British plan for judges way to go for Rajya Sabha?

British plan for judges way to go for Rajya Sabha?
The former chief justice of India Ranjan Gogoi outside Parliament. (Express Photo: Tashi Tobgyal)

Nothing exposes the problems of Indian democracy like an election in state Assemblies for a seat in the Upper House of Parliament, the Rajya Sabha. It is called Rajya Sabha (Chamber of Princes) because under the Government of India Act, 1935, princely states were supposed to send their representatives to that chamber. After Partition, the new Constitution and Sardar Vallabhbhai Patel got rid of princely states. What we have instead are elections in state Assemblies where the electorate is small, with their choice predictable by their party affiliation. The only excitement is caused by the weak attachment these ‘voters’ have towards the party to which they belonged when they entered the Assembly in the first place. The most sordid and open auction takes place to snatch the one or two votes from one party into another. The system trusts these voters so little that each voter has to show the ballot paper to the chief whip of the party before casting it as ‘secret’ ballot! England used to have such constituencies with few voters and domination by local Lords. They were called ‘Rotten boroughs’. In 1832, the Great Reform Bill took the big step towards proper elections.

But we are now stuck with what there is. All parties have taken part in the system and benefited from its peculiarities. No party will try to reform it. The only thing one can say is that the Rajya Sabha elections make the fragile nature of Indian democracy obvious.

That said, it is interesting that the nomination of former chief justice of India Ranjan Gogoi to the Rajya Sabha has raised doubts about the independence of the judiciary. He is of course not the first to have been so honoured by the Executive. Yet the idea that judges should sit in the Upper House of the Legislature upon retirement is part of the British Constitution. Each and every judge of the Supreme Court has the right to sit in the House of Lords for the rest of his or her life.

Indeed, before 2005, when there was reform of the judiciary, the highest court was a Committee of the House of Lords. All the judges were simultaneously legislators and sat in judgment about the laws which they had implicitly taken part in formulating. No one then thought this was a corrupt practice. It was changed because it fell foul of the doctrine of Separation of Powers on which the European Union Constitution is based.

Why not adopt the British reform for the Rajya Sabha, making all retiring justices of the Supreme Court automatically nominated members of the Upper House? Since their appointment would be automatic, there would be no question of patronage of the powers that be. Nominated members can also behave in a non-partisan or at least an unpredictable way. The House of Lords has Cross Bench Peers (Judges sit as Cross Bench) who bring a lot of ballast to the system by their independence.

It would require a Constitutional amendment to make this change. If nomination is automatic upon retirement and the tenure 10 years, there is no scope for doubting the independence of such new members in the Rajya Sabha. They could elevate the Upper House to a level it deserves.

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