The Congress party has announced its candidates for the Rajya Sabha polls from seven states. The party has endorsed the candidature of Rajeev Shukla and Ranjeet Ranjan to contest elections from Chhattisgarh. Both Shukla's and Ranjan's candidature from Chhattisgarh has sparked a discussion over the legality and logic of them running as nominees from a state which they don't belong to.

In more technical terms, their domicile status has been called into question given their purported lack of association with the state and their resulting and alleged lack of understanding of Chhattisgarh. No doubt both Shukla and Ranjan are accomplished individuals in their own right, but the question here is more systemic and technical than anything to do with their individual credentials as potential Rajya Sabha members.

Shukla has many feathers in his cap. He was born and raised in Kanpur, Uttar Pradesh. As a journalist, commentator, chairman of the Indian Premier League (IPL) and vice-president of the Board of Control for Cricket in India (BCCI), he carries a myriad of experiences. He also served as a Rajya Sabha member earlier.

The second nominee Ranjeet Ranjan also doesn't hail from Chhattisgarh. She was born in Rewa, Madhya Pradesh, and grew up in Jammu. She obtained her education in Punjab and was elected to Lok Sabha earlier from Supaul, Bihar.

To understand the importance of the domicile status of Rajya Sabha candidates, it is worthwhile to delve into the "object" of the Rajya Sabha, which is called the 'Council of States'.

The second chamber of the Indian parliament has its origins in the Montagu-Chelmsford Reforms of 1919. The Rajya Sabha is intended to function as a permanent house since it is never dissolved like the Lok Sabha. However, one-third of its members retire every two years (Article 83). The Rajya Sabha also serves as a revisionary house (reviewing legislation passed by the Lok Sabha) (Article 107), ensuring continuity in the underlying policies of laws passed by parliament.

Additionally, the Rajya Sabha plays a critical role in institutionalising the federal principle of power-sharing between the Union government and states.

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The debate in the Constitutional Assembly underlines the primary role of Rajya Sabha, where its advocates argued that an upper/second chamber would "provide a voice for the states in legislative decisions" and prevent hastily passed, adventitious legislations, discouraging hurtled legislative decisions.

Does a person have to be domiciled in a state to be elected to Rajya Sabha?

The straight answer is no. Article 80 (1) (b) of the constitution contemplates that the Council of States shall consist of "not more than two hundred and thirty-eight representatives of the States [and of the Union territories]".

In the year 2003, Section 3 of the Representation of People Act, 1951 (RP Act) was amended. Section 3 of the RP Act stipulated that for a person to be a member of the Rajya Sabha, he or she needs to be an "ordinary resident" in the state, from which he or she is contesting the election. The amendment substituted the word "state" with "India".

Thus, the status-quo stands as “[a] person shall not be qualified to be chosen as a representative of any State [***] or Union territory in the Council of States unless he is an elector for a Parliamentary constituency [in India]].”

This amendment made it possible for political parties to open the floodgates for outsiders (of a state) to get elected to Rajya Sabha. Many legal suits filed in the aftermath of the said amendment challenged it, stating that it essentially "changed the very character of the Council of States".

The amendment was eventually challenged in court (Kuldip Nayar v. Union of India, (2006) 7 SCC 1) on the ground that it affected the federal features and violated the basic structure of the constitution.

"Rajya Sabha," it was argued, "is a reflection of the federal character of the country, its composition having been shaped by the popular will of the various State legislatures". The requirement that Rajya Sabha members must be electors registered in the state they represent was in keeping with the purpose for which Rajya Sabha was created – to provide representation to the various states within the constitutional framework, it added.

The petition argued that the nomenclature (“Council of States”) was a reflection of the federal character of Rajya Sabha and that a candidate by being elected merely by the members of the state legislative assembly did not ipso facto become the true representative of that state – unless the candidate was in living contact with areas within the state.

"A representative not ordinarily resident and not belonging to the state concerned cannot effectively represent the interest of the state as he would not be aware of the living, ground realities of the State,” the petitioner had contended.

However, the Supreme Court quashed the petition saying that the state has the right to be represented in the Upper House by its chosen representative. It cannot be said that federalism is affected by doing away with the requirement of domicile.

Therefore, in the past, several members of Rajya Sabha circumvented the domicile criterion to get elected from states which they don't belong to.

The list includes former prime minister Manmohan Singh and other Congress leaders H.R. Bhardwaj and Kapil Sibal (who quit the Congress party recently). Even prominent Bharatiya Janata Party (BJP) leaders L.K. Advani, Arun Jaitley and O. Rajagopal were elected to Rajya Sabha from states with which they shared no connection.

The legislative history highlights that – as per the Government of India Act, 1919 – it was not necessary to be a resident of a particular region to be its representative member in the parliament. This position was also followed in the Government of India Act, 1935 where there was a bi-cameral legislature at the Centre.

In contradistinction to the above two positions under the statutes, Paragraph 6 of Part 1 of the Fourth Schedule of the first draft of the constitution stated that to be a member of the Council of States, the member must be a resident of the state, from which s/he is contesting.

However, the draft committee deleted the Fourth Schedule. With this deletion, the constitutional requirement to be a resident of the state by the member representing the same was done away with. Therefore, it was contended that such a positive omission of the Fourth Schedule showed that the domicile requirement to be a member of the Council States was never a "constitutional requirement".

Thus, essentially, the objective of the Upper House or the Council of State was to “hold dignified debates on important issues and to share the experience of seasoned persons who were expected to participate in the debate with an amount of learning".

In conformity with the said objective, it is necessary to have a member who is competent and sufficiently knowledgeable. Therefore, legally, residency or domicile is not an essential criterion.

An analysis of the legislative history, the loose existence of definite qualifications for obtaining domicile of a state, and the objective behind the creation of Rajya Sabha, the Supreme Court held that for a member of the Council of States to be a domiciled citizen of the state that he or she is representing is not a constitutional requirement under Article 80(4) of the constitution.

Also read: Rajya Sabha, the Safety Valve of Indian Federalism

Since it is a mere qualification and not a constitutional requirement, therefore removal of the domicile requirement for a representative of a state in Rajya Sabha does not distort or alter the "federal character" of the Upper House.

While the above judgment of the Supreme Court put an end to the legal debate of the domicile status not being a constitutional mandate for a member to represent a state in Rajya Sabha, none can deny the political debate it sparks on the question of representation of a particular state.

An exemplary case of such a politico-moral dilemma is that of Hema Malini contesting the election from Karnataka time and again sparking the insider-versus-outsider debate. The 2003 amendment to the RP Act, 1951 legitimised the “carpet-bagging” vogue in the Rajya Sabha elections.

Is the approval of non-Chhattisgarhi candidates from Chhattisgarh justifiable?

The legal position allows the local Congress government to approve non-Chhattisgarhi candidates for Rajya Sabha.

While some may justify the politico-moral debate with the legal arguments, it is pertinent to note the words of the advocate who appeared for the appellants in Kuldip Nayar’s case, who argued that the domicile requirement was such an intrinsic part that the removal of it would affect the federal structure, which is one of the basic features of the constitution.

Senior advocate Fali Nariman further contended that the attributable distinction of Rajya Sabha as a “Council” of “States” has been diluted by the removal of the mandate of a member belonging to a state to represent it in Rajya Sabha.

In line with Nariman’s arguments, I believe that Article 80(4) which uses the words “representatives of each state” makes it very plausible that a person who is elected must first be qualified as a representative of the state in question.

Although the Supreme Court remained unfazed by Nariman’s contention, the denial of equal representation of the states in the Rajya Sabha using a literal interpretation of the words in the constitution and tagging it as just a 'second chamber' to hold dignified debates leads to a very precarious coda that alienates its importance in the contribution to the federal character of the Indian democracy.

In a more logical discourse, the approval of the non-Chhattisgarhi candidates dilutes the importance of this representation of the real residents. It is important to note that the Indian population is not homogenous and states were created based on linguistic and cultural heterogeneity in the plurality of homogeneous species.

Thus, it is going to be a time-consuming and herculean task for an outsider to comprehend the locals' problems. The rural-tribal ecosystem of Chhattisgarh is a cocktail of several factors. An emotional peroration would make one say that it is only a son or a daughter of the soil who can be a strong voice at the national level.

The Congress party's list also limits the opportunity for local leaders to showcase their talent and prowess in the corridors of power in the national capital.

Chhattisgarh chief minister Bhupesh Baghel's aspirational "Gadhbo Nava Chhattisgarh" emphasises the importance of putting locals at the forefront of governance and politics. Any attempt to circumvent this is nothing short of a betrayal of the heart and conscience of Chhattisgarh.    

Shikhar Shrivastava is an alumnus of the Hidayatullah National Law University, Raipur. He is a lawyer by passion and education, with his interests in policy and politics.

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