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British plan for judges way to go for Rajya Sabha?

Rajya Sabha

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British plan for judges way to go for Rajya Sabha?

Rajya Sabha:

  • The Upper House in Indian Parliament 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.

Elections to RS after Constitution came into force:

  • With Constitution in force, Rajya Sabha members are elected by members of legislative assemblies through proportional representation by means of single transferable vote (PRS by STV).
  • In this elections, the electorate is small, with their choice depending on the party affiliation.

RS elections highlight problems in our democracy:

  • The problems of Indian democracy are frequently and loudly exposed by the elections in state Assemblies for a seat in the Upper House of Parliament, the Rajya Sabha.
  • When elections for some Rajya Sabha seats get contested and exciting, some of the ‘voters’ (MLAs) tilt towards a party different from the party they belonged when they entered the Assembly in the first place.
  • There are allegations that sometimes votes are even sold when one or two votes can decide the fate of a candidate.
  • All parties have taken part in the system and benefited from the peculiarities of elections to Rajya Sabha.
  • No party is seeking to reform it.

Nominated members of Rajya Sabha:

  • 12 members are nominated to RS by the President of India from amongst persons who have special knowledge or practical experience in respect of such matters as literature, science, art and social service.
  • This is to ensure that the nation must also receive services of the most distinguished persons of the country who have earned distinction in their field of activity, many of whom may not like to face the rough and tumble of the election.
  • The Indian President has recently nominated former chief justice of India Ranjan Gogoi to the Rajya Sabha.

Raised questions about judicial independence:

  • The nomination of former CJI Ranjan Gogoi to the Rajya Sabha has raised doubts about the independence of the judiciary.
  • Yet the idea that judges should sit in the Upper House of the Legislature upon retirement is borrowed from the British Constitution.

British SC judges in their Upper House:

  • Each and every judge of the Supreme Court has the right to sit in the House of Lords (Upper House of British Parliament) for the rest of his or her life.
    1. In fact, before 2005, when there was reform of the British judiciary, their Supreme Court was a Committee of the House of Lords.
    2. All the judges were simultaneously legislators and sat in judgment about the laws which they had implicitly taken part in formulating.
    3. It was changed in 2005 because it fell afoul of the doctrine of Separation of Powers on which the European Union Constitution is based.

Should India adopt British like system?

  • There is some opinion that India could 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 anyone.
  • Nominated members can also behave in a non-partisan or at least an unpredictable way.

Conclusion:

  • Adopting a change like nominating all retired SC judges to Rajya Sabha would require a Constitutional amendment.
  • 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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