Presidential reference likely over rotation issue
Nishikant Khajuria
JAMMU, Aug 10: Elections for the four Rajya Sabha seats in Jammu and Kashmir are unlikely to be held in near future as the Election Commission of India (ECI) is learnt to be exploring resumption of rotation of these Upper House seats, mandated under Article 83 of Indian Constitution.
Sources told the Excelsior that Election Commission of India was not in hurry for filling up these Rajya Sabha seats, vacant since February 2021, before the `principle of rotation’ is reinstated.
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As all the four Rajya Sabha members in Jammu and Kashmir retire together after completion of their six-year term and not in rotation, as mandated in Article 83, sources said that the Constitutional question is likely to invite a Presidential reference.
Pertinent to mention that the imposition of Central rule in J&K over the years has impacted its Upper House representation and all the RS members retire together instead of every two years. Same is the case with seats from Punjab and Delhi where all the RS members retire together.
The Election Commission of India (ECI) is learnt to be in a predicament over this situation and according to the sources, a Presidential reference may soon be made under Article 143, which allows the President of India to refer an important question of law or of public importance to the Supreme Court for its opinion.
In case of Jammu and Kashmir, the deviation from rotation system has come due to the imposition of Governor’s rule in 1990 which lasted six years and ended with all its RS members serving concurrent tenures. In the latest, all four RS members representing J&K completed their term in February 2021. Former MPs Ghulam Nabi Azad and Nazir Ahmad Laway completed their term on February 15, 2021 while Mir Muhammad Fayaz and Shamsher Singh Manhas’s term came to end on February 10, 2021.
However, this practice is seen as a departure from Article 83, which enunciates the “Principle of Rotation”, considered the hallmark of the Upper House, making it a “Permanent Chamber”. The Article 83 of the Constitution states that Rajya Sabha shall not be dissolved like the Lok Sabha every five years but one-third of the Upper House members shall retire every two years.
The rationale behind rotation was to ensure that a Parliamentary system must have in place a “Chamber of legislative continuity” in case the Lok Sabha is dissolved for some reason. This rotational retirement principle also ensures that fresh talent from various states keeps flowing into Upper House of the country. However, due to various exigencies the formula for retirement of Rajya Sabha members was impacted and ECI was conducting elections to fill vacant seats together – leading to the deviation that is now under question.
As the Constitutional question over mandatory rotation of Upper House seats is likely to invite a Presidential reference under Article 143, sources said that elections to four vacant RS seats are unlikely to be held in near future, at least this year.
Further, election on the two vacant Assembly seats (Nagrota and Budgam) are also required to be held before filling up Rajya Sabha seats, opined senior legal experts.
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