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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

TENDULKAR IN RAJYA SABHA

Unconstitutional?

For the purpose of Article 80, ‘sports’ is out in general and Tendulkar in particular, which makes the decision to have Tendulkar in Rajya Sabha unconstitutional, says HEMRAJ SINGH.
 

TIME called him 'The God of Cricket' (May 21, 2012) while 'Master Blaster' is by now as good as his 'real name'. This quiet man lets his bat do the talking, and also the 'roaring' often enough for one to mistake the regular 'talking' for 'silence'. The same man of few words is now a member of the Council of States or Rajya Sabha, which was never made conceptually or structurally fit for games of any kind other than the 'mind games' and the 'political badminton' that our esteemed legislators play with great relish in both the Houses. So, what makes the master wielder of the willow, who always silenced his critics by wordless swing of his bat, fit for the wordy circus?

When Ashish, a close friend and a journalist by profession, asked for my opinion on Tendulkar's nomination to Rajya Sabha the very day he was nominated, I was puzzled as to why was my 'legal opinion' - and not 'general opinion' - being sought on something that did not appear to have any major legal consequences. Tendulkar is better than many others who adorn the Houses currently, or did at any time before, for that matter. But then, Article 80(3) was pointed out and I immediately realized that the issue had wider constitutional ramifications, and it was high time we treated the spirit of the concerned constitutional provision with due respect. Article 80 (3) clearly states that "the members to be nominated by the President under sub-clause (a) of clause 1 shall consist of persons having special knowledge or practical experience in respect of such matter as the following, namely:

Literature, science, art and social service."

So, can we say that the Constituent Assembly specified a few areas of expertise and left it over to Parliament to make extensions to the list as and when required?

This is a layman's question that demands and deserves an extensive legal response. To start with, the issue is not what the Parliament can do, but what the government can do because it is always open for the Parliament to add to, take from or alter the list in any way it thinks fit by a Constitutional Amendment. The real question is whether the government - the Executive - can stretch the meaning of the words by interpretation. No, it cannot because the constitutional interpretation falls in the exclusive domain of the High Courts and the Supreme Court, and the constitutional duty of the Executive is to follow the words of the Constitution going by the meaning placed on those words by the constitutional courts. Therefore, if a certain meaning does not naturally obtain from the words used and such a meaning has also not been placed upon the words by a constitutional court, the Executive cannot choose to go by such a meaning. Doing so would be an unconstitutional exercise of authority vulnerable to an adverse judicial review.

Article 80 (3) demands that the Presidential nominees to the Rajya Sabha (Council of States) must be persons having "special knowledge or practical experience" in respect of "Literature, science, art and social service." Sachin Tendulkar has "practical experience" of sports, particularly cricket, and has "special knowledge" of 'batting', being the ace batsman that he undoubtedly is.

Loosely speaking, Sachin falls in the sub-category of 'Batting' in the category of 'Cricket' within the genre (general category) of 'Sports'. And 'Sports' is not one of the fields that people with "special knowledge" or "practical experience" can be drawn from under Article 80. The Constitution does not stop at "special knowledge or practical experience" but goes on to impose further limitations by specifying the areas of human endeavour to be considered. And the Executive cannot choose to be guided only by the first part ("special knowledge or practical experience") ignoring the limitation imposed by the second part because such discretion has been clearly made unavailable by the makers of the Constitution.

The expression "special knowledge" refers to academic qualification whereas "practical experience" signifies hands-on, real-life understanding, and anybody who has either of the two in the specified areas can be a Presidential nominee. Two things are immediately clear about the intent of the Constituent Assembly behind enacting Article 80 (3). One , the inputs from such people are crucial for the formulation of sound public policies; two , these people are very likely to be apolitical, might be uninterested in holding a public office and might also not be 'popular' in the political sense of the term. Thus, Presidential nomination.

The spirit of Article 80 (3) is pretty much in line with the general spirit behind having a bicameral legislature with an upper chamber in the first place. Within the Constituent Assembly there was considerable resistance to the idea of having an Upper House, for many members felt that a second chamber might prove a "clog in the wheels of progress" without serving any significant purpose.

Mr. Gopalaswami Ayyangar, who was part of the sub-committee comprising of B.R. Ambedkar, Gopalaswami Ayyangar, K.M. Munshi and K.M. Panikkar, constituted by the Constituent Assembly to work out the details of the representations of the States in the Council of States (Rajya Sabha) 1 , explained the significance of a second chamber thus:

The most that we expect the second chamber to do is perhaps to hold dignified debates on important issues and to delay legislation which might be the outcome of passions of the moment until the passions have subsided and calm consideration could be bestowed on the measures which will be before the Legislature.... Therefore, what we really achieve by the existence of this second chamber is only an instrument by which we delay action which might be hastily conceived, and also give an opportunity, perhaps, to seasoned people who may not be in the thickest of 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. 2

The Constituent Assembly agreed that there should be two chambers of the Legislature and adopted the Report of the Union Constitution Committee, with a few changes. 3

Quite clearly the basic idea behind the Upper House was to enable dispassionate, 'dignified debates' by the people of learning and experience because the popular representatives of the people might sometimes be found lacking in terms of a calm, unbiased disposition on account of their passionate espousal of social and political causes.

Presidential nominees under Article 80, viewed against the backdrop of the general idea behind the elite Upper House, appear to form a very small super-elite group comprising of such people whose inputs are so valuable for the nation that the President chooses to exempt them from the general democratic process of seeking popular mandate directly or indirectly. In other words, of all the Members of Parliament, it is only these 12 individuals who are part of the House purely on the force of their professional and personal merit, and their nomination to the Upper House is not the 'recognition' of the merit because wide recognition of merit is the pre-requisite for the nomination itself, which is also why the nomination is not an 'award' or 'recognition' and must certainly not be treated as such.

Article 67 (2) of the Draft Constitution prepared by the Drafting Committee corresponds to Article 80 (3) and reads thus:

The members to be nominated by the President under sub-clause (a) of clause (1) of this Article shall consist of persons having special knowledge or practical experience in respects of such matter as following, namely, -

(a) literature, art, science and education;

(b) agriculture, fisheries and allied subjects;

(c) Engineering and architecture;

(d) public administration and social services. 4

The Drafting Committee attached an explanatory note to Article 67 (2) that says:

The committee understands that the panel system of election hitherto in force under the Irish Constitution has proved very unsatisfactory in practice. In the absence of any other guidance in this matter the committee has provided for nomination by the President in place of election, while retaining a certain measure of functional representation. 5

The Drafting Committee proposed the number of presidential nominees to be fifteen (15), which was reduced to twelve (12) finally by the Special Committee, and instead of four groups from eleven (11) fields, there were only four (4) fields provided for the President to pick from. An Amendment to this effect was moved by Dr. B.R. Ambedkar. 6

Therefore, the Constituent Assembly carefully considered the options and chose to allow only limited discretion to the Executive, and if the discretion has to be expanded in any way, the Parliament must speak though a Constitutional Amendment.

So, from the above discussion it is evident that with respect to Article 80 (3) 'dignified debates' and 'representation' are the key words; not 'eminence' or 'popularity' or 'talent' though these are not necessarily excluded. As for Tendulkar, he is not known for 'speaking up' on, let alone 'debating', even the issues concerning cricket. Furthermore, he can represent only cricket - the only game that needs no 'support' of any kind in this country, for it already has ample.

Thus, the bottomline is: 'sports' as a general category is not available for the President to choose from under Article 80, and Tendulkar neither 'debates' nor 'represents'. Therefore, for the purpose of Article 80, 'sports' is out in general and Tendulkar in particular, which makes the decision to have Tendulkar in Rajya Sabha unconstitutional. Tendulkar deserves a Bharat Ratna, but not a seat in Parliament.

No disrespect intended, Master Blaster.

-------------------------
1. Framing of India’s Constitution, Edited by B. Shiva Rao, Vol. 5, p. 422.
2. Constituent Assembly Debates, Vol. IV, pp. 923-928.
3. Framing of India’s Constitution, Edited by B. Shiva Rao, Vol. 5, p. 423.
4. Framing of India’s Constitution, Edited by B. Shiva Rao, Vol. 3, pp. 538-539.
5. Ibid., p. 539.
6. Framing of India’s Constitution, Edited by B. Shiva Rao, Vol. 5, p. 432.
 
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