J&K's Rajya Sabha vacancies raise rotation issue; prez reference likely

New Delhi: Jammu & Kashmir's four Rajya Sabha seats, vacant since February 2021, have prised open a constitutional question that may invite a presidential reference, ET has learnt.

The reason: Due to imposition of rounds of emergency over the years, impacting its Upper House representation, all four of its Rajya Sabha MPs retire together after completion of their six-year term and not in rotation, as mandated in Article 83.

The same is the case with seats from Punjab and Delhi where all the RS members retire together instead of every two years. The Election Commission of India (ECI) is learnt to be in a predicament over this. ET gathers that a presidential reference may soon be made. Article 143 allows the President to refer an important question of law or of public importance to the Supreme Court for its opinion.


Delhi to J&K

The deviation in J&K has come due to the emergency imposition in 1990 which lasted six years and ended with all its RS members serving concurrent tenures. Since all four RS members representing J&K completed their term in February 2021 -- former MPs Ghulam Nabi Azad and Nazir Ahmad Laway closed their tenure on February 15 while Mir Muhammad Fayaz and Shamsher Singh Manhas's term came to end on February 10 - the principle of rotation stands impacted. If ECI announces RS elections to the four vacant seats, their term will again be concurrent, which is a departure from Article 83. Similarly, all seven RS seats for Punjab fell vacant together in 2016, due to rounds of emergency imposition until 1987 that disturbed the mathematical formula for RS members to retire every two years. As a result, all its current six Rajya Sabha MPs, elected in April-July 2022, will retire in April-July 2028.

Delhi is faced with a similar scenario with all three RS seats filled together -- a situation that arose due to lack of election/nominations by legislative assembly for a long time. All three Delhi Rajya Sabha MPs -- Swati Maliwal, Sanjay Singh and Narayan Das Gupta --elected on January 28, 2024, will retire on January 27, 2030.

Rotation Vs Exigencies

This is seen as a departure from Article 83 which enunciates the "principle of rotation", considered the hallmark of the RS, making it a "permanent chamber". The Article states that RS shall not be "dissolved" like the Lok Sabha every five years but one-third of the members shall retire every two years.

The rationale 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 retirement principle is also to ensure that fresh talent from various states keeps flowing into the Upper House.

However, due to various "exigencies" -- imposition of national/state emergency, reorganisation of states to no elections/nominations by the legislative assembly -- the formula for retirement of RS members was impacted.

Rajya Sabha being a "continuous" house, vacant seats are filled as soon as they arise. Consequently, as soon as the exigency was removed, ECI would conduct elections to fill vacant seats together - leading to the deviation that is now under question.