Last Thursday, 26 March 2020 elections for 55 seats were scheduled to take place due to the vacancy of seats in April 2020. Out of the 55 seats 37 candidates had already been selected without any contest, and elections for the remaining 18 seats across seven states were pending, but on Tuesday, 24 March, the Election Commission of India announced the postponement of the scheduled elections. The announcement came a day after both Houses of Parliament had been adjourned sine die given the current crisis caused due to the outbreak of the novel coronavirus. The authorities said that the next date for holding the election for the remaining 18 seats will be taken based on the prevailing situation.
INTRODUCTION TO RAJYA SABHA
The Council of States, or Rajya Sabha or the Upper Chamber or the Council of States acts as a chamber of revision over the Lok Sabha. The Rajya Sabha is constituted by indirect elections, and it is not the responsibility of the Council of Ministers. Its function is therefore somewhat secondary to the Lok Sabhas. While Rajya Sabha is intended to serve as a chamber where the States are located, but in reality, it does not serve as a defender of local rights. Also though the members of Rajya Sabha are chosen by the State Legislative Assemblies, they vote not at the behest of the State concerned but according to their views and party affiliation.
COMPOSITION OF RAJYA SABHA
Article 80 of the Indian Constitution talks about the composition of the council of States. Article 80(1) further limits the maximum strength of RS to 250. Of these, 12 members are nominated by the president from amongst persons having special knowledge and practical experience in different fields listed under the clause(3). Elections to 1/3 of these seats occur every 2 years. The use of the terms ‘not more than’ in sub-clause (b) and the omission of the same in sub-clause (a) leads to the fact that the designated members are 12, while the value of 238 is merely a restriction to the number of representatives of States and UTs; the value of 238 in the distribution of seats to States and UTs is not expected to be achieved. A purview of the Fourth Schedule, which allocates seats in the Council of States, clarifies this picture. In all, we have 233 members from the States and UTs in Rajya Sabha, and 12 candidates, taking the House’s overall number to 245.
ELECTION PROCESS TO RAJYA SABHA
In regards to the election process article 80 of the Indian constitution itself facilitates that. Article 80(4) on one hand facilitates the manner of election for the representatives of states, on the other hand, clause(5) facilitates the manner of election for representatives of UT’s.
For the election of representatives of states article 80(4) provides that, the elected members of the State Legislative Assembly elect the representatives of the state in the Rajya Sabha. It must be important to note here that, it is only the elected MLAs who are eligible to vote in the election of Rajya Sabha members. Nominated MLAs and MLCs (in States where there is a Legislative Council) cannot take part in these elections. The election is conducted according to the Proportional Representation system by means of a single transferrable vote.
In this system, the voter ranks the candidates contesting election in order of his preference. In the election process, each elector (MLA’s) is required to indicate his preference by marking 1, 2, 3, etc against the names of the candidates. Thus, electors can indicate as many preferences as the number of candidates contesting the election. In the first phase, the first preference votes are counted. In case a candidate secures the required quota, he is declared elected. In case no candidate secures the required quota, the process of transfer of votes is set in motion. The ballots of the candidate securing the least number of first preference votes are canceled and his second preference votes are transferred to the first preference votes of other candidates. This process continues until a candidate secures the required quota.
Now, after counting the votes the person with the majority of votes wins the election. A question arises here i.e. how to decide the majority no. of votes required for a candidate to secure a Rajya Sabha seat, and for answering that there is a prescribed formula that is used to find majority no. of votes for securing a seat:- [(NUMBER OF MLA’S * 100) / (NUMBER OF VACANT RAJYA SABHA SEATS + 1)] +1
Now for better understanding let’s take an example here for Rajya Sabha seats from the state of Maharashtra. There are 6 Rajya Sabha seats for the state of Maharashtra and it has 288 MLA’s so the minimum votes required for a candidate to be elected would be:- [ (288*100) / (6+1) ] +1 = 4115, which means that for a candidate to secure a seat he/she needs the minimum votes that are required is 4115, or in other words support of 42 legislators.
Articles 84 and 102 directly deal with the qualifications and disqualifications for the membership of Parliament. To be a member of either House of Parliament, one shall fulfill the qualifications under Article 84 AND shall not be disqualified under Article 102.19 It must be kept in mind that the qualifications and disqualifications equally apply to both elected and nominated members. Thus, the power of the President to nominate members to Rajya Sabha does not give him the power to nominate such members who do not fulfill the qualifications for or stand disqualified from being members of the Rajya Sabha.
Qualifications for being a member of Rajya Sabha: Article 84 provides the following
Qualifications for being a member of Rajya Sabha: article 84 of the Indian constitution with regarding to qualifications provides that:-
1, must be an Indian citizen
2.must be less than 30 years of age
3. must possess qualification prescribed in this behalf under any law made by parliament.
A person to be qualified to be chosen as a representative of State or UT to Council of States shall be an elector in a Parliamentary Constituency in India. It is to be noted at the outset that the requirement for being an elector is expressly made only for the elected members and not for nominated members.
Until 2003, it was required by the virtue of section 3 of the Representation of People’s act,1051 that the representative must be an elector of a parliamentary constituency in that State’. The words in quotes were replaced by the Representation of the People (Amendment) Act, 2003 with the words ‘in India’. Consequently, any elector from any part of India is qualified to be elected from any State or UT. This change was challenged in Kuldip Nayar v. Union of India, on many grounds including violation of federal principle and principle of representation of States in Parliament. Rejecting all the grounds, the court unanimously held that ‘it is no part of the federal principle that the representatives of the States must belong to that State.’ The words ‘Representative of Each State ‘ under Article 80(4) of the constitution only refers to members of the council of states and do not show any other concept.
Disqualifications for membership: article 102 of the Indian Constitution with regarding to disqualifications provides that a candidate should stand disqualified:-
1) a) if hold any office of profit under the Govt. of India or any State Govt. other then an office declared by the president not to be disqualified,
b)if he declares unsound by a competent court of law,
c) if he is an undischarged insolvent,
d) if he is not a citizen of India or has voluntarily acquired citizenship of a foreign state,
e) disqualified by law made by the parliament
2) And if he is so disqualified under the Tenth Schedule.
It shall be further noted that if any questions arise on the on a member of either house of the parliament has subjected to any of the disqualifications under article 102(1), he shall be referred for the decision of and his decision shall be final. The President shall take such a decision on the opinion of the Election Commission.
Rajya Sabha being the council of states has an important responsibility on its shoulder as a part of the legislative body of India ranging from making laws to revising, checking, formatting, giving suggestions to laws made by the lower house. Since coming to power in 2014, the BJP, has been on a winning spree in assembly elections, expects to win significant numbers of seats, especially in states like Maharashtra and Uttar Pradesh. The BJP currently has 58 Rajya Sabha seats, while Congress has 54. So this election is going to be a major deciding factor for upcoming laws and policies in India.
Author Details: LAVISH SHARMA (Institute of Law, Nirma University)
The views of the author are personal only. (if any)