sabha members have been regulated every time there has been a reorganisation of states[19]. The purpose is to stand the test of Article 83(1).[20]

The case is further strengthened by the press release of the Election Commission which mentioned therein that the term of elected members from Punjab would be subject to the decision of the Supreme Court in the concerned matter[21]. This makes it clear that there is no bar to judicial interference in this matter. Further, the Election Commission in its affidavits rather seems welcoming of the reform[22].

About constitutional amendment, the High Court said that Devesh Chandra Thakur & Anr v. The Union Of India & Ors[23] that neither the Election Commission nor the Legislative Council looked into the law as to whether it was permissible for them to hold elections en bloc. The court further added that when they did that without an amendment, they cannot take that plea to bring about orderliness and compliance. Further, the State’s action was being thrown under the carpet and intended to be thrown out based on technicalities.[24]

[1] Press Note No. ECI/PN/41/2016, available at http://eci.nic.in/eci_main1/current/PN41_04052016.pdf

[2] Election Commission of India v. Devesh Chandra Thakur, SLP(C) No. 17123/2015 (http://supremecourtofindia.nic.in/FileServer/2015-07-06_1436171094.pdf)

[3] Rama Devi, V.S. and Mendiratta, S.K., How India Votes: Election Laws, Practice and Procedure (3rd Edition), LexisNexis, New Delhi, 2014.

[4] Punjab Congress Committee v. Election Commission of India and Ors, Writ Petition No. 3681 of 1998; Rabinder Singh Sohil v. Union of India and Ors., CWP No. 7476 of 1999; Rabinder Singh Sohil v. Union of India and Ors., Civil Appeal No. 2562 of 2001.

[5] Raj Bala v. State of Haryana, Writ Petition (Civil) No. 671/2015 (http://supremecourtofindia.nic.in/FileServer/2015-12-10_1449739272.pdf).

[6] A.K. Walia v. Union Of India And Ors., 1994 IAD Delhi 313 (https://indiankanoon.org/doc/807324/)

[7] Kuldip Nayar v. Union of India, AIR 2006 SC 3127 (https://indiankanoon.org/doc/1903935/).

[8] Valerian Rodrigues, Revisiting the role of Rajya Sabha, http://www.thehindu.com/opinion/lead/revisiting-the-rajya-sabhas-role/article8756753.ece

[9]KC Singh, Restore principle of rotation http://www.tribuneindia.com/news/comment/restore-principle-of-rotation/203784.html

[10] C.S. Deb., 18.7.1952, c. 1481-92; and 22.7.1952, c. 1628-86 (http://parliamentofindia.nic.in/ls/debates/debates.htm).

[11] R.S. Deb., 23.3.1984, c. 193 (http://rsdebate.nic.in/).

[12] Section 154(1), Representation of People’s Act, 1951 (https://indiankanoon.org/doc/115512669/).

[13] Section 154(2), Representation of People’s Act, 1950 (https://indiankanoon.org/doc/115512669/).

[14]Hemant Kumar, Has Punjab Flouted the Rajya Sabha Poll Schedule http://www.tribuneindia.com/news/comment/has-punjab-flouted-the-rajya-sabha-poll-schedule/224188.html

[15] Devesh Chandra Thakur & Anr v. The Union Of India & Ors, CWJC No. 6132 of 2015 (https://indiankanoon.org/doc/93324092/).

[16] Bihar Legislative Council v. Union of India, SLP(C) No. 17113/2015 (http://supremecourtofindia.nic.in/FileServer/2015-07-06_1436171094.pdf).

[17] Council of States (Term of Office of Members) Order, 1952 (http://ceodelhi.gov.in/Notification/1952/The%20Council%20of%20States%20(Term%20of%20Office%20of%20Members)%20Order%201952.pdf).

[18] Devesh Chandra Thakur & Anr v. The Union Of India & Ors, CWJC No. 6132 of 2015 (https://indiankanoon.org/doc/93324092/).

[19] The States Reorganisation (Council of States) (Term of Office of Members) Order, 1956; The Bombay Reorganisation Act, 1960; The Punjab Reorganisation Act, 1966; The Goa, Daman and Diu Reorganisation Act, 1987

[20]Membership of Rajya Sabha, Rajya Sabha at work http://rajyasabha.nic.in/rsnew/rsat_work/chapter-3.pdf

[21] Press Note No. ECI/PN/41/2016, available at http://eci.nic.in/eci_main1/current/PN41_04052016.pdf

[22] Bihar Legislative Council v. Union of India, SLP(C) No. 17113/2015 (http://supremecourtofindia.nic.in/FileServer/2015-07-06_1436171094.pdf).

[23] Devesh Chandra Thakur & Anr vs The Union Of India & Ors, Civil Writ Jurisdiction Case No.6132 of 2015 (https://indiankanoon.org/doc/93324092/).

[24] Lawyers Initiative v. State of Punjab, AIR 1996 P & H 1 (https://indiankanoon.org/doc/492459/).

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