The Supreme Court on August 22 dismissed a writ petition filed by former Rajya Sabha member Kuldip Nayyar and some others in which they had challenged the 2003 amendment to Section 3 of the Representation of People Act, 1951.

The amendment did away with the requirement of domicile in a state as a pre-requisite for getting elected to the Rajya Sabha from there. In the amended version, a person seeking election to the Rajya Sabha does not have to be a resident of the state from which he is elected. He only needs to be an Indian living in India.

The Supreme Court is reported to have said, "The impugned amendment cannot be assailed as unconstitutional. It does not transgress the basic structure of the Constitution of India. Residence is not a constitutional requirement, it is only a qualification."

There are many who regard this as being wrong.

The Rajya Sabha, they say, was intended to be the Council of States. Kuldip Nayyar once quoted B R Ambedkar as saying, 'States are represented in the Rajya Sabha and the people in the Lok Sabha.'

A friend of mine, Dr Kripa Sridharan, who teaches political science, has a different take on it. She says the roles of the Rajya Sabha and the Lok Sabha have got inverted. Her view is that, after 1996, thanks to the pre-eminence of regional parties in the Lok Sabha, for all practical purposes, it is the lower House that represents states' interests. Hence her oft-repeated query: who needs the Rajya Sabha?

She has a point because the importance of the Upper House in most places has been declining. Also, its presence is not a universal given, as many Indians seem to think. Only 66 out of 193 countries have a bicameral system. So bicameralism is by no means a 'natural' state for a country.

Besides, unlike in India, the Lower House does its job properly in most countries.

The history of bicameralism is interesting but this is not the place to go into it. Suffice it to say that initially, in Europe, it was a way of accommodating newly emergent political interests. Then the Americans adapted it as a device to accommodate the interests of their states. But the reasons that impelled America to do so are very different from the ones cited in India.

American states enjoyed a completely different relationship with the federal government, and were almost sovereign. A more proximate counterpart in India would have been the Chamber of Princes because that relationship came closer to the American way of looking at the non-representational aspects of federalism, namely, how to devolve as much power as possible to the provinces that chose to surrender certain crucial elements of state power to a distant authority.

But, as we did with most of our Constitution, we simply copied the American bicameral idea without thinking too deeply about it. Indeed, given the scheme and design of our Constitution, our federalism is a bit of a sham because it flows downwards from the Centre, rather than upwards from the States.

Article 356 is living proof of that, as is Entry 97 of the Union List, not to mention the Articles that deal with financial relations between the Centre and the states. In its spirit, our Constitution is imperial. But let us leave that aside for a moment and review the following four propositions.

• Formal regional parties -- regional meaning confined to one state -- now account for around half the seats in the Lok Sabha. This proportion is probably set to increase in the elections to come.
• In terms of the interests they represent, even the so-called national parties are now essentially regional. This is partly because of the aggregative definition of 'national' that is used in the electoral context. A party needs to win only more than 5 per cent of the total votes polled to become national, regardless of the distribution of those votes. Hence, the Communist Party of India-Marxist is a 'national' party even though it is concentrated in just two-and-a-half states.
• Thanks to the criteria used for candidate selection by political parties -- caste, money and muscle, in that order -- there is less talent available in the Lok Sabha for ministerial posts than in the Rajya Sabha. It is no coincidence that the best ministers are from the Rajya Sabha, which also provides a way of bringing decent folk into politics. As a result, the quality of parliamentary debate, which forms an essential element of governance and legislation, is also better than it is in the Lok Sabha.
• For legislation, it is Parliament in its entirety that should matter, not this or that House. The balance between them has to be viewed as a dynamic process and we must accept that it will keep changing constantly, if imperceptibly.

In other words, we need to guard against constitutional fundamentalism. As part of this, it is necessary to recognise that the interests of a state are not necessarily best served by persons who are domiciled there. The domicile requirement for senators was introduced only later in the United States. It serves a purpose there. But do we need an identical justification here also? Or should we adapt as necessary?