Election law

Whether residence or domicile are essential ingredients of structure and composition of the Upper House.

The key question is whether residence was ever treated as a constitutional requirement under Article 80(4). In re: Special Reference No. 1 of 2002 [(2002) 8 SCC 237], it was observed that:

“One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions.”

(ii) Legislative History The Constitution has established a federal system of Government with bi-cameral legislature at the Centre which is not something which was grafted in the Constitution for the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular constituency was considered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules. This position is also indicated by the provisions of the Government of India Act, 1935 under which the Legislature at the Centre was bi-cameral. The Lower Chamber was called ‘House of Assembly’. The Upper Chamber was called ‘Council of States’. Under the Government of India Act, 1935 (for short, the ‘GI Act’), the Council of States was a permanent body with one-third of its members retiring every third year. Sixth Schedule to the GI Act made provisions for franchise. Part I of that Schedule contained qualifications. It did not include residence as a qualification of the elector. However, there were other parts to the Sixth Schedule which dealt with certain subjects exclusive for different provinces in which there was a requirement of residence. This was under the heading ‘general requirements. However, there was no uniformity. In certain cases, residence was prescribed as a qualification (for example in the case of Central Provinces, Berar and Bengal) whereas in provinces, namely, Assam, the qualification was ‘a family dwelling place or a place where the elector ordinarily resided’. Therefore, the qualification of residence was not uniform. It depended upon local conditions. It deferred from province to province.

At this stage, we may clarify that under strict federalism, the Lower House represents ‘the people’ and the Upper House consists of the ‘Union’ of the Federation. In strict federalism both the Chambers had equal legislative and financial powers. However, in the Indian context, strict federalism was not adopted.

The Council of State under the GI Act became Council of States under the Constitution of India. This fact is important. In this connection, we have to look into the minutes of the Union Constitution Committee which recorded vide Item 21 the manner of computing weight proportional representation based on population strength. The said minutes further show the recommendation that the Upper House should include scientists, teachers etc. for which purpose, the President should be given authority to nominate. The necessity of the Upper Chamber was also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate the purpose for having the Upper Chamber. The object of the Upper Chamber as envisaged 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. Finally, on 28th July, 1947, a policy decision was taken by the Constituent Assembly that the Federal Parliament shall consist of two chambers.

In the first draft Constitution, Fourth Schedule related to the composition of the Federal Parliament. Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for the members which included citizenship and minimum age of not less than 35 years in the case of a seat in the Council of States. The said paragraph further stated that apart from citizenship and age qualifications, it would be open to the Parliament to describe any other qualification as may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution provided for the qualification of residence in a State for a candidate to be chosen to the Council of States. Clause 60 of the first draft Constitution stated that all matters relating to or connected with elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. (Emphasis supplied). However, the Fourth Schedule was omitted by the Drafting Committee. This was on 11th February, 1948. Therefore, with this deletion, the requirement of residence was done away with.

The entire discussion with regard to the legislative history is only to show that residence was never the constitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. It has been treated just a matter of qualification. Further, the legislative history shows that qualification of residence has never been a constant factor. As the legislative history shows, ownership of assets, dwelling house, income, residence etc. were considered as qualification from time to time depending upon the context and the ground reality. The power to add qualifications was given to the Federal Parliament. Therefore, the legislative history of constitutional enactments like the GI Act shows that residence or domicile are not the essential ingredients of the structure and the composition of the Upper House.

At this stage, one event needs to be highlighted. The Drafting Committee included a separate chapter under Part XIII on the subject of ‘elections’ to the draft Constitution which corresponded to Article 327 in Part XV of the Constitution. Article 290 empowered the Parliament to make laws providing for all matters relating to or in connection with elections to the House of Parliament. Ultimately, despite all objections against bicameral legislature, the Constituent Assembly took the decision to have Federal Parliament consisting of two chambers. In its report, the Drafting Committee recommended basic qualifications for membership of Parliament being a subject which should be left to the wisdom of the Parliament. Accordingly, the Drafting Committee recommended Article 68A which corresponds to Article 84 in the Constitution. This was the first time when a provision was included to prescribe qualifications which included citizenship and the minimum age subject to any other qualification that may be prescribed by law made by the Parliament. The Drafting Committee justified the inclusion of Article 68A in the following words :

“Article 152 prescribes an age qualification for members of State Legislatures. There is no corresponding provision for members of Parliament. There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the prescription of educational and other qualifications for membership both of Parliament and of the State Legislatures should be included in the Draft. If any standard of qualifications is to be laid down for candidates for membership it must be so precise that an election tribunal will be able to say, in a given case, whether the candidate satisfied it or not. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best course would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of India.”

To sum up, the legislative history indicates that residence is not a constitutional requirement of clause (4) of Article 80. Residence is a matter of qualification. Therefore, it comes under Article 84 which enables the Parliament to prescribe qualifications from time to time depending upon the fact situation. Unlike USA, residence is not a constitutional requirement. In the context of Indian Constitution, residence/domicile is an incident of federalism which is capable of being regulated by the Parliament as a qualification which is the subject matter of Article 84. This is borne out by the legislative history. [ Supreme Court of India in Kuldip Nayar vs Union Of India & Ors decided on 22 August, 2006 ]


Categories: Election law

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